NOTE: This order is nonprecedential.

United States Court of Appeals 

for the Federal Circuit

__________________________ 

IN RE UNITED STATES, 

Petitioner.

__________________________ 

Miscellaneous Docket No. 163

__________________________ 

On Petition for Writ of Mandamus to the United 

States Court of Federal Claims in No. 11-CV-0779, Judge 

Thomas C. Wheeler. 

__________________________ 

ON PETITION

______________________ 

Before DYK, MOORE, and TARANTO, Circuit Judges. 

DYK, Circuit Judge. 

O R D E R

An investor seeking to represent the class that owned 

common shares in the American International Group, Inc. 

(“AIG”) during the financial crisis of 2008 has sued the 

United States in the United States Court of Federal 

Claims (“Claims Court”). It asserts that the actions of the 

Federal Reserve Board, Federal Reserve Bank of New 

York, and Department of Treasury relating to its providing AIG credit under Section 13(3) of the Federal Reserve 

Act, Pub. L. No. 63-43, § 13(3) (1913) (codified as amended 

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IN RE US 2

at 12 U.S.C. § 343), gave rise to a claim for damages 

under that statute or the Fifth Amendment of the United 

States Constitution. In pursuit of its claims, the investor 

seeks to depose Ben S. Bernanke, Chairman of the Board 

of Governors of the Federal Reserve. Before this court is 

the government’s petition for a writ of mandamus seeking 

to direct the Claims Court to issue a protective order. For 

the following reasons, we grant the petition. 

BACKGROUND

Respondent Starr International Co., Inc. (“Starr”) is 

the lead plaintiff in a class action filed in the Claims 

Court. The suit was brought on behalf of investors that 

had owned AIG common stock between September 16, 

2008, and September 22, 2008, or had the right to vote at 

AIG shareholders meeting on June 30, 2009. 

At the center of Starr’s complaint is the September 

2008 line of credit secured by AIG from the government 

pursuant to section 13(3) of the Federal Reserve Act. 

That provision authorizes a Federal Reserve Bank to 

provide credit in “unusual and exigent circumstances,” 

which must be approved by no less than five members of 

the Board of Governors of the Federal Reserve System. 

Section 13(3) further requires that any notes, drafts, and 

bills of exchange be secured to the satisfaction of the 

Federal Reserve Bank. 

After the Federal Reserve Board voted in favor of 

authorizing AIG section 13(3) credit, AIG was offered a 

term sheet that would allow access to $85 billion secured 

by all of AIG’s assets with an initial annual cost to AIG of 

approximately 14.5% per annum on the condition that the 

government was given control of AIG as controlling lender 

and controlling shareholder. The term sheet further 

required that AIG provide to the government a nearly 

80% equity share in AIG. 

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According to Starr’s complaint, the government coerced AIG’s Board of Directors into accepting its terms, 

which Starr characterizes as grossly disproportionate 

given that the loan was fully secured and a 14.5% interest 

rate was also imposed. Starr premises the Claims Court’s 

jurisdiction on 28 U.S.C. § 1491(a), alleging that the 

government took AIG’s property, including 562,868,096 

shares of AIG common stock, without due process or just 

compensation as required by the Takings Clause of the 

Fifth Amendment of the U.S. Constitution. Starr’s complaint further asserts that by demanding a 79.9% interest 

in AIG as part of the terms of line of credit, the government exceeded its authority under Section 13(3), thus 

illegally exacting the property of AIG’s shareholders.

In March 2012, the government moved the Claims 

Court to dismiss Starr’s complaint for lack of jurisdiction 

and for failure to state a claim upon which relief could be 

granted. Among other things, the government argued 

that Starr’s illegal exaction theory should be dismissed 

because Section 13(3) fails to mandate the return of 

money to it or AIG. In its discussion of that portion of the 

government’s motion, the Claims Court explained that 

“this case involves novel applications of Section 13(3),” 

and “it is premature at this stage to rule decisively on the 

issue . . . .” Starr Intern. Co. v. United States, 106 Fed. 

Cl. 50, 84 (2012).

Soon after defeating the government’s motion to 

dismiss, Starr sought to depose Chairman Bernanke 

concerning the above-mentioned events and the Federal 

Reserve’s decision-making process. In response, the 

government moved the Claims Court for a protective 

order. The government’s motion urged that Bernanke 

was currently the chairman of the Federal Reserve with a 

broad range of responsibilities, that his deposition would 

be disruptive and that Starr had not exhausted all other 

methods of discovery before deposing the Chairman, 

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noting that Starr had scheduled depositions of former 

Vice-Chairman Donald Kohn and other key decision 

makers from the Department of the Treasury and Federal 

Reserve Bank of New York. The government further 

argued that it would be improper for Starr to depose 

Chairman Bernanke concerning the Board’s internal 

deliberations regarding its decisions or Chairman 

Bernanke’s thought processes on related issues. 

In response, Starr argued that there were several 

reasons why Mr. Bernanke’s deposition was important to 

the case. Starr argued that Bernanke was a key decision 

maker in the government’s evaluation and initiation of 

the AIG taking. Starr further argued that Chairman 

Bernanke had knowledge of various relevant aspects of 

the case. In addition, Starr pointed out that Chairman 

Bernanke had provided testimony before Congress, given 

various public speeches and written a book about the AIG 

events. 

On July 29, 2013, the Claims Court issued an order 

denying the government’s motion. The Claims Court 

found that Mr. Bernanke was a key witness in this case, 

and his testimony would be highly relevant to the issues 

presented. The court acknowledged that generally highranking officials cannot be forced to testify absent extraordinary circumstances. However, because of Mr. 

Bernanke’s personal involvement in the decision-making 

process to bail out AIG, the court concluded that it is 

“improbable that Plaintiff would be able to obtain the 

same testimony or evidence from other persons or 

sources.” Because granting the protective order would in 

effect “deprive the Court of important relevant evidence in 

its fact-finding and resolution of this case,” the Claims 

Court held that Starr should be permitted to depose Mr. 

Bernanke, although the Claims Court trial judge would 

himself attend the deposition “to assure that proper and 

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efficient use of time is maintained.” Starr Intern. Co., Inc. 

v. United States, 112 Fed. Cl. 56, 59 (2013).

 The government petitioned this court for a writ of 

mandamus to vacate the July 29, 2013, order and direct 

the Claims Court to enter a protective order. We have 

jurisdiction under 28 U.S.C. § 1651. See In re United

States, 463 F.3d 1328 (Fed. Cir. 2006). 

DISCUSSION

I 

Pursuant to the All Writs Act, 28 U.S.C. § 1651(a), 

this court has authority to issue a writ of mandamus “as 

‘necessary or appropriate in aid of’ our jurisdiction.” Miss. 

Chem. Corp. v. Swift Agric. Chems. Corp., 717 F.2d 1374, 

1379 (Fed. Cir. 1983) (citing 28 U.S.C. § 1651(a)). The 

remedy of mandamus is available only in extraordinary 

situations to correct a clear abuse of discretion or usurpation of judicial power.” In re Calmar, Inc., 854 F.2d 461, 

464 (Fed. Cir. 1988). A party seeking a writ bears the 

burden of proving “‘that its right to issuance of the writ is 

clear and indisputable, . . . and that it lacks adequate 

alternative means to obtain the relief sought.’” In re 

Spalding Sports Worldwide, Inc., 203 F.3d 800, 804 (Fed. 

Cir. 2000) (quoting In re Regents of Univ. of Cal., 101 F.3d 

1386, 1387 (Fed. Cir. 1996)). 

We agree with the government that this discovery 

order warrants mandamus. A number of our sister circuits have recognized that mandamus may properly be 

used as a means of immediate appellate review of a denial 

of a protective order to prevent deposition of high-ranking 

government officials. See In re United States (Jackson), 

624 F.3d 1368, 1372-73 (11th Cir. 2010); In re Cheney, 

544 F.3d 311, 314 (D.C. Cir. 2008); In re Sec. Exch. 

Comm’n, 374 F.3d 184, 187-88 (2d Cir. 2004); In re United 

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States (Holder), 197 F.3d 310, 316 (8th Cir. 1999); In re 

FDIC, 58 F.3d 1055, 1060 (5th Cir. 1995); In re United 

States (Kessler), 985 F.2d 510, 513 (11th Cir. 1993). As 

they have explained, if the law were otherwise, serious 

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. Jackson, 624 F.3d at 1372. The right 

to not appear during deposition would be lost if review 

was denied until final judgment.

II

Rule 26(b)(1) of the Rules of the Claims Court authorizes “discovery regarding any nonprivileged matter that is 

relevant to any party’s claim or defense . . . .” FCL CT 

Rule 26(b)(1). The Claims Court concluded that the deposition of Chairman Bernanke was highly relevant given 

his personal involvement in the events, and thus his 

testimony should be discoverable. Although exceptions to 

the general rule that the public has a right to evidence 

must be narrowly construed, United States v. Bryan, 339 

U.S. 323, 331 (1950), mandamus should issue to prevent 

such a deposition because Chairman Bernanke is a highly 

ranked government official and Starr has not shown 

extraordinary circumstances. Jackson, 624 F.3d at 1377; 

Holder, 197 F.3d at 316; Kessler, 985 F.2d at 513. 

A 

We begin with the Supreme Court’s decision in United 

States v. Morgan, 313 U.S. 409, 422 (1941), which has 

long stood for the general proposition that high officials 

should rarely be compelled to testify regarding the deliberative process used to arrive at a decision within the 

scope of their government duties. In Morgan, the trial 

court had allowed the Secretary of Agriculture to be 

examined as to how he had arrived at his decision to set 

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rates to be charged by market agencies for their services. 

Id. As an aside to the merits of the case, the Supreme 

Court admonished the trial court for allowing the Secretary to be questioned at length regarding the manner and 

extent of his study of the record and his consultation with 

his subordinates. Id. 

In cases following Morgan, two primary rationales for 

limiting the examination of current high-ranking government officials have emerged. First, that allowing such 

examination can disturb the integrity of the administrative process. Id. For example, in Montgomery Ward & 

Co. v. Zenith Radio Corp., 673 F.2d 1254, 1264 (CCPA 

1982), our predecessor, the Court of Customs and Patent 

Appeals, ruled that it would be improper to allow the 

plaintiff challenging a settlement agreement to probe into 

the Department of Commerce’s motives and processes 

behind the settlement. Likewise, in Bacon v. Department 

of Housing and Urban Development, we ruled that a 

plaintiff could not call the Secretary of Housing and 

Urban Development to testify regarding his reduction-inforce decision, citing the Supreme Court’s strong warning 

“against inquiry into the mental processes of an agency 

head.” 757 F.2d 265, 270 (Fed. Cir. 1985). Second, that 

high-ranking officials must be permitted to perform their 

official tasks without disruption or diversion. NEC Corp. 

v. United States, 151 F.3d 1361, 1375 (Fed Cir. 1998) 

(citing Simplex Time Recorder Co. v. Sec’y of Labor, 766 

F.2d 575, 586 (D.C. Cir. 1985)). The rationale of this 

exclusion from testimony is that such officials “have 

greater duties and time constraints than other witnesses” 

and “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).

Our sister circuits have provided substantial guidance 

as to what is required to justify deposing current highCase: 13-163 Document: 21 Page: 7 Filed: 10/16/2013
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ranking government officials. As an initial matter, courts 

have held that even in cases such as this, in which the 

government is a movant, the party seeking deposition 

bears the burden of proving extraordinary circumstances. 

See, e.g., Holder, 197 F.3d at 316. In deciding whether 

that burden has been met, courts have held that the 

government official must have personal involvement or 

first-hand knowledge of the underlying dispute. See, e.g., 

Bogan, 489 F.3d at 423. In addition, courts have set forth 

requirements that are helpful in analyzing whether the 

deposition is truly necessary, including whether the 

official has “first-hand knowledge related to the claim 

being litigated,” and “discovery is permitted only where it 

is shown that other persons cannot provide the necessary 

information.” Id. at 423. (citing Holder, 197 F.2d at 314). 

These considerations are designed to ensure that current 

high-ranking officials are only deposed in cases of “extraordinary circumstances” or “special need.” Jackson, 

624 F.3d at 1372.

B 

The Claims Court held that Starr had demonstrated 

the extraordinary circumstances necessary to warrant 

deposing Chairman Bernanke at this time. We disagree. 

On the record before us, we find that there are at least 

two reasons why Chairman Bernanke should not be 

deposed as Starr proposes, and why a protective order 

should issue. 

First, Chairman Bernanke is currently serving as the 

Chairman of the Federal Reserve Board and his term does 

not expire until February 1, 2014. As the government 

points out, the Chairman carries the same rank as a 

Cabinet-level Secretary and is the active executive officer 

of the Board and chair of the Federal Open Market Committee. Scheduling Chairman Bernanke’s deposition 

while he occupies his current position creates all the risks 

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of disrupting significant ongoing government activities 

identified in the courts of appeals decisions following 

Morgan. Moreover, a current deposition creates the risks 

of probing into the decision-making process discussed 

below. There appears to be no substantial prejudice to 

Starr in postponing the deposition of Chairman Bernanke, if one occurs, until after he leaves his post. The deadline for discovery should, if necessary, be extended beyond 

the current close on December 20, 2013, for that purpose.

 Second, Starr proposes to inquire into the Federal 

Reserve’s deliberative processes or Chairman Bernanke’s 

mental processes. Morgan and its successors set a very 

high standard before any such inquiry of a high government official is allowed, requiring a showing of extraordinary circumstances. Starr has not made the necessary 

showing.

Starr asserts a takings claim based on the theory that 

AIG was coerced into accepting the terms of the bailout 

and a statutory violation based on the theory that the 

government did not have the authority to take an equity 

stake in AIG. 

To support this theory, as best as we can make out, 

Starr seeks to question Chairman Bernanke on the following issues, which pertain to the Federal Reserve’s deliberative processes and the Chairman’s mental state: (1) 

whether Chairman Bernanke and the Federal Reserve 

believed that the Federal Reserve had the authority to 

take an equity stake in AIG; (2) whether they believed 

that the Federal Reserve’s actions were within the Federal Reserve Bank’s “incidental powers” under the Federal 

Reserve Act and whether the interest rules were fixed 

with a view to accommodating business and commerce; (3) 

whether Chairman Bernanke or the Federal Reserve 

intended the terms of the bailout to be “punitive.” We do 

not agree that Starr has established extraordinary cirCase: 13-163 Document: 21 Page: 9 Filed: 10/16/2013
IN RE US 10

cumstances justifying the inquiry into the Chairman’s 

mental processes or the Federal Reserve’s deliberative 

processes. 

 On this record, Starr’s efforts to inquire into these 

issues have all the appearance, and vices, of a fishing 

expedition rather than an effort to establish legally material facts. 

In short, Starr has not established the extraordinary 

circumstances necessary to justify the deposition of 

Chairman Bernanke at all while he holds the position of 

Federal Reserve Board Chairman, much less to inquire 

into the Federal Reserve’s deliberative processes or the 

Chairman’s mental processes. We note that the processinquiry rationale of Morgan and its successors hardly 

becomes inapplicable upon an official’s departure from his 

office; though we need not say how, that rationale, among 

other considerations, would play out if Starr seeks to 

depose Chairman Bernanke even after he leaves his 

position. Those are matters best addressed in the first 

instance by the Claims Court and, if necessary, thereafter 

on further petition to this court. The writ is granted.

Accordingly,

IT IS ORDERED THAT: 

The government’s petition is granted to the extent 

that the Claims Court’s July 29, 2013 order is vacated 

and the Claims Court is directed not to allow Starr to 

depose Chairman Bernanke until such time that Starr 

has meet its burden consistent with the foregoing analysis

and no sooner than February 1, 2014. 

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 FOR THE COURT

 /s/ Daniel E. O’Toole 

Daniel E. O’Toole

Clerk

s19

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