Collins v. Foreman

• Decision Date: 22 February 1984
• Docket Number: No. 693,D,693
• Parties: Howard V. COLLINS, Plaintiff-Appellee, and United States of America, Intervenor, v. William FOREMAN, Vincent Pilleters and Terry Warden, Defendants-Appellants. ocket 83-7938.
• Court: U.S. Court of Appeals — Second Circuit

Page 108

729 F.2d 108

Howard V. COLLINS, Plaintiff-Appellee and United States of America, Intervenor, v. William FOREMAN, Vincent Pilleters and Terry Warden Defendants-Appellants.

No. 693, Docket 83-7938.

United States Court of Appeals Second Circuit.

Argued Dec. 12, 1983.

Decided Feb. 22, 1984.

Alfred P. Kremer, Rochester, N.Y., for plaintiff-appellee.

Michael F. Hertz, Atty., Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C. (J. Paul McGrath, Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., Peter R. Maier, Washington, D.C., of counsel), for intervenor.

Nira T. Kermisch, Rochester, N.Y. (John D. Doyle, Rochester, N.Y., of counsel), for defendants-appellants.

Before FEINBERG, Chief Judge, and OAKES and PIERCE, Circuit Judges.

FEINBERG, Chief Judge:

Defendants William Foreman, Vincent Pilleters and Terry Warden appeal from an order of the United States District Court for the Western District of New York, John T. Curtin, Ch. J., denying their motion under Fed.R.Civ.P. 60(b)(4) to vacate a judgment against them secured by plaintiff-appellee Howard V. Collins. The substantive issues on appeal are whether the provision of the Federal Magistrate Act of 1979, 28 U.S.C. Sec. 636(c), that allows a magistrate to try a civil case and enter a final judgment upon the consent of the parties is constitutional and whether appellants' consent to such a trial was obtained improperly. ¹ For reasons given below, we hold that this provision is constitutional and that appellants' consent was valid. Accordingly, we affirm the judgment of the district court.

Incredibly, this appeal grows out of an incident that occurred in February 1975 and was the subject of a complaint under 42 U.S.C. Sec. 1983 filed in the district court later that year against the Sheriff of Monroe County and four deputy sheriffs, employed in the Monroe County Jail. ² For the purposes of this appeal it is not necessary to set forth the facts extensively. It is sufficient to say that the complaint alleged that while appellee Collins was a prisoner in the Monroe County Jail he was severely beaten by police officers, in violation of his constitutional and statutory rights. The case languished until November 1981, when it was tried before a magistrate and a jury. The jury awarded Collins $3,000 in compensatory damages and $60,000 in punitive damages.

Pursuant to 28 U.S.C. Sec. 636(c)(4), appellants appealed from the judgment to the district court, which upheld the magistrate's decision in an opinion filed in April 1983. Appellants then sought leave to appeal to this court, under 28 U.S.C. Sec. 636(c)(5), and in August 1983 we denied leave.

A few days earlier, a panel of the Ninth Circuit had held that section 636(c) was unconstitutional. Pacemaker Diagnostic Clinic, Inc. v. Instromedix, Inc., 712 F.2d 1305 (9th Cir.1983), rev'd in banc, 725 F.2d 537 (9th Cir.1984). As a result of this decision, appellants moved in the district court, under Fed.R.Civ.P. 60(b)(4), to vacate the magistrate's final judgment on the ground that it was "void" because the statute that gave the magistrate jurisdiction was unconstitutional. In November 1983, the district court denied the motion and this expedited appeal followed. The United States has intervened as a party, under 28 U.S.C. Sec. 2403(a), to defend the constitutionality of the challenged provision.

II.

Before addressing the merits of the constitutional argument, we turn to appellants' claim that the trial by the magistrate was improper in a number of other respects. If that were so, there would be no need to consider the constitutionality of section 636(c). Therefore, under well-recognized authority, we should consider the non-constitutional issues first. See Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).

Appellants argue first that there was insufficient compliance with the terms of 28 U.S.C. Sec. 636(c)(2). That section, see note 1, provides that after a district judge has designated a full-time magistrate to conduct civil trials, "the clerk of the court shall, at the time the action is filed, notify the parties of their right to consent to the exercise of such jurisdiction." Appellants point out that since the action here was commenced in 1975, years before enactment of the section in its present form, the clerk of the court did not send such notice when the action was filed or at any subsequent time. Appellants also stress that the notice to them actually came in 1981 from the magistrate, who called the parties and informed them of his availability and asked if they were willing to have the case tried by him. This was followed up by a letter and a subsequent phone call, after which both parties signed a form entitled "Consent to Proceed Before a United States Magistrate."

Appellants argue that the two phone calls and the letter constituted inducement or pressure by the magistrate sufficient to render their consent involuntary. The argument is not persuasive. It takes an uncalled-for leap of imagination to characterize the magistrate's actions as coercion. Similarly without merit is the claim that the notice was defective because it came from the magistrate in 1981 rather than from the clerk in 1975, when the section in question had not yet been enacted. Although the new section applies to proceedings filed before its effective date, cf. White v. Estelle, 556 F.2d 1366, 1368 (5th Cir.1977), it does not render a proceeding a nullity merely for failure to comply with a technical requirement that was not in existence at the time the section was adopted. Moreover, neither claim now urged by appellants was presented to the magistrate or on direct appeal from his decision to the district court.

III.

We turn now to the merits of the constitutional argument. Here, too, there is a preliminary issue that must be considered. Appellee argues that appellants have waived their constitutional claim because they never raised it until after the magistrate had tried the case and ordered the entry of judgment on the jury verdict; Chief Judge Curtin had considered the appeal to the district court, in which appellants raised numerous other issues, and had affirmed the magistrate; and this court had denied leave to appeal. Appellants claim that their motion is timely under Fed.R.Civ.P. 60(b)(4), which, they argue, allows collateral attack "within a reasonable time" on a civil judgment on the ground that it is "void." We accept appellants' contention:

Although the Rule is silent about collateral attack as a method of challenging the validity of a judgment, there can be little doubt that if the judgment is void ... a collateral attack upon the void judgment may be made in any proceeding in any court where the validity of the judgment comes in issue.

7 Moore's Federal Practice p 60.25, at 240 (2d ed. 1983); see Lubben v. Selective Serv. Sys. Local Bd. No. 27, 453 F.2d 645, 649 (1st Cir.1972); Graciette v. Star Guidance, Inc., 66 F.R.D. 424, 426 (S.D.N.Y.1975). In their constitutional challenge, appellants assert that the magistrate lacked subject matter jurisdiction in the underlying case and that the parties could not consent to give him jurisdiction. Because this kind of jurisdictional claim could arguably render the judgment void, appellants may press their constitutional claim on collateral attack. See Graciette, 66 F.R.D. at 426; 7 Moore's Federal Practice p 60.25, at 224.

IV.

Having disposed of these preliminary issues, we proceed to discuss the substance of appellants' constitutional claim. Appellants specifically attack 28 U.S.C. Sec. 636(c)(1), which authorizes magistrates to conduct civil trials and enter final judgments pursuant to the consent of the parties and a reference by the district court. This belated claim is admittedly based upon the decision of a panel of the Ninth Circuit in Pacemaker Diagnostic Clinic, Inc. v. Instromedix, Inc., supra.

Subsequent to the panel's decision in Pacemaker, the Third Circuit reached the opposite conclusion--that section 636(c)(1) is constitutional--in Wharton-Thomas v. United States, 721 F.2d 922 (3d Cir.1983). More recently, the Ninth Circuit, sitting in banc, reversed the Pacemaker panel and held that the consensual reference provision is constitutional. Pacemaker, supra, 725 F.2d 537 (9th Cir.1984) (in banc). All of these opinions relied on the Supreme Court's opinion in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) (plurality opinion), where Justice Brennan, writing for a plurality of four Justices, concluded that section 241(a) of the Bankruptcy Act of 1978, 28 U.S.C. Sec. 1471, impermissibly removed "most, if not all, of 'the essential attributes of the judicial power' from the Art. III district court, and ... vested those attributes in a non-Art. III adjunct." Id. at 87, 102 S.Ct. at 2880. Before analyzing the constitutional arguments, we briefly review the background of the Federal Magistrate Act of 1979 and the Northern Pipeline case.

A. The Magistrate Statutes

The Federal Magistrates Act of 1968, 28 U.S.C. Secs. 631-639 (amended 1976 & 1979), created magistrate positions with an eight-year term of office and empowered the district courts to appoint magistrates to serve their districts. Id. Sec. 631(a), (e). Magistrates were authorized to perform the functions previously carried out by United States commissioners, id. Sec. 636(a)(1), to serve as special masters in civil actions, to assist the district court in the conduct of pretrial and discovery proceedings in civil and criminal actions, to make preliminary review of petitions for habeas corpus and to perform such additional duties as "are not inconsistent with the Constitution and laws of the United States," id. Sec. 636(b).

The 1968 Act provided for a magistrate's removal during his term of office for "incompetency, misconduct, neglect of duty, or physical or mental...