United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
G. SULLIVAN UNITED STATES DISTRICT JUDGE
Court has issued two previous Opinions in this case. In its
September 28, 2018 Opinion, the Court held that plaintiffs,
approximately 201 Members of the 535 Members of the United
States Senate and House of Representatives, had standing to
sue defendant Donald J. Trump in his official capacity as
President of the United States (“the President”)
for alleged violations of the Foreign Emoluments Clause
(“the Clause”). See Blumenthal v. Trump,
335 F.Supp.3d 45, 72 (D.D.C. 2018). In its April 30, 2019
Opinion, the Court held that: (1) the term
“Emolument” is broadly defined as any profit,
gain, or advantage; (2) plaintiffs stated a plausible claim
against the President for violations of the Clause; (3)
plaintiffs have a cause of action to seek injunctive relief
to prevent the President's violations of the Clause; and
(4) the relief plaintiffs seek-an injunction against the
President-is constitutional. See Blumenthal v.
Trump, 373 F.Supp.3d 191, 207, 211, 212 (D.D.C. 2019).
before the Court are the President's motions for
certification for interlocutory appeal of the Court's
September 28, 2018 Order, ECF No. 60; and April 30, 2019 Order,
ECF No. 71-1. The President also moves to stay proceedings
while the Court considers the motions and pending appeal if
the Court grants them. Id. at 25. Upon careful
consideration of the President's motions, the oppositions
and replies thereto, and for the reasons explained below, the
Court DENIES the President's
District Court may certify an interlocutory order for
immediate appeal if the judge is “of the opinion that
such order involves  a controlling question of law  as
to which there is substantial ground for difference of
opinion and  that an immediate appeal from the order may
materially advance the ultimate termination of the
litigation.” 28 U.S.C. § 1292(b). Through section
1292(b), “Congress ... chose to confer on District
Courts first line discretion” and “circumscribed
authority to certify for immediate appeal interlocutory
orders deemed pivotal and debatable.” Swint v.
Chambers County Comm'n, 514 U.S. 35, 46, 47 (1995).
The availability of immediate appeal of interlocutory orders
subject to the requirements of section 1292(b) is an
“exception to the firm final judgment rule governing
federal courts.” Trout v. Garrett, 891 F.2d
332, 335 (D.C. Cir. 1989). Accordingly, a party seeking
certification pursuant to section 1292(b) must meet a high
standard to overcome the “strong congressional policy
against piecemeal reviews, and against obstructing or
impeding an ongoing judicial proceeding by interlocutory
appeals.” United States v. Nixon, 418 U.S.
683, 690 (1974). “Although courts have discretion to
certify an issue for interlocutory appeal, . . .
interlocutory appeals are rarely allowed [and] the movant
‘bears the burden of showing that exceptional
circumstances justify a departure from the basic policy of
postponing appellate review until after the entry of final
judgement.'” Virtual Def. and Dev. Int'l,
Inc. v. Republic of Moldova, 133 F.Supp.2d 9, 22 (D.D.C.
2001) (citing First Am. Corp. v. Al-Nahyan, 948
F.Supp. 1107 (D.D.C. 1996)). Finally, “[t]he moving
party bears the burden of establishing all three
elements” of the provisions of section 1292(b). U.S.
House of Representatives v. Burwell, No. 14-1967,
2015 WL 13699275, at *1 (D.D.C. Oct. 19, 2015) (citing
Nat'l Cmty. Reinvestment Coal. v. Accredited
Home Lenders Holding Co., 597 F.Supp.2d 120, 121 (D.D.C.
2009)); see also Butler v. DirectSat USA, LLC, 307
F.R.D. 445, 452 (“Unless all of the statutory
criteria are satisfied . . . ‘the district court may
not and should not certify its order . . . under section
1292(b).'”) (citing Ahrenholz v. Bd. of Trs. of
the Univ. of Ill., 219 F.3d 674, 676 (7th Cir.)).
President contends that the Court's Orders involve four
controlling questions of law: (1) whether plaintiffs have
standing to sue, Def.'s Statement of P. & A. in Supp.
of Mot. for Certification (“Def.'s Br.”) ECF
No. 60-1 at 8; (2) whether plaintiffs have an equitable
cause of action; (3) whether the Court can order the
declaratory and injunctive relief sought; and (4) the meaning
of the Clause, Def.'s Suppl. Br. in Supp. of His Mot.
(“Def.'s Suppl. Br.”), ECF No. 71-1 at 10.
bearing the burden of establishing all three elements of
section 1292(b), the President has made little effort to
demonstrate the third element-that “an immediate appeal
from the [Court's Orders] may materially advance the
ultimate termination of the litigation.” 28 U.S.C.
§ 1292(b). The President contends that this element is
met because there are substantial grounds for difference of
opinion as to whether plaintiffs have standing to sue and if
the Court was reversed on this issue, the case would be
terminated for lack of jurisdiction. Def.'s Br., ECF No.
60-1 at 23. The President also states that
“[r]esolution of either of the two threshold
justiciability questions [whether plaintiffs have standing to
sue and whether plaintiffs have an equitable cause of action]
in the President's favor would terminate this suit. And
if the Court of Appeals agrees with the President's
interpretation of the Foreign Emoluments Clause, the case
would be substantially narrowed, if not over.”
Def.'s Suppl. Br., ECF No. 71-1 at 7.
plaintiffs point out, if reversal by the Court of Appeals
were the standard for meeting this element of the section
1292(b) test, “every denial of a defendant's
dispositive motion would merit an interlocutory
appeal.” Pls.' Opp'n, ECF No. 61 at 12 (citing
Educ. Assistance Found. v. United States, No.
11-1573, 2014 WL 12780253, at *3 (D.D.C. Nov. 21, 2014)
(“Any immediate appeal under an interlocutory order
could affect the conduct of litigation and avoid
unnecessary litigation.”). Furthermore, the
President's “contention that certification of this
Court's Orders for interlocutory appeal will materially
advance this litigation necessarily assumes that [he] will
prevail on appeal.” Judicial Watch Inc. v.
Nat'l Energy Policy Dev. Group, 233 F.Supp.2d 16, 28
determine whether the third element has been met, the Court
considers whether an immediate appeal “would
likely and materially advance the ultimate
determination” of the litigation. Educ. Assistance
Found., 2014 WL 12780253, at *3 (quoting McKenzie v.
Kennickell, No. 73-0974, 1986 WL 32653, at *2 (D.D.C.
Oct. 27, 1986); see also Burwell, 2015 WL 13699275,
at *1 (noting that the third element was not satisfied where
the case could be “decided in a matter of months-likely
before an interlocutory appeal could even be decided”).
The Court also considers whether “[a]n immediate appeal
would conserve judicial resources and spare the parties from
possibly needless expense.” APCC Services Inc. v.
AT&T Corp., 297 F.Supp.2d 90, 100 (D.D.C. 2003).
the parties agree that all of the issues in this case can be
resolved on cross motions for summary judgment. See
Local Rule 16.3 Report, ECF No. 75 at 3. Plaintiffs have
proposed a three month time period for discovery commencing
June 28, 2019 and concluding September 27, 2019. Id.
at 6. The President states that “fact discovery should
not commence unless the Court denies the motion for
interlocutory appeal, ” id. at 7, and the
parties agree on a proposed briefing schedule that would be
complete within another three months, id. at 5.
parties agree, therefore, that discovery will conclude and
cross motions for summary judgment will be fully briefed
within six months. Once the cross motions are ripe, the Court
will be able to resolve them expeditiously thereby
terminating the case. In view of this abbreviated discovery
and briefing schedule, the President has not “carried
[his] burden of demonstrating that interlocutory appeal of
this question at this point in time would materially advance
the litigation as a whole.” Judicial Watch,
233 F.Supp.2d at 29. This discovery and briefing schedule
stands in stark contrast to cases in this district where
Courts have found the moving party to have met the burden of
establishing the third element of the section 1292(b) test.
For example, in Molock v. Whole Foods Market Group,
Judge Mehta observed that “[d]iscovery in this case, in
its present form, promises to be drawn out, complex, and
expensive” and that “[t]he potential time and
expense of obtaining such discovery is staggering.” 317
F.Supp.3d 1, at *7 (D.D.C. 2018). In APCC Services
Inc., Judge Huvelle found the third element of the
section 1292(b) test to be satisfied in protracted litigation
where discovery had been ongoing “more than four years
after the filing of the suit” and where the significant
costs of discovery were expected to “exceed any
possible damages award.” 297 F.Supp. at 100.
President asserts that “‘[w]hen there are
substantial grounds for difference of opinion as to a
court's subject matter jurisdiction, courts regularly
hold that immediate appeal may materially advance the
ultimate termination of the litigation.'”
Def.'s Br., ECF No. 60-1 at 23 (quoting Al Maqaleh v.
Gates, 620 F.Supp.2d 51, 55 (D.D.C. 2009)) (citing
APCC Services Inc., 297 F.Supp.2d at 109 and
Lemery v. Ford Motor Co., 244 F.Supp.2d 720, 728
(S.D. Tex. 2002)). This Court does not read the cited cases
to support such a broad proposition and finds the facts here
to be distinguishable. The Court has explained Judge
Huvelle's reasoning in APCC Services Inc. for
finding this element to have been satisfied supra,
and in Lemery, the Court found this element to be
satisfied with little analysis in a products liability case
where there would be protracted discovery at
“tremendous expense.” 244 F.Supp.2d at 728.
Neither situation is the case here. Furthermore, although in
each case, the question for certification involved a
jurisdictional issue, that was not the sole reason the Court
found this element to be satisfied and for granting the
President also argues that the cases plaintiffs cite in
support of their argument actually support his position
because each of the cases was in a late stage and
“certain to conclude in relatively short order through
a resolution of summary judgment motions or a brief
trial.” Def.'s Reply, ECF No. 62 at 5. The Court
disagrees that the cases provide support for the
President's position. Rather, these cases are more
similar to the situation here, where even though discovery
has not begun, it will be scheduled to conclude and cross
motions for summary judgment to be fully briefed within six
months. See Burwell, 2015 WL 13699275 at *1 (denying
motion for certification because “[u]nlike typical
civil litigation, where the denial of a motion to dismiss
would be followed by months or even years of discovery, this
case is presently suited for summary disposition, ”
which could be decided “in a matter of months”);
United States ex rel. Barko v. Halliburton Co., 4
F.Supp.3d 162, 167 (D.D.C. 2014) (denying motion for
certification in part because “[t]o pause litigation so
close to the end of discovery and so near the deadline for
summary judgment briefing would waste judicial
resources.”). While some of the cases cited were poised
for a quicker resolution than is the case here, see
Washington Tennis & Educ. Found., Inc. v. Clark
Nexsen, Inc., 324 F.Supp.3d, 128, 146 (D.D.C. 2018)
(“Once calendared, trial on Defendant's
counterclaim can be accomplished in less than a
week.”); Brown v. Pro Football Inc., 812
F.Supp. 237, 239 (D.D.C. 1992) (“Given that the trial
on damages is imminent, it is evident that it would not
expedite the ultimate termination of this litigation to delay
proceedings for an interlocutory appeal.”); Singh
v. George Washington Univ., 383 F.Supp.2d 99, 105
(D.D.C. 2005) (“With this litigation poised for a
relatively short, limited trial, it would not materially
advance the termination of the litigation to authorize a
piecemeal appeal.”), this case will be poised for
resolution within six months; an immediate appeal would
hardly materially advance its ultimate termination.
the President has failed to meet his burden of establishing
“that an immediate appeal from the order may materially
advance the ultimate termination of the litigation, ”
28 U.S.C. § 1292(b), the Court need not consider whether
the President has met his burden of establishing the other
two criteria for certifying an order for an immediate appeal.
See Educ. Assistance Found., 2014 WL 12780253, at *3
(“The plaintiff having failed to establish that the
Court's ruling on the admissibility of the subject
document presents a controlling question of law, and that an
interlocutory appeal would materially advance the litigation,
the Court need not consider whether there exists a
substantial ground for a difference of opinion regarding the
document's admissibility.”) (citing 28 U.S.C.
§ 1292(b) and Ahrenholz, 219 F.3d at 676
(“Unless all these criteria are satisfied, the
district court may not and should not certify its order to us
for an immediate appeal under section 1292(b).”);
Baylor v. Mitchell Rubenstein & Assocs., No.
13-1995, 2014 WL 12644263, at *2 (D.D.C. July 30, 2014)
(“But even if the Court were able to find that
substantial grounds for difference of opinion did exist, it
would nonetheless deny the motion for certification because
plaintiff has not demonstrated that this case satisfies
section 1292(b)'s third requirement: ‘that an
immediate appeal from the order may materially advance the
ultimate termination of the litigation.'”)
President argues that the exceptional circumstances of this
case make certification for interlocutory appeal appropriate.
See Def.'s Br., ECF No. 60-1 at 10-13. But
“even if the circumstances [are] truly extraordinary .
. . that would favor certification only if all the criteria
required by § 1292(b) are otherwise met.”
District of Columbia v. Trump, 344 F.Supp.3d 828,
842 (D. Md. 2018). As ...