By order of this court entered on September 29, 1977, the parties were requested to respond to the question of whether or not this court had jurisdiction to entertain this appeal directly from a "judgment" entered by a United States Magistrate granting defendants' motion to dismiss for failure to state a cause of action. It was further ordered on October 26, 1977, that the jurisdiction issue be taken with the case when argued on the merits. We believe this court lacks jurisdiction.

Plaintiff filed in the Circuit Court of Williamson County, Illinois, a complaint against the sheriff of that county, the surety on the sheriff's official bond, and two deputy U. S. Marshals of the Eastern District of Illinois seeking money damages alleging that plaintiff had been unlawfully detained overnight in the Williamson County Jail after his arrest by the deputy marshals on a federal warrant. The United States Attorney, on behalf of the deputy marshals, filed a Petition for Removal to the United States District Court. Defendants filed motions to dismiss plaintiff's complaint for failure to state a claim upon which relief could be granted. Thereafter the district judge entered an Order of Reference to the United States Magistrate stated to be in accordance with 28 U.S.C. § 636,1 Rule 38 of the Rules of Practice for the United States District Court,2 and pursuant to stipulation of the parties3 "for the purposes of conducting all proceedings, including trial and entry of final judgment." The magistrate denied plaintiff's motion to remand to the state court, and allowed defendants' motions to dismiss the complaint for failure to state a cause of action. On April 15, 1977, the magistrate entered what purports to be a "judgment" dismissing the case.4 Plaintiff appealed.

Section 636(b)(1)(A) specifically excepts a motion to dismiss for failure to state a claim upon which relief can be granted from the pretrial matters which a judge may designate a magistrate to hear. In this case there was no recommendation made by the magistrate for disposition by the judge as contemplated in Section 636(b)(1)(B).

Rule 38(b)(5)(C) of the district court regulating the duties and powers of the full-time magistrate, adopted pursuant to Section 636(b)(4), apparently relies on 636(b)(3) which permits the assignment of additional duties to the magistrate not inconsistent with the Constitution and laws of the United States. We do not read the statute as permitting under the latter general section that which is specifically prohibited by preceding Section 636(b)(1) (A). The statute makes no mention, no exception, and grants no additional power to a magistrate by reason of the consent of the parties, and in particular no otherwise excepted power to enter final judgment following the magistrate's ruling on a dispositive motion.5

Nor does the legislative history of the Act suggest such a broad interpretation that would support this rule of the district court.6 It appears that it was not intended that the magistrate would have the power to hear and determine dispositive motions. It was only intended that a judge could assign a dispositive motion to a magistrate for hearing and submission of proposed findings and recommendation to the judge for ultimate disposition. The adjudicatory power over dispositive motions was to be exercised only by the judge, but it could be with the assistance and upon the recommendation of the magistrate. Section 636(b)(3) permits the assignment of additional duties to a magistrate not inconsistent with the Constitution and laws of the United States. It was anticipated that this subsection would permit innovative experimentation by the courts. However, the examples given in the legislative history, such as review of default judgments and acceptance of returns of jury verdicts if the judge is unavailable, together with other administrative type functions, such as the appointment of attorneys in criminal cases, strongly suggests the statute's intended limitations. Innovative experiments may be admirable, and considering the heavy case loads in the district courts, understandable, but experiments must stay within the limitations of the statute.7

Consent is a form of waiver. Certain Constitutional rights, trial by jury rather than by the court, prosecution by indictment rather than by information, and other similar rights may be knowingly waived. Here, however, more is involved than mere waiver. By consent the parties attempt not only to waive the right to have the matter determined by the court, but attempt to confer jurisdiction upon the magistrate which the magistrate does not possess, and to amend the appellate process to provide that this court, not the district court, shall directly review the work of the magistrate.

By this decision we do not intend to imply that the magistrate's attempted resolution of the matter was otherwise erroneous. Although briefed and argued, there is no need to reach the merits.

APPEAL DISMISSED.