Blumenthal v. Trump, 382 F. Supp. 3d 77

Members of Congress (plaintiffs) sued President Trump in his official capacity alleging violations of the Foreign Emoluments Clause.
The Court previously held plaintiffs have standing and stated plausible Emoluments Clause claims and an equitable cause of action seeking injunctive relief.
The President moved to certify interlocutory appeals of the Court's Sept. 28, 2018 and Apr. 30, 2019 orders under 28 U.S.C. § 1292(b) and sought a stay.
Section 1292(b) requires (1) a controlling question of law, (2) substantial grounds for difference of opinion, and (3) that immediate appeal may materially advance termination of the litigation.
The President identified four controlling questions: standing, existence of an equitable cause of action, availability of declaratory/injunctive relief, and the meaning of the Clause.
The Court denied certification and the requested stays because the President failed to show the third §1292(b) element—that an immediate appeal would materially advance termination—given an agreed expedited schedule (limited discovery and cross-motions for summary judgment able to conclude within ~6 months).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing to sue	Plaintiffs previously shown Article III injury and representation interest	President argues plaintiffs lack standing to sue under Emoluments Clause	Court previously held plaintiffs have standing; certification denied because interlocutory appeal would not materially advance termination
Existence of equitable cause of action	Plaintiffs have an equitable cause of action to seek injunctions against President	President disputes existence of equitable cause of action	Court found plausible equitable cause of action earlier; certification denied on procedural §1292(b) grounds
Availability of declaratory/injunctive relief	Relief sought (injunction/declaratory) is constitutionally permissible	President contests that such relief may be ordered against the President	Court previously held sought relief constitutional; certification denied because third §1292(b) factor not met
Meaning/scope of Foreign Emoluments Clause	Plaintiffs: Clause covers foreign profits/advantages to President	President: Clause interpretation narrower; merits question suitable for appeal	Court acknowledged substantial disputes exist but denied interlocutory appeal because appeal would not materially advance litigation under §1292(b)

Swint v. Chambers County Comm'n, 514 U.S. 35 (1995) (district courts have limited discretion to certify interlocutory appeals under §1292(b))
United States v. Nixon, 418 U.S. 683 (1974) (policy against piecemeal interlocutory appeals)
Trout v. Garrett, 891 F.2d 332 (D.C. Cir. 1989) (interlocutory appeal provisions are exceptions to final-judgment rule)
Virtual Def. & Dev. Int'l, Inc. v. Republic of Moldova, 133 F. Supp. 2d 9 (D.D.C. 2001) (moving party bears heavy burden to justify interlocutory appeal)
Ahrenholz v. Bd. of Trs. of the Univ. of Ill., 219 F.3d 674 (7th Cir.) (all §1292(b) criteria must be satisfied to certify)
APCC Servs., Inc. v. AT&T Corp., 297 F. Supp. 2d 90 (D.D.C. 2003) (interlocutory appeal may be warranted where discovery is protracted and costly)
Molock v. Whole Foods Mkt. Grp., 317 F. Supp. 3d 1 (D.D.C. 2018) (denial of certification where discovery would be complex and expensive supported certification in that case)
Lemery v. Ford Motor Co., 244 F. Supp. 2d 720 (S.D. Tex. 2002) (jurisdictional disputes paired with burdensome discovery supported interlocutory appeal)
Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Group, 233 F. Supp. 2d 16 (D.D.C. 2002) (denial of certification where movant assumed success on appeal to show material advancement)