                                   United States Court of Appeals,

                                           Eleventh Circuit.

                                             No. 96-8482.

                              Albert G. THOMAS, Plaintiff-Appellant,

                                                   v.

   Bobby R. WHITWORTH; Lanson Newsome; Allen L. Ault; Tony Turpin, Defendants-
Appellees.

                                            March 5, 1998.

Appeal from the United States District Court for the Southern District of Georgia. (No. CV693-22-
WTM), William T. Moore, Judge.

Before TJOFLAT, BIRCH and MARCUS*, Circuit Judges.

        MARCUS, Circuit Judge:

        Plaintiff-Appellant Albert Thomas filed this lawsuit seeking damages and injunctive relief

for alleged civil rights violations and other allegedly unlawful acts by the Defendant-Appellees.

After the completion of discovery, the case was set for jury trial before the presiding district court

judge. Over Thomas's objection, a United States Magistrate Judge supervised the jury selection

process and selected a panel of jurors to hear the case. That jury eventually returned a verdict in

favor of the Defendants. In this appeal, Thomas argues that a magistrate judge cannot preside over

the jury selection process in a civil action where one of the parties has indicated his objection to this

practice and unequivocally stated his desire to have the entire lawsuit tried before a district judge.

Thomas also suggests that, under these circumstances, a new trial must be provided, since his



   *
     Honorable Stanley Marcus was a U.S. District Judge of the Southern District of Florida
sitting by designation as a member of this panel when this appeal was argued and taken under
submission. On November 24, 1997 he took the oath of office as a United States Circuit Judge
of the Eleventh Circuit.
inability to pinpoint any tangible prejudice flowing from the magistrate judge's supervision of voir

dire does not make the error harmless. For the reasons stated below, we agree that a new trial is

warranted.

                                                  I.

       Thomas is a prisoner in a Georgia state penitentiary. On June 29, 1992, he filed a 38-page

pro se complaint against Appellees Whitworth, Newsome and Thomas, officials in the Georgia

prison system, seeking relief under 42 U.S.C. § 1983 and other provisions for a series of alleged civil

rights violations relating to his confinement. Appellee Ault was subsequently added as an additional

Defendant. When the case was trial-ready, the district court, on January 26, 1996, directed Thomas

to indicate, no later than February 5, 1996, whether he consented to trying the case before a

magistrate judge. On February 2, 1996, Thomas advised the district court that he did not consent

to a magistrate judge trial. Nevertheless, on February 22, 1996, the case was called for jury

selection by the appointed magistrate judge, in accordance with the district judge's wishes.1 Before

the selection process got underway, Thomas reiterated his objection during a sidebar colloquy with

the magistrate judge:

       MAGISTRATE: You know you've got a right to have your case heard by a District Court
       Judge, and have a District Court Judge try your case?

       THOMAS: Yes, sir.

       MAGISTRATE: You've also got a right to have a District Court Judge preside over jury
       selection in your case.... Now, you've got a right to have him preside over everything,
       including jury selection ... [I]f you have any objection to me presiding over the jury
       selection, then we will not select the jury on this case today, and Judge Moore will have to
       schedule the trial at a later time when he can come and have a jury selected and try the case
       then.



   1
    It appears from the record that the magistrate judge was in the course of presiding over jury
selection in several pro se prisoner cases.
       THOMAS: I'd like for Judge Moore to handle the whole proceeding.

       MAGISTRATE: You want him to handle the whole proceeding?

       THOMAS: Yes, sir.

       MAGISTRATE: So you do not agree for me to preside over the jury selection?

       THOMAS: No, sir.

At the conclusion of this sidebar conversation, the magistrate judge supervised the jury selection

process in several other lawsuits. Disregarding Thomas's objection, he then proceeded with jury

selection in the case at bar. The magistrate judge approved a panel of jurors to hear the case, and

sent the panel home, advising them to contact the Clerk of Court concerning their duty to report for

jury service on March 19, 1996, the anticipated date of trial.

       On March 6, 1996, Thomas filed with the district court an application entitled "Plaintiff's

Objections to Magistrate Judge Selection of Jury on February 22, 1996." Thomas did not suggest

that the magistrate judge conducted the selection process improperly; nor did he interpose an

objection to the composition of the panel. Rather, he argued that he did not consent to the magistrate

judge's supervision of the voir dire, and therefore a "new jury should be [s]elected by a judge." The

district judge denied this motion in an order dated March 6th, stating that he was "satisfied that the

jury selection was properly designated to and conducted by [the] Magistrate." The trial commenced

on March 19, 1996. At the start of trial, Thomas orally renewed his objection to the magistrate

judge's supervision of the jury selection process. Thomas also requested that the jury be dismissed

and the case be tried to the court, although the district judge denied this application based on the

Appellees' unwillingness to consent to a non-jury trial. The jury was sworn, the trial began and a

verdict in favor of the Appellees was returned two days later. The verdict was reduced to judgment

on March 21, 1996. Thomas moved for a new trial on March 29, 1996, restating his objection to the
district court's use of a magistrate judge to supervise jury selection. The motion was denied in an

order dated April 5, 1996. Thomas filed a notice of appeal on April 17, 1996. He has been supplied

with counsel for the sole purpose of addressing the propriety of the magistrate judge's handling of

the jury selection process.

                                                  II.

        This appeal raises questions of law that must be examined de novo. The first issue for

review requires us to ask if a magistrate judge may preside over jury selection in a civil case despite

the properly preserved objection of one of the parties. Magistrate judges do not share the privileges

or exercise the authority of judges appointed under Article III of the United States Constitution;

rather, magistrate judges draw their authority entirely from an exercise of Congressional power

under Article I of the Constitution. Consequently, magistrate judges may not act contrary to the

limitations prescribed by the national legislature. See, e.g., NLRB v. A-Plus Roofing, Inc., 39 F.3d

1410, 1415 (9th Cir.1994) (stating that "federal magistrates are creatures of statute, and so is their

jurisdiction. [Courts] cannot augment it [and] cannot ask them to do something Congress has not

authorized them to do"). The jurisdiction and duties of federal magistrate judges are outlined

principally in section 636 of Title 28 of the United States Code. The statute, among other things,

grants district judges the authority to assign certain pre-trial matters to the appropriate magistrate

judge. 28 U.S.C. § 636(b)(1). Section 636(b)(3) also permits a district judge to assign to a

magistrate, with or without the consent of the parties, "such additional duties as are not inconsistent

with the Constitution and laws of the United States."

       The statute does not afford magistrate judges the right to preside over trials (except for the

trial of misdemeanor criminal offenses in accordance with 18 U.S.C. § 3401). Section 636(c) does

permit a district judge to designate a magistrate judge to "conduct any or all proceedings in a jury
or nonjury civil matter," but only "[u]pon the consent of the parties." See Hall v. Sharpe, 812 F.2d

644, 646-47 (11th Cir.1987) (observing that section 636(c) authorizes a magistrate judge to conduct

civil jury trials, but stressing that "[e]xplicit, voluntary consent is crucial to this procedure" in order

to obviate concerns about constitutionality and protect against the wholesale delegation of certain

classes of cases and litigants); see also Fowler v. Jones, 899 F.2d 1088, 1092 (11th Cir.1990)

(adding that " "valid consent is the linchpin of 28 U.S.C. § 636(c)' ") (citation omitted). The plain

language of the statute establishes that if one of the parties in a civil lawsuit pending before a district

court states his unwillingness to consent to a trial before a magistrate judge, the district court cannot

designate a magistrate judge to preside over the trial.

        The question becomes, therefore, whether the jury selection process can be parsed from other

aspects of a trial, bringing the process of selecting a jury within the "additional duties" clause of

section 636(b)(3). In Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923

(1989), the United States Supreme Court held that the "additional duties" clause does not encompass

the selection of a jury in a felony trial where the defendant has refused to consent to the magistrate's

exercise of power. The Court emphasized that voir dire is a "critical stage of the criminal

proceeding," and specifically rejected the notion that Congress did not consider voir dire to be part

of trial. 490 U.S. at 873, 109 S.Ct. at 2246-47. Thus, "[t]he absence of a specific reference to jury

selection in the statute, or indeed, in the legislative history, persuades us that Congress did not intend

the additional duties clause to embrace this function." 490 U.S. at 875-76, 109 S.Ct. at 2248. In

Peretz v. United States, 501 U.S. 923, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991), the Supreme Court

held that the statute's "additional duties" clause constitutionally permits a magistrate judge to

supervise jury selection in a felony trial where the parties state their consent. In so holding,

however, Peretz reaffirmed the reasoning in Gomez, and added that, where consent is lacking, courts
should be reluctant "to construe the additional duties clause to include responsibilities of far greater

importance than the specified duties assigned to magistrates." 501 U.S. at 933, 111 S.Ct. at 2667.

The principles adopted in these cases have been applied in this Circuit. See Grassi v. United States,

937 F.2d 578, 579 (11th Cir.1991) (per curiam) (acknowledging that, in Gomez, the Supreme Court

held that magistrates are not authorized to preside over jury selection in felony cases without a

defendant's consent, but finding no error since all parties consented to the magistrate's exercise of

this authority).

        Relying on Gomez, two of our sister Circuits have held, we think correctly, that a magistrate

judge is not empowered to conduct the voir dire in a civil jury trial over the objection of one or more

of the parties. The Seventh Circuit, in Olympia Hotels Corp. v. Johnson Wax Development Corp.,

908 F.2d 1363 (7th Cir.1990), observed that section 636 does not expressly authorize magistrate

judges to try cases (civil or criminal), and added that reading the "additional duties" clause to

encompass some or all of a jury trial would render meaningless other language in the statute. Id. at

1368 (stating that there "would [not] be much point to the elaborate provisions in section 636(c) for

the conduct of civil trials (including jury trials) by a magistrate with the consent of both parties if

a district judge could compel the parties, against their wishes, to submit to a magistrate's conducting

vital stages in the trial, such as voir dire of the jury"). Moreover, remarked the court, it is unsound

to suggest that voir dire is no more essential, and no less an opportunity for delegation, than pre-trial

discovery, which section 636 authorizes magistrates to supervise without the parties' consent:

        We are doubtful whether these are symmetrical exercises of judicial power. Pretrial
        discovery is conducted largely by the parties on their own, and of course out of court;
        judicial supervision is minimal. The voir dire, in contrast, is a vital stage of every jury trial.
        It is the jurors' first encounter with the court; and the presence of the judge who will preside
        at trial helps impress on the jurors the gravity of their mission. It is also the judge's best
        opportunity to "size up" the jury, because it will probably be the only occasion on which any
        of the juror's speak in the judge's presence. Sizing up the jury is important to the judge's
        rulings on evidentiary questions, on motions for mistrials and new trials, and on other
        matters requiring an assessment of the particular juror's ability and attentiveness; on these
        questions we defer broadly to the trial judge's judgment, in part because of his superior
        opportunity to evaluate the jurors. The trial is diminished when different judicial officers
        preside at the voir dire and at the presentation of evidence; the pretrial, much less so.

Id. at 1369 (citation omitted). Subsequently, in Stockler v. Garratt, 974 F.2d 730 (6th Cir.1992),

the Sixth Circuit agreed with the reasoning in Olympia Hotel, finding that under the statute "jury

selection in a civil trial is not one of the additional supervisory duties which can be delegated to a

magistrate ... without the consent of the parties." Id. at 732. Thus, "in the present case, it was error

for the district court to allow a magistrate to conduct voir dire over the objection of [the plaintiff]."

Id. These opinions reinforce what the statute should make plain: Section 636 does not permit

magistrate judges, under the guise of the "additional duties" clause, to conduct the jury selection

portion of a civil trial unless the parties have given their consent.

                                                    III.

         Since there can be no quarrel with Thomas's claim that he refused to give his express,

voluntary consent in this case, we turn to the issue of harmless error. Although the test for harmless

error varies somewhat with the context, generally it connotes error that has little or no impact on the

affected party's substantive rights. See, e.g., Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824,

828, 17 L.Ed.2d 705 (1967) (holding that certain federal constitutional errors may not require

reversal of a criminal conviction if shown to be harmless beyond a reasonable doubt); Williams v.

Singletary, 114 F.3d 177, 179-80 (11th Cir.1997) (per curiam) (noting that a constitutional error at

trial is not harmless if it " "ha[s] substantial and injurious effect or influence in determining the jury's

verdict' ") (citation omitted). The Appellees' brief focuses entirely on this theory. In essence, the

Appellees contend that we need not reach the question of whether a magistrate judge may preside

over jury selection against the wishes of a party, since any error in this case was harmless.

Specifically, "[T]homas does not offer any indication that he was affected in any way by the fact that
a magistrate presided over the jury selection process. He points to no ruling by the magistrate with

which he was displeased, nor does he suggest how the jury which was selected differed from the jury

which might have been selected if the district court judge had presided over the process." Appellees'

Brief, at 3-4.

        This language appears to be culled directly from the Eleventh Circuit's decision in United

States v. Rodriguez-Suarez, 856 F.2d 135 (11th Cir.1988), cert. denied, 488 U.S. 1045, 109 S.Ct.

875, 102 L.Ed.2d 998 (1989). In that case, the defendant was sentenced for possession with intent

to distribute or importation of more than 500 grams of cocaine. On appeal, he argued, among other

things, that the district court's designation of a magistrate judge to preside over jury selection

violated 28 U.S.C. § 636 and Article III. The court did not reach the question of whether the

magistrate's supervision of the jury selection process was improper, finding instead that any error

which may have occurred "was harmless beyond a reasonable doubt." The court explained that the

defendant did "not offer any indication that he was affected in any way by the fact that a magistrate

presided over the jury selection process. He points to no ruling by the magistrate with which he was

displeased, nor does he suggest how the jury which was selected differed from the jury which might

have been selected if the district court judge presided over the process." Id. at 139. As support for

its conclusion, the court cited Chapman.

        Rodriguez-Suarez, however, was issued before the Supreme Court's 1989 opinion in Gomez.

That opinion squarely holds that a magistrate judge may not conduct voir dire in a felony case where

the defendant interposes an objection to this practice. Of more immediate significance, though, the

opinion also disavows the harmless error analysis applied by this Circuit in Rodriguez-Suarez. In

Gomez, the United States argued that "any error ... was harmless because [defendants] allege no

specific prejudice as a result of the Magistrate's conducting the voir dire examination." Indeed,
observed the government, when the case returned to the district court, the defendants declined the

judge's offer to review the magistrate's rulings de novo, and did not challenge the selection of any

particular juror. The Supreme Court nevertheless found reversible error, offering the following

comments:

        Among those basic fair trial rights that " "can never be treated as harmless' " is a defendant's
        "right to an impartial adjudicator, be it judge or jury." Equally basic is a defendant's right
        to have all critical stages of a criminal trial conducted by a person with jurisdiction to
        preside. Thus harmless-error analysis does not apply in a felony case in which, despite the
        defendant's objection and without any meaningful review by a district judge, an officer
        exceeds his jurisdiction by selecting a jury.

490 U.S. at 876, 109 S.Ct. at 2248 (citations omitted).

        It could be suggested that the harmless error analysis in Rodriguez-Suarez remains sound,

even if the holding itself is no longer good law with respect to felony cases.2 But Gomez, while

arising in the criminal as opposed to civil context, clearly signals that a magistrate's supervision of

the voir dire process, in the face of an objection from one of the parties, is not the stuff of harmless

error. Arguably the criminal context differs somewhat, since the constitutional rights granted

criminal defendants are more expansive than those ordinarily accorded civil litigants. The

underlying point is the same, though: it can never be genuinely "harmless" for a litigant, over his

objection, to be compelled to try some or all his case before a non-Article III judicial officer not

entitled to exercise the power of an Article III judge.

        Rodriguez-Suarez was issued before the Sixth and Seventh Circuits, drawing largely on

Gomez, applied the reasoning of that opinion to civil lawsuits. In Olympia Hotel, the Seventh

Circuit rejected a harmless error argument in the context of a civil lawsuit, stating that although the


   2
    It is unclear from the text of Rodriguez-Suarez whether the defendant in that case agreed to
the magistrate's supervision of the jury selection process. To the extent the defendant gave his
consent, of course, the opinion lends even less weight to the Appellees' position here. See, e.g.,
Peretz.
affected party made no effort to show how it was harmed by the magistrate judge's actual handling

of the voir dire, "issues of entitlement to a particular kind of tribunal are in general not subject to

the harmless error rule." 908 F.2d at 1369. The Sixth Circuit in Stockler reached the same

conclusion, explaining "we do not believe that if a party in a civil action explicitly objects to having

a magistrate conduct voir dire and the court consciously ignores this objection ... it can be

considered harmless error." 974 F.2d at 733. Otherwise, said the court, district judges and

magistrates could "ignore the dictates of the [statute] with impunity and force civil litigants to

submit to the jurisdiction of a magistrate without their consent unless a party could demonstrate

exactly how the trial would have been different if an Article III judge, rather than the magistrate, had

conducted the voir dire." Id. Other courts have recognized that aspects of the jury selection process

may not lend themselves to harmless error. See, e.g., United States v. Rowe, 106 F.3d 1226, 1229

(5th Cir.1997) (finding "no need to show specific prejudice from a voir dire procedure that cut off

meaningful responses to critical questions" in a case where the district court's remarks may have

chilled prospective jurors from truthfully answering questions about possible bias). Indeed, there

does not appear to be any post-Gomez case law finding harmless error under the circumstances

presented in this appeal.

        The Appellees' theory of harmless error raises many troublesome mechanical questions. To

begin with, their reasoning conceivably could be used to justify a magistrate judge's decision to

preside over not just jury selection, but an entire civil trial. The jury selection process cannot be

deemed merely an ancillary or preliminary phase of a trial; it is every bit as much a part of the trial

as the opening statement, the examination of witnesses and the charging of the jury. See Gomez, 490

U.S. at 874-75, 109 S.Ct. at 2247 (stating that "[f]ar from an administrative empanelment process,

voir dire represents jurors' first introduction to the substantive factual and legal issues in a case");
Olympia Hotel, 908 F.2d at 1369; see also FDIC v. LeGrand, 43 F.3d 163, 167 (5th Cir.1995)

(distinguishing Gomez and its progeny, in the course of upholding a magistrate's ability to enter a

postjudgment discovery order, by highlighting "the critical nature of voir dire and its potentiality

for affecting the outcome of a trial"). Moreover, it is unclear precisely what kind of showing a party

like Thomas must make in order to establish that the error is "harmful." For the Appellees' theory

to make analytic sense, a party like Thomas presumably must do more than simply articulate one

or more rulings by the magistrate judge with which he is "displeased." Rather, he must show that

somehow the overall result (or at least a discrete ruling) would have been materially different if the

challenged portion of the case had been supervised by the district court. This requirement imposes

an inordinate, if not impossible, burden on a non-consenting party, and misapprehends the nature

of the harm under these circumstances.

       In any event, as the Seventh Circuit suggests, there may well be a real measure of harm to

the entire trial process when a district judge absents himself from the voir dire stage, at least where

the parties have not expressly and voluntarily indicated their consent. The credibility evaluation

required in response to the argument that preemptory challenges have been exercised for unlawful

discriminatory reasons, see, e.g., United States v. Tokars, 95 F.3d 1520 (11th Cir.1996), cert. denied,

--- U.S. ----, 117 S.Ct. 1282, 137 L.Ed.2d 357 and --- U.S. ----, 117 S.Ct. 1328, --- L.Ed.2d ----

(1997), may inform the district court's resolution of evidentiary issues during the remainder of the

trial. The converse may also be true; a district court may need to rethink credibility determinations

made during jury selection in light of subsequent events suggesting discriminatory intent. Similarly,

having supervised the jury selection process and observed the behavior of panel members during the

voir dire, the district court may be better positioned to respond appropriately when issues concerning

juror misconduct arise during the course of trial. In these and other situations, the district judge's
absence from the voir dire conceivably may impact his ability to preside effectively over other

aspects of the trial. See Gomez, 490 U.S. at 874-75, 109 S.Ct. at 2247-48 (indicating "serious

doubts" about the ability of district judges simply to acquaint themselves with the jury selection

process based on written transcripts, since "no transcript can recapture the atmosphere of the voir

dire, which may persist throughout the trial"). Admittedly these concerns may be relevant even

where both parties supply their consent. But the absence of mutual consent suggests that at least one

litigant, having contemplated the advantages and disadvantages of this practice, is not prepared to

ignore his concerns for the trial in which he is a participant. Cf. Peretz, 501 U.S. at 936 n. 12, 111

S.Ct. at 2669 n. 12 (reiterating that jury selection is an "important function" that may warrant the

participation of the district judge, but adding that counsel can "sensibly balance these considerations

against other concerns in deciding whether to object to a magistrate's supervision of voir dire ").

More to the point, Congress, by permitting district courts to assign to magistrate judges "all

proceedings in a jury or nonjury civil matter" with the consent of the parties, has implicitly

concluded that any detriment to the trial process that might result if the presiding district judge

delegates jury selection to a magistrate is mitigated if the parties agree to this procedure.

        A useful analogy can be drawn by examining the Appellees' harmless error argument in the

context of the statutory limits on federal subject matter jurisdiction under Article III. Suppose a

district court found, despite a defendant's objection, that it could exercise diversity jurisdiction over

a civil lawsuit even though it recognized that the amount in controversy fell below the statutory

minimum set by 28 U.S.C. § 1332. There is no case law in this, or any other, Circuit suggesting that

the district court's jurisdictional ruling could be overlooked as "harmless" on appeal simply upon

a showing that, in all other respects, the district court's resolution of the case was thoroughly

error-free. The essence of the harm in this situation is the fact that the lawsuit was entertained by
a tribunal that, according to Congress, had no power to entertain the dispute. The same reasoning

applies here; the harm to Appellant Thomas flows not from the adequacy or inadequacy of the

magistrate judge's handling of the jury selection process, but rather from the fact that Congress did

not afford magistrate judges the power to preside over any aspect of the trial of a civil lawsuit

without the express consent of the parties (and certainly not in the face of repeated and unequivocal

objection from a plaintiff). The statute expressly permits litigants like Thomas to insist on having

an entire trial take place before a United States District Judge; adopting the Appellees' harmless

error argument saps this statutory language of meaning, and significantly undermines the right of

a federal court litigant to have his case tried before a judge who has been appointed by the President

and is afforded the constitutional protection of Article III.3 Consequently, the concept of harmless

error cannot be used to sustain the underlying judgment, since that judgment was rendered by a jury

whose selection was supervised by a magistrate judge who lacked the statutory authority to

undertake the task assigned to him by the district court.

       For all of the foregoing reasons, the district court's denial of the Appellant's new trial motion

must be and is REVERSED. The judgment is VACATED, and the case is REMANDED for further

proceedings consistent with this opinion.




   3
   Having concluded that the magistrate judge exceeded his statutorily-created authority by
conducting jury selection in this case without the consent of the parties, we need not and do not
address any constitutional implications of this practice.
