IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

NO. 95-40207

_______________________

IN RE: FEDERAL DEPOSIT INSURANCE CORPORATION,

Petitioner.

______________________________________________________________________________

Petition for Writ of Mandamus to the United States

District Court for the Southern District of Texas

______________________________________________________________________________

_________________________

NO. 95-40230

_________________________

UNITED STATES OF AMERICA,

Plaint iff,

versus

11,950 ACRES OF LAND, MORE OR LESS, LOCATED IN CAMERON COUNTY,

TEXAS,

Defendant,

FIRST HEIGHTS BANK,

Defendant-Counter Claimant,

STATE OF TEXAS; CAMERON COUNTY TAX ASSESSOR-COLLECTOR,

Defendants,

and

PACIFIC UNION COMPANY,

Defendant-Appellee.

***********************************

POINT ISABEL INDEPENDENT SCHOOL DISTRICT,

Cross Claimants-Appellees,

versus

FEDERAL DEPOSIT INSURANCE CORPORATION, As Manager of the

FSLIC Resolution Fund (FDIC),* District Judge of the Northern District of Texas, sitting by designation.

1 The parties have consented to try the lawsuit before the magistrate judge. Therefore, there was

no need for the FDIC first to seek review of the order from a district judge.

- 2 - Cross Defendant-Appellant.

***********************************

JOE G. SANDERS,

Trustee,

KATHY GRADY, C. L. BALLARD, PLAYA DEL RIO INC., KMG ENTERPRISES,

Defendants,

and

PACIFIC UNION COMPANY,

Cross Defendant-Appellee.

________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

________________________________________________________________ (July 7, 1995)

Before JOLLY and BENAVIDES, Circuit Judges, and FITZWATER, District Judge. *

FITZWATER, District Judge:

This petition for a writ of mandamus challenges an order of a magistrate judge declining to

quash notices of deposition issued to three members of the Board of Directors of the Federal Deposit

Insurance Corporati on ("FDIC"). The question presented is whether the magistrate judge clearly

abused his discretion by permitting the depositions in the absence of findings of, and of a basis to find,

exceptional circumstances. We hold that he did, and therefore grant the petition.

I

Petitioner FDIC seeks relief from an order of a magistrate judge 1 in a condemnation action

filed by plaint iff United States of America ("Unit ed States") in the Brownsville Division of the

Southern District of Texas (the "Brownsville Action"). The United States sues to condemn several

thousand acres of land located at the southernmost t ip o f Texas along the Gulf Coast and the Rio2 Because the particulars are unnecessary to our decision, we do not elaborate upon the details of

the transactions by which First Heights became the owner of Playa del Rio. These may be gleaned

from Sierra Club , 992 F.2d at 547.

- 3 - Grande River, known as Playa del Rio. We are not strangers to litigation regarding Playa del Rio,

which we have previously characterized as "an environmentally sensitive tract o f land in South

Texas." S ee Sierra Club v. FDIC

, 992 F.2d 545, 547 (5th Cir. 1993). Although we address in this

petition a ruling in the Brownsville Action, t he animat ing force for the instant dispute is related

litigation pending in the Houston Division of the Southern District of Texas (the "Houston Action").

The Houston Action pertains to the validity and enforceability of a 1992 agreement to sell Playa del

Rio to defendant-respondent Pacific Union Company ("Pacific Union"). In order to understand the

relevant background facts as well as the question we decide, it is necessary that we recount some of

the prior history of this contemplated sale, and of the Sierra Club litigation, and that we discuss the

Houston Action.

In 1988 First Heights Savings Bank, fsb ("First Heights") and the Federal Savings and Loan

Insurance Corporati on ("FSLIC") entered into a transaction whe reby First Heights acquired the

assets--including Playa del Rio--of vario us failed thrift institutions. 2 As part of the arrangement

between First Heights and the FSLIC, the parties executed an Assistance Agreement that entitled

First Heights to reimbursement for losses on covered assets. The loss protecti on conferred by the

Agreement obligated Firs t Height s to procure the FSLIC's approval prior to the sale of a covered

asset . The Agreement also gave the FSLIC the right in its discretion to direct the transfer of a

covered asset to anyone whom the FSLIC specified. The FDIC became Manager of the FSLIC

Resolution Fund upon passage of the Financial Institutions Reform, Recovery, and Enforcement Act

of 1989, Pub. L. No. 101-73, 1989 U.S.C.C.A.N. (103 Stat.) 183 ("FIRREA"). FIRREA abolished

the FSLIC, and the FDIC retained most of the FSLIC's liabilit ies. The FDIC is a party to the Houston

Action in its capacity as Manager of the FSLIC Resolution Fund. The FDIC i s not a party to the

Brownsville Action.3 We observed in Sierra Club that plaint iffs' apparent goal was to prevent the sale to Pacific Union

"so that an environmentally conscious entity . . . can purchase the land." Id.

4 We filed our opinion in Sierra Club on June 8, 1993, one day prior to the Board's action. S ierra

Club , 992 F.2d 545.

- 4 - On August 6, 1992 First Heights and Pacific Union entered into a contract for the sale of

Playa del Rio. First Heights sought the FDIC's consent, and submitted a request for loss assistance,

because the sale price of $5.8 millio n was less than Playa del Rio's adjusted book val ue of $7.4

million. In September 1992 the FDIC approved First Heights' request.

In January 1993, however, three parties, including the Sierra Club, sued the FDIC to require

it to withdraw its approval of the sale, and to enjoin it from consenting to the sale until the FDIC had

determined the environmenta l impact in accordance with the National Environmental Policy Act.

Sierra Club

, 992 F.2d at 548. 3 The district court issued a mandatory preliminary injunction ordering

the FDIC to "withdraw its approval and withhold future approval for Heights' sale of the Playa del

Rio property, pending consideration by the FDIC Board of Directors of the issues surrounding the

FDIC's approval or rescission of the Playa del Rio sale request." Id. (quoting district court order).

The FDIC appealed the injunction. While the appeal was pending, the FDIC on February 5,

1993 notified First Heights that it had rescinded its approval of the sale to Pacific Union. On June

8, 1993 we vacated the preliminary injunction and remanded the case for further proceedings, because

plaint iffs had not yet shown they were entitled to injunctive relief, and the district court had failed to

comply with the requirement of Fed. R. Civ. P. 52 that it enter findings of fact and conclusions of law.

Id. at 552.

On June 9, 1993 the FDIC's Board of Directors formally approved a staff proposal that the

FDIC Division of Resolutions be permitted to exercise its discretion under the Assistance Agreement

to direct that First Heights sell Playa del Rio to the United States Fish & Wildlife Service for $5.4

millio n. 4 The Board adopted a resolution that recited inter alia that the FDIC had earlier approved

the sale to Pacific Union for $5.8 millio n, but noted the Sierra Club litigation and the district court's- 5 -

injunction. The resolution explained that Playa del Rio included substantial wetlands and represented

a valuable natural resource and critical habitat to several endangered species. It also pointed out that

the Coastal Barrier Improvement Act of 1990 authorized the Fish & Wildlife Service to acquire the

property from First Heights. The Board found that the sale would permit the recovery of significant

economic value for Playa del Rio , and should resolve the issues presented by the Sierra Club

litigation.

In July 1993, prior to the FDIC's directing First Heights to sell Playa del Rio to the Fish &

Wildlife Service, First Heights resubmitted to the FDIC a request to approve the sale to Pacific

Union, and for loss assistance. In an August 24, 1993 letter, the FDIC notified First Heights that it

had disapproved the request. First Heights then terminated the sale contract.

The next day, on August 25, 1993, First Heights and the FDIC initiated the Houston Action,

seeking a judgment declaring on various grounds that the proposed sale of Playa del Rio from First

Heights to Pacific Union was of no force and effect. Pacific Union has counterclaimed, contending

that First Heights and the FDIC are liable for violating the Fifth Amendment by taking property

without just compens a tion; seeking review of the FDIC's decisions pursuant to the Administrative

Procedure Act ("APA"), 5 U.S.C. § 701 et seq. ; and alleging a violation of Pacific Union's right to

substantive due process.

Pacific Union complains that it is an unjustly-r eject ed suitor for Playa del Rio who has

expended in excess o f $1.75 million to close the purchase. It contends that discovery in the

Brownsville and Houston Actions has reve aled t hat First Heights declined to complete the sale to

Pacific Union because another agency of the United States government wanted the property

. Pacific

Union asserts that after the parties ex ecuted the sale contract, and following FDIC approval,

Secretary of the Interior Bruce Babbitt ("Secretary Babbitt") requested of FDIC A c ting Chairman

A ndrew Hove ("Chairman Hove") that FDIC representatives meet with Fish & Wildlife Servic e

personnel. Secretary Babbitt indicated that the Fish & Wildlife Service was interested in adding Playa

del Rio to the lower Rio Grande Valley National Wildlife Refuge Complex. Pacific Union avers that- 6 -

fo rmer Texas Governor Ann Richards and Vice President Al Gore supported Secretary Babbitt's

efforts. Pacific Union maintains that without its knowledge, representatives of the Fish & Wildlife

Service and the FDIC met in April, resulting in a plan to sell Playa del Rio to the Fish & Wildlife

Service or its designee. The parties discussed transferring Playa del Rio to the Fish & Wildlife

Service through a conduit, The Nature Conservancy ("TNC"). The FDIC and TNC could not agree

on an amount necessary to indemnify TNC from anticipated claims by Pacific Union that TNC had

interfered with the First Heights-Pacific Union sale contract. Pacific Union contends the Houston

Action is the result of the FDIC and First Heights' realization that the First Heights-Pacific Union sale

contract was an impediment to the Fish & Wildlife Service's plan to acquire Playa del Rio.

Pacific Union asserts that it submitted interrogatories in the Houston Action concerning the

identities of fact witnesses and persons responsible for making the decision concerning the FDIC's

August 24, 1993 disapproval of First Heights ' request to approve the sale to Pacific Union and

request for loss assistance. It points out that the parties agreed that this discovery was also equally

usable in the Brownsvi l le Action. The FDIC identified three persons in response to the

interrogatories: Act ing Chairman Hove; Comptroller of the Currency Eugene A. Ludwig

("Comptroller Ludwig"); and Acting Director of the Office of Thrift Supervision Jonathan L. Fiechter

("Dir ect o r Fiechter"). Pacific Union contends that aside from the significance of the deponents'

testimony with respect to the claims against the FDIC, the depositions will be important to establish

civil conspiracy against First Heights.

On December 8, 1993 the United States commenced the instant Brownsville Action, in which

it seeks to condemn 11,500 acres of Playa del Rio. The trial court has bifurcated the trial of the title

and value issues, and the first phase is currently set to be tried in August 1995.

In the Houston Action, the parties have engaged in substantial discovery. Pacific Union has

deposed six current or f o rmer FDIC employees, including Kevin Stein ("Director Stein"), the

Associate Director of the FDIC's Division of Resolutions, wh o was principally responsible for

managing the FSLIC Resolution Fund. Also deposed were Michael D. Solomon, who was Acting5 Chairman Hove is currently Vice Chairman of the FDIC.

6 The Houston magistrate judge directed Pacific Union to submit proposed questions in writing,

following which the judge would give the issue further consideration.

7 We ho ld t hat the FDIC has no other adequate means of obtaining relief. We agree with the

Eleventh Circuit that requiring a government official "to incur a contempt sanction would have

- 7 - Assistant General Counsel and served as Director Stein's primary legal advisor; Leslie R. Crawford,

a staff attorney who was involved in advising Director Stein regarding Playa d el Rio; James A.

Weaver, Dallas Regional Manager of the FDIC's Division of Resolutions; Ken Sheffield, a Senior

Case Manager on the Division staff; and Benjamin R. Idziak, formerly an attorney in the FDIC's

Dallas office.

On March 2, 1995 Pacific Union served deposition notices directed to three members of the

FDIC's Board of Directors: Chairman Hove, 5 Comptroll e r Ludwig, and Director Fiechter. The

notices bore the cas e capt ion of both the Brownsville and Houston Actions, and stated that the

depositions would take place in Dallas, Texas on March 13 and 14, 1995.

On March 6, 1995 the FDIC moved in both the Brownsville and Houston Actions to quash

t he notices. Pacific Union contended the depositions were appropriate because the FDIC had

id ent ified these individuals in response to interrogatories as persons responsible for, or principally

involved in, the FDIC's disapproval of the sale to Pacific Union. The magistrate judge in the Houston

Action granted the relief, 6 but the magistrate judge in the Brownsville Action denied the FDIC's

motion. The FDIC appealed the March 6, 1995 order of the Brownsville magistrate judge to this

court, and separately filed the instant petition for a writ of mandamus. A panel of this court stayed

the order, and expedited the appeal.

II

"We are to issue a writ of mandamus only `to remedy a clear usurpation of power or abuse

of discretion' when `no other adequate means of obtaining relief is available.'" I n re Fibreboard Corp.

,

893 F.2d 706, 707 (5th Cir. 1990 ) (quoting I n re Paradyne Corp.

, 803 F.2d 604, 612 (11th Cir.

1986)). 7 "An abuse of discretion exists only when there is [a] definite and firm conviction that theserious repercussions for the relationship between two coequal branches of government." In re United

States

, 985 F.2d 510, 513 (11th Cir.) (per curiam) (granting writ of mandamus), cert. denied

,

___ U.S.

___, 114 S.Ct. 545 (1993). Moreover, although the FDIC also brings an interlocutory appeal

of the magistrate judge's order, seeking to invoke appellate jurisdiction on the basis of Cates v. LTV

Aerospace Corp.

, 480 F.2d 620 (5th Cir. 1973), Pacific Union maintains that Cates does not confer

jurisdiction, and moves to dismiss the appeal . We do not think Pacific Union can at once move to dismiss the appeal and urge that the FDIC has an adequate means of obtaining relief.

- 8 - court below committed clear error of judgment in the conclusion it reached upon a weighing of the

relevant factors." C onkling v. Turner

, 18 F.3d 1285, 1293 (5th Cir. 1994) (qu oting Ho ffman v.

Merrell Dow Pharmaceuticals, Inc., (In re Bendectin Litig. ), 857 F.2d 290, 307 (6th Cir. 1988), cert.

denied

, 488 U.S. 1006 (1989)) (internal quotati ons omitted). The term abuse of discretion "does not

imply intentional wrong or bad faith, or misconduct, nor any reflection on the judge." U nited States

v. Walker

, 772 F.2d 1172, 1176 n.9 (5th Cir. 1985) (quoting Black's Law Dictionary (5th ed. 1979

at 10)).

It is a settled rule in this circuit that "exceptional circumstances must ex ist before the

involuntary depositions of high agency o fficials are permitted." I n re Office of Inspector General

, 933

F.2d 276, 278 (5th Cir. 1991) (per curiam) (citing EEOC v. K-Mart , 694 F.2d 1055, 1067-68 (6th

Cir. 1982)). "[T]op executive department officials should not, absent extraordinary circumstances,

be called to testif

y regarding t heir reasons for taking official actions." I d. (quoting Simplex Time

Recorder Co. v. Secretary of Labor

, 766 F.2d 575, 586 (D.C. Cir. 1985)). "High ranking government

o fficials have greater duties and time constraints than other witnesses." I n re United States

, 985 F.2d

510, 512 (11th Cir.) (per curiam), cert. denied

,

___ U.S.

___, 114 S.Ct. 545 (1993). "[T]he Supreme

Court has indicated that the practic e o f calling high officials as witnesses should be discouraged."

Id. (citing United States v. Morgan , 313 U.S. 409 (1941)).

III

We hold that the magistrate judge clearly abused his discretion by declining to quash the

deposition notices issued to the three FDIC Directors.

A8 The magistrate judge provided in his ord er t hat , "Considering the high-level governmental

positions held by these deponents, the Court admonishes the parties to cooperate as to the scheduling

of these depositions."

- 9 - As a threshold matter, we observe that the magistrate judge apparently made no attempt to

find exceptional circumstances before rejecting the FDIC's motion to quash. During the course of

a previously-scheduled status conference with counsel, the judge addressed the merits of the FDIC's

quasha l motion. The hearing record reflects that he considered brief arguments from counsel;

assumed that some areas of inquiry might be privileged and that objections based upon privilege could

be lodged during the course of the depositions; and concluded that the depositions should be allowed

to go forward. Except with respect to the scheduling of the depositions, 8 it does not appear that the

magistrate judge considered the high-ranking status of the deponents, the potential burden that the

depositions wo uld impose upon them, or the substantive reasons for taking the depositions. The

judge's order denied the motion without assigning reasons. After rejecting the motion to quash, and

in denying the FDIC's motion for a stay pending appeal, the magistrate judge offered some rationale

for his decision. He held i nter alia that Pacific Un ion was entitled to depose the three Directors

because (1) the FDIC is a party to the Houston Action, and that action involves issues concerning

Playa del Rio, which is the center of the Brownsville Action; (2) Pacific Union has a motion pending

to add the FDIC as a party to the Brownsville Action and there is a motion pending in the Houston

Action to abate in favor of the Brownsville Action; (3) in the Houston Action the FDIC has indicated

in i nterrogatory answers that the three Directors made certain decisions concerning the sale of the

property, and those matters are relevant to the dispute; (4) the parties have stipulated to the use of

the Houston Action interrogatories in the Brownsville Action; and (5) Pacific Union has represented

that it has been unable t o o bt ain t he information through other means. These findings do not

demonstrate, however, that t he judge specifically considered and found that exceptional

circumstances were present.

B- 10 -

Moreover, we are unable to discern from the record before us a basis on which the judge

could have found the existence of exceptional circumstances.

Pacific Unio n co ntends, on essentially the following line of reasoning, that the depositions

should be allowed to go forward. Chairman Hove was the author and recipient of correspondence

that reveals the development and implementation of a plan and agreement to sell Playa del Rio to the

Fish & Wildlife Service rather than to Pacific Union. The FDIC's decision is the subject of Pacific

Union's counterclaim in the Houston Action and cross-claim in the Brownsville Action. The FDIC

is seeking in the Houston Action a declaration that the decision to sell the land to the Fish & Wildlife

Service rather than to Pacific Union was proper and that the First Heights-Pacific Union contract is

a nullit y; therefore, Pacific Union should be permitted to depose the decision-ma kers in order to

ascertain the facts on which the determination was based and the standard applied in the process. The

FDIC made a decision that directly affected Pacific Union's property rights and then filed a lawsuit

against Pacific Union seeking a judicial determination that its action terminated those rights. There

is no other source of evidence than the testimony of three deponents in question, especially since the

FDIC designated only these individuals as being t he persons responsible for making the decision

regarding the FDIC's August 24, 1993 disapproval of First Heights' request. The June 9, 1993 FDIC

resolution is an inadequate substitute for a full administrative agency record. The seriousness of the

litigation, and of allegations of misconduct (including conspiracy and cover-up) by government

agencies and o fficials who grossly abused their power to deprive Pacific Union of its contract rights,

and the government's role as a party-plaintiff, favor disclosure.

W e disagree t hat Pacific Union has made the strong showing necessary for a finding of

exceptional circumstances. Pacific Union disclaims any intention to "suggest that senior government

o fficials may be deposed in every case in which the government is a party." (Footnote om itted). Yet

the reasoning Pacific Union advances would risk eviscerating well-settled principles of administrative

law. If countenanced, this rationale would justify deposing high-level government officers in a

plethora of cases in order to probe their decision-making processes and the reasons for their9 The FDIC contends it decisions with respect to Playa del Rio are unreviewable. We need not

decide this question.

- 11 - decisions. Agency leaders often send and receive correspondence relative to their actions. Their

official conduct frequently affects--sometimes adversely--the property rights of private parties. This

does not of itself subject them to the burdens of litigation discovery.

N o r is t he present case distinguished by the fact that the FDIC initiated the Houston

declaratory judgment action. As the FDIC correctly points out, the order before us for review was

entered in the Brownsville Action, which the FDIC did not commence and to which it is not a party.

It is not sufficient for Pacific Union to rely upon the joint nature of the discovery undertaken in the

two cases, because in the Houston Action--to which the FDIC is a party --the magistrate judge

quashed the depositions.

But even overlooking this impediment to Pacific Union's position, we reject the proposition

that an administrative agency subjects its high-level o fficials to discovery when it brings a declaratory

judgment action intended to give effect to an agency decision. Agency actions are usually reviewable,

if at all, 9 pursuant to the APA. It is recognized that courts reviewing these decisions normally "may

not require the agency officials who participated in that decision to give testimony explaining their

action unless there has been a strong showing of bad faith or improper behavior." B ank of Commerce

v. City National Bank

, 484 F.2d 284, 288 (5th Cir. 1973) (citing Citizens to Preserve Overton Park,

Inc. v. Volpe

, 401 U.S. 402, 420 (1971)), cert. denied

, 416 U.S. 905 (1974). We discern nothing

in the character of a declaratory judgment action of the type brought here that warrants altering this

rule, and permitting discovery from t he agency's high-level officials in which they are obligated to

explain their decisions. Absent a strong showing of bad faith or improper behavior, senior agency

decision-makers do not sub ject t hemselves to discovery when the agency seeks a declaratory

judgment as to the validity of its action. By adopting such a rule, courts could unintentionally place

government agencies in the untenable position of relinquishing otherwise available avenues of relief

in order to preserve the application of settled rules that govern judicial review of agency decisions.- 12 -

Nor do we see in the presen t record a strong showing of bad faith or improper behavior,

notwithstanding Pacific Union's allegations of misconduct (including conspiracy and cover-up) and

assertions of gross abuse of power by government agencies and officials. The present state of the

evidence reflects that, pursuant to its authority under the Assistance Agreement to approve the sale

of covered as sets and to direct First Heights to transfer such assets to anyone whom the FDIC

specified, the FDIC retained discretion with regard to the dispo sit io n of Playa del Rio. Absent a

showing of contrary provisions of law or contract, and none has been made here, the fact that agency

heads considered the preferences (even political ones) of other government o fficials concerning how

this discretion should be exercised does not estab lish the required degree of bad faith or improper

behavior.

We note that Pac ific Unio n also relies in part upon the FDIC's response to Pacific Union's

i nterrogatory No. 7 to urge that the three Directors are proper depone nts. In that i nterrogatory

,

Pacific Union asked the FDIC to "[i]dentify each and every committee or board, and its members, that

made, was responsible for, or was principally involved with any determination or decision concerning

the August 24, 1993 disapproval" of First Heights' July 1993 second request to approve the sale of

Playa del Rio to Pacific Union and request for loss assistance. The FDIC has demonstrated, however,

that although i nterrogatory No. 7 an d an at t endant definition of terms required that it identify the

Directors, the August 24 decision was in fact made by Director Stein of the FDIC 's Division of

Resolutions, whom Pacific Union has already deposed. We think it will be the rarest of cases--and

the present action is not one--in which exceptional circumstances can be shown where the testimony

is available from an alternate witness. See In re United States

, 985 F.2d at 512 (citing as weighing

against finding of extraordinary circumstances, fact t hat testimony was available from alternate

witnesses).

* * *

The magistrate judge denied the FDIC's motion to quash depositions without first determining

that there were exceptional circ umst ances that justified this form of discovery from three senior10 We dismiss the FDIC's appeal as moot.

- 13 -

o fficials of the FDIC. This was a clear abuse of discretion. Moreover, from our review of the record,

we are unable to discern any exceptional circumstances that would have warranted allo wing the

depositions to take place. Accordingly, we grant the petition and order the magistrate judge to vacate

the March 6, 1995 order and grant the FDIC's motion to quash depositions. 10

PETITION GRANTED.