A Lottery System Could Help Solve Universal Injunction Issue

Increasingly, legal challenges to new federal regulations are being waged in multiple lawsuits instead of one. This tactic rewards plaintiffs with multiple chances of convincing a single judge to stop the regulations from going into effect, all while taxpayers foot the bill.

For example, over the past several weeks, Republican state attorneys general have filed four lawsuits challenging the Biden administration’s new Title IX regulations: one each in Alabama, Louisiana, Kentucky, and Texas.

In 2017, Democratic state attorneys general pursued a similar, albeit less diffuse, strategy by filing two different lawsuits challenging the Trump administration’s rescission of the Deferred Action for Childhood Arrivals program: one each in New York and California. DACA recipients and other parties, such as universities filed similar lawsuits across the country.

Challenges like these often land before the US Supreme Court eventually, but a so-called universal injunction against the new regulations in just one case can stall those regulations nationwide for months or even years.

These challenges aren’t necessarily coordinated. Rather, the plaintiffs seem to be competing for maximum publicity or their vision of the optimal forum. Yet, it’s only a matter of time before these plaintiffs realize—if they haven’t already—that these multipronged challenges deliver not only increased attention and a favored court, but also a greater likelihood of disruption.

This metastasizing phenomenon not only delays federal regulations, but it overburdens the federal government at a cost to taxpayers. The agency responsible for the regulations is compelled to litigate in multiple fora while federal judges across the country are forced to waste their time and energy adjudicating practically identical issues, all on the public’s dime.

And while state attorneys general from the same party and sympathetic private plaintiffs prefer several bites at the apple when challenging disfavored regulations, the shoe lands on the other foot once administrations change.

No existing mechanisms can thwart plaintiffs from diffusing such challenges to federal regulations. The Multidistrict Litigation Act of 1968 allows a panel of federal judges called the Judicial Panel on Multidistrict Litigation to consolidate pretrial proceedings in cases involving “one or more common questions of fact” if it decides that consolidation “will be for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions.”

It exercises this power routinely, as with its consolidation of nearly 250,000 lawsuits filed against 3M alleging injuries arising from the use of 3M’s earplugs into a single multidistrict litigation in Pensacola, Fla. But the panel lacks authority to consolidate cases based on common questions of law—such as, is a certain federal regulation unconstitutional?

Federal law does enable consolidation of cases involving a “common question of law,” but only if those cases are pending in the same federal court, and nothing requires plaintiffs to file similar lawsuits with, or transfer similar lawsuits into, the same court. Federal law also provides for class actions, where one or more representative parties may sue or be sued on behalf of absent class members in a single case, but class actions don’t combine like cases together.

The JPML also oversees a Congressionally-mandated lottery to determine which federal appeals court will hear a challenge to a federal regulation when multiple challenges are filed in appeals courts. This process is less common, but not infrequent. The lottery was used to select the Cincinnati, Ohio-based federal appeals court to decide the validity of the Covid-19 vaccinate-or-test regulations. However, no such lottery is permitted unless Congress has provided for direct review of regulation in the federal appeals courts, which is rare.

Legislators on both sides of the aisle have tried to address the problems borne of universal injunctions by introducing bills to restrict their use, but they haven’t gained traction.

Meanwhile, some legal scholars have contended that the courts themselves are best situated to address universal injunctions, but the courts have yet to take up this call to action. As such, it appears that universal injunctions and the downstream malady of multiple challenges to the same federal regulation that results are here to stay, at least for now.

As long as universal injunctions persist, the federal government should impede duplicative challenges to federal regulations. One solution is for Congress or the Supreme Court (exercising its authority to issue new federal procedural rules) to employ a lottery system to decide which federal court will hear a challenge to a federal regulation when multiple suits are filed. Interested parties could intervene to protect their interests, but challenges elsewhere would pause while one lawsuit would proceed.

Consolidating regulatory challenges via lottery would lower federal and state taxpayers’ burdens, redirect public officials toward nonduplicative efforts to serve the general welfare, and establish a more just approach to provisional legal dispute resolution.

Unless and until Congress or the courts address the ramifications of universal injunctions, this band-aid would center dispute resolution back towards its twin goals of efficiency and justice.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Ryan H. Nelson is a law professor who teaches civil procedure at South Texas College of Law Houston.

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