In an opinion issued today in East Bay Sanctuary Covenant v. Barr, a Ninth Circuit panel ruled unanimously that plaintiffs—nonprofit organizations that represent asylum seekers—were entitled to injunctive relief against a rule jointly issued by the Department of Justice and the Department of Homeland Security. Under that rule, aliens who did not previously seek asylum in a third country through which they traveled on their way to the United States are generally barred from receiving asylum in the United States.

The panel members divided sharply, however, on the scope of injunctive relief to which the plaintiff organizations were entitled.

Judge William A. Fletcher opined that the harm that the plaintiff organizations suffered—namely, having to “overhaul their programs and pursue more complex and time-and-resource intensive forms of relief” for asylum seekers—was not limited to the Ninth Circuit, as the organizations also “suffer[ed] from their inability to represent, and to protect, aliens seeking to enter the United States through Texas or New Mexico.” For this and other reasons, he concluded that the district court’s injunction properly covered “the four states along our border with Mexico.”

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Judge Richard R. Clifton, who concurred in the remainder of Fletcher’s opinion, wrote separately to state that he concurred only in Fletcher’s conclusion regarding the scope of the injunction. Circuit precedent in his view supported that conclusion, but he did not want to be misunderstood as “express[ing] agreement with or affirmative support for the reasoning behind the relevant portions” of those circuit precedents.

Judge Eric D. Miller dissented on the scope of the injunction. (See pp. 61-66.) He observed that “the injunction is broad not only in a geographic sense but also because it applies universally to everyone affected by the rule, not just to the plaintiffs in this case.” Universal injunctions “sidestep[]” rules that limit granting class-wide relief, and they conflict with the principle that—here he quotes Supreme Court precedent—“injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Further, the plaintiff organizations do not have third-party standing to assert the rights of potential future clients. Miller would therefore “restrict the injunction along the lines suggested by the government, so that it prohibits the application of the rule only to asylum seekers who are bona fide clients of the plaintiff organizations.”

Despite the plaintiffs’ victory in the Ninth Circuit, the district court’s injunction will not go into effect. Last September, the Supreme Court entered an order blocking it not only for the pendency of the Ninth Circuit appeal but pending disposition of any petition by the government for a writ of certiorari.

For those keeping score at home: Fletcher was appointed by Bill Clinton, Clifton by George W. Bush, and Miller by Donald Trump.