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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0797%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2018

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0797%3A3. Public record. Not legal advice.