United States v. U.S. Dist. Court for the Dist. of Nev. (In re United States)
| Decision Date | 29 June 2015 |
| Docket Number | No. 14–70486.,14–70486. |
| Parties | In re UNITED STATES of America, United States of America, Petitioner, v. United States District Court for the District of Nevada, Reno, Respondent, Paul J. Malikowski ; Bank of America, NA, Real Parties in Interest. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Kathryn Keneally, Assistant Attorney General; Tamara W. Ashford, Principal Deputy Assistant Attorney General; Gilbert S. Rothenberg (argued), Michael J. Haungs, and Ivan C. Dale, Attorneys, Tax Division, United States Department of Justice, Washington, D.C., for Petitioner.
No appearance for Respondent.
No appearance for Real Parties in Interest.
On Petition for Writ of Mandamus to the United States District Court for the District of Nevada, Robert Clive Jones, District Judge, Presiding. D.C. No. 3:13–cv–00470–RCJ–VPC.
Before: J. CLIFFORD WALLACE, MILAN D. SMITH, JR., and MICHELLE T. FRIEDLAND, Circuit Judges.
Opinion by Judge MILAN D. SMITH, Jr. ; Concurrence by Judge WALLACE.
The United States has filed a petition for a writ of mandamus challenging a district judge's policy restricting the pro hac vice admission of government attorneys. After the petition was filed, the district judge reversed his previous order denying an attorney in this case pro hac vice admission. The United States contends that the district judge's reversal of his previous order did not render this controversy moot, and requests that we exercise our supervisory and advisory mandamus power to issue guidance to the district court. We agree that the controversy remains live, conclude that the district court erred, and find that guidance to the district court is appropriate. We decline to issue a formal writ of mandamus because it would not be an effective remedy in this case, and accordingly deny the petition without prejudice.
This is one of at least two cases in which the United States has filed petitions for writs of mandamus to the district court challenging District Judge Robert C. Jones's policy of denying the applications for pro hac vice admission of attorneys for the Department of Justice (DOJ) who are not admitted to the Nevada bar.
The underlying litigation in United States v. Malikowski, No. 13–cv–470–RCJ–VPC (D.Nev.), involves an action brought by the United States to collect income taxes from an individual. The DOJ Tax Division designated attorney Virginia Cronan Lowe, a member of the Massachusetts bar, to litigate the case, and the local U.S. Attorney's Office filed a motion to permit Lowe to appear. Judge Jones denied the motion. The order cited District of Nevada Local Rule IA 1031 and stated “[b]efore the Court will permit Ms. Lowe to practice before this Court, the Court requires a showing that the Nevada admitted Assistant United States Attorneys in our judicial district are incapable of handling this matter.”
It appears that Judge Jones has a policy of denying out-of-state government attorneys pro hac vice admission. Judge Jones described this policy to attorneys in United States v. Walker River Irrigation District (Walker River), No. 3:73–cv–00127–RCJ–VPC (D.Nev.), a case involving claims of the United States and the Walker River Paiute Tribe (the Tribe) to water rights in the Walker River basin. Andrew Guarino and David Negri, DOJ Environment and Natural Resources Division attorneys based in Denver, Colorado and Boise, Idaho, respectively, appeared by telephone at one of the first status conferences in Walker River held before Judge Jones. Both had previously filed notices of appearance in the case. After Guarino and Negri introduced themselves at the status conference, Judge Jones stated: “You folks will see in other cases ... that I am entering orders disapproving Washington, D.C., counsel appearance, in particular in tax cases and in some environmental cases, and insisting upon appearance only by the local U.S. Attorney or adjacent districts of the U.S. Attorney.” Judge Jones assured Guarino and Negri that “those orders will not apply to this case[,] at least to the appearances so far.”
Approximately two months later, Guarino and Negri appeared in person before Judge Jones. Judge Jones asked whether Guarino and Negri had been granted pro hac vice status, and cited Local Rule IA 10–3. Judge Jones again stated that he was “developing a policy” of “disallowing” or “debarring” U.S. Attorneys from Washington, D.C. because of concerns about their adherence to “ethical standards,” but once again assured Guarino and Negri that he would allow them to appear in this case.
Soon thereafter, the lead counsel for the United States, who had handled Walker River for over a decade, filed a notice of withdrawal stating that Guarino would replace her as lead counsel. The local U.S. Attorney's Office filed a motion to allow Guarino and Negri to practice before the court. While the motion was pending, Guarino and Negri appeared before Judge Jones and the magistrate judge to whom the case was assigned.
Several months later, Judge Jones issued an order denying Guarino and Negri permission to practice before the district court. Like the order in Malikowski, the Walker River order cited Local Rule IA 10–3 and stated “[b]efore the Court will permit Mr. Negri and Mr. Guarino to practice before this Court, the Court requires a showing that the Nevada admitted Assistant United States Attorneys in our judicial district are incapable of handling this matter.”
The orders in Malikowski and Walker River were not isolated occurrences. In at least four other cases, Judge Jones has refused to allow appearances by attorneys for the federal government who were not admitted to the Nevada bar.2
The United States filed petitions for writs of mandamus in Malikowski and Walker River. The petitions sought an order directing Judge Jones to grant the motions for pro hac vice admission he had denied.
The Ninth Circuit panels to which the petitions were initially assigned issued orders requesting Judge Jones to respond to the petitions if he so desired. In response, Judge Jones granted the United States' motions in Malikowski and Walker River, allowing Lowe, Guarino, and Negri to appear.3
Because the specific relief the United States requested in its petitions had been provided, the United States was ordered to file supplemental briefing regarding whether the petitions were moot. In its supplemental briefing, the United States argues that the petitions are not moot, and requests that we exercise our “supervisory mandamus authority to correct the district judge's improper interference with the government's choice of counsel and the judge's usurpation of responsibilities for conducting and supervising litigation that Congress has expressly delegated to the Attorney General.”
We have jurisdiction to issue writs of mandamus pursuant to the All Writs Act, 28 U.S.C. § 1651. We assess whether a writ of mandamus is warranted by weighing five factors enumerated in Bauman v. U.S. District Court, 557 F.2d 650 (9th Cir.1977).
The United States contends that the district court exceeded its authority “[b]y imposing its own standard as to when and under what circumstances Justice Department officers may litigate a case in the District of Nevada....”
Before we may reach the merits of the United States' arguments, we must first resolve whether this controversy was rendered moot when the district court reversed the orders from which the original mandamus petitions sought relief. If the controversy remains live, we must also decide whether it is appropriate to offer guidance to the district court when there are no longer any orders we may reverse or vacate by issuing a writ of mandamus.
We find that the controversy remains live. We conclude that the district court committed clear error and that guidance is necessary. However, because we expect that the district court will follow this guidance without our issuing a formal writ, and because the district court has already done the act the petition asks us to compel it to do, we deny the petition without prejudice.
After the United States filed its petition for a writ of mandamus, Judge Jones reversed his previous order denying Lowe permission to appear. We conclude that this did not render this controversy moot.
“A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III—‘when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.' ”
Already, LLC v. Nike, Inc., ––– U.S. ––––, 133 S.Ct. 721, 726, 184 L.Ed.2d 553 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (per curiam)). “A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (quoting United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968) ) (internal quotation marks omitted). It is true that a petition for a writ of mandamus directed to a district judge will ordinarily be rendered moot when the judge performs the act the petitioner seeks to compel through the writ. Compare Penn–Central Merger and N & W Inclusion Cases, 389 U.S. 486, 503, 88 S.Ct. 602, 19 L.Ed.2d 723 (1968), and Williams v. Simons, 355 U.S. 49, 57, 78 S.Ct. 109, 2 L.Ed.2d 87 (1957) (per curiam), with Armster v. U.S. Dist. Court, 806 F.2d 1347, 1360–61 (9th Cir.1986) (). However, the traditional exceptions to mootness also apply to...
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