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Friday, June 14, 2019

This is how you establish broad injunctive relief

The D.C.Circuit affirmed part of an injunction prohibiting enforcement of an ORR policy barring unaccompanied children from obtaining pre-viability abortions.

This is the type of case in which many courts have been issuing universal injunctions, despite that enforcement against non-plaintiffs does not affect individual plaintiffs. But the district court here took the procedurally appropriate approach--certifying a 23(b)(2) class of "all pregnant, unaccompanied immigrant minor children (UCs) who are or will be in the legal custody of the federal government," then enjoining enforcement of the policy as to class members. We get to the same place, but through appropriate procedures, as it should be for a system in which constitutional review occurs within the scope of civil litigation. This is why the Court enacted 23(b)(2).

The majority opinion (per curiam for two judges) runs more than 70 pages. It applies the "inherently transitory class" exception to avoid mootness and considers the effect of the "one-good plaintiff" rule in multi-party individual actions as opposed to class actions. It spends a lot of time on the appropriate scope of the class, as opposed to the appropriate scope of the injunction--which is where the focus should be.

There is an interesting interplay between the inherently transitory and capable-of-repetion-yet-evading-review doctrines as to mootness, in that the former justifies the limits on the latter. C/R/E/R requires that the harm be capable of repetition as to the plaintiff; it is not enough that someone else might be subject to the harm. Protecting beyond the plaintiff requires a class, which is when the former doctrine kicks in. That leaves a gap--mootness cannot be avoided in an individual action to prevent harm to a non-party who may be subject to enforcement of the challenged regulations. But that is the point--the court provides remedies for parties, through the procedural mechanisms for establishing parties.

The government faces a choice. Justice Kavanaugh is recused because he was on the first panel to consider this case (the majority opinion discusses and rejects the position Kavanaugh took as to allowing the government to delay the procedure). So review would almost certainly produce an evenly divided Court affirming the lower court. So the government's best option is to obey the injunction, stop enforcing the policy and/or come up with a new policy, and hope that Justice Ginsburg retires.

On that note, a question for judicial-recusal experts. Imagine the following: ORR amends its policy to something slightly less restrictive and threaten to enforce it; plaintiffs return to the district court with a motion to enforce the injunction and/or an amended complaint, arguing that the new policy violates the rights of the same class; district court grants the motion and modifies the injunction to prohibit enforcement of the new policy; D.C.Circuit affirms. Must Kavanaugh recuse? The challenge is to a different policy. But it is the same litigation in which he ruled as a lower-court judge. Thoughts?

Posted by Howard Wasserman on June 14, 2019 at 04:39 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Just clarification to my first comment:

I have written there, that if a judge wasn't partial at first place, why would he be in an appeal. One may claim on one hand that:

He has ruled so. It is so established. His mind then is fixed. He has already partial opinion about the case. Seemingly correct. But only seemingly:

This is because, one may argue on the other hand, that: what his mind is fixed on, is the previous factual and legal configuration, yet, while appealing, a new configuration has been formed. Why ? simply because the appeal itself, is forming re consolidation of the configuration. So, first tribunal for example, is delivering its ruling. In light of the ruling, the lawyer of one side for example, is forming new line of arguments, attacking it for example. So, the attack itself, is forming new round, based on new consolidation and formation of the case,differentiated from the first round.

And although not the issue of the ruling presented in the current post,it is important to note, once again:

That the political stance of one judge or political consequences of his ruling, can't be subject for recusal ( like posted here not once by other bloggers ). It is not even permissible for a judge to do so. I shall quote Justice Scalia from the ruling I have left down there, here quoted:

" To expect judges to take account of political consequences—and to assess the high or low degree of them—is to ask judges to do precisely what they should not do. It seems to me quite wrong (and quite impossible) to make recusal depend upon what degree of political damage a particular case can be expected to inflict."

P.S : very recommended ruling.


Posted by: El roam | Jun 15, 2019 10:32:41 AM

By the way,he who wants,can read that memorandum of Justice Scalia at the time,in that motion to recuse himself in Cheney v. United states district court ( Columbia ),here:


Posted by: El roam | Jun 15, 2019 6:57:40 AM

Just correcting it:

There is another provision from:

28 U.S. Code § 47. Disqualification of trial judge to hear appeal
U.S. Code

Dictating so:

"No judge shall hear or determine an appeal from the decision of a case or issue tried by him."

Yet, we might have an issue, for what is written is " judge" not justice. The lawmaker, has clearly differentiated ( as stated ) between : judge, justice, magistrate and so forth... I shall check further and check it out more precisely.


Posted by: El roam | Jun 15, 2019 6:28:28 AM

Very important, very interesting. Concerning recusal, this may be a problem. One may read the provisions as supporting it,but not really conclusively, here I quote from:

28 U.S. Code § 455 - Disqualification of justice, judge, or magistrate judge


(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

So, this is a residual provision, but, too broad then. One should ask whether " might reasonably be questioned " touches such case. Because, if as a judge, he was at first place, presumably impartial, why would he be now ? And anyway, it is up to him, to disqualify himself. And more, I quote:

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

So, here one may suggest, that he doesn't have personal bias ( concerning a party ) but then, if he has personal knowledge of disputed evidentiary facts, then, it is more concrete and demanding. But, facts here in that case, are less crucial it seems, but rather, questions of law or procedure.

Any way, more importantly, is the dissenting opinion. Very interesting. Judge Silberman, argues as follows ( and I think would reach it so in the Supreme court, for, based upon precedents of the Supreme court indeed ):

That It is one think to include in the class action, members, that don't oppose the ruling, and not affected by the ruling or the injunction ( making or not abortion, and more specifically, those that want to come to term with pregnancy ) yet:

It is another thing, to force them, to be included, in a group, that is supporting abortion, while, for religious and ideological reasons, they oppose it actually. They can't fit then, in no way, to be included in such group as members of class action. Here I quote:

It would be willful blindness not to recognize that any randomly selected group – particularly one drawn largely from countries with substantial Catholic populations – would include women who fiercely oppose abortion as murder. In other words, once it is realized – and I think we can take judicial notice of it – that a number of the pregnant minors are likely to have moral/religious convictions that abortion is murder, that is a powerful reason to conclude the class is improperly certified. But – and this is important – I do not argue that the class is improperly certified only because it includes minors who have moral/religious objections to abortion. That a number are likely to have religious objections just illustrates the lack of commonality.

By the way, the ruling can be reached here:



Posted by: El roam | Jun 14, 2019 6:49:55 PM

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