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Scott v. United States: US District Court : CIVIL PROCEEDURE - court's inherent authority to require Assistant Attorney General from Department of Justice at settlement conference

MARCELLA SCOTT, as Trustee and
Personal Representative for the Heirs and
Next of Kin of Randolph E. Scott, a/k/a
Randy Scott,
Civil No. 06-3012 (JRT/FLN)
Ronald I. Meshbesher, MESHBESHER & SPENCE, LTD, 1616 Park
Avenue South, Minneapolis, MN 55404, for plaintiffs.
Friedrich A. P. Siekert, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, 300 South Fourth Street, Suite
600, Minneapolis, MN 55415, for defendant.
On February 29, 2008, United States Magistrate Judge Franklin L. Noel issued a
Notice of Follow-Up Settlement Conference (Settlement Conference Notice), after an
initial settlement conference between plaintiffs and defendant proved unsuccessful.
Defendant filed a motion to modify the Settlement Conference Notice, requesting that the
Magistrate Judge not require the personal participation of an Assistant Attorney General
in the settlement conference. In an Order dated April 25, 2008, the Magistrate Judge
denied defendants motion. Defendant then filed these objections. For the reasons set
forth below, the Court affirms the Magistrate Judges order.
- 2 -
This case arises out of a highly publicized automobile collision in South Dakota
on August 16, 2003, involving then-Congressman William Janklow and Randy Scott,
who died at the scene of the accident. Plaintiffs filed a wrongful death action against the
United States under the Federal Tort Claims Act (FTCA), arguing that Scotts death
was caused by the negligent or wrongful act or omission of an employee of the United
States government while acting within the scope of his office or employment. See 28
U.S.C. 1346(b).
On January 4, 2008, the Magistrate Judge issued a notice for a settlement
conference to take place in February 2008. Prior to the settlement conference, defendant
asked to be excused from having a representative with full settlement authority present at
the conference. The Magistrate Judge granted the request, requiring the attendance only
of the Assistant United States Attorney assigned to the case, and the Chief of the Civil
Division for the United States Attorneys Office for the District of Minnesota. The
Magistrate Judge conducted a settlement conference on February 20, 2008. The case did
not settle, however.
The Magistrate Judge determined that while both sides negotiated in good faith
toward a settlement, one impediment to the settlement was the cap on the United States
Attorneys settlement authority, which is imposed by the Attorney Generals settlement
authority regulations. See 28 C.F.R. 0.160(a). Accordingly, on February 29, 2008, the
Magistrate Judge issued a follow-up Settlement Conference Notice requiring an Assistant
Attorney General from the Department of Justice to appear by telephone at a follow-up
- 3 -
settlement conference on May 13, 2008. The Notice provided that the Assistant Attorney
General should be fully briefed on the facts of the case and prior settlement negotiations,
and prepared to participate meaningfully in settlement discussions.
Following issuance of the Notice of Settlement Conference, defendant filed a
motion to modify the Notice. Defendant asked the Magistrate Judge to delete the
requirement that an Assistant Attorney General be present by telephone during the
settlement conference. The Magistrate Judge denied the motion in an order dated
April 14, 2008, finding that the Court has the inherent power to order the limited
participation of government officials to attend a settlement conference, and noting that
the Assistant Attorney General has the next level of settlement authority, though not
ultimate settlement authority within the Department of Justice. Defendant then filed
these objections.
The standard of review for an appeal of a magistrate judges order on a nondispositive
issue is extremely deferential. Reko v. Creative Promotions, Inc., 70
F. Supp. 2d 1005, 1007 (D. Minn. 1999). The Court will reverse the order only if it is
clearly erroneous or contrary to law. 28 U.S.C. 636(b)(1)(A); D. Minn. LR 72.2(a).
Defendant argues that the Magistrate Judges decision to require the participation
of the Assistant Attorney General a government official with a greater level of
- 4 -
settlement authority was contrary to law. In particular, defendant contends that the
Magistrate Judge misapplied the legal standard set forth in In re Stone, 986 F.2d 898 (5th
Cir. 1993).
In re Stone examined the inherent authority of federal district courts to order the
executive branch to send a representative with full settlement authority to a settlement
conference. Id. at 901-02. The court examined three general categories of inherent
powers possessed by Article III courts,1 finding that a courts power to order a
government official to participate in a settlement conference was part of its inherent
authority to protect the efficient and orderly administration of justice. Id. at 903. The
court concluded that district courts have the general inherent power to require a party to
have a representative with full settlement authority present or at least reasonably and
promptly accessible at pretrial conferences. This applies to the government as well as
private litigants. Id. However, because the district court had issued a standing order
requiring the government in every case to attend settlement conferences through a
representative with full settlement authority, the Fifth Circuit held that the court abused
its discretion in exercising its inherent authority. Id. at 904. In particular, the court noted
that the Justice Departments settlement regulations did not significantly interfere with
1 The first category consists of powers so fundamental to the essence of a court as a
constitutional tribunal that to divest the court of absolute command within this sphere is really to
render practically meaningless the terms court and judicial power. Id. at 901 (quoting Eash
v. Riggins Trucking, 757 F.2d 562-64 (3d Cir. 1985) (en banc)). The second category consists of
powers necessary to the exercise of all others, including the power to protect the administration
of justice. Id. Finally, the third category includes those reasonably useful to achieve justice.
- 5 -
the operation of the district court, and that the standing order imposed a major
inconvenience on the government without a showing of real and palpable need. Id.
Defendant argues that the Magistrate Judge misapplied In re Stone because he
failed to apply a test that balances the interference caused by DOJ regulations against
the district courts need for greater settlement authority. The Court disagrees. As
discussed above, In re Stone holds unequivocally that district courts have inherent
authority to require a party, including the government, to have a representative with full
settlement authority present at a settlement conference. Id. at 903. That inherent
authority should yield where it imposes a major inconvenience on a party without a
showing of real and palpable need. Id. However, nothing in In re Stone requires
district courts to perform an explicit balancing test to determine whether a government
official may be ordered to participate in a settlement conference. See id. (In
determining whether to require the government (or, for that matter, a private party) to
send a representative to a pretrial conference with full authority to settle, a district court
should take a practical approach.).
Here, the Magistrate Judge initially granted defendants request to be excused
from having a representative with full settlement authority at the settlement conference.
Following that first settlement conference, the Magistrate Judge found that the limited
settlement authority of the Assistant United States Attorney and the Chief of the Civil
Division was impeding a settlement. Unlike the standing order in In re Stone, however,
which imposed a significant and ongoing inconvenience to the Department of Justice, the
Magistrate Judges Notice of Settlement Conference requires only the limited telephonic
- 6 -
participation of the Assistant Attorney General, in what is likely to be a one-time event.
The Court finds these actions to be wholly consistent with the scope of the district courts
inherent powers under In re Stone.
Defendants remaining arguments are similarly unavailing. Defendant argues that
the Magistrate Judges order violates the Judicial Improvements Act of 1990, which
authorizes district courts to adopt local rules requiring parties with full settlement
authority to attend settlement conferences, but which states that such rules shall not alter
or conflict with the authority of the Attorney General to conduct litigation on behalf of
the United States. See 28 U.S.C. 473(c). However, the Magistrate Judges order in this
case did not rely on any particular settlement authority provisions under local rules. See
In re Stone, 986 F.2d at 903 n.5 (rejecting similar argument that district courts standing
order violated the Judicial Improvements Act). Instead, the Magistrate Judge ordered the
participation of the Assistant Attorney General pursuant to his inherent settlement
authority under In re Stone.
Finally, defendant argues in rather sweeping generalities that the Magistrate
Judges order violates separation of powers principles. As discussed above, federal
district courts possess the inherent authority to ensure the efficient and orderly
administration of justice. Id. at 901; Roadway Express v. Piper, 447 U.S. 752, 764
(1980). This power is not unlimited, however. See In re Stone, 986 F.2d at 903-04. As
the Fifth Circuit recognized in In re Stone, courts must consider the unique position of
the government as a litigant, including the duty of the executive branch to take Care
that the Laws be faithfully executed. Id. Thus, a courts exercise of its inherent powers
- 7 -
must take into consideration both the need for the required action and the inconvenience
imposed on the government. Id. The Court finds these limiting principles adequate to
address defendants separation of powers concerns.
For these reasons, the Court concludes that the Magistrate Judges order requiring
the Assistant Attorney General to participate in a settlement conference is neither clearly
erroneous nor contrary to law. Accordingly, the Court affirms the Magistrate Judges
order and denies defendants motion.
Based on the foregoing, all the records, files, and proceedings herein, the Court
OVERRULES defendants objections [Docket No. 29] and AFFIRMS the Magistrate
Judges Order denying Motion to Modify Notice of Follow-up Settlement Conference
[Docket No. 28].
DATED: May 9, 2008 s/ John R. Tunheim _
at Minneapolis, Minnesota. JOHN R. TUNHEIM
United States District Judge


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