Petition for Writ of Certiorari — David C. Shinn, Petitioner v. Ryan Robert Baker

No. 20-____

In the

Supreme Court of the United States

DAVID C. SHINN,

v.

ROBERT RYAN BAKER,

Petitioner,

Respondent.

On Petition for a Writ of Certiorari to the

U.S. Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

MARK BRNOVICH

Attorney General

JOSEPH A. KANEFIELD

Chief Deputy and

Chief of Staff

BRUNN W. ROYSDEN III

Solicitor General

DREW C. ENSIGN

Deputy Solicitor General

Counsel of Record

DANIEL P. SCHAACK

CHRISTOPHER P. WHITE

ROBERT J. MAKAR

Assistant Attorneys

General

OFFICE OF THE ARIZONA

ATTORNEY GENERAL

2005 N. Central Ave.

Phoenix, AZ 85004

(602) 542-5025

Drew.Ensign@azag.gov

Counsel for Petitioner

i

QUESTIONS PRESENTED

In United States v. Sineneng-Smith, 140 S. Ct.

1575, 1579 (2020), this Court unanimously held that

“[i]n our adversarial system of adjudication, [federal

courts] follow the principle of party presentation …

rely[ing] on the parties to frame the issues for

decision and assign to courts the role of neutral

arbiter of matters the parties present.” United

States v. Sineneng-Smith, 140 S. Ct. 1575, 1579

(2020). It further explained that where a court of

appeals injects new issues into an appeal not raised

by the parties, it effects a “radical transformation of

[the] case [that] goes well beyond the pale,” and

unanimously reversed a decision of the Ninth Circuit

that had done just that. Id. at 1581-52.

While Sineneng-Smith was pending, the Ninth

Circuit committed essentially the same error, save

for some features that make the departure from the

ordinary adversarial system even worse here.

Sineneng-Smith came down the day after the Ninth

Circuit had denied a petition for rehearing. The

questions presented are:

1. Whether this Court should reverse the

decision below under Sineneng-Smith.

2. Whether this Court should grant, vacate and

remand in light of Sineneng-Smith.

ii

STATEMENT OF PARTIES AND RELATED

PROCEEDINGS

The Petitioner is David C. Shinn, who has

succeeded Charles L. Ryan as the Director of the

Arizona Department of Corrections (now known as

the

Arizona

Department

of

Corrections

Rehabilitation and Reentry), Defendant below.

The Respondent is Ryan Robert Baker, Plaintiff

below, who filed the underlying action under 42

U.S.C. § 1983.

Related proceedings include two predecessor

cases:

Baker v. Arizona (“Baker I”), C20172341 (Pima

Cty. Super. Ct.)

Baker v. Arizona (“Baker II”), C20175428 (Pima

Cty. Super. Ct.)

iii

TABLE OF CONTENTS

TABLE OF AUTORITIES......................................... vi

OPINIONS BELOW ................................................... 1

JURISDICTION ......................................................... 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ................................. 1

INTRODUCTION ....................................................... 2

STATEMENT OF THE CASE ................................... 6

Factual Background ............................................ 6

Prior Litigation .................................................... 6

Baker I ........................................................... 6

Baker II .......................................................... 6

Procedural Background ....................................... 8

1. District Court Proceedings (Baker III) ..... 8

2. Court Of Appeals Briefing......................... 9

3. Pre-Argument Order And Argument ...... 10

4. Court Of Appeals Decision ...................... 12

5. Rehearing Petition................................... 13

6. Sineneng-Smith And Issuance Of The

Mandate ....................................................... 14

REASONS FOR GRANTING THE WRIT ............... 14

I.

THIS COURT SHOULD SUMMARILY

REVERSE UNDER SINENENG-SMITH ........ 14

A. The Ninth Circuit’s Decision Is Directly

Contrary To Sineneng-Smith...................... 15

iv

B. The Ninth Circuit’s Deviation From The

Principles Of Our Adversarial System

Is Even More Egregious Here..................... 16

C. The Ninth Circuit’s Decision Was

Wrong As A Matter Of State law ............... 20

D. A Summary Reversal Is Warranted

Here ............................................................. 26

II. ALTERNATIVELY, THIS COURT

SHOULD GVR IN LIGHT OF SINENENGSMITH ............................................................... 27

CONCLUSION ........................................................ 27

APPENDIX

Appendix A

Memorandum in the United

States Court of Appeals for

the Ninth Circuit

(March 13, 2020) ...................... App. 1

Appendix B

Order Filed Under Seal in the

United States District Court

for the District of Arizona

(August 23, 2018)..................... App. 6

Appendix C

Order Denying Petition for

Rehearing in the United

States Court of Appeals for

the Ninth Circuit

(May 6, 2020) ......................... App. 22

Appendix D

Mandate in the United States

Court of Appeals for the Ninth

Circuit

(May 14, 2020) ....................... App. 24

v

Appendix E

Under Advisement Ruling in

the Arizona Superior Court,

Pima County

(January 17, 2018) ................. App. 26

Appendix F

Order in the United States

Court of Appeals for the Ninth

Circuit

(January 28, 2020) ................. App. 31

Appendix G

Rule 28(j) Letter in the Office

of the Arizona Attorney

General State Government

Division Liability

Management Section

(May 7, 2020) ......................... App. 34

Appendix H

Complaint in the District

Court for the United States

District of Arizona

(February 8, 2018) ................. App. 37

Appendix I

Civil Docket in the United

States District Court District

of Arizona ............................... App. 52

Appendix J

General Docket in the United

States Court of Appeals for

the Ninth Circuit ................... App. 69

vi

TABLE OF AUTHORITIES

CASES

Aldrich & Steinberger v. Martin

837 P.2d 1180 (Ariz. App. 1992) ............................ 11

Ariz. Downs v. Superior Court of Ariz.

623 P.2d 1229 (Ariz. 1981) ............................... 11, 13

Arizonans for Official English v. Arizona

520 U.S. 43 (1997) .................................................. 19

Baker v. Ryan

798 Fed. Appx. 137 (9th Cir. 2020) ..........................1

Clouse ex rel. Clouse v. State

16 P.3d 757 (Ariz. 2001) ......................................... 25

Dyniewicz v. United States

742 F.2d 484 (9th Cir. 1984) .................................. 25

Erie Railroad Co. v. Tompkins

304 U.S. 64 (1938) .................................................. 24

F.D.I.C. v. Meyer

510 U.S. 471 (1994) .................................... 13, 21, 23

Gatecliff v. Great Republic Life Ins. Co.

744 P.2d 29 (Ariz. App. 1987) ................................ 23

Idaho v. Coeur d’Alene Tribe of Idaho

521 U.S. 261 (1997) ................................................ 11

Lee v. Arizona

242 P.3d 175 (Ariz. App. 2010) .............................. 24

Mach v. State, Arizona Dep’t of Corrections

2015 WL 3503446 (Ariz. App. May 14, 2015) ........ 23

O’Guinn v. Lovelock Corr. Ctr.

502 F.3d 1056 (9th Cir. 2007) ................................ 10

vii

Pritchard v. Arizona

788 P.2d 1178 (Ariz. 1990) ..................................... 24

Ruiz v. Snohomish Cty. Pub. Util. Dist. No. 1

824 F.3d 1161 (9th Cir. 2016) .................... 12, 21, 23

Shakur v. Ryan

2017 WL 1150667 (Ariz. App. Mar. 28, 2017) ....... 23

Smith v. Marsh

194 F.3d 1045 (9th Cir. 1999) ................................ 10

Swift v. Tyson

41 U.S. 1 (1842) ...................................................... 24

Tripati v. State, Department of Corrections

16 P.3d 783 (Ariz. App. 2000) ................................ 22

United States v. Sineneng-Smith

140 S. Ct. 1575 (2020) ...... 1, 2, 15, 16, 17, 18, 19, 26

United States v. Sineneng-Smith

910 F.3d 461 (9th Cir. 2008) .................................. 18

Will v. Mich. Dep’t of State Police

491 U.S. 58 (1989) .................................................. 11

Woodford v. Ngo

548 U.S. 81 (2006) .................................................. 20

Yokois v. Ryan

2020 WL 2736514 (Ariz. App. May 26, 2020) ........ 22

STATUTES

28 U.S.C. § 1257(a) ......................................................1

42 U.S.C. § 1997e(e) .................................................. 22

A.R.S. §§ 12-820-820.05 ............................................ 25

A.R.S. § 12-821.01 ..................................................... 25

A.R.S. § 31-201.01(L)....................................... 2, 21, 23

viii

RULES

Arizona Rule of Civil Procedure 12(b)(6) .................. 22

Arizona Rule of Civil Procedure 41(b) .................. 1, 25

S. Ct. R. 10(a) ............................................................ 26

1

OPINIONS BELOW

The Ninth Circuit’s memorandum decision is

unreported but is available at Baker v. Ryan, 798

Fed. Appx. 137, 2020 WL 1231420 (9th Cir. 2020),

and is reproduced at App.1-5. The district court’s

opinion is unpublished and reproduced at App.6-21.

JURISDICTION

The Ninth Circuit issued its judgment on March

13, 2020, and denied a petition for rehearing filed by

Petitioner David C. Shinn (hereinafter, the “State” or

“Shinn”) on May 6, 2020. 1 The time to file a petition

for certiorari was extended by this Court’s March 19,

2020 order until October 5, 2020. This Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case turns principally on the role of federal

courts in our adversarial system and the “principle of

party presentation.” United States v. SinenengSmith, 140 S. Ct. 1575, 1579 (2020).

The court of appeals injected a wholly new issue

into the case—not argued in briefing by Respondent

Baker—concerning the preclusive effect of a prior

judgment of an Arizona state court. The preclusive

effect of a state court judgment under Arizona law is

governed by Arizona Rule of Civil Procedure 41(b),

which the court of appeals never cited. That rule

provides in relevant part:

1

David C. Shinn replaced Charles L. Ryan as Director of the

Arizona Department of Corrections, and is substituted as a

party under this Court’s Rule 35(3).

2

Unless the dismissal order states

otherwise, a dismissal under this Rule

41(b) and any dismissal not under this

rule—except one for lack of jurisdiction,

improper venue, or failure to join a

party under Rule 19—operates as an

adjudication on the merits.

In addition, a crucial issue that the court of

appeals injected into this case sua sponte turns on

Arizona Revised Statutes (“A.R.S.”) § 31-201.01(L),

which provides as follows:

A person who is convicted of a felony

offense and who is incarcerated while

awaiting sentence or while serving a

sentence imposed by a court of law may

not bring a cause of action seeking

damages or equitable relief from the

state or its political subdivisions,

agencies, officers or employees for

injuries suffered while in the custody of

the state or its political subdivisions or

agencies unless the complaint alleges

specific facts from which the court may

conclude that the plaintiff suffered

serious physical injury or the claim is

authorized by a federal statute.

INTRODUCTION

“In our adversarial system of adjudication, [federal

courts] follow the principle of party presentation …

rely[ing] on the parties to frame the issues for

decision and assign to courts the role of neutral

arbiter of matters the parties present.” United

States v. Sineneng-Smith, 140 S. Ct. 1575, 1579

(2020) (cleaned up). “They ‘do not, or should not,

3

sally forth each day looking for wrongs to right.

They wait for cases to come to them, and when cases

arise, courts normally decide only questions

presented by the parties.’” Id. (citation omitted)

(cleaned up).

In Sineneng-Smith, the Ninth Circuit injected a

wholly new issue into the appeal (a First

Amendment overbreadth argument) that “SinenengSmith herself never raised earlier,” inviting amici

and the parties to brief the issue. Id. at 1578. After

full briefing and a new oral argument, the Ninth

Circuit then then proceeded to decide the

overbreadth argument—i.e., its own brainchild—in

Sineneng-Smith’s favor.

This Court unanimously reversed, concluding that

“[n]o extraordinary circumstances justified the

panel’s takeover of the appeal” and that “the Ninth

Circuit’s radical transformation of this case goes well

beyond the pale.” Id. at 1581-52.

While Sineneng-Smith was pending before this

Court, the Ninth Circuit was busy committing the

same sort of “radical transformation” in this appeal.

Specifically, it injected a wholly new issue into the

appeal—whether a prior state court judgment was

not actually a decision “on the merits” (as

Respondent Baker had assumed) and thus lacked

preclusive effective under Arizona law. App.31-33.

There is no question that this argument did not

originate from the parties, with Baker admitting

“[t]he court is correct that this argument was not

raised on appeal,” and “I will concede that I did not

make the argument on appeal.” February 6, 2020

Oral Argument at 3:19, 5:15, Baker v. Ryan, 798 Fed.

Appx. 137, 2020 WL 1231420 (9th Cir. 2020),

4

available at

https://www.ca9.uscourts.gov/media/

view_video.php?pk_vid=0000016977

(hereinafter,

“Oral Argument”).

Indeed, the Ninth Circuit’s departure from the

bedrock principles of party presentation is even more

egregious here. Unlike Sineneng-Smith, the State

was not even provided with an opportunity to brief

the ultimately dispositive issue, and instead could

only address it at oral argument. App.31-33. Nor

did the Ninth Circuit offer any explanation for its

actions that would not apply in virtually every case,

only breezily proffering in a footnote that “the

question is a legal one” and that the State “had an

opportunity to argue the point and did so” (i.e., a tenminute oral argument). App.3 n.1. Moreover, the

issue was (1) one of state law, which was at best

unsettled for Baker, and should have left to state

courts to resolve when actually presented, (2) an

argument that, unlike Sineneng-Smith, the appellant

never actually agreed to make—despite the panel

majority’s palpable urging that he do so, and

(3) arose in the prison-litigation context, where

Congress has sought to ease the burdens on states,

not create new ones.

Likely reflecting the completely unbriefed nature of

the issue on which the panel majority rested its

decision, the Ninth Circuit badly erred in its

resolution of that state law question—deciding the

issue in a manner contrary to every available

Arizona-law authority. Even more bizarrely, the

court exclusively cited federal case law in resolving

that dispositive issue of Arizona law.

Judge

O’Scannlain rightly dissented from both the

majority’s decision to consider the completely

5

unbriefed issue and from the panel’s resolution of it.

App.4-5.

The State sought rehearing on May 4, raising these

essential arguments (but without benefit of this

Court’s Sineneng-Smith decision). App.89. The

Ninth Circuit promptly denied the rehearing petition

on May 6. App.22-23, 89.

This Court then released Sineneng-Smith the next

day, on May 7, which the State brought the case to

the court of appeal’s attention by Rule 28(j) letter

that same day. App.34-36, 89. The Ninth Circuit

took no action in response to the State’s letter,

however, and instead let its mandate issue without

explanation on May 14. App.24-25, 89. There is no

evidence that the Ninth Circuit panel ever

considered whether its decision could be reconciled

with Sineneng-Smith, or indeed read the State’s 28(j)

letter at all.

This Court should summarily reverse in light of

Sineneng-Smith. The Ninth Circuit’s departure from

the principles underlying that decision is profound

and indefensible. Such a reversal would have a

significant salutary effect and underscore to the

courts of appeals that this Court stands by the

principles set forth in Sineneng-Smith, and that it

cannot be simply disregarded as a one-off case. And

this case presents an ideal vehicle to do so, given the

clarity of the Ninth Circuit’s error and its

unwillingness to abide by Sineneng-Smith while the

ink on that decision had not even had a chance to

dry.

Alternatively, this Court should grant, vacate and

remand in light of Sineneng-Smith. There is no

indication that the Ninth Circuit ever considered

6

whether its approach below could be reconciled with

that decision and a GVR would provide it an

opportunity (and mandate) for that court to do so.

And if there is any method of reconciling that

approach with Sineneng-Smith, a GVR would likely

either dislodge it or make clear its non-existence.

STATEMENT OF THE CASE

Factual Background

The Respondent, Ryan Baker, is an Arizona

prisoner. App.38. He has requested placement in

protective custody from the Arizona Department of

Corrections several times, starting in 2011. App.3850. The Department has declined to place him on a

protective custody yard. App.38. In response, Baker

has filed several lawsuits, including this one. The

questions presented do not turn on the specific facts

of the challenges to the non-placement in protective

custody.

Prior Litigation

This suit (Baker III) largely turns on the

preclusive effect of a prior suit by Baker (Baker II).

1. Baker I

In May 2017, acting through counsel, Baker filed

his first suit, Baker I, in the Arizona Superior Court

in Pima County; that suit sought an injunction

granting him protective custody placement. App.47

¶62. He later voluntarily dismissed the suit without

prejudice. App.47 ¶¶62-68.

2. Baker II

In November 2017, Baker filed Baker II—

represented by the same attorney and again in Pima

County Superior Court—against the State of

7

Arizona. App.8-11. He later filed a First Amended

Complaint, adding Director Ryan and another person

as putative Defendants.

The essential allegations of the Baker II

Complaint were that Baker “is known as a ‘snitch’ to

other prisoners, who target him for assault,

statewide. Plaintiff has requested protection from

other prisoners each time he was threatened, and

has been denied by the Protective Custody

Committee (‘PCC’) each time. Plaintiff will not be

safe from assault unless he is placed in protective

custody (‘PC’).” Ninth Circuit Excerpts of Record

(“CA9 ER”) 34 at 357.

The Baker II Complaint asserted two claims: a

common-law claim of gross negligence and a federal

claim under 42 U.S.C. § 1983. App.28. Baker asked

for declaratory relief and an injunction requiring his

placement in protective custody. App.8. Baker also

filed a motion for preliminary injunctive relief asking

for protection during the course of the litigation.

App.26.

The Arizona superior court denied Baker’s

request for a preliminary injunction, concluding

“that Plaintiff has failed to prove a likelihood of

success on the merits as to his claim against the

State of Arizona.” App.27-28. Although it identified

procedural issues with Baker’s complaint, it

nevertheless considered Baker’s arguments on the

merits and concluded that he had failed to establish

his entitlement to a preliminary injunction. App.2730.

The court further held that Baker’s grossnegligence claim failed under A.R.S. § 31-201.01(L),

which bars incarcerated felons’ nonfederal claims

8

against the government unless the plaintiff alleges a

serious physical injury. App.28-29. It also ruled that

the State was an improper defendant for Baker’s

§ 1983 claim. App.29. The superior court entered

judgment dismissing the action in June 2018. App.9.

By then, Baker had already filed this action, Baker

III.

Procedural Background

1. District Court Proceedings (Baker III)

Baker filed his original Complaint in this action

in February 2018. App.37. Its sole count named

Charles L. Ryan, who was then Director of the

Arizona Department of Corrections, and 100 John

and Jane Does, who were alleged to be “individual

members of the Protective Custody Committee.”

App.38-39.

Ryan was sued in “his official capacity for an

injunction for protective custody placement,” while

the Doe Defendants were “sued in their individual

and official capacities.” App.39. Baker “copied and

pasted nearly all of the factual allegations of Baker

II into his new complaint and he added no new

factual allegations.” CA9 ER 34 at 339. He included,

word-for-word, the “Nature of the Action” summary

of his claims from the Baker II Complaint. App.38.

The district court screened the Complaint and

ordered Ryan to answer. App.62. It dismissed the

Doe Defendants without prejudice. App.62.

Simultaneously with the Complaint, Baker moved

for a preliminary injunction, App.52, as he had done

in Baker II. Ryan opposed this request, and timely

answered the Complaint. App.10.

9

Ryan moved for judgment on the pleadings or

dismissal. App.10. He argued claim preclusion,

asserting that the Baker II final Judgment was an

adjudication on the merits under Arizona law and

therefore barred this suit. The parties fully briefed

Ryan’s Motion. Baker did not argue that the Baker

II Judgment against the State of Arizona was based

on lack of jurisdiction rather than lack of merit.

The district court granted judgment on the

pleadings. App.20. It ruled that “[t]he Baker II

judgment operated as an adjudication on the merits

of Plaintiff’s claims against the State.” App.14. It

found that Baker II involved the same claim as

Baker III, ran against a party (the State of Arizona)

in privity with Ryan, and resulted in a final

judgment. App.14-18. It ruled that “under [Arizona]

law, the Baker II judgment dismissing the claims

operates as an adjudication on the merits.” App.15.

It cited Arizona Rule of Civil Procedure 41(b) and

Phillips v. Arizona Board of Regents, 601 P.2d 596,

598 (Ariz. 1979), among other Arizona cases. App.15.

The court entered final Judgment, and Baker filed

a timely appeal. App.65.

2. Court Of Appeals Briefing

Baker appealed to the Ninth Circuit. Neither his

opening brief nor reply brief challenged the district

court’s ruling that the Baker II Judgment had

adjudicated the merits of his claim against the State

of Arizona. Baker correctly noted that the superior

court had not obtained personal jurisdiction over

Ryan in Baker II (Op. Br. at 22), but he did not argue

that it lacked jurisdiction over the State. Neither

brief cited the authorities on which the district court

10

had relied: Arizona Rule 41(b) and Phillips v.

Arizona Board of Regents.

3. Pre-Argument Order And Argument

The Ninth Circuit scheduled oral argument for

February 6, 2020. Nine days before the argument,

the panel issued an order that “directed [the parties]

to focus their arguments on the following questions:”

1. Did Plaintiff Ryan Baker waive or

forfeit the argument that the state

court’s judgment was not “on the

merits” as to the defendant State of

Arizona by failing to raise the argument

before the district court or in his briefs

to this court? See O’Guinn v. Lovelock

Corr. Ctr., 502 F.3d 1056, 1063 n.3 (9th

Cir. 2007) (holding that arguments not

raised before the district court generally

are waived); Smith v. Marsh, 194 F.3d

1045, 1052 (9th Cir. 1999) (holding that

arguments not raised in a party’s

opening brief generally are waived).

2. If the issue is not waived or forfeited,

was the state court’s judgment as to the

State of Arizona an adjudication on the

merits? In particular, did the State

retain sovereign immunity from suit

because Plaintiff had not met the

requirements of Arizona Revised

Statutes section 31-201.01(L)?

3. Is Defendant Charles Ryan, in his

official capacity, in privity with the

State of Arizona for purposes of this

suit? See Aldrich & Steinberger v.

Martin, 837 P.2d 1180, 1183 (Ariz. Ct.

11

App. 1992) (discussing privity); compare

Will v. Mich. Dep’t of State Police, 491

U.S. 58, 71 n.10 (1989) (although most

suits against officials in their official

capacity are treated as suits against the

State, “official-capacity actions for

prospective relief are not treated as

actions against the State”), with Idaho

v. Coeur d’Alene Tribe of Idaho, 521

U.S. 261, 269 (1997) (“When suit is

commenced against state officials, even

if they are named and served as

individuals, the State itself will have a

continuing interest in the litigation

whenever state policies or procedures

are at stake.”); see also Ariz. Downs v.

Superior Court of Ariz., 623 P.2d 1229,

1232 (Ariz. 1981) (“The rule is that a

judgment which binds the sovereign

also binds its subordinate officials.”).

App.31-32.

The panel’s order did not invite or permit

supplemental briefing on these issues.

At oral argument on February 6, Baker’s counsel

admitted that (1) “The court is correct that this

argument was not raised on appeal,” and (2) “I will

concede that I did not make the argument on appeal.

I am a trial lawyer. This is my first substantial

appeal.” Oral Argument at 3:19, 5:15.

A member of the panel majority added: ““I’m not

even sure you made it at trial. I don’t see in the

district court record an argument that this was not a

judgment on the merits. Indeed, you seem to have

12

assumed it was one,” to which Baker’s counsel

agreed, “Yes.” Oral Argument at 5:22.

4. Court Of Appeals Decision

The panel issued a split memorandum decision.

The panel majority held that the pertinent claim

preclusion issue was not waived in a footnote. That

footnote explained that “Plaintiff declined to argue

this precise point but, because the question is a legal

one and because Defendant had an opportunity to

argue the point and did so, we exercise our discretion

to address the issue.” App.3 n.1 (citations omitted).

That footnote was the entirety of the panel’s

reasoning for considering an issue not raised (or even

accepted) by Baker.

The panel then turned to the merits of the

argument it had posed in its pre-argument order.

The court first recognized that it was required to

“apply the Arizona law of claim preclusion.” App.2.

Purporting to apply Arizona law, it held that “[c]laim

preclusion does not apply here because the prior

state-court judgment [Baker II] was not ‘on the

merits’” with respect to the State of Arizona. App.2.

It asserted—without citing any Arizona precedents—

that “Arizona Revised Statutes section 31-201.01(L)

defines the scope of the State’s waiver of sovereign

immunity for suits like Plaintiff’s state action” and

that Baker II had been dismissed because “the State

had not waived its sovereign immunity.” App.3-4.

Having concluded that the dismissal was based

on sovereign immunity, it held that “[t]he judgment

was thus not ‘on the merits. Ruiz [v. Snohomish Cty.

Pub. Util. Dist.], 824 F.3d [1161,] at 1164-66 (9th

Cir. 2016); cf. F.D.I.C. v. Meyer, 510 U.S. 471, 475

13

(1994) (‘Sovereign immunity is jurisdictional in

nature.’).” App.4.

Judge O’Scannlain dissented. He first objected to

the consideration of the issues raised sua sponte by

the panel, noting that “Baker never argued, either at

the district court or before this Court, that the prior

state court judgment was not an adjudication on the

merits as to the State.” App.4 (O’Scannlain, J.,

dissenting). “In fact, even in open court, Baker’s

counsel conceded that the issue was never raised and

did not even attempt to make the argument, despite

the Court’s invitations. In respectful disagreement

with the majority’s statement in footnote 1, I am

reluctant to overlook Baker’s waiver, and thus I

respectfully dissent.” App.4.

Judge O’Scannlain also dissented on the merits:

“In any event, I am persuaded that Ryan, in his

official capacity, was in privity with the State. Ariz.

Downs v. Super. Ct. of Ariz., Maricopa Cty., 623 P.2d

1229, 1232 (Ariz. 1981).” App.4. “Baker sought the

same injunctive relief against the State that he now

seeks against Ryan. Indeed, at oral argument,

Baker’s counsel even conceded that there was

privity. Furthermore, Baker’s claims stem from

identical facts, and the complaints in both suits are

virtually identical.” App.4-5.

5. Rehearing Petition

The State filed a petition for rehearing on May 4,

which raised both the impropriety of deciding an

argument never raised by Baker and the error of the

majority’s decision on the merits.

14

The panel took only two days to deny the petition

without explanation on May 6. App.22-23, 89. Judge

O’Scannlain would have granted it. App.23.

6. Sineneng-Smith

Mandate

And

Issuance

Of

The

The day after the Ninth Circuit denied the State’s

petition for rehearing, this Court released its

unanimous decision in Sineneng-Smith. The State

promptly filed a 28(j) letter raising Sineneng-Smith

the same day. App.89.

The Ninth Circuit took no action in response to

Petitioner’s 28(j) letter, however, and instead issued

its mandate without comment on May 14. App.24,

89.

The State now seeks review and relief in this Court

based on Sineneng-Smith.

REASONS FOR GRANTING THE WRIT

I.

THIS COURT SHOULD SUMMARILY

REVERSE UNDER SINENENG-SMITH

During the exact period that this Court was

deciding Sineneng-Smith, the Ninth Circuit was

engaged in committing the very same error that this

Court unanimously condemned. Indeed, the court of

appeal’s departure from the bedrock principles of

federal court procedure and the adversarial system is

nearly identical to that in Sineneng-Smith save for a

few important distinctions—all of them making the

error more egregious here.

This Court should therefore summarily reverse in

light of Sineneng-Smith.

The Ninth Circuit’s

decision cannot be reconciled with that decision and

its error is accordingly patent.

Indeed, the

15

usurpation of the ordinary adversarial system is

even worse here because:

(1) the court never

afforded the State an opportunity to brief the issue

that it injected into the case sua sponte and decided

in Baker’s favor, (2) unlike Sineneng-Smith, Baker

never actually agreed to advance the arguments

conceived by the panel majority despite the

majority’s substantial pressure to do so, (3) the panel

scarcely even attempted to explain its departure

from the bedrock principles of our adversarial

system, (4) the issue was one of state law, and (5) it

arose in the prison-litigation context, where

Congress has attempted to alleviate the burdens on

the states, not to add to them.

Moreover, the court of appeals badly erred in its

resolution of the state law argument of its own

creation—and is contrary to every state court

decision that has ever reached the issue. Even

worse, the panel decided that issue of Arizona law

purely by reference to federal case law, adding

violation of elementary principles of federalism to its

other manifold errors.

A.

THE NINTH CIRCUIT’S DECISION IS DIRECTLY

CONTRARY TO SINENENG-SMITH

This Court’s unanimous decision in SinenengSmith makes plain that courts of appeals act “well

beyond the pale” when they inject arguments not

raised by the parties into the case and that they

should instead confine themselves to resolving

appeals on grounds that bear a “fair resemblance to

[each] case [as] shaped by the parties.” 140 S. Ct. at

1582.

The Ninth Circuit flouted these principles. Again.

16

It is undisputed that Baker did not raise these

issues in his appellate brief.

Baker’s counsel

conceded as much at oral argument, with a member

of the panel majority observing the forfeiture below

as well. Supra at 11.

Thus, just like Sineneng-Smith, the issues on

which the Ninth Circuit decided the appeal were

ones entirely of its own creation. Indeed, Baker’s

own counsel assumed the opposite in the district

court and never contended that Baker II was

anything other than a judgment on the merits.

Supra at 11.

Nor was this a case where the court of appeals

played only “a modest initiating role.” SinenengSmith, 140 S. Ct. at 1579. The argument on which

Baker prevailed was 100% the invention of the panel

majority. It was not argued by Baker in the district

court or his appellate briefing.

In short, the Ninth Circuit once again effected a

“radical transformation of th[e] case [that] goes well

beyond the pale.” Sineneng-Smith, 140 S. Ct. at

1582-83.

B.

THE NINTH CIRCUIT’S DEVIATION FROM THE

PRINCIPLES OF OUR ADVERSARIAL SYSTEM IS

EVEN MORE EGREGIOUS HERE

The Ninth Circuit’s violation of the “principle of

party presentation” 2 and Sineneng-Smith below is

not merely obvious here, however. It is actually

more egregious in this case for five reasons wholly

aside from the merits.

2

Sineneng-Smith, 140 S. Ct. at 1579.

17

First, unlike in Sineneng-Smith, the parties were

never provided an opportunity to brief the issues

that the court injected into the case. Compare 140 S.

Ct. at 1580-81 with App.31-32. Instead, the court of

appeals only told the parties that they could address

the (ultimately dispositive) issues during their tenminute arguments. App.31-33. The Ninth Circuit

thus not only inserted new issues into the case—it

decided them in a completely unbriefed posture.

That is directly contrary to the ordinary rules of

appellate procedure, under which written briefing is

the primary—and often only—argument presented in

an appeal.

In contrast, in Sineneng-Smith the court of appeals

permitted extensive briefing and then conducted a

second oral argument. 140 S. Ct. at 1580-81. Thus,

even though the Sineneng-Smith panel injected new

issues of its own invention into the mix, it at least

allowed full presentation by parties of those injected

issues. But the court below did no such thing,

permitting the parties only a perfunctory

opportunity at oral argument to address the issues

that the panel had shoehorned into the appeal.

Second, the defendant in Sineneng-Smith at least

eventually agreed to advance the argument invented

by the Ninth Circuit. Id. at 1581 (“True … SinenengSmith’s counsel adopted [the Ninth Circuit’s

argument]….. How could she do otherwise?”).

By contrast, Baker never actually adopted the

panel majority’s argument that Baker II was not a

judgment on the merits against the State of

Arizona—and not for lack of trying. Despite the

judges’ attempt to dragoon Baker’s counsel into

changing her position, she never did. Oral Argument

18

at 2:54; see also App.4 (O’Scannlain, J., dissenting)

(Baker “did not even attempt to make the argument,

despite the Court’s invitations.” (emphasis added)).

Indeed, Baker’s counsel further expressly agreed

with the dissenting judge on one issue, contending

that “I believe there was privity” between the State

and Petitioner Ryan. Oral Argument at 6:05; App.5

(O’Scannlain, J., dissenting) (“[A]t oral argument,

Baker’s counsel even conceded that there was

privity.”); id. (“In any event, I am persuaded that

Ryan, in his official capacity, was in privity with the

State”).

The Ninth Circuit thus granted relief on a basis

never actually argued by Baker.

Third, the Sineneng-Smith panel at least gave a

modest explanation of why it was introducing new

issues into the case, saying that it “determined that

[its] decision would be significantly aided by further

briefing.” United States v. Sineneng-Smith, 910 F.3d

461, 469 (9th Cir. 2008) rev’d 140 S. Ct. 1575 (2020).

In contrast, the panel majority here merely stated

that it was “exercis[ing] [its] discretion to address

the issue” because “the question is a legal one and

because Defendant had an opportunity to argue the

point and did so.” App.3 n.1. It provided no other

rationale for its deviation from ordinary adversarial

procedures.

But the substantial majority of issues that

appellate courts decide are “legal one[s],” so that

rationale would eviscerate Sineneng-Smith and the

principle of party presentation if it alone were

sufficient. And the second part—that “Defendant

had an opportunity to argue the point”—is flimsy

and misleading at best.

Petitioner was never

19

provided an opportunity to brief the issue, and was

merely alerted to the possibility that he should be

prepared to address it in a ten-minute argument (the

shortest time the Ninth Circuit typically provides for

oral arguments).

The panel thus did not even attempt to point to any

“extraordinary circumstances [that would have]

justified the panel’s takeover of the appeal.”

Sineneng-Smith, 140 S. Ct. at 1581. Instead, the

circumstances of the appeal were distinctly ordinary:

a question of law was presented and the panel did

not completely blindside the Petitioner (though it did

deny him any opportunity to brief the issue predecision).

Fourth, the panel here was deciding an issue of

state—not federal—law. As to the latter, federal

courts have more of a role to play in shaping what

the law should be. That role is still bound by the

ordinary principles of the adversarial system, but it

does not involve the federal courts resolving issues of

law properly reserved to entirely separate court

systems to develop.

Indeed, this Court has stressed that “certification

of novel or unsettled questions of state law” is often

appropriate so that “federal court[s] may save time,

energy, and resources and help build a cooperative

judicial federalism.” Arizonans for Official English

v. Arizona, 520 U.S. 43, 77 (1997) (cleaned up). And

as explained infra at 20-25, the dispositive issue here

is at best a “novel or unsettled” question of Arizona

law—with all available state-law precedents actually

directly contrary to the Ninth Circuit’s decision. The

Ninth Circuit hardly served the interests of

“cooperative federalism” here by forcefully injecting

20

its own (wrong) interpretation of Arizona state law

into this case.

Fifth, the prison context here makes the panel’s

actions particularly problematic.

Congress

specifically enacted the Prison Litigation Reform Act

(“PLRA”) to address “a sharp rise in prisoner

litigation in the federal courts” and thus “contains a

variety of provisions designed to bring this litigation

under control.” Woodford v. Ngo, 548 U.S. 81, 84

(2006).

In other words, Congress has directed the federal

courts to reduce the burden on states from prison

litigation. Inventing arguments for prisoners that

they did not make—and actually refused to make

even when pressed—is the opposite of what Congress

intended. The prison context thus renders the Ninth

Circuit’s abuse of discretion here even more grave.

C.

THE NINTH CIRCUIT’S DECISION WAS WRONG

AS A MATTER OF STATE LAW

Perhaps unsurprisingly, given the completely

unbriefed nature of the issue, the panel majority

erred in its determination of state law. Badly. And

in a manner that provides powerful evidence of the

wisdom of Sineneng-Smith.

The panel majority quite properly recognized that

key issue was whether “the prior state-court

judgment was … ‘on the merits’” and that it was

required to “apply the Arizona law of claim

preclusion.”

App.2 (emphasis added).

But its

analysis of the critical issue—i.e., whether or not

Baker II was a judgment on the merits under

Arizona law—completely missed the mark. Rather

than cite any actual Arizona law precedents, the

21

panel majority instead cited exclusively federal law

decisions. Specifically, the panel’s reasoning on this

issue, complete with citations was:

Nor was the state court’s judgment

against the State of Arizona “on the

merits.” Arizona Revised Statutes

section 31-201.01(L) defines the scope of

the State’s waiver of sovereign

immunity for suits like Plaintiff’s state

action.

Relevant here, Arizona has

provided that Plaintiff “may not bring a

cause of action . . . unless the complaint

alleges specific facts from which the

court may conclude that the plaintiff

suffered serious physical injury or the

claim is authorized by a federal

statute.” Ariz. Rev. Stat. § 31-201.01(L).

We understand the state court to have

dismissed the action because Plaintiff

did not allege a serious physical injury

and because the State was not a proper

defendant under § 1983. That is, the

State had not waived its sovereign

immunity. The judgment was thus not

“on the merits.” Ruiz, 824 F.3d at 116466; cf. F.D.I.C. v. Meyer, 510 U.S. 471,

475 (1994) (“Sovereign immunity is

jurisdictional in nature.”).

App.3-4.

But there is no indication that the relevant Arizona

statute, A.R.S. § 31-201.01(L), actually implicates

sovereign immunity at all. Nothing in that section’s

text indicates that its limitation on claims is

jurisdictional or based in sovereign immunity. To

22

the contrary, it speaks of prisoners lacking “a cause

of action” for damages. A.R.S. § 31-201.01(L). And

all of the case law addressing it to date has not

treated this provision as implicating sovereign

immunity. Infra at 22-23.

The panel appeared to analogize A.R.S. § 31201.01(L) to the Federal Tort Claims Act, which is a

waiver of the federal government’s sovereign

immunity for torts. App.3-4. But the far better

analogy would have been to 42 U.S.C. § 1997e(e),

which is part of the PLRA. That provision provides

“No Federal civil action may be brought … for

mental or emotional injury suffered while in custody

without a prior showing of physical injury or the

commission of a sexual act.” 42 U.S.C. § 1997e(e).

Thus, much like A.R.S. § 31-201.01(L), section

1997e(e) generally requires physical injury as a

precondition for a prisoner to assert a claim for

damages. And, tellingly, no court appears to have

concluded that this restriction on claims is in any

way jurisdictional or based in sovereign immunity.

Although the Arizona Supreme Court has never

considered whether A.R.S. § 31-201.01(L) is

jurisdictional rather than merits-based, it appears

that every published or unpublished decision of

Arizona courts has concluded it is not. For example:

• In Tripati v. State, Department of Corrections,

16 P.3d 783, 785 (Ariz. App. 2000), the Arizona Court

of Appeals affirmed the dismissal under Arizona

Rule of Civil Procedure 12(b)(6), which—like its

federal counterpart—requires dismissal for “failure

to state a claim upon which relief can be granted.”

23

• In Yokois v. Ryan, 2020 WL 2736514, at *2

(Ariz. App. Mem. Dec. May 26, 2020), the court held

that “[b]ecause the allegations in Yokois’ complaint

did not satisfy the requirements of Section 31201.01(L), the superior court properly dismissed his

complaint for failure to state a claim upon which

relief could be granted.”

• In Shakur v. Ryan, 2017 WL 1150667, at *2

(Ariz. App. Mem. Dec. Mar. 28, 2017), the court

affirmed the dismissal for failure to state a claim.

• In Mach v. State, Arizona Department of

Corrections, 2015 WL 3503446, at *1-*2 (Ariz. App.

Mem. Dec. May 14, 2015), the court also affirmed the

dismissal for failure to state a claim.

Notably, by affirming dismissals under Arizona

Rule 12(b)(6), the courts were necessarily affirming

judgments with claim-preclusive effect under

Arizona law. See, e.g., Gatecliff v. Great Republic

Life Ins. Co., 744 P.2d 29, 33 (Ariz. App. 1987) (“A

12(b)(6) dismissal, unlike dismissal for reasons

enumerated in the other subsections of Rule 12(b),

disposes of the merits and takes res judicata effect”).

In reaching a contrary conclusion, the Ninth

Circuit cited only two cases—bizarrely both federal

law decisions: Ruiz v. Snohomish Cty. Pub. Util.

Dist. No. 1, 824 F.3d 1161, 1163 (9th Cir. 2016) and

FDIC. v. Meyer, 510 U.S. 471, 475 (1994). App.4.

Ruiz notably addressed “[t]he preclusive effect of a

federal-court judgment[, which] is determined by

federal common law.” 824 F.3d at 1164. Similarly,

Meyer addresses whether a Bivens-type action is

available “directly against an agency of the Federal

Government.” 510 U.S. at 473. And the discussion

24

cited on page 475 addressed the Federal Tort Claim

Act.

Neither case has the slightest to do with what

Arizona law provides (at least without some

indication that Arizona law actually parallels federal

law). Instead, the panel’s citation exclusively to

federal precedents to resolve a question of Arizona

law here is not merely patent error; it is also—at

least—mildly contemptuous of Arizona’s sovereignty

and its right to enact laws that diverge from federal

law. This is the sort of paternalistic federal-commonlaw-rules-all approach that previously prevailed

under Swift v. Tyson, 41 U.S. 1 (1842), only to be

disavowed by this Court in Erie Railroad Co. v.

Tompkins, 304 U.S. 64 (1938).

It is hardly too much to ask that when federal

courts resolve issues of Arizona law, they actually

look to Arizona law precedents in the process. That,

notably, is what the district court properly did.

App.13-15.

The panel majority amazingly failed to clear this

exceedingly low hurdle, however. And its failure is

directly

attributable

to

its

Sineneng-Smith

violation—further militating in favor of a summary

reversal. 3

3

Moreover, even if A.R.S. § 31-201.01(L) did implicate

sovereign immunity, that likely would not deprive a resulting

judgment of preclusive effect. The Arizona Supreme Court has

interpreted provisions of Arizona’s Tort Claims Act regarding

the State’s waiver of sovereign immunity and expressly held

that they were not jurisdictional in nature. Pritchard v.

Arizona, 788 P.2d 1178, 1182 (Ariz. 1990). Instead, it explained

that “nothing in [the affirmative defenses provided] persuades

us that [they] should act to divest a superior court from its

25

The panel’s apparent analogy to the Federal Tort

Claim Act is particularly inapt because Arizona has

its own tort claim act—and A.R.S. § 31-201.01(L) is

not part of it. Instead, Arizona’s tort claim act is

found at A.R.S. §§ 12-820-820.05. Clouse ex rel.

Clouse v. State, 16 P.3d 757, 760, ¶¶13-14 (Ariz.

2001).

The panel also completely failed to cite or address

Arizona Rule of Civil Procedure 41(b), even though

the district court had. App.14-15. That rule—not

inapposite federal case law—is what actually governs

claim preclusion under Arizona law.

All of these deficiencies in the Ninth Circuit’s

reasoning exemplify why the ordinary rule of party

presentation, as reiterated in Sineneng-Smith, is

supposed to govern nearly all cases. All of these

errors were easily avoided—and would necessarily

have been avoided if the Ninth Circuit would have

simply confined itself to the actual issues raised by

Baker.

The court of appeal’s manifest errors in deciding

the unbriefed/unraised state law issue thus further

militates in favor of reversal.

general power to adjudicate cases arising under the common

laws.” Id. at 1181; see also Lee v. Arizona, 242 P.3d 175, 178,

¶10 (Ariz. App. 2010) (finding no reason “that the logic of our

supreme court’s holding in Pritchard should not apply equally

to the current version of” A.R.S. § 12-821.01)). Pritchard thus

further undermines the panel’s apparent analogy to the Federal

Tort Claims Act, under which a notice of claim is a

“jurisdictional hurdle.” Dyniewicz v. United States, 742 F.2d

484, 485 (9th Cir. 1984).

26

D.

A SUMMARY REVERSAL IS WARRANTED HERE

Because the Ninth Circuit’s decision is plainly

contrary to this Court’s emphatic and unanimous

decision Sineneng-Smith, this Court should

summarily reverse. The court of appeal’s sua sponte

injection of new issues, which it ultimately decided in

favor of Baker despite his unwillingness to raise

them,

directly

contravenes

Sineneng-Smith.

Moreover, as explained by Sineneng-Smith, the

Ninth Circuit approach here is one that “has so far

departed from the accepted and usual course of

judicial proceedings … as to call for an exercise of

this Court’s supervisory power.” S. Ct. R. 10(a). As

in Sineneng-Smith, the Ninth Circuit’s “radical

transformation of this case goes well beyond the

pale.” 140 S. Ct. at 1581-52.

A summary reversal here would provide beneficial

guidance to federal courts and make plain that this

Court meant what it emphatically expressed in

Sineneng-Smith. Instead, the court of appeals here,

to the extent that it considered Sineneng-Smith at

all, likely considered it inapposite and one-off. A

swift summary reversal closely on the heels of

Sineneng-Smith would make clear that the principles

underlying that decision are to be applied faithfully

in all cases.

This case is also an ideal vehicle to provide that

guidance. As explained above, the Ninth Circuit’s

decision here is even more egregious than in

Sineneng-Smith, and this case provides an excellent

vehicle to explain where violations of the principle of

party presentation are (as here) particularly

unwarranted. Indeed, the case below is a veritable

“perfect storm” of why federal courts should not

27

deviate from the ordinary rules of the adversarial

system.

For all of these reasons, this Court should

summarily reverse in light of Sineneng-Smith.

II. ALTERNATIVELY, THIS COURT SHOULD

GVR IN LIGHT OF SINENENG-SMITH

Alternatively, this Court should grant, vacate and

remand in light of Sineneng-Smith if it does not

summarily reverse. There is no indication that the

Ninth Circuit ever considered that decision, which

was released after both its decision and its order

denying rehearing. Nor it did ever release any other

non-ministerial order following release of SinenengSmith. And Sineneng-Smith directly bears on the

approach the Ninth Circuit took—by making

manifest its impropriety.

Thus, at a bare minimum, this case should thus be

returned to the Ninth Circuit for it to evaluate

Sineneng-Smith in the first instance.

CONCLUSION

The petition for certiorari should be granted, and

the judgment below should be summarily reversed,

or vacated and the case remanded in light of

Sineneng-Smith.

28

Respectfully submitted.

MARK BRNOVICH

Attorney General

JOSEPH A. KANEFIELD

Chief Deputy and

Chief of Staff

BRUNN W. ROYSDEN III

Solicitor General

DREW C. ENSIGN

Deputy Solicitor General

Counsel of Record

DANIEL P. SCHAACK

CHRISTOPHER P. WHITE

ROBERT J. MAKAR

Assistant Attorneys

General

OFFICE OF THE ARIZONA

ATTORNEY GENERAL

2005 N. Central Ave.

Phoenix, AZ 85004

(602) 542-5025

Drew.Ensign@azag.gov

Counsel for Petitioner