"Specific Relief Against Sweeping Executive Decrees," from Prof. James Pfander (Northwestern)

I’m very glad to pass along this item from Prof. James Pfander about Department of State v. AIDS Vaccine Advocacy Coalition, a subject on which I’m not an expert but he is:

In Department of State v. AIDS Vaccine Advocacy Coalition (March 5), the Supreme Court refused to stay a federal district court order directing the executive branch to make payments of foreign aid money duly appropriated by Congress and, as the district court ruled, wrongly frozen by an order of the President. The Court issued the order as part of its emergency docket, without explanation. But the order drew a sharp dissent from four Justices that raises important questions about district courts’ power to remedy the federal suspension of payments under existing appropriations.

Writing for the dissenters, Justice Alito (1) questioned the propriety of the order’s operating for the benefit of parties who had not appeared in the litigation (2) and characterized the district court’s actions as likely outside its jurisdiction and violative of federal sovereign immunity. Here, I will address the jurisdictional and immunity issues.

To get at those issues, we might begin by acknowledging some tension in the Court’s definition of federal judicial power to grant equitable relief of the kind at issue in the district court. In one line of cases, headlined by the private-law decision in Grupo Mexicano (1999), the Court defined federal equity power in historic terms, looking to the practice of the High Court of Chancery in England during the founding era for guidance.

In a second line, exemplified by the public-law decision in Armstrong v. Exceptional Child Center (2015), the Court explained federal equity power as the continuation of a tradition of judicial control of executive action that took root in England in the seventeenth century. That tradition was administered by the courts of common law, deploying such writs as mandamus, prohibition, certiorari, and quo warranto. The Armstrong Court thus offered a more dynamic conception of federal equity today than Grupo might support. In other post-Grupo cases, the Court has proceeded on the assumption that federal courts have broad power to enjoin unlawful federal action, even in new settings. E.g., Free Enterprise Fund v. Public Company Accounting Oversight Board (2010).

The Department of State dissenters emphasized the Grupo line. But Grupo arose as a private law dispute that was brought in federal court on the basis of diversity of citizenship and did not implicate government compliance with law. The dissenters did not consider the possibility that common law practice, as later subsumed by federal equity, may have provided substantial support for the exercise of district court power in public law litigation. Had they done so, as Armstrong suggests, they would have encountered a nineteenth-century decision upholding a lower court mandamus order compelling executive officers to pay money due under congressional appropriations.

The Supreme Court, in Kendall v. United States ex rel. Stokes (1838), upheld a writ of mandamus directing the postmaster of the United States to pay for services rendered by government contractors. The lower court had found, essentially without dispute, that Congress had approved the payments and the postmaster had acted unlawfully in refusing to pay the funds. The Kendall Court agreed that, on such a record, the writ of mandamus should issue to compel payment. As the Court explained, the duty to pay was strictly ministerial; an order to that effect did not threaten the principle stated in Marbury v. Madison (1803) that executive branch discretion was free from judicial control. Such an order restores the status quo—payment in accordance with duly enacted law—and is an uncontroversial remedy for an unlawful executive payment suspension. Given that Congress had approved the payment, sovereign immunity did not enter into the analysis.

In reaching that conclusion, the Kendall Court also addressed the claim that the executive enjoys a power to stop the payment of appropriated funds:

This doctrine cannot receive the sanction of this Court. It would be vesting in the President a dispensing power which has no countenance for its support in any part of the Constitution, and is asserting a principle which, if carried out in its results to all cases falling within it, would be clothing the President with a power to control the legislation of Congress and paralyze the administration of justice.

To contend that the obligations imposed on the President to see the laws faithfully executed implies a power to forbid their execution is a novel construction of the Constitution, and is entirely inadmissible.

Kendall thus holds that federal courts may assess the legality of an executive refusal to pay appropriated funds and enforce a ministerial duty to make such payments.

It would be strange to conclude, as Justice Alito’s dissent would have it, that sovereign immunity blocks the judiciary from enforcing such a ministerial duty today. Proper mandamus relief does not impinge on the government’s immunity; indeed, district courts have routinely granted mandamus-like relief following the merger of law and equity in the Federal Rules of Civil Procedure (1938) and the statutory expansion of mandamus venue in 1962. Federal courts today often administer such relief through injunctions, recognizing that the formal writ of mandamus has been abolished and the relief in question issues by way of action or motion under the Federal Rules.

The analysis has been complicated by new statutory waivers of sovereign immunity. Since Kendall came down, Congress has surrendered federal immunity from suit in the Tucker Act, which provides for the Court of Federal Claims (CFC) to hear suits for breach of contract and certain other claims for money damages. Congress has also broadly accepted the proposition that individuals may pursue injunctive and declaratory relief from wrongful administrative action through suits that name the government as a party (instead of requiring the suits to proceed against the responsible official). Today, the puzzle lies not in overcoming sovereign immunity, but in deciding whether Congress has assigned the suit to the CFC as one for money damages or to the district courts as one for equitable relief.

The Court held in Bowen v. Massachusetts (1988) that a federal district court (rather than the CFC) had jurisdiction under the Administrative Procedure Act (APA) to adjudicate the legality of an executive branch refusal to pay reimbursements due under federal law. The Bowen Court recognized that the APA left suits for “money damages” to the CFC. But the Court defined such suits as those seeking compensatory relief for an injury. By contrast, if the plaintiff sues for declaratory and injunctive relief seeking reimbursements to which the plaintiff is already entitled, the action may proceed in district court. On the Bowen Court’s view, plaintiffs would pursue compensation for losses they suffered as a result of the Trump Administration’s funding freeze in the CFC, and pursue release of the unlawfully frozen funds themselves in district court.

But Bowen has been subject to some trimming that arguably recognizes a broader role for the CFC as to suits to recover money. Justice Alito invoked those developments in arguing that the district court had overstepped its bounds in ordering the government to pay money.

In addition, Justice Alito cited Edelman v. Jordan (1974), which lets federal courts order state officials to make prospective payments from the treasury, but views state sovereign immunity as prohibiting federal courts from ordering the retrospective payment of past due amounts. One might fairly ask how readily Edelman‘s state sovereign immunity analysis applies to suits against the federal government under a statutory scheme that (as we have seen) broadly waives federal immunity. But even assuming that Edelman‘s prospective/retrospective distinction fairly describes the jurisdictional line between the district courts and the CFC, it does not necessarily follow that the district court erred in ordering the release of the money in question.

Consider the way this litigation unfolded. The district court rejected the executive branch’s suspension of payments and ordered payments in the usual course. The Trump Administration did not comply with that order, leading to a growing accumulation of unpaid funds.

Justice Alito’s position would apparently consign the plaintiffs, seeking recovery of those funds, to bringing a separate suit in the CFC that could take months or years to resolve. This would further the executive’s goal of suspending payments that the district court found it was duty-bound to make and thereby reward non-compliance with the district court’s decree. The district court ordered payment of funds due and owing for prior work that had gone unpaid after the district court’s initial entry of a declaration of illegality, funds that would seemingly be payable under the dissent’s prospective relief theory.

Perhaps it makes no sense as statutory policy to divide remedial capacity between the CFC and the district courts. District courts can hear money claims against the federal government, and their judgments, like those of the CFC, are routinely payable under a standing appropriation called the Judgment Fund; indeed, district courts hear Tucker Act claims for money up to $10,000. Removing that cap would empower broader retrospective relief in district courts and eliminate the need to toggle back and forth between courts to secure complete relief against the federal government. (This pathological toggling has a name: the Tucker Act shuffle.) But accepting Tucker Act limits, the order here ensured compliance with an equitable decree the district court had power to issue under the prospectivity regime that the dissent favored.

To be sure, in cases involving both the impoundment of funds and removal from office, money claims for backpay or breach of contract may be available. Whether to consign litigants to such remedies should depend on an equitable judgment about such familiar matters as the likelihood of success and irreparable harm. The district court here applied those familiar equity principles, ruling that the government had no legal justification for suspending payment and that the loss of current funding would cause harm. The Supreme Court majority’s refusal to grant a stay may have understood the district court’s decision in those terms, rather than as one that paid insufficient attention to the government’s sovereign immunity.