Martin Walsh v. Usdc-Azp

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE MARTIN J. WALSH; U.S. No. 21-70685
DEPARTMENT OF LABOR,
D.C. No.
2:18-cv-04756-
MARTIN J. WALSH, Secretary of GMS
Labor; U.S. DEPARTMENT OF LABOR,
Petitioners,
OPINION
v.
UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF ARIZONA, PHOENIX,
Respondent,
VALLEY WIDE PLASTERING
CONSTRUCTION, INC., DBA Valley
Wide Plastering, Inc., an Arizona
corporation; JESUS GUERRERO, AKA
Jesse Guerrero, an individual; ROSE
GUERRERO, an individual; JESSE
GUERRERO, JR., AKA JR Guerrero,
an individual,
Real Parties in Interest.
Petition for Writ of Mandamus
Argued and Submitted September 13, 2021
San Francisco, California
2 IN RE WALSH
Filed October 19, 2021
Before: J. Clifford Wallace, Mary M. Schroeder, and
Danielle J. Forrest, Circuit Judges.
Opinion by Judge Wallace
SUMMARY *
Petition for Writ of Mandamus / Fair Labor
Standards Act
The panel denied a petition for a writ of mandamus
seeking to reverse the district court’s order requiring the
Secretary of Labor for the U.S. Department of Labor to
disclose by April 2, 2021, the identities of informants who
will testify at trial and to direct the district court not to
require any disclosure of informant witnesses until a date
closer to trial.
The Secretary filed an action against Valley Wide
Plastering Construction, Inc., and various individual
defendants, alleging violations of the Fair Labor Standards
Act. During discovery, Valley Wide sought the identities of
all informant employees who provided information to the
Secretary. In response, the Secretary filed a motion for
protective order, invoking the government’s informant
privilege and requesting the district court to prohibit Valley
Wide from soliciting information tending to reveal any
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
IN RE WALSH 3
informant identities. The district court granted the motion
but also ordered the Secretary to reveal the identities of
informants testifying at trial by April 2, 2021. The Secretary
thereupon petitioned this court for a writ of mandamus to
reverse the district court’s order and to direct the district
court not to order the Secretary to identify the informant
witnesses any earlier than 75 days before trial.
The panel held that the district court’s order requiring the
Secretary to disclose the identities of informant witnesses
and their unredacted witness statements by April 2, 2021,
was not clearly erroneous as a matter of law. Applying the
third factor set forth in Bauman v. U.S. Dist. Ct., 557 F.2d
650 (9th Cir. 1977), whether the district court’s order was
clearly erroneous as a matter of law, the panel noted that the
record showed that the district court identified a need for
Valley Wide to know the identities of informant witnesses
by April 2, 2021, before summary judgment motions were
due, and carefully balanced the government’s interest in
nondisclosure before making its decision. The district court
did not pick that date arbitrarily and addressed and
considered the informant privilege issue on four separate
occasions. Considering the particular circumstances of this
case, the panel declined to interfere with the district court’s
day-to-day case management.
COUNSEL
Amelia B. Bryson (argued), Attorney; Rachel Goldberg,
Counsel for Appellate Litigation; Jennifer S. Brand,
Associate Solicitor; Elena S. Goldstein, Deputy Solicitor of
Labor; United States Department of Labor, Washington,
D.C.; for Petitioners.
4 IN RE WALSH
Daryl Manhart (argued), Susanne E. Ingold, and Aaron
Duell, Burch & Cracchiolo P.A., Phoenix, Arizona, for
Respondent.
OPINION
WALLACE, Circuit Judge:
The Secretary of Labor for the U.S. Department of Labor
(Secretary) petitions our court for a writ of mandamus to
reverse the district court’s order requiring the Secretary to
disclose by April 2, 2021, the identities of informants who
will testify at trial and to direct the district court not to
require any disclosure of informant witnesses until a date
closer to trial. We have jurisdiction under the All Writs Act,
28 U.S.C. § 1651(a). We review “the district court’s order
for clear error and grant[] the writ only where the district
court has usurped its power or clearly abused its discretion.”
Plata v. Brown, 754 F.3d 1070, 1076 (9th Cir. 2014)
(citation omitted). Because the district court did not clearly
err, we decline to issue the writ.
I.
The Secretary filed an action against Valley Wide
Plastering Construction, Inc., and various individual
defendants (collectively, Valley Wide), alleging violations
of the Fair Labor Standards Act. During discovery, Valley
Wide sought the identities of all informant employees who
provided information to the Secretary. In response, the
Secretary filed a motion for protective order, invoking the
government’s informant privilege and requesting the district
court to prohibit Valley Wide from soliciting information
tending to reveal any informant identities. The district court
held a hearing on the motion and, in a written order, granted
IN RE WALSH 5
the motion but also ordered the Secretary to reveal the
identities of informants testifying at trial by April 2, 2021.
The Secretary subsequently filed a motion to reconsider,
which the district court denied. The Secretary thereupon
petitioned this court for a writ of mandamus to reverse the
district court’s order directing the Secretary to reveal the
identities of informants who will testify at trial and reveal
their unredacted interview notes by April 2, 2021, and
directing the district court not to order the Secretary to
identify the informant witnesses any earlier than 75 days
before trial.
II.
“Mandamus is an extraordinary remedy that may be
obtained only to confine [a lower] court to a lawful exercise
of its prescribed jurisdiction or to compel it to exercise its
authority when it is its duty to do so.” Plata, 754 F.3d at
1076 (citation and internal quotation marks omitted).
Indeed, the Supreme Court has held that only “in
extraordinary circumstances—i.e., when a disclosure order
‘amount[s] to a judicial usurpation of power or a clear abuse
of discretion,’ or otherwise works a manifest injustice—a
party may petition the court of appeals for a writ of
mandamus.” Mohawk Indus., Inc. v. Carpenter, 558 U.S.
100, 111 (2009), quoting Cheney v. U.S. Dist. Court for
D.C., 542 U.S. 367, 390 (2004). “Ultimately, whether to
issue the writ is within this court’s discretion.” In re Perez,
749 F.3d 849, 854 (9th Cir. 2014) (citation omitted). “In
deciding whether to grant mandamus relief, we consider five
factors” known as the Bauman factors:
(1) whether the petitioner has other adequate
means, such as a direct appeal, to attain the
relief he or she desires; (2) whether the
petitioner will be damaged or prejudiced in a
6 IN RE WALSH
way not correctable on appeal; (3) whether
the district court’s order is clearly erroneous
as a matter of law; (4) whether the district
court’s order makes an “oft-repeated error,”
or “manifests a persistent disregard of the
federal rules”; and (5) whether the district
court’s order raises new and important
problems, or legal issues of first impression.
In re Van Dusen, 654 F.3d 838, 841 (9th Cir. 2011), quoting
Bauman v. U.S. Dist. Ct., 557 F.2d 650, 654–55 (9th Cir.
1977). Not every factor is needed for granting a writ of
mandamus. See Burlington N. & Santa Fe Ry. Co. v. U.S.
Dist. Ct. for Dist. of Mont., 408 F.3d 1142, 1146 (9th Cir.
2005) (“[I]ndeed, the fourth and fifth will rarely be present
at the same time.”). However, “[t]he third factor, clear error
as a matter of law, is a necessary condition for granting a
writ of mandamus.” In re Van Dusen, 654 F.3d at 841(citation omitted).
A.
We start with the third Bauman factor, clear error,
“because the absence of this factor will defeat a petition for
mandamus.” Id. “Clear error” is a highly deferential
standard of review, and we do not issue a mandamus “merely
because the petitioner has identified legal error.” Id.(citations omitted). Rather, the “clear error standard requires
of us a ‘firm conviction’ that the district court misinterpreted
the law . . . or committed a ‘clear abuse of discretion.’” In
re Perez, 749 F.3d at 855 (citations omitted).
The government’s informant privilege is “the
Government’s privilege to withhold from disclosure the
identity of persons who furnish information of violations of
law to officers charged with enforcement of that law.”
IN RE WALSH 7
Roviaro v. United States, 353 U.S. 53, 59 (1957) (citations
omitted). The purpose of the privilege is to promote
effective law enforcement and protect the identity of persons
who furnish information of violations of law from “those
who would have cause to resent the communication.” Id.at 59–60. The privilege, however, “must give way”
“[w]here the disclosure of an informer’s identity, or of the
contents of his communication, is relevant and helpful to the
defense of an accused, or is essential to a fair determination
of a cause.” Id. at 60–61. “For the informants privilege to
give way, the party seeking disclosure has the burden of
showing that its need for the information outweighs the
government’s interest in nondisclosure.” In re Perez,
749 F.3d at 858. Ultimately, the “proper balancing of these
competing interests lies within the discretion of the district
court, after taking into consideration ‘the particular
circumstances of each case.’” Id., quoting Roviaro, 353 U.S.
at 62.
Here, the Secretary argues that the district court
committed clear error by failing to identify any substantial
need for Valley Wide to know the identities of informant
witnesses at this stage of the litigation that outweighs the
Secretary’s strong interest in keeping the informants’
identities confidential. There is no doubt that the Secretary
has an interest in keeping the informants’ identities
confidential to prevent the possibility of retaliation by Valley
Wide. We have repeatedly recognized that the “informants
privilege is a particularly effective means of preventing
retaliation,” and that “an ounce of prevention is worth a
pound of cure.” In re Perez, 749 F.3d at 856–57.
Furthermore, this interest is heightened when a trial date has
not been set, and it is uncertain when it will be set due to the
COVID-19 pandemic and restrictions on courts conducting
jury trials.
8 IN RE WALSH
But it is not our role to re-balance the interests in place
of the district court. The clear error standard requires us to
determine, with firm conviction, whether the district court
misinterpreted the law or clearly abused its discretion. See
id. at 855. The record shows that the district court did
identify a need for Valley Wide to know the identities of
informant witnesses by April 2, 2021, and carefully balanced
the competing interests before making its decision.
Specifically, the district court identified the need for
disclosure of the informant witnesses by April 2, 2021, so
that Valley Wide could have this information before
summary judgment motions were due. The district court did
not pick that date arbitrarily and addressed the informant
privilege issue on four separate occasions. First, at the
hearing for the Secretary’s Motion for Protective Order, the
district court judge considered all the Secretary’s arguments
and stated: “I’m going to have you make an earlier disclosure
and I’m going to allow the defendants to depose prior to the
motions deadline in case other issues are raised which should
be the topic of a motion for summary judgment.” Dist. Ct.
Dkt. No. 122 at 17:14–20. Second, although the district
court’s written order did not explicitly articulate its
reasoning, it cited to the correct legal standard that governs
informant privilege, acknowledging that it must balance the
competing interests. There is no reason or basis on the
record for us to conclude that the district court failed to do
so. Third, the district court reiterated that it considered all
the Secretary’s arguments when it denied its Motion to
Reconsider. Finally, the district court again emphasized its
reasoning for requiring disclosure on April 2, 2021, in a
supplemental order in response to the Secretary’s petition.
In its supplemental order, the district court confirmed that
[a]t the time of the Court’s Order, discovery
cut-off was March 5, 2021 and dispositive
IN RE WALSH 9
motions were due by May 7, 2021. The Court
anticipated that trial would be set soon after.
The Court selected the April 2 date to ensure
that the identities of the Secretary’s testifying
informants would be revealed in time for
summary judgment motions. The Court
reasoned that a later deadline would be unfair
to Defendants because Defendants would be
unable to effectively address the Secretary’s
back wage calculation, and perhaps other
issues, in the parties’ respective summary
judgment motions without the testifying
informants’ identities, and, if necessary
requested depositions. Any retaliatory
actions taken by Defendants against such
employees could, of course, have been raised
to the Court. Accordingly, the Court set the
disclosure of testifying witnesses after
discovery cut-off but prior to the deadline for
case dispositive motion practice.
Dist. Ct. Dkt. No. 150 at 1–2.
Therefore, the district court did not clearly err as a matter
of law or abuse its discretion to order the Secretary to
disclose the identities of informant witnesses by that
particular date. Since Bauman and its progeny, we have
established a high bar for issuing a writ of mandamus, which
requires us to have a “firm conviction” that the district court
misinterpreted the law or committed a “clear abuse of
discretion.” In re Perez, 749 F.3d at 855. This standard
makes the availability of the writ especially difficult “in the
discovery context for two important reasons.” Id. at 854.
“First, this court is particularly reluctant to interfere with a
district court’s day-to-day management of its cases.” Id.
10 IN RE WALSH
(citation omitted). Second, “the petitioner must satisfy the
burden of showing that his right to issuance of the writ is
clear and indisputable.” Id. (citation omitted). Moreover,
the issue here is not whether the identities of the informant
witnesses should be disclosed at all but when should they be
disclosed. In its order, the district court stated that the
Secretary “will be required, and has already agreed to,
disclose the identities of the informants who are selected to
testify and produce their unredacted witness statements.”
Dist. Ct. Dkt. No. 123 at 4. Thus, the Secretary is not
opposing the disclosure itself. Instead, the Secretary is only
opposing the disclosure on an earlier date, which is a
decision that is even more subject to the district court’s
discretion. Cf. In re Perez, 749 F.3d at 858 (“The proper
balancing of these competing interests lies within the
discretion of the district court, after taking into consideration
‘the particular circumstances of each case.’” (citation
omitted)). Considering the particular circumstances of this
case, we decline to interfere with the district court’s day-to-
day case management.
We conclude that the Secretary has failed to satisfy the
third Bauman factor. Since “[t]he third factor, clear error as
a matter of law, is a necessary condition for granting a writ
of mandamus,” we need not consider the other Bauman
factors. In re Van Dusen, 654 F.3d at 841.
III.
We hold that the district court’s order requiring the
Secretary to disclose the identities of informant witnesses
and their unredacted witness statements by April 2, 2021, is
not “clearly erroneous as a matter of law.” Bauman,
557 F.2d at 654. The petition for writ of mandamus is
accordingly DENIED.