Plaintiff-Oriented Injunctions in Equal Protection Cases: Wynn v. Vilsack and the American Rescue Plan Act of 2021
I am delighted to have the privilege of joining the JREG Notice & Comment Blog as a contributor. I’ve learned a lot from reading the blog over the years, and am excited to be able to contribute to these fascinating discussions. For my inaugural post, I will critique an injunction that a federal district court recently entered in an Administrative Procedures Act case blocking enforcement of one of the Biden Administration’s signature, albeit controversial, policy achievements.
Last week, in Wynn v. Vilsack, the U.S. District Court for the Middle District of Florida entered a preliminary injunction prohibiting the Secretary of Agriculture and Administrator of the Farm Services Agency (“FSA”) from making any payments under the farm debt repayment program established by § 1005(a)(2) of the American Rescue Plan Act (“ARPA”) of 2021.
The program allows the Secretary to pay up to 120% of the indebtedness of farmers or ranchers who belong to “socially disadvantaged groups” and have a federal or federally guaranteed farm loan. A socially disadvantaged group is one “whose members have been subjected to racial or ethnic prejudice because of their identity as members of a group without regard to their individual qualities.” The USDA has recognized Black, American Indian, Alaskan Native, Hispanic, Asian, and Pacific Islander farmers and ranchers as members of socially disadvantaged groups.
The plaintiff, a white farmer, challenged the program under the Equal Protection Clause and Administrative Procedures Act, alleging that it authorizes unconstitutional de jure racial discrimination. The district court concluded that the plaintiff was likely to succeed on the merits and otherwise entitled to an injunction. This post does not address the district court’s analysis concerning the merits or its substantive rulings concerning the validity of the USDA’s program under the Equal Protection Clause. Rather, it focuses on the important remedial and equitable issues this case raises.
The court’s preliminary injunction bars the Secretary from “issuing any payments, loan assistance, or debt relief” pursuant to § 1005(a)(2) of the ARPA, effectively suspending the entire debt repayment program. Some critics labeled this order a “nationwide” or “universal” injunction because it prohibits the Secretary from providing debt relief payments through the program to any farmers or ranchers, anywhere in the nation. As usual, I find such terminology unhelpful because it obfuscates the real issue when it comes to crafting equitable relief. The question is not where, geographically, the injunction should apply, but rather whose rights should be enforced.
I’ve urged courts to distinguish between plaintiff-oriented injunctions and defendant-oriented injunctions. A plaintiff-oriented injunction is tailored to enforcing the rights of the plaintiff or plaintiffs before the court. The scope of such an injunction will depend on the identity of the plaintiff and the type of rights it seeks to enforce. Plaintiff-oriented injunctions are consistent with Article III, traditional equitable principles, and prudential considerations. When federal courts issue such orders, they are usually not geographically limited. Rather, plaintiff-oriented injunctions typically prohibit a defendant from violating the plaintiff’s rights anywhere in the nation. And in class-action suits, members of the plaintiff class may be scattered throughout the nation or even world. Thus, focusing on geography in this context can be misleading.
A defendant-oriented injunction, in contrast, bars the governmental defendant from enforcing a challenged legal provision against anyone, anywhere in the nation, including third-party non-litigants who aren’t before the court, and who may even be outside its jurisdiction. I’ve argued that such injunctions raise a wide range of serious concerns. Many orders that are called “nationwide” or “universal” injunctions should instead be labeled “defendant-oriented injunctions” to minimize confusion and shift focus to the proper issue.
Most of the time, it’s fairly easy to distinguish between plaintiff-oriented injunctions and defendant-oriented injunctions. For example, imagine a federal law prohibiting political conversations in national parks. A plaintiff-oriented injunction would bar the government from enforcing that prohibition only against the particular plaintiff or plaintiffs in the case before the court, but those parties would be protected in any national park they visited. A defendant-oriented injunction, in contrast, would prohibit the government from enforcing that provision against anyone, anywhere. Such plaintiff-oriented and defendant-oriented injunctions look very different from each other because this example involves a divisible right: it is possible to enforce the rights of particular plaintiffs without simultaneously enforcing the rights of all other non-litigant rightholders. (Of course, it might be difficult, unfair, or impracticable for the government to selectively enforce certain legal provisions only against particular people. But that generally is a policy consideration for the government to take into account in deciding whether to continue enforcing the challenged provision against third parties.)
Some cases, however, involve indivisible rights, where it is impossible to enforce only the rights of a particular plaintiff without also thereby enforcing the rights of all other third-party rightholders. For example, if a plaintiff successfully challenges her congressional district as malapportioned, the proper relief—redrawn districts—will necessarily benefit people other than just the plaintiff herself. The court cannot draw one set of districts just for the plaintiff, and a completely different set of districts for everyone else. In cases involving indivisible rights, even if a court appropriately issues a plaintiff-oriented injunction, the order will typically look indistinguishable from a defendant-oriented injunction.
With this background in mind, we can consider the Wynn injunction. The court started out on the right track by attempting to craft a plaintiff-oriented injunction. It sought to prove relief only to the plaintiff, Wynn, rather than all similarly situated claimants throughout the nation (i.e., other white farmers and ranchers with federal or federally-backed loans). So the question became: what relief was necessary to protect Wynn’s rights?
The court explained that § 1005’s use of racial classifications harmed Wynn in two ways. According to the court, Wynn suffered financial harm by being excluded from the loan forgiveness program. It added that Wynn also suffered constitutionally cognizable “intangible” harm by being treated differently solely on account of race.
The crux of an equal protection case such as this is unequal treatment: the plaintiff claims that it is being treated impermissibly worse than some other, legally favored entity or group. There are two ways to remedy such harm: leveling up or leveling down. On the one hand, the government could level up by granting the benefit at issue to the plaintiff, ending the unconstitutional disparity against him. If a court orders the government to level up, a properly tailored plaintiff-oriented injunction generally would grant relief only to the plaintiff in the case, rather than all similarly situated rightholders throughout the nation. (I use the qualifier “generally” because plaintiff-oriented injunctions in desegregation cases necessarily must sweep more broadly to fully enforce a plaintiff’s rights. The plaintiff in such cases is not only claiming the right to attend a particular school or use a particular facility, but to do so on a desegregated basis.) Leveling up treats the underlying Equal Protection right as divisible, because it is possible to enforce the plaintiff’s claimed right to be free of discrimination and participate in a government program without simultaneously enforcing other people’s rights, as well.
On the other hand, the government could level down, eliminating the underlying benefit for everyone. If a court orders the government to level down, a properly tailored plaintiff-oriented injunction would generally require the government to terminate the challenged program. Such an order would deprive all of the program’s beneficiaries of the benefit at issue. And it would also incidentally enforce the equal protection rights of other third-party non-litigants throughout the nation who, under the court’s reasoning, had been unconstitutionally excluded from the program. But all of those consequences would be the result of the court’s attempt to enforce the Equal Protection rights of the plaintiff before the court. Such an order is not a defendant-oriented injunction, because the court is not going further than necessary to enforce the plaintiff’s rights, in order to enforce the rights of third-party non-litigants.
Thus, a court may generally eliminate an unconstitutional disparity either by leveling up or leveling down. The question then becomes how a court should choose between these remedial approaches. Broadly speaking, two options exist. First, the court could treat the choice as a policy issue left to the government itself. In that case, the court would order the government to do something to modify its conduct, but it would be up to the government itself to decide whether to level up or level down.
Second, the court instead could treat the issue as a question of severability, which is primarily a question of legislative intent. Most laws, regulations, or other policies that violate the Equal Protection Clause contains two material provisions: (i) a provision creating the benefit at issue, and (ii) a provision limiting that benefit to particular groups. If a court concluded that those provisions are inseverable, then the proper response would be enjoining the entire statute, effectively leveling down. If the court instead concluded that the provisions are severable, then the proper response would be enjoining the government from applying the second provision to the plaintiff, thereby suspending the ostensibly invalid limitation as to that plaintiff. This approach is leveling up, extending the benefit at issue to both the plaintiff and the statutorily favored group. When treating the choice between leveling down and leveling up as a severability problem, the court must decide a counterfactual: would the government entity that adopted the challenged program have preferred to open it up to members of both the included and excluded groups, or instead eliminate the program altogether?
In this case, the district court concluded that leveling up was not an available alternative; consequently, it completely enjoined the USDA from continuing its loan repayment program while the underlying lawsuit remains pending. The court reasoned that it could not compel the government to provide benefits to the plaintiff, because “[t]he statute as written by Congress unambiguously authorizes the expenditure of funds for loan assistance only to SDFR [socially disadvantaged farmers and ranchers] or other qualifying socially disadvantaged groups.” The court added, “There is no way to construe the law to provide debt relief to a White farmer. The Court has no authority to rewrite the law to extend that assistance to persons that Congress did not intend to benefit.” Granting such relief, the court further opined, would also violate the Appropriations Clause. Thus, the court concluded that the only available remedy was completely enjoining the challenged program.
I think the court erred in two material respects. First, the court failed to consider the possibility of entering a plaintiff-oriented injunction that simply prohibited the Government from implementing § 1005(a)(2) with regard to the plaintiff in a manner that, in the court’s view, violates the Equal Protection Clause. Such an order would have left the USDA, and the Government more broadly, with the choice of how to remedy the equal protection violation. The Government could have ceased the perceived violation of the plaintiff’s Equal Protection rights either by extending him benefits under the program or by discontinuing the program altogether.
Second, the court could have entered a plaintiff-oriented injunction barring the Secretary from enforcing the racial restrictions in the program’s eligibility standards against the plaintiff. A prospective order to comply with the Constitution (or to refrain from violating the Constitution) does not violate either sovereign immunity or the Appropriations Clause, even if it requires the Government to pay or spend money. The court’s insistence that it lacks the power to “rewrite” federal laws overlooks the extent of its equitable powers in constitutional cases. For example, courts often hold that a legal provision is unconstitutional as applied to certain people or under certain circumstances. They typically enter injunctions barring the provision’s enforcement to such plaintiffs. One might say that the court is “rewriting” the law by creating such exceptions. As Henry Monaghan, Michael Dorf, Richard Fallon, and others have argued, such cases involve a similar implicit severability analysis; the court is considering whether a provision’s unconstitutional applications can be severed while allowing the “remainder” of that provision to remain in effect. Such an approach is often more deferential to Congress than wholesale invalidation of an entire statute. It is also consistent with the traditional equitable principle that the scope of a remedy should be tailored to the extent of a violation.
The district court’s reasoning is somewhat reminiscent of Marbury v. Madison; in the guise of emphasizing the limits of its power, the court asserted even greater authority. Here, the court claimed that it could not enter a narrow order barring the government from applying the allegedly discriminatory standards to the plaintiff, or directing the government to allow the plaintiff to participate in the program. Based on this inaccurately parsimonious view of its equitable remedial powers, the court suspended the entire program altogether.
The court actually had authority to enter a narrower plaintiff-oriented injunction by either: (i) directing the government to stop implementing § 1005(a) in a manner that violated the plaintiff’s Equal Protection rights (thereby leaving it to the Government to decide whether to do so by leveling up or leveling down), or (ii) enjoining the government from enforcing § 1005(a)’s racial restrictions against the plaintiff (thereby treating the issue as a question of severability and concluding that Congress’ likely preference would have been to level up). Such a more modest ruling would have better fit with the proper role of a single district judge within the decentralized, hierarchical structure of the federal judicial system. Of course, as higher courts consider the issue, their rulings will impact progressively greater numbers of third-party non-litigants, but they will do so through the force of stare decisis, rather than overbroad injunctions.