No. 18-505In the Supreme Court of the United StatesIN RE UNITED STATES OF AMERICA, ET AL., PETITIONERSON PETITION FOR A WRIT OF MANDAMUSTO THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF OREGONPETITION FOR A WRIT OF MANDAMUSNOEL J. FRANCISCOSolicitor GeneralCounsel of RecordJEFFREY H. WOODActing Assistant AttorneyGeneralJEFFREY B. WALLEDWIN S. KNEEDLERDeputy Solicitors GeneralERIC GRANTDeputy Assistant AttorneyGeneralJONATHAN Y. ELLISCHRISTOPHER G. MICHELAssistants to the SolicitorGeneralANDREW C. MERGENSOMMER H. ENGELSROBERT J. LUNDMANAttorneysDepartment of JusticeWashington, D.C. [email protected](202) 514-2217

QUESTIONS PRESENTEDIn 2015, plaintiffs—21 minors, an environmental advocacy organization, and a guardian purporting to represent future generations—sued the United States, thePresident, eight Executive Branch agencies, and otherfederal defendants for depriving them of an assertedright to “a climate system capable of sustaining humanlife” under the Due Process Clause of the Fifth Amendment and related legal theories. As relief, plaintiffs askthe district court to order the federal defendants to“move to swiftly phase out CO 2 emissions, as well astake such other action as necessary to ensure that atmospheric CO 2 is no more concentrated than 350 ppmby 2100, including to develop a national plan to restoreEarth’s energy balance, and implement that nationalplan so as to stabilize the climate system.” After threeyears of litigation, trial is set to begin on October 29,2018. The questions presented are as follows:1. Whether this suit is justiciable under Article III.2. Whether this suit should be dismissed for failureto comply with the requirements of the AdministrativeProcedure Act, 5 U.S.C. 551 et seq.3. Whether this suit should be dismissed becausethere is no right to “a climate system capable of sustaining human life” under the Due Process Clause or a publictrust doctrine.(I)

PARTIES TO THE PROCEEDINGPetitioners (defendants in the district court, andmandamus petitioners in the court of appeals) are theUnited States of America; Donald J. Trump, in his official capacity as the President of the United States ; Office of the President of the United States; the Directorof Council on Environmental Quality; Mick Mulvaney,in his official capacity as the Director of the Office ofManagement and Budget; the Director of the Office ofScience and Technology Policy; U.S. Department of Agriculture; Sonny Perdue, in his official capacity as theSecretary of Agriculture; U.S. Department of Commerce; Wilbur Ross, in his official capacity as the Secretary of Commerce; U.S. Department of Defense;James N. Mattis, in his official capacity as the Secretaryof Defense; U.S. Department of Energy; Rick Perry, inhis official capacity as the Secretary of Energy; U.S.Environmental Protection Agency (EPA); Andrew R.Wheeler, in his official capacity as the Acting Administrator of the EPA; U.S. Department of the Interior;Ryan Zinke, in his official capacity as the Secretary ofthe Interior; U.S. Department of State; Michael R.Pompeo, in his official capacity as the Secretary ofState; U.S. Department of Transportation; and ElaineChao, in her official capacity as the Secretary of Transportation.Respondent in this Court is the United States District Court for the District of Oregon. Respondents also On October 15, 2018, the district court dismissed PresidentTrump from the suit without prejudice. See App., infra, 77a. Thegovernment opposes that relief because the President should be dismissed with prejudice. The President accordingly joins in this petition for a writ of mandamus.(II)

IIIinclude Kelsey Cascadia Rose Juliana; Xiuhtezcatl Tonatiuh M., through his Guardian Tamara Roske-Martinez;Alexander Loznak; Jacob Lebel; Zealand B., throughhis Guardian Kimberly Pash-Bell; Avery M., throughher Guardian Holly McRae; Sahara V., through herGuardian Toña Aguilar; Kiran Isaac Oommen; Tia Marie Hatton; Isaac V., through his Guardian PamelaVergun; 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 his Guardian Sharon Baring; Aji P.,through his Guardian Helaina Piper; Levi D., throughhis Guardian Leigh-Ann Draheim; Jayden F., throughher Guardian Cherri Foytlin; Nicholas V., through hisGuardian Marie Venner; Earth Guardians, a nonprofitorganization; and future generations, through theirGuardian Dr. James Hansen (collectively plaintiffs inthe district court, and real parties in interest in thecourt of appeals).

TABLE OF CONTENTSPageOpinions below . 1Jurisdiction . 2Statement . 2Reasons for granting the petition . 13A. The government has a clear and indisputableright to relief from the district court’s refusal todismiss this fundamentally misguided suit . 161. The district court clearly and indisputablyerred by exercising jurisdiction over the suit . 162. The district court clearly and indisputablyerred by allowing the claims to proceedoutside the binding framework of the APA . 223. The district court clearly and indisputablyerred by allowing the claims to proceed on themerits . 25B. The government has no other adequate means toattain relief from a fundamentally misguided andimproper trial . 28C. Mandamus relief is appropriate under thecircumstances . 31Conclusion . 33Appendix A — District court opinion and order(Oct. 15, 2018) . 1aAppendix B — Court of appeals opinion (July 20, 2018) . 78aAppendix C — District court order (June 29, 2018) . 86aAppendix D — District court order (May 25, 2018) . 88aAppendix E — Court of appeals opinion (Mar. 7, 2018) . 91aAppendix F — District court opinion and order(Nov. 10, 2016) . 104a(V)

VITABLE OF AUTHORITIESCases:PageAbelesz v. OTP Bank, 692 F.3d 638 (7th Cir. 2012) . 32Alec L. ex rel. Loorz v. McCarthy, 561 Fed. Appx. 7(D.C. Cir. 2014), cert. denied, 135 S. Ct. 774 (2014) . 5, 28American Elec. Power Co. v. Connecticut,564 U.S. 410 (2011). 18, 19, 26Armstrong v. Exceptional Child Ctr., Inc.,135 S. Ct. 1378 (2015) . 24Cheney v. United States Dist. Court, 542 U.S. 367(2004) . passimClapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) . 17DaimlerChrysler Corp. v. Cuno, 547 U.S. 332(2006) . 16, 21, 22De Beers Consol. Mines v. United States,325 U.S. 212 (1945). 15Grupo Mexicano de Desarrollo, S.A. v. AllianceBond Fund, Inc., 527 U.S. 308 (1999) . 22Guaranty Trust Co. v. York, 326 U.S. 99 (1945) . 21Juliana v. United States, No. 15-cv-01517,2017 WL 2483705 (D. Or. June 8, 2017) . 6Justices of Supreme Court of Puerto Rico, In re,695 F.2d 17 (1st Cir. 1982) . 29, 32Kellogg Brown & Root, Inc., In re, 756 F.3d 754(D.C. Cir. 2014), cert. denied, 135 S. Ct. 1163(2015) . 29, 32Lexmark Int’l, Inc. v. Static Control Components,Inc., 572 U.S. 118 (2014) . 17Lujan v. Defenders of Wildlife, 504 U.S. 555(1992) . 17, 18, 19Lujan v. National Wildlife Fed’n, 497 U.S. 871(1990) . 23Massachusetts v. EPA, 549 U.S. 497 (2007) . 18, 20

VIICases—Continued:PageMissouri v. Jenkins, 515 U.S. 70 (1995) . 22National Audubon Soc’y v. Superior Court,658 P.2d 709 (Cal.), cert. denied, 464 U.S. 977 (1983) . 27Norton v. Southern Utah Wilderness Alliance,542 U.S. 55 (2004) . 23, 24Obergefell v. Hodges, 135 S. Ct. 2584 (2015) . 4, 26PPL Montana, LLC v. Montana, 565 U.S. 576(2012) . 5, 27Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199(2015) . 30Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) . 20Roe v. Wade, 410 U.S. 113 (1973) . 4, 27Roman Catholic Diocese of Albany, New York, Inc.,In re, 745 F.3d 30 (2d Cir. 2014) . 32Schlesinger v. Reservists Comm. to Stop the War,418 U.S. 208 (1974). 17Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) . 24Simon v. Eastern Ky. Welfare Rights Org.,426 U.S. 26 (1976) . 19Tagg Bros. & Moorhead v. United States,280 U.S. 420 (1930). 30Unemployment Comp. Comm’n v. Aragon,329 U.S. 143 (1946). 31United States, In re, 875 F.3d 1177 (9th Cir. 2017) . 12United States v. Carlo Bianchi & Co., 373 U.S. 709(1963) . 31United States v. U.S. Dist. Court, No. 18A65,2018 WL 3615551 (July 30, 2018) . passimUnited States Alkali Exp. Ass’n v. United States,325 U.S. 196 (1945). 15Vermont Agency of Natural Res. v. United Statesex rel. Stevens, 529 U.S. 765 (2000) . 21

VIIICases—Continued:PageWarth v. Seldin, 422 U.S. 490 (1975) . 18Washington v. Glucksberg, 521 U.S. 702 (1997) . 25, 26Washington Envtl. Council v. Bellon, 732 F.3d 1131(9th Cir. 2013) . 19Webster v. Doe, 486 U.S. 592 (1988) . 23Western Radio Servs. Co. v. United States ForestServ., 578 F.3d 1116 (9th Cir. 2009), cert. denied,559 U.S. 1106 (2010). 23Wilkie v. Robbins, 551 U.S. 537 (2007) . 23Wong Yang Sung v. McGrath, 339 U.S. 33 (1950) . 30Constitution and statutes:U.S. Const.:Art. I, § 1 . 31Art. I, § 1, Cl. 1 . 31Art. III . passim§ 1 . 20Amend. V . 4Due Process Clause . 2, 4, 6, 13, 25Amend. IX . 3Administrative Procedure Act, 5 U.S.C. 551 et seq. 75 U.S.C. 702 . 22, 235 U.S.C. 706(1) . 235 U.S.C. 706(2)(A)-(B) . 235 U.S.C. 706(2)(B) . 23Clean Air Act, 42 U.S.C. 7607(b)(1) . 2228 U.S.C. 1254(1) . 1528 U.S.C. 1291 . 2828 U.S.C. 1292(b) . 6, 13, 2828 U.S.C. 1651 . 15

IXMiscellaneous:Page16 Charles Alan Wright et al., Federal Practice andProcedure (3d ed. 2005 & Supp. 2018) . 29, 32

In the Supreme Court of the United StatesNo. 18-505IN RE UNITED STATES OF AMERICA, ET AL., PETITIONERSON PETITION FOR A WRIT OF MANDAMUSTO THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF OREGONPETITION FOR A WRIT OF MANDAMUSThe Solicitor General, on behalf of the United Statesand the other federal defendants, respectfully petitionsfor a writ of mandamus to the United States DistrictCourt for the District of Oregon. In the alternative, theSolicitor General respectfully requests that the Courttreat this petition as a petition for a writ of certiorari toreview the judgment of the United States Court of Appeals for the Ninth Circuit, or as a petition for a commonlaw writ of certiorari to review the district court’s decisions on the government’s dispositive motions.OPINIONS BELOWThe opinion of the district court denying a motion forjudgment on the pleadings and a motion for summaryjudgment (App., infra, 1a-77a) is not published in theFederal Supplement but is available at 2018 WL 4997032.The opinions of the court of appeals denying petitionsfor a writ of mandamus (App., infra, 78a-85a, 91a-103a)are reported at 895 F.3d 1101 and 884 F.3d 830. The opinion of the district court denying a motion to dismiss (App.,infra, 104a-200a) is reported at 217 F. Supp. 3d 1224.(1)

2JURISDICTIONThe jurisdiction of this Court is invoked under28 U.S.C. 1651. In the alternative, the jurisdiction ofthis Court is invoked under 28 U.S.C. 1254(1). The judgment of the court of appeals was entered on July 20, 2018.STATEMENT1. This suit was filed in 2015 by 21 minor children, a“tribe of young activists, artists and musicians fromacross the globe” known as Earth Guardians, and “FutureGenerations” of humans “by and through their” selfappointed guardian, Dr. James Hansen. Am. Compl.¶¶ 91-92; see id. ¶¶ 16-90. The plaintiffs (respondentshere) sued President Obama, eight Cabinet-level departments and agencies, and various other federalagencies and officials. Id. ¶¶ 98-128. President Trumpand officials in his administration were later substitutedfor President Obama and officials in his administration.Respondents allege that petitioners—and their predecessors in government dating back more than 50 yearsto President Lyndon Johnson’s administration—have“known of the unusually dangerous risks of harm to human life, liberty, and property that would be caused bycontinued fossil fuel burning,” and have “willfully ignored this impending harm.” Am. Compl. ¶ 5. Becausethe federal government has “permitted, encouraged,and otherwise enabled continued exploitation, production, and combustion of fossil fuels,” respondents allegethat petitioners have “deliberately allowed atmosphericCO2 concentrations to escalate to levels unprecedentedin human history, resulting in a dangerous destabilizingclimate system.” Ibid.Respondents allege that petitioners’ “aggregate actions and deliberate omissions” have violated their

3“substantive Fifth Amendment rights” because petitioners “directly caused atmospheric CO 2 to rise to levels that dangerously interfere with a stable climate system.” Am. Compl. ¶¶ 279, 281. Respondents further allege that petitioners have violated (1) their rights underthe equal protection principles of the Due ProcessClause by “causing irreversible climate change” andthereby failing to provide respondents “the same protection of fundamental rights afforded to prior and present generations,” id. ¶ 292; (2) their “right to be sustained by our country’s vital natural systems, includingour climate system,” which they contend is protected bythe Ninth Amendment, id. ¶ 303; and (3) their rights under a supposed federal “public trust doctrine,” ibid.Respondents seek to prove these asserted constitutional violations through a bench trial. As relief, respondents ask the district court to order the federalgovernment to “cease [its] permitting, authorizing, andsubsidizing of fossil fuels and, instead, move to swiftlyphase out CO2 emissions,” and to “take such other action as necessary to ensure that atmospheric CO 2 is nomore concentrated than 350 ppm by 2100, including todevelop a national plan to restore Earth’s energy balance, and implement that national plan so as to stabilizethe climate system.” Am. Compl. ¶ 12 (emphasis omitted). To ensure “compliance with the national remedialplan,” respondents ask the court to “[r]etain jurisdiction” indefinitely. Id. at 94.2. In November 2015, the government moved to dismiss the complaint for lack of jurisdiction and failure tostate a claim. D. Ct. Doc. 27 (Nov. 17, 2015). The district court denied that motion. App., infra, 104a-200a.While recognizing that “[t]his is no ordinary lawsuit,”

4the court found that respondents had adequately alleged the elements of Article III standing and hadstated a claim on the merits. Id. at 106a.With respect to standing, the district court concluded that respondents had adequately alleged injuriesin the form of increased droughts, wildfires, flooding,and other effects of climate change, and that those injuries were caused by the government’s regulation of (andfailure to further regulate) fossil fuels. App., infra,125a-134a. The court further concluded that it could redress respondents’ alleged injuries by granting the relief sought, including ordering the federal government“to cease [its] permitting, authorizing, and subsidizingof fossil fuels and, instead, move to swiftly phase outCO2 emissions” and to “take such other action necessaryto ensure that atmospheric CO2 is no more concentratedthan 350 ppm by 2100, including to develop a nationalplan to restore Earth’s energy balance, and implementthat national plan so as to stabilize the climate system.”Id. at 137a (citation omitted); see id. at 134a-137a.On the merits, the district court concluded that respondents had stated a claim under the Fifth Amendment’s Due Process Clause. App., infra, 137a-147a. Relying primarily on this Court’s decision in Obergefell v.Hodges, 135 S. Ct. 2584 (2015), as well as Roe v. Wade,410 U.S. 113 (1973), and a 1993 decision from the Supreme Court of the Philippines, the district court foundin the Fifth Amendment’s protection against the deprivation of “life, liberty, or property, without due processof law,” U.S. Const. Amend. V, a previously unrecognized “fundamental right * * * to a climate system capable of sustaining human life.” App., infra, 142a; seeid. at 140a-142a.

5The district court further determined that respondents had adequately stated a claim under a federal publictrust theory. App., infra, 147a-167a. The court acknowledged this Court’s statement that “the public trust doctrine remains a matter of state law,” PPL Montana,LLC v. Montana, 565 U.S. 576, 603 (2012), as well as theD.C. Circuit’s rejection of a federal public-trust doctrine, see Alec L. ex rel. Loorz v. McCarthy, 561 Fed.Appx. 7, 8 (per curiam), cert. denied, 135 S. Ct. 774(2014). But the court nevertheless concluded that apublic-trust doctrine imposes a judicially enforceableprohibition on the federal government against “depriving a future legislature of the natural resources necessary to provide for the well-being and survival of its citizens.” App., infra, 148a (citation omitted).The district court acknowledged the government’sarguments that “recognizing [respondents’] standing tosue, deeming the controversy justiciable, and recognizing a federal public trust and a fundamental right to aclimate system capable of sustaining human life wouldbe unprecedented,” but rejected the premise that theunprecedented nature of those decisions “alone requires * * * dismissal.” App., infra, 167a. The courtexpressed its view that “[f ]ederal courts too often havebeen cautious and overly deferential in the arena of environmental law, and the world has suffered for it.” 167a-168a. The court invoked the “failure of the legalsystem to protect humanity from the collapse of finitenatural resources by the uncontrolled pursuit of shortterm profits,” and stated that the “third branch can, andshould, take another long and careful look at the barriers to litigation created by modern doctrines of subjectmatter jurisdiction and deference to the legislative andadministrative branches.” Id. at 168a (citation omitted).

6The district court subsequently declined the government’s request to certify its decision denying the motionto dismiss for interlocutory appeal under 28 U.S.C.1292(b). See Juliana v. United States, No. 15-cv-1517,2017 WL 2483705, at *2 (June 8, 2017).3. The government petitioned the Ninth Circuit fora writ of mandamus ordering dismissal of the suit. Thegovernment contended that allowing respondents’claims to proceed contravened fundamental limitationson judicial review imposed by Article III of the Constitution, and that the district court had clearly erred inrecognizing a sweeping new fundamental right to certain climate conditions under the Due Process Clauseand a federal public-trust theory. The government further requested a stay of the litigation pending the courtof appeals’ consideration of the mandamus petition.On July 25, 2017, the court of appeals granted thegovernment’s request for a stay. See App., infra, 7a-8a,94a. But after considering the petition for nearly eightmore months, the court in March 2018 “decline[d] to exercise [its] discretion to grant mandamus relief at th[at]stage of the litigation.” Id. at 103a; see id. at 91a-103a.The court recognized that “some of [respondents’]claims as currently pleaded are quite broad, and someof the remedies [respondents] seek may not be availableas redress.” Id. at 103a. The court reasoned, however,that “the district court need[ed] to consider those issuesfurther in the first instance.” Ibid. The court “underscore[d] that this case [wa]s at a very early stage, andthat the [government] [would] have ample opportunityto raise legal challenges to decisions made by the district court on a more fully developed record, includingdecisions as to whether to focus the litigation on specificgovernmental decisions and orders.” Id. at 101a. The

7court also observed that “[c]laims and remedies oftenare vastly narrowed as litigation proceeds” and that ithad “no reason to assume this case will be any different.”Id. at 103a. And the court stated that the governmentaldefendants could continue to “raise and litigate any legal objections they have,” including by challenging future discovery orders; moving to “dismiss the Presidentas a party”; “reasserting a challenge to standing, particularly as to redressability”; “seeking mandamus in the future”; or “asking the district court to certify orders for interlocutory appeal of later rulings.” Id. at 99a, 101a-103a.4. The government did not immediately seek thisCourt’s review. Instead, in light of the court of appeals’identification of various means by which the government could contest the suit, the government filed a series of motions in the district court seeking to terminatethe case or at least narrow respondents’ claims.First, the government filed a motion for judgment onthe pleadings, reiterating its prior arguments for dismissal and setting forth three new grounds for dismissing some or all of respondents’ claims: (1) the Presidentmust be dismissed because the court lacks jurisdictionto enjoin him in the performance of his official duties;(2) respondents’ claims must be dismissed because theAdministrative Procedure Act (APA), 5 U.S.C. 551et seq., provides the mechanism for challenging the federal administrative actions that underlie respondents’claims, but respondents fail to challenge discrete, identified agency actions or alleged failures to act, as theAPA requires; and (3) in any event, respondents’ claimsand requested relief violate the constitutional separation of powers by effectively requiring the district courtto usurp the roles of Congress and the President. D. Ct.Doc. 195, at 6-25 (May 9, 2018).

8Second, the government filed a motion for a protective order barring all discovery. D. Ct. Doc. 196 (May9, 2018). The government argued that, because thiscase may proceed only under the APA, judicial reviewmust be based on the administrative record of specifically identified actions or decisions, not on discovery.Id. at 9-14. The government also contended that, evenif review were not otherwise limited to the administrative record of specific agency actions, discovery in thiscase would be independently barred by the proceduralrequirements that the APA and the agencies’ organicstatutes impose on agency fact-finding and decisionmaking (including the requirements for public participation) and the separation of powers. Id. at 14-19.Third, the government filed a motion for summaryjudgment, arguing that (1) respondents lack standing asa matter of law and as judged against the evidentiaryrecord, and the suit is not a proper case or controversywithin the meaning of Article III; (2) respondents havefailed to identify a right of action for their claims apartfrom the APA and have not satisfied the APA’s requirement to challenge discrete agency actions or inactions;and (3) respondents’ claims fail on the merits. D. Ct.Doc. 207, at 5-19, 24-30 (May 22, 2018).5. On May 25, 2018, the magistrate judge denied thegovernment’s motion for a protective order. App., infra,88a-90a. He rejected the government’s argument thatany challenges to the agencies’ actions or failures to actmust proceed under the APA, concluding that respondents may proceed in a sweeping manner against all federal defendants collectively because their claims are“based on alleged violations of their constitutionalrights.” Id. at 89a. He also declined to grant a protec-

9tive order based on the separation of powers, ruling instead that “[s]hould a specific discovery request ariseduring discovery in this case that implicates a claim ofprivilege the government wishes to assert, the government may file a motion for a protective order directedat any such specific request.” Id. at 90a.The district court summarily affirmed the magistrate judge’s order. App., infra, 86a-87a. The courtstated that it had “carefully reviewed [the] order in lightof [the government’s] objections” and “conclude[d] thatthe order is not clearly erroneous or contrary to law.”Id. at 87a. The court provided no further explanationfor its decision and declined “to certify [its] decision forinterlocutory appeal under 28 U.S.C. § 1292(b).” Ibid.The district court set an opening trial date of October 29, 2018. See D. Ct. Doc. 189 (Mar. 26, 2018); D. Ct.Doc. 192 (Apr. 12, 2018). The court indicated its expectation that the trial will last approximately 50 trial days.See, e.g., 4/12/18 Tr. 8 (Coffin, J.) (estimating “five weeksper side in essence”). And the court has repeatedlymade clear that it has no intention of delaying trial. See,e.g., 10/4/18 Tr. 19 (Coffin, J.) (“Th[e] trial date of October 29th is a firm trial date and will not be changed unless changed by order of an appellate court or the Supreme Court.”); 5/23/18 Tr. 17 (Aiken, J.) (“[W]e havegot a trial date and we are moving forward.”); 5/10/18Tr. 27 (Coffin, J.) (“October 29, 2018, trial starts unlesssome higher court says no.”).6. On July 5, 2018, the government again petitionedthe Ninth Circuit for a writ of mandamus. The government explained that, in an effort to terminate or narrowthis case, it had taken every step that the Ninth Circuithad contemplated in its prior decision. And yet the district court was moving forward with discovery and an

10impending trial without narrowing the claims in any respect. The government accordingly asked the NinthCircuit to order dismissal of this case, or, at a minimum,to direct the district court to stay all discovery and trialpending the resolution of the government’s dispositivemotions, and to consider certifying for interlocutory appeal any rulings on those motions.On July 20, 2018, the court of appeals denied the government’s mandamus petition without prejudice. App.,infra, 78a-85a. The court noted that “the governmenthas not challenged a single specific discovery request,”and the “government retains the ability to challengeany specific discovery order that it believes would beunduly burdensome or would threaten the separation ofpowers.” Id. at 81a-82a. The court further rejected thegovernment’s separation-of-powers argument, statingthat “allowing the usual legal processes to go forwardwill not threaten the separation of powers in any waynot correctable on appeal.” Id. at 84a. The court deniedthe “mandamus petition without prejudice,” adding thatthe “merits of the case can be resolved by the districtcourt or in a future appeal.” Id. at 85a.7. While its second mandamus petition was pendingbefore the court of appeals, the government filed a stayapplication in this Court. The government asked thisCourt to stay discovery and trial pending the Ninth Circuit’s consideration of the mandamus petition. As an alternative, the government noted that the Court coulddirect dismissal of the c

treat this petition as a petition for a writ of certiorari to review the judgment of the United States Court of Ap-peals for the Ninth Circuit, or as a petition for a common-law writ of certiorari to review the district court's deci-sions on the government's dispositive motions. OPINIONS BELOW