[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12936

____________________

PB LEGACY, INC,

a Texas corporation,

Plaintiff, 

TB FOOD USA, LLC, 

Plaintiff-Appellee

Cross Appellant,

versus

AMERICAN MARICULTURE, INC., 

a Florida corporation,

AMERICAN PENAEID, INC., 

a Florida corporation, 

ROBIN PEARL, 

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2 Opinion of the Court 22-12936

Defendants-Appellants

Cross Appellees,

ADVANCED HATCHERY TECHNOLOGY, INC., et al., 

Defendants.

____________________

Appeals from the United States District Court

for the Middle District of Florida

D.C. Docket No. 2:17-cv-00009-JES-NPM

____________________

Before WILLIAM PRYOR, Chief Judge, and JORDAN and BRASHER, Circuit Judges.

WILLIAM PRYOR, Chief Judge:

This appeal and cross-appeal raise several issues concerning 

a civil jury trial about trade secrets, but the threshold issue—

whether the magistrate judge had authority to conduct the last 

three days of proceedings—is dispositive. After counsel rested but 

before the jury returned its verdict, the district judge had to leave.

Before his departure, the district judge proposed that a magistrate 

judge receive the verdict, and the parties agreed to that proposal. 

The magistrate judge not only received the verdict but responded 

to several jury questions and rejected a request for clarification 

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22-12936 Opinion of the Court 3

about the verdict. Because the parties did not consent to have a 

magistrate judge perform non-ministerial duties, the magistrate 

judge improperly exercised Article III authority. We vacate the 

judgment, remand for a new trial, and dismiss the cross-appeal as 

moot.

I. BACKGROUND

About 15 years ago, cousins Ken and Neil Gervais founded 

Primo Broodstock, a shrimp breeding company based in Texas.

Through phenotypic monitoring, the cousins developed a unique 

line of disease-resistant shrimp. Primo achieved success and sold 

shrimp all over the world. As the company grew, it needed more 

space to breed shrimp.

Primo executed a contract with American Mariculture, Inc., 

a Florida-based company that operated a grow-out facility for 

shrimp breeding. But Primo failed to perform many of its contractual obligations to Mariculture. Among other breaches, Primo 

failed to remove its shrimp from Mariculture’s facility on time.

When Mariculture notified Primo that it intended to harvest 

the abandoned shrimp, Primo sued Mariculture in state court.

Robin Pearl, the founder and chief executive officer of Mariculture, 

later met with Ken Gervais and another Primo employee to try to

resolve the suit. The parties agreed to give Primo about three 

months to remove its shrimp from Mariculture’s facility. If the 

shrimp remained after that deadline, Mariculture was expected to 

kill them. But Primo never removed its shrimp, and Mariculture 

never killed them. Instead, after the deadline passed, Mariculture 

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used the shrimp to launch a competing company, American Penaeid, Inc.

Primo sued Mariculture, Penaeid, and Pearl in federal court.

The complaint alleges claims of conversion, defamation, trade secret misappropriation, breach of contract, unfair competition, and 

unjust enrichment. And Mariculture filed counterclaims against 

Primo and some of its employees. Before trial, TB Food, USA, LLC

acquired Primo and its rights in this action, and Primo changed its 

name to PB Legacy. TB Food is the only plaintiff involved in this 

appeal. 

Most of the claims and counterclaims survived summary 

judgment, and the case proceeded to a jury trial. During trial, the 

district judge told the parties that the trial needed to end by a certain date because he had to catch a flight. The district judge threatened a mistrial if the parties failed to finish by his deadline. He said, 

“In terms of running out the clock, y’all know what the clock is. . . .

And, if you run out, I’ll see you next year. We’ll do [the whole trial] 

again.”

Counsel rested before the district judge’s deadline. But the 

jury was still deliberating when the district judge needed to leave. 

The day before his departure, the district judge told counsel that he 

would soon leave, that another district judge could preside the next 

day, but that any remaining period was uncertain:

MR. GARGANO [Plaintiff’s Counsel]: [L]et’s say we 

do go tomorrow. I assume there will be someone covering. And then, obviously, there might be some 

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22-12936 Opinion of the Court 5

action taken by either side, you know, to preserve 

things or—should we do that with that judge or 

should we, like, [p]reserve everything now. How 

does the Court want to handle that? 

THE COURT: I don’t exactly know what you mean 

by [p]reserving everything now, but I had mentioned 

before you got here that, right now, I’ve got a 12 

o’clock flight. I’m trying to . . . see if there’s a later 

flight I can take. . . . I’ve got another District Judge 

lined up to cover for the rest of tomorrow. Thursday 

is a different situation. She’s not available. Of course, 

I won’t be here so I don’t know what happens on 

Thursday.

The next day, with the jury still deliberating, the district 

judge met with counsel and proposed without objection that a 

magistrate judge preside in his absence because he saw no alternative: 

THE COURT: Counsel, I’ve not heard anything from 

the jury. I wanted to gather because, as you know, 

although I moved back my flight, apparently, not far 

enough. I need to be out of here at 3:30. My proposal 

is that we have the Magistrate Judge who has been 

assigned to the case take my place in terms of receiving the verdict from the jury. Judge Mizell is available 

and, of course, can do that. What are your thoughts?

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MR. BRINSON [Defendants’ Counsel]: We actually 

informally discussed that, Judge, and we’re—I think 

we’re fine with that.

MS. THOMPSON [Plaintiff’s Counsel]: That is correct, Your Honor. On behalf of PB Legacy, we would 

have no objection to that. I know that Magistrate Mizell is familiar with the case.

MR. GARGANO: No objection, no.

THE COURT: Okay. I didn’t know of any other way, 

frankly.

MS. THOMPSON: Right.

THE COURT: So, come 3:30, I’ll be gone. And if anything happens from that point on, Judge Mizell will 

be here.

The magistrate judge began presiding that afternoon, and 

over the next three days, the magistrate judge responded to six

notes or questions from the jury. One question concerned how to 

calculate damages. The magistrate judge resolved that request by 

instructing the jury to “refer to the evidence of record and the instructions supplied to you by the Court.”

The magistrate judge also read the verdict and asked the 

clerk to poll the jury. The jury awarded $4.95 million in damages 

to TB Food and PB Legacy on each of their federal and state trade 

secret claims. Before dismissing the jury, the magistrate judge 

asked counsel if there were any issues to address. Defense counsel 

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asked the magistrate judge to ask the jury to clarify whether it intended to award a total of $4.95 million in damages across both the 

federal and state trade secret claims or a total of $9.9 million divided 

equally between each claim. The magistrate judge declined to do 

so and dismissed the jury.

The parties filed post-trial motions. Penaeid and Pearl 

moved for judgment as a matter of law on the trade secret claims 

and raised an issue about damages. TB Food challenged a ruling on 

an affirmative defense and moved for permanent injunctive relief.

The district court denied those motions. No party objected to the 

magistrate judge presiding over the last three days of trial.

II. STANDARD OF REVIEW

We review de novo whether a magistrate judge had authority

to conduct proceedings at a civil jury trial, even when a party fails 

to object in the district court. See Fowler v. Jones, 899 F.2d 1088, 

1092–93 (11th Cir. 1990). 

III. DISCUSSION

Mariculture, Penaeid, and Pearl argue that the magistrate 

judge lacked authority to preside over the last three days of trial 

because the parties did not consent to the magistrate judge’s exercise of Article III authority. TB Food responds that we should not 

consider the issue because it was not raised in the district court and 

that, in any event, consent can be inferred from the parties’ conduct. We conclude that because the district judge did not receive 

the parties’ consent to have a magistrate judge perform nonUSCA11 Case: 22-12936 Document: 92-1 Date Filed: 06/18/2024 Page: 7 of 27
8 Opinion of the Court 22-12936

ministerial functions, the magistrate judge improperly exercised 

Article III authority. 

The Federal Magistrates Act provides that “[u]pon the consent of the parties,” a 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 designated to exercise such 

jurisdiction by the district court.” 28 U.S.C. § 636(c)(1). Consent is

a “critical limitation on this expanded jurisdiction.” Gomez v. United 

States, 490 U.S. 858, 870 (1989). Indeed, section 636(c) is constitutional in part because it requires that the parties and the district 

court “consent to the transfer of the case to a magistrate [judge].” 

Day v. Persels & Assocs., 729 F.3d 1309, 1323 (11th Cir. 2013) (citation and internal quotation marks omitted). Without consent, delegation to a magistrate judge “would violate the constitutional requirement that the judicial power of the United States must be 

vested in Article III courts.” Fowler, 899 F.2d at 1093.

Ordinarily, consent to a magistrate judge’s exercise of Article III authority must be expressed in writing and sought outside 

the presence of both the district judge and the magistrate judge. 

“When a magistrate judge has been designated to conduct civil actions or proceedings, the clerk must give the parties written notice 

of their opportunity to consent under 28 U.S.C. § 636(c).” FED. R.

CIV. P. 73(b)(1). “To signify their consent, the parties must jointly 

or separately file a statement consenting to the referral.” Id. (emphasis added). The “district judge or magistrate judge may be informed of a party’s response to the clerk’s notice only if all parties 

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have consented to the referral.” Id. (emphasis added). These procedures “envision[] advance, written consent communicated to the 

clerk.” Roell v. Withrow, 538 U.S. 580, 586 (2003). And these procedures are designed to “preserve the confidentiality of a party’s 

choice” and “protect[] an objecting party against any possible prejudice at the magistrate judge’s hands later on.” Id.

In limited circumstances, consent may be implied from the 

parties’ conduct. The Supreme Court has found implied consent 

when the parties were informed in advance about the scope of a 

magistrate judge’s authority, were “made aware of the need for 

consent and the right to refuse it,” and “still voluntarily appeared 

to try the case before the Magistrate Judge.” Id. at 586, 590. The 

doctrine of implied consent—where consent is signaled “through 

actions rather than words”—is an exception to the ordinary rule 

that consent to a magistrate judge’s exercise of Article III authority 

must be expressed in writing. See id. at 589; FED. R.CIV. P. 73(b)(1).

Although consent is required before a magistrate judge may 

exercise Article III authority, see 28 U.S.C. § 636(c), a district judge 

may assign “ministerial tasks” to a magistrate judge without consent from the parties, see United States v. Desir, 257 F.3d 1233, 1238 

(11th Cir. 2001); 28 U.S.C. § 636(b)(3). The “mere acceptance of a 

jury verdict and the polling of a jury constitute no more than ministerial tasks that a magistrate judge may properly perform” without the parties’ consent. Desir, 257 F.3d at 1238. But consent is required when a magistrate judge conducts a “critical stage” of a trial. 

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Id. Instructing the jury and responding to jury questions are critical 

stages of a trial. See id.

TB Food argues that we should not review the magistrate 

judge’s authority because the issue was raised for the first time on 

appeal. But we have reviewed the merits of a challenge to a magistrate judge’s authority to conduct matters at trial, even when a 

party failed to object in the district court. See Fowler, 899 F.2d at 

1092 (rejecting argument that “plaintiff’s failure to object to the 

magistrate’s actions at any time during the trial amounted to a 

waiver and that plaintiff is therefore precluded from raising this argument on appeal”). “[W]hen the statute claimed to restrict authority is not merely technical but embodies a strong policy concerning the proper administration of judicial business,” the Supreme 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.” Glidden Co. v. Zdanok, 370 U.S. 

530, 535–36 (1962). The Federal Magistrates Act, which permits delegations of Article III authority, “embodies a strong policy concerning the proper administration of judicial business.” See id. at 536. So 

we will consider whether the magistrate judge lacked the authority

to preside at trial.

The district judge sought the parties’ consent to have the 

magistrate judge receive the verdict. Before his departure the district judge said, “My proposal is that we have the Magistrate Judge 

who has been assigned to the case take my place in terms of receiving the verdict from the jury.” The parties verbally agreed to that 

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proposal. But receiving a verdict is a ministerial task that a magistrate judge may perform without consent. See Desir, 257 F.3d at 1238 

(“[M]ere acceptance of a jury verdict and the polling of a jury constitute no more than ministerial tasks that a magistrate judge may 

properly perform.”); see also Harris v. Folk Constr. Co., 138 F.3d 365, 

370 (8th Cir. 1998) (“The ministerial tasks of supervising a jury and 

receiving its verdict on behalf of an Article III judge are among 

those additional duties delegable under § 636(b)(3).”).

The district court did not seek, and the parties did not express, any agreement to have the magistrate judge perform the Article III functions of responding to jury questions or ruling on a request to have the jury clarify the verdict. In Desir, we explained that 

although the magistrate judge could receive a jury verdict without 

consent, the magistrate judge improperly exercised Article III authority when he instructed the jurors by answering their questions 

during deliberations. Desir, 257 F.3d at 1238; see also Harris, 138 F.3d 

at 370, 373 (no consent needed for magistrate judge to receive verdict, but judgment reversed because magistrate judge dismissed a 

juror); United States v. Gomez-Lepe, 207 F.3d 623, 630, 632 (9th Cir. 

2000) (judgment reversed because magistrate judge decided how 

to address one juror’s equivocal answer). Here, without consent 

from the parties, the magistrate judge exercised Article III authority 

when he responded to jury questions and rejected a request for 

clarification about the verdict.

TB Food insists that consent to the magistrate judge’s exercise of Article III authority can be implied from the parties’ 

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conduct. But the Supreme Court has found implied consent only 

when the parties were informed about the scope of the magistrate 

judge’s authority before they expressed consent. See Roell, 538 U.S. 

at 586. In Roell, the parties were told—before they “signaled consent 

to the magistrate judge’s authority through [their] actions”—that 

the magistrate judge “intended to exercise case-dispositive authority.” Id. at 586, 589. Here, by contrast, the parties were told only 

that the magistrate judge would perform the ministerial task of “receiving the verdict.” The magistrate judge exercised authority well 

beyond the district judge’s proposal and performed the Article III 

functions of instructing the jury on the law and rejecting a request 

to clarify the verdict. See Desir, 257 F.3d at 1238. Consent to a magistrate judge’s performance of a ministerial task—when consent to 

that proposal is not required in any event—does not imply consent 

to a magistrate judge’s performance of Article III functions. 

That the parties failed to object when the magistrate judge 

assumed an Article III role is insufficient to imply consent. The Supreme Court has found implied consent only when the parties 

were “made aware of the need for consent and the right to refuse 

it.” Roell, 538 U.S. at 590. A district judge or magistrate judge may 

advise the parties of the availability of a magistrate judge, “but in 

so doing,” the judge “shall also advise the parties that they are free 

to withhold consent without adverse substantive consequences.” 

28 U.S.C. § 636(c)(2) (emphasis added). Neither the district judge 

nor the magistrate judge told the parties that they had a right to 

proceed before a district judge when the jurors had questions or 

when a party had objections to the verdict form. When the parties 

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are not made aware of the need for consent and their right to refuse 

it, consent cannot be implied.

TB Food finally argues that it was harmless error for the 

magistrate judge to preside over portions of jury deliberations. But 

that argument is foreclosed by our precedent. See Thomas v. Whitworth, 136 F.3d 756, 761 (11th Cir. 1998). “[I]t can never be genuinely ‘harmless’ for a litigant . . . to be compelled to try some or all 

his case before a non-Article III judicial officer not entitled to exercise the power of an Article III judge.” Id.

IV. CONCLUSION

We VACATE the judgment, REMAND for a new trial, and 

DISMISS the cross-appeal as moot.

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22-12936 JORDAN, J., Concurring 1

JORDAN, Circuit Judge, Concurring. 

I agree with the court that the judgment must be vacated 

because, under our current precedent, the defendants never consented to the magistrate judge answering questions from the jury 

and resolving objections to the verdict. Although I join the court’s 

opinion, I write separately to discuss our conflicting civil and criminal decisions dealing with forfeited challenges to the participation 

of magistrate judges. 

I.

With the parties’ consent, a magistrate judge is statutorily 

authorized to preside over a civil case, with or without a jury, and 

enter final judgment. See 28 U.S.C. § 636(c)(1). When a magistrate 

judge is “designated” to exercise jurisdiction in a civil case, “the 

clerk of court shall, at the time the action is filed, notify the parties 

of the availability of a magistrate judge to exercise such jurisdiction,” and the “decision of the parties shall be communicated to 

the clerk of court. . . . Rules of court for the reference of civil matters to magistrate judges shall include procedures to protect the 

voluntariness of the parties’ consent.” § 636(c)(2). See also Fed. R. 

Civ. P. 73(b)(1). The district court or the magistrate judge may 

thereafter advise the parties “of the availability of the magistrate 

judge, but in so doing, shall also advise the parties that they are free 

to withhold consent without adverse substantive consequences.” 

§ 636(c)(2). In a case like this one, where the need for a magistrate 

judge to preside arises at the end of a trial, the clerk of court’s advance notification mechanism may be unavailable or unfeasible. 

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We have ruled that § 636(c) is constitutional under Article III 

because it requires consent and because the district court retains 

sufficient control over the magistrate judge. See Sinclair v. Wainright, 814 F.2d 1516, 1519 (11th Cir. 1987) (agreeing with nine other 

circuits on the issue). Consent, therefore, has constitutional significance. See Wellness Int’l Net., Ltd. v. Sharif, 575 U.S. 665, 674–78 

(2015); 12 Richard L. Marcus, Fed. Prac. & Proc. § 3071.1 (3d ed. & 

April 2023 update). 

The Supreme Court has held that a party can waive or forfeit 

an Article III challenge to the participation of a magistrate judge in 

a trial by consenting (waiver) or by not objecting in a timely manner (forfeiture). I discuss waiver first and then move on to forfeiture. 

“The entitlement to an Article III adjudicator is ‘a personal 

right’ and thus ordinarily ‘subject to waiver[.]’” Wellness Int’l Net., 

Ltd., 575 U.S. at 678 (internal citations and some internal quotation 

marks omitted). Consent to the participation of a magistrate judge, 

moreover, can sometimes be implied. See Roell v. Withrow, 538 U.S. 

580, 590 (2003) (consent may be implied from the parties’ conduct 

when “the litigant or counsel was made aware of the need for consent and the right to refuse it, and still voluntarily appeared to try 

the case before the magistrate judge”). See also Wellness Int’l Net., 

Ltd., 575 U.S. at 684 (“Nothing in the Constitution requires that 

consent to adjudication by a bankruptcy court be express. Nor does 

the relevant statute, 28 U.S.C. § 157, mandate express consent[.]”). 

And consent can be provided by a party’s counsel. See Gonzalez v. 

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United States, 553 U.S. 242, 250 (2008) (“[W]e conclude that express 

consent by counsel suffices to permit a magistrate judge to preside 

over jury selection in a felony trial, pursuant to the authorization 

in [28 U.S.C.] § 636(b)(3).”). 

Just as a party may waive the right to an Article III adjudicator, it may forfeit an objection to the participation of a magistrate 

judge. For example, a “defendant has no constitutional right to 

have an Article III judge preside at jury selection if the defendant 

has raised no objection to the judge’s absence.” Peretz v. United 

States, 501 U.S. 923, 936 (1991).

In Peretz, a felony criminal case, the district court and the 

magistrate judge asked the attorneys for the government and the 

defendant in open court whether their clients consented to have 

the magistrate judge conduct jury selection. Both times the attorneys answered affirmatively. See id. at 925. After he was convicted, 

the defendant appealed on the ground that under Article III the 

magistrate judge did not have the authority to preside over jury selection. The Supreme Court affirmed the conviction. Although 

the parties apparently were not told that they had the right to refuse consent, and although they were not given the opportunity to 

give or refuse consent anonymously, the Court explained that a 

“defendant has no constitutional right to have an Article III judge 

preside at jury selection if the defendant has raised no objection to 

the judge’s absence.” Id. at 936. The Court then concluded that 

“permitting a magistrate to conduct the voir dire in a felony trial 

when the defendant raises no objection is entirely faithful to the 

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congressional purpose in enacting and amending the Federal Magistrates Act.” Id. at 940.1

Given that the right to an Article III adjudicator can be 

waived or forfeited, the unauthorized participation of a magistrate 

judge in a civil case is not jurisdictional in the subject-matter sense. 

See, e.g., United States v. Finnesy, 975 F.3d 675, 683 (10th Cir. 2020) 

(explaining that “the term ‘jurisdiction,’ when employed by courts 

in reference to a magistrate judge’s authority, is not used in the 

strict sense of subject-matter jurisdiction”). It is true, of course, 

that “Article III also serves a structural purpose, ‘barring congressional attempts to transfer jurisdiction [to non-Article III tribunals] 

for the purpose of emasculating constitutional courts and thereby 

prevent[ing] the encroachment or aggrandizement of one branch 

at the expense of the other.’ But allowing Article I adjudicators to 

decide claims submitted to them by consent does not offend the 

separation of powers so long as Article III courts retain supervisory 

authority over the process.” Id. (internal citations and some internal quotation marks omitted). 

It seems to me that under Peretz—which involved more 

weighty Article III considerations not present here—the parties’ express consent to the magistrate judge taking the verdict was 

1 We have characterized Peretz as a case in which the defendant himself expressly consented to the magistrate judge presiding over jury selection. See 

United States v. Maragh, 189 F.3d 1315, 1316 (11th Cir. 1999) (on rehearing). 

But that is a misreading of Peretz. The defendant’s attorney stated that his 

client consented, but no one ever personally asked the defendant if he did in 

fact consent. See Peretz, 501 U.S. at 925. 

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22-12936 JORDAN, J., Concurring 5

sufficient to allow him to carry out that task. In any event, there 

was no legal problem with respect to the taking of the verdict because the “mere acceptance of a jury verdict and the polling of the 

jury constitute no more than ministerial tasks that a magistrate 

judge may properly perform[.]” United States v. Desir, 257 F.3d 1233, 

1238 (11th Cir. 2001). 

II.

As noted, I agree with the majority that we must set aside 

the judgment. Under our decisions in Fowler v. Jones, 899 F.2d 1088, 

1092–93 (11th Cir. 1990), and Thomas v. Whitworth, 136 F.3d 756, 

763 (11th Cir. 1998), the magistrate judge went beyond what the 

parties had agreed to—he answered six questions from the jury and 

resolved the defendants’ objections to the verdict. The defendants 

were never asked to give their approval to the magistrate judge doing these things, and therefore never consented. See Glover v. Alabama Bd. of Corrections, 660 F.2d 120, 124 (5th Cir. Unit B Oct. 26, 

1981) (explaining that “fundamental reasons . . . require us to construe narrowly the consent of the parties”).2

In Fowler, we exercised plenary review as to the contention 

that the magistrate judge lacked jurisdiction to preside over a civil 

trial without the appellant’s consent. In that case the magistrate 

2 Glover is binding under Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 

(11th Cir. 1982). But cf. United States v. Mendoza-Lopez, 338 F.3d 1153, 1158 (10th 

Cir. 2003) (by consenting to have the magistrate judge accept the jury verdict, 

the defendant also “consented to the magistrate judge’s handling of the deliberating jury unless a need arose to consult the district judge”). 

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judge had the district judge sitting next to him during the trial and 

purported to act as the latter’s mouthpiece. Although the appellant did not object to this arrangement below, we rejected the appellees’ argument that this failure constituted waiver: “[F]ailure to 

object to th[is] arrangement is no substitute for the express consent 

required if we find that the magistrate judge, and not the district 

judge, presided over the trial.” Fowler, 899 F.2d at 1092 (relying on 

Hall v. Sharpe, 812 F.2d 644, 649 (11th Cir. 1987)). On the merits, we 

held that the magistrate judge had effectively presided over the trial 

and that this constituted reversible error. See id. at 1093. Because 

Fowler is a civil case, and is the decision most directly on point, the 

majority correctly conducts de novo review and orders vacatur of 

the judgment. See also Rembert v. Apfel, 213 F.3d 1331, 1334 (11th 

Cir. 2000) (explaining, before Roell and Wellness International Network, that “[f ]ailure to object is not equal to consent”).3

The majority also properly does not engage in harmless error review. Our earliest civil case on the issue, Thomas, rejected the 

notion that the improper participation by a magistrate judge could 

be subject to such review. See Thomas, 136 F.3d at 763 (“[T]he concept of harmless error cannot be used to sustain the underlying 

judgment, since that judgment was rendered by a jury whose selection was supervised by a magistrate judge who lacked the authority 

to undertake the task designated to him by the district court.”). 

3 Fowler predated Peretz, Roell, and Wellness International Network, but no one 

has argued that those Supreme Court cases abrogated Fowler. In the absence 

of adversarial briefing, I assume that Fowler remains binding.

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22-12936 JORDAN, J., Concurring 7

But Thomas is not faithful to the federal provisions mandating harmless error review in civil cases. See 28 U.S.C. § 2111 (“On 

the hearing of any appeal . . . the court shall give judgment . . . without regard to errors or defects which do not affect 

the substantial rights of the parties.”); Fed. R. Civ. P. 61 (“At every 

stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s substantial rights.”). Federal 

courts cannot use their supervisory powers to ignore the harmless 

error standard required in criminal cases, see Bank of Nova Scotia v. 

United States, 487 U.S. 250, 254 (1987) (holding that a “federal court 

may not invoke supervisory power to circumvent the harmless-error inquiry prescribed by Federal Rule of Criminal Procedure 

52(a)”), and that same prohibition applies with respect to civil cases. 

A per se rule of vacatur is simply inconsistent with the commands 

of § 2111 and Rule 61.

III.

The general rule is that “[i]f a litigant believes that an error 

has occurred (to his detriment) during a federal judicial proceeding, 

he must object in order to preserve the issue. If he fails to do so in 

a timely manner, his claim for relief from the error is forfeited. . . . 

If an error is not properly preserved, appellate-court authority to 

remedy the error (by reversing the judgment, for example, or ordering a new trial) is strictly circumscribed.” Puckett v. United States, 

556 U.S. 129, 134 (2009). If we were not bound by cases like Fowler 

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and Thomas, I would not conduct plenary review and would reject 

a per se rule of vacatur. 4

A.

When the jury asked questions during deliberations, the defendants did not object to the magistrate judge responding to them. 

Nor did they request that the deliberations be paused so that the 

questions could be answered by the district judge upon his return. 

And when the jury returned its verdict, and the defendants lodged 

an objection to it, they again did not object to the magistrate judge 

resolving their objection. 

Under some of our criminal cases, the defendants’ failure to 

object might have constituted a waiver or forfeiture of the right 

(statutory or constitutional) to an Article III judge. Or the magistrate judge’s participation might have been subject to harmless error review. See United States v. Brantley, 723 F.2d 1429, 1443 (11th 

Cir. 1984) (holding that defendants in a criminal case “waived the 

requirement” to have an Article III judge rule on objections and 

instructions to the jury because they failed to object to the 

4 We have held that, absent the parties’ consent, a magistrate judge lacks jurisdiction to enter final judgment in civil case. See, e.g., McNab v. J & J Marine, 

Inc., 240 F.3d 1326, 1328 (11th Cir. 2001). But here the magistrate judge did 

not enter final judgment, and the issue on appeal concerns only his participation during the jury deliberations and the return of the verdict. We are not, 

therefore, dealing with a matter of jurisdictional significance. Cf. Burton v. 

Schamp, 25 F.4th 198, 203–04, 206–07 (3d Cir. 2022) (where none of the defendants consented, the magistrate judge lacked jurisdiction to dismiss the plaintiff’s complaint with prejudice).

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magistrate judge giving a supplemental instruction without consulting the parties, and concluding that, in any event, any error was 

harmless because the instruction was correct); United States v. Boswell, 565 F.2d 1338, 1341–42 (5th Cir. 1978) (holding that having a 

magistrate judge presiding over closing arguments in a criminal 

case, without the parties’ consent, was harmless error because his 

rulings and responses to objections during the arguments “could 

not have misled the jury”).

Even if the defendants’ failure to object did not constitute 

waiver, see, e.g., United States v. Lewis, 492 F.3d 1219, 1221–22 (11th 

Cir. 2007) (explaining that failure to assert a right constitutes forfeiture and not waiver), some of our criminal cases have applied plain 

error review when there was no objection below to the participation of the magistrate judge. See United States v. Schultz, 565 F.3d 

1353, 1356 (11th Cir. 2009) (“Because Schultz did not raise his challenge to the magistrate judge’s authority in the district court, however, we review it only for plain error.”); United States v. Freixas, 332 

F.3d 1314, 1316 (11th Cir. 2003) (“Freixas’ argument concerning the 

magistrate judge’s authority is advanced for the first time on appeal, and accordingly we review it only for plain error.”). Admittedly our criminal cases are not uniform in this respect, and some 

reject the use of the plain error standard. See Maragh, 189 F.3d at 

1316–18. But it is a fair question whether cases like Maragh are still 

good law after our recent decision in United States v. Steiger, 99 F.4th 

1316, 1322 (11th Cir. 2024) (en banc) (“[W]e won’t reverse for any 

error (even an outcome-changing one) when the party claiming error did not object below unless the error is ‘plain’—meaning that it 

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is obvious and it affected substantial rights—and it undermined the 

fairness of the proceeding.”).5

From my perspective, the defendants’ failure to lodge any 

objection whatsoever below should be treated as a forfeiture of the 

alleged statutory error. That failure, moreover, should trigger application of what we call the civil plain error standard. We have 

described that standard in various ways, but the unifying theme is 

that correction of a forfeited civil error is not automatic but discretionary. See, e.g., Burch v. P.J. Cheese, Inc., 861 F.3d 1338, 1352 (11th 

Cir. 2017) (“In an exceptional civil case, we might entertain the objection by noticing plain error . . . . Under the civil plain error 

standard, we will consider an issue not raised in the district court if 

it involves a pure question of law, and if refusal to consider it would 

result in a miscarriage of justice.”) (citations and internal quotation 

marks omitted); Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 

1324, 1332 (11th Cir. 2004) (“First, an appellate court will consider 

an issue not raised in the district court if it involves a pure question 

of law, and if refusal to consider it would result in a miscarriage of 

justice. Second, the rule may be relaxed where the appellant raises 

an objection to an order which he had no opportunity to raise at 

the district court level. Third, the rule does not bar consideration 

5 A number of our sister circuits also apply plain error review in criminal cases 

where a magistrate judge’s participation is challenged for the first time on appeal. See, e.g., Finnesy, 953 F.3d at 682–84; United States v. Gonzalez, 483 F.3d 

390, 392 (5th Cir. 2007); United States v. Torres, 258 F.3d 791, 794 (8th Cir. 2001); 

United States v. Jones, 938 F.2d 737, 744 (7th Cir. 1991); United States v. RiveraSola, 713 F.2d 866, 874 (1st Cir. 1983).

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by the appellate court in the first instance where the interest of substantial justice is at stake. Fourth, a federal appellate court is justified in resolving an issue not passed on below . . . where the proper 

resolution is beyond any doubt. Finally, it may be appropriate to 

consider an issue first raised on appeal if that issue presents significant questions of general impact or of great public concern.”). 

B.

The defendants’ failure to make contemporaneous objections to the magistrate judge’s participation during the jury’s deliberations and the return of the verdict may have been understandable. A trial can be fast-moving, and things may not always be clear 

or apparent in the fog of legal battle. But the defendants had ample 

opportunity to object later. 

After the verdict was returned and filed, the defendants filed 

substantial post-trial motions seeking judgment as a matter of law 

or a new trial on numerous grounds. See D.E. 483, 484, 530, 543. 

By my count, the defendants made at least 10 separate arguments 

in support of their motions. But one argument was conspicuously 

missing—the contention that the magistrate judge had exceeded 

his authority by responding to jury questions and resolving an objection to the jury verdict without proper consent. Also missing 

from the defendants’ post-trial motions was any argument that the 

magistrate judge’s responses to the jury questions and resolution 

of the objection to the jury verdict were substantively incorrect. 

During oral argument, appellate counsel for the defendants 

explained that his clients did not lodge any objections to the 

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magistrate judge’s participation in their post-trial motions because 

they were not aware that they had a right to refuse consent and a 

right to demand the presence of an Article III judge during deliberations. See Oral Argument Audio at 37:20. Yet we do not generally 

forgive the forfeiture of a claim just because a party claims ignorance of the law, especially when the party is represented by counsel. See, e.g., United States v. Ramirez, 537 F.3d 1075, 1085 (9th Cir. 

2008) (“Regardless of whether Ramirez’s counsel chose not to object for a strategic reason or because of an ignorance of the law, 

Ramirez is bound by the decision of his counsel not to object.”). 

Indeed, ignorance is sometimes the very reason for the forfeiture 

of a legal objection. See, e.g., United States v. Escalante-Reyes, 689 F.3d 

415, 421–22 (5th Cir. 2012) (en banc) (“Indeed, some (maybe most) 

of the time, the failure to object is the product of inadvertence, 

ignorance, or lack of time to reflect.”); Govt. of the Virgin Islands v. 

Rosa, 399 F.3d 283, 291 (3d Cir. 2005) (finding forfeiture because 

“the failure to object [by counsel], and moreover his agreement on 

at least three occasions to the erroneous jury instruction, stemmed 

from the circumstance that he was unaware of the correct rule of 

law or, if aware of it, did not realize that the intent instruction misstated it”).

 I do not, of course, know the exact reason for the defendants’ failure to object to the magistrate judge’s participation in the 

post-trial motions, but I have a suspicion. Had the defendants objected, I am confident that the district court would have held an 

evidentiary hearing to figure out the extent and limits (if any) of 

the defendants’ consent to the magistrate judge’s participation. At 

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that hearing, the defendants and their trial counsel might have had 

to explain, under oath, what they knew, discussed, and understood 

about their right to refuse consent and the extent of their consent. 

And only heaven knows what that testimony, subject to cross-examination, would have revealed. See Wellness Int’l Net., Ltd., 575 

U.S. at 685 (explaining that determining whether there was consent 

to a bankruptcy judge’s resolution of a certain claim “require[d] a 

deeply factbound analysis of the procedural history unique to this 

protracted litigation”). 

By objecting to the magistrate judge’s participation for the 

first time in their initial brief on appeal, the defendants avoided 

what might have been a problematic evidentiary hearing. If that is 

what happened, it does not seem right to me that the issue they 

failed to raise below is now being reviewed de novo on appeal without any plain error or harmless error inquiry. Cf. Puckett, 556 U.S. 

at 134 (“[T]he contemporaneous-objection rule prevents a litigant 

from ‘sandbagging’ the court—remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor.”) (internal quotation marks omitted). 

IV.

We recently convened en banc to reject our previous per se 

rule of reversal in criminal cases where the district court fails to 

explain its chosen sentence. We held that, if there is no contemporaneous objection to the district court’s failure, plain error review 

results. See Steiger, 99 F. 4th at 1322. Hopefully one day we will 

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take the same approach to forfeited challenges to the participation 

of a magistrate judge in both civil and criminal cases.

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