Petition For Writ Of Mandamus.
Swygert, Chief Judge, Fairchild and Tone, Circuit Judges. Swygert, Chief Judge, dissenting in part.
FAIRCHILD, Circuit Judge.
This petition for writ of mandamus is another episode in the Gautreaux litigation concerning the location of public housing in the Chicago area.*fn1 Petitioner Chicago Housing Authority seeks mandamus to vacate an order of reference entered by Judge Austin November 7, 1974 in Gautreaux v. Chicago Housing Authority, et al., 384 F. Supp. 37 (N.D.Ill. 1974). After a preface indicating lack of progress in supplying public housing in Chicago, the order provides, in part, as follows:
"The Master is directed to study and review segregation in Chicago public housing, to determine and identify the precise causes of the five-year delay in implementing my judgment orders, and to recommend a plan of action that will expedite the realization of my various orders and judgments. In so doing, the Master shall not be limited to determining whether HUD and CHA have employed their 'best efforts,' but shall examine all possibilities to expedite the mandate of this Court that the supply of dwelling units in Chicago shall be increased as rapidly as possible, including, without limitation, utilization of new housing programs established by the Housing and Community Development Act of 1974."
Other provisions of the order dealt with procedure before the Master, and in the formulation of the Report.
On February 10, 1969, Judge Austin filed a memorandum opinion finding there had been discrimination on the basis of race in public housing site selection in Chicago. 296 F. Supp. 907. On July 1, 1969, judgment was entered ordering, among other things, that CHA use its best efforts to increase the supply of dwelling units in conformity with the judgment (304 F. Supp. 736, 741) and ultimately HUD was similarly enjoined.
On September 11, 1974 plaintiffs filed a motion for an order requiring CHA and its codefendant, HUD, to recommend how enforcement of the July, 1969 judgment order could be facilitated. This motion was apparently abandoned, and on September 30, plaintiffs filed a motion seeking the appointment of a commissioner to formulate plans for the expeditious construction of new public housing in the City of Chicago. While declining to appoint the requested commissioner, Judge Austin made the order of reference.
CHA argues that mandamus should issue because Judge Austin's order of reference constituted an abdication of judicial decision making responsibility contrary to the teachings of La Buy v. Howes Leather Co., 352 U.S. 249, 1 L. Ed. 2d 290, 77 S. Ct. 309, reh. denied, 352 U.S. 1019, 77 S. Ct. 553, 1 L. Ed. 2d 560 (1957) and TPO, Incorporated v. McMillen, 460 F.2d 348 (7th Cir. 1972).
If we understand CHA's apprehension, it is that the Master might make findings on issues of fact which would be prejudicial to CHA and would become binding unless clearly erroneous. On the other hand, no such issues have been framed by pleadings or otherwise. It can well be argued that the proceeding before the Master is limited to preliminary inquiry and the result to recommendations as to steps the court itself might consider initiating.
The district court appears to be seeking assistance in exploration of possible alternative courses in a difficult area. The memorandum which was a preface to the order stated that "this matter must be referred to a Master for immediate attention and proposals." The order, in terms, does not require the Master to make findings of fact and conclusions of law (See Rule 53(e)(1), F.R.Civ.P.) and refers to the Master's draft report, to be discussed with the parties, as "a final draft of his recommendations and comments." The order says that the "final Report, as determined by the Master, shall be submitted to the Court for its review and possible use." In colloquy, Judge Austin said, "I think my order indicates I retained the ultimate responsibility."
A "party seeking mandamus has 'the burden of showing that its right to issuance of the writ is "clear and indisputable."'" Will v. United States, 389 U.S. 90, 96, 19 L. Ed. 2d 305, 88 S. Ct. 269 (1967). Mandamus "should be resorted to only where appeal is a clearly inadequate remedy." Ex Parte Fahey, 332 U.S. 258, 260, 91 L. Ed. 2041, 67 S. Ct. 1558 (1947).
As already indicated, it seems wholly unlikely that the reference under challenge here contemplated or will result in determinations by the Master which will bind and prejudice the rights of CHA. Should CHA ultimately conclude that it can demonstrate error and resulting prejudice, appeal will be an adequate remedy.
We do not decide the question of the propriety of the order of reference, but we do consider mandamus ...