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Friday, July 07, 2017

The district court's injunction (Updated Twice)

Judge Watson in the District of Hawaii last night refused to rule on the plaintiffs' Motion to Clarify the Scope of the Preliminary in the travel ban case. The plaintiffs, he ruled, were asking him to clarify the meaning of language in the Supreme Court's opinion and order, not his order; that request should be directed to SCOTUS. Ilya Somin criticizes the ruling, pointing out that interpreting and applying the language of rulings from higher courts is what district courts do. Lyle Deniston questions whether there is a procedure for asking SCOTUS to clarify language in the opinion, short of a motion for reconsideration. Michael Dorf is a bit more forgiving, arguing that Watson's ruling is not crazy, given the confusion involved when cases are moving up and down the hierarchical judicial system.

I agree that Judge Watson was wrong, for the reasons all three commentators describe. I want to make explicit one point that I believe is implicit in their posts (and that Remedies guru Doug Laycock made on a listserv): The injunction, albeit as modified by SCOTUS, remains Judge Watson's order and it remains his duty to enforce that modified injunction. And that entails figuring out the scope of the injunction, which means figuring out precisely how SCOTUS modified it, which means figuring out what SCOTUS meant in its opinion. The trial court must do that in the first instance--SCOTUS can reverse that interpretation on appeal if it disagrees. My point is that this goes beyond the ordinary situation of lower courts determining and applying SCOTUS precedent to a new case or even to the same case (for example, applying a new legal standard to evaluate the merits of the claim). This is about a district judge enforcing his own injunction going forward.

The plaintiffs have appealed the denial of the motion, presumably because this is an order refusing to modify an injunction. My best guess is that the Ninth Circuit summarily reverses and tells Judge Watson to determine the scope of his injunction.

[Update, Saturday, July 8: I want to say I was half-right. The Ninth Circuit dismissed the appeal for lack of jurisdiction, because the order did not do anything of the things enumerated in § 1292(a)(1), because it sought a declaration rather than an injunction, and because the plaintiffs could still seek injunctive relief in the district court. The Ninth Circuit added that the district court "does possess the ability to interpret and enforce the Supreme Court's order, as well as the authority to enjoin against, for example, a party's violation of the Supreme Court's order placing effective limitations on the scope of the district court's preliminary injunction." In other words, plaintiffs filed the wrong motion. They should have moved to enforce the district court's injunction-as-modified or to hold the government in contempt of the district court's injunction-as-modified--and in the course of resolving those motions, the district court must decide what the Supreme Court said and meant. Presumably, that is what the plaintiffs will do in the district court. [Second Update, Saturday afternoon: Motion to Enforce, or in the alternative, to Modify]

The Ninth Circuit's was surprisingly rigid. Courts of appeals typically take jurisdiction under § 1292(a)(1) if the order is within sniffing distance of an injunction or its enforcement. Plus, it was obvious that the plaintiffs were asking the district court to enforce the injunction according to its proper terms (based on SCOTUS modification) by determining those proper terms. In some sense, the Ninth Circuit did tell the district court it was wrong and that it did have power to decide what SCOTUS meant; the plaintiffs simply captioned their motion incorrectly. This is different than what the district court said, in directing all issues to SCOTUS.]

Posted by Howard Wasserman on July 7, 2017 at 01:09 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Prof. Wasserman, there seems a substantial difference (not merely a caption error) between asking for "clarification" and asking for enforcement/modification of an injunction. It seems that legal commentators were wrong to read so much into Judge Watson's order on the former request.

Compare to Hawaii's motion in opposition to the administration's request for clarification back in March. The Administration sought clarification that parts of the EO not addressed by plaintiffs were in fact covered by the temporary restraining order which prevented enforcement of the entire sections including those provisions.

In its response to the Administration's motion for clarification, Hawaii used "clarify" in scare quotes, asserting that the administration was improperly seeking a substantive change to the order. Back in March, Hawaii seemed to understand the distinction between a motion to clarify and a motion to enforce. Of course, Judge Watson was in a good position to know his own mind and whether he wrote an unintentionally overbroad TRO or not. If, as Hawaii claimed, the administration was merely using the motion to sneak in arguments to relitigate the order, Judge Watson could see that too.

In this case, the same standards should apply. For mere "clarification," the parties should go to the court that issued the order - here, the Supreme Court. If seeking enforcement, Judge Watson should rule. I think the view expressed by Daniel is also an overreading of Watson's ruling.

I think it fairly obvious that Hawaii styled its request as it did in order to sidestep certain showings required by a motion claiming the injunction is being violated. Indeed, now Hawaii boldly asks Watson to modify the Supreme Court's order. That may amount to little more than an errant caption, since Watson can issue orders enforcing the Supreme Court's injunction, effectively endorsing a more narrow or broad reading of it.

Posted by: Crispian | Jul 11, 2017 2:25:38 PM

I am not sure it is correct to say that SCOTUS holds the underlying case. The injunction remains in place and, to the extent portions of it remain unstayed, that is for the district court to control.

I think this proves Dorf's point that a lot of this owes to the confusion built into movement of cases up and down through the judicial hierarchy.

Posted by: Howard Wasserman | Jul 8, 2017 11:30:37 AM

I think that the DJ has it correct and I am not persuaded by the nuanced reading from the 9th either. The underlying case remains before SCOTUS. SCOTUS's order was explicitly based upon upon a "balance of equities". Moreover, SCOTUS is not in session and won't be again until it has time to hear the underlying case.

The result is that as a practical matter any attempt by the DJ to "interpret" SCOTUS's order in this situation as a de facto matter /becomes/ SCOTUS's order. That is wrong in my view. I agree that the best course of action is to let SCOTUS interpret its own order. I recognize that as a de facto matter this leaves the Administration's interpretation of the order the law of the land. But that strikes me as legally the better solution. Because if it is really true that a judge posseses the authority to modify a SCOTUS interim order while SCOTUS still holds the underlying case choas will reign--as the old saying goes: too many cooks spoil the broth.

Posted by: Daniel | Jul 8, 2017 12:01:23 AM

Guess again.


Posted by: Asher Steinberg | Jul 7, 2017 9:14:24 PM

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