Walsh v. U.S. Dist. Court for the Dist. of Ariz. (In re Walsh)

• Decision Date: 19 October 2021
• Docket Number: No. 21-70685,21-70685
• Parties: IN RE Martin J. WALSH ; U.S. Department of Labor, Martin J. Walsh, Secretary of Labor; U.S. Department of Labor, Petitioners, 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.
• Court: U.S. Court of Appeals — Ninth Circuit

15 F.4th 1005

IN RE Martin J. WALSH ; U.S. Department of Labor,

Martin J. Walsh, Secretary of Labor; U.S. Department of Labor, Petitioners,

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.

No. 21-70685

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 13, 2021 San Francisco, California

Filed October 19, 2021

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.

Daryl Manhart (argued), Susanne E. Ingold, and Aaron Duell, Burch & Cracchiolo P.A., Phoenix, Arizona, for Respondent.

Before: J. Clifford Wallace, Mary M. Schroeder, and Danielle J. Forrest, Circuit Judges.

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 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, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009), quoting Cheney v. U.S. Dist. Court for D.C. , 542 U.S. 367, 390, 124 S.Ct. 2576, 159 L.Ed.2d 459 (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 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." Roviaro v. United States , 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639 (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, 77 S.Ct. 623. 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, 77 S.Ct. 623. "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, 77 S.Ct. 623.

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.

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...