The Supreme Court Needs to Clarify When District Court Injunctions Blocking Federal Policies Can Extend Beyond the Actual Plaintiffs in a Case

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There have been countless lawsuits filed over the last nine months—by states, cities, individuals, public interest groups, and others—challenging Trump administration actions and policies.  The statutory and constitutional issues raised vary; sometimes the core question involves the limits of executive authority vis-à-vis Congress; other times the primary allegation is that of an illicit discriminatory motive behind executive decisions; still other cases focus on the scope of state or local autonomy in the face of federal pressure.

Putting aside the complicated merits questions in virtually all of these cases, a common procedural/remedial question is how broadly the relief a lower court might issue to the plaintiffs—blocking executive action—can extend.  With increasing frequency, but often without extensive analysis, district courts are issuing so-called “nationwide” or global relief, preventing various federal defendants from enforcing policies not only against the named plaintiffs in the case at hand, but also against anyone else. One example is this week’s “nationwide” block—on the latest of President Trump’s executive orders relating to entry into the county—issued by the Hawaii federal district court judge who had already issued an earlier nationwide block on implementation of a prior executive order in the travel realm.  Another example is last week’s decision by a district court judge in Chicago to stick by his ruling from last month barring Attorney General Jeff Sessions from requiring not just Chicago—the plaintiff in the case—but any “sanctuary city” throughout the entire nation to cooperate with federal immigration officials as a condition of receiving federal funds for public safety.

Put simply, in these and other cases, lower federal courts are issuing orders that offer protection not just to the plaintiffs who brought the cases at hand, but to all similar parties, including parties located in areas where other federal courts might have different views on the permissibility of the federal policies in question.

The general appropriateness of these sweeping, nationwide (or in some instances global) orders is something the Supreme Court needs to take up explicitly, beyond the merits of any particular dispute. To be sure, when a federal district court has jurisdiction (that is, the power to speak the law) over a particular dispute and the defendants (including US government agencies) who are being sued, the court has authority to order the defendants to act or not act. This includes the authority to issue a directive that often has effects “outside the territorial jurisdiction of the court,” if for no other reason than because sometimes a plaintiff operates in more than one federal judicial district, and a court needs to be able to give a plaintiff full relief—not just local relief—from a defendant’s wrongful actions.

Moreover, there is general agreement that a court is not forbidden, even outside of a class action setting, from ordering relief that in effect goes beyond the named plaintiffs to also protect other would-be plaintiffs, if full relief cannot be given to the named plaintiffs without also necessarily regulating the defendants’ interactions with other persons. For example, in one case, a court was justified in ordering the police to stop enforcing a motorcycle helmet law overly aggressively as to all riders—and not just as to the named plaintiffs—because highway patrol officers would have no way of distinguishing plaintiffs from non-plaintiffs before pulling someone over. Another example:  If a school is ordered to desegregate its student body, then all students—and not just the named plaintiffs—will obtain the benefits of attending a desegregated institution.

But in most the settings these days in which district judges are giving nationwide or global relief, full relief could be given to named plaintiffs only, without ordering the defendants to refrain from enforcing contested policies against anyone else (let alone against everybody else).  And it is one thing to make sure that a plaintiff who sues gets full relief; it is another for the relief to extend beyond the parties in the case at hand.

The Problems With District Courts Extending Relief Beyond the Parties

What could be wrong about protecting other persons who themselves did not sue? After all, it may seem that if the federal government is acting wrongly, a court should tell it to stop acting wrongly against everyone in America (or the world), not just the parties who happened to sue. But this gut reaction fails to account of the very important fact that not all judges will necessarily agree over whether the federal government is acting wrongly.  And there are problems when one district judge attempts (in the absence of  certified class action where there are complex procedures in place to make sure that all absent parties are properly represented and that the federal government is on clear notice, when it chooses how aggressively to contest a case, about precisely how broad the remedy would be) to decide an issue for the whole country.

One problem with district courts making such grand, sweeping legal rulings is that such a role doesn’t align with their institutional strengths.  District court judges have much less time and fewer resources than appellate courts, and the primary functions of district court judges are to manage litigation, evaluate evidence and make factual determination (sometimes very important factual determinations), apply settled law and also take an intelligent stab at novel legal matters to as to carefully frame or “tee up” those questions for the Court of Appeals and (in some cases) the Supreme Court.  Indeed, resolving matters once and for all for the whole nation is a power we invest principally in the Supreme Court, and not any lower courts.

It is for that reason that conventional doctrine often says something like: “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the [actual] plaintiffs.” Related to this is the traditional admonition that when exercising its equitable powers to issue an injunction, a court must be “mindful of any effect its decision might have outside its jurisdiction [insofar as c]ourts ordinarily should not award injunctive relief that would cause substantial interference with another court’s sovereignty.” A leading casebook puts things this way: “a [federal district] court can enjoin [a] defendant only with respect to the defendant’s treatment of plaintiffs actually before the court, either individually or as part of a certified class.

A contrary approach would, in the words of one Supreme Court case, “substantially thwart the development of important questions of law by freezing the first final decision rendered on a particular legal issue.” And if and when the issue makes its way to the Supreme Court, overly broad district court (or circuit court) injunctions that prevent other courts from hearing cases and weighing in can “deprive the Supreme Court of the benefit of decisions from several courts of appeals,” a diversity of viewpoint the Court uses to decide the best nationwide outcomes. (This process is sometimes referred to as lower court “percolation.”)

Thus, especially (though not only) when another court has already issued a contrary pronouncement on the same question, issuing a nationwide injunction causes substantial interference with the power of other courts, and with the process of helping refine issues that might ultimately be taken up by the Supreme Court.

(Over)broad Injunctions Cut Both Ways on the Political Spectrum

A related problem is that nationwide injunctions under such circumstances also encourage what lawyers call “forum shopping”—that is, picking a particular place to sue not because of the convenience of the parties or the location of the witnesses or evidence (which are legitimate factors for choosing a particular venue), but because of a predicted outcome.

To be fair to district court judges, the Supreme Court has not clearly and definitively laid out precisely when a district court injunction can extend beyond the named plaintiffs outside the context of a certified class action.  This absence of clear guidance from the Supreme Court (especially given the discretion that normally exists with regard to equitable relief like injunctions) in part explains the many ambitious decisions by district court judges over the last decade to provide nationwide (or global) relief.

Indeed, such broad injunctions were increasingly common even before President Trump was elected and his policies began to be litigated in district courts.  And judges used such ambitious injunctions to promote both conservative and liberal legal results.  On the conservative side, consider a ruling about a year ago in which a Texas federal district court issued a nationwide injunction blocking the Obama administration from implementing a controversial interpretation of Title IX, a federal statute banning sex discrimination in schools.

On the liberal side, consider an instance in which a few same-sex couples sued California officials several years ago to obtain marriage licenses even though state law in effect at the time, California Proposition 8, limited marriage in California to a union between a man and a woman. The district court judge issued what on its face appeared to be a statewide ban on California officials applying Proposition 8 to any same-sex couples, not just the plaintiffs before him. After that ruling came down, I suggested (relying on the legal principles discussed above) that, absent class action certification (which might have been plausible but which wasn’t sought), the district court’s remedy should have been limited to the plaintiffs in the case.

Nor are the district judges in some of these cases even spending much time carefully thinking about how broadly their injunctive relief ought to be permitted to extend.  In the 38-page ruling in the Texas Title IX case mentioned above, the district court discussed the propriety of nationwide relief in just a sentence or two, and cited only one case—a Supreme Court case in which nationwide relief was upheld, but where there was a class action that had been certified in which the plaintiff class was itself nationwide, and where the lower courts had been careful not to allow their injunctions to affect other pending or likely litigations.

And in the recent Chicago case involving sanctuary cities, the court’s decision to apply the injunction nationwide was based primarily on the fact that the Supreme Court has recently failed to dissolve a nationwide injunction when it had a chance, and on the fact that “[a]n injunction more restricted in scope would leave the Attorney General free to continue enforcing . . . likely invalid conditions.”  As to the former, the Supreme Court did not affirmatively uphold the nationwide injunction, but simply did not take the extraordinary step of dissolving it prior to a full consideration of the case on the merits.  As to the latter, the obvious counterpoint is the possibility (described above) that other courts may not end up agreeing with the judge that the conditions are probably invalid.

I mention this variety of settings and relative dearth of analysis because procedural rules like the breadth of injunctive relief are supposed to be trans-substantive, and when they seem result-oriented (as they sometimes do given the cursory analyses offered by district court, again because they are very time constrained), cynicism about the judicial system is the result.

I don’t really blame the district court judges; the Supreme Court is the body that must address this problem and the cynicism it generates.  Again, the Court has not spoken completely clearly, and that has opened the door to some debatable district court actions.  If the Court wants to move away from the traditional approach and permit more nationwide injunctions against the federal government even in the absence of class certification, it should do so explicitly.  And if it wants to adhere to the conventional approach that most analysts see implicit in past Supreme Court rulings, it should elevate that approach to the level of clear, binding doctrine.

There likely will be cases on the Court’s docket in the next few Terms in which it can address the problem I describe here.  (For instance, in one of the cases from Hawaii dealing with one of the earlier executive orders on international travel, one of the questions presented is the propriety of global relief.  But that case hasn’t been set for argument, and given the fluidity of executive actions and orders in this area, it is not clear when and in what form that dispute will be heard by the Court.)  I very much hope the Court uses an appropriate case to make clear what the rules—and the areas of discretion—are here.

  • pmbalele

    Professor Vikram David Amar write-up reminds me about the role of federal courts and appeals court and how people perceive them. I have been critical of district courts and 7th of Appeal court for almost three years now. For instance there seem judges at the 7th circuit are impatient with complainants or appellants compared to respondents who are usually employers or government institutions. The 7th Circuit judges usually bar prisoners who file so called frivolous lawsuits and appeal. While bothersome to review cases from the same prisoner, judges at the 7th circuit should be patient with frequent whiners. Prisoners should be allowed access to court. I do not know the position of the Supreme Court on frequent complainers. The second issue is that 7th Circuit judges tend to invent their own doctrines. For instance, they used this word “mosaic” of evidence to prove discrimination. District judges bought this theory. So district judges were dismissing cases whenever they did not find a mosaic of evidence. But “mosaic” approach was rejected by Abercrombie. After Abercrombie the 7th Circuit judges stopped “mosaic”. But district court judges had already bought that theory. Now the same 7th circuit judges are telling district court judges to abandon “mosaic” doctrine. Another one is “what would jury decide.” For almost two years now 7th Circuit court judges have invented the “what would reasonable jury believe” doctrine in resolving cases under the summary judgment procedure. I am saying that by using the “reasonable jury doctrine, these judges are actually injecting their beliefs into whether as case is for or against a party. Summary judgment on the other hand should be based on production of evidence. If you fail to counter opposing party’s produced evidence, you should fail under the summary judgment procedure. For instance, a party produces affidavit that top agency head hates mingling with Blacks at work as reason why a Black person was not hired. An opposing party has to come up with affidavit or documents that counters that assertion. For example opposing party may produce affidavit that the position in question never interacts with the agency head. That counters assertion that agency secretary does not want to mix with Blacks for the job does not interact with the agency secretary. But these judges at 7th Circuit would then evaluate which affidavits should be believed. That is wrong; they should leave that to juries of at the hearing. As a whole the 7th circuit judges have been confusing district court judges. That is why most federal district judges, because of the confusions, simply dismiss cases and leave the know-it-all judges at the 7th circuit decide cases. There are many other doctrines the 7th Circuit judges have invented without node from the Supreme Court. What I am asking is that 7th circuit judges should stop inventing these doctrines. Let the US Supreme Court introduce the doctrines first for all of us to follow.

  • dwight sanders

    Federal Reviewer information can be set more in a form of working Together!