Dist. of Columbia v. Trump

344 F.Supp.3d 828

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.

Civil No. PJM 17-1596

United States District Court, D. Maryland.

Signed November 2, 2018

Loren L. AliKhan, Pro Hac Vice, Stephanie E. Litos, Pro Hac Vice, Natalie O. Ludaway, Office of Attorney General for the District of Columbia, Christine Elizabeth Webber, Pro Hac Vice, Daniel A. Small, Joseph M. Sellers, Cohen Milstein Sellers & Toll PLLC, Deepak Gupta, Pro Hac Vice, Jonathan Taylor, Gupta Wessler PLLC, Laura C. Beckerman, Pro Hac Vice, Noah D. Bookbinder, Pro Hac Vice, Stuart C. McPhail, Pro Hac Vice, Norman L. Eisen, Citizens for Responsibility and Ethics in Washington, Washington, DC, Leah J. Tulin, Steven M. Sullivan, Office of the Attorney General of Maryland, Patrick Hughes, Baltimore, MD, for Plaintiffs.

Jean Lin, Brett Shumate, US Department of Justice, James R. Powers, U.S. Department of Justice, Civil Division, Federal Programs Branch, Washington, DC, William S. Consovoy, Consovoy McCarthy Park PLLC, Arlington, VA, for 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, 130 S.Ct. 599, 175 L.Ed.2d 458 (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, 116 S.Ct. 1712, 135 L.Ed.2d 1 (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, 114 S.Ct. 1992, 128 L.Ed.2d 842 (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...