Bench Memos

Law & the Courts

Ninth Circuit Judge Ryan Nelson on Limiting Nationwide Injunctions

I called attention last month to the Ninth Circuit’s divided panel ruling in Ramos v. Wolf, in which the majority ruled in favor of the Department of Homeland Security’s termination of the Temporary Protected Status (TPS) designation of four countries: Sudan, Nicaragua, Haiti, and El Salvador.

Judge Ryan Nelson, who joined Judge Consuelo Callahan’s majority opinion, also wrote a noteworthy concurring opinion (pp. 54-67) “to address two additional errors by the district court, both implicating separation-of-powers concerns: the scope of the administrative record in cases challenging agency action and the advent of the so-called ‘nationwide’ or ‘universal’ injunction.” Here are some excerpts on the universal injunction (citations omitted):

The judiciary, for its part, now regularly issues rulings that govern parties not directly before the court, in disregard of usual constraints on judicial power. In doing so, it can halt an entire executive policy or Congressional mandate with one stroke of the judicial pen, without Congressional authority to do so.

And the executive and legislative branches, for their part, can do little about it. Generally, the government can take advantage of the “non-acquiescence doctrine, under which [it] may . . . relitigate issues in multiple circuits.” Now, however, the government must halt enforcement of its objectives and policies even if it bats .999 in court. If one out of 100 district court judges is willing to declare a statute, rule, or regulation invalid and enjoin its enforcement, the other nine—or even 99—at bats before the judiciary have no effect. This scenario, of course, forces the government to repeatedly seek urgent review before the Supreme Court, resulting in an oft-repeated “familiar pattern.”

The effect of all of this is that there is no time for issues to percolate among the circuits before Supreme Court review.… This lack of percolation has serious consequences for judicial decisionmaking. And it breeds another, more serious problem—that of “forum shopping.” When one judge can halt the implementation of a policy nationwide, the natural inclination is to “shop ‘til the statute, [regulation, or executive order] drops.” This type of litigation conduct, in turn, undermines public confidence in the judiciary and “hinders the equitable administration of laws.” …

Our caselaw repeatedly recognizes that universal injunctions are warranted only in “exceptional cases.” Yet many district courts have done just the opposite, “treat[ing] this exceptional mechanism as a new normal,” granting—and affirming—universal injunctions “reflexively.” This reflexive reaction should be eliminated by recognizing the requirement that universal relief is warranted only when “necessary to give Plaintiffs a full expression of their rights.”

To do so, we must first abandon factors that have nothing to do with that requirement. For example, our cases frequently cite a need for uniformity in the law as a reason to uphold a universal injunction. But disuniformity in the law has nothing to do with the plaintiff’s rights…. Another common justification for universal injunctions in these types of cases—that APA claims can lead to universal vacatur of a rule or action if they are arbitrary or capricious,—also has nothing to do with the scope of relief “necessary to give Plaintiffs a full expression of their rights.” … Once these erroneous justifications are stripped out, universal injunctions should become much rarer.

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