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Sunday, October 01, 2017

More from Bray on universal injunctions

Two weeks ago, the Northern District of Illinois imposed a universal/nationwide injunction against the new funding conditions imposed against "sanctuary cities." The court justified the scope because there was "no reason to think that the legal issues present in this case are restricted to Chicago or that the statutory authority given to the Attorney General would differ in another jurisdiction." In a WaPo op-ed, Sam Bray argues that this represents the next step in making the universal/nationwide injunction the new, unjustified, default in constitutional litigation against federal law. An injunction should be nationwide unless the challenged law and legal issues are limited to the plaintiff or to the jurisdiction in which the action is brought--which never will be true of federal law. Sam calls on someone--Congress, the Advisory Committee, or SCOTUS--to stop the "remedial irresponsibility." This injunction is of a piece with another low-profile universal injunction issued in May in the Western District of Washington in a challenge to federal regulations of attorneys in immigration proceedings--the government's stated desire to continue enforcing the regulation was sufficient to justify the expanded scope, a basis that similarly applies to all federal law.

Unfortunately, I am not sure who is going to put the brake on this practice.

Expecting Congress to do anything is beyond wishful thinking.

SCOTUS has, implicitly and probably unthinkingly, approved the practice by affirming the universal injunction in U.S. v. Texas (the DAPA case) and by leaving the injunction in place as to those "similarly situated" to the plaintiff in IRAP (the travel ban case). Both decisions were bound-up with other procedural concerns. Texas was affirmed by an Segall-ian evenly divided Court . In IRAP the Court was trying to figure out how to remold the substantive injunction in the guise of granting cert. and staying the injunction pending appeal; it did not have the time or attention to consider injunctive scope in terms of plaintiffs protected. And with the case likely moot, we start all over again.

The Advisory Committee is an interesting actor that I had not considered. But it would take too long to get anything done, given the committee process. And the Committee may be as surprised as everyone else that this practice has become so pervasive--the current language of Rule 65 combined with the existence of Rule 23(b)(2) injunctive class actions should tell district courts that they cannot issue an injunction protecting everyone in a class without a class.

Posted by Howard Wasserman on October 1, 2017 at 10:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


See, that is the problem with the term "nationwide" injunction rather than "universal" injunction. "Nationwide" goes to where the injunction applies; universal goes to who is protected.

All injunctions are nationwide as to the plaintiffs, both individual and (as in Califano) class. If government is enjoined from enforcing a law against me, it cannot enforce against me anywhere--in Florida, in California, in a box, in a house, with a mouse; it applies nationwide. That is appropriate. (Although it is a separate question from whether a nationwide class is certifiable).

What courts are issuing here are *universal* injunctions, protecting every person in the universe against enforcement. That is inappropriate in individual cases (unless the relief is indivisible). Class certification overcomes the problem, by expanding who is and should be protected by the injunction.

Posted by: Howard Wasserman | Oct 3, 2017 7:25:36 PM

Thanks, Howard. I wasn't really thinking about your question--could an "injunction" or a "class" really apply to everyone in the country? I was just trying to think about the importance of class certification to your analysis and whether the stage of class litigation mattered. I suppose one could take the position that even national class actions raise concerns for nationwide injunctions, as the government did in Califano v. Yamasaki 442 U.S. 682, 702-03 (1979):

"We concede the force of the Secretary's contentions that nationwide class actions may have a detrimental effect by foreclosing adjudication by a number of different courts and judges, and of increasing, in certain cases, the pressures on this Court's docket. It often will be preferable to allow several courts to pass on a given class claim in order to gain the benefit of adjudication by different courts in different factual contexts. For this reason, a federal court when asked to certify a nationwide class should take care to ensure that nationwide relief is indeed appropriate in the case before it, and that certification of such a class would not improperly interfere with the litigation of similar issues in other judicial districts."

As for your question, I guess I can still imagine some situations where the remedy goes broader than the scope of the class. (I think Sam Bray might also say this.) For example, when a class alleges something that's theoretically indivisible, I could see a remedy apply to more than just the class members. So, if the government unreasonably delays action, fails to conduct notice and comment, fails to fully fund a mandatory program, or fails to depopulate an overcrowded prison, a court's order that the government acts, conduct notice and comment, fund that particular program, or admit fewer prisoners may inure to the benefit of people outside the class definition. There may be other cases where the judicial remedy is theoretically divisible, but so hard to administer separately, that I could see a court ordering relief that benefits more than just the class. An injunction against a complex regulatory scheme may fall in that category. Finally, there may be some situations where the relief is theoretically and practically divisible, but a failure to enlarge the scope of the injunction makes it simply impractical to enforce. (Maybe a class injunction against the use of certain additives that pollutes ground water in one state when the state is downstate from another.) Long way of saying: I can see cases where theoretical, administrative or practical indivisibility mean the injunction might extend beyond the class.

All my best.


Posted by: Adam Zimmerman | Oct 3, 2017 7:08:45 PM

That's a good question. I would say somewhere between 2 and 3. It's on firmer footing than an individual one, because a class injunction, once the class is certified, can protect the entire class; an individual injunction never should apply beyond the individual plaintiffs. I think a preliminary injunction covering the putative class nationwide would be ok.

But even then, the injunction should extend no further than the class (and then the class nationwide). So could a class really cover every person in the entire country?

Posted by: Howard Wasserman | Oct 3, 2017 5:02:59 PM


What's the status, if you know, of injunctions pursuant to *putative* class actions? In the DACA litigation, for example, there's litigation by state AGs, the UC regents and some other entities. But, in New York, Judge Garaufis has state AGs and a putative class action. And he's expressed skepticism over the government's position on the "arbitrariness" of the October 5 deadline.

If he enjoins the government, nationwide, is the injunction on (a) the same ground as when a judge decides an individual action, (b) firmer ground because it, at least, involves a putative class (but not solid ground until class is certified), or (c) solid ground because, given the exigencies and the average timetable for class discovery, it's okay to issue injunctions for putative classes (assuming the other grounds for preliminary injunction--likelihood of success and irreparable harm--can be met).

All my best.


Posted by: Adam Zimmerman | Oct 3, 2017 4:55:26 PM

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