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08/02/2019

Josh Blackman and Seth Barrett Tillman on Equity and Causes of Action in Some Prominent Recent Cases
Michael Ramsey

At Volokh Conspiracy, Josh Blackman & Seth Barrett Tillman: What is the Plaintiffs' Cause of Action in the Wall Litigation? From the introduction:

On Friday, the Supreme Court stayed the District Court's decision in Trump v. Sierra Club, which had halted the administration's plan to construct a border fence. The Court's short entry on the "shadow docket" offered only a single explanatory sentence:

Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary's compliance with Section 8005.

What is the Plaintiffs' cause of action in Sierra Club v. Trump? ...

Ultimately, the Ninth Circuit found there were two possible causes of action: 

Plaintiffs may bring their challenge through an equitable action to enjoin unconstitutional official conduct, or under the judicial review provisions of the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., as a challenge to a final agency decision that is alleged to violate the Constitution, or both.

Slip op. at 4 (bold added). The Sierra Club argued that "Plaintiffs have an ultra vires cause of action." The brief adds, "For two centuries, this Court has permitted judicial review of ultra vires executive action without invoking a zone-of-interests test."

This argument closely resembles the briefing in the Emoluments Clauses cases. In District of Columbia & Maryland v. Trump, for example, the two plaintiffs framed their constitutional causes of action in a very similar fashion. They contended that "[t]he ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England." Both of these cases invoke "equity" in some fashion. However, it is unclear if plaintiffs are referring to the type of remedy sought (i.e., injunctive relief) or the jurisdiction of the court to hear a class of cases (i.e., equitable jurisdiction). The two concepts are related, but they are not the same.

And from the core of the argument:

Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc. (1999) recognized that "the equity jurisdiction of the federal courts is the jurisdiction in equity exercised by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act, 1789 (1 Stat. 73)." In order to invoke the equitable jurisdiction of the federal courts, a plaintiff must put forward a cause of action within (or analogous to) the jurisdiction of the High Court of Chancery in England as it stood in 1789. 

At that time, as a general matter, litigants could invoke the court's equitable jurisdiction to stop ultra vires actions by government officers, but only if plaintiff's rights or duties regarding its own property (i.e., as the legal or beneficial owner) were at issue. Alternatively, the court's equitable jurisdiction could be invoked if a cause of action were otherwise supplied by the common law (such as contractual rights or obligations) or by statute.

A plaintiff's mere request for equitable or injunctive relief does not invoke a federal court's equitable jurisdiction. Likewise, even if the plaintiff has an Article III injury-in-fact, his bare assertion of illegal or ultra vires conduct by federal officers is insufficient to invoke the federal court's equitable jurisdiction. As a general matter, such a claim could only go forward if there is an invasion (or imminent invasion) of the plaintiff's property rights, or if the case presents an analogous concrete dispute involving the plaintiff's rights or duties regarding his own property. For example, the plaintiff relies on a cause of action within (or analogous to) the jurisdiction of the High Court of Chancery in England as it stood in 1789.

In other words, in both the Wall litigation and Emoluments Clauses cases, the plaintiffs must identify a cause of action (or an analogous cause of action) that would have been available under the equitable jurisdiction of the High Court of Chancery in England at it stood in 1789. Plaintiffs have not even attempted to make such a showing. Indeed, the United States attempted and failed to make such a showing in Grupo Mexicano. As a result, the government's request for relief was rejected. Plaintiffs' purported equitable cause of action, based only on an ultra vires claim, would have been unknown to William Blackstone, Chancellor Kent, or Justice Story.