9th Circuit Issues Writ of Mandamus

The Ninth Circuit Court of Appeals recently granted a writ of mandamus in United States v. U.S. Dist. Court for the N. Mariana Islands, — F.3d —-, 2012 WL 3984406 (9th Cir. 2012).  There, “Following disallowance by the Internal Revenue Service of certain deductions, real party in interest John K. Baldwin paid a federal income tax deficiency and then filed a lawsuit seeking to recover in excess of $5 million in taxes, penalties, and interest.”  Pursuant to a local rule, the district court had ordered a settlement conference, and required attendance by persons with “full” settlement authority.  According to the Government, “because of the size of Baldwin’s claim, the lowest-ranking official authorized to settle this case was the officer in charge of the Tax Division of the Department of Justice, the Assistant Attorney General of the Tax Division, … and her authority is limited by the requirement that the Congressional Joint Committee on Taxation … reviews and has no adverse criticism to the proposed refund or settlement.”  The Government proposed instead to have the trial attorneys appear in person, and have the Section Chief, who has authority to settle claims up to $1.5 million, available via telephone.


The settlement judge, Judge Munson, refused to accommodate the Government, concluding that “in twenty-nine years of facilitating settlement negotiations, the undersigned has never brought about a settlement agreement without having present on each side a person with full authority to effect such an agreement.”  Because of concerns regarding that fact that Fed. R. Civ. P. 21, a rule of procedure dealing with writs of mandamus and prohibition, refers to trial courts, the Government sought relief from the trial court judge, Judge Manglona. But Judge Manglona ruled “that the government did not need an order issued by her, as the trial judge, in order to submit a petition for a writ of mandamus to” the Court of Appeals.  On October 13, 2011, the Government filed an “an emergency petition for a writ of mandamus” in the Ninth Circuit.  Reflecting courts of appeals’ views on “emergencies,” the Ninth Circuit issued its decision September 12, 2012.


In the Ninth Circuit, petitions for writs of mandamus are apparently decided on a “case-by-case basis,” pursuant to a five factor test: “(1) whether the petitioner has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way not correctable on appeal; (3) whether the district court’s order is clearly erroneous as a matter of law; (4) whether the district court’s order is an oft-repeated error or manifests a persistent disregard of the federal rules; and (5) whether the district court’s order raises new and important problems or issues of first impression.”  The only factor in dispute was the third.


The Ninth Circuit noted that “that the district court has broad authority to compel participation in mandatory settlement conference,” and applied an abuse of discretion standard.  On this point, the Ninth Circuit’s mandamus review seems less deferential than the Eleventh Circuit’s, which has held that “may issue the writ ‘only in drastic situations, when no other adequate means are available to remedy a clear usurpation of power or abuse of discretion.’”  Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1385 (11th Cir. 1998) (en banc) (emphasis added).  And it is certainly less deferential than the standard employed by Florida state courts, where mandamus is inapplicable to discretionary acts.  Hadi v. Cordero, 955 So. 2d 17, 21 (Fla. 3d DCA 2006) (“The official duty required by a writ of mandamus must be ministerial and not discretionary.”).


One of the more interesting parts of the Ninth Circuit’s opinion was the following paragraph:

 The premise underlying the district court’s orders, or the “determinative fact,” in the words of the September 9, 2011 order, was the observation by Judge Munson that he had, in twenty-nine years of judicial experience, “never brought about a settlement agreement without having present on each side a person with full authority to effect such an agreement.” While we have great regard for Judge Munson, that has not been the experience of the members of this panel.

It is relatively unusual for a court of appeals to criticize a judge by name, even if the court attempted to soften the blow by preceding its criticism with a compliment.  This could be a result of the seriousness with which court’s view issuing writs of mandamus.  On the other hand, it may simply be a result of the court’s need to distinguish between the settlement judge and the district court judge in its opinion.


In a footnote, the court makes reference to a quirky procedural point that was not developed.  The district court in this case is not an Article III court, but is instead an Article IV territorial court.  Neither the litigants nor the Ninth Circuit found this to be cause for concern.  This makes sense.  Federal courts’ power to issue special writs is typically derived from the All Writs Act, which applies to “all courts established by Act of Congress.”  28 U.S.C. § 1651.  An “Act of Congress” relying on Article IV rather than Article III is still an “Act of Congress.”


The Ninth Circuit’s opinion presents a number of interesting issues, and a somewhat unusual use of mandamus as a mechanism for “appellate” review.  Aside from the Government, there are likely few litigants who would be willing to invest the resources in seeking a writ of mandamus in order to avoid attending a settlement conference, but the Ninth Circuit’s opinion does highlight the heavy emphasis on procedure that review by mandamus, or any other special writ, entails.

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