United States v. Usdc - Nmi

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Petitioner, No. 11-72940
v. D.C. No.
1:09-cv-00033-ARM
UNITED STATES DISTRICT
COURT FOR THE NORTHERN MARIANA  ORDER
ISLANDS, AMENDING
Respondent, OPINION AND
AMENDED
JOHN K. BALDWIN, OPINION
Real Party in Interest.

Appeal from the United States District Court
for the Northern Mariana Islands
Ramona V. Manglona, Chief District Judge, Presiding
Argued and Submitted
June 21, 2012—Pasadena, California
Filed September 12, 2012
Amended October 16, 2012
Before: Mary M. Schroeder, Edward Leavy, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton
12361
UNITED STATES v. USDC - NORTHERN MARIANA IS. 12363
COUNSEL
Tamara W. Ashford, Deputy Assistant Attorney General, Gil-
bert S. Rothenberg (argued), Michael J. Haungs, and Ivan C.
12364 UNITED STATES v. USDC - NORTHERN MARIANA IS.
Dale, Attorneys, Tax Division, Department of Justice, Wash-
ington, D.C., for the petitioner.
Deborah Deitsch-Perez (argued), Tory Cronin, Lackey Hersh-
man, LLP, Dallas, Texas, attorneys for real party in interest
John K. Baldwin.
ORDER
This Court’s opinion, filed September 12, 2012, is amended
by deleting the following two sentences on page 11159: “For
example, the Attorney General has the discretion to decide
which attorney will appear as counsel to represent the govern-
ment in court. But that does not mean that he has the authority
to require the court to accept the appearance as counsel of
someone who is not admitted to the bar.”
The opinion is also amended by replacing the next sentence
“Nor does the Attorney General’s authority to conduct litiga-
tion permit him to tell the court when a hearing will be held
or how to manage the proceedings.” with “The Attorney Gen-
eral’s authority to conduct litigation does not, for example,
permit him to tell the court when a hearing will be held.”
OPINION
CLIFTON, Circuit Judge:
The government has filed a petition for a writ of manda-
mus, requesting that this court vacate four district court orders
directing the government to be represented at an initial court
settlement conference by a representative with full authority
to settle a civil tax refund lawsuit. We hold that the district
court has the authority to order parties, including the federal
government, to participate in mandatory settlement confer-
UNITED STATES v. USDC - NORTHERN MARIANA IS. 12365
ences, but that the exercise of such authority is subject to
review for abuse of discretion. Based on the facts of this case,
we conclude that the district court abused its discretion in
ordering a government representative with full settlement
authority to appear at an initial settlement conference.
Accordingly, we grant mandamus relief and direct the district
court to vacate the disputed orders.
I. Background
The current dispute arises in the context of a multi-million
dollar tax refund case pending in the District Court for the
Northern Mariana Islands. Following disallowance by the
Internal Revenue Service of certain deductions, real party in
interest John K. Baldwin paid a federal income tax deficiency
and then filed a lawsuit seeking to recover in excess of $5
million in taxes, penalties, and interest.
The district court has a local rule that provides that “[t]he
court will routinely set a date for a settlement conference” in
civil cases. D. N. Mar. I. Civ. R. 16.2CJ(e)(5). A subpart of
that rule is explicit in mandating attendance at the conference
by each party through a representative with “full authority” to
settle the litigation: “Each party shall be required to attend the
settlement conference, either personally or through a repre-
sentative with full authority to participate in settlement nego-
tiations and to effect a complete compromise of the case.” D.
N. Mar. I. Civ. R. 16.2CJ(e)(5)(a).1
The district court issued an order on September 2, 2011,
scheduling a settlement conference in Coeur d’Alene, Idaho,
1
Other districts within this circuit have adopted similar local rules
requiring parties to be represented at court settlement conferences by a
representative with full authority to settle a matter. See, e.g., C.D. Cal.
Civ. R. 16-15.5(b); E.D. Cal. Civ. R. 270(a), (f)(2); N.D. Cal. ADR R. 7-
4; S.D. Cal. Civ. R. 16.1(c)(1); S.D. Cal. Civ. R. 16.3(b); D. Guam Civ.
R. 16.6; D. Haw. Civ. R. 16.5(a), (b)(2); D. Nev. Civ. R. 16-6.
12366 UNITED STATES v. USDC - NORTHERN MARIANA IS.
before Senior District Judge Alex Munson, serving as settle-
ment judge.2 This was to be the first settlement conference
held by the court in this case.
Five days after the order was issued, the government
moved for relief from the requirement to have a person with
“full” settlement authority attend the settlement conference.
The government stated that, because of the size of Baldwin’s
claim, the lowest-ranking official authorized to settle this case
was the officer in charge of the Tax Division of the Depart-
ment of Justice, the Assistant Attorney General of the Tax
Division (“Assistant Attorney General”),3 and her authority is
limited by the requirement that the Congressional Joint Com-
2
After serving as the district judge for the District Court of the Northern
Mariana Islands since 1988, Judge Munson retired in 2010, but he con-
sented to being recalled to serve temporarily as a judge whenever neces-
sary for the proper dispatch of court business. See 48 U.S.C. § 1821(b)(2).
This case is assigned to District Judge Ramona V. Manglona, and Judge
Munson’s role is limited to his service as a settlement judge. Judge Mun-
son still has authority to enter orders. See id.After retiring, Judge Munson moved from Saipan to Idaho. This is the
likely reason that Coeur d’Alene was designated as the location for this
settlement conference. The parties are principally represented by counsel
based in Dallas and Washington, D.C. The location of the conference at
a location outside the District of the Northern Mariana Islands is not in
dispute.
3
The position of Assistant Attorney General for the Tax Division was
at that time vacant, so the authority to settle was delegated to the Principal
Deputy Assistant Attorney General (“Principal Deputy”). See Principal
Deputy Delegation, Department of Justice, Tax Division, Directive No.
142, http://www.justice.gov/tax/readingroom/2008ctm/CTM%20Chapter
%203.htm#Directive No. 142 (last visited August 8, 2012). As a result, the
government’s motions in the district court and its initial papers in this
court referred to the Principal Deputy as the lowest-ranking official autho-
rized to settle this case. The appointment of Kathryn Keneally to serve as
the Assistant Attorney General for the Tax Division was subsequently
confirmed by the Senate and she assumed that position while this matter
was pending in this court, so the Assistant Attorney General is again the
lowest-ranking official with settlement authority. For simplicity, we will
only refer to that position.
UNITED STATES v. USDC - NORTHERN MARIANA IS. 12367
mittee on Taxation (“Joint Committee”) reviews and has no
adverse criticism to the proposed refund or settlement.4 See 28
C.F.R. §§ 0.160-.0162; see also Rules and Regulations, 76
Fed. Reg. 15212-02 (Mar. 21, 2011). The government argued
that the personal participation of the Assistant Attorney Gen-
eral should not be required and proposed instead that the set-
tlement conference be personally attended by the trial
attorneys with primary responsibility for the handling of the
case, with the Section Chief of the Tax Division’s Office of
Review (“Section Chief”) available for consultation by tele-
phone during the settlement conference. The Section Chief is
authorized to accept offers in compromise in cases against the
United States in which the amount of the government’s con-
cession, exclusive of statutory interest, does not exceed $1.5
million. See Rules and Regulations, 76 Fed. Reg. 15212-02
(Mar. 21, 2011).
The district court denied the government’s request for relief
from the Local Rule in an order filed on September 9, 2011.
The order, entered by Judge Munson, observed that the gov-
ernment “made some reasonable arguments in support of its
position,” but concluded that “in twenty-nine years of facili-
tating settlement negotiations, the undersigned has never
brought about a settlement agreement without having present
on each side a person with full authority to effect such an
agreement. This is the determinative fact. As such, the
Request is hereby DENIED.”
4
The Assistant Attorney General can only accept an offer in compro-
mise in excess of $2 million if the Joint Committee indicates that it has
no adverse criticism of the proposed settlement. See 26 U.S.C. § 6405(a)
(no refund in excess of $2 million shall be made until after the expiration
of 30 days from the date the report is submitted to the Joint Committee);
see also 28 C.F.R. § 0.160(b). If the IRS opposes or the Joint Committee
has an adverse criticism of the proposed settlement, then only the Asso-
ciate Attorney General can authorize the settlement. See 28 C.F.R.
§§ 0.160(b), (d), 0.161(b). The Assistant Attorney General may, in some
circumstances, redelegate his or her settlement authority, provided that the
amount of the concession, exclusive of interest, is less than $2 million. See
28 C.F.R. § 0.168(a).
12368 UNITED STATES v. USDC - NORTHERN MARIANA IS.
The next day, the government filed an emergency motion
for relief from the September 9, 2011 order, reiterating its
proposed compromise to have the trial attorneys personally
attend the settlement conference and to have the Section Chief
available by telephone for consultation. The district court
again denied this proposal, stating, in an order by Judge Mun-
son filed on September 13, 2011, that a “person with authority
to recommend any settlement reached by the parties to the
Congressional Joint Committee on Taxation must be present
at the settlement conference.”
The government filed another emergency request for relief
the next day, this time directing its motion at Judge
Manglona, as the trial judge for this action.5 The government
also sought clarification of the district court’s September 13,
2011 order directing a “person with authority to recommend
any settlement reached by the parties to the Congressional
Joint Committee on Taxation” attend the settlement confer-
ence, because, pursuant to regulations, the trial attorneys
could “recommend” any settlement but, because the settle-
ment may involve amounts in excess of $2 million, settlement
of the case could require approval of the Assistant Attorney
General.
That same day, September 14, 2011, Judge Manglona
issued an order denying the government’s motion. The order
stated that the government did not need an order issued by
her, as the trial judge, in order to submit a petition for a writ
of mandamus to this court.6 Judge Manglona also declined to
interpret the supposedly ambiguous phrase in the September
13, 2011 order issued by Judge Munson.
5
It appears that the government directed its September 14, 2011 motion
to Judge Manglona because Federal Rule of Appellate Procedure 21, con-
cerning writs of mandamus and other extraordinary writs, references the
“trial court” and the “trial-court judge.”
6
No party has argued to the contrary or raised any such objection to our
consideration of the current petition.
UNITED STATES v. USDC - NORTHERN MARIANA IS. 12369
On October 3, 2011, the government filed in this court an
emergency petition for a writ of mandamus and an emergency
motion to stay the settlement conference, then scheduled for
October 17, 2011. Before this court could act, the government
filed the next day in the district court an emergency motion
to stay the provision of the Local Rule and the district court’s
three September 2011 orders. In response to the government’s
motion to stay, the district court took the settlement confer-
ence off calendar and ordered additional briefing on the
motion.
The district court entered an order that denied the govern-
ment’s motion to stay and reset the settlement conference for
February 29, 2012. The order, issued by Judge Munson on
January 6, 2012, stated that, for the government, “attendance
by a person with authority to recommend any settlement
reached by the parties to the Congressional Joint Committee
on Taxation shall be deemed to comply with this order.”7 The
district court rejected the government’s suggestion that it
would be sufficient if an official with the requisite authority
would be available by telephone because “[i]f the claim is
large enough to require the official’s signoff, it is large
enough to require the official’s presence at the settlement con-
ference.” The district court stated that it would entertain sug-
gestions of other dates and venues other than Coeur d’Alene,
Idaho in order to accommodate the parties.8
7
Although the language used in the January 6, 2012 order was essen-
tially the same as the language in the September 13, 2011 order, which the
government described as “ambiguous” in the motion presented to Judge
Manglona on September 14, 2011, no party has taken the position before
us that the district court order would be satisfied by the appearance of gov-
ernment trial attorneys who could “recommend” a settlement, if approval
by someone higher up would be required for the proposed settlement to
be sent to the Joint Committee. It is plain that the district court wanted to
see someone on behalf of the government who could approve a proposed
settlement up to the point of presenting it to the Joint Committee.
8
The January 6, 2012 district court order was issued after the govern-
ment filed its petition with this court, so it is not mentioned in the October
3, 2011 filing. The parties agree that the January 6, 2012 order is the cur-
rently operative order in this case and that the government’s petition
should be understood to cover that order, as well.
12370 UNITED STATES v. USDC - NORTHERN MARIANA IS.
After the entry of the January 6, 2012 district court order
and our subsequent receipt of a response to the petition from
Baldwin and a reply from the government, we stayed the set-
tlement conference scheduled for February 29, 2012 “without
prejudice to the district court ordering a new settlement con-
ference without the requirement that the parties have a repre-
sentative with full settlement authority attend the conference
or for petitioner United States of America, at least a person
‘with authority to recommend any settlement reached by the
parties to the Congressional Joint Committee on Taxation.’ ”
We also set the matter for oral argument, at which time we
were advised that no settlement conference has been con-
ducted and that the tax refund case remains pending in district
court.
II. Discussion
A. Mandamus Relief
We determine whether a writ of mandamus should be
granted on a case-by-case basis, weighing five factors out-
lined in Bauman v. United States District Court, 557 F.2d
650, 654-55 (9th Cir. 1977). See Cole v. U.S. Dist. Court, 366
F.3d 813, 816-17 (9th Cir. 2004). The five guidelines identi-
fied in Bauman to determine whether mandamus is appropri-
ate are: (1) whether the petitioner has no other adequate
means, such as direct appeal, to obtain the desired relief; (2)
whether the petitioner will be damaged or prejudiced in a way
not correctable on appeal; (3) whether the district court’s
order is clearly erroneous as a matter of law; (4) whether the
district court’s order is an oft-repeated error or manifests a
persistent disregard of the federal rules; and (5) whether the
district court’s order raises new and important problems or
issues of first impression. See Bauman, 557 F.2d at 654-55.
In opposing mandamus relief, Baldwin does not appear to
dispute that the government does not have another means to
obtain review of or relief from the orders at issue except
UNITED STATES v. USDC - NORTHERN MARIANA IS. 12371
through mandamus, so the first two factors are satisfied.
Though it is not clear how often this problem is actually pre-
sented in other cases, the element raised by the fourth factor,
we recognize that there are many cases across the country
involving substantial financial claims against the federal gov-
ernment, including many substantial claims for tax refunds (as
will be noted in more detail below). Because many federal
district courts have local rules requiring settlement confer-
ences to be attended by representatives with settlement
authority, we conclude that the potential problem presented to
us here is significant enough to justify review on mandamus.
The fifth factor appears to be satisfied as well, as it does not
appear that our court has previously addressed the questions
presented by the government’s petition.
[1] The remaining factor, whether the district court’s order
is clearly erroneous as a matter of law, is the only factor seri-
ously disputed here. We have held that a district court’s ruling
is “clearly erroneous” under the third Bauman factor when we
have “ ‘a definite and firm conviction that a mistake has been
committed.’ ” Cohen v. U.S. Dist. Court, 586 F.3d 703, 708
(9th Cir. 2009) (quoting Concrete Pipe & Prods. v. Constr.
Laborers Pension Trust, 508 U.S. 602, 623 (1993)). We rec-
ognize that to be a standard that affords significant deference
to the district court’s decision. Nonetheless, after reviewing
the circumstances and the arguments, we have been left with
a definite and firm conviction that a mistake was committed
here and that the district court’s order represented an abuse of
discretion. We thus grant the requested mandamus relief.
B. The Contentions in the Petition
The government’s petition presents two questions, which it
identifies as follows: (1) whether the district court has the
authority to direct that the United States, its agencies, or its
officers sued in their official capacities must appear at routine
settlement conferences through a high-level official who has
full settlement authority over the claim in dispute; and (2)
12372 UNITED STATES v. USDC - NORTHERN MARIANA IS.
whether, if such authority exists, it has been abused under the
circumstances of this case. As explained below, we conclude
that the district court had the authority to require a high-level
official to participate in a settlement conference in appropriate
circumstances, but in the circumstances of this case, the order
entered by the court constituted an abuse of discretion.
C. The District Court’s Authority
[2] We conclude that the district court has broad authority
to compel participation in mandatory settlement conference.
Such authority arises from at least three different sources.
[3] First, Rule 16(c)(1) of the Federal Rules of Civil Proce-
dure provides that “[i]f appropriate, the court may require that
a party or its representative be present or reasonably available
by other means to consider possible settlement.”9
[4] Second, the Civil Justice Reform Act of 1990 autho-
rizes a district court to provide for mandatory settlement con-
ferences as part of a civil justice and delay reduction plan.
The statute lists litigation management techniques which the
court should consider and may implement, including “a
requirement that, upon notice by the court, representatives of
the parties with authority to bind them in settlement discus-
sions be present or available by telephone during any settle-
ment conference.” 28 U.S.C. § 473(b)(5). That authority does
not exclude cases involving the federal government, though
Congress was certainly aware that the government is, by a
wide margin, the most frequent litigant in federal court. See
United States v. Mendoza, 464 U.S. 154, 159 (1984) (“It is not
open to serious dispute that the government is a party to a far
9
See also Fed. R. Civ. P. 16 Advisory Committee Note, 1993 Amend-
ments (“The explicit authorization in the rule to require personal participa-
tion in the manner stated is not intended to limit the reasonable exercise
of the court’s inherent powers or its power to require party participation
under the Civil Justice Reform Act of 1990.”) (citations omitted).
UNITED STATES v. USDC - NORTHERN MARIANA IS. 12373
greater number of cases on a nationwide basis that even the
most litigious private entity . . . .”).
[5] Third, the district court has inherent power “to control
the disposition of the causes on its docket with economy of
time and effort for itself, for counsel, and for litigants.” Lan-
dis v. N. Am. Co., 299 U.S. 248, 254 (1936); see also In re
Stone, 986 F.2d 898, 903 (5th Cir. 1993) (“subject to the
abuse-of-discretion standard, district courts have the general
inherent power to require a party to have a representative with
full settlement authority present- or at least reasonably and
promptly accessible- at pretrial conferences”); In re Novak,
932 F.2d 1397, 1405, 1407 (11th Cir. 1991); G. Heileman
Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 648, 653
(7th Cir. 1989) (en banc).10
[6] We are not persuaded by the government’s argument
that the district court lacked authority to issue its orders
because it would interfere with the exclusive authority
assigned to the Attorney General by Congress to conduct liti-
gation on behalf of the federal government. See, e.g., 28
10
We note that the District Court for the Northern Mariana Islands is not
a court created under Article III of the Constitution but is rather an Article
IV territorial court. See Nguyen v. United States, 539 U.S. 69, 72-73
(2003). The government, while noting its awareness of the distinction, has
not argued that this district court has less inherent power to manage its
docket, including authority to order settlement conferences, than other dis-
trict courts. We similarly see no reason why the authority of the District
Court for the Northern Mariana Islands has, in this regard, any less author-
ity than Article III district courts. The statute that created the court specifi-
cally provides, as a general proposition, that “the provisions of part II of
Title 18 and of Titles [sic] 28, the rules of practice and procedure hereto-
fore or hereafter promulgated and made effective by the Congress or the
Supreme Court of the United States pursuant to Titles 11, 18, and 28 shall
apply to the District Court for the Northern Mariana Islands and appeals
therefrom.” 48 U.S.C. § 1821(c); see also Fleming v. United States, 279
F. 613 (9th Cir. 1922) (holding that non-Article III territorial courts pos-
sess at least the “inherent power” to compel obedience to its orders by the
power of contempt).
12374 UNITED STATES v. USDC - NORTHERN MARIANA IS.
U.S.C. §§ 510, 516-17, 519; 26 U.S.C. § 7122(a). As noted
above, Congress did not exempt the government, as a litigant,
when it authorized federal courts to order settlement confer-
ences. The Attorney General’s authority to manage the federal
government’s litigation is not infringed by the court’s man-
agement of its caseload or calendar. The Attorney General’s
authority to conduct litigation does not, for example, permit
him to tell the court when a hearing will be held. The delega-
tion to the Attorney General of authority to conduct litigation
concerns the allocation of responsibility, within the govern-
ment, for representing the United States as a party. The orders
in dispute do not interfere with the Attorney General’s author-
ity to determine who will appear as counsel for the United
States. They concern the appearance of an appropriate repre-
sentative of a party at a settlement conference, a person who
might not be an attorney at all. When the United States stands
as a party before the court, the authority of the Attorney Gen-
eral is no greater than that of any other party. The Attorney
General is not independent of the court’s authority, including
its authority over a settlement conference. See In re Stone,
986 F.2d at 903 n.5 (“[The government] makes the bold asser-
tion that a court may never compel the Department of Justice
to alter its regulations governing its procedures for handling
litigation. We disagree. If that were the case, the executive
branch could use the courts as it pleased. The executive
branch is not above the law.”).
D. Abuse of Discretion
The authority of the district court is not limitless, however.
It is subject to review for abuse of discretion. See Roadway
Express, Inc. v. Piper, 447 U.S. 752, 764 (1980) (“Because
inherent powers are shielded from direct democratic controls,
they must be exercised with restraint and discretion.”); In re
Stone, 986 F.2d at 903 n.3 (citing cases and stating that “such
inherent power, through broad, is subject to the abuse-of-
discretion standard”); Heileman, 871 F.2d at 653 (same); In
re United States, 149 F.3d 332, 333 (5th Cir. 1998) (same).
UNITED STATES v. USDC - NORTHERN MARIANA IS. 12375
We conclude that, in the circumstances of this case, the dis-
trict court did abuse its discretion in ordering a government
representative with full settlement authority to appear at the
first settlement conference to be held with the court.
The most important reason for our conclusion is that the
federal government, though not independent of the court’s
authority, is also not like any other litigant. See, e.g., Men-
doza, 464 U.S. at 159 (noting that the “ ‘Government is not
in a position identical to that of a private litigant’ ” (quoting
INS v. Hibi, 414 U.S. 5, 8 (1973))). The Department of Justice
in general and its Tax Division in particular are responsible
for a very large number of cases. The government reported to
us that, as of January 9, 2012, the Tax Division had 549 civil
cases pending in which the amount in controversy exceeded
$2 million (exclusive of interest), the current case being just
one of them. It further reported that the Tax Division receives
a new civil case involving more than $2 million, on average,
every third business day. The Assistant Attorney General is
the lowest-ranking government official with authority to settle
those claims under the Department’s regulations. For her to
prepare for and appear at all settlement conferences for all of
those cases would be highly impractical, if not physically
impossible.
[7] Yet the government has good reasons for not delegat-
ing greater authority to settle to more government attorneys or
officials. As the Fifth Circuit noted in In re Stone:
The purpose of the structure established by the
Attorney General is to promote centralized decision-
making on important questions. The Supreme Court
has recognized the value of such centralized deci-
sionmaking in the executive branch. [United States
ex rel. Touhy v. Ragen, 340 U.S. 462, 468 (1951).]
Centralized decisionmaking promotes three
important objectives. First, it allows the government
12376 UNITED STATES v. USDC - NORTHERN MARIANA IS.
to act consistently in important cases, a value more
or less recognized by the Equal Protection Clause.
Second, centralized decisionmaking allows the exec-
utive branch to pursue policy goals more effectively
by placing ultimate authority in the hands of a few
officials. See Heckler v. Chaney, 470 U.S. 821, 831
(1985) (litigants should not interfere with agency
discretion, as that could impede with agency policy
goals). Third, by giving authority to high-ranking
officials, centralized decisionmaking better promotes
political accountability.
986 F.2d at 904. The congressional oversight mandated by
statute through reports to the Joint Committee further illus-
trates the importance of centralizing the authority to settle
substantial matters on behalf of the federal government.
The Advisory Committee Notes issued in connection with
the 1993 amendments to Rule 16 of the Federal Rules of Civil
Procedure, including the addition of express authority to com-
pel participation in a settlement conference, noted above,
reflect concern for the treatment of governmental and institu-
tional parties:
Particularly in litigation in which governmental
agencies or large amounts of money are involved,
there may be no one with on-the-spot settlement
authority, and the most that should be expected is
access to a person who would have a major role in
submitting a recommendation to the body or board
with ultimate decision-making responsibility.
The advisory committee’s observation should not be read to
limit the court’s authority to require meaningful participation
by a party in a settlement conference, but it suggests that the
court’s authority should be exercised with awareness of the
institutional posture of the particular parties involved. That is
UNITED STATES v. USDC - NORTHERN MARIANA IS. 12377
true, perhaps most of all, when the party is the federal govern-
ment.
That the settlement conference that is the subject of the
challenged orders is the first settlement conference to be held
by the court in this case is another important factor behind our
conclusion. There may be a time in the course of settlement
negotiations when a settlement judge may determine that the
personal participation of the person able to make a final deci-
sion is vital, but this case does not appear to reflect any such
assessment, at least not based on anything particular regarding
this case and the parties involved. This settlement conference
was called as a matter of routine practice under the district
court’s local rules. As it was the first conference to be held
in the case, the court did not have a basis to conclude that the
direct involvement of the critical decisionmaker for the fed-
eral government was needed to achieve a settlement.
We do not say that the first settlement conference in a case
is unimportant and that parties should be free to take it lightly.
Especially in these circumstances, where the parties and attor-
neys are far-flung and substantial travel will be required by
many people to attend the conference, it should be taken very
seriously. The court may impress that message on the parties.
But the court should take the parties’ circumstances into con-
sideration as well.
The premise underlying the district court’s orders, or the
“determinative fact,” in the words of the September 9, 2011
order, was the observation by Judge Munson that he had, in
twenty-nine years of judicial experience, “never brought
about a settlement agreement without having present on each
side a person with full authority to effect such an agreement.”
While we have great regard for Judge Munson, that has not
been the experience of the members of this panel. Nor does
that appear to be the history of the Tax Division. The govern-
ment reports that the Tax Division has settled thousands of
cases without high-ranking officers personally attending set-
12378 UNITED STATES v. USDC - NORTHERN MARIANA IS.
tlement conferences, and we have no reason to doubt that rep-
resentation. If the government’s track record were to the
contrary, federal courts all over the country would be well
aware of that fact and would likely have commented loudly
on it. We have not heard such comments, and we have not
seen a disproportionate number of cases involving the Tax
Division on our own calendar.
[8] We agree with the Fifth Circuit that district courts
should take a “practical approach” in determining whether to
require the government to send a representative with full set-
tlement authority to a pretrial conference and should consider
less drastic steps before doing so. In re Stone, 986 F.2d at
904-05.11 The district court should, for example, consider
whether a representative may be effectively available as
needed during a settlement conference without physical atten-
dance. The relevant provision in the Civil Justice Reform Act
of 1990, 28 U.S.C. § 473(b)(5), refers expressly to a represen-
tative being “available by telephone,” and Rule 16(c)(1)
speaks of a representative being “reasonably available by
other means.” Participation in a settlement conference by tele-
phone or teleconference may be a practical alternative.
11
For example, the District Court for the District of Alaska delineated
the “less drastic steps” that it considered in one recent case prior to requir-
ing a government representative with full settlement authority to be pres-
ent, including:
(1) conducting early settlement discussions to determine what the
parties needed in order to be in a position to fully evaluate the
case; (2) modifying the pretrial motion schedule to give the par-
ties sufficient time to resolve the substantive motions before the
scheduled conference; (3) requiring the United States Defendants
to identify the person or persons who hold such authority and
directing those persons to consider settlement in advance of the
conference; and (4) arranging for the settlement conference to
occur after the District Court ruled on the motions, with sufficient
time (almost one month) for the United States Defendants to
obtain settlement authority before the scheduled conference.
Dietzmann v. United States, No. 3:09-CV-0019-RJB, 2010 WL 5067901,
at *4 (D. Alaska Dec. 3, 2010).
UNITED STATES v. USDC - NORTHERN MARIANA IS. 12379
If it turns out that the district court’s “reasonable efforts”
to conduct settlement efforts are “thwarted because the gov-
ernment official with settlement authority will not communi-
cate with the government counsel or the court in a timely
manner,” then we also agree with the Fifth Circuit that “the
court, as a last resort, can require the appropriate officials
with full settlement authority to attend a pretrial conference.”
In re Stone, 986 F.2d at 905. But that should not be the first
step.
III. Conclusion
[9] We acknowledge the district court’s intention to create
a conducive environment for settlement discussions but, at
this stage of this case, where there has been no record of dila-
tory or evasive tactics by either party, the district court’s
orders were not justified. We conclude that, based on the facts
of this case, the district court abused its discretion in ordering
a government representative with full settlement authority to
appear in person for an initial settlement conference. We grant
the writ of mandamus and direct the district court to vacate
the September 9, 2011, September 13, 2011, September 14,
2011, and January 6, 2012 orders.
PETITION FOR WRIT OF MANDAMUS GRANTED.