MOTION FOR RELIEF FROM REQUIREMENT THAT INDIVIDUAL WITH FULL SETTLEMENT AUTHORITY ATTEND THE SETTLEMENT CONFERENCE

PEGGY A. LEEN, Magistrate Judge.

The United States of America ("United States"), by and through its undersigned counsel, hereby requests that the Court excuse the United States from the requirement that an individual with full settlement authority personally attend the Settlement Conference, currently set for August 29, 2017, at 9:30 a.m., in the chambers of United States Magistrate Judge Peggy A. Leen, Room 3071, Lloyd D. George United States Courthouse, 333 Las Vegas Boulevard South, Las Vegas, Nevada. The undersigned trial attorney will be present in person, and an individual with full settlement authority will be available by telephone.

POINTS AND AUTHORITIES IN SUPPORT OF MOTION

The Department's regulations delegate settlement authority for cases arising under the internal revenue law to a limited number of senior officials.1 The regulations are designed to promote uniformity in settlements across the country and accountability of the officials acting upon the settlements. Department of Justice regulations confining settlement authority to selected officers and officials are valid and binding. See United States v. U.S. District Court for N. Mariana Islands, 694 F.3d 1051, 1054-55, nn. 3-4 (9th Cir. 2012); White v. United States Dep't of Interior, 639 F.Supp. 82, 88-90 (M.D. Pa. 1986), aff'd 815 F.2d 693 (3d Cir. 1987); Bohlen v. United States, 623 F.Supp. 595 (C.D. Ill. 1985). Trial Attorneys — including the undersigned — have no independent authority. Problems inherent in requiring government officials with full settlement authority to attend settlement conferences were recognized in Section 473(c) of the Judicial Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089, 5093 (1990):

The legislative history of the Judicial Improvements Act, likewise reveals that Congress was aware of, and believed district courts should account for:

H. R. Rep. No. 101-732, 101st Cong., 2d Sess. 16-17; S. Rep. No, 101-426, 101st Cong. 2d Sess. 59 (emphasis added). See also In re Stone, 986 F.2d 898 (5th Cir. 1993).

The Advisory Committee Notes on the amendment to Rule 16, subdivision (c), of the Federal Rules of Civil Procedure, effective December 1, 1993, explain that:

Due to the amount at issue in this case, the Settlement Regulations vest full authority to compromise the case in Richard R. Ward, the Chief of the Tax Division's Civil Trial Section for the Western Region. Mr. Ward may then, in turn, delegate settlement authority to his Assistant Chief.1 These officials' offices are in Washington, D.C., and they currently supervise 28 trial attorneys and 10 support staff members. They are directly responsible for several hundred active cases assigned to trial attorneys in their office, numerous additional cases pending in the Tax Divisions of the United States Attorneys' Offices in Los Angeles and San Francisco, and many more tax cases that are handled by Assistant United States Attorneys and Special Assistant United States Attorneys throughout the Western Region. Accordingly, it is not feasible for these officials to appear in person for every case they are authorized to settle. See U.S. District Court, supra, 694 F.3d at 1058-1060; In re Stone, supra, 986 F.2d at 904-05.

The Tax Division of the Department of Justice is committed to the just and efficient resolution of all cases involving the United States. Many of its cases are resolved through settlements, both with the court's assistance and without. In accordance with the regulations promulgated by the Attorney General, the Division has adopted procedures to make settlement conferences as productive as possible. In this case, the undersigned trial attorney has primary responsibility for the handling of the case, and will have discussed the case thoroughly with the appropriate official before the settlement conference in order to determine the range of settlement offers that would be acceptable to the United States. The undersigned trial attorney will personally attend the settlement conference. Should the Court excuse the United States from the requirement that an individual with full settlement authority personally attend the settlement conference, the Chief or Assistant Chief will be available by telephone throughout the duration of the settlement conference. The Tax Division has used this method for some time and is not aware of any instance in which a trial attorney was unable to engage in energetic and frank negotiations.

This procedure is consistent with Federal Rule of Civil Procedure 16, which provides that the Court "may require that a party or its representative be present or reasonably available by telephone in order to consider possible settlement of the dispute." Fed. R. Civ. P. 16(c). This is also consistent with the consideration of a "practical alternative," such as allowing a settlement official to be available by telephone. See U.S. District Court, supra, 694 F.3d at 1061 (holding that the district court abused its discretion in requiring the Assistant Attorney General of the Tax Division to personally attend a settlement conference).

Based on the foregoing, the United States respectfully requests that it be excused from the Court's Order Scheduling a Settlement Conference requiring that a person with full settlement authority attend the settlement conference.

ORDER

Before the Court is the United States' Motion For Relief From Requirement That Individual With Full Settlement Authority Attend the Settlement Conference. Having considered the United States' motion, and for good cause shown,

IT IS ORDERED that the motion is GRANTED. The trial attorney for the government shall be present at the settlement conference, and the Chief or Assistant Chief of the Western Civil Trial Section, shall be available by telephone for the duration of the settlement conference.

IT IS SO ORDERED.