(continued from previous page)

The Department also proposes that this is a case of such technological complexity as to be "exception[al]." So far as the meaning of the consent decree is concerned, that is clearly false; the words are in plain English, and if their meaning is not clear it is not because of some deep technolog- ical issue but because of uncertainties in the purposes of the parties that drafted the decree, the sort of uncertainties that pervade contract actions. As for application of that meaning, we have just stated our interpretation, an interpretation that we regard as grounded, as are the related antitrust doctrines, in a realistic assessment of the institutional limits of the judiciary. Application of our reading of s IV(E)(i) does not require a software expert; it precludes Microsoft from any purely artificial "bolting" of functionalities but is otherwise deferential to entrepreneurs' product design choices.22

More broadly, if La Buy was not complex, with its six defendants and nearly 100 plaintiffs (87 in one suit, six in another), 27 pages of docket entries in one of the cases for preliminary pleas and motions, over 50 depositions, and intri- cate charges of monopolization and Robinson-Patman viola- tions, 352 U.S. at 251-52, we see no reason to think of this case as especially complicated. In fact, it is very doubtful that complexity tends to legitimate references to a master at all. La Buy noted that the complexity of an antitrust case, rather than justifying a reference, "is 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." Id. at 259.

Thus the only remaining question is whether some implicit district court reservation of a power of de novo review of the special master's report, as to both fact and law, could save the reference. First, we find no such implied reservation. The order itself recites that "the Special Master shall receive evidence and legal authority presented by the parties at such times and places, and in such manner as he shall prescribe, and shall propose findings of fact and conclusions of law for consideration by the Court on the issues raised by this case." J.A. 1301 (emphasis added). The Department suggests that the use of "propose" is somehow helpful, and distinguishes the reference from that in Bituminous Coal, which invited "recommended findings of fact and conclusions of law." 949 F.2d at 1166 (emphasis added). The difference in wording is immaterial, and in any event a special master's findings and conclusions are always advisory. Thus, even if we thought

__________
22 To the extent that adjudication may lead the court into deep technological mysteries, we note the court's power under Rule of Evidence 706 to appoint expert witnesses. Whether such an expert is appointed by agreement of the parties or not, the expert's exposure to cross-examination by both sides, see Rule 706(a), makes the device a far more apt way of drawing on expert resources than the district court's unilateral, unnoticed deputization of a vice-judge.

that a reservation of de novo review could save the reference we would have to vacate it, subject to possible re-issuance with an unequivocal commitment to non-deferential review. But we think, in fact, that no such rescue mechanism is available.

Microsoft notes Rule 53(e)(2)'s instruction that in non-jury trials, "the court shall accept the master's findings of fact unless clearly erroneous." (emphasis added). It reads this, as have courts and commentators, as making deferential review mandatory. See, e.g., Williams v. Lane, 851 F.2d 867, 884 (7th Cir. 1988); Apex Fountain, 818 F.2d at 1097; In re Crystal Palace Gambling Hall, 817 F.2d 1361, 1364 (9th Cir. 1987); In re United States, 816 F.2d at 1087, 1088; 9A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure s 2605 at 670 (1995).

The Department counters with a footnote from Stauble to the effect that a district court may refer fundamental issues of liability if he affords de novo review. 977 F.2d at 698 n.13. But compare id. at 698 n.12 (explaining that, because the parties have agreed that if the reference were constitutionally deficient the remedy would be remand for a full trial before the district court, the court will leave for "another day" the possibility that a master's findings on liability might "perhaps be salvaged, even after appeal, by having the district court conduct a deeper, more participatory sort of review."). At most, however, the thought reflected in the Stauble footnote might save a reference from invalidation under the Constitu- tion; that possibility would do little to make it any less the sort of clear abuse of discretion that is fatal under La Buy. The same is equally true of the observation in United States v. Raddatz, 447 U.S. 667, 683 n.11 (1980), saying that the Court itself, in the exercise of its original Article III jurisdic- tion, acts on the basis of special masters' reports. Clearly that practice tells us nothing about the presence of a clear abuse of discretion under Rule 53(b).

We note some ambiguity on this point in our decision in Bituminous Coal. Our concluding directive told the judge to "revise his order of reference ... and to decide de novo, without deferring to a special master, all potentially disposi- tive questions of fact or law." 949 F.2d at 1169. The Department thinks that this implicitly endorsed the possibili- ty of a non-deferential reference. We think not. In Bitumi- nous Coal we rejected the coal operators' suggestion that "any unconsented-to reference would constitute an abuse of judicial power," id. (emphasis added), but our rejection of that broad claim was based not on variations in scope of district court review but on our endorsement of the established and legitimate practice of using unconsented-to references for pretrial preparation or for implementation of remedies, id. And in the introductory summary of our disposition we said that the judge must "revise the order of reference to reserve for himself, and not delegate to the special master, the core function of making dispositive rulings, including findings of fact and conclusions of law on issues of liability." Id. at 1166. In short, when we said in Bituminous Coal that we were granting the writ "not because the district judge simply abused his discretion, but because he has no discretion to impose on parties against their will 'a surrogate judge,' " id. at 1168 (citations omitted), we effectively ruled out noncon- sensual references in nonjury cases except as to peripheral issues such as discovery and remedy. Compare In re Armco, Inc., 770 F.2d 103, 105 (8th Cir. 1985) ("Beyond matters of account, difficult computation of damages, and unusual discov- ery, it is difficult to conceive of a reference of a nonjury case that will meet the rigid standards of the La Buy decision.") (internal quotations omitted).

In short, finding the case devoid of anything remotely "exceptional" within the meaning of Rule 53(b), we believe the reference to a master must be vacated. We do not, accord- ingly, reach Microsoft's claims that the specific referee is biased or has conducted the proceedings on referral improp- erly.

VI.

The preliminary injunction was issued without adequate notice and on an erroneous reading of s IV(E)(i) of the consent decree. We accordingly reverse and remand. The reference to the master was in effect the imposition on the parties of a surrogate judge and either a clear abuse of discretion or an exercise of wholly non-existent discretion. We grant mandamus to vacate the reference. So ordered.

Wald, Circuit Judge, concurring in part and dissenting in part: I depart from my colleagues only as to their interpre- tation of the consent decree, which I believe unnecessarily narrows the scope of the inquiry that the district court may conduct on remand. First, the majority opinion appears to decide that there is only one reasonable interpretation of section IV(E)(i), notwithstanding the fact that we are remand- ing for further factual development that may well be relevant to the most faithful interpretation of the section. Second, although the majority claims to have rooted its interpretation in antitrust law in accordance with the intent of the parties, it interprets section IV(E)(i) in a way that is, in fact, inconsis- tent with at least some governing precedent. For these reasons, I write separately to suggest that there may be an interpretation of section IV(E)(i) more consonant with the intent of the drafters and the weight of antitrust law. If facts are found on remand to support such an alternative interpre- tation, it should not be foreclosed by the majority opinion.

Under the majority's interpretation, the proviso of section IV(E)(i), which says that section IV(E)(i) "in and of itself shall not be construed to prohibit Microsoft from developing inte- grated products," is too safe a harbor with too easily naviga- ble an entrance: So long as Microsoft has created a design to combine functionalities in a way that offers the ultimate user some "plausible" advantage otherwise unavailable, Microsoft may require OEMs to install the resulting creation in its entirety, without fear of running aground on the main prohi- bition of section IV(E)(i) (which prohibits Microsoft from entering into any license agreement "in which the terms of that agreement are expressly or impliedly conditioned upon" the licensing of any "other product"). To my mind, this reading does not impose nearly enough scrutiny on "inte- gration" and renders the central prohibition of section IV(E)(i) largely useless. Cf. Beal Mortgage, Inc. v. FDIC, 132 F.3d 85, 88 (D.C. Cir. 1998) (noting the "cardinal inter- pretive principle that we read a contract to give meaning to all of its provisions and to render them consistent with each other") (internal quotation omitted). The majority's interpre- tation would not, for example, appear to prevent Microsoft from requiring OEMs to license the right to sell computer peripherals (e.g., mice) as a condition of licensing Windows 95 so long as Microsoft had the prescience to include code in Windows 95 that made the cursor more responsive to the end- user's touch than it would be with other mice. I think the majority would agree, however, that under any reasonable reading of section IV(E)(i), the tying of mice to Windows 95 would clearly be prohibited.1 I fail to see why the analysis should be so different for software than for peripherals or why our "evaluation of a claim of integration must be any

__________
1 The majority asserts that if Microsoft tried to bundle its mouse with the operating system, "it would have to show that the mouse/operating system package worked better if combined by Microsoft than it would if combined by OEMs," a test that is "different from showing that the mouse works better with the operating system than other mice do." Majority Opinion ("Maj. Op.") at 23 n.11. But this seems to me to misstate the majority's own test, which asserts that "the act of combination is the creation of the design that knits the two together" and not which firm's employees effect the physical combination. Id. at 28-30. If this is the case, then the majority's test would consider whether the design that "knits together" Microsoft's mouse and the operating system offers advantages unavailable through the combination of a competi- tor's mouse and the operating system. This is, I think, a standard easily met. For instance, Microsoft could develop a mouse with a patented, modestly useful feature, design its operating system to work best when used with a mouse that had this feature, and then require OEMs to buy the two products together. The mouse and the operating system would qualify as integrated under the majori- ty's test. The majority says that IE 4.0 and Windows 95 are integrated because the "full functionality of the operating system when upgraded by IE 4 and the 'browser functionality' of IE 4 ... do not exist separately." Id. at 29. Likewise, the full functionality of the patented mouse and Microsoft's mouse-friendly operating system would not exist separately; the two would be designed for each other, and their full functionality would only exist when combined. Thus, under the majority's test, Microsoft would have avoided the effect of section IV(E)(i) altogether, even if its patented mouse was of little extra value to the user. I would not think that the proviso was intended to swallow the consent decree in this way.

more narrow and deferential," Maj. Op. at 25, for software than for other computer-related products. See, e.g., Fire- stone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 112 (1989) (courts construe contractual provisions "without deferring to either party's interpretation"). Our role, after all, is to interpret the consent decree as we would a contract: in a manner that is "grounded in the text of the agreement and contemporaneous understandings of its purposes, not in our own conception of wise policy." United States v. Western Elec. Co., Inc., 846 F.2d 1422, 1427 (D.C. Cir. 1988).