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

QUESTION PRESENTED 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. In response to the Government’s fifth petition for a writ of mandamus in the Ninth Circuit to reverse the district court’s interlocutory orders granting Plaintiffs leave to amend and denying in part the Government’s motion to dismiss Plaintiffs’ second amended complaint, a motions panel of the Ninth Circuit (the “panel”) issued a writ of mandamus to the district court to dismiss. The panel did so, however, without applying or finding satisfied the three conditions set forth in Cheney, contravening this Court’s prior instruction and the final judgment rule. 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 i 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.