ARGUMENT ANALYSIS

Deploying the All Writs Act in habeas corpus proceedings — and transporting John the Tiger Man

“John the Tiger Man,” a hypothetical dangerous prisoner invented by Justice Stephen Breyer, featured prominently in Tuesday’s oral argument in Shoop v. Twyford. If a federal district court orders a state to transport John the Tiger Man, then can the state immediately appeal that order? What if John the Tiger Man’s attorneys cover the transportation costs so the state bears no expense? What if there are no security issues, and the state cannot cite a public-safety risk? The justices spent much of the oral argument considering such hypotheticals, suggesting that the decision could ultimately turn on whether the Supreme Court has jurisdiction to hear Ohio prison warden Tim Shoop’s appeal. This is despite the fact that the court took the case to answer questions about whether and when federal courts may employ the All Writs Act in habeas corpus proceedings.

This case arose because a federal district court issued an order under the All Writs Act directing the warden to transport state prisoner Raymond Twyford to a secure medical facility for neuroimaging. Twyford seeks to investigate evidence of brain damage that could potentially support his habeas corpus proceedings, i.e., his challenge to his state-court conviction and death sentence. The U.S. Court of Appeals for the 6th Circuit affirmed the district court’s order, and the Supreme Court granted review to consider two questions. First, it granted review to address whether the All Writs Act authorizes a federal court to compel a state official to transport a prisoner so that he might investigate evidence for later use in his habeas proceedings. Second, the court agreed to consider whether, before granting that order to help a prisoner develop evidence, a federal court must first find that the anticipated evidence could entitle the prisoner to habeas relief.

It is therefore notable that much of the oral argument focused on a different question: whether the warden had the right to appeal the federal district court’s transport order while Twyford’s habeas proceedings were ongoing. In fact, the justices questioned Nicole Reaves, an assistant to the U.S. solicitor general, extensively on jurisdiction even though the United States had not previously taken a position. (She was arguing as an amicus in support of neither party, and she said that the court has jurisdiction here.) Generally, the court considers barriers to reaching the merits of a case, like jurisdictional concerns, before it commits to reviewing the case. As a result, such issues are not often a focus of oral argument. That focus here signals real worry, at least for some justices, that the court might not have the authority to address the All Writs Act questions at issue.

As a quick recap, mid-proceeding orders — orders that do not end district court proceedings — are usually not appealable. Some such orders, however, are immediately appealable under the collateral-order doctrine. But courts do not decide on a case-by-case basis whether an order fits within the doctrine. Instead, courts determine whether the order fits into a general category of orders that is immediately appealable.

The court wrestled at length with the impact of deeming the district court’s transport order immediately appealable. Breyer tried to pin down the precise category of mid-proceeding orders that would likewise become appealable. As the warden’s counsel cited public-safety concerns and state sovereignty to justify appealability, Breyer invoked John the Tiger Man to tease out whether non-transport orders posing safety risks would be appealable. Justices Sonia Sotomayor and Clarence Thomas asked Reaves how she could distinguish the transport order here from similar orders that are not immediately appealable. Sotomayor cited non-appealable civil orders for prisoner medical exams, which may require transport. And Thomas, who has previously opined that the court should not expand the collateral-order doctrine, wondered about non-appealable discovery orders to produce information. Meanwhile, Justice Samuel Alito seemed comfortable with the prospect of a wide swath of transport orders becoming appealable: “What’s the big deal about that?”

Despite the protracted questioning on jurisdiction, the only justices whose positions seemed clear were Sotomayor (jurisdiction does not exist) and Alito (yes, it does).

As for the All Writs Acts, perhaps the most surprising feature of the argument was that the justices asked relatively few probing questions. On whether the act authorizes transport orders in habeas proceedings, the justices mainly lobbed questions that allowed counsel to rehash their briefs. Except for one or two questions, the justices did not delve into the central matter of whether 28 U.S.C. § 2241(c)(5), one of the provisions governing habeas proceedings, prohibits any prisoner transport order under the All Writs Act. The justices also declined to inquire about the potential implications of any ruling on the All Writs Act in settings beyond habeas proceedings.

The justices did not even broach the second question the case presents — under what circumstances can a district court issue an order to help a prisoner uncover evidence? — until David O’Neil, who represented Twyford and was the third attorney to argue, began. Even then, few justices participated. Thomas and Alito, who generally favor constraining the availability of habeas relief, pushed O’Neil on why a prisoner should be able to investigate without first demonstrating that the resulting evidence would be usable and useful. Thomas posited that without such a showing, investigations could easily become “fishing expedition[s].” Alito implied that it would not be “so onerous” for a prisoner to have to explain, before getting new evidence, how the evidence could be considered by a court.

Overall, the oral argument shed remarkably little light on the justices’ views of the case. Should the court reach the All Writs Act, it is unclear whether the court will split along the same 6-3 lines as in other recent habeas cases, or whether it will issue a far-reaching decision with effects beyond habeas proceedings. Should the court conclude that it does not have jurisdiction, it will remand the case to the 6th Circuit; that court may consider the warden’s request for a different form of relief from the transport order. Then, depending on how the 6th Circuit rules, the same All Writs Act questions could end up back before the Supreme Court sooner rather than later.