Submitted March 24, 2017 [*]
for Writ of Mandamus D.C. No. 2:16-cr-00046-GMN-PAL-1
Before: W. FLETCHER, GOULD, and BYBEE, Circuit Judges.
Attorney Larry Klayman applied to be admitted pro hac
vice in the high-profile criminal trial of Cliven Bundy.
The district court denied his application without prejudice.
Bundy filed an emergency petition with us for a writ of
mandamus to force the district court to admit Klayman. We
declined to do so in October 2016. See In re Bundy,
840 F.3d 1034 (9th Cir. 2016). We wrote then:
Under our decisions, the district court had more than ample
cause to turn down Klayman's application: he is involved
in an ethics proceeding before the District of Columbia Bar,
and he was not candid with the court about the status of
those proceedings; he disclosed that he was twice barred
in perpetuity from appearing pro hac vice
before judges in the Central District of California and the
Southern District of New York, but he failed to list numerous
cases-all available on Westlaw or LEXIS-in which he has been
reprimanded, denied pro hac vice status, or
otherwise sanctioned for violating various local rules; and
he has a record of going after judges personally, and shortly
after Chief Judge Gloria Navarro denied his application,
Bundy filed a frivolous Bivens action against her in
her own court. This litany of reasons for denying Klayman
pro hac vice status demonstrates that the district
court did not abuse its discretion, much less commit clear
Id. at 1036. Bundy petitioned for en banc
review, but his petition was denied on December 13, 2016.
Bundy then petitioned the Supreme Court for a writ of
mandamus, but that petition, too, was denied on February 27,
2017. In re Bundy, No. 16-908, 2017 WL 237570 (U.S.
Feb. 27, 2017) (mem.).
a week later, Bundy, through Klayman, filed the instant
emergency petition for a writ of mandamus. Bundy cites to
"fundamentally changed circumstances that underscore
[his] compelling need to have a full legal defense team,
including Klayman, ready and able to represent him at
trial." Emergency Pet. for Writ of Mandamus at 6-7, Mar.
9, 2017, ECF No. 1 [hereinafter Petition]. The petition is
procedurally irregular in a number of respects. First,
Klayman purports to be representing Bundy in his request for
a writ of mandamus. Bundy has counsel of record, Nevada
attorney Bret O. Whipple. Whipple, however, did not sign the
motion, file an affidavit, or otherwise join in any way
Bundy's latest motion. Indeed, Bundy, in his reply filed
on March 23, explains that his current attorney refused to
file a new pro hac vice application on behalf of
Klayman because Whipple did not want to "tarnish his
reputation." Appellant's Br. in Reply to Hon. Gloria
Navarro's Answer and Real Party in Interest's Answer
at 11, Mar. 23, 2017, ECF No. 8 [hereinafter Reply]. We have
no affidavit or other evidence that Bundy authorized Klayman
to file this motion or still wants Klayman to join his
defense team. Nevertheless, Klayman, purporting to represent
Bundy, represents that "Mr. Klayman had no other
recourse but to file [the] instant Emergency Petition for
Writ of Mandamus." Id. Mr. Klayman's
"recourse" is his own affair; it is not clear that
he represents Bundy in anything he has presented to us. Why
Bundy (or Klayman) thinks that Whipple had to file a pro
hac vice application on behalf of Klayman, but
that Klayman could file a petition for a writ of mandamus on
behalf of Bundy, we do not understand.
motion is irregular for a second reason. It is not clear what
Bundy wants us to do, so it is not clear what standards we
must apply to the request. If Bundy is asking us to
reconsider our prior decision, the request is late. We have
already denied Bundy's petition for rehearing en
banc, and the Supreme Court has denied certiorari. If,
as Bundy claims, there are "fundamentally changed
circumstances, " then Klayman's renewed request for
admission pro hac vice should have been addressed to
the district court in the first instance. It was not, which
means-we think-that Bundy or Klayman is asking this court to
issue a writ of mandamus to the district court for its
failure sua sponte to admit Klayman pro hac
vice. So construing Bundy's motion, and because the
district court and government filed answers to the petition,
we will proceed to the merits.
are no merits. The standards by which we approach a petition
for a writ of mandamus to direct a district court to admit an
out-of-state attorney pro hac vice have not changed
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, '
three conditions must be satisfied before it may issue."
Id. (citation omitted). "First, 'the party
seeking issuance of the writ [must] have no other adequate
means to attain the relief he desires . . . .'"
Id. (first alteration in original) (quoting Kerr
v. U.S. Dist. Court, 426 U.S. 394, 403 (1976)). Second,
the petitioner must show that "[his] right to issuance
of the writ is 'clear and indisputable.'"
Id. at 381 (alteration in original) (quoting
Kerr, 426 U.S. at 403). "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."
re Bundy, 840 F.3d at 1040 (alterations in original). We
Because, on direct appeal, 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), our review in mandamus
proceedings is "especially deferential, " In re
United States, [791 F.3d 945');">791 F.3d 945, 955 (9th Cir. 2016)]. On
petition for a writ of mandamus, we look to see if the
district court abused ...