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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2018

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0806%3A63. Public record. Not legal advice.