USCA Case #19-5196

Document #1798164

Filed: 07/19/2019

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 19-5196

September Term, 2018
1:17-cv-01154-EGS
Filed On: July 19, 2019

In re: Donald J. Trump, in his official capacity
as President of the United States,
Petitioner
BEFORE:

Millett, Pillard, and Wilkins, Circuit Judges
ORDER

Upon consideration of the petition for writ of mandamus and motion for stay
pending disposition of the mandamus petition, the opposition thereto, the reply, and the
Rule 28(j) letter, it is
ORDERED that the petition for mandamus be denied without prejudice.
Although Petitioner has identified substantial questions concerning standing and the
cause of action, he has not shown a clear and indisputable right to dismissal of the
complaint in this case on either of those grounds. See Cheney v. United States Dist.
Court for D.C., 542 U.S. 367, 381 (2004); In re al-Nashiri, 791 F.3d 71, 78 (D.C. Cir.
2015).
Petitioner requests in the alternative a writ of mandamus directing the district
court to certify for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) its
September 28, 2018 and April 30, 2019 orders denying petitioner’s motion to dismiss.
This court is of the view that those orders squarely meet the criteria for certification
under Section 1292(b). Cf. In re Trump, No. 18-2486, 2019 WL 2997909, at *8 (4th Cir.
July 10, 2019). The question of whether the Foreign Emoluments Clause, U.S. CONST.
Art. I, § 9, cl. 8, or other authority gives rise to a cause of action against the President is
unsettled, and the standing question arises at the intersection of precedent. Compare
Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945 (2019), with Coleman v.
Miller, 307 U.S. 433 (1939). In addition, because either of those issues could be
dispositive of this case, it appears to this court that the district court abused its

 USCA Case #19-5196

Document #1798164

Filed: 07/19/2019

Page 2 of 2

discretion by concluding that an immediate appeal would not advance the ultimate
termination of the litigation just because discovery and summary judgment briefing
could proceed expeditiously. The district court did not adequately address whether—
given the separation of powers issues present in a lawsuit brought by members of the
Legislative Branch against the President of the United States—resolving the legal
questions and/or postponing discovery would be preferable, or whether discovery is
even necessary (or more limited discovery would suffice) to establish whether there is
an entitlement to declaratory and injunctive relief of the type sought by plaintiffs. See
Cheney, 542 U.S. at 391 (error to allow civil suit against the Vice President to proceed
“without even reaching the weighty separation of powers objections raised in the case”
about the scope of discovery); Clinton v. Jones, 520 U.S. 681, 707 (1997) (given
separation of powers concerns, avoiding unnecessary burdens on the President “is a
matter that should inform the conduct of the entire proceeding, including the timing and
scope of discovery[]”). In an inter-branch dispute like this, those important and open
threshold questions of pure law are best resolved conclusively through an expedited
interlocutory appeal with focused briefing and oral argument, rather than tentatively
through the demanding lens of the mandamus requirement of clear and indisputable
error.
The question of whether a court of appeals has jurisdiction to issue a writ of
mandamus to order a district court to certify an issue for interlocutory appeal pursuant to
28 U.S.C. § 1292(b) has divided the courts of appeals. Compare, e.g., In re Trump,
2019 WL 2997909, at *8–9, with In re Ford Motor Co., 344 F.3d 648, 653–55 (7th Cir.
2003) (collecting cases). We need not wade into that dispute at this time. We instead
exercise our discretion to deny the writ, without prejudice, and remand the matter to the
district court for immediate reconsideration of the motion to certify and the motion to
stay the proceedings. It is
FURTHER ORDERED that the motion for stay pending resolution of the petition
for mandamus be dismissed as moot.
This panel will retain jurisdiction only over the decision whether to grant any
petition for permission to appeal, should the district court grant certification pursuant to
28 U.S.C. § 1292(b) upon remand, or any subsequent petition for writ of mandamus,
should the district court deny certification upon remand.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY:

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/s/
Amanda Himes
Deputy Clerk