UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT L. THEEDE,

Plaintiff-Appellant,

v.

UNITED STATES DEPARTMENT OF LABOR; DEPARTMENT OF VETERANS AFFAIRS; ROBERT B. REICH, Secretary of Labor; OFFICE OF WORKERS' COMPENSATION PROGRAMS; ANDREW THARP; WILLIAM L. ROBERTS; CLARENCE H. NIXON; WAYNE D. THOMPSON; DEAN R. STORDAHL; AUSMA S. BLUMENTHAL; NEAL C. LAWSON; N. DIXON,

Defendants-Appellees.	No. 98-1071

(D.C. No. 97-B-388)

(D. Colo.)

ORDER AND JUDGMENT*

Before BRORBY, EBEL and LUCERO, Circuit Judges.

Pro se plaintiff-appellant Robert L. Theede ("Theede"), formerly employed as a dentist with the Veterans Administration, filed suit against defendants- appellees alleging that they unlawfully terminated his benefits under the Federal Employees' Compensation Act and discriminated against him on account of his age.

On July 28, 1997, District Judge Lewis T. Babcock issued the following "Order of Reference to United States Magistrate Judge":

Pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Fed. R. Civ. P. 72(a) and (b), United States Magistrate Judge Donald E. Abram is designated to conduct proceedings in this civil action as follows:

(X)	Convene a scheduling conference under Fed. R. Civ. P. 16(b) and enter a scheduling order meeting the requirements of D.C.COLO.LR 29.1.

(X)	Conduct such status conferences and issue such orders necessary for compliance with the scheduling order, including amendments or modifications of the scheduling order upon a showing of good cause.

(X)	Convene such settlement conferences and direct related procedures as may facilitate resolution of this case.

(X)	Hear and determine pretrial matters, including discovery and other non-dispositive motions.

( )	Conduct hearings, including evidentiary hearings, and submit proposed findings of fact and recommendations for rulings on dispositive motions.

(X)	Conduct a pretrial conference and enter a pretrial order.

IT IS ORDERED that this civil action is referred to the named magistrate judge to proceed according to the designations marked (X) above.

Theede v. United States Dep't of Labor, No. 97-B-388, Order of Reference to United States Magistrate Judge (July 28, 1997) (D. Ct. Doc. No. 12), at 1-2 (emphasis added). The district court clearly did not assign to the magistrate the power or jurisdiction to "conduct hearings, including evidentiary hearings, and submit proposed findings of fact and recommendations for rulings on dispositive motions." Title 28 U.S.C. § 636 (b)(1)1 and Fed. R. Civ. P. Rule 722 make clear that without designation or assignment, a magistrate judge is without the power to conduct hearings or submit to the district court any proposed findings of fact or recommendations for case disposition as to dispositive motions. Nonetheless, on October 20, 1997, Magistrate Judge Abram conducted a hearing on Theede's "motion for preliminary injunction, or temporary restraining order; Defendant's motion to dismiss; and Federal Defendant's motion for protective order staying any discovery." (Record on Appeal, Vol. II, at 2.) On December 2, 1997, Magistrate Judge Abram issued his recommendation that Theede's "Amended Complaint be dismissed as to all defendants with prejudice and the Motion for Preliminary Injunction be denied." Theede v. United States Dep't of Labor et al., No 97-B-388, Recommendation of United States Magistrate Judge (Record on Appeal, Vol. I, Doc. 48), at 5. The magistrate further recommended "that pursuant to Rule 11 Fed. R. Civ. P. Robert L. Theede be barred from filing complaints against the Department of Labor" and other of the defendants. Id.

As noted, the district court assigned to the magistrate neither the power to conduct hearings nor the power to make recommendations regarding dispositive motions. Without assignment, such powers are beyond the jurisdiction of the magistrate. Overlooking this defect, the district court, without any apparent independent review, noted that:

[T]en days have passed [since the magistrate's recommendation was issued] and no written responses have been filed to the recommendation, therefore, the parties are barred from a de novo determination. United States v. Raddatz, 447 U.S. 667, 676-83 (1980). Accordingly, IT IS ORDERED that the defendants' motion to dismiss is GRANTED and the amended complaint is DISMISSED WITH PREJUDICE.

Theede v. United States Dep't of Labor, No 97-B-388, Order (Record on Appeal, Vol. I, Doc. 50), at 1 (emphasis added). We disagree with the district court's conclusion that "the parties are barred from a de novo determination" for failing to file timely objections to a recommendation that was beyond the magistrate's jurisdiction to issue.

We find the district court's citation to Raddatz inapposite. In Raddatz, "the District Court referred the motion [to suppress] to a Magistrate for an evidentiary hearing [and a recommendation] pursuant to the Federal Magistrates Act, 28 U.S.C. § 636 (b)(1)(B)." 447 U.S. at 669. Further, the Raddatz Court made clear that the constitutionality of placing some traditional preliminary Article III tasks in non-Article III (magistrate) judges depended on the Article III (district) courts retaining "total control and jurisdiction":

Congress made clear that the district court has plenary discretion whether to authorize a magistrate to hold an evidentiary hearing and that the magistrate acts subsidiary to and only in aid of the district court. Thereafter, the entire process takes place under the district court's total control and jurisdiction.

Id. at 681.

Here, to affirm the district court's dismissal, without de novo review of the unauthorized recommendations of the magistrate would cede too much Article III power. Accordingly, we REVERSE the district court's order granting defendants' motion to dismiss, dismissing with prejudice Theede's amended complaint, and denying Theede's motion for preliminary injunction, and REMAND for a de novo consideration by the district court.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge