The perils of using class actions as a replacement for universal injunctions

AV Ristorante is a recurring series by Brian Fitzpatrick.

Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.

In Trump v. CASA, the birthright citizenship case, the Supreme Court held that so-called “nationwide” or “universal” injunctions are usually unlawful because they exceed the powers granted to courts by Congress. Universal injunctions are court orders that tell defendants they can’t do something – both to the plaintiffs and anyone else. For example, in the birthright citizenship litigation, courts had barred the Trump administration from applying its executive order against both the plaintiffs who brought the cases and anyone else born in the United States. The controversial part is the last part: including nonparties in the relief. And the controversy is bipartisan: Although federal district courts have entered more universal injunctions against the Trump administration than all other presidents in the history of the United States combined, they entered plenty against former Presidents Joe Biden and Barack Obama, as well.

At the same time the court held universal injunctions unlawful in CASA, it noted that there is a lawful mechanism for granting relief to nonparties: a class action seeking injunctive relief. A class action is a lawsuit in which plaintiffs seek to represent themselves and everyone else in a similar position. Plaintiffs state in their complaint that they seek to represent a class, but the case does not actually become a class action unless a judge “certifies” it as one. The Federal Rules of Civil Procedure list the criteria that courts must follow, including that the prospective class must be a certain size, that its members must have “questions of law or fact” in common, and that the plaintiffs must be “typical” and “adequate representatives” of the rest of the class.

Thus, in the weeks since the CASA decision was released, litigation against the Trump administration has largely taken the form of class actions. And there are reasons to think the court was right to think class actions will be a good substitute for universal injunctions. For example, there is no reason why class actions cannot include class members all across the nation, especially when the lawsuit is based on federal law as opposed to the laws of many different states. Although some commentators have worried that it will be too difficult to certify class actions, the truth is that it is relatively easy to certify class actions that seek injunctive relief: the certification criteria are less numerous and less demanding than for class actions seeking money damages.

The downside to using class actions is that the certification process can take time. If the defendant contests it, class certification can usually happen only after the parties have taken discovery into the criteria – that is, they have produced information concerning whether they qualify as a class or not. For example, the most contentious certification criterion for injunctive classes is usually whether the plaintiffs are “adequate representatives.” The defendant will usually want to probe the plaintiffs’ honesty, their relationship with the lawyers representing them, and whether there might be any conflicts of interest between the plaintiffs and other class members. For this reason, it is not uncommon for class certification to take months or even years. Some have worried that this delay will undermine the ability of class actions to serve as a substitute for universal injunctions. The Trump administration can accomplish a lot in just a few months.

But it turns out that class certification has not slowed district courts down at all. Rather, they have turned to something called “provisional” class certification. What’s that? There is no known definition, but it appears to be when a court skips discovery and does a quick-and-dirty assessment of whether it thinks the class certification criteria are met so that it can enter a preliminary injunction on behalf of the class. Presumably, at some point later on in the litigation, the defendant will be given discovery and a chance to urge the court to decertify the class. But, until then, everyone in the class gets injunctive relief.

This is what a district court judge in New Hampshire did following CASA. The day after the court’s decision, the ACLU filed a complaint challenging the same birthright citizenship order, this time on behalf of a nationwide class. Less than two weeks later, the district court provisionally certified the class and entered a preliminary injunction on its behalf.

Is this lawful? As I told the New York Times, I have “grave misgivings” about it. There is nothing in the Federal Rules of Civil Procedure that says courts can do this. But there is also nothing that says they can’t. And, according to Harvard professor Bill Rubenstein, courts had been granting provisional certifications before CASA.

Indeed, the Supreme Court itself has done something similar. In AARP v. Trump, a class action case out of Texas involving immigrants on the verge of deportation to El Salvador, the court prohibited the administration from deporting any of the potential class members in the case even though the case had not even been “provisionally” certified as a class action. At that point, the case was merely a “putative” class action – i.e., a case that the plaintiffs said in their complaint they wanted to turn into a class action one day. In fact, at the time the court granted relief to the putative class in AARP, the district court itself had said it did not think class certification would be appropriate. Yet, in evaluating the case, the court didn’t even pay lip service to the class certification criteria. If granting relief to a “putative” class – over the misgivings of the district judge, no less – is not unlawful, then it is hard to see how granting relief to a “provisionally certified” class is. 

It is tempting to conclude that the court may not have realized what it was doing in AARP. After all, the justices do not get very many class action cases and this one was rushed on the emergency docket, to boot. But much of this was pointed out by Justice Samuel Alito in his dissent, which was joined only by Justice Clarence Thomas. Moreover, AARP was released only one day after the oral argument in CASA and it was clear from their questions that the justices were thinking about the relief they were about to order in AARP.

For this reason, my misgivings about provisional certification lie less with its lawfulness and more with its consequences for judicial administration. In particular, I am concerned that provisional certification will simply recreate under a different name all the problems of universal injunctions: extreme forum shopping, rushed decisionmaking, and asymmetrical litigation stakes.

Let’s start with extreme forum shopping. You could usually seek a universal injunction against the federal government anywhere in America. As such, plaintiffs suing Trump, just like plaintiffs suing Obama and Biden, understandably gravitated toward courthouses where they were guaranteed a particular judge they liked or at least a judge of the political party opposite the president. But you can just as easily file class actions before the very same judges. Although the ACLU was not as aggressive about this as it could have been in the New Hampshire case – they drew a district court judge nominated by George W. Bush – I am sure it was no accident they filed in the only circuit where all the active circuit judges were appointed by Democratic presidents.

What about rushed decisionmaking? Obviously, going from the initial complaint to certification of a nationwide class and a class-wide injunction in less than two weeks is rushed. Moreover, I think we can all probably agree that rushing is usually not the best way to make decisions. But there is a special problem caused by rushing to shut down an entire federal program or policy: It often then forces appellate courts and even the Supreme Court to make decisions about the merits of the program or policy before the merits have been well developed. Ideally, the court does not have to rule on an issue until several courts of appeals have weighed in, something scholars call “percolation.” Universal injunctions tended to cut off percolation because the court felt compelled to take the very first case that came to it in light of the importance of deciding whether a major federal program could take effect. 

Class actions may make this problem worse rather than better. As the court in the New Hampshire case observed, there is no mechanism in the Federal Rules of Civil Procedure for class members to “opt out” of class actions seeking injunctions. Thus, once a court certifies a class – even provisionally – it shuts down the ability of members of that class to file their own lawsuit in a different circuit. Indeed, the U.S. Court of Appeals for the 9th Circuit recently rejected jurisdiction over individuals challenging the birthright citizenship order because the judge in New Hampshire had already provisionally certified a class that included them. Although the litigation continues there for state plaintiffs, what will happen in cases in which there are no state plaintiffs? I am afraid the class action answer is: no percolation.

Finally, what about asymmetrical litigation stakes? The concern here was that when plaintiffs won a case seeking a universal injunction, they won for everyone in America, but, when they lost, they lost only for themselves. The opposite was true for the government: if it lost, it lost for everyone; if it won, it would have to keep litigating against each and every other potential plaintiff. Many people thought this was simply unfair. The class action was supposed to fix this: Certified class actions – even provisionally certified ones – bind all class members, win or lose. That sounds good in theory, but I am not sure it will pan out in practice: I doubt a district court will grant provisional class certification if it is going to reject the preliminary injunction; it will only do so if it will enter the injunction. Thus, we are right back to where we were before CASA: When the government wins in the district court, it will win only against the plaintiffs; when the government loses, it will lose against everyone. The unfairness remains.

In his concurring opinion in CASA, Alito warned that the decision would be toothless if district courts could too easily replace universal injunctions with class actions. In particular, he worried about “hasty application” of the class certification criteria that treated the criteria as a “mere pleading standard” rather than the “rigorous analysis” that caselaw required. Is this already happening?