Defs.’ Mot. for Protective Order & Stay of Discovery i 

Juliana v. United States, No. 6:15-cv-01517-TC 

JEFFREY H. WOOD 

Acting Assistant Attorney General 

Environment & Natural Resources Division 

LISA LYNNE RUSSELL, Chief 

GUILLERMO A. MONTERO, Assistant Chief 

SEAN C. DUFFY (NY Bar No. 4103131) 

MARISSA PIROPATO (MA Bar No. 651630) 

CLARE BORONOW (admitted to MD bar) 

Trial Attorneys 

Natural Resources Section 

601 D Street NW 

Washington, DC 20004 

(202) 305-0445 (Duffy) 

(202) 305-0470 (Piropato) 

sean.c.duffy@usdoj.gov 

marissa.piropato@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-TC 

DEFENDANTS’ MOTION FOR A 

PROTECTIVE ORDER AND FOR A 

STAY OF ALL DISCOVERY 

Expedited Ruling Requested on Motion 

for Stay of All Discovery

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Defs.’ Mot. for Protective Order & Stay of Discovery ii 

Juliana v. United States, No. 6:15-cv-01517-TC 

Defendants hereby move the Court for a protective order and stay of all discovery. 

Discovery is precluded by the Administrative Procedure Act (“APA”) and barred by the 

Constitution. The bases for this motion are more fully set forth in the accompanying 

Memorandum of Law. The United States respectfully requests expedited consideration of its 

motion seeking to stay all discovery. Per Local Rule 7-1(a), the parties have conferred and 

Plaintiffs oppose this motion and the request for expedited consideration. 

Dated: May 9, 2018 Respectfully submitted, 

 JEFFREY H. WOOD 

Acting Assistant Attorney General 

Environment & Natural Resources Division 

/s/ Clare Boronow

LISA LYNNE RUSSELL 

GUILLERMO A. MONTERO 

SEAN C. DUFFY (NY Bar No. 4103131) 

MARISSA PIROPATO (MA Bar No. 651630) 

CLARE BORONOW (admitted to MD bar) 

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 

Case 6:15-cv-01517-AA Document 196 Filed 05/09/18 Page 2 of 29
Defs.’ Mot. for Protective Order & Stay of Discovery i 

Juliana v. United States, No. 6:15-cv-01517-TC 

JEFFREY H. WOOD 

Acting Assistant Attorney General 

Environment & Natural Resources Division 

LISA LYNNE RUSSELL, Chief 

GUILLERMO A. MONTERO, Assistant Chief 

SEAN C. DUFFY (NY Bar. No. 4103131) 

MARISSA A. PIROPATO (MA Bar. No. 651630) 

CLARE BORONOW (admitted to MD bar) 

Trial Attorney 

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 

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-TC 

DEFENDANTS’ MEMORANDUM 

OF LAW IN SUPPORT OF MOTION 

FOR A PROTECTIVE ORDER AND 

FOR A STAY OF ALL DISCOVERY 

 

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Defs.’ Mot. for Protective Order & Stay of Discovery ii 

Juliana v. United States, No. 6:15-cv-01517-TC 

TABLE OF CONTENTS 

INTRODUCTION .......................................................................................................................... 1 

BACKGROUND ............................................................................................................................ 3 

I. The Amended Complaint ........................................................................................ 3 

II. Procedural History .................................................................................................. 5 

LEGAL STANDARD ..................................................................................................................... 7 

ARGUMENT .................................................................................................................................. 8 

I. The Court Should Grant a Protective Order Precluding All Discovery .................. 8 

A. Plaintiffs’ Claims Must Be Reviewed on an Administrative Record ......... 9 

B. Requiring Agencies to Take Policy Positions in Discovery Conflicts 

with the APA’s Provisions Regulating Rulemaking and 

Adjudication .............................................................................................. 14 

C. The Constitutional Separation of Powers Bars Discovery ........................ 16 

II. The Court Should Stay All Discovery Pending Resolution of this Motion 

and Defendants’ Dispositive Motions .................................................................. 19 

CONCLUSION ............................................................................................................................. 20 

 

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Juliana v. United States, No. 6:15-cv-01517-TC 

TABLE OF AUTHORITIES 

Cases

Am. Elec. Power Co. v. Connecticut, 

564 U.S. 410 (2011) ............................................................................................................ 16, 17 

Animal Def. Council v. Hodel, 

840 F.2d 1432 (9th Cir. 1988) .................................................................................................... 7 

Arapaho Tribe v. Ashe, 

92 F. Supp. 3d 1160 (D. Wyo. 2015) ........................................................................................ 12

Camp v. Pitts, 

411 U.S. 138 (1973) .................................................................................................................. 10 

Charlton Mem’l Hosp. v. Sullivan, 

816 F. Supp. 50 (D. Mass. 1993) ........................................................................................ 11, 13 

Cheney v. U.S. Dist. Court for D.C., 

542 U.S. 367 (2004) .................................................................................................................. 18 

Chiayu Chang v. U.S. Citizenship & Immigration Servs., 

254 F. Supp. 3d 160 (D.D.C. 2017) .......................................................................................... 12 

Citizens to Preserve Overton Park v. Volpe, 

411 U.S. 402 (1971) .................................................................................................................. 10 

CMAX, Inc. v. Hall, 

300 F.2d 265 (9th Cir. 1962) ...................................................................................................... 8 

Dickinson v. Zurko, 

527 U.S. 150 (1999) .................................................................................................................. 16 

E. Bridge, LLC v. Chao, 

320 F.3d 84 (1st Cir. 2003) ....................................................................................................... 13 

Evans v. Salazar, 

No. C08-0372-JCC, 2010 WL 11565108 (W.D. Wash. July 7, 2010) ............................... 11, 12 

Fla. Power & Light Co. v. Lorion, 

470 U.S. 729 (1985) .................................................................................................................. 10 

Flast v. Cohen, 

392 U.S. 83 (1968) .................................................................................................................... 18 

Friends of the Earth v. Hintz, 

800 F.2d 822 (9th Cir. 1986) ................................................................................................ 7, 10 

Harvard Pilgrim Health Care of New England v. Thompson, 

318 F. Supp. 2d 1 (D.R.I. 2004) ................................................................................... 11, 12, 13

Havasupai Tribe v. Robertson, 

943 F.2d 32 (9th Cir. 1991) .................................................................................................. 7, 10 

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Defs.’ Mot. for Protective Order & Stay of Discovery iv 

Juliana v. United States, No. 6:15-cv-01517-TC 

Hill Dermaceuticals, Inc. v. FDA, 

709 F.3d 44 (D.C. Cir. 2013) .................................................................................................... 10 

In re SEC ex rel. Glotzer v. Stewart, 

374 F.3d 184 (2d Cir. 2004) ..................................................................................................... 16 

In re United States,

884 F.3d 830 (9th Cir. 2018) .................................................................................. 1, 2, 6, 14, 19 

In re United States, 

138 S. Ct. 443 (2017) ................................................................................................ 2, 3, 4, 8, 20 

Inland Empire Pub. Lands Council v. Glickman, 

911 F. Supp. 431 (D. Mont. 1995) ............................................................................................ 11 

Inland Empire Pub. Lands Council v. Glickman, 

88 F.3d 697 (9th Cir. 1996) ...................................................................................................... 14 

Jarita Mesa Livestock Grazing Assoc. v. U.S. Forest Serv., 

58 F. Supp. 3d 1191 (D.N.M. 2014) ......................................................................................... 12

Jarvis v. Regan, 

833 F.2d 149 (9th Cir. 1987) .................................................................................................... 20 

Ketcham v. U.S. Nat’l Park Serv., 

No. 16-CV-00017-SWS, 2016 WL 4268346 (D. Wyo. Mar. 29, 2016) ............................. 12, 13 

Landis v. N. Am. Co., 

299 U.S. 248 (1936) .................................................................................................................... 8 

Lands Council v. Powell, 

395 F.3d 1019 (9th Cir. 2005) .................................................................................................. 11 

Lockyer v. Mirant Corp., 

398 F.3d 1098 (9th Cir. 2005) .................................................................................................... 8 

Lujan v. Nat’l Wildlife Fed’n, 

497 U.S. 871 (1990) .............................................................................................................. 9, 13 

Matera v. Google Inc., 

No. 15-CV-04062-LHK, 2016 WL 454130 (N.D. Cal. Feb. 5, 2016) .................................. 8, 20 

Nat’l Broad. Co. v. United States, 

319 U.S. 190 (1943) .................................................................................................................. 16 

Ninilchik Traditional Council v. United States, 

227 F.3d 1186 (9th Cir. 2000) .................................................................................................. 16 

Norton v. S. Utah Wilderness, 

All., 542 U.S. 55 (2004) ............................................................................................................ 13 

Perez v. Mortg. Bankers Ass’n, 

135 S. Ct. 1199 (2015) ........................................................................................................ 14, 15 

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Defs.’ Mot. for Protective Order & Stay of Discovery v 

Juliana v. United States, No. 6:15-cv-01517-TC 

Pres. Endangered Areas of Cobb’s History (P.E.A.C.H.) v. U.S. Army Corps of Eng’rs, 87 F.3d 

1242 (11th Cir. 1996) ................................................................................................................ 11 

Pres. Endangered Areas of Cobb’s History (P.E.A.C.H.) v. U.S. Army Corps of Eng’rs, 

915 F. Supp. 378 (N.D. Ga. 1995) ............................................................................................ 11 

Public Citizen v. U.S. Dep’t of Justice, 

491 U.S. 440 (1989) .................................................................................................................. 18 

Rutman Wine Co. v. E. & J. Gallo Winery, 

829 F.2d 729 (9th Cir. 1987) ................................................................................................ 8, 19 

Sinclair Ref. Co. v. Jenkins Petroleum Process Co., 

289 U.S. 689 (1933) .................................................................................................................. 19 

Sw. Ctr. for Biological Diversity v. U. S. Forest Serv., 

100 F.3d 1443 (9th Cir. 1996) .................................................................................................. 11 

Tagg Bros. & Moorhead v. United States, 

280 U.S. 420 (1930) .................................................................................................................. 16 

Unemployment Comp. Comm’n of Alaska v. Aragon, 

329 U.S. 143 (1946) .................................................................................................................. 16 

United States v. Carlo Bianchi & Co., 

373 U.S. 709 (1963) .................................................................................................................. 16 

United States v. Nixon, 

418 U.S. 683 (1974) .................................................................................................................. 17 

Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 

435 U.S. 519 (1978) .................................................................................................................. 14 

W. Radio Servs. Co. v. U.S. Forest Serv., 

578 F.3d 1116 (9th Cir. 2009) .................................................................................................... 9 

Wash. State Farm Bureau v. Marshall, 

625 F.2d 296 (9th Cir. 1980) .................................................................................................... 10 

Webster v. Doe, 

486 U.S. 592 (1988) .................................................................................................................. 11 

Wong Yang Sung v. McGrath, 

339 U.S. 908 (1950) .................................................................................................................. 14 

Wood v. McEwen, 

644 F.2d 797 (9th Cir. 1981) ................................................................................................ 8, 19 

Youngstown Sheet & Tube Co. v. Sawyer, 

343 U.S. 579 (1952) .................................................................................................................. 17 

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Defs.’ Mot. for Protective Order & Stay of Discovery vi 

Juliana v. United States, No. 6:15-cv-01517-TC 

Constitution

U.S. CONST. art. II § 1 ................................................................................................................... 17 

U.S. CONST. art. II, cl. 2 ................................................................................................................ 17 

U.S. CONST. art. II § 3 ............................................................................................................. 17, 18 

Statutes

5 U.S.C. § 551(4) .................................................................................................................... 14, 15 

5 U.S.C. § 551(7) .......................................................................................................................... 14 

5 U.S.C. § 553 ......................................................................................................................... 14, 15 

5 U.S.C. § 554 ......................................................................................................................... 14, 15 

5 U.S.C. § 706(2)(B) ..................................................................................................................... 11 

Rules

Fed. R. Civ. P. 26(c) ....................................................................................................................... 1 

Fed. R. Civ. P. 26(c)(1) ................................................................................................................... 7 

Fed. R. Civ. P. 26(c)(1)(A) ............................................................................................................. 7 

Fed. R. Civ. P. 30(b)(6)............................................................................................................. 7, 15 

Other Authorities 

JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, at § 807 (Ronald 

D. Rotunda & John E. Nowak eds., Carolina Acad. Press 1987) (1833).............................17

 

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Defs.’ Mot. for Protective Order & Stay of Discovery 1 

Juliana v. United States, No. 6:15-cv-01517-TC 

INTRODUCTION 

Asserting an unenumerated and unprecedented constitutional right to particular climate 

conditions, Plaintiffs challenge a sweeping array of largely unspecified agency actions, policies, 

and programs related to federal environmental and energy policy over the past several decades. 

They seek to have the Court require the President and eight Executive Branch departments and 

agencies draw up a new policy and then to have the Court impose and enforce that policy. In 

considering Defendants’ petition for a writ of mandamus, the Ninth Circuit observed that “some 

of plaintiffs’ claims as currently pleaded are quite broad, and some of the remedies the plaintiffs 

seek may not be available as redress.” In re United States, 884 F.3d 830, 837 (9th Cir. 2018). 

The court instructed that “the district court needs to consider those issues further in the first 

instance,” adding that “[c]laims and remedies often are vastly narrowed as litigation proceeds” 

and that the court had “no reason to assume this case will be any different.” Id. at 838. In the 

meantime, the court also observed that the defendants “may seek protective orders, as 

appropriate, under Federal Rule of Civil Procedure 26(c).” Id. at 835. 

Plaintiffs have now served Defendants with a new round of discovery requests, including 

requests to depose representatives of two federal executive agencies under Rule 30(b)(6), and 

Plaintiffs have informed Defendants that further requests will follow. As contemplated by the 

Ninth Circuit, Defendants now object to Plaintiffs’ discovery requests and move for a protective 

order precluding all discovery. Such an order is justified for three reasons—in addition to the 

fundamental flaws in this suit that Plaintiffs’ claims are nonjusticiable and that the 

unprecedented, sweeping constitutional right they assert has no foundation in the text or purposes 

of the Due Process Clause or in the history of the Nation. First, Plaintiffs’ challenges to federal 

agency actions are governed by the Administrative Procedure Act (“APA”), and—with 

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Juliana v. United States, No. 6:15-cv-01517-TC 

exceptions not relevant here—judicial review in APA cases is limited to the administrative 

record. Second, the APA’s carefully constructed provisions governing notice-and-comment 

rulemaking and administrative adjudication, together with the respective departments and 

agencies’ organic statutes establishing their respective authorities, foreclose any prospect for the 

Court to require the Defendant agencies and officials to take public policy positions or make 

factual assessments on matters concerning climate change through depositions, requests for 

admission, or other forms of discovery in this suit. Those provisions also foreclose an 

adjudication of these factual and policy issues in this suit against those agencies or their officials, 

outside the procedures prescribed by Congress for matters within their jurisdiction to be 

resolved. Finally, even if discovery in this case were not precluded by the APA, it would be 

barred by the Constitution, because Plaintiffs’ attempt to elicit positions and proposals from 

executive agency officials on questions of public policy would invade the President’s exclusive 

constitutional authority to supervise the Executive Branch, require the opinions of his principal 

officers, and formulate policy recommendations. 

Because Defendants’ proposed protective order would preclude all discovery in the case, 

Defendants ask this Court to stay discovery pending resolution of this motion. In addition, and 

consistent with the Ninth Circuit’s expectation that the claims in this case would be “vastly 

narrowed,” In re United States, 884 F.3d at 838, Defendants have moved for judgment on the 

pleadings (“MJOP”) and will soon move for summary judgment, as the Ninth Circuit also 

contemplated, see id. at 836. Because a favorable ruling on either of those dispositive motions 

would eliminate the need for any discovery, Defendants also ask this Court to stay all discovery 

pending resolution of those motions. See In re United States, 138 S. Ct. 443, 444 (2017). 

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Defs.’ Mot. for Protective Order & Stay of Discovery 3 

Juliana v. United States, No. 6:15-cv-01517-TC 

BACKGROUND 

I. The Amended Complaint 

As the Court has recognized, Plaintiffs’ claims are “unprecedented.” ECF No. 83 at 52. 

Plaintiffs assert an unenumerated and previously unimagined constitutional right to a “climate 

system capable of sustaining human life.” Id. They ask this Court to order President Obama 

(and now President Trump), the Executive Office of the President, and eight federal agencies to 

“prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions 

and draw down excess atmospheric CO2.” ECF No. 7 (“Am. Compl.”), Prayer for Relief ¶ 7. 

Plaintiffs claim that Defendants have known about the risks of climate change “for decades” but 

have nevertheless “continued to permit, authorize, and subsidize fossil fuel extraction, 

development, consumption, and exportation—activities producing enormous quantities of CO2

emissions that have substantially caused or contributed to the increase in the atmospheric 

concentration of CO2.” Am. Compl. ¶¶ 5-7. With one exception, Plaintiffs do not identify or 

challenge specific agency actions, but instead challenge what they term the Defendants’ 

“affirmative aggregate actions.” Id. ¶¶ 1, 5, 44, 129, 163, 281.1

Plaintiffs predicate their demands on the Due Process Clause of the Fifth Amendment, 

equal protection principles in the Fifth Amendment, unenumerated rights reserved by the Ninth 

Amendment, and an asserted “public trust” duty, invoking an infrequently used doctrine under 

state law whose principal purpose has been to govern state property rights in lands submerged 

beneath tidal and navigable waterways. Specifically, Plaintiffs complain that (1) the agencies 

                                                            

1

 Plaintiffs allege that the Jordan Cove LNG Terminal in Coos Bay, Oregon will produce 

significant greenhouse gas emissions that will harm Plaintiffs. Am. Compl. ¶¶ 198-201. As 

explained below and in Defendants’ motion for judgment on the pleadings, any cognizable 

challenge to agency action regarding the Jordan Cove Terminal must be raised in the court of 

appeals. See MJOP 16-17 & n.3. 

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Juliana v. United States, No. 6:15-cv-01517-TC 

have taken “deliberate actions” that have “cumulatively resulted in dangerous levels of 

atmospheric CO2, which deprive Plaintiffs of their fundamental right to life, liberty, and 

property,” Am. Compl. ¶ 280; (2) Plaintiff youths are a protected class and, as such, are 

discriminated against by laws and actions that “favor the present, temporary economic benefits 

of certain citizens, especially corporations, over Plaintiffs’ rights to life, liberty, and property,” 

id. ¶¶ 294, 301; (3) Defendants have infringed on Plaintiffs’ “right to be sustained by our 

country’s vital natural systems, including our climate system,” and their “right to a stable climate 

system,” which are “implicit liberties protected from government intrusion by the Ninth 

Amendment,” id. ¶¶ 303-04; and (4) Defendants have “failed in their duty of care as trustees to 

manage the atmosphere in the best interests of the present and future beneficiaries,” including 

Plaintiffs, id. ¶ 310. 

Plaintiffs seek a declaration that Defendants have violated their constitutional rights and 

the supposed public trust described above, that Section 201 of the Energy Policy Act is 

unconstitutional on its face, and that DOE/FE Order No. 3041 is unconstitutional as applied. Id., 

Prayer for Relief ¶¶ 1, 3-5. They also seek an injunction prohibiting Defendants from future 

violations of the Constitution and alleged public trust obligations, and they ask the Court to order 

Defendants to “prepare a consumption-based inventory of U.S. CO2 emissions,” and “prepare 

and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw 

down excess atmospheric CO2.” Id., Prayer for Relief ¶¶ 2, 6-7. They request that the Court 

retain jurisdiction over the case for an indefinite period of time to monitor the government’s 

compliance with the “national remedial plan.” Id., Prayer for Relief ¶ 8. Plaintiffs indicate that 

“[g]lobal atmospheric CO2 concentrations must be reduced to below 350 [parts per million] by 

the end of the century,” Am. Compl. ¶ 257, a goal that would require a “global reduction in CO2

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Defs.’ Mot. for Protective Order & Stay of Discovery 5 

Juliana v. United States, No. 6:15-cv-01517-TC 

emissions of at least 6% per year, alongside approximately 100 gigatons of carbon drawdown 

this century from global reforestation and improved agriculture.” Id. ¶ 258. 

II. Procedural History 

In November 2015, Defendants moved to dismiss Plaintiffs’ claims on several grounds, 

including lack of standing, failure to state a cognizable constitutional claim, and failure to state a 

claim on a public trust theory. ECF No. 27. The magistrate judge recommended that the Court 

deny the motion. ECF No. 68. Defendants objected to the magistrate judge’s recommendations. 

ECF No. 74. The Court adopted the magistrate judge’s recommendations and denied 

Defendants’ motion to dismiss. ECF No. 83. 

On March 7, 2017, Defendants moved to certify the Court’s order for interlocutory 

appeal. ECF No. 120. The magistrate judge recommended that the Court deny the motion. ECF 

No. 146. Defendants objected to the magistrate judge’s findings and recommendations, ECF No. 

149, but the Court adopted them and denied the motion on June 8, 2017. ECF No. 172. The 

next day, Defendants petitioned for a writ of mandamus in the Ninth Circuit, arguing that the 

Court erred rejecting the contention that Plaintiffs’ claims are nonjusticiable and in finding that 

Plaintiffs have judicially enforceable rights in the climate, and that mandamus was the only 

means of obtaining timely and effective relief. ECF No. 177-1. 

On December 11, 2017, the Ninth Circuit heard argument on mandamus petition. The 

panel members expressed skepticism about the breadth of plaintiffs’ claims. As Judge Berzon 

put it, “I would hope that if this case did go forward, that it would be pared down and focused 

and directed at particular orders and agencies.” Oral Arg. Recording at 11:23-11:33, United 

States v. U.S. Dist. Court for Dist. of Or., No. 17-71692 (9th Cir. Dec. 11, 2017), 

https://www.ca9.uscourts.gov/media/. 

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Juliana v. United States, No. 6:15-cv-01517-TC 

On March 7, 2018, the Ninth Circuit denied Defendants’ mandamus petition without 

prejudice. In re United States, 884 F.3d at 838. The court recognized that “some of plaintiffs’ 

claims as currently pleaded are quite broad, and some of the remedies the plaintiffs seek may not 

be available as redress.” Id. at 837. The court “also underscore[d] that this case is at a very early 

stage, and that the defendants have ample opportunity to raise legal challenges to decisions made 

by the district court on a more fully developed record, including decisions as to whether to focus 

the litigation on specific governmental decisions and orders.” Id. The court added that “[c]laims 

and remedies often are vastly narrowed as litigation proceeds” and that the court had “no reason 

to assume this case will be any different.” Id. at 838. Ultimately, however, the court “decline[d] 

to exercise [its] discretion to grant mandamus relief at [that] stage of the litigation[,]” in part 

because no discovery requests had yet been filed. Id. at 835, 838. The court reiterated that 

Defendants could continue to “raise and litigate any legal objections they have,” including by 

challenging future discovery orders, “seeking mandamus in the future,” or “asking the district 

court to certify orders for interlocutory appeal of later rulings.” Id. at 835-38. 

The district court has ordered the parties to proceed with discovery, and has set trial for 

October 29, 2018. ECF Nos. 181, 189, 192. In April 2018, Plaintiffs served Defendants with 17 

expert reports. On May 4, 2018, Plaintiffs served more than 100 Requests for Admissions and 

Rule 30(b)(6) notices on two named agency defendants, the United States Department of 

Agriculture (“USDA”) and Department of the Interior (“DOI”). These RFAs are broad in scope, 

seeking admissions in certain cases dating back to the 1960s on matters that are not purely 

factual but extend to topics such as policy opinions on whether certain resources are at risk and 

admissions concerning “cultural services” such as “spiritual renewal and, aesthetic enjoyment.” 

See, e.g., ECF No. 194-3 at 16-17; ECF No. 194-4 at 29. Among the topics noticed for the 

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Juliana v. United States, No. 6:15-cv-01517-TC 

30(b)(6) depositions, Plaintiffs requested the United States to designate a witness to respond to 

“any analysis or evaluation” related to “atmospheric CO2 concentrations, climate change targets, 

or greenhouse gas emissions” that “would avoid endangerment of human health and welfare for 

current and future generations . . . .” Ex. A at 6 (Pls.’ FRCP 30(b)(6) Notice of Deposition – 

Def. Dep’t of Interior); Ex. B at 6 (Pls.’ FRCP 30(b)(6) Notice of Deposition – Def. Dep’t of 

Agric.). Plaintiffs further noticed a topic concerning the role of DOI and USDA in implementing 

President Trump’s energy policy. Plaintiffs have not yet served any revised discovery requests 

on the other agency defendants, including the EPA and Department of Energy, against whom 

Plaintiffs focus many of the allegations in the Amended Complaint, but Plaintiffs have informed 

Defendants that they anticipate serving additional discovery requests in the weeks ahead.2 

LEGAL STANDARD

A protective order should be granted when the moving party establishes “good cause” for 

the order and justice requires “an order to protect a party or person from annoyance, 

embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). The 

authority of the Court under Rule 26(c) includes the ability to enter an order “forbidding the 

disclosure or discovery” altogether. Fed. R. Civ. P. 26(c)(1)(A); see Havasupai Tribe v. 

Robertson, 943 F.2d 32, 34 (9th Cir. 1991). The Ninth Circuit has routinely upheld protective 

orders precluding all discovery in cases governed by the APA’s record-review rule. See id.; 

Animal Def. Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir. 1988), amended by 867 F.2d 1244 

(9th Cir. 1989); Friends of the Earth v. Hintz, 800 F.2d 822, 827-29 (9th Cir. 1986). 

                                                            

2 The United States is still analyzing the discovery propounded on May 4, 2018. This motion 

focuses on the propriety of discovery generally and in no way waives the United States’ right to 

seek a protective order directed at the specific requests propounded on May 4, 2018, or any 

future discovery Plaintiffs may propound. 

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Juliana v. United States, No. 6:15-cv-01517-TC 

Federal courts likewise have broad discretion to control their dockets by staying 

proceedings. See, e.g., Landis v. N. Am. Co., 299 U.S. 248, 254 (1936); Lockyer v. Mirant Corp., 

398 F.3d 1098, 1109 (9th Cir. 2005). In determining whether to grant a stay, courts weigh the 

“competing interests which will be affected by the granting or refusal to grant a stay,” including 

“the possible damage which may result from the granting of a stay, the hardship or inequity 

which a party may suffer in being required to go forward, and the orderly course of justice 

measured in terms of the simplifying or complicating of issues, proof, and questions of law 

which could be expected to result from a stay.” See Lockyer, 398 F.3d at 1110 (quoting CMAX, 

Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962)). Courts regularly stay discovery pending 

decisions on other motions that would moot the need for discovery, including dispositive 

motions or motions for a protective order precluding all discovery. See, e.g., Rutman Wine Co. 

v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987); Wood v. McEwen, 644 F.2d 797, 

801-02 (9th Cir. 1981); Matera v. Google Inc., No. 15-CV-04062-LHK, 2016 WL 454130, at *2 

(N.D. Cal. Feb. 5, 2016); see also In re United States, 138 S. Ct. at 444. 

ARGUMENT

I. The Court Should Grant a Protective Order Precluding All Discovery 

In addition to the grounds previously raised by Defendants and renewed here concerning 

the nonjusticiability of the suit and the absence of any judicially enforceable rights in the Earth’s 

climate under the Constitution or an asserted “public trust,” this Court should grant a protective 

order for any or all of three reasons. First, Plaintiffs’ challenges to agency actions and inaction 

are governed by the APA, which—with exceptions not relevant here—limits judicial review to 

the administrative record and therefore precludes and obviates the need for any discovery. 

Second, the APA’s carefully constructed provisions governing notice-and-comment rulemaking 

and administrative adjudication, together with the respective departments and agencies’ organic 

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statutes establishing their respective authorities, foreclose any prospect for the Court to require 

the Defendant agencies and officials to take public policy positions or make factual assessments 

on matters concerning climate change through depositions, requests for admission, or other 

forms of discovery in this suit. Those provisions also foreclose an adjudication of these factual 

and policy issues in this suit against those agencies or their officials, outside the procedures 

prescribed by Congress for matters within their jurisdiction to be resolved. Third, even if 

discovery in this case were not precluded by the APA, it would be barred by the Constitution, 

because Plaintiffs’ attempt to elicit positions and proposals from executive agency officials on 

questions of public policy would invade the President’s exclusive constitutional authority to 

supervise the Executive Branch, require the opinions of his principal officers, and formulate 

policy recommendations. 

A. Plaintiffs’ Claims Must Be Reviewed on an Administrative Record

 As explained in detail in Defendants’ motion for judgment on the pleadings, Plaintiffs 

ultimately challenge administrative agency actions and inaction, and their claims are therefore 

cognizable only under the APA, which Congress established as the exclusive mechanism to seek 

judicial review of agency actions and inactions of the kind that underlie Plaintiffs’ claims. See

MJOP 11-16 W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1122-23 (9th Cir. 2009). 

And review may be sought under the APA only by challenging discrete agency action, not on a 

broad programmatic (much less Executive-Branch-wide) basis. See Lujan v. Nat’l Wildlife 

Fed’n, 497 U.S. 871, 891 (1990).3

 

                                                            

3 Other statutes, such as Section 307 of the Clean Air Act, may also provide relevant rights of 

action to challenge agency actions that regulate or otherwise relate to greenhouse gas 

emissions. But Plaintiffs do not invoke any such statutory right of action.

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 Because Plaintiffs’ claims must proceed under the APA, they are not entitled to conduct 

discovery of Defendants. It is a “fundamental principle[] of judicial review of agency action” 

that review must be based on “the administrative record already in existence, not some new 

record made initially in the reviewing court.” Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 

743 (1985) (citing Camp v. Pitts, 411 U.S. 138, 142 (1973)). “The task of the reviewing court is 

to apply the appropriate APA standard of review to the agency decision based on the record the 

agency presents to the reviewing court.” Id. at 743-744 (citation omitted). “The reviewing court 

is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to 

reach its own conclusions based on such an inquiry.” Id. at 744. “The factfinding capacity of 

the district court is thus typically unnecessary to judicial review of agency decisionmaking.” Id.; 

see Citizens to Preserve Overton Park v. Volpe, 411 U.S. 402, 420 (1971). 

 The rule that APA claims must be reviewed based on the administrative record, and that 

APA plaintiffs are therefore not entitled to discovery, is “black-letter administrative law,” Hill 

Dermaceuticals, Inc. v. FDA, 709 F.3d 44, 47 (D.C. Cir. 2013), and it has been enforced 

repeatedly by the Ninth Circuit, including in environmental cases like this one. See, e.g.,

Havasupai, 943 F.2d at 34 (affirming district court’s limitation on the scope of its review to the 

administrative record and barring discovery); Friends of the Earth, 800 F.2d at 827-29 (affirming 

district court’s order quashing litigation depositions on ground that review was limited to the 

administrative record); Wash. State Farm Bureau v. Marshall, 625 F.2d 296, 305 (9th Cir. 1980) 

(holding that district court should have limited its review to evidence before the agency at the 

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time of the decision); see also Lands Council v. Powell, 395 F.3d 1019, 1029 (9th Cir. 2005) 

(reiterating rule while resolving case on other grounds).4

 District courts, moreover, have often implemented the record-review rule by issuing 

protective orders under Rule 26(c), as Defendants ask the Court to do here. See, e.g., Evans v. 

Salazar, No. C08-0372-JCC, 2010 WL 11565108, at *2 (W.D. Wash. July 7, 2010); Inland 

Empire Pub. Lands Council v. Glickman, 911 F. Supp. 431, 437 (D. Mont. 1995), aff’d, 88 F.3d 

697 (9th Cir. 1996); see also Harvard Pilgrim Health Care of New England v. Thompson, 318 F. 

Supp. 2d 1, 8 (D.R.I. 2004); Pres. Endangered Areas of Cobb’s History (P.E.A.C.H.) v. U.S. 

Army Corps of Eng’rs, 915 F. Supp. 378, 383-84 (N.D. Ga. 1995), aff’d, 87 F.3d 1242 (11th Cir. 

1996); Charlton Mem’l Hosp. v. Sullivan, 816 F. Supp. 50, 51 (D. Mass. 1993). 

Plaintiffs’ assertion of constitutional claims does not make their case any less of a 

challenge to agency action or remove it from the scope of the APA’s procedural rules, including 

the record-review rule. As explained in Defendants’ motion for judgment on the pleadings, 

Section 706(2)(B) of the APA expressly contemplates judicial review of constitutional 

challenges to agency action when it directs a reviewing court to hold unlawful agency action that 

is “contrary to constitutional right, power, privilege, or immunity,” 5 U.S.C. 706(2)(B), and the 

Supreme Court has decided constitutional claims under the APA, see, e.g., Webster v. Doe, 486 

U.S. 592, 603-04 (1988). MJOP 11-16. Numerous district courts have recognized that 

                                                            

4

 The Ninth Circuit has allowed extra-record review or limited discovery in only four narrow 

circumstances: (1) when the agency has failed to explain its actions so as to frustrate judicial 

review; (2) when it appears that the agency has relied on documents or materials not included in 

the administrative record; (3) when necessary to explain technical terms or complex subject 

matter involved in the agency action; or (4) when there is a strong showing of bad faith or 

improper behavior by the agency. Sw. Ctr. for Biological Diversity v. U. S. Forest Serv., 100 

F.3d 1443, 1450 (9th Cir. 1996). Even if those are all valid exceptions, but see Overton Park, 

411 U.S. at 420 (contemplating narrower exception), none of them is implicated here. 

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constitutional challenges to agency action are just as strictly governed by the record-review rule 

as are statutory challenges. See, e.g., Chiayu Chang v. U.S. Citizenship & Immigration Servs., 

254 F. Supp. 3d 160, 161-62 (D.D.C. 2017) (denying motion for discovery outside the 

administrative record); Ketcham v. U.S. Nat’l Park Serv., No. 16-CV-00017-SWS, 2016 WL 

4268346, at *1 (D. Wyo. Mar. 29, 2016) (denying motion objecting to filing of the 

administrative record); N. Arapaho Tribe v. Ashe, 92 F. Supp. 3d 1160, 1170–71 (D. Wyo. 2015) 

(granting motion to strike extra-record evidence); Harvard Pilgrim Health Care, 318 F. Supp. 2d 

at 8 (affirming magistrate judge’s grant of a protective order); Jarita Mesa Livestock Grazing 

Assoc. v. U.S. Forest Serv., 58 F. Supp. 3d 1191, 1199, 1237 (D.N.M. 2014) (granting motion to 

preclude discovery outside the administrative record); Evans v. Salazar, No. C08-0372-JCC, 

2010 WL 11565108, at *2 (W.D. Wash. July 7, 2010) (granting protective order). 

The district court’s decision in Chiayu Chang is illustrative. There, the plaintiffs 

challenged the government’s denial of their visa petitions, alleging retroactivity, due process, and 

equal protection claims. 254 F. Supp. 3d at 161. The plaintiffs moved for discovery, arguing 

“that the constitutional or ‘non-APA’ nature of their [claims] exempts them from the record 

review rule because those claims are brought under the court’s ‘equitable power’ and the 

Constitution rather than under the APA.” Id. at 161. The court rejected this tactic, holding that 

“discovery on plaintiffs’ equal protection and due process claims is not appropriate.” Id. at 162. 

“To hold otherwise,” the court reasoned, “would ‘incentivize every unsuccessful party to agency 

action to allege . . . constitutional violations’ in order to ‘trade in the APA’s restrictive 

procedures for the more evenhanded ones of the Federal Rules of Civil Procedure.’” Id. at 161-

62 (quoting Jarita Mesa, 58 F. Supp. 3d at 1238). 

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Similarly, in Ketcham, plaintiffs sought declaratory and injunctive relief against the 

National Park Service for allegedly violating plaintiffs’ First Amendment right by denying public 

access to areas in Yellowstone National Park where the government was culling bison. 2016 WL 

4268346, at *1. After the government filed an administrative record with the court, the plaintiffs 

objected, “asserting the Court should respect their decision to bring this action as a constitutional 

claim rather than an APA claim.” Id. Like the court in Chiayu Chang, the court in Ketcham

rejected plaintiffs’ tactic, reasoning that “[t]o distinguish between a ‘stand-alone constitutional 

challenge’ and an ‘APA challenge,’ as urged by Plaintiffs, would run afoul of Congress’s intent.” 

Id. at *2; accord, e.g., E. Bridge, LLC v. Chao, 320 F.3d 84, 91 (1st Cir. 2003) (“[T]he present 

constitutional claim is really just a recharacterization of their administrative claim, and we will 

not allow plaintiffs to circumvent the statutory review process with an agile game of word 

play.”); Harvard Pilgrim, 318 F. Supp. 2d at 10 (“The APA’s restriction of judicial review to the 

administrative record would be meaningless if any party seeking review based on statutory or 

constitutional deficiencies was entitled to broad-ranging discovery.”); Charlton Mem’l Hosp., 

816 F. Supp. at 51 (granting a protective order because “counts alleging violations of the Equal 

Protection Clause ... cannot so transform the case that it ceases to be primarily a case involving 

judicial review of agency action”). 

In sum, the need to protect Defendants from undue and unlawful discovery in violation of 

the APA’s record-review requirement readily justifies the grant of a protective order under Rule 

26(c). As explained in Defendants’ motion for judgment on the pleadings, Plaintiffs have not yet 

identified any “discrete” final agency actions properly subject to challenge in this Court. Norton 

v. S. Utah Wilderness All., 542 U.S. 55, 62, 64 (2004); see Lujan, 497 U.S. at 891; MJOP 16-22. 

If Plaintiffs identify any such discrete agency action—perhaps by amending their complaint as 

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Juliana v. United States, No. 6:15-cv-01517-TC 

part of “vastly narrow[ing]” their claims, as the Ninth Circuit envisioned, In re United States, 

884 F.3d at 838—and if Plaintiffs’ claims are otherwise cognizable and not dismissed on some 

other ground, the appropriate agency would compile an administrative record as part of the 

judicial review of that action. 

B. Requiring Agencies to Take Policy Positions in Discovery Conflicts 

 with the APA’s Provisions Regulating Rulemaking and Adjudication

A protective order is also justified because the discovery envisioned by Plaintiffs 

conflicts with the APA in another way: Requiring federal agencies to take positions on policy 

questions through depositions and requests for admission would violate the APA’s carefully 

articulated scheme for agencies to make factual assessments and policy determinations through 

rulemaking and adjudication in matters within their jurisdiction. 

The APA sets forth a “comprehensive regulation of procedures” for agency decisionmaking. Wong Yang Sung v. McGrath, 339 U.S. 33, 36 modified, 339 U.S. 908 (1950). The 

APA defines a “rule” to mean “the whole or a part of an agency statement of general or 

particular applicability and future effect designed to implement, interpret, or prescribe law or 

policy or describing the organization, procedure, or practice requirements of an agency.” 5 

U.S.C. § 551(4). “[A]djudication” means “agency process for the formulation of an order,” id.

§ 551(7), which in turn “means the whole or a part of a final disposition, whether affirmative, 

negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but 

including licensing,” id. § 551(6). The APA then prescribes detailed and mandatory procedures 

for agencies to follow in rulemaking and formal adjudication. See 5 U.S.C. §§ 553, 554. 

“Time and again,” the Supreme Court has explained that the APA establishes the 

exclusive procedural requirements for agency decisionmaking, and the courts are not free to alter 

those requirements. Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1207 (2015); see Vt. 

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Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 546 (1978). To 

require agencies to comply with discovery seeking official positions on matters of factual 

assessment and questions of policy would, however, impermissibly conflict with the procedures 

prescribed by the APA and deprive the public of the ability to provide input where the APA’s 

rulemaking provisions or agency procedures require. Consistent with Plaintiffs’ stated aims of 

probing the Executive Branch’s policies on climate change, Plaintiffs’ discovery requests have 

asked (and surely will continue to ask) the agencies to make factual assessments and statements 

on numerous complex and controversial policy issues in an effort to have them craft, and the 

Court enforce, an “enforceable national remedial plan to phase out fossil fuel emissions and draw 

down excess atmospheric CO2.” Am. Compl., Prayer for Relief ¶ 7. The responses of agency

officials to such questions on behalf of their agencies, see Fed. R. Civ. P. 30(b)(6), could in 

many cases fall within the broad definitions of “rule” and “adjudication” provided by the APA, 

see 5 U.S.C. § 551(4), (7), for matters that Congress has committed to the agencies. Yet they 

would be offered by individual deponents, without public input from other stakeholders or any of 

the relevant orderly procedures of agency decisionmaking contemplated by the APA. See 5 

U.S.C. §§ 553, 554. These and similar required responses to discovery thus would be in direct 

contravention of Congress’s judgment in the APA and the agencies’ respective organic statutes 

to vest such determinations in the agencies’ administrative processes in the first instance. 

Indeed, beyond discovery, a trial on such matters against the Defendant agencies (much less the 

President) would be fundamentally inconsistent with the APA and the agencies’ organic statutes. 

Plaintiffs thus seek to force the agencies to do something that the APA forbids and is 

beyond this Court’s authority to require. Just as this Court cannot expand the APA’s procedural 

requirements, see Perez, 135 S. Ct. at 1207, it likewise cannot authorize their violation. See, e.g., 

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Juliana v. United States, No. 6:15-cv-01517-TC 

In re SEC ex rel. Glotzer v. Stewart, 374 F.3d 184, 188-192 (2d Cir. 2004) (refusing to authorize 

discovery request directed at federal agency that violated APA requirements); cf. Am. Elec. 

Power Co. v. Connecticut (AEP), 564 U.S. 410, 428 (2011) (noting, in rejecting climate-changerelated claim, that courts “may not . . . issue rules under notice-and-comment procedures”). A 

protective order precluding discovery against the agencies is accordingly warranted. 

 C. The Constitutional Separation of Powers Bars Discovery 

Finally, even apart from the requirements of the APA, the Constitution’s separation of 

powers bars the discovery that Plaintiffs envision here. Even before the enactment of the APA, 

the Supreme Court recognized that permitting an agency’s “findings to be attacked or supported 

in court by new evidence would substitute the court for the administrative tribunal[,]” Tagg Bros. 

& Moorhead v. United States, 280 U.S. 420, 444 (1930), a step that would improperly allow the 

court to “usurp[] the agency’s function[,]” Unemployment Comp. Comm’n of Alaska v. Aragon, 

329 U.S. 143, 155 (1946); see also Nat’l Broad. Co. v. United States, 319 U.S. 190, 227 (1943) 

(stating that “[t]he court below correctly held that its inquiry was limited to review of the 

evidence before the Commission” in a challenge to agency action under the First Amendment). 

Moreover, “in cases where Congress has simply provided for review, without setting forth the 

standards to be used or the procedures to be followed,” the Supreme Court “has held that 

consideration is to be confined to the administrative record and that no de novo proceeding may 

be held.” United States v. Carlo Bianchi & Co., 373 U.S. 709, 715 (1963); see also Dickinson v. 

Zurko, 527 U.S. 150, 155 (1999); Ninilchik Traditional Council v. United States, 227 F.3d 1186, 

1194 (9th Cir. 2000) (explaining that APA judicial review provisions “function[] as a default 

judicial review standard”). 

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 Limiting review of agency action to the agency record reflects fundamental separation of 

powers principles. A fortiori, this suit, in which Plaintiffs seek discovery in aid of requiring the 

Defendant agencies (and the President) to develop and implement a comprehensive, governmentwide climate policy, without regard to the agencies’ existing statutory authorities, trenches even 

more fundamentally on the separation of powers. The Constitution provides that “the executive 

power shall be vested in a President of the United States.” U.S. CONST. art. II, § 1. As part of the 

executive power, the “President and those who assist him must be free to explore alternatives in 

the process of shaping policies and making decisions and to do so in a way many would be 

unwilling to express except privately.” United States v. Nixon, 418 U.S. 683, 708 (1974). That 

principle is also reflected in the Opinion Clause of the Constitution, which vests in the President 

the exclusive power 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 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 641 n.9 (1952) 

(Jackson, J., concurring) (describing President’s power under the Opinion Clause). The 

Recommendations Clause of the Constitution similarly vests the President with power to 

“recommend to” Congress for “Consideration such Measures as he shall judge necessary and 

expedient.” U.S. CONST. art. II, § 3. Like the Opinion Clause, the Recommendations Clause 

presupposes that the President “must possess more extensive sources of information” than the 

other branches. JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, 

at § 807 (Ronald D. Rotunda & John E. Nowak eds., Carolina Acad. Press 1987) (1833). 

 By contrast, courts exercising the judicial power “may not commission scientific studies 

or convene groups of experts for advice,” and accordingly “lack the scientific, economic, and 

technological resources an agency can utilize in coping with” complex policy problems. AEP, 

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564 U.S. at 428. Just as the President may not compel an advisory opinion from a court on a 

question of law, see, e.g., Flast v. Cohen, 392 U.S. 83, 96 n.14 (1968), a court may not compel 

the opinion of an executive official on a question of policy. Similarly, because the President’s 

duty requires him to recommend only what “he shall judge necessary and expedient,” U.S.

CONST. art. II, § 3 (emphasis added), the Constitution makes clear that this exclusively executive 

power must remain free from interference. The Supreme Court has accordingly rejected 

discovery demands that “threaten substantial intrusions on the process by which those in closest 

operational proximity to the President advise the President.” Cheney v. U.S. Dist. Court for 

D.C., 542 U.S. 367, 381 (2004) (internal quotation marks and citation omitted). 

 The discovery sought by Plaintiffs implicates the same separation of powers concerns. 

Plaintiffs seek to probe the views of federal agencies concerning questions of national 

environmental and energy policy and to require them to make factual and predictive judgments 

outside the scope of governing procedures and authority. In the very first revised discovery 

requests served, Plaintiffs sought binding Rule 30(b)(6) deposition testimony seeking the official 

views of federal agencies on their roles in implementing the President’s energy policy, including 

the departments’ “analysis or evaluation” of various issues related to climate change. And this is 

presumably just the beginning. Allowing Plaintiffs to exploit the civil litigation system to 

marshal the policy positions of federal agencies would displace the President as the 

superintendent of the Executive Branch and encroach on his exclusive authority to elicit the 

views of federal agencies in formulating national policies for addressing important issues of 

general concern. Congress may not “encroach[] upon a power that the text of the Constitution 

commits in explicit terms to the President,” Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 

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Juliana v. United States, No. 6:15-cv-01517-TC 

482 (1989) (Kennedy, J., concurring), and neither may the Judiciary. Defendants’ motion for a 

protective order against all discovery should accordingly be granted. 

II. The Court Should Stay All Discovery Pending Resolution of this Motion and 

 Defendants’ Dispositive Motions 

 In addition to requesting a protective order precluding discovery, Defendants also 

respectfully ask this Court to exercise its authority to stay all discovery in light of the substantial 

separation of powers and other legal obstacles discussed above and in the interests of judicial 

economy and avoiding a needless expenditure of resources by both parties. See e.g., Sinclair 

Ref. Co. v. Jenkins Petroleum Process Co., 289 U.S. 689, 693-94 (1933). At a minimum, this 

Court should stay discovery pending resolution of this motion, which—if granted—would mean 

that no discovery is necessary or appropriate. 

 Moreover, the Court should stay discovery pending its resolution of Defendants’ motion 

for judgment on the pleadings, which Defendants have also filed today, and Defendants’ motion 

for summary judgment, which Defendants will file in the near future. See In re United States, 

884 F.3d at 836 (noting that Defendants “still have the usual remedies before the district court 

for nonmeritorious litigation, for example, seeking summary judgment on the claims”). A 

favorable ruling on either of those motions would terminate the litigation and thus eliminate any 

need for discovery. For that reason, district courts have frequently granted—and the Ninth 

Circuit has frequently upheld—stays of discovery while dispositive motions are pending. See, 

e.g., Rutman Wine, 829 F.2d at 738 (“It is sounder practice to determine whether there is any 

reasonable likelihood that plaintiffs can construct a claim before forcing the parties to undergo 

the expense of discovery.”); Wood, 644 F.2d at 801-02 (upholding grant of protective order 

suspending discovery where the legal sufficiency of plaintiff’s complaint was challenged). The 

Supreme Court, moreover, recently granted a stay of discovery while the Ninth Circuit considers 

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Juliana v. United States, No. 6:15-cv-01517-TC 

the government’s dispositive motion in another case challenging Executive Branch policy. See

In re United States, 138 S. Ct. at 444. 

A stay of discovery will not prejudice Plaintiffs. Defendants’ dispositive motions can be 

resolved without discovery, cf. Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987), and only very 

modest discovery has occurred to date, so a stay would not cause any serious disruption, see 

Matera, 2016 WL 454130, at *4. At most, Plaintiffs may complain of a short-term delay. But it 

was Plaintiffs who waited years to bring this suit, and even more years to serve their current 

discovery requests. Thus, any argument of harm arising from a stay would be exceedingly 

strained, at best. The balance of harms tips strongly in Defendants’ favor, and the Court should 

accordingly grant a stay. 

CONCLUSION 

 The Court should grant a protective order precluding all discovery. The Court should also 

stay all discovery pending resolution of this motion and Defendant’s dispositive motion for 

judgment on the pleadings and forthcoming motion for summary judgment. 

Dated: May 9, 2018 Respectfully submitted, 

 JEFFREY H. WOOD 

Acting Assistant Attorney General 

Environment & Natural Resources Division 

/s/ Clare Boronow

LISA LYNNE RUSSELL 

GUILLERMO A. MONTERO 

SEAN C. DUFFY (NY Bar No. 4103131) 

MARISSA PIROPATO (MA Bar No. 651630) 

CLARE BORONOW (admitted to MD bar) 

U.S. Department of Justice 

Environment & Natural Resources Division 

Natural Resources Section 

601 D Street NW 

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Defs.’ Mot. for Protective Order & Stay of Discovery 21 

Juliana v. United States, No. 6:15-cv-01517-TC 

Washington, DC 20004 

Telephone: (202) 305-0445 

Facsimile: (202) 305-0506 

sean.c.duffy@usdoj.gov 

Attorneys for Defendants 

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