Roell v. Withrow, 538 U.S. 580, 18 (2003)

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Cite as: 538 U. S. 580 (2003)

Thomas, J., dissenting

litigants' rights under Article III are either protected or they are not. As the majority suggests, its reading does not safeguard these rights. Indeed, the only protection offered by the majority is its hope that the "procedural requirements of 636(c)(2) and Federal Rule of Civil Procedure 73(b)" will be complied with. Ante, at 591, n. 7. The majority offers no credible solution for circumstances, such as the ones here, where these rules were not followed.

Even apart from the plain text of the statute and the canon of constitutional avoidance, concerns about fairness—to which the majority alludes above, see ante, at 588-590— weigh in favor of express consent. According to the majority, the respondent is a "possibly opportunistic litigant," who "deserves no boon from the other side's failure to cross the bright line," ante, at 590. The record, however, provides no evidence that respondent, proceeding pro se below, manipulated the system. Moreover, "the other side" is the State of Texas, a repeat player, represented by its own counsel, and no doubt familiar with the rules of the local federal courts. Finally, it was not respondent who raised the issue of consent, but the Court of Appeals, which considered the question sua sponte.

II

Because the parties here did not expressly consent to the proceeding before the Magistrate Judge, I next consider whether the lack of such consent destroys jurisdiction of a court of appeals reviewing a magistrate judge's judgment. I believe it does, and thus, a court of appeals may—and indeed must—raise it sua sponte.

A court of appeals exercises jurisdiction over a magistrate judge's final order pursuant to 636(c)(3), which provides:

"Upon entry of judgment in any case referred under paragraph (1) of this subsection, an aggrieved party may appeal directly to the appropriate United States court of appeals from the judgment of the magistrate judge in

597

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