Louis Branch v. D. Umphenour ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOUIS BRANCH, No. 17-15369
Plaintiff-Appellant,
D.C. No.
v. 1:08-cv-01655-
SAB
D. UMPHENOUR, Building 250
Officer, Avenal Prison; L. SZALAI,
C/O; J. ALVAREZ, C/O, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Stanley Albert Boone, Magistrate Judge, Presiding
Argued and Submitted June 13, 2019
San Francisco, California
Filed September 5, 2019
Before: Mary M. Schroeder and Milan D. Smith, Jr.,
Circuit Judges, and Jed S. Rakoff, * District Judge.
Opinion by Judge Rakoff
*
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
2 BRANCH V. UMPHENOUR
SUMMARY **
Prisoner Civil Rights
The panel vacated a magistrate judge’s denial of
plaintiff’s motion to withdraw consent to magistrate judge
jurisdiction, vacated screening orders entered by various
magistrate judges, and remanded.
Plaintiff is a pro se prisoner who brought suit in 2008
alleging civil rights violations by prison officials. Shortly
after filing his action, plaintiff consented to magistrate judge
jurisdiction. Defendants declined to consent until more than
seven years later, in 2015.
The panel first found no error in the magistrate’s
decision to adjudicate certain pending motions for
reconsideration. The panel held that once all parties
consented to the magistrate judge’s jurisdiction, the
magistrate judge was authorized to decide the pending
motions. The panel held that although it was clear that
plaintiff was entitled to seek district court review of the
magistrate judge’s decision before all parties accepted the
magistrate judge’s jurisdiction, it was equally clear that, after
all parties consented, plaintiff had no right to return to the
district court for further review.
The panel held that only a district judge may rule on a
motion to withdraw consent to the jurisdiction of a
magistrate judge under section 636(c)(4). Therefore, the
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BRANCH V. UMPHENOUR 3
magistrate judge lacked jurisdiction to rule on plaintiff’s
motion to withdraw consent. The panel acknowledged that
although other sister circuits had reached different
conclusions, the panel found those decisions unpersuasive.
In determining the proper remedy, the panel rejected
plaintiff’s contention that this was a structural error requiring
automatic vacatur of the judgment. The panel held that
because the injury to plaintiff was that he was denied review
of his motion to withdraw by an Article III court, the proper
remedy was to remand to the district court to consider the
motion to withdraw consent in the first instance. On remand,
if the district judge found, either based on good cause or
extraordinary circumstances, that plaintiff ought to have
been permitted to withdraw consent, then the district court
would be required to vacate the judgment.
The panel further held that the magistrate judge who
screened plaintiff’s various complaints lacked jurisdiction to
dismiss plaintiff’s claims before the defendants had not yet
consented to jurisdiction. The panel held that without
consent, a magistrate judge is limited to submitting a report
and recommendation on dispositive pretrial motions,
including motions to dismiss for failure to state a claim. See
28 U.S.C. § 636(b)(1)(A), (B). The panel therefore vacated
the screening orders entered by various magistrate judges
that dismissed certain of plaintiff’s claims and remanded for
further proceedings on those claims.
COUNSEL
Jeremy C. Keeney (argued) and Joshua S. Johnson, Vinson
& Elkins LLP, Washington, D.C., for Plaintiff-Appellant.
4 BRANCH V. UMPHENOUR
Kevin A. Voth (argued), Deputy Attorney General; Neah
Huynh, Supervising Deputy Attorney General; Monica N.
Anderson, Senior Assistant Attorney General; Xavier
Becerra, Attorney General; Office of the Attorney General,
San Francisco, California; for Defendants-Appellees.
OPINION
RAKOFF, District Judge:
Appellant Louis Branch, a prisoner in the California state
prison system, brought this pro se suit alleging civil rights
violations by various prison officials. After the conclusion
of a bench trial before a magistrate judge, the jury returned
a verdict in favor of defendants on all claims. Branch now
appeals, arguing primarily that the magistrate judge
exceeded his jurisdiction in adjudicating certain motions
addressed to the district court assigned to the case. We agree,
in part. Specifically, Branch’s motion to vacate the referral
to the magistrate judge was one that could only be decided
by the district judge. We therefore remand with instructions
for the district judge to consider that motion in the first
instance. Additionally, the magistrate judges who screened
Branch’s complaint lacked jurisdiction to dismiss his claims.
We therefore vacate the dismissal of those claims and
remand for further proceedings.
BACKGROUND
On July 7, 2008, Branch filed a pro se complaint alleging
that several prison guards and officials had deliberately
infringed his constitutional rights, in violation of 42 U.S.C.
§ 1983. Branch’s complaint alleged that, while incarcerated
at Avenal State Prison in June of 2004, he submitted a
BRANCH V. UMPHENOUR 5
declaration in support of another prisoner’s complaint. 1 He
was then “confronted” by Officer Daniel Umphenour, who
said Branch would be “[d]ealt with” for submitting a “false
declaration against an [o]fficer.” Branch then submitted
complaints to Warden Kathy Mendoza-Powers and
Armando Mancinas, the prison’s “Classification and Parole
Representative.” Thereafter, he was repeatedly transferred
between prison facilities over a short period of time. After
one such transfer, Branch was stabbed and beaten by fellow
inmates. Branch claimed that Umphenour, as well as
Officers Louis Szalai and Jose Alvarez, stood by and
watched the beating without intervening or sounding the
alarm. Subsequently, in August of 2004, he was transferred
to Mule Creek State Prison. Branch claimed that Umphenour
was the official responsible for inventorying his property and
that, upon arrival at Mule Creek, his property was found to
have been “sabotaged.”
Branch’s complaint asserted claims against Umphenour,
Szalai, Alvarez, Mendoza-Powers, and Mancinas for
(1) deliberate indifference to his wellbeing, in violation of
the Eighth Amendment; (2) retaliation for Branch’s support
of another prisoner’s complaint, in violation of the First
Amendment; and (3) violation of Branch’s “substantive
Fourteenth Amendment right to personal safety.” As an
incarcerated plaintiff, Branch’s complaint was subject to
screening. See 28 U.S.C. § 1915A. He ultimately filed three
amended complaints, each of which were screened by
magistrate judges without district judge review. Branch’s
Fourteenth Amendment claim was dismissed as duplicative
of his claims arising under the more specific First and Eighth
Amendments. His claims against Mendoza-Powers and
1
The facts herein are drawn from Branch’s Third Amended
Complaint, the pleading on which he proceeded to trial. Its allegations
did not materially vary from earlier pleadings.
6 BRANCH V. UMPHENOUR
Mancinas were dismissed because none of the facts alleged
supported an inference that either defendant acted out of
retaliatory animus, nor that they were aware of any
significant threat to Branch’s safety. The deliberate
indifference claims against Umphenour, Szalai, and Alvarez
were all permitted to proceed based on the allegation that
they failed to intervene as Branch was beaten. The
magistrate judge also permitted the retaliation claim against
Umphenour based on his failure to intervene, since
retaliatory intent could be inferred from Umphenour’s
alleged statement that Branch would be “dealt with.” The
magistrate judge dismissed, however, the retaliation claim
premised on Umphenour’s “sabotage” of Branch’s property,
and dismissed all retaliation claims against Szalai and
Alvarez, finding that the complaints failed to plead that
either defendant knew of Branch’s protected activity.
Shortly after this action was filed, the parties were
notified that they could consent to the jurisdiction of a
magistrate judge for all purposes, pursuant to Fed. R. Civ. P.
73(b)(1) and 28 U.S.C. § 636(c)(2). Branch consented in
September of 2008. Defendants declined to consent. 2 The
case remained assigned to a magistrate judge 3 for all pretrial
purposes, under the supervision of the district judge, as
2
It appears that the parties’ responses to the clerk’s notice were
publicly docketed, in violation of Fed. R. Civ. P. 73(b)(1), which
provides that “[a] district judge or magistrate judge may be informed of
a party’s response to the clerk’s notice only if all parties have consented
to the referral.” While it does not affect the disposition of this appeal, we
expect that the district court will adopt procedures to ensure that this
error does not recur in the future.
3
In fact, a succession of magistrate judges presided over Branch’s
case, but herein we refer to them collectively as “the magistrate judge”
for the sake of simplicity.
BRANCH V. UMPHENOUR 7
provided by the Eastern District of California Local Rule
302.
On August 15, 2014, about two months following the
close of discovery, defendants served, in connection with
summary judgment briefing, two copies of previously-
undisclosed chronology reports (or “Chronos”) purportedly
prepared by Szalai and Alvarez regarding the events of the
day that Branch was attacked. The Chronos suggested that
neither defendant was present for the attack. Branch moved
to preclude the use of the documents, and in response
defense counsel filed an affidavit claiming that the Chronos
“were discovered in Branch’s prison central file” the month
they were disclosed. The trial court denied the motion to
preclude, but permitted additional discovery related to the
Chronos. As part of that discovery, Branch served an
interrogatory stating: “On 09/16/2013, you were served with
plaintiff’s Summons and Complaint (Doc. 103), but you
failed to inform your counsel, Mr. Kosla, of your 7-11-2004
General Chrono, why?” Defendants objected that the
interrogatory sought information protected by the attorney-
client privilege, and Branch moved to compel a response.
The magistrate judge denied Branch’s motion on the ground
that neither party had filed the interrogatory or defendants’
response to it. In fact, defendants had included a copy of both
with their filed opposition papers.
On June 5, 2015, Branch filed a motion pursuant to Fed.
R. Civ. P. 72(a) and Local Rule 303(c) “for reconsideration
by the district court” on the ground that the magistrate
judge’s decision was “clearly erroneous and/or contrary to
law.” The district court entered an order on June 9 denying
Branch’s motion, but it referred to a different plaintiff and
was apparently intended for docketing in another case.
8 BRANCH V. UMPHENOUR
Branch then filed another motion for reconsideration,
pointing out the error.
While Branch’s second motion for reconsideration was
still pending, on November 3, 2015, defendants consented to
the magistrate judge’s jurisdiction for all purposes. The
magistrate judge then decided both of Branch’s motions for
reconsideration, but treated them as arising under Fed. R.
Civ. P. 60(b). Applying that standard, the magistrate judge
held that Branch “failed to show any newly discovered
evidence or that there has been a change in controlling law.”
The magistrate judge further concluded that the
interrogatory “specifically sought details of communication
between defense counsel and Defendants” and so the
information was “clearly protected by the attorney-client
privilege.”
On March 28, 2016, Branch filed a motion, addressed to
the district judge, to vacate his consent to the magistrate
judge’s jurisdiction. Branch contended that the various
magistrate judges to issue decisions in his case had engaged
in a “willful and chronic abuse of discretion,” and
specifically contended that the magistrate judges lacked
jurisdiction to deny his motions for reconsideration by the
district judge. The magistrate judge denied Branch’s motion,
concluding that his “disagreement with reasonable court
rulings constitutes neither good cause nor extraordinary
circumstance to allow him to withdraw consent.” Branch
then moved to vacate that order, arguing that only a district
judge could adjudicate a motion to vacate consent. The
magistrate judge denied that motion as well, construing it as
a motion for reconsideration.
At trial, Branch’s case was largely limited to his own
testimony. He unsuccessfully sought to move various
documents into evidence, but the trial court sustained
BRANCH V. UMPHENOUR 9
objections to most on hearsay or foundation grounds. The
jury returned a verdict in favor of defendants on all counts.
Branch timely appealed.
DISCUSSION
Branch argues on appeal that the magistrate judge
(1) lacked jurisdiction to decide his motions for
reconsideration by the district judge and his motion to
withdraw consent to the magistrate judge’s jurisdiction;
(2) erroneously dismissed certain of his claims at the
screening stage; (3) erroneously denied his motion to compel
an interrogatory response; and (4) improperly prevented him
from admitting exhibits into evidence at trial.
A. The Scope of the Magistrate Judge’s Jurisdiction
Branch does not dispute that he consented to the
magistrate judge’s jurisdiction, such that, once defendants
consented as well, the magistrate judge was authorized to try
the case and enter judgment. 4 He contends, however, that the
magistrate judge lacked jurisdiction to decide his motion for
reconsideration by the district judge and his motion to
withdraw consent to the magistrate judge’s jurisdiction. “We
review de novo whether a magistrate judge has jurisdiction.”
Wilhelm v. Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012)
4
It should be noted, however, that Branch indicated his consent in
September of 2008, but defendants did not consent until November of
2015—over seven years later. The statutory scheme seems to
contemplate a contemporaneous or near-contemporaneous decision by
the parties, not piecemeal acceptance over the course of years of
litigation. Cf. 28 U.S.C. § 636(c)(2) (“The decision of the parties shall
be communicated to the clerk of court.”) (emphasis added). Nonetheless,
because Branch does not urge us to find that his consent lapsed prior to
defendants’ acceptance, we assume for purposes of this appeal that his
consent remained effective.
10 BRANCH V. UMPHENOUR
(quoting Anderson v. WoodCreek Venture Ltd., 351 F.3d
911, 915 (9th Cir. 2003)).
Throughout the latter half of the twentieth century,
Congress gradually expanded the duties and powers of
magistrate judges. See Brown v. United States, 748 F.3d
1045, 1050–57 (11th Cir. 2014) (describing the development
of the magistrate judge system). The law currently provides
a three-tiered system of magistrate judge jurisdiction. First,
a magistrate judge may be designated to determine most
pretrial matters directly, except that the parties can ask the
district judge to “reconsider” any such matter if “the
magistrate judge’s order is clearly erroneous or contrary to
law.” 28 U.S.C. § 636(b)(1)(A). Second, when it comes to
certain dispositive or extremely important motions—such as
motions for summary judgment or injunctive relief—the
magistrate judge does not issue a ruling, but may conduct
hearings and submit a report and recommendation to the
district judge, who will ultimately determine the matter de
novo. Id. § 636(b)(1)(B), (C). Finally, “[u]pon the consent of
the parties,” a magistrate judge “may conduct any or all
proceedings in a . . . civil matter and order the entry of
judgment in the case.” Id. § 636(c)(1). Any action taken by
the magistrate judge beyond this statutory grant of
jurisdiction is, however, “a nullity.” Allen v. Meyer, 755 F.3d
866, 868 (9th Cir. 2014) (quoting Kofoed v. Int’l Bhd. of
Elec. Workers, Local 48, 237 F.3d 1001, 1004 (9th Cir.
2001)).
Critically, under this tripartite structure, no party will be
denied independent review by an Article III judge unless all
parties have consented to the magistrate judge exercising
plenary jurisdiction. Thus, in upholding the magistrate judge
system against constitutional attack, this Court observed that
Article III judges retained “continuing, plenary
BRANCH V. UMPHENOUR 11
responsibility for the administration of the judicial business
of the United States.” Pacemaker Diagnostic Clinic of Am.,
Inc. v. Instromedix, Inc., 725 F.2d 537, 546 (9th Cir. 1984)
(en banc) (Kennedy, J.). We noted, in particular, the
“element of judicial control in the Article III authority to
cancel an order of reference, sua sponte or on application of
the parties.” Id. at 545.
Applying these principles to the case before us, we
conclude that, once all parties consented to the magistrate
judge’s jurisdiction, the magistrate judge was authorized to
decide Branch’s pending motions for reconsideration by the
district judge. The availability of district court review exists
to protect litigants who have not agreed to give up their right
to adjudication by an Article III judge. Thus, although it is
clear that Branch was entitled to seek district court review of
the magistrate judge’s decision before all parties accepted
the magistrate judge’s jurisdiction, it is equally clear that,
after all parties consented, Branch had no right to return to
the district court for further review. Branch seeks to impose
a rule that a motion for reconsideration filed before consent
is given must ultimately be decided by the district court,
even if the decision comes after consent. But there is no basis
in either the governing statute or the Federal Rules for such
a requirement.
Branch argues that only a district judge is empowered to
decide a motion made pursuant to Rule 72(a). See Fed. R.
Civ. P. 72(a) (“The district judge must consider timely
objections . . . .”) (emphasis added). Perhaps so, but that
misses the point. By consenting to the magistrate judge’s
plenary jurisdiction, Branch gave up the right to have the
magistrate judge’s decisions reviewed by the district judge.
Thus, once the magistrate acquired full jurisdiction over the
case, Branch had no right to have any Rule 72(a) motion
12 BRANCH V. UMPHENOUR
decided at all, much less by the district judge. Under these
circumstances, the magistrate judge reasonably construed
Branch’s motions as motions for reconsideration arising
under Rule 60(b).
Branch next argues that defendants consented to the
magistrate judge’s jurisdiction over “further proceedings,”
and that his still-pending motion was not a “further”
proceeding. That is debatable as a matter of semantics, but
in any event it is irrelevant. Branch himself consented well
in advance. 5 Even assuming defendants did not mean to
consent to have the magistrate judge decide the pending
motions for reconsideration, that is an objection only they,
not Branch, have standing to raise. Branch “received the
protection intended by the statute, and deserves no boon
from the other side’s failure to” consent earlier. Roell v.
Withrow, 538 U.S. 580, 590 (2003). Thus, we find no error
in the magistrate judge’s decision to adjudicate Branch’s
motions for reconsideration.
We reach a different result, however, as to the motion to
withdraw consent. Section 636 provides that “[t]he court
may, for good cause shown on its own motion, or under
extraordinary circumstances shown by any party, vacate a
reference of a civil matter to a magistrate judge.” 28 U.S.C.
§ 636(c)(4). 6 Rule 73 makes explicit that only “the district
5
We express no opinion on whether the same result should obtain if
consent came in the opposite order, i.e. if Branch were the party to
withhold consent initially and then, while his motion for reconsideration
was pending, he gave consent to the magistrate judge exercising
jurisdiction over “further proceedings.”
6
Although the statutory provision refers to a motion to “vacate a
reference,” we follow the parties’ terminology in sometimes referring to
BRANCH V. UMPHENOUR 13
judge” may vacate a reference to a magistrate judge. Fed. R.
Civ. P. 73(b)(3). Branch argues that these provisions
preclude the magistrate judge from ruling directly on a
motion to withdraw consent. We agree. 7
The relevant statute and rule clearly contemplate a ruling
by a district judge, not a magistrate judge. Rule 73 explicitly
so provides. Fed. R. Civ. P. 73(b)(3) (“[T]he district judge
may vacate a referral to a magistrate judge under this rule.”).
And while section 636 is not quite so clear, it says that “[t]he
court” may vacate a reference “to a magistrate judge.”
28 U.S.C. § 636(c)(4). This juxtaposition—“the court” on
the one hand, “a magistrate judge” on the other—suggests
two different entities. In context, then, “the court” is most
naturally understood as referring to a district judge.
This reading is reinforced by the fact that section 636
elsewhere refers to district judges as judges “of the court,” a
nomenclature that is never applied to magistrate judges. See,
e.g., 28 U.S.C. § 636(b)(1)(A) (“A judge of the court may
this as a motion to withdraw consent to the magistrate judge’s
jurisdiction.
7
The issue of a magistrate judge’s power to rule on a motion to
withdraw consent to the magistrate judge’s jurisdiction appears to a
question of first impression in this circuit. In United States v. Neville,
985 F.2d 992 (9th Cir. 1993), we affirmed a magistrate judge’s refusal
to permit a misdemeanant defendant to withdraw consent, but our
analysis was explicitly specific to the statute authorizing jurisdiction
over misdemeanor criminal trials. See id. at 999 & n.17 (noting that
“consent clearly may be withdrawn in a civil case,” but that it was less
clear as applied to criminal cases). And in Dixon v. Ylst, 990 F.2d 478(9th Cir. 1993), we again approved a magistrate judge’s refusal to grant
a party’s day-of-trial request for the case to be tried by a district judge,
but only after concluding that the party “made no motion to vacate the
reference to the magistrate judge.” Id. at 480.
14 BRANCH V. UMPHENOUR
reconsider any pretrial matter . . . where it has been shown
that the magistrate judge’s order is clearly erroneous or
contrary to law.”); id. § 636(b)(1)(B) (the magistrate judge
must “submit to a judge of the court proposed findings of
fact and recommendations for the disposition, by a judge of
the court,” of certain motions); id. § 636(b)(1) (“A judge of
the court shall make a de novo determination” of portions of
the report and recommendation to which parties object).
Defendants argue that, once the parties have consented to the
magistrate judge’s jurisdiction, the magistrate judge is “the
court.” But that is simply not how the statute reads.
The legislative history also supports our position. The
Senate version of the bill, which eventually became law, also
authorized “the court” to vacate a reference. The Senate
Judiciary Committee’s report described this provision as
“authoriz[ing] a district judge to vacate a reference.” S. Rep.
No. 96-74, at 14 (1979) (emphasis added). While the report
of a single committee of a single chamber is not dispositive,
and the matter was not addressed in any conference report,
the Senate Judiciary Committee’s language further confirms
that the most natural reading—that “the court” refers to a
district judge—is correct. Notably, too, this is how the
provision was understood by the Advisory Committee for
the Federal Rules of Civil Procedure. Rule 73(b) specifies
that only a district judge may vacate a reference, and the
Committee’s notes characterize this provision as
“reiterat[ing] the provision in 28 U.S.C. § 636(c)(6) [now
(c)(4)] for vacating a reference to the magistrate.” Fed. R.
Civ. P. 73, Notes of Advisory Committee on Rules—1983.
In the face of this textual and historical evidence,
defendants point to the grant of authority to a magistrate
judge to “conduct any or all proceedings,” 28 U.S.C.
§ 636(c)(1), and argue that this “necessarily includes ruling
BRANCH V. UMPHENOUR 15
on a motion to withdraw consent.” But that grant of
jurisdiction is qualified by the restriction on who may decide
a motion to withdraw consent. It is a cardinal rule of
statutory interpretation that a specific limitation takes
precedence over a general grant of authority. See RadLAX
Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639,
645 (2012). Defendants’ interpretation would also have the
troubling result that a party before a magistrate judge would
be unable to petition an Article III judge for review. Such an
arrangement would raise significant constitutional
difficulties, as it would appear to lack the requisite
supervision by an Article III officer.
Defendants suggest that there is no problem here,
because a district judge retains the authority to sua sponte
vacate a reference. But in Pacemaker, we emphasized the
importance of the district court’s “authority to cancel an
order of reference, sua sponte or on application of the
parties, in individual cases.” 725 F.2d at 545 (emphasis
added). Moreover, it is doubtful as a practical matter that
district judges, burdened with their own busy dockets, would
take the time to review a magistrate judge’s rulings without
a motion from the parties. And while defendants suggest that
section 636 and Rule 73 could be read to grant magistrate
judges and district judges concurrent jurisdiction over
motions to withdraw consent, that is simply not plausible.
There would be no reason to draft the statute to explicitly
grant that authority to the district judge, while silently also
granting it to the magistrate judge.
Based on the foregoing, we conclude that only a district
judge may rule on a motion to withdraw consent to the
jurisdiction of a magistrate judge under section 636(c)(4). In
so holding, we acknowledge that some other courts of
appeals have reached a different answer to this question.
16 BRANCH V. UMPHENOUR
With respect to our sister circuits, however, we do not find
these decisions persuasive. Virtually all of them simply state
matter-of-factly that the magistrate judge has the power to
adjudicate a motion to vacate a reference, without explaining
their reasoning. See, e.g., Sockwell v. Phelps, 906 F.2d 1096,
1097 n.1 (5th Cir. 1990) (stating without elaboration that
“[c]learly, the magistrate had the jurisdiction and power to
permit the withdrawal of consent as he did”); McCarthy v.
Bronson, 906 F.2d 835, 838 (2d Cir. 1990) (stating without
elaboration that magistrate judge faced with party’s
withdrawal of consent “could have declined to vacate the
636(c) consent and adjudicated the merits definitively”); see
also Carter v. Sea Land Services, Inc., 816 F.2d 1018, 1020–
21 (5th Cir. 1987) (affirming magistrate judge’s denial of
motion to withdraw consent, without directly addressing
whether magistrate judge is authorized to adjudicate such a
motion); Lorenz v. Valley Forge Ins. Co., 815 F.2d 1095,
1097 (7th Cir. 1987) (similar); Diaz v. Superior Energy
Services LLC, 341 F. App’x 26, 27 (5th Cir. 2009) (per
curiam) (similar). 8 For the reasons already discussed, we
believe the statutory text compels a different conclusion.
It follows then that the magistrate judge lacked
jurisdiction to rule on Branch’s motion to withdraw consent.
The next question is the proper remedy. Defendants argue
that any error is harmless. But when, as here, the error
8
Other decisions have concluded, as we do, that magistrate judges
lack jurisdiction over this type of motion, although they are similarly
sparse in their reasoning. See Fellman v. Fireman’s Fund Ins. Co.,
735 F.2d 55, 58 (2d Cir. 1984) (“Once a case is referred to a magistrate
under section 636(c), the reference can be withdrawn only by the district
court . . . .”); Dowell v. Blackburn, 932 F.2d 963, 1991 WL 75226, at *1
(4th Cir. 1991) (unpublished) (per curiam) (holding, based on Fellman
and Pacemaker, that “only the district court may rule on a motion to
vacate a reference to a magistrate judge”).
BRANCH V. UMPHENOUR 17
resides in the wrong decisionmaker ruling on a motion,
traditional harmless error analysis is not applicable. See
Sockwell, 906 F.2d at 1099 & n.3 (holding that “the harmless
error rule is inapplicable” where a magistrate judge lacked
jurisdiction, because “showing prejudice” would be
“virtually impossible” and “the decision of the magistrate
was not subject to meaningful district court review”).
On the other hand, we also reject Branch’s contention
that this is a “structural” error requiring automatic vacatur.
It is true that, if Branch’s motion to withdraw consent had
been granted by the district judge, the magistrate judge
would thereafter have lacked jurisdiction, and the trial and
judgment that followed would be a legal nullity. But
Branch’s motion was not guaranteed to succeed, and neither
the filing of the motion, nor the magistrate judge’s erroneous
adjudication of that motion, operated to immediately divest
the magistrate judge of previously-acquired jurisdiction. “At
worst, the magistrate judge . . . made an error regarding the
contours of a magistrate judge’s authority pursuant to
28 U.S.C. § 636. Such an error is ‘not . . . equivalent to
acting with total want of jurisdiction and does not render the
judgment a complete nullity.’” Hoffman v. Pulido, 928 F.3d
1147, 1151 (9th Cir. 2019) (quoting Jones v. Giles, 741 F.2d
245, 248 (9th Cir. 1984)) (second ellipsis in original).9
Vacating the entire judgment at this point would thus be an
undeserved windfall.
Although the judgment below is therefore not a complete
nullity, we nonetheless find it necessary to take some
corrective action rather than leave Branch with “no remedy
9
For the same reason, we conclude that we have jurisdiction to
decide the balance of this appeal, even though the judgment entered by
the magistrate may ultimately be vacated following remand.
18 BRANCH V. UMPHENOUR
at all.” Allen, 755 F.3d at 869. “[O]ur cases do not dictate a
single remedy to correct an obvious error involving a
magistrate judge’s lack of jurisdiction.” Id. The injury to
Branch is that he was denied review of his motion by an
Article III court. The proper remedy is therefore to remand
to the district court to consider his motion to withdraw
consent in the first instance.
On remand, the district court should consider whether
Branch has shown either “good cause” or “extraordinary
circumstances.” 28 U.S.C. § 636(c)(4); Fed. R. Civ. P.
73(b)(3). This “is a high bar that is difficult to satisfy,” and
is intended to “prevent[] gamesmanship.” Savoca v. United
States, 199 F. Supp. 3d 716, 721 (S.D.N.Y. 2016). Neither
mere dissatisfaction with a magistrate judge’s decision, nor
unadorned accusations that such decisions reflect judicial
bias, will suffice. See Neville, 985 F.2d at 1000 (warning
against permitting a party “to hold the power of consent over
the magistrate like a sword of Damocles, ready to strike the
reference should the magistrate issue a ruling not quite to the
party’s liking”) (quoting Carter, 816 F.2d at 1020–21);
Sanches v. Carrollton-Farmers Branch Indep. School Dist.,
647 F.3d 156, 172 (5th Cir. 2011) (“Dissatisfaction with a
magistrate judge’s decision does not constitute
‘extraordinary circumstances.’”). If the district court finds
that Branch’s request meets this high standard—a point on
which we express no opinion—then the court shall vacate
the judgment. See Anderson, 351 F.3d at 919.
B. The Dismissal of Branch’s Claims at the Screening
Stage
Branch contends that the magistrate judges who screened
his various amended complaints erred in dismissing several
claims. We do not reach the merits of that argument,
however, because we conclude that the magistrate judges
BRANCH V. UMPHENOUR 19
who screened the complaints lacked jurisdiction to dismiss
his claims.
At the time of the various screenings, none of the
defendants had yet consented to the jurisdiction of the
magistrate judge. “Section 636(c)(1) . . . requires consent of
all parties—not a subset of them—for jurisdiction to vest in
the magistrate judge.” Williams v. King, 875 F.3d 500, 503–
04 (9th Cir. 2017). Thus, all defendants, even unserved
defendants, must consent before a magistrate judge can issue
dispositive orders, such as an order dismissing a claim. Id. at
504. Without consent, a magistrate judge is limited to
submitting a report and recommendation on dispositive
pretrial motions, including motions to dismiss for failure to
state a claim. See 28 U.S.C. § 636(b)(1)(A), (B).
The magistrate judges who screened Branch’s various
complaints lacked jurisdiction to dismiss his claims. We
accordingly vacate the dismissals of those claims and
remand for further proceedings. Williams, 875 F.3d at 505. 10
C. Branch’s Evidentiary and Discovery-Related
Arguments
Branch raises two additional arguments, but they do not
merit relief.
10
If, on remand, those claims survive review, the district court may
wish to consider whether any of the claims that proceeded to trial and
final judgment are “extremely closely related” to the now-reinstated
claims, such that vacatur of the verdict on the already-tried claims is
necessary “so that the related claims can be heard jointly and the
evidence evaluated in its totality.” Pena v. Meeker, 435 F. App’x 602,
604 (9th Cir. 2011) (mem.).
20 BRANCH V. UMPHENOUR
First, Branch argues that the trial court improperly
denied his motion to compel an interrogatory response
regarding the Chronos. We review the denial of a motion to
compel discovery for abuse of discretion. Stevens v.
Corelogic, Inc., 899 F.3d 666, 677 (9th Cir. 2018). The trial
court’s “decision to deny discovery will not be disturbed
except upon the clearest showing that denial of discovery
results in actual and substantial prejudice to the complaining
litigant.” Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir.
2002) (quoting Goehring v. Brophy, 94 F.3d 1294, 1305 (9th
Cir. 1996)).
We agree with Branch that the trial court’s rationale for
denying his motion to compel does not withstand scrutiny.
The trial court first reasoned that because neither party had
attached the interrogatories or responses, the papers “d[id]
not offer sufficient information for the court to fairly resolve
Plaintiff’s motion to compel on the merits.” The parties
agree that this was incorrect; as the record reveals,
defendants’ opposition papers included the interrogatory and
their response as exhibits. The trial court was therefore
armed with all the information it needed to resolve Branch’s
motion.
Nor can the denial be sustained on the ground of
attorney-client privilege, as the trial court held in denying
Branch’s two motions for reconsideration. “The attorney-
client privilege protects confidential disclosures made by a
client to an attorney in order to obtain legal advice . . . as
well as an attorney’s advice in response to such disclosures.”
United States v. Ruehle, 583 F.3d 600, 608 (9th Cir. 2009)
(quoting United States v. Bauer, 132 F.3d 504, 507 (9th Cir.
1997)) (alteration in original). “The party asserting the
privilege bears the burden of proving each essential
element.” United States v. Graf, 610 F.3d 1148, 1156 (9th
BRANCH V. UMPHENOUR 21
Cir. 2010) (quoting Ruehle, 583 F.3d at 607). “Because it
impedes full and free discovery of the truth, the attorney-
client privilege is strictly construed.” Id. (quoting Ruehle,
583 F.3d at 607). Here, Branch did not seek to discover
privileged communications; he did not seek to discover
communications at all. He did not ask what the defendants
told their counsel, or what their counsel told them. He asked
why they did not inform their counsel of the existence of the
Chronos at the time they were served with his complaint. A
party’s motivation for not communicating information to an
attorney is not privileged.
Nonetheless, this error does not warrant reversal because
the information sought was barely relevant, if at all. Branch
hoped to argue that the timing of the discovery of the
Chronos was suspicious, suggesting that the reports may
have been fabricated or doctored. But the Chronos were
never admitted at trial, so that argument could not possibly
have changed the result. Moreover, Branch’s theory was
wildly speculative. Poor memory or oversight is a much
more plausible explanation for the late discovery of the
Chronos. Branch argues on appeal that he wanted to discover
when Officers Szalai and Alvarez remembered the Chronos
existed, but that information is not relevant either, and even
if it were, that is not the question posed by the interrogatory.
The denial of Branch’s motion to compel did not “result[] in
actual and substantial prejudice,” Hallett, 296 F.3d at 751,
and so does not require reversal.
Second, Branch challenges various trial evidentiary
rulings. We find no abuse of discretion in the trial court’s
rulings. See Torres v. City of Los Angeles, 548 F.3d 1197,
1206 (9th Cir. 2008). For example, Branch argues that he
should have been permitted to question Szalai, on recross-
examination, about the Chronos. But the court did allow
22 BRANCH V. UMPHENOUR
Branch to go into this topic at some length, over objection
from defendants. Moreover, while Branch now suggests, on
appeal, several questions that he might have wanted to ask
of Szalai, they are totally different from the questions he
asked at trial. The trial court cannot be faulted for
“precluding” Branch from asking questions he never posed.
Similarly, Branch claims that the trial court improperly
refused to admit any of his exhibits at trial. The record does
not support that contention. Several of the exhibits, mostly
prison records, were properly excluded, as they contained
unauthenticated writing or were not supported by adequate
foundation testimony. The trial judge repeatedly explained
to Branch the necessity of calling a foundation witness;
Branch’s failure to do so is not attributable to the court. And
while Branch complains that his eyewitness declaration was
excluded, in fact the trial court ruled that it was admissible,
but Branch failed to formally move it into evidence. While
it might have been preferable for the trial court to remind
Branch of the necessity of doing so before resting, the
oversight does not warrant reversal. The declaration was
admissible only to prove that Branch engaged in protected
activity, a proposition that defendants never seriously
challenged at trial.
In short, none of the evidentiary rulings Branch
complains of on appeal were erroneous.
CONCLUSION
For the foregoing reasons, we vacate in part and remand
with instructions. Specifically, we vacate the magistrate
judge’s denial of Branch’s motion to withdraw consent to the
magistrate judge’s jurisdiction. We remand with instructions
to the district judge to consider that motion de novo. If the
district judge finds that Branch ought to have been permitted
BRANCH V. UMPHENOUR 23
to withdraw consent, the district judge is to vacate the
judgment entered by the magistrate judge. We further vacate
the screening orders entered by various magistrate judges
that dismissed certain of Branch’s claims and remand for
further proceedings on those claims. Each party shall bear its
own costs on appeal.
VACATED AND REMANDED.