Kadonsky v. United States

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-11341 Conference Calendar

STEVEN J. KADONSKY, Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA, Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 96-CV-2969 -------------------- August 27, 1999

Before KING, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:* Steven J. Kadonsky appeals from a judgment issued by the

magistrate judge denying his claim for the return of currency

seized and subsequently administratively forfeited by the Drug

Enforcement Administration. For the reasons assigned, we dismiss

the appeal for lack of appellate jurisdiction.

The statutory authority for a magistrate judge to adjudicate

a matter is found in 28 U.S.C. § 636 (c), which provides in

pertinent part:

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 98-11341 -2- (1) Upon the consent of the parties, a . . . magistrate [judge] . . . 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....

(emphasis added). When a magistrate judge enters judgment

pursuant to § 636(c)(1), the absence of the parties’ consent and

a reference (or special designation) order from the district

court “results in a lack of jurisdiction (or at least fundamental

error that may be complained of for the first time on appeal).”

United States v. Muhammad, 165 F.3d 327, 330-31 (5th Cir. 1999)

(internal citation and quotation marks omitted), cert. denied, 119 S. Ct. 1795 (1999).

A review of the record reveals that Kadonsky never consented

to have this matter adjudicated by the magistrate judge.

Although the Government signed a form consenting to have the

magistrate judge decide this matter, Kadonsky did not. Nor does

the record indicate that the district court referred the matter

to the magistrate judge or otherwise specially designated her

pursuant to § 636(c)(1). As a result, the magistrate judge

lacked jurisdiction to enter judgment in this case. See

Muhammad, 165 F.3d at 330-31 .

The magistrate judge’s order, therefore, is not a final and

appealable one. Accordingly, this court is without jurisdiction,

and the appeal is DISMISSED. See Trufant v. Autocon, Inc., 729

F.2d 308, 309 (5th Cir. 1984).

DISMISSED