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Thursday, June 24, 2021

Another bad universal injunction decision

A new exhibit in the MUIGA (Make Universal Injunctions Great Again) campaign: Judge Howard (a GWB appointee) of the Middle District of Florida universally enjoined (even though she says nationwide, because judges cannot get this right) the socially disadvantaged farmers and ranchers provision of the American Rescue Plan Act. That provision sets money aside for loan forgiveness and other aide for farmers and ranchers from historically disadvantaged groups. The lawsuit was brought by one white farmer in Florida.

The scope portion followed the usual pattern: Hand-wringing about the "great caution" required before issuing a universal injunction, plus citations to Thomas and Gorsuch questioning the authority to do so. Then this is the complete analysis:

Plaintiff has shown a likelihood of success on the merits of his claim that Section 1005 is unconstitutional and, if implemented, would deprive him of his right to equal protection under the law. The implementation of Section 1005 will be swift and irreversible, meaning the only way to avoid Plaintiff’s irreparable harm is to enjoin the program.

Once again, the justifications offered for universality cover every case--what program, that appears to violate someone's equal protection rights, is not implemented in a "swift and irreversible" manner? This would mean that any program that would deprive a plaintiff of his rights must be universally enjoined, unless the program someone will not be swiftly implemented. Is there something uniquely swift and irreversible here, where other programs will be implemented slowly and reversibly? The court never explains.

The bigger problem is that there is an obvious non-universal remedy that would accord complete relief: Give the plaintiff--and only the plaintiff--access to the program. That remedies the constitutional violation of treating him differently because of his race and the injury of his exclusion from the program. Nothing more need be done to protect or vindicate the plaintiff's rights.

There might be an argument that universality is necessary because the pool of money is limited and affected by the number of applicants; there is $ X to be distributed, divided by the number of applicants, so universality is necessary until we can determine the number of constitutionally eligible applicants. If money continues to be distributed, that will reduce the amount plaintiff can recover. This was the theory behind universality in the sanctuary-cities cases: Requiring that San Francisco receive funds but allowing Chicago to continue to be denied funds does not allow a proper determination of amount and would mean that, upon final resolution, there might be no funds left for Chicago. But that does not appear to be the case here--the pool is not limited and funds are means-tested, so the amount recovered is determined by each applicant's circumstances, not the number of applicants. In any event, the court never discusses this or offers this as the explanation.

Compounding what appears to be the judge's misunderstanding of universality, she adds a footnote saying she "reaches this conclusion without regard to any incidental benefit to other similarly situated White farmers." This is nonsense. By making the injunction universal, she accords more than incidental benefit to other white farmers--she has made them direct beneficiaries of the injunction, on par with the plaintiff.

There is another way of looking at this case: The plaintiff does not seek the debt relief available under this section, but seeks to stop the government from giving that relief to anyone else. On that understanding, complete relief comes not from making the plaintiff eligible for the funds, but from stopping the award of funds to anyone.

But the plaintiff should not have standing to seek that remedy--he is not injured by some people receiving a benefit that he is not interested in receiving. The court cites Gratz  to identify the equal-protection injury as "the inability to compete on an equal footing." But if the plaintiff's injury here is the inability to compete for the funds on an equal footing, it can be remedied by allowing him to compete for funds; an injunction stopping everyone else from receiving funds is not commensurate with the violation. This case looks like a lawsuit by someone who has no interest in attending the University of Michigan seeking to enjoin the University of Michigan from considering race of people who are interested in attending the University of Michigan. Equal protection standing should not extend that far.

Posted by Howard Wasserman on June 24, 2021 at 09:46 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink

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