United States v. Usdc-Nvr
791 F.3d 945
9th Cir.2015Background
- DOJ Tax Division designated Virginia Cronan Lowe (Mass. bar) to represent the United States in a Nevada tax-collection case; District Judge Robert C. Jones denied pro hac vice admission citing Local Rule IA 10-3 and requiring a showing that local AUSAs were unable to handle the matter.
- Judge Jones had a broader practice of denying out-of-state government attorneys pro hac vice admission in multiple cases (Walker River, Great Basin, others), sometimes stating generalized doubts about government attorneys’ ethics or policy disagreements with agencies.
- The United States filed mandamus petitions in the Ninth Circuit seeking orders directing Judge Jones to grant pro hac vice motions he had denied; after the petitions were filed Judge Jones reversed and allowed the specific attorneys to appear.
- The Ninth Circuit panel held the controversy was not moot because Judge Jones’s pattern made recurrence likely, but recognized a formal writ would be ineffective because the district court already granted the specific relief.
- The court concluded Judge Jones’s original denial was arbitrary and outside his discretion because he gave no attorney-specific, legally sufficient reasons tied to administration of justice or ethics concerns.
- The panel denied the mandamus petition without prejudice, issued nonbinding guidance on the limits of denying government attorneys pro hac vice admission, and explained that future misconduct complaints could be pursued before the Circuit Council.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness: Did Judge Jones’s subsequent admission of the attorneys moot the mandamus petitions? | Government: Not moot because Judge Jones’s practice is capable of repetition yet evading review. | Judge Jones: Reversal moots the specific requests for relief. | Not moot — reasonable expectation of recurrence; jurisdiction exists. |
| Availability of mandamus: Was mandamus an appropriate remedy after the district court reversed? | Government: Needs appellate guidance to prevent recurrence and protect executive choice of counsel. | Judge Jones: Because he granted the requested relief, a writ is unnecessary and would be moot. | Formal mandamus would be ineffective (no order left to compel); court may still opine but denied writ without prejudice. |
| Legal standard for denying pro hac vice under Local Rule IA 10-3 | Government: Local Rule does not permit arbitrary denials; denials must be tied to legitimate, case-specific reasons. | Judge Jones: Rule grants discretion to deny admission; he cited policy concerns about out-of-state government counsel. | Denial was arbitrary and outside discretion where judge gave only a blanket policy reason; refusals must rest on criteria reasonably related to orderly administration of justice or legitimate court policy. |
| Executive-branch representation: Do courts have latitude to restrict the Attorney General’s choice of counsel? | Government: Judicial interference with the AG’s selection risks burdening executive functions and should be constrained. | Judge Jones: Courts retain discretion over appearances and may require local counsel if appropriate. | Courts may exercise discretion but must consider the government’s unique position; arbitrary or categorical restrictions on government counsel are improper. |
Key Cases Cited
- Cheney v. U.S. Dist. Court, 542 U.S. 367 (2004) (mandamus is extraordinary; three prerequisites must be met)
- Bauman v. U.S. Dist. Court, 557 F.2d 650 (9th Cir. 1977) (five-factor framework for mandamus review)
- Phoenix Newspapers, Inc. v. U.S. Dist. Court, 156 F.3d 940 (9th Cir. 1998) (mandamus issues may be reviewed when writ would be ineffective and issue is capable of repetition yet evading review)
- Munoz v. Hauk, 439 F.2d 1176 (9th Cir. 1971) (deference in pro hac vice denials but discretion not arbitrary)
- Zambrano v. City of Tustin, 885 F.2d 1473 (9th Cir. 1989) (admission to a state bar creates a presumption of good moral character)
- In re Evans, 524 F.2d 1004 (5th Cir. 1975) (stringent limits on denying pro hac vice absent serious unethical conduct)
- United States v. U.S. Dist. Court, 694 F.3d 1051 (9th Cir. 2012) (government as litigant is not like other parties; courts should consider government’s unique role)