Party can withdraw consent without showing good cause

Where a party consents to the jurisdiction of a magistrate judge, but then seeks to withdraw it before any other party consents, it need not show good cause to withdraw its consent.

Background

A district court may refer a case to a magistrate judge if all parties consent. Malcolm Muhammad at first consented to the referral of his case to a magistrate judge in his suit against state prison officials for violating his constitutional rights. But before the defendants consented, Muhammad sought to withdraw that consent. The district court rejected Muhammad’s efforts, finding first that he needed good cause to withdraw his consent and second that Muhammad failed to show good cause.

Good cause

This appeal boils down to whether a party, who previously consented to a referral to a magistrate judge, must show good cause to withdraw that consent when the other parties have not yet consented to the referral. If the answer is yes, the district court’s determination that Muhammad failed to show good cause is reviewed for abuse of discretion. But if the answer is no, the court must decide whether Muhammad should have been allowed to withdraw his consent to magistrate jurisdiction.

The statute does not address a party’s withdrawal of consent before a transfer. Thus, it certainly does not impose a good cause standard for withdrawing consent. The only mention of good cause in 28 U.S.C. § 636 comes in subsection (c)(4). That subsection provides that a district court may vacate the transfer “for good cause shown on its own motion, or under extraordinary circumstances shown by any party.”

But § 636(c)(4) only applies once a case has been transferred to the magistrate judge. It does not apply to one party’s consent to referral when the other parties have not also consented. That there is a good cause requirement to vacate a referral once the case has been transferred and not before is significant. Congress knew how to impose a good cause requirement in connection with its control over magistrate judge jurisdiction. Yet it did not impose that requirement for a party’s withdrawal of his or her consent before the other parties consented to magistrate judge jurisdiction. The court declines to judicially create a requirement Congress did not impose.

While there is limited authority on a party’s withdrawal of consent to the jurisdiction of a magistrate judge, two other circuits have addressed similar issues in different cases. Each supports the conclusion that good cause is not required. In sum, a party like Muhammad, who previously consented to the jurisdiction of the magistrate judge, but who sought to withdraw such consent before any other party consented, need not show good cause. The district court erred in requiring Muhammad to show good cause to withdraw his consent.

Merits

Without a good cause requirement, the court sees no reason Muhammad should not have been allowed to withdraw his consent to the jurisdiction of the magistrate judge. Section 636(c) imposes no limitations on withdrawal before all parties consented. And Muhammad filed his motion well before the defendants consented and well before the court ordered the referral. While difficult to imagine, perhaps there might be extraordinary circumstances when a party should not be allowed to withdraw its consent to magistrate jurisdiction before the other parties exercise their right to consent. But none are presented here.

As a final matter, the court notes that Muhammad’s apparent rationale for withdrawing his consent—to avoid a particular magistrate judge—does not justify denying Muhammad’s withdrawal. While phrases like “judge-shopping” sound sinister, Muhammad had every right to withhold consent to the jurisdiction of a magistrate judge based on the risk of being assigned to a judge with whom he had a negative experience.

What’s more, the defendants are not, as they suggest, on higher ground. They did not consent to the jurisdiction of the magistrate judge the first three times the district court issued a notice of their right to such a referral. Then, the fourth time the notice was issued, they failed to consent within the prescribed time. In fact, the defendants waited almost nine months before consenting and then only did so after the magistrate judge issued a report and recommendation favorable to them. Pot, meet kettle.

Vacated and remanded.

Muhammad v. Fleming, Case No. 20-6068, March 16, 2022. 4th Cir. (Quattlebaum), from WDVA at Roanoke (Sargent). S. Blake Davis for Appellant. Rohiniyurie Tashima for Appellees. VLW 022-2-076. 14 pp.