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YASCAVAGE v. WEINBERGER

May 15, 1974

Victoria YASCAVAGE, obo Nicholas Yascavage, Plaintiff,
v.
Caspar WEINBERGER, Secretary of Health, Education and Welfare, Defendant


Sheridan, Chief Judge.


The opinion of the court was delivered by: SHERIDAN

This is an action to review the final decision of the Secretary of Health, Education and Welfare denying the plaintiff's claim as a widow of a miner for "black lung" benefits pursuant to §§ 411(a) and 412(a)(2) of the Federal Coal Mine Health and Safety Act of 1969, as amended. 30 U.S.C.A. §§ 921(a) and 922(a)(2). The Secretary filed a motion for summary judgment and the court entered an order referring the action to the full-time magistrate for this district for report and recommendations on the Secretary's motion. The Secretary then filed a motion requesting the court to vacate the order referring the action to the magistrate, and this motion to vacate is now before the court.

 The grounds for defendant's motion to vacate are that (1) the referral of this action to the magistrate is beyond the jurisdiction of the court because such referral violates Rule 53(b) of the Federal Rules of Civil Procedure, *fn1" and exceeds the authority granted by the Federal Magistrates Act, 28 U.S.C.A. §§ 631-639; (2) the referral may violate the Constitution of the United States; and (3) the referral interjects an extra level of review into the judicial review process, thereby placing an added burden upon the litigants.

 In his brief, defendant "submits" that the duties assigned to the magistrate in this case are those customarily assigned to a special master pursuant to Rule 53. In advancing this contention, defendant relies heavily on Ingram v. Richardson, 6 Cir. 1972, 471 F.2d 1268. With all due respect, this court disagrees with the decision in Ingram.

 Ingram was a Social Security case referred to a United States Magistrate who, in a report and recommended decision, apparently made findings of fact and conclusions of law, and recommended that summary judgment be entered in favor of defendant. The district court denied objections to the report and "adopted the Magistrate's findings of fact and conclusions of law, and entered summary judgment in favor of the defendant." The court of appeals reversed. The court of appeals viewed the reference of the case to the magistrate as a reference under 28 U.S.C.A. § 636(b)(1), which provides that the additional duties a magistrate may perform include service as a master in appropriate civil actions, pursuant to the Federal Rules of Civil Procedure. The court of appeals held that references to a master under Rule 53(b), Fed.R.Civ.P., are to be the exception and not the rule, and finding no exceptional circumstances, held that the reference of Social Security cases to the magistrate as of course was error. *fn2"

 The holding that the case was, and apparently could only be, referred to the magistrate pursuant to § 636(b)(1), appears to be an unduly restrictive interpretation of § 636. Section 636(b) provides that a magistrate may be assigned such additional duties "as are not inconsistent with the Constitution and the laws of the United States . . . [which] may include, but are not restricted to " certain enumerated duties in three categories, including service as a special master:

 
"§ 636. Jurisdiction, powers, and temporary assignment.
 
. . .
 
"(b) Any district court of the United States, by the concurrence of a majority of all the judges of such district court, may establish rules pursuant to which any full-time United States magistrate, . . . may be assigned within the territorial jurisdiction of such court such additional duties as are not inconsistent with the Constitution and laws of the United States. The additional duties authorized by rule may include, but are not restricted to --
 
"(1) service as a special master in an appropriate civil action, pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts;
 
"(2) assistance to a district judge in the conduct of pretrial or discovery proceedings in civil or criminal actions; and
 
"(3) preliminary review of applications for post-trial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing."

 Service as a master may involve all incidents of a non-jury trial, including the reception of documentary evidence and the taking of testimony where credibility based on demeanor of the witness may be important. The master may also rule on the ...


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