Dist. of Columbia v. Trump, 18-2488

• Decision Date: 10 July 2019
• Docket Number: No. 18-2488,18-2488
• Citation: 930 F.3d 209
• Parties: DISTRICT OF COLUMBIA; State of Maryland, Plaintiffs - Appellees, v. Donald J. TRUMP, President of the United States of America, 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.
• Court: U.S. Court of Appeals — Fourth Circuit

930 F.3d 209

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

v. Donald J. TRUMP, President of the United States of America, 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.

No. 18-2488

United States Court of Appeals, Fourth Circuit.

Argued: March 19, 2019

Decided: July 10, 2019

ARGUED: William S. Consovoy, CONSOVOY MCCARTHY PARK PLLC, Arlington, Virginia, for Appellant. Leah J. Tulin, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: Patrick Strawbridge, Boston, Massachusetts, Thomas R. McCarthy, Bryan K. Weir, Cameron T. Norris, CONSOVOY MCCARTHY PARK PLLC, Arlington, Virginia, for Appellant. Brian E. Frosh, Attorney General, Steven M. Sullivan, Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland; Karl A. Racine, Attorney General, Loren L. AliKhan, Solicitor General, Stephanie E. Litos, Assistant Deputy Attorney General, Civil Litigation Division, OFFICE OF THE ATTORNEY GENERAL OF THE DISTRICT OF COLUMBIA, Washington, D.C.; Noah Bookbinder, Laura C. Beckerman, Nikhel S. Sus, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Washington, D.C.; Deepak Gupta, Joshua Matz, Daniel Townsend, GUPTA WESSLER PLLC, Washington, D.C.; Joseph M. Sellers, Christine E. Webber, COHEN MILSTEIN SELLERS & TOLL PLLC, Washington, D.C., for Appellees. Carrie Severino, JUDICIAL EDUCATION PROJECT, Washington, D.C., for Amicus Judicial Education Project. Robert W. Ray, THOMPSON & KNIGHT LLP, New York, New York; Josh Blackman, Houston, Texas, for Amicus Scholar Seth Barrett Tillman. Jan I. Berlage, GOHN HANKEY & BERLAGE LLP, Baltimore, Maryland, for Amici Scholar Seth Barrett Tillman and The Judicial Education Project. Tejinder Singh, GOLDSTEIN & RUSSELL, P.C., Bethesda, Maryland, for Amici Former Government Ethics Officials, Don Fox, Marilyn Glynn, Karen Kucik, Lawrence D. Reynolds, Amy Comstock Rick, Trip Rothschild, Richard M. Thomas, Harvey Wilcox, and Leslie Wilcox.

Before NIEMEYER and QUATTLEBAUM, Circuit Judges, and SHEDD, Senior Circuit Judge.

Remanded with instructions by published opinion. Judge Niemeyer wrote the opinion, in which Judge Quattlebaum and Senior Judge Shedd joined.

NIEMEYER, Circuit Judge:

The District of Columbia and the State of Maryland commenced this action against Donald J. Trump in his official capacity as President of the United States and in his individual capacity, alleging that he violated the Foreign and Domestic Emoluments Clauses of the U.S. Constitution. This action is the same as that which we address in appeal No. 18-2486, also decided today, and is governed by the same complaint. In No. 18-2486, we address the President’s motion to dismiss filed in his official capacity , which is presented to us through the President’s petition for a writ of mandamus. And here, we address the President’s motion filed in his individual capacity , which raises the additional issue of whether the President has absolute immunity and which is presented to us by appeal.

As described in more detail in appeal No. 18-2486, the district court treated the President’s motion to dismiss filed in his official capacity with multiple opinions, but it never ruled on the President’s motion filed in his individual capacity and thus never addressed his claim of absolute immunity. Rather than ruling, the court, by order dated December 3, 2018, directed the parties to proceed with discovery. The President has thus noticed this appeal from "the District Court’s effective denial of his motion to dismiss."

Because there was no decision expressly denying immunity, the District and Maryland filed a motion in this court to dismiss the appeal, contending that there is "no basis for appellate jurisdiction." In addition, because they filed a notice of voluntary dismissal of their claim against the President in his individual capacity in the district court after this appeal was docketed, they argue that this appeal is moot. The President contends, however, that the district court’s inaction on his motion, coupled with its order to proceed with discovery, had the effect of denying his claim of immunity and thus giving him the right to appeal immediately. He also contends that the District and Maryland’s purported dismissal in the district court was ineffective because jurisdiction had already transferred to this court with his notice of appeal. We deferred ruling on the District and Maryland’s motion to dismiss the appeal pending oral argument.

For the reasons that follow, we now conclude that we have jurisdiction over the appeal with respect to the President’s claim of immunity and, exercising that jurisdiction, hold that, as a threshold matter, the District and Maryland do not have standing under Article III to pursue the claims against the President in his individual capacity. Based on our ruling here and our ruling in appeal No. 18-2486, we remand with instructions to dismiss the complaint with prejudice.

I

The District and Maryland’s complaint alleges that the President’s continued interest in the Trump Organization — specifically in hotels and related properties — results in him receiving "emoluments" from various government entities and officials, both foreign and domestic, and that such receipts violate the Foreign and Domestic Emoluments Clauses of the U.S. Constitution. The complaint sues the President both in his official capacity and his individual capacity. The President filed motions to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), contending that the District and Maryland lacked standing and that they had failed to state a claim under the Emoluments Clauses. Also, with respect to the claims against him in his individual capacity, the President claimed absolute immunity.

The district court addressed the President’s motions in piecemeal fashion. By an opinion and order dated March 28, 2018, it rejected the President’s challenge to the District and Maryland’s standing insofar as the claims were made in connection with the Trump International Hotel and its appurtenances in Washington, D.C. Then, by a separate opinion and order dated July 25, 2018, the court ruled on the meaning of the term "emolument" and concluded that the various benefits alleged in the complaint qualified as "emoluments" under the Emoluments Clauses. The court, however, deferred ruling on the President’s motion to dismiss the claims against him in his individual capacity, thus declining to address the President’s assertion of absolute immunity. The court also directed the parties to submit a discovery plan.

In response to the district court’s decision to defer ruling on his claim of immunity, the President asked the court to convene a conference, citing concerns about being subjected to discovery before the court had ruled on immunity. The court, however, did not respond to the President’s request but instead, on December 3, 2018, entered a "Scheduling Order Regarding Discovery" opening discovery against "Donald J. Trump in his official capacity as President of the United States of America." On December 14, 2018, the President noticed this appeal from the district court’s "effective denial" of his individual capacity motion to dismiss based on absolute immunity.

After the President’s appeal was docketed in this court, the district court issued an order dated December 17, 2018, in which it asked the parties "to address the questions of whether the Court can dismiss without prejudice the claims against President Trump in his individual capacity and if so whether it should do so." Two days later, on December 19, the District and Maryland filed a notice of voluntary dismissal "without prejudice" of their individual-capacity claims pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). The District and Maryland then filed a motion in this court to dismiss the appeal. We deferred ruling on that motion pending oral argument.

II

We address first the District and Maryland’s motion to dismiss this appeal for lack of appellate jurisdiction. They contend (1) that "there is no decision below and thus no basis for appellate jurisdiction" and (2) that their voluntary dismissal in the district court "extinguished" their claims against the President in his individual capacity and thus "mooted this appeal."

In response, the President notes that an immediate appeal lies from interlocutory orders denying immunity, see Mitchell v. Forsyth , 472 U.S. 511, 525, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), and contends that, in this case, while the district court did not issue an order rejecting his claim of immunity, the court effectively denied his immunity by failing to rule on his motion and ordering discovery to begin. With respect to the District and Maryland’s voluntary dismissal without prejudice of their claims against the President in his individual capacity, the President contends that the dismissal was ineffective because, with the filing of his notice of appeal, jurisdiction over those claims had transferred to this court. He argues further that the District and Maryland’s effort to dismiss their individual-capacity claims without prejudice was designed to avoid a ruling on his immunity and to leave the issue open for another case.

Like claims of immunity generally, the invocation of absolute immunity is a claim to "an entitlement not to stand trial or face the other burdens of litigation." Mitchell , 472 U.S. at 526, 105 S.Ct. 2806. "The entitlement is an immunity from suit rather than a mere defense to liability." Id. ; see also Jenkins v. Medford , 119 F.3d 1156, 1159 (4th Cir. 1997) (recognizing that qualified immunity "exists to ‘give government officials a...