Bitisillie v. Haaland

Opinion

_X__Fiep ____ RECEIVED ___ ENTERED ____SERVED ON JASON M. FRIERSON COUNSEL/PARTIES OF RECORD United States Attorney District of Nevada APR 25. 2024 Nevada Bar No. 7709 CLERK US DISTRICT COURT R. THOMAS COLONNA DISTRICT OF NEVADA Assistant United States Attorney Las Vegas Blvd. So., Suite 1100 BY EY Las Vegas, Nevada 89101 (702) 388-6336 Richard.Colonna@usdoj.gov Attorneys for the Federal Defendant UNITED STATES DISTRICT COURT 10} Marilyn Bitisillie, Case No. 3:23-cv-00545-CLB Plaintiff, Order Granting Unopposed Motion Vv. for Exception from Attendance Requirements for Early Neutral Debra Haaland, Evaluation (Zoom Video Conference) Defendant. Defendant Debra Haaland, in her official capacity as Secretary of U.S. Department of the Interior (“Federal Defendant”), moves for an exception from the requirements, as applicable, that the early neutral evaluation by video be attended by all parties and by a representative any insurance carrier with authority to settle the matter up to the full amount of the claim. See Order at 2:14-21, ECF No. 13. Undersigned defense counsel has consulted with Plaintiffs’ counsel, who advises that he does not object to the exception requested herein, namely, that the Federal Defendant be permitted to participate in the settlement conference via the video attendance of undersigned defense counsel, AUSA R. Thomas Colonna, with a representative of the Bureau of Indian Affairs (“BIA”) available by phone. There is no liability insurance carrier involved in this matter.

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I. Introduction This is an age and gender discrimination case brought by Plaintiff Marilyn Bitisille against her former supervisor, Robert Eben, and the Agency Bureau of Indian Affairs (“BIA”) of the U.S. Department of the Interior, for which she still works as a Branch Chief of the Self Determination Office. II. Points and Authorities The federal government is unlike other litigants in terms of geographic breadth, nature of issues, and number of cases. See United States v. Mendoza, 464 U.S. 154, 159 (1984). The authority to settle most civil cases against the government rests with varying management personnel within the local United States Attorney’s Office or at the Department of Justice (“DOJ”) headquarters, depending on the dollar amount and the concurrence of the client agency. See 28 C.F.R. § 0.168(a); 28 C.F.R. Part 0, Subpart Y, Appendix. As the advisory committee recognized, “[p]articularly in litigation in which governmental agencies . . . are involved, there may be no one with on-the-spot settlement authority, and the most that should be expected is access to a person who would have a major role in submitting a recommendation to the body or board with ultimate decision- making responsibility.” Fed. R. Civ. P. 16 advisory committee’s note (1993 amendment, subdivision (c)). Additionally, a district court can consider alternative methods of participation, such as via telephone. See United States v. U.S. Dist. Court, 694 F.3d 1051, 1061 (9th Cir. 2012). The United States Attorney’s Office understands the importance of ENEs, settlement conferences, and other alternate dispute resolution techniques in resolving civil cases. This office has participated in many of them, in good faith, and consistent with the authority set forth in the applicable regulations. Recommendations (through the respective DOJ and client agency chains of command) regarding any particular settlement proposal in this case will originate with the undersigned AUSA and assigned BIA attorney. Based on the reasons and circumstances above, the Federal Defendant respectfully requests exception from the Order’s requirements of attendance by a representative via video with binding settlement authority. In lieu of such requirements, the undersigned AUSAs would attend via video and participate, while a BIA representative would be available by phone. IW. Conclusion Based on the reasons and circumstances above, the United States respectfully requests that the Court grant this motion so as to allow AUSA Colonna to participate in the early neutral evaluation via video, with a BIA representative available by phone, in lieu of the video attendance requirements otherwise set forth in the Order, ECF No. 13. Respectfully submitted this 25th day of April, 2024. United States Attorney /s/ R. Thomas Colonna Assistant United States Attorney IT IS SO ORDERED: CS Ox. UNITED STATE GISTRATE JUDGE DATED: = April 25, 2024