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Wednesday, August 01, 2018

Ninth Circuit affirms less-than-universal injunction as to sanctuary-city funding

The Ninth Circuit on Thursday affirmed the injunction prohibiting DOJ from enforcing an executive order and regulations stripping federal law-enforcement funds from sanctuary cities, in an action brought by San Francisco and Santa Clara.

1) The case was justiciable, considering both standing and ripeness. The plaintiffs had standing because they had policies in place that, under the executive order, would be a basis for withholding funds. That the regs might not be enforced did not eliminate the injury; it was enough that the plaintiffs' interpretation of the regs was correct and could subject them to consequences or to having to change their policies. The action also was ripe. The court pointed to statements by various Trump Administration officials warning about enforcement, with California and its municipalities as an express target, as well as a history of federal grants conditioned on compliance with certain immigration laws. The ripeness point prompted a dissent. Focusing on the order's requirement that any federal action be "consistent with law," the dissent argued that the counties do not face any imminent threat of loss of funds because they have not shown an intent to violate § 1373 and the EO did not order DOJ to enforce the funding regulations in a manner inconsistent with the law.

2) The court affirmed the injunction, but limited it to prohibiting enforcement against the plaintiffs and the State of California. While rejecting DOJ's argument that universal injunctions are per se improper, the court found that the plaintiffs did not offer sufficient evidence of an effect beyond themselves and the State. The court's analysis was inexact but it did hit on a situation in which an injunction should protect beyond the named plaintiffs. Santa Clara and San Francisco offered evidence that their law-enforcement budgets depend on money from the State, which gets some of its money from the DOJ grant program; complete relief for the plaintiff counties thus depended on the regs not being enforced against California.

But while appropriate, this should be a narrow and unique exception to particularity. And the court showed it did not recognize that narrowness when it remanded for the district court to allow the plaintiffs to offer evidence of a universal effect. Although not a party, California was a unique non-party because some of the money it would get from DOJ (and which it would lose under the regs) would be passed to the plaintiffs. No other sanctuary jurisdiction would, if stripped of funds, have the same effect on the plaintiffs' budgets; therefore, stripping funds from no other jurisdiction could render their relief less than complete. For example, if San Francisco does not get money from the State of Oregon or the City of Boston, then enforcement of the funding regs against those cities does not deny San Francisco complete relief.

Posted by Howard Wasserman on August 1, 2018 at 04:35 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Courts will issue class-wide preliminary injunctive relief before certifying the class. Which makes sense. The purpose of the P/I is to preserve the status quo pending litigation, so the P/I should account for the full scope of the litigation, including the plaintiff class.

But most of the cases that are drawing attention (travel ban, sanctuary cities) were not brought as class actions. So the universality of the practice doesn't matter to the individual plaintiff. The only thing that matters is enforcement and injury to the plaintiff.

This shouldn't be understood as some Solomonic splitting of the baby. This should simply be proper application of the concept of "complete relief"--San Francisco does not get complete relief if California loses its funding, because SF gets funding from California. But SF gets complete relief even if, say, Portland, loses its funding.

Posted by: Howard Wasserman | Aug 6, 2018 10:42:12 AM

As a side issue on universal injunctions — "side" because I've seen little attempt to use this — presuming that political subdivisions can pass scrutiny under FRCP 23(a) (and their counsel, too, who usually have less than zero* experience representing plaintiffs in an actual class action), would a universal injunction be more appropriate if:

(1) a class certification motion had been heard and granted?

(2) a class certification motion had been filed, but not yet heard?

(3) the complaint on its face requests certification of an at-first-glance cognizable class, but not motion has yet been filed (perhaps because this is an extension from a TRO)?

On first reading, I'd be comfortable with a universal injunction in (1), considering in (2), and really confused in (3) even as to the court's power (even though Rule 23 says class certification is supposed to be determined as soon as "practicable," that usually means after significant if not complete discovery and considerable paperwork) unless the court somehow made an emergency preliminary determination that certification "appeared" appropriate. Remember, too: many landmark cases that we don't think of that way, and resulted in sweeping universal-like declarations, were class actions (e.g., Brown v. Topeka Board of Education).

On these facts, I think this really boils down to "How much evidence must there be of wide-ranging or universal practice, or conscious policy, before we can make something universal that hasn't been requested as universal at the outset?" It's an uncomfortable "Parklane Hosiery before judgment" situation — uncomfortable in that I don't see a fair, rule-based (or even standard- or aspiration-based) framework that applies beyond small categories of cases, and the more division into categories there is the more room for argument of "mischaracterization" there is.

Whether one agrees with every aspect of the Ninth Circuit's reasoning or not, I think its Solomanic exercise was a defensible splitting of the baby in this particular case; the problem will be misapplication of this decision as precedent in later matters of dubious comparability. So perhaps the Court would have been better off issuing a "nonprecedential order"?

* "Less than zero" because their experiences are of enforcing policy by fiat and direction from a single political directive, which is rather the opposite of actively representing specific interests of a class... and their exposure to class actions has been as defendants trying desperately to avoid certification.

Posted by: C.E. Petit | Aug 2, 2018 12:32:53 PM

While I tend to lean towards the cities' view on the merits I strongly disagree with the ripeness claim and I thought the majority's view on that point was wholly unpersuasive. Because I thought that, the majority's opinion looked to me like a desperate reach to get to the merits in order to make a political rather than a legal point.

Posted by: James | Aug 1, 2018 7:32:50 PM

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