Direct appeal from two orders of United States Magistrate Edmund Maxwell of the Western District of New York. Dismissed for lack of appellate jurisdiction.
Oakes and Van Graafeiland, Circuit Judges, and Bartels, District Judge.*fn*
This is a direct appeal from two orders of United States Magistrate Edmund Maxwell, of the Western District of New York. Magistrate Maxwell dismissed appellants' complaint*fn1 against three defendants.*fn2 Then, after a jury verdict of "not cause for action"*fn3 against the remaining two defendants was recorded by the clerk of the district court, the magistrate denied appellants' motion for judgment notwithstanding the verdict.*fn4
With the parties' consent, District Judge John T. Curtin originally referred the case to the magistrate for trial with a six-member jury. We will assume that the district court had authority to appoint the magistrate as a special master.*fn5 We will further assume that trial by jury before a magistrate, with the parties' consent, is proper.*fn6 Nevertheless, we decline to consider the merits at this time because this court lacks jurisdiction to hear the appeal. We therefore remand to the district court.
The crucial inquiry is whether a magistrate's orders and rulings must be reviewed and adopted by the referring district court before appellate jurisdiction will lie. The starting point of this inquiry is consideration of the nature of circuit court jurisdiction. It is clear that our jurisdiction must be predicated on a statute. 9 Moore's Federal Practice para. 110.01, at 47 (2d ed. 1975). At first glance, the general statutory grant authorizing appeals from "final decisions of the district courts of the United States," 28 U.S.C. § 1291, appears inapplicable because the magistrate's order is not a decision by a federal district court. This conclusion has been reached by other circuits. See United States v. Reeds, 552 F.2d 170, 171 (7th Cir. 1977) (per curiam); McCall v. Cudd, 544 F.2d 934 (8th Cir. 1976); Swanson & Youngdale, Inc. v. Seagrave Corp., 542 F.2d 1008 (8th Cir. 1976); Reciprocal Exchange v. Noland, 542 F.2d 462, 463 (8th Cir. 1976); United States v. Haley, 541 F.2d 678 (8th Cir. 1974); cf. United States v. Various Documents, Papers and Books of Briggs & Turivas, 278 F. 944 (7th Cir. 1921) (order of Commissioner not directly appealable), cert. denied, 258 U.S. 617, 66 L. Ed. 793, 42 S. Ct. 271 (1922).
However, at least two arguments can be made that the Federal Magistrates Act as it existed at the time of the reference, Pub.L.No. 90-578, §§ 631-39, 82 Stat. 1107-14 (1968), and as it exists today, 28 U.S.C. §§ 631-39, in conjunction with 28 U.S.C. § 1291, sanctions appeals directly from a magistrate's decision.*fn7 Because the Act provides that magistrates "may be assigned . . . . such additional duties as are not inconsistent with the Constitution and laws of the United States,"*fn8 proponents of greater power for magistrates urge that it is not impermissible to empower a magistrate to enter final judgment, at least when the parties have consented and the district court has so ordered in its initial reference.*fn9 Accordingly, final judgments of magistrates would be treated as "final decisions of the district courts," 28 U.S.C. § 1291, making direct appellate review proper.*fn10
We find it unnecessary to address this argument beyond noting that it cannot prevail on the instant facts. Section 636(b) permits "assign[ment]" of "additional duties." Here, the reference by Judge Curtin*fn11 neither explicitly nor implicitly authorized the entry of final judgment by the magistrate,*fn12 and there has never been any consent by the parties to conferral of such authority on the magistrate.
A second theory supporting the finality of proceedings before a magistrate distinguishes between jury and nonjury trials. Assuming the propriety of jury trials before magistrates, see note 6 & accompanying text supra, Rule 58(1) of the Federal Rules of Civil Procedure,*fn13 the argument runs, mandates automatic entry of a jury verdict by the clerk of the referring district court, unless the district judge provides otherwise. In other words, entry of judgment is ministerial only, not requiring any oversight by the district judge. Thus, the verdict would be an appealable "decision of the district court," like any other verdict recorded under Rule 58.
We find this construction of Rule 58 unconvincing. The mandate for automatic entry of judgment by the clerk without court order presupposes a verdict resulting from a judicial proceeding, or at least judicial consideration of the controversy and proceedings before the magistrate prior to the clerk's act.*fn14 If the jury verdict as incorporated into the judgment order were a final decision of the district court, the magistrate's various rulings and orders -- such as the dismissal of the complaint against certain defendants here and the denial of the motion for judgment notwithstanding the verdict, see notes 2-4 & accompanying text supra -- would never be reviewed by the district judge. Thus, there would be no judicial proceeding or even judicial consideration prior to the clerk's entry of judgment in contravention of Rule 58.
District court review after a trial before a magistrate or master is not a meaningless exercise.*fn15 Rather, the procedure comports with the fundamental congressional policy underlying the Magistrates Act -- to aid the courts in their ultimate decisionmaking function.*fn16 Subjecting the acts of magistrates and masters to district court scrutiny also avoids possible constitutional infirmities.*fn17 In addition, such review permits correction of possible error at the earliest time. Thus, an improper verdict may be detected and corrected before appeal.*fn18 Similarly, an erroneous charge to the jury*fn19 or an incorrect ruling of law*fn20 by the magistrate or master can be rectified by ordering a new trial. Finally, not only will review at the district court level often save parties the expense and difficulty of appeal, but it will also give the appellate court the benefit of the district court's reasoned consideration.
We therefore conclude that direct appeal does not lie from trials before magistrates or masters, at least where the federal judge has not authorized entry of final judgment at the time of the reference with the parties' consent.*fn21 The district judge must first consider the magistrate's rulings and orders on motions and objections and then order entry of judgment.*fn22 Absent such review by the district court, the judgment is a nullity and nonappealable.
Here, the district judge did not direct the entry of final judgment. More importantly, he did not review the rulings and orders of Magistrate Maxwell. The authorization of an appeal in forma pauperis with certification of nonfrivolity under 28 U.S.C. § 1915(a), a matter also first referred to the magistrate,*fn23 does not cure these deficiencies. Such authorization and certification do not amount to consideration by the judge of the issues presented on appeal.
Appeal dismissed; judgment vacated; cause remanded for (1) consideration by district judge of the magistrate's denial of motion for judgment notwithstanding the verdict, dismissal of the complaint, and any other legal errors raised during the trial; and (2) entry of ...