Nationwide injunction from elsewhere needn’t moot matter before 9th Circuit, panel holds

Preliminary injunctions issued by one court that purport to protect parties nationwide do not necessarily preclude review in other jurisdictions, a split 9th U.S. Circuit Court of Appeals panel decided Tuesday, adding gloss to a nascent doctrine that has attracted Supreme Court notice but no definitive guidance.

While noting they were in "uncharted waters," two judges found the matter before them -- a Northern District block of Trump administration contraceptive health care rules -- was not mooted by a nationwide injunction from a Pennsylvania court that provides relief to the plaintiffs in the circuit's appeal, that is 13 states including California.

The ruling counters one core argument advanced by detractors of universal remedies, which have issued regularly in recent years to halt executive branch action, namely that they prevent the sort of varied consideration among different courts that aids doctrinal development.

In an ardent dissent, Senior Circuit Judge Andrew Kleinfeld described the court's decision as essentially pointless, given the extant Pennsylvania injunction.

"Nothing we say or do in today's decision has any practical effect on the challenged regulation," wrote Kleinfeld, a George H.W. Bush appointee. "We are racing to shut a door that has already been shut."

California's challenge sought to strike down U.S. government agency rules that would exempt employers with "religious and moral objections" from Affordable Care Act requirements that group health care plans cover contraception without additional cost to employees. U.S. District Judge Haywood S. Gilliam Jr. granted a limited injunction against the rules, blocking them from taking effect within the plaintiff states.

The next day a Pennsylvania district court granted broader relief to unrelated plaintiffs, crafting a preliminary injunction with universal effect, which the 3rd Circuit affirmed. In response, the 9th Circuit panel hearing the appeal of Gilliam's ruling ordered briefing on whether the later remedy mooted the matter, as any result from the panel would theoretically leave California and its fellow plaintiffs in the same position -- protected by Pennsylvania's decision.

Tuesday's majority -- comprising Senior Circuit Judge J.Clifford Wallace, a Richard Nixon appointee, and Bill Clinton appointee Circuit Judge Susan Graber -- decided the circuit maintained jurisdiction to consider the appeal and sided with the challengers.

"To our knowledge, no court has adopted the view than an injunction imposed by one district court against a defendant deprives every other federal court of subject matter jurisdiction over a dispute in which a plaintiff seeks similar equitable relief against the same defendant," read the opinion Wallace authored. "Instead, in practice, nationwide injunctions do not always foreclose percolation."

The majority asserted Kleinfeld's dissent "proved too much" because its rationale would mean the Pennsylvania court itself lacked jurisdiction to issue relief applying to the plaintiffs already protected by Gilliam's order, and the majority wrote it was hesitant to apply a rule holding that court "plainly" acted beyond its own jurisdiction.

"At most, then, the dissent's reasoning would lead us to conclude that the Pennsylvania injunction is limited in scope to the territory of those thirty-seven non-party states," wrote Wallace. "Under that interpretation, the two injunctions complement each other and do not conflict."

The majority also noted Pennsylvania's broad order might be trimmed by the Supreme Court, which circumscribed an earlier 9th Circuit universal remedy. That eventuality could leave California and its co-plaintiffs exposed, were Gilliam's order not affirmed, Clifford reasoned. State of California v. Little Sisters of the Poor, 2019 DJDAR 9941 (9th Cir., Oct. 22, 2019).

Howard Wasserman, a professor at Florida International University College of Law who has written extensively in opposition to nationwide injunctions, said in an interview Tuesday that a compromise solution could have been crafted whereby the circuit leaves its injunction in abeyance but able to be resumed if events warrant. Wasserman seconded Kleinfeld's argument the circuit's ruling was futile.

"The fact that the 9th Circuit may reach a different conclusion [than the 3rd Circuit] doesn't matter. The fact that the 9th Circuit might agree doesn't matter," Wasserman said. "The result in both instances is going to be the same, which is that the government can't enforce this regulation."

Near the conclusion of its opinion the majority invited authoritative high court guidance on the question, noting "[t]he Supreme Court has yet to address" how courts should treat potentially overlapping injunctions.