### The Honorable Andrew W. Bogue, United States District Judge 1 

### for the District of South Dakota, sitting by designation. ___________ Nos. 95-2859/2884

___________ George Reiter, * * Appellant/Cross-Appellee, * * Appeals from the United States v. * District Court for the District * of Minnesota. Honeywell, Inc.; Donna Neff; * Dennis Madden; Thomas * Wylie, * * Appellees/Cross-Appellants.*

___________ Submitted: June 10, 1996 Filed: January 16, 1997

___________ Before BEAM and HEANEY, Circuit Judges, and BOGUE, District Judge. 1

___________ BEAM, Circuit Judge.

In this employment discrimination case, George Reiter appeals fro m the district court's order which adopted the report and recommendation of the magistrate judge to whom the case was referred. Because we find that the magistrate judge was without jurisdiction to conduct a jury trial in this matter, we dismiss this appeal for lack of jurisdiction and remand to the district court for further proceedings consistent with this opinion.

I. BACKGROUND

For purposes of this opinion, we need only outline the fact s underlying Reiter's employment dispute with Honeywell. After working at Honeywell for more than thirty-five years, Reiter

### Plain tiff had demanded a jury trial. Although not all o f 2 

### pla intiff's claims were entitled to a jury trial, the magistrat e judge tried the entire case to a jury. As to those claims fo r which no jury was required, the magistrate judge treated the jury's verdict as advisory only.
-2- reti red. He later brought suit against Honeywell and several of it s officials, alleging they violated Title VII, the Minnesota Human Rights Ac t (MHRA) , the Age Discrimination in Employment Act (ADEA) and committe d various state torts including tortious interference with contract , defamat ion, and intentional infliction of emotional distress. Reite r alleges that his reti rement was less than voluntary and that, instead, he
was constructively discharged from his position because of his age an d gender.

The district court granted summary judgment for defendants on th e breach of contract, tortious interference with contract, and promissor y estoppel claims and referred the remaining matte rs to the magistrate judge "as spec ial master, for trial and recommended findings of fact an d conclusions of law." Reiter v. Honeywell , No. 4 -93-CV-394, order at 1 (D. Minn. Aug. 12, 1994). In its referral order, the district court cited Rul e 53(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(2). Id. The parties did not consent to this referral or complete the consent forms sent to them by the Clerk of Court at the commencement of the action

.

Upon referral, the magistrate judge presided over a jury trial i n this actio n. The jury found for Reiter on all claims, finding malice on 2 the def amation claim and constructive discharge on the discriminatio n claims. It awarded $315,000 in damages for age and sex discrimination , $300,000 for damage to reputation and $150,000 for emotional distress. Th e magistrate judge then recommended that the district court enter judgment
on the discrimination claims, order Reiter's reinstatement, grant Reiter backpay with prejudgment interest, grant Reiter attorneys' fees and costs, deny defendants' motion for a new trial, but gra nt judgment as a matter of law on

### That section provides: 3 

### A judge may designate a magist rate to serve as a special master pursuant to the applicable provisions of thi s tit le and the Federal Rules of Civil Procedure for th e United States district courts. A judge may designate a magistrate to serve as a special master in any civi l case, upon consent of the part ies, without regard to the pro visions of rule 53(b) of the Federal Rules of Civi l Procedure for the United States district courts. 28 U.S.C. § 636(b)(2). Rule 53(b) provides: 4



### Areference to a master shall be the exception and no t the rule. In actions to be tr ied by a jury, a reference sha ll be made only when the issues are complicated; i n actions to be tried without a jury, save in matters o f account and of difficult computation of damages, a
-3- the defamation and em otional distress claims and grant a directed verdict on the negligent retention and supervision claim.
Following a de novo review of the re cord, the district court adopted the magistrate judge's report and recommendation. Reiter appeals , requesting reinstatem ent of the jury's full award of damages. Defendants cross-appeal the judgment for Reiter.

II. DISCUSSION

We must determine whether a magistrate judge's authority under 2 8 U.S.C. § 636(b)(2) is broad enough to encompass the jury trial conducted here and, if not, whether the requirements of section 636(c), whic h expressly authorize a magistrate judge to conduct trials, were satisfied. We answer both questions in the negative.

The district court's referral of thi s matter to the magistrate judge was purportedly under 28 U.S.C. § 636 (b)(2). Because the parties did not 3 consent to that referral, the magistrate judge w as bound by the strictures of Rule 53(b) of the Federal Rules of 4

### reference shall be made only upon a showing that some exceptional

condition requires it. Upon the consent of the parties, a magistrate judge may be designated to serve as a special maste r without regard to the provisions of this subdivision. Fed. R. Civ. P. 53(b).
-4- Civil Procedure. Tha t rule states that matters to be tried to a jury are only to be referred t o a special master if the issues are complicated and that those matters to be tried without a jury are only to be referred to
a master upon a finding of "some exceptional condition" requiring suc h referral. Although t he district court made no such findings, it referred both the jury and non jury matters to the magistrate judge for trial. The only reaso n given for the referral was that the case had been on th e district court docket for over a year. Therefore, the referral did no t comport with section 636(b)(2).
The remaining portions of section 636(b) also fail to offer sta tutory authorityfor this referral. Section 636(b) allows a district judge t o refer specific matters to a magistrate judge including, but not limited to : (1) c ertain pretrial matters, section 636(b)(1)(A), reviewed by th e district court for cl ear error; and (2) evidentiary hearings and proposed findings of fact, sec tion 636(b)(1)(B), reviewed by the district court de
novo. Under these subsections, consent of the parties is not required and , as stated above, the matters referred are subject to reconsideration by th e district court. Section 636(b) does not, however, authorize the magistrat e judge to conduct jury trials. As the Eleventh Circuit stated in Hall v. Sharpe , trial by jury under (b)(1) would create a "paradox"--if th e district court fails to conduct a de novo review of the jury verdict, it would not comply with the statute; if the district court conducts a de nov o review o f the jury verdict, it reduces the jury to an advisory role i n violation of the Seventh Amendment. 812 F.2d 644, 648 (11th Cir.

### -5-

1987). See also In re Wickline , 796 F.2d 1055, 1057 (8th Cir. 1986).

In c ontrast to section 636(b), section 636(c) does authoriz e magistrate judges to conduct civil jury and nonjury trials. See Lehma n Bros. Kuhn Loeb, Inc. v. Clark Oil & Ref. Corp. , 739 F.2d 1313 (8th Cir. 1984) (en banc) (upholding constitutionality of section 636(c))

. Subsection (c) provides, in relevant part:

Upo n the consent of the parties, a full-time United State s magistrate or a part-time United States magistrate who serves as a full-time judicial officer may conduct any or al l proceed ings in a jury or nonjury civil matter and order th e ent ryof judgment in the case, when specially designated t o exercise such jurisdiction by the district court or courts he serves.

28 U.S.C. § 636(c)(1). However, as the statute makes clear, the reference of trials is contingent upon the parties' consent. See , e.g. , Adams v

. Heckler , 794 F.2d 303, 307 (7th Cir. 1986); Lehman Bros. , 739 F.2d at 1315 ; Alaniz v. California Processors, Inc. , 690 F.2d 717, 720 (9th Cir. 1982). Byexpressing their consent to a referral, parties waive their right t o have their case tried before an Article III judg e. Lehman Bros. , 739 F.2d at 1315. As stated a bove, the parties did not consent to the referral of this trial to the magistrate judge.

Reiter ar gues that defendants' failure to lodge an objection to the referr al should operate as a waiver of section 636(c)'s consen t req uirement. In support of this contention, Reiter relies primarily o n four cases which are either distinguishable or not binding on this court. In Peret z v. United States , the parties expressly consented to th e magistrate judge's conducting of the voir dire, the action about which the y later complained. 501 U.S.

### The F ifth Circuit has held that an improper referral is a 5 

### pr ocedural error, not a jurisdictional one, where the distric t court and not the magistrate judge entered the final order. See , e.g. , Equal Employment Opportu nity Comm'n v. West Louisiana Health Servs., Inc. , 959 F.2d 1277, 1 282 (5th Cir. 1992) (citing Sockwell v. Phelps , 906 F.2d 1096, 1098 (5th Cir. 1990)). That court' s reaso ning emphasizes the importance of the district court' s sup ervision of the magistrate judge's actions. According to th e Fifth Circuit, the rendering of final judgment by the distric t cou rt essentially cures any procedural irregularities in th e referral. With due respect to our sister circuit, we disagr ee with such reasoning. As the facts of this case show , the district court's entry of a final order does not cure the improper referral to the mag istrate judge. Cases upholding the constitutionality of section 63 6 emphasize the presence of two safeguards: (1) supervision an d control by the district court under subsection (b); and (2) consent of the parties to proceed in front of a non-Article III judg e under subsection (c). See , e.g. , In re Wickline , 796 F.2d at 1058 ; Lehman Bros. , 739 F.2d at 1315. In this case, there was no consent for a trial under subsection (c). Additionally, the distric t co urt's review of the jury's verdict creates Seventh Amendmen t problems in addition to the Article III concerns already exp ressed. See generally Hall , 812 F.2d at 648. For these reasons, we decline to follow the Fifth Circuit's reasoning.
-6- 923, 925 n.2 (1991). The remaining cases are fr om the Fifth Circuit Court of Appeals and are not binding on this court. 5

As our ca ses make clear, "[s]ection 636(c) requires a clear an d unambiguous statement in the record of the affected parties' consent to th e magist rate judge's jurisdiction." J.C. Henry v. Tri-Services, Inc. , 3 3 F.3d 931, 933 (8th Cir. 1994) (citing Gleason v. Secretary of Health and Human Servs. , 777 F.2d 1324 (8th Cir. 1985)). O n this record, the parties did not consent to pr oceed in front of the magistrate judge. A purported section 636(b) referral may not act as a section 636(c) referral and bypas s the consent requirement of that section. In re Wickline , 796 F.2d at 1058 (st ating "[s]ince [the consent] safeguard is not present in a referenc e under sec tion (b), to allow a jury trial absent consent under [tha t section] is clearly inconsistent with the spirit and

### For instance, under Reiter's proposed partial affirmance o f 6 

### the referrals, he would have us affirm the jury's finding o f constructive discharge on the MHRA claim, a nonjury discrimination cl aim. He would then presumably render it binding on the ADE A allegation, a jury claim, in later proceedings.
-7- intent o f section (c)"). See also Loewen-America, Inc. v. Advanc e Distribut. Co. , 673 F.2d 219, 220 (8th Cir. 1982).

Furth ermore, the requirement of consent is fundamental to sectio n 636(c)'s constitutionality. See , e.g. , Gomez v. United States , 490 U.S. 858, 870 (1989); Lehman Bros. , 739 F.2d at 1315. Without that consent, th e parties cannot be dee med to have given up their right to proceed in front of an Article III judge. We will not lightly find a waiver of tha t consent. As the Eleventh Circuit has stated:
[T]he waiver approach do es violence to Congress' specification in § (c) that trial before a magistrate must be pre dicated upon express consent. That the parties proceeded to trial neither fulfilled nor removed the requirements of § (c), nor invested a n on-Article III officer with authority in excess of tha t provided by law.

Hall , 812 F.2d at 649. On these facts, we find that the parties did not consent to a jury trial in front of the magistrate judge. Re iter next argues that even if the jury matters were improperl y referr ed to the magistrate judge, the nonjury matters were properl y referred there. In s o arguing, Reiter implies that the improper referral of an act ion implicating a litigant's right to a jury trial is mor e problematic than the improper referral of a nonj ury action. See generally In re Wickline , 796 F .2d at 1058. Although we acknowledge that only some of Reiter's claims were entitled to a jury trial, we need not reach this argument. On these facts, the issues referred to the magistrate judge wer e
so intertwined as to prevent this court from sifting through the actions and se parating those properly referred, if any, from those improperl y referred. 6

### -8- Our holding today is in no way meant to condone defendants' actions. Defendants only complained of the referral after the jury rendered a hefty verdict a gainst them. This "wait and see" procedure is contrary t o judicial efficiency. However, the language of the referral statute i s clear. The parties must consent to the referral of a trial to a magistrat e judge. Because the p arties did not consent to the referral in this case, we find that the magi strate judge was without jurisdiction to conduct the trial.

III. CONCLUSION

Because the district court improperly referred this matter to th e magistr ate judge, we dismiss this appeal for lack of jurisdiction an d remand this matter to the district court for further proceedings consisten t with this opinion.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.