Document Type

Court Brief

Publication Date



These amicus briefs are likely to interest legal academics and practitioners who write, research, and practice in the areas of (1) federal courts, (2) class actions, (3) separation of powers, (4) constitutional law more generally, and (4) federal litigation.

In Day v. Persels & Associates, 729 F.3d 1309 (11th Cir. 2013), an absent class member objected to a class-action settlement. The objector argued that the settlement was unfair because, among other reasons, it provided no monetary recovery to the class members. In the district court, prior to class certification and settlement, the defendants and the named plaintiff had consented to authorize a federal magistrate judge to enter a final judgment in the action as permitted by 28 U.S.C. 636(c).When a magistrate judge enters a final judgment under section 636(c), the judgment is appealable directly to the court of appeals. No Article III district judge has any decision making role.

In the lower court in Day, the magistrate judge approved the class-action settlement, and the objector appealed directly to the Eleventh Circuit. At that point, my client—the National Association of Consumer Advocates (NACA)—entered the picture as an amicus. NACA argued (in order of breadth) that (1) 28 U.S.C. 636(c) is unconstitutional because consent is an insufficient basis to override the general constitutional requirement that only an Article III judge (and not a non-life-tenured magistrate judge) may enter a final federal-court judgment; (2) even if the parties’ consent to a magistrate judge ordinarily would suffice to make 28 U.S.C. 636(c) constitutional, the named parties’ consent in a class action is not constitutionally sufficient to bind absent class members because, as the class-action device ordinarily operates, absent class members lack the ability to provide the knowing and voluntary consent necessary to section 636(c)’s constitutionality; and (3) at a minimum, if section 636(c) can be constitutionally employed in a class action, due process demands that the absent class members be notified that the class representatives have decided to give up the absent class members’ constitutional rights to have their case decided by an Article III judge (which the class notice in Day did not do). If the absent class members are notified, they can choose to register their lack of consent to the magistrate judge, in which case the district judge presumably would take over and exercise decision making authority.

No party raised these constitutional issues in the district court or in the court of appeals. NACA maintained, however, that because these issues went to the district court’s jurisdiction—that is, the court’s constitutional power to adjudicate—its arguments had to be considered by the Eleventh Circuit. For the same reason, NACA asked for permission both to file an amicus reply brief and to present oral argument—both of which the Eleventh Circuit granted.

Though it reversed approval of the settlement on narrow grounds related to the merits of the settlement, the Eleventh Circuit rejected NACA’s jurisdictional arguments by a vote of 2-1 in an opinion by Circuit Judge William Pryor. Day, 729 F.3d at 1316-1326. U.S. District Judge Philip Pro, sitting by designation, dissented in relevant part. Id. at 1328-1339. Relying in large part on the reasons provided by NACA, Judge Pro would have ruled on statutory (and not constitutional) grounds that the “parties” eligible to grant consent to a magistrate judge under 28 U.S.C. 636(c) do not include absent class members. (Interestingly, before he was a district judge, Judge Pro served as a magistrate judge. He has published articles on the role of magistrate judges in the federal judicial system. After Judge Pro became a district judge, Chief Justice Rehnquist appointed him chair of the Committee on the Administration of the Magistrate Judges System of the Judicial Conference of the United States.)

The question whether the magistrate-judge consent provision of 28 U.S.C. 636(c) is constitutional may take on added importance in light of Executive Benefits Insurance Agency v. Arkison, No. 12-1200 (U.S. argued Jan. 14, 2014), which will be decided this Term by the Supreme Court. Executive Benefits presents a variety of questions about the constitutionality of party consent to adjudication by an Article I bankruptcy judge to decide questions that, in the absent of consent, could only be decided by an Article III judge.

A final note: In approving the class-action settlement in Day, the magistrate judge deferred to the settling lawyers’ recommendation that the settlement was a good deal for the class and to what the magistrate judge viewed as the excellent reputations and abilities of the lawyers for class. NACA’s amicus briefs strenuously objected to this holding, which, unfortunately, finds considerable support in class-action case law. NACA argued that the magistrate judge’s deference holding was at odds with the respective roles of lawyers and judges in the adversary system and with judicial independence. NACA argued that deference to lawyers’ reputations and abilities should never play a role in judicial decision making, especially in the class-action context. See Brian Wolfman, Judges! Stop Deferring to Class-Action Lawyers, 2 U. Mich. J.L. Reform (online) 80A (2013). The Eleventh Circuit in Day did not reach this argument.


Docket No. 12-11887