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Thursday, December 24, 2020

Third-party universality

A judge in the Northern District of California has universally enjoined the President's Executive Order on diversity training. Plaintiffs are several non-profit LGBT education and advocacy organizations that do trainings and education programs for local businesses, governments, and health-care providers. These programs cover systemic bias, anti-racism, white supremacy, and other issues the EO attempts to stop. The court held that the EO violates the First Amendment.

The court made the injunction universal/nationwide, based on third-party effects. "Permitting Plaintiffs to provide training regarding “divisive concepts,or to promote those concepts,would do Plaintiffs little good if their sources of employment and funding remain subject to the Executive Order." Pointing to evidence of third-party cancellation of programs in which the plaintiffs were scheduled to participate, "[i]njunctive relief is necessary to allow third parties to hire and/or fund Plaintiffs without fear of violating the Executive Order."

Third-party effects can expand the scope of a particularized injunction, in the sense of protecting those with whom the protected plaintiff engages in its protected capacity. For example, the injunction stopping enforcement of the Muslim travel ban as to the University of Hawaii protected actual and potential students; the injunction stopping enforcement as to HIAS protected actual and potential HIAS clients. Similarly, the court is correct that protecting these plaintiffs requires protecting those who do business with them.

But it did not follow that the injunction stopping the travel ban should protect other state universities, other immigration organizations, or other potential immigrants who have nothing to do with those plaintiffs. Similarly, it does not follow that this injunction must protect other training providers who have nothing to do with these plaintiffs or other entities who do not and would never do business with the plaintiffs. Giving relief to other grantees/contractors, who have nothing to do with the plaintiffs, is not necessary to give the plaintiffs complete relief.

Posted by Howard Wasserman on December 24, 2020 at 01:04 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Interesting case. So, on merits, it doesn't seem, as if defendants have good chance to win here. Notwithstanding, worth noting, that the Plaintiffs, or their activity, is spread all over the nation. So, looks as if nationwide injunction here is necessary. I quote from the ruling:

" Moreover, Plaintiffs are located across the country and serve widely dispersed populations.
See Papo Decl. ¶ 5 (Plaintiff Diversity Center serves Santa Cruz, California and surrounding area),ECF 51-1; Davis Decl. ¶ 1 (Plaintiff AFC serves Chicago, Illinois), ECF 51-2; Shanker Decl. ¶ 3(Plaintiff Bradbury-Sullivan Center serves the Greater Lehigh Valley, Pennsylvania), ECF 51-4;
Brown Decl. ¶ 1 (Plaintiff Brown Consulting located in Michigan), ECF 51-5; Riener Decl. ¶ 2
(Plaintiff CrescentCare serves New Orleans, Louisiana area), ECF 51-6; Cummings Decl. ¶ 1
(Plaintiff Los Angeles LGBT Center serves Los Angeles, California), ECF 51-7; Meyer Decl. ¶ 4
(Plaintiff SAGE is headquartered in New York, New York), ECF 51-8. The Ninth Circuit held in
a recent case that the district court had not abused its discretion in issuing a nationwide
preliminary injunction where – as here – the plaintiff organizations did “not operate in a fashion
that permits neat geographic boundaries.” E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242,
1282-83 (9th Cir. 2020). This Court likewise finds in the present case that an injunction limited to the Northern District of California, or otherwise geographically limited, would be neither feasible nor sufficient to afford Plaintiffs complete relief. Accordingly, the Court concludes that a nationwide injunction is warranted."

By the way, the link posted, leads somewhere else it seems. Not to the ruling. Here link to the ruling:



Posted by: El roam | Dec 24, 2020 1:52:45 PM

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