                               UNPUBLISHED



                                                             December 9, 2015
                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT




                                No. 15-2390
                            (5:14-cv-000390JBP)



In re: GINA MCCARTHY, in her official capacity as Administrator
of the United States Environmental Protection Agency

                 Petitioner


                ___________________________________

        CORRECTED ORDER GRANTING WRIT OF MANDAMUS
                ___________________________________




     Before   the   Court     is   the       U.S.   Environmental   Protection

Agency’s (EPA) petition for a writ of mandamus precluding the

deposition of EPA Administrator Gina McCarthy in the case Murray

Energy Corp. v. McCarthy, No. 5:14-cv-00039-JPB, in the Northern

District of West Virginia.         On November 12, 2015, the district

court denied EPA’s motion for a protective order.             For the reasons

set forth below, we grant EPA’s petition for mandamus.

     Plaintiff energy companies brought this citizen suit alleging

that EPA had failed to comply with Section 321(a) of the Clean Air

Act (CAA), which provides: “[t]he Administrator shall conduct

continuing evaluations of potential loss or shifts of employment

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which may result from the administration or enforcement of the

provision of this chapter and applicable implementation plans,

including    where       appropriate,   investigating     threatened      plant

closures or reductions in employment allegedly resulting from such

administration or enforcement.”             42 U.S.C. § 7621(a).    EPA moved

to dismiss on the ground that Section 321(a) is discretionary and

thus the district court lacked jurisdiction. See 42 U.S.C. § 7604.

On September 16, 2014, the district court ruled, as a matter of

first impression, that Section 321(a) creates a non-discretionary

duty and denied EPA’s motion to dismiss.

        EPA then moved for summary judgment, relying on a set of

fifty-three documents to demonstrate its compliance with any non-

discretionary duty imposed by Section 321(a).               These documents

included Regulatory Impact Analyses, Economic Impact Assessments,

white    papers,   and    other   reports.      EPA   conceded   that    it   had

“completed no other evaluations of potential employment impacts of

the [CAA] at this time,” [Doc. 77 at 2], and that “[s]hould this

Court conclude that the documents do not satisfy the duty [in

Section 321(a)], then summary judgment should be entered against

EPA.”    [Doc. 76 at 18].      Plaintiffs opposed the motion, including

EPA’s proffer that Plaintiffs be granted summary judgment if the

documents were found not to satisfy Section 321(a).                     Instead,

Plaintiffs requested that EPA’s motion be held in abeyance pending



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the completion of discovery, which the district court granted.             On

October 7, 2015, Plaintiffs noticed the deposition of McCarthy.

     It is well established that high-ranking government officials

may not be deposed or called to testify about their reasons for

taking   official   actions     absent    “extraordinary     circumstances.”

See, e.g., Franklin Sav. Ass’n v. Ryan, 922 F.2d 209, 211 (4th

Cir. 1991); Simplex Time Recorder Co. v. Sec’y of Labor, 766 F.2d

575, 586 (D.C. Cir. 1985); In re FDIC, 58 F.3d 1055, 1060 (5th

Cir. 1995).   When such circumstances are not present, mandamus is

appropriate   to    prevent    a   district   court   from    compelling   an

official’s appearance.        See, e.g., U.S. Bd. of Parole v. Merhige,

487 F.2d 25, 29 (4th Cir. 1973), cert. denied, 417 U.S. 918 (1974);

In re United States (Jackson), 624 F.3d 1368, 1372–73 (11th Cir.

2010); In re Cheney, 544 F.3d 311, 314 (D.C. Cir. 2008).

     Here, the district court found extraordinary circumstances to

exist because of an apparent conflict between EPA’s position in

its summary judgment motion and its position before Congress.

Since 2009, McCarthy, on behalf of EPA, has responded to various

questions from members of Congress about Section 321(a). 1                 The




     1 For example, in a letter dated June 22, 2011, McCarthy
responded to a question posed by Congressman Darrell Issa regarding
EPA’s Section 321(a) analysis of its greenhouse gas regulations,
stating:
          The EPA has provided detailed regulatory impact
     analyses for each of its major greenhouse gas


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district court inferred from these responses that “EPA has never

made any evaluations of job losses under § 321(a).”    [Doc. 164 at

18].   The court found this to be “directly contrary to the position

of the EPA in this case,” id., namely, EPA’s statement that it “is

entitled to summary judgment because it has conducted ‘continuing

evaluations of potential loss or shifts of employment which may

result from the administration or enforcement of the provision of



     regulations that provide extensive information about the
     economic impact of those rules. . . .
          . . . .
          Section 321 was added in the 1977 amendments to the
     Clean Air Act. Both the House and Senate Committee
     Reports for the 1977 amendments describe the purpose of
     section 321 as addressing situations where employers
     make allegations that environmental regulations will
     jeopardize employment, possibly in order to stimulate
     union or other public opposition to environmental
     regulations. . . . The committee reports do not describe
     the provision as applying broadly to all regulations or
     implementation plans under the Clean Air Act.
          In keeping with congressional intent, the EPA has
     not interpreted section 321 to require the Agency to
     conduct employment investigations in taking regulatory
     actions. Conducting such investigations as part of
     rulemakings would have limited utility since section
     321(d) expressly prohibits the EPA . . . from “modifying
     or withdrawing any requirement imposed or proposed to be
     imposed   under  the   Act”   on  the   basis  of   such
     investigations. As noted above, section 321 was instead
     intended to protect employees in individual companies by
     providing a mechanism for the EPA to investigate
     allegations - typically made by employers - that
     specific requirements, including enforcement actions, as
     applied to those individual companies, would result in
     layoffs. The EPA has not received any request for any
     such investigation with regard to its [Greenhouse Gas]
     regulations.
[Doc. 157, Ex. 10 at 7].


                                  4
this chapter and applicable implementation plans,’ as required by

Section 321(a) of the Clean Air Act.”      [Doc. 76 at 1 (quoting 42

U.S.C. § 7621(a))].

     Accepting arguendo the district court’s characterization of

McCarthy’s statements, we fail to see the contradiction. 2   EPA did

not claim that the documents submitted with its summary judgment

motion were prepared “under” or “pursuant to” Section 321(a), or

for the purpose of complying with that section.         Indeed, EPA

explicitly conceded that “none of the documents upon which it

relies to demonstrate its performance of the duty in Section 321(a)

were prepared explicitly for that purpose or labeled as Section

321(a) evaluations.”    [Doc. 88 at 11].    It is not contradictory

for EPA to argue that the documents nevertheless satisfy whatever

obligation is imposed by Section 321(a).      Such a position seems

eminently reasonable in light of the fact that no court, including

the district court here, has ever explicated what Section 321(a)

requires. 3 Indeed, the district court may yet determine that EPA’s

documents satisfy Section 321(a).

         In short, we see no contradiction in EPA’s positions that

would support the district court’s finding of an extraordinary




     2 We express no view as to whether a contradiction, if present,
would constitute an extraordinary circumstance.
     3 The district court has reserved judgment on the scope of

injunctive relief it may award.

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circumstance.      We are similarly unpersuaded that there is no

alternative to deposing McCarthy because “only [she] can speak to

the dichotomy evidenced in her statements and EPA’s litigation

position.”     [Pls.’ Resp. to Second Petition for Writ of Mandamus

23].       Plaintiffs have not demonstrated a need for McCarthy’s

testimony beyond what is already in the public record, particularly

since the district court has authorized Plaintiffs to take a Rule

30(b)(6) deposition of the agency.

       Finally, the district court found EPA’s “apparent refusal” to

comply with Section 321(a) to constitute prima facie evidence of

wrongdoing.     [Doc. 164 at 19].   See Franklin Sav. Ass’n, 922 F.2d

at 211 (“Only where there is a clear showing of misconduct or

wrongdoing is any departure from this rule [that the judiciary may

not probe the mental processes of an executive or administrative

officer] permitted.”).     We disagree.   We see no clear misconduct

in EPA’s alleged failure to perform a duty that was not declared

to be mandatory until the district court so declared in this case. 4

Cf. Singer Sewing Machine Co. v. NLRB, 329 F.2d 200, 205, 208 (4th

Cir. 1964) (finding misconduct where there was prima facie evidence

that agency violated statute previously construed by multiple




       4
       Whether the district court properly found Section 321(a) to
create a mandatory duty is not before us, and we express no view
on that question.

                                    6
courts of appeals (citing Overnite Transp. Co. v. NLRB, 327 F.2d

36 (4th Cir. 1963))).

     For these reasons, EPA’s petition for a writ of mandamus is

granted.

     Entered at the direction of the panel:    Judge Motz, Judge

Gregory and Judge Floyd.



                                   For the Court

                                   /s/ Patricia S. Connor, Clerk




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