Ruling on Eviction Moratorium Illustrates Problem of National Injunctions
Activists Can Choose From Almost 100 Judges, and Need Convince Only One
That ruling was not unexpected, says public interest law professor John Banzhaf, but the remedy Judge Friedrich chose reminds us of a major legal problem which was most evident when different judges were asked to rule on a variety of controversial actions by then-president Donald Trump and his administration.
Instead of limiting his corrective order to the plaintiffs before the court, or even to all similarly situated property owners within the District, the judge granted relief to every property owner in the entire United States.
Under this general policy of preferring injunctions and other remedies which are national in scope to those confined solely to the parties or to the jurisdiction served by the district court, those seeking to attack most general regulations can choose from almost 100 judicial districts in which to bring their law suit.
This choice of forum is often made with the hope - based on the judicial philosophy and prior rulings of individual judges - of obtaining the single jurist in the entire country most sympathetic to the plaintiffs and their cause. The practice is so well known that it has a name and reputation: forum shopping.
Find just one sympathetic judge who is willing to issue an injunction which is national in scope, rather than a more limited one, and the attackers have won.
Perhaps of even more concern is that plaintiffs can follow the old motto: if at first you don't succeed, try try again.
Even if several judges have ruled that the regulation is question is valid, and/or have otherwise denied a request for an injunction, any one of the remaining almost 100 judges can nevertheless rule against the regulation, and issue an injunction reaching throughout the entire country.
In effect, one judge ruling against the regulation can overrule - or at least effectively nullify - rulings by a dozen or more judges who issued decisions upholding it.
If and when competing decisions on a specific regulation are appealed to their respective circuit courts, the problem remains.
Even if three or more of the circuits all conclude that the regulation is valid, a decision by any other circuit, upholding a lower court decision to issue a national injunction invalidating the regulation, will control.