ELR Citation: 40 ELR 20007
No(s). 10-14535 (11th Circ. Oct 28, 2010)

The Eleventh Circuit granted EPA's petition for a writ of mandamus to substitute the appearance of the EPA Assistant Administrator for Water for the appearance of the EPA Administrator at a hearing about compliance by the Agency with orders entered by the district court that concerned pollution of the Everglades. A lower court denied the motion for substitution and ordered the appearance of the EPA Administrator who is a high-ranking official of the executive branch. But compelling a high executive official to appear in a judicial proceeding encroaches on the separation of powers and, absent exigent circumstances, the judicial branch must respect the discretion of the executive branch to designate which high-ranking official should represent the Agency in a judicial proceeding. Because the record establishes no special need for compelling the appearance of the Administrator, and the Assistant Administrator is an adequate substitute, the court granted the petition for a writ of mandamus and directed the district court to allow the substitution.