D.C. No. 6:15-cv-01517-AA ORDER -- 1 of 10 -- JULIANA V. UNITED STATES 2 through his… v. United States of America

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KELSEY CASCADIA ROSE JULIANA;
XIUHTEZCATL TONATIUH M.,
through his Guardian Tamara
Roske-Martinez; ALEXANDER
LOZNAK; JACOB LEBEL; ZEALAND
B., through his Guardian Kimberly
Pash-Bell; AVERY M., through her
Guardian Holly McRae; SAHARA
V., through her Guardian Toa
Aguilar; KIRAN ISAAC OOMMEN;
TIA MARIE HATTON; ISAAC V.,
through his Guardian Pamela
Vergun; MIKO V., through her
Guardian Pamel Vergun; HAZEL
V., through her Guardian Margo
Van Ummerson; SOPHIE K.,
thourgh her Guardian Dr. James
Hansen; JAIME B., through her
Guardian Jamescita Peshlakai;
JOURNEY Z., through his Guardian
Erika Schneider; VICTORIA B.,
through her Guardian Daisy
Calderon; NATHANIEL B., through
his Guardian Sharon Baring; Aji
P., through his Guardian Helaina
Piper; LEVI D., through his
Guardian Leigh-Ann Draheim;
JAYDEN F., through her Guardian
Cherri Foytlin; NICHOLAS V.,
No. 18-80176
D.C. No.
6:15-cv-01517-AA
ORDER

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JULIANA V. UNITED STATES 2
through his Guardian Marie
Venner; EARTH GUARDIANS, a
nonprofit organization; FUTURE
GENERATIONS, through their
Guardian Dr. James Hansen,
Plaintiffs-Respondents,
v.
UNITED STATES OF AMERICA;
CHRISTY GOLDFUSS, in her
capacity as Director of Council on
Environmental Quality; SHAUN
DONOVAN, in his official capacity
as Director of the Office of
Management and Budget; JOHN
HOLDREN, DR., in his official
capacity as Director of the Office
of Science and Technology Policy;
ERNEST MONIZ, DR., in his official
capacity as Secretary of Energy;
U.S. DEPARTMENT OF THE
INTERIOR; SALLY JEWELL, in her
official capacity as Secretary of
Interior; U.S. DEPARTMENT OF
TRANSPORTATION; ANTHONY
FOXX, in his official capacity as
Secretary of Transportation;
UNITED STATES DEPARTMENT OF
AGRICULTURE; THOMAS J.
VILSACK, in his official capacity as
Secretary of Agriculture; UNITED
STATES DEPARTMENT OF
COMMERCE; PENNY PRITZKER, in

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JULIANA V. UNITED STATES 3
her official capacity as Secretary
of Commerce; UNITED STATES
DEPARTMENT OF DEFENSE;
ASHTON CARTER, in his official
capacity as Secretary of Defense;
UNITED STATES DEPARTMENT OF
STATE; JOHN F. KERRY, in his
official capacity as Secretary of
State; GINA MCCARTHY, in her
official capacity as Administrator
of the EPA; OFFICE OF THE
PRESIDENT OF THE UNITED
STATES; U.S. ENVIRONMENTAL
PROTECTION AGENCY; U.S.
DEPARTMENT OF ENERGY;
DONALD J. TRUMP, in his official
capacity as President of the United
States,
Defendants-Petitioners.
Filed December 26, 2018
Before: Sidney R. Thomas, Chief Judge, and Marsha S.
Berzon and Michelle T. Friedland, Circuit Judges.
Order;
Dissent by Judge Friedland

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JULIANA V. UNITED STATES 4
SUMMARY*
Certification for Interlocutory Appeal
The panel designated for publication the order dated
December 26, 2018, which granted the petition for permission
to appeal pursuant to 28 U.S.C. § 1292(b).
The panel held that the district court properly concluded
that the issues presented by this case satisfied the standard set
forth in § 1292(b) and properly exercised its discretion in
certifying the case for interlocutory appeal.
Judge Friedland dissented, and she would hold that the
court lacks appellate jurisdiction because she would read
28 U.S.C. § 1292(b) to give discretion to district judges to
determine whether an immediate appeal will promote judicial
efficiency, and to authorize only those interlocutory appeals
that the district judge believes will do so. Reading the
certification order as a whole, Judge Friedland does not
believe that the district judge was actually of the opinion that
an immediate appeal would promote judicial efficiency.
COUNSEL
Jeffrey Bossert Clark, Assistant Attorney General; Eric Grant,
Deputy Assistant Attorney General; Andrew C. Mergen,
Sommer H. Engels, and Robert J. Lundman, Attorneys;
Environment and Natural Resources Division, United States
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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JULIANA V. UNITED STATES 5
Department of Justice, Washington, D.C.; for Defendants-
Petitioners.
Philip L. Gregory, Gregory Law Group, Redwood City; Julia
A. Olson, Wild Earth Advocates, Eugene, Oregon; Andrew
K. Rodgers, Law Offices of Andrew K. Rodgers, Seattle,
Washington; for Plaintiffs-Respondents.
ORDER
The district court certified this case for interlocutory
appeal pursuant to 28 U.S.C. § 1292(b), finding “that each of
the factors outlined in § 1292(b) have been met . . . .” Thus,
the district court “exercise[d] its discretion” in certifying the
case for interlocutory appeal, noting that it did “not make this
decision lightly.”
An interlocutory appeal under 28 U.S.C. § 1292(b) is
authorized when a district court order “‘involves a controlling
question of law as to which there is substantial ground for
difference of opinion’ and where ‘an immediate appeal from
the order may materially advance the ultimate termination of
the litigation.’” Reese v. BP Expl. (Alaska) Inc., 643 F.3d
681, 687–88 (9th Cir. 2011) (quoting 28 U.S.C. § 1292(b)).
The district court properly concluded that the issues presented
by this case satisfied the standard set forth in § 1292(b) and
properly exercised its discretion in certifying this case for
interlocutory appeal.
The petition for permission to appeal pursuant to
28 U.S.C. § 1292(b) is granted. Within 14 days after the date
of this order, petitioners shall perfect the appeal in

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JULIANA V. UNITED STATES 6
accordance with Federal Rule of Appellate Procedure 5(d).
All pending motions are denied as moot.
FRIEDLAND, Circuit Judge, dissenting:
In the process of granting certification, the district court
expressed that it does not actually think that the criteria for
certification are satisfied. Because I read 28 U.S.C. § 1292(b)
to give discretion to district judges to determine whether an
immediate appeal will promote judicial efficiency—and to
authorize only those interlocutory appeals that the district
judge believes will do so—I think the district court’s
statements prevent us from permitting this appeal.
Appellate review is ordinarily available only after a
district court has entered a final judgment. 28 U.S.C. § 1291.
As the Supreme Court has explained, this foundational
default rule serves “important purposes,” including
“emphasiz[ing] the deference that appellate courts owe to the
trial judge as the individual initially called upon to decide the
many questions of law and fact that occur in the course of a
trial,” “avoid[ing] the obstruction to just claims that would
come from permitting the harassment and cost of a succession
of separate appeals,” and “promoting efficient judicial
administration.” Firestone Tire & Rubber Co. v. Risjord,
449 U.S. 368, 374 (1981) (internal quotation marks and
citations omitted). And while § 1292(b) allows departures
from that rule in limited instances, certification of
interlocutory appeals should be granted only in “exceptional
circumstances.” Coopers & Lybrand v. Livesay, 437 U.S.
463, 475 (1978).

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JULIANA V. UNITED STATES 7
A district court may certify an order for interlocutory
appeal under § 1292(b) only if it is “of the opinion” that
(1) the “order involves a controlling question of law as to
which there is substantial ground for difference of opinion,”
and (2) “an immediate appeal from the order may materially
advance the ultimate termination of the litigation.” 28 U.S.C.
§ 1292(b). The Supreme Court indicated that it believes this
case involves controlling questions as to which there are
substantial grounds for difference of opinion. United States
v. U.S. District Court, 139 S. Ct. 1 (July 30, 2018) (mem)
(“The breadth of respondents’ claims is striking, however,
and the justiciability of those claims presents substantial
grounds for difference of opinion.”); see also United States v.
U.S. District Court, — S. Ct. —, 2018 WL 5778259, at *1
(Nov. 2, 2018) (mem) (referencing the Court’s July 30th
order as “noting that the ‘striking’ breadth of plaintiffs’
claims ‘presents substantial grounds for difference of
opinion’”). We referenced that assessment in our own order
granting Petitioners’ motion for a temporary stay to allow
time for consideration of pending motions. Order, United
States v. U.S. District Court, No. 18-73014, Dkt. 3 (9th Cir.
Nov. 8, 2018).
Apparently in response, the district court certified its
motion to dismiss, judgment on the pleadings, and summary
judgment orders for immediate appeal. Reading the
certification order as a whole, however, I do not believe that
the district court was actually “of the opinion” that “an
immediate appeal from [these orders] [would] materially
advance the ultimate termination of the litigation”—nor did
it meaningfully “so state.” 28 U.S.C. § 1292(b). The district
court emphasized that “[t]rial courts across the country
address complex cases involving similar jurisdictional,
evidentiary, and legal questions as those presented here

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JULIANA V. UNITED STATES 8
without resorting to certifying for interlocutory appeal,” and
the court said that it stood “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.” Juliana v. United States, No. 6:15-CV-01517-AA,
2018 WL 6303774, at *3 (D. Or. Nov. 21, 2018). But the
court then suggested that, because of the Supreme Court’s
statements and our repetition thereof in what the court called
an “extraordinary Order,” it was “find[ing] that each of the
factors outlined in § 1292(b) [were] met.” Id.
Although the district court’s statement that the § 1292(b)
factors were met would ordinarily support certification, here
it appears that the court felt compelled to make that
declaration even though—as the rest of its order
suggests—the court did not believe that to be true. This is
very concerning, because § 1292(b) reserves for the district
court the threshold determination whether its two factors are
met. The statutory scheme makes particular sense with
respect to the second factor, because although we and the
Supreme Court may be as well-positioned as the district court
to consider whether § 1292(b)’s purely legal first requirement
is satisfied, the district court—having, among other things,
direct experience with the parties, knowledge of the status of
discovery, and the ability to sequence issues for trial—is far
better positioned to assess how to resolve the litigation most
efficiently. Neither we nor the Supreme Court had expressed
a view on that second requirement, but it seems the district
court interpreted our orders as mandating certification
anyway.1
1 It is also 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

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JULIANA V. UNITED STATES 9
Section 1292(b) respects the district court’s superior
vantage point and its particular, critical role in the judicial
process by allowing an interlocutory appeal only when the
district court is “of the opinion” that both of the section’s
requirements are met. 28 U.S.C. § 1292(b). We have
accordingly held that we lack jurisdiction when a district
court grants certification but simultaneously expresses that it
does not think the requirements of § 1292(b) are satisfied.
Court. If anything has wasted judicial resources in this case, it was those
efforts. See Petition for Writ of Mandamus to the United States District
Court for the District of Oregon and Request for Stay of Proceedings in
District Court, United States v. U.S. District Court, No. 17-71692, Dkt. 1
(9th Cir. June 9, 2017) (requesting a stay of district court proceedings and
relief from the Ninth Circuit); Petition for a Writ of Mandamus and
Emergency Motion for a Stay of Discovery and Trial Under Circuit Rule
27-3, United States v. U.S. District Court, No. 18-71928, Dkt. 1 (9th Cir.
July 5, 2018) (same); Application for a Stay Pending Disposition by the
United States Court of Appeals for the Ninth Circuit of a Petition for a
Writ of Mandamus to the United States District Court for the District of
Oregon and Any Further Proceedings in This Court and Request for an
Administrative Stay, United States v. U.S. District Court, No. 18A65
(U.S. July 17, 2018) (requesting a stay from the Supreme Court pending
Ninth Circuit review of mandamus petition); Petition for a Writ of
Mandamus Requesting a Stay of District Court Proceedings Pending
Supreme Court Review, Emergency Motion Under Circuit Rule 27-3,
United States v. U.S. District Court, No. 18-72776, Dkt. 1 (9th Cir. Oct.
12, 2018) (requesting a stay of district court proceedings from the Ninth
Circuit pending Supreme Court review of mandamus petition);
Application for a Stay Pending Disposition of a Petition for a Writ of
Mandamus to the United States District Court for the District of Oregon
and any Further Proceedings in this Court and Request for an
Administrative Stay, In re United States, Applicants, No. 18A410 (U.S.
Oct. 18, 2018) (bypassing the Ninth Circuit and requesting mandamus
relief from the Supreme Court); Petition for a Writ of Mandamus and
Emergency Motion Under Circuit Rule 27-3, United States v. U.S. District
Court, No. 18-73014, Dkt. 1 (9th Cir. Nov. 5, 2018) (requesting a stay of
district court proceedings and relief from the Ninth Circuit).

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JULIANA V. UNITED STATES 10
See Couch v. Telescope, Inc., 611 F.3d 629, 632 (9th Cir.
2010). Because that is the situation we face here, I believe
we should allow the case to proceed to trial.2 We could then
resolve any novel legal questions if and when they are
presented to us after final judgment.
For these reasons, I respectfully dissent.
2 In Couch, after explaining that interlocutory appeal was precluded
by the district court’s assessment of the § 1292(b) requirements, we went
on to also discuss why we believed the district court was correct in that
assessment. 611 F.3d at 633–34. That further discussion, which related
to § 1292(b)’s first requirement, seems to have been unnecessary to our
holding regarding application of § 1292(b), which turns solely on the
district judge’s opinion whether the two factors are satisfied. But, in any
event, I do not think the district court’s conclusion here that “this case
would be better served by further factual development at trial” than by
immediate appeal represents an abuse of discretion. Juliana, 2018 WL
6303774, at *3; cf. United States v. W.R. Grace, 526 F.3d 499, 509, 516
(9th Cir. 2008) (en banc) (emphasizing that “district courts have inherent
power to control their dockets” and that we review pretrial case
management and discovery orders for abuse of discretion); Gen. Signal
Corp. v. MCI Telecommc’ns Corp., 66 F.3d 1500, 1507 (9th Cir. 1995)
(“This court reviews issues relating to the management of trial for an
abuse of discretion.”).

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