United States District Court, D. Oregon, Eugene Division
KELSEY CASCADIA ROSE JULIANA, et al. Plaintiffs,
UNITED STATES OF AMERICA, et at., Defendants.
Aiken United States District Judge
November 10, 2016, this Court issued an opinion and order
denying federal defendants' and intervenor
defendants' motions to dismiss (doc. 83). On March 7,
2017, federal defendants filed a motion to certify the
November 10 opinion and order for immediate appeal, pursuant
to 28 U.S.C. § 1292(b) (doc, 120). That same day,
federal defendants filed a motion to stay proceedings in this
case pending consideration of the motion to certify and,
should the Court grant certification, pending resolution of
the appeal (doc. 121). On March 10, 2017, intervenor
defendants joined federal defendants' motions and filed a
separate motion seeking certification (doc. 122).
April 7, 2017 status conference, Magistrate Judge Coffin
denied the request for a stay pending consideration of the
motions to certify. Doc. 137. On May 1, 2017, Judge Coffin
filed Findings and Recommendation ("F&R")
recommending this Court deny the motions for certification
(doc. 146). Judge Coffin also reiterated his denial of the
request for a stay. Defendants filed objections to both the
denial of certification for interlocutory appeal and the
denial of a stay (docs. 149, 151, 152). Plaintiffs filed
responses (docs. 159, 165, 168). Judge Coffin's F&R
is now before me pursuant to 28 U.S.C. § 636(b) and
Federal Rule of Civil Procedure 72.
threshold matter, I note that on June 6, 2017, defendants
filed a "notice regarding pending motions" (doc.
171). The "notice" documents the government's
request for expedited review of its motions for a stay and
for certification for interlocutory review. It then
"respectfully requests resolution of [defendants']
two pending motions by Friday, June 9, 2017." The notice
then states that, "[i]n the absence of such resolution
by this Court, the United States will seek the aforementioned
review and relief in the Court of Appeals." Doc. 171 at
have received expedited consideration. This Court generally
endeavors to provide litigants with a ruling on their dispute
within sixty days of the close of briefing on the subject. In
issuing a thorough and thoughtful F&R just twenty-one
days after the close of briefing on the motions, Judge Coffin
appropriately balanced defendants' desire for an
expedited decision against the need to reach a careful,
correct result in a complex case. Similarly, this order is
issuing only fourteen days after plaintiffs filed their final
response to defendants' objections. Even though this
Court has plainly been proceeding on an expedited schedule,
the government reasonably reiterated its request for an
expedited final decision, particularly because the
parties' in-person status conference, scheduled next
week, doubtless will be made more productive by the
resolution of the pending motions.
threat to run directly to the Ninth Circuit if this Court
does not abide by a unilaterally imposed "deadline"
is another matter. First, whether to grant expedited hearing
at all is a trial management decision committed to the
discretion of the district court. Johnson v. Reilly,
349 F.3d 1149, 1156 (9th Cir. 2003). Defendants cited
"the significance of the issues raised and the burden
that discovery is likely to impose" in support of their
request for expedited consideration. Fed. Defs.' Mot.
Certify Order Interlocutory Appeal at 2 (doc. 120). Those
reasons are insufficient to give defendants any right to
expedited consideration at all, much less a right to more
expedited consideration than the Court already has provided,
Second, the government's belief that it is legally
entitled to an immediate ruling on a motion it submitted
three months ago is rather ironic given that it waited four
months to file the request for interlocutory certification in
the first place.
to the F&R, I first consider the appropriate standard of
review. Although the parties agree that Judge Coffin's
denial of the request for a stay is reviewed for clear error,
they disagree over the standard of review applicable to the
recommendation to deny certification of the November 10
opinion and order for interlocutory review. Plaintiffs argue
that resolution of a motion for certification under 28 U.S.C.
§ 1292(b) is a pretrial matter that should be reviewed
for clear error. Defendants respond that de novo is
the appropriate standard of review for any portion of an
F&R to which a party has filed an objection.
are incorrect that de novo applies as a blanket
standard to any matter resolved in an F&R. The
question of which standard to apply to a district judge's
review of a magistrate judge's recommendation regarding
1292(b) certification presents a difficult and novel question
of statutory interpretation. Compare 28 U.S.C.
§ 636(b)(1)(A) (authorizing magistrate judges to
"hear and determine any pretrial matter pending before
the court" subject to certain statutory exceptions not
applicable here, and specifying that a district judge may
"reconsider any pretrial matter under this subparagraph
. . . where it has been shown that the magistrate judge's
order is clearly erroneous or contrary to law") with
Id. § 1292(b) (making certification for
interlocutory appeal dependent on the "opinion" of
the "district judge").
not find it necessary to resolve the question today, because
I would reach the same result under either the clear error or
de novo standard. I agree with Judge Coffin that
certification for interlocutory appeal is not warranted in
this case, I ADOPT Judge Coffin's F&R (doc. 146).
Defendants' motions to certify the November 10 order and
opinion for interlocutory appeal (docs. 120 & 122) are
DENIED. Defendants' request for a stay (doc. 121) is
DENIED as moot.
 All three intervenor defendants have
now moved to withdraw from this case. See Docs. 163,
166, 167. Because Judge Coffin has not yet ruled on those
motions, I issue this decision having fully considered the
arguments raised by all defendants.
 Courts generally reject motions for
certification as untimely when they are filed after a delay
longer than three months. See Abbey v. United
States, 89 F.3d CI. 425, 430-31 (Fed. CI. 2009)
(surveying cases and noting that "[d]elays longer than
three months have generally been found to be untimely and
motions to certify interlocutory appeals have been
denied"). The government attempts to excuse its delay by
noting that a new president took office between November 10
and March 7 and by citing the complex internal procedures the
Department of Justice uses to decide whether to file a motion