Usedu v. Usdc-Casf

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE U.S. DEPARTMENT OF No. 21-71108
EDUCATION; MIGUEL A. CARDONA,
in his official capacity as Secretary D.C. No.
of the Department of Education, 3:21-mc-80075-
WHA
U.S. DEPARTMENT OF EDUCATION;
MIGUEL A. CARDONA, in his official
capacity as Secretary of the
Department of Education,
Petitioners,
v.
UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF
CALIFORNIA, SAN FRANCISCO,
Respondent,
THERESA SWEET; ALICIA DAVIS;
TRESA APODACA; CHENELLE
ARCHIBALD; JESSICA DEEGAN;
SAMUEL HOOD; JESSICA JACOBSON,
on behalf of themselves and all
others similarly situated; ELISABETH
DEVOS, Former U.S. Secretary of
Education,
Real Parties in Interest.
2 IN RE U.S. DEPARTMENT OF EDUCATION
IN RE ELISABETH DEVOS, Former No. 21-71109
U.S. Secretary of Education,
D.C. No.
3:21-mc-80075-
ELISABETH DEVOS, Former U.S. WHA
Secretary of Education,
Petitioner,
OPINION
v.
UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF
CALIFORNIA, SAN FRANCISCO,
Respondent,
CHENELLE ARCHIBALD; TRESA
APODACA; ALICIA DAVIS; JESSICA
DEEGAN; SAMUEL HOOD; JESSICA
JACOBSON; THERESA SWEET; U.S.
DEPARTMENT OF EDUCATION;
MIGUEL A. CARDONA, in his official
capacity as Secretary of the
Department of Education,
Real Parties in Interest.
Petitions for a Writ of Mandamus
Argued and Submitted October 6, 2021
Seattle, Washington
Filed February 4, 2022
IN RE U.S. DEPARTMENT OF EDUCATION 3
Before: RICHARD A. PAEZ, MILAN D. SMITH, JR.,
and JACQUELINE H. NGUYEN, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.;
Dissent by Judge Paez
SUMMARY *
Writ of Mandamus / Subpoena
The panel granted in part, and denied in part, petitions
for a writ of mandamus brought by former U.S. Secretary of
Education Elisabeth DeVos, the current Secretary of
Education, and the U.S. Department of Education seeking to
direct the U.S. District Court for the Northern District of
California to quash a subpoena for the deposition of former
Secretary DeVos and to transfer the subpoena motion back
to the Southern District of Florida.
The case arose out of a lawsuit alleging that the
Department of Education unlawfully delayed making
decisions on student loans during DeVos’s tenure as
Secretary of Education.
The panel denied the request for a writ of mandamus
ordering the district court to transfer the subpoena motion to
the Southern District of Florida. The panel held that it did
not have jurisdiction to review the procedural or substantive
propriety of the Florida court’s transfer order. Here,
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 IN RE U.S. DEPARTMENT OF EDUCATION
however, the panel was not asked to review the propriety of
the Florida court’s transfer order, but rather its jurisdiction
to enter such an order. The panel held that it did have
jurisdiction to review the Florida court’s jurisdiction to enter
the order. The magistrate judge had jurisdiction to issue the
transfer order where the transfer order was nondispositive.
Jurisdiction remained even though the Florida district court
did not review objections to the magistrate judge’s transfer
order. Applying the Bauman factors for granting a writ of
mandamus, the panel declined to issue a writ of mandamus
on this jurisdictional issue because there was no error, any
alleged error was unlikely to often be repeated, there was no
prejudice, and there was no new or important issue at stake.
Turning to the writ of mandamus to quash the subpoena
for DeVos’s deposition, the panel applied separation of
powers principles, and held that extraordinary circumstances
sufficient to justify the taking of a cabinet secretary’s
deposition exist when the party seeking the deposition can
demonstrate: (1) a showing of agency bad faith; (2) the
information sought from the secretary is essential to the case;
and (3) the information sought from the secretary cannot be
obtained in any other way.
First, the Department’s bad faith was apparent to the
district court, and the panel saw no reason to question the
finding. The Department, during the process of negotiating
a settlement, sent out many application denials in
unreasoned form letters despite having previously claimed
that the eighteen-month delay in deciding the applications
were due, in part, to the time-intensive process of considered
decision-making.
Second, the district court erred in allowing DeVos’s
deposition because the information sought from DeVos,
IN RE U.S. DEPARTMENT OF EDUCATION 5
while perhaps relevant, was not essential to the claims
alleged by plaintiffs. Plaintiffs did not satisfy the second
prong of the required three-prong showing necessary to
establish extraordinary circumstances.
Third, the panel held that there was no indication that
DeVos held information that was essential to plaintiffs’ case
or that it was otherwise unobtainable. Accordingly, the
district court clearly erred in denying the motion to quash the
subpoena to take the deposition of DeVos.
The panel held that its reasoning applied even though
DeVos was no longer serving as the Secretary. The panel
noted that the other Bauman factors, besides clear error,
supported the issuance of the mandate.
Dissenting, Judge Paez disagreed with the majority for
two principal reasons. First, the district court did not clearly
err because no court of appeals has addressed the
“extraordinary circumstances” requirement in the context of
a former cabinet secretary who no longer has greater duties
and time constraints, and is otherwise protected by the
deliberative process privilege. Second, the district court did
not err at all because the majority’s new standard amounted
to mere distinctions without any meaningful difference and
the majority provided no support for rejecting the district
court’s holistic assessment of the record. Judge Paez would
deny the government’s petition for a writ of mandamus. He
concurred with the majority’s holding denying the writ of
mandamus concerning transfer of the subpoena motion back
to the Southern District of Florida.
6 IN RE U.S. DEPARTMENT OF EDUCATION
COUNSEL
Sean Janda (argued), Mark R. Freeman, Mark B. Stern, and
Joshua M. Salzman, Appellate Staff; Sarah E. Harrington,
Deputy Assistant Attorney General; United States
Department of Justice, Civil Division; Washington, D.C.; for
Petitioners United States Department of Education and
Miguel A. Cardona.
Jesse Panuccio (argued), Boies Schiller Flexner LLP, Fort
Lauderdale, Florida; David Boies, Boies Schiller Flexner
LLP, Armonk, New York; for Petitioner Elisabeth Devos.
Margaret E. O’Grady (argued) and Rebecca C. Ellis,
Harvard Law School Federal Tax Clinic at Legal Services
Center, Jamaica Plain, Massachusetts; Joseph Jaramillo,
Housing and Economic Rights Advocates, Oakland,
California; for Real Parties in Interest.
IN RE U.S. DEPARTMENT OF EDUCATION 7
OPINION
M. SMITH, Circuit Judge:
This case presents an important question concerning the
appropriate separation and balance of power between two
branches of our government: When can the judicial branch
compel a cabinet secretary to submit to a deposition in which
questions are propounded regarding her official actions?
Former United States Secretary of Education Elisabeth
DeVos, as well as the U.S. Department of Education
(Department), and the current Secretary of Education, ask us
to direct the United States District Court for the Northern
District of California (district court) to quash a subpoena for
the deposition of former Secretary DeVos. Although
granting this request is an extraordinary action, so too is
compelling the testimony of a cabinet secretary about the
actions she took as a leader in the executive branch. Such
questioning can only occur in extraordinary circumstances.
The circumstances demonstrated here fail to meet that
standard, so we grant the writ of mandamus, and direct the
district court to quash the subpoena. We also deny DeVos’s
petition to direct the district court to transfer the motion to
quash back to the Southern District of Florida.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of a lawsuit alleging that the
Department of Education unlawfully delayed making
decisions on student loans during DeVos’s tenure as
Secretary of Education. The federal government assists
students with higher education loans in various ways.
Congress has allowed for the cancellation of federal student
loans in certain cases of school misconduct. 20 U.S.C.
§ 1087e(h). This loan cancellation process is called
borrower defense. In 2015, the number of borrower defense
8 IN RE U.S. DEPARTMENT OF EDUCATION
applications dramatically increased when Corinthian
Colleges, Inc., a large for-profit institution, shut down after
incurring a $30 million fine from the Department for
misleading students concerning job placement success.
By the end of President Barack Obama’s administration
in January 2017, the Department had granted 99.2% of the
borrower defense applications it had evaluated, many of
which were from Corinthian College students. When
President Donald Trump took office, he appointed DeVos to
head the Department. Starting in December 2017, the
Department began using a new methodology to decide
borrower defense claims. In May 2018, the Department was
preliminarily enjoined from using this methodology because
a federal district court concluded that it resulted in likely
violations of the Privacy Act, 5 U.S.C. § 552a. See Calvillo
Manriquez v. DeVos, 345 F. Supp. 3d 1077, 1109 (N.D. Cal.
2018). From June 2018 through December 2019, the
Department issued no borrower defense decisions.
In June 2019, several persons with pending borrower
defense applications brought suit against the Department and
then-Secretary DeVos in the district court pursuant to
Section 706 of the Administrative Procedure Act. They
alleged unlawful withholding, or unreasonably delayed
action, on their borrower defense applications. At the time
the suit was filed, over 210,000 such applications were
pending. Plaintiffs asked the district court to compel
defendants to restart the process of adjudicating their
applications. The district court certified a class of 160,000
borrower defense applicants, and the Department compiled
an administrative record of documents that supported its
decision making. The parties filed cross motions for
summary judgment. Defendants claimed that the agency
inaction was not a “policy” but rather a lawful result of
IN RE U.S. DEPARTMENT OF EDUCATION 9
staffing shortages, competing priorities, and that the delays
were unavoidable because “[i]ssuing final decisions on such
claims is time-consuming and complex, with many steps in
the adjudicatory process, and agencies must be given, within
reason, the time necessary to analyze the issues presented so
that they can reach considered results.”
Before the district court ruled on the summary judgment
motions, the parties negotiated a proposed settlement that
included an eighteen-month deadline to resolve all
outstanding claims. The district court preliminarily
approved the settlement, but before the class fairness hearing
was held, the Department sent out form letters denying
118,000 borrower defense applications at a denial rate of
89.8%. The letters were brief and offered no reasoning for
the Department’s decisions.
The district court denied final approval of the settlement
after finding no “meeting of the minds.” The district court
ordered updated written discovery and depositions of up to
five Department officials to inquire into topics including
“[t]he development and use of the form denial letters” and
“[t]he extent to which the difficulty of reviewing borrower-
defense applications actually caused or justified the
Secretary’s eighteen-month delay.” The district court did
not authorize the deposition of then-secretary DeVos, stating
“class counsel may not yet depose the Secretary. . .
Extraordinary circumstances, however—for example, if the
Secretary has unique first-hand knowledge or necessary
information [that] cannot be obtained through other, less
intrusive means—may justify such a deposition at a later
date.”
Plaintiffs took four depositions of current and former
high-ranking Department officials involved in borrower
defense policy and received about 2,500 documents from
10 IN RE U.S. DEPARTMENT OF EDUCATION
defendants. On January 6, 2021, plaintiffs informed
defendants that they would be asking the district court for
leave to depose DeVos. DeVos resigned as secretary on
January 7, for unrelated reasons, and on January 12, the
district court authorized class counsel to take her deposition.
The court reasoned that its “prior order restricted deposition
of ‘the Secretary’ . . . [but] imposed no such restriction
regarding Citizen DeVos.” The court instructed counsel to
“subpoena Ms. DeVos” for any such deposition. Plaintiffs
then served a subpoena for a nonparty deposition on DeVos
pursuant to Federal Rule of Civil Procedure 45.
DeVos and the Department moved to quash the subpoena
in the Southern District of Florida. That court referred the
matter to a magistrate judge, and no party objected.
Plaintiffs moved to transfer the motion to quash to the
Northern District of California, where the parties are
litigating the underlying class action. DeVos and the
Department opposed the motion, but the magistrate judge in
Florida granted the transfer. Before the Department or
DeVos sought review of the transfer order by the Florida
district court judge, the case was electronically transferred to
California. DeVos and the Department asked the Florida
district court to stay the transfer pending an opportunity to
object to the magistrate judge’s order pursuant to Federal
Rule of Civil Procedure 72. The Florida district court denied
the motion because the case had already been transferred.
The Florida district court noted, however, that “applying the
review standards of Rule 72(a), the Court agrees that
‘exceptional circumstances’ exist here and warrant a transfer
to the Northern District of California . . . Put differently,
although the transfer was effectuated prior to the objections
period, the same result would follow—rendering [DeVos’s]
procedural concern harmless.”
IN RE U.S. DEPARTMENT OF EDUCATION 11
DeVos petitioned the Eleventh Circuit for a writ of
mandamus, arguing that the magistrate judge exceeded his
authority in transferring the case before the district judge
considered her Rule 72(a) objections and that the Florida
district judge erred in failing to stay the transfer. The
Eleventh Circuit denied her petition because she had not
established that her right to relief was clear and indisputable.
The Department and DeVos filed motions to quash the
subpoena in the Northern District of California. The district
court denied the motions, finding that “exceptional
circumstances” warranted the taking of DeVos’s deposition.
Drafting what it believed to be the appropriate test that must
be met before a cabinet secretary’s deposition may be taken,
the district court concluded that cabinet secretaries can be
deposed when: (1) there is “[a] strong showing of bad faith
or improper behavior”; (2) “[t]he official has unique and
relevant first-hand knowledge”; and (3) “[t]he necessary
information cannot be obtained through other less
burdensome or intrusive means.” The district court
concluded that deposing DeVos was justified because the
agency showed bad faith and DeVos had “unique and
relevant first-hand knowledge” which could not be obtained
in a less burdensome way. The district court authorized a
three-hour deposition of DeVos to “probe matters broadly
related to the actual cause for the challenged eighteen-month
delay, the development, approval, and use of the form-denial
letters, and the Secretary’s involvement in clearing the
backlog of our [class members’] borrower-defense claims.”
The district court noted that the order does not “malign[] the
Secretary’s deliberative-process privilege” or her ability to
assert it.
The Department and DeVos now petition our court for a
writ of mandamus ordering the district court to reverse its
12 IN RE U.S. DEPARTMENT OF EDUCATION
order denying the motion to quash the subpoena of the
former secretary. DeVos also seeks a writ of mandamus
directing the district court to transfer the subpoena motion
back to the Southern District of Florida.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction to issue a writ of mandamus
pursuant to the All Writs Act, 28 U.S.C. § 1651, and Federal
Rule of Appellate Procedure 21.
A writ of mandamus is an extraordinary remedy. Cheney
v. U.S. Dist. Ct., 542 U.S. 367, 380 (2004). We consider five
factors (herein referred to as the Bauman factors) before
granting the writ: (1) the petitioner has no other adequate
way to obtain the relief sought; (2) the petitioner will suffer
damage or prejudice that cannot be corrected on appeal;
(3) the district court clearly erred as a matter of law; (4) the
error is often repeated or shows the district court’s persistent
disregard for the federal rules; and (5) there are new and
important issues at stake. In re Mersho, 6 F.4th 891, 897–
98 (9th Cir. 2021) (citing Bauman v. U.S. Dist. Ct., 557 F.2d
650, 654–55 (9th Cir. 1977)). These factors “are not
exhaustive.” Barnes v. Sea Haw. Rafting, LLC, 889 F.3d
517, 535 (9th Cir. 2018) (quoting In re Bundy, 840 F.3d
1034, 1041 (9th Cir. 2016)).
We have determined that satisfaction of the third factor,
that the district court made a clear error of law, is almost
always a necessary predicate for the granting of the writ. In
re Walsh, 15 F.4th 1005, 1008 (9th Cir. 2021). Clear error
is a deferential standard, and we find clear error only when
we have a “firm conviction” that the district court has made
a mistake in interpreting the law, or there has been a “clear
abuse of discretion.” Id. (internal quotation marks and
citation omitted). We can develop a firm conviction that the
IN RE U.S. DEPARTMENT OF EDUCATION 13
district court has erred when our court has already directly
addressed the question at issue or when similar cases from
our court, cases from the Supreme Court, cases from other
circuits, the Constitution, or statutory language definitively
show us “that a mistake has been committed.” In re Mersho,
6 F.4th at 898 (quoting Cohen v. U.S. Dist. Ct. for N. Dist.
of Cal., 586 F.3d 703, 708 (9th Cir. 2009)); see also In re
Williams-Sonoma, Inc., 947 F.3d at 540 n.8.
ANALYSIS
I.
Before reaching the gravamen of this appeal, we first
consider DeVos’s petition for a writ of mandamus ordering
the district court to transfer the motion to quash back to the
Southern District of Florida. The crux of DeVos’s argument
is that the California district court does not have subject
matter jurisdiction because a magistrate judge, not a district
judge, ordered the transfer to California and the matter
transferred before the Florida district court could review that
order. Because DeVos’s petition does not satisfy the
Bauman factors, we deny the request for a writ of mandamus
ordering the district court to transfer the motion to the
Southern District of Florida.
Our case law is clear that we do not have jurisdiction to
review the procedural or substantive propriety of the Florida
court’s transfer order. See Posnanski v. Gibney, 421 F.3d
977, 980 (9th Cir. 2005) (“[N]o principle in American law
. . . permits a circuit court of appeals to review, as such, a
transfer order issued by a district court in another circuit.”).
Here, however, we are not asked to review the propriety of
the Florida court’s transfer order, but rather its jurisdiction
to enter such an order. We do have jurisdiction to review the
Florida court’s jurisdiction to enter the order because if the
14 IN RE U.S. DEPARTMENT OF EDUCATION
Florida court did not have jurisdiction, its order would have
no effect. See Herklotz v. Parkinson, 848 F.3d 894, 898 (9th
Cir. 2017) (reviewing a Pennsylvania district court’s
jurisdiction to enter a transfer order).
The magistrate judge had jurisdiction to issue the transfer
order. The limits of a magistrate judge’s jurisdiction are
established in 28 U.S.C. § 636. According to that statute, a
district “judge may designate a magistrate judge to hear and
determine any pretrial matter,” with some enumerated
exceptions. 28 U.S.C. § 636(b)(1)(A). These exceptions “as
well as ‘analogous’ matters” are “dispositive matters” and
should not be heard by a magistrate judge. Mitchell v.
Valenzuela, 791 F.3d 1166, 1168 (9th Cir. 2015). To
determine whether a motion is dispositive, we look to
whether the effect of the motion is to deny the ultimate relief
sought or foreclose a defense of a party. Flam v. Flam,
788 F.3d 1043, 1046 (9th Cir. 2015). The order here merely
transferred the action to another federal court and did not
affect the viability of a claim or defense or the federal
appellate courts’ ability to correct errors. Thus, the transfer
order was nondispositive, and the magistrate judge had
jurisdiction to enter it.
Jurisdiction remains even though the Florida district
court did not review the objections to the magistrate judge’s
transfer order. In arguing that the magistrate judge lacked
the authority to issue the transfer order, DeVos relies on
Federal Rule of Civil Procedure 72. That rule allows parties
to object to a magistrate judge’s order within fourteen days
and requires the district judge to consider those objections.
Fed. R. Civ. P. 72(a). Here, the matter transferred to
California before the Florida district court could review the
objections to the transfer order. Whether or not DeVos had
an opportunity to file objections does not affect the
IN RE U.S. DEPARTMENT OF EDUCATION 15
magistrate judge’s jurisdiction to enter the transfer order,
because “it is axiomatic that the Federal Rules of Civil
Procedure do not create or withdraw federal jurisdiction.”
Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13,
17 (2017) (cleaned up) (quoting Owen Equip. & Erection
Co. v. Kroger, 437 U.S. 365, 370 (1978)).
We decline to issue a writ of mandamus on this
jurisdictional issue because there was no error, any alleged
error is unlikely to often be repeated, there is no prejudice,
and there are no new or important issues at stake. See
Bauman, 557 F.2d at 654–55. We turn now to the petition
for a writ of mandamus directing the district court to quash
the subpoena for DeVos’s deposition.
II.
On this issue, we are tasked with determining whether
the district court, by denying the motion to quash the
subpoena to depose the former secretary, inappropriately
breached the barrier separating one co-equal branch of the
federal government from another. The executive branch is
required by the Constitution to execute the laws passed by
Congress and the courts are to decide, among other duties,
cases or controversies related to the executive’s
implementation of those laws. See U.S. Const. art. II, § 3;
U.S. Const. art. III, §§ 1–2. Courts are not, however, to
second-guess policy decisions properly delegated to the
executive branch by the legislative branch. See, e.g., ABF
Freight Sys., Inc. v. NLRB, 510 U.S. 317, 324 (1994). This
balance is essential to the constitutional design. As
Alexander Hamilton wrote, “[T]he great security against a
gradual concentration of the several powers in the same
department, consists in giving to those who administer each
department, the necessary constitutional means, and
personal motives, to resist encroachments of the others.”
16 IN RE U.S. DEPARTMENT OF EDUCATION
The Federalist No. 51, at 286 (Alexander Hamilton) (E.H.
Scott ed., 1898).
Congress gave courts some power to review agency
action in the Administrative Procedure Act. “The
Administrative Procedure Act embodies a ‘basic
presumption of judicial review [of administrative actions],’”
Dep’t of Com. v. New York, 139 S. Ct. 2551, 2568 (2019)
(quoting Abbott Lab’ys v. Gardner, 387 U.S. 136, 140
(1967)), but ordinarily that review should not involve
probing the “mental processes” of administrative
decisionmakers, Citizens to Pres. Overton Park, Inc. v.
Volpe, 401 U.S. 402, 420 (1971). To that end, judicial
review is generally limited to the administrative record,
which is the agency’s compilation of all the materials before
it when it made the decision. See Dep’t of Com., 139 S. Ct.
at 2573. When courts find a “strong showing of bad faith or
improper behavior [by the agency],” however, a court may
look beyond the administrative record. Citizens to Pres.
Overton Park, Inc., 401 U.S. at 420. Discovery beyond the
administrative record does not necessarily include the
deposition of a cabinet secretary. The rules for when a court
may allow the questioning of a cabinet secretary are more
restrictive than those for extra-record discovery. 1 See Kyle
Eng’g Co. v. Kleppe, 600 F.2d 226, 231 (9th Cir. 1979).
In 1941, before the Administrative Procedure Act
became law, the Supreme Court explored the questioning of
a cabinet secretary in United States v. Morgan, 313 U.S. 409(1941). In the course of litigation about an agency action,
the district court allowed the deposition of the Secretary of
Agriculture. Id. at 421–22. The Secretary also testified at
1
These rules rest on a constitutional foundation, and we see our
analysis in this opinion as distinct from the “apex doctrine.”
IN RE U.S. DEPARTMENT OF EDUCATION 17
trial on “the process by which he reached the conclusions of
his order, including the manner and extent of his study of the
record and his consultation with subordinates.” Id. at 422.
Criticizing the district court’s decision to allow such
questioning, Justice Frankfurter wrote for the Court:
[T]he short of the business is that the
Secretary should never have been subjected
to this examination. The proceeding before
the Secretary has a quality resembling that of
a judicial proceeding. Such an examination
of a judge would be destructive of judicial
responsibility. We have explicitly held in
this very litigation that it was not the function
of the court to probe the mental processes of
the Secretary. Just as a judge cannot be
subjected to such a scrutiny, so the integrity
of the administrative process must be equally
respected. It will bear repeating that although
the administrative process has had a different
development and pursues somewhat different
ways from those of courts, they are to be
deemed collaborative instrumentalities of
justice and the appropriate independence of
each should be respected by the other.
Id. (internal quotation marks and citations omitted). Morgan
is the seminal authority on the deposition of cabinet
secretaries and other high-ranking government officials, but
some courts have, nevertheless, allowed for the taking of
such depositions in extraordinary circumstances.
In addition to concerns about the maintenance of a
proper separation of powers, courts are reluctant to distract
cabinet secretaries from their executive duties. “High
18 IN RE U.S. DEPARTMENT OF EDUCATION
ranking government officials have greater duties and time
constraints than other witnesses. . . . [Their] time is very
valuable.” In re United States, 985 F.2d 510, 512 (11th Cir.
1993) (per curiam). The “duties of high-ranking executive
officers should not be interrupted by judicial demands for
information that could be obtained elsewhere.” In re
Cheney, 544 F.3d 311, 314 (D.C. Cir. 2008) (per curiam)
(citing Simplex Time Recorder Co. v. Sec’y of Lab., 766 F.2d
575, 586 (D.C. Cir. 1985)). Cabinet secretaries face a
potentially greater amount of litigation than most other
witnesses. “If the Commissioner [of an agency] was asked
to testify in every case which the [agency] prosecuted, his
time would be monopolized by preparing and testifying in
such cases. In order to protect officials from the constant
distraction of testifying in lawsuits, courts have required that
defendants show a special need or situation compelling such
testimony.” In re United States, 985 F.2d 510, 512 (11th Cir.
1993) (footnote omitted). In short, the executive branch’s
execution of the laws can be crippled if courts can
unnecessarily burden secretaries with compelled
depositions.
The significant protection from depositions that cabinet
secretaries enjoy does not mean that they are above the law.
Illustrative of that fact is what happened in the case of Aaron
Burr. John Marshall in deciding, as a trial judge, that it was
appropriate to call the president to testify at Aaron Burr’s
trial for treason, wrote about what separates our president
from the British king:
[T]he crown is hereditary, and the monarch
can never be a subject. . . [T]he president is
elected from the mass of the people, and, on
the expiration of the time for which he is
IN RE U.S. DEPARTMENT OF EDUCATION 19
elected, returns to the mass of the people
again. . . .
If, upon any principle, the president could
be construed to stand exempt from the
general provisions of the constitution, it
would be, because his duties as chief
magistrate demand his whole time for
national objects. But it is apparent that this
demand is not unremitting . . . .
United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807)
(No. 14,692d). More recently, as the dissent emphasizes, the
Supreme Court wrote, quoting James Madison, that the
separation between the powers does not mean that the courts
can never burden the executive. See Clinton v. Jones,
520 U.S. 681, 703 (1997).
The issue of cabinet secretary depositions has not often
come before circuit courts, but when it has, they have
recognized that Morgan is not an absolute bar against the
taking of such depositions, and that cabinet secretaries may
be deposed under extraordinary circumstances. The D.C.
Circuit, for example, suggested that in “extraordinary
circumstances, [top executive department officials can] be
called to testify regarding their reasons for taking official
actions.” Simplex Time Recorder Co., 766 F.2d at 586. Our
court has only once before addressed a similar question. In
that case, the district court compelled the Administrator of
the Small Business Administration to participate in
discovery but allowed him to answer “interrogations” on a
contract dispute in lieu of a deposition. We concluded that
the district court had not abused its discretion and
commented that “[h]eads of government agencies are not
20 IN RE U.S. DEPARTMENT OF EDUCATION
normally subject to deposition.” Kyle Eng’g Co., 600 F.2d
at 231.
Although district courts have occasionally ordered such
depositions, circuit courts have issued writs of mandamus to
stop them when asked to, generally finding that the
circumstances before them were not extraordinary. See, e.g.,
In re Clinton, 973 F.3d 106, 109 (D.C. Cir. 2020), cert.
denied sub nom. Jud. Watch, Inc. v. Clinton, 141 S. Ct. 1740(2021); In re United States, 624 F.3d 1368, 1377 (11th Cir.
2010); In re United States, 197 F.3d 310, 316 (8th Cir.
1999); In re F.D.I.C., 58 F.3d 1055, 1060 (5th Cir. 1995); In
re United States, 985 F.2d 510, 512–13 (11th Cir. 1993); see
also In re McCarthy, 636 F. App’x 142, 142 (4th Cir. 2015);
In re United States, 542 F. App’x 944, 947 (Fed. Cir. 2013).
The Supreme Court was confronted with a request to
take the deposition of a cabinet secretary in 2018. See In re
Dep’t of Com., 139 S. Ct. 16 (2018) (mem.). There, a district
court in the Southern District of New York had allowed a
subpoena for the deposition of Secretary of Commerce
Wilber Ross and other high-ranking officials, including an
Assistant Attorney General at the Department of Justice. In
a brief order, Justice Ginsburg stayed the deposition of the
secretary and allowed the other depositions to proceed. Id.The parties in our case each contends that the Supreme
Court’s stay of Secretary Ross’s deposition supports its
arguments here. In its unreasoned order, however, the Court
did not address the propriety of deposing a cabinet secretary
on the merits. Without any understanding of how the Court
decided the issue, we have no guidance on how to apply its
decision to the deposition sought here. See Ind. State Police
Pension Tr. v. Chrysler LLC, 556 U.S. 960, 960 (2009) (per
curiam) (“A denial of a stay is not a decision on the merits
of the underlying legal issues.”).
IN RE U.S. DEPARTMENT OF EDUCATION 21
III.
Here, the district court denied the Department’s and
DeVos’s motion to quash the subpoena because it concluded
that exceptional circumstances warranted the taking of
DeVos’s deposition. The district court cobbled together
three categories of exceptional circumstances it claimed can
justify the deposition of a cabinet secretary. The district
court described the three categories as: (1) “[a] strong
showing of [agency] bad faith or improper behavior”; (2) the
secretary “has unique and relevant first-hand knowledge”;
and (3) “[t]he necessary information cannot be obtained
through other less burdensome or intrusive means.” Having
reviewed the record, and pertinent law, we are left with a
firm conviction that the district court clearly erred in
describing the requirements of the second two categories,
and how, properly described, they apply in this case. 2
Looking to the separation of powers principles discussed
above and further case law discussed below, we hold that
extraordinary circumstances sufficient to justify the taking
of a cabinet secretary’s deposition exist when the party
seeking the deposition can demonstrate: (1) a showing of
agency bad faith; (2) the information sought from the
secretary is essential to the case; and (3) the information
sought from the secretary cannot be obtained in any other
way. All three factors must be satisfied in order to take a
2
As discussed at length in this opinion, our determination that the
district court clearly erred is based on constitutional principles, guidance
from the Supreme Court in in United States v. Morgan, 313 U.S. 409(1941), our court in Kyle Eng’g Co. v. Kleppe, 600 F.2d 226 (9th Cir.
1979), and other circuit court decisions. Respectfully, the dissent is
incorrect that we “exclusively rel[y] on out-of-circuit opinions and
unpublished decisions to support [our] decision to grant the petition.”
22 IN RE U.S. DEPARTMENT OF EDUCATION
secretary’s deposition. We discuss each of the three factors
below.
A.
A showing of bad faith is a threshold issue to justifying
taking a cabinet secretary’s deposition. This factor comes to
us from the Supreme Court’s guidance and long-standing
administrative law. The Supreme Court has noted:
[C]ourt[s] may require . . . administrative
officials . . . to give testimony explaining
their action. Of course, such inquiry into the
mental processes of administrative
decisionmakers is usually to be avoided. And
where there are administrative findings that
were made at the same time as the decision
. . . , there must be a strong showing of bad
faith or improper behavior before such
inquiry may be made. But . . . it may be that
the only way there can be effective judicial
review is by examining the decisionmakers
themselves.
Citizens to Pres. Overton Park, Inc., 401 U.S. at 420(citation omitted) (citing Morgan, 313 U.S. at 422). Bad
faith is a requirement because when the agency has been
dishonest, further judicial scrutiny is justified and, in fact,
necessary to effectuate judicial review.
Here, the Department’s bad faith was apparent to the
district court. The district court found that the agency acted
in bad faith when the Department, during the process of
negotiating a settlement, sent out many application denials
in unreasoned form letters despite having previously claimed
that the eighteen-month delay in deciding these applications
IN RE U.S. DEPARTMENT OF EDUCATION 23
was due, in part, to the time-intensive process of considered
decision making. We see no reason to question this finding
of bad faith.
B.
To take a secretary’s deposition, the information sought
in the deposition must be essential to the case. If the
information is not absolutely needed for a case, we cannot
allow a deposition to disrupt the normal governmental
balance of powers. Some of our sister circuits have
previously granted writs of mandamus to prevent cabinet-
level depositions when the information sought was not
essential to the case, and we are persuaded by the reasoning
of those cases. For example, when a man on death row
sought to take the depositions of Attorney General Janet
Reno and Deputy Attorney General Eric Holder, the Eighth
Circuit held that he “must . . . establish at a minimum that
the [deponents] possess information essential to his case
. . . . This means . . . that the discovery sought is relevant and
necessary. . . . Without establishing this foundation,
‘exceptional circumstances’ cannot be shown sufficient to
justify a subpoena.” In re United States, 197 F.3d 310, 312–
13 (8th Cir. 1999) (citations omitted) (first citing In re
United States, 985 F.2d 510, 512–13 (11th Cir. 1993); and
then citing In re F.D.I.C., 58 F.3d 1055, 1062 (5th Cir.
1995)). The record in that case contained “sufficient
evidence to establish” all of the facts essential to the claim
and so the depositions of the officials were not necessary.
Id. Were we to allow the taking of depositions of cabinet-
level officials in which relevant, but unnecessary
information, was sought, we would risk distracting cabinet
secretaries from their essential duties with an inundation of
compulsory, unnecessary depositions and upsetting the
proper balance of powers. The potentially disruptive nature
24 IN RE U.S. DEPARTMENT OF EDUCATION
of such a possibility can be seen when one considers the
sheer number of lawsuits filed against, for example, the
Attorney General or the Secretary of Health and Human
Services. 3
The district court clearly erred in allowing DeVos’s
deposition because the information sought from DeVos,
while perhaps relevant, is not essential to the claims alleged
by plaintiffs. The district court looked only for “relevant”
information in the second prong of its test, and although it
mentioned “necessary information” in describing the third
prong, the focus of that inquiry was on whether the
information can be obtained through a less burdensome
means. In fact, plaintiffs do not allege that DeVos has
information that is essential to their case. Instead, plaintiffs
claim that they are entitled to relief in the underlying case if
the Department does not have a lawful reason for its actions.
At oral argument, plaintiffs’ counsel admitted to the court
that they have already established that the Department’s
reasons do not withstand scrutiny, saying “if there were a
lawful reason for the delay in processing borrower defense
claims, I think the Department of Education would have
given it to us already. But right now what we have is a lot
of smoke and fog.” Counsel even acknowledged that
3
Every year, the Attorney General, in his official capacity, is named
in thousands of civil suits across the country. Brief searches of the
electronic dockets in the District Court for the District of Columbia, for
instance, show that there are currently about 148 open cases against the
Attorney General and about 133 against the Secretary of Health and
Human Services just in that district alone. The preparation for, and
participation in, even two depositions each month would leave a cabinet
secretary with little time to attend to the actual business of executing the
country’s laws. This demand on secretaries’ time is a key reason why
depositions must be limited to those instances where the deposition is
absolutely essential to the case.
IN RE U.S. DEPARTMENT OF EDUCATION 25
plaintiffs likely could win relief on the existing record, and
that they already know that DeVos opposed granting
borrower defense applications. Plaintiffs have not
demonstrated that the taking of DeVos’s deposition is
essential to their case. Thus, they have failed to satisfy the
second prong of the required three-prong showing necessary
to establish “extraordinary circumstances.”
C.
Finally, to take the deposition of a cabinet secretary, the
information sought cannot be obtainable in any other way.
We cannot intrude into the workings of the executive branch
and the time of that branch’s leaders if there is another way
to obtain the necessary information. We endorse the
reasoning of our sister circuits to the effect that those seeking
the deposition must establish “that the [deponents] possess
information . . . which is not obtainable from another
source.” In re United States, 197 F.3d 310, 312–14 (8th Cir.
1999). “If other persons can provide the information sought,
discovery will not be permitted against [a high-ranking]
official.” Id. In disallowing the deposition of the
Administrator of the Environmental Protection Agency, the
Fourth Circuit noted that “Plaintiffs have not demonstrated
a need for [the Administrator’s] testimony beyond what is
already in the public record.” In re McCarthy, 636 F. App’x
142, 144 (4th Cir. 2015); see also In re United States,
985 F.2d 510, 512–13 (11th Cir. 1993)) (“This case does not
present extraordinary circumstances or a special need for the
Commissioner [of the Food and Drug Administration’s]
testimony; on the contrary, the facts weigh against allowing
the subpoena. The record discloses that testimony was
available from alternate witnesses . . . .”).
Plaintiffs have not established that the information they
seek from DeVos is unobtainable in any other way.
26 IN RE U.S. DEPARTMENT OF EDUCATION
Plaintiffs’ counsel admitted at oral argument that the district
court had not considered less intrusive means of discovery,
and in their briefing, plaintiffs argue that they are not
required to exhaust all other means of discovery before
taking DeVos’s deposition. Plaintiffs did not exhaust their
alternatives here. For example, they did not use all of their
interrogatories and never took a Rule 30(b)(6) deposition.
Indeed, the district court held that “literal exhaustion of
alternatives” was not required. This was error. Exhaustion
of all reasonable alternative sources is required, and that
requirement was not met here.
Further, plaintiffs contend that the information they seek
cannot be obtained through other means because they have
not obtained it through discovery thus far. They point to
comments in four prior depositions to infer that DeVos has
unique knowledge. For instance, then-Under Secretary
Diane Auer Jones testified that she was not “a senior enough
official to have” the “decision-making authority” on
borrower defense policies. Another undersecretary, James
Manning, similarly said he was not responsible for the
decision to stop processing borrower defense applications.
Plaintiffs claim that only the Secretary herself has more
authority than an undersecretary and, therefore, must have
made the relevant decisions. Although that may be true, the
deponents’ vague references to their own scope of authority
are not sufficient to show that DeVos herself has information
that cannot be obtained elsewhere, especially when plaintiffs
allege that they already know that DeVos opposed granting
borrower defense applications.
The district court clearly erred in denying the motion to
quash the subpoena to take the deposition of DeVos. There
is no indication that DeVos holds information that is
essential to plaintiffs’ case or that is otherwise unobtainable.
IN RE U.S. DEPARTMENT OF EDUCATION 27
D.
Our reasoning applies even though DeVos is no longer
serving as secretary. The requested deposition concerns her
actions taken during her tenure as secretary and “[w]e note
that the process-inquiry rationale of Morgan and its
successors hardly becomes inapplicable upon an official’s
departure from [her] office.” In re United States, 542 F.
App’x 944, 949 (Fed. Cir. 2013). The time constraint
concerns discussed above similarly continue to apply. The
threat of having to spend their personal time and resources
preparing for and sitting for depositions could hamper and
distract officials from their duties while in office. If allowed
the minute cabinet secretaries leave office, overwhelming
and unnecessary discovery could also discourage them from
taking that office in the first place or leaving office when
there is controversy.
E.
We further note that the other Bauman factors, besides
clear error, support the issuance of a writ of mandamus. On
the adequacy of other relief, courts have routinely found that,
in cases involving high-level government officials, there are
no other means of relief beyond mandamus because to
disobey the subpoena, face contempt charges, and then
appeal would not be appropriate for a high-ranking
government official. In re United States, 542 F. App’x 944,
947 (Fed. Cir. 2013) (“[S]erious repercussions for the
relationship between different branches of government
could result if an official was required to place him or herself
in contempt to seek immediate review. The right to not
appear during deposition would be lost if review was denied
28 IN RE U.S. DEPARTMENT OF EDUCATION
until final judgment.” (citation omitted)). 4 These serious
repercussions for the relationship between two coequal
branches of government can remain even if the official is no
longer in office when the official faces the subpoena because
of their role in the executive branch. On the second Bauman
factor, the harm to DeVos is the intrusion of the deposition
itself, and so the harm is not correctable on appeal, even if
her testimony is excluded at trial. For the fourth and fifth
factors, although the district court’s error is not new or often
repeated, it is an important issue implicating constitutional
concerns.
CONCLUSION
The petitions for a writ of mandamus directing the
district court to quash the subpoena for DeVos’s deposition
are GRANTED. The district court is ordered to quash the
subpoena for the deposition of former Secretary of
Education, Elisabeth DeVos. The petition for a writ of
mandamus directing the district court to transfer the motion
to Florida is DENIED.
PETITIONS FOR WRITS OF MANDAMUS ARE
GRANTED IN PART AND DENIED IN PART.
4
The dissent mistakenly understands this point to be part of our
analysis as to whether there are extraordinary circumstances warranting
the taking of DeVos’s deposition. We mention the threat of contempt
charges only in evaluating the first Bauman factor and concluding that
DeVos has no other adequate way besides the writ of mandamus to
obtain the relief she seeks.
IN RE U.S. DEPARTMENT OF EDUCATION 29
PAEZ, Circuit Judge, dissenting:
My decision to dissent from the majority’s holding is
guided by the principle that “[m]andamus is a ‘drastic and
extraordinary remedy,’” reserved for “exceptional
circumstances amounting to a judicial usurpation of power
or a clear abuse of discretion.” Cheney v. U.S. Dist. Ct. for
D.C., 542 U.S. 367, 380, 390 (2004) (internal citations and
quotations omitted). A necessary condition to granting a
writ of mandamus—which I believe is lacking here—is that
the district court “clear[ly] err[ed] as a matter of law.” In re
Van Dusen, 654 F.3d 838, 841 (9th Cir. 2011). I do not agree
with the majority for two principal reasons. First, the district
court did not clearly err because neither we nor any other
court of appeals has addressed the “extraordinary
circumstances” requirement in the context of a former
cabinet secretary who no longer has “greater duties and time
constraints,” In re United States (Kessler), 985 F.2d 510, 512
(11th Cir. 1993) (per curiam), and is otherwise protected by
the deliberative process privilege. Second, the district court
did not err at all because the majority’s new standard
amounts to mere distinctions without any meaningful
difference and the majority provides no support for rejecting
the district court’s holistic assessment of the record.
I.
When there is “no prior Ninth Circuit authority
prohibit[ing] the course taken by the district court,” or the
court is addressing a “question of first impression not yet
addressed by any circuit court in a published opinion,” the
district court’s ruling cannot be clearly erroneous. In re
Morgan, 506 F.3d 705, 713 (9th Cir. 2007); see also
Medhekar v. U.S. Dist. Ct. for the N. Dist. of California,
99 F.3d 325, 327 (9th Cir. 1996); In re Mersho, 6 F.4th 891,
898 (9th Cir. 2021) (“A ruling usually cannot be clearly
30 IN RE U.S. DEPARTMENT OF EDUCATION
erroneous if there is no Ninth Circuit authority on point, or
the question has not been addressed by any circuit court.”)
(citations omitted)).
The majority elides our precedent by suggesting it can
find clear error because the Supreme Court, other circuits,
and the Constitution has “show[n] us” a mistake has been
committed. Maj. Op. 12–13, 21 n.2. Not so. No party
asserts that the Supreme Court has clearly spoken on this
issue. See In re Williams-Sonoma, Inc., 947 F.3d 535, 540
n.8 (9th Cir. 2020) (concluding that the Supreme Court had
“clearly spoken” on the relevant issue). 1 The majority cites
no case where mandamus was granted by relying on the
Constitution without also relying on binding authority. But
even assuming a writ of mandamus could be granted by
simply pointing to the Constitution, nothing in the majority’s
opinion or authority supports the notion that the Constitution
“definitively” prohibits the deposition of a former cabinet
secretary under the present circumstances. Rather, even in
circumstances where we have addressed an issue but not
prohibited the district court’s action, we have declined to
find clear error.
In Morgan, for example, we considered whether the
district court’s categorical rejection of certain plea bargain
agreements was proper. 506 F.3d at 710. We recognized
that although the “precise issue” had not previously been
considered by our court, “our cases provide[d] the necessary
guidance to resolve [the disputed] question.” Id. We held
that, under our existing caselaw, the district court erred—but
it did not clearly err—because “no prior Ninth Circuit
1
The majority also relies on Mersho, but we found clear error there
because the district court took an action that “the plain text of the statute
prohibit[ed].” 6 F.4th at 902.
IN RE U.S. DEPARTMENT OF EDUCATION 31
authority prohibited the course taken by the district court.”
Id. at 713. In the absence of clear error, we denied the
mandamus petition. Id. The present case is even further
removed from the circumstances in Morgan.
The issue presented by the government’s petition is
whether the district court clearly erred in denying the motion
to quash the deposition subpoena served on former Secretary
DeVos. The majority’s opinion exclusively relies on out-of-
circuit opinions and unpublished decisions to support its
decision to grant the petition. Maj. Op. 21–28. The majority
has no choice but to look to out-of-circuit caselaw because
our court has yet to provide guidance on the “extraordinary
circumstances” that may warrant the testimony of a cabinet
secretary (whether in or out of office) on matters related to
their official duties. That dearth of caselaw is sufficient to
conclude that the district court did not clearly err. Although
other courts of appeals have addressed the issue, they have
done so in situations where the high-ranking official is in
office. No court of appeals, however, has considered
whether the “extraordinary circumstances” doctrine ought to
apply to a former secretary or to what extent. 2 In my view,
2
While the Second Circuit applied the doctrine to both a current and
former deputy mayor, the standard it set out discussed only “high-
ranking government officials” without giving a reasoned explanation for
applying it to a former official. See Lederman v. New York City Dep’t
Parks & Rec., 731 F.3d 199, 203 (2d Cir. 2013). The court also noted
that the plaintiffs did not preserve that issue for appeal because they had
failed to brief the issue. Id. at n.1. In my view, there is no persuasive
value to the court’s conclusory reference to the former deputy mayor.
District courts are also divided on this question. Compare, e.g.,
Consumer Fin. Prot. Bureau v. Weltman, Weinberg & Reis Co., L.P.A.,
No. 1:17CV817, 2017 WL 6042221, at *1 (N.D. Ohio Dec. 6, 2017)
(allowing deposition of former director of Consumer Financial
Protection Bureau because he “is no longer a ‘high-level government
official’ that warrants protection from being deposed”), Toussie v. Cty.
32 IN RE U.S. DEPARTMENT OF EDUCATION
the majority’s attempt to extend the rationales underlying
that doctrine to a former official is not persuasive.
The majority dismisses the distinction between a current
and former secretary in four brief sentences when, in fact,
the rationales behind the “extraordinary circumstances”
doctrine do not have the same force in the context of a former
official. First, the majority’s lone citation is to dictum in
In re United States (Bernanke), 542 F. App’x 944, 949 (Fed.
Cir. 2013), Maj. Op. 27–28, an unpublished order that, on
closer inspection, supports the plaintiffs’ position. In
quoting from the unpublished Bernanke order, the majority
omits the part of the sentence where the Federal Circuit
expressly declined to decide how the rationales “would play
out if” the plaintiffs sought to depose Chairman Bernanke
after he left office. Id. The court left open the possibility
of Suffolk, No. CV 05-1814(JS)(ARL), 2006 WL 1982687, at *2
(E.D.N.Y. July 13, 2006) (ordering deposition of former County
Executive because “[t]he specific rules governing depositions of high
level government officials d[id] not apply to” him after he left office but
requiring that former official be “personally involved in the events at
issue”), Sanstrom v. Rosa, No. 93 CIV. 7146 (RLC), 1996 WL 469589,
at *5 (S.D.N.Y. Aug. 16, 1996) (allowing deposition of former Governor
M. Cuomo on the same basis), with Sec. & Exch. Comm’n v. Comm. on
Ways & Means of the U.S. House of Representatives, 161 F. Supp. 3d
199, 252 (S.D.N.Y. 2015) (applying “exceptional circumstances”
doctrine to former official but allowing deposition because rationales of
doctrine were undermined), Givens v. Newsom, No. 20-cv-0852-JAM-
CKD, 2021 WL 65878, at *6 (E.D. Cal. Jan. 7, 2021) (holding that the
“extraordinary circumstances” doctrine applies to former officials but
“[s]everal of the doctrine’s rationales apply with less force when the
proposed deponent is not currently serving in office”), United States v.
Wal-Mart Stores, Inc., No. CIV.A. PJM-01-1521, 2002 WL 562301,
at *4 (D. Md. Mar. 29, 2002) (“In the absence of controlling case law to
the contrary, this Court is of the opinion that the Morgan doctrine is
applicable to efforts by parties to depose former high-ranking
officials.”).
IN RE U.S. DEPARTMENT OF EDUCATION 33
that Bernanke could be deposed after he left office and
ordered as a cautionary measure that the discovery deadline
be extended, if necessary, to allow for further consideration
of that possibility. Id. Ultimately, former Chairman
Bernanke testified at trial. See Starr Int’l Co. v. United
States, 121 Fed. Cl. 428, 431 (Fed. Cl. 2015), vacated in part
on other grounds, 856 F.3d 953 (Fed. Cir. 2017).
Second, as the majority acknowledges, Maj. Op. 17–18,
the doctrine “is based on the notion that ‘[h]igh ranking
government officials have greater duties and time constraints
than other witnesses’ and that, without appropriate
limitations, such officials will spend an inordinate amount of
time tending to pending litigation.” Bogan v. City of Boston,
489 F.3d 417, 423 (1st Cir. 2007) (quoting Kessler, 985 F.2d
at 512); In re FDIC, 58 F.3d 1055, 1060 (5th Cir. 1995)
(same); In re Cheney, 544 F.3d 311, 314 (D.C. Cir. 2008)
(“The duties of high-ranking executive officers should not
be interrupted by judicial demands for information that could
be obtained elsewhere.”). The majority, likewise, relies
heavily on the time constraints on high-ranking officials and
disruptions that a deposition would impose upon their duties
to preclude the deposition of former Secretary DeVos. See
Maj. Op. 17–18 (“[C]ourts are reluctant to distract cabinet
secretaries from their executive duties.); id. (“[T]he
executive branch’s execution of the laws can be crippled if
courts can unnecessarily burden secretaries with compelled
depositions.”); id. at 23 (allowing a deposition when it is
unjustified would “distract[] cabinet secretaries from their
essential duties”); id. at 25 (deposition would intrude into
official’s time). Further, the majority identifies these time
demands as a “key reason” supporting its new standard.
Maj. Op. 24 n.3. I fail to see how these concerns apply where
the official is no longer in office, as is the situation here.
Neither the majority, nor the government, nor former
34 IN RE U.S. DEPARTMENT OF EDUCATION
Secretary DeVos has identified any essential governmental
duties that she would be distracted from by having to prepare
and sit for a three-hour deposition. Nothing in the record or
the majority’s authorities supports the notion that the threat
of a potential deposition after leaving office would affect a
cabinet secretary’s actions while in office, the decision to
accept an appointment, or the decision to remain in office.
See Maj. Op. 18–19, 28.
Third, the majority points to the “process-inquiry
rationale,” Maj. Op. 27, but the deliberative process
privilege accounts for concerns of intruding into an official’s
decision-making process. The district court properly
preserved that privilege in its order denying the motion to
quash by stating that “[n]o part of this order maligns the
Secretary’s deliberative-process privilege.” Former
Secretary DeVos is free to invoke the privilege and decline
to answer questions that intrude on her deliberative process
while in office. In fact, she and other officials have invoked
the privilege during the course of discovery. The
deliberative process privilege also accounts for any potential
chilling effect on the official’s decision-making discourse
because one of the four factors considered when determining
whether an exception to the privilege is warranted is “the
extent to which disclosure would hinder frank and
independent discussion regarding contemplated policies and
decisions.” Karnoski v. Trump, 926 F.3d 1180, 1206 (9th
Cir. 2019) (per curiam) (internal citation omitted). Thus,
apart from the “extraordinary circumstances” doctrine, the
deliberative process privilege shields a former official’s
decision-making process and remains available to DeVos.
Finally, the majority’s remaining concerns are the
“serious repercussions for the relationship between two
coequal branches of government.” In re USA, 624 F.3d 1368,
IN RE U.S. DEPARTMENT OF EDUCATION 35
1372 (11th Cir. 2010) (quoting Kessler, 985 F.2d at 512).
See Maj. Op. 15–19. The animating force behind this
rationale is that forcing an official to “fight the subpoena by
placing [themselves] in contempt implicates separation of
power concerns and would harm the public perception.” In
re USA, 624 F.3d at 1372. The majority omits that the D.C.
Circuit has rejected that reasoning because it relies on United
States v. Nixon, 418 U.S. 683 (1974), and “[does] not take
into account sufficiently the constitutional distinction
between the President himself and subordinate officers in the
executive branch.” In re Kessler, 100 F.3d 1015, 1017 (D.C.
Cir. 1996); see also In re USA, 624 F.3d at 1374 (discussing
the D.C. Circuit’s Kessler decision as “disagree[ing] with
[our] analysis). Indeed, the D.C. Circuit has observed that,
“[c]ontempt orders have been levied against executive
branch officials and agencies without even so much as a hint
that such orders offend separation of powers.” In re Kessler,
100 F.3d at 1017 (citing cases). 3
In sum, no court of appeals decision has resolved
whether the “extraordinary circumstances” doctrine should
apply with the same force to a former secretary where the
underlying rationales have limited applicability. These
differences remain unresolved by the majority’s opinion.
3
The majority dismisses this point as a misunderstanding on my
part. Maj. Op. 28 n.4. It is the majority that misunderstands the
threshold flaw in its reasoning. The separation of powers concerns that
the majority heavily relies on to find clear error, see Maj. Op. 15–19, are
rooted in concerns that a current official would face a contempt charge.
Those concerns do not apply to former Secretary DeVos. For the same
reason, those concerns also do not support the first Bauman factor, but
that is a separate error by the majority that I do not address. Because
clear error is necessary to grant a writ of mandamus, Van Dusen,
654 F.3d at 841, and I do not believe the district court clearly erred, I see
no need to address the remaining Bauman factors.
36 IN RE U.S. DEPARTMENT OF EDUCATION
The majority’s conclusory statements that the rationales
apply equally are questionable at best and far from
“indisputable.” In re Walsh, 15 F.4th 1005, 1010 (9th Cir.
2021). Because there is no binding precedent addressing
when a former secretary may be required to testify, I would
hold that the district court did not commit clear error when
it denied the motion to quash. See, e.g., Mersho, 6 F.4th at
898 (“A ruling usually cannot be clearly erroneous if there is
no Ninth Circuit authority on point, or the question has not
been addressed by any circuit court.”). For this reason alone,
I would deny the petition.
II.
Even if the “extraordinary circumstances” doctrine
applies equally to a former high-ranking official such as
former Secretary DeVos, I would deny the petition for the
independent reason that the district court did not err at all.
The majority concludes that the district court erred in
articulating the doctrine and in applying it to the record, but
the district court did neither. The majority’s framing of the
rule requires (1) a threshold showing of bad faith or improper
behavior to warrant extra-record discovery, (2) that the
information sought is “essential to the case,” and (3) that the
“information sought from the secretary cannot be obtained
in any other way.” Maj. Op. 21. The district court
formulated the rule as: (1) a “strong showing of bad faith or
improper behavior,” (2) “unique and relevant first-hand
knowledge,” and (3) the “necessary information cannot be
obtained through other less burdensome and intrusive
means.” Although the majority agrees with the district court
that extra-record discovery is warranted in light of the
“strong showing of bad faith” by the Department, Maj.
Op. 22–23 (citing Volpe, 401 U.S. at 420), it holds that the
district court erred in considering the second and third
IN RE U.S. DEPARTMENT OF EDUCATION 37
factors. I find no meaningful difference between the
standard applied by the district court and the majority’s,
much less a “clear and indisputable” difference, Walsh,
15 F.4th at 1010. I also find no basis for rejecting the district
court’s careful and thorough findings.
A.
For judicial review to encompass evidence beyond the
administrative record, plaintiffs must make a threshold
showing that the agency engaged in “bad faith or improper
behavior.” Dep’t of Com. v. New York, 139 S. Ct. 2551,
2573–74 (2019). (quoting Volpe, 401 U.S. at 420). When no
formal findings are “made at the same time as the decision,”
effective judicial review also requires “examining the
decisionmakers themselves.” Volpe, 401 U.S. at 420. Such
extra-record discovery is a deviation from the general rule in
Administrative Procedure Act (APA) claims, 5 U.S.C.
§ 706, where judicial review is limited to the
“contemporaneous examination” documented in the
administrative record. Dep’t of Com., 139 S. Ct. at 2573.
The rationale behind the exception is that “meaningful
judicial review” requires that the agency “disclose the basis”
of its action, or inaction (delay). Id.I agree with the majority and district court that the
plaintiffs have met the threshold showing of bad faith which
enables them to pursue extra-record evidence as authorized
by the district court. The majority does not take issue with
the district court’s finding that the Department acted in bad
faith when it issued “perfunctory and unreasoned form-
denial letters” at a “breakneck pace” although the Secretary
had previously “justified the eighteen-month halt . . . on the
time required for considered decision making.” The district
court also found that the administrative record “lacked an
official and contemporaneous justification.” As the district
38 IN RE U.S. DEPARTMENT OF EDUCATION
court’s order explained, the information sought from DeVos
would allow the plaintiffs and court to discern the actual
basis for the Department’s conduct.
B.
As to the second factor, the majority holds that the
information sought must be “essential to the case,” In re
United States (Holder), 197 F.3d 310, 314 (8th Cir. 1999),
and that the district court erred in its articulation of that
standard. Maj. Op. 21. In my view, there is no meaningful
difference between the “essential” standard adopted by the
majority and the “necessary” standard adopted by the district
court. The district court determined that the information
former Secretary DeVos possessed was “unique and relevant
first-hand knowledge,” and also found that the information
she had was “necessary.” The cases on which the district
court relied in adopting the “unique and relevant” standard
also require the information to be “necessary.” Lederman,
731 F.3d at 203; Bogan, 489 F.3d at 423. 4 Indeed, both cases
cited to the majority’s key decision. Id. (citing Holder,
197 F.3d at 314). Viewed in that context, the district court’s
use of “necessary” in the third prong was clearly a reference
to the information’s necessity as established in the second
prong.
Moreover, the district court did not look for only
“relevant” information. See Maj. Op. 24. The district court
thoroughly explained why former Secretary DeVos had
unique information that was necessary, or “essential,” to the
plaintiffs’ APA claims. To adjudicate the underlying APA
4
The First Circuit used the disjunctive “or” instead of the
conjunctive “and,” suggesting that only one factor was necessary. See
Lederman, 731 F.3d at 203.
IN RE U.S. DEPARTMENT OF EDUCATION 39
claims, the district must decide whether the Department’s
eighteen-month halt in processing borrower defense
applications was justified or unreasonable, 5 U.S.C.
§ 706(1), whether the perfunctory denial notices violate the
requirement that denials include a “brief statement of the
grounds for denial,” 5 U.S.C. § 555(e), and whether the
perfunctory denials were arbitrary, capricious, an abuse of
discretion, or otherwise unlawful, 5 U.S.C. § 706(2)(A); see
Sweet v. DeVos, 495 F. Supp. 3d 835, 847 (N.D. Cal. 2020)
(ordering plaintiffs to “move for summary judgment as to the
lawfulness of the Secretary’s delay and the lawfulness of the
perfunctory denial notice” after the additional discovery, and
allowing the Department to do the same).
In assessing the deposition testimony of the officials that
the Department had indicated would be most likely to have
responsive information, the district court found “material
gaps at the highest rungs of the Department’s
decisionmaking record” that revealed DeVos’s personal
involvement in the challenged conduct. These gaps in
information demonstrated “the necessity” for her testimony.
The court also explained that given the basis for the
plaintiffs’ original claims—agency inaction—there was no
“official and contemporaneous justification,” and therefore
it was necessary to examine “the decisionmakers
themselves.” Although the Department filed a certified
administrative record, the district court described it as
“sparse,” largely consisting of post-hoc litigation affidavits
that did not answer the central questions in dispute.
Further, as noted above, the district court found that the
Department’s bad faith placed the credibility of its
justifications for the inaction in question. The district court
explained that it “cannot determine whether the Secretary
has offered sufficient explanation for the eighteen-month
40 IN RE U.S. DEPARTMENT OF EDUCATION
delay until we address the threshold question of whether
those [proffered] explanations in fact drove the delay in real
time.” To that end, the district court considered the nature
of the APA claims, the history of the litigation (including the
pending cross-motions for summary judgment), and the
existing discovery responses to conclude that former
Secretary DeVos’s testimony was needed to determine the
basis of the Department’s delay. See Dep’t of Com., 139
S. Ct. at 2573.
The majority fails to explain why we should disregard
the district court’s findings, given its familiarity with the
litigation and assessment of the record, that former Secretary
DeVos’s testimony is necessary to properly resolve the
plaintiffs’ claims. The majority does not point to any
support in the record and resorts instead to grand inferences
based on the plaintiffs’ counsel’s statements at oral
argument. Maj. Op. 24–25. Neither the plaintiffs’
“preview” of their summary judgment argument, nor
DeVos’s public statements that she opposes borrower
defense applications, 5 changes the fact that the district court
will ultimately need to decide whether any of the
Department’s asserted justifications drove the Department’s
decisions, and whether those justifications were reasonable.
C.
As to the third factor, the majority takes issue with the
district court’s conclusion that “literal exhaustion of
alternatives” is not required and faults the plaintiffs for not
showing that they cannot obtain the information “in any
other way.” Maj. Op. 26. None of the majority’s cited
authorities require “[e]xhaustion of all reasonable alternative
5
See Dkt. 17, Oral Arg. at 34:30; 32:10.
IN RE U.S. DEPARTMENT OF EDUCATION 41
sources.” Maj. Op. 26. Even if they did, the district court
properly found that there were no reasonable alternatives to
obtain the necessary information by less intrusive means.
To begin, the district court’s articulation of the third
factor is not necessarily inconsistent with the majority’s
holding that all reasonable alternatives must be exhausted.
The relevant cases also do not require exhaustion of all
possible discovery tools. What other courts ask is whether
the information is “obtainable from another source,” Holder,
197 F.3d at 314, and, in particular, whether the government
can point to specific, “alternate witnesses.” Kessler,
985 F.2d at 512 (finding that the record showed that the
information sought was available from a former and current
FDA official); see also In re USA, 624 F.3d at 1375 (finding
that another presidential appointee, the Assistant
Administrator, was an “adequate substitute for the
Administrator”). Although Bogan, a Second Circuit case
cited by the district court, stated that the plaintiffs had not
“exhausted other available avenues,” the plaintiffs there had
not “pursue[d] other sources” and “[i]n particular,” had not
sought discovery from the mayor’s aides who “likely” were
involved and “could have clarified the Mayor’s role.”
489 F.3d at 424. By contrast here, the plaintiffs heeded the
Department’s sworn statements about which officials were
most likely to have relevant information, but those officials
then disclaimed authority to make the decisions at issue and
intimated that the decisions rested with former Secretary
DeVos. No court of appeals has stated that all discovery
methods must be exhausted in order to show that the
information is not available from another source.
But even accepting the majority’s rule, the district
court’s finding was still proper. When we engage in
mandamus review, we must assess the district court’s
42 IN RE U.S. DEPARTMENT OF EDUCATION
challenged order “in the context of the history of [the]
litigation.” Plata v. Brown, 754 F.3d 1070, 1076 (9th Cir.
2014). Far from merely making “vague references to [the
previous deponents’] own scope of authority,” Maj. Op 26,
the district court determined that the information sought
could not be obtained through other sources given the nature
of the APA claims, the history of the case, and the existing
administrative record. Put differently, “all reasonable
alternative sources” had been exhausted, Maj. Op. 26, to no
avail.
Further, the district court explained why other discovery
tools, including document discovery and a Rule 30(b)(6)
deposition were not reasonable alternatives. The
Department had previously identified in a sworn statement
the four high-level ranking officials who were most likely to
have relevant information and stated that attempting to seek
information from other officials was likely to be duplicative.
Before seeking former Secretary DeVos’s testimony, the
plaintiffs deposed those officials, including the then-Under
Secretary and former Under Secretary. Those officials
disclaimed the authority to make the decision to halt
adjudication of the borrower defense applications,
disclaimed knowledge of who made the decision, and
testified that DeVos had the authority to make such a
decision. The Director of the Borrower Defense Unit
testified that DeVos was directly responsible for making the
Department’s decision in 2019 to “eliminate the backlog and
adjudicate any new case that comes in within 90 days.”
In effect, the parties had already conducted the essential
functions of a Rule 30(b)(6) deposition. See Fed. R. Civ. P.
30(b)(6) (describing that named organization “must
designate one or more officers” who “must testify about
information known or reasonably available to the
IN RE U.S. DEPARTMENT OF EDUCATION 43
organization”). The district court also reasonably concluded
that alternatives like “line employees” would likely reveal
little about the policy decisions in light of the statements
made by the four high-ranking officials, and that Department
lawyers do not make policy decisions. Because the “current
set of policymakers cannot answer [the remaining]
questions,” and the government could not identify an
alternative witness, see e.g., Kessler, 985 F.2d at 512; In re
USA, 624 F.3d at 1375, the “only place left to look,” as the
district court put it, “[was] up.” 6
The majority brushes aside the district court’s
comprehensive assessment of the plaintiffs’ discovery and
hangs its hat again on the fact that former Secretary DeVos
publicly opposed granting borrower defense applications.
Maj. Op. 26. That reasoning is neither persuasive nor
properly deferential under our standard for granting
mandamus relief, particularly in the discovery context where
we should give considerable deference to the district court’s
familiarity with the details of the case. Cf. Walsh, 15 F.4th
at 1010 (recognizing that mandamus is “especially difficult”
in the discovery context because of the reluctance to
interfere with the district court’s case management). Taking
the depositions of the other Department officials and the
document discovery into account, along with the “sparse”
and questionable administrative record, the district court
properly found that all reasonable alternatives had been
exhausted and that pursuing other discovery would be futile.
I see no reason to reject that determination.
6
At the district court’s direction, the government provided the court
with the Department’s relevant organizational hierarchy.
44 IN RE U.S. DEPARTMENT OF EDUCATION
III.
In my view, the district court did not clearly err in
denying the motion to quash, particularly because of the
salient feature that DeVos is a former secretary. Even under
the majority’s newly adopted standard, the district court did
not err. Our court has developed guidelines to guard against
the “dangers of unprincipled use” of the extraordinary
mandamus power, including undermining the “mutual
respect” that “marks the relationship between federal trial
and appellate courts.” Bauman, 557 F.2d at 653–54. The
majority justifies its approach by invoking separation of
powers concerns. As the Supreme Court once explained,
James Madison wrote in Federalist No. 47 that,
separation of powers does not mean that the
branches ‘ought to have no partial agency in,
or no controul over the acts of each other.’
The fact that a federal court’s exercise of its
traditional Article III jurisdiction may
significantly burden the time and attention of
the Chief Executive is not sufficient to
establish a violation of the Constitution.
Clinton v. Jones, 520 U.S. 681, 703 (1997) (emphasis in
original). “Surely, if this burden can be exerted upon the
Chief Executive, then it necessarily follows that Cabinet
level officials can be so burdened as well.” In re USA,
624 F.3d at 1380 (Martin, J., dissenting). The majority’s
opinion is misguided and unnecessarily expands the scope of
our authority under the All Writs Act. 28 U.S.C. § 1651.
IN RE U.S. DEPARTMENT OF EDUCATION 45
For all the above reasons, I would deny the government’s
petition for a writ of mandamus. I respectfully dissent. 7
7
I concur in the majority’s holding in Part I. See Maj. Op. 13–15.