                    IN THE UNITED STATES COURT OF APPEALS

                             FOR THE FIFTH CIRCUIT

                                 _______________

                                   No. 90-4594
                                 _______________


                 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

                                                         Plaintiff,
                              ELENORIA ANDERSON,

                                                   Movant-Appellant,
                                      VERSUS

                    WEST LOUISIANA HEALTH SERVICES, INC.,

                                                   Defendant-Appellee.

                                   * * * * * *

                 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

                                                   Plaintiff,

                                      VERSUS

                    WEST LOUISIANA HEALTH SERVICES, INC.,

                                                   Defendant-Appellee,

                                      VERSUS

                                 BETTY JO LEWIS,

                                                   Intervenor-Appellant.


                           _________________________

               Appeal from the United States District Court
                   for the Western District of Louisiana
                         _________________________

Before POLITZ, Chief Judge, SMITH, Circuit Judge, and FITZWATER,*
District Judge.


        *
            District Judge of the Northern District of Texas, sitting by designa-
tion.
JERRY E. SMITH, Circuit Judge:


      Elenoria Anderson and Betty Jo Lewis appeal the decision of a

federal magistrate to dismiss their respective title VII com-

plaints.    They challenge the jurisdiction of the magistrate to

preside over, and enter judgment in, their respective cases.1               We

affirm as to Anderson but vacate as to Lewis and remand.



                                      I.

      On April 4, 1988, the Equal Employment Opportunity Commission

(EEOC) filed suit in federal district court, No. CV88-0950, against

West Louisiana Health Services, Inc. ("Health Services"), which

operates Beauregard Memorial Hospital.           The complaint alleged that

Health Services had violated title VII by discharging Anderson in

retaliation for her opposition to alleged violations of               title VII

and because     she   had   filed   complaints    with   both   the   National

Association for the Advancement of Colored People and the EEOC.

Health Services replied that Anderson's dismissal was unrelated to

her complaints, stating that she had been terminated because of

insubordination and improper discharge of her duties. Anderson did

not intervene in that suit.

      After Health Services filed its answer, both parties executed

forms consenting to a trial before a magistrate and to entry of



      1
         The appellee, Health Services, contends that Lewis has not raised the
issue of jurisdiction. While jurisdictional issues may always be raised sua
sponte, we observe that in her Statement Regarding Oral Argument in her
opening brief, Lewis refers to "[t]he legal issue in this appeal" as "Juris-
diction of Magistrates."

                                      2
final judgment by the magistrate. In July 1988, the district judge

issued an order of reference assigning all further proceedings and

entry of judgment to the magistrate "in accordance with Title 28,

U.S.C. 636(c) and the foregoing consent of the parties."

      On September 30, 1988, the EEOC filed another suit, No. CV88-

2445, against Health Services alleging that the hospital was

engaging in unlawful employment practices, including improperly

refusing to re-hire Lewis.       Lewis and her husband were involved in

the Anderson dispute, as Mr. Lewis, a security guard at the

hospital, was refusing to reduce to writing his reports on the

employee pilfering that had resulted in Anderson's dismissal.

Docket entries were made in Anderson's case as early as June 9,

1988, indicating    that   the    Lewises   would   be    deposed.     Lewis,

represented by separate counsel, intervened on October 31, 1988.

      On November 28, 1988, the district clerk sent all parties of

record in No. CV88-2445 a notice of right to consent to the

exercise of civil jurisdiction by a magistrate and forms by which

to exercise such consent.      By December 12, 1988, both the EEOC and

Health Services had executed and returned consent forms pursuant to

Fed. R. Civ. P. 73; Lewis never filed such a consent.

      On December 19, 1988, the EEOC filed a motion to consolidate

the two cases, stating,       "The Intervenor has no objection to the

granting of this Motion." The next day, the district judge granted

the   motion;   thereafter,   all   court   entries      were   made   on   one

consolidated docket sheet under No. CV88-0950.              The cases were

treated as a single proceeding for purposes of trial and judgment.


                                     3
     Trial was held before the magistrate beginning August 28,

1989; he filed his ruling and formal judgment on May 29, 1990,

dismissing the EEOC's claims and Lewis's intervention. The judgment

was docketed on May 30.      Since the magistrate issued the final

judgment, he sent no report or recommendation to the district

judge, who in turn did not enter any form of judgment.

     Anderson timely filed a notice of appeal on her own behalf on

July 30.    Lewis filed a pro se notice of appeal on August 1 S)Q

sixty-one days after the date of entry of judgment by the magis-

trate.    Lewis's attorney's motion to withdraw as counsel of record

was granted three weeks later.



                                  II.

     Anderson argues that the magistrate erred in conducting the

trial and rendering judgment pursuant to 28 U.S.C. § 636(c), where

Lewis never formally had consented to waive her right to have her

case tried by a district judge.    She asserts that Lewis's failure

to file a written consent form deprived the magistrate of jurisdic-

tion.     She does not challenge the magistrate's decision on its

merits.

     Unlike the cases Anderson cites to buttress her argument,

Anderson's was not a case in which a party failed to consent to the

reference to the magistrate:     Anderson, Health Services, and the

EEOC did consent to the reference, in writing.    If Lewis had been

a party to Anderson's case, Lewis's lack of consent would have

required that we consider Anderson's argument.    At the time of the


                                   4
magistrate's trial, however, Anderson's and Lewis's respective

cases, although consolidated, still had their individual identi-

ties.   As we have stated,

     consolidation does not cause one civil action to emerge
     from two; the actions do not lose their separate iden-
     tity; the parties to one action do not become parties to
     the other. As a consequence, the subsequent consolida-
     tion of [plaintiff's] two lawsuits did not give the
     district court subject matter jurisdiction to adjudicate
     his action [where no federal jurisdiction existed
     independently].

McKenzie v. United States, 678 F.2d 571, 574 (5th Cir. 1982)

(citations omitted).

     We also "view each consolidated case separately to determine

the jurisdictional premise upon which each stands." Kuehne & Nagel

v. Geosource, Inc., 874 F.2d 283, 287 (5th Cir. 1989).   There, the

district court consolidated two cases for trial.   We examined the

jurisdictional basis of each case as it existed before the cases

were consolidated and found that although we had no jurisdiction

over one case, we could consider the merits of the other.   See also

Alfred Dunhill, Inc. v. Republic of Cuba, 425 U.S. 682, 735 (1976)

(individual suits that are consolidated do "not lose their separate

identities for purposes of consolidation").

     Although the aforementioned cases differ from the instant case

in that they involved the issue of federal, rather than a magis-

trate's, jurisdiction, we see no reason not to apply their analysis

here.   The magistrate thus had jurisdiction over No. CV88-0950

(regarding Anderson) because both the EEOC and Health Services had

executed written consent.    The magistrate did not have written

consent from all of the parties in No. CV88-2445 (regarding Lewis),

                                5
however, as only the EEOC and Health Services had given consent.

Accordingly, we affirm the judgment of the district court as it

applies to Anderson.



                                     III.

     We next consider whether Lewis's appeal should be dismissed

because her notice of appeal was not timely.          It should not.    Under

Fed. R. App. P. 4(a)(1), a party wishing to appeal a matter in

which an agency of the United States is a party must file a notice

of appeal within sixty days after the entry of judgment.                It is

undisputed    that   Lewis   filed   her    notice   sixty-one   days   after

judgment.     Ordinarily, such tardiness would leave us without

jurisdiction.     Budinich v. Becton Dickinson & Co., 486 U.S. 196,

203 (1988).

     The record reflects, however, that Anderson filed her notice

of appeal on July 30, within the required period.          Fed. R. App. P.

4(a)(3) states,

     If a timely notice of appeal is filed by a party, any
     other party may file a notice of appeal within 14 days
     after the date on which the first notice of appeal was
     filed, or within the time otherwise prescribed by this
     Rule 4(a), whichever period last expires.

See Mikeska v. Collins, 928 F.2d 126 (5th Cir. 1991) (per curiam)

(on rehearing).       Because Lewis's notice was filed within the

prescribed period after Anderson timely filed her notice, Lewis's

appeal is timely if we deem Lewis and Anderson to be parties to the

same case for the purpose of appellate jurisdiction.




                                       6
     The rule of McKenzie v. United States, 678 F.2d 571, 574 (5th

Cir. 1982), discussed in part II, supra, does not resolve the issue

at hand.   We have recognized that, although consolidation does not

eliminate the independent existence of the actions, where the

claims have been treated as one throughout the trial, they may be

treated similarly for purposes of the notice of appeal:

     [T]he issue here is not whether in a general sense
     separate civil actions remained after consolidation. The
     issue is whether, because of consolidation, and because
     of the terms of the judgment and the expectations of the
     parties and the district court, the district court
     entered but a single judgment that disposed of all the
     claims asserted in the consolidated suits, from which
     only one appeal need be taken by any party aggrieved by
     any or several of the claims decided, whether or not
     initially asserted in more than one of the consolidated
     suits.

Harcon Barge Co. v. D&G Boat Rentals, 746 F.2d 278, 287 (5th Cir.

1984), rehearing en banc on other grounds, 784 F.2d 665 (5th Cir.),

cert. denied, 479 U.S. 930 (1986).   Cf. Barnett v. Petro-Tex Chem.

Corp., 893 F.2d 800, 805 (5th Cir.), cert. denied, 110 S. Ct. 3274

(1990) (when cases have been consolidated for trial and disposed of

by entry of only one final judgment, a single notice of appeal may

be used by all appealing parties).

     Here, as in Harcon Barge, although the court could have chosen

to treat the cases otherwise, the magistrate issued only one order

deciding both consolidated actions, and the clerk used only one

docket sheet.   See Harcon Barge, 746 F.2d at 286.   The actions were

consolidated eight months before trial and were treated together

thereafter.     Although their actual cases and causes of action

remained separate, Lewis and Anderson thus were parties to the same


                                 7
judgment, and we conclude that Lewis's appeal was filed timely,

i.e., within the fourteen-day period of rule 4(a)(3).

     We further note that such a holding is not inconsistent with

our conclusion that the cases should be treated as separate for the

purpose of determining the magistrate's jurisdiction; the require-

ments of trial and appellate jurisdiction are not identical, and

this indeed is an appeal from a joint ruling on separate suits

tried together.       To hold otherwise would discourage warranted

consolidations and would disserve the interest of judicial economy.



                                     IV.

     We now consider whether the magistrate had jurisdiction over

Lewis and her case and, concluding that he did not, we vacate the

judgment as to Lewis and remand to the district court for further

proceedings.     The district court referred Anderson's case to the

magistrate under section 636(c).2          Because Lewis's trial counsel



     2
         As of July 1988, § 636(c) read in relevant part as follows:
     (c)    Notwithstanding any provision of law to the contrary S)Q
     (1)    Upon the consent of the parties, a full-time United States magis-
            trate or a part-time United States magistrate who serves as a
            full-time judicial officer 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 courts he serves . . . .
     (2)    If a magistrate is designated to exercise civil jurisdiction under
            paragraph (1) of this subsection, the clerk of court shall, at the
            time the action is filed, notify the parties of their right to
            consent to the exercise such jurisdiction. The decision of the
            parties shall be communicated to the clerk of court. Thereafter,
            neither the district judge nor the magistrate shall attempt to
            persuade or induce any party to consent to reference of any civil
            matter to a magistrate. Rules of court for the reference of civil
            matters to magistrates shall include procedures to protect the
            voluntariness of the parties' consent.

                                      8
indicated that his client had consented to consolidation, and

because the record does not appear to contain any evidence that

Lewis objected to the consolidation or the reference at any time

before   judgment,   Health   Services   argues   that    Lewis   impliedly

consented to the reference or, alternatively, that she waived any

objection.

     Consent to trial by a magistrate under section 636(c) cannot

be implied.   In Archie v. Christian, 808 F.2d 1132, 1137 (5th Cir.

1987) (en banc), we held that

     before commencing the actual trial of any civil case in
     which a magistrate is to preside pursuant to the author-
     ity of 28 U.S.C. § 636(c), jury or nonjury, he shall
     inquire on the record of each party whether he has filed
     consent to the magistrate's presiding and shall receive
     an affirmative answer from each on the record before
     proceeding further.

Nothing in the record reflects such an inquiry and response. Thus,

we must vacate the magistrate's decision unless we find that Lewis

waived her right to trial by a district judge.           She did not.

     Health Services argues that the matter of a party's consent to

a magistrate's jurisdiction is a procedural one, which can be

waived, rather than a jurisdictional one, which cannot.                 See

Caprera v. Jacobs, 790 F.2d 442, 445 (5th Cir. 1986).          It cites no

precedent that would compel that conclusion.

     In Archie, we held that where a district court referred a

civil case for trial before a magistrate, in order for him to make

findings and recommendations, without obtaining the consent of all

parties, the defect was procedural: "The flaw was in the procedure




                                   9
by which that judgment was arrived at: by generally delegating the

conducting of jury trials to officials not authorized to do such

work without consent of the parties and by the district judges

[sic] adopting as his own the product of that improper process."

808 F.2d at 1134.     See also Parker v. Mississippi State Dep't of

Pub. Welfare, 811 F.2d 925 (5th Cir. 1987).

      It is important to note, however, that in Parker and Archie

the   respective   district   courts,   not   the   magistrates,   entered

judgment.    In contrast, the magistrate in the case before us

entered judgment under section 663(c)(1).       We previously have held

that to be a significant distinction.

      For instance, in Sockwell v. Phelps, 906 F.2d 1096 (5th Cir.

1990), after a magistrate who was to preside resigned and was

replaced, the new magistrate allowed the plaintiffs to withdraw

their written consent.    The magistrate then conducted the proceed-

ing as an evidentiary hearing but later decided that he had erred

in granting the plaintiffs' motion to withdraw their consent, and

consequently he rendered judgment pursuant to section 636(c).

      On appeal, the defendants argued that the magistrate was

without jurisdiction because he had granted the plaintiffs' request

to withdraw their consent before the proceeding began.        We agreed,

noting that once the magistrate had allowed the withdrawal, "the

situation was as if the section 636(c) consent had never been

given, and, accordingly, the magistrate simply lacked the power to

try the case and enter judgment in it."       Id. at 1098.   The opinion

distinguished Archie by noting that in Sockwell "the judgment in


                                   10
question is that of the magistrate, not the district judge, so the

error is jurisdictional, or at least plainly more fundamental than

that in Archie."          We drew a similar distinction in McLeod,

Alexander, Powel & Apffel, P.C. v. Quarles, 925 F.2d 853, 857 (5th

Cir. 1991), noting that "it is the law of this circuit that when

the judgment on a matter is entered by the district court, and not

the magistrate, failure to obtain the consent of the parties to the

proceeding before the magistrate is only a procedural error, not a

jurisdictional error" (emphasis added), plainly indicating that the

converse also must be true.3      We thus follow our previous reasoning

and vacate the judgment as to Lewis and remand to the district

court for appropriate further proceedings.4




      3
         Other circuits have held that under § 636(c), the magistrate lacks
jurisdiction unless consent is explicit, and such consent cannot be inferred
from the conduct of the parties. See Clark v. Poulton, 914 F.2d 1426 (10th
Cir. 1990); In re San Vicente Medical Partners Ltd., 865 F.2d 1128 (9th Cir.
1989); Silberstein v. Silberstein, 859 F.2d 40 (7th cir. 1988); Hall v.
Sharpe, 812 F.2d 644 (11th Cir. 1987).
      4
         Recent Supreme Court authority does not bring into doubt our holdings
in Sockwell and McLeod. In Gomez v. United States, 109 S. Ct. 2237, 2248
(1989), the Court held that a magistrate could not conduct voir dire proceed-
ings in a felony trial under 28 U.S.C. § 636(b), as such exceeded the juris-
diction of the judicial officer. In Peretz v. United States, 111 S. Ct. 2661,
2667 (1991), the Court permitted the magistrate to preside over jury selection
where the defendant's counsel, "rather than objecting to the Magistrate's
role, affirmatively welcomed it." We note that both of those cases refer to
reference under section 636(b), whose language, unlike that of section 636(c),
does not explicitly require the parties' consent. Nothing in those opinions
indicates that the Court would conclude that failure to obtain the parties'
explicit consent to reference to the magistrate for trial and entry of
judgment under section 636(c) is a procedural error subject to waiver.

                                     11
                                V.

     We trust that our treatment of this case will be understood as

an analysis of the jurisdictional fence that surrounds the office

of the article III judge, not an implied warning to attorneys and

litigants to consent to trial before a magistrate judge with

trepidation or, worse yet, to consent not at all.   The judgment as

to Anderson is AFFIRMED.   The judgment as to Lewis is VACATED and

REMANDED.




                                12
