Petition for Writ of Certiorari — In Re Kelsey Cascadia Rose Juliana, et al., Petitioners
Supreme Court briefSep 12, 2024
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No. 24-___
IN THE
Supreme Court of the United States
IN RE KELSEY CASCADIA ROSE JULIANA, et al.,
Petitioners.
ON PETITION FOR A WRIT OF MANDAMUS TO THE
UNITED STATES COURT OF A PPEALS FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF MANDAMUS
PHILIP L. GREGORY
GREGORY LAW GROUP
1250 Godetia Drive
Redwood City, CA 94062
A NDREA K. RODGERS
OUR CHILDREN’S TRUST
3026 NW Esplanade
Seattle, WA 98117
117097
JULIA A. OLSON
Counsel of Record
OUR CHILDREN’S TRUST
1216 Lincoln Street
Eugene, OR 97401
julia@ourchildrenstrust.org
(415) 786-4825
A
(800) 274-3321 • (800) 359-6859
i
QUESTION PRESENTED
When this now nine-year-old case was before the
Court in 2018, this Court denied the Government’s
application for a stay of proceedings in the district court
pending disposition of the Government’s 2018 petition
for a writ of mandamus in this Court. Case No. 18A410.
This Court found “the Government’s petition for a writ
of mandamus does not have a ‘fair prospect’ of success
in this Court . . . . ” App. 167a. In denying the requested
stay without prejudice, this Court instructed that the
conditions set forth in Cheney v. U.S. Dist. Ct. for D.C.,
542 U.S. 367, 380–81 (2004) (“Cheney”) dictate whether
a petition for a writ of mandamus may be granted. App.
165a–66a, 168a.
,QUHVSRQVHWRWKH*RYHUQPHQW·VÀIWKSHWLWLRQIRUD
writ of mandamus in the Ninth Circuit to reverse the
district court’s interlocutory orders granting Plaintiffs
leave to amend and denying in part the Government’s
motion to dismiss Plaintiffs’ second amended complaint,
a motions panel of the Ninth Circuit (the “panel”) issued
a writ of mandamus to the district court to dismiss. The
SDQHOGLGVRKRZHYHUZLWKRXWDSSO\LQJRUÀQGLQJVDWLVÀHG
the three conditions set forth in Cheney, contravening
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The question presented is whether a writ of mandamus
should issue directing the Ninth Circuit to vacate its writ
of mandamus and remand to the district court, where the
Ninth Circuit exceeded its prescribed jurisdiction under
28 U.S.C. § 1651 by ignoring the mandatory Cheney
conditions and reviewing de novo two district court orders
ii
that are fully reviewable on direct appeal under 28 U.S.C.
§ 1292(b) with no cognizable harm to the Government,
thereby depriving Plaintiffs of their clear and indisputable
right to fair process and an appeal before a merits panel
in the court of appeals.
iii
PARTIES TO THE PROCEEDING
Petitioners in this Court (youth “Plaintiffs” in the
district court, and real parties in interest in the Ninth
Circuit) are Kelsey Cascadia Rose Juliana; Xiuhtezcatl
Tonatiuh Martinez; Alexander Loznak; Jacob Lebel;
Zealand Bell; Avery McRae; Sahara Valentine; Miriam
Oommen; Tia Marie Hatton; Isaac Vergun; Miko Vergun;
Hazel Van Ummersen; Sophie Kivlehan; Jaime Butler;
Journey Zephier; Vic Barrett; Nathaniel Baring; Aji
Piper; Levi D., through his Guardian Leigh-Ann Draheim;
Jayden Foytlin; and Nic Venner.
Respondent in this Court, against whom relief is
sought, is the United States Court of Appeals for the Ninth
Circuit (the “Ninth Circuit”).
Real parties in interest in this Court (Defendants in
the district court, and Petitioners in the Ninth Circuit—
the “Government”) are the United States of America; the
2IÀFHRIWKH3UHVLGHQWRIWKH8QLWHG6WDWHVRI$PHULFD
%UHQGD 0DOORU\ LQ KHU RIÀFLDO FDSDFLW\ DV 'LUHFWRU RI
Council on Environmental Quality; Shalanda Young, in her
RIÀFLDOFDSDFLW\DV'LUHFWRURIWKH2IÀFHRI0DQDJHPHQW
DQG%XGJHW $UDWL3UDEKDNDULQKHURIÀFLDOFDSDFLW\DV
'LUHFWRURIWKH2IÀFHRI6FLHQFHDQG7HFKQRORJ\3ROLF\ WKH
United States Department of Energy; Jennifer Granholm,
LQKHURIÀFLDOFDSDFLW\DV6HFUHWDU\RI(QHUJ\ WKH8QLWHG
States Department of the Interior; Deb Haaland, in her
RIÀFLDO FDSDFLW\ DV 6HFUHWDU\ RI ,QWHULRU WKH 8QLWHG
States Department of Transportation; Pete Buttigieg,
LQ KLV RIÀFLDO FDSDFLW\ DV 6HFUHWDU\ RI 7UDQVSRUWDWLRQ
the United States Department of Agriculture; Thomas
J. Vilsack, in his official capacity as Secretary of
iv
Agriculture; the United States Department of Commerce;
*LQD 5DLPRQGR LQ KHU RIÀFLDO FDSDFLW\ DV 6HFUHWDU\ RI
Commerce; the United States Department of Defense;
/OR\G $XVWLQ LQ KLV RIÀFLDO FDSDFLW\ DV 6HFUHWDU\ RI
Defense; the United States Department of State; Antony
%OLQNHQLQKLVRIÀFLDOFDSDFLW\DV6HFUHWDU\RI6WDWH WKH
United States Environmental Protection Agency; and
0LFKDHO5HJDQLQKLVRIÀFLDOFDSDFLW\DV$GPLQLVWUDWRU
of the EPA.
Respondent in the Ninth Circuit was the United States
District Court for the District of Oregon (“district court”).
v
STATEMENT OF RELATED PROCEEDINGS
United States District Court for the District of Oregon:1
Juliana v. United States,
No. 15-cv-01517 (May 1, 2024).
United States Court of Appeals for the Ninth Circuit:
In re United States,
No. 24-684 (July 12, 2024).
Juliana v. United States,
No. 18-36082 (Feb. 10, 2021).
Juliana v. United States,
No. 18-80176 (Dec. 26, 2018).
1. Plaintiffs refer to the District Court docket as “D. Ct.
'RFµ WKH1LQWK&LUFXLWGRFNHWIRUWKH*RYHUQPHQW·VÀUVWSHWLWLRQ
for writ of mandamus as “Ct. App. I Doc.,” No. 17-71692; the Ninth
Circuit docket for the Government’s second petition for writ of
mandamus as “Ct. App. II Doc.,” No. 18-71928; the Ninth Circuit
docket for the Government’s third petition for writ of mandamus in
that court as “Ct. App. III Doc.,” No. 18-72776; the Ninth Circuit
docket for the Government’s fourth petition for writ of mandamus
in that court as “Ct. App. IV Doc.,” No. 18-73014; the Ninth Circuit
docket for the Government’s 2018 Petition for Permission to Appeal
as “Ct. App. V Doc.,” No. 18-80176; the Ninth Circuit docket for
the interlocutory proceedings under 28 U.S.C. § 1292(b) as “Ct.
App. VI Doc.,” No 18-36082; the Ninth Circuit docket for the
*RYHUQPHQW·VÀIWKSHWLWLRQIRUZULWRIPDQGDPXVLQWKDWFRXUWDV
“Ct. App. VII Doc.,” No. 24-684; the Supreme Court docket for the
*RYHUQPHQW·VÀUVWDSSOLFDWLRQIRUVWD\DV´6&W,µ1R$
and the Supreme Court docket for the Government’s October 2018
petition for mandamus as “S. Ct. II,” No. 18-505.
vi
In re United States,
No. 18-73014 (Dec. 26, 2018).
In re United States,
No. 18-72776 (Nov. 2, 2018).
In re United States,
No. 18-71928 (July 20, 2018).
In re United States,
No. 17-71692 (Mar. 7, 2018).
Supreme Court of the United States:
In re United States,
No. 18-505 (July 29, 2019).
In re United States,
No. 18A410 (Nov. 2, 2018).
United States v. U.S. Dist. Ct. for Dist. of Or.,
No. 18A65 (July 30, 2018).
vii
TABLE OF CONTENTS
Page
QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i
PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . iii
STATEMENT OF RELATED PROCEEDINGS . . . . .v
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . vii
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . xi
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . xiii
PETITION FOR A WRIT OF MANDAMUS . . . . . . . .1
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
APPLICABLE OPINIONS . . . . . . . . . . . . . . . . . . . . . . .4
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
R EL E VA N T C ONS T I T U T IONA L A N D
STATUTORY PROVISIONS INVOLVED . . . . . . . .5
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . .6
A. Pretrial proceedings in the district court
from 2015-2018. . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
B. The Government’s first six petitions for
ZULWVRIPDQGDPXVDQGÀIWHHQSHWLWLRQVIRU
stay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
(1) First petition for writ of mandamus
in the Ninth Circuit. . . . . . . . . . . . . . . . . . . . .7
viii
Table of Contents
Page
(2) Second petition for writ of mandamus
in the Ninth Circuit. . . . . . . . . . . . . . . . . . . . .7
(3) Third petition for writ of mandamus
(first in this Court), styled as an
application for a stay . . . . . . . . . . . . . . . . . . . .8
(4) Fourth petition for writ of mandamus
(third in the Ninth Circuit). . . . . . . . . . . . . . .8
(5) Fifth petition for writ of mandamus
(second in this Court) . . . . . . . . . . . . . . . . . . .8
(6) Sixth petition for writ of mandamus
(fourth in the Ninth Circuit) . . . . . . . . . . . . .9
C. On interlocutory appeal, a divided 2020
Ninth Circuit merits panel dismisses
Pl a i nt i f fs’ 2 015 c ompl a i nt w it hout
prejudice on standing, and is silent on leave
to amend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
D. On remand, the district court grants leave
to amend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
E. A Ninth Circuit motions panel applies
de novo review to grant the seventh
p et it ion for a w r it of m a nd a mu s ,
order i ng i mmed iat e d ism issa l w ith
no Rule 15 analysis on leave to amend . . . . . . . .11
REASONS FOR GRANTING THE PETITION. . . . .13
ix
Table of Contents
Page
I.
PLAINTIFFS’ RIGHT TO THE WRIT
IS CLEA R A ND INDISPU TA BLE
BECAUSE THE NINTH CIRCUIT
EXCEEDED ITS JURISDICTION BY
TERMINATING PROCEEDINGS IN
THE DISTRICT COURT PRIOR TO
FINAL JUDGMENT. . . . . . . . . . . . . . . . . . . . . .15
A. The panel’s order did not conduct,
and indeed contravenes, the requisite
inquiry under Cheney. . . . . . . . . . . . . . . . . .16
B. The panel contravened Plaintiffs’
clear and indisputable right to fair
SURFHVV DQG D ULJKW RI DSSHDO DW ÀQDO
judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
C. T h e p a n e l i g n o r e d t h a t t h e
Government had other adequate
means to obtain full relief and would
suffer no cognizable harm . . . . . . . . . . . . . .22
II. THERE ARE NO OTHER ADEQUATE
MEANS FOR PLAINTIFFS TO OBTAIN
THE RELIEF THEY SEEK . . . . . . . . . . . . . . .24
III. M A N DA M U S I S A P PR OPR I A T E
TO UNDO THE MANIFOLD HARM
CREATED BY THE NINTH CIRCUIT’S
DECISION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
x
Table of Contents
Page
A. Mandamus here would undo the harm
to the orderly functioning of the federal
court system created by the panel’s
writ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
B. Ma nda mus wou ld el i m i nat e t he
d i le m m a c r e at e d by t he p a nel
for district courts . . . . . . . . . . . . . . . . . . . . .29
C. Mandamus would undo the panel’s
potent disregard of this district
court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
D. Mandamus would remove unjust
prejudice to the Plaintiffs and correct
uneven treatment . . . . . . . . . . . . . . . . . . . . .31
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
xi
TABLE OF APPENDICES
Page
APPENDIX A — Order of the United States
&RXUW RI $SSHDOV IRU WKH 1LQWK &LUFXLW ÀOHG
May 1, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1a
APPENDIX B — Judgment of the United States
District Court for the District of Oregon, Eugene
'LYLVLRQÀOHG0D\ 1, 2024 . . . . . . . . . . . . . . . . . . . . . .6a
APPENDIX C — Supplemental Order of the
United States District Court for the District of
2UHJRQ(XJHQH'LYLVLRQÀOHG$SULO 19, 2024. . . . . .7a
A PPEN DI X D — O pi n ion a nd O rder of
the United States District Court for the
District of Oregon, Eugene Division, signed
December 29, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . .25a
APPENDIX E — Opinion and Order of the
United States District Court for the District of
Oregon, Eugene Division, signed June 1, 2023 . . . .79a
APPENDIX F — Opinion of the United States
Court of Appeals for the Ninth Circuit, filed
January 17, 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101a
APPENDIX G — Opinion of the Supreme Court of
WKH8QLWHG6WDWHVÀOHG1RYHPEHU 2, 2018. . . . . . .165a
xii
Table of Appendices
Page
APPENDIX H — Opinion of the Supreme Court
RIWKH8QLWHG6WDWHVÀOHG-XO\ . . . . . . . . .169a
APPENDIX I — Order of the United States
Court of Appeals for the Ninth Circuit,
ÀOHG-XO\ . . . . . . . . . . . . . . . . . . . . . . . . . . . 170a
xiii
TABLE OF CITED AUTHORITIES
Page
Cases
$OOLHG&KHP&RUSY'DLÁRQ,QF
449 U.S. 33 (1980). . . . . . . . . . . . . . . . . . . . . . . . . 22, 24
$P&RQVW&RY-DFNVRQYLOOH7 .:5\&R
148 U.S. 372 (1893) . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
$VKODQGY/LQJ7HPFR9RXJKW,QF
711 F.2d 1431 (9th Cir. 1983) . . . . . . . . . . . . . . . . . . . .20
%DFRQY:RRGZDUG
104 F.4th 744 (9th Cir. 2024) . . . . . . . . . . . . . . . . . . . .18
%DNHUY&DUU
369 U.S. 186 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
%DQNRI&ROXPELDY6ZHHQ\
26 U.S. 567 (1828). . . . . . . . . . . . . . . . . . . . . . . . . .16, 23
%DQNHUV/LIH &DV&RY+ROODQG
346 U.S. 379 (1953) . . . . . . . . . . . . . . . . . . . . . .14, 22, 23
%DXPDQY86'LVW&W
557 F.2d 650 (9th Cir. 1977) . . . . . . . . . . . . . . . . . . . .16
&KHQH\Y86'LVW&WIRU'&
542 U.S. 367 (2004). . . . . . . 1-4, 8, 12-17, 20-24, 26, 29
&RKHQY%HQHÀFLDO,QGXV/RDQ&RUS
337 U.S. 541 (1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
xiv
Cited Authorities
Page
'XSUHHY<RXQJHU
598 U.S. 729 (2023). . . . . . . . . . . . . . . . . . . . . . . . . . . .24
(PLQHQFH&DS//&Y$VSHRQ,QF
316 F.3d 1048 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . .18
([SDUWH&UDQH
30 U.S. 190 (1831) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
([SDUWH)DKH\
332 U.S. 258 (1947). . . . . . . . . . . . . . . . . . . . . . . . .16, 30
([SDUWH8QLWHG6WDWHV
287 U.S. 241 (1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
)OHFN $VVRFV,QFY3KRHQL[
471 F.3d 1100 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . .18
)RPDQY'DYLV
371 U.S. 178 (1962) . . . . . 3, 11, 12-13, 15, 18-21, 30, 31
)UDQNVY%RZPDQ7UDQVS&R
424 U.S. 747 (1976) . . . . . . . . . . . . . . . . . . . . . . . . .15, 19
+ROOLQJVZRUWKY3HUU\
558 U.S. 183 (2010) . . . . . . . . . . . . . . . . . . . . . .14, 16, 25
,QUH7UDGH &RP%DQN%\ 7KURXJK)LVKHU
890 F.3d 301 (D.C. Cir. 2018). . . . . . . . . . . . . . . . . . . . 17
,QUH8QLWHG6WDWHV
139 S. Ct. 16 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
xv
Cited Authorities
Page
,QUH8QLWHG6WDWHV
140 S. Ct. 16 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
,QUH8QLWHG6WDWHV
791 F.3d 945 (9th Cir. 2015). . . . . . . . . . . . . . . . . . . . .16
,QUH8QLWHG6WDWHV
884 F.3d 830 (9th Cir. 2018) . . . . . . . . .7, 14, 22, 23, 28
,QUH8QLWHG6WDWHV
895 F.3d 1101 (9th Cir. 2018) . . . . . . . . . . . .7, 14, 22, 23
-XOLDQDY8QLWHG6WDWHV
217 F. Supp. 3d 1224 (D. Or. 2016) . . . . . . . . . . . . .6, 32
-XOLDQDY8QLWHG6WDWHV
339 F. Supp. 3d 1062 (D. Or. 2018) . . . . . . . . . . . . . . . .6
-XOLDQDY8QLWHG6WDWHV
949 F.3d 1125 (9th Cir. 2018). . . . . . . . . . . . . . .9, 10, 28
-XOLDQDY8QLWHG6WDWHV
986 F.3d 1295 (9th Cir. 2021) . . . . . . . . . . . . . . . . . . .10
-XOLDQDY8QLWHG6WDWHV
No. 6:15-cv-01517-AA,
2018 WL 6303774 (D. Or. Nov. 21, 2018) . . . . . . . . . . .9
-XOLDQDY8QLWHG6WDWHV
No. 6:15-cv-01517-AA,
2024 WL 1695064 (D. Or. Apr. 19, 2024) . . . . . . . . . .12
.DPDOY(GHQ&UHDPHU\//&
88 F.4th 1268 (9th Cir. 2023). . . . . . . . . . . . . . . . . . . .22
xvi
Cited Authorities
Page
.HUUY86'LVW&WIRU1'LVWRI&DO
426 U.S. 394 (1976) . . . . . . . . . . . . . . . . . . . . . . .4, 16, 26
.LVRUY:LONLH
588 U.S. 558 (2019). . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
0DUEXU\Y0DGLVRQ
5 U.S. 137 (1803) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
0HG,PPXQH,QFY*HQHQWHFK,QF
549 U.S. 118 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . .21
1DW·O&RXQFLORI/D5D]DY&HJDYVNH
800 F.3d 1032 (9th Cir. 2015). . . . . . . . . . . . . . . . . . . .18
3DQDPD&DQDO&RY*UDFH/LQH,QF
356 U.S. 309 (1958). . . . . . . . . . . . . . . . . . . . . . . . . . . .19
3LW5LYHU7ULEHY86)RUHVW6HUY
615 F.3d 1069 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . 17
3O\OHUY'RH
457 U.S. 202 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . .33
5DPRVY/RXLVLDQD
590 U.S. 83 (2020). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
5LYHUVY5RDGZD\([S,QF
511 U.S. 298 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
5RFKHY(YDSRUDWHG0LON$VV·Q
319 U.S. 21 (1943) . . . . . . . . . . .14, 16, 17, 22, 23, 25, 28
xvii
Cited Authorities
Page
6)+HUULQJ$VV·QY'HS·WRIWKH,QWHULRU
946 F.3d 564 (9th Cir. 2019). . . . . . . . . . . . . . . . . .18, 29
6FKODJHQKDXIY+ROGHU
379 U.S. 104 (1964) . . . . . . . . . . . . . . . . . . . . . 22, 23, 26
6HPWHN,QW·O,QFY/RFNKHHG0DUWLQ&RUS
531 U.S. 497 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18
6WHHO&RY&LWL]HQVIRUD%HWWHU(QY·W
523 U.S. 83 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
8QLWHG6WDWHVY*RRJOH
No. 20-cv-3010 (APM),
2024 WL 3647498 (D.D.C. Aug. 5, 2024) . . . . . . . . . .28
8]XHJEXQDPY3UHF]HZVNL
592 U.S. 279, 141 S. Ct. 792 (2021) . . . . . . . . . . . . . . .21
9L]FDLQRY86'LVW&WIRU:'LVWRI:DVK
173 F.3d 713 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . .2, 17
:9D6WDWH%GRI(GXFY%DUQHWWH
319 U.S. 624 (1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
:KROH:RPDQ·V+HDOWKY-DFNVRQ
595 U.S. 30 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
:LOEXUY8QLWHG6WDWHVH[UHO.DGULH
281 U.S. 206 (1930). . . . . . . . . . . . . . . . . . . . . . . . . . . .19
:LOOY&DOYHUW)LUH,QV&R
437 U.S. 655 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
xviii
Cited Authorities
Page
:LOOY8QLWHG6WDWHV
389 U.S. 90 (1967). . . . . . . . . . . . . . . . . . . . 16, 17, 27, 29
:RUNY8QLWHG6WDWHVH[UHO5LYHV
267 U.S. 175 (1925) . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Constitutional Provisions
U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
U.S. Const. amend. IX . . . . . . . . . . . . . . . . . . . . . . . . . . .11
Statutes, Rules, and Regulations
28 U.S.C. § 1291 . . . . . . . . . . . . . . .13, 14, 15, 20, 24, 25, 32
28 U.S.C. § 1292(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1, 9
28 U.S.C. § 1651 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3, 5, 13
28 U.S.C. § 1651(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Energy Policy Act § 201 . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Fed. R. App. P. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14, 20
Fed. R. App. P. 4 . . . . . . . . . . . . . . . . . . . . . . . . . .14, 20, 25
Fed. R. Civ. P. 15(a) . . . . . . . . . . . . . . . . . . . . .19, 20, 21, 29
Fed. R. Civ. P. 15(a)(2) . . . . . . . . . . . . . . . . . . .14, 18, 20, 21
Sup. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14, 25
xix
Cited Authorities
Page
Sup. Ct. R. 20.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15
9th Cir. Gen. Order 3.6(d). . . . . . . . . . . . . . . . . . . . . . . . .32
Other Authorities
3 Blackstone’s Commentaries 110 . . . . . . . . . . . . . . . . . .24
Cong. Rsch. Ser v., /DZVXLWV $JDLQVW WKH
)HGHUDO *RYHUQPHQW %DVLF )HGHUDO &RXUW
3URFHGXUH DQG 7LPHOLQHV (Dec. 22, 2020),
https://crsreports.congress.gov/product/pdf/
IF/IF11349 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
U. S . C ou r t s , Ab o u t t h e U. S . Co u r t s of
Appeals, https://w w w.uscourts.gov/aboutfederal-courts/court-role-and-structure/
ab out - u s - c ou r t s - app e a l s ( l a st v i s it e d
Sept. 6, 2024). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
1
PETITION FOR A WRIT OF MANDAMUS
Plaintiffs respectfully petition for a writ of mandamus
to the Ninth Circuit directing it to vacate its May 1, 2024
order of a writ of mandamus to the district court and to
remand the case to the district court to recall its judgment
and order of dismissal.
INTRODUCTION
This Petition seeks to redress an egregious misuse of
mandamus jurisdiction by the Ninth Circuit. The Ninth
Circuit’s assertion of mandamus jurisdiction contravenes
this Court’s requirements in Cheney and this Court’s
explicit directions in its 2018 Order in this case to comply
with Cheney. It cannot be the case that the Government
may file successive mandamus petitions whenever it
strongly disagrees with a district court’s interlocutory
order, in this instance an order allowing Plaintiffs to
amend their complaint after an earlier jurisdictional
dismissal for lack of standing. The panel decision makes
a mockery of the jurisdictional framework established
by Congress under 28 U.S.C. § 1292(b) and carefully
preserved by this Court in a long line of cases. This Court
should intervene and overturn this abuse of the mandamus
remedy before the decision below creates more disruption
in the orderly functioning of the federal courts, and to
preserve Plaintiffs’ rights to fair process and a full appeal
LQWKH1LQWK&LUFXLWXSRQÀQDOMXGJPHQW3ODLQWLIIVKDYH
no other adequate remedy but to seek a writ of mandamus
from this Court.
For nearly a decade, these 21 youth Plaintiffs have
sought to vindicate their claims of mounting injuries
2
to their fundamental constitutional rights to life and
liberties resulting from the Government’s national energy
system and Energy Policy Act § 201. In a sustained
effort to evade the Federal Rules of Civil Procedure
DQGWKHÀQDOMXGJPHQWUXOHWKH*RYHUQPHQWDGRSWHGD
OLWLJDWLRQVWUDWHJ\RIÀOLQJUHSHWLWLRXVSHWLWLRQVIRUZULWV
of mandamus that fall far short of the standard set forth
in Cheney86DW²7KH*RYHUQPHQW·VÀUVWVL[
petitions for writs of mandamus were denied—and along
the way, this Court instructed that the requirements set
forth in Cheney dictate whether the Ninth Circuit may
grant a petition for a writ of mandamus. App. 165–66a.
The Government’s seventh mandamus petition
challenging two interlocutory orders by the district
court—an order granting leave to amend and an order
denying in part a motion to dismiss—falls equally short
because the Government had “other adequate means to
attain the relief [it] desires,” i.e., “the regular appeals
process.” Cheney, 542 U.S. at 380–81. Even though the
Government’s petition did not come close to satisfying the
Cheney conditions, the panel granted the petition without
performing a Cheney analysis, or even citing Cheney.
Ct. App. VII Doc. 1.1; App. 1a–5a. Instead, the panel
improperly relied on a pre-Cheney Ninth Circuit opinion
to apply “de novo” review of “a district court’s compliance”
with a prior mandate, wholly disregarding &KHQH\·Vthree
conditions and creating a new exception to this Court’s
requirements. App. 2a–3a (citing 9L]FDLQRY86'LVW
&W IRU : 'LVW RI :DVK, 173 F.3d 713 (9th Cir. 1999)).
The panel’s writ of mandamus ordered the district court
WRWHUPLQDWHSURFHHGLQJVEHIRUHÀQDOMXGJPHQWIRUODFN
of jurisdiction. Exceeding its own prescribed jurisdiction,
the panel’s writ divested the district court of its inherent
3
discretion under Foman v. Davis to grant leave to amend
and review thereof under an abuse of discretion standard.
371 U.S. 178, 180–82 (1962). The effect of the panel’s writ
was to deny Plaintiffs any right of appellate review of their
amended complaint, in particular whether amendment
FXUHGWKHMXULVGLFWLRQDOGHÀFLHQF\LGHQWLÀHGLQWKHSULRU
FHUWLÀHGLQWHUORFXWRU\DSSHDORUGHUIURP
Mandamus relief is an “extraordinary remedy”
appropriate for the “exceptional circumstances” now
before this Court, where a lower court’s failure to
follow this Court’s clear instructions has left Plaintiffs
with “no other adequate means” to enforce their “clear
and indisputable” rights. Cheney, 542 U.S. at 380–81
(internal quotation marks omitted). Because the panel’s
grant of mandamus (1) departed drastically from the
law controlling its jurisdiction, (2) is not reviewable on
GLUHFWDSSHDOIURPÀQDOMXGJPHQWDQG XQGHUPLQHVWKH
federal rules and the orderly functioning of the federal
court system, the panel’s decision should be vacated by
a writ of mandamus from this Court. The extraordinary
misuse of extraordinary petitions by the Government and
an extraordinary writ by the Ninth Circuit have ruptured
the fair process litigants are afforded by the federal
rules. A bedrock of our legal system is that even the most
extraordinary cases are entitled to ordinary procedures.
The merits of Plaintiffs’ underlying case and their
Article III standing to bring it are not before this Court
on this 28 U.S.C. § 1651 petition. Instead, this petition
centers on mandamus jurisdiction’s extraordinarily
circumscribed role in the federal court system. Lower
federal courts must obey this Court’s decision that “three
conditions must EHVDWLVÀHGEHIRUH>DZULWRIPDQGDPXV@
4
may issue.” Cheney, 542 U.S. at 380–81 (emphasis added);
see also .HUUY86'LVW&WIRU1'LVWRI&DO, 426 U.S.
394, 403 (1976). “[O]nce the Court has spoken, it is the
duty of other courts to respect that understanding of the
governing rule of law.” 5LYHUVY5RDGZD\([S,QF, 511
U.S. 298, 312 (1994); Ramos v. Louisiana, 590 U.S. 83, 124
n.5 (2020) (Kavanaugh, J., concurring in part) (“[V]ertical
stare decisis is absolute.”). When lower courts selectively
ignore this Court’s decisions and assert an autonomous
prerogative to deploy “one of the most potent weapons in
the judicial arsenal,” Cheney, 542 U.S. at 380 (internal
quotation marks omitted), interfering with the district
court’s proceedings at will de novo, as the panel did here,
such disobedience disrupts “the evenhanded, predictable,
and consistent development of legal principles” and
undermines “the actual and perceived integrity of the
judicial process.” .LVRUY:LONLH, 588 U.S. 558, 587 (2019).
A decision by this Court to grant the present petition
would correct the Ninth Circuit’s unrestrained issuance of
the writ in contravention of both this Court’s prior order
and Cheney, and is the only means for Plaintiffs to obtain
the relief to which they are entitled.
APPLICABLE OPINIONS
The Ninth Circuit’s May 1, 2024 order granting the
Government’s petition for a writ of mandamus is not
published in the Federal Reporter and is attached at App.
A. The district court’s supplemental order addressing
the petition is unpublished and is attached at App. C.
The district court’s order denying in part and granting
in part the Government’s motion to dismiss Plaintiffs’
second amended complaint is not published in the Federal
Supplement, but is available at 2023 WL 9023339 and
5
attached at App. D. The district court’s order granting
Plaintiffs leave to amend is not published in the Federal
Supplement, but is available at 2023 WL 3750334 and is
attached at App. E. The Ninth Circuit’s 2020 Interlocutory
Opinion is reported at 947 F.3d 1159 and is attached at
App. F. Dispositions of four of the Government’s prior
petitions for writs of mandamus are reported at 884 F.3d
830, 895 F.3d 1101, 139 S. Ct. 1 (App. H), and 140 S. Ct. 16,
respectively. Dispositions of the Government’s applications
in this Court for a stay are reported at 139 S. Ct. 1 (App.
H) and 139 S. Ct. 452 (App. G).
JURISDICTION
The jurisdiction of this Court is invoked under 28
U.S.C. § 1651. “The supreme court has power to issue
a mandamus directed to a circuit court of the United
States.” Ex parte Crane, 30 U.S. 190, 191 (1831) (Marshall,
C.J.). The order of the Ninth Circuit was entered on May
1, 2024. App. 1a–5a. The district court entered judgment
pursuant to the Ninth Circuit’s order the same day.
App. 6a. The Ninth Circuit denied Plaintiffs’ petition for
rehearing en banc on July 12, 2024. App. 170a–71a.
RELEVANT CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
The All Writs Act, 28 U.S.C. § 1651(a), provides:
“The Supreme Court and all courts established by Act of
Congress may issue all writs necessary or appropriate in
aid of their respective jurisdictions and agreeable to the
usages and principles of law.”
The Final Judgment Rule, 28 U.S.C. § 1291, provides
in relevant part: “The courts of appeals . . . shall have
6
jurisdiction of appeals from all final decisions of the
district courts of the United States, . . . except where a
direct review may be had in the Supreme Court.”
STATEMENT OF THE CASE
A. Pretrial proceedings in the district court from
2015-2018
Twenty-one children and youth Plaintiffs commenced
this action on August 12, 2015, and filed their First
Amended Complaint, as a matter of course, on September
10, 2015. D. Ct. Doc. 7.
On November 10, 2016, Judge Ann Aiken, then-Chief
Judge for the District of Oregon, adopted the Findings
DQG5HFRPPHQGDWLRQVRI0DJLVWUDWH-XGJH7KRPDV&RIÀQ
and denied the Government’s and former intervenors’
motions to dismiss. Juliana v. United States, 217 F. Supp.
3d 1224 (D. Or. 2016).
On October 15, 2018, in a 62-page opinion, the district
court dismissed the President as a defendant, otherwise
denied the Government’s motion for judgment on the
pleadings, and granted the Government’s motion for
summary judgment in part and denied it in part. Juliana
v. United States, 339 F. Supp. 3d 1062 (D. Or. 2018). Trial
was set for October 29, 2018.
% 7KH *RYHUQPHQW·V ÀUVW VL[ SHWLWLRQV IRU ZULWV RI
PDQGDPXVDQGÀIWHHQSHWLWLRQVIRUVWD\
Between June 9, 2017 and November 5, 2018, the
*RYHUQPHQWÀOHGVL[SHWLWLRQVIRUZULWVRIPDQGDPXVHDFK
7
seeking to avoid the ordinary burdens of discovery and
trial by using mandamus as a substitute for the normal
appeals process. Each petition was denied. Below is a list
of those petitions and their outcomes.
The Government also filed 15 petitions for stays
between March 7, 2017 and February 2, 2024. Those
petitions are listed in Ct. App. VII Doc. 14.2 Ex. 1.
)LUVW SHWLWLRQ IRU ZULW RI PDQGDPXV LQ WKH
Ninth Circuit
2Q-XQH WKH*RYHUQPHQWÀOHGLWVÀUVWSHWLWLRQ
for a writ of mandamus with the Ninth Circuit seeking
to direct the district court to dismiss the case. Ct. App.
I Doc. 1-1 at 40. On March 7, 2018, then-Chief Judge
Sidney R. Thomas, writing for the Ninth Circuit, denied
WKHSHWLWLRQUXOLQJWKH*RYHUQPHQWKDGQRWVDWLVÀHGDQ\
of the conditions for mandamus. In re United States, 884
F.3d 830, 837 (9th Cir. 2018).
6HFRQGSHWLWLRQIRUZULWRIPDQGDPXVLQWKH
Ninth Circuit
7KH*RYHUQPHQWÀOHGLWVVHFRQGSHWLWLRQIRUDZULWRI
mandamus in the Ninth Circuit on July 5, 2018, seeking to
compel the district court to dismiss the case. Ct. App. II
Doc. 1-2 at 54. On July 20, 2018, the Ninth Circuit denied
the petition because the Government had not met any of
the conditions to qualify for mandamus relief. In re United
States, 895 F.3d 1101, 1105–06 (9th Cir. 2018).
8
7KLUGSHWLWLRQIRUZULWRIPDQGDPXV ÀUVWLQ
WKLV&RXUW VW\OHGDVDQDSSOLFDWLRQIRUDVWD\
2Q-XO\WKH*RYHUQPHQWÀOHGDQ$SSOLFDWLRQ
for a Stay with this Court asking the Court “[a]lternatively
. . . [to] construe this application as a petition for a writ
of mandamus to the district court[.]” S. Ct. I, Appl. for
Stay, at 38; see also id. at 32. On July 30, 2018, this Court
denied the application for a stay and denied the “request
for relief.” App. 169a.
)RXUWKSHWLWLRQIRUZULWRIPDQGDPXV WKLUG
in the Ninth Circuit)
2Q2FWREHUWKH*RYHUQPHQWÀOHGLWVWKLUG
petition for a writ of mandamus in the Ninth Circuit,
again seeking to stay trial. Ct. App. III Doc. 1-2 at 24. On
November 2, 2018, the Ninth Circuit denied the petition
as moot. Ct. App. III Doc. 5.
)LIWKSHWLWLRQIRUZULWRIPDQGDPXV VHFRQG
in this Court)
On the eve of trial, on October 18, 2018, the
Government filed its second petition for a writ of
mandamus in this Court. S. Ct. II, Pet. for Mandamus.
The next day, Chief Justice John Roberts temporarily
granted an administrative stay pending consideration
of the petition. In re United States, 139 S. Ct. 16 (2018),
vacated, App. 165–68a. On November 2, 2018, this Court
denied the petition for a stay and lifted the temporary
stay. App. 165a–68a. In its denial of the stay, this Court
instructed that a writ of mandamus may issue only when
the three CheneyFRQGLWLRQVDUHVDWLVÀHGZKLFKPXVWÀUVW
be addressed in the court of appeals. Id. at 165a–67a. On
9
July 29, 2019, this Court dismissed the mandamus petition.
In re United States, 140 S. Ct. 16 (2019) (mem.).
6L[WK SHWLWLRQ IRU ZULW RI PDQGDPXV IRXUWK
in the Ninth Circuit)
2Q1RYHPEHUWKH*RYHUQPHQWÀOHGLWVIRXUWK
petition for a writ of mandamus in the Ninth Circuit (its
sixth overall) seeking to avoid “the impending trial.” Ct.
App. IV Doc. 1-2 at 27.
The same day, the Government moved the district
court to reconsider certifying for interlocutory appeal
its denial of the Governments’ dispositive motions. D.
Ct. Doc. 418. On November 21, 2018, the district court
stated it “stands by its prior rulings on jurisdictional and
merits issues, as well as its belief that this case would be
better served by further factual development at trial,” but
QRQHWKHOHVVFHUWLÀHGLWVRUGHUVGHQ\LQJWKH*RYHUQPHQW·V
dispositive motions for interlocutory appeal under 28
U.S.C. § 1292(b). Juliana v. United States, No. 6:15-cv01517-AA, 2018 WL 6303774, at *3 (D. Or. Nov. 21, 2018).
On December 26, 2018, a divided panel of the Ninth
Circuit granted the Government’s petition for permission
to appeal under 28 U.S.C. § 1292(b). Ct. App. V Doc. 1-1;
Juliana v. United States, 949 F.3d 1125, 1126 (9th Cir.
2018). Judge Michelle Friedland dissented, writing:
It is . . . concerning that allowing this appeal
now effectively rewards the Government for
its repeated efforts to bypass normal litigation
procedures by seeking mandamus relief in our
court and the Supreme Court. If anything has
wasted judicial resources in this case, it was
those efforts.
10
Id. at 1127 n.1 (Friedland, J., dissenting) (citations omitted)
(citing six petitions for mandamus and applications for stay
by the Government in the Ninth Circuit and this Court).
On December 26, 2018, the Ninth Circuit denied the
Government’s sixth petition for mandamus. Ct. App. IV
Doc. 15.
& 2Q LQWHUORFXWRU\ DSSHDO D GLYLGHG 1LQWK
Circuit merits panel dismisses Plaintiffs’ 2015
FRPSODLQW ZLWKRXW SUHMXGLFH RQ VWDQGLQJ DQG LV
silent on leave to amend
On January 17, 2020, after oral argument, a three-judge
merits panel of the Ninth Circuit issued its interlocutory
opinion. App. 101a–64a (the “2020 Opinion”). Based solely
on a narrow redressability holding by a 2-1 majority with
a forceful dissent, the 2020 Opinion “remand[ed] this case
to the district court with instructions to dismiss for lack
of Article III standing.” Id. at 127a. The 2020 Opinion did
not address the issue of leave to amend and did not dismiss
the case with prejudice. See generally id.
D. On remand, the district court grants leave to amend
After the Ninth Circuit denied Plaintiffs’ petition for
rehearing en banc, 986 F.3d 1295 (9th Cir. 2021), the Ninth
Circuit mandate issued to the district court on March 5,
2021. Ct. App. VI Doc. 204.
2Q0DUFK 3ODLQWLIIVSURPSWO\ÀOHGWKHLUÀUVW
motion for leave to amend their complaint to cure the
MXULVGLFWLRQDOGHÀFLHQFLHVLGHQWLÀHGE\WKH1LQWK&LUFXLW
in its 2020 Opinion. D. Ct. Doc. 462.
11
On June 1, 2023, the district court granted Plaintiffs’
motion for leave to amend after conducting a Rule 15(a)
futility analysis under Foman, 371 U.S. at 180–82. App.
87a–88a, 91a–98a, 100a.
2Q-XQH3ODLQWLIIVÀOHGWKHLU6HFRQG$PHQGHG
Complaint, D. Ct. Doc. 542, which the Government then
moved to dismiss. D. Ct. Doc. 547.
On December 29, 2023, the district court narrowed
the claims in the case by granting the Government’s
motion to dismiss Plaintiffs’ claims for injunctive relief and
Plaintiffs’ claims under the Equal Protection Clause and
the Ninth Amendment, and otherwise denied the motion.
App. 54a, 62a–63a, 68a, 72a–74a, 76a–77a.
On January 18, 2024, the Government moved
the district court for a stay pending resolution of the
*RYHUQPHQW·VH[SHFWHGÀOLQJRILWVVHYHQWKSHWLWLRQIRUD
writ of mandamus. D. Ct. Doc. 571.
E. A Ninth Circuit motions panel applies de novo
UHYLHZWRJUDQWWKHVHYHQWKSHWLWLRQIRUDZULWRI
PDQGDPXVRUGHULQJLPPHGLDWHGLVPLVVDOZLWKQR
5XOHDQDO\VLVRQOHDYHWRDPHQG
2Q)HEUXDU\WKH*RYHUQPHQWÀOHGLWVÀIWK
petition for a writ of mandamus in the Ninth Circuit (its
seventh overall) and moved for another stay. Ct. App. VII
Doc. 1.1. The Government repeated its singular desire
to avoid further discovery and trial, the same argument
rejected in its prior mandamus petitions. Ct. App. VII Doc.
1.1 at 48–49. Absent mandamus relief, the sole “damage or
prejudice” the Government claimed it would suffer is “the
12
[G]overnment will be required to comply with additional
discovery requests and proceed to trial on Plaintiffs’
sweeping claims.” Id. at 48.
The Government answered the Second Amended
Complaint on February 27, 2024, admitting many factual
allegations. D. Ct. Doc. 590.
On February 29, 2024, a motions panel of the Ninth
Circuit directed Plaintiffs to answer the petition for a
writ of mandamus and denied the Government’s stay
request without prejudice, referring the petition to the
next available motions panel. Ct. App. VII Doc. 12.1.
Plaintiffs answered the mandamus petition, Ct. App.
9,,'RFDQGWKHGLVWULFWFRXUWÀOHGDVXSSOHPHQWDO
order addressing the petition. App. 7a–24a. The same day,
the district court denied the Government’s motion for stay,
ÀQGLQJWKHSHWLWLRQIRUPDQGDPXVXQOLNHO\WRVXFFHHGRQ
the merits because it met none of the requirements for
mandamus. Juliana v. United States, No. 6:15-cv-01517AA, 2024 WL 1695064, at *2–4 (D. Or. Apr. 19, 2024).
On May 1, 2024, in an unpublished 3-page order on the
papers without oral argument, a different motions panel
of the Ninth Circuit granted the Government’s petition
for a writ of mandamus and ordered the district court to
dismiss the case without leave to amend. App. 1a–5a. The
panel took de novo review of the district court’s compliance
with the prior mandate. App. 3a. The panel neither
cited Cheney nor inquired into whether the mandatory
FRQGLWLRQV IRU PDQGDPXV ZHUH VDWLVÀHG Id. at 2a–5a;
542 U.S. at 380–81. The panel conducted no review of the
district court’s Rule 15(a) futility analysis under Foman,
13
371 U.S. at 180–82 and assigned no error to the district
FRXUW·VÀQGLQJWKDWDPHQGPHQWZRXOGQRWEHIXWLOH7KH
panel conducted no review of Plaintiffs’ second amended
complaint, instead concluding that the prior mandate as
to the ÀUVW amended complaint precluded normal appellate
review of the second amended complaint. App. 2a–5a.
7KH GLVWULFW FRXUW SURPSWO\ GLVPLVVHG DQG LVVXHG ÀQDO
judgment the same day. D. Ct. Doc. 600; App. 6a.
Plaintiffs timely petitioned for rehearing en banc on
June 17, 2024. Ct. App. VII Doc. 27.1. Five amicus curiae
briefs supported the petition for rehearing. Ct. App. VII
Docs. 31.1; 32.1; 33.2; 35.1; 36.1. Plaintiffs also moved to
recall the mandate for violations of the Federal Rules of
Appellate Procedure, Ninth Circuit Rules, and related
Guidelines. Ct. App. VII Doc. 26.1. The panel denied
rehearing and recall on July 12, 2024. App. 170a–71a.
REASONS FOR GRANTING THE PETITION
This Court should grant Plaintiffs’ Petition because
the panel clearly and indisputably exceeded the lawful
exercise of its prescribed jurisdiction under 28 U.S.C.
§ 1651 by issuing a writ of mandamus to the district court
without attempting to satisfy the requisite conditions set
forth in Cheney, under circumstances that indisputably
fell short of the Cheney conditions. Instead, by applying
de novo review, the panel used the writ as an end run
DURXQG WKH ÀQDO MXGJPHQW UXOH 86& § 1291, and
impermissibly “used [the writ] as a substitute for the
regular appeals process.” Cheney, 542 U.S. at 380–81.
Here, by contrast, the three Cheney conditions are
met. Plaintiffs’ right to issuance of the writ is clear
14
and indisputable because, in exceeding its prescribed
jurisdiction, the panel deprived Plaintiffs of (1) their right
to fair process under the federal rules, Fed. R. Civ. P. 15(a)
WKHLUULJKWWRDGLUHFWDSSHDORIÀQDOMXGJPHQW
U.S.C. § )HG 5 $SS 3 DQG VSHFLÀFDOO\
the right to be heard in the court of appeals on whether
their second amended complaint was futile or whether
LWVXIÀFLHQWO\DOOHJHGUHGUHVVDELOLW\LQOLJKWRIWKH
Opinion. Cheney, 542 U.S. at 381 (condition two). The panel
lacked jurisdiction to make the latter determination.
Unlike the Government below, Plaintiffs have no other
right of appeal. A petition for the rare writ of certiorari,
which “is not a matter of right, but of judicial discretion,”
does not provide Plaintiffs “adequate means to attain the
relief [they] desire” and to which the law entitles Plaintiffs:
a fair process in the district court to seek “freely give[n]
OHDYHµWRDPHQGDQGDÀQDOMXGJPHQWIROORZHGE\DIXOO
appeal in the court of appeals as a matter of right. Sup.
Ct. R. 10; cf. 28 U.S.C. § 1291; Cheney, 542 U.S. at 380
(condition one); see also +ROOLQJVZRUWK Y 3HUU\, 558
U.S. 183, 190–91, 199 (2010). Inversely, the Government
can appeal “as a matter of course” every aspect of the
GLVWULFWFRXUW·VRUGHUVRQÀQDOMXGJPHQWDQGPHDQZKLOH
no cognizable harm will befall it. In re United States, 884
F.3d at 836; In re United States, 895 F.3d at 1106; Bankers
/LIH &DV&RY+ROODQG, 346 U.S. 379, 383–84 (1953);
5RFKHY(YDSRUDWHG0LON$VV·Q, 319 U.S. 21, 30 (1943).
“[T]he writ is appropriate” to correct the “exceptional
circumstances” of the panel’s “judicial ‘usurpation of
power.’” Cheney, 542 U.S. at 380–81 (citation omitted;
condition three); Sup. Ct. R. 20.1. The panel disrupted the
judicial hierarchy by commandeering the district court’s
discretionary power to grant or deny leave to amend, see
15
Foman, 371 U.S. at 182; usurping the district court’s role as
WKHGHFLVLRQPDNHURIÀUVWLQVWDQFHsee )UDQNVY%RZPDQ
7UDQVS &R, 424 U.S. 747, 779 (1976); and improperly
depriving Plaintiffs of an appeal as of right related to
DQ\ GHÀFLHQFLHV LQ WKHLU VHFRQG DPHQGHG FRPSODLQW IRU
declaratory relief. See 28 U.S.C. § 1291. Mandamus is
also “appropriate under the circumstances” where the
Government’s alleged harm of expending attorneys’
fees and costs in the ordinary course of litigation is not
cognizable for mandamus, compared to the irreversible
harm of denying due process to these young Plaintiffs
who lack political power and whose lives and health are
being increasingly injured by their Government. Cheney,
542 U.S. at 381; App. 21a, 103a, 107a–09a, 112a–14a. The
panel’s abuse of an extraordinary writ is so exceptional
as to warrant a writ of mandamus from this Court.
Because Plaintiffs meet the three conditions of Cheney
and this Court’s Rule 20.1, a writ of mandamus should
issue directing the Ninth Circuit to vacate its own writ
of mandamus and remand the case to the district court
without delay.
I.
PLAINTIFFS’ RIGHT TO THE WRIT IS CLEAR
AND INDISPUTABLE BECAUSE THE NINTH
CIRCUIT EXCEEDED ITS JURISDICTION
BY TERMINATING PROCEEDINGS IN THE
DISTRICT COURT PRIOR TO FINAL JUDGMENT
Plaintiffs’ “right to issuance of the writ is clear and
indisputable” because the panel committed egregious
legal errors. Cheney, 542 U.S. at 381 (internal quotations
omitted).
16
A.
The panel’s order did not conduct, and indeed
FRQWUDYHQHV WKH UHTXLVLWH LQTXLU\ XQGHU
Cheney
The panel clearly and indisputably exceeded the lawful
exercise of its prescribed jurisdiction by ignoring the legal
standard for granting a petition for a writ of mandamus.
This Court’s prior order in this very case made clear that
mandamus may issue only when the Cheney conditions are
met. App. 165a–66a (citing +ROOLQJVZRUWK, 558 U.S. at 190;
Cheney, 542 U.S. at 380–81 (2004)); see also Cheney, 542
U.S. at 380 (“[T]hree conditions mustEHVDWLVÀHGEHIRUH
it may issue.”) (emphasis added). The requirements in
Cheney are the culmination of two centuries of this Court’s
precedents. 6HHHJ, .HUU, 426 U.S. at 403; :LOOY8QLWHG
States, 389 U.S. 90, 96 (1967); Ex parte Fahey, 332 U.S.
258, 260 (1947); Roche, 319 U.S. at 30; Am. Const. Co. v.
-DFNVRQYLOOH7 .:5\&R., 148 U.S. 372, 379 (1893);
%DQN RI &ROXPELD Y 6ZHHQ\, 26 U.S. 567, 569 (1828).
Nearly 50 years ago this Court wrote that it is a “rule that
the writ will issue only in extraordinary circumstances”
after the “various conditions for its issuance” have been
satisfied, identifying the same three requirements
VSHFLÀHGLQCheney. .HUU, 426 U.S. at 403.
In contravention of this standard, which allows no
exceptions for wielding the most potent judicial tool, the
panel granted the Government’s seventh petition for a writ
of mandamus without conducting any analysis under, or
even citing, Cheney, its predecessors, or its successors.
App. 2a–5a. The panel also evaded its own circuit’s seminal
mandamus standard set forth in Bauman v. U.S. Dist.
Ct., 557 F.2d 650 (9th Cir. 1977), which the Ninth Circuit
applies in a manner “consistent with” Cheney. In re United
States, 791 F.3d 945, 955 n.7 (9th Cir. 2015).
17
Instead, the panel created its own standard for
mandamus, disassociated from Cheney’s conditions
and relying on an isolated pre-Cheney case involving
DWWHPSWHG´UHOLWLJDWLRQRIÀQDOMXGJPHQWVµon the merits
LQDQRWKHUZLVHXQDSSHDODEOHFODVVFHUWLÀFDWLRQGHFLVLRQ
as justifying de novo review here. App. 2a–3a (citing
9L]FDLQR, 173 F.3d at 719 and misapplying the Court’s
treatment of 9L]FDLQRin 3LW5LYHU7ULEHY86)RUHVW
Serv., 615 F.3d 1069, 1078–80 (9th Cir. 2010)). In creating
a new mandamus test to enforce the prior mandate
EHIRUHÀQDOMXGJPHQWWKHSDQHOGLVUHJDUGHGWKH1LQWK
Circuit’s holding that “[n]othing in Bauman allows for this
[9L]FDLQR] exception.” 3LW5LYHU7ULEH, 615 F.3d at 1079
n.1; VHH DOVR ,Q UH 7UDGH &RP %DQN %\ 7KURXJK
Fisher, 890 F.3d 301, 303 (D.C. Cir. 2018) (rejecting a
9L]FDLQRstyled exception because “[n]either Cheney
nor any later case created an exception for mandamus
actions seeking to enforce a mandate”). By issuing the writ
without analyzing each pre-requisite for mandamus, the
panel “abdicat[ed] . . . the very expository and supervisory
functions” that an appellate court serves, :LOO, 389 U.S.
at 107, and committed “an abuse of judicial power.” Roche,
319 U.S. at 31.
B. The panel contravened Plaintiffs’ clear and
indisputable right to fair process and a right
RIDSSHDODWÀQDOMXGJPHQW
In the district courts, the Federal Rules of Civil
Procedure and this Court’s precedent preserve litigants’
ULJKW WR FXUH MXULVGLFWLRQDO GHÀFLHQFLHV OLNH VWDQGLQJ
and, accordingly, jurisdictional dismissals are without
prejudice. 6WHHO&RY&LWL]HQVIRUD%HWWHU(QY·W, 523 U.S.
83, 94 (1998); 6HPWHN,QW·O,QFY/RFNKHHG0DUWLQ&RUS,
18
531 U.S. 497, 505 (2001); Fed. R. Civ. P. 15(a)(2). “If the
underlying facts or circumstances relied upon by a plaintiff
may be a proper subject of relief,” leave to amend should be
freely given. Foman, 371 U.S. at 182. In recognition of this
foundational procedural rule, Ninth Circuit precedent is
clear that when a dismissal for lack of jurisdiction is silent
on leave to amend, the district court retains discretion to
grant or deny amendment. 6)+HUULQJ$VV·QY'HS·WRI
the Interior, 946 F.3d 564 (9th Cir. 2019); VHHDOVR)OHFN
$VVRFV,QFY3KRHQL[, 471 F.3d 1100, 1106–07 (9th Cir.
2006) (jurisdictional dismissals are without prejudice). “It
is black-letter law that a district court must give plaintiffs
DWOHDVWRQHFKDQFHWRDPHQGDGHÀFLHQWFRPSODLQWDEVHQW
a clear showing that amendment would be futile.” 1DW·O
&RXQFLORI/D5D]DY&HJDYVNH, 800 F.3d 1032, 1041 (9th
Cir. 2015) (citing (PLQHQFH &DS //& Y $VSHRQ ,QF,
316 F.3d 1048, 1052 (9th Cir. 2003)).
7KHSDQHOÁRXWHGWKHVHUXOHVKHUH:KHQ3ODLQWLIIV·
2015 complaint was dismissed without prejudice solely
on the redressability prong of standing on interlocutory
appeal by the Ninth Circuit in 2020, after finding
Plaintiffs’ burden to show injury in fact and causation
VDWLVÀHG WKH FRXUW ZDV VLOHQW RQ OHDYH WR DPHQG $SS
112a–13a, 127a. Plaintiffs had never previously sought
leave to amend because they had prevailed in the district
court on Defendants’ standing challenges. App. 105a.
Accordingly, on remand, Plaintiffs retained the right per
5XOH D WRVHHNOHDYHWRDPHQGIRUWKHÀUVWWLPHWR
address the Ninth Circuit’s jurisdictional concern. See
DOVR %DFRQ Y :RRGZDUG, 104 F.4th 744, 753 (9th Cir.
2024) (A “district court should grant leave to amend even
LIQRUHTXHVWWRDPHQGWKHSOHDGLQJZDVPDGH, unless it
determines that the pleading could not be cured by the
19
allegation of other facts.”). Indeed, “Rule 15(a) declares
that leave to amend ‘shall be freely given when justice
so requires’; this mandate is to be heeded.” Foman, 371
U.S. at 182.
Plaintiffs’ right to seek leave to amend is clear and
indisputable under Rule 15. Foman, 371 U.S. at 182.
“[O]utright refusal to grant the leave without any
justifying reason appearing for the denial is . . . abuse of
[ ] discretion and inconsistent with the spirit of the Federal
Rules.” Id-XVWLÀHGUHDVRQVIRUGHQ\LQJOHDYHWRDPHQG
include “undue delay,” “bad faith,” “repeated failure to
FXUH GHÀFLHQFLHV E\ DPHQGPHQWV SUHYLRXVO\ DOORZHGµ
“undue prejudice to the opposing party by virtue of
allowance of the amendment,” or “futility of amendment.”
Id. Absent such circumstances, leave to amend “should,
as the rules require, be ‘freely given.’” Id.
Because “the grant or denial of an opportunity to
amend is within the discretion of the District Court,”
Foman, 371 U.S. at 182, mandamus jurisdiction could not
lie below to “direct the exercise of judgment or discretion
in a particular way.” :LOEXUY8QLWHG6WDWHVH[UHO.DGULH,
281 U.S. 206, 218 (1930); VHHDOVR e.g., :RUNY8QLWHG6WDWHV
ex rel. Rives, 267 U.S. 175, 177 (1925); Panama Canal Co.
Y*UDFH/LQH,QF, 356 U.S. 309, 318 (1958). “Where a
matter is committed to a district court’s discretion, it
cannot be said that a litigant’s right to a particular result
is ‘clear and indisputable.’” :LOOY&DOYHUW)LUH,QV&R,
437 U.S. 655, 665–66 (1978) (plurality); Franks, 424 U.S.
at 779 (“[O]wing to the structure of the federal judiciary
WKHVHFKRLFHVDUHRIFRXUVHOHIWLQWKHÀUVWLQVWDQFHWR
the district courts.”). As a highly discretionary district
court function, orders granting leave to amend are not
20
amenable to the extraordinary conditions of mandamus,
EXWDUHRWKHUZLVHIXOO\UHYLHZDEOHRQDQDSSHDORIÀQDO
judgment.&RKHQY%HQHÀFLDO,QGXV/RDQ&RUS, 337 U.S.
541, 546 (1949) (“Appeal gives the upper court a power of
review, not one of intervention.”).
Nonetheless, while the district court performed this
required and discretionary Rule 15(a)(2) function, carefully
addressing the Foman circumstances, the Ninth Circuit
has never done so, instead presumptively denying leave
to amend via the writ without applying the appropriate
legal standard. App. 2a–5a; $VKODQG Y /LQJ7HPFR
9RXJKW ,QF, 711 F.2d 1431, 1436 (9th Cir. 1983) (“The
trial court’s grant of leave to amend the pleadings under
Fed.R.Civ.P. 15(a) is reviewed for abuse of discretion.”).
On improper de novo review, the panel invoked the “spirit”
of the prior mandate as leaving no room for amendment.
App. 3a–4a. However, writs of mandamus cannot issue on
a panel’s invocation of “spirit” but on mandatory Cheney
conditions. Moreover, the Ninth Circuit’s 2020 Opinion
never questioned nor addressed Foman, futility, or
Rule 15, not even in spirit. See generally App. 101a–64a.
The panel’s writ ignored Foman and Plaintiffs’ second
amended complaint entirely. App. 1a–5a. The effect of
the panel’s writ was to deprive Plaintiffs of their right
to appellate review of their second amended complaint,
ZKLFKWKH\ZRXOGKDYHEHHQDIIRUGHGRQÀQDOMXGJPHQW
28 U.S.C. § 1291; Fed. R. App. P. 3, 4; see App. 23a.
The only court that conducted a futility analysis—the
district court—concluded that amendment would not be
futile. App. 98a. The panel did not review that decision
for an abuse of discretion, nor did it rule that Plaintiffs
GLGQRWFXUHWKHVWDQGLQJGHÀFLHQF\WKURXJKDPHQGPHQW
21
App. 1a–5a. Further, even if a writ of mandamus could
be used to review a discretionary interlocutory order, any
error by the district court on granting leave to amend
was not clear and indisputable where the Ninth Circuit’s
2020 jurisdictional dismissal was silent on amendment,
where district courts have broad discretion to grant
leave to amend under Rule 15(a), and where this Court
issued an intervening Article III redressability opinion in
8]XHJEXQDPY3UHF]HZVNL, 592 U.S. 279, 141 S. Ct. 792,
798, 801 (2021) (construing nominal damages as a form
RIGHFODUDWRU\UHOLHIVXIÀFLHQWIRU$UWLFOH,,,VWDQGLQJ
Fed. R. Civ. P. 15(a); Foman, 371 U.S. at 182.
In the same vein, any error in the district court’s
redressability analysis regarding Plaintiffs’ claims for
declaratory relief in their second amended complaint
where the Government did not contest injury and causation,
was not clear and indisputable and is subject to review on
GLUHFW DSSHDO RI ÀQDO MXGJPHQW 6HH 0HG,PPXQH ,QF
Y *HQHQWHFK ,QF, 549 U.S. 118, 127 (2007) (A claim
for declaratory judgment is justiciable if it entails “a
substantial controversy, between parties having adverse
OHJDO LQWHUHVWV RI VXIÀFLHQW LPPHGLDF\ DQG UHDOLW\>@µ
'LVWULFW FRXUWV DUH YHVWHG ´ZLWK GLVFUHWLRQ LQ WKH ÀUVW
instance” to determine whether declaratory judgment is
proper, “because facts bearing on the usefulness of the
GHFODUDWRU\MXGJPHQWUHPHG\DQGWKHÀWQHVVRIWKHFDVH
for resolution, are peculiarly within their grasp.” Id. at
136.
Thus, the panel, in issuing the writ of mandamus
EHIRUH ÀQDO MXGJPHQW GHQLHG 3ODLQWLIIV WKHLU ULJKWV WR
both a Rule 15(a)(2) process and thereafter to appellate
review under Foman’s standard in the court of appeals.
22
C.
The panel ignored that the Government had
other adequate means to obtain full relief and
ZRXOGVXIIHUQRFRJQL]DEOHKDUP
The panel did not address the most important
condition precedent to mandamus. If it had, it would have
clearly and indisputably concluded that the Government
had “other adequate means to attain the relief [it] desires,”
i.e., “the regular appeals process.” Cheney, 542 U.S. at
380–81. Moreover, the Government’s reliance on only noncognizable reasons for seeking a writ of mandamus as a
substitute for appeal—the loss of attorneys’ fees and time
in the ordinary course of litigation—could not support
mandamus. In re United States, 884 F.3d at 836; In re
United States, 895 F.3d at 1106; 6FKODJHQKDXIY+ROGHU,
379 U.S. 104, 110 (1964); Bankers Life, 346 U.S. at 383–84;
Roche, 319 U.S. at 30.
If “[a] litigant is free to seek review of the propriety
RI >WKH RUGHU LQ TXHVWLRQ@ RQ GLUHFW DSSHDO DIWHU D ÀQDO
judgment has been entered[, . . . ] it cannot be said that
the litigant ‘has no other adequate means to seek the
relief he desires.’” $OOLHG &KHP &RUS Y 'DLÁRQ ,QF,
449 U.S. 33, 36 (1980). This Court has long held “that the
extraordinary writs cannot be used as substitutes for
appeals . . . even though hardship may result from delay
and perhaps unnecessary trial.” Bankers Life, 346 U.S. at
383. Here, the district court’s interlocutory orders subject
to mandamus—grant of leave to amend and order on
PRWLRQWRGLVPLVV³ZHUHUHYLHZDEOHRQDSSHDODIWHUÀQDO
judgment. App. 20a–21a, 23a; .DPDOY(GHQ&UHDPHU\
LLC, 88 F.4th 1268, 1275 (9th Cir. 2023).
23
The panel clearly and indisputably erred because the
Government made no cognizable showing that the regular
appeals process was “[in]adequate.” See Cheney, 542
U.S. at 380. The panel “failed to ask this question.” Id. at
391. The Government’s argument to that effect consisted
only of its desire to avoid trial and the cost of litigating
in the district court. Ct. App. VII Doc. 1.1 at 47–49. The
Government’s position, however, was foreclosed by this
Court’s repeated emphasis that the cost and inconvenience
RIOLWLJDWLRQLVQRWDSHUPLVVLEOHMXVWLÀFDWLRQIRUVHHNLQJ
mandamus as a substitute for appeal. “It is . . . well
settled, that the writ is not to be used as a substitute for
appeal, even though hardship may result from delay and
perhaps unnecessary trial[.]” Schlagenhauf, 379 U.S. at
110 (citations omitted); see also Bankers Life, 346 U.S.
at 383–84. “[W]e must take it Congress contemplated
>HYHQ VLJQLÀFDQW LQFRQYHQLHQFH@ LQ SURYLGLQJ WKDW RQO\
ÀQDO MXGJPHQWV VKRXOG EH UHYLHZDEOHµ 5RFKH 319 U.S.
at 30. “As was pointed out by Chief Justice Marshall, to
grant the writ in such a case would be a ‘plain evasion’ of
WKH &RQJUHVVLRQDO HQDFWPHQW WKDW RQO\ ÀQDO MXGJPHQWV
be brought up for appellate review.” Id. (quoting Bank of
Columbia, 26 U.S. at 569).
The Government’s argument of harm also was
foreclosed twice before by the Ninth Circuit in this
very case. The Ninth Circuit previously rejected the
Government’s earlier petitions for mandamus because
“litigation burdens are part of our legal system[.]” In re
United States, 884 F.3d at 836; see also In re United States,
895 F.3d at 1106 (“The government made this argument
LQLWVÀUVWPDQGDPXVSHWLWLRQDQGZHUHMHFWHGLWµ 7KH
panel ignored this prior precedent.
24
The panel clearly and indisputably exceeded its
jurisdiction by rewarding the Government’s persistence in
raising the same non-colorable argument for mandamus.
Because precedent is clear that the Government’s desire
to avoid further litigation did not justify mandamus under
Cheney, Plaintiffs have a clear and indisputable right to
a writ of mandamus to the Ninth Circuit to remand to
the district court to resume ordinary litigation practice.
II. THERE ARE NO OTHER ADEQUATE MEANS
FOR PLAINTIFFS TO OBTAIN THE RELIEF
THEY SEEK
Plaintiffs meet the conditions for mandamus relief
in this Court because, unlike the Government, they
have “no other adequate means to attain the relief [they]
desire[ ].” Cheney, 542 U.S. at 380. Plaintiffs’ second
amended complaint has not been reviewed on appeal by
the circuit court, nor can it now in light of the panel’s
writ. Only a writ of mandamus to the Ninth Circuit will
preserve Plaintiffs’ right to appellate review of their
VHFRQGDPHQGHGFRPSODLQWLQWKHFRXUWRIDSSHDOVÀUVW
before the merits issues are presented to this Court. Such
mandamus can only issue to a lower court from a higher
court. Marbury v. Madison, 5 U.S. 137, 147 (1803) (citing
3 Blackstone’s Commentaries 110).
In the Ninth Circuit, Plaintiffs have no other adequate
means to attain their relief because the panel’s writ is
not reviewable by a merits panel “on direct appeal after
D ÀQDO MXGJPHQWµ Allied Chem. Corp., 449 U.S. at 36.
5HYLHZ DIWHU ÀQDO MXGJPHQW XQGHU 86& § 1291 is
reserved for “claims of district court error.” Dupree v.
Younger, 598 U.S. 729, 734 (2023) (internal quotations
omitted). In addition, the panel’s writ of mandamus was
25
not an order for which “a statutory method of appeal has
been prescribed,” Roche, 319 at 27–28.
A petition for a writ of certiorari, which “is not
a matter of right, but of judicial discretion,” Sup. Ct.
R. 10, does not provide Plaintiffs adequate means to
attain relief for the cognizable harms argued above. See
+ROOLQJVZRUWK, 558 U.S. at 190–91, 199; cf. 28 U.S.C.
§ 1291. Losing parties in civil litigation in federal court
are entitled to a direct appeal in the court of appeals
without petitioning the court for review. Fed. R. App. P.
4. Litigants have no appeal as of right in this Court where
fewer than two percent of petitions are granted. 2 The rare
possibility of a writ of certiorari is not a bar for satisfying
the requirements for a writ of mandamus in this Court. See
+ROOLQJVZRUWK, 558 U.S. at 190–91, 199 (granting a stay
SHQGLQJWKHÀOLQJRIDSHWLWLRQIRUDZULWRIPDQGDPXVRU
for certiorari, and holding there was “a fair prospect” that
a majority of this Court would grant applicants’ petition
IRU D ZULW RI PDQGDPXV DQG ZRXOG ÀQG WKDW DSSOLFDQWV
had no other adequate means to attain relief, even though
certiorari was also available). Thus, under +ROOLQJVZRUWK,
the potential availability of certiorari is not an adequate
substitute for the mandamus relief Plaintiffs are seeking
here.
Because the full record below encompasses nine years
of litigation spanning eleven dockets in three courts,
including seven decisions by the circuit court, certiorari
is also a much broader writ than necessary to vacate the
panel’s improperly granted writ of mandamus. Thus, a
2. U.S. Courts, About the U.S. Courts of Appeals, https://
www.uscourts.gov/about-federal-courts/court-role-and-structure/
about-us-courts-appeals (last visited Sept. 6, 2024).
26
writ of certiorari does not provide an “avenue far short
of mandamus to achieve precisely the relief [Plaintiffs]
seek.” .HUU, 426 U.S. at 405. Plaintiffs’ petition for a
writ of certiorari, if it becomes necessary because this
petition is denied, would present a different set of legal
questions encompassing a wider set of rights than those
at issue here, including review of the Ninth Circuit’s 2020
2SLQLRQRQUHGUHVVDELOLW\DQGUHYLHZIRUWKHÀUVWWLPHRI
the district court’s decisions to grant leave to amend and
deny in part the Government’s motion to dismiss Plaintiffs’
second amended complaint. Certiorari thus cannot provide
substitute relief for the panel’s improperly granted writ
of mandamus.
III. MANDAMUS IS APPROPRIATE TO UNDO THE
MANIFOLD HARM CREATED BY THE NINTH
CIRCUIT’S DECISION
Here, “the writ is appropriate under the circumstances”
because it would remedy the harm done by the panel’s
writ to the orderly functioning of the federal court
system; eliminate the dilemma created by the panel for
district courts; undo the panel’s potent disregard of the
district court here; and remove the unjust prejudice to
the Plaintiffs. Cheney, 542 U.S. at 381; see Schlagenhauf,
379 U.S. at 111, 120 (finding third Cheney condition
VDWLVÀHGZKHQGLVWULFWFRXUWRUGHUHGPHQWDODQGSK\VLFDO
examinations without a showing of good cause).
$ 0DQGDPXVKHUHZRXOGXQGRWKHKDUPWRWKH
RUGHUO\IXQFWLRQLQJRIWKHIHGHUDOFRXUWV\VWHP
FUHDWHGE\WKHSDQHO·VZULW
A writ of mandamus by this Court is appropriate to
correct the panel’s harm to the orderly functioning of the
27
federal court system. “[T]he writ serves a vital corrective
and didactic function.” :LOO, 389 U.S. at 107. If this Court
allows the panel’s issuance of the writ to stand, it raises
unsettling questions for the lower courts and expands the
MXULVGLFWLRQDOUROHRIFLUFXLWFRXUWVSULRUWRÀQDOMXGJPHQW
May other motions panels use the writ of mandamus to
cut off proceedings in the district court they disagree
ZLWK OHDSIURJJLQJ WKH QRUPDO UXOHV RI FHUWLÀFDWLRQ IRU
LQWHUORFXWRU\ DSSHDO RU DZDLWLQJ ÀQDO MXGJPHQW" :LOO
district courts lose the discretion to interpret and apply
the circuit court’s mandates regarding jurisdictional
dismissals and consider whether leave to amend should be
JUDQWHGRQUHPDQG":KHQWKH*RYHUQPHQWLVGHIHQGLQJ
DJDLQVWDVXLWLWEHOLHYHVZLOOKDYHVLJQLÀFDQWFRQVHTXHQFHV
if plaintiffs prevail on the merits, can it repeatedly pursue
PDQGDPXVEHIRUHÀQDOMXGJPHQWDVD´JHWRXWRIWKHFDVH
free” card merely to avoid the costs of litigation—until it
GUDZVWKHULJKWWKUHHMXGJHSDQHO"3
A writ of mandamus by this Court to the Ninth Circuit
would correct the Department of Justice’s repeated efforts
WRDYRLGWKHÀQDOMXGJPHQWUXOHWKURXJKPXOWLSOHSHWLWLRQV
for writs of mandamus. By granting the Government’s
seventh petition for a writ of mandamus—which contained
the same defects as its previous six failed attempts—the
panel rewarded the Government’s sheer perseverance in
FRQWLQXLQJ WR ÀOH VXFFHVVLYH QRQFRORUDEOH SHWLWLRQV IRU
writs of mandamus as the case proceeded in the district
court. Because “[t]he United States is a defendant in close
WRRQHÀIWKRIWKHFLYLOFDVHVÀOHGLQIHGHUDOFRXUW>@µDQ\
escalation of this strategy by the Department of Justice
3. To date, 12 different Ninth Circuit judges and four
different panels have issued orders or opinions in this case.
28
could easily glut the appellate courts with meritless
mandamus petitions. See In re United States, 884 F.3d
at 836; Juliana, 949 F.3d at 1127 n.1 (Friedland, J.,
dissenting). A writ of mandamus by this Court reversing
the Ninth Circuit’s improper writ would instruct litigants
in federal court—especially the Government—that the
WDFWLF RI SHUVLVWHQWO\ ÀOLQJ PHULWOHVV SHWLWLRQV ZLOO QRW
bear fruit.
Such instruction by this Court would prevent, in
future cases, the waste of time and resources that the
Government’s mandamus strategy created in this case.
The weeks-long trial the government sought mandamus
relief from is not exceptional in important federal cases.
See 8QLWHG6WDWHVY*RRJOH, No. 20-cv-3010 (APM), 2024
WL 3647498, at *5 (D.D.C. Aug. 5, 2024) (DOJ tried a
nine-week-long case). This Court’s jurisprudence is
clear that even the inconvenience and cost of a trial “of
VHYHUDOPRQWKV·GXUDWLRQµLVLQVXIÀFLHQWO\H[WUDRUGLQDU\
for mandamus. Roche, 319 U.S. at 30. Moreover, the
Government’s resort to mandamus proved far more
LQHIÀFLHQWDQGPRUHH[SHQVLYHWKDQWKHRUGLQDU\OLWLJDWLRQ
process would have been. The Government has spent
more time and expense prematurely running to the Ninth
Circuit and this Court for relief than it would have had
the October 2018 trial been allowed to proceed. Compare
Case No. 18A410, Appl. for Stay at 5a (Government counsel
Montero’s declaration that trial would have entailed 7,300
attorney and paralegal hours) ZLWK D. Ct. Doc. 571-1
¶¶ 2–3 (Government counsel Montero’s declaration that
post-October 2018 litigation entailed over 8,000 attorney
and paralegal hours). Those efforts turned this case into
a decade-long procedural, rather than merits, contest,
29
grossly exceeding the median length of civil cases in the
86GLVWULFWFRXUWVRIPRQWKVIURPÀOLQJWRWULDO4
% 0DQGDPXV ZRXOG HOLPLQDWH WKH GLOHPPD
FUHDWHGE\WKHSDQHOIRUGLVWULFWFRXUWV
The panel’s forceful rebuke of the district court under
these circumstances creates an untenable dilemma for
all district courts. On the one hand, if a district court
denies leave to amend after a jurisdictional dismissal, it
risks reversal for abuse of discretion, because Rule 15(a)
mandates that leave shall be “freely” given. On the other
hand, if the district court grants leave to amend after
a jurisdictional dismissal, it now risks mandamus, as
demonstrated by the panel’s issuance of mandamus here.
District courts cannot exercise their discretion and avoid
this predicament simply by relying on binding precedent
on point, because the district court below did exactly that.
See App. 89a–90a (relying on 6)+HUULQJ, 946 F.3d at
574). A writ of mandamus from this Court would eliminate
the dilemma.
& 0DQGDPXV ZRXOG XQGR WKH SDQHO·V SRWHQW
disregard of this district court
Because a writ of mandamus is “one of ‘the most
potent weapons in the judicial arsenal,’” Cheney, 542 U.S.
at 380 (quoting :LOO, 389 U.S. at 107), “[d]ue regard” must
be given “for the extremely awkward position in which
it places the District Judge[.]” :LOO, 389 U.S. at 106–07.
4. Cong. Rsch. Ser v., /DZVXLWV $JDLQVW WKH )HGHUDO
*RYHUQPHQW %DVLF )HGHUDO &RXUW 3URFHGXUH DQG 7LPHOLQHV
(Dec. 22, 2020), https://crsreports.congress.gov/product/pdf/IF/
IF11349.
30
Mandamus constitutes a harsh rebuke of a district judge
because it “ha[s] the unfortunate consequence of making
the judge a litigant.” Ex parte Fahey, 332 U.S. at 260;
VHH :KROH :RPDQ·V +HDOWK Y -DFNVRQ, 595 U.S. 30, 40
(2021) (“Judges exist to resolve controversies about a
law’s meaning or its conformance to the Federal and
State Constitutions, not to wage battle as contestants in
the parties’ litigation.”). Here, the panel unfairly issued
its May 1, 2024 writ of mandamus to the district court
without any inquiry into whether the district court had
clearly and indisputably erred in resolving controversies
before it, in conformance with the Constitution and this
Court’s precedent. The panel never analyzed Plaintiffs’
2023 second amended complaint, and therefore, could
not know if the district court erred in concluding the
DPHQGPHQWFXUHGWKHMXULVGLFWLRQDOGHÀFLHQFLHVWKH1LQWK
Circuit found in 2020.
Had the district court proceeded on Plaintiffs’ 2015
complaint, which was dismissed by the Ninth Circuit on
standing grounds, such action would have been a clear
and indisputable violation of the Ninth Circuit’s 2020
mandate. However, the district court did not proceed on
the 2015 complaint. It heeded the mandate and considered
Plaintiffs’ motion for leave to amend in light of the 2020
Opinion, as it was required to do, granted leave under a
Foman analysis, in concert with circuit precedent, and
later denied in part and granted in part the Government’s
subsequent motion to dismiss, further narrow ing
Plaintiffs’ second amended complaint. App. 54a, 73a–74a,
87a–94a, 100a. The question of whether that operative
complaint now meets the requirements of Article III
and the Declaratory Judgment Act is a question that can
EH DGGUHVVHG RQ GLUHFW DSSHDO RI ÀQDO MXGJPHQW LQ WKH
ordinary course of litigation.
31
A writ of mandamus from this Court would reverse
the panel’s unfair rebuke of a former chief judge and
senior member of the judiciary, who has never before
received such a writ, and was simply following this
&RXUW·VSUHFHGHQWWRIXOÀOOKHUUROHLQWKHIHGHUDOFRXUW
system. For nine years, the district court has received the
Charlie Brown football treatment because the “breadth of
Plaintiffs’ claims is striking” and justiciability “presents
substantial grounds for difference of opinion.” App. 169a.
While that may be true, it does not excuse, and provides
even more reason to ensure, that the case proceeds strictly
according to the rules and arrives at each level of the
MXGLFLDU\IXOO\GHYHORSHG$IWHUDOOLQÀQGLQJLQMXU\DQG
FDXVDWLRQVDWLVÀHGLQWKH1LQWK&LUFXLWZURWH ´$
substantial evidentiary record documents that the federal
government has long promoted fossil fuel use despite
knowing that it can cause catastrophic climate change,
and that failure to change existing policy may hasten an
environmental apocalypse.” App. 103a.
' 0DQGDPXVZRXOGUHPRYHXQMXVWSUHMXGLFHWR
the Plaintiffs and correct uneven treatment
A writ of mandamus from this Court is also appropriate
because it would “aid . . . the appellate jurisdiction which
might otherwise be defeated by the unauthorized action of
the court below.” Ex parte United States, 287 U.S. 241, 246
(1932). Because this case was resolved by a motions panel
in the form of mandamus, rather than by a merits panel
on direct appeal, Plaintiffs’ case has now been dismissed
on jurisdictional grounds without leave to amend and
without appeal as of right to a merits panel—despite the
GLVWULFWFRXUW·VÀQGLQJWKDWOHDYHWRDPHQGZDVZDUUDQWHG
in this case, and without any court having concluded that
amendment would be futile. See Foman, 371 U.S. at 182.
32
The requested writ is appropriate to return the parties
to the status quo that existed before the panel improperly
issued its writ.
Justice requires even-handed treatment of Plaintiffs
and the Government. Having repeatedly invoked the nonmerits jurisdiction of this Court and the Ninth Circuit,
the Government should not be heard to protest when it
is invoked by the other side. A return to the status quo
would restore Plaintiffs’ rights to rely on the integrity of
the rules of civil and appellate procedure and this Court’s
precedent, and compel the Government to also abide by
them. Had the panel denied mandamus, the parties would
HTXDOO\ KDYH ULJKWV DIWHU ÀQDO MXGJPHQW LQ WKH GLVWULFW
court to direct appeal to a merits panel under 28 U.S.C.
§ 1291 of any adverse decision. See 9th Cir. Gen. Order
3.6(d).
The disregard of fair process here involves the matter
of irreversible threats to Plaintiffs’ lives and safety. The
young Plaintiffs’ ongoing physical and mental health
injuries, alongside harms to their homes, sacred tribal
lands, and ways of life, implicate the most fundamental
of rights safeguarded by our Constitution. 6HH e.g., App.
26a, 47a, 68a, 84a, 112a. Each federal judge to review
Plaintiffs’ Fifth Amendment claims thus far, regarding
the serious infringement of their rights to life and personal
security, 5 has deemed their injuries cognizable, even
if Plaintiffs’ initial request for relief was deemed too
5. The district court, the magistrate judge, and the three
judges impaneled by the Ninth Circuit in 2020 all found Plaintiffs’
KDUPVWREHH[LVWHQWLDO'&W'RFDW PDJLVWUDWHÀQGLQJV
Juliana, 217 F. Supp. 3d at 1250; App. 103a; id. at 130a–31a (Staton,
J., dissenting).
33
ambitious in the Ninth Circuit’s 2020 Opinion. App. 77a,
84a, 104a, 112a, 131a–40a. Claims brought by children
claiming a lifetime of hardship and disabling injuries
imposed by their Government deserve at least fair process
and due consideration in the courts. See Plyler v. Doe,
457 U.S. 202, 222–23, 227–30 (1982) (reviewing under
heightened scrutiny and declaring unconstitutional a
state law and systemic conduct that discriminated against
undocumented children where there was no fundamental
right or suspect class at issue); VHHDOVR:9D6WDWH%G
of Educ. v. Barnette, 319 U.S. 624 (1943) (reexamining
and reversing precedent to protect children’s liberty
interests).
The very purpose of a Bill of Rights was to
withdraw certain subjects from the vicissitudes
of political controversy, to place them beyond
the reach of majorities and officials and to
establish them as legal principles to be applied
by the courts. One’s right to life, liberty, and . . .
other fundamental rights may not be submitted
to vote; they depend on the outcome of no
elections.
Id. at 638. These rights, when infringed, are for the courts
to declare through fair process.
34
CONCLUSION
As the district court concluded in addressing the
Government’s seventh petition for a writ of mandamus
against her:
This Court has great regard for the judicial
process. It has deliberately considered all
motions the parties brought, and its decisions
are accessible for appellate scrutiny in the
due course of litigation. Trial courts across
the country address complex cases involving
similar jurisdictional, evidentiary, and legal
questions as those presented here without
resorting to interlocutory appeal or petitioning
for a writ of mandamus. As Justice Stewart
noted, “the proper place for the trial is in
the trial court, not here.” Baker v. Carr, 369
U.S. 186, 266 (1962) (Stewart, J., concurring.)
Defendants therefore have other means, such
as a direct appeal, to obtain the desired relief.
This Court recommends denying defendants’
petition for writ of mandamus.
App. 24a.
For the foregoing reasons, Plaintiffs respectfully
ask the Court to issue a writ of mandamus to the United
States Court of Appeals for the Ninth Circuit to vacate
its issuance of a writ of mandamus to the U.S. District
Court for the District of Oregon and to remand this case
to the district court for further proceedings.
35
Respectfully submitted,
PHILIP L. GREGORY
GREGORY LAW GROUP
1250 Godetia Drive
Redwood City, CA 94062
A NDREA K. RODGERS
OUR CHILDREN’S TRUST
3026 NW Esplanade
Seattle, WA 98117
September 12, 2024
JULIA A. OLSON
Counsel of Record
OUR CHILDREN’S TRUST
1216 Lincoln Street
Eugene, OR 97401
julia@ourchildrenstrust.org
(415) 786-4825
APPENDIX
i
TABLE OF APPENDICES
Page
APPENDIX A — Order of the United States
&RXUW RI $SSHDOV IRU WKH 1LQWK &LUFXLW ÀOHG
May 1, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1a
APPENDIX B — Judgment of the United States
District Court for the District of Oregon, Eugene
'LYLVLRQÀOHG0D\ 1, 2024 . . . . . . . . . . . . . . . . . . . . . .6a
APPENDIX C — Supplemental Order of the
United States District Court for the District of
2UHJRQ(XJHQH'LYLVLRQÀOHG$SULO 19, 2024. . . . . .7a
A PPEN DI X D — O pi n ion a nd O rder of
the United States District Court for the
District of Oregon, Eugene Division, signed
December 29, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . .25a
APPENDIX E — Opinion and Order of the
United States District Court for the District of
Oregon, Eugene Division, signed June 1, 2023 . . . .79a
APPENDIX F — Opinion of the United States
Court of Appeals for the Ninth Circuit, filed
January 17, 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101a
APPENDIX G — Opinion of the Supreme Court of
WKH8QLWHG6WDWHVÀOHG1RYHPEHU 2, 2018. . . . . . .165a
ii
TABLE OF APPENDICES
Page
APPENDIX H — Opinion of the Supreme Court
RIWKH8QLWHG6WDWHVÀOHG-XO\ . . . . . . . . .169a
APPENDIX I — Order of the United States
Court of Appeals for the Ninth Circuit,
ÀOHG-XO\ . . . . . . . . . . . . . . . . . . . . . . . . . . . 170a
1a
Appendix AA
APPENDIX
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
------------------No. 24-684
D.C. No. 6:15-cv-1517
District of Oregon, Portland
In re: UNITED STATES OF AMERICA.
UNITED STATES OF AMERICA, et al.,
Petitioners,
v.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON, EUGENE,
Respondent,
STATE OF ALABAMA,
Defendant,
XIUHTEZCATL TONATIUH M., through his
Guardian Tamara Roske-Martinez, et al.,
Real Parties in Interest,
THE NATIONAL ASSOCIATION OF
MANUFACTURERS, et al.,
Intervenors,
ENVIRONMENTAL JUSTICE CLINIC –
UNIVERSITY OF MIAMI SCHOOL OF LAW, et al.,
Amici Curiae.
-------------------
2a
Appendix A
Filed:
May 1, 2024
------------------ORDER
------------------Before: BENNETT, R. NELSON, and MILLER, Circuit
Judges.
In the underlying case, twenty-one plaintiffs (the
Juliana plaintiffs) claim that—by failing to adequately
respond to the threat of climate change—the government
has violated a putative “right to a stable climate system
that can sustain human life.” Juliana v. United States,
No. 6:15-CV-01517-AA, 2023 WL 9023339, at *1 (D. Or.
Dec. 29, 2023). In a prior appeal, we held that the Juliana
plaintiffs lack Article III standing to bring such a claim.
Juliana v. United States, 947 F.3d 1159, 1175 (9th Cir.
2020). We remanded with instructions to dismiss on
that basis. Id. The district court nevertheless allowed
amendment, and the government again moved to dismiss.
The district court denied that motion, and the government
petitioned for mandamus seeking to enforce our earlier
mandate. We have jurisdiction to consider the petition.
See 28 U.S.C. § 1651. We grant it.
1. “[M]andamus is an extraordinary remedy . . .
reserved for extraordinary situations.” Gulfstream
Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289
(1988). “[M]andamus is the appropriate remedy” when
3a
Appendix A
“sought on the ground that the district court failed to
follow the appellate court’s mandate.” Vizcaino v. U.S.
Dist. Ct. for W. Dist. of Wash., 173 F.3d 713, 719 (9th Cir.
1999); see also United States v. U.S. Dist. Ct. for S. Dist. of
N.Y., 334 U.S. 258, 263 (1948). We review a district court’s
compliance with the mandate de novo. Pit River Tribe v.
U.S. Forest Serv., 615 F.3d 1069, 1080 (9th Cir. 2010).
2. The petition accuses the district court of failing
to execute our mandate on remand. District courts
must “act on the mandate of an appellate court, without
variance or examination, only execution.” United States
v. Garcia-Beltran, 443 F.3d 1126, 1130 (9th Cir. 2006).
“[T]he only step” that a district court can take is “to obey
the mandate.” Rogers v. Consol. Rock Prods. Co., 114 F.2d
108, 111 (9th Cir. 1940). A district court must “implement
both the letter and the spirit of the mandate, taking
into account the [prior] opinion and the circumstances it
embraces.” Pit River Tribe, 615 F.3d at 1079 (emphasis
added) (cleaned up).
3. In the prior appeal, we held that declaratory relief
was “not substantially likely to mitigate the plaintiffs’
asserted concrete injuries.” Juliana, 947 F.3d at 1170. To
the contrary, it would do nothing “absent further court
action,” which we held was unavailable. Id. We then clearly
explained that Article III courts could not “step into the[]
shoes” of the political branches to provide the relief the
Juliana plaintiffs sought. Id. at 1175. Because neither
the request for declaratory relief nor the request for
injunctive relief was justiciable, we “remand[ed] th[e] case
4a
Appendix A
to the district court with instructions to dismiss for lack
of Article III standing.” Id. Our mandate was to dismiss.
4. The district court gave two reasons for allowing
amendment. First, it concluded that amendment was not
expressly precluded. Second, it held that intervening
authority compelled a different result. We reject each.
7KHÀUVWUHDVRQIDLOVEHFDXVHZH´UHPDQG>HG@ZLWK
instructions to dismiss for lack of Article III standing.”
Id. Neither the mandate’s letter nor its spirit left room
for amendment. See Pit River Tribe, 615 F.3d at 1079.
7KH VHFRQG UHDVRQ WKH GLVWULFW FRXUW LGHQWLÀHG ZDV
that, in its view, there was an intervening change in the
law. District courts are not bound by a mandate when
a subsequently decided case changes the law. In re
Molasky, 843 F.3d 1179, 1184 n.5 (9th Cir. 2016). The
FDVHWKHFRXUWLGHQWLÀHGZDVUzuegbunam v. Preczewski,
which “ask[ed] whether an award of nominal damages
by itself can redress a past injury.” 141 S. Ct. 792, 796
(2021). Thus, Uzuegbunam was a damages case which says
nothing about the redressability of declaratory judgments.
Damages are a form of retrospective relief. Buckhannon
Bd. & Care Home v. W. Va. Dep’t of Health & Human
Res., 532 U.S. 598, 608–09 (2001). Declaratory relief is
prospective. The Juliana plaintiffs do not seek damages
but seek only prospective relief. Nothing in Uzuegbunam
changed the law with respect to prospective relief.
5a
Appendix A
We held that the Juliana plaintiffs lack standing to
bring their claims and told the district court to dismiss.
Uzuegbunam did not change that. The district court is
instructed to dismiss the case forthwith for lack of Article
III standing, without leave to amend.
PETITION GRANTED.
6a
Appendix BB
APPENDIX
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
------------------Civ. No. 6:15-cv-01517-AA
KELSEY CASCADIA ROSE JULIANA, et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.
------------------Filed:
May 1, 2024
------------------JUDGMENT
------------------AIKEN, District Judge:
For the reasons set forth in the Court’s accompanying
Order, this case is DISMISSED.
It is so ORDERED and DATED this 1st day of May
2024.
/s/ Ann Aiken
Ann Aiken
United States District Judge
7a
Appendix CC
APPENDIX
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
------------------Civ. No. 6:15-cv-01517-AA
KELSEY CASCADIA ROSE JULIANA, et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.
------------------Filed:
April 19, 2024
------------------SUPPLEMENTAL ORDER
ADDRESSING PETITION FOR WRIT
OF MANDAMUS
------------------AIKEN, District Judge:
This supplemental order is issued in response to the
invitation of the United States Court of Appeals for the
Ninth Circuit to address defendants’ Petition for Writ
of Mandamus (“Pet.”), ECF No. 581-1, which is pending
before the appellate court, Case No. 24-684.
8a
Appendix C
INTRODUCTION
The young plaintiffs here have compiled an abundance
of factual evidence to support their claim that the
government has known about the dangers posed by
fossil fuel production, and, despite that knowledge, chose
to promote production and consumption of coal, oil, and
gas at increasing levels over decades. The evidence, as
the Ninth Circuit stated, “leaves little basis for denying
that climate change is occurring at an increasingly rapid
pace . . . and stems from fossil fuel combustion.” Juliana
v. United States, 947 F.3d 1159, 1166 (9th Cir. 2020).
A case about climate change, to be sure, raises legal
LVVXHVRIÀUVWLPSUHVVLRQEXWWKHPDWWHUVWKHGLVWULFWFRXUW
has addressed time and again throughout the pendency
of this case are the bread-and-butter of daily trial court
work: injury, causation, and redressability under Article
III; justiciability; viability of claims under Federal Rules of
Procedure 12(b); standards for injunctive and declaratory
relief—foundational inquiries necessary to proceed to
DQ\ IDFWÀQGLQJ SKDVH UHDFKLQJ WKH KHDUW RI SODLQWLIIV·
novel claims. Plaintiffs note in their response that this
is defendants’ seventh petition for writ of mandamus.
Defendants’ petition challenges the district court’s order
granting leave to amend and denying a motion to dismiss
on the pleadings, assigning error to this Court’s rulings
as one would through the usual appellate process.
As the Ninth Circuit has stated, “[t]here is enduring
value in the orderly administration of litigation by the trial
courts, free of needless appellate interference. In turn,
9a
Appendix C
appellate review is aided by a developed record and full
consideration of issues by the trial courts. If appellate
review could be invoked whenever a district court denied
a motion to dismiss, we would be quickly overwhelmed
with such requests, and the resolution of cases would
be unnecessarily delayed.” In re United States, 884
F.3d 830, 837 (9th Cir. 2018). This Court appreciates its
responsibility in the constitutional scheme to develop a
record, consider the facts, and faithfully interpret the
ODZ)XOÀOOLQJWKLVUROHZLOODLGWKHDSSHOODWHFRXUWLQLWV
review in the normal course of appeal, the proper vehicle
for its analysis of defendants’ assignments of error.
BACKGROUND
A factual background relevant to the parties’
arguments on defendants’ now-pending petition for writ
of mandamus is set forth in the district court’s Order on
defendants’ motion to dismiss, ECF No. 565 (December
29, 2023). Otherwise, it has been briefed extensively by
the parties. In their petition, defendants assert that this
Court violated the Ninth Circuit’s mandate in its 2020
decision. This Court highlights portions of the procedural
KLVWRU\LWÀQGVKHOSIXOWRUHFDOO
I.
2020 Appellate Court Decision
The Ninth Circuit did not reach the merits of
plaintiffs’ claims because it found that plaintiffs lacked
standing. In the appellate court’s 2020 decision, writing
for the majority, Judge Hurwitz, joined by Judge Murguia,
began with the basics: “To have standing under Article
10a
Appendix C
III, a plaintiff must have (1) a concrete and particularized
injury that (2) is caused by . . . challenged conduct and
(3) is likely redressable by a favorable judicial decision.”
Juliana, 947 F.3d at 1168. (9th Cir. 2020).
Agreeing with the district court, Judge Hurwitz found
that “[a]t least some plaintiffs” had claimed “particularized
injuries,” since climate change threatened to harm certain
plaintiffs in “concrete and personal” ways if left unchecked.
Id. And, that some plaintiffs had also established causation
because there was “at least a genuine factual dispute
as to whether” U.S. climate policy was a “substantial
factor” in exacerbating plaintiffs’ climate change-related
injuries. Id. at 1169. Thus, plaintiffs’ standing turned on
redressability: “whether the plaintiffs’ claimed injuries
[were] redressable by an Article III court.” Id.
Plaintiffs claimed defendants had violated their
constitutional right to a climate system capable of
sustaining life, and to redress that violation, sought
injunctive relief, including an order directing defendants
to “prepare and implement an enforceable national
remedial plan to phase out fossil fuel emissions and draw
down excess atmospheric CO2 to stabilize the climate
system.” First. Am. Compl. at 94 ¶¶ 2, 6, 7.
“Reluctantly,” the panel found such relief “beyond
[the district court’s] constitutional power.” Juliana, 947
F.3d at 1165. For injunctive relief, the Ninth Circuit was
“skeptical,” but assumed without deciding that plaintiffs
might show that their injuries could be redressed by an
order in their favor. Id. at 1171. That said, the appellate
11a
Appendix C
court based its ruling on the second redressability
prong, stating that an injunction was “beyond the power
of an Article III court to order, design, supervise, or
implement.” Id. The appellate court explained that Article
III courts cannot order injunctive relief unless constrained
by more “limited and precise” legal standards, discernable
in the Constitution, and that plaintiffs must make their
case to the political branches. Id. at 1175.
As for plaintiffs’ request for declaratory relief, the
Ninth Circuit determined that a declaration would be
“unlikely by itself to remediate [plaintiffs’] alleged
injuries.” Juliana 947 F.3d at 1170. Accordingly, the Ninth
&LUFXLW´UHYHUVH>G@WKHFHUWLÀHGRUGHUVRIWKHGLVWULFWFRXUW
and remand[ed]” the case “with instructions to dismiss
for lack of Article III standing.” Id. at 1175.
II. 2023 District Court Orders
After the Ninth Circuit ordered the district court
WR GLVPLVV WKH FDVH SODLQWLIIV PRYHG WR ÀOH D VHFRQG
amended complaint. ECF No. 462. On June 1, 2023, this
Court granted plaintiffs’ motion to amend their complaint.
Order on Second Am. Compl., ECF No. 540 (June 1, 2023).
3ODLQWLIIVKDGQRWLÀHGWKH&RXUWRIDQLQWHUYHQLQJFDVH
from the United States Supreme Court, Uzuegbunam
v. Preczewski, ___U.S.___, 141 S. Ct. 792 (2021) which
held that, for purposes of Article III standing, nominal
damages—a form of declaratory relief—provide the
necessary redress for a completed violation of a legal right.
Id. at 798, 802. That, with this Court’s understanding
that the Ninth Circuit had not expressly foreclosed the
12a
Appendix C
possibility of amendment, led the Court to grant plaintiffs’
motion to amend. This Court explained:
“Absent a mandate which explicitly directs
to the contrary, a district court upon remand
can permit the plaintiff to file additional
pleadings . . . .” San Francisco Herring Ass’n
v. Dep’t of the Interior, 946 F.3d 564, 574 (9th
Cir. 2019) (quoting Nguyen, 792 F.2d at 1502;
see also Sierra Club v. Penfold, 857 F.2d 1307,
1312 (9th Cir. 1988). When mandate in the prior
appeal did not expressly address the possibility
of amendment and did not indicate a clear intent
to deny amendment seeking to raise new issues
not decided by the prior appeal, that prior
opinion did not purport “to shut the courthouse
doors.” San Francisco Herring Ass’n, 946 F.3d
at 574 (citing Nguyen, 792 F.2d at 1503).
...
“Here, this Court does not take lightly its
responsibility under the rule of mandate.
Rather, it considers plaintiffs’ new factual
allegations under the Declaratory Judgment
Act, and amended request for relief in light
of intervening recent precedent, to be a new
issue that, while discussed, was not decided by
the Ninth Circuit in the interlocutory appeal.
Nor did the mandate expressly state that
plaintiffs could not amend to replead their
case—particularly where the opinion found a
13a
Appendix C
QDUURZGHÀFLHQF\ZLWKSODLQWLIIV·SOHDGLQJVRQ
redressability. This Court therefore does not
interpret the Ninth Circuit’s instructions as
mandating it “to shut the courthouse doors”
on plaintiffs’ case where they present newly
amended allegations. San Francisco Herring
Ass’n, 946 F.3d at 574.
ECF No. 540 at 10-11.
Defendants quickly moved to dismiss plaintiffs’ second
amended complaint, ECF No. 547, and this Court denied
defendants’ motion. Order on Mot. to Dismiss, ECF No.
565 (December 29, 2023). Defendant had again asserted
that the district court had violated the rule of mandate
and this Court again explained its due regard for the rule:
Because it is jurisdictional error to contravene
a rule of mandate, the Court duly reconsiders
the mandate of the Ninth Circuit and does not
take the matter lightly. “A district court that
has received the mandate of an appellate court
cannot vary or examine that mandate for any
purpose other than executing it.” Hall v. City
of Los Angeles, 697 F.3d 1059, 1067 (9th Cir.
2012). “Violation of the rule of mandate is a
jurisdictional error.” Id. at 1067.
“But while the mandate of an appellate court
forecloses the lower court from reconsidering
matters determined in the appellate court,
it leaves to the district court any issue not
14a
Appendix C
expressly or impliedly disposed of on appeal.”
S.F. Herring Ass’n v. Dep’t of the Interior, 946
F.3d 564, 574 (9th Cir. 2019) (quoting Nguyen
v. United States, 792 F.2d 1500, 1502 (9th
Cir. 1986)). In determining which matters fall
within the compass of a mandate, “[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.” Vizcaino v. U.S. Dist. Ct. for W.
Dist. of Wash., 173 F.3d 713, 719 (9th Cir. 1999)
(as amended) (quoting Delgrosso v. Spang & Co.,
903 F.2d 234, 240 (3d Cir. 1990)).
“Absent a mandate which explicitly directs
to the contrary, a district court upon remand
can permit the plaintiff to file additional
pleadings . . . ” S.F. Herring, 946 F.3d at 574
(quoting Nguyen, 792 F.2d at 1502); see also
Sierra Club v. Penfold, 857 F.2d 1307, 1312
(9th Cir. 1988). When the mandate in the
prior appeal does not expressly address the
possibility of amendment and does not indicate
a clear intent to deny amendment seeking to
raise new issues not decided, that mandate does
not purport “to shut the courthouse doors.” S.F.
Herring, 946 F.3d at 574.
In S.F. Herring, the Ninth Circuit discussed
its mandate in a prior appeal, which vacated
the district court’s order entering summary
judgment in the defendants’ favor and directed
15a
Appendix C
the district court to dismiss the complaint.
See S.F. Her r ing Ass’n v. U.S. Dep’t of
Interior, 683 F. App’x 579, 581 (9th Cir. 2017)
(vacating judgment and remanding case with
instructions to dismiss for lack of subject
matter jurisdiction). On remand, the district
court allowed the plaintiff to file a second
amended complaint.
In the later appeal, the Ninth Circuit determined
that the district court correctly found that the
earlier mandate to dismiss did not prevent
the plaintiff from seeking leave to re-plead.
S.F. Herring, 946 F.3d at 574. The appellate
court reasoned that in instructing the district
court to dismiss, the mandate was silent on
whether dismissal should be with or without
leave to amend, and the mandate therefore did
not preclude the district court from allowing
SODLQWLIIWRÀOHDPHQGHGSOHDGLQJVId. at 572574.
When this Court granted plaintiffs’ motion
for leave to amend, it “consider[ed] plaintiffs’
new factual allegations under the Declaratory
Judgment Act and plaintiffs’ amended request
for relief, in light of inter vening recent
precedent, to be a new issue that, while
discussed, was not decided by the Ninth Circuit
in the interlocutory appeal.” Juliana v. United
States, No. 6:15 -CV- 01517-A A, 2023 WL
3750334, at *5 (D. Or. June 1, 2023).
16a
Appendix C
The Court once again finds that the Ninth
Circuit’s mandate did not address whether
amendment, if permitted, would cure the
GHÀFLHQF\LWLGHQWLÀHGLQSODLQWLIIV·FRPSODLQW
The Ninth Circuit also did not instruct the Court
to dismiss without leave to amend. Accordingly,
its mandate to dismiss did not foreclose that
opportunity, and the Court, on reconsideration,
ÀQGV WKDW LQ SHUPLWWLQJ SODLQWLIIV WR SURFHHG
with their second amended complaint, the rule
of mandate is not contravened. S.F. Herring,
946 F.3d at 574; see also Creech v. Tewalt, 84
F.4th 777, 783 (9th Cir. 2023) (where appellate
court remanded and stated that plaintiff should
have leave to amend, district court did not
violate rule of mandate by dismissing without
leave to amend, because appellate court did not
expressly foreclose that option).
ECF No. 565 at 19-20.
2Q)HEUXDU\GHIHQGDQWVÀOHGQRWLFHZLWKWKH
district court of their petition for writ of mandamus in
the Ninth Circuit. Pet., ECF No. 585, 585-1. Defendants
contend that the Ninth Circuit should issue a writ of
mandamus to this Court, directing it to dismiss this case
for lack of jurisdiction and without leave to amend. The
Ninth Circuit invited the district court to address the
petition.
17a
Appendix C
LEGAL STANDARD
“The writ of mandamus is a drastic and extraordinary
remedy reserved for really extraordinary causes.”
In re Van Dusen, 654 F.3d 838, 840 (9th Cir. 2011)
(quoting Ex parte Fahey, 332 U.S. 258, 259–60 (1947))
(internal quotation marks omitted). “[O]nly exceptional
circumstances amounting to a judicial usurpation of power
or a clear abuse of discretion will justify the invocation of
this extraordinary remedy.” Cheney v. U.S. Dist. Ct., 542
U.S. 367 (2004) (internal quotation marks and citations
omitted).
In considering whether to grant a writ of mandamus,
DSSHOODWHFRXUWVDUHJXLGHGE\WKHÀYHIDFWRUVLGHQWLÀHG
in Bauman v. U.S. Dist. Ct., 557 F.2d 650 (9th Cir. 1977):
(1) whether the petitioner has no other means, such as
a direct appeal, to obtain the desired relief; (2) whether
the petitioner will be damaged or prejudiced in any
way not correctable on appeal; (3) whether the district
court’s order is clearly erroneous as a matter of law; (4)
whether the district court’s order is an oft repeated error
or manifests a persistent disregard of the federal rules;
and (5) whether the district court’s order raises new and
LPSRUWDQWSUREOHPVRULVVXHVRIÀUVWLPSUHVVLRQPerry
v. Schwarzenegger, 591 F.3d 1147, 1156 (9th Cir. 2010)
(citing Bauman, 557 F.2d at 654-55). “All factors are
not relevant in every case and the factors may point in
different directions in any one case.” Christensen v. U.S.
Dist. Ct., 844 F.2d 694, 697 (9th Cir. 1988).
18a
Appendix C
DISCUSSION
Defendants maintain that mandamus is warranted
because (1) the district court violated the Ninth Circuit’s
mandate which required dismissal and foreclosed
DPHQGPHQW WKH GLVWULFW FRXUW HUUHG LQ ÀQGLQJ WKDW
plaintiffs have Article III standing; and (3) the district
FRXUWHUUHGLQÀQGLQJWKDWSODLQWLIIVKDGVWDWHGSODXVLEOH
claims for relief under due process clause and public trust
doctrine.
I.
Standing & Merits
This Court has addressed the merits of the parties’
arguments on Article III standing and the viability of
plaintiffs’ due process and public trust claims, and as
before, “stands by its prior rulings on jurisdictional and
merits issues, as well as its belief that this case would
be best served by further factual development at trial.”
Juliana v. United States, No. 6:15-CV-01517-AA, 2018
WL 6303774, at *3 (D. Or. Nov. 21, 2018); see also ECF
No. 565 at 21-34 (discussing redressability for purposes
of Article III standing), id. at 35-36 (discussing the
political question doctrine and justiciability), id. at 3644 (discussing plaintiffs’ due process claim), id. at 46-48
(discussing plaintiffs’ public trust claim and incorporating
analysis from prior orders).
As in their motion to dismiss, defendants maintain that
the relief plaintiffs seek is “sweeping” and “unprecedented”
and that plaintiffs must make their demands to the
political branches. See Pet. For Writ of Mandamus (“Pet.”)
19a
Appendix C
at 1, Doc. 585-1. In any case over which trial courts have
jurisdiction, where the plaintiffs have stated a legal claim,
it is the proper and peculiar province of the courts to
LPSDUWLDOO\ÀQGIDFWVIDLWKIXOO\LQWHUSUHWDQGDSSO\WKH
law, and render reasoned judgment. See The Federalist
No. 78 (Alexander Hamilton).
As this Court stated in its 2023 Order denying
defendants’ motion to dismiss, “[t]he judiciary is capable
and duty-bound to provide redress for the irreparable
harm government fossil fuel promotion has caused.”
ECF No. 565 at 6. This Court draws from that 49-page
Order to answer why the remedies plaintiffs seek are not
“sweeping” or “unprecedented.” In its Order, this Court
explained why plaintiffs’ proposed remedy is one typical
for a district court to fashion and over which it can provide
jurisdictional oversight while the parties implement the
plans, practices, and policies they together devise. Id.
at 31-34. As to the merits of plaintiffs constitutional and
public trust doctrine claims, the assignments of errors
defendants raise in their petition are better suited to an
appeal in the regular course.
II. Propriety of Writ of Mandamus
This Court maintains, as do plaintiffs and amici,
that the issues defendants raise on mandamus are better
addressed through the ordinary course of litigation.
7KHÀUVWBauman factor is whether the petitioner will
“ha[ve] no other means . . . to obtain the desired relief.”
Perry, 591 F.3d at 1156. This factor ensures that a writ
20a
Appendix C
of mandamus will not “be used as a substitute for appeal
even though hardship may result from delay and perhaps
unnecessary trial.” Schlagenhauf v. Holder, 379 U.S. 104,
110 (1964) (internal citation omitted).
Defendants argue that a writ of mandamus is the
only means to ensure that the district court complies with
the Ninth Circuit’s 2020 decision holding that plaintiffs’
claims are beyond the judicial power to redress. Pet. at
29. That said, the Court has explained that its Orders duly
regarded and complied with the Ninth Circuit’s decision
and found plaintiffs’ amended complaint demonstrated
redress was within the district court’s constitutional
authority. ECF No. 540 at 14-18; ECF No. 565 at 28-34.
Further, challenges to standing “may be raised by a
party, or by a court on its own initiative, at any stage in
the litigation, even after trial and the entry of judgment.”
Wood v. City of San Diego, 678 F.3d 1075, 1082 (9th Cir.
2012) (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 506
(2006)). Therefore, defendants’ argument that it has no
other means to raise a challenge based on redressability—
an element of standing—does not succeed.
The second Bauman factor is whether the petitioner
“will be damaged or prejudiced in any way not correctable
on appeal.” Perry, 591 F.3d at 1156. To satisfy this factor,
the defendants “must demonstrate some burden . . . other
than the mere cost and delay that are the regrettable,
yet normal, features of our imperfect legal system.”
DeGeorge v. U.S. Dist. Ct., 219 F.3d 930, 935 (9th Cir. 2000)
(alteration in original) (quoting Calderon v. U.S. Dist.
Ct., 163 F.3d 530, 535 (9th Cir. 1998) (en banc)). Prejudice
21a
Appendix C
serious enough to warrant mandamus relief “includes
situations in which one’s ‘claim will obviously be moot by
the time an appeal is possible,’ or in which one ‘will not
have the ability to appeal.’” Id. (quoting Calderon, 163
F.3d at 535).
Defendants argue that holding a trial on the plaintiffs’
FODLPVWKUHDWHQVWKHVHSDUDWLRQRISRZHUVDQGÁRXWVWKH
Ninth Circuit’s mandate. To the extent that defendants
DUHDVVHUWLQJWKDWH[HFXWLYHEUDQFKRIÀFLDOVDQGDJHQFLHV
in general should not be burdened by an unmeritorious
lawsuit, “Congress has not exempted the government from
the normal rules of appellate procedure, which anticipate
that sometimes defendants will incur burdens of litigating
cases that lack merit but still must wait for the normal
appeals process to contest rulings against them.” In re
United States, 884 F.3d 830, 836 (9th Cir. 2018).
´7KH ÀUVW WZR FULWHULD DUWLFXODWHG LQ Bauman are
designed to [ensure] that mandamus, rather than some
other form of relief, is the appropriate remedy.” In
re Cement Antitrust Litig. (MDL No. 296), 688 F.2d
1297, 1301 (9th Cir. 1982), aff’d sub nom. Arizona v.
U.S. Dist. Ct., 459 U.S. 1191 (1983) (mem.). This Court’s
determination that the mandate did not foreclose dismissal
is a legal conclusion, along with the district court’s
determinations on the plausibility of plaintiffs’ claims
under Federal Rules of Civil Procedure 12(b)(1) and (6),
and those determinations, if in error, are correctable
through the ordinary course of litigation. In this Court’s
YLHZGHIHQGDQWVKDYHQRWVDWLVÀHGWKHVHFRQGBauman
factor.
22a
Appendix C
The third Bauman factor is whether the district
court’s order “is clearly erroneous as a matter of law.”
Perry, 591 F.3d at 1156. Appellate review of that factor
´LVVLJQLÀFDQWO\GHIHUHQWLDODQGLVQRWPHWXQOHVVWKH
UHYLHZLQJFRXUWLVOHIWZLWKDGHÀQLWHDQGÀUPFRQYLFWLRQ
that a mistake has been committed.” In re Bundy, 840 F.3d
1034, 1041 (9th Cir. 2016) (quoting In re United States, 791
F.3d 945, 955 (9th Cir. 2015)). “The absence of controlling
SUHFHGHQWZHLJKVVWURQJO\DJDLQVWDÀQGLQJRIFOHDUHUURU
[for mandamus purposes].” In re Van Dusen, 654 F.3d 838,
845 (9th Cir. 2011).
Here, this Court provided authority from the Ninth
Circuit in support of its determination that it had not
violated the rule of mandate. See ECF No. 540 at 10-11,
ECF No. 565 19-20. The Court also thoroughly analyzed
plaintiffs’ claims on the merits, as described above (p.
9). Defendants do not put forth any other controlling
Ninth Circuit authority on any of the theories asserted
by plaintiffs. Defendants argue that the theories are
unprecedented. Thus, the lack of controlling precedent
KHUHZHLJKVVWURQJO\DJDLQVWDÀQGLQJRIFOHDUHUURUId.
The fourth Bauman factor is whether the district
court’s order is “an oft repeated error or manifests a
persistent disregard of the federal rules.” Perry, 591 F.3d
DW7KLV&RXUWÀQGVQRRIWUHSHDWHGHUURUKHUHDQG
defendants do not contend that the district court violated
any federal rule. The defendants do not satisfy the fourth
factor.
7KHÀQDOIDFWRULVZKHWKHUWKHGLVWULFWFRXUW·VRUGHU
´UDLVHV QHZ DQG LPSRUWDQW SUREOHPV RU LVVXHV RI ÀUVW
23a
Appendix C
impression.” Perry, 591 F.3d at 1156. The Ninth Circuit
has relied on this factor when there is a “novel and
important question” that “may repeatedly evade review.”
Id. at 1159; see also In re Cement Antitrust Litig., 688 F.2d
DW² ´>$@QLPSRUWDQWTXHVWLRQRIÀUVWLPSUHVVLRQ
will evade review unless it is considered under our
supervisory mandamus authority. Moreover, that question
may continue to evade review in other cases as well.”).
As this Court has found, the legal theories asserted
UDLVHLVVXHVRIÀUVWLPSUHVVLRQ³LHH[LVWHQFHRIIHGHUDO
public trust doctrine and whether the right to a climate
that can sustain human life is fundamental under the
Constitution. The merits of those claims are suitable for
DSSHDODIWHUÀQDOMXGJPHQW:KHWKHUDGLVWULFWFRXUWPD\
grant leave to amend a complaint after a reviewing court
RUGHUV GLVPLVVDO LV QRW D PDWWHU RI ÀUVW LPSUHVVLRQ DV
discussed in this Court’s prior orders. See ECF No. 540 at
9-11; ECF No. 565 at 18-21. Accordingly, this Court’s order
granting amendment and denying a motion to dismiss on
the pleadings does not present the possibility that those
issues will evade appellate review. In this Court’s view,
GHIHQGDQWV KDYH QRW VDWLVÀHG WKH ÀIWK Bauman factor.
Under the test, a writ of mandamus is not necessary.
III. Staying Litigation
Defendants also ask the Ninth Circuit to stay litigation
while deciding their petition for writ of mandamus.
Defendants have moved to stay litigation several times
DQG KDYH ÀOHG PXOWLSOH SHWLWLRQV IRU ZULW RI PDQGDPXV
ECF Nos. 177, 308, 365, 390, 420, 585. In this iteration,
24a
Appendix C
defendants maintain that the case must be stayed because
there is a substantial likelihood that the Ninth Circuit will
grant their petition. Pet. at 5-6. Defendants have not met
their burden to show the petition for writ of mandamus is
warranted or likely to be granted. The Court has analyzed
WKHDSSURSULDWHIDFWRUVDQGÀQGVWKDWDVWD\VKRXOGQRW
be granted.
CONCLUSION
This Court has great regard for the judicial process.
It has deliberately considered all motions the parties
brought, and its decisions are accessible for appellate
scrutiny in the due course of litigation. Trial courts across
the country address complex cases involving similar
jurisdictional, evidentiary, and legal questions as those
presented here without resorting to interlocutory appeal
or petitioning for a writ of mandamus. As Justice Stewart
noted, “the proper place for the trial is in the trial court,
not here.” Baker v. Carr, 369 U.S. 186, 266 (1962) (Stewart,
J., concurring.) Defendants therefore have other means,
such as a direct appeal, to obtain the desired relief. This
Court recommends denying defendants’ petition for writ
of mandamus.
SUPPLEMENTAL ORDER DATED this 19th day of
April 2024.
/s/ Ann Aiken
Ann Aiken
United States District Judge
25a
Appendix DD
APPENDIX
2023 WL 9023339
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF OREGON, EUGENE DIVISION
------------------Civ. No. 6:15-cv-01517-AA
KELSEY CASCADIA ROSE JULIANA, et al.,
Plaintiffs,
v.
THE UNITED STATES OF AMERICA, et al.,
Defendants.
------------------Signed:
December 29, 2023
-------------------
OPINION AND ORDER
------------------AIKEN, District Judge:
In 2015, twenty-one plaintiffs—a group of young
people, including “future generations”—brought this
civil rights action against the federal government,
alleging injury from the devastation of climate change
26a
Appendix D
and contending that the Constitution guarantees the
right to a stable climate system that can sustain human
life. Through the years of litigating this case, plaintiffs
maintain that their government, by subsidizing fossil fuel
extraction and consumption, is responsible for destroying
the climate system on which all life, liberty, and property
depends, violating plaintiffs’ fundamental rights under the
Due Process Clause of the Constitution and the historical
public trust doctrine. On June 1, 2023, the Court granted
SODLQWLIIV·PRWLRQWRÀOHDVHFRQGDPHQGHGFRPSODLQW
Now before the Court is defendants’ motion to dismiss
the second amended complaint. ECF No. 547. For the
reasons explained, the Court DENIES defendants’
motion to dismiss, ECF No. 547; DENIES defendants’
motion for an order certifying its prior order, ECF No.
540, for interlocutory appeal, ECF No. 551; and DENIES
defendants’ motion to stay litigation, ECF No. 552.
The Court GRANTS plaintiffs’ motion to set a pretrial
conference, ECF No. 543.
INTRODUCTION
The parties do not disagree that the climate crisis
threatens our ability to survive on planet Earth. This
catastrophe is the great emergency of our time and
compels urgent action.1 As this lawsuit demonstrates,
1. See David Wallace-Wells, The Uninhabitable Earth: Life
After Warming (2019); Andrew Freedman & Jason Samenow,
Humidity and Heat Extremes Are on the Verge of Exceeding
Limits of Human Survivability, Study Finds, Washington Post
(May 8, 2020) (reporting study warning that highly populated
27a
Appendix D
young people—too young to vote and effect change
through the political process—are exercising the
institutional procedure available to plead with their
government to change course. While facts remain to be
proved, lawsuits like this highlight young people’s despair
with the drawn-out pace of the unhurried, inchmeal,
bureaucratic response to our most dire emergency. Top
HOHFWHGRIÀFLDOVKDYHGHFODUHGWKDWWKHFOLPDWHHPHUJHQF\
spells out “code red for humanity.” 2 Burning fossil fuels
changes the climate more than any other human activity. 3
The government does not deny that it has promoted
fossil fuel combustion through subsidies; tax exemptions;
permits for fossil fuel development projects; leases on
federal lands and offshore areas; permits for imports and
exports; and permits for energy facilities.4 Despite many
regions of the world will be rendered uninhabitable sooner than
previously thought for parts of the year); Nafeez Ahmed, New
Report Suggests ‘High Likelihood of Human Civilization Coming
to an End’ Starting in 2050, VICE (June 3, 2019).
2. President Joseph Biden, Remarks on “Actions to Tackle
the Climate Crisis” at Brayton Point Power Station, Somerset,
Massachusetts (July 20, 2022), https://www.whitehouse.gov/
brief ing-room /speeches-remarks/2022 /07/20/remarks-bypresident-biden-on-actions-to-tackle-the-climate-crisis/ [https://
perma.cc/LU2U-CTFM].
3. Environmental Protection Agency, Sec. Environmental
Topics, Climate Change, Causes of Climate Change, (last updated
April 25, 2023), https://www.epa.gov/climatechange-science/
causes-climate-change [https://perma.cc/UGU4-B6EF].
4. Juliana v. United States, 947 F.3d 1159, 1167 (9th Cir.
´7KH JRYHUQPHQW DIÀUPDWLYHO\ SURPRWHV IRVVLO IXHO XVH
LQDKRVWRIZD\VLQFOXGLQJEHQHÀFLDOWD[SURYLVLRQVSHUPLWVIRU
imports and exports, subsidies for domestic and overseas projects,
28a
Appendix D
climate change suits around the country, in 2023, the
United States witnessed record-breaking levels of oil and
gas production. 5 And recent calculations conservatively
estimate that the United States provides the oil and
gas industry $20,000,000,000.00 annually in an array of
subsidies.6
Defendants maintain that, because tackling the climate
crisis is complex, and no single remedy may entirely
redress plaintiffs’ harms caused by climate change, the
judiciary is constrained by the Constitution from offering
any redress at all. See defs.’ mot. to dismiss (“Mot.”) at
11-13. Defendants contend that the issue of climate change
is political in its nature, and that redress of plaintiffs’
alleged injuries must be sought from Congress. Id. at 28.
That unnecessarily narrow view overlooks one clear and
constitutional path to shielding future generations from
and leases for fuel extraction on federal land.”).
5. Energy Poverty Prevention and Accountability Act
of 2023: Hearing on H.R.6474 and H.R.6481 before the H. Nat.
Resources Subcomm. on Energy and Min. Resources, 118th
Cong. (statement of J. Mijin Cha, Assistant Professor, Univ. of
Cal.) (citing Oliver Milman, “US Oil and Gas Production Set to
Break Record in 2023 despite UN Climate Goals,” The Guardian,
November 27, 2023, sec. Environment, https://www.theguardian.
com/environment/2023/nov/27/us-oil-gas-record-fossil-fuelscop28-united-nations [https://perma.cc/VJ4C-KZGH]).
6. Id. (Statement of J. Mijin Cha) (citing Environmental
and Energy Study Institute, Fact Sheet, “Proposals to Reduce
Fossil Fuel Subsidies (2021),” (July 23, 2021)) https://www.eesi.
org/papers/view/fact-sheet-proposals-to-reduce-fossil-fuelsubsidies-2021 [https://perma.cc/SD8B-7P6B].
29a
Appendix D
impacts of the onslaught of environmental disaster: that
it is the responsibility of the judiciary to declare the law
that the government may not deprive the People of their
Constitutional guarantee of the God-given right to life.
U.S. Const. art III; U.S. Const. amend. V; Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 170 (1803).
Plaintiffs’ allegations are that collective resolve at
every level and in every branch of government is critical
to reducing fossil fuel emissions and vital to combating
climate change. That curbing climate change requires
an all-hands-on-deck approach does not oust the Court
from its province or discharge it of its duty under the
Constitution to say what the law is. Marbury 5 U.S. at
170.7 Combatting climate change may require all to act in
accord, but that does not mean that the courts must “throw
up [our] hands” in defeat. See Juliana v. United States,
947 F.3d 1159, 1175 (9th Cir. 2020) (Staton, J., dissenting).
The legislative and executive branches of government
wield constitutional powers entrusted to those branches
by the People through the democratic process. See U.S.
Const. art. I and art. II. So too, as part of a coequal branch
of government, the Court cannot shrink from its role to
decide on the rights of the individuals duly presenting
their case and controversy. Marbury, 5 U.S. at 170. Indeed,
7. See also Edith M. Lederer, UN Chief: World Must Prevent
Runaway Climate Change by 2020, Associated Press News (Sept.
10, 2018) (describing massive decarbonization effort necessary to
DYRLGFOLPDWH´WLSSLQJSRLQWVµ KWWSV DSQHZVFRPDUWLFOHÁRRGV
united-nations-antonio-guterres-us-news-climate-71ab1abf44c14
605bf2dda29d6b5ebcc [https://perma.cc/84E6-D24C].
30a
Appendix D
courts at home and abroad are capably grappling with
climate change lawsuits seeking redress against both
government and private actors on a range of legal theories,
many novel. 8 In Montana, Judge Kathy Seeley presided
RYHUWKHÀUVWFOLPDWHFKDQJHWULDOLQWKH8QLWHG6WDWHV
SLHUFLQJWKURXJKH[SHUWWHVWLPRQ\DQGVFLHQWLÀFHYLGHQFH
WRSURYLGHIDFWXDOÀQGLQJVDQGFRQFOXVLRQVRIODZUXOLQJ
that the state’s failure to consider climate change when
approving fossil fuel projects was unconstitutional. See
Held v. Montana, Findings of Fact, Conclusions of Law,
and Order, Civil Action CDV-2020-307 (Mont. First Jud.
D. Ct. Lewis and Clark County, Aug. 14, 2023).
The judiciary is capable and duty-bound to provide
redress for the irreparable harm government fossil fuel
promotion has caused. Legal scholar and professor Mary
Christina Wood contends that the all-encompassing
breadth of ongoing “irreparable harm” sets the climate
emergency apart from any other crisis, in terms of the
human interests at stake.9 As Professor Wood eloquently
states: “Because no crisis is as ominous, imminent, and
far reaching, the climate emergency must be considered
8. The Sabin Center for Climate Change Law of Columbia
University has assembled for public access the “Climate Change
Litigation Database” containing summaries and court dockets for
climate change lawsuits brought in the United States and abroad.
Climate Change Litigation Databases, Colum. L. Sch.: Sabin Ctr.
For Climate Change L., https://climatecasechart.com/ [https://
perma.cc/B89Z-YN4M].
9. Mary C. Wood, “On the Eve of Destruction”: Courts
Confronting the Climate Emergency, 97 Ind. L.J. 239, 249 (2022)
(hereinafter “Wood, Eve of Destruction”).
31a
Appendix D
sui generis,” that is, “in a class of its own.”10 The legal
approach must “rise to the emergency rather than
repeat a failed past paradigm.” 11 In the context of
Australian youth’s challenge to government approval of
a coal mine, Justice Bromberg wrote that failure to curb
climate change is “what might fairly be described as the
JUHDWHVWLQWHUJHQHUDWLRQDOLQMXVWLFHHYHULQÁLFWHGE\RQH
generation of humans upon the next.”12
10. Id.
11. Id.
12. Sharma v. Minister for the Env’t [2021] FCA 560 1, 90 (27
May 2021) (Austl.). The court stated:
´,WLVGLIÀFXOWWRFKDUDFWHULVHLQDVLQJOHSKUDVHWKH
devastation that the plausible evidence presented
in this proceeding forecasts for the Children. As
Australian adults know their country, Australia will
be lost and the World as we know it gone as well.
The physical environment will be harsher, far more
extreme and devastatingly brutal when angry. As for
the human experience—quality of life, opportunities
to partake in nature’s treasures, the capacity to grow
and prosper—all will be greatly diminished. Lives
will be cut short. Trauma will be far more common
and good health harder to hold and maintain. None of
this will be the fault of nature itself. It will largely be
LQÁLFWHGE\WKHLQDFWLRQRIWKLVJHQHUDWLRQRIDGXOWVLQ
what might fairly be described as the greatest interJHQHUDWLRQDOLQMXVWLFHHYHULQÁLFWHGE\RQHJHQHUDWLRQ
of humans upon the next.”
Id.
32a
Appendix D
Some may balk at the Court’s approach as errant or
unmeasured,13 but more likely than not, future generations
may look back to this hour and say that the judiciary
failed to measure up at all. In any case over which trial
courts have jurisdiction, where the plaintiffs have stated
a legal claim, it is the proper and peculiar province of the
FRXUWVWRLPSDUWLDOO\ÀQGIDFWVIDLWKIXOO\LQWHUSUHWDQG
apply the law, and render reasoned judgment.14 Such is
the case here.
BACKGROUND
I.
Plaintiffs’ Lawsuit
In 2015, plaintiffs filed this civil rights lawsuit
that journalists later coined “The Biggest Case on
the Planet.”15 At the start of this case, the twenty-one
13. Juliana v. United States, 947 F.3d 1159, 1174 (9th Cir.
2020) (“Not every problem posing a threat—even a clear and
present danger—to the American Experiment can be solved by
federal judges. As Judge Cardozo once aptly warned, a judicial
commission does not confer the power of ‘a knight errant, roaming
at will in pursuit of his own ideal of beauty or of goodness’; rather,
we are bound ‘to exercise a discretion informed by tradition,
methodized by analogy, disciplined by system.’ ”) (quoting
Benjamin N. Cardozo, The Nature of the Judicial Process 141
(1921)).
14. See The Federalist No. 78 (Alexander Hamilton).
15. Laura Parker, “Biggest Case on the Planet” Pits Kids
v. Climate Change, Nat’l Geographic (Nov. 9, 2018), https://www.
nationalgeographic.com/science/article/kids-sue-us-governmentclimate-change [https://perma.cc/2J7J-74C2].
33a
Appendix D
plaintiffs were between the ages of eight and nineteen.
They brought suit along with “future generations”
through their guardian, Dr. James Hansen. Plaintiffs
named as defendants all federal agencies that plaintiffs
alleged were responsible for the U.S. energy policy,
including the Department of Agriculture, Department
of Transportation, Environmental Protection Agency,
Department of Interior, the State Department, Council
on Environmental Quality, Department of Defense, and
Department of Commerce. Compl., ECF No. 1; First Am.
Compl. (“FAC”), ECF No. 7.
Plaintiffs compiled an abundance of factual evidence
to support their claim that the government has known
about the dangers posed by fossil fuel production, and,
despite that knowledge, chose to promote production
and consumption of coal, oil, and gas at increasing levels
over decades. The record is extensive. The evidence, as
the Ninth Circuit stated, “leaves little basis for denying
that climate change is occurring at an increasingly rapid
pace ... and stems from fossil fuel combustion.” Juliana,
947 F.3d at 1166.
From the beginning, plaintiffs alleged that, as
early as the year 1899, scientists understood that CO2
concentration in the atmosphere caused heat retention,
global heating, and climate change. FAC ¶ 131. Plaintiffs
VWDWHG WKDW IRU RYHU ÀIW\ \HDUV WKH 8QLWHG 6WDWHV RI
America has known that CO2 pollution from burning
fossil fuels was causing global warming and dangerous
climate change, and that continuing to burn fossil fuels
would destabilize the climate system on which present and
34a
Appendix D
future generations of our nation depend for survival. Id.
¶¶ 132-35. Recounting over a dozen signpost junctures,
plaintiffs provide letters, memoranda, and reports to the
SROLWLFDOEUDQFKHVIURPVFLHQWLÀFH[SHUWVDQGJRYHUQPHQW
agencies cautioning about the danger of carbon pollution
and warning that a lack of action would be felt for decades.
Id. ¶¶ 136-50.
Defendants moved to dismiss the complaint under
Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) for
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 Court denied that motion in
November 2016. See Nov. 10, 2016 Op. & Order, ECF No.
83. Defendants also moved for judgment on the pleadings
and summary judgment. ECF Nos. 195, 207. For the most
part, the Court denied those motions.
When the Court denied defendants’ motions to certify
its dispositive orders for interlocutory appeal, defendants
petitioned the Supreme Court for a writ of mandamus,
ECF No. 390-1, and to stay proceedings, ECF No. 391-1,
both which were denied. Defendants asked the district
court to reconsider certifying its orders for interlocutory
appeal, and, that time, the Ninth Circuit invited the
district court to do so. See Nov. 21, 2018 Order, ECF Nos.
444, 445. Defendants then sought permission to appeal,
which the Ninth Circuit granted. Filed Ord., Juliana v.
United States, No. 18-36082 (9th Cir. Dec. 26, 2018).
On January 17, 2020, a divided panel of the Ninth
Circuit issued a decision reversing the district court’s
35a
Appendix D
FHUWLÀHGRUGHUVDQGUHPDQGLQJWKHFDVHZLWKLQVWUXFWLRQV
to dismiss for lack of Article III standing. Juliana, 947
F.3d at 1175. Writing for the majority, Judge Hurwitz,
joined by Judge Murguia, began with the basics: “To
have standing under Article III, a plaintiff must have (1)
a concrete and particularized injury that (2) is caused by
... challenged conduct and (3) is likely redressable by a
favorable judicial decision.” Id. at 1168.
Agreeing with the district court, Judge Hurwitz
found that “[a]t least some plaintiffs” had claimed
“particularized injuries,” since climate change threatened
to harm certain plaintiffs in “concrete and personal” ways
if left unchecked. Id. The appellate court described the
dire circumstances faced by one plaintiff who had had
to evacuate his coastal home because of climate change.
Id. And some plaintiffs had also established causation
because there was “at least a genuine factual dispute
as to whether” U.S. climate policy was a “substantial
factor” in exacerbating plaintiffs’ climate change-related
injuries. Id. at 1169. Thus, plaintiffs’ standing turned on
redressability: “whether the plaintiffs’ claimed injuries
[were] redressable by an Article III court.” Id.
Plaintiffs claimed defendants had violated their
constitutional right to a climate system capable of
sustaining life, and to redress that violation, sought
injunctive relief, including an order directing defendants
to “prepare and implement an enforceable national
remedial plan to phase out fossil fuel emissions and draw
down excess atmospheric CO2 to stabilize the climate
system.” FAC at 94 ¶¶ 2, 6, 7.
36a
Appendix D
“Reluctantly,” the panel found such relief “beyond [the
district court’s] constitutional power.” Juliana, 947 F.3d
at 1165. To establish redressability, the appellate court
H[SODLQHGSODLQWLIIVPXVWKDYHLGHQWLÀHGUHOLHIWKDWZDV
both “(1) substantially likely to redress their injuries” and
“(2) within the district court’s power to award.” Id. at 1170.
2Q WKH ÀUVW SURQJ WKH SDQHO IRXQG WKDW SODLQWLIIV· RZQ
experts had stated that only a comprehensive, governmentled plan to reduce U.S. greenhouse gas emissions could
mitigate “the global consequences of climate change” and
thereby bring plaintiffs’ total redress. Id. Turning to the
second prong, the panel found that supervising such a
plan “would necessarily require” judges to make “a host
of complex policy decisions.” Id. at 1171.
Plaintiffs told the appellate court that even partial
UHOLHI ZRXOG VXIÀFH WR UHGUHVV WKHLU LQMXULHV DQG WKDW
the district court “need not itself make policy decisions,”
because if plaintiffs’ request for a remedial plan were
granted, the political branches “could decide what policies”
would be best to “draw down excess atmospheric CO2 .”
Id. at 1172. But the panel determined that, “even under
such a scenario,” the district court would need to pass
MXGJPHQWRQWKHVXIÀFLHQF\RIWKHJRYHUQPHQW·VUHVSRQVH
to the order. In the Ninth Circuit’s view, a district court
FRXOGQRWHQJDJHLQSDVVLQJMXGJPHQWRQWKHVXIÀFLHQF\
of the government’s response to a court order, because it
“necessarily would entail a broad range of policymaking.”
Id.
The panel continued: “[A] constitutional directive
or legal standard[ ] must guide the court’s exercise of
37a
Appendix D
equitable power,” and, on the other hand, “limited and
precise” legal rules simply could not resolve the range
of policy-related questions plaintiffs’ claims raised. Id.
at 1173. The appellate court determined that no remedy
VXEMHFW WR OLPLWHG DQG SUHFLVH GHÀQLWLRQ FRXOG UHGUHVV
plaintiffs’ injuries and therefore issuing such relief was
not within the district court’s power. Id.
Judge Josephine L. Staton dissented. “Plaintiffs bring
suit,” she lamented, “to enforce the most basic structural
principle embedded in our system of ordered liberty: that
the Constitution does not condone the Nation’s willful
destruction.” Id. at 1175. In Judge Staton’s view, the
district court had the power to award plaintiffs’ relief
unless plaintiffs’ claims ran afoul of the political question
doctrine. See id. at 1184-85. Since plaintiffs’ claims did not
pose political questions, she continued, they should have
proceeded. Id. at 1185-86. “[O]ur history is no stranger
to widespread, programmatic changes ... ushered in by
the judiciary[ ],” Judge Staton concluded, and the “slow
churn” of institutional-reform litigation “should not
dissuade us here.” Id. at 1188-89. At end of the day, the
narrower understanding prevailed: that Article III courts
cannot order injunctive relief unless constrained by more
“limited and precise” legal standards, discernable in the
Constitution, and that plaintiffs must make their case
to the political branches. Id. at 1175. The Ninth Circuit
´UHYHUVH>G@WKHFHUWLÀHGRUGHUVRIWKHGLVWULFWFRXUWDQG
remand[ed]” the case “with instructions to dismiss for
lack of Article III standing.” Id.
Plaintiffs moved to file an amended complaint,
removing from their prayer for relief the injunction that
38a
Appendix D
the Ninth Circuit had found objectionable. ECF No.
462. The Court granted it because (1) the Ninth Circuit
did not foreclose the possibility of amendment when it
PDQGDWHGGLVPLVVDO SODLQWLIIVKDGQRWLÀHGWKH&RXUWRI
a Supreme Court case providing a new and more expansive
interpretation of declaratory judgments; and (3) plaintiffs’
proposed complaint narrowed the scope of the injunctive
relief it had initially requested. See Juliana v. United
States, No. 6:15-CV-01517-AA, 2023 WL 3750334 (D. Or.
June 1, 2023).
II. Plaintiffs File a Second Amended Complaint
In plaintiffs’ second amended complaint, they
maintain earlier factual allegations, contending that
defendants implemented no recommendation provided to
WKHPYLDVFLHQWLÀFUHSRUWVZDUQLQJRIFDWDVWURSKLFFOLPDWH
change. Second Am. Compl. (“SAC”) ¶ 153. Plaintiffs
contend that, if defendants had not disregarded the
evidence, “CO2 emissions today would be reduced by 35%
from 1987 levels.” Id. Instead, since 1991, plaintiffs state
that defendants have allowed CO2 emissions from fossil
fuel combustion to increase. Id. Plaintiffs provide tables
setting forth data from government sources showing that
fossil fuel production, fossil fuel energy consumption,
and fossil fuel emissions have climbed substantially since
1965, and that by 2011, fossil fuel combustion in the U.S.
accounted for 94% of CO2 emissions. Id. ¶¶ 155-58. By
2012, data plaintiffs provide shows that the U.S. was the
largest producer of natural gas, and the second largest
producer of coal and energy production. Id. ¶ 160. By
2014, according to the United States Energy Information
39a
Appendix D
Administration, the U.S. had become the largest producer
of total petroleum in the world. Id. ¶ 161.
Plaintiffs assert that defendants knew the harmful
HIIHFWRIWKHLUDFWLRQVZRXOGVLJQLÀFDQWO\HQGDQJHUPDQ\
like plaintiffs, with damage persisting for millennia.
Id. ¶¶ 1, 161. Despite that knowledge, plaintiffs allege
defendants continued their policies and practices of
promoting the exploitation of fossil fuels and that
defendants acted with deliberate indifference to the peril
they knowingly created. Id.
Plaintiffs’ inventory cataloguing the regulatory
permits, export permits, and approvals for leasing,
drilling, and mining on public lands is substantial. The
accounting of exploitation for fossil fuel extraction, coal
tracts, and oil and gas leases is staggering. Id. ¶¶ 1643ODLQWLIIVFRPSUHKHQVLYHO\LQYHQWRU\WKHDIÀUPDWLYH
governmental promotion of fossil fuel combustion over
decades. Id. ¶¶ 171-78.
Plaintiffs also include allegations drawing from
VFLHQWLÀFHYLGHQFHGRFXPHQWLQJWKHWDQJLEOHLPSDFWVRI
climate change. Evidence describes rising sea levels,
VHYHUHGURXJKWVKXUULFDQHVZLOGÀUHVH[WUHPHKHDWÁDVK
ÁRRGLQJ XQSUHFHGHQWHG RFHDQ DFLGLÀFDWLRQ DQG UDSLG
depletion of sea ice. Id. ¶¶ 213-41. Such events alter our
air quality, water availability, water quality, crop yields,
animal agriculture, and housing security. Id. Plaintiffs’
allegations about what the future holds if climate change
is unabated are harrowing. Id. ¶¶ 242-55.
40a
Appendix D
As the legal basis for their claims, plaintiffs maintain
that defendants have violated the Due Process Clause and
Equal Protection Clause of the Fifth Amendment; the
“unenumerated rights preserved for the people by the
Ninth Amendment”; and the public trust doctrine. FAC
at 84, 88, 91, 92; SAC at 133, 137, 140, 141 (bringing same
claims for relief).
Plaintiffs seek declaratory relief under the Declaratory
Judgment Act, 28 U.S.C. § 2201. SAC ¶ 14. Requested
relief includes a declaration that the United States national
energy system that creates the harmful conditions
described above has violated and continues to violate the
Fifth Amendment of the U.S. Constitution and plaintiffs’
constitutional rights to substantive due process and equal
protection of the law. Id. at 143 ¶ 1. Further, plaintiffs seek
a declaration that defendants violated public trust rights
and a declaration that the Energy Policy Act, Section 201
is unconstitutional. Id. at 143 ¶¶ 2-3.16 Plaintiffs request
injunctive relief only if necessary and “as appropriate.”
Id. at 143 ¶ 4.
III. The Government Files a Motion to Dismiss
Defendants move to dismiss under Federal Rule
of Civil Procedure 12(b)(1) and 12(b)(6), asserting that
plaintiffs lack standing; that plaintiffs cannot bring claims
16. As noted earlier, plaintiffs had initially sought injunctive
relief, including an order directing defendants to “prepare and
implement an enforceable national remedial plan to phase out
fossil fuel emissions and draw down excess atmospheric CO2 to
stabilize the climate system.” FAC at 94 ¶¶ 2, 6, 7.
41a
Appendix D
in the absence of a statutory right of action; that plaintiffs
ask the Court to exercise authority that exceeds the scope
of its power under Article III of the Constitution; and that
all of plaintiffs’ claims fail on the merits. Defendants also
assert that, if the Court denies their motion, it should
again certify its decision for interlocutory appeal.
LEGAL STANDARDS
I.
Motion to Dismiss – Federal Rule of Civil Procedure
12(b)(1)
A court reviews a motion to dismiss a complaint for
lack of Article III standing under Rule 12(b)(1). Naruto
v. Slater, 888 F.3d 418, 425 n.7 (9th Cir. 2018) (quoting
Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011)).
If the jurisdictional attack is facial, courts determine
whether the allegations contained in the complaint are
VXIÀFLHQW RQ WKHLU IDFH WR LQYRNH IHGHUDO MXULVGLFWLRQ
accepting all material allegations in the complaint as
true and construing them in favor of the party asserting
jurisdiction. See Warth v. Seldin, 422 U.S. 490, 501 (1975).
Once a party has moved to dismiss for lack of subject
matter jurisdiction under Rule 12(b)(1), the party invoking
federal jurisdiction bears the burden of establishing the
elements of standing. Lujan v. Defs. of Wildlife, 504 U.S.
555, 561 (1992). “[A] party must establish an Article III
case or controversy before [a court can] exert subject
matter jurisdiction.” Matter of E. Coast Foods, Inc., 66
F.4th 1214, 1218 (9th Cir. 2023). To satisfy the “irreducible
constitutional minimum” of Article III standing, a plaintiff
must establish (1) an injury in fact (2) that is fairly
42a
Appendix D
traceable to the challenged conduct and show that a court
can provide (3) a remedy likely to redress that injury.
Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).
II. Motion to Dismiss – Federal Rule of Civil Procedure
12(b)(6)
To survive a motion to dismiss, a complaint must
FRQWDLQ VXIÀFLHQW IDFWXDO PDWWHU DFFHSWHG DV WUXH WR
state a “claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570
(2007). A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged. Id. at 556. The plausibility standard
is not akin to a “probability requirement,” but it asks for
more than a sheer possibility that a defendant has acted
unlawfully. Id. The tenet that a court must accept as true
all allegations contained in a complaint is inapplicable
to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
VXIÀFHId. (citing Twombly, 550 U.S. at 555). “Where the
well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint
has alleged—but it has not show[n]—that the pleader is
entitled to relief.” Iqbal, 556 U.S. at 679 (quoting Fed. R.
Civ. P. 8(a)(2)).
DISCUSSION
Over the eight years litigating this case, plaintiffs have
presented evidence spanning over 50 years describing
43a
Appendix D
defendants’ contribution to climate change through
ERWK LQDFWLRQ DQG DIÀUPDWLYH SURPRWLRQ RI IRVVLO IXHO
use. The Court recalls plaintiffs’ evidence included a
letter by a top aide to President Nixon’s domestic policy
adviser emphasizing the effect of rising sea levels in
1969: “Goodbye New York. Goodbye Washington, for
that matter.”17 In 1986, a Senate subcommittee observed
that “there is a very real possibility that man—through
ignorance or indifference, or both—is irreversibly altering
the ability of our atmosphere to perform basic life support
functions for the planet.”18 Those are but two documents
out of hundreds highlighting the lengthy nature of
government knowledge of the dangers of fossil fuel
combustion. By and large, defendants have not disputed
the factual premises of plaintiffs’ claims. Juliana, 947
F.3d at 1167 (so stating). However, plaintiffs have not
legally established that evidence. In reviewing defendants’
motion to dismiss, the Court notes that, though it has
held evidentiary hearings and painstakingly reviewed
thousands of pages of declarations and exhibits, today, its
task is solely to decide whether plaintiffs have standing
to bring suit and state a claim upon which relief may be
granted. Fed. R. Civ. P. 12(b)(1), (6).
17. Memorandum from Daniel P. Moynihan, Assistant to the
President for Domestic Pol’y, to John Ehrlichman, Assistant to
the President for Domestic Affs. (Sept. 17, 1969), [https://perma.
cc/G92P-AKLJ].
18. Ozone Depletion, the Greenhouse Effect, and Climate
Change: Hearing Before the Subcomm. on Env’t Pollution of
the Comm. on Env’t & Pub. Works, 99th Cong. 2 (1986) (opening
statement of Sen. John H. Chafee, Chairman, Subcomm. on Env’t
Pollution).
44a
Appendix D
As an initial matter, defendants assert that the
Court must consider whether the rule of mandate, as
a jurisdictional rule, requires the Court to dismiss the
second amended complaint. Mot. at 10. Next, defendants
maintain that plaintiffs have failed to bring a justiciable
case and that the Court must dismiss plaintiffs’ claims
under Rule 12(b)(1) for lack of subject matter jurisdiction.
Id. DW )LQDOO\ GHIHQGDQWV XUJH WKH &RXUW WR ÀQG
that plaintiffs’ claims fail on the merits and that plaintiffs
should have brought this action under the Administrative
Procedure Act (“APA”) but failed to do so. Id. at 32.
I.
Mandate of the Court of Appeals for the Ninth
Circuit
Defendants state that the Ninth Circuit was clear
when it remanded the case to the Court with instructions
to dismiss. Id. at 11. Defendants argue that, when the
scope of the remand is clear, a district court cannot vary or
examine the mandate of an appellate court “for any other
purpose than execution.” Id. at 10 (citing In re Sanford
Fork & Tool Co., 160 U.S. 247, 255 (1895)). Defendants
contend that, rather than examine whether plaintiffs’
amended pleadings establish redressability to satisfy the
requirement of standing, the Court should reconsider the
Ninth Circuit’s mandate and dismiss the second amended
complaint. Id. at 11. Because it is jurisdictional error to
contravene a rule of mandate, the Court duly reconsiders
the mandate of the Ninth Circuit and does not take the
matter lightly.
“A district court that has received the mandate of an
appellate court cannot vary or examine that mandate for
45a
Appendix D
any purpose other than executing it.” Hall v. City of Los
Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012). “Violation of
the rule of mandate is a jurisdictional error.” Id. at 1067.
“But while the mandate of an appellate court forecloses
the lower court from reconsidering matters determined
in the appellate court, it leaves to the district court any
issue not expressly or impliedly disposed of on appeal.”
S.F. Herring Ass’n v. Dep’t of the Interior, 946 F.3d 564,
574 (9th Cir. 2019) (quoting Nguyen v. United States, 792
F.2d 1500, 1502 (9th Cir. 1986)). In determining which
matters fall within the compass of a mandate, “[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.” Vizcaino v. U.S. Dist.
Ct. for W. Dist. of Wash., 173 F.3d 713, 719 (9th Cir. 1999)
(as amended) (quoting Delgrosso v. Spang & Co., 903 F.2d
234, 240 (3d Cir. 1990)).
“Absent a mandate which explicitly directs to the
contrary, a district court upon remand can permit the
SODLQWLIIWRÀOHDGGLWLRQDOSOHDGLQJVµS.F. Herring, 946
F.3d at 574 (quoting Nguyen, 792 F.2d at 1502); see also
Sierra Club v. Penfold, 857 F.2d 1307, 1312 (9th Cir. 1988).
When the mandate in the prior appeal does not expressly
address the possibility of amendment and does not indicate
a clear intent to deny amendment seeking to raise new
issues not decided, that mandate does not purport “to
shut the courthouse doors.” S.F. Herring, 946 F.3d at 574.
In S.F. Herring, the Ninth Circuit discussed its
mandate in a prior appeal, which vacated the district court’s
order entering summary judgment in the defendants’ favor
46a
Appendix D
and directed the district court to dismiss the complaint.
See S.F. Herring Ass’n v. U.S. Dep’t of Interior, 683 F.
App’x 579, 581 (9th Cir. 2017) (vacating judgment and
remanding case with instructions to dismiss for lack of
subject matter jurisdiction). On remand, the district court
DOORZHGWKHSODLQWLIIWRÀOHDVHFRQGDPHQGHGFRPSODLQW
In the later appeal, the Ninth Circuit determined that the
district court correctly found that the earlier mandate to
dismiss did not prevent the plaintiff from seeking leave
to re-plead. S.F. Herring, 946 F.3d at 574. The appellate
court reasoned that in instructing the district court to
dismiss, the mandate was silent on whether dismissal
should be with or without leave to amend, and the mandate
therefore did not preclude the district court from allowing
SODLQWLIIWRÀOHDPHQGHGSOHDGLQJVId. at 572-574.
When this Court granted plaintiffs’ motion for leave to
amend, it “consider[ed] plaintiffs’ new factual allegations
under the Declaratory Judgment Act and plaintiffs’
amended request for relief, in light of intervening recent
precedent, to be a new issue that, while discussed, was
not decided by the Ninth Circuit in the interlocutory
appeal.” Juliana v. United States, No. 6:15-CV-01517-AA,
2023 WL 3750334, at (D. Or. June 1, 2023). The Court
RQFHDJDLQÀQGVWKDWWKH1LQWK&LUFXLW·VPDQGDWHGLGQRW
address whether amendment, if permitted, would cure the
GHÀFLHQF\LWLGHQWLÀHGLQSODLQWLIIV·FRPSODLQW
The Ninth Circuit also did not instruct the Court
to dismiss without leave to amend. Accordingly, its
mandate to dismiss did not foreclose that opportunity,
DQGWKH&RXUWRQUHFRQVLGHUDWLRQÀQGVWKDWLQSHUPLWWLQJ
47a
Appendix D
plaintiffs to proceed with their second amended complaint,
the rule of mandate is not contravened. S.F. Herring, 946
F.3d at 574; see also Creech v. Tewalt, 84 F.4th 777, 783 (9th
Cir. 2023) (where appellate court remanded and stated
that plaintiff should have leave to amend, district court
did not violate rule of mandate by dismissing without
leave to amend, because appellate court did not expressly
foreclose that option).
II. Standing
The Ninth Circuit determined that plaintiffs had
established an injury in fact, traceable to defendants—the
ÀUVWWZRHOHPHQWVRIFRQVWLWXWLRQDOVWDQGLQJJuliana 947
F.3d at 1168-70. For completeness in its standing analysis,
this Court adopts the Ninth Circuit’s determination.
Defendants reserve the right to “oppose” the Ninth
Circuit’s ruling. Mot. at 12.
'HIHQGDQWVFRQWHQGWKDWSODLQWLIIVKDYHQRWVDWLVÀHG
the third element of standing, because they failed to
demonstrate that their injuries are “redressable” and
that they are entitled to injunctive or declaratory relief.
Defendants maintain that plaintiffs’ requested relief fails,
because plaintiffs cannot show that the relief they seek
is (1) substantially likely to redress their injuries or (2)
within the Court’s power to award. Id. at 4-5, 12; see also
Spokeo, 578 U.S. at 338.
A plaintiff must support each element of the standing
test “with the manner and degree of evidence required at
the successive stages of the litigation.” Lujan, 504 U.S. at
48a
Appendix D
561 (1992). Accordingly, at the motion-to-dismiss stage,
´JHQHUDODOOHJDWLRQVµVXIÀFHWRHVWDEOLVKVWDQGLQJEHFDXVH
WKRVHDOOHJDWLRQVDUHSUHVXPHGWR´HPEUDFHWKRVHVSHFLÀF
facts that are necessary to support the claim.” Id. A
plaintiff need not show a favorable decision is “certain” to
redress his injury but must show a substantial likelihood
it will do so. Washington Env’t Council v. Bellon, 732
F.3d 1131, 1146 (9th Cir. 2013). The injury need not be
FRPSOHWHO\UHGUHVVDEOH LWLVVXIÀFLHQWWKDWWKHLQMXU\EH
partially redressed. Meese v. Keene, 481 U.S. 465, 476
(1987) (“enjoining the application of the words political
SURSDJDQGDWRWKHÀOPVZRXOGDWOHDVWSDUWLDOO\UHGUHVV
the reputational injury of which appellee complains.”).
As for plaintiffs’ request for declaratory relief, the
Ninth Circuit determined that a declaration would be
“unlikely by itself to remediate [plaintiffs’] alleged
injuries.” Juliana 947 F.3d at 1170. For injunctive relief,
the Ninth Circuit was “skeptical,” but assumed without
deciding that plaintiffs might be able to show that their
injuries could be redressed by an order in their favor. Id. at
1171. That said, the appellate court based its ruling on the
second redressability prong, stating that an injunction was
“beyond the power of an Article III court to order, design,
supervise, or implement.” Id. Plaintiffs’ second amended
complaint scales down the requested injunctive relief,
seeking “an injunction restraining [d]efendants from
FDUU\LQJRXWSROLFLHVSUDFWLFHVDQGDIÀUPDWLYHDFWLRQV
that render the national energy system unconstitutional
in a manner that harms [p]laintiffs,” and only “if deemed
necessary, just and proper.” SAC at 143 ¶ 4.
49a
Appendix D
Accordingly, for plaintiffs’ claim for both injunctive
relief and declaratory relief, the Court will evaluate
whether each form of relief is (1) substantially likely to
redress their injuries and (2) within the Court’s power to
award. Spokeo, 578 U.S. at 338.
A.
Injunctive Relief
1.
Substantial Likelihood of Redress
Defendants assert that an order enjoining defendants’
fossil fuel activities will not stop catastrophic climate
change or even partially ameliorate plaintiffs’ injuries,
and therefore, any such injunction is not substantially
likely to redress plaintiffs’ injuries and satisfy standing.
Mot. at 12.
Whether a court order will halt all climate change
by restraining defendants from carrying out fossil fuel
activities is the wrong inquiry for at least two reasons.
First, redressability does not require certainty, it requires
only a substantial likelihood that the Court could provide
meaningful relief. Spokeo, 578 U.S. at 338. Second, the
possibility that some other individual or entity might
cause the same injury does not defeat standing—the
question is whether the injury caused by the defendant
can be redressed.
Defendants have not disputed plaintiffs’ factual
allegations that they produce a quarter of all emissions
on Earth. Juliana, 947 F.3d at 169. Based on plaintiffs’
alleged facts, an order to defendants to refrain from
50a
Appendix D
certain fossil fuel activities which are causing plaintiffs’
injuries would redress those injuries. On the spectrum of
likely to unlikely, a favorable court order is much closer to
likely, i.e., substantially likely, to redress plaintiffs’ harm.
“Substantially likely” is a legal characterization,
QRWDQHYLGHQFHEDVHGVFLHQWLÀFQXPEHU4XDQWLI\LQJD
threshold datapoint at which plaintiffs’ harm would be
UHPHGLHGZRXOGLQYROYHULJRURXVGLVFLSOLQHGIDFWÀQGLQJ
and inevitably would raise a host of questions: What part
of plaintiffs’ injuries stem from causes beyond defendants’
control? Even if emissions increase elsewhere, will the
extent of plaintiffs’ injuries be less if they obtain the relief
they seek in this lawsuit? When would we reach this “point
of no return” that plaintiffs’ evidence describes, and do
defendants have it within their power to avert reaching
it, even without cooperation from third parties? All these
questions are inextricably bound up in an evidentiary
inquiry, and none of them can be answered at the motionWRGLVPLVV VWDJH $W WKLV MXQFWLRQ WKH &RXUW ÀQGV WKDW
plaintiffs have shown that a favorable decision from this
Court would be substantially likely to redress plaintiffs’
injuries. Defendants’ motion to dismiss is denied as to
this issue.
2.
The Court’s Power to Provide Redress
Defendants assert that the Ninth Circuit determined
WKDWWKHLQMXQFWLRQSODLQWLIIVVRXJKWLQWKHLUÀUVWDPHQGHG
complaint would “necessarily require a host of complex
policy decisions entrusted ... to the wisdom and discretion
of the executive and legislative branches,” Juliana, 947
51a
Appendix D
F.3d at 1171, decisions “which must be made by the
People’s elected representatives.” Id. at 1172. Defendants
maintain that, even with amendment, plaintiffs’ requested
injunctive relief is unavailable, because it would “enjoin
the executive branch from exercising discretionary
authority” granted to it by statute, and would enjoin
Congress from exercising power expressly granted to it
by the Constitution. Mot. at 13 (citing the Property Clause,
U.S. Const. art. IV, § 3, cl. 2). In defendants’ view, the
requested injunction remains beyond a district court’s
power to award. Id.
While crafting and implementing injunctions in cases
involving longstanding agency shortcomings may require
ULJRURXVDGYHUVDULDOIDFWÀQGLQJWRSHQHWUDWHTXHVWLRQV
of science, there is nothing exceptional about a federal
court issuing injunctions against federal agencies. See
e.g., Nw. Env’t Def. Ctr. v. United States Army Corps of
Engineers, No. 3:18-CV-00437-HZ, 2021 WL 3924046 (D.
Or. Sept. 1, 2021) (injunction requiring U.S. Army Corps
RI(QJLQHHUVWRLPSOHPHQWGUDZGRZQVSLOODQGVSHFLÀF
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expert panel to craft implementation plans; and requiring
status reports from agency).
Other federal district courts have similarly ordered
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granting this type of injunctive relief falls within the
“broad equitable powers” of district courts. Cobell VI, 240
F.3d 1081, 1108 (D.C. Cir. 2001); Gautreaux v. Romney,
457 F.2d 124, 132 (7th Cir. 1972). Courts may also
issue injunctions even when “ordering what is in effect
52a
Appendix D
nationwide relief.” Bresgal v. Brock, 843 F.2d 1163, 1171
(9th Cir. 1987).
Without any explicit statutory command to the
contrary, no court has held that these powers categorically
fail on separation-of-powers grounds. See Samuel
Buckberry Joyce, Climate Injunctions: The Power of
Courts to Award Structural Relief Against Federal
Agencies, 42 Stan. Env’tl. L.J. 241, 268-281, May 2023
(compiling cases featuring structural injunctions against
the federal government).
Familiar instances of large-scale institutional
litigation in modern American history include cases
that ordered busing to desegregate schools;19 the treaty
ULJKWVFDVHVWKDWDVVXUHGDIDLUVKDUHRIÀVKIRU$PHULFDQ
,QGLDQWUHDW\ÀVKHUV 20 cases instituting prison condition
reform;21 and cases relating to land use and low-income
housing. 22 Legal scholars have cited those cases and
explained that injunctions in those cases “aimed to break
down, scrutinize, and reform institutional dynamics and
19. See, e.g., Brown v. Bd. of Educ. of Topeka, 347 U.S. 483
(1954); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S.
1 (1971); Milliken v. Bradley, 418 U.S. 717 (1974); Green v. Cnty.
Sch. Bd. of New Kent Cnty., 391 U.S. 430 (1968).
20. See, e.g., United States v. Washington, 520 F.2d 676 (9th
Cir. 1975); Washington v. Washington State Com. Passenger
Fishing Vessel Ass’n, 443 U.S. 658 (1979).
21. See, e.g., Brown v. Plata, 563 U.S. 493 (2011); Hudson v.
McMillian, 503 U.S. 1 (1992); Hutto v. Finney, 437 U.S. 678 (1978).
22. See Hills v. Gautreaux, 425 U.S. 284, 298 (1976).
53a
Appendix D
practices that caused the government to repeatedly violate
fundamental rights of citizens to bring about enduring
constitutional and civil rights compliance.” 23
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remedy was an injunction requiring the government not
only to “cease permitting, authorizing, and subsidizing”
fossil fuel use, but also to “prepare a remedial plan subject
to judicial approval to draw down harmful emissions.”
Juliana, 947 F.3d at 1170.
When it determined that plaintiffs’ requested relief
was beyond the power of an Article III court to order, the
Ninth Circuit did not offer any explicit guidance on how
to distinguish other structural injunction cases, where
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relief, from this case, where the relief necessary to redress
plaintiffs’ injuries is held to be too broad.
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complaint. At this point in the litigation, where the facts
alleged are accepted as true, the Court can only identify
one distinction between the injunction plaintiffs’ request
and the injunctions issued in the structural reform cases
described above. In other reform cases, those plaintiffs’
obtained injunctions against a single agency for a discreet
violation of law. In this case, plaintiffs seek relief on
constitutional grounds and historical trust principles
against a host of governmental defendants.
23. Wood, Eve of Destruction, at 262.
54a
Appendix D
The Court appreciates that, under existing precedent,
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“scaled down” request plaintiffs make now, against every
named defendant in this suit, would be more expansive
than any case of which the Court is aware.
On the other hand, requiring plaintiffs to bring
piecemeal statutory actions against individual agencies
perpetuates a status quo unlikely to bring about the allout course correction necessary to avoid the impending
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on discreet agency shortcomings may be a viable path
to achieving protections for the environment. However,
a court order directing the agencies to work together,
outside their silos to oversee resolution of a complex,
multiagency problem may prove especially constructive
where a practical solution has eluded the entire government
for decades.
Such an order has not proven to be necessary—and is
perhaps premature—at this point in the case. Plaintiffs’
amended request for injunction, though narrower, still
treads on ground over which Ninth Circuit cautioned the
Court not to step. If the reform plaintiffs seek is to prod
a negotiated change of behavior, it is unnecessary to seek
injunctive relief at this point to do so. Defendants’ motion
to dismiss plaintiffs’ claim for injunctive relief is granted.
B. Declaratory Relief
Plaintiffs’ second amended complaint seeks a
declaration that “the national energy system” violates
55a
Appendix D
the Constitution and the public trust doctrine. SAC at
143, ¶¶ 1-3. Defendants contend that plaintiffs’ claim for
declaratory relief must be dismissed, asserting that the
declaration is not materially distinct from the declaration
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defendants argue that plaintiffs cannot satisfy the
two prongs for redressability, because an “unbounded
declaration” alone will not redress plaintiffs’ injuries,
and declaring an “energy system” unconstitutional
ZRXOG´IXQFWLRQDOO\GHFODUHXQFRQVWLWXWLRQDOXQVSHFLÀHG
laws, regulations, and policies,” and such a declaration is
therefore not within the power of a federal court. Mot.
at 14.
1.
Substantial Likelihood of Redress
Under the Declaratory Judgment Act, 28 U.S.C.
§§ 2201, et seq., courts can grant declaratory relief in
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warranted. “In a case of actual controversy within its
jurisdiction, [ ] any court of the United States, upon the
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and other legal relations of any interested party seeking
such declaration, whether or not further relief is or could
be sought. Any such declaration shall have the force and
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as such.” 28 U.S.C. § 2201. “Further necessary or proper
relief based on a declaratory judgment or decree may be
granted, after reasonable notice and hearing, against any
adverse party whose rights have been determined by such
judgment.” 28 U.S.C. § 2202.
56a
Appendix D
The Supreme Court has long recognized that
declaratory judgment actions can provide redressability,
even where relief obtained is a declaratory judgment
alone. See generally Franklin v. Massachusetts, 505 U.S.
788, 803 (1992) and Utah v. Evans, 536 U.S. 452 (2002).
In Franklin and Evans, states objected to the technique
used by the Census Bureau to count people and those
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In Franklin v. Massachusetts, the Supreme Court
stated that “[f]or purposes of establishing standing,”
it did not need to decide whether injunctive relief was
appropriate where “the injury alleged is likely to be
redressed by declaratory relief,” and the court could
“assume it is substantially likely that the President and
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an authoritative interpretation of the census statute and
constitutional provision by the District Court.” 505 U.S.
at 803. In Utah v. Evans, the Supreme Court referenced
Franklin, explaining that, in terms of its “standing”
precedent, declaratory relief affects a change in legal
status, and the practical consequence of that change would
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plaintiff would obtain relief that directly redresses the
injury suffered.” 536 U.S. 452 (2002).
Other cases recognize the role of declaratory
relief in resolving Constitutional cases. Se
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