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’ REPLY IN 

SUPPORT OF MOTION FOR A 

STAY

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INTRODUCTION

Plaintiffs’ opposition to the government’s requested stay focuses on arguments 

concerning the threat of climate change and the urgency of the government’s efforts to address it. 

But the government’s petition for mandamus and its motion for a stay are not about whether 

climate change is an urgent crisis, which it is, and which the Executive Branch is taking 

numerous actions to address with the authorities Congress provided to it. They are about the role 

of the courts in the democratic system of government established by the Constitution, and the 

role of the Executive agencies Congress has established. From the beginning of this litigation, 

the United States has maintained that this suit, which asks a district court judge to assess and 

oversee the entire federal government’s response to climate change, is beyond the Court’s 

authority. Rather, the political branches are the proper bodies in our system of government to 

engage in any comprehensive response to the complex social, economic, and political issues 

posed by climate change. In Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020), the Ninth 

Circuit agreed that Plaintiffs’ requested relief is beyond the judicial power and ordered that this 

case be dismissed “for lack of Article III standing,” id. at 1175.

This Court’s orders granting Plaintiffs leave to file their Second Amended Complaint and 

denying the government’s motion to dismiss violate the Ninth Circuit’s mandate. In addition, this 

suit is beyond the Article III power and equitable authority of this Court to resolve. The Court of 

Appeals is therefore likely to grant the writ. If the United States is correct that this Court lacks 

power to adjudicate this case, then proceeding further would not only irreparably harm the 

government but also transgress foundational limits on the Court’s authority and profoundly 

short-circuit the democratic process. Accordingly, the Court should stay proceedings while the 

Ninth Circuit considers the government’s petition for a writ of mandamus.

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ARGUMENT

I. The United States is Likely to Obtain Relief on its Mandamus Petition.

The Ninth Circuit and other courts have held that a petition for mandamus is an 

appropriate procedure for seeking to clarify or enforce an appellate mandate. Vizcaino v. U.S. 

Dist. Ct. for W. Dist. of Wash., 173 F.3d 713, 719 (9th Cir. 1999) (“[W]hen a lower court 

obstructs the mandate of an appellate court, mandamus is the appropriate remedy.”); accord

Baltimore & Ohio R.R. Co. v. United States, 279 U.S. 781, 785 (1929); In re A.F. Moore & 

Assocs., Inc., 974 F.3d 836, 839 (7th Cir. 2020); In re Conde Vidal, 818 F.3d 765, 767 (1st Cir. 

2016); Yablonski v. United Mine Workers of Am., 454 F.2d 1036, 1038 (D.C. Cir. 1971) 

(“[Mandamus] may appropriately be utilized to correct a misconception of the scope and effect 

of the appellate decision.”). Plaintiffs emphasize the extraordinary nature of mandamus, but they 

overlook that clarification and enforcement of an appellate court’s mandate is a well-accepted 

function of the writ. Indeed, because the Court denied the United States’ motion to certify its 

orders for interlocutory appeal, it is the only remedy available to the government. 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.”). And, in any event, mandamus is proper to 

confine a lower court to the proper scope of its jurisdiction and authority, Cheney v. U.S. Dist. 

Ct. for D.C., 542 U.S. 367, 380-81 (2004), which the government’s mandamus petition seeks.

Plaintiffs observe that the government’s stay motion does not walk through the Bauman

factors, see Bauman v. U.S. Dist. Ct., 557 F.2d 650, 654-55 (9th Cir. 1977), but those factors are 

inapplicable when a litigant petitions for mandamus to enforce a higher court’s mandate. 

Vizcaino, 173 F.3d at 719 (“Bauman does not apply when mandamus is sought on the ground 

that the district court failed to follow the appellate court’s mandate.”). The government also

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addressed the substance of those factors and showed that they were met in this case. See Defs.’ 

Mot. for a Stay Pending a Petition for a Writ of Mandamus 6 (no other way to obtain relief), 7 

(prejudice that cannot be corrected on appeal), 4-5 (clear error of law), 4 (disregard of the 

mandate), 8 (important issues at stake), ECF No. 571.

Plaintiffs also fail to recognize that this Court is bound by the spirit of the Ninth Circuit’s 

mandate as well as its letter. Creech v. Tewalt, 84 F.4th 777, 787 (9th Cir. 2023); Vizcaino, 173 

F.3d at 719. As the United States explained in its stay motion, the “innovative” declaratory relief 

that the Court found would be sufficient to redress Plaintiffs’ injury within the meaning of 

Article III is foreclosed by the Ninth Circuit’s opinion and by foundational Article III principles.

Accordingly, Plaintiffs’ Second Amended Complaint did nothing to cure the redressability 

problem, and Plaintiffs still lack standing.

Plaintiffs attempt to characterize the Ninth Circuit’s opinion as “narrow,” Pls.’ Opp’n to 

Defs.’ Mot. to Stay Pending a Petition for a Writ of Mandamus 10, 13, ECF No. 574, but the 

Court of Appeals’ reasoning was comprehensive. The court held that “[a] declaration, although 

undoubtedly likely to benefit the plaintiffs psychologically, is unlikely by itself to remediate their 

alleged injuries absent further court action.” Juliana, 947 F.3d at 1170. It then concluded that 

any such “further court action” is not constitutionally permissible because “it is beyond the 

power of an Article III court to order, design, supervise, or implement” the federal government’s 

response to climate change. Id. at 1170-71. Any effort to do so would “require the judiciary to 

pass judgment on the sufficiency of the government’s response . . . which necessarily would 

entail a broad range of policymaking.” Id. at 1172. But Article III courts “cannot substitute 

[their] own assessment for the Executive’s or Legislature’s predictive judgments on such 

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matters, all of which are delicate, complex, and involve large elements of prophecy.” Id. 

(original alterations and internal quotation omitted). 

For that reason, the Ninth Circuit held that the Court lacks the constitutional power to 

enforce the declaratory relief Plaintiffs seek, and therefore lacks the power to redress Plaintiffs’ 

alleged injuries through a declaratory judgment. Id. at 1173; see also Haaland v. Brackeen, 599 

U.S. 255, 294 (2023) (“‘[R]edressability requires that the court be able to afford relief through 

the exercise of its power, not through the persuasive or even awe-inspiring effect of [its] 

opinion[.].’ . . . Otherwise, redressability would be satisfied whenever a decision might persuade 

actors who are not before a court—contrary to Article III’s strict prohibition on ‘issuing advisory 

opinions.’” (citations omitted)); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107 (1998) 

(“[P]sychic satisfaction is not an acceptable Article III remedy because it does not redress a 

cognizable Article III injury.”).

The Ninth Circuit’s opinion broadly addressed the constitutional authority of Article III 

courts to adjudicate “cases or controversies” and held that there is no “case or controversy” here. 

Its opinion did not just identify some technical pleading defect that could be cured by an 

amended complaint that does not “updat[e] facts,” “add[] new claims for relief,” or “challeng[e] 

conduct” of different defendants. ECF No. 462 at 9. Plaintiffs do not attempt to reconcile the 

unprecedented relief they are still seeking in their amended complaint with the Ninth Circuit’s 

opinion. The Ninth Circuit is therefore likely to grant the government’s petition for mandamus 

and hold that this Court’s orders are inconsistent with its mandate, and that the Court does not 

have Article III jurisdiction to proceed.

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II. The United States Will Be Irreparably Harmed if Forced to Proceed to Trial in a 

Case the Ninth Circuit Ordered Dismissed.

The government has explained that it will be prejudiced if it is forced to expend 

additional resources litigating this case after the Ninth Circuit ordered this Court to dismiss it and 

while the government’s petition for a writ of mandamus is pending. In response, Plaintiffs argue 

that ordinary litigation costs do not constitute irreparable harm,1 but Plaintiffs ignore the basis 

for the government’s motion: that proceeding with this litigation violates the Ninth Circuit’s 

mandate and deprives the government of the benefits of the judgment it won in the Court of 

Appeals. When a litigant has won a judgment in a higher court, that litigant “should not be 

required to go through the entire process again to obtain execution of the judgment.” Vizcaino, 

173 F.3d at 719 (quoting General Atomic Co. v. Felter, 436 U.S. 493, 497 (1978)).

But litigation costs are not the only harm the United States will suffer if this litigation 

proceeds. Discovery requests directed at federal agencies could require those agencies to take 

positions on substantive factual and policy issues in a single district court at the behest of a few 

individual plaintiffs in a manner that would violate the processes Congress has mandated to 

provide for broad consideration of varying perspectives in the formulation of government policy, 

1 Notably, the United States would be entitled to a stay here even absent a showing of irreparable 

harm. While the Ninth Circuit has not announced any specific standard under which a district 

court is to evaluate a motion to stay its own proceedings pending resolution of a dispositive 

motion, such relief is firmly within a district court’s inherent power to control its docket. Landis

v. N. Am. Co., 299 U.S. 248, 254 (1936). When resolving motions to stay pending dispositive 

motion practice, district courts in this circuit have applied a two-part test: “(1) the motion must 

be dispositive of the entire case; and (2) the dispositive motion must be able to be decided absent 

additional discovery.” See, e.g., Bralich v. Sullivan, CIVIL NO. 17-00547 ACK-RLP, 2018 WL 

11260499, at *1 (D. Haw. Mar. 20, 2018). “If both prongs are answered in the affirmative, the 

court may issue a stay.” Jeremiah M. v. Crum, Case No. 3:22-CV-00129-JMK, 2022 WL 

17082117, at *2 (D. Alaska Nov. 17, 2022). Here, that two-part test is satisfied. The mandamus 

petition is dispositive and it can be decided without need for additional district court 

proceedings.

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and that would disregard the carefully crafted substantive authority Congress has vested in the 

relevant federal agencies. See Petition for Writ of Mandamus and Emergency Motion for a Stay 

of Discovery and Trial Under Circuit Rule 27-3 at 43-44, ECF No. 308-1 (citing Perez v. Mortg. 

Bankers Ass’n, 575 U.S. 92, 101-02 (2015); Vermont Yankee Nuclear Power Corp. v. NRDC, 

Inc., 435 U.S. 519, 546 (1978)).

Moreover, permitting further discovery in this case, particularly when the very 

constitutionality of the proceeding is in grave doubt, would not sufficiently respect the 

independence of the political branches and the people they represent. Cf. Vill. of Arlington 

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268 n.18 (1977) (“[J]udicial inquiries into 

legislative or executive motivation represent a substantial intrusion into the workings of other 

branches of government.”).

Plaintiffs suggest that all that is necessary to prepare for trial is the updating of expert 

reports, ECF No. 574 at 15, but Plaintiffs conspicuously decline to represent that they will not 

seek more intrusive discovery, nor could they based on their communications and actions to date. 

Plaintiffs asserted on November 20, 2023, that they would begin discovery “so that Juliana is 

ready to commence trial in the near future.” Ex. 1 (Pls.’ Nov. 20, 2023 letter). Consistent with 

that representation, Plaintiffs served requests for admission on the Environmental Protection 

Agency the next day. Ex. 2 (Pls.’ Nov. 21, 2023 Requests for Admission). As Plaintiffs 

themselves point out, the government may, in appropriate cases, seek mandamus relief to prevent 

unlawful discovery directed at Executive Branch officials. ECF No. 574 at 3 n.4.

The government offered statistics about the public resources that would be consumed by 

a trial to provide the Court with some context on the magnitude of the concern, but for the 

foregoing reasons, the bases for the government’s position that it will be irreparably harmed are 

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primarily legal rather than factual. Accordingly, Plaintiffs’ expert declarations purporting to 

evaluate the significance of the government’s injury are irrelevant.

III. Plaintiffs Will Not Be Significantly Prejudiced by a Stay.

There is no reason to think the Ninth Circuit will not resolve the United States’ petition 

promptly, quite possibly within a few months. See Fed. R. App. P. 21(b)(6) (“The [mandamus] 

proceeding must be given preference over ordinary civil cases.”). The question is not whether 

Plaintiffs will be harmed in the interim by climate change—a phenomenon that has developed 

over many decades—but whether they will be harmed in a legally cognizable way by a stay of 

proceedings while the government asks the Ninth Circuit to clarify the scope of its mandate and

determine whether this Court has the jurisdiction and equitable power to proceed. Plaintiffs 

cannot make any plausible argument that they will suffer significant harm. The closest they come 

to asserting harm from a stay is their allegation that “[a]ny delay . . . only serves to exacerbate 

their existing mental health injuries.” ECF No. 574 at 20. But it has been more than four years 

since the Court of Appeals ruled that Plaintiffs lack standing, and Plaintiffs have not moved to 

expedite the proceedings in this Court over those four years.

Even if Plaintiffs’ asserted injuries from climate change were relevant to this motion, 

those injuries cannot be exacerbated by the requested stay because—as the Ninth Circuit held—

this Court lacks the power to require the government to alter its policies or to order the 

government to take additional actions. Juliana, 947 F.3d at 1171. Even if Article III allowed the 

Court to issue an advisory opinion declaring Plaintiffs’ asserted rights vis-à-vis the National 

Government as a whole regarding climate change, such a declaration, necessarily limited to them

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alone, would not be “substantially likely to mitigate the plaintiffs’ asserted concrete injuries.” Id. 

at 1170.2

IV. The Public Interest Favors a Stay.

The government is not seeking the writ of mandamus because it disagrees with Plaintiffs 

that climate change is an urgent concern or that action by the federal government must be a key 

part of the solution. It is seeking the writ of mandamus because it has a duty to uphold the 

democratic system established by the Constitution and the substantive and procedural standards 

and limitations Congress has prescribed for the Executive Branch and its agencies to follow in 

addressing climate issues. That democratic system and statutory framework do not contemplate 

judicial resolution of complex social problems, which require the balancing of “competing 

social, political, and economic forces.” Juliana, 947 F.3d at 1172 (quoting Collins v. City of 

Harker Heights, 503 U.S. 115, 128–29 (1992)). Yet proceeding to trial and judgment in this 

litigation would require the Court to do just that. Because merely continuing this litigation has 

grave constitutional implications, the proper course would be for the Court to issue a stay until 

the Ninth Circuit determines whether the Court has the power to proceed.

2 Plaintiffs assert that the government has misused petitions for mandamus in this case and that 

the Department of Justice is “politically persecut[ing]” them. ECF No. 574 at 5. Those 

accusations are false, and demonstrated to be false by the history of this case. In response to the 

government’s petitions, the Supreme Court, the Ninth Circuit, and this Court all noted that 

certification of an interlocutory appeal was warranted. United States v. U.S. Dist. Ct. for Dist. of 

Or., 139 S. Ct. 1 (mem.) (2018) (observing that the “breadth of [Plaintiffs’] claims is striking” 

and “the justiciability of those claims present[ed] substantial grounds for difference of opinion”); 

In re United States, 139 S. Ct. 452, 453 (mem.) (2018) (same); Juliana, 947 F.3d at 1166 (noting 

that the Ninth Circuit “invited [this Court] to revisit certification, noting the Supreme Court’s 

justiciability concerns”); ECF No. 444 (granting reconsideration and certifying the Court’s 

orders on Plaintiffs’ prior complaint for interlocutory appeal). And once an interlocutory appeal 

was certified, the Ninth Circuit agreed with the government’s position that Plaintiffs do not have 

standing and ordered this Court to dismiss the suit. Juliana, 947 F.3d at 1175. There is 

accordingly nothing inappropriate about the government’s petitions for mandamus in this case.

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The public interest also favors the orderly resolution of litigation and the observance of 

the hierarchical structure of the judiciary. Cf. United States v. Thrasher, 483 F.3d 977, 982 (9th 

Cir. 2007) (“[T]he mandate rule also serves an interest in preserving the hierarchical structure of 

the court system.”). If the government is correct, and the Court’s orders violate the Ninth 

Circuit’s mandate, then proceeding further would harm not only the Executive, but also the 

Judicial Branch. By staying proceedings while the scope of the mandate is resolved, this Court 

would set a sound precedent that litigants may not lightly circumvent appellate rulings through 

artful pleading. And if the government’s petition is denied, a stay would still set a salutary 

precedent that district courts will proceed cautiously when their power to hear a case is in 

substantial doubt.

CONCLUSION

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

Ninth Circuit’s disposition of the government’s petition for a writ of mandamus.

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Dated: February 15, 2024 Respectfully submitted,

TODD KIM

Assistant Attorney General 

Environment & Natural Resources Division 

/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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