Amicus Curiae Brief — Alejandro N. Mayorkas, Secretary of Homeland Security, et al., Petitioners v. Innovation Law Lab, et al.

Supreme Court briefJan 22, 2021

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No. 19-1212

IN THE

Supreme Court of the United States

___________

CHAD F. WOLF,

ACTING SECRETARY OF HOMELAND SECURITY, et al.,

Petitioners,

INNOVATION LAW LAB, et al.,

Respondents.

___________

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

___________

BRIEF FOR PROFESSOR MILA SOHONI

AS AMICA CURIAE IN SUPPORT OF

RESPONDENTS

___________

DAVID S. KANTER

KARMA O. FARRA

LAURA C. SORICE

SIDLEY AUSTIN LLP

787 Seventh Avenue

New York, NY 10019

(212) 839-5300

CHRISTOPHER M. EGLESON*

SIDLEY AUSTIN LLP

555 West Fifth Street

Los Angeles, CA 90013

(213) 896-6108

cegleson@sidley.com

Counsel for Amica Curiae

January 22, 2021

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

INTEREST OF AMICA CURIAE .........................

SUMMARY OF ARGUMENT ..............................

ARGUMENT .........................................................

I. THE APA AUTHORIZES UNIVERSAL RELIEF FROM REGULATORY ACTION ........

A. The APA Authorizes Courts To “Set

Aside” Rules In Their Entirety And To

“Issue All Necessary And Appropriate

Process … To Preserve Status Or Rights”

Pending Judicial Review .........................

B. The Government’s Suggestion That

Courts May “Set Aside” Rules Only As To

Particular Plaintiffs Defies Text And

Precedent ..................................................

C. The Government’s Policy Concerns Are

For Congress To Consider, Overstated,

And Outweighed By Countervailing Concerns .........................................................

II. NATIONWIDE INJUNCTIONS UNDER

THE APA ARE CONSTITUTIONAL ...........

CONCLUSION .....................................................

(i)

CASES

TABLE OF AUTHORITIES

Page

Abbott Labs. v. Gardner, 387 U.S. 136

(1967), abrogated on other grounds by

Califano v. Sanders, 430 U.S. 99 (1977) .... 4, 8

Action on Smoking & Health v. CAB, 713

F.2d 795 (D.C. Cir. 1983) ...........................

The Assigned Car Cases, 274 U.S. 564

(1927) ..........................................................

Barr v. Am. Ass’n of Political Consultants,

Inc., 140 S. Ct. 2335 (2020) ...................... 20, 21

Bd. of Governors of Fed. Reserve Sys. v.

Dimension Fin. Corp., 474 U.S. 361

(1986) ..........................................................

Bd. of Trade of Chi. v. Clyne, 260 U.S. 704

(1922) ..........................................................

Bd. of Trade of Chi. v. Olsen, 262 U.S. 1

(1923) ..........................................................

Binford v. J.H. McLeaish & Co., 284 U.S.

598 (1932) ...................................................

Bowen v. Georgetown Univ. Hosp., 488 U.S.

204 (1988) ................................................... 3, 4

Bresgal v. Brock, 843 F.2d 1163 (9th Cir.

1987) ...........................................................

Brown & Williamson Tobacco Corp. v. FDA,

153 F.3d 155 (4th Cir. 1998) ......................

CBS v. United States, 316 U.S. 407 (1942)....

Chamber of Commerce of U.S. v. U.S. Dep’t

of Labor, 885 F.3d 360 (5th Cir. 2018) ......

CRST Van Expedited, Inc. v. EEOC, 136 S.

Ct. 1642 (2016) ...........................................

Dep’t of Homeland Sec. v. Regents of the

Univ. of Cal., 140 S. Ct. 1891 (2020) .........

FCC v. Iowa Utils. Bd., 519 U.S. 978

(1996) ..........................................................

iii

TABLE OF AUTHORITIES—continued

Page

FCC v. Midwest Video Corp., 440 U.S. 689

(1979) ..........................................................

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ....................................

First Premier Bank v. CFPB, 819 F. Supp. 2d

906 (D.S.D. 2011) .......................................

Frothingham v. Mellon, 262 U.S. 447

(1923) ..........................................................

Gardner v. Toilet Goods Ass’n, Inc., 387 U.S.

167 (1967) ...................................................

Grupo Mexicano de Desarrollo, S.A. v. All.

Bond Fund, Inc., 527 U.S. 308 (1999) ...... 22, 25

H & H Tire Co. v. U.S. Dep’t of Transp., 471

F.2d 350 (7th Cir. 1972) .............................

Hague v. Comm. for Indus. Org., 101 F.2d

774 (3d Cir.), decree modified, 307 U.S. 496

(1939) ..........................................................

Hague v. Comm. for Indus. Org., 307 U.S.

496 (1939) ...................................................

Hecht Co. v. Bowles, 321 U.S. 321 (1944) .....

Hill v. Wallace, 259 U.S. 44 (1922), abrogated on other grounds by Bob Jones Univ.

v. Simon, 416 U.S. 725 (1974) ...................

Hines v. Davidowitz, 312 U.S. 52 (1941) ......

Indep. U.S. Tanker Owners Comm. v. Dole,

809 F.2d 847 (D.C. Cir. 1987) ....................

Journal of Commerce & Commercial Bulletin

v. Burleson, 229 U.S. 600 (1913) ................

Kisor v. Wilkie, 139 S. Ct. 2400 (2019) .........

Langer v. Grandin Farmers Coop. Elevator

Co., 292 U.S. 605 (1934).............................

Legal Envtl. Assistance Found., Inc. v. EPA,

118 F.3d 1467 (11th Cir. 1997) ..................

Lewis Publ’g Co. v. Morgan, 229 U.S. 288

(1913) ..........................................................

TABLE OF AUTHORITIES—continued

Page

Lewis v. Casey, 518 U.S. 343 (1996) .............

Lukens Steel Co. v. Perkins, 107 F.2d 627

(D.C. Cir. 1939) ..........................................

Mason Gen. Hosp. v. Sec’y of Dep’t of Health

& Human Servs., 809 F.2d 1220 (6th Cir.

1987) ...........................................................

McDonald v. McLucas, 371 F. Supp. 831

(S.D.N.Y.), aff’d, 419 U.S. 987 (1974) ........

McDonald v. McLucas, 419 U.S. 987 (1974) ...

Menorah Med. Ctr. v. Heckler, 768 F.2d 292

(8th Cir. 1985) ............................................

Miller v. Standard Nut Margarine Co. of

Fla., 284 U.S. 498 (1932) ...........................

Mitchell v. Penny Stores, 284 U.S. 576

(1931) ..........................................................

Monessen Sw. Ry. v. Morgan, 486 U.S. 330

(1988) ..........................................................

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.

State Farm Mut. Auto. Ins. Co., 463 U.S.

29 (1983) .....................................................

N.C. Growers’ Ass’n, Inc. v. United Farm

Workers, 702 F.3d 755 (4th Cir. 2012) ......

N.H. Hosp. Ass’n v. Azar, 887 F.3d 62 (1st

Cir. 2018) ....................................................

Nat’l Black Media Coal. v. FCC, 791 F.2d

1016 (2d Cir. 1986) .....................................

Nat’l Mining Ass’n v. U.S. Army Corps of

Eng’rs, 145 F.3d 1399 (D.C. Cir. 1998)......

NBC v. United States, 316 U.S. 447 (1942) ...

NBC v. United States, 44 F. Supp. 688

(S.D.N.Y.), rev’d sub nom. CBS v. United

States, 316 U.S. 407 (1942), and rev’d, 316

U.S. 447 (1942) ...........................................

Nken v. Holder, 556 U.S. 418 (2009) ............

TABLE OF AUTHORITIES—continued

Page

Parklane Hosiery Co. v. Shore, 439 U.S. 322

(1979) ..........................................................

PDR Network, LLC v. Carlton & Harris

Chiropractic, Inc., 139 S. Ct. 2051 (2019) ....

Perkins v. Lukens Steel Co., 310 U.S. 113

(1940) .......................................................... 7, 25

Pierce v. Soc’y of Sisters, 268 U.S. 510

(1925) ..........................................................

Prometheus Radio Project v. FCC, 652 F.3d

431 (3d Cir. 2011) .......................................

Scripps-Howard Radio v. FCC, 316 U.S. 4

(1942) ..........................................................

Sepulveda v. Block, No. 18 Civ. 1448, 1985

WL 1095 (S.D.N.Y. Apr. 26, 1985), aff’d,

782 F.2d 363 (2d Cir. 1986) .......................

Stark v. Wickard, 321 U.S. 288 (1944) .........

Sugar Cane Growers Coop. of Fla. v.

Veneman, 289 F.3d 89 (D.C. Cir. 2002) .....

Sullivan v. Zebley, 493 U.S. 521 (1990)........

Texas v. United States, 809 F.3d 134 (5th

Cir. 2015), aff’d by an equally divided

Court, 136 S. Ct. 2271 (2016).....................

Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S.

158 (1967) ...................................................

Trump v. Int’l Refugee Assistance Project,

137 S. Ct. 2080 (2017), vacated as moot,

138 S. Ct. 353 (2017) ..................................

United States v. Balt. & Ohio R.R., 293 U.S.

454 (1935) ...................................................

United States v. Mendoza, 464 U.S. 154

(1984) .................................................. 16, 17, 20

United States v. Storer Broad. Co., 351 U.S.

192 (1956) ...................................................

Va. Soc’y for Human Life, Inc. v. FEC, 263

F.3d 379 (4th Cir. 2001) .............................

TABLE OF AUTHORITIES—continued

W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624

(1943) ..........................................................

Wabash R.R. v. Adelbert Coll., 208 U.S. 38

(1908) ..........................................................

Wallace v. Thomas, No. 152 in Equity (E.D.

Tex. 1935) ...................................................

West Virginia v. EPA, 136 S. Ct. 1000

(2016) ..........................................................

Whitman v. Am. Trucking Ass’ns, Inc., 531

U.S. 457 (2001) ...........................................

Wirtz v. Baldor Elec. Co., 337 F.2d 518 (D.C.

Cir. 1963) ....................................................

Wolf v. Cook Cty., 140 S. Ct. 681 (2020) .......

Ex parte Young, 209 U.S. 123 (1908) ............

Zen Magnets, LLC v. CPSC, 841 F.3d 1141

(10th Cir. 2016) ..........................................

Page

STATUTES AND REGULATIONS

5 U.S.C. § 551 ................................................ 2, 10

§ 701 ................................................

§ 702 ................................................

§ 703 ................................................ 8, 15

§ 705 ............................................... 10, 15

§ 706 ........................................... 2, 14, 15

15 U.S.C. § 2618(c) ........................................

28 U.S.C. § 2342 ............................................

§ 2349 ............................................

29 U.S.C. § 655(f)...........................................

33 U.S.C. § 1369(b) ........................................

42 U.S.C. § 7607(b) ........................................

§ 9613(a) ........................................

Act of Oct. 21, 1976, Pub. L. No. 94-574, 90

Stat. 2721 ...................................................

vii

TABLE OF AUTHORITIES—continued

Emergency Price Control Act of 1942, Pub.

L. No. 77-421, 56 Stat. 23 ..........................

Act of Aug. 24, 1937, Pub. L. No. 75-352, 50

Stat. 751 (codified at 28 U.S.C. § 380a).....

Communications Act of 1934, Pub. L. No. 73416, 48 Stat. 1064 ......................................

Urgent Deficiencies Act, Pub. L. No. 63-32,

38 Stat. 208 (1913) .....................................

78 Fed. Reg. 76,269 (Dec. 17, 2013) ..............

78 Fed. Reg. 18,795 (Mar. 28, 2013) .............

Page

RULES

Fed. R. Civ. P. 2 .............................................

Fed. R. Civ. P. tit. VIII ..................................

Federal Equity Rule 38 (1913) ......................

Federal Equity Rule 48 (1842) ......................

LEGISLATIVE MATERIALS

H.R. Rep. No. 79-1980 (1946) ....................... 8, 14

S. Rep. No. 79-752 (1945) ..............................

Final Report of the Attorney General’s

Committee on Administrative Procedure,

S. Doc. No. 77-8 (1st Sess. 1941) .............. 12, 13

SCHOLARLY AUTHORITIES

James Wm. Moore & Marcus Cohn, Federal

Class Actions, 32 Ill. L. Rev. 307 (1937) ....

James Wm. Moore & Marcus Cohn, Federal

Class Actions—Jurisdiction and Effect of

Judgment, 32 Ill. L. Rev. 555 (1938) .........

Mila Sohoni, The Lost History of the

“Universal” Injunction, 133 Harv. L. Rev.

920 (2020) ............................................. 1, 24, 25

viii

TABLE OF AUTHORITIES—continued

Page

Mila Sohoni, The Power to Vacate a Rule, 88

Geo. Wash. L. Rev. 1121 (2020) ............. 1, 5, 25

Stephen I. Vladeck, The Solicitor General

and the Shadow Docket, 133 Harv. L. Rev.

123 (2019) ...................................................

Mark C. Weber, Preclusion and Procedural

Due Process in Rule 23(b)(2) Class Actions,

21 U. Mich. J.L. Reform 347 (1988) ..........

OTHER AUTHORITIES

Journal of the Supreme Court, October Term

1942, Friday, March 12, 1943 ....................

Douglas Laycock, Modern American Remedies (5th ed. 2019) ......................................

U.S. Dep’t of Justice, Attorney General’s

Manual on the Administrative Procedure

Act (1947)....................................................

7B Wright & Miller, Federal Practice and

Procedure (3d ed. 2019) ..............................

33 Wright & Miller, Federal Practice and

Procedure (2d ed. 2018) ..............................

INTEREST OF AMICA CURIAE1

Amica curiae Mila Sohoni is a professor at the University of San Diego School of Law, where she teaches

administrative law and civil procedure.2 She is the author of The Lost History of the “Universal” Injunction,

133 Harv. L. Rev. 920 (2020), which assesses the history and constitutionality of nationwide injunctions,

and The Power to Vacate a Rule, 88 Geo. Wash. L. Rev.

1121 (2020), which addresses the scope of the federal

courts’ power to enjoin and vacate agency regulations.

The government’s petition raises the question

whether a court may issue a universal preliminary injunction against federal agency action under the Administrative Procedure Act (“APA”). Amica’s analysis

of this topic may assist the Court if it reaches that

question.

SUMMARY OF ARGUMENT

The APA’s text, decades of this Court’s precedents,

the APA’s legislative history, the landscape against

which the APA was enacted, and Congressional acquiescence in its applications all establish that the APA

allows the universal vacatur of rules as an ultimate

remedy, and allows preliminary injunctions barring

the application of those rules during the course of litigation. That statutory grant of authority allowing

1 No party or its counsel authored this brief in whole or in part.

No person or entity other than amica and her counsel made a

monetary contribution intended to fund the preparation or submission of this brief. The parties have consented in writing to the

filing of this brief.

2 Amica’s institutional affiliation is noted for identification purposes only.

courts to issue universal injunctions is both constitutional and squares entirely with traditional equity

practice.

ARGUMENT

I. THE APA AUTHORIZES UNIVERSAL RELIEF FROM REGULATORY ACTION.

A. The APA Authorizes Courts To “Set

Aside” Rules In Their Entirety And To

“Issue All Necessary And Appropriate

Process … To Preserve Status Or Rights”

Pending Judicial Review.

1. The APA directs that “[t]he reviewing court

shall … hold unlawful and set aside agency action,

findings and conclusions” that are arbitrary and capricious or otherwise invalid. 5 U.S.C. 706. “[A]gency action” includes “the whole or a part of an agency rule.”

5 U.S.C. 551(13); 5 U.S.C. 701(b)(2). Section 551 defines the term “rule” to include “an agency statement

of general … applicability and future effect designed to

implement, interpret, or prescribe law or policy,” a definition that encompasses both statements of policy and

rules of agency “procedure.” 5 U.S.C. 551(4); see Dep’t

of Homeland Sec. v. Regents of the Univ. of Cal., 140 S.

Ct. 1891, 1905-07 (2020).

These provisions authorize the reviewing court to

“set aside” “the whole … of an agency rule” held “unlawful.” Rules are not set aside “as applied to specific

parties.” Contra Gov’t Br. 47. Rules are set aside, fullstop. That relief—vacatur—erases the rule, restoring

the status quo ante. See, e.g., Admin. Conf. of the U.S.,

Recommendation 2013-6, Remand Without Vacatur,

78 Fed. Reg. 76,269, 76,273 (Dec. 17, 2013) (agencies

should “work with the Office of the Federal Register to

remove vacated regulations from the Code of Federal

Regulations”). The agency has to start over and make

a new rule if it wishes to enforce the rule against anyone.3

2. A long line of this Court’s cases has applied the

APA to set aside an agency’s rule in its entirety.4 For

example, in FDA v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 131 (2000), the Court affirmed the

circuit court’s invalidation of the FDA’s regulations

governing tobacco. See Brown & Williamson Tobacco

Corp. v. FDA, 153 F.3d 155, 176 (4th Cir. 1998). The

Court nowhere limited its grant of relief only to the

plaintiffs.

Earlier, in Bowen v. Georgetown University Hospital,

488 U.S. 204 (1988), the Court affirmed the D.C. Circuit’s decision invalidating a retroactive rule. The

3 See, e.g., Indep. U.S. Tanker Owners Comm. v. Dole, 809 F.2d

847, 854-55 (D.C. Cir. 1987) (noting that court may “vacate the

rule, thus requiring the agency to initiate another rulemaking

proceeding”); Action on Smoking & Health v. CAB, 713 F.2d 795,

797 (D.C. Cir. 1983) (per curiam) (vacatur causes a “reinstat[ement] [of] the rules previously in force”).

4 Lower courts have also understood their powers to review regulations in the same way. See, e.g., Nat’l Mining Ass’n v. U.S.

Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998); N.H.

Hosp. Ass’n v. Azar, 887 F.3d 62, 77 (1st Cir. 2018); Nat’l Black

Media Coal. v. FCC, 791 F.2d 1016, 1020 (2d Cir. 1986); Prometheus Radio Project v. FCC, 652 F.3d 431, 453-54 & n.25 (3d Cir.

2011); N.C. Growers’ Ass’n, Inc. v. United Farm Workers, 702 F.3d

755, 759 (4th Cir. 2012); Chamber of Commerce of U.S. v. U.S.

Dep’t of Labor, 885 F.3d 360, 388 (5th Cir. 2018); Mason Gen.

Hosp. v. Sec’y of Dep’t of Health & Human Servs., 809 F.2d 1220,

1231 (6th Cir. 1987); H & H Tire Co. v. U.S. Dep’t of Transp., 471

F.2d 350, 355-56 (7th Cir. 1972); Menorah Med. Ctr. v. Heckler,

768 F.2d 292, 297 (8th Cir. 1985); Bresgal v. Brock, 843 F.2d 1163,

1171 (9th Cir. 1987); Zen Magnets, LLC v. CPSC, 841 F.3d 1141,

1155 (10th Cir. 2016); Legal Envtl. Assistance Found., Inc. v.

EPA, 118 F.3d 1467, 1469 (11th Cir. 1997).

Court did not cabin its grant of relief to the seven hospitals that had filed suit. Rather, it directed its holding and remedy to the illegal rule. Id. at 216 (“The

1984 reinstatement of the 1981 cost-limit rule is invalid.”). Earlier still, in Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 34 (1983),

the agency issued an order rescinding its passive-restraint rule, and the Court held that the rescission was

unlawful. It ordered the agency to “either consider the

matter further or adhere to or amend [the standard at

issue] along lines which its analysis supports.” Id.

Plainly, the relief the Court ordered had an impact beyond the plaintiff—the regulation directly acted only

upon automobile makers, so the plaintiff insurance

company was not even regulated by the rule it was

challenging.

In FCC v. Midwest Video Corp., 440 U.S. 689, 708

n.18 (1979), examining the FCC’s public access cable

rules, the Court “affirm[ed] the lower court’s determination to set aside the amalgam of rules without intimating any view regarding whether a particular element thereof might appropriately be revitalized in a

different context.” Again, the effect of this Court’s decision was the complete invalidation of the rules as to

all those subject to them. And in Abbott Laboratories

v. Gardner, 387 U.S. 136, 154 (1967), the Court explained that a benefit of pre-enforcement review under

the APA is that such review may counterintuitively

“speed enforcement” because if the agency “loses, it

can more quickly revise its regulation.” What the

Court thus contemplated was the complete invalidation and consequent revision of a regulation under the

APA, rather than relief for a particular plaintiff.5

3. That unbroken line of precedent was consistent

with pre-APA practice developed under statutory

schemes that informed the crafting of the APA itself.

See, e.g., Urgent Deficiencies Act, Pub. L. No. 63-32,

38 Stat. 208, 219-20 (1913) (establishing “venue of any

suit … brought to enforce, suspend, or set aside, in

whole or in part, any order of the [ICC]” and authorizing three-judge courts to issue “interlocutory injunction[s] suspending or restraining the enforcement, operation, or execution of, or setting aside, in whole or in

part, any order of the [ICC]”); Communications Act of

1934, Pub. L. No. 73-416, § 402(a), 48 Stat. 1064, 1093

(applying Urgent Deficiencies Act provisions “relating

to the enforcing or setting aside of the orders of the

[ICC]” to “suits to enforce, enjoin, set aside, annul, or

suspend any order of the [FCC] under this Act”); see

also Sohoni, Power to Vacate, supra, at 1146-51.

5 In the early APA case of United States v. Storer Broadcasting

Co., 351 U.S. 192 (1956), this Court reviewed a court of appeals

decision that expressly “struck out” select “words” from the regulatory order under review, rather than granting relief solely as to

the plaintiff. Id. at 200. While the Court found that the original

agency order itself was lawful and therefore undid the court of

appeals’ edits, the Court did not question the court’s power to

make such edits. Other instances of this Court approving the

wholesale setting aside of agency regulations abound. See, e.g.,

Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 486 (2001)

(finding the EPA’s “implementation policy to be unlawful,” and

leaving it to the EPA to “develop a reasonable interpretation” of

the relevant statutory provisions); Bd. of Governors of Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 365 (1986)

(“[T]he Court of Appeals invalidated the amended regulations. …

We affirm.”).

For example, in United States v. Baltimore & Ohio

Railroad, 293 U.S. 454 (1935), several railroads sued

under the Urgent Deficiencies Act to enjoin an ICC order requiring steam engine modifications. The threejudge court ordered that the ICC rule be “vacated, set

aside, and annulled” and its enforcement “perpetually

enjoined,” Transcript of Record at 223-24, and this

Court affirmed, 293 U.S. at 463-65. And in CBS v.

United States, two networks challenged the FCC’s

chain-broadcasting regulations. NBC v. United States,

316 U.S. 447 (1942); CBS v. United States, 316 U.S.

407 (1942). The three-judge court, while finding it

lacked jurisdiction, stayed the regulations’ enforcement entirely pending this Court’s review. The lower

court’s stay protected not just the two plaintiff networks; the stay also protected the third national network, Mutual, which was not a plaintiff, and hundreds

of non-party stations that would otherwise have been

adversely affected by enforcement of the new rules.6

This Court continued the stay when it reversed and

remanded. CBS, 316 U.S. at 425; NBC, 316 U.S. at

449. When the case again came before the Court, the

Court again continued the stay pending its own decision. See Journal of the Supreme Court, October Term

1942, Friday, March 12, 1943, at 184. The result was

that the chain-broadcasting regulations announced in

6 NBC v. United States, 44 F. Supp. 688, 690-91, 696-97

(S.D.N.Y.), rev’d sub nom. CBS v. United States, 316 U.S. 407

(1942), and rev’d, 316 U.S. 447 (1942); Decree Granting Temporary Restraining Order, Transcript of Record at 482, Columbia

Broad. Sys. v. United States, 316 U.S. 407 (1942).

1941 did not go into effect as to any station or any network, plaintiff or non-plaintiff, until ten days after the

Court eventually approved their validity in 1943.7

4. The Court need not look beyond the APA’s text

and that long line of APA (and pre-APA) precedents for

certainty that the APA’s power to “set aside” agency

action authorizes the general vacatur of rules. But

that result finds further support in legislative history.

The APA’s drafters intended the statute’s judicial review provisions “to assure the complete coverage of

every form of agency power, proceeding, action, or inaction.” S. Rep. No. 79-752, at 11-12 (1945) (Senate

Judiciary Committee Report). They understood these

provisions to allow litigants to show that “a rule … is

invalid,” including in a case in which a rule was promulgated without formal rulemaking. Id. at 28 (regarding Section 10(e), Scope of Review: “Where … an affected party claims in a judicial proceeding that a rule

issued without an administrative hearing (and not required to be issued after such hearing) is invalid, he

7 In The Assigned Car Cases, 274 U.S. 564 (1927), the threejudge district court “set aside, annulled, and suspended” the ICC’s

rule and permanently enjoined the federal defendants from enforcing it. Transcript of Record at 75. While the Court reversed

on the merits, 274 U.S. at 584, it took no issue with the sweeping

scope of the lower court’s decree. Similarly, in Lukens Steel Co.

v. Perkins, 107 F.2d 627 (D.C. Cir. 1939) (per curiam), the D.C.

Circuit granted a universal preliminary injunction that enjoined

the government from conditioning its procurement contracts on

the payment of specified minimum wages. This Court reversed,

but for lack of standing. Perkins v. Lukens Steel Co., 310 U.S.

113, 128 (1940). In dictum, the Court did call into question the

wisdom of the breadth of the court of appeals’ injunction by suggesting that (had there been standing) it should have applied to

all bidders in the plaintiffs’ specific “locality” rather than to all

localities. Id. at 123. The Court thus appeared ready to accept

that injunctive relief that went beyond the plaintiff could have

been appropriate had there been standing.

may show the facts upon which he predicates such invalidity.” (emphasis added)); accord H.R. Rep. No. 791980, at 42 (1946) (House Judiciary Committee Report) (“Declaratory judgment procedure … may be utilized to determine the validity or application of any

agency action. By such an action the court must determine the validity or application of a rule or order, render a judicial declaration of rights, and so bind an

agency upon the case stated and in the absence of a

reversal.” (emphasis added)).

5. Consistent with that broad intent, Congress has

long abided the courts’ uniform interpretation of the

APA. It has made no changes to the “set aside” power

as this Court and lower courts for decades have repeatedly used that power to strike unlawful rules. By

1967, Abbott Laboratories had removed any doubt that

the APA authorized pre-enforcement facial challenges

to regulations, even in the absence of a separate and

express statutory authorization of such suits.8 Yet in

1976, when Congress enacted amendments to the

APA’s judicial review provisions, Congress did not reduce the remedial powers of federal courts adjudicating challenges to agency rules. See Act of Oct. 21,

1976, Pub. L. No. 94-574, § 1, 90 Stat. 2721 (amending

5 U.S.C. 702, 703).

“Congress’ failure to disturb a consistent judicial interpretation of a statute may provide some indication

8 See Abbott Labs., 387 U.S. 136; Gardner v. Toilet Goods Ass’n,

Inc., 387 U.S. 167 (1967); Toilet Goods Ass’n, Inc. v. Gardner, 387

U.S. 158 (1967). The dissent in Abbott Laboratories confirmed

that the majority’s decision there “authorize[d] threshold or preenforcement challenge by action for injunction and declaratory

relief to suspend the operation of the regulations in their entirety

and without reference to particular factual situations.” Toilet

Goods Ass’n, 387 U.S. at 175 (Fortas, J., dissenting) (emphasis

added).

that ‘Congress at least acquiesces in, and apparently

affirms, that [interpretation].’” Monessen Sw. Ry. v.

Morgan, 486 U.S. 330, 338 (1988) (quoting Cannon v.

Univ. of Chi., 441 U.S. 677, 703 (1979)). As in other

areas where courts have interpreted a statutory command with “virtual unanimity over more than seven

decades” and Congress has not acted, the Court should

not revise its “longstanding” view of what Congress’s

statute allows the courts to do “in the face of such congressional inaction.” Id. at 338-39.

Here, the inference that Congress affirmatively approves of how the courts have construed the APA is

even stronger than in the pure “failure to disturb” context. Not only has Congress declined to reduce that

power in the APA itself, but it has multiplied the contexts in which broad-scale agency rules may be challenged nationwide, as many statutes enacted since

1946 provide for facial, pre-enforcement attacks on

rules and orders, including the Hobbs Act (1950), the

Clean Air Act (1970), the Clean Water Act (1972), and

CERCLA (1980). Crucially, like the APA, these statutes do not expressly say that the reviewing court may

set aside agency action for everyone, as opposed to just

the parties challenging the action.9 Yet they have long

9 See, e.g., Hobbs Act, 28 U.S.C. 2342 & 2349 (authorizing re-

viewing court to set aside certain agency actions, but not specifying that relief should extend to nonparties); Clean Water Act, 33

U.S.C. 1369(b)(1)-(2) (specifying timing and place of review, but

not specifying that relief should extend to nonparties); CERCLA,

42 U.S.C. 9613(a) (specifying exclusive review in D.C. Circuit

within 90 days of any regulation promulgated, but not specifying

that relief should extend to nonparties); Clean Air Act, 42 U.S.C.

7607(b) (providing complex provisions for review of covered rules,

but not specifying that relief should extend to nonparties); OSH

Act, 29 U.S.C. 655(f) (specifying venue and timing of petitions to

been interpreted to authorize a reviewing court to universally vacate invalid rules or orders. Had Congress

been concerned about the courts’ broad reversals of

rules under the APA, it would have specified in these

statutes that “set aside” or similar relief would be limited to a specific party. But none of these statutes does

that.

6. Attendant to the power to set aside rules, the APA

further authorizes courts to maintain the status quo

while a challenge is pending. Section 705, “Relief

Pending Review,” works hand-in-glove with Section

706 to allow such relief, providing that a “reviewing

court” may “issue all necessary and appropriate process to postpone the effective date of an agency action

or to preserve status or rights pending conclusion of

the review proceedings.” 5 U.S.C. 705. As noted,

“agency action” is defined to include “the whole … of

an agency rule,” and encompasses general statements

of policy and rules of procedure. 5 U.S.C. 551(4), (13).

By its plain terms, Section 705 allows a reviewing

court to issue appropriate process to halt the application of a rule either by “issu[ing] … process” or by

“postpon[ing]” the rule’s “effective date.” This Court

has itself exercised that power to preserve the status

quo by staying entire rules pending judicial review.

See, e.g., Order, West Virginia v. EPA, 136 S. Ct. 1000

(2016). And it has declined to disturb lower-court decrees enjoining regulatory action universally. See

FCC v. Iowa Utils. Bd., 519 U.S. 978 (1996) (mem.);

see also Texas v. United States, 809 F.3d 134, 187-88

(5th Cir. 2015), aff’d by an equally divided Court, 136

challenge standards, but not that relief should extend to nonparties); Toxic Substances Control Act, 15 U.S.C. 2618(c) (setting

forth standards for judicial review, but not specifying that relief

should extend to nonparties).

S. Ct. 2271 (2016) (per curiam) (affirming nationwide

injunction of agency action).

The APA’s authorization of universal preliminary relief makes sense given the courts’ power to set a rule

aside in its entirety at the end of a case. If the reviewing court may universally vacate a rule on the merits,

it has to have the interim power to halt the rule from

going into effect universally, pending its merits decision. See Nken v. Holder, 556 U.S. 418, 426 (2009).

Otherwise, the power to afford meaningful final relief

would be diminished. Once a rule begins to be applied,

the “egg has been scrambled,” Sugar Cane Growers

Coop. of Fla. v. Veneman, 289 F.3d 89, 97 (D.C. Cir.

2002), with sometimes irreversible effects. The way

that courts are to grant such interim relief is through

ordinary injunctions and restraining orders. See U.S.

Dep’t of Justice, Attorney General’s Manual on the Administrative Procedure Act 107 & n.20 (1947) (citing 28

U.S.C. 381 (1946) and Fed. R. Civ. P. 65).10

B. The Government’s Suggestion That

Courts May “Set Aside” Rules Only As To

Particular Plaintiffs Defies Text And

Precedent.

1. The government contends that, before the APA, it

was “traditional” judicial practice to “set aside” agency

action only as to a suit’s plaintiffs. So, it says, the

10 See also First Premier Bank v. CFPB, 819 F. Supp. 2d 906,

923 (D.S.D. 2011) (“The effective date of the 2011 amendment to

§ 226.52 of Regulation Z is postponed, and the Board is enjoined

from enforcing it.”); 78 Fed. Reg. 18,795, 18,795 (Mar. 28, 2013)

(“As a result of the [First Premier Bank] court’s order, the portion

of the Board’s 2011 final rule applying § 226.52(a) to pre-account

opening fees has not become effective.”).

APA’s “set aside” language should be read only to authorize plaintiff-specific relief absent a clear statement

allowing broader relief. Gov’t Br. 47-48.

The government misconstrues pre-APA “traditional”

practice. As discussed, when broad-gauged regulatory

action was under review, courts set aside and enjoined

federal regulatory action wholesale under predecessor

statutes to the APA, which employed substantially

identical language. See supra I.A.3. The judicial authority to afford such relief—however often exercised—was not questioned. The government fails to

cite even a single case in which a court reviewing a

regulation used the APA’s language, “set aside,” in the

unusual way the government urges: to “set aside” the

regulation only “as to a particular plaintiff.”11 That is

because the natural, and “traditional,” meaning of

“setting aside” a rule is to invalidate it entirely.

Other sources foundational to the APA confirm that

understanding. The 1941 Attorney General’s Report,

written by a venerated group of administrative law experts, explained that “[a] judgment adverse to a regulation results in setting it aside.” See Final Report of

the Attorney General’s Committee on Administrative

Procedure, S. Doc. No. 77-8, at 117 (1st Sess. 1941).

The report clearly conceived of the regulation as the

object of the court’s review: “The regulation does not

speak for itself, with a limited amount of evidence or

11 Virginia Society for Human Life, Inc. v. FEC, 263 F.3d 379,

393-94 (4th Cir. 2001), declined to “set aside” the regulation and

merely enjoined its enforcement as to the plaintiff. It does not

suggest that “set aside” means “set aside as to the plaintiff.” It

instead shows only that a plaintiff-specific injunction is a narrower alternative to a broader order that would “set aside” a regulation “for the entire country”—reinforcing that the APA’s grant

of “set aside” authority is broad.

argument to aid in judging it; the entire administrative record must be examined.” Id. As the report reflects, the term “set aside” was used to denote judicial

invalidation of generally applicable rules.

Congress likewise understood that federal laws and

rules could be “set aside.” In 1937, Congress created

three-judge courts for constitutional challenges to federal laws. See Act of Aug. 24, 1937, Pub. L. No. 75352, § 3, 50 Stat. 751, 752 (codified at 28 U.S.C. 380a).

Section 380a specified the conditions under which an

“interlocutory or permanent injunction suspending or

restraining the enforcement, operation, or execution

of, or setting aside, in whole or in part, any Act of Congress” as unconstitutional could be “issued or granted.”

Id. (emphasis added). And in the Emergency Price

Control Act of 1942, Congress vested jurisdiction in the

Emergency Court of Appeals over certain price schedules, and denied jurisdiction to other courts over actions seeking, inter alia, to “set aside, in whole or in

part, any provision of this Act” or “any provision of

any … regulation” under the Act that met certain criteria. Emergency Price Control Act of 1942, Pub. L.

No. 77-421, § 204(d), 56 Stat. 23, 33. These enactments do not use “set aside” in a plaintiff-specific

sense, but instead refer to judicial review of laws or

regulations. So the government is wrong to suggest (at

Gov’t Br. 47-48) that “nothing in the APA’s text or history” supports the meaning that this Court and lower

courts have long given to “set aside” in Section 706.

The government also has it backwards in contending

(at Gov’t Br. 47-48) that Congress could not have “sub

silentio” conferred on courts the authority to vacate

agency action universally. Prior to the APA, the governing rule was the opposite, for as this Court had repeatedly emphasized in the run-up to the APA’s enact-

ment, statutes were presumed to leave courts’ equitable powers intact unless Congress divested them by explicit statutory language. E.g., Hecht Co. v. Bowles,

321 U.S. 321, 330 (1944); Stark v. Wickard, 321 U.S.

288, 310-11 (1944); Scripps-Howard Radio v. FCC, 316

U.S. 4, 11 (1942). The APA’s drafters specifically relied on that rule, noting that “[t]o preclude judicial review under this bill a statute, if not specific in withholding such review, must upon its face give clear and

convincing evidence of an intent to withhold it.” H.R.

Rep. No. 79-1980, at 41. No clear statement of broad

remedial authority was required for courts to have

that power under the APA. But it anyway is incorrect

to say that Congress did anything “sub silentio,” for, as

noted, Congress was in fact clear in granting broad

“set aside” authority to the courts. Given the pre-APA

understanding of how courts would “set aside” regulatory action (supra I.A.3), and the courts’ uniform,

broad application of that language in the APA (supra

I.A.2), Congress’s “set aside” language was intended to

give, and did indeed give, exactly the straightforward

command that the government demands.

2. The government also argues that Section 706

“does not pertain to remedies at all,” and that Section

703 “points outside the APA for the available remedies.” Gov’t Br. 46-47. That argument is as novel as it

is wrong. It is simply incompatible with the APA’s text

and structure. The plain language of Section 706

shows that it speaks to remedies. Section 706 itself

pairs something that is quite obviously a remedy—the

affirmative power to order an agency to undertake action “unlawfully withheld or unreasonably delayed,” 5

U.S.C. 706(1)—with its converse remedy: the negative

power to “hold unlawful and set aside agency action,”

5 U.S.C. 706(2).12 Section 703, like Federal Rule of

Civil Procedure 2, speaks merely to the “form” of action, not to remedies. Compare 5 U.S.C. 703 (“Form

and venue of proceeding”), with Fed. R. Civ. P. 2

(“There is one form of action—the civil action.”). Remedies come later, as they logically should. Compare 5

U.S.C. 705 (“Relief pending review”) and 5 U.S.C. 706

(“Scope of review”), with Fed. R. Civ. P. tit. VIII (“Provisional and Final Remedies,” containing Fed. R. Civ.

P. 64-71). The government does not cite a single case

to support the notion that Section 703 dictates when a

party challenging agency action may win an injunction, whether universal or not. Nor is amica aware of

one.

3. The government is, finally, plainly wrong to suggest that the APA’s “set aside” relief can only stretch

beyond the plaintiff if a class is certified under Rule

23. See Gov’t Br. 43. The statute’s language says no

such thing. Beyond that, the class certification provisions of Rule 23 were only adopted in 1966, twenty

years after the APA’s enactment. The 1966 amendments left Rule 65—which does not limit preliminary

or final injunctive relief only to the plaintiffs—untouched. The 1966 amendments to Rule 23 obviously

made no changes to the APA, and courts deciding APA

cases issued nationwide injunctions before and after

1966. Indeed, courts have frequently said that class

certification is an unnecessary “formality” in suits

seeking injunctive relief against federal officers, because a “court can properly assume that an agency of

the government would not persist in taking actions

which violate … rights.” McDonald v. McLucas, 371

12 33 Wright & Miller, Federal Practice and Procedure § 8381

(2d ed. 2018) (commencing its discussion of “Remedies” with a

section entitled “Vacation and Remand of Agency Action,” and

therein addressing 5 U.S.C. 706).

F. Supp. 831, 833-34 (S.D.N.Y.), aff’d, 419 U.S. 987

(1974); Sepulveda v. Block, No. 18 Civ. 1448, 1985 WL

1095, at *5 (S.D.N.Y. Apr. 26, 1985) (noting the Secretary of Agriculture’s argument that “class certification

is not necessary” because “as a government official the

relief sought by the named plaintiffs would benefit the

proposed class”), aff’d, 782 F.2d 363 (2d Cir. 1986). At

times, the government presses that argument before

lower courts today.13 The notion that Rule 23 offers

the sole pathway to broad-gauged relief overlooks that

in myriad provisions—not just the APA—Congress has

allowed litigants to get collective relief without proceeding through the Rule 23 class action. See 7B

Wright & Miller, Federal Practice and Procedure

§ 1807 (3d ed. 2019) (FLSA, Equal Pay Act, ADEA).

The government itself may seek relief for groups of individuals who are “similarly situated” without satisfying Rule 23’s requisites. See CRST Van Expedited,

Inc. v. EEOC, 136 S. Ct. 1642, 1647-48 (2016).

United States v. Mendoza, 464 U.S. 154 (1984),

treated by the government (at Gov’t Br. 44) as standing for the “usual rule” that the government may not

be non-mutually collaterally estopped, has little relevance here. On policy grounds, Mendoza rejected the

idea that non-mutual issue preclusive effect could be

used against the federal government. But when a

court issues a nationwide preliminary injunction, it

does not preclude the government (or any non-party,

for that matter) from doing anything. The court’s decree only orders the defendant before it—the federal

13 See, e.g., Defendants’ Opposition to Plaintiffs’ Motions for

Preliminary Injunction and Class Certification at 20-21, Hall v.

U.S. Dep’t of Agric., No. 4:20-CV-03454-HSG (N.D. Cal. June 4,

2020), 2020 WL 6796257 (arguing, in an APA suit, that class certification should be denied because “all proposed class members

would get the same relief if Plaintiffs are successful”).

officer or agency—to refrain from violating the law.

The injunction does not bar the government from litigating the issue in parallel cases as they arise. Nor

does a preliminary injunction barring the application

of a policy forever bind subsequent administrations to

the outcome of a single, untested lower-court opinion,

which was a prime concern of this Court in Mendoza.

Cf. Mendoza, 464 U.S. at 161-62. Rather, the government remains free to redo its policy choices going forward.

In short, the APA’s clear statutory language continues to allow courts to “set aside” rules and to enjoin

them pending a decision on whether to set them aside.

No Federal Rule, statute, or decision by this Court has

changed that framework.

C. The Government’s Policy Concerns Are

For Congress To Consider, Overstated,

And Outweighed By Countervailing Concerns.

1. The government stresses that allowing courts to

enjoin or “set aside” regulations with national effect

creates “practical problems.” Gov’t Br. 44. Disallowing such relief would have its own negative consequences, discussed briefly below. But, however one

weighs the pros and cons, they are irrelevant. It was

Congress’s job to weigh those consequences in enacting

the APA, and as set forth above, Congress elected to

authorize that relief in the APA, authorized similar relief in subsequent statutes over the years, and has

abided the “practical problems” through more than 70

years of litigation challenging agency action. If the

law is to be changed, that is a task for Congress. While

a court should exercise remedial discretion wisely, it is

not for the courts to override Congress’s judgment and

decide that relief Congress has authorized is categorically improper. See Kisor v. Wilkie, 139 S. Ct. 2400,

2432 (2019) (Gorsuch, J., concurring) (“When this

Court speaks about the rules governing judicial review

of federal agency action, we are not (or shouldn’t be)

writing on a blank slate or exercising some commonlaw-making power. We are supposed to be applying

the [APA].”).

2. Substantial negative effects would anyway follow

if the courts were denied the power to set aside and

enjoin rules entirely. If courts cannot halt illegal government acts generally and are limited to providing relief only to plaintiffs who have the will and means to

litigate to judgment, then many parties subject to

rules will not challenge them and the government will

be free to treat illegal rules as the law. And with the

courts thus defanged, the government would act with

less restraint. By the same token, because the government, like any party, acts in the shadow of the law,

allowing universal vacatur and nationwide injunctions

gives the government additional reason not to push

the envelope of legality in adopting rules.

Moreover, if every party subject to an invalid rule

has to bring its own action to invalidate the rule as to

it, litigation will needlessly mushroom. Just as it

would be “wholly impractical—and a huge waste of resources—to expect and require every potentially affected party to bring pre-enforcement … challenges

against every agency order that might possibly affect

them in the future,” PDR Network, LLC v. Carlton &

Harris Chiropractic, Inc., 139 S. Ct. 2051, 2061 (2019)

(Kavanaugh, J., concurring), it would be impractical to

require a multiplicity of individual actions seeking to

obtain identical relief.

3. As for the government’s policy arguments for eliminating the relief authorized by the APA, they are

wrong. The government’s complaint about “asymmetrical[]” effects (at Gov’t Br. 44), to the extent such a

problem exists, still remains even if requests for broad

relief are channeled into Rule 23 suits. For example,

the government faced exactly this “asymmetr[y]” in

the cases underlying Sullivan v. Zebley, 493 U.S. 521

(1990), in which the Third Circuit granted relief to a

nationwide class in a case involving regulations earlier

deemed valid or enforceable by four other circuits.

(This Court sided with the Third Circuit and affirmed.)

But in the end, whether injunctions are broad or narrow, the nation’s system of appellate review will bring

any important question that divides the circuits before

this Court. To ultimately prevail, the government does

not have to run the table. Rather, it has to win once

and for all in this Court—just like everyone else. In

that same vein, concerns about forum shopping, see

Gov’t Br. 44, and injunctions forcing the government

to seek “emergency appellate relief,” see id. at 44-45,

are overblown. The former is an inevitable byproduct

of all litigation in a multi-district system that broadly

permits plaintiffs to lay venue. The latter seeks to

blame lower court judges for the consequences of the

government’s own recently embraced, wholly voluntary, strategic litigation policy choice to seek emergency relief across a panoply of cases, many of which

do not involve universal injunctions. See Wolf v. Cook

Cty., 140 S. Ct. 681 (2020) (mem.) (Sotomayor, J., dissenting from the grant of stay).14

4. Finally, the Court should be reluctant to tinker

with the source code of administrative law by rewriting the APA. The APA’s language has been borrowed

and cross-referenced across the U.S. Code, and it acts

as a gap-filler when other statutes are not explicit

about the relief they authorize. Altering the meaning

14 See Stephen I. Vladeck, The Solicitor General and the

Shadow Docket, 133 Harv. L. Rev. 123, 124 (2019).

of the APA’s remedial provisions would reverberate

across public law with unpredictable and potentially

disruptive consequences.

II. NATIONWIDE INJUNCTIONS UNDER THE

APA ARE CONSTITUTIONAL.

A. There is furthermore no Article III standing problem with a court issuing an injunction that benefits

non-parties (contra Gov’t Br. 42-43). Using this case

as an example, the complaining parties have standing

to complain about the agency action at issue, and the

district court had jurisdiction over the government and

express statutory authority to enjoin the government

from implementing that action. That the effect of the

injunction is to restrain its enforcement universally

does not create a standing problem. Such a stay is just

like an injunction against future violations of the

law—“the simplest use of the injunction.” Douglas

Laycock, Modern American Remedies 275 (5th ed.

2019).

Non-mutual collateral estoppel under, e.g., Parklane

Hosiery Co. v. Shore, 439 U.S. 322 (1979), is similar.

Plaintiff A does not have “standing” to obtain relief for

plaintiff B, but plaintiff B gets the benefit of plaintiff

A’s victory just as with an injunction like the one

here.15 There is no standing problem with a court

granting judgment for the plaintiff even though the

judgment’s effect helps non-plaintiffs.

Likewise, when the Court “invalidates and severs

unconstitutional provisions” from a law, Barr v. Am.

Ass’n of Political Consultants, Inc., 140 S. Ct. 2335,

15 Mendoza, 464 U.S. at 160, shielded the federal government

from non-mutual issue preclusion, but as a matter of policy, not

standing. A standing holding in Mendoza would have knocked

out non-mutual issue preclusion across the board, not just in suits

against the federal government.

2351 (2020) (opinion of Kavanaugh, J.), that decision’s

effects extend beyond the plaintiff to nonparties.

“[T]he formal remedy afforded to the plaintiff is an injunction, declaration, or damages,” but “[u]nder the

Court’s approach, a provision is declared invalid and

cannot be lawfully enforced against others.” Id. at 2351

n.8 (emphasis added). Standing doctrine poses no obstacle to that relief, even though it shields “others” beyond the plaintiff.

Further, the government acknowledges that in a

class action, a court may issue nationwide relief. Gov’t

Br. 43. That demonstrates that whatever complaint

there may be about nationwide injunctions, it is not a

complaint about Article III standing. In a class action,

as in this case, standing is assessed solely with respect

to the named plaintiff. It is well established that the

fact “[t]hat a suit may be a class action … adds nothing

to the question of standing.” Lewis v. Casey, 518 U.S.

343, 357 (1996) (quoting Simon v. E. Ky. Welfare

Rights Org., 426 U.S. 26, 40 n.20 (1976)). Thus, the

standing analysis as to a certified class is identical to

the standing analysis for a non-representative plaintiff, so standing is not what makes the difference between broader and narrower relief. Instead, the “question”—which is prudential rather than constitutional—

is simply whether the evidence shows that the problem

being addressed is “widespread enough to justify systemwide relief.” Id. at 359. If nationwide relief may

constitutionally be given to a single plaintiff suing for

a nationwide class, it follows that standing poses no

constitutional obstacle to nationwide injunctive relief.

B. The government also suggests that nationwide injunctions are unconstitutional because they do not

comport with traditional equity practice. But in this

Court’s cases, the question of traditional equity practice is statutory, not constitutional: this Court “leaves

any substantial expansion of past [equity] practice to

Congress.” Grupo Mexicano de Desarrollo, S.A. v. All.

Bond Fund, Inc., 527 U.S. 308, 329 (1999). Here, Congress authorized nationwide injunctive relief, for as

discussed, the APA empowers courts to “hold unlawful

and set aside” rules, as well as to “issue all necessary

and appropriate process” to “preserve status or rights”

pending judicial review of rules.

In any event, the broad relief here aligns with

longstanding equity practice.

1. Modern-era nationwide injunctions reflect the old

representative suit practice, derived from the old English bill of peace and continued on in the Federal Equity Rules, of shielding those “similarly situated” to

the plaintiffs.16 See Trump v. Int’l Refugee Assistance

Project, 137 S. Ct. 2080, 2088 (2017) (per curiam) (retaining nationwide injunctions barring enforcement of

an executive order against “parties similarly situated

to” three plaintiffs), vacated as moot, 138 S. Ct. 353

(2017) (mem.) (per curiam); Wirtz v. Baldor Elec. Co.,

337 F.2d 518, 533 (D.C. Cir. 1963) (per curiam) (ordering a nationwide injunction in a suit brought by the

plaintiffs “on behalf of themselves and all other United

States manufacturers of electric motors and generators similarly situated”). Nationwide injunctions are

therefore consistent with traditions of equity.

16 See Federal Equity Rule 48 (1842) (authorizing federal

courts to “proceed in the suit” involving “very numerous” interested parties without “making all of them parties,” as long as the

court had “sufficient parties before it to represent all the adverse

interests of the plaintiffs and the defendants”); Federal Equity

Rule 38 (1913) (allowing a party to “sue or defend for the whole”

when “the question is one of common or general interest to many

persons constituting a class so numerous as to make it impracticable to bring them all before the court”).

Some have contended that the relief given in representative suits was different than in a suit like this one

because a decree in an equity representative action

was binding on represented non-parties in subsequent

suits. Not so. Decrees in representative suits bound

absentees in “joint interest” cases where members of

the class shared a common claim, but according to

James William Moore, the drafter of Rule 23, decrees

were not binding on absentees in “several interest”

cases involving similar but independent claims or defenses. See James Wm. Moore & Marcus Cohn, Federal Class Actions—Jurisdiction and Effect of Judgment, 32 Ill. L. Rev. 555, 561 (1938); James Wm. Moore

& Marcus Cohn, Federal Class Actions, 32 Ill. L. Rev.

307, 314-16, 319-20, 319 n.97 (1937); see also Wabash

R.R. v. Adelbert Coll., 208 U.S. 38, 59 (1908) (judgment

in Equity Rule 48 case did not “b[i]nd the defendants in error [i.e., the plaintiffs in the subsequent suit]

who were not parties to it”). In representative suits of

the “several interest” type, absentees would benefit

from any broad injunctive relief but would not be

bound by the judgment. See Moore & Cohn articles,

supra; Mark C. Weber, Preclusion and Procedural Due

Process in Rule 23(b)(2) Class Actions, 21 U. Mich. J.L.

Reform 347, 348 (1988). The long history of this type

of representative suit refutes the notion that preclusive effect upon absentees down the road was traditionally thought to be necessary for a court to afford

injunctive relief to absentees.

2. As described, courts did set aside and enjoin federal agency action wholesale in the pre-APA period.

Further, from at least 1913 onwards, federal courts issued multiple broad injunctions against federal officers even outside of the administrative law context.

In 1913, pending decision in Lewis Publishing Co. v.

Morgan, 229 U.S. 288 (1913), the plaintiffs asked this

Court to enjoin enforcement of a federal newspaper

statute against the two plaintiff publications and

against “other newspaper publishers” pending its decision in that case. The plaintiffs asserted that the federal government reneged on its prior “agree[ment] not

to enforce the Act against the plaintiffs ‘or other newspaper publishers throughout the country’ pending the

Court’s decision.” See Mila Sohoni, The Lost History

of the “Universal” Injunction, 133 Harv. L. Rev. 920,

945 (2020). The Court granted the injunction. See

Journal of Commerce & Commercial Bulletin v. Burleson, 229 U.S. 600 (1913) (per curiam).

More injunctions protecting non-plaintiffs from enforcement of federal law issued in the following years.

In Hill v. Wallace, 259 U.S. 44 (1922), the Court barred

enforcement of the Future Trading Act against the

eight plaintiff members of the Chicago Board of Trade

and any other, non-party member, too. In Board of

Trade of Chicago v. Olsen, 262 U.S. 1 (1923), the

Court’s preliminary injunction barred the Grain Futures Act from being enforced against anyone within

the jurisdiction of the local U.S. Attorney. See Bd. of

Trade of Chi. v. Clyne, 260 U.S. 704 (1922) (mem.).

Lower courts issued such injunctions as well. In Wallace v. Thomas, No. 152 in Equity (E.D. Tex. 1935), a

federal district court preliminarily enjoined federal officers from all four districts in Texas from enforcing a

federal law against “every cotton ginner in the State of

Texas,” conditional on the posting of a $100,000 bond.

Sohoni, Lost History, supra, at 1001 n.530.

The nationwide injunction is not new—it has at least

a century-long pedigree. What is new is the notion

that these injunctions are somehow illegitimate. See

McDonald v. McLucas, 419 U.S. 987 (1974) (affirming,

at the government’s urging, a nationwide injunction

against two provisions of a federal statute).17

3. Courts similarly and repeatedly enjoined the enforcement of state law in this period. See Sohoni, Lost

History, supra, at 958-73, 987-91. By their nature,

such injunctions were statewide rather than nationwide, but that makes no difference in principle. The

question is whether courts were willing and able to expressly enjoin government defendants from enforcing

laws against non-parties. Like the cases targeting federal laws, the cases targeting state laws show that

courts issued injunctions shielding non-parties.

17 It is no defect that the nationwide injunction’s pedigree does

not stretch all the way back to 1789. See Grupo Mexicano de Desarrollo, S.A., 527 U.S. at 324-27 (looking, in part, to twentieth

century precedent to determine “the traditional powers of equity

courts”). The injunction protecting non-plaintiffs has a pedigree

nearly as long as the purely plaintiff protective injunction against

enforcement of laws. See Ex parte Young, 209 U.S. 123, 126

(1908). The government does not suggest that the Constitution

requires this Court to walk back Young just because it represented an evolution of equity practice.

The government (at Gov’t Br. 47) contends that “there was no

well-established tradition of universal injunctions before the

APA’s 1946 enactment.” But nationwide injunctions existed both

before and after 1946. See Sohoni, Lost History, supra, at 944-46;

Sohoni, Power to Vacate, supra, at 1146-63. The infrequency of

nationwide injunctions had nothing to do with courts’ lack of authority to issue them and everything to do with venue rules, defects in the cases of plaintiffs who sought broad injunctions, or

other unrelated doctrines. See, e.g., Perkins, 310 U.S. at 128 (reversing nationwide injunction on standing grounds); Frothingham v. Mellon, 262 U.S. 447 (1923) (affirming dismissal of a suit

seeking a nationwide injunction on standing grounds); Miller v.

Standard Nut Margarine Co. of Fla., 284 U.S. 498, 509 (1932) (requiring suits seeking to enjoin “an exaction in the guise of a tax”

to be maintained against “the collector,” i.e., the local federal officer).

In Pierce v. Society of Sisters, 268 U.S. 510 (1925),

the Court affirmed a universal injunction against a

state law that imposed criminal penalties on parents

who sent their children to private schools. The two

plaintiff schools sued just for themselves, alleging that

the law was an unconstitutional interference with

their property rights. But they sought, and received,

an injunction that categorically restrained the state

from enforcing the law. This Court affirmed, expressly

approving that injunction. Id. at 530 (“Rights said to

be guaranteed by the federal Constitution were specially set up, and appropriate prayers asked for their

protection.”); id. at 533 (“[t]he prayer is for an appropriate injunction”).

West Virginia Board of Education v. Barnette, 319

U.S. 624 (1943) is similar. The Court affirmed an injunction that reached beyond the plaintiff class of Jehovah’s Witnesses to also shield any other children

having religious scruples from a state law requiring

students to salute the American flag. Id. at 642. In

another case, the Court called “unassailable” a decree

that protected not just the plaintiffs but also those

“acting in sympathy or in concert with the plaintiffs or

any of them” from enforcement of city ordinances that

interfered with federal civil rights. See Hague v.

Comm. for Indus. Org., 307 U.S. 496, 517 (1939) (opinion of Roberts, J.); Hague v. Comm. for Indus. Org., 101

F.2d 774, 794-96 (3d Cir.), decree modified, 307 U.S.

496 (1939); see also, e.g., Langer v. Grandin Farmers

Coop. Elevator Co., 292 U.S. 605 (1934) (mem.) (affirming per curiam interlocutory injunction barring North

Dakota governor from embargoing sales of agricultural products out of the state); Binford v. J.H.

McLeaish & Co., 284 U.S. 598 (1932) (mem.) (affirming

per curiam interlocutory injunction barring enforce-

ment of a Texas law against all those similarly situated to certain plaintiff-intervenor cotton growers,

farmers, merchants, handlers, and truck drivers);

Mitchell v. Penny Stores, 284 U.S. 576 (1931) (affirming per curiam interlocutory injunction barring enforcement of a Mississippi chain-store tax against the

plaintiff or any operators of more than five stores subject to the tax); Hines v. Davidowitz, 312 U.S. 52, 74

(1941) (affirming universal injunction of a Pennsylvania alien-registration statute).

As with nationwide injunctions, the universal injunction against state law is not new.18 What is new

is the contention that such universal relief may only

be obtained through a certified Rule 23 class action

suit—a device invented in the 1960s to enable the efficient exercise of Article III judicial power, not to curb

its scope.

CONCLUSION

The Court should conclude that the APA authorizes

federal courts to set aside rules and to preliminarily

enjoin them, with universal effect, while litigation is

pending.

18 In a filing to this Court last Term, the government asserted

(without citation) that “nearly as many” nationwide injunctions

have issued in the last three years as in prior years combined.

See Brief for the Petitioners at 46, Trump v. Pennsylvania, No.

19-454 (U.S. Mar. 2, 2020), 2020 WL 1190624. The government

has relied on that earlier brief in its filings in this case. See Gov’t

Pet. 30-31. But the government has not disclosed its criteria for

including cases on this secret list or its method for compiling it,

and has not responded to amica’s law librarian’s FOIA requests

for records supporting earlier, similar claims by the government

and former Attorney General.

Respectfully submitted,

DAVID S. KANTER

KARMA O. FARRA

LAURA C. SORICE

SIDLEY AUSTIN LLP

787 Seventh Avenue

New York, NY 10019

(212) 839-5300

CHRISTOPHER M. EGLESON*

SIDLEY AUSTIN LLP

555 West Fifth Street

Los Angeles, CA 90013

(213) 896-6108

cegleson@sidley.com

Counsel for Amica Curiae

January 22, 2021

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.