United States v. Usdc-Nvr

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

IN RE UNITED STATES OF AMERICA, No. 14-70486

D.C. No.
UNITED STATES OF AMERICA, 3:13-cv-00470-
Petitioner, RCJ-VPC

v.
OPINION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA,
RENO,
Respondent,

PAUL J. MALIKOWSKI; BANK OF
AMERICA, NA,
Real Parties in Interest.

On Petition for Writ of Mandamus
to the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding

Argued January 16, 2015
Submitted June 29, 2015
San Francisco, California

Filed June 29, 2015
2 IN RE UNITED STATES

Before: J. Clifford Wallace, Milan D. Smith, Jr.,
and Michelle T. Friedland, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.;
Concurrence by Judge Wallace

SUMMARY*

Mandamus

The panel denied without prejudice a petition for a writ of
mandamus brought by the United States challenging District
Judge Robert C. Jones’s policy of denying the applications
for pro hac vice admission of U.S. Department of Justice
attorneys who are not admitted to the Nevada Bar.

After the United States filed its petition for a writ of
mandamus, Judge Jones reversed his previous order denying
the United States attorney permission to appear. The panel
held that this did not render the controversy moot because the
challenged conduct can reasonably be expected to recur. The
panel held that the controversy remains live, and the court
had jurisdiction to consider the petition.

The panel held that while the reversal of the challenged
order did not render the controversy moot, it rendered a
formal writ of mandamus a superfluous or ineffective
remedy. The panel further held that the court was not
categorically precluded from opining on the merits of the

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 IN RE UNITED STATES 3

mandamus petition when issuance of the writ would no
longer be effective.

The panel considered whether mandamus relief would
have been appropriate at the time the petition was filed, and
applied the five factors enumerated in Bauman v. U.S.
District Court, 557 F.2d 650, 654-55 (9th Cir. 1977). The
panel held that at a minimum, a court’s decision to deny pro
hac vice admission must be based on criteria reasonably
related to promoting the orderly administration of justice, or
some other legitimate policy of the courts. The panel
concluded that Judge Jones acted outside his discretion by
failing to provide a valid reason to deny the United States
attorney’s application for pro hac vice admission, and held
that the requirement of clear error was satisfied. The panel
further held that the United States had no other means to
obtain relief, and the United States was harmed when the
United States attorney was denied pro hac vice admission.
The panel also held that the fact that Judge Jones’ order was
not an isolated occurrence weighed in favor of granting
mandamus relief when the petition was filed. Finally, the
panel held that the district court order raised important issues.
After weighing the Bauman factors, the panel concluded that
it was appropriate to offer guidance to the district court.

Judge Wallace concurred only in the judgment to deny the
writ of mandamus because Judge Jones’s reversal of his prior
order denying admission to United States attorneys rendered
unnecessary the government’s petition for a writ of
mandamus. Judge Wallace stated that the proper, and more
effective, place from which the government may obtain
assurances that Judge Jones would discontinue his practice of
routinely denying admission to the government’s out-of-state
attorneys, and then reversing course when such denials
4 IN RE UNITED STATES

became subject to appellate review, was the Judicial Council
of the Circuit.

COUNSEL

Kathryn Keneally, Assistant Attorney General; Tamara W.
Ashford, Principal Deputy Assistant Attorney General;
Gilbert S. Rothenberg (argued), Michael J. Haungs, and Ivan
C. Dale, Attorneys, Tax Division, United States Department
of Justice, Washington, D.C., for Petitioner.

No appearance for Respondent.

No appearance for Real Parties in Interest.

OPINION

M. SMITH, Circuit Judge:

The United States has filed a petition for a writ of
mandamus challenging a district judge’s policy restricting the
pro hac vice admission of government attorneys. After the
petition was filed, the district judge reversed his previous
order denying an attorney in this case pro hac vice admission.
The United States contends that the district judge’s reversal
of his previous order did not render this controversy moot,
and requests that we exercise our supervisory and advisory
mandamus power to issue guidance to the district court. We
agree that the controversy remains live, conclude that the
district court erred, and find that guidance to the district court
is appropriate. We decline to issue a formal writ of
 IN RE UNITED STATES 5

mandamus because it would not be an effective remedy in
this case, and accordingly deny the petition without prejudice.

FACTUAL AND PROCEDURAL BACKGROUND

This is one of at least two cases in which the United
States has filed petitions for writs of mandamus to the district
court challenging District Judge Robert C. Jones’s policy of
denying the applications for pro hac vice admission of
attorneys for the Department of Justice (DOJ) who are not
admitted to the Nevada bar.

I. Proceedings Before The District Court

The underlying litigation in United States v. Malikowski,
No. 13-cv-470-RCJ-VPC (D. Nev.), involves an action
brought by the United States to collect income taxes from an
individual. The DOJ Tax Division designated attorney
Virginia Cronan Lowe, a member of the Massachusetts bar,
to litigate the case, and the local U.S. Attorney’s Office filed
a motion to permit Lowe to appear. Judge Jones denied the
motion. The order cited District of Nevada Local Rule IA 10-
31 and stated “[b]efore the Court will permit Ms. Lowe to
practice before this Court, the Court requires a showing that
the Nevada admitted Assistant United States Attorneys in our
judicial district are incapable of handling this matter.”

It appears that Judge Jones has a policy of denying out-of-
state government attorneys pro hac vice admission. Judge
Jones described this policy to attorneys in United States v.

1
Local Rule IA 10-3 provides that government attorneys shall, on
motion of the U.S. Attorney of the District, be permitted to practice,
“[u]nless otherwise ordered by the Court . . . .”
6 IN RE UNITED STATES

Walker River Irrigation District (Walker River), No. 3:73-cv-
00127-RCJ-VPC (D. Nev.), a case involving claims of the
United States and the Walker River Paiute Tribe (the Tribe)
to water rights in the Walker River basin. Andrew Guarino
and David Negri, DOJ Environment and Natural Resources
Division attorneys based in Denver, Colorado and Boise,
Idaho, respectively, appeared by telephone at one of the first
status conferences in Walker River held before Judge Jones.
Both had previously filed notices of appearance in the case.
After Guarino and Negri introduced themselves at the status
conference, Judge Jones stated: “You folks will see in other
cases . . . that I am entering orders disapproving Washington,
D.C., counsel appearance, in particular in tax cases and in
some environmental cases, and insisting upon appearance
only by the local U.S. Attorney or adjacent districts of the
U.S. Attorney.” Judge Jones assured Guarino and Negri that
“those orders will not apply to this case[,] at least to the
appearances so far.”

Approximately two months later, Guarino and Negri
appeared in person before Judge Jones. Judge Jones asked
whether Guarino and Negri had been granted pro hac vice
status, and cited Local Rule IA 10-3. Judge Jones again
stated that he was “developing a policy” of “disallowing” or
“debarring” U.S. Attorneys from Washington, D.C. because
of concerns about their adherence to “ethical standards,” but
once again assured Guarino and Negri that he would allow
them to appear in this case.

Soon thereafter, the lead counsel for the United States,
who had handled Walker River for over a decade, filed a
notice of withdrawal stating that Guarino would replace her
as lead counsel. The local U.S. Attorney’s Office filed a
motion to allow Guarino and Negri to practice before the
 IN RE UNITED STATES 7

court. While the motion was pending, Guarino and Negri
appeared before Judge Jones and the magistrate judge to
whom the case was assigned.

Several months later, Judge Jones issued an order denying
Guarino and Negri permission to practice before the district
court. Like the order in Malikowski, the Walker River order
cited Local Rule IA 10-3 and stated “[b]efore the Court will
permit Mr. Negri and Mr. Guarino to practice before this
Court, the Court requires a showing that the Nevada admitted
Assistant United States Attorneys in our judicial district are
incapable of handling this matter.”

The orders in Malikowski and Walker River were not
isolated occurrences. In at least four other cases, Judge Jones
has refused to allow appearances by attorneys for the federal
government who were not admitted to the Nevada bar.2

II. Mandamus Proceedings

The United States filed petitions for writs of mandamus
in Malikowski and Walker River. The petitions sought an

2
For instance, he refused to allow attorneys for the Office of the United
States Trustee, each of whom lived and worked in Nevada, to appear in In
re Hofsaess, No. 2:13-cv-01161-RCJ (D. Nev.), because they were not
members of the Nevada bar. He issued an order denying DOJ attorneys
from Alaska and Washington D.C. permission to appear in Great Basin
Resource Watch v. U.S. Bureau of Land Management, No. 3:13-cv-00078-
RCJ-VPC (D. Nev.), absent a showing that the local U.S. Attorney’s
Office “are incapable of handling the matter.” He issued similar orders in
Nevada Association Services, Inc. v. Yanke, No. 2:13-cv-01386-RCJ-
CWH (D. Nev.), and EEOC v. Wells Fargo Bank, No. 3:13-cv-00528-
RCJ-WCG (D. Nev.).
8 IN RE UNITED STATES

order directing Judge Jones to grant the motions for pro hac
vice admission he had denied.

The Ninth Circuit panels to which the petitions were
initially assigned issued orders requesting Judge Jones to
respond to the petitions if he so desired. In response, Judge
Jones granted the United States’ motions in Malikowski and
Walker River, allowing Lowe, Guarino, and Negri to appear.3

Because the specific relief the United States requested in
its petitions had been provided, the United States was ordered
to file supplemental briefing regarding whether the petitions
were moot. In its supplemental briefing, the United States
argues that the petitions are not moot, and requests that we
exercise our “supervisory mandamus authority to correct the
district judge’s improper interference with the government’s
choice of counsel and the judge’s usurpation of
responsibilities for conducting and supervising litigation that
Congress has expressly delegated to the Attorney General.”

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to issue writs of mandamus pursuant
to the All Writs Act, 28 U.S.C. § 1651. We assess whether a
writ of mandamus is warranted by weighing five factors
enumerated in Bauman v. U.S. District Court, 557 F.2d 650
(9th Cir. 1977).

3
Judge Jones dismissed the claims of the United States and entered
judgment in Walker River on May 28, 2015.
 IN RE UNITED STATES 9

DISCUSSION

The United States contends that the district court
exceeded its authority “[b]y imposing its own standard as to
when and under what circumstances Justice Department
officers may litigate a case in the District of Nevada . . . .”

Before we may reach the merits of the United States’
arguments, we must first resolve whether this controversy
was rendered moot when the district court reversed the orders
from which the original mandamus petitions sought relief. If
the controversy remains live, we must also decide whether it
is appropriate to offer guidance to the district court when
there are no longer any orders we may reverse or vacate by
issuing a writ of mandamus.

We find that the controversy remains live. We conclude
that the district court committed clear error and that guidance
is necessary. However, because we expect that the district
court will follow this guidance without our issuing a formal
writ, and because the district court has already done the act
the petition asks us to compel it to do, we deny the petition
without prejudice.

I. Mootness

After the United States filed its petition for a writ of
mandamus, Judge Jones reversed his previous order denying
Lowe permission to appear. We conclude that this did not
render this controversy moot.

“A case becomes moot—and therefore no longer a ‘Case’
or ‘Controversy’ for purposes of Article III—‘when the issues
presented are no longer ‘live’ or the parties lack a legally
10 IN RE UNITED STATES

cognizable interest in the outcome.’” Already, LLC v. Nike,
Inc., 133 S. Ct. 721, 726 (2013) (quoting Murphy v. Hunt,
455 U.S. 478, 481 (1982) (per curiam)). “A case might
become moot if subsequent events made it absolutely clear
that the allegedly wrongful behavior could not reasonably be
expected to recur.” Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs., Inc., 528 U.S. 167, 189 (2000) (quoting United
States v. Concentrated Phosphate Export Ass’n, 393 U.S.
199, 203 (1968)) (internal quotation marks omitted). It is true
that a petition for a writ of mandamus directed to a district
judge will ordinarily be rendered moot when the judge
performs the act the petitioner seeks to compel through the
writ. Compare Penn-Central Merger and N&W Inclusion
Cases, 389 U.S. 486, 503 (1968), and Williams v. Simons,
355 U.S. 49, 57 (1957) (per curiam), with Armster v. U.S.
Dist. Court, 806 F.2d 1347, 1360–61 (1986) (observing that
“[a] finding of mootness would be particularly inappropriate”
in an advisory mandamus proceeding, the purpose of which
“is to provide guidance to all district court judges . . . .”).
However, the traditional exceptions to mootness also apply to
mandamus proceedings. See Phoenix Newspapers, Inc. v.
U.S. Dist. Court, 156 F.3d 940, 945–46 (9th Cir. 1998)
(finding that a petition for mandamus was not moot where
issue was capable of repetition, yet evading review). “It is
well settled that ‘a defendant’s voluntary cessation of a
challenged practice does not deprive a federal court of its
power to determine the legality of the practice.’” Friends of
the Earth, 528 U.S. at 189 (quoting City of Mesquite v.
Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)). A case is
not moot if the challenged conduct can “reasonably be
expected to recur.” Id.

We find it is reasonably likely that Judge Jones will again
deny the pro hac vice applications of attorneys for the United
 IN RE UNITED STATES 11

States because he has done so at least once after he reversed
his order denying pro hac vice admission in this case. In
Great Basin Resource Watch v. U.S. Bureau of Land
Management, No. 13-cv-00078-RCJ-VPC (D. Nev.), Judge
Jones denied a motion requesting that a DOJ attorney who
was a member of the North Dakota Bar be allowed to appear.
The United States filed a motion for reconsideration, which
Judge Jones denied on July 23, 2014, after he allowed Lowe
to appear in this case.

Judge Jones’s reasoning in the Great Basin order leads us
to conclude that his decision to reverse course in the present
case was not an acknowledgment that his previous orders
were wrongly decided. See Knox v. Serv. Employees Intern.
Union, 132 S. Ct. 2277, 2287 (2012) (holding that a union’s
voluntary cessation of the challenged conduct did not render
the case moot, in part because the union continued to defend
the practice’s legality); Armster, 806 F.2d at 1359 (“It has
long been recognized that the likelihood of recurrence of
challenged activity is more substantial when the cessation is
not based upon a recognition of the initial illegality of that
conduct.”). The Great Basin order asserted that a district
court has “inherent authority to determine that an out-of-state,
unadmitted lawyer may not properly appear before it.” It also
stated that Judge Jones was willing to admit out-of-state
government lawyers only if the local United States Attorney
“affirmatively represents, at oral argument, that he is unable
to effectively litigate this case without the assistance of out-
of-state counsel . . . .” This order leaves us with little doubt
that Judge Jones may continue to deny the pro hac vice
applications of attorneys for the United States. For this
reason, this controversy remains live, and we have
jurisdiction to consider the petition.
12 IN RE UNITED STATES

II. Whether We May Review Issues Raised in the Petition
if the Writ Is No Longer An Effective Remedy

While the reversal of the challenged order did not render
this controversy moot, it rendered a formal writ of mandamus
a superfluous or ineffective remedy here. Historically, a writ
of mandamus was an order compelling a court or officer to
act. See Marbury v. Madison, 5 U.S. 137, 147 (1803) (“[A]
writ of mandamus is ‘a command . . . directed to any person,
corporation or inferior court, requiring them to do some
particular thing therein specified, which appertains to their
office and duty . . . .’” (emphases omitted) (quoting 3
WILLIAM BLACKSTONE, COMMENTARIES *110)). There is no
specific act the United States would have us compel the
district court to do, either in this case or another case, nor is
there any order we may vacate. The challenged order has
already been reversed. We recognize the United States has a
continuing interest in receiving assurances that Judge Jones
will not deny its attorneys pro hac vice admission in the
future. But we do not believe we can craft a formal writ of
mandamus that would provide such assurances. Cf. United
States v. Hall, 145 F.2d 781, 784 (9th Cir. 1944) (“[W]e have
no power to consider the petition in the broad and general
nature of the prayer but . . . we have such power to the extent
that the petition applies to the specific case out of which [the
judge’s] rulings arose.”4). Therefore, while there may be a
continuing need to decide this case, “issuance of a writ would

4
The petition in Hall requested “that Judge Hall be directed to recognize
the authority of the Attorney General to assign condemnation matters to
Irl D. Brett and staff, to recognize the authority of Mr. Brett and his
assistants to represent the United States in such proceedings, and to
assume jurisdiction over all pleadings and motions filed by Mr. Brett and
his staff on behalf of the United States in condemnation proceedings.”
145 F.2d at 783.
 IN RE UNITED STATES 13

be an empty gesture.” United States v. Brooklier, 685 F.2d
1162, 1173 (9th Cir. 1982). But see In re Washington Post
Co., 807 F.2d 383, 393 (4th Cir. 1986) (issuing a writ of
mandamus to vacate a district court’s orders closing hearings
even though the hearings had already been held).

To provide the assurances the United States seeks, we
must opine on the merits of the issues raised in the petition,
with confidence that the district court will follow our
guidance in future cases even if no writ issues. In cases
where intervening events have rendered the writ an
ineffective or superfluous remedy, but where the controversy
nonetheless remains live, we have occasionally reviewed the
district court’s decision for error while withholding a formal
writ. See Phoenix Newspapers, 156 F.3d at 952; Brooklier,
685 F.2d at 1173. In United States v. Brooklier, we
considered a petition for a writ of mandamus brought by a
newspaper company and a reporter challenging a number of
orders by a district court closing criminal proceedings to the
press and refusing to release transcripts.5 685 F.2d at 1165.
We reviewed the challenged orders in a mandamus
proceeding after the trial had concluded and the transcripts
had been released, id. at 1165, 1173, and concluded that the
district court erred in a number of respects. Id. at 1165–73.
We found, however, that these errors were “far from clear” at
the time the district court ruled, and determined that
mandamus should not issue. Id. at 1173. We observed that
“although the controversy is not moot under controlling
authority, in view of the completion of the trial and the
release of the transcripts, issuance of a writ would be an
empty gesture.” Id.

5
The petitioners also filed an appeal, which we dismissed for lack of
standing. Brooklier, 685 F.2d at 1165–66.
14 IN RE UNITED STATES

We confronted similar issues in Phoenix Newspapers, Inc.
v. U.S. District Court. There we reviewed, on a petition for
a writ of mandamus, whether a district court erred by sealing
a hearing transcript. 156 F.3d at 943. At the time of our
review, the transcripts had been released. Id. at 945. We
nonetheless concluded that the controversy was not moot, id.,
proceeded to address the issues raised in the petition, and
found that the district court erred. Id. at 951. We did not,
however, issue a writ of mandamus because we were not
“persuaded that mandamus [was] the appropriate remedy,” in
part because the transcripts had already been released. Id. at
952.

Brooklier and Phoenix Newspapers establish that we are
not categorically precluded from opining on the merits of a
mandamus petition when issuance of the writ would no
longer be effective.6 Our cases do not offer guidance about
when it is appropriate to reach the merits if no formal writ
may issue. But we think it clear that we should only offer
guidance to the district court if the writ would have been an
appropriate remedy at the time the petition was filed. This
insures that mandamus proceedings do not supplant the
normal appeals process. In addition, we should be satisfied

6
Brooklier and Phoenix Newspapers do not authorize the uncabined use
of mandamus proceedings to review district court decisions for error
where the prerequisites for the issuance of mandamus are not satisfied. In
the typical mandamus proceeding, we should avoid identifying errors of
law in a district court’s order if it is clear that the writ is not an appropriate
remedy. See In re Am. Fed’n of Gov’t Employees, AFL-CIO, 837 F.2d
503, 507 (D.C. Cir. 1988) (denying petition for writ of mandamus and
observing that “[w]here there’s no remedy, there’s no need to decide if
there was a wrong”). Such a practice insures that mandamus proceedings
are not used as a substitute for the normal appeals process. See Ex parte
Fahey, 332 U.S. 258, 260 (1947).
 IN RE UNITED STATES 15

that there is a compelling reason to review the district court’s
decision for error when the specific relief sought has already
been granted. Cf. Armster, 806 F.2d at 1361 (declining to
withdraw prior mandamus opinion where “a strong public
interest in having the legality of the challenged procedure
determined remains” (internal quotation marks omitted)).
This allows for review of important issues that would
otherwise escape review, while insuring that such review is
limited to truly extraordinary circumstances.

III. Whether Mandamus Was Available When the
Petition Was Filed

We now consider whether mandamus relief would have
been appropriate at the time the petition was filed.
Mandamus “is a ‘drastic and extraordinary’ remedy ‘reserved
for really extraordinary causes.’” Cheney v. U.S. Dist. Court,
542 U.S. 367, 380 (2004) (quoting Ex parte Fahey, 332 U.S.
258. 259–60 (1947)). “As the writ is one of ‘the most potent
weapons in the judicial arsenal,’ [Will v. United States,
389 U.S. 90, 107 (1967)], three conditions must be satisfied
before it may issue.” Id. “First, ‘the party seeking issuance
of the writ [must] have no other adequate means to attain the
relief he desires . . . .’” Id. (quoting Kerr v. U.S. Dist. Court,
426 U.S. 394, 403 (1976)). Second, the petitioner’s right to
issuance of the writ must be “clear and indisputable.” Id. at
381 (quoting Kerr, 426 U.S. at 403) (internal quotations
marks omitted). “Third, even if the first two prerequisites
have been met, the issuing court, in the exercise of its
discretion, must be satisfied that the writ is appropriate under
the circumstances.” Id.
16 IN RE UNITED STATES

To determine whether mandamus relief is appropriate, we
weigh five factors enumerated in Bauman v. U.S. District
Court,7 557 F.2d 650, 654–55 (9th Cir. 1977):

(1) The party seeking the writ has no other
adequate means, such as a direct appeal, to
attain the relief he or she desires. (2) The
petitioner will be damaged or prejudiced in a
way not correctable on appeal. (This guideline
is closely related to the first.) (3) The district
court’s order is clearly erroneous as a matter
of law. (4) The district court’s order is an
oft-repeated error, or manifests a persistent
disregard of the federal rules. (5) The district
court’s order raises new and important
problems, or issues of law of first impression.

Id. (citations omitted). The Bauman factors are not
exhaustive, see In re Cement Antitrust Litig., 688 F.2d 1297,
1301 (9th Cir. 1982) (listing additional considerations), and
“should not be mechanically applied,” Cole v. U.S. Dist.
Court, 366 F.3d 813, 817 (9th Cir. 2004). While all the
factors need not be present to issue the writ, id., “the absence
of factor three–clear error as a matter of law–will always
defeat a petition for mandamus . . . .” DeGeorge v. U.S. Dist.
Court, 219 F.3d 930, 934 (9th Cir. 2000) (internal quotation
marks omitted).

7
The Bauman factors are consistent with the Supreme Court’s most
recent discussion of mandamus in Cheney v. U.S. District Court, 542 U.S.
367 (2004), and incorporate the “conditions” announced therein. We have
therefore continued to apply the Bauman factors without separately
considering the three conditions described in Cheney. See, e.g., Perry v.
Schwarzenegger, 591 F.3d 1126, 1136–38 (9th Cir. 2009) (citing Cheney
and applying the Bauman factors).
 IN RE UNITED STATES 17

A. Clear Error

We begin with the third Bauman factor, whether “[t]he
district court’s order is clearly erroneous as a matter of law,”
Bauman, 557 F.2d at 654–55, since “failure to show clear
error may be dispositive of the petition.” Cohen v. U.S. Dist.
Court, 586 F.3d 703, 708 (9th Cir. 2009). “The clear error
standard is significantly deferential and is not met unless the
reviewing court is left with a ‘definite and firm conviction
that a mistake has been committed.’” Id. (quoting Concrete
Pipe & Prods. v. Constr. Laborers Pension Trust, 508 U.S.
602, 623 (1993)) (internal quotation marks omitted). “We
normally review a denial of a motion to appear pro hac vice
for abuse of discretion,” United States v. Walters, 309 F.3d
589, 591 (9th Cir. 2002), and therefore our review of a
decision to deny pro hac vice admission is especially
deferential in a mandamus proceeding. See Munoz v. Hauk,
439 F.2d 1176, 1179 (9th Cir. 1971) (per curiam).
Notwithstanding the high degree of deference appropriate
here, it is clear to us that the district court acted outside its
discretion in denying Lowe’s application for pro hac vice
admission.

We begin by determining whether the district court
properly interpreted the District of Nevada’s standards
governing the pro hac vice admission of government
attorneys. The court denied the motion to admit Lowe
pursuant to Nevada Local Rule IA 10-3. The rule provides:

[u]nless otherwise ordered by the Court, any
nonresident attorney who is a member in good
standing of the highest court of any state,
commonwealth, territory or the District of
Columbia, who is employed by the United
18 IN RE UNITED STATES

States as an attorney and, while being so
employed, has occasion to appear in this
Court on behalf of the United States, shall,
upon motion of the United States Attorney or
the Federal Public Defender for this District
or one of the assistants, be permitted to
practice before this Court during the period of
such employment.

(emphasis added). The court interpreted the first clause of the
rule to confer discretion to deny pro hac vice admission to
attorneys for the United States who are not members of the
Nevada bar. We generally defer to a district court’s
interpretation of its local rules, Bias v. Moynihan, 508 F.3d
1212, 1223 (9th Cir. 2007), and agree that the rule appears to
give district judges discretion to deny attorneys for the United
States permission to appear pro hac vice.

However, that discretion is not unbounded. Local Rule
IA 10-3 does not empower a district court to refuse pro hac
vice admission arbitrarily. See Zambrano v. City of Tustin,
885 F.2d 1473, 1483 (9th Cir. 1989) (“Admission to a state
bar creates a presumption of good moral character that cannot
be overcome at the whims of the District Court.” (quoting In
re Evans, 524 F.2d 1004, 1007 (5th Cir. 1975) (internal
quotations marks omitted))); cf. Munoz, 439 F.2d at 1179
(expressing confidence that the district judge “will not
exercise his discretionary power arbitrarily” and therefore
declining to “fix precise guidelines” governing pro hac vice
admission under a district’s local rules). Therefore, a district
court must articulate a valid reason for its exercise of
discretion. See Roma Constr. Co. v. aRusso, 96 F.3d 566,
577 (1st Cir. 1996); cf. United States v. Ries, 100 F.3d 1469,
1472 (9th Cir. 1996) (holding, in a criminal case, that “[i]n
 IN RE UNITED STATES 19

denying a pro hac vice application, the judge must articulate
his reasons, for the benefit of the defendant and the reviewing
court”).

We have offered little guidance about what constitutes a
valid reason for denying pro hac vice admission in a civil
case. Some of our sister circuits permit district courts to deny
an application for pro hac vice admission only in rare
circumstances. For instance, the Fifth Circuit has held that

[a]n applicant for admission pro hac vice who
is a member in good standing of a state bar
may not be denied the privilege to appear
except “on a showing that in any legal matter,
whether before the particular district court or
in another jurisdiction, he has been guilty of
unethical conduct of such a nature as to justify
disbarment of a lawyer admitted generally to
the bar of the court.”

In re Evans, 524 F.2d at 1007 (quoting Sanders v. Russell,
401 F.2d 241, 247–48 (5th Cir. 1968)). The Eleventh Circuit
has continued to apply this stringent standard following its
split from the Fifth Circuit. See Schlumburger Techs., Inc. v.
Wiley, 113 F.3d 1553, 1561 (11th Cir. 1997) (“Absent a
showing of unethical conduct rising to a level that would
justify disbarment, the court must admit the attorney.”). In
other circuits, district courts have broader discretion to refuse
pro hac vice admission. For instance, the Sixth Circuit has
held that an attorney’s pro hac vice admission may be
revoked where conflicts of interest exist, or where “some
evidence of ethical violations was present.” D.H. Overmeyer
Co., Inc. v. Robson, 750 F.2d 31, 34 (6th Cir. 1984). And the
Fourth Circuit has held that a district court may deny an
20 IN RE UNITED STATES

attorney permission to appear pro hac vice based on the
attorney’s “unlawyerlike conduct in connection with the case
in which he wished to appear.” Thomas v. Cassidy, 249 F.2d
91, 92 (4th Cir. 1957) (per curiam).

We need not announce specific factors that should inform
a district court’s exercise of its discretion to deny pro hac vice
admission. To resolve this case, we need only define the
outer limits of that discretion. At minimum, a court’s
decision to deny pro hac vice admission must be based on
criteria reasonably related to promoting the orderly
administration of justice, see Ries, 100 F.3d at 1471, or some
other legitimate policy of the courts, see Roma Constr. Co.,
96 F.3d at 577 (concluding that a district court abused its
discretion where its decision to deny pro hac vice admission
was “based on criteria that are not set forth in writing, that do
not reasonably support its action, and that do not appear to
respond to any general policy of the District . . . .”).

We recognize that “counsel from other jurisdictions may
be significantly more difficult to reach or discipline than local
counsel.” Ries, 100 F.3d at 1471. However, “[a]dmission to
the state bar is the essential determinant of professional ethics
and legal competence,” and, in practice, “the application
process for admission before the federal district courts is
generally perfunctory and pro forma.” Zambrano, 885 F.2d
at 1483. Therefore, if a court has ethical doubts about an
attorney who is in good standing with a state bar, it must
articulate some reasonable basis for those doubts before
 IN RE UNITED STATES 21

denying the attorney’s application for pro hac vice
admission.8

We conclude that the district court’s decision to deny pro
hac vice admission to Lowe was arbitrary, and therefore lay
outside the district court’s discretion. In the order denying
Lowe’s motion, the district court found that she was an active
member in good standing of the Massachusetts bar. The
district court nonetheless denied the motion, stating: “[b]efore
the Court will permit Ms. Lowe to practice before this Court,
the Court requires a showing that the Nevada admitted
Assistant United States Attorneys in our judicial district are
incapable of handling this matter.” The district court cited no
reason, except its own policy, for refusing to admit Lowe.
We note that Judge Jones has explained in other cases that he
adopted his policy of refusing to admit government attorneys
pro hac vice based on doubts about “the ethical
commitments” of government attorneys. Generalized doubts
about all government attorneys’ ethical commitments are not
valid grounds for denying an individual attorney’s application
for pro hac vice admission. We therefore conclude that Judge
Jones acted outside his discretion by failing to provide a valid
reason to deny Lowe’s application for pro hac vice admission.

It is particularly important that a district court provide a
valid reason for denying pro hac vice admission where, as
here, the attorney seeking admission represents the United
States. The Attorney General has clear statutory authority to
choose which attorneys will represent the United States in

8
A district court would clearly act within its discretion in denying pro
hac vice admission if, for example, an attorney’s actions led the court to
conclude the attorney would not “abide by the court’s rules and practices”
or “be readily answerable to the court.” Ries, 100 F.3d at 1471.
22 IN RE UNITED STATES

litigation. See 28 U.S.C. §§ 515(a), 517; Hall, 145 F.2d at
783–84. That authority does not mandate that district courts
automatically grant government attorneys’ applications for
pro hac vice admission. See United States v. U.S. Dist. Court,
694 F.3d 1051, 1059 (9th Cir. 2012) (“When the United
States stands as a party before the court, the authority of the
Attorney General is no greater than that of any other party.
The Attorney General is not independent of the court’s
authority, including its authority over a settlement
conference.”). But “the federal government, though not
independent of the court’s authority, is also not like any other
litigant,” id., and a district court should “consider the unique
position of the government as a litigant in determining
whether to exercise its discretion,” In re Stone, 986 F.2d 898,
903 (5th Cir. 1993). For example, “[i]t is not open to serious
dispute that the Government is a party to a far greater number
of cases on a nationwide basis than even the most litigious
private entity . . . .” United States v. Mendoza, 464 U.S. 154,
159 (1984). Given the volume of litigation in which the
government is a party, arbitrary interference with the
government’s choice of counsel risks burdening the executive
branch in the discharge of its duties.

Such interference also risks creating the impression that
the courts are intruding upon the traditional prerogatives of
the political branches. “[C]ourts should not risk becoming
‘monitors of the wisdom and soundness of Executive
action.’” In re Stone, 986 F.2d at 904 (quoting Laird v.
Tatum, 408 U.S. 1, 15 (1972)). That risk is particularly acute
where, as here, a court adopts a policy that singles out
attorneys from specific departments and offices for greater
scrutiny. Moreover, some of Judge Jones’s comments risked
giving the impression that his admission policy was
motivated by his disagreement with the enforcement priorities
 IN RE UNITED STATES 23

of specific federal agencies. For instance, during a
proceeding in In re Hofsaess, No. 2:13-cv-01161-RCJ (D.
Nev.), Judge Jones stated:

My experience has been, in a number of cases,
that when I admit out-of-state licensed
attorneys for the U.S. Government, that they
feel no obligation to me under the ethical
standards of the Nevada Bar. . . . And some of
the directions taken by the Internal Revenue
Service and attorneys out of and licensed out
of Washington with respect to that is just
abhorrent to me.

(emphasis added). Similarly, an order denying a motion for
reconsideration in Great Basin Resource Watch v. U.S.
Bureau of Land Management, No. 13-cv-00078-RCJ-VPC
(D. Nev.), stated: “[t]he local United States Attorney, Mr.
Daniel G. Bogden, serves under an Attorney General who,
under the guise of prosecutorial discretion, selectively
enforces laws to further political objectives that ought to be
left to the legislature. There is simply no presumption that
his subordinates are above ethical reproach.” (emphasis
added). Because Judge Jones did not articulate a valid reason
for his pro hac vice admission policy, comments like these
created a real risk that the policy would, rightly or wrongly,
be viewed as an encroachment on the domain of the political
branches.

Because the requirement of clear error is satisfied here,
we turn to the other four Bauman factors.
24 IN RE UNITED STATES

B. Whether the United States Has No Other Means to
Obtain Relief And Whether the United States Will
Be Harmed in a Way Not Correctable on Appeal

“The first Bauman factor highlights the need for
mandamus to be used only when no other realistic alternative
is (or was) available to a petitioner.” Cole, 366 F.3d at 817;
see also Cheney, 542 U.S. at 367 (describing absence of
“adequate means to attain . . . relief” as a “prerequisite” to
issuance of the writ). The United States could not have
obtained relief through an appeal in this case because “the
denial of a petition for admission to a district court bar is
neither a final order appealable under 28 U.S.C. § 1291 . . .
nor an interlocutory order appealable under 28 U.S.C.
§ 1292.” Gallo v. U.S. Dist. Court, 349 F.3d 1169, 1176 (9th
Cir. 2003); see also Cohen, 586 F.3d at 710 (“lost choice of
counsel cannot be adequately remedied through means other
than mandamus . . . .”). We are therefore satisfied that the
writ is not being “used as a substitute for the regular appeals
process.” Cheney, 542 U.S. at 380–81.

It is true that the United States could have filed a formal
complaint against Judge Jones with the Judicial Council of
the Ninth Circuit before seeking a writ of mandamus. See
28 U.S.C. §§ 351–53. But the United States could not have
obtained the relief it seeks by filing a misconduct complaint.
As Judge Wallace’s concurrence in the judgment notes, the
Judicial Council’s procedures “are not intended to provide an
alternative avenue for appealing a judge’s rulings in a
particular case . . . .” In re Charge of Judicial Misconduct,
613 F.2d 768, 769 (9th Cir. 1980). The United States could
have complained that Judge Jones’s “pattern and practice of
arbitrarily and deliberately disregarding prevailing legal
standards” amounted to “misconduct.” See In re Judicial
 IN RE UNITED STATES 25

Conduct & Disability, 517 F.3d 558, 562 (U.S. Jud. Conf.
2008). However, the Judicial Conference of the United States
has cautioned that “the characterization of such behavior as
misconduct is fraught with dangers to judicial independence.”
Id. For this reason,

a cognizable misconduct complaint based on
allegations of a judge not following prevailing
law or the directions of a court of appeals in
particular cases must identify clear and
convincing evidence of willfulness, that is,
clear and convincing evidence of a judge’s
arbitrary and intentional departure from
prevailing law based on his or her
disagreement with, or willful indifference to,
that law.

Id. Indeed, because “[t]he Judicial Council is not a court and
thus cannot determine whether a judge’s rulings are
erroneous,” “a complainant must at a minimum allege that the
rulings in question have been reversed on appeal.” In re
Judicial Misconduct, 631 F.3d 961, 962 (9th Cir. 2011).
Because the government’s requested relief relates to the
merits of Judge Jones’s rulings, and those rulings have not
been reversed on appeal, it appears that the Judicial Council
could not provide the relief that the government seeks in its
mandamus petition. Judge Wallace’s point is well taken that
Judge Jones’s practice of reversing himself after the
government has filed a petition for a writ, thereby insulating
his rulings from review, may itself qualify as the type of
conduct properly addressed by the Judicial Council.
However, by its terms, the government’s mandamus petition
challenges a particular order denying a particular motion, not
a pattern and practice of routinely reversing his orders to
26 IN RE UNITED STATES

insulate them from appellate review. We do not see why the
government should be forced to recharacterize the relief it
seeks in order to seek relief from the Judicial Council.
Indeed, the prospect that the government would be forced to
request different relief from the Judicial Council strongly
suggests that pursuing a misconduct complaint was not an
adequate alternative means to obtain relief.

With respect to the related second Bauman factor, we
have recognized that a lost choice of counsel produces “harm
[that] is not correctable on appeal.” Cohen, 586 F.3d at 710
(citing cases). The United States was harmed when Lowe
was denied pro hac vice admission. This immediate harm
was remedied when Judge Jones granted Lowe’s application
for pro hac vice admission after the petition was filed.
However, we recognize that the United States also has
interests in avoiding uncertainty and delay in securing pro hac
vice admission of government attorneys in the future. It
cannot adequately protect these interests by filing successive
petitions for writs of mandamus, even if the petitions again
cause Judge Jones to admit the attorneys. The United States
will still be inconvenienced by the delay.

The first and second Bauman factors weighed in favor of
issuing mandamus when the petition was filed, and weigh in
favor of offering guidance to the district court.

C. Whether the District Court’s Order Is An Oft-
Repeated Error

There are several other cases in which Judge Jones has
issued similar orders. The fact that Judge Jones’s order in
this case was not an isolated occurrence weighed in favor of
granting mandamus relief when the petition was filed. We
 IN RE UNITED STATES 27

place significant weight on this factor in this case because it
demonstrates that the United States has a continuing need for
relief, and that guidance is therefore warranted, even though
Lowe has been admitted.

D. Whether the District Court’s Order Raises
Important Problems or Issues of First Impression

The order at issue here raises important problems. We
find it highly relevant that the conduct complained of could,
if allowed to continue, burden the Executive in the
performance of its duties. See Cheney, 542 U.S. at 382
(“Accepted mandamus standards are broad enough to allow
a court of appeals to prevent a lower court from interfering
with a coequal branch’s ability to discharge its constitutional
responsibilities.”). We also note that this dispute resembles
a handful of other cases in which we have issued mandamus
to clarify the authority of the district courts in litigation
overseen by the Attorney General. See United States v. U.S.
Dist. Court, 694 F.3d 1051 (9th Cir. 2012); Hall, 145 F.2d
781. This factor weighed in favor of mandamus relief when
the petition was filed and weighs in favor of offering
guidance to the district court even though a formal writ is no
longer necessary.

E. Mandamus Relief Would Have Been Appropriate,
But a Formal Writ Is No Longer Necessary

After weighing the Bauman factors, we are convinced that
it is appropriate to offer guidance to the district court. Issuing
a formal writ would have been an appropriate remedy but for
Judge Jones’s voluntary cessation, and there is a continuing
need to decide the issues the petition raises. It is true, as
Judge Wallace notes in his concurrence in the judgment, that
28 IN RE UNITED STATES

it will often be possible to resolve disputes about judicial
administration informally through, for instance, the
involvement of chief district judges. Informal efforts have
been undertaken in this case. The record does not disclose
whether those efforts have caused Judge Jones to modify or
abandon his pro hac vice policy. However, it is clear to us
that, by one important measure, the informal efforts
undertaken here have not proven effective, because they have
not produced a public record upon which the government
may rely if the challenged conduct recurs. Absent a record
memorializing the resolution of the issues presented by the
petition, the government will continue to face considerable
uncertainty about whether its attorneys will be admitted pro
hac vice.

For reasons discussed supra, it is not necessary to issue a
formal writ in this case. We are confident that the district
court will conform its decisions to the principles we announce
here. See Phoenix Newspapers, 156 F.3d at 952; Armster v.
U.S. Dist. Court, 792 F.2d 1423, 1431 (9th Cir. 1986)
(Armster I); Brooklier, 685 F.2d at 1173. We accordingly
deny the petition without prejudice.

CONCLUSION

For the above reasons, we DENY the petition without
prejudice.
 IN RE UNITED STATES 29

WALLACE, Circuit Judge, concurring in the judgment:

I concur only in the judgment to deny the writ of
mandamus. Judge Jones’s reversal of his prior order denying
admission to government attorneys renders unnecessary the
government’s petition for a writ of mandamus. This is where
our analysis should end. See In re Am. Fed’n of Gov’t Emps.,
AFL-CIO, 837 F.2d 503, 507 (D.C. Cir. 1988) (denying
petition for writ of mandamus and observing that “[w]here
there’s no remedy, there’s no need to decide if there was a
wrong”). In my view, our statutory writ authority is an
improper vehicle for providing hopeful but non-binding
assurances that Judge Jones will discontinue his practice of
routinely denying admission to the government’s out-of-state
attorneys, and then reversing course when such denials
become subject to appellate review. The proper, and frankly
more effective, place from which the government may obtain
such assurances is the Judicial Council of the Circuit (Circuit
Council).

I.

In 1939, Congress passed legislation instituting a
comprehensive plan of decentralized judicial administration.
The Administrative Office Act of 1939 (Act) created the
Administrative Office of the United States Courts, and
thereby effectively transferred responsibility for supervising
court administration from the Department of Justice to the
courts themselves. The primary purpose of the Act was “to
furnish to the Federal courts the administrative machinery for
self-improvement, through which those courts will be able to
scrutinize their own work and develop efficiency and
promptness in their administration of justice.” H.R. Rep. No.
76-702, at 2 (1939).
30 IN RE UNITED STATES

Integral to this goal was the creation of a Circuit Council
in each circuit to act as a local “board of directors” for the
circuit. See Chandler v. Judicial Council of the Tenth Circuit
of the United States, 398 U.S. 74, 86 n.7 (1970). Presently,
the Circuit Council consists of the chief judge of the circuit,
who presides, and an equal number of circuit and district
judges of the circuit. 28 U.S.C. § 332(a)(1). Unlike the
Judicial Conference of the Circuit, whose “purely advisory”
function is “to provide an opportunity for friendly interchange
among judges and between bench and bar, out of which might
grow increased understanding of problems of judicial
administration and enhanced cooperation toward their
solution,” the Circuit Council is “designed as an actual
participant in the management of the judicial work of the
circuit.” Chandler, 398 U.S. at 98 (Harlan, J., concurring).

Indeed, the Circuit Council is presently vested with broad
authority to “make all necessary and appropriate orders for
the effective and expeditious administration of justice within
its circuit.” 28 U.S.C. § 332(d)(1). In aid of this authority, the
Circuit Council may hold hearings, take sworn testimony, and
issue subpoenas. Id. The Circuit Council also possesses
review authority over district courts’ local rules to ensure
their consistency with the Supreme Court’s general rules of
practice, procedure, and evidence. Id. § 332(d)(4).
Importantly, these powers come with teeth:

All judicial officers . . . of the circuit shall
promptly carry into effect all orders of the
judicial council. In the case of failure to
comply with an order made under this
subsection, . . . a judicial council or a special
committee . . . may institute a contempt
proceeding in any district court in which the
 IN RE UNITED STATES 31

judicial officer . . . who fails to comply with
the order . . . shall be ordered to show cause
before the court why he or she should not be
held in contempt of court.

Id. § 332(d)(2).

In 1980, the Judicial Conduct and Disability Act built
upon the Administrative Office Act, and augmented the role
of the judicial council in investigating judges whose conduct
is prejudicial the “effective and expeditious administration of
justice.” Id. The Circuit Council has power to conduct
investigations of such alleged conduct so long as the conduct
is not “directly related to the merits of a decision or
procedural ruling,” id. § 352(b)(1)(A)(ii), and does not rise to
the level of an impeachable offense. See J. Clifford Wallace,
Resolving Judicial Corruption While Preserving Judicial
Independence: Comparative Perspectives, 28 Cal. W. Int’l
L.J. 341, 348–49 (1998).

Since its institution, the Circuit Council has been the
primary administrator of discipline within the federal
judiciary. Most of the Circuit Council’s work in this regard is
performed informally and inconspicuously, and with great
effectiveness. See generally Charles Gardner Geyh, Informal
Methods of Judicial Discipline, 142 U. Pa. L. Rev. 243
(1993). As one former chief judge has said: “[W]e believe
[the Circuit Council’s] success may be measured by its lack
of visibility. We suspect that some who have criticized
councils for inactivity are unmindful of the saw that still
waters run deep, and that the most effective actions are often
the most inconspicuous.” In re Imperial “400” Nat’l, Inc.,
481 F.2d 41, 47 (3d Cir. 1973). Indeed, our own Circuit
Council has long been successful in dealing with judicial
32 IN RE UNITED STATES

misconduct “through an informal mechanism, backed up by
[its] power to enter orders if necessary under . . . § 332.” U.S.
Court of Appeals for the Ninth Circuit, Report on the
Implementation of the Judicial Conduct and Disability Act of
1980 in the Ninth Judicial Circuit (1987). My own experience
as former chief judge and as a current member of the Circuit
Council bears this out. Typically, even the most serious
judicial problems are resolved successfully without the filing
of a formal complaint.

Occasionally, however, it may become necessary to
initiate a formal complaint against a judge who (1) has
“engaged in conduct,” 28 U.S.C. § 351(a); (2) that is not
“directly related to the merits of a decision or procedural
ruling,” id. § 352(b)(1)(A)(ii); (3) but is “prejudicial to the
effective and expeditious administration of the business of the
courts,” id. § 351(a). The Judicial Code provides that “[a]ny
person alleging that a judge has engaged in [such] conduct
. . . may file . . . a written complaint containing a brief
statement of the facts.” Id. Alternatively, the chief judge may,
on the basis of information available to him or her, “identify”
a complaint through a written order “and thereby dispense
with the filing of a written complaint.” Id. § 351(b).

Once a complaint has been filed or identified, the chief
judge must expeditiously review it to determine “whether
appropriate corrective action has been or can be taken without
the necessity for a formal investigation,” or whether the facts
stated in the complaint are “plainly untrue” or “incapable of
being established through investigation.” Id. § 352(a). During
this process, the chief judge may request that the judge whose
conduct is the subject of complaint file a written response. Id.
 IN RE UNITED STATES 33

The chief judge may then issue a final written order
(1) dismissing the complaint for various enumerated reasons,
see id. § 352(b)(1); or (2) concluding that appropriate
corrective action has been taken or that intervening events
have rendered the complaint unnecessary, id. § 351(b)(2).
Failing those, however, the chief judge must appoint a special
committee to investigate the allegations in the complaint. Id.
§ 353(a). The committee then conducts an investigation and
files a comprehensive written report with the entire Circuit
Council, with recommendations for appropriate action. Id.
§ 353(c).

The Circuit Council may conduct additional investigation,
dismiss the complaint, or take action against the judge whose
conduct is the subject of complaint, including issuance of a
private or public reprimand. Id. § 354(a)(1)–(2).

II.

Instead of a non-binding advisory opinion, the statutory
procedures outlined above provide the proper vehicle by
which the United States may potentially obtain the assurances
it seeks in this case. The government could, for example, seek
a specific order from the Circuit Council under section 332
correcting Judge Jones’s alleged pattern and practice of
denying, as a matter of course, admission to out-of-state
government attorneys, coupled with his subsequent reversal
whenever such denial becomes the subject of a petition for a
writ of mandamus. See J. Clifford Wallace, Must We Have
the Nunn Bill?, 51 Ind. L.J. 297, 322 (1976) (observing that
the Circuit Council’s power to issue orders likely includes the
“issuance of ‘specific orders, directed to individual judges,
and limited to the correction of a specific situation for which
that judge can be held directly responsible,’” quoting
34 IN RE UNITED STATES

Comment, The Authority of the Circuit Judicial Councils:
Separation of Powers in the Courts of Appeal, 5 Seton Hall
L. Rev. 815, 860 (1974)). Indeed, “[a]n order by the Council
to a district judge . . . involve[s] supervision of a subordinate
judicial officer,” and “in this regard, [is] not unlike the
extraordinary writ of mandamus.” Chandler, 398 U.S. at 106
(Harlan, J., concurring). Such an order may be especially
appropriate given the Circuit Council’s authority to review
the local rules of district courts, including the local rule upon
which Judge Jones relied to deny routinely admission to out-
of-state government attorneys. See 28 U.S.C. § 332(d)(4).

Alternatively, the government could file a complaint with
the Circuit Council against Judge Jones. Indeed, the House
Report on the Judicial Conduct and Disability Act
contemplated use of the formal complaint procedure in this
very circumstance: “If a clear impediment to the
administration of justice is shown . . . the circuit council
could hear a case brought against a judge who is a litigant in
a legal proceeding.” H.R. Rep. No. 96-1313, at 8 (1980).

Of course, it bears emphasizing that the Circuit Council
is not an alternative appellate forum in which to address the
merits of a judge’s order. In re Charge of Judicial
Misconduct, 613 F.2d 768, 769 (1980) (the Circuit Council’s
procedures “are not intended to provide an alternate avenue
for appealing a judge’s rulings in a particular case”). Indeed,
the Circuit Council does not review “objections to substantive
or procedural error” because “in such cases the gravamen of
the complaint is not the fitness of the judge, but the merit of
his decision.” In re Charge of Judicial Misconduct, 685 F.2d
1226, 1227 (9th Cir. 1982). Here, however, the gravamen of
the government’s complaint is not the merits of Judge Jones’s
decision to deny government attorneys admission in the
 IN RE UNITED STATES 35

present case—otherwise the government would not still be
pressing for a writ after Judge Jones reversed course, granting
them the particular relief they asked us compel through a
writ. Rather, the government seeks an assurance that Judge
Jones’s pattern and practice of routinely denying out-of-state
government attorneys admission—and subsequently reversing
himself to insulate such orders from appellate review—will
not happen in the future. Such forward-looking relief is not
within our statutory mandamus power as a three-judge panel,
but it falls well within the statutory purview of the Circuit
Council.

Indeed, the Committee on Judicial Conduct and
Disability, a sub-part of the Judicial Conference of the United
States, recently recognized that “a judge’s pattern and
practice of arbitrarily and deliberately disregarding prevailing
legal standards and thereby causing expense and delay to
litigants may be misconduct.” In re Judicial Conduct and
Disability, 517 F.3d 558, 562 (U.S. Jud. Conf. 2008).
Subsequently, however, Judge Kozinski, during his tenure as
chief judge, issued an order clarifying that to avoid the
merits-related bar on judicial misconduct complaints by
alleging a “pattern or practice,” “a complainant must at a
minimum allege that the rulings in question have been
reversed on appeal,” because the Circuit Council “cannot
determine whether a judge’s rulings are erroneous.” In re
Judicial Misconduct, 631 F.3d 961, 962 (9th Cir. 2011). But
here, Judge Jones has insulated himself from appellate review
by reversing course whenever a petition has been filed, thus
rendering ineffective any petition for a writ of mandamus.
The Supreme Court clarified decades ago, quoting our
circuit’s precedent, that “[a]lthough it is well established that
Judicial Councils do not exist to review claims that a
particular trial judge’s rulings were erroneous, In re Charge
36 IN RE UNITED STATES

of Judicial Misconduct, 613 F.2d 768 (9th Cir. 1980), they do
exist ‘to provide an administrative remedy for misconduct of
a judge for which no judicial remedy is available.’ In re
Charge of Judicial Misconduct, 595 F.2d 517 (9th Cir.
1979).” Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 435
n.2 (1985). See also Wright & Miller, Fed. Prac. & Proc.
§ 3939 (“Judicial council action is most obviously proper
even with respect to isolated conduct if there is no apparent
remedy by appeal or writ . . . .”). Judge Jones’s pattern of
denying admission and then reversing himself only after the
government files a petition for a writ—which insulates his
rulings from “remedy by appeal or writ”—likely qualifies,
therefore, as the type of conduct that is most properly
addressed by the Circuit Council. Even if the Circuit Council
could not opine on the merits of Judge Jones’s denial,
moreover, it surely could prevent him from engaging in a
practice of insulating his denials from appellate review.

The majority concludes that their advisory opinion is
necessary because at the time the petition was filed, i.e.,
before Judge Jones reversed himself, the Bauman factors
weighed in favor of issuing a writ. But Bauman’s first
factor—whether the “party seeking the writ has no other
adequate means, such as a direct appeal, to attain the relief he
or she desires”— is a prerequisite, the Supreme Court has
held, to issuance of the writ. Cheney, 542 U.S. at 381. The
purpose of the first Bauman factor is to assess only the
“availability” of an adequate alternative means, not to
consider whether the petitioner is likely to be successful in
employing it. Bauman, 557 F.2d 650 at 656. Indeed, Bauman
states,“the availability of a direct appeal would weigh
strongly against a grant of mandamus. . . . [E]ven if the grant
of an interlocutory appeal from the order is not a foregone
conclusion, the possibility remains . . . that a[n] appeal may
 IN RE UNITED STATES 37

be available. That possibility, or uncertainty, regarding
appealability militates against issuance of a writ here.” Id.
(emphasis added).

The majority is content to assume that “pursuing a
misconduct complaint was not an adequate alternative means
to obtain relief.” However, in this case, as in Bauman, even
though it was “not a foregone conclusion” that the United
States would obtain the relief it seeks through the filing of a
formal complaint, it is clear that the “availability” of an
adequate alternative means—even if “uncertain[]”—militates
against issuance of a writ in this case. I would therefore hold
that this “prerequisite” for issuance of mandamus, Cheney,
542 U.S. at 381, was not satisfied here, at the time the petition
was filed or after. Consequently, even under the majority’s
own rubric, it should not be issuing an advisory opinion in
this case.

In sum, we properly denied the government’s petition for
a writ of mandamus because Judge Jones’s voluntary reversal
rendered it unnecessary. However, our denial does not leave
the government without an avenue for the relief it seeks.
Particularly in the present case, which involves a district
judge’s pattern and practice across many cases, followed by
his voluntary self-reversal in those cases that become subject
to appellate review, the government could, if necessary, seek
relief from the Circuit Council. If the government deems it
necessary to file a future misconduct complaint to address
Judge Jones’s alleged pattern and practice, the chief judge
may determine that further investigation is warranted. In that
event, if the Circuit Council’s investigation supports the
government’s allegations, the Circuit Council may, in its
discretion, issue a public reprimand providing the assurances
that the government seeks.
38 IN RE UNITED STATES

III.

In light of the role Congress established for the Circuit
Council in resolving the issues the government raises here,
our court should abstain from using the blunt instrument of
our section 1651 writ authority to offer nonbinding guidance
to district courts, especially when subsequent events render
issuing the writ unnecessary. See Richardson-Merrell,
472 U.S. at 435 n.2 (observing that action by the Circuit
Council is appropriate where judicial remedies are
unavailable).

Our court has strayed in recent years from the traditional
understanding that our mandamus authority is sharply limited
to truly extraordinary circumstances in which no alternative
remedy—judicial or administrative—is available. As the
majority points out, our court has sometimes offered “advice”
to district judges on legal issues for which there was no
judicial writ remedy when it has concluded that the alleged
wrongs were capable of repetition but evaded review. See,
e.g., Phoenix Newspapers, Inc. v. U.S. Dist. Court for the
Dist. of Ariz., 156 F.3d 940, 948–49 (9th Cir. 1998). This
practice appears to be an extension of several earlier cases in
which our court invoked a so-called “supervisory mandamus”
authority to “provide necessary guidance to the district
courts” regarding “questions of law of major importance to
the administration of the district courts.” In re Cement
Antitrust Litig., 688 F.2d 1297, 1307 (9th Cir. 1982); see also
Admiral Ins. Co. v. U.S. Dist. Court for the Dist. of Ariz.,
881 F.2d 1486, 1491 (9th Cir. 1989) (stating that “exercise of
supervisory mandamus authority” was warranted because the
case involved an “important question of first impression” that
would “elude review”). This in spite of there being no case or
controversy before the court.
 IN RE UNITED STATES 39

The term “supervisory mandamus” owes its existence to
a blip in Supreme Court jurisprudence from the 1957 case of
La Buy v. Howes Leather Co., 352 U.S. 249 (1957). In La
Buy, over a blistering dissent by Justice Brennan joined by
Justices Frankfurter, Burton, and Harlan, the Court stated its
belief that “supervisory control of the District Courts by the
Courts of Appeals is necessary to the proper judicial
administration in the federal system. The All Writs Act
confers on the Courts of Appeals the discretionary power to
issue writs of mandamus in . . . exceptional circumstances.”
Id. at 259–60.

Two decades later, we observed in Bauman v. U.S. Dist.
Court, 557 F.2d 650 (9th Cir. 1977), that “[s]ince the advent
of the concept of ‘supervisory mandamus’ in La Buy . . . the
challenge to the federal appellate courts has been to formulate
objective principles to guide the exercise of their section 1651
power.” Id. at 653. We cautioned against the “obvious”
“dangers of unprincipled use of that power,” which “could
readily subvert the policies underlying the finality rule” or the
“congressional scheme governing interlocutory appeals,” and
which could “undermine the mutual respect . . . between
federal trial and appellate courts.” Id. We pointed out that
“without articulable and practically applicable guidelines to
govern the issuance of extra-ordinary writs, appellate judges
would continually be subject to the temptation to grant such
relief merely because they are sympathetic with the purposes
of the petitioners’ underlying actions, or because they
question the trial court’s ability to direct the litigation
efficiently or impartially.” Id. at 653–54. In light of those
dangers, we instituted a five-factor test to bring principled
guidance to the exercise of section 1651 power, recognizing
that its “continuing effectiveness . . . depends on its reasoned
and principled exercise.” Id. at 654.
40 IN RE UNITED STATES

Despite the potentially broad interpretations that Courts
of Appeals might be tempted to derive from La Buy, they
would do well to observe that the Court has since retreated
considerably from this expanded use of mandamus that it
seemed to sanction in 1957. Indeed, in its most recent
articulation of our statutory mandamus authority, the Court
reiterated that the “traditional use of the writ in aid of
appellate jurisdiction . . . has been to confine [the court
against which mandamus is sought] to a lawful exercise of its
prescribed jurisdiction.” Cheney v. U.S. Dist. Court for the
Dist. of Columbia, 542 U.S. 367, 380 (2004) (alteration in
original) (internal quotation marks omitted). Consequently,
“only exceptional circumstances amounting to a judicial
usurpation of power or a clear abuse of discretion will justify
the invocation of this extraordinary remedy.” Id. (internal
quotation marks and citations omitted). This is a far cry from
offering advice on administrative issues, i.e., so-called
“supervisory mandamus.”

The foremost “prerequisite[]” to invoking statutory
mandamus authority is that the party seeking issuance of the
writ “have no other adequate means to attain the relief he
desires.” Id., quoting Kerr v. United States Dist. Court for the
N. Dist. of Cal., 426 U.S. 394, 403 (1976); see also Bauman,
557 F.2d at 654. The purpose of this threshold hurdle is to
“ensure that the writ will not be used as a substitute for the
regular appeals process.” Cheney, 542 U.S. at 380–81. In
accordance with this principle, our mandamus authority,
whether phrased as “supervisory” or not, must not be invoked
as a substitute for any “other adequate means” by which the
petitioner may “attain the relief he or she desires.” Bauman,
557 F.2d at 654.
 IN RE UNITED STATES 41

Our court should therefore avoid invoking “supervisory
mandamus” authority for anything it deems to implicate
questions of “major importance” whose “resolution would
add importantly to the efficient and orderly administration of
the district courts.” In re Cement Antitrust Litig., 688 F.2d at
1305. Congress has established extra-judicial mechanisms for
dealing with certain issues, and we must defer to Congress,
lest our so-called “supervisory” authority become a tool for
scattershot resolution of important issues of court
administration that Congress directed to be handled outside
the normal judicial process, through the judicial
administrative organization of the Circuit Council.

For example, we declined a petitioner’s invitation to
exercise a so-called “inherent supervisory authority” over
rules implemented under 28 U.S.C. § 2071 to review certain
plans issued by the district court pursuant to the Criminal
Justice Act (CJA). Russell v. Hug, 275 F.3d 812, 820–21 (9th
Cir. 2002). We refused to exercise any so-called supervisory
authority over such plans because in the CJA “Congress
granted to the Judicial Council a continuing authority to
supervise such plans.” Id. at 821. Because the statutory
“provisions ma[d]e clear that the district court’s adoption and
modification of a plan under the [CJA] is an administrative
matter, subject to the governance of the Judicial Council,” we
held that our appellate review authority under 28 U.S.C.
§ 1291 “does not authorize us to engage in supervisory
oversight of administrative actions of the district courts.” Id.

The same should be said about our mandamus authority
in light of the statutory provisions delegating responsibility
over the administrative issues presented in this appeal to the
Circuit Council. The Circuit Council has statutory review
authority over the local rule invoked by Judge Jones in
42 IN RE UNITED STATES

denying admission to non-local government attorneys.
Moreover, as set forth above, the Circuit Council has
statutory authority to issue orders to correct judicial conduct
that is prejudicial to the “effective and expeditious
administration of justice within its circuit.” 28 U.S.C.
§ 332(d)(1). Because this authority was given by Congress to
the Circuit Council, I cannot join the majority opinion. We
should not use our opinion denying the government’s petition
for a writ of mandamus to offer the guidance of two judges on
these administrative matters.

I therefore concur only in the judgment denying the writ
of mandamus.