Sierra Club v. Clifford

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 99-31299

SIERRA CLUB; and
LOUISIANA ENVIRONMENTAL ACTION NETWORK, INC.,

Plaintiffs-Appellees,

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.

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

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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

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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

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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.,

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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

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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

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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.