Petitioners Brief — United States v. Sanchez-Gomez, 138 S. Ct. 1532 (2018) (No. 17-312)

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No, 17-312

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In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

RENE SANCHEZ-GOMEZ, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JOHN P. CRONAN

Acting Assistant Attorney

General

EDWIN 8. KNEEDLER

Deputy Solicitor General

Eric J. FEIGIN

ALLON KEDEM

Assistants to the Solicitor

General

DAVID B. GOODHAND

Attorney

Department of Justice

Washington C. 20580-0001

riefs(@usdoj.gov

3 514-2217

QUESTION PRESENTED

Whether the court of appeals erred in asserting au-

thority to review respondents’ interlocutory challenge

to pretrial physical restraints and in ruling on that chal-

lenge notwithstanding its recognition that respondents’

individual claims were moot.

(I)

PARTIES TO THE PROCEEDING

Petitioner, the United States of America, was the

only appellee in the court of appeals. The four

respondents—Rene Sanchez-Gomez, Moises Patricio-

Guzman, Jasmin Isabel Morales (a.k.a. Jasmin Mo-

rales), and Mark William Ring—were appellants in the

court of appeals.

(II)

TABLE OF CONTENTS

Page

KK — ü l

I r 1

Statutory provisions involved 2

— . 2

2 ————— — 13

Argument:

The Ninth Circuit exceeded its authority by

invalidating the security policy in this cases 16

A. The Ninth Circuit lacked statutory authority for

its decision 17

1. The district court’s orders were not final

decisions” immediately appealable under

SD WEG, SERB cccsessncnccsncsoscescsesecevssnscncssevecssccccesssceceee 17

2. The Ninth Circuit did not have authority to

issue a writ of “supervisory mandamus 27

B. Respondents’ claims had become moot before the

Ninth Circuit adjudicated them. 31

1. Respondents lost their personal interest in the

outcome of the litigation when their criminal

220... ——————7r5ir?r 31

2. Respondents’ claims cannot be saved from

mootness by construing their challenges as

“functional class netions“. . . . ivw. 32

3. The exception to mootness for cases “capable of

repetition, yet evading review” does not apply

to respondents’ claims . . . .it. 40

KKK 3 . 14

TABLE OF AUTHORITIES

Cases:

Abney v. United States, 431 U.S. 651 (1977) «0.0.00 20, 22

Bell v. Wolfish, 441 U.S. 520 (1979) . . vst. 25, 29

(111)

Cases—Continued: Page

Berman v. United States, 302 U.S. 211 (1987) e 19

Board of Sch. Comm'rs v. Jacobs,

III —Kͤ 37, 38

Campbell-Ewald Co. v. Gomez, 186 8. Ct. 668 (2016) 31

Cheney v. United States Dist. Court,

542 U.S. 367 (2004)... 14, 15, 27, 28, 29, 30

City of Los Angeles v. Lyons, 461 U.S. 95 (1983)... 40

Cobbledick v. United States, 309 U.S. 323 (1940 18

Cohen v. Beneficial Indus. Loan Corp.,

L 19

Coopers & Lybrand v. Livesay, 437 U.S. 468 (1978) ... 20, 21

County of Riverside v. McLaughlin,

500 U.S. 44 (1991) ...... ..... .. ͤ 24, 29, 35, 38

De Abadia-Peizxoto v. United States Dep't of

Homeland Sec, 277 F. R. D. 572 (N. D. Cal. 2011) 25

Deck v. Missouri, 544 U.S, 622 (2005). 11, 21, 28, 29

DeF unis v. Odegaard, 416 U.S, 312 (1974)... 32

Eatelle v. Williams, 425 U.S. 501 (1976) . .it 28

Flanagan v. United States, 465 U.S. 259 (1984) ....... passim

Florence v. Board of Chosen Freeholders,

566 U.S. 318 (2012)... .. . .es. 25, 29

General Tel. Co v. Falcon, 457 U.S. 147 (19. 37

Genesis Healthcare Corp. v. Symenys,

N D- 35, 36

Gerstein v. Pugh, 420 US. 103 (1975) . passim

Gunn v. Minton, 568 U.S, 251 (2013) tts, 16

Helstoski v. Meanor, 442 U.S, 500 (1979) .. 20, 22

Honig v. Doe, 484 U.S, 305 (1988). .nu. 42

Kingdomware Techs., Inc. v. United States,

196 f. Ct. 19GB i . .. . . . 0. . . e. 6. . 41, 43

Kokkonen v. Guardian Life Ins. Co. of Am.,

460411 16

Cases—Continued: Page

Kremens v. Bartley, 431 U.S. 119 (1977). viii eee 37

Lane v. Williams, 455 U.S. 624 (1982) . . ve 42

Lewis v. Continental Bank Corp., 494 U.S. 472 (1990) ..... 31

Midland Asphalt Corp. v. United States,

489 U.S. 794 (1989)...... 3 19, 20, 21, 22

Mohawk Indus., Inc. v. Carpenter,

558 U.S. 100 (2009) — — 24, 26

Murphy v. Hunt, 455 U.S. 478 (1982) . tutte 40

O'Shea v. Littleton, 414 U.S, 488 (1973). i 41, 42

Parr v. United States, 351 U.S. 513 (1956) . . 30

Pasadena City Bd. of Educ. v. Spangler,

e ͤo“A 38, 39

Press-Enter. Co. v. Superior Court,

GIO UE, 8 CBE sccccvcasccecscscczesescccesscsccncczecesescsnesnscnsenees 41, 43

Roche v. Evaporated Milk Ass'n, 319 U.S, 21 (1948)......... 30

Roe v. Wade, 410 U.S. 113 (1973). issue 41, 48

Schall v. Martin, 467 U.S. 253 (1984). tue 38

Sell v. United States, 5389 U.S. 166 (2008) . . 22

Smith v. Bayer Corn, 564 U.S. 299 (20110 vie 37

Sosna v. lowa, 419 U.S. 398 (1975)......... 15, 33, 34, 35, 37, 38

Spencer v. Kemnay, 523 U.S. 1 (1998).....ccccceeereseseeneennees 43

Stack v. Boyle, 342 U.S. 1 (1961) ....cccccccsseeeseeeeneereenenes 20, 22

Swisher v. Brady, 488 U.S. 204 (1978) iv 35, 38

Turner v. Rogers, 564 U.S. 481 (20110) v 41, 43

United States Parole Comm'n v. Geraghty,

445 U.S. 388 (1980) — — — 36, 38

United States v. Hollywood Motor Car Co,

458 U.S, 208 (198). . . . . . . . . . . 17, 18, 21, 26

United States v. Howard, 480 F.3d 1005 (2007)..... 3, 8, 9, 29

United States v. MacDonald,

1 21, 23, 25, 26

United States v. Zuber, 118 F. 3d 101 (2d Cir. 1997). 3

Cases Continued: Page

Weinstein v. Bradford, 423 U.S. 147 (1975 43

Will v. United States, 389 U.S. 90 (1967) ................ 12, 29, 30

Constitution, statutes, and rules:

U.S. Const.:

Art. III * 13, 15, 31

Amend. IV 34

Amend. V 35

Act of Sept. 24, 1789, ch. 20, § 27, 1 Stat. 87 2

All Writs Act, 28 U.S.C. 1651(a) 2, 10, 14, 27

8 U.S.C. 1325 s

18 U.S.C. e) —

18 U.S.C. 1544 x

18 U.S.C. 31450) 18

..... . ¶Q¶˙Üͤ·— 18

a 18

„ »

21 U.S.C. 960 well

28 U.S.C. 566(a) 2

28 U.S.C. 566i) 2

28 U.S.C. 1291 2, 13, 14, 16, 17, 20

Fed. R. Civ. P.:

Rule 23 15, 33, 34, 36, 37, 39

Rule le) 37

Rules 26-37 24

Rule 65 10 24

r = rn 24

Miscellaneous:

U.S. Marshals Serv., Policy Directives: Prisoner

Operations, https://www.usmarshals.gov/foia/

directives/prisoner_ operations. pd 2, 3, 5

In the Supreme Court of the United States

No. 17-312

UNITED STATES OF AMERICA, PETITIONER

RENE SANCHEZ-GOMEZ, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the en banc court of appeals (Pet. App.

la-70a) is reported at 859 F.3d 649. The opinion of the

court of appeals panel (Pet. App. 71a-82a) is reported at

798 F.3d 1204. The order of the district court (Pet. App.

83a-99a) is not published in the Federal Supplement but

is available at 2013 WL 6145601.

JURISDICTION

The judgment of the court of appeals was entered on

May 31, 2017. The petition for a writ of certiorari was

filed on August 29, 2017, and was granted on December

8, 2017. The jurisdiction of this Court rests on 28 U.S.C.

1254(1).

(1)

STATUTORY PROVISIONS INVOLVED

1. Title 28, Section 1291 of the United States Code

provides in pertinent part:

The courts of appeals (other than the United States

Court of Appeals for the Federal Circuit) shall have

jurisdiction of appeals from all final decisions of the

district courts of the United States.

2. Title 28, Section 1651(a) of the United States

Code provides:

The Supreme Court and all courts established by Act

of Congress may issue all writs necessary or appro-

priate in aid of their respective jurisdictions and

agreeable to the usages and principles of law.

STATEMENT

1. The United States Marshals Service was created

by the Judiciary Act of 1789 to ensure the safety of fed-

eral court personnel, litigants, and the public. Act of

Sept. 24, 1789, ch. 20, § 27, 1 Stat. 87. Congress has de-

clared it “the primary role and mission of the United

States Marshals Service to provide for the security” of

the federal judiciary, including “the United States Dis-

trict Courts.” 28 U.S.C. 566(a). The Marshals Service

performs its functions in “consult{ation] with the Judi-

cial Conference of the United States,” but it “retains

final authority regarding security requirements for the

judicial branch of the Federal Government.” 28 U.S.C.

566(i).

The Marshals Service has determined that the use of

physical restraints can provide a vital tool for ensuring

the safety of court personnel, the public, and detainees

themselves. See U.S. Marshals Service, Policy Direc-

tives: Prisoner Operations § 9.18.E (Prisoner Operations),

https://www.usmarshals.gov/foia/directives/prisoner_

operations.pdf. The Marshals Service has directed, for

example, that detainees should typically be restrained

during transportation to and from the courtroom. /d.

§§ 9.18.D.3, 9.18.E.a. And in particular judicial dis-

tricts, the Marshals Service has, in consultation with the

district courts, implemented policies involving the

maintenance of physical restraints on detainees in the

courtroom during at least some non-jury proceedings.

See id. § 9.18.E.b.

In United States v. Howard, 480 F.3d 1005 (2007),

the Ninth Circuit upheld a policy “implemented by the

United States Marshals Service for the Central District

of California after consultation with the magistrate

judges,” under which “pretrial detainees making their

first appearance before a magistrate judge wear leg

shackles.” Id. at 1007. The court explained that the pol-

icy concerned] only proceedings conducted without

the presence of a jury” and “address|ed] legitimate se-

curity concerns,” including that “security-related infor-

mation concerning defendants typically is incomplete”

at the time of their first courtroom appearances, and

that “understaffed security officers must provide court-

room security in a large and unsecured space.” /d. at

1013-1014. The court noted that its decision was con-

sistent with a previous decision of the Second Circuit,

which had upheld, based on deference to a Marshals

Service recommendation, the use of arm and leg re-

straints during a non-jury sentencing proceeding. /d.

at 1013; see United States v. Zuber, 118 F.3d 101, 104

(2d Cir. 1997) (reasoning that a district judge in a non-

jury proceeding may, “without further inquiry,” elect

to “defer to the professional judgment of the Marshals

Service regarding the precautions that seem appropri-

ate or necessary in the circumstances”).

2. Courtroom security concerns are particularly

acute in the five judicial districts—the Southern Dis-

trict of California, the Districts of Arizona and New

Mexico, and the Western and Southern Districts of

Texas—on the Nation’s southwest border. Those dis-

tricts alone account for nearly 40% of the Marshals Ser-

vice’s total daily prisoner population. C.A. S.E.R. 64.

They also handlel] a large volume of criminal cases

arising from reactive arrests, where the arresting agent

typically will know far less about the defendant’s back-

ground and behavior than agents effectuating arrests

following proactive investigations.” /bid.

By mid-2013, four of those five districts had adopted

a policy of “routinely using full restraints for most non-

jury proceedings.” C.A. S.E.R. 64. “‘Full restraints’

means that a defendant’s hands are closely handcuffed

together, these handcuffs are connected by chain to an-

other chain running around the defendant’s waist, and

the defendant’s feet are shackled and chained to-

gether.” Pet. App. 3a. The only southwest-border dis-

trict not yet following such a policy by that time was the

Southern District of California. C.A. S.E.R. 61.

The Southern District, however, had been “experi-

eneling!] an increase in security incidents” during the

preceding years. C. A. S. E. R. 61. The Marshals Service

in that district was (and is) responsible for the security

of a recently constructed 16-story Annex courthouse in

San Diego, a separate five-story courthouse in San Di-

ego, and a smaller courthouse in El Centro. at 59.

The Marshals Service was required to cover “as many

as 18 to 22 different district judge and magistrate judge

calendars on a single day.” /d. at 60. It also routinely

produced as many as 40 to 50 detainees to a single mag-

istrate’s courtroom at the same time. /bid. Detainees

usually stand in the jury box, which is 2 to 7 feet from

defense counsel’s table, 2 to 9 feet from the public gal-

lery, 2 to 7 feet from the interpreter, 11 to 16 feet from

the courtroom clerk, 14 to 18 feet from the magistrate

judge, and 14 to 19 feet from the unlocked courtroom

doors leading to the public hallway. /bid.

In March 2013, the United States Marshal for the

Southern District of California submitted a letter re-

questing that the district’s judges approve a “district-

wide policy of allowing the Marshals Service to produce

all in-custody defendants in full restraints for most non-

jury proceedings.” J.A. 76. The Marshal’s request was

prompted by a combination of factors: a high volume of

detainees moving through the district’s cell blocks

(more than 44,000 during Fiscal Year 2012), concerns

about understaffing, and “multiple incidents” in which

weapons had been found in holding cells. J.A. 76-77.

The Marshal also noted that two serious incidents—an

assault and a stabbing—had recently occurred in the

district’s courtrooms, explaining that another such inci-

dent “would clearly endanger those present.” J.A. 77.

The Marshal emphasized that “other comparable dis-

tricts” had already adopted a full-restraints policy,

which was also consistent with the directive of the na-

tional Marshals Service. /bid.; see Prisoner Operations

§ 9.18.E.3.b.

In October 2013, after soliciting and considering

views from a variety of sources (including the Offices of

the U.S. Attorney and the Federal Defender), the Chief

Judge informed the Marshal that the judges of the

Southern District had approved the Marshal’s request

in most respects. J.A. 78. The request was denied, how-

ever, as to detainees appearing at plea and sentencing

hearings, during which hand and arm restraints would

be removed. J.A. 78-79. In addition, any district or

magistrate judge could “direct the Marshals to produce

an in-custody defendant without restraints.” J. A. 78.

Finally, individual detainees could “ask [a] judge to di-

rect that the[ir] restraints be removed in whole or in

part,” at which point the judge would make an individu-

alized determination about the need for restraints. J.A. 79.

3. Respondents are four former federal pretrial de-

tainees who made initial appearances before magistrate

judges in the Southern District of California in October

2013. Pet. App. 34a-35a & n.2. Consistent with the se-

curity policy approved by the district’s judges, the Mar-

shals Service produced each respondent in full re-

straints. Id. at 35a. Respondents raised constitutional

objections to the security policy at their initial hearings

or arraignments but were overruled. /d. at 35a & n.2.

Three respondents filed emergency motions chal-

lenging the rulings in their cases and asking the district

court to Arlevoke“ the district-wide security policy.

Pet. App. 84a. Relying on the Ninth Circuit’s prior de-

cision in Howard, the court denied those motions (as

well as a separate challenge to the magistrate judge’s

ruling in the fourth respondent’s case). Id. at 83a-99a,

104a. In denying the motions, the court emphasized

several district-specific factors that justified the secu-

rity policy, including: the large number of in-custody

detainees; the physical layout of the district’s court-

rooms and courthouses; and a troubling record of recent

in-court assaults, including a stabbing, as well as “mul-

tiple incidents of prisoner-made weapons.” /d. at 92a-

93a. The court also noted that the district’s “need for

security [had] increased” in recent years due to a focus

“on prosecuting defendants with violent or extensive

criminal histories, and ties to gangs or drug cartels.”

Id. at 98a.

The district court further explained that “proceed-

ings involving multiple defendants,” such as cases in

which defendants “enter pleas en masse before magis-

trate judges,” pose particularly “heightened” security

risks. Pet. App. 98a, 95a. Judges in the Southern Dis-

trict hear “upwards of 20 cases or more” on a typical

calendar day, and “practical considerations make it im-

possible to know the sequence in which each case will be

called.” Id. at 94a. The process of removing the re-

straints from a defendant (each of whom is transported

in full restraints) “ordinarily requires three Marshals,”

because two “stand guard to prevent attacks on the

Marshal who is unlocking and removing the shackles,

either by kicking, or by swinging hand shackles like a

mace.” /bid. Thus, in addition to overtaxing the Mar-

shals Service's limited resources, “(rjequiring the un-

shackling of each defendant before the hearings, and re-

shackling each one afterwards for safe transport, would

result in delays of up to two hours” per day per court-

room, “eating up court time” and requiring that detain-

ees “be held in restraints longer (while waiting for their

cases to be called).” /bid.

In light of those considerations—and the expertise

of the Marshals Service, which is “familiar with the

tasks of guarding detainees, maintaining courtroom se-

curity, and transferring detainees to and from court”—

the district court determined that the security policy “is

reasonably related to legitimate government interests

and does not violate [respondents’] constitutional

rights.” Pet. App. 98a-99a. The court emphasized, how-

ever, that judges must continue to weigh “countervail-

ing interests” in appropriate cases and to direct “devia-

tions from the policy” when necessary. /d. at 98a (citing

Howard, 480 F. gd at 1013-1014).

4. In November 2013, respondents filed separate ap-

peals to the Ninth Circuit. J. A. 1, 5, 10, 15. Before the

court of appeals issued any decision on those appeals,

however, each respondent's criminal case was resolved.

Patricio-Guzman: On October 31, 2013, respondent

Patricio-Guzman pleaded guilty to misdemeanor illegal

entry, in violation of 8 U.S.C. 1325, and was sentenced

to 30 days of imprisonment. J.A. 36-37 (Dkt. No. 12).

Sanchez-Gomez: On November 21, 2013, respondent

Sanchez-Gomez pleaded guilty to felony misuse of a

passport, in violation of 18 U.S.C, 1544, J. A. 26-27 (Dkt.

No. 36). On December 20, 2013, he was sentenced to

five years of probation. J. A. 30-31 (Dkt. No. 48).

Morales: On March 11, 2014, after being released on

bond and rearrested for failure to appear, respondent

Morales pleaded guilty to a controlled-substance of-

fense, in violation of 21 U.S.C. 952 and 960. J. A. 60-61

(Dkt. No. 85). On June 19, 2014, she was sentenced to

18 months of imprisonment and three years of super-

vised release. J.A. 61-62 (Dkt. No. 95).

Ring: On October 23, 2014, the district court granted

the government’s motion, pursuant to a deferred-

prosecution agreement, to dismiss the charges against

respondent Ring for making an interstate threat to kid-

nap, kill, or injure, in violation of 18 U.S.C. STe). J. A.

63, 66, 75 (Dkt. Nos. 1, 19, 47).

5. In August 2015, a panel of the court of appeals va-

cated and remanded for further proceedings. Pet. App.

7la-82a. In asserting appellate jurisdiction, the panel

cited Howard, which had relied on the collateral-order

doctrine to entertain interlocutory appeals from the de-

nials of motions seeking the removal of restraints dur-

ing pretrial proceedings. /d. at 75a; see Howard, 480

F.3d at 1009, 1011-1012. And although the panel recog-

nized that respondents were “no longer detained,” it

viewed their claims as “not moot” under “the exception

to the mootness doctrine for cases that are ‘capable of

repetition, yet evading review.” Pet. App. 75a (quoting

Howard, 480 F.3d at 1009).

On the merits, the panel declined to hold “that a blan-

ket policy of shackling defendants in non-jury proceed-

ings is never permissible,” and it recognized that How-

ard previously had “approved of one such policy.” Pet.

App. 81a (citing 480 F.3d at 1008). But the panel con-

cluded that, on this record, the Southern District has

failed to provide adequate justification for its restrictive

shackling policy.” Id. at 73a.

6. The court of appeals granted rehearing en banc

and requested supplemental briefing on “whether we

lack appellate jurisdiction over these appeals, contrary

to our holding in United States v. Howard.” J.A. 3. Fol-

lowing argument, the court issued a 6-5 decision invali-

dating the security policy approved by the Southern

District’s judges. Pet. App. la-30a.

a. Addressing the threshold question of its own au-

thority to adjudicate the appeals, the majority observed

that respondents had requested “relief not merely for

themselves, but for all in-custody defendants in the dis-

trict.” Pet. App. 7a. The majority acknowledged that

the request did not fit within its !imited jurisdiction over

“immediately appealable collateral orders.” Id. at Ga.

But the majority reasoned that respondents had raised

“class-like claims *** asking for class-like relief,”

which could be treated as petitions for writs of manda-

mus under the All Writs Act, 28 U.S.C. 1651(a). Pet.

App. 7a. The majority stated that it was authorized to

issue “[s]upervisory and advisory writs,” through which

a court may “provide broader relief” than would be

available under a traditional writ of mandamus. /d. at

8a. And although granting the writ required a showing

of “clear error,” id. at 9a (citation omitted), the majority

deemed it suffic.ent that “some form of routine shack-

ling has become a common practice and thus is an oft-

repeated error,” id. at 10a.

The majority further held that the case was not

moot, notwithstanding the completion of respondents’

criminal cases. Pet. App. 1la-17a. The majority recog-

nized that respondents are “no longer subject to the

complained-of policy” and no longer have “personal in-

terests in the outcome of this case.” Id. at lla-12a. The

majority further acknowledged that it could not apply

the “capable-of-repetition-yet-evading-review exception”

to mootness, because the exception requires a likelihood

of repetition “as to the particular complainants, and we

cannot presume that [respondents] will be subject to

criminal proceedings in the future.” /d. at 12a. The ma-

jority concluded, however, that it was authorized to de-

cide this case by Gerstein v. Pugh, 420 U.S. 103 (1975),

which had permitted the continuation of a civil class-

action suit notwithstanding the mootness of the original

named plaintiffs’ claims. Pet. App. 13a-l6a. Although

Gerstein, unlike this case, involved a civil suit that had

formally been certified as a class action, the majority

labeled this case a “functional class action” that could

be treated in the same manner. Id. at 13a-14a. In the

majority's view, so long as a case can be deemed to have

three features present in Gerstein—a challenge to

“broader policies” rather than “individual violations,” a

“continually changing group|| of injured individuals

who would benefit from any relief,” and “common

representation”—a mandamus claim may outlast the

claimant’s personal interest in its resolution. /d. at 14a.

On the merits, the majority invalidated the district’s

security policy, although it withheld “the issuance of a

formal writ of mandamus” because the challenged secu-

rity policy “isn’t presently in effect” as a result of the

earlier panel ruling. Pet. App. 30a; see id. at 3la

(Schroeder, J., concurring). The majority based its

merits ruling on Deck v. Missouri, 544 U.S. 622 (2005),

which had concluded that due process requires an indi-

vidualized justification for visibly restraining a defend-

ant in front of a jury during the guilt and penalty phases

of a capital trial. Id. at 624, 629, 633. In the majority's

view, that rule “applies whether the proceeding is pre-

trial, trial, or sentencing, with a jury or without.” Pet.

App. 19a. The majority acknowledged that Deck had

found “that the common law drew a distinction between

trial and pretrial proceedings,” because “‘Blackstone

and other English authorities recognized that the rule

dis favoring restraints] did not apply at the time of ar-

raignment, or like proceedings before the judge.“ /d.

at 24a (quoting Deck, 544 U.S. at 626) (internal quota-

tion marks omitted). But it viewed Deck’s statement as

“dictum” that is “contradicted by the very sources on

which the Supreme Court relied.” /bid.; see id. at 24a-

28a.

b. Judge Ikuta dissented, reasoning that the major-

ity’s analysis was “wrong at every turn” and invited “po-

tentially grave consequences for state and federal court-

houses throughout [the] circuit.” Pet. App. 32a, 70a.

The dissent first explained that respondents’ appeals

should have been dismissed as moot because respond-

ents “have no ongoing interest in the purely prospective

relief they seek.” Pet. App. 37a. It rejected the major-

ity’s “functional class action” exception to mootness, id.

at 39a (citation omitted), observing that jurisdiction in

Gerstein was not based on the three features identified

by the majority, but rather on the concept that a formal

class action acquires “independent legal status”

through certification, id. at 40a (citation omitted). The

dissent explained that, whereas a formal class certifica-

tion can “relate back” to the live controversy that ex-

isted at the time a civil suit was filed, id. at 42a, this case

involved no “class that has an independent legal status,

whether under Rule 23 or otherwise,” and hence “noth-

ing a court can ‘relate back’ after a criminal defendant's

individual claim becomes moot.” Id. at 46a.

The dissent added that this case also “dojes| not

meet the requirements for granting a writ of supervi-

sory mandamus,” which the dissent viewed as being lim-

ited to instances in which “a district court has engaged

in ‘willful disobedience.’” Pet. App. 52a (quoting Will v.

United States, 389 U.S. 90, 100 (1967)). In this case, the

dissent observed, the district court had relied on How-

ard and thus had “complied with [the Ninth Circuit's]

last word on the matter.” Id. at 58a.

On the merits, the dissent would have followled!

Deck’s reading of the common law,” which “establishes

that there is no common law rule against the use of re-

straints during pretrial proceedings,” and would have

abstained from “inventing a new right out of whole

cloth.” Pet. App. 63a. “The majority’s rule,” the dissent

concluded, “fails not only as a matter of law, but also as

a matter of common sense.” Id. at 70a. It will require

the Marshals Service either to “do the impossible (pre-

dict risks based on a dearth of predictive information),”

or else to “sit idly by and suffer an identifiable, compel-

ling harm (violence in the courtroom).” /bid. The dis-

sent predicted that the majority's “one-size-fits-all se-

curity decree,” laid down “by appellate jurists far re-

moved from the day-to-day administration of criminal

justice,” would “put{ | federal district courts at risk” and

potentially create “even greater dangers” for state

courts. Id. at 69a & n. 14.

SUMMARY OF ARGUMENT

The Ninth Cireuit lacked authority to adjudicate the

merits of respondents’ challenge to the security policy

adopted by the judges of the Southern District of Cali-

fornia, Its decision striking down that policy was nei-

ther authorized by statute nor permissible under Article III.

A. The federal courts of appeals are vested, under

28 U.S.C. 1291, with jurisdiction only over appeals from

“final decisions of the district courts.” That final judg-

ment rule is construed with particular strictness in the

criminal context, where piecemeal review is especially

harmful. The district-court orders at issue here, which

rejected respondents’ objections to the use of restraints

during pretrial proceedings, were not final decisions in

their criminal cases.

Respondents err in asserting that the Ninth Circuit

was nevertheless authorized to assume jurisdiction over

their appeals under the collateral-order doctrine.

That doctrine recognizes a limited class of pre-final-

judgment orders, deemed “final” for purposes of appel-

late review, that may be appealed to vindicate an im-

portant right that would lose all value if not upheld im-

mediately. Regardless of whether respondents’ claims

are construed narrowly or broadly, they do not qualify

for immediate appeal. To the extent that respondents

challenge the procedures followed in their criminal

cases, those claims could be reviewed at the conclusion

of those proceedings, at which point any necessary

showing of prejudice could be made and relief could be

granted. And to the extent that respondents are raising

“district-wide shackling claims [that] aren’t connected

to [their] individual criminal cases,” Pet. App. 10a, their

claims are effectively challenges to their conditions of

confinement, which are more appropriately addressed

through a civil action. Finally, relaxing the collateral-

order doctrine as respondents suggest, to create a new

category of interlocutory criminal appeals, would cause

disruption and undermine the purposes of the final-

judgment rule.

The en bane majority recognized that it could not as-

sume jurisdiction over respondents’ appeals under Sec-

tion 1291. The majority believed it was nevertheless

empowered by the All Writs Act, 28 U.S.C. 1651(a), to

invalidate the security policy by means of a “‘supervi-

sory’ or ‘advisory’” writ of mandamus. Pet. App. Sa.

Respondents’ appeals, however, do not satisfy any of

the “three conditions” necessary for a writ of manda-

mus, Cheney v. United States Dist. Court, 542 U.S. 367,

380 (2004). First, respondents had “other adequate

means” of obtaining appellate review of their claims, id.

at 380 (citation omitted), either by filing appeals of fina!

judgments of conviction in the normal course in their

own cases, or by filing a civil class action seeking

district-wide relief. Second, respondents have no “clear

and indisputable” right to issuance of the writ, id. at 381

(citation omitted), given that the district court, in re-

jecting their claims, relied on pertinent rulings by the

Ninth Circuit and this Court. Third, this case does not

exhibit “exceptional circumstances amounting to a judi-

cial usurpation of power, or a clear abuse of discretion,”

id. at 380-381 (citations and internal quotation marks

omitted). At most, respondents have raised a run-of-

the-mill claim of pretrial error on a contestable issue,

which cannot justify mandamus review in a criminal

case.

B. The Ninth Circuit also lacked authority to adjudi-

cate respondents’ claims for the additional reason that

those claims became moot before the court ruled. The

criminal cases of all four respondents—and thus all pre-

trial proceedings to which the challenged security pol-

icy could have applied —had completely ended before

the Ninth Circuit decided their appeals. Respondents

therefore had no continuing personal stake, sufficient

for purposes of Article III, in the fate of the policy.

The Ninth Circuit purported to rescue respondents’

appeals from mootness by conceiving of their challenges

as “functional class actions.” Pet. App. 13a. But that

procedural invention has no grounding in this Court’s

decisions. Only a true class action can outlast a liti-

gant’s persona! stake in the case’s outcome: Once cer-

tified under Rule 23, a class action “acquire[s] a legal

status separate from the interest asserted by” the plain-

tiff, such that the class’s interest may survive even if the

plaintiff's has ended. Sosna v. lowa, 419 U.S. 393, 399

(1975). And where the plaintiff’s claims become moot

before the district court has ruled on class certification,

a subsequent certification may be deemed to “relate

back” to the filing of the complaint. See Gerstein v.

Pugh, 420 U.S. 103, 110 n.11 (1975). But the existence

of that Federal Rules-based mechanism for addressing

inherently transitory claims provides no license for

courts to create their own “functional” analogues that

lack any affirmative authorization, formal procedures,

or doctrinal safeguards. A “functional” class action in

whieh a litigant seeks relief only in his personal capacity

has no independent legal status, no interest separate

from the litigant’s, and no certification that can be “re-

lated back” to a time when an actual case or controversy

existed.

Respondents’ claims also cannot be saved from moot-

ness under the exception for cases that are capable of

repetition, yet evading review. That exception applies

only where the same complaining party reasonably ex-

pects to face the challenged governmental practice

again in the future. The Southern District’s security

policy will not be applied to respondents again unless

they face new criminal charges, and this Court has con-

sistently refused to base jurisdiction on litigants’ pre-

dictions of their own future criminal activity.

ARGUMENT

THE NINTH CIRCUIT EXCEEDED ITS AUTHORITY BY

INVALIDATING THE SECURITY POLICY IN THIS CASE

Federal courts are courts of limited jurisdiction,’

possessing ‘only that power authorized by Constitution

and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013)

(quoting Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375, 377 (1994)). The Ninth Circuit’s decision

in this case disregarded both the constitutional and

statutory constraints on its authority. Respondents’ in-

dividual appeals were moot long before the en banc

court of appeals ruled, because their individual criminal

cases had concluded. With respect to statutory author-

ity, although the majority correctly recognized that it

lacked appellate jurisdiction under 28 U.S.C. 1291, it

erred in concluding that it could cireumvent that defi-

ciency by relying on its mandamus powers to invalidate

a policy that accorded with all relevant precedent of

both the Ninth Circuit and this Court. And it further

erred in creating a novel “functional class action” device

with no legal foundation to avoid the mootness of re-

spondents’ claims following the completion of their

criminal proceedings.

A. The Ninth Circuit Lacked Statutory Authority For Its

Decision

No statute provided the Ninth Circuit with authority

to issue its decision in this case. The orders that re-

spondents challenged were not “final decisions” appeal-

able under 28 U.S.C. 1291, because they did not resolve

respondents’ criminal cases and were not collateral or-

ders that could be treated as final for purposes of ap-

peal. Nor could the Ninth Circuit permissibly rely on

its mandamus authority (which it ultimately declined to

exercise) to reconsider its previously expressed views

on the circumstances under which pretrial restraints

are permissible.

J. The district court’s orders were not “final decisions”

immediately appealable under 28 U.S.C. 1291

The general appellate-jurisdiction statute, 28 U.S.C.

1291, vests the courts of appeals with jurisdiction only

over appeals from “final decisions of the district courts.”

Ibid. It thus embodies a final judgment rule that “is

inimical to piecemeal appellate review of trial court de-

cisions which do not terminate the litigation.” United

States v. Hollywood Motor Car Co., 458 U.S. 263, 265

(1982) (per curiam). The en banc majority correctly de-

clined to rely on Section 1291 to assert jurisdiction over

the interlocutory appeals in this case. Pet. App. 6a-7a.

a. As this Court has explained, If linality as a condi-

tion of review is an historic characteristic of federal ap-

pellate procedure.” Cobbledick v. United States, 309

U.S. 323, 324 (1940); see ibid. (finality requirement “was

written into the first Judiciary Act”). The final-judgment

rule is “crucial to the efficient administration of justice”

and “serves several important interests.” Flanagan v.

United States, 465 U.S. 259, 263-264 (1984). Among

other things, it “helps preserve the respect due trial

judges by minimizing appellate-court interference with

the numerous decisions they must make in the prejudg-

ment stages of litigation,” and it “reduces the ability of

litigants to harass opponents and to clog the courts

through a succession of costly and time-consuming ap-

peals.” Jbid.

The policy against piecemeal review “is at its strong-

est” in criminal cases. Hollywood Motor Car, 458 U.S.

at 265. In that context, the final-judgment rule nor-

mally “prohibits appellate review until conviction and

imposition of sentence.” Flanagan, 465 U.S. at 263; see

18 U.S.C. 3742 (authorizing appeals from final sen-

tences in certain circumstances). Congress has ex-

pressly permitted appeals from pretrial orders in crim-

inal cases only in a few limited circumstances. See

18 U.S.C. 3145(c) (authorizing jurisdiction over appeals

from pretrial release or detention orders); 18 U.S.C.

3731 (authorizing jurisdiction over government appeals

from certain pretrial dismissal, suppression, and re-

lease orders). For other such orders, “(t]he correctness

of a trial court’s rejection even of a constitutional claim

made by the accused in the process of prosecution must

await his conviction before its reconsideration by an ap-

pellate tribunal.” Cobbledick, 309 U.S. at 325-326.

Here, each respondent raised his or her objection to

the security policy during an initial appearance or ar-

raignment before a magistrate judge. J.A. 20-21 (Dkt.

No. 3); J.A. 33-34 (Dkt. No. 3); J.A. 44-45 (Dkt. No. 5);

J. A. 65-66 (Dkt. No. 16). When those objections were

overruled, respondents filed “Emergency Motion|s]” in

the district court challenging the use of restraints dur-

ing pretrial criminal proceedings. Pet. App. 84a. Re-

spondents then appealed from the denials of those mo-

tions, but their crimiaal cases continued (and concluded

without generating any further appeals). Accordingly,

no respondent in this case appealed from a “final deter-

mination of the merits of [his or her] criminal charges ].“

Berman v. United States, 302 U.S. 211, 212 (1937).

b. Neither respondents nor the Ninth Circuit has

suggested that respondents’ appeals are from a final

judgment. See Berman, 302 U.S. at 212-213 (“In erimi-

nal cases, as well as civil, the judgment is final for the

purpose of appeal when it terminates the litigation on

the merits and leaves nothing to be done but to enforce

by execution what has been determined.”) (citation, el-

lipsis, and internal quotation marks omitted). Respond-

ents have instead contended (Br. in Opp. 21-22)—and

the Ninth Circuit panel initially held (Pet. App. 75a)—

that appeal of the district court’s rulings was permitted

under the “collateral order doctrine.”

First recognized in Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541 (1949), the collateral-order

doctrine “carve[s] out a narrow exception to the normal

application of the final judgment rule.” Midland As-

phalt Corp. v. United States, 489 U.S. 794, 798 (1989).

The doctrine identifies a “limited class” of collateral rul-

ings that may be treated as “final,” and thus appealable

under Section 1291, even though they do not end the

proceedings in the district court. Id. at 799. To come

within that “small class” of immediately appealable in-

terlocutory rulings, “the order must conclusively deter-

mine the disputed question, resolve an important issue

completely separate from the merits of the action, and

be effectively unreviewable on appeal from a final judg-

ment.” Coopers & Lybrand v. Livesay, 437 U.S. 463,

468 (1978) (citation omitted).

Because “the reasons for the final judgment rule are

especially compelling in the administration of criminal

justice,” this Court has “interpreted the requirements

of the collateral-order exception to the final judgment

rule with the utmost strictness in criminal cases.”

Flanagan, 465 U.S. at 264-265 (citation and internal

quotation marks omitted); see id. at 264 (“Promptness

in bringing a criminal case to trial has become increas-

ingly important as crime has increased, court dockets

have swelled, and detention facilities have become over-

crowded.”). In the nearly 70 years since Cohen was de-

cided, despite “numerous opportunities” to expand the

doctrine, Midland Asphalt, 489 U.S. at 799, the Court

has identified only four types of pretrial orders in crim-

inal cases that fall within the collateral-order doctrine:

an order denying a bond, Stack v. Boyle, 342 U.S. 1

(1951); an order denying a motion to dismiss on Double

Jeopardy grounds, see Abney v. United States, 431 U.S.

651 (1977); an order denying a motion to dismiss under

the Speech or Debate Clause, see Helstoski v. Meanor,

442 U.S. 500 (1979); and an order permitting the forced

administration of antipsychotic drugs to render a de-

fendant competent for trial, see Sell v. United States,

539 U.S. 166 (2003).

The circumstances in which the Court has “refused

to permit interlocutory appeals” in criminal cases, by

contrast, have been “far more numerous.” Midland As-

phalt, 489 U.S, at 799. Those include an order denying

a motion to dismiss under the Speedy Trial Clause,

United States v. MacDonald, 435 U.S. 850 (1978); an or-

der denying a motion to dismiss for prosecutorial vin-

dictiveness, see Hollywood Motor Car, supra; an order

disqualifying counsel, see Flanagan, supra; and an or-

der denying a motion to dismiss for failure to maintain

grand jury secrecy, see Midland Asphalt, supra.

o. As the en banc majority recognized, Pet. App. Ga-

7a, the collateral-order doctrine does not permit the as-

sertion of appellate jurisdiction over respondents’ ap-

peals here. An order requiring that a defendant be sub-

ject to physical restraints during pretrial proceedings

is not “effectively unreviewable on appeal from a final

judgment.” Coopers & Lybrand, 437 U.S. at 468. In the

primary decision on which respondents’ merits argu-

ment has relied, Deck v. Missouri, 544 U.S. 622 (2005),

appellate review of the defendant's objection to physical

restraints at sentencing occurred only after the defend-

ant had been sentenced. See id. at 625. Upon deter-

mining that the defendant’s due process rights had in-

deed been violated by the use of restraints, this Court

reversed the decision affirming his sentence and re-

manded for further proceedings. See id. at 635. Re-

spondents’ own similar claims here could likewise have

been considered—and, if appropriate, vindicated—on

appeal in the normal course.

The right asserted by respondents is also distinct

from the types of claims as to which this Court has per-

mitted interlocutory review in criminal cases. Respond-

ents are not invoking “an explicit statutory or constitu-

tional guarantee that trial will not occur,” Midland As.

phalt, 489 U.S. at 801, for which “appellate review must

occur before trial to be fully effective,” Flanagan,

465 U.S. at 266. See Helstoski, 442 U.S. at 507-508; Ab-

ney, 431 U.S. at 660-662. Nor do respondents claim a

right to avoid an involuntary physical invasion that

would allow for a trial that would otherwise be barred,

see Sell, 539 U.S. at 176-177, or a right relating to pro-

trial release, see Stack, 342 U.S. at 4, either of which

could similarly “become[ ] moot if review awaits convic-

tion and sentence,” Flanagan, 465 U.S. at 266. Instead,

respondents are, at bottom, simply objecting to the

procedures under which their criminal proceedings wil!

take place—an objection that is indistinguishable from

the sorts of claims that are regularly reviewed on appeal

following final judgment. Cf. Sell, 539 U.S. at 176 (ob-

serving that litigant’s ſoreed- medication claim was

“wholly separate *** from questions concerning trial

procedures”).

The Court has recognized that such objections are

not only capable of resolution, but are often more read-

ily resolved, in an appeal following final judgment in the

criminal case. They typically involve assertions of pre)-

udice in the conduct of particular proceedings, such as

respondents’ assertions here that they could have been

“hamstrung in communicating with their counsel, frus-

trating participation in their own defense,” as a result

of being maintained in restraints during pretrial hear-

ings. Br. in Opp. 33; see Resp. C.A. Br. 24 (expressing

concern that detainee may be “unnecessarily distracted

or embarrassed to assist counsel in his defense”) (em-

phasis omitted). As this Court has explained, however,

when a litigant claims that a particular procedure will

“make a trial unfair,” the litigant is asserting a right for

which “an ordinary appeal permits vindication.” Sell,

539 U.S. at 177.

An interlocutory appeal would not be appropriate

under the collateral-order doctrine, moreover, regard-

less whether respondents would have to demonstrate

actual prejudice in order to succeed on their claim. If

the “asserted right is one that is not violated absent

some specifically demonstrated prejudice to the de-

fense,” then its “validity cannot be adequately reviewed

until trial is complete,” and thus it is not “independent

of the issues to be tried.” Flanagan, 465 U.S. at 268.

Claims that such rights have been violated “necessi-

tate[ j a careful assessment of the particular facts of the

case,” and are therefore “best considered only after the

relevant facts have been developed.” MacDonald, 435

U.S. at 858; ef. Flanagan, 465 U.S. at 268-269. Con-

versely, “if establishing a violation of [the] asserted

right requires no showing of prejudice to [the] defense,

a pretrial order violating the right *** is not ‘effec-

Lively unreviewable on appeal from a final judgment’”

for purposes of the collateral-order doctrine, because

reversal after final judgment would be assured. Flana-

gan, 465 U.S. at 268. Thus, “whether or not [respond-

ents’) claim requires a showing of prejudice,” the dis-

trict court’s order upholding the use of restraints “does

not qualify as an immediately appealable collateral or-

der in a straightforward application of the necessary

conditions laid down in prior cases.” /d. at 269.

d. Notwithstanding that respondents have raised

“concerns of prejudice” in their criminal proceedings to

support their merits argument, Resp. C.A. Br. 23, they

have premised their collateral-order doctrine argument

on the asserted absence of prejudice in those proceed-

ings. In particular, respondents have suggested (Br. in

Opp. 21-22) that the security-related orders in their

cases could not effectively have been reviewed after fi-

nal judgment was entered because, since the physical

restraints were applied only in non-jury proceedings,

“there would be no prejudice to review in appealing

the] criminal conviction.” Even if that contention could

be squared with their arguments on the merits, it would

not justify appellate jurisdiction in this case.

The collateral-order doctrine does not authorize re-

view of claims that “can be adequately vindicated by

other means.” Mohawk Indus., Inc. v. Carpenter, 558

U.S. 100, 107 (2009). If respondents’ claims truly were

not relevant to the substance of their criminal cases,

they could have challenged the security policy through

a civil suit. See, e. g., County of Riverside v. McLaugh-

lin, 500 U.S. 44 (1991) (civil suit challenging timing of

probable-cause hearing); Gerstein v. Pugh, 420 U.S. 103

(1975) (civil suit challenging absence of probable-cause

hearing). Such a suit would have provided a far superior

mechanism for resolving that type of claim. The civil

process includes detailed rules and procedures for ap-

propriate fact development. See Fed. R. Civ. P. 26-37.

Comparable fact-finding procedures do not exist within

the criminal context. Cf. Fed. R. Crim. P. 16 (imposing

limited discovery obligations on prosecution and de-

fense for evidence to be used at criminal trial). And civil

courts, unlike criminal courts, are expressly authorized

to issue preliminary and permanent injunctive relief.

See Fed. R. Civ. P. 65. A civil suit would thus have en-

sured that appropriate relief was available and that ap-

pellate review of respondents’ claims was based on an

adequate record.

If, as the majority concluded below, respondents’

“district-wide shackling claims aren't connected to [re-

spondents'] individual criminal cases,” Pet. App. 10a,

then respondents are, in substance, challenging the con-

ditions of their confinement. The essence of their claim

would be that, although they may be restrained in this

manner while in other locations—such as during trans-

portation to and from the courthouse, or between the

holding cell and the courtroom—they may not be re-

strained in the courtroom itself. Conditions-of-confine-

ment claims are commonly raised in civil, not criminal,

actions. See, eg., Florence v. Board of Chosen Free-

holders, 566 U.S. 318 (2012) (civil suit challenging de-

tainee strip-search policy); Bell v. Wolfish, 441 U.S. 520

(1979) (civil suit challenging conditions of pretrial con-

finement); ef. De Abadia-Peixoto v. United States Dep't

of Homeland Sec., 277 F. R. D. 572 (N. D. Cal. 2011) (civil

challenge to use of restraints in immigration court).

e. Permitting such claims to be litigated on interloc-

utory appeal in a criminal case also “would severely un-

dermine the policies behind the final judgment rule,”

Flanagan, 465 U.S. at 270, because “nothing about the

circumstances * * * inherently limits the availability of

the claim.” MacDonald, 435 U.S. at 862. Any detainee

dissatisfied with a trial court’s decision about the man-

ner in which he is brought before the court (protective

measures, clothing, etc.) could immediately appeal that

decision. If trial proceedings were to be put on hold un-

til the appeal was resolved, the result would be to freeze

the criminal process altogether, imposing costly delays

and inviting gamesmanship. See ibid. (“Among other

things, delay may prejudice the prosecution’s ability to

prove its case, and] increase the cost to society of main-

taining those defendants subject to pretrial deten-

tion.“). If, instead, appeal of the pretrial order imposing

restraints proceeded simultaneously with the trial, the

legal proceedings would multiply, requiring the prose-

cution and defense to litigate the restraint issue on ap-

peal at the same time that the defendant’s guilt or inno-

cence was being adjudicated in district court. Either

option “would severely undermine the policies behind

the final judgment rule.” Flanagan, 465 U.S. at 270.

The effect of expanding the collateral-order doctrine

in the manner respondents suggest would not be limited

to claims challenging the use of physical restraints or the

conditions of confinement. “Nothing about” an order im-

posing pretrial restraints “distinguishes it from the run

of pretrial judicial decisions that affect the rights of

criminal defendants yet must await completion of trial

court proceedings for review.” Flanagan, 465 U.S. at

270. Although respondents assert dignitary and other

harms that are unrelated to prejudice in their criminal

cases, that does not adequately differentiate their

claims from other types of claims that are not subject to

collateral-order appeal. See, e.g., MacDonald, 435 U.S.

at 858 (noting that, although the Speedy Trial Clause

seeks primarily “to limit the possibility that the defense

will be impaired,” it also seeks “to prevent oppressive

pretrial incarceration” and “to minimize anxiety and

concern of the accused”) (citation omitted); ef. Mohawk

Indus., 558 U.S. at 108-113 (rejecting argument that

“confidentiality” interest justified collateral-order ap-

peals of denials of claims of attorney-client privilege).

If defendants could obtain immediate appellate review

simply by asserting claims of dignitary harm, separate

from claims of prejudice in the context of their criminal

proceedings, “the policy against piecemeal appeals in

criminal cases would be swallowed by ever-multiplying

exceptions.” Hollywood Motor Car, 458 U.S. at 270.

. Respondents cannot have it both ways. To the ex-

tent that their claims relate to their criminal proceed-

ings, and are appropriately raised as motions in their

criminal cases, respondents cannot sever the prejudice

aspects of their argument in order to invoke the

collateral-order doctrine. And to the extent the en banc

majority correctly assessed that the substance of re-

spondents’ request was “not review [of] the individual

[respondents’| shackling decisions,” but instead review

of their “district-wide challenges” to the security policy,

Pet. App. 6a (emphasis added), such review was availa-

ble by other means. The majority thus correctly “s|aw|

no reason” to consider the collateral-order doctrine as

providing a jurisdictional basis for its decision. /bid.

2. The Ninth Circuit did not have authority to issue a

writ of “supervisory mandamus”

The majority below recognized that it lacked appel-

late jurisdiction over respondents’ claims. See Pet.

App. 6a-7a. It determined instead that it had authority

to review those claims under the All Writs Act,

28 U.S.C. 1651(a). That was incorrect. Even if respond-

ents’ appeals could properly be “construe|d|] *** as

petitions for writs of mandamus,” Pet. App. 7a, the

Ninth Circuit was not empowered to “exercise [its] su-

pervisory’ or ‘advisory’ authority” to invalidate the

Southern District of California’s security policy, id. at 8a.

This Court has recognized three “conditions” that

limit a court’s authority to issue a writ of mandamus un-

der the All Writs Act. Cheney v. United States Dist.

Court, 542 U.S. 367, 380 (2004). First, “the party seek-

ing issuance of the writ must have no other adequate

means to attain the relief he desires.” /bid. (brackets

and citation omitted). Second, the party seeking the

writ must demonstrate “that his right to issuance of the

writ is clear and indisputable.” /d. at 381 (brackets, ci-

tation, and internal quotation marks omitted). Third,

that party must also demonstrate that issuance of the

writ is “appropriate under the circumstances,” by point-

ing to “exceptional circumstances amounting to a judi-

cial usurpation of power, or a clear abuse of discretion.”

Id. at 380-381 (citations and internal quotation marks

omitted). Those conditions are more readily satisfied in

some circumstances than in others; the Court has rec-

ognized, for example, that the “paramount necessity of

protecting the Executive Branch from vexatious litiga-

tion” deserves significant weight in the analysis. /d. at

382. Respondents here, however, can satisfy none of

them.

First, respondents had “other adequate means” to

obtain appellate review of their claims, Cheney, 542 U.S.

at 380 (citation omitted). As previously explained, to the

extent respondents objected to the use of pretrial re-

straints in their own criminal cases, they could have

sought to overturn their convictions in the normal

course following final judgment. See Deck, 544 U.S. at

635 (reversing and remanding based on defendant’s due

process challenge to use of restraints during capita!

sentencing); cf. Estelle v. Williams, 425 U.S. 501, 512-

513 (1976) (declining to reverse conviction, despite de-

fendant’s due process objection to being compelled to

wear jail garb in front of jury, because objection was not

adequately preserved). And insofar as respondents

sought to challenge the security policy as a general

matter—separate from whether the use of restraints in

their individual cases provided a basis for challenging

their convictions on appeal—that challenge would more

properly have been brought in a civil suit, as a class ac-

tion if appropriate, with appellate review available fol-

lowing issuance or denial of the requested relief. See,

e.g., Florence, supra; McLaughlin, supra; Bell, supra.

Proceedings on a writ of supervisory mandamus—

which, inter alia, are unlikely to allow for the develop-

ment of a full record—cannot take the place of an or-

derly civil action.

Second, respondents cannot show that their “right to

issuance of the writ is clear and indisputable,” Cheney,

542 U.S. at 381 (citations and internal quotation marks

omitted). In rejecting respondents’ claims, the district

court relied on the Ninth Circuit’s prior decision in

United States v. Howard, 480 F.3d 1005 (2007), which

had upheld the Central District of California’s policy of

maintaining leg restraints on criminal defendants dur-

ing their initial appearances. Howard, in turn, relied on

this Court’s statement in Deck that the common-law

rule against physically restraining criminal defendants

“did not apply at ‘the time of arraignment,’ or like pro-

ceedings before the judge.” Id. at 1012 (quoting Deck,

544 U.S. at 626); see id. at 1014 (upholding the policy at

issue because it concerned] only proceedings con-

ducted without the presence of a jury,” and “was

adopted by the magistrate judges of the court following

consultation with the Marshals Service to address legit-

imate security concerns”).

The district court’s reliance on Howard—and, by ex-

tension, Deck—is not a circumstance that warrants the

corrective remedy of mandamus. See Pet. App. 87a

(district court observing that respondents were “essen-

tially arguing the losing position in Howard”). “Manda-

mus, it must be remembered, does not run the gauntlet

of reversible errors.” See Will v. United States,

389 U.S. 90, 104 (1967) (citation and internal quotation

marks omitted). Although the district court failed to

anticipate that a bare majority of Ninth Circuit judges

sitting on the en banc panel would distinguish this case

from Howard, “the most that can be claimed on this rec-

ord is that [the district court] may have erred in ruling

on matters within [its] jurisdiction.” Id. at 103-104.

That is not enough for mandamus relief. See id. at 104.

Third, for related reasons, respondents have identi-

fied no “exceptional circumstances amounting to a judi-

cial usurpation of power, or a clear abuse of discretion,”

Cheney, 542 U.S. at 380 (citations and internal quotation

marks omitted), sufficient to warrant mandamus. Be-

cause the “general policy against piecemeal appeals

takes on added weight in criminal cases,” Will, 389 U.S.

at 96, this Court has been particularly reluctant to allow

mandamus review in such cases. See id. at 96-98; see

also Parr v. United States, 351 U.S. 513, 519-520 (1956).

Although mandamus may be appropriate in certain cir-

cumstances, such as “willful disobedience of the rules

laid down by this Court,” Will, 389 U.S. at 100, or “a

deliberate policy in open defiance of the federal rules in

matters of pretrial criminal discovery,” id. at 102, the

district court’s “good faith effort to follow [circuit] case

law” here does not present such a circumstance. Pet.

App. 53a (Ikuta, J., dissenting). Rather, because the

“district court has acted within its jurisdiction and has

rendered a decision which, even if erroneous, involved

no abuse of judicial power,” the Ninth Circuit in this

case “has done no more than substitute mandamus for

an appeal contrary to the statutes and the policy of Con-

gress, which has restricted that court’s appellate review

to final judgments of the district court.” Roche v. Evap-

orated Milk Ass'n, 319 U.S. 21, 32 (1943).

B. Respondents’ Claims Had Become Moot Before The

Ninth Circuit Adjudicated Them

Even assuming the Ninth Circuit had statutory foot-

ing for its decision, it lacked authority under the Con-

stitution to issue that decision in the context of criminal

cases that had long since concluded. Articie III's case-

or-controversy requirement “subsists through all stages

of federal judicial proceedings, trial and appellate.”

Lewis v. Continental Bank Corp., 494 U.S. 472, 477

(1990). Therefore, if the party invoking a court’s juris-

diction ceases to have a “personal stake in the outcome

of the lawsuit, at any point during litigation, the action

can no longer proceed and must be dismissed as moot.”

Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016)

(citation and internal quotation marks omitted). The

court of appeals erred in declining to adhere to that rule

here.

J. Respondents lost their personal interest in the out-

come of the litigation when their criminal cases

ended

In the district court, respondents raised objections

to the maintenance of physical restraints during non-

jury pretrial proceedings. Although respondents assur-

edly had a concrete, personal interest in the resolution

of those claims when they were raised, respondents’

personal stake ended when their criminal proceedings

were completed, thereby eliminating any possibility of

further pretrial non-jury proceedings.

Three respondents pleaded guilty and received crim-

inal sentences, with the last final judgment imposed on

June 19, 2014. See J.A. 37 (judgment entered Novem-

ber 6, 2013, against respondent Patricio-Guzman) (Dkt.

No. 15); J.A. 30-31 (judgment entered December 20,

2013, against respondent Sanchez-Gomez) (Dkt. No.

48); J.A. 61-62 (judgment entered June 19, 2014, against

respondent Morales) (Dkt. No. 95). The remaining re-

spondent (Ring) entered into a deferred-prosecution

agreement with the government, J.A. 66 (Dkt. No. 19),

and an order dismissing the charges against him was

entered on October 23, 2014, J.A. 75 (Dkt. No. 47). No

respondent appealed from the final judgment entered

by the district court in his or her case.

Respondents’ criminal cases were therefore over by

the time the Ninth Circuit issued its decisions on Au-

gust 25, 2015 (panel), and May 31, 2017 (en banc). See

Pet. App. 2a, 72a. As the en bane majority accordingly

recognized, respondents’ personal interests in the out-

come of the] case haſ dj expired,” because they were “no

longer subject to the policy.” Id. at 12a. Their appeals

(even if properly treated as mandamus petitions) ac-

cordingly should have been dismissed as moot, as “fed-

eral courts are without power to decide questions that

cannot affect the rights of litigants in the case before

them,” DeF'unis v. Odegaard, 416 U.S. 312, 316 (1974)

(per curiam) (citation omitted).

2. Respondents’ claims cannot be saved from mootness

by construing their challenges as “functional class

actions”

The en bane majority concluded that it could avoid

the necessity of dismissal because its resolution of re-

spondents’ outdated challenges would affect other crim-

inal defendants in the Southern District of California.

Invoking Gerstein v. Pugh, 420 U.S. 103 (1975), the ma-

jority asserted that respondents’ challenges could be

treated as “functional class actions” amenable to adju-

dication long after respondents themselves had ceased

to have a stake in the outcome. Pet. App. 13a. But the

rule applied in Gerstein is limited to actual class ac-

tions, which—unlike the “functional class action” cre-

ated by the Ninth Circuit—involve a formally certified

class with an independent legal status and a continuing

interest in the case that persists even after the named

plaintiff’s own interest expires.

a. In Sosna v. lowa, 419 U.S. 393 (1975), this Court

considered a constitutional challenge to an lowa law that

imposed a residency requirement for initiating a divorce

proceeding. Id. at 395-396. The plaintiff filed her chal-

lenge as a class action and successfully obtained class cer-

tification under Federal Rule of Civil Procedure 23, but

she lost on the merits. 419 U.S. at 397-398. “By the time

her case reached this Court,” she “had long since satisfied

the lowa durational residency requirement,” id. at 398,

and she had also obtained a divorce in another state, id. at

398 n.7. The Court thus observed that if the plaintiff “had

sued only on her own behalf,” her lack of continued per-

sonal stake in the outcome “would make this case moot

and require dismissal.” Id. at 399.

Crucially, however, the plaintiff had “brought thle] suit

as a class action,” a “factor [that] significantly affects the

mootness determination.” Sosna, 419 U.S. at 399.

“When the District Court certified the propriety of the

class action,” the Court explained, “the class of un-

named persons described in the certification acquired a

legal status separate from the interest asserted by [the

plaintiff .“ bid. (footnote omitted). As a result, even

though the controversy had become moot as to the

named plaintiff, it “remain{ed|] very much alive for the

class of persons she hald] been certified to represent.”

Id. at 401. Thus, after satisfying itself that the require-

ments of Rule 23 had been met and that the class was

properly certified, id. at 403, the Court went on to re-

solve the plaintiff’s claim on the merits, id. at 404-410.

In Sosna, the plaintiff’s claim became moot only af-

ter she had obtained class certification. 419 U.S. at 398.

But the Court also addressed in a footnote the possibil-

ity that “the controversy involving the named plaintiffs

might be] such that it becomes moot as to them before

the district court can reasonably be expected to rule on

a certification motion.” /d. at 402 n.11 (emphasis added).

“In such instances,” the Court continued, “whether the

certification can be said to ‘relate back’ to the filing of

the complaint may depend upon the circumstances of

the particular case and especially the reality of the

claim that otherwise the issue would evade review.”

Ibid.

In Gerstein, the Court addressed the relation-back

issue left open in Sosna. The plaintiffs there had filed a

class action challenging, on Fourth Amendment

grounds, state procedures that permitted certain crim-

inal defendants to be jailed before trial without a prob-

able cause determination. 420 U.S. at 106-107. Before

addressing the merits of the plaintiffs’ claims, the Court

noted its discovery at oral argument that “the named

| plaintiffs] haſ d] been convicted,” thus ending their pre-

trial detention. Id. at 110 n. 11. The Court determined,

however, that the plaintiffs’ challenge belonged “to that

narrow class of cases in which the termination of a class

representative’s claim does not moot the claims of the

unnamed members of the class.” /bid. Although “the

record di id] not indicate whether any of [the plaintiffs]

were still in custody awaiting trial when the District

Court certified the class,” the case was “suitable” for

application of relation-back principles, because the in-

herently short duration of pretrial custody rendered it

“by no means certain that any given individual, named

as a plaintiff, would be in pretrial custody long enough

for a district judge to certify the class.” /bid. (citing

Sosna, 419 U.S. at 402 n.11). The Court also noted “the

constant existence of a class of persons suffering the

deprivation,” as well as the plaintiffs’ attorney, a public

defender, who “has other clients with a continuing live

interest in the case.” /bid.

Following Gerstein, the Court has continued to apply

relation-back principles in cases involving claims “so in-

herently transitory that the trial court will not have

even enough time to rule on a motion for class certifica-

tion before the proposed representative's individual in-

terest expires.” McLaughlin, 500 U.S. at 52 (citing Ger-

stein, 420 U.S. at 110 n. 1). For instance, McLaughlin

involved a class action challenging the county’s failure

to provide arrestees with a prompt probable-cause

hearing. /d. at 48. Although “the class was not certified

until after the named plaintiffs’ claims had become

moot,” the “‘relation back’ doctrine [was] properly in-

voked to preserve the merits of the case for judicial res-

olution.” Jd. at 52 (citing Sosna, 419 U.S. at 402 n.11);

see Swisher v. Brady, 438 U.S. 204, 213 n.11 (1978) (ap-

plying relation-back doctrine to Fifth Amendment chal-

lenge to juvenile court proceedings); see also Genesis

Healthcare Corp. v. Symezyk, 569 U.S. 66, 75-77 (2013)

(describing application of relation-back doctrine to “in-

herently transitory” claims).

b. The Ninth Circuit recognized that this case was

not brought as a class action (or even as a civil suit). See

Pet. App. 14a. The court nevertheless determined that

it could treat the case as a If lunetional class action| |”

based on the presence of “the same three features” dis-

cussed in Gerstein: (1) a challenge to “broader policies,”

rather than “individual violations”; (2) an “inherently

transitory” claim, which produces a “continually chang-

ing group[] of injured individuals who would benefit

from any relief”; and (3) “common representation.”

Ibid. The Ninth Circuit considered those features, in

combination with its view that “this is a supervisory

mandamus case,” as sufficient to overcome the moot-

ness of respondents’ own claims. Id. at 15a. And it

viewed any focus on the absence of a “formal!” class ac-

tion as “misplaced.” /bid.

The Ninth Circuit erred in viewing Gerstein as sup-

port for its novel and legally unsupported notion of a

“functional class action.” As the foregoing discussion

makes clear, Gerstein rests on an application of

relation-back principles, under which the grant of a

class-certification motion under Rule 23 may be deemed

to relate back to the filing of the complaint. See L/nited

States Parole Comm'n v. Geraghty, 445 U.S. 388, 407

n.11 (1980) (“The ‘relation back’ principle [is] a tradi-

tional equitable doctrine [that was] applied to class cer-

tification claims in Gerstein.”). Application of those prin-

ciples, first identified as a possibility in Sosna (upon

which Gerstein relied), expressly depends on “the fact

that a putative class acquires an independent legal sta-

tus once it is certified under Rule 23.” Genesis

Healthcare, 569 U.S. at 75. Those principles do not apply

where, as here, the plaintiffs have sought relief solely in

their individual capacities.

A focus on class status is therefore not “misplaced,”

Pet. App. 15a, but is instead critical, in the mootness

analysis. “The class-action device was designed as an

exception to the usual rule that litigation is conducted

by and on behalf of the individual named parties only.”

General Tel. Co. v. Falcon, 457 U.S. 147, 155 (1982) (ci-

tation and internal quotation marks omitted). But “it is

only a ‘properly certified’ class that may succeed to the

adversary position of a named representative whose

claim becomes moot.” Kremens v. Bartley, 431 U.°.

119, 132-133 (1977) (citation omitted). Certification rep-

resents a judicial determination that injured parties

other than the named plaintiff exist. Sosna, 419 U.S. at

399. And it provides a definition by which injured par-

ties can be identified, which “is especially important in

cases” in which “the litigation is likely to become moot

as to the initially named [challengers] prior to the ex-

haustion of appellate review.” Board of Sch. Comm'rs

v. Jacobs, 420 U.S. 128, 130 (1975) (per curiam). Certi-

fication also ensures that class members will be bound

by the outcome, Smith v. Bayer Corp., 564 U.S. 299, 315

(2011), and that the action will not be settled or dis-

missed without appropriate notice, see Fed. R. Civ. P.

23(e). The Ninth Circuit's “functional class action” de-

vice, in contrast, serves no such functions and provides

no such assurances.

Contrary to the Ninth Circuit’s suggestion (Pet.

App. 14a), Gerstein’s observation about the “inherently

transitory” nature of the claims at issue there does not

provide a license for courts to avoid mootness concerns

by supplementing Federal Rule of Civil Procedure 23

with informal class-action analogues of their own crea-

tion. The Court in Gerstein recognized that “avoid|ing)

mootness under Sosna” would “ordinarily *** re-

quireſ]“ a “showing” of a live controversy as to at least

one named plaintiff at the time of class certification. 420

U.S. at 110 n.11. But it deemed the situation in Gerstein

to present “a suitable exception to that requirement,”

ih d., citing Sosna’s suggestion that the relation-back

doctrine is most appropriately applied where “other-

wise the issue would evade review” because the named

plaintiffs’ claims are so transitory in nature that the

controversy is likely to become] moot as to them before

the district court can reasonably be expected to rule on

a certification motion.” Sosna, 419 U.S. at 402 n.11; see

Gerstein, 420 U.S. at 110 n.11 (citing Sosna, 419 U.S. at

402 n.11). In identifying the transient nature of the

plaintiffs’ claims as a reason for applying relation-back

principles to class certification, the Court never sug-

gested that transience alone was a permissible substitute

for class certification.

A properly certified class—with its own independent

legal status—was present not only in Gerstein itself, but

in every decision in which this Court has relied on the

“inherently transitory” nature of a claim as a reason to

adjudicate the merits notwithstanding mootness as to

the plaintiff. McLaughlin, 500 U.S. at 52 (quoting

Geraghty, 445 U.S. at 399); see Schall v. Martin, 467

U.S. 253, 256 n.3 (1984); Swisher, 438 U.S. at 213 n.11.

Conversely, in cases in which class certification was de-

nied, or was granted but later invalidated, the lack of a

properly certified class has required dismissal when the

named party’s personal stake in the matter e red.

See Pasadena City Bd. of Educ. v. Spangler, 427 U.S.

424, 430 (1976); Jacobs, 420 U.S. at 129 (finding case

moot due to “inadequate compliance with the require-

ments of Rule 23(c)”); see also Geraghty, 445 U.S. at 404

(observing that a case “must be dismissed as moot”

upon appellate determination “that class certification

properly was denied”).

ce. The Ninth Cireuit's notion of a “functional class

action” is particularly difficult to square with Pasadena

City Board of Education v. Spangler, supra. In that

case, a public school board that had been involved in lit-

igation with students and the United States over its

segregation-related policies sought appellate review of

the district court’s denial of leave to modify its desegre-

gation plan. 427 U.S. at 427-429. Before addressing the

merits, the Court noted the concern that the case had

become moot when “all the original student plaintiffs

*** graduated from the Pasadena school system.” Id.

at 430. Because the district court had “never certified”

the case as a class action under Rule 23, the Court ex-

plained, the case “would clearly be moot” without the

involvement of the United States. /bid. The Court re-

jected the contention that, because the litigation had

been “filed as a class action” and the parties had

“treated” it as a class action, Rule 23 certification was

an unnecessary “‘verbal recital.’” Jbid. The Court ex-

plained that, “while counsel may wish to represent a

class of unnamed individuals still attending the Pasa-

dena public schools who do have some substantial inter-

est in the outcome of this litigation, there has been no

certification of any such class which is or was repre-

sented by a named party to this litigation.” /bid.

The same considerations that led the Court in Span-

gler to say that the case “would clearly be moot” without

the United States are present here. 427 U.S. at 430.

Here, as there, the individual challengers’ interests in

the outcome of the litigation have expired, and “there

has been no certification” of a class with its own inde-

pendent interest. /bid. Respondents assert that their

“functional class action” has certain useful features: a

challenge not only to “individual violations, but also

broader policies or practices”; a “continually changing

group| | of injured individuals”; and “common represen-

tation.” Br. in Opp. 19-20 (citation omitted). Yet the

same was true in Spangler, where mootness was

avoided only by the presence of another challenger (the

United States) with a continuing interest of its own. Be-

cause no such challenger exists here, respondents’

claims should have been dismissed as moot.

3. The exception to mootness for cases “capable of repe-

tition, yet evading review” does not apply to reapond-

ents’ claims

At the certiorari stage, respondents argued that

their cases fall under the exception to mootness for “dis-

putes that are capable of repetition while evading re-

view.” Br. in Opp. 17 (citation and internal quotation

marks omitted). The court of appeals correctly rejected

that argument, Pet. App. 12a, which cannot be squared

with this Court’s precedents.

This Court has explained that “in the absence of a

class action, the ‘capable of repetition, yet evading re-

view’ doctrine [i]s limited to the situation where two el

ements [are] combined: (1) the challenged action [i]s in

its duration too short to be fully litigated prior to its ces-

sation or expiration, and (2) there [ils a reasonable ex-

pectation that the same complaining party would be

subjected to the same action again.” Murphy v. Hunt,

455 U.S. 478, 482 (1982) (per curiam) (citation omitted).

Respondents cannot meet the second requirement, be-

cause they cannot demonstrate a “reasonable expecta-

tion” that they will themselves be subject to a future

prosecution in the Southern District in which the secu-

rity policy will again be applied to them. See City of Los

Angeles v. Lyons, 461 U.S. 95, 102-103 (1983).

Respondents contend (Br. in Opp. 18) that a future

recurrence of the dispute is reasonably likely because

two of them, Sanchez-Gomez and Patricio-Guzman, have

already “(rjeturn{ed] to the Southern District of Cali-

fornia on new criminal charges,” where they “were

again subjected to unwarranted shackling.” Respond-

ents also note (ibid.) that the new charges (illegal

reentry in both cases) are “not unusual for individuals

who reenter the United States after removal.” Re-

spondents assert, therefore, that yet another prosecu-

tion in the Southern District is equally “as likely” as the

recurrence of other disputes that this Court has

adjudicated under the capable-of-repetition-yet-evading-

review exception. Id. at 19 (citing Kingdomware Techs.,

Inc. v. United States, 136 S. Ct. 1969 (2016); Turner v.

Rogers, 564 U.S. 431 (2011); Press-Enter. Co. v. Supe-

rior Court, 478 U.S. 1 (1986); Roe v. Wade, 410 U.S. 113

(1973)).

This Court’s decisions make clear, however, that a

party’s avowed commitment to criminal recidivism is

not a sufficient basis for maintaining his challenge on a

matter of criminal procedure. In O’Shea v. Littleton,

414 U.S. 488 (1973), the Court declined to adjudicate on

the merits the constitutional claims of plaintiffs who

sought injunctive relief barring the discriminatory exe-

cution of certain criminal procedures (such as the set-

ting of pretrial bonds). /d. at 491-492. The Court noted

that the plaintiffs’ “prospect of future injury rests on

the likelihood that [they] will again be arrested for and

charged with violations of the criminal law and will

again be subjected to” the challenged practices. /d. at

496. Observing that the plaintiffs did not dispute that

“the statutes that might possibly be enforced against”

them (ce, the substantive criminal laws) were valid, the

Court rejected their argument: “that if [the plaintiffs]

proceed to violate an unchallenged law and if they are

charged, held to answer, and tried in any proceedings,

* they will be subjected to the discriminatory prac-

tices.” Id. at 496-497. Even accepting that the plaintiffs

were “deeply” committed to eradicating those practices,

the Court was unwilling to rest jurisdiction on the no-

tion “that [the plaintiffs] will be prosecuted for violating

valid criminal laws.” /d. at 497. Rather, the Court felt

bound to “assume that [the plaintiffs] will conduct their

activities within the law and so avoid prosecution and

conviction.” bid.

The Court’s decisions following O’Shea “reveal that,

for purposes of assessing the likelihood that state au-

thorities will reinflict a given injury, [the Court] gener-

ally hals] been unwilling to assume that the party seek-

ing relief will repeat the type of misconduct that would

once again place him or her at risk of that injury.” Ho-

nig v. Doe, 484 U.S. 305, 320 (1988) (citing O’Shea).

Thus, in Lane v. Williams, 455 U.S. 624 (1982), the

Court dismissed as moot a suit brought by prisoners

who objected to the trial court’s failure to inform them,

at the time of their guilty pleas, of a mandatory parole

term (which they later violated). The case was moot,

the Court explained, because the objected-to parole

term had “expired of its own accord” during the litiga-

tion. Id. at 631. The Court rejected a dissenter’s argu-

ment that the prisoners could maintain their suit be-

cause they might again commit a crime, at which point

their parole violation would be held against them in a

future parole proceeding. See id. at 632 n. 13. The pa-

role violations,” the Court explained, “cannot affect a

subsequent parole determination unless [the prisoners

again violate state law, are returned to prison, and be-

come eligible for parole. [The prisoners] themselves are

able—and indeed required by law—to prevent such a

possibility from occurring.” /bid.

Similarly, in Spencer v. Kemna, 523 U.S. 1 (1998), the

Court refused to consider the claims of a prisoner who

objected to an order revoking his parole, because the

prisoner had been released from prison before his chal-

lenge was adjudicated. Even though the prisoner was

later rearrested on separate charges, id. at 14, the

Court declined to accept his argument that “the Order

of Revocation could be used to increase his sentence in

a future sentencing proceeding” as a basis for continu-

ing his suit. Id. at 15. That argument, the Court ex-

plained, was “contingent upon [his] violating the law,

getting caught, and being convicted.” /bid.; see Wein-

stein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam)

(declining, “in the absence of a class action,” to apply

mootness exception where plaintiff was no longer sub-

ject to challenged parole procedures).

None of the cases cited by respondents, all of which

arise outside che eriminal context, undermines the prin-

ciple that a litigant may not establish a “reasonable ex-

pectation” that a dispute will recur, for purposes of the

capable-of-repetition-yet-evading-review exception, by

arguing that he is likely in the future to violate a lawful

criminal statute. See Kingdomware Techs., 136 S8. Ct.

at 1975-1976 (company likely to bid for future procure-

ment contracts); Turner, 564 U.S. at 440 (litigant with

substantial child-support debts and no ability to pay

likely to face civil contempt); Press-Enter., 478 U.S. at

6 (media company likely to report on future court

cases); Roe, 410 U.S. at 125 (female litigant likely to

have future pregnancy). The Ninth Circuit was there-

fore correct in declining to “presume that [respondents |

will be subject to criminal proceedings in the future,”

whether in the Southern District of California or else-

where. Pet. App. 12a.

CONCLUSION

The decision below should be vacated.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

JOHN P. CRONAN

Acting Assistant Attorney

General

EDWIN S. KNEEDLER

Deputy Solicitor

General

ERIC J. FEIGIN

ALLON KEDEM

Assistants to the Solicitor

General

DAVID B. GOODHAND

JANUARY 2018

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