Yascavage v. Weinberger

• Decision Date: 15 May 1974
• Docket Number: Civ. No. 72-232.
• Citation: 379 F. Supp. 1297
• Parties: Victoria YASCAVAGE, obo Nicholas Yascavage, Plaintiff, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

379 F. Supp. 1297

Victoria YASCAVAGE, obo Nicholas Yascavage, Plaintiff, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Defendant.

Civ. No. 72-232.

United States District Court, M. D. Pennsylvania.

May 15, 1974.

Peter Krehel, Sunbury, Pa., for plaintiff.

S. John Cottone, U. S. Atty., James W. Walker, Sal Cognetti, Jr., Asst. U. S. Attys., Scranton, Pa., for defendant.

SHERIDAN, Chief Judge.

This is an action to review the final decision of the Secretary of Health, Education and Welfare denying the plaintiff's claim as a widow of a miner for "black lung" benefits pursuant to §§ 411(a) and 412(a)(2) of the Federal Coal Mine Health and Safety Act of 1969, as amended. 30 U.S.C.A. §§ 921(a) and 922(a)(2). The Secretary filed a motion for summary judgment and the court entered an order referring the action to the full-time magistrate for this district for report and recommendations on the Secretary's motion. The Secretary then filed a motion requesting the court to vacate the order referring the action to the magistrate, and this motion to vacate is now before the court.

The grounds for defendant's motion to vacate are that (1) the referral of this action to the magistrate is beyond the jurisdiction of the court because such referral violates Rule 53(b) of the Federal Rules of Civil Procedure,¹ and exceeds the authority granted by the Federal Magistrates Act, 28 U.S.C.A. §§ 631-639; (2) the referral may violate the Constitution of the United States; and (3) the referral interjects an extra level of review into the judicial review process, thereby placing an added burden upon the litigants.

In his brief, defendant "submits" that the duties assigned to the magistrate in this case are those customarily assigned to a special master pursuant to Rule 53. In advancing this contention, defendant relies heavily on Ingram v. Richardson, 6 Cir. 1972, 471 F.2d 1268. With all due respect, this court disagrees with the decision in Ingram.

Ingram was a Social Security case referred to a United States Magistrate who, in a report and recommended decision, apparently made findings of fact and conclusions of law, and recommended that summary judgment be entered in favor of defendant. The district court denied objections to the report and "adopted the Magistrate's findings of fact and conclusions of law, and entered summary judgment in favor of the defendant." The court of appeals reversed. The court of appeals viewed the reference of the case to the magistrate as a reference under 28 U.S.C.A. § 636(b)(1), which provides that the additional duties a magistrate may perform include service as a master in appropriate civil actions, pursuant to the Federal Rules of Civil Procedure. The court of appeals held that references to a master under Rule 53(b), Fed.R.Civ.P., are to be the exception and not the rule, and finding no exceptional circumstances, held that the reference of Social Security cases to the magistrate as of course was error.²

The holding that the case was, and apparently could only be, referred to the magistrate pursuant to § 636(b)(1), appears to be an unduly restrictive interpretation of § 636. Section 636(b) provides that a magistrate may be assigned such additional duties "as are not inconsistent with the Constitution and the laws of the United States . . . which may include, but are not restricted to" certain enumerated duties in three categories, including service as a special master:

"§ 636. Jurisdiction, powers, and temporary assignment.

. . . . . .

"(b) Any district court of the United States, by the concurrence of a majority of all the judges of such district court, may establish rules pursuant to which any full-time United States magistrate, . . . may be assigned within the territorial jurisdiction of such court such additional duties as are not inconsistent with the Constitution and laws of the United States. The additional duties authorized by rule may include, but are not restricted to —

"(1) service as a special master in an appropriate civil action, pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts;

"(2) assistance to a district judge in the conduct of pretrial or discovery proceedings in civil or criminal actions; and

"(3) preliminary review of applications for posttrial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing." (Emphasis supplied.)

Service as a master may involve all incidents of a non-jury trial, including the reception of documentary evidence and the taking of testimony where credibility based on demeanor of the witness may be important. The master may also rule on the admissibility of evidence and make findings of fact and conclusions of law:

"RULE 53. Masters.

. . . . . .

"(c) Powers. . . . Subject to the specifications and limitations stated in the order, the master has and shall exercise the power to regulate all proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may require the production before him of evidence upon all matters embraced in the reference, including the production of all books, papers, vouchers, documents, and writings applicable thereto. He may rule upon the admissibility of evidence unless otherwise directed by the order of reference and has the authority to put witnesses on oath and may himself examine them and may call the parties to the action and examine them upon oath. When a party so requests, the master shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as provided in Rule 43(c) for a court sitting without a jury.

. . . . . .

"(e) Report.

"(1) Contents and Filing. The master shall prepare a report upon the matters submitted to him by the order of reference and, if required to make findings of fact and conclusions of law, he shall set them forth in the report. . . .

"(2) In Non-Jury Actions. In an action to be tried without a jury the court shall accept the master's findings of fact unless clearly erroneous. . . ."

In a Social Security case, however, there is no trial, no evidence is received and no witnesses are heard; rather, the matter is decided on a record developed at the administrative level. The review of a Social Security action involves only the questions of law as to whether the Secretary's decision is supported by substantial evidence, and whether proper legal standards were applied. McGaha v. Ribicoff, D.Del.1966, 262 F.Supp. 161.³ Whether the case is considered initially by the court or the magistrate, disagreement with the Secretary's findings is not permitted when they are supported by substantial evidence.⁴ The court, in reviewing the magistrate's report, has before it the same record that the magistrate had before him — a record developed by the Secretary.

That the reference is pursuant to the broader "additional duties" language of § 636(b) and not pursuant to the "non all-inclusive" enumerated categories, particularly § 636(b)(1), appears to be the interpretation of the Administrative Office of the United States Courts (Administrative Office). The jurisdictional checklist of additional duties supplied by the Administrative Office as a guide in developing local rules specifies many duties not specifically enumerated in § 636 which a magistrate may perform. Apart from service as a special master, the checklist provides that "other duties" may include the review and a report and recommendation on cases which come before the court on a "developed administrative record," including Social Security cases.

The Government, in line with its "submission" that a Social Security action is referred to the magistrate under Rule 53(b), argues that the necessity of complying with Rule 53(b) was recognized by Congress when it considered the Federal Magistrates Act, and sets forth at length excerpts from Senate Report No. 371 made by the Committee on the Judiciary (90th Cong., 1st Sess., "The Federal Magistrates Act," report on S. 945, June 28, 1967). These excerpts deal with the Committee's concern that Rule 53(b) be complied with when a case is in fact referred to a magistrate as a special master. There is no indication in the report, however, that it was considered that all matters referred to a magistrate are referrals as a master under Rule 53(b), and the language of § 636(b), of course, would not justify any such construction of the Act.

The United States Court of Appeals for the Third Circuit and at least one other circuit also have apparently taken a broader view of the "other duties" provision of § 636(b). In at least two Social Security cases in this district, the district court's orders adopting the magistrate's report and recommendations have been upheld by the Third Circuit. In Davis v. Weinberger, Civil Action No. 71-466, M.D.Pa., the magistrate submitted a report and recommendation that the Secretary's motion for summary judgment be granted. This report included a discussion of plaintiff's argument that the Secretary failed to take into account the relevant testimony of the vocational expert. Judge Nealon entered an order in which he approved and adopted the report and entered judgment for the Secretary. On June 7, 1973, the Court of Appeals for the Third Circuit (Chief Judge Seitz, and Judges Staley and Hunter) entered a judgment order (listed in 480 F.2d 917) affirming the judgment of Judge Nealon:

"After considering plaintiff's contention that the decision of the Secretary, as affirmed by the district court, was not supported by the weight of the evidence, and failed to take into account the relevant testimony of the vocational specialist based upon a hypothetical, and finding such

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