934 F.2d 1064
20 Fed.R.Serv.3d 475
BURLINGTON NORTHERN RAILROAD COMPANY, Plaintiff-Appellant,v.DEPARTMENT OF REVENUE OF The STATE OF WASHINGTON;  WilliamR. Wilkerson, in his capacity as Director of theDepartment of Revenue of the State ofWashington, Defendants-Appellees.
No. 89-35830.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Aug. 8, 1990.Decided May 24, 1991.

Kurt W. Kroschel, Bellevue, Wash., Gregory G. Fletcher, Laughlin, Halle, Gibson & McBride, Memphis, Tenn., James W. McBride, Laughlin, Halle, Gibson & McBride, Washington, D.C., for plaintiff-appellant.
Teresa M. Morris, James P. Richmond, Asst. Attys. Gen., Olympia, Wash., for defendants-appellees.
Marilyn J. Harbur, Asst. Atty. Gen., Dept. of Justice, Salem, Or., for amicus curiae.
Appeal from the United States District Court for the Western District of Washington.
Before WRIGHT, BEEZER and TROTT, Circuit Judges.
TROTT, Circuit Judge:

1
Burlington Northern Railroad Company ("Burlington") sought preliminary and permanent injunctions to prohibit the Department of Revenue of the State of Washington (the "DOR") from collecting ad valorem taxes on Burlington's personal property.  Burlington alleged that the taxes were discriminatory, in violation of section 306 of the Railroad Revitalization and Regulatory Reform Act of 1976, codified at 49 U.S.C. Sec. 11503.  The district court transferred the entire case to a special master under Fed.R.Civ.P. 53.  The master concluded that Burlington had not established discriminatory taxation, and refused to grant the preliminary injunction.  The district court affirmed.  We have jurisdiction under 28 U.S.C. Sec. 1292(a)(1), and we reverse.

2
* Statutory Framework

3
In 1976, Congress set out to restore the financial stability of the United States railway system.  Burlington N. R.R. Co. v. Oklahoma Tax Comm'n, 481 U.S. 454, 457, 107 S.Ct. 1855, 1857, 95 L.Ed.2d 404 (1987).  Concluding that "railroads are over-taxed by at least $50 million each year," Congress passed section 306 of the Railroad Revitalization and Regulatory Reform Act of 1976, Pub.L. 94-210, Sec. 306, 90 Stat. 31, 54 (1976) (current version at 49 U.S.C. Sec. 11503 (1988)) (the "Act").1   Section 11503(b) of the Act provides:(b) The following acts unreasonably burden and discriminate against interstate commerce, and a State, subdivision of a State, or authority acting for a State or subdivision of a State may not do any of them:

4
(1) assess rail transportation property at a value that has a higher ratio to the true market value of the rail transportation property than the ratio that the assessed value of other commercial and industrial property in the same assessment jurisdiction has to the true market value of the other commercial and industrial property.

5
(2) levy or collect a tax on an assessment that may not be made under clause (1) of this subsection.

6
(3) levy or collect an ad valorem property tax on rail transportation property at a tax rate that exceeds the tax rate applicable to commercial and industrial property in the same assessment jurisdiction.

7
(4) impose another tax that discriminates against a rail carrier providing transportation subject to the jurisdiction of the Commission....

8
49 U.S.C. Sec. 11503(b) (1988).

9
Section 11503(c) is an exception to the Tax Injunction Act, 28 U.S.C. Sec. 1341 (1988).  The Tax Injunction Act prohibits district courts from enjoining the assessment, levy, or collection of any state tax if a speedy and efficient state court remedy exists.  Oklahoma Tax Comm'n, 481 U.S. at 457-58, 107 S.Ct. at 1857-58.    Section 11503(c) provides that, "[n]otwithstanding [28 U.S.C. Sec. 1341] ..., a district court ... has jurisdiction ... to prevent a violation" of Sec. 11503(b).  The corresponding provision of section 306 states that "the district courts ... shall have jurisdiction ... to grant such mandatory or prohibitive injunctive relief, interim equitable relief and declaratory judgments as may be necessary to prevent, restrain or terminate" violations of this section.  Pub.L. 94-210, Sec. 306, sec. 28(2).

II
Washington's Ad Valorem Taxation Scheme

10
All real and personal property in Washington except that expressly exempted is subject to ad valorem taxation and must be valued at 100 percent of its fair market value.  Wash.Rev.Code Secs. 84.36.005, 84.40.020, 84.40.030.  Washington exempts from ad valorem taxation certain classes of business personalty, including commercial vessels and fishing boats, growing crops, agricultural products, ships and vessels under construction, business inventory, nursery stock, and cargo containers used in ocean commerce.  Wash.Rev.Code Secs. 84.36.080(1), 84.40.030(3), 84.36.470, 84.44.060, 84.36.079, 84.36.477, 84.36.105.

11
The DOR annually assesses the operating property of railroads and public utilities for purposes of levying state ad valorem property taxes.  Wash.Rev.Code Sec. 84.12.270.  After the value of the railroad's system-wide operating property is determined, the DOR allocates a percentage to the State of Washington, and apportions this percentage among the counties in which the railroad property is located.  Wash.Rev.Code Secs. 84.12.300, 84.12.360.  The counties then collect the taxes from the railroad.

12
Because railroad property is reassessed annually, it is valued at 100 percent of fair market value.  Most other commercial and industrial property, on the other hand, is assessed by the counties themselves, which do not re-value annually.  As a result, non-railroad commercial and industrial property is often assessed at below fair market value.  To compensate for this discrepancy, the DOR "equalizes" the assessed value of railroad and non-railroad property in each county.  This is accomplished by determining, for non-railroad property, the ratio of assessed value to fair market value (apparently by studying the ratio of assessed value to selling price of selected property), and adjusting the assessment value of railroad property to reflect a similar ratio.

13
For 1988, the DOR valued Burlington's system-wide operating property at $5.1 billion, apportioned $430,104,719 to Washington, and, after county-by-county equalization, assessed Burlington's statewide property at $412,414,115.  Burlington's post-equalization assessment, then, was approximately 95 percent of its pre-equalization assessment.  Burlington's 1988 taxes total $5.6 million, in contrast to its 1987 taxes of $3.7 million.

III
Proceedings Below

14
Burlington's 1988 taxes were payable in two equal installments, one due in April 1989 and one due in October 1989.  Burlington paid the April half but withheld the half due in October.  On September 28, 1989, Burlington filed a complaint seeking preliminary and permanent injunctions restraining the DOR from collecting the second installment of approximately $2.72 million.  It alleged that the DOR (1) violated section 11503(b)(1) by overvaluing Burlington's system-wide operating property by about $2.6 billion, (2) violated section 11503(b)(1) by failing to equalize Burlington's assessment ratio with that of other commercial and industrial property, and (3) violated section 11503(b)(4) by taxing Burlington's personalty while exempting other classes of commercial and industrial personalty.

15
By sua sponte order, without consulting either party, the district court transferred the entire case to a special master.  After hearing oral argument, the master denied Burlington's preliminary injunction motion.  Citing Trailer Train Co. v. State Board of Equalization, 697 F.2d 860, 869 (9th Cir.), cert. denied, 464 U.S. 846, 104 S.Ct. 149, 78 L.Ed.2d 139 (1983), and Lennen I, 640 F.2d 255, the master concluded that traditional equitable criteria do not govern the issuance of preliminary injunctions under section 11503 and that Burlington was entitled to a preliminary injunction if it established "reasonable cause to believe" that section 11503 had been or was about to be violated.  After reviewing the evidence, the master concluded

16
at least preliminarily, that [Burlington] in its valuation applied a significantly different methodology than the State did and did not include properties and adjustments included by the State.  I cannot tell from this whose valuation is correct, and am not convinced that [Burlington] has established a prima facie case of overvaluation and discrimination in violation of Section 306.

17
Therefore, without weighing the evidence and without concluding from the affidavits themselves what weight to be given the various experts and their opinions, I can only conclude that I am not convinced that there is reasonable cause to believe that Section 306 has been violated or is about to be violated on any of [Burlington's] claims.

18
Burlington appealed the master's order, and the district court affirmed.  On appeal, Burlington argues that the district court abused its discretion by referring the entire case to a special master.  Burlington also claims that the special master was correct in applying the "reasonable cause to believe" standard rather than the traditional preliminary injunction test.  Because we conclude that the district court abused its discretion in referring the case to a special master, we need not address the preliminary injunction standard.

IV

19
Burlington's Objection to the Order of Reference

20
We first address the DOR's contention that Burlington waived its right to object to the order of reference by (1) failing to move for revocation of the order after filing an objection, and (2) failing to note the objection for consideration by Judge Tanner pursuant to Local Rule CR 6.  Burlington argues that parties may object to orders of reference either by filing objections or by moving for revocation.  Under the circumstances of this case, we agree with Burlington.

21
The matter was originally assigned to Judge Bryan.  By sua sponte order entered on October 10, 1989, Judge Bryan transferred the case to Judge Tanner and, at the request of Judge Tanner, appointed Edward M. Lane, Esq. as special master pursuant to Fed.R.Civ.P. 53.  Apparently, Judge Bryan believed that Judge Tanner was more equipped to handle the complex issues in the case because he was also presiding over ACF Industries, Inc., et al. v. Dept. of Revenue, No. C89-174T, a "related case" offering "commonalities of the questions of law and fact."

22
On October 23, 1989, Burlington filed its Plaintiff's Objection to Reference to Special Master, but neither noted its objection for consideration by Judge Tanner nor filed a motion to revoke the order of reference.  The court issued no ruling on the objection.  On October 26, the master heard oral argument and, on November 7, denied Burlington's preliminary injunction motion.

23
We must decide whether Burlington's objection to the order of reference was timely made and whether it was adequately preserved for appeal.  A party should "make known his objection to the court at or prior to the reference" if possible, or, if not possible, move to revoke the reference.  5A J. Moore & J. Lucas, Moore's Federal Practice p 53.05 (2d ed. 1948 printing 1989).  Absent "some such objection," proceeding before the master constitutes waiver of any objection.  Id.  "If a timely and proper objection has been made and overruled," an objecting party may appeal.  Id.

24
"[A]n objection to the appointment of a special master must be made at the time of the appointment or within a reasonable time thereafter or the party's objection is waived."    Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1410 (9th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1019, 112 L.Ed.2d 1100 (1991).  In the past, we have held an objection waived because the party had made no objection in the district court.  See id.;    Johnson Controls v. Phoenix Control Sys., 886 F.2d 1173, 1176 (9th Cir.1989) (appellant "waived any objections it had to the appointment of a master by failing to raise the issue, or moving to have the reference revoked");  Spaulding v. University of Washington, 740 F.2d 686, 695 (9th Cir.), cert. denied, 469 U.S. 1036, 105 S.Ct. 511, 83 L.Ed.2d 401 (1984), overruled on other grounds, Atonio v. Wards Cove Packing Co., 810 F.2d 1477 (9th Cir.1987) (objection waived if raised for the first time on appeal);  Diamond Door Co. v. Lane-Stanton Lumber Co., 505 F.2d 1199, 1206 (9th Cir.1974) (objection waived where party neither moved to vacate order nor objected until appeal);  see also Cruz v. Hauck, 515 F.2d 322, 331 (5th Cir.1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1118, 47 L.Ed.2d 322 (1976) (objection waived where appellants did not object at all in the district court).  In Adriana, the appellant did not object to the appointment of the special master until well into the proceedings.  Adriana, 913 F.2d at 1410.    "Adriana attended numerous meetings, depositions and hearings with the special master regarding discovery" over a period of four months.  Id.  Under those circumstances, we held that Adriana's objection after this period was not within a reasonable time of the appointment.

25
Similarly, other circuits have held objections waived where a party objected only after the master filed an unfavorable report.  See Jenkins v. Sterlacci, 849 F.2d 627, 634 (D.C.Cir.1988);  Constant v. Advanced Micro-Devices, 848 F.2d 1560, 1566 (Fed.Cir.), cert. denied, 488 U.S. 892, 109 S.Ct. 228, 102 L.Ed.2d 218 (1988);  Hill v. Duriron Co., 656 F.2d 1208, 1213 (6th Cir.1981).  These cases reflect the courts' desire to avoid rules that provide an incentive to withhold objections until disappointed by an unfavorable result.  In Hill, 656 F.2d at 1213, the Sixth Circuit noted:

26
To permit such objections after the [master] makes his findings and recommendations would certainly not serve the cause of judicial economy.  Parties who did not prevail before the [master] would routinely seek to have the reference set aside for reasons that either could have been corrected or would have stopped the proceedings if promptly brought to the referring court's attention.

27
Further, the Fifth Circuit in Cruz, 515 F.2d at 331, expressed concern that

28
a party disappointed with a master's report would be able to obtain a "second bite at the apple" by withholding his objection to the reference until after the report.

29
We find this reasoning sound, and consistent with the policy underlying the waiver doctrine.

30
Burlington, however, is not affected by either of these rules.  It filed an objection with the district court, and we find it irrelevant that it failed to move for revocation of the order.  The cases cited above indicate that objection below by any means--within a reasonable time after the order is entered--suffices to preserve the objection on appeal.  Here, because the district court entered the order of reference sua sponte and without notice, Burlington had no opportunity to object or consent before entry.  After the order was entered, Burlington objected promptly--thirteen days later, to be exact.  Burlington's failure to move for revocation does not negate the effect of its initial objection.

31
We also find it irrelevant that Burlington failed to take affirmative steps to obtain a ruling on its objection prior to the master's preliminary injunction decision.  Burlington objected, and that is enough.  The objection noted:

32
This reference was made without the consent of the plaintiff, and the plaintiff hereby notes its objection to the reference for the record.

33
....

34
Plaintiff is filing this objection in order to preserve its rights on appeal with respect to the order of reference.  In addition, plaintiff hereby enters a continuing objection to the reference of this case to a Special Master, and a continuing objection to all proceedings before the Special Master and actions taken by the Special Master.

35
Moreover, the objection was filed before the master heard arguments or issued his final decision on the preliminary injunction.  Burlington's conduct could not have been motivated by the master's unfavorable decision.2

36
The DOR also contends that Burlington's failure to object by motion violates the terms of the order and the Local Rules.  We disagree.  The order provides that "[a]ny dispute regarding the interpretation of this order, or any request for modification thereto, shall be resolved by [Judge] ... Tanner.  The parties should present such disputes ... to the court pursuant to Local Rules CR 6 and 7."3   The order did not prescribe the procedure for objecting to the order itself.  Rather, it assumed the propriety of the reference and prescribed the procedure for seeking "modification" of the order and for raising "disputes" regarding its "interpretation."    Accordingly, because Burlington's objection was a direct challenge to the order's legality, we conclude that the objection did not fall within the express language of the order, and hence is not governed by it.

37
Further, we hold the objection was not waived merely because it failed to comply with the Local Rules.  The DOR claims that Burlington failed to designate the date the motion was to be noted on the court's motion calendar, as required by Local Rule CR 6.  We find this omission irrelevant. As we hold below, the court lacked authority under Fed.R.Civ.P. 53 to issue the order of reference.  Therefore, its authority could have come only from Local Rule CR 39.1(f) of the Rules of the United States District Court for the Western District of Washington, which permits appointment of a master upon consent of the parties as an emergency measure to alleviate calendar congestion.  The court did not seek, much less obtain, the parties' consent and thus violated Rule 39.1(f) in making the reference.  It would be unjust to hold Burlington's objection to the reference waived for failure to object by motion as required by the Local Rules, where the order of reference itself violated the Local Rules.

V
Propriety of the Reference Order

38
Burlington argues that the reference order failed to identify exceptional circumstances warranting the reference, and constituted abdication of the district court's decision-making function in violation of Fed.R.Civ.P. 53 and article III of the Constitution.  We review the district court's order of reference to a special master for an abuse of discretion.  United States v. Suquamish Indian Tribe, 901 F.2d 772, 774 (9th Cir.1990).

39
Before examining the merits of the order, we must determine whether we have jurisdiction to consider it.  "Orders of reference to a master are generally interlocutory and not appealable."    National Org. For Reform of Marijuana Laws v. Mullen, 828 F.2d 536, 540 (9th Cir.1987).  This appeal is from the district court's failure to grant Burlington's preliminary injunction motion.  "As a general rule ... we concern ourselves 'only with the order from which appeal is taken,' ... and review other issues only if they are 'inextricably bound up' with the injunction."    Marathon Oil Co. v. United States, 807 F.2d 759, 764 (9th Cir.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1593, 94 L.Ed.2d 782 (1987) (quoting Yamamoto v. Omiya, 564 F.2d 1319, 1325 n. 11, (9th Cir.1977), and Phoceene Sous-Marine, S.A. v. U.S. Phosmarine, 682 F.2d 802, 805 (9th Cir.1982));  see also Transworld Airlines v. American Coupon Exch., 913 F.2d 676, 680 (9th Cir.1990).

40
Further, "an appeal from an order granting or refusing an injunction brings before the appellate court the entire order, not merely the propriety of injunctive relief...."  Barrett v. Smith, 530 F.2d 829, 830 (9th Cir.1975), cert. denied, 425 U.S. 977, 96 S.Ct. 2179, 48 L.Ed.2d 801 (1976), quoted in Marathon Oil, 807 F.2d at 764;  see also Smith v. Vulcan Iron Works, 165 U.S. 518, 17 S.Ct. 407, 41 L.Ed. 810 (1897);  Fentron Indus. v. National Shopmen Pension Fund, 674 F.2d 1300, 1304 (9th Cir.1982);  Long v. Bureau of Economic Analysis, 646 F.2d 1310, 1317-18 (9th Cir.)  (per curiam), vacated on other grounds, 454 U.S. 934, 102 S.Ct. 468, 70 L.Ed.2d 242 (1981).  Thus, we may decide the propriety of the reference order only insofar as it is inextricably bound up with the preliminary injunction order.  Here, the entire case was referred to the special master.  "The legality and enforceability of the order [of reference] is inextricably bound up with the injunction that requires [Burlington] to comply with the [reference]."  Marathon Oil, 807 F.2d at 764.    Therefore, the denial of the preliminary injunction is logically indivisible from the order of reference and we review the propriety of the entire order.

41
Reference to a master "shall be the exception and not the rule" and, "save in matters of account and of difficult computation of damages, ... shall be made only upon a showing that some exceptional condition requires it."    Fed.R.Civ.P. 53(b).  Although "[m]asters may ... be appointed because of the complexity of litigation," we strictly apply Rule 53(b) to require a showing of exceptional conditions to justify the appointment.  See Suquamish Indian Tribe, 901 F.2d at 775;  White v. General Svcs. Admin., 652 F.2d 913 (9th Cir.1981).  We may consider circumstances beyond those recited by the reference order.  La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957).

42
Rule 53 contemplates that the master will assist the court with specific tasks and exercise necessary power.  "A district court has discretion in appointing a special master, and may decide the extent of his duties."    Johnson Controls, 886 F.2d at 1176.    In non-jury actions, the district court "shall accept the master's findings of fact unless clearly erroneous," Fed.R.Civ.P. 53(e)(2), but considers conclusions of law de novo.  Fed.R.Civ.P. Rule 53(e)(4).

43
The use of masters, however, is restricted to situations where they are necessary " 'to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause....' "  La Buy, 352 U.S. at 257, 77 S.Ct. at 314 (quoting Ex parte Peterson, 253 U.S. 300, 312, 40 S.Ct. 543, 547, 64 L.Ed. 919 (1920)).  A special master may not "displace the court."    Id.  "The courts have tended to read [Rule 53] narrowly, closely circumscribing the range of circumstances in which reference to a master is appropriate."    In re Armco, 770 F.2d 103, 105 (8th Cir.1985).

44
Here, the order of reference was made "[a]t the request of Judge Tanner and in the interest of judicial economy ... pursuant to Fed.R.Civ.P. 53."    The master was given "all powers and privileges normally exercised by a United States District Court Judge, in presiding over litigation ... including, but not limited to, those specified in Rule 53(c) and (d), Fed.R.Civ.P."    The master's orders were to be final unless appealed to the district court within 15 days of their entry.

45
The master was required to "prepare and complete a draft report" after trial "setting forth findings of fact and conclusions of law."    The district court, after a hearing, could adopt, modify, or reject the report, receive further evidence, or resubmit the report with instructions to the master.  After the report was received and the parties' objections were considered, the district court would "make the final determination as to the matters herein at issue."

46
After hearing oral argument and considering the evidence, the master denied Burlington's motion for preliminary injunction and Burlington appealed to the district court.  The court affirmed in a brief order, which stated, "Having considered the record and files herein, the Order of the Special Master Denying Plaintiff's Motion for Preliminary Injunction is AFFIRMED."

47
We conclude that the circumstances of this case were not "exceptional" and did not justify the wholesale reference of the entire case to a master.  Further, the district court's "rubber stamp" of the master's order is an inexcusable abdication of judicial responsibility and a violation of article III of the Constitution.

48
This case is governed by the Supreme Court's holding in La Buy.    In that case, the Court approved the Seventh Circuit's authority to issue a writ of mandamus requiring the district court to vacate two reference orders.  The orders referred two antitrust cases to a special master for trial, instructed the master to take evidence and report with findings and conclusions to the court, and contemplated that the master would oversee the cases through trial.

49
The Court rejected the judge's claim that calendar congestion, case complexity, and anticipation of a lengthy trial constituted exceptional circumstances warranting the reference.  Indeed, it believed that complexity was "an impelling reason for trial before a regular, experienced trial judge rather than before a temporary substitute appointed on an ad hoc basis and ordinarily not experienced in judicial work."    La Buy, 352 U.S. at 259, 77 S.Ct. at 315.    It noted that, in light of the judge's familiarity with the cases and experience in the area, he could dispose of the cases more efficiently than anyone else.  The Court concluded that the orders of reference constituted an abuse of power under Rule 53(b) because

50
[t]hey amounted to little less than an abdication of the judicial function depriving the parties of a trial before the court on the basic issues involved in the litigation.

51
The use of masters is "to aid judges in the performance of specific judicial duties ..." and not to displace the court.

52
Id. at 256, 77 S.Ct. at 313 (citation omitted).  Finally, the Court noted that the Seventh Circuit was justified in issuing the writ because of evidence of a pattern of excessive references in that district.

53
In response to this reasoning, the DOR relies on Civil Aeronautics Bd. v. Carefree Travel, 513 F.2d 375 (2d Cir.1975), and In re Armco, 770 F.2d 103 (8th Cir.1985).  We find these cases distinguishable.  In Carefree Travel, the trial judge referred portions of a case to a magistrate because the "proceedings had become sufficiently complicated with a sufficient number of parties and different motions that it appeared as though it might have to be postponed so as not to interfere with the trial of a criminal matter where the defendant was in custody."4   Carefree Travel, 513 F.2d at 382.    The Second Circuit held that the trial court's inability to hear the lengthy testimony due to the impending criminal matter justified reference of the issues raised by a preliminary injunction motion.

54
Unlike the district judge in this case,

55
District Judge Judd ... neither abandoned to the magistrate his prerogatives nor acted simply as a rubber stamp in respect to the magistrate's report.  The court made an extensive examination of the evidence in its own right on the basis of depositions, affidavits and testimony that it heard, and while it confirmed all eight of the magistrate's findings of fact it made further findings on its own, incorporated in its opinion, and confirmed only three of the six conclusions arrived at by the magistrate.  The result reached by the court was exactly the contrary of that recommended by the magistrate....

56
Id. at 383.    The judge in Carefree Travel only delegated power to make initial findings as to the motion, not to decide the entire case.  Judge Tanner, in contrast, "delegat[ed] the judicial decision making function as to the entire case ..."  Id. at 382.

57
In re Armco similarly distinguished between properly letting a master hear and make recommendations on pre-trial motions (summary judgment and dismissal) and improperly letting him preside at trial.  The court noted:

58
We believe that the district court erred in granting the master authority to preside at trial on the merits of this case.  We also believe, however, that the district court acted properly in granting the master the broad authority to supervise and conduct pretrial matters, including discovery activity, the production and arrangement of exhibits and stipulations of fact, the power to hear motions for summary judgment or dismissal and to make recommendations thereto.

59
In re Armco, 770 F.2d at 105.

60
Here, Burlington insisted that a decision be made on its preliminary injunction motion within one month of its filing.  In addition, the DOR points to the public interest in prompt resolution of the motion--so that Washington could make fiscal plans.  These did not constitute exceptional conditions warranting the reference order.  Indeed, we can think of no circumstances to justify so extreme a delegation of judicial power as occurred here.  The circumstances recited in the order--Judge Tanner's request and judicial efficiency--are insufficient.5   In fact, the reference lessened judicial efficiency, given that the case was transferred to Judge Tanner because he was considering another case involving similar facts and issues, and thus offered unique expertise and the capacity for uniform treatment.  Applying the standard articulated in La Buy, we conclude that the order granted the master excessive power over the preliminary injunction motion.  It authorized him to issue an order that would become final if not appealed to the district court under a deferential standard of review.  Moreover, the district court acted as a "mere rubber stamp" for the findings and conclusions of the master.  Although the court received memoranda from the parties, in its order it provided no substantive explanation for affirming.

61
In some circumstances, an erroneous reference alone might not require remand.  See Adventures in Good Eating v. Best Places to Eat, 131 F.2d 809 (7th Cir.1942) (court of appeals may review master's findings even though the reference order is improper);  but cf. Advisory Committee Notes to Rule 53 (implying that noncompliance with rule's provisions could make reference order subject to attack).  Because of the number of issues left to be decided in this case as well as their significance, we conclude this case should be remanded to the district court for initial consideration.

VI
Preliminary Injunction Standard

62
The special master concluded that "[i]ssuance of preliminary injunctive relief in Section 306 cases is not governed by the traditional equitable criteria applicable in actions between private litigants....  [Burlington] is entitled to a preliminary injunction if its evidence demonstrates 'reasonable cause to believe' that Section 306 has been violated, or is about to be violated."    The DOR asserts this conclusion was incorrect, and that the district court should apply the traditional preliminary injunction analysis on remand.6   Although we need not reach this issue, we note that the special master's conclusion is supported by the existing case law.

63
In Trailer Train Co. v. State Bd. of Equalization, 697 F.2d 860, 869 (9th Cir.), cert. denied, 464 U.S. 846, 104 S.Ct. 149, 78 L.Ed.2d 139 (1983), we held:

64
The standard requirements for equitable relief need not be satisfied when an injunction is sought to prevent the violation of a federal statute which specifically provides for injunctive relief....  Section 11503 clearly falls within this exception because its subsection (c) specifically authorizes a district court to grant injunctive relief to prevent a violation of the statute.

65
(citations omitted) (footnote omitted).  In reaching this conclusion, the court relied on the reasoning of Lennen I, 640 F.2d at 258-60.    The Lennen court noted that, in light of Congress's clear purpose to "authorize the district court[s] to grant injunctive relief to prevent, restrain, or terminate violations of [section] 11503(b) of the Act," id. at 258,

66
it is not necessary that the Railroads show that they will suffer irreparable harm if the injunction is denied.  When the evidence shows that the defendants are engaged in, or about to be engaged in, the act or practices prohibited by a statute which provides for injunctive relief to prevent such violations, irreparable harm to the plaintiffs need not be shown.

67
....

68
....  [W]here the trial court finds reasonable cause to believe that a violation of [section] 11503(b) has been, or is about to be, committed, an injunction should be granted to prevent that violation.

69
Id. at 259-60.    We agree with this reasoning.

VII
Conclusion

70
We conclude that the district court abdicated its judicial responsibility by referring this matter in its entirety to a special master and acting as a mere rubber stamp for the master's findings and conclusions.  Because the district court abused its discretion, the denial of Burlington's motion for a preliminary injunction is

71
REVERSED and REMANDED.

1
 Section 306 was originally codified at 49 U.S.C. Sec. 26c, and its language was "slightly altered" when recodified in the Revised Interstate Commerce Act of 1978, Pub.L. No. 95-473, 92 Stat. 1337 (1978), 49 U.S.C. Sec. 11503 (1988).    Oklahoma Tax Comm'n, 481 U.S. at 457 n. 1, 107 S.Ct. at 1858 n. 1.    The recodified version "may not be construed as making a substantive change in the laws replaced."    Id.;  see also Atchison, Topeka and Santa Fe Ry. Co. v. Lennen, 640 F.2d 255, 258 (10th Cir.1981) ("Lennen I ");  Atchison, Topeka and Santa Fe Ry. Co. v. Lennen, 732 F.2d 1495, 1497 (10th Cir.1984) ("Lennen II ").    "Because the revision was not intended to change the law, we must resolve any substantive conflicts between the original language of Sec. 306 and the language in Sec. 11503 in favor of the original language."    Lennen II, 732 F.2d at 1497 (citing Lennen I, 640 F.2d at 258).    We will refer to section 306 only where we believe it is in conflict with section 11503.  Otherwise, all references to the Act will be to the text of section 11503

2
 Our holding is limited to the specific circumstances of this case.  If the court had given Burlington prior notice of its intention to refer the case and more time to pursue the court's ruling on the objection, Burlington's failure to move for revocation may indeed have constituted a waiver.  The clear policy against objection to orders of reference only after unfavorable results leads us to the conclusion that the better practice is to move for revocation immediately after entry of the order, but Burlington's failure to do so is not fatal here given the lack of notice and the unusually short time frame

3
 Local Rule CR 6, requires, inter alia, that a motion designate the date it is to be noted on the court's motion calendar.  Local Rule CR 7 requires that the movant serve and file with the motion a statement of supporting reasons and citations, and provides that " '[m]otions,' as used herein, shall include objections."

4
 Because the motion involved millions of dollars and affected thousands of airline passengers, the public interest required prompt determination

5
 Indeed, it is almost impossible to justify the appointment of a master based only on "judicial efficiency."    The master here, Mr. Lane, is a practicing attorney with many responsibilities and professional burdens.  As the Court pointed out in La Buy, 352 U.S. at 253 n. 5, 77 S.Ct. at 312 n. 5,
"There is one special cause of delay in getting cases on for trial that must be singled out for particular condemnation, the all-too-prevalent habit of sending matters to a reference.  There is no more effective way of putting a case to sleep for an indefinite period than to permit it to go to a reference with a busy lawyer as referee.  Only a drastic administrative rule, rigidly enforced, strictly limiting the matters in which a reference may be had and requiring weekly reports as to the progress of each reference will put to rout this inveterate enemy of dispatch in the trial of cases."
(quoting Vanderbilt, Cases and Materials on Modern Procedure and Judicial Administration, pp. 1240-41 (1952)).

6
 Normally, "[a] party seeking a preliminary injunction must fulfill one of two standards, described in this circuit as 'traditional' and 'alternative.' "    Cassim v. Bowen, 824 F.2d 791, 795 (9th Cir.1987) (quoting American Motorcyclist Ass'n v. Watt, 714 F.2d 962, 965 (9th Cir.1983).  As we noted in Cassim,
Under the traditional standard, a court may issue preliminary relief if it finds that (1) the moving party will suffer irreparable injury if the relief is denied;  (2) the moving party will probably prevail on the merits;  (3) the balance of potential harm favors the moving party;  and (4) the public interest favors granting relief.  Under the alternative standard, the moving party may meet its burden by demonstrating either (1) a combination of probable success and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips sharply in its favor.
Id. (citations omitted).  " 'These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases.' "    Hunt v. National Broadcasting Co., 872 F.2d 289, 293 (9th Cir.1989) (quoting United States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 174 (9th Cir.1987)).


458 F.2d 159
U. S.v.Shook
72-1128, 72-1129
UNITED STATES COURT OF APPEALS Second Circuit
May 1, 1972

1
S.D.N.Y.


                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                       FILED
                              FOR THE NINTH CIRCUIT                         FEB 26 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

 JOSUE DANIEL MUNOZ,                              No. 07-70489

               Petitioner,                        Agency No. A072-536-383

   v.
                                                  MEMORANDUM *
 ERIC H. HOLDER Jr., Attorney General,

               Respondent.

                       On Petition for Review of an Order of the
                           Board of Immigration Appeals

                             Submitted February 16, 2010 **

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Josue Daniel Munoz, a native and citizen of Guatemala, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen

based on ineffective assistance of counsel. We have jurisdiction pursuant to

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

JT/Research
8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to

reopen, and de novo questions of law, including claims of ineffective assistance of

counsel. Mohammed v. Gonzales, 400 F.3d 785, 791- 92 (9th Cir. 2005). We deny

the petition for review.

        The BIA did not abuse its discretion in denying Munoz’ motion to reopen as

untimely because the evidence submitted with the motion failed to establish Munoz

acted with the due diligence required to warrant tolling of the 90-day filing

deadline. See Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003) (equitable

tolling is available to petitioner who is prevented from filing due to deception,

fraud or error, and exercises due diligence in discovering such circumstances).

        PETITION FOR REVIEW DENIED.

JT/Research                                2                                    07-70489


J-A03027-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    J.A.Z.                                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    P.J.J.                                     :
                                               :
                       Appellant               :   No. 1352 WDA 2018

                Appeal from the Order Entered August 17, 2018
      In the Court of Common Pleas of Blair County Civil Division at No(s):
                                2010-GN 4413

BEFORE:      BOWES, J., SHOGAN, J., and STRASSBURGER*, J.

MEMORANDUM BY SHOGAN, J.:                               FILED MARCH 11, 2019

        Appellant P.J.J. (“Father”) appeals from the order denying his petition

to modify the existing child custody order regarding his daughter, E.J.

(“Child”), born in March of 2008, to Father and J.A.Z. (“Mother”). The order

continued the award of primary physical custody to Mother, partial physical

custody to Father, and denied Father’s request for shared physical custody of

Child in a 50/50 arrangement. The order also granted Mother’s request, made

at the custody hearing, for a reduction in Father’s physical custody time.1

We affirm.

____________________________________________

1  Pursuant to the custody order on appeal, Father has partial custody every
Wednesday after school until 8:00 p.m., and every other weekend from 6:00
p.m. on Thursday until Sunday night at 8:00 p.m., with a different schedule
for summer vacation and holidays. The order on appeal eliminated the Sunday

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A03027-19

       The parties were married, and on November 22, 2010, Mother filed a

complaint for divorce against Father, including a count seeking primary

physical custody of Child. In February of 2014, the trial court entered the final

divorce decree. Mother and Father both live in Hollidaysburg, Pennsylvania,

approximately four blocks apart. Father, an employee at the retailer REI, is

remarried, and he and his current wife have twin children.           Mother is a

substitute teacher and freelance writer. Child is academically advanced, has

straight As, and creates videos for YouTube.2

       On January 15, 2016, Father filed a petition to modify custody. Upon

the consent of the parties, on February 26, 2016, the trial court entered a

temporary order directing that the parties share legal and physical custody of

Child and that Child reside with Mother in the marital home. On April 6, 2016,

the trial court directed that the February 26, 2016 order remain in effect. On

December 9, 2016, the trial court held an evidentiary hearing on Father’s

petition to modify custody. Thereafter, in an order entered on December 27,

2016, the trial court directed that the parties share legal and physical custody

of Child and that Child continue to reside with Mother.

____________________________________________

overnight with Father, which had been in place under the existing
December 20, 2016 custody order, because Child preferred to spend Sunday
night at Mother’s home and leave for school on Monday morning with Mother.

2 For a more detailed presentation of the history of this matter, we direct the
reader to the trial court’s opinion in support of the order on appeal. Trial Court
Opinion, 8/27/18, at 1-7.

                                           -2-
J-A03027-19

       On January 18, 2017, Father filed a motion for reconsideration of the

December 27, 2016 order. The trial court held a hearing on the motion for

reconsideration on January 30, 2017. In an order entered on February 1,

2017, the trial court denied Father’s request for additional physical custody

during the summer months.            On June 9, 2017, the trial court entered a

supplemental custody order incorporating the parties’ agreement regarding

the summer physical custody schedule.

       On October 12, 2017, Father filed a petition for modification, requesting

a 50/50 physical custody arrangement. On November 16, 2017, Father filed

a request for a custody evidentiary hearing. In an order dated November 16,

2017, and entered on November 17, 2017, the trial court stated that, having

reviewed the orders entered December 27, 2016, February 1, 2017, and

June 9, 2017, it declined to modify the existing custody order pending the

custody litigation process.

       The trial court held custody evidentiary hearings on March 26, 2018,

and June 18, 2018.3 During the hearings, Father continued to seek a 50/50

physical custody arrangement, and Mother sought to reduce Father’s period

of physical custody.

____________________________________________

3  At the hearing on March 26, 2018, Father testified on his own behalf. On
June 18, 2018, Child testified in camera. Also on June 18, 2018, Mother’s
counsel cross-examined Father. Father’s counsel questioned Father on re-
direct examination, and Mother testified on her own behalf.

                                           -3-
J-A03027-19

      On August 17, 2018, the trial court entered the order that awarded

shared legal and physical custody to the parties, with the schedule set forth

above.    Supra, at 1 n.1.       Father timely filed a notice of appeal on

September 14, 2018, along with a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). In addition, the trial

court complied with Pa.R.A.P. 1925(a).

      Father presents the following issues for our review, which we have

renumbered for ease of disposition:

      I. Whether the trial court erred or abused its discretion by failing
      to order a shared 50/50 custody schedule between the parents
      and by fashioning a manifestly unreasonable custody order[,]
      reducing Father’s periods of custody with the minor child, which is
      not in the best inter[e]st of the child?

      II. Whether the trial court erred or abused its discretion in finding
      that the child’s preference to reside with Mother was a well[-
      ]reasoned preference as required under 23 Pa.C.S.A.
      § 5328(a)(7)?

      III. Whether the trial court erred or abused its discretion in finding
      that Mother was more able than Father to maintain a loving,
      stable, consistent and nurturing relationship with the child
      because Mother has fewer family members to share her time
      with[,] making her more available to the child?

      IV. Whether the trial court erred or abused its discretion in finding
      that the mother consistently urges the child to think about Father
      and offers Father extra time to be with the child?

Father’s Brief at 4-5.

      Father’s four issues challenging the trial court’s custody order are

interrelated. In all of his issues, Father argues that the trial court abused its

                                      -4-
J-A03027-19

discretion or erred in refusing to award a 50/50 shared physical custody

arrangement to him.

      In his first issue, Father argues that the trial court erred or abused its

discretion by failing to order a shared 50/50 custody schedule between the

parents and by fashioning a manifestly unreasonable custody order, reducing

Father’s periods of custody with the minor child, which is not in the best

interest of Child. Father’s Brief at 36-49. Father contends that it is in the

best interest of Child to have a 50/50 shared custody arrangement. Father

argues that the proximity of his residence to Mother’s house is only a few

blocks, which makes his proposed custody arrangement possible and in Child’s

best interest. Id. at 40.

      In his second issue, Father argues that the trial court erred or abused

its discretion when it concluded that Child’s preferences are well-reasoned.

Father’s Brief at 15-25. Father notes that Child, although academically gifted,

is only ten years old. Father asserts that Child’s reported stress about not

attending school on time when in Father’s care is unsupported by the record.

Id. at 18-21.   Father urges that Child’s relationship with her half-siblings,

whom she finds annoying, is extremely important, and should not be brushed

aside merely because Child reports that she is more comfortable distancing

herself from them. Id. at 22-25. Father argues that Child’s family should not

be limited to Mother and Father, but should include her siblings.

                                     -5-
J-A03027-19

      With regard to his third issue, Father argues that the trial court erred or

abused its discretion in finding that Mother was the parent better able to

maintain a loving, stable, consistent, and nurturing relationship with Child

because Mother has fewer family members, making her more available to

Child. Father’s Brief at 25-29. Father asserts that the parties are equally able

to maintain a loving, stable, consistent, and nurturing relationship with Child,

despite having differences within his home as to family members. Id. at 26.

Father claims that the differences between his work schedule and Mother’s

work schedule do not hamper his ability to provide Child with love that equals

Mother’s love of Child. Id. at 26-27.

      In his final issue, Father contends that the trial court erred or abused its

discretion in finding that Mother consistently urges Child to think about Father

and offers Father extra time to be with Child. Father’s Brief at 29-36. Father

claims, instead, that the record demonstrates that Mother fails to encourage

extra time between Father and Child. Id. Father asserts that, while there are

some examples of Mother providing him some additional time with Child when

convenient for her schedule, the record establishes that Mother takes a

different approach when Father seeks additional time which would take away

from Mother’s time with Child.

      Citing M.A.T. v. G.S.T., 989 A.2d 11, 21 (Pa. Super. 2010) (en banc),

Father urges that, where the record is sufficiently developed, yet the trial court

has abused its discretion, we may exercise our discretion, and substitute our

                                      -6-
J-A03027-19

discretion for that of the trial court. Father’s Brief at 14, 49. Father, in fact,

implores this Court to exercise its discretion and enter an order providing

Mother and Father with a shared 50/50 custody arrangement, which he

asserts is in Child’s best interest.

      In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.

§§ 5321-5340, our standard of review is as follows:

      In reviewing a custody order, our scope is of the broadest type
      and our standard is abuse of discretion. We must accept findings
      of the trial court that are supported by competent evidence of
      record, as our role does not include making independent factual
      determinations. In addition, with regard to issues of credibility
      and weight of the evidence, we must defer to the presiding trial
      judge who viewed and assessed the witnesses first-hand.
      However, we are not bound by the trial court’s deductions or
      inferences from its factual findings. Ultimately, the test is whether
      the trial court’s conclusions are unreasonable as shown by the
      evidence of record. We may reject the conclusions of the trial
      court only if they involve an error of law, or are unreasonable in
      light of the sustainable findings of the trial court.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).

      We have stated:

      The discretion that a trial court employs in custody matters should
      be accorded the utmost respect, given the special nature of the
      proceeding and the lasting impact the result will have on the lives
      of the parties concerned. Indeed, the knowledge gained by a trial
      court in observing witnesses in a custody proceeding cannot
      adequately be imparted to an appellate court by a printed record.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting Jackson

v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).

      In M.A.T., we stated the following regarding an abuse of discretion

standard:

                                       -7-
J-A03027-19

     Although we are given a broad power of review, we are
     constrained by an abuse of discretion standard when evaluating
     the court’s order. An abuse of discretion is not merely an error of
     judgment, but if the court’s judgment is manifestly unreasonable
     as shown by the evidence of record, discretion is abused. An
     abuse of discretion is also made out where it appears from a
     review of the record that there is no evidence to support the
     court’s findings or that there is a capricious disbelief of evidence.

Id. at 18-19 (quotation and citations omitted).

     Regarding the definition of an abuse of discretion, this Court has stated:

     [a]n abuse of discretion is not merely an error of judgment; if, in
     reaching a conclusion, the court overrides or misapplies the law,
     or the judgment exercised is shown by the record to be either
     manifestly unreasonable or the product of partiality, prejudice,
     bias or ill will, discretion has been abused.

Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa. Super. 2007) (quotation

omitted).     With any custody case decided under the Act, the paramount

concern is the best interests of the child.       23 Pa.C.S. §§ 5328, 5338.

     Section 5323 of the Act provides for the following types of custody

awards:

     (a) Types of       award.—After considering the factors set forth in
     section 5328       (relating to factors to consider when awarding
     custody), the       court may award any of the following types of
     custody if it is   in the best interest of the child:

            (1) Shared physical custody.

            (2) Primary physical custody.

            (3) Partial physical custody.

            (4) Sole physical custody.

            (5) Supervised physical custody.

                                         -8-
J-A03027-19

         (6) Shared legal custody.

         (7) Sole legal custody.

23 Pa.C.S. § 5323(a).

      Section 5338 of the Act provides that, upon petition, a trial court may

modify a custody order if it serves the best interests of the child. 23 Pa.C.S.

§ 5338. Section 5328(a) sets forth the best-interest factors that the trial court

must consider. E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super. 2011). Trial

courts are required to consider “[a]ll of the factors listed in section

5328(a) ... when entering a custody order.” J.R.M. v. J.E.A., 33 A.3d 647,

652 (Pa. Super. 2011) (emphasis in original).

      Section 5328(a) of the Act provides as follows.

      § 5328. Factors to consider when awarding custody

      (a) Factors.—In ordering any form of custody, the court shall
      determine the best interest of the child by considering all relevant
      factors, giving weighted consideration to those factors which
      affect the safety of the child, including the following:

             (1) Which party is more likely to encourage and permit
      frequent and continuing contact between the child and another
      party.

             (2) The present and past abuse committed by a party or
      member of the party’s household, whether there is a continued
      risk of harm to the child or an abused party and which party can
      better provide adequate physical safeguards and supervision of
      the child.

            (2.1) The information set forth in section 5329.1(a)(1) and
      (2) (relating to consideration of child abuse and involvement with
      protective services).

                                      -9-
J-A03027-19

           (3) The parental duties performed by each party on behalf
     of the child.

          (4) The need for stability and continuity in the child’s
     education, family life and community life.

           (5) The availability of extended family.

           (6) The child’s sibling relationships.

            (7) The well-reasoned preference of the child, based on the
     child’s maturity and judgment.

          (8) The attempts of a parent to turn the child against the
     other parent, except in cases of domestic violence where
     reasonable safety measures are necessary to protect the child
     from harm.

           (9) Which party is more likely to maintain a loving, stable,
     consistent and nurturing relationship with the child adequate for
     the child’s emotional needs.

           (10) Which party is more likely to attend to the daily
     physical, emotional, developmental, educational and special
     needs of the child.

           (11) The proximity of the residences of the parties.

          (12) Each party’s availability to care for the child or ability
     to make appropriate child-care arrangements.

            (13) The level of conflict between the parties and the
     willingness and ability of the parties to cooperate with one
     another. A party’s effort to protect a child from abuse by another
     party is not evidence of unwillingness or inability to cooperate with
     that party.

         (14) The history of drug or alcohol abuse of a party or
     member of a party’s household.

         (15) The mental and physical condition of a party or
     member of a party’s household.

                                    - 10 -
J-A03027-19

              (16) Any other relevant factor.

23 Pa.C.S. § 5328.

       Further, we have explained:

       Section 5323(d) provides that a trial court “shall delineate the
       reasons for its decision on the record in open court or in a written
       opinion or order.” 23 Pa.C.S.A. § 5323(d). Additionally, “section
       5323(d) requires the trial court to set forth its mandatory
       assessment of the sixteen [Section 5328(a) custody] factors prior
       to the deadline by which a litigant must file a notice of appeal.”
       C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013), appeal denied,
       70 A.3d 808 (Pa. 2013). . . .

       In expressing the reasons for its decision, “there is no required
       amount of detail for the trial court’s explanation; all that is
       required is that the enumerated factors are considered and that
       the custody decision is based on those considerations.” M.J.M. v.
       M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied, [620
       Pa. 710], 68 A.3d 909 (2013). A court’s explanation of reasons
       for its decision, which adequately addresses the relevant factors,
       complies with Section 5323(d). Id.

A.V. v. S.T., 87 A.3d 818, 822-823 (Pa. Super. 2014).

       We have reviewed the briefs of the parties, the relevant legal authority,

the certified record before us, and the trial court’s opinion filed on September

28, 2018, in compliance with Pa.R.A.P. 1925(a).4 In its opinion, the trial court

thoroughly addressed Father’s issues in the order presented in his Rule

1925(b) statement, as follows:

       1. The trial [c]ourt erred and/or abused its discretion by
       failing to order a shared 50-50 custody schedule between
____________________________________________

4  We note that the trial court also filed, on August 27, 2018, a separate
opinion in support of the custody order. In the opinion, the trial court
presented a detailed analysis reflecting its understanding and consideration of
the relevant statutory factors set forth in Section 5328. Trial Court Opinion,
8/27/18, at 8-19.

                                          - 11 -
J-A03027-19

     the parents and by fashioning a manifestly unreasonable
     custody order reducing [F]ather’s periods of custody with
     the minor child which is not in the best interest of the child.

          Section 5323 of the Act provides for the following types of
     awards:

              (a) Types of award.—After considering the
              factors set forth in section 5328 (relating to factors
              to consider when awarding custody), the [c]ourt
              may award any of the following types of custody if
              it in the best interest of the child:

              (1)   Shared physical custody.
              (2)   Primary physical custody.
              (3)   Partial physical custody.
              (4)   Sole physical custody.
              (5)   Supervised physical custody.
              (6)   Shared legal custody.
              (7)   Sole legal custody.

     23 Pa.C.S. § 5323.

            In this case, the [c]ourt crafted an order under which the
     parents shared legal and physical custody of their child. In its
     Opinion in Support of Order dated August 27, 2018, the [c]ourt
     cited the applicable case law governing custody starting on page
     8 of its [O]pinion, and analyzed the relevant custody factors,
     beginning on page 9 of its Opinion, in coming to its conclusions
     about what was in the best interest of the child. There is nothing
     in the law that dictates that the [c]ourt must order a shared 50-
     50 custody schedule between the parents, unless the [c]ourt finds
     it to be in the best interests of the child.

             In this case, Father’s main focus in the litigation is to achieve
     a mathematically precise 50-50 custody split. He received the
     impression the last time he was before the [C]ourt in custody
     litigation that the judge would move him to a complete 50-50.
     (Transcript [N.T.] March 26, 2018, p. 13 l. 8-20). He believes that
     this is a natural split. He believes that he [sic] if he gets less than
     a 50-50 split[,] he is being presented as a second[-]class option.
     ([Id.], page 32). Father testified that it is a zero-sum game, and
     he does not feel that his family or he should be considered as
     second-class in this situation. (Id., p. 32-33.)

                                      - 12 -
J-A03027-19

            Father presented in testimony as being more concerned
     about achieving a 50-50 split for himself than caring about the
     effect of the order on the child. It would not be in the child’s best
     interest to craft an order that achieves a 50-50 split solely because
     that is what Father wants. The order the [c]ourt crafted gave
     Father every Wednesday after school until 8 PM with the child[,]
     and every other weekend from 6 PM on Thursday until Sunday
     night at 8 PM. This maintains a consistent contact between Father
     and the child[,] so as to maintain their bond.

             The [c]ourt respectfully submits that this Order is not
     manifestly unreasonable. The [c]ourt eliminated one Sunday
     night from Father’s schedule, based on the child[’s] interview[,]
     when the child indicated that it made her very anxious to have to
     go to school on Monday morning from Father’s house. She said
     she felt more comfortable going to school with her Mother on
     Monday morning, because she knows they will be early. The child
     presented as a very anxious child, who mentioned subjects like
     death in her interview with the [c]ourt. The [c]ourt believes that
     it is in the child’s best interests to craft a custody order which will
     lessen her anxiety about being late to school.

           2. The trial [c]ourt erred and/or abused its discretion
     in finding that the subject minor’s preference to reside with
     [M]other was a well-reasoned preference as required by 23
     Pa.C.S. 5328(a)(7).

            The [c]hild was born [in March of 2008]. She was 10 years
     old when the [c]ourt interviewed her. Although she is 10 years
     old, the child is extremely intelligent. Both parents agree she does
     extremely well in school. She is in the gifted program. She has
     written books, and makes her own YouTube videos. She was very
     communicative in the interview.          She used vocabulary and
     concepts older than her age. For example on page 2 of the
     transcript, when asked by the [c]ourt to tell some details about
     her life, the child responded that she has had “anxiety a bit”.

            When asked to define anxiety, she responded that it was
     kind of like stress. When asked to define stress, she defines it as
     a feeling like you had weight on your shoulders and that you don’t
     feel free, in a sense. (Child interview transcript, [6/18/18 at]
     pages two and three). When asked what she worries about, the
     child responded, “Stress, death, religion, feelings of a lot of my
     friends and family.” (Id. p. 3 l. 22-23). She was comfortable with

                                     - 13 -
J-A03027-19

     and understood abstract concepts. The child had a good memory
     and was able to recite events in detail. She credibly testified that
     school is easy for her. When asked whether there is anything in
     which she is interested that she is not learning at school, “I’d like
     to learn more about the periodic table.” (Id. p. 7).

           The child testified credibly that she feels more comfortable
     at Mother’s house because Mother doesn’t try to make her do
     things with which she is uncomfortable. (Id. p. 12). She testified
     she does not like it when her stepmother makes her watch the
     twins. She testifies that she spends more time with her [m]other
     than her [f]ather, (Id. p. 13). She stated credibly that she would
     not enjoy a week on-week off schedule between her [m]other and
     [f]ather because she would feel very imbalanced. She says that
     she does not take well to change. (Id. p. 15 l. 5). She said she
     would rather be at her Mother’s [home]. (Id. p. 16 l. 13).

           The [c]ourt did not base its custody determination solely on
     the minor’s preference, but finds that this particular child, at 10
     years of age, was capable of expressing a well-reasoned
     preference. She stated clearly her preference for going to school
     on Monday morning from her Mother’s house and with her Mother.
     (Id. p. 14). She does not like to be late to school, and it increases
     her obvious and stated anxiety.           This is a well-reasoned
     preference for not staying at Father’s house Sunday nights. She
     further stated that she does not sleep well at Father’s house
     because of the three-year-old twin stepsiblings there, who make
     a lot of noise at night. (Id. p. 8) (“My brother and sister at my
     dad’s scream all night-well, not all night but it’s hard to sleep with
     them talking over there”), it is not in her best interest to go to
     school tired because of not being able to sleep because of noise
     of other children at her Father’s house.

           3. The trial [c]ourt erred and/or abused its discretion
     in finding that [M]other was more able than [F]ather to
     maintain a loving, stable, consistent and nurturing
     relationship with the subject minor child[,] because
     [M]other has fewer family members to share time with
     making her more available to the child.

            Although the trial [c]ourt did find that Mother was more able
     than Father to maintain a loving, stable, consistent and nurturing
     relationship with Child, its finding was not based solely on the fact

                                    - 14 -
J-A03027-19

     that Mother has fewer family members to share time with, making
     her more available to the child.

           It is true that Mother has more time to be available to the
     child. Part of the reason is because Father has a wife and two 3-
     year-old twins at home to pay attention to besides this child,
     whereas Mother does not have a new family. Part of the reason
     is because Mother’s work hours are more conducive to her
     spending time with the child than are Father’s work hours. (The
     [c]ourt is not criticizing Father for having a new family or for
     having more extensive work hours than Mother). However, the
     reason the [c]ourt found that Mother was more able than Father
     to maintain a loving, stable, consistent and nurturing relationship
     with the child was the totality of the testimony.

            The testimony, beginning on page 10 of the June 18, 2018
     transcript, was that Mother lives in the former marital residence,
     which has been the child’s home since she was one. The child is
     extremely comfortable at Mother’s residence. Mother was the
     primary caretaker for the first full year of the child’s life because
     Father was only home on the weekends. The parties agreed when
     they were married that Mother would be a stay[-]at[-]home
     mother. (Id. p. 13). Mother’s credible testimony was that for
     80% of the child’s life the child has been primarily with Mother.
     (Id. p. 12). Mother is a substitute teacher and is available
     essentially on a 24/7 basis for the child during the summer
     because she does not substitute teach in the summer. (Id. p.
     22). Mother has taught the child to sew and knit. They also go
     camping in summer, and[,] in winter[,] they go hiking and watch
     movies and go swimming. Mother was a homeroom mother for
     the child in the past school year. She has been homeroom mother
     or assistant to the homeroom mother every other year. She also
     coaches the child in soccer. She has a strong bond with the child.
     (Id. p. 24). The totality of the testimony established that the
     Mother is more able than Father to provide stability and
     consistency and love for the child. This is not to say that Father
     is incapable of providing stability and consistency and love.
     Indeed, the parties did not dispute that the other was capable of
     providing these things to the child, and did provide them. The
     factor asks the [c]ourt to determine which parent is more able to
     do these things. The [c]ourt finds that in this case, based in a
     totality of the testimony, it is Mother.

                                    - 15 -
J-A03027-19

           4. The trial [c]ourt erred and/or abused its discretion
     in finding that the mother consistently urges the child to
     think about [F]ather and offers [F]ather extra time to be
     with the child.

            This is a credibility determination. The [c]ourt found that
     Mother’s credible testimony bore out these things.         Mother
     testified credibly that, at one point, Child became interested in
     using an old manual typewriter, and that this development was
     shared with Father by sending him a picture of [C]hild using the
     typewriter. (6/18/18 N.T. at p. 26, 1.20). She testified credibly
     that she taught the child how to knit, which has helped her with
     stress and anxiety, and that every year they make people things
     for Christmas including Father. (Id. p. 27 line 3).

            On page 38 of the same transcript, [Mother] testified and
     credibly gave examples of how she had encouraged the child to
     have a good relationship with her [f]ather. [Mother] testified that
     she campaigned hard for Father and the child to have phone calls
     together every night. [Mother] says that when she has to go to
     work at the YMCA[,] she offers that the child go to her father’s
     [home,] even when it is her day to have the child. [Mother]
     credibly testified that she talks to the child about getting her
     [f]ather gifts. [Mother] testified that she and the child were in
     Michigan[,] and the child asked whether she could buy jam for her
     [f]ather[,] and Mother said absolutely[,] and purchased the gift.
     [Mother] testified credibly that she helps the child create Father’s
     Day cards. She testified credibly on page 39 that there are lots of
     times when she had opportunities to have the child with her
     family, and [Mother] has offered that time to Father. ([Id.,] p.
     39, l. 5).

            [Mother] testified credibly that in March, 2016, she went
     away on a trip and offered that time to Father. She had the
     opportunity to go to Paris in November, 2017, and testified
     credibly on page 39 that she gave Father first choice to have that
     time with the child instead of other people who would have liked
     to stay with [Child]. [Id. at p. 39, at l. 21-25.] [Mother’s]
     testimony on page 40 was that[,] frequently, when Father is
     supposed to pick the child up at noon, Mother will ask him whether
     he wants to have [Child] at 9:30 in the morning. [Id., at p. 40,
     at l. 18-20.] [Mother] testified that she has invited Father and
     stepmother to Child’s birthday parties every year that [Mother]
     has had one. [Id. at l. 23-25.]

                                    - 16 -
J-A03027-19

             The [c]ourt found [M]other to be credible when she said
      these things. The remainder of the testimony does not show the
      [c]ourt’s conclusion about the Mother’s credibility to be manifestly
      unreasonable. Therefore, the reviewing Court should support the
      [trial court’s] credibility determination.

Trial Court Opinion, 9/28/18, at 4-10 (emphases in original).

      After a careful review of the record in this matter, we reject Father’s

invitation to substitute our judgment for that of the trial court. We remind

Father that we may reject the conclusions of the trial court only if they involve

an error of law or are unreasonable in light of the sustainable findings of the

trial court. C.R.F., 45 A.3d at 443. Here, it is our determination that the trial

court’s conclusions do not involve an error of law and are not unreasonable as

shown by the evidence of record.        While Father might desire additional

custodial time with Child, the trial court adequately explained its findings, and

they are supported by the competent evidence in the record.          Hence, we

sustain the trial court’s determination pursuant to C.R.F.

      Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/11/2019

                                     - 17 -


280 F.2d 436
Application of Michael Mojzesz SZWARC.
Patent Appeal No. 6462.
United States Court of Customs and Patent Appeals.
July 20, 1960.

Carpenter, Abbott, Coulter, & Kinney, St. Paul, Minn. (Cruzan Alexander and James Daniel Stice, St. Paul Minn., of counsel), for appellant.
Clarence W. Moore, Arthur H. Behrens, Washington, D. C. (Joseph Schimmel, Washington, D. C., of counsel), for the Commissioner of Patents.
Before WORLEY, Chief Judge, and RICH, MARTIN, and SMITH, and JOHNSON (retired), Judges.
SMITH, Judge.

1
Involved in this appeal is a continuation in part application whose parent application was held by the Court of Appeals of the District of Columbia Circuit in Petrocarbon Ltd. v. Watson, 101 U.S. App.D.C. 214, 247 F.2d 800, certiorari denied 355 U.S. 955, 78 S.Ct. 540, 2 L.Ed.2d 531, to be "defective as a matter of law" for failure to comply with 35 U.S.C. § 112. The Board of Appeals held that this issue was res judicata and affirmed the examiner in denying appellant the right to rely on 35 U.S.C. § 120 to secure for the present application the benefit of the earlier filing date of the parent application and thus overcome the rejection of the application under 35 U.S.C. § 102(b) on British patent No. 650,947 as a statutory bar.1

2
The issue raised by assignment of error No. 9 is basic to this appeal. It reads:

3
"The Board of Appeals erred in stating that the decision of the U. S. Court of Appeals, District of Columbia Circuit, 724 O.G. 432, 114 USPQ 94 is res judicata to the questions involved on this appeal."

4
The first requirement of res judicata is that there be an identity of parties or their privies in the two actions. Commissioner v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898; Russell v. Place, 94 U.S. 606, 24 L.Ed. 214; Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195. In the case at bar, the record before us does not show the required identity of parties or their privies in this action and in the Petrocarbon case. While imagination suggests a possible answer to the question of the relationship between the parties, the requirement for identity of parties in the rule of res judicata is not satisfied by imaginative speculations. "There is not that certainty to every intent, which Lord Coke held necessary to constitute an estoppel, and as observed by this court in Russell v. Place, 94 U.S. 606, 610, `If upon the face of a record anything is left to conjecture as to what was necessarily involved and decided, there is no estoppel in it when pleaded, and nothing conclusive in it when offered as evidence.'" McCarty v. Lehigh Valley R. Co., 160 U.S. 110, 120, 16 S.Ct. 240, 244, 40 L.Ed. 358.

5
On the record before us, there is no affirmative evidence of such identity of the parties as to have warranted the application of res judicata by the board. Such identity or privity, if it exists, must be shown before res judicata is applicable.

6
Since the record in the Patent Office is more complete than that before us, we are remanding this case for a factual determination as to the relationship, if any, between the parties involved in the Petrocarbon case and the party in interest here involved.

7
Remanded for further proceedings consistent with this opinion.

8
Remanded.

9
JOHNSON, J., sat but did not participate in decision.

Notes:

1
 The British reference issued on an application which was the basis for filing the U. S. parent case under 35 U.S.C. § 119. Thus, the effective filing date of the U. S. parent case and of the reference are the same


                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                              JULY 30, 2007
                           No. 06-15408                     THOMAS K. KAHN
                       Non-Argument Calendar                     CLERK
                     ________________________

                         BIA No. A98-718-280

YU LIU,

                                                            Petitioner,

                                 versus

U.S. ATTORNEY GENERAL,

                                                            Respondent.

                     ________________________

                 Petition for Review of a Decision of the
                      Board of Immigration Appeals
                      _________________________

                              (July 30, 2007)

Before ANDERSON, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
       Yu Liu, a citizen of China, seeks asylum in the United States. On January

18, 2005, the IJ denied Liu’s timely application for asylum. Liu waited seventy-

four days before appealing that denial, missing the thirty-day deadline. He offered

no explanation for the delay, and the BIA subsequently dismissed the appeal as

untimely.

       Then, on June 16, 2006, Liu filed another motion with the BIA, this one

timely, which was styled as a motion to reconsider. It attempted to explain why his

initial appeal had been delayed. He also attempted to use that filing to offer

arguments and evidence that had not been put before the IJ. The BIA construed

Liu’s motion to reconsider as a motion to reopen and dismissed it for lack of

jurisdiction.

       Liu now petitions this court for review of the BIA’s dismissal order, arguing

that the BIA has jurisdiction over motions to reconsider “to the extent that the

motion challenges the finding of untimeliness or requests consideration of the

reasons for untimeliness.” In re Lopez, 22 I. & N. Dec. 16, 17 (B.I.A. 1998). He

also argues that we have jurisdiction to review the final order of removal and the

IJ’s denial of his motion for continuance when the case was at that stage. Finally,

Liu asks us to grant him leave to adduce additional evidence pursuant to 8 U.S.C.

§ 2347(c).

                                          2
      We review the BIA’s denial of a motion to reconsider or reopen only for an

abuse of discretion. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir.

2001) (addressing motion to reopen); Assa’ad v. United States Att’y Gen., 332

F.3d 1321, 1341 (11th Cir. 2003) (addressing motion to reconsider). Judicial

review is “limited to determining whether there has been an exercise of

administrative discretion and whether the matter of exercise has been arbitrary and

capricious.” Abdi v. United States Att’y Gen., 430 F.3d 1148, 1149 (11th Cir.

2005) (citation and quotation marks omitted). We review de novo all questions of

subject matter jurisdiction and statutory interpretation. Brooks v. Ashcroft, 283

F.3d 1268, 1272 (11th Cir. 2002).

      Upon review of the record, we conclude that the BIA did not abuse its

discretion in construing Liu’s motion to reconsider as a motion to reopen and

denying it for lack of jurisdiction. There is no question that most of Liu’s motion

is based on new evidence and arguments, which may be properly asserted only in a

motion to reopen. Where the BIA did not issue a decision on the merits,

jurisdiction remains with the IJ, and Liu should have file a motion to reopen in the

Immigration Court, not with the BIA. In re Mladineo, 14 I. & N. Dec. 591, 592

(B.I.A. 1974) (“Where, as here, dismissal by the Board was solely for lack of

jurisdiction, so that we made no adjudication on the merits, the attempted appeal is

nugatory and the decision of the immigration judge remains undisturbed. If
                                          3
thereafter a motion is made to reopen or reconsider that decision, there appears to

be no reason why the immigration judge should not adjudicate it, as he does in

other cases where there was no appeal from his prior order.”).

      Liu’s motion does offer a justification for his untimely appeal—the death of

his mother—and he argues that under the Lopez decision, the BIA had jurisdiction

to consider his explanation for the delayed appeal. Here is the relevant paragraph

of Liu’s motion:

      On February 2, 2006, my mother died in China. (Exhibit D & E) She
      had been sick since 2005. However, she did not tell me how ill she
      was until after my individual hearing in January of 2006; she did this
      to spare me the heartache of her condition. I was devastated by the
      news; my mind has been focused on her and I have neglected my own
      situation. That was why I missed the deadline for the appeal.

Based on this statement, Liu claims that the BIA had jurisdiction to review his

“motion to reconsider” and improperly dismissed it. Lopez, 22 I & N Dec. at 17

(“[T]he Board retains jurisdiction over a motion to reconsider its dismissal of an

untimely appeal to the extent that the motion challenges the finding of untimeliness

or requests consideration of the reasons for untimeliness.”).

      Although it is true that Lopez reserves jurisdiction for the BIA over motions

to reconsider that challenge a finding of untimeliness or request consideration of

proffered reasons for untimeliness, Liu did not file a proper motion to reconsider to

begin with. His motion was styled as such, but it did not sufficiently “specify[] the

                                          4
errors of fact or law in the prior Board decision” nor was it “supported by pertinent

authority,” as required by the regulation. 8 C.F.R. § 1003.2(b)(1). Liu did not

mention his mother’s death in his initial, untimely appeal of the IJ’s decision, filed

three months after she passed away. It was not until he filed the motion to

reconsider, four and a half months after her death, that Liu raised the issue. The

BIA did not make an “error of fact” in its decision to dismiss the appeal because

the fact in question was not before it at the time it did that. Nothing changed

between the BIA’s initial dismissal of the appeal and subsequent dismissal of the

“motion to reconsider.” See In re Cerna, 20 I. & N. Dec. 399, 402–03 (B.I.A.

1991) (“When we reconsider a decision, we are in effect placing ourselves back in

time and considering the case as though a decision in the case on the record before

us had never been entered. . . . in reconsidering the decision we would treat his

status as that which it had been at the time of the initial decision. The very nature

of a motion to reconsider is that the original decision was defective in some

regard.”) The BIA properly construed Liu’s motion as a motion to reopen and

dismissed it for lack of jurisdiction.

      As to Liu’s second claim, we do not have jurisdiction to review either the

IJ’s removal order or the IJ’s prior denial of Liu’s motion for a continuance,

because the petition for review in this court was filed more than thirty days after

the final order of removal. 8 U.S.C. § 1252(b)(1). We have held that “[s]ince the
                                           5
statutory limit for filing a petition for review in an immigration proceedings is

‘mandatory and jurisdictional,’ it is not subject to equitable tolling.” Dakane v.

United States Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005) (citing Stone v.

INS, 513 U.S. 386, 405, 115 S. Ct. 1537, 1549 (1995)). Although Liu filed a

motion to reconsider within thirty days of the BIA’s dismissal of his appeal, that

motion did not toll the limitations period for seeking review from this court. See

id. Therefore, we do not have jurisdiction to review the IJ’s final order or the

denial of Liu’s motion for continuance.

      Nor do we have jurisdiction to grant Liu leave to adduce additional evidence

pursuant to 28 U.S.C. § 2347(c). Congress has expressly prohibited courts from

reviewing final immigration orders from taking additional evidence pursuant to §

2347(c). See 8 U.S.C. § 1252(a)(1). The evidence Liu offers now is the same

evidence contained in his “motion to reconsider,” and it should have been filed

with the Immigration Court within ninety days of the date of entry of the final

order of removal. 8 C.F.R. § 1003.23(b)(1). It was not.

      PETITION DENIED.

                                           6