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In re Bundy

United States Court of Appeals, Ninth Circuit

March 30, 2017

In re: CLIVEN BUNDY,
v.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA, LAS VEGAS, Respondent, CLIVEN BUNDY, Petitioner, UNITED STATES OF AMERICA, Real Party in Interest.

          Submitted March 24, 2017 [*]

         Petition for Writ of Mandamus D.C. No. 2:16-cr-00046-GMN-PAL-1

          Before: W. FLETCHER, GOULD, and BYBEE, Circuit Judges.

          OPINION

          PER CURIAM:

          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 error.

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.).

          Barely 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.

         The 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.

         I

         There 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 since October:

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." Id.

         In re Bundy, 840 F.3d at 1040 (alterations in original). We further explained:

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 ...

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