28 U.S.C. § 636(c)(3) (emphasis added). The "paragraph
(1)" reference in section 636(c)(3) is to section 636(c)(1), the
provision affording the magistrate judge jurisdiction. It states
in part that "[u]pon the consent of the parties, a full-time United
States magistrate judge . . . may conduct any or all proceedings
in a jury or non-jury civil matter and order the entry of judgment
in the case, when specially designated to exercise such jurisdiction
by the district court." Id. § 636(c)(1) (emphasis added); see also
FED. R. CIV. P. 73 (establishing the procedures contemplated by
section 636(c)). Our appellate jurisdiction therefore depends on
the magistrate judge's lawful exercise of jurisdiction, Nasca v.
Peoplesoft (In re Marriage of Nasca), 160 F.3d 578, 580 (9th Cir.
1998) (holding that the magistrate judge's "lack of jurisdiction
a fortiori deprives this court of appellate jurisdiction"), which
in turn depends on proper district court designation and the voluntary
consent of the parties to entry of judgment by the magistrate judge,
Estate of Conners by Meredith v. O'Connor, 6 F.3d 656, 659 (9th
Cir. 1993) (holding that "because the magistrate did not [obtain
party consent] to enter a final order, the defendants' notice of
appeal from that order was a nullity"); see also Roell v. Withrow,
123 S. Ct. 1696, 1707 (2003) (Thomas, J., dissenting) ("Absence
of consent means absence of 'judgment,' which, in turn, means absence
of appellate jurisdiction.").
[1] Consent thus emerges from the statute as
the touchstone of magistrate judge jurisdiction. Subsection (c)(3),
in addition to referring to subsection (c)(1), expressly reinforces
its insistence on consensual designation of a case to a magistrate
judge for disposition. This statutory structure was designed by
members of Congress who explicitly considered voluntary consent
imperative. For example, the Senate Committee on the Judiciary stated
when recommending passage of the Federal Magistrate Act of 1979
(the bill enacting most of 28 U.S.C. § 636(c)'s current text) that
some . . . have expressed concern that the designation of certain
classes of cases for trial before magistrates . . . might subtly
coerce litigants into consenting in those cases. The bill clearly
requires the voluntary consent of the parties as a prerequisite
to a magistrate's exercise of the new jurisdiction. The committee
firmly believes that no pressure, tacit or expressed, should be
applied to the litigants to induce them to consent to trial before
the magistrates.
S. REP. NO. 96-74, at 13 (1979), reprinted in
1979 U.S.C.C.A.N. 1469, 1481; see also H.R. REP. NO. 96-287, at
13 (1979) ("The bill makes clear that the knowing and voluntary
consent of the parties is required before any civil action may be
referred to a magistrate; no coercion will be tolerated."); H.R.
CONF. REP. NO. 96-444, at 7-8 (1979), reprinted in 1979 U.S.C.C.A.N.
1487, 1488-89 ("[T]he voluntary consent of the parties is required
before a civil action may be referred to a magistrate for a final
decision."); S. CONF. REP. NO. 96-322, at 7-8 (1979) (same).
The voluntary consent requirement was designed
to assuage constitutional concerns, as Congress did not want to
erode a litigant's right to insist on a trial before an Article
III judge. See Dixon v. Ylst, 990 F.2d 478, 479 (9th Cir. 1993)
("A party to a federal civil case has, subject to some exceptions,
a constitutional right to proceed before an Article III judge."),
citing Pacemaker Diagnostic Clinic of Am., Inc. v. Instromedix,
Inc., 725 F.2d 537, 541 (9th Cir. 1984) (en banc). The House of
Representatives Committee on the Judiciary reported that consent
to both the magistrate judge and his or her entry of final judgment
was a primary factor of "a solid constitutional foundation for creation
of the Federal magistrates system." H.R. REP. NO. 96-287, at 8;
see also S. REP. NO. 96-74, at 4, reprinted in 1979 U.S.C.C.A.N.
at 1473 ("In light of this requirement of consent, no witness at
the hearings on the bill found any constitutional question that
could be raised against the provision."); 125 CONG. REC. 26822 (1979)
(statement of Rep. Robert Kastenmeier) (rebuffing a constitutional
challenge to the bill by arguing in part that "the magistrates'
jurisdiction is entirely consensual. If any party . . . does not
care to have his or her case heard by a magistrate, there is no
compulsion to do so."); H.R. REP. NO. 96-287, at 31 (dissenting
views of Rep. Elizabeth Holtzman) (opining that the legislation
fosters too great a risk of coerced consent for it to pass constitutional
muster). Congress's wise decision to include a robust voluntary
consent prerequisite resulted in judicial approval of the legislation.
We held that "in light of the statutory precondition of voluntary
litigant consent and the provisions for the appointment and control
of the magistrates by Article III courts, the conduct of civil trials
by magistrates is constitutional." Pacemaker Diagnostic Clinic of
Am., 725 F.2d at 540.
The statutory backdrop described above has prompted
us to pronounce "that a clear and unambiguous expression of consent
is required to vest the magistrate with authority under subsection
(c)," Alaniz v. Cal. Processors, Inc., 690 F.2d 717, 720 (9th Cir.
1982) (per curiam), and that such consent be "explicit." In re San
Vicente Med. Partners, 865 F.2d 1128, 1131 (9th Cir. 1989); see
also Kofoed v. Int'l Bhd. of Elec. Workers, Local 48, 237 F.3d 1001,
1004 (9th Cir. 2001) ("Where the magistrate judge has not received
the full consent of the parties, he has no authority to enter judgment
in the case . . . .").
The Supreme Court's recent decision in Roell
v. Withrow, 123 S. Ct. 1696 (2003), does little (at least in a case
such as this) to diminish our precedent's stringent requirement
that litigants clearly indicate their consent and that such consent
be voluntary. Roell held that voluntary consent could be implied
in limited, exceptional circumstances. Id. at 1703 n.7. In Roell,
the parties' behavior "clearly implied their consent"; "the record
shows that [they] voluntarily participated in the entire course
of proceedings before the Magistrate Judge[ ] and voiced no objection
when, at several points, the Magistrate Judge made it clear that
she believed they had consented." Id. at 1700.
B. Proceedings Before the Magistrate Judge and
District Judge
[5] It is evident from the record that the magistrate
judge, as well as the district court, did not mitigate any confusion
the Notice Form may have sparked; their response to Anderson's objections
only seemed to compound it. Anderson's first post-Notice Form pleading
opposed WoodCreek's motion to dismiss and moved for summary judgment.
As both motions are among those upon which a magistrate judge cannot,
on mere designation by the district court, issue a dispositive order,
28 U.S.C. § 636(b)(1)(A), an "order [for] the entry of judgment"
on either motion would require the parties' prior consent. Id. §
636(c)(1). Anderson and Wills's refusal was obvious: their pleading
caption stated in part "Plaintiffs Deny Magistrates Jurisdiction,"
and they stated in the text that "Plaintiffs Wills and Anderson
do hereby deny Magistrates [sic] jurisdiction." Clearly, there was
a proper objection to magistrate judge jurisdiction, and there was
no judicial response.
6] The next round of pleadings paralleled the
previous one. This time, WoodCreek moved to remove Wills as a party,
another motion on which an Article III judge must ultimately rule
unless the parties consent otherwise. But there was no consent.
On the contrary, Anderson and Wills again resisted. Their opposition
included in the caption "Plaintiffs [sic] Motion To Deny Magistrates
[sic] Jurisdiction" and declared in text that "[p]ursuant to Fed.
R. Civ. P. 73[,] Plaintiffs do hereby deny Magistrates [sic] Jurisdiction
and move the Court to assign a Federal District Court Judge to this
instant case." A pattern emerges: the motions on which WoodCreek
requested a ruling entailed entry of judgment, and hence required
the parties' prior consent; nonetheless, Anderson and Wills unequivocally
refused to submit them to the magistrate judge's jurisdiction.
7] We pause to make an additional critical observation:
Anderson and Wills cite Rule 73 in their motion requesting magistrate
judge jurisdiction and requesting an Article III judge. Rule 73
implements the procedural protections envisioned in 28 U.S.C. §
636(c), and therefore only addresses the prerequisites of a magistrate
judge-conducted trial or magistrate-issued dispositive order.
Notwithstanding subsection 636(c), the magistrate judge's jurisdiction
over any pretrial nondispositive matters, including magistrate recommended
dispositions, is not contingent on litigant consent, 28 U.S.C. §
636(b)(1), and Rule 72, not 73, codifies the attendant procedures.
Significantly, then, Anderson and Wills's citation of Rule 73, and
not Rule 72, demonstrates they were challenging the magistrate judge's
authority under subsection (c) to conduct their trial and subsequently
enter judgment, not the nondispositive pretrial matters of subsection
(b)(1). This is not surprising, given the Notice Form itself only
cited Rule 73 and is far from clear that the assigned magistrate
judge's jurisdiction is to be confined, at least until the parties
consent, to nondispositive matters.
[8] The magistrate judge's referral of the motion
to the district court and the district court's corresponding denial
are not responsive to this nuance. To recapitulate, the magistrate
judge simply states he is "[r]eferring Plaintiff's Motion to Deny
Magistrate's Jurisdiction to Judge Michael R. Hogan for further
action. This case is stayed pending Judge Hogan's ruling." The district
court's order, issued four days later, is equally unresponsive:
"This court having considered 'Plaintiffs Motion To Deny Magistrates
Jurisdiction' (#17) in this matter, IT IS HEREBY ORDERED that plaintiff's
motion is denied." Neither ruling gives any indication of the extent
to which it is upholding the magistrate judge's jurisdiction. Both
fail to specify whether the orders simply permit the magistrate
judge to continue considering nondispositive matters (i.e., those
covered by Rule 72 and 28 U.S.C. § 636(b)(1)) or whether the magistrate
judge is being given a green light to conduct a full-fledged trial
and order entry of the corresponding judgment (i.e., proceedings
governed by 28 U.S.C. § 636(c) and Rule 73).
WoodCreek contends the order was limited to 28
U.S.C. § 636(b) and consequently had no effect on the magistrate
judge's potential subsection (c) authority to dispose of the case.
That strikes us as a particularly attenuated assertion. Since Anderson
and Wills's motion, albeit itself not a model of specificity, referred
to Rule 73 exclusively, we would think that the district court judge's
ensuing order would somehow indicate that he is treating their motion
under Rule 72 and/or subsection (b)(1) if that in fact was the case.
Moreover, there was little on the docket on which the magistrate
judge could rule without the parties' consent. The only nondispositive
motions before him were WoodCreek's motion to make more definite
and certain (itself an alternative to its motion to dismiss) and
Anderson and Wills's corresponding motion for leave to amend their
complaint.
It is apparent that the district judge had before
him a Rule 73 challenge to the magistrate judge's jurisdiction to
enter a final judgment without party consent. In ruling on Anderson's
motion for new trial, the magistrate judge attributes the district
court's denial to Anderson's failure to set forth "extraordinary
circumstances" that would permit the district court, pursuant to
Rule 73(b), to "vacate a reference of [this] civil matter to a magistrate
judge under this subdivision." FED. R. CIV. P. 73(b); see also 28
U.S.C. § 636(c)(4) (same). Although the magistrate judge identifies
what seems to be the relevant Federal Rule of Civil Procedure, he
plucks from it a clearly inapplicable clause. Anderson was not moving
the court to vacate the reference to the magistrate judge for entry
of judgment, but rather was trying to thwart reference of the case
to the magistrate judge in the first place. Cf. Dixon, 990 F.2d
at 480 (determining magistrate judge had jurisdiction because the
plaintiff had filed proper consent initially and made no subsequent
motion to withdraw consent or showing of extraordinary circumstances).
Whether Anderson set forth any "exceptional circumstances" is completely
inapposite.
[9] Anderson did not appeal from the district
court order. Any erroneous denial is relevant only as it may impact
the consent issue. But clearly, under any scenario, the end product
is by no means tailored as WoodCreek and the magistrate judge's
ruling suggest. There simply was no indication that the district
court's order denying Anderson and Wills the opportunity to proceed
before an Article III judge encompassed anything less than her and
his lawsuit in its entirety
[10] We are similarly troubled by the failure
of the magistrate judge and district court judge to "advise [Anderson]
that [she was] free to withhold consent without adverse substantive
consequences." 28 U.S.C. § 636(c)(2). This mandatory requirement
is triggered when a party is advised a second time of the availability
of a magistrate judge. Here, the first offer of a magistrate judge
was in the Notice Form. Anderson rejected the offer. Now the district
judge, in effect, is once more offering the services of the magistrate
judge over Anderson's protest. Was the judge required to advise
Anderson specifically that she could withhold her consent with no
adverse substantive consequences?
[11] This omission of advice is troubling,
given that the judicial action barely comports with subsection (c)(2),
if it comports at all. Had the district court and/or magistrate
judge clarified that the only proceedings subject to the magistrate
judge's jurisdiction were those under subsection (b)(1) and "again
advise[d] the parties of the availability of the magistrate judge"
to order the entry of judgment in the case, the district court and/or
magistrate judge would have been charged with the affirmative duty
to "advise the parties that they are free to withhold consent without
adverse substantive consequences." 28 U.S.C. § 636(c)(2).
The magistrate judge and district judge effectively evaded
subsection (c)(2)'s obligation by remaining silent instead of making
a second advisement. We also observe that the magistrate judge's
and district court's potentially misleading silence is in tension
with the directive that "[r]ules of court for reference of civil
matters to magistrate judges shall include procedures to protect
the voluntariness of the parties' consent." Id.
We need not decide whether the facts of this
case present the functional equivalent of action that triggers the
required advice. We leave that for another day, but we do consider
this episode in our analysis of whether Anderson freely consented
to magistrate judge jurisdiction.
C. Implied Consent
[12] As a final consideration, we do not
infer voluntary consent in this case as the Supreme Court permitted
in Roell v. Withrow. In Roell, the parties "clearly implied their
consent" when they "voluntarily participated in the entire course
of proceedings before the Magistrate Judge[ ] and voiced no objection
when, at several points, the Magistrate Judge made it clear that
she believed they had consented." Roell, 123 S. Ct. at 1700. Anderson's
persistent resistance to the magistrate judge's jurisdiction falls
well short of "clearly implying" consent. In fact, Anderson
more closely fits the profile of a party from whose actions the
Supreme Court strongly suggested it would not infer consent. Anderson
was not "a litigant[ whose] initial act [was] appearing before the
magistrate judge and submitting to her jurisdiction"; instead, Anderson
"insist[ed] on trial before a district judge." Id. at 1702 n.5.
IV.
Lastly, we come to the Consent Form Anderson
finally signed when her plea to the district court was rejected.
Is this Consent Form sufficient to be considered a voluntary renunciation
of her right to have her case heard by an Article III judge? Even
here, Anderson is required to sign as if she were a party's lawyer.
Similar to the Notice Form directed to "counsel," the Consent Form
does not expressly "advise [Anderson] that [she was] free to withhold
consent without adverse substantive consequences." 28 U.S.C. § 636(c)(2);
Fed. R. Civ. P. 73(b).
[13] It is not unlikely, considering the aggregation
of factors outlined above, that a pro se litigant in Anderson's
position would think the district court's order foreclosed the opportunity
to withhold consent. That is, Anderson very well might have felt
compelled to manifest "consent" to the magistrate judge's authority
to enter judgment if her lawsuit were ever to proceed to trial.
This is what she alleges. Nonetheless, although the events leading
up through the district court's denial of Anderson's motion to deny
magistrate judge jurisdiction raise a strong possibility that Anderson
did not voluntarily consent, the record from the district court's
ruling forward, including the magistrate judge's cursory treatment
in his post-trial order, is not sufficiently developed for us to
determine if the consent was voluntary. See Pacemaker Diagnostic
Clinic of Am., 725 F.2d at 546 ("Continued and vigilant supervision
by Article III judges is of course essential to the integrity of
the system, and they must be careful to guard against any compulsion
to induce consent through the imposition of costs, delays, or other
penalties which would be incompatible with the . . . conclusion
that the consent of the parties is essential to the constitutionality
of the Act."). We therefore remand to the district court to determine
whether Anderson voluntarily consented to proceed to judgment before
the magistrate judge as section 636 requires in order to provide
the magistrate judge, and hence us, with jurisdiction. Accompanying
our remand is the instruction that should the district court find
that the purported consent does not satisfy the voluntariness threshold
imposed by Congress in section 636(c), the judgment entered by the
magistrate judge is to be vacated. If not vacated, Anderson may
proceed with her appeal.
[Anderson
v. WoodCreek Venture Ltd., 351 F.3d 911 (9th Cir. 12/05/2003)]