National injunctions and equitable mootness

The Ninth Circuit orders briefing on whether one national injunction moots another

|The Volokh Conspiracy |

As Howard Wasserman notes, in an intriguing post at PrawfsBlawg, a panel of the Ninth Circuit has ordered briefing on whether one national injunction renders the appeal of another one moot. It's remarkable that this is a novel question—it's another reminder of how recent the widespread use of national injunctions really is.

The one point I want to add right now to Howard's post is about the distinction between Article III mootness and what is sometimes called "equitable mootness." This doctrine is discussed in my article The System of Equitable Remedies.

I list a number of doctrines and habits associated with equitable remedies, including: "A claim for equitable relief is subject to a stricter ripeness requirement" (545). "Equitable ripeness," I note, "is required only for equitable ripeness" (549). The supporting footnote is as follows:

The equitable ripeness doctrine tends to be stated more crisply in the secondary sources. See Samuel L. Bray, The Myth of the Mild Declaratory Judgment, 63 DUKE L.J. 1091, 1133-37, 1140-43 (2014); Laura E. Little, It's About Time: Unravelling Standing and Equitable Ripeness, 41 BUFF. L. REV. 933, 977-80 (1993); Gene R. Shreve, Federal Injunctions and the Public Interest, 51 GEO. WASH. L. REV. 382, 390-92 (1983). But see LAYCOCK, supra note 38, at 585-86. Even so, the case law also shows a greater concern about ripeness and other justiciability doctrines when courts are asked to give equitable remedies. See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 103, 105, 109, 111-13 (1983) (treating equitable requirements as more strict than the general case-or-controversy requirement); O'Shea v. Littleton, 414 U.S. 488, 499 (1974) (same); United States v. Regenerative Scis., LLC, 741 F.3d 1314, 1325 (D.C. Cir. 2014) (requiring for injunction "a reasonable likelihood of further violations in the future"); Hodgers-Durgin v. De la Vina, 199 F.3d 1037, 1042 & n.3 (9th Cir. 1999) (en banc) (W. Fletcher, J.) (concluding that although plaintiff class may have had Article III standing, they failed to show the "likelihood of substantial and immediate irreparable injury" required for equitable relief); Beck v. Test Masters Educ. Servs. Inc., 994 F. Supp. 2d 98, 101 (D.D.C. 2014) ("The claimed injury must be both certain and great and of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.") (emphasis in original); LJL 33rd St. Assocs., LLC v. Pitcairn Props., Inc., No. 13 CIV. 5673 (JSR), 2013 WL 5969139, at *1 (S.D.N.Y. Oct. 24, 2013) (holding that declaratory judgment claim was ripe though specific performance claim was not); Town of Monroe v. Renz, 698 A.2d 328, 333 (Conn. App. Ct. 1997) ("The extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted."); Howe v. Greenleaf, 320 P.3d 641, 652 (Or. Ct. App. 2014) (requiring for injunction that "the conduct to be enjoined is probable or threatened") (alterations and citation omitted); 67A N.Y. JUR. § 167 (2d ed. 2000) (requiring for injunction a "violation of a right presently occurring, or threatened and imminent"). It is harder to distinguish ripeness and equitable ripeness for equitable restitutionary remedies, but there, too, the courts seem wary of speculative claims. See Bank of Am. v. Bank of Salem, 48 So. 3d 155, 158 (Fla. Dist. Ct. App. 2010) ("[A]llegations, which pertained only to promises of future conduct, are insufficient evidence of fraud to warrant a constructive trust."); Nw. Props. Brokers Network, Inc. v. Early Dawn Estates Homeowner's Ass'n, 295 P.3d 314, 325 n.7 (Wash. Ct. App. 2013) (rejecting unjust-enrichment counterclaim as unripe).

Later in the article, when discussing the constraints on equitable remedies, I have this passage (578-579, some footnotes omitted):

Given the greater cost and greater potential for abuse, the equitable remedies and equitable enforcement mechanisms need limits. These limits, even if not sharply defined, give a sense of shape to a plaintiff's expectation of equitable relief. These "equitable constraints" are crucial to understanding equity:

  1. Equitable Ripeness. There is a requirement of additional factual development for equitable remedies, which is represented by the equitable ripeness doctrine. There is obvious overlap here with constitutional doctrines of ripeness and standing, as well as abstention doctrines. The relationship between the constitutional doctrines and their equitable counterparts cannot be untangled here. It suffices to say that they overlap, and yet that a court may invoke equitable ripeness as an independent reason not to give equitable relief.251 Indeed, cases about constitutional standing, ripeness, or abstention often emphasize the plaintiff's request for equitable relief, and many of those cases have suggested that these doctrines apply differently depending on whether legal or equitable relief is sought.252 Nor is this concern misplaced. Ripeness is especially important for equitable remedies because they can depend on facts that are changing and contingent, and can entangle the courts in the relationship of the parties, not just at the moment of decision but (at least potentially) on a continuing basis. Not only ripeness, but other justiciability doctrines, such as mootness, are also sometimes said to be more exacting for claims for equitable remedies.254

Among the supporting footnotes are the following:

251      For analysis related to the injunction and declaratory judgment, see Bray, supra note 85. The courts' more exacting review of the ripeness of equitable claims may take place under other doctrinal headings, such as irreparable injury, equitable discretion, and lack of propensity. E.g., In re DDAVP Indirect Purchaser Antitrust Litig., 903 F. Supp. 2d 198, 209-11 (S.D.N.Y. 2012) (finding a failure to state a claim for injunctive relief).

252      See Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996); City of Los Angeles v. Lyons, 461 U.S. 95, 111-13 (1983); O'Shea v. Littleton, 414 U.S. 488, 499 (1974); Younger v. Harris, 401 U.S. 37 (1971); Burford v. Sun Oil Co., 319 U.S. 315 (1943); R.R. Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 500-01 (1941). For discussion, see Anthony J. Bellia Jr., Article III and the Cause of Action, 89 IOWA L. REV. 777, 827, 827 n.216 (2004) (standing); Bray, supra note 85, at 1146 n.247 (ripeness); Louis Henkin, Is There a "Political Question" Doctrine?, 85 YALE L.J. 597, 617-22 (1976) (political question); see also Lochlan F. Shelfer, Note, Special Juries in the Supreme Court, 123 YALE L.J. 208, 234 (2013) ("Because the overwhelming majority of cases in the Supreme Court's original jurisdiction sound in equity, the Court often refuses petitions on the equitable basis of alternative fora.") (footnote omitted). For more skeptical views, see Martha A. Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U. PA. L. REV. 1071, 1138-43, 1139 n.177 (1974); Laycock, supra note 2, at 75; Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 YALE L.J. 71, 84-90 (1984).

254      See FTC v. Accusearch Inc., 570 F.3d 1187, 1201 (10th Cir. 2009) ("When, as in this case, a defendant has ceased offending conduct, the party seeking injunctive relief must demonstrate to the court 'that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive."') (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953)); Getty Images, Inc. v. Microsoft Corp., 61 F. Supp. 3d 296, 300 (S.D.N.Y. 2014) ("[T]he standard for establishing the need for injunctive relief is more stringent than the mootness standard."); see also Pires v. Bowery Presents, LLC, 988 N.Y.S.2d 467, 472 (N.Y. Sup. Ct. 2014).

Finally, when discussing how different equitable rules, habits, and maxims help judges avoid the problems inherent in equitable remedies, I have this passage (584-585, footnotes omitted):

None of these equitable constraints is rigid . None is airtight. All are discretionary, and the discretion to invoke them is committed to the very judge they are intended to constrain—the judge deciding in the first instance whether to give an equitable remedy. This may cause some to deny that they are actually constraints. Surely they would not work for a judge who was intent on abuse of power. But not all constraints are fetters. These equitable constraints guide the responsible exercise of judicial power, both at the trial and appellate levels, by focusing a judge's attention on certain situations where equitable remedies and enforcement mechanisms are most likely to be misused.

For example, one scenario in which judges are more likely to misuse their equitable powers is when they act with insufficient information, not just for generic reasons that might apply to every claim, but for reasons specific to equitable remedies. The commands inherent in equitable remedies are more likely to be factually involved and contingent because they need to be designed not only for present circumstances but also for future ones. The attention of judges is directed to this concern about factual development by the doctrine of equitable ripeness.

NEXT: The Feds Have Been Warehousing Wild Horses in Efforts to Preserve Them

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  1. The issue here seems very straightforward. If another court in another case has already granted the relief a plaintiff is asking for, there’s nothing left for the plaintiff to ask, so there’s no live case or controversy. It’a that simple. For there to be Article III standing, the plaintiff needs a favorable court decision to be made whole. If someone else has already jumped the gun and made the plaintiff whole, there’s no standing and there’s nothing for an Article III court to do.

    Introducing complex doctrines like equitable estoppel would seem only to complicate what ought to be a very simple issue.

    If the other injunction is later overturned or narrowed to exclude the plaintiff, or the plaintiff is asking for something substantial not covered by the other injunction, standing remains.

  2. The problem is nationwide injunctions. A court sitting in Pennsylvania should not be adjudicating the rights of an individual sitting in California.

    If we’re going to tolerate nationwide injunctions, then I don’t see the need to complicate the issue. The California plaintiff has received the relief he asked for. The issue is moot.

    A more jaded individual might argue that the Ninth Circuit is upset that the Federal government may not need to ask the Ninth Circuit for permission to govern the rest of the country. Such an individual would argue that the Ninth Circuit finds this to be the true offense.

    1. The problem of nationwide injunctions has absolutely nothing to do with place / geography.

      1. Nationwide injunctions are only ever issued against the federal government. Why should the rights vs the federal government be different for someone in CA than for someone in PA.

      2. If a plaintiff in PA wins a lawsuit against the federal government in PA which includes a permanent injunction in the judgement. Should that plaintiff be forced to re-litigate the issue from scratch if he moves to CA?

      No, the difference between a regular injunction and a nation wide injunction has squat to do with geography, it has to do with the regular injunction binds the federal government only with respect to the non-federal-government parties to the case and a nationwide injunction purports to bind the federal government with respect to the entire population of the nation.

  3. The Supreme Court needs to end this madness.

    No lower court has the power to enjoin things outside of their geographic area.

    1. Not true. The lower courts have with a regular injunction the power to enjoin party A with respect to Party B. And while generally at least one of the parties has to reside in the geographic territory of the court in question, the injunction itself is not restricted by geography. If either party later moves beyond the geographic territory of the court, the injunction still remains in force, it does not become void.

    2. “No lower court has the power to enjoin things outside of their geographic area.”

      That assertion seems intensely unreliable. Perhaps the author is not a lawyer.

  4. I am vague on a detail here: is it the norm for circuit decisions to only have a loose hold on other circuits, or do decisions generally hold in lock-step across the country? It appears that we are potentially in the process of a shift from the former to the latter. And I do hope this is not the case, for I fear for the independence of the circuits.

    1. Loose hold would be the norm, for the geographically defined circuits. Each circuit may consider a decision from another circuit for it’s persuasive value, but a decision from one circuit is in no way binding on another circuit.

  5. This is the other problem with the universal injunction.

    Coalition Abby and Bob, both members of the coalition, sue in different circuits, and both win universal injunctions through a clear misreading of the law.

    On appeal, Abby’s circuit says, “well federal government, while we agree you win, and it’s even a frivolous case, we don’t have jurisdiction because we’re incapable of curing your injury – if we were to strike this injunction you’d still be in exactly the same place you are now, so we decline to hear the appeal.”

    In Bobs circuit, they say the same thing.

    So all you have to do is go judge-shopping enough, in different circuits, to get ruling that can’t be appealed (Supreme Court notwithstanding). That’s seems to be (perhaps unintentionally) what’s happening here.

    1. That’s true. But it’s a problem with universal injunctions, not with standing requirements. The standing requirements here are analytically separate.

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