Opposition Brief — Patricia Guerrero, Chief Justice, Supreme Court of California, et al., Petitioners v. Stephen Moreland Redd

No. 24-948

IN THE

Supreme Court of the United States

________________

PATRICIA GUERRERO, CHIEF JUSTICE, SUPREME COURT

OF CALIFORNIA, ET AL.,

Petitioners,

v.

STEPHEN MORELAND REDD,

Respondent.

________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________

BRIEF IN OPPOSITION

________________

Nicole Ries Fox

Robert M. Loeb

Lauren A. Weber

Counsel of Record

ORRICK, HERRINGTON &

ORRICK, HERRINGTON &

SUTCLIFFE LLP

SUTCLIFFE LLP

2050 Main Street

2100 Pennsylvania Ave.

Suite 1100

NW

Irvine, CA 92614

Washington, DC 20037

(202) 339-8400

Ronald A. McIntire

rloeb@orrick.com

Taylor R. Russell

Katherine E. Munyan

PERKINS COIE LLP

1888 Century Park East ORRICK, HERRINGTON &

SUTCLIFFE LLP

Suite 1700

51 W. 52nd Street

Los Angeles, CA 90067

New York, NY 10019

Counsel for Respondent

i

QUESTION PRESENTED

California guarantees indigent capital prisoners

the right to the appointment of state-funded counsel

for state habeas proceedings. Stephen Moreland

Redd waited in vain for 26 years for the State to fulfill that promise. In a unanimous decision, the Ninth

Circuit held that Mr. Redd pled a plausible claim

that the quarter-century delay in fulfilling that

state-law promise violated his due-process rights.

But due to the State’s delay, Mr. Redd would never

receive habeas counsel. Two months after the Ninth

Circuit’s decision, Mr. Redd, by then 78 years old,

died while still waiting for counsel to be appointed.

Petitioners—the California officials responsible

for appointing habeas counsel—asked the Ninth Circuit to dismiss Mr. Redd’s case as moot and vacate

its decision. The Ninth Circuit dismissed the case

but denied vacatur.

The question presented is:

Whether the Ninth Circuit abused its discretion

in not vacating its opinion in the unique context presented by this case, where mootness was attributable to Petitioners’ multi-decade delay and Petitioners

face no legal consequences as a result of the decision.

ii

PARTIES TO THE PROCEEDING

Petitioners Patricia Guerrero, Chief Justice of

California and Kimberly Menninger, Judge of the

Superior Court of California, were DefendantsAppellees below.

Respondent Stephen Moreland Redd was the

Plaintiff-Appellant below. Respondent died on December 21, 2023 while Defendants-Appellees had a

petition for rehearing en banc pending and the court

below never substituted his estate. Counsel for Respondent filed an unopposed motion for substitution

of his estate on March 13, 2025 with this Court.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................ i

PARTIES TO THE PROCEEDING .......................... ii

TABLE OF AUTHORITIES .................................... iii

INTRODUCTION ..................................................... 1

STATEMENT OF THE CASE .................................. 2

California Law Entitles Indigent Capital

Prisoners To State-Funded Habeas

Counsel. ......................................................... 2

Mr. Redd Sues As Part Of A Two-Decade

Effort To Obtain His Guaranteed Counsel. . 5

The Ninth Circuit Issues A Limited Decision

Permitting Mr. Redd’s Claims To Proceed

Past A Motion To Dismiss. ........................... 7

Following Mr. Redd’s Death, The Ninth

Circuit Denies Petitioners’ Motion To

Vacate Its Decision...................................... 10

REASONS TO DENY CERTIORARI ..................... 13

I.

The Claimed Split Does Not Warrant

Certiorari. ......................................................... 13

II. The Ninth Circuit Did Not Abuse Its

Discretion In Declining Vacatur Here

Based On The Equities Presented. .................. 20

III. Petitioners’ Attack On The Merits Of The

Ninth Circuit’s Panel Opinion Does Not

Justify This Court’s Intervention. ................... 26

CONCLUSION ........................................................ 31

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Animal Legal Def. Fund v. Veneman,

490 F.3d 725 (9th Cir. 2007)................................16

Armster v. U.S. Dist. Ct. for the Cent.

Dist. of Cal.,

806 F.2d 1347 (9th Cir. 1986)..............................15

Azar v. Garza,

584 U.S. 726 (2018).............................. 2, 13, 21, 22

Bastien v. Off. of Senator Ben

Nighthorse Campbell,

409 F.3d 1234 (10th Cir. 2005)......................17, 19

Bell v. Burson,

402 U.S. 535 (1971)................................................8

Black Mesa Water Coal. v. Jewell,

797 F.3d 1185 (9th Cir. 2015)..............................15

In re Bower,

38 Cal. 3d 865 (1985) .............................................4

Bumpus v. Clark,

702 F.2d 826 (9th Cir. 1983)................................16

Castle Rock v. Gonzales,

545 U.S. 748 (2005)........................................28, 30

Clarke v. United States,

915 F.2d 699 (D.C. Cir. 1990) ..............................18

Clipper v. Takoma Park,

898 F.2d 18 (4th Cir. 1989)..................................18

Crespin v. Ryan,

51 F.4th 819 (9th Cir. 2022) ................................16

v

Dickens v. Ryan,

740 F.3d 1302 (9th Cir. 2014)..............................16

Dickens v. Ryan,

744 F.3d 1147 (9th Cir. 2014)..............................16

Experimental Holdings, Inc. v. Farris,

503 F.3d 514 (6th Cir. 2007)................................29

Farmer v. McDaniel,

692 F.3d 1052 (9th Cir. 2012)..............................16

In re Ghandtchi,

705 F.2d 1315 (11th Cir. 1983)............................19

In re Grand Jury Investigation,

399 F.3d 527 (2d Cir. 2005) ...........................17, 19

Griffey v. Lindsey,

349 F.3d 1157 (9th Cir. 2003)..............................16

Gutierrez v. Saenz,

93 F.4th 267 (5th Cir. 2024) ................................28

Harrel v. Raoul,

144 S. Ct. 2491 (2024)..........................................27

Hirschfeld v. Bureau of Alcohol,

Firearms, Tobacco & Explosives,

14 F.4th 322 (4th Cir. 2021) ..........................18, 19

Humphreys v. DEA,

105 F.3d 112 (3d Cir. 1996) ...........................17, 23

Ind. Union of Flight Attendants v. Pan

Am. World Airways, Inc.,

966 F.2d 457 (9th Cir. 1992)................................16

Key Enters. of Del., Inc. v. Venice Hosp.,

9 F.3d 893 (11th Cir. 1993)..................................19

vi

Logan v. Zimmerman Brush Co.,

455 U.S. 422 (1982)......................................8, 9, 29

Martinez v. Ryan,

566 U.S. 1 (2012)....................................................4

Mathews v. Eldridge,

424 U.S. 319 (1976)........................................28, 29

Medina v. California,

505 U.S. 437 (1992)..............................................28

Memphis Light, Gas & Water Div. v.

Craft,

436 U.S. 1 (1978)....................................................8

Microsoft Corp. v. ITC,

No. 12-1445, 2014 WL 10209132

(Fed. Cir. Jan. 3, 2014) ........................................20

Mintzes v. Buchanon,

471 U.S. 154 (1985)..............................................23

In re Morgan,

50 Cal. 4th 932 (2010)............................................3

O’Bannon v. Town Ct. Nursing Ctr.,

447 U.S. 773 (1980)................................................8

O’Shea v. Littleton,

414 U.S. 488 (1974)..............................................30

Perez-Garcia v. United States,

No. 24-6203 (U.S. May 19, 2025).........................15

Redd v. Chappell,

574 U.S. 1041 (2014)..........................................5, 6

Ryan v. Nash,

559 U.S. 999 (2010)..............................................23

vii

U.S. Bancorp Mortg. Corp. v. Bonner

Mall P’ship,

513 U.S. 18 (1994).................. 11, 12, 13, 21, 25, 26

In re United States,

927 F.2d 626 (D.C. Cir. 1991) ..............................18

United States v. Flute,

951 F.3d 908 (8th Cir. 2020)................................19

United States v. Green,

507 U.S. 545 (1993)..............................................23

United States v. Perez-Garcia,

115 F.4th 1002 (9th Cir. 2024) ............................15

United States v. Schaffer,

240 F.3d 35 (D.C. Cir. 2001) ................................18

Statutes & Rules

42 U.S.C. § 1983 ..........................................................5

Cal. Gov’t Code § 68661(a) ..........................................3

Cal. Gov’t Code § 68662 ..............................................2

Cal. Gov’t Code § 68662(a) ..........................................3

Cal. Gov’t Code § 68665(a) ..........................................4

Cal. Gov’t Code § 68665(b) ..........................................4

Cal. Gov’t Code § 68666 ..............................................4

Cal. Penal Code §1509(b) ............................................3

Fed. R. Civ. P. 35 .......................................................11

Cal. R. Ct. 4.561(e)(2) ..................................................3

Cal. R. Ct. 4.562(f) .......................................................3

Cal. R. Ct. 10.101(c)(2) ................................................4

INTRODUCTION

Stephen Moreland Redd, a capital prisoner in

California, had a right to appointed counsel under

state law. But for 26 years he was denied that right.

On appeal, the Ninth Circuit issued a limited, unanimous decision on his claims. The court held that Mr.

Redd had adequately pled a due-process claim sufficient to survive a motion to dismiss based on Petitioners’ failure to appoint him the habeas counsel to

which he was entitled. The court made clear, however, that Petitioners could potentially successfully defend their delay and ultimately avoid liability on

remand. Thereafter, Mr. Redd, then 78 years old,

passed away.

With their petition for en banc review pending at

the time of Mr. Redd’s death, Petitioners sought

dismissal of the case based on mootness and vacatur

of the court’s decision. The Ninth Circuit dismissed

the case but held that Petitioners had not established entitlement to the equitable remedy of vacatur. A majority of the judges voted against taking

the case en banc in order to vacate the decision.

Petitioners now seek this Court’s intervention.

They primarily argue that this Court’s review is justified by attempting to manufacture a circuit split

over the standard for vacatur when a case becomes

moot due to happenstance unrelated to the parties’

actions while an en banc petition is pending. As an

initial matter, the mootness of this case due to Mr.

Redd’s death after a 26-year delay by Petitioners is

not mere happenstance. But for their long delay, Mr.

Redd’s rights would have been fulfilled decades ago.

2

Moreover, the claimed split does not withstand

scrutiny. Many cases that Petitioners cite do not

even match their question presented, which is limited to appeals that “became moot by happenstance

while a petition for rehearing was pending.” Pet. i. In

reality, there is no split. The circuits all apply an equitable, case-specific approach to determine whether

vacatur is appropriate under particular circumstances. The circuits’ unsurprising and uniform application of this Court’s mootness precedents

requires no further review or intervention by this

Court.

Under this Court’s well-established precedent,

vacatur is a matter of equitable relief, with “the decision whether to vacate turn[ing] on ‘the conditions

and circumstances of the particular case.’” Azar v.

Garza, 584 U.S. 726, 729 (2018). Notably, Petitioners

have almost nothing to say about the equities of this

case in seeking this Court’s relief. And for good reason: In deciding not to vacate the panel’s narrow, interlocutory opinion, the Ninth Circuit correctly

weighed the equities consistent with this Court’s

precedents.

The petition should be denied.

STATEMENT OF THE CASE

California Law Entitles Indigent Capital

Prisoners To State-Funded Habeas Counsel.

California Government Code section 68662 provides that the “superior court that imposed the sentence shall offer to appoint counsel to represent a

3

state prisoner subject to a capital sentence for purposes of state postconviction proceedings.” § 68662(a)

(emphasis added). The language of the statute is

mandatory: The sentencing court “shall enter an order” appointing counsel “upon a finding that the person is indigent and has accepted the offer to appoint

counsel or is unable to competently decide whether

to accept or reject that offer.” Id.; see also Cal. Penal

Code § 1509(b) (similar).

Consistent with the statute’s directive, the California Supreme Court’s policies concerning capital

cases provide that habeas counsel should be appointed either “simultaneously with the appointment of

appellate counsel or at the earliest practicable time

thereafter.” Pet. App. 36a. And the California Supreme Court’s caselaw directs “expeditious appointment” of habeas counsel in capital cases “to

investigate potential claims for relief and to prepare

a habeas corpus petition at roughly the same time

that appellate counsel is preparing an opening brief

on appeal.” In re Morgan, 50 Cal. 4th 932, 937

(2010).

California law places responsibility on the state’s

judiciary as part of their administrative role to ensure this statutory guarantee is fulfilled. Superior

court judges are responsible for “develop[ing] and

implement[ing] a plan to identify and recruit qualified counsel who may apply to be appointed” to represent indigent capital prisoners. Cal. R. Ct. 4.562(f).

And they have authority to appoint as habeas counsel both qualified private attorneys and attorneys

from a range of public sources. Cal. Gov’t Code

§ 68661(a); see also Cal. R. Ct. 4.561(e)(2).

4

The California Supreme Court is charged, along

with the California Judicial Council, with adopting

“binding and mandatory competency standards for

the appointment of counsel.” Cal. Gov’t Code

§ 68665(a), (b). It is required to “reevaluate the

standards as needed to ensure” competent counsel,

including “to avoid unduly restricting the available

pool of attorneys so as to provide timely appointment.” Id. The Chief Justice of the California Supreme Court has the power to “allocate funding

appropriated” for the Supreme Court’s annual budget to the Habeas Corpus Resource Center, one source

for appointed attorneys. Cal. R. Ct. 10.101(c)(2). And

the California Supreme Court further has the authority to set policy for compensation and payment of

litigation expenses for appointed habeas counsel.

Cal. Gov’t Code § 68666.

California’s guarantee of habeas counsel is critical to ensuring that prisoners with the most severe

sentences have an opportunity to raise some of their

most consequential legal claims. California law requires “resort to habeas corpus,” rather than direct

appeal, anytime “reference to matters outside the

record is necessary to establish that a defendant has

been denied a fundamental constitutional right.” In

re Bower, 38 Cal. 3d 865, 872 (1985). Accordingly,

state habeas review is the only means to raise challenges to criminal convictions such as ineffective assistance of counsel, newly discovered evidence, or the

prosecution’s reliance on false evidence. Pet. App.

49a. And assistance of an attorney is critical to fully

presenting those claims for review. See Martinez v.

Ryan, 566 U.S. 1, 12 (2012) (“To present a claim of

ineffective assistance at trial in accordance with the

5

State’s procedures, then, a prisoner … needs an effective attorney.”).

Mr. Redd Sues As Part Of A Two-Decade Effort To Obtain His Guaranteed Counsel.

Mr. Redd was convicted and sentenced to death

in California in 1997. Pet. App. 53a. The California

Supreme Court found that he was indigent and

therefore entitled under California law to habeas

counsel. It appointed him counsel for his direct appeal; however, it did not appoint him habeas counsel.

Id. Mr. Redd lost his direct appeal in 2010. Id. Still,

more than a decade after he received his death sentence, no habeas counsel was appointed to him. Id.

Without habeas counsel, he could not pursue any

claims that depended on newly discovered or extrarecord evidence concerning his culpability or the sufficiency of his representation.

Mr. Redd wrote multiple letters requesting appointment of habeas counsel. Id. He also attempted

to file a pro se federal petition for a writ of habeas

corpus. As Mr. Redd had not finished his state habeas proceedings, however, the district court dismissed

the petition for failure to exhaust state-law remedies

and the Ninth Circuit denied a certificate of appealability. Pet. App. 56a.

Mr. Redd then sought this Court’s review, and

the Court denied his petition. Redd v. Chappell, 574

U.S. 1041 (2014). In a statement respecting the denial of certiorari, however, Justice Sotomayor, joined

by Justice Breyer, suggested that Mr. Redd “might

seek to bring a 42 U.S.C. § 1983 suit contend-

6

ing … the State’s failure to provide him with the

counsel to which he is entitled violates the Due Process Clause.” Id. (Sotomayor, J., respecting the denial of certiorari).

Mr. Redd subsequently filed suit under Section

1983. He styled the complaint as a putative class action on behalf of capital prisoners in California similarly awaiting appointment of habeas counsel. The

operative complaint named as defendants the justices of the California Supreme Court and the judges of

the California Superior Courts (Petitioners here),

based on their duties as court administrators responsible for appointing habeas counsel. Mr. Redd

sought only declaratory relief: a declaratory judgment that Petitioners’ delays in appointing counsel

violated the procedural due process rights of the

class members. As to his specific claims, he alleged

that during his decades-long wait for counsel, important witnesses for his habeas claims had either

died or had memory loss, and that important documents and exculpatory evidence had been lost or destroyed. Pet. App. 54a-55a.

The district court dismissed Mr. Redd’s complaint. As a threshold matter, the district court held

that Mr. Redd had standing and that there were no

grounds for abstention as Mr. Redd did not seek any

“continued intervention by federal courts into state

judicial affairs.” Pet. App. 110a; see Pet. App. 107a110a. It also rejected Petitioners’ Eleventh Amendment immunity arguments. Pet. App. 110a-111a.

But the court found that the complaint failed to state

a claim for violation of procedural due process. Pet.

App. 116a-117a.

7

With the complaint dismissed on the pleadings,

the class of similarly situated capital prisoners that

Mr. Redd had proposed was never certified.

The Ninth Circuit Issues A Limited Decision

Permitting Mr. Redd’s Claims To Proceed Past

A Motion To Dismiss.

The unanimous Ninth Circuit reversed dismissal

in a narrow interlocutory ruling holding that Mr.

Redd had advanced a “legally plausible” claim sufficient to survive a motion to dismiss. Pet. App. 49a.

First, in agreement with the district court, the

court of appeals rejected Petitioners’ argument that

Mr. Redd lacked standing. Pet. App. 59a. The court

explained that there was no question that Petitioners had the authority to appoint the habeas counsel

Mr. Redd requested, and that Mr. Redd alleged that

Petitioners could have taken action to reduce the delay in appointments. Pet. App. 61a-63a. The court,

however, emphasized that, if the case proceeded to

summary judgment, Mr. Redd would bear the burden of “‘offer[ing] evidence and specific facts demonstrating each element’ of standing, including

redressability.” Pet. App. 63a.

The court next rejected Petitioners’ abstention

argument, again in agreement with the district

court. Pet. App. 64a. Once again, the court noted

that Petitioners would have another opportunity to

raise their abstention argument if warranted. The

court noted that “the district court may reassess

whether abstention is appropriate should [Mr. Redd]

8

seek class certification” and specified that its opinion

“d[id] not pass on that question.” Pet. App. 75a.

Turning to the merits, the court of appeals found

that Mr. Redd had plausibly alleged a violation of his

procedural due-process rights at this preliminary

stage of the case. Pet. App. 75a. As the court was addressing a motion to dismiss, “the question … was

‘not whether [Redd] will ultimately prevail’ on his

procedural due process claim … but whether his

complaint was sufficient to cross the federal court’s

threshold.” Pet. App. 76a.

The court first held that California’s specific law

“gives rise to a protected property interest in appointed counsel.” 1 Pet. App. 79a. “The hallmark of

property … is an individual entitlement grounded in

state law.” Pet. App. 78a (quoting Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982)). A state

may establish a property interest in a wide range of

entitlements, including in utility services, Memphis

Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9, 11-12

(1978), driver’s licenses, Bell v. Burson, 402 U.S.

535, 539 (1971), nursing care, O’Bannon v. Town Ct.

Nursing Ctr., 447 U.S. 773, 786 (1980), and even a

cause of action, Logan, 455 U.S. at 429-30. The

Ninth Circuit explained that California’s statutory

1 The court did not reach Mr. Redd’s alternative argument that

California’s entitlement also created a protected liberty

interest. Pet. App. 75a. As for Mr. Redd’s separate claim that

Petitioners’ delay violated his non-statutory liberty interest

inherent in habeas, the panel concluded that the complaint

failed to state that claim. Pet. App. 92a-93a.

9

guarantee of counsel was such an entitlement: It had

“mandatory language” that “lef[t] no discretion to

deny habeas counsel to indigent capital prisoners

who opt for appointed counsel.” Pet. App. 78a.

Notably, Petitioners did not dispute below that

the statutory entitlement created a property interest. Pet. App. 79a. Their sole argument was “that because California does not guarantee the appointment

of counsel within a specific time frame, ‘under California law, Redd has received everything to which he

is entitled’” despite never having had counsel actually appointed. Id. The court of appeals rejected that

argument. First, it held that Petitioners misrepresented state law: Myriad California code sections, as

well as California Supreme Court cases and government guidance, require that counsel be appointed

expeditiously. Pet. App. 79a-82a. Second, the court

explained that Petitioners’ argument “misunderstands the nature of due process protections.” Pet.

App. 83a. “State law creates the property interest,

but it is federal constitutional law that determines

the procedures required to protect that interest.” Id.

(citing Logan, 455 U.S. at 432). A State may not elect

to create a property right and then deprive the beneficiary without due process. The court held that, at

least at the motion-to-dismiss stage, it was “legally

plausible that the state’s procedures,” which allegedly deprived Mr. Redd of counsel for 26 years, were

“inadequate to protect that interest.” Pet. App. 85a.

The court stressed that its ruling did not translate into certain victory for Mr. Redd on remand. Mr.

Redd still would have to establish evidentiary support for his allegations that the delay in appoint-

10

ment of counsel had damaged his habeas case in a

way that reduced the value of counsel for him. Pet.

App. 87a. And, whatever Mr. Redd’s harm, the Ninth

Circuit recognized that “the state’s challenge in

providing capital habeas counsel…is great” and that

Petitioners would have the opportunity “to put on evidence that requiring them to take any further action is unduly burdensome.” Id. Even if Mr. Redd

were to prevail in his case, that did not mean anything for a future case—relief ultimately might be

limited to Mr. Redd’s circumstances, with the courts

“draw[ing] the line at the 26-plus year delay [Mr.

Redd] has experienced.” Pet. App. 74a.

Following Mr. Redd’s Death, The Ninth Circuit Denies Petitioners’ Motion To Vacate Its

Decision.

The Ninth Circuit issued its decision in October

2023. Pet. App. 45a. Petitioners sought rehearing en

banc shortly thereafter. Dkt. 53. 2 A month later, before he had the chance to respond to the petition for

rehearing, Mr. Redd died in his prison cell at the age

of 78. Pet. App. 4a. By then, he had been awaiting

the appointment of habeas counsel for 26 years.

Petitioners informed the court of appeals of Mr.

Redd’s death and suggested that “Mr. Redd’s death

may render moot this appeal and this action and

may further justify vacating the published panel

opinion that is the subject of [the] pending petition

2 All “Dkt.” references refer to the underlying 9th Circuit

case, Redd v. Guerrero, No. 21-55464.

11

for rehearing and rehearing en banc.” Dkt. 61. Petitioners requested briefing to “address issues of

mootness, dismissal, and vacatur of the opinion.” Id.

The Ninth Circuit took Petitioners up on their suggestion. It issued an order directing the parties to

“address the issue of Redd’s death, including procedural questions of mootness, dismissal, or vacatur as

relevant” in their response and reply to the petition

for rehearing. Dkt. 62.

As the “party seeking relief from the status quo

of the appellate judgment,” Petitioners bore the burden of establishing their “equitable entitlement” to

vacatur of the panel’s validly issued opinion. U.S.

Bancorp Mortg. Corp. v. Bonner Mall P’ship, 513

U.S. 18, 26 (1994). In their reply in support of rehearing, Petitioners claimed, however, that vacatur

was automatically required whenever a party dies

after a panel opinion is issued where there is a pending petition for en banc review. Dkt. 73 at 8.

The unanimous panel granted Petitioners’ request to dismiss the appeal as moot. Pet. App. 3a.

But the panel declined Petitioners’ request to vacate

its opinion. Id. Petitioners’ petition for rehearing en

banc failed to garner a majority of votes and was accordingly denied as well. Pet. App. 3a-4a. 3

3 After Mr. Redd died, his counsel moved to substitute the

representative of his estate, Melissa Powe, in the case pursuant

to Federal Rule of Appellate Procedure 43(a)(1). The Ninth Circuit denied the substitution motion when it dismissed the appeal as moot, apparently viewing the substitution issue as

moot. Pet. App. 3a. Counsel also moved in this Court to substi-

12

The Ninth Circuit’s order itself did not provide

reasons for the denial of vacatur. Judge Berzon,

however, joined by five other judges, issued a statement “respecting the denial of rehearing en banc.”

Pet. App. 4a. The statement explained that, given

the mootness of the case, “the only question an en

banc court could decide is whether the Redd panel

abused its discretion in declining to vacate its opinion.” Pet. App. 6a. As to vacatur, the statement noted that a court weighs “equitable considerations

when deciding whether vacatur is appropriate,” including the opinion’s value “to the legal community

as a whole,” any prejudice to the parties of letting

the opinion stand, and whether the mootness arose

due to voluntary conduct. Pet. App. 6a-7a.

Addressing the value to the legal community, the

statement noted that the general rule is that precedent is legally valid and “should stand unless a court

concludes that the public interest would be served by

a vacatur.” Pet. App. 7a (quoting Bancorp, 513 U.S.

at 26). It emphasized that “[t]he Redd opinion focused on Redd’s individual claims,” and any claims

by other capital prisoners “w[ould] have to be decided on the facts of their cases.” Id. It found, however,

that the Redd opinion had public value as “a decisional framework for district courts deciding these

cases,” at least “at the motion-to-dismiss stage.” Id.

tute Ms. Powe. The Court has not acted on the motion, but the

Clerk’s Office contacted counsel and indicated that the Court

expected counsel to file the brief in opposition on Ms. Powe’s

behalf.

13

Given this interlocutory posture, the statement

also noted that there was little prejudice to the Petitioners in denying vacatur. They were left with no

judgment against them—only a determination that a

now-moot case could have gone forward past the

pleading stage. Any future plaintiff relying on Redd

would “not be entitled to relief unless they show

prejudice to their habeas prospects due to delay in

the appointment of counsel.” Id. And Petitioners

would have recourse to seek further review, including en banc review and certiorari, should another

claim in the future proceed to any judgment against

them. Id. Although the statement concluded that the

mootness here was “involuntary,” it found that insufficient to require vacatur given the other equities at

issue. Pet. App. 8a-9a.

Judge Bennett, joined by five other judges, dissented on the ground that the court should have taken the case en banc to vacate the panel opinion. Pet.

App. 20a.

REASONS TO DENY CERTIORARI

I.

The Claimed

Certiorari.

Split

Does

Not

Warrant

The standard for vacatur is well-established.

Once mootness arises, the party seeking vacatur

bears the burden of demonstrating their “equitable

entitlement to th[at] extraordinary remedy.”

Bancorp, 513 U.S. at 26. The party seeking vacatur

must demonstrate that the “unique circumstances of

th[e] case and the balance of equities weigh in favor

of vacatur.” Azar, 584 U.S. at 730. But Petitioners

14

argue that this Court’s review is required to resolve

a circuit split over whether to vacate a decision in

the unusual event where an appeal becomes moot

“by happenstance” after a court of appeals issues its

opinion but before the mandate issues.

As an initial matter, while Mr. Redd’s death itself was not a voluntary act by either party, there

was nothing “happenstance” about it. Pet. 24. His

death in prison after 26 years of repeated pleas for

appointed counsel went unanswered is hardly unrelated to the substantive claims—claims that unconstitutional delays were rendering his protected

rights a nullity. Mr. Redd repeatedly demanded that

his right to counsel be fulfilled, fearing his claims of

innocence would never be adjudicated during his

lifetime. To treat this case as just another example

of run-of-the-mill happenstance mootness gravely

misrepresents the circumstances underlying the action.

But even if cases addressing true happenstance

contexts could be treated as relevant here, the

claimed circuit split cannot withstand scrutiny.

These decisions simply reflect courts applying the

settled equitable inquiry to different contexts and

circumstances. Moreover, the situation of mootness

arising after a court of appeals’ decision has issued

but before the mandate issues arises infrequently,

making any claimed split of little consequence.

A. Petitioners contend that the Second, Third,

Ninth, and Tenth Circuits “disfavor vacating their

own opinions when a case later becomes moot while

the appeal remains pending.” Pet. 17. But like all

15

circuits, these courts apply an equitable standard to

the particular facts of the cases. Sometimes that results in vacatur and sometimes not, depending on

the circumstances of a particular case. Moreover,

many of the cited cases do not address Petitioners’

question presented at all.

Notably, most of the cases that Petitioners cite to

illustrate the Ninth Circuit’s supposed “repeated[]

refus[al] to vacate its own decisions” do not fall within the narrow confines of Petitioners’ own question

presented, which involves only post-decision, premandate mootness by happenstance. Pet. i; cf. Pet.

18-19. In Armster v. U.S. District Court for the Central District of California, for instance, although the

government “incorrect[ly]” suggested that the case

had become moot, it was simply “not moot.” 806 F.2d

1347, 1361 (9th Cir. 1986). Likewise, in Black Mesa

Water Coalition v. Jewell, the case became moot only

after the mandate had already issued—because of a

settlement, not happenstance—and neither party

asked for vacatur. See 797 F.3d 1185 (9th Cir. 2015);

Notice of Settlement, No. 12-16980 (9th Cir. June 25,

2015), Dkt. 44. Similarly, in United States v. PerezGarcia, the litigation over certain conditions of pretrial release became moot not by happenstance, but

rather because one appellant “absconded and had his

bond revoked” and the other “was convicted and sentenced.” 115 F.4th 1002, 1004 n.1 (9th Cir. 2024).

Notably, this Court denied the petitioners’ request

for it to vacate the Ninth Circuit’s opinion in PerezGarcia under Munsingwear. See Perez-Garcia v.

United States, No. 24-6203 (U.S. May 19, 2025).

These cases thus have no bearing on the question

that Petitioners presented.

16

Petitioners also point to Crespin v. Ryan, 51

F.4th 819 (9th Cir. 2022), and Dickens v. Ryan, 740

F.3d 1302 (9th Cir. 2014) (en banc), but those cases

do not support the claimed split. Pet. 18-19. In Dickens, both sides’ claims “ha[d] been subjected to en

banc review” before the case became moot. Dickens v.

Ryan, 744 F.3d 1147, 1148 (9th Cir. 2014). That

meant, as Petitioners conceded below, that “equity

did not weigh in favor of vacatur.” Dkt. 73 at 11. And

in Crespin, no party had requested vacatur prior to

the court’s consideration of it. 51 F.4th at 820. Thus,

the case sheds little light on Petitioners’ question

presented, as that issue received no adversarial testing there.

What’s more, the Ninth Circuit has regularly vacated its own opinions where the equities favor doing

so for cases involving mootness by happenstance

that arises before the mandate issues. See Farmer v.

McDaniel, 692 F.3d 1052 (9th Cir. 2012); Griffey v.

Lindsey, 349 F.3d 1157 (9th Cir. 2003); Bumpus v.

Clark, 702 F.2d 826 (9th Cir. 1983). And the Ninth

Circuit has vacated its own opinions for mootness

arising outside of that hyper-narrow circumstance

too, such as when the parties reach a settlement or

one party’s unilateral action moots the case before

the mandate issues. See Animal Legal Def. Fund v.

Veneman, 490 F.3d 725, 726 (9th Cir. 2007); Ind. Union of Flight Attendants v. Pan Am. World Airways,

Inc., 966 F.2d 457, 459-60 (9th Cir. 1992). That is a

far cry from the “slant against vacating its own decisions” that Petitioners accuse the Ninth Circuit of

exhibiting. Pet. 19. These cases prove that the Ninth

Circuit does not “systematically shield[]” its decisions by refusing to vacate under Munsingwear; it

17

sometimes vacates and sometimes does not, depending on the equities. Contra Pet. 21.

Like the Ninth Circuit, the Third Circuit recognizes that some cases will warrant vacatur and others will not, depending on the equities of the

particular cases. Contra Pet. 17. For example, in

Humphreys v. DEA, the Third Circuit denied vacatur

where the plaintiff died after the panel’s decision issued but before the mandate issued, because a “balancing” of the equities favored keeping the panel’s

decision on the books. 105 F.3d 112, 116 (3d Cir.

1996). At the same time, however, Humphreys made

clear that the “discretionary power” to determine

“whether or not to vacate a previously issued decision” can be “exercised in either direction” depending

on the facts. Id. at 114, 117.

As for the Second and Tenth Circuits, they have

merely held that they have “discretion” to deny vacatur “where the circumstances leading to mootness

occur after we file our decision but before the mandate has issued.” Bastien v. Off. of Senator Ben

Nighthorse Campbell, 409 F.3d 1234, 1236 (10th Cir.

2005) (quoting In re Grand Jury Investigation, 399

F.3d 527, 528 n.1 (2d Cir. 2005)). Denying vacatur in

a single case based on the unique equities of that

case hardly demonstrates a penchant for “disfavor[ing] vacating their own opinions” in either circuit. Cf. Pet. 17.

B. Petitioners put the D.C., Fourth, Eighth, and

Eleventh Circuits on the other side of their ledger

and insist that “the panel opinion would already

have been vacated” in those courts. Pet. 20. But as

18

with the circuits just discussed, these courts likewise

apply an equitable, case-specific approach to determine whether vacatur is appropriate.

Vacatur for post-decision, pre-mandate mootness

is not a hard-and-fast rule in the D.C. Circuit. While

United States v. Schaffer observed that the D.C. Circuit “generally … vacates any outstanding panel decisions” in that situation, 240 F.3d 35, 38 (D.C. Cir.

2001), 4 the court has also recognized that the ultimate equitable test remans case-specific and discretionary, see In re United States, 927 F.2d 626, 627

(D.C. Cir. 1991) (“the court of appeals may vacate its

panel decision when a case becomes moot pending

disposition of a petition for rehearing and suggestion

for rehearing en banc and before issuance of the

mandate” (emphasis added)).

The same holds true in the Fourth Circuit. Although vacating the panel’s opinion is the court’s

“customary practice” when a case becomes moot before the mandate issues, “it is not, as once commonly

thought, mandatory.” Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco & Explosives, 14 F.4th 322,

327 (4th Cir. 2021); see also Clipper v. Takoma Park,

898 F.2d 18, 19 (4th Cir. 1989) (refusing to vacate

Petitioners also cite Clarke v. United States, 915 F.2d

699, 706 (D.C. Cir. 1990) (en banc), for the proposition that vacating the panel’s decision is “standard practice” where a case

becomes moot before the mandate issues. Pet. 15-16. But

Clarke involved mootness by way of the losing party’s unilateral action, not mootness by happenstance. 915 F.2d at 706-07.

4

19

the panel’s opinion where the case became moot

while a petition for rehearing en banc was pending).

The Eighth Circuit similarly recognizes that “vacatur is an equitable remedy, not an automatic

right.” United States v. Flute, 951 F.3d 908, 909 (8th

Cir. 2020) (citation omitted). In Flute, the Eighth

Circuit declined to vacate the panel’s opinion not just

because the mootness there arose from a plea bargain instead of happenstance, but also because the

court found persuasive the Second and Tenth Circuits’ explanations that appellate courts have discretion to leave panel opinions “intact” when a case

becomes moot after the decision issues but before the

mandate does. Id. at 909-10 (quoting In re Grand

Jury, 399 F.3d at 529 n.1, and Bastien, 409 F.3d at

1235).

That leaves the Eleventh Circuit. Petitioners cite

two cases—one 42 years old and the other 32 years

old—to suggest that vacatur is mandatory for postdecision, pre-mandate mootness. Pet. 16-17 (citing In

re Ghandtchi, 705 F.2d 1315, 1316 (11th Cir. 1983),

and Key Enters. of Del., Inc. v. Venice Hosp., 9 F.3d

893, 899-900 (11th Cir. 1993) (en banc)). The age of

those cases matters because they predate Bancorp,

as does another Eighth Circuit case that Petitioners

cite. See Pet. 16. As the Fourth Circuit explained,

“[b]efore Bancorp, some believed dictum in Munsingwear required vacating opinions after the case

became moot. See, e.g., In re Ghandtchi, 705 F.2d [at

1316].” Hirschfeld, 14 F.4th at 327 n.5. But Bancorp—decided in 1994—made clear “that the Munsingwear ‘mandate’ was dicta and that equitable

principles govern the practice.” Hirschfeld, 14 F.4th

20

at 327 n.5. Thus, to the extent Ghandtchi and Key

Enterprises describe vacatur as mandatory, they are

not applying this Court’s current established standard.

Moreover, that Petitioners had to delve back

roughly 25-40 years to find cases to support their position illustrates how rarely the question presented,

addressing the small window between when a panel

issues its opinion and when the mandate issues,

arises. Contra Pet. 23-24. Petitioners’ question presented simply does not require this Court’s attention, both because it is rare and because the circuits

agree that they have discretion to determine whether to vacate in light of the equities of a given case. In

the Federal Circuit’s words, “the great weight of authority, through holdings or analysis, supports …

treating the question of what a court should do when

mootness arises after decision as subject to equitable

and pragmatic considerations.” Microsoft Corp. v.

ITC, No. 12-1445, 2014 WL 10209132, at *3 (Fed.

Cir. Jan. 3, 2014). That equitable, case-specific approach is “the ordinary application of Munsingwear,”

contrary to Petitioners’ view that vacatur should occur automatically whenever the losing party had a

rehearing petition pending when the case became

moot. Pet. 20.

II. The Ninth Circuit Did Not Abuse Its

Discretion In Declining Vacatur Here

Based On The Equities Presented.

Under this Court’s precedents and in every circuit, vacatur is an equitable determination, not an

automatic right. Yet Petitioners seek to use the

21

Munsingwear doctrine to create an automatic right

to vacatur when a case becomes moot by happenstance while a petition for rehearing remains pending. As discussed above, this is not a happenstance

case. But even beyond that threshold flaw, Petitioners are simply wrong. Munsingwear establishes no

such right. Rather, as Petitioners acknowledge, the

equitable doctrine requires courts “to craft relief that

is ‘most consonant to justice.’” Pet. 24 (citation omitted). That is just what the court of appeals did here

in concluding that the equities tilt sharply against

vacatur under the specific circumstances of this case.

A. Vacatur is a form of “equitable relief.” Bancorp, 513 U.S. at 26. Petitioners, however, largely

abandon any effort to establish their equitable entitlement to vacatur. Instead, their primary contention is that they are entitled to vacatur as a matter

of right merely because mootness occurred. See Pet.

24-27.

This Court’s precedent forecloses that argument.

This Court has specifically rejected the claim that

“every moot case will warrant vacatur.” Azar, 584

U.S. at 729; see Bancorp, 513 U.S. at 27 (vacatur

never required on “systemic grounds”). Instead,

“[b]ecause th[e] practice is rooted in equity, the decision whether to vacate turns on ‘the conditions and

circumstances of the particular case.’” Azar, 584 U.S.

at 729.

Once mootness is established, the party seeking

vacatur therefore bears the burden of demonstrating

their “equitable entitlement to the extraordinary

remedy of vacatur.” Bancorp, 513 U.S. at 26. As

22

discussed above, this means showing that the

“unique circumstances of th[e] case and the balance

of equities weigh in favor of vacatur.” Azar, 584 U.S.

at 730. Petitioners thus cannot establish their

entitlement to vacatur merely on the grounds of

mootness absent an inquiry into the specific equities

presented, with the party seeking vacatur carrying

the burden.

B. The court of appeals did not abuse its discretion in finding that the equities and circumstances of

this case weigh against vacatur.

The circumstances of this case could not be further removed from the prototype of what this Court

has recognized as the classic case for vacatur: where

a plaintiff “obtain[s] a favorable judgment, take[s]

voluntary action that moots the dispute, and then

retain[s] the benefit of the judgment.” Azar, 584 U.S.

at 729.

Mr. Redd did not take voluntary action to moot

the case. He died from natural causes related to his

advanced age, coupled with living in the harsh conditions of a prison. He died still waiting, after 26

years, for appointment of the state-promised counsel

to represent him in a habeas proceeding seeking to

vindicate his innocence. There is no retained or unfair benefit to Mr. Redd here—only tragic loss and

unfulfilled promises from the State. Mr. Redd’s

death proved true his claim in this case that habeas

counsel decades-delayed is effectively habeas counsel

denied.

23

This is not a case of mere happenstance, wholly

unrelated to the underlying claims. It would be

uniquely inequitable to permit Petitioners, having

deprived Mr. Redd of counsel until his eventual

death, to now benefit from that death by securing

vacatur of the court of appeals’ decision.

Even in pure mootness-by-happenstance cases,

this Court has never adopted either a rule or practice of vacating circuit decisions when a party dies

while a petition for certiorari is pending. See, e.g.,

Ryan v. Nash, 559 U.S. 999 (2010) (Mem.) (not

granting vacatur where death occurred while petition pending). Indeed, this Court historically “does

not vacate a circuit court decision where a party dies

after a petition for certiorari has been granted but

before the Supreme Court has decided the merits”—

a situation where, unlike here, the underlying case

is indisputably worthy of certiorari. Humphreys, 105

F.3d at 114; see, e.g., United States v. Green, 507

U.S. 545 (1993) (Mem.) (vacating order granting writ

of certiorari but not underlying decision); Mintzes v.

Buchanon, 471 U.S. 154 (1985) (Mem.) (same).

And, the court of appeals did not abuse its discretion in assessing that the equities here disfavor

vacatur:

1. Petitioners failed to show any meaningful

prejudice supporting vacatur. The opinion at issue

did not result in any judgment against Petitioners.

Nor did it resolve the question whether Petitioners

could be held liable under the theory Mr. Redd advanced as a general matter. It merely allowed Mr.

Redd’s claims to proceed past the pleading stage. In

24

doing so, it made clear the high hurdles that Mr.

Redd would have to clear to obtain even the limited

declaratory relief he sought. Thus, there is no final

adverse ruling, and the opinion here provides no definite entitlement for future claimants.

Petitioners contend that the prejudice they face

is “plain” because, absent vacatur, other capital prisoners who have been deprived of habeas counsel under California law could sue them under the same

theory that Mr. Redd advanced. Pet. 28. But that is

true regardless of whether this Court vacates the decision below. Vacatur would not grant Petitioners

immunity from future suits from other capital defendants who have been deprived of their right to

habeas counsel for years.

And if such claims are brought, Petitioners

would have every opportunity to defend themselves.

There is nothing “unreviewab[ly] … binding” about

the decision below on Mr. Redd’s claims. Pet. 28. As

the court of appeals itself stated again and again in

the opinion, it was a narrow and interlocutory ruling, limited to the motion-to-dismiss stage and to the

specific allegations pled in Mr. Redd’s complaint concerning Mr. Redd’s specific situation. Should another

capital defendant sue, they would have to state a

claim based on the exact delay in their appointment

of counsel and their specific prejudice from the delay.

And should they be able to do so and the claim proceed to judgment against Petitioners—something the

Ninth Circuit emphasized was far from guaranteed

even in Mr. Redd’s case—Petitioners would have a

full opportunity to challenge every aspect of the

25

holding in that live case, including, if necessary, by

again seeking en banc review and certiorari.

2. The public interest also weighs against vacatur. “Judicial precedents are presumptively correct

and valuable to the legal community as a whole.”

Bancorp, 513 U.S. at 26 (citation omitted). This

Court has specifically held that “[j]udicial precedents…should stand unless a court concludes that

the public interest would be served by a vacatur.” Id.

(emphasis added) (citation omitted). And, contrary to

Petitioners’ suggestion, that public interest is not

just in “orderly procedure” but also in the “[j]udicial

precedents” themselves as “presumptively correct

and valuable.” Id. at 26-27.

Petitioners contend that acknowledging precedent as valuable in and of itself means “deny[ing]

vacatur in precisely those cases that would have received serious consideration for certiorari.” Pet. 23.

But this is a deeply wrongheaded conception of value. District and circuit judges around the country

would likely be surprised to hear that the vast majority of their work has no value because it does not

address issues that meet the specific and unique criteria for certiorari. So would litigants and the general public who rely on those decisions in making

significant legal claims and understanding their legal relationships and obligations to one another. The

criteria for certiorari are oriented to the specific

work of this Court; the value of judicial precedent for

the public is much broader.

Petitioners insist that a court cannot be trusted

to evaluate the appropriateness of vacating its own

26

opinion due to mootness. Pet. 23. Our system of justice, however, rests on the presumption that judges

can handle their cases impartially. Indeed, it is difficult to imagine how the court system would function

if judges were presumed biased in a case based

merely on the fact of their assignment to it. In this

Court and every federal appellate court, for instance,

the judges and justices who rendered a decision

evaluate whether to grant any petition for rehearing

of that decision. Similarly, district courts must decide whether to issue certificates of appealability of

their own decisions.

III. Petitioners’ Attack On The Merits Of The

Ninth Circuit’s Panel Opinion Does Not

Justify This Court’s Intervention.

Despite the fact that their petition asks only for

this Court to review the standard the courts of appeals should apply in determining whether to vacate

a decision under certain procedural circumstances,

Petitioners also attack the Ninth Circuit’s underlying opinion on the merits. As this Court’s precedent

establishes, however, it is “inappropriate ... to vacate

mooted cases, in which we have no constitutional

power to decide the merits, on the basis of assumptions about the merits.” Bancorp, 513 U.S. at 27.

While simultaneously claiming that a case need

not be worthy of this Court’s review under the traditional certiorari standards to merit vacatur, Petitioners argue that “this case in any event would have

been a prime candidate for further review, had respondent’s death not mooted the appeal.” Pet. 29.

The cert-worthiness of the issues decided in the un-

27

derlying panel opinion is an entirely separate issue

from the vacatur-related question that Petitioners

have presented here. Nonetheless, even were this

discussion relevant to the question presented, Petitioners’ arguments about the importance of the underlying opinion are vastly overstated.

A. As discussed above, the underlying opinion is

a limited decision in an interlocutory posture that

neither resulted in any judgment against Petitioners

nor resolved whether they could ever be held liable

under the theory at issue. Cf. Harrel v. Raoul, 144 S.

Ct. 2491, 2492 (2024) (Thomas, J., respecting the

denial of certiorari) (“This Court is rightly wary of

taking cases in an interlocutory posture.”). Petitioners’ primary argument that this case is nonetheless

worthy of further review based on the merits of the

underlying opinion (as opposed to the question presented in their petition for certiorari) is that the

Court previously granted certiorari in what the petition calls a “mirror-image decision on Article III

standing in Gutierrez v. Saenz, No. 23-7809 (Oct. 4,

2024).” Pet. 29. Petitioners’ “mirror” is distorted.

Gutierrez concerns whether redressability can be

established if state officials have independent statelaw grounds as a basis for denying relief addressed

in a federal declaratory judgment. In the decision

under review, the Fifth Circuit held that a defendant

failed to establish redressability where the state

court “ha[d] already found that [the defendant]

would have no right to DNA testing”—what the defendant allegedly had been wrongfully deprived of—

“even if the statutory bar to testing for evidence

about sentencing were held to be unconstitutional.”

28

Gutierrez v. Saenz, 93 F.4th 267, 275 (5th Cir. 2024).

Here, there is no dispute that Mr. Redd had a right

to state-appointed counsel as a matter of state law.

And Petitioners have never claimed that they have

any independent state-law grounds for denying that

counsel to him. Gutierrez therefore is irrelevant to

this case.

B. Petitioners also argue that certiorari on the

merits would have been likely, but for mootness, by

claiming that the merits ruling here was contrary to

this Court’s precedent and splits with one Sixth Circuit decision. As discussed above, this is not a proper

basis for deciding vacatur, but even if it were, the

claimed merits conflicts are illusory.

Petitioners argue that the Ninth Circuit’s recognition of a California-created property interest failed

to follow Castle Rock v. Gonzales, 545 U.S. 748

(2005). Pet. 30. In actuality, the decision cited Castle

Rock, see Pet. App. 79a, and fully complied with Castle Rock’s direction to consider an “‘ascertainable

monetary value’” as a hallmark of a property interest, 545 U.S. at 766.

Petitioners further contend that the Ninth Circuit erred in addressing Mr. Redd’s due-process

claim under Mathews v. Eldridge, 424 U.S. 319

(1976), and not Medina v. California, 505 U.S. 437

(1992). Pet. 30-31. But Medina had no application in

this context. It applies in “assessing the validity of

state procedural rules,” Medina, 505 U.S. at 443,

none of which are at issue here And, notably,

Mathews requires full consideration of the exact

“Government[] interest” Petitioners claim: “the fiscal

29

and administrative burdens” of requiring different

action. 424 U.S. at 335.

Finally, the claimed conflict (Pet. 30) with the

Sixth Circuit’s decision in Experimental Holdings,

Inc. v. Farris, 503 F.3d 514 (6th Cir. 2007), is equally

flawed. The question at issue in Experimental Holdings was whether the plaintiff could claim “a property interest in getting the state to lease [its] real

property.” 503 F.3d at 516. That is wholly irrelevant

to the merits of the due-process claim here, which

was based on a state right to counsel.

C. Petitioners and their amici claim that the

Ninth Circuit’s decision poses unusual federalism

concerns. Pet. 31. These arguments rest on an extreme misreading of the limited decision below. See

Pet. App. 10a-19a. 5 Petitioners put forth the radical

suggestion that federal law cannot set any limits on

state procedures when they infringe on protected

rights. But, as this Court has long held, the Fourteenth Amendment’s guarantee of due process would

be meaningless if “minimum procedural requirements” for protected interests were not “analyzed in

constitutional terms” regardless of whether “the

State may have specified its own procedures that it

may deem adequate.” Logan, 455 U.S. at 432 (internal quotation marks and brackets omitted). Petitioners’ objection is to a basic tenet of our constitutional

structure that cannot be addressed by vacatur here.

5 Notably absent from Petitioners’ list of amici is the State

of California itself.

30

Petitioners cite the O’Shea abstention doctrine

as relevant given their status as judicial officers.

Pet. 31. But, notably, Petitioners themselves did not

challenge the rejection of their O’Shea abstention

claim (by both the Ninth Circuit and the district

court that otherwise ruled in their favor) in seeking

rehearing below. Dkt. 53. For good reason. As the

Ninth Circuit explained, O’Shea abstention is an

“exceedingly rare” doctrine applicable in limited circumstances where the relief sought involves ongoing

federal monitoring of state-court operations. Pet.

App. 65a-66a (citing O’Shea v. Littleton, 414 U.S.

488 (1974)). It is wholly inapplicable, where, as here,

a claim seeks only a declaration and no involvement

whatsoever of federal courts in state-court proceedings. Id. And Petitioners’ claim of inappropriate federal intrusion rings particularly hollow where the

decision at issue did not hold that Petitioners violated any federal constitutional rights or require that

Petitioners take any action whatsoever. The decision

explicitly anticipated that Petitioners could reassert

an abstention argument and demonstrate that requiring them to take any action would be overly burdensome. Pet. App. 87a.

Finally, Petitioners’ amici provide a false flag in

arguing that the merits decision here will trigger

suits by prisoners across the country. Analyzing

whether a state has created a property interest requires a state-specific investigation of the specific

entitlement in question. See Castle Rock, 545 U.S. at

766. The Ninth Circuit’s decision is limited in its

reasoning and scope to specific aspects of California

law. It is unlikely to have a significant impact outside of that State. And of course, this Court can re-

31

view any extension of the ruling of the court of appeals here to the extent it ever happens. There is no

need to grant review of the court of appeals’ sound

application of vacatur principles here based on these

speculative concerns.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Nicole Ries Fox

Lauren A. Weber

ORRICK, HERRINGTON &

SUTCLIFFE LLP

2050 Main Street

Suite 1100

Irvine, CA 92614

Ronald A. McIntire

Taylor R. Russell

PERKINS COIE LLP

1888 Century Park East

Suite 1700

Los Angeles, CA 90067

May 28, 2025

Robert M. Loeb

Counsel of Record

ORRICK, HERRINGTON &

SUTCLIFFE LLP

2100 Pennsylvania Ave.

NW

Washington, DC 20037

(202) 339-8400

rloeb@orrick.com

Katherine E. Munyan

ORRICK, HERRINGTON &

SUTCLIFFE LLP

51 W. 52nd Street

New York, NY 10019