Watch v. U.S. Dep't of the Interior
| Decision Date | 23 July 2014 |
| Docket Number | 3:13-cv-00078-RCJ-VPC |
| Parties | GREAT BASIN RESOURCE WATCH; WESTERN SHOSHONE DEFENSE PROJECT, Plaintiffs, v. UNITED STATES DEPARTMENT OF THE INTERIOR; AMY LUEDERS, BLM State Director, and CHRISTOPHER J. COOK, BLM Mt. Lewis Field Manager, Defendants. |
| Court | U.S. District Court — District of Nevada |
The Government moves the Court to reconsider its May 17, 2013 order denying a motion to permit Mr. Dunsmore and Ms. Storey, two out-of-state Government lawyers, to appear in this case (ECF No. 54). The motion is denied without prejudice, and the United States Attorney for the District of Nevada, Mr. Dunsmore, and Ms. Storey are ordered to appear for oral argument on July 15, 2014 at 1:30 p.m. to explain their respective positions on the issues and conditions raised herein.
A court should be loathe to revisit its own decisions unless extraordinary circumstances show that its prior decision was clearly erroneous or would work a manifest injustice. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988). This principle is embodied in the law of the case doctrine, under which "a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case." United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997) ). Nonetheless, in certain limited circumstances, a court has discretion to reconsider its prior decisions.
While Rule 59(e) and Rule 60(b) permit a district court to reconsider and amend previous orders, this is an "extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Kona Enter., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (quoting 12 James William Moore, et al., Moore's Federal Practice § 59.30(4) (3d ed. 2000)) (internal quotation marks omitted).
Indeed, a district court should not grant a motion for reconsideration "absent highly unusual circumstances, unless the court (1) is presented with newly discovered evidence, (2) committed clear error, or (3) if there is an intervening change in the controlling law." 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999) (citing Sch. Dist. No. 1J v. Acands, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)). A motion for reconsideration "may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Kona Enter., 229 F.3d at 890. Mere dissatisfaction with the court's order, or belief that the court is wrong in its decision, is not grounds for reconsideration. Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981). A motion to reconsider must set forth "some valid reason why the court should reconsider its prior decision" and set "forth facts or law of a strongly convincing nature to persuade the court to reverse its prior decision." Frasure v. United States, 256 F. Supp. 2d 1180, 1183 (D. Nev. 2003). Furthermore, "[a] motion for reconsideration is not an avenue to re-litigate the same issues and arguments upon which the court already has ruled." Brown v. Kinross Gold, U.S.A., 378 F. Supp. 2d 1280, 1288 (D. Nev. 2005).
In the Order denying the motion to permit appearances, the Court explained:
(Order, ECF No. 33, at 1-2). The Government now contends that the Court committed clear error by, among other things, "infring[ing] on the Attorney General's statutory authority to determine to whom litigation under his supervision will be assigned." (Mot. Recons., ECF No. 54, at 5). The Government is incorrect.
At bottom, the Government appears to assert two instances of clear error: First, it contends that " (Id. at 4 (quoting United States v. Ries, 100 F.3d 1469, 1472 (9th Cir. 1996))). However, because the Government has conspicuously failed to do so, the Court must highlight the critical difference between Ries and the instant matter: Ries involved a criminal defendant's Sixth Amendment right to counsel of his choice, which "includes the right to have an out-of-state lawyer admitted pro hac vice." 100 F.3d at 1471. There is, of course, no such Sixth Amendment protection in this or any other civil case. U.S. Const., Amdt. 6; Turner v. Rogers, 131 S.Ct. 2507, 2516 (2011) ().Therefore, Ries is entirely inapplicable,1 and the Court did not commit clear error when it "declined to articulate its reasons for denying the motion to appear." Nonetheless, for the Government's benefit, the Court will articulate its reasons in the analysis below.
Second, the Government contends that the Court's order infringes on the Attorney General's authority, under 28 U.S.C. §§ 515-518, to "send any officer of the Department of Justice (or such officer's designee) to conduct and argue any case in which the United States has an interest in any court of the United States." (Mot. Recons., ECF No. 54, at 5 (citing 28 U.S.C. §§ 517, 518(b)) (emphasis added)). However, these statutes simply empower the Attorney General to direct attorneys to represent the United States in any case in court. They do not grant such attorneys unfettered admission to practice before any court. In fact, and contrary to the Government's representation, the phrase "any court" does not appear in the cited statutes. More importantly, the conspicuous inclusion of the word "any" immediately before the word "case," coupled with the absence of such language proceeding the word "court," see 28 U.S.C. § 518, signals that the drafters recognized what is obvious: A grant of representative authority is not synonymous with mandated, unconditional court admission, and it is for this Court, and not Congress, to determine which attorneys may properly appear before it, Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) ( ; In re Snyder, 472 U.S. 634, 645 n.6 (1985) (); Gallo v. U.S. Dist. Ct. for the Dist. of Ariz., 349 F.3d 1169, 1185 (9th Cir. 2003) (). Furthermore, taking the Government's argument to its logical terminus, Congress could require this Court to permit anyone, including nonlawyers, to practice before it. This, of course, is plainly incorrect. See Chambers, 501 U.S. at 43 (1991).
The Government's reliance on the Attorney General's authority to direct litigation is unavailing. It cannot be seriously maintained that the cited statutes prevent this Court from exercising its inherent authority to determine that an out-of-state, unadmitted lawyer may not properly appear before it. Any ruling to the contrary would reduce the longstanding admission process for out-of-state government lawyers to an empty formality that demands rubberstamp approval. This Court declines to adopt such a rule. Instead, and in a cautious exercise of its authority to permit the appearance of unadmitted Government lawyers, the Court will require evidence of both necessity and a willingness to abide by the ethical rules that govern all other attorneys admitted to practice in the District of Nevada.
The local United States Attorney, Mr. Daniel G. Bogden, serves under an Attorney General who, under the guise of prosecutorial discretion, selectively enforces laws to further political objectives that ought to be left to the legislature. There is simply no presumption that his subordinates are above ethical reproach. Indeed, in recent cases, judges on the Ninth Circuit Court of Appeals have shown no inhibition in rebuking U.S. Attorneys and other prosecutors for dereliction of duty, exceeding authority, unprofessionalism, and other misconduct. See, e.g.,United States v. Olsen, 737 F.3d 625 (9th Cir. 2013) () ( ) (citing Smith v. Cain, ––– U.S. ––––, 132 S.Ct. 627 (2012); United States v. Sedaghaty, 728 F.3d 885 (9th...
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