USCA1 Opinion
March 16, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2158
IN RE DONALD PEARSON, ET AL.,
Petitioners.
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ON PETITION FOR WRIT OF MANDAMUS
FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Aldrich, Senior Circuit Judge,
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and Selya, Circuit Judge.
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David R. Geiger, with whom Joseph D. Halpern, Michele A.
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Whitham, Sarah Burgess Reed, and Foley, Hoag & Eliot were on
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brief, for petitioners.
William L. Pardee, Assistant Attorney General, with whom
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Scott Harshbarger, Attorney General, was on brief, for
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respondents.
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March 16, 1993
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SELYA, Circuit Judge. Petitioners seek a writ of
SELYA, Circuit Judge.
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mandamus which, if granted, will halt the district court's
nascent efforts to probe the continuing need for, or the possible
modification of, consent decrees affecting the operation of a
state institution, the Massachusetts Treatment Center for
Sexually Dangerous Persons (the Treatment Center). Because
petitioners cannot satisfy the strict prerequisites for
extraordinary relief by way of mandamus, we dismiss the petition.
I. BACKGROUND
I. BACKGROUND
The United States District Court for the District of
Massachusetts has been involved with the Treatment Center for
more than two decades. In 1974, the district court entered a
consent decree and supplemental consent decree in the case of
King v. Greenblatt.1 The decrees placed the Treatment Center
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under the primary authority of the Massachusetts Department of
Mental Health and obligated the department to operate the
facility in accordance with certain standards. The district
court specifically retained the right to amend the King decrees
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in the future.
Although the original plaintiff, King, soon left the
Treatment Center, other residents took up the cudgels. Over
time, inmates brought a variety of suits to enforce the decrees.
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1King, an individual confined at the Treatment Center,
brought suit, inter alia, to reform certain institutional
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policies and practices. Relevant portions of the original and
supplemental consent decrees are set forth as appendices in two
earlier decisions of this court. See Pearson v. Fair, 935 F.2d
___ _______ ____
401, 416-19 (1st Cir. 1991); Langton v. Johnston, 928 F.2d 1206,
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1227-28 (1st Cir. 1991).
2
The stream of litigation occasionally overflowed the district
court. See, e.g., Pearson v. Fair, 935 F.2d 401 (1st Cir. 1991)
___ ____ _______ ____
(Pearson II); Langton v. Johnston, 928 F.2d 1206 (1st Cir. 1991);
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Pearson v. Fair, 808 F.2d 163 (1st Cir. 1986) (per curiam)
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(Pearson I). The petitioners, all of whom were originally
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inmates of the Treatment Center and at least one of whom still
resides there, have been at the eye of the storm. In the early
1980s, they brought an action to enforce the King decrees, see
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Pearson I, 808 F.2d at 165, and subsequently survived the
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Commonwealth's challenge to their alleged lack of standing. See
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Pearson II, 935 F.2d at 404 n.4. Moreover, in 1988, the
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petitioners intervened in the King case and fended off the
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Commonwealth's motion to vacate the judgment therein.
The continuing saga of the federal courts' involvement
with the Treatment Center took a new turn in 1992 when the
district court, acting on its own initiative and without
providing advance notice, appointed a special master to analyze
"the impact of existing and pending legislation on the consent
decrees" and on "the operation of the Treatment Center"; to study
all unresolved claims alleging violations of the consent decrees;
and to advise the court concerning the Treatment Center's
operation and the continued viability of the King decrees.2
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The petitioners learned of this initiative after the
fact. They did not take kindly to it. When the district court
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2The district court's order is reproduced in the appendix.
We omit therefrom the master's curriculum vitae.
3
refused to alter its stance, the petitioners headed for the court
of appeals. In this forum, they ask for mandamus, asserting that
the lower court lacked jurisdiction to appoint a master because
King was dead, juridically if not literally, and because neither
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side was currently seeking, or had recently sought, modification
of the King decrees. Petitioners also assert a host of other
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challenges to the entry of the order and to its scope.
II. THE USES OF MANDAMUS
II. THE USES OF MANDAMUS
Congress has authorized the federal courts to issue
prerogative writs which are "necessary or appropriate in aid of
their respective jurisdictions." 28 U.S.C. 1651(a) (1988). As
the Court recently reminded us, a traditional use of prerogative
writs has been to confine inferior courts to the lawful exercise
of their prescribed jurisdiction or compel them to exercise their
authority when duty demands. See Mallard v. United States Dist.
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Court, 490 U.S. 296, 308 (1989) (quoting Roche v. Evaporated Milk
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Ass'n, 319 U.S. 21, 26 (1943)). This use is customarily
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accomplished by means of mandamus or prohibition (terms which we
employ interchangeably in this opinion). Such writs afford a
mechanism for immediate correction of acts or omissions amounting
to an "usurpation of power." De Beers Consolid. Mines, Ltd. v.
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United States, 325 U.S. 212, 217 (1945).
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Prerogative writs are drastic remedies which have the
potential, if overexercised, "to spawn piecemeal litigation and
disrupt the orderly processes of the justice system." In re
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Recticel Foam Corp., 859 F.2d 1000, 1005 (1st Cir. 1988). Thus,
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4
mandamus must be used sparingly and only in extraordinary
situations. See Allied Chem. Corp. v. Daiflon, Inc., 449 U.S.
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33, 34 (1980) (per curiam); Will v. United States, 389 U.S. 90,
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107 (1967); In re Insurers Syndicate, 864 F.2d 208, 211 (1st Cir.
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1988); see also Boreri v. Fiat S.p.A., 763 F.2d 17, 26 (1st Cir.
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1985) (warning that the writ's "currency is not profligately to
be spent").
To ensure that the writ's use is appropriately
rationed, we have, for the most part,3 insisted that a writ-
seeker limn "some special risk of irreparable harm," together
with "clear entitlement to the relief requested." Recticel, 859
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F.2d at 1005; accord In re Bushkin Assocs., Inc., 864 F.2d 241,
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243 (1st Cir. 1989); In re Justices of the Supreme Court of
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Puerto Rico, 695 F.2d 17, 20 (1st Cir. 1982).4 On the former
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prong, the petitioner "must ordinarily demonstrate that something
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3We qualify our statement because there are infrequent cases
in which the usual requirements may be relaxed. See, e.g., In re
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Justices of the Supreme Court of Puerto Rico, 695 F.2d 17, 25
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(1st Cir. 1982); see also In re Ellsberg, 446 F.2d 954, 956-57
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(1st Cir. 1971). Such cases invariably involve issues of great
public import, justifying resort to advisory mandamus. See
___
generally Recticel, 859 F.2d at 1005 n.4 (describing types of
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cases in which advisory mandamus may be suitable). The
petitioners do not suggest, and we cannot conclude, that the
matters implicated here fall into that category.
4In one sense, the "clear entitlement" language is a
misnomer. It seems more accurate to say that a petitioner's
entitlement to the writ depends on a two-tiered showing that the
district court's order (a) presents a special risk of significant
irreparable harm and (b) is palpably erroneous. See La Buy v.
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Howes Leather Co., 352 U.S. 249, 256 (1957). We use the phrase
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"palpably erroneous" to signify a situation in which the claimed
vice is plain as a matter of law and is also substantially
prejudicial as a matter of fact.
5
about the order, or its circumstances, would make an end-of-case
appeal ineffectual or leave legitimate interests unduly at risk."
Recticel, 859 F.2d at 1005-06; accord United States v. Sorren,
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605 F.2d 1211, 1215 (1st Cir. 1979). On the latter prong, the
petitioner must usually establish a "clear and indisputable"
right to the requested relief, Bankers Life & Cas. Co. v.
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Holland, 346 U.S. 379, 384 (1953) (quoting United States v.
_______ ______________
Duell, 172 U.S. 576, 582 (1899)), or, in other words, that the
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challenged order is palpably erroneous. See supra note 4. This
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dichotomous standard is sufficiently stringent that
"[i]nterlocutory procedural orders . . . rarely will satisfy
th[e] precondition for mandamus relief." Recticel, 859 F.2d at
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1006. Nonetheless, a district court's appointment of a master
may be so far afield, and the potential for mischief so great in
a particular situation, that immediate relief by way of mandamus
is warranted. See, e.g., La Buy v. Howes Leather Co., 352 U.S.
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249, 256 (1957); National Org. for the Reform of Marijuana Laws
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(NORML) v. Mullen, 828 F.2d 536, 541-42 (9th Cir. 1987).
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III. DISCUSSION
III. DISCUSSION
Because petitioners' variegated challenges reflect
neither a special risk of significant harm nor palpable error
attributable to the judge's interlocutory order, mandamus is not
justified. For ease in presentation, we discuss these points in
reverse order.
A. Presence of Palpable Error.
A. Presence of Palpable Error.
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The petitioners have failed to demonstrate that the
6
district court lapsed into palpable error or, stated another way,
that they are clearly entitled to the relief requested. To
explain why this is so, we deal extensively with petitioners'
main "case or controversy" approach and then consider their other
asseverations in a group.
1. The Case or Controversy Requirement. Petitioners
1. The Case or Controversy Requirement.
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strive to convince us that, at the time the district court
appointed the master, no justiciable case or controversy existed;
and that, therefore, the court's order plainly outstripped its
jurisdiction. Petitioners' exhortation has two strands. We find
neither strand persuasive.
a.
a.
__
The first strand might be subtitled: "On the Death of
King." Petitioners suggest that King was a "dead case" which the
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district court improperly resurrected. Whatever this morbid
metaphor may mean, it misses the mark. The entry of a consent
decree does not "kill" a case or terminate a district court's
jurisdiction. Rather, when, as now, an injunction entered
pursuant to a consent decree has ongoing effects, the issuing
court retains authority to enforce it. See, e.g., System Fed'n
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No. 91, Etc. v. Wright, 364 U.S. 642, 647 (1961) (explaining that
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structural injunctions "often require[] continuing supervision by
the issuing court and always a continuing willingness to apply
its powers and processes on behalf of the party who obtained
th[e] equitable relief"). By the same token, a court retains
authority to modify or interpret such decrees in light of changed
7
circumstances. See, e.g., id. at 646-47; United States v. Swift
___ ____ ___ _____________ _____
& Co., 286 U.S. 106, 114-15 (1932). This authority is part of a
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court's inherent powers and exists regardless of whether a
particular consent decree expressly so provides.5 See Swift,
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286 U.S. at 114; see also Fed. R. Civ. P. 60(b)(5)-(6).
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Since a district court has power to modify a consent
decree, it is impossible to say that the court below acted "in
clear excess" of its power, In re Justices, 695 F.2d at 21, in
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taking the much more tentative step of appointing a master to
investigate the possibility of modifying the decree. See Chicago
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Housing Auth. v. Austin, 511 F.2d 82, 83 (7th Cir. 1975) (raising
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no question as to jurisdiction in such a context). In other
words, nothing about the lower court's raising of a moistened
finger to test the winds implicated jurisdictional concerns.
To be sure, petitioners place great emphasis on the
fact that the original plaintiff, King himself, no longer resides
at the Treatment Center. Because of this fact, and because the
King case was never certified as a class action, petitioners
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categorize the case as defunct. We believe this taxonomy is too
simplistic. In the first place, the King case is not dead; it
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is, at worst, moribund. Even that description may be overly
pessimistic; petitioners themselves became parties in King five
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years ago (when the district court granted their motion to
intervene), and their status as parties has not been altered by
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5Here, of course, the district judge explicitly reserved the
power to amend. See Pearson I, 808 F.2d at 165.
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8
any subsequent order. In the second place, the King decrees have
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ongoing effects and other inmates continue to bring actions
seeking their enforcement. The district court obviously gave
weight to this reality, noting the "many cases filed by patients
at the Treatment Center." Moreover, in opting to appoint a
master, the court made specific reference to contemporaneous
allegations about institutional failings gathered by forty-eight
Treatment Center residents desirous of improving their lot.6
All things considered, we find the tales of King's demise to be
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greatly exaggerated.
b.
b.
__
The second, more substantial, salvo of petitioners'
jurisdictional assault bombards the spontaneous character of the
district court's action. This fusillade also goes awry. We
believe that a district court's jurisdiction to modify a consent
decree necessarily implies that the court does not act in clear
excess of its authority when it appoints a master, sua sponte, to
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look into possible decree-modifying changes. We explain briefly.
A consent decree is not simply a contract entered into
between private parties seeking to effectuate parochial concerns.
See Firefighters v. Cleveland, 478 U.S. 501, 519 (1986); United
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____________________
6Although these grievances were contained in a letter to the
judge, rather than in a lawsuit, petitioners apparently concede
that the district court possessed the authority to docket the
letter as a pro se complaint. We agree. See Haines v. Kerner,
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404 U.S. 519, 520 (1972) (per curiam); Soto v. United States
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Postal Serv., 905 F.2d 537, 539 (1st Cir. 1990), cert. denied,
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111 S. Ct. 679 (1991); McCall-Bey v. Franzen, 777 F.2d 1178, 1190
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(7th Cir. 1985); Gale v. United States Dep't of Justice, 628 F.2d
____ ______________________________
224, 226-27 (D.C. Cir. 1980).
9
States v. ITT Continental Baking Co., 420 U.S. 223, 236 n.10
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(1975). The court stands behind the decree, ready to interpret
and enforce its provisions. This ongoing supervisory
responsibility carries with it a certain correlative discretion.
See Wright, 364 U.S. at 648. Unlike petitioners, we do not
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envision a vast jurisdictional limbo in which courts forced to
exercise their equity powers remain powerless to question whether
what they have been doing "has been turned through changing
circumstances into an instrument of wrong." Swift, 286 U.S. at
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115. Put bluntly, "parties cannot, by giving each other
consideration, purchase from a court of equity a continuing
injunction." Wright, 364 U.S. at 651.
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This is especially so when, as in the instant case, a
consent decree calls for judicial supervision of a government-run
facility. In so ramified a setting, a court's decrees implicate
the citizenry's interests as well as those of the parties and
bear directly on the salubrious operation of public institutions.
See Heath v. De Courcy, 888 F.2d 1105, 1109 (6th Cir. 1989)
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(acknowledging that such decrees "reach beyond the parties
involved directly in the suit"); New York State Ass'n for
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Retarded Children, Inc. v. Carey, 706 F.2d 956, 969 (2d Cir.)
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(deeming it "well recognized that in institutional reform
litigation . . . judicially-imposed remedies must be open to . .
. accommodation of a wider constellation of interests than is
represented in the adversarial setting of the courtroom"), cert.
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denied, 464 U.S. 915 (1983). In institutional reform litigation,
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10
injunctions should not operate inviolate in perpetuity. See Rufo
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v. Inmates of the Suffolk County Jail, 112 S. Ct. 748, 762-65
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(1992); Board of Educ. v. Dowell, 111 S. Ct. 630, 637 (1991); see
______________ ______ ___
also Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312
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U.S. 287, 298-99 (1941) (explaining that continuation of an
injunction is justified only by continuation of the circumstances
which induced it). This must mean that, notwithstanding the
parties' silence or inertia, the district court is not doomed to
some Sisyphean fate, bound forever to enforce and interpret a
preexisting decree without occasionally pausing to question
whether changing circumstances have rendered the decree
unnecessary, outmoded, or even harmful to the public interest.
Against this backdrop, the fact that the court acted
sua sponte is not fatal. After all, Fed. R. Civ. P. 53, which
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governs the appointment of masters, does not necessitate a motion
as a condition precedent to judicial action. Taking our lead
from the rule itself, we hold that a district court is not
jurisdictionally disabled from acting on its own initiative in
appointing a master to ascertain the need for alteration of its
ongoing activities under a consent decree.7 Cf., e.g., INS v.
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7In its present posture, this case does not require that we
decide whether, or when, a district court may actually modify a
consent decree sua sponte. See Hook v. Arizona Dep't of
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Corrections, 972 F.2d 1012, 1016 (9th Cir. 1992) (stating that no
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justiciable controversy exists where a court proceeds to revise a
consent decree although neither party had moved for modification
as required by Fed. R. Civ. P. 60(b)); Cook v. Birmingham News,
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618 F.2d 1149, 1152 (5th Cir. 1980) (similar). The court below
has been circumspect, appointing a master only for limited
investigatory and advisory purposes. Moreover, some parties to
the litigation, most notably the defendants (who have agreed to
11
Chadha, 462 U.S. 919, 939-40 (1983) (explaining that, to be
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constitutionally sufficient, a case or controversy need not stem
exclusively from the adversarial positions of the litigants but
may stem from the real-world effect of a court's actions); Gomes
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v. Moran, 605 F.2d 27, 30 (1st Cir. 1979) (holding that a
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district court did not exceed its powers when it refused to bind
defendants to an "incorrect" decree despite their failure to
request a modification).
2. Petitioners' Other Arguments. None of petitioners'
2. Petitioners' Other Arguments.
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remaining asseverations reveals error of a kind or to a degree
required to justify a writ of mandamus. We deal in summary
fashion with certain of these asseverations, dismissing the
remainder without comment.
a.
a.
__
Citing La Buy, 352 U.S. at 256, petitioners contend
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that the order of reference constitutes an "abdication of the
judicial function" to a non-Article III adjudicator. Here,
however, unlike in La Buy or in Stauble v. Warrob, Inc., 977 F.2d
______ _______ ____________
690 (1st Cir. 1992) (where the district court referred the entire
case to a master for trial and adjudication), we think it far
from clear that the master's mission, as presently constituted,
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defray the master's fees for the time being and who have argued
in this court against the issuance of a prerogative writ), are in
agreement with the decision. Hence, we cannot say, on the record
as it currently stands, that the district court's action is
tantamount to a gratuitous modification of the consent decrees.
Cf. Thompson v. Enomoto, 815 F.2d 1323, 1327 (9th Cir. 1987)
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(ruling that the appointment of a special master is not an
immediately appealable modification of a decree).
12
extends beyond permissible bounds. All that can be gleaned from
the record before us is that the district court seeks information
about the efficacy of an ongoing injunction. On its face, this
seems a concinnous use of a master. See Stauble, 977 F.2d at 695
___ _______
(discussing use of masters in connection with "remedy-related
issues"); Chicago Housing Auth., 811 F.2d at 83-84 (refusing to
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annul appointment of master in analogous circumstances); see
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generally Vincent Nathan, The Use of Masters in Institutional
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Reform Litigation, 10 U. Tol. L. Rev. 419, 443-44 (1979). The
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order's scope, as the judge has delineated it, seems more akin to
rendering "mere assistance" to the court, a permissible use of a
master in many sets of circumstances, Stauble, 977 F.2d at 695,
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than to abdicating adjudication of "fundamental question[s]," an
impermissible use under any non-consensual set of circumstances.
Id.
___
b.
b.
__
It is also argued that the court's designation of a
master should be obliterated because Rule 53's core requirement
the bedrock concept that references are reserved for the rare
cases which present "some exceptional condition," Fed. R. Civ. P.
53(b) is completely unfulfilled. We disagree.
The case at hand is intricate. Its circumstances are
highly ramified. "Change" has been the watchword virtually ever
since the consent decrees were entered. See, e.g., Langton, 928
___ ____ _______
F.2d at 1209-10 & nn. 2-4 (describing certain changes in
pertinent legislation over time); id. at 1212-13 (describing
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13
substantial changes in facilities and conditions of confinement);
id. at 1213-16 (describing sweeping changes in treatment
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modalities, programs, and the like). After two decades of
intimate involvement with an especially complex public
institution immersed in a state of continuing transition, the
district court is still mired in litigation. We think that this
scenario at least arguably reflects an exceptional condition.
Hence, appointing a master to survey the legislative landscape,
investigate the incidence and impact of changed circumstances,
assess the current relevance of the decrees, and report the
results to the court did not constitute palpable error as a
matter of law. See, e.g., Chicago Housing Auth., 511 F.2d at 83-
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84 (refusing to annul district court's appointment of master in
analogous circumstances); see also NORML, 828 F.2d at 543-45
___ ____ _____
(explaining that complexity of litigation and of decree-
compliance can justify appointment of a master in institutional
reform litigation); Carey, 706 F.2d at 962-63 (similar).
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c.
c.
__
Petitioners next complain that some of the matters
referred to the master outstrip the four corners of the pleadings
in King. The short answer to this plaint is that the order's
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text does not bear it out. The slightly longer (but equally
availing) answer is that the litigation's procedural posture is
still fluid. The district court has before it a number of
complaints dealing with various aspects of life at the Treatment
Center. The order plainly indicates that the court proposes to
14
treat these cases as a group, at least for some (as yet
undefined) purposes. Class certification remains a seemingly
viable option. To the extent (if at all) that the court intends
the order of reference to extend beyond the sequestration-type
issues originally involved in King, we presume that the court
____
will travel an appropriate procedural path. See, e.g., Fed. R.
___ ____
Civ. P. 42(a) (discussing requirements for consolidation of
actions); Fed. R. Civ. P. 23 (discussing prerequisites to class
action and related matters); Fed. R. Civ. P. 24 (discussing
requirements for intervention). We see no reason, therefore,
given the confined office of a petition for mandamus, to stop the
court in its tracks.
d.
d.
__
Finally, petitioners claim that the district court
failed to provide them with notice before appointing the master.
They say, moreover, that this omission was exacerbated by an ex
__
parte contact with respondents' counsel (a contact which, as a
_____
byproduct, gave respondents advance warning of the judge's
mindset). We do not believe that, under the totality of the
circumstances, these facts warrant the issuance of a prerogative
writ.
While it seems logical for a trial court to consult
with affected parties when contemplating the appointment of a
master, the relevant procedural rule does not explicitly require
prior notice, see Fed. R. Civ. P. 53, and we are unprepared to
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state that advance consultation is absolutely essential in every
15
instance.8 Cf. Gary W. v. Louisiana, 601 F.2d 240, 244 (5th
___ ________ _________
Cir. 1979) (holding that a district court is not obliged to
convene an evidentiary hearing anent whether to appoint a
master). In this context, the purpose served by prior notice is
threefold: it permits parties to (1) argue for or against the
very idea of appointing a master, see, e.g., id. at 244-45, (2)
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offer their views on the scope of any reference, see, e.g.,
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Stauble, 977 F.2d at 694-96 (discussing scope considerations),
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and (3) voice their preferences as to the master's identity.
See, e.g., Morgan v. Kerrigan, 530 F.2d 401, 426-27 (1st Cir.),
___ ____ ______ ________
cert. denied, 426 U.S. 935 (1976). As we have already indicated,
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the reasons for appointing a master here are sensible and self-
evident; the scope of the reference is unremarkable; and, lastly,
the petitioners have neither expressed dissatisfaction with the
individual selected as the master nor proffered any person whom
they deem a more auspicious choice. In this unique situation,
the incidence of any error is problematic; and, at any rate, the
failure to provide notice seems benign.
The ex parte contact does not stem the tide. It
__ _____
appears that the judge, seeking to secure a commitment from the
Commonwealth to absorb the master's costs, directed a clerk to
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8Nonetheless, we agree with the Ninth Circuit that, when an
order of reference is entered sua sponte and without notice, a
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party who considers himself aggrieved thereby will be given
considerable latitude as to the form and timeliness of an ensuing
objection. See Burlington N. R.R. Co. v. Department of Revenue,
___ ______________________ _____________________
934 F.2d 1064, 1070-71 (9th Cir. 1991).
16
call the attorney general's department.9 We agree with the
petitioners that even this indirect inquiry should not have been
conducted ex parte. In our adversary system, both the
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administration of justice and the appearance of justice demand
that courts refrain, by and large, from communicating with one
party to the exclusion of the other(s). See, e.g., Meridian
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Int'l Logistics, Inc. v. United States, 939 F.2d 740, 745 (9th
______________________ ______________
Cir. 1991) (stating the familiar rule that ex parte contacts by
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the judge are not the norm); see also Model Code of Judicial
___ ____
Conduct, Canon 3B(7) (1990). Yet in this instance, the
communication was wholly innocuous and petitioners have been
unable to suggest how the judge's lapse was harmful. Because the
court's impetuosity was in no way prejudicial, issuance of a
prerogative writ would be tantamount to using a bazooka to slay a
gnat. We decline to engage in such judicial overkill. See
___
Grieco v. Meachum, 533 F.2d 713, 719 (1st Cir.) (applying
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harmless-error analysis where alleged ex parte contact caused no
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cognizable harm), cert. denied, 429 U.S. 858 (1976); United
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States v. DeLeo, 422 F.2d 487, 499 (1st Cir.) (same), cert.
______ _____ _____
denied, 397 U.S. 1037 (1970); see also Raytheon Co. v. Automated
______ ___ ____ ____________ _________
Business Sys., Inc., 882 F.2d 6, 8 n.2 (1st Cir. 1989) (similar;
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involving arbitrator's ex parte contact).
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B. Special Risk of Irreparable Harm.
B. Special Risk of Irreparable Harm.
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9Petitioners hint that the contact may have been more
sinister, but they offer no support for their suspicions. We
confine our evaluation, therefore, to the demonstrable facts of
record.
17
Although it may be unnecessary to do so given
petitioners' failure to show palpable error, we take this
occasion to remark that petitioners likewise flunk the first part
of the conventional mandamus test: they offer no satisfactory
reason to believe that they will suffer irremediable harm if the
writ does not issue. The order that petitioners challenge is
merely preliminary. The only thing that it accomplishes is the
appointment of a master to conduct certain studies, analyses, and
investigations, compile a report, and thereafter make
recommendations to the district judge. We decline petitioners'
invitation to speculate, at this early date, about the purely
hypothetical consequences that may or may not flow from these
operose labors.10 Accord Chicago Housing Auth., 511 F.2d at 83
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(rejecting similar challenge to similar order of reference).
Leaving rank speculation aside, we can detect no other
harm of a kind sufficient to ground mandamus relief. Certainly,
any increased workload that may result from the master's
involvement cannot turn the trick. We have consistently rejected
the general burdensomeness of litigation, standing alone, as
comprising a showing of harm sufficient to animate the power of
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10Petitioners' argument on this point is built entirely on
the fragile foundation of conjecture and surmise. By way of
illustration, they ruminate that, if the master makes findings
concerning, say, the ability of Treatment Center personnel to
function under the King decrees, the district court may give such
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findings overly great deference. We prefer, however, to deal
with the actuality of a developed situation rather than to
anticipate that a federal district court will lapse into manifest
error. Cf. W. Shakespeare, Macbeth, act I, sc. iii, ll. 133-34
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(1605) (suggesting that, frequently, "present fears are less than
horrible imaginings").
18
mandamus.11 See, e.g., Recticel, 859 F.2d at 1006 n.5; In re
___ ____ ________ _____
Justices, 695 F.2d at 20.
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IV. CONCLUSION
IV. CONCLUSION
We need go no further. Mandamus is an extraordinary
remedy which "should be dispensed sparingly and only in pursuance
of the most carefully written prescription, not made available
over the counter, on casual demand. It is not a substitute for
interlocutory appeal." Recticel, 859 F.2d at 1005. In its
________
present posture, this case does not warrant a dose of such strong
medicine. The record here is, for the most part, malady-free;
and any symptoms of arguable error, if later shown to have
blossomed into full blown diseases, are amenable to a traditional
cure on direct appeal.
The petition for mandamus is denied and dismissed.
The petition for mandamus is denied and dismissed.
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Costs to respondents.
Costs to respondents.
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11Petitioners argue that the Court's opinion in Mallard
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marked the dawning of a new era, calling our prior precedents
into serious question. We disagree. Mallard did not deal with
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the general burdensomeness of litigation at all; rather, the case
involved an attorney compelled by a court to provide professional
services against his will. See Mallard, 490 U.S. at 300.
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19