1 The distri ct court ordered that each party be represented

during the entire mediation process by “an executive officer (other

than in-house counsel) with authority to negotiate a settlement

(the aut hority required shall be active, i.e., not merely the

authority to observe the mediation proceedings but the authority to

negotiate, demand or offer, and bind the party represented).” UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 98-10748

In Re: UNITED STATES OF AMERICA,

Petitioner.

On Petition For a Writ of Mandamus

to the United States District Court

for the Northern District of Texas

July 29, 1998

Before JONES, BARKSDALE and DENNIS, Circuit Judges.

PER CURIAM:

The United States has filed a petition for a writ of mandamus

seeking an order from this court directing the district court to

vacate the requirement in its order of February 2, 1998, in the

action United States v. Gordon B. McLendon, Jr., et al., mandating

that the United States be represented at mediation by a person with

full settlement authority. 1

Because we find that the district court has not abused its

discretion, we deny the Government’s petition for a writ of

ma ndamus. S ee In re Stone, 986 F.2d 898, 902 (5th Cir. 1993).2

However, we request that the district court consider alternatively

ordering the Government to have the person or persons identified as

holding full settlement authority consider settlement in advance of

the mediation and be fully prepared and available by telephone to

discuss settlement at the time of mediation. See id. at 905.

Petition for Writ of Mandamus DENIED.3

DENNIS, Circuit Judge, specially concurring:

I am writing to specially concur in the denial of mandamus

because I believe that a finding of an abuse of discretion or an

issuance of mandamus is not appropriate at this time because it is

not clear whether the distri ct court actually failed to consider

and to reasonably eliminate all alternatives but the one of “last

resort.” Furthermore, I write specially to explain to the district

court my reasons underlying the request and the denial of mandamus.

In In re Stone, 986 F.2d 898 (5th Cir. 1993), we outlined, in

some detail, the peculiar position of the Attorney General and the

special problems the Department of Justice f aces in handling the

government’s ever-increasing volume of litigation. I d. at 904-05.

We concluded that the district court abused its d iscretion in

routinely req uiring a representative of the government with

ultimate settlement authority to be present at all pretrial or

settlement conferences. Id. at 905. Although we did not suggest

that the district court could never issue such an order, we

declared that it should consider “less drastic steps” before doing

so. Id.

We set forth examples of less drastic steps the court should

consider, such as requiring the government to declare whether the

case could be settled within the authority of the United States

Attorney, and if so, ordering the United States Attorney to either

attend the conference personally or be av ailable by telephone to

disc uss settlement at the time of the conference. I d. In those

cases in which routine litigation can not be settled within the

authority of the United States Attorney, “and the failure of the

government to extend settlement authority is a serious, persistent

problem, substantially hampering the operations of the docket,” we2 In Stone, this court recogni zed that, as in the instant

case, “settlements in various clas ses of i mportant cases must be

approved by the Deputy Attorney General or one of the Assistant

Attorneys Gener al.” Id. a t 901 (emphasis added). In this suit,

the government is seeking to enforce collection of an estate tax

liability of more than $2.2 million, plus statutory interest,

costs, and a 10 percent surcharge. Although each local United

States Attorney has settlement auth ority up to $500,000 provided

that the client agency approves, Department of Justice regulations

require the approval of either the Deputy Attorney General or the

Associate Attorney General when, for any reason, the settlement of

a claim would exceed $2 million. S ee 28 C. F.R. §§ 0.160(1)(c),

0.161.

4 declared that the court could take additional action, such as

”requiring the government to advise it of the identity of the

person or persons wh o hold such authority and directing those

persons to consider settlement in advance of the conference and be

fully prepared and available by telephone to discuss settlement at

the time of the conference.” Id.

Finally, we declared that if the district court’s reasonable

efforts to conduct an informed settlement discussion in a

particular case are thwarted because a government official with

settlement authority will not communicate with government counsel

or the court in a timely manner, the court, “as a last resort,” can

require the appropriate officials with full settlement authority to

attend a pretrial conference. Id.

This case is substantially different from Stone in that (a) it

is an exception al case rather than routine litigation; 2 (b) it

involves specifically ordered mediation rather than a standing

or der or an ordinary pretrial settlement conference; and (3) the

government agreed to mediation. However, the special problems of

the Attorney General still should be given proper consideration and

weight, and, if possible, accommodated. The district court does5

not indicate that it considered or tried the lesser alternative of

requiring the government officer with ultimate settlement authority

t o be fully prepared and available by telephone to discuss

sett lement at the mediation, instead of requiring the government

official with that authority to personally attend the mediation.

I agree that the district court should consider alternatively

ordering the Attorney General to have the person or persons

identified as holding full settlement authority consider settlement

in advance of the mediation and be fully prepared and available by

telephone to discuss settlement at the time of mediation. I

believe that this alternative is a reasonable compromise that takes

into account both the c ourt’s need to conduct its business in a

reasonably efficient manner without unnecessarily wasting valuable

judi c ial resources, and the Government’s need for centralized

decision-making and its special problems in handling everincreasing volumes of litigation.

While I am confident that the district court will consider the

alternativ e and, if feasible, adjust its directives accordingly,

and that the government will cooperate and comply with such a

reasonable alternative order , I would deny the writ of mandamus

without prejudice.