Can Judges Coordinate Parallel Litigation?

And would judges have to notify the parties about this coordination?


Professor Bert Huang published a new article in the Texas Law Review, title Coordinating Injunctions. He proposes a solution to the problem of federal judges issuing conflicting injunctions:

When faced with a possible clash of injunctions, each district judge should issue or stay her intended relief in accordance with the real-world outcome she thinks the majority of district judges would choose. Following such a shared convention, judges with diverse views will have a better chance of avoiding a clash because their estimates of the majority view are probably more similar than their individual views. And a stay would not signify abandoning a judge's own views (which are still fully aired in her written opinion) but would instead reflect an awareness that other judges' views may differ—akin to the existing practice of a stay pending appeal

I wrote about this issue in the context of the DACA litigation: what would have happened if two federal judges issued contradictory injunctions against the federal government. Fortunately, we did not see dueling cosmic injunctions.

Here, I raise a related issue: is it proper for federal judges in district courts to coordinate parallel litigation? I'll use a familiar example. In early 2017, plaintiffs in three federal courts filed suits based on the Constitution's Foreign Emoluments Clause. The parties were different, and they presented different theories of standing. But the merits questions were very similar. Indeed, two of the three cases had overlapping counsel.

Would it have been proper for the three district judges to coordinate the litigation--especially given that these complaints presented questions of first impression. Let's assume that the judges had such a conference, and they agreed on a single resolution of what the phrase "emolument" means in the Foreign Emoluments Clause. Could the troika have agreed to let one judge write a precedential opinion first, which the others two judge would subsequently rely on as persuasive precedent. This approach would save judicial resources. If all three judges agree on a merits question, why should each of them reinvent the wheel? But is this method fair to the parties? If the judges wanted to pursue this option, would they have to provide notice to the parties? Could the parties object to this coordination? These communications are not, strictly speaking, ex parte communications. And I'm certain that judges routinely talk to each other about routine matters. (Think of Baby Judges School). But does the analysis change for a merits analysis?

I don't have strong thoughts here. I welcome emails, especially from judges, who have given this issue some thought. I'll be happy to write a follow-up post with responses from judges, without attribution.

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  1. As a non-lawyer, it would seem to me that if a judge could hash out an issue with a law-clerk, there would be no problem with doing the same with another federal judge. At least the latter was appointed and then confirmed by the Senate.

  2. If one judge is going to write the opinion on a particular issue then shouldn't all the litigants on each side have the right to argue in front of that particular judge?

  3. Simpler to give the DC district court exclusive jurisdiction over cases seeking injunctions against executive actions. All three cases would be assigned to the same judge. Appeals to the same circuit court.

    Side benefit is the elimination of forum shopping. Cannot seek friendly circuits.

    1. No forum shopping but an absolute explosion of cases in the circuit requiring dozens probably over 100 new judges in the circuit (district and circuit courts combined), and litigation moving slower than a sloth stuck in a tar pit.

    2. That would probably be too much of a burden for one Court. What if the Judicial Panel on Multidistrict Litigation had the power to randomly assign the case to any District Court judge and you were stuck with whatever circuit that ended up in? That would stop Republicans from using the 5th or 8th Circuit when trying to stop Democrats and the Democrats from using the 9th Circuit to stop Republicans as you will have no clue where your litigation will end up.

    3. I would point to the mess giving the Federal Circuit exclusive jurisdiction over patent appeals has caused. That Circuit has been captured by the Patent Bar to the extent that Patent Lawyers openly call for the Circuit to ignore the Supreme Court because the Supremes obviously don't understand patents and the Circuit has been reluctant to embrace some Supreme Court direction.

  4. The solution is simply to require courts to act within the actual bounds of their jurisdiction under Article III. Federal courts only have the power to adjudicate the specific dispute at issue between the actual parties to a lawsuit. Nationwide preliminary injunctions arising out of cases not yet certified as classes are ultra vires and should be declared void except as to the actual parties to the suit. Where a class is actually certified, parallel litigation can be stayed or dismissed as duplicative.

    Injunctions issued pursuant to judgments are a different story. A judgment against the United States is likely res judicata and grounds for a preliminary junction brought by a different party, in the unlikely event the government would contravene the first judgment.

    1. Pretty sure res judicata only applies to parties as well.

      Nationwide injunctions to me are a problem not because of party based jurisdiction, but geographic jurisdiction.

      Part of the issue is whether a remedy must be the absolute minimum to address the grievance. I don't know that that has ever been mandated. Courts usually do so for prudential reasons, but I'm not aware of any mandate to that effect. An injunction against the government from acting to more than just the parties is definitely more than necessary but it does remedy the grievance brought by the party. So I don't know that it is ultra vires, just maybe not ideal. But when you extend that outside of your geographic region you have inflicted it beyond your jurisdiction.

      1. For your information, the Supreme Court has roundly rejected prior restraint...

      2. "Nationwide injunctions to me are a problem not because of party based jurisdiction, but geographic jurisdiction."

        Bob lives in Michigan.
        Bob gets into financial trouble and files for bankruptcy protection.
        One debt collector continues to harass Bob.
        Bob sues in federal court in Michigan and wins a permanent injunction baring that debt collector from every contacting him again.
        Bob moves to Texas for employment.

        Is the original injunction now void? Is the debt collector no free to resume harassing Bob? Where is the justice in forcing Bob to re-litigate this issue just because he moved?

  5. There is already a mechanism to consolidate similar cases across district lines. Why not use that?

    As far as judges coordinating their decisions that sounds uncomfortably like a Star Chamber. Judges meeting behind closed doors to decide cases or at least remedies. It also deprives the higher courts of a variety of opinions from which to consider the proper resolution.

    It seems to me that recently we have seen a rise in the arrogance of some judges who take upon themselves to not only resolve the case before them but to remedy the ills of the country. There are 435 elected Representatives, 100 elected Senators one President and one Vice-President but there are 667 Federal District Judges, 176 Federal Appeals Judges and 9 Supreme Court Justices. The Appellate Judges don't usually act alone, the Supreme Court also seldom acts on the basis of a single Justice, but District Judges often take it upon themselves to act for the entire Judiciary.

    1. 677 Federal Judges

    2. 28 USC 1407 (multi-district litigation). Not a bad idea, although the JPML's pace may not be well suited to fast-moving requests for preliminary injunctions.

  6. Well-trod ground for the bankruptcy bench and bar.

    When a multinational company becomes insolvent, it's common for parallel insolvency proceedings to take place in multiple jurisdictions and the judges sometimes communicate with each other (although ex parte communications are generally disfavored). Several U.S. bankruptcy courts have adopted standard cross-border cooperation protocols. The pinnacle of cross-border judicial cooperation might have been the joint trial that Judges Gross (Delaware) and Newbould (Ontario) conducted in the Nortel case in 2014.

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