United States District Court, E.D. Michigan, Southern Division
(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.
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
10, 2019, the Court entered an Order Denying Defendants'
Motion to Dismiss Plaintiffs' Third Amended Complaint
(“July 10 Order”).
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.
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
THE JULY 10 ORDER
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
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).
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
ask the Court to certify the July 10 Order for interlocutory
appeal pursuant to 28 U.S.C. § 1292(b).
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.
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”).
three conditions of § 1292(b) are met, and this is an
exceptional case ...