Elias Neibart (Harvard Law School) has posted The Rise of the All-Writs-Act-Putative-Class-Injunction? (24 pages) on SSRN. Here is the abstract:
In Trump v. CASA, Inc., the Supreme Court killed off the universal injunction. In a standard universal-injunction case, a single plaintiff could sue the government for injunctive relief. If they won, the government couldn't enforce the law against anyone. If that plaintiff lost, another plaintiff-who wasn't a party to the first case-could just sue the government again over the same conduct. Such injunctions, then, gave relief to non-parties. To the Court, that offended traditional equitable practice.
The Court emphasized, however, that Rule 23 injunctions were available to give relief to large groups of plaintiffs. These injunctions are kosher because class certification ostensibly brings the entire class before the court-even if they aren't really there. This makes all class members parties to the case who are bound by the court's judgments-win or lose. If the class wins, all members get relief. If they lose, all class members are precluded from bringing another case.
Recently, however, district courts are relying on the All Writs Act to issue preliminary injunctive relief to putative classes of plaintiffs. These classes remain "putative" because they have not yet been formally certified under Rule 23.
That’s a problem. Members of an uncertified putative class are not proper parties before a court and are thus not bound by its judgments. Thus, when a court gives preliminary relief to a putative class under the All Writs Act, it’s giving relief to non-parties. These non-parties receive the benefit of judgments in favor of the putative class but are not bound by adverse judgments. Under CASA, then, these injunctions are unlawful. What I call the All-Writs-Act-putative-class-injunction suffers from the same legal issues that doomed the universal injunction.
To be sure, there’s a solution: District courts can formally certify these classes under Rule 23, and, then—and only then—issue preliminary relief. But if district courts take that route, they’ll have to ensure they are adhering to the demanding requirements of Rule 23. Those strictures ensure that courts are giving relief to the proper parties. It’s understandable that, in a preliminary posture, district courts might move quickly through the Rule 23 certification analysis. They’ll also likely have to proceed with little briefing from the parties. But, even so, it’s incumbent on reviewing courts to ensure that the requirements of Rule 23 are not diluted. If the courts allow Rule 23 to get watered down, they risk giving relief to those who are not entitled to it. It was that problem that made universal injunctions unlawful. Courts would be well advised not to repeat that mistake.
Posted at 6:07 AM