Roell v. Withrow, 538 U.S. 580, 7 (2003)

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586

ROELL v. WITHROW

Opinion of the Court

Section 636(c)(2) establishes the procedures for a 636(c)(1) referral. "If a magistrate judge is designated to exercise civil jurisdiction under [ 636(c)(1)], the clerk of court shall, at the time the action is filed, notify the parties of the availability of a magistrate judge to exercise such jurisdiction." 636(c)(2). Within the time required by local rule, "[t]he decision of the parties shall be communicated to the clerk of court." Ibid. Federal Rule of Civil Procedure 73(b) specifies that the parties' election of a magistrate judge shall be memorialized in "a joint form of consent or separate forms of consent setting forth such election," see Fed. Rules Civ. Proc. Form 34, and that neither the magistrate nor the district judge "shall . . . be informed of a party's response to the clerk's notification, unless all parties have consented to the referral of the matter to a magistrate judge." The procedure created by 28 U. S. C. 636(c)(2) and Rule 73(b) thus envisions advance, written consent communicated to the clerk, the point being to preserve the confidentiality of a party's choice, in the interest of protecting an objecting party against any possible prejudice at the magistrate judge's hands later on. See also 636(c)(2) ("Rules of court for the reference of civil matters to magistrate judges shall include procedures to protect the voluntariness of the parties' consent").

Here, of course, 636(c)(2) was honored in the breach, by a referral before Roell and Garibay gave their express consent, without any statement from them, written or oral, until after judgment. App. to Pet. for Cert. 19a. Nonetheless, Roell and Garibay "clearly implied their consent" by their decision to appear before the Magistrate Judge, without expressing any reservation, after being notified of their right to refuse and after being told that she intended to exercise case-dispositive authority. Ibid.3 The only question is whether

3 See Black's Law Dictionary 95 (7th ed. 1999) (" 'The term "appearance" . . . designate[s] the overt act by which [a party] submits himself to the court's jurisdiction . . . . An appearance may be expressly made by formal

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