Hello, this is Summary Judgment, a podcast offering easy-to-understand explanations of major court cases as they are decided.  I’m Alan Mygatt-Tauber.

This week we’re discussing In re United States, a Ninth Circuit case addressing the Government’s request for a mandamus order.

Twenty-one young plaintiffs brought suit against the United States, the President, and various Executive Branch officials and agencies, alleging that they have contributed to climate change in violation of plaintiffs’ constitutional rights.  They allege the defendants have enabled and continue to enable the burning of fossil fuels, allowing an increase in greenhouse gas concentrations through several government policies.  They allege that these policies lead to climate change which is injuring and will continue to injure them.

The Government moved to dismiss the case for lack of jurisdiction and failure to state a claim.  The District Court held that the plaintiffs plausibly alleged they have Article III standing, did not raise non-justiciable political questions, and asserted plausible claims under the Due Process Clause of the Fifth Amendment.  The Court therefore ordered the parties to proceed to discovery.

Anticipating burdensome discovery, the Government moved the District Court to stay the litigation and to certify its order for interlocutory appeal.  The District Court denied both motions.

The Government sought the unusual remedy of a writ of mandamus from the Ninth Circuit Court of Appeals, seeking an order requiring the District Court to dismiss the case.

The Court of Appeals began with a recognition that “the writ of mandamus is a drastic and extraordinary remedy reserved for really extraordinary causes.”  Only exceptional circumstances, amounting to a judicial usurpation of power or a clear abuse of discretion will justify the invocation of this extraordinary remedy.

The Court looked to a five part test it had previously articulated for whether to issue a mandamus:

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.

The Court recognized that not all factors are relevant in every case and the factors may point in different directions in any one case.  The Court concluded that the defendants do not satisfy the factors here, and that the issues raised are better addressed during the ordinary course of litigation.  In reaching this conclusion, the Court examined each factor in turn.

The first factor is whether the petitioner will have no other means to obtain the desired relief.  This factor is designed to ensure that a writ of mandamus will not be issued as a substitute for appeal even though hardship may result from delay and perhaps even an unnecessary trial.  Here, the Government argued that mandamus is their only means of obtaining relief from potentially burdensome discovery.

However, the District Court has not yet issued a single discovery order, nor have the plaintiffs filed a single motion seeking to compel discovery.  Rather, the parties have engaged in the usual meet and confer process under the Federal Rules.  In fact, both sides acknowledged that they have managed to resolve a number of discovery disputes in this manner, without either seeking judicial intervention.  Indeed, plaintiffs have withdrawn a number of requests for production.

The Court went on to note that if a specific dispute arises, the defendants can challenge that specific request on the basis of privilege or relevance.  Furthermore, they can seek protective orders if necessary.

The Court held that mandamus relief is inappropriate where the party has never sought relief before the district court to resolve a discovery dispute.  The Court noted that neither it, nor the Supreme Court, had ever granted a mandamus before a party filed a motion for a protective order or prior to the issuance of a discovery order by the District Court.  Thus, absent such an order, mandamus is inappropriate.

Turning to the second factor, the Court asked whether the petitioner will be damaged or prejudiced in any way not correctable on appeal.  The petitioner must show some burden beyond the mere cost and delay that are the regrettable, but normal feature of the imperfect legal system.

Here, the Government argued that holding a trial on the claims, and allowing the District Court to potentially grant relief would threaten the separation of powers.  But the Court was not persuaded that allowing the usual legal process to proceed will have an effect in a way that would not be correctable on appeal.

To the extent the Defendants argued that the suit was inappropriate because the President himself was named as a party, the Court found the argument to be premature for two reasons: first, the Government had never sought to have the President dismissed as a party; and second, no formal discovery had been sought against the President.

To the extent the Defendants were arguing that the Government should not be burdened by the lawsuit, Congress has not chosen to exempt Executive officers and agencies from the normal rules of appellate procedure.  Sometimes, defendants will bear the burden of litigating cases that lack merit, but must wait for the normal appeals process to contest rulings against them.  The Government is a party in nearly one fifth of all civil cases filed in federal court.  Thus, it cannot rely on its status as a mere party to satisfy the high burden justifying mandamus.

While it may be true the plaintiffs’ claims are too broad to be legally sustainable, the defendants have the usual remedies before the district court, such as a motion for summary judgment or an appeal of an order denying such a motion.

The Court then looked to the third factor, whether the district court’s order is clearly erroneous as a matter of law.  Here, the Court applies a very deferential standard and will not find this factor to be met unless the reviewing court is left with the definite and firm conviction that a mistake has been committed.  In making this determination, the absence of controlling precedent weighs strongly against a finding of clear error for mandamus purposes.  Here, the defendants acknowledge that there is no controlling Ninth Circuit authority on any of the theories asserted by the plaintiffs.  Indeed, defendants had strongly argued that the claims were unprecedented.  Here, the lack of such a precedent weighs strongly against mandamus.  Additionally, the Court noted that the case was at a very early stage and the defendants have numerous opportunities to challenge the legal theories after the record is more developed.

The fourth factor is whether the District Court’s order is an oft repeated error or manifests a persistent disregard of the federal rules.  Absent controlling authority, there is no oft-repeated error, and the Government does not contend the district court violated any federal rule.

The final factor is whether the district court’s order raises new and important problems or issues of first impression.  The Court has relied on this factor when there is a novel and important question that may repeatedly evade review.

Here, there is no doubt the plaintiffs’ claims raise issues of first impression.  But here, the district court’s order denying a motion to dismiss on the pleadings does not present the possibility those issues will evade ordinary appellate review.

The Court concludes that it recognized the breadth of plaintiffs’ claims and that some of the relief sought may not be available as redress.  But it is up to the District Court to address those issues in the first instance.  Claims and remedies are often narrowed during litigation and there is no reason to assume this case will be any different.  Furthermore, Defendants are free to reassert a challenge to standing, particularly after the record is more fully developed.

Thus, the court denied, without prejudice, the Government’s motion.

In the interests of full disclosure, I need to mention that I know the District Court judge in this case.  That being said, I do not believe my personal relationship changes my view of the Appellate Court’s decision here – and, in my view, the Ninth Circuit made the correct decision.  Mandamus is an extraordinary remedy, which is reserved for special circumstances.  Here, the Court applied a familiar test and found that the Government failed to meet the test.  While there may be some disagreements as to details, overall, the decision seems quite clear – there has been, in fact, no real order to appeal in this case.  The Government argues that the discovery in this case would be too burdensome, but has failed to point to any discovery order issued by the Court that is causing a burden upon it.  This alone would seem to fatally undermine the Government’s argument here.  Coupled with the fact that the Government will have the opportunity to appeal any adverse rulings against in the normal course of appellate litigation, the need for mandamus is absent here.

And that’s our show.  Thanks so much for listening.  Links to the decision and other commentary are available in the shownotes to this episode at our website,  You can reach out by e-mail at You can like us on Facebook.  Or you can tweet thoughts and ideas to @podcastSJ.  Please remember to rate and review the podcast.  And if you like what you heard, please recommend the podcast to a friend!  See you next time for another Summary Judgment.