Should the Federal rules of bankruptcy procedure be amended to expressly authorize United States district and bankruptcy courts to appoint a special master in an appropriate...

University of Memphis Law Review, The, Winter 2001 by Clift, R Spencer III

The role of the special master in non-bankruptcy civil matters is focused, inter alia, on discovery and difficult accounting issues in extremely complex cases. Other tasks include, for example, mediating between and among parties, making highly specialized reports and recommendations, evaluating scientific information, conducting and managing discovery, and guiding consensual settlement negotiations.10 Special masters enter the litigation process (1) after the parties consent to such an appointment, (2) by virtue of the inherent authority of the court, or (3) by virtue of Federal Rule of Civil Procedure 53(b).11

II. POWERS OF APPOINTMENT OF SPECIAL MASTERS

A. Inherent Authority of the Court to Appoint Special Masters

For many years, United States district judges have possessed the inherent authority to appoint special masters, especially in matters where neutral third party expertise would aid the disposition of a civil action.12 This point was manifested even before the promulgation of the Federal Rules of Civil Procedure in 1938. The inherent power of the court is noted in In re Peterson13 as follows:

Courts have (at least in the absence of legislation to the contrary) inherent power to provide themselves with appropriate instruments required for the performance of their duties. This power includes authority to appoint persons unconnected with the court ... such as special masters, auditors, examiners and commissioners... with or without the consent of the parties, to simplify and clarify issues and to make tentative findings.14

In the event a district court chooses not to exercise its inherent authority and appoint a special master, it may appoint a special master pursuant to the authority set forth in Federal Rule of Civil Procedure 53.

B. The Power of the Court to Appoint Special Masters Pursuant to Federal Rule of Civil Procedure 53

Rule 53 of the Federal Rules of Civil Procedure provides separate guidelines in non-bankruptcy civil matters, depending upon whether the district court action is a jury or non-jury case.15 Special masters are authorized in jury cases only when the issues are especially complicated.16 In non-jury cases in the district court, special masters are authorized for appointment only when, for example, the issues involve very difficult accountings, multi-variable damage computations, or other "exceptional conditions."17 Additionally, it is noted that special masters play a vital role in modern, nonbankruptcy civil litigation by implementing remedial decrees.18 Remedial decrees (e.g., court decisions ordering the expedited desegregation of public facilities) manifest the skill and talent special masters contribute in complex civil actions.19 Bankruptcy courts, like district courts adjudicating non-jury civil actions, would have to find "exceptional circumstances" in order to appoint a special master in a case or proceeding. A thorough discussion and explanation of the "exceptional circumstances" requirement is necessary.

C. The Exceptional Circumstances Requirement