before you consent to a 9th circuit district court magistrate, read this!
Posted in the Ninth Circuit Court of Appeals Forum
#1 May 22, 2012
BEFORE YOU CONSENT TO A NINTH CIRCUIT DISTRICT COURT U.S. MAGISTRATE JUDGE OR PROCEED VIA A DIRECT REFERRAL TO A MAGISTRATE JUDGE .. PLEASE BE AWARE:
THE NINTH CIRCUIT COURT OF APPEALS DENIES APPELLATE JURISDICTION IF THE U.S. MAGISTRATE LACKED AUTHORITY
Source: Page 101 of Appellate Jurisdiction in the Ninth Circuit (Last Updated in 2009) but made publicly available on the Ninth Circuit website at http://www.ca9.uscourts.gov/guides/appellate_... The Direct Link is here: http://tinyurl.com/cvm26hs
A final judgment entered by a magistrate judge who lacked authority is not an appealable order. Tripati v. Rison, 847 F.2d 548, 548-49 (9th Cir. 1988)(per curiam); cf. Reynaga v. Cammisa, 971 F.2d 414, 415 n.1 & 418 (9th Cir. 1992)(treating attempted appeal as petition for writ of mandamus).
A magistrate judge lacks authority to enter a final judgment absent special designation by the district court, see Tripati, 847 F.2d at 548-49, and the uncoerced consent of the parties. Alaniz v. California Processors, Inc., 690 F.2d 717, 720 (9th Cir. 1982) and Kamakana v. City and County of Honolulu, 447 F. 3d 1172, 1178 n.2 (9th Cir. 2006).
Where a magistrate judge acts without jurisdiction in purporting to enter a final judgment, the magistrate judges lack of jurisdiction deprives this court of appellate jurisdiction. Holbert v. Idaho Power Co., 195 F.3d 452, 454 (9th Cir. 1999)(order)
How would you know what a magistrate's authority is? You probably wouldn't until it came time to appeal a decision and you are informed that the Ninth Circuit lacks jurisdiction to hear your appeal.
I HAVE BEEN THROUGH THIS AND SURVIVED - I HOPE TO HELP OTHERS DO THE SAME.
This specifically applies to ALL PRO SE SECTION 1983 LITIGANTS that are directly referred
to a U.S. Magistrate Judge sua sponte, without notice, via the Order entitled,
"Notice of Reference to a U.S. Magistrate Judge."
Here is an example of this NOTICE: http://tinyurl.com/cyeyb2d
Please note: The language of this order is VERY misleading. There are very specific statutory limitations to what a U.S. Magistrate Judge can hear and rule on without express consent by all the parties. This Order states otherwise. AND if you challenge it as I did, you will be told, as I was, by Judge David O. Carter, that I don't have a right to withhold consent to a Magistrate Judge hearing preliminary matters.
When I argued that this Order is not limited to preliminary matters, I was ignored.
For example, look at the above Notice and note the wording .
" who is authorized to consider preliminary matters and conduct all further
hearings as may be appropriate or necessary." No! See 28 USC §636.
"Thereafter, unless the Magistrate Judge determines that a trial by District Judge is required, the Magistrate Judge shall prepare a report and recommendation and file it with the Clerk of the Court together with proposed findings of fact and conclusions of law where necessary or appropriate " No! See 28 USC §636
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