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In re McCarthy

ELR Citation: 45 ELR 20240
Nos. 15-2390, (4th Cir., 12/09/2015)

The Fourth Circuit granted EPA's petition for a writ of mandamus to preclude an energy company from deposing EPA Administrator Gina McCarthy in a lawsuit seeking to compel EPA to evaluate the CAA's impacts on jobs under §321(a). High-ranking government officials may not be deposed or called to testify about their reasons for taking official actions absent "extraordinary circumstances." When such circumstances are not present, mandamus is appropriate to prevent a district court from compelling an official's appearance. Below, a 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 concerning evaluations of job losses. But the appellate court disagreed, finding no such contradiction in EPA's positions. Nor has the company demonstrated a need for McCarthy’s testimony beyond what is already in the public record, particularly since the district court has authorized a Fed. R. Civ. P. 30(b)(6) deposition of the Agency. Last, the district court found EPA's "apparent refusal" to comply with §321(a) to constitute prima facie evidence of wrongdoing. But the appellate court saw 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.