Jurisdictional Chicken In The D.C. Circuit’s Emoluments Appeal

Update, September 4, 2019: Back before the district court, the court certified its decisions for an immediate appeal under § 1292(b). Trump then petitioned to appeal, and on September 4, 2019, the D.C. Circuit granted the petition.

In the emoluments suit brought by members of Congress, the D.C. Circuit tried to avoid weighing in on whether it can order a district court—via a writ of mandamus—to certify an order for immediate appeal under 28 U.S.C. § 1292(b). But it effectively did so; the court of appeals said that the district court was wrong to deny certification, and it “remand[ed] the matter to the district court for immediate reconsideration.” The panel appears to hope that the district court will certify the decision for an immediate appeal and thus avoid any dispute over the appellate court’s mandamus power. It’s essentially a game of appellate-jurisdiction chicken.

The case was another emoluments suit against Donald Trump, this one brought by members of Congress. The district court denied Trump’s motions to dismiss and then denied Trump’s request to certify those decisions for an immediate appeal under § 1292(b). Trump then sought a writ of mandamus from the D.C. Circuit, asking the court to either reverse the denial of the motions to dismiss or direct the district court to certify the decisions for an immediate appeal.

“Denying” Mandamus

The D.C. Circuit denied mandamus on the merits of the motions to dismiss; Trump had not shown the clear and indisputable right to dismissal that was required to issue the writ.

The court then denied mandamus—or at least said it was denying mandamus—on the § 1292(b) certification. But it also said that the district court was wrong to deny certification. According to the D.C. Circuit, the district court’s denial of the motions to dismiss “squarely [met] the criteria for certification under Section 1292(b).” The courts of appeals are divided, however, on whether mandamus can issue to reverse the denial of § 1292(b) certification. (Recall that the Fourth Circuit recently used mandamus to do so in another emoluments case.) Rather than weigh in on the issue, the D.C. Circuit denied mandamus without prejudice and purported to “remand the matter to the district court for immediate reconsideration of the motion to certify.”

So the D.C. Circuit said it was denying the petition for mandamus. But it also said that the district court was wrong in refusing to certify the decision for a § 1292(b) appeal and told the district court to re-examine that decision.

What now?

I see a few issues here. First, it’s not clear what the court is “remanding.” Mandamus is an original proceeding in the court of appeals, and once it’s denied that proceeding ends.

More fundamentally, we now have a game of jurisdictional chicken, and we’ll see who blinks first. Will the district court take the hint and certify its decisions for an immediate appeal? Or will it again refuse, requiring the D.C. Circuit to hear another petition for mandamus (the panel retained jurisdiction to hear a subsequent petition should the district court again deny certification)? And if Trump files a second mandamus petition, will the D.C. Circuit side with the Fourth Circuit and use the writ to reverse the denial of § 1292(b) certification?

Stay tuned.

I couldn’t find the D.C. Circuit’s order on its website, but it’s available here (PDF, 157 KB). Credit to @ZoeTillman for the link.