# Petitioners Brief — United States v. Sanchez-Gomez, 138 S. Ct. 1532 (2018) (No. 17-312) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0778%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 2018 ## Text No, 17-312 —eꝓeꝓäẽʃ, ' ͤ-:Ü'ꝶ.' —᷑ ᷑ ä ̃— ˙ü— _________ In the Supreme Court of the United States UNITED STATES OF AMERICA, PETITIONER vz 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) IV 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 VI 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 v. 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) 2 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_ 3 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”). 4 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 5 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 6 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 7 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- 8 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 9 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,” 10 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 11 “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. 12 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 13 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 14 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 15 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 16 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 17 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. 18 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. 19 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 20 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 21 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 22 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. 23 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 24 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, 25 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 26 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. 27 . 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 28 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- 29 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 30 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). 31 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. 32 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 33 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 34 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 35 “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,” 36 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.” 37 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 38 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 39 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 40 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 41 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, 42 * 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. 43 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. 11 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0778%3A08. Public record. Not legal advice.