Detentions’ Immediacy Forgives Class Flaws

Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.

By Perry Cooper

Lawyers sprang into action after President Donald Trump’s Jan. 28 executive order on immigration led to the detention of many foreign travelers at U.S. airports.

By the evening of Jan. 29, five U.S. district courts—in Brooklyn, N.Y.; Boston; Alexandria, Va.; Los Angeles; and Seattle—issued temporary rulings blocking aspects of the order. Many of the orders purported to provide injunctive relief to a class of those similarly situated.

But can courts provide classwide relief when a class hasn’t been certified or where the suits weren’t even filed on a class basis?

It turns out they can, especially in emergency situations, Josh Blackman told Bloomberg BNA. Blackman is a professor at the South Texas College of Law in Houston who specializes in constitutional law and serves as an adjunct scholar at the libertarian Cato Institute in Washington.

Rule 23 Doesn’t Apply...Exactly

The executive order indefinitely suspended resettlement of Syrian refugees and all other refugee resettlement for 120 days. It also banned entry for 90 days of nationals from seven predominantly Muslim countries: Syria, Iraq, Iran, Sudan, Libya, Somalia and Yemen.

As people from these countries were detained at airports around the U.S., attorneys filed mass habeas corpus petitions on their behalf.

Groups of unnamed plaintiffs can be treated as a class under Federal Rule of Civil Procedure 23.

But Rule 23 doesn’t technically apply to habeas proceedings, Blackman said.

“It’s this weird, nebulous thing the Second Circuit did in the ‘70s, saying ‘we’re going to apply Rule 23 even though it doesn’t really apply,’” Blackman said. “I don’t know how that’s valid but it’s been done for 30 years.”

No Class Certified, Yet

None of the courts that purported to extend relief to a class actually certified a class first.

It’s a “thorny question” whether the court had the authority to temporarily restrain the government from taking action against abesent class members before class certification, plaintiffs’ advocate Jonathan E. Taylor told Bloomberg BNA.

Taylor is principal at boutique appellate litigation firm Gupta Wessler PLLC in Washington.

“Some courts have taken the position that they may grant such relief only if necessary to provide full relief to the named plaintiffs,” he said in an e-mail. “Others have held that it is within their broad, inherent equitable powers to grant such relief so long as they have jurisdiction over the defendant and class certification is not yet practicable.”

Ideally, the courts would have had time to certify a perfectly tailored class before issuing temporary classwide relief, Blackman and Taylor agree.

“But these were extraordinary circumstances, time was of the essence,” Taylor said.

And the courts are still free to certify classes in these cases in the future.

“The courts should circle back and more carefully make the findings necessary for a class certification order,” Jocelyn Larkin told Bloomberg BNA. “The emergency nature of the filings made this impossible for everybody.” Larkin is the executive director of the pro-plaintiff Impact Fund in Berkeley, Calif.

Injunction Still Binding

The defendants are nevertheless still bound by the injunction under the collateral bar rule, Larkin said in an e-mail.

Under that rule, “a defendant must obey an injunction regardless of whether it is improperly broad, unless it is transparently invalid or issued by a court that lacked jurisdiction,” she said.

“In the Second Circuit, district courts can issue temporary injunctions against the government that protect non-class members, at least until the court has time to certify a class,” she said.

That doesn’t mean that the way things went down over the weekend didn’t get under Blackman’s skin.

“It drives me nuts because procedurally these courts did it totally wrong,” he said.

In a typical situation, the New York order would have been reversed by the Second Circuit in five seconds, he said. “But this isn’t a normal case.”

To contact the reporter on this story: Perry Cooper in Washington at

To contact the editor responsible for this story: Steven Patrick at

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Litigation on Bloomberg Law