Belli v. Pritzler et al

Filing 55

ORDER Granting Defendants' 54 Motion for Exception to Settlement Conference Attendance Requirement. Assistant United States Attorney Flake is to participate in the settlement conference set for 1/9/2017 as the sole representative for the Government. Signed by Magistrate Judge Nancy J. Koppe on 11/1/2016. (Copies have been distributed pursuant to the NEF - SLD)

Case 2:13-cv-01839-GMN-NJK Document 54 Filed 10/31/16 Page 1 of 4

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DANIEL G. BOGDEN
United States Attorney
District of Nevada

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TROY K. FLAKE
Assistant United States Attorney
501Las Vegas Boulevard South, Suite 1100
Las Vegas, Nevada 89101
Telephone: [phone]
Facsimile: 702-388-6787
Email: [e-mail]

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Attorneys for the United States

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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The Federal Defendant respectfully requests that the Court grant an exception to the

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NORMAN M. BELLI,
Plaintiff,

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v.
PENNY PRITZLER, Secretary, United States
Department of Commerce,

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Defendant.

Case No: 2:13-cv-01839-GMN-NJK
MOTION FOR EXCEPTION TO
SETTLEMENT CONFERENCE
ATTENDANCE REQUIREMENT

settlement conference attendance requirement based on the following points and authorities.

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I.

BACKGROUND

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The Court set a settlement conference in this matter for January 19, 2017, at 9:30 a.m.

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ECF #53. The Order setting the Settlement Conference requires attendance of “an officer or

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representative with binding authority to settle this matter up to the full amount of the claim or

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last demand made” unless the party requests an exception. Id. at 1-2. The Federal Defendant

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respectfully requests that AUSA Troy Flake be allowed to attend the settlement conference as

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the sole settlement representative for the Federal Defendant.

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II.

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The United States Supreme Court has noted that the federal Government is unlike any

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ARGUMENT

other litigant:
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We have long recognized that the Government is not in a position identical to that
of a private litigant, both because of the geographic breadth of government
litigation and also, most importantly, because of the nature of the issues the
government litigates. It is not open to serious dispute that the government is a party
to a far greater number of cases on a nationwide basis than even the most litigious
private entity.

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United States v. Mendoza, 464 U.S. 154, 159 (1984) (internal citation omitted).

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Because the Government handles a very large number of cases, courts have

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acknowledged that it would be impractical, if not physically impossible, for those with settlement

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authority for the full claim amount to prepare for and appear at all settlement conferences. United

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States v. U.S. Dist. Court, 694 F .3d 1051, 1059 (9th Cir. 2012) (district court abused its

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discretion in ordering a Government representative with full settlement authority to appear in

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person for an initial settlement conference). The Advisory Committee notes that accompany the

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1993 amendments to Federal Rule of Civil Procedure 16 acknowledge the unique position of the

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Government in that regard: “Particularly in litigation in which governmental agencies … are

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involved, there may be no one with on-the-spot settlement authority, and the most that should be

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expected is access to a person who would have a major role in submitting a recommendation to

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the body or board with ultimate decision-making responsibility.” Id. at 1060.

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The Government delegates settlement authority to select individuals in order to promote

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centralized decision-making. Id. at 1059. Centralized decision-making promotes three important

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Government objectives. Id. at 1060. First, it allows the Government to act consistently in

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important cases. Id. Second, it allows the executive branch to pursue policy goals more

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effectively by placing ultimate authority in the hands of a few officials. Id. Third, by giving

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authority to high-ranking officials, centralized decision-making better promotes political

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accountability. Id.

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In light of those principles, the Ninth Circuit has determined that the courts should adopt

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a “practical approach” in deciding whether to require a Government representative with full

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settlement authority to attend a pretrial conference. Id. at 1061. In the Ninth Circuit’s view, the

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courts should consider less drastic steps, such as telephonic participation, before requiring in-

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person participation. Id. Only as a “last resort” should the District Court require an official with
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full settlement authority to participate in a pretrial conference in person. Id.

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The ultimate authority to settle this case rests with the United States Attorney, the Civil

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Division Chief, or higher ranking officials within the Department of Justice (“DOJ”), depending

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on whether the client agency and DOJ officials agree with the proposed resolution. 28 C.F.R. §

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0.168(a). It is simply not feasible, however, for these officials to attend each and every settlement

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conference. Moreover, Assistant United States Attorneys routinely participate in settlement

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conferences in this district as sole settlement representatives for the Government. In fact, the

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Government has utilized this approach with much success for many years and, as a result,

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hundreds of cases involving the United States have settled.

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Accordingly, the United States respectfully requests that the Court authorize Assistant

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United States Attorney Flake to participate in the settlement conference in person as the sole

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settlement representative for the Government. He will ensure that the appropriate Government

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officials are briefed on, and have thoroughly evaluated this case in advance of the settlement

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conference so as to provide meaningful participation by the United States. Should it be

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necessary, Mr. Flake will also provide further recommendations to the appropriate officials

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during the course of the settlement conference.

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III.

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For the reasons above, the United States respectfully requests that the Court consider this

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request and permit Assistant United States Attorney Flake to participate in the settlement

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conference scheduled for January 19, 2017, as the sole settlement representative for the

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Government.

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CONCLUSION

Respectfully submitted this 31st day of October 2016.
DANIEL G. BOGDEN
United States Attorney

IT IS SO ORDERED.
Dated: November 1, 2016

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___________________________
United States Magistrate Judge

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/s/ Troy K. Flake
TROY K. FLAKE
Assistant United States Attorney