DEFS.’ RESP. TO PLS.’ NOTICE OF

SUPPLEMENTAL AUTHORITY BARKE V. BANKS

1

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. 

UNITED STATES OF AMERICA, et al., 

 Defendants. 

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

DEFENDANTS’ RESPONSE TO 

PLAINTIFFS’ NOTICE OF 

SUPPLEMENTAL AUTHORITY BARKE 

V. BANKS

(ECF No. 524)

Plaintiffs filed a notice of supplemental authority in which they discuss the Ninth 

Circuit’s decision in Barke v. Banks, 25 F.4th 714, 2022 WL 351239 (9th Cir. Feb. 7, 2022). 

Pls.’ Notice of Suppl. Auth., ECF No. 524 (“Pls.’ Notice”). Relying on Barke, Plaintiffs argue

that when a district court dismisses a case for lack of Article III jurisdiction, (1) it “must be

entered without prejudice,” and (2) Plaintiffs should be given an opportunity to file an amended 

complaint “to correct . . . deficiencies to their complaint” so long as the “amendment is not 
DEFS.’ RESP. TO PLS.’ NOTICE OF

SUPPLEMENTAL AUTHORITY BARKE V. BANKS

2

futile.” Pls.’ Notice 2 (emphasis in original). As already noted in Federal Defendants’ 

opposition to Plaintiffs’ motion for leave to amend, however, Plaintiffs’ proposed amendment is 

indeed futile and should be denied.

In Barke, the district court dismissed a First Amendment challenge by local government 

officials for lack of standing, and denied the plaintiffs leave to amend. Barke, 2022 WL at *4, 6. 

The Ninth Circuit upheld this decision because the plaintiffs had failed to demonstrate that they 

could cure their standing deficiencies in an amended complaint. Id. at *6. The Ninth Circuit 

reversed only the part of the district court’s judgment that purported to dismiss the case with 

prejudice, on grounds that a court “is powerless to reach the merits” when it lacks jurisdiction 

over the claims. Id. (quoting Fleck & Assocs., Inc. v. Phoenix, City of, an Ariz. Mun. Corp., 471 

F.3d 1100, 1106 (9th Cir. 2006)). 

Barke supports the Federal Defendants’ opposition to Plaintiffs’ motion to amend. As in 

Barke, Plaintiffs’ proposed amendment is futile. The Ninth Circuit has made clear that the 

jurisdictional deficiencies it identified in Plaintiffs’ complaint cannot be cured by amendment 

because no plausible injunction capable of remedying the claims is within the powers of a district 

court, and a declaratory judgment would not redress Plaintiffs’ alleged injuries. See Juliana v. 

United States, 947 F.3d 1159, 1170-71 (9th Cir. 2020) (recognizing that Plaintiffs sought both 

injunctive and declaratory relief, and concluding that any conceivable remedy to Plaintiffs’ 

claims would necessarily put the court in the position of passing on a “host of complex policy 

decisions entrusted . . . to the wisdom and discretion of the executive and legislative branches”). 

As in Barke, Plaintiffs’ motion for leave to amend should thus be denied.
DEFS.’ RESP. TO PLS.’ NOTICE OF

SUPPLEMENTAL AUTHORITY BARKE V. BANKS

3

Dated: March 4, 2022 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