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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-10748
In Re: UNITED STATES OF AMERICA,
Petitioner.
On Petition For a Writ of Mandamus
to the United States District Court
for the Northern District of Texas
July 29, 1998
Before JONES, BARKSDALE and DENNIS, Circuit Judges.
PER CURIAM:
The United States has filed a petition for a writ of mandamus
seeking an order from this court directing the district court to
vacate the requirement in its order of February 2, 1998, in the
action United States v. Gordon B. McLendon, Jr., et al., mandating
that the United States be represented at mediation by a person with
full settlement authority.1
Because we find that the district court has not abused its
discretion, we deny the Government's petition for a writ of
mandamus. See In re Stone, 986 F.2d 898, 902 (5th Cir. 1993).
1 The district court ordered that each party be represented
during the entire mediation process by "an executive officer (other
than in-house counsel) with authority to negotiate a settlement
(the authority required shall be active, i.e., not merely the
authority to observe the mediation proceedings but the authority to
negotiate, demand or offer, and bind the party represented)."

However, we request that the district court consider alternatively
ordering the Government to have the person or persons identified as
holding full settlement authority consider settlement in advance of
the mediation and be fully prepared and available by telephone to
discuss settlement at the time of mediation. See id. at 905.
Petition for Writ of Mandamus DENIED.
2

DENNIS, Circuit Judge, specially concurring:
I am writing to specially concur in the denial of mandamus
because I believe that a finding of an abuse of discretion or an
issuance of mandamus is not appropriate at this time because it is
not clear whether the district court actually failed to consider
and to reasonably eliminate all alternatives but the one of "last
resort." Furthermore, I write specially to explain to the district
court my reasons underlying the request and the denial of mandamus.
In In re Stone, 986 F.2d 898 (5th Cir. 1993), we outlined, in
some detail, the peculiar position of the Attorney General and the
special problems the Department of Justice faces in handling the
government's ever-increasing volume of litigation. Id. at 904-05.
We concluded that the district court abused its discretion in
routinely requiring a representative of the government with
ultimate settlement authority to be present at all pretrial or
settlement conferences. Id. at 905. Although we did not suggest
that the district court could never issue such an order, we
declared that it should consider "less drastic steps" before doing
so. Id.
We set forth examples of less drastic steps the court should
consider, such as requiring the government to declare whether the
case could be settled within the authority of the United States
Attorney, and if so, ordering the United States Attorney to either
attend the conference personally or be available by telephone to
discuss settlement at the time of the conference. Id. In those
cases in which routine litigation can not be settled within the
authority of the United States Attorney, "and the failure of the
government to extend settlement authority is a serious, persistent
problem, substantially hampering the operations of the docket," we
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declared that the court could take additional action, such as
"requiring the government to advise it of the identity of the
person or persons who hold such authority and directing those
persons to consider settlement in advance of the conference and be
fully prepared and available by telephone to discuss settlement at
the time of the conference." Id.
Finally, we declared that if the district court's reasonable
efforts to conduct an informed settlement discussion in a
particular case are thwarted because a government official with
settlement authority will not communicate with government counsel
or the court in a timely manner, the court, "as a last resort," can
require the appropriate officials with full settlement authority to
attend a pretrial conference. Id.
This case is substantially different from Stone in that (a) it
is an exceptional case rather than routine litigation;2 (b) it
involves specifically ordered mediation rather than a standing
order or an ordinary pretrial settlement conference; and (3) the
government agreed to mediation. However, the special problems of
the Attorney General still should be given proper consideration and
weight, and, if possible, accommodated. The district court does
2 In Stone, this court recognized that, as in the instant
case, "settlements in various classes of important cases must be
approved by the Deputy Attorney General or one of the Assistant
Attorneys General." Id. at 901 (emphasis added). In this suit,
the government is seeking to enforce collection of an estate tax
liability of more than $2.2 million, plus statutory interest,
costs, and a 10 percent surcharge. Although each local United
States Attorney has settlement authority up to $500,000 provided
that the client agency approves, Department of Justice regulations
require the approval of either the Deputy Attorney General or the
Associate Attorney General when, for any reason, the settlement of
a claim would exceed $2 million. See 28 C.F.R. �� 0.160(1)(c),
0.161.
4

not indicate that it considered or tried the lesser alternative of
requiring the government officer with ultimate settlement authority
to be fully prepared and available by telephone to discuss
settlement at the mediation, instead of requiring the government
official with that authority to personally attend the mediation.
I agree that the district court should consider alternatively
ordering the Attorney General to have the person or persons
identified as holding full settlement authority consider settlement
in advance of the mediation and be fully prepared and available by
telephone to discuss settlement at the time of mediation. I
believe that this alternative is a reasonable compromise that takes
into account both the court's need to conduct its business in a
reasonably efficient manner without unnecessarily wasting valuable
judicial resources, and the Government's need for centralized
decision-making and its special problems in handling ever-
increasing volumes of litigation.
While I am confident that the district court will consider the
alternative and, if feasible, adjust its directives accordingly,
and that the government will cooperate and comply with such a
reasonable alternative order, I would deny the writ of mandamus
without prejudice.
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