Document Type

Working Paper

Publication Date

7-20-2020

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; Litigation, Procedure & Dispute Resolution eJournals; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Criminal Justice Research Network; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Political Science Network

Abstract

This article — part of a symposium on federal appellate procedure — addresses questions of appellate jurisdiction that have played an important role in litigation challenging Donald Trump’s conduct under the Constitution’s Emoluments Clauses. When federal trial judges in the District of Columbia and Maryland rejected Trump’s early attempts to dismiss two of these cases, Trump sought immediate relief from the federal courts of appeals rather than allowing the litigation to proceed in the district courts. The lack of a traditional final judgment, however, prompted difficult jurisdictional issues for the D.C. Circuit and the Fourth Circuit. In both cases, the relationship between appellate mandamus and the certification process set forth in 28 U.S.C. § 1292(b) has figured prominently. And both cases led to problematic decisions on this issue. The D.C. Circuit deployed an under-scrutinized but increasingly common tactic that this article calls a mandamus “nudge,” which ultimately persuaded the D.C. district court on remand to certify its orders for immediate appeal under § 1292(b) after initially refusing to do so. In the Fourth Circuit, the initial three-judge panel went even further — using mandamus to overturn the district court’s refusal to certify its orders under § 1292(b) and to treat the case as if the district court had provided the certification necessary for an immediate appeal. The en banc Fourth Circuit correctly rejected this move by the initial panel, but the issue is now headed for the Supreme Court.

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