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Tuesday, August 04, 2020

Second Circuit tries for solution to universal injunctions, misses the mark

The Second Circuit affirmed-but-narrowed an injunction prohibiting enforcement of the Trump Administration's public-charge regulation. As modified, the injunction is limited to the named plaintiffs (three states and several advocacy organizations) in New York, Connecticut, and Vermont (the Second Circuit), where the states are located and the plaintiff organizations do most of their work.

The court attempted to find a middle ground in the final five pages of the opinion, which I copy after the jump. But the court failed, in part because, as many courts, misunderstands the issues.

Here is the relevant portion of the opinion:

We have no doubt that the law, as it stands today, permits district courts to enter nationwide injunctions, and agree that such injunctions may be an appropriate remedy in certain circumstances – for example, where only a single case challenges the action or where multiple courts have spoken unanimously on the issue. The issuance of unqualified nationwide injunctions is a less desirable practice where, as here, numerous challenges to the same agency action are being litigated simultaneously in district and circuit courts across the country. It is not clear to us that, where contrary views could be or have been taken by courts of parallel or superior authority, entitled to determine the law within their owngeographical jurisdictions, the court that imposes the most sweeping injunction should control the nationwide legal landscape.

When confronted with such a volatile litigation landscape, we encourage district courts to consider crafting preliminary injunctions that anticipate the possibility of conflict with other courts and provide for such a contingency. Such approaches could take the form of limiting language providing that the injunction would not supersede contrary rulings of other courts, an invitation to the parties to return and request modification as the situation changes, or the limitation of the injunction to the situation of particular plaintiffs or to similarly situated persons within the geographic jurisdiction of the court.

We need not decide whether the able district judge in these cases abused his discretion in entering nationwide injunctions. Instead, we exercise our own discretion, in light of the divergent decisions that have emerged in our sister circuits since the district court entered its orders, to modify the injunction,limiting it to the states of New York, Connecticut, and Vermont. Cf. Smith v.Woosley, 399 F.3d 428, 436 (2d Cir. 2005). As modified, the injunction covers the State plaintiffs and the vast majority of the Organizations’ operations. We see no need for a broader injunction at this point, particularly in light of the somewhat unusual posture of this case, namely that the preliminary injunction has already been stayed by the Supreme Court, not only through our disposition of the case,but also through the disposition of DHS’s petition for a writ of certiorari, should DHS seek review of this decision. See New York, 140 S. Ct. at 599.

The court not only uses the wrong term ("nationwide" rather than "universal" or "non-particularized), but it conflates who and and where. It talks about the concern for conflicts with other courts, contrary rulings, and other issues that compel against non-particularized injunctions, then narrows the geographic scope while protecting only the parties. That is, the court issued a particularized injunction protecting only the parties, making it unnecessary to address the power to issue non-particularized/universal injunctions unnecessary.

The guidelines the court tries to impose make no sense. The court says a universal/non-particularized injunction is permissible where a single case challenges an action or multiple courts have ruled the same way. But it gives no reason why either situation justifies expanding the party scope and no guidance for when universality becomes ok. If multiple courts have ruled the same way, there is no need for one universal injunction, since individual plaintiffs in each of those cases have their remedies and do not need the new universal remedy. And it leaves most questions unanswered--How many courts must rule the same way? How many cases become too many to justify it? Can the first court issue a universal injunction if it can do so before other cases are filed?

Nor do the attempted limitations work. One is to provide that the injunction does not supersede a contrary ruling. But this does not provide parties with much guidance or reflect the practices of litigation. If Court I issues an injunction that might be universal--and we are taking universality seriously--there will not be a second litigation, because non-parties threatened with enforcement will not file a new lawsuit but will go to Court I to enforce the existing injunction that purports to protect them.  And the final limitation--"the situation of particular plaintiffs or to similarly situated persons within the geographic jurisdiction of the court"--again conflates who and where.

Finally, the injunction the court ends up with is insufficient as to the plaintiff organizations. The court says they do the "vast majority" of their operations within those states. But that ignores that some portion (however small) of their operations are outside those states and not protected by the injunction, leaving their injury (threat of enforcement of the regulations as to them) unremedied. And the court offers no good reason for leaving that bit of their rights unremedied.

It is a good effort by the court to wrangle and try to provide guidance on the issue. It fails because the courts cannot keep the real issues straight.

Posted by Howard Wasserman on August 4, 2020 at 08:30 PM | Permalink


Here quoting the court:

As the Plaintiffs point out, courts have long held that when an agency action is found unlawful under the APA, “the ordinary result is that the rules are vacated – not that their application to the individual petitioners is proscribed.

And more:

This aligns with the general principle that “the scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). Moreover, courts have recognized that nationwide injunctions may be particularly appropriate in the immigration context, given the interest in a uniform immigration policy.


Posted by: El roam | Aug 5, 2020 5:53:09 AM

Important, crucial, and repetitive as well. But, the court has explained it. Yet, didn't imply it:

The court explained on one hand, that the extent of violation of the agency, is what counts, not the parties or geographical scope. But, finally hesitated to extend it universally.

The court, agreed, that the rule or interpretation was arbitrary and capricious and contrary to the clear intent of the Congress. But, the procedure act is clear as hell:

A judge may set aside the action of one agency, if the action, is arbitrary and capricious. Set aside, and capricious and arbitrary, can't be reconciled with limited injunction of such.

There are three causes for such mess:

First, no clear guidance of the Supreme court yet.

Second, different federal courts, but, having the same hierarchical power. Means, sort of parallel jurisdiction.

Third, one of the factor for granting such injunction, is the "public interest". Yet, public interest is too vague. One needs to determine more specifically, the extent or degree of violation as the crucial factor, for granting universal one, or limited one.


Posted by: El roam | Aug 5, 2020 5:44:21 AM

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