In re McCarthy

On December 8, 2015, the Fourth Circuit Court of Appeals issued an order setting forth its rationale for granting the United States Environmental Protection Agency’s (EPA’s) petition for writ of mandamus precluding the deposition of EPA Administrator Gina McCarthy in a case pending in district court in West Virginia. The case, brought by Murray Energy Corporation and its affiliates, alleges that EPA has failed to comply with Section 321(a) of the Clean Air Act, which provides that EPA shall conduct evaluation of job loss and employment shifts that may result from administration and enforcement of the Clean Air Act. The Fourth Circuit was not convinced by the district court’s finding that alleged conflicts between McCarthy’s testimony before Congress and EPA’s representations to the court constituted “extraordinary circumstances” warranting deposition of a high-ranking official. The Fourth Circuit saw no contradiction in EPA’s position that would support the extraordinary circumstance finding and also was not persuaded that there was no alternative to deposing McCarthy. The Fourth Circuit also disagreed with the district court’s finding that EPA’s “apparent refusal” to comply with Section 321(a) was prima facie evidence of wrongdoing. The Fourth Circuit said that there was no clear misconduct.

On November 25, 2015, the Fourth Circuit Court of Appeals granted a petition for writ of mandamus by EPA Administrator Gina McCarthy to preclude Murray Energy Corporation (Murray Energy) from deposing her in its lawsuit seeking to compel EPA to undertake an evaluation of the Clean Air Act’s impacts on employment pursuant to Section 321(a) of the Clean Air Act. The Fourth Circuit indicated that a “reasoned exposition” of the basis for its order would follow “shortly.”

EPA supplemented its arguments in support of granting a writ of mandamus precluding deposition of Administrator after the district court denied EPA’s motions.