D.C. No. 6:15-cv-01517- AA-TC OPINION -- 1 of 11 -- IN RE UNITED STATES 2 capacity… v. United States District Court for the District of Oregon, Eugene

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE UNITED STATES OF AMERICA;
CHRISTY GOLDFUSS; MICK
MULVANEY; JOHN HOLDREN; RICK
PERRY; U.S. DEPARTMENT OF THE
INTERIOR; RYAN ZINKE; U.S.
DEPARTMENT OF TRANSPORTATION;
ELAINE L. CHAO; U.S. DEPARTMENT
OF AGRICULTURE; SONNY PERDUE;
UNITED STATES DEPARTMENT OF
COMMERCE; WILBUR ROSS; U.S.
DEPARTMENT OF DEFENSE; JAMES N.
MATTIS; 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;
MICHAEL R. POMPEO; ANDREW
WHEELER,
UNITED STATES OF AMERICA;
CHRISTY GOLDFUSS, in her official
capacity as Director of 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
No. 18-71928
D.C. No.
6:15-cv-01517-
AA-TC
OPINION

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IN RE UNITED STATES 2
capacity as Director of the Office of
Science and Technology Policy;
RICK PERRY, in his official capacity
as Secretary of Energy; UNITED
STATES DEPARTMENT OF INTERIOR;
RYAN ZINKE, in his official capacity
as Secretary of Interior; UNITED
STATES DEPARTMENT OF
TRANSPORTATION; ELAINE L. CHAO,
in her official capacity as Secretary
of Transportation; UNITED STATES
DEPARTMENT OF AGRICULTURE;
SONNY PERDUE, in his official
capacity as Secretary of Agriculture;
UNITED STATES DEPARTMENT OF
COMMERCE; WILBUR ROSS, in his
official capacity as Secretary of
Commerce; UNITED STATES
DEPARTMENT OF DEFENSE; JAMES N.
MATTIS, in his official capacity as
Secretary of Defense; UNITED
STATES DEPARTMENT OF STATE;
ANDREW WHEELER, in his official
capacity as Acting Administrator of
the EPA; MICHAEL R. POMPEO, in
his official capacity as Secretary 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

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IN RE UNITED STATES 3
official capacity as President of the
United States,
Petitioners,
v.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON,
EUGENE,
Respondent,
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

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IN RE UNITED STATES 4
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.
Petition For Writ Of Mandamus
Submitted July 19, 2018*
Filed July 20, 2018
Before: Sidney R. Thomas, Chief Judge, and Marsha S.
Berzon and Michelle T. Friedland, Circuit Judges.
Per Curiam Opinion
* The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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IN RE UNITED STATES 5
SUMMARY**
Mandamus
The panel denied without prejudice a petition for a writ of
mandamus brought by federal defendants seeking for the
second time an order directing the district court to dismiss a
case seeking environmental remedies, or, in the alternative,
to stay all discovery and trial.
The panel held that petitioners did not satisfy the five
factors identified in Bauman v. U.S. Dist. Ct., 557 F.2d 650
(9th Cir. 1977). The panel determined that the government’s
fear of burdensome or improper discovery did not warrant
mandamus relief in the absence of a single specific discovery
order. The government’s arguments as to any alleged
violation of the Administrative Procedure Act or the
separation of powers failed to establish that the government
would suffer prejudice not correctable in a future appeal. The
panel further determined that the government did not satisfy
the third, fourth, or fifth Bauman factors, as detailed in the
panel’s prior opinion denying the first mandamus petition. In
re United States, 884 F.3d at 830, 836–37 (9th Cir. 2018).
The panel concluded that no new circumstances justified the
second petition, and that the merits of the case could be
resolved by the district court or in a future appeal.
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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IN RE UNITED STATES 6
COUNSEL
Eric Grant, Deputy Assistant Attorney General; Andrew C.
Mergen and Robert J. Lundman, Attorneys; Jeffrey H. Wood,
Acting Assistant Attorney General; Environment & Natural
Resources Division, United States Department of Justice,
Washington, D.C.; for Petitioners.
Julia A. Olson, Wild Earth Advocates, Eugene, Oregon;
Philip L. Gregory, Gregory Law Group, Redwood City,
California; Andrea K. Rodgers, Law Offices of Andrea K.
Rodgers, Seattle, Washington; for Real Parties in Interest.
OPINION
PER CURIAM:
In this petition for a writ of mandamus, the government
asks us for the second time to direct the district court to
dismiss a case seeking various environmental remedies, or, in
the alternative, to stay all discovery and trial. We denied the
government’s first mandamus petition, concluding that it had
not met the high bar for relief at that stage of the litigation.
In re United States, 884 F.3d 830, 833 (9th Cir. 2018). No
new circumstances justify this second petition, and we again
decline to grant mandamus relief. The factual and procedural
history of this case was detailed in our prior opinion, and we
need not recount it here. In re United States, 884 F.3d at
833–34.

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IN RE UNITED STATES 7
I
We have jurisdiction over this mandamus petition
pursuant to the All Writs Act, 28 U.S.C. § 1651. In
considering whether to grant a writ of mandamus, we are
guided by the five factors identified in Bauman v. U.S. Dist.
Ct., 557 F.2d 650 (9th Cir. 1977):
(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.
Perry v. Schwarzenegger, 591 F.3d 1147, 1156 (9th Cir.
2010) (citing Bauman, 557 F.2d at 654–55).
“Mandamus review is at bottom discretionary—even
where the Bauman factors are satisfied, the court may deny
the petition.” San Jose Mercury News, Inc. v. U.S. Dist. Ct.,
187 F.3d 1096, 1099 (9th Cir. 1999).

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IN RE UNITED STATES 8
II
The government does not satisfy the Bauman factors at
this stage of the litigation. It remains the case that the issues
that the government raises in its petition are better addressed
through the ordinary course of litigation. We thus decline to
exercise our discretion to grant mandamus relief.
A
The government does not satisfy the first Bauman factor.
The government argues that mandamus is its only means of
obtaining relief from potentially burdensome or improper
discovery. However, the government retains the ability to
challenge any specific discovery order that it believes would
be unduly burdensome or would threaten the separation of
powers.
In our opinion denying the first mandamus petition, we
stated:
The defendants will have ample remedies if
they believe a specific discovery request from
the plaintiffs is too broad or burdensome.
Absent any discovery order from the district
court, or even any attempt to seek one,
however, the defendants have not shown that
they have no other means of obtaining relief
from burdensome or otherwise improper
discovery.
In re United States, 884 F.3d at 835 (emphasis added).

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IN RE UNITED STATES 9
Since that opinion, the government has not challenged a
single specific discovery request, and the district court has
not issued a single order compelling discovery. Instead, the
government sought a protective order barring all discovery,
which the district court denied. The government can still
challenge any specific discovery request on the basis of
privilege or relevance, or by seeking a tailored protective
order under Federal Rule of Civil Procedure 26(c). If the
government challenges a discovery request and the district
court issues an order compelling discovery, then the
government can seek mandamus relief as to that order.
Preemptively seeking a broad protective order barring all
discovery does not exhaust the government’s avenues of
relief. Absent a specific discovery order, mandamus relief
remains premature.
This fact distinguishes this case from In re United States,
138 S. Ct. 443 (2017) (per curiam), in which the Supreme
Court granted mandamus relief based on a challenge to an
order compelling discovery. In that case, the district court
had issued an order compelling the government to complete
the administrative record over the government’s objection
that it had filed a complete record properly limited to
unprivileged documents. See id. at 444. The district court
had also declined the government’s request to stay its order
until after the court resolved the government’s motion to
dismiss. Id. at 444–45. In this case, the government does not
challenge any such specific discovery order from the district
court, and the district court has already denied the
government’s motion to dismiss. The government continues
to have available means to obtain relief from improper
discovery requests. It does not satisfy the first Bauman
factor.

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IN RE UNITED STATES 10
B
Nor does the government satisfy the second Bauman
factor. The government makes two arguments for why it will
be prejudiced in a way not correctable on appeal. Neither is
persuasive.
The government argues, for the first time, that merely
eliciting answers from agency officials to questions on the
topic of climate change could constitute “agency
decisionmaking,” which the government contends could not
occur without following the elaborate procedural
requirements of the Administrative Procedure Act (“APA”).
But 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 government has made no showing that it would be
meaningfully prejudiced by engaging in discovery or trial.
This distinguishes this case from others in which we have
granted mandamus relief. See Credit Suisse v. U.S. Dist. Ct.,
130 F.3d 1342, 1346 (9th Cir. 1997) (granting mandamus
relief when a discovery order would force defendants “to
choose between being in contempt of court for failing to
comply with the district court’s order, or violating Swiss
banking secrecy and penal laws by complying with the
order”).
The government also argues that proceeding with
discovery and trial will violate the separation of powers. The
government made this argument in its first mandamus
petition, and we rejected it. In re United States, 884 F.3d at
836. As we stated in our prior opinion, allowing the usual

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IN RE UNITED STATES 11
legal processes to go forward will not threaten the separation
of powers in any way not correctable on appeal. Id. No new
circumstances disturb that conclusion.1 See United States v.
Alexander, 106 F.3d 874, 876 (9th Cir. 1997).
C
As detailed in our opinion denying the first mandamus
petition, the government does not satisfy the third, fourth, or
fifth Bauman factors. In re United States, 884 F.3d at
836–37. No new circumstances give us cause to reevaluate
these conclusions.
III
Because petitioners have not satisfied the Bauman factors,
we deny the mandamus petition without prejudice. The
government’s fear of burdensome or improper discovery does
not warrant mandamus relief in the absence of a single
specific discovery order. The government’s arguments as to
the violation of the APA and the separation of powers fail to
establish that they will suffer prejudice not correctable in a
future appeal. The merits of the case can be resolved by the
district court or in a future appeal. At this stage of the
litigation, we decline to exercise our jurisdiction to grant
mandamus relief.
PETITION DENIED WITHOUT PREJUDICE.
1 Following our previous opinion, the government moved for the first
time in the district court for judgment on the pleadings with respect to the
inclusion of the President as a named party, and a decision is pending on
that motion.

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