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Cellemme v. Sessions

United States District Court, D. Nevada

March 27, 2017

DREE ANN CELLEMME, Plaintiff,
v.
JEFF SESSIONS, ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE; and FEDERAL BUREAU OF INVESTIGATION, Defendants.

          STEVEN W. MYHRE Acting United States Attorney

          HOLLY A. VANCE Assistant United States Attorney

          UNOPPOSED MOTION FOR RELIEF FROM REQUIREMENT THAT PERSON WITH SETTLEMENT AUTHORITY ATTEND SETTLEMENT CONFERENCE EXPEDITED REVIEW REQUESTED

          Peggy A. Leen United States Magistrate Judge

         An early neutral evaluation (“ENE”) session is scheduled in this case for April 13, 2017, at 1:30 p.m. before United States Magistrate Judge Peggy A. Leen. (ECF No. 18). The order setting the ENE conference requires a government representative with “full [settlement] authority” to attend the conference. (ECF No. 18 p. 1). For the reasons argued below, Defendants respectfully request that the Court authorize Assistant United States Attorney (“AUSA”) Holly A. Vance to participate in the settlement conference in person as the sole representative for the government. Plaintiff Dree Ann Cellemme (“Plaintiff”) was contacted and has advised that she has no objection to Defendants' request.

         ARGUMENT

         The federal government is unlike any other litigant. U.S. v. U.S. Dist. Court for the N. 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 prepare for C and appear at C all settlement conferences. Id. 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. U.S. Dist. Court for the N. Mariana Islands at 1059-6060. Centralized decision-making promotes three important government objectives. Id. First, it allows the government to act consistently in important cases. Id. 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. Id. Third, by giving authority to high-ranking officials, centralized decision-making better promotes political accountability. Id. 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 pre-trial conference. According to the Ninth Circuit, only as a “last resort” should the district court require an official with full settlement authority to participate in a pre-trial conference in person. Id.

         Consistent with U.S. Dist. Court for the N. Mariana Islands, the government routinely requests that the district court allow the line attorney assigned to the case to appear in person at an ENE conference as the sole representative for the government. Before the settlement conference, that line attorney discusses the case thoroughly with those government representatives who do have settlement authority in order to determine the range of settlement offers that would be acceptable to the government. This approach has not hampered settlement discussions or created an impediment to settlement in the hundreds of ENE conferences in which the government has participated over the years. In fact, hundreds of cases involving the government have settled over the years utilizing this approach. Accordingly, Defendants respectfully request that the Court authorize AUSA Vance to participate in the settlement conference as the sole representative for the government. Defense counsel contacted Plaintiff who advised that she does not object to Defendants' request. (Vance Decl ¶ 3).

         CONCLUSION

         For the reasons argued above, Defendants respectfully request that the Court grant Defendants' Unopposed Motion for Relief from Requirement that Person with Settlement Authority Attend Settlement Conference.

         IT IS SO ORDERED.

         DECLARATION OF HOLLY A. VANCE

         I, Holly A. Vance, hereby declare as follows pursuant to 28 U.S.C. § 1746:

         1. I serve as an Assistant United States Attorney with the Department of Justice, United States Attorney's Office in Reno, Nevada. I have ...


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