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In Archambault v. United Computing Systems, 695 F.2d 551, 551 (11th Cir. 1983), the court noted that where a magistrate serves as special master with consent of the parties under 28 U.S.C. § 636(b)(2), "[t]he findings of the special master are entitled to the same deference as those of the typical factfinder."
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No. 82-5378. Non-Argument Calendar.
January 14, 1983.
Joseph Egan, Jr., Pilacek, Egan, Cohen Williams, Orlando, Fla., for plaintiff-appellant.
Michael G. Williamson, Maguire, Voorhis Wells, Orlando, Fla., Byron J. Beck, Morrison, Hecker, Curtis, Kuder Parrish, Kansas City, Mo., for defendant-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before RONEY, VANCE and ANDERSON, Circuit Judges.
In this age discrimination suit brought pursuant to 29 U.S.C.A. § 626(c)(1), a magistrate served as a special master under 28 U.S.C.A. § 636(b)(2), apparently with the consent of the parties. The findings of such a special master are entitled to the same deference as those of the typical factfinder, reviewable by a district court under the clearly erroneous standard. Fed.R.Civ.P. 53(e)(2) ("[T]he court shall accept the master's findings of fact unless clearly erroneous."). Contrast this with the designation of a magistrate to conduct hearings under 28 U.S.C.A. § 636(b)(1) where, on objection to the magistrate's findings, the district court must "make a de novo determination." E.g., Nettles v. Wainwright, 677 F.2d 404, 409 (5th Cir. Unit B 1982) (en banc).
The magistrate here made an express finding of discrimination. The district court correctly reviewed that finding under the then law of this Circuit which provided that discrimination was an issue of "ultimate fact" to which the clearly erroneous standard of appellate review did not apply. E.g., Thompson v. Leland Police Department, 633 F.2d 1111, 1112 (5th Cir. 1980); East v. Romine, Inc., 518 F.2d 332, 338-39 (5th Cir. 1975); Causey v. Ford Motor Co., 516 F.2d 416, 421 (5th Cir. 1975). Shortly thereafter, however, the Supreme Court rejected this Circuit's approach, concluding that a finding of discrimination is reviewable only for clear error. Pullman-Standard v. Swint, 456 U.S. 273, 282, 102 S.Ct. 1781, 1787, 72 L.Ed.2d 66, 78-79 (1982). Although Swint concerned Title VII of the 1964 Civil Rights Act, not the Age Discrimination Employment Act (ADEA), there is no reason to distinguish between findings under the two statutes for appellate review purposes. Cf. Smith v. Farah Manufacturing Co., 650 F.2d 64, 68 (5th Cir. 1981) (in a pre- Swint decision, viewing the existence of age discrimination under the ADEA as an issue of ultimate fact, like the existence of race or other discrimination under Title VII).
The Eleventh Circuit, in the en banc decision of Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981), adopted as precedent the decisions of the former Fifth Circuit decided prior to October 1, 1981.
We therefore must remand to the district court for reconsideration of the magistrate's finding of discrimination in light of the standard of review set forth in Swint.
VACATED AND REMANDED.