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Arab American Civil Rights League v. Trump

United States District Court, E.D. Michigan, Southern Division

November 1, 2019

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al., Plaintiffs,
v.
DONALD TRUMP, et al., Defendants.

         ORDER: (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO CERTIFY JULY 10, 2019 ORDER FOR INTERLOCUTORY APPEAL AND TO STAY DISCOVERY PENDING APPEAL [ECF NO. 140]; (2) CERTIFYING JULY 10 ORDER FOR INTERLOCUTORY APPEAL; AND (3) DECLINING TO STAY DISCOVERY PENDING APPEAL

          Victoria A. Roberts United States District Judge.

         I. INTRODUCTION

         Plaintiffs challenge the constitutionality of Presidential Proclamation No. 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats (the “Proclamation”), 82 Fed. Reg. 45161 (2017). This challenge is based on: (1) the First Amendment's Establishment Clause; (2) the equal protection and due process components of the Fifth Amendment; and (3) the free speech and freedom of association components of the First Amendment.

         On July 10, 2019, the Court entered an Order Denying Defendants' Motion to Dismiss Plaintiffs' Third Amended Complaint (“July 10 Order”).

         Defendants now move to certify the July 10 Order for interlocutory appeal and to stay discovery pending appeal. [ECF No. 140]. The motion is fully briefed.

         Defendants' motion [ECF No. 140] is GRANTED IN PART and DENIED IN PART. The Court CERTIFIES the July 10 Order for interlocutory appeal but declines to stay discovery pending appeal.

         II. THE JULY 10 ORDER

         In deciding Defendants' motion to dismiss, the Court construed the Supreme Court's decision in Trump v. Hawaii, ___ U.S. ___, 138 S.Ct. 2392 (2018). Among other things, the Court held that Hawaii was not dispositive of Plaintiffs' claims because whether Plaintiffs plausibly alleged violations of their constitutional rights for purposes of a motion to dismiss was materially different from whether they were likely to succeed on the merits of their claims, which was the issue before the Hawaii Court.

         Defendants argued that the Court should evaluate the Proclamation under a conventional application of the standard set forth in Kleindienst v. Mandel, 408 U.S. 753 (1972), without any rational basis component. A conventional application of Mandel limits a court's review “to whether the Executive gave a ‘facially legitimate and bona fide' reason for its action. . . . ‘[W]hen the Executive exercises [its] delegated power negatively on the basis of a facially legitimate and bona fide reason, [] courts will neither look behind the exercise of that discretion, nor test it by balancing its justification' against the asserted constitutional interests of U.S. citizens.” Hawaii, 138 S.Ct. at 2419 (quoting Mandel, 408 U.S. at 769-70).

         Because the Supreme Court looked behind the face of the Proclamation - see Id. at 2420 (“we assume that we may look behind the face of the Proclamation to the extent of applying rational basis review”) - this Court did the same in the July 10 Order, effectively applying rational basis review but framing it as “the Mandel standard and rational basis review.” [See ECF No. 138, PageID.2747]. In so doing, the Court held that Plaintiffs stated a cause of action: the Proclamation did not withstand rational basis scrutiny. The denied Defendants' Rule 12(b)(6) motion.

         III. DISCUSSION

         A. Interlocutory Appeal

         Defendants ask the Court to certify the July 10 Order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

         i. Legal Standard

         The Court may certify a non-final order for interlocutory appeal where the party seeking appellate review establishes that: “(1) the order involves a controlling question of law, (2) a substantial ground for difference of opinion exists regarding the correctness of the decision, and (3) an immediate appeal may materially advance the ultimate termination of the litigation.” In re City of Memphis, 293 F.3d 345, 350 (6th Cir. 2002); 28 U.S.C. § 1292(b).

         “The decision to certify an appeal pursuant to section 1292(b) is left to the sound discretion of the district court.” Sigma Fin. Corp. v. Am. Int'l Specialty Lines Ins. Co., 200 F.Supp.2d 710, 723 (E.D. Mich. 2002). However, because the federal legal system strongly disfavors piecemeal appeals, review under § 1292(b) should be “granted sparingly and only in exceptional cases.” Memphis, 293 F.3d at 350; see also Durant v. Servicemaster Co., 147 F.Supp.2d 744, 752 (E.D. Mich. 2001) (interlocutory appeal “exists only for exceptional situations in which an immediate appeal may prevent protracted litigation”).

         All three conditions of § 1292(b) are met, and this is an exceptional case ...


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