Do Class Actions Circumvent SCOTUS Ruling Against Universal Injunctions or Solve the Problems Associated With Such Injunctions?
The recent SCOTUS decision in Trump v. CASA forbids federal district courts from issuing universal (sometimes called "nationwide") injunctions against the government except where necessary to grant complete relief to the parties. As readers may recall, Justice Barrett, writing for the majority, invoked the principle announced for the Court by Justice Scalia 26 years earlier in Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc. -- namely, that absent congressional authorization, federal courts can only grant equitable remedies that were traditionally granted by courts of equity at the nation's founding.
Much of the disagreement between the majority and dissent concerned whether the traditional "bill of peace" was sufficiently like a universal injunction to validate the latter under the Grupo test. Justice Barrett thought that class actions are the descendants of bills of peace. Justice Sotomayor, for herself and Justices Kagan and Jackson in dissent, took the view that while a class action has some of the characteristics of the traditional bill of peace, so does the universal injunction--and thus the fact that Congress and the Rules Advisory Committee established procedures for class actions in Federal Rule of Civil Procedure 23 does not mean that a bill of peace cannot also serve as the historical antecedent that validates the universal injunction.
But other than pointing to class actions as a means of deflecting the dissent's and the respondents' arguments based on the bill of peace, Justice Barrett's lead opinion did not say much about whether, and if so, how, a class action can be used to obtain much of the same relief that has heretofore been available via universal injunctions. Nor, as she noted for the Court in footnote 10 of CASA, did the Court decide the extent to which vacatur pursuant to the Administrative Procedure Act (APA) might also be a substitute for a universal injunction.
Even if vacatur generally is an option, it wouldn't have been immediately available in a case like CASA, which involved action by the president, because the president isn't an agency within the meaning of the APA, but it is easy to see how, in a great many future cases, vacatur could be used to circumvent CASA's restrictions on universal injunctions. The underlying executive order (EO) in CASA purports to change the longstanding understanding of Section 1 of the 14th Amendment. A litigant suing under the APA could sue an agency or head of an agency--such as the Department of Homeland Security--with implementation authority for the policy.
In a future essay, I might return to the APA as a means of circumventing CASA, but for now I want to focus on class actions, because in the wake of CASA, plaintiffs challenging the birthright citizenship EO quickly pivoted to the class action approach. Last week, Federal District Judge Deborah Boardman certified a class of what amounts to all persons subject to the executive order and issued a temporary restraining order and preliminary injunction against enforcement of the EO.
That makes four such overlapping injunctions currently in effect. Two weeks after the ruling in CASA, Federal District Judge Joseph Laplante provisionally certified the same class that Judge Boardman would later certify and granted (but stayed) preliminary injunctive relief. Meanwhile, two universal injunctions were issued or renewed post-CASA on the ground that universal injunctive relief was necessary to grant complete relief to the parties, thus falling into the exception for such cases recognized in CASA. Needless to say, however, none of this is the last word.
And also needless to say, that last word (absent extremely unlikely action by Congress), will come from the Supreme Court. Will it allow class actions challenging the birthright citizenship EO (and other executive branch policies) where it has disallowed universal injunctions? That question arose during one of the panel discussions in which I participated last week at the PLI Supreme Court Review session. There was some friendly and nuanced disagreement among the panelists.
Prof. Schwartz, for his part, thought that the argument for allowing a class action of the sort that two federal district courts have now allowed is straightforward. FRCP 23(b)(2) authorizes class actions where the 23(a) criteria are met and where "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Here, that's the president and his administration: they are taking a uniform approach in denying citizenship to the class as a whole, easily identifiable pursuant to the terms of the EO.
Judge Rakoff thought that nonetheless, as a practical matter, there would be substantial delays in obtaining class certification. He acknowledged that two judges have thus far certified quickly, but he pointed to case law in various circuits and potentially at the Supreme Court that could suggest the need for additional steps in most cases.
I found myself agreeing with both of them. I agree with Prof. Schwartz that a 23(b)(2) class should be easy to certify in cases challenging the birthright citizenship EO and other actions of the current administration. But I also agree with Judge Rakoff that there's a very substantial risk that either SCOTUS or one or more federal appeals courts could insist on additional hurdles that make certification difficult.
Exactly how they would do that is unclear. Perhaps a court would require extensive notice--even though in a 23(b)(2) case there is no ability of class members to opt out (by contrast with the ability of class members to do so in a 23(b)(3) case), and thus no genuine need for extensive notice. (In addition, everyone who is in the class is either an infant or hasn't yet been born, so notice to the class is either pointless or impossible.)
Another possibility is that some number of judges or justices could lodge objections pursuant to the 23(a) criteria. It's possible, for example, to argue that children born to non-citizen parents who are legally but temporarily present in the United States have a stronger claim to fall within the heartland of United States v. Wong Kim Ark than do children born to undocumented immigrants. If so, a single class representative would not have claims that are exactly "typical" of all plaintiffs, as required by 23(a)(3).
To be clear, I'm not saying that would be a good objection. To my mind, both sets of plaintiffs have strong and very similar claims to fall within the scope of Wong Kim Ark and federal legislation. Moreover, even if one disagreed, the easy fix would be to designate two sub-classes, each with its own named class member and legal representation. What I am saying is that if a federal appeals court judge or SCOTUS justice were intent on throwing sand in the gears of a class action, there are various bad but superficially plausible means they could use.
And indeed, there is reason to worry about that sort of maneuver. Concurring in CASA, Justice Alito, joined by Justice Thomas, said this:
[D]istrict courts should not view today’s decision as an invitation to certify nationwide classes without scrupulous adherence to the rigors of Rule 23. Otherwise, the universal injunction will return from the grave under the guise of “nationwide class relief,” and today’s decision will be of little more than minor academic interest.
As I've indicated, I believe that a district court should be able to certify a class action challenging something like the birthright citizenship EO quickly because the "rigors of Rule 23" aren't--or at least shouldn't be--especially rigorous when a non-opt-out class seeks certification to challenge action and presents a pure question of law. But it's clear that Justices Alito and Thomas don't think that. They want Trump v. CASA to stand for the proposition that district judges should almost never issue injunctions with nationwide effect.
There are at least three problems with the Alito/Thomas view.
First, I'm hardly the only observer to have noticed that the Court did not prevent lower courts from issuing universal injunctions against Democratic presidents.
Second, Justices Thomas and Alito joined Justice Barrett's majority opinion, which, as noted above, treated the modern class action as the rightful heir to the bill of peace. That's not, strictly speaking, inconsistent with insisting on dotting the i's and crossing the t's when resorting to a class action, but there's something a bit fishy about saying (as Justices Thomas and Alito did by joining Justice Barrett's opinion) that universal injunctions aren't available because the class action, not the universal injunction, is the heir to the bill of peace, and then saying that class actions shouldn't be allowed lest they circumvent the prohibition on universal injunctions.
Third, one of the main arguments against universal injunctions is that, as the government argued in CASA, they "operate asymmetrically: A plaintiff must win just one suit to secure sweeping relief. But to fend off such an injunction, the Government must win everywhere." The class action solves that problem. There are no opt-outs of 23(b)(2) class actions, so the stakes are symmetrical: if the plaintiffs lose on the merits in a class action, that precludes additional lawsuits by other class members in other venues. Thus, if one thinks universal injunctions are unfair to the government, class actions are part of the solution, not simply a way of circumventing a prohibition.
Admittedly, shifting to a class action doesn't solve every problem with universal injunctions. The likelihood of forum-shopping remains. But that's less problematic in a case like the ones challenging the birthright citizenship EO than in some other settings, because the issue presented is a pure question of law, as to which the district court gets no deference. True, getting before a friendly district court judge means the plaintiffs will likely get interim relief, but both the courts of appeals and the Supreme Court have shown recently that such relief will be quickly stayed if the higher-ups disapprove.
I suppose one might think that this last set of objections misses the mark because Justice Barrett says for the majority that her opinion is not based upon the policy pros and cons of universal injunctions. She writes that "as with most questions of law, the policy pros and cons are beside the point." Such hyper-formalism of the just-umpires-calling-balls-and-strikes variety is difficult to take seriously, but if it were true, then Justices Thomas and Alito--who joined the majority opinion in full--would have no business restricting class actions in the service of defending the Court's policy choice to restrict universal injunctions.
Bottom line: CASA's limits on universal injunctions should not apply to class actions; whether they or likewise stringent limits will be applied remains to be seen.
--Michael C. Dorf