IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

EUGENE DIVISION 

KELSEY CASCADIA ROSE JULIANA, 

et al., 

Plaintiffs, 

vs. 

UNITED STATES OF AMERICA, et al., 

Defendants. 

AIKEN, Judge: 

No. 6:15-cv-01517-TC 

ORDER 

On November 10, 2016, this Court issued an opm10n and order denying federal 

defendauts' and intervenor defendants' motions to dismiss (doc. 83). On March 7, 2017, federal 

defendants filed a motion to ce1tify the November 10 opinion and order for immediate appeal, 

pursuant to 28 U.S.C. § 1292(b) (doc. 120). That same day, federal defendants filed a motion to 

stay proceedings in this case pending consideration of the motion to ce1tify and, should the Court 

grant certification, pending resolution of the appeal (doc. 121). On March 10, 2017, intervenor 

defendants joined federal defendants' motions and filed a separate motion seeking certification 

(doc. 122). 

In an April 7, 2017 status conference, Magistrate Judge Coffin denied the request for a 

stay pending consideration of the motions to certify. Doc. 137. On May 1, 2017, Judge Coffin 

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filed Findings and Recommendation ("F&R") recommending this Court deny the motions for 

certification (doc. 146). Judge Coffin also reiterated his denial of the request for a stay. 

Defendants filed objections to both the denial of certification for interlocutory appeal and the 

denial ofa stay (docs. 149, 151, 152). 1 Plaintiffs filed responses (docs. 159, 165, 168). Judge 

Coffin's F&R is now before me pursuant to 28 U.S.C. § 636(b) and Federal Rule of Civil 

Procedure 72. 

As a threshold matter, I note that on June 6, 2017, defendants filed a "notice regarding 

pending motions" (doc. 171). The "notice" documents the government's request for expedited 

review of its motions for a stay and for certification for interlocutory review. It then 

"respectfully requests resolution of [defendants'] two pending motions by Friday, June 9, 2017." 

The notice then states that, "[i]n the absence of such resolution by this Court, the United States 

will seek the aforementioned review and relief in the Court of Appeals." Doc. 171 at 2. 

Defendants have received expedited consideration. This Court generally endeavors to 

provide litigants with a ruling on their dispute within sixty days of the close of briefing on the 

subject. In issuing a thorough and thoughtful F&R just twenty-one days after the close of 

briefing on the motions, Judge Coffin appropriately balanced defendants' desire for an expedited 

decision against the need to reach a careful, correct result in a complex case. Similarly, this 

order is issuing only fourteen days after plaintiffs filed their final response to defendants' 

objections. Even though this Court has plainly been proceeding on an expedited schedule, the 

government reasonably reiterated its request for an expedited final decision, particularly because 

1 All three intervenor defendants have now moved to withdraw from this case. See Docs. 

163, 166, 167. Because Judge Coffin has not yet ruled on those motions, I issue this decision 

having fully considered the arguments raised by all defendants. 

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the parties' in-person status conference, scheduled next week, doubtless will be made more 

productive by the resolution of the pending motions. 

Defendants' threat to run directly to the Ninth Circuit if this Court does not abide by a 

unilaterally imposed "deadline" is another matter. First, whether to grant expedited hearing at all 

is a trial management decision committed to the discretion of the district court. Johnson v. 

Reilly, 349 F.3d 1149, 1156 (9th Cir. 2003). Defendants cited "the significance of the issues 

raised and the burden that discovery is likely to impose" in support of their request for expedited 

consideration. Fed. Defs.' Mot. Certify Order Interlocutory Appeal at 2 (doc. 120). Those 

reasons are insufficient to give defendants any right to expedited consideration at all, much less a 

right to more expedited consideration than the Court already has provided. Second, the 

government's belief that it is legally entitled to an immediate ruling on a motion it submitted 

three months ago is rather ironic given that it waited four months to file the request for 

interlocutory certification in the first place.2 

Turning to the F&R, I first consider the appropriate standard of review. Although the 

parties agree that Judge Coffin's denial of the request for a stay is reviewed for clear error, they 

disagree over the standard of review applicable to the recommendation to deny certification of 

the November 10 opinion and order for interlocutory review. Plaintiffs argue that resolution of a 

motion for ce1iification under 28 U.S.C. § 1292(b) is a pretrial matter that should be reviewed for 

2 Co mis generally reject motions for certification as untimely when they are filed after a 

delay longer than three months. See Abbey v. United States, 89 F.3d CL 425, 430-31 (Fed. CL 

2009) (surveying cases and noting that "[d]elays longer than three months have generally been 

found to be untimely and motions to certify interlocutory appeals have been denied"). The 

government attempts to excuse its delay by noting that a new president took office between 

November 10 and March 7 and by citing the complex internal procedures the Department of 

Justice uses to decide whether to file a motion for interlocutory appeal. In reliance on those 

representations, the Court resolves the motion on its merits rather than dismissing it as untimely. 

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clear error. Defendants respond that de nova is the appropriate standard of review for any 

portion of an F&R to which a party has filed an objection. 

Defendants are incorrect that de nova applies as a blanket standard to any matter resolved 

in an F&R.3 The question of which standard to apply to a district judge's review of a magistrate 

judge's recommendation regarding 1292(b) certification presents a difficult and novel question 

of statutory interpretation. Compare 28 U.S.C. § 636(b)(l)(A) (authorizing magistrate judges to 

"hear and dete1mine any pretrial matter pending before the co mt" subject to certain statutory 

exceptions not applicable here, and specifying that a district judge may "reconsider any pretrial 

matter under this subparagraph ... where it has been shown that the magistrate judge's order is 

clearly erroneous or contrary to law") ;vith id § 1292(b) (making certification for interlocutory 

appeal dependent on the "opinion" of the "district judge"). 

I do not find it necessary to resolve the question today, because I would reach the same 

result under either the clear error or de nova standard. I agree with Judge Coffin that 

certification for interlocutory appeal is not warranted in this case. I ADOPT Judge Coffin's F&R 

(doc. 146). Defendants' motions to certify the November 10 order and opinion for interlocutory 

appeal (docs. 120 & 122) are DENIED. Defendants' request for a stay (doc. 121) is DENIED as 

moot. 

IT IS SO ORDERED. 

D"lol lhi" \3 illy ofJrmc2L ().L.._} 

Ann Aiken 

United States District Judge 

3 Indeed, defendants concede as much by stating that Judge Coffin's denial of their 

request for a stay, also issued through the F&R, is reviewed for clear error. 

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