Last Friday, the Solicitor General filed a self-described “Petition for a Writ of Certiorari” in No. 17-654, Hargan
v. Garza, the case involving HHS’s efforts to deny a 17-year-old girl in
its custody—"Jane Doe"—the right to obtain an abortion to which she was entitled
under the Constitution and Texas law.
The SG’s petition asks the Supreme Court to review a decision of the
en banc U.S. Court of Appeals for the District of Columbia Circuit. That court, by a vote of 6 to 3, denied the
government’s motion to stay a preliminary injunction that Judge Tanya Chutkan issued
against officials of the Department of Health and Human Services, prohibiting
them from interfering with the efforts of Doe’s guardian and attorney ad litem
to transport her to a clinic to obtain an abortion.
The SG filed his petition, however, nine days
after Doe obtained her abortion—that
is to say, long after the preliminary injunction against HHS had served its purpose
and run its course. As the petition
itself therefore acknowledges (p. 19), the only portions of the injunction that the court
of appeals addressed “are now moot.”
That mootness is only one of many reasons why the SG’s
“Petition” is a singularly remarkable document.
I’ve never seen anything like it, especially not emanating from
the Office of the Solicitor General. In many respects this filing departs, sometimes dramatically, from
the justly lauded, traditional standards and practices of that office. Indeed, it is difficult to avoid the
conclusion that it is fundamentally a press release, for an audience other than
the Justices of the Supreme Court itself.
I hope I am mistaken about that—but it's difficult to come up with any other
explanation for it.
In this post, I’ll try to identify many of the most remarkable
characteristics of the SG’s petition.
First, however, some background is in order, without which it’s hard to
understand many of the ways in which the petition is so irregular—and how it
deviates from the norms of the Office.
Jane Doe entered the United States unaccompanied, without legal
documentation, in early September. After
being detained at the border, she was remanded to custody in a private shelter
in Texas, pursuant to a cooperative agreement between the shelter and HHS’s Office
of Refugee Resettlement (ORR).
Doe learned from a medical evaluation that she was pregnant,
and she chose to terminate her pregnancy. Pursuant to Texas law, and with the assistance
of an appointed guardian ad litem and attorney ad litem, she sought a judicial
bypass of Texas’s parental notification and consent requirements. The Texas courts provided her that bypass on
September 25, determining that she was mature enough to decide for herself
whether to continue the pregnancy—a finding that the United States has not
disputed.
Texas law, however, also requires a woman to undergo
counseling, at least 24 hours before the abortion, from the doctor who is to
undertake the procedure. Therefore, Doe sought
to obtain the state-mandated counseling on September 28 and 29, near the end of
her first trimester.
HHS, however, refused to permit anyone at the shelter to
transport Doe to a facility for such counseling, or even to allow others, such as Doe's guardian ad litem, to
transport her there. What’s more, HHS
tried to dissuade Doe from going forward with her choice. She did not change her mind, however. And yet still HHS would not budge: It ordered the private contractor that was detaining Doe not to
permit anyone to help take Doe to a clinic for counseling and a subsequent
abortion.
At this point in the narrative, it’s important to stress several additional facts:
1. The government has not contested that the Due Process
Clause of the Fifth Amendment protected Doe’s right to obtain an abortion without
the imposition of “undue burdens” once she received the judicial bypass and had
the counseling. As Judge Millett
explained (p. 21a), “[t]he government—to its credit—has never argued or even
suggested that J.D.’s status as an unaccompanied minor who entered the United
States without documentation reduces or eliminates her constitutional right to
an abortion in compliance with state law requirements.” Therefore,
if Doe were not in HHS custody, HHS would have had no practical or legal authority to prevent her from having an abortion.
2. In theory, Doe could have consented to be returned to her home country. However:
that speculative process would take some time; she alleged (according to
Judge Millett) the risk of life-threatening abuse in her nation of origin; and,
most importantly for present purposes, an elective abortion would be illegal in
her home country.
3. If Doe were a few
months older—no longer a minor—she would have been detained by the Department
of Homeland Security’s Immigration Customs and Enforcement (ICE) division,
rather than HHS, and DHS would have
permitted her to travel to a clinic to obtain the counseling and abortion. Indeed, in such a case ICE itself would “arrange
for transportation at no cost to the detainee for the medical appointment.”
4. Similarly, if Doe
were in prison following conviction for a criminal offense, the Bureau of
Prisons would likewise have “arrange[d] for an abortion to take place.”
5. Although HHS refused to conform its practices to those of DHS and BOP, the Solicitor General does not argue that
the agency could keep Doe in custody beyond the time when she would be
permitted or able, under Texas law, to obtain an abortion. (Under Texas law, abortions are illegal after
20 weeks, and some doctors refuse to perform an abortion after more than 15.6
weeks.) As Judge Kavanaugh put the point in the court of appeals (p. 56a), “[t]he Government has . . . expressly assumed, . . . presumably based
on its reading of Supreme Court precedent, that the Government lacks authority to block Jane Doe from obtaining an
abortion.” (There’s some doubt about
whether that was HHS’s position all along, but for present purposes what
matters is that the SG and HHS do not now assert such an authority—not
expressly, anyway.)
At this point you might well be wondering: If HHS was not asserting
the power to keep Doe in custody until it would be impossible for her to obtain
an abortion, what, exactly, was HHS
trying to accomplish?
The answer to this question involves the HHS practice of trying to find "sponsors" to care for unaccompanied minors who enter the country. Agency regulations provide that such sponsors must either be
related to the minor or have some “bona fide social relationship” with the
child that “existed before” her arrival in the United States. HHS has been seeking to find such a
sponsor to take custody of Doe since her arrival in September—alas, to no avail.[1]
The principal dispute in the suit was whether HHS
had the legal authority to continue to prevent Doe from being able to travel to the clinic for her medical procedure for an unknown further period of time—on top of the six or seven weeks that
had already passed since Doe chose to have an abortion--to allow HHS more time to find a sponsor
to whom it could transfer Doe. The government effectively conceded that if and when Doe had been transferred to the care of a sponsor, she would then have been able to obtain an
abortion without further HHS-imposed obstacles.
See Petition p. 2a (“The panel
majority recognized that if Ms. Doe, who was then approximately 15 weeks
pregnant, secured a sponsor, she would be able to lawfully obtain an abortion
on her own.”).
On October 13, Doe sued several HHS officials, claiming that
by continuing to require the shelter to detain her, they were imposing an
“undue burden” on her exercise of her constitutional right to terminate her pregnancy. In particular, Doe argued that the government
lacked any good reason to insist on transferring her to a sponsor—or taking
several more days or weeks to try to effect such a transfer—before allowing Doe
to travel to a clinic to exercise that right.
And in the meantime, as Judge Millett explained (p. 14a), every day that
passed was another day that Doe was compelled by HHS to carry an unwanted
pregnancy, and also increased the health risks to her once she did have the abortion procedure.
On Wednesday, October 18, Judge Chutkan granted a de facto preliminary injunction (styled as a TRO) forbidding HHS from interfering with Doe’s ability to obtain
the counseling and then an abortion.
After obtaining this preliminary relief, on Thursday, October 19, Doe
traveled to a clinic, where a doctor provided her with the counseling that Texas
law requires as a precondition to an abortion.
At that point, the government appealed the district court order,
and made a motion to the court of appeals for an emergency stay of the district court order, pending appeal. A panel of the D.C. Circuit heard argument on the motion for an emergency stay on Friday, October 20. Later that day, by a 2-1 vote, it stayed those
portions of the injunction that prohibited HHS from preventing others from transporting Doe to a facility for the abortion and “from interfering with or
obstructing J.D.’s access to abortion counseling or an abortion.” The majority (Judges Henderson and Kavanaugh) held
that so long as the sponsorship transfer process “occur[ed] expeditiously,”
such a delay would not unduly burden Doe’s constitutional right, and it gave
the government until at least October 31 to complete that process of transferring Doe to a sponsor. Judge Millett dissented and filed an opinion
shortly thereafter.
On Sunday, October 22, Doe filed a petition for rehearing en
banc with respect to the stay. At 3:00 p.m. on Tuesday, October
24, the full court of appeals granted the petition for rehearing and denied the
government’s motion for a stay pending appeal because it had not satisfied “the
stringent requirements for a stay.” The en
banc court remanded the case to the district court “for further proceedings to
amend the effective dates in * * * its injunction.” Judge Millett once again wrote an opinion of
her own, but the court majority did not issue a full opinion; its judgment simply stated that they had reached their decision “substantially for the
reasons set forth in the October 20, 2017 dissenting statement of Circuit Judge
Millett.”
About two hours later, Judge Chutkan amended her injunction
to provide that HHS was “[r]equired,” inter alia, to allow Doe to be
transported by either her guardian or attorney ad litem to an abortion provider
for counseling (if necessary) and the abortion procedure itself, “promptly and
without delay, on such dates, including today, specified by J.D.’s guardian ad
litem or attorney ad litem.”
At about 4:00 a.m. the next morning, Wednesday, October 25,
the shelter staff arrived with Doe at the clinic, and the doctor who had
counseled her back on October 19 performed the abortion shortly
thereafter. Thus, HHS complied with the
October 24 injunction: It did not
prevent Doe’s travel to the clinic or try to interfere with her abortion. (At the end of this post I’ll have more to say about the
specific communications between the parties on the night of the 24th/25th,
between the issuance of the injunction and the abortion.)
*
* * *
Nine days later,
the SG filed his petition for certiorari, asking the Supreme Court to vacate
the court of appeals’ judgment—which was, recall, merely a decision to deny the
government’s motion for an emergency stay of the district court injunction pending appeal.
With that background now established, here are some of the most
remarkable things about the SG’s petition:
1. The Missing
Career Attorneys.
The oddity of the petition begins on the cover page.
The petition is signed by the Solicitor General, four other political appointees at DOJ, and two career lawyers who have been detailed to the Office of the Assistant Attorney General for the Civil Division (or so I am informed). No lawyers from HHS signed the brief. No career lawyers in the Civil Division (other than one who is detailed to the AAG’s Office)—and no Civil Appellate supervisors at all, other than the political appointee—signed the brief. And, most tellingly, no Assistant to the Solicitor General signed the brief, although there are several Republican and conservative attorneys in that Office. (By contrast, OSG Assistants have, for instance, signed the Office's travel ban and Masterpiece Cakeshop briefs, as one would expect—those briefs are certainly controversial, but they’re nothing like the Hargan petition in terms of deviation from established norms.) There are two possible explanations for this absence. Either the Solicitor General declined to assign the case to any Assistant--which would be a significant deviation from ordinary practice--or (more likely) an Assistant worked on the petition but declined to sign it. As far as I’m aware, the absence of an Assistant’s signature on a petition or merits brief is very rare--perhaps unprecedented in recent decades. (An alum of the Office has related to me that perhaps something similar happened in the 1980’s when Charles Fried was Solicitor General.)
The petition is signed by the Solicitor General, four other political appointees at DOJ, and two career lawyers who have been detailed to the Office of the Assistant Attorney General for the Civil Division (or so I am informed). No lawyers from HHS signed the brief. No career lawyers in the Civil Division (other than one who is detailed to the AAG’s Office)—and no Civil Appellate supervisors at all, other than the political appointee—signed the brief. And, most tellingly, no Assistant to the Solicitor General signed the brief, although there are several Republican and conservative attorneys in that Office. (By contrast, OSG Assistants have, for instance, signed the Office's travel ban and Masterpiece Cakeshop briefs, as one would expect—those briefs are certainly controversial, but they’re nothing like the Hargan petition in terms of deviation from established norms.) There are two possible explanations for this absence. Either the Solicitor General declined to assign the case to any Assistant--which would be a significant deviation from ordinary practice--or (more likely) an Assistant worked on the petition but declined to sign it. As far as I’m aware, the absence of an Assistant’s signature on a petition or merits brief is very rare--perhaps unprecedented in recent decades. (An alum of the Office has related to me that perhaps something similar happened in the 1980’s when Charles Fried was Solicitor General.)
There are very good reasons, some of which I set out below,
why so many attorneys apparently declined to be associated with this
filing.
2. The Threadbare
(at best) Argument on the Merits of the Fifth Amendment Question.
The lead section of the SG’s Petition in Hargan, entitled “Reasons for Granting the Petition,” asserts right at the outset (pp. 17-18) that the question this
case once “presented” was a
substantive question under the Fifth Amendment, namely, “whether the government
must facilitate access to an abortion that is not medically necessary to
preserve the life or health of an unaccompanied alien minor who was apprehended
unlawfully entering the United States, who declines to request voluntary
departure to her home country, who has not yet identified a qualified sponsor to
whom she can be released, and who thus is in the government’s custody.”
In an ordinary petition, the Solicitor General would proceed to offer a substantial argument (even if not as extensive as in a merits brief) about why the court below erred in deciding that question. The Hargan petition, however, devotes only three
sentences to the question of whether HHS violated Doe’s Fifth
Amendment rights (p. 18), and does not cite a single legal authority in support of its "argument":
Ms. Doe contended that the
government’s actions as her custodian were obstructing her access to an
abortion in violation of the Fifth Amendment, but she could have left
government custody by seeking voluntary departure, or by working with the
government to identify a suitable sponsor who could take custody of her in the
United States. Given those options, the
government was under no obligation to facilitate Ms. Doe’s abortion. . . . [The panel’s] narrow ruling, which had the
potential to permit Ms. Doe to access an abortion without requiring the
government to facilitate it, was far more appropriate in the circumstances of
this case than the en banc court’s sweeping constitutional rule and the
district court’s order for immediate relief that would be final rather than
“temporary.”
That’s it.
Other than the unadorned ipse dixit that the panel’s judgment “was far more appropriate”
than that of the en banc court, these three sentences include mere whispers of two
arguments, neither of which is substantial, and neither of which the brief
itself bothers to defend.
First, the government suggests that HHS’s actions did not
burden Doe’s constitutional right at all—or not much, anyway—because “she could
have left government custody by seeking voluntary departure, or by working with
the government to identify a suitable sponsor who could take custody of her in
the United States.” This bare-bones argument hardly warrants serious consideration—which is presumably why the SG
offers no support or argument on its
behalf. In particular, Doe's hypothetical “voluntary departure” was not a realistic option, for the reasons Judge
Millett explained—and, in any event, Doe could not have obtained an abortion in her home
country. (See also Justice Kagan’s recent retort in Jennings
v. Rodriguez (p. 25) to Deputy SG Stewart’s self-described “most extreme
answer” that a criminal alien detained for more than six months “always has the
option of terminating the detention by accepting a final order of removal and
returning home”: “I take it that that’s
your most extreme answer,” quipped Justice Kagan, “because it doesn’t sound all
that good.”). Nor does the SG make any
effort to show that Doe would have been expeditiously transferred to a
“suitable sponsor”—and then permitted to obtain the abortion—if only she had
“worked with the government.”
All that remains, then, is the third sentence, which invokes the government’s mantra, repeated
no fewer than ten times in the course of the petition, that it was permissible for HHS to prohibit
its contractor from allowing Doe to go to the clinic because the
Constitution does not require the government to “facilitate” an abortion.[2] As Judge Millett wrote (p. 27a), however, this
is mere “verbal alchemy.” Judge Chutkan’s
injunction did not require the defendant government officials to “facilitate” an abortion or, for
that matter, to do anything. That injunction was, for all relevant purposes
here, entirely prohibitory: In the
words of the injunction itself (pp. 66a-67a), HHS was enjoined to “allow J.D. to be transported by either her guardian or attorney ad
litem” to the clinic, and was prohibited from “interfering with or obstructing J.D.’s access to abortion
counseling or an abortion.” As Judge
Millett elaborated (p. 29a):
The government need not pay for
J.D.’s abortion; she has that covered (with the assistance of her guardian ad
litem). The government need not transport
her at any stage of the process; J.D. and her guardian ad litem have arranged
for that. Government officials themselves do not even have to do any paperwork
or undertake any other administrative measures.
The contractor detaining J.D. has advised that it is willing to handle
any necessary logistics, just as it would for medical appointments if J.D. were
to continue her pregnancy. The
government also admitted at oral argument that, in light of the district
court’s order, the Department of Health and Human
Services does not even need to complete its own self-created internal “best
interests” form. See Oral Arg.
31:40-33:15.[3]
In sum, the injunction, fairly understood, merely required HHS “to refrain from barring its contractor from allowing J.D. to receive the medical care” (p. 6a). Accordingly, even at a time in which robust claims of complicity have run
riot, the SG’s insistence that Judge Chutkan’s injunction required HHS to
“facilitate” an abortion surely
is a bridge too far.
After all, if HHS’s simple failure to prohibit Doe’s guardian ad litum from transporting her
to the clinic actually meant that HHS “facilitated” the ensuing abortion, it would follow that DHS and BOP regularly “facilitate” abortions when they transport
their custodial detainees to clinics so that those women may obtain such
procedures. Surely that cannot be the view of the United States--yet it is the logical implication of the SG’s "facilitation" argument.
Indeed, if one took that argument seriously, then even HHS itself was asking the court for leave to be able to "facilitate" Doe's abortion. Recall the result HHS was seeking--namely, an opportunity to transfer Doe to a sponsor before she could exercise her rights. If the failure to stand in the way of the guardian ad litem's efforts to take Doe to the clinic would result in HHS's "facilitation" of Doe's abortion, as the SG argues, then it stands to reason that HHS's desired transfer of Doe to a sponsor’s custody--and its subsequent failure to do anything to prevent that sponsor from taking Doe to the clinic--would likewise result in HHS "facilitation." Indeed, as
Judge Millett explained (p. 30a), transferring Doe to a sponsor would, if anything, have required
far more use of governmental
resources than the simple transfer of Doe from the contractor to the custody of
her guardian ad litem.
The paucity of the SG's argument on the Fifth Amendment question is especially noteworthy in light of the separate opinions filed by dissenting judges on the en banc court of appeals. Both Judge Henderson and Judge
Kavanaugh offered arguments in HHS’s
defense that do not appear in the petition itself: Judge Henderson argued at length (pp. 35a-53a)
that Doe has no due process rights at all. Judge Kavanaugh, for his part, rejected that extreme argument, yet he offered instead an argument sounding in paternalism—namely, that the government had an
interest in transferring Doe to the custody of a sponsor before she could obtain an abortion in
order to allegedly “place
the minor in a better place when deciding whether to have an abortion” (p. 60) and
to help Doe “navigate what is undeniably a difficult situation” (p. 63a).
Strikingly, the SG’s petition does not rely upon either of these arguments offered by its allies in the court of appeals—indeed, it doesn’t even describe them.[4]
Strikingly, the SG’s petition does not rely upon either of these arguments offered by its allies in the court of appeals—indeed, it doesn’t even describe them.[4]
3. The Failure to
Address the Actual Question the Court of Appeals Decided.
In any event, the Solicitor General is wrong to suggest that the question the court of
appeals decided was the ultimate
merits of the Fifth Amendment “undue burden” inquiry described at the outset of
the “Reasons for Granting” section of the petition. The court of appeals acted in the
context of interlocutory relief, and
only on a motion by the government for an emergency stay of the district court’s
injunction pending appeal. Therefore the actual
issue that court addressed and decided was not the ultimate merits of the constitutional question, as
such, but instead—as that court expressly noted (p. 19a)—whether HHS had "met the stringent requirements
for a stay pending appeal."
The petition does not even venture to argue that the court
of appeals erred on that question—the
only one the court below purported to answer.
Indeed, the Solicitor General neglects to mention what the standards for a
stay pending appeal might be, let alone to say anything about whether the government
satisfied those “stringent” standards. He does not address Judge Millett’s point (p. 31a) that the court of appeals could only stay Judge Chutkan’s injunction if she had abused her
discretion--and therefore he also fails to argue that the district judge in fact abused that discretion. All of which is to say that the petition is silent on the actual question the court of appeals decided.
4. The Failure to
Explain Why Any Question Presented in the Case is Cert.-worthy.
The Supreme Court grants petitions for a writ of certiorari "only for compelling reasons," and rarely grants a petition "when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law." Supreme Court Rule 10. Yet on the absolutely critical question of why the Court's review of the court of appeals’ interlocutory decision is "cert.-worthy"—the central question that typically
dominates petitions for certiorari—the SG’s brief says nothing
at all. That is not an exaggeration or hyperbole. Nothing. (Later in the brief, in the discussion of whether the Court should vacate the judgment below, the petition does include a paragraph (pp. 21-22) purporting to explain why "absent mootness, this Court likely would have granted certiorari." That paragraph, however, does not offer any such reasons, other than that "there is no precedent from this Court (or any court) holding that the federal government imposes an 'undue burden' by refusing to facilitate access to an abortion for a pregnant unaccompanied minor who retains the freedom to leave government custody by returning to her home country or by helping to identify a suitable sponsor." That absence of any similar previous cases, however, is obviously not a reason for the Court to grant cert.--indeed, it demonstrates why this case is so idiosyncratic and thus why cert. would be inappropriate here.)
In this instance, the SG's silence is understandable, because there is no reason for the Court to grant certiorari. There is no circuit-split. No court declared any federal statute to be unconstitutional. The ruling below was interlocutory--and then only on the question of whether a stay pending appeal should be granted, and thus on the question whether the district judge abused her discretion. The panel majority did not issue an opinion on the merits (or even say much about whether the standard for an emergency stay was met). As explained in Point 6, below, the decision should have no precedential effect even in this case, let alone in future cases. The agency's policy here is novel and idiosyncratic, not to mention inconsistent with the policies of other federal agencies. Moreover, the case is highly fact-intensive, and deals with legal arguments offered by the government that have never been raised before and might never be raised again (arguments that the court of appeals did not even resolve on the merits, in any event).
The case, in other words, is not cert.-worthy, whatever one thinks of the merits of the underlying Fifth Amendment question--which probably explains why the Solicitor General does not attempt to argue otherwise. It's a cert. petition that fails to offer any purported, let alone compelling, reason for the Court to grant cert. [UPDATE: This point has largely been overlooked in the controversy about the petition's focus on the conduct of Doe's counsel (see Point 9, below)--but it is the probably the most inexplicable, unprecedented, and unjustifiable thing about the petition. (Also, as I discuss in Point 7 below, the fact that the Solicitor General does not argue, let alone show, that the case is cert.-worthy means that his request for the Court to vacate the judgment below should be rejected out of hand.)]
The case, in other words, is not cert.-worthy, whatever one thinks of the merits of the underlying Fifth Amendment question--which probably explains why the Solicitor General does not attempt to argue otherwise. It's a cert. petition that fails to offer any purported, let alone compelling, reason for the Court to grant cert. [UPDATE: This point has largely been overlooked in the controversy about the petition's focus on the conduct of Doe's counsel (see Point 9, below)--but it is the probably the most inexplicable, unprecedented, and unjustifiable thing about the petition. (Also, as I discuss in Point 7 below, the fact that the Solicitor General does not argue, let alone show, that the case is cert.-worthy means that his request for the Court to vacate the judgment below should be rejected out of hand.)]
5. The Failure to
Engage with the Opinions Below.
The Solicitor General’s petition does not even describe, let alone discuss,
the analysis offered in any of the three opinions filed by the judges on the
court of appeals. It does not, for
example, take issue with Judge Millett’s quite powerful counterarguments—or
even identify what they were. Most importantly,
Judge Millett explained (p. 12a) that HHS offered no good reason for
insisting that Doe be transferred to a sponsor before exercising her
constitutional right: the two things are
not, she explained, “mutually exclusive” and “can proceed simultaneously." The agency's "desire to pursue that [transfer] process
has nothing to do with and is not a reason for forcing J.D. to continue the
pregnancy.” The Petition does not offer any reason to think Judge Millett was wrong about that. Nor, as noted above, does the SG even venture to make the paternalistic argument that Judge Kavanaugh offered
for HHS’s preference for a pre-abortion transfer of custody (viz., that
transfer to a sponsor would “place
the minor in a better place when deciding whether to have an abortion”).
The SG’s conspicuous decision to ignore what the judges
below wrote is, to say the least, not the ordinary fare of an OSG petition.
6. The
Unconvincing Argument for Vacatur of the Mooted Judgment Below.
Even if the Solicitor General had offered any basis for concluding that the
court of appeals erred, and that the case is cert.-worthy--and, as explained above, he does neither--he concedes (p. 19)
that any controversy concerning the lawfulness of Judge Chutken's preliminary
relief is now moot. The SG thus asks the
Court to vacate the court of appeals’ judgment under the Munsingwear doctrine, just as he recently did in the mooted-out
“travel ban” cases.
The only substantive reason the SG offers for such vacatur,
however, is that “the court of appeals’ decision on Ms. Doe’s now-moot claim
for injunctive relief could have significant legal consequences” (p. 23). In particular, the SG asserts that the court
of appeals’ judgment might have such “legal consequences” for the adjudication
of Doe’s remaining Bivens claim for
damages, and for any possible action on behalf of a not-yet-certified class of
similarly situated minor aliens in HHS custody.
Such future litigation, argues the SG (p. 24), “should not be constrained
by the D.C. Circuit’s ‘preliminary’ adjudication of the merits of the Fifth
Amendment claim. . . . The en banc
court’s decision should not be left on the books for use by these and other
plaintiffs.”
As the SG undoubtedly knows, however--and as DOJ would certainly argue in any follow-on litigation--the court of appeals’
judgment here should have little or no “constraining” effect on any future litigation: It was merely an interlocutory judgment on a
motion to stay a district court injunction pending appeal, and the only thing the en banc court
decided was whether the government had met the “stringent” requirements for such
a stay. The court of
appeals did not even set forth its reasoning; it simply stated that it had
reached its decision “substantially for the reasons set forth in the October
20, 2017 dissenting statement of Circuit Judge Millett.” To be sure, the decision below likely
reflects, at least to some extent, what the various judges on the en banc court of appeals might do on the merits if it ever
reaches them in future litigation—but that would be true whether or not the
Supreme Court vacates the court of appeals’ judgment. The relevant point is that the en banc court's judgment should have no stare decisis effect,
let alone any preclusive, or res judicata, impact on future government litigation of the merits
of the underlying Fifth Amendment question.
Accordingly, it does not really matter whether the
Court does or does not vacate the court of appeals’ judgment: Any future litigation should proceed in exactly
the same manner, and with exactly the same results, regardless--something the SG's vacatur discussion does not acknowledge, let alone
address.
7. The Argument that
the Court Should Vacate the Judgment Below Even if It Concludes that the
Petition is Not Cert.-Worthy.
As the petition concedes (p. 23 n.4), the Solicitor General's longstanding view has been that the Court typically should not even consider the question of vacatur unless it first concludes that a
petition is cert.-worthy: “[W]hen a case
has become moot after the court of appeals’ ruling, but before a petition for
certiorari is granted, this Court ordinarily should decline to vacate the
decision below if the case would not have warranted review on the merits.” (As far as I know, the Court in recent years
has typically followed the SG’s suggestion in this respect. See, e.g., the cases cited in Clarke v. United States, 915 F.2d 699, 713-715 (D.C. Cir. 1990) (en banc) (Edwards, J., dissenting). [UPDATE: As the Court recently explained, "[t]he equitable remedy of vacatur ensures that 'those who have been prevented from obtaining the review to which they are entitled [are] not ... treated as if there had been a review,'" Camreta v. Greene, 563 U.S. at 712 (quoting Munsingwear, 340 U.S. at 39); but the Court has "left lower court decisions intact when mootness did not deprive the appealing party of any review to which he was entitled." Id. at 712 n.10.]) That ought to be the start and finish of the petition's request for vacatur because, as noted in Point 4 above, the Solicitor General does not even try to show that there is any reason for the Court to grant certiorari.
Startlingly, however, the SG then proceeds in the very same
footnote to insist that the Court should vacate the court of appeals’ judgment in this case, “even if review were not otherwise warranted”!
He cites no authority for this suggestion, which is contrary to the
Office’s traditional view. Moreover, the only reason
he offers in support of it is that “the government’s reasonable reliance on the
representations of opposing counsel” allegedly “frustrated the government’s
opportunity to seek this Court’s review.”
I hope it is obvious why this is a non
sequitur: Whether or not the SG had
an “opportunity” to seek the Court’s review earlier than on November 3, and
whether or not the actions of opposing counsel in any way stymied or delayed that
opportunity (on which more below), the issue the SG is addressing in the
footnote is whether the Court should vacate the court of appeals’
judgment assuming the Court's review of the judgment is not warranted. The answer to that question ought to be “no,”
regardless of the date on which such an unpersuasive petition is filed, and
regardless of the nature of the attorneys’ correspondence preceding that
filing—factors that have no bearing at all on the question of whether vacatur
is appropriate in a non-cert.-worthy case.
8. The
Unexplained Request that the Supreme Court Decide in the First
Instance Whether the Plaintiff's Unresolved Claims on Behalf of an Uncertified Class Remain
Justiciable.
The Solicitor General further argues (pp. 24-26) that Doe’s claims for prospective relief on behalf of a class of minors are now nonjusticiable because her own claims “no longer present a live controversy” and the district court has not yet certified the class. That may or may not be correct—it likely depends (see pp. 25-26) on whether the class claims “are ‘so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires’” (quoting Genesis Healthcare Corp., 569 U.S. at 76). In any event, that’s a question for Judge Chutkan’s consideration in the first instance.
For some reason, however, the SG asks the Supreme Court
itself to remand the case to the court of appeals “with instructions to direct the district court to dismiss Ms.
Doe’s claims for injunctive relief insofar as they relate to the government’s
treatment of pregnant unaccompanied minors” (p. 25; see also pp. i (Question
Presented), 29 (Conclusion)). The petition offers no reason why the Court should take such an unusual step, which would
bypass the ordinary, appropriate process for consideration of such questions of
class relief once a putative class representative has received a remedy sufficient to cure her own injury. And, once again,
the SG fails to cite any legal authority in support of his request for the
Court to direct such a novel, premature disposition of the pending, heretofore unaddressed claims.
9. The Petition’s
Obsessive, Misguided Focus on Alleged Misconduct of Doe’s Counsel.
And then we come, finally, to the aspect of the petition that
has already engendered so much public notoriety: its highly unusual focus on a series of
communications between the parties’ counsel during the last few hours before
Doe’s abortion, and its shocking suggestion that the Court should consider taking “disciplinary
action” against Doe’s counsel based upon that correspondence and “what appear
to be material misrepresentations and omissions to government counsel designed
to thwart this Court’s review” (p. 26).
The Solicitor General is strangely obsessed with this ancillary aspect of
the case: He leads with it on the very first pages of his petition, and devotes
more than 12 of the petition’s 28 pages to the matter (see pp. 1-2, 11-17, 19,
21, 26-28). As far as the yet-available
record reflects, however, there’s not much, if anything, to it: It’s at best a tempest in a teapot, and perhaps something much more troubling--namely, a wholly unwarranted accusation of misconduct on
the part of opposing counsel.
The gist of the dispute is based on the following events of October 24th and 25th, in the ten hours or so preceding the abortion:
When Judge Chutkan issued her amended preliminary injunction
late in the afternoon of Tuesday, October 24, the parties all assumed (as did
the injunction itself) that Texas law required Doe to obtain counseling again
at least 24 hours before she could have her abortion, because the doctor who
previously counseled her on October 19th was not available to
perform the procedure (and Texas law requires the same doctor to perform both
functions). [UPDATE: The Solicitor General emphasizes (p. 12) that Doe's counsel themselves represented to Judge Chutkan, on that Tuesday afternoon, that the first doctor was not available. That is true, but counsel did not do so because they had a legal obligation to so inform the court or the government; instead, they offered that information about the first doctor because they were asking the court to amend the injunction to require the shelter and the government to allow Doe to travel to the clinic twice--something that Judge Chutkan promptly did. See p. 66a (requiring defendants to allow Doe to be transported by either her guardian or attorney ad litem to the designated abortion provider "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").]
[UPDATE to add further details: Counsel informed the court that a new doctor was available that evening for counseling, and therefore all parties assumed that Doe would have the abortion the following evening, Wednesday the 25th. Doe's representatives instructed the shelter to transport her immediately to the clinic at around 6:00 p.m. on the 24th. That trip was unsuccessful, however, because the new doctor unexpectedly had to leave the clinic before Doe arrived.] Accordingly, shortly after 7:00 p.m., Doe’s counsel informed government counsel that Doe had rescheduled her appointment at the clinic for the next morning (Wednesday the 25th) at 7:30 a.m. At the same time, according to the SG (and I have no reason to question this), Doe’s attorney ad litem informed the Assistant U.S. Attorney (AUSA) that because Doe’s previous doctor was not available and because it was not feasible for her to receive counseling from another doctor until the Wednesday morning appointment, the abortion could not occur until Thursday morning the 26th.
[UPDATE to add further details: Counsel informed the court that a new doctor was available that evening for counseling, and therefore all parties assumed that Doe would have the abortion the following evening, Wednesday the 25th. Doe's representatives instructed the shelter to transport her immediately to the clinic at around 6:00 p.m. on the 24th. That trip was unsuccessful, however, because the new doctor unexpectedly had to leave the clinic before Doe arrived.] Accordingly, shortly after 7:00 p.m., Doe’s counsel informed government counsel that Doe had rescheduled her appointment at the clinic for the next morning (Wednesday the 25th) at 7:30 a.m. At the same time, according to the SG (and I have no reason to question this), Doe’s attorney ad litem informed the Assistant U.S. Attorney (AUSA) that because Doe’s previous doctor was not available and because it was not feasible for her to receive counseling from another doctor until the Wednesday morning appointment, the abortion could not occur until Thursday morning the 26th.
With that new understanding of what was likely to occur, the SG
prepared to file an application to the Supreme Court for extraordinary relief
on Wednesday morning, the 25th, and informed the Clerk’s Office and
respondent’s counsel of that planned filing.
Notably, the SG chose not to
ask the Chief Justice for an administrative stay in the interim, presumably on
the understanding that it was not necessary in order to prevent Doe from
obtaining her abortion.
That evening, Doe’s
representatives got word that Doe’s original doctor—the one who had counseled
her on the 19th—might be available
to perform the abortion the next morning; accordingly, they rescheduled her appointment from 7:30 a.m. to 4:15 a.m. At 9:30 p.m., Doe’s guardian ad litem emailed the Texas shelter and the AUSA to
inform them of the new appointment time—a step that was necessary in order to inform the shelter employees of when they had to allow Doe’s transport to the clinic. The guardian ad litem’s e-mail did not
specifically mention that the new appointment might be with Doe’s previous doctor (something that was not yet confirmed),
nor that Doe might obtain an abortion at that appointment if the first doctor were able to attend. Even so, and as the SG acknowledges
(pp. 14-15), the unusual time of the rescheduled appointment naturally “caused
shelter staff to wonder later that night whether the nature of the appointment
also might have changed.”
Sometime after midnight, early on the 25th, Doe and her representatives confirmed that the original doctor could be present at 4:15, and could perform the abortion then. They did not send any further communication to the government at that point.
In the wee hours of Wednesday morning, the shelter allowed Doe to be transported to the clinic, and shelter staff arrived with her there at 4:15 a.m., at which point they confirmed their suspicion that she intended to obtain an abortion at that appointment. Shelter staff immediately e-mailed government personnel to inform them that the procedure was proceeding. The SG’s petition does not reflect whether the AUSA or shelter staff told anyone in the SG’s Office about the change in appointment time—and their suspicions of the possible reasons for that change—earlier, between 9:30 p.m. and 4:30 a.m. What is clear, however, is that the government did not take any steps during those seven hours, after it learned of the very unusual 4:15 a.m. appointment time, to ask the Court to intervene to prevent Doe’s transport to the clinic that morning.
In the wee hours of Wednesday morning, the shelter allowed Doe to be transported to the clinic, and shelter staff arrived with her there at 4:15 a.m., at which point they confirmed their suspicion that she intended to obtain an abortion at that appointment. Shelter staff immediately e-mailed government personnel to inform them that the procedure was proceeding. The SG’s petition does not reflect whether the AUSA or shelter staff told anyone in the SG’s Office about the change in appointment time—and their suspicions of the possible reasons for that change—earlier, between 9:30 p.m. and 4:30 a.m. What is clear, however, is that the government did not take any steps during those seven hours, after it learned of the very unusual 4:15 a.m. appointment time, to ask the Court to intervene to prevent Doe’s transport to the clinic that morning.
At 10:00 a.m., Doe’s counsel informed the government that
Doe had obtained her abortion.
Based largely upon this set of facts (and one other exchange
of communications, discussed below), the SG now makes the extraordinary
suggestion (p.26) that the Court “may wish to issue an order to show cause why
disciplinary action should not be taken against respondent’s counsel—either directly by this Court
or through referral to the state bars to which counsel belong—for what appear
to be material misrepresentations and
omissions to government counsel designed
to thwart this Court’s review.” The
SG further represents (p.28) that it “appears” that Doe’s counsel may have
violated “duties to this Court and to the Bar,” warranting “disciplinary action.”
These are extremely serious charges, including against fellow members of the Supreme Court Bar, and the suggestion that the Court take steps to trigger disciplinary proceedings is highly irregular, if not unprecedented in a petition. Yet, in keeping with his practice in rest of the petition, the Solicitor General does not offer a single authority, or legal citation, in support of his inflammatory suggestions of attorney wrongdoing. In particular, and as I explain further below, the petition does not point to even a single “misrepresentation,” material or otherwise, that counsel made, nor does it identify the
“duties” that counsel are said to have violated.
The basis for the SG’s accusations appears to be an exchange
of communications between counsel for the parties early in the evening on Tuesday, October 24,
approximately ten hours before the abortion.
According to the petition (pp.12-13), government counsel
made two requests of Doe’s counsel in those communications. First, at 6:13 p.m., in a telephone message
to Doe’s counsel, government counsel “ask[ed] to be apprised of the timing of any appointments” at
the clinic. Thirteen minutes later,
government counsel “followed up with an email to respondent’s counsel,” in which
he or she asked to be notified of the timing of “tomorrow’s procedure.”
At 6:28 p.m., just two minutes after government counsel's e-mail, Doe’s counsel wrote back that “[a]s soon as we understand the clinic’s schedule tomorrow we will
let you know.”
It’s clear from this account in the petition that Doe’s
lawyer did make a representation to
keep the government informed of “the clinic’s schedule” on Wednesday the 25th—indeed,
Doe’s representatives had little choice but to do so, because such notification of the appointment time was necessary in order to inform the
shelter of when it had to allow Doe to be transported to the clinic. Significantly, Doe's counsel honored this commitment: Even before they confirmed the original doctor’s availability, they changed
Doe’s appointment time from 7:30 a.m. to 4:15 a.m. (just in case the doctor
would be able to be there then), and then at 9:30 p.m. on the 24th, they promptly
informed the government of that time change--a notice that raised the suspicions of the shelter personnel that perhaps the nature of the appointment might change, too.
The Solicitor General, however, claims that Doe's counsel made yet another guarantee, in response to government counsel's second request (the e-mail of 6:26 p.m.): At two places in his petition (pp.15, 19) he
characterizes her counsel as having “acquiesced” in the government’s additional
“request to keep government counsel informed of the timing of the ‘procedure.’” So
far as the petition reveals, however, Doe’s counsel did nothing
of the sort, and therefore the SG’s accusation of such “acquiescence” is itself a
misrepresentation to the Court. In stark
contrast to counsel’s commitment to
keep the government informed of the schedule of Doe’s appointments at the
clinic—a commitment they kept—counsel was careful not to agree to government counsel’s request to be notified of the
timing of the “[abortion] procedure.” [UPDATE: This differential treatment by Doe's counsel of the government's two distinct requests was not a case of indirection or too-clever-by-half lawyering. They acted in both instances to advance the interests of their client: Doe needed the government to know the timing of her appointments, so that the clinic would allow her to attend them (and so her lawyers shared that information), but she had no interest in telling the government of the nature of any counseling or medical procedures she might obtain at those appointments--indeed, she had good reason not to keep the government abreast of those details.]
As ACLU National Legal Director David Cole informed the Solicitor General in a letter on October 30 (in response to a letter from the SG), “[c]ounsel never agreed to provide the government information about the nature of Ms. Doe’s appointments or to give the government advance notice of the imminence of the abortion.”
As ACLU National Legal Director David Cole informed the Solicitor General in a letter on October 30 (in response to a letter from the SG), “[c]ounsel never agreed to provide the government information about the nature of Ms. Doe’s appointments or to give the government advance notice of the imminence of the abortion.”
As far as I can tell, Cole is absolutely correct, and the Solicitor General cites nothing to contradict it. Accordingly, the SG’s insinuations that Doe’s lawyers made “material misrepresentations,” and that they failed to provide government counsel with information they had promised to share, appear to be entirely without merit.
The Solicitor General also makes another argument, however: He suggests (p.28 of the
petition) that Doe’s counsel “at least arguably” had an ethical obligation to take affirmative steps “to notify the
government of th[e] incredibly significant development”—which Doe’s counsel
only themselves confirmed early on Wednesday morning the 25th--that Doe’s
original doctor was available to perform the abortion that morning. (The petition’s unspoken implication, best I can understand it, is that
such information was “material” because if Doe’s counsel would have shared it
with government counsel at, say, 2 a.m., the Solicitor General would then have
asked the Clerk of the Supreme Court to awaken Chief Justice Roberts to ask him to issue
an administrative stay of the injunction before the 4:15 a.m. appointment—a stay that the SG
could have sought, but declined to seek, any time after the court of appeals’ ruling at 3:00 p.m. the
previous afternoon.)
There does not appear to be any basis for this argument, either. To be sure, Doe’s lawyers were aware that as of early in the evening of the 24th, everyone involved
in the case, including the government lawyers, was working on the assumption
that the original doctor was not available, and that therefore the earliest Doe
could obtain an abortion under Texas law was 24 hours after receiving additional
counseling. (Of course, as noted above, after Doe's counsel informed the shelter and the government of the new 4:15 a.m. appointment time, at 9:30 Tuesday evening, the shelter employees began to suspect that something more might be afoot.) Moreover, it's also true that Doe's representatives confirmed on
early Wednesday morning that the doctor was
available to perform the abortion at the (already scheduled) 4:15 appointment.
At that point, however, why were they obligated to do anything more to facilitate the government’s efforts to further prevent Doe from exercising her constitutional right, well into her second trimester? [UPDATE: As Ian Wallace puts the point in a First Mondays podcast on the petition, counsel do not ordinarily have obligations to opposing counsel to make their lives as easy as possible.] Indeed, if anything, isn't it more likely that Doe’s counsel had an ethical obligation to their client not to take steps that had the potential to undermine her ability to exercise her constitutional right, at least in the absence of any affirmative legal obligation to make things easier for the government? [UPDATE: My colleague David Luban argues that it they may very well have had a duty to Doe not to inform the government: "The true ethical violation would be if Jane Doe’s counsel revealed confidential information to her adversary that might damage her."]
At that point, however, why were they obligated to do anything more to facilitate the government’s efforts to further prevent Doe from exercising her constitutional right, well into her second trimester? [UPDATE: As Ian Wallace puts the point in a First Mondays podcast on the petition, counsel do not ordinarily have obligations to opposing counsel to make their lives as easy as possible.] Indeed, if anything, isn't it more likely that Doe’s counsel had an ethical obligation to their client not to take steps that had the potential to undermine her ability to exercise her constitutional right, at least in the absence of any affirmative legal obligation to make things easier for the government? [UPDATE: My colleague David Luban argues that it they may very well have had a duty to Doe not to inform the government: "The true ethical violation would be if Jane Doe’s counsel revealed confidential information to her adversary that might damage her."]
If there were a plausible argument that Doe’s lawyers had an
obligation to inform the government upon learning of the change in
circumstances sometime after midnight on the 25th, one would expect the Solicitor General to offer some analysis, and some discussion of the relevant precedents and
authorities. Once again, however, the
SG fails to cite a single authority for the startling proposition that Doe’s attorneys
had any such legal or ethical obligation:
no Supreme Court Rule; no Model Rule of Professional Responsibility; no
rules of the Supreme Court Bar or of any state bar; no ABA standards; not even principles derived
from treatises on legal ethics.
The petition contains nothing of the sort.
* * * *
In light of all of this, it is not hard to imagine why
career lawyers in the Department of Justice, including in the Office of the
Solicitor General itself, might have refused to work on and/or sign this most irregular and
disturbing of petitions, for there are serious questions whether the brief meets the high standards that OSG and DOJ have long insisted upon and that the Court has come to expect from the federal government.
What’s more, the government concedes that the controversy is moot; therefore there was no need for expedition. And the government had three months or more to file its petition—plenty of time to hone
its arguments, add actual citations to and discussion of legal
authorities, engage with the opinions below, etc. Yet the SG nevertheless chose to file this very unorthodox petition just
nine days after the injunction ran its course.
Why the inordinate rush? Once
again, the brief itself does not address that question—perhaps because there is
no good answer.
[1] As the district court found (p. 70a), “[t]he
process of identifying, vetting, and approving sponsors is lengthy and complex,
involving multiple steps that can take weeks or months to complete. The process
typically involves completion and submission of an application, requirements for
extensive documentation of prior relationship to the minor and/or the minor’s
family, background checks, home visits, and multiple stages of administrative
review. The minor has no control over the sponsorship process, and ultimately
the decision whether to approve a particular sponsor rests with ORR.” In his petition, the SG represents (p. 6) that as of October 23, the day before Doe obtained her abortion, “the government believed that it had identified a potentially suitable sponsor, and . . . believed that the process [of transferring custody of Doe to that person] could be completed within a week.” That’s a fairly remarkable thing for the SG to emphasize, in light of the fact that it’s now two weeks later and HHS still has not transferred Doe to the custody of a sponsor.
[2] Later
in the petition, in the section about whether vacatur is appropriate (p. 22), the
SG does string-cite four precedents, including Planned Parenthood v. Casey, for the unremarkable proposition that “the
government generally need not facilitate abortions.”
[3] In the petition, the SG represents (p. 5)
that HHS would be required to “expend resources to monitor Ms. Doe’s health
after the abortion.” It is absurd, I
think, to suggest that such post-operative medical monitoring, which presumably is provided for all persons in the government’s custody or in the custody of its contractors,
whether their operation was for an abortion or not, is a form of “facilitating”
the abortion. In any event, the SG is
wrong on the facts, at least according to Judge Millett (p. 6a): “J.D.’s post-procedure medical care will be
administered by the contractor, not by government officials themselves.”
[4] To be clear: It is laudable that the Solicitor General—like dissenting Judges Kavanaugh and Griffith—declines to embrace Judge
Henderson’s “no due process rights” argument.
That argument elides the language of the due process clause itself (“nor
shall any person . . . be deprived of
life, liberty, or property, without due process of law”), and would lead to
some fairly radical and counterintuitive results, such as that the Constitution
would not prohibit the government from torturing undocumented aliens, or
forcing them to have abortions or other unwanted medical procedures. Judge Millett adds (pp.
16a-17a): “Detainees would have no right
to any medical treatment or protection from abuse by other detainees. Those with diabetes or suffering heart
attacks could be left to die while their governmental custodian watches.” See
also Justice Kagan’s sharp dismissal of such a government
argument at pp. 17-18 of the oral
argument transcript in Jennings
v. Rodriguez.