Last week, the U.S. Supreme Court in Trump v. CASA ruled that nationwide injunctions “likely exceed the equitable authority that Congress has granted to federal courts” via the Judiciary Act of 1789. The case had to do with President Trump’s executive order on birthright citizenship, which was enjoined by multiple district courts. The Court declined to address the underlying merits of the executive order, but did address the issue of nationwide or universal injunctions: a tool used by judges to block the federal government from enforcing a law broadly—not limited solely to parties named in a specific lawsuit. The Court held that nationwide injunctions are likely impermissible under suits brought by non-State parties.
Injunctions are a foundational early remedy for groups trying to block certain regulations and programs from going into effect. AGC has applied for injunctions and currently benefits from a nationwide injunction in its Davis-Bacon Act litigation, wherein AGC is a named party in the case. On account of AGC’s broad membership and national chapter network, we predict that AGC will remain well positioned because the Court did not prohibit associations from suing on behalf of their members. Though associational standing is difficult to establish, AGC did just that in a four day evidentiary hearing in the Davis-Bacon district court.
The Court’s opinion was grounded in history and explained that injunctions are a form of relief that did not exist for most of our country’s history, only coming into fashion recently. Without nationwide injunctions, only the stakeholders directly involved in the lawsuit will enjoy the benefits of so-called “injunctive relief” that mandates specific government action. That is, if a court issues an injunction preventing an agency from enforcing a rule, only parties to the suit that have demonstrated direct harm (i.e., legal standing – see related article) are definitively safe from enforcement. The agency can continue to enforce the rule against non-parties (or it could choose universal forbearance out of convenience).
Fortunately, the Court did acknowledge that for certain situations where a major national program is under review, there may be a path to nationwide, universal relief. This path may be especially available for challenges made under the Administrative Procedure Act via vacatur (nullifying the challenged action entirely), which is often the remedy sought by AGC in many regulatory challenges. The decision also leaves open other avenues to lower-court nationwide, universal relief: class actions, multi-district litigation, certain suits by states, and lawsuits that demand complete relief and “indivisible” remedies.
As noted above, the federal doctrine of associational standing allows groups like AGC to represent the interests of our members in court. We believe that rulings made in our favor will still be enjoyed by all our members. But contractors who are not AGC members may not enjoy those benefits.
AGC’s challenges to federal rules have historically demonstrated that the agency action hits every member similarly— e.g., increased costs, compliance headaches, competitive disadvantages. And because AGC has members across the country in all 50 states, the District of Columbia, and Puerto Rico, we will continue to argue in court that anything less than nationwide relief is incomplete relief. When every member faces the same regulatory burden, it would seem the Supreme Court’s opinion would allow lower federal courts to justify broad relief as necessary to remedy AGC’s injuries (i.e., “complete relief”). On the merits—which usually are decided months after the complaint is filed and after the preliminary injunctive relief stage—AGC still retains its statutory authority under the Administrative Procedure Act to “set aside” illegal federal agency or presidential actions. AGC will be closely monitoring this issue and the consequences of this decision. The real impact of CASA will depend on how district judges interpret it on the ground and circuit courts correct them if necessary. We need to watch for several developments. If you have any questions about this case, please contact Spencer Phillips.