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    Rachel Rembert v. Kenneth S. Apfel, Commissioner of Social Security, 213 F.3d 1331, 11th Cir. (2000)

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    The Eleventh Circuit Court of Appeals lacks jurisdiction over an appeal from a magistrate judge's final order and judgment when the parties did not expressly consent to the magistrate judge's authority to enter final judgment. In this case, the district court clerk sent the parties a notice stating that they would be deemed to have consented to trial by the magistrate judge unless they requested reassignment within 30 days. Neither party requested reassignment. However, the Eleventh Circuit found that consent cannot be inferred from inaction and must be express, concluding it lacked jurisdiction over the appeal because the parties did not expressly consent to final disposition by the magistrate judge as required by statute.

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    Rachel Rembert v. Kenneth S. Apfel, Commissioner of Social Security, 213 F.3d 1331, 11th Cir. (2000)

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    The Eleventh Circuit Court of Appeals lacks jurisdiction over an appeal from a magistrate judge's final order and judgment when the parties did not expressly consent to the magistrate judge's authority to enter final judgment. In this case, the district court clerk sent the parties a notice stating that they would be deemed to have consented to trial by the magistrate judge unless they requested reassignment within 30 days. Neither party requested reassignment. However, the Eleventh Circuit found that consent cannot be inferred from inaction and must be express, concluding it lacked jurisdiction over the appeal because the parties did not expressly consent to final disposition by the magistrate judge as required by statute.

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    Filed: 2000-06-05 Precedential Status: Precedential Citations: 213 F.3d 1331 Docket: 98-7050

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    The Eleventh Circuit Court of Appeals lacks jurisdiction over an appeal from a magistrate judge's final order and judgment when the parties did not expressly consent to the magistrate judge's authority to enter final judgment. In this case, the district court clerk sent the parties a notice stating that they would be deemed to have consented to trial by the magistrate judge unless they requested reassignment within 30 days. Neither party requested reassignment. However, the Eleventh Circuit found that consent cannot be inferred from inaction and must be express, concluding it lacked jurisdiction over the appeal because the parties did not expressly consent to final disposition by the magistrate judge as required by statute.

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    17 views5 pages

    Rachel Rembert v. Kenneth S. Apfel, Commissioner of Social Security, 213 F.3d 1331, 11th Cir. (2000)

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    Scribd Government Docs
    The Eleventh Circuit Court of Appeals lacks jurisdiction over an appeal from a magistrate judge's final order and judgment when the parties did not expressly consent to the magistrate judge's authority to enter final judgment. In this case, the district court clerk sent the parties a notice stating that they would be deemed to have consented to trial by the magistrate judge unless they requested reassignment within 30 days. Neither party requested reassignment. However, the Eleventh Circuit found that consent cannot be inferred from inaction and must be express, concluding it lacked jurisdiction over the appeal because the parties did not expressly consent to final disposition by the magistrate judge as required by statute.

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    of 5

    213 F.3d 1331 (11th Cir.

    2000)

    Rachel REMBERT, Plaintiff-Appellant,


    v.
    Kenneth S. APFEL, Commissioner of Social Security,
    Defendant-Appellee.
    No. 98-7050.

    United States Court of Appeals,


    Eleventh Circuit.
    June 5, 2000.

    [Copyrighted Material Omitted]


    Appeal from the United States District Court for the Southern District of
    Alabama.(No. 97-00318-CV-2-M), Bert W. Milling, Jr., Magistrate Judge.
    Before EDMONDSON, DUBINA and WILSON, Circuit Judges.
    WILSON, Circuit Judge:

    This appeal raises a jurisdictional issue of first impression in this circuit:


    whether we have jurisdiction over an appeal from a magistrate judge's final
    order and judgment when the clerk of the district court invited the parties to
    consent, through inaction, to the magistrate judge's final disposition of their
    case. Because we find that the parties did not expressly consent to final
    disposition by a magistrate judge, we dismiss the appeal.
    BACKGROUND

    Rachel Rembert unsuccessfully applied for Supplemental Security Income


    benefits. She filed a complaint in the United States District Court for the
    Southern District of Alabama contesting the denial of benefits. After Rembert's
    case was filed, the district court clerk sent the parties a "Notice of Assignment
    to United States Magistrate Judge for Trial." This notice stated that unless the
    parties requested reassignment to a district judge by returning a form within
    thirty days, the parties were deemed to have consented to trial and disposition

    of the case by a magistrate judge:


    3

    This civil case has been randomly assigned to United States Magistrate Judge
    Bert W. Milling, Jr. for all purposes including trial....

    You have the right to have your case reassigned to a United States District
    Judge for trial and disposition. If you wish to have the case reassigned at
    random to a United States District Judge, you or your attorney must return the
    Request for Reassignment to a United States District Judge ... to the Clerk of
    Court ... within thirty (30) days after your first appearance. Unless a party
    requests reassignment timely, the parties will be deemed to have consented to
    the trial and disposition of this case by the assigned United States Magistrate
    Judge.

    (underlining as in original).

    Neither party sent in the form. The parties submitted various pleadings for the
    magistrate judge's consideration and agreed to waive oral argument. The
    magistrate judge entered a final judgment against Rembert and she appealed. In
    their briefs to this court, neither party disputed whether there was effective
    consent to final disposition by a magistrate judge.

    Because, as discussed below, the issue of consent affects this court's appellate
    jurisdiction, we sua sponte asked the parties to address whether they had
    consented to the magistrate's authority, making his order and judgment final
    and appealable. The Appellant responded that since neither party had requested
    reassignment to a district judge, "the Magistrate Judge was not barred from
    issuing a final Order in this case....Therefore, the Court of Appeals for the
    Eleventh Circuit rightly has jurisdiction over this proceeding."
    DISCUSSION

    As a federal court of limited jurisdiction, we must inquire into our subject


    matter jurisdiction sua sponte even if the parties have not challenged it. See,
    e.g., University of S. Ala. v. American Tobacco Co., 168 F.3d 405, 410 (11th
    Cir.1999) (jurisdiction "cannot be waived or otherwise conferred upon the court
    by the parties"); Perez-Priego v. Alachua County Clerk of Court, 148 F.3d
    1272, 1273 n. 1 (11th Cir.1998) (sua sponte raising issue of jurisdiction over
    appeal from magistrate judge); In re Marriage of Nasca, 160 F.3d 578, 578 (9th
    Cir.1998) (same).

    Under 28 U.S.C. 636(c)(3), this court has jurisdiction over an appeal from a
    final judgment entered by a magistrate judge, but only if the parties consented
    to the magistrate's jurisdiction. See 28 U.S.C. 636(c)(3), which states that a
    party "may appeal directly to the appropriate United States court of appeals"
    from a magistrate judge's final judgment "in any case referred under paragraph
    (1) of this subsection." Paragraph (1) of 636(c) requires that for a magistrate
    to conduct proceedings and order entry of judgment, there must be "consent of
    the parties." 28 U.S.C. 636(c)(1). It follows that when magistrate judges act
    without the effective consent of the parties, this court has no appellate
    jurisdiction. See Barnett v. General Elec. Capital Corp., 147 F.3d 1321, 1322 n.
    1 (11th Cir.1998); Perez-Priego, 148 F.3d at 1273.

    10

    Because the Constitution gives Congress discretion to confer jurisdictional


    power on the federal courts of appeal, "federal courts should proceed with
    caution in construing constitutional and statutory provisions dealing with [their]
    jurisdiction." University of S. Ala., 168 F.3d at 409 (internal quotations
    omitted). Here, Congress has taken care to ensure that parties face final
    dispositions by magistrate judges only by the parties' free will. First, Congress
    provided that when an action is filed, "the clerk of the court shall ... notify the
    parties of the availability of a magistrate to exercise [ ] jurisdiction. The
    decision of the parties shall be communicated to the clerk of court." 28 U.S.C.
    636(c)(2). Second, "Rules of court for the reference of civil matters to
    magistrates shall include procedures to protect the voluntariness of the parties'
    consent." Id. Accordingly, the Federal Rules of Civil Procedure provide that if
    the parties agree to allow a magistrate judge to finally dispose of their case,
    "they shall execute and file a joint form of consent or separate forms of consent
    setting forth such election." Fed.R.Civ.P. 73(b).

    11

    The consent must be " 'express and on the record.' " Barnett, 147 F.3d at 1323
    (quoting General Trading Inc. v. Yale Materials Handling Corp., 119 F.3d
    1485, 1495 (11th Cir.1997)). It cannot be inferred by conduct of the parties.
    Hall v. Sharpe, 812 F.2d 644, 647 (11th Cir.1987). Failure to object is not equal
    to consent. Id.

    12

    Although this circuit has not construed a "consent through inaction" notice like
    the district court's, the Ninth Circuit ruled a notice containing identical
    language to be invalid. See Nasca, 160 F.3d at 579. The Nasca parties received
    a notice saying that "unless a party requests reassignment timely, the parties
    will be deemed to have consented to the trial and disposition of this case by the
    assigned United States Magistrate Judge." Id. The parties argued that consent
    was obtained through their failure to timely object. See id.

    13

    The Nasca court rejected the argument, noting: "Our insistence that consent be
    explicit, clear and unambiguous is not an exercise in mere formalism. But for
    the consent requirement, 636(c)'s grant of judicial power to magistrates would
    infringe on the constitutional rights guaranteed to litigants by Article III." Id.
    Because there was no express consent, there was no appellate jurisdiction. See
    id. at 580. We agree. The procedure used by the district court here, like that in
    Nasca, comported with neither the literal requirements of Rule 73(b), whereby
    the parties must show their consent by executing and filing a consent form, nor
    with the statutory requirement that the parties must express their consent
    through a communication to the district court. See 28 U.S.C. 636(c).
    Therefore we rule that consent to final disposition by a magistrate judge cannot
    be obtained through a procedure inviting consent through inaction.

    14

    With respect to the form and timing of the express consent required, we do not
    rule today. Although consent must be "express and on the record," it need not
    necessarily be written. See General Trading, 119 F.3d at 1495. In General
    Trading, the magistrate judge asked an attorney if his client would consent to
    trial before the magistrate; the attorney responded, " 'I don't think that we have
    any problem with that. I think that's fine.' " Id. This constituted express consent.
    See id. In addition, we deemed another party to have consented when its
    attorney signed a consent and stipulation to trial before the magistrate, even
    though the client's name was not listed in the document's preamble. See id. We
    found it important that at a status conference with all parties present, none of
    them objected when counsel for another party indicated on the record that all
    the parties consented to have the case completed before the magistrate judge.
    See id. Here, Rembert's counsel never indicated on the district court record
    anything about his client's consent, other than performing the routine tasks
    attendant to litigation. Mere acquiescence in proceedings does not constitute
    express consent. See Hall, 812 F.2d at 649.

    15

    Nor did Rembert's post-judgment actions constitute a retroactive consent to trial


    before the magistrate judge. At oral argument, Rembert's counsel said that
    Rembert's statements regarding appellate jurisdiction (including statements
    about the magistrate judge's powers) constituted nothing more than accurate
    representations of the procedure employed by the district court; indeed,
    Rembert's counsel specifically stated that he was not consenting on her behalf
    to a final disposition before a magistrate judge. Given those representations, we
    do not find express consent, and leave open the question of whether on appeal
    the parties can retroactively empower a magistrate judge to act.1

    16

    At any rate, Rembert did nothing, either before or after judgment, to indicate
    her express consent to final disposition of her case before a magistrate judge.

    Accordingly, we are in essence asked to review a nonfinal, nonappealable


    report and recommendation not yet adopted by the district court.2 We cannot
    pass on the merits of this appeal, but must dismiss it for lack of jurisdiction.
    CONCLUSION
    17

    Civil litigants cannot consent through mere inaction to final disposition of their
    cases before magistrate judges, even when invited to do so by standing orders
    of the district courts. Because Rembert did nothing affirmatively to indicate her
    express consent on the record, we do not have appellate jurisdiction.

    18

    DISMISSED.

    NOTES
    1

    Parties can consent even after judgment. See, e.g., General Trading, 119 F.3d at
    1496-97 (Parties added after the original consent consented to the magistrate's
    jurisdiction by accepting the judgment: "Clearly encompassed in this
    acceptance of judgment is an acknowledgment of the new transferees' consent
    to the authority and jurisdiction of the magistrate judge."); see also King v.
    Ionization Int'l, Inc., 825 F.2d 1180, 1185 (7th Cir.1987) (ruling that 636(c)
    "does not require a specific form or time of consent"). Cf. Perez-Priego, 148
    F.3d at 1273 (dismissing appeal when parties appealed from magistrate's report
    and recommendation that the district court had not yet adopted when the notice
    of appeal was filed).

    Cf. Perez-Priego, 148 F.3d at 1273 (ruling that "the report and recommendation
    is not final and appealable" and appeal could not be perfected).

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