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Tuesday, May 23, 2017

Another unwarranted universal/nationwide injunction

Last week, Judge Jones of the Western District of Washington issued a nationwide TRO against enforcement of a federal regulation barring attorneys from providing limited limited legal services for otherwise-pro bono litigants in immigration proceedings. The regulation requires attorneys to file a formal appearance as counsel of record in order to provide any representation, something the plaintiff Northwest Immigrant Rights Project, a nonprofit advocacy organization, cannot afford to do in all cases for all clients. NWIRP argued that the regulation violated the First Amendment.

As always, the court made the order nationwide: "Counsel for the Government represented during the hearing on the TRO that it desired to continue issuing cease and desist letters to non-profit organizations providing legal services to immigrants. As such, the Court grants this TRO on a nationwide basis. Therefore, the Court prohibits the enforcement of 8 C.F.R. § 1003.102(t) during the pendency of this TRO on a nationwide basis."

Even if universal injunctions might at times be warranted, this is not one of those times. NWIRP represents clients only in the Pacific Northwest, so it would be sufficiently protected by an injunction prohibiting the issuance of cease-and-desist letters to it in Washington. We could even extend that to the issuance of letters to NWIRP anywhere in the country (a real "nationwide" injunction). But NWIRP's is in no way deprived of complete relief if the government issues C/D letters to any other lawyers or nonprofit organizations anywhere else in the country. There is no reason, and no basis in principles of equity and judgments, for one district court in a non-class action to freeze enforcement as to every other person everywhere in the country.

But we have reached a point where universality is automatic and unthinking. Every district judge believes that every injunction baring enforcement of a provision of federal law must be universal.

Posted by Howard Wasserman on May 23, 2017 at 06:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Thank you!

Posted by: Anthony Panichelli | May 24, 2017 9:27:05 AM

I've written about this a lot, but the basic point is this:

Under traditional principles of equity and judgments, an injunction protects the named plaintiffs and binds the named defendants (or those working for and with the named defendants). So when a court enjoins enforcement of a law, it enjoins enforcement by the defendant against those plaintiffs. Government remains free to enforce against everyone else and other governments remain free to enforce similar laws against anyone else.

District courts now are routinely issuing "nationwide" (really "universal") injunctions barring the government from enforcing the challenged law as to anyone, anywhere. There is no reason for this and it is improper (in almost all cases) under principles of equity and the law of judgments. But the government seems to have given up trying to challenge the scope of the injunction--it's just waiting to get to SCOTUS to wrap the whole thing up.

Posted by: Howard Wasserman | May 24, 2017 8:08:17 AM

"Every district judge believes that every injunction baring enforcement of a provision of federal law must be universal."

Can someone go into more detail on this?

Thanks in advance...genuinely curious.

Posted by: Anthony Panichelli | May 23, 2017 9:09:10 PM

I agree with you this is getting crazy. It would be nice if there were some discussion at least about why the court has jurisdiction regarding other potential plaintiffs.
On a totally side note, how on earth do the plaintiffs win on the merits? Wouldn't their claims be valid claims against every state's Rules of Professional Responsibility which also severely limit what a lawyer can talk about without fully representing the client?

Posted by: biff | May 23, 2017 6:58:16 PM

"Every district judge believes that every injunction baring enforcement of a provision of federal law must be universal."
Gee, I wonder why?

Posted by: James Milles | May 23, 2017 6:45:55 PM

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