Roell v. Withrow, 538 U.S. 580, 15 (2003)

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Thomas, J., dissenting

This reading is most consistent with the statutory scheme. Despite the majority's concession that 636(c)(2) and Federal Rule of Civil Procedure 73 "are by no means just advisory," ante, at 587, the majority fails to give them any weight. Section 636(c)(2) requires the clerk of the district court to notify the parties of the availability of a magistrate "at the time the action is filed," after which the "decision of the parties [whether to consent] shall be communicated to the clerk of court." The fact that the parties' decision must be communicated to the clerk soon after the filing of the action indicates that the consent envisioned by the statute must be given affirmatively and expressly. Indeed, a party would find it quite difficult to "communicat[e]" the necessary consent to the clerk of the court through actions undertaken "during litigation," ante, at 582 (emphasis added). The majority's view suggests that the clerk of the court must monitor the parties' behavior in the magistrate judge's courtroom and determine, at some point not specified by the majority, that the parties' actions have ripened into consent. That is not a reasonable interpretation. Accordingly, I would hold that appearance before a magistrate judge without objection cannot be deemed "consent" within the meaning of this statutory scheme.

Federal Rule of Civil Procedure 73 fortifies this reading. The Rule mirrors the provisions of 636(c)(2) for informing parties of their option to proceed before a magistrate judge and of their obligation to file a consent form if they chose to do so. Fed. Rule Civ. Proc. 73(b) ("When a magistrate judge has been designated to exercise civil trial jurisdiction, the clerk shall give written notice to the parties of their opportunity to consent," and if the parties agree, "they shall execute and file a joint form of consent or separate forms of consent . . ." (emphasis added)).

Read together, the foregoing provisions indicate that parties must expressly communicate their consent to the magistrate judge's exercise of jurisdiction over their case and must

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