House Considering Bill that… Needs Thought (Updated).

A link to the bill is here, and I understand committee mark up was yesterday.  The text is:

‘‘No court of the United States (and no district court of the Virgin Islands, Guam, or the Northern Mariana Islands) shall issue an order that purports to restrain the enforcement against a non-party of any statute, regulation, order, or similar authority, unless the non-party is represented by a party acting in a representative capacity pursuant to the Federal Rules of Civil Procedure.’’

I am trying to envision the problems this creates for patents, and happen to be writing a book on Remedies right now.

A fellow professor who supports the bill noted that my original headline had it backwards.  Let me see if I can put it in context and understand it:

A court, if this is enacted, cannot restrain enforcement of a statute against a non-party.  So, a court could not issue an injunction that did not allow a patent owner to enjoin non-parties, because a statute allows injunctions. (I think I have the double negative right.)  So, I *think* it helps patent injunctions?  What about in contributory or inducement cases?

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

31 thoughts on “House Considering Bill that… Needs Thought (Updated).

  1. 8

    A poorly drafted attempt to prevent any “class action” suits against any and all illegal regulations and executive orders?

  2. 7

    Non-citizen immigrants cannot be the person named in some statutes, since some statutes apply only to citizens. Therefore, enforcement of a some statutes against unrepresented non-citizens is not restrained.

  3. 6

    “Preclude enforcement of injunctions against third parties” may implicate ITC general exclusion orders and the language in limited exclusion orders that includes non-party subsidies and other corporate forms of the respondents. Not sure the text of the bill lines up with the title of this post though.

  4. 5

    unless the non-party is represented by a party acting in a representative capacity

    Could this be as simple (and subtle) as “Attorney Industry Insurance”…?

  5. 4

    Right. Perhaps I am wrong, but I don’t read this bill as precluding enforcement of injunctions against non-parties. As stated in the subsection title, this bill relates to “orders purporting to restrain enforcement against non-parties.” So, in other words:
    – Congress passes unconstitutional statute.
    – Government tries to enforce statute against me and you.
    – I sue in federal district court to have the statute declared unconstitutional and because I prove at a pre-trial hearing, among other things, the prospect of irreparable harm and the likelihood that I will prevail, the district court grants a preliminary injunction.
    – Government is now barred from enforcing statute against me, but can still enforce statute against you, because you weren’t a party to my suit (and I was not acting in a representative capacity for you).

    In the patent context, perhaps this new law could mean:
    – Court issues unlawful injunction against accused infringers X and Y (an “order”).
    – Accused infringer X, not acting in a representative capacity of accused infringer Y, successfully appeals the injunction, resulting in an appellate decision that “purports to restrain the enforcement [of the order] against” accused infringer X and also non-party accused infringer Y.
    – Patentholder can further appeal appellate decision to the U.S. Supreme Court (I can’t think of another, lower-court remedy) under this new law to make sure that the original order, the injunction, is still enforceable against accused infringer Y.

    1. 4.1

      This was meant as a reply to comment 2 by Atari Man, below. I know I hit the “reply” button, so I’m not sure why it ended up out-of-thread.

    2. 4.2

      I’m no constitutional law expert, but on principle, one would assume that if in fact a law passed by congress IS unconstitutional, it has exceeded the power of congress and in some sense was void ab initio… and always was (even if no one in the fallible human based system of checks and balances had identified it as such).

      Now, if some president erred by not-vetoing the law, and it goes on the books, IF it is unconstitutional I do not see how it is valid, no matter how long it is in force. Given that it is a human system of checks and balances, it might be only once it reaches the judiciary that the violation is identified and law properly declared invalid.

      Now comes the interesting part, is the identification of an invalidly written “statute” as invalid due to unconstitutionality, a “purporting” to “restrain” the statute? Is the invalid document properly a “statute” or is it a piece of paper “purported to be a statute”?

      Whether you are a Dem railing against an immigration statute or a Rep railing against a statute enforcing welfare Statism, it would seem to me that the Constitution, whom all are sworn to protect and uphold, would have crucial precedence, and that a finding of unconstitutionality could not be equated with a “purported restraint” but the identification of an invalid law masquerading as a valid one.

      1. 4.2.1

        Your “is the law a valid law” question is broader than you might suppose.

        Is a law only invalid if it rises to the level of being unconstitutional?

        Does “void ab inito” only apply to “invalid by way of unconstitutionality” (assuming for the sake of argument that a law may be invalid for less than being unconstitutional)?


          Interesting questions but they raise more questions…

          If a particular law is initially identified as invalid (on grounds other than the constitution) … let’s say it is incomprehensible, or technically self-contradictory, indefinite and hopelessly vague, or a fraud obtained at gunpoint (say fancifully that congress and pres and held by terrorists) whatever reason…

          to the extent that the law is identified as invalid is based on a rational standard and some set of valid principles, query what the natures of that rational standard/set of valid principles are… are these principles of justice, freedom, fairness before the law, the rule of law… what?

          to the extent you have identified these standards and principles by which you can determine a law invalid, then consider what possible standards and principles you could use to declare that a law was invalid and yet at the same time be able to claim that the law is nonetheless constitutional?


            query what the natures of that rational standard/set of valid principles are

            Does that matter?

            If we open the door past “constitutional,” is not that door open for all manners of “invalid?” Why would it be otherwise?

            As to “invalid but nonetheless constitutional” you cannot get there from here. Remember, the point here is that the invalid law is void ab initio – once that it reached, then there is NO law to consider as to whether it is constitutional or not – that point would be mooted.


              You have implicitly raised the “possibility” that a written “law” might be constitutional yet “invalid” as law, and I had assumed you raised it because you deemed it relevant and interesting.

              I had responded in the interest of exploring the idea, but it seems from your response that my response has failed.

              I am not a proponent of “all manner” of invalidity, and in fact my questions were posed to illustrate the converse. IF the constitution is a proper one (its been amended quite a bit during its lifetime) then it cannot abide an invalid law (if the standard of invalidity is also on its own proper). In other words implicitly the constitution cannot abide injustice, as neither can valid law, and hence invalid law is always unconstitutional.

              If you had a point originally (and I still am interested) what exactly was it?


                I think that we are talking crosswise.

                For a law to be invalid and for a law to be deemed unconstitutional are simply two different things.

                You want them to be the same on a de facto basis, of which there is not even a mechanism for doing so.

                May I suggest that from your starting vantage point, that you consider both that “not valid” and “not constitutional” may be different sets, AND that the question as to an item necessarily belonging to both sets may not be a point that could be reached (due to the ‘ab inito” end result that may be reached by either means)

    3. 4.3

      Yes, that’s how this House bill would work. Seems to be a GOP response to judicial orders that, for example, enjoin the government from imprisoning children separately from their parents at the border. If this House bill became law, in this example a court could order the government to stop separating only those persons who are named parties to the lawsuit, and could not enjoin the government from separating all families entering the United States.

  6. 3

    I don’t understand the language. “No court of the United States … shall issue an order that purports to restrain the enforcement … of any statute, regulation, order, or similar authority…” How does one “restrain the enforcement” of a statute? A court can enforce a statute by issuing a restraining order, but restraining the enforcement of a statute sounds like a court setting a statute aside, e.g. telling the police they can’t arrest someone for a crime of which he’s suspected.

    1. 3.1

      For example, the current administration issues an executive order barring entry of certain visa holders from a bunch of countries. A state sues on behalf of a certain list of visa holders to get an injunction to bar enforcement of the executive order. The court provides that injunction and indicates that it applies nationwide.

      This bill would make it so that the district court could enjoin the administration against pursuing the executive order against the specific people named on that list, but anybody else not on the list would have to go through their own process of getting an injunction to block enforcement of the executive order.

      In other words, this would be a HUGE power grab on the part of the executive branch, and the potential for unintended consequences years down the line are equally huge.

      1. 3.1.1

        Yes. Various Republican (big “R”) Congresspeople have been publicly discussing the need for such legislation to curtail attacks on executive-branch agendas for the last several months.


          Various Republican (big “R”) Congresspeople have been publicly discussing the need for such legislation to curtail attacks on executive-branch agendas for the last several months.

          Yes, I remember the huge outcry from those same people when Obama’s executive orders were blocked.


          That never happened.

      2. 3.1.2

        While I don’t doubt that some (who instinctively react against any application of TRADITIONAL power of the executive branch given Trump is currently President) can present the argument in this manner……

        Other might frame it as EXPLICITLY making clear that the JURISDICTION of any LOCAL FEDERAL COURT’s orders is limited such that the a Ninth Circuit court judge (which historically lean extremely liberal due to the way judges have historically been confirmed with the local Senators essentially having veto power over judicial appointments affecting the courts in their States) can’t force the “judge’s” (liberal or conservative depending on the local court) decisions/outlook on ALL THE OTHER FEDERAL COURTS and OTHER BRANCHES of GOV’T in the nation based on a highly limited (and possibly non-representative) class action suit while we await all appeals running.

        Not being a lawyer…I personally don’t know HOW this rule would affect all the current hysteria…..but I applaud Dennis’s bringing it up and trying to question what it means.


          Interesting points.

          One of my reactions: should not “local Federal” be an oxymoron?

          In any way, how should “Federal” even have a “local” component?

          Does this bill then cement that idiosyncratic view into place (while seeking to diminish its effect)? Would a different approach to root out any “cause” of “local” be better long term? Would such different approach even be possible?


          During the committee hearing yesterday, Goodlatte’s statement suggested that class actions were the appropriate way to handle these issues (this is why the Civ Pro rules are mentioned in the bill), while Nadler responded that the time frame for certification of a class action imposes delays that could make meaningful relief impossible (i.e., permanent and uncorrectable harm would be done in the meantime).

          It’s important to keep in mind that Winter v. NRDC already ensures that these injunctions are only being issued when the impact of not doing so is patently unjust. And the federal government still has the remedy of an interlocutory appeal.


          a Ninth Circuit court judge (which historically lean extremely liberal


          “Extremely liberal”? I suppose it might look that way from the multi-purpose room of Holy Redeemer Church in Podunk, Oklahoma but otherwise very little about the Ninth Circuit is “extremely liberal.”

          But, hey, cling to those myths! They’re very important to you.



            “cling to…?”

            I suppose that you feel it necessary to take any impression as to the Left being “extreme” and try to eliminate that. I suppose that makes you feel that such views are “really” center, as in “normal,” but I think that your feelings show a bit too much sensitivity, as the those terms are understood in a larger poli-philosophical sense, and do not need any such “re-adjusting.”


              I suppose that you feel it necessary to take any impression as to the Left being “extreme” and try to eliminate that.

              Says the kettle.

              My goodness you really need to get a life.


                Says the kettle…

                I am not the one throwing hissy fits over commonly accepted vernacular – that would be you, 0H, Trump of these boards.

                Put away your Accuse Others meme, please.

  7. 2

    That one passed on party lines. They crammed through several substantive bills today without analysis or debate. The bill text only became available in the last 24-48 hours. I submitted your exact question to committee members along with questions about the fee setting authority. All were ignored. This is our “republican” (little “r”) form of government at its finest. There is one party, the one against the people.

  8. 1

    Telling the Supreme Court it doesn’t have the power to rule a statute unconstitutional? Lemme know how that goes.

      1. 1.1.1

        …additionally, the concept you reflect (judicial review) was set in the Marbury case, and that judicial review does NOT require Supreme Court reviewability — merely reviewability for an Article III Court. This is why the constitutional authority for the Congress to remove the Supreme Court from that Court’s non-original jurisdiction of patent appeals is a legally permissible alternative.

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