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District of Columbia v. Trump

United States District Court, D. Maryland

November 2, 2018

THE DISTRICT OF COLUMBIA and THE STATE OF MARYLAND, Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States, Defendant.

          MEMORANDUM OPINION

          PETER J. MESSITTE UNITED STATES DISTRICT JUDGE.

         I. Procedural Background

         In a previous Opinion, the Court held that the District of Columbia and the State of Maryland have standing to challenge, in his official capacity, President Donald J. Trump based on his alleged violations of the Foreign and Domestic Emoluments Clauses of the U.S. Constitution.[1] The Court found that Plaintiffs had standing based on proprietary, quasi-sovereign, and parens patriae interests vis-a-vis the President's undisputed ownership interest in the Trump International Hotel in Washington.[2]

         In a second Opinion, the Court considered the meaning of the term “emolument” as used in the Clauses. The Foreign Clause bans any person holding an office of profit or trust under the United States, (including, the Court found, the President) from accepting without Congressional approval “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.” U.S. Const. art. I, § 9, cl. 8. The Domestic Clause provides that “[t]he President shall… receive for his services, a compensation…and he shall not receive within that period any other emolument from the United States, or any of them.” U.S. Const. art. II, § 1, cl. 7. Based on those constitutional texts, as well as the virtually universal definition given the term “emolument” in dictionaries and literature contemporaneous to the enactment of the Clauses, the purpose of the Clauses, and ample historical evidence and executive branch precedent and practice, the Court determined that the word “emolument” refers to any “profit, ” “gain” or “advantage” of a more than de minimis nature.[3] Accordingly, the President's ownership interest in the Trump International Hotel and his apparent receipt of benefits from at least some foreign and state governments, as well as from the Federal Government itself, suggest that he has received “emoluments” in violation of the Constitution, giving rise to plausible causes of action against him brought by parties with standing.

         The President has filed a Motion for Leave to Appeal (Interlocutory) and for a Stay Pending Appeal the Court's rulings, ECF No. 127, which Plaintiffs oppose. As part of the relief he requests, the President asks the Court to stay any and all discovery pending his appeal, again over Plaintiffs' objection.

         The Court has reviewed the President's Motion and, for the reasons that follow, will DENY it. His Motion for a Stay pending any appeal will also be DENIED.

         II. Questions the President Seeks to Have Certified

         Pursuant to 28 U.S.C. § 1292(b), the President has identified four (4) purportedly controlling questions of law decided by the Court in its previous two opinions that he believes are certifiable: (1) the correct interpretation of the term “emolument” in the Emoluments Clauses of the Constitution and the scope of those Clauses; (2) whether Plaintiffs have asserted interests addressed by those Clauses and have an equitable cause of action under them; (3) whether Plaintiffs have Article III standing to pursue their claims; and (4) whether the Court has jurisdiction to issue declaratory and injunctive relief against the President. Def's Mot. for Appeal at 1.

         III. Statutory Standards

         a. In general

         28 U.S.C. § 1292(b) provides that when a district judge believes an order “[1] involves a controlling question of law [2] as to which there is substantial ground for difference of opinion [3] and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, ” the Judge may certify it for interlocutory appeal, “[p]rovided, however, That application… shall not stay proceedings” unless ordered by the district judge or appellate court.

         Although noting that the Fourth Circuit has cautioned that § 1292(b) should be used sparingly, the President argues that the “Supreme Court has explained that ‘district courts should not hesitate to certify an interlocutory appeal' when a decision ‘involves a new legal question or is of special consequence.'” Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 111 (2009). Indeed, the Seventh Circuit, says the President, has “emphasize[d] the duty of the district court… to allow an immediate appeal to be taken when the statutory criteria are met.” Ahrenholz v. Board of Trustees, 219 F.3d 674, 677 (7th Cir. 2000). For the purposes of § 1292(b), a “question of law” is “the meaning of a statutory or constitutional provision, regulation, or common law doctrine.” Lynn v. Monarch Recovery Mgmt, Inc., 953 F.Supp.2d 612, 623 (D. Md. 2013). Def's Mot. for Appeal at 6-7 (Aug. 17, 2018), ECF No. 127.

         Plaintiffs, for their part, cite the “general rule[ ]that ‘a party is entitled to a single appeal, to be deferred until final judgment has been entered, in which claims of district court error… may be ventilated.'” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996), and that the “‘narrow' exception” for interlocutory appeals under § 1292(b) “should stay that way and never be allowed to swallow the general rule, that a party is entitled to a single appeal.” Dig. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994). “[E]ven when the elements of section 1292(b) are satisfied, ” say Plaintiffs, “the district court retains ‘unfettered discretion' to deny certification.” Garber v. Office of the Comm'r of Baseball, 120 F.Supp.3d 334, 337 (S.D.N.Y. 2014). Plaintiffs say further that, consistent with interlocutory appeals remaining a narrow exception, “[c]ertification under section 1292(b) is improper if it is simply ‘to provide early review of difficult rulings in hard cases.'” Pls.' Resp. in Opp'n at 2-3 (Sept. 17, 2018), ECF No. 133 (quoting Butler v. DirectSAT USA, LLC, 307 F.R.D. 445, 452 (D. Md. 2015)).

         A district court's decision not to certify an interlocutory appeal is final and unreviewable. This is said to be so because a case must be certified to be considered by the Fourth Circuit; lack of certification therefore ordinarily precludes appellate court jurisdiction. In re Pisgah Contractors, Inc., 117 F.3d 133, 137 (4th Cir. 1997) (explaining that the Fourth Circuit did not have subject matter jurisdiction where the district court declined to certify an interlocutory order for appeal). Failing to meet even one of the statutory requirements will defeat a litigant's request for an interlocutory appeal. See, e.g., Cooke-Bates v. Bayer Corp., 2010 WL 4789838, at *2 n.4 (E.D. Va. Nov. 16, 2010) (denying interlocutory appeal, and not deciding whether issues presented were controlling questions of law that may advance the termination of the litigation, because a nevertheless novel question was not particularly difficult and therefore did not present substantial grounds for disagreement); Butler, 307 F.R.D. at 452 (“Unless all of the statutory criteria are satisfied . . . ‘the district court may not and should not certify its order . . . under section 1292(b).'”) (internal citation omitted).

         b. Controlling Questions of Law

         The President argues that the Fourth Circuit has recognized that “it may be proper to conduct an interlocutory review of an order presenting ‘a pure question of law,' i.e., ‘an abstract legal issue that the court of appeals can decide quickly and cleanly.'” Def's Mot. for Appeal at 7 (quoting United States ex rel. Michaels v. Agape Senior Cmty., Inc., 848 F.3d 330, 340 (4th Cir. 2017) (internal citation omitted)). Accordingly, the President cites cases to the effect that a question of law is “controlling” if its “resolution would be completely dispositive of the litigation, either as a legal or practical matter.” Butler, 307 F.R.D. at 452 (internal quotation omitted). A ruling can also be controlling if it “control[s] many aspects of the proceedings in substantial respects, particularly the scope of the discovery . . . .” In re Microsoft Corp. Antitrust Litigation, 274 F.Supp.2d 741, 742 (D. Md. 2003). In that event, the court noted that concerns bearing on the scope of discovery are particularly likely to be weighty when the case at hand, as occurred there, involves multi-district litigation where multiple competitor cases will be affected by the challenged order, as was the situation in In re Microsoft, id. at 742-43.

         Plaintiffs characterize a “controlling question of law” as “an issue that would, decided differently, terminate or substantially alter the suit.” Pls.' Resp. in Opp'n at 3. For instance, “controlling questions . . . determine whether there should be any future proceedings at all with respect to Plaintiffs' claims.” Moffett v. Comput. Scis. Corp., No. PJM 05-1547, 2010 WL 348701, at *2 (D. Md. Jan. 22, 2010). In his Reply, the President emphasizes that, although a question whose resolution may terminate the case is certainly one kind of controlling question, the standard for “controlling” questions “should be kept flexible, ” Johnson v. Burken, 930 F.2d 1202, 1206 (7th Cir. 1991), and should include questions that control significant aspects of the proceedings, including discovery. Def's Reply (Sept. 26, 2018), ECF No. 134 at 3 (quoting In re Microsoft Corp., 274 F.Supp.2d at 742). Finally, a “controlling question of law” has been said to include orders that “if erroneous, would be reversible error on final appeal.” Lynn, 953 F.Supp. at 623 (internal citation omitted).

         c. Substantial Ground for Difference of Opinion

         The second statutory requirement that must be present for a district court to certify an interlocutory appeal is that the relevant controlling question of law is one “as to which there is substantial ground for difference of opinion.” 28 U.S.C. § 1292(b).

         The President argues that “[c]ourts have repeatedly recognized” that a “‘novel issue' ‘on which fair-minded jurists might reach contradictory conclusions' ‘may be certified for interlocutory appeal without first awaiting development of contradictory precedent.'” Def's Mot. for Appeal at 10 (citing Reese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011); see also In re Trump, 874 F.3d 948, 952 (6th Cir. 2017) (quoting the same). “When a matter of first impression also had other grounds for difference of opinion . . ., district courts in this circuit have certified the issue for interlocutory appeal.” Goodman v. Archbishop Curley High Sch., Inc., 195 F.Supp.3d 767, 774 (D. Md. 2016) (quoting Kennedy v. Villa St. Catherine, Inc., No. PWG-09-3021 (WDQ), 2010 WL 9009364, at *2 (D. Md. June 16, 2010)). Moreover, the President points out, “[t]he level of uncertainty required to find a substantial ground for difference of opinion should be adjusted to meet the importance of the question in the context of the specific case.” Coal. For Equity & Excellence in Md. Higher Educ. v. Md. Higher Educ. Comm'n, No. CCB-06-2773, 2015 WL 4040425, at *6 (D. Md. June 29, 2015) (internal quotation omitted) (granting § 1292(b) certification in light of the “context of this extraordinarily important case”). The President believes that the present “case presents the extraordinary circumstance of allegations that a sitting President is violating the Constitution, ” and is now poised to be subject to “civil discovery in his official capacity.” The President believes that this fact alone “counsels extreme restraint and warrants § 1292(b) certification.” Def's Mot. for Appeal at 11.

         Plaintiffs argue that there is only “substantial ground for difference of opinion” for § 1292(b) certification purposes when there is “substantial doubt that the district court's order was correct.” Goodman, 195 F.Supp.3d at 774 (internal citations omitted). They insist that a party's “own disappointment or disagreement with the outcome of an order does not rise to the level of substantial doubt.” See Lizarbe v. Rondon, No. PJM 07-1809, 2009 WL 2487083, at *3 (D. Md. Aug. 12, 2009) (court found that where there was no contrary authority other than party's own disagreement with controlling case law, there was no substantial ground for difference of opinion). In the same vein, “[a]n issue presents a substantial ground for difference of opinion if courts, as opposed to parties, disagree on a controlling legal issue.” Goodman, 195 F.Supp.3d at 774 (internal quotation omitted); Pls.' Resp. in Opp'n at 4.

         Finally, the Court notes that the “mere presence of a disputed issue that is a question of first impression, standing alone, is insufficient to demonstrate a substantial ground for difference of opinion.” Lynn, 953 F.Supp.2d at 624 (quoting In re Flor, 79 F.3d 281, 284 (2d Cir.1996)). To be sure, however, questions of first impression have nevertheless been certified when they otherwise meet all statutory requirements for certification, novelty notwithstanding. Id. (quoting Kennedy, 2010 WL 9009364, at *2 (D. Md. June 16, 2010)).

         d. Likelihood of advancing the termination of the case

         The third and final statutory requirement for § 1292(b) certification purposes is that the controlling question of law as to which a substantial ground for difference of opinion exists is one where “an immediate appeal from the order may materially advance the ultimate termination of the litigation.” The President observes that the third and first statutory requirements for certification are interrelated. If an immediate appeal may materially advance the ultimate termination of the litigation, a question of law is necessarily “controlling” because it “could advance the litigation by ending it, ” Coal. For Equity & Excellence in Md. Higher Educ., 2015 WL 4040425, at *7, even if “other possible outcomes exist.” Kennedy, 2010 WL 9009364, at *4. The President further suggests that this third requirement is met where the appeal would “eliminate complex issues so as to simplify the trial, or []eliminate issues to make discovery easier and less costly.” Lynn, 953 F.Supp.2d at 626 (internal quotation omitted). Def's Mot. for Appeal at 7-8; see Pls.' Resp. in Opp'n at 4.

         The President submits that an interlocutory appeal of the four questions he raises is warranted because the resolution of any one of them in his favor would “either terminate this suit or at least substantially narrow the scope of this litigation, ” and because there is a “substantial ground for difference of opinion as to each” question. Def's Mot. for Appeal at 1-2. He believes this is particularly true with regard to his “view that to qualify as an ‘Emolument,' the benefit must be a ...


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