United States v. U.S. District Court for the District of Oregon

In its opinion denying the second petition for writ of mandamus without prejudice, the Ninth Circuit found that no new circumstances justified the second petition. The Ninth Circuit said the government had not satisfied the five factors for mandamus at this stage of the proceedings, and stated: “It remains the case that the issues that the government raises in its petition are better addressed through the ordinary course of litigation.” The Ninth Circuit rejected, among other arguments, the government’s contention that it would be prejudiced in a way not correctable on appeal because agency officials would have to answer questions on the topic of climate change. The Ninth Circuit characterized the government as arguing that answering such questions could constitute “agency decisionmaking,” which would require adherence to the requirements of the Administrative Procedure Act (APA). The Ninth Circuit said 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 Ninth Circuit also again rejected the argument that proceeding with discovery and trial would violate separation of powers. The Ninth Circuit indicated that the federal government could challenge “any specific discovery order that it believes would be unduly burdensome or would threaten the separation of powers” but that “[p]reemptively seeking a broad protective order barring all discovery does not exhaust the government’s avenues of relief.”

The Ninth Circuit Court of Appeals issued a one-page order denying the United States' emergency motion for stay of discovery and trial. The court said it would hear the petition for writ of mandamus on an expedited basis.

–

–

–