Lead Opinion
McKEAGUE, J., delivered the order of the court in which WHITE, J. and HOOD, D.J., joined. WHITE, J. (pg. 953), delivered a separate concurring opinion.
ORDER
At a campaign rally in Louisville, Kentucky, on March 1, -2016, then-presidential candidate Donald J. Trump responded to protesters by stating, “Get ’em out of here,” followed closely by, “Don’t hurt ’em—if I say go ‘get ’em,’ I get in trouble with the press.” .Apparently, the latter admonition either went unheeded or came too late. Allegedly in response to Trump’s 'initial statement, three protesters were assaulted by three Trump supporters. Those three protesters, now plaintiffs in this action, filed a complaint in Kentucky state court against several defendants, including Trump. Trump removed this action to federal district court.
The district court denied in part Trump’s motion to dismiss, holding the complaint stated a plausible claim for “incitement to riot” under Kentucky law.
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The relevant statutory section provides: (b) When a district judge, in making in a civil action an' order not otherwise appealable under this section, shall be of - the opinion that Such order involves a - controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from -the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an. appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within, ten days after the entry, of the order....
28 U.S.C. § 1292(b).
The district court may certify an order for interlocutory appeal if it is “of the opinion” that three conditions exist: “[1] the order involves a controlling question of law to which there is [2] substantial ground for difference of opinion and ... [3] an immediate appeal may materially advance the termination of the litigation.” 28 U.S.C. § 1292(b) (emphases added).
This court has, at times characterized these conditions as “requirements” on appeal, perhaps giving the wrong impression that we review the district court’s certification of the conditions de novo. See, e.g., In re City of Memphis,
1. Whether “the order involves a controlling question of law”
The district, court’s order, below involves a 1) “question of law” that is 2) “controlling.” 28 U.S.C. § 1292(b).
-. First, “[t]he sufficiency of ,a complaint is a question of law.” Ctr. for Bio-Ethical Reform, Inc., v. Napolitano,
Second, these questions of law— whether the complaint states a facially valid claim, .and if so, whether the First Amendment applies to bar the claim here—are undoubtedly “controlling” because their resolution “could materially affect the outcome of the case.” In re City of Memphis,
2. Whether “there is substantial ground for difference in opinion”
The district court found that its order gives rise to “substantial ground for difference of opinion.” 28 U.S.C. § 1292(b). We agree.
“A substantial ground for, difference of opinion exists where reasonable jurists might disagree on an issue’s resolution, not merely where they have already disagreed.” Reese v. BP Exploration, Inc.,
3. Whether “an immediate appeal may materially advance the termination of the litigation”
The petition “may materially advance the termination of the litigation.” 28 U.S.C. § 1292(b) (emphasis added). If a panel of this court were to find the complaint fails to state an incitement claim under Kentucky law or that Brandenburg applies to bar the claim, litigation would end. See supra note 3.
4. Whether other prudential factors guide our discretion to “permit an appeal”
Finally, we pause to ask whether other factors support permitting an appeal of the district court’s order.
Some prior case law suggests that review is only appropriate “in exceptional cases.” Kraus v. Bd. of Cty. Rd. Comm’rs for Kent Cty.,
While an interlocutory appeal from a denial of a motion to dismiss should not be granted cavalierly, we think this case is exceptional in many ways. As it stands, the President of the United States must answer for a state-law claim that presents a novel question. The practical and political consequences of such a case are readily apparent. Prior to certification, Plaintiffs apparently sought expansive discovery, encompassing the President’s tax returns and medical records, and sought to take the President’s deposition—in Kentucky. In the name of public policy, we have afforded at least as much caution in cases involving public officials, from police watchmen to presidential aides, for decades. See Harlow v. Fitzgerald,
Finally, petitions do not arise under 28 U.S.C. § 1292(b) unless the district court first certifies its order for an interlocutory appeal. In most cases, certified orders already stand out as “exceptional” by virtue of another Article III judge’s opinion. District courts do not make a habit of certifying their own orders for interlocutory appeal. There is little risk that this order— read in its context—will open the floodgates.
In short, we are convinced that a panel of this court should ensure that the Kentucky claim rests on a solid footing before permitting litigation to continue. It may, or it may not.
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The petition for permission to appeal is GRANTED, and the mandamus petition is DISMISSED AS MOOT.
Notes
. Originally, the district court held two claims were plausible: incitement to riot and negligence. However, the district court reconsidered and reversed its holding as 'to the negligence claim,
. Trump initially petitioned for a writ of mandamus, asking this court to dismiss the suit against him. While the mandamus petition was pending, the district court granted his motion to certify its order for interlocutory appeal,
. While the district court's certification in certain places purported to certify a “question,” "section 1292(b) authorizes certification of orders for interlocutory appeal, not certification of questions." Linton v. Shell Oil Co.,
Concurrence Opinion
CONCURRENCE
concurring.
I agree that the petition for leave to appeal should be granted because Petitioner President Trump has shown that the certified order meets the standards for granting interlocutory appeal.
I write separately to state that we should not use a published order granting leave as a vehicle to clarify or change the law as stated in a published opinion when no such clarification or development is necessary to address the petition for leave.
Further, I do not agree that orders certified for interlocutory appeal are intrinsically “exceptional” because they are rare, or that there is a presumption in favor of granting petitions for leave to appeal when “another Article III judge” certifies an order. The fact that a district judge certified the order for interlocutory appeal is simply a necessary prerequisite present in all cases in which a petition is brought under 28 U.S.C. § 1292(b).