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In re United States

United States Court of Appeals, Ninth Circuit

March 7, 2018

In re United States of America,
v.
United States District Court for the District of Oregon, Eugene, Respondent, United States of America; Christy Goldfuss, in her official capacity as Director of the 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; U.S. Department of the Interior; Ryan Zinke, in his official capacity as Secretary of Interior; U.S. Department of Transportation; Elaine Chao, in her official capacity as Secretary of Transportation; U.S. Department of Agriculture; Sonny Perdue, in his official capacity as Secretary of Agriculture; U.S. Department of Commerce; Wilbur Ross, in his official capacity as Secretary of Commerce; U.S. Department of Defense; Jim Mattis, in his official capacity as Secretary of Defense; 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, in his official capacity as President of the United States; The National Association of Manufacturers; American Fuel & Petrochemical Manufacturers; American Petroleum Institute, Petitioners, 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.

          Submitted December 11, 2017 San Francisco, California

         Appeal 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

          Eric 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.

          Julia 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.

          David 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.

          Sarah 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.

          James R. May and Erin Daly, Dignity Rights Project, Widener University, Delaware Law School, Wilmington, Delaware; Rachael Paschal Osborn, Vashon, Washington; for Amici Curiae Law Professors.

          Joanne 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. [*]

         SUMMARY [**]

         Mandamus

         The 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.

         Twenty-one 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.

         The 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.

          OPINION

          THOMAS CHIEF JUDGE.

         In this 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 ...


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