William H. Rehnquist: We'll hear argument first this morning in Number 02-69, Joseph Roell, Petra Garibay, and James Reagan versus John Michael Withrow. Ms. Eskow.
Lisa R. Eskow: Good morning, Mr. Chief Justice, and may it please the Court: When parties knowingly and voluntarily proceed to trial before a magistrate judge, they consent within the meaning of 28 U.S.C. section 636(c)(1). The plain language of the statute confers case-dispositive authority on full-time magistrate judges upon the consent of the parties. Congress did not specify in section 636 what form that consent should take. It did not include adjectives such as express or written, and the omission of such qualifiers is significant.
William H. Rehnquist: How about Rule 73(b)?
Lisa R. Eskow: Yes, Your Honor, Mr. Chief Justice, Rule 73 does require that the parties execute a consent form filed with the court, and it did not occur in this case. However, a violation of that rule did not divest the magistrate judge of authority to preside over the case, and that is because the authority emanates from the statute, specifically the requirement that the consent be voluntary in 636(c)(1), and although it was error not to follow the Federal Rule of Civil Procedure or the local rules for the Southern District of Texas, which may have had writing requirements, these rules were related to procedural safeguards to protect the voluntariness of the parties. They are not the consent requirement themselves, and it is the voluntariness of the agreement that gives a magistrate judge authority to preside, not compliance with technicalities of statutory referral procedures.
Anthony M. Kennedy: Do you agree that the consent has to precede the action of the magistrate?
Lisa R. Eskow: Yes, Justice Stevens, we do.
Anthony M. Kennedy: So that there had to have been consent before he took any... the magistrate took any action in the case?
Lisa R. Eskow: Any case-dispositive actions under section 636(c)-- Yes. --yes, that would have to be with the consent of the parties.
Anthony M. Kennedy: So that an hour into the trial, somebody hands counsel a note that says, Your Honor, we've made a mistake, our office said we can't consent to this, the trial, the magistrate should say, too late, you've appeared, you've been deemed to have given consent?
Lisa R. Eskow: Yes. Yes, Justice Kennedy.
John Paul Stevens: So it's like double jeopardy when this first witness is sworn, or something like that?
Lisa R. Eskow: Well, certainly, consent in our view is predicated on two things, and first it's notice that the magistrate judge is proceeding in this case-dispositive authority, and notice that the party has an opportunity to decline to consent to that procedure.
Anthony M. Kennedy: So the first dispositive motion that he rules on?
Lisa R. Eskow: Certainly, that would be a signal, and yes, if a party did not object at that point, after being on notice that the magistrate judge was exercising case-dispositive authority.
Anthony M. Kennedy: Well, then, we need a whole jurisprudence parallel to the simple rules that you all didn't follow.
Lisa R. Eskow: I'm sorry, Your Honor? The--
Anthony M. Kennedy: We need a whole jurisprudence that's parallel to the simple rule. The... the object of the rule was structural, in a sense. It was to bring home to the parties that they had a choice, to make them consider the choice, to make sure that the choice was not in any way forced on them or suggested to them, and it seems to me that your rule defeats all of that.
Lisa R. Eskow: --We would respectfully disagree, Justice Kennedy. Absolutely, the rule is designed to protect the voluntariness of the parties' consent and to ensure that they aren't coerced into agreeing to a procedure and into relinquishing their right to an Article III judge when it's not something that they voluntarily choose to do, but those are merely the procedures to protect the consent. The consent itself is the predicate for the exercise of the authority, and although there was a departure from the local rules, and in this instance, it was not merely on the part of two defendants who neglected to file a form but on the part of plaintiff Withrow, who neglected to obtain all parties' consent, as was his responsibility under the local rules--
Ruth Bader Ginsburg: Was he represented at the trial, Withrow?
Lisa R. Eskow: --No, Justice Ginsburg. He... he was pro... he was pro se at that time.
Anthony M. Kennedy: So... so your rule is that a pro se defendant has to tell the State of Texas how to comply with the Federal rules?
Lisa R. Eskow: No, Justice Kennedy. Certainly, that was just an indication of the various mishaps that can happen because of the nature of the varying local requirements that exist in different districts. You also had in this instance a district judge who referred the case to the magistrate before the defendants had even been served, much less had an opportunity to consent, and the magistrate judge did not comply with local practice of confirming on the record all parties' consent--
Ruth Bader Ginsburg: But she was... she--
William H. Rehnquist: --Well, can... can local rules in one district produce a different result than another district which didn't have that local review with respect to this sort of consent?
Lisa R. Eskow: --Absolutely not, Mr. Chief Justice. In... in this circumstance, certainly that authority emanates from the statute itself, and a local rule can't determine the authority of the magistrate judge. That would apply nationally, and in every court, but--
Ruth Bader Ginsburg: This local rule did require express... it required consent in writing before the... the proceeding, didn't it?
Lisa R. Eskow: --Yes, before even the case could be referred the local requirement existed, but that was departed from both by the clerk, who provided a form to the district judge before it had been signed by the parties, and by the district judge himself, who referred the case without waiting for all parties' consent, or even all parties' service.
Ruth Bader Ginsburg: Do... do we know how this came about, because the magistrate, she was certainly aware of it.
Lisa R. Eskow: Absolutely.
Ruth Bader Ginsburg: And she asked the State, do you consent, and whoever was representing the State said, well, I have no authority to do that today.
Lisa R. Eskow: That was at a preliminary proceeding, Justice Ginsburg, a Spears hearing, that was determine whether or not plaintiff Withrow's claim should even be permitted to proceed, or whether he should be permitted to proceed in forma pauperis and whether service would be affected. No defendant had been served at that point. It was an evaluation under section 1915(a) of whether this prisoner suit should be allowed to proceed, and at that time there was a representative of the Attorney General's Office present at the hearing, merely in an informational capacity, but none of the defendants had been served, and they were not yet represented, so she indicated at that hearing that she could not consent on their behalf. Later on, after that hearing, when it was determined that some claims could proceed, there was service on the defendants, and that was effected on a different Attorney General, who in turn assigned it to the Attorney General... the Assistant Attorney General who did represent the defendants at trial and filed answers on their behalf, and... and that attorney did neglect to file the required forms. However, at the time of service, the case had already been referred, and he did not go back to confirm whether previously the forms were on file, but everyone in this proceeding was assuming that all the parties consented because the case was already before the magistrate judge, and everyone was acting in accordance with a section 636(c)(1) referral. Indeed, in the referral order that the district judge signed that sent the case to the magistrate judge, it specified that if the defendants did not consent, they merely needed to indicate that to the court and it would go back to the district judge, so certainly there was an awareness that the case was proceeding pursuant to the dispositive, case-dispositive provisions in subsection (c).
Ruth Bader Ginsburg: And one of the defendants did put in a form.
Lisa R. Eskow: Yes, who was represented by separate counsel, and that counsel did follow the instructions from the court and... and did comply, and that was not complied with by the attorney who was representing the two defendants at trial in this case, but everything that that attorney did was consistent with and demonstrated the parties' consent in this instance, including filing a dispositive motion with the... the court that the magistrate judge could grant only if she had authority under subsection (c), and only if she had the parties' consent, and when she denied that motion and made that adverse ruling, that she could only do with the parties' consent, these defendants never once objected, they did not dispute that they consented, instead, they asked her to reconsider the merits of their summary judgment motion.
Sandra Day O'Connor: Ms. Eskow, the statute, 636(c)(2), deals with the clerk of the court shall notify the parties of the availability of a magistrate, and then it goes on to say, the decision of the parties shall be communicated to the clerk of the court. Does the use of communicated to the clerk suggest that it be express? What is that requirement? How does that enter in?
Lisa R. Eskow: Certainly, communicated to... to the clerk suggests that... that the clerk will be informed of the decision. When the parties filed a dispositive motion that invoked, affirmatively invoked the case-dispositive authority, that was before the clerk and would have notified the clerk that they were--
Sandra Day O'Connor: And satisfied that requirement?
Lisa R. Eskow: --It would, and moreover, it's subsection (1) that discusses the authority of the magistrate judge--
Sandra Day O'Connor: Yes.
Lisa R. Eskow: --and speaks only of consent that is the provision of the statute in which Congress gave this grant of authority.
Sandra Day O'Connor: Yes.
Lisa R. Eskow: Subsection (2) is a procedural mechanism for ensuring the voluntariness, the requirement under subsection (1).
Sandra Day O'Connor: And was it complied with here fully, do you think--
Lisa R. Eskow: With subsection--
Sandra Day O'Connor: --subsection (2)?
Lisa R. Eskow: --Subsection (2), in this instance, no. Because of the local procedures that are requested the district courts develop under subsection (2), they were not complied with by any of the parties or any of the judges in this case, so there was a departure, but because there was full compliance of subsection (1), in that the parties all voluntarily agreed, absolutely there was authority to proceed.
David H. Souter: May I just ask you a technical question about the local rule? I... as I recall, wherever it was referred to, it was referred to not as rule, but as order. Does everybody in the case agree that whatever this order was, it had the status of a local rule for purposes of this case?
Lisa R. Eskow: Yes, Justice Souter. That is not disputed by any of the parties. That is just the mechanism by which the Southern District of Texas implemented it as a general order. It is printed in writing, it is signed by the judges of the court, the chief judge of the court, and it's something that is respected by all parties as being the local rule in that case. Congress' intent not to require any specified form of consent is evidenced by the language in (c)(1) itself, where the first provision is... for full-time magistrate judges does not require any form of written consent, it merely speaks to consent. In the very next sentence of the statute, which is on page 3a of the appendix in the petitioners' brief on the merits, the statute specifies that for part-time magistrate judges, there has to be a specific written request by the parties in order for the magistrate judge to exercise case-dispositive authority, and the fact that Congress in the very next sentence chose to insert and to require a written consent indicates that Congress did not intend to make the same sort of requirement with respect to full-time magistrate judges, because that adjective is... is lacking, and the Court should not engraft terms onto the statute that Congress chose not to include.
Ruth Bader Ginsburg: I take it from your argument this morning you would say that these defendants... suppose they lost. Suppose the plaintiff won. They could not then say, magistrate, you never had any authority because we did not give you in advance written permission to proceed. They could not... they would be bound. Is that your view?
Lisa R. Eskow: Yes, Justice Ginsburg, if the court were to adopt an inferred consent rule and... and determine consent based on the parties' voluntary conduct beforehand, and there was notice, and there was a clear indication of conforming to 636(c)--
Ruth Bader Ginsburg: But I'm not asking the question hypothetically. I'm asking, in this case.
Lisa R. Eskow: --In this case? Yes, my understanding is that no party had... had even thought, it had not crossed any party's mind that consent was lacking and that all parties were intending to be bound by the judgment.
Ruth Bader Ginsburg: But if the defendants, having lost instead of having prevailed, then said, aha, now we can get out of it because we never formalized our consent, you... you are saying that they could not have... that on these, on the facts of this case they could not have bowed out if they lost?
Lisa R. Eskow: Yes, Your Honor. We believe that that is the... the correct approach. Certainly, in the Seventh and Eleventh Circuits, where those courts require express post judgment consent separate and apart from looking at the underlying conduct, in those situations there is not an effective judgment if the parties refuse to put express consent on the record after the fact. That is certainly one approach to the statute. It's one approach that we believe is valid, because requiring that express consent at some point in the proceedings to confirm the earlier conduct is something that... that would protect the voluntariness concerns Congress had, but we don't believe that it's required in... in terms of the authority, that the authority comes from the voluntary agreement that's evidenced from how the parties proceeded, and certainly, if the Court wished to avoid the gaming concerns that the Fifth Circuit expressed under the type of post judgment consent rule that the Seventh and Eleventh Circuits adopted, then adopting an inferred consent rule would eliminate that by requiring parties to be bound by the bargain they struck.
Sandra Day O'Connor: Ms. Eskow, I take it all of the courts of appeals that have addressed this question have found express consent required?
Lisa R. Eskow: Yes, Justice O'Connor, that's absolutely true, but there's nothing in the statute that makes that requirement. Indeed, another provision of the Federal Magistrates Act, the provision governing misdemeanor trial authority, that's in 18 U.S.C. section 3401(b), requires not... it used to require written consent. In 1996, Congress amended the act to require only oral consent, but it specified that it could be oral or written, but that it needed to be express. The words, expressly consents, are in that provision, and certainly neither the word express, nor the word oral or written, exist in 636(c)(1).
John Paul Stevens: You suggested earlier that the second sentence of... of (c)... of (c)(1) contains the written... the writing request, whereas the first second... sentence doesn't.
Lisa R. Eskow: Yes.
John Paul Stevens: But the writing request in the second sentence is a request for the... the magistrate to participate, rather than the consent itself. It says, upon the consent of the parties pursuant to this specific written request. There's no requirement of writing with respect to the request in the first sentence, but that doesn't necessarily disavow the need for writing in the... to evidence the consent itself.
Lisa R. Eskow: We would read the statute differently, Justice Stevens, that the fact that it says, upon the consent of the parties pursuant to their specific request, would indicate that the consent of the parties has to be pursuant to their written request.
John Paul Stevens: That's right, but there doesn't have to be a written request with respect to the first sentence. There just has to be... if one reads it the other... the way your opponent does it, there just has to be a writing evidencing the consent itself.
Lisa R. Eskow: We would respectfully disagree.
John Paul Stevens: Yes.
Lisa R. Eskow: That the writing requirement only exists with respect to the part-time magistrate judge, and that that goes to the consent as well.
John Paul Stevens: That's not expressed. I'm saying, that's not expressed, but I'm just saying that it's not... it's not... the two... the writing requirement that is referred to in the second sentence is not an exact parallel of what they contend the... the writing requirement is in the first sentence.
Lisa R. Eskow: Well, certainly respondent has a variety of writing requirements, and one that they deem to be dictated by the local rules as well, which is something that's not spoken to in subsection (c)(1). Certainly, the... the statute in (c)(1) imposes no sort of express or written requirement with respect to consent or with respect to requesting a magistrate judge--
John Paul Stevens: Well, of course, that's the issue.
Lisa R. Eskow: --in any form.
John Paul Stevens: Yes, that's the issue.
Lisa R. Eskow: And the absence of that we believe is significant because... in these other provisions because in the misdemeanor trial authority, it requires consent, and is probably the closest analogy to the trial authority in subsection (c)(1). There is both express consent required, and it specifies that it can be oral or written.
Stephen G. Breyer: The obvious reading of a statute like this I would think, and you tell me why I'm not right, but it just means consent in such form as the judicial conference or local rules provide. I mean, Congress is perfectly aware in these procedural statutes that judges have rulemaking authority and that they elaborate the statute through rule.
Lisa R. Eskow: Certainly, Congress is aware of the common sense meaning of consent, and in substance--
Stephen G. Breyer: Well, it's also aware that they're writing a statute for the judiciary that's implemented through rule, and where you have a term like this, that is implemented through rule, that everybody would think it would be implemented through rule, the word consent in the statute means consent in the form that the rules provide. Does Congress have to add that every time in... I mean, isn't it obvious? Or perhaps it isn't, but why isn't it?
Lisa R. Eskow: --We don't believe it's obvious, Justice Breyer, because if it was the form of the local rules, or the form of consent prescribed by local rules that determined the authority, you would have magistrate judges with different authority in a variety of jurisdictions across the country.
Stephen G. Breyer: So what's wrong with that? I mean, if the local rule is okay, what's wrong with that, I mean, if that's what the rule authorities want to do?
Lisa R. Eskow: Certainly it may be a good idea as a matter of policy--
Stephen G. Breyer: No, no, it's a matter of law.
Lisa R. Eskow: --to require.
Stephen G. Breyer: It's a matter of law. Very often, Congress legislates, and they use words like consent, and so forth, and those are implemented. I don't want to just repeat the point. I want to be... I want to see what you can--
Lisa R. Eskow: Certainly, our view is that because Congress specified the requirements for local rules in a separate subsection than the consent requirement itself, it was anticipating that there would be some need to protect the voluntariness, but that it is the voluntariness that's the cornerstone, and that it would be a matter of administrative discretion on the local level.
Stephen G. Breyer: --Assume you lose on that, just for the sake of argument.
Lisa R. Eskow: Yes.
Stephen G. Breyer: Then I guess the other question is whether you can cure the violation by not objecting on appeal.
Lisa R. Eskow: That certainly is the question.
Stephen G. Breyer: And what is your answer to that?
Lisa R. Eskow: The... yes, absolutely.
Stephen G. Breyer: Because?
Lisa R. Eskow: Because the underlying voluntary consent is there through the parties' conduct, and to the extent the court construes the statute--
Stephen G. Breyer: No, no, I'm saying, suppose that there is not consent. Suppose I were to believe that the word consent in the statute picks up the method of the rule, at least it rules out implied consent, so suppose I held against you on that point, then still you'd say, we win anyway, because we can waive this requirement by just not objecting on appeal. When... when the other side appeals it we say, we don't care, or when you appeal it the other side says, we don't care. We consent now. What happens then?
Lisa R. Eskow: --Well, certainly--
Stephen G. Breyer: Now what, about that?
Lisa R. Eskow: --Assuming there is a violation of... of the rule, and that their consent is not lacking, the question is, what is the consequence for noncompliance with the rule, and certainly the failure to comply with these procedures, for that to be an automatic grounds for reversal would be a deviation from accepted practice, which is a party has to object to a proceeding, has to preserve error, and here, no party objected, and it is their personal right to the Article III judge. It is their personal consent--
Stephen G. Breyer: But the argument is--
Lisa R. Eskow: --that is at stake.
Stephen G. Breyer: --of course, that you can't cure a basic jurisdictional problem. You... both parties could not go out on the street, pick the third person whom you see and say, you decide our case, and then you appeal his decision, and when somebody says, who's that person, you say, we waive all the claims that he isn't a judge.
Lisa R. Eskow: Well, certainly, if Congress had not provided for a scheme that existed, and the parties randomly invoked the authority of a person on the street, that would be a problem, but here, you have a magistrate judge who has been specifically assigned by Congress to perform this function and has been designated by the district judge of the court, and the only question is, have the parties agreed, and if... and if no party objects to that and the magistrate judge enters the final judgment, even if there's been noncompliance with the rules, the question is, what is the harm, and even--
William H. Rehnquist: So you say basically this isn't jurisdictional in the strict sense of the word?
Lisa R. Eskow: --No. No, Your Honor, absolutely not. It's not a question of subject matter jurisdiction. The term, jurisdiction, solely is a question of authority of the powers of the magistrate judge to act.
Anthony M. Kennedy: Do you think it's like personal jurisdiction, or more... it's more like personal jurisdiction or subject matter--
Lisa R. Eskow: It's more--
Anthony M. Kennedy: --Because if you say personal, then you have on your side the rule that a general appearance, general... as a--
Lisa R. Eskow: --Absolutely.
Anthony M. Kennedy: --as a rule waives deficiencies.
Lisa R. Eskow: And that it can be waived inadvertently, even by failing to timely assert the person--
Stephen G. Breyer: My question is why, because the argument that it is like a person on the street is that a magistrate who is not an Article III judge is going to preside over a jury trial, and the result of that trial will have all the trappings and... and dignity and enforcement power of a judgment of a court of the United States, and the only way this could possibly occur is if the parties consent, particularly since it's a jury trial, and where they don't consent, he really is like a person off the street, because of the importance of what the parties are giving up in order to obtain his judgment rather than that of an Article III judge. All right, now that's the other side's argument. Now, I want to know how you respond.
Lisa R. Eskow: --Well, certainly in Peretz versus United States this Court considered a circumstance where, in a felony trial, a magistrate judge was supervising the voir dire, and the defendant's counsel did not make any objection to that when it went on, and this Court determined, both from a personal litigant Article III perspective, as well as from a structural perspective, that there was no infirmity in that procedure, and that a defendant who does not assert his right to an Article III judge has no cognizable right that he can enforce, and that would be the same circumstance here, for the same reasons why the felony voir dire was permissible without objection of the defendant in Peretz versus United States. Here, without objection from the parties, with their fully informed knowledge of the nature of the proceedings, and their proceeding through judgment affirmatively invoking the authority of the judge, it is directly parallel to the situation in Peretz versus United States, and certainly the litigants waived their personal Article III right to a district judge, and the same structural protections that this Court deemed sufficient in Peretz also would exist here, because the magistrate judge is appointed, or direct... referred the case only by the district judge, the district judge can at any point in time, sua sponte, for good cause, take the referral back from the magistrate judge, and... and supervises the process. That insulates it from separations of powers concerns that--
Anthony M. Kennedy: One of... one of the insulating features in the suggested form and the rules of civil procedure makes it express that the consent form is not to be communicated to the judge or the magistrate in order to protect the attorneys who don't consent so that the magistrate or the judge doesn't know which party doesn't consent, and your rule completely destroys that.
Lisa R. Eskow: --No, Your Honor. We... in this instance, certainly if the parties are voluntarily proceeding with knowledge, a magistrate judge would be aware that they were going forward and that there are rules that inferred consent is what satisfies the statute, then yes, a magistrate judge would know when a party, upon notice both of their right to object and of the nature of proceeding, invoked the affirmative authority, yes, the magistrate judge at that time would know that the parties have made the dissent.
Anthony M. Kennedy: Well, no, but you... you presume a regime in which the magistrate said, I'm ready to proceed, and you... somebody stands up and says, well, I don't consent. I mean, that's... that's the regime you want us to adopt, so that... that destroys the confidentiality.
Lisa R. Eskow: Well, certainly in many circumstances the... the local rules do provide for the communication to the clerk, and that is what Rule 73 provides. As a matter of practice, however, in 1990, Congress relaxed the consent provisions to permit discussions between the district judge and the magistrate judge about consent, that they could remind the parties that they could consent to a magistrate judge, and that that was a topic that could be discussed in... in the courtroom provided that there was no coercion to consent. If--
Anthony M. Kennedy: Where did... where did the Congress do that? You say the Congress did that?
Lisa R. Eskow: --In 1990, Congress amended subsection (c)(2) to loosen the consent requirements, and certainly it still anticipated that the decision is going to go to the clerk of court, but magistrate judges and district judges are not prohibited from discussing the matter of a referral with the parties, and if a party failed to sign the requisite form, certainly there'd be no... no prejudice by proceeding to inform the judge at the time that the issue came up that they did consent, and certainly, to... to wait until the eve of trial, when every indication was that they had consented, and to withdraw it at that point, an inferred consent rule would be more consistent with holding the parties to the benefit of their bargain.
John Paul Stevens: May I just make one... ask you one clarifying question for me? Is it your position that it... it is not necessary either to consent in advance, or to have the consent in writing?
Lisa R. Eskow: No, Justice Stevens. We believe that you do have to consent. You have to voluntarily agree before the magistrate judge can act.
John Paul Stevens: But... but wasn't there a finding that that did not occur in this case?
Lisa R. Eskow: No, Your Honor, the... only a finding that they did not expressly consent. The magistrate judge expressed... actually did find that they clearly had implied their consent by their conduct, but deemed implied consent insufficient. The only piece that was missing was an express memorialization of the voluntary agreement that did exist.
John Paul Stevens: The statutory provision that you... that you cited, which provides for subsequent discussions, is predicated on the fact that consent has first been communicated to the clerk of the court.
Lisa R. Eskow: Well--
John Paul Stevens: So Congress basically talked about this discussion process against the backdrop of a consent form that had already been communicated to the clerk.
Lisa R. Eskow: --We would disagree, Justice Kennedy. The legislative history actually indicates that the... the provision was intended to enable the district judge and the magistrate judges to inform--
John Paul Stevens: But that's not what the statute says.
Lisa R. Eskow: --to inform the parties of the availability, irrespective of whether they had actually already consented, because too many magistrate judges and district judges believed that they... they could not go on record.
William H. Rehnquist: Do you want to reserve the remainder of your time, Ms. Eskow?
Lisa R. Eskow: Thank you.
William H. Rehnquist: Ms. Frost, we'll hear from you.
Amanda Frost: Mr. Chief Justice, and may it please the Court: All parties must expressly consent before a magistrate may exercise jurisdiction under section 636(c). First and foremost, this is because the text of the Magistrates Act and Rule 73(b) require express consent. In addition--
Ruth Bader Ginsburg: Oh, the text does not require express consent. I beg to differ.
Amanda Frost: --I'd like to--
Ruth Bader Ginsburg: It does not. I think that's how you want us to interpret it, but I don't think the word is there, is it?
Amanda Frost: --The word, express, is not there, Your Honor. It is in Rule 73(b), and in addition, I'd like to point Your Honor... Your Honor to some of the provisions of 636(c) which strongly indicate that the consent must be expressed.
William H. Rehnquist: What part of 73(b) uses the word express?
Amanda Frost: 73(b) refers... it does not use the word express, Your Honor.
William H. Rehnquist: So then neither the statute nor the rule use the term express, as you suggested earlier.
Amanda Frost: Neither use the term, express. Rule 73(b) refers to the... that the parties shall execute and file a consent form. That is a written form of consent that obviously must be express. It couldn't... wouldn't be possible to file in writing a consent without that being express. It is our position here that written consent is required, and I used the word express only because this Court need not go that far in this case, because these... the petitioners here not only failed to file their consent in writing, as 73 requires, but they also failed to articulate consent at all, and... and so there is no need to reach the... the question of whether a consent must be in writing.
Ruth Bader Ginsburg: Well, it could be implied. That's the question of whether the consent, if it is required, as it appears to be, could be implied, and if there ever were a case for implying consent, this is that case.
Amanda Frost: I... I respectfully disagree, Your Honor. For example, I think that everything that these petitioners did was as consistent with an intent to withhold consent as to give consent, and I'd like to show you as an example the motion for summary judgment that was filed in this case that petitioners have pointed to as being evidence of clear consent. It's captioned, To the Honorable Judge of the District Court, and it was submitted to the clerk. In addition, a magistrate may review a motion for summary judgment under 636(b) without the parties' consent, so nothing that the petitioners did by submitting this motion indicated their... their intent to consent to these proceedings.
William H. Rehnquist: But wasn't there a trial?
Amanda Frost: Yes, there certainly was, Your Honor.
William H. Rehnquist: They... they did participate in the trial.
Amanda Frost: Yes.
William H. Rehnquist: So even if filing that motion did not give implied consent, perhaps it could be argued that simply participating in the trial gave it.
Amanda Frost: Yes, Your Honor, that is petitioners' argument, and the reason I think that argument cannot be... is not in accord with the language of the Magistrates Act is, first of all, consent is used consistently throughout the act to be... to mean an express statement. For example, in 636(h), a retired magistrate may come out of retirement and serve again upon the consent of the... of the chief judge of the district court, and I don't think even petitioners would argue that that consent could be implied in the sense that the chief judge never said or wrote that the retired judge--
William H. Rehnquist: But it's used in a little bit different sense there. It requires basically the permission of the chief judge, which you know, I think you're quite right in saying that that would not be satisfied by simply doing nothing, but in... in a case where you're talking about an agreement, I... I think it's... the law is different in some... in some respects.
Amanda Frost: --Well, I respectfully disagree, Your Honor, because both provisions, 636(h) and 636(c)(1) use the term, upon consent, and I think that where Congress used the same term throughout the statute, it should be interpreted to have the same meaning, but that's not the only provision I rely on. There's the fact that the Congress thought consent would be communicated to the parties. There's the fact that Congress said, upon consent, meaning consent must come first. It makes no sense to say, consent must come first, if what Congress meant was, simply by showing up once the magistrate starts exercising that authority, we are going to consider you to have consented.
Ruth Bader Ginsburg: Why not? If... Justice Kennedy brought up the analogy to personal jurisdiction. If one makes a general appearance just by showing up in court, then any question of whether the court would otherwise have jurisdiction is gone, because there is jurisdiction, personal jurisdiction by consent, just by making a general appearance, so why isn't showing up in that magistrate's courtroom, going to trial without objecting, why isn't that equivalent to a general appearance?
Amanda Frost: Justice Ginsburg, the answer to your question is that there is in the Federal Rules of Civil Procedure Rule 12, which says that showing up will be waiving your right, and here we have a statute that requires consent, and it's important to look at why Congress wanted that. Congress was clearly very concerned that consent be voluntary, willing, and knowing. Petitioners agree, and the question is, what is the best way to protect that? Express consent protects the consent and ensures that it is voluntary.
Ruth Bader Ginsburg: I could understand that in the abstract. In the concrete, as applied to this case, if the plaintiff, the pro se plaintiff didn't consent and then lost, I could see an argument there, but this is the State Attorney General, and when they show up and they go to trial, it seems to me it's reasonable to imply that they have consented.
Amanda Frost: I think not, Your Honor, for a few reasons. First of all, there is nothing that would have stopped these parties from... from arguing after the fact that they hadn't intended to consent, and there's no evidence as a result of the fact that the counsel failed to specifically consent--
Anthony M. Kennedy: Well, how... how could they have made that argument in this case, say, well, we just forgot about the rule, we didn't know, or--
Amanda Frost: --The argument they would make is--
Anthony M. Kennedy: --I... I just can't imagine what the State Attorney General would say, after having participated in a trial and say, well you know, I really didn't consent.
Amanda Frost: --I think that what the State Attorney General would say was, I had not realized that my... I had not realized that I had not checked with my clients, that I had not... because the State Attorney General took this case over, he... he could say, I had not realized that my clients had not already agreed to do this, they have a right to an Article III judge.
William H. Rehnquist: Well, but it... I mean, who... who is the Attorney General's client except State officials?
Amanda Frost: Well, I think, Your Honor... that's true, Your Honor, but these questions go to the question of whether Congress intended different consent standards for different parties, and also to the question of whether Congress would want this kind of satellite litigation on the question of consent. I think it is telling that these... that the petitioners in this case, when asked whether they consented, said they could not, never consented, the documents they submitted to the district court were captioned to the district court, they did not indicate that they intended to go before a magistrate. Would Congress have wanted courts to have to deal with the satellite litigation of parties arguing whether they did or didn't consent?
Ruth Bader Ginsburg: But Ms. Frost--
John Paul Stevens: --Well, once this--
Ruth Bader Ginsburg: --you're asking them to engage in much more than satellite litigation over consent. The result of your position is that there will be a whole new trial, so it's going to engage the court much more than making a determination whether, in fact, the State officials consented by appearing before the magistrate, so--
Amanda Frost: Yes, Justice Ginsburg, that is true in this case, but if the rule is explicit consent rather than inferred consent, and if that is established as the rule, then there will be far fewer occasions on which mistakes are made.
Ruth Bader Ginsburg: --But it was the... but it was the local rule.
Amanda Frost: Yes.
Ruth Bader Ginsburg: And it... and... so we're dealing with only the consequences, and I could see if this were a big question of subject matter jurisdiction, you'd say that the parties can't waive that, but this kind of rule is at a much lower level.
Amanda Frost: Well, I respectfully disagree, Your Honor. I think that, both throughout the Magistrates Act and the legislative history, Congress referred to section 636(c) as an expansion of the magistrate's jurisdiction to act, and that jurisdiction can only be invoked upon the consent of the parties.
David H. Souter: No, but if you're saying that that jurisdiction is on the level, as I think you are, on the level with subject matter jurisdiction--
Amanda Frost: Yes.
David H. Souter: --then it seems to me you've proved too much, because if it were... if Congress were assuming it was on that level, Congress wouldn't have done this in the first place. You can't consent to subject matter jurisdiction, and you can't consent to it by filing written forms before trial, so we've got to make the assumption, just as Justice Ginsburg did in her question, that we're dealing with an interest which Congress viewed at a very lower level.
Amanda Frost: I respectfully disagree, Justice Souter, and here's why. It's not a question of consenting to subject matter jurisdiction, it's a question of what did Congress say are the limits of the magistrate's--
David H. Souter: No, but I mean, we... I'll... I'll grant you that... I mean, I read the statute, this... and the rule the same way you do. Of course, what Congress had in mind was consent beforehand, and I think you're right, consent in... in written form. The question is, if... if that consent is not given, and a whole trial is held, did Congress regard the subject of the consent as being on the same level as subject matter jurisdiction so that it could not possibly either be satisfied by... by an... an inferred consent or corrected afterwards, and if it were on the level of subject matter jurisdiction, then there couldn't have been consent in the first place, so we've got to assume that Congress regarded the interest here as something less significant than, say, subject matter jurisdiction.
Amanda Frost: --I would not put it quite in those terms, in terms of less significant. I think what Congress did was establish thresholds to the magistrate's exercise of jurisdiction, and this is separate and apart from saying this is a Federal question case. Of course, we agree with that. This case was properly in Federal court. The question is, were the two prerequisites to the magistrate's exercise of authority met? One is the designation by the district court, and the other is consent.
William H. Rehnquist: 630... 636(c), as you point out, talks about the consent of the parties. Now, supposing an attorney for a party comes in, signs a consent form, and then the... he loses the case. Can the client later come in and say, I never authorized the attorney to sign that consent form?
Amanda Frost: First notice... that's, I think, a question that's... it's arguable, but I would think that the argument would be that no, the client at that point is bound by the attorney's representation, just as clients are bound by their attorney's representations in many other situations.
William H. Rehnquist: But they aren't bound by their attorney's representations in some criminal cases. I mean, the... the client must make the decision. You don't think this is one of them?
Amanda Frost: I... I think the... it's arguable, but the answer I think is no, because there are many very important decisions that counsel... they're supposed to consult with their client and, indeed, it would be a violation of the Rules of Professional Responsibility if they didn't in this instance on this question of consent, but if for some reason the counsel made an error, frequently litigants are at the mercy of their counsel.
Stephen G. Breyer: I... I thought they were going to ask... I agree, Peretz is not in point, because it's an issue where they did consent, but the... the... there is a doctrine called the de facto officer doctrine, and that means that if it's a fairly unimportant error, it can be waived. For example, if a judge sat in the wrong district, or the judge was designated to sit while the other judge was sick, and then the other judge died, so he wasn't just sick. I mean, and these were all errors, and the court said, well, they do not go to jurisdiction, they're waivable. Now, why isn't this case like that, at least if we assume there was real consent given, it was just implied. It violates the statute all right, but no real harm is done, if they want to waive it, they can?
Amanda Frost: Yes, well, Justice Breyer, the first response to the de facto officer doctrine is that that is supposed to apply to minor errors, and--
Stephen G. Breyer: That's right. They'll say, this is sort of minor.
Amanda Frost: --And--
Stephen G. Breyer: Because after all it's not that important, given the fact they gave the consent anyway. At least, they showed up for trial.
Amanda Frost: --I was going to say, it's not that important considering the fact that they expressly consented after the fact of the trial, but that, of course, cannot be what this Court relies on, or--
Stephen G. Breyer: No, but I'm asking you really to answer, why isn't it trivial? Why is it important? Why isn't it small enough that it could be waived? Why is it grand enough that it implicates what we call jurisdictional error, the parties can't cure it, they can't waive it?
Amanda Frost: --Justice Breyer, the answer to your question is first that Congress created it as a jurisdictional threshold, second, that Congress was very aware of the constitutional issues that arise when you delegate Article III powers to non-Article III actors, and for that reason, Congress repeatedly stated it wanted consent to be voluntary, knowing, and willing. It was concerned that less-advantaged litigants might be coerced, or might not realize that they have a right to an Article III judge. For this reason, Congress--
Ruth Bader Ginsburg: But then, if it's jurisdictional as you say--
Amanda Frost: --Uh-huh.
Ruth Bader Ginsburg: --then why doesn't 1653 control? Title 28, 1653 reads, defective allegations of jurisdiction may be amended upon terms in the trial appellate court. A provision like that would take care of the pro se person, because the court could say, on terms it's not fair to hold this person, this pro se litigant to consent that that person didn't give, but that it's perfectly appropriate to hold the State Attorney General, so even if we grant that it was jurisdiction, why doesn't 60... 1653 take care of it, saying defective allegations of jurisdiction may be amended even in the appellate court?
Amanda Frost: I think that would not be sufficient, Your Honor, because it would change the language of the statute, and in addition it would... the question would have to arise, what would happen if the Attorney General came in at the end of this process and said, I didn't consent, and I think that there would be a strong basis on this record for the Attorney General to proceed on that argument successfully. The rule in the Fifth Circuit that the Attorney General was supposed to be familiar with was that all the parties must submit written consent before trial, so the fact that they didn't would be strong evidence they had not intended to consent. Then you have the fact that all their pleadings are captioned to the district court, you have the fact that there was some switching off of counsel so it's not clear whether the individuals, individual defendants here had ever been consulted, or ever had an opportunity to object.
William H. Rehnquist: Is the customary way in the Southern District of Texas to caption a pleading, Before the Magistrate Judge, if the magistrate judge is presiding?
Amanda Frost: I do not know the customary way that pleadings are captioned. I do know that, from looking through the record in this case, that later pleadings, once the issue had come up that the magistrate... that there was never explicit consent before the trial, and later pleadings did not have that caption, so it had been taken out, and I guess my point in--
William H. Rehnquist: What did the later pleadings have?
Amanda Frost: --Nothing. There was... there was not in... in the summary judgment motion that I appealed there is in all caps, a line that says, to the Honorable Judge of the District Court, and in the later pleadings that line was simply removed. There was nothing there. But my point, Your Honor, is not... yes, that may have been a form caption. I don't dispute that. My point is that there is nothing, from their submitting of a motion for summary judgment, that indicates their consent.
Stephen G. Breyer: What happens with our... suppose you have a defective diversity suit, and you get up to the court of appeals and suddenly discover that one of the defendants is from the same State, that there are many defendants, and so the party says, oh, don't worry, we'll drop him out, so they drop him out at the appellate stage. Does that rescue the whole case, or do you have to do it all over again? What happens? I don't know.
Amanda Frost: This Court's decision in the Caterpillar case held that as long as there is the... as long as diversity is met at the time of the entry of judgment, then that is acceptable, but that isn't your hypothetical.
Stephen G. Breyer: Entry of which judgment, of the lower court's--
Amanda Frost: The district court, the lower court's judgment.
Stephen G. Breyer: --The district court, so you'd say if we're doing it by analogy, you win?
Amanda Frost: Yes. Yes, Your Honor.
David H. Souter: Who do you suppose was intended to be protected by these congressional requirements? The point of my question is, wasn't the point to protect people who didn't want to be tried by a magistrate judge, and if that is the answer, why is someone in your position, or your client's position, in a position to object at all here? Your client gave consent.
Amanda Frost: No. There are two answers to that, Justice Souter. The first is that there are both structural protections and personal protections in the consent requirement. As this Court said in CFTC v. Schor, when Congress requires consent, or when consent is required, that serves as a break on the delegation of Article III authority, and that preserves the separation of powers required by the Constitution.
David H. Souter: Okay, but if... if we say, this does not rise to the level of structural problems, which is what we were getting at--
Amanda Frost: Yes.
David H. Souter: --earlier when we were saying, well, it doesn't rise to the level of personal jurisdiction, so if we say, that's not really involved here, then it's merely a personal protection, and I suppose it's a personal protection for the purpose who... for the person who can give or refuse consent, and as long as your client said, fine with me to be tried by a magistrate judge, why isn't the end of it, that the end of it for you?
Amanda Frost: Because my client never consented to what happened here, which is that the Attorney General, by failing to consent--
David H. Souter: Well, you're saying my client never consented that they could get by without giving a written consent, but that... I mean, that, it seems to me, is turning the whole premise on its head.
Amanda Frost: --I have a slightly different point I'm trying to make, Justice Souter, which is--
David H. Souter: Okay. I should let you give your answer, okay.
Speaker: [Laughter]
Amanda Frost: --Which is that at the end of this proceeding, if the Attorney General's Office had said, oh, we made a... we didn't mean to consent, we're not filing a written consent form, and we can't consent here, then there would have been a new trial, and of course they were only going to do that if they lost at trial, so when I said my client didn't consent, my point was, my client didn't consent to go through a proceeding where his adversary had the opportunity to decide at the end of the case whether they--
Ruth Bader Ginsburg: But if you're wrong about, that... that the State Attorney General could have done that, and if, as the petitioners' counsel said, they would have been stuck. They went to trial. It's just like making a general appearance. If you're wrong about that, then I gather that you would lose, because then you would have, if the defendants couldn't get out at the end of it by saying, sorry, we never consented, if they couldn't get out, then I think you must lose.
Amanda Frost: --I disagree, Your Honor, and here's why, because the Magistrates Act establishes consent as one of the vital thresholds to the parties, to the magistrate's exercise of authority, and I do not believe that the provision that you're reading from would apply in a situation where Congress said, before a magistrate can take over that Article III authority there must be both designation and consent. I think if... if the district court here had not designated this magistrate, that is also an error that could not be overlooked.
David H. Souter: No, but I think you're answering a different objection. I said, why isn't your consent sufficient so that once you give it, you have no further objection, and you said, the answer is, I didn't consent to a trial in which they can sit back and wait and see what happens and then say, oh, we didn't consent, rendering the entire thing a waste of time. Justice Ginsburg says, yeah, but if we say, they don't have the right to pull their consent if they sat there and implicitly consented, then you don't have that problem at all, and that would be the end of the argument, and I don't think you've answered that.
Amanda Frost: Yes, I agree, and let me answer... you're very right, Justice Souter, and let me answer the question that I think you both are posing, which is, could a harmless error standard be applied here? In other words, if it is true that the only right is my client's, and--
David H. Souter: Well, that's another question, too, but--
Amanda Frost: --Oh, I saw them as related, because I... if I understood your question correctly, what I thought you were asking was--
David H. Souter: --Your answer was, I consented, so far as I was concerned, to be tried. I didn't consent to give them an option to go through an entire trial and then pull the rug out if they didn't like the result. Justice Ginsburg's suggestion and my suggestion is, if we... this. If we find that an implicit consent on their part is sufficient, they can't pull the rug out, and that would be the end of the issue so far as self protection is concerned, and I don't--
Amanda Frost: --I agree.
David H. Souter: --I don't see a way around that.
Amanda Frost: Yes, I... I was... I agree with Your Honor, and that was why I was turning to the question--
David H. Souter: That was why you were going to another subject. No, I--
Speaker: [Laughter]
David H. Souter: I'd do it, too. Okay.
Speaker: [Laughter]
Amanda Frost: --Well, respectfully, Your Honor, I think this is related, because what I was trying to say is that while I agree with you that once you say, if these people go forward at trial, they're stuck, then there is no question about, did my client get a raw deal here, because everyone's bound, and they would have been bound if they had lost, so that is why I am going on to the next argument, which is harmless error, and whether or not that would legitimately be something that a court could apply in this situation, and this Court has said, in both it's magistrate judge jurisprudence and also in its Article III jurisprudence--
John Paul Stevens: May I just interrupt with this question? If you took Justice Ginsburg's suggestion that just participation in the trial is enough to establish the consent, that would mean that the consent need not be given in advance of the beginning of the proceeding.
Amanda Frost: --Yes, and I think that--
John Paul Stevens: And the statute's rather clear that it has to come first, isn't it?
Amanda Frost: --Exactly, yes, Your Honor.
David H. Souter: Well, is... don't they give the consent, though, when the magistrate judge sits down and says, let's go, and... and the... I realize consent is not failure to object. There's a distinction there, but if the party sits there and the trial begins--
John Paul Stevens: --But may I ask, does he even have the authority to say, let's go, before consent has been given?
Speaker: [Laughter]
Amanda Frost: That is my argument, Justice Stevens, which is that because the statute says upon consent, the consent must come first, and therefore simply by--
David H. Souter: No, but the magistrate can say the words, let's go... I mean, he's got that First Amendment right, and if he--
Speaker: [Laughter]
David H. Souter: If the magistrate does say that, and everybody sits there, as it were, with a smile on their face, I would suppose that that was a consent at that point. I mean, isn't... couldn't you infer the consent at that point?
Amanda Frost: --I agree that consent could be inferred at that point, but I would disagree strongly that Congress intended inaction to equal consent.
Anthony M. Kennedy: Of course, the statute says that consent has to be communicated to the clerk.
Amanda Frost: Yes, exactly. I agreed that consent could be inferred from the parties' conduct, but that does not meet the requirement of the statute.
Ruth Bader Ginsburg: There's one dysjunction, and you have stressed, and I think rightly, that why was Congress doing this? It didn't want parties to be coerced into getting a magistrate instead of an Article III judge, it wanted to assure voluntariness, and those two concerns are not present in this case. I mean, nobody is suggesting the State Attorney General is being coerced, or didn't do this voluntarily, so the reasons for the provision don't exist, don't match this case.
Amanda Frost: I agree with you, Your Honor, but then the question is, well, did Congress intend for some different standard for consent to be applied in different cases? The Congress--
Anthony M. Kennedy: Well, I think we could take notice, couldn't we, that State Attorney Generals might not want to antagonize magistrates. They're going to be... they're institutional litigants, will appear there all of the time, and they might... and they might be reluctant to withhold consent, unless they could do it under the anonymous basis provided for in the rules.
Amanda Frost: --Yes, I agree with that, Justice Kennedy, and that would be another reason to say yes, Congress' concerns actually do apply to the State Attorney Generals, but in any case I think that what's relevant here as well is the fact that Congress clearly... and it couldn't be more clear, both from the use of the word jurisdiction in the statute, and from the fact that in the legislative history Congress expressed these concerns about voluntariness, that consent must be expressed. The counsel for the petitioners, when she was arguing, repeatedly referred to the fact that the local rules and Rule 73(b) protect the voluntariness concerns. They serve that purpose, and that is our point. That is what Congress said consent is for, and that is why Congress said consent cannot be something that simply is implied as you go along. Consent must be something you communicate to the clerk. It must be something clear, and that is why eight courts of appeals, we respectfully submit, have already reached the conclusion there must be express consent. They've reached the conclusion that without it, the court has no jurisdiction, and both... and all of these decisions came before amendments to the Magistrates Act in 1990, in '96. If Congress had an issue with both the consent requirement being read as express consent and with courts concluding they had no jurisdiction without it, then Congress could have take action, taken action, and because it didn't, I believe that that is a sign that Congress meant what it said in the Magistrates Act.
William H. Rehnquist: Thank you, Ms. Frost. Ms. Eskow, you have 3 minutes left.
Lisa R. Eskow: Because the statute was designed to protect the voluntariness of the parties, and the local rules and the Federal rules also serve that purpose, and here you have no party suggesting that they were coerced or involuntarily dragged before a magistrate judge rather than an Article III judge, to reverse in these circumstances, as the Fifth Circuit did, to sua sponte investigate consent when there is no question, where no one is claiming to have been involuntarily dragged before the magistrate judge, would be to import some sort of automatic, per se, plain error, subject matter jurisdictional principle into a context that is not based on subject matter jurisdiction but, rather, the particularity of a particular officer presiding and, as Justice Breyer noted, the de facto officer doctrine exists to insulate judgments from attack that have a technical deficiency, for example, not signing a consent form. And because all parties voluntarily proceeded in this fashion, their consent should not have been questioned after the judgment was entered, and there is no basis to find any sort of harm to any of the parties when their Article III rights were not violated in any respect, and for these reasons we would ask that you reverse the judgment of the Fifth Circuit.
William H. Rehnquist: Thank you, Ms. Eskow. The case is submitted.