636 F. App'x 142
4th Cir.2015Background
- Murray Energy and other plaintiffs sued EPA alleging failure to comply with Section 321(a) of the Clean Air Act, which requires the Administrator to "conduct continuing evaluations of potential loss or shifts of employment." 42 U.S.C. § 7621(a).
- The district court ruled (first impression) that Section 321(a) imposes a non-discretionary duty and denied EPA's motion to dismiss for lack of jurisdiction.
- EPA moved for summary judgment, submitting 53 documents (RIAs, economic assessments, white papers) to show compliance, and conceded no other evaluations had been completed; plaintiffs sought discovery instead.
- Plaintiffs noticed a deposition of EPA Administrator Gina McCarthy; the district court denied EPA’s protective order, finding "extraordinary circumstances" based on alleged contradictions between McCarthy’s congressional statements and EPA’s litigation position.
- EPA petitioned this Court for a writ of mandamus to prevent McCarthy’s deposition, arguing (1) high-ranking officials may not be deposed absent extraordinary circumstances and (2) the district court erred in finding such circumstances here.
- The Fourth Circuit granted mandamus, concluding the district court had not shown a true contradiction or misconduct warranting deposing the Administrator and noting plaintiffs could pursue a Rule 30(b)(6) deposition of the agency.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Section 321(a) creates a mandatory duty | Section 321(a) is mandatory and EPA failed to perform required evaluations | EPA argued Section 321(a) is discretionary (challenged earlier; here relied on documents showing compliance) | Not decided by this mandamus opinion (district court previously held mandatory; Fourth Circuit expressed no view) |
| Whether the Administrator may be deposed | McCarthy’s congressional statements conflict with EPA’s litigation position; deposition needed to probe contradiction | High-ranking officials may not be deposed absent extraordinary circumstances; documents and Rule 30(b)(6) suffice | Deposition of McCarthy barred; no extraordinary circumstances shown |
| Whether statements to Congress created prima facie evidence of misconduct | Plaintiffs claimed McCarthy’s statements show EPA refused to comply with Section 321(a), supporting deposition | EPA said statements merely reflected that EPA had not conducted studies "pursuant to" §321(a) though other analyses exist | No prima facie misconduct found; insufficient to overcome protection against deposing senior officials |
| Whether there is a genuine contradiction between agency litigation materials and congressional statements | Plaintiffs argued the materials claiming compliance contradict McCarthy’s earlier letters/testimony | EPA explained documents were not prepared expressly under §321(a) but could nonetheless satisfy any duty | Court found no clear contradiction that would justify deposing the Administrator |
Key Cases Cited
- Franklin Sav. Ass'n v. Ryan, 922 F.2d 209 (4th Cir. 1991) (high‑level officials generally protected from deposition absent extraordinary circumstances)
- Simplex Time Recorder Co. v. Sec'y of Labor, 766 F.2d 575 (D.C. Cir. 1985) (same principle for agency heads)
- In re FDIC, 58 F.3d 1055 (5th Cir. 1995) (mandamus available to prevent deposition of senior official)
- U.S. Bd. of Parole v. Merhige, 487 F.2d 25 (4th Cir. 1973) (mandamus to protect high‑ranking officials from compelled testimony)
- In re United States (Jackson), 624 F.3d 1368 (11th Cir. 2010) (use of mandamus to limit intrusive discovery into executive deliberations)
- In re Cheney, 544 F.3d 311 (D.C. Cir. 2008) (restricting discovery into the thoughts of top executive officials)
- Singer Sewing Machine Co. v. NLRB, 329 F.2d 200 (4th Cir. 1964) (agency misconduct can justify probing mental processes when prima facie violations exist)
- Overnite Transp. Co. v. NLRB, 327 F.2d 36 (4th Cir. 1963) (context for finding agency violations that may permit deeper inquiry)