Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, December 24, 2018

The Future of Nationwide Injunctions

Recently, the Ninth Circuit cautioned district court judges against using nationwide injunctions.  The case concerned administrative changes by the Trump administration to the ACA's contraception coverage.  Last year, a California District Court judge had enjoined the changes.  According to the National Law Journal, the Ninth Circuit narrowed the preliminary injunction, "to apply only in California, Delaware, Maryland, Virginia, and New York, states that were the plaintiffs in the underlying lawsuit."

The court's discussion of nationwide injunctions starts on p. 43 of the opinion.  The discussion of the court's concerns is quite informative:

     First, “nationwide injunctive relief may be inappropriate where a regulatory challenge involves important or difficult questions of law, which might benefit from development in different factual contexts and in multiple decisions by the various courts of appeals.”[citation omitted]. The Supreme Court has repeatedly emphasized that nationwide injunctions have detrimental consequences to the development of law and deprive appellate courts of a wider range of perspectives. [citations omitted].
   The detrimental consequences of a nationwide injunction are not limited to their effects on judicial decisionmaking. There are also the equities of non-parties who are deprived the right to litigate in other forums. See Zayn Siddique, Nationwide Injunctions, 117 COLUM. L. REV. 2095, 2125 (2017) (“A plaintiff may be correct that a particular agency action is unlawful or unduly burdensome, but remedying this harm with an overbroad injunction can cause serious harm to nonparties who had no opportunity to argue for more limited relief”). Short of intervening in a case, non-parties are essentially deprived of their ability to participate, and these collateral consequences are not minimal. Nationwide injunctions are also associated with forum shopping, which hinders the equitable administration of laws. See Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 HARV. L. REV. 417, 458-59 (2017) (citing five nationwide injunctions issued by Texas district courts in just over a year).
    These consequences are magnified where, as here, the district court stays any effort to prepare the case for trial pending the appeal of a nationwide preliminary injunction. We have repeatedly admonished district courts not to delay trial preparation to await an interim ruling on a preliminary injunction. [citations omitted]. “Because of the limited scope of our review of the law applied by the district court and because the fully developed factual record may be materially different from that initially before the district court, our disposition of appeals from most preliminary injunctions may provide little guidance as to the appropriate disposition on the merits.” [citation omitted]. The district court here failed to give any particular reason for the stay,8 and this case could have well proceeded to a disposition on the merits without the delay in processing the interlocutory appeal. "Given the purported urgency of" implementing the IFRs, the agencies and intervenors might “have been better served to pursue aggressively” its defense of the IFRs in the district court, “rather than apparently awaiting the outcome of this appeal.” Global Horizons, 510 F.3d at 1058.

I suspect that we will see the Supreme Court take up a nationwide injunction case in the not too distant future.  Perhaps even this one.

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