addressed to the warden and retaliation officers threatened him frequently transferred him between facilities failed to intervene when he was brutally assaulted by fellow inmates and sabotaged his possessions fifteen years later mr branch is still seeking relief  branch's case illustrates two types of challenges that pro se would against face even the most egregious prisoner civil rights cases like the two the panel here today where prisoners were brutally beaten to prison guards either watched or participated counsel before before we get into those dealing with misdemeanors and stuff like that in the civil case the statute allows a magistrate judge to handle the entire trial but it's expressly conditioned on the consent of the parties if i understand the record correctly your client consented and i think it was two thousand and seven nothing from the other party at all in terms of consent until two thousand and fifteen i don't know how they just i mean the  of findings and recommendations to the to the district judge during that time they didn't decide anything on their correct ok so that's the answer is that it just hadn't gotten far enough to require the consent of the curre district judge to see what he would have decided you're on of that's what the th circuit did and i will but we're arguing that would be insufficient for two reasons st these motions are very rarely granted and if you combine that with either the status quo you can grant the motion and then have to go through the trial again or you can simply deny the motion and then you know i think district judges follow the law no you know i think they do all the time but there is the appearance that's good  when was the motion to withdraw are made in who needed that with the consent mr branch made it and it would have been about three and a half months after he received notification  honor it appears the primary event was the fact that the magistrate judge adjudicated his motion for reconsideration by the district judge and as mr branch argued that motion should have been  adjudicated by the district judge in the magistrate judge lacked jurisdiction to decide it which would be an issue we could i'm what is the motion again i was a little confused about that so it's called a motion for reconsideration by the district judge and what it remembered that they had submitted suspect officer chronology reports back right after the incident in two thousand and four because they were untimely produced in this case they were they were produced i believe attached to a summary judgment motion and so mr branch wanted to distill testimony on why it took them so long to produce those particular documents and that the magistrate judge denied that yes the magistrate judge found that because neither party had submitted the discovery request  response as he was unable to reach the merits of the motion but even defendants you know concede that that that finding was erroneous because defendants had actually in fact submitted both the requests and the responses and their opposition so mr branch wanted to wanted to find it on the merits for for his motion to compel the further to my calling judge raycroft question let let's assume for a moment that we agree that the statute requires that the district judge make this determination and say that is strict judge send it right back to the same judge had the soldier's diction to decide that correct yes ok so say you're right we sent it back in the district judge said you know and i'm citing that i discriminate right back the same magistrate judge one of what's been accomplished we argue there would be no relief for us in that situation it's kind of a we're going to prayer maybe get a different judge magistrate judge in other words if if this if the district judge agrees with  you you're hoping you're going to get an assignment to a different magistrate judge oh i see your honor if the district judge agrees with us on remand assuming he's he's asked to review the motion in the st entrance withdraw consent and he agrees with us and before so he his motion to get more information about the delay was denied and so he wanted to do what he wanted to take that to the district judge yes yes to appeal it to the district judge and that requires approval by the magistrate is that or why that no it and i will then what i as a as a matter of right he can appeal that pretrial matter to the to the district judge what for reconsideration it wasn't the special procedure to reconsider it by the by the district judge and ok but in any event he wanted that reconsidered and that was denied correct  magistrate judge had exceeded its jurisdiction to decide his motion but also that there were at this point four or five magistrate judges assigned to the case they didn't liberally construe his complaints there was there was no they didn't like the magistrate judge as well to some extent but there were other issues as well these weren't simple run of the mill disagreement your honor but in terms of his motion to withdraw consent it's unclear if he is unable to withdraw his consent in this particular defendants haven't explained how mr branch could receive district judge adjudication of his motion rule seventy three clearly contemplate some procedure for parties to be able to submit in extraordinary circumstances motion for district judge  federal rules would actually abrogate the statute in this situation and in addition defendant's reading of the statute raises potentially constitutional concerns namely the impermissible delegation of article three authority to other branches of government and specifically define its interpretation could lead to an as applied challenge to the to the constitutionality of the federal magistrate act so it's really this issue i asked that the panel find that structural error occurred and litigant and there are lots of them in the eastern district if they are unhappy with the rulings that they can that they that they can move to withdraw their motion and every time they their consent and every time they do that everything has to stop and it has to go to the district court to decide there's two parts that are on earth i am saying yes every time that motion is filed it does have to go to the the district judge park to i'm not saying every pro se prisoner motion to decide and then back assuming that they're going to be denied because it's all there's no merit to a motion to withdraw consent just because you're unhappy with the bulling it's right it will take time but it also takes time for the magistra they claim that the fellow engaged in retaliation if that was wrongly dismiss then regardless of how we come out on the  who should have decided the motion to withdraw the consent there still will be further things that need to be tried yes yes your honor there will still be further proceedings but it's our position it doesn't necessarily move the issue  because this court will not go i understand i just want to make sure that i that we don't lose track of the fact that there are other issues that are implicated even if we disagree with you on the on the consent in order of referral and the only way that mr branch could even implicate a defect a magistrate judge judge jurisdiction was to establish extraordinary circumstances a standard that he plainly did not meet based solely on his we don't need to be talking about consent on time to get into consent is when you're talking about something that's not expressly allowed by the magistrate statute so in this case is it your position that what was done here occurred when there was no consent required or if that's not the case during what during that period and there was no consent from the other side how can there be any right on the judges part to decide an issue when he has no interest in action so for everything that happened up until the point at which there was mutual consent so mr branch he consented at the very beginning right a case but nobody else did  because at the time in which the magistrate at the time when he had moved to withdraw his consent magistrate judge jurisdiction had already been perfected mr branch had waived his right on in that case to an article three men were the case law that says that when only one party has consented jurisdiction that you waive your right at the other side never consents how can it's almost like a contract and then i've got two parties they regard consent he gives his consent because i didn't say anything there's no contract there's no agreement i know it's that type of a contract but the reality is there's no agreement so you just left with the statute so let the statute confer jurisdiction how can you in effect this stop the person who gave the consent unless and until such time as the other side also consents because your honor there's no absolute right to withdraw consent after it's already been given but again you're not  just that one person and one of my my concern is is i know the statute allows the magic judge to do a lot of different things but i'm something you've got to have consent for both your position seems to me that when in this case the prisoner said you know i consent and the government saying for a long long time that somehow during that period he cannot withdraw his consent that is your position right that's correct and watch your case authority that says that the case in the closest analogy is in the united states versus neville which cites to a th circuit case carter versus sealand and in these cases the court says that what what the consent is is it is a waiver of a right and the court treats waivers of all types of different rights constitutional rights waivers to jury trial waiver to criminal procedural rights the same way at the very at a very waiver basically that in order to withdraw that consent he must at the at a minimum show good cause but that's only if there's a jurisdiction on the part of the magistrate judge wright no your honor i don't think that  for purposes of of the litigant requesting to withdraw consent that the magistrate judge doesn't have jurisdiction over that even even before consent is before you know that that all goes to section four and so which says the court may for a good cause shown on its motion for under extraordinary circumstances shown by any party th that the court means the district court because your honor the way that six hundred and thirty six e four is is structured it says the court and it says the court may vacate in the context of already magistrate judge jurisdiction having been perfected from six hundred and thirty six the one where there's mutual consent and then an order of referral and it says the magistrate judges have civil jurisdiction to conduct any and all further  mean that there has been mutual consent and what i've been talking about is there is at some point there was mutual consent but by that point this gentleman had withdrawn his consent i just again i look at this from a constitutional perspective you've got a magistrate judge that is not an article three officer the statute says certain ministerial type things like motions on can be handled unless both parties consent for hear the party the prisoner says i consent government has nothing all during that period from my perspective magistrate judge has jurisdiction to do what the statute says but when you get to something that the statute requires me to consent unless there is mutual consent he doesn't have jurisdiction and i don't know why he can't with the prisoner can't withdraw his consent to his constitutional right as the government has not chosen to join i missing i think there are two responses that your honor and st is that in your scenario mr branch is consent somehow no longer is valid at simply by the passage of time but nobody the failure of the other side to agree after it but he affirmatively he affirmatively consented well let's say that that would just around the government says we consent and he doesn't what he got then if that mean the government permanently agrees and it can somehow be bound but the other the other side the nav to great they tried something for imagine a judge in the prison had agreed you know that would be bad why isn't it true the other way around i think it would be true in either circumstance once a party a litigant has affirmatively waive that right then they are brown unless they can establish a justification to withdraw that has like point in this case to the to the other side dismissed for lack of jurisdiction and when the case came back he had that point then moved to withdraw his consent but my question was when did the when when did the other side give consent to the magistrate's stiction so after the in he did not move to withdraw until after yeah so so there that's why police i come back to the word to the statute the there had been consent by him which he had not withdrawn at the time that the other side consented and the district court then entered the order in november th team saying this case will be tried by the he cannot withdraw his consent which so the fundamental question is did the magistrate judge have jurisdiction to make that ruling at that tried to withdraw that there the other side had not consented so i now understand that there had been contents are we're just talking about the meaning of the statute alone here so i withdraw my question there because the facts are different than i understood them to be  court saying the court equals district judge then those previous references in the statute to a district judge also would be superfluous the statue wouldn't need to say district judge you could simply say the court in every instance so not prefer and therefore when this subsection speaks of the court having the power to withdraw or vacate a reference why isn't that more or less self evident the address to something that is uniquely in the power of the district court but i think your honor the because there are different circumstances and i think that pacemaker decision spoke to that where the court said the reason the statu constitutional is because it permits the district court to resume jurisdiction over a specific case suicide on say if there is some good cause and these are the considerations that were are separate from when a party is asking for relief so you  not a plating this is where i think it's very important you are not equating the b the motion to withdraw consent as statute and the rule both very clear that what a litigant must show is extraordinary circumstances and i think this goes also to the point that the remedy that mr branch is asking for even if the statute makes the statue work to say that only a district judge or the rule only district judge could rule on such a motion that the remedy is not overturning the judgment and granting a new trial at most the remedy would be to simply send that that the judge had wrongly dismissed want to more claims so now it comes and then we remained on the issue you're just talking about so now the district judge  you're into his determination of how to address the issue of whether there had been a wrongful consent or not right so there is no reason this is really responsive to the point your adversary made about some kind of bias by the district court the district court had has many things to consider if it's remained to the district court many factors to consider and could well decide that it makes more sense to to try the case before him the court could say no and when the fact that there are wholly new claims involving an extraordinary circumstance no your honor i don't think that would be an extraordinary circumstance because i think that many courts have found this to be true where simply an adverse ruling even if even if the  true even if the court did make a mistake that is not an extraordinary circumstance in fact is probably one of the most ordinary circumstances litigants are dissatisfied with the ruling even if in fact there was an error that's not extraordinary and that wouldn't error that's not in any extraordinary circumstance or going to be a very different trial it's going to have new claims you don't think that's an extraordinary circumstance i think that is that is a natural part of the litigation process if there is an here your honour's a rebuttal to brief points st defendant still have not explained how mr branch could have sought district judge judy cation of his motion to withdraw consent his motion did specifically specify that pursuant to rule seventy three b he was seeking district judge adjud of extraordinary circumstances it's not clear when any other when anybody get would be able to withdraw their consent by using language extraordinary circumstances presumably congress in vision some set of circumstances out there where what against would be able to revoke their consent and at least in the process a prisoner context we believe in mr branch can't revoke his consent in this situation where there's a an important jurisdictional issue dealing with this pretrial appeal to the district judge it's unclear whenever they would be able to revoke consent you know you can we one reach that issue if we decided to remain and that would be an issue for the district judge right if you know if it was a matter for the district judge to consider