IN THE UNITED STATES COURT OF APPEALS 1

FOR THE FIFTH CIRCUIT 2

_______________ 3

No. 92-1406 4

_______________ 5

IN RE: M.P.W. STONE, 6

Petitioner. 7

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No. 92-1462 9

_______________ 10

IN RE: INTERNAL REVENUE SERVICE 11

and 12

SONJA ROUNDTREE, 13

Petitioners. 14

_______________ 15

No. 92-1573 16

_______________ 17

IN RE: UNITED STATES OF AMERICA, 18

Petitioner. 19

_______________ 20

No. 92-1592 21

_______________ 22

IN RE: UNITED STATES OF AMERICA, 23

Petitioner. 242 _______________ 25

No. 92-1625 26

_______________ 27

IN RE: GOVERNMENT NATIONAL MORTGAGE ASSOCIATION 28

and 29

UNITED STATES OF AMERICA, 30

Petitioners. 31

_______________ 32

No. 92-1909 33

_______________ 34

IN RE: UNITED STATES OF AMERICA, 35

Petitioner. 36

_______________ 37

No. 92-1977 38

_______________ 39

IN RE: UNITED STATES OF AMERICA, 40

Petitioner. 41

_______________ 42

No. 92-9004 43

_______________ 44

IN RE: UNITED STATES OF AMERICA, 45

Petitioner. 463 _______________ 47

No. 92-9065 48

_______________ 49

IN RE: UNITED STATES OF AMERICA, 50

Petitioner. 51

_______________ 52

No. 93-1032 53

_______________ 54

IN RE: UNITED STATES OF AMERICA, 55

Petitioner. 56

57

_______________ 58

59

No. 93-1094 60

_______________ 61

62

IN RE: UNITED STATES OF AMERICA, 63

Petitioner. 64

65

_______________ 66

67

No. 93-1192 68

_______________ 69

70

IN RE: UNITED STATES OF AMERICA, 71

Petitioner. 72

_________________________ 73

Petitions for Writs of Mandamus to 74

the United States District Court 75

for the Northern District of Texas 76

_________________________ 77

(March 12, 1993) 784

Before JOLLY, DAVIS, and SMITH, Circuit Judges. 79

PER CURIAM: 80

In these petitions seeking writs of mandamus, we decide 81

whether a federal district judge has the power, by a standing 82

order, to direct the federal government to send a representative 83

with full settlement authority to settlement conferences and, if 84

so, whether he abused his discretion by so doing in these routine 85

civil lawsuits involving the United States. In addition to 86

requiring counsel to attend these conferences, the court also 87

requires the attendance of a designated repre sentative of each 88

party with full authority to settle the case; that representative 89

must appear in person ) ) availability by telephone is not suffi90

cient. We conclude that although the district judge possesses the 91

ultimate power to require the attendance at issue, it is a power to 92

be very sparingly used, and here the district judge, albeit with 93

the best of intentions, has abused his discretion. 94

I. 95

In each of the petitions before us, the federal government 96

objects to this order as applied to it. By statute, the Attorney 97

General of the United States has the power to conduct all litiga98

tion on behalf of the United States, its agencies, and its 99

officers, unless otherwise provided by law. 28 U.S.C. § 519 100

(1988). Pursuant to authority given by 28 U.S.C. § 510 (1988), the 101

Attorney General has developed a set of regulations deleg ating 102

settlement authority to various officials. S ee 28 C.F.R. §§ 0.160- 1031 Even if a case is to be settled for not more than $500,000, so that a

United States Attorney could settle it under the regulations, his settlement authority disappears upon disagreement over the terms of the settlement by the client agency.

5 0.172 (1991); see also directives reprinted at 28 C.F.R. pt. 0, 104

subpt. Y app. (1991). 105

As we r ead these regulations, United States Attorneys often 106

will be able to settle a case wit hout approval from a higher 107

authority, as the regulations provide that each local United States 108

Attorney has settlement authority up to $500,000. If the client 109

agency disagrees with the United States Attorney over the terms of 110

the settlement, however, an Assistant Attorney General must approve 111

the settlement. 28 C.F.R. § 0.168(a). In addition, settlements in 112

various classes of important cases always must be approved by the 113

Deputy Attorney General or one of the Assistant Attorneys General. 114

See 28 C.F.R. §§ 0.160, 0.161. 1 115

II. 116

Although it is historically reserved for "extraordinary" 117

cases, we have used the writ of mandamus as a "one-time-only device 118

to `settle new and important problems' that might have ot herwise 119

ev aded expeditious review." I n re Equal Employment Opportunity 120

Comm'n

, 709 F.2d 392, 394 (5th Cir. 1983) (quoting Schlagenhauf v. 121

Holder

, 379 U.S. 104 (1964)). As district courts continue to 122

become more heavily involved in the pretrial proce ss, appellate 123

courts may be asked more often to issue writs of mandamus to 124

protect the asserted rights of litigants. Pretrial orders such as 1256

the ones before us raise important issues but are ill-suited for 126

review after final judgment. 127

Because these cases present an impo rtant, undecided issue 128

involving the efficient administration of justice, we may appropri129

ately invoke mandamus review. S ee id. In fact, the district judge 130

who issued the instant directiv es has acknowledged, in his 131

responses to the petitions, that the issue is appropriate for 132

review on petitions for writs of mandamus. We will grant the writ 133

only "when there is `usurpation of judicial power' or a clear abuse 134

of discretion." I d. at 395 (quoting Schlagenhauf

, 379 U.S. at 135

110). The government has the burden of establishing its right to 136

issuance of the writ. Id. 137

III. 138

A. 139

The district court claims inherent power to issue the order. 140

As explained helpfully in Eash v. Riggins Trucking , 757 F.2d 557, 141

562-64 (3d Cir. 1985) (en banc), there are three general categories 142

of inherent powers. 143

The first category delineates powers that are "so fundamental 144

to the essence of a court as a constitutional tribunal that to 145

divest the court of absolute command within this sphere is really 146

to render practically meaningless the terms `court' and `judicial 147

power.'" I d. at 562. In other words, once Congress has created 148

the court, article III of the Constitution vests the courts with 149

certain implied powers. See Anderson v. Dunn , 19 U.S. (6 Wheat.) 1502 See Michaelson v. United States , 266 U.S. 42, 64 (1924) (recognizing

that the Constitution vests courts with some powers unalterable by legislation); Eash , 757 F.2d at 562 (noting that courts may exercise this category of powers despite legislation to the contrary).

7 204, 227 (1821). Within the scope of these powers, the other 151

branches of government may not interfere; any legislation purport152

ing to regulate these inherent powers would be invalid as an 153

unconstitutional violation of the doctrine of se paration of 154

powers. 2 155

Fortunately, history provides few examples of legislative 156

attempts to interfere with the core inherent powers of the judicial 157

branch. But as a result, prior jurisprudence has not identified 158

exactly which inherent powers fall into this category, and we will 159

not attempt to do so here. At least one decision of the Supreme 160

Court appears to have identified one such power. S ee United States 161

v. Klein

, 80 U.S. (13 Wall.) 128, 146-47 (1872). Although the 162

meaning of the opinion has been subject to some debate, Klein seems 163

to hold that Congress may not interfere with a court's inherent 164

power to decide cases by dictating the result in a particular case. 165

80 U.S. at 146-47. 166

The second category of inherent powers encompasse s those 167

"necessary to the exercise of all others." R oadway Express v. 168

Piper , 447 U.S. 752, 764 (1980) (quoting United States v. Hudson

, 169

11 U.S. (7 Cranch) 32, 34 (1812)). For the most part, these powers 170

are those deemed necessary to protect the efficien t and orderly 171

administration of justice and those necessary to command respect 172

for the court's orders, judgments, procedures, and authority. I d. 1738

Like the first category of inherent powers, this category also 174

stems from article III, once Congress creates the court. 175

Michaelson

, 266 U.S. at 65-66. Congress may interfere with this 176

category of inherent power within "limits not precisely defined," 177

so long as it does not abrogate or render the specific power 178

inoperative. Id. 179

Courts have recognized several examples of this type of 180

inherent power. The contempt sanction long has been recognized as 181

among the most important of these powers. I d. at 65; Hudson

, 11 182

U.S. at 34. In addition, the Supreme Court has recognized the 183

power to levy sanctions in response to abusive litigation 184

practices. R oadway Express

, 447 U.S. at 766 (court may assess 185

attorn eys' fees against counsel who abuses judicial processes); 186

Link v. Wabash R.R.

, 370 U.S. 625, 630-31 ( 1962) (court may s ua 187

sponte dismiss case for failure to prosecute). 188

T he third category of inherent powers includes those 189

reasonably useful to achieve justice. E ash

, 757 F.2d at 563. This 190

category of powers recognizes that the legislature cannot foresee 191

every tool the courts might need to employ to reach a just result 192

in all cases. Where it appears that a court cannot adequately and 193

efficiently carry out its duties without employing some special 194

device, the court has inherent power to do so. E x parte Peterson

, 195

253 U.S. 300, 312 (1920). This category of inherent power arises 196

from mere necessity and, consequently, can be completely regulated 197

by Congre ss. S ee id. As an example of this type of power, the 198

Supreme Court has upheld the power of a district court to appoint 1999

an auditor to aid in litigation involving a complex commercial 200

matter. I d. ; see also Ruiz v . Estelle , 679 F.2d 1115, 1161 (5th 201

Cir. 1982), cert. denied , 460 U.S. 1042 (1983). 202

By employing the above three categories, we may now establish 203

a method for reviewing purported exercise s of inherent powers. 204

Initially, we must determine in which categor y the invoked power 205

belongs. If the power belongs in the first category, any statute 206

that seems to interfere with the power is unconstitut ional under 207

the doctrine of separation of powers. 208

If the power belongs in the second category, we must ascertain 209

whether a valid statute or rule attempts to regulate the court's 210

use of the power. If such a law exists, we then must determine 211

whether the law abrogates or render s the power practically 212

inoperative. Michaelson , 266 U.S. at 66. 213

Where the law sufficiently weakens the court's inherent 214

powers, we will strike it down as an unconstitutional violation of 215

the doctrine of separation of powers and will review the court's 216

ac tions for abuse of discretion. When, however, the law can be 217

characterized as an appropriate regulation of inherent powers, we 218

will prevent the district court's exercise of power if that 219

exercise either violates the law or constitutes an abuse of 220

discretion. 221

Finally, where there is no law or rule that governs the 222

invoked inherent power, we review the district court's actions for 223

abuse of discretion. L in k , 370 U.S. at 633. Of course, we need 224

not address the issues in the order set out above. We also note 2253 Several of our sister circuits, similarly, have opined that such

general inherent authority resides in the district courts. See

, e.g.

, In re

Novak , 932 F.2d 1397, 1405, 1407 (11th Cir. 1991) ("[T]he power to direct parties to produce individuals with full settlement authority at pretrial

settlement conferences is inherent in the district court."); Heileman Brewing

Co. v. Joseph Oat Corp. , 871 F.2d 648, 656 (7th Cir. 1989) (en banc) (district courts have "`inherent power,' governed not by rule or statute but by the
control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases"). We reiterate that such inherent power, though broad, is subject to the abuse-of-discretion

standard.

10 that, while we review the court's exercise of such powers only for 226

abuse of discretion, we define the powers narrowly, as they are 227

s hielded from effective democratic control and must be exercised 228

with restraint. Roadway Express , 447 U.S. at 764. 229

Finally, if the power fits in the third category, we also must 230

determine whether a valid statute or rule prevents the court from 231

exercising a specific inherent power. If so, the district court 232

may not exercise that power. 233

B. 234

The district court's standing order invokes its inherent power 235

to manage its own docket to achieve the just and efficient 236

disposition of cases. Landis v. North Am. Co. , 299 U.S. 248, 254 237

(1936) (court has inherent power "to control the disposition of the 238

causes on its docket with economy of time and eff ort for itself, 239

for counsel, and for litigants"); Edwards v. Cass County

, 919 F.2d 240

273, 275 (5th Cir. 1990); Taylor v. Combustion Eng'g

, 782 F.2d 525, 241

527 (5th Cir. 1986). 3 On the basis of our discussion above, we 242

conclude that this power fits most appropriately in the second 2434 In defense of its standing order, the district court also asserts the

authority of the local district rules and of F ED . R. C IV . P. 83, which permits district courts to adopt local rules and states that "[i]n all cases not provided for by rule, the district judges and magistrates may regulate their practice in any manner not inconsistent with these rules or those of the district in which they act." The local rules require "[t]he parties in every civil action [to] make a good-faith effort to settle" and to enter into settlement negotiations at the earliest possible time. N.D. T EX . R. 9.1.

The district court makes this argument only in its reply brief and relies primarily upon inherent power to justify its standing order. Moreover, we do not read the local rule to authorize, in every case, the sweeping order that is at issue here. Nor can local rules be relied upon at the expense of

other considerations of federal law. See In re Dresser Indus. , 972 F.2d 540,
543 (5th Cir. 1992).

5 As we noted above, the Attorney General has power to develop

regulations dealing with the settlement of lawsuits involving the federal government. The government contends that the district court's order interferes with those regulations; it makes the bold assertion that a court may never compel the Department of Justice to alter its regulations governing its procedures for handling litigation. We disagree. If that were the case, the executive branch could use the courts as it pleased. The executive branch

is not above the law. United States v. Nixon , 418 U.S. 683 (1974). Moreover, the government misinterprets Touhy v. Ragen , 340 U.S. 462 (1951), the authority relied upon for this argument.

In Touhy , a low-level official of the Department of Justice, obeying an (continued...)

11 category. 4 244

C. 245

We are able to conclude, based upon t he foregoing, that, 246

subject to the abuse-of-discretion standard, district courts have 247

the general inherent power to require a party to have a 248

representative with full settlement authority present ) ) or at 249

least reasonably and promptly accessible )) at pretrial 250

conferences. This applies to the government as well as private 251

litigants. We find no statute or rule that attempts to regulate 252

the court's use of that inherent power. But a district court must 253

consider the unique position of the government as a litigant in 254

determining whether to exercise its discretion in favor of issuing 255

such an order. 5 2565 (...continued)

internal departmental regulation, refused to produce papers demanded by a subpoena. Given the potentially sensitive nature of Justice Department

documents, the Court held that he properly could refuse to turn over the documents. At best, this case stands for the proposition that courts should observe reasonable regulations of the Executive Branch that have strong underlying policy justifications. The Court's opinion and Justice Frankfurter's concurrence explain that the Court did not decide whether a district court could force the Attorney General to turn over documents. 340 U.S. at 469-73. Our holding today allows us to avoid deciding whether forcing the Attorney General to alter the settlement regulations would run afoul of the doctrine of separation of powers.

The government also relies upon a portion of the Judicial Improvements Act of 1990, 28 U.S.C.A. § 473 (West Supp. 1992), which gives district courts the power to adopt local rules to require parties with full settlement authority to attend settlement conferences. This statute does not affect the issue before us, as the district judge did not act pursuant to a local rule passed pursuant to this statute; instead, he primarily asserts inherent

powers. See supra note 4.

12 As the Supreme Court recently has observed, the executive 257

branch's "most important constitutional duty [is] to `take Care 258

that the Laws be faithfully executed.'" L ujan v. Defenders of 259

Wildlife

, 112 S. Ct. 2130, 2145 (1992). The purpose of the 260

structure established by the A ttorney General is to promote 261

centralized decisionmaking on important questions. The Supreme 262

Court has recognized the value of such centralized decisionmaking 263

in the executive branch. Touhy , 340 U.S. at 468. 264

Centr alized decisionmaking promotes three important 265

objectives. First, it allows the government to act consistently in 266

important cases, a value more or less recognized by the Equal 267

Protection Clause. Second, centralized decisionmaking allows the 268

executive branch to pursue policy goals more effectively by placing 269

ultimate authority in the hands of a few officials. S ee Heckler v. 270

Chaney

, 470 U.S. 821, 831 (1985) (litigants shoul d not interfere 271

with agency discretion, as that could impede with agen cy policy 272

g oals). Third, by giving authority to high-ranking officials, 27313

centraliz ed decisionmaking better promotes political 274

accountability. 275

Given the reasonable policy justifications for the Justice 276

Department's settlement regulations and the insignificant 277

interference with the operation of the courts, the district court 278

abused its discretion in not respecting those regulations. Where 279

the interference with the courts is slight, courts should not risk 280

becoming "monitors of the wisdom an d soundness of Executive 281

action. " Laird v. Tatum , 408 U.S. 1, 15 (1972). The order at 282

issue here imposes a major inconvenience on at least one of the 283

parties without the showing of a real and palpable need. 284

The district court contends that the government is not special 285

and should not be treated differently from private litigants. The 286

government is in a special category in a number of respects, 287

however, in addition to its need for centralized decisionmaking. 288

"It is not open to serious dispute that the Government is a party 289

to a far greater number of cases on a nationwide basis th at even 290

the most litigi ous private entity . . . . " U nited States v. 291

Mendoza , 464 U.S. 154, 159 (1984). 292

Thi s court, as well, has recognized that the government 293

sometimes must be treated differently. Obviously, high-ranking 294

officials of cabinet agencies could never do their jobs if they 295

could be subpoena ed for every case involving their agency. As a 296

result, we have held that such subpoenas are appropriate only in 297

egregious cases. S ee, e. g., In re Office of Inspector Gen. , 933 298

F.2d 276, 278 (5th Cir. 1991); In re Equal Employment Opportunity 29914

Comm'n , 709 F.2d 392, 398 (5th Cir. 1983). "[T]he efficiency of 300

the EEOC would suffer terribly if its commissioners were subject to 301

depositions in every routine subpoena enforcement proceeding." I d. 302

In determining whether to require the government (or, for that 303

matter, a private party) to send a representative to a pretrial 304

conference with full authority to settle, a district court should 305

take a practical approach. The court must be permitted to conduct 306

its business in a reasonably efficient manner; it need not allow 307

the parties or co unsel to waste valuable judicial resources 308

unnecessarily. On the other hand, the court should recognize that 309

parties have a host of problems beyond the immediate case that is 310

set for pretrial conference. This is particularly true of the 311

government. We have outlined above, in some detail, the peculiar 312

position of the Attorney General and the s pecial problems the 313

Department of Justice faces in handling the gover nment's ever314

increasing volume of litigation. 315

We conclude that the district court abused its discretion in 316

routinely requiring a representa tive of the government with 317

ultimate settlement authority to be present at all pretrial or 318

settlement conferences. We do not suggest that the district court 319

can never issue such an order, but it should consider less drastic 320

steps before doing so. 321

For example, the court could require the government to declare 322

whether the case can be settled within the authority of the local 323

United States Attorney. If so, the court could issue an order 324

requiring the United States Attorney to either attend the 32515

conference personally or be available by telephone to discuss 326

settlement at the time of the conference. 327

According to the government at argument, most of its routine 328

litigation can be settled within the United States Attorney's 329

authority. Where that is not so, and failure of the government to 330

extend settlement authority is a se r ious, persistent problem, 331

substantially hampering the operatio ns of the docket, the court 332

could take additional action, such as requiring the government to 333

advise it of the identity of the person or persons who hold such 334

authority and directi ng those persons to consider settlement in 335

advance of the conference and be fully prepared and available by 336

telephone to discuss settlement at the time of the conference. 337

Finally, if the district court's reasonable efforts to conduct an 338

informed sett lement discussion in a particular case are thwarted 339

because the government official with settlement authority will not 340

communicate with government couns el or the court in a timely 341

manner, the court, as a last resort, can require the appropriate 342

officials with full settlement authority to attend a pretrial 343

conference. 344

The measures we outline above are intended to be exempl ary, 345

and we express no ultimate view as to such hypothetical situations 346

except to point out that there are many steps that reasonably can 347

be taken, far short of the standing order at issue here. We 348

include these scenarios to demonstr ate that the district court, 349

before issuing an order such as the directive under review here, 350

must give individualized attention to the hardship that order will 35116

create. The court must then exercise its discretion in light of 352

the circumstances of that case. We believe that such practical 353

measure s will enable the courts to administer their dockets 354

eff iciently while allowing the Department of Justice to handle 355

effectively the burdensome volume of litigation thrust upon it. 356

IV. 357

In summary, we conclude that the district court abused its 358

discretion in these cases. We find it unnecessary to issue writs 359

of mandamus, however. The able district judge has indicated that 360

he welcomes this court's exposition of this issue, and we are 361

confident that he will abide by our decision and adjust his 362

directives accordingly. Thus, the petitions for writs of mandamus 363

are DENIED without prejudice. 364