UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-31299
SIERRA CLUB; and
LOUISIANA ENVIRONMENTAL ACTION NETWORK, INC.,
Plaintiffs-Appellees,
v.
CAROL M. BROWNER, ADMINISTRATOR,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY;
GERALD CLIFFORD, REGIONAL ADMINISTRATOR,
Defendants-Appellants.
Appeal from the United States District Court
for the Eastern District of Louisiana
July 9, 2001
Before GARWOOD, PARKER, and DENNIS, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
This appeal involves the district court’s references of motions for summary judgment and
other liability and remedy issues concerning Appellants’ mandatory duty under section 303(d) of the
Clean Water Act, 33 U.S.C. § 1313(d), to a special master pursuant to FED. R. CIV. P. 53(b).
Because we conclude that the references were improper, we VACATE the orders of reference, the
orders adopting the master’s recommendations, and the final judgment, and REMAND this action
for further proceedings by the district court de novo.
I.
Appellees are two environmental organizations who brought this action to challenge the State
of Louisiana’s and Appellants’ failure to comply with section 303(d) of the Clean Water Act, 33
U.S.C. § 1313(d). Appellees’ complaint sought relief for the State’s failure to identify, establish, and
submit to Appellants total maximum daily loads (“TMDLs”) of pollutants for Louisiana’s polluted
waters, and for Appellants’ failure to exercise its mandatory duty under section 303(d) to identify and
establish such TMDLs in light of the State’s protracted inaction. Notwithstanding the Act’s strict
deadlines fo r such identification and establishment, which were due in 1979, the State failed to
identify, establish, or submit a single TMDL until 1992 although it received federal funding
specifically earmarked for TMDL implementation. When the State did manage to finally submit a
TMDL, Appellants rarely complied with the Act by either approving or disapproving the submission
beyond the thirty-day deadline imposed by the Act. Appellees sought judicial enforcement of the
Act’s requirements by seeking an order and judgment against Appellants to exercise its mandatory
duty under the Act to identify and est ablish TMDLs whenever the State failed to do so, and to
establish a reasonable schedule by which TMDLs would be implemented.
The parties filed cross-motions for summary judgment relating to liability and remedy issues.
At a pretrial conference Appellants suggested, and the court agreed, that an appointment of a special
master pursuant to Rule 53(b) would be appropriate. The district court cited its congested docket
and unfamiliarity with the issues presented as necessitating the reference. Appellees objected to the
2
reference primarily based on the added delay and expense, but the court overruled the objection and
directed the parties to submit names of candidates for the reference. Shortly thereafter, Appellants
retracted their suggestion for a Rule 53(b) reference to a special master, objected to such reference,
and moved for a reference to a magistrate under Rule 72. That objection was also overruled, and the
district court eventually referenced the motions to a special master for report and recommendation,
stating that under Rule 53(b), an exceptional condition required the reference because “[t]he case has
been pending for two years, the filings are voluminous and contain highly technical documents and
declarations, and the issues concern compliance with state and federal regulations.” R.E. 5 at 30.
The special master initially conducted two hearings and issued a report to the district court
recommending that Appellants’ motion be denied and Appellees’ motion be granted and denied in
part. The district court adopted the report as the opinion of the court, granted Appellees summary
judgment with respect to one claim, ordered Appellants to file the administrative record and a
schedule for establishing and implementing TMDLs, and re-referenced, without specifying any reason,
the action to the special master for a hearing to review the record and schedule, and for report and
recommendation. The special master held a hearing to review Appellants’ administrative record and
a one-week trial on the reasonableness of Appellants’ schedule. As ordered, the special master issued
a second report recommending summary judgment for Appellees for Appellants’ actions in removing
certain waters and pollutants from impaired water lists, rejection of Appellants’ 12-year schedule for
establishing and implementing TMDLs, and setting a 10-year schedule for such establishment and
implementation. The district court entered an o rder and judgment essentially adopting the special
master’s second recommendation.
Appellants timely appealed the judgment and challenge, inter alia, the district court’s
3
reference of the motions and liability issues to the special master. Because the question of whether
the references were proper is dispositive of this appeal, we limit our discussion to the references and
reserve discussion of the State’s and Appellants’ failure to comply with the Act for another day.
II.
We review references to a special master pursuant to Rule 53 for abuse of discretion. See La
Buy v. Howe Leather Co., 352 U.S. 253, 256 (1957). Rule 53(b) provides in relevant part:
A reference to a master shall be the exception and not the rule. 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.
“The use of masters is ‘to aid judges in the performance of specific judicial duties, as they may arise
in the progress of a cause, and not to displace the court.” La Buy, 352 U.S. at 256 (citation omitted);
Piper v. Hauck, 532 F.2d 1016, 1019 (5th Cir. 1976). In La Buy, the Supreme Court expressly held
that a congested docket, the complexity of issues, and the extensive amount of time required for a
trial do not, either individually or as a whole, constitute an exceptional condition justifying a Rule 53
reference to a special master in a non-jury antitrust action. See La Buy, 352 U.S. at 258-59. We
applied La Buy in Piper v. Hauck, 532 F.2d 1016, 1019 (5th Cir. 1976), in which we held that a
crowded docket and the plaintiff’s filing of sixteen different lawsuits in the same court did not
constitute an exceptional condition warranting a reference of the trial to a magistrate judge under
Rule 53.
Under this authority, the district court abused its discretion by referring the motions to the
special master. In the initial order of reference, the district court stated that an “exceptional
condition” existed because “[t]he case has been pending for two years, the filings are voluminous and
4
contain highly technical documents and declarations, and the issues concern compliance with state
and federal regulations.” R.E. 5 at 30. At the pretrial conference the court also stated that the
court’s congested docket and inexperience with the subject matter of the action required referring the
motions to a special master. Moreover, the second order of reference did not state any reason or
condition at all warranting the reference. The orders adopting the master’s reports do not suggest
that the district court performed a de novo review of the reports.
There is no exceptional condition justifying the references. The fact that a case has been
pending for two years is not so exceptional as to require the reference of dispositive matters such as
summary judgment motions to a special master. The same applies to voluminous filings containing
highly technical documents and declarations, which is pretty much the norm for modern federal
litigation. Cf. La Buy, 352 U.S. at 259; United States v. Microsoft Corp, 147 F.3d 935, 954-55 (D.C.
Cir. 1998); Prudential Ins. Co. of Am. v. United States Gypsum Co., 991 F.2d 1080, 1087 (3d Cir.
1993). Similarly, a significant number of cases in federal courts concern compliance with state and
federal regulations. La Buy and Piper forbid references due to congested dockets, and the court’s
unfamiliarity with the subject matter can hardly excuse the court’s obligation to carry out its judicial
function. See Madrigal v. Cello, 799 F.2d 814, 818 n.1 (2d Cir. 1986) (“[The judge] is obligated,
whenever faced with unfamiliar factual or legal issues . . . to educate himself in those fields with the
aid of counsel, colleagues on the bench, law clerks, and published texts and decisions.”). If the
district court’s reasons were sufficient to constitute an exceptional condition under Rule 53, they
“would make references the rule rather than the exception.” La Buy, 352 U.S. at 259.
We disagree with Appellees’ argument that Appellants are not entitled to a reversal absent
a showing that the references prejudiced Appellants. Appellees cite Kent v. Walter E. Heller & Co.,
5
349 F.2d 480, 481 (5th Cir. 1965), which upheld the district court’s reference of a motion for
judgment on the pleadings to a referee in bankruptcy for report and recommendation. In reaching
that conclusion, Kent noted the lack of any objection to such reference, and stated that “even if the
reference had been improvident the appellant would not be entitled to a reversal in the absence of a
showing of prejudice.” In discussing prejudice, Kent relied on Johnson Fare Box Co. v. National
Rejectors, Inc., 269 F.2d 348, 351 (8th Cir. 1959), in which the Eight Circuit stated that “[e]ven if
the order of reference was improvidently or improperly granted, that alone would not entitle the
plaintiff to a reversal or affect the review of this case.” Without discussing what would warrant
reversal, the Eight Circuit stated that “[i]f, however, it was error to refer the case, the costs of
reference should be borne by the [party that] induced the Court to make the order.”
We believe that Kent’s discussion of prejudice is dicta, and that reversal is required in this
action. Cf. Stauble, 977 F.2d at 697 n.11 (stating that Johnson Fare Box’s discussion of prejudice
is dicta). In La Buy, which was decided before Kent, the Supreme Court did not identify, discuss,
or impose a prejudice requirement for vacating an improper reference under Rule 53. In Piper we
concluded, without discussing prejudice, that we had no choice but to vacate the improper order of
reference and remand for a new trial de novo. Piper, 532 F.2d at 1019. We need not and do not
decide whether reversal is always required for an improper Rule 53 reference, or whether a lack of
prejudice by the objecting party or some evidence of the district court’s de novo review of the special
master’s report can ever “cure”such reference to preclude reversal, except to say that reversal is
required here. We reach this conclusion because there is no exceptional condition justifying the
references, and there are no findings or conclusions by the district court revealing a de novo review
of the reports even though the parties filed numerous objections to the reports. Absent such findings
6
and conclusions by the district court, we are unable to perform a meaningful review of its judgment,
especially when the appeal involves complex factual and legal issues. See Stauble, 977 F.2d at 698
(“[E]ven the most searching review of the record by an appellate court would not be a satisfactory
substitute for a t rial conducted in accordance with Article III.”). Moreover, “‘since the master’s
findings must be accepted unless they are clearly erroneous, [the reference of a nonjury case] involves
the danger that the master, not the court, will in fact decide the case.’” In re United States, 816 F.2d
1083, 1091 (6th Cir. 1987) (quoting 9A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 2605 at 670 (2d 1995)) (alteration in original). As we noted in Piper,
“[w]e cannot simply assume that a retrial of this case will necessarily lead to identical results on any
of the numerous issues which the parties contested before the [master].” Piper, 532 F.2d at 1019 n.6.
Therefore, we must vacate and remand this action to the district court to review and decide the
motions de novo.
We also disagree with Appellees’ argument that reversal is improper because Appellants
should have sought an interlocutory appeal or a writ of mandamus in this court after the order of
reference was entered. It is true that an aggrieved party may seek review of an order of reference by
an interlocutory appeal, see 28 U.S.C. § 1292(b), or a writ of mandamus, see La Buy, 352 U.S. at
254-55, but the party is not required to do so because such order, as in this action, may be reviewed
on appeal. See Piper, 532 F.2d at 1018. We cannot penalize Appellants for seeking review of the
orders by a perfectly legitimate procedure.
Finally, we cannot accept Appellees’ contention that cases evaluating massive, long-term
government programs are particularly suited for the appointment of a special master. None of the
decisions Appellees cite concerned the propriety of the reference to the special master, as in this
7
action, and most of those decisions concerned the evaluation and implementation of particular
remedies, not the determination of basic liability issues. See Washington v. Tensas Parish Sch. Bd.,
819 F.2d 609 (5th Cir. 1987) (school board election reapportionment plan); Ruiz v. Estelle, 679 F.2d
1115, 1159-62 (5th Cir.) (supervision of judicial consent decree), aff’d in part and vacated in part,
688 F.2d 266 (5th Cir. 1982); Gary W. v. Louisiana, 601 F.2d 240, 244 (5th Cir. 1979) (compliance
with court order). It may be plausible to refer matters concerning remedies once liability is
determined, but whether such references are valid will always turn on their compliance with Rule
53(b). We simply cannot hold that cases involving massive, long-term government programs
constitute an exceptional condition under Rule 53(b). Even if we agree with Appellees that such
cases may be particularly suited for reference to a special master, it does not follow that a district
court may abdicate its judicial function by referencing the basic issues of liability to “a temporary
substitute appointed on an ad hoc basis and ordinarily not experienced in judicial work.” La Buy, 352
U.S. at 259; see also Stauble v. Warrob, Inc., 977 F.2d 690, 694 (1st Cir. 1993) (“[W]here a district
judge does not hear and determine the main course, i.e., the meat-and-potatoes issues of liability,
there is an abdication of the judicial function depriving the parties of a trial before the court on the
basic issues involved in the litigation.”).
While we recognize that our decision will add to the delay and expense already suffered by
Appellees and the citizens of Louisiana, we simply have no choice but to vacate the orders of
reference, the orders adopting the special master’s reports, and the final judgment, and remand this
action to the district court for further proceedings de novo. See Piper, 532 F.2d at 1018.
Vacated and remanded.
8