Amicus Curiae Brief — Little Sisters of the Poor Saints Peter and Paul Home, Petitioner v. Pennsylvania, et al.

Supreme Court briefApr 8, 2020

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Nos. 19-431, 19-454

IN THE

Supreme Court of the United States

______________

LITTLE SISTERS OF THE POOR SAINTS

PETER AND PAUL HOME,

Petitioner,

COMMONWEALTH OF PENNSYLVANIA

AND STATE OF NEW JERSEY,

Respondents.

_______

DONALD J. TRUMP,

PRESIDENT OF THE UNITED STATES, et al.,

Petitioners,

COMMONWEALTH OF PENNSYLVANIA

AND STATE OF NEW JERSEY,

Respondents.

______________

On Writs of Certiorari to the United States

Court of Appeals for the Third Circuit

______________

BRIEF FOR PROFESSOR MILA SOHONI

AS AMICA CURIAE IN SUPPORT OF

RESPONDENTS

______________

CHRISTOPHER M. EGLESON*

SIDLEY AUSTIN LLP

555 West Fifth Street

Los Angeles, CA 90013

(213) 896-6108

cegleson@sidley.com

Counsel for Amica Curiae

April 8, 2020

* Counsel of Record

DAVID S. KANTER

SIDLEY AUSTIN LLP

787 Seventh Avenue

New York, NY 10019

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” Regulations In Their Entirety And

To “Stay” Their “Effective Date” Pending

Litigation ..................................................

B. Amici’s Suggestion That Courts May “Set

Aside” Regulations Only As To Particular

Plaintiffs Defies Text and Precedent ......

C. The Government And Amici’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, 7

Action on Smoking & Health v. CAB, 713

F.2d 795 (D.C. Cir. 1983) ........................... 2, 14

The Assigned Car Cases, 274 U.S. 564

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

Baeder v. Heckler, 768 F.2d 547 (3d Cir.

1985) ...........................................................

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) ...................................................

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

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

Brown & Williamson Tobacco Corp. v. FDA,

153 F.3d 155 (4th Cir. 1998), aff’d, 529

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

Camp v. Pitts, 411 U.S. 138 (1973) ...............

CBS v. United States, 316 U.S. 407 (1942) ..... 5, 6

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) ...........................................

DeOtte v. Azar, 393 F. Supp. 3d 490 (N.D.

Tex. 2019) ...................................................

iii

TABLE OF AUTHORITIES—continued

Page

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

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

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

(1979), superseded by statute on other

grounds, Cable Communications Policy Act

of 1984, Pub. L. No. 98-549, 98 Stat. 2779,

as stated in Manhattan Cmty. Access Corp.

v. Halleck, 139 S. Ct. 1921 (2019) ..............

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000), superseded by statute,

Family Smoking Prevention and Tobacco

Control Act, Pub. L. No. 111-31, 123 Stat.

1776 (2009) .................................................

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

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

Frothingham v. Mellon, 262 U.S. 447

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

Frozen Food Express v. United States, 351

U.S. 40 (1956) .............................................

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) ..... 21, 24

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) ......

TABLE OF AUTHORITIES—continued

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) ..........................................................

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

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

Cir. 1939), rev’d, 310 U.S. 113 (1940) ..........

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) ......

Page

TABLE OF AUTHORITIES—continued

Page

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) .... 5, 6

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) ............

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) .......................................................... 6, 25

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

(1925) ........................................................ 25, 26

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. 84 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)........

Taylor v. Sturgell, 553 U.S. 880 (2008) ........

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

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

TABLE OF AUTHORITIES—continued

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) ..........................................................

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), overruled by Real

Truth About Abortion, Inc. v. FEC, 681

F.3d 544 (4th Cir. 2012) .............................

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) ...................................................

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) ....................................................

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

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

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

Page

STATUTES AND REGULATIONS

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

Stat. 2721 (amending 5 U.S.C. §§ 702,

703) .............................................................

Emergency Price Control Act of 1942, Pub.

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

vii

TABLE OF AUTHORITIES—continued

Page

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) .....................................

5 U.S.C. § 551 ................................................ 2, 14

§ 705 ................................................

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

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) ........................................

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

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

RULES

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

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

LEGISLATIVE MATERIALS

H.R. Rep. No. 79-180 (1946) .........................

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) ...............

SCHOLARLY AUTHORITIES

Samuel Estreicher & Richard L. Revesz,

Nonacquiescence by Federal Administrative Agencies, 98 Yale L.J. 679 (1989) .......

viii

TABLE OF AUTHORITIES—continued

Page

James Wm. Moore & Marcus Cohn, Federal

Class Actions, 32 Ill. L. Rev. 307 (1937) .... 22, 23

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, 23, 24

Mila Sohoni, The Power to Vacate a Rule,

Geo. Wash. L. Rev. (forthcoming 2020) .....

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) ..............................

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 forthcoming The Power to Vacate a Rule,

Geo. Wash. L. Rev. (2020), which will address the

scope of the federal courts’ power to “set aside” agency

regulations, and The Lost History of the “Universal” Injunction, 133 Harv. L. Rev. 920 (2020), which assesses

the history and constitutionality of nationwide injunctions.

The government’s petition raises the question

whether a court may stay the effective date of federal

agency action under the APA while litigation is pending. 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 staying

the effectiveness 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 filed blanket consents to the

filing of amicus briefs with the Court.

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

courts to issue nationwide injunctions not only is constitutional but squares entirely with traditional equity

practice.

ARGUMENT

I. THE APA AUTHORIZES UNIVERSAL RELIEF FROM REGULATORY ACTION.

A. The APA Authorizes Courts To “Set

Aside” Regulations In Their Entirety And

To “Stay” Their “Effective Date” Pending

Litigation.

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). These provisions authorize the reviewing court to “set aside” “the whole … of an agency

rule” held “unlawful.” Rules are not “set aside as to the

plaintiffs,” contra Br. for Profs. Bagley and Bray as

Amici Curiae 14 (“Bagley-Bray Br.”); Gov’t Br. 49.

Rules are set aside, full-stop. That relief—vacatur—

erases the rule, restoring the status quo ante.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

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

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

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 had issued an order rescinding its passiverestraint 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

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).

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

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.”).

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”).

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

threatened with losses of licenses under 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 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

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).

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.

that result finds further support in legislative history.

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

every form of agency power, proceeding, action and inaction.” S. Rep. No. 79-752, at 197-98 (1945) (Senate

Judiciary Committee Report). They understood these

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

invalid,” including in a case (as here) in which a rule

was promulgated through informal rulemaking. Id. at

214 (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 may show the facts upon which he

predicates such invalidity.” (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 re-

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).

duce 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

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 others

areas where the 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 reviewing 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 DC Circuit

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

been concerned about the courts’ broad reversals of

regulations 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 regulations,

the APA further authorizes courts to prevent regulations from coming into effect 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,” so by its plain

terms Section 705 allows a reviewing court to issue appropriate process to postpone an entire rule’s “effective

date.” This Court has itself exercised that power to

preserve the status quo by staying entire rules pending judicial review. See Order, West Virginia v. EPA,

No. 15A773 (U.S. Feb. 9, 2016). And it has declined to

disturb lower-court decrees staying rules universally.

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

(mem.).

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

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).

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) & Fed. R. Civ. P. 65).10

B. Amici’s Suggestion That Courts May “Set

Aside” Regulations Only As To Particular

Plaintiffs Defies Text And Precedent.

1. Amici Bagley and Bray and the government contend that, before the APA, it was “conventional” judicial practice to “set aside” agency action only as to a

suit’s plaintiffs. So, they say, the APA’s “set aside” language should be read only to authorize plaintiff-specific relief absent a clear statement allowing broader

relief. Bagley-Bray Br. 14; Gov’t Br. 49.

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.”).

Amici draw the wrong inference from pre-APA “conventional” practice. That adjudication, rather than

rulemaking, was more prevalent in the pre-APA period (as amici emphasize) is not relevant; it sheds no

light on the pertinent question: what type of relief did

courts offer when broad-gauged regulatory action was

under review? As discussed, 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. Strikingly, neither the

government nor amici cite even a single case in which

a court reviewing a regulation used the APA’s language, “set aside,” in the unusual sense they urge as

its natural meaning: to “set aside” the regulation only

“as to a particular plaintiff.”11 That is because the natural, and “conventional,” meaning of “setting aside” a

regulation is to invalidate it entirely.

Amici also have it backwards in urging that a clear

statement was required for Congress to grant equitable authority to review agency action. The governing

rule was the opposite, for as this Court had repeatedly

emphasized in the run-up to the APA’s enactment,

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.

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

393-94 (4th Cir. 2001) (cited at Bagley-Bray Br. 12) 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,” as amici would have it. 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.

321, 330 (1944); Stark v. Wickard, 321 U.S. 288, 31011 (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.

79-180, at 275 (1946) (House Judiciary Committee Report). No “clear statement” of broad remedial authority was required for courts to have that power under

the APA. But it anyway would not matter if a clear

statement was required, 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 understanding 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 clear statement that amici demand.

2. Amici also suggest that the APA’s grant of “set

aside” authority must be plaintiff-specific because Section 706 allows a court to set aside “agency action, findings, and conclusions,” and “findings” and “conclusions” are subjects of appellate review and are specific

to a plaintiff. So, because a word is known by its fellows, “agency action” must also be plaintiff-specific.

But their premise is wrong, for “findings” and “conclusions” need not be specific to a plaintiff. A perfect example is Frozen Food Express v. United States, 351

U.S. 40 (1956), where the agency made “findings”

about which product classes were “agricultural” and so

exempt from carriage permitting requirements, and

this Court found that the agency’s action was subject

to pre-enforcement review. Id. at 41-42. Because review of “findings” is not limited to the review of a lower

court’s findings in a particular case, Congress’s inclusion of “findings” does not suggest that Section 706 relief can extend no further than enjoining agency action

against a plaintiff.

3. Amici next suggest that because appellate courts

often “set aside” (meaning vacate or reverse) lower

court orders and judgments, the APA’s use of that

phrase can only have been intended to refer to plaintiff-specific relief. See Bagley-Bray Br. 12-13. Certainly, “set aside” was used in that particular way. But

it was also, at the time of the APA’s enactment, used

to denote judicial invalidation of generally applicable

laws and regulations.

The 1941 Attorney General’s Report, written by a

venerated group of experts in administrative law, 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 argument to aid in judging it; the entire administrative record must be examined.” Id.

Congress likewise understood that federal laws and

regulations 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 Emer-

gency 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 the appellate-review,

plaintiff-specific sense to which amici point, but instead refer to judicial review of laws or regulations. So

amici are wrong to suggest that “set aside” was a term

of art limited to the reversal of judicial judgments and

narrow-gauged orders.

4. Amici further stress that the APA’s review scheme

was largely modeled on appellate court review of district court judgments. See Bagley-Bray Br. 12-13. But

that model supports, rather than undermines, reading

the APA to allow universal relief. The APA defines

“rule[s]” and “order[s]” as types of “agency action,” 5

U.S.C. 551(13), and it treats both rules and orders as

analogous to a lower-court decision that can be set

aside and vacated by an appellate court, 5 U.S.C. 706.

When an inferior court’s decision is vacated by a superior court, that decision no longer has force. Similarly,

when an agency’s defective rule is vacated by a reviewing court under the APA, the rule no longer has force.

See, e.g., Action on Smoking & Health, 713 F.2d at 797

(so holding); 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 a party.

5. Amici are, 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 Bagley-Bray Br. 11. The statute’s language says no such

thing. Beyond that, Rule 23 was 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. Rule 23’s adoption 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 F. Supp.

831, 833-34 (S.D.N.Y.), aff’d, 419 U.S. 987 (1974);

Sepulveda v. Block, 1985 WL 1095, at *5 (S.D.N.Y.

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). Amici’s contention (at 11) that

today Rule 23 “takes up” the “entire waterfront” 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).

Taylor v. Sturgell, 553 U.S. 880 (2008)—treated by

amici (at 11) as standing for the proposition that Rule

23 preempts the possibility of universal relief under

the APA—means no such thing. Taylor rejected the

idea that preclusive effect could be imposed on a nonparty outside the Rule 23 framework. But when a

court issues a nationwide injunction, it does not preclude any non-party from doing anything. The court’s

decree only orders the defendant before it—the federal

officer or agency—to refrain from violating the law. In

short, the APA’s clear statutory language continues to

allow courts to “set aside” regulations and to enjoin

them pending a decision on whether to set them aside.

Rule 23 does not change that.

C. The Government And Amici’s Policy Concerns Are For Congress To Consider,

Overstated, And Outweighed By Countervailing Concerns.

1. Amici stress that allowing courts to enjoin or “set

aside” regulations with national effect has negative

“practical consequences.” Bagley-Bray Br. 18. 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 consequences” 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 in all cases. 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 common-law-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 regulations 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 regulations will not challenge them and the government will be free to treat illegal regulations 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

regulations.

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 and amici’s policy arguments for eliminating the relief authorized by the

APA, they are wrong. The government’s “running the

table” problem (at 45), to the extent such a problem

exists, still remains even if requests for broad relief are

channeled into Rule 23 suits as amici would like to see

happen. For example, the government had to run the

table 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

Bagley-Bray Br. 18, and injunctions issuing without a

“developed factual record,” see id. at 19, are overblown.

The former is an inevitable byproduct of all litigation

in a multi-district system that broadly permits plaintiffs to lay venue, and the latter ignores that in APA

cases the record is ready-made by the agency, see

Camp v. Pitts, 411 U.S. 138, 142 (1973).12

12 Despite alleged concerns about percolation, the government

notes (at 43) that other courts have opined on the rules at issue

here. Amici’s concerns about “conflicting” injunctions, see BagleyBray Br. 23-24 (citing DeOtte v. Azar, 393 F. Supp. 3d 490, 51214 (N.D. Tex. 2019)), are similarly misplaced. In DeOtte, the district court enjoined the application of the contraception mandate

to a set of entities, 393 F. Supp. 3d at 513-15, whereas the district

court in this case considered the validity of exemptions from that

mandate. There is thus no conflict—and the same situation could

equally have arisen if this case (like DeOtte) was a Rule 23 class

action.

Amici’s suggestion that the practice of “nonacquiescence” supports rejecting universal relief against rules

is misguided. Nonacquiescence involves adjudications, not rules—it generally occurs “when [an] agency

makes policy through administrative adjudication.”

Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 Yale L.J.

679, 688 n.35, 720 n.215 (1989). It means that the

agency continues to adjudicate subsequent cases under its own policy even after a reviewing court disapproves that policy in a separate case. Id. at 716 n.196.

The difference is critical. When a court sets aside an

adjudication—say, a Social Security disability claim—

that decision may implicate an agency’s generally applied standards for conducting adjudications, but all

that is formally being set aside by the reviewing court

is the final agency action at issue in the case. See, e.g.,

Baeder v. Heckler, 768 F.2d 547, 553 (3d Cir. 1985).

When a rule is under review, there is only one agency

action for the court to review—the rule itself. If that

rule is set aside, an agency that carried on as if the rule

still existed would not be “refusing to acquiesce”; it

would be disobeying the mandate of the court that set

aside the rule. That is why agencies do not engage in

this form of “nonacquiescence,” and also why the APA

should not now be read to allow agencies to disregard

(not “nonacquiesce in”) a decision setting aside a rule.

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

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. 43-44; Bagley-Bray Br.

28). Using this case as an example, the complaining

parties have standing to complain about the regulations at issue, and the district court had jurisdiction

over the government and express statutory authority

to order it to stay its regulation. That the effect of a

stay of the agency’s rule 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). There is no standing problem with a plaintiff obtaining such an injunction, even though (like the

injunction here) it protects non-parties who would otherwise be harmed by the defendant’s illegal acts.

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.13 There is no standing problem with a court

granting judgment for the plaintiff even though the

judgment’s effect helps non-plaintiffs.

Further, no party here appears to dispute that in a

class action, a court may issue nationwide relief. That

demonstrates that whatever complaint there may be

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

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 and amici also suggest 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 “set aside” rules and “may issue all necessary and

appropriate process” to “stay the[ir] effective date.”

In any event, the broad relief here aligns with

longstanding equity practice.

1. Modern-era nationwide injunctions continue 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.14 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 the traditions of equity.

Amici contend 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-

14 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”).

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 … who

were not parties to it”). Amici cite cases of the first

type (at 10), but the second type is the correct analog

to this case, where 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 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). Amici minimize that injunction as merely enforcing “the government’s contractual commitment,” but their argument is

one of constitutional infirmity, and they have no theory

for why the Court had the power to issue such an injunction if (as they believe) the plaintiffs had no standing to seek it and traditional equity would forbid it.

The courts reconfirmed their willingness to issue injunctions protecting non-plaintiffs from enforcement

of federal law 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 against federal statutory

law 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).15

15 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

3. Courts similarly and repeatedly enjoined the enforcement of state law in this period. 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 such injunctions.

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

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

(1908). Neither the government nor amici suggest that the Constitution requires this Court to walk back Young just because it

represented an evolution of equity practice.

Nor is there anything important to be learned from the “absence” of nationwide injunctions during the “New Deal era.” Contra Bagley-Bray Br. 3. Nationwide injunctions existed both before

and after the New Deal. 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 broad injunction on standing grounds); Frothingham v. Mellon, 262 U.S. 447

(1923) (affirming dismissal 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).

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 an 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 enforcement 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. Contra Gov’t Br.

46 (asserting, without citation, the government’s untested assertion that more nationwide injunctions

have been issued in the last 3 years than in prior years

combined).16 What is new is the contention that such

universal relief could only be sought through a Rule 23

class 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 regulations and to stay their

effective date, with universal effect, while litigation is

pending.

Respectfully submitted,

DAVID S. KANTER

SIDLEY AUSTIN LLP

787 Seventh Avenue

New York, NY 10019

CHRISTOPHER M. EGLESON*

SIDLEY AUSTIN LLP

555 West Fifth Street

Los Angeles, CA 90013

(213) 896-6108

cegleson@sidley.com

Counsel for Amica Curiae

April 8, 2020

* Counsel of Record

16 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 Attorney General.

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.