                                                                                    PUBLISH

                    IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT

                                     _______________                        FILED
                                       No. 97-8171                  U.S. COURT OF APPEALS
                                     _______________                  ELEVENTH CIRCUIT
                                                                             2/19/03
                        D. C. Docket No. 1:95-CV-917-WLH
                                                                       THOMAS K. KAHN
                                                                           CLERK
SABRINA BARNETT,

                                                                  Plaintiff-Appellant,


                                           versus


GENERAL ELECTRIC CAPITOL CORPORATION,

                                                                    Defendant-Appellee.

                          ______________________________

               Appeal from the United States District Court
                   for the Northern District of Georgia
                      ______________________________

                                     (July 29, 1998)

Before ANDERSON and BIRCH, Circuit Judges, and COHILL*, Senior
District Judge.



BIRCH, Circuit Judge:

       Sabrina Barnett appeals the district court’s order denying her

permission to withdraw her consent to a trial before a magistrate

       *
       Honorable Maurice B. Cohill, Jr., Senior U.S. District Judge for the Western District of
Pennsylvania, sitting by designation.
judge. She further contests the magistrate judge’s exclusion of

fifteen witnesses submitted pursuant to a pretrial order. For the

reasons that follow, we conclude that Barnett did not clearly and

unambiguously consent to trial before a magistrate judge. As a

result, the magistrate judge lacked jurisdiction to preside over this

trial. We therefore remand the case to the district court for further

proceedings consistent with this opinion.1

                                    I. BACKGROUND

       On April 6, 1995, Sabrina Barnett filed an employment

discrimination suit against General Electric Capitol Corporation

(“GEEC”). On October 18, 1996, the attorneys representing both

parties attended a pretrial conference before a magistrate judge.

The conference was not memorialized and, as a result, there is no

record of what transpired between the parties; however, it is

undisputed that the parties discussed whether to try the case


       1
        Consistent with our determination that the magistrate judge exceeded his jurisdiction in
presiding over this trial, our court, similarly, lacks jurisdiction over this appeal. We therefore do
not consider the remaining evidentiary issue raised by Barnett.

                                                  2
before a magistrate judge. According to the magistrate judge’s

order describing the conference, Barnett’s counsel, George

Johnson, “advised that he would recommend to his client that she

. . . consent to trial, and that he did not foresee any problems with

that consent.” R3-58 at 1. Although the court proceeded to make

the necessary arrangements for trial before the magistrate judge,

Johnson subsequently notified the court that Barnett refused to

consent to trial before a magistrate judge.

     On November 7, 1996, GEEC filed a motion to deny

Barnett’s withdrawal of consent to trial by jury before a magistrate

judge. The district court granted GEEC’s motion after finding that

Barnett had, through her attorney, waived her right to adjudication

before an Article III judge and that any confusion that may have

existed regarding her actual consent was a matter solely between

attorney and client. See R3-59. The parties tried the case before

a magistrate judge over the course of four days in January, 1997.

On January 24, 1997, the jury returned a verdict in favor of GEEC.

                                  3
                                     II. DISCUSSION

       Barnett challenges the district court’s order granting GEEC’s

motion to deny Barnett permission to withdraw her consent to try

this case before a magistrate judge; in essence, Barnett contends

that the district court judge compelled her to go to trial before a

magistrate judge without her consent. GEEC responds that the

district court correctly determined that Barnett effectively

consented to trial before a magistrate judge by virtue of the oral

representations of her attorney at the pretrial conference.

       Congress has established that magistrate judges may

preside over most trials2 with the consent of the parties. See 28

U.S.C. § 636(c)(1). We previously have held that explicit,

voluntary consent is crucial to this procedure. See Hall v. Sharpe,

812 F.2d 644, 647 (11th Cir. 1987). We have further noted that

consent must be “clear and unambiguous,” id., and that “if one of

the parties in a civil lawsuit pending before a district court states

       2
         There are exceptions to this general principle that are neither applicable nor relevant in
this instance.

                                                 4
his unwillingness to consent to a trial before a magistrate judge,

the district court cannot designate a magistrate judge to preside

over the trial.” Thomas v. Whitworth, 136 F.3d 756, 758 (11th Cir.

1998) (emphasis in original).

     Here, the district court based its ruling on the premise that

Johnson had orally consented to try Barnett’s case before a

magistrate judge and that oral consent by counsel satisfied the

consent requirement of the statute. The district court noted that

“[c]ourts must be able to rely on an attorney as an agent for his or

her client,” R3-59 at 1, and observed that “[a]llowing withdrawal of

consent under the circumstances of this case also would

undermine a Court’s ability to manage its workload and would

unduly delay the proceedings.” Id. at 2. Finally, the district court

found further support for a finding of consent in a letter from

Johnson to the court in which Johnson stated that he had

“informed [the magistrate judge] at the Pre-Trial Conference that



                                  5
we would consent to a jury trial before the Magistrate, however, I

did so without my client’s permission.” R3-59 at 2.

     Although we are mindful of the concerns articulated by the

district court with regard to judicial efficiency, we nonetheless

readily conclude that the district court erred in construing the

events that transpired in this instance to be a manifestation of

explicit consent by Barnett to go to trial before a magistrate judge.

First, Johnson’s statement that he “would recommend to his client

that she . . . consent to trial, and that he did not foresee any

problems with that consent,” R3-58 at 1, cannot reasonably be

read to convey unequivocal, unambiguous consent; even to the

extent that Johnson’s oral representations at the pretrial

conference are binding on his client, his statement appears to

evince a desire to consult with his client and, in so doing, to

recommend trial before a magistrate judge. Second, because

there was no record of the pretrial conference, the district court

had no record to review in deciding whether consent was

                                   6
communicated properly here; indeed, we also have no record to

review to ascertain precisely what transpired at the pretrial

conference. The district court thus had before it only a letter by

Johnson communicating through descriptive language (rather

than by direct quotation) what the court later characterized as an

attorney-client mishap. We previously have held, however, that

while consent to referral to a magistrate judge need not be in

writing, it must be “express and on the record,” General Trading v.

Yale Materials Handling Corp., 119 F.3d 1485, 1495 (11th Cir.

1997) (internal quotation and citation omitted), cert. denied, ___

U.S. ___, 118 S. Ct. 1380, 140 L. Ed. 2d 526 (1998).3 We

conclude that the statement attributed to Johnson by the

magistrate judge was not a manifestation of clear and

       3
        We acknowledge that Johnson’s after-the-fact letter to the court could be interpreted to
mean that the attorney did in fact consent at the pretrial conference. This is GEEC’s position on
appeal, and based on that position GEEC argues that the appropriate issue for appeal is whether
or not an attorney’s oral consent is binding on the client. However, we conclude that the
attorney’s letter does not constitute the required clear and unambiguous consent. Another
permissible interpretation of the attorney’s letter is that he had told the magistrate judge that his
client would consent in the future. Thus, it cannot be said that the attorney’s letter is clear and
unambiguous. Accordingly, we reject GEEC’s attempt to convert the issue in this case to that of
whether an attorney can consent on behalf of the client.

                                                 7
unambiguous consent. Moreover, the lack of any record of the

pretrial conference rendered this case particularly inappropriate

for referral to a magistrate judge over the objection of the

plaintiff.4

       Briefly, we note that GEEC also suggests that the district

court’s decision to refer this civil trial to a magistrate judge, if

found to be erroneous, should be deemed harmless error.

GEEC notes that Barnett received a full and fair opportunity to

litigate her claims before a tribunal and can point to no specific

error that rendered her trial tantamount to a miscarriage of

justice. We recently have decided, however, that

               it can never be genuinely “harmless” for a
               litigant, over his objection, to be compelled


       4
          It is unclear whether the district court had the benefit of the magistrate judge’s order
describing the pretrial conference prior to ruling on GEEC’s motion; the magistrate judge’s order
and the district court’s order issued on the same day. The answer to this question, however,
makes no difference to our resolution of this case. If the district court did have an opportunity to
review the magistrate judge’s order, we conclude that the statement attributed to Johnson should
have indicated to the district court that Barnett’s consent was not clear and unequivocal.
Assuming that the district court did not have the magistrate judge’s order, and regardless of the
letter from Johnson, the absence of any record apprizing the court of what actually was said
during the pretrial conference should have precluded a finding of unambiguous consent to trial
before a magistrate judge.

                                                 8
         to try some or all [of] his case before a non-
         Article III judicial officer not entitled to
         exercise the power of an Article III judge.
         ....
         . . . . 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. . . . [T]he harm to Appellant flows
         not from the adequacy or inadequacy . . . of
         the magistrate judge’s handling of the . . .
         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 . . . .

Thomas, 136 F.3d at 761-762 (emphasis in original). Based on

our circuit precedent, GEEC’s argument that any potential error

that occurred in this case should be deemed harmless is

unavailing.



                      III. CONCLUSION

    Barnett challenges the district court’s order granting

GEEC’s motion to deny Barnett permission to withdraw her


                               9
consent to go to trial before a magistrate judge. We conclude

that statements by Barnett’s attorney apparently expressed

during the pretrial conference did not manifest the clear and

unambiguous consent that the statute requires for referral of a

civil trial to a magistrate judge. Furthermore, the absence of

any record or official transcript of the pretrial conference

renders a finding of express consent by the parties to trial

before a magistrate judge inappropriate. The error engendered

by improper reference to a magistrate judge in this case,

moreover, cannot be deemed harmless in nature. The district

court erred in finding that Barnett had consented explicitly to

trial before a magistrate judge; therefore, the magistrate judge

was without jurisdiction to preside over this trial. Accordingly,

the judgment is VACATED and the case is REMANDED for

further proceedings consistent with this opinion.




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