In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2949

David K. Kalan,

Plaintiff-Appellant,

v.

City of St. Francis,

Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 92-C-1306--Patricia J. Gorence, Magistrate Judge.

Submitted March 30, 2001/*--Decided December 17, 2001



  Before Kanne, Rovner, and Williams, Circuit
Judges.

  Per Curiam. David K. Kalan appeals the
denial of his motion for relief from
judgment under Federal Rule of Civil
Procedure 60(b)(5) and (6). We do not
reach the merits of this appeal because
we lack jurisdiction.

  In December 1992 Kalan sued the City of
St. Francis, Wisconsin, under 42 U.S.C.
sec. 1983, alleging that the City had
violated his civil rights as a result of
its conduct in two separate state court
actions the City had commenced against
Kalan. The state court actions had been
terminated in the early 1990s in
accordance with a stipulated judgment.
Under 28 U.S.C. sec. 636(c) and the
applicable local rule, the parties
consented to proceed before a magistrate
judge. The consent specified Magistrate
Judge R.L. Bittner by name (as opposed to
stating that the parties consented to
proceed before "a" magistrate judge). In
July 1993 Magistrate Judge Bittner held
that res judicata barred Kalan’s claims
under sec. 1983 and entered summary
judgment in favor of the City. Nearly
seven years later, in April 2000, Kalan
moved for relief from the judgment. A
differentmagistrate judge, Magistrate
Judge Gorence, denied Kalan’s motion. The
record contains no consent naming
Magistrate Judge Gorence and no order by
the district court referring the case to
her.

  Neither party questioned our
jurisdiction on appeal, but of course we
have an independent duty to determine
whether jurisdiction exists in every
case. See United States v. Tittjung, 235
F.3d 330, 335 (7th Cir. 2000), cert.
denied, 121 S. Ct. 2554 (2001). So we
appointed amicus counsel and requested
that he brief the question whether
Magistrate Judge Gorence, or any other
magistrate judge, had jurisdiction to
enter a final order denying Kalan’s
motion when the parties’ consent
identified Magistrate Judge Bittner by
name. We gave the parties an opportunity
to respond to amicus counsel’s brief, and
the City filed a response.

  28 U.S.C. sec. 1291 grants the courts of
appeals jurisdiction over final decisions
of the district courts. 28 U.S.C. sec.
636(c)(1) provides that "[u]pon consent
of the parties, a full-time United States
magistrate . . . 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 or the courts he serves."
Thus, a magistrate judge has jurisdiction
to enter a final decision only if the
district court properly refers the case
and the parties consent. See Rice v.
Sunrise Express, Inc., 209 F.3d 1008,
1014 n.7 (7th Cir.), cert. denied, 531
U.S. 1012 (2000). Consent need not be in
writing, but it must be on the record,
explicit, and unambiguous. See Drake v.
Minn. Mining & Mfg. Co., 134 F.3d 878,
883 (7th Cir. 1998); Mark I, Inc. v.
Gruber, 38 F.3d 369, 370 (7th Cir. 1994).
We cannot infer consent from the conduct
of the parties. Gruber, 38 F.3d at 370.
Further, we have emphasized repeatedly
that valid consent is essential to
upholding sec. 636(c)’s constitutionality
against arguments that it improperly
vests the judicial power of the United
States in non-Article III judges. Id.
(collecting cases); see also Jaliwala v.
United States, 945 F.2d 221, 224 (7th
Cir. 1991) ("[T]he standards regarding
the validity of consent must be carefully
observed, for as we have previously noted
valid consent is the linchpin of the
constitutionality of 28 U.S.C. sec.
636(c).") (citation and internal
quotation omitted).

  The question we face here is whether a
consent that specifies a particular
magistrate judge by name (Magistrate
Judge Bittner) constitutes consent to a
different magistrate judge (Magistrate
Judge Gorence). Although we have not
addressed this issue before, the Fifth
Circuit has, and that decision is
instructive here. In Mendes Junior Int’l
Co. v. M/V Sokai Maru, 978 F.2d 920 (5th
Cir. 1992), the consent and order of
reference identified Magistrate Judge
Brown by name. Id. at 921. Before
Magistrate Judge Brown could enter
judgment, she became a bankruptcy judge,
and the case was transferred to
Magistrate Judge Stacy. Id. at 922. The
Fifth Circuit held that Magistrate Judge
Stacy lacked authority to enter judgment
because the consent and order of
reference were expressly for (and
therefore limited to) Magistrate Judge
Brown. Id. at 924. The court based its
holding on the plain language of sec.
636(c)(1): "[W]hen the magistrate [judge]
enters judgment pursuant to 28 U.S.C.
sec. 636(c)(1), absence of the
appropriate consent and reference (or
special designation) order results in a
lack of jurisdiction (or at least
fundamental error that may be complained
of for the first time on appeal)." Id. at
924.

  Mendes is consistent with our decisions
construing sec. 636(c)(1) under analogous
circumstances. For example, we have held
that when a new party intervenes in a
case proceeding before a magistrate judge
by consent of the original parties,
"[u]nless the latecomer, too, consents,
the whole proceeding before the
magistrate judge may be set at naught."
Gruber, 38 F.3d at 370 (citing Jaliwala,
945 F.2d 221). This rule derives from the
axiom that the consent of the intervenor
cannot be inferred. Id. Here, we have a
new magistrate judge instead of a new
party. But we can no more infer that
consent to a specific, named magistrate
judge constitutes consent to a different
magistrate judge than we would infer the
consent of an intervening party from the
consent of the original parties. "We see
no virtue in permitting our jurisdiction
to depend on inferences where both the
statute and common sense call for
precision." Jaliwala, 945 F.2d at 224
(citation and internal quotation
omitted).

  The City maintains on several grounds
that the parties’ consent included
Magistrate Judge Gorence. First, the City
contends that the parties’ consent must
include Magistrate Judge Gorence because
sec. 636 does not require parties to
consent to a specific magistrate judge by
name and, indeed, does not give parties
the power to do so. The argument is
beside the point; the parties here chose
to consent to a specific magistrate
judge, and we must determine the legal
effect of that choice. The plain language
of sec. 636 does not, as the City
suggests, preclude parties from
consenting to a specific magistrate
judge. The City cites no authority, and
we have found none, that holds otherwise.

  The City next contends that we should
not follow Mendes; that it is
distinguishable because it involved a
magistrate judge who entered a final
judgment, whereas Magistrate Judge
Gorence denied a motion for relief from
judgment. But we agree with amicus
counsel that the City presents a
distinction without a difference. Be it a
final judgment or a final order denying a
motion for relief from judgment, without
a valid consent, Magistrate Judge Gorence
did not possess the authority to enter
either. See 28 U.S.C. sec. 636(c)(1)
("Upon the consent of the parties, a
full-time United States magistrate . . .
may conduct any or all proceedings . . .
in a civil matter and order the entry of
judgment in the case." (emphasis
supplied)).

  In anticipation of our rejection of
attempts to distinguish Mendes, the City
argues that even if an additional consent
were required, its absence is merely a
procedural defect that the parties waived
and not a bar to our jurisdiction. The
City relies on Archie v. Christian, 808
F.2d 1132 (5th Cir. 1987), and Mylett v.
Jeane, 879 F.2d 1272 (5th Cir. 1989), but
that reliance is misplaced. In Archie,
lack of consent was a procedural defect
because the district court and not the
magistrate judge entered the final
decision. Archie, 808 F.2d at 1134. In
Mylett, the parties consented to a
magistrate judge; the issue there was the
procedure to be followed in the case of a
part-time magistrate judge. Mylett, 879
F.2d at 1275. Where, as here, a
magistrate judge enters a final decision,
lack of consent is a jurisdictional
defect that the parties cannot waive. See
Drake, 134 F.3d at 883 ("[P]arties cannot
stipulate to the subject-matter jurisdic
tion of the federal courts and, in the
absence of consent, review of a
magistrate judge’s decision lies in the
district court.") (internal quotation and
citation omitted); Cf. United States v.
Wey, 895 F.2d 429, 431 (7th Cir. 1990)
(when district court enters judgment,
question of whether parties consented to
proceed before magistrate judge does not
affect the court’s subject-matter
jurisdiction, but is merely a procedural
question), and Mendes, 978 F.2d at 924
("It is the law of [the Fifth Circuit]
that when judgment on a matter is entered
by the district court, and not the
magistrate [judge], failure to obtain the
consent of the parties to proceeding
before the magistrate [judge] is only a
procedural error, not a jurisdictional
error.") (citation omitted).

  The City last contends that once the
parties consented to Magistrate Judge
Bittner’s authority, they could not with
draw consent without the district court’s
approval. The argument assumes its own
conclusion--that the consent was valid in
the first instance with respect to
Magistrate Judge Gorence. As we have
explained, it was not.

  In sum, nothing in the record shows that
the parties ever consented to Magistrate
Judge Gorence’s plenary authority over
this lawsuit. We cannot construe the
language of a consent that is limited on
its face to Magistrate Judge Bittner to
include Magistrate Judge Gorence.
Magistrate Judge Gorence therefore had no
authority to rule on Kalan’s Rule 60(b)
motion, and the judgment is a nullity.
Absent a final decision, we lack
jurisdiction to consider the merits of
this appeal.

  This appeal is DISMISSED. Kalan’s motion
to correct an error in his brief, filed
after this case originally was submitted,
is DENIED as moot.

FOOTNOTE
/* After an examination of the briefs and the
record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the
briefs and the record. See Fed. R. App. P.
34(a)(2).
