                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT

 KELVIN ALLEN,                                     No. 11-16714
                      Plaintiff-Appellant,
                                                     D.C. No.
                     v.                           1:09-cv-00729-
                                                       GBC
 MEYER, Correctional Officer;
 BOTELLO; TRISHA; ZAMORA; ADAIR;
 ZUNIGA,                                             OPINION
              Defendants-Appellees.


        Appeal from the United States District Court
           for the Eastern District of California
        Gerald B. Cohn, Magistrate Judge, Presiding

                  Argued and Submitted
        October 16, 2013—San Francisco, California

                       Filed June 20, 2014

  Before: Sidney R. Thomas and M. Margaret McKeown,
   Circuit Judges, and Mark W. Bennett, District Judge.*

                  Opinion by Judge McKeown




 *
   The Honorable Mark W. Bennett, District Judge for the U.S. District
Court for the Northern District of Iowa, sitting by designation.
2                        ALLEN V. MEYER

                           SUMMARY**


                    Civil Rights/Jurisdiction

    Determining that it had jurisdiction to review the validity
of a judgment entered by a magistrate judge who failed to
obtain the consent of both parties, as required by 28 U.S.C.
§ 636(c)(1), the panel remanded the action to the district court
with instructions to vacate the invalid judgment and to
conduct further proceedings consistent with the panel’s
opinion.


                             COUNSEL

Caitlin Sinclaire Blythe (argued), George C. Harris, Morrison
& Foerster, San Francisco, California, for Plaintiff-Appellant.

Kenneth T. Roost (argued), Deputy Attorney General,
Kamala Harris, Attorney General of California, Jonathan L.
Wolff, Senior Assistant Attorney General, Thomas S.
Patterson, Supervising Deputy Attorney General, San
Francisco, California, for Defendants-Appellants.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                       ALLEN V. MEYER                           3

                          OPINION

McKEOWN, Circuit Judge:

    We must decide whether we have jurisdiction to review
the validity of a judgment entered by a magistrate judge who
failed to obtain the consent of both parties, as required by
28 U.S.C. § 636(c)(1). We conclude that we do. Because the
magistrate judge entered judgment on behalf of the district
court without the parties’ consent, the judgment was invalid.
Accordingly, we remand this case to the district court with
instructions to vacate the invalid judgment and to conduct
further proceedings consistent with this opinion.

                        BACKGROUND

    Kelvin Allen filed this pro se action under 42 U.S.C.
§ 1983, alleging that several correctional officers (the
“officers”) at Corcoran State Prison violated his rights under
the Eighth Amendment of the United States Constitution.
After the magistrate judge dismissed the complaint with leave
to amend, Allen amended his complaint. The officers then
moved to dismiss Allen’s amended complaint for failure to
exhaust his administrative remedies as required by the Prison
Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e.

    Allen consented to jurisdiction before a magistrate judge,
but the record confirms—and the parties concede—that the
officers never did the same. On two occasions during the
pendency of the motion to dismiss, the magistrate judge
ordered the officers to reject or consent to magistrate-judge
jurisdiction. After the magistrate judge’s first order, the
officers filed their reply brief but failed to address the consent
issue. Acknowledging that the officers had not yet consented
4                     ALLEN V. MEYER

to his jurisdiction, the magistrate judge then issued a second
order and set a deadline for the officers to respond.
Inexplicably, without waiting for the officers’ response or for
this second deadline to pass, the magistrate judge granted the
officers’ motion to dismiss and entered judgment against
Allen. Allen timely appealed.

                          ANALYSIS

    Under 28 U.S.C. § 1291, we have jurisdiction over
“appeals from all final decisions of the district courts of the
United States.” We also “have jurisdiction to determine
whether we have jurisdiction.” E.g., Aguon-Schulte v. Guam
Election Comm’n, 469 F.3d 1236, 1239 (9th Cir. 2006).
Where, as here, a magistrate judge enters judgment on behalf
of the district court, our jurisdiction on appeal “depends on
the magistrate judge’s lawful exercise of jurisdiction.”
Anderson v. Woodcreek Venture Ltd., 351 F.3d 911, 914 (9th
Cir. 2003); accord Kofoed v. Int’l Bhd. of Elec. Workers,
Local 48, 237 F.3d 1001, 1003 (9th Cir. 2001). Because our
jurisdiction to adjudicate the underlying merits of this appeal
hinges on the magistrate judge’s proper exercise of
jurisdiction, we have the authority to review the antecedent
question of whether the magistrate judge validly entered
judgment on behalf of the district court. See, e.g., Wilhelm v.
Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012) (“We review de
novo whether a magistrate judge has jurisdiction.” (internal
quotation marks omitted)); Irwin v. Mascott, 370 F.3d 924,
929 (9th Cir. 2004) (same); Hajek v. Burlington N. R.R. Co.,
186 F.3d 1105, 1107–08 (9th Cir. 1999) (raising issue of
                         ALLEN V. MEYER                                5

appellate jurisdiction sua sponte and reviewing whether
magistrate judge had jurisdiction).1

    Answering that question requires us to determine whether
the magistrate judge complied with the requirements of
28 U.S.C. § 636(c), which limits the authority of federal
magistrate judges. See Reynaga v. Cammisa, 971 F.2d 414,
416 (9th Cir. 1992). Under § 636(c), full-time federal
magistrate judges “may conduct any or all proceedings in a
jury or nonjury civil matter and order the entry of judgment
in the case, when specially designated to exercise such
jurisdiction by the district court” and “[u]pon the consent of
the parties.” 28 U.S.C. § 636(c)(1). Consent—whether
express or implied through conduct—is “the touchstone of
magistrate judge jurisdiction.” Wilhelm, 680 F.3d at 1119,
1121 (internal quotation marks omitted); see Roell v.
Withrow, 538 U.S. 580, 582 (2003).

    It is undisputed that the officers furnished neither express
nor implied consent to jurisdiction before a magistrate judge.
Consequently, the magistrate judge had no jurisdiction to
enter final judgment on behalf of the district court, and “any
purported judgment is a nullity.” Kofoed, 237 F.3d at 1004;


  1
    We recognize that there may be some tension in our precedent with
respect to our appellate jurisdiction. In our view, the cases in which we
acknowledge our jurisdiction to consider whether the magistrate judge
lacked jurisdiction are consistent with the Supreme Court’s precedent in
United States v. Corrick, 298 U.S. 435, 440 (1936), and with our well-
established case law on jurisdiction. To the extent that any of our cases
disavow such jurisdiction, we note that those cases may unintentionally
conflate jurisdiction to determine our jurisdiction with jurisdiction to
review the merits, or may simply misapprehend the limited nature of the
jurisdictional undertaking. Cf. Holbert v. Idaho Power Co., 195 F.3d 452,
454 (9th Cir. 1999) (order).
6                           ALLEN V. MEYER

cf. Reynaga, 971 F.2d at 417 (holding that, absent consent of
all parties, magistrate judge’s stay order was “beyond his
jurisdiction and was, in essence, a legal nullity”).

    Because the judgment entered by the magistrate judge
was invalid, we are left to fashion a remedy to undo it. Cf.
United States v. Corrick, 298 U.S. 435, 440 (1936) (“While
the District Court lacked jurisdiction, we have jurisdiction on
appeal, not of the merits, but merely for the purpose of
correcting the error of the lower court in entertaining the
suit.” (citing cases)). Our precedent paints no clear picture on
the appropriate remedy and presents a range of options to
address the magistrate judge’s invalid judgment. To some
degree, the remedy has depended on the nature and facts of
the case. For example, in some cases, we have dismissed the
appeal for lack of appellate jurisdiction because the
magistrate judge had no authority to enter judgment. See,
e.g., Holbert v. Idaho Power Co., 195 F.3d 452, 454 (9th Cir.
1999) (order) (dismissing appeal because “the magistrate
judge’s lack of jurisdiction a fortiori deprive[d] this court of
appellate jurisdiction” (internal quotation marks omitted));
Aldrich v. Bowen, 130 F.3d 1364, 1364–65 (9th Cir. 1997).
In other cases, rather than dismiss the appeal, we have
transferred the case back to the district court in the interest of
justice pursuant to 28 U.S.C. § 1631.2 See, e.g., In re San
Vicente Med. Partners Ltd., 865 F.2d 1128, 1131 (9th Cir.
1989) (“Rather than dismiss this appeal, however, we transfer
this matter in the interest of justice pursuant to 28 U.S.C.
§ 1631, to the district court for further action.”); Tripati v.


    2
    Under 28 U.S.C. § 1631, if a court determines “that there is a want of
jurisdiction, the court shall, if it is in the interest of justice, transfer such
action or appeal to any other such court in which the action or appeal
could have been brought at the time it was filed or noticed . . . .”
                      ALLEN V. MEYER                         7

Rison, 847 F.2d 548, 548–49 (9th Cir. 1988) (same). And in
at least one other case, we remanded the case to the district
court to decide whether the parties had voluntarily consented
to magistrate-judge jurisdiction and then instructed the
district court to vacate the judgment if it determined that
consent was lacking. See Anderson, 351 F.3d at 919.

    The upshot is that our cases do not dictate a single remedy
to correct an obvious error involving a magistrate judge’s
lack of jurisdiction. Despite the absence of a uniform
remedy, our precedent supports two important principles that
guide our approach in this appeal. First, as explained above,
we have jurisdiction to consider the threshold issue of our
own jurisdiction by reviewing the validity of a magistrate
judge’s judgment, see Aguon-Schulte, 469 F.3d at 1239,
which is distinct from our jurisdiction to adjudicate the
underlying merits of the appeal. Second, and of equal
importance, we cannot countenance a magistrate judge’s
unauthorized judgment and have frequently taken steps to
correct such errors on direct appeal. See, e.g., Nasca v.
Peoplesoft, 160 F.3d 578, 580 (9th Cir. 1999) (dismissing
appeal for lack of appellate jurisdiction and directing
magistrate judge to withdraw unauthorized remand order and
fee award), overruled on other grounds by Roell, 538 U.S. at
582; In re San Vicente, 865 F.2d at 1131.

    We are concerned that simply dismissing the appeal for
lack of jurisdiction provides no remedy at all. Doing so
would potentially deprive Allen a chance to appeal the
underlying merits and would leave intact the void judgment.
Rather than dismiss or transfer this appeal and risk leaving in
place the magistrate judge’s infirm judgment, we remand this
matter to the district court with instructions to vacate the
8                        ALLEN V. MEYER

judgment.3 On remand, the district court may address the
officers’ motion to dismiss in the first instance, or,
alternatively, may construe the magistrate judge’s order as a
report and recommendation and afford the parties reasonable
time to file objections.

        Each party shall bear its own costs on appeal.

        REMANDED WITH INSTRUCTIONS.




    3
    The “drastic and extraordinary remedy” of mandamus requested by
Allen is not warranted. In re Van Dusen, 654 F.3d 838, 840 (9th Cir.
2011) (internal quotation marks omitted). Contrary to Allen’s suggestion,
our approach in Reynaga does not support the issuance of a writ of
mandamus in this case. In Reynaga, we issued a writ of mandamus
because the magistrate judge entered an interlocutory stay order without
obtaining the consent of both parties. 971 F.2d at 415–16. Unlike in
Reynaga, Allen appeals the magistrate judge’s final, albeit unauthorized,
judgment rather than a stay. In any event, resorting to mandamus is
unnecessary in light of our remand, which has the effect of vacating the
magistrate judge’s invalid judgment.
