This reports
on a selection of recent cases of significance to courts and those who serve
courts as special masters.
I have had
the honor to serve a number of federal courts as special master, court monitor,
technical advisor, and one of a three-person committee of court monitors.
Courts
appoint judicial adjuncts in almost all areas of the law and for a variety of
purposes. Often they are appointed in federal court as Special Masters under
Rule 53. Sometimes they are called Court Monitors. Other terms are Technical
Advisors, Compliance Officers and the like. I have published elsewhere on the use of such
adjuncts. The terminology differs; all have in common an obligation to assist
the court and facilitate resolution of case-specific issues with fairness to
the parties.
1.
What relationships between a law firm and a special master are
inconsistent with the law firm’s participation in a case?
A law firm,
Rao Law Group, sought to enter its appearance for plaintiff to substitute for
another firm in the midst of a complex commercial dispute. A special master was
already involved to the tune of a half million dollars in invoices. Defendant objected due to prior relationships
between the special master and Rao. Rao had recommended the special master for
appointment; Rao and the special master had co-authored articles with one
another and had done business together. The federal district court dened Rao
Law Group’s request to enter the case. The Court found that, if Rao was in the
case, conflict standards for special masters would have prevented the special
master from taking the original appointment.
C.D.S. Inc. v. Zetler, 2017 U.S. Dist. LEXIS 43159
(S.D.N.Y. Mar. 23, 2017)
2.
Is there a difference between a “special master” and a “court monitor”?
In a school
desegregation case, filed in 1965, the court continues its oversight with the
assistance of an appointed “Court Compliance Officer” who is tasked with “monitoring
the integration efforts of the Tangipahoa Parish School System.” One ground for
an appeal from an order on a change in the CCO’s compensation was that the
district court had referred to the CCO as a “special master.” The Fifth Circuit
held that the court’s inherent power to appoint judicial adjuncts is not
meaningfully different from the power to appoint adjuncts under Rule 53 as
special masters.
The
fact that the district court referred to Massey as a special master is a distinction
without a difference. Although the CCO position was created pursuant to the
court's inherent authority in fashioning equitable remedies, see Ex
parte Peterson, 253 U.S. 300, 312, 40 S. Ct. 543, 64 L. Ed. 919 (1920), the
Board points to no authority to support its argument that the court's inherent
power differs in any meaningful way from its authority pursuant to Rule 53 to appoint special
masters, see Ruiz v. Estelle, 679 F.2d 1115, 1161 n.240 (5th
Cir. 1982) ("Beyond the provisions of [Rule 53] for appointing and making references to Masters, a
Federal District Court has the inherent power to supply itself with this
instrument for the administration of justice when deemed by it essential."
(quoting Schwimmer v. United States, 232 F.2d 855, 865 (8th Cir.
1956)) (internal quotation marks and citations omitted)), amended
in part, vacated in part, 688 F.2d 266
(5th [*202] Cir. 1982). Therefore, the district court's
characterization of Massey as a special master was not an abuse of discretion.
Moore v. Tangipahoa
Parish School Bd.,
843 F.3d 198, 201-202 (5th Cir. 2016)
3.
How much “ex parte” is too much?
Rule 53
requires a special master appointment order to address "the circumstances,
if any, in which the master may communicate ex parte with the court or a
party." Fed. R. Civ. P. 53(b)(2)(B). The Advisory Committee notes to the
2003 amendments recognize that ex parte communications present "troubling
questions." Fed. R. Civ. P. 53, Advisory Committee Notes (2003
Amendments). In ruling on a motion for attorney’s fees, the court here
considered whether its ex parte communications with the special master – which
were permitted under the appointment order – would warrant disqualification
under the standards for judicial disqualification. There was no inappropriate communication, the
court concluded.
In
this case, Judge Schwab's order appointing Mr. Stroyd expressly
stated that "the Special
Master may communicate with the Court ex parte on all matters as to
which the Special Master has
been empowered to act." (Order dated 9/6/13, ECF No. 120.) All of the
communications between Mr. Stroyd and the undersigned pertained
directly to matters within the scope of Mr. Stroyd's appointment. This
Court has not obtained any extrajudicial information concerning the parties or
this litigation that would warrant disqualification of the undersigned pursuant
to §455. Moreover, the Court's review is plenary as to both the factual
and the legal determinations set forth in the Special Master's Report and
Recommendation. Consequently, the Court finds no merit to Plaintiff's objection
insofar as it is premised on communications that may have occurred between
Mr. Stroyd and this Court.
Arneault v. O'Toole, 2016 U.S. Dist. LEXIS 166408, *14
(W.D. Pa. Dec. 2, 2016)
4.
Can a district court consider additional information in ruling on an
appeal from a special master’s decision?
This was a
case arising from the July and August 2006 rocket attacks launched by Hezbollah
into northern Israel. Plaintiffs, were victims and sued Iran and North Korea
under the state-sponsored terrorism exception to the Foreign Sovereign
Immunities Act, 28 U.S.C. §§ 1330, 1602 et seq. ("FSIA").
Codified at 28 U.S.C. § 1605A, the exception provides "a federal
right of action against foreign states" that sponsor terrorist acts. Haim
v. Islamic Republic of Iran, 784 F.Supp.2d 1, 4 (D.D.C. 2011).. A special
master heard the evidence and made findings which were appealed to the federal
district court.
Plaintiffs
did challenge the Special Master's
findings of facts or the master’s application of the law. Instead, they asked
that additional information be considered - information that not only was
available prior to the issuance of the Special Master's reports, but was not provided in response to
numerous requests by the Special
Master for clarification. The plaintiffs wanted a different
outcome. The court held that new information cannot be submitted for the
district court’s review of a special master decision.
Findings
of fact and conclusions of law are reviewed de novo. Fed. R.
Civ. P. 53(f)(3)(4). Significantly, de novo review "does
not necessarily mean a review that includes the submission of new evidence,
particularly when, as in the instant case, evidentiary proceedings previously
occurred before the Special Master," Commissariat
a l'Energie Atomique v. Samsung Electronics Co., 245 F.R.D. 177, 179 (D.
Del. 2007), and the record is "sufficiently developed" to permit the
Court to "merely conduct [*29] a de novo review"
of the challenged decisions and make "its own independent
determination." Lubyv. Teamsters Health, Welfare and Pension Trust
Funds, 944 F.2d 1176, 1185 (3d Cir. 1991)).
The
plain language of Rule 53(f) coupled
with the "sufficiently developed" record before the Special Master compels the
conclusion that the Court, faced with objections to the Special Master reports, is under
no obligation to consider new evidence. The Court is guided by the fact that
the rules governing review of a Special
Master's determinations are analogous to those which guide federal
district courts sitting in an appellate capacity of rulings by magistrates and
bankruptcy courts. In those situations, courts need not consider new evidence.
Kaplan v. Hezbollah, 2016 U.S. Dist. LEXIS 137938, *28-29
(D.D.C. Sept. 29, 2016)
5.
Special Master Appointment Order in J.F.
v. Abbott Labs, April 5, 2017, 2017 U.S.Dist. LEXIS 52098.
The order in
this case is significant in several respects: a) its detailed list of special
master roles, b) its anticipatory identification of the “what ifs” of possible
roles which the master might later play in the case, c) its allowance of the
master communicating directly with a party (and thus not through the party’s
attorney) in mediation or negotiation, and d) its address of possible future
changes in the order’s ex parte
communication provisions. (this is the first available text from the court, via
Lexis, and without Lexis’ editorial review; before quoting from this elsewhere,
consult the original docket or a reliable research tool).
United
States District Court for the Southern District of Illinois
April 5,
2017, Decided
Case No.
14-CV-847-NJR-SCW Case No. 15-CV-702-NJR-SCW
