* Circuit Judge of the Tenth Circuit, sitting by designation. UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

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No. 00-10854

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NEOMA SHAFER; ET AL.,

Plaint iffs,

JUDITH ANN PARKS,

Plaintiff - Appellee,

versus

ARMY & AIR FORCE EXCHANGE SERVICE; UNITED STATES

DEPARTMENT OF DEFENSE

Defendants - Appellants.

Appeals from the United States District Court

for the Northern District of Texas

January 11, 2002

Before BALDOCK * , SMITH, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:1 There is disagreement between the parties as to whether the district court properly referred

Parks’ new claims to the Special Master. Because we decide this case on procedural grounds, we

need not reach this issue.

-2- This appeal arises out of a Title VII and contempt action filed by Judith Ann Parks against

the Army & Air Force Exchange Service (AAFES). Parks’ individual action was originally part of

a larger Title VII class action suit alleging sex discrimination against AAFES. In resolving the class

action, the district court determined that AAFES’ policies had a disparate impact on a class of female

employees employed after 1972, and that this class of employees had received differing treatment with

respect to placement and promotion. S ee Shafer v. AAFES

, 667 F. Supp. 414, 433 (N.D. Tex. 1985).

After the class action decision, the district court assigned Parks’ individual claims of non-promotion

to a Special Master. In 1988, based o n the Special Master’s recommendations, the district court

entered an order requiring AAFES to retroact ively promote Parks, mandating that the company

amend her personnel records to refl ect t ho se retroactive promotions, and enjoining AAFES from

retaliation against her.

On June 27, 1994, Parks filed a contempt motion against AAFES claiming that the company

had not complied with the district court’s 1988 order. Pursuant to F E D

. R. C IV

. P. 53, the district

court once again referred Parks’ claims to the same Special Master. Shortly thereafter, on August

4, 1994, Parks filed a separate lawsuit alleging new instances of discrimination and retaliation distinct

from the claims resolved by the court’s 19 88 o rder. This second lawsuit was transferred to the

original S hafer court. The Special Master then heard both the contempt claims arising out the

original lawsuit as well as the new claims in one proceeding. 1

The Special Master conducted an extensive evidentiary hearing in May of 1996. Following

the hearing, which produced a sixteen-volume record, the court reporter delivered the transcripts of-3-

the procee ding t o AAFES. The Special Master, assuming the reporter would file the original

transcripts with the district court, never delivered any transcripts to the Dis t rict Clerk. After

receiving additional briefing from the parties, the Special Master submitted his recommendations to

the district court on December 28, 1998. The parties then filed objections to the Special Master’s

findings. Nevertheless, on June 20, 2000, the district court approved the Special Master’s

recommendations and adopted them as its opinion.

The parties, apparently assuming that the May transcripts had been delivered to the district

court, subsequently learned in preparation for this appeal that the district court had never received

those documents. Parks and AAFES agreed to duplicate the original transcripts and reconstruct the

exhibits from the hearing. The district court then ordered that both the transcripts and exhibits be

incorporated into the trial record. The court did so without reviewing the transcripts or modifying

its final judgment.

The Federal Rules of Civil Procedure provide that in non-jury actions such as this one, “the

court shall accept the master’s findings of fact unless clearly erroneous.” F ED

. R. C IV

. P. 53(e)(2).

We interpret this rule as imposing an independent obligation on the district court to revie w the

Special Master’s factual findings for clear error. S ee, e.g., Livas v. Teledyne Movible Offshore, Inc

.,

607 F.2d 118, 119 (5 th Cir. 1979); W. R. B. Corp. v. Greer , 313 F.2d 750, 753 (5 th Cir. 1964) (“A

Court at some stage must determine as a judicial matter that the findings meet [the clear error

standard].”); C HARLES A LAN W RIGHT & A RTHUR R. M ILLER

, F EDERAL P RACTICE AND P ROCEDURE :

C IVIL 2d § 2614 (1995) (“The parties are entitled to actual review by the court to determine whether

the findings are clearly erroneous.”). This duty includes examining all relevant evidence, including

in some cases the hearing transcripts in their entirety. Livas , 607 F.2d at 119.-4-

Here, the district court adopte d t he Special Master’s recommendations prior to receiving

either the transcript of the hearing or any of the exhibits from the parties. A review of the Special

Master’s recommendations reveals that his findings were based on competing explanations of the

events leading up to Parks’ decision to leave AAFES, as well as vermiculated testimony concerning

the AAFES promotion system. Given the complicated factual nature of Parks’ claims, the district

court could not have properly fulfilled its obligation under Rule 53 wit hout reviewing the hearing

transcripts.

We cannot review the transcript of the proceeding s befo re the Special Master in the first

instance on appeal. L ivas

, 607 F.2d at 119. Rather, the sufficiency of the Special Master’s findings

is an issue that must first be determined by the district court. I d. T herefore, the judgmen t of the

district court is VACATED. We REMAND this case so that the district court may conduct the

required review of the Special Master’s factual findings.