Amicus Curiae Brief — Trump v. Hawaii, 138 S. Ct. 923 (2018) (No. 17-965)

No. 17-965

In the

Supreme Court of the United States

DONALD J. TRUMP, et al.,

Petitioners,

V.

STATE OF HAWAII, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICI CURIAE

NATIONAL LEAGUE OF CITIES,

INTERNATIONAL CITY/COUNTY MANAGE-

MENT ASSOCIATION, AND INTERNATIONAL

MUNICIPAL LAWYERS ASSOCIATION

IN SUPPORT OF RESPONDENTS

LISA E. SORONEN STUART BANNER

State and Local Lega! Counsel of Record

Center UCLA School of Law

444 N. Capitol St. NW Supreme Court Clinic

Suite 515 405 Hilgard Ave.

Washington, DC 20001 Los Angeles, CA 90095

(202) 434-4845 (310) 206-8506

lsoronen@sso.org banner@law.ucla.edu

i

QUESTION PRESENTED

This brief addresses only question 4 in the gov-

ernment’s brief: “Whether the global injunction is

impermissibly overbroad.”

TABLE OF CONTENTS

QUESTION PRESENTED .............00scsccccccssceseessessecsees i

FARE SE FAS EEE ENED prvtesicvnssnanrnconesorsensasssceeen ili

INTEREST OF AMICI CURIAE...................:ccecceseeees |

SUMMARY OF ARGUMENT....................sssesssssscsenees 2

FIT cnctnicnietiininnctnmsnincensinieseansitsbintiansmeiove 3

District courts have the authority to provide

injunctive relief that benefits non-parties as

Re re I: clictetirnitasicbinibernnnceststebinnnisepininssescsesen 3

A. A district court’s remedial authority is not

Be I aii cccssircaniaitnteeieinacandeacmsies 3

B. Injunctions routinely benefit non-parties............. 5

C. Many of this Court’s cases have involved

injunctions that benefitted non-parties. .............. 7

D. The courts of appeals have unanimously

held that injunctions may benefit non-

STII cxssseensiiicanevessepemedibdedoeineddidiiatinhpibtatediedininteates 10

E. Neither constitutional nor equitable prin-

ciples require the benefit of injunctions to

be confined to plaintiffs. .......................:ccccccceeeeees 16

F. The APA presumes that courts may issue

injunctions that benefit non-parties. ................. 18

G. Some of the government's arguments

against these injunctions bear on their

appropriateness in any particular case,

not on the court’s authority to issue them.......... 20

H. These injunctions are especially im-

portant where federalism is at stake. ................ 22

NIE iresiiesaditeisndsitngpassnnsticsninietsivaianaianets 25

*+*

TABLE OF AUTHORITIES

CASES

ACLU v. Reno, 31 F. Supp. 2d 473 (E.D. Pa.

IIIT cokcsdenepadjasiuanateninestigueamniamesanaberdasiaidodsunedeccessdaneed 8

Ashcroft v. ACLU, 542 U.S. 656 (2004) ..................... 8

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

SRS SRE LES RB a 7 HL Se A 14, 15

Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786

TINIE . cdcisncnctubandlabeieiboaaieduelianaanineddibialdaetretaislesasnadnhas 8

Califano v. Yamasaki, 442 U.S. 682 (1979) ............ 21

City of Arlington v. FCC, 668 F.3d 229 (5th

BE SII ii nrchniecimecpictsiinedtiensantitigednensternsintidibpimsimeatle 24

City of Berkeley v. U.S. Postal Serv., 2015

WL 17376523 (N.D. Cal. 2015) ................:c0cseeeeeeeees 24

City of Oakland v. Lynch, 798 F.3d 1159 (9th

nr IIE Sab Sainte Vices ciatadendeniatachasintiontgleninnicebainaunennieaseins 24

City of Spokane v. Federal Nat'l Mortgage

Ass'n, 775 F.3d 1113 (9th Cir. 2014) ..........0000....... 24

County of Santa Clara v. Trump, 250 F.

Supp. 3d 497 (N.D. Cal. 2017) ...........ccccorccscescreeees 24

Decker v. O'Donnell, 661 F.2d 598 (7th Cir.

SUT iasatesieceaiinsnmbeieliaiiddeiidpiiagnsadeinadautabimsebannabcuestatte 14

Dimension Fin. Corp. v. Bd. of Governors of

the Fed. Reserve Sys., 744 F.2d 1402 (10th

Cir. 1984), affd, 474 U.S. 361 (1986) .................... 15

Earth Island Inst. v. Ruthenbeck, 490 F. 3d

687 (9th Cir. 2007), affd in part, rev'd in

part on other grounds, 555 U.S. 488 (2009) .... 14, 20

Evans v. Harnett Cty. Bd. of Educ., 684 F.2d

BEE EI TENET: seisictteicnnnceesgnhaaisiousnnsioneiinanindnsibiehesih 12

Galvan v. Levine, 490 F.2d 1255 (2d Cir.

UPI i iindsecmrans eckticca Akasedtideeieaaenietaiastesalindbadadeads 11

iV

Grupo Mexicano de Desarrollo, S.A. v.

Alliance Bond Fund, Inc., 527 U.S. 308

ca ae td sateameidtion 18

Harmon v. Thornburgh, 878 F.2d 484 (D.C.

ITE lesan to OP Pa On Bo aa Ras en Sh 20

Hollingsworth v. Perry, 570 U.S. 693 (2013) ............. 7

Kleppe v. New Mexico, 426 U.S. 529 (1976) ............... 9

Lewis v. Casey, 518 U.S. 343 (1996) .................00..... 16

Lujan v. Natl Wildlife Fed’n, 497 U.S. 871

RROD ERG or vie RIS ae 19

Massie v. Watts, 10 U.S. 148 (1810) .................000..00. 4

Meyer v. Brown & Root Constr. Co., 661 F.2d

I I oceans tninbemdeosoonens 13

Missouri v. Jenkins, 515 U.S. 70 (1995) .................. 21

Montgomery Cty. v. FCC, 811 F.3d 121 (4th

ON a ee i enacemessenebas 24

National Mining Ass’n v. U.S. Army Corps of

Eng’rs., 145 F.3d 1399 (D.C. Cir. 1998) ................ 15

New Jersey v. City of New York, 283 U.S. 473

RA ARE ES Cae aE SER Sl Ae ae Ee 4

New Mexico v. Morton, 406 F. Supp. 1237

IIE EIT nc cnceicidecsdidecbiseiatedidgianasdddsaneatconteoness 9

New York v. O'Neill, 359 U.S. 1 (1959) .............0..00.... 4

Printz v. United States, 521 U.S. 898 (1997) ............. 8

Printz v. United States, 854 F. Supp. 1503

RE SeaTac 8

Richmond Tenants Org., Inc. v. Kemp, 956

F.2d 1300 (4th Cir. 19902) ..............ccccccscerceeeeess 11, 12

Sable Comme’ns. of Calif., Inc. v. FCC, 492

Le IED caiiiuseiticheessidesiassscnceadtapaiouanamienmtesesedsies 8

Sable Comme’ns. of Calif., Inc. v. FCC, 692

F. Supp. 1208, 1210 (C.D. Cal. 1988) ...................... 8

Selective Serv. Sys. v. Minn. Pub. Interest

Research Grp., 468 U.S. 841 (1984) ...............00....0.. i)

Vv

Sprogis v. United Air Lines, Inc., 444 F.2d

ROS Cre Gia: BIG OP ccccsactenscoctascossatedsnuichdestantersecies 14

Steele v. Bulova Watch Co., Inc., 344 U.S.

ED CE cinacecscacocsasacsepasecssalectnebinchtensddentinhabeatieretss 4

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

Cir. 2015), affd by an equally divided

Court, 136 S. Ct. 2271 (2016) .................... 12, 13, 21

Town of Chester v. Laroe Estates, Inc., 137 S.

COR, BINED. kssoncccistesnciovodianebeiisniennelasicebcceanabaaan 16

Trump v. IRAP, 137 8. Ct. 2080 (2017) ............... 9, 10

United States v. Oakland Cannabis Buyers’

Coop., 532 U.S. 483 (2001) ............cccccceccesessersseeeees 20

Video Software Dealers’ Ass'n v.

Schwarzenegger, 2007 WL 2261546 (N.D.

ERIE, ED conscecsdsnvcniniocmnisiedusetnnndindnntaienliiiaditladamass sitet 8

Virginia Soc’y for Human Life, Inc. v. FEC,

263 F.3d 379 (4th Cir. 2001) ...........ccccccccccceeseeeeeees 12

Vulcan Soc’y v. Civil Serv. Comm’n, 490 F.2d

Be Ce ee STUD paeenndttnsmensansnscdinanechitidenenlliiees 10, 11

Walters v. Nat'l Ass’n of Radiation Survivors,

GH Tes ED tecvicssenecescsisviniskavststienanctaneal 8,9

Washington v. Reno, 35 F.3d 1093 (6th Cir.

SEE ccxistesesinscentbicsektainduinetenee 13, 14

CONSTITUTIONAL PROVISION

oe ee Ue Le Oe OY eae ene ee 21

STATUTE

SFG Be PID vencccotccceseesseacsdinicsddebosiestrersanniaaiel 18

OTHER AUTHORITIES

American Law Institute, Principles of the

Law of Aggregate Litigation (2010) .................... 6, 7

vi

William Blackstone, Commentaries on the

Laws of England (1768) ...........cccccccccceesseeeeeereees

Philip Hamburger, Law and Judicial Duty

SNEED addmininsanontepsnbnesesntincsecseseseenseecersesesseneeeresccecs

Steve Pincus, /688 The First Modern

Si IIIS sintcncssnenncinaspennaconasensenncescecacessce

Bernard Schwartz, Forms of Review Action

in English Administrative Law, 56 Colum.

hes PIE IE TIMEIEIETD ccncccsecesnonceccecccesonnesssconscsececocees

U.S. Census Bureau, 2012 Census of Govern-

U.S. Census Bureau, Government Organ-

ization Summary Report: 2012 ................00000060.

Charles Alan Wright et al., Federal Practice

& Procedure (3d ed. Westlaw) .........................

INTEREST OF AMICI CURIAE'!

The National League of Cities is the oldest and

largest organization representing municipal

governments throughout the United States. Its

mission is to strengthen and promote cities as

centers of opportunity, leadership, and governance.

Working in partnership with 49 State municipal

leagues, NLC serves as a national advocate for the

more than 19,000 cities, villages, and towns it

represents.

The International City/County Management Asso-

ciation is a nonprofit professional and educational

organization of over 9,000 appointed chief executives

and assistants serving cities, counties, towns, and

regional entities. ICMA’s mission is to create excel-

lence in local governance by advocating and develop-

ing the professional management of local govern-

ments throughout the world.

The International Municipal Lawyers Association

has been an advocate and resource for local govern-

ment attorneys since 1935. Owned solely by its more

than 3,000 members, IMLA serves as an interna-

tional clearinghouse for legal information and coop-

eration on municipal legal matters.

Respondents speak for local governments, most of

which are very small and lack the resources to sue

the United States when it oversteps the bounds of

' No counsel for a party authored this brief in whole or in part,

and no person other than amici made a monetary contribution

intended to fund the preparation or submission of this brief.

Petitioners have filed a blanket consent to amicus briefs. Re-

spondents have consented to the filing of this brief.

2

federalism. They rely on a handful of big cities to ob-

tain injunctions barring federal encroachment. The

novel and deeply mistaken view of federal courts’

remedial power advanced in section IV of the United

States’ brief would cause great harm to local gov-

ernments throughout the country.

SUMMARY OF ARGUMENT

Where a factory unlawfully pollutes the air, may a

district court enjoin the pollution? Or must the

court’s injunction be limited to only those particles of

pollution that affect the plaintiff personally?

Where a state operates unlawfully segregated

schools, may a district court require the schools to be

integrated? Or is the court limited to ordering the

schools to admit only the individual students named

as plaintiffs?

Where the federal government exceeds its consti-

tutional authority, may a district court order the

government to stop? Or is the court constrained to

order the government to stop only with respect to the

plaintiffs, so that every state, city, and individual

affected by the federal government's overreach must

bring its own separate lawsuit and obtain its own

separate injunction?

The conventional answer to each of these ques-

tions is, of course, that federal courts have the au-

thority to provide injunctive relief that benefits non-

parties as well as the plaintiff. Provided that the

plaintiff has standing, the court may require the de-

fendant to cease its unlawful activity, even if the

plaintiff will not be the only one who benefits. The

court certainly need not do so in every case—

3

injunctions often benefit the plaintiff and no one

else—but in an appropriate case, the court has the

authority to issue an injunction that benefits non-

parties in addition to the plaintiff.

In a few pages at the very end of its brief (U.S. Br.

72-76), the government proposes an astonishing con-

traction of the remedial power of the federal courts.

According to the government’s novel theory, an in-

junction may “redress a plaintiffs own cognizable

injuries” (U.S. Br. 72) but not the injuries of anyone

else.

The government is mistaken. District courts have

the authority to provide injunctive relief that bene-

fits non-parties as well as the plaintiff. These injunc-

tions are extremely common. In fact, they have fig-

ured in many of this Court’s cases. This is why the

courts of appeals have unanimously held that in-

junctions may benefit non-parties. Contrary to the

government's view, neither constitutional nor equi-

table principles require the benefit of injunctions to

be confined to plaintiffs. Some of the government's

arguments against these injunctions, in any event,

bear on their appropriateness in any given case, not

on the court’s authority to issue them.

ARGUMENT

District courts have the authority to provide

injunctive relief that benefits non-parties as

well as the plaintiff.

A. A district court’s remedial authority is

not limited by geography.

The government repeatedly uses the term “global”

to disparage the injunctions it dislikes (U.S. Br. 72,

4

75), but that is a misnomer. It has long been accept-

ed—and the government does not dispute—that a

court's remedial authority is not confined to the

boundaries of its judicial district, or its circuit, or

even the United States. “[T]he District Court in ex-

ercising its equity powers may command persons

properly before it to cease or perform acts outside its

territorial jurisdiction.” Steele v. Bulova Watch Co.,

Inc., 344 U.S. 280, 289 (1952). This was a basic prin-

ciple of equity in England and one this Court adopt-

ed more than two centuries ago. Massie v. Watts, 10

U.S. 148, 160 (1810) (“the jurisdiction of a court of

chancery is sustainable wherever the person be

found, although lands not within the jurisdiction of

that court may be affected by the decree”) (citing

English precedent). See also New York v. O’Neill, 359

U.S. 1, 8-9 (1959) (where a court has “personal juris-

diction over respondent by virtue of his presence

within that State,” the court may order respondent

to undertake actions to be “carried on in a foreign

jurisdiction”); New Jersey v. City of New York, 283

U.S. 473, 482 (1931) (where the defendant is before

the court, the court may enjoin the defendant’s con-

duct “whether within or without the United States”).

The rule could hardly be otherwise. If the remedi-

al authority of a district court were confined to its

judicial district, an injunction would be of little val-

ue, because the defendant could simply continue its

unlawful conduct in a different district. To stop the

infringement of a patent, for example, the plaintiff

would have to file a separate lawsuit and obtain a

new injunction in every district where the defendant

might persist in his infringement. That has never

been the law.

5

Despite the government's use of the term “global”

to disparage the injunction in this case, therefore,

the government’s objection to the injunction is not to

its geographic scope. Rather, the government's beef

is that the injunction benefits non-parties as well as

parties. But this objection is groundless, because in-

junctions routinely benefit non-parties, and they

have done so for a very long time.

B. Injunctions routinely benefit non-parties.

Injunctions often benefit non-parties as well as

the plaintiff. This is so common that we often don’t

even notice it.

For example:

e When a court finds that a religious display vio-

lates the Establishment Clause, the court often or-

ders the display to be taken down. The court does

not redress only the plaintiffs injury—for instance,

by ordering the display to be covered up whenever

the plaintiff is within viewing distance. Rather, the

court simply forbids the unlawful display, in a way

that benefits everyone offended by the display, not

just the plaintiff.

e When a court finds that the drawing of electoral

districts violates the Equal Protection Clause or the

Voting Rights Act, the court often orders the dis-

tricts to be redrawn in a lawful manner. The court

does not redress only the plaintiffs injury—for in-

stance, by boosting the power of the plaintiffs own

vote but no one else’s. Rather, the court simply for-

bids use of the unlawful districts, in a way that bene-

fits everyone whose vote is affected, not just the

plaintiff.

6

e When a court finds that prison conditions vio-

late the Eighth Amendment, the court often orders

the prison to correct those conditions. The court does

not redress only the plaintiffs injury—for instance,

by requiring that the plaintiff, but no other prisoner,

be given minimally adequate food and shelter. Ra-

ther, the court simply prohibits the unlawful prison

conditions, in a way that benefits all prisoners, not

just the plaintiff.

We could fill this brief with hundreds of similar

examples, but the point should already be clear. In-

junctions—especially injunctions against the gov-

ernment—routinely benefit everyone affected by the

government's conduct. In such cases, relief is not

limited to the plaintiff. As the Wright & Miller trea-

tise explains,

In most civil-rights cases plaintiff seeks injunc-

tive or declaratory relief that will halt a discrim-

inatory employment practice or that will strike

down a statute, rule, or ordinance on the ground

that it is constitutionally offensive. Whether

plaintiff proceeds as an individual or on a class-

suit basis, the requested relief generally will

benefit not only the claimant but all other per-

sons subject to the practice or the rule under at-

tack.

7A Charles Alan Wright et al., Federal Practice &

Procedure § 1771 (3d ed. Westlaw).

In its Principles of the Law of Aggregate Litiga-

tion, the American Law Institute recognizes the

same truth:

When a claimant seeks a prohibitory injunc-

tion or a declaratory judgment with respect to a

7

generally applicable policy or practice main-

tained by a defendant, those remedies—if afford-

ed—generally stand to benefit or otherwise affect

all persons subject to the disputed policy or prac-

tice, even if relief is nominally granted only as to

the named claimant. Even in litigation against

governmental entities, to which limitations on

preclusion may apply as a formal matter, the

generally applicable nature of the policy or prac-

tice typically means that the defendant govern-

ment will be in a position, as a practical matter,

either to maintain or to discontinue the disputed

policy or practice as a whole, not to afford relief

therefrom only to the named claimant.

American Law Institute, Principles of the Law of Ag-

gregate Litigation § 2.04 comment a (2010).

The government thus errs in asserting that there

is something “troubling” (U.S. Br. 72) or “misguided”

(U.S. Br. 76) about injunctions that benefit people

other than the plaintiff. Injunctions routinely do

that.

C. Many of this Court’s cases have involved

injunctions that benefitted non-parties.

Injunctions that benefit non-parties have figured

in many of this Court’s cases. Such injunctions are so

commonplace that the governmental defendants in

these cases did not even argue in this Court that the

lower court had exceeded its authority by extending

the benefit of the injunction to non-parties.

For example:

e In Hollingsworth v. Perry, 570 U.S. 693, 702

(2013), the district court enjoined California officials

8

from enforcing a state law barring gay marriage—

not just against the plaintiffs but against everyone.

e in Brown v. Entm’t Merchs. Ass'n, 564 U.S. 786,

790 (2011), the district court enjoined the enforce-

ment of a state law imposing restrictions on violent

video games—not just against the plaintiffs but

against everyone. (For the text of the injunction, see

Video Software Dealers Ass'n v. Schwarzenegger,

2007 WL 2261546, *12 (N.D. Cal. 2007)).

e In Ashcroft v. ACLU, 542 U.S. 656, 663 (2004),

the district court enjoined the Attorney General from

enforcing a statute restricting explicit materials on

the Internet—not just against the plaintiffs but

against everyone. (For the text of the injunction, see

ACLU v. Reno, 31 F. Supp. 2d 473, 498-99 (E.D. Pa.

1999)).

e In Printz v. United States, 521 U.S. 898, 904

(1997), the district court enjoined the United States

from enforcing a statute requiring state and local

law enforcement officers to conduct background

checks of prospective handgun purchasers—not just

against the plaintiff but against everyone. (For the

text of the injunction, see Printz v. United States,

854 F. Supp. 1503, 1519-20 (D. Mont. 1994)).

e In Sable Comme'ns. of Calif., Inc. v. FCC, 492

U.S. 115, 119 (1989), the district court enjoined the

FCC from enforcing a statute banning indecent tele-

phone messages—not just against the plaintiff but

against everyone. (For the text of the injunction, see

Sable Commce'ns. of Calif., Inc. v. FCC, 692 F. Supp.

1208, 1210 (C.D. Cal. 1988)).

e In Walters v. Natl Ass’n of Radiation Survivors,

473 U.S. 305, 316 (1985), the district court enjoined

9

the Veterans Administration from enforcing a stat-

ute limiting attorneys’ fees in proceedings before the

VA—not just against the plaintiffs but against eve-

ryone. See also id. at 336 (O’Connor, J., concurring)

(describing the district court’s order as “a nationwide

injunction”).

e 'n Selective Serv. Sys. v. Minn. Pub. Interest Re-

searc.. Grp., 468 U.S. 841, 846 (1984), the district

court entered a “nationwide injunction” barring the

federal government from enforcing a statute denying

education funds to students who failed to register for

the draft—not just against the plaintiffs but against

everyone.

e In Kleppe v. New Mexico, 426 U.S. 529, 534

(1976), the district court enjoined the Secretary of

the Interior from enforcing the Wild Free-Roaming

Horses and Burros Act—not just against the plain-

tiffs but against everyone. (For the text of the injunc-

tion, see New Mexico v. Morton, 406 F. Supp. 1237,

1239 (D.N.M. 1975)).

This is just a partial list. We could have provided

many more examples.

One additional example deserves special mention.

When an earlier installment of the instant litigation

reached the Court last Term, the Court refused the

government's request to stay an injunction “that

covered not just respondents, but parties similarly

situated to them—that is, people or entities in the

United States who have relationships with foreign

nationals abroad.” Trump v. IRAP, 137 S. Ct. 2080,

2087 (2017). The Court was evidently unpersuaded

by the government's argument that a_ so-called

“global injunction” was overbroad because non-

10

parties could benefit from it. See Petition for a Writ

of Certiorari 31-33, Trump v. IRAP, No. 16-1436

(June 1, 2017); Application for Stay 38-40, Trump v.

IRAP, No. 16-A-1190 (June 1, 2017).

The point of listing these cases is not to suggest

that the Court has approved, in a considered man-

ner, the practice of issuing injunctions that benefit

non-parties as well as plaintiffs. The Court has nev-

er addressed the question at length. Our purpose is

simply to demonstrate that these injunctions are so

ordinary, so unremarkable, that defendants normal-

ly do not even think to argue that there is anything

wrong with them. When the government is found to

be acting unlawfully, the district courts routinely en-

join the government from doing so, without limiting

the injunction to benefit only the plaintiffs.

D. The courts of appeals have unanimously

held that injunctions may benefit non-

parties.

Every court of appeals in which the question has

arisen has concluded that federal courts have the au-

thority to issue an injunction that benefits non-

parties.

In two opinions by Judge Friendly, the Second

Circuit held that a plaintiff need not file a class ac-

tion to obtain relief for similarly-situated people in

suits alleging unconstitutional government action,

because an injunction could prohibit the government

from acting unconstitutionally with respect to people

other than the plaintiff. In Vulcan Soc’y v. Civil

Serv. Comm'n, 490 F.2d 387, 391 (2d Cir. 1973), the

Second Circuit affirmed an injunction barring the

New York City Fire Department from using a dis-

11

criminatory employment examination. The district

judge “was entirely right in thinking it unnecessary,

from the plaintiffs’ standpoint, for him to decide on

class action designation in order to pass upon the is-

sues raised,” the Second Circuit explained, because

“lijf the examination procedures were found uncon-

stitutional as regards the named plaintiffs, they

were equally so as regards all eligible blacks and

Hispanics.” Jd. at 399. Judge Friendly returned to

the issue in a second case later the same year.

“{I}nsofar as the relief sought is prohibitory, an ac-

tion seeking declaratory or injunctive relief against

state officials on the ground of unconstitutionality of

a statute or administrative practice is the archetype

of one where class action designation is largely a

formality,” he wrote for the court. “[W]hat is im-

portant in such a case ... is that the judgment run to

the benefit not only of the named plaintiffs but of all

others similarly situated.” Galvan v. Levine, 490

F.2d 1255, 1261 (2d Cir. 1973).

The Fourth Circuit similarly affirmed a “nation-

wide” injunction prohibiting the federal government

from unconstitutionally using a summary process to

evict tenants from public housing, in a suit brought

by tenants and tenant organizations in Richmond

and Baltimore. Richmond Tenants Org., Inc. v.

Kemp, 956 F.2d 1300, 1302 (4th Cir. 1992). The gov-

ernment challenged “the nationwide scope of the

permanent injunction issued by the district court,”

id. at 1308, but the Fourth Circuit rejected the gov-

ernment’s challenge on the ground that the benefit of

an injunction need not be limited only to the plain-

tiffs before the court. “[A] federal district court has

wide discretion to fashion appropriate injunctive re-

12

lief,” the Fourth Circuit held. “When required by the

circumstances of the case, district courts have issued

injunctions which apply to conduct by the Attorney

General of litigation in other federal courts.” Id. See

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

F.3d 379, 393 (4th Cir. 2001) (noting that

“[njationwide injunctions are appropriate if neces-

sary to afford relief to the prevailing party”); Evans

v. Harnett Cty. Bd. of Educ., 684 F.2d 304, 306 (4th

Cir. 1982) (“An injunction warranted by a finding of

unlawful discrimination is not prohibited merely be-

cause it confers benefits upon individuals who were

not plaintiffs or members of a formally certified

class.”).

The Fifth Circuit takes the same view. In Texas v.

United States, 809 F.3d 134, 188 (5th Cir. 2015),

affd by an equally divided Court, 136 S. Ct. 2271

(2016), the Fifth Circuit affirmed an injunction pro-

hibiting the federal government from implementing

the DAPA immigration program anywhere in the

country, not merely in the states that filed suit. The

federal government argued “that the nationwide

scope of the injunction is an abuse of discretion 2nd

request[ed] that it be confined to Texas or the plain-

tiff states.” Jd. at 187. But the Fifth Circuit rejected

the government’s argument. “Congress has instruct-

ed that the immigration laws of the United States

should be enforced vigorously and uniformly,” the

Fifth Circuit pointed out, “and the Supreme Court

has described immigration policy as a comprehensive

and unified system.” Id. at 187-88 (footnotes and in-

ternal quotation marks omitted). The Fifth Circuit

concluded: “Partial implementation of DAPA would

detract from the integrated scheme of regulation

13

created by Congress, and there is a substantial like-

lihood that a geographically-limited injunction would

be ineffective because DAPA beneficiaries would be

free to move among states.” Jd. at 188 (footnotes,

brackets, and internal quotation marks omitted).

The Fifth Circuit held: “It is not beyond the power of

a court, in appropriate circumstances, to issue a na-

tionwide injunction.” Id. See also Meyer v. Brown &

Root Constr. Co., 661 F.2d 369, 374 (5th Cir. 1981)

(“Injunctive relief which benefits non-parties may

sometimes be proper even where the suit is not

brought as a Rule 23 class action.”).

A good indication of the novelty of the govern-

ment’s current argument can be found in the fact

that in Texas v. United States, the government did

not even argue that district courts lack the authority

to issue injunctions that benefit non-parties. In the

Fifth Circuit, the government merely argued that

such an injunction was unwarranted on the facts of

the case. In this Court, the government did not chal-

lenge the scope of the injunction at all.

The Sixth Circuit has also approved of injunctions

that benefit non-parties as well as the plaintiff. In

Washington v. Reno, 35 F.3d 1093, 1103 (6th Cir.

1994), the government challenged as overly broad an

injunction barring the use of certain funds for prison

expenditures throughout the federal prison system.

When the injunction was granted, the plaintiffs were

not a nationwide class, but were individual inmates

incarcerated in a single prison. Jd. The Sixth Circuit

nevertheless held that “it cannot be successfully ar-

gued that a nationwide injunction was improper.” /d.

The court explained: “Because relief for the named

plaintiffs in the case would also necessarily extend to

14

all federal inmates, the district court did not err in

granting wide-ranging injunctive relief prior to certi-

fying a nationwide class of plaintiffs.” Jd. at 1104.

The Seventh Circuit likewise affirmed an injunc-

tion benefitting non-parties, in a suit filed by three

individual residents of Milwaukee. Decker ov.

O'Donnell, 661 F.2d 598, 604 (7th Cir. 1981). The

Seventh Circuit rejected the government's conten-

tion that “the district court erred in entering a na-

tionwide injunction,” on the ground that the plain-

tiffs challenged “the facial constitutionality of the

statute,” not merely the statute’s constitutionality as

applied to them. /d. at 618. See also Sprogis v. Unit-

ed Air Lines, Inc., 444 F.2d 1194, 1202 (7th Cir.

1971) (“affirming the district court’s power to consid-

er extending [injunctive] relief beyond the named

plaintiff’).

The Ninth Circuit has also approved of injunc-

tions that benefit non-parties in appropriate cases.

In Earth Island Inst. v. Ruthenbeck, 490 F. 3d 687,

699 (9th Cir. 2007), affd in part, rev'd in part on oth-

er grounds, 555 U.S. 488 (2009), the Ninth Circuit

affirmed a district court order prohibiting the Forest

Service from enforcing regulations the court found

contrary to statute. The Ninth Circuit rejected the

Forest Service’s contention that the injunction

should be limited to the Eastern District of Califor-

nia, where the suit was filed. Jd. In Bresgal v. Brock,

843 F.2d 1163, 1169-71 (9th Cir. 1988), the Ninth

Circuit affirmed an injunction barring the Depart-

ment of Labor from enforcing a certain statute

against forestry workers. The Labor Department ar-

gued that “the injunction can cover only the named

plaintiffs,” id. at 1169, but the court disagreed. The

15

court held: “There is no general requirement that an

injunction affect only the parties in the suit.” Jd.

The Tenth Circuit itself enjoined the Federal Re-

serve Board from enforcing a regulation that exceed-

ed its statutory authority, in a case that came to the

court directly from the Board. Dimension Fin. Corp.

v. Bd. of Governors of the Fed. Reserve Sys., 744 F.2d

1402 (10th Cir. 1984), affd, 474 U.S. 361 (1986). The

Tenth Circuit did not limit the injunction to the

plaintiffs. Rather, the court simply “set aside” the

offending regulation, and ordered the Board not to

“attempt to enforce or implement” it against anyone.

Id. at 1411.

Finally, the D.C. Circuit has also rejected the gov-

ernment’s challenge to “the district court’s issuance

of a nationwide injunction.” National Mining Ass'n v.

U.S. Army Corps of Eng’rs., 145 F.3d 1399, 1408

(D.C. Cir. 1998). Observing that “the district courts

enjoy broad discretion in awarding injunctive relief,”

id., the D.C. Circuit held that “when a reviewing

court determines that agency regulations are unlaw-

ful, the ordinary result is that the rules are vacat-

ed—not that their application to the individual peti-

tioners is proscribed.” /d. at 1409 (citation, brackets,

and internal quotation marks omitted).

Eight of the circuits have thus considered whether

district courts have the authority to issue injunctions

that benefit non-parties as well as the plaintiffs, and

every single one has held that they do. No circuit has

agreed with the government's argument that injunc-

tions may only benefit the plaintiffs.

16

E. Neither constitutional nor equitable

principles require the benefit of injunc-

tions to be confined to plaintiffs.

The government suggests (U.S. Br. 72-73) that

principles of standing and principles of equity pro-

hibit district courts from enjoining the government's

conduct with respect to anyone other than the plain-

tiff. The government errs in both respects.

1. A plaintiff obviously must have standing to ob-

tain relief. Town of Chester v. Laroe Estates, Inc.,

137 S. Ct. 1645, 1650 (2017). And remedies should of

course be tailored “to the inadequacy that produced

the injury in fact that the plaintiff has established.”

Lewis v. Casey, 518 U.S. 343, 357 (1996). But when

both of these requirements are satisfied, there is no

constitutional impediment to an injunction from

which non-parties may also benefit.

In a school desegregation case, for example, the

plaintiffs are often individual schoolchildren who de-

sire to attend integrated schools. They have stand-

ing, because they are injured by the existing system

of segregation. An injunction ordering the schools to

integrate would be appropriately tailored to redress

this injury. Such an injunction would also provide

the identical benefit to thousands of other school-

children who are not plaintiffs. They too would now

be able to attend integrated schools. The law of

standing does not require a court to exclude these

other schoolchildren from receiving the benefit of the

injunction.

Likewise, suppose the President were to issue an

executive order purporting to bar left-handed people

from voting. A left-handed citizen would clearly have

17

standing to challenge the executive order. An injunc-

tion setting aside the executive order would be ap-

propriately tailored to redress the injury. Such an

injunction would also provide the identical benefit to

millions of left-handed citizens who are not plain-

tiffs. There is nothing in the law of standing that

makes this result unconstitutional.

2. The government is equally mistaken in assert-

ing (U.S. Br. 72-73) that equitable principles limit

the benefits of injunctive relief to the plaintiff. This

assertion rests entirely on the historical claim that

in 18th-century England, an injunction could not

provide benefits to non-parties. There is good reason

to doubt the accuracy of this claim. Blackstone ob-

served that in nuisance cases, a prevailing individu-

al plaintiff was entitled “|tjo have the nulijsance

abated,” 3 William Blackstone, Commentaries on the

Laws of England 221 (1768), in several factual set-

tings where the plaintiff was clearly not the only

person who would benefit, such as where a ditch has

been “dug across a public way,” id. at 220, or where a

person “exercises any offensive trade” too close to an

inhabited area, id. at 217. The government cites no

evidence that in such cases equity required exclud-

ing non-parties from the benefits of an injunction—

for instance, by allowing only the plaintiff to cross

the ditch, or by enjoining only the noxious odors that

reached the plaintiff.

In any event, the question in this case—whether a

court may prohibit the government from exceeding

its authority by issuing an injunction that benefits

non-parties—could not have arisen in 18th-century

England, for two reasons. First, England did not

have our concept of judicial review. Courts had no

power to invalidate an Act of Parliament on the

ground that Parliament had exceeded its authority.

Philip Hamburger, Law and Judicial Duty 237

(2008). Second, because Chancery was understood as

an emanation of the Crown, there could be no injunc-

tions against the Crown or its servants. Bernard

Schwartz, Forms of Review Action in English Admin-

istrative Law, 56 Colum. L. Rev. 203, 214 (1956).

English courts lacked the power to enjoin the other

two branches of government from acting unlawfully.

Thus even if 250-year-old English practice is a re-

liable guide to the equitable remedies modern liti-

gants may obtain against private parties, see Grupo

Mexicano de Desarrollo, S.A. v. Alliance Bond Fund,

Inc., 527 U.S. 308, 318-19 (1999), English practice

offers scant guidance when it comes to enjoining the

government. When English monarchs exceeded their

constitutional authority, they could be constrained

only by military force, not by the courts. See Steve

Pincus, 1688: The First Modern Revolution (2011).

By contrast, much of our system of government was

framed as an antidote to the English experience of

the previous century. American courts can enjoin the

government in ways that their English predecessors

could not.

F. The APA presumes that courts may issue

injunctions that benefit non-parties.

In the Administrative Procedure Act, Congress

required the courts to “hold unlawful and set aside

agency action” under various conditions. 5 U.S.C.

§ 706(2) (emphasis added). Where a court finds that

an agency has exceeded its authority, the court must

19

“set aside” the agency action. Not “set aside only

with respect to the plaintiff.” Just “set aside.”

When a court sets aside an unlawful regulation,

the plaintiff is often not the only beneficiary. The

court orders the agency not to enforce the regulation,

and everyone who would otherwise be subject to the

regulation receives the same benefit. For instance, in

Lujan v. Nat'l Wildlife Fed’n, 497 U.S. 871 (1990),

the Court observed that if the Bureau of Land Man-

agement program at issue had been an “agency ac-

tion,” it could have been “challenged under the APA

by a person adversely affected—and the entire ‘land

withdrawal review program,’ insofar as the content

of that particular action is concerned, would thereby

be affected.” Id. at 890 n.2.

Justice Blackmun discussed this point further in

his dissenting opinion, in a passage with which the

Court’s majority did not disagree.

In some cases the “agency action” will consist of

a rule of broad applicability; and if the plaintiff

prevails, the result is that the rule is invalidat-

ed, not simply that the court forbids its applica-

tion to a particular individual. Under these cir-

cumstances a single plaintiff, so long as he is in-

jured by the rule, may obtain “programmatic”

relief that affects the rights of parties not before

the court.

Id. at 913 (Blackmun, J., dissenting).

Congress thus presumed in the APA that courts

could grant injunctive relief that conferred benefits

on non-parties as well as on the plaintiffs. Under

“(t}raditional administrative law principles,” when

courts set aside unlawful agency actions in suits

20

brought under the APA, “the ordinary result is that

the rules are vacated—not that their application to

the individual petitioners is proscribed.” Harmon v.

Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989).

See also Earth Island Inst., 490 F.3d at 699 (noting

that where a court sets aside an unlawful regulation,

a “nationwide injunction” is “compelled by the text of

the Administrative Procedure Act”).

G. Some of the government’s arguments

against these injunctions bear on their

appropriateness in any particular case,

not on the court’s authority to issue

them.

A district court has the authority to grant an in-

junction that benefits non-parties as well as the

plaintiff, but that does not mean such an injunction

is always appropriate. In any particular case there

may be good arguments for granting an injunction

that only benefits the plaintiff. The government lists

(U.S. Br. 75-76) some of them in its brief. Contrary

to the government’s view, however, these arguments

bear only on the appropriate scope of an injunction

in any particular case, not on the court’s authority to

issue an injunction that benefits non-parties.

The district court has broad discretion in fashion-

ing injunctive relief. United States v. Oakland Can-

nabis Buyers’ Coop., 532 U.S. 483, 496 (2001). In ex-

ercising this discretion, the court may find good rea-

sons for limiting the benefit of the injunction to the

plaintiff. For instance, if there are similar suits filed

by other plaintiffs against the same defendant in

other districts, the court might find it prudent to re-

frain from enjoining the defendant with respect to

2!

those other plaintiffs. See Califano v. Yamasaki, 442

U.S. 682, 702 (1979) (“It often will be preferable to ...

gain the benefit of adjudication by different courts.”).

In any given case, there may well be considerations

counseling in favor of a limited injunction that al-

lows the defendant to continue its unlawful conduct

with respect to people other than the plaintiff.

On the other hand, in any given case there may

also be sound prudential reasons for enjoining the

defendant from acting unlawfully, full stop. The

scope of an appropriate remedy depends on the scope

of the defendant’s violation. Missouri v. Jenkins, 515

U.S. 70, 88-89 (1995). Where the defendant’s viola-

tion harms a great number of people in addition to

the plaintiff, there will be cases in which the most

sensible way to secure relief for the plaintiff will be

an injunction targeted broadly at the scope of the de-

fendant’s violation rather than narrowly at the scope

of the plaintiffs own personal harm. For example, in

Texas v. United States, the Fifth Circuit affirmed a

nationwide injunction barring the government from

enforcing the DAPA immigration program, even in

states that were not plaintiffs. The Fifth Circuit

found that “a geographically-limited injunction

would be ineffective because DAPA beneficiaries

would be free to move among states.” 809 F.3d at

188.

Likewise, in any given case, a court may find it

prudent to avoid granting an injunction that allows

the defendant to act unlawfully with respect to some

people but not others. Immigration—for which the

Constitution requires a “uniform Rule,” U.S. Const.

art. I, § 8, cl. 4—is a field in which uniformity may

22

be particularly desirable, because non-citizens can

choose where to reside.

Moreover, in considering the proper scope of an in-

junction the court might take into account the waste-

fulness of requiring every person affected to file his

or her own separate suit. For example, if the Presi-

dent were to take a patently unconstitutional action,

one that no reasonable jurist could find lawful, a

court might find that there is an interest in avoiding

enormous amounts of duplicative and pointless liti-

gation.

Such considerations, on both sides, should inform

the court’s discretion to choose the appropriate scope

of an injunction in any particular case. But the key

point is that these considerations have no bearing on

the court’s authority to grant an injunction that ben-

efits non-parties in addition to the plaintiff. Rather,

they are matters the court should consider in exer-

cising that authority.

H. These injunctions are especially im-

portant where federalism is at stake.

When the federal government oversteps its consti-

tutional bounds, it is often at the expense of local

governments. But most local governments are very

small. They lack the budgets and the legal staffs to

litigate against the United States. In principle, we

have a federalist system that protects local govern-

ments against encroachment, but federalism does

not enforce itself. In practice, when federalism is at

stake, there are often no private parties with stand-

ing to challenge the federal government, and there

are only a handful of big cities that have the re-

sources to file suit. When the federal government un-

23

lawfully harms local governments, therefore, most

local governments have to rely on one of the big cit-

ies to get the injunction that forces the federal gov-

ernment to stop.

There are more than 90,000 local governments in

the United States. U.S. Census Bureau, Government

Organization Summary Report: 2012 at 1.* Most are

tiny. Eighty-five percent of municipalities have fewer

than 10,000 residents. U.S. Census Bureau, 20/2

Census of Governments table 7.°

When the federal government unlawfully invades

the province of local government, most of these local

governments are powerless to resist. They need the

big cities to shoulder the burden of litigation.

A good example took place very recently. Five

days after his inauguration, President Trump issued

an executive order purporting to condition local gov-

ernments’ receipt of already-appropriated federal

funds on local governments’ enforcement of federal

immigration law. This executive order threatened to

blow an enormous hole in the budgets of many local

governments. The executive order was clearly un-

lawful: It attached conditions to federal spending

that Congress had not authorized, and it comman-

deered local officials to carry out federal immigration

policies. Two large local governments—San Francis-

co and Santa Clara County—promptly sought an in-

junction barring the federal government from enforc-

ing the executive order. The district court granted an

injunction that prohibited the federal government

* https://www2.census.gov/gove/cog/g12_org. pdf.

* https://www.census.gov/data/tables/201 2/econ/gus/201 2-

governments. html, table 7.

24

from enforcing the executive order, not just against

the plaintiffs but against all local governments.

County of Santa Clara v. Trump, 250 F. Supp. 3d

497, 540 (N.D. Cal. 2017).

If an injunction could benefit no one but the plain-

tiff, each local government affected by the executive

order would have had to file its own suit and obtain

its own separate injunction. Most of them could not

have afforded to do so. Most local governments

would have had only two choices: lose their federal

funding or obey an unlawful executive order

This example happens to involve the current ad-

ministration, but our experience has been that prior

administrations were just as likely to transgress the

bounds of federalism. Local governments also

brought federalism-based suits against the federal

government under President Obama. See, e.g., Mont-

gomery Cty. v. FCC, 811 F.3d 121 (4th Cir. 2015);

City of Oakland v. Lynch, 798 F.3d 1159 (9th Cir.

2015); City of Berkeley v. U.S. Postal Serv., 2015 WL

1737523 (N.D. Cal. 2015); City of Spokane v. Federal

Nat'l Mortgage Ass'n, 775 F.3d 1113 (9th Cir. 2014);

City of Arlington v. FCC, 668 F.3d 229 (5th Cir.

2012). Not coincidentally, these suits were all filed

by medium-to-large local governments.

This issue transcends politics. Federalism would

be substantially under-enforced if the many thou-

sands of small towns could not enjoy the benefits of

injunctions obtained in suits filed by the handful of

big cities with the resources to do so.

25

CONCLUSION

The judgment of the U.S. Court of Appeals for the

Ninth Circuit should be affirmed.

Respectfully submitted,

LISA E. SORONEN STUART BANNER

State and Local Legal Counsel of Record

Center UCLA School of Law

444 N. Capitol St. NW Supreme Court Clinic

Suite 515 405 Hilgard Ave.

Washington, DC 20001 Los Angeles, CA 90095

(202) 434-4845 (310) 206-8506

lsoronen@sso.org banner@law.ucla.edu