Notice & Comment

Ninth Circuit Review—Reviewed: Nationwide Preliminary Injunctions before CA9, by William Yeatman

Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” This month, we’re going to take a deep dive into a hot-button issue: nationwide preliminary injunctions. Let’s get straight to business.

Surveying the Schizophrenic Law of the Circuit on Universal PIs  

Prior to the Trump-era, august principles of equity guided the Ninth’s analysis into the proper scope of provisional relief. Under the pre-Trump status quo, CA9 panels focused on “the relief to which [the plaintiffs] are entitled.” That is, a preliminary injunction’s appropriate scope entailed whatever was necessary to provide “complete relief” to the plaintiff. 

Since Trump took office, there’s been a sharp uptick in government applications for emergency stays of nationwide PIs—especially in the realm of immigration law. According to Judge Milan Smith, “the phenomenon has . . .  increased by an order of magnitude.”  As the court waded through these controversies, panels have added to the court’s analytical framework in ways that broaden access to nationwide PIs. Three such doctrinal advances are discussed below. 

1. Justifying Universal PIs on APA § 706 

In a prior post, Prof. John Harrison discussed a 2019 case in which the Third Circuit justified a nationwide injunction on the basis of APA § 706’s call for courts to “set aside” unlawful agency action. Specifically, the court reasoned that a universal PI corresponds to “complete relief” for plaintiffs seeking to “set aside” and thereby nullify an agency action. 

In two cases last February—in Innovation Law Lab v. Wolf and East Bay Sanctuary Covenant v. Trump— Ninth Circuit panels adopted CA3’s reasoning on APA § 706. Last month, in East Bay Sanctuary Covenant v. Barr, the court again employed relied on APA § 706 to uphold nationwide provisional relief. 

2. Universal PIs Based on Preference Uniform Immigration Law 

Since at least early 2017 (in Washington v. Trump), Ninth Circuit panels have routinely justified nationwide PIs based on a supposed “special” need for uniformity in immigration cases. Most recently, the court endorsed this approach last month in East Bay Sanctuary Covenant v. Barr.

Interestingly, this doctrinal factor developed outside CA9, in the the DAPA controversy before the Fifth Circuit. 

3. Universal PIs Calibrated to Injuries Associated with Organizational Standing

Recently, CA9 panels have condoned nationwide PIs that provide “complete relief” to plaintiffs—usually nonprofit legal groups—whose injury is based on organizational harms, such as future loss of clients or revenue due to there being fewer immigrants. 

Last month, for example, a split panel affirmed a universal PI because the challenged rule “interfere[d] with plaintiffs’ organizational missions” on a nationwide scope. To be clear, the plaintiffs were not themselves subject to the regulation; instead, they are organizations that provide services to potentially affected applicants.

From what I can tell, the Ninth Circuit first employed this reasoning six months ago, in East Bar Sanctuary Covenant v. Trump. In that case, the court held that the scope of provisional relief should extend to anywhere the non-profit plaintiff might suffer “one fewer asylum client.” That’s capacious! 

Countervailing Doctrinal Developments

Above, I addressed opinions and orders that facilitate nationwide injunctions. Elsewhere, however, Ninth Circuit panels have taken a jaundiced eye to “overbroad” provisional relief. In the cases discussed below, panels don’t mention uniform immigration law, nor do they reference APA § 706. Instead, these other cases stress the need to “tailor” PIs to the plaintiff’s *specific* harms. Under this alternative line of jurisprudence, nationwide PIs are viewed skeptically, because they impede the percolation of the law (i.e., circuits working through their respective legal conclusions). When CA9 panels adopt this latter posture, they tend to create doctrinal limitations on the breadth of provisional relief. 

For example, many pre-merits panels have limited the scope of universal PIs by requiring trial courts to demonstrate the need for a nationwide remedy. See, e.g.E. Bay Sanctuary Covenant v. Barr, 934 F.3d 1026 (2019); San Francisco v. Trump, 897 F. 3d 1225 (2018). (N.B. In practice, this evidentiary hurdle seems little different from so-called “scope hearings,” a procedural mechanism advanced by Prof. Amanda Frost to mitigate the ills associated with nationwide PIs.)  

In California v. Azar, the court set forth a different doctrinal limitation on the use of nationwide PIs. In that case, a motions panel advanced a rule of thumb that trial courts should shy from universal PIs that “delay trial preparation.” In so doing, the panel endorsed percolation and criticized “overbroad” PIs

Last month, in San Francisco v. Barr, a CA9 panel added another doctrinal wrinkle that militates against universal PIs. After emphasizing the need to “tailor relief” to “necessary” remedies, the San Francisco panel concluded that city and state lines “operate in a fashion that permits neat geographic boundaries.” Because the plaintiffs were local governments, the court narrowed the PI to the territorial jurisdictions of these governmental entities.

In this manner, the Ninth Circuit has developed dueling doctrines over the scope of nationwide provisional relief. One line of jurisprudence accommodates universal PIs; the other line of law serves to constrain the scope of PIs. Oddly, both doctrines are growing. 

The Debate Rages On 

Several CA9 judges have taken note of the court’s uneven approach.  

Last month, for example, Judge Eric Miller criticized the majority for having based a nationwide PI on the plaintiff’s “attenuated” organizational harm. In a concurrence to the same opinion, Judge Richard Clifton also signaled his opposition to law of the circuit that allows universal PIs as a remedy for these sorts of indirect injuries. 

Earlier this year, in Doe #1 v. Trump, Judge Daniel Bress complained about the court’s “recent” turn to uniform immigration law as a justification for nationwide injunctions. According to Bress, uniformity is well and good, but that “does not mean it is the courts that can set those uniform policies.” 

In a recent law review article, Judge Milan Smith echoed his colleagues’ criticisms, and he further took aim at the belief that APA § 706 compels nationwide PIs. Smith argued that “the discretion of courts sitting in equity should not be presumed to be restricted unless Congress has spoken clearly,” and the APA does not speak in such terms. 

That makes at least four judges (three active) that have gone on the record to dispute trends on the court regarding nationwide PIs. 

A Final Thought on Uneven Law of the Circuit (especially circuit law governing motions panels) 

Setting aside the brouhaha over PIs, something is seriously wrong with the Ninth Circuit’s motions panel jurisprudence. In prior posts, I’ve bemoaned the court’s “woefully” inconsistent framework for reviewing applications for an emergency stay. In this post, I discussed the existence of two opposite—and growing!—doctrines to govern the appropriate scope of preliminary injunctions. 

Obviously, stays and injunctions are fundamental to provisional relief. And yet, in this important area of law, the Ninth Circuit is all over the place. It’s unacceptably haphazard, and the court needs to straighten out this mess.  

To my eyes, the obvious culprit is the court’s size. It’s so big, and deals with so many cases, that panels can simply talk past one another. As a result, weird things happen—like the contemporaneous growth of dueling doctrines. 

William Yeatman is a research fellow at the Cato Institute

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