Goldstein v. Kelleher

Decision Date29 February 1984
Docket NumberNo. 83-1411,83-1411
Citation728 F.2d 32
Parties15 Fed. R. Evid. Serv. 449 Edna GOLDSTEIN, Plaintiff, Appellant, v. Robert E. KELLEHER, et al., Defendants, Appellees. United States of America, Intervenor.
CourtU.S. Court of Appeals — First Circuit

Skip Short, New York City, with whom Short & Billy, New York City, and John Granara, Medford, Mass., were on brief, for plaintiff, appellant.

James H. Anderson, Boston, Mass., with whom Douglas Danner, and Powers & Hall Professional Corporation, Boston, Mass., were on brief, for defendants, appellees.

Michael F. Hertz, Attorney, Appellate Staff, Civil Division, Department of Justice, Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., Washington, D.C., William F. Weld, U.S. Atty., Boston, Mass., and Peter R. Maier, Attorney, Appellate Staff, Civil Division, Department of Justice, Washington, D.C., were on brief, for intervenor.

Before CAMPBELL, Chief Judge, ROSENN, * Senior Circuit Judge, and BOWNES, Circuit Judge.


Edna Goldstein brought a diversity action in the district court against Dr. Robert Kelleher and the Rockdale Medical Corporation ("Rockdale"). She claimed medical malpractice and lack of informed consent stemming from a breast reduction operation performed by Dr. Kelleher in February 1978. At the trial, it was shown that Dr. Kelleher had repeatedly sliced through a previously undetected tumor in plaintiff's left breast and had completed the operation on both breasts notwithstanding his discovery.

After the surgery, plaintiff refused to undergo conventional medical treatment for cancer, allegedly because the mishap had induced a fear of the medical community. Instead she travelled to Mexico for alternative treatment, including laetrile. In 1981 plaintiff agreed to conventional treatment, but in the intervening three years the cancer had spread throughout her upper body.

Mrs. Goldstein's jury trial was conducted in the District of Massachusetts before a United States magistrate, with the express consent of the parties, as provided for in section 636(c)(3) of the Federal Magistrates Act. 28 U.S.C. Sec. 636(c)(3). The jury rendered a verdict in the form of yes-no responses to certain written questions. These responses indicated findings that Dr. Kelleher was negligent in his treatment of the plaintiff but that his negligence did not cause her injuries or damage. The magistrate (who earlier had directed a verdict on plaintiff's informed consent claim) entered judgment for the defendant. Plaintiff appeals from both the adverse judgment and the denial of her motion for a new trial.


In her reply brief, plaintiff contended for the first time that the consensual trial before the United States magistrate was unconstitutional and therefore a nullity. She urges us to adopt the view of a panel of the Ninth Circuit that section 636(c)(3)'s delegation of power to magistrates to conduct consensual jury and non-jury trials and enter judgments, without de novo review by a district judge, offends Article III of the federal Constitution. Pacemaker Diagnostic Clinic, Inc. v. Instromedix, Inc., 712 F.2d 1305 (9th Cir.1983). However, this panel's decision was recently reversed by the Ninth Circuit sitting en banc, by vote of eight of the eleven judges who sat. Pacemaker, 725 F.2d 537 (9th Cir.1984).

We agree with the en banc decision of the Ninth Circuit and with an earlier decision of the Third Circuit that section 636(c)(3) is not unconstitutional. Wharton-Thomas v. United States, 721 F.2d 922 (3d Cir.1983). As we find little to add to Judge Weis's thorough discussion in Wharton-Thomas, we rely in particular on the reasoning in that case, but with the following observations.

Magistrates--unlike the bankruptcy judges whose expanded jurisdiction was struck down in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982)--are appointed and removed by Article III judges. 28 U.S.C. Sec. 631(a) and (i). Further, all reference of cases to them must be approved by Article III judges and the references may be revoked at any time. 28 U.S.C. Sec. 636(c)(1) & (6). Magistrates are thus in large measure shielded from coercion by the executive or legislative branches and from improper societal influences by the Article III salary and tenure safeguards pertaining to the judges under whose control they serve. The Marathon plurality itself stated, as regards magistrates, that there is "no serious threat that the exercise of the judicial power would be subject to incursion by other branches." 458 U.S. at 79 n. 30, 102 S.Ct. at 2875 n. 30.

There is, nonetheless, one major difference between the authority conferred upon the magistrate here and that conferred in past cases where the Supreme Court has approved the delegation. In past cases the ultimate decisionmaking power remained with the district judge. United States v. Raddatz, 447 U.S. 667, 681, 100 S.Ct. 2406, 2415, 65 L.Ed.2d 424 (1980). See Marathon, 458 U.S. at 83, 102 S.Ct. at 2877. In Raddatz, for example, the magistrate's recommended disposition went to the district judge for de novo consideration and entry of judgment. If the magistrate's authority to enter final judgment here were not limited to cases referred with consent of the parties, we would find this difference troubling indeed.

But insofar as Article III protects individual litigants, those protections can be waived. Cf. Patton v. United States, 281 U.S. 276, 281, 50 S.Ct. 253, 74 L.Ed.2d 854, (1930) (waiver of sixth amendment guarantee of trial by jury). The plaintiff as well as the defendant here voluntarily consented to have this action handled through to judgment by a magistrate. They gave their consent pursuant to procedures designed to insulate this choice from influence by either the district judge or the magistrate. 28 U.S.C. Sec. 636(c)(2).

Raddatz, to the contrary, involved a non-consensual reference to a magistrate. 447 U.S. at 669, 100 S.Ct. at 2409. Similarly Marathon involved a non-consensual determination of a party's state law claim by an Article I bankruptcy judge. As Justice Rehnquist stated, "None of the cases has gone as far as to sanction the type of adjudication to which Marathon will be subjected against its will under the provisions of the 1978 Act." 458 U.S. at 91, 102 S.Ct. at 2881 (Rehnquist, J., concurring) (emphasis added). The only holding supported by a majority of the justices was that the ability of "a Bankruptcy Court to entertain and decide Northern's lawsuit over Marathon's objection was violative of Art. III of the United States Constitution." 458 U.S. at 91, 102 S.Ct. at 2881 (Rehnquist, J., concurring) (emphasis added). We therefore agree with the Third Circuit that Marathon and Raddatz do not go so far as to suggest that a purely consensual reference is unconstitutional even though the magistrate retains the power to enter judgment. Wharton-Thomas v. United States, 721 F.2d at 928. This is especially so where, as previously mentioned, both the reference and the magistrate are under direct control of an Article III court.

The importance of the consensual aspect of the arrangement is emphasized by early Supreme Court decisions upholding consensual grants of authority to masters and referees. Kimberly v. Arms, 129 U.S. 512, 9 S.Ct. 355, 32 L.Ed. 764 (1889); Heckers v. Fowler, 69 U.S. (2 Wall.) 123, 17 L.Ed. 759 (1864). In Heckers v. Fowler the parties to an action in federal district court agreed to refer the case to a referee "to hear and determine the same, and all issues therein, with the same powers as the court ... and that the report of said referee have the same force and effect as a judgment of said court." 69 U.S. (2 Wall.) at 127. The district court ordered the referral and directed "that on filing the report of said referee with the clerk of the court, judgment be entered in conformity therewith, the same as if the cause had been tried before the court." Id. at 127. The Supreme Court rebuffed an attack on the broad reference, stating that the "[p]ractice of referring pending actions is coeval with the organization of our judicial system." Id. at 128. The Court also rejected the argument that a judgment entered by the clerk of the court was invalid. The initial order of the district court had authorized the entry of judgment on the referee's report and hence, "Judgment having been entered without objection, and pursuant to the order of the court and the agreement of the parties, it is not possible to hold that there is any error in the record." Id. at 133.

In Kimberly v. Arms, 129 U.S. at 524-25, 9 S.Ct. at 359-60, the Supreme Court again upheld "reference of a whole case to a master" with "the power to 'decide all the issues between the parties.' " The Court held that the rulings of the master "should have been treated as so far correct and binding as not to be disturbed, unless clearly in conflict with the weight of the evidence upon which they were made." Id. at 525, 9 S.Ct. at 359. Thus the broad consensual reference gave the master the power of decision, with only the degree of review afforded the magistrate's decision by this court in the present case.

In DeCosta v. Columbia Broadcasting System, Inc., 520 F.2d 499 (1st Cir.1975), cert. denied, 423 U.S. 1073, 96 S.Ct. 856, 47 L.Ed.2d 83 (1976), this circuit upheld a broad consensual reference which invested the magistrate with power to decide the case, subject only to district court review for "manifest error." In that case we held that,

From a constitutional viewpoint, we can see no significant difference between arbitration and consensual reference for decision to magistrates. In both situations the parties have freely and knowingly agreed to waive their access to an Article III judge in the first instance .... If it be queried whether the dignity of Article III is being compromised by entering judgments on awards...

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