Reply Brief — Idaho Department of Correction, et al., Petitioners v. Adree Edmo, aka Mason Edmo

No. 19-1280

In the Supreme Court of the United States

__________________

THE IDAHO DEPARTMENT OF CORRECTION; HENRY

ATENCIO, in his official capacity as Director of the

IDOC; JEFF ZMUDA, in his official capacity as Deputy

Director of the IDOC; AL RAMIREZ, in his official

capacity as Warden of the Idaho State Correctional

Institution; and SCOTT ELIASON, M.D.,

Petitioners,

v.

ADREE EDMO, aka Mason Edmo,

Respondent.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

__________________

REPLY IN SUPPORT OF

SUGGESTION OF MOOTNESS

__________________

DYLAN A. EATON

J. KEVIN WEST

BRYCE JENSEN

PARSONS BEHLE & LATIMER

800 West Main Street

Suite 1300

Boise, Idaho 83702

Counsel for Petitioner

Scott Eliason, M.D.

September 11, 2020

LAWRENCE G. WASDEN

Attorney General State of Idaho

BRIAN KANE

Assistant Chief Deputy

MEGAN A. LARRONDO

Deputy Attorney General

BRADY J. HALL

Special Deputy Attorney General

Counsel of Record

MOORE ELIA KRAFT & HALL, LLP

P.O. Box 6756

Boise, Idaho 83707

(208) 336-6900

brady@melawfirm.net

Counsel for Petitioners

the Idaho Department of Correction

and Henry Atencio, Jeff Zmuda,

and Al Ramirez, in their official

capacities

i

TABLE OF CONTENTS

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

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1. The appeal is not saved from mootness, as Edmo

erroneously suggests, merely because Edmo is to

receive postsurgical treatment. . . . . . . . . . . . . . . 2

2. Vacating the lower courts’ orders and injunction

against Petitioners is the most appropriate and

equitable solution under the unique

circumstances of this case . . . . . . . . . . . . . . . . . . 7

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

ii

TABLE OF AUTHORITIES

CASES

Blue Water Navy Vietnam Veterans Ass’n, Inc. v.

Wilkie, 139 S. Ct. 2740 (2019) . . . . . . . . . . . . . . . 8

Calderon v. Moore,

518 U.S. 149 (1996). . . . . . . . . . . . . . . . . . . . . . 5, 6

Camreta v. Greene,

563 U.S. 692 (2011). . . . . . . . . . . . . . . . . . . . . . 6, 9

Chafin v. Chafin,

568 U.S. 165 (2013). . . . . . . . . . . . . . . . . . . . . . . . 6

Deakins v. Monaghan,

484 U.S. 193 (1989). . . . . . . . . . . . . . . . . . . . . . . . 6

Edmo v. Corizon,

935 F.3d 757 (9th Cir. 2019). . . . . . . . . . . . . . . . 11

Eisai Co. v. Teva Pharm. USA, Inc.,

564 U.S. 1001 (2011). . . . . . . . . . . . . . . . . . . . . . . 8

Faulkner v. Jones,

516 U.S. 910 (1995). . . . . . . . . . . . . . . . . . . . . . . . 7

Great W. Sugar Co. v. Nelson,

442 U.S. 92 (1979). . . . . . . . . . . . . . . . . . . . . . . . . 8

Hollingsworth v. U.S. Dist. Court for N. Dist.

of California, 562 U.S. 801 (2010) . . . . . . . . . . . . 8

Knox v. Service Employees Intern. Union,

Local 1000, 567 U.S. 298 (2012). . . . . . . . . . . . . . 5

Lehman v. MacFarlane,

529 U.S. 1106 (2000). . . . . . . . . . . . . . . . . . . . . . . 8

iii

Nelson v. Quick Bear Quiver,

546 U.S. 1085 (2006). . . . . . . . . . . . . . . . . . . . . . . 7

Radian Guaranty, Inc. v. Whitfield,

553 U.S. 1091 (2008). . . . . . . . . . . . . . . . . . . . . 8, 9

Teel v. Khurana,

525 U.S. 979 (1998). . . . . . . . . . . . . . . . . . . . . . . . 8

U.S. Bancorp Mortg. Co. v. Bonner Mall

Partnership, 513 U.S. 18 (1994) . . . . . . . . . . . . 7, 8

U.S. v. Chrysler Corporation,

158 F.3d 1350 (D.C. Cir. 1998) . . . . . . . . . . . . . 5, 6

U.S. v. Munsingwear,

340 U.S. 36 (1950). . . . . . . . . . . . . . . . . . 1, 7, 8, 11

Univ. of Texas v. Camenisch,

451 U.S. 390 (1981). . . . . . . . . . . . . . . . . . . . . 1, 10

Village of Lincolnshire v. Int’l Union of Operating

Eng’rs Local 399, 139 S.Ct. 2692 (2019) . . . . . . . 8

Vitek v. Jones,

445 U.S. 480 (1980). . . . . . . . . . . . . . . . . . . . . . . . 7

1

INTRODUCTION

Notwithstanding the novel arguments raised in

Respondent Adree Edmo’s Response to Petitioners’

Suggestion of Mootness (“Resp.”), the appeal is moot

because Edmo has been afforded all of the relief she

requested and which the district court ordered in its

injunction. See, e.g., Univ. of Texas v. Camenisch, 451

U.S. 390, 398 (1981). Edmo’s attempt to manufacture

a live controversy over postsurgical treatment fails and

is telling of her broader motivation to secure legal

precedent now unreviewable due to mootness. The

parties never litigated the necessity of postsurgical

treatment and the district court did not order any such

treatment. Regardless, Petitioners do not dispute

Edmo’s need for postsurgical treatment – now that she

has received the surgery – and have been providing

such treatment without court order.

Contrary to Edmo’s representations, this Court’s

“established practice” is to vacate the underlying

judgment and orders against Petitioners, especially

when mootness occurred due to no fault of Petitioners.

U.S. v. Munsingwear, 340 U.S. 36, 39 (1950). Vacatur

is not only necessary, but is the most equitable solution

to prevent the significant legal issues and procedural

ambiguities in the record from “spawning any legal

consequences” that prejudice the parties on remand or

arise from the broad-reaching circuit court decision

that directly conflicts with this Court’s precedent and

circuit law. Munsingwear, 340 U.S. at 41.

2

ARGUMENT

1. The appeal is not saved from mootness, as

Edmo erroneously suggests, merely because

Edmo is to receive postsurgical treatment.

Edmo incorrectly suggests that a live case or

controversy exists regarding whether she is to receive

postsurgical access to a dilator and other unidentified

postsurgical treatment. Resp., 1, 8-11. There are three

primary reasons why this Court should reject Edmo’s

argument:

First, the now moot controversy in this appeal has

always been whether Edmo was to receive sex

reassignment surgery consistent with the district

court’s injunction, not whether Edmo would receive

postsurgical treatment in the event the surgery was

ultimately provided. Edmo’s attempt to cobble together

the very few references in the record to postsurgical

treatment reveals the truth: no controversy ever

existed over the postsurgical treatment to be provided

in the event Edmo received the surgery. Petitioners’

concern was never with the necessity of postsurgical

treatment, but whether Edmo could be compliant with

the rigorous postsurgical regimen. Resp., 4 (citing to

examples in the record).

Thus, the only factual finding the district court

made regarding postsurgical care was that “Ms. Edmo

has demonstrated the capacity to follow through with

the postsurgical care she would require” despite having

found it “troubling that Ms. Edmo has declined to fully

participate in the mental health treatment and

counseling sessions recommended by [Petitioner] Dr.

3

Eliason and [other mental health professionals].”

Appendix to Petition (“App.”), 182. Absent any dispute,

whatsoever, regarding postsurgical care, the district

court did not order Petitioners to provide treatment

other than what was “reasonably necessary to provide

Ms. Edmo gender confirmation surgery.” App. 201.

Edmo’s overly-broad reading of the injunction was

rejected by the Ninth Circuit, which interpreted the

relief the district court ordered narrowly and not

requiring Petitioners to provide any treatment after

the surgery was accomplished:

The order, read in context, requires defendants

to provide GCS, as well as “adequate medical

care” that is “reasonably necessary” to

accomplish that end – not every conceivable form

of adequate medical care.

App. 137 (emphasis added). Edmo’s argument that the

district court and Ninth Circuit intended to order

Petitioners to also provide her with postsurgical care

into perpetuity is neither supported by the record, nor

relevant absent a live controversy.

Second, there is simply no dispute among the

parties that postsurgical treatment, including Edmo’s

access to a dilator, is medically necessary now that

Edmo has received the surgery. Nor is there a live

question whether Petitioners are to provide Edmo with

medically-necessary postsurgical treatment. Indeed,

Petitioners have already made a number of special

arrangements to provide Edmo appropriate

postsurgical treatment since she received the surgery

on July 10, 2020. Edmo has been held in special

housing so she can be monitored by medical staff and

4

receive access to necessary supplies. Prison officials

have transported Edmo to every postoperative

appointment scheduled by her surgeon to date and will

transport Edmo to the final postoperative visit in

October. Edmo’s conclusory allegation that “Petitioners

failed to provide her with access to dilation for several

days” since her surgery is incorrect.1 Resp., 7.

Regardless, the unverified accusation is not cause to

question Petitioners’ commitment to meet Edmo’s

postsurgical medical needs absent judicial

intervention.2

1

Edmo has been provided access to the dilator three times per day in

the medical unit at the women’s prison in which she is currently

housed. For the short period of time she was housed in general

population at the women’s prison, Edmo missed three days of dilation

in early August despite medical staff directing her to come to medical

to dilate. Subsequently, staff at the facility transferred her from a cell

in general population to a cell in the medical unit where the dilator is

securely stored, further ensuring Edmo’s ability to dilate.

2

Petitioners strongly dispute Edmo’s mischaracterization of a “history

of Petitioners’ refusals to provide care in this case” requiring judicial

intervention. Resp. 7. Edmo has not, and cannot, point to any instance

in the record where Petitioners have refused or failed to carry out an

order of the district court. Petitioners’ success in obtaining a stay of

the injunction pending appeal cannot be construed as a “refusal” to

provide care; nor can Petitioners’ diligent efforts to appeal or seek

clarification of the district court’s orders. Additionally, Edmo’s

assertion that the district court held a series of status conferences to

“enforce Petitioners’ compliance with injunction” is not accurate. Resp.

5-6. The status conferences were held largely to advise the district

court of the status of the appeal and address complications with

scheduling pre-surgical treatment and contacting a surgeon. The

district court repeatedly encouraged the parties to meet and confer on

pre-surgical matters outside the presence of the court, contradicting

Edmo’s claims of the district court’s need to force Petitioners’

compliance.

5

Third, Edmo’s assertion that the appeal is not moot,

even though she has now received the irreversible

surgery, is belied by the case law Edmo cites as support

in her brief. Resp. 9-11. Unlike in Knox v. Service

Employees Intern. Union, Local 1000, Petitioners here

took no voluntary action designed to moot their appeal.

567 U.S. 298, 307 (2012) (“Such postcertiorari

maneuvers designed to insulate a decision from review

by this Court must be viewed with a critical eye.”) To

the contrary, Petitioners made every attempt to

prevent their appeal from becoming moot. Suggestion

of Mootness (“S.M.”), 1-3.3 Further, a remaining dispute

in Knox over the adequacy of the refund notice saved

that appeal from mootness. Id. at 307-08. Here, there

is no dispute over the adequacy of the surgery Edmo

received.

In U.S. v. Chrysler Corporation, the appellate court

held the appeal was not moot because there was still

“substantial relief that can be afforded by this court.”

158 F.3d 1350, 1353-54 (D.C. Cir. 1998) (“If Chrysler

prevails on the merits, it will avoid [] obligations

imposed by the District Court, as well as any monetary

penalties that might be sought for the alleged

violations of the Act.”) Similarly, in Calderon v. Moore,

3

Edmo’s inference that Petitioners were untimely in raising

mootness is without merit, unnecessary, and an attempt to distract

from Edmo’s decision not to address the obvious mootness issue in

her August 10, 2020 Brief in Response. Petitioners’ application for

stay, filed contemporaneously with the Petition on May 6, 2020,

advised this Court the appeal will be mooted if Edmo receives the

surgery. In opposing the stay, Edmo did not dispute that the

appeal would be mooted if she received the surgery. When Edmo

did not address mootness in her August 10 brief, Petitioners filed

the Suggestion of Mootness fourteen days later.

6

the appeal was not moot because a decision on the

merits in the State’s favor “would release it from the

burden of the new trial itself.” 518 U.S. 149, 150 (1996).

In contrast to both Chrysler and Calderon, there is no

longer any actual relief this Court can provide any

party after a ruling on the merits. The surgery is

permanent and irreversible, and Edmo has no other

claims for equitable relief before this Court. See, e.g.,

Deakins v. Monaghan, 484 U.S. 193, 199 (1989)

(holding appeal was moot when the plaintiff no longer

had any remaining claims for equitable relief).

Edmo’s citation to Chafin v. Chafin also does not

support her argument and “confuses mootness with the

merits.” 568 U.S. 165, 174 (2013). In Chafin, an appeal

regarding the district court’s authority to order the rereturn of a child to the United States was not moot

because of a “live dispute between the parties over

where their child will be raised….” Id. at 180. Here, no

unsettled dispute exists because Edmo’s surgery is

irreversible.

Edmo’s reliance on Camreta v. Greene, 563 U.S. 692

(2011) is equally misplaced and actually supports

Petitioners’ request for vacatur. There, the appeal

challenging the Ninth Circuit Court of Appeal’s

decision limiting a social worker’s ability to interview

a minor child was moot when the child moved out of

the appellate court’s jurisdiction, had no plans to

return, and was only months away from her 18th

birthday. The Court held that the minor child “faces

not the slightest possibility of being seized in a school

in the Ninth Circuit’s jurisdiction as part of a child

abuse investigation.” Id. at 711. Similarly, because

7

Edmo has received the irreversible procedure the

district court ordered, there is no possibility the same

allegedly wrongful behavior of denying her the

vaginoplasty can recur.4

2. Vacating the lower courts’ orders and

injunction against Petitioners is the most

appropriate and equitable solution under the

unique circumstances of this case.

Edmo misapplies and misinterprets the cases she

cites in support of her position that vacatur is not

warranted. Edmo relies on U.S. Bancorp Mortg. Co. v.

Bonner Mall Partnership to suggest that vacatur is an

“extraordinary remedy” and uncommon. Resp. 12. But,

the issue in Bonner Mall was whether “courts should

vacate where mootness results from a settlement [by

the parties on appeal].” 513 U.S. 18, 23 (1994). If so,

“the losing party has voluntarily forfeited his legal

remedy by the ordinary process of appeal or certiorari,

thereby surrendering his claims to the equitable

remedy of vacatur.” Id. at 25.5

Importantly, Bonner Mall did not disavow the

seminal precedent in Munsingwear that vacatur is the

4

For the same reasons, Edmo’s citation to Vitek v. Jones, 445 U.S.

480 (1980) is unpersuasive. While there remained a possibility that

the inmate in Vitek could again be transferred to a mental hospital

in violation of his constitutional rights, Edmo cannot again be

denied a vaginoplasty.

5

Edmo points to two other opinions for the proposition that this

Court “dismiss[ed] appeal[s] from injunction decree as moot but

declining to vacate.” Resp. at 12 (citing Nelson v. Quick Bear

Quiver, 546 U.S. 1085 (2006); Faulkner v. Jones, 516 U.S. 910

(1995)). However, vacatur was never analyzed, let alone addressed.

8

“established practice of this Court in dealing with a

civil case from a court in the federal system which has

become moot while on its way here or pending our

decision on the merits….” 340 U.S. 36, 39-40.6 In fact,

Bonner Mall reaffirmed that “mootness by

happenstance provides sufficient reasons to vacate.”

513 U.S. 18, n. 3. It was undisputed in Bonner Mall

that “vacatur must be decreed for those judgments

whose review is … ‘prevented through happenstance’ –

that is to say where a controversy presented for review

has ‘become moot due to circumstances unattributable

to any of the parties.” Id. at 23 (internal citations

omitted). This appeal, of course, became moot not

because of a voluntary settlement or any action of

Petitioners. Petitioners timely and repeatedly

requested the injunction be stayed to prevent the

appeal from becoming moot. S.M. 1-3.

Bonner Mall does stand as a reminder that vacatur

is an equitable doctrine that must be in a manner that

is “most consonant with justice” and take account of the

public interest. 513 U.S. at 24, 26. However, Edmo is

6

While Petitioners assert the merits of this appeal are cert-worthy,

this Court routinely grants certiorari for the limited purpose of

vacating the lower court’s judgment without ever finding that

certiorari would have been granted had the case not become moot.

See, e.g., Blue Water Navy Vietnam Veterans Ass’n, Inc. v. Wilkie,

139 S. Ct. 2740 (2019); Village of Lincolnshire v. Int’l Union of

Operating Eng’rs Local 399, 139 S.Ct. 2692 (2019); Eisai Co. v.

Teva Pharm. USA, Inc., 564 U.S. 1001 (2011); Hollingsworth v.

U.S. Dist. Court for N. Dist. of California, 562 U.S. 801 (2010);

Radian Guar., Inc. v. Whitfield, 553 U.S. 1091 (2008); Lehman v.

MacFarlane, 529 U.S. 1106 (2000); Teel v. Khurana, 525 U.S. 979

(1998); Great W. Sugar Co. v. Nelson, 442 U.S. 92, 93-94 (1979)

(per curiam).

9

wrong to suggest that vacatur is not equitable, just,

and appropriate under the circumstances of this case.

The important substantive issues, as well as the

awkward procedural posture of this case, counsel that

vacatur is not only appropriate, but necessary to

ensure a just and equitable end to the underlying

decisions that Petitioners are now unable to challenge

due to no conduct of their own.

One of the main objectives of vacatur is to preclude

a court of appeals’ decision on constitutional questions

from governing future cases where a party was

precluded from obtaining review of these issues at no

fault of their own. See e.g., Camreta, 563 U.S. 692, 713

(2011) (holding the point of vacatur is to prevent

unreviewable constitutional decisions ‘from spawning

any legal consequence” so that no party is harmed by

what this Court called a “preliminary” adjudication)

(internal citations omitted); Radian Guaranty, Inc. v.

Whitfield, 553 U.S. 1091 (2008) (vacating judgment and

remanding to district court to dismiss where party

seeking vacatur argued, in part, the court of appeal’s

decision was irreconcilable with this Court’s

precedent). The posture of Edmo’s case is such that the

district court wrongly issued an injunction that was

then affirmed by a published and precedential court of

appeal’s opinion rendering broad legal holdings that

conflict with Eighth Amendment constitutional

standards of other circuit courts and this Court.

Therefore, it is just and in the public interest to vacate

the lower court’s decisions and judgment as to

Petitioners.

10

Finally, the unprecedented and confusing

procedural posture of this case confirms that vacatur is

equitable and just. Edmo suggests that Petitioner Dr.

Scott Eliason does not deserve a jury trial on the

Eighth Amendment claim and contends Petitioners can

later appeal the liability decision after the damages

case. Resp. at 13-14. Edmo misconstrues the record and

her own prior representations of the procedure below.

Edmo filed a Motion for Preliminary Injunction that

was heard during an extremely truncated evidentiary

hearing after only limited discovery. Edmo v. Idaho

Dep’t. of Corr., No. 1:17-cv-151 (D. Idaho) (“Dist. Ct.”),

Dkt. 62. Edmo never moved to consolidate the

preliminary injunction hearing with a final trial on the

merits, but the district court held – after the hearing –

that the hearing was “effectively converted” into a full

and final trial on the merits. App. 185-86, n. 1.

Petitioners charged that the district court did not

provide clear and unambiguous notice of its intention

to convert the hearing into a full trial on the merits as

required by Camenisch, 451 U.S. 390, 395 (1981). Edmo

v. Idaho Dep.’t of Corr. v. Edmo, No. 19-35017 (9th Cir.),

Dkt. 11, pp. 72-75.

In her own opening brief before the Ninth Circuit,

Edmo too argued that the “District Court did not

convert the preliminary injunction hearing to a

final trial on the merits.” 9th Cir. Dkt. 32, pp. 28, 6061, 64 and n. 11 (emphasis added). It was also unclear

to the Ninth Circuit whether the hearing was a final

trial on the merits because, during the appeal, it issued

a limited remand asking the district court to clarify if

it was also granting permanent injunctive relief and, if

so, whether Edmo actually succeeded on a final trial of

11

the merits of her Eighth Amendment claim. Id. at Dkt.

90. Only then did the district court clarify it had

ordered a permanent injunction whereby Edmo

purportedly succeeded on the merits. Id. at Dkt. 91.7

Subsequently, the Ninth Circuit held that the hearing

was a final trial on the merits and any jury trial was

waived by Petitioners. Edmo v. Corizon, 935 F.3d 757,

800-803 (9th Cir. 2019).

Given the significant ambiguities and

inconsistencies with the procedural posture below, and

Edmo’s own position that no full and final trial on the

merits has yet been had, the only equitable solution is

to vacate the injunction against Petitioners to prevent

the judgment from “spawning any legal consequences.”

Munsingwear, 340 U.S. at 41.

CONCLUSION

Petitioners respectfully request the Court enter an

order dismissing the appeal as moot and partially

vacating the lower court’s orders and judgment

consistent with Petitioners’ prior request. S.M. 8.

7

The district court continues to be inconsistent as to the

procedural posture of this case because it indicated in a status

conference earlier this year that, although the court has ruled on

the Eighth Amendment claim in terms of injunctive relief, “I

think the parties are entitled to a jury determination on

liability” on that claim. Dist. Ct., Dkt. 269 (Tr. 8:16-19) (emphasis

added). Thus, the district court’s understanding is inconsistent

with Edmo’s assertion that liability under the Eighth Amendment

for purposes of damages has already been established against Dr.

Eliason. Resp. 13-14.

12

Respectfully submitted,

DYLAN A. EATON

J. KEVIN WEST

BRYCE JENSEN

PARSONS BEHLE & LATIMER

800 West Main Street

Suite 1300

Boise, Idaho 83702

Counsel for Petitioner

Scott Eliason, M.D.

September 11, 2020

LAWRENCE G. WASDEN

Attorney General State of Idaho

BRIAN KANE

Assistant Chief Deputy

MEGAN A. LARRONDO

Deputy Attorney General

BRADY J. HALL

Special Deputy Attorney General

Counsel of Record

MOORE ELIA KRAFT & HALL, LLP

P.O. Box 6756

Boise, Idaho 83707

(208) 336-6900

brady@melawfirm.net

Counsel for Petitioners

the Idaho Department of Correction

and Henry Atencio, Jeff Zmuda,

and Al Ramirez, in their official

capacities