Wharton-Thomas v. U.S.

Decision Date13 September 1983
Docket NumberA,No. 82-5555,WHARTON-THOMA,82-5555
Citation721 F.2d 922
PartiesJaneppellant, v. UNITED STATES of America, United States Post Office and Pasquale J. Di Francisco, jointly, severally and/or in the alternative, Appellees. . Submitted Under Third Circuit Rule 12(6)
CourtU.S. Court of Appeals — Third Circuit

Lorraine A. Di Cintio, Ballen, Keiser & Denker, Camden, N.J., for appellant.

J. Paul McGrath, Asst. Atty. Gen., Washington, D.C., W. Hunt Dumont, U.S. Atty., Newark, N.J., Michael F. Hertz, Peter R. Maier, Attys., Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C., Bette E. Uhrmacher, Asst. U.S. Atty., Trenton, N.J., on brief, for appellee.

Before WEIS, HIGGINBOTHAM and SLOVITER, Circuit Judges.


WEIS, Circuit Judge.

This appeal is from a judgment entered by a magistrate after a bench trial. The parties had consented to trial and entry of judgment in accordance with 1979 amendments to Federal Magistrates Act. We conclude that this procedure does not violate Article III of the United States Constitution and, on the merits, we affirm.

Plaintiff brought suit against the United States under the Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671-2680 (1976 & Supp. V 1981), seeking compensation for personal injuries allegedly received in an automobile collision with a Postal Service vehicle. With the parties' consent, the case was tried before a federal magistrate, who found for plaintiff and entered a judgment of $7,500 in her favor. Plaintiff appealed directly to this court.

Within the space of five months, plaintiff was injured in two automobile accidents. The first, occurring on May 27, 1977, was a minor collision between the plaintiff's station wagon and the post office jeep. The testimony established that both vehicles were moving slowly, and plaintiff was not thrown against any part of the car's interior. In October 1977, plaintiff was again injured in a chain-reaction accident involving four cars.

The United States did not seriously contest liability for the May collision, but contended that the more serious October accident caused most of the plaintiff's injuries. The magistrate found that plaintiff failed to prove that any injuries manifested after October 7, 1977 were causally related to the collision with the postal vehicle. For damages arising out of the May 7 accident, he determined that $7,500 represented fair and reasonable compensation.

On appeal, plaintiff contends that the magistrate's findings of fact were clearly erroneous and that the award was inadequate. The appeal, however, presents two preliminary issues touching on jurisdiction.


The first question is whether this court has been presented with an appealable order. Section 636(c)(3) of the Federal Magistrates Act, 28 U.S.C. Sec. 636(c)(3) (1976 ed., Supp. V), permits an appeal directly to this court from a judgment entered by a magistrate in a case tried by consent. Section 636(c)(4) allows an alternative procedure by which, at the time of reference to the magistrate, the parties may agree to take any appeal to a district judge. Thereafter, the court of appeals may review the case only upon its grant of a petition for leave to appeal. Id. Sec. 636(c)(5).

When the parties consented to have this case tried by a magistrate, they signed a form prepared by the clerk for the District of New Jersey. In addition to the reference to the magistrate, the form contained a separate provision allowing the parties to agree that any appeal would be to a judge of the district court. 1 Although counsel for the parties signed both portions of the form, the appeal from the magistrate's judgment was taken directly to this court.

Under ordinary circumstances, a case appealed directly to this court, when the parties had agreed to initial review by a district judge, would be remanded for that disposition. In the matter at hand, however, counsel for both parties represent that they had not intended to appeal to the district judge and erroneously signed the consent to that procedure. Because the procedure is of recent origin and not yet well known to the bar, we will grant the parties' request to set aside the consent to appeal to the district judge. We caution, however, that in the future we will hold counsel to such agreements and our ruling on the point will not serve as precedent for similar leniency in subsequent cases.


The second preliminary matter is of more substance. The issue is whether section 636(c) violates Article III of the Constitution 2 by authorizing a magistrate, on consent of the parties, to conduct trials and enter judgments. 3 A panel of the United States Court of Appeals for the Ninth Circuit held that section 636(c) is unconstitutional. Pacemaker Diagnostic Clinic, Inc. v. Instromedix, Inc., 712 F.2d 1305 (9th Cir.1983), rehearing en banc granted 718 F.2d 971 (9th Cir.1983). In reaching that conclusion the panel relied on the Supreme Court's decision in Northern Pipeline Construction Co. v. Marathon Pipeline Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). Since the Pacemaker court characterizes the issue as one of jurisdiction, we raise the question sua sponte in the appeal at hand.

In Northern Pipeline, the Supreme Court held that in purporting to confer jurisdiction on bankruptcy judges to decide common law cases without the consent of the parties, the Bankruptcy Reform Act of 1978 violated Article III of the Constitution. The Court concluded that the Act "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." 458 U.S. at 50, 102 S.Ct. at 2880. The Court in particular noted that the constitutional protections provided by Article III's guarantee of life tenure and nondiminishable salary were not available to bankruptcy judges. Moreover, the Reform Act established a court, though labeled as an "adjunct", that was separate and apart from the district court. Id.

The rationale of Northern Pipeline led the Pacemaker panel to conclude that section 636(c) of the Magistrates Act likewise ran afoul of Article III. Magistrates are appointed for eight-year terms, 28 U.S.C. Sec. 631(c) (1976), may not serve beyond the age of 70 except with the approval of all the judges of the appointing court, id. Sec. 631(d), may be removed for specified cause by the appointing court, id. Sec. 631(a) (1976 ed., Supp. V 1981), and enjoy only limited salary protection, see id. Sec. 634 (1976 & Supp. V 1981). 4 Thus, the office of magistrate does not enjoy Article III tenure and salary protections. The panel concluded that this disability was not cured by construing the magistrate's power to enter a judgment under section 636(c) as the exercise of an adjunct function of the district court. 712 F.2d at 1309-10.

Concluding that "litigants cannot waive the jurisdictional requirement of an Article III court," the Pacemaker panel also rejected the proposition that the consent requirement of section 636(c) could cure the constitutional problem. Id. at 1312. The reason advanced was that "Article III addresses institutional concerns of our system of government that due process addresses only incidentally." Id. 5 The panel also turned aside the argument that the magistrate system simply involved delegation of power within the district court and thus presented no separation of powers problem. Id. at 1312-13.

The Pacemaker opinion is a thorough and thoughtful one, but it rests almost entirely on Northern Pipeline, which addressed the Article III issue only with respect to bankruptcy judges. However, the authority granted those judges under the Reform Act, as well as the conditions under which they exercise the power of their office, differs significantly from the provisions applicable to magistrates. The most important variance is that the litigants' consent is required before a magistrate may act under section 636(c). 6 No such limitation applied to bankruptcy judges under section 241(a) of the Reform Act, 28 U.S.C. Sec. 1471.

Northern Pipeline did not produce a majority opinion. Justice Brennan wrote for a plurality of four and Justice Rehnquist concurred in an opinion which Justice O'Connor joined. The concurrence articulated a narrower basis for decision than the plurality opinion and thus sets forth the holding agreed on by a majority of the Court. As summarized by the Chief Justice, the holding was "limited to the proposition ... that a 'traditional' state common-law action, not made subject to a federal rule of decision, and related only peripherally to an adjudication of bankruptcy under federal law, must, absent the consent of the litigants, be heard by an 'Article III court' if it is to be heard by any court or agency of the United States." 458 U.S. at 92, 102 S.Ct. at 2882 (Burger, C.J., dissenting) (emphasis added). The lack of consent by the litigants is thus a critical element of Northern Pipeline, but in the case at hand there is consent--uncoerced and submitted pursuant to statutory safeguards. 7

As Pacemaker pointed out, jurisdiction in the usual sense may not be conferred by consent. The limits on the district court's subject matter jurisdiction, as set by the Constitution or by statute, may not be waived by agreement of the parties. See, e.g., American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17-18, 71 S.Ct. 534, 541-542, 95 L.Ed. 702 (1951); Ahrens v. Clark, 335 U.S. 188, 193, 68 S.Ct. 1443, 1445, 92 L.Ed. 1898 (1948); United States v. Griffin, 303 U.S. 226, 229, 58 S.Ct. 601, 602, 82 L.Ed. 764 (1938). In this case, however, jurisdiction was given to the district court by Congress, see 28 U.S.C. Sec. 1346(b)--the consent of the litigants had no part in that process. The judgment in this Tort Claims Act case is that of the district court, the forum specified...

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  • Schor v. Commodity Futures Trading Com'n
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 10 August 1984
    ...the constitutionality of non-Article III adjudicatory schemes that operate only with the litigants' consent. See Wharton-Thomas v. United States, 721 F.2d 922, 928 (3d Cir.1983). For guidance on the consent concept, we consider next several post-Northern Pipeline circuit court decisions det......
  • Pacemaker Diagnostic Clinic of America, Inc. v. Instromedix, Inc.
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    • Utah Supreme Court
    • 18 August 1994
    ...in the usual sense may not be conferred by consent ... [and] may not be waived by agreement of the parties." Wharton-Thomas v. United States, 721 F.2d 922, 926 (3d Cir.1983). The Wharton-Thomas court went on, however, to In this case ... jurisdiction was given to the district court by Congr......
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    ...Diagnostic Clinic, Inc. v. Instromedix, Inc., 725 F.2d 537, 540 (C.A.9 1984) (en banc) (Kennedy, J.); Wharton–Thomas v. United States, 721 F.2d 922, 929–930 (C.A.3 1983).13 Even though the Constitution does not require that consent be express, it is good practice for courts to seek express ......
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1 books & journal articles
  • Stern v. Marshall--Digging for Gold and Shaking the Foundation of Bankruptcy Courts (or Not)
    • United States
    • Louisiana Law Review No. 72-3, April 2012
    • 1 April 2012
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