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USCA1 Opinion

October 13, 1992


UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

_________________________
No. 92-1102
ALFRED STAUBLE, INDIVIDUALLY AND F/U/B WARROB, INC.,
Plaintiff, Appellee,
v.
WARROB, INC., ET AL.,
Defendants, Appellants.
____________________
No. 92-1103
ALFRED STAUBLE, INDIVIDUALLY AND F/U/B
MONTECHUSETTS LEASING CORP.,
Plaintiff, Appellee,
v.
MONTECHUSETTS LEASING CORP., ET AL.,
Defendants, Appellants.
_________________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
___________________
_________________________
Before

Torruella and Selya, Circuit Judges,


______________
and Zobel,* District Judge.
______________
_________________________
Robert S. Potters, with whom
_________________
for appellants.
Peter S. Terris, with whom
_________________
Dodge were on brief, for appellee.
_____

Potters & Brown was


_______________

on brief,

Harvey Nosowitz and


________________

Palmer &
________

_________________________

_________________________
_______________
*Of the District of Massachusetts, sitting by designation.

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
______________

delineate for the first


judge's
master.

power to

refer

This

appeal

requires us

time the outer boundaries of


liability determinations

to

a district

to a

special

After assessing the constraints that Article III of the

Constitution
referring

imposes on

fundamental

adjudication, over

Fed. R.
issues

Civ. P.

of

53, we

liability

conclude that

to

objection, is impermissible.

master

for

Accordingly, we

vacate the judgment below.


I.
I.

THE SETTING
THE SETTING
Plaintiff-appellee

director

of

two closely

Montechusetts Leasing
suits is

scarcely a

reduced,

however,

infighting
parties'

held

Corp.

corporations,
The saga of

short story.1
because

and Byzantine
dealings

Alfred Stauble is a shareholder and

our

Our

burden of exegesis
less

practices

than

and

Stauble's shareholder

focus is

business

Warrob, Inc.

on

on

is

the vicious

that plagued

the

procedural

path

inter
_____

sese
____

the

after

Stauble's relationship

traversed below.
In 1978,
shareholder

and

several

other

curdled, he

brought suit in his

directors

with a

first

soured,

own right and on

means

corporate

limited to,
assets,

opportunities).

breach
and

of fiduciary

duty,

misappropriation

The defendants

included the

then

behalf of the

two corporations, alleging a host of misdeeds (including,


no

fellow

of

but by

diversion of

corporate

shareholder with

____________________

1Although Stauble
brought two suits, the
cases were
consolidated below. Hence, we treat them as if they comprised a
single civil action.
3

whom Stauble
(Richard

had feuded (Warren Katz);

King,

Gottsegen,

and

Plastics,

Robert

Gottsegen,

Lawrence Wald);

Inc., R.L.S.L. Corp.,

five corporate directors


Larry

and

four

Gottsegen,

corporations (Amarin

Montechusetts Chem.

Montechusetts Chem. DISC, Inc.).

Stuart

Corp., and

Neither side requested a

jury

trial.
A
litigation.

magistrate policed

discovery at

the outset

of the

After witnessing two years of acrimonious bickering,

the district court, on its own initiative, referred the case to a


special

master to

parties

objected

manage
to

pretrial

this

discovery.2

reference.

extended over several years.

The

None

of

discovery

When discovery was

the

period

finally closed,

the district court adopted the master's report in toto.


In
sponte,
______
master

mid-1986, the

case

was trial-ready.

Acting

sua
___

the district court referred the case to the same special


for

objected to

trial on

the

the reference.

their motion to vacate the

merits.

defendants immediately

Their objection

was overruled

order of reference was denied.

then sought relief by way of mandamus.


was incomplete, we issued

The

and

They

Concerned that the record

an order directing the court

below to

provide additional information as to why it thought the reference

was

desirable.

other

The district

things, that

the

court obliged.

record was

It

noted, among

voluminous, the

defendants

____________________

2The district court selected as special master the Honorable


Walter H. McLaughlin, Sr., a retired chief judge
of the
Massachusetts Superior Court. Judge McLaughlin's credentials are
conceded by all concerned.
4

numerous,

and the

issues complex; that

the master's

wealth of

experience, gained while overseeing discovery, augured an economy

and efficiency that the court could not aspire to match; that the
history

of the

trial,

occurring

burgeoning;

litigation foretold
at

time

that damages

were

a lengthy

when

the

and disputatious

court's

difficult to

docket

compute and

was

would

involve a full-scale accounting; and that the imbrication between

the facts and the law, and between liability and damages, made it
impractical

to bifurcate the trial

single trier.

After

and militated in

considering the district

favor of a

court's detailed

response, we declined to issue an extraordinary writ.


Trial
Because

began before

Stauble's

defendants'

claims

the
turned

knowledge and intent,

master on
in

good

January 12,
measure

1988.
on

the

witness credibility comprised

an important

aspect of the

trial.

After

approximately thirty-

five trial days and the submission of over four hundred exhibits,
the master resolved the
defendants, and
amount of
on

credibility questions, found against the

recommended that

$756,206.41.

January 8, 1990,

a judgment

The master's final

a year and

be entered

in the

report was submitted

a half after

completion of the

trial.
Almost nine months later,
the report,
in their

accepting the master's findings

entirety.

and awarded fees


plus costs of

the district court confirmed

and recommendations

Thereafter, the court entered final judgment

in excess of

$900,000 to Stauble's

roughly $60,000.

King and

attorneys,

Amarin Plastics

have

made their peace with Stauble.


II.
II.

STANDARD OF REVIEW
STANDARD OF REVIEW
We

believe

that the

delineating the purview


cases

The other defendants appeal.3

to masters

of the district

presents

therefore, appropriate

fundamental

a pure

issue

before us

court's power to

question of

law.

refer

It is,

that we review the exercise of that power

de novo.
__ ____

See, e.g., Dedham Water Co. v. Cumberland Farms Dairy,


___ ____ ________________
_______________________

Inc., ___ F.2d ___, ___ (1st Cir. 1992) [No. 91-2116, slip op. at
____
8]

(confirming that, where the question on appeal is whether the

district committed an error of law, appellate review is plenary);


Brewer v. Madigan, 945 F.2d 449, 452
______
_______

(1st Cir. 1991) (same); New


___

England Legal Found. v. Massachusetts Port Auth., 883 F.2d 157,


_____________________
_________________________
167 (1st Cir. 1989) (same).
The
earlier

standard of review is not altered by reason of our

denial of appellants' petition for writ of mandamus.

It

is, after all, black letter law that mandamus is not a substitute
for direct appeal.
1005 (1st Cir.
Cir. 1981).

See In re Recticel Foam Corp., 859 F.2d 1000,


___ _________________________

1988); United States v. Kane, 646


_____________
____
Unlike

an appeal,

which almost

F.2d 4, 9 (1st

always lies

matter of right, mandamus is an extraordinary remedy.


Chem. Corp.
____________
curiam).

v.

Daiflon, Inc.,
_____________

449

U.S.

33,

as a

See Allied
___ ______

34 (1980)

(per

The writ's "currency is not profligately to be spent."

____________________
3The two appeals parallel the two underlying lawsuits.

See
___
the

supra note 1.
Although the appeals focus primarily on
_____
propriety of the district court's reference of the liability
determination to a master, the defendants assign error in other
respects as well.
Inasmuch as we remand for a new trial before
the district court, see infra, we do not pass upon the additional
___ _____
assignments of error.
6

Boreri
______

v. Fiat S.P.A., 763


____________

ensure that the


required that

F.2d 17,

26 (1st

remedy is used judiciously,


a

mandamus

petitioner

Cir. 1985).

courts have usually

who seeks

to

vacate

interlocutory order "demonstrate that something about


or

its

circumstances,

ineffectual

or

leave

859 F.2d

generally

inappropriate

See
___

make

legitimate

Recticel,
________

remedy

would

at 1005-06.
when

an

interests
Put

To

the order,

end-of-case
unduly

has

appeal

at

another way,

the petitioner

an

risk."

mandamus is
an

adequate

by a direct appeal following the entry of final judgment.

In re Bushkin Assocs., Inc., 864


_____________________________

1989); United States


_____________

v. Sorren,
______

F.2d 241, 243

605 F.2d 1211,

(1st Cir.

1215 (1st

Cir.

1979).
Because
way of

of the

mandamus,

petition

for

preclusive
prosecutes
Shirley, 884

the general

mandamus
effect

his

special standards affecting

when

is

rule
not

the

is

that the

ordinarily
unsuccessful

direct appeal.

F.2d 1130, 1135 (9th

See,
___

e.g.,
____

review by

denial

entitled
petitioner

of
to

any

later

United States
_____________

Cir. 1989); Key

v.

v. Wise, 629

_______

___

F.2d 1049, 1054-55 (5th


(1981).

Cir. 1980), cert. denied, 454


_____ ______

U.S. 1103

While a different rule might obtain in a case where the

denial

of mandamus

merits

of the decision below,

Falls Co., 541


_________

specifically addressed,

petition

reference

did not

a case.

venture to

was erroneous.

and rested

on, the

see, e.g., Skil Corp. v. Millers


___ _____ ___________
_______

F.2d 554, 558 (6th Cir.),

1029 (1976), this is not such


the

____

cert. denied, 429 U.S.


_____ ______

The panel that considered

decide

whether the

Rather, the panel

order of

simply declined to

issue the

writ on

the record before

ample

reason, unrelated

since

the order of reference, even

danger of irreparable
at

243-44

(holding

to the

harm.4
that

it.

merits, for

going that

was

route,

if improvident, presented no

Compare,
_______
an

Moreover, there

order

e.g., Bushkin, 864


____ _______
disqualifying

F.2d

party's

preferred trial counsel can effectively be reviewed following the


entry of final judgment
by way of mandamus).

and, therefore, does not

justify review

It follows that our earlier ruling

is not

entitled to any deferential weight today.


III.
III.

DISCUSSION
DISCUSSION
A.
A.
__
While

United

it is axiomatic that the

States must be exercised

prescribed

in

Art.

III,"

Marathon Pipe Line Co.,


______________________
federal

judges

possess the

by courts having the attributes

Northern Pipeline Constr. Co.


________________________________

458 U.S. 50, 59 (1982)

handling civil

assistants, such as

"judicial power of the

calendars

have

(plurality op.),
long relied

magistrates and special masters, who

distinct attributes

of Article

v.

III status.5

on

do not

This

____________________

4To be sure, appellants were forced to undergo a trial


before they could test the validity of the order of reference on
direct appeal. But, we have consistently "rejected the general
burden-someness of litigation as a basis for assuming mandamus
jurisdiction." In re Justices of the Supreme Court of Puerto
_________________________________________________
Rico, 695 F.2d 17, 20 (1st Cir. 1982); see also Bushkin, 864 F.2d
____
___ ____ _______
at 244 & n.1.

5While Article III courts also review determinations of


adjudicators who do not possess Article III stature, the Supreme
Court has long recognized
distinctions between
judicial
assistants (such as masters) and, for example, administrative
courts. See generally Northern Pipeline, 458 U.S. at 50; Crowell
___ _________ _________________
_______
v. Benson, 285 U.S. 22, 54-64 (1932). Our analysis today deals
______
exclusively with the former category, that is, those who assist
8

reliance

has grown

in direct

federal court docket.


the

criteria set

power,

they

the length

Although these assistants

by Article

may

proportion to

III for

appropriately

do not satisfy

the exercise

perform

of the

wide

of judicial
variety

preparatory

functions,

e.g.,
____

overseeing

discovery

spearheading

pretrial

factual

inquiries

in

controversies.

They may also appropriately

consummatory functions,

e.g.,
____

of

and

complicated

perform a variety of

superintending the

execution

of

consent decrees and the implementation of structural injunctions.

The realm of Fed.


somewhat beyond,
court

R. Civ. P. 53 includes,

these tasks.

to appoint

The rule

special masters

but extends

empowers the

for more

than

district

these limited

purposes, Fed. R. Civ. P. 53(a), but cautions that:


A reference
to a master shall
be the
exception and not the rule. . . .
[I]n
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.
Fed. R.

Civ. P. 53(b).

consent to the
see
___

Peretz
______

v.

Although the parties to a civil case may

appointment of a master
United States,
_____________

111

S.

under any circumstances,


Ct.

2661, 2669

(1991)

("litigants may waive their personal right to have an Article III

judge

preside over a

civil trial"); Goldstein


_________

v. Kelleher, 728
________

F.2d 32, 35 (1st Cir.) (same), cert. denied, 469 U.S. 852 (1984),
_____ ______
____________________

judges in "the performance of specific judicial duties, as they


may arise in the progress of a cause." Ex Parte Peterson, 253
_________ ________
U.S. 300, 312 (1920).
9

Rule 53 anticipates, and


the

conduct of

practice bears out, that in

trials proper,

masters are

complex quantitative issues bearing


Indeed,

the district

"matters of
Fed. R.
the

court may

account, and

respect to

most helpful

where

on damages must be resolved.

appoint a

master

to determine

of difficult computation

of damages,"

Civ. P. 53(b), even over the objection of one or more of

parties,

without

providing

a further

rationale

for

the

appointment.

When the issues referred to a master go beyond hard-tomeasure damages


turbid.

In

or an accounting, however, the

that

justify a reference.

event, only
Id.
___

an

waters grow more

"exceptional condition"

The Supreme Court

can

shed some light on

the meaning of the term in La Buy v. Howes Leather Co., 352 U.S.
_______
_________________
249
case

(1957).

There, the trial court referred a complex antitrust

to a master, over objection, because the court's docket was

"extremely congested"
Id. at 253.
___

The

that neither a

and the

trial promised to

Supreme Court vacated

crowded calendar nor the

issues warranted appointment of a master.


noted that litigants
trial

before a

disputes.
sufficient

Id.
___
to

established by
Id.
___

The wisdom

in complex

court

What is more,
meet

the

the reference,

holding

presence of complicated
Id. at 259.
___

cases are no

than their

be protracted.

The Court

less entitled

counterparts in

more mundane

if congestion or complexity

"exceptional

to

condition"

were

criterion

Rule 53, the exception would jeopardize the rule.


of

La Buy
______

is evident:

complex business disputes such

crowded dockets

as the one we confront

and

today are

10

dismayingly

commonplace; thus,

adjudicators on the incidence


trivialize Article III.

predicating access

to auxiliary

of such circumstances would likely

B.
B.
__
In
complexity
asserts

this
(if an

that

constitutes

case,

oxymoron can

the

the

Stauble

urges

be forgiven)

interweaving
requisite

that

of

more

mere

is involved.

liability

"exceptional

than

and

He

damages

condition."

As

practical matter, Stauble's position has some superficial appeal.


On closer
be

the

scrutiny, however, the perceived


same old

liability

whine

and damages

alliterative

way

in

a different

bottle.

are inextricably

of saying

that a

imbrication seems to

Saying that

intertwined is

given

case suffers

just an

from a

particular strain of complexity.


We need not
last analysis,
condition"

probe this

we cannot constitutionally forge

Constitution
reference of a

Because
master

for, in

prohibits

applicable in
us

from

this case, is

allowing

the

fundamental issue of liability

not possess the

attributes that

the

an "exceptional

test for cases of blended liability and damages.

overriding consideration,

who does

point too deeply

The

that the

nonconsensual

to an adjudicator

Article III

demands.

Rule 53 cannot retreat from what Article III requires, a


cannot

supplant

the

district

judge.

Accord
______

In re
______

Bituminous Coal Operators' Ass'n, Inc., 949 F.2d 1165, 1168 (D.C.
______________________________________
Cir.

1991).

Determining

bottom-line

responsibility of the court itself.

11

legal

questions is

the

See Reilly v. United States,


___ ______
_____________

863

F.2d 149,

Educ.,
_____

158 (1st

Cir.

607 F.2d 737, 747-48

Audio Labs., Inc. v.


__________________

1988); Reed
____

v. Cleveland Bd. of
_________________

(6th Cir. 1979);

Cello, Ltd.,
___________

see also Madrigal


___ ____ ________

799 F.2d

814, 818

(2d Cir.

1986) (that judge did not "understand anything about . . . patent


or

trademark" law and was

"not about to

educate [him]self" was

not

sufficient reason to justify appointment of a master to hear

and

determine

the

district court,
party,"

of

Thus,

"of its own motion,

from "abdicat[ing]

judgment the
any

entire case).

its

III bars

or upon the request

duty to

controversy presented,

its officers."

Article

determine

Kimberly v.
________

Arms, 129
____

of one

by its

and devolve that

own

duty upon

U.S.

512, 524

(1889).
To

be

sure, Article

district judge find every


_____
involved in a case.

III

does

not

require

fact and determine every issue


_____

In respect to preparatory

that

of law

issues (such as,

say, the appropriateness of class certification) or consummatory,


remedy-related

issues

(such

as,

say, the

performance

of

an

accounting), when the reference otherwise comports with Rule 53 a

master

may be appointed to

conclusions of law.

make findings of

fact and recommend

By the same token, a master who is appointed

to oversee pretrial discovery will often investigate the parties'


compliance with the relevant Federal Rules as
factfinding.

As long as

supporting evidence
correct

the district court discerns

sufficient

and is satisfied that the master applied the

legal standards, it may

part of its own

part of his or her

rely on the

determination of liability.

master's report as
See,
___

e.g., Crowell
____ _______

12

v. Benson,
______

285 U.S. 22, 51

103, 105 (8th Cir.


properly

delegate

responsibility
master);6

for

(1932); In re Armco, Inc., 770 F.2d


__________________

1985) (holding that the district


broad

pretrial

conducting

authority,

evidentiary

see also In re Bituminous, 949 F.2d


___ ____ _________________

court could

including

hearings,

to

at 1169 (stating

that a trial court's use of a special master is acceptable at the


remedy-implementation stage of ongoing litigation).
Yet,
collateral

there is

issues,

on

an important
the

one

distinction between
hand,

and

such

fundamental

determinations

of

liability, on

comprise

table

setting and

comprise

the meal itself.

the

table
As the

other hand.

clearing,

The former

while the

Court has observed,

latter

where a

district judge does not hear and determine the main course, i.e.,
____
the

meat-and-potatoes

issues

"abdication of the judicial


trial

before the

litigation."

court

of

there

is

function depriving the parties of

on the

La Buy, 352
______

liability,

basic

U.S. at 256.

issues involved
Because

in

an

the

determining a

fundamental question of liability goes beyond mere assistance and


reaches
III,

the essential

Rule 53 does not

judgments to be

judicial

function identified

allow the responsibility

delegated to

masters (or other

by Article

for making such


persons not

of

____________________

6Inexplicably, the Armco court indicated that it would have


_____
approved the determination of dispositive pretrial motions by the
___________
master.
In re Armco, 770 F.2d at 105 (dictum).
The Sixth
____________
Circuit was "unable to follow the [Armco] court's reasoning" on
this point. In re United States, 816 F.2d 1083, 1091 (6th Cir.
____________________
1987). We, too, are baffled.
13

Article

III

stature)

in

the

face

of

contemporaneous

objection.7
C.
C.
__

In plotting the intersection where Article III and Rule


53 cross,
courts

we do not write on a

that

have confronted

Pipeline era have


________

refused to

masters over timely objection.8


at

1169

(holding

that, under

pristine page.
this

issue

The four circuit

in the

allow references

post-Northern
________

of liability

See In re Bituminous,
___ ________________
Article

III

and

to

949 F.2d

Rule 53,

the

district judge must decide "dispositive issues of fact and law");

Burlington N. R.R. v. Department of Revenue, 934 F.2d 1064, 1073


___________________
_____________________
(9th Cir.

1991) (ruling that

the district court's

the issue

of liability

master violated

to a

reference of

Rule 53, and

its

____________________

7We think it is instructive that in drafting the Federal


Magistrates Act of 1979, codified as amended at 28 U.S.C.
631639 (1988), Congress was careful to avoid granting magistrates
the power to rule on dispositive motions or determine liability
without the
parties' consent.
Magistrates may
proffer
recommendations on such matters, but, if any party objects, the
district court must make a de novo determination, which may
__ ____
include recalling witnesses where credibility is critical to the
inquiry.
See 28 U.S.C.
636(b)(1)(B).
We have previously
___
warned that if a magistrate's authority was not so limited, "we
would find this . . . troubling indeed." Goldstein, 728 F.2d at
_________
35.

8Some circuits have not decided the issue directly, but have

authored dicta supportive of one position or the other.

Compare,
_______
737 F.2d

e.g., Jack Walters & Sons Corp. v. Morton Bldg., Inc.,


____ __________________________
__________________
698, 712-13 (7th Cir.) (if objection had been preserved, the
court "might well [have]
reverse[d]" reference of summary
judgment proceedings to a master), cert. denied, 469 U.S. 1018
_____ ______
(1984) with, e.g., Sims Consol., Ltd. v. Irrigation Power Equip.,
____ ____ __________________
________________________
Inc., 518 F.2d 413, 417 (10th Cir.) (suggesting that it would
____
have been proper to refer the case to a master for trial because
of the great distance the witnesses had travelled), cert. denied,
_____ ______
423 U.S. 913 (1975). We note that Sims, unlike Jack Walters, was
____
____________
decided before the Supreme Court handed down Northern Pipeline.
_________________
14

subsequent

failure independently to determine liability violated

Article III); In re United States, 816 F.2d 1083, 1092 (6th Cir.
____________________
1987) (holding

that the reference

master violated the


heard

by the

(concluding

litigants' "right to

district judge");
that, under

Rule 53,

granting the master authority


of this case").

of dispositive

But see
___ ___

motions to

have the basic

In re Armco, 770
____________

to preside at trial on

issues

F.2d at

the "district court

105

erred in

the merits

Loral Corp. v. McDonnell Douglas Corp.,


___________
_______________________

558 F.2d 1130 (2d

Cir. 1977) (upholding over objection,

Northern Pipeline era,


_________________
issues

to

master

district court's
on

the

ground

reference of
that

the

in pre-

liability

importance

of

classified materials to the litigation constituted an exceptional


condition).
Here,

the

district

court, understandably

frustrated

with the snail's pace of the litigation, referred the entire case
to a special master for findings

of fact and conclusions of law,

with no boundaries on the master's authority and no provision for


anything remotely
the

resembling de novo
__ ____

review.

The

authority to handle the case in this fashion.

reference

of fundamental

issues of

court lacked

Nonconsensual

liability to

a master

for

adjudication is not consonant with either Rule 53 or Article III.


D.
D.
__
Nor does
the

the district court's summary

master's final

reference.

The

report

rend harmless

court's entire rescript

pages and stated that

confirmation of

the overly

consumed less than

the judge's review "was made


15

ambitious

two

in the light

of

the strong presumption of

master's findings and


the mere

conclusions.

"laying on of hands"

magistrate's
cannot

validity" that he
We have

regularly held that

by a district judge

or master's recommendation

inoculate

accorded to the

proceeding

who adopts a

of liability

against

the

pro forma
___ _____

pathology

invariably follows from noncompliance with Article III.

that

See Reed
___ ____

v. Board of Election Comm'rs, 459 F.2d 121, 123 (1st Cir. 1972);
__________________________
Rainha v.
______

Cassidy, 454 F.2d 207,


_______

Burlington N. R.R., 934 F.2d


___________________
court

violated

substantive

Article

at 1074 (ruling

III

explanation for

208 (1st Cir. 1972);

where

its

that the district

review

affirming" the

see also
___ ____

"provided

no

master's findings).

In the circumstances of this case, the judicial

determination of

liability was not sufficiently independent to save the day.


Like the bark of
Conan Doyle,

a dog to Sherlock Holmes,

see Arthur
___

Silver Blaze, in The Complete Original Illustrated


__________________________________

Sherlock Holmes 117 (1976), the indicia of independent review are


_______________
telling

in this

case

by their

absence.

The

district

court

adopted the master's report without a hearing, without any stated


analysis

of

the evidence,

master's legal conclusions.

and

without any

discussion

A master's legal conclusions, unlike

his or her findings of fact, must be reviewed de novo.


__ ____
v. Dun & Bradstreet,

of the

Inc., 634 F.2d 1319, 1321 (10th

See Polin
___ _____

Cir. 1980)

_______________________

(describing district court scrutiny of master's legal conclusions

as "essential"); D. M. W. Contracting Co. v. Stolz, 158 F.2d 405,


________________________
_____
407

(D.C.

(1947).

Cir.

1946) (similar),

Moreover,

the

cert.
_____

denied,
______

controversy between

330 U.S.

Stauble

839

and

the

and

the

of

the

16

defendants

turned

almost

district

court heard

hearings

before the master

from

the record

it.9

no

entirely

on credibility

witnesses.

If

exists

a point

there is no

a transcript

which is not clear

sign that the district court read

Finally, although the defendants

objected in considerable

detail to the master's report, the district court did not comment
in
the

any particularized way on


matter was handled

district judge's
claims

was

their objections.

below, we reluctantly

contribution to

not

sufficiently

Mindful of how

conclude that the

the adjudication
participatory

of Stauble's
to

cure

the

constitutional infirmity.
IV.
IV.

THE REMEDY
THE REMEDY
This

litigation

recently

mourned

its

fourteenth

anniversary.
resources.10

It
At

has
this

already

consumed

point, the

inordinate

time

and

principal beneficiaries

are

____________________

9The record on appeal contains no transcript of the trial


before the master. The district court docket does not show that
a transcript was filed (or even prepared). The district judge's
rescript does not mention a transcript. In what seems a contrary
vein, the rescript recites that the court reviewed "the Special
Master's Final Report and defendants' objections thereto," along
with "the plaintiff's application for adoption of the Final
Report, supporting memorandum and appendices, and, finally, the
defendants' opposition."

10The history of these lawsuits bears out the Court's


warning that indiscriminate references of cases to masters may
actually increase, rather than shorten, the amount of time
necessary to bring litigation to fruition. See La Buy, 352 U.S.
___ ______
at 253 n.5.
Although this case was trial-ready in mid-1986,
final judgment was not entered below until December 19, 1991. Of
the intervening five and one-half years, roughly eighteen months
was spent fighting over whether the case should be referred to a
master; a period of approximately eight months was needed to
produce thirty-five trial days; a year and one-half elapsed from
the trial's end to the rendition of the master's report; another
17

the

litigators, not the litigants:

the award of attorneys' fees

already dwarfs the award of damages.


Against this

lugubrious backdrop, the

appellee argues

that, even if the lower court lapsed into error, we

ought not to

perpetuate the litigation, but should decide it here and now.

In

support of
Inc.
____

v.

1942).11

this proposition, he cites Adventures in Good Eating,


__________________________
Best Places to Eat, Inc.,
___________________________
There,

the Seventh

exceptional conditions such as


held that the district
to a

master.

reviewed the

Id.
___

131

Circuit was

F.2d

"unable to

the rule . . .

The court

record and upheld the

of appeals

find any

entire case

nevertheless

master's conclusion, finding

it to be "one which was well nigh inescapable."

is not such a case.

Cir.

contemplates" and

court erred in referring the

at 814.

Despite our

809 (7th

fervent wish that it

Id.
___

were otherwise, this

Unlike Adventures in Good Eating, the record


_________________________

____________________

eight months went by before the district court acted on the


defendants' objections to the report; and over a year passed
before the court disposed of the prevailing party's claims for
attorneys' fees and costs and entered final judgment.
11Stauble also

relies on Johnson Fare Box Co. v. National


_____________________
________
Rejectors, Inc., 269 F.2d 348 (8th Cir. 1959) for the same
________________
proposition.
Such reliance is mislaid. In Johnson, the court
_______
held that the reference to a master for trial was not justified
and punished the defendants (who had sought the reference in the
first place) by taxing an extra share of the costs against them.
Id. at 351. Johnson's approach is not helpful where, as here,
___
_______
neither party requested the reference. Moreover, although the
Johnson court stated as an aside that an "improvidently or
_______
improperly granted" order of reference would not necessarily
"entitle the [losing party] to a reversal," id. (dictum), a later
___
opinion of the Eighth Circuit aligns that court with the views we
announce today and, in the bargain, divests the Johnson dictum of
_______

the significance that Stauble

attaches to it.

See
___

In re Armco,
___________

voluminous, the factual issues are

tangled, and

770 F.2d at 103.


18

in this case is

the legal issues are

largely factbound.

On several

the testimony is

capable of supporting conflicting

Credibility

vital

is

litigation.

In

such

to

reasoned

key points,

conclusions.

determination

straitened circumstances,

of

even the

the

most

searching review of the record by an appellate court would not be


a

satisfactory substitute

with Article III.

for a

trial conducted

in accordance

See Dedham Water, ___ F.2d at ___ [slip op. at


___ ____________

22] (appellate factfinding is generally "permissible only when no


other resolution
record,
regret
this

be sustainable")

(collecting cases).

on the compiled
While

we deeply

the colossal waste of time and resources that has plagued


litigation,

court.12
V.
V.

of a factbound question would,

the

case

must

be

tried

by

the

district

The Constitution offers no other principled choice.

CONCLUSION
CONCLUSION
Article

United States be

III requires

that the

judicial power

exercised by federal judges appointed

of the

for life

tenure and
parties

protected

from diminished

to litigation may agree, at the

their own

contrivance,

to

make

compensation.

Although

behest of a judge or at

alternative

arrangements

for

____________________

12At oral argument before us, Stauble conceded that, if we


found the proceedings below to have been
constitutionally
deficient and declined to decide the merits ourselves, the
appropriate remedy on the facts of this case would be a full new
trial before the district court.
Because the parties agree on
this point, we leave for another day the possibility that a
master's findings and conclusions on a fundamental issue of
liability might perhaps be salvaged, even after appeal, by having
the district court conduct a deeper, more participatory sort of
review.
19

dispute resolution at
private
be

the hands of

which would otherwise

in this

instance, the

judicial power by asking


objection,

included.

to

issues of their disagreement,

come within the jurisdiction of an Article

III court, decided by non-Article

timely

even

citizens, parties who object to such a departure may not

forced to have the fundamental

that,

judicial assistants or

III surrogates.13

It

district court delegated

a special master, over


determine

the

entire

follows

too much

the defendants'
case,

liability

We
reversed,
remanded to

need

the

go no

judgment

further.
below

the district

The

order of

is vacated,

court for a

and

new trial.

reference is
the
All

cause

is

parties

shall bear their own costs.

So Ordered.
So Ordered.
__________

____________________

13A judge may, of course, refer the fundamental issue of


liability to a master without running afoul of the Constitution,
so long as the judge is prepared to afford de novo review or
__ ____
otherwise to honor Article III's commands.
20

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