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Fifth Circuit Vacates Referral to Special Master

Sierra Club v. Clifford, 257 F.3d 444 (5th Cir. 2001).

Yoshiyuki Takamatsu, 3L

In July, the United States Court of Appeals for the Fifth Circuit vacated a district court’s decision to refer an environmental lawsuit to a special master. The Sierra Club and Louisiana Environmental Action Network, Inc. (Sierra Club) brought an action challenging Louisiana’s and the Environmental Protection Agency’s (EPA) failure to comply with the Clean Water Act. The Act imposes on the EPA a duty to identify and establish total maximum daily loads (TMDLs) of pollutants for impaired waters. Before trial, the District Court for the Eastern District of Louisiana appointed a special master pursuant to Rule 53 of the Federal Rules of Civil Procedure.

A court may appoint a special master to assist it in specific judicial duties, such as difficult computation of damages or when some “exceptional condition” requires the reference. (See page 8 for details on special masters.) The district court cited its congested docket and unfamiliarity with the issues presented as necessitating the referral to the master. On appeal, the Fifth Circuit held that the decisions to refer were improper and vacated the final judgment, remanding the case for further proceedings.

Background
Under the Clean Water Act, states are required to identify, establish and submit to the EPA TMDLs of pollutants for states’ impaired waters.1 Louisiana had failed to comply with the Act for 13 years yet continued to receive federal funding for TMDL implementation. When the State finally submitted a TMDL, the EPA failed to either approve or disapprove the submission within the 30 day deadline imposed by the Act. The Sierra Club challenged the EPA’s failure to exercise its mandatory duty, in light of the State’s protracted inaction, to identify and establish such TMDLs and to establish a schedule by which TMDLs would be implemented. Faced with the parties’ summary judgment motions, the district court referred the motions to a special master pursuant to Rule 53(b) of the Federal Rules of Civil Procedure.2 The district court stated that the exceptional condition requirement was met because the case had been pending for two years, the filings were voluminous and contained highly technical documents and declarations, and the issues concerned compliance with complex state and federal regulations. The special master initially conducted two hearings and issued a report recommending that the district court order the EPA to file the administrative record and a schedule for establishing and implementing TMDLs in Louisiana.

The district court adopted the report as its opinion and, again, referred the case to the special master for review. According to the order, the EPA submitted the administrative record and a 12-year schedule to establish and implement TMDLs. The special master held a hearing and a one-week trial and issued a second report rejecting the EPA’s 12-year schedule and instead setting a 10-year schedule. The district court entered a judgment against the EPA essentially adopting the special master’s second report without conducting its own review. The EPA appealed and challenged, among other things, the district court’s decisions to refer the case to the special master. On appeal, the Fifth Circuit limited its discussion to the district court’s decisions to refer the case to a special master.

Appointment of Special Master and La Buy
A district court may appoint a special master to aid it in the performance of specific judicial duties, but a special master may not displace the court.3 Under Rule 53(b), reference to a special master shall be the exception and not the rule and shall be made only upon a showing that some exceptional condition requires it.4 In La Buy v. Howes Leather Co., the United States Supreme Court held that a congested docket, the complexity of issues, and the extensive amount of time required for a trial did not, either individually or as a whole, constitute an exceptional condition.5 In an earlier decision, the Fifth Circuit applied La Buy holding that a crowded docket and the plaintiff’s filing of sixteen different lawsuits in the same court did not constitute an exceptional condition.6
For the TMDL dispute, the Fifth Circuit found that the district court’s stated reasons did not support a conclusion that an exceptional condition existed: the fact that a case had been pending for two years was not so exceptional; the voluminous filings containing highly technical documents and declarations were considered the norm for modern federal litigation; and a significant number of cases in federal courts concern compliance with state and federal regulations. The Fifth Circuit noted that the district court’s unfamiliarity with the subject matter could hardly excuse the court’s obligation to carry out its judicial function. The Court noted that if the district court’s reasons were sufficient to constitute an exceptional condition under Rule 53(b), references to special masters would be the rule rather than the exception.

Second, the Fifth Circuit addressed the Sierra Club’s argument that the Court should only reverse the decision if it found that the special master’s decision was erroneous. The Court did not decide the issue but noted that absent the district court’s own findings and conclusions, it could not perform a meaningful review of the judgment, especially because the case involved complex factual and legal issues.

Finally, the Fifth Circuit rejected the Sierra Club’s contention that cases evaluating massive, long-term government programs were particularly suited for the appointment of a special master. While agreeing with the contention, the Court found that whether or not references were valid must always turn on their compliance with Rule 53(b).

Conclusion
Recognizing that this decision will add to the delay and expense already suffered by the Sierra Club and the citizens of Louisiana, the Fifth Circuit vacated the orders to refer the case to the special master, the orders adopting the special master’s recommendations, and the final judgment. The case was remanded to the district court to make its own determinations.

ENDNOTES
1. 33 U.S.C. § 1313(d) (2001).
2. Summary judgment is a procedural device available for prompt and expeditious disposition of controversy without trial when there is no genuine issue of material fact. Black’s Law Dictionary, 1449 (7th ed. 1999).
3. La Buy v. Howes Leather Co., 352 U.S. 249, 256 (1957).
4. Fed. R. Civ. P. 53(b).
5. 352 U.S. at 258-59.
6. Piper v. Hauck, 532 F.2d 1016, 1019 (5th Cir. 1976).

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