FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT ITO FARM, INC.; HAWAII

FARM BUREAU FEDERATION, MAUI

COUNTY, “Maui Farm Bureau”;

MOLOKAI CHAMBER OF COMMERCE;

AGRIGENETICS, INC., DBA Mycogen

Seeds; MONSANTO COMPANY;

CONCERNED CITIZENS OF MOLOKAI

AND MAUI; FRIENDLY ISLE AUTO

PARTS & SUPPLIES, INC.; NEW

HORIZON ENTERPRISES, INC., DBA

Makoa Trucking and Services;

HIKIOLA COOPERATIVE,

Plaintiffs-Appellees,

v.

COUNTY OF MAUI,

Defendant,

ALIKA ATAY; LORRIN PANG; MARK

SHEEHAN; BONNIE MARSH; LEI’OHU

RYDER; SHAKA MOVEMENT,

Intervenor-Defendants,

v.

No. 15-15246

D.C. No.

1:14-cv-00511-

SOM-BMK

OPINION
2 ROBERT ITO FARM V. MOMS ON A MISSION HUI

THE MOMS ON A MISSION (MOM)

HUI; MOLOKAI MAHIAI; GERRY

ROSS; CENTER FOR FOOD SAFETY,

Proposed Intervenor-Defendants,

Movants-Appellants.

Appeal from the United States District Court

for the District of Hawaii

Susan Oki Mollway, Chief Judge, Presiding

Argued and Submitted June 15, 2016

Honolulu, Hawaii

Filed November 18, 2016

Before: Sidney R. Thomas, Chief Judge, and Consuelo M.

Callahan and Mary H. Murguia, Circuit Judges.

Opinion by Judge Murguia
ROBERT ITO FARM V. MOMS ON A MISSION HUI 3

SUMMARY*

Civil Procedure

The panel affirmed the district court’s determination that

it lacked jurisdiction over an appeal from a magistrate judge’s

order denying intervention. 

The panel held that prospective intervenors are not

“parties” for purposes of 28 U.S.C. § 636(c)(1), and a

magistrate judge who has the consent of the named parties to

the suit may rule on a prospective intervenor’s motion to

intervene without the prospective intervenor’s consent. The

panel held that in this case, because the magistrate judge had

the consent of the parties and did not need the consent of the

proposed intervenor, the magistrate judge had jurisdiction to

rule on the motion to intervene and the magistrate judge’s

order denying intervention became immediately appealable

to the Ninth Circuit, not to the district court. 

COUNSEL

Summer Kupau-Odo (argued), and Paul H. Achitoff,

Earthjustice, Honolulu, Hawaii; Sylvia Shih-Yau Wu and

George A. Kimbrell, Center for Food Safety, San Francisco,

California; for Movants-Appellants.

Richard P. Bress (argued), Angela Walker, Andrew D. Prins,

and Philip J. Perry, Latham & Watkins LLP, Washington,

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
4 ROBERT ITO FARM V. MOMS ON A MISSION HUI

D.C.; Nickolas A. Kacprowski and Paul D. Alston, Alston

Hunt Floyd & Ing, Honolulu, Hawaii; Christopher Landau,

Kirkland & Ellis LLP, Washington, D.C.; Margery S.

Bronster and Rex Y. Fujichaku, Bronster Fujichaku Robbins,

Honolulu, Hawaii; for Plaintiffs-Appellees.

OPINION

MURGUIA, Circuit Judge:

A magistrate judge may exercise jurisdiction over a civil

action “[u]pon the consent of the parties.” 28 U.S.C.

§ 636(c)(1). This case requires us to decide whether the

consent of a prospective intervenor—that is, one who wants

to intervene but has not yet been allowed to do so—is

necessary for a magistrate judge to rule on a motion to

intervene. We hold that prospective intervenors are not

“parties” for purposes of § 636(c)(1), and a magistrate judge

who has the consent of the named parties to the suit may rule

on a prospective intervenor’s motion to intervene without the

prospective intervenor’s consent.

I.

In November 2014, the voters of the County of Maui

(“the County”) approved a county ordinance (“the

Ordinance”) via ballot initiative prohibiting the growth,

testing, and cultivation of genetically engineered crops until

the County conducted an environmental and health impact

study. A group of industrial agriculture plaintiffs (Appellees

in this appeal) sued the County in federal court to enjoin and

invalidate the Ordinance. The parties consented to have the

case proceed before a magistrate judge.
ROBERT ITO FARM V. MOMS ON A MISSION HUI 5

Two public-interest citizens’ groups, Shaka and MOM

Hui, filed motions to intervene on the same day. In a single

order, the magistrate judge granted Shaka’s motion to

intervene but denied MOM Hui’s. The magistrate judge

found that the motions to intervene were timely, that both

movants had significantly protectable interests, that the

invalidation of the Ordinance would impair those interests,

and that the County would not adequately represent their

interests because the County had opposed the ordinance and

its interests were broader than those of Shaka or MOM Hui.1

The magistrate judge then allowed the Shaka movants to

intervene based on the group’s role in the initiative that

enacted the Ordinance. In the same order, the magistrate

judge denied MOM Hui’s motion to intervene, finding that

Shaka would adequately represent MOM Hui’s interests. In

a separate order, the magistrate judge directed the clerk to

reassign the case to a district judge in light of the fact that

Shaka, which was now a party to the action, had not

consented to proceeding before the magistrate judge.

1 A party seeking to intervene as of right must meet four

requirements:

(1) the applicant must timely move to intervene; (2) the

applicant must have a significantly protectable interest

relating to the property or transaction that is the subject

of the action; (3) the applicant must be situated such

that the disposition of the action may impair or impede

the party’s ability to protect that interest; and (4) the

applicant’s interest must not be adequately represented

by existing parties.

Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003) (citing Fed. R.

Civ. P. 24(a)(2)).
6 ROBERT ITO FARM V. MOMS ON A MISSION HUI

MOM Hui “appealed” the magistrate judge’s denial of its

motion to intervene to the district court. After ordering

supplemental briefing on the issue of consent, the district

court held that the magistrate judge had jurisdiction to rule on

MOM Hui’s motion to intervene because the magistrate judge

was acting with the consent of the parties to the suit. The

district court further held that any appeal from the magistrate

judge’s order needed to be taken to the Ninth Circuit because

the magistrate judge, having obtained the consent of the

parties, had authority to enter a final decision under 28 U.S.C.

§ 636(c)(1). The district court therefore concluded that it

lacked jurisdiction to hear MOM Hui’s appeal.

MOM Hui timely appealed the district court’s

jurisdictional decision to this court. But MOM Hui does not

appeal from the order of the magistrate judge denying its

motion to intervene.

II.

The magistrate judge had the consent of the named parties

to the suit. The issue in this appeal is whether MOM Hui’s

consent as a prospective intervenor was necessary for the

magistrate judge to exercise jurisdiction over its motion to

intervene under 28 U.S.C. § 636(c)(1). We review this purely

legal question de novo. See United States v. Lang, 149 F.3d

1044, 1046 (9th Cir.), as amended, 157 F.3d 1161 (9th Cir.

1998).

If the magistrate judge had jurisdiction under § 636(c)(1),

the magistrate judge’s ruling would have the same effect as

if it had been made by a district judge. See Pacemaker

Diagnostic Clinic of Am., Inc. v. Instromedix, Inc., 725 F.2d

537, 540 (9th Cir. 1984) (en banc). As such, the magistrate
ROBERT ITO FARM V. MOMS ON A MISSION HUI 7

judge’s intervention order would have been immediately

appealable as a final decision. See Donnelly v. Glickman,

159 F.3d 405, 409 (9th Cir. 1998). An appeal of that order

would need to be taken to this court, not the district court. 

See 28 U.S.C. § 1291.2

III.

The Federal Magistrate Act of 1979 “authorizes

magistrates, when specially designated by the district court,

to exercise jurisdiction over civil matters and enter a final

judgment in the district court in civil cases, provided the

parties consent to the reference.” Pacemaker, 725 F.2d at

540. As relevant here, the Act states that:

Upon the consent of the parties, a full-time

United States magistrate judge . . . may

conduct any or all proceedings in a jury or

nonjury civil matter and order the entry of

judgment in the case, when specially

2 The fact that an order becomes immediately appealable does not,

absent the filing of a notice of appeal, necessarily divest the district court

of jurisdiction to entertain a motion for reconsideration. Cf. Mayweathers

v. Newland, 258 F.3d 930, 935 (9th Cir. 2001) (“When a notice of appeal

is filed, jurisdiction over matters being appealed normally transfers from

the district court to the appeals court”). Here, because the case was

transferred from the magistrate judge to the district court once Shaka

became a party, MOM Hui could have moved for the district court to

reconsider the magistrate judge’s intervention order, just as it could if the

ruling had been made by a different district judge. See Dreith v. Nu

Image, Inc., 648 F.3d 779, 787–88 (9th Cir. 2011). But MOM Hui did not

do so, and the district court did not abuse its discretion in declining to sua

sponte construe MOM Hui’s challenge of the magistrate judge’s order as

a motion for reconsideration. See In re Jones, 670 F.3d 265, 267 (D.C.

Cir. 2012).
8 ROBERT ITO FARM V. MOMS ON A MISSION HUI

designated to exercise such jurisdiction by the

district court or courts he serves.

28 U.S.C. § 636(c)(1).

Under § 636(c)(1), a magistrate judge acting with the

consent of the parties in a civil suit effectively presides as a

district judge over the action. But “[w]here the magistrate

judge has not received the full consent of the parties, he has

no authority to enter judgment in the case, and any purported

judgment is a nullity.” Kofoed v. Int’l Bhd. of Elec. Workers,

Local 48, 237 F.3d 1001, 1004 (9th Cir. 2001). Consent of

the parties is a predicate for magistrate judge jurisdiction

because, subject to some exceptions, a federal litigant has a

personal right to have his case heard by an Article III judge. 

Dixon v. Ylst, 990 F.2d 478, 479 (9th Cir. 1993). As a result,

“a magistrate judge may establish jurisdiction over an action

only if the parties have consented to it.” United States v. Real

Property, 135 F.3d 1312, 1315 (9th Cir. 1998). The clerk

must tell the parties in writing of their opportunity to consent,

and the consent must also be explicit and in writing. Id.; see

also Fed. R. Civ. P. 73(b); D. Haw. LR 73.2(a).

It is clear that the named parties to a federal suit must

consent for a magistrate judge to have jurisdiction over the

action. This case presents the novel question of whether a

prospective intervenor must also consent for the magistrate

judge to rule on the motion to intervene. The two circuit

courts of appeal to have considered this question are split on

the answer.

The Second Circuit has held that a magistrate judge lacks

jurisdiction to decide a motion to intervene without the

consent of the prospective intervenor. In New York Chinese
ROBERT ITO FARM V. MOMS ON A MISSION HUI 9

TV Programs, Inc. v. U.E. Enterprises, Inc., the Second

Circuit held that, without the consent of prospective

intervenors, a magistrate judge’s denial of their motion to

intervene had “the effect only of a report and

recommendation to the district judge, who upon the filing of

objections must review de novo the recommendation.” 

996 F.2d 21, 25 (2d Cir. 1993) (citing Fed. R. Civ. P. 72(b));

see also 28 U.S.C. § 636(b)(1)(B). The Second Circuit relied

on authority providing that “voluntary consent of all

parties—even those entering [the] case at [a] later

stage—may be required to invoke [the] jurisdictional

provisions of § 636(c).” 996 F.2d at 24 (citing 12 Charles A.

Wright & Arthur R. Miller, Federal Practice and Procedure

§ 3077.2-3 (Supp. 1987)). Because “the consent of each

party is essential to the validity of the statutory system that

allows a magistrate judge to make binding adjudications,” the

court concluded that, without the prospective intervenors’

express consent, the “magistrate judge was not authorized to

enter a final order denying intervention.” Id. at 24–25.

The Seventh Circuit reached the opposite result. In

People Who Care v. Rockford Board of Education, School

District No. 205, the court held that “the power to rule on

motions to intervene is a necessary and proper incident of the

magistrate judge’s power to decide the underlying case.” 

171 F.3d 1083, 1089 (7th Cir. 1999). The court found this

result to be consistent with § 636(c) because the statute

“requires only the consent of ‘parties’ to the magistrate

judge’s entering dispositive orders.” Id. And, as the court

determined, “an applicant for intervention is not a party—he

wants to become a party. He is a litigant, and if there were a

good reason to classify him as a party the language of the

statute would certainly bend far enough to allow this.” Id.

(citations omitted).
10 ROBERT ITO FARM V. MOMS ON A MISSION HUI

We agree with the Seventh Circuit that a prospective

intervenor is not a “party” as that term is used in § 636(c)(1). 

The Supreme Court has held that a prospective intervenor is

not a “party” as that term is used in federal law, and he does

not become a party until he actually intervenes in the suit. 

United States ex rel. Eisenstein v. City of New York, 556 U.S.

928, 933 (2009). “[W]hen the term to intervene is used in

reference to legal proceedings, it covers the right of one to

interpose in, or become a party to, a proceeding already

instituted.” Id. (quoting Rocca v. Thompson, 223 U.S. 317,

330 (1912)). Further, a prospective intervenor does not

become a party to the suit unless and until he is allowed to

intervene. If the actual parties to the suit have given consent,

the consent of prospective intervenors is not necessary for the

magistrate judge to exercise jurisdiction over the action. See

Real Property, 135 F.3d at 1317 (holding that a putative

claimant’s failure to become a party to an in rem action

“made it unnecessary to obtain his consent to the magistrate

judge’s jurisdiction”). While later-added parties must give

consent for a magistrate judge to exercise jurisdiction,

Jaliwala v. United States, 945 F.2d 221, 223–24 (7th Cir.

1991), prospective parties do not have the same right.

MOM Hui argues that “[n]othing in 28 U.S.C. § 636(c)

suggests that the term ‘parties’ is limited to existing parties to

a lawsuit” and that “[l]egally, the term ‘party’ encompasses

a wide range of meanings, including, primarily, ‘[o]ne who

takes part in a transaction,’ such as a party to a contract.”

(quoting Black’s Law Dictionary 1144 (7th ed. 1999)). But

that argument is foreclosed by Eisenstein’s holding that a

“party,” as that term is used in federal law, is “[o]ne by or

against whom a lawsuit is brought.” 556 U.S. at 933 (quoting

Black’s Law Dictionary 1154 (8th ed. 2004)). That a wouldbe intervenor may stand to be bound by a judgment or
ROBERT ITO FARM V. MOMS ON A MISSION HUI 11

otherwise adversely affected by it does not make him a party

to the suit. See id. at 934 (“[T]he United States’ status as a

‘real party in interest’ in a qui tam action does not

automatically convert it into a ‘party.’”).

MOM Hui also argues that “parties,” as used in § 636(c),

must mean more than actual parties to the suit, or else it

would have no way of obtaining review of the magistrate

judge’s denial of their motion to intervene. It points to

§ 636(c)(3), which provides that, “[u]pon entry of judgment

in any case referred under paragraph (1) of this subsection

[allowing magistrate judges to conduct proceedings upon

consent of the parties], an aggrieved party may appeal

directly to the appropriate United States court of appeals from

the judgment of the magistrate judge in the same manner as

an appeal from any other judgment of a district court.” 

(emphasis added). MOM Hui contends that if it is not a

“party,” then it cannot appeal from the judgment of the

magistrate judge under § 636(c)(3).

MOM Hui does have a right to appeal the magistrate

judge’s order denying its motion to intervene to this court, but

this right is not based on its status as a party to the litigation. 

Rather, the denial of a motion to intervene is appealable

under the collateral order doctrine. Eisenstein, 556 U.S. at

931 n.2. “In such a case, the [would-be intervenor] is a party

for purposes of appealing the specific order at issue even

though it is not a party for purposes of the final judgment and

Federal Rule of Appellate Procedure 4(a)(1)(B).” Id.; see

also Stringfellow v. Concerned Neighbors in Action, 480 U.S.

370, 375 (1987) (noting that the collateral order doctrine

“recognizes that a limited class of prejudgment orders is

sufficiently important and sufficiently separate from the

underlying dispute that immediate appeal should be
12 ROBERT ITO FARM V. MOMS ON A MISSION HUI

available,” but holding that the doctrine did not apply to a

party that had been granted permissive intervention but

denied intervention as of right); Nat’l Ass’n of Chain Drug

Stores v. New England Carpenters Health Benefits Fund,

582 F.3d 30, 40 (1st Cir. 2009) (noting that would-be

intervenors are “entitled to appeal the denials of intervention

at once under the collateral order doctrine”).

Section 636(c)(3) gives parties to a suit proceeding before

a magistrate judge the right to appeal the magistrate judge’s

final judgment to the court of appeals. As a non-party,

would-be intervenor, MOM Hui could not appeal the final

judgment of the magistrate judge, i.e., the ruling as to whether

the Ordinance is preempted. See 28 U.S.C. § 636(c)(3). But

MOM Hui could nonetheless appeal the denial of its motion

to intervene under the collateral order doctrine. Eisenstein,

556 U.S. at 931 n.2. “Party” therefore means the same thing

in § 636(c)(3) as “parties” does in § 636(c)(1): “[o]ne by or

against whom a lawsuit is brought.” Id. at 933 (quoting

Black’s Law Dictionary, supra at 1154).

Because the magistrate judge had the consent of the

parties and did not need the consent of MOM Hui, the

magistrate judge had jurisdiction to rule on MOM Hui’s

motion to intervene. Effectively presiding as a district judge

over the suit, the magistrate judge’s intervention order

became immediately appealable to this court. See Citizens

for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893,

896 (9th Cir. 2011) (citing 28 U.S.C. § 1291); Perles v. Kagy,

394 F. Supp. 2d 68, 71–73 (D.D.C. 2005). Because MOM

Hui did not appeal that order, we express no view on whether
ROBERT ITO FARM V. MOMS ON A MISSION HUI 13

MOM Hui should have been allowed to intervene. But we

agree with the district court that MOM Hui’s appeal should

have been made to this court and not the district court.

AFFIRMED.