United States District Court, D. Maryland
THEODORE D. CHUANG UNITED STATES DISTRICT JUDGE.
2, 2019, the Court issued a Memorandum Opinion and Order
granting in part and denying in part a Motion to Dismiss
filed by Defendants ("the Government") in these
three cases. As relevant here, the Court denied the Motion to
Dismiss as to Plaintiffs' claims that Proclamation No.
9645, Enhancing Vetting Capabilities and Processes for
Detecting Attempted Entry into the United States by
Terrorists or Other Public Safety Threats (the
"Proclamation"), 82 Fed. Reg. 45, 161 (Sept. 27,
2017), violated their rights under the Establishment Clause,
free speech, and freedom of association components of the
First Amendment to the United States Constitution, and the
due process and equal protection components of the Fifth
Amendment to the Constitution (collectively, the
"Constitutional Claims"). On June 20, 2019, the
Government filed a Motion for Certification of this
Court's Opinion for Interlocutory Appeal and for a Stay
of Discovery, pursuant to 28 U.S.C. S 1292(b), requesting
that the Court certify its May 2, 2019 Memorandum Opinion and
Order for an interlocutory appeal and stay discovery in all
three cases until the resolution of the appeal. Upon review
of the submitted materials, the Court finds that no hearing
is necessary. See D. Md. Local R. 105.6. For the
reasons set forth below, the Motion is GRANTED IN PART and
DENIED IN PART.
district court may certify for appeal an order that is not
otherwise appealable if it concludes (1) that the order
involves a controlling question of law; (2) as to which there
is substantial ground for difference of opinion; and (3) that
an immediate appeal from the order may materially advance the
ultimate termination of the litigation. 28 U.S.C. S 1292(b)
(2012). Piecemeal interlocutory appeals should be
"avoided" because review of non-final judgments is
"effectively and more efficiently reviewed together in
one appeal" at the end of litigation. James v.
Jacobson, 6 F.3d 233, 237(4th Cir. 1993).
Since certification under § 1292(b) should be granted
"sparingly," the statute's requirements must be
"strictly construed." United States ex rel.
Michaels v. Agape Senior Cmty., Inc.,
848 F.3d 330, 340 (4th Cir. 2017) (quoting Myles v.
Laffitte, 881 F.2d 125, 127 (4th Cir. 1989)).
United States Court of Appeals for the Fourth Circuit has
defined a controlling question of law to be a "pure
question of law," that is, "an abstract legal issue
that the court of appeals can decide quickly and
cleanly." Id. (quoting Mamani v.
Berzain, 825 F.3d 1304, 1312 (11th Cir. 2016)). A pure
question of law does not require the appellate court "to
delve beyond the surface of the record in order to determine
the facts." Id. at 341 (quoting McFarlin v.
Conseco Servs., LLC, 381 F.3d 1251, 1259 (11th Cir.
2004)). In contrast, a question is not a controlling question
of law where the appellate court is asked to consider
"whether the district court properly applied settled law
to the facts or evidence of a particular case."
Id. (quoting McFarlin, 381 F.3d at 1259).
In Agape, the Fourth Circuit held that whether the
Attorney General has "absolute veto power over voluntary
settlements in" qui tarn actions under the
False Claims Act was "(s]uch a pure question of
law," but, in contrast, whether statistical sampling was
a permissible means of proving the plaintiffs claims
"based on the particular facts and evidence in this
case" was not a pure question of law "subject to
... interlocutory review." Id. at 336, 339,
"controlling law is unclear," there may be
substantial grounds for difference of opinion for purposes of
S 1292(b). Couch v. Telescope Inc., 611 F.3d 629,
633 (9th Cir. 2010). Therefore, courts find substantial
grounds "where the circuits are in dispute on the
question and the court of appeals of the circuit has not
spoken on the point, if complicated questions arise under
foreign law, or if novel and difficult questions of first
impression are presented." Id. However, the
"mere presence of a disputed issue that is a question of
first impression, standing alone, is insufficient."
In re Flor, 79 F.3d 281, 284 (2d Cir. 1996). Lack of
unanimity among courts, North Carolina ex rel. Howes v.
W.R. Peele, Sr. Trust, 889 F.Supp. 849, 852 (E.D. N.C.
1995), and a lack of relevant authority, Union County v.
Piper Jaffray & Co., Inc., 525 F.3d 643, 647 (8th
Cir. 2008), do not suffice. Similarly, a party's
disagreement with the decision of the district court, no
matter how strong, does not create substantial grounds.
Couch, 611 F.3d at 633.
the material-advancement prong, certification of an
interlocutory appeal is appropriate only "in exceptional
situations in which doing so would avoid protracted and
expensive litigation." Fannin v. CSX Tramp.,
Inc., 873 F.2d 1438, 1989 WL 42583, at *2 (4th Cir.
1989) (quoting In re Cement Antitrust Litig., 673
F.2d 1020, 1026 (9th Cir. 1982)); see Reese v. BP
Exploration (Alaska) Inc., 643 F.3d 681, 688 (9th Cir.
2011) (holding that an interlocutory appeal would materially
advance resolution of litigation where reversal by the
appellate court would dismiss one defendant and resolve
multiple claims against all defendants, even though it would
not resolve the entire case).
recent decision in In re Trump, 928 F.3d 360 (4th
Cir. 2019), the Fourth Circuit stated that
'"district courts should not hesitate to certify an
interlocutory appeal' under S 1292(b) when a decision
'involves a new legal question or is of
special consequence.'" Id. at 369 (quoting
Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 111
(2009)). In concluding that certification was warranted, the
court highlighted that the district court was the "first
ever to permit a party to pursue relief under the Emoluments
Clauses," that at least one other district court had
disagreed with its reasoning, and that the case presented
"novel and difficult constitutional questions,"
"has national significance," and "could result
in an unnecessary intrusion into the duties and affairs of a
sitting president." Id. at 368-70.
Government asks the Court to certify its May 2, 2019 Order
granting in part and denying in part the Government's
Motion to Dismiss the complaints in all three cases.
Specifically, the Government requests certification of
whether (1) the claim that the Proclamation violates the
First and Fifth Amendmenss should be evaluated under the
standard articulated in Kleindienst v. Mandel, 408
U.S. 753 (1972), or under rational basis review, as the
United States Supreme Court did in Trump v. Hawaii,
138 S.Ct. 2392 (2018); (2) the Supreme Court in
Hawaii held that the Proclamation satisfies rational
basis review as a matter of law such that any constitutional
challenge to the Proclamation is foreclosed; (3) the
Plaintiffs in all three cases have adequately stated a claim
that the Proclamation satisfies rational basis review; and
(4) Plaintiffs have cognizable legal interests for the
purposes of their due process, Establishment Clause, and
equal protection claims.
Court doubts that the issues identified by the Government
constitute controlling questions of law as to which there is
substantial ground for difference of opinion. Regarding
whether the Mandel or rational basis standard
applies to constitutional challenges to the Proclamation, the
Supreme Court resolved this question in Hawaii by
analyzing the Establishment Clause challenge to the
Proclamation under the rational basis standard. See
Hawaii, 138 S.Ct. at 2420. Thus, unlike in In re
Trump, where the interpretation of the Emoluments Clause
was a "novel and difficult" matter of first
impression, In re Trump, 928 F.3d at 369, here, the
Supreme Court has already considered and ruled on this issue.
Notably, courts that have been asked to consider the
applicable standard since Hawaii have read that
opinion as calling for rational basis review of
constitutional claims challenging the Proclamation, see,
e.g., Arab Am. Civil Rights League v. Trump, No.
17-10310, 2019 WL 3003455, at *8 (E.D. Mich. July 10, 2019);
Alharbi v. Miller, 368 F.Supp.3d 527, 562 (E.D.N.Y.
2019), such that there is likely not "substantial ground
for difference of opinion," 28 U.S.C. S 1292(b). The
Court is equally unpersuaded that whether Plaintiffs have
adequately stated a claim is a controlling question of law,
because evaluating that question, like the statistical
sampling ruling in Agape, amounts to asking the
Fourth Circuit to considered "whether the district court
properly applied settled law to the facts or evidence of a
particular case." Agape, 848 F.3d at 341.
the question whether the Supreme Court has conclusively
stated that the Proclamation satisfies rational basis review
as a matter of law, this Court concluded in its ruling on the
Motion to Dismiss that because rational basis analysis is
usually a fact-intensive inquiry made after a full
consideration of the factual record, the Supreme Court's
conclusion was not determinative because it was based on the
incomplete and different record before it on a motion for a
preliminary injunction in another case, rather than the full
record yet to be developed in the present case. See,
e.g., Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
442-44 (1985) (considering rational basis review on a
complete factual record). Even if this issue were deemed a
"pure question of law" rather than the application
of law to "the facts or evidence of a particular
case," Agape, 848 F.3d at 340-41, there is no
disagreement among circuits on this issue to date. See
Couch, 611 F.3d at 633. The presence of other district
courts' disagreement with this Court's analysis,
see Alharbi, 368 F.Supp.3d at 565; Emami v.
Nielsen, 365 F.Supp.3d 1009, 1022-23 (N.D. Cal. 2019),
does not necessarily constitute substantial grounds for
disagreement. See Couch, 611 F.3d at 633; W.R.
Peele, Sr. Tr., 889 F.Supp.at 852.
as for the question whether Plaintiffs have asserted
cognizable legal interests for purposes of some of their
Constitutional Claims, the question whether they have such an
interest for purposes of an Establishment Clause claim has
effectively already been presented to and decided favorably
by the Supreme Court and Fourth Circuit when both courts
found that Plaintiffs had standing to assert that claim.
See Hawaii, 138 S.Ct. at 2416 (holding that "a
person's interest in being united with his relatives is
sufficiently concrete and particularized to form the basis of
an Article III injury in fact" for the purposes of an
Establishment Clause claim); Int'l Refugee Assistance
Project v. Trump ("IRAP"),883 F.3d 222, 288,
260 (4th Cir. 2018) (stating that "the same injury can
provide Plaintiffs with standing for multiple claims"
and finding that plaintiffs demonstrated a cognizable injury
in "experiencing prolonged separation from close family
members who have been rendered categorically ineligible for
visas"), judgment vacated,138 S.Ct. 2710
(2018). On the question whether a United States citizen has a
cognizable liberty interest in reunification with family
members for purposes of a due process claim, one circuit has
accepted this Court's position, Bustamante v.
Mukasey,531 F.3d 1059, 1062 (9th Cir. 2008); see
also IRAP, 883 F.3d at 332 (Wynn, J., concurring), other
circuits have assumed the existence of such a right,
Yafai v. Pompeo,912 F.3d 1018, 1021 (7th Cir.
2019); Ali v. United States,849 F.3d ...