Hershey v. U.S., 89-15262
| Decision Date | 16 May 1991 |
| Docket Number | No. 89-15262,89-15262 |
| Citation | 933 F.2d 1014 |
| Parties | Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Dennis N. HERSHEY, Plaintiff-appellee, v. UNITED STATES of America, Defendant-appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before BEEZER and KOZINSKI, Circuit Judges, and KLEINFELD, District Judge *.
This is an appeal by the United States of an attorney's fee award. The United States sought $47,000 in "responsible person" penalties against Mr. Hershey, on account of unpaid withholding taxes relating to two firms, sent notice of the penalties to an address to which Mr. Hershey had no connection, imposed a lien on his property, and claimed another $125,000 in assessments relating to a third company. Mr. Hershey's attorney laid out the facts in correspondence with the Internal Revenue Service, demonstrating that the service was in error, but could obtain no response for seven months, and then no correction, so a year and a half after his first letter, Mr. Hershey's attorney filed a lawsuit against the United States. The United States at first resisted, but then after seven months of litigation, stipulated to the substantive relief sought. Mr. Hershey's attorney then moved for an award of attorneys fees under 26 U.S.C. Sec. 7430. The United States did not file timely opposition to the motion, though it filed a late opposition. The district court granted the motion and awarded $5,925. The United States now appeals the correctness of this award.
In this case, Mr. Hershey's lawyer, Mr. Lieberman, charged a quite moderate fee in a case which was, for his client, a matter of considerable financial importance. The United States filed no timely opposition to Hershey's motion for attorneys fees. The trial judge nevertheless went to some lengths to study the facts and make findings with particularity, to assure that Hershey's attorney's position was justified. The matter appears to be of no great institutional importance, because the intricate statutory construction necessary for resolution of the dispute became obsolete before the appeal was heard, and the exact statutory language at issue was in effect only from 1986 to 1988. We do not see what institutional concerns explain this appeal of a decision involving a procedural error below by the government, an award for little money that was plainly justified on the facts, and a transitional statutory provision no longer in effect.
The procedural context of this case makes it turn more upon the force of local rules, than construction of the applicable attorneys' fees statute. We do not reach the question of whether, were we to review de novo the district judge's construction of the statute, we would agree with it, or whether we would, under an abuse of discretion standard, agree with his application of the statute to the facts before him. The decision must be affirmed because the district judge's application of local rules regarding absence of timely opposition to a motion, reviewed under an abuse of discretion standard, was within his discretion.
Congress has provided a statutory mechanism for promulgation of local rules by the district courts. This mechanism is carefully circumscribed to assure opportunity for public notice and comment before promulgation, review by the judicial council of the relevant circuit, and availability to the public. 28 U.S.C. Sec. 2071. Federal Rule of Civil Procedure 83 carries out the statutory mandate. Local rules are "laws of the United States." United States v. Hvass, 355 U.S. 570 (1958). Local rules have been the subject of criticism in some areas. See Zambrano v. City of Tustin, 885 F.2d 1473, 1479-80 (9th Cir.1989); Coquillette, Squiers and Subrin, The Role of Local Rules, ABA Journal Jan. 1989, p. 62. The 1988 amendments to 28 U.S.C. Sec. 2071 appear to be designed to eliminate many of the problems giving rise to the criticisms. There can be no doubt about the power of district courts to promulgate and enforce reasonable local rules regulating the times allowed for opposition memoranda on motions, the subject of this case.
An attorney looks in vain in the Federal Rules of Civil Procedure for a rule telling him how much time he has to file an opposition to a motion. Instead, he learns from Rule 78 that he had better check the rules and orders of the district:
To expedite its business, the court may make provision by rule or order for the submission and determination of motions without oral hearing upon brief written statements of reasons in support and opposition.
Most of what really happens on the civil side before the district courts is motion practice. A district judge decides thousands of motions per year, many of them dispositive, and many of them involving genuine, difficult, important issues. The decisions typically shape the litigation context so much that, even when not on their face dispositive, they often have a controlling impact on the settlements made in most civil cases. This busy highway of fast moving motions requires some uniform traffic controls, which the local rules provide.
The district court for the District of Nevada duly promulgated rules governing the matter before us. At Rule 140-4, that court provided for a 15 day period to file an opposition to a motion:
Unless otherwise ordered by the court, an opposing party shall have 15 days after service of the moving party's points and authorities within which to file and serve a memorandum of points and authorities in opposition to the motion.
Federal Rule of Civil Procedure 6(e) adds 3 days when the motion was served by mail. Since Hershey filed his motion for attorney's fees on October 7, 1988, the United States had until October 25 to file its opposition. It filed none. Under Local Rule 140-6, its failure to file an opposition was required to be treated as a consent to the granting motion:
The failure of a moving party to file a memorandum of points and authorities in support of a motion shall constitute a consent to the denial of the motion. The failure of an opposing party to file a memorandum of points and authorities in opposition to any motion shall constitute a consent to the granting of the motion.
The United States argues that this consent rule did not apply, because it filed an opposition, albeit not until November 2, 1988.
This argument overlooks Local Rule 150. If a party seeks to file late, then it must obtain leave from the court:
Subject to the limitations stated in the Federal Rules of Civil and Criminal Procedure the time prescribed for the doing of any act as specified either in these rules or in Federal Rules of Civil and Criminal Procedure may be enlarged by the court by order made before the expiration of such time. The court may upon motion permit such act to be done after the expiration of the specified period where the failure to act was the result of excusable neglect. It shall be the duty of every party, attorney or other person applying to the court for an extension of time under this Rule, whether by motion or stipulation, to disclose the existence of all extensions to do such act which have previously been granted by the court or by the Clerk under the...
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