UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-40627

JON MICHAEL WITHROW,

Plaintiff-Appellant,

versus

JOSEPH C. ROELL; JERRY BALLARD; PETRA GARIBAY; J. REAGAN, M.D.,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________________________ April 8, 2002

Before JOLLY, JONES, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

This matter having been referre d to a magistrate judge

pursuant to 28 U.S.C. § 636(c) (on referral and upon parties’

consent

, may try civil case and enter judgment), primarily at issue

is whether, when all parties fail to consent pre-trial, but trial

is held and judgment entered by the magistrate judge, post-judgment

consent cures t he pre-trial failure. Defendants contend: pretrial, all parties consented; alternatively, their post-judgment

consent confers jurisdiction on the magistrate judge. V ACATED AND

REMANDED

.2 I.

In 1997, Jon Michael Withrow, pro se , filed this 42 U.S.C. §

1983 action, claiming members of his prison’s medical staff (Joseph

Roell, Jerry Ballard, Danny Knutson, Petra Garibay, and Dr. James

Reagan) acted deliberately indifferently to his medical needs, in

violation of, inter alia

, his Eighth Amendme nt rights. Withrow

gave written consent to trial and entry of judgment by a magistrate

judge.

Therefore, pursuant to 28 U.S.C. § 636(c), the district judge

referred the action to a magistrate judge, but reminded that all

d efendants had to also consent to such participation by a

magistrate judge (consent). Only Dr. Regan did so (written).

In early 1998, the magistrate judge dismissed all claims

except concernin g the Eighth Amendment and dismissed Ballard.

(Ballard’s dismissal is reflected in the final judgment entered 16

May 2000, from which this appeal is taken.) In March 1999, the

magistrate judge denied summary judgment for the remaining

defendants. Pre-trial, Withrow settled with Knutson; h e was

dismissed.

The remaining parties proceeded to trial before the magistrate

judge, with a jury finding for defendants. The magistrate judge

entered final judgment in May 2000, and Withrow timely appealed.

But, sua sponte

, our court questioned whet her the requisite

consent had been given by all parties and ordered a limited remand3

f or “the district court [to] determine whether the parties

consented

... and, if so, whether the consents were oral or

written”. Withrow v. Roell , No. 00-40627, at 2 (5th Cir. 21 Nov.

2000) (unpublished). Our court retained jurisdiction. Id

. See,

e.g., Wheeler v. City of Columbus, Miss.

, 686 F.2d 1144, 1154 (5th

Cir. 1982) (retaining jurisdiction pending district court

compliance with remand).

On remand, the remaining defendants (Roell, Garibay, and Dr.

Reagan (Defendants)) gave written consent. In a report and

recommendation, the magistrate judge stated: pre-trial, Roell and

Garibay never consented; and their post-judgment consent did not

cure the jurisdictional defect. W ithrow v. Roell

, No. C-97-256, at

4 & n.3 (S.D. Tex. 8 Ja n. 2001) (unpublished). Over Defendants’

objections, the district court adop ted the report and

recommendation. Withrow v. Roell , No. C-97-256 (S.D. Tex. 1 Mar.

2001) (unpublished). Defendants’ motion to reconsider was denied.

II.

“ Upon the consent of the parties

, a

... United States

magistrate [judge]

... may conduct any or all proceedings in a jury

or nonjury civil matter and order the entry of judgment ... when

specially designated to exercise such jurisdiction by the district

court.” 28 U.S.C. § 636(c)(1) (emphasis added); s ee F ED

. R. C IV

. P.

73 (procedures for consent and referral to a magistrate judge);

F ED

. R. C IV

. P. A PPENDIX OF F ORMS

, Officia l Form 33 (“Notice of4

Availability of Magistrate Judge to Exercise Jurisdiction”); id

.,

Official Form 34 (“Consent to Exercise of Jurisdiction by a United

States Magistrate Judge”). At issue is whether, pre-trial,

Defendants consented ; and, if they did not, whether their postjudgment consent is effective.

When, pursuant to § 636(c)(1), the magistrate judge enters

final judgment, lack of consent and defects in the order of

reference are jurisdictional errors; as such, they cannot be

waived. S ee Hill v. City of Seven Points

, 230 F.3d 167, 168-69

(5th Cir. 2000); Mendes Jr. Int’l Co. v. M/V Sokai Maru , 978 F.2d

920, 923-24 (5th Cir. 1992); EEOC v. W. La. Health Servs., Inc

. ,

959 F.2d 1277, 1281-82 & nn.3 & 4 (5th Cir. 1992). In keeping with

this, § 636(c) consent must be express; it cannot be implied by the

parties’ conduct. W

. La. Health Servs.

, 959 F.2d at 1281; Trufant

v. Autocon, Inc.

, 729 F.2d 308, 309 (5th Cir. 1984) (“consent must

be explicit, and will not be casually inferred from the conduct of

the parties”).

A.

P re-trial, only Dr. Regan filed written consent. Defendant s

contend Roell and Garibay, pre-trial, gave consent orally. Whether

they did involves a finding of fact, reviewed only for clear error.

E.g.

, Walker v. City of Mesquite

, 169 F.3d 973, 9 82 (5th Cir.

1999), cert. denied , 528 U.S. 1131 (2000).5

To show Roell and Garibay’s consent, Defendants p oint to an

April 1999 teleconference, with appearances by Withrow and

Defendants’ counsel , at which the magistrate judge stated to the

latter: “Also, if you talk to Mr. Knutson [defendant who settled

pre-trial with Withrow], ... would you tell him ... that he needs

to let us know whether he’s going to consent to my jurisdiction as

well, because all defendants need t o consent....” Defendants’

counsel responded: “Good point, yes, Your Honor”. According to

Defendants, the import of this colloquy is that the magistrate

judge “ thereby stated ... she thought Roell, Garibay, and Dr.

Reagan had all consented” and Defen dants’ counsel confirmed that

assumption.

As further evidence of Roell and Garibay’s claimed pre-trial

consent, Defendants cite another magistrate judge teleconference

(July 1999) . Withrow and Defendants’ counsel appeared, together

with Knutson’s counsel. The magistrate judge stated to the latter:

“[Y] our client [Knutson] has the right to not consent ... and I

don’t kno w what your position is on that.... [A]ll of the other

parties have consented....” According to Defendants, these otherparties-had-consented comments were correct.

Finally, Defendants cite to the magistrate judge’s statement

to the jury: “In ... any civil case in which [the] parties consent

to my jurisdiction, I do have civil jurisdiction to hear civil jury

trials....”6

Obviously, through none of these relied upon stat ements did

Roell and Garibay consent. At best, they represent only the

magistrate jud ge’s a ssumption that they had. On remand, the

magistrate judge found she had been mistaken in her assumption that

Roell and Garibay had executed consent forms

. W ithrow v. Roell

,

No. C-97-256, at 2 & n.2 (S.D. Tex. 8 Jan. 2001) (unpublished).

Accordingly, the basis of her assumption had been that written, not

oral, consent had been given.

In short, there is no evidence in the record of pre-trial

consent by all parties. The corresponding finding is not clearly

erroneous.

B.

Accordingly, we must determine whether, as the district court

held, the post-judgment consent was not effective. We review this

jurisdictional question de novo

. E.g.

, United States v. BustosUseche , 273 F.3d 622, 626-27 (5th Cir. 2001).

1.

Notwithstanding the plain language of § 636(c), discussed

infra

, Defendants note the Seventh and Eleventh Circuits have

repeatedly held post-judgment consent effective. S ee Rembert v.

Apfel

, 213 F.3d 1331, 1335 n.1 (11th Cir. 2000) (“Parties can

consent even after judgment.”); Drake v. Minn. Mineral & Mfg. Co.

,

134 F.3d 878, 883 (7th Cir. 1998) (consent post-appellate oral

argument sufficient); Gen. Trading, Inc. v. Yale Materials Handling7

Corp.

, 119 F.3d 1485, 1496-97 (11th Cir. 1997) (post-judgment

consent effected by parties’ withdrawing their new-trial motion and

thereby accepting magistrate judge’s judgment; such consent

effectiv e), c ert. denied

, 523 U.S. 1055 (1998); Smith v. Shawnee

Library Sys.

, 60 F.3d 317, 320-21 (7th Cir. 1995) (post-ju dgment

consent unequivocal representation magistrate judge acting with

parties’ consent); King v. Ionization Int’l, Inc. , 825 F.2d 1180,

1185 (7th Cir. 1987) (post-judgme nt consent sufficient where

parties executed consent several weeks after entry of order

appealed).

The Ninth Circuit, however, has held otherwise. S ee Hajek v.

Burlington N. R.R. Co.

, 186 F.3d 1105, 1108 (9th Cir. 1999)

(consent not effective where made in appellate brief). The

district court cited Hajek in holding the post-judgment consent did

not “cure the jurisdictional defect”. W ithrow v. Roell

, No. C-97-

256 (S.D. Tex. 1 Mar. 2001) (unpublished).

Our court’s primary precedent is found in Archie v. Christian

,

808 F.2d 1132 (5th Cir. 1987) (en banc), where a prisoner’s civil

rights action had been referred to a magistrate judge. Although

trial was held without objection by plaintiff, id

. at 1133-34,

defendants did object. They ceased doing so, however, upon the

jury’s returning a favorable verdict. Id . at 1134.

By report and recommendation, the magistrate judge in Archie

recommended that defend ants’ objection be overruled because the8

referral was proper under 2 8 U.S.C. § 636(b)

. Unlike § 636(c),

which, as noted, allows a magistrate judge, upon a district

judge’s referral and the parties’ consent, to enter final judgment

in a civil action, § 636(b) only authorizes a magistrate judge,

upon referral, to hear and determine certain pre-trial matters and

to conduct an evidentiary hearing and then submit a recommendation

to the district judge for disposition of an action. Accordingly,

the magistrate judge recommended that the district court adopt the

jury’s findings. I d

. The district court did so and entered final

judgment. Id

.

At issue before our en banc court was whether a trial before

a magistrate judge without all parties’ consent, followed by a

district judge’s entry of judgment, was a procedural error, subject

to waiver, or was instead a jurisdictional error. Our court held

that, although the parties had not consented, this did not deprive

the district judge of jurisdiction to enter the judgment

. Id . at

1135. But, our court noted: had the appeal challenged this

defective, non-jurisdictional procedure, it would have been

reversible error. I d

. In other words, the failure to challenge it

resulted in the issue’s not being before the en banc court.

In considering the necessity for consent, our court recognized

that § 636(b) does not authorize referral of prisoner litigation to

a magistrate judge for a jury trial. I d .; see Ford v. Estelle

, 740

F.2d 374, 380 (5th Cir. 1984). Accordingly, our court observed9

that, because § 636(b) was unavailable, § 636(c) was the only means

by which the action could be referred. Id

.

Concerning § 636(c), our court issued the following directive:

[I]n our circuit, no jury trial of this kind

can be conducted by a magistrate [judge]

without the consent of all parties, given in

writing and filed before trial commences

.... [I]n the exercise of our supervisory powers

, we direct that before commencing ... trial in

any c ivil case in which a magistrate [judge]

is to preside pursuant to

... § 636(c),

... he

shall inquire on the record of each party

whether he has filed consent to [his]

presiding and shall receive an affirmative

answer from each on the record before

proceeding further.

Id . at 1137 (emphasis added).

At first glance, Archie’s requiring pre-trial consent appears

to control the outcome in the case at hand; here, the consent was

post-judgment. This directive, however, is d ictum

. Restated, and

as discussed supra , our court determined that the error in Archie

was non-jurisdictional and had been waived; therefore, our court’s

d i rective as to when and how consent must be given was not

necessary to the holding.

2.

Accordingly, whether, pursuant to § 636(c), post-judgment

consent is effective is a question of first impression for our

circuit. Statutory interpretation begins, of course, “with the

plain language of the statute”. Moosa v. INS , 171 F.3d 994, 1008

(5th Cir. 1999). “When the language [of the statute itself] is10

plain we must abide by it; we may depart from its meaning only to

avoid a result so bizarre that Congress could not have intended

it.” I d

. (alteration in ori ginal; internal quotation marks

omitted).

Our court’s directive in A rchie, that consent be pre-trial,

adheres to the plain language of § 636(c)(1). The statute reads,

in part: “ U

pon the consent of the parties, a

... United States

magistrate [judge]

... may conduct any or all proceedings in a

nonjury civil matter and order the entry of judgment in the

case....” 28 U.S.C. § 636(c)(1) (emphasis added). The use of

“upon” and “may conduct” compels the conclusion that the statute

requires consent being given before a magistrate judge can act

pursuant to § 636(c). The timing of the consent equates with a

condition precedent to the magistrate judge’s acting. In other

words, only after the parties give consent is a magistrate judge

t hen vested with jurisdiction to act. Post-judgment consent is

contrary to the scheme established by this plain language.

Because the statute’s language is plain, and its application

does not le ad to absurd results, we need not look to its

legislative history. In any event, that history supports this

construction. When Congress amended § 636 in 1979 to allow

magistrate judges, upon consent of the parties and referral by a

district judge, to handle dispositive matters, “[t]he Bill clearly

require[d] the voluntary consent of the parties as a prerequisite11

to a magistrate[] [judge’s] exercise of the new jurisdiction”. S.

R EP

. N O

. 96-74, at 5 (1979), reprinted in 1979 U.S.C.C.A.N. 1469,

1473 (emphasis added). Consent being a “prerequisite to ... [the]

exercise of ... jurisdiction” compels the conclusion that it must

come before, and not after, the magist rate judge conducts the

proceedings and enters final judgment.

A common sense reason for this being required, as reflected in

Archie’s directive, is that, if consent is allowed post-judgment,

or even post-trial but pre-judgment, a party can withhold consent,

hope its lack is not noticed, and, once the verdict is known: (1)

if it is favorable, consent; or (2) if it is not favorable, bring

the lack of consent to the attention of either the district court

or the appellate court, in which case that party will be entitled

to a new trial. Obviously, the potential for such abuse must be

removed.

Requiring pre-trial consent does so. The Seventh Circuit in

Shawnee Library recognized these gamesmanship concerns, but, being

bound by its circuit precedent, it st ated: “Rather than write a

treatise on game theory, however, we simply note that King [ v.

Ionization, Int’l

, 825 F.2d 1180, 1185 (7th Cir. 1987)] controls”.

60 F.3d at 321.

A further reason why we must conclude that the Seventh and

Eleventh Circuits’ decisions on this issue are contrary to the

statute is because their reasoning is foreclosed by our earlier-12

discussed circuit precedent that consent cannot be implied. The

above-referenced King is the seminal case holding post- judgment

consent effective. The earlier-cited Seventh and Eleventh Circuit

decisions, with the exception of Drake

, all rely on King

. (Without

citing authority, Drake held post-appellate-oral-argument consent

effective, but its rationale that the post-judgment c onsents

“ indicate that [the parties] consented to trial by magistrate

judge” is consistent with the King rationale, discussed below. S ee

Drake , 134 F.3d at 883 (emphasis added).)

King reasoned the belated consent is effective because there,

the parties’ post-judgmen t statement that the proceedings before

the magistrate judge were with their consent was “an unequivocal

representati on that the magistrate was acting with the parties’

consent”. 825 F.2d at 1185. Such reasoning, however, necessarily

infers from the parties’ post-trial statement that there was pretrial consent

. In other words, because the parties, post-judgment,

state the earlier proceedings wer e with their consent, that must

mean the proceedings occurred with their consent. Again, this is

simply an inference from the parties’ post-trial conduct.

But, as stated, our court has held that consent may not be

inferred from the parties’ actions

— in this instance, the postjudgment consent. S ee W. La. Health Servs. , 959 F.2d at 1281.

Accordingly, because the King reasoning is based upon an inference

of consent, it is inconsistent with our court’s § 636(c) precedent.13

Our holding tha t consent must be pre-trial requires,

unfortunately, that this matter be re-tried at the expense of the

parties and the judicial system. But, even if we were to adopt the

Seventh and Eleventh Circuit’s approach, this outcome could not be

avoided in all cases. For example, had the verdict been favorable

to Withrow, we doubt Defendants would have given consent postjudgment. Under that scenario, we still would be required to

remand for a new trial.

III.

For these reasons, consent of all the parties must be given

prior to a § 636(c) trial commencing. Our en banc court in A rchie

,

with the opinion authored by the late Judge Thomas Gibbs Gee, noted

that § 636 “requires the consent of all parties, incorporating

explicit provisions safeguarding the voluntariness of that consent;

and rules, both federal and local, are in place to insure that no

dragooning takes place ”. 808 F.2d at 1136 (emphasis added).

Certainly, there can be “no dragooning”; likewise, there can be no

post-judgment consent.

In her report and rec ommendation on remand, the magistrate

judge noted our court in Archie had “attempted to avoid problems

such as the one which occurred here by ordering, in the court’s

s upervisory capacity, that before a trial by a magistrate judge

commences, the magistrate shall confirm the consent of all parties

on the record”. W ithrow v. Roell

, No. C-97-256, at 4 n.3 (S.D.14

Tex. 8 Jan. 2001) (unpublished). To her credit, the magistrate

judge sincerely regretted, and apologized for, not having done so.

Id . at 4 n.4.

Hoping to prevent such mistakes in the future, we repeat our

court’s en banc directive in Archie :

[I]n our circuit, no jury trial of this kind

can be conducted by a magistrate [judge]

without th e consent of all parties, g iven in

writing and filed before trial commences

.... [I]n the exercise of our supervisory powers

, we direct that before commencing ... trial in

any civi l case in which a magistrate [judge]

is to preside pursuant to

... § 636(c),

... he

shall inquire on the record of e a ch party

whether he has filed consent to the magistrate

[judge’s] presiding and shall receive an

affirmative answer from each on the record

before proceeding further

.

Id. at 1137 (emphasis added).

For the foregoing reasons, the judgment is VACATED , and this

matter is REMANDED for further proceedings, consistent with this

opinion, against defendants Joseph C. Roell, Jerry Ballard, Petra

Garibay, and Dr. James Reagan.

VACATED AND REMANDED