Margaret SPAULDING, Et Al., Plaintiffs-Appellants, v. UNIVERSITY OF WASHINGTON, Defendant-Appellee

676 F.2d 1232, 1982 U.S. App. LEXIS 20201, 28 Empl. Prac. Dec. (CCH) 32,683, 28 Fair Empl. Prac. Cas. (BNA) 995

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 13, 1982
• Docket: 80-3528
• Status: Published

Opinions

SNEED, Circuit Judge:

Appellants appeal the district court’s order requiring them to pay for preparation of a transcript of proceedings before a magistrate in a suit alleging, inter alia, violation of Title VII of the Civil Rights Act of 1964. Appellants contend that the transcript was necessary to enable them to obtain the review by the district court to which they are entitled.¹ We hold that under the facts present in this case the district court should have had a transcript prepared without cost to the parties. Having failed to receive a stay of the review proceedings before the district court, appellants in this case paid for preparation of the transcript and obtained de novo review by the district court. Appellants seek reimbursement of the cost to appellants of having the transcript prepared. Under the circumstances of this case we deny the relief sought.

I.

FACTUAL BACKGROUND

Members of the faculty of the University of Washington School of Nursing filed a class action alleging sex discrimination in employment in violation of Title VII, the Equal Pay Act, and 42 U.S.C. § 1983. The district court sua sponte referred the case to a United States magistrate sitting as a special master, pursuant to local Magistrate Rule MR5. This rule allows referral of Title VII cases without consent of the parties whenever the case cannot be scheduled for trial within 120 days, without regard to the usual requirement of Fed.R.Civ.P. 53(b) that referrals be made “only upon a showing that some exceptional condition requires it.” Local Rule MR5 is based on section 706(f)(5) of Title VII, 42 U.S.C. § 2000e-5(f)(5), which allows appointment of a master pursuant to Rule 53 when Title VII cases have not been scheduled for trial “within one hundred and twenty days after issue has been joined.” See 118 Cong.Rec. 7166, 7168 (1972).

The order of reference by the district court provided that it retained jurisdiction to review the magistrate’s report and enter final judgment and provided that “no transcript of evidence need be filed with the report of the special master unless one or more of the parties arranges for the preparation and filing thereof.”

After a 15-day trial, the magistrate issued a report recommending dismissal under Fed.R.Civ.P. 41(b). A trial transcript, not having been obtained by any of the parties, did not accompany the report. The plaintiffs thereafter filed an emergency motion requesting that the magistrate file a trial transcript so that the plaintiffs could obtain de novo district court review of the magistrate’s findings. The district court denied the motion, but certified the transcript issue for interlocutory appeal under 28 U.S.C. § 1292(b). This court granted permission to pursue the appeal.

II.

THE NECESSITY OF A TRANSCRIPT

It is settled law that the district court must undertake a proper review of the portion of a magistrate’s findings to which a party objects. To accomplish this, the court may hold its own hearing on the objected-to portion, calling witnesses as appropriate, or may review a tape recording or transcript of the relevant portion of the proceedings before the magistrate. 28 U.S.C. § 636(b)(1); U.S.Const. art. III; Moran v. Morris, 665 F.2d 900, 901-02 (9th Cir. 1981); McDonnell Douglas Corp. v. Commodore Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981); Coolidge v. Schooner California, 637 F.2d 1321, 1323, 1325-27 (9th Cir. 1981); cert. denied, 451 U.S. 1020, 101 S.Ct. 3011, 69 L.Ed.2d 392 (1981); Orand v. United States, 602 F.2d 207, 208-09 (9th Cir. 1979). See also Livas v. Teledyne Movible Offshore, Inc., 607 F.2d 118, 119 (5th Cir. 1979); Campbell v. United States District Court, 501 F.2d 196, 206-07 (9th Cir.), cert. denied, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1974).

It is, of course, within the district court’s discretion to choose which of these means will afford the parties adequate review. Furthermore, the parties may agree to limit the scope of the district court’s review or waive their right to review by use of these methods, recognizing that the scope of appellate review will be limited to issues subjected to proper review by the district court.

In this case, apparently the district court did not propose to hold a new hearing. No tape recording of the magistrate’s proceedings was made, and the parties did not waive their right to have the district court review a transcript. Therefore, we conclude that in order to perform the required review of the objected-to findings of the magistrate, the district judge in this case must have a copy of the transcript of the proceedings before the magistrate.

In Title VII cases, which are referred to magistrates under local rules similar to MR5, the transcript should be provided by the district court. Article III of the United States Constitution vests the judicial power of the United States in Article III courts. The use of a magistrate cannot diminish any existing right of parties to a determination by an Article III judge. Because Title VII cases, unlike most other cases, can be referred to magistrates for trial without the consent of the parties, pursuant to 42 U.S.C. § 2000e-5(f)(5), to impose the cost of the transcript on Title VII litigants as a condition to obtaining review by an Article III judge improperly deprives these litigants of their rightful access to such judges.

The primary goal of Title VII is to eliminate discrimination in employment. Congress has evidenced an intent to make it easier for Title VII plaintiffs to litigate claims by authorizing an award of attorney’s fees to prevailing Title VII plaintiffs. 42 U.S.C. § 2000e-5(k); New York Gaslight Club Inc. v. Carey, 447 U.S. 54, 63, 100 S.Ct. 2024, 2030, 64 L.Ed.2d 723 (1980). It would be inconsistent with this purpose to impose a unique financial burden on Title VII plaintiffs.

We conclude that in a Title VII case, where a transcript of proceedings before the magistrate is required, the transcript must be prepared by the district court at no expense to the parties.

Normally, objections to magistrate’s findings must be filed within relatively short periods of time. E.g., 28 U.S.C. § 636(b)(1) (10 days). This time may be insufficient for the preparation and review by the parties of a transcript or tape recording before the deadline for filing objections. Under these circumstances it is necessary to accommodate in an appropriate fashion the deadline for filing objections with the delay that frequently may attend the preparation of a transcript or tape recording.²

III.

REIMBURSEMENT DENIED

As already indicated, the appellants have obtained at their expense a transcript which has been employed by the district court. Presently, the only relief to which they can assert they are entitled is reimbursement of the cost of the transcript.

This relief, however, is not available. It would be inappropriate and unjust to impose it upon the University of Washington against whom the plaintiffs brought their suit. The University has not been found to have injured appellants. Perhaps before this litigation is concluded the University may be found liable, but at present no court has found it guilty of a Title VII offense.³ Its opposition to the appellants’ motion for a stay provides no basis to impose the transcript cost upon it. Should appellants ultimately prevail the University of Washington would be liable to reimburse this cost along with other costs and attorney’s fees. 42 U.S.C. § 2000e-5(k).

It also would be unjust to order reimbursement by the district court or court reporter. The court reporter, not the district court, received payment for the transcript that the appellants obtained. The district court was not unjustly enriched and the court reporter gave value for what he or she received. Had the district court ordered the transcript, as we have held it should have, the court reporter would have produced the transcript at no compensation beyond his or her salary. See 28 U.S.C. § 753(b) and (f); Texas City Tort Claims v. United States, 188 F.2d 900 (5th Cir. 1951). The failure of the district court to have done so was judicial error, but judicial error provides no basis for recovery against either the individual judge or the United States. See, e.g., Pierson v. Ray, 386 U.S. 547, 553-55, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967); Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347-51, 20 L.Ed. 646 (1872).

Reimbursement of transcript costs must await the outcome of the appellants’ suit.

REVERSED AS TO TRANSCRIPT RIGHT; AFFIRMED AS TO DENIAL OF REIMBURSEMENT.

1 . We express no opinion on whether under the circumstances of this case this review should be de novo or under the clearly erroneous standard as provided in Rule 53(e)(2), Fed. R. Civ. P. Our holding is not dependent upon which of these standards is proper.

2 . Although the court in this case granted an extension of time for filing objections, it would be appropriate for a district court to require parties to file initial objections before a transcript or tape recording can be prepared and reviewed. After objections have been filed, the court and the parties may be able to agree on some limitation on the form or extent of review. Where objections are filed before a transcript or tape recording is available, the district court ordinarily should delay its review of the magistrate’s findings until the parties have had a chance to review and comment on the transcript or tape recording, unless the parties agree otherwise. Such a procedure protects the parties’ right to review of the magistrate’s findings while presenting the opportunity for the court and parties to formulate the most effective and efficient form of review.

3 . Although the district court has made a decision adverse to the plaintiffs, an appeal from this decision has been taken.