In the

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 21-1491 

LUIS H. JAQUEZ, 

Plaintiff-Appellant, 

v.

UNITED STATES OF AMERICA, 

Defendant-Appellee. 

____________________ 

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 3:16-MJ-50-MGG — Michael G. Gotsch, Sr., Magistrate Judge. 

____________________ 

ARGUED MAY 16, 2022 — DECIDED JUNE 6, 2022 

____________________ 

Before EASTERBROOK, BRENNAN, and ST.EVE, Circuit Judges. 

EASTERBROOK, Circuit Judge. During 2016 federal officials 

obtained three judicial orders to facilitate investigation of Luis 

Jaquez, suspected of distributing illegal drugs. One order authorized a wiretap on Jaquez’s cell phone; the other two authorized a pen register. The wiretap gave federal officials access to conversations over the intercepted line; the pen register revealed only the numbers that Jaquez called or that called 

him. Federal officials disclosed some of this information to 
2 No. 21-1491 

state officials, who used it to prosecute and convict Jaquez for 

several offenses. He is serving a 36-year sentence. See Jaquez 

v. State, 2020 Ind. App. Unpub. LEXIS 34 (Jan. 17, 2020). He has 

not been prosecuted in federal court. 

Seeking evidence that he might use to wage a collateral attack on his convictions, Jaquez filed in federal court a motion 

for copies of the applications, affidavits, and orders authorizing the pen register, plus equivalent documents for the wiretap. He asked the district court to “Unseal and Produce the 

Entire Case.” The clerk of court referred this request to Magistrate Judge Gotsch, who issued the pen-register orders but 

not the wiretap warrant. Magistrate Judge Gotsch ordered 

some of the pen-register papers unsealed—apparently for 

Jaquez’s eyes only—but denied the request to the extent that 

it sought additional information. Jaquez did not ask a district 

judge to review the magistrate judge’s decision but did file a 

notice of appeal to this court, after waiting almost 60 days. 

The parties disagree about whether we have jurisdiction 

to review this decision. Jaquez, now represented by counsel, 

says that the answer is no because the decision is not final for 

the purpose of 28 U.S.C. §1291, having been entered by a magistrate judge without review by a district judge. The United 

States contends that the answer is yes precisely because the 

time to seek review by a district judge expired long ago. The 

parties also have had some back-and-forth about whether 

Jaquez had to appeal within 14 days, the maximum allowed 

in criminal litigation. Jaquez has declined to dismiss his appeal under Fed. R. App. P. 42(b), because the parties have not 

agreed on costs—and, perhaps more important, because he 

wants us to direct the district court to reopen the time within 

which to seek a district judge’s review of the magistrate 
No. 21-1491 3 

judge’s decision. We therefore reject the proposal by the 

United States to treat Jaquez’s brief as if it were a motion to 

dismiss. We need to decide on our own whether the appeal is 

properly here. 

The first question is whether the appeal is timely, which 

depends in part on why the district court had subject-maher 

jurisdiction. If the motion for disclosure is a step in a criminal 

prosecution, perhaps resting on Fed. R. Crim. P. 16 or something similar, then 18 U.S.C. §3231 would have supplied jurisdiction to the district court—and Fed. R. App. P. 4(b)(1)(A) 

would have set a 14-day limit for appeal. But because Jaquez 

has not been prosecuted under federal criminal law, §3231 

cannot furnish jurisdiction, and the 14-day limit for appeals 

in criminal cases does not govern. Jurisdiction must come 

from 28 U.S.C. §1331 (federal question) or §1346(b) (civil suits 

in which the United States is a defendant). The time limit for 

appeal thus is 60 days. Fed. R. App. P. 4(a)(1)(B)(i). Jaquez’s 

appeal was filed within 60 days of Magistrate Judge Gotsch’s 

order—but if that order is not a final decision of the district 

court, a vital condition for appeal under §1291 is missing. 

Section 636 of Title 28 permits district courts to assign 

many procedural mahers to magistrate judges. The reference 

here, if proper at all, rests on §636(b)(3), which permits the 

assignment of “such additional duties as are not inconsistent 

with the Constitution and laws of the United States.” See 

Gomez v. United States, 490 U.S. 858 (1989) (discussing mahers 

assignable under §636(b)(3)). Other subsections do not fit. The 

various subsections of §636(a) are irrelevant (for example, this 

is not the trial of a pehy offense). Section 636(b)(1) covers assignments of pretrial mahers, and Jaquez’s request is not preliminary to a trial. Nor is it a poshrial maher within the scope 
4 No. 21-1491 

of §636(b)(2). The reference covers the whole suit, which 

sought the disclosure of information that had been gathered 

years earlier. 

Reliance on §636(b)(3) creates an immediate snag, because 

it is not clear that the Northern District of Indiana has adopted 

a rule permihing the reference to magistrate judges of mahers 

related to wiretaps. The clerk who sent Jaquez’s request to 

Magistrate Judge Gotsch may have assumed that only the 

pen-register papers were at issue. Magistrate Judge Gotsch 

did not order disclosure of any wiretap information, but neither did he discuss his authority (if any) to rule at all on such 

a request. 

Whether or not a magistrate judge can hear requests to unseal documents related to wiretaps, the norm for all mahers 

referred to a magistrate judge under §636(b) is that a district 

judge must give the subject independent consideration before 

the decision becomes final. See, e.g., United States v. Radda@, 

447 U.S. 667 (1980); Mathews v. Weber, 423 U.S. 261 (1976). 

There are exceptions for pretrial discovery (which this is not) 

and situations in which the litigants have consented to the entry of final decision by a magistrate judge. 28 U.S.C. §636(c)(3). 

If all parties have so consented, then an appeal may be taken 

from a magistrate judge to the court of appeals; otherwise a 

final decision by a district judge is essential. See also Fed. R. 

Civ. P. 73(a). 

Section 636(c)(3) does not authorize this appeal, for two 

reasons. First, it applies only when the district court as an institution has decided that a particular variety of case may be 

resolved by magistrate judges. 28 U.S.C. §636(c)(1). As we’ve 

mentioned, the Northern District of Indiana has not made 

such a decision for wiretap-related mahers. Second, neither 
No. 21-1491 5 

Jaquez nor the United States consented under §636(c)(3) to the 

entry of final decision by a magistrate judge. It follows that 

Magistrate Judge Gotsch’s decision is not appealable to the 

Seventh Circuit. 

Not so fast!, the United States responds. True, there was 

not a proper reference under §636(c)(1). True, the parties did 

not consent under §636(c)(3). But still, the United States insists, this proceeding is over in the district court, so the decision must be “final” and appealable under §1291. 

If that were so, then §636(c) would be effectively obliterated. Anyone dissatisfied by a magistrate judge’s decision 

could appeal to the court of appeals simply by waiting until it 

was too late to ask the district judge for review, then filing an 

appeal. That can’t work. The direct-appeal procedure requires 

consent by the district court (§636(c)(1)) and by all parties 

(§636(c)(3)), not just by one party who wants to bypass a district judge. We have dismissed appeals when even a single litigant has failed to consent. See, e.g., Coleman v. Labor and Industry Review Commission, 860 F.3d 461 (7th Cir. 2017); Mark I, 

Inc. v. Gruber, 38 F.3d 369 (7th Cir. 1994). See also Roell v. 

Withrow, 538 U.S. 580 (2003) (discussing the requirements for 

a direct appeal from a magistrate judge’s decision). If the position the United States takes in this case is right, then all of 

those decisions must be wrong. 

The United States relies exclusively on United States v. 

Meux, 597 F.3d 835 (7th Cir. 2010). Meux deals with 28 U.S.C. 

§3008, part of the Federal Debt Collection Procedures Act. 

Section 3008 reads: “A district court of the United States may 

assign its duties in proceedings under this chapter to a United 

States magistrate judge to the extent not inconsistent with the 

Constitution and laws of the United States.” Meux holds that 
6 No. 21-1491 

a magistrate judge’s final decision under this section is appealable under §1291 because the district court’s whole power 

has been delegated. The parties need not consent, and a district judge will never review the magistrate judge’s decision. 

We recognize that §3008 and §636 have some language in 

common, but their structure is fundamentally different. The 

norm under §636, as Radda@ and Weber explain, is review by 

a district judge—and skipping past the district judge in favor 

of appellate review requires compliance with §636(c). We 

could not treat §636 as if it were a clone of §3008 without tossing out the many distinctive features of §636. 

Jaquez’s appeal must be dismissed because the order was 

not entered by a district judge, and neither the district court 

nor the parties used the direct-appeal procedure allowed by 

§636(c). Because we lack appellate jurisdiction, we also lack 

authority to remand this proceeding to the district court or 

direct it to proceed in any particular way. All we can do, and 

all we do do, is dismiss this appeal for lack of jurisdiction. 

The appeal is dismissed.