United States District Court, D. Nevada
September 16, 2014
NORMAN M. BELLI, Plaintiff,
PENNY PRITZLER, Secretary, United States Department of Commerce, Defendant.
DANIEL G. BOGDEN, United States Attorney, District of Nevada JUSTIN E. PINGEL, Assistant United States Attorney, Las Vegas, Nevada, Attorneys for the United States.
MOTION FOR RELIEF FROM REQUIREMENT THAT PERSON WITH SETTLEMENT AUTHORITY ATTEND SETTLEMENT CONFERENCE IN PERSON
PEGGY A. LEEN, Magistrate Judge.
A settlement conference is scheduled in this case for September 19, 2014, at 9:30 a.m. before U.S. Magistrate Judge Peggy A. Leen (ECF #21). The order setting the conference requires a representative of the Government with "authority to settle this matter" to attend this settlement conference (ECF #21, p. 1). For the reasons stated below, the Government respectfully requests that the Court authorize Assistant United States Attorney ("AUSA") Justin E. Pingel to participate in the settlement conference in person while Department of Commerce agency representative(s) participate by telephone. As discussed below, there is good cause for the Court to allow the settlement conference to proceed in this fashion.
A. Timing of Motion
On Friday, September 12, 2014, due to a family emergency, defense counsel sought and received an extension on the time by which Federal Defendant's ENE statement was due, extending that time from Friday, September 12, 2014 at 4:00 p.m. to Monday, September 15, 2014 at 4 p.m. Having received that extension, defense counsel attended to his family emergency and failed to file this Motion for relief by the deadline of one-week prior to the ENE. Defense counsel, having proceeded assuming all items due to the Court were due by Monday, September 15, 2014 at 4 p.m., now asks the Court to excuse this error and consider the Motion for relief.
B. Personal Appearance
The federal government is unlike any other litigant. United States v. United States District Court for the Northern Mariana Islands, 694 F.3d 1051, 1059 (9th Cir. 2012). Because the Government handles a very large number of cases, it would be impractical, if not physically impossible, for those with settlement authority to appear in person at all settlement conferences. Id. at 1059. The Advisory Committee notes that accompany the 1993 amendments to Federal Rule of Civil Procedure 16 acknowledge the unique position that the federal government occupies as a litigant: "Particularly in litigation in which governmental agencies... 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 Government delegates settlement authority to select individuals in order to promote centralized decision-making. Mariana Islands, 694 F.3d at 1059-1060. "Centralized decision making promotes three important objectives. First, it allows the government to act consistently in important cases. Second, centralized decision-making allows the executive branch to pursue policy goals more effectively by placing ultimate authority in the hands of a few officials. Third, by giving authority to high-ranking officials, centralized decision making better promotes political accountability." Id. at 1060 (quoting In re Stone, 986 F.2d 898, 904 (5th Cir. 1993)).
In light of these principles, the Ninth Circuit has determined that the district court should adopt a "practical approach" in deciding whether to require a government representative with full settlement authority to attend a pretrial conference. Id. at 1061 (quoting Stone, 986 F.2d at 904-05). When requested, the district court should consider alternative methods of participation, such as telephonic participation, before requiring in-person participation. Id. Only as a "last resort" should the district court require an official with full settlement authority to participate in a pretrial conference in person. Id. (quoting Stone, 986 F.2d at 905).
The ultimate authority to settle this case rests with the United States Attorney or higher ranking officials in the Department of Justice ("DOJ"), depending upon whether Department of Commerce and DOJ officials agree with the proposed resolution. See 28 C.F.R. Appendix to Subpart Y of Part 0. It is simply not feasible to have the United States Attorney attend each and every settlement conference, and for the reasons noted above, the Government requests that AUSA Pingel appear at the settlement conference instead of the United States Attorney or higher ranking DOJ officials. Similarly, while Department of Commerce officials have tremendous insight into the agency decision making process, they do not have settlement authority. As a result, personal attendance by a Department of Commerce official should not be required and the Government requests that the court authorize appropriate Department of Commerce officials to be present by telephone during the settlement conference, rather than appearing in person. AUSA Pingel will have consulted with appropriate DOJ and Department of Commerce officials before the settlement conference to obtain appropriate settlement authority. Accordingly, the United States respectfully requests that the Court authorize AUSA Pingel to participate in the settlement conference in-person with the appropriate Department of Commerce representative(s) participating via telephone.
District courts throughout the country have routinely allowed federal government agency representatives to participate in settlement conferences by telephone while the assigned AUSA attends in-person and negotiates on behalf of the agency. In fact, the federal government has utilized this approach with much success for many years and, as a result, hundreds of cases involving the federal government have settled.
For the reasons stated above, the Government requests that AUSA Pingel be authorized to appear in person at the settlement conference and that Department of Commerce officials with the necessary settlement power and the ability to make recommendations regarding resolution of the case be allowed to attend the conference via telephone.
IT IS SO ORDERED.