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IN THE UNITED STATES COURT OF APPEALS
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FOR THE FIFTH CIRCUIT
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_______________
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No. 92-1406
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_______________
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IN RE: M.P.W. STONE,
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Petitioner.
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_______________
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No. 92-1462
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_______________
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IN RE: INTERNAL REVENUE SERVICE
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and
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SONJA ROUNDTREE,
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Petitioners.
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_______________
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No. 92-1573
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_______________
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IN RE: UNITED STATES OF AMERICA,
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Petitioner.
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_______________
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No. 92-1592
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_______________
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IN RE: UNITED STATES OF AMERICA,
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Petitioner.

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_______________
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No. 92-1625
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_______________
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IN RE: GOVERNMENT NATIONAL MORTGAGE ASSOCIATION
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and
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UNITED STATES OF AMERICA,
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Petitioners.
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_______________
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No. 92-1909
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_______________
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IN RE: UNITED STATES OF AMERICA,
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Petitioner.
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_______________
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No. 92-1977
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_______________
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IN RE: UNITED STATES OF AMERICA,
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Petitioner.
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_______________
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No. 92-9004
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_______________
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IN RE: UNITED STATES OF AMERICA,
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Petitioner.
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_______________
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No. 92-9065
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_______________
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IN RE: UNITED STATES OF AMERICA,
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Petitioner.
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_______________
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No. 93-1032
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_______________
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IN RE: UNITED STATES OF AMERICA,
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Petitioner.
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_______________
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No. 93-1094
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_______________
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IN RE: UNITED STATES OF AMERICA,
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Petitioner.
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No. 93-1192
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_______________
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IN RE: UNITED STATES OF AMERICA,
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Petitioner.
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_________________________
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Petitions for Writs of Mandamus to
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the United States District Court
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for the Northern District of Texas
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_________________________
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(March 12, 1993)
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Before JOLLY, DAVIS, and SMITH, Circuit Judges.
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PER CURIAM:
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In these petitions seeking writs of mandamus, we decide
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whether a federal district judge has the power, by a standing
83
order, to direct the federal government to send a representative
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with full settlement authority to settlement conferences and, if
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so, whether he abused his discretion by so doing in these routine
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civil lawsuits involving the United States. In addition to
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requiring counsel to attend these conferences, the court also
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requires the attendance of a designated representative of each
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party with full authority to settle the case; that representative
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must appear in person )) availability by telephone is not suffi-
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cient. We conclude that although the district judge possesses the
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ultimate power to require the attendance at issue, it is a power to
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be very sparingly used, and here the district judge, albeit with
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the best of intentions, has abused his discretion.
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I.
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In each of the petitions before us, the federal government
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objects to this order as applied to it. By statute, the Attorney
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General of the United States has the power to conduct all litiga-
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tion on behalf of the United States, its agencies, and its
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officers, unless otherwise provided by law. 28 U.S.C. � 519
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(1988). Pursuant to authority given by 28 U.S.C. � 510 (1988), the
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Attorney General has developed a set of regulations delegating
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settlement authority to various officials. See 28 C.F.R. �� 0.160-
4

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0.172 (1991); see also directives reprinted at 28 C.F.R. pt. 0,
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subpt. Y app. (1991).
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As we read these regulations, United States Attorneys often
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will be able to settle a case without approval from a higher
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authority, as the regulations provide that each local United States
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Attorney has settlement authority up to $500,000. If the client
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agency disagrees with the United States Attorney over the terms of
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the settlement, however, an Assistant Attorney General must approve
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the settlement. 28 C.F.R. � 0.168(a). In addition, settlements in
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various classes of important cases always must be approved by the
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Deputy Attorney General or one of the Assistant Attorneys General.
See 28 C.F.R. �� 0.160, 0.161.1
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116
II.
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Although it is historically reserved for "extraordinary"
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cases, we have used the writ of mandamus as a "one-time-only device
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to `settle new and important problems' that might have otherwise
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evaded expeditious review." In re Equal Employment Opportunity
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Comm'n, 709 F.2d 392, 394 (5th Cir. 1983) (quoting Schlagenhauf v.
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Holder, 379 U.S. 104 (1964)). As district courts continue to
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become more heavily involved in the pretrial process, appellate
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courts may be asked more often to issue writs of mandamus to
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protect the asserted rights of litigants. Pretrial orders such as
1 Even if a case is to be settled for not more than $500,000, so that a
United States Attorney could settle it under the regulations, his settlement
authority disappears upon disagreement over the terms of the settlement by the
client agency.
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the ones before us raise important issues but are ill-suited for
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review after final judgment.
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Because these cases present an important, undecided issue
129
involving the efficient administration of justice, we may appropri-
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ately invoke mandamus review. See id. In fact, the district judge
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who issued the instant directives has acknowledged, in his
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responses to the petitions, that the issue is appropriate for
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review on petitions for writs of mandamus. We will grant the writ
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only "when there is `usurpation of judicial power' or a clear abuse
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of discretion." Id. at 395 (quoting Schlagenhauf, 379 U.S. at
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110). The government has the burden of establishing its right to
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issuance of the writ. Id.
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III.
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A.
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The district court claims inherent power to issue the order.
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As explained helpfully in Eash v. Riggins Trucking, 757 F.2d 557,
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562-64 (3d Cir. 1985) (en banc), there are three general categories
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of inherent powers.
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The first category delineates powers that are "so fundamental
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to the essence of a court as a constitutional tribunal that to
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divest the court of absolute command within this sphere is really
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to render practically meaningless the terms `court' and `judicial
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power.'" Id. at 562. In other words, once Congress has created
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the court, article III of the Constitution vests the courts with
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certain implied powers. See Anderson v. Dunn, 19 U.S. (6 Wheat.)
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204, 227 (1821). Within the scope of these powers, the other
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branches of government may not interfere; any legislation purport-
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ing to regulate these inherent powers would be invalid as an
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unconstitutional violation of the doctrine of separation of
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powers.2
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Fortunately, history provides few examples of legislative
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attempts to interfere with the core inherent powers of the judicial
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branch. But as a result, prior jurisprudence has not identified
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exactly which inherent powers fall into this category, and we will
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not attempt to do so here. At least one decision of the Supreme
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Court appears to have identified one such power. See United States
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v. Klein, 80 U.S. (13 Wall.) 128, 146-47 (1872). Although the
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meaning of the opinion has been subject to some debate, Klein seems
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to hold that Congress may not interfere with a court's inherent
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power to decide cases by dictating the result in a particular case.
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80 U.S. at 146-47.
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The second category of inherent powers encompasses those
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"necessary to the exercise of all others." Roadway Express v.
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Piper, 447 U.S. 752, 764 (1980) (quoting United States v. Hudson,
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11 U.S. (7 Cranch) 32, 34 (1812)). For the most part, these powers
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are those deemed necessary to protect the efficient and orderly
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administration of justice and those necessary to command respect
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for the court's orders, judgments, procedures, and authority. Id.
2 See Michaelson v. United States, 266 U.S. 42, 64 (1924) (recognizing
that the Constitution vests courts with some powers unalterable by legisla-
tion); Eash, 757 F.2d at 562 (noting that courts may exercise this category of
powers despite legislation to the contrary).
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Like the first category of inherent powers, this category also
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stems from article III, once Congress creates the court.
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Michaelson, 266 U.S. at 65-66. Congress may interfere with this
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category of inherent power within "limits not precisely defined,"
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so long as it does not abrogate or render the specific power
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inoperative. Id.
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Courts have recognized several examples of this type of
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inherent power. The contempt sanction long has been recognized as
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among the most important of these powers. Id. at 65; Hudson, 11
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U.S. at 34. In addition, the Supreme Court has recognized the
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power to levy sanctions in response to abusive litigation
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practices. Roadway Express, 447 U.S. at 766 (court may assess
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attorneys' fees against counsel who abuses judicial processes);
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Link v. Wabash R.R., 370 U.S. 625, 630-31 (1962) (court may sua
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sponte dismiss case for failure to prosecute).
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The third category of inherent powers includes those
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reasonably useful to achieve justice. Eash, 757 F.2d at 563. This
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category of powers recognizes that the legislature cannot foresee
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every tool the courts might need to employ to reach a just result
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in all cases. Where it appears that a court cannot adequately and
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efficiently carry out its duties without employing some special
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device, the court has inherent power to do so. Ex parte Peterson,
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253 U.S. 300, 312 (1920). This category of inherent power arises
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from mere necessity and, consequently, can be completely regulated
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by Congress. See id. As an example of this type of power, the
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Supreme Court has upheld the power of a district court to appoint
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an auditor to aid in litigation involving a complex commercial
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matter. Id.; see also Ruiz v. Estelle, 679 F.2d 1115, 1161 (5th
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Cir. 1982), cert. denied, 460 U.S. 1042 (1983).
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By employing the above three categories, we may now establish
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a method for reviewing purported exercises of inherent powers.
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Initially, we must determine in which category the invoked power
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belongs. If the power belongs in the first category, any statute
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that seems to interfere with the power is unconstitutional under
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the doctrine of separation of powers.
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If the power belongs in the second category, we must ascertain
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whether a valid statute or rule attempts to regulate the court's
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use of the power. If such a law exists, we then must determine
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whether the law abrogates or renders the power practically
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inoperative. Michaelson, 266 U.S. at 66.
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Where the law sufficiently weakens the court's inherent
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powers, we will strike it down as an unconstitutional violation of
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the doctrine of separation of powers and will review the court's
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actions for abuse of discretion. When, however, the law can be
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characterized as an appropriate regulation of inherent powers, we
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will prevent the district court's exercise of power if that
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exercise either violates the law or constitutes an abuse of
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discretion.
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Finally, where there is no law or rule that governs the
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invoked inherent power, we review the district court's actions for
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abuse of discretion. Link, 370 U.S. at 633. Of course, we need
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not address the issues in the order set out above. We also note
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that, while we review the court's exercise of such powers only for
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abuse of discretion, we define the powers narrowly, as they are
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shielded from effective democratic control and must be exercised
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with restraint. Roadway Express, 447 U.S. at 764.
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Finally, if the power fits in the third category, we also must
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determine whether a valid statute or rule prevents the court from
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exercising a specific inherent power. If so, the district court
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may not exercise that power.
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B.
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The district court's standing order invokes its inherent power
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to manage its own docket to achieve the just and efficient
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disposition of cases. Landis v. North Am. Co., 299 U.S. 248, 254
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(1936) (court has inherent power "to control the disposition of the
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causes on its docket with economy of time and effort for itself,
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for counsel, and for litigants"); Edwards v. Cass County, 919 F.2d
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273, 275 (5th Cir. 1990); Taylor v. Combustion Eng'g, 782 F.2d 525,
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527 (5th Cir. 1986).3 On the basis of our discussion above, we
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conclude that this power fits most appropriately in the second
3 Several of our sister circuits, similarly, have opined that such
general inherent authority resides in the district courts. See, e.g., In re
Novak, 932 F.2d 1397, 1405, 1407 (11th Cir. 1991) ("[T]he power to direct
parties to produce individuals with full settlement authority at pretrial
settlement conferences is inherent in the district court."); Heileman Brewing
Co. v. Joseph Oat Corp., 871 F.2d 648, 656 (7th Cir. 1989) (en banc) (district
courts have "`inherent power,' governed not by rule or statute but by the
control necessarily vested in courts to manage their own affairs so as to
achieve the orderly and expeditious disposition of cases"). We reiterate that
such inherent power, though broad, is subject to the abuse-of-discretion
standard.
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category.4
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C.
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We are able to conclude, based upon the foregoing, that,
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subject to the abuse-of-discretion standard, district courts have
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the general inherent power to require a party to have a
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representative with full settlement authority present )) or at
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least reasonably and promptly accessible )) at pretrial
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conferences. This applies to the government as well as private
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litigants. We find no statute or rule that attempts to regulate
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the court's use of that inherent power. But a district court must
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consider the unique position of the government as a litigant in
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determining whether to exercise its discretion in favor of issuing
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such an order.5
4 In defense of its standing order, the district court also asserts the
authority of the local district rules and of FED. R. CIV. P. 83, which permits
district courts to adopt local rules and states that "[i]n all cases not
provided for by rule, the district judges and magistrates may regulate their
practice in any manner not inconsistent with these rules or those of the
district in which they act." The local rules require "[t]he parties in every
civil action [to] make a good-faith effort to settle" and to enter into
settlement negotiations at the earliest possible time. N.D. TEX. R. 9.1.
The district court makes this argument only in its reply brief and
relies primarily upon inherent power to justify its standing order. Moreover,
we do not read the local rule to authorize, in every case, the sweeping order
that is at issue here. Nor can local rules be relied upon at the expense of
other considerations of federal law. See In re Dresser Indus., 972 F.2d 540,
543 (5th Cir. 1992).
5 As we noted above, the Attorney General has power to develop
regulations dealing with the settlement of lawsuits involving the federal
government. The government contends that the district court's order
interferes with those regulations; it makes the bold assertion that a court
may never compel the Department of Justice to alter its regulations governing
its procedures for handling litigation. We disagree. If that were the case,
the executive branch could use the courts as it pleased. The executive branch
is not above the law. United States v. Nixon, 418 U.S. 683 (1974). Moreover,
the government misinterprets Touhy v. Ragen, 340 U.S. 462 (1951), the
authority relied upon for this argument.
In Touhy, a low-level official of the Department of Justice, obeying an
(continued...)
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As the Supreme Court recently has observed, the executive
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branch's "most important constitutional duty [is] to `take Care
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that the Laws be faithfully executed.'" Lujan v. Defenders of
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Wildlife, 112 S. Ct. 2130, 2145 (1992). The purpose of the
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structure established by the Attorney General is to promote
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centralized decisionmaking on important questions. The Supreme
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Court has recognized the value of such centralized decisionmaking
264
in the executive branch. Touhy, 340 U.S. at 468.
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Centralized decisionmaking promotes three important
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objectives. First, it allows the government to act consistently in
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important cases, a value more or less recognized by the Equal
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Protection Clause. Second, centralized decisionmaking allows the
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executive branch to pursue policy goals more effectively by placing
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ultimate authority in the hands of a few officials. See Heckler v.
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Chaney, 470 U.S. 821, 831 (1985) (litigants should not interfere
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with agency discretion, as that could impede with agency policy
273
goals). Third, by giving authority to high-ranking officials,
5(...continued)
internal departmental regulation, refused to produce papers demanded by a
subpoena. Given the potentially sensitive nature of Justice Department
documents, the Court held that he properly could refuse to turn over the
documents. At best, this case stands for the proposition that courts should
observe reasonable regulations of the Executive Branch that have strong
underlying policy justifications. The Court's opinion and Justice
Frankfurter's concurrence explain that the Court did not decide whether a
district court could force the Attorney General to turn over documents. 340
U.S. at 469-73. Our holding today allows us to avoid deciding whether forcing
the Attorney General to alter the settlement regulations would run afoul of
the doctrine of separation of powers.
The government also relies upon a portion of the Judicial Improvements
Act of 1990, 28 U.S.C.A. � 473 (West Supp. 1992), which gives district courts
the power to adopt local rules to require parties with full settlement
authority to attend settlement conferences. This statute does not affect the
issue before us, as the district judge did not act pursuant to a local rule
passed pursuant to this statute; instead, he primarily asserts inherent
powers. See supra note 4.
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centralized decisionmaking better promotes political
275
accountability.
276
Given the reasonable policy justifications for the Justice
277
Department's settlement regulations and the insignificant
278
interference with the operation of the courts, the district court
279
abused its discretion in not respecting those regulations. Where
280
the interference with the courts is slight, courts should not risk
281
becoming "monitors of the wisdom and soundness of Executive
282
action." Laird v. Tatum, 408 U.S. 1, 15 (1972). The order at
283
issue here imposes a major inconvenience on at least one of the
284
parties without the showing of a real and palpable need.
285
The district court contends that the government is not special
286
and should not be treated differently from private litigants. The
287
government is in a special category in a number of respects,
288
however, in addition to its need for centralized decisionmaking.
289
"It is not open to serious dispute that the Government is a party
290
to a far greater number of cases on a nationwide basis that even
291
the most litigious private entity . . . . " United States v.
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Mendoza, 464 U.S. 154, 159 (1984).
293
This court, as well, has recognized that the government
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sometimes must be treated differently. Obviously, high-ranking
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officials of cabinet agencies could never do their jobs if they
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could be subpoenaed for every case involving their agency. As a
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result, we have held that such subpoenas are appropriate only in
298
egregious cases. See, e.g., In re Office of Inspector Gen., 933
299
F.2d 276, 278 (5th Cir. 1991); In re Equal Employment Opportunity
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300
Comm'n, 709 F.2d 392, 398 (5th Cir. 1983). "[T]he efficiency of
301
the EEOC would suffer terribly if its commissioners were subject to
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depositions in every routine subpoena enforcement proceeding." Id.
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In determining whether to require the government (or, for that
304
matter, a private party) to send a representative to a pretrial
305
conference with full authority to settle, a district court should
306
take a practical approach. The court must be permitted to conduct
307
its business in a reasonably efficient manner; it need not allow
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the parties or counsel to waste valuable judicial resources
309
unnecessarily. On the other hand, the court should recognize that
310
parties have a host of problems beyond the immediate case that is
311
set for pretrial conference. This is particularly true of the
312
government. We have outlined above, in some detail, the peculiar
313
position of the Attorney General and the special problems the
314
Department of Justice faces in handling the government's ever-
315
increasing volume of litigation.
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We conclude that the district court abused its discretion in
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routinely requiring a representative of the government with
318
ultimate settlement authority to be present at all pretrial or
319
settlement conferences. We do not suggest that the district court
320
can never issue such an order, but it should consider less drastic
321
steps before doing so.
322
For example, the court could require the government to declare
323
whether the case can be settled within the authority of the local
324
United States Attorney. If so, the court could issue an order
325
requiring the United States Attorney to either attend the
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326
conference personally or be available by telephone to discuss
327
settlement at the time of the conference.
328
According to the government at argument, most of its routine
329
litigation can be settled within the United States Attorney's
330
authority. Where that is not so, and failure of the government to
331
extend settlement authority is a serious, persistent problem,
332
substantially hampering the operations of the docket, the court
333
could take additional action, such as requiring the government to
334
advise it of the identity of the person or persons who hold such
335
authority and directing those persons to consider settlement in
336
advance of the conference and be fully prepared and available by
337
telephone to discuss settlement at the time of the conference.
338
Finally, if the district court's reasonable efforts to conduct an
339
informed settlement discussion in a particular case are thwarted
340
because the government official with settlement authority will not
341
communicate with government counsel or the court in a timely
342
manner, the court, as a last resort, can require the appropriate
343
officials with full settlement authority to attend a pretrial
344
conference.
345
The measures we outline above are intended to be exemplary,
346
and we express no ultimate view as to such hypothetical situations
347
except to point out that there are many steps that reasonably can
348
be taken, far short of the standing order at issue here. We
349
include these scenarios to demonstrate that the district court,
350
before issuing an order such as the directive under review here,
351
must give individualized attention to the hardship that order will
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352
create. The court must then exercise its discretion in light of
353
the circumstances of that case. We believe that such practical
354
measures will enable the courts to administer their dockets
355
efficiently while allowing the Department of Justice to handle
356
effectively the burdensome volume of litigation thrust upon it.
357
IV.
358
In summary, we conclude that the district court abused its
359
discretion in these cases. We find it unnecessary to issue writs
360
of mandamus, however. The able district judge has indicated that
361
he welcomes this court's exposition of this issue, and we are
362
confident that he will abide by our decision and adjust his
363
directives accordingly. Thus, the petitions for writs of mandamus
364
are DENIED without prejudice.
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