Appellate Decisions

Appellate Jurisdiction in the Fourth Circuit’s Emoluments Appeals

The Fourth Circuit took the extraordinary (and possibly improper) step of directing a district court—via a writ of mandamus—to certify a § 1292(b) appeal in an emoluments case.

July 10, 2019

By Bryan Lammon

The Fourth Circuit took the extraordinary (and possibly improper) step today of directing a district court—via a writ of mandamus—to certify an issue for immediate appeal under 28 U.S.C. § 1292(b). It did so in one of two interlocutory appeals in Maryland and the District of Columbia’s emoluments-clause suit against Donald Trump. In both, the Fourth Circuit held that Maryland and D.C. lacked standing to bring their claims. And in both, the court had to address its jurisdiction over the appeals.

One appeal (PDF, 39 KB) involved a relatively straightforward collateral-order appeal from the effective denial of absolute immunity. But to hear the other appeal (PDF, 106 KB), the Fourth Circuit had to use mandamus to direct the district court to certify an immediate appeal. This use of mandamus is extremely rare, and it’s not clear that it’s is a proper use of the writ.

The Emoluments Appeal

The District Court Proceedings

Maryland and D.C. sued Trump claiming that his continued interest in the Trump Organization violates the foreign and domestic emoluments clauses. (For background on this and other emoluments suits, see Take Care’s coverage.) They asserted claims against Trump in both his official and individual capacities, and Trump moved to dismiss the claims. The district court denied the motion to dismiss the official-capacity claims. And it declined to rule on the motion to dismiss the individual-capacity claims. The case was set to proceed to discovery.

Trump asked the district court to certify its decision on the official-capacity claims for an immediate appeal under § 1292(b). That provision allows a district court to certify for immediate appeal an order that contains a controlling question of law on which there is substantial ground for disagreement, the immediate appeal of which would advance resolution of the litigation. If the district court so certifies, the court of appeals then has discretion to allow the immediate appeal. But the district court in the emoluments suit refused to certify its decision for an immediate appeal.

Trump then sought to appellate review of both the official- and individual-capacity claims. For the official-capacity claims, he asked the Fourth Circuit to issue a writ of mandamus requiring the district court to certify its decision under § 1292(b). (He alternatively asked the court to directly review the dismissal decision via mandamus.) As for the individual-capacity claims, Trump sought to appeal under the collateral-order doctrine, arguing that the district court’s refusing to rule on his motion to dismiss effectively denied his claim of immunity.

The Individual-Capacity Claims, Absolute Immunity & the Collateral-Order Doctrine

Let’s start with the individual-capacity, absolute-immunity appeal. The denial of absolute immunity can be immediately appealed under the collateral-order doctrine. Absolute immunity, the reasoning goes, provides not just an immunity from liability. It also protects officials from the burdens, expense, and uncertainty of litigation. Protection from those latter costs is of substantial public importance, and it’s lost if a case is erroneously allowed to proceed to discovery. So effectively reviewing the denial of absolute immunity requires an immediate appeal.

The twist in the emoluments case was that the district court had not denied Trump’s claim of absolute immunity; it had deferred ruling on it.

The Fourth Circuit nevertheless held that it had jurisdiction over the appeal. It noted that “a formal order denying immunity is not a prerequisite to an immediate interlocutory appeal.” When a district court declines to rule on a claim of immunity and instead orders that discovery proceed, that can amount to the effective denial of the immunity. (This happens occasionally in the context of qualified-immunity appeals.) That’s what happened here. And the effective denial of immunity is just as appealable as its actual denial.

One additional wrinkle: Maryland and D.C. had purported to voluntarily dismiss their individual-capacity claims in the district court after Trump filed his notice of appeal. They then argued that the appeal was moot, as they had abandoned their claims.

The Fourth Circuit disagreed, holding that the district court lost jurisdiction over the case after the notice of appeal was filed. It accordingly rejected the argument that the appeal was moot.

The Official-Capacity Claims, Mandamus & § 1292(b)

Appeal of the official-capacity claims was more complicated. Trump could not invoke absolute immunity for these claims, and denial of a motion to dismiss them is not an immediately appealable order. As mentioned above, Trump sought a certified appeal under § 1292(b). When the district court denied certification, Trump sought a writ of mandamus from the Fourth Circuit, asking it to order the district court to certify the dismissal decision for an immediate appeal.

A district court normally has wide discretion in deciding whether to certify an order for an immediate appeal under § 1292(b). And the courts of appeals are stingy with writs of mandamus.

But that didn’t stop the Fourth Circuit. It said that a district court’s refusal to certify a § 1292(b) appeal must rest on “sound legal principles”—not the “whim” of the district court. It also noted that district courts have a “duty” to certify when § 1292(b)’s criteria are satisfied.

Here, the Fourth Circuit concluded that the district court had violated that duty. The case was an “extraordinary” one—one of “national significance” and “special consequence.” Pointing to another emoluments suit that was dismissed for lack of standing, the court also thought that the issue was one on which a difference of opinion existed. And immediate reversal would “materially advance the litigation”—it would end it.

The Fourth Circuit ultimately concluded that this was “a paradigmatic case for certification under § 1292(b) and that the district court’s reasons for not certifying its orders were not ‘guided by sound legal principles.’” Since mandamus was the only vehicle for correcting what the court thought was such a clear error, it granted the petition. But rather than go through the steps of remanding for the district court to actually certify the order, the Fourth Circuit deemed it certified and granted permission for Trump to appeal, thus giving the court appellate jurisdiction under § 1292(b)

Maryland & D.C.’s Standing

On the merits of the appeals, the Fourth Circuit held that neither plaintiff had Article III standing to bring this suit. I’m no expert on Article III standing, and I leave the issue to those who are.

Analysis

Mandamus & § 1292(b)

The Fourth Circuit’s mandamus decision is extraordinary. I’m aware of only a few instances when courts have used mandamus to force a district court’s certification under § 1292(b). And it’s not clear that doing so is a proper use of the writ. Some courts have suggested that it’s not. And the commentary is divided. Cassandra Burke Robertson has argued that mandamus should be used to review denials of § 1292(b) certification in the context of discovery orders,¹ and a comment by MacKenzie Horton has argued for this use of mandamus more broadly.² Federal Practice & Procedure, however, argues against mandamus review of orders denying § 1292(b) certification:

Although a court of appeals may be tempted to assert mandamus power to compel certification, the temptation should be resisted. The district judge is given authority by the statute to defeat any opportunity for appeal by certification, in deference to familiarity with the case and the needs of case management. Special needs for review should be met by other means. Amendment of the statute to permit application to the court of appeals after refusal by the district court might be a wise reform if undertaken by Congress, but not by the courts.³

I haven’t thought about this issue enough to have a definitive opinion, but I think I side with Federal Practice & Procedure. I view § 1292(b) appeals as instances in which the district and appellate courts agree on the propriety of an appeal. Using mandamus to require a district court to certify an appeal isn’t a case of agreement; the district and appellate courts squarely disagree. Use of mandamus in this context thus seems to create an avenue for interlocutory appeals solely at the discretion of the appellate court. Appeals at the sole discretion of the court of appeals aren’t necessarily a bad thing; I’ve suggested that some amount of discretionary appeals might be a necessary part of appellate jurisdiction reform. But it’s not how § 1292(b) is supposed to work.

This isn’t to say that the outcome in the emoluments case would have been different had the Fourth Circuit not ordered certification of the appeal. Trump also sought a writ of mandamus to directly reverse the denial of his motion to dismiss. Who knows if the court would have granted that writ had it not reversed the district court’s denial of the § 1292(b) certification.

The Potential Effect on § 1292(b)

The decision also provides some grist for future litigants seeking certification under § 1292(b). I see at least two points lawyers might try to invoke in other cases.

First, language in the Fourth Circuit’s opinion appears to cabin the district court’s discretion to certify an appeal under § 1292(b). The Fourth Circuit noted that district courts have a “duty” to certify when the statutory requirements are satisfied. Future litigants might harp on this point when urging courts to certify orders for an immediate appeal.

Second, the opinion lets lawyers know that mandamus is now a possibility when the district court denies their request for certification. Granted, the Fourth Circuit tried to cabin the decision’s effect. It ended its jurisdictional analysis by noting that mandamus to reverse the district court’s refusal to certify a § 1292(b) appeal “should be rare and occur only when a clear abuse of discretion occurs.” And it acknowledged that “[t]he proper operation of § 1292(b) . . . occurs only when both the district court and the court of appeals exercise their independently assigned discretion.” But I won’t be shocked when someone tries this again.