United States District Court, D. Nevada
VICTORIA L. NELSON, TRUSTEE Plaintiff,
JAMES W. PENGILLY, JAMES W. PENGILLY, P.C., and UNITED STATES OF AMERICA, Defendants.
A. HUBBERT ACTING ASSISTANT ATTORNEY GENERAL
VIRGINIA CRONAN LOWE TRIAL ATTORNEY, TAX DIVISION U.S.
DEPARTMENT OF JUSTICE
W. MYHRE ACTING UNITED STATES ATTORNEY COUNSEL FOR THE UNITED
MOTION FOR RELIEF FROM REQUIREMENT THAT INDIVIDUAL
WITH FULL SETTLEMENT AUTHORITY ATTEND THE SETTLEMENT
A. LEEN UNITED STATES MAGISTRATE JUDGE
United States of America (“United States”), by
and through its undersigned counsel, hereby requests that the
Court excuse the United States from the requirement that an
individual with full settlement authority personally attend
the Settlement Conference, currently set for August 29, 2017,
at 9:30 a.m., in the chambers of United States Magistrate
Judge Peggy A. Leen, Room 3071, Lloyd D. George United States
Courthouse, 333 Las Vegas Boulevard South, Las Vegas, Nevada.
The undersigned trial attorney will be present in person, and
an individual with full settlement authority will be
available by telephone.
AND AUTHORITIES IN SUPPORT OF MOTION
Department's regulations delegate settlement authority
for cases arising under the internal revenue law to a limited
number of senior officials. The regulations are designed to
promote uniformity in settlements across the country and
accountability of the officials acting upon the settlements.
Department of Justice regulations confining settlement
authority to selected officers and officials are valid and
binding. See United States v. U.S. District Court for N.
Mariana Islands, 694 F.3d 1051, 1054-55, nn. 3-4 (9th
Cir. 2012); White v. United States Dep't of
Interior, 639 F.Supp. 82, 88-90 (M.D. Pa. 1986),
aff'd 815 F.2d 693 (3d Cir. 1987); Bohlen v.
United States, 623 F.Supp. 595 (C.D. Ill. 1985). Trial
Attorneys - including the undersigned - have no independent
authority. Problems inherent in requiring government
officials with full settlement authority to attend settlement
conferences were recognized in Section 473(c) of the Judicial
Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat.
5089, 5093 (1990):
Nothing in a civil justice expense and delay reduction plan
relating to the settlement authority provisions of this
section shall alter or conflict with the authority of the
Attorney General to conduct litigation on behalf of the
United States, or any delegation of the Attorney General.
legislative history of the Judicial Improvements Act,
likewise reveals that Congress was aware of, and believed
district courts should account for:
the unique situation of the Department of Justice. The
Department does not delegate broad authority to all trial
counsel, but instead reserves that authority to senior
officials in the United States Attorneys' Offices or in
the litigating divisions in Washington. Clearly the
Department cannot realistically send officials with full
settlement authority to each settlement conference.
H. .R. Rep. No. 101-732, 101st Cong., 2d Sess. 16-17; S. Rep.
No, 101-426, 101st Cong. 2d Sess. 59 (emphasis added).
See also In re Stone, 986 F.2d 898 (5th Cir. 1993).
Advisory Committee Notes on the amendment to Rule 16,
subdivision (c), of the Federal Rules of Civil Procedure,
effective December 1, 1993, explain that:
[p]articularly 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
selection of the appropriate representative should ordinarily
be left to the party and its counsel.
the amount at issue in this case, the Settlement Regulations
vest full authority to compromise the case in Richard R.
Ward, the Chief of the Tax Division's Civil Trial Section
for the Western Region. Mr. Ward may then, in turn, delegate
settlement authority to his Assistant Chief. These
officials' offices are in Washington, D.C., and they
currently supervise 28 trial attorneys and 10 support staff
members. They are directly responsible for several hundred
active cases assigned to trial attorneys in their office,
numerous additional cases pending in the Tax Divisions of the
United States Attorneys' Offices in Los Angeles and San
Francisco, and many more tax cases that are handled by
Assistant United States Attorneys and Special Assistant
United States Attorneys throughout the Western Region.