                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


IN RE UNITED STATES OF AMERICA,         No. 17-71692

                                           D.C. No.
UNITED STATES OF AMERICA;               6:15-cv-01517-
CHRISTY GOLDFUSS, in her official           TC-AA
capacity as Director of the Council
on Environmental Quality; MICK
MULVANEY, in his official capacity        OPINION
as Director of the Office of
Management and Budget; JOHN
HOLDREN, DR., in his official
capacity as Director of the Office of
Science and Technology Policy;
RICK PERRY, in his official capacity
as Secretary of Energy; U.S.
DEPARTMENT OF THE INTERIOR;
RYAN ZINKE, in his official capacity
as Secretary of Interior; U.S.
DEPARTMENT OF TRANSPORTATION;
ELAINE CHAO, in her official
capacity as Secretary of
Transportation; U.S. DEPARTMENT
OF AGRICULTURE; SONNY PERDUE,
in his official capacity as Secretary
of Agriculture; U.S. DEPARTMENT OF
COMMERCE; WILBUR ROSS, in his
official capacity as Secretary of
Commerce; U.S. DEPARTMENT OF
DEFENSE; JIM MATTIS, in his official
2           IN RE UNITED STATES OF AMERICA

capacity as Secretary of Defense;
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, in his official capacity as
President of the United States; THE
NATIONAL ASSOCIATION OF
MANUFACTURERS; AMERICAN FUEL
& PETROCHEMICAL
MANUFACTURERS; AMERICAN
PETROLEUM INSTITUTE,
                           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
           IN RE UNITED STATES OF AMERICA            3

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
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.


      Appeal from the United States District Court
               for the District of Oregon
        Ann L. Aiken, District Judge, Presiding

       Argued and Submitted December 11, 2017
               San Francisco, California

                   Filed March 7, 2018
4              IN RE UNITED STATES OF AMERICA

    Before: Sidney R. Thomas, Chief Judge, and Marsha S.
      Berzon and Michelle T. Friedland, Circuit Judges.*

                 Opinion by Chief Judge Thomas


                            SUMMARY**


                             Mandamus

    The panel denied without prejudice a petition for a writ of
mandamus in which federal defendants sought an order
directing the district court to dismiss a case seeking various
environmental remedies.

    Twenty-one plaintiffs brought suit against defendants –
the United States, and federal agencies and officials –
alleging that the defendants contributed to climate change in
violation of the plaintiffs’ constitutional rights. The
defendants argued that allowing the case to proceed would
result in burdensome discovery obligations on the federal
government that would threaten the separation of powers.

    The panel held that the defendants did not satisfy the five
factors in Bauman v. U.S. Dist. Ct., 557 F.2d 650 (9th Cir.


     *
      Following the retirement of Judge Kozinski, Judge Friedland was
randomly drawn to replace him on the panel. She has read the briefs,
reviewed the record, and watched a video recording of the oral argument
held on December 11, 2017.
    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
             IN RE UNITED STATES OF AMERICA                    5

1977), at this stage of the litigation. Specifically, the panel
held that mandamus relief was inappropriate where the
district court had not issued a single discovery order, nor had
the plaintiffs filed a single motion seeking to compel
discovery. The panel also held that any merits errors were
correctable through the ordinary course of litigation. The
panel further held that there was no controlling Ninth Circuit
authority on any of the theories asserted by plaintiffs, and this
weighed strongly against a finding of clear error for
mandamus purposes. Finally, the panel held that district
court’s order denying a motion to dismiss on the pleadings
did not present the possibility that the issue of first
impression raised by the case would evade appellate review.
The panel concluded that the issues that the defendants raised
on mandamus were better addressed through the ordinary
course of litigation.


                         COUNSEL

Eric Grant (argued), Deputy Assistant Attorney General;
Andrew C. Mergen, David C. Shilton, and Robert J.
Lundman, Appellate Section; Jeffrey H. Wood, Acting
Assistant Attorney General; Environment & Natural
Resources Division, United States Department of Justice,
Washington, D.C.; for Petitioners.

Julia Ann Olson (argued), Wild Earth Advocates, Eugene,
Oregon; Philip L. Gregory, Cotchett Pitre & McCarthy LLP,
Burlingame, California; for Real Parties in Interest.

William John Snape III and David Hunter, American
University, Washington College of Law, Washington, D.C.,
6           IN RE UNITED STATES OF AMERICA

for Amici Curiae Center for International Environmental Law
and Environmental Law Alliance Worldwide—US.

David Bookbinder, Niskanen Center, Washington, D.C., for
Amicus Curiae Niskanen Center.

Courtney B. Johnson, Crag Law Center, Portland, Oregon, for
Amici Curiae League of Women Voters of the United States
and League of Women Voters of Oregon.

Sarah H. Burt, Earthjustice, San Francisco, California; Patti
Goldman, Earthjustice, Seattle, Washington; for Amicus
Curiae EarthRights International, Center for Biological
Diversity, Defenders of Wildlife, and Union of Concerned
Scientists.

James R. May and Erin Daly, Dignity Rights Project,
Widener University, Delaware Law School, Wilmington,
Delaware; Rachael Paschal Osborn, Vashon, Washington; for
Amici Curiae Law Professors.

Joanne Spalding, Sierra Club, Oakland, California; Alejandra
Nuñez and Andres Restrepo, Sierra Club, Washington, D.C.;
for Amicus Curiae Sierra Club.

Charles M. Tebbutt, Law Offices of Charles M. Tebbutt P.C.,
Eugene, Oregon, for Amici Curiae Global Catholic Climate
Movement; Leadership Conference of Women Religious;
Interfaith Power and Light; The Sisters of Mercy of the
Americas’ Institute Leadership Team; Sisters of Mercy
Northeast Leadership Team; Interfaith Moral Action on
Climate; Franciscan Action Network; The National Religious
Coalition for Creation Care and Interfaith Oceans; The Faith
Alliance for Climate Solutions; Eco-Justice Ministries; San
             IN RE UNITED STATES OF AMERICA                    7

Francisco Zen Center; The Shalom Center; GreenFaith; The
Office of Apostolic Action & Advocacy; Christian life
Community-USA; and Quaker Earthcare Witness.

Zachary B. Corrigan, Food & Water Watch Inc., Washington,
D.C., for Amici Curiae Food & Water Watch Inc., Friends of
the Earth—US, and Greenpeace Inc.


                          OPINION

THOMAS, Chief Judge:

    In this petition for a writ of mandamus, the defendants ask
us to direct the district court to dismiss a case seeking various
environmental remedies. The defendants argue that allowing
the case to proceed will result in burdensome discovery
obligations on the federal government that will threaten the
separation of powers. We have jurisdiction over this petition
pursuant to the All Writs Act, 28 U.S.C. § 1651. Because the
defendants have not met the high bar for mandamus relief, we
deny the petition.

                                I

    Twenty-one young plaintiffs brought suit against the
United States, the President, and various Executive Branch
officials and agencies, alleging that the defendants have
contributed to climate change in violation of the plaintiffs’
constitutional rights. They allege that the defendants have
known for decades that carbon dioxide emissions from the
burning of fossil fuels destabilize the climate. The plaintiffs
aver that the defendants have nevertheless enabled and
continue to enable, through various government policies, the
8            IN RE UNITED STATES OF AMERICA

burning of fossil fuels, allowing atmospheric carbon dioxide
concentrations to reach historically unprecedented levels.
They allege that climate change is injuring them and will
continue to injure them. The plaintiffs claim that, in light of
these facts, the defendants have violated their constitutional
rights.

    The defendants moved to dismiss the suit for lack of
jurisdiction and for failure to state a claim. The district court
denied the motion. The court held that the plaintiffs plausibly
alleged that they have Article III standing, did not raise non-
justiciable political questions, and asserted plausible claims
under the Due Process Clause of the Fifth Amendment.

     The defendants moved the district court to stay the
litigation and to certify its order for interlocutory appeal
pursuant to 28 U.S.C. § 1292(b). The district court denied the
motions. Anticipating burdensome discovery, the defendants
petitioned this Court for a writ of mandamus and requested a
stay of the litigation. In their petition, the defendants ask that
we direct the district court to dismiss the case. We granted
the request for a stay and now consider the petition.

                                II

    “The writ of mandamus is a drastic and extraordinary
remedy reserved for really extraordinary causes.” In re Van
Dusen, 654 F.3d 838, 840 (9th Cir. 2011) (quoting Ex parte
Fahey, 332 U.S. 258, 259–60 (1947)) (internal quotation
marks omitted).         “[O]nly exceptional circumstances
amounting to a judicial usurpation of power or a clear abuse
of discretion will justify the invocation of this extraordinary
remedy.” Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380 (2004)
(internal quotation marks and citations omitted). In
             IN RE UNITED STATES OF AMERICA                   9

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). “All factors are
not relevant in every case and the factors may point in
different directions in any one case.” Christensen v. U.S.
Dist. Ct., 844 F.2d 694, 697 (9th Cir. 1988).

                               III

    The defendants do not satisfy the Bauman factors at this
stage of the litigation. The issues that the defendants raise on
mandamus are better addressed through the ordinary course
10           IN RE UNITED STATES OF AMERICA

of litigation. We therefore decline to exercise our discretion
to grant mandamus relief. See San Jose Mercury News, Inc.
v. U.S. Dist. Ct., 187 F.3d 1096, 1099 (9th Cir. 1999)
(“Mandamus review is at bottom discretionary—even where
[all] the Bauman factors are satisfied, the court may deny the
petition.”).

                               A

   The first Bauman factor is whether the petitioner will
“ha[ve] no other means . . . to obtain the desired relief.”
Perry, 591 F.3d at 1156. This factor ensures that a writ of
mandamus will not “be used as a substitute for appeal even
though hardship may result from delay and perhaps
unnecessary trial.” Schlagenhauf v. Holder, 379 U.S. 104,
110 (1964) (internal citation omitted). Here, the defendants
argue that mandamus is their only means of obtaining relief
from potentially burdensome discovery.

    The defendants’ argument fails because the district court
has not issued a single discovery order, nor have the plaintiffs
filed a single motion seeking to compel discovery. Rather,
the parties have employed the usual meet-and-confer process
of resolving discovery disputes. See Fed. R. Civ. P. 37(a)(1).
Indeed, both sides have submitted declarations attesting that
they have thus far resolved a number of discovery disputes
without either side asking the district court for an order.
Indeed, the plaintiffs have withdrawn a number of requests
for production.        The defendants rely on informal
communications as to the scope of discovery—in particular,
the plaintiffs’ litigation hold and demand letter—but the
plaintiffs have clarified that these communications were not
discovery requests.
             IN RE UNITED STATES OF AMERICA                   11

    If a specific discovery dispute arises, the defendants can
challenge that specific discovery request on the basis of
privilege or relevance. See McDaniel v. U.S. Dist. Ct.,
127 F.3d 886, 888–89 (9th Cir. 1997) (per curiam) (holding
that mandamus “is not the State’s only adequate means of
relief” from burdensome discovery because, “as discovery
proceeds, the State is not foreclosed from making routine
challenges to specific discovery requests on the basis of
privilege or relevance”). In addition, the defendants can seek
protective orders, as appropriate, under Federal Rule of Civil
Procedure 26(c).

    Mandamus relief is inappropriate where the party has
never sought relief before the district court to resolve a
discovery dispute. As we have noted, “courts of appeals
cannot afford to become involved with the daily details of
discovery.” In re Anonymous Online Speakers, 661 F.3d
1168, 1173 (9th Cir. 2011) (quoting Perry, 591 F.3d at 1157).
Rather, we have only granted mandamus relief to review
discovery orders in exceptional circumstances. Id. And
neither we nor the Supreme Court have ever done so before
a party has filed a motion for a protective order in the district
court or prior to the issuance of a discovery order by the
district court. 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.

   The defendants rely on two cases in which a writ of
mandamus issued because of alleged discovery burdens:
Cheney, and Credit Suisse v. U.S. Dist. Ct., 130 F.3d 1342
12             IN RE UNITED STATES OF AMERICA

(9th Cir. 1997). In both cases, the district courts had issued
orders compelling document production. Cheney, 542 U.S.
at 376, 379 (defendant moved for a protective order, but
district court issued order allowing discovery to proceed);
Credit Suisse, 130 F.3d at 1346 (district court issued order
compelling defendants to respond to discovery requests).1

    Absent any district court order concerning discovery,
mandamus relief is inappropriate. If the defendants become
aggrieved by a future discovery order, they can seek
mandamus relief as to that order. But their current request for
mandamus relief is entirely premature. The defendants have
not satisfied the first Bauman factor.

                                   B

    The second Bauman factor is whether the petitioner “will
be damaged or prejudiced in any way not correctable on
appeal.” Perry, 591 F.3d at 1156. To satisfy this factor, the
defendants “must demonstrate some burden . . . other than the
mere cost and delay that are the regrettable, yet normal,
features of our imperfect legal system.” DeGeorge v. U.S.
Dist. Ct., 219 F.3d 930, 935 (9th Cir. 2000) (alteration in
original) (quoting Calderon v. U.S. Dist. Ct., 163 F.3d 530,
535 (9th Cir. 1998) (en banc)). Prejudice serious enough to
warrant mandamus relief “includes situations in which one’s

     1
      The defendants also raised, via a letter filed after argument, the
Supreme Court’s recent summary disposition in an appeal challenging a
discovery order. See In re United States, 138 S. Ct. 443 (2017). When the
government filed a petition for mandamus in that case, the district court
had compelled the government to complete the administrative record over
the government’s opposition that the administrative record was already
complete and had deferred ruling on the defendants’ earlier motion to
dismiss. Neither circumstance exists here.
             IN RE UNITED STATES OF AMERICA                  13

‘claim will obviously be moot by the time an appeal is
possible,’ or in which one ‘will not have the ability to
appeal.’” Id. (quoting Calderon, 163 F.3d at 535).

    The defendants argue that holding a trial on the plaintiffs’
claims and allowing the district court potentially to grant
relief would threaten the separation of powers. We are not
persuaded that simply allowing the usual legal processes to
go forward will have that effect in a way not correctable on
appellate review.

    First, to the extent the defendants argue that the President
himself has been named as a defendant unnecessarily and that
defending this litigation would unreasonably burden him, this
argument is premature because the defendants never moved
in the district court to dismiss the President as a party. See
United States v. U.S. Dist. Ct., 384 F.3d 1202, 1205 (9th Cir.
2004) (explaining that there is no injustice from declining to
consider a new issue on mandamus review because a
petitioner may still be able to raise the issue below). Nor has
any formal discovery been sought against the President.

    To the extent that the defendants are arguing that
executive branch officials and agencies in general should not
be burdened by this lawsuit, Congress has not exempted the
government from the normal rules of appellate procedure,
which anticipate that sometimes defendants will incur
burdens of litigating cases that lack merit but still must wait
for the normal appeals process to contest rulings against
them. The United States is a defendant in close to one-fifth
14             IN RE UNITED STATES OF AMERICA

of the civil cases filed in federal court.2 The government
cannot satisfy the burden requirement for mandamus simply
because it, or its officials or agencies, is a defendant.

     Distilled to its essence, the defendants’ argument is that
it is a burden to defend against the plaintiffs’ claims, which
they contend are too broad to be legally sustainable. That
well may be. But, as noted, litigation burdens are part of our
legal system, and the defendants still have the usual remedies
before the district court for nonmeritorious litigation, for
example, seeking summary judgment on the claims. And if
relief is not forthcoming, any legal error can be remedied on
appeal. “The first two criteria articulated in Bauman are
designed to insure that mandamus, rather than some other
form of relief, is the appropriate remedy.” In re Cement
Antitrust Litig. (MDL No. 296), 688 F.2d 1297, 1301 (9th Cir.
1982), aff’d sub nom. Arizona v. U.S. Dist. Ct., 459 U.S. 1191
(1983) (mem.). Because the merits errors now asserted are
correctable through the ordinary course of litigation, the
defendants have not satisfied the second Bauman factor.

                                    C

    The third Bauman factor is whether the district court’s
order “is clearly erroneous as a matter of law.” Perry,
591 F.3d at 1156. Our review of this factor “is significantly
deferential and [this factor] is not met unless the reviewing
court is left with a definite and firm conviction that a mistake


     2
        See U.S. Courts, Federal Judicial Caseload Statistics 2017,
http://www.uscourts.gov/statistics-reports/federal-judicial-caseload-
statistics-2017 (last visited Feb. 14, 2018) (The United States was a
defendant in 56,987 of the 292,076 civil cases filed in federal court in the
12-month period ending March 31, 2017.).
             IN RE UNITED STATES OF AMERICA                 15

has been committed.” In re Bundy, 840 F.3d 1034, 1041 (9th
Cir. 2016) (quoting In re United States, 791 F.3d 945, 955
(9th Cir. 2015)).

    “The absence of controlling precedent weighs strongly
against a finding of clear error [for mandamus purposes].” In
re Van Dusen, 654 F.3d 838, 845 (9th Cir. 2011). Here, the
defendants concede that there is no controlling Ninth Circuit
authority on any of the theories asserted by the plaintiffs.
Indeed, the defendants strongly argue that the theories are
unprecedented. Thus, the absence of controlling precedent in
this case weighs strongly against a finding of clear error. Id.

    We also underscore that this case is at a very early stage,
and that the defendants have ample opportunity to raise legal
challenges to decisions made by the district court on a more
fully developed record, including decisions as to whether to
focus the litigation on specific governmental decisions and
orders. Once the litigation proceeds, the defendants will have
ample opportunity to raise and litigate any legal objections
they have.

     However, absent controlling precedent, we decline to
exercise our discretion to intervene at this stage of the
litigation to review preliminary legal decisions made by the
district court or otherwise opine on the merits.

                              D

    The fourth Bauman factor is whether the district court’s
order is “an oft repeated error or manifests a persistent
disregard of the federal rules.” Perry, 591 F.3d at 1156.
Absent controlling authority, there is no “oft-repeated error”
in this case, In re Swift Transp. Co., 830 F.3d at 917, and the
16           IN RE UNITED STATES OF AMERICA

defendants do not contend that the district court violated any
federal rule. The defendants do not satisfy the fourth factor.

                                E

    The final factor is whether the district court’s order
“raises new and important problems or issues of first
impression.” Perry, 591 F.3d at 1156. In general, we have
relied upon this factor when there is a “novel and important
question” that “may repeatedly evade review.” Id. at 1159;
see also In re Cement Antitrust Litig., 688 F.2d at 1304–05
(“[A]n important question of first impression will evade
review unless it is considered under our supervisory
mandamus authority. Moreover, that question may continue
to evade review in other cases as well.”).

    There is little doubt that the legal theories asserted in this
case raise issues of first impression. But the district court’s
order denying a motion to dismiss on the pleadings—which
is all that has happened thus far—does not present the
possibility that those issues will evade appellate review. The
defendants have not satisfied the fifth Bauman factor.

                               IV

     There is enduring value in the orderly administration of
litigation by the trial courts, free of needless appellate
interference. In turn, appellate review is aided by a
developed record and full consideration of issues by the trial
courts. If appellate review could be invoked whenever a
district court denied a motion to dismiss, we would be
quickly overwhelmed with such requests, and the resolution
of cases would be unnecessarily delayed.
             IN RE UNITED STATES OF AMERICA                    17

     We are mindful that some of the plaintiffs’ claims as
currently pleaded are quite broad, and some of the remedies
the plaintiffs seek may not be available as redress. However,
the district court needs to consider those issues further in the
first instance. Claims and remedies often are vastly narrowed
as litigation proceeds; we have no reason to assume this case
will be any different. Nor would the defendants be precluded
from reasserting a challenge to standing, particularly as to
redressability, once the record is more fully developed, or
from seeking mandamus in the future, if circumstances justify
it. And the defendants retain the option of asking the district
court to certify orders for interlocutory appeal of later rulings,
pursuant to 28 U.S.C. § 1292(b).

    Because petitioners have not satisfied the Bauman factors,
we deny the petition without prejudice. Absent any discovery
order, the mandamus petition is premature insofar as it is
premised on a fear of burdensome discovery. The issues
pertaining to the merits of this case can be resolved by the
district court, in a future appeal, or, if extraordinary
circumstances later present themselves, by mandamus relief.
For these reasons, we decline to exercise our discretion to
grant mandamus relief at this stage of the litigation.

    PETITION DENIED WITHOUT PREJUDICE.
