FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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

D.C. No.

2:18-cv-04756-

GMS

OPINION

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-today 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.