Hill v. Duriron Co., Inc., 79-3635
| Decision Date | 12 August 1981 |
| Docket Number | No. 79-3635,79-3635 |
| Citation | 656 F.2d 1208 |
| Parties | 26 Fair Empl.Prac.Cas. 977, 26 Empl. Prac. Dec. P 32,033 Donald and Ronald HILL, Plaintiffs-Appellants, v. The DURIRON COMPANY, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Alexander M. Spater, Columbus, Ohio, for plaintiffs-appellants.
Robert J. Brown, Smith & Schnacke, Dayton, Ohio, for defendant-appellee.
Before EDWARDS, Chief Judge, and LIVELY and JONES, Circuit Judges.
This is an action seeking reinstatement and back pay for the alleged discriminatory discharge from employment of the two plaintiffs who are black. The action was brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and the Civil Rights Act of 1866, 42 U.S.C. § 1981. After the defendant had answered and a preliminary pretrial order had been entered the district court entered the following order:
This matter is before the Court for a determination of appropriate reference to the United States Magistrate.
The matter for reference involves the necessity to conduct hearings, including evidentiary hearings, and the submission of proposed findings of fact and recommendations for disposition.
In accordance with 28 U.S.C. § 636(b)(1)B this matter is hereby referred to Robert A. Steinberg, United States Magistrate.
Some six weeks later the district court entered a second order of reference as follows:
ORDER OF REFERENCE
Pursuant to 28 U.S.C. § 636(b)(1)(B) and § 1.5(1) of General Order IX of this Court, Robert A. Steinberg, United States Magistrate, is hereby appointed as Special Master in this action.
The United States Magistrate is directed to hold hearings, receive evidence and report to the Court his recommended decision in this action. In the performance of this function, the United States Magistrate shall have all powers set forth in Rule 53(c) of the Federal Rules of Civil Procedure.
A transcript of the proceedings and of the evidence and the original exhibits need not be filed with the Magistrate's report.
The citations of 28 U.S.C. § 636 in the orders refer to the 1976 amendments to the Federal Magistrates Act (the Act), Pub.L. 94-577. 1
Shortly after the second order of reference was entered the defendant made a motion for partial summary judgment, contending that the plaintiffs had failed to comply with jurisdictional prerequisites for a suit based on Title VII of the 1964 Act. After receiving memoranda in support of and in opposition to this motion, Magistrate Steinberg filed a report and recommendation containing findings of fact and conclusions of law. The magistrate concluded that the court lacked jurisdiction to hear the Title VII action of Ronald Hill because it was filed out of time. The magistrate recommended that partial summary judgment be granted the defendant with respect to the Title VII claim of Ronald Hill and that it be denied with respect to that claim of Donald Hill. The district judge to whom the case was assigned and who had made the reference to the magistrate then entered an order adopting the report and recommendation of the magistrate in full, noting that no objections had been filed thereto.
After entering a final pretrial order, the magistrate permitted the plaintiffs to amend their complaint to set forth a claim that their discharge had constituted an act of retaliation based on race against the plaintiff Ronald Hill. A full hearing on the merits was then held before the magistrate. At no time in the one year between the first order of reference to Magistrate Steinberg and the trial or during the three and one-half months between the trial and the filing of the magistrate's report and recommended decision did the plaintiffs object in any manner to the orders of reference or the proceedings before the magistrate.
The report and recommendation of the magistrate, filed on May 10, 1979, contained 24 findings of fact, six conclusions of law and a recommendation that judgment be entered in favor of the defendant. The plaintiffs filed a motion to review the magistrate's findings. The motion contained objections to the report and a request that plaintiffs be given leave to file supplemental objections after they received a transcript of the hearing. This motion was filed ten days after notice of the filing of the magistrate's report as required by that notice. In their motion and supporting memorandum the plaintiffs contested the jurisdiction of the magistrate, contending that 28 U.S.C. § 636(b)(1)(B) under which the first order of reference was made does not permit references to a magistrate for the purpose of trial. They also contended that the second order of reference was invalid as an attempt to delegate "judicial decision making." Further, the plaintiffs argued that the district court was required to make a de novo determination with respect to their claim that the reasons given by the defendant for discharging them were pretextual. In a separate motion the plaintiffs stated that their objections to the magistrate's report and recommended decision were based on the fact that he had ignored substantial parts of the record in dealing with the question of whether the plaintiffs were treated differently from white employees. The plaintiffs asserted that review of the magistrate's report by the district court would be impossible without a transcript of the hearing.
On June 13, 1978 the district court entered the following final order:
This matter is before the Court pursuant to reference to the United States Magistrate as a special master pursuant to 28 U.S.C. § 636(b)(2), Rule 53 of the Federal Rules of Civil Procedure, and § 1.5(1) of Western Division Rule No. 1 in the United States District Court for the Southern District of Ohio. Pursuant to such reference the Magistrate held hearings at which evidence and testimony were presented and filed with this Court Findings of Fact and Recommendations for Disposition.
Rule 53(e)(2) contains the following:
In an action to be tried without a jury, the court shall accept the master's findings of fact unless clearly erroneous.
The term "clearly erroneous" has been defined by the Supreme Court of the United States in United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948) as follows:
A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.
After a review of the comprehensive findings of the Magistrate, after review of the pleadings in this matter, and after hearing in open court, this Court does determine that the Findings of Fact are not clearly erroneous, and are hereby accepted.
Pursuant to the Recommendations of the Master, judgment is hereby entered in favor of the defendant.
The record does not contain a transcript of the hearing before the district court referred to in this order.
On appeal the plaintiffs contend that the reference to the magistrate was improper and therefore "null and void." The two orders of reference and the statement concerning reference in the final order of the district court are not consistent. The first order of reference stated that it was made pursuant to 28 U.S.C. § 636(b)(1)(B) "to conduct hearings, including evidentiary hearings, and (for) the submission of proposed findings of fact and recommendations for disposition." Section 636(b)(1)(A) permits referral to a magistrate to hear and determine pretrial matters. Section 636(b)(1)(B) permits referral to a magistrate to conduct hearings and to submit to the court proposed findings of fact and recommendations for the disposition of certain dispositive motions, applications for post trial relief in criminal cases and prisoner petitions challenging conditions of confinement. There is no provision in § 636(b)(1) for referring a case to a magistrate for trial on the merits. Thus the reference was improper since the purpose of the referral was a trial and the provision of the Magistrates Act relied upon by the court does not permit a reference for this purpose.
The second order of reference again erroneously referred to § 636(b)(1)(B) in appointing the magistrate a special master in the action. Section 636(b)(2) is the provision which authorizes the designation of a magistrate to serve as a special master. However, in this order the district court also cited § 1.5(1) of its local General Order IX, which provides:
1.5 SPECIAL MASTER REFERENCES AND TRIALS BY CONSENT
(1) A magistrate may serve as a special master subject to the procedures and limitations of 28 U.S.C. § 636(b)(2) and rule 53 of the Federal Rules of Civil Procedure.
In the final order accepting the recommendations of the magistrate the district court corrected its erroneous citation of § 636(b)(1)(B) and stated that the reference to the magistrate as a special master was made pursuant to § 636(b) (2), the provision which does authorize such a reference and designation.
Considering the three orders together we believe the intention of the district court was to refer the case to the magistrate, as a special master, for the purpose of conducting a trial, making findings and submitting a proposed disposition of the case to the district court. This intent should have been apparent to the parties after entry of the second order of reference despite the erroneous citation of § 636(b)(1)(B). There was no showing of an exceptional condition as required by Rule 53(b), Fed.R.Civ.P., 2 for reference of a non-jury case to a special master. This requirement may be disregarded when a magistrate is designated pursuant to § 636(b)(2) to serve as a special master "upon consent of the parties." In this case the district court neither sought nor obtained the explicit consent of the parties.
The plaintiffs argue that since there was no finding of an exceptional condition and the...
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...application of the Ex Post Facto Clause to a context where it clearly should have been controlling. In accordance with Hill v. Duriron Co., 656 F.2d 1208 (6th Cir.1981) and 28 U.S.C. § 636(b)(1)(B) & (C), this Court has made a de novo determination of the Magistrate's findings. For the reas......
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