Dist. of Columbia v. Trump

• Decision Date: 14 May 2020
• Docket Number: No. 18-2488,18-2488
• Parties: DISTRICT OF COLUMBIA; State of Maryland, Plaintiffs – Appellees, v. Donald J. TRUMP, President of the United States of America, in his official capacity and in his individual capacity, Defendant – Appellant. Scholar Seth Barrett Tillman; Judicial Education Project, Amici Supporting Appellant, Former Government Ethics Officers; Don Fox ; Marilyn Glynn; Karen Kucik ; Lawrence D. Reynolds; Amy Comstock Rick; Trip Rothschild; Richard M. Thomas ; Harvey Wilcox; Leslie Wilcox, Amici Supporting Appellees, Administrative Law, Constitutional Law, and Federal Courts Scholars, Amicus Supporting Rehearing Petition.
• Court: U.S. Court of Appeals — Fourth Circuit

959 F.3d 126

DISTRICT OF COLUMBIA; State of Maryland, Plaintiffs – Appellees,

v. Donald J. TRUMP, President of the United States of America, in his official capacity and in his individual capacity, Defendant – Appellant.Scholar Seth Barrett Tillman; Judicial Education Project, Amici Supporting Appellant,Former Government Ethics Officers; Don Fox ; Marilyn Glynn; Karen Kucik ; Lawrence D. Reynolds; Amy Comstock Rick; Trip Rothschild; Richard M. Thomas ; Harvey Wilcox; Leslie Wilcox, Amici Supporting Appellees,Administrative Law, Constitutional Law, and Federal Courts Scholars, Amicus Supporting Rehearing Petition.

No. 18-2488

United States Court of Appeals, Fourth Circuit.

Argued: December 12, 2019

Decided: May 14, 2020

ON REHEARING EN BANC

DIANA GRIBBON MOTZ, Circuit Judge:

In June 2017, the District of Columbia and the State of Maryland ("Plaintiffs") brought suit against President Donald J. Trump in his official capacity, alleging violations of the Constitution’s Foreign and Domestic Emoluments Clauses. After the district court granted Plaintiffs’ motion to amend their complaint to add the President as a defendant in his individual capacity, the President in that capacity moved to dismiss the action against him, asserting absolute immunity. When approximately seven months passed and the district court had not yet acted on that motion, the President in his individual capacity filed this interlocutory appeal.

A panel of this court concluded that the district court had effectively denied immunity to the President in his individual capacity and that because of this effective denial, the panel had jurisdiction to consider the interlocutory appeal. "[E]xercising that jurisdiction," the panel held that Plaintiffs lacked Article III standing, and on that basis remanded the case to the district court with instructions to dismiss Plaintiffs’ complaint with prejudice. District of Columbia v. Trump , 930 F.3d 209, 211 (4th Cir. 2019). The full court then agreed to rehear the case en banc, vacating the panel opinion. District of Columbia v. Trump , 780 F. App'x 38 (4th Cir. 2019). We now dismiss this interlocutory appeal for lack of jurisdiction.

I.

When, on March 12, 2018, Plaintiffs amended their complaint to add as a defendant the President in his individual capacity, the lawsuit against the President in his official capacity was well underway.¹ The President in his official capacity had previously moved to dismiss the lawsuit on multiple grounds, and briefing on that motion was completed in December 2017. The district court held a full-day hearing on that motion in January 2018.

On March 28, 2018, the district court issued an opinion rejecting some of the bases for dismissal of the complaint advanced in the motion of the President in his official capacity. In that opinion, the district court recognized:

The President has indicated that he wishes to file a Motion to Dismiss with respect to Plaintiffs’ individual capacity claims. He will be permitted to do so. The Court will deal with the viability of the individual capacity claims in a subsequent Opinion and Order.

District of Columbia v. Trump , 291 F. Supp. 3d 725, 733 n.4 (D. Md. 2018) (citation omitted). More than a month later, in May, the President filed a motion to dismiss the individual capacity claims. Although some of the grounds for dismissal mirrored those asserted in defense in the official capacity suit, the President offered several additional bases for dismissal of the claims against him in his individual capacity, including absolute immunity.

The district court held a second hearing in mid-June on the President’s official capacity motion to dismiss. In late July, the district court issued a second opinion rejecting the remaining arguments for dismissal of the complaint urged in the President’s motion to dismiss in his official capacity. In that opinion, the court again acknowledged the President’s motion to dismiss in his individual capacity and explained:

The Court will address the individual capacity claims and the arguments to dismiss them in a separate Opinion. The present Opinion addresses only those arguments pertaining to the President’s official capacity as set forth in his Motion to Dismiss.

District of Columbia v. Trump , 315 F. Supp. 3d 875, 877 n.2 (D. Md. 2018).

In mid-August 2018, the President in his official capacity sought to certify an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Briefing closed on that motion in late September, and the district court issued an opinion denying certification in November 2018. Meanwhile, in a joint status report submitted to the district court in mid-August 2018, the President asked the court to resolve his motion to dismiss the suit against him in his individual capacity at the court’s "earliest possible convenience." The President’s individual capacity counsel specifically reserved all objections with respect to discovery "until after a decision is made on the motion to dismiss the claims against the President in his individual capacity."

On December 3, 2018, the district court approved a scheduling order for discovery with respect to the official capacity claims; the court issued no discovery order or any other order as to the individual capacity claims. Nonetheless, on December 14, 2018, the President, in his individual capacity, noted this interlocutory appeal.²

II.

With few exceptions, courts of appeals are vested with jurisdiction only over appeals from "final decisions of the district courts." 28 U.S.C. § 1291. Ordinarily, a denial of a motion to dismiss constitutes an interlocutory order that is not immediately appealable. See Cohen v. Beneficial Indus. Loan Corp. , 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). But when a district court denies a motion to dismiss on the ground that the President lacks absolute immunity, such a denial is immediately appealable under the collateral order doctrine. Nixon v. Fitzgerald , 457 U.S. 731, 742–43, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982) ; see also Mitchell v. Forsyth , 472 U.S. 511, 525, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

The issue before us is whether the district court has denied the President immunity in the absence of any order ruling on that question. The President recognizes that the district court has not actually issued such an order but claims that the district court has effectively denied him immunity. He maintains that (1) the district court’s delay in ruling on his motion to dismiss in his individual capacity constitutes an immediately appealable "sub silentio refusal" to rule; and (2) the district court’s scheduling order authorizing discovery for the official capacity claims has subjected the President, in his individual capacity, to litigation, violating his absolute immunity.

A district court’s actual refusal to rule on immunity is treated as a denial of immunity and is immediately appealable. In most cases in which courts have found a basis for appellate jurisdiction, the district court’s refusal to rule on immunity was an explicit one, indicating that its decision was final and it would adjudicate nothing else at that point in time. An implicit refusal to rule on an immunity question can also provide a basis for appellate jurisdiction. But the implicit refusal must, like an explicit one, be clear, establishing that the ruling is the court’s final determination in the matter. See, e.g. , Nero v. Mosby , 890 F.3d 106, 125 (4th Cir. 2018) ; Everson v. Leis , 556 F.3d 484, 490–93 (6th Cir. 2009) ; Jenkins v. Medford , 119 F.3d 1156, 1159 (4th Cir. 1997) (en banc); Workman v. Jordan , 958 F.2d 332, 335–36 (10th Cir. 1992) ; Smith v. Reagan , 841 F.2d 28, 30–31 (2d Cir. 1988) ; Craft v. Wipf , 810 F.2d 170, 173 (8th Cir. 1987) ; Helton v. Clements , 787 F.2d 1016, 1017 (5th Cir. 1986).³

The two cases from this court on which the President relies — Jenkins and Nero —illustrate this need for clarity in a denial of immunity. In Jenkins , the district court expressly and clearly refused to rule on the defendant’s qualified immunity claim. See 119 F.3d at 1159. In Nero , the district court implicitly refused to rule by denying a motion to dismiss without expressly addressing the defendant’s assertion of immunity. See 890 F.3d at 125. That implicit refusal was clear because the district court’s denial of the motion to dismiss inherently — and conclusively — denied her immunity.

When, however, it is clear that the district court does intend to rule on a motion asserting an immunity defense and has not unreasonably delayed in doing so, the lack of a ruling is neither an implicit nor effective denial of immunity. See, e.g. , Meza v. Livingston , 537 F.3d 364, 367 (5th Cir. 2008) ; Kimble v. Hoso , 439 F.3d 331, 333–36 (6th Cir. 2006) ; Way v. County of Ventura , 348 F.3d 808, 810 (9th Cir. 2003) ; Krein v. Norris , 250 F.3d 1184, 1188 (8th Cir. 2001).

Here, the district court neither expressly nor implicitly refused to rule on immunity. It did not make any rulings with respect to the President in his individual capacity.⁴ To the contrary, the district court stated in writing that it intended to rule on the President’s individual capacity motion. Despite the President’s suggestion, the district court’s deferral did not result in a delay "beyond reasonable limits."

Not even seven months had elapsed after the close of briefing on this question at the time the President noted this appeal. During these seven months, the district court, recognizing that the President in his individual capacity had moved to dismiss, again expressly stated in writing that it would address that motion. In these same seven months, in addition to managing all of the other cases on its docket, the district court managed the many aspects of this complex litigation against the President: the court held a second hearing on the President’s motion to dismiss in his official capacity, issued a second, thorough written opinion explaining its ruling, and also issued a...