United States v. Usdc-Nvr ( 2015 )


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  •                  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.