9th Circuit Gives Eco-Warrior Kids A Day In Court.

Kids File Lawsuit To Save The World.

The swelling movement of young people seeking to change America did not necessarily start with the #NeverAgain movement in response to the mass shooting at a high school in Parkland Florida. In September 2015 a group of 21 children filed a complaint in the United States Court for the District of Oregon against the United States of America (and various governmental entities including the President) alleging the government’s failure to curtail CO2 emissions violated their Constitutional rights to equal protection, and fundamental due process. The kids ranged in age from 8 to 19 years old.

The Government’s Motion To Dismiss.

Unsurprisingly the Government quickly motioned to dismiss these young upstarts to the judicial system. The arguments are legally complex, but it has to be understood that the government sought dismissal at a very early stage, before any discovery even occurred. The government claimed the young Plaintiffs’ complaint was deficient on its face (a Rule 12b(6) motion) as it failed to state a claim for which the court could grant relief.

An important aspect of this kind of motion is that the facts alleged in the Plaintiffs’ Complaint are assumed at this stage to be true. A Defendant seeking dismissal must prove the Complaint is facially defective, as a matter of law, even if all the facts it asserts are assumed true. Thus, in this motion the factual claims of the young Plaintiffs, that climate change is real, and will impact their generation most if something is not done, are assumed true.

This obviously makes seeking dismissal on Rule 12b(6) grounds hard, but not impossible. Examples of when it might be appropriate include when the Plaintiffs lack standing, or when the case is “non-justiciable.” Non-justiciability can be found when the issue is a “political question” beyond the competence of courts to consider or when the remedy sought by Plaintiffs is beyond the authority of courts to grant. Another basis would be when the Plaintiffs’ claims rely on a facially defective application of law. For example, the Government claims there is no Constitutional right to a particular environment, or Constitutional right for the Government to enact some particular environmental policy.

The District Court Rejects The Government’s Dismissal Motion.

It was on such grounds that the Government sought dismissal. In November 2016 the District Court rejected the Government’s motion to dismiss at this very early phase of the proceeding. The reasoning is complex, and I commend it to your reading. The District Court acknowledged the unusual nature of the Plaintiffs’ claims, dryly declaring, “This is no ordinary lawsuit.”

In a key holding the District Court judge agreed a legitimate Constitutional right was at issue, with the judge stating, “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.” For this reason the Complaint asserted a legitimate substantive due process claim similar to the rights to abortion and same sex marriage.

The Government’s Appeal To The United States Court Of Appeals.

The Government appealed the District Court’s denial of its motion to dismiss. Such “interlocutory appeals” are disfavored because normally an appellate court will only consider a final determination of a lower court. Accordingly, the standard for granting such motions is quite high.

The government filed a Motion for Mandamus, an order by a court compelling a government entity to perform a particular action. In this case the Government asked the 9th Circuit Court of Appeals to order the District Court to dismiss the case. The Government claimed it would be irreparably harmed by onerous discovery it expected the Plaintiffs to seek.

The standard for granting a Mandamus action is exceptionally high. Courts have held the “writ of mandamus is a drastic and extraordinary remedy reserved for really extraordinary causes” and that “only exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion will justify the invocation of this extraordinary remedy.”

On March 7, 2018 a three judge panel of the 9th Circuit unanimously denied the Government’s motion holding that the Government’s request did not overcome the daunting standards for granting a Mandamus order.

For starters, the Government’s alleged irreparable harm of onerous discovery was speculative and premature considering not a single motion for discovery had even been filed in the case. In addition, granting Mandamus requires that there be no other remedy at law available. There are remedies at law for overly broad discovery demands, and the Government did not even give those a chance at the District Court. As the 9th Circuit stated, should a discovery dispute arise, “the defendants can challenge that specific discovery request on the basis of privilege or relevance . . . Mandamus relief is inappropriate where the party has never sought relief before the district court to resolve a discovery dispute.”

Mandamus can also only be granted when the lower court’s decision was so much in “clear error” that it amounts to being abusive. The Court of Appeals had some interesting comments on this. The Court of Appeals found that the young plaintiffs’ claims were so novel and unprecedented that “the absence of controlling precedent in this case weighs strongly against a finding of clear error.” The burden was on the government to show the lower court’s clear error, and the the government could cite no precedent to do so.

The Court of Appeals concluded with laudatory comments regarding the “orderly administration of litigation” in its proper sequence, noting that “if appellate review could be invoked whenever a district court denied a motion to dismiss, we would be quickly overwhelmed with such requests.”

However, the Court of Appeals did express some skepticism regarding the ultimate merits of the Plaintiffs’ claims that were “quite broad” and some remedies the court might not be able to address. However, at this early stage the Court of Appeals noted: “claims and remedies often are vastly narrowed as litigation proceeds; we have no reason to assume this case will be any different.”

Accordingly, the Court of Appeals dismissed the Government’s motion “without prejudice” leaving the Government free to file such a motion again at a later, more mature phase in the proceedings.

Where It Goes From Here.

However, for today, this bold and innovative case filed by these kids lives on. The matter is returned to the District Court for further proceedings, to include discovery. Afterward, the Government may file Motions for Summary Judgement, where the legal standards are not quite as daunting as those for a Rule 12b(6) Motion or Writ for Mandamus.

Motions for Summary Judgements are rulings on the merits of the case, so win or lose, the kids will at least get their arguments considered on the merits.

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