1    IN THE UNITED STATES COURT OF APPEALS

2               FOR THE FIFTH CIRCUIT


3                  _______________

4                    No. 92-1406
5                  _______________


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

7                                        Petitioner.


8                  _______________

 9                   No. 92-1462
10                 _______________


11     IN RE:     INTERNAL REVENUE SERVICE
12                       and
13                SONJA ROUNDTREE,

14                                       Petitioners.


15                 _______________

16                   No. 92-1573
17                 _______________


18     IN RE:    UNITED STATES OF AMERICA,

19                                       Petitioner.


20                 _______________

21                   No. 92-1592
22                 _______________


23     IN RE:    UNITED STATES OF AMERICA,

24                                       Petitioner.
25                      _______________

26                        No. 92-1625
27                      _______________


28   IN RE:   GOVERNMENT NATIONAL MORTGAGE ASSOCIATION
29                            and
30                UNITED STATES OF AMERICA,

31                                          Petitioners.




32                      _______________

33                        No. 92-1909
34                      _______________


35            IN RE:   UNITED STATES OF AMERICA,

36                                          Petitioner.


37                      _______________

38                        No. 92-1977
39                      _______________


40            IN RE:   UNITED STATES OF AMERICA,

41                                          Petitioner.



42                      _______________

43                        No. 92-9004
44                      _______________


45            IN RE:   UNITED STATES OF AMERICA,

46                                          Petitioner.




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47              _______________

48                No. 92-9065
49              _______________


50    IN RE:   UNITED STATES OF AMERICA,

51                                    Petitioner.


52              _______________

53                No. 93-1032
54              _______________


55    IN RE:   UNITED STATES OF AMERICA,

56                                    Petitioner.

57
58              _______________
59
60                No. 93-1094
61              _______________
62

63    IN RE:   UNITED STATES OF AMERICA,

64                                    Petitioner.
65

66              _______________
67
68                No. 93-1192
69              _______________
70

71    IN RE:   UNITED STATES OF AMERICA,

72                                    Petitioner.


73        _________________________

74   Petitions for Writs of Mandamus to
75     the United States District Court
76    for the Northern District of Texas
77         _________________________
78              (March 12, 1993)


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

80    PER CURIAM:

81           In these petitions seeking writs of mandamus, we decide

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

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

84    with full settlement authority to settlement conferences and, if

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

86    civil lawsuits        involving    the     United    States.      In   addition   to

87    requiring counsel to attend these conferences, the court also

88    requires the attendance of a designated representative of each

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

90    must appear in person )) availability by telephone is not suffi-

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

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

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

94    the best of intentions, has abused his discretion.



95                                               I.

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

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

98    General of the United States has the power to conduct all litiga-

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

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

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

102   Attorney General has developed a set of regulations delegating

103   settlement authority to various officials. See 28 C.F.R. §§ 0.160-


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

105   subpt. Y app. (1991).

106        As we read these regulations, United States Attorneys often

107   will be able to settle a case without approval from a higher

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

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

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

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

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

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

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

115   See 28 C.F.R. §§ 0.160, 0.161.1



116                                        II.

117        Although    it   is   historically     reserved   for   "extraordinary"

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

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

120   evaded expeditious review."         In re Equal Employment Opportunity

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

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

123   become more heavily involved in the pretrial process, appellate

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

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



           1
              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.

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

127   review after final judgment.

128         Because these cases present an important, undecided issue

129   involving the efficient administration of justice, we may appropri-

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

131   who   issued   the   instant    directives    has   acknowledged,   in   his

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

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

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

135   of discretion."      Id. at 395 (quoting Schlagenhauf, 379 U.S. at

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

137   issuance of the writ.     Id.



138                                       III.

139                                        A.

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

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

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

143   of inherent powers.

144         The first category delineates powers that are "so fundamental

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

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

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

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

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

150   certain implied powers.        See Anderson v. Dunn, 19 U.S. (6 Wheat.)


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

152   branches of government may not interfere; any legislation purport-

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

154   unconstitutional     violation    of   the   doctrine   of   separation    of

155   powers.2

156        Fortunately, history provides few examples of legislative

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

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

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

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

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

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

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

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

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

166   80 U.S. at 146-47.

167        The second category of inherent powers encompasses those

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

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

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

171   are those deemed necessary to protect the efficient and orderly

172   administration of justice and those necessary to command respect

173   for the court's orders, judgments, procedures, and authority.             Id.



           2
              See Michaelson v. United States, 266 U.S. 42, 64 (1924) (recognizing
      that the Constitution vests courts with some powers unalterable by legisla-
      tion); Eash, 757 F.2d at 562 (noting that courts may exercise this category of
      powers despite legislation to the contrary).

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

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

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

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

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

179   inoperative.    Id.

180        Courts have recognized several examples of this type of

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

182   among the most important of these powers.              Id. at 65; Hudson, 11

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

184   power   to   levy     sanctions    in   response   to    abusive    litigation

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

186   attorneys' fees against counsel who abuses judicial processes);

187   Link v. Wabash R.R., 370 U.S. 625, 630-31 (1962) (court may sua

188   sponte dismiss case for failure to prosecute).

189        The     third    category    of    inherent   powers    includes     those

190   reasonably useful to achieve justice.          Eash, 757 F.2d at 563.      This

191   category of powers recognizes that the legislature cannot foresee

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

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

194   efficiently carry out its duties without employing some special

195   device, the court has inherent power to do so.            Ex parte Peterson,

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

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

198   by Congress.     See id.    As an example of this type of power, the

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


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200   an auditor to aid in litigation involving a complex commercial

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

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

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

204   a method for reviewing purported exercises of inherent powers.

205   Initially, we must determine in which category the invoked power

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

207   that seems to interfere with the power is unconstitutional under

208   the doctrine of separation of powers.

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

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

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

212   whether    the   law    abrogates    or       renders     the    power    practically

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

214        Where    the   law    sufficiently         weakens    the    court's     inherent

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

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

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

218   characterized as an appropriate regulation of inherent powers, we

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

220   exercise either        violates    the    law    or   constitutes        an   abuse   of

221   discretion.

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

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

224   abuse of discretion.        Link, 370 U.S. at 633.               Of course, we need

225   not address the issues in the order set out above.                       We also note


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

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

228   shielded from effective democratic control and must be exercised

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

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

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

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

233   may not exercise that power.



234                                           B.

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

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

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

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

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

240   for counsel, and for litigants"); Edwards v. Cass County, 919 F.2d

241   273, 275 (5th Cir. 1990); Taylor v. Combustion Eng'g, 782 F.2d 525,

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

243   conclude that this power fits most appropriately in the second




            3
              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.

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244   category.4



245                                         C.

246         We are able to conclude, based upon the foregoing, that,

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

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

249   representative with full settlement authority present )) or at

250   least     reasonably    and    promptly    accessible     ))     at    pretrial

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

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

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

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

255   determining whether to exercise its discretion in favor of issuing

256   such an order.5

            4
              In defense of its standing order, the district court also asserts the
      authority of the local district rules and of FED. R. CIV. 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. TEX. 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...)

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257        As the Supreme Court recently has observed, the executive

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

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

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

261   structure   established     by    the   Attorney   General   is   to   promote

262   centralized decisionmaking on important questions.                The Supreme

263   Court has recognized the value of such centralized decisionmaking

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

265        Centralized       decisionmaking        promotes     three     important

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

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

268   Protection Clause.     Second, centralized decisionmaking allows the

269   executive branch to pursue policy goals more effectively by placing

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

271   Chaney, 470 U.S. 821, 831 (1985) (litigants should not interfere

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

273   goals).     Third, by giving authority to high-ranking officials,



           5
            (...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
274   centralized       decisionmaking        better      promotes        political

275   accountability.

276        Given the reasonable policy justifications for the Justice

277   Department's   settlement         regulations     and   the    insignificant

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

279   abused its discretion in not respecting those regulations.              Where

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

281   becoming   "monitors   of   the    wisdom   and   soundness    of   Executive

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

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

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

285        The district court contends that the government is not special

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

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

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

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

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

291   the most litigious private entity . . . . "               United States v.

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

293        This court, as well, has recognized that the government

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

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

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

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

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

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


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

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

302   depositions in every routine subpoena enforcement proceeding." Id.

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

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

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

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

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

308   the   parties   or    counsel    to   waste   valuable    judicial   resources

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

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

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

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

313   position of the Attorney General and the special problems the

314   Department of Justice faces in handling the government's ever-

315   increasing volume of litigation.

316         We conclude that the district court abused its discretion in

317   routinely   requiring     a     representative     of    the   government   with

318   ultimate settlement authority to be present at all pretrial or

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

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

321   steps before doing so.

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

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

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

325   requiring   the      United   States    Attorney    to    either   attend    the


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326   conference personally or be available by telephone to discuss

327   settlement at the time of the conference.

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

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

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

331   extend settlement authority is a serious, persistent problem,

332   substantially hampering the operations of the docket, the court

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

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

335   authority and directing those persons to consider settlement in

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

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

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

339   informed settlement discussion in a particular case are thwarted

340   because the government official with settlement authority will not

341   communicate with government counsel or the court in a timely

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

343   officials with full settlement authority to attend a pretrial

344   conference.

345        The measures we outline above are intended to be exemplary,

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

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

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

349   include these scenarios to demonstrate that the district court,

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

351   must give individualized attention to the hardship that order will


                                       15
352   create.    The court must then exercise its discretion in light of

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

354   measures   will   enable   the   courts    to   administer   their   dockets

355   efficiently while allowing the Department of Justice to handle

356   effectively the burdensome volume of litigation thrust upon it.



357                                       IV.

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

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

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

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

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

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

364   are DENIED without prejudice.




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