State Of New York et al v. Donald Trump et al
ORDER, Defendants' motion to certify the court's March 29 M&O for interlocutory appeal (Dkt. 264 in No. 16-CV-4756; Dkt. 217 in No. I7-CV-5228) is granted. So Ordered by Judge Nicholas G. Garaufis on 4/30/2018. (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MARTIN JONATHAN BATALLA VIDAL et al,
16-CV-4756 (NGG) (JO)
KIRSTJEN M. NIELSEN, Secretary, Department of
Homeland Security, et al..
STATE OF NEW YORK et al,
17-CV-5228 (NGG) (JO)
DONALD TRUMP, President of the United States, et al.
NICHOLAS G. GARAUFIS, United States District Judge.
Defendants move to certify for interlocutory appeal the court's March 29, 2018
Memorandum and Order (the "March 29 M&O"), which granted in part and denied in part
Defendants' motions to dismiss the above-captioned suits for failure to state a claim. (Mar. 29
M&O (Dkt. 260);' Defs. Mot. for Leave to Appeal ("Defs. Mot.") (Dkt. 264); Defs. Mem. in
Supp. of Mot. ("Defs. Mem.") (Dkt. 264-1).) Plaintiffs in Batalla Vidal v. Nielsen oppose this
motion; Plaintiffs in New York v. Trump take no position on it. (Pis. Resp. in Opp'n to Defs.
' Except as otherwise noted, all record citations refer to the docket in Batalla Vidal v. Nielsen. No. 16-CV-4756
Mot.("BV Pis. Opp'n")(Dkt. 265); Defs. Ltr. Re: Defs. Mot.(Dkt. 266).) For the reasons that
follow, the motion is GRANTED.
As the court previously explained when certifying its November 9,2017, Memorandum
and Order for interlocutory appeal (see Jan. 8, 2018, Mem.& Order(Dkt. 233)), a district court
may certify a non-final order in civil case for interlocutory appeal, so long as the "order involves
a controlling question oflaw as to which there is substantial ground for difference of opinion and
... and immediate appeal from the order may materially advance the termination ofthe
litigation." 28 U.S.C. § 1292(b). Ifthe court identifies one "controlling question oflaw as to
which there is substantial ground for difference of opinion," it may certify the entire order for
appeal. Citv ofNew York v. Beretta U.S.A. Corp.. 524 F.3d 384, 391-92(2d Cir. 2008).
The court agrees with Defendants that the March 29 M&O presents a controlling question
oflaw as to whether Plaintiffs may use the President's campaign-trail statements to show that the
rescission of the Deferred Action for Childhood Arrivals("DACA")program was substantially
motivated by racial animus. (See Defs. Mem. at 4.) Plaintiffs' equal-protection claims rely
heavily on allegations that, while on the campaign trail, now-President Trump made derogatory
statements about Latinos in general and Mexican immigrants in particular. (See Mar. 29 M&O
at 17.) The court concluded that it could consider these statements in deciding whether Plaintiffs
had stated plausible equal-protection claims. (Id. at 16-21.) If, however, the court were required
to disregard these pre-Inauguration statements, it would likely (although not certainlv) dismiss
Plaintiffs' equal-protection claims, as Plaintiffs have not alleged that the President made
comparably inflammatory and offensive statements about Latinos and especially Mexicans and
Mexican-Americans after taking office. Dismissal ofthese claims would also substantially
narrow the scope of discovery that Plaintiffs seek. (Cf. Defs. Mem. at 9.) Accordingly, reversal
of the court's conclusion that it could consider campaign-trail statements in assessing the
viability of Plaintiffs' equal-protection claims would "significantly affect the conduct ofthe[se]
action[s]," which is all that is required for this issue to be "controlling" for purposes of
§ 1292(b). SEC V. Credit Bancorp. Ltd.. 103 F. Supp. 2d 223, 227(S.D.N.Y. 2000); see
Sokaogon Gaming Enter. Corp. v. Tushie-Montgomerv Assocs.. Inc., 86 F.3d 656,659(7th Cir.
1996)("A question oflaw may be deemed 'controlling' if its resolution is quite likely to affect
the further course ofthe litigation, even if not certain to do so."); Chem. Bank v. Slaner(In re
The Dunlan Corp.\ 591 F.2d 139,148 n.ll (2d Cir. 1978).
The court also agrees with Defendants that "there is substantial ground for difference of
opinion" on this issue. An order furnishes "substantial ground for difference of opinion" when it
presents issues that are "difficult and offirst impression." Klinghoffer v. S.N.C. Achille Lauro.
921 F.2d 21, 25(2d Cir. 1990). The question of whether presidential campaign-trail statements
may be used to show that official action was tainted by forbidden motives is one that has divided
courts in the last year and a half and that has not been squarely addressed by the Second Circuit.
District courts have split over whether the President's campaign-trail statements support the
plausible inference that the rescission ofthe DACA program was motivated by unlawful
discriminatory animus. Compare Mar. 29 M&O at 16-21 (wes). and Regents ofthe Univ. of Cal.
V. U.S. Dep't of Homeland Sec.. — F. Supp. 3d —,2018 WL 401177, at *6-7(N.D. Cal. 2018)
(yes), with CASA de Marvland v. U.S. Dep't of Homeland Sec.. 284 F. Supp. 3d 758,774-75
Similarly, in litigation over the Administration's "travel ban," in its various incarnations,
several courts have considered the President's campaign-trail statements (such as his call "for a
total and complete shutdown of Muslims entering the United States")^ in deciding whether the
travel ban may have violated the Establishment Clause ofthe First Amendment to the U.S.
Constitution. See, e.g., Int'l Refugee Assistance Proi. v. Trump,857 F.3d 554, 594(4th Cir.
2017)(en banc)("IRAP I"), vacated as moot, 138 S. Ct. 353(2017); Int'l Refugee Assistance
Proi. V. Trump,265 F. Supp. 3d 570,617(D. Md. 2017), afPd,Inf1 Refugee Assistance Proi. v.
Trump,883 F.3d 233(4th Cir. 2018)(en banc) C'IRAP IF'T pet, for cert, filed. No. 17-1194
(U.S. Feb. 23, 2018); Hawai'i v. Trump,245 F. Supp. 3d 1227, 1235-36(D. Haw.), affdinpart.
vacated in part, and remanded, 859 F.3d 741 (9th Cir. 2017), vacated and remanded, 138 S. Ct.
377; IntT Refugee Assistance Proi. v. Trump,241 F. Supp. 3d 539, 547,557-61 (D. Md. 2017),
affd in relevant part and vacated in part, IRAP I, 857 F.3d at 554; Aziz v. Trump,234 F. Supp.
3d 724, 734-35 (E.D. Va. 2017);^IRAP II, 883 F.3d at 266(declining to consider pre-
Inauguration statements in light of post-Inauguration evidence that the travel ban was motivated
by impermissible anti-religious purpose).
Other judges have argued, however,that courts cannot or should not consider preInauguration statements as evidence ofthe true motives behind official action. S^IRAP II, 883
F.3d at 373-74(Niemeyer, J., dissenting); Washington v. Trump,858 F.3d 1168,1173-74(9th
Cir. 2017)(Kozinski, J., dissenting from the denial ofreconsid. en banc). Indeed, the
Government has staked out such a position before the Supreme Court, arguing that "campaign
statements are made by a private citizen before he takes the oath ofoffice and before, under the
Opinions Clause ofthe Constitution,[he] receives the advice of his cabinet, and that those are
constitutionally significant acts that mark the fimdamental transformation from being a private
^ Donald J. Trump for President, Press Release, Donald J. Trump Statement on Preventing Muslim Immigration
(Dec. 7, 2015). This statement, which appears to have been deleted from the campaign website, is cached at
citizen to the embodiment ofthe [EJxecutive [B]ranch." Tr. of Oral Argument 27:24-29:3,
Trump V. Hawaii, No. 17-965 (U.S. argued Apr. 25, 2018); see also Br. ofthe United States at
66-67, Trump v. Hawaii. No. 17-965 (U.S. filed Feb. 21, 2018). That the court finds these
arguments ultimately unpersuasive (see M&O at 19) does not mean that there is not substantial
ground for disagreement on this issue.
Third, the court agrees with Defendants that resolution of this issue would materially
advance the ultimate termination ofthis litigation. As noted above, excluding the President's
campaign statements from consideration would likely result in the dismissal of Plaintiffs' equalprotection claims and the concomitant narrowing of discovery. See Credit Bancorp. 103 F.
Supp. 2d at 227(noting that the questions of whether there is a controlling issue oflaw and
whether certification would materially advance the ultimate termination ofthe litigation are
"closely connected" in practice); Zvemuntowicz v. Hosp. Investments. Inc.. 828 F. Supp. 346,
353(E.D. Pa. 1993)(stating that the ultimate termination of litigation is materially advanced if
interlocutory appeal would,among other things,"eliminate issues thus making discovery much
easier and less costly"). Additionally, appeals from this court's orders denying Defendants'
motion to dismiss for lack of subject-matter jurisdiction(Mem.& Order(Dkt. 104)) and granting
Plaintiffs' motions for a preliminary injxmction(Am. Mem.& Order(Dkt. 255))are already
pending before the Second Circuit, and the issues decided in the preliminary injunction order
overlap in part with those decided in the order certified here. S^ Vidal v. Nielsen, No. 18-485
(2d Cir. filed Feb. 20,2018)(preliminary injunction); New York v. Trump. No. 18-488(2d Cir.
filed Feb. 20, 2018)(same); Nielsen v. Vidal, No. 18-122(2d Cir. filed Jan. 16, 2018)(Rule
12(b)(1) motion); Trump v. New York, No. 18-123(2d Cir. filed Jan. 16,2018)(same).
Allowing Defendants to present all these issues simultaneously on appeal to the Second Circuit
thus may serve the interests ofjudicial economy and facilitate the expeditious resolution ofthis
The Batalla Vidal Plaintiffs contend that the court should not certify the March 29 M&O
for interlocutory appeal because the legal issue identified by Defendants is not "controlling" and
because resolution ofthat issue would not materially advance this litigation's termination. (See
BV Pis. Opp'n.) In their view,even if the Second Circuit were to decide that this court should
not consider the President's campaign-trail statements when assessing Plaintiffs' equalprotection claims, Plaintiffs could simply replead their complaints to rely exclusively on postInauguration statements and other factual allegations supporting the conclusion that the DACA
rescission was the product ofimproper discriminatory animus. (Id at 2-6.) In support ofthese
arguments, the Batalla Vidal Plaintiffs rely heavily on Gottesman v. General Motors Corp., 268
F.3d 194(2d Cir. 1959), in which the Second Circuit stated that "[i]t would seem axiomatic that
appeals challenging pre-trial rulings upholding pleadings against demurrer could not be effective
in bringing nearer the termination of litigation," as such a ruling on appeal could "only stimulate
the parties to more and greater pre-trial sparring ...apart from the merits" and, at best,"lead to a
remand for repleading, with possibilities offurther interlocutory appeals thereafter." Id at 196.
The court does not read Gottesman to stand for the proposition that district courts should
not certify orders denying motions to dismiss for failure to state a claim. To the contrary, district
courts routinely certify, and the Second Circuit routinely accepts, appeals from such orders under
§ 1292(b). See, e.g.. Joseph v. Athanasopolulos. 648 F.3d 58,61 (2d Cir. 2011); Bensman v.
Whitman. 523 F.3d 119, 123(2d Cir. 2008); Kiobel v. Roval Dutch Petroleum Co.. 456 F. Supp.
2d 457,467-68(S.D.N.Y. 2006), afTd in part and rev'd in part, 621 F.3d 111 (2d Cir. 2010),
affd. 569 U.S. 108(2013). It is true that an order denying a motion to dismiss does not
necessarily warrant § 1292(b) certification. For example, an order denying a motion to dismiss
on the grounds that the factual allegations in a complaint are insufficient, under well-established
law,to state a claim ordinarily would not present a controlling question oflaw the resolution of
which would materially advance the termination ofthe litigation. Where, however, the grounds
for dismissing pleadings can be restated as a broader legal question that is likely to be dispositive
ofthe case at hand, certification of an interlocutory appeal may be appropriate.
Local 17 Health & Benefit Fund v. Philip Morris. Inc.. 7 F. Supp. 2d 294,296-97(S.D.N.Y.
Finally, at the risk of stating the obvious, the court notes that these are not ordinary cases.
Plaintiffs challenge a major change of nationwide immigration policy by the Executive Branch.
In so doing, they claim that this change was substantially motivated by the President's alleged
discriminatory bias. In these circumstances, the court has little difficulty concluding that its
March 29 M&O not only "satisfies [the § 1292(b)] criteria," but also "'involves a new legal
question [and] is of special consequence.'" Balintulo v. Daimler AG.727 F.3d 174, 186(2d Cir.
2013)(quoting Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100,106-07(2009)). Accordingly,
the court does "not hesitate to certify an interlocutory appeal." Id.(internal quotation marks and
For the reasons stated above. Defendants' motion to certify the court's March 29 M&O
for interlocutory appeal(Dkt. 264 in No. 16-CV-4756; Dkt. 217 in No. I7-CV-5228)is granted.
s/Nicholas G. Garaufis
Dated: Brooklyn, New York
MCHOLAS G. GARAUFl
United States District Judge
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