On March 7, 2018, a three-judge panel of the Ninth U.S. Circuit Court of Appeals declined to grant the defendants’ petition for a writ of mandamus in the climate change suit Juliana v. United States. The government defendants asked the district court to dismiss the suit and sought mandamus relief when the district court denied the motion to dismiss.

The Juliana plaintiffs filed suit in August 2015, alleging that the federal government violated the equal protection provisions of the Fourteenth Amendment and the plaintiffs’ Fifth Amendment substantive due process rights by depriving them of their life, liberty, and property by not adequately addressing climate change. According to the plaintiffs, the government approved and promoted fossil fuel development, causing an increase in atmospheric carbon dioxide levels, which destabilized the climate, and thereby knowingly endangered the plaintiffs’ health and welfare. Defendants sought to have the court dismiss the case because it seeks climate change relief on theories that are without precedent and may result in extensive and burdensome discovery.

In November 2016, the district court denied the defendants’ motion to dismiss the case for failure to state a claim and lack of jurisdiction. The district court held that “the plaintiffs plausibly alleged they had Article III standing, did not raise non-justiciable political questions, and asserted plausible claims under the Due Process Clause of the Fifth Amendment.”1 In March 2017, the defendants asked the district court to stay the litigation and certify an interlocutory appeal. In May 2017, the magistrate judge denied the motion to stay the case and recommended that the district court deny the motion to certify an appeal. One result of the denial of the stay was that the case proceeded to discovery. After the magistrate denied the stay, industry intervenors began to ask the court to allow them to withdraw from the case to avoid the burdens of discovery. On June 8, 2017, the district court adopted the magistrate’s judge’s recommendations, denied the defendants’ motion to certify interlocutory appeals, and reiterated the denial of a stay.

On June 9, 2017, the defendants petitioned the Ninth Circuit for a writ of mandamus, asking the appellate court to stay proceedings in the district court and direct the district court to dismiss the case. Defendants argued that the writ of mandamus was appropriate because, among other things, the district court’s denial of defendants’ motion to dismiss was based on clear error, mandamus was warranted to confine the district court to its lawful jurisdiction, and mandamus was defendants’ only means of obtaining relief from onerous and disruptive discovery. In July 2017, the Ninth Circuit granted the defendants’ request to stay the district court proceedings and held oral argument in December 2017. On March 7, 2018, it issued its opinion.

The Ninth Circuit noted that mandamus is an extraordinary remedy available only in “exceptional circumstances.” The Ninth Circuit considered five factors when evaluating the petition: (1) Whether the petitioner has other means 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 often-repeated error or shows 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 considered and rejected each of the five reasons for mandamus relief.

The court concluded that the issues raised in the petition “are better addressed through the ordinary course of litigation.” Petitioners argued that allowing the case to proceed would result in burdensome discovery. The Ninth Circuit concluded that the district court had not issued a single discovery order and the plaintiffs had not filed a single motion seeking to compel discovery. As a result, the appellate court wrote, the defendants would have ample remedies before the district court if the plaintiffs’ discovery requests were too broad or burdensome. The appellate court further noted that lack of controlling Ninth Circuit precedent on the plaintiffs’ novel, unestablished legal theories weighed strongly against a finding of clear error or an often-repeated legal error.

The Ninth Circuit concluded that for mandamus to be appropriate based on damage or prejudice not correctable on appeal, a petitioner must show a serious level of prejudice that would include, for example, situations where a claim would be obviously moot by the time an appeal was possible or in which the petitioner would not have the ability to appeal. The Ninth Circuit addressed petitioners’ argument that the government should not be burdened by a non-meritorious lawsuit. It wrote that the United States is a defendant in nearly one-fifth of the civil cases filed in federal court, Congress has not exempted the government from the normal rules of appellate procedure, and that defendants in general incur the burden of litigating cases that lack merit but still must wait for the normal appeals process to contest rulings. The Ninth Circuit said that the defendants in Juliana would still have the usual remedies before the district court for non-meritorious litigation, and any merits errors could be corrected through the ordinary course of litigation. As a result, the Ninth Circuit concluded petitioners did not demonstrate a need for mandamus.

The Ninth Circuit’s decision to deny the petition for a writ of mandamus will allow the discovery process in Juliana to continue before the district court. This is a significant development for the defendants because plaintiffs’ claims are pled broadly and cover a wide range of government efforts over the course of many decades. While the plaintiffs have withdrawn a number of discovery requests, their litigation hold notice demanded defendants preserve, among other things, “all documents related to national energy policies or systems, including fossil fuels and alternative energy sources and transportation,” and “all documents related to federal public lands, navigable waters, territorial waters, navigable air space or atmosphere.”

The defendants’ petition for a writ of mandamus characterized the plaintiffs’ discovery demands as “directed at the entire course of federal decision-making” including “sensitive internal workings of the Office of the President reaching as far back as the Administration of President Lyndon Johnson.” Indeed, the district court released the industry intervenors from the case in part because, according to the court, they “reconsidered their desire to participate further with the attendant burdens of discovery and trial.” The defendants now face the task of persuading the district court to limit the scope of discovery so that it is not burdensome or does not result in the public release of sensitive information. The plaintiffs’ preservation requests suggest they may seek an extraordinary range of information from defendants that could go far beyond the plaintiffs’ allegations of particularized harm that they allege is fairly traceable to the defendants’ challenged conduct, which is the basis for the plaintiffs’ standing to bring suit.