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Thursday, June 18, 2020

Avoiding universality, again

The DACA decision again avoided the scope-of-injunction issue and the propriety of universal/non-particularized injunctions, in a clever way. The Court consolidated three cases--two (from New York and the Second Circuit and California and the Ninth Circuit) had entered universal injunctions prohibiting enforcement of the rescission order, while one (from the D.C. Circuit) had vacated the DHS order rescinding DACA. Only the Ninth Circuit decided the appeal and affirmed the injunction (the others were taken on cert before judgment) and the Ninth Circuit was the "lead" case in the caption. But the majority focused its review on the D.C. case that vacated the rescission under the APA without issuing an injunction. Affirming vacatur of the rescission order meant there was no rescission order, therefore nothing to enjoin. It became unnecessary to consider the propriety of the "nationwide" (unfortunately) scope of the injunction.

This may mean that resolution of the scope-of-injunction question is not on imminent, as I am not aware of any cases on SCOTUS's horizon squarely presenting the question. A reader points out that scope-of-injunction is at issue in Little Sisters of the Poor. If--as happened today and in the census case--the Chief joins the four liberals to hold that the Trump Administration messed up the APA, universality may be unavoidable.

Posted by Howard Wasserman on June 18, 2020 at 12:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


Marty: In practice, you are right. But, assuming one buys some version of departmentalism (such as the one I have been pushing), that is not formally the case. The agency *could* continue to enforce against someone, if it were willing to keep losing once it returned to court. Also, I think there is some value to recognizing when the result you (rightly) describe is happening pursuant to the judgment/injunction and when it is happening as a matter of precedent.

Posted by: Howard Wasserman | Jun 19, 2020 1:08:39 PM

This has been my point all along: That once the SCOTUS decides the legal question--here, that the rule was arbitrary and capricious--this entire academic debate about "universal" injunctions and the nature of the remedy is simply beside the point, because of course the agency won't then try to enforce its rule against *anyone*. And therefore in these cases, the entire debate is only about what the state of affairs will be during the few months while the case is percolating up for a final SCOTUS decision.

Posted by: Martin Lederman | Jun 19, 2020 12:13:31 PM

I thought there was a raging controversy between people like Mila Sohoni* and people like John Harrison about whether the APA's remedy of vacatur actually can, permissibly, apply to non-parties. So I don't know why the Court didn't need to confront that question.

* https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3599266

Posted by: Asher Steinberg | Jun 18, 2020 6:28:23 PM

Even if the APA authorizes vacatur of unlawful agency actions, what difference is there between this remedy and universal injunctions as an Article III matter? Both have the practical effect of precluding enforcement against non-plaintiffs and both alter the government's formal legal position relative to non-plaintiffs. If Article III prohibits remedies that go beyond what is necessary to protect the plaintiff (Bray's "plaintiff-protective principle"), vacaturs would seem to suffer from the same constitutional defect as universal injunctions. Do you agree? I think Bray and Bagley actually make this argument in an amicus brief in Trump v. Pennsylvania, though the Court will not need to reach this question if it decides for the government.

Posted by: ABC | Jun 18, 2020 5:34:35 PM

In a normative sense yes, although I do not know enough Ad Law to know if it holds up descriptively.

I read the APA as authorizing federal courts (especially the DDC and DC Cir) to operate as a sort-of Council of Revision for regulations, with the power to erase a regulation and force the agency to start over. This is different than an injunction, which prohibits enforcement of the regulation without erasing it.

Statutes do not have the same system. The only thing a court can do is enjoin enforcement.

Posted by: Howard Wasserman | Jun 18, 2020 3:43:18 PM

Howard - The Court seemed to think there was a difference between (1) an injunction prohibiting an agency from implementing the agency's rescission order against anyone, and (2) an order vacating the agency's rescission order.

Do you see any doctrinal or real-world difference between the two?

Posted by: Slippery Slope | Jun 18, 2020 3:33:05 PM

I stand corrected.

Posted by: Howard Wasserman | Jun 18, 2020 2:50:18 PM

The scope-of-injunction question is raised by Q3 in Trump v. Pennsylvania: https://www.scotusblog.com/case-files/cases/trump-v-pennsylvania/

Also note that the DOJ's position is that the vacatur remedy also presents a scope-of-relief question. See Sohoni, The Power to Vacate a Rule, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3599266

Posted by: Zach | Jun 18, 2020 2:40:19 PM

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