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 from

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 facts

underlying Reiter's employment dispute with Honeywell. After working at

Honeywell for more than thirty-five years, Reiter
 Plaintiff had demanded a jury trial. Although not all of

2

plaintiff's claims were entitled to a jury trial, the magistrate

judge tried the entire case to a jury. As to those claims for

which no jury was required, the magistrate judge treated the jury's

verdict as advisory only.

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retired. He later brought suit against Honeywell and several of its

officials, alleging they violated Title VII, the Minnesota Human Rights Act

(MHRA), the Age Discrimination in Employment Act (ADEA) and committed

various state torts including tortious interference with contract,

defamation, and intentional infliction of emotional distress. Reiter

alleges that his retirement was less than voluntary and that, instead, he

was constructively discharged from his position because of his age and

gender. 

The district court granted summary judgment for defendants on the

breach of contract, tortious interference with contract, and promissory

estoppel claims and referred the remaining matters to the magistrate judge

"as special master, for trial and recommended findings of fact and

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 Rule

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 in

this action. The jury found for Reiter on all claims, finding malice on 2

the defamation claim and constructive discharge on the discrimination

claims. It awarded $315,000 in damages for age and sex discrimination,

$300,000 for damage to reputation and $150,000 for emotional distress. The

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 grant judgment as a matter of

law on
 That section provides: 3

A judge may designate a magistrate to serve as a special

master pursuant to the applicable provisions of this

title and the Federal Rules of Civil Procedure for the

United States district courts. A judge may designate a

magistrate to serve as a special master in any civil

case, upon consent of the parties, without regard to the

provisions of rule 53(b) of the Federal Rules of Civil

Procedure for the United States district courts.

28 U.S.C. § 636(b)(2).

 Rule 53(b) provides: 4

A reference to a master shall be the exception and not

the rule. In actions to be tried by a jury, a reference

shall be made only when the issues are complicated; in

actions to be tried without a jury, save in matters of

account and of difficult computation of damages, a

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the defamation and emotional distress claims and grant a directed verdict

on the negligent retention and supervision claim. 

Following a de novo review of the record, the district court adopted

the magistrate judge's report and recommendation. Reiter appeals,

requesting reinstatement 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 28

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), which

expressly authorize a magistrate judge to conduct trials, were satisfied.

We answer both questions in the negative.

The district court's referral of this 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 was 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 master

without regard to the provisions of this subdivision.

Fed. R. Civ. P. 53(b).

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Civil Procedure. That rule states that matters to be tried to a jury are

only to be referred to 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 such

referral. Although the district court made no such findings, it referred

both the jury and nonjury matters to the magistrate judge for trial. The

only reason given for the referral was that the case had been on the

district court docket for over a year. Therefore, the referral did not

comport with section 636(b)(2).

The remaining portions of section 636(b) also fail to offer statutory

authority for this referral. Section 636(b) allows a district judge to

refer specific matters to a magistrate judge including, but not limited to:

(1) certain pretrial matters, section 636(b)(1)(A), reviewed by the

district court for clear error; and (2) evidentiary hearings and proposed

findings of fact, section 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 the

district court. Section 636(b) does not, however, authorize the magistrate

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 the

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 novo

review of the jury verdict, it reduces the jury to an advisory role in

violation of the Seventh Amendment. 812 F.2d 644, 648 (11th Cir.
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1987). See also In re Wickline, 796 F.2d 1055, 1057 (8th Cir. 1986). 

In contrast to section 636(b), section 636(c) does authorize

magistrate judges to conduct civil jury and nonjury trials. See Lehman

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:

Upon the consent of the parties, a full-time United States

magistrate or a part-time United States magistrate who serves

as a full-time judicial officer 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 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).

By expressing their consent to a referral, parties waive their right to

have their case tried before an Article III judge. Lehman Bros., 739 F.2d

at 1315. As stated above, the parties did not consent to the referral of

this trial to the magistrate judge. 

 

Reiter argues that defendants' failure to lodge an objection to the

referral should operate as a waiver of section 636(c)'s consent

requirement. In support of this contention, Reiter relies primarily on

four cases which are either distinguishable or not binding on this court.

In Peretz v. United States, the parties expressly consented to the

magistrate judge's conducting of the voir dire, the action about which they

later complained. 501 U.S.
 The Fifth Circuit has held that an improper referral is a

5

procedural error, not a jurisdictional one, where the district

court and not the magistrate judge entered the final order. See,

e.g., Equal Employment Opportunity Comm'n v. West Louisiana Health

Servs., Inc., 959 F.2d 1277, 1282 (5th Cir. 1992) (citing Sockwell

v. Phelps, 906 F.2d 1096, 1098 (5th Cir. 1990)). That court's

reasoning emphasizes the importance of the district court's

supervision of the magistrate judge's actions. According to the

Fifth Circuit, the rendering of final judgment by the district

court essentially cures any procedural irregularities in the

referral. With due respect to our sister circuit, we disagree 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 magistrate

judge. Cases upholding the constitutionality of section 636

emphasize the presence of two safeguards: (1) supervision and

control by the district court under subsection (b); and (2) consent

of the parties to proceed in front of a non-Article III judge 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 district

court's review of the jury's verdict creates Seventh Amendment

problems in addition to the Article III concerns already expressed.

See generally Hall, 812 F.2d at 648. For these reasons, we decline

to follow the Fifth Circuit's reasoning.

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923, 925 n.2 (1991). The remaining cases are from the Fifth Circuit Court

of Appeals and are not binding on this court. 

5

As our cases make clear, "[s]ection 636(c) requires a clear and

unambiguous statement in the record of the affected parties' consent to the

magistrate judge's jurisdiction." J.C. Henry v. Tri-Services, Inc., 33

F.3d 931, 933 (8th Cir. 1994) (citing Gleason v. Secretary of Health and

Human Servs., 777 F.2d 1324 (8th Cir. 1985)). On this record, the parties

did not consent to proceed in front of the magistrate judge. A purported

section 636(b) referral may not act as a section 636(c) referral and bypass

the consent requirement of that section. In re Wickline, 796 F.2d at 1058

(stating "[s]ince [the consent] safeguard is not present in a reference

under section (b), to allow a jury trial absent consent under [that

section] is clearly inconsistent with the spirit and
 For instance, under Reiter's proposed partial affirmance of

6

the referrals, he would have us affirm the jury's finding of

constructive discharge on the MHRA claim, a nonjury discrimination

claim. He would then presumably render it binding on the ADEA

allegation, a jury claim, in later proceedings. 

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intent of section (c)"). See also Loewen-America, Inc. v. Advance

Distribut. Co., 673 F.2d 219, 220 (8th Cir. 1982). 

Furthermore, the requirement of consent is fundamental to section

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, the

parties cannot be deemed to have given up their right to proceed in front

of an Article III judge. We will not lightly find a waiver of that

consent. As the Eleventh Circuit has stated:

[T]he waiver approach does violence to Congress' specification

in § (c) that trial before a magistrate must be predicated upon

express consent. That the parties proceeded to trial neither

fulfilled nor removed the requirements of § (c), nor invested

a non-Article III officer with authority in excess of that

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. 

Reiter next argues that even if the jury matters were improperly

referred to the magistrate judge, the nonjury matters were properly

referred there. In so arguing, Reiter implies that the improper referral

of an action implicating a litigant's right to a jury trial is more

problematic than the improper referral of a nonjury 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 were

so intertwined as to prevent this court from sifting through the actions

and separating those properly referred, if any, from those improperly

referred.6
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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 against them. This "wait and see" procedure is contrary to

judicial efficiency. However, the language of the referral statute is

clear. The parties must consent to the referral of a trial to a magistrate

judge. Because the parties did not consent to the referral in this case,

we find that the magistrate judge was without jurisdiction to conduct the

trial. 

 

III. CONCLUSION

Because the district court improperly referred this matter to the

magistrate judge, we dismiss this appeal for lack of jurisdiction and

remand this matter to the district court for further proceedings consistent

with this opinion. 

A true copy.

Attest:

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