Submitted December 11, 2017 San Francisco, California
from the United States District Court for the District of
Oregon Ann L. Aiken, District Judge, Presiding Argued and
D.C. No. 6:15-cv-01517-TC-AA
Grant (argued), Deputy Assistant Attorney General; Andrew C.
Mergen, David C. Shilton, and Robert J. Lundman, Appellate
Section; Jeffrey H. Wood, Acting Assistant Attorney General;
Environment & Natural Resources Division, United States
Department of Justice, Washington, D.C.; for Petitioners.
Ann Olson (argued), Wild Earth Advocates, Eugene, Oregon;
Philip L. Gregory, Cotchett Pitre & McCarthy LLP,
Burlingame, California; for Real Parties in Interest.
William John Snape III and David Hunter, American University,
Washington College of Law, Washington, D.C., for Amici Curiae
Center for International Environmental Law and Environmental
Law Alliance Worldwide-US.
Bookbinder, Niskanen Center, Washington, D.C., for Amicus
Curiae Niskanen Center.
Courtney B. Johnson, Crag Law Center, Portland, Oregon, for
Amici Curiae League of Women Voters of the United States and
League of Women Voters of Oregon.
H. Burt, Earthjustice, San Francisco, California; Patti
Goldman, Earthjustice, Seattle, Washington; for Amicus Curiae
EarthRights International, Center for Biological Diversity,
Defenders of Wildlife, and Union of Concerned Scientists.
R. May and Erin Daly, Dignity Rights Project, Widener
University, Delaware Law School, Wilmington, Delaware;
Rachael Paschal Osborn, Vashon, Washington; for Amici Curiae
Spalding, Sierra Club, Oakland, California; Alejandra
Nuñez and Andres Restrepo, Sierra Club, Washington,
D.C.; for Amicus Curiae Sierra Club.
Charles M. Tebbutt, Law Offices of Charles M. Tebbutt P.C.,
Eugene, Oregon, for Amici Curiae Global Catholic Climate
Movement; Leadership Conference of Women Religious;
Interfaith Power and Light; The Sisters of Mercy of the
Americas' Institute Leadership Team; Sisters of Mercy
Northeast Leadership Team; Interfaith Moral Action on
Climate; Franciscan Action Network; The National Religious
Coalition for Creation Care and Interfaith Oceans; The Faith
Alliance for Climate Solutions; Eco-Justice Ministries; San
Francisco Zen Center; The Shalom Center; GreenFaith; The
Office of Apostolic Action & Advocacy; Christian life
Community-USA; and Quaker Earthcare Witness.
Zachary B. Corrigan, Food & Water Watch Inc., Washington,
D.C., for Amici Curiae Food & Water Watch Inc., Friends
of the Earth-US, and Greenpeace Inc.
Before: Sidney R. Thomas, Chief Judge, and Marsha S. Berzon
and Michelle T. Friedland, Circuit Judges. [*]
panel denied without prejudice a petition for a writ of
mandamus in which federal defendants sought an order
directing the district court to dismiss a case seeking
various environmental remedies.
plaintiffs brought suit against defendants - the United
States, and federal agencies and officials - alleging that
the defendants contributed to climate change in violation of
the plaintiffs' constitutional rights. The defendants
argued that allowing the case to proceed would result in
burdensome discovery obligations on the federal government
that would threaten the separation of powers.
panel held that the defendants did not satisfy the five
factors in Bauman v. U.S. Dist. Ct., 557 F.2d 650
(9th Cir. 1977), at this stage of the litigation.
Specifically, the panel held that mandamus relief was
inappropriate where the district court had not issued a
single discovery order, nor had the plaintiffs filed a single
motion seeking to compel discovery. The panel also held that
any merits errors were correctable through the ordinary
course of litigation. The panel further held that there was
no controlling Ninth Circuit authority on any of the theories
asserted by plaintiffs, and this weighed strongly against a
finding of clear error for mandamus purposes. Finally, the
panel held that district court's order denying a motion
to dismiss on the pleadings did not present the possibility
that the issue of first impression raised by the case would
evade appellate review. The panel concluded that the issues
that the defendants raised on mandamus were better addressed
through the ordinary course of litigation.
petition for a writ of mandamus, the defendants ask us to
direct the district court to dismiss a case seeking various
environmental remedies. The defendants argue that allowing
the case to proceed will result in burdensome discovery
obligations on the federal government that will threaten the
separation of powers. We have jurisdiction over this petition
pursuant to the All Writs Act, 28 ...