“Preserve It or Lose It”: Third Circuit Reaffirms Waiver for Failure to Challenge Magistrate’s Denial of Counsel and Upholds Immunity Bar to § 1983 Claims Against State Family‑Court Actors

Introduction

In a non‑precedential per curiam decision, the United States Court of Appeals for the Third Circuit affirmed the dismissal of a pro se civil rights suit arising out of contentious family‑court litigation. The case, Andrew M. Podems v. New Jersey Department of Justice, et al. (No. 24‑1811, Apr. 3, 2025), centers on two recurring themes in federal practice: the strict preservation rules governing appellate review of magistrate judge orders and the formidable immunity doctrines shielding states, judges, and court‑adjacent officers from suit.

The appellant, Andrew Podems, alleged numerous constitutional and statutory violations tied to state family‑court proceedings involving child support, parenting time, and related enforcement measures. After several rounds of amended pleadings, the district court dismissed his fourth amended complaint under Federal Rule of Civil Procedure 12(b)(1) based largely on Eleventh Amendment sovereign immunity and judicial/quasi‑judicial immunity, and it found no viable exception under Ex parte Young for prospective relief. On appeal, Podems principally attacked the magistrate judge’s denial of his requests for appointed counsel under 28 U.S.C. § 1915(e)(1).

The Third Circuit held that because Podems failed to timely seek district‑judge review of the magistrate judge’s nondispositive orders—as required by 28 U.S.C. § 636(b)(1)(A) and District of New Jersey Local Civil Rule 72.1—he forfeited appellate review of the denial‑of‑counsel issue. The court further explained that even if it reached the merits, it would find no abuse of discretion in denying counsel because the pleadings lacked “arguable merit,” particularly given the immunity barriers. The panel also affirmed the sovereign and judicial immunity rulings and rejected efforts to expand the appellate record.

Summary of the Opinion

Preservation and Waiver: The court held that a party who wishes to challenge a magistrate judge’s nondispositive order must timely seek review by the district judge. Failure to do so waives the issue on appeal. Podems did not file a timely appeal of the magistrate judge’s orders denying appointed counsel; therefore, the Third Circuit declined to reach the merits of those rulings.
Denial of Counsel (Alternative Holding): Even if the court considered the issue, it would find no abuse of discretion under the Tabron/Montgomery framework because Podems’s pleadings lacked arguable merit in light of Eleventh Amendment, judicial, and quasi‑judicial immunity.
Immunities and Subject‑Matter Jurisdiction: The district court properly dismissed under Rule 12(b)(1) because (i) the state and its arms are protected by sovereign immunity; (ii) judges and court‑adjacent hearing officers are protected by judicial or quasi‑judicial immunity; (iii) the complaint did not fit within Ex parte Young’s narrow exception for prospective relief against ongoing violations of federal law; and (iv) to the extent any other claims were intended, subject‑matter jurisdiction was lacking.
Pro Se Leniency on Pleading Formalities: Although the complaint repeatedly violated Rule 10(b)’s paragraphing requirements, the district court exercised leniency consistent with Third Circuit guidance on pro se filings and did not dismiss for that defect.
Record‑Expansion Motions: The Third Circuit granted Podems’s request to add pages of argument to his opening brief but denied his motions to expand the record because the standard under Federal Rule of Appellate Procedure 10(e) was not satisfied. The court took judicial notice of cited court decisions.
Disposition: Judgment of the district court affirmed in full.

Analysis

Precedents and Authorities Driving the Decision

Preservation/waiver of magistrate judge orders: The panel relied on United Steelworkers of America, AFL‑CIO v. New Jersey Zinc Co., 828 F.2d 1001, 1007–08 (3d Cir. 1987), holding that parties must timely appeal a magistrate judge’s nondispositive pretrial order to the district judge to preserve the issue for appellate review. This requirement is grounded in 28 U.S.C. § 636(b)(1)(A) and enforced locally by D.N.J. L. Civ. R. 72.1, which imposes a 14‑day timeline. Consistent with United States v. Polishan, 336 F.3d 234, 241 (3d Cir. 2003), and Dun & Bradstreet Software Services, Inc. v. Grace Consulting, Inc., 307 F.3d 197, 220–21 (3d Cir. 2002), unpreserved issues are not reviewed on appeal absent “extraordinary circumstances,” which the court did not find here.
Advisory guidance for pro se litigants: The court echoed an earlier admonition in Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983), that a “better practice” is for magistrate judges to inform pro se litigants that they must seek timely review by the district judge to preserve appellate rights. While not a constitutional requirement, it is an important practice pointer for trial courts.
Standard for appointed counsel: Denials of appointed counsel are reviewed for abuse of discretion, see Houser v. Folino, 927 F.3d 693, 697 (3d Cir. 2019). The two‑step framework originates in Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993), and Montgomery v. Pinchak, 294 F.3d 492 (3d Cir. 2002). Courts first determine whether the case has “arguable merit.” If so, they consider additional factors (litigant’s ability to present, complexity, need for investigation, ability to retain counsel, credibility disputes, need for experts), while mindful that volunteer lawyer time is a “precious commodity” that should not be expended on frivolous cases (Montgomery, 294 F.3d at 499).
Sovereign immunity: The Supreme Court’s decision in P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993), confirms that states and their agencies are immune from suit in federal court absent waiver or valid congressional abrogation. The district court dismissed the claims against the state judiciary and child support enforcement arm on Eleventh Amendment grounds.
Judicial and quasi‑judicial immunity: Mireles v. Waco, 502 U.S. 9, 12–13 (1991) (per curiam), underscores absolute judicial immunity for judicial acts, even if erroneous or in excess of authority. The Third Circuit’s Russell v. Richardson, 905 F.3d 239, 247 (3d Cir. 2018), extends quasi‑judicial immunity to officers who perform judicial functions or act as arms of the court, which typically includes family‑court hearing officers in child‑support contexts.
Ex parte Young exception: MCI Telecommunications Corp. v. Bell Atlantic Pennsylvania, 271 F.3d 491, 506 (3d Cir. 2001), describes Ex parte Young’s narrow path for suing state officers in their official capacities for prospective relief to end an ongoing violation of federal law. The district court found, and the panel accepted, that Podems did not plausibly plead this exception.
Pro se leniency on procedural formalities: Citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013), the court approved the district court’s choice not to dismiss for serial violations of Rule 10(b), recognizing flexibility in applying procedural rules to pro se pleadings.
Appellate record: The court referenced Orabi v. Attorney General, 738 F.3d 535, 537 n.1 (3d Cir. 2014), and In re Indian Palms Associates, Ltd., 61 F.3d 197, 205–06 (3d Cir. 1995), to take judicial notice of court decisions, while denying record expansion under Fed. R. App. P. 10(e).

Legal Reasoning

The panel’s reasoning proceeds in two tracks—appellate procedure and merits defenses—both of which independently support affirmance.

1) Appellate Preservation: failure to seek district‑judge review is fatal

The court emphasized that the magistrate judge’s authority to decide the appointed‑counsel motions derived from 28 U.S.C. § 636(b)(1)(A). Under Third Circuit precedent and D.N.J. Local Civil Rule 72.1(c)(1)(A), a party who wishes to challenge such a nondispositive ruling must file a timely appeal to the district judge, typically within 14 days of service of the magistrate judge’s order. Podems never filed such an appeal for either denial‑of‑counsel order. Absent “extraordinary circumstances,” which were not present here, the failure to follow this mandatory path waives appellate review. That alone disposed of his central argument on appeal.

The panel also noted an important practice pointer for trial courts: consistent with Siers v. Morrash, magistrate judges should advise pro se litigants of the need to seek timely district‑judge review to preserve issues for appeal. The court did not impose a formal requirement or find such advice was given or withheld here; rather, it used Siers to underscore the practical imperative in pro se cases.

2) Appointed Counsel: no abuse of discretion even if reviewed

Assuming arguendo that the court excused the preservation failure, the result would be the same. Applying the Tabron/Montgomery framework, the magistrate judge denied counsel because the claims lacked “arguable merit.” The Third Circuit agreed. On the face of the pleadings and as explained by the district court, the defendants—state entities, judges, and hearing officers—were protected by Eleventh Amendment sovereign immunity and judicial/quasi‑judicial immunity. Because the complaint did not plausibly invoke Ex parte Young for prospective relief, the claims did not clear the threshold for appointment of counsel. Within the Third Circuit, courts are admonished to conserve volunteer attorney time for cases with at least arguable merit; this one did not qualify.

3) Immunities and jurisdiction bar the suit

The district court’s Rule 12(b)(1) dismissal rested on three related findings:

Sovereign immunity: The New Jersey Judiciary and the child support enforcement unit are arms of the state and not amenable to suit for damages in federal court absent waiver or valid abrogation. None was alleged, and none applied.
Judicial/quasi‑judicial immunity: The individual non‑entity defendants were judges and family‑court hearing officers. Their alleged actions—handling support modifications, parenting‑time requests, enforcement levies, and contempt proceedings—were judicial acts or functionally comparable, cloaking them with absolute immunity from suit.
No Ex parte Young path: The complaint did not plausibly allege an ongoing violation of federal law by a properly named state officer capable of providing prospective relief. Instead, it sought redress for past harms and challenged adjudicative decisions, which cannot be relitigated via § 1983 against judicial officers.

Finally, the district court concluded that any other claims not caught by immunity were jurisdictionally defective. The Third Circuit did not elaborate on the specific doctrines implicated, but in domestic‑relations‑adjacent litigation those often include the Rooker‑Feldman doctrine or the domestic relations exception. In any event, the panel affirmed the district court’s bottom‑line jurisdictional determination.

4) Procedural leniency without relaxing substantive thresholds

The district court declined to dismiss the complaint for repeated violations of Rule 10(b)’s requirement to use numbered paragraphs limited to single sets of circumstances—consistent with Mala’s instruction to apply procedural rules flexibly to pro se pleadings. But leniency on formatting does not relax substantive hurdles like immunity and jurisdiction. The Third Circuit’s affirmance reflects this balance: generosity on form, rigor on substance.

5) Appellate motions practice

The court allowed Podems to add several pages of argument to his opening brief and considered them as if included originally. But it denied his motions to expand the appellate record because he failed to satisfy Rule 10(e), which is confined to ensuring the record accurately reflects what occurred below, not to introduce new material. To the extent he cited other court decisions, the panel took judicial notice of those decisions, rendering record expansion unnecessary for that purpose.

Impact and Practical Implications

Preservation of rights in pro se litigation: The decision underscores a bright‑line requirement in the Third Circuit: to preserve any challenge to a magistrate judge’s nondispositive order (including denial of appointed counsel), a litigant must file a timely appeal to the district judge under § 636(b)(1)(A) and applicable local rules. Pro se status does not excuse noncompliance.
Appointment of counsel is not a cure for non‑meritorious claims: Courts will not appoint counsel under § 1915(e)(1) when threshold defects—like sovereign or judicial immunity—render claims non‑starters. Litigants should assess immunity defenses early; if the named defendants are immune, a request for appointed counsel is unlikely to succeed.
Limits on federal review of state family‑court actions: The opinion reinforces the high barrier to federal civil rights suits aimed at state family‑court proceedings. The state and its judiciary are typically immune; judges and hearing officers enjoy absolute immunity for adjudicative acts; and Ex parte Young is narrow, requiring a properly named state officer, an ongoing violation of federal law, and prospective relief.
Trial‑court best practices with pro se litigants: While not mandatory, the panel reiterates Siers’s “better practice” of informing pro se litigants that they must timely seek district‑judge review to preserve appellate rights. Doing so helps avoid avoidable waivers.
Appellate record management: Parties should not expect to expand the record on appeal except to correct inaccuracies under Rule 10(e). Courts may take judicial notice of other adjudicative records and opinions without expanding the record.
Non‑precedential but instructive: Although issued as a non‑precedential opinion under Third Circuit I.O.P. 5.7, the decision synthesizes and applies established, binding doctrines in a way that offers a clear roadmap for future litigants and courts confronting similar issues.

Complex Concepts Simplified

Eleventh Amendment sovereign immunity: The Constitution generally prevents private suits for damages against a state or its agencies in federal court, unless the state consents or Congress validly abrogates immunity (e.g., under Section 5 of the Fourteenth Amendment). State judicial branches and child‑support enforcement units are commonly treated as “arms of the state.”
Judicial immunity: Judges are absolutely immune from suits for money damages for actions taken in their judicial capacity, even if their decisions are wrong or exceed their authority. The exceptions (e.g., nonjudicial acts, clear absence of all jurisdiction) are very narrow.
Quasi‑judicial immunity: Court officers who perform functions integral to the judicial process (like family‑court hearing officers) are protected much like judges when acting within their adjudicative roles.
Ex parte Young: A legal fiction allowing suits for prospective injunctive or declaratory relief against state officials to stop ongoing violations of federal law. It does not allow retroactive monetary relief, does not apply to the state or its agencies, and requires naming an official with a connection to enforcing the challenged conduct. Suits aimed at adjudicative decisions typically do not fit.
Preservation and waiver: To obtain appellate review of a magistrate judge’s nondispositive order, a party must timely seek district‑judge review; failure to do so waives the issue. Pro se litigants must follow these steps like any other party.
Abuse of discretion: A deferential standard of review. A decision will be reversed only if it is based on a legal error, clearly erroneous findings, or a manifestly unreasonable judgment call. Denials of appointed counsel are reviewed this way.
FRAP 10(e) and judicial notice: Rule 10(e) allows correction of the appellate record to reflect what actually happened in the district court; it is not a vehicle to add new material. Courts may take judicial notice of other courts’ opinions and records without record expansion.
Rule 10(b) pleading format for pro se litigants: While courts apply formatting rules flexibly to pro se filings, leniency on form does not relax substantive doctrines like immunity and jurisdiction.

Conclusion

The Third Circuit’s decision in Podems delivers two clear messages. First, appellate review is conditioned on proper preservation: a party must timely seek district‑judge review of a magistrate judge’s nondispositive order—such as a denial of appointed counsel—or the issue is forfeited. Pro se status does not alter this rule, though the court urges trial judges to advise pro se litigants of the requirement. Second, the merits landscape in this class of cases is unforgiving. Suits against the state judiciary and court‑adjacent actors—arising from family‑court proceedings—are typically barred by a dense thicket of immunity doctrines, and Ex parte Young’s narrow path to prospective relief is frequently unavailable where the challenged acts are adjudicative or retrospective.

Although non‑precedential, the opinion is a practical primer on preservation mechanics, the Tabron/Montgomery counsel‑appointment framework, and the interplay of sovereign and judicial immunities in litigation shadowed by state family‑court actions. For litigants and counsel alike, the takeaways are straightforward: preserve your objections, assess immunity early, tailor any Ex parte Young theory with precision, and do not expect appointed counsel where the pleadings lack arguable merit.