FILED
FOR PUBLICATION
JUL 20 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: UNITED STATES OF AMERICA; No. 18-71928
CHRISTY GOLDFUSS; MICK
MULVANEY; JOHN HOLDREN; RICK D.C. No. 6:15-cv-01517-AA
PERRY; U.S. DEPARTMENT OF THE
INTERIOR; RYAN ZINKE; U.S.
DEPARTMENT OF OPINION
TRANSPORTATION; ELAINE L.
CHAO; U.S. DEPARTMENT OF
AGRICULTURE; SONNY PERDUE;
UNITED STATES DEPARTMENT OF
COMMERCE; WILBUR ROSS; U.S.
DEPARTMENT OF DEFENSE; JAMES
N. MATTIS; U.S. DEPARTMENT OF
STATE; OFFICE OF THE PRESIDENT
OF THE UNITED STATES; U.S.
ENVIRONMENTAL PROTECTION
AGENCY; U.S. DEPARTMENT OF
ENERGY; DONALD J. TRUMP;
MICHAEL R. POMPEO; ANDREW
WHEELER,
______________________________
UNITED STATES OF AMERICA;
CHRISTY GOLDFUSS, in her official
capacity as Director of Council on
Environmental Quality; MICK
MULVANEY, in his official capacity as
Director of the Office of Management and
Budget; JOHN HOLDREN, Dr., in his
official capacity as Director of the Office
of Science and Technology Policy; RICK
PERRY, in his official capacity as
Secretary of Energy; UNITED STATES
DEPARTMENT OF INTERIOR; RYAN
ZINKE, in his official capacity as
Secretary of Interior; UNITED STATES
DEPARTMENT OF
TRANSPORTATION; ELAINE L.
CHAO, in her official capacity as
Secretary of Transportation; UNITED
STATES DEPARTMENT OF
AGRICULTURE; SONNY PERDUE, in
his official capacity as Secretary of
Agriculture; UNITED STATES
DEPARTMENT OF COMMERCE;
WILBUR ROSS, in his official capacity as
Secretary of Commerce; UNITED
STATES DEPARTMENT OF DEFENSE;
JAMES N. MATTIS, in his official
capacity as Secretary of Defense; UNITED
STATES DEPARTMENT OF STATE;
ANDREW WHEELER, in his official
capacity as Acting Administrator of the
EPA; MICHAEL R. POMPEO, in his
official capacity as Secretary of State;
OFFICE OF THE PRESIDENT OF THE
UNITED STATES; U.S.
ENVIRONMENTAL PROTECTION
AGENCY; U.S. DEPARTMENT OF
ENERGY; DONALD J. TRUMP, in his
official capacity as President of the United
States,
Petitioners,
v.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON,
2
EUGENE,
Respondent,
KELSEY CASCADIA ROSE JULIANA;
XIUHTEZCATL TONATIUH M., through
his Guardian Tamara Roske-Martinez;
ALEXANDER LOZNAK; JACOB
LEBEL; ZEALAND B., through his
Guardian Kimberly Pash-Bell; AVERY
M., through her Guardian Holly McRae;
SAHARA V., through her Guardian Toa
Aguilar; KIRAN ISAAC OOMMEN; TIA
MARIE HATTON; ISAAC V., through his
Guardian Pamela Vergun; MIKO V.,
through her Guardian Pamela Vergun;
HAZEL V., through her Guardian Margo
Van Ummersen; SOPHIE K., through her
Guardian Dr. James Hansen; JAIME B.,
through her Guardian Jamescita Peshlakai;
JOURNEY Z., through his Guardian Erika
Schneider; VICTORIA B., through her
Guardian Daisy Calderon; NATHANIEL
B., through his Guardian Sharon Baring;
AJI P., through his Guardian Helaina
Piper; LEVI D., through his Guardian
Leigh-Ann Draheim; JAYDEN F., through
her Guardian Cherri Foytlin; NICHOLAS
V., through his Guardian Marie Venner;
EARTH GUARDIANS, a nonprofit
organization; FUTURE GENERATIONS,
through their Guardian Dr. James Hansen,
Real Parties in Interest.
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Petition For Writ Of Mandamus
Submitted July 19, 2018*
Before: THOMAS, Chief Judge, and BERZON and FRIEDLAND, Circuit Judges.
PER CURIAM.
In this petition for a writ of mandamus, the government asks us for the
second time to direct the district court to dismiss a case seeking various
environmental remedies, or, in the alternative, to stay all discovery and trial. We
denied the government’s first mandamus petition, concluding that it had not met
the high bar for relief at that stage of the litigation. In re United States, 884 F.3d
830, 833 (9th Cir. 2018). No new circumstances justify this second petition, and
we again decline to grant mandamus relief. The factual and procedural history of
this case was detailed in our prior opinion, and we need not recount it here. In re
United States, 884 F.3d at 833-34.
I
We have jurisdiction over this mandamus petition pursuant to the All Writs
Act, 28 U.S.C. § 1651. In considering whether to grant a writ of mandamus, we
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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are guided by the five factors identified in Bauman v. U.S. Dist. Ct., 557 F.2d 650
(9th Cir. 1977):
(1) whether the petitioner has no other means, such as a direct appeal, to
obtain the desired relief;
(2) whether the petitioner will be damaged or prejudiced in any 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 is 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
issues of first impression.
Perry v. Schwarzenegger, 591 F.3d 1147, 1156 (9th Cir. 2010) (citing Bauman,
557 F.2d at 654-55).
“Mandamus review is at bottom discretionary—even where the Bauman
factors are satisfied, the court may deny the petition.” San Jose Mercury News,
Inc. v. U.S. Dist. Ct., 187 F.3d 1096, 1099 (9th Cir. 1999).
II
The government does not satisfy the Bauman factors at this stage of the
litigation. It remains the case that the issues that the government raises in its
petition are better addressed through the ordinary course of litigation. We thus
decline to exercise our discretion to grant mandamus relief.
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A
The government does not satisfy the first Bauman factor. The government
argues that mandamus is its only means of obtaining relief from potentially
burdensome or improper discovery. However, the government retains the ability to
challenge any specific discovery order that it believes would be unduly
burdensome or would threaten the separation of powers.
In our opinion denying the first mandamus petition, we stated:
The defendants will have ample remedies if they believe a specific
discovery request from the plaintiffs is too broad or burdensome.
Absent any discovery order from the district court, or even any
attempt to seek one, however, the defendants have not shown that they
have no other means of obtaining relief from burdensome or otherwise
improper discovery.
In re United States, 884 F.3d at 835 (emphasis added).
Since that opinion, the government has not challenged a single specific
discovery request, and the district court has not issued a single order compelling
discovery. Instead, the government sought a protective order barring all discovery,
which the district court denied. The government can still challenge any specific
discovery request on the basis of privilege or relevance, or by seeking a tailored
protective order under Federal Rule of Civil Procedure 26(c). If the government
challenges a discovery request and the district court issues an order compelling
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discovery, then the government can seek mandamus relief as to that order.
Preemptively seeking a broad protective order barring all discovery does not
exhaust the government’s avenues of relief. Absent a specific discovery order,
mandamus relief remains premature.
This fact distinguishes this case from In re United States, 138 S. Ct. 443
(2017) (per curiam), in which the Supreme Court granted mandamus relief based
on a challenge to an order compelling discovery. In that case, the district court had
issued an order compelling the government to complete the administrative record
over the government’s objection that it had filed a complete record properly limited
to unprivileged documents. See id. at 444. The district court had also declined the
government’s request to stay its order until after the court resolved the
government’s motion to dismiss. Id. at 444-45. In this case, the government does
not challenge any such specific discovery order from the district court, and the
district court has already denied the government’s motion to dismiss. The
government continues to have available means to obtain relief from improper
discovery requests. It does not satisfy the first Bauman factor.
B
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Nor does the government satisfy the second Bauman factor. The
government makes two arguments for why it will be prejudiced in a way not
correctable on appeal. Neither is persuasive.
The government argues, for the first time, that merely eliciting answers from
agency officials to questions on the topic of climate change could constitute
“agency decisionmaking,” which the government contends could not occur without
following the elaborate procedural requirements of the Administrative Procedure
Act (“APA”). But the government cites no authority for the proposition that
agency officials’ routine responses to discovery requests in civil litigation can
constitute agency decisionmaking that would be subject to the APA.
The government has made no showing that it would be meaningfully
prejudiced by engaging in discovery or trial. This distinguishes this case from
others in which we have granted mandamus relief. See Credit Suisse v. U.S. Dist.
Ct., 130 F.3d 1342, 1346 (9th Cir. 1997) (granting mandamus relief when a
discovery order would force defendants “to choose between being in contempt of
court for failing to comply with the district court’s order, or violating Swiss
banking secrecy and penal laws by complying with the order”).
The government also argues that proceeding with discovery and trial will
violate the separation of powers. The government made this argument in its first
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mandamus petition, and we rejected it. In re United States, 884 F.3d at 836. As
we stated in our prior opinion, allowing the usual legal processes to go forward
will not threaten the separation of powers in any way not correctable on appeal. Id.
No new circumstances disturb that conclusion.1 See United States v. Alexander,
106 F.3d 874, 876 (9th Cir. 1997).
C
As detailed in our opinion denying the first mandamus petition, the
government does not satisfy the third, fourth, or fifth Bauman factors. In re United
States, 884 F.3d at 836-37. No new circumstances give us cause to reevaluate
these conclusions.
III
Because petitioners have not satisfied the Bauman factors, we deny the
mandamus petition without prejudice. The government’s fear of burdensome or
improper discovery does not warrant mandamus relief in the absence of a single
specific discovery order. The government’s arguments as to the violation of the
APA and the separation of powers fail to establish that they will suffer prejudice
not correctable in a future appeal. The merits of the case can be resolved by the
1
Following our previous opinion, the government moved for the first time in
the district court for judgment on the pleadings with respect to the inclusion of the
President as a named party, and a decision is pending on that motion.
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district court or in a future appeal. At this stage of the litigation, we decline to
exercise our jurisdiction to grant mandamus relief.
PETITION DENIED WITHOUT PREJUDICE.
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