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Friday, August 16, 2019
Nomenclature and the real issue on the scope of injunctions
A Ninth Circuit panel refused to stay a preliminary injunction prohibiting enforcement of new asylum regulations. But a divided court narrowed the injunction from its "nationwide" scope to the extent it applies "beyond the Ninth Circuit," because the district court had not found that beyond-the-circuit scope was necessary to remedy the plaintiffs' harm. The decision, while proper, illustrates the importance of the problems of nomenclature and the misunderstanding of what is at stake.
The plaintiffs in the action were four California-based organizations that represent asylum-seekers; the district court found they had organizational standing because they would lose clients and funding and be forced to divert resources as a result of the regulation.*
[*] The district court also found the organizations within the statutory zone of interest, although that no longer should be part of the standing analysis.
The focus of the scope-of-injunction analysis thus should have been the four organizations, not California. The injunction should have been limited to prohibiting enforcement as to these organizations. But it should have protected those organizations everywhere in the country--states within the Ninth Circuit as well as any other states in which they may represent (or seek to represent) asylum-seekers. Perhaps that means the injunction would reach California and Arizona only, if these organizations only represent clients in those states; outside-the-states application is not necessary to remedy their harm if they do not work outside those states. But to the extent they work outside California and Arizona, their harm is remedied only if the injunction protects them outside of Ninth Circuit states.
And that is why the term "nationwide" does not work. All injunctions should be nationwide in the sense of protecting the plaintiffs wherever in the nation they are--that is the only way to remedy their harm. The problem in this case (and others) is that the district court's injunction purported to prohibit the government from enforcing the regulation beyond these four organizations. The problem is that the injunction was not "particularized" to the parties to the case, but attempted to apply to the "universe" of people and organizations affected by the regulation.
The court thus should have "grant[ed] the motion for stay pending appeal insofar as the injunction applies" beyond the four plaintiff organizations in this action.
Posted by Howard Wasserman on August 16, 2019 at 02:25 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink
Comments
Howard writes, "Even if it didn't, that geographic line makes no sense, because it would require the same plaintiffs to bring the same claims against the same defendants in every circuit to get complete relief (although preclusion should come into play there, since it would not be non-mutual). That can't be the requirement."
Howard says it "can't" be the requirement but it seems to me that his proposal should be the requirement.
Posted by: James | Aug 18, 2019 11:15:19 PM
If there is an attempt at enforcement of the reg, the plaintiffs go to the court issuing the injunction to get an order enforcing the judgment (or not enforcing the judgment). That is how injunctions are supposed to work.
It doesn't hurt other organizations, because those organizations don't have their own injunction--which, of course, they could get.
Posted by: Howard Wasserman | Aug 18, 2019 7:10:44 PM
So how could one particularize an injunction such as this to the organizations in the lawsuit assuming there are other organizations across the US engaged in a similar practice and that who will engage *any* of these organizations can't be determined if the regulations are applied to them?
I mean you can't say that only clients of these organizations get the benefit of the injunction. First, if you don't apply the injunction to someone you may deny them the chance to become a client. Second, if you create a special rule which says only people who indicate an intent to become clients of these organizations get this benefit this imposes a judge made harm against all other organizations competing for clients.
Posted by: Peter Gerdes | Aug 18, 2019 4:39:26 PM
Anon: That is why many people argue *in favor* of universal/non-particularized injunctions in cases involving organizations--it is impossible to figure out who the organization is protecting, so make the injunction universal. I think that issue should be litigated at the point of enforcement not at the point of defining the injunction, but the concern goes the opposite way you suggest.
Even if it didn't, that geographic line makes no sense, because it would require the same plaintiffs to bring the same claims against the same defendants in every circuit to get complete relief (although preclusion should come into play there, since it would not be non-mutual). That can't be the requirement.
Posted by: Howard Wasserman | Aug 17, 2019 11:01:18 AM
Perhaps the Ninth Circuit's concern was one of administrability. If the panel had granted the motion for stay pending appeal insofar as the injunction applies beyond the four plaintiff organizations, how would asylum applicants demonstrate that they were associated with one of the four plaintiffs? To what extent would one of the organizations have to help the applicant before the applicant was exempt from the regulations (would giving them a list of asylum attorneys be sufficient)? As word got around, wouldn't all applicants across the country simply tell asylum officers that they were being helped by one of the plaintiffs?
These concerns make me think that the court did not "misunderstand[]" what was at stake, but instead believed that a geographic injunction was the most practical solution.
Posted by: Anon1 | Aug 16, 2019 11:52:27 PM
Other than the point about Mendoza, I was deeply perplexed in glancing at the opinion about why the panel thought circuit boundaries were the proper dividing line. You talk about California and Arizona, but the Ninth Circuit also includes Alaska, Hawaii, Nevada, Montana, Idaho, Oregon, Washington, and two territories. There may be arguments against extra-circuit application qua extra-circuit application, but are there any positive reasons for application within the entire circuit?
Posted by: Asher | Aug 16, 2019 6:01:38 PM
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