Petition for Writ of Certiorari — Don Barnes, Sheriff, Orange County, California, et al., Petitioners v. Melissa Ahlman, et al.

No. 22-______

In the Supreme Court of the United States

DON BARNES, SHERIFF AND ORANGE COUNTY,

CALIFORNIA, PETITIONERS

v.

MELISSA AHLMAN, ET AL., RESPONDENTS

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

LEON J. PAGE

County Counsel

LAURA D. KNAPP

Supervising Deputy

County Counsel

D. KEVIN DUNN

Senior Deputy

County Counsel

REBECCA S. LEEDS

Senior Deputy

County Counsel

KAYLA N. WATSON

Deputy County Counsel

County of Orange

Office of the County Counsel

333 West Santa Ana

Boulevard, Suite 407

Santa Ana, California 92701

Telephone: (714) 834-3300

Facsimile: (714) 834-2359

kevin.dunn@coco.ocgov.com

QUESTION PRESENTED

Whether a preliminary injunction issued under

the Prison Litigation Reform Act (“PLRA”) and

stayed by this Honorable Court shall evade

appellate review due to the PLRA’s 90-day expiration

provision.

i

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT

Petitioners are DON BARNES, SHERIFFCORONER for Orange County, California and

ORANGE COUNTY, CALIFORNIA.

Respondents are MELISSA AHLMAN, DANIEL

KAUWE, MICHAEL SEIF, JAVIER ESPARZA,

PEDRO BONILLA, CYNTHIA CAMPBELL,

MONIQUE CASTILLO, MARK TRACE, CECIBEL

CARIDAD ORTIZ, and DON WAGNER, on behalf of

themselves and all others similarly situated, et al.

ii

TABLE OF CONTENTS

Page

Question Presented ........................................................................ i

Parties to the Proceedings and Rule 29.6 Statement .................. ii

Opinions Below .............................................................................. 1

Jurisdiction .................................................................................... 2

Statutory Provisions Involved ...................................................... 2

Statement ....................................................................................... 2

Reasons for Granting the Petition ................................................ 4

Argument ....................................................................................... 6

I. Review Is Necessary Because the Ninth Circuit’s

Ruling Renders This Court’s Emergency Stay Order A

Legal Nullity ........................................................................ 6

A. The Case Is Not Moot Because This Court’s Stay

Suspended the Expiration of the Preliminary

Injunction ....................................................................... 6

B. Miller v. French Has No Applicability Here .............. 10

II. Review Is Necessary to Resolve Judicial Error That

Prevents Petitioners from Obtaining Appellate

Review on the Merits and Leaves Them in Constant

Threat of a Renewed Preliminary Injunction .................. 13

III. This Case Presents An Important and Unique

Opportunity to Resolve These Urgent Questions ............ 16

CONCLUSION............................................................................. 17

Appendix A — Supreme Court order granting Petitioners’

application for emergency stay of District Court’s

May 26, 2020 order granting preliminary injunction

(August 5, 2020) ...………………………………………………1a

Appendix B — Court of Appeals’ order dismissing

Petitioners’ consolidated appeals (December 10, 2021)...…1b

Appendix C — District Court order denying Petitioners’

ex parte application to dissolve preliminary injunction

order (June 26, 2020) ………………………………..…………1c

Appendix D — Court of Appeals’ order denying Petitioners’

emergency motion to stay preliminary injunction order

(June 17, 2020) ………………………………………….………1d

iii

TABLE OF CONTENTS (continued)

Page

Appendix E — District Court order granting Respondents’

preliminary injunction and provisional class

certification (May 26, 2020) ……………………..……………1e

Appendix F — Prison Litigation Reform Act of 1995 (PLRA):

42 U.S.C. § 1997e………………………………………………..1f

Appendix G — Prison Litigation Reform Act of 1995 (PLRA):

18 U.S.C. § 3626 ...……….……………………………………..1g

TABLE OF AUTHORITIES

Page

Cases

Ahlman v. Barnes,

20 F.4th 489 (9th Cir. December 10, 2021)................ 4, 10, 14

Air Line Pilots Ass’n, Intern. v. UAL Corp.,

897 F.2d 1394 (7th Cir. 1990) ................................................. 2

Barnes v. Ahlman,

591 U.S. ____; 140 S. Ct. 2620 (2020) .................................... 3

High Plains Harvest Church v. Polis,

592 U.S. ____; 141 S. Ct. 527 (2020) .................................... 15

In re McKenzie,

180 U.S. 536 (1901) ................................................................. 7

Isbrandtsen Co. v. Johnson,

343 U.S. 779 (1952) ................................................................ 9

Jones v. Bock,

549 U.S. 199 (2007) ............................................................... 12

Maney v. Brown,

516 F.Supp.3d 1161 (D.Ore. February 2, 2021) .................. 15

Mayweathers v. Terhune,

136 F.Supp.2d 1152 (E.D. Cal. 2004) ................................... 15

Miller v. French,

530 U.S. 327 (2000) ............................................... 5, 10, 11, 13

Nken v. Holder,

556 U.S. 418 (2009) ................................................... 6, 8, 9, 12

iv

TABLE OF AUTHORITIES (continued)

Page

Roman Catholic Diocese of Brooklyn v. Cuomo,

592 U.S. ____; 141 S. Ct. 63 (2020) ...................................... 15

Scripps–Howard Radio, Inc. v. FCC,

316 U.S. 4 (1942) ................................................................. 7, 9

South Bay United Pentecoastal Church v. Newsom,

592 U. S. ____; 140 S. Ct. 1613 (2021) ................................... 5

Southern Pacific Terminal Co. v. ICC,

219 U.S. 498 (1911) ............................................................... 13

Swain v. Junior,

958 F.3d 1081 (5th Cir. 2020) ............................................... 14

Tandon v. Newsom,

592 U.S. ____; 141 S. Ct. 1294 (2021) ............................. 5, 15

Valentine v. Collier,

956. F.3d 797 (6th Cir. 2020) ................................................ 14

Weinstein v. Bradford,

423 U.S. 147 (1975) (per curiam) ......................................... 14

Woodford v. Ngo,

548 U.S. 81 (2006) ............................................................. 6, 12

Statutes

18 U.S.C. § 3626(b) ...................................................................... 11

28 U.S.C. § 1254 ............................................................................. 2

28 U.S.C. § 1651(a) ("All Writs Act") ............................................ 7

28 U.S.C. § 2101(e) ........................................................................ 2

Other Authorities

Ahlman v. Barnes,

No. 20-55568, 2020 WL 3547960 (9th Cir. June 17, 2020) ... 3

Chatman v. Otani,

2021 WL 2941990 (D.Haw. July 13, 2021) .......................... 15

Criswell v. Boudreaux,

2020 WL 5235675 (E.D.Cal. September 2, 2020) ................ 15

v

In the Supreme Court of the United States

No. 22-______

DON BARNES, SHERIFF AND ORANGE COUNTY,

CALIFORNIA, PETITIONERS

v.

MELISSA AHLMAN, ET AL., RESPONDENTS

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Orange County Sheriff-Coroner Don Barnes and

the County of Orange (“Petitioners”), respectfully

petition for a writ of certiorari to review the order

issued by the United States Court of Appeals for the

Ninth Circuit on December 10, 2021.

OPINIONS BELOW

The opinion of the United States Supreme Court

granting emergency stay is found at Barnes v.

Ahlman, 140 S. Ct. 2620 (2020) and is reprinted in

Appendix A.

The opinion of the Ninth Circuit is found at

Ahlman v. Barnes, 20 F.4th 489 (9th Cir. December

10, 2021) and is reprinted in Appendix B.

1

2

JURISDICTION

The Ninth Circuit entered an order dismissing

the underlying appeal as moot on December 10,

2021. This petition is timely based on Rule 13(1) of

this Court. This Court has jurisdiction under 28

U.S.C. § 1254. It is not a requirement of certiorari to

review an order of a federal court that such order be

a final decision. 28 U.S.C. §§ 1254, 2101(e); Air Line

Pilots Ass’n, Intern. v. UAL Corp., 897 F.2d 1394 (7th

Cir. 1990).

STATUTORY PROVISIONS INVOLVED

The Prison Litigation Reform Act of 1995 (PLRA):

42 U.S.C. § 1997e and 18 U.S.C. § 3626.

STATEMENT

On April 30, 2020, ten inmates at the Orange

County Jail (“Respondents”), filed a putative class

action pursuant to 42 U.S.C. § 1983 against

Petitioners for their alleged failure to combat

COVID-19.

On May 26, 2020, the District Court for the

Central District of California granted Respondents’

provisional class certification and issued a

preliminary injunction under the PLRA, which

required the Petitioners to issue protective measures

that (1) exceeded the then existing CDC guidance for

correctional facilities; (2) jeopardized the Petitioners

ability to safely manage and secure the Orange

County Jail; and (3) increased the likelihood of

transmission of COVID-19 in the Orange County jail.

3

The District Court denied a stay pending appeal, as

did the Ninth Circuit. See Ahlman v. Barnes, No. 2055568, 2020 WL 3547960, at *5 (9th Cir. June 17,

2020). However, the Ninth Circuit sua sponte issued

an immediate remand to the District Court to

determine in the first instance whether changed

circumstances warranted modification or dissolution

of the preliminary injunction.

On June 26, 2020, the District Court on remand

did not dissolve the preliminary injunction and

instead granted Respondents’ request for expedited

discovery.

On July 1, 2020, Petitioners filed a new appeal of

the District Court’s orders on remand in case number

1

20-55668 , and sought another emergency stay,

which the Ninth Circuit denied on July 4, 2020. On

July 21, 2020, 42 Petitioners filed an emergency

application for stay of injunctive relief pending

appeal before this Honorable Court. On August 5,

2020, the emergency application was granted,

staying the preliminary injunction “pending

disposition of the appeal in the United States Court

of Appeals for the Ninth Circuit and disposition of

the petition for a writ of certiorari, if such writ is

timely sought.” Barnes v. Ahlman, 591 U.S. ____; 140

S. Ct. 2620 (2020); Appendix A – [USSC Order.]

On August 25, 2020, Respondents filed a motion

to dismiss the appeal as moot, which Petitioners

opposed on September 4, 2020. The Ninth Circuit

did not rule on Respondents’ motion to dismiss the

appeal as moot before oral argument.

1

On October 15, 2020, the two appeals were consolidated into

case no. 20-55568.

4

On August 31, 2020, Petitioners filed their

opening brief. On September 28, 2020, Respondents

filed their response to Petitioners’ opening brief, and

on October 19, 2020, Petitioners filed their reply

brief.

Oral argument was held on September 1, 2020,

and on December 10, 2021, the Ninth Circuit ruled

that under the PLRA, the preliminary injunction

expired 90 days after its issuance, despite this

Court’s stay order issued on August 5, thus

rendering the appeal moot. Ahlman v. Barnes, 20

F.4th 489 (9th Cir. December 10, 2021); Appendix B

– [Dkt. 99-1]. The Ninth Circuit held that “because

the PLRA provides that any preliminary injunction

automatically expires 90 days after being issued

(absent further finalization), the injunction and

provisional class certification were no longer in effect

and the appeal was moot.” Id. The Ninth Circuit

rejected Petitioners’ contention that the Supreme

Court’s emergency stay of the preliminary injunction

saved this appeal from mootness, as the stay “did not

toll the 90-day limit unambiguously detailed in the

PLRA.” Ibid.

Pursuant to Supreme Court Rule 13, the deadline

to file a petition for writ of certiorari is March 10,

2022, therefore this Petition is timely.

REASONS FOR GRANTING THE PETITION

By its order dismissing this appeal as moot, the

Ninth Circuit established a rule that allows a

preliminary injunction erroneously issued by a

District Court under the PLRA to always evade

5

appellate review, even after a stay issued by this

Honorable Court.

Certiorari is further warranted here because the

Ninth Circuit misinterpreted the PLRA’s automatic

stay provision and this Court’s holding in Miller v.

French, 530 U.S. 327 (2000), finding that federal

courts, including this Honorable Court, are

prohibited from exercising their inherent authority

to stay a preliminary injunction under the PLRA

pending their review. In addition, irrespective of

whether the preliminary injunction expired in this

case, this is clearly a matter that is a capable of

repetition and evading review.

By granting certiorari here, this Court has a

unique opportunity to settle an issue of critical

national importance and to determine whether a

PLRA preliminary injunction escapes appellate

review because of the PLRA’s 90-day expiration

clause.

Custodial facilities face a particularly extreme

dilemma in cases such as this, where elected officials

accountable to the public, who are currently

2

combatting the COVID-19 pandemic on the ground,

are directly undermined and hamstrung by

erroneous and, ultimately, unreviewable district

court orders that directly threaten their ability to

protect the health and safety of the inmates

committed to their care. Cf. South Bay United

Pentecoastal Church v. Newsom, 592 U.S. ____; 140

S. Ct. 1613 (2021) (Roberts, J., concurring.) This

2

This Court has on at least five occasions, summarily rejected

the Ninth Circuit’s analysis during the COVID-19 pandemic,

and for the reasons addressed herein, this Court should

similarly do so here.

6

Court’s decision would determine what appellate

remedies are available to custodial institutions under

the PLRA and would reenforce the PLRA’s purpose of

“reduc[ing] the quantity and improv[ing] the quality

of prisoner suits.” Woodford v. Ngo, 548 U.S. 81, 9394 (2006).

ARGUMENT

I.

REVIEW IS NECESSARY BECAUSE THE NINTH

CIRCUIT’S RULING RENDERS THIS COURT’S

EMERGENCY STAY ORDER A LEGAL NULLITY

A. The Case Is Not Moot Because This Court’s Stay

Suspended the Expiration of the Preliminary

Injunction

This Court issued an emergency order staying the

preliminary injunction to allow the District Court’s

ruling to be reviewed on the merits by the Ninth

Circuit. The Ninth Circuit sidestepped this

responsibility, misinterpreted this Court’s authority

to issue a stay, misinterpreted the effect of this

Court’s stay order, and incorrectly identified the

issue as moot. As addressed below, the issue is not

moot because the stay issued by this Court was

interposed before the expiration of the 90-day period

thereby tolling (i.e., suspending) the 90-day period to

allow the Ninth Circuit the necessary time to review

the legality of the preliminary injunction.

In Nken v. Holder, 556 U.S. 418 (2009), this Court

had occasion to discuss federal appellate courts’

authority to issue stays.

7

An appellate court’s power to hold an order in

abeyance while it assesses the legality of the

order has been described as “inherent,”

preserved in the grant of authority to federal

courts to “issue all writs necessary or

appropriate in aid of their respective

jurisdictions and agreeable to the usages and

principles of law,” All Writs Act, 28 U.S.C. §

1651(a). See In re McKenzie, 180 U.S. 536, 551,

(1901).

The power to grant a stay pending review has

been described as part of a court's “traditional

equipment for the administration of justice.” Id., at

427, citing Scripps–Howard Radio, Inc. v. FCC, 316

U.S. 4, 9-10 (1942). That authority was “firmly

imbedded in our judicial system,” “consonant with

the historic procedures of federal appellate courts,”

and “a power as old as the judicial system of the

nation.” Id., citing Scripps-Howard, supra, at 13, 17.

This Court went on to describe the purpose of

such stays in furtherance of justice:

A reviewing court must bring considered

judgment to bear on the matter before it, but

that cannot always be done quickly enough to

afford relief to the party aggrieved by the

order under review. The choice for a reviewing

court should not be between justice on the fly

or participation in what may be an “idle

ceremony.” The ability to grant interim relief

is accordingly not simply “[a]n historic

procedure for preserving rights during the

pendency of an appeal,” but also a means of

ensuring that appellate courts can responsibly

fulfill their role in the judicial process.

8

Nken at 427, [internal citations omitted].

This Court has stated that “a stay ‘simply

suspend[s] judicial alteration of the status quo” Id. at

429. The status quo at the time this Honorable

Court issued its stay was that there was a

preliminary injunction issued against Petitioners as

they worked to combat the burgeoning COVID-19

pandemic. This Court undoubtedly had the

“inherent” authority to issue a stay to, among other

things, hold the operation of the PLRA’s 90-day

expiration period in abeyance, so that the legality of

the injunction could be reviewed by the Ninth Circuit

Court of Appeals, and by this Court, if necessary. In

this way, the stay operates akin to a tolling of the

underlying statute “because the appellate court lacks

sufficient time to decide the merits.” Nken at 432.

Just as in Nken, where this Court found that “[a]n

alien seeking a stay of removal pending adjudication

of a petition for review does not ask for a coercive

order against the Government, but rather for the

temporary setting aside of the source of the

Government’s authority to remove.” Here, the stay

likewise suspended the operation of PLRA section

3626(a)(2)’s expiration clause to afford appellate

3

review. “The whole idea is to hold the matter under

review in abeyance because the appellate court lacks

sufficient time to decide the merits.” Id.

3

After significant discussion comparing and contrasting stays

and injunctions, the opinion in Nken concludes, “Whether such

a stay might technically be called an injunction is beside the

point…” Thus, even if this Court’s stay could be viewed as an

injunction against the operation of the 90-day expiration it

makes little difference in legal effect.

9

It takes time to decide a case on appeal.

Sometimes a little; sometimes a lot. “No court

can make time stand still” while it considers

an appeal, and if a court takes the time it

needs, the court’s decision may in some cases

come too late for the party seeking review.

That is why it “has always been held, ... that

as part of its traditional equipment for the

administration of justice, a federal court can

stay the enforcement of a judgment pending

the outcome of an appeal.” A stay does not

make time stand still, but does hold a ruling in

abeyance to allow an appellate court the time

necessary to review it.

Nken, supra, at 421, [internal citations omitted].

Moreover, nothing in 18 U.S.C. § 3626 indicates a

Congressional intent to deprive federal courts of

their long-standing inherent authority to issue stays

to preserve a matter for appellate review. This Court

has specifically acknowledged the “presumption

favoring the retention of long-established and

familiar principles, except when a statutory purpose

to the contrary is evident,” Nken at 433, citing

Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952).

“[T]he Court is loath to conclude that Congress

would, ‘without clearly expressing such a purpose,

deprive the Court of Appeals of its customary power

to stay orders under review’.” Id. Nken reiterated

that “Congress’s failure expressly to confer the

authority in a statute allowing [a stay for] appellate

review should not be taken as an implicit denial of

that power.” Id. at 426. “The search for significance

in the silence of Congress is too often the pursuit of a

mirage.” Scripps-Howard, supra, at 11.

10

In sum, the Ninth Circuit’s ruling cannot be

harmonized with either the precedent of this Court

or the effect of this Court’s emergency stay order.

The Ninth Circuit’s decision finding the appeal moot

thus suggests that this Court engaged in the idle act

of intervening with an emergency stay order, and

inviting this Petition for Writ of Certiorari, while not

actually preserving the underlying issue (i.e.,

whether the preliminary injunction was erroneously

granted) for this Court’s ultimate review. Because

the Ninth Circuit clearly erred, certiorari should be

granted.

B. Miller v. French Has No Applicability Here

The Ninth Circuit relied largely on this Court’s

prior decision in the case of Miller v. French, 530

U.S. 327 (2000). It went so far as to interpret the

case to hold that the courts have no power to

effectively stay the application of a PLRA

preliminary injunction to review its merits. Ahlman

v. Barnes, 20 F.4th 489, 494 (9th Cir. December 10,

2021). Yet, Miller is distinguishable as it addresses

an entirely separate statutorily mandated automatic

stay provision of the PLRA and has no relevance

here.

Miller v. French involved a 1975 district court

injunction issued against Indiana prison authorities,

an injunction that remained in effect to remedy

violations of the Eighth Amendment regarding

conditions of confinement. Congress subsequently

enacted the PLRA, which sets a standard for the

entry and termination of prospective relief in civil

actions challenging conditions in correctional

11

facilities. Specifically, 18 U.S.C. § 3626(b) allows a

defendant to move to terminate prospective relief

and subsection(e)(2) dictates that when a motion to

terminate is filed, it “shall operate as a stay” of the

injunction beginning 30 days after the motion is filed

and ending when the court rules on the motion.

In Miller, prison officials filed a motion to

terminate the remedial order under section 3626(b) ,

triggering the stay of the injunction 30 days later.

Respondent prisoners then moved to enjoin the

operation of the automatic stay. The District Court

granted the prisoners’ motion and enjoined the stay.

The State appealed, and the United States

intervened to defend section 3626(e)(2)’s

constitutionality. This Court ultimately determined

that, given the clear, statutory intent to provide

prison officials with an automatic stay beginning 30

days after filing a section 3626(b) motion, a court

could not enjoin such a stay unless and until the

court made the findings required under subsection

(b)(3).

The legal issue in Miller is entirely absent here.

Neither party in this case filed a motion under

section 3626(b). Section 3626(e) of the PLRA is not

even remotely at issue in this case, as there is no

section 3636(b) motion to terminate injunctive relief.

Indeed, no automatic stay under section 3626(e)(2)

never existed in this case. Miller simply cannot be

the decisive precedent on which this case turns, and

12

yet it was the fundamental basis for the Ninth

4

Circuit’s ruling.

In an effort to address the large number of

prisoner complaints filed in federal court, Congress

enacted the Prison Litigation Reform Act of 1995

(“PLRA”), 110 Stat. 1321-71, as amended, 42 U.S.C. §

1997e, et seq. Among other reforms, the PLRA

mandates early judicial screening of prisoner

complaints [Jones v. Bock, 549 U.S. 199, 202 (2007)]

and attempts to eliminate unwarranted federal court

interference with the administration of prisons.

Woodford v. Ngo, 548 U.S. 81, 93–94 (2006).

Nothing in the PLRA or Miller can be interpreted

as stripping this Court of its inherent authority to

issue a discretionary stay of a PLRA preliminary

injunction issued against a correctional facility while

5

its merits are considered on appeal. The Miller

Court itself noted that the presumptive applicability

of its inherent authority and warned that parties

should “not lightly assume that Congress meant to

4

Miller also did not address mootness under the PLRA’s 90-day

preliminary injunction expiration provisions in 18 U.S.C.

section 3626(a)(2) nor any exceptions to the mootness doctrine

that may apply. To the extent that this Court finds that Miller

has any applicability, Petitioner respectfully requests this

Court clarify its ruling in Miller in light of the facts and

circumstances of this case.

5

While the Ninth Circuit’s decision sets forth that this Court

has no power to extend the preliminary injunction beyond the

expiration 90-day expiration identified in the PLRA, this Court

did nothing of the sort. As addressed Nken at 421, the stay

order simply held the preliminary injunction in abeyance,

effectively tolling the statute, to allow the Ninth Circuit the

time necessary to review it.

13

restrict the equitable powers of the federal courts.”

Id. at 336. An interpretation that would hamstring

this Court’s ability to stay a preliminary injunction

to consider its merits would contradict the purpose of

the PLRA to limit the burdens of prison litigation on

government agencies.

The Ninth Circuit’s finding that federal courts are

without power to effectively stay the operation of a

preliminary injunction on appeal runs directly afoul

of Congressional intent, discourages review of

injunctions on the merits, and encourages meritless

complaints and preliminary injunctions leaving

elected officials such as the Orange County Sheriff

with no ability to effectively appeal. If the Ninth

Circuit’s ruling stands, prisoners’ counsel will be

incentivized to seek emergency injunctive relief

under the PLRA knowing that, even if stayed, the

emergency injunctive relief will be insulated from

any appellate review on the merits.

II. REVIEW IS NECESSARY TO RESOLVE JUDICAL

ERROR THAT PREVENTS PETITIONERS FROM

OBTAINING APPELLATE REVIEW ON THE MERITS

AND LEAVES THEM IN CONSTANT THREAT OF A

RENEWED PRELIMINARY INJUNCTION

This case squarely presents a controversy capable

of repetition but evading review, thus it qualifies as a

justifiable exception from mootness. A Court may

address an otherwise ostensibly moot issue if it falls

within the “capable of repetition yet evading review”

exception to the mootness doctrine. See Southern

Pacific Terminal Co. v. ICC, 219 U.S. 498, 515

(1911). To apply, a party must demonstrate that “(1)

14

the challenged action [is] in its duration too short to

be fully litigated prior to its cessation or expiration,

and (2) there [is] a reasonable expectation that the

same complaining party [will] be subjected to the

same action again.” Weinstein v. Bradford, 423 U.S.

147, 149 (1975) (per curiam).

Here, both criteria are met. First, the short 90day expiration clause of the PLRA prevented the

Ninth Circuit from reviewing the merits of the

District Court’s order. In fact, the Ninth Circuit

agreed that this element is met. Ahlman v. Barnes,

20 F.4th at 494. It even noted, “[i]t is likely true that

because of the brief duration of a preliminary

injunction under the PLRA, many such appeals (as

here) will not be fully litigated before the injunction

expires.” Id. Second, there is a strong likelihood,

and demonstrated history, of preliminary injunction

orders being sought and granted under the PLRA,

enjoining the Petitioners’ administration of their

custodial facilities. See Gibson v. County of Orange,

United States District Court, C.D. California, March

8, 2021, 2021 WL 860000; Moon v. County of Orange

(Ninth Circuit, October 22, 2021) Not Reported in

Fed. Rptr. 2021 WL 4936945. While the preliminary

injunction may be for a limited period of time, such

injunctions nevertheless hamstring officials and

prevent them from acting with dispatch when

responding to, not only public health emergencies,

but to any dangerous situation that can arise in a

custodial facility that houses violent individuals.

Swain v. Junior, 958 F.3d 1081, 1090 (5th Cir. 2020);

Valentine v. Collier, 956. F.3d 797, 804 (6th Cir.

2020). Each one of these injunctions pose a direct

threat to the safety and security of the inmates and

15

staff who work in any custodial setting. Thus, this

issue is likely to reoccur and evade review.

As with the other COVID-19 cases that this Court

has reviewed, Petitioners here must maintain the

ability to respond quickly to changing CDC guidance.

See Roman Catholic Diocese of Brooklyn v. Cuomo,

592 U.S. ____; 141 S. Ct. 63, 68 (2020); Tandon v.

Newsom, supra, 141 S. Ct 1294, 1297; High Plains

Harvest Church v. Polis, 592 U.S. ____; 141 S. Ct.

527 (2020).

However, due to the Ninth Circuit’s decision, the

findings made by the District Court have not been

reversed and remain existing law of the case. This

increases the likelihood that the same or similar

injunction will be sought and issued. See, e.g.,

Mayweathers v. Terhune, 136 F.Supp.2d 1152, 1153

(E.D.Cal. 2004) (finding that law of the case applied

to support implementing successive identical

preliminary injunctions under the PLRA.) In fact,

the damage resulting from the District Court’s

unreviewed preliminary injunction order has already

metastasized as it has been cited with approval by

other District Courts in issuing similar preliminary

injunctions against other local authorities. See, e.g.,

Criswell v. Boudreaux, 2020 WL 5235675 at *5 fn.3,

*12, *25 (E.D.Cal. September 2, 2020); Maney v.

Brown, 516 F.Supp.3d 1161, 1171 (D.Ore. February

2, 2021); Chatman v. Otani, 2021 WL 2941990 at

*11, *20 (D.Haw. July 13, 2021).

Moreover, the Ninth Circuit has read the

likelihood of recurrence element too narrowly. The

likelihood of the identical injunction being ordered is

irrelevant. The reality is that Petitioners, as public

entities charged with administering a custodial

16

facility, will undoubtedly be sued again under the

PLRA, and, under the current state of the law,

Petitioners are barred from any meaningful

appellate review of a preliminary injunction because

not even a stay by this Court will allow the issue to

reach the Ninth Circuit before the 90-day expiration

period. For Petitioners, the issue is more than

capable of repetition, it is a certainty to repeat.

III. THIS CASE PRESENTS AN IMPORTANT AND

UNIQUE OPPORTUNITY TO RESOLVE THESE

URGENT QUESTIONS

This case, factually and procedurally, presents a

“lightning in a bottle” scenario to resolve the

dysfunction of PLRA preliminary injunctions evading

appellate review. It is an ideal vehicle for this

Honorable Court to establish that defendants in

PLRA litigation have a right to have preliminary

injunctions stayed and subsequently reviewed on the

merits by an appellate court. Without this, the

stringent requirements of the PLRA for preliminary

injunctive relief, the intent of Congress, and this

Court’s stay, are rendered a nullity.

//

//

//

//

//

17

CONCLUSION

Petitioners respectfully request that this

Honorable Court grant this Petition for Writ of

Certiorari.

Respectfully submitted.

LEON J. PAGE

County Counsel

LAURA D. KNAPP

Supervising Deputy

County Counsel

D. KEVIN DUNN

Senior Deputy

County Counsel

REBECCA S. LEEDS

Senior Deputy

County Counsel

KAYLA N. WATSON

Deputy County Counsel

Dated: March 7, 2022

By: __/S/_____________________________

D. Kevin Dunn, Senior Deputy

Attorneys for Petitioners

DON BARNES, SHERIFF and

ORANGE COUNTY, CALIFORNIA