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Tuesday, April 30, 2019

Taking universality seriously (Updated)

One of the criticisms of universal/non-particularized injunctions is that they preempt percolation in lower courts, because the universal injunction by Court I short-circuits litigation in Court II, because Court I's injunction precludes the government from undertaking new enforcement efforts. Supporters of universal/non-particularized injunctions counter that the substantial amount of parallel litigation shows that percolation still occurs, as multiple parties bring multiple lawsuits in multiple courts. My reply has been that this shows courts are not serious about universality, in which case it would be better if each court kept its injunctions particularized and avoided the controversy over the scope.

Now comes this Ninth Circuit order in California v. HHS (involving repeal of the contraception mandate), in which the court requests briefing on whether the appeal of a particularized injunction has been rendered moot by a universal injunction issued by the Eastern District of Pennsylvania and how the mootness analysis is affected by the universal injunction coming from a trial court in another circuit.

Update: Sam Bray argues that the court should think of this in terms of "equitable mootness" rather than Article III mootness--equity may weigh against an injunction in the 9th Circuit case because the 9th Circuit plaintiffs are protected as non-parties to the EDPa universal injunction.

The correct answers should be as follows:

• The EDPa injunction makes this case unnecessary. There is no possibility that the government could enforce the revised mandate in a way that would violate the rights of the California plaintiff, because doing so would violate that universal injunction and could be halted with a motion to enforce the injunction in EDPa. So California or those on whose behalf it is suing no longer are having their rights violated and no longer face a reasonable prospect of having the law enforced against them, because doing so would subject the government to contempt of court.

• It does not matter that the injunction came from a district court. A district court injunction, unstayed, carries the same force and effect as an injunction affirmed by a court of appeals. District court decisions carry less force as precedent in affecting future cases; they do not carry less force as judgments, unless and until stayed or reversed on appeal.

• It does not matter that the injunction was issued from a court outside the Ninth Circuit. This is where the nomenclature matters. All injunctions are (and should be) "nationwide," in that they protect everywhere a protected person goes. A plaintiff protected against enforcement of some law is protected against enforcement wherever he is and the bound government is prohibited from enforcing wherever the target is. It follows that if a court has the power to protect non-parties (to issue a non-particularized or universal injunction), then it protects those non-parties everywhere. If EDPa had the power to issue an injunction prohibiting enforcement against all targets of the regulation, then that injunction protects them everywhere those targets may be.

• The argument against mootness is that the EDPa injunction might be reversed on appeal, which would revive the current case or force the California plaintiffs to come back to court for their own injunction if the EDPa injunction goes away. This creates the individualized litigation that proponents of universality want to avoid--the individualized litigation that I argue the system requires (outside of class actions). Courts could avoid the uncertainty if they would simply keep their injunctions to themselves--limit them to the parties before them, but protecting those parties everywhere they go.

Posted by Howard Wasserman on April 30, 2019 at 07:10 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Interesting issue indeed. But first, it is not so well understood :

Why mootness ? The controversy is not moot. On the contrary, it is yet living and kicking all around. It is not theoretical issue, which not need anymore effective remedy. What it is, is an issue of parallel jurisdiction and litigation. Correct, vertically paralleled one, yet, parallel.

First, one should verify, that the issue or remedy , really contradicts the lower / outside of the circuit court. If not, it can grant what is left as relevant yet, and doesn't contradict the lower / outside one.

If it does contradict, one may think of the relevant circuit, that can intervene, with higher temporary injunction, on the relevant district ( as if temporary on temporary ).

Finally, you observe again, over and over, parties, but not conduct. Federal agency conduct for example. If the conduct of the federal agency, is fundamentally flawed and illegal ( which is worse than unconstitutional typically ) how would it help to create additional litigation ? Must be stopped at once. If the president for example, is pardoning for state offense, while the constitution permits him only on federal offense to pardon, must be barred at once. Whenever,and wherever. And this is the problem:

The jurisprudence of the issue, insists on " public interest ". Public interest is too broad. Can justify almost everything. Only in those cases, where the conduct is so grave and illegal, that must be ended at once, and no more,then, such injunction is effective and just and relevant.Then no matter where, must be honored.


Posted by: El roam | Apr 30, 2019 8:40:10 AM

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