Roell v. Withrow, 538 U.S. 580, 13 (2003)

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Thomas, J., dissenting

conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment." 28 U. S. C. 636(c)(1). The majority holds that no express consent need be given prior to the commencement of proceedings before the magistrate judge. Rather, consent can be implied "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." Ante, at 590. In my view, this interpretation of 636(c)(1) is contrary to its text, fails to respect the statutory scheme, and raises serious constitutional concerns. Furthermore, I believe that a lack of proper consent is a jurisdictional defect and, therefore, a court of appeals reviewing a judgment entered by a magistrate judge pursuant to 636(c) may inquire sua sponte into the consent's validity.



There are two prongs to the majority's holding: (1) parties can give their consent during the actual proceedings conducted by a magistrate judge, and (2) such consent need not be explicit, but rather may be inferred from the parties' conduct. Neither of these conclusions is correct.

As already noted, a magistrate judge may carry out certain functions of a district court only "[u]pon the consent of the parties." Congress' use of the word "upon" suggests that the necessary consent must precede the magistrate judge's exercise of his authority. "Upon" is defined as "immediately or very soon after." The Random House Dictionary of the English Language 1570 (1966). Thus, under the plain language of the statute, consent is a precondition to the magistrate judge's exercise of case-dispositive power; without it, a magistrate judge cannot preside over a trial or enter judgment. Pacemaker Diagnostic Clinic of Am., Inc. v. Instromedix, Inc., 725 F. 2d 537, 540 (CA9 1984) (en banc) (Kennedy, J.).

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