Tracey Coleman v. Department of Labor Review Com
Filing
Filed opinion of the court by Judge Wood. We therefore VACATE the judgment of the district court and REMAND for proceedings consistent with this opinion. We thus overrule Hains. Because this resolves an internal circuit conflict and overrules one case, we have circulated this opinion to all judges in regular active service. See Cir. R. 40(e). A majority of the judges did not wish to hear this case en banc. Judge Easterbrook, joined by Judge Sykes, voted in favor of an en banc hearing. Judge Posner dissents on the merits. Diane P. Wood, Chief Judge; Richard A. Posner, Circuit Judge, dissenting and Ann Claire Williams, Circuit Judge. [6848470-1] [6848470] [15-3254]
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐3254
TRACEY COLEMAN,
Plaintiff‐Appellant,
v.
LABOR AND INDUSTRY REVIEW COMMISSION OF THE STATE OF
WISCONSIN,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 15‐CV‐984 — William E. Duffin, Magistrate Judge.
____________________
ARGUED NOVEMBER 2, 2016 — DECIDED JUNE 16, 2017
____________________
Before WOOD, Chief Judge, and POSNER and WILLIAMS, Cir‐
cuit Judges.
WOOD, Chief Judge. Seeking to proceed without prepay‐
ment of fees, Tracey Coleman brought a pro se suit against the
Labor and Industry Review Commission of the State of Wis‐
consin (Commission). At the same time as he submitted his
affidavit of indigence, see 28 U.S.C. § 1915(a)(1), he filed a doc‐
ument indicating that he consented to have a magistrate judge
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decide the case. 28 U.S.C. § 636(c)(1). The magistrate judge
dismissed the suit and entered a final judgment before the
Commission was even served, and thus before it had any oc‐
casion either to consent to or to refuse the option of proceed‐
ing before the magistrate judge. Coleman appealed, and we
recruited counsel to assist him. The question before us is
whether a plaintiff’s consent alone can give a magistrate judge
the necessary authority to resolve a case on the basis that the
complaint fails to state a claim upon which relief can be
granted, in a case that otherwise requires an Article III judge.
We conclude that the answer is no: only consent by both (or
all) parties will suffice, and so we must remand this case for
further proceedings.
I
ABM Industries hired Coleman in February 2014, and as‐
signed him to work at Carmen High School. It fired him less
than three weeks later because it believed that he had sexually
harassed a school employee. Coleman responded by filing a
pro se suit against ABM and Carmen in federal district court;
he asserted that the real reason he was fired was racial dis‐
crimination. The suit ended more or less amicably with a stip‐
ulated dismissal on October 31. Coleman also sought relief
from the state Commission’s Equal Rights Division. That ef‐
fort came to naught. On July 22, 2015, an administrative law
judge dismissed Coleman’s case because he had failed to meet
certain deadlines. Coleman then turned back to federal court.
He filed a second pro se suit on August 18, this time contend‐
ing that the Commission had denied him due process and re‐
questing permission to proceed in forma pauperis (IFP). See
28 U.S.C. § 1915. This was when he filed his consent to pro‐
ceed before the magistrate judge.
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The magistrate judge took up the matter immediately. He
found that Coleman’s request to proceed IFP was financially
supported, but he ordered Coleman to submit an amended
complaint because the initial version failed to “offer any de‐
tails that could plausibly present a federal cause of action.”
The new complaint proved similarly deficient, and so the
magistrate judge dismissed Coleman’s case and entered final
judgment. In so doing, he relied on the instruction in 28 U.S.C.
§ 1915(e)(2) that calls for “the court” to “dismiss the case at
any time if the court determines that … (B) the action …
(ii) fails to state a claim on which relief may be granted.”
Here’s the rub: because the Commission had not yet been
served, the magistrate judge was proceeding with the consent
of only one of the litigants. Coleman filed a timely appeal
from the final judgment, as permitted by 28 U.S.C. § 636(c)(3).
Our appellate jurisdiction is secure. The important question
on appeal relates to jurisdiction at the district‐court level,
where the case was resolved by a magistrate judge who had
not received permission from “the parties” (plural) to act.
II
A
Article III vests the “judicial power” in “one Supreme
Court, and in such inferior courts as the Congress may from
time to time ordain and establish.” U.S. CONST. art. III, § 1. It
preserves the impartiality of those courts through two key
safeguards: life tenure and salary protection. Wellness Intʹl
Network, Ltd. v. Sharif, 135 S. Ct. 1932, 1938 (2015). The Su‐
preme Court has insisted that core judicial functions may not
be given to persons who lack these Article III protections, un‐
less all affected parties consent. See, e.g., Wellness, 135 S. Ct. at
1942, 1949 (Article I judge may adjudicate a case if the litigants
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validly consent); Stern v. Marshall, 564 U.S. 462, 482 (2011) (Ar‐
ticle III did not permit the bankruptcy court to enter final
judgment on a counterclaim); Nguyen v. United States, 539 U.S.
69, 77–78, 80 (2003) (panel of court of appeals judges could not
include an Article I territorial judge); N. Pipeline Constr. Co. v.
Marathon Pipe Line Co., 458 U.S. 50, 76 (1982) (assignment by
Congress to bankruptcy judges of authority to adjudicate all
civil proceedings “related to” bankruptcy violated Article III).
The case before us presents one aspect of that problem:
may an Article I judge dismiss an action for failure to state a
claim on which relief can be granted, if that dismissal is part
of the initial screening that occurs in IFP cases and thus takes
place before the defendants are served? Although the statute
does not say this in so many words, we have understood sec‐
tion 1915(e) to “direct[] courts to screen all complaints filed
with requests to proceed IFP.” Luevano v. Wal‐Mart Stores, Inc.,
722 F.3d 1014, 1022 (7th Cir. 2013). It instructs “the court” to
“dismiss the case at any time” if, among other things, the ac‐
tion “fails to state a claim on which relief may be granted.”
28 U.S.C. § 1915(e)(2)(B)(ii). The magistrate judge in our case
followed that command and entered a final judgment for the
as‐yet‐unserved defendant. We must decide whether this was
permissible.
B
We begin with the pertinent language of the Magistrate
Judges Act:
(c) Notwithstanding any provision of law to the
contrary—
(1) Upon the consent of the parties, a full‐time
United States magistrate judge … may conduct any
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5
or all proceedings in a jury or nonjury civil matter
and order the entry of judgment in the case, when
specially designated to exercise such jurisdiction by
the district court or courts he serves.
28 U.S.C. § 636(c)(1). Valid consent is not optional; it is “essen‐
tial to upholding § 636(c)’s constitutionality against argu‐
ments that it improperly vests the judicial power of the United
States in non‐Article III judges.” Kalan v. City of St. Francis,
274 F.3d 1150, 1152 (7th Cir. 2001). But although the consent
requirement is carved in stone, the identity of “the parties”
whose permission section 636(c)(1) demands is less clear. Is it
all of the parties? Some of the parties? Only any party who
must be before the court for purposes of the ruling in ques‐
tion?
The circuits have come to different conclusions about this
question, and unfortunately, so have we. The Fifth Circuit, in
Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995), and our opin‐
ion in Hains v. Washington, 131 F.3d 1248, 1249 & n.2 (7th Cir.
1997) (per curiam), take the position that an unserved defend‐
ant is not one of the “parties” for purposes of section 636(c)(1),
and thus the defendant’s consent is not required in order to
permit a magistrate judge to issue a dispositive order when
screening a complaint for IFP purposes. On the other side, the
Eighth Circuit, in Henry v. Tri‐Services, Inc., 33 F.3d 931, 933
(8th Cir. 1994), and our court in Geaney v. Carlson, 776 F.2d 140,
142 (7th Cir. 1985), hold that the magistrate cannot finally dis‐
pose of the case, on screening or otherwise, without the de‐
fendant’s consent.
No matter what the rules concerning consent are, there is
a substantial role for the magistrate judge to play in the
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screening process. Under the rule of Neals and Hains, the mag‐
istrate judge enters a final judgment on the case, while under
the approach of Henry and Geaney, he evaluates the complaint,
takes any nondispositive actions that are appropriate (e.g.,
further investigation of indigence), and recommends an ac‐
tion for the district court. See § 636(b)(1)(C). If the action rec‐
ommended is dismissal, the district court can enter that final
judgment (after considering any properly filed objections)
without bothering the defendants. Under either view, to the
extent that section 1915(e)(2) involves nondispositive issues,
such as the truthfulness of the allegation of poverty, nothing
in the Magistrate Judges’ Act prevents the magistrate judge
from resolving the issue. That is because a conclusion that the
plaintiff is not indigent does not foreclose further legal pro‐
ceedings—it just means that the plaintiff must pony up the
required filing fee. See 28 U.S.C. § 636(b)(1) (authorizing mag‐
istrate judges to perform a wide variety of non‐dispositive
matters).
Before turning to the question whether the consent of the
plaintiff alone suffices, a quick review of the screening pro‐
cess is in order. Until April 26, 1996, section 1915 did not cover
failures to state a claim. All the statute then said, with respect
to any kind of screening, was that the court “may dismiss the
case if the allegation of poverty is untrue, or if satisfied that
the action is frivolous or malicious.” 28 U.S.C. § 1915(d)
(1995). It was during the pre‐1996 era that the Supreme Court
decided Neitzke v. Williams, 490 U.S. 319, 320 (1989), which
raised the question “whether a complaint filed in forma pau‐
peris which fails to state a claim under Federal Rule of Civil
Procedure 12(b)(6) is automatically frivolous within the
meaning of 28 U.S.C. § 1915(d) [1989]).” Underscoring the fact
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that there is some distance between the total lack of merit con‐
noted by the word “frivolous” and a failure to state a claim,
the Court concluded that the answer was no. The justices
found it “evident that the failure‐to‐state‐a‐claim standard of
Rule 12(b)(6) and the frivolousness standard of § 1915(d) were
devised to serve distinctive goals, and that while the overlap
between these two standards is considerable, it does not fol‐
low that a complaint which falls afoul of the former standard
will invariably fall afoul of the latter.” Id. at 326. Nothing in
Rule 12(b)(6), the Court said, “confines its sweep to claims of
law which are obviously insupportable.” Id. at 327. This is be‐
cause the functions of Rule 12(b)(6) and section 1915(d) are
different. The latter statute permitted (then as now) judges to
“pierce the veil of the complaint’s factual allegations and dis‐
miss those claims” whose factual contentions are so baseless
that they are properly considered to be frivolous. Id.
The pre‐1996 regime was still in place when the Supreme
Court decided Denton v. Hernandez, 504 U.S. 25 (1992). There
the Court underscored that a dismissal for frivolousness un‐
der the IFP statute leaves the complainant free to pay the fil‐
ing fee and try again. Id. at 34. At the time, however, it was
still impossible for a district court to dismiss an IFP request
for failure to state a claim (or any other merits‐based reason).
Denton’s holding must therefore be understood as addressing
only the grounds for dismissal that were possible at the time.
The number of such grounds expanded dramatically in
1996. Concerned with the ballooning number of IFP requests,
particularly though not exclusively from prisoners, Congress
decided to enhance the courts’ screening powers. It did so in
the Prison Litigation Reform Act, which added to section 1915
an expanded set of reasons that would support dismissal “at
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any time” (including during preliminary screening). Those
reasons are as follows: (1) the allegation of poverty is untrue;
(2) the action or appeal is frivolous or malicious; (3) the action
fails to state a claim on which relief may be granted; or (4) the
action seeks monetary relief against a defendant who is im‐
mune from such relief. 28 U.S.C. § 1915(e)(2) (2017). See
Prison Litigation Reform Act of 1995, Pub. L. 104–134, 110
Stat. 1327 (1996); Hutchinson v. Spink, 126 F.3d 895, 899–901
(7th Cir. 1997) (discussing the 1996 amendments and antici‐
pating some of the problems that could arise if a case is dis‐
missed for failure to state a claim without the defendants’
knowledge).
Under the current regime, at the time a person files a com‐
plaint in which she seeks permission to proceed IFP, she must
also submit an affidavit setting forth all of her assets and
demonstrating that she is unable to pay the required fees. The
date on which that complaint is filed or properly mailed, if the
plaintiff is a prisoner, is considered to be the date when the
suit “commences” for purposes of Federal Rule of Civil Pro‐
cedure 3. See, e.g., Jones v. Bertrand, 171 F.3d 499, 500–02
(7th Cir. 1999); see generally 4 CHARLES ALAN WRIGHT,
ARTHUR R. MILLER & ADAM N. STEINMAN, FEDERAL PRACTICE
AND PROCEDURE § 1052 at 224–25 (4th ed. 2015). If the plaintiff
ultimately is found not to be eligible for IFP status and then
fails to pay the filing fee, the case is subject to dismissal on
that basis, but the failure to pay does not mean that the case
never started. See Farzana K. v. Ind. Dep’t of Educ., 473 F.3d 703,
707 (7th Cir. 2007).
C
We are now ready to turn to Coleman’s case. We address
three questions: whether a dismissal under section
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1915(e)(2)(B)(ii) must be treated as a full‐fledged dismissal on
the merits; what it takes to signify consent; and whether a de‐
fendant who has not yet been served is one of the “parties”
who must consent for purposes of section 636(c)(1).
The first of those questions addresses the Commission’s
argument that the meaning of the word “parties” in section
636(c)(1) depends in large part on whether a decision risks ad‐
versely affecting the putative litigant’s rights. The Commis‐
sion reasons that an unserved defendant should not be classi‐
fied as one of the “parties” at the IFP screening stage, because
screening does not meaningfully affect that defendant’s
rights. There is some force in this point, but not as much as
Judge Posner’s dissent and the Commission assume. Some
questions asked at the screening stage do not implicate the
merits (and thus the rights of both parties). But the question
whether the case states a claim on which relief may be granted
does.
This court reviews dismissals under 28 U.S.C.
§ 1915(e)(2)(B)(ii) for failure to state a claim under the same
standard we use for dismissals under Federal Rule of Civil
Procedure 12(b)(6). See, e.g., Arnett v. Webster, 658 F.3d 742, 751
(7th Cir. 2011); DeWalt v. Carter, 224 F.3d 607, 611 (7th Cir.
2000). Noting that the question is exactly the same under Rule
12(b)(6) and section 1915(e)(2)(B)(ii), we have said that “[w]e
see no reason to treat dismissals under § 1915(e)(2)(B)(ii) dif‐
ferently” from their Rule 12(b)(6) counterparts. DeWalt,
224 F.3d at 611. This strongly indicates that the action under
section 1915 is just as much an adjudication of the legal suffi‐
ciency of the complaint as a comparable decision under
Rule 12(b)(6) would be.
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It is telling that the courts of appeals have treated dismis‐
sals under section 1915(e)(2)(B)(ii) as final decisions for pur‐
poses of the “three‐strikes” rule in section 1915(g). That part
of the IFP statute says that “[i]n no event shall a prisoner bring
a civil action or appeal a judgment in a civil action or proceed‐
ing under this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility,
brought an action or appeal in a court of the United States that
was dismissed on the grounds that it … fails to state a claim
upon which relief may be granted … .” 28 U.S.C. § 1915(g).
In McLean v. United States, 566 F.3d 391, 396 (4th Cir. 2009),
the Fourth Circuit had to decide “whether Congress intended
an action or appeal ‘that was dismissed on the grounds that it
… fails to state a claim upon which relief may be granted’ to
count as a strike under 28 U.S.C. § 1915(g) if that dismissal
was specifically designated to be ‘without prejudice.’” (ellip‐
sis in original). It noted that “[w]hen Congress directly incor‐
porates language with an established legal meaning into a
statute, we may infer that Congress intended the language to
take on its established meaning.” Id. Unless the court directs
otherwise, a dismissal for failure to state a claim is with prej‐
udice and would count as a strike. The court held, however,
that if the section 1915(e) dismissal was specified to be with‐
out prejudice, then it would not be an adjudication on the
merits and would not count as a strike.
The Tenth Circuit came to a similar conclusion in Smith v.
Veterans Admin., 636 F.3d 1306 (10th Cir. 2011). There a district
court had dismissed a prisoner’s complaint on screening for
failure to state a claim. Id. at 1312–13. (It reached that conclu‐
sion because it decided that the prisoner’s action was barred
by Heck v. Humphrey, 512 U.S. 477 (1994).) The Tenth Circuit
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held that this dismissal counted as a strike for purposes of sec‐
tion 1915(g). Indeed, the Tenth Circuit would have gone be‐
yond the Fourth by also counting as strikes dismissals without
prejudice for failure to state a claim. Id. at 1313.
Further proof that dismissals for failure to state a claim
under section 1915(e)(2)(B)(ii) are final decisions on the merits
comes from the fact that they have res judicata effect. Thus, in
Cieszkowska v. Gray Line New York, 295 F.3d 204 (2d Cir. 2002),
the appellant challenged the dismissal for failure to state a
claim of her IFP complaint, because it was barred by res judi‐
cata. She had filed her first case in January 2000. At that time,
she sought to proceed IFP, but the district court dismissed her
complaint pursuant to section 1915(e)(2)(B)(ii) for failure to
state a claim under either the Fair Labor Standards Act or the
Consumer Credit Protection Act. In November 2000, she re‐
turned to the district court with a new case against the same
defendant; in her new action she charged unlawful discrimi‐
nation on the basis of national origin. Once again she sought
to proceed IFP, and once again, the district court rejected her
application on the ground of failure to state a claim. This time,
however, the court held that her action was barred by res judi‐
cata. The court of appeals affirmed, noting that “the factual
predicates of plaintiff’s allegations in the first and second
complaints involve the same events concerning her employ‐
ment, pay history, and termination. … Accordingly, the claims
in her second in forma pauperis complaint are now barred by
res judicata, and the district court properly dismissed her com‐
plaint under § 1915(e).” Id. at 206. See also Harmon v. Webster,
263 F. App’x 844 (11th Cir. 2008) (nonprecedential) (holding
that second complaint was barred by res judicata after first ac‐
tion was dismissed on IFP screening for failure to state a
claim).
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The fact that screening dismissals have res judicata effect
undermines the argument presented in Judge Easterbrook’s
opinion dissenting from the decision not to hear this case en
banc. He argues that the operative distinction is between per‐
sons bound by a judgment and others who are named in a
complaint but not bound (for example, because they have not
been served with process). That distinction would be compel‐
ling if it were not for the fact that claim preclusion attaches to
a screening dismissal for failure to state a claim upon which
relief can be granted. And if claim preclusion applies to a de‐
fendant who never knew about the case, it is hard to see how
that person is not bound by the judgment. Claim preclusion
has not followed the path taken by issue preclusion, for which
the requirement of mutuality has been abandoned, see
Blonder‐Tongue Lab., Inc. v. Univ. of Ill. Found., 402 U.S. 313
(1971) (approving non‐mutual defensive issue preclusion);
Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979) (approving
non‐mutual offensive issue preclusion). In Federated Dep’t
Stores, Inc. v. Moitie, 452 U.S. 394 (1981), the Supreme Court
considered and rejected an argument to deviate on equitable
grounds from the strict requirements of claim preclusion: a
final judgment on the merits, between the same parties or
privies, relating to the same claim. If then, as all have held,
claim preclusion is proper for a screening dismissal for failure
to state a claim, then both parties must be bound by that deci‐
sion, not just the plaintiff. And if both parties are bound, then
both must consent to the assignment of the case to the magis‐
trate judge.
This is because a dismissal at the screening stage for
failure to state a claim (with the possible exception,
inapplicable here, of a dismissal specified to be without
prejudice) is a decision on the merits of the complaint. Not
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only will the plaintiff be precluded from filing the same
complaint again; principles of res judicata will prevent her
from filing another complaint that arises from the same
underlying circumstances. We have found no instance in
which a district court, acting through either an Article III
judge or a magistrate judge, dismissed a complaint on
screening for failure to state a claim and then permitted the
same complaint to move forward upon the tender of the
necessary filing fees.
The conclusion we draw is that a dismissal under section
1915(e)(2)(B)(ii) for failure to state a claim is covered by the
language in the Magistrate Judges Act that prevents the dis‐
trict court from designating a magistrate judge to “hear and
determine” a motion “to dismiss for failure to state a claim
upon which relief can be granted.” 28 U.S.C. § 636(b)(1)(A).
That rule is not absolute, however. It yields when, as section
636(c)(1) puts it, the magistrate judge is acting with “the con‐
sent of the parties.” Packed into that short phrase are two
questions: what does it take to signify consent, and which par‐
ties (one, some, or all) have to consent?
Typically, both parties file written consents to the
magistrate judge’s jurisdiction and the case proceeds without
a hitch. And as Judge Posner’s dissent emphasizes, consent
need not be explicit. No dispute there: consent may be
implicit, as the Supreme Court recognized in Roell v. Withrow,
538 U.S. 580, 586–91 (2003). But even implicit consent requires
some action from the party whose consent must be found. In
Roell, for example, “Roell and Garibay clearly implied their
consent by their decision to appear before the Magistrate
Judge, without expressing any reservation, after being
notified of their right to refuse and after being told that she
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intended to exercise case‐dispositive authority.” Id. at 586
(internal quotation marks omitted). It is one thing to infer
consent from concrete actions—such as appearing and
participating in a case after being told about the
consequences—and quite another to infer consent from a total
lack of action. This pushes us from implicit consent to
assumed or hypothetical consent, and it is at most the latter
that exists in our case. The Commission did not even know
that it had been sued, and so it naturally took no step from
which its consent to proceed before a magistrate judge for a
dispositive ruling could be inferred. This is not enough to
qualify as implicit consent.
With the idea of presumed consent out of the way, the
question remains whether the statute permits the consent of
only one party. We think not. To begin with, that is not what
the statute says; it speaks instead of the consent of the “par‐
ties,” plural. The Commission sees no problem in the use of
the plural: at the time of screening, it notes, only one party has
come before the court. It should be enough, the Commission
says, to obtain only the consent of the party that is actually
present. This would require us to treat the unserved defend‐
ant as a nonparty to the case for this purpose.
Such a step would ignore the general use of the term “par‐
ties” throughout the rules of civil procedure. At the time of
filing any civil complaint, only one party is ever before the
court. Yet no one thinks, for example, that the plaintiff alone
has the right to consent to the district court’s adjudication of
the plaintiff’s motion for summary judgment, which can be
filed before the defendant is served, and indeed at “at any
time until 30 days after the close of all discovery.” FED. R. CIV.
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P. 56(b); see 28 U.S.C. § 636(b)(1)(A), (c)(1) (prohibiting mag‐
istrate judges from deciding summary judgment motions
without consent). Similarly, no one thinks that the plaintiff
alone can consent to a magistrate judge’s decision on a motion
to certify a class action, filed before the defendant has been
served and brought before the court. See FED. R. CIV. P. 23(c);
see 28 U.S.C. § 636(b)(1)(A), (c)(1).
The fact that it is the plaintiff who commences the suit
does not mean that the other parties named in the complaint
do not count as “parties” prior to service of process. And our
case differs in one critical respect from the hypotheticals that
concern Judge Easterbrook. Post, at 32‐34. All of his examples
involve a case that has at least one plaintiff and at least one
defendant. And in all of his examples, at least one plaintiff
and one defendant have consented to the authority of the
magistrate judge. That is the crucial element missing here: in
our case, only one side of the “v” has consented to the magis‐
trate judge, and under the statute, that is not enough.
Nothing in the decisions in Murphy Bros., Inc. v. Michetti
Pipe Stringing, Inc., 526 U.S. 344 (1999), and Cambridge Holdings
Grp., Inc. v. Fed. Ins. Co., 489 F.3d 1356, 1361 (D.C. Cir. 2007),
undermines that conclusion. Although both deal with the sta‐
tus of an unserved defendant, the questions arose in a very
different setting, and we know from Devlin v. Scardelletti,
536 U.S. 1 (2002), that context matters. In Scardelletti, the ques‐
tion was whether an unnamed member of a class certified un‐
der Rule 23 was entitled to appeal from the approval of a set‐
tlement to which he objected, when he had not first inter‐
vened at the district court level. Id. at 7. Rather than adopting
a hard‐and‐fast rule for party status, the Court essentially said
“it depends.” It catalogued various ways in which unnamed
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class members were “parties” (e.g., for purposes of tolling the
statute of limitations and for purposes of the amount‐in‐con‐
troversy rule) and ways in which they were not “parties” (e.g.,
for purposes of the complete diversity requirement). It con‐
cluded with the observation that “[t]he label ‘party’ does not
indicate an absolute characteristic, but rather a conclusion
about the applicability of various procedural rules that may
differ based on context.” Id. at 10 (emphasis added).
The context in which the “party” question arose in Murphy
Bros. and Cambridge Holdings is nothing like the one now be‐
fore us. The question in Murphy Bros. dealt with the timeliness
of a defendant’s removal of a case from state to federal court.
Section 1446(b) gives a defendant 30 days “after the receipt by
the defendant, through service or otherwise, of a copy of the
initial pleading … .” The defendant, Michetti, had filed a con‐
tract case in an Alabama state court on January 26, 1996; three
days later, before serving Murphy, Michetti faxed a courtesy
copy of the complaint to Murphy. Murphy did not receive for‐
mal process, however, until February 12, 1996. On March 13,
1996—30 days after service, but 44 days after receiving the
courtesy copy—Murphy removed the case to the federal
court. The Supreme Court held that the removal was timely,
because the 30 days began only at the time of formal service.
In reaching this decision, the Court emphasized the im‐
portance of service of process. In the absence of service (or
waiver), “a court ordinarily may not exercise power over a
party the complaint names as defendant.” 526 U.S. at 350. It
reasoned that “one becomes a party officially, and is required
to take action in that capacity, only upon service of a sum‐
mons or other authority‐asserting measure … .” Id. Nowhere
did it imply that the named defendant is not a “party” entitled
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to procedural protections. To the contrary, it is precisely be‐
cause the unserved defendant is a party that it is entitled to
the protection of formal service of process.
The interests with which the Court was concerned in Mur‐
phy Bros. related to the operation of the removal statutes. The
lesson we draw is that something as important as the choice
between a state court and a federal court, or between an Arti‐
cle I and an Article III judge, cannot be resolved against a
party without bringing the party into the case through formal
service of process.
There is also no conflict between our approach here and
Cambridge Industries. That case dealt with Federal Rule of Civil
Procedure 54(b); the question was what it means to resolve all
claims of all parties. On July 12, 2004, the district court dis‐
missed Counts 1 through 4 of Cambridge’s complaint against
two parties for failure to state a claim. Count 5 remained; it
was a request for an injunction against a third party. Nearly a
year went by before anything else happened in the case, but
on June 20, 2005, the district court dismissed Count 5 for fail‐
ure to prosecute and entered an order dismissing the case as
a whole. Cambridge filed a notice of appeal on July 19, 2005—
within 30 days of the June 20 order, but more than a year after
the order dismissing Counts 1 through 4.
As the D.C. Circuit recognized, ordinarily the question
whether the appeal had been filed within the required 30 days
would have been an easy one to answer. Rule 54(b) says that
an order disposing of less than all claims of all parties does not
qualify as a final judgment unless the district court enters a
Rule 54(b) certification that there is no just reason for delay
and that the judgment is indeed final for the party and claim
so certified. The quirk in the case once again had to do with
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service of process. It appeared that Count 5’s third party had
never been served. The court of appeals thus had to decide
whether a failure to resolve a claim against an unserved party
renders a judgment nonfinal for purposes of Rule 54(b), or as
the court put it, “whether a defendant that has never been
served is a ‘party’ for purposes of Rule 54(b).” 489 F.3d at
1360. The discussion that follows is closely tethered to Rule
54(b) and its purposes. The D.C. Circuit noted that eight cir‐
cuits had concluded that the unserved party did not defeat
finality for this purpose. Id. at 1360 n.1. This court had held
much the same thing in Manley v. City of Chicago, 236 F.3d 392
(7th Cir. 2001), which said that “the presence of an unserved
defendant does not defeat finality when an attempt by the
plaintiff to serve the complaint on the unserved defendant
would be untimely under Fed. R. Civ. P. 4(m) and any new
complaint against the unserved defendant would be barred
by the statute of limitations.” Id. at 395.
We see no reason to transplant the finality rules for re‐
moval or Rule 54(b) to the setting of IFP screening at the out‐
set of a lawsuit, particularly given the fact that in these other
settings the rules have operated to protect the interests of the
absentee party, not to act as if the party does not exist. These
cases do not compel a finding that the unserved defendant in
our case is a nonparty for purposes of 28 U.S.C. § 636(c).
Other aspects of the relevant statutes and rules reinforce
our conclusion. Section 636(c)(1) of the Magistrate Judges Act
twice refers to the “consent of the parties”; in no place does it
call for the consent of a “party.” We give statutes their plain
meaning, and we see no ambiguity in the meaning of the term
“parties”: It refers to the names on both sides of the “v,” with‐
out regard to events such as service of process. Federal Rule
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of Civil Procedure 4, which governs service, would make no
sense if the rule were otherwise. Rule 4 begins by stating that
a summons must “name the court and the parties.” See FED.
R. CIV. P. 4(a)(1)(A). The rule refers throughout to the yet‐to‐
be‐served opponent of the plaintiff as the “defendant”—a
word used only to connote a party to a lawsuit. Rule 4(i) dis‐
tinguishes parties from nonparties, for purposes of actions
that “challenge[] an order of a nonparty agency or officer of
the United States.” See FED. R. CIV. P. 4(i)(1)(C). Rule 4(k) talks
about an unserved defendant “who is a party joined under
Rule 14 or 19 … .” FED. R. CIV. P. 4(k)(1)(B).
The Commission attempts to avoid the use of the plural in
the Magistrate Judges Act by looking at the Dictionary Act,
which says that “[i]n determining the meaning of any Act of
Congress, unless the context indicates otherwise— … words
importing the plural include the singular.” 1 U.S.C. § 1, ¶ 2.
The last part of that excerpt might help, were it not for the
words “unless the context indicates otherwise.” Here the con‐
text, which includes both the remainder of section 636(c) and
the constitutional rulings of the Supreme Court, does indicate
otherwise. Rowland v. Cal. Menʹs Colony, Unit II Menʹs Advisory
Council, 506 U.S. 194, 199 (1993).
The remainder of section 636 supports a reading that dis‐
tinguishes between the use of the plural and the singular in
this setting. When a law employs a specific term at one point,
and omits it at another, we assume that “Congress intended a
difference in meaning.” Loughrin v. United States, 134 S. Ct.
2384, 2390 (2014). That rule applies here. Section 636(c)(1) re‐
fers to “parties,” but other parts of the same statute use the
singular. Thus, section 636(b)(1) says “[w]ithin fourteen days
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after being served with a copy [of a report and recommenda‐
tion], any party may serve and file written objections … .” (em‐
phasis added). The same subsection directs the magistrate
judge to mail a copy of his proposed findings and recommen‐
dations “to all parties.” (emphasis added). For purposes of ap‐
pellate review, the statute allows “an aggrieved party” to ap‐
peal directly to the court of appeals. 28 U.S.C. § 636(c)(3). It
also authorizes the district court, either on its own or “under
extraordinary circumstances shown by any party, [to] vacate a
reference to a magistrate judge.” Id. § 636(c)(4) (emphasis
added). The point is clear: in this particular statute, Congress
used the singular when it meant one party, and it used the
plural when it meant all parties.
If we had any doubt about the proper understanding of
the statutory text, it would be laid to rest by the constitutional
problem that would arise if we were to hold that the consent
of one party alone was enough to permit an Article I judge to
resolve the case on the merits. As the decisions in Wellness,
Marathon, Stern, and Nguyen demonstrate, institutional con‐
cerns beyond these two parties give final decisionmaking au‐
thority only to Article III judges, unless all parties consent to
an alternative. See Commodity Futures Trading Commʹn v. Schor,
478 U.S. 833, 848–51 (1986); Brook, Weiner, Sered, Kreger & Wein‐
berg v. Coreq, Inc., 53 F.3d 851, 852 (7th Cir. 1995).
III
This court, unfortunately, has not been consistent in its ap‐
proach to the issue we have been discussing. Hains, supra,
131 F.3d 1248, concerned 28 U.S.C. § 1915A, a law under
which the district courts review all complaints in civil actions
in which a prisoner seeks relief from a governmental entity or
officer. The Northern District of Illinois adopted a procedure
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under which magistrate judges conducted that screening and
ruled on motions to proceed IFP, if the prisoner signed a lim‐
ited consent form. Id. at 149. The prisoner complained after
the magistrate judge dismissed his action without allowing
him the opportunity to file objections and to obtain a de novo
ruling from the district court. We rejected his challenge, rea‐
soning that the prisoner’s consent “relinquished his right to
have an Article III judge rule upon his request to proceed in
forma pauperis.” Id. This was true even though the defendant
had not been served nor had it otherwise consented to the
magistrate’s authority; it was enough that the plaintiff had
agreed. Id. at 149 & n.2.
Hains, however, did not cite Geaney, supra, 776 F.2d 140, in
which a magistrate judge dismissed a prisoner’s case under
Federal Rule of Civil Procedure 41(a)(1)(i). Our decision in
Geaney was unambiguous: “We hold that this court lacks ju‐
risdiction to review the magistrate’s dismissal, whether char‐
acterized as voluntary or involuntary, and we dismiss for lack
of appellate jurisdiction.” Id. at 141. Our reasoning was con‐
sistent with the discussion that appears above. On the as‐
sumption that the dismissal was involuntary, we held that the
magistrate judge lacked authority to enter a final judgment,
because the defendants never consented to this procedure un‐
der section 636(c)(1). We stated that “[a] magistrate may enter
a final judgment only after a proper referral by the district
court and upon consent by both parties.” Id. at 142 (citing
§ 636(c)(1)) (emphasis added). We justified this ruling in part
by the “constitutional overtones” of the question. Id. See also
Brook, 53 F.3d at 852 (“Each litigant has a right to an Article III
judge, so consent must be unanimous.”).
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We see no principled way of reconciling Geaney and Hains,
even though Hains dealt with the prisoner‐specific section
1915A, whereas Coleman’s case was dismissed under section
1915(e). The relevant language and structure of these two stat‐
utes are identical. See Brown v. Bargery, 207 F.3d 863, 866 n.3
(6th Cir. 2000).
As we recognized earlier, in certain situations there is
some flexibility in identifying who is, and who is not, a party
to a case. Unnamed class members, for instance, are not full‐
fledged parties, and so they need not be served with process,
their citizenship does not matter for diversity purposes, and
they can obtain a direct seat at the table only by intervening.
A magistrate judge can therefore rule on a motion to intervene
filed by an unnamed class member, both because that person
is not yet a party, and such a motion in any event is nondis‐
positive. Williams v. Gen. Elec. Capital Auto Lease, Inc., 159 F.3d
266, 269 (7th Cir. 1998); People Who Care v. Rockford Bd. of Educ.,
171 F.3d 1083, 1089 (7th Cir. 1999). But this is not a class action,
and it is uncontested that only Coleman consented to the
magistrate judge.
In the end, Hains stands alone in this circuit. Our con‐
sistent emphasis on the importance of consent strongly sup‐
ports Geaney’s analysis. See also Stevo v. Frasor, 662 F.3d 880,
883–86 (7th Cir. 2011) (“A district judge may assign a magis‐
trate judge to hear a civil case and render final judgment, pro‐
vided that all parties consent voluntarily.”). We conclude that
Geaney, Brook, and Stevo are more consistent with the lan‐
guage of the statute and better respect the constitutional line
between Article III judges and other adjudicators. We thus
overrule Hains. Because this resolves an internal circuit con‐
flict and overrules one case, we have circulated this opinion
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to all judges in regular active service. See Cir. R. 40(e). A ma‐
jority of the judges did not wish to hear this case en banc.
Judge Easterbrook, joined by Judge Sykes, voted in favor of
an en banc hearing. Judge Posner dissents on the merits.
As we stressed earlier, this does not mean that the work of
the magistrate judge in this type of case is wasted. The role of
the magistrate judges in conducting screening of prisoner and
in forma pauperis actions is of great assistance to the district
court. But unless all parties to the action have consented to the
magistrate judge’s authority to resolve the case finally, the role
of the magistrate judge must parallel that of the bankruptcy
judges after Stern. Rather than entering final judgments, they
must “issue proposed findings of fact and conclusions of law
to be reviewed de novo by the district court.” Exec. Benefits Ins.
Agency v. Arkison, 134 S. Ct. 2165, 2168 (2014). We realize that
this adds one extra step, but it is not a particularly burden‐
some one, and it does not mean that parties in the Commis‐
sion’s position must be served before the case can be resolved.
It just means that the district judge must enter any post‐
screening orders that dispose of the entire case. Fears that the
district court judges will drown beneath a deluge of IFP ap‐
plications are overblown. The Stern dissent expressed similar
fears, but this has not come to pass. Stern, 564 U.S. at 520–21
(Breyer, J., dissenting). The magistrate judges’ screening is
among those “additional duties as are not inconsistent with
the Constitution and laws of the United States.” 28 U.S.C.
§ 636(b)(3).
IV
We have before us a decision from the district court that
lay beyond that court’s jurisdiction, because the judicial of‐
ficer who entered it was not properly authorized to do so. The
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proper remedy, we conclude, is to vacate the judgment of the
district court and remand for further proceedings. In keeping
with such cases as Stern and Wellness, we note that on remand
the district court will be free to take the magistrate judge’s de‐
cision as a report and recommendation and proceed accord‐
ingly.
We therefore VACATE the judgment of the district court and
REMAND for proceedings consistent with this opinion.
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POSNER, Circuit Judge, dissenting. The plaintiff, proceed‐
ing pro se and seeking in forma pauperis status (that is,
seeking permission to commence a civil suit without pre‐
paying the court’s filing fee), filed suit against a Wisconsin
agency complaining of racial discrimination in employment,
and consented to a magistrate judge’s exercising jurisdiction
over the suit. When a plaintiff who is not a prisoner (and the
plaintiff in this case is not) seeks in forma pauperis status,
normally the district judge or magistrate judge assigned to
the case will conduct an initial screening of the complaint to
determine whether the plaintiff really is too poor to pay the
fees, or whether, though he is, his suit is frivolous, malicious,
fails to state a claim, or seeks monetary relief against an im‐
mune defendant. 28 U.S.C. § 1915(e)(2). The plaintiff in this
case did not serve the defendant before the initial screening,
consistent with the guidance document of the Eastern Dis‐
trict of Wisconsin for pro se litigants which advises that
serving the defendant is the next step after screening.
The defendant, whether or not aware of the suit (as it
may have been despite not being served), did not express
consent to a magistrate judge’s exercising jurisdiction over it.
But because the plaintiff had consented to a magistrate
judge’s handling the case, that judge screened the complaint,
and concluding from the screening that it failed to state a
claim entered final judgment in favor of the defendant, dis‐
missing the suit.
The plaintiff appeals on the ground that 28 U.S.C.
§ 636(c)(1) requires “consent of the parties” for the entry of a
final judgment by a magistrate judge, and in this case only
one party—the plaintiff—consented. Agreeing with the
plaintiff that “consent of the parties” means consent by both
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plaintiff and defendant, the majority opinion orders the
judgment entered by the magistrate judge vacated on the
ground that because the statute uses the singular “party” in
other contexts, the plural “parties” must refer to all the par‐
ties to a case and therefore a magistrate judge can’t enter a
final judgment of dismissal unless the defendant consents—
consents explicitly, even to a judgment in its favor. Yet in
such a case, which is this case, the defendant’s consent can of
course be presumed, the magistrate judge having thrown
out the case against it, as the judge was entitled to do be‐
cause the plaintiff had consented to his adjudicating the
case.
The majority opinion bases its insistence that the defend‐
ant’s consent to dismissal of the case must to be effective be
explicit on concern that a “constitutional problem … would
arise” if the consent of the plaintiff alone were sufficient for
a magistrate judge to screen a complaint. The “constitutional
problem” alleged is that if the statute required only implicit
consent by the defendant this would violate the provision in
Article III, section 1 of the Constitution that “the judicial
Power of the United States, shall be vested in one supreme
Court, and in such inferior Courts as the Congress may from
time to time ordain and establish,” with the “Courts” to be
composed of judges who “shall hold their offices during
good behaviour” and receive salaries that may not be dimin‐
ished. Magistrate judges are not such judges—that is, are not
Article III judges.
Yet we know that litigants may consent to adjudication
by a magistrate judge and that such consent need not be ex‐
press. Wellness Int’l Network Ltd. v. Sharif, 135 S. Ct. 1932,
1947–48 (2015); Roell v. Withrow, 538 U.S. 580, 586–91 (2003).
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The plaintiff in this case consented to adjudication by a mag‐
istrate judge—expressly—and the defendant consented im‐
plicitly, because the adjudication ended the litigation against
the defendant, leaving no possible reason for the defendant
to try to revive the litigation. Whoever heard of a defendant
saying to a district judge or magistrate judge “I know you’ve
dismissed the plaintiff’s case against me, but would you
please reinstate it so that I can file a statement agreeing to
the dismissal?”
A bigger waste of time than sending this case back to the
district court is thus hard to imagine, as well as creating ten‐
sion with the Supreme Court’s rulings in the Wellness and
Roell cases, cited above, that a defendant’s consent to a mag‐
istrate judge’s adjudication of a suit against him need not be
express. To repeat, the defendant’s consent to the magistrate
judge’s exercise of jurisdiction in this case up to and con‐
cluding final judgment can be taken for granted because the
defendant has no interest in having the case continue and
could therefore have no quarrel with the magistrate judge’s
dismissing it, at least where as in this case the dismissal was
a final judgment, precluding a refiling of the complaint. At
this stage of the litigation, the best outcome for the defend‐
ant is for the case simply to be dismissed, and the worst out‐
come would be to allow the case to proceed.
Yet since the majority insists on a remand, though with
no justification that I can see, we can expect that on remand
the magistrate judge will reissue his order, retitled as a
“proposed order,” and a district judge will sign off on it and
the plaintiff will again appeal—placing the case again before
us with nothing for us to do but affirm. Such a waste of time
can be avoided—without any negative consequences for an‐
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yone—simply by interpreting the requirement in 28 U.S.C.
§ 636(c)(1) of “consent of the parties” as satisfied by the
plaintiff’s consenting to a magistrate judge’s exercising ju‐
risdiction at the screening stage and the defendant’s not ob‐
jecting, in which event the defendant’s consent to the proce‐
dure can be presumed at least when, as in this case, the suit
is dismissed; for that outcome will delight the defendant.
If the suit is not dismissed but instead allowed to pro‐
ceed, the defendant will be served and have an opportunity
to defend. Cf. Hains v. Washington, 131 F.3d 1248, 1249 and n.
2 (7th Cir. 1997) (per curiam). If the defendant doesn’t con‐
sent explicitly or implicitly to a magistrate judge’s adjudicat‐
ing the case, the “consent of the parties,” explicit or implicit,
to such adjudication will not have been obtained and the
case will proceed in the ordinary way, with any final deci‐
sion in the district court being made by a district judge (or a
jury) rather than by a magistrate judge.
The majority opinion argues that our Hains decision, cit‐
ed above as authority for the approach I’m advocating, can’t
be reconciled with an earlier decision of our court, Geaney v.
Carlson, 776 F.2d 140 (7th Cir. 1985), which according to the
majority opinion in this case held that a magistrate judge
could enter a final judgment dismissing a case only if both
parties consented. But unlike the present case, Geaney did
not involve initial screening and does not say that the de‐
fendant’s consent to a magistrate judge’s dismissal of a suit
against him during an initial screening can never be pre‐
sumed—and in a case such as this the presumption is ines‐
capable. For why, to return to what seems to me the only
sensible interpretation of the consent requirement, would a
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defendant ever refuse to consent to the dismissal of a suit
against him?
In summary we should affirm, not order a futile remand.
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EASTERBROOK, Circuit Judge, with whom SYKES, Circuit
Judge, joins, dissenting from the denial of rehearing en banc.
I agree with the panel that Hains v. Washington, 131 F.3d
1248, 1249 & n.2 (7th Cir. 1997), conflicts with Geaney v. Carl‐
son, 776 F.2d 140, 142 (7th Cir. 1985), and that one or the oth‐
er must be overruled. The panel overrules Hains, but I think
that Geaney should be the one to go. We should align our‐
selves with Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995),
which holds that an un‐served defendant is not among the
“parties” for the purpose of 28 U.S.C. §636(c), rather than
Henry v. Tri‐Services, Inc., 33 F.3d 931, 933 (8th Cir. 1994),
which holds the opposite.
As the panel sees matters, “parties” in §636(c) means all
persons named in the complaint. That’s linguistically possi‐
ble, though §636(c) works just fine if “parties” means “every
party bound by the judgment” rather than “every party
named in the complaint.” I distinguish between persons
bound by a judgment (in the sense that the person can be
saddled with an adverse decision) and everyone named in a
complaint. Un‐served defendants cannot be adversely affect‐
ed by a judgment. McDonald v. Mabee, 243 U.S. 90, 92 (1917).
The panel opens with a reminder that magistrate judges
lack the tenure and salary protections of Article III (slip op.
3–4) and later uses this as a doubt resolver (slip op. 20). Arti‐
cle III means that only litigants who consent to decision by
an Article I officer (or for that matter a private arbitrator) can
be denied the benefits of an Article III judge. But Coleman
did so consent, and he is the only person adversely affected
by the outcome. See Omni Capital International, Ltd. v. Ru‐
dolph Wolff & Co., 484 U.S. 97, 104 (1987). There’s no constitu‐
tional problem with binding consenting plaintiffs to adverse
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decisions by magistrate judges. Article III does not place a
thumb on the scale against the possibility that “parties” in
§636(c) means “all litigants bound by an adverse judgment.”
A different principle does create a helpful presumption:
the principle that someone named as a defendant does not
become a party until served with process. See Murphy Broth‐
ers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350
(1999). Murphy Brothers arose from a statute providing that
“defendants” have only 30 days to remove cases filed in
state court. 28 U.S.C. §1446(b). That statute starts the time
from each defendant’s receipt of a copy of the complaint
“through service or otherwise”. One defendant got a faxed
copy and did not remove within 30 days of its receipt. The
Justices concluded that this did not matter because only par‐
ties have duties in the litigation, and one does not become a
party until served with process. This approach—that the
number of parties grows as defendants are served—is in‐
compatible with the panel’s approach to §636(c), under
which the number and identity of “parties” is fixed the mo‐
ment the complaint is lodged in the district court.
By the standard of Murphy Brothers, there was only one
“party” when the magistrate judge dismissed Coleman’s
complaint. He consented under §636(c). It follows that the
magistrate judge’s decision was authorized by statute.
The panel’s majority replies that Murphy Brothers inter‐
prets §1446(b) rather than §636(c) and therefore does not
compel us to read the latter statute any particular way. That’s
true enough. Yet Murphy Brothers did not suggest that its
understanding of the role of service in making a defendant a
party depended on anything peculiar to §1446(b). Other cir‐
cuits apply Murphy Brothers beyond §1446(b). For example,
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they have held that un‐served defendants are not parties for
purposes of Fed. R. Civ. P. 54(b), and, by extension, 28 U.S.C.
§1291. See Cambridge Holdings Group, Inc. v. Federal Insurance
Co., 489 F.3d 1356, 1361 & n.1 (D.C. Cir. 2007) (collecting cas‐
es). The panel brushes these decisions aside on the ground
that they, too, do not concern §636(c), but this treats Murphy
Brothers as a sport rather than as the instantiation of a prin‐
ciple. Murphy Brothers reads like a principle applicable to
federal civil procedure, not like dogma good for one statute
only.
For the same reason I find the majority’s opinion unper‐
suasive, I do not adopt the dissent’s view. It is not sound to
say that un‐served defendants have consented—implicitly,
constructively, or in any other way. Decision by a magistrate
judge depends on consent. That consent may be inferred
from action (such as litigating before a magistrate judge
without protest) but must be real, and treating non‐action of
non‐parties as consent dispenses with the need for consent
of any kind. It is the sort of make‐believe that gives the
phrase “legal fiction” its bad odor.
Language in both the majority and the dissent suggests
that this appeal is about whether magistrate judges can dis‐
miss prisoners’ complaints under §1915(e) before defendants
have been served. It is indeed about that, but the decision
has broader scope. The panel holds that a magistrate judge
cannot preside unless all defendants named in the com‐
plaint, plus all plaintiffs, have consented in writing.
Suits may linger in a district court with one or more de‐
fendants un‐served—indeed, with one or more defendants
identified only by pseudonym (for example, a police officer
who is said to have used excessive force in making an ar‐
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rest). Sometimes a defendant’s identity is known but he can’t
be found to be served. For example, prisons don’t want to
reveal the current addresses of former guards, and defend‐
ants who reside abroad can be especially hard to serve.
The suit A v. B & C could go on for years before C is final‐
ly dismissed or discovered to be nonexistent; why can’t A
and B agree in the meantime that their dispute will be re‐
solved by a magistrate judge? It would be weird if, after final
decision, either A or B could have the judgment upset on ap‐
peal—despite having consented under §636(c)—just because
C was never found or served. There’s no constitutional im‐
pediment to consent by A and B; both waived their right to
an Article III judge. But under the majority’s approach every
suit with an un‐served or unknown defendant must be han‐
dled by a district judge even if all of the real litigants prefer a
magistrate judge. That is not sound judicial administration.
Murphy Brothers offers a way to solve this problem.
The panel’s majority dismisses these possibilities (slip op.
15) by suggesting that “parties” in §636(c) may mean only
the plaintiff plus at least one defendant. That comes out of
the blue. The bulk of the majority’s Part II.C is devoted to
contending that “parties” means everyone named in a com‐
plaint. That is a plausible (though I think incorrect) reading.
But the word “parties” cannot possibly mean “plaintiffs plus
one defendant, but not other defendants.” That ad hoc
treatment is disconnected from the opinion’s rationale.
If “parties” means “all named litigants,” then problemat‐
ic examples in multi‐party suits are legion. (1) C moves to
dismiss for lack of personal jurisdiction, and a district judge
grants that motion; A and B then consent to decision by a
magistrate judge. (2) C moves to dismiss under Fed. R. Civ.
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P. 12(c) because of a person‐specific defense such as release,
and a district judge grants that motion; A and B then consent
to decision by a magistrate judge. (3) Same as example (2)
except that C moves to dismiss for improper joinder, because
A v. C has nothing to do with A’s claim against B, and a dis‐
trict judge grants that motion; A and B then consent to deci‐
sion by a magistrate judge. The panel’s decision means that
all of these consents by A and B are invalid, because C, hav‐
ing been named in the complaint, is a “party” who did not
consent. Yet I cannot see why A and B should be forbidden
to advance their own interests by consenting to decision by a
magistrate judge, who may be able to give the case immedi‐
ate attention that a district judge cannot provide.
By using these examples I do not suggest that practical
concerns justify overriding statutory text. But nothing in the
text of §636(c) implies a departure from the principle of
Murphy Brothers, under which “party” status depends on
service. And we know from Devlin v. Scardelletti, 536 U.S. 1
(2002), that people can be “parties” for some purposes while
they aren’t for others. So the fact that defendants are parties
for the purpose of filling the blanks in a summons (which
the panel discusses at slip op. 19) does not tell us that they
are parties under §636(c) too.
All statutory language must be read against background
norms. One norm is that ambiguous statutes should not be
understood to create mischief—losses to some litigants with
no offsetting gains to others (or to society as a whole). De‐
priving litigants of their preferred forum produces losses
with no offsetting gains. Murphy Brothers provides another
norm. When read in light of those norms, §636(c) requires no
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more than the consent of the party or parties who will be
bound by an adverse judgment.
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