have two lawsuits advocating and it will we will go with fifteen minutes from miss best followed by fifteen minutes on this one followed by counsel for we mr sachs do you want to sarah bast who is a law student at the university of pennsylvania on the court has admitted miss bast as an eligible law student and so with the court's permission i'd like to turn it over to her to present the argument at this time  judge dismissed mr burton's complaint with the consent of only one party and therefore he exceeded his scope of statutory authority but don't really go on the statute to the constitution and the difference between a exercise article three judicial powers and certainly dismissing a case with prejudice would seem to be essential article three hour and have you even created a court that can consider such it is it's well if you have an article one performing that function and only one of the party says consented to the participation that article one judge entered article three proceeding i don't think you have jurisdiction to to make any of the steps and tell you have consent by all the parties whether they have filed their appearance or not to creating a court in which you are a full one judge can perform an article three for absolutely applied on this mutual consent requirement which makes it even more difficult to argue that the magistrate judge here in this case had any authority to dismiss the severance case i mean i mean can't i mean i mean the answer  goes like this i mean if if we want to be realistic ok we know that any party who gets an action dismissed against them is going to think that's great and dismissing him or her or you know something like that but but but in general you know that does it doesn't the answer go if we just inject a little bit of realism into how we read these rules that one cares because the winner isn't is going to say yeah i was prejudiced by not consenting and the loser already consented and so i'd be just just in the sense that maybe we would give you know realistic read to the rules it you know i'm having a hard time finding out why other than just pure formalism concerns separation of powers that is by and by the structure of the constitution so we do want to make sure that we are always thinking about the constitutional conflict patients of this decision so so so so so so let's just think about those in terms of what what the downstream remedy should be i mean do we just send this back to say ok there were huge problems here of of constitutional dimension the defendants did not consent so we're going to remit it now we want to see if they consent then they   yes or act so here whether or not this feels like a question of constitutional dimension certainly the question here is not you know the degree of harm to the individual against the here before the court today it's a broader question interpretation was constitutional import the question this was so so so so what's the remedy so so so so so let's just say that we put these these concerns grounded in realism to the sun and let's say that no this this is a time when statute that caught fire is constitutional concerns maps we put all that to the side well well what's the remedy yes because you know rights rights tend to tend to come with remedies it's so it's so what do we do do we send this down and say it has to be in front of a district court and we send this down and say both parties get to redo their consent your client gets to his consent now  and now kind of knowing what's behind the curtain he can give now give maybe more informed consent than most people ever get to do but he would have the ability to do that but like what are your thoughts on remedies yes so typically if you know when this may be a little more guidance is needed as is my colleague at ross says because without more guidance the magic judge may say ok now i want to hear from the defendants the defendant's consent the fans probably would consent and so so i guess my thought and again even if it seems like it doesn't have the greatest consequence in this individual case that you know this court has the independent obligation to assess this jurisdiction question here on what has the authority to do so has the authority to clarify what six th one actually does require so that it is clear in the future for all that against a no what form of consent is required before a magistrate judge me properly hear the case and it's appearing in the text of the  to deviate from the plain text the plain meaning it's hard to argue at all that there's any ambiguity here the text of the statute uses uses the word parties and not just at not just the fact that you know we could take at face value that congress meant that the plural parties that's required for the jurisdiction when we talk about the consent procedures we see that the plural is being used in every other context in just a short provision in six thousand and sixty we see the singular being used so we know that there cartilage that the definition of party is not a fixed label rather that it depends on the context in the context here if we are trying to create this loophole whereby you know lateral consent is sufficient for the screening procedure simply because the defendant has not been served  simply because the district court would like to issue a judgment prior to service that is creating a local that is going to completely undermine the consent requirement that is both embodied in the text in the plain meaning of the statute and that is required by the constitution but but but but again if it's a context specific inquiry there's really no you know the party who the judgment is adverse to has consented and so if we want to look at a context specific approach it strikes me that dismissal is favorable to the defendants so so so this is this is maybe a far fetched example but let's just push let's say there's an interim action where there's one party against a thing if there's two parties consent we have to find out what happens to this thing somehow in ram magistrate judges may have and also preclude the enron cases so in that context that we got you know we would not hold such a stringent definition of the parties but here we have plaintiffs who are humans and defendants who are people who could provide consent and they pennsylvania carrie school of law and she will address all remaining issues here are whether post judgment consent is effective and whether there is implied consent the answer is no to both questions and at the end of time permits i'll briefly turn to the marriage issue that the magistrate judge prematurely to the issue of post judgment can set this course should not recognize her structure and consent because it violates the plain meaning of the statute contradicts the very notion of consent and it will create perverse policy incentive and thirty six c it reads upon consent of parties magistrate judge may conduct proceedings upon clearly means immediately or very soon after is sick no say timing requirement in the statu s and as recognized by congress even if it were to look into the legislative history which this court does not need to look into because the texas clear congress had that has described the act a authorizing magistrate judge to act with consent from parties quote in advance and here the defendant had consented it's six months after the magistrate judge issued the summary judgment that's clearly not by congress and as a leader so what do you think about you know in the law you know every now and then people say these the these words of advice and all these other things and one of the words of advice i heard where i was a young lawyer is the only deadline that you can't go back in time and change is the thirty days to harlem notice of appeal they said everything else you can file a non pro tunc motion and make now is that i don't know if that was good advice or bad late and my opposition could you treat it now it was there and so depending on how much you want to scour district court documents your dockets you're going to see a lot of non protein motions because sometimes people just the reality of timing and we live with consent was on my desk i knew it was coming i actually forgot to sign it and you got busy here in case it is done some good work on these cases i'd now like to sign it and writing and the section six hundred and thirty six feet where it said there wasn't let's just push it even more that let's let's make my hypo a little harder let's say there wasn't oral consent but there was some notion of maybe i'd love it if you could maybe get started statutory requirement in six hundred and thirty six dollars each and in this kit instance and it would also exceed the constitutional protection because consent is really the only procedural protection litigation they could just wait until they see the outcome if they when they consent if they don't they don't consent or they bring the lack of consent to the court's attention so that and so that that's a very practical concern yes very functional concern and if have any of them their rights the party who didn't consent would have none of their rights change they would just have their rights kind of really legitimized yawner maybe from a practical standpoint for this instant case the part sure you hunger for implied consent a binding supreme court precedent rule we the withdrawal actually i does not permit a finding of implied consent in this case the supreme court explicitly stated that notification of the right to the one of the st things that you can find out about the st things that are sometimes parties who are suing or suit want to know is who the judges and almost any e c f docket of a district court in this nation will tell you after a georgia sun some districts that few days will tell you exactly who that is and so the notion that people didn't know that there was a magistrate judge on this or that that th and so it one level that's that's not entirely different than standing silent after a judge says i think there was consented it might be a little more direct but they knew that i believe they could have known that this case was assigned to a ma on the docket knowing who the judge is that is not that type of requirement and the supreme court was very careful when it decided that there could be implied that as not to disturb the statutory requirement of notice because again consent is the only procedural safeguard to this to avoid this constitutional problem so courts were very careful not to make the implied consent overly expansive and expansive  and supplied mr williams with the relevant documents including his medical records in addition because there was no need to delay him a summary judgment based on the fi sixty the court properly found there is no deliberate difference on the part of health care ministry or pearson because a number of reasons firstly that she was not personally involved in the final believe that the slate allergy to certain foods amounted to a serious medical need on the long on the issue of implied consent under the u s supreme court decision to roll  at that point both parties said not consent is right so constitutionally out that there had been a court constituted where he is in article one judge could make any decision well you are that that is incorrect in fact the number two identical to that role the only difference being enrolled there was apparently a specific notice given to the defendants in that case by the district court about the us for a long period of time and have frequent it counters and experience with the district courts he was knowledgeable of the fact that that was an option that they doesn't not get constitutionally he didn't have jurisdiction no he it was believed that he didn't jurisdiction and they act as  let me just pick up on that because because you keep he saying that the facts of this case are are similar to two that that supreme court case but i want to tease out and i'm going to read for  nd sentences of c one that i think that i think dramatically implicate your implied consent argument the st sentence and i'm going to read this it goes quote upon the consent of the parties a full time united states magistrate judge or a part time united states magistrate judge who serves as a full time judicial officer may conduct any or all proceedings in a jury or non civil jury matter and the ones who serve as full time judicial officer but then if we go to the nd sentence it says quote upon consent of the parties pursue went to their specific written request any other part time magistrate judge may exercise or such your stiction quote so before we can even get to whether there was implied consent we need to know what as i see it whether he sir quote is a part time magistrate judge who serves as a full time officer maybe then there's an implied consent argument available there's no implied consent argument available in the nd sentence which says its pers so in order to make an implied consent argument you have to make the missing st argument which is that he's a part time magistrate judge who serves as a full time traditional lots is there anything in the record that indicates that he's because i don't know the answer implied consent and that happens to be your clients and so the absence of that argument suggests to me that we can't get to the implied consent category because that would st require that this  confirms the position of the parties with respect to the authority of the measure to judge prior to get your judgment the issue to come up about whether or not they get sent slyly was valid or not or not because it was not signed by all the parties and there was not separate consent forms for each defendant the intention was  well let me just ask you to radical question you know one other area of law that really really really relates to consent is arbitration the whole theory is that parties get of contract their way out of courts and contract their way into arbitrators would we ever allow kind of post arbitration award consent to an arbitrator this positive it could be considered in the context of the of the actions or the interactions of the parties prior to answer you justin i see i see your time are there any further questions from the panel pennsylvania office of attorney general participating as i make a security i for the commonwealth of pennsylvania at the invitation of the court the more reasonable interpretation of section six hundred and thirty six dollars is that only the prisoner plaintiff need consent for a magistrate judge to screen the complaint to reach this interpretation the court need only use the default statutory construction will contain in section one title one of the u s code that words importing the plural include the singular using this default r litigation and this is creating jurisdiction for the court so how can you say that you can get consent by one party to jurisdiction without getting consent by the other part particularly when it is the problem to solve a party that kind of definition the name in the in the complaint yes that's one definition but it's not one that applies here because they haven't been served with the complaint  three when i read just just the st part of it quote upon entry of judgment in any case referred under paragraph one of this section which would be see what an aggrieved party peel directly to the appropriate quotes but it says in aggrieved party so let's just say it give you a hypothetical let's just say that there is a prisoner who files if verified complaint accompanied with  tiara and let's just say it's very savvy made with a lot of access to the law library before his filing and the able to do this but him or her to do this he does this and he succeeds he or she succeeds and gets a t r o against a prison or prison official or ernie and it can be entered before service that's it's a very unique creature but it can be entered before service what that would mean is that whoever that judgment was entered against would not be a party for purposes of six hundred and thirty six dollars c and because they were not a party they would not therefore be an aggrieved party and they would have no ability to appeal that adverse ruling that adverse entry of a tiara now maybe later after they got served then or maybe as long as they you know maybe things change but at least prisoner would secure would be an appealable and i think for your reading you have to say yes we take the good with the bad and we we own that to we just will take the risk that thought hard version of the hype they aren't served right here or there or unserved party which means that they are not a party under your definition and it order to have appellate rights you have to be apart so what happens that next year is my last for fourteen days upon renewal for another fourteen days so but but if you understand the rule so what would you have to do is if you want a reading of a statute you have to take the good with the bad in the statu and so if you want us to say that party does not mean and sort of parties that means that in the event that someone wins a t r o against an uncertain party entered by a magistrate judge themselves into a lawsuit at that point have they stated i think this gets into one of the points i was trying to make it might not not till they were served not not not until they were served if party doesn't mean answer i understand you and i think this gets into one of the points i wanted to make i mean i'm i prefer that we have to think of we have to keep in mind that this idea of screening post states the consent provision by sixteen years so these kind of situations where you have one party  wasn't in the mind of congress when when when the consent provision was st at it which is why it's so important here to consider congressional intent along with statute i know with all of the text of my statute i know my my friend on the other side wants to focus just on the text but from this court and the supreme court over and over again it's been emphasized that you have to consider the text the structure the context history and purpose and use our common sense when  on common sense that i get to press my hypos again what you are reading really leads us to a strange commonsense answer at least for that t r o context i understand your hon r and screening i mean it it is very easy for the magistrate judge to simply send his recommendation to the district judge which the district judge signs poor and there you have solved the problem in article one judge exercising article three judicial functions right yes that's an easy way but here mr mr burton decided that he wanted a exercised article three hours he doesn't know how to express that in those words but he wants he wants to have a decision made by the equivalent of an article three judge and tell you satisfied the requirements that the parties to the really gay should and the parties in this situation i think will be your name parties i haven't created an article three functioning court that tell you have the consent of the named parties if you want to get a decision prior to that and and that was his prerogative nobody to see understand what an article three judges no i don't know if you understand you know i mean he even said he's time to consent or he wants to get this he wants to get the case try the consent of the parties we're dealing here with constitutional requirements not with the efficient functioning of the court and i find it very difficult under the situation you have to say that we can ignore the expressed language of the statute which is intended to avoid the constitutional problem of article three of article one judges exercising suffered he hasn't been a grave ringback well well i mean at one level that that that depends on how you define the injury i mean wouldn't you think that a person who has a judgment against them issued by a court d lacking jurisdiction has been a great friend but that w but still really like a federal court to hear we would say oh no no no no that does not work and so if in this case it's not a mountain controversy that defines the bounds of federal court jurisdiction but consent of all parties consent of one party can't complete that anymore then then the parties willingness to forego the remaining twenty five dollars k that's in play i understand you're saying you're on it but i also they want you to add an exception into there that says any or all proceeding but not screening and again congress passed the consent provision sixteen years before the screening it's a case where i think it's at least  as to what parties means in this context and when you think when it's ambiguous you have to consider that congressional intent the intent here was to make the federal judiciary more efficient not less efficient by adding an extra layer of review so i know i'm over my so these concerns of gamesmanship on march arius and applicable in this context and of course this court raised this question not as whether or not mr barry consented to have his right fork on but whether or not the magistrate judge had the dictionary act point the default rule being that the plural and singular can sometimes they use interchangeably it is certainly true that that rule exists however the dictionary act is qualified by looking at the context here the cont mentioned the structure of the statute shows intentionality between the use of the plural and a senior and that analysis has also been applied at the supreme court in two thousand and seventeen we saw the supreme court using this exact argument looking to see where the patent act it was for the work component looking to see where the pluralist used looking to see whether so so you're right context matters right context matters well let's look to spin out a little more broadly in the rules of civil of coercive joinder of parties a person who is necessary but really you know the court's going to have to do a little more joining in so let's just say that there's a case that's going on consents defendant consents to a magistrate judge it's going on what's its way through discovery and the magistrate judge says oh yeah the last day to join parties is two weeks afterwards and so then the plaintiff or the defendant wants rry i want to be in front of measure judge does that mean or we in voluntarily joining another party it's necessary does that mean that when we read this act and in your opening you talk about how important word upon was and then had to mean kind of early on in the in time but the case is perfectly fine for six months eight months everyone discovery takes and from an article  perfectly fine and now a new party comes along and what this act requires and maybe what the constitutional powers porting to you is that the magistrate judge is authority has now absolutely statutorily constitutionally disappeared because that newly joined party doesn't want to that that kind of feels like a very strange notion of jurisdiction instant evaporation spontaneous and instant evaporat so let's just say the defendant says i want to name a rd party defend it or i want to name a you know a claim against somebody else when that when the defendant starts to get active in trying to bring in a to me deciding that and so if that party doesn't consent then that motion goes the district court maybe and that's additional court says yeah let that party in then the entire case goes to  district court and that feels like quite a twist that least if upon seems early on in the case you know i don't want to speak for counsel our mother my colleague miss one but in terms of what our upon internally on are simply before as an education the final decision that would be just my own take on this in terms of whether or not you know this is a twist perhaps narrowly involved in this case we do have it under but but but but but but the problem with this type of is that the court was properly constituted for a long time and then somehow through motion of a party it becomes improperly constituted in so d it was a certain amount of gamesmanship d because if a party doesn't like how things are going with a magistrate judge they consented to they can drum up a reason to bring in another party rightly or wrongly right but there's usually someone else you can sue oftentimes the plaintiff will not sue the individual wrongdoer but the employer because on a respond to a superior claim because suing that individual wrongdoer they might not have so called deep pockets and so that plate of could do that leave the individual wrongdoer out see how things go take a flyer on the matter judge and then say well i don't like how this is be pretty savvy to realize life is not going good for my employer it's probably not going good for me either i want out of his job so there is there are gamesmanship concerns at least with join adding both parties especially defendants ability to do that and it feels like once you get a partly constituted coup or one time we shouldn't just with that admiral consent be enough to properly constitute a court at all you know we know that the answer is no looking at the tax and of course the common law says that we focus a bit on the text because that is what is required a statutory interpretation when it's i and if you if you stop there we also have the structure the legislative history the canon of constitutional avoidance that all argue for the same position the common sense interpretation we're taking on if i could just make one last point your honor about to screening requirement about this argument that were right in the opposing counsel to file whether they are a part time magistrate judge serving as a full time judicial officer and even if judge pesto is a magistrate judge serving as a full time judicial officer there is still no implied consent that consent needs to be given at the beginning of the litigation and not to enable parties to playing games by consent after they receive a favorable ruling and the  ellard she was still a defendant mr williams to avoid those food if he had suffered and the st allergic reactions to the food and in fact the prison had used the allergy report to grant to mr williams medical die in the st place but unfortunately for mr williams defendant had not provided him with any medical records in the file showing his pts allergic reactions and because he had outstanding discovery requests that were not answered by defendant we asked this quite even assuming that the magistrate judge did have jurisdiction here which he did not to vacate the summary judgment order entered by the magistrate judge and reman willing to subject themselves to the questions of the panel i thank you for doing so we wish you well in the remainder of your schooling in the next and i add to that it warms my heart to see two young women so and it warms my heart to see so many able young women following in my footsteps