Without explanation, the U.S. Supreme Court on Monday abruptly discharged New Orleans lawyer A. Gregory Grimsal as special master in Texas v. New Mexico and Colorado, an original jurisdiction case currently before the court.

Judge Michael J. Melloy of the Eighth Circuit. Courtesy photo.

The unusual order from the court said Grimsal, a member at the firm Gordon Arata Montgomery Barnett, was “hereby discharged with the thanks of the court,” and replaced by Senior Judge Michael Melloy of the U.S. Court of Appeals for the Eighth Circuit.

Neither Grimsal nor court officials would comment on the reasoning behind the dismissal.

Stuart Somach, a shareholder at Somach Simmons & Dunn in California, counsel of record for Texas, said the discharge of Grismal “came as a surprise” to him and other parties involved, including the United States, an intervenor in the case.

Late last month, Somach said, Grimsal had set out a schedule for future meetings going into April, an indication that Grimsal was not aware he would be dismissed. “I thought he did a good job,” Somach said, adding he never heard complaints about Grimsal.

But the court's action may have little to do with Grimsal himself.

Instead, it may signal a money-saving return to the court's tradition of appointing senior federal judges as special masters, rather than private practitioners who charge the parties significant fees.

Special masters act as fact-finders for the high court in its constitutionally prescribed role as the first, not last, resort in adjudicating disputes between states. Those disputes usually involve boundaries and water rights, and the special master makes recommendations to the court on how to resolve the disagreements.

The case Grimsal presided over was a wrangle over usage of water from the Rio Grande River. After oral arguments in the case in January, the court issued a ruling on March 5 that was viewed as favorable to Texas and the United States, even as it remanded the dispute back to the special master for further proceedings. The remand meant that a special master was still needed to bring the case to an end, so the court may have felt it was a logical time to make a change.

When a special master comes from private practice, the parties involved divide payment of the legal fees. Grimsal, who was appointed special master in November 2014, received $614,587 in legal fees through March 2017, according to the court's docket for the case. It does not appear from the record that anyone complained about Grimsal's fees.

But when a senior federal judge is the special master, as was usually the case before the last decade or so, their government salaries continued, and parties only had to ante up for reimbursements for printing and other routine costs.

The late chief justice Warren Burger fostered the unwritten rule of hiring senior judges as special masters in the late 1960s.

But the practice faded for two reasons. First, senior judges were needed to help handle the growing federal caseload, quite apart from original cases. Second, because of the judges' ages, the often protracted litigation in original jurisdiction cases sometimes outlasted the special masters.

As a result, the Supreme Court in recent years hired some lawyers in academia or private practice as special masters—most notably Ralph Lancaster Jr., of counsel at Pierce Atwood in Portland, Maine, who has served in four separate cases, more than anyone else in history. In Lancaster's most recent case, Florida v. Georgia, the states split payment of his fees totaling $481,257 from 2014 until now.

But in several other recent cases, the court has begun appointing senior judges again. In Arkansas v. Delaware, and Delaware v. Pennsylvania and Wisconsin, involving the handling of abandoned monetary instruments, the court in March 2017 appointed Senior Judge Pierre Leval of the U.S. Court of Appeals for the Second Circuit. In Mississippi v. Tennessee, a dispute over water rights, the court in 2015 appointed Senior Judge Eugene Siler Jr. of the Sixth Circuit as special master.

 

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