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OLIVER v. ALLISON

May 19, 1980

HAROLD D. OLIVER, Plaintiff,
v.
WILLIAM ALLISON, Director, Community Services Administration, Defendant.



The opinion of the court was delivered by: RICHEY

MEMORANDUM OPINION

 I. BACKGROUND.

 Plaintiff, Harold Douglas Oliver, is a fifty-five year old black male who was employed as a Community Action Specialist with the Office of Economic Opportunity (OEO), now called the Community Services Administration (CSA). Defendant, William Allison, is the current director of the CSA. Plaintiff was hired as a GS-13 in 1968 and he remained at the OEO until 1970, when he left as a GS-14 on an assignment abroad. He returned to his employment from September, 1972 until March, 1977, when he was removed from the CSA.

 Mr. Oliver brings this action under title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16. He alleges that his removal from the CSA constituted a reprisal for his previous filing of complaints based on racial discrimination. He also claims that he was denied a promotion on account of his race, that he was discriminated against by his supervisor with respect to the conditions of employment, that the CSA engaged in the preselection of a white person who was chosen to fill the position which Mr. Oliver was denied and, finally, that the CSA unlawfully removed Mr. Oliver for insubordination. Defendant has denied all of plaintiff's allegations; it submits that Mr. Oliver was terminated due to his submission of a fraudulent travel voucher and his insubordination which resulted in the deliberate misuse of a government transportation request.

 The parties convened before this Court for a status call on July 28, 1978. Based upon representations made to the Court at that status call, the following Order was signed that same day:

 
ORDERED, that this case be, and the same hereby is, referred to Magistrate Lawrence Margolis, upon consent of the parties, for discovery and trial; the Magistrate to recommend to the Court findings of fact and conclusions of law.

 Magistrate Margolis conducted a non-jury trial on April 3, 4, 5 and 6, 1979 and on December 11, 1979, he filed his findings of fact and conclusions of law. The Magistrate found for defendant on all charges, concluding, "The Complaint should be dismissed, and Defendant is entitled to judgment on the merits." On December 20, 1979, plaintiff filed a notice of appeal "pursuant to D.C.D.C.Civ.R. 3-8(b)(2)(8) (sic ) from adverse judgment entered . . . on December 11, 1979." On December 21, 1979, Magistrate Margolis entered an order dismissing plaintiff's complaint and entering judgment for defendant on the merits. On May 8, 1980, this Court conducted a hearing in accordance with Federal Rule of Civil Procedure 53(e)(2).

 II. PLAINTIFF'S NOTICE OF APPEAL IS ADEQUATE.

 At the outset, the Court must decide whether plaintiff has filed a proper notice of appeal. To perform this task, the Court must examine the relationship between Federal Rule of Civil Procedure 53 and Local Rule 3-8(b) (8). Local Rule 3-8(b)(8) is part of an experimental practice which has allowed magistrates to conduct civil trials; this practice is authorized by 28 U.S.C. § 636(b)(2) & (3), which provide that magistrates may not only act as special masters under Fed.R.Civ.P. 53, but may also "be assigned such additional duties as are not inconsistent with the Constitution and the laws of the United States." 28 U.S.C. § 636(b)(3). See S.Rep.No.74, 96th Cong., 1st Sess. 2-4 (1979) U.S. Code Cong. & Admin. News 1979, p. 1469. The Court notes that the success of this experiment has led Congress to codify and replace local rules, like the one in this District, with a new provision in the Federal Magistrates Act. Federal Magistrate Act of 1979, § 2, Pub.L.No.96-82, 93 Stat. 643; see S.Rep.No.74, 96th Cong., 1st Sess. 4 (1979). *fn1"

 Here, the reference to the magistrate for trial requires the magistrate to act, to some extent, as a special master under Fed.R.Civ.P. 53, which provides in pertinent part:

 
Within 10 days after being served with notice of the filing of the (special master's) report any part may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 6(d).

 Fed.R.Civ.P. 53(e)(2). The Federal Magistrates Act, however, also provides, "Each district court shall establish rules pursuant to which the magistrates shall discharge their duties." 28 U.S.C. § 636(b)(4). Pursuant to this statute, the United States District Court for the ...


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