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Monday, June 26, 2017

SCOTUS OT16 Symposium: The Travel Ban Injunctions and 23(b)(2)

Today's ruling in the travel ban cases highlights some of the procedural questions that Howard, Sam Bray, and others have raised. The Court narrowed the existing injunctions, but not all the way: it left them in place "with respect to parties similarly situated" to the plaintiffs.

That "similarly situated" phrase echoes the language often used in class actions. But, as Justice Thomas pointed out, these suits have not been certified as class actions: they're on behalf of particular named plaintiffs, though the remedies sought are more typical of a class.

That's why the Court, in framing this "similarly situated" group, was itself forced to work through some of the issues ordinarily handled by class action doctrines:

The facts of these cases illustrate the sort of relationship that qualifies. For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.

(Edit: As Justice Thomas also points out, the defendants will have to work out the same reasoning, "on peril of contempt.")

Here's my question. Suppose that none of these cases had ever been brought. Instead, one of the named parties had brought a class action under 23(b)(2), seeking only injunctive relief, and defined the class as containing "all foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States." Would such a class be certified?

Class action practice isn't my area of expertise, so I can't really be sure (though my suspicion is no). What I'm more sure of is that the district court would have had to analyze a number of questions at length: Is this class definition proper? Are the named plaintiffs were typical of the class and adequate to represent them? Does the class contain members with interests adverse to the named plaintiffs, or to each other? Would a judgment describing such a class be sufficiently precise under 23(c)(3)(A) to determine its preclusive effect on individual litigants in future cases? And so on.

And it also strikes me that these inquiries have been short-circuited by the plaintiffs' obtaining an injunction that covers more people than are actually parties to the case. Why does Rule 23 impose so many barriers to making absent people into parties, if we can get the same ruling without those people before the court? Why have the judge appoint class counsel under 23(g), if any old lawyer can walk into court and get an order with exactly the same breadth?

Others have made this point before -- and again, class actions aren't my specialty, so I'm happy to be corrected. But it strikes me that this sort of injunction is at the very least in tension with the existing framework of Rule 23. And if they're good ideas nonetheless, then we should recognize that formally: by proposing new amendments to Rule 23, to tell us when the Rule's requirements should and shouldn't be relaxed.

Posted by Stephen Sachs on June 26, 2017 at 11:34 AM in 2016-17 End of Term, Civil Procedure | Permalink

Comments

Stephen,

I also prefer greater use of class actions -- or their analogies under the All Writs Act -- in injunctive relief cases. This may not precisely answer your question, but a few a off-the-cuff, half-baked thoughts, in no particular order:

(1) I agree there can be hurdles to class actions in injunctive relief cases, like the travel ban cases. But I don't think they are the ones you raise here. Rule 23(b)(2) class action, historically, have been easier to certify than damage class actions--at least with respect to the questions of adequacy, typicality, and commonality. David Marcus, The Public Interest Class Action, 104 Geo. L.J. 777 (2016). This is because, even though there might be real conflicts within the class, the relief sought won't really vary from individual to individual. See ALI Principles of the Law of Aggregate Litigation 2.04 cmt. a ("Even in litigation against governmental entities ... the generally applicable nature of the policy or practice typically means that the defendant government will be in a position, as a practical matter, either to maintain or discontinue the dispute policy or practice as a whole, not to afford relief therefrom only to the named plaintiff. Litigation seeking prohibitory injunctive or declaratory relief against a generally applicable policy or practice is already aggregate litigation in practice, because the relief that would be given to an individual claimant is the same as the relief that would be given to an aggregation of such claimants.") This is one reason why the late Richard Nagareda described injunctive relief as a form of "embedded aggregation." Richard A. Nagareda, Embedded Aggregation in Civil Litigation, 95 Cornell L. Rev. 1105, 1118 (2010)("Examples of indivisible remedies include the classic sorts of prohibitory injunctions or declaratory judgments with respect to a generally applicable practice on the part of the defendant. In functional terms, the court may enjoin the practice or not. It may declare that practice unlawful or not. The crucial point of indivisibility lies in the recognition that such remedies, if afforded, stand as a practical matter to redound to the benefit of all those adversely affected by the disputed practice on the defendant's part, not merely to the particular plaintiff who happens to have sued.") That has begun to change as courts import rules from damage class actions into injunctive relief classes--increasing the requirement that injunctive relief classes are sufficiently "cohesive." E.g. Maureen Carroll, Class Action Myopia, 65 Duke L.J. 843 (2016). But, on first blush, I don't see cohesiveness as a real barrier to class action injunctive relief in these cases.

(2) Notably, the very first injunction in the travel ban cases, Darweesh v. Trump, was a class action that sought injunctive relief. Judge Amon has yet to rule on the motion, but if you're interested in the usually, difficult, complex and rare world of habeas class actions, you can see the complaint here: https://law.yale.edu/system/files/area/clinic/document/4_-_motion_for_class_cert.pdf. The class definition was pretty narrow there. In fact, some worried at the time it was too narrow. But I'm not sure whether the class definition you're proposing would be over-broad, or, as a practical matter, a class action would have lead to a differently worded injunction in this case.

(3) The fact that some of these actions are state attorney general actions may weigh against concerns about whether the class is adequately represented or whether the plaintiff is sufficiently "typical." Maggie Lemos, Brandon Garrett, and I (among many others) have written about how actions by state attorneys general, prosecutors, and agencies replicate some of the features of aggregate litigation (but without the same rules to police potential conflicts of interest). Lemos, Aggregate Litigation Goes Private, 126 Harv. L. Rev. 486 (2012); Zimmerman, Distributing Justice, 86 N.Y.U. L Rev. 500 (2011); Garrett, Structural Reform Prosecution, 93 Va. L. Rev. 853 (2006). I have come around to the idea that adequacy and typicality concerns shouldn't limit public actors--as much as private lawyers in a class action--from commencing lawsuits that benefit a large group of people (or all of their citizens). Conflicts among class members is different, but I'm not sure whether class action procedures--like subclassing--is necessary to solve that problem here. State AG actions, of course, don't solve the problem of whether or not an injunction should apply beyond state lines. But there are many different forms of aggregation in law--from class actions to government actions to bankruptcy, receiverships and trusts--and I'm not sure all of them require the same rules to police against conflict as Rule 23. I like Rule 23, don't get me wrong. But, as many class action lawyers will attest, it's also got a lot of redundancies and unnecessary complexities.

(4) Rather, I think the most difficult obstacle(s) to pursuing or obtaining class wide relief in many of these cases are the substantive barriers imposed by Congress and in administrative law--including requirements that individuals exhaust administrative requirements or complex rules that bar or "channel" judicial review to all but individual claims. See J.E.F.M. v. Lynch, -- F.3d. -- (9th Cir. 2016), https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf That doesn't mean class actions are not desirable in these contexts. In fact, class actions are often necessary to ensure that plaintiffs claims are not mooted when a lead plaintiff's claim expires after admission or release, e.g., Geraghty,. 445 U.S. 388 (1980). Class actions also help develop a record necessary to demonstrate systemwide illegal patterns and practices committed by government actors. But I don't think changes to Rule 23 would really address the core problem the courts are worrying about in these cases--a perceived need to act "uniformly" with respect to the nation's immigration laws. Texas v. United States, 809 F.3d 134, 187-88 (5th Cir. 2015).

All my best.

Adam

Posted by: Adam Zimmerman | Jun 26, 2017 2:15:03 PM

Thanks! Functionally, I agree with you that injunctive relief often makes others' participation less necessary. If I get an injunction against PoisonCorp's dumping chemicals in the river, then other people won't have to--whether or not they're parties or have any right to enforce it. Similarly, a travel ban injunction re: people heading to Hawaii, studying at its universities, etc. might lead the Administration to stop enforcing it altogether, if it'd be too hard for airport officials to figure out who is or isn't covered. (Or it might stop enforcing within a particular circuit for stare decisis reasons, expecting to lose on the merits in any new lawsuit. And so on.)

But this kind of functional equivalence strikes me as very different from formally structuring the district court's order to extend to such cases, and making enforcement w/r/t someone having *no* connection to the lawsuit into grounds for contempt. If the Admin. violated the injunction w/r/t an unrelated non-plaintiff, which party would have standing to move for contempt? And if no one would, then why should the injunction be so broad in the first place?

A 23(b)(2) class action may well be easier to certify in such cases; but then we may as well expect the plaintiffs to bring one, and to include as parties everyone who needs protection. Or if Rule 23 review is excessive in practice, then that's an argument for the rules committees to propose an amendment. Uniformity is great, but so is having multiple judicial districts, which can go different ways even on the same question of law; and it's not clear to me that any statute or other source of law requires--or, indeed, permits--the injunction to cover everyone at once. (The Administration, too, can always achieve uniformity by voluntarily desisting.) So I'm still skeptical of the injunction's scope, even as the Court has limited it.

Posted by: Stephen Sachs | Jun 26, 2017 4:09:52 PM

All of these are fair points. And I agree that class actions are preferable to address concerns about the scope and enforcement of a national injunction.

Your question about contempt is an interesting one. The VA state attorney general presumably could -- and did -- seek to hold the government in contempt on behalf of others trying to fly into Dulles after the first travel ban was enjoined. I would think that's okay under VA's parens patriae authority, even though the litigation didn't involve a class action with Rule 23 protections. (But you could certainly question whether state AGs should have standing do that for those flying into other states. I go back and forth about this. Even though this is a federal law with national implications, at first blush, this would seem to step on the toes of other states and state AGs. Then again, what if the federal government were to purposely re-route families looking to reunite in VA, into another state, to avoid a VA only injunction? Shouldn't a federal court be able to adjust the scope of an injunction in aid of it's jurisdiction without certifying a class? I honestly don't have good answers to these questions, particularly in a short prawfs response.)

Two quick points of clarification and a final thought:

(1) By pointing out that injunctions and class actions are functionally similar, I only meant to show that the tools we use in class actions won't necessarily make a court's injunction more informed, defined, or more protective of absent plaintiffs. So, as a practical matter, I don't think the failure to meet the prerequisites of Rule 23 really hurts plaintiffs. (But, as you note, that doesn't mean we shouldn't use them when we can.)

(2) By noting that the Rules Committee can't fix the problem, I was referring to the fact that the reason we don't have more habeas/immigration class actions is because of limits imposed by substantive law--which often limit federal appellate courts to reviewing individual claims, even when those claims raise systematic or constitutional problems--even when class actions do some good. In such cases, only Congress or administrative agencies may be able to fix those obstacles to class adjudication. (That's what the Ninth Circuit was getting at in the J.E.F.M. v. Lynch, -- F.3d. -- (9th Cir. 2016) I link to above.) But I get what you mean for those declaratory and injunctive relief cases that are certifiable as classes. Maybe there is room for the Rules Committee to act.

Final thought: I think those who study complex litigation and those who study these knotty constitutional questions often travel in different circles. But we're now starting to really see the tensions between (1) substantive ideas, like government "non-acquiescence" and rules against government preclusion, which allow questions like this to "percolate" in the circuit courts before reaching the Supreme Court and (2) procedures, like class actions and federal multi-district litigation, which are by design, structured to centralize common questions in front of a single district court in a single circuit.

We're seeing another version of this debate play out now in FOIA litigation arising out of the travel ban cases. The federal government recently petitioned the Judicial Panel on Multidistrict Litigation to centralize all of the pending FOIA cases to a single court in D.C. The government says it wants a uniform result because the same policies and records are at play. The ACLU has objected on a number of grounds, including that federal government is forum shopping and that these cases can play out in different federal courts around the country.

All my best.

Adam

Posted by: Adam Zimmerman | Jun 26, 2017 6:44:47 PM

All of these are fair points. And I agree that class actions are preferable to address concerns about the scope and enforcement of a national injunction.

Your question about contempt is an interesting one. The VA state attorney general presumably could -- and did -- seek to hold the government in contempt on behalf of others trying to fly into Dulles after the first travel ban was enjoined. I would think that's okay under VA's parens patriae authority, even though the litigation didn't involve a class action with Rule 23 protections. (But you could certainly question whether state AGs should have standing do that for those flying into other states. I go back and forth about this. Even though this is a federal law with national implications, at first blush, this would seem to step on the toes of other states and state AGs. Then again, what if the federal government were to purposely re-route families looking to reunite in VA, into another state, to avoid a VA only injunction? Shouldn't a federal court be able to adjust the scope of an injunction in aid of it's jurisdiction without certifying a class? I honestly don't have good answers to these questions, particularly in a short prawfs response.)

Two quick points of clarification and a final thought:

(1) By pointing out that injunctions and class actions are functionally similar, I only meant to show that the tools we use in class actions won't necessarily make a court's injunction more informed, defined, or more protective of absent plaintiffs. So, as a practical matter, I don't think the failure to meet the prerequisites of Rule 23 really hurts plaintiffs. (But, as you note, that doesn't mean we shouldn't use them when we can.)

(2) By noting that the Rules Committee can't fix the problem, I was referring to the fact that the reason we don't have more habeas/immigration class actions is because of limits imposed by substantive law--which often limit federal appellate courts to reviewing individual claims, even when those claims raise systematic or constitutional problems--even when class actions do some good. In such cases, only Congress or administrative agencies may be able to fix those obstacles to class adjudication. (That's what the Ninth Circuit was getting at in the J.E.F.M. v. Lynch, -- F.3d. -- (9th Cir. 2016) I link to above.) But I get what you mean for those declaratory and injunctive relief cases that are certifiable as classes. Maybe there is room for the Rules Committee to act.

Final thought: I think those who study complex litigation and those who study these knotty constitutional questions often travel in different circles. But we're now starting to really see the tensions between (1) substantive ideas, like government "non-acquiescence" and rules against government preclusion, which allow questions like this to "percolate" in the circuit courts before reaching the Supreme Court and (2) procedures, like class actions and federal multi-district litigation, which are by design, structured to centralize common questions in front of a single district court in a single circuit.

We're seeing another version of this debate play out now in FOIA litigation arising out of the travel ban cases. The federal government recently petitioned the Judicial Panel on Multidistrict Litigation to centralize all of the pending FOIA cases to a single court in D.C. The government says it wants a uniform result because the same policies and records are at play. The ACLU has objected on a number of grounds, including that federal government is forum shopping and that these cases can play out in different federal courts around the country.

All my best.

Adam

Posted by: Adam Zimmerman | Jun 26, 2017 6:44:52 PM

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