Appendix — La Buy v. Howes Leather Co.

- IN. THE Zs ie .

UNITED .STATES ‘COURT OF APPEALS

- For THE SrVENTH. Circurt

OcrosperR TERM AND Session, 1955: °

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Howes Leatuer Coypany, Inc. and j

MontTGOMERY W ARD & Co., Incor- aed hie a

PORATED, | | “a

. ~ Petitioners,

we ° ae ’

- Hononabe Water J. hi Buy, :

On Petition for a

i a Repent Writ ‘of Mandamus

No. 11473 : Pie

Howes LeatHer Company, Inc...

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, Petitioner, . 5

: ee i ay ag bs a.

Honoraste Water J. La Buy, ~ ~*~] , o

Respondent,

October 13, 19555 "i ‘a

ee

Before Durry, Chief J udge, Masor and LINDLEY, Circuit,

Judges. | PRN

_ jist, Oiwesit Judge. These causes are : hefore us on

aprate petitions seeking writs of mandamus directing thes

Honerable Walter J. La Buy, Judge of the United. States

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District Court, to vacate orders. entéred February 24,.

1955, referring two related civil éases then pending befere

him to a master for trial.

‘At the outset, we are met with the contention that we

have no jurisdiction to enterteath these petitions. inasmuch

as the pertinent orders are interlocutory in characfex, The

‘argument is that the extraordinary procedures permissible

under the All Writs Act, 28 U.S.C.9. § 1651, may not be

employed as a device for review of such orders in advance

_ of final decision.

We see no:reason to depart from our recent holding in

Chicago, R. I. & P. R. Co. v. Igoe, 212 F. 2d 378, that we

have the power, in extraordinary. cases, to entertain a pe-

tition for a writ directing a district judge to vacate an- .

unauthorized Mterlocutory order in advance of final deci- .

_ sion. There we relied’ on a series of decisions by the

_ courts of other circuits of which Paramount Pictures ¥.

Rodney, 186 F. 2d 111, cert’ den. 340 U.S. ‘953. (CA-3),

\Ford Motor Co. v. Ryan, 182 F. 2d 329, ert. den. 340 U.S.

. 851.(CA-2), and Wiren v. Laws, 194 F. 2d 873 (CA-DC), |

are representative. All. of these cases involved the ques-

tion of whether mandamus would lie to revieW an order -

entered on a motion under 28 U. S. C.-A., § 1404(a), to

transfer a pending case to another district for trial. To

this array of authorities we now add In re Jo enn: 218:

F. 2d 174 (CA-1).

Our attention is direvted to In re Narragansett Pier

Amusement Corp.,'224 F. 2d 231 (CA-1), and we are

urged to reconsider the jurisdictional question in the light

of that opinion. In Narragansett, wyich is the most recent

of a series of decisions by the Court of Appeals for the

First Cireuit dealing with mandamus, the court denied

leave to file a petition for a writ to compel a district

plage to vacate an.order referring eight related antitrust

“eases to a master for frial.. The basis dor the court’s de-.

cision was its finding that “no exceptional circumstances”

existed to justify invocation of mandamus ‘jurisdiction.

As we analy ze the decisions which that’ court has made

in this s@ries of cases, we do not bélieve its position is

a “e ¥s

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ars" ry

basically incompatible with our decision in the Rock Island

case. The First Circuit’ recognizes that it has jurisdic-

tion to entertain petitions for extraordinary writs directed

toward review of interlocutory orders of the district

‘eourts, wherever exceptional circumstances exist which

justify use of the procedure. Such is the tenor .of the ©

language employed by that court,in: In re Narragansett

- Pier Amusement Corp., 224 F. 2d 231 ( GA-1); In re Syl-

vania Electric Products, Inc., 220/F. 24-423 (CA-1) ; In re

Previn, 204 F. 2d 417 (CA-1); In re Chappell € Co., Ing., ;

201 F. 2d 343 (QAaN)). And in Jn re Josephson, 218 we os

174 (CA-1) ‘tke courtSdid entertain a petition for the Writ. ~

There the petitioner was plaintiff in a civil action brought

in Massachusett\ against a New Mexico corporation hav-

ing its principal] place of business in Massachusetts and |

_ the corporation’s\directors, all of whom were residents of —

that State. After process had been seryed, the court

granted defendant’s motion. under 28 ee Cc. A., § 1404

(a) and ordered the cause transferred t New Mexico for

trial. Josephson was granted leave to file a petition in

the Court .of Appeals for a writ of mandamus. In ruling.

on the petition, the court reviewed in some. detail the his-

tory of the mandamus power/in both the Supreme Cotrt

and the Courts of Appeals“{d reiterated its belief that? /

the power vested in the latfer is extremely: limited. The |

- eourt, however, conc'uded that it was-faced with. excep-

~ tional circumstances sufficient to justify exercise of the

> power ahd. proceeded to a consideration of the petition on

its. merits. y :

Thus, ofthe naked question of power; there seems to

be: no disagreement hetween this court.and that of the

First Cireuit. However, we differ withthe able jurists of .

‘that circuit in. evaluating the exceptidhal nature offthe ©

circumstances cufkeient ta endow the court with the power.

Compare Chicago, R, T. & P. R. Co. v. Igoe, 220 F. 2d 292

(CA-7), with In re Josephson, 218 F. 2d 174, 181 (CA-1).

To'this extent and on this basis; we feel constrained to

disagree with the decision.in the Narragansett case. The--

basis for that: decision is the view that if the issue as to

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the propriety of the ‘interlocutory order may eventually

reach the appellate tribunal by appeal after final. judg-

ment on the merits, then jurisdiction is wanting to test .

its propriety by mandamus i in advance of a trial and final

decision. Under such a view; it is immaterial whether or |

not any effective or adequate relief from ‘an unauthorized

order is possible by- way of bates from the final judg-

ment.

This is a much more rstricted position than that whitch of

we voiced: in the Rock Island case, 2 20 F. 2d 299. Assum-

_ing the challenged orders.to be beyond the governing rule,

respondent’s action in referring these cases to a master

is, in effect, a refusal on his part, as a judge, to try the~

causes in due course, rather than referring them to a

tribunal which is unauthorized by law. Unless we have- |

power to decide.the question of propriety of his action at .

this time, petitioners are faced with the necessity and

great expense of protracted trials-Wwhich conceivably may

-. eventually lead nowhere but tosa complete. retrial of the

causes before af competent tribunal. While we recognize” ~

that there isa doubtful area surrounding the dividing line

between the. power of this court and its lack of power to

issue the. writ, in view of the extraordinary nature of these

‘causes, we think ‘that any doubt must be resolvéd in favor

‘uf the existence of the power to- issue the writ,jf we find

that the orders were beyond -the court’s power under the -—

pertinent rule. See Chicayo, R. I. d P. R. Co. v. Igoe,

(212 F.'2d 378, 381 (CA- 7); Fore ind ata Tal Ryan, 182

F. 2d 329,. 330, (CA- 2).

~ Upon the merits of the petitions, then, we are concerned

only with the question of whether the contested orders

are in conformity with the provisions of Rule 53 (b) of the

Federal Rules’ of Civil Procedure,. 28 U..S. C. A. B:

°< Petitioners in No. 11472 are defendants in a civil ac- -

ae tion instituted in the court below entitled “William Rohlf-

ing, et al. v. Cat’s Paw Rubber Cé., et al.,” No. 50-C-229.

Petitioner in No.. {1473 is defendant in a. fort action

pending below - entitted ‘‘Norman P. Shaffers et al., v.

United States Rubber Wo., et-al.,” No. 50-C-884 Fach cause

is assigned to the cal ndar of Judge Le Buy for trial..

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_ The averments of,each petition -aré Substantially iden-

tical, and the following statement of fact, taken from the —

petition in No. 11472, controls disposition of both peti- .

tions. The Rohlfing case, from which this action stems, ~

was instituted by a complaint filed by 87 independent shoe

repairmen against petitioners-and others, praying equit-.

able relief and damages by reason of defendants’ alleged

violations of the antitrust laws. cy

The cause came on. for trial on February 23, 1955. Judge

La Buy suggested that it be referred to a master for trial

and, on the following day, over the objections of peti-

tioners. entered an order of reference. The essence of the

-order follows: “The, Court, béing confronted with ‘an; ex-

tremely congested calendar, and finding that exceptional

conditions exist for this reason, is of the opinion that ,this

ease can be more adequately and intelligently presented .

to-the Court for ultimate disposition by reference to a

master.” On, April 29, all parties. to .the action moved

to vacate the order. These motions were denied May 6,

1955.. On May 18 the parties appeared before the master, —

purstant to notice, for trial of the cause. At this time.

all the parties presented objections to the reference. On -

May 20, the master ruled that thecause would proceed to

G trial before him; whereupon petitioners filed their peti-

tion in this court praying that a writ of mandamus. issue

-'" to'compel Judge La Buy to vacate the order and ‘to direct

trial of.the cause to proceed before the -court.

. “The only material factual difference’ between No.. 11472

and No. 11474 is that the Shaffer case (No. 11473) -hade

not been called for hearing before the'master prior to the

date when the petition for writ of mandamus was filed.

' Under the circumstances: recited in these petitions, how-

“ever, the same-principles and considerations até determi-

~ gative of the question of the propriety. of the order of ref-

erence in each case. / [ ned

he \. :

‘Rule 53(b) provides that: “A> reference to.a Master

. ghall be the exception; and not the rule. In actions to be

tried by a jury, a reference shall be made only when the °

issues are complicated; in actions to be tried without a

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jury, save in matters of account; a reference shall be made Ff

only upon a showing that some exceptional condition re-

' quires it:” In support of his action, respondent outlines

the. complexity of these cases in which the court must de- F

termine the question of liability of each of the several de- £

. fendanis to each of the plaintiffs and, the element’ of ac-

- counting which must enter into the final judgmént. He

asserts that consideration of these factors, together with f

the faét that he is facedpwitlr an extremely congested cal-

_endar, brings the cases within. the “exceptional condition” ,

proviso of the Rule, and that the orders for reference con-

_ stitute, therefore, an exercise of a somnd discretion which

_ this court: should not disturb.

Our exact ‘question, then, is pera thé facts presented :

in justification of the orders of w hich complaint is made,

- as a matter of law, bring the orders of reference within

the exceptional circumstances mentioned in the rule. In f

other words, has the district.court failed to conform to the

_ rule of civil procedure prescribed by the Supreme Court. F

This is a question of law dependent upon the pleaded !

facts. Mere error of law in a decision upon the- issues f

presented to. the court, of course, is not ground for man- F

‘damus. But if the facts ffpon which the judge relied in en- [

terimg the order are wholly insufficient to justify noncon- F

formance with the rule, then the action of the’ judge in |

entering the order, over the objection of all. parties con- >

‘cerned, must. be held«so arbitrary and extraordinary as §

to justify issuance of the writ.

Measured by these -tests, we do not believe ot :

ents’ position tenable. Although evidence in. the nature of

’. taecounts may have a substantial bearing on the issue of ff

liability, the element of accountancy, in the sense intended

in the “acount” provision of the Rule,which these cases

contain can not: arise until ‘the \jssue of liability has been [

‘resolved. The rule refers to the subject matter of the con: |

troversy, not to the nature of the evidence which may be

introduced in the course of a trial. It provides a blanket,

permit for reference of any- accounting, see Troyak: v..

os Enos, 204 F. 2d 536, 544-5 (CA-7), but, even as to matters |

ee

_ of account, we agree with the belief expressed in Barrick

_v. Pratt, 32 F. 2d 732, 733-4 (CAS), that a referenceneed

not follow automatically in every:case. The Rohlfing and

| Shaffer cases, in their present status, before trial has been

- had on the question of, liability, are not “matters of ac-

F count.” Indeed, if the court finds that dgfendants | are not

> liable, there will never be an accounting.” The reference:

' cannot be sustained under thé “account” provise, and

' the prospective accounting issues may not, be relied on to.

- prove exceptional circumstances. “This is not an ac-

counting,. but the case is exceptional because’ an.. account-

‘ ing may be necessary “and because some of. the evidence ,

: bearing on the issue of liability may -be relevant also to

_ the issue of accounting should that prospective issue-.

arise” is an argument Ww hich seeks to expand the .positive

perinissive accounting proviso of the Rule to include any

and all issues which thay bear even a remote relationship.

toa question of an accounting. That, essentially, is the

-E argument made’ here which we find ourselves unable to

| accept. :

~The substance of the’ ‘remaining contentions is that the

. issues presented are complex; that the judge is confronted

| with a congested calendar; that the reference to a master

| will facilitate a speedy trial and disposition of the causes,

and that it cannot be said that the judge abused the dis-

}. cretion vested in him by the Rule in entering the orders

- complained of.

' There is an element of discretion inherent in the last

' clause of the Rule, 2. e., the trial court mfist determine in

> each case whether “exceptional conditions” exist which .

will authgrize a reference; When these orders ar - tested

, in the light of the interpretation place the Ruld by the

' Supreme: Court and the Courtggof Appeals, we can only

> conelude_that the orders complained of\ are bevand the

» permissive scope of the rule, and constifute an abuse of

discretion. Dixie Cup Co. v. Paper Container Mfg: Co.,

(174 F. 2d 834, 836, 837 (CA-7).

The reported iN stae are in ‘general agreement that a .

- congested calendar and the existence of complex issues Yai

4 not constitute exceptional conditions warranting refer-

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pees

‘ences to a special master. In McCullough v. Cosgrave, 309.

U. S. 634, a patent-ease was referred to a master for trial

on the trial cgurt’s recital that the judge to whom the case

was assigned was ill and no other judge could be obtained,

» that the parties desired an early trial, that the calendar

of the court was congested, and that the issues ‘were com- .

plicated. On an application for a writ of mandamus, the

Supreme Court-summarily directed the district judge to

vacate the order of reference and directed that the case be

set for trial before the District Court in due course, cit-

ing Rule 53(by and its prior opinion in Los = Brush

_ orp. y. James, 272 U. S. 701:

In the James case, the court made it plain that where

the subject matter’ concerns enforcement of the rules

which the court has formulated, thandamus may be em-

ployed to compel the district court to conform to those

‘rules. Concerning the reference to.a master, there the

court commented that there was no reason why one liti-

gant “should be subjected to any greatér expense than any.

other litigant, except as it may be involved in the inherent

and inevitable difference between the presentation of the

issues as to the merit and validity of a patent grant, and

that whi¢h obtains in the litigation of an ordinary hill for

‘ relief in equity, or of: an action‘at law upon a debt or for

a tort.” Los none Brush Corp. v. James, 272 U. S. 701,

707. ae

Even though in James, it might be thought by some that

the court indulged in dictum, it seems beyond argument

to us, that, in McCullough, the Supreme Court, by its de- °

cision, finally made the'law of the land in a case where

the issues were clearly drawn. 3 Fe Rules Serv. 53b.

122, Case 1, pages 496-7, reports that an examination of

_ petition, the return to the order to show cause, and

1 When » Rule 53(e) is considered in its entirety, the ‘weight to be ac-

corded the factor of compfex issues as bearing on an order of reference

is determined by the distinction. between “jury” and “non-jury” cases.

With respect to the former the Rule provides for a reference “only when

the issues are complicated,” while in the latter a reference is proper

only when “exceptional conditions” require it. Inasmuch as the framers

‘of the Rule made complexity of the issues a ground for reference in the

ohe instance, we think that they had reference. to something more than

_ complexity when the ground for reference in non-jury cases was defined

ag requiring the existence of “exceptional conditions,”

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briefs ‘on file with the Clerk of the United States Supreme

Court, discloses that, in McCullough, two agtions-by Kam-

merer Corporation and Baash-Ross Tool ¥.. against Mc- -

- Cullough and others, filed in 1935 and 1937 respectively, .

_and an action by McCullough agaist Kammerer and -

Baash-Ross, filed in 1938, all seeking injunction against

infringement of patents, had been consolidated for trial, .

but continued several times because of inability to reach

trial or by stipulation; that on January 15, 1940, the dis-

‘trict judge assigned the case to a master for trial, his

order reading as follows: © Laan

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“These consolidated cases having been set to be tried

before the Court on January 2, 1940, and the Judge be-

fore whom the cause was to be tried having been unable

to try the same because of, his physical condition, and all —

‘parties having expresséd the desire for an early trial, and

the Court having given counsel an opportunity to en-

deavor to secure another judge to conduct the trial; and

it appearing that these cases have been pending a long

. time and are’ patent suits seekingan injunction and re-

quire a protracted trial of compliéated issues; and the eal-

endar of this Court being congested and no other judge

being available to try the same within a reasonable time,

the Court finds that an exteptional condition exists which

requires and warrants a reference to a Master. * * *”

In the editorial comment! on the ‘case, in'3 Fed. Rules ©

Serv. p. 722, it was said:“A recent Supreme Court deci-

sion, although summary in form, should serve as a warn-

ing against too liberal use of the power of reference. |

See also comment to the same effect in Encyclopedia: of

Federal Procedure, 24 Ed. § 3425, p. 52, and Barron &

Holtzoff, Federal Practice and Procedure, Rules Ed.,

. § 1163, p. 872-873, :

It seems clear, therefore, by its decision inthe McCul-

lough case, the Supreme Court depended upon the doc-

traine it had announced in James. If it was improper for

‘the district judge in McCullough to refer the two Minees

to a master, so it seems beyond question that the order

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of the district eourt in the present, cases was likewise im-

proper and beyond the court’s legal power-under the rule.

forbidding references.

In United Statés v. Kirkpatrick, 186 F.2d 39 (CA. 3),

. 2 admiralty case was referred to a commissioner: for trial

/to relieve a congested d ket including a backlog of ad-

“ miralty controversies, the order reciting the-long pend-

ency of the. affected case, the desire of the parties for an

’ early trial and a shortage of judges to facilitate an early |

disposition of thé case. The Court of Appeals construed:

‘the language of Admiralty Rule 43 permitting a reference

“where the court * * * deems it nece&8sary for the pur-

pose of justice” and the “exceptional , condition” provi-

sion of Rule 53(b) as being in pari materia, requiring the

- existence of exceptional circumstances to warrant a ref-.

erence to a master. The court held that the factors re-

cited above did not constitute exceptional circumstances

and issued a writ of mandamus directing the. lower court

to vacate its order referring the case to a commissioner,

citing the McCullough .case.and Adventures in Good Eat-

ing v. Best Places-to Eat, 131 F.2d 809 (CA-7).

In McClellan v. Carland, 217 U. S. 268, the court held

that mandamus to require a trial court ‘to proceed: with

and determine a pending suit might issue by a court of ap- .

‘ peals in aid of its appellate jurisdiction. This was_ re-.

iterated in Ex parte United States, 287 U.'S: 241, at 246,

where the court held that a trial judge had no power to re-

fuse to issue a bench warrant, as it was not a matter of

. ates. Ya -but a mandatory duty to issue the warrant.

fn, Ex parte Skinner & Eddy Corp., 965 U. S. 86, the

Supreme ‘Court issued a writ requiring the Court of F

Claims to-set aside an order’ reinstating a cause which it. —

had ‘dismissed. The court said, at page 95: “It only re- |

mains to inquire whether this is ‘a proper case for the |

. writ asked. Mandamus is an extraordinary remedial proc-

ess which is awarded, not as a matter of right, but in the

_ exercise: of a sound judicial discretion. Although classed

as a legal remedy, in issuing it a court ‘must be largely:

controlled by equitable principles. Duncan Townsite Co.

ak Gis

v. Lane, 945 U!: S. 308, 312; Arant v. Lane, 249 U.S. 367,

871. It would be a useless waste of time anXeffort to en- "'

force a trial in the Court of Claims, if we-were, upon ap-

, peal, to find that the petitioner was unjustly deprived of

his substantial right to dismiss his petition, as we should

have to do for the’ Teasons stated.”

McCullough, James and "Kirkpatrick: and the. reasoning

in the other cases cited are, we think, decisive of the issues

efore us. Except in’ matters of account, reference to a

t master i is a tool which can be employed only sparingly and

only ia exceptional cases. Adventures in Good Eating v—

| Best Places to Eat, 131 F. 2d 809 (CA-7); tig a,

| Altheimer, 152 F. 2d 502 (CA- 7); In re Irving-Austin

| Bldg. Corp., 100 F. 2d 574 (CA-7). In this day of crowded

dockets and“voluminous calendars, the position now ad-

' vanced by respondent, if adopted, would make reference *

_ - to a master the rule rather than the exception in every

ease of a complicated nature which is filed in the district

court. ;

The cases principally relied on in support of the orders

are largely inapposite. Ex parte Peterson, 253 U. S. 300,

and Graffis v. Woodward, 96.F. 2d 329 (CA-7), involved

' the reference of jury ecas-s which involved complicated

_. factual issues.? Troyak v. tnos, 204 F. 2d 536 (CA-7), in

which we appgpyed an order referring the whole cause to

a master for trial, was an-action against a trustee for an

accounting: as to his handling of ‘a trust -estate. Further-

more, we indicated that“exceptional circumstances were

' present, in that the trial judge to whom: that case was

_ assigned had retired and was sitting by assignment only

| until a successor could be appointed and that disposition

of the cause required that hearings be held at various

places throughout the United States. |

In Roche v. Evaporated Mik Assn,319 U. S. 21, it was

-~ sought to mandamus the trial ey ba aside an-order-

: * Although the opinion in In re Narragan Pier |Amusement Curp.,

' 224 F. 2d 231, does not touch on the merits and therefore does not reach

‘the “jury”— “non-jury” distitiction, the order for refarence there com-

plained of was entered in a jury case on tas trial judge’ finding that the

issues presented were jo eomnpeentes.,

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striking .certain: pleas in abatement because he deemed —

them insufficient. The Supreme Court held that the action

complained of was merely the exefcise by -the court of its

jurisdictional powers in settling the issues in the case. It

said at page 27: “In sustaining the Government's -de-

murrers to the pleas and its motions to strike, the district

- court ‘did not.* * * refuse to act on the -pleas.. Instead, —

it held: that .they were insufficient in law to abate the

criminal prosecution. In thus ruling on questions of law —

decisive of the issue presented by: the pleas and repli-

cations the district court acted within its jurisdiction as

a federal court to decide issues properly brought before

it.” Obviously, the court was not confronted with a claim

that the trial court had transcended ‘a rule promulgated

by the Supreme Court. Just as ohviously the“trial court

here was not “acting within its jurisdiction as a federal

— eourt to decide issues properly brought before it”, for here

the court was not deciding issues presented but was, over. |

the objection of: both: parties to the suit, refusing to be

bound by the rule.

-.In Bankers Life & Casualty Co. v. Holland, 346 U.S.

379, thé district court had severed an action for treble

- damages under an antitrust act as to one defendant, and

transferred, the cause as to him to the district where he

lived. The opposing party-sought mandanius to ¢ompel

‘the judge to set aside the ordery Fhe Supreme Court

‘held, that inasmuch as the district eourt had jurisdiction

both of the subject matter‘of the,suit and of the person,

jt became necessary and proper for it to rule upon the

issue raised in the due course of the litigation. The

Court, at page 382, said: *‘The ruling on a- question of

law decisive of the issue presented by Cravey’s motion

and the ghee Bg gr petitioner, was made in the

course of: the exercise, of the court’s jurisdiction to decide

‘issues properly brought before it. Ex parte American

Stéel Barrel Co., 230 U. S. 35, 45-46 (1913); Ex parte

Roe, 234 U. S. 70, 73 (1914)’” |

_ Helene ‘Curtis. Industries v. Sales. Affiliates, 105 F.,

Sapp. 886, was an action for a declaratory judgment as

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to validity and infringement of a patent. The cause was

referred to a mastér on the court’s finding that the liti-

gation tended to disrupt -irreparably-.the business. of

the whole. industry affected and that the case could neat

be reached for trial by the-court for many months after

the date of ‘the application for a reference. In denying -

a petition for a writ-of mandamus ty compel the trial

court to vacate the order for reference, thé Court of

Appeals for the Second Circuit sustawféd* the lower

court’s. finding as to. exceptional conditions. Helene

Curtis Industries v. Sale. Affiliates, 199. F...2d 732. The

opinion reflects the latter court’s view that petitioner’s

objection: to the reference ‘was not made in good. faith. ©

Thus, the court referred with approval to the finding by

the District Court that defendant was guilty of ‘‘foram

shopping with a vengeance’’, in that it did all within its

power to stay the declaratory judgment suit until a

patent infringement suit subsequently .filed by it in an-—

other federal district had been decided. The petitioner

was in the unenviable position of resisting an early dispo-

‘ sition of the controversy in New York, while arguing that

the New York ease should be stayed on the ground that a

decision eould be had sooner-in Texas. ~~

- In Neale v. McCormick, 19 F. 2d -320, cer. denied 275

U.S. 530 (CA-9}, the court approved the wholesale ref-

erence of all patent cases to a master to alleviate the —

congestion. of the court calendar. We think this case cab-

not be reconciled with either the James case or the Mc-

Cullough case, and find ourselves’ unable to accept the

postulate upen which the decision -rests. We likewise

reject the wice fone 3a In re Narragansett Pier

Amusement Cor}

stated in the discussion of the jurisdiction question. :

ee We are extremely reluctant to be compelled to enter-

.tain a petition for a writ of mandamus against a dis-—

trict judge.. We are not .unmindful of the possible un-

healthy consequence of such a proceeding, which the

Supreme Court has so clearly summarized. Ex parte

Fahey, 332 U.S. 258, 259-260; Bankers Life € Casualty

Co. Vv. Holland, 346 U. S. 379 at 384-385. And we are

e

\, 294 F. 2d 231 (CA-1), for the reasons

..

a |

—Ma— .

~not—iana'ware: of. the. congestion in the calendar: of the

judges of the court below, or unsympathetic with the

problems which this condition imposes upon them. It

appears, ‘however, that advantage might be taken of the

pre-trial procedures at the court’s disposal to facilitate

an expeditious disposition of the cases and to ease some-

what the congestion problem’ Also, if need be, the pos-

‘sibility ‘and advisability of king that these cases be

reassigned to -a different judge for trial might well be .

explored:

Although reluctant to inake use of the drantio remedy

of mandamus, we believe that these causes present circum- |

stances which make an appeal from a’ final judgment a

wholly inadequate remedy. In accord with the views ex-

__pressed herein, we direct that the writ issue in each case

* directing respondent to vacate the order of reference and .

directing that a trial of-each cause be had in due course

before the District Court. saicbeat, ¥. Cosgrave,

supra.

Magsor, C. Ji, pee I agree. that ‘this court has the

jurisdiction and power to issue the writ. The question is

whether in the exercise of a sound discretion this is an

appropriate case for the utilization of that power. As was

stated in Roche et a. v. Evaporated Mik Association et

al., 319 U. S21, 2!

‘*The common gt wit

may be granted or withhétd in the

the court. Ex parte Peru, supra, p. 584, and cases

cited; Whitney v. Dick, 202 U.S. 139. 136, 140. Hence

the question presented on this record . is not whether

the court below had power to grant the writ but

whether in the

case was an appropriate one for the exercise of that

power. In deteymining what is appropriate we look

to those principles whjth should guide judicial -dis-

eretion in the use of dn extraordinary remedy rather

than to formal rule rigorously controlling judicial

action.” | . |

a See Report Jiiak by Judicial Conference of the United States,

April 21, 1951, 13 F. R. D. 62.

sswlike equitable remedies,

“SOund discretion of

tht of all the cireuumstances the

~

—15a—

Further the, court stated (page 96) :

jurisditken) both at common law and in the federal

courts hasbeen to ¢onfine an inferior court to a law-

. ful exercise of its:prescribed jurisdiction or to com-

- pel it to exercise its authority when’ it is its duty

to-do so. [Citing cases.]’’

isd) oth use of the writ in aid ob caniliide

The last statement was quoted with approve in Bankers

Life € Casualty Co. v. Holland et ai., 346 U. S. 379, 382,

and the court pointed out that the respondent Judge had‘

jurisdiction of the subject matter-and the person and that

it was necessary in the course of the litigation for him to-

make the ruling under attack. The court further stated:

‘Its decision against petitioner, even: if erroneous—

which we do not pass. ipon—involved no abuse of

supra, and is’ reviewable. upon appeal after

judgment. If we applied the reasoning a hag by

the: petitioner, then every interlocutory order which

is wrong might be reviewed under thre All .Writs

Act.”’

‘No criteria are supplied either by statute or = for

determining the ‘‘exceptidnal condition’’ referred to in

Rule 53 (b). Therefore, Judges might well disagree as to

the circumstances which would justify a reference. Re-

spondent in the exercise of. his judgment concluded? that

the cirenmstances were sufficient and ruled agcordingly.

‘\ Judge with authority. to make a correct ruling has the

same authority to make an erroneous raling. As was

_ stated in the Roche ease ‘(page 27);

‘Tis decision, even if erroneous—a question on which

we do not pass—involved no abuse of judicial power, “%

_and any error which it may have committed is re- -

viewable by the circuit court of appeals upon appeal

‘ appropriately taken from a final judgment, and by

this Court by writ of certiorari,”’

judicial power, Roche v. Evaporated Milk (A aa

al

oe

—16a—

Stated another Way in the same aia (page '32):

‘‘In the present case, the -tlistrict court has acted

within its jurisdiction and has rendered a decision

whit even af erroneous, involved no. abuse of

dicial power.’’ |

>

| The majority opinion asteris that vetaoedient in enter- *

ing the ‘order $f reference abused his discretion. No

reason is assigned, however, for such holding other than

that .Tespondent made an erroneous ruling. But that is

‘not sufficiertt,“as is shown by statements from Rocke. and

Bankers Life, supra. In fact, respondent in entering the

order under attack had at least as wide a discretion as

this court has in deciding whether the writ should issue.

In my opinion, there was no abuse of discretion by re-

spondent, but the ot esd of the writ will constitute an :

abuse of: discretion this court. The shoe is: to be

placed on the wren foot. :

The majority opinion reasons that unless ‘actin is

taken at this time. ‘‘petitioners are faced with the ~

necessity and great expense of protected trials which

conceivably may lead nowhere but to a complete retrial -

of the cause before a competent tribunal.’’ This sort of

reasoning has ‘been definitely repudiated. In the Roche .

. ease, the court in response to the same contention stated .

(page 30):

_ ““We may assume, as they allege, that that trial may

be of several ménths’ duration and may be corres-

pondingly costly and inconvenient. But that incon-

venience is one which we must take it Congress

contemplated in providing that. only final judgments

should be reviewable. Where the appeal statutes.

establish the conditions of appellate review, an ap- 2

pellate court cannot rightly exercise its discretion -

to issue a writ whose only effect would be to avoid -

those conditions and thwart the Congressional policy

against piecemeal appeals. in ¢riminal cases.”’

. See’same case, page 31, and also the 28 gps Life case, /

page 379. Respondent’s action at most_constitutes no

more than an erroneous ruling entered An the~ course of

4a

1 | —lfa— 4

e* proceeding and will be subject to review ot appest

ftom a final judgment.

The majority places great peg ee McCulloughy e

al. % Cosgrave, 309 U. S. 634, and ited States > 2

Kirkpatrick et al.,A86 F. 2d 393. Tye opinion stafes tHfat ‘

these two cases are ‘‘decisive of th€ issues before us.” In

-my view, that iy an erroneous conception of those cases.

As stated, the Supreme Court in McCullough summarily

ee a District Judge to vaeate an order of reference.

*) pparently there has been" considerable lodse talk as .to

.the reason for the court’s action, which ‘I suspect that

court will, sooner or later, be called upon to repudiate.

- 4t is not diffiealt, however, -to ascertain why the. Supreme

Court - directed the issuance of. the writ in that case.

While it stated no reason, it cited only Los Angeles

Brush Manufacturing Co. v. James, 272 U.S. 701. Tn

the James case, as in the ‘instant case, it was sought

by mandamus to. compe] a District Judge to vacate an

order referring a patent case to a- Master. On page 703.

of the opinion, the order of the District Judge is set forth,

whith contains the reasons for making the reference, con- _

‘sisting in the main of a congested ‘court calendar. While

the reference in that case was under Equity Rule 59, it

is pertinent to note that the requirement under ‘that rule

was substantially the same as under present Rule 53 (b),

that is, that it should be made ‘‘‘only upon a showing that

Some exceptional, condition requires/it.’? The Supreme

Court denied issuance of the writ but engaged in .

considerable discussion relative to mandamus, evidently

for the enlightenment of District Judges (‘see page 708).

In that discussion the court stated (page 707): :

s ‘‘Were it [the Supreme Court] to find that the rules

have been practically nullified by a district judge,-.or

by a concert of action on the part of several district

judges, it would not hesitate to restrain them.”’

Evidently that is the stateemnt in the James cote which.

the court relied upon in the. McCyllough case. \Certainly the

court in the latter case did not cite the former as authority

for the proposition that a District Judge was subject to

-”™

pe me Ba

- mandamus for ordering a reference because of a congested

docket because the court in the James case’ refused to:issue —

a writ where the reference was made for that reason. If

there be any doubt, however, why the writ was directed to

issue in McCullough, it is dispelled. in Roche, wherein the

court stated (page 31):

‘Hence ‘there are in this case nq@ specia}Tircumstances

whith would justify the issuance of tle writ, such as

the persistent disregard of the Rules* of Civil Pro-

cedure prescribed by this Court, found in McCidlough ~

v. Casgrave, 309 U.S. 634 (see Los Angeizs Brush Co.

‘v. James, 272 U.S. 701, 706-8) * *.”” ee,

The Kirkpatrick case falls in the sare: category. There

it appear that a conference of District Judges was called _ .

by the-Chief Judge to formulate a plan to relieve a con-

gested dockét of admiralty casés. A plan was agreedsupon

among the.Judges by which such cases were to be referred

to Commissfoners. In fact, the court (page 397) referred

_ to the plan as ‘‘a wholesale reference of admiralty cases.’

t is true in Kirkpatrick the court (page 399), referring to

the McCullough case, stated that a congested court docket

was not regarded in that case ‘‘as sufficient to empower

the district.court’ to make a reference .in ;that ease.’’ J

think that is a gratuitous statement. Att any rate, no word

has’ been spoken by. the Supreme Court, directly or in-

directly, that a writ of mandamus should issue to restrain

a District Judge from referring a case to a Master be-

cause of a congested docket. On the other hand, the Su-

_ preme Court in James denied the writ where reference was

- _ mage for that reason and has clearly indicated that the

writ isgued in McCullough because of a practice or custom

to wefer all eases of a certain class toa Master.

Reference as was dome in McCullough and Kirkpatrick,

in accordance with gr by reason of a plan, practice or cus-

tom, constitutes an abdication of the judicial function. It

is the very antithesis of the éxercise of judicial discretion. -

A reference under such circumstances bears: no jebaeliches

' to that with which we are now: concerned. Respondent’s

\

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— 19a —

reply @ the rule to show cause sets forth! de circumstancés

Which he took into consideration. He deviddd, as he had

the authority to-do, that ‘the showing was sufficient. We

need not now be concerned with whether that decision was

correct or erroneous. In any event, there was no abuse af

judicial power which should move this court in the exercise

of jts sound discretion to issue this extraordinary writ.

’

Q No good purpose could be served in commenting’ upon

“numerous other cases referred to in. the majority opinion,

other than the recent ‘opinion of this court in Chicago, Rock

Island’ ‘and Pacific Railroad Company v. Igoe, 220 F. 2d

299. That ease rather than’supporting the opinion iflus-

trates its fallacy. There, the District Judge denied a mo-

_ tion for transfer under 98 U.S. C.*. 1404 (a). This court,

in directing the issuance of the writ, stated (page 304) :

“To warrant action by us, there must be something r

more than ay\erroneous decision. Our problem is, was

the refusal Hy the District Judge to order the transfer :

an abuse of diseretion?”? .

In the instant situation the most that’ ean be said. of re-

spondent’ s ‘action is that, he made an erroneous .decision.

In the Igoe case: we held that there had been an abuse of |

discretion on the basis that\the statute providing for the

transfer of cases,set forth the criteria to be étployed in .

ruling upon s¥ch a motion. ‘Such being the case;this court

concluded thgt there had been an abuse of discretion be- . .

cause respohdent had failed to follow the criteria which

Congress had prescribed. In the instant case, however, as

pointed out, the rule under consideration provides no cri-

teria as’ to. what constitutes the ‘exceptional ondition,”’

a respondent’ s judgment on that score:is, if vhallenged,

test to review on appeal from a final judgment. ,

Finally, the majority appears to place reliance upon the

fact that the order of reference“was’ made over objection

of both parties to the suit. .Any logic in this reasoning is

not discernible -ts me. The court’s jurisdiction, with - its.

tight to exercise its discretion in making the referen

was precisely the same whether it was.made with the ean- |

sent of the parties, oyer thei objection or on the court’ s

own volition, hey .

‘

- 20a —

The action of the aiseity will, in my judgment, seri- .

ously impede ‘the disposition of business in the District

Courts of. this Circuit, particularly in Chicago, where. be-

eduse of the heavy case load a Master is an indispensable

arm of the court. No District Judge can_now feel safe in

making such a reference, with knowledge that this court is

likely. to substitute its judgment for, his. If reference is

to be outlawed, it should be by legislation or Supreme:

= Court rule rather than by decision of this court. It is easy

to Speculate on other means ¢f relieving congested court _

calendars, such as the procurement of additional Judges.

Such Tile ak relief, however, which may never materialize,

is of little aid.- Distri t Judges are faced with realities

. which: speculative theorjes do not dispel.

I would deny the issuanée of the writ.

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