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Georgene M. Vairo is a professor of law and the William M. Rains Fellow at Loyola Law School, Los Angeles. Vairo is also on the board of editors of Moore’s Federal Practice, and writes the Moore’s chapters on removal and venue problems. The U.S. Supreme Court has weighed in on a few questions this term that bear on forum-selection questions, more or less broadly construed. This column focuses on Roell v. Withrow, 123 S. Ct. 1696, 2003 U.S. Lexis 3427 (2003), which involves trials before federal magistrate judges. Power of federal magistrate judges has grown First, we need to recall that over the last several decades, Congress has enacted statutes that have greatly enhanced the role and power of federal magistrate judges. They have become an important part of the federal judiciary, providing a great deal of relief to busy federal district court judges. Well known for handling discovery matters, it is less well known that magistrate judges are also empowered to try cases upon the consent of the parties. That possibility provides for a bit of forum selection: Should we stay with the federal district court judge who may put us on the backburner given a heavy criminal trial caseload? Or should we elect to put the case in the hands of a capable federal magistrate judge who can move us along and actually adjudicate the case if we cannot settle? Many litigators are unaware of, or fail to take seriously, the option of proceeding before magistrate judges, even though such judges are routinely well qualified, dedicated and hard working. The Federal Magistrate Act of 1979 authorizes magistrate judges to “conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated . . . by the district court” and when acting “[u]pon the consent of the parties.” 28 U.S.C. 636(c)(1) (1979). Section 636(c)(2) of the act creates the procedure for a § 636(c)(1) referral, requiring the clerk of the court “at the time the action is filed, [to] notify the parties of the availability of a magistrate judge to exercise such jurisdiction [under § 636(c)(1)].” § 636(c)(2). Section 73(b) of the Federal Rules of Civil Procedure requires that the parties memorialize the authority of a magistrate judge in a “joint form of consent or separate forms of consent setting forth such election.” Fed. R. Civ. P. 73(b). Section 636(c)(2) and rule 73(b) thus appear to envision advance, written consent communicated to the clerk of the court in order to confer “civil jurisdiction” to the magistrate judge under § 636(c)(1). The U.S. Supreme Court, in Roell, rejected this reading of the statute and the rule. In Roell, the plaintiff, Withrow, brought a § 1983 action against the state prison’s medical staff, alleging they deliberately disregarded his medical needs in violation of the Eighth Amendment. Withrow orally, and later in writing, apparently prior to the district court’s referral of the case to the magistrate judge, consented to the magistrate judge’s offer to hear the entire case. Defendant Reagan gave written consent. Rather than await the other two defendants’ execution of the consent forms, the district court referred the case to the magistrate judge for final disposition, with the “caveat that ‘all defendants [would] be given an opportunity to consent to the jurisdiction of the magistrate judge,’ and that the referral order would be vacated if any of the defendants did not consent.” Roell, 123 S. Ct. at 1699. Roell and Garibay, the other two defendants, simply answered without taking a position on the question of consent. But they voluntarily participated in all proceedings before the magistrate judge. The case proceeded to a jury verdict and the magistrate judge entered judgment for the defendants. Withrow appealed, and the 5th U.S. Circuit Court of Appeals sua sponte remanded the case to the district court on the issue of consent. It was then that the other two defendants filed letters of written consent stating that they had consented to all proceedings before the magistrate judge. The district court referred the case back to the same magistrate judge, who found that the two defendants “by their actions” had “clearly implied their consent to the jurisdiction of a magistrate.” Id. at 1700. Nonetheless, given the 5th Circuit’s precedent that “consent cannot be implied by the conduct of the parties,” the magistrate judge concluded that she lacked jurisdiction because of the two defendants’ failure to give written consent in advance of the proceedings before her. Id. The district court adopted the report, and the 5th Circuit affirmed. The Supreme Court reversed in a 5-4 decision. Justice David H. Souter, writing for the majority, concluded that Congress intended to allow implied consent based on a party’s litigation conduct. Looking to the statute, the court noted that the full-time magistrate judge’s authority comes from the “consent of the parties,” without qualification as to form, quoting § 636(c)(1). Similarly, it is “the consent of the parties [that] allows” the magistrate to enter a final, appealable judgment of the district court, quoting § 636(c)(3). The court contrasted these references to “consent of the parties” with that portion of § 636(c)(1) applicable to certain part-time magistrates that requires that the parties consent by “specific written request,” quoting § 636(c)(1). Relying on these “textual clues” while acknowledging that § 636(c)(2) and Fed. R. Civ. P. 73(b) are “by no means just advisory,” the court concludes that “a defect in the referral to a full-time magistrate judge under § 636(c)(2) does not eliminate that magistrate judge’s ‘civil jurisdiction’ under § 633(c)(1) so long as the parties have in fact voluntarily consented.” Roell, 123 S. Ct. at 1701-02. The court further considers the practical implications of the act, finding that Congress intended to allow implied consent. By giving case-dispositive authority to magistrate judges, Congress attempted to relieve district courts’ “mounting queue of civil cases” and to “improve access to the courts for all groups,” while still protecting litigants’ rights to an Article III judge. Id. at 1702, citing S. Rep. No. 96-74, at 4 (1979). According to the court, allowing implied consent to the magistrate judge’s authority, as shown by the party’s voluntary participation in the trial, best serves congressional intent. As in this case, the plaintiff received the protection of the statute. He freely chose adjudication by the magistrate judge orally and in writing following his notice of the right to an Article III district judge. The plaintiff should not get “a boon from the other sides’ failure” to complete a form, when the defendants also voluntarily participated in the entire proceeding and never objected when the magistrate made it clear that she believed the parties had consented. Id. at 1707. The court spoke of its concern that requiring strict compliance with a writing requirement would promote gamesmanship. A party who was displeased with the outcome of a case, such as Withrow, who said nothing during the trial with respect to his or her own or her adversary’s failure to file the written form, could then claim a right to vacate an adverse judgment. The court concluded that the insistence on a bright line was not worth this downside, and ruled that accepting implied consent “checks the risk of gamesmanship,” serves judicial efficiency and honors the Article III right to adjudication by a district court judge. Id. at 1703. If parties voluntarily participate in a trial before a magistrate judge, it can hardly be said that they did not intend to do so. Like personal jurisdiction, where appearance before the court waives the defense of no personal jurisdiction, when a party has notice of its right to an Article III judge and, rather than exercise that right, voluntarily shows up and participates in a trial before the magistrate judge, it should not be able to challenge an outcome when it seems beneficial to do so. Justice Thomas objects to a ‘short shrift’ The dissent, written by Justice Clarence Thomas, complains that the majority has given short shrift to both the text of the statute and to the dictates of Article III. Unquestionably in the Roell case, there was consent. However, the dissent argues that the statute itself requires a specific procedure for ensuring consent. Section 636(c)(2) speaks in terms of consenting to the district court clerk soon after the filing of the complaint. According to Thomas, the language of § 636(c)(2) thus “indicates that the consent envisioned by the statute must be given affirmatively and expressly. Indeed, a party would find it quite difficult to ‘communicate’ the necessary consent to the clerk of the court through actions undertaken during litigation.” Id. at 1705 (Thomas, C., dissenting) (emphasis in the original). Additionally, the Federal Rules of Civil Procedure adopted to implement § 636(c)(2) requires the parties to “execute and file a joint [or separate] form of consent.” Fed. R. Civ. P. 73(b). The dissent also complains that the majority’s acceptance of implied consent will result in secondary litigation. The majority did leave two questions open. First, because the court concluded that the two defendants had impliedly consented to the magistrate judge’s authority at the inception of the proceedings, it did not “address whether express postjudgment consent would be sufficient in a case where there was no prior consent, either express or implied.” Roell, 123 S. Ct. at 1704 n.8. Second, given its result, the majority also did not “decide whether the Court of Appeals was correct that lack of consent is a ‘jurisdictional defect’ that can be raised for the first time on appeal.” Id. The majority concedes that under its rule there will be some wasteful secondary litigation over whether there actually was implied consent. So why did the majority rule as it did? Thomas’ critique, joined by, of course, Justice Antonin Scalia, but also by justices John Paul Stevens and Anthony Kennedy, is quite solid. Yet it appears unseemly to permit the gamesmanship that the majority seeks to curb. Also, the majority’s approach is somewhat consistent with its earlier opinion in Caterpillar Inc. v. Lewis, 519 U.S. 61, 64, 1996 U.S. Lexis 7643 (1996), in which it held that if a jurisdictional defect is cured prior to the entry of judgment, the district court has jurisdiction to enter the judgment. Certainly, overworked federal district court judges will be pleased by the majority’s approach.

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