E.E.O.C. v. West Louisiana Health Services, Inc.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 90-4594
_______________
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
ELENORIA ANDERSON,
Movant-Appellant,
VERSUS
WEST LOUISIANA HEALTH SERVICES, INC.,
Defendant-Appellee.
* * * * * *
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
VERSUS
WEST LOUISIANA HEALTH SERVICES, INC.,
Defendant-Appellee,
VERSUS
BETTY JO LEWIS,
Intervenor-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
_________________________
Before POLITZ, Chief Judge, SMITH, Circuit Judge, and FITZWATER,*
District Judge.
*
District Judge of the Northern District of Texas, sitting by designa-
tion.
JERRY E. SMITH, Circuit Judge:
Elenoria Anderson and Betty Jo Lewis appeal the decision of a
federal magistrate to dismiss their respective title VII com-
plaints. They challenge the jurisdiction of the magistrate to
preside over, and enter judgment in, their respective cases.1 We
affirm as to Anderson but vacate as to Lewis and remand.
I.
On April 4, 1988, the Equal Employment Opportunity Commission
(EEOC) filed suit in federal district court, No. CV88-0950, against
West Louisiana Health Services, Inc. ("Health Services"), which
operates Beauregard Memorial Hospital. The complaint alleged that
Health Services had violated title VII by discharging Anderson in
retaliation for her opposition to alleged violations of title VII
and because she had filed complaints with both the National
Association for the Advancement of Colored People and the EEOC.
Health Services replied that Anderson's dismissal was unrelated to
her complaints, stating that she had been terminated because of
insubordination and improper discharge of her duties. Anderson did
not intervene in that suit.
After Health Services filed its answer, both parties executed
forms consenting to a trial before a magistrate and to entry of
1
The appellee, Health Services, contends that Lewis has not raised the
issue of jurisdiction. While jurisdictional issues may always be raised sua
sponte, we observe that in her Statement Regarding Oral Argument in her
opening brief, Lewis refers to "[t]he legal issue in this appeal" as "Juris-
diction of Magistrates."
2
final judgment by the magistrate. In July 1988, the district judge
issued an order of reference assigning all further proceedings and
entry of judgment to the magistrate "in accordance with Title 28,
U.S.C. 636(c) and the foregoing consent of the parties."
On September 30, 1988, the EEOC filed another suit, No. CV88-
2445, against Health Services alleging that the hospital was
engaging in unlawful employment practices, including improperly
refusing to re-hire Lewis. Lewis and her husband were involved in
the Anderson dispute, as Mr. Lewis, a security guard at the
hospital, was refusing to reduce to writing his reports on the
employee pilfering that had resulted in Anderson's dismissal.
Docket entries were made in Anderson's case as early as June 9,
1988, indicating that the Lewises would be deposed. Lewis,
represented by separate counsel, intervened on October 31, 1988.
On November 28, 1988, the district clerk sent all parties of
record in No. CV88-2445 a notice of right to consent to the
exercise of civil jurisdiction by a magistrate and forms by which
to exercise such consent. By December 12, 1988, both the EEOC and
Health Services had executed and returned consent forms pursuant to
Fed. R. Civ. P. 73; Lewis never filed such a consent.
On December 19, 1988, the EEOC filed a motion to consolidate
the two cases, stating, "The Intervenor has no objection to the
granting of this Motion." The next day, the district judge granted
the motion; thereafter, all court entries were made on one
consolidated docket sheet under No. CV88-0950. The cases were
treated as a single proceeding for purposes of trial and judgment.
3
Trial was held before the magistrate beginning August 28,
1989; he filed his ruling and formal judgment on May 29, 1990,
dismissing the EEOC's claims and Lewis's intervention. The judgment
was docketed on May 30. Since the magistrate issued the final
judgment, he sent no report or recommendation to the district
judge, who in turn did not enter any form of judgment.
Anderson timely filed a notice of appeal on her own behalf on
July 30. Lewis filed a pro se notice of appeal on August 1 S)Q
sixty-one days after the date of entry of judgment by the magis-
trate. Lewis's attorney's motion to withdraw as counsel of record
was granted three weeks later.
II.
Anderson argues that the magistrate erred in conducting the
trial and rendering judgment pursuant to 28 U.S.C. § 636(c), where
Lewis never formally had consented to waive her right to have her
case tried by a district judge. She asserts that Lewis's failure
to file a written consent form deprived the magistrate of jurisdic-
tion. She does not challenge the magistrate's decision on its
merits.
Unlike the cases Anderson cites to buttress her argument,
Anderson's was not a case in which a party failed to consent to the
reference to the magistrate: Anderson, Health Services, and the
EEOC did consent to the reference, in writing. If Lewis had been
a party to Anderson's case, Lewis's lack of consent would have
required that we consider Anderson's argument. At the time of the
4
magistrate's trial, however, Anderson's and Lewis's respective
cases, although consolidated, still had their individual identi-
ties. As we have stated,
consolidation does not cause one civil action to emerge
from two; the actions do not lose their separate iden-
tity; the parties to one action do not become parties to
the other. As a consequence, the subsequent consolida-
tion of [plaintiff's] two lawsuits did not give the
district court subject matter jurisdiction to adjudicate
his action [where no federal jurisdiction existed
independently].
McKenzie v. United States, 678 F.2d 571, 574 (5th Cir. 1982)
(citations omitted).
We also "view each consolidated case separately to determine
the jurisdictional premise upon which each stands." Kuehne & Nagel
v. Geosource, Inc., 874 F.2d 283, 287 (5th Cir. 1989). There, the
district court consolidated two cases for trial. We examined the
jurisdictional basis of each case as it existed before the cases
were consolidated and found that although we had no jurisdiction
over one case, we could consider the merits of the other. See also
Alfred Dunhill, Inc. v. Republic of Cuba, 425 U.S. 682, 735 (1976)
(individual suits that are consolidated do "not lose their separate
identities for purposes of consolidation").
Although the aforementioned cases differ from the instant case
in that they involved the issue of federal, rather than a magis-
trate's, jurisdiction, we see no reason not to apply their analysis
here. The magistrate thus had jurisdiction over No. CV88-0950
(regarding Anderson) because both the EEOC and Health Services had
executed written consent. The magistrate did not have written
consent from all of the parties in No. CV88-2445 (regarding Lewis),
5
however, as only the EEOC and Health Services had given consent.
Accordingly, we affirm the judgment of the district court as it
applies to Anderson.
III.
We next consider whether Lewis's appeal should be dismissed
because her notice of appeal was not timely. It should not. Under
Fed. R. App. P. 4(a)(1), a party wishing to appeal a matter in
which an agency of the United States is a party must file a notice
of appeal within sixty days after the entry of judgment. It is
undisputed that Lewis filed her notice sixty-one days after
judgment. Ordinarily, such tardiness would leave us without
jurisdiction. Budinich v. Becton Dickinson & Co., 486 U.S. 196,
203 (1988).
The record reflects, however, that Anderson filed her notice
of appeal on July 30, within the required period. Fed. R. App. P.
4(a)(3) states,
If a timely notice of appeal is filed by a party, any
other party may file a notice of appeal within 14 days
after the date on which the first notice of appeal was
filed, or within the time otherwise prescribed by this
Rule 4(a), whichever period last expires.
See Mikeska v. Collins, 928 F.2d 126 (5th Cir. 1991) (per curiam)
(on rehearing). Because Lewis's notice was filed within the
prescribed period after Anderson timely filed her notice, Lewis's
appeal is timely if we deem Lewis and Anderson to be parties to the
same case for the purpose of appellate jurisdiction.
6
The rule of McKenzie v. United States, 678 F.2d 571, 574 (5th
Cir. 1982), discussed in part II, supra, does not resolve the issue
at hand. We have recognized that, although consolidation does not
eliminate the independent existence of the actions, where the
claims have been treated as one throughout the trial, they may be
treated similarly for purposes of the notice of appeal:
[T]he issue here is not whether in a general sense
separate civil actions remained after consolidation. The
issue is whether, because of consolidation, and because
of the terms of the judgment and the expectations of the
parties and the district court, the district court
entered but a single judgment that disposed of all the
claims asserted in the consolidated suits, from which
only one appeal need be taken by any party aggrieved by
any or several of the claims decided, whether or not
initially asserted in more than one of the consolidated
suits.
Harcon Barge Co. v. D&G Boat Rentals, 746 F.2d 278, 287 (5th Cir.
1984), rehearing en banc on other grounds, 784 F.2d 665 (5th Cir.),
cert. denied, 479 U.S. 930 (1986). Cf. Barnett v. Petro-Tex Chem.
Corp., 893 F.2d 800, 805 (5th Cir.), cert. denied, 110 S. Ct. 3274
(1990) (when cases have been consolidated for trial and disposed of
by entry of only one final judgment, a single notice of appeal may
be used by all appealing parties).
Here, as in Harcon Barge, although the court could have chosen
to treat the cases otherwise, the magistrate issued only one order
deciding both consolidated actions, and the clerk used only one
docket sheet. See Harcon Barge, 746 F.2d at 286. The actions were
consolidated eight months before trial and were treated together
thereafter. Although their actual cases and causes of action
remained separate, Lewis and Anderson thus were parties to the same
7
judgment, and we conclude that Lewis's appeal was filed timely,
i.e., within the fourteen-day period of rule 4(a)(3).
We further note that such a holding is not inconsistent with
our conclusion that the cases should be treated as separate for the
purpose of determining the magistrate's jurisdiction; the require-
ments of trial and appellate jurisdiction are not identical, and
this indeed is an appeal from a joint ruling on separate suits
tried together. To hold otherwise would discourage warranted
consolidations and would disserve the interest of judicial economy.
IV.
We now consider whether the magistrate had jurisdiction over
Lewis and her case and, concluding that he did not, we vacate the
judgment as to Lewis and remand to the district court for further
proceedings. The district court referred Anderson's case to the
magistrate under section 636(c).2 Because Lewis's trial counsel
2
As of July 1988, § 636(c) read in relevant part as follows:
(c) Notwithstanding any provision of law to the contrary S)Q
(1) Upon the consent of the parties, a full-time United States magis-
trate or a part-time United States magistrate who serves as a
full-time judicial officer may conduct any or all proceedings in a
jury or nonjury civil matter and order the entry of judgment in
the case, when specially designated to exercise such jurisdiction
by the district court or courts he serves . . . .
(2) If a magistrate is designated to exercise civil jurisdiction under
paragraph (1) of this subsection, the clerk of court shall, at the
time the action is filed, notify the parties of their right to
consent to the exercise such jurisdiction. The decision of the
parties shall be communicated to the clerk of court. Thereafter,
neither the district judge nor the magistrate shall attempt to
persuade or induce any party to consent to reference of any civil
matter to a magistrate. Rules of court for the reference of civil
matters to magistrates shall include procedures to protect the
voluntariness of the parties' consent.
8
indicated that his client had consented to consolidation, and
because the record does not appear to contain any evidence that
Lewis objected to the consolidation or the reference at any time
before judgment, Health Services argues that Lewis impliedly
consented to the reference or, alternatively, that she waived any
objection.
Consent to trial by a magistrate under section 636(c) cannot
be implied. In Archie v. Christian, 808 F.2d 1132, 1137 (5th Cir.
1987) (en banc), we held that
before commencing the actual trial of any civil case in
which a magistrate is to preside pursuant to the author-
ity of 28 U.S.C. § 636(c), jury or nonjury, he shall
inquire on the record of each party whether he has filed
consent to the magistrate's presiding and shall receive
an affirmative answer from each on the record before
proceeding further.
Nothing in the record reflects such an inquiry and response. Thus,
we must vacate the magistrate's decision unless we find that Lewis
waived her right to trial by a district judge. She did not.
Health Services argues that the matter of a party's consent to
a magistrate's jurisdiction is a procedural one, which can be
waived, rather than a jurisdictional one, which cannot. See
Caprera v. Jacobs, 790 F.2d 442, 445 (5th Cir. 1986). It cites no
precedent that would compel that conclusion.
In Archie, we held that where a district court referred a
civil case for trial before a magistrate, in order for him to make
findings and recommendations, without obtaining the consent of all
parties, the defect was procedural: "The flaw was in the procedure
9
by which that judgment was arrived at: by generally delegating the
conducting of jury trials to officials not authorized to do such
work without consent of the parties and by the district judges
[sic] adopting as his own the product of that improper process."
808 F.2d at 1134. See also Parker v. Mississippi State Dep't of
Pub. Welfare, 811 F.2d 925 (5th Cir. 1987).
It is important to note, however, that in Parker and Archie
the respective district courts, not the magistrates, entered
judgment. In contrast, the magistrate in the case before us
entered judgment under section 663(c)(1). We previously have held
that to be a significant distinction.
For instance, in Sockwell v. Phelps, 906 F.2d 1096 (5th Cir.
1990), after a magistrate who was to preside resigned and was
replaced, the new magistrate allowed the plaintiffs to withdraw
their written consent. The magistrate then conducted the proceed-
ing as an evidentiary hearing but later decided that he had erred
in granting the plaintiffs' motion to withdraw their consent, and
consequently he rendered judgment pursuant to section 636(c).
On appeal, the defendants argued that the magistrate was
without jurisdiction because he had granted the plaintiffs' request
to withdraw their consent before the proceeding began. We agreed,
noting that once the magistrate had allowed the withdrawal, "the
situation was as if the section 636(c) consent had never been
given, and, accordingly, the magistrate simply lacked the power to
try the case and enter judgment in it." Id. at 1098. The opinion
distinguished Archie by noting that in Sockwell "the judgment in
10
question is that of the magistrate, not the district judge, so the
error is jurisdictional, or at least plainly more fundamental than
that in Archie." We drew a similar distinction in McLeod,
Alexander, Powel & Apffel, P.C. v. Quarles, 925 F.2d 853, 857 (5th
Cir. 1991), noting that "it is the law of this circuit that when
the judgment on a matter is entered by the district court, and not
the magistrate, failure to obtain the consent of the parties to the
proceeding before the magistrate is only a procedural error, not a
jurisdictional error" (emphasis added), plainly indicating that the
converse also must be true.3 We thus follow our previous reasoning
and vacate the judgment as to Lewis and remand to the district
court for appropriate further proceedings.4
3
Other circuits have held that under § 636(c), the magistrate lacks
jurisdiction unless consent is explicit, and such consent cannot be inferred
from the conduct of the parties. See Clark v. Poulton, 914 F.2d 1426 (10th
Cir. 1990); In re San Vicente Medical Partners Ltd., 865 F.2d 1128 (9th Cir.
1989); Silberstein v. Silberstein, 859 F.2d 40 (7th cir. 1988); Hall v.
Sharpe, 812 F.2d 644 (11th Cir. 1987).
4
Recent Supreme Court authority does not bring into doubt our holdings
in Sockwell and McLeod. In Gomez v. United States, 109 S. Ct. 2237, 2248
(1989), the Court held that a magistrate could not conduct voir dire proceed-
ings in a felony trial under 28 U.S.C. § 636(b), as such exceeded the juris-
diction of the judicial officer. In Peretz v. United States, 111 S. Ct. 2661,
2667 (1991), the Court permitted the magistrate to preside over jury selection
where the defendant's counsel, "rather than objecting to the Magistrate's
role, affirmatively welcomed it." We note that both of those cases refer to
reference under section 636(b), whose language, unlike that of section 636(c),
does not explicitly require the parties' consent. Nothing in those opinions
indicates that the Court would conclude that failure to obtain the parties'
explicit consent to reference to the magistrate for trial and entry of
judgment under section 636(c) is a procedural error subject to waiver.
11
V.
We trust that our treatment of this case will be understood as
an analysis of the jurisdictional fence that surrounds the office
of the article III judge, not an implied warning to attorneys and
litigants to consent to trial before a magistrate judge with
trepidation or, worse yet, to consent not at all. The judgment as
to Anderson is AFFIRMED. The judgment as to Lewis is VACATED and
REMANDED.
12