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Friday, December 14, 2018

9th Circuit taps the brakes (slightly) on universality

The ever-harrowed Ninth Circuit tapped the brakes slightly on district courts issuing universal injunctions. In affirming on the merits an injunction barring enforcement of religious opt-out rules from the contraception mandate in an action brought by five states, the court held that the district court abused its discretion in having the injunction extend beyond the plaintiffs.

The court hit a few important notes. It emphasized that universality is generally disfavored and especially disfavored absent class certification. It highlighted the problems with universal injunctions, including the loss of percolation of issues, the effects on non-plaintiffs, and the risks of forum shopping. And it applied the "complete relief" principle to conclude that a particularized injunction gives states complete relief from the economic harms the opt-out rule would impose on them. That other states may suffer similar harms did not affect the plaintiff states.

The court made clear that universal injunctions are not prohibited, but must be limited to cases in which broad relief is necessary. And it said the issue (as with an earlier case rejecting universality as to sanctuary cities) was a failure to develop the record as to other states, suggesting that building a better record may justify universality. 

But the court grappled with the scope question, a step back from recent hints from that court that universal injunctions were becoming the default, at least in certain cases.

Posted by Howard Wasserman on December 14, 2018 at 07:30 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


The court highlighted the problems with universal injunctions and emphasized that universality is generally disfavored and especially disfavored absent class certification.

Posted by: Sam | Dec 27, 2018 11:07:14 PM

What I haven't understood in many of these injunction cases is the lack of a bond. When there could be serious financial repercussions why aren't judges requiring bonds.

Posted by: Sam Tenenbaum | Dec 14, 2018 9:13:54 PM

Thanks for that interesting ruling indeed . Just worth to note , another discretion of the circuit here , while dismissing the nationwide injunction as such . And it is , the legal issue , when the latter , is yet not ripe and conclusive , and needs and can be elaborated and developed further .Here I quote ( and the court quoting in his turn ) here :

“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.” L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644,664 (9th Cir. 2011). 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. See Califano, 442 U.S. at 702 (highlighting that nationwide injunctions “have a detrimental effect by
foreclosing adjudication by a number of different courts and judges”);

End of quotation :

At the same time , not to forget , maybe it does fit , the current legal issue in that case indeed ( as not ripe yet ) but , in other cases it is absolutely warranted , when the legal and constitutional violation is so grave , that further litigation would badly hurt the rule of law .


Posted by: El roam | Dec 14, 2018 10:31:02 AM

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