U.S., In re
| Citation | 816 F.2d 1083 |
| Decision Date | 08 April 1987 |
| Docket Number | No. 86-3474,86-3474 |
| Parties | , 7 Fed.R.Serv.3d 659, 17 Envtl. L. Rep. 20,663 In re UNITED STATES of America, Petitioner. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
F. Henry Habicht, II, Asst. Atty. Gen. Jacques B. Gelin, Patricia Gail Littlefield, David C. Shilton, Albert M. Ferlo, Jr., Attys., Dept. of Justice, Washington, D.C., Peter R. Steenland, Jr. (argued), Steven D. Bell, Asst. U.S. Atty., Cleveland, Ohio, Jonathan McPhee, U.S. E.P.A., Region V, Chicago, Ill., Helen Keplinger, Office of Enforcement & Compliance, Washington, D.C., for appellee.
William P. Bobulsky, Ashtabula, Ohio, for Laskin & Poplar.
Robert M. McNair, Robert M. McNair Co., LPA, Jefferson, Ohio, Michael L. Hardy, Thompson, Hine and Flory, Cleveland, Ohio, for Warren.
Thomas P. Meaney, Jr., Cleveland, Ohio, for Schlumberger.
Cornelius C. Smith, Jr., Danbury, Conn., Karen B. Newborn, Baker & Hostetler, Cleveland, Ohio, for Union Carbide.
Louis Tosi, Fuller & Henry, Toledo, Ohio, for General Motors.
Clay Mock, Arter & Hadden, Cleveland, Ohio, for Be-Kan.
Thomas Sivak, Environmental Counsel, Pittsburgh, Pa., for Koppers.
William Smith, Calfee, Halter & Griswold, Cleveland, Ohio, for Union Carbide.
Jeffrey G. Miller, Thomas Hays, Verner, Liipfert, Bernhard, McPherson and Hand, Washington, D.C., for other respondents.
Michael L. Hardy, Thompson, Hine and Flory, Cleveland, Ohio, for Rockwell.
W. Mowry Connelly, Michael T. McMenamin, Marcia E. Hurt, Walter, Haverfield, Buescher & Chockly, Maureen Brennan, Environmental Counsel, Cleveland, Ohio, for TRW.
Before MERRITT and MILBURN, Circuit Judges, and PECK, Senior Circuit Judge.
The United States of America petitions this court to issue a writ of mandamus directing the United States District Court for the Northern District of Ohio to limit its order of reference to a special master, in the underlying action, to discovery and other procedural, nondispositive matters. The government contends that the district court abused its discretion under Federal Rule of Civil Procedure 53(b) in authorizing a special master to review and submit recommendations on motions for summary judgment and other potentially dispositive motions. For the reasons set forth below, we will grant the government's petition.
The United States instituted the underlying action on June 22, 1984, under the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"), 42 U.S.C. Sec. 9601 et seq., seeking the recovery of past preliminary cleanup costs incurred at a hazardous waste site in Ohio. On March 8, 1985, the district court issued an order which in effect stayed the proceedings pending settlement negotiations. In April and May of 1985, "a continuously more frustrated Court learned that the settlement abyss between the parties seemed to be widening rather than narrowing." In its order of June 24, 1985, the court determined that there would be "one last effort to avoid the extraordinarily expensive, time-consuming, and burdensome litigation which may well be inevitable." Accordingly, the court ordered the parties to submit a joint stipulated agreement in the form of a proposed case management order by July 12, 1985. The court warned that if no proposed case management order was submitted by that date, the court would "hear reasons that a special master should not be appointed."
On July 12, 1985, counsel for the government informed the district court that the parties had been unable to agree on a case management order. The government further submitted that it would be inappropriate to refer the case to a special master. On September 13, 1985, the district court granted the government's motion to voluntarily dismiss, without prejudice, its request for declaratory judgment. Further, the district court ordered that it would appoint a special master, holding:
The representations of the parties regarding the complexity and volume this case is likely to achieve, as well as the Court's independent examination of the pleadings have convinced the Court that "exceptional conditions" require a reference to a special master. Fed.R.Civ.P. 53. Accordingly, the Court shall appoint a special master, to be paid by the parties, to hear evidence, make findings of fact, propose conclusions of law, handle discovery, and supervise this case in every other way permissible by the Federal Rules and the United States Code.
On September 23, 1985, the government filed a response arguing that the record did not reveal the existence of "exceptional circumstances" sufficient to warrant reference to a special master under Rule 53(b). The government further stated that, notwithstanding its general opposition to a reference, it would concede to a limited reference of discovery matters to a special master.
On January 2, 1986, the court appointed a special master, providing her with the authority to, among other things, "submit recommendations on all motions filed in this action after ordering sufficient briefing and an oral hearing, if necessary." On January 14, 1986, the court granted a stay of the implementation of its January 2, 1986 order to allow the parties to brief their objections thereto. On January 27, 1986, the government filed a memorandum contending that the court erred in granting the special master authority to submit recommendations on all motions. The government also contested the validity of the reference in its entirety, as well as the court's requirement that the government pay one-half of the special master's fees. 1
On March 31, 1986, the district court issued an order lifting the stay imposed on January 14, 1986, and rejecting the government's arguments in opposition to the reference, reasoning:
The government's most serious challenge is to the Court's authority to appoint a Master in this case at all. Still, the cases cited by the government in no way address the instant case in which the defendants have stated their intention to add at least 264 additional parties and in which the challenged order of reference deals only with pretrial matters. This case will require constant, daily monitoring to guarantee efficient management.
It is not calendar congestion, complexity of the issues, or the possibility of a lengthy trial which resulted in the Court's order of reference. See LaBuy v. Howes Leather Co., 352 U.S. 249 [77 S.Ct. 309, 1 L.Ed.2d 290] (1957). It is factors like these combined with the extraordinary pretrial management which will be required in a case with more than 250 parties and the public interest in the quickest feasible resolution of Superfund cases which weigh in favor of the appointment of a Special Master. See United States v. Conservation Chemical Company, 106 F.R.D. 210, 219 (W.D.Mo.1985), and cases cited therein. The Eighth Circuit has explicitly recognized the propriety of pre-trial supervision by a Special Master in a complex CERCLA case. In Re: Armco, Inc., et al., 85-1598 (8th Cir. July 18, 1985).
Joint Appendix at 50-51 (emphasis in original). The district court subsequently granted the government's motion to delay the initial meeting with the special master.
On May 28, 1986, the government filed the present petition pursuant to the All Writs Act, 28 U.S.C. Sec. 1651(a). 2 On June 9, 1986, a panel of this court issued an order requesting the district judge to file a response. The district judge thereafter informed the court by letter that he did not wish to appear or file a response and that he would rely on his orders filed in the district court. None of the defendants filed a brief or participated in oral argument.
At the outset, we note that mandamus is an accepted means to challenge a district court's order referring matters to a special master under Rule 53. See La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957) (). It is within "the sound discretion of the court" to grant or withhold the writ if it finds that "exceptional circumstances ... warrant the use of the extraordinary remedy of mandamus." Id. at 255, 256, 77 S.Ct. at 313 (quoting Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 25, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943)).
Our standard of review of the district court's action is whether "the orders of reference were an abuse of the [district court's] power under Rule 53(b)." La Buy, 352 U.S. at 256, 77 S.Ct. at 313, see also Bradshaw v. Thompson, 454 F.2d 75, 80 (6th Cir.) ("The decision to appoint a master whose function is to aid the judge in the performance of specific judicial duties, is within the discretion of the District Court."), cert. denied, 409 U.S. 878, 93 S.Ct. 130, 34 L.Ed.2d 131 (1972).
Fed.R.Civ.P. 53(b) provides:
A reference to a master shall be the exception and not the rule. In actions to be tried by a jury, a reference shall be made only when the issues are complicated; in actions to be tried without a jury, save in matters of account and of difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it. Upon the consent of the parties, a magistrate may be designated to serve as a special master without regard to the provisions of this subdivision.
Because the underlying action in the present case is to be tried to the court and since the reference is of matters other than account or difficult computation of damages, the reference must be supported by a showing of "some exceptional condition." See, e.g., Jack Walters & Sons Corp. v. Morton Building, Inc., 737 F.2d 698, 712 (7th Cir.), cert. denied, 469 U.S. 1018, 105 S.Ct. 432, 83 L.Ed.2d 359 (1984). The leading case addressing this issue is the Supreme Court's opinion in La Buy, supra. The Rule 53(b) controversy in La Buy arose out of two antitrust actions...
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