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09/12/2022

Judge Britt Grant on Nationwide Injunctions (with Comments from Samuel Bray)
Michael Ramsey

In Georgia v. President of the United States, recently decided by the Eleventh Circuit, Judge Britt Grant writing for the panel has some sharp analysis of the overuse of nationwide injunctions.  Part V begins:

After deciding that a preliminary injunction was appropriate, the district court enjoined the enforcement of the contractor vaccine mandate—against any contractor, anywhere in the United States, plaintiff or not. We are both weary and wary of this drastic form of relief. In their universal reach to plaintiffs and nonplaintiffs alike, nationwide injunctions push against the boundaries of judicial power, and very often impede the proper functioning of
our federal court system.

The constitutional backbone of the federal judiciary is our role in deciding cases and  controversies. U.S. Const. art. III, § 2, cl. 1; see also Gill v. Whitford, 138 S. Ct. 1916, 1933 (2018) (“constitutionally prescribed role” of the federal judiciary is “to vindicate the
individual rights of the people appearing before it”). In practice, fidelity to that role often limits the relief we can offer—while “federal courts possess broad discretion to fashion an equitable remedy,” that discretion is bounded by both historical practice and traditional remedial principles. Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs, 781 F.3d 1271, 1290 (11th Cir. 2015); see Grupo Mexicano de Desarrollo, S.A. v. All. Bond Fund, Inc.,
527 U.S. 308, 318–19 (1999). ...

And in conclusion:

This case shows both the difficulty and the importance of considering whether the courts can offer complete relief to the plaintiffs in federal regulatory challenges without issuing a nationwide injunction. Here, we can. So we must.

At Volokh Conspiracy, Samuel Bray (whose article is cited by Judge Grant) has thoughts: The Eleventh Circuit Reins in the National Injunction.  From the introduction:

The analysis in Judge Grant's opinion is incisive and thorough (and very well written). It moves from Article III to the traditional scope of equitable powers to circuit precedent, and back to the distributed decisionmaking that is characteristic of the federal courts. Most of these points will not surprise those who have been following the debate about national injunctions, but this is an excellent restatement of all the major concerns. There are also some new or distinctive points to highlight ...

Among his specific points:

First, this opinion expressly allows national injunctions in "appropriate" but "rare" cases. This express allowance is based on circuit precedent ("Consistent with these principles, we have said that a nationwide injunction may be issued 'in appropriate circumstances'" (citing circuit precedent)). But the devil is in the details. Some courts say something like that, and then give reasons for a national injunction that could be found in essentially every case, such as a need for uniformity or the equal application of the law (i.e., between parties and non-parties). But this opinion tightens the screws. None of the "factors" that might suggest a broader injunction require one, and in every case the district court must "wrestle" with how to give an injunction that is no broader than needed to address the injury to the parties. After this decision, the result may be that national injunctions are permissible in theory but not in fact.

Second, this opinion is unique in how it gives a wide set of illustrations of how Congress can depart from the norm of letting separate cases, like a thousand flowers, bloom. These illustrations undergird the court's conclusion that "nonuniformity is a deliberate feature of our federal court system, and Congress--not one of the 94 federal district courts or 12 regional circuit courts--is best positioned to choose when to depart from that norm."

In conclusion:

[A] decision like Georgia v. President of the United States offers a roadmap for how a circuit that has allowed national injunctions in the past can, without any reversal of its precedent, do its part to put the national injunction on a path to extinction.