8th Circuit weighs in on the scope of injunctions

A major dissenting opinion by Judge Stras

|The Volokh Conspiracy |

The Eighth Circuit has just published its decision in Rodgers v. Bryant, a case that concerns, among other things, the scope of an injunction prohibiting the enforcement of a state law. Two plaintiffs sued to prohibit the enforcement of an Arkansas anti-loitering statute; they did not bring a class action. The district court nevertheless granted a preliminary injunction that prohibited the state from enforcing the statute against anyone, including non-parties. The Eighth Circuit affirmed the injunction 2-1, and the dissent by Judge Stras is the most detailed and learned decision yet on the history of equity and the scope of injunctions (on either side of this debate that has been running since 2016). The dissenting opinion should be required reading for anyone interested in national or universal injunctions.

I want to highlight two arguments in particular. First, Judge Stras shows that equity would give injunctions to protect parties or those represented by parties, and that the latter category of representative suits is now carried on by the class action. It is exclusively carried on by the class action, as Judge Stras demonstrates from the continuity in the equity rules and the FRCP, the text of Rule 23, and the Supreme Court's rejection of the idea that there are off-FRCP common law forms of class action (in the context of virtual representation). This analysis is on pp. 17-21, and it shows a sound grasp of equity's history and doctrine.

Second, Judge Stras has a footnote on Califano, a Supreme Court decision that has been widely cited and quoted in opinions embracing the national injunction. Judge Stras shows how little support Califano offers for an injunction that protects non-parties. This is footnote 10 on p. 24.

The responses in the opinion of the panel majority (by Judge Melloy, joined by Judge Lavenski Smith) are several. They argue that broad injunctions have been given in recent years (correct), and suggest that it would be unthinkable that the plaintiffs would need to bring a class action to get relief protecting everyone (incorrect). And they rely on Califano and Ashcroft v. ACLU. The judges in the majority do not engage with the dissent on Grupo Mexicano (though they could have argued from Justice Scalia's opinion in that case that there is some room for development and analogy in the law of equity). Both the majority and the dissent are careful to note that the policy arguments are different for national injunctions and their state counterparts (and both cite on this point the excellent work of Amanda Frost).

Whether this case will go to the Supreme Court is unclear. But it is clear that the case, and especially the dissenting opinion, will be widely read and cited.


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  1. The dissent writes: “An injunction directing the state police not to arrest them would, as far as the record shows, provide them with complete relief.”

    This kind of makes me want to see state-wide injunctions (or “universal” injunction if you’re arguing against them) eliminated. It would be interesting to get to see the implications of a legal system where some people cannot be arrested under a law while others can be arrested under the same law. Do the plaintiffs just carry around the injunction and show it to police if they are stopped, informing them that they are immune from the particluar law? Do the police maintain a database of people immune from the law so the officer on the street knows who they can and cannot arrest? Will the effects ultimately tilt in favor of those who can afford counsel to get an injunction, creating two classes of people, those wealthy enough to afford legal immunity and those unable to afford it? Are there Equal Protection issues that arise when the same law applies to one group while another group is immune from it?

    So many interesting questions and possibilities. Here’s to President Trump’s judges winning the day on this one.

    1. QBC,
      There might be a commonsense answer to your hypo. But it was my thought as well. Almost guaranteed to lead to a two-tiered system of justice, with those of us with sufficient means having an “immunity” card while the hoi polloi will not. Hopefully someone will chime in with an explanation as to why our fears can never realistically happen.

  2. “…and suggest that it would be unthinkable that the plaintiffs would need to bring a class action to get relief protecting everyone (incorrect)….”

    Sam, Can you explain why this is incorrect? Are you saying that plaintiffs would not need to bring a class action to protect a wide circle of people? Or are you saying that this is exactly what would need to happen, but that it’s not unthinkable that this will, indeed, be done? Your sentence does not make it clear (to me, anyway) which part is, in your opinion, incorrect.

  3. I have seen a number of questionable judicial actions based on the notion of “judicial economy.”

    I have a hunch that if 3,014,000 separate cases asking for an injunction to prohibit enforcement of this law showed up one day on Judge Stras’ CM/ECF page, he would suddenly be a convert to the benefits of statewide/nationwide injunctions.

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