Opposition Brief — Labor and Industry Review Commission of Wisconsin, Petitioner v. Tracey Coleman

No. 17-579

In the Supreme Court of the United States

LABOR AND INDUSTRY REVIEW COMMISSION OF THE

STATE OF WISCONSIN,

Petitioner,

v.

TRACEY COLEMAN,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Seventh Circuit

RESPONDENT’S BRIEF IN OPPOSITION

CHARLES A. ROTHFELD

EUGENE R. FIDELL

Counsel of Record

Yale Law School

A

Supreme Court Clinic NDREW J. PINCUS

MICHAEL B. KIMBERLY

127 Wall Street

PAUL W. HUGHES

New Haven, CT 06511

TRAVIS CRUM

(203) 432-4992

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

crothfeld@mayerbrown.com

Counsel for Respondent

i

QUESTION PRESENTED

Whether the Seventh Circuit correctly determined that, under 28 U.S.C. § 636(c), a magistrate

judge lacks authority to enter final judgment when

the unserved defendant has not consented to the exercise of authority by the magistrate judge.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED.......................................... i

TABLE OF AUTHORITIES...................................... iii

STATEMENT ..............................................................1

A. Statutory Background ...................................1

B. Procedural Background .................................4

REASONS FOR DENYING THE PETITION............7

I.

Any Circuit Split Here Does Not Warrant

This Court’s Attention.........................................8

A. There is no square conflict in the

circuits on the question presented. ...............8

B. Even if the courts currently are in

conflict on the question presented, this

Court’s intervention is not warranted. .......11

II. The Question Presented Is Of Little

Practical Significance........................................13

III. The Case Was Correctly Decided Below...........16

A. The text and structure of Section

636(c) support the Seventh Circuit’s

interpretation...............................................16

B. Section 636(c)’s history further

supports the Seventh Circuit’s

interpretation of “parties.”...........................18

C. By requiring the consent of both

parties, the Seventh Circuit properly

avoided a constitutionally problematic

interpretation of Section 636(c). ..................20

CONCLUSION ..........................................................25

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Adkins v. E.I. DuPont de Nemours &

Co.,

335 U.S. 331 (1948)................................................3

Bond v. United States,

564 U.S. 211, 222 (2011) ......................................22

Comm’r v. Bilder,

369 U.S. 499 (1962)..............................................13

Commodity Futures Trading Comm’n v.

Schor,

478 U.S. 833 .........................................................20

Denton v. Hernandez,

504 U.S. 25 (1992)........................................3, 9, 24

Devlin v. Scardelledetti,

536 U.S. 1 (2002)..................................................18

Edward J. DeBartolo Corp. v. Fla. Gulf

Coast Bldg. & Const. Trades

Council,

485 U.S. 568 (1988)..............................................22

Geaney v. Carlson,

776 F.2d 140 (7th Cir. 1985)..................................6

Gomez v. United States,

490 U.S. 858 (1989)..........................................2, 23

iv

TABLE OF AUTHORITIES—continued

Page(s)

Hains v. Washington,

131 F.3d 1248 (7th Cir. 1997)................................6

Henry v. Tri‐Services, Inc.,

33 F.3d 931 (8th Cir. 1994)..................................10

In re Larry’s Apartment, LLC,

249 F.3d 832 (9th Cir. 2001)................................10

Murphy Bros. v. Michetti Pipe

Stringing, Inc.,

526 U.S. 344 (1999)..............................................18

N. Pipeline Const. Co. v. Marathon Pipe

Line Co.,

458 U.S. 50 (1982)................................................21

Neals v. Norwood,

59 F.3d 530 (5th Cir. 1995).................... 8, 9, 10, 11

Peretz v. United States,

501 U.S. 923 (1991)..............................................23

Roell v. Withrow,

538 U.S. 580 (2003)............................................1, 2

Stern v. Marshall,

564 U.S. 462 (2011)..................................20, 21, 22

Thomas v. Union Carbide Agr. Products

Co.,

473 U.S. 568 (1985)..............................................23

v

TABLE OF AUTHORITIES—continued

Page(s)

Webster v. Fall,

266 U.S. 507 (1925)................................................9

Wellness International Network, Ltd. v.

Sharif,

135 S. Ct. 1932 (2015)....................................20, 23

Wilhelm v. Rotman,

680 F.3d 1113 (9th Cir. 2012)............................8, 9

Williams v. King,

875 F.3d 500 (9th Cir. 2017)........................ passim

STATUTES, RULES, AND REGULATIONS

7th Cir. R. 40(e) ...........................................................6

28 U.S.C. § 631 ............................................................2

28 U.S.C. § 636(c) .............................................. passim

28 U.S.C. § 636(c)(1)........................................2, 10, 16

28 U.S.C. § 636(c)(3)..................................................17

28 U.S.C. § 636(c)(4)..................................................17

28 U.S.C. § 1446(b)....................................................18

28 U.S.C. § 1915 ....................................................3, 24

28 U.S.C. § 1915(a)(1) .................................................3

28 U.S.C. § 1915(c) ......................................................3

vi

TABLE OF AUTHORITIES—continued

Page(s)

28 U.S.C. § 1915(e)(2)............................................3, 14

Fed. R. Civ. P. 4(a)(1) ................................................17

Fed. R. Civ. P. 10(a)...................................................17

Fed. R. Civ. P. 56(b)...................................................17

Fed. R. Civ. P. 73(b)(1) ................................................2

Prison Litigation Reform Act of 1995,

Pub. L. No. 104-134, § 804(a), 110

Stat. 1321, 1321–74 (1996) ....................................3

MISCELLANEOUS

125 Cong. Rec. 9,469 (1979) ......................................19

125 Cong. Rec. 16,447 (1979) ....................................19

125 Cong. Rec. 25,342 (1979) ....................................19

Black’s Law Dictionary (9th ed. 2009)......................16

Federal Magistrates Act of 1979:

Hearing on S. 237 Before the S.

Subcomm. on Improvements in

Judicial Machinery of the Comm. on

the Jud., 96th Cong. 71. (1979) ...........................19

H.R. Rep. No. 95-1364 (1978)................................2, 24

vii

TABLE OF AUTHORITIES—continued

Page(s)

N.Y. State Bar Ass’n, Pro Se Litigation

in the Second Circuit, 62 St. John’s

L. Rev. 571 (2012) ................................................15

Stephen M. Shapiro et al., Supreme

Court Practice (10th ed. 2013) .............................13

Christopher Smith, United States

Magistrates in the Federal Courts:

Subordinate Judges (1990) ..................................15

Donna Stienstra, Assistance to Pro Se

Litigants in U.S. District Courts: A

Report on Surveys of Clerks of Court

and Chief Judges (2011) ......................................15

Jefri Wood, Fed. Judicial Ctr., Pro Se

Case Management for Nonprisoner

Civil Litigation (2016)..........................................15

RESPONDENT’S BRIEF IN OPPOSITION

Resolving an intra-circuit conflict, the Seventh

Circuit held that all the parties to a case must consent before a magistrate judge is empowered to enter

final judgment under the Federal Magistrate Act, 28

U.S.C. § 636(c). In this case, the petition for certiorari maintains that the circuits are divided on this

question, that the holding below is wrong, and that

the Seventh Circuit’s rule will lead to a “deluge” of

cases, causing crippling inefficiencies. But petitioner

is wrong on all counts.

In fact, the asserted circuit conflict does not warrant this Court’s attention; that conflict may be illusory, is decades old, and concerns an issue on which

uniformity is not essential. The Seventh Circuit’s

thorough and carefully considered holding is correct,

faithfully applying the language and purposes of the

governing statute. And the issue, in any event, is of

limited practical importance, as the Seventh Circuit’s

rule can be easily and efficiently accommodated by

the district courts. Accordingly, the petition should

be denied.

STATEMENT

A. Statutory Background

1. In the Federal Magistrate Act of 1979 (“the

Act”), Pub. L. No. 96-82, 93 Stat. 643, Congress

sought to “improve access” to the federal courts

(Roell v. Withrow, 538 U.S. 580, 588 (2003)) by expanding the power of magistrate judges to enter final

judgment—so long as the parties consent to the magistrate judges’ exercise of authority.

Magistrate judges are appointed to eight-year

terms by the district courts and lack the Article III

2

guarantees of life tenure and protection against salary decreases afforded to district judges. 28 U.S.C.

§ 631. In general, magistrate judges assist the district courts with “subsidiary matters,” allowing district judges to “concentrate on trying cases.” Gomez

v. United States, 490 U.S. 858, 872 (1989). To this

end, magistrate judges have the authority to enter

final judgment “upon the consent of the parties.” 28

U.S.C. § 636(c)(1). Congress included this consent

provision to protect litigants’ “right to insist on trial

before an Article III district judge” (Roell, 538 U.S. at

588), making consent a “critical limitation” on the

magistrate judges’ exercise of jurisdiction. Gomez,

490 U.S. at 870.

This consent process typically is managed by

clerks of the court, not the district or magistrate

judges themselves. Under Section 636(c)(2), the clerk

notifies the parties if a magistrate judge is available.

If and only if all parties consent will a district or

magistrate judge be notified of the parties’ responses.

Fed. R. Civ. P. 73(b)(1). This proviso protects litigants from subtle coercion to consent to decision of

the case by a magistrate judge that might arise if

district judges were aware that particular litigants

had exercised their right to appear before an Article

III judge. See H.R. Rep. No. 95-1364, at 13-14 (1978).

By contrast, Section 636(b) permits magistrate

judges to act without the parties’ consent, conducting

hearings on certain dispositive motions and providing district judges with proposed findings and recommendations. If a party objects to the magistrate

judge’s report and recommendation on such a matter,

a district judge must review the objected-to portions

of the magistrate judge’s report de novo. H.R. Rep.

No. 95-1364, at 14.

3

2. In this case, respondent filed a complaint pursuant to 28 U.S.C. § 1915, which Congress enacted to

ensure that “no citizen shall be denied an opportunity to commence” a civil action solely because of his or

her poverty. Denton v. Hernandez, 504 U.S. 25, 31

(1992) (quoting Adkins v. E.I. DuPont de Nemours &

Co., 335 U.S. 331, 342 (1948)). This in forma

pauperis (“IFP”) statute allows litigants to avoid filing fees by submitting an affidavit showing that they

are “unable to pay such fees.” 28 U.S.C. § 1915(a)(1).

Upon filing of the affidavit, the United States

pays necessary expenses like printing the record or

preparing a transcript. 28 U.S.C. § 1915(c). But because IFP litigants lack economic incentives to curb

their filings (Denton, 504 U.S. at 31), Congress gave

courts the power to dismiss IFP complaints at any

time if the court determines that “the allegation of

poverty is untrue” or that the action is “frivolous or

malicious,” “fails to state a claim on which relief may

be granted,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C.

§ 1915(e)(2).1 A related statute not implicated here

sets out a similar standard for dismissing prisoner

petitions. See id. § 1915A(b). Nothing in the statutory text or legislative history, however, suggests that

Congress intended to deprive pro se complainants of

their constitutional right to an Article III judge.

1 A previous version of the IFP statute did not contain the “fail-

ure to state a claim” requirement that was used to dismiss respondent’s claim in this case. That requirement was added in

1996. Prison Litigation Reform Act of 1995, Pub. L. No. 104134, § 804(a), 110 Stat. 1321, 1321–74 (1996).

4

B. Procedural Background

1. Respondent Tracey Coleman was fired from

his job for what he alleged were racially discriminatory reasons. In addition to pursuing a Title VII

claim in federal court, respondent filed an administrative complaint with the Equal Rights Division of

petitioner Wisconsin Labor and Industry Review

Commission. In that proceeding, an administrative

law judge dismissed respondent’s complaint for allegedly failing to satisfy a filing deadline. Pet. App.

3a. Respondent then initiated this action against petitioner, alleging that petitioner failed to provide him

with a fair hearing or adequate notice of the impending deadline. Pet. App. 49a.

Pursuant to Section 636(c)(2), respondent sent

the court clerk a form consenting to have a magistrate judge enter final judgment in his case. Even before petitioner could be served or consent to have the

case heard by a magistrate judge, however, a magistrate judge took up the case, determining that respondent’s income qualified him for in forma

pauperis status but ordering him to amend his complaint to clarify the basis for federal jurisdiction. Pet.

App. 45a, 50a. Respondent then filed an amended

complaint, renewing his allegation that petitioner

failed to provide him with adequate notice of deadlines and denied him a fair hearing. But the magistrate judge interpreted respondent’s amended complaint as a request for unemployment benefits and

dismissed the complaint for failure to state a claim.

Id. at 43a-44a. In doing so, the magistrate judge

purported to enter final judgment and informed respondent that he should appeal to the Seventh Circuit, rather than file objections with the district

court. Id. at 44a.

5

2. Respondent appealed to the Seventh Circuit,

which appointed undersigned counsel to argue the

jurisdictional question presented here. Pet. App. 2a.

On appeal, respondent argued that Section 636(c)

denied the magistrate judge jurisdiction to enter final judgment without both parties’ consent. Although

petitioner had not participated in the district court,

it filed an opposition brief, arguing that, given the

frequency of IFP filings, Section 636(c) should be

read to permit magistrate judges to exercise jurisdiction and enter final judgment with the consent of only a single party in IFP cases.

In an opinion authored by Chief Judge Wood, the

Seventh Circuit reversed, holding that both parties’

consent is required under Section 636(c) for the entry

of final judgment by a magistrate judge. Pet. App.

2a. After reviewing the underlying Article III concerns and the history of the IFP statute, the court rejected petitioner’s argument that only a litigant

whose rights will be adversely affected by the district

court’s judgment should count as a “party” that must

consent under the Act. Id. at 10a. The court observed

that dismissals for failure to state a claim under Section 1915(e)(2)(B)(ii)—such as that ordered by the

magistrate judge in this case—go to the merits of a

complaint and therefore have res judicata effect on

both parties. Pet. App. 14a. The court also rejected

the argument, made by Judge Posner in dissent, that

a defendant’s consent to resolution of the case by a

magistrate judge could be implied in the circumstances here, noting that a finding of implied consent

requires some action by the defendant. Id. at 16a.

The court further explained that the word “parties” generally means all of the named parties to a

case and that, unlike in the cases cited by Judge

6

Easterbrook’s dissent from the denial of rehearing en

banc, the context of Section 636 suggests that “parties” includes those “on both sides of the ‘v.’” Id. at

22a. In addition, the court expressed concern about

“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.” Id. at 24a. To “la[y] to rest” that

constitutionally troubling result, the court interpreted Section 636(c) to require that “all parties consent.”

Ibid.

In so holding, the court below resolved an intracircuit conflict. In Geaney v. Carlson, 776 F.2d 140,

142 (7th Cir. 1985), the Seventh Circuit had held

that a magistrate judge lacks authority to enter final

judgment without the consent of unserved defendants. By contrast, in Hains v. Washington, 131 F.3d

1248, 1249 n.2 (7th Cir. 1997) (per curiam), the court

had held that magistrate judges do not need the consent of unserved defendants to dismiss IFP complaints filed by prisoners. In the decision below, the

Seventh Circuit found these precedents irreconcilable and overruled Hains. Pet. App. 26a.

Judge Posner dissented from the panel opinion,

reasoning that the court should simply presume the

defendant’s consent because petitioner would have

consented to the exercise of jurisdiction had it known

that the magistrate judge would dismiss the complaint against it. Pet. App. 31a. In the circumstances

of this case, Judge Posner regarded a remand to address the jurisdictional issue as a “waste of time.”

Ibid.

Because the panel overruled a circuit precedent,

see 7th Cir. R. 40(e), the opinion was circulated to

the en banc court, which denied rehearing. Judge

7

Easterbrook, joined by Judge Sykes, dissented from

the denial of rehearing en banc. Rather than adopt

either petitioner’s suggestion that paid and IFP cases

be treated differently or Judge Posner’s impliedconsent theory, Judge Easterbrook advocated a

bright-line rule: in his view, a litigant is a party for

purposes of the Section 636(c) consent requirement

only after it has been served with process. Pet. App.

34a. Failure to serve petitioner in this case, Judge

Easterbrook reasoned, meant that it was not a party

and that the magistrate judge could dismiss the

complaint on the merits at the screening stage.

Because petitioner did not file a timely motion to

stay the issuance of the mandate, the Seventh Circuit remanded the case to the district court. There,

the magistrate judge restyled his order as a report

and recommendation. Report and Recommendation,

Coleman v. Dep’t of Labor Review Comm’n, No. 15cv-00984 (E.D. Wis. July 11, 2017), ECF No. 22. But

before the district court could act or the time to file

objections lapsed, the Seventh Circuit recalled the

mandate at petitioner’s request so that it could seek

this Court’s review. Order, Coleman, No. 15-cv-00984

(E.D. Wis. July 17, 2017), ECF No. 27.

REASONS FOR DENYING THE PETITION

In its petition for certiorari, petitioner has abandoned the argument it relied upon below. Instead, it

advances both Judge Posner’s implicit-consent theory

and Judge Easterbrook’s very different service-ofprocess bright-line rule. Pet. 11. These theories—

which petitioner does not even attempt to reconcile—

rest on misunderstandings of this Court’s doctrine

and were properly rejected by the court below. They

do not merit this Court’s review.

8

I.

Any Circuit Split Here Does Not Warrant

This Court’s Attention.

In seeking review, the petition contends principally that the circuits are in conflict on the question

presented, identifying two decisions that petitioner

describes as inconsistent with the holding below. Pet.

9-11. But the first of these decisions, Neals v. Norwood, 59 F.3d 530 (5th Cir. 1995), differs from this

case in material respects—and there is reason to believe that any conflict with Neals, even assuming

that one exists, would resolve itself without this

Court’s intervention. And the second decision invoked by petitioner, the Ninth Circuit’s ruling in

Wilhelm v. Rotman, 680 F.3d 1113 (9th Cir. 2012),

did not resolve the issue here at all. In any event,

since the petition was filed, the Ninth Circuit published a decision expressly adopting the Seventh Circuit’s approach. Williams v. King, 875 F.3d 500 (9th

Cir. 2017). This purported conflict does not call for

consideration by this Court.

A. There is no square conflict in the circuits on the question presented.

In asserting that the circuits are in conflict, petitioner centrally relies on the Fifth Circuit’s decision

in Neals. Neals, however, differed in material respects from this case. It involved the dismissal of a

“frivolous” prisoner petition under a prior version of

the IFP statute, which did not contain the “failure to

state a claim language” upon which the magistrate

judge relied to dismiss respondent’s complaint here.

59 F.3d at 531.

That distinction was of key importance to the

majority below. In response to Judge Easterbook’s

opinion dissenting from the denial of rehearing, the

9

Seventh Circuit carefully analyzed the res judicata

impact of dismissal for failure to state a claim under

Section 1915(e)(2)(B)(ii), observing that such a dismissal is a ruling on the merits that binds both parties (see Pet. App. 11a-14a) and that “if both parties

are bound, then both must consent to the assignment

of the case to the magistrate judge.” Id. at 15a. In

contrast, as this Court held in Denton v. Hernandez,

a dismissal for frivolousness—like that at issue in

Neals—is not a “dismissal on the merits” for res judicata purposes. 504 U.S. at 32. Given these important

differences, it is not at all apparent that the Fifth

Circuit would disagree with the holding in this case

if presented with the same facts, even given the decision in Neals. This is not a square conflict calling for

resolution by this Court.

In an attempt to manufacture a circuit split, petitioner also asserts that the Ninth Circuit’s decision

in Wilhelm is in conflict with the holding below. But

as petitioner candidly concedes, Wilhelm actually

does not speak to this issue at all. Pet. 10 (acknowledging that the Ninth Circuit reached its result

“without discussing whether an unserved defendant

is a ‘part[y]’ under Section 636(c)”). Rather, that decision analyzed whether a prisoner needed to consent

to have his case heard by the specific magistrate

judge who dismissed it, instead of a magistrate judge

generally. 680 F.3d at 1119. In a footnote, the Ninth

Circuit mentioned that the defendants in Wilhelm

had not been served, but failed to discuss that fact’s

legal significance. Id. at 1118 n.3. That observation

hardly qualifies as a holding on the question presented here. See Webster v. Fall, 266 U.S. 507, 511

(1925) (“Questions which merely lurk in the record,

neither brought to the attention of the court nor

ruled upon, are not considered as having been so de-

10

cided as to constitute precedents.”); accord In re Larry’s Apartment, LLC, 249 F.3d 832, 839 (9th Cir.

2001).

And in any event, the Ninth Circuit held just last

month that “28 U.S.C. § 636(c)(1) requires the consent of all plaintiffs and defendants named in the

complaint—irrespective of service of process—before

jurisdiction may vest in a magistrate judge to hear

and decide a civil case.” Williams, 875 F.3d at 501.

The Ninth Circuit reached this result based on the

“legal meaning of the term” “parties.” Id. at 503. In

so holding, the Ninth Circuit expressly confirmed its

“agree[ment] with the Seventh Circuit’s sound reasoning” and “extensive analysis” in this case. Id. at

504.

The

Ninth

Circuit

also

faulted

“the Fifth Circuit [for] not explain[ing] the basis for

its contrary holding” in Neals. Id. at 505.2 In light of

Williams, petitioner cannot plausibly contend that

the Seventh and Ninth Circuits are in conflict.

It should be added that, although identified by

petitioner as being on the same side of the alleged

circuit split as the Seventh Circuit (see Pet. 10-11),

the Eighth Circuit’s decision in Henry v. Tri‐Services,

Inc., 33 F.3d 931 (8th Cir. 1994), also is beside the

point here, as it involved a default judgment entered

against an unserved defendant. Because petitioner

has sought review of Section 636(c)’s application to

IFP cases at the screening stage, which by definition

does not involve a judgment adverse to a defendant,

Henry is outside the scope of the question presented.

In addition, the Ninth Circuit criticized Judge Posner and

Judge Easterbrook for failing to give sufficient weight to the

“language employed in the statute.” Id. at 504 n.2.

2

11

B. Even if the courts currently are in conflict on the question presented, this

Court’s intervention is not warranted.

There is no square conflict in the circuits on the

question presented here. But even if Neals is thought

to be in real tension with the decision below, the

Fifth Circuit may well reconsider its Neals holding in

light of the Seventh and Ninth Circuits’ recent decisions—and that tension, in any event, concerns an

issue on which there is no need for national uniformity. It need not concern this Court.

1. The Fifth Circuit’s decision in Neals is barely

reasoned: it consists of only two sentences of analysis

on the relevant question. 59 F.3d at 532. Indeed, the

Ninth Circuit remarked that the Fifth Circuit

reached its result in Neals “[w]ithout explanation.”

Williams, 875 F.3d at 505. In light of the “sound reasoning” (id. at 504) and “thoughtful opinions” (Pet.

21) in this case, the Fifth Circuit might well reconsider its view.

This is especially so given that Neals was neither

briefed nor argued by counsel. Indeed, in the five circuit court cases discussed above that bear on this

question, petitioner’s argument failed in the three

where the issue was briefed and prevailed in the two

where it was not.3 Briefing thus clearly makes a dif3 The need for a defendant’s consent to magistrate judge juris-

diction was briefed in Coleman, Henry, and Williams, but not in

Neals or Wilhelm. See Appellant’s Opening Brief; Brief of California as Amicus Curiae; Appellant’s Reply Brief, Williams, 875

F.3d 500 (No. 15-15259); Appellant’s Opening Brief; Brief of

California as Amicus Curiae; Appellant’s Reply Brief, Wilhelm,

680 F.3d 1113 (No. 11-16335); Brief of Appellant, Neals, 59 F.3d

540 (No. 95-10209); Brief of Defendant-Appellant Tri-Services,

Ltd.; Supplemental Brief of Plaintiffs-Appellees; Reply to Plain-

12

ference on this complex jurisdictional question, and

the Fifth Circuit should be given the opportunity to

reconsider this issue with the benefit of counseled

argument.

The history of the intra-circuit conflict in the

Seventh Circuit also demonstrates why review is not

needed and how a circuit split here might resolve itself. Judge Easterbrook sat on both Geaney and

Hains, but acknowledged their inconsistency in his

dissent below. Pet. App. 34a. If Judge Easterbrook

can change his opinion on this issue, the Fifth Circuit surely can reconsider its two-sentence analysis

without this Court’s intervention.

Moreover, even by petitioner’s count, fewer than

a third of the circuits have weighed in on this issue,

even though the alleged circuit split has existed since

1995. In these circumstances, there is no reason to

preempt other circuits from weighing in on the question should it arise in their jurisdictions.

2. In addition, even if it is assumed that there

will be a real and persistent conflict in the circuits on

the issue presented, review by this Court still would

not be warranted. Recall that the Seventh Circuit

decided Geaney in 1985 and Hains in 1997. District

courts in the Seventh Circuit nevertheless managed

their dockets notwithstanding an irreconcilable twodecade intra-circuit conflict between these decisions.

This history strongly suggests that the divergent approaches on the issue here are tolerable. The asserted conflict between the circuits itself is likewise

stale, and a “stale conflict sometimes may suggest

that the disagreement is not a recurring and imtiffs-Appellants’ Supplemental Brief by Defendant-Appellant

Tri-Services, Ltd., Henry, 33 F.3d 931 (No. 93-2907).

13

portant one.” Stephen M. Shapiro et al., Supreme

Court Practice 248 (10th ed. 2013).

The unsuitability of this case for review and the

insignificance of any conflict in the circuits on the

question presented (if such a conflict is thought to exist) is further confirmed by recognition of the issue’s

unimportance as a practical matter. Of course, it is

important that courts know what rule governs the

cases before them. But which of the possible approaches is taken on the issue here will affect the

outcome of few cases: there simply is no evidence of a

“need for a uniform rule on the point.” Comm’r v.

Bilder, 369 U.S. 499, 501 (1962).

II. The Question Presented Is Of Little Practical Significance.

In nevertheless seeking review, petitioner maintains that the Seventh Circuit’s holding “will burden

district courts” and produce “an obvious ‘waste of

time’ for busy federal courts.” Pet. 17. But that simply is not so.

In fact, the decision below will not have any significant impact on district courts. Thus, although petitioner asserts that requiring district judges to review IFP complaints at the screening stage will

crowd district dockets with a “deluge” of IFP cases

(Pet. 18), it cites only five cases to support that assertion. Id. at 17-18.

And even when the rule announced below does

apply, it will not lead to “congested civil dockets in

the federal courts.” Pet. 19 (citation and internal

quotation marks omitted). In accordance with the decision below, a district court may choose between two

options in addressing cases that are referred to magistrate judges: it may require service of process on

14

previously unserved defendants, or it may have a

district court judge review magistrate recommendations for the dismissal of IFP complaints. Neither

would impose a significant burden.

If the first option is chosen, States and other defendants that are not currently being served will be

served and given the opportunity to consent (or not)

to the magistrate judge. But this will not require the

defendant to respond to the complaint; all the defendant will have to do is decide whether to consent

to the magistrate judge’s role. States can easily develop systems for granting or withholding such consent in categories of cases (such as those filed IFP) as

a matter of course. Private defendants also can

choose for themselves whether or not their cases will

be resolved by a magistrate or district court judge.

In the alternative, district courts may choose to

have district court judges review IFP complaints prior to dismissal. This would be akin to the report and

recommendation process and would be similarly nondisruptive. A number of factors support this conclusion.

First, the standard for screening IFP complaints

is easily administered, meaning review will not create significant additional work for district court

judges. A district court judge may dismiss an IFP

complaint based on simple statutory guidelines: if

“the allegation of poverty is untrue”; the action or

complaint “is frivolous or malicious”; the action or

complaint “fails to state a claim on which relief may

be granted”; or the action or complaint “seeks monetary relief from a defendant who is immune from

such relief.” 28 U.S.C. § 1915(e)(2).

15

Second, district court judges still can be assisted

in the resolution of IFP cases by magistrate judges

and pro se law clerks (who often work for the clerk of

the court). A significant number of judges already

use magistrate judges and pro se law clerks to assist

in handling the pro se caseload. Donna Stienstra et

al., Fed. Judicial Ctr., Assistance to Pro Se Litigants

in U.S. District Courts: A Report on Surveys of Clerks

of

Court

and

Chief

Judges

29

(2011),

https://www.fjc.gov/sites/default/files/2012/ProSeUSD

C.pdf (finding that district judges send 31.1% of prisoner pro se cases and 24.6% of pro se non-prisoner

cases to pro se law clerks for management and 75.4%

refer pretrial matters in pro se cases to magistrate

judges); see also Christopher Smith, United States

Magistrates in the Federal Courts: Subordinate

Judges 61 (1990) (magistrate judge workloads are

“designed for flexible utilization by district judges according to the needs of their respective districts”).

Pro se law clerks do the bulk of review where they

are used. Jefri Wood, Fed. Judicial Ctr., Pro Se Case

Management for Nonprisoner Civil Litigation 31-36

(2016),

https://www.fjc.gov/sites/default/files/2017/

Pro_Se_Case_Management_for_Nonprisoner_Civil_L

itigation.pdf.

In the Southern District of New York, for example, a “pro se law clerk [reviews the complaint and

then] forwards the case file to the judge assigned

with a written recommendation with regard to in

forma pauperis status, attorney assignment, the underlying merits, and possible consolidation.” Comm.

on Fed. Courts of the N.Y. State Bar Ass’n, Pro Se

Litigation in the Second Circuit, 62 St. John’s L. Rev.

571, 578 (2012). This system has proven to be quite

efficient: the average pro se case in that district is

pending for only twenty-seven days. Ibid. It thus is

16

not likely that the Seventh Circuit’s rule “will burden

district courts by slowing down the [IFP] screening

process.” Pet. 17.

III.

The Case Was Correctly Decided Below.

Perhaps because it is impossible to make a serious case that the issue here is one of great practical

importance, petitioner directs the bulk of its attention to the merits of the holding below. Pet. 11-17.

But here, too, it is wrong: The Seventh Circuit’s decision is supported by Section 636(c)’s text, structure,

and legislative background, as well as by the constitutional considerations that govern the construction

of statutes.

A. The text and structure of Section 636(c)

support the Seventh Circuit’s interpretation.

Section 636(c) empowers magistrate judges to enter final judgment “upon the consent of the parties.”

The question here, then, is whether an unserved defendant is a “part[y]” whose consent is needed for the

magistrate judge to lawfully enter final judgment.

The better reading is that an unserved defendant is a

party, for several reasons.

First, in ordinary usage, the word “party” encompasses both plaintiffs and defendants. A “party” is

generally defined for legal purposes as “[o]ne by or

against whom a lawsuit is brought.” Black’s Law Dictionary 1232 (9th ed. 2009). As the Ninth Circuit explained in Williams, “[t]he term ‘party’ or ‘parties’ is

a legal term of art” that had this same definition

when Congress enacted Section 636(c), making “all

plaintiffs and defendants named in the complaint

* * * ‘parties’ within the meaning of § 636(c)(1)”—and

“Section 636(c)(1) * * * requires consent of all par-

17

ties—not a subset of them—for jurisdiction to vest in

the magistrate judge.” 875 F.3d at 503-04.

Second, this common-sense understanding is reinforced by Section 636(c)’s structure. In crafting

Section 636(c), Congress differentiated between “parties” and “party,” using the plural whenever consent

is discussed but using the singular when referring to

other issues (e.g., “an aggrieved party” may appeal,

28 U.S.C. § 636(c)(3); “any party” may move to have

the district court “vacate a reference of a civil matter

to a magistrate judge,” 28 U.S.C. § 636(c)(4)). In fact,

the term “parties” is repeatedly used in the Federal

Rules of Civil Procedure in contexts where it is clear

that treating the plaintiff as the only “party” would

defeat the point of the rule. See, e.g., Fed. R. Civ. P.

4(a)(1) (“A summons must * * * name the court and

the parties * * * .”); Fed. R. Civ. P. 10(a) (“The title of

the complaint must name all of the parties.”); Fed. R.

Civ. P. 56(b) (“[A] party may file a motion for summary judgment at any time until 30 days after the

close of all discovery”); see also Pet. App. 17a. Thus,

as the Seventh Circuit explained, it is apparent that

“Congress used the singular when it meant one party, and it used the plural when it meant all parties.”

Pet. App. 24a.

Third, Section 636(c)(2) requires the clerk of the

court to “notify the parties” about their option to consent to a magistrate judge at “the time the action is

filed.” This statutory language clearly contemplates

a single-step consent procedure in which plaintiffs

and defendants consent simultaneously; in contrast,

petitioner proposes a multi-step process in which the

clerk notifies the plaintiff, records his or her consent,

assigns the case to a magistrate judge, and then re-

18

peats this process for the defendant once it has been

served.

And although the definition of “party” may vary

with context (see Devlin v. Scardelledetti, 536 U.S. 1,

10 (2002)), the context here does not support a departure from the ordinary understanding of the term.

On that point, Judge Easterbrook was incorrect in

relying on Murphy Bros. v. Michetti Pipe Stringing,

Inc., 526 U.S. 344 (1999), for a general presumption

that unserved defendants are not parties. See Pet

App. 35a-36a. That case concerned a removal statute, which provided that the timeliness of a petition

for removal would be determined by “the receipt by

the defendant, through service or otherwise,” of the

complaint. 28 U.S.C. § 1446(b). Murphy Brothers

therefore stands for the proposition that, when the

statutory text identifies service of process as the dividing line, a defendant is a party only when he or she

has been served. Here, by contrast, Section 636(c)

does not make service of process the touchstone.

B. Section 636(c)’s history further supports

the Seventh Circuit’s interpretation of

“parties.”

Introduced in the 95th Congress and passed by

the 96th Congress, Section 636(c) was enacted as

part of the Federal Magistrate Act of 1979, Pub. L.

No. 96-82, 93 Stat. 643. Throughout the legislative

process, the requirement of unanimous consent to

decision by a magistrate judge was a crucial component of the bill. This background suggests that Section 636(c) means what it says: all parties must consent.

Perhaps most important, Congress viewed consent as critical to preserving the bill’s constitutional-

19

ity. The House sponsor of the bill, Rep. Kastenmeier,

made repeated statements during House debates to

the effect that consent was a priority for legislators

in considering the law. As he reassured colleagues:

“[T]his is entirely based on consent, the consent of

both parties for the expanded jurisdiction. We are

not imposing a magistrate on anybody. We are doing

that partly to meet any constitutional challenge.”

Hearing on S. 1613 and H.R. 13511 Before the H.

Comm. on Rules, 95th Cong. 4 (1978) (statement of

Rep. Kastenmeier) (emphasis added); see also 125

Cong. Rec. 16,447 (1979) (statement of Rep.

Kastenmeier) (repeating that “both parties must consent to trial before a magistrate and must consent to

entry of final judgment by the magistrate for the district court” (emphasis added)). Similarly, the legislation’s primary Senate sponsor, Sen. DeConcini, described the Act as authorizing “magistrates to enter

dispositive judgments in civil cases if designated to

do so by the district court and if all parties consent

in advance.” 125 Cong. Rec. 9,469 (1979) (emphasis

added).

In addition, Congress was especially concerned

with maintaining anonymity in consent. To further

this end, Section 636(c)(2)’s “blind consent” provision

protects litigants who exercise their right to a hearing in front of a district court judge and who otherwise might face the “possibility of coercion.” 125

Cong. Rec. 25,342 (1979). The Department of Justice

shared this view, supporting inclusion of the blind

consent provision to address “any apprehension”

about “full, uncoerced consent by the parties.” The

Federal Magistrates Act of 1979: Hearing on S. 237

Before the S. Subcomm. on Improvements in Judicial

Machinery of the Comm. on the Jud., 96th Cong. 71.

(1979) (statement of Daniel J. Meador, Ass’t Att’y

20

Gen.). But petitioner’s approach, in which parties

consent seriatim, often would make anonymity impossible.

C. By requiring the consent of both parties, the Seventh Circuit properly

avoided a constitutionally problematic

interpretation of Section 636(c).

The language and history of Section 636(c) are

thus clear enough. But if there is any doubt about

the answer to the question here, the issue is resolved

by the constitutional avoidance doctrine: petitioner’s

approach would raise grave doubts about the constitutionality of Section 636(c) under Article III.

1. Magistrate judges “do not enjoy the protections

of Article III” (Wellness International Network, Ltd.

v. Sharif, 135 S. Ct. 1932, 1938 (2015)), as they have

neither life tenure nor a guarantee against salary

decreases. Nor are magistrate judges appointed by

the President and confirmed by the Senate.

Constitutional concerns are implicated when

such non-Article III adjudicators exercise “essential

attributes of judicial power.” Commodity Futures

Trading Comm’n v. Schor, 478 U.S. 833, 851. And

the Court has explained that the “entry of a final,

binding judgment” is “the most prototypical exercise

of judicial power,” and typically must be reserved for

an Article III court. Stern v. Marshall, 564 U.S. 462,

494 (2011). A magistrate judge’s entry of final judgment thus raises Article III concerns.

The Court has identified two constitutional problems that arise when a non-Article III adjudicator

improperly exercises Article III power.

21

First, the exercise of Article III authority by a

non-Article III adjudicator threatens the integrity of

the judiciary. “The Framers considered it essential

that ‘the judiciary remain[] truly distinct from both

the legislature and the executive,’” and that “‘there is

no liberty if the power of judging be not separated

from the legislative and executive powers.’” Stern,

564 U.S. at 483. Thus, Article III serves as an “inseparable element of the constitutional system of

checks and balances” that “defines the power and

protects the independence of the Judicial Branch.”

Id. at 482 (quoting N. Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 58 (1982) (plurality

opinion)).

The Court has explained that the Constitution’s

separation of powers is threatened even when the incursion on Article III appears de minimis in individual cases. “‘[I]llegitimate and unconstitutional practices get their first footing * * * by silent approaches

and slight deviations from legal modes of procedure,’”

so that even “challenges that may seem innocuous at

first blush” may “compromise the integrity of the

system of separated powers and the role of the Judiciary in that system.” Stern, 564 U.S. at 503 (internal quotation marks omitted). In fact, this Court in

Stern drew precisely that distinction, explaining

that, although bankruptcy judges were not “barred

from * * * proposing findings of fact and conclusions

of law,” district courts had to nonetheless “finally decide[]” cases. Id. at 502. The Seventh Circuit’s interpretation of Section 636(c) thus avoids an unconstitutional encroachment on the judiciary.4

4 Judge Posner’s dissent below, in emphasizing practicality and

labeling it a “waste of time” for district judges to be given a

22

Second, “[t]he structural principles secured by

the separation of powers protect the individual as

well.” Stern, 564 U.S. at 483 (quoting Bond v. United

States, 564 U.S. 211, 222 (2011)). By specifying the

“defining characteristics of Article III judges” (Stern,

564 U.S. at 483), Article III protects individuals by

ensuring that those judges are freed from external

influences and are able to render impartial judgments.

Here, Judge Posner’s dissent misapprehends the

issue. Although a defendant would of course consent

to a magistrate judge’s entry of final judgment in its

favor (see Pet. App. 31a), the proper question is

whether a defendant would consent to the magistrate

judge’s adjudication without knowing how the magistrate would rule. This is the importance of the consent provision: it protects those litigants who may

wish to exercise their constitutional right to have

their case tried by an Article III judge—because,

perhaps, they think a magistrate judge will be too

generous to plaintiffs.

2. Given these concerns, the doctrine of constitutional avoidance counsels in favor of requiring both

parties’ consent before entry of final judgment. It is

the Court’s usual approach that, “where an otherwise

acceptable construction of a statute would raise serious constitutional problems, the Court will construe

the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast

Bldg. & Const. Trades Council, 485 U.S. 568, 575

(1988). Under this principle, Section 636(c) should be

more prominent role (Pet. App. 31a-33a), gives improperly short

shrift to these Article III concerns.

23

interpreted to require the consent of both parties—

including an unserved defendant—prior to entry of

final judgment, so as to avoid any threat to the integrity of the judiciary and the rights of the individual litigants.

The Court’s precedents have made clear the importance of consent in authorizing non-Article III adjudicators to perform tasks that would otherwise be

the province of Article III judges. Although Congress

has “enlarged the magistrate’s jurisdiction over civil

and criminal trials,” a “critical limitation on this expanded jurisdiction is consent.” Gomez, 490 U.S. at

869-70. In fact, consent is consistently recognized as

grounds for resolving constitutional concerns regarding adjudication by non-Article III judges. See Peretz

v. United States, 501 U.S. 923, 932 (1991) (explaining

that consent resolves concerns about magistrate supervision of voir dire); Thomas v. Union Carbide Agr.

Products Co., 473 U.S. 568, 584 (1985) (“Congress

may not vest in a non-Article III court the power to

adjudicate, render final judgment, and issue binding

orders * * * without consent of the litigants, and subject only to ordinary appellate review.”) (emphasis

added).

As the Court recently explained in Wellness International Network, Ltd. v. Sharif, litigant consent

permits Article I judges to adjudicate claims that

would otherwise be prohibited under Stern. 135 S.

Ct. at 1945. “Adjudication based on litigant consent

has been a consistent feature of the federal court system since its inception” (id. at 1947), and “allowing

Article I adjudicators to decide claims submitted to

them by consent does not offend the separation of

powers so long as Article III courts retain supervisory authority over the process.” Id. at 1944.

24

The same principle applies here. By construing

Section 636(c) to require the consent of both parties,

the decision below avoids any constitutional concerns

associated with a magistrate judge exercising Article

III power.

****

There is one additional problem with petitioner’s

approach. It appears to advocate a special, adverse

rule for pro se and IFP litigants. See Pet. i (question

presented directed at pro se plaintiffs); id. at 1 (“This

case is about whether magistrate judges can continue to dispose promptly of meritless lawsuits filed by

pro se litigants * * *.”). But this submission runs

strongly counter to the policy of the governing federal statutes. Section 1915, which authorizes IFP filings, was designed to expand access to the federal

courts for the indigent. Denton, 504 U.S. at 31. Nothing in the language of Section 636 or of the IFP statute suggests that the constitutional concerns outlined above are inapplicable to the indigent, or that

Congress intended to ease the burden of processing

IFP complaints only if IFP litigants surrender their

Article III protections. To the contrary, Congress was

concerned that district court judges would coerce disfavored litigants—including, presumably, those proceeding IFP—into consenting to adjudication before a

magistrate judge; it thus crafted the unanimous- and

blind-consent provisions to avoid that result. See

H.R. Rep. No. 95-1364, at 13-14 (1978) (“This language [in Section 636(c)(2)] is an important safeguard against what has been characterized as the

‘velvet blackjack’ problem. Some judges may be

tempted to force disfavored cases into disposition before magistrates by intimations of lengthy delays

25

manufactured in district court if the parties exercise

their right to stay in that court.”).

Put simply, petitioner seeks to create one system

of review for those who can afford Article III’s protections and another for those who cannot. Without

benefit of counsel, pro se litigants—who often proceed IFP—are unlikely to appreciate the full significance of those constitutional protections. The decision below avoids that constitutionally troubling result.

CONCLUSION

The petition for a writ of certiorari should be denied.

26

Respectfully submitted.

CHARLES A. ROTHFELD

EUGENE R. FIDELL

Counsel of Record

Yale Law School

Supreme Court Clinic* ANDREW J. PINCUS

MICHAEL B. KIMBERLY

127 Wall Street

PAUL W. HUGHES

New Haven, CT 06511

TRAVIS CRUM

(203) 432-4992

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

crothfeld@mayerbrown.com

Counsel for Respondent

DECEMBER 2017

The representation of respondent by a Clinic affiliated with

Yale Law School does not reflect any institutional views of Yale

Law School or Yale University.

*