Michael T. Morley (Barry University School of Law) has posted Nationwide Injunctions, Rule 23(B)(2), and the Remedial Powers of the Lower Courts (Boston University Law Review, Vol. 97, 2017) on SSRN. Here is the abstract:
When a court holds that a legal provision is unconstitutional or otherwise invalid, it must decide how broadly to implement its ruling. Sometimes, a single trial judge asserts authority to completely prohibit a government defendant from enforcing a challenged provision against any person, anywhere in the country. Such nationwide injunctions raise questions concerning the proper scope of lower courts’ remedial powers.
A successful plaintiff in federal court generally is entitled to an injunction sufficiently broad to protect its own rights, but lacks standing to enforce the rights of third parties. A court abuses its discretion by issuing a nationwide injunction that is insufficiently tailored to enforcing the rights of the particular plaintiffs before it. Federal Rule of Civil Procedure 23(b)(2), however, allows a court to certify a plaintiff class of rightholders affected by a legal provision, empowering it to grant broader injunctive relief than would otherwise be appropriate. By certifying a nationwide class of all rightholders, a court can effectively give its ruling the force of law throughout the nation and completely bar the government from enforcing a statute or regulation. The scope of a court’s remedial powers therefore depends in large part on the propriety of nationwide classes under Rule 23(b)(2).
Federal courts seldom, if ever, should certify nationwide classes, and nationwide injunctions should therefore be correspondingly rare. Certifying a nationwide class raises the same structural concerns that led the Supreme Court to exempt the government from non-mutual offensive collateral estoppel. Nationwide classes and injunctions preclude the underlying legal issue from percolating through the judicial system, prevent the Supreme Court from seeing the practical consequences of different approaches to an issue, and compel the Government to appeal the first adverse ruling on it. Moreover, Rule 23(b)(2) neither imposes meaningful constraints on a district court’s ability to certify a nationwide class, nor contains any substantive standards appropriate for determining when a court’s ruling should be giving nationwide effect. Certifying a nationwide class also allows a district court to apply the law of its own circuit to rightholders in other jurisdictions whose claims are properly governed by other circuits’ precedents and interpretations of the Constitution. A nationwide class allows a court to apply its injunctions to rightholders and claims far beyond the geographic jurisdiction in which its rulings may have a stare decisis effect.
There are four main circumstances in which nationwide classes and injunctions potentially might be appropriate. First, when the right at issue is clearly established as a matter of Supreme Court (not circuit) precedent, and reasonable jurists could not disagree about it. Second, when necessary to enforce an “indivisible” right, where it is impossible to enforce a single plaintiff’s rights without necessarily enforcing those of other rightholders, as well. Third, when the gravamen of the plaintiff’s claim is that the challenged provision unduly burdens her rights. Finally, applying a variation of a traditional severability analysis, nationwide class certification may be appropriate if the court concludes that the entity that enacted the challenged provision would not have wanted it to remain in effect, if it were unenforceable against the plaintiffs. Outside of these narrow contexts, a district court should certify circuitwide Rule 23(b)(2) classes, rather than nationwide classes, in challenges to federal legal statutes and regulations.