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  &amp; 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

          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

          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  &amp;  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

          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.
                                               

          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
                                                                 

&amp;  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.
                                  

          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.
                                  

          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.
                                  

          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  &amp;  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.
                                  

          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.
                                  

          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.
                                                  

                    

     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

          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.
                                                                

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
