In Re United States Department of Defense

STARR, Circuit Judge,

dissenting:

This is an unusual case, bringing with it a request for an extraordinary remedy. It is common ground that mandamus is not lightly to be granted, even if the appellate tribunal were of a different mind than the trial court on the issue at hand. See, e.g., Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34 , 101 S.Ct. 188, 190 , 66 L.Ed.2d 193 (1980) (per curiam) (“[M]andamus is a drastic [remedy], to be invoked only in extraordinary situations.”). But I would presume that, in the interest of the care and assiduity with which our District Court customarily conducts its business, the distinguished trial judge would reconsider embarking upon the proposed course of action at this particular juncture. In short, for reasons I shall now briefly set forth, appointment of a master seems to me quite premature. Less intrusive avenues, more keenly sensitive to the understandable concerns over national security information, are readily at hand. Their employment may well obviate the need for resort to a non-governmental actor to serve as a special master, thus rendering inapplicable at this time the extraordinary mechanism authorized by the terms of Rule 53.

I

It is important to recall at the outset the very limited nature of our enterprise today, inasmuch as we have been favored, by virtue of the procedural posture of the matter, only with application and opposition papers which went before the Motions Division of this court and which that Division determined were sufficiently problematic to warrant sending to a regular panel. The highly unusual nature of what has been wrought below is thus highlighted by this court’s unusual treatment of the matter, including setting the application down for oral argument on an expedited basis. I would assume that if the issue had not involved access to national security information, and highly sensitive information at that, either mandamus would not have been sought in the first instance or the Motions Division would have treated this in the ordinary course of practice, rather than fashioning the special treatment that the application has been afforded. Indeed, the *240 fact that substantial appellate resources have now been devoted to this question, including review at this early stage by no less than five members of the court, suggests the need for grave circumspection in the arena of national security information. For reasons now to be set forth, I believe greater care is called for before proceeding farther on the unusual course which has now arrested the attention of almost half of this court’s active judges.

II

Over the years, this court has sounded different themes with respect to the appointment of masters in FOIA cases. Here, in brief, is the state of the law as I read the cases: first, it is clear that special masters can indeed be appointed in FOIA cases. Vaughn v. Rosen and Meeropol v. Meese say as much. Second, their use is to be carefully limited, consistent with the points articulated in Meeropol. We should not overlook Meeropol’& language, which surely calls for care and prudence on the part of the district courts in venturing into the domain of Rule 53:

Indeed, in litigation of this size, the appointment of a special master will often present more problems than it will solve. If the master makes significant decisions without careful review by the trial judge, judicial authority is effectively delegated to an official who has not been appointed pursuant to article III of the Constitution; if the trial judge carefully reviews each decision made by the master, it is doubtful that judicial time or resources will have been conserved to any significant degree.

Meeropol v. Meese, 790 F.2d 942, 961 (D.C.Cir.1986). This cautionary language comports with the unequivocal language in the Rule itself. Appointments of masters, the Rule instructs, “shall be the exception and not the rule.” Fed.R.Civ.P. 53(b).

It is, in all candor, difficult for me to see how an appointment, however distinguished the proposed master may be, is “required” when other “non-master” routes are so readily available. It is undisputed that the judicially approved method of random sampling is available and as yet unemployed. Likewise available is an in camera Vaughn index and affidavit, presumably crafted with at least a modicum of care, that languishes unread. 1 Under these circumstances, it would seem almost by definition that an appointment cannot be “required” if other vehicles or avenues are at hand. To so hold has the obvious and untoward effect of draining Rule 53’s language of its natural meaning. That language, lest there be any mistake, sounds not in broad, sweeping terms of judicial discretion. Rather, Rule 53 commands a showing that some exceptional condition requires the appointment.

Here, it is by no means evident that a master’s appointment is “required” by an “exceptional condition” within the meaning of Rule 53, nor are any reasons evident in the record that would warrant such an appointment. The “exceptional conditions” referred to by the trial court include the *241 burden presented by the necessity of in camera review of voluminous, highly sensitive documents, particularly in light of the difficulty of obtaining security clearances for judicial clerks and staff. But these factors cannot constitute “exceptional conditions” requiring the appointment of a special master unless the court can point to some reason why other, judicially-sanctioned methods of dealing with these common FOIA problems will not suffice. This the District Court, with all respect, has failed to do.

The District Court’s rejection of government-conducted sampling, on the ground that “the integrity of sampling by the government has been authoritatively questioned,” is predicated on an unfortunate misunderstanding of this circuit’s law. This court has never purported to adopt the Third Circuit’s provocative observation, and in a modest footnote at that, that a representative sample compiled by the government may not in fact be truly representative. See Lame v. United States Dep’t of Justice, 654 F.2d 917 , 928 n. 11 (3d Cir.1981); cf . Mikva, Goodbye to Footnotes, 56 U.Colo.L.Rev. 647 (1985). The trial court’s rejection of random sampling as not “particularly appropriate for the circumstances here” tells us nothing about what it is about these circumstances that renders it inappropriate. Without more, this can only be characterized as ipse dixit. Similarly vague is the statement that the decision to appoint a master was informed by the District Court’s recent experience in another, less technical FOIA case. Although I am genuinely in sympathy with our trial judges seeking conscientiously to cope with the demands of these difficult cases, for aught that appears these “reasons” would justify the appointment of a master in all cases of this genre, in contravention of the express terms of Rule 53. If that is so, then we would appear to be left with a violation of the plain language of the Federal Rules. Cf. In re Wolf & Shenk, 842 F.2d 464, 466 (D.C.Cir.1988) (per curiam) (mandamus appropriate when district court order directly conflicts with Fed.R.Civ.P. 41(a)(1)).

Underlying the majority’s ready approval of and the trial court’s desire for a special master here is the notion that, in contrast to the difficulties presented by these other avenues, a special master can promptly and securely process the voluminous documents and neatly summarize the arguments the parties made (and could have made), thereby greatly facilitating resolution of the case. A special master, in short, will make life easier. Although this may well be true, it is beside the point. The vehicles bypassed by the District Court, which have enjoyed unquestioned appellate approbation, were developed and approved with the specific purpose of facilitating review of difficult FOIA cases by Article III judges, who are charged with resolving FOIA disputes. Although it is not for us to direct in minute detail how the trial court should perform what is indisputably its task, we should not be quick to sanction an extraordinary remedy when the District Court has yet to explain why other avenues, which have in the past enabled it adequately to fulfill its task, are unavailing. Surely convenience alone does not suffice as an explanation, for if it did masters would be the rule in all FOIA cases of any size.

The use in Rule 53 of the word “require,” we can safely assume, was no accident. To hold that trial judges have no obligation to explain why other courses of action, short of appointing a master, will not suffice thus empties the Rule of any content. At the very least, the trial judge must explain why a master is “required,” i.e., necessary or essential. See Webster’s Third New International Dictionary 1929 (1981). If Rule 53 really means “desire” rather than “require,” then today’s result follows. But as a matter of logic (and if the Rule means what it says), before a master is required, other ordinary courses must necessarily be inefficacious. In this case, there were at least two judicially approved alternative courses to follow short of appointing a special master. In my view, the District Judge is obliged to explain the reasons why those previously approved methods would not work under the particular circumstances of this case. Only then could we truly say that an excep *242 tional condition had required the District Judge to appoint a special master.

Ill

The stark language of Rule 53 means that reliance on judicial “discretion,” like reliance on agency expertise, cannot bridge the large gulf between “desire” and “require.” At other pivotal points in our law, the familiar and salutary principle of discretion has not been deemed adequate to insulate trial court conduct. See, e.g., Shea v. Donohoe Constr. Co., 795 F.2d 1071, 1072 (D.C.Cir.1986) (failure by district court to explore less drastic sanctions than dismissal constituted abuse of discretion); Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 399, 403 (D.C.Cir.1984) (district court abused discretion when it quashed subpoena without first exploring whether available alternatives might accommodate the parties’ interests). That being so, the proper question before us is this: what, on this record, requires the appointment of a master? In answering this question, it seems manifest that, say, Option 1 is not “required” if Options 2 and 3 are available (and efficacious). So to satisfy Rule 53, it seems incumbent upon us (or at least upon the trial court, whose action at this stage of the litigation is more shielded by the daunting standards governing the extraordinary writ of mandamus) to determine that “less intrusive” options are unavailing.

It is here that I am obliged to part company with my colleagues. They appear (albeit in the expedited, less reflective posture of this proceeding) readily to embrace an approach that has not heretofore even been considered, much less passed upon, in this circuit. 2 In brief, it would appear that representative samples (selected by a “neutral” party) are viewed by my colleagues as being just as appropriate as the already-judicially approved random samples, along with a Vaughn index, without any showing as to why the characteristic of “representativeness” must be satisfied. See Maj. op. at 236, 237-38. This, as I read the cases, breaks new ground. 3

IV

So why, in this case, will the less intrusive, judicially efficient mechanism of random sampling not work? To cut through the fog, Mr. Armstrong’s counsel at oral argument made the heretofore unspoken point rather clearly. It was, in essence, that the District Judge, based upon his “feel” for the case, did not trust the government to produce a random sample. If that is what is going on here, then a most serious charge indeed has been laid at the government’s feet. To state the obvious, it flies in the face of presumptions of regularity which guide us day in and day out, presumptions which grow out of a proper respect for the coordinate branches of our government. If there is a suspicion (or determination) of skullduggery or lack of candor in the Executive Branch, then let us satisfy the fundamental obligation of candor in the Judicial Branch and put the point on the table. Is it that the government, in this case, is not to be trusted? Has the government so conducted itself in *243 this case that the trial court has determined that the litigation requires going outside customary FOIA procedures and the invocation of extraordinary ones? What is it about this case that is different than any other multi-document, national-security case? What principle limits the appointment of a master to the “exceptional” conditions here but would be unavailing in other situations? See also supra 240-41.

These are the questions that cry out to be answered. But the questions go unanswered. My colleagues’ opinion, for all its words, is completely silent. And, after reviewing the record, I am satisfied that the District Court has remained silent as well. I frankly have not a clue as to why a master is needed here but not in every other voluminous-record, national security case. In consequence, the District Court should be instructed to reconsider its action and, if the trial judge chooses to stay his present course, to provide a specific justification for the proposed appointment consonant with the demands of Rule 53.

***** *

Today’s result can, at bottom, best be explained by the deference which appellate courts frequently, albeit not invariably, accord our colleagues on the trial bench. But in view of the extraordinary procedural posture of mandamus, it would surely be wrong to take our labors today as setting the course for the future interplay between Rule 53 and the understandable desire to deal effectively and fairly with sensitive FOIA litigation. The yellow light is flashing.

. My colleagues, however, find no support in the record for my observation that the trial court has yet to avail itself of the affidavit. Maj. op. at 239 n. 9. I read this to mean that if indeed the District Judge has not examined the affidavit for reasons nowhere stated in the record, then we would have quite a different case. At this stage, only the trial court and (presumably) the Government know the answer to this for sure. If the District Court has not in fact taken this step, then surely my colleagues’ remonstrating with me on the point argues in favor of the trial court’s examination of the affidavit. Indeed, it is hard to imagine the justification for refusing to examine the affidavit before resort to a master. It would be passing strange for the District Court deliberately to bypass a readily available source of information and yet for an appellate court to suggest that the "extraordinary condition” and "requirement" language of Rule 53 has been satisfied. And, in that respect, the language of the Rule itself stands as a rebuke to the remarkable proposition seemingly embraced by my colleagues that less intrusive remedies, which are consistent with the concerns informing Congress’ crafting of the First Exenjption to FOIA, may be dismissed by the trial court without an explanation of why they are inappropriate or inefficacious. Notwithstanding the majority's assertions, it simply does not constitute "manifest appellate court interference” in trial court affairs when appellate courts point to judicially approved procedures that have yet to be employed, without specific explanation, by the District Court.

. Moreover, the majority’s opinion goes beyond what is necessary to decide this case. The sole question is whether mandamus should lie to forestall the appointment. We therefore take this case as it comes to us procedurally, as a request for an extraordinary writ. There is no contention here, at least as the papers before us stand, that the trial court’s action constitutes a collateral order under the Cohen doctrine, so as to bring the question up for "true” appellate resolution. Cf. Hinton v. United States Dep't of Justice, 844 F.2d 126 (3d Cir.1988).

. Having seemingly sanctioned representative sampling as a matter of course, the majority asserts that "there is judicial authority for the judge’s additional authority to select a nonparty to conduct the sampling," Maj. op. at 238, pointing to the Third Circuit’s opinion in Lame for support. Lame is deliciously styled; it provides the most slender reed upon which to rely. See supra p. 241. Indeed, Lame , did not even involve the attempted appointment of a special master, and thus there was no occasion (as here) to consider the appointment of nonparties to assist the district court. Although I do not quarrel with the unexceptionable assertion that the District Court enjoys authority to appoint a nonparty, this authority stems solely from Rule 53. And Rule 53, to repeat once again, requires a showing that an exceptional condition requires the appointment.