(dissenting).
T ,, , . , „ , Insofar as the pretrial features of the cage are concerned-including discovery and the taking. of depositions here and abroad with rulingg incident to ^ conduct of thoge proceedings_nc> modification of the reference of the case to £be master is now pressed by appellants, But the reference also includss «the de. termination and findings of all issues of faot and law involved in gaid action>„ g0 ^ba-(- the master would actually try and initially decide the case. 0ur ques_ tion ig whether, on appellants’ motion of 0ctober 1; 1958) the reference ghould be modified g0 that the master’s duties would not indude authority for making determinations and findings on all issues of fact and law. Nothing heretofore done by the master would be set aside by the modification requested. Nor would additional pretrial matters which lie in the future be removed from the master’s jurisdiction. It is the actual trial itself, still to be held, that would be restored to the responsibility of the court.
„ ,, ... At the time of the original reference ,? , the defendants who were the predecessors „ ,. , „ , ,, ,, ox the present appellants sought the ref- . ., ^ , 6 . erence m its broad scope. Appellees then opposed it. Thus, the positions of the parties have changed. Appellants now seek modification; appellees now defend the reference in its original scope, I attach little importance to this reversal of positions, especially as the modification now sought would not undo the past, or indeed alter the future course of the case except as to the basic determinations and findings. These I think should be made initially by the court, not by a master whose findings of fact would bind the court unless clearly erroneous. Rule 53(e) (2), Fed.R.Civ.P.
*273I am not able to reconcile the contrary view with the decision of the Supreme Court in La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290, rendered subsequent to Chief Judge Laws’ order of reference. In La Buy the Court upheld the Court of Appeals in using the extraordinary writ of mandamus to require a District Judge to vacate orders of reference in an antitiust action. The references covered the taking of evidence, trial of the case, and the preparation of findings of fact and conelusions of law. In holding that the District Court had abused the discretion available to it under Rule 53(b), the Court said the references
“amounted to little less than an abdication of the judicial function depriving the parties of a trial before the court on the basic issues involved in the litigation.”1
Moreover, no exceptional circumstance within the meaning of Rule 53(b) was found in La Buy to reside in court congestión in itself, as to which the Court said,
“if such were the test, present congestión would make references the rule rather than the exception.”
352 U.S. at page 259, 77 S.Ct. at page 315. Nor did the fact that the case had “unusual complexity of issues of both fact and law,” or the circumstance that the trial would be prolonged, create “some exceptional condition” within the meaning of the reference Rule. As to those characteristics of the case the Court said:
«But most litigation in the antitrust field is complex. It does not follow that antitrust litigants are not entitled to a trial before a court, Qn contrary, we believe that this ¡s an impelling reason for trial before a reguiar, experienced trial judge rather than before a temporary substitute appointed on an ad &oc basis and ordinarily not experienced in judidal work- Nor does petitioner’s claim of the great length of time these trials will require offer exceptional grounds.2
When I apply these principles to our cage j am unable to make a reasoned distinction in favor of the broad scope of the present reference. Indeed, this case seems more clearly than La Buy one for trial by and in a federal court, rather than by a master, especially under the limitations a trial by a master would imP°se upon the final conclusions of the court as to the facts, by reason of Rule 53(e) (2).
The case is one of large importance, with international as well as domestic ramifications.3 The sound solution would seem to be to permit the master *274to conclude the pretrial proceedings, with such court supervision as from time to time may be necessary, and then for the trial itself to come on before the court. While the case has exceptional features, and the aid of the master I think is properly utilized, there is no such exceptional condition affecting the basic issues to be determined, chiefly that of enemy taint, as justifies the court in referring those issues to the master.
The clear teaching of La Buy, as it seems to me, is that “some exceptional condition,” as that restrictive term is , , , , . used m Rule 53, is not met by a showing ,, . ,, . ’ ,. . ,, that the case is an exception to the gen- , „ .... eral run of litigation m that it is com- , , ... , ; , plex and will take a great deal of time4 f,T . , Nor, as we have seen, does court conges- ’ ,. . tion m itself create the exceptional con- . , „ dition essential to support a reference. . .... .... .... „ A condition which justifies a reference, „ ,, , , , „ either of the whole or a part of a case, , , ,. , . ,, ... must be exceptional m the sense of being peculiarly appropriate for initial disposition by a master, rather than being of a nature inherently and predominantly appropriate for the exercise of a court’s own decisional function. The case of Tendler v. Jaffe, 92 U.S.App.D.C. 2, 203 F.2d 14, certiorari denied 346 U.S. 817, 74 S.Ct. 29, 98 L.Ed. 344, is perhaps illustrative of a proper reference, though that case too was decided before La Buy. Rule 53 itself is also suggestive in its mention of accounting as an appropriate matter for reference. One need not attempt in the abstract to enumerate illustrations, for the problem before us is a concrete one. As to that problem, I do not find any exceptional condition which justifies turning to a master for determinations or findings with respect to the basic issues in the case. Those are for decision by the court, free of the “clearly erroneous” restriction of Rule 53(e) (2). In the end this would be the most satisfactory manner of disposing of this case, and I think it is as well the required manner.
I would reverse and remand.
. 352 U.S. at page 256, 77 S.Ct. at page 313. Mr. Justice Brennan wrote a dis-seating opinion in which Mr. Justice Frankfurter, Mr. Justice Burton and Mr. Justice Harlan joined. The dissent, however, was limited to the use of the extraordmary writ of mandamus at an interlocutory stage of the ease — a question not involved in the instant case, since the interlocutory appeal is before us in appropriate manner under 28 U.S.C. § 1292(b) (19o8).
. 352 U.S. at page 259, 77 S.Ct. at page 315. The Court agreed, however, that the detailed accounting required in the case to determine the damages suffered by each plaintiff might be referred to a master after the court had determined the question of liability of all defendants, “provided the circumstances indicate that the use of the court’s time is not warranted in receiving the proof and making the tabulation.” Ibid.
For the prior judicial history of the litigatíon see Societe Internationale, etc. v. McGrath, 86 U.S.App.D.C. 157, 180 F.2d 406. Kaufman v. Societe Internationale, 88 U.S.App.D.C. 296, 188 F.2d 1017, reversed 343 U.S. 156, 72 S.Ct. 611, 96 L.Ed. 853; Societe Internationale, etc. v. Brownell, 96 U.S.App.D.C. 232, 225 F.2d 532; certiorari denied 350 U.S. 937, 76 S.Ct. 302, 100 L.Ed. 818; Societe Internationale, etc. v. Brownell, 100 U.S. App.D.C. 148, 243 F.2d 254, reversed sub nom. Societe Internationale, etc. v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255; Kaufman v. Brownell, 101 U.S.App.D.C. 147, 247 F.2d 553, certiorari denied 355 U.S. 842, 78 S.Ct. 48, 2 L.Ed.2d 51; Interhandel Case, [1959] I.C.J.Rep. 6.
. A great deal of time is in fact being sby the proper use of the master in the pre-trial proceedings. aved