FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

YESENIA PACHECO; LUIS 

LEMUS; S. L. P., minor child, 

by and through her Guardian ad 

Litem, Brian Comfort,

Plaintiffs-Appellees,

v.

UNITED STATES OF AMERICA,

Defendant-Appellant.

No. 21-35175

D.C. No.

2:15-cv-01175-RSL

ORDER CERTIFYING 

QUESTION TO THE 

WASHINGTON 

SUPREME COURT

Filed January 3, 2022

Before: Ronald M. Gould, Richard C. Tallman, and 

Patrick J. Bumatay, Circuit Judges.

Order
2 PACHECO V. UNITED STATES

SUMMARY*

Federal Tort Claims Act / Wrongful Birth and 

Wrongful Life

In an action brought under the Federal Tort Claims Act, 

the panel certified the following question to the 

Washington Supreme Court: 

Under claims for wrongful birth or wrongful 

life, does Washington law allow 

extraordinary damages for costs associated 

with raising a child with birth defects when 

defendant(s) negligently provided 

contraceptive care even though plaintiff(s) 

did not seek contraceptives to prevent 

conceiving a child later born with birth 

defects?

COUNSEL

Leif Overvold (argued) and Daniel Tenny, Attorneys, 

Appellate Staff; Tessa M. Gorman; United States Attorney; 

Brian M. Boynton, Acting Assistant Attorney General; 

Civil Division, United States Department of Justice, 

Washington, D.C.; for Defendant-Appellant.

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
PACHECO V. UNITED STATES 3

Michael A. Maxwell (argued), Maxwell Graham, P.S., 

Issaquah, Washington; Steve Alvarez, Alvarez Law, 

Tacoma, Washington; for Plaintiffs-Appellees.

ORDER

This case arises from a dispute between PlaintiffsAppellees Yesenia Pacheco, Louis Lemus, and their minor 

child, S.L.P., and Defendant-Appellant the United States 

about whether the latter’s actions made it liable for 

damages stemming from S.L.P.’s birth with a rare 

neurological condition. We have jurisdiction under 

28 U.S.C. § 1291.

The appeal turns on whether the United States can be 

held liable for extraordinary damages in Washington 

wrongful birth and wrongful life actions when the parties 

had no reason to suspect the birth of a child with defects. 

We determine that this issue is dispositive and has not been 

settled by Washington caselaw. Thus, we respectfully 

certify the following question to the Washington Supreme 

Court:

Under claims for wrongful birth or wrongful 

life, does Washington law allow 

extraordinary damages for costs associated 

with raising a child with birth defects when 

defendant(s) negligently provided 

contraceptive care even though plaintiff(s) 

did not seek contraceptives to prevent 

conceiving a child later born with birth 

defects?
4 PACHECO V. UNITED STATES

I.

We summarize the material facts. Pacheco, Lemus, and 

S.L.P., sued the United States under the Federal Tort 

Claims Act (“FTCA”) alleging negligence on the part of 

NeighborCare Health Center, a federally qualified 

community health center. Pacheco visited NeighborCare in 

December 2009 to discuss her birth control options, as she 

“desired to prevent the birth of an unwanted child.” Five 

days after her initial visit, Pacheco received a DepoProvera injection from NeighborCare. Depo-Provera is a 

highly effective contraceptive that requires injections to be 

administered every eleven to thirteen weeks. It is important 

that the Depo-Provera injections are administered on time 

to work as an effective contraception method. Pacheco 

says she received Depo-Provera injections from 

NeighborCare in March 2010, and January, April, and July 

2011.

Pacheco called NeighborCare on September 29, 2011, 

about twelve-and-a-half weeks since her last injection, to 

schedule her next Depo-Provera injection. Pacheco visited 

NeigborCare the next day to receive the shot. Pacheco was 

supposed to receive this “on-time” injection from Gloria 

Rodriguez, a NeighborCare employee. But instead of

administering the Depo-Provera shot, Rodriguez injected 

Pacheco with a flu vaccine. Pacheco alleged in her 

complaint that at her appointment on September 30, 2011, 

she did not request or consent to a flu shot and was not 

informed she received a flu shot from Rodriguez instead of 

the scheduled Depo-Provera injection. The district court 

found that Rodriguez failed to meet the minimum standard 

of care, as she never confirmed the reason for Pacheco’s 

visit, failed to document consent to the flu vaccine she 

administered, and never advised Pacheco of the side effects 
PACHECO V. UNITED STATES 5

of the flu shot or the consequences of skipping a DepoProvera injection.

Pacheco did not learn that she received a flu shot 

instead of her scheduled Depo-Provera injection until 

December 2011, when she called NeighborCare to schedule 

her next injection. At that time, NeighborCare informed 

Pacheco that she was injected with a flu vaccine instead of 

Depo-Provera at her last appointment and requested she 

come to the clinic for a pregnancy test. Pacheco complied, 

and her pregnancy test was positive.

Pacheco did not intend to become pregnant in the fall of 

2011 and the district court found that “[h]ad she received a 

Depo-Provera injection on September 30, 2011, she would 

not have conceived.” Yet Pacheco gave birth to S.L.P. in

August 2012, after an emergency cesarean section. The 

district court found that S.L.P. was born with epilepsy and 

bilateral perisylvian polymicrogyria (“PMG”), a disability 

that contributes to S.L.P.’s neurological delays, that will 

impose future medical expenses on both S.L.P. and her 

parents.

The district court ruled for the plaintiffs, holding that 

the defendant United States was negligent in failing to 

administer a Depo-Provera injection on September 30, 

2011. The district court held that this negligence both 

directly and proximately caused the plaintiffs’ injuries. 

Even though no party at first had reason to suspect a child 

conceived by Pacheco would be born with a disability, the 

district court held that the unwanted pregnancy, S.L.P.’s 

birth, and the medical expenses associated with the 

condition were foreseeable consequences caused by the 

defendant’s negligence.
6 PACHECO V. UNITED STATES

At a separate trial to address damages, the district court 

awarded $10,042,294.81. Of that, the court awarded 

$1,542,294.81 to Pacheco, $1 million to Lemus, and the 

remaining $7.5 million awarded represented S.L.P.’s future 

special damages.

II.

A.

Under the FTCA, the law of the state where the tort 

allegedly occurred controls issues of liability. Daly v. 

United States, 946 F.2d 1467, 1469 (9th Cir. 1991). The 

Court reviews de novo the district court’s interpretations of 

state law and reviews its findings of fact for clear error. Id. 

“The existence and extent of the standard of conduct are 

questions of law, reviewable de novo, but issues of breach 

and proximate cause are questions of fact, reviewable for 

clear error.” Liebsack v. United States, 731 F.3d 850, 854 

(9th Cir. 2013) (simplified).

When issues of state law are unclear, it is sometimes 

necessary for a federal court to certify a question to a 

state’s highest court “to obtain authoritative answers.” 

Toner for Toner v. Lederle Labs., Div. of Am. Cyanamid 

Co., 779 F.2d 1429, 1432 (9th Cir. 1986), amended by, 831 

F.2d 180 (9th Cir. 1987). The decision to certify is within 

the “sound discretion of the federal court.” Lehman Bros. 

v. Schein, 416 U.S. 386, 391 (1974). Yet, as we’ve 

repeatedly held, certification is appropriate where a case 

presents “complex” issues of state law with “significant 

policy implications.” See, e.g., Centurion Props. III, LLC 

v. Chi. Title Ins. Co., 793 F.3d 1087, 1089 (9th Cir. 2015); 

McKown v. Simon Prop. Grp. Inc., 689 F.3d 1086, 1091 

(9th Cir. 2012); Perez-Farias v. Glob. Horizons, Inc., 668 

F.3d 588, 593 (9th Cir. 2011).
PACHECO V. UNITED STATES 7

Washington law authorizes the state supreme court to 

accept certified questions from the federal courts. Wash. 

Rev. Code § 2.60.020. Washington’s certification statute 

allows certification where “it is necessary to ascertain the 

local law of [Washington] state in order to dispose of [a]

proceeding and the local law has not been clearly 

determined.” Id. Thus, we have certified questions where 

we’ve “believe[d] that the Washington Supreme Court . . . 

[was] better qualified to answer . . . in the first instance.” 

Parents Involved in Cmty. Schs. v. Order Seattle Sch. Dist., 

No. 1, 294 F.3d 1085, 1092 (9th Cir. 2002).

B.

1.

This case presents an issue ripe for certification. The 

parties dispute whether, in providing routine contraception, 

healthcare providers assume a duty related to the birth of 

defective1 children without evidence that any party was or 

should have been concerned with the birth of such children. 

In Washington, whether this duty exists is a question of 

law. McKown v. Simon Prop. Grp., Inc., 344 P.3d 661, 664 

(Wash. 2015) (“The existence of a legal duty is a question 

of law for the court.”).

The Washington Supreme Court in Harbeson v. ParkeDavis, Inc., 656 P.2d 483 (Wash. 1983), established the tort 

of wrongful birth in Washington. A wrongful birth action 

is brought by parents against a healthcare provider whose 

1 Washington courts use the term “defective” to describe children 

with congenital defects. Harbeson v. Parke-Davis, Inc., 656 P.2d 483, 

488 (Wash. 1983).
8 PACHECO V. UNITED STATES

negligent action while treating a mother caused the birth of 

a defective child. Harbeson, 656 P.2d at 488. The 

negligence can be either (1) a failure to give parents 

material information necessary for them to informedly 

decide whether to conceive or give birth to a child or 

(2) negligent “performance of a procedure to prevent the 

birth of a defective child.” Id. In short, the parent’s claim 

is that the practitioner’s negligence “is a proximate cause of 

the birth of a defective child.” Id.

As a negligence action, to prevail in a wrongful birth 

claim, the parents must prove duty, breach, injury, and 

proximate causation. See id. at 489. In Washington, 

parents have a right to prevent the birth of a defective child, 

and healthcare providers have a duty “correlative” to that 

right to use reasonable care when medical procedures are 

performed. Id. at 488–94. Medical providers breach this 

duty “by failure to conform to the appropriate standard of 

skill, care, or learning.” Id. at 492. The birth of a defective 

child is an “actionable injury.” Id. Proximate causation is 

shown by establishing that breach of the provider’s duty 

was the cause in fact of the injury and that legal liability 

should attach. Id. at 493. Cause in fact is established by 

showing that the injury would not have occurred but for the 

breach of duty. Id. Under Washington law, in wrongful 

birth cases, the establishment of cause in fact also 

establishes that liability should attach. Id. When the 

elements are met, the parents may recover “medical, 

hospital, and medication expenses attributable to the child’s 

birth and to its defective condition,” and they may also 

recover damages for emotional injury. Id.

For wrongful birth actions, it appears important that the 

child indeed be “defective.” Washington courts have long 

held that parents may not recover child-rearing costs from 
PACHECO V. UNITED STATES 9

practitioners whose negligent performance of a

contraceptive procedure resulted in the birth of a healthy 

child. See McKernan v. Aasheim, 687 P.2d 850, 854–56

(Wash. 1984). In these cases, however, “damages for the 

expense, pain and suffering, and loss of consortium 

associated with the failed [contraceptive procedure], 

pregnancy and childbirth” may still be recovered. Id. at 

856.

A wrongful life claim is the “child’s equivalent of the 

parents’ wrongful birth action.” Harbeson, 656 P.2d at 

494. Like wrongful birth, the Washington Supreme Court 

first recognized the tort of wrongful life in Harbeson. 

There, the court defined the action as a claim in which the 

child alleges his birth and the pain and suffering 

accompanying his condition would not have occurred but 

for the clinician’s failure to adequately inform his parents 

of a risk or perform “a procedure intended to prevent the 

birth of a defective child,” such as “sterilization or 

abortion.” Id.

As above, to prevail in a wrongful life action, the 

plaintiff must prove duty, breach, injury, and proximate 

causation. Id. at 495. The medical practitioner has duties 

to an unborn child “corresponding” to those owed to the 

child’s parents to inform the parents of any material risks 

that the child will be born with defects and to conform to 

the appropriate standard of care should action be taken to 

prevent the birth or conception of the child. Id. at 496. The 

practitioner’s “duty [is] breached by failure to observe the 

appropriate standard of care.” Id. Injury resulting from 

this breach is measured in terms of extraordinary expenses 

to be incurred over the life of the child. Id. Proximate 

cause, lastly, is whether “[b]ut for the physician’s 

negligence, the parents would have avoided conception, or 
10 PACHECO V. UNITED STATES

aborted the pregnancy, and the child would not have 

existed.” Id. at 497.

Thus, as we’ve observed so far, both the wrongful birth 

and wrongful life causes of action are based on (1) the right 

of parents to prevent the conception and birth of defective 

children, (2) the existence of healthcare practitioners’ duty 

to inform parents of the risks of having defective children 

and to perform with due care procedures to prevent the 

birth of defective children, and (3) that a healthcare 

practitioner’s negligence in failing to adequately inform the 

parents of the relevant risks or to exercise due care in the 

performance of any sterilization or abortion procedure was 

a but-for cause of the child’s birth. 

Here, in line with the third factor, the district court 

found that S.L.P. would not have been born but for the 

United States’ negligence. Yet unlike the rule announced 

in Harbeson, the negligently performed procedure here was 

not “intended to prevent the birth of a defective child,” 

Harbeson, 656 P.2d at 494, but as the complaint says, to 

generally “prevent the birth of an unwanted child.” 

According to the United States, this is important because it 

means that this case lies outside the duty imposed on 

healthcare providers to assume responsibility when they 

encumber parents’ rights by failing to adequately complete 

procedures geared towards preventing the births of 

defective children.2

2 Though the United States contests liability for extraordinary 

damages under Washington’s wrongful birth and wrongful life causes 

of action, it concedes that under “longstanding principles of tort law,” 

Plaintiffs-Appellees should recover expenses associated with 

pregnancy and childbirth.
PACHECO V. UNITED STATES 11

Indeed, in discussing wrongful life, the Harbeson court 

noted that the element of duty in that cause of action is 

“limited, like any other duty, by the element of 

foreseeability.” Harbeson, 656 P.2d at 495. For instance, 

the mother in Harbeson was taking epilepsy medication 

and specifically inquired of three doctors regarding any 

risks for her becoming pregnant in the future. Id. at 463. 

No doctor conducted literature searches or reviewed other 

sources for pertinent information regarding the nexus 

between the medication and birth defects, and the mother 

subsequently gave birth to two children with congenital 

defects. Id. The facts are much different here. Perhaps 

absent any specific objective to prevent the birth of a 

defective child, the Washington Supreme Court would find 

that responsibility for S.L.P.’s birth lies outside the 

Harbeson duties.

On the other hand, the Washington Supreme Court

might decide, as the district court did here, that breach of 

the general duty to non-negligently administer 

contraceptives under state law is enough to establish 

liability for extraordinary damages in birth defect cases. If 

so, the Washington Supreme Court might note, as the 

district court did, the fact that about three percent of 

children born in the United States are born with a birth 

defect of some kind. The Washington Supreme Court

could construe this incidence as making the occurrence of 

birth defects foreseeable enough to fall within the bounds 

of the Harbeson duties.

The need for clarification in this area of the law is 

illustrated by the fact that no Washington court discussing 

wrongful birth or wrongful life has ever explicitly approved 

of finding liability where neither the parents nor the 

healthcare providers had or should have had a specific 
12 PACHECO V. UNITED STATES

concern about the birth of a defective child. This case 

contrasts with Wuth ex rel. Kessler v. Lab. Corp. of Am., 

where a child born with birth defects was found entitled to 

seek wrongful life damages where medical defendants who 

tested for genetic abnormalities failed to detect them. 359 

P.3d 841 (Wash. Ct. App. 2015). It also contrasts with 

Harbeson itself, which concerned the failure of doctors to 

warn a mother of possible congenital defects that could 

result from her ingestion of a drug that they had prescribed. 

Harbeson, 656 P.2d at 496.

At least two Washington cases have fact patterns 

somewhat like this case. They, however, fail to elucidate

this area of the law. Quimby v. Fine, 724 P.2d 403 (Wash. 

Ct. App. 1986) and Shupe v. Ketting, 1999 Wash. App. 

LEXIS 921 (Ct. App. May 25, 1999) (unpublished), mostly 

analyze statute of limitations issues and their holdings do 

not address foreseeability in the context of duty. In 

Quimby, the plaintiffs sued a healthcare provider for 

wrongful birth after Mrs. Quimby gave birth to a child with 

ultimately fatal birth defects. 724 P.2d at 404. The 

defective child was conceived following a failed tubal 

ligation procedure performed by the defendant. Id. The 

Quimby court found for the plaintiffs on the statute of 

limitations issue but did not say whether any party had or 

should have had any particular concern about Mrs. Quimby 

bearing children with birth defects. See id. at 405.

In Shupe, a mother sued doctors after two unplanned 

births occurred following two botched contraceptive 

procedures. 1999 Wash. App. LEXIS 921, at *1–2. The 

mother sued only after one of her children developed a rare 

genetic neurological disorder years after birth. Id. at *7. 

Shupe is distinct from this case because the alleged defect 

was not manifest at the time of birth. Even so, dicta in 
PACHECO V. UNITED STATES 13

Shupe further befogs the issue as to Washington’s 

recognition of extraordinary damages in cases such as the 

one at bar. Apparently objecting to the defendants’ lack of 

awareness of an increased risk of defects resulting from the 

plaintiff’s pregnancy, the court opined that Washington law 

had not “recognized a cause of action based upon such a 

condition, which the doctors in question had no reason to 

foresee.” Id. at *23.

In sum, Washington wrongful birth and wrongful life 

caselaw is unclear on the allowability of extraordinary costs 

associated with the birth of a child with birth defects when 

defendants negligently administered birth control 

medications and plaintiff(s) did not seek birth control to 

prevent the birth of a child with birth defects.

2.

Washington caselaw outside the wrongful birth and 

wrongful life contexts is similarly inconclusive. Wrongful 

birth and wrongful life actions are species of medical 

malpractice claims. Harbeson, 656 P.2d at 486. Such 

“claims are fundamentally negligence claims, rooted in the 

common law tradition.” Putman v. Wenatchee Valley Med. 

Ctr., P.S., 216 P.3d 374, 378 (Wash. 2009). Washington’s 

legislature has “not extinguished the common law action 

and replaced it with a statutory remedy.” Id. So, the 

ordinary concepts that apply to negligence claims in 

Washington should also apply here. 

As the United States notes, Washington tort law has 

long defined defendants’ duties in terms of the risks that 

make conduct unreasonably dangerous. In Rikstad v. 

Holmberg, 456 P.2d 355, 358 (Wash. 1969), the state 

supreme court restated its precedents that there is no 

liability where harm is unforeseeable and that for 
14 PACHECO V. UNITED STATES

foreseeability, when measured in terms of duty or 

proximate cause, the “question is whether the actual harm 

fell within a general field of danger which should have 

been anticipated.” Id. at 358 (simplified). This field of 

danger, however, is not unlimited, but restricted to 

“unreasonably dangerous conduct” made dangerous 

because it “threatens particular kinds of harm to particular 

kinds of persons in particular ways.” Id. (simplified). To 

be foreseeable “the duty imposed by the risk [must] 

embrace[] that conduct which resulted in injury to the 

plaintiff.” Id.

It is unclear, however, whether the actual harm of 

S.L.P.’s birth with defects falls within the scope of the 

harms associated with the United States’ failure to 

adequately administer contraceptives to Pacheco. For its 

part, the United States argues that the type of harm 

encompassed by “providing treatment to avoid childbirth is 

the harm associated with the unwanted pregnancy and 

birth, not the expenses associated with a particular medical 

condition” a child might have at birth.

In support of its position, the United States cites 

Christen v. Lee, 780 P.2d 1307 (Wash. 1989). In Christen,

the Washington Supreme Court affirmed summary 

judgment when the plaintiffs sued to hold defendant 

drinking establishments liable for injuries the plaintiffs 

sustained as the result of criminal assaults perpetrated by 

patrons of the establishments. Id. at 1317.

There, the court assayed the “general type of harm” 

embraced by the specific duty owed by those who sell 

liquor, and concluded that drunk driving was a relevant 

harm, but violent crime was not. Id. at 1315. Though the 

court recognized that the defendant owed a “duty not to 

furnish intoxicating liquor to a person who is obviously 
PACHECO V. UNITED STATES 15

intoxicated,” it determined that a breach of that duty did not 

make the defendant liable for damages for violent assault. 

Id. A seller of liquor may owe a duty to protect the public 

against the risk of criminal assault by a patron, “but only if 

the drinking establishment which furnished the intoxicating 

liquor had some notice of the possibility of harm from prior 

actions of the person causing the injury.” Id. at 1312.

Christen, the United States contends, is analogous to 

the situation here. In this case, the healthcare practitioner 

had an undisputed general duty to administer 

contraceptives with due care. But absent any specific intent 

to avoid the birth of a child with congenital defects, the 

United States claims it cannot be said that the healthcare 

provider had a specific duty associated with the unlikely 

occurrence of S.L.P.’s condition.

On the other hand, Christen, may be inapt in wrongful 

birth and wrongful life cases. In Christen, the court held 

that the defendant establishments had no duty absent “some 

notice of the possibility of harm from prior actions of the 

person causing the injury.” Id. Washington law has never 

required that congenital defects occur in prior births so that 

defendants can be “on notice” before their negligent acts. 

Instead, even under the United States’ reading of Harbeson, 

the contraceptive procedure need only be “designed to 

avoid the conception or birth of a child suffering from a 

birth defect.”

The United States also relies on Maltman v. Sauer, 530 

P.2d 254 (Wash. 1975). In Maltman, a driver was seriously 

injured in an automobile accident and a helicopter 

dispatched to assist the driver crashed while en route to the 

scene of the accident, killing its occupants. Id. at 256. The 

estates of the decedent helicopter crew sued under the 

“rescue doctrine.” Id. Though the court observed the 
16 PACHECO V. UNITED STATES

existence of “some duty” on behalf of the defendant 

because his actions invited rescue, it held that the “accident 

suffered by the helicopter crew was too remote from the 

actual realm of peril created by the defendant’s original 

negligence to come within that duty.” Id. at 258. Thus, the 

court concluded, it was “inconceivable that the defendant 

owed a duty to the plaintiff to assure against a helicopter 

crash.” Id. at 259.

Like Christen, the United States argues that Maltman 

supports the idea that though Washington healthcare 

providers are “subject to a duty [it] does nothing to render 

them liable for hazards tied to a duty to which they were 

not subject and with respect to which their conduct was not 

negligent.” Plaintiffs-Appellees, by contrast, contend that 

Maltman is irrelevant to the present analysis. 

Indeed, Maltman may not apply here because the harm 

that befell Plaintiffs-Appellees—S.L.P.’s birth with 

defects—is seemingly insufficiently remote from the 

defendant’s negligence as to make the existence of a duty 

to assure against it “inconceivable.” Instead, as PlaintiffsAppellees note, “even the United States concedes” that it 

breached some duty.

In Washington, the “existence of a legal duty is a 

question of law and depends on mixed considerations of 

logic, common sense, justice, policy, and precedent.” 

Christensen v. Royal Sch. Dist. No. 160, 124 P.3d 283, 285

(Wash. 2005) (simplified). Given the policy-laden nature 

of this inquiry, we believe it “lies properly within the 

purview of the Washington Supreme Court.” See 

Centurion Props., 793 F.3d at 1091.
PACHECO V. UNITED STATES 17

III.

We do not intend the phrasing of our question to restrict 

the Washington Supreme Court’s consideration of the 

issue. We recognize that the Washington Supreme Court 

may, in its discretion, reformulate the question. Broad v. 

Mannesmann Anlagenbau AG, 196 F.3d 1075, 1076 (9th 

Cir. 1999).

The Clerk of the Court is directed to transmit to the 

Washington Supreme Court, under official seal of the Ninth 

Circuit, this order and request for certification along with 

copies of all relevant briefs and excerpts of record pursuant 

to Wash. Rev. Code §§ 2.60.020 and 2.60.030.

If the Washington Supreme Court accepts the certified 

question, we designate Defendant-Appellant United States 

as the party to file the first brief pursuant to Wash. R. App. 

P. 16.16(e)(1).

Further proceedings in this Court are stayed pending the 

Washington Supreme Court’s decision whether it will 

accept review and, if so, receipt of the answer to the 

certified question. The case is withdrawn from submission 

until further order from this Court. The Clerk is directed to 

administratively close this docket pending further order. 

The panel will resume control and jurisdiction upon receipt 

of an answer to the certified question or upon the 

Washington Supreme Court’s decision to not accept the 

certified question.

When the Washington Supreme Court decides whether 

to accept the certified question, the parties will promptly 

file a joint status report informing this Court of the 

decision. If the Washington Supreme Court accepts the 

certified question, the parties will file another joint status 
18 PACHECO V. UNITED STATES

report informing this Court when the Washington Supreme 

Court issues an answer to the certified question promptly 

upon the issuance of that determination.

IT IS SO ORDERED.

________________________

Chief Judge Mary H. Murguia

U.S. Court of Appeals for the Ninth Circuit