Petition for Writ of Certiorari — Patricia Guerrero, Chief Justice, Supreme Court of California, et al., Petitioners v. Stephen Moreland Redd
Supreme Court briefFeb 28, 2025
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IN THE
Supreme Court of the United States
PATRICIA GUERRERO, CHIEF JUSTICE OF CALIFORNIA,
AND KIMBERLY MENNINGER, JUDGE OF THE SUPERIOR
COURT OF CALIFORNIA, COUNTY OF ORANGE
Petitioners,
v.
STEPHEN MORELAND REDD,
Respondent.
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
PETITION FOR A WRIT OF CERTIORARI
RYAN AZAD
VANNALEE CAYABYAB
GIBSON, DUNN &
CRUTCHER LLP
One Embarcadero Center,
Suite 2600
San Francisco, CA 94111
THEODORE J. BOUTROUS, JR.
Counsel of Record
JULIAN W. POON
PATRICK J. FUSTER
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
(213) 229-7000
tboutrous@gibsondunn.com
Counsel for Petitioners
QUESTION PRESENTED
Whether, under United States v. Munsingwear,
Inc., 340 U.S. 36 (1950), a court of appeals’ decision
should be vacated because the appeal became moot by
happenstance while a petition for rehearing was pending, as the D.C., Fourth, Eighth, and Eleventh Circuits hold, or instead can be left in place because further review is discretionary, as the Second, Third,
Ninth, and Tenth Circuits hold.
ii
RELATED PROCEEDINGS
United States District Court (C.D. Cal.):
Redd v. Cantil-Sakauye
No. 16-cv-1540 (Mar. 31, 2021)
United States Court of Appeals (9th Cir.):
Redd v. Guerrero
No. 21-55464 (Oct. 20, 2023)
iii
TABLE OF CONTENTS
Page
OPINIONS BELOW .................................................... 1
JURISDICTION .......................................................... 2
INTRODUCTION ........................................................ 2
STATEMENT .............................................................. 5
REASONS FOR GRANTING THE PETITION ....... 13
I. Circuits Disagree About The Standard For
Vacatur When An Appeal Becomes Moot
After A Panel Issues Its Opinion......................... 15
II. The Question Presented Is Important And
Recurring .............................................................. 20
III. The Decision Below Should Be Vacated.............. 24
CONCLUSION .......................................................... 32
iv
TABLE OF APPENDICES
Page
APPENDIX A:
Order of the United States Court of
Appeals for the Ninth Circuit Dismissing
Appeal as Moot, Declining to Vacate Panel
Opinion, and Denying Rehearing
(Dec. 11, 2024) ..................................................... 1a
APPENDIX B:
Opinion of the United States Court of
Appeals for the Ninth Circuit
(Oct. 20, 2023) ................................................... 45a
APPENDIX C:
Order of the District Court for the
Central District of California Granting
Motion to Dismiss
(Mar. 31, 2021) .................................................. 94a
v
TABLE OF AUTHORITIES
Cases
Page(s)
Acheson Hotels, LLC v. Laufer,
601 U.S. 1 (2023) .................................................. 26
Alvarez v. Smith,
558 U.S. 87 (2009) .......................................... 24, 26
American Family Life Assurance Co. of
Columbus v. FCC,
129 F.3d 625 (D.C. Cir. 1997) .............................. 27
In re Anderson,
69 Cal. 2d 613 (1968) ............................................. 6
Arizonans for Official English v. Arizona,
520 U.S. 43 (1997) ................................................ 25
Armster v. U.S. District Court for Central
District of California,
806 F.2d 1347 (9th Cir. 1986) .............................. 18
Ayestas v. Davis,
584 U.S. 28 (2018) ................................................ 32
Azar v. Garza,
584 U.S. 726 (2018) .............................. 4, 15, 26, 27
Barker v. Wingo,
407 U.S. 514 (1972) ........................................ 30, 31
Bastien v. Office of Senator Ben
Nighthorse Campbell,
409 F.3d 1234 (10th Cir. 2005) ............................ 17
vi
Cases (continued)
Page(s)
Bell v. Thompson,
545 U.S. 794 (2005) .............................................. 21
Black Mesa Water Coalition v. Jewell,
797 F.3d 1185 (9th Cir. 2015) .............................. 18
Brewer v. Swinson,
837 F.2d 802 (8th Cir. 1988) ................................ 16
Brown v. Allen,
344 U.S. 443 (1953) ................................................ 4
Camreta v. Greene,
563 U.S. 692 (2011) ........................ 4, 24, 26, 27, 28
Castle Rock v. Gonzales,
545 U.S. 748 (2005) ........................................ 10, 30
Chapman v. Doe,
143 S. Ct. 857 (2023) ............................................ 27
Claiborne v. United States,
551 U.S. 87 (2007) ................................................ 26
Clarke v. United States,
915 F.2d 699 (D.C. Cir. 1990) .............................. 15
Crespin v. Ryan,
51 F.4th 819 (9th Cir. 2022) ................................ 18
Culley v. Marshall,
601 U.S. 377 (2024) .............................................. 31
vii
Cases (continued)
Page(s)
Cunningham v. District Attorney’s Office for
Escambia County,
592 F.3d 1237 (11th Cir. 2010) ............................ 31
Deakins v. Monaghan,
484 U.S. 193 (1988) .............................................. 26
Dickens v. Ryan,
740 F.3d 1302 (9th Cir. 2014) .............................. 18
Dickens v. Ryan,
744 F.3d 1147 (9th Cir. 2014) ........... 11, 18, 19, 20,
22, 23, 27, 28
District Attorney’s Office for Third Judicial
District v. Osborne,
557 U.S. 52 (2009) ................................................ 31
Eisai Co. v. Teva Pharmaceuticals USA, Inc.,
564 U.S. 1001 (2009) ............................................ 27
Experimental Holdings, Inc. v. Farris,
503 F.3d 514 (6th Cir. 2007) ................................ 30
In re Ghandtchi,
705 F.2d 1315 (11th Cir. 1983) ............................ 17
Gideon v. Wainwright,
372 U.S. 335 (1963) .............................................. 30
In re Grand Jury Investigation,
399 F.3d 527 (2d Cir. 2005) ........................... 17, 18
Halo Electronics, Inc. v. Pulse Electronics, Inc.,
579 U.S. 93 (2016) ................................................ 24
viii
Cases (continued)
Page(s)
Hirschfeld v. Bureau of Alcohol, Firearms,
Tobacco & Explosives,
14 F.4th 322 (4th Cir. 2021) .......................... 16, 28
Humphreys v. DEA,
105 F.3d 112 (3d Cir. 1996) ................................. 17
Indiana State Police Pension Trust v.
Chrysler LLC,
558 U.S. 1087 (2009) ............................................ 27
Key Enterprises of Delaware, Inc. v.
Venice Hospital,
9 F.3d 893 (11th Cir. 1993) .................................. 17
League of Women Voters of Florida Inc. v.
Florida Secretary of State,
66 F.4th 905 (11th Cir. 2023) .............................. 27
LG Electronics, Inc. v. InterDigital
Communications, LLC,
572 U.S. 1056 (2014) ............................................ 27
Los Angeles County v. Davis,
440 U.S. 625 (1979) .............................................. 26
Mathews v. Eldridge,
424 U.S. 319 (1976) .................................. 10, 30, 31
Mayorkas v. Innovation Law Lab,
141 S. Ct. 2842 (2021) .......................................... 27
McFarland v. Scott,
512 U.S. 849 (1994) .............................................. 30
ix
Cases (continued)
Page(s)
Medina v. California,
505 U.S. 437 (1992) ........................................ 30, 31
Mitchum v. Foster,
407 U.S. 225 (1972) .............................................. 31
In re Morgan,
50 Cal. 4th 932 (2010) ........................................ 6, 7
In re Murchison,
349 U.S. 133 (1955) .............................................. 23
Murray v. Giarratano,
492 U.S. 1 (1989) .................................................... 5
Nelson v. Colorado,
581 U.S. 128 (2017) .............................................. 31
O’Shea v. Littleton,
414 U.S. 488 (1974) .......................................... 9, 31
Panera, LLC v. Dobson,
999 F.3d 1154 (8th Cir. 2021) .............................. 27
People v. Redd,
48 Cal. 4th 691 (2010) ............................................ 7
Redd v. Chappell,
574 U.S. 1041 (2014) .............................................. 8
Reed v. Goertz,
598 U.S. 230 (2023) .......................................... 9, 29
South Dakota v. Hazen,
914 F.2d 147 (8th Cir. 1990) ................................ 16
x
Cases (continued)
Page(s)
South Spring Hill Gold Mining Co. v.
Amador Medean Gold Mining Co.,
145 U.S. 300 (1892) .............................................. 24
Tevlin v. Spencer,
621 F.3d 59 (1st Cir. 2010) .................................. 31
Turtle Mountain Band of Chippewa Indians
v. North Dakota Legislative Assembly,
144 S. Ct. 2709 (2024) ...................................... 4, 27
U.S. Bancorp Mortgage Co. v. Bonner Mall
Partnership,
513 U.S. 18 (1994) ......................... 3, 12, 13, 14, 16,
22, 23, 24, 26, 27, 28
United States v. American-Foreign
Steamship Corp.,
363 U.S. 685 (1960) .............................................. 21
United States v. Flute,
951 F.3d 908 (8th Cir. 2020) ................................ 16
United States v. Microsoft Corp.,
584 U.S. 236 (2018) .............................................. 26
United States v. Munsingwear, Inc.,
340 U.S. 36 (1950) .............. 2, 13, 20, 25, 26, 27, 29
United States v. Perez-Garcia,
96 F.4th 1166 (9th Cir. 2024) .............................. 19
United States v. Perez-Garcia,
115 F.4th 1002 (9th Cir. 2024) ............................ 19
xi
Cases (continued)
Page(s)
United States v. Samish Indian Nation,
568 U.S. 936 (2012) .............................................. 27
United States v. Sanchez-Gomez,
584 U.S. 381 (2018) .............................................. 21
United States v. Schaffer,
240 F.3d 35 (D.C. Cir. 2001) ................................ 15
Walling v. James V. Reuter, Inc.,
321 U.S. 671 (1944) .............................. 4, 15, 25, 26
Washington v. Trump,
858 F.3d 1168 (9th Cir. 2017) .............................. 11
Ex parte Young,
209 U.S. 123 (1908) .............................................. 10
Yovino v. Rizo,
586 U.S. 181 (2019) .............................................. 20
Constitutional Provisions
U.S. Const. Art. III, § 1 ............................................. 22
Statutes
18 U.S.C. § 3599 .................................................. 30, 32
28 U.S.C. § 1254 .......................................................... 2
28 U.S.C. § 2106 ........................................................ 24
42 U.S.C. § 1983 ...................................................... 2, 8
xii
Statutes (continued)
Page(s)
Cal. Gov’t Code § 68662 .......................................... 6, 7
Cal. Penal Code § 1509............................................ 6, 7
Ch. 869, § 3, 1997 Cal. Stat. 6237............................... 6
Rules
Fed. R. App. P. 40 ...................................................... 21
Fed. R. App. P. 41 ...................................................... 21
Sup. Ct. R. 10 ....................................................... 22, 23
Other Authorities
Stephen M. Shapiro et al.,
Supreme Court Practice (11th ed. 2019) ............. 29
IN THE
Supreme Court of the United States
No.
PATRICIA GUERRERO, CHIEF JUSTICE OF CALIFORNIA,
AND KIMBERLY MENNINGER, JUDGE OF THE SUPERIOR
COURT OF CALIFORNIA, COUNTY OF ORANGE
Petitioners,
v.
STEPHEN MORELAND REDD,
Respondent.
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
PETITION FOR A WRIT OF CERTIORARI
Chief Justice Guerrero and Judge Menninger respectfully petition for a writ of certiorari to review the
judgment of the United States Court of Appeals for
the Ninth Circuit.
OPINIONS BELOW
The order of the court of appeals dismissing the
appeal as moot, declining to vacate the panel opinion,
and denying rehearing (App., infra, 3a-4a) is reported
at 122 F.4th 1203. Judge Berzon’s six-judge statement
respecting the denial of rehearing en banc (App., infra, 4a-19a) and Judge Bennett’s seven-judge dissent
from the denial of rehearing en banc (id. at 20a-44a)
2
are also reported at 122 F.4th 1203. The panel opinion (App., infra, 45a-93a) is reported at 84 F.4th 874.
The order of the district court granting petitioners’
motion to dismiss (App., infra, 94a-117a) is not published in the Federal Supplement but is available at
2021 WL 1803211.
JURISDICTION
The judgment of the court of appeals was entered
on October 20, 2023. A petition for rehearing was denied on December 11, 2024 (App., infra, 3a-4a). This
Court’s jurisdiction is invoked under 28 U.S.C.
§ 1254(1).
INTRODUCTION
Vacatur under United States v. Munsingwear, Inc.,
340 U.S. 36 (1950), ensures that appeals proceed
through fair, even-handed rules. Under Article III, a
case or controversy must exist at every moment of a
federal-court action. Mootness, whenever it strikes,
stops the merits adjudication wherever it stands—
whether the plaintiff or defendant is ahead at the moment, and whether the case is in the district court or
on appeal. In such a case, saddling either party with
an adverse, unreviewable decision by pure chance
would be inequitable. That is why this Court has long
relied on the equitable remedy of vacatur to “clea[r]
the path for future relitigation of the issues” when
“happenstance” brings a premature end to the dispute. Id. at 40.
This case met that fate. Respondent was a capital
inmate who brought a putative class action under 42
U.S.C. § 1983 against petitioners, the Chief Justice of
California and the supervising judge of his sentencing
court. Although the Constitution does not require appointment of counsel for postconviction proceedings,
3
California law provides for appointed capital habeas
counsel. But legislative underfunding and the absence of qualified, willing counsel have prevented appointments for hundreds on California’s death row.
Respondent claimed that petitioners had deprived
him of property (appointed counsel) without due process of law. Shortly after the Ninth Circuit endorsed
that theory and reversed the dismissal of the complaint, respondent died of natural causes in prison
while a rehearing petition was pending. Petitioners
accordingly sought vacatur of the panel decision.
Under a conventional application of Munsingwear,
vacatur would have been the unquestioned next step.
Petitioners were continuing along the “primary route,
by appeal as of right and certiorari, through which
parties may seek relief from the legal consequences of
judicial judgments.” U.S. Bancorp Mortgage Co. v.
Bonner Mall Partnership, 513 U.S. 18, 27 (1994). This
Court has held that “mootness by happenstance provides sufficient reason to vacate.” Id. at 25 n.3. In the
D.C., Fourth, Eighth, and Eleventh Circuits, the additional happenstance that the death followed rather
than preceded the panel’s issuance of its opinion
would have made no difference. The panel would have
vacated its own decision, just as courts of appeals vacate the district court’s judgment when mootness
arises during the appeal.
This case, however, happened to be in the Ninth
Circuit. Like the Second, Third, and Tenth Circuits,
the Ninth Circuit has recognized an exception to Munsingwear when an appeal becomes moot after the
panel issues its decision but before the mandate issues. Those circuits all elevate the “valu[e]” in establishing legal precedent for the public over the unfairness to the litigant who cannot seek further review of
4
an adverse opinion. App., infra, 7a. And those circuits
justify taking a harder line against vacatur on the
theory that rehearing and certiorari are “discretionary forms of appellate review.” Id. at 8a.
This Court should resolve the circuit confusion
and in so doing reject the Ninth Circuit’s approach to
Munsingwear as unsound. Concerns about “fairness”
do not vanish once a panel has reached a decision.
Camreta v. Greene, 563 U.S. 692, 712 (2011) (citation
omitted). To the contrary, their “adverse ruling[s]”
have more, not less, ability to saddle parties with ongoing legal consequences. Ibid. (citation omitted).
This Court accordingly has routinely vacated courts of
appeals’ decisions, including when mootness occurs
after the decision but before a grant of certiorari. Azar
v. Garza, 584 U.S. 726, 729-730 (2018) (per curiam);
see, e.g., Turtle Mountain Band of Chippewa Indians
v. North Dakota Legislative Assembly, 144 S. Ct. 2709
(2024).
Although the Ninth Circuit discounts en banc rehearing and certiorari as discretionary, this Court has
recognized that an appeal “contemplates more than a
consideration of the case by the Circuit Court of Appeals alone.” Walling v. James V. Reuter, Inc., 321 U.S.
671, 677 (1944). This case shows that panels are denying vacatur on the ground that their opinions are important in precisely the same cases that would have
received serious consideration for certiorari. Disregarding such review allows a panel to sit in judgment
of its own decision. But a panel should not become
“infallible” simply because mootness short-circuited
the rest of the appeal. Cf. Brown v. Allen, 344 U.S. 443,
540 (1953) (Jackson, J., concurring in the result). Until this Court makes that clear, the courts of appeals
on the Ninth Circuit’s side of the split will continue to
5
shift routine Munsingwear requests onto the Court’s
certiorari docket.
Vacatur would be warranted even if petitioners
were required to show that the case was worthy of further review before becoming moot. The Court has already granted review of an Article III circuit split that
includes the very opinion in this case as to whether a
plaintiff can demonstrate redressability in an action
against state officials when different state officials are
the ultimate cause of any injury. Gutierrez v. Saenz,
No. 23-7809 (Oct. 4, 2024). The Ninth Circuit’s treatment of the procedural right to appointed counsel as a
“property” interest supporting suits against state
judges under the Due Process Clause also conflicts
with decisions of this Court and of other courts of appeals, as well as “centuries-old principles of federalism.” App., infra, 39a (Bennett, J., dissenting from
denial of rehearing en banc). And the decision, if left
on the books, will provide a roadmap for hundreds of
similarly situated inmates to bring claims that federal
judges should commandeer California’s limited resources to cover legislative shortfalls of more than
$100 million in pay for appointed counsel.
This Court should grant the petition and vacate
the decision under Munsingwear simply because happenstance deprived petitioners of their ability to seek
further review of the decision below. But because, absent mootness, the case would have been certworthy,
this case is an especially strong candidate for vacatur.
STATEMENT
1. The Constitution does not require States to appoint counsel for state postconviction proceedings.
Murray v. Giarratano, 492 U.S. 1, 10 (1989). California has opted to go above the constitutional floor.
6
More than five decades ago, the California Supreme
Court first announced a practice of appointing counsel
for “indigent defendants in capital cases” for state habeas proceedings. In re Anderson, 69 Cal. 2d 613, 633
(1968).
The California Legislature later codified the procedural requirement that the California Supreme
Court “shall offer to appoint counsel to represent all
state prisoners subject to a capital sentence for purposes of state postconviction proceedings.” Ch. 869,
§ 3, 1997 Cal. Stat. 6237. The Legislature also established the Habeas Corpus Resource Center to employ
attorneys to represent capital inmates in postconviction proceedings and to assist in recruiting private attorneys to accept such representations. Id. at 6236.
In 2016, California voters approved Proposition 66,
which shifted the appointment of counsel to the trial
court that entered the capital sentence. Cal. Gov’t
Code § 68662; see Cal. Penal Code § 1509(b).
The California Supreme Court recognizes that “the
appointment of habeas corpus counsel should occur
shortly after an indigent defendant’s judgment of
death.” In re Morgan, 50 Cal. 4th 932, 937 (2010).
There is, however, a “serious shortage of qualified
counsel willing to accept an appointment as habeas
corpus counsel in a death penalty case.” Id. at 937938. Few attorneys have the necessary qualifications
to begin with, and budgetary constraints limit the
California judiciary’s ability to attract even those attorneys who are qualified. Id. at 938. Given those
constraints, 363 prisoners on death row had not been
appointed state-funded postconviction counsel as of
2019. App., infra, 54a.
The California Supreme Court has a “practice of deferring consideration of cursory habeas corpus petitions
7
filed by unrepresented petitioners.” Morgan, 50 Cal.
4th at 941 n.7. As a result, capital inmates have a
ready avenue to secure the protection of statutory tolling for federal habeas petitions while they wait for appointed counsel. App., infra, 52a. California law generally sets a one-year deadline for capital petitions for
postconviction relief upon appointment of counsel.
Cal. Penal Code § 1509(c). Capital inmates also may
“rejec[t] the offer to appoint counsel” and proceed directly to state habeas, just like the Constitution permits for other prisoners around the country. Cal.
Gov’t Code § 68662(b).
2. Respondent Stephen Moreland Redd was a
capital inmate in California. A former sheriff ’s deputy, he became a serial armed robber who killed one
man at point-blank range and attempted to kill two
others in the course of his crime spree. People v. Redd,
48 Cal. 4th 691, 698-703 (2010). In 1997, a jury convicted him of first-degree murder, two counts of attempted murder, two counts of second-degree robbery,
and two counts of second-degree commercial burglary,
and also returned a verdict of death. Id. at 697. The
evidence of his guilt was “overwhelming,” as the California Supreme Court found in upholding his death
sentence on direct review. Id. at 740.
Respondent requested appointment of counsel for
state postconviction proceedings once he was sentenced to death and again after the California Supreme Court upheld his convictions and sentence.
App., infra, 53a-54a. No qualified counsel accepted
appointment. Id. at 54a. While his shell petition remained pending with the California Supreme Court,
respondent filed a federal habeas petition, which the
district court dismissed for failure to exhaust statelaw remedies. Id. at 56a. This Court denied review of
8
the Ninth Circuit’s refusal to grant a certificate of appealability. Redd v. Chappell, 574 U.S. 1041 (2014). In
a statement respecting the denial, Justice Sotomayor,
joined by Justice Breyer, suggested that respondent
may be able to “bring a 42 U.S.C. § 1983 suit contending that the State’s failure to provide him with the
counsel to which he is entitled [under state law] violates the Due Process Clause.” Id. at 1042.
3. Respondent then filed a § 1983 action against
petitioners, the Chief Justice of California and the supervising judge in the trial court that sentenced him to
death. App., infra, 94a. Respondent claimed that petitioners were violating the Due Process Clause because of the lack of “timely appointment of counsel”
for state postconviction proceedings. Id. at 101a (citation omitted). He also sought to represent a class of
all other capital inmates who were awaiting appointment of such counsel. Id. at 101a-102a.
The district court dismissed respondent’s complaint with prejudice. App., infra, 94a-117a. The court
upheld respondent’s standing and refused to abstain
from deciding the case. Id. at 103a-110a. But the court
held that California’s provisions governing appointment of habeas counsel created only a “procedural
righ[t]” to facilitate state postconviction proceedings,
not a substantive right that qualified as “liberty” under the Due Process Clause. Id. at 114a-116a. While
“decrying” the delays in California’s capital system,
the court observed that “[t]his is an issue that should
be addressed as a matter of public policy by the State
Legislature in collaboration with the state courts.” Id.
at 117a.
4. In an opinion by Judge Berzon, the Ninth Circuit reversed the complaint’s dismissal. App., infra,
48a-93a.
9
The court of appeals first held that respondent
had Article III standing. App., infra, 59a-63a. Petitioners had argued that respondent’s asserted injury
(the lack of appointed counsel) was not traceable to
their conduct or redressable by a declaration against
them because that injury was “caused by ‘underfunding’ for which [petitioners] are not responsible and
have no power to change.” Id. at 103a-104a. But relying on Reed v. Goertz, 598 U.S. 230 (2023), the court
reasoned that the injury was traceable to petitioners’
inability to attract enough counsel and redressable on
the theory that the California Supreme Court could
reallocate money from its budget to the Habeas Corpus Resource Center and relax the qualifications for
capital counsel. App., infra, 60a-63a.
The court of appeals next rejected petitioners’ request for abstention under O’Shea v. Littleton, 414 U.S.
488 (1974). App., infra, 64a-75a. There, this Court
held that federal courts should refuse requests to perform “ongoing federal audit[s] of state criminal proceedings.” 414 U.S. at 500. Petitioners argued that
O’Shea supported abstention because respondent had
brought a class action seeking intrusive restructuring
of how the California judiciary appoints counsel and
allocates its limited budget. App., infra, 67a. While
recognizing that petitioners’ “federalism and comity
concerns are surely significant,” id. at 64a, the court
declined to abstain after limiting its analysis to the
individual declaratory relief that respondent sought
while excluding the sweeping class relief, id. at 67a72a. The court, however, expressed “trepidation” about
its decision to permit respondent’s claim to go forward. Id. at 74a (citation omitted).
The court of appeals then held that respondent
had plausibly pleaded a violation of the Due Process
10
Clause. App., infra, 75a-88a. The court endorsed respondent’s argument, made for the first time on appeal, that he had a “state-created property interest” in
the appointment of counsel because “representation
by counsel has an ‘ascertainable monetary value.’” Id.
at 76a, 79a (emphasis added) (quoting Castle Rock v.
Gonzales, 545 U.S. 748, 766-767 (2005)). The court
determined that, although California law does not set
a “specific deadline,” respondent was entitled to appointed counsel “within a reasonable time.” Id. at
79a-84a. The court also concluded that the complaint
plausibly alleged that petitioners had not taken sufficient steps to prevent undue delay in the appointment
of counsel under the balancing test set forth in
Mathews v. Eldridge, 424 U.S. 319 (1976). App., infra,
84a-88a.
Separately, the court of appeals rejected respondent’s theory that petitioners’ inability to appoint counsel had deprived him of a “liberty” interest in petitioning for state habeas relief. App., infra, 88a-93a. The
court noted that respondent had not alleged any attempt to withdraw his request for appointed counsel
and to proceed pro se. Id. at 91a-92a.
5. About two months later, after petitioners had
sought panel rehearing and rehearing en banc, respondent died of natural causes. C.A. Doc. No. 61, at
1 (Dec. 26, 2023). Respondent’s counsel moved to substitute respondent’s daughter as plaintiff-appellant.
C.A. Doc. No. 65, at 1-2 (Jan. 26, 2024). Petitioners opposed that substitution because respondent’s daughter lacked standing to seek prospective relief and
could not seek retrospective relief under the limited
exception in Ex parte Young, 209 U.S. 123 (1908), to
state sovereign immunity. C.A. Doc. No. 66, at 2-3
(Feb. 5, 2024). Petitioners also requested that the
11
court of appeals vacate the panel opinion because the
case became moot before the appellate process had
concluded. C.A. Doc. No. 73, at 8-12 (Mar. 15, 2024).
The court of appeals denied the motion to substitute respondent’s daughter as plaintiff, dismissed the
appeal as moot, denied the petition for rehearing as
moot, and denied petitioners’ request to vacate the
panel opinion. App., infra, 3a-4a.
a. Judge Berzon, joined by five judges, filed an
opinion respecting the denial of rehearing en banc.
App., infra, 4a-19a. She explained that the Ninth Circuit had adopted a three-factor test for deciding
whether to vacate a panel opinion when the case becomes moot while the appeal remains pending:
“(1) whether the opinion is ‘valuable to the legal community as a whole,’” id. at 6a-7a (quoting Dickens v.
Ryan, 744 F.3d 1147, 1148 (9th Cir. 2014) (en banc));
“(2) whether letting the opinion stand would result in
prejudice to the parties,” id. at 7a (citing Dickens, 744
F.3d at 1148); and “(3) whether mootness arose due to
the voluntary conduct of the parties,” ibid. (citing
Washington v. Trump, 858 F.3d 1168, 1168 (9th Cir.
2017)).
Judge Berzon explained why “[t]he panel, in its
discretion, declined to vacate its opinion” under those
three factors. App., infra, 4a. First, she considered
her opinion to be “valuable to the legal community”
because it would “provide a decisional framework” for
hundreds of other “capital prisoners who, like [respondent], have waited many years for habeas counsel
to be appointed.” Id. at 7a. Second, she asserted that
leaving the panel’s opinion in place would not substantially prejudice petitioners because they “are not
entitled to rehearing or certiorari, both of which are
discretionary forms of appellate review.” Id. at 8a.
12
She also suggested that petitioners could seek en banc
review or certiorari in a later case filed against them.
Ibid. Third, she acknowledged that the mootness here
arose from the “happenstance” of respondent’s death.
Ibid. (quoting U.S. Bancorp Mortgage Co. v. Bonner
Mall Partnership, 513 U.S. 18, 25 (1994)). But she asserted that vacatur “is neither mandatory nor commonplace” even when the losing party is not at fault
for losing the ability to seek further review. Id. at 9a.
b. Judge Bennett, joined by six judges, dissented
from the denial of rehearing en banc. App., infra, 20a46a. In his view, the court of appeals “should have
taken this case en banc to vacate the panel’s opinion.”
Id. at 20a.
Judge Bennett identified “deleterious practical effects” from the panel’s decision. App., infra, 22a. For
example, respondent alleged that the cost of litigating
a successful habeas petition in 2004 was $328,000,
which would amount to $118 million when multiplied
across the 362 prisoners awaiting counsel—even before accounting for inflation. Id. at 22a n.4. He also
explained that it would be “impossible for California
courts to guarantee appointment of habeas counsel
within a certain time frame” given the lack of qualified and willing attorneys. Id. at 35a. For that reason, he would have interpreted California law to require prompt appointment only “if it was possible to
do so.” Ibid. (emphasis omitted).
Judge Bennett also criticized the logic of the panel
decision. Although the Constitution does not require
appointment of postconviction counsel, he noted that,
“because the State has elected to do so, this federal court
is somehow empowered to mandate how the Chief Justice of the California Supreme Court and the other
[state judges] must interpret state law, implement state
13
law, and administer and allocate state judicial resources.” App., infra, 38a-39a. He considered that
“dramatic overreach” to be “[a]n affront to centuriesold principles of federalism.” Id. at 39a.
Judge Bennett then took issue with the panel’s refusal to vacate its decision. While the panel emphasized the perceived value of its opinion, Judge Bennett
identified a “strong countervailing public interest” in
“‘granting relief when the demands of “orderly procedure” cannot be honored.’” App., infra, 42a (quoting
Bancorp, 513 U.S. at 26-27, in turn quoting United
States v. Munsingwear, Inc., 340 U.S. 36, 41 (1950)).
He deemed the prejudice to petitioners to be “substantial” because they had been deprived of the ability to
seek further review of a decision that “sets forth a
blueprint for all of California’s 362 indigent capital
prisoners to follow if the State does not appoint counsel ‘expeditiously.’” Id. at 43a. Because happenstance
(respondent’s death) had mooted the appeal, Judge
Bennett concluded that “the equitable considerations
compel vacatur.” Ibid.
REASONS FOR GRANTING THE PETITION
This Court’s decision in United States v. Munsingwear, Inc., 340 U.S. 36 (1950), has established the
ground rules for vacatur upon mootness in the federal
courts for the last seven decades. When a party diligently protects her rights and is not to blame for mootness, Munsingwear vacatur “clears the path for future
relitigation of the issues” in an action that remains a
case or controversy through the entire appeal. Id. at
40. This equitable remedy promises that “[a] party who
seeks review of the merits of an adverse ruling, but is
frustrated by the vagaries of circumstance, ought not
in fairness be forced to acquiesce in the judgment.”
14
U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 25 (1994).
Nevertheless, the courts of appeals have divided
four to four as to whether an exception to that
longstanding equitable rule exists for their own decisions. The D.C., Fourth, Eighth, and Eleventh Circuits
vacate their own decisions when a case becomes moot
by happenstance after the panel issues its opinion but
before the mandate issues. In contrast, the Ninth Circuit, joined by the Second, Third, and Tenth Circuits,
refuses to vacate opinions in cases that become moot.
Those courts reason that, because rehearing and certiorari are discretionary forms of review, the panel’s
interest in establishing law for the public outweighs
the losing party’s interest in not being saddled with
an adverse ruling that mootness shields from further
review.
Allowing the happenstance of mootness to immunize panel opinions from further review undermines the “orderly operation of the federal judicial
system.” Bancorp, 513 U.S. at 27. Panel rehearing,
en banc rehearing, and certiorari all play a critical
role in correcting errors and ensuring that important
issues receive full consideration on appeal beyond the
three judges who happen to be drawn for the panel.
Those circuits that disregard such further review as
discretionary either overlook even those cases in
which discretionary review was likely or improperly
assume the position of deciding whether their own decisions warrant further review.
The Ninth Circuit’s recognition of an exception to
Munsingwear for panel opinions conflicts with this
Court’s decisions. Even before Munsingwear, the
Court recognized that an appeal “contemplates more
than a consideration of the case by the Circuit Court
15
of Appeals alone.” Walling v. James V. Reuter, Inc.,
321 U.S. 671, 677 (1944). The Court therefore routinely vacates the court of appeals’ decision when a
case becomes moot before a party can seek certiorari.
Azar v. Garza, 584 U.S. 726, 729-730 (2018) (per curiam) (collecting cases).
Because the appeal became moot by the happenstance of respondent’s death, and because the court of
appeals’ decision expanding Article III standing and
intruding upon bedrock principles of federalism would
have warranted further review in any event, this
Court should grant the petition and vacate the court
of appeals’ decision under Munsingwear.
I.
CIRCUITS DISAGREE ABOUT THE STANDARD
FOR VACATUR WHEN AN APPEAL BECOMES
MOOT AFTER A PANEL ISSUES ITS OPINION
A. Four circuits apply the ordinary Munsingwear
standard when an appeal becomes moot by happenstance after the panel issues its decision.
The D.C. Circuit has adopted that approach. In
United States v. Schaffer, 240 F.3d 35 (D.C. Cir. 2001)
(per curiam), the court explained that, “[w]hen a case
becomes moot on appeal, whether it be during initial
review or in connection with consideration of a petition for rehearing or rehearing en banc, th[e] court
generally vacates the District Court’s judgment, vacates any outstanding panel decisions, and remands
to the District Court with direction to dismiss.” Id. at
38 (emphasis added). The court vacated its earlier
panel opinion because the case had become moot by
happenstance—“the unpredictable grace of a presidential pardon”—rather than “from any voluntary
acts of settlement or withdrawal” by the party seeking
vacatur. Ibid.; see also Clarke v. United States, 915
16
F.2d 699, 706 (D.C. Cir. 1990) (en banc) (describing
the “standard practice of both the Supreme Court and
the courts of appeals” as “automatic vacatur” when a
case becomes moot after a panel opinion before the
mandate’s issuance).
The Fourth Circuit also follows the traditional
Munsingwear standard when an appeal becomes moot
after a panel opinion. In Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco & Explosives, 14 F.4th 322
(4th Cir. 2021), a panel vacated its own decision because the case had become moot by happenstance after the plaintiff aged out of her challenge to federal
laws regulating young adults’ access to firearms. Id.
at 327. The panel acknowledged that “‘[ j]udicial precedents are presumptively correct and valuable to the
legal community as a whole,’” but it determined that
“the public interest still favor[ed] vacating [its] opinions” because that practice “promotes the ‘orderly operation of the federal judicial system’” and allows relitigation of the issues. Ibid. (quoting Bancorp, 513
U.S. at 26-27).
The Eighth and Eleventh Circuits likewise vacate
their own decisions when a case subsequently becomes moot. E.g., South Dakota v. Hazen, 914 F.2d
147, 151 (8th Cir. 1990). The Eighth Circuit has even
recalled its mandate to vacate a panel opinion when a
case became moot “during the time available to seek
certiorari.” Brewer v. Swinson, 837 F.2d 802, 806 (8th
Cir. 1988); see also United States v. Flute, 951 F.3d
908, 909-910 (8th Cir. 2020) (noting that “courts are
far from unanimous” in this context and declining to
vacate the panel opinion in part because the mootness
“did not result from ‘happenstance’”). And the Eleventh Circuit holds that “vacation for mootness is appropriate” when “mootness occur[s] after an appellate
17
court ha[s] issued a decision but before the losing
party could seek en banc reconsideration and before
the mandate ha[s] issued.” In re Ghandtchi, 705 F.2d
1315, 1316 (11th Cir. 1983) (per curiam); see, e.g., Key
Enterprises of Delaware, Inc. v. Venice Hospital, 9 F.3d
893, 899-900 (11th Cir. 1993) (en banc) (per curiam).
B. In contrast to those four circuits, four other circuits (including the Ninth Circuit) disfavor vacating
their own opinions when a case later becomes moot
while the appeal remains pending.
The Third Circuit has recognized such an exception to Munsingwear. In Humphreys v. DEA, 105 F.3d
112 (3d Cir. 1996), the plaintiff died after prevailing
in the panel opinion but before the court of appeals
issued its mandate. Id. at 113. The panel denied the
government’s vacatur request, reasoning that Munsingwear “is not universally applicable to all cases
which seemingly become moot anytime during the appellate process.” Id. at 114. Stressing that the government’s “remaining avenues of further review”
(panel rehearing, en banc rehearing, and certiorari)
were all “discretionary,” the panel asserted that the
loss of such review did not require vacatur of its “carefully analyzed” opinion because the government “had
a full and fair opportunity to present its case and convince” the panel. Id. at 115-116.
The Second and Tenth Circuits have adopted the
same exception to Munsingwear for appeals that become moot after the panel issues its opinion but before
the mandate’s issuance. In re Grand Jury Investigation, 399 F.3d 527, 528 n.1 (2d Cir. 2005); Bastien v.
Office of Senator Ben Nighthorse Campbell, 409 F.3d
1234, 1235 (10th Cir. 2005) (per curiam). For example, the Second Circuit has agreed with the Third Circuit that a panel “generally ha[s] discretion * * * to
18
leave [its] order intact where the circumstances leading to mootness occur after [it] file[s] [its] decision but
before the mandate has issued.” Grand Jury Investigation, 399 F.3d at 528 n.1.
The Ninth Circuit is firmly in the same camp. In
Armster v. U.S. District Court for Central District of
California, 806 F.2d 1347 (9th Cir. 1986), the court
denied the government’s request to vacate a panel decision when the case became moot before the mandate
issued. Id. at 1355. The court reasoned that “[t]here
is a significant difference between a request to dismiss
a case or proceeding for mootness prior to the time an
appellate court has rendered its decision on the merits
and a request made after that time.” Ibid. The court
expressed concern that vacatur would deprive the
winning party “of the benefit of an appellate court decision.” Ibid. And even though the time to seek rehearing had not elapsed, the court stated that it “ha[d]
already exercised its constitutional power” when issuing the panel opinion. Ibid. n.9. The court lastly suggested that litigants who desire vacatur of panel opinions should file petitions with this Court. Id. at 1356
n.12.
The Ninth Circuit since Armster has repeatedly
refused to vacate its own decisions when mootness deprives parties of further review. See, e.g., Crespin v.
Ryan, 51 F.4th 819, 820 (9th Cir. 2022); Black Mesa
Water Coalition v. Jewell, 797 F.3d 1185, 1185 (9th
Cir. 2015).
In Dickens v. Ryan, 744 F.3d 1147 (9th Cir. 2014)
(en banc), for instance, the court declined to vacate a
habeas decision that fractured across five opinions,
Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014) (en
banc), on the theory that the State seeking vacatur was
not “entitled to additional appellate review” because
19
certiorari is “discretionary.” 744 F.3d at 1148. That
opinion remained in place even though the court recognized that its decision would “undoubtedly affect
cases now pending” against the State, ibid., and even
though the dissent protested that this Court “would
have provided necessary guidance,” had the case not
become moot, ibid. (opinion of Callahan, J.).
Another example is United States v. Perez-Garcia,
96 F.4th 1166 (9th Cir. 2024), pet. for cert. filed,
No. 24-6203 (Dec. 20, 2024). There, the panel issued
an expedited summary order affirming a magistrate
judge’s ability to release defendants on bail subject to
a bar on possessing firearms pending trial. Id. at
1172. The panel then issued its reasoned opinion rejecting the defendants’ Second Amendment claim after the case had become moot following the panel’s
earlier order. Id. at 1173-1174. The court next denied
rehearing en banc over a dissent that advocated vacatur to “clear the path for the [constitutional] issue to
be cleanly litigated by a host of other parties in nonmoot cases.” United States v. Perez-Garcia, 115 F.4th
1002, 1032-1033 (9th Cir. 2024) (opinion of VanDyke,
J.).
The decision in this case showcases the Ninth Circuit’s slant against vacating its own decisions. The
panel asserted that vacating an opinion “due to postdecisional mootness is an ‘extraordinary remedy.’”
App., infra, 6a (quoting Dickens, 744 F.3d at 1148). It
gave great weight to the “valu[e]” of its own opinion to
the “legal community.” Id. at 7a. It gave little (if any)
weight to the potential for rehearing or certiorari by
writing them off as “discretionary forms of appellate
review.” Id. at 8a. And it deemed the “happenstance”
of mootness insufficient to justify vacatur in this case.
Ibid. (citation omitted).
20
In the D.C., Fourth, Eighth, and Eleventh Circuits, the panel opinion would already have been vacated. See pp. 15-17, supra. But the Ninth Circuit’s
contrary approach to Munsingwear has forced petitioners to call on this Court to do for the court of appeals what it will not do for itself.
II. THE QUESTION PRESENTED IS IMPORTANT AND
RECURRING
This Court’s resolution of the question presented
is critical to maintaining “orderly procedure” consistent with time-honored principles of equity. Munsingwear, 340 U.S. at 41. Exempting panel opinions
from the ordinary application of Munsingwear distorts
the appellate process. Each stage—including panel rehearing, rehearing en banc, and review in this Court
by writ of certiorari—helps ensure sound decisionmaking, including through external checks on the
panel. But across a range of decisions, the Ninth Circuit and the courts of appeals that share its approach
have sought to freeze panel opinions in place even as
mootness by happenstance strips losing parties of
their ability to seek further review of errors.
A. The Ninth Circuit puts a thumb on the scale
against vacatur when an appeal becomes moot after
the panel issues its opinion on the theory that rehearing and certiorari are “discretionary.” Dickens, 744
F.3d at 1148. That view downplays the importance of
discretionary review in the federal appellate system.
The availability of panel rehearing reflects the fact
that a judge “may change his or her position” not only
“up to the very moment when a decision is released,”
Yovino v. Rizo, 586 U.S. 181, 184 (2019) (per curiam),
but also for as long as the court retains jurisdiction over
21
the case—typically until the mandate issues, see Fed.
R. App. P. 41(b). After a decision’s hand-down, a party
can bring to the judges’ attention “each point of law or
fact that the petitioner believes the court has overlooked or misapprehended.” Fed. R. App. P. 40(b)(1)(A).
This procedure is “a mechanism for correcting errors
in the courts of appeals before Supreme Court review
is requested.” Bell v. Thompson, 545 U.S. 794, 806
(2005).
The Ninth Circuit’s approach systematically
shields those errors from correction. Because Article III demands that a concrete controversy “be extant
at all stages of review,” mootness deprives the panel
of jurisdiction to address the merits. United States v.
Sanchez-Gomez, 584 U.S. 381, 385 (2018) (citation
omitted). A panel thus cannot fix its own errors—
however glaring—when an appeal becomes moot after
the panel has issued its decision. See App., infra, 3a
(denying rehearing petition as moot).
The Ninth Circuit’s assertion that the “valu[e]”
that a panel places on its own opinion for “the legal
community” justifies denying vacatur also wrongly
supplants the en banc process. App., infra, 6a-7a
(opinion of Berzon, J.) (citation omitted); see id. at
42a-43a (opinion of Bennett, J.). Rehearing en banc is
warranted for “questions of exceptional importance,”
as well as when a panel decision conflicts with decisions of this Court or of other courts of appeals. Fed.
R. App. P. 40(b)(2) (former Fed. R. App. P. 35(a)). And
this Court has recognized that the en banc process is
the surest check on errant panel decisions because the
courts of appeals effectively “are the courts of last resort in the run of ordinary cases.” United States v.
22
American-Foreign Steamship Corp., 363 U.S. 685, 689
(1960) (citation omitted).
The Ninth Circuit’s approach to vacatur in this
context turns the en banc process on its head by transforming a decision’s importance from a factor favoring
further review into a reason to give the panel the final
say, despite a party’s inability to seek such review by
“happenstance.” App., infra, 8a (opinion of Berzon, J.)
(citation omitted). After all, the panel refused to vacate its decision on the theory that it would provide a
“valuable” framework for deciding claims by hundreds
of other capital prisoners against the California judiciary. Id. at 7a. That sweeping scope, however, is precisely why this case “raises [an] exceptionally important question” that did not deserve a truncated appeal. Id. at 42a (opinion of Bennett, J.).
The availability of review by certiorari is also part
of the “primary route” that “Congress has prescribed”
for parties to “seek relief from the legal consequences
of judicial judgments.” Bancorp, 513 U.S. at 27. Typically, this Court exercises its discretion to hear a case
when the decision below conflicts with other decisions
or resolved “an important question of federal law that
has not been, but should be, settled by this Court.” Sup.
Ct. R. 10. The Court does not grant all or even many
petitions. But a party’s ability to seek such review ensures that the Court does not become a “supreme
Court” in name only. U.S. Const. Art. III, § 1.
The Ninth Circuit’s assertion that the “discretionary” nature of certiorari cuts against vacatur of its decisions in moot cases has untenable implications.
Dickens, 744 F.3d at 1148. If the court of appeals
writes off the prospect of certiorari while touting its
23
opinion’s importance to other pending cases, see ibid.,
then it will deny vacatur in precisely those cases that
would have received serious consideration for certiorari. If the court of appeals instead makes its own assessment whether further review is likely, then its decision would hinge on a certworthiness determination
that invades this Court’s province under Rule 10. And
the consequence, either way, is that parties must
draw on this Court’s time and resources to secure vacatur that could readily be accomplished by the court
that had (and lost) jurisdiction over the appeal when
the case became moot.
In short, the Ninth Circuit’s decision to prioritize
the perceived value of a panel opinion over the circumstances that caused the mootness allows a three-judge
panel to withhold all review of its own decision, displacing the ordinary appellate system of rehearing
and certiorari. That exception for post-opinion mootness will skew Munsingwear in predictable ways.
Here, for example, the panel issued its 50-page opinion 17 months after argument. App., infra, 45a. Small
wonder that after devoting such time and effort the
panel deemed its own opinion to be “valuable to the
legal community”—and the absence of further review
by rehearing or certiorari to be insignificant prejudice
to petitioners. Id. at 7a-8a (opinion of Berzon, J.). But
if “no man can be a judge in his own case,” In re Murchison, 349 U.S. 133, 136 (1955), a panel should not
have more discretion to force a party “to acquiesce in
the judgment” just because the “adverse ruling” happens to be the panel’s own, Bancorp, 513 U.S. at 25.
B. The question presented is also recurring, as reflected by the deep four-to-four circuit conflict and
flurry of Ninth Circuit decisions. See pp. 15-19, supra. The opinions in moot appeals (and subsequent
24
certiorari petitions) will continue to pile up until this
Court provides a conclusive answer to the question
presented.
III. THE DECISION BELOW SHOULD BE VACATED
Because the court of appeals erroneously declined
to vacate its own decision, the question now is whether
this Court should vacate the decision. The Court does
not directly review the court of appeals’ decision to
deny vacatur but instead exercises its own power to
“vacate * * * any judgment, decree, or order of a
court lawfully brought before it for review.” 28 U.S.C.
§ 2106; see Bancorp, 513 U.S. at 21. This Court
should vacate the court of appeals’ decision, both because the same Munsingwear standard governs when
an appeal becomes moot after the panel issues its
opinion and because the decision in this case would
have warranted further discretionary review in any
event.
A. Munsingwear is shorthand for an “equitable
tradition of vacatur” with deep roots in this Court’s
precedents. Bancorp, 513 U.S. at 25. When a case has
become moot, the Court has long exercised discretion
to craft relief that is “most consonant to justice.”
South Spring Hill Gold Mining Co. v. Amador Medean
Gold Mining Co., 145 U.S. 300, 302 (1892) (emphasis
omitted). But “[d]iscretion is not whim.” Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U.S. 93, 103
(2016) (citation omitted). The sound legal principles
that emerge from decades of precedent establish that
“mootness by happenstance provides sufficient reason
to vacate,” while a party who is at fault for the mootness generally is not entitled to vacatur. Bancorp, 513
U.S. at 25 n.3; see, e.g., Camreta v. Greene, 563 U.S.
692, 712 & n.10 (2011); Alvarez v. Smith, 558 U.S. 87,
25
94-95 (2009); Arizonans for Official English v. Arizona, 520 U.S. 43, 71 (1997).
The mootness-by-happenstance justification for
vacatur applies equally when an appeal becomes moot
after a panel has issued its decision. In Walling v.
James V. Reuter, Inc., 321 U.S. 671 (1944), for example, a district court entered judgment for the government in a case under the Fair Labor Standards Act,
the Fifth Circuit reversed the judgment, and this
Court granted certiorari at the government’s request.
Id. at 672. The respondent corporation subsequently
dissolved itself and moved to dismiss the writ of certiorari. Id. at 672-673. This Court agreed that the case
could not proceed without any proper respondent, id.
at 675-676, but exercised its “supervisory appellate
power” to vacate the Fifth Circuit’s decision, id. at
676-678. As the Court explained, “review of a judgment of the District Court contemplates more than a
consideration of the case by the Circuit Court of Appeals alone,” because a losing party “may secure further review here upon certiorari, if he so desires and
if this Court, in its discretion, grants the writ.” Id. at
677. Vacatur of the court of appeals’ decision was appropriate because the court of appeals’ decision was
“not final” and “appellate review of the judgment of
the District Court had not been completed when respondent was dissolved.” Ibid.
The Court has since reaffirmed the equitable principle from Walling that deprivation of further review
in this Court by happenstance warrants vacatur of the
court of appeals’ decision. In Munsingwear itself, the
Court identified vacatur as the “established practice
* * * in dealing with a civil case from a court in the
federal system which has become moot while on its
way here or pending our decision on the merits.” 340
26
U.S. at 39 (emphases added); see id. at 41 (citing Walling, 321 U.S. at 676-677). And in Bancorp, the Court
reaffirmed the principle that a party who “is frustrated by the vagaries of circumstance, ought not in
fairness be forced to acquiesce in the judgment,” cited
Walling, and added that vacatur becomes inequitable
when a party abandons “the ordinary processes of appeal or certiorari.” 513 U.S. at 25 (emphasis added).
The Court has repeatedly vacated the court of appeals’ decision when a case becomes moot by happenstance or by the respondent’s action after a grant of
certiorari. See, e.g., Acheson Hotels, LLC v. Laufer,
601 U.S. 1, 5 (2023) (respondent voluntarily dismissed
her claims); United States v. Microsoft Corp., 584 U.S.
236, 240 (2018) (per curiam) (Congress amended law
authorizing warrant); Alvarez, 558 U.S. at 97 (respondents received relief through other forum); Claiborne v.
United States, 551 U.S. 87, 87 (2007) (per curiam) (petitioner’s death); Deakins v. Monaghan, 484 U.S. 193,
200 (1988) (respondents sought to withdraw complaint). A Munsingwear vacatur “deprives” the court of
appeals’ “opinion of precedential effect.” Los Angeles
County v. Davis, 440 U.S. 625, 634 n.6 (1979) (citation
omitted). As a result, wiping a published appellate
precedent off the books “prevent[s] an unreviewable
decision ‘from spawning any legal consequences.’”
Camreta, 563 U.S. at 713 (quoting Munsingwear, 340
U.S. at 41).
The same Munsingwear rule applies when a case
has become moot before this Court grants certiorari.
In Azar v. Garza, 584 U.S. 726 (2018) (per curiam), the
Court explained that “the fact that the relevant claim
[there] became moot before certiorari does not limit
th[e] Court’s discretion” to vacate a decision under
Munsingwear. Id. at 729. The Court collected examples
27
in which a case became moot after the court of appeals’
decision but before a grant of certiorari. Id. at 729730; see LG Electronics, Inc. v. InterDigital Communications, LLC, 572 U.S. 1056 (2014); United States v.
Samish Indian Nation, 568 U.S. 936 (2012); Eisai Co.
v. Teva Pharmaceuticals USA, Inc., 564 U.S. 1001
(2009); Indiana State Police Pension Trust v. Chrysler
LLC, 558 U.S. 1087 (2009); see also, e.g., Turtle Mountain Band of Chippewa Indians v. North Dakota Legislative Assembly, 144 S. Ct. 2709 (2024); Chapman v.
Doe, 143 S. Ct. 857 (2023); Mayorkas v. Innovation Law
Lab, 141 S. Ct. 2842 (2021).
The Ninth Circuit has relied on the statement in
Bancorp that “judicial precedents ‘are not merely the
property of private litigants,’ but are ‘valuable to the
legal community as a whole’” as a justification for
denying vacatur of its own opinions even for mootness
by happenstance. Dickens, 744 F.3d at 1148 (quoting
513 U.S. at 26); see App., infra, 7a (opinion of Berzon,
J.). But in the very same passage of Bancorp, this
Court explained “the public interest is best served by
granting relief when the demands of ‘orderly procedure’ cannot be honored.” 513 U.S. at 27 (quoting
Munsingwear, 340 U.S. at 41). The Court has reiterated that the “normal rule” of vacatur applies even—
perhaps especially—to “legally consequential decision[s].” Camreta, 563 U.S. at 713. And other courts
have recognized that allowing “the precedential value
of a decision alone” to defeat vacatur “would swallow
Munsingwear.” Panera, LLC v. Dobson, 999 F.3d
1154, 1159 (8th Cir. 2021) (quoting American Family
Life Assurance Co. of Columbus v. FCC, 129 F.3d 625,
631 (D.C. Cir. 1997)); accord, e.g., League of Women
Voters of Florida Inc. v. Florida Secretary of State, 66
F.4th 905, 951 (11th Cir. 2023).
28
The Ninth Circuit’s assertion that vacatur
“force[s] future courts to duplicate a panel’s efforts by
re-deciding issues it has already resolved” also does
not withstand scrutiny. App., infra, 7a (opinion of
Berzon, J.) (brackets omitted) (quoting Dickens, 744
F.3d at 1148). A “panel opinion even if vacated” does
not vanish into thin air but instead remains available
online to the public, including future litigants and
judges. Hirschfeld, 14 F.4th at 328; see ibid. (Wynn,
J., concurring in the result). If the decision is correct,
then the vacated opinion marks the shortest path
back to the same result. But if a decision is wrong,
the court of appeals could reach the right answer
through independent judgment in a future case. And
the losing party, no matter the outcome, will have an
opportunity to request this Court’s review. What the
Ninth Circuit’s approach seeks, then, is not a chance
to persuade, but the unreviewable power to bind even
when a decision in a moot case is unpersuasive.
Vacatur of the panel decision in this case is thus
warranted. Petitioners never stepped off the “primary
route, by appeal as of right and certiorari, through
which parties may seek relief from the legal consequences of judicial judgments.” Bancorp, 513 U.S. at
27. Accordingly, the importance of the legal issues
cuts in favor of, not against, vacating a published decision that would otherwise bind petitioners even
when they are deprived of a full appellate process.
Camreta, 563 U.S. at 713. And the prejudice is even
more plain here when respondent’s counsel has represented that “several other” members of the putative
class of death-row inmates were “ready and willing to
intervene in the action to pursue the same claims”
and, if substitution were denied, “will proceed with a
new suit in district court,” C.A. Doc. No. 69, at 34 n.6,
39 (Feb. 16, 2024), as the panel itself anticipated in
29
preserving its “decisional framework” for future litigants, App., infra, 7a. The Court should “clea[r] the
path for future relitigation of the issues” in a non-moot
case. Munsingwear, 340 U.S. at 40.
B. Even under a more stringent approach to
Munsingwear, vacatur would still be appropriate in
this case. This Court has never endorsed the proposition, sometimes advanced by the Solicitor General,
that a petition seeking vacatur under Munsingwear
should be denied “when a case is otherwise not worthy
of review.” Stephen M. Shapiro et al., Supreme Court
Practice § 19.4, at 19-29 n.34 (11th ed. 2019). Of course,
if a party does not file a petition, then the Court has
no obligation to roam in search of moot appeals. But
requiring a determination whether certiorari would
have been granted in a counterfactual non-moot case
whenever a party seeks vacatur under Munsingwear
would only increase this Court’s workload. And this
case in any event would have been a prime candidate
for further review, had respondent’s death not mooted
the appeal.
To start, the clearest sign that this case was worthy of further review is the fact that the Court has
granted review of the mirror-image decision on Article III standing in Gutierrez v. Saenz, No. 23-7809
(Oct. 4, 2024). The petitioner there argued that the
Fifth Circuit’s rejection of standing under Reed v.
Goertz, 598 U.S. 230 (2023), conflicts with the Ninth
Circuit’s decision in this case upholding standing under Reed. Pet. at 13-14, Gutierrez, supra (June 25,
2024); see App., infra, 59a-63a. And this Court is also
poised to provide further guidance by the end of this
Term on the redressability analysis in Reed. At a minimum, there was a strong possibility that, had this
case not become moot, the Court would have held a
30
petition and later decided whether to grant it, vacate
the judgment, and remand for further proceedings
consistent with the forthcoming decision in Gutierrez.
The case’s merits were also worthy of further review. For one thing, the Ninth Circuit held that a
state-law guarantee of appointed habeas counsel creates a “property” interest because an inmate might
otherwise have to pay money to secure legal representation. App., infra, 78a-79a. That decision conflicts
with the Sixth Circuit’s treatment of “appointed counsel” as a “procedural righ[t],” rather than a substantive entitlement protected by the Due Process Clause.
Experimental Holdings, Inc. v. Farris, 503 F.3d 514,
520 (6th Cir. 2007). The decision also cannot be
squared with Castle Rock v. Gonzales, 545 U.S. 748
(2005), because appointed counsel is not “some new
species of government benefit or service” but instead
a procedure to facilitate fair adjudication in the criminal process. Id. at 766-767; see Gideon v. Wainwright,
372 U.S. 335, 344 (1963). This Court has always treated
appointed counsel as a procedural right that safeguards life and liberty—not as a substantive end unto
itself—including for the parallel federal statutory
right to appointed counsel for certain federal habeas
petitioners. McFarland v. Scott, 512 U.S. 849, 859
(1994); see 18 U.S.C. § 3599(a)(2).
For another, the Ninth Circuit decided whether
respondent had been deprived of appointed habeas
counsel without due process of law by applying the
three-factor balancing test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976). App., infra, 84a-88a. The
court noted respondent’s backup argument that the
delay violated due process under Barker v. Wingo, 407
U.S. 514 (1972), and bypassed petitioners’ submission that Medina v. California, 505 U.S. 437 (1992),
31
supplied the appropriate and more demanding framework. App., infra, 85a n.14; see Pet. C.A. Br. 23-24.
Its resort to Mathews conflicts with numerous decisions applying Medina to postconviction procedures.
E.g., Tevlin v. Spencer, 621 F.3d 59, 70 (1st Cir. 2010);
Cunningham v. District Attorney’s Office for Escambia
County, 592 F.3d 1237, 1256 n.12, 1260-1261 (11th
Cir. 2010). This Court routinely grants review to clarify the appropriate standard in cases like this one.
See District Attorney’s Office for Third Judicial District v. Osborne, 557 U.S. 52, 69 (2009) (holding that
Medina governs procedures in state postconviction
proceedings); see also Culley v. Marshall, 601 U.S.
377, 388 (2024) (holding that Barker rather than
Mathews governs timing of hearing in civil forfeiture
proceeding); Nelson v. Colorado, 581 U.S. 128, 135
(2017) (holding that Mathews rather than Medina
governs when “no further criminal process is implicated”).
The issues that the Ninth Circuit decided also
strike at the heart of the Constitution’s allocation of
authority between the federal and state sovereigns.
Any federal case brought against state judges implicates weighty “principles of equity, comity, and federalism.” Mitchum v. Foster, 407 U.S. 225, 243 (1972).
The panel thus was “mindful that this case does implicate the delicate balance ‘between federal equitable
power and State administration of its own law.’”
App., infra, 67a (quoting O’Shea v. Littleton, 414 U.S.
488, 500 (1974)). And despite its professed caution,
the panel’s analysis drew a strong rebuke from the
dissent as “an affront to the principles of federalism.”
Id. at 20a (opinion of Bennett, J.).
Unlike for a one-off dispute, the panel decision
(unless vacated) has the potential to unleash a barrage
32
of actions under the panel’s “decisional framework”
for the hundreds of other capital inmates awaiting appointed counsel. App., infra, 7a. Those actions would
allow the federal courts to attempt to commandeer
more than $100 million of California’s limited resources when the California Legislature has not appropriated funds sufficient to attract enough qualified
capital habeas attorneys. Id. at 22a n.4 (opinion of
Bennett, J.). And the decision below could turn every
adverse funding decision by federal courts under
§ 3599 into a springboard for a due-process claim
about the deprivation of funding. Cf. Ayestas v. Davis,
584 U.S. 28, 43-44 (2018). Those profound consequences, if nothing else, confirm that this case would
have warranted this Court’s review absent mootness.
CONCLUSION
The Court should grant the petition for a writ of
certiorari, vacate the Ninth Circuit’s decision under
United States v. Munsingwear, Inc., 340 U.S. 36 (1950),
and remand with instructions to direct the district
court to dismiss the case as moot.
Respectfully submitted.
RYAN AZAD
VANNALEE CAYABYAB
GIBSON, DUNN &
CRUTCHER LLP
One Embarcadero Center,
Suite 2600
San Francisco, CA 94111
THEODORE J. BOUTROUS, JR.
Counsel of Record
JULIAN W. POON
PATRICK J. FUSTER
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
(213) 229-7000
tboutrous@gibsondunn.com
Counsel for Petitioners
February 28, 2025
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.