Morse v. Marsh

• Decision Date: 13 March 1987
• Docket Number: No. 85 C 1118.,85 C 1118.
• Citation: 656 F. Supp. 939
• Parties: Roxanne MORSE, Plaintiff, v. John O. MARSH, Jr., in his capacity as Secretary of the United States Department of the Army, Defendant.
• Court: U.S. District Court — Northern District of Illinois

656 F. Supp. 939

Roxanne MORSE, Plaintiff, v. John O. MARSH, Jr., in his capacity as Secretary of the United States Department of the Army, Defendant.

No. 85 C 1118.

United States District Court, N.D. Illinois, E.D.

March 13, 1987.

George F. Galland, Jr., Laura E. Tilly, Davis, Barnhill & Galland, P.C., Chicago, Ill., for plaintiff.

Gail C. Ginsberg, Asst. U.S. Atty., Chicago, Ill., for defendant.

MEMORANDUM AND ORDER

MORAN, District Judge.

Plaintiff Roxanne Morse brought this action against the United States Department of the Army under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq, after the Army rejected her application for a permanent position in its Family Advocacy Program at Fort Sheridan. The case was originally assigned to Judge Grady, who recommended to the Executive Committee that it be referred to a magistrate for trial. Plaintiff objected to the reference and the defendant also stated a preference for having the case tried by the court, although he has since changed his mind. After the Executive Committee referred the case to a magistrate, plaintiff filed this motion to vacate the reference. The motion is denied for the following reasons.

FACTS

This action was assigned to Judge Grady when Morse filed her original complaint on February 6, 1985. A discovery conference was held on May 20, 1985. Discovery was completed on November 30, 1985 and Judge Grady directed the parties to be ready for trial on reasonable notice any time after December 15. A pretrial conference was held on April 15, 1986. On April 25 Judge Grady entered an order transferring the case to the Executive Committee. The order stated that

the above-captioned cause is currently pending on my calendar. I recommend to the Executive Committee that this case be referred to a magistrate of this court to serve as a Special Master subject to the provisions of 28 U.S.C. § 636(b)(2) and Rule 53, F.R.C.P..... Because we cannot schedule this case for trial within 120 days after plaintiff filed her Title VII claim (120 days have already passed and due to our congested trial calendar we do not anticipate a date to open soon), the magistrate should try this case pursuant to 42 U.S.C. § 2000e-5(f)(5).

The Executive Committee then referred the case to Magistrate Balog.

Morse originally filed a motion to vacate the reference before the Executive Committee. The Executive Committee denied her motion, ruling that it should have been brought before the judge to whom the case was assigned. Morse then filed this motion before Judge Grady. The entire case, including this motion, was transferred here when Judge Grady became Chief Judge of the District Court for the Northern District of Illinois.

DISCUSSION

In moving to vacate the order referring this case to a magistrate, Morse seems to assume that the magistrate will be conducting a full-fledged trial and ordering the entry of final judgment. This assumption is incorrect. Although the order does state that the magistrate is to "try" the case, it is readily apparent that the magistrate is to act as a master, not as a judge.

I. The Appointment of Masters in Title VII Cases

Section 706(f)(5) of the Civil Rights Act of 1964 expressly authorizes the judge assigned to a Title VII case to appoint a master if the case cannot be scheduled for trial within 120 days after issue is joined:

It shall be the duty of the judge designated pursuant to this subsection to assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited. If such judge has not scheduled the case for trial within 120 days after issue has been joined, that judge may appoint a master pursuant to Rule 53 of the Federal Rules of Civil Procedure.

42 U.S.C. § 2000e-5(f)(5). The court's authority to appoint masters was much broader in the version of Title VII reported out of the House Committee on the Judiciary. See H.R. 7152, 88th Cong., 1st Sess., § 707(f) (1963) ("In any case in which the pleadings present issues of fact the court may appoint a master and the order of reference may require the master to submit with his report a recommended order."), reprinted in EEOC, Legislative History of Titles VII and XI of the Civil Rights Act of 1964, 2001, 2012 (1968). However, that section was deliberately omitted from the version of the bill passed by the Senate. See 110 Cong.Rec. 8192, 8194 (April 16, 1964) (statement of Sen. Dirksen) ("Greater confidence in the outcome of the trial and more respect for the decision of the court should reasonably be expected if masters are eliminated"), reprinted in Legislative History at 3265. The House approved the changes made by the Senate and Title VII became law with no special provisions for the appointment of masters, although masters could still be appointed under Fed.R.Civ.P. 53.

Section 706(f)(5) was added to Title VII in 1972 with little debate. The proponents of the amendment that became § 706(f)(5) explained that

the normal rule as to the ability of the court to appoint a master if it wishes under Rule 53 is quite stringent — the case must be truly exceptional to qualify. All this amendment does is relax that stringency in the area of Title VII cases where justice delayed is very often justice denied.

* * * * * *

... Rather than to strike what trial judges are supposed to do, we ought to leave it discretionary with judges because of the different situations that might arise in different jurisdictions.

... The amendment language now is simply designed to remind the judge that Congress intends that employment discrimination cases should be expedited so if the judge thinks it wise he can turn the case over to a master. This language simply highlights congressional concern without trying to mandate what the judge does.

118 Cong.Rec. 4923, 4924 (Feb. 22, 1972) (statements of Sen Javits and Sen. Dominick), reprinted in Bureau of National Affairs, Inc., The Equal Employment Opportunity Act of 1972 346 (1973). Thus a master may be appointed in Title VII cases without the showing of exceptional circumstances ordinarily required by Fed.R.Civ.P. 53(b). See, e.g., White v. General Services Administration, 652 F.2d 913, 915-16 (9th Cir.1981).¹

Morse argues that § 706(f)(5) should not be construed to authorize reference to a magistrate when neither side wants the reference. The court disagrees. The statute calls for the judge "to assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited." 42 U.S.C. § 2000e-5(f)(5). If the case cannot be scheduled for trial within 120 days after issue has been joined, the judge has the discretion to appoint a master. Id. Nothing in Title VII conditions this authority on the consent of the parties. See, e.g., Brown v. Wesley's Quaker Maid, Inc., 771 F.2d 952, 954-55 (6th Cir.1985) (holding that magistrate's findings following a non-consensual reference of a Title VII case are reviewed on a clearly erroneous standard), cert. denied, ___ U.S. ___, 107 S.Ct. 116, 93 L.Ed.2d 63 (1986); Spaulding v. University of Washington, 676 F.2d 1232, 1235 (9th Cir.1982) ("Because Title VII cases ... can be referred to a magistrate without the consent of the parties ... to impose the cost of the transcript on Title VII litigants as a condition of obtaining review" would be improper).

Morse correctly states that Brown and Spaulding did not squarely address the propriety of a non-consensual reference of a Title VII case to a magistrate. However, Title VII expressly provides for a master to be appointed under Fed.R.Civ.P. 53. Rule 53 does not require the parties to consent to such an appointment and the court may act on its own motion. See, e.g., Brown, 771 F.2d at 954; 9 C. Wright & A. Miller, Federal Practice & Procedure: Civil § 2603, at 781 & n. 26 (1971). Rule 53(a) simply states that "the court in which any action is pending may appoint a special master therein." Moreover, Rule 53(b) was amended in 1983 to relax the standard for appointing a master when both parties consent to the appointment. If the consent of both parties was always required before a master could be appointed, the amendment would have rendered the rest of Rule 53(b) meaningless. Nothing in the language, legislative history or policy of Title VII indicates that Congress intended a special consent requirement to be read into Rule 53 for Title VII cases. That a United States magistrate is to act as the master does not affect this analysis.

II. The Designation of Magistrates as Masters

Morse next argues that even if § 706(f)(5) of Title VII allows this case to be referred to a magistrate without the parties' consent, that provision has been modified by the Federal Magistrate Act. 28 U.S.C. § 631 et seq. Under § 636(c)(1) the parties may consent to trial by a magistrate who essentially assumes the role of the district judge up to and including the entry of final judgment in the case. The judgment is reviewable by the United States Court of Appeals as if it were a judgment of a district court, 28 U.S.C. § 636(c)(3), although the parties may agree to an appeal to a district court, 28 U.S.C. § 636(c)(4). See Geras v. Lafayette Display Fixtures, 742 F.2d 1037 (7th Cir.1984). In the Northern District of Illinois this type of reference is implemented by N.D.Ill. General Rule 1.72.

Morse correctly states that both parties must consent before a magistrate can try a civil case under 28 U.S.C. § 636(c). The consent requirement would apply with equal force to Title VII cases referred to a magistrate for trial under § 636(c), but as the Army points out, § 636(c) is not the only provision governing references to magistrates. See generally Brown v. Wesley's Quaker Maid, Inc., 771 F.2d 952 (6th Cir.1985). In particular, § 636(b)(2) provides that a magistrate may serve as a special master under Fed.R. Civ.P. 53. In this district the authority to appoint magistrates as masters in Title VII cases is implemented...