Opposition Brief — Azar v. Garza, 138 S. Ct. 1790 (2018) (No. 17-654)

No. 17-654

IN THE

Supreme Court of the United States

ERIC HARGAN, et al.,

Petitioners,

Vv.

ROCHELLE GARZA, AS GUARDIAN AD LITEM TO

UNACCOMPANIED MINOR J.D.,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF IN OPPOSITION OF

ROCHELLE GARZA, AS GUARDIAN AD LITEM

TO UNACCOMPANIED MINOR J.D.

BRIGITTE AMIRI CARTER G. PHILLIPS*

JENNIFER DALVEN SIDLEY AUSTIN LLP

MEAGAN BURROWS 1501 K Street, N.W.

AMERICAN CIVIL Washington, D.C. 20005

LIBERTIES UNION (202) 736-8000

FOUNDATION cphillips@sidley.com

125 Broad Street

18th Floor

New York, NY 10004

Counsel for Respondent

Rochelle Garza, Guardian Ad Litem

December 4, 2017 * Counsel of Record

{Additional Counsel on Inside Cover]

5 Sa nea el i ES EEE IIIS ETT

DAVID COLE

DANIEL MACH

AMERICAN CIVIL

LIBERTIES UNION

FOUNDATION

915 15th Street N.W.

Washington, D.C. 20005

MELISSA GOODMAN

AMERICAN CIVIL

LIBERTIES UNION

FOUNDATION OF

SOUTHERN CALIFORNIA

1313 West 8th Street

Los Angeles, CA 90017

ARTHUR B. SPITZER

Scott MICHELMAN

AMERICAN CIVIL

LIBERTIES UNION

FOUNDATION OF THE

DISTRICT OF COLUMBIA

915 15th Street N.W.

Washington, D.C. 20005

MISHAN R. WROE

AMERICAN CIVIL

LIBERTIES UNION

FOUNDATION OF

NORTHERN

CALIFORNIA, INC.

39 Drumm Street

San Francisco, CA 94111

QUESTION PRESENTED

Whether this Court should review a court of appeals’

fact-bound decision denying an emergency stay

pending appeal for the sole purpose of vacating the

decision, where the decision did not resolve any merits

question raised by respondent's complaint, and where

the petitioners may seek this Court’s review of any

future merits determinations.

(i)

TABLE OF CONTENTS

QUESTION PREIIIN FD) cccccsscscccccsvcesssoscscesescoess

TABLE. OF AUTHORITIES ....cccccoccccssssesessssoscesees

Fe EEE ciitnierssvesascnteverssstiinintinstnceonsnsesen

COUNTERSTATEMENT OF THE CASE............

PR ARREST AR a TEENS See Me CEM eee

Bk BI vinsestastnctserinnniintctacadndic

pil eR A ES ORE ne A

REASONS FOR DENYING THE PETITION .....

L.

II.

Il.

THE DECISION BELOW DOES NOT

PRESENT A LEGAL ISSUE WORTHY OF

THIS COURT'S REVIEW. ............csccsceeesseeseees

MS. DOE’S CLAIMS REGARDING THE

TREATMENT OF PREGNANT MINORS

FAREED PORE DRPGIE - cccessnssncensersnnsesesonitoreievesoneese

VACATUR IS NOT WARRANTED ..............

THERE IS NO BASIS FOR DISCIPLINARY

ACTION AGAINST RESPONDENT'S

CEI ccsicisenscnisetionceserssemansotnnmeustennteennees

REIDY covnccscomeusessecesesosnienbenesentessssosensiunse

(iii)

Page

13

iv

TABLE OF AUTHORITIES

CASES Page

In re Bernstein, 707 A.2d 371 (D.C. 1998).... 31

Berrigan v. Sigler, 499 F.2d 514 (D.C. Cir.

I acriaacisininicaasseiadstcenehdaacelblheicubiteushibaeninbaseadanataias 22

Ciarpaglini v. Norwood, 817 F.3d 541 (7th

RN SE cinch occninsticahitshisiaddieneimbdaseesuiadasia 19

Cty. of Riverside v. McLaughlin, 500 U.S. 44

at ICRC Bee SE PS 19

In re Davis, 289 U.S. 704 (1933)................... 23

In re Disbarment of Moore, 529 U.S. 1127

ER Ms SEY PEER EL Ae h SeRa aea 23

Doe v. Bolton, 410 U.S. 179 (1973) ............... 19

Doe v. Charleston Area Med. Ctr., Inc., 529

Fe Ey i ictacicseicesesseetcnscncesons 19

Gerstein v. Pugh, 420 U.S. 103 (1975).......... 19

In re Gilbert, 276 U.S. 294 (1928)................. 23

In re Gonzalez, 773 A.2d 1026 (D.C. 2001)... 31

In re Hall, 56 S. Ct. 86 (1935)..................00. 23

In re Hall, 57 S. Ct. 107 (1936)............-220000+ 23

Harris v. McRae, 448 U.S. 297 (1980).......... 15

Mahoney v. Babbitt, 113 F.3d 219 (D.C. Cir.

IDENT ixiciaeiesstscignedimahootesecnadmasenaminesemubnnebitaces 22

In re Moore, 177 F. Supp. 2d 197 (S.D.N.Y

UTE chi iscatsesisichitadiniecseatnbinssicloesosindiaeasopcbeabeceideaibbaheil 23

Mount Soledad Mem'l Ass’n v. Trunk, 567

is I I oid sia ciccceiccdiiaciaieprenbepesisnenesie 22

Nken v. Holder, 556 U.S. 418 (2009) ............ 15

Olson v. Brown, 594 F.3d 577 (7th Cir. 2010)... 20

Planned Parenthood of Se. Pa. v. Casey, 505

i sddasaiatat 16

Roe v. Wade, 410 U.S. 113 (1973)................ 18, 19

In re Shipley, 135 S. Ct. 1589 (2015)............ 24

In re Sibley, 63 S. Ct. 438 (1943) .................. 24

Sosna v. Iowa, 419 U.S. 393 (1975).............. 19

Swisher v. Brady, 438 U.S. 204 (1978)......... 19

Vv

TABLE OF AUTHORITIES—continued

Page

Thorpe v. Dist. of Columbia, 916 F. Supp. 2d

es BE enisitriecievepiianadaenintiiinttebisies 20

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

Pteiee, GAS UB. 1B CIGD O .nccecccrcccevscescntesess 13

U.S. Parole Comm’n v. Geraghty, 445 U.S.

SUITE vennadanncunpsenetandsqséeisadeahintmbisienocte 19, 20

United States v. Munsingwear, 340 U.S. 36

iii iibassicicicescaccuesemsndiieninieteneciesedpsioemaniontanpie 22

Univ. of Tex. v. Camenisch, 451 U.S. 390

SRI sontiiniaihtctinsinconaisatbieniennteageiiis Uiesadmiisasacasatiiens 15, 21

Va. Military Inst. v. United States, 508 U.S.

ee hicidinisscinisnttignlsncdessenseelsemunceuns 17

Webster v. Reproductive Health Servs., 492

el: II eiininstt cea dictimeissidadiviniadbindiesianniciiies 16

STATUTES AND REGULATION

By eis Oe SED pial eniiccdesnideddansdinoonsendnesesens 5

Tex. Fam. Code Ann. § 33.003(i)(1)—(2)........ 6

a Or IED iescncssisetenanadercncentatsuseiede 16

RULES

Gk RE Re ea aR le TE 14, 15

STI Be Bice anaicncenicnnsnantanipmbinabiatiivedeea 9

OTHER AUTHORITIES

ABA, Model Rules of Professional Conduct

IIT iciahelsdnitciniubiscaspendindsinuniiceasndonsibotntetsatin 30, 31

ICE, Detention Standard 4.4, Medical Care

(Women) (revised Dec. 2016), https://www.

ice.gov/doclib/detention-standards/20 1 1/4-

vi

TABLE OF AUTHORITIES—continued

Page

David Luban, DOJ’s Stance on Illegal

Immigrant Abortion Case is Clear Jab at

ACLU, The Hill (Nov. 9, 2017), http://the

hill.com/opinion/healthcare/359617-dojs-

stance-on-illegal-immigrant-abortion-

case-is-clear-jab-at-aclu ...................0seeeeee0s 31

Stephen M. Shapiro et al., Supreme Court

Practice (10th ed. 2013) ...........ccccccescccsseeees 13

18B Charles Alan Wright & Arthur R.

Miller, Federal Practice & Procedure (2d

SI vids ctiadsansdcsihloaietiocteinncateietidtelenteddantbens 21

INTRODUCTION

Jane Doe is a 17-year-old who came to this country

without her parents.! She was apprehended by the

U.S. government and has been detained since

September 2017 in a shelter run by a federal

government grantee. After receiving a medical

examination and being informed she was pregnant,

Ms. Doe told shelter staff that she wanted an abortion.

With the help of two court-appointed representatives,

she received permission from a Texas state court to

bypass the State’s parental consent law and to consent

to the abortion herself. She then sought to attend

state-mandated pre-abortion counseling at a local

clinic. Pursuant to a policy adopted in March 2017 by

the Director of the Office of Refugee Resettlement

(ORR) at the U.S. Department of Health and Human

Services (HHS)—and in stark contrast to the policies

of U.S. Immigration and Customs Enforcement (ICE)

and the Bureau of Prisons (BOP)—the government

refused to allow Ms. Doe to attend any abortion-

related appointments.

Ms. Doe brought suit in federal district court seeking

to enforce her right to an abortion, consistent with the

Constitution and the state court’s order. The

government did not contest Ms. Doe’s claim that she

has a constitutional right to an abortion. Nor did it

argue that allowing her to attend the appointments

would violate statutory restrictions on the use of

federal funds or any federal regulations. Instead, it

argued that it should not have to “facilitate” her access

to an abortion—even if it did not pay for, or transport

Ms. Doe to, any appointments. Because she was in

federal custody, this policy prevented Ms. Doe from

! Respondent Garza is Ms. Doe’s guardian ad litem.

2

exercising what the government did not contest is her

constitutional right.

On October 18, 2017, the district court issued a

temporary restraining order (TRO) that, among other

things, directed the defendants to allow Ms. Doe to

attend the necessary appointments. The same day, the

government sought an emergency stay pending

appeal, which a panel of the D.C. Circuit granted in

part on October 20. On October 24, however, the D.C.

Circuit en banc granted rehearing and denied the

government’s emergency request for a stay. This time,

the government did not seek an immediate stay, even

though nothing precluded it from doing so. On the next

day, October 25, one month after the state court

authorized Ms. Doe to obtain an abortion, she finally

had the procedure.

Having failed to seek an emergency stay from this

Court on October 24, as it had from the D.C. Circuit on

the day the district court granted the TRO, the

government filed this petition nine days after the

events that it claims have rendered the issues in this

case moot. The government does not seek review of the

single legal issue decided by the court of appeals—

whether the government’s application for a stay

pending appeal met the standards for obtaining such

relief. Rather, it asks this Court to vacate that

emergency, interlocutory ruling on the ground that

some of Ms. Doe’s claims for relief have been mooted

by her abortion. The government then suggests that

this Court should decide, in the first .sstance, that

claims Ms. Doe seeks to bring on behaif of herself and

a class are likewise moot and dismiss those claims now

while they remain pending in district court.

Simultaneously, the government suggests that this

Court should consider issuing an order to show cause

3

why disciplinary action should not be taken against

respondent’s counsel “in light of the extraordinary

circumstances of this case.” Pet. 26.

But it is the government's petition that is

extraordinary: The government asks this Court to

grant certiorari without identifying any question

worthy of review; it seeks vacatur under

circumstances that the government has repeatedly

argued do not warrant this Court’s intervention; it

asks this Court to direct dismissal of an array of claims

not implicated by the decision below before any lower

court has passed on them; and it suggests that this

Court consider disciplinary action against lawyers for

faithfully fulfilling their ethical duties to their client.

The petition should be denied for at least three

reasons. First, as the government acknowledges, even

where a case has become moot, the Court should not

grant review for purposes of vacating a lower court’s

decision unless the petition independently presents an

issue that would have been worthy of review prior to

becoming moot. Yet the government identifies no such

issue. The only question decided below was whether

the government had met the requirements for a stay

of a TRO pending appeal. That narrow, fact-bound

issue, as to which the court of appeals applied the legal

standard urged by both sides, is not remotely worthy

of this Court’s review. No other issues are presented

because the court below did not decide any.

Second, even if the decision below presented an issue

worthy of this Court’s review, the relief the

government seeks would not be warranted. The

government’s argument that this Court should vacate

the decision below and direct the dismissal of all

claims for prospective relief regarding pregnant

4

unaccompanied minors on the grounds that they are

moot is erroneous. The claims in this case regarding

the treatment of pregnant minors are currently being

litigated in the district court, and finding that they are

moot would contravene this Court’s decisions

recognizing exceptions to mootness in cases like this

one where the factual basis for the claim is of a fleeting

nature.

Third, vacatur is intended to protect parties who are

prevented from appealing and who would be harmed

by the binding effects of the mooted ruling on future

litigation. In this case, however, and consistent with

established law, the D.C. Circuit’s interlocutory

decision denying a stay has no preclusive effect on

future litigation. Moreover, the government failed to

take the steps necessary to preserve its appellate

rights, and in all events retains a full opportunity to

seek review of the future litigation following final

judgment on those claims.

Finally, the government’s suggestion that this Court

should consider issuing an order to show cause why

respondent’s counsel should not be disciplined

provides no basis to find that counsel’s conduct

presents grounds for concern, much less sanction. The

petition does not present legal or factual grounds for

its suggestion that respondent’s counsel may have

violated any applicable rule of professional conduc. Jc

the contrary, the government’s recitation of events

shows that it failed to seek a stay from this Court in a

timely manner based on assumptions it made a’ out

the timing of Ms. Doe’s procedure, not on the basic of

any commitments from Ms. Doe’s lawyers.

5

COUNTERSTATEMENT OF THE CASE

A. Facts

In early September 2017, Jane Doe, a young woman

of 17, entered the United States without her parents.

She was apprehended by U.S. authorities and placed

in HHS custody in a shelter run by a federal

government grantee in Texas. Through ORR, HHS

exercises its responsibility for the “care and custody of

all unaccompanied alien children, including

responsibility for their detention, where appropriate.”

8 U.S.C. § 1232(b)(1). A nationwide consent decree

requires ORR and its shelters to provide “appropriate

routine medical . . . care, family planning services, and

emergency health care services.” Stipulated

Settlement Agreement, Ex. 1 at 1, Flores v. Reno,

No. CV-85-4544 (C.D. Cal. Jan. 17, 1997).

On March 4, 2017, the Acting Director of ORR issued

a letter informing grantees of its policy of

“prohibit[ing] [shelters] from taking any action that

facilitates an abortion without direction and approval

from the Director of ORR,” D.D.C. Dkt. No. 3-5, a

policy that effectively gives the ORR Director veto

power over a young woman’s abortion decision.

Once in HHS custody, Ms. Doe was given a medical

examination and told that she was pregnant.

10/17/2017 White Decl. 4 7. She informed her

custodians that she wished to terminate the

pregnancy. Jd. 4 8. ORR directed the shelter to inform

Ms. Doe’s mother of her pregnancy over Ms. Doe’s

objection. Appellee’s Opp. to Mot. for Stay Pending

Appeal 7 (Oct. 19, 2017). The government also

required Ms. Doe to attend a counseling session at an

anti-abortion center. 10/13/2017 Amiri Decl. 4 2;

10/11/2017 Doe Decl. 4 13.

6

To obtain an abortion under Texas law, a minor

must obtain parental consent or a court order finding

that she “is mature and sufficiently well informed to

make the decision” on her own, or that “the notification

and attempt to obtain consent would not be in the best

interest of the minor.” Tex. Fam. Code Ann.

§ 33.003()(1)-(2). A state court appointed a guardian

ad litem and an attorney ad litem for Ms. Doe and,

with their assistance, she received a court order on

September 25 granting her authority to consent to an

abortion without the knowledge or consent of her

parents or legal guardian. Pet. App. 69a.

Under Texas law, Ms. Doe first had to attend

counseling at least 24 hours in advance of the abortion

with the physician who would perform the procedure.

Pet. App. 70a. When Ms. Doe requested permission to

attend that counseling on September 27, ORR refused.

10/17/2017 White Decl. 4 10.2

ORR took this position notwithstanding contrary

ICE and BOP policies that allow detained women to

obtain abortions, and despite the government's

position in this case that Ms. Doe would have been free

to have an abortion if ORR placed her with a sponsor,

see Appellants’ Emergency Mot. for Stay Pending

Appeal 11 (Oct. 18, 2017).

B. Procedural History

On October 13, 2017, Ms. Doe’s guardian ad litem

filed suit in the U.S. District Court for the District of

Columbia against the Acting Secretary of HHS and

2In response, Ms. Doe filed a lawsuit in Texas state court on

October 5, alleging state-law neglect by the shelter. That case is

sealed and has been removed to federal court. Appellee’s Opp. to

Mot. for Stay Pending Appeal 10 n.6 (Oct. 19, 2017).

7

other department officials on behalf of Ms. Doe and a

putative class of “all other pregnant unaccompanied

immigrant minors in ORR custody nationwide,

including those who will become pregnant during the

pendency of this lawsuit,” Compl. 4 47. The complaint

alleges, among other things, that the defendants

violated the Constitution by “obstructing, interfering

with, or blocking [the minors’] access to abortion” and

by revealing “information about [the minors’

pregnancy and abortions to their parents or other

family members, including immigration sponsors.” /d.

"| 55-56. Respondent simultaneously sought a TRO

to prevent the government “from obstructing [Ms.

Doe’s] access to abortion.” Jd. at 15. On October 18,

respondent moved for class certification.

The district court granted a TRO later on October 18,

requiring defendants either to transport Ms. Doe or to

allow her to be transported “to the abortion provider

closest to [the] shelter in order to obtain the counseling

required by state law on October 19, 2017, and to

obtain the abortion procedure on October 20, 2017

and/or October 21, 2017, as dictated by the abortion

providers’ availability and any medical requirements.”

Pet App. 73a. It also temporarily restrained the

defendants from “further forcing [Ms. Doe] to reveal

her abortion decision to anyone, or revealing it to

anyone themselves” or from retaliating against her or

the shelter. Jd. at 74a. Within five hours that same

day, the government not only filed a notice of appeal

in the D.C. Circuit, but also an emergency motion for

a stay pending appeal, and a request for a temporary

administrative stay while the court considered the

stay pending appeal. Pet. 8.

On October 19, a panel of the D.C. Circuit

administratively stayed the TRO to the extent it

8

pertained to Ms. Doe’s transportation to obtain an

abortion on October 20 or 21. Order (Oct. 19, 2017).

The court did not stay other parts of the TRO,

including the portion relating to the counseling

appointment on October 19. Jd. Ms. Doe received state-

mandated counseling on October 19. Pet. 11.

Following oral argument, the panel issued a per

curiam decision on October 20 in which it vacated the

portion of the TRO that required the defendants to

transport Ms. Doe to either counseling or an abortion.

The panel noted that the government “has assumed,

for purposes of this case, that [Ms. Doe] . . . possesses

a constitutional right to obtain an abortion in the

United States.” Pet. App. 2a—3a. The panel found that

releasing Ms. Doe to a sponsor, which the government

stated it was attempting to do, “does not unduly

burden the minor's right under Supreme Court

precedent to an abortion .. . . so long as the process of

securing a sponsor to whom the minor is released

occurs expeditiously.” Jd. at 2a (emphasis added). The

court therefore remanded to the district court with

instructions to allow HHS eleven more days—until

5:00 p.m. on October 31—to secure a sponsor and

release Ms. Doe. If no sponsor was approved in that

time, the order provided that Ms. Doe could seek a new

TRO “or other appropriate order,” which the

government “may . . . immediately appeal.” Jd.

Judge Millett dissented. She pointed out that there

was no “factual basis to think that remand will

accomplish anything but a forced continuation” of Ms.

Doe’s pregnancy, given the government’s failure to

identify a sponsor after six weeks. Pet App. 13a. Judge

Millett observed, moreover, that the vetting process for

sponsors was “understandably rigorous” and

controlled by HHS. Jd. On the other side of the

9

balance, Judge Millett wrote, “|e]very day that goes by

is another day that the federal government forces [Ms.

Doe] to carry an unwanted pregnancy forward. Days

also increase the health risks associated with an

abortion procedure .... [I|f [she] is 17 or 18 weeks

along by the time this issue is resolved, the doctors at

the South Texas clinic nearest to her (assuming it still

has availability) will likely no longer be willing to

perform the procedure.” /d. at 14a.

On Sunday, October 22, Ms. Doe’s guardian ad litem

filed an emergency petition for rehearing en banc in

the D.C. Circuit. Shortly before 2 p.m. Central Time®*

on October 24, the D.C. Circuit en banc granted the

petition for rehearing and denied the government’s

motion for a stay pending appeal. The court concluded

that the government had “not met the stringent

requirements for a stay pending appeal, substantially

for the reasons” set forth in Judge Millett’s dissent

from the panel decision. Pet. App. 19a (citation

omitted). At this point in time, the government could

have immediately sought a stay from this Court,‘ just

as it had immediately sought a stay from the court of

appeals when the district court entered the TRO. But

it chose not to.

Following the D.C. Circuit’s decision, Ms. Doe’s

guardian ad litem filed an emergency motion to amend

the TRO in the district court. Pet. 10. The district court

granted the motion shortly after 4 p.m. on October 24

and issued an amended TRO that required the

defendants to transport Ms. Doe, or allow her to be

transported, “promptly and without delay, on such

% All times listed in this brief reflect Central Time.

* See Sup. Ct. R. 23.

10

dates, including today, and to such Texas abortion

provider as shall be specified by [Ms. Doe’s] guardian

ad litem or attorney ad litem, in order to obtain the

counseling required by state law and to obtain the

abortion procedure, in accordance with the abortion

providers’ availability and any medical requirements.”

Pet. App. 66a. Again, the government could have

sought a stay from this Court at this point, but did not.

C. Post-TRO Events

Upon receiving the amended TRO at about 4:15 p.m.,

Ms. Doe’s guardian ad litem emailed shelter and

Department of Justice (DOJ) personnel requesting

that they transport Ms. Doe to the clinic. Pet’rs’ Ex. B.®

Despite the court order, the shelter responded that it

would have to wait for ORR instructions. Pet’rs’ Ex. M

at 7. In response, Ms. Doe’s attorney attached the

court’s order and advised the shelter that she would

initiate contempt proceedings if the government defied

the order. Pet’rs’ Ex. C.

Soon thereafter, a DOJ attorney called Ms. Doe’s

attorney to inform her that the shelter was

transporting Ms. Doe. The DOJ attorney explained

that the shelter needed advance notice “of the timing

of any appointments,” Pet. 13. At 5:26 p.m.,

government counsel emailed Ms. Doe’s attorney to

thank her for speaking earlier and “to confirm [the

attorney's} understanding that the shelter had

5 The government proposes to lodge with the Court under sea!

exhibits of non-record material. Respondent's counsel has

informed the Court that it has agreed with the government that

it may utilize these exhibits in this brief, and seek to lodge its

own, while protecting sensitive information and individuals’

confidentiality. Respondent will seek to make these materials

public with appropriate redactions.

11

arranged for transport services this evening per your

email.” Pet’rs’ Ex. F. Government counsel continued:

“I would appreciate it if you could let me and [the

Assistant U.S. Attorney (AUSA) in Texas] know when

the timing for tomorrow’s procedure is clarified.” /d.

Ms. Doe’s attorney replied minutes later stating that

she appreciated the call, and that “[aJs soon as we

understand the clinic’s schedule tomorrow we will let

you know.” Pet. 13.

Shortly after 6:00 p.m., shelter personnel emailed

HHS and DOJ personnel that Ms. Doe’s attorney ad

litem had informed them that “the window for

appointment this evening was missed,” and Ms. Doe

should return to the shelter. Pet’rs’ Ex. E.

At 6:17 p.m., Ms. Doe’s attorney emailed DOJ

attorneys to say that the doctor was unable to stay that

evening, and that “[t]he ad litems will arrange with

the shelter to have [Ms. Doe] arrive at the clinic at

7:30 a.m.” the next morning. Pet’rs’ Ex. F. A few

minutes later, Ms. Doe’s guardian informed shelter

and DOJ personnel that Ms. Doe “has an appointment

tomorrow morning at 7:30 a.m.” at the clinic and “must

be there on time.” Pet’rs’ Ex. G. The shelter confirmed

that it would make “necessary arrangements to ensure

minor is present.” Pet’rs’ Ex. H.

At 8:13 p.m., another DOJ attorney emailed Ms.

Doe’s attorneys to say that DOJ intended to seek a stay

from the Supreme Court the next morning. Resp’ts’

Ex. 1. One of Ms. Doe’s attorneys emailed back to

thank the attorney for letting him know. Id.

At 9:31 p.m., Ms. Doe’s guardian ad litem informed

shelter and DOJ personnel that Ms. Doe's

“appointment has been moved to 4:15 a.m. at the

address provided.” Pet’rs’ Ex. K. The shelter again

12

confirmed receipt and indicated it had made

transportation arrangements. Pet’rs’ Ex. L. Shelter

personnel forwarded the email to HHS personnel at

11:56 p.m. to inform them that it had “not received

confirmation of what service will take place tomorrow,

we were under the impression [Ms. Doe] was going in

for mandated counseling, however, provided newly

requested time was issued at the request of health

center and attending physician, it is unclear whether

{[Ms. Doe] will partake in mandated counseling or

undergo medical procedure.” Pet’rs’ Ex. M at 3.

At 4:30 a.m. on Wednesday, October 25, shelter

personnel emailed HHS personnel stating that the

“health center charge nurse has confirmed that minor

is scheduled to undergo medical procedure this

morning.” Jd. at 1 (emphasis added).

After 8 a.m. that morning, Ms. Doe’s abortion was

performed by the doctor who had originally counseled

her on October 19. In response to DOJ inquiries, Ms.

Doe’s attorney confirmed this fact in an email at

9:00 a.m. Pet. 15.

Although the petition states that at the time Ms. Doe

had her abortion the government “believed that it had

identified a potentially suitable sponsor,” and

“believed that the process could be completed within a

week,” id. at 6, it is now more than a month later, and

the government still has not approved a sponsor; Ms.

Doe remains in ORR custody. Had it not been for court

intervention, Ms. Doe would still be pregnant, against

her will, today.

13

REASONS FOR DENYING THE PETITION

I. THE DECISION BELOW DOES NOT

PRESENT A LEGAL ISSUE WORTHY OF

THIS COURT'S REVIEW.

Having failed to seek a timely stay, the government

now asks the Court to grant review of an interlocutory

order that it contends is moot. By the government’s

own reasoning, the underlying decision presents no

merits issues on which the Court could rule, even if it

were so inclined. Instead, the government asks the

Court to grant review to vacate the D.C. Circuit's

decision, a form of relief this Court has described as an

“extraordinary remedy,” U.S. Bancorp Mortg. Co. v.

Bonner Mall P’ship, 513 U.S. 18, 26 (1994).

To succeed in this unusual plea, the government

must—consistent with its own longstanding view—

demonstrate that the case would have independently

warranted this Court’s review had it not become (in

the government’s view) moot. See Pet. 23 n.4. It “has

been the consistent position of the United States” that

“the Court should deny review of cases (or claims) that

have become moot after the court of appeals entered

its judgment but before this Court has acted on the

petition, when such cases (or claims) do not present

any question that would independently be worthy of

this Court’s review.” U.S. Amicus Br. at 10, McFarling

v. Monsanto Co., 545 U.S. 1139 (2005) (No. 04-31)

(cert. denied); see U.S. Br. in Opp. at 5-8, Velsicol

Chem. Corp. v. United States, 435 U.S. 942 (1978) (No.

77-900) (cert. denied); Stephen M. Shapiro et al.,

Supreme Court Practice § 19.4, at 968 n.33 (10th ed.

2013) (noting that the Court appears to follow the

government’s approach). This rule recognizes that this

Court’s review is “discretionary and exercised

14

circumspectly,” and that “there is no unfairness in

leaving the lower court’s decision intact” where “the

Court would have denied certiorari in any event.” U.S.

Br. in Opp. at 12-13, Enron Power Mkig., Inc. v. N.

States Power Co., 528 U.S. 1182 (2000) (No. 99-916)

(cert. denied); id. at 11 (agre ing that the decision

below was incorrect but urging denial in light of the

government’s longstanding position).

The government plainly cannot meet its own test. In

fact, the petition barely presents any affirmative legal

argument that the D.C. Circuit’s decision would have

warranted this Court’s review if the government had

sought review on the merits. It does not directly

claim—because it cannot—that the court of appeals’

decision denying a stay conflicts with any other

circuit’s decision, or with a prior decision of this Court.

See Sup. Ct. R. 10. Instead, the petition contains a

single sentence that merely notes that prior decisions

of this Court support the view that “the government

generally need not facilitate abortions.” Pet. 22

(emphasis added).

The lower court did not, however, resolve the merits

of Ms. Doe’s constitutional claim or the government’s

argument that its refusal to “facilitate” Ms. Doe's

abortion did not impose an unconstitutional “undue

burden” on Ms. Doe.® The only matter decided below—

and therefore the only question the government’s

petition could have presented—was whether the

government’s emergency motion for a stay of the TRO

pending appeal should be denied because the

6 Because the government did not dispute below that Ms. Doe

has a constitutional right to an abortion, it does not and could not

appropriately raise that issue here.

15

government had “not met the stringent requirements”

for such relief. Pet. App. 19a.

That narrow question is manifestly unworthy of this

Court’s review. Indeed, the government does not claim

otherwise. Nor does it raise that legal issue for this

Court’s consideration. See Pet. I. And for good reason.

The test for a stay pending appeal is highly fact-bound

and inherently individualized. See Nken v. Holder, 556

U.S. 418, 426 (2009) (court weighs multiple factors:

applicant’s likelihood of success on tne merits, whether

applicant will suffer irreparable injury, balance of

hardships, and public interest).’ The petition does not

argue that the court of appeals applied the incorrect

legal test. And review of the court of appeals’

application of Nken to the facts here is plainly not the

stuff of certiorari. See Sup. Ct. R. 10; c.f., U.S. Br. in

Opp. at 8, Walmer v. Dep't of Def., 516 U.S. 974 (1995)

(No. 95-230) (cert. denied) (urging denial of review of

preliminary injunction ruling where the only question

properly presented is the application of the established

standard to “case-specific” facts).

Even if the court of appeals Aad ruled on the

constitutionality of the government’s actions—and in

merely denying a stay pending appeal it manifestly did

not—such a decision would not conflict with any of the

cases the government cites. In those cases, the Court

found that the government’s actions were

constitutional because they “place[d] no obstacles—

absolute or otherwise—in the pregnant woman’s path

to an abortion.” Harris v. McRae, 448 U.S. 297, 314

(1980) (quoting Maher v. Roe, 432 U.S. 464, 474

7In addition to being only one of several! factors, likelihood of

success on the merits is not a determination on the merits. See

Univ. of Tex. vy. Camenisch, 451 U.S. 390, 394 (1981).

16

(1977)); Webster v. Reproductive Health Servs., 492

U.S. 490, 509 (1989); see generally Planned

Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 876

(1992) (undue burden standard). Because Ms. Doe was

(and still is) in U.S. custody, the government’s refusal

to permit her to attend her appointments places her in

a wholly different position.

The petition does not, moreover, explain why the

government has an interest in restricting access to

abortions by minors in its custody, but not adults in its

custody. The government does not dispute that it

transports women and “arrange[s]” for abortions when

they are in ICE or BOP custody.® Yet, in apparent

conflict with these policies, the government states that

any steps to provide access to an abortion give rise to

the interests it asserts, even if the government were to

play no role in transporting or paying for an abortion.

See Appellants’ Resp. to Pet. for Reh’g En Banc 11—12

(Oct. 23, 2017).9 Indeed, in its efforts to defeat class

certification, the government now represents in the

ongoing district court proceedings that HHS does not

have a “policy” prohibiting minors from attending

abortion-related appointments and questions whether

there are any other cases in which the defendants

® See ICE, Detention Standard 4.4, Medical Care (Women), at

325 (revised Dec. 2016), https://www.ice.gov/doclib/detention-

standards/201 1/4-4.pdf (if an ICE detainee requests abortion, ICE

“shall arrange for transportation at no cost” to the detainee); 28

C.F.R. § 551.23(c) (federal inmate may decide whether to have an

abortion and, if she does, “the Clinical Director shall arrange for

an abortion to take place”).

% See also Pet. App. 29a (concurrence of Millett, J.) (government

did not need to (1) pay for Ms. Doe’s abortion, (2) transport her;

(3) complete any paperwork or administrative measures (since

the contractor detaining Ms. Doe advised that it was willing to do

so); or (4) complete its own “best interests” form).

17

“have refused to release a minor in ORR care to obtain

an abortion.” Defs.’ Opp. to Mot. for Class Certification

25 (Nov. 20, 2017).

Finally, the emergency interlocutory posture of the

decision below makes it an exceedingly poor vehicle for

addressing any of these issues, even if they were

otherwise properly presented. This Court’s review of

interlocutory determinations is the exception rather

than the rule. See Va. Military Inst. v. United States,

508 U.S. 946, 946 (1993) (Scalia, J., concurring in

denial of writ of certiorari). Here, the government

itself argued that en banc review was “premature” and

“jnappropriate at this interlocutory stage of the case”

because of the lack of a well-developed factual record

given the expedited proceedings. Appellants’ Resp. to

Pet. for Reh’g En Banc 12—14 (Oct. 23, 2017) (focusing

on claims about the sponsorship process and Ms. Doe’s

immigration status); see also Pet. App. 63a n.6

(Kavanaugh, J., dissenting) (factual record in this case

is both “under-developed” and “still unclear and hotly

contested”).

In short, the petition fails to show—or even to argue

in full—that the decision below warrants this Court’s

review.

Il. MS. DOE’S CLAIMS REGARDING THE

TREATMENT OF PREGNANT MINORS ARE

NOT MOOT.

The only question the government presents for the

Court’s review is whether it should vacate the D -.

Circuit’s decision and remand with instructions to

dismiss “all claims for prospective relief regarding

pregnant unaccompanied minors” on the ground that

such claims were mooted by Ms. Doe’s abortion. Pet. I,

19 (emphasis added). The government fails, however,

18

to demonstrate that any of the claims for prospective

relief in Ms. Doe’s complaint regarding the treatment

of pregnant unaccompanied minors are moot. The

relief it requests from this Court—vacatur of the

denial of a stay pending appeal followed by dismissal

of an array of claims that are still being litigated

below—is therefore unwarranted. '°

As an initial matter, Ms. Doe indisputably has live

claims for injunctive relief to prevent the government

from retaliating against her for her decision to have an

abortion and to prevent it from disclosing information

about her abortion decision to third parties. See Pet.

App. 67a (amended TRO); Order (Oct. 30, 2017)

(extending portions of the TRO); Compl. 16. The

government appears to agree that these claims remain

live. See Pet. 24 (discussing disclosure claim).'! Ms.

Doe also seeks to bring these claims on behalf of the

class. Compl. 16.

In addition, Ms. Doe’s claims regarding access to

abortion—for which she also seeks injunctive relief,

Compl. 15—-16—fall into established exceptions to

mootness. See, e.g., Roe v. Wade, 410 U.S. 113, 125

(1973) (“[p]regnancy provides a classic justification for

a conclusion of nonmootness”). This is particularly the

case here, where Ms. Doe brings these claims on behalf

of both herself and a class of minors in HHS custody.

‘©The government does not claim—indeed it could not—that

vacatur is warranted because the case has become moot. Thus,

even in its own view, the Court’s “general practice” under

Munsingwear would not be appropriate here. Pet. 24. Instead, it

requests that this Court decide in the first instance that certain

of Ms. Doe’s claims are moot and direct their dismissal.

'\ Indeed, the government has filed a still-pending motion

seeking to modify the TRO to permit it to disclose Ms. Doe's

abortion. Defs.’ Mot. for Recons. of the Court’s October 30, 2017

Order Extending the Am. TRO (Nov. 6, 2017).

19

Compl. 4" 55-56. Indeed, courts have recognized in

the class action context that claims based on

temporary conditions may continue even if the

putative named plaintiff's claims become moot during

the litigation. The government is therefore incorrect

that “claims for injunctive relief’ related to the

putative class are moot. Pet. 25. This Court has

repeatedly stated that a class action remains live in

various circumstances where a motion for class

certification was filed prior to the named plaintiffs

claim becoming moot. See, e.g., Cty. of Riverside v.

McLaughlin, 500 U.S. 44, 52 (1991) (“That the class

was not certified until after the named plaintiffs’

claims had become moot does not deprive us of

jurisdiction.”); U.S. Parole Comm'n v. Geraghty, 445

U.S. 388, 398-99 (1980) (“named plaintiff may litigate

the class certification issue despite loss of his personal

stake in the outcome of the litigation” when claims are

“capable of repetition, yet evading review,” or

“inherently transitory”); Swisher v. Brady, 438 U.S.

204, 213 n.11 (1978); Gerstein v. Pugh, 420 U.S. 103,

110 n.11 (1975); Sosna v. Iowa, 419 U.S. 393, 402 n.11

(1975).

In this case, Ms. Doe moved for class certification on

October 18, when she was indisputably a member of

the putative class. And the primary claim on which

Ms. Doe seeks to represent a class—the right to access

abortion services while in U.S. custody—is the

archetypal example of a claim that is both inherently

transitory and “capable of repetition yet evading

review.” See, e.g., Roe, 410 U.S. at 125; Doe v. Bolton,

410 U.S. 179, 187 (1973); Doe v. Charleston Area Med.

Ctr., Inc., 529 F.2d 638, 644 (4th Cir. 1975);

Ciarpaglini v. Norwood, 817 F.3d 541, 547 (7th Cir.

2016) (characterizing pregnancy as an “inherently

transitory” situation). In fact, the Court has

20

specifically cited the abortion context as an example of

the type of claim that is appropriate for class-action

treatment even in circumstances where the named

plaintiffs claim has become moot. See Geraghty, 445

U.S. at 398, 416 n.9 (citing Roe). Here, Ms. Doe was

not only pregnant but also in federal custody, “{tjhe

length of [which] . . . is impossible to predict.” Thorpe

v. Dist. of Columbia, 916 F. Supp. 2d 65, 67 (D.D.C.

2013); see also Geraghty, 445 U.S. at 399.

The government argues that these exceptions to

class action mootness cannot apply in this case

because “[w]je simply do not know whether the district

court could have ruled on Ms. Doe’s motion for class

certification before her interest . . . otherwise would

have expired.” Pet. 26. But this is not the test. Instead,

courts look to the uncertainty surrounding the length

of the condition as a general matter. See Geraghty, 445

U.S. at 399 (“It is by no means certain that any given

individual, named as plaintiff, would be in [custody]

long enough for a district judge to certify the class.”

(emphasis added) (quoting Gerstein, 420 U.S. at 110,

n.11)); Olson v. Brown, 594 F.3d 577, 582 (7th Cir.

2010) (“it is uncertain that any potential named

plaintiff in the class of inmates would have a live claim

long enough for a district court to certify a class”).

The government’s request for this Court's

intervention should be rejected. Its argument that Ms.

Doe’s claims for prospective relief regarding pregnant

unaccompanied minors have been mooted is incorrect.

The litigation continues below, and there is no

justification for this Court to disrupt that process by

prematurely dismissing Ms. Doe’s legal claims. !”

‘2 The petition does not, moreover, cite cases where this Court

has granted review in order to direct vacatur of an interlocutory

ruling in such a posture.

21

Ill. VACATUR IS NOT WARRANTED.

The government’s asserted rationale for vacatur is

equally unpersuasive. The petition seeks to vacate the

D.C. Circuit’s decision to ensure that the ruling does

not “spawn|] any legal consequences.” Pet. 23 (quoting

United States v. Munsingwear, 340 U.S. 36, 41 (1950)).

Even if this rationale constituted sufficient grounds for

the Court to grant discretionary review and vacate

(and the government agrees it does not, see supra

Section I), the supposed “legal consequences” are

wholly illusory. No purpose would be served by the

relief the government seeks. The D.C. Circuit's

interlocutory stay decision controls none of the issues

being litigated. If and when the courts below reach the

merits and resolve the outstanding issues, the

government will have a full opportunity to seek

further review.

The government points to Ms. Doe’s Bivens claims

and her putative class action as matters that it fears

will be “constrained” by the decision below. Pet. 23—24.

That argument might carry force had the court of

appeals actually resolved the merits of any issue

presented in the complaint. But, as explained above,

the only issue before the court of appeals, and all it

decided, was whether the defendants were entitled to

a stay pending appeal. Particularly given the

summary nature of its order, this interlocutory ruling

will not “constrain” a future court that is presented

with the merits following full briefing. See 18B

Charles Alan Wright & Arthur R. Miller, Federal

Practice & Procedure § 4478.5, at 797 (2d ed. 2002)

(“law of the case is not established by . . . denial of a

stay ... pending appeal”). Even rulings on preliminary

injunctive relief are not controlling with respect to

subsequent final determinations on the merits. See

Univ. of Tex. v. Camenisch, 451 U.S. 390, 394—95

22

(1981); Berrigan v. Sigler, 499 F.2d 514, 518 (D.C. Cir.

1974). The government will be free to seek both

appellate court review and this Court’s review when

the case reaches final judgment on the merits—which

is yet another reason for denying the petition. See

Mount Soledad Mem'l Ass'n v. Trunk, 567 U.S. 944

(2012) (Alito, J., concurring in denial of certiorari).

At bottom, the government appears to be asking the

Court for a do-over in light of its failure to seek

immediate review of the court of appeals’ decision. But

that is a problem of its own making, and it fails to

identify any reason this Court’s resources should be

expended reviewing the denial of an emergency stay

pending appeal. Seeking an immediate stay from this

Court when it was still timely to do so would have been

completely consistent with the proceedings in this

case.'3 Like Munsingwear itself, this is a case “where

the United States, having slept on its rights, now asks

us to do what by orderly procedure it could have done

for itself.” 340 U.S. at 41. This Court should therefore

decline to vacate the decision below. See Mahoney v.

Babbitt, 113 F.3d 219, 221-22 (D.C. Cir. 1997)

(vacatur of preliminary injunction not appropriate

where government failed to seek a Supreme Court stay

before the mooting event occurred the day after the

injunction).

'3 For instance, when the district court issued the initial TRO

on October 18 at 3:17 p.m., the government filed a notice of

appeal, a motion for a stay pending appeal, and an administrative

stay by 8:20 p.m. the same day. After the en banc court of appeals

issued its October 24 order at 1:49 p.m., respondent’s counsel filed

a motion for an amended TRO at 3:04 p.m.

23

IV. THERE IS NO BASIS FOR DISCIPLINARY

ACTION AGAINST RESPONDENT'S

COUNSEL.

The government’s concluding suggestion that this

Court “may wish to issue an order to show cause why

disciplinary action should not be taken” against

respondent’s counsel, Pet. 26, is both extraordinary

and baseless. It finds no support in the facts or the law.

The government’s recitation of events shows that: (1)

Ms. Doe’s counsel made a series of accurate statements

concerning the availability of, and _ logistics

surrounding, Ms. Doe’s ability to obtain an abortion;

(2) some government personnel may have incorrectly

assumed that Ms. Doe could not obtain an abortion

before October 26, even though she was legally entitled

to obtain an immediate abortion, and had received

state-mandated counseling on October 19; (3) some

government lawyers may have believed that Ms. Doe’s

counsel would advise them if facts changed; and (4)

Ms. Doe’s counsel did not take affirmative steps to

notify the government that the doctor who provided

the counseling on October 19 agreed to come back to

the clinic. The government’s suggestion that this

might amount to sanctionable misconduct is not

supported by legal authorities regarding attorney

conduct, is not remotely justified by the disciplinary

cases it cites,'4 and is contrary to counsel’s respective

ethical duties.

44 E.g., In re Hall, 57 8. Ct. 107 (1936) (disbarment order

related to Jn re Hall, 56 S. Ct. 86 (1935) (attorney special master

abused appointment to coerce a litigant)); Jn re Davis, 289 U.S.

704 (1933) (reprimand for failure to respond to communications

from the clerk regarding outstanding fees); Jn re Gilbert, 276 U.S.

294 (1928) (suspension for improperly retaining fees); In re Moore,

177 F. Supp. 2d 197, 1998—@* (S.D.N.Y. 2001) (explaining that Jn

24

In an effort to show otherwise, the government

repeatedly claims that opposing counsel “represented”

“that no abortion would take place until October 26,”

Pet. 11; see also id. at 13, 14, 19. Yet no such

representation appears in the emails or the

declaration of the AUSA lodged with the Court by the

Solicitor General that the government cites. Instead,

the events recited in the petition indicate that Ms.

Doe’s representatives stated at various times on

October 24 that the physician who was available at the

clinic on October 24 (who was not the physician who

originally provided the state-mandated counseling)

could provide a new counseling session, which would

trigger a 24-hour waiting period. See 11/1/2017 AUSA

Decl. | 6-7. The government does not claim that any

of these statements was false.

The government also points to statements that

respondent's counsel made to the district court on

October 24. The petition states that respondent’s

counsel represented to the court “that for Ms. Doe to

obtain an abortion, she would need to complete a two-

step, 24-hour process.” Pet. 12. But this misrepresents

counsel’s filing. Counsel requested an amendment to

the original TRO to make clear that its relief and the

government’s obligation to transport or allow Ms. Doe

to be transported should be effective that very day. In

support of this change, counsel noted that “a qualified

re Disbarment of Moore, 529 U.S. 1127 (2000), involved a petition

for certiorari that failed to address the merits and accused lower

court of corruption)); see also In re Shipley, 135 8. Ct. 1589, 1589—

90 (2015) (discharging show cause order regarding Supreme

Court Rule 14.3 requirement that petitions for writs of certiorari

be stated “in plain terms,” and noting that attorneys “may not

delegate that responsibility to the client”); Jn re Sibley, 63 8. Ct.

438 (1943) (discharging show cause order without identifying

conduct at issue).

25

physician is available at the nearest clinic today, and

will be available to perform the procedure tomorrow.”

Pl.’s Emergency Mot. to Amend the TRO 2 (Oct. 24,

2017).'5 The motion specifically noted that it sought to

ensure that Ms. Doe could “obtain the abortion .. .

without further delay and as may be required by Texas

state law and the availability of physicians.” Id. at 1

(emphases added). The motion thereby made clear

that the TRO should enable Ms. Doe to obtain an

abortion at the earliest time and from any available

physician.

As this motion underscores, Ms. Doe’s counsel did

not represent that, in making arrangements for her to

see the physician who was at the clinic on October 24,

they were forswearing any effort to secure an

appointment with any other doctor who might be able

to provide the abortion. Indeed, the government

knew—and by its own account acknowledged to Ms.

Doe’s representative on October 24—that the original

doctor could perform the procedure without the need

to repeat counseling. See 11/1/2017 AUSA Decl. § 7.**

16 This statement was not only true, it provided new

information; as of oral argument on October 20, there were no

doctors scheduled to be at the clinic the week of October 23 after

October 24. D.C. Cir. Oral Arg. 1:13:43—1:14:51, https://

www.cadc.uscourts.gov/recordings/recordings.nsf/DocsBy

Monday?OpenView&Start Key=201710&Count=37&scode=3.

16The AUSA’s declaration states that, in response, the

attorney ad litem stated she was referring to “a different doctor”

who could perform the abortion on Thursday. 11/1/2017 AUSA

Decl. £ 7. By the government's own account, this statement was

entirely accurate. The declaration indicates that the attorney ad

litem was talking about the doctor who was at the clinic on

October 24, and the fact that new arrangements were being

contemplated so that that doctor could remain at the clinic longer

to provide the procedure. See id. © 6.

26

It also knew that Ms. Doe’s representatives were

considering various logistical arrangements to ensure

that a doctor would be available to provide her

abortion. Jd. § 6. These facts show that the situation

was fluid; Ms. Doe’s representatives were considering

multiple alternatives; and they were seeking to obtain

Ms. Doe’s long-delayed abortion as soon as possible.

The government implies that it reasonably believed

these alternatives did not include any effort to return

the original doctor to the facility, and claims that Ms.

Doe’s attorney ad litem had stated that this doctor

“was not available,” Pet. 13. But this suggestion rests

on yet another misleading paraphrase: According to

the government’s own declaration, the attorney ad

litem stated that the original doctor “was not available

on October 24.” 11/1/2017 AUSA Decl. § 6 (emphasis

added). The government does not claim that the

statement actually made was inaccurate, or that it was

a representation that Ms. Doe’s counsel would make

no effort to have that doctor return to the facility on

October 25.

The government also points to a telephone call and

exchanges of emails on October 24 in an effort to

suggest that respondent’s counsel provided assurances

that the government did not need to request a stay

because the abortion would not occur until October 26.

Specifically, the government makes much of an email

exchange in which one of its lawyers said the attorney

“would appreciate it if [Ms. Doe’s counsel] could let me

and [the AUSA] know when the timing for tomorrow’s

procedure is clarified,” Pet’rs’ Ex. F, and Ms. Doe's

counsel stated that “[a]s soon as we understand the

clinic’s schedule tomorrow we will let you know,”

Pet. 13.

27

The government takes this exchange entirely out of

context. Less than an hour earlier, the shelter had

refused to transport Ms. Doe to the clinic until it had

ORR’s approval, and the government had been advised

that opposing counsel would “initiate contempt

proceedings” if Ms. Doe was not transported to the

clinic promptly. Pet’rs’ Ex. C. The government

attorney called respondent’s counsel shortly thereafter

to explain that the shelter needed advance notice to

arrange transportation, and to confirm that Ms. Doe

was now being transported to the clinic. See Pet. 12-

13. The government attorney then sent the email that

confirmed “[the attorney's] understanding that the

shelter had arranged for transport services this

evening per your email,” and included the attorney’s

request for information about the timing of

“tomorrow's procedure.” Pet’rs’ Ex. F.

In context, the email exchange merely documents

the government’s compliance with its obligation under

the TRO to provide transportation, its commitment to

do so again the following day, and counsel's agreement

to let the government know when Ms. Doe needed to

be at the clinic the next day to avoid any further

problems with transportation.'’ Critically, the

government’s email does not mention any stay motion,

let alone link the request to the timing of such a filing.

Nor does the government claim that its attorney

mentioned any stay application in the earlier call. It is

now wishful thinking to argue that this exchange over

‘7 At the time of the government's email, Ms. Doe was being

transported for pre-abortion counseling. The request for

information about the timing of the next day's “procedure” is thus

sensibly understood as no more than a request to be informed of

Ms. Doe’s schedule the next day so that the necessary

transportation could be arranged.

28

transportation logistics reflects a mutual

understanding that the government need not seek a

stay because opposing counsel “had represented to the

government that... no abortion would occur until the

morning of October 26,” Pet. 19.

The government’s claim is further belied by the

email exchange the government points to from later in

the evening of October 24. The government asserts

that, “[b]ased on the representations of counsel that no

abortion would occur until October 26,” it informed the

Clerk’s Office and respondent’s counsel that it would

seek a stay the morning of October 25. Pet. 14. But by

the government’s own account, no communication

about the timing of a motion for a stay occurred until

8:13 p.m. the night of October 24 and, even then, the

email the government sent informing respondent’s

counsel that it would seek a stay in the morning says

nothing about any such representations. Resp’ts’

Ex. 1. Nor does it communicate the government’s

“understanding” about the timing of the procedure or

seek confirmation that respondent’s counsel shared

that understanding, much less a commitment that her

counsel would promptly advise the government of any

changed circumstances. Jd. The response from one of

Ms. Doe’s lawyers likewise includes no _ such

confirmation or commitment. Jd. Indeed, one of her

attorneys responded to the 8:13p.m. email by

expressing relief that he would not have to check his

email for any stay motion filed later that night. That

email indicates that Ms. Doe’s attorneys had expected

the government to seek a stay that night—an

expectation wholly inconsistent with the government’s

suggestion that there was a mutual understanding

that filing was unnecessary because Ms. Doe’s counsel

29

has represented that the abortion would not occur

until October 26.

The Solicitor General argues that these statements

and events of October 24 led some government

personnel to assume that Ms. Doe would not be able to

obtain an abortion prior to October 26. See Letter from

Noel J. Francisco, Solicitor General, to David D. Cole,

National Legal Director, ACLU 2 (Oct. 26, 2017)

(stating that it relied on representations of counsel and

others and “our resulting understanding that no

abortion procedure could then take place” until

October 26) (emphasis added)). But none of the

statements the government cites was a representation,

much less a commitment, “that no abortion would take

place until October 26,” Pet. 11.

The petition describes a course of events where

many different parties were communicating into the

night as events unfolded rapidly. Particularly given

this fluid situation, and the government’s knowledge

that Ms. Doe had sought throughout the litigation to

obtain an abortion as soon as possible, it is striking

that government counsel, by the government’s own

account, neither requested that Ms. Doe forbear from

obtaining the procedure while the government sought

a stay from this Court nor sought confirmation of

government counsel’s “understanding” that no

abortion would occur prior to October 26. Absent such

a commitment or confirmation, it was incumbent upon

government counsel immediately to seek a stay. The

government cannot now blame opposing counsel for its

own failure either to act with its customary alacrity or

to take any protective steps.

In short, Ms. Doe’s counsel had made clear that they

were attempting to help their client obtain the

30

abortion as soon as possible; the government knew Ms.

Doe had already received counseling from the original

doctor, so that if that doctor became available, the

abortion could take place immediately; and according

to the government’s own recitation of events, it did not

link its request for information about the timing of Ms.

Doe’s appointment on October 25 with any statement

concerning the timing of a stay motion with this Court.

To suggest that respondent’s counsel had a duty to

forbear from effectuating the TRO on October 25 under

these facts would turn counsel’s ethical obligations on

their head. The only reason Ms. Doe’s representatives

needed to talk to government personnel at all was to

tell them the timing of Ms. Doe’s appointment so that

the government would not delay Ms. Doe's

transportation to the clinic. If government counsel

wished to ensure that they would have an opportunity

to seek a stay before the abortion procedure, they could

and should have requested such an assurance from

respondent's counsel and, if they did not receive a

sufficiently clear commitment, they could and should

have immediately sought relief from this Court. They

inexplicably failed to take these reasonable steps, and

cannot now blame respondent’s counsel for the

consequences of their own inaction.

In addition to failing to supply a factual basis for its

extraordinary request, the government fails to supply

a specific legal rationale or cite to any legal authority

that supports its position. The petition vaguely refers

to “what appear to be material » isrepresentations and

omissions” by respondent’s counsel, Pet. 26, a claim

that, if true, would violate ethical rules. See ABA,

Model Rules of Professional Conduct R. 3.3 (2016)

(prohibiting knowingly false statement of fact to a

tribunal); id. R. 4.1(a) (barring “a false statement of

31

material fact or law to a third person”); id. R. 4.1 cmt. 1

(misrepresentations). But the government identifies

no misrepresentations and fails to explain how

counsels’ statements and/or actions would have

amounted to false statements. The petition says that

respondent’s counsel “arguably” had an obligation to

notify the government that Ms. Doe’s original

physician had become available on the morning of

October 25. Pet. 28. Yet the petition cites to no rule of

ethics, case law, or other authority to support such an

obligation. Indeed, no such obligation exists—and for

sensible reasons. A lawyer “generally has no

affirmative duty to inform an opposing party of

relevant facts,” except “when disclosure is necessary to

avoid assisting a criminal or fraudulent act by a

client.” ABA, supra, R. 4.1 & cmt. 1; see id. cmt. 3. A

lawyer has an “obligation zealously to protect and

pursue a client’s legitimate interests, within the

bounds of the law,” id. pmbl., and violates that duty

“when he or she... . fails to take the necessary steps to

preserve the client’s interests,” Jn re Bernstein, 707

A.2d 371, 376 (D.C. 1998), or to maintain client

confidentiality, see In re Gonzalez, 773 A.2d 1026,

1030-31 (D.C. 2001).'* The events the government

recites show that Ms. Doe’s counsel acted in their

client’s best interests, which is precisely what counsel

are supposed to do. The government’s extraordinary

‘8Far from requiring Ms. Doe’s counsel to apprise the

government of the details of Ms. Doe’s medical appointments,

ethics rules would have precluded them from agreeing to do so if

it would undermine her interests. See David Luban, DOJ’s Stance

on Illegal Immigrant Abortion Case is Clear Jab at ACLU, The

Hill (Nov. 9, 2017), http://thehill.com/opinion/healthcare/3596 1 7-

dojs-stance-on-il!egal-immigrant-abortion-case-is-clear-jab-at-

aclu.

32

request that the Court consider disciplinary action

should be rejected.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

BRIGITTE AMIRI

JENNIFER DALVEN

MEAGAN BURROWS

AMERICAN CIVIL

LIBERTIES UNION

FOUNDATION

125 Broad Street

18th Floor

New York, NY 10004

DAVID COLE

DANIEL MACH

AMERICAN CIVIL

LIBERTIES UNION

FOUNDATION

915 15th Street N.W.

Washington, D.C. 20005

MELISSA GOODMAN

AMERICAN CIVIL

LIBERTIES UNION

FOUNDATION OF

SOUTHERN CALIFORNIA

1313 West 8th Street

Los Angeles, CA 90017

Respectfully submitted,

CARTER G. PHILLIPS*

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

cphillips@sidley.com

ARTHUR B. SPITZER

Scott MICHELMAN

AMERICAN CIVIL

LIBERTIES UNION

FOUNDATION OF THE

DISTRICT OF COLUMBIA

915 15th Street N.W.

Washington, D.C. 20005

MISHAN R. WROE

AMERICAN CIVIL

LIBERTIES UNION

FOUNDATION OF

NORTHERN

CALIFORNIA, INC.

39 Drumm Street

San Francisco, CA 94111

Counsel for Respondent

Rochelle Garza, Guardian Ad Litem

December 4, 2017

* Counsel of Record