In Burton v. Schamp, No. 18-1174 (3d Cir. Feb. 3, 2022), the Third Circuit—hearing two consolidated prisoner appeals—holds that the failure of unserved defendants to consent to a U.S. federal magistrate judge (magistrate) before the complaint is dismissed deprives the magistrate of subject-matter jurisdiction under 28 U.S.C. § 636(c)(1). The panel rejects defendants’ arguments in support of jurisdiction based on waiver, the Prison Litigation Reform Act (PLRA), consent by implication, and post-judgment consent.
The issue of consent is key, because a magistrate is an Article I (not Article III) judicial officer, so subject-matter jurisdiction vests under the Federal Magistrates Act only “upon consent of the parties.” 28 U.S.C. § 636(c)(1). Such consent is provided in writing and filed with the clerk of the court.
In both appeals, the plaintiff inmates filed civil rights actions against correctional officers and consented to proceeding before a magistrate. Before all the defendants were served and appeared, and before any defendants consented in writing to the magistrate, the magistrate in each case dismissed the complaints for failure to state a claim (and in one case where some defendants did appear, also summary judgment.)
The Third Circuit vacates the judgments. It holds that the magistrate in both cases lacked subject matter jurisdiction absent formal consent by all the defendants, including those who were unserved at the time.
The panel seriatim rejects each theory proffered by the defendants to mend the jurisdictional defect.
Waiver: Defendants argued that the plaintiffs failed to object to the jurisdictional defect in the district court. But “the magistrate judge could acquire jurisdiction to decide the case only by the consent of the parties” under Section 636(c)(1). That “jurisdictional requirement cannot be waived by the parties,” and if the “requirements of Section 636(c)(1) are not satisfied, the ‘magistrate judge [is deprived] of jurisdiction over the case’ and we are statutorily deprived of appellate jurisdiction over the magistrate judge’s orders . . . Without the parties’ consent, the magistrate judge, as an Article I judge, simply does not have jurisdiction to decide the matter.”
Plaintiff’s Consent: Defendants tried arguing that the plaintiff’s consent alone is sufficient for jurisdiction under Section 636(c)(1). Because PLRA-mandated screening of complaints occurs when the complaint is first filed, even before defendants have appeared, “defendants conclude that the consent of the prisoner alone will satisfy the requirements of Section 636(c)(1) in the prison litigation context.” Yet “[t]he plain language of the statute requires that the consent of multiple parties, as opposed to a single party, be acquired before a magistrate judge can conduct any or all proceedings.” Defendants’ interpretation that “parties” refers only to a plaintiff in prison litigation “cannot stand in the face of the Act’s unambiguous text.” A second proposed interpretation, “that ‘parties’ includes only those parties, who have been served with the complaint,” is likewise held to “lack support in the statutory text and precedent,” citing decisions from the Seventh and Ninth Circuits.
Implied Consent: The panel holds that implied consent, i.e., by the defendants continuing to litigate even in the absence of a formal written consent, is foreclosed by Roell v. Withrow, 538 U.S. 580 (2003), which recognizes implied consent only under narrow circumstances, i.e., where “the litigant or counsel was made aware of the need for consent and the right to refuse it, and still voluntarily appeared to try the case before the Magistrate Judge.” Here the panel notes that “Section 636(c)(2) requires that the Clerk of Court notify the parties of their right to refuse to proceed before a magistrate judge, but there is no indication in the record that the defendants ever received such a notice . . . . [T]he record here shows only that the defendants were aware of being sued . . . . [They] do not point to anything in the record showing that they were made aware of the need to consent and their right to refuse to do so.”
Post-judgment consent: Finally, in one appeal, a defendant filed a post-judgment consent, arguing that Section 636(c)(2) does not specify when consent needs to be granted. The panel holds that a valid consent must be lodged before judgment is entered. “The importance of the timing of consent is implicit in the fact that a non-Article III judicial officer does not have decision-making authority until the parties consent. Notwithstanding the valuable contributions that magistrate judges provide to the efficiency of the federal judiciary, allowing a magistrate judge to ‘assume the role of a district judge,’ as permitted by Section 636(c)(1), before obtaining the consent of the named parties (whether express or implied) creates constitutional problems for Section 636(c)(1): it would permit a non-Article III officer to independently exercise Article III powers (by entering a final order that is not reviewable by the district court) before he is given the authority to do so.”
The panel concludes that the lack of consent does not leave the magistrate empty-handed. “Where the consent requirement of Section 636(c)(1) is not met, the appropriate procedure under Section 636(b)(1)(C) is for the Magistrate Judge to issue a report and recommendation to the District Court, which is vested with the authority to dismiss the parties and enter final judgment in the matter.”