
USCA1 Opinion

	




          March 16, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 92-2158                            IN RE DONALD PEARSON, ET AL.,                                     Petitioners.                              _________________________                           ON PETITION FOR WRIT OF MANDAMUS                        FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                              _________________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Aldrich, Senior Circuit Judge,                                     ____________________                                         and Selya, Circuit Judge.                                         _____________                              _________________________               David  R. Geiger,  with whom  Joseph D. Halpern,  Michele A.               ________________              _________________   __________          Whitham,  Sarah Burgess  Reed, and  Foley, Hoag  & Eliot  were on          _______   ___________________       ____________________          brief, for petitioners.               William  L. Pardee,  Assistant Attorney  General,  with whom               __________________          Scott  Harshbarger,   Attorney   General,  was   on  brief,   for          __________________          respondents.                              _________________________                                    March 16, 1993                              _________________________                    SELYA,  Circuit  Judge.   Petitioners  seek  a writ  of                    SELYA,  Circuit  Judge.                            ______________          mandamus  which,  if  granted,  will halt  the  district  court's          nascent efforts to probe the continuing need for, or the possible          modification  of, consent  decrees affecting  the operation  of a          state   institution,  the  Massachusetts   Treatment  Center  for          Sexually Dangerous  Persons  (the  Treatment  Center).    Because          petitioners   cannot   satisfy  the   strict   prerequisites  for          extraordinary relief by way of mandamus, we dismiss the petition.          I.  BACKGROUND          I.  BACKGROUND                    The United  States District  Court for the  District of          Massachusetts  has been  involved with  the Treatment  Center for          more  than two decades.   In 1974,  the district court  entered a          consent decree  and supplemental  consent decree  in the case  of          King  v. Greenblatt.1   The decrees  placed the  Treatment Center          ____     __________          under the  primary authority  of the Massachusetts  Department of          Mental  Health  and  obligated  the  department  to  operate  the          facility  in accordance  with  certain standards.   The  district          court specifically retained  the right to amend  the King decrees                                                               ____          in the future.                    Although  the original  plaintiff, King, soon  left the          Treatment  Center, other  residents  took up  the cudgels.   Over          time,  inmates brought a variety of suits to enforce the decrees.                                        ____________________               1King, an  individual  confined  at  the  Treatment  Center,          brought  suit,  inter  alia,  to   reform  certain  institutional                          _____  ____          policies and  practices.  Relevant  portions of the  original and          supplemental consent decrees are  set forth as appendices  in two          earlier decisions  of this court.  See  Pearson v. Fair, 935 F.2d                                             ___  _______    ____          401,  416-19 (1st Cir. 1991); Langton v. Johnston, 928 F.2d 1206,                                        _______    ________          1227-28 (1st Cir. 1991).                                          2          The  stream of  litigation occasionally  overflowed the  district          court.   See, e.g., Pearson v. Fair, 935 F.2d 401 (1st Cir. 1991)                   ___  ____  _______    ____          (Pearson II); Langton v. Johnston, 928 F.2d 1206 (1st Cir. 1991);           __________   _______    ________          Pearson  v. Fair,  808  F.2d 163  (1st  Cir. 1986)  (per  curiam)          _______     ____          (Pearson  I).    The  petitioners, all  of  whom  were originally           __________          inmates of  the Treatment Center  and at least one  of whom still          resides there,  have been at the eye of the  storm.  In the early          1980s,  they brought an action  to enforce the  King decrees, see                                                          ____          ___          Pearson  I,  808  F.2d  at 165,  and  subsequently  survived  the          __________          Commonwealth's challenge to their alleged lack of standing.   See                                                                        ___          Pearson  II,  935  F.2d at  404  n.4.    Moreover,  in 1988,  the          ___________          petitioners intervened  in  the  King  case and  fended  off  the                                           ____          Commonwealth's motion to vacate the judgment therein.                    The continuing  saga of the federal courts' involvement          with  the Treatment  Center  took a  new  turn in  1992  when the          district  court,  acting  on   its  own  initiative  and  without          providing advance  notice, appointed a special  master to analyze          "the impact  of existing and  pending legislation on  the consent          decrees" and on "the operation of the Treatment Center"; to study          all unresolved claims alleging violations of the consent decrees;          and  to  advise  the  court  concerning  the  Treatment  Center's          operation and the continued viability of the King decrees.2                                                       ____                    The petitioners  learned of  this initiative  after the          fact.  They  did not take kindly to it.   When the district court                                        ____________________               2The district  court's order is reproduced  in the appendix.          We omit therefrom the master's curriculum vitae.                                          3          refused to alter its stance, the petitioners headed for the court          of appeals.  In this forum, they ask for mandamus, asserting that          the  lower court lacked jurisdiction to  appoint a master because          King was dead,  juridically if not literally, and because neither          ____          side was currently seeking,  or had recently sought, modification          of the  King decrees.   Petitioners also assert  a host  of other                  ____          challenges to the entry of the order and to its scope.          II.  THE USES OF MANDAMUS          II.  THE USES OF MANDAMUS                    Congress  has authorized  the federal  courts to  issue          prerogative writs  which are "necessary or appropriate  in aid of          their respective jurisdictions."  28 U.S.C.   1651(a) (1988).  As          the Court recently reminded us, a traditional use  of prerogative          writs  has been to confine inferior courts to the lawful exercise          of their prescribed jurisdiction or compel them to exercise their          authority  when duty demands.  See Mallard v. United States Dist.                                         ___ _______    ___________________          Court, 490 U.S. 296, 308 (1989) (quoting Roche v. Evaporated Milk          _____                                    _____    _______________          Ass'n,  319 U.S.  21,  26  (1943)).    This  use  is  customarily          _____          accomplished by means of mandamus  or prohibition (terms which we          employ  interchangeably in  this opinion).   Such writs  afford a          mechanism for immediate correction of acts or omissions amounting          to an "usurpation of power."   De Beers Consolid. Mines, Ltd.  v.                                         ______________________________          United States, 325 U.S. 212, 217 (1945).          _____________                    Prerogative writs  are drastic remedies which  have the          potential, if overexercised,  "to spawn piecemeal litigation  and          disrupt  the orderly  processes of  the justice  system."   In re                                                                      _____          Recticel  Foam Corp., 859 F.2d 1000, 1005 (1st Cir. 1988).  Thus,          ____________________                                          4          mandamus  must  be  used  sparingly  and  only  in  extraordinary          situations.   See Allied Chem.  Corp. v. Daiflon,  Inc., 449 U.S.                        ___ ___________________    ______________          33, 34 (1980) (per curiam);  Will v. United States, 389 U.S.  90,                                       ____    _____________          107 (1967); In re Insurers Syndicate, 864 F.2d 208, 211 (1st Cir.                      ________________________          1988); see  also Boreri v. Fiat S.p.A., 763 F.2d 17, 26 (1st Cir.                 ___  ____ ______    ___________          1985) (warning that the  writ's "currency is not profligately  to          be spent").                    To  ensure   that  the  writ's  use   is  appropriately          rationed,  we have,  for the  most part,3  insisted that  a writ-          seeker  limn "some  special risk  of irreparable  harm," together          with "clear entitlement to the  relief requested."  Recticel, 859                                                              ________          F.2d at 1005;  accord In re Bushkin Assocs.,  Inc., 864 F.2d 241,                         ______ ____________________________          243  (1st Cir.  1989); In  re Justices  of the  Supreme  Court of                                 __________________________________________          Puerto  Rico, 695 F.2d  17, 20 (1st  Cir. 1982).4   On the former          ____________          prong, the petitioner "must ordinarily demonstrate that something                                        ____________________               3We qualify our statement because there are infrequent cases          in which the usual requirements may be relaxed.  See, e.g., In re                                                           ___  ____  _____          Justices  of the  Supreme Court of  Puerto Rico, 695  F.2d 17, 25          _______________________________________________          (1st Cir. 1982); see  also In re Ellsberg,  446 F.2d 954,  956-57                           ___  ____ ______________          (1st Cir. 1971).   Such cases invariably involve issues  of great          public  import,  justifying resort  to  advisory  mandamus.   See                                                                        ___          generally Recticel,  859 F.2d  at 1005  n.4 (describing  types of          _________ ________          cases  in  which  advisory  mandamus  may   be  suitable).    The          petitioners  do not  suggest,  and we  cannot conclude,  that the          matters implicated here fall into that category.               4In  one  sense,  the  "clear  entitlement"  language  is  a          misnomer.   It  seems more  accurate to  say that  a petitioner's          entitlement  to the writ depends on a two-tiered showing that the          district court's order (a) presents a special risk of significant          irreparable harm  and (b) is palpably  erroneous.  See La  Buy v.                                                             ___ _______          Howes  Leather Co., 352 U.S. 249, 256  (1957).  We use the phrase          __________________          "palpably erroneous" to signify a situation in which  the claimed          vice  is plain  as  a matter  of  law and  is  also substantially          prejudicial as a matter of fact.                                          5          about the order, or its circumstances, would make an  end-of-case          appeal ineffectual or leave legitimate interests unduly at risk."          Recticel, 859  F.2d at 1005-06;  accord United States  v. Sorren,          ________                         ______ _____________     ______          605 F.2d  1211, 1215 (1st Cir.  1979).  On the  latter prong, the          petitioner  must usually  establish  a "clear  and  indisputable"          right  to  the  requested relief,  Bankers  Life  &  Cas. Co.  v.                                             __________________________          Holland,  346  U.S. 379,  384  (1953) (quoting  United  States v.          _______                                         ______________          Duell, 172  U.S. 576, 582 (1899)),  or, in other words,  that the          _____          challenged order is palpably erroneous.  See supra note 4.   This                                                   ___ _____          dichotomous    standard    is    sufficiently   stringent    that          "[i]nterlocutory  procedural orders  .  . .  rarely will  satisfy          th[e]  precondition for mandamus relief."   Recticel, 859 F.2d at                                                      ________          1006.  Nonetheless,  a district court's  appointment of a  master          may be  so far afield, and the potential for mischief so great in          a particular  situation, that immediate relief by way of mandamus          is  warranted.  See, e.g., La Buy  v. Howes Leather Co., 352 U.S.                          ___  ____  ______     _________________          249, 256 (1957); National  Org. for the Reform of  Marijuana Laws                           ________________________________________________          (NORML) v. Mullen, 828 F.2d 536, 541-42 (9th Cir. 1987).          _______    ______          III. DISCUSSION          III. DISCUSSION                    Because  petitioners'   variegated  challenges  reflect          neither a  special risk of  significant harm  nor palpable  error          attributable to the judge's  interlocutory order, mandamus is not          justified.   For ease in presentation, we discuss these points in          reverse order.                           A.  Presence of Palpable Error.                           A.  Presence of Palpable Error.                               __________________________                    The  petitioners have  failed  to demonstrate  that the                                          6          district court lapsed into palpable error or, stated another way,          that  they  are clearly  entitled to  the  relief requested.   To          explain why  this is so,  we deal  extensively with  petitioners'          main "case or controversy" approach and then consider their other          asseverations in a group.                    1.  The Case  or Controversy Requirement.   Petitioners                    1.  The Case  or Controversy Requirement.                        ____________________________________          strive  to convince  us  that, at  the  time the  district  court          appointed the master, no justiciable case or controversy existed;          and that,  therefore, the  court's order plainly  outstripped its          jurisdiction.  Petitioners' exhortation has two strands.  We find          neither strand persuasive.                                         a.                                          a.                                         __                    The  first strand might be subtitled:  "On the Death of          King."  Petitioners suggest that King was a "dead case" which the          ____                             ____          district  court improperly  resurrected.    Whatever this  morbid          metaphor may  mean, it misses the  mark.  The entry  of a consent          decree does not  "kill" a  case or terminate  a district  court's          jurisdiction.    Rather,  when,  as now,  an  injunction  entered          pursuant  to a  consent decree has  ongoing effects,  the issuing          court retains authority to  enforce it.  See, e.g.,  System Fed'n                                                   ___  ____   ____________          No. 91, Etc. v. Wright, 364 U.S. 642, 647 (1961) (explaining that          ____________    ______          structural injunctions "often require[] continuing supervision by          the  issuing court and  always a continuing  willingness to apply          its  powers and  processes on  behalf of  the party  who obtained          th[e] equitable relief").   By  the same token,  a court  retains          authority to modify or interpret such decrees in light of changed                                          7          circumstances.   See, e.g., id. at 646-47; United States v. Swift                           ___  ____  ___            _____________    _____          &  Co., 286 U.S. 106, 114-15 (1932).  This authority is part of a          ______          court's  inherent  powers  and  exists regardless  of  whether  a          particular  consent decree  expressly so  provides.5   See Swift,                                                                 ___ _____          286 U.S. at 114; see also Fed. R. Civ. P. 60(b)(5)-(6).                           ___ ____                    Since a  district court has  power to modify  a consent          decree, it  is impossible to say  that the court  below acted "in          clear excess"  of its power, In  re Justices, 695 F.2d  at 21, in                                       _______________          taking the much  more tentative  step of appointing  a master  to          investigate the possibility of modifying the decree.  See Chicago                                                                ___ _______          Housing Auth. v. Austin, 511 F.2d 82, 83 (7th Cir. 1975) (raising          _____________    ______          no question  as to  jurisdiction in such  a context).   In  other          words, nothing  about the  lower court's  raising of a  moistened          finger to test the winds implicated jurisdictional concerns.                    To  be sure,  petitioners place  great emphasis  on the          fact that the original plaintiff, King himself, no longer resides          at  the Treatment Center.  Because  of this fact, and because the          King  case was  never certified  as a  class action,  petitioners          ____          categorize the case as defunct.   We believe this taxonomy is too          simplistic.   In the first place,  the King case is  not dead; it                                                 ____          is,  at worst,  moribund.   Even that  description may  be overly          pessimistic; petitioners  themselves became parties in  King five                                                                  ____          years  ago  (when  the  district court  granted  their  motion to          intervene), and their status  as parties has not been  altered by                                        ____________________               5Here, of course, the district judge explicitly reserved the          power to amend.  See Pearson I, 808 F.2d at 165.                           ___ _________                                          8          any subsequent order.  In the second place, the King decrees have                                                          ____          ongoing  effects  and other  inmates  continue  to bring  actions          seeking  their enforcement.   The  district court  obviously gave          weight  to this reality, noting the "many cases filed by patients          at  the  Treatment Center."   Moreover,  in  opting to  appoint a          master,  the  court made  specific  reference to  contemporaneous          allegations  about institutional failings gathered by forty-eight          Treatment  Center residents  desirous  of  improving their  lot.6          All things  considered, we find the tales  of King's demise to be                                                        ____          greatly exaggerated.                                          b.                                          b.                                          __                    The  second, more  substantial,  salvo of  petitioners'          jurisdictional  assault bombards the spontaneous character of the          district  court's action.   This  fusillade also  goes awry.   We          believe that  a district court's jurisdiction to modify a consent          decree necessarily implies that  the court does not act  in clear          excess of its authority when it appoints a master, sua sponte, to                                                             ___ ______          look into possible decree-modifying changes.  We explain briefly.                    A consent decree is not simply a contract entered  into          between private parties seeking to effectuate parochial concerns.          See  Firefighters v. Cleveland, 478 U.S.  501, 519 (1986); United          ___  ____________    _________                             ______                                        ____________________               6Although these grievances were contained in a letter to the          judge, rather  than in a lawsuit,  petitioners apparently concede          that  the district  court possessed the  authority to  docket the          letter as a  pro se complaint.  We agree.   See Haines v. Kerner,                       ___ __                         ___ ______    ______          404  U.S. 519,  520 (1972)  (per curiam);  Soto v.  United States                                                     ____     _____________          Postal  Serv., 905 F.2d 537,  539 (1st Cir.  1990), cert. denied,          _____________                                       _____ ______          111 S. Ct. 679 (1991); McCall-Bey v. Franzen, 777 F.2d 1178, 1190                                 __________    _______          (7th Cir. 1985); Gale v. United States Dep't of Justice, 628 F.2d                           ____    ______________________________          224, 226-27 (D.C. Cir. 1980).                                          9          States  v. ITT  Continental Baking  Co., 420  U.S. 223,  236 n.10          ______     ____________________________          (1975).  The court  stands behind the decree, ready  to interpret          and   enforce   its  provisions.      This   ongoing  supervisory          responsibility carries with it a certain  correlative discretion.          See  Wright, 364  U.S. at  648.   Unlike petitioners,  we do  not          ___  ______          envision a  vast jurisdictional limbo  in which courts  forced to          exercise their equity powers remain powerless to question whether          what they  have  been doing  "has  been turned  through  changing          circumstances into an instrument  of wrong."  Swift, 286  U.S. at                                                        _____          115.    Put  bluntly,  "parties  cannot,  by  giving  each  other          consideration,  purchase  from a  court  of  equity a  continuing          injunction."  Wright, 364 U.S. at 651.                        ______                    This is especially so  when, as in the instant  case, a          consent decree calls for judicial supervision of a government-run          facility.   In so ramified a setting, a court's decrees implicate          the citizenry's interests  as well  as those of  the parties  and          bear directly on the salubrious operation of public institutions.          See  Heath v.  De Courcy,  888 F.2d  1105,  1109 (6th  Cir. 1989)          ___  _____     _________          (acknowledging  that  such  decrees  "reach  beyond  the  parties          involved  directly  in  the  suit"); New  York  State  Ass'n  for                                               ____________________________          Retarded Children, Inc.  v. Carey,  706 F.2d 956,  969 (2d  Cir.)          _______________________     _____          (deeming  it  "well  recognized   that  in  institutional  reform          litigation . . . judicially-imposed remedies must be open to .  .          .  accommodation of  a wider  constellation of interests  than is          represented in the adversarial  setting of the courtroom"), cert.                                                                      _____          denied, 464 U.S. 915 (1983).  In institutional reform litigation,          ______                                          10          injunctions should not operate inviolate in perpetuity.  See Rufo                                                                   ___ ____          v. Inmates of  the Suffolk  County Jail, 112  S. Ct. 748,  762-65             ____________________________________          (1992); Board of Educ. v. Dowell, 111 S. Ct. 630, 637 (1991); see                  ______________    ______                              ___          also Milk Wagon  Drivers Union v.  Meadowmoor Dairies, Inc.,  312          ____ _________________________     ________________________          U.S.  287,  298-99 (1941)  (explaining  that  continuation of  an          injunction is justified only by continuation of the circumstances          which  induced  it).   This must  mean that,  notwithstanding the          parties'  silence or inertia, the district court is not doomed to          some Sisyphean  fate, bound  forever to  enforce and  interpret a          preexisting  decree  without  occasionally  pausing  to  question          whether  changing   circumstances   have  rendered   the   decree          unnecessary, outmoded, or even harmful to the public interest.                    Against this  backdrop, the  fact that the  court acted          sua sponte is not  fatal.  After all,  Fed. R. Civ. P. 53,  which          ___ ______          governs the appointment of masters, does not necessitate a motion          as a condition  precedent to  judicial action.   Taking our  lead          from  the rule  itself,  we hold  that  a district  court is  not          jurisdictionally disabled  from acting  on its own  initiative in          appointing a master to  ascertain the need for alteration  of its          ongoing  activities under a consent  decree.7  Cf.,  e.g., INS v.                                                         ___   ____  ___                                        ____________________               7In  its present posture, this case does not require that we          decide whether, or when,  a district court may actually  modify a          consent  decree sua  sponte.    See  Hook  v.  Arizona  Dep't  of                          ___  ______     ___  ____      __________________          Corrections, 972 F.2d 1012, 1016 (9th Cir. 1992) (stating that no          ___________          justiciable controversy exists where a court proceeds to revise a          consent decree although neither  party had moved for modification          as required by  Fed. R. Civ. P. 60(b)); Cook  v. Birmingham News,                                                  ____     _______________          618 F.2d 1149, 1152 (5th  Cir. 1980) (similar).  The court  below          has  been  circumspect,  appointing  a master  only  for  limited          investigatory and  advisory purposes.  Moreover,  some parties to          the  litigation, most notably the  defendants (who have agreed to                                          11          Chadha,  462  U.S. 919,  939-40  (1983) (explaining  that,  to be          ______          constitutionally sufficient, a case  or controversy need not stem          exclusively from  the adversarial positions of  the litigants but          may  stem from the real-world effect of a court's actions); Gomes                                                                      _____          v.  Moran, 605  F.2d  27,  30 (1st  Cir.  1979)  (holding that  a              _____          district court did not exceed its powers when it  refused to bind          defendants  to an  "incorrect"  decree despite  their failure  to          request a modification).                    2. Petitioners' Other Arguments.   None of petitioners'                    2. Petitioners' Other Arguments.                       ____________________________          remaining  asseverations reveals error of  a kind or  to a degree          required  to  justify a  writ of  mandamus.   We deal  in summary          fashion  with  certain  of  these  asseverations,  dismissing the          remainder without comment.                                          a.                                          a.                                          __                    Citing  La Buy,  352 U.S.  at 256,  petitioners contend                            ______          that the order  of reference  constitutes an  "abdication of  the          judicial  function"  to a  non-Article  III  adjudicator.   Here,          however, unlike in La Buy or in Stauble v. Warrob, Inc., 977 F.2d                             ______       _______    ____________          690 (1st Cir. 1992) (where the district court referred the entire          case to a  master for trial  and adjudication), we  think it  far          from clear  that the master's mission,  as presently constituted,                                        ____________________          defray the master's  fees for the time being  and who have argued          in this court against the issuance of a prerogative writ), are in          agreement with the decision.  Hence, we cannot say, on the record          as  it currently  stands,  that the  district  court's action  is          tantamount to  a gratuitous modification of  the consent decrees.          Cf.  Thompson v.  Enomoto, 815  F.2d 1323,  1327 (9th  Cir. 1987)          ___  ________     _______          (ruling  that the  appointment  of a  special  master is  not  an          immediately appealable modification of a decree).                                          12          extends  beyond permissible bounds.  All that can be gleaned from          the record before us is that the district court seeks information          about the efficacy of an  ongoing injunction.  On its face,  this          seems a concinnous use of a master.  See Stauble, 977 F.2d at 695                                               ___ _______          (discussing  use of  masters  in connection  with "remedy-related          issues"); Chicago Housing Auth.,  811 F.2d at 83-84 (refusing  to                    _____________________          annul  appointment  of  master in  analogous  circumstances); see                                                                        ___          generally  Vincent Nathan,  The Use  of Masters  in Institutional          _________                   _____________________________________          Reform Litigation, 10  U. Tol. L.  Rev. 419, 443-44 (1979).   The          _________________          order's scope, as the judge has delineated it, seems more akin to          rendering  "mere assistance" to the court, a permissible use of a          master in many sets  of circumstances, Stauble, 977 F.2d  at 695,                                                 _______          than  to abdicating adjudication of "fundamental question[s]," an          impermissible use  under any non-consensual set of circumstances.          Id.          ___                                          b.                                          b.                                          __                    It is  also argued  that the court's  designation of  a          master should be obliterated because Rule 53's core requirement            the  bedrock concept  that references are  reserved for  the rare          cases which present "some exceptional condition," Fed. R. Civ. P.          53(b)   is completely unfulfilled.  We disagree.                    The  case at hand is  intricate.  Its circumstances are          highly ramified.  "Change" has been the  watchword virtually ever          since  the consent decrees were entered.  See, e.g., Langton, 928                                                    ___  ____  _______          F.2d  at  1209-10  &  nn.  2-4  (describing  certain  changes  in          pertinent  legislation over  time);  id. at  1212-13  (describing                                               ___                                          13          substantial changes in facilities and conditions of confinement);          id.  at   1213-16  (describing  sweeping  changes   in  treatment          ___          modalities, programs,  and  the  like).   After  two  decades  of          intimate   involvement  with   an   especially   complex   public          institution  immersed in  a state  of continuing  transition, the          district court is still mired in litigation.  We  think that this          scenario  at least  arguably reflects  an  exceptional condition.          Hence, appointing  a master to survey  the legislative landscape,          investigate the  incidence and  impact of  changed circumstances,          assess  the  current relevance  of  the decrees,  and  report the          results  to  the court  did not  constitute  palpable error  as a          matter of law.  See, e.g., Chicago Housing Auth., 511 F.2d at 83-                          ___  ____  _____________________          84  (refusing to annul district  court's appointment of master in          analogous  circumstances); see  also  NORML, 828  F.2d at  543-45                                     ___  ____  _____          (explaining  that   complexity  of  litigation  and   of  decree-          compliance can  justify appointment of a  master in institutional          reform litigation); Carey, 706 F.2d at 962-63 (similar).                              _____                                          c.                                          c.                                          __                    Petitioners  next complain  that  some of  the  matters          referred to the master outstrip the four corners of the pleadings          in King.   The short  answer to this  plaint is that  the order's             ____          text does not  bear it  out.   The slightly  longer (but  equally          availing) answer  is that the litigation's  procedural posture is          still  fluid.   The  district court  has  before it  a  number of          complaints dealing with various aspects of  life at the Treatment          Center.  The order  plainly indicates that the court  proposes to                                          14          treat  these  cases  as  a  group,  at  least  for  some  (as yet          undefined)  purposes.   Class certification  remains a  seemingly          viable option.  To the extent  (if at all) that the court intends          the order  of reference  to extend beyond  the sequestration-type          issues  originally involved in  King, we  presume that  the court                                          ____          will travel an appropriate  procedural path.  See, e.g.,  Fed. R.                                                        ___  ____          Civ.  P. 42(a)  (discussing  requirements  for  consolidation  of          actions); Fed. R.  Civ. P. 23 (discussing prerequisites  to class          action  and related  matters);  Fed. R.  Civ.  P. 24  (discussing          requirements  for intervention).   We  see no  reason, therefore,          given the confined office of a petition for mandamus, to stop the          court in its tracks.                                          d.                                          d.                                          __                    Finally,  petitioners  claim  that  the  district court          failed to  provide them with notice before appointing the master.          They say, moreover, that  this omission was exacerbated by  an ex                                                                         __          parte  contact with respondents'  counsel (a contact  which, as a          _____          byproduct,  gave  respondents  advance  warning  of  the  judge's          mindset).   We do  not believe  that, under  the totality  of the          circumstances, these facts warrant  the issuance of a prerogative          writ.                    While it  seems logical  for a  trial court to  consult          with  affected parties  when contemplating  the appointment  of a          master, the relevant procedural  rule does not explicitly require          prior notice,  see Fed. R. Civ.  P. 53, and we  are unprepared to                         ___          state that advance consultation  is absolutely essential in every                                          15          instance.8   Cf. Gary  W. v. Louisiana,  601 F.2d  240, 244  (5th                       ___ ________    _________          Cir.  1979)  (holding that  a district  court  is not  obliged to          convene  an  evidentiary  hearing  anent  whether  to  appoint  a          master).   In this context, the purpose served by prior notice is          threefold:   it permits parties to  (1) argue for or  against the          very  idea of appointing a master,  see, e.g., id. at 244-45, (2)                                              ___  ____  ___          offer  their  views on  the scope  of  any reference,  see, e.g.,                                                                 ___  ____          Stauble, 977  F.2d at  694-96 (discussing  scope considerations),          _______          and  (3) voice  their preferences  as to  the master's  identity.          See, e.g., Morgan v.  Kerrigan, 530 F.2d 401, 426-27  (1st Cir.),          ___  ____  ______     ________          cert. denied, 426 U.S. 935 (1976).  As we have already indicated,          _____ ______          the reasons for appointing  a master here are sensible  and self-          evident; the scope of the reference is unremarkable; and, lastly,          the petitioners have neither  expressed dissatisfaction with  the          individual selected as the  master nor proffered any person  whom          they  deem a more auspicious  choice.  In  this unique situation,          the incidence of any error is problematic; and, at  any rate, the          failure to provide notice seems benign.                    The  ex parte  contact  does not  stem  the tide.    It                         __ _____          appears that the judge,  seeking to secure a commitment  from the          Commonwealth to  absorb the master's  costs, directed a  clerk to                                        ____________________               8Nonetheless, we  agree with the Ninth Circuit that, when an          order  of reference is entered  sua sponte and  without notice, a                                          ___ ______          party  who  considers himself  aggrieved  thereby  will be  given          considerable latitude as to the form and timeliness of an ensuing          objection.   See Burlington N. R.R. Co. v. Department of Revenue,                       ___ ______________________    _____________________          934 F.2d 1064, 1070-71 (9th Cir. 1991).                                          16          call  the  attorney general's  department.9   We  agree  with the          petitioners that even this indirect  inquiry should not have been          conducted   ex  parte.    In  our   adversary  system,  both  the                      __  _____          administration of  justice and  the appearance of  justice demand          that  courts refrain, by  and large, from  communicating with one          party  to the  exclusion of  the other(s).   See,  e.g., Meridian                                                       ___   ____  ________          Int'l  Logistics, Inc. v. United  States, 939 F.2d  740, 745 (9th          ______________________    ______________          Cir. 1991) (stating the  familiar rule that ex parte  contacts by                                                      __ _____          the  judge are  not the norm);  see also  Model Code  of Judicial                                          ___ ____          Conduct,  Canon  3B(7)  (1990).    Yet  in  this  instance,   the          communication was  wholly  innocuous and  petitioners  have  been          unable to suggest how the judge's lapse was harmful.  Because the          court's  impetuosity was  in no  way prejudicial,  issuance  of a          prerogative writ would be tantamount to using a bazooka to slay a          gnat.   We decline  to engage  in  such judicial  overkill.   See                                                                        ___          Grieco  v.  Meachum,  533  F.2d  713, 719  (1st  Cir.)  (applying          ______      _______          harmless-error analysis where alleged  ex parte contact caused no                                                 __ _____          cognizable  harm),  cert. denied,  429  U.S.  858 (1976);  United                              _____ ______                           ______          States  v.  DeLeo, 422  F.2d 487,  499  (1st Cir.)  (same), cert.          ______      _____                                           _____          denied,  397 U.S. 1037 (1970); see also Raytheon Co. v. Automated          ______                         ___ ____ ____________    _________          Business Sys., Inc.,  882 F.2d 6, 8 n.2 (1st Cir. 1989) (similar;          ___________________          involving arbitrator's ex parte contact).                                 __ _____                         B. Special Risk of Irreparable Harm.                         B. Special Risk of Irreparable Harm.                            ________________________________                                        ____________________               9Petitioners  hint  that  the  contact may  have  been  more          sinister, but they  offer no  support for their  suspicions.   We          confine our  evaluation, therefore, to the  demonstrable facts of          record.                                          17                    Although  it   may  be  unnecessary  to   do  so  given          petitioners'  failure  to  show  palpable  error,  we  take  this          occasion to remark that petitioners likewise flunk the first part          of the conventional  mandamus test:   they offer no  satisfactory          reason  to believe that they will suffer irremediable harm if the          writ does not  issue.   The order that  petitioners challenge  is          merely preliminary.  The  only thing that it accomplishes  is the          appointment of a master to conduct certain studies, analyses, and          investigations,   compile   a   report,   and   thereafter   make          recommendations to  the district judge.   We decline petitioners'          invitation to  speculate, at  this early  date, about  the purely          hypothetical consequences  that may or  may not  flow from  these          operose labors.10  Accord  Chicago Housing Auth., 511 F.2d  at 83                             ______  _____________________          (rejecting similar challenge to similar order of reference).                    Leaving rank speculation aside,  we can detect no other          harm  of a kind sufficient to ground mandamus relief.  Certainly,          any  increased  workload  that   may  result  from  the  master's          involvement cannot turn the trick.  We have consistently rejected          the  general burdensomeness  of  litigation, standing  alone,  as          comprising a showing of  harm sufficient to animate the  power of                                        ____________________               10Petitioners' argument  on this point is  built entirely on          the  fragile foundation  of conjecture  and surmise.   By  way of          illustration, they  ruminate that,  if the master  makes findings          concerning,  say, the  ability of  Treatment Center  personnel to          function under the King decrees, the district court may give such                             ____          findings  overly great  deference.   We prefer, however,  to deal          with  the  actuality of  a  developed  situation rather  than  to          anticipate that a federal district court will lapse into manifest          error.   Cf. W. Shakespeare, Macbeth, act  I, sc. iii, ll. 133-34                   ___                 _______          (1605) (suggesting that, frequently, "present fears are less than          horrible imaginings").                                          18          mandamus.11   See, e.g.,  Recticel, 859 F.2d  at 1006 n.5;  In re                        ___  ____   ________                          _____          Justices, 695 F.2d at 20.          ________          IV. CONCLUSION          IV. CONCLUSION                    We need go  no further.   Mandamus is an  extraordinary          remedy which "should be dispensed sparingly and only in pursuance          of the  most carefully  written prescription, not  made available          over  the counter, on casual demand.   It is not a substitute for          interlocutory  appeal."   Recticel,  859 F.2d  at  1005.   In its                                    ________          present posture, this case does not warrant a dose of such strong          medicine.   The record here  is, for the  most part, malady-free;          and  any symptoms  of  arguable error,  if  later shown  to  have          blossomed into full blown diseases, are amenable to a traditional          cure on direct appeal.                    The  petition for  mandamus  is  denied and  dismissed.                    The  petition for  mandamus  is  denied and  dismissed.                    ______________________________________________________          Costs to respondents.          Costs to respondents.          ____________________                                        ____________________               11Petitioners  argue  that the  Court's  opinion  in Mallard                                                                    _______          marked the dawning  of a  new era, calling  our prior  precedents          into serious question.  We  disagree.  Mallard did not deal  with                                                 _______          the general burdensomeness of litigation at all; rather, the case          involved an attorney compelled by a court to provide professional          services against his will.  See Mallard, 490 U.S. at 300.                                      ___ _______                                          19
