[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 96-8482

________________________

D. C. Docket No. 93-CV-22

ALBERT G. THOMAS,

Plaintiff-Appellant,

versus

BOBBY R. WHITWORTH;

LANSON NEWSOME; ALLEN L.

AULT; TONY TURPIN,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(March 5, 1998)

Before TJOFLAT, BIRCH and MARCUS*, Circuit Judges.

 

*Honorable Stanley Marcus was a U.S. District Judge of the Southern District of Florida sitting by

designation as a member of this panel when this appeal was argued and taken under submission.

On November 24, 1997 he took the oath of office as a United States Circuit Judge of the Eleventh

Circuit.
2

MARCUS, Circuit Judge:

Plaintiff-Appellant Albert Thomas filed this lawsuit seeking

damages and injunctive relief for alleged civil rights violations

and other allegedly unlawful acts by the Defendant-Appellees.

After the completion of discovery, the case was set for jury trial

before the presiding district court judge. Over Thomas's

objection, a United States Magistrate Judge supervised the jury

selection process and selected a panel of jurors to hear the case.

That jury eventually returned a verdict in favor of the Defendants.

In this appeal, Thomas argues that a magistrate judge cannot

preside over the jury selection process in a civil action where one

of the parties has indicated his objection to this practice and

unequivocally stated his desire to have the entire lawsuit tried

before a district judge. Thomas also suggests that, under these

circumstances, a new trial must be provided, since his inability to

pinpoint any tangible prejudice flowing from the magistrate judge's

supervision of voir dire does not make the error harmless. For the

reasons stated below, we agree that a new trial is warranted.

I.

Thomas is a prisoner in a Georgia state penitentiary. On June

29, 1992, he filed a 38-page pro se complaint against Appellees

Whitworth, Newsome and Thomas, officials in the Georgia prison

system, seeking relief under 42 U.S.C. §1983 and other provisions

for a series of alleged civil rights violations relating to his

confinement. Appellee Ault was subsequently added as an additional

Defendant. When the case was trial-ready, the district court, on

January 26, 1996, directed Thomas to indicate, no later than

February 5, 1996, whether he consented to trying the case before a

magistrate judge. On February 2, 1996, Thomas advised the district
1

It appears from the record that the magistrate

judge was in the course of presiding over jury

selection in several pro se prisoner cases. 

3

court that he did not consent to a magistrate judge trial.

Nevertheless, on February 22, 1996, the case was called for jury

selection by the appointed magistrate judge, in accordance with the

district judge's wishes.1

 Before the selection process got

underway, Thomas reiterated his objection during a sidebar colloquy

with the magistrate judge:

MAGISTRATE: You know you've got a right to

have your case heard by a District Court

Judge, and have a District Court Judge try

your case?

THOMAS: Yes, sir.

MAGISTRATE: You've also got a right to have a

District Court Judge preside over jury

selection in your case. . . . Now, you've got

a right to have him preside over everything,

including jury selection . . . [I]f you have

any objection to me presiding over the jury

selection, then we will not select the jury on

this case today, and Judge Moore will have to

schedule the trial at a later time when he can

come and have a jury selected and try the case

then.

THOMAS: I'd like for Judge Moore to handle

the whole proceeding.

MAGISTRATE: You want him to handle the whole

proceeding?

THOMAS: Yes, sir.

MAGISTRATE: So you do not agree for me to

preside over the jury selection?

THOMAS: No, sir.

At the conclusion of this sidebar conversation, the magistrate

judge supervised the jury selection process in several other

lawsuits. Disregarding Thomas's objection, he then proceeded with

jury selection in the case at bar. The magistrate judge approved
4

a panel of jurors to hear the case, and sent the panel home,

advising them to contact the Clerk of Court concerning their duty

to report for jury service on March 19, 1996, the anticipated date

of trial. 

On March 6, 1996, Thomas filed with the district court an

application entitled "Plaintiff's Objections to Magistrate Judge

Selection of Jury on February 22, 1996." Thomas did not suggest

that the magistrate judge conducted the selection process

improperly; nor did he interpose an objection to the composition of

the panel. Rather, he argued that he did not consent to the

magistrate judge's supervision of the voir dire, and therefore a

"new jury should be [s]elected by a judge." The district judge

denied this motion in an order dated March 6th, stating that he was

"satisfied that the jury selection was properly designated to and

conducted by [the] Magistrate." The trial commenced on March 19,

1996. At the start of trial, Thomas orally renewed his objection

to the magistrate judge's supervision of the jury selection

process. Thomas also requested that the jury be dismissed and the

case be tried to the court, although the district judge denied this

application based on the Appellees' unwillingness to consent to a

non-jury trial. The jury was sworn, the trial began and a verdict

in favor of the Appellees was returned two days later. The verdict

was reduced to judgment on March 21, 1996. Thomas moved for a new

trial on March 29, 1996, restating his objection to the district

court's use of a magistrate judge to supervise jury selection. The

motion was denied in an order dated April 5, 1996. Thomas filed a

notice of appeal on April 17, 1996. He has been supplied with

counsel for the sole purpose of addressing the propriety of the

magistrate judge's handling of the jury selection process. 
5

II.

This appeal raises questions of law that must be examined de

novo. The first issue for review requires us to ask if a

magistrate judge may preside over jury selection in a civil case

despite the properly preserved objection of one of the parties.

Magistrate judges do not share the privileges or exercise the

authority of judges appointed under Article III of the United

States Constitution; rather, magistrate judges draw their authority

entirely from an exercise of Congressional power under Article I of

the Constitution. Consequently, magistrate judges may not act

contrary to the limitations prescribed by the national legislature.

See, e.g., NLRB v. A-Plus Roofing, Inc., 39 F.3d 1410, 1415 (9th

Cir. 1994) (stating that "federal magistrates are creatures of

statute, and so is their jurisdiction. [Courts] cannot augment it

[and] cannot ask them to do something Congress has not authorized

them to do"). The jurisdiction and duties of federal magistrate

judges are outlined principally in section 636 of Title 28 of the

United States Code. The statute, among other things, grants

district judges the authority to assign certain pre-trial matters

to the appropriate magistrate judge. 28 U.S.C. §636(b)(1).

Section 636(b)(3) also permits a district judge to assign to a

magistrate, with or without the consent of the parties, "such

additional duties as are not inconsistent with the Constitution and

laws of the United States."

The statute does not afford magistrate judges the right to

preside over trials (except for the trial of misdemeanor criminal

offenses in accordance with 18 U.S.C. §3401). Section 636(c) does

permit a district judge to designate a magistrate judge to "conduct

any or all proceedings in a jury or nonjury civil matter," but only
6

"[u]pon the consent of the parties." See Hall v. Sharpe, 812 F.2d

644, 646-47 (11th Cir. 1987) (observing that section 636(c)

authorizes a magistrate judge to conduct civil jury trials, but

stressing that "[e]xplicit, voluntary consent is crucial to this

procedure" in order to obviate concerns about constitutionality and

protect against the wholesale delegation of certain classes of

cases and litigants); see also Fowler v. Jones, 899 F.2d 1088, 1092

(11th Cir. 1990) (adding that "'valid consent is the linchpin of 28

U.S.C. §636(c)'") (citation omitted). The plain language of the

statute establishes that if one of the parties in a civil lawsuit

pending before a district court states his unwillingness to consent

to a trial before a magistrate judge, the district court cannot

designate a magistrate judge to preside over the trial.

The question becomes, therefore, whether the jury selection

process can be parsed from other aspects of a trial, bringing the

process of selecting a jury within the "additional duties" clause

of section 636(b)(3). In Gomez v. United States, 490 U.S. 858, 109

S. Ct. 2237, 104 L. Ed. 2d 923 (1989), the United States Supreme

Court held that the "additional duties" clause does not encompass

the selection of a jury in a felony trial where the defendant has

refused to consent to the magistrate's exercise of power. The

Court emphasized that voir dire is a "critical stage of the

criminal proceeding," and specifically rejected the notion that

Congress did not consider voir dire to be part of trial. 490 U.S.

at 873, 109 S. Ct. at 2246-47. Thus, "[t]he absence of a specific

reference to jury selection in the statute, or indeed, in the

legislative history, persuades us that Congress did not intend the

additional duties clause to embrace this function." 490 U.S. at

875-76, 109 S. Ct. at 2248. In Peretz v. United States, 501 U.S.
7

923, 111 S. Ct. 2661, 115 L. Ed. 2d 808 (1991), the Supreme Court

held that the statute's "additional duties" clause constitutionally

permits a magistrate judge to supervise jury selection in a felony

trial where the parties state their consent. In so holding,

however, Peretz reaffirmed the reasoning in Gomez, and added that,

where consent is lacking, courts should be reluctant "to construe

the additional duties clause to include responsibilities of far

greater importance than the specified duties assigned to

magistrates." 501 U.S. at 933, 111 S. Ct. at 2667. The principles

adopted in these cases have been applied in this Circuit. See

Grassi v. United States, 937 F.2d 578, 579 (11th Cir. 1991) (per

curiam) (acknowledging that, in Gomez, the Supreme Court held that

magistrates are not authorized to preside over jury selection in

felony cases without a defendant's consent, but finding no error

since all parties consented to the magistrate's exercise of this

authority).

Relying on Gomez, two of our sister Circuits have held, we

think correctly, that a magistrate judge is not empowered to

conduct the voir dire in a civil jury trial over the objection of

one or more of the parties. The Seventh Circuit, in Olympia Hotels

Corp. v. Johnson Wax Development Corp., 908 F.2d 1363 (7th Cir.

1990), observed that section 636 does not expressly authorize

magistrate judges to try cases (civil or criminal), and added that

reading the "additional duties" clause to encompass some or all of

a jury trial would render meaningless other language in the

statute. Id. at 1368 (stating that there "would [not] be much

point to the elaborate provisions in section 636(c) for the conduct

of civil trials (including jury trials) by a magistrate with the

consent of both parties if a district judge could compel the
8

parties, against their wishes, to submit to a magistrate's

conducting vital stages in the trial, such as voir dire of the

jury"). Moreover, remarked the court, it is unsound to suggest

that voir dire is no more essential, and no less an opportunity for

delegation, than pre-trial discovery, which section 636 authorizes

magistrates to supervise without the parties' consent:

We are doubtful whether these are symmetrical

exercises of judicial power. Pretrial

discovery is conducted largely by the parties

on their own, and of course out of court;

judicial supervision is minimal. The voir

dire, in contrast, is a vital stage of every

jury trial. It is the jurors' first encounter

with the court; and the presence of the judge

who will preside at trial helps impress on the

jurors the gravity of their mission. It is

also the judge's best opportunity to "size up"

the jury, because it will probably be the only

occasion on which any of the juror's speak in

the judge's presence. Sizing up the jury is

important to the judge's rulings on

evidentiary questions, on motions for

mistrials and new trials, and on other matters

requiring an assessment of the particular

juror's ability and attentiveness; on these

questions we defer broadly to the trial

judge's judgment, in part because of his

superior opportunity to evaluate the jurors.

The trial is diminished when different

judicial officers preside at the voir dire and

at the presentation of evidence; the pretrial,

much less so.

Id. at 1369 (citation omitted). Subsequently, in Stockler v.

Garratt, 974 F.2d 730 (6th Cir. 1992), the Sixth Circuit agreed

with the reasoning in Olympia Hotel, finding that under the statute

"jury selection in a civil trial is not one of the additional

supervisory duties which can be delegated to a magistrate . . .

without the consent of the parties." Id. at 732. Thus, "in the

present case, it was error for the district court to allow a

magistrate to conduct voir dire over the objection of [the

plaintiff]." Id. These opinions reinforce what the statute should

make plain: Section 636 does not permit magistrate judges, under
9

the guise of the "additional duties" clause, to conduct the jury

selection portion of a civil trial unless the parties have given

their consent.

III.

Since there can be no quarrel with Thomas's claim that he

refused to give his express, voluntary consent in this case, we

turn to the issue of harmless error. Although the test for

harmless error varies somewhat with the context, generally it

connotes error that has little or no impact on the affected party's

substantive rights. See, e.g., Chapman v. California, 386 U.S. 18,

24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967) (holding that

certain federal constitutional errors may not require reversal of

a criminal conviction if shown to be harmless beyond a reasonable

doubt); Williams v. Singletary, 114 F.3d 177, 179-80 (11th Cir.

1997) (per curiam) (noting that a constitutional error at trial is

not harmless if it "'ha[s] substantial and injurious effect or

influence in determining the jury's verdict'") (citation omitted).

The Appellees' brief focuses entirely on this theory. In essence,

the Appellees contend that we need not reach the question of

whether a magistrate judge may preside over jury selection against

the wishes of a party, since any error in this case was harmless.

Specifically, "[T]homas does not offer any indication that he was

affected in any way by the fact that a magistrate presided over the

jury selection process. He points to no ruling by the magistrate

with which he was displeased, nor does he suggest how the jury

which was selected differed from the jury which might have been

selected if the district court judge had presided over the

process." Appellees' Brief, at 3-4.
10

This language appears to be culled directly from the Eleventh

Circuit's decision in United States v. Rodriguez-Suarez, 856 F.2d

135 (11th Cir. 1988), cert. denied, 488 U.S. 1045, 109 S. Ct. 875,

102 L. Ed. 998 (1989). In that case, the defendant was sentenced

for possession with intent to distribute or importation of more

than 500 grams of cocaine. On appeal, he argued, among other

things, that the district court's designation of a magistrate judge

to preside over jury selection violated 28 U.S.C. §636 and Article

III. The court did not reach the question of whether the

magistrate's supervision of the jury selection process was

improper, finding instead that any error which may have occurred

"was harmless beyond a reasonable doubt." The court explained that

the defendant did "not offer any indication that he was affected in

any way by the fact that a magistrate presided over the jury

selection process. He points to no ruling by the magistrate with

which he was displeased, nor does he suggest how the jury which was

selected differed from the jury which might have been selected if

the district court judge presided over the process." Id. at 139.

As support for its conclusion, the court cited Chapman.

Rodriguez-Suarez, however, was issued before the Supreme

Court's 1989 opinion in Gomez. That opinion squarely holds that a

magistrate judge may not conduct voir dire in a felony case where

the defendant interposes an objection to this practice. Of more

immediate significance, though, the opinion also disavows the

harmless error analysis applied by this Circuit in RodriguezSuarez. In Gomez, the United States argued that "any error . . .

was harmless because [defendants] allege no specific prejudice as

a result of the Magistrate's conducting the voir dire examination."

Indeed, observed the government, when the case returned to the
2

It is unclear from the text of Rodriguez-Suarez whether the

defendant in that case agreed to the magistrate's supervision of

the jury selection process. To the extent the defendant gave his

consent, of course, the opinion lends even less weight to the

Appellees' position here. See, e.g., Peretz.

11

district court, the defendants declined the judge's offer to review

the magistrate's rulings de novo, and did not challenge the

selection of any particular juror. The Supreme Court nevertheless

found reversible error, offering the following comments:

Among those basic fair trial rights that "'can

never be treated as harmless'" is a

defendant's "right to an impartial

adjudicator, be it judge or jury." Equally

basic is a defendant's right to have all

critical stages of a criminal trial conducted

by a person with jurisdiction to preside.

Thus harmless-error analysis does not apply in

a felony case in which, despite the

defendant's objection and without any

meaningful review by a district judge, an

officer exceeds his jurisdiction by selecting

a jury.

490 U.S. at 876 (citations omitted).

It could be suggested that the harmless error analysis in

Rodriguez-Suarez remains sound, even if the holding itself is no

longer good law with respect to felony cases. 2 But Gomez, while

arising in the criminal as opposed to civil context, clearly

signals that a magistrate's supervision of the voir dire process,

in the face of an objection from one of the parties, is not the

stuff of harmless error. Arguably the criminal context differs

somewhat, since the constitutional rights granted criminal

defendants are more expansive than those ordinarily accorded civil

litigants. The underlying point is the same, though: it can never

be genuinely "harmless" for a litigant, over his objection, 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.
12

Rodriguez-Suarez was issued before the Sixth and Seventh

Circuits, drawing largely on Gomez, applied the reasoning of that

opinion to civil lawsuits. In Olympia Hotel, the Seventh Circuit

rejected a harmless error argument in the context of a civil

lawsuit, stating that although the affected party made no effort to

show how it was harmed by the magistrate judge's actual handling of

the voir dire, "issues of entitlement to a particular kind of

tribunal are in general not subject to the harmless error rule."

908 F.2d at 1369. The Sixth Circuit in Stockler reached the same

conclusion, explaining "we do not believe that if a party in a

civil action explicitly objects to having a magistrate conduct voir

dire and the court consciously ignores this objection . . . it can

be considered harmless error." 974 F.2d at 733. Otherwise, said

the court, district judges and magistrates could "ignore the

dictates of the [statute] with impunity and force civil litigants

to submit to the jurisdiction of a magistrate without their consent

unless a party could demonstrate exactly how the trial would have

been different if an Article III judge, rather than the magistrate,

had conducted the voir dire." Id. Other courts have recognized

that aspects of the jury selection process may not lend themselves

to harmless error. See, e.g., United States v. Rowe , 106 F.3d

1226, 1229 (5th Cir. 1997) (finding "no need to show specific

prejudice from a voir dire procedure that cut off meaningful

responses to critical questions" in a case where the district

court's remarks may have chilled prospective jurors from truthfully

answering questions about possible bias). Indeed, there does not

appear to be any post-Gomez case law finding harmless error under

the circumstances presented in this appeal.
13

 The Appellees' theory of harmless error raises many

troublesome mechanical questions. To begin with, their reasoning

conceivably could be used to justify a magistrate judge's decision

to preside over not just jury selection, but an entire civil trial.

The jury selection process cannot be deemed merely an ancillary or

preliminary phase of a trial; it is every bit as much a part of the

trial as the opening statement, the examination of witnesses and

the charging of the jury. See Gomez, 490 U.S. at 874-75, 109 S.

Ct. at 2247 (stating that "[f]ar from an administrative empanelment

process, voir dire represents jurors' first introduction to the

substantive factual and legal issues in a case"); Olympia Hotel,

908 F.2d at 1369; see also FDIC v. LeGrand, 43 F.3d 163, 167 (5th

Cir. 1995) (distinguishing Gomez and its progeny, in the course of

upholding a magistrate's ability to enter a postjudgment discovery

order, by highlighting "the critical nature of voir dire and its

potentiality for affecting the outcome of a trial"). Moreover, it

is unclear precisely what kind of showing a party like Thomas must

make in order to establish that the error is "harmful." For the

Appellees' theory to make analytic sense, a party like Thomas

presumably must do more than simply articulate one or more rulings

by the magistrate judge with which he is "displeased." Rather, he

must show that somehow the overall result (or at least a discrete

ruling) would have been materially different if the challenged

portion of the case had been supervised by the district court.

This requirement imposes an inordinate, if not impossible, burden

on a non-consenting party, and misapprehends the nature of the harm

under these circumstances. 

In any event, as the Seventh Circuit suggests, there may well

be a real measure of harm to the entire trial process when a
14

district judge absents himself from the voir dire stage, at least

where the parties have not expressly and voluntarily indicated

their consent. The credibility evaluation required in response to

the argument that preemptory challenges have been exercised for

unlawful discriminatory reasons, see, e.g., United States v.

Tokars, 95 F.3d 1520 (11th Cir. 1996), cert. denied, — U.S. —, 117

S. Ct. 1282, 137 L. Ed. 2d 357 and — U.S. —, 117 S. Ct. 138 (1997),

may inform the district court's resolution of evidentiary issues

during the remainder of the trial. The converse may also be true;

a district court may need to rethink credibility determinations

made during jury selection in light of subsequent events suggesting

discriminatory intent. Similarly, having supervised the jury

selection process and observed the behavior of panel members during

the voir dire, the district court may be better positioned to

respond appropriately when issues concerning juror misconduct arise

during the course of trial. In these and other situations, the

district judge's absence from the voir dire conceivably may impact

his ability to preside effectively over other aspects of the trial.

See Gomez, 490 U.S. at 874-75, 109 S. Ct. at 2247-48 (indicating

"serious doubts" about the ability of district judges simply to

acquaint themselves with the jury selection process based on

written transcripts, since "no transcript can recapture the

atmosphere of the voir dire, which may persist throughout the

trial"). Admittedly these concerns may be relevant even where both

parties supply their consent. But the absence of mutual consent

suggests that at least one litigant, having contemplated the

advantages and disadvantages of this practice, is not prepared to

ignore his concerns for the trial in which he is a participant.

Cf. Peretz, 501 U.S. at 936 n.12, 111 S. Ct. at 2669 n.12
15

(reiterating that jury selection is an "important function" that

may warrant the participation of the district judge, but adding

that counsel can "sensibly balance these considerations against

other concerns in deciding whether to object to a magistrate's

supervision of voir dire"). More to the point, Congress, by

permitting district courts to assign to magistrate judges "all

proceedings in a jury or nonjury civil matter" with the consent of

the parties, has implicitly concluded that any detriment to the

trial process that might result if the presiding district judge

delegates jury selection to a magistrate is mitigated if the

parties agree to this procedure.

A useful analogy can be drawn by examining the Appellees'

harmless error argument in the context of the statutory limits on

federal subject matter jurisdiction under Article III. Suppose a

district court found, despite a defendant's objection, that it

could exercise diversity jurisdiction over a civil lawsuit even

though it recognized that the amount in controversy fell below the

statutory minimum set by 28 U.S.C. §1332. There is no case law in

this, or any other, Circuit suggesting that the district court's

jurisdictional ruling could be overlooked as "harmless" on appeal

simply upon a showing that, in all other respects, the district

court's resolution of the case was thoroughly error-free. The

essence of the harm in this situation is the fact that the lawsuit

was entertained by a tribunal that, according to Congress, had no

power to entertain the dispute. The same reasoning applies here;

the harm to Appellant Thomas flows not from the adequacy or

inadequacy of the magistrate judge's handling of the jury selection

process, but rather from the fact that Congress did not afford

magistrate judges the power to preside over any aspect of the trial
3

Having concluded that the magistrate judge

exceeded his statutorily-created authority by

conducting jury selection in this case without the

consent of the parties, we need not and do not address

any constitutional implications of this practice.

16

of a civil lawsuit without the express consent of the parties (and

certainly not in the face of repeated and unequivocal objection

from a plaintiff). The statute expressly permits litigants like

Thomas to insist on having an entire trial take place before a

United States District Judge; adopting the Appellees' harmless

error argument saps this statutory language of meaning, and

significantly undermines the right of a federal court litigant to

have his case tried before a judge who has been appointed by the

President and is afforded the constitutional protection of Article

III.3

 Consequently, the 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 statutory authority to undertake the task

assigned to him by the district court.

For all of the foregoing reasons, the district court's denial

of the Appellant's new trial motion must be and is REVERSED. The

judgment is VACATED, and the case is REMANDED for further

proceedings consistent with this opinion.
17