Roell v. Withrow, 538 U.S. 580, 20 (2003)

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

Thomas, J., dissenting

ever, inapplicable "when the alleged defect of authority operates also as a limitation on this Court's appellate jurisdiction. Ayrshire Collieries Corp. v. United States, 331 U. S. 132 (three-judge court); United States v. Emholt, 105 U. S. 414 (certificate of divided opinion)." Glidden, 370 U. S., at 535 (plurality opinion). Additionally, "when the statute claimed to restrict authority is not merely technical but embodies a strong policy concerning the proper administration of judicial business, this Court has treated the alleged defect as 'jurisdictional' and agreed to consider it on direct review even though not raised at the earliest practicable opportunity." Id., at 535-536. This is the case here— 636(c) "embodies a strong policy" of ensuring that litigants waive their rights to an Article III judge knowingly and voluntarily. The requirement of consent is not a mere "technicality." Sections 636(c)(1), 636(c)(2), and 636(c)(3) reference consent explicitly and require it as a precondition for the exercise of a magistrate judge's authority and of a court of appeals' review of the magistrate judge's judgment. The foregoing indicates the importance of consent as a touchstone of this statutory scheme. Thus, absence of consent is a jurisdictional defect and a court of appeals must raise such defects sua sponte.

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I would vacate the judgment below and remand the case with instructions to dismiss the appeal for lack of subject-matter jurisdiction. I respectfully dissent.

599

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