Nationwide injunctions against government action, once unusual, have become common in recent years, and they are increasingly controversial. Several other rules combine with nationwide injunctions to make them particularly noxious. First, the rules on venue in suits against the government are quite lax. One can file a suit nearly anywhere. Second, broad "related case" rules sometimes allow evasion of the requirement for random assignment of judges, sometimes allowing plaintiffs to steer a suit to a particular judge, not just a particular court. Third, there is the "heads I win, tails we take it over" effect. If 99 district courts deny preliminary injunctions and 1 grants a nationwide injunction, the 1 has effectively overruled the 99. With all this, plaintiffs can gain a temporary nationwide victory even if their legal position is well outside the mainstream. Given how long litigation takes, a "preliminary" injunction may be the whole ball game in reality. As John Maynard Keynes famously said, "In the long run we are all dead."
In a suit against an immigration regulation on asylum eligibility and procedure, a divided panel of the Ninth Circuit has denied the government's motion for a stay as it applies to the Ninth Circuit but granted it as to the rest of the country.
An injunction must be "narrowly tailored to remedy the specific harm shown." Id. at 1244 (quoting Bresgal v. Brock, 843 F.2d 1163, 1170 (9th Cir. 1987)). We have upheld nationwide injunctions where such breadth was necessary to remedy a plaintiff's harm. See, e.g., id.; California v. Azar, 911 F.3d 558, 582 (9th Cir. 2018) ("Although there is no bar against nationwide relief in federal district court . . . such broad relief must be necessary to give prevailing parties the relief to which they are entitled." (internal quotation marks and alterations omitted) (quoting Bresgal, 843 F.2d at 1170-71)). These are, however, "exceptional cases." Trump, 897 F.3d at 1244. To permit such broad injunctions as a general rule, without an articulated connection to a plaintiff's particular harm, would unnecessarily "stymie novel legal challenges and robust debate" arising in different judicial districts. Id.; see also Azar, 911 F.3d at 583 ("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.").Here, the district court failed to discuss whether a nationwide injunction is necessary to remedy Plaintiffs' alleged harm. Instead, in conclusory fashion, the district court stated that nationwide relief is warranted simply because district courts have the authority to impose such relief in some cases and because such relief has been applied in the immigration context. The district court clearly erred by failing to consider whether nationwide relief is necessary to remedy Plaintiffs' alleged harms. And, based on the limited record before us, we do not believe a nationwide injunction is justified.Our dissenting colleague believes that a nationwide injunction is appropriate simply because this case presents a rule that applies nationwide. That view, however, ignores our well-established rule that injunctive relief "must be tailored to remedy the specific harm alleged." Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991) (citations omitted). Indeed, were we to adopt the dissent's view, a nationwide injunction would result any time an enjoined action has potential nationwide effects. Such an approach would turn broad injunctions into the rule rather than the exception. Under our case law, however, all injunctions--even ones involving national policies--must be "narrowly tailored to remedy the specific harm shown." Trump, 897 F.3d at 1244 (quoting Bresgal, 843 F.2d at 1170).
That is all true, but if the district court erred in granting an injunction outside its jurisdiction, why is the stay limited to territory outside the Ninth Circuit? Why isn't the injunction stayed everywhere outside the Northern District of California?
Circuit Judges Milan Smith and Mark Bennett concur in the order, while Senior Circuit Judge A. Wallace Tashima dissents from the extraterritorial stay portion. Place your bets on en banc review.
The case is East Bay Sanctuary Covenant v. Barr, No. 19-16487.
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