Building on the Supreme Court’s decision in Wellness International, the Ninth Circuit closed loopholes to preclude a pro se litigant from reneging on implied consent to final adjudication by a non-Article III judge.
An individual filed suit in federal district court after having been denied disability benefits by the Social Security Administration. The district court assigned the case to a magistrate judge under 28 U.S.C. § 636(c), which provides that a magistrate judge may conduct “all proceedings” in a civil jury or non-jury case and enter judgment if the parties voluntarily consent.
Under a local rule, the clerk sent the parties a form establishing a deadline by which the parties may decline to consent to entry of final judgment by the magistrate judge. The notice said that each party “will be deemed to have knowingly and voluntarily consented” to proceeding before the magistrate judge absent signing and filing the form by the deadline.
The plaintiff did not sign or file the form. The clerk made a docket entry confirming that the parties consented to proceeding before the magistrate judge. Notably, the plaintiff had registered to receive electronic communications from the court before the deadline.
After the consent deadline, the government conceded that the proceedings in the Social Security Administration were in error. The magistrate judge entered a final order remanding the matter to the agency for further proceedings.
The plaintiff appealed, contending it was error for the magistrate judge not to have ruled him immediately entitled to disability benefits without further proceedings before the agency. The plaintiff’s appeal also argued that the magistrate judge was without jurisdiction to enter a final order.
The district court ruled that the plaintiff had consented to jurisdiction before the magistrate judge and affirmed on the merits. The plaintiff appealed to the Ninth Circuit.
Circuit Judge Richard R. Clifton devoted most of his July 3 opinion to the question of consent to the magistrate judge’s power to enter a final order. He said that consent may be “express or implied.” Quoting the Supreme Court, he said that consent may be implied if the party “was made aware of the need for consent and the right to refuse it, and still voluntarily appeared to try the case before the” magistrate judge. Roell v. Withrow, 538 U.S. 580, 590 (2003).
Judge Clifton said that Wellness International Network, Ltd. v. Sharif, 575 U.S. 665 (2015), extended the notion of implied consent to bankruptcy cases where the bankruptcy court would not have authority to enter a final order absent actual or implied consent. He said that Wellness International advocated increased judicial efficiency and “checking gamesmanship.” Id.
Based on several factors, Judge Clifton held that the consent form satisfied the requirements of Roell and Wellness International. First, the plaintiff did not object when the clerk made the docket entry saying that the parties had conceded to proceeding before the magistrate judge. Instead, the plaintiff proceeded to litigate on the merits and did not object. The pro se plaintiff only objected after the district court held that he had consented.
According to Judge Clifton, not finding consent would reward “gamesmanship” that Roell had warned against.
As a pro se litigant, the plaintiff argued that he believed he was only consenting to the issuance of a report and recommendation because he did not grasp the jurisdictional issue.
Judge Clifton pointed to the Second Circuit for having held that pro se status may bear on the party’s implied consent. In Yeldon v. Fisher, 710 F.3d 452, 453 (2d Cir. 2013) (per curiam), however, the pro se litigant continued to litigate on the merits after expressly declining to consent.
Judge Clifton declined to follow Yeldon because the plaintiff had not objected. He went on to say that “we have never held that pro se litigants are incapable of knowingly or voluntarily consenting to magistrate judge jurisdiction.” He affirmed the ruling of the district court that the plaintiff had consented to “magistrate judge jurisdiction.”
Circuit Judge William A. Fletcher concurred, recommending that the district judges modify the form “to make its meaning crystal clear” that failure to file the form results in consent.
Observation
Bankruptcy judges typically warn the parties that they will have consented to final adjudicatory power without a timely objection. Language in Judge Clifton’s opinion supports the conclusion that those warnings will amount to implied consent.
On a different subject, is the Second Circuit’s Yeldon decision still good law following Wellness International, which came two years later?
Yeldon could be read to mean that continuing to litigate might amount to a pro se party’s waiver of a previous refusal to consent to final adjudicatory power before a non-Article III judge.
We’ll let you decide whether Yeldon remains good law or might be applicable to bankruptcy cases.
Building on the Supreme Court’s decision in Wellness International, the Ninth Circuit closed loopholes to preclude a pro se litigant from reneging on implied consent to final adjudication by a non-Article III judge.
An individual filed suit in federal district court after having been denied disability benefits by the Social Security Administration. The district court assigned the case to a magistrate judge under 28 U.S.C. § 636(c), which provides that a magistrate judge may conduct “all proceedings” in a civil jury or non-jury case and enter judgment if the parties voluntarily consent.
Under a local rule, the clerk sent the parties a form establishing a deadline by which the parties may decline to consent to entry of final judgment by the magistrate judge. The notice said that each party “will be deemed to have knowingly and voluntarily consented” to proceeding before the magistrate judge absent signing and filing the form by the deadline.
The plaintiff did not sign or file the form. The clerk made a docket entry confirming that the parties consented to proceeding before the magistrate judge. Notably, the plaintiff had registered to receive electronic communications from the court before the deadline.
After the consent deadline, the government conceded that the proceedings in the Social Security Administration were in error. The magistrate judge entered a final order remanding the matter to the agency for further proceedings.