TODD KIM

Assistant Attorney General 

United States Department of Justice

Environment & Natural Resources Division 

SEAN C. DUFFY (NY Bar No. 4103131) 

FRANK J. SINGER (CA Bar No. 227459) 

Trial Attorneys

Natural Resources Section

150 M Street NE

Washington, DC 20002 

Tel: (202) 305-0445 

sean.c.duffy@usdoj.gov 

Attorneys for Defendants 

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

KELSEY CASCADIA ROSE JULIANA, et al., 

Plaintiffs,

v. 

THE UNITED STATES OF AMERICA, et al., 

 

Defendants.

Case No. 6:15-cv-1517-AA

MOTION TO STAY LITIGATION

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MOT. TO STAY LITIGATION 1

MOTION

Defendants hereby move to stay litigation pending resolution of their (1) Motion to 

Dismiss the Second Amended Complaint, (2) Motion to Certify under 28 U.S.C. § 1292(b) for 

interlocutory appeal any order from this Court denying the motion to dismiss (ECF No. 547), and 

(3) Motion to Certify under 28 U.S.C. § 1292(b) for interlocutory appeal (ECF No. 551) this 

Court’s order granting Plaintiffs’ motion for leave to file their amended complaint (ECF No. 

540).

1

This motion is supported by this notice of motion, the accompanying memorandum of 

law, and such evidence and argument that may be offered before the motion is submitted to the 

Court.

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO STAY

INTRODUCTION

Given (1) the Ninth Circuit’s 2020 mandate for dismissal of this action, (2) Defendants’ 

pending motion to dismiss and motions to certify for interlocutory appeal, (3) this Court’s and 

the Ninth Circuit’s 2018 holdings that the dispositive issues raised in this case qualify for

interlocutory appeal, and (4) the U.S. Supreme Court’s repeated prior observations that the same 

issues raised in Defendants’ now-pending motion to dismiss qualify for interlocutory appeal, 

proceedings in this suit should be stayed until this Court resolves Defendants’ motion to dismiss 

and, if necessary, Defendants’ motion to certify a denial of that motion for interlocutory appeal 

and Defendants’ motion to certify this Court’s order granting Plaintiffs leave to amend their 

complaint.

1 In compliance with Local Rule 7-1, on July 6, 2023, the parties conferred telephonically and 

Plaintiffs indicated that they oppose this motion to stay litigation.

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MOT. TO STAY LITIGATION 2

The stay sought in this motion would further judicial economy by allowing resolution of 

threshold dispositive issues raised in response to Plaintiffs’ second amended complaint without 

the cost and burden of additional discovery or other pre-trial preparations, and by potentially 

obviating near-term appellate proceedings. This stay is also appropriate to honor the full breadth 

of this Court’s and the Ninth Circuit’s rulings that all dispositive issues were certified in 2018 for 

interlocutory appeal, including those that the Ninth Circuit’s 2020 ruling did not need to reach 

after mandating dismissal on standing grounds. 

RELEVANT BACKGROUND

This Court is familiar with the background and procedural history, which are set out more 

fully in Defendants’ Motion to Dismiss Second Amended Complaint and Motion to Certify, ECF 

No. 547. The Ninth Circuit mandated dismissal of this suit in 2020, and the United States, 

consistent with that mandate, has again moved to dismiss this case in its entirety for lack of 

jurisdiction. Id. Defendants have also moved to dismiss this suit on other grounds that the Ninth 

Circuit’s 2020 order did not reach, but which the Supreme Court observed—and both the Ninth 

Circuit and this Court held—qualified for interlocutory appeal. See July 30, 2018 Supreme Court 

Order, ECF No. 330-1 (observing that “[t]he breadth of [plaintiffs’] claims is striking,” and 

citing the interlocutory appeal standard that “the justiciability of those claims presents substantial 

grounds for difference of opinion”); Nov. 2, 2018 Supreme Court Order 2, ECF No. 405-1

(reiterating the Court’s July 30, 2018 order noting that the “‘striking’ breadth of plaintiffs’ 

claims ‘presents substantial grounds for difference of opinion’”); Nov. 8, 2018 Ninth Circuit 

Order, ECF No. 432-1 (staying trial pending consideration of petition for writ of mandamus and 

ordering district court to promptly resolve Defendants’ motion to reconsider denial of request to 

certify orders for interlocutory appeal); Nov. 21, 2018 Order Certifying Case for Interlocutory 

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MOT. TO STAY LITIGATION 3

Appeal (“Nov. 21, 2018 Order”) 6, ECF No. 444 (certifying “this case” for interlocutory appeal 

and staying “this case . . . pending a decision by the Ninth Circuit Court of Appeals”); Juliana v. 

United States, 949 F.3d 1125, 1126 (Mem.) (9th Cir. 2018) (granting permission to appeal this 

case pursuant to 28 U.S.C. § 1292(b)).

Accordingly, Defendants have moved this Court to certify under 28 U.S.C. § 1292(b) any 

order this Court may issue denying the motion to dismiss. Defs.’ Mot. to Dismiss 32-34, ECF 

No. 547. In addition, Defendants have today filed a separate motion under 28 U.S.C. § 1292(b) 

(ECF No. 551) requesting that the Court certify for interlocutory appeal the order granting 

Plaintiffs leave to file their second amended complaint, ECF No. 540. 

ARGUMENT

“[T]he power to stay proceedings is incidental to the power inherent in every court to 

control the disposition of the causes on its docket with economy of time and effort for itself, for 

counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936); see also CMAX, Inc. 

v. Hall, 300 F.2d 265, 268 (9th Cir. 1962). Even if this case had no prior history, principles of 

judicial economy, as well as common law and administrative law doctrines, would call for the 

Court to exercise its inherent powers to stay the action pending resolution of threshold 

dispositive motions. The propriety of a stay is particularly apparent, however, in light of the 

case’s history, including the Ninth Circuit’s 2020 mandate for dismissal of this action, this 

Court’s and the Ninth Circuit’s 2018 holdings that the jurisdictional and substantive issues raised 

in Defendants’ pending motion to dismiss qualify for interlocutory appeal, and the Supreme 

Court’s repeated observations that the issues raised in Defendants’ pending motion to dismiss 

qualify for interlocutory appeal. A stay of proceedings while the Court considers Defendants’ 

Motions would honor these earlier rulings, and further judicial economy and the convenience of 

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the parties by allowing the parties to avoid wasting resources on further discovery, additional 

merits briefing, trial preparations, and, potentially, near-term appellate proceedings.

I. The Ninth Circuit’s Holding on Redressability and Its Resulting Mandate Still 

Control and Warrant a Stay While Defendants’ Motion to Dismiss Is Adjudicated.

The Ninth Circuit mandated dismissal of this lawsuit in 2020 after concluding that 

Plaintiffs’ claims are not redressable. Juliana v. United States, 947 F.3d 1159, 1170 (9th Cir. 

2020), denying reh’g en banc, 986 F.3d 1295 (Mem.) (9th Cir. 2021). That mandate remains, as

explained in Defendants’ motion to dismiss. At minimum, the grounds for dismissal are strong 

enough to warrant a stay while the Court considers them.

A stay is particularly warranted because the Ninth Circuit’s 2020 ruling was a product of 

a complex and prolonged vetting of the susceptibility of this case for interlocutory appeal. See In 

re United States, 884 F.3d 830, 837 (9th Cir. 2018); In re United States, 139 S. Ct. 452, 453 

(Mem.) (2018); Nov. 21, 2018 Order 5-6, ECF No. 444; Juliana, 949 F.3d at 1126 (Mem.). The 

culmination of that extensive work was a mandate of dismissal. Juliana, 947 F.3d at 1175. And, 

significantly, this Court entered a stay while the Ninth Circuit considered that interlocutory 

appeal. Nov. 21, 2018 Order 6, ECF No. 444. A stay similarly should be entered now to allow 

for the focused and expedited consideration of the applicability of the Ninth Circuit’s mandate 

without the added burden and cost of additional discovery or other pre-trial activities.

II. The Prior Certifications for Interlocutory Appeal of the Legal Issues Reasserted in 

Defendants’ Pending Motion to Dismiss Warrant a Stay.

Even putting the mandate aside, the motion to dismiss identifies a broad range of 

deficiencies in Plaintiffs’ second amended complaint, each of which has previously been found 

to satisfy the standard for interlocutory appellate review. Because the lack of redressability alone 

was sufficient for the Ninth Circuit to mandate dismissal of the first amended complaint in 2020, 

the Ninth Circuit did not address other issues certified for interlocutory appeal, including 

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whether: (1) this suit is a proper case or controversy within a court’s traditional equitable powers 

to entertain, and not foreclosed by the separation-of-powers doctrine; (2) there is a substantive 

due process right to a stable climate system; (3) there is a cognizable public trust claim against 

the federal government; and (4) Plaintiffs have a viable equal protection claim even though they 

are not members of a suspect class.

Those broader issues remain controlling questions of law as to which this Court, the 

Ninth Circuit, and the Supreme Court have determined there is substantial ground for difference 

of opinion. See Nov. 21, 2018 Order 5-6, ECF No. 444; Juliana, 949 F.3d at 1126 (Mem.); In re 

United States, 884 F.3d at 837; In re United States, 139 S. Ct. 453 (Mem.). And it was because 

of those determinations that this Court and the Ninth Circuit held that both the jurisdictional and 

substantive legal issues presented in Defendants’ earlier dispositive motions met the

requirements for interlocutory appeal. Nov. 21, 2018 Order 6, ECF No. 444; Juliana, 949 F.3d at 

1126 (Mem.). Those claims have not changed in Plaintiffs’ second amended complaint and, thus, 

the deficiencies in those claims continue to satisfy the standard for interlocutory appeal under 28 

U.S.C. § 1292(b). Compare Defs.’ Mot. to Dismiss 11-19, ECF No. 547 (lack of Article III 

standing), with Defs.’ Mot. to Dismiss 7-19, ECF No. 27-1 (same), and Defs.’ Mot. for Summ. J. 

6-24, ECF No. 207 (same); compare Defs.’ Mot. to Dismiss 19-32, ECF No. 547 (failure to state 

a claim upon which relief may be granted), with Defs.’ Mot. to Dismiss 19-29, ECF No. 27-1 

(same), and Defs.’ Mot. for Summ. J. 24-30 (same).

Again, the stay sought here furthers judicial economy by prioritizing the expedited and 

efficient resolution of controlling legal issues that this Court and the Ninth Circuit have 

independently deemed qualified for interlocutory appeal under 28 U.S.C. § 1292(b). And again, a 

stay here is appropriate now as just when this Court last stayed proceedings, Nov. 21, 2018 

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Order, ECF No. 444, indeed, more so given the Ninth Circuit’s mandate. A stay would also limit 

the possibility that appellate proceedings will be necessary in the near term while the Court 

considers Defendants’ other pending motions. 

CONCLUSION

For all of the foregoing reasons, this Court should grant the United States’ motion to stay 

proceedings pending resolution of Defendants’ motion to dismiss, the motion to certify the 

Court’s order granting Plaintiffs leave to file a second amended complaint, and the motion to 

certify any order denying the motion to dismiss. 

Dated: July 7, 2023 TODD KIM

Assistant Attorney General 

United States Department of Justice

Environment & Natural Resources Division

/s/ Sean C. Duffy 

SEAN C. DUFFY (NY Bar No. 4103131) 

FRANK J. SINGER (CA Bar No. 227459) 

Trial Attorneys

Natural Resources Section

150 M Street NE 

Washington, DC 20002 

Tel: (202) 305-0445 

Fax: (202) 305-0506 

sean.c.duffy@usdoj.gov 

Attorneys for Defendants

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