holding that a change of policy by the Southern District of California did not moot an issue when the Southern District intended to reinstate its policy once it was not bound by the court of appealsSummary of this case from Speech First, Inc. v. Schlissel
Allon Kedem, Washington, D.C., for Petitioner. Reuben C. Cahn, San Diego, CA, for Respondents. 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, Attorney, Department of Justice, Washington, D.C., for Petitioner. Ellis Murray Johnston, III, Reuben Camper Cahn, Shereen J. Charlick, Vincent J. Brunkow, Michele A. McKenzie, Kimberly S. Trimble, Kara L. Hartzler, Federal Defenders of San Diego, Inc., San Diego, CA, for Respondents.
Allon Kedem, Washington, D.C., for Petitioner.
Reuben C. Cahn, San Diego, CA, for Respondents.
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, Attorney, Department of Justice, Washington, D.C., for Petitioner.
Ellis Murray Johnston, III, Reuben Camper Cahn, Shereen J. Charlick, Vincent J. Brunkow, Michele A. McKenzie, Kimberly S. Trimble, Kara L. Hartzler, Federal Defenders of San Diego, Inc., San Diego, CA, for Respondents.
Chief Justice ROBERTS delivered the opinion of the Court.
Four criminal defendants objected to being bound by full restraints during pretrial proceedings in their cases, but the District Court denied relief. On appeal, the Court of Appeals for the Ninth Circuit held that the use of such restraints was unconstitutional, even though each of the four criminal cases had ended prior to its decision. The question presented is whether the appeals were saved from mootness either because the defendants sought "class-like relief" in a "functional class action," or because the challenged practice was "capable of repetition, yet evading review."
It is the responsibility of the United States Marshals Service to "provide for the security ... of the United States District Courts." 28 U.S.C. § 566(a). To fulfill that duty, the United States Marshal for the Southern District of California requested that the judges of that district permit the use of full restraints on all in-custody defendants during nonjury proceedings. When "full restraints" are applied, "a defendant's hands are closely handcuffed together, these handcuffs are connected by chain to another chain running around the defendant's waist, and the defendant's feet are shackled and chained together." 859 F.3d 649, 653 (C.A.9 2017) (en banc). In support of his proposal, the Marshal cited safety concerns arising from understaffing, past incidents of violence, and the high volume of in-custody defendants produced in the Southern District. The judges agreed to the Marshal's request, with modifications providing that a district or magistrate judge may require a defendant to be produced without restraints, and that a defendant can request that this be done. See App. 78–79.
Respondents Jasmin Morales, Rene Sanchez–Gomez, Moises Patricio–Guzman, and Mark Ring were among the defendants produced by the Marshals Service for pretrial proceedings in full restraints. They raised constitutional objections to the use of such restraints in their respective cases, and to the restraint policy as a whole. They noted that the policy had resulted in the imposition of full restraints on, for example, a woman with a fractured wrist, a man with a severe leg injury, a blind man, and a wheelchair-bound woman. The District Court denied their challenges.
Respondents appealed to the Court of Appeals for the Ninth Circuit, but before the court could issue a decision, their underlying criminal cases came to an end. Morales, Sanchez–Gomez, and Patricio–Guzman each pled guilty to the offense for which they were charged: Morales, to felony importation of a controlled substance, in violation of 21 U.S.C. §§ 952 and 960 ; Sanchez–Gomez, to felony misuse of a passport, in violation of 18 U.S.C. § 1544 ; and Patricio–Guzman, to misdemeanor illegal entry into the United States, in violation of 8 U.S.C. § 1325. The charges against Ring—for making an interstate threat in violation of 18 U.S.C. § 875(c) —were dismissed pursuant to a deferred-prosecution agreement.
A panel of the Court of Appeals nonetheless concluded that respondents' claims were not moot, and went on to strike down the restraint policy as violating the Due Process Clause of the Fifth Amendment. 798 F.3d 1204 (C.A.9 2015). Those rulings were reaffirmed on rehearing en banc. 859 F.3d 649. The en banc court understood the "main dispute" before it to be a challenge to the policy itself, not just to the application of that policy to respondents. Id., at 655. The court then construed respondents' notices of appeal as petitions for mandamus, which invoked the court's supervisory authority over the Southern District. Id., at 657. The case was, in the court's view, a "functional class action" involving "class-like claims" seeking "class-like relief." Id., at 655, 657–658. In light of that understanding, the Court of Appeals held that this Court's civil class action precedents kept the case alive, even though respondents were no longer subject to the restraint policy. Id., at 657–659 (citing Gerstein v. Pugh, 420 U.S. 103, 110–111, n. 11, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) ). On the merits, the Court of Appeals concluded that the restraint policy violated the Constitution. 859 F.3d, at 666.
Judge Ikuta, writing in dissent for herself and four colleagues, rejected the majority's application of class action precedents to the individual criminal cases before the court and would have held the case moot. Id., at 675. She also disagreed with the majority on the merits, concluding that the restraint policy did not violate the Constitution. Id., at 683.
We granted certiorari. 583 U.S. ––––, –––– S.Ct. ––––, ––– L.Ed.2d –––– (2017).
To invoke federal jurisdiction, a plaintiff must show a "personal stake" in the outcome of the action. Genesis HealthCare Corp. v. Symczyk, 569 U.S. 66, 71, 133 S.Ct. 1523, 185 L.Ed.2d 636 (2013). "This requirement ensures that the Federal Judiciary confines itself to its constitutionally limited role of adjudicating actual and concrete disputes, the resolutions of which have direct consequences on the parties involved." Ibid. Such a dispute "must be extant at all stages of review, not merely at the time the complaint is filed." Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975). A case that becomes moot at any point during the proceedings is "no longer a ‘Case’ or ‘Controversy’ for purposes of Article III," and is outside the jurisdiction of the federal courts. Already, LLC v. Nike, Inc., 568 U.S. 85, 91, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013).
Shortly after the panel decision in this case, the Southern District altered its policy to eliminate the routine use of full restraints in pretrial proceedings. The Government represents, however, that the Southern District intends to reinstate its policy once it is no longer bound by the decision of the Court of Appeals. Tr. of Oral Arg. 29. We agree with the Court of Appeals that the rescission of the policy does not render this case moot. A party "cannot automatically moot a case simply by ending its unlawful conduct once sued," else it "could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where [it] left off, repeating this cycle until [it] achieves all [its] unlawful ends." Already, LLC v. Nike, Inc., 568 U.S. 85, 91, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013).
Gerstein, a class action brought under Federal Rule of Civil Procedure 23, involved a certified class of detainees raising claims concerning their pretrial detention. 420 U.S., at 106–107, 95 S.Ct. 854. By the time this Court heard the case, the named representatives' claims were moot, and the record suggested that their interest might have lapsed even before the District Court certified the class. See id., at 110–111, n. 11, 95 S.Ct. 854. Normally a class action would be moot if no named class representative with an unexpired claim remained at the time of class certification. See ibid. (citing Sosna v. Iowa, 419 U.S. 393, 402, n. 11, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) ). The Court nevertheless held that the case remained live. As we explained, pretrial custody was inherently temporary and of uncertain length, such that we could not determine "that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify the class." Gerstein, 420 U.S., at 110–111, n. 11, 95 S.Ct. 854. At the same time, it was certain that there would always be some group of detainees subject to the challenged practice. Ibid. Given these circumstances, the Court determined that the class action could proceed. Ibid. ; see Swisher v. Brady, 438 U.S. 204, 213–214, n. 11, 98 S.Ct. 2699, 57 L.Ed.2d 705 (1978) (employing same analysis in a class action challenging juvenile court procedures).
The Court of Appeals interpreted Gerstein to cover all "cases sufficiently similar to class actions" in which, "because of the inherently transitory nature of the claims," the claimant's "interests would expire before litigation could be completed." 859 F.3d, at 658. Gerstein was an action brought under Federal Rule of Civil Procedure 23, but the Court of Appeals decided that such "a procedural mechanism to aggregate the claims" was not a "necessary prerequisite" for application of the Gerstein rule. 859 F.3d, at 659 (alteration omitted). Respondents, the court noted, sought "relief [from the restraint policy] not merely for themselves, but for all in-custody defendants in the district." Id., at 655. Those "class-like claims" seeking "class-like relief" were sufficient to trigger the application of Gerstein and save the case from mootness, despite the termination of respondents' criminal cases. 859 F.3d, at 655.
We reject the notion that Gerstein supports a freestanding exception to mootness outside the class action context. The class action is a creature of the Federal Rules of Civil Procedure. See generally 7A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1751 et seq. (3d ed. 2005). It is an "exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only," and "provides a procedure by which the court may exercise ... jurisdiction over the various individual claims in a single proceeding." Califano v. Yamasaki, 442 U.S. 682, 700–701, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979). "The certification of a suit as a class action has important consequences for the unnamed members of the class." Sosna, 419 U.S., at 399, n. 8, 95 S.Ct. 553. Those class members may be "bound by the judgment" and are considered parties to the litigation in many important respects. Devlin v. Scardelletti, 536 U.S. 1, 7, 9–10, 122 S.Ct. 2005, 153 L.Ed.2d 27 (2002). A certified class thus "acquires a legal status separate from the interest asserted by the named plaintiff." Genesis HealthCare, 569 U.S., at 74, 133 S.Ct. 1523 (quoting Sosna, 419 U.S., at 399, 95 S.Ct. 553 ; alterations omitted).
Gerstein belongs to a line of cases that we have described as turning on the particular traits of civil class actions. The first case in this line, Sosna v. Iowa, held that when the claim of the named plaintiff becomes moot after class certification, a "live controversy may continue to exist" based on the ongoing interests of the remaining unnamed class members. Genesis HealthCare, 569 U.S., at 74, 133 S.Ct. 1523 (citing Sosna, 419 U.S., at 399–402, 95 S.Ct. 553 ); see Franks v. Bowman Transp. Co., 424 U.S. 747, 755–756, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976). The "fact that a putative class acquires an independent legal status once it is certified" was, we later explained, "essential to our decision[ ] in Sosna ." Genesis HealthCare, 569 U.S., at 75, 133 S.Ct. 1523 ; see Kremens v. Bartley, 431 U.S. 119, 131–133, 97 S.Ct. 1709, 52 L.Ed.2d 184 (1977) (explaining that, under Sosna 's rule, "only a ‘properly certified’ class ... may succeed to the adversary position of a named representative whose claim becomes moot"); Alvarez v. Smith, 558 U.S. 87, 92–93, 130 S.Ct. 576, 175 L.Ed.2d 447 (2009) (same).
Gerstein, announced one month after Sosna, provides a limited exception to Sosna 's requirement that a named plaintiff with a live claim exist at the time of class certification. The exception applies when the pace of litigation and the inherently transitory nature of the claims at issue conspire to make that requirement difficult to fulfill. See Sosna, 419 U.S., at 402, n. 11, 95 S.Ct. 553 (anticipating the Gerstein rule as an exception); Gerstein, 420 U.S., at 110–111, n. 11, 95 S.Ct. 854 (describing its holding as "a suitable exception" to Sosna ). We have repeatedly tied Gerstein ' s rule to the class action setting from which it emerged. See, e.g., Genesis HealthCare, 569 U.S., at 71, n. 2, 133 S.Ct. 1523 (describing Gerstein 's rule as "developed in the context of class actions under Rule 23 to address the circumstance in which a named plaintiff's claim becomes moot prior to certification of the class"); United States Parole Comm'n v. Geraghty, 445 U.S. 388, 397–399, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) (highlighting Gerstein as an example of the Court "consider[ing] the application of the ‘personal stake’ requirement in the class-action context").
In concluding that Gerstein reaches further, the Court of Appeals looked to our recent decision in Genesis HealthCare Corp. v. Symczyk. But in that case the Court refused to extend Gerstein beyond the class action context, even with respect to a procedural device bearing many features similar to a class action. Genesis HealthCare addressed whether a "collective action" brought under the Fair Labor Standards Act (FLSA) by a plaintiff on behalf of herself "and other ‘similarly situated’ employees" remained "justiciable when the lone plaintiff's individual claim bec[ame] moot." 569 U.S., at 69, 133 S.Ct. 1523. In an effort to continue her case on behalf of others, the plaintiff turned to Sosna and its progeny, including Gerstein . But those cases, we explained, were "inapposite," not least because " Rule 23 actions are fundamentally different from collective actions under the FLSA." Genesis HealthCare, 569 U.S., at 74, 133 S.Ct. 1523. Such collective actions, we stressed, do not "produce a class with an independent legal status, or join additional parties to the action." Id., at 75, 133 S.Ct. 1523.
This case, which does not involve any formal mechanism for aggregating claims, is even further removed from Rule 23 and Gerstein . The Federal Rules of Criminal Procedure establish for criminal cases no vehicle comparable to the FLSA collective action, much less the class action. And we have never permitted criminal defendants to band together to seek prospective relief in their individual criminal cases on behalf of a class. As we said when declining to apply nonparty preclusion outside the formal class action context, courts may not "recognize ... a common-law kind of class action" or "create de facto class actions at will." Taylor v. Sturgell, 553 U.S. 880, 901, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008) (alterations omitted); see Smith v. Bayer Corp., 564 U.S. 299, 315–316, 131 S.Ct. 2368, 180 L.Ed.2d 341 (2011) (same); Pasadena City Bd. of Ed. v.
Spangler, 427 U.S. 424, 430, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976) (rejecting in mootness context the idea that "the failure to obtain the class certification required under Rule 23 is merely the absence of a meaningless ‘verbal recital’ ").
The court below designated respondents' case a "functional class action" because respondents were pursuing relief "not merely for themselves, but for all in-custody defendants in the district." 859 F.3d, at 655, 657–658. But as explained in Genesis HealthCare, the "mere presence of ... allegations" that might, if resolved in respondents' favor, benefit other similarly situated individuals cannot "save [respondents'] suit from mootness once the[ir] individual claim[s]" have dissipated. 569 U.S., at 73, 133 S.Ct. 1523.
Our conclusion is unaffected by the decision of the court below to recast respondents' appeals as petitions for "supervisory mandamus." See 859 F.3d, at 659 (viewing such a petition, like the civil class action, as a procedural vehicle to which the Gerstein rule applies). Supervisory mandamus refers to the authority of the Courts of Appeals to exercise "supervisory control of the District Courts" through their "discretionary power to issue writs of mandamus." La Buy v. Howes Leather Co., 352 U.S. 249, 259–260, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957). There is no sign in our scant supervisory mandamus precedents that such cases are exempt from the normal mootness rules. See generally Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967) ; Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964) ; La Buy, 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290. Indeed, as the court below acknowledged, "[s]upervisory mandamus cases require live controversies." 859 F.3d, at 657.
Respondents do not defend the reasoning of the Court of Appeals. See Brief for Respondents 58 (arguing that this Court need not reach the functional class action issue and should "discard[ ]" that label); Tr. of Oral Arg. 43 (respondents' counsel agreeing that they "have not made any effort to defend" the functional class action approach). In respondents' view, functional class actions and Gerstein 's rule are beside the point because two respondents—Sanchez-Gomez and Patricio–Guzman—retain a personal stake in the outcome of their appeals.
Sanchez–Gomez and Patricio–Guzman are no longer in pretrial custody. Their criminal cases, arising from their illegal entry into the United States, ended in guilty pleas well before the Court of Appeals issued its decision. Respondents contend, however, that the claims brought by Sanchez–Gomez and Patricio–Guzman fall within the "exception to the mootness doctrine for a controversy that is capable of repetition, yet evading review." Kingdomware Technologies, Inc. v. United States, 579 U.S. ––––, ––––, 136 S.Ct. 1969, 1976, 195 L.Ed.2d 334 (2016) (internal quotation marks omitted). A dispute qualifies for that exception only "if (1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again." Turner v. Rogers, 564 U.S. 431, 439–440, 131 S.Ct. 2507, 180 L.Ed.2d 452 (2011) (alterations and internal quotation marks omitted). The parties do not contest that the claims at issue satisfy the first prong of that test, but they sharply disagree as to the second.
Respondents argue that Sanchez–Gomez and Patricio–Guzman meet the second prong because they will again violate the law, be apprehended, and be returned to pretrial custody. But we have consistently refused to "conclude that the case-or-controversy requirement is satisfied by" the possibility that a party "will be prosecuted for violating valid criminal laws." O'Shea v. Littleton, 414 U.S. 488, 497, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). We have instead "assume[d] that [litigants] will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct." Ibid. ; see, e.g., Spencer v. Kemna, 523 U.S. 1, 15, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (reasoning that a claim regarding a parole revocation order was moot following release from custody because any continuing consequences of the order were "contingent upon [the claimant] violating the law, getting caught, and being convicted"); Honig v. Doe, 484 U.S. 305, 320, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) ("[W]e generally have been unwilling to assume that the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of that injury."); Lane v. Williams, 455 U.S. 624, 632–633, n. 13, 102 S.Ct. 1322, 71 L.Ed.2d 508 (1982) (concluding that case was moot where the challenged parole revocation could not "affect a subsequent parole determination unless respondents again violate state law, are returned to prison, and become eligible for parole").
Respondents argue that this usual refusal to assume future criminal conduct is unwarranted here given the particular circumstances of Sanchez–Gomez's and Patricio–Guzman's offenses. They cite two civil cases—Honig v. Doe and Turner v. Rogers —in which this Court concluded that the expectation that a litigant would repeat the misconduct that gave rise to his claims rendered those claims capable of repetition. Neither case, however, supports a departure from the settled rule.
Honig involved a disabled student's challenge to his suspension from school for disruptive behavior. We found that given his "inability to conform his conduct to socially acceptable norms" or "govern his aggressive, impulsive behavior," it was "reasonable to expect that [the student would] again engage in the type of misconduct that precipitated this suit" and "be subjected to the same unilateral school action for which he initially sought relief." 484 U.S., at 320–321, 108 S.Ct. 592. In Turner, we determined that an indigent person repeatedly held in civil contempt for failing to make child support payments, who was at the time over $13,000 in arrears, and whose next hearing was only five months away, was destined to find himself in civil contempt proceedings again. The challenged denial of appointed counsel at his contempt hearing was thus capable of repetition. See 564 U.S., at 440, 131 S.Ct. 2507.
Respondents contend that Sanchez–Gomez and Patricio–Guzman, like the challengers in Honig and Turner, are likely to find themselves right back where they started if we dismiss their case as moot. Respondents cite a Sentencing Commission report finding that in 2013 thirty-eight percent of those convicted and sentenced for an illegal entry or illegal reentry offense "were deported and subsequently illegally reentered at least one time." United States Sentencing Commission, Illegal Reentry Offenses 15 (2015) (cited by Brief for Respondents 51). Respondents emphasize the economic and familial pressures that often compel individuals such as Sanchez–Gomez and Patricio–Guzman to repeatedly attempt to enter the United States. And respondents note that both men, after their release, actually did cross the border into the United States, were apprehended again, and were charged with new illegal entry offenses. All this, respondents say, adds up to a sufficient showing that Sanchez–Gomez and Patricio–Guzman satisfy the "capable of repetition" requirement. Because the Court of Appeals was not aware that Sanchez–Gomez and Patricio–Guzman had subsequently reentered the United States illegally, respondents invite us to remand this case for further proceedings.
We decline to do so because Honig and Turner are inapposite. Our decisions in those civil cases rested on the litigants' inability, for reasons beyond their control, to prevent themselves from transgressing and avoid recurrence of the challenged conduct. In Honig, such incapacity was the very reason the school sought to expel the student. And in Turner, the indigent individual's large outstanding debt made him effectively incapable of satisfying his imminent support obligations. Sanchez–Gomez and Patricio–Guzman, in contrast, are "able—and indeed required by law"—to refrain from further criminal conduct. Lane, 455 U.S., at 633, n. 13, 102 S.Ct. 1322. Their personal incentives to return to the United States, plus the elevated rate of recidivism associated with illegal entry offenses, do not amount to an inability to obey the law. We have consistently refused to find the case or controversy requirement satisfied where, as here, the litigants simply "anticipate violating lawful criminal statutes." O'Shea, 414 U.S., at 496, 94 S.Ct. 669.
None of this is to say that those who wish to challenge the use of full physical restraints in the Southern District lack any avenue for relief. In the course of this litigation the parties have touched upon several possible options. See, e.g., Tr. of Oral Arg. 12 (indicating circumstances under which detainees could bring a civil suit). Because we hold this case moot, we take no position on the question.
* * *
We vacate the judgment of the Court of Appeals for the Ninth Circuit and remand the case to that court with instructions to dismiss as moot.
It is so ordered.