Class Action Workaround Undermines Universal Injunction Decision

The US Supreme Court said it wanted to all but end so-called universal or nationwide injunctions last year in Trump v. CASA. These injunctions ordered defendants—usually the federal government—to refrain from doing something to the plaintiffs who brought the lawsuit, as well as to anyone else.

The justices told district courts that, if they wanted to give relief to nonparties, they should make them part of the case by certifying a class action. Since then, district courts have been confused about what they can and can’t do when plaintiffs seek broad injunctive relief against the federal government. I’d like to try to catalogue the confusion and replace it with clarity.

First, I’ve heard district court judges question how certifying a class action solves the problem of nationwide injunctions to begin with. If the class that is certified is comprised of people nationwide, then won’t any relief be a nationwide injunction?

Yes, it will, but that’s not the nationwide injunction the Supreme Court had in its crosshairs in CASA. The term “nationwide injunction” is so confusing that scholars have tried to retire it in favor of “universal injunction.”

There is nothing controversial about a district court giving plaintiffs—which may include a certified class of persons—relief throughout the entire country. It isn’t controversial for a district court to order a defendant under its jurisdiction to stop doing something to the plaintiff or plaintiff class wherever that defendant operates.

What is controversial is to order the defendant to stop doing something to the plaintiff and anyone else—that is, to order the defendant to stop doing something to someone who is not a party to the litigation. That is the injunction the court tried to end in CASA.

In other words, the problem is the inclusion of non-parties in the injunction, not the nationwide scope of the injunction. Hence, our preference for “universal” injunction.

Second, I’ve seen district court judges question whether they must certify a class action in order to grant preliminary relief to the class—or whether certification is only required for final injunctive relief.

Most of the universal injunctions that have given people heartburn over the last decade or so have been temporary restraining orders or preliminary injunctions. This includes the injunctions that were before the justices in CASA. As a result, most district courts since CASA have at least “provisionally” certified a class before granting the class preliminary relief.

I agree with Justice Samuel Alito’s concern that provisional certification isn’t rigorous enough—it’s usually not preceded by discovery into the elements of class certification—but at least these judges are thinking about what class certification requires when they provisionally certify.

However, that isn’t what US District Judge Katherine Menendez in Minnesota did recently for the injunction she entered against ICE’s tactics there. As she noted in Tincher v. Noem (although the complaint there was filed on behalf of a class), “Plaintiffs have not moved for class certification, nor has the Court granted it.”

Nevertheless, the district court decided that she could enter class-wide relief without even provisionally certifying the class. She said she “disagrees that recent Supreme Court jurisprudence foreclose that route.” In other words, the district judge thought she could comply with CASA’s so long as class allegations were merely stated in the complaint.

This view makes CASA incredibly easy to get around—just add a boilerplate paragraph seeking class-wide relief to your complaint to get the exact same injunction CASA was trying to end.

But the judge didn’t pull this idea out of nowhere. One month before CASA, the Supreme Court granted relief to an uncertified class in AARP v. Trump, a habeas case involving migrants trying to stop the Trump administration from deporting them to the infamous El Salvadorian prison.

As the district judge in Minnesota observed, it’s difficult to square AARP with CASA because AARP seems to allow plaintiffs to plead right around CASA.

AARP was decided on the Supreme Court’s fast-paced shadow docket. For this reason, I worry the court’s decision was a bit ill-considered. But the justices didn’t explicitly repudiate it in CASA, and it was clear from their questions that they were thinking about AARP during the arguments. Thus, we can’t dismiss AARP completely.

So what’s the right answer? Do district courts at least need to provisionally certify a class in order to grant preliminary relief to a class?

I think so. If district courts don’t need to do at least that, then all of the ills the Supreme Court sought to strangle in CASA—extreme forum shopping, forced Supreme Court decision-making, and asymmetric preclusion—come rushing back to life.

It is plausible to distinguish AARP as a habeas case over which the Supreme Court would lose jurisdiction without interim relief to the potential class because the potential class would be deported in the meantime. That’s exactly what the US Court of Appeals for the Eighth Circuit said when it quickly stayed the district judge in Minnesota. In short, distinguishing AARP is the best way to reconcile it with CASA.

My recommendation to district courts who want to stay out of trouble is this: Certify your class before you grant preliminary relief to the class. It’s best to do so without the provisional shortcuts that many judges have used but, at the very least, you should do that much.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

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Brian T. Fitzpatrick is a professor at Vanderbilt Law School and was a law clerk to Justice Antonin Scalia.

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