United States v. U.S. Dist. Court for the Dist. of Or. (In re United States)

895 F.3d 1101
Court of Appeals for the Ninth Circuit·Decided July 20, 2018·No. No. 18-71928·Published·Cited by 4 cases

Opinion

PER CURIAM.

*1104In 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.

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).

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:

*1105The 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).

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 , --- U.S. ----, 138 S.Ct. 443, 199 L.Ed.2d 351 (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.

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.

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United States v. U.S. Dist. Court for the Dist. of Or. (In re United States), 895 F.3d 1101 (9th Cir. 2018).

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