791 F.3d 945
9th Cir.2015Background
- DOJ Tax Division sought pro hac vice admission for Virginia Cronan Lowe (Mass. bar) in a Nevada tax-collection case; District Judge Robert C. Jones denied the motion citing Local Rule IA 10-3 and required a showing that local AUSAs were incapable of handling the matter.
- Judge Jones applied a broader policy of routinely denying out-of-state government attorneys pro hac vice admission in multiple cases (including Walker River and Great Basin), sometimes stating generalized doubts about government attorneys’ ethics.
- The United States filed mandamus petitions in the Ninth Circuit challenging Judge Jones’s denials; after the petitions were filed, Judge Jones reversed and allowed the specific attorneys to appear.
- The Ninth Circuit held the controversy remained live because Judge Jones had continued to issue similar denials elsewhere and his reversals suggested he did not acknowledge error; thus the practice could reasonably recur.
- The panel concluded Judge Jones’s original denial of Lowe was arbitrary and clear error because he offered no case-specific, valid grounds related to orderly administration of justice; but because he had already admitted the attorneys, a formal writ of mandamus would be ineffective, so the petition was denied without prejudice while the court issued guidance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Ninth Circuit had jurisdiction (mootness) after district judge reversed his denial | Govt: Reversal did not moot dispute because judge’s practice may recur and insulated orders from review | Judge (via actions): Reversal moots the specific relief requested | Court: Not moot — voluntary cessation insufficient; reasonable expectation of recurrence given other similar orders |
| Whether mandamus was appropriate despite reversal | Govt: Mandamus appropriate to correct an improper policy and to provide guidance | Dist. Ct.: Reversal made writ unnecessary and mandamus inappropriate | Court: Writ would have been appropriate when filed (Bauman factors satisfied), but now would be an ineffective/empty gesture; deny without prejudice and give guidance |
| Whether Judge Jones clearly erred in denying pro hac vice to DOJ attorneys | Govt: Denial was arbitrary; Local Rule IA 10-3 doesn’t permit wholesale, unsupported refusals of government counsel | Judge: Local rule permits discretion to deny; asserted policy based on ethics concerns and preference for local counsel | Court: Clear error — discretion not unbounded; denial must be based on reasons reasonably related to administering justice; generalized distrust of government attorneys is invalid |
| Proper avenue for addressing a judge’s recurring administrative practice | Govt: Appellate mandamus or guidance is needed to prevent repetition | Concurrence: Circuit Council / Judicial Council administrative complaint is the right forum; appellate advisory opinions are improper | Court: Panel issues binding guidance in opinion but declines formal writ; concurrence emphasizes Circuit Council procedures as appropriate alternative |
Key Cases Cited
- Cheney v. U.S. Dist. Court, 542 U.S. 367 (2004) (mandamus is extraordinary; three prerequisites and narrow standard)
- Bauman v. U.S. Dist. Court, 557 F.2d 650 (9th Cir. 1977) (five-factor test for mandamus)
- Phoenix Newspapers, Inc. v. U.S. Dist. Court, 156 F.3d 940 (9th Cir. 1998) (reviewing merits despite intervening events when issue capable of repetition)
- United States v. Brooklier, 685 F.2d 1162 (9th Cir. 1982) (declining mandamus where relief already accomplished but reviewing errors)
- Zambrano v. City of Tustin, 885 F.2d 1473 (9th Cir. 1989) (admission to state bar creates presumption of character; bar to arbitrary denial)
- United States v. Ries, 100 F.3d 1469 (9th Cir. 1996) (judge must articulate reasons when denying pro hac vice in criminal cases)
- In re Evans, 524 F.2d 1004 (5th Cir. 1975) (stringent standard for denying pro hac vice absent serious unethical conduct)
- Hall v. United States, 145 F.2d 781 (9th Cir. 1944) (recognizing Attorney General’s assignment authority and limits on district court interference)
- Munoz v. Hauk, 439 F.2d 1176 (9th Cir. 1971) (denial of pro hac vice reviewed for abuse of discretion)