Late Saturday evening and early Sunday morning, four district court issued orders enjoining the enforcement of President Trump’s executive order on immigration. This rapid-fire episode yielded important decisions about constitutional law. In this post, as the situation has calmed down, I’d like to walk through the procedural aspects of what (I am calling for lack of a better term) The Airport Cases. (For background see my from post last night).

Darweesh et al v. Trump et al (EDNY)

This suit arose from the detentions of Hameed Khalid Darweesh and Sameer Abdulkhaleq Alshawi at JFK Airport. The ACLU’s petition, however, was also brought “on behalf of themselves and all others similarly situated.” Concurrently with the petition, the ACLU also filed a motion for class certification.

Petitioners and the proposed class, by and through their attorneys, hereby respectfully move this Court for an order certifying a representative class of Petitioners, pursuant to United States ex rel. Sero v. Preiser, 506 F.2d 1115 (2d Cir. 1974). Petitioners ask this Court to certify a class consisting of all individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States, but who have been or will be denied entry to the United States on the basis of the January 27, 2017 Executive Order.

In the 1974 case of U.S. ex rel. Sero v. Preiser, the Second Circuit held that though Federal Rule of Civil Procedure 23 does not apply directly to habeas corpus actions, citing the All Writs Act, the court fashioned a procedure similar to class action certification for habeas corpus. Wang v. Reno (EDNY 1994) described the caselaw this way:

Habeas class actions are an appropriate procedural vehicle in certain limited situations. Although habeas actions are not strictly governed by the Federal Rules of Civil Procedure and therefore the class action provisions of the rules do not automatically apply to habeas actions, a court retains the power “to fashion for habeas actions ‘appropriate means of procedure, by analogy to existing rules or otherwise in conformity with judicial usage.’ ” Sero v. Preiser, 506 F.2d at 1125 (quoting Harris v. Nelson, 394 U.S. 286, 299, 89 S.Ct. 1082, 1090, 22 L.Ed.2d 281 (1969)); see generally Bertrand v. Sava, 684 F.2d 204 (2d Cir.1982); Nguyen Da Yen v. Kissinger, 528 F.2d 1194, 1203 (9th Cir.1975) (class certification appropriate in “unique” circumstances); Williams v. Richardson, 481 F.2d 358 (8th Cir.1973); United States ex rel. Walker v. Mancusi, 338 F.Supp. 311, 315–16 (W.D.N.Y.1971), aff’d, 467 F.2d 51 (2d Cir.1972) (habeas corpus class certification for 38 prison inmates); Martin v. Strasburg, 689 F.2d 365, 374 (2d Cir.1982).
Though Rule 23 does not apply directly, courts have applied the traditional four requirements: numerosity, common questions of law, typical defenses, and fair representation. Nonetheless, the courts have still held that classes must be “certified” by court order.
The motion for class certification has not yet been acted upon. Yet, in the Emergency Motion for Stay of Removal, the ACLU asked the court to stay the removal of “putative class members.”

Therefore, on behalf of themselves and all others similarly situated putative class members, Petitioners respectfully move this Court to immediately grant a class-wide stay of removal during the pendency of this habeas petition for the reasons stated in the attached Memorandum of Law.

In other words, the ACLU asked the court to grant class-wide relief to a class that had not yet been certified. Judge Donnelly did just that in her late-night order. Her order purported to apply all aliens that were being detained under the Executive Order:

ENJOINED AND RESTRAINED from, in any manner or by any means, removing individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen, legally authorized to enter the United States.

Without certifying a class–even under the 2nd Circuit’s habeas protocol–this order was ultra vires with respect to individuals other than Darweesh and Alshawi. In other words, absent a class-action certification, courts cannot grant relief to unnamed and unknown parties. (If anyone can find a precedent where a court grants an emergency habeas corpus petition for unknown parties, please send it to me). Subsequent to her opinion, Judge Donnelly issued an order that the government is required “to provide a list of individuals detained, pursuant to the January 27, 2017 Executive Order.” This is an important step necessary to certify a class–a step that should have preceded any 11th-hour injunction.

Yet, there is a further wrinkle. By the time Judge Donnelly issued her order, both Darweesh and Alshawi had already been released. At that point, the habeas corpus petition should have been moot. Some colleagues on Twitter last night suggested that this may be a case where the “Capable of Repetition Yet Evading Review” standard applies. I’m not persuaded. At that very time, others were being detained at airports across the United States. There were many other opportunities to issue orders with respect to people who were in fact being detained, unlike Darweesh and Alshawi.

The emergency motion to stay removal, however, was not moot. Even if the two individuals were released, they were still potentially subject to removal during the pendency of the current action. Judge Donnelly’s order prohibited the respondents from “removing” them, as opposed to releasing them from custody. Indeed, in hindsight, nothing in the order actually ordered the government to release from detention aliens in custody. It only said the government could not deport them. (I think I tweeted otherwise last night in my haste; I apologize for that).

So in short, Judge Donnelly’s emergency motion for a stay of removal was not moot, but was ultra vires, in that there was no formal class certification, even under the 2nd Circuit’s lax habeas rules.

One final note about Judge Donnelly’s opinion. Her final opinion stated:

It is further ordered that to assure compliance with the Court’s order, the Court directs service of this Order upon the United States Marshall for the Eastern District of New York, and further directs the Unite States Marshals Service to take those actions deemed necessary to enforce the provisions and prohibitions set forth in this Order.

The very last paragraph made me think of Ex Parte Merryman. First, Roger Taney held General Cadwalader (Merryman’s jailer) in contempt, and ordered his Marshal to arrest the Union General. The poor Marshal wasn’t allowed to enter Fort McHenry (no surprise there). Later, Taney ordered the clerk of court to deliver Taney’s opinion to President Lincoln. Good luck with that. I will update this post as I analyze the other three opinions.

Aziz et al v. Trump et al (EDVA)

This case arose from the detention of various individuals at Dulles Airport. The Legal Aid Justice Center, joined by Andy Pincus and his colleagues at Mayer Brown, filed an emergency application for a temporary restraining order, as opposed to an emergency stay from removal in Darweesh. The application names three individuals: Tareq Aqel Mohammed Aziz and Ammar Aqel Mohammed Aziz. Plus, the complaint includes John Does 1-60.

Petitioners are 50 to 60 Lawful Permanent Residents (“LPRs”) currently detained at Dulles Airport. Respondents have detained these individuals or otherwise barred them from exiting the airport or continuing their transit into the United States. Respondents have denied these individuals access to lawyers. Upon information and belief, respondents imminently intend to remove these individuals from the United States.

Pursuant to Fed. R. Civ. P. 65, petitioners respectfully request that this Court issue a temporary restraining order that (a) orders respondents to permit undersigned counsel or other lawyers access to petitioners, and (b) forbids respondents from removing petitioners from the United States for a period of 7 days.

Petitioners JOHN DOES 1-60 are approximately 50-60 lawful permanent residents of the United States, most of whom are returning from trips abroad, all of whom are
nationals of one of the following seven countries: Lybia, Iraq, Iran, Yemen, Syria, Sudan, Somalia. All are in the very same situation as the Aziz brothers. All are presently being held against their will by CBP officers in the international arrivals area of Dulles Airport. All are
being held in an area where other passengers disembarking from international flights can see and hear them; accordingly, there is no reason that their attorneys could not be permitted to meet
with them.

Counsel offered the following prayer for relief:

Issue a temporary restraining order that (a) compels respondents to permit lawyers to meet with the individuals currently detained at Dulles airport and (b) forbids respondents from removing petitioners from the United States for a period of 7 days.

Late Saturday evening, Judge Leonie M. Brinkema issued a two sentence order.

This order suffers from the same problem as Darweesh. Who are the petitioners? The court ordered the government not to remove unnamed John Does. Indeed, it is difficult for a court to hold a government official in contempt for violating an order against an unnamed party. I do not know whether either of the named petitioners were released, so I can’t comment on the mootness argument.

John Doe 1, John Doe 2 v. Trump et al (D.Wash).

This case, filed by the Northwest Immigrant Rights Project, in the Western District of Washington, does not name any detained aliens. Yet, Judge Thomas S. Zilly issued an order granting an emergency stay of removal:

1. THE COURTS GRANTS A STAY OF REMOVAL.
2. DEFENDANTS ARE ENJOINED FROM REMOVING JOHN DOE I AND JOHN DOE II FROM THE UNITED STATES PENDING FURTHER ORDER OF THE COURT.

This order suffers from the same problems as the others, and more: it doesn’t name an actual person in custody.

Louhghalam et al v. Trump et al (D.Mass).

The final entry in the Airport Cases quartet involved two individuals detained at Logan Airport in Boston. The ACLU filed a petition for a writ of habeas corpus, and sought declaratory and injunctive relief on their behalf.

(1) Issue a Writ of Habeas Corpus requiring Respondents to release Petitioners;

(2) Issue an injunction ordering Respondents not to detain any individual solely on the basis of the EO;

(3) Enter a judgment declaring that Respondents’ detention of Petitioners is and will be unauthorized by statute and contrary to law;

Here, the ACLU did not file an emergency motion for a stay of removal.

Despite no request for a TRO, Judge Allison D. Burroughs granted a TRO early Sunday morning. Further, despite the fact that the ACLU of Massachusetts did not seek relief on “similarly situated” parties, the court granted such relief:

1. The petitioners have met their burden of establishing a strong likelihood of success in establishing that the detention and/or removal of the petitioners and others similarly situated would violate their rights to Due Process and Equal Protection as guaranteed by the United States Constitution;

2. Absent a stay of removal, petitioners and others similarly situated, including lawful permanent residents, citizens, visa-holders, approved refugees, and other individuals from nations who are subject to the January 27, 2017 Executive Order, are likely to suffer irreparable harm.

My emphasis added, as the order specifically reaches those “similarly situated,” without even the hint of an impending class certification.

Josh Block of the ACLU offered a few cases from the 9th Circuit where courts could issue class-wide injunctive relief, even where a class has not yet been certified. For example, Lavan v. City of Los Angeles (C.D. CA 2011) provides:

Finally, the Court notes that Federal Rule of Civil Procedure 65(d) provides that an injunction or restraining order only binds: “(A) the parties; (B) the parties’ officers, agents, servants, employees, and attorneys; and (C) other persons who are in active concert or participation with [the parties].” Although this lawsuit is stylized as a class-action, the equivalent of class-wide relief may still be appropriate despite the fact that a class has not yet been certified. In Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486 (9th Cir.1996), the Court held that “[w]hile injunctive relief generally should be limited to apply only to named plaintiffs where there is no class certification, an injunction is not necessarily made overbroad by extending benefit or protection to persons other than prevailing parties in the lawsuit-even if it is not a class action — if such breadth is necessary to give prevailing parties the relief to which they are entitled.” Easyriders Freedom F.I.G.H.T., 92 F.3d at 1501-02 (internal citations omitted) (emphasis in original). As discussed, the allegations in the Complaint indicate that the City is seizing and destroying property that has been temporarily left in public places by its owner, but not abandoned. Thus, it would likely be impossible for the City to determine whose property is being confiscated — i.e. whether it is one of the named Plaintiffs or another homeless person — and a preliminary injunction, as fashioned below, is necessary to “give prevailing parties the relief to which they are entitled.” Id.

Another case, Justin v. City of Los Angeles (C.D. Ca 2000), involved similar circumstances:

As discussed, the allegations in the Complaint indicate that the City is seizing and destroying property that has been temporarily left in public places by its owner, but not abandoned. Thus, it would likely be impossible for the City to determine whose property is being confiscated—i.e. whether it is one of the named Plaintiffs or another homeless person—and a TRO, as fashioned below, is necessary to “give prevailing parties the relief to which they are entitled.” Id.

In these two cases, because of the transitory nature of homeless people, who often leave their property in various places, “it would likely be impossible for the City to determine whose property is being confiscated.” This warranted an exception to the usual rule. Such an expansive injunction is justified to ensure the relief is provided.

This sort of analysis does not seem apt for a specific set of individuals currently being held in detention. Rather, the problem in the airports is that the challengers do not know who is actually being held in captivity. But the government most certainly does know.

I could only find a handful of decisions outside the 9th Circuit that relied on this line of precedent. The District of Connecticut (which is within the 2nd Circuit) cited Easyriders, but declined to expand the injunction beyond the named party:

Traditionally, the rule is that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979). Under Federal Rule of Civil Procedure 65(d), an injunction “is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.” Injunctive relief generally should be limited to apply only to named plaintiffs where no class has been certified, see Zepeda, 753 F.2d at 727–28 & n. 1, however, “an injunction is not necessarily made overbroad by extending benefit or protection to persons other than prevailing parties in the lawsuit—even if it is not a class action—if such breadth is necessary to give prevailing parties the relief to which they are entitled.Bresgal v. Brock, 843 F.2d 1163, 1170–71 (9th Cir.1987) (emphasis in original); see also Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 15011502 (9th Cir.1996). No class has been certified and there is only one named plaintiff in this action. An injunction applying only to Plaintiff—i.e., barring Defendant from enforcing § 526(a)(4) against him—will provide Plaintiff with complete relief. It is not necessary to make the injunction any broader.
Zelotes v. Adams, 363 B.R. 660, 667 (D. Conn. 2007), rev’d sub nom. Adams v. Zenas Zelotes, Esq., 606 F.3d 34 (2d Cir. 2010)

(The 2nd Circuit remanded in light of intervening SCOTUS precedent, and did not address the scope of the injunction).

The Southern District of Ohio, furthermore, distinguished the case: Easyriders concerned a “permanent” injunction, and not “preliminary injunction.”

Having recognized the possibility of a Division-wide injunction under the appropriate circumstances, the Court concludes that such possible relief is not appropriate here. The posture of today’s decision is a preliminary injunction order and not a final decision on the merits resulting in permanent injunctive relief as in Easyriders. That latter case’s rationale is not applicable here to permit Best and Bowman to pursue Division-wide relief; unlike in Easyriders, extending the benefit of any preliminary injunction so broadly is not necessary to afford the two moving plaintiffs the relief to which they are entitled. See also Bresgal, 843 F.2d at 1170-71 (upholding broad injunction in order to grant named plaintiffs complete relief); Zepeda v. U.S. INS, 753 F.2d 719, 727-28 & n. 1 (9th Cir.1985) (concluding that a preliminary injunction that benefitted non-parties must be limited only to the individual plaintiffs in the absence of class certification). It is possible to grant effective relief the individual plaintiffs, Best and Bowman, without inevitably covering those within the possible class.

Lee v. City of Columbus, Ohio, No. 2:07-CV-1230, 2008 WL 2557255, at *4 (S.D. Ohio June 24, 2008)

However both Lavan and Justin concern a temporary restraining order, not permanent relief.

Josh also pointed to the SDNY decision in Strouchler v. Shah by Judge Scheindlin:

As an initial matter, I must decide whether it is appropriate to consider evidence regarding the putative class members when adjudicating plaintiffs’ motion for a preliminary injunction. Because no class has yet been certified, defendants argue that “only the [named plaintiffs’] claims are relevant to the determination of whether they are likely to succeed on the merits.”[75] It is true that named plaintiffs must have standing to assert claims on behalf of the class and that, in order to satisfy the typicality prong of Rule 23(a), named plaintiffs must assert that they have suffered the same injuries as class members.[76] But that does not mean that I should ignore the alleged harm to putative class members or the likelihood that their injuries will enable the plaintiffs to succeed on the merits.

It is well established that “[c]ertain circumstances give rise to the need for prompt injunctive relief for a named plaintiff or on behalf of a class” and that the “court may conditionally certify the class or otherwise award a broad preliminary injunction, without a formal class ruling, under its general equity powers.”[77] Less frequently discussed, however, is whether a court may rely primarily on likely harm to the putative class members — rather than harm to the named plaintiffs — at the preliminary injunction stage.

The Court found that though the class-action certification process has not been completed, it is likely that the plaintiffs will meet Rule 23’s requirements:

According to the Second Circuit’s guidance in LaForest, plaintiffs should be permitted to “adduce evidence of harm representatively” if they can show that they are similarly situated to the putative class members and such evidence will be admissible if the class is subsequently certified. Preliminarily examining plaintiffs’ entitlement to class status is therefore appropriate, both for determining the likelihood of irreparable harm and the appropriate scope of any injunctive relief. Plaintiffs have moved for class certification but the parties’ briefs are not yet fully submitted. Based on the evidence described below, however, it is likely that plaintiffs will be able to meet the Rule 23 prerequisites of numerosity, commonality, typicality, and adequacy.

Because class certification is likely, I will consider the facts relating to putative class members in order to adjudicate this motion. This is done without prejudice to revisiting the class certification question de novo upon submission of briefs by all parties.

Ultimately, SDNY issued a partial injunction to some, but not all members of the putative class, based on some very specific factors associated with the receipt of home care for the elderly and disabled.

I think the bottom line is that courts, in a pinch, have turned to generally-defined equitable powers to reach the putative class, even in the absence of a certification. Another case from the Middle District of Tennessee, pointed by a colleague on the ConLaw list serve, makes this point directly:

Neither must Plaintiffs seek Rule 23 certification in order to enjoin the conduct about which they complain. “[A] district court may, in its discretion, award appropriate classwide injunctive relief prior to a formal ruling on the class certification issue based upon either a conditional certification of the class or its general equity powers.” Thomas v. Johnston, 557 F. Supp. 879, 917 (W.D. Tex. 1983) (citation omitted). See also Lee v. Orr, No. 13-cv-8719, 2013 WL 6490577, at *2 (N.D. Ill. Dec. 10, 2013) (“The court may conditionally certify the class or otherwise order a broad preliminary injunction, without a formal class ruling, under its general equity powers. The lack of formal class certification does not create an obstacle to classwide preliminary injunctive relief when activities of the defendant are directed generally against a class of persons.” (internal quotation marks and citation omitted)), subsequent determination, WL 3776962 (N.D. Ill. July 18, 2013); Kaiser v. County of Sacramento, 780 F. Supp. 1309, 1312 (E.D. Cal. 1991) (granting class-wide injunctive relief even though the court had only provisionally certified the class and had not yet fully addressed defendants’ class certification arguments); NEWBERG ON CLASS ACTIONS § 4:30 (5th ed. 2013) (“[A] court may issue a preliminary injunction in class suits prior to a ruling on the merits.”).

And, in the always cited Strawer v. Strange:

Courts in this District and others have previously issued a preliminary injunction concurrently with certifying a class or even prior to fully certifying a class. See e.g. Harris v. Graddick, 593 F.Supp. 128 (M.D.Ala.1984) (certifying a plaintiff and defendant class concurrently with issuing a preliminary injunction); Kaiser v. County of Sacramento, 780 F.Supp. 1309, 1312 (E.D.Cal.1991) (granting class-wide injunctive relief even though the court had only provisionally certified the class and had not yet fully addressed defendants class certification arguments); Thomas v. Johnston, 557 F.Supp. 879, 916 n. 29 (W.D.Tex.1983) (“It appears to be settled … that a district court may, in its discretion, award appropriate classwide injunctive relief prior to a formal ruling on the class certification issue based upon either a conditional certification of the class or its general equity powers.”). Here, Plaintiffs are not seeking monetary damages and the court has given Attorney General Strange and Judge Davis ample opportunity to address the preliminary injunction issues. The Court finds that no further briefing or evidentiary materials are necessary. Plaintiffs have clearly met their burden for issuance of a class-wide preliminary injunction against the enforcement of state marriage laws prohibiting same-sex marriage.

In a vacuum, the proper sequencing would be to (1) ascertain who is in custody, (2) file complaints on their behalf, (3) seek injunctive relief on their behalf.  Due to the haze of war yesterday, with good reason, the various groups skipped step 1, and filed briefs on behalf of unknown parties. In any event, I am still skeptical that the courts had an adequate justification to grant relief to a putative class here consisting of unnamed members, when the unnamed individuals could have been ascertained given a few more hours. Though, I am not blind to the circumstances of yesterday. People were being detained in violation of the law, and dedicated attorneys were scrambling to draft habeas petitioners, often while sitting on the floors of airports. They should be commended for their valor. This post purely seeks to analyze the procedural issues from an abstract perspective.

The relief portion of the Massachusetts order is, by far, the most involved of the four.

First, respondents:

shall limit secondary screening to comply with the regulations and statutes in effect prior to the Executive Order, including 8 U.S.C. s. 1101(a)(13)(C):

This remedy is not limited to a stay of removal, but also orders the respondents to stop enforcing portions of the executive order, altogether.

Second, respondents:

shall not, by any manner of means, detain or remove individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, lawful permanent residents, and other individuals from Iraq, Syria, Sudan, Libya, Somalia and Yemen who, absent the Executive Order, would be legally authorized to enter the United States.

This remedy is even broader. The EDNY order was limited to removal. This also concerns detention, meaning that if they arrive in the United States, they have to be let through customs.

Third, to make sure that people are actually allowed to board planes to Logan–where they cannot be detained:

Customs and Border Protections shall notify airlines that have flights arriving at Logan Airport of this Order and the fact that individuals on these flights will not be detained or returned based solely on the basis of the Executive Order.

 

This the key provision, that allows foreign airlines to permit people to board flights bound to Logan (but not other airlines).

I’ll note in closing one general note about the distinction between judgments and precedents. This order, in particular, doesn’t purport to certify a class–even on an interim basis. It also only applies to Logan Airport. Yet, the government will likely treat this as a nationwide injunction binding all parties at all points of entry. This decision operates than as persuasive precedent, and not binding judgments.

Final Update

Please read through this long thread for all the final nuances:

Final Update: After some more reflection, here is a general summary of the issues at play. With respect to the Brooklyn order, the ACLU sought to certify a class. Under 2nd Circuit precedent, courts can issue injunctive relief to putative classes of unnamed members, even in habeas corpus actions. However, Judge Donnelly’s order, drafted under very tight circumstances (with good reason), fails to make the appropriate findings to recognize such a prospective class. Because it is vulnerable to a future appeal, Judge Donnelly should issue a modified opinion explaining the basis for the likelihood that a class would be certified.

With respect to the Boston case, the ACLU never sought to certify a class, but only brought the case on behalf of two individuals. Despite this fact, the district court still purported to issue injunctive relief to a putative class, without making any of the requisite findings. This order too, is extremely vulnerable to a future appeal. The court should modify the opinion.
Mootness is not that big of a problem. First, under the voluntary cessation doctrine, if the policy is changed, or (more likely) re-interpreted, courts can maintain jurisdiction if the government is likely to re-offend and break the law. Second, with respect to the Brooklyn order, it applies to “removal,” rather than detention, so it is not mooted by the release of the individuals from JFK. With the Boston order, it orders the restoration of screening policies from before the Executive Order, but impacts flights inbounds to Logan (in Boston).
Both judges should take steps to clarify their rulings, now that they have time, and make clear that they are granting preliminary injunctive relief on behalf of a putative class of unnamed members, even though the proper certifications have not been complete. This has generally been understood to be within the court’s inherent equitable powers, though it is ill-defined.
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