TODD KIM

Assistant Attorney General 

Environment & Natural Resources Division

GUILLERMO A. MONTERO

Assistant Section Chief 

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

(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.

UNITED STATES OF AMERICA, et al.,

 Defendants.

Case No. 6:15-cv-01517-AA

DEFENDANTS’ MOTION FOR A 

STAY PENDING A PETITION FOR 

A WRIT OF MANDAMUS

Case 6:15-cv-01517-AA Document 571 Filed 01/18/24 Page 1 of 9
DEFS.’ MOT. FOR A STAY PENDING

A PET. FOR A WRIT OF MANDAMUS 2 

MOTION

The Court should stay proceedings in this case pending Defendants’ forthcoming petition 

for a writ of mandamus. The Ninth Circuit ordered this Court to dismiss this case: “[W]e reverse 

the certified orders of the district court and remand with instructions to dismiss for lack of 

Article III standing.” Juliana v. United States, 947 F.3d 1159, 1175 (9th Cir. 2020). The Ninth 

Circuit’s opinion in this case forecloses the theory that a declaratory judgment, standing alone, 

can redress Plaintiffs’ alleged injuries, as required to show Article III standing. Id. at 1170. The 

Court’s December 29, 2023, Order therefore violates the rule of mandate. Creech v. Tewalt, 84 

F.4th 777, 787 (9th Cir. 2023) (“[D]istrict courts must implement both the letter and the spirit of 

the mandate, taking into account the appellate court’s opinion and the circumstances it 

embraces.” (citation and internal quotation marks omitted)). And even if the Court’s order does 

not violate the mandate, the Supreme Court’s observation still pertains: “the justiciability of 

[these Plaintiffs’] claims presents substantial grounds for difference of opinion.” July 30, 2018, 

Supreme Court Order, ECF No. 330-1. 

Because this Court denied Defendants’ motion to certify its orders for interlocutory appeal, 

the government will seek a writ of mandamus from the Ninth Circuit to enforce its mandate and 

direct the Court to dismiss this case in its entirety. If granted, the government’s petition will end 

this case, and any public resources spent on further litigation while the petition is pending would 

be wasted. The government therefore respectfully requests the Court to enter a stay of all 

proceedings in this Court pending resolution of the mandamus petition, as the Ninth Circuit did 

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A PET. FOR A WRIT OF MANDAMUS 3 

when considering the government’s prior mandamus petition in this case.1 See United States v. 

U.S. Dist. Court for Dist. of Or., 884 F.3d 830, 838 (9th Cir. 2018). 

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, moved to dismiss this case in its entirety for lack of jurisdiction. Id. 

The Court granted that motion in part and denied it in part on December 29, 2023. The Court 

acknowledged that the Ninth Circuit held in its 2020 opinion that the limits of Article III prohibit 

the Court from awarding the injunctive relief Plaintiffs seek and dismissed that portion of the 

Second Amended Complaint. ECF No. 565 at 28. But the Court also ruled that it could issue a 

declaratory judgment and—in conflict with the Ninth Circuit’s opinion—that the availability of 

such a judgment satisfied the redressability prong of the Article III standing inquiry. Id. at 34. 

The Court also denied Defendants’ motion to certify its ruling for interlocutory appeal without 

explanation. Id. at 49. The Court denied that request even though the Supreme Court observed, 

and the Ninth Circuit has held, that orders allowing the case to continue met the standard for 

certification under 28 U.S.C. § 1292(b)—even before the Ninth Circuit mandated dismissal. See

July 30, 2018 Supreme Court Order, ECF No. 330-1; 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 

1

 Although Fed. R. App. P. 8(a)(1) does not expressly refer to a stay pending review of a petition 

for a writ of mandamus under Fed. R. App. P. 21, Defendants nevertheless believe it appropriate 

to ask this Court for a stay before asking the court of appeals to enter a stay pending disposition 

of the government’s mandamus petition. 

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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); Juliana v. United States, 949 F.3d 

1125, 1126 (9th Cir. 2018) (granting permission to appeal this case pursuant to 28 U.S.C. § 

1292(b)). 

ARGUMENT

Whether to issue a stay is “an exercise of judicial discretion . . . to be guided by sound 

legal principles,” Nken v. Holder, 556 U.S. 418, 433–34 (2009) (internal citations omitted), 

based on the following factors: (1) the applicant’s likely success on the merits; (2) irreparable 

injury to the applicant absent a stay; (3) substantial injury to the other parties; and (4) the public 

interest. Hilton v. Braunskill, 481 U.S. 770, 776 (1987); see Leiva-Perez v. Holder, 640 F.3d 

962, 970 (9th Cir. 2011). Each of these factors weighs in favor of a stay of the litigation pending 

resolution of a petition for a writ of mandamus. 

First, there is a substantial likelihood that the Ninth Circuit will grant the petition. The 

Ninth Circuit’s mandate directed this Court to “to dismiss [this case] for lack of Article III 

standing.” The central question is whether that mandate allowed this Court to reexamine 

Plaintiffs’ standing on the basis of a Second Amended Complaint nearly identical to the First 

Amended Complaint that did not “updat[e] facts,” “add[] new claims for relief,” or “challeng[e] 

conduct” of different defendants. ECF No. 462 at 2, 9. This Court held that the mandate did not 

expressly preclude granting leave to amend. But Plaintiffs’ Second Amended Complaint invited 

this Court to reconsider the question of redressability, an issue that is clearly encompassed in the 

Ninth Circuit’s direction to dismiss the case “for lack of Article III standing.” 947 F.3d at 1175. 

The Court of Appeals has already held that Plaintiffs’ injuries are not redressable by an Article 

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III court. Id. at 1173. The Court’s refusal to dismiss Plaintiffs’ Second Amended Complaint in its 

entirety therefore violates the rule of mandate. See Creech, 84 F.4th at 787 (“[D]istrict courts 

must implement both the letter and the spirit of the mandate.” (citation and internal quotation 

marks omitted)).

Even if its mandate is not dispositive, the Ninth Circuit’s opinion is. The Court of 

Appeals held not only that the Constitution prohibits Article III courts from awarding injunctive 

relief to design, supervise, or implement Plaintiffs’ proposed remedial plan, due to the complex 

policy decisions involved in the government’s response to climate change, 947 F.3d at 1171, but 

also that a declaratory judgment cannot “by itself” redress Plaintiffs’ injuries, id. at 1170. This 

Court acknowledged the former holding, ECF No. 565 at 28, but its Opinion is irreconcilable 

with the latter. See ECF No. 565 at 31 (“A declaration that defendants are violating plaintiffs’ 

constitutional rights may be enough to bring about relief by changed conduct.”); contra 947 F.3d 

at 1175 (holding that Plaintiffs lack standing even though the Ninth Circuit “[did] not dispute” 

that the requested relief “could well goad the political branches into action”).

In its December 29 opinion, the Court suggested that the Supreme Court’s decision in 

Uzuegbunam v. Preczewski, 141 S. Ct. 792 (2021), undermines the Ninth Circuit’s holding 

because in that case the Supreme Court suggested that declaratory relief may sometimes be 

sufficient to redress a plaintiff’s injuries. But Uzuegbunam concerned a plaintiff that elected to 

seek nominal damages, rather than litigating actual damages, in a case concerning a wholly past 

harm. Id. at 798. It did not address a situation like this, which concerns prospective harms and in 

which the Court would be constitutionally prohibited both from entering the declaration that 

Plaintiffs seek or from enforcing any declaration that it might issue. See Juliana, 947 F.3d at 

1173 (“[I]n the end, any plan is only as good as the court’s power to enforce it.”). Nor does the 

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Court’s suggestion that it would somehow “supervise” the government’s compliance with a 

declaration change the redressability analysis because the Ninth Circuit has already held that 

Article III does not permit the Court to “supervise . . . the plaintiffs’ requested remedial plan.” Id. 

at 1171. 

In short, the Ninth Circuit’s opinion, no less than its mandate, requires that this case be 

dismissed for lack of standing. The Court of Appeals is therefore likely to grant a writ of 

mandamus “to confine [this Court] to a lawful exercise of its prescribed jurisdiction.” Cheney v. 

U.S. Dist. Court for D.C., 542 U.S. 367, 380–81 (2004) (quoting Roche v. Evaporated Milk 

Assn., 319 U.S. 21, 26 (1943)). Although mandamus is an “extraordinary remedy,” Will v. United 

States, 389 U.S. 90, 95 (1967), it is the appropriate means for an appellate court to enforce its 

mandate, id. at 96. And the Court’s denial of certification for its orders for interlocutory appeal 

renders mandamus the only form of relief available. See Balintulo v. Daimler AG, 727 F.3d 174, 

186 (2d Cir. 2013) (“If a district court refuses certification . . . then a party may petition for a 

writ of mandamus.”).

Second, the government will be prejudiced if this case is allowed to proceed while its 

mandamus petition is pending. Notably, the Justice Department had already devoted more than 

13,000 attorney and paralegal hours to this litigation as of October 17, 2018—twelve days before 

this case was first scheduled to go to trial—in addition to spending millions of taxpayer dollars 

on expert fees, travel expenses, and other non-attorney fees. See ECF No. 391-1 at 42-43. The 

number of hours expended on this litigation by Department of Justice attorneys and paralegals 

now stands at over 21,000, despite the Ninth Circuit’s order mandating dismissal of the litigation 

in 2020. See Exhibit 1, Decl. of Guillermo A. Montero ¶ 3. 

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As the Ninth Circuit has explained, “litigants who have proceeded to judgment in higher 

courts”—like the government in this case—“‘should not be required to go through that entire 

process again to obtain execution of the judgment.’” Vizcaino v. U.S. Dist. Ct. for W. Dist. of 

Wash., 173 F.3d 713, 719 (9th Cir. 1999). Having already prevailed on appeal, the government 

will be irreparably harmed if it is forced to expend substantial public resources litigating a case 

that the Ninth Circuit has ruled is beyond the courts’ power to resolve. Although the Court has 

disagreed that the Ninth Circuit’s mandate and judgment control the outcome of this case, ECF 

No. 565 at 20–21, there is—at the very least—a substantial basis for the government’s position. 

Even if this Court does not believe dismissal is appropriate, at minimum the case should be 

stayed until the Ninth Circuit is given the opportunity to clarify the scope of its mandate. 

Further, there is no justification for subjecting the government to unlawful discovery 

before threshold jurisdictional issues are resolved. See In re United States, 583 U.S. 29, 31–32 

(2017). As the government has previously explained, requiring agencies to take positions on 

substantive policy issues through discovery would contravene the procedural requirements 

imposed by the Administrative Procedure Act for agency decisionmaking, and directing agency 

officials to provide an assessment of substantive policy questions and potential responses would 

violate the separation of powers, in particular by invading the President’s exclusive 

constitutional authority to “require the Opinion . . . of the principal Officer in each of the 

executive Departments, upon any Subject relating to the Duties of their respective Offices.” U.S. 

CONST. art. II, § 2, cl. 1; see ECF No. 215. 

Third, in contrast to the inevitable harm to the government, a stay during the pendency of 

the mandamus petition will not appreciably harm Plaintiffs. Nothing has changed since this case 

was filed that would now require the Court to proceed urgently toward trial. And there is no 

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reason that the Ninth Circuit could not decide this matter quickly. Pausing a few more months to 

verify that the Court has jurisdiction will not materially lengthen the course of this litigation or 

deprive Plaintiffs of any redress. 

Fourth, the public interest strongly favors a stay. The government does not dispute that 

climate change poses a serious threat, nor that addressing climate change requires the active 

involvement of the federal government. See generally Exec. Order 14,008, Tackling the Climate 

Crisis at Home and Abroad, 86 Fed. Reg. 7619 (Jan. 27, 2021). But observance of constitutional 

requirements—and constitutional boundaries—is also a paramount value in a democratic 

republic. And fidelity to the Constitution requires that the courts, no less than the executive 

branch, comply with the limits on their authority. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 

408 (2013) (observing that the Article III standing requirement serves “to prevent the judicial 

process from being used to usurp the powers of the political branches”); cf. Hawaii v. Trump, 

859 F.3d. 741, 768 (9th Cir. 2017) (affirming that the President’s powers, however broad, “may 

not transgress constitutional limitations” (internal quotation marks and citation omitted)), 

vacated as moot sub nom. Trump v. Hawaii, 138 S. Ct. 377 (2017). Allowing for the orderly—

and authoritative—resolution of this Court’s constitutional jurisdiction, before going forward 

with a far-reaching and unprecedented trial, serves those values. 

CONCLUSION

For the foregoing reasons, the Court should stay all further proceedings in this Court 

pending resolution of the government’s petition for a writ of mandamus. 

Dated: January 18, 2024 Respectfully submitted,

TODD KIM

Assistant Attorney General 

Environment & Natural Resources Division 

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DEFS.’ MOT. FOR A STAY PENDING

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/s/ Sean C. Duffy

GUILLERMO A. MONTERO

SEAN C. DUFFY (NY Bar No. 4103131) 

FRANK J. SINGER (CA Bar No. 227459) 

U.S. Department of Justice 

Environment & Natural Resources Division 

Natural Resources Section

601 D Street NW 

Washington, DC 20004 

Telephone: (202) 305-0445 

Facsimile: (202) 305-0506 

sean.c.duffy@usdoj.gov 

Attorneys for Defendants

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