Wednesday, March 7, 2018
Today the Ninth Circuit issued its decision in In re United States of America (earlier coverage of the case here). As the opinion describes the litigation: “Twenty-one young plaintiffs brought suit against the United States, the President, and various Executive Branch officials and agencies, alleging that the defendants have contributed to climate change in violation of the plaintiffs’ constitutional rights.”
The district court had denied the defendants’ motion to dismiss the case for lack of jurisdiction and failure to state a claim, prompting the defendants to seek a writ of mandamus from the Ninth Circuit. Chief Judge Sidney Thomas authors a unanimous opinion denying the government’s petition without prejudice. The opinion is joined by Judges Marsha Berzon and Michelle Friedland. Judge Alex Kozinski was on the panel when oral argument occurred, but he was replaced by Judge Friedland following his retirement.
Judge Thomas’s opinion is structured around the Bauman factors—which have long guided the Ninth Circuit when it comes to mandamus petitions. They are:
(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.
Here are the opinion’s concluding paragraphs:
We are mindful that some of the plaintiffs’ claims as currently pleaded are quite broad, and some of the remedies the plaintiffs seek may not be available as redress. However, the district court needs to consider those issues further in the first instance. Claims and remedies often are vastly narrowed as litigation proceeds; we have no reason to assume this case will be any different. Nor would the defendants be precluded from reasserting a challenge to standing, particularly as to redressability, once the record is more fully developed, or from seeking mandamus in the future, if circumstances justify it. And the defendants retain the option of asking the district court to certify orders for interlocutory appeal of later rulings, pursuant to 28 U.S.C. § 1292(b).
Because petitioners have not satisfied the Bauman factors, we deny the petition without prejudice. Absent any discovery order, the mandamus petition is premature insofar as it is premised on a fear of burdensome discovery. The issues pertaining to the merits of this case can be resolved by the district court, in a future appeal, or, if extraordinary circumstances later present themselves, by mandamus relief. For these reasons, we decline to exercise our discretion to grant mandamus relief at this stage of the litigation.