Sick v. City of Buffalo, N. Y.

• Decision Date: 05 April 1978
• Docket Number: D,No. 516,516
• Citation: 574 F.2d 689
• Parties: Joseph SICK, Individually and as parent and natural guardian of Laura Sick, an infant, and Laura Sick, Individually, Appellants, v. CITY OF BUFFALO, NEW YORK, Board of Education of Buffalo, New York, Michael J. Anelli, Riverside High School, James Burrell, Riverside High School, Edmond Maroone and Board of Education, Appellees. ocket 77-7314.
• Court: U.S. Court of Appeals — Second Circuit

Page 689

574 F.2d 689

Joseph SICK, Individually and as parent and natural guardian of Laura Sick, an infant, and Laura Sick Individually, Appellants, v. CITY OF BUFFALO, NEW YORK, Board of Education of Buffalo New York, Michael J. Anelli, Riverside High School, James Burrell, Riverside High School, Edmond Maroone and Board of Education, Appellees.

No. 516, Docket 77-7314.

United States Court of Appeals Second Circuit.

Submitted Dec. 15, 1977.

Decided April 5, 1978.

Barbara M. Sims, Buffalo, N.Y., for appellants.

Rose H. Sconiers, Buffalo, N.Y. (Leslie G. Foschio, Corp. Counsel, City of Buffalo, Buffalo, N.Y., of counsel), for appellees.

Before OAKES and VAN GRAAFEILAND, Circuit Judges, and BARTELS, District Judge. ^*

OAKES, Circuit Judge:

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 ¹ against three defendants. ² Then, after a jury verdict of "not cause for action" ³ against the remaining two defendants was recorded by the clerk of the district court, the magistrate denied appellants' motion for judgment notwithstanding the verdict. ⁴

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. ⁵ We will further assume that trial by jury before a magistrate, with the parties' consent, is proper. ⁶ 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 P 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, 42 S.Ct. 271, 66 L.Ed. 793 (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. ⁷ 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," ⁸ 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. ⁹ 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. ¹⁰

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 ¹¹ neither explicitly nor implicitly authorized the entry of final judgment by the magistrate, ¹² 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, ¹³ 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. ¹⁴ 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. ¹⁵ Rather, the procedure comports with the fundamental congressional policy underlying the Magistrates Act to aid the courts in their ultimate decisionmaking function. ¹⁶ Subjecting the acts of magistrates and masters to district court scrutiny also avoids possible constitutional infirmities. ¹⁷ In addition, such review permits correction of possible error at the earliest time. Thus, an improper verdict may be detected and corrected before appeal. ¹⁸ Similarly, an erroneous charge to the jury ¹⁹ or an incorrect ruling of law ²⁰ 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. ²¹ The district judge must first consider the magistrate's rulings and orders on motions and objections and then order entry of judgment. ²² 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, ²³ 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 judgment in accordance with the district court's conclusions on review.

* Of the Eastern District of New York, sitting by designation.

1 The complaint alleges that appellees unlawfully discriminated against Laura Sick on the basis of her sex by temporarily preventing her participation on the high school boys' track team and by not permitting her to compete in a school track meet.

2 The motion to dismiss was granted on the last day of trial. There is no indication that the district court reviewed the ruling.

3 The judgment on the jury verdict, recorded by the clerk of the district court on October 1, 1976, stated that there was "no cause for action." The amended judgment recorded on October 5, 1976, stated that there was "not cause for action."

4 Appellants' motion for judgment notwithstanding the verdict was denied on October 26, 1976. The denial was recorded by the clerk of the district court on November 9, 1976. Again, there was no review by the district court.

5 Under current 28 U.S.C. § 636(b)(2), which was added to § 636 on October 21, 1976, Pub.L.No. 94-577, § 1, 90 Stat. 2729 (1976), the appointment undeniably would have been proper. This provision permits designation of a magistrate "in any civil case, upon consent of the parties, without regard to the provisions of rule 53(b) of the Federal Rules of Civil Procedure . . . ." Rule 53(b) authorizes reference to a master in jury cases "only when the issues are complicated." The reference here, however, was made on July 21, 1976, and the trial was terminated by October 1, 1976. Both the reference and the trial occurred, therefore, prior to the effective date of the amendment, October 21, 1976. At the time of the reference and the trial, the statute provided in relevant part:

Any district court of the United States, by the concurrence of a majority of all the judges of such district court, may establish rules pursuant to which any full-time United States magistrate, or, where there is no full-time magistrate reasonably available, any part-time magistrate specially designated by the court, may be assigned within the territorial jurisdiction of such court such additional duties as are not...