When this now nine-year-old case was before the Court in 2018, this Court denied the Government's application for a stay of proceedings in the district court pending disposition of the Government's 2018 petition for a writ of mandamus in this Court. Case No. 18A410. This Court found "the Government's petition for a writ of mandamus does not have a 'fair prospect' of success in this Court . . . . " App. 167a. In denying the requested stay without prejudice, this Court instructed that the conditions set forth in Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380–81 (2004) ("Cheney") dictate whether a petition for a writ of mandamus may be granted. App. 165a–66a, 168a.

The question presented is whether a writ of mandamus should issue directing the Ninth Circuit to vacate its writ of mandamus and remand to the district court, where the Ninth Circuit exceeded its prescribed jurisdiction under 28 U.S.C. § 1651 by ignoring the mandatory Cheney conditions and reviewing de novo two district court orders that are fully reviewable on direct appeal under 28 U.S.C. § 1292(b) with no cognizable harm to the Government, thereby depriving Plaintiffs of their clear and indisputable right to fair process and an appeal before a merits panel in the court of appeals.

Whether a writ of mandamus should issue directing the Ninth Circuit to vacate its writ of mandamus and remand to the district court where the Ninth Circuit exceeded its prescribed jurisdiction