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Hello, this is Summary Judgment, a podcast offering easy-to-understand explanations of major court cases as they are decided.  I’m Alan Mygatt-Tauber.

This week we’re doing something a little different and discussing Hargan v. Garza, the Solicitor General’s petition for Supreme Court review of the case discussed in Episode 22.

Typically, the podcast focuses on cases that have been decided, but given the recent coverage of Garza v. Hargan, and the unusual position of the Solicitor General’s petition, I felt it was appropriate to examine it today, since it’s drawing a lot of attention in legal circles.  If you haven’t listened to Episode 22 yet, I highly recommend giving it a quick listen so you’ll be familiar with the underlying facts.

Following the D.C. Circuit’s decision in Garza v. Hargan, things moved very quickly.  The en banc D.C. Circuit issued its opinion at 3 pm on October 24.  By 4 pm, Jane Doe’s guardian ad litem had filed an emergency motion to amend the Temporary Restraining Order with the District Court, asking that the government contractor holding Jane Doe make her available immediately, including that day, in order to receive counseling so she could pursue her abortion.

Under Texas law, anyone seeking an abortion is required to be counseled about abortion and then wait at least 24 hours before undergoing the procedure.  While Jane Doe received counseling on October 19, Texas law requires that the counseling be performed by the same doctor who performs the procedure.  On October 24, all parties believed that the doctor who had counseled Jane Doe was unavailable to perform the procedure that week.  Thus, Jane Doe’s guardian ad litem was seeking to get her counseled as quickly as possible, so that the procedure could proceed the next day.

At approximately 5 p.m., the district court granted the motion and ordered the Government to make Jane Doe immediately available for counseling and an abortion.  After these changes, it was learned that the doctor was not available for counseling that evening.  An appointment was then scheduled for 7:30 a.m. on October 25th.  Thus, it was expected that Jane Doe would be counseled on the 25th and no procedure would occur until at least 7:30 a.m. October 26th.

The Government planned to seek an emergency stay from the Supreme Court sometime on October 25 and informed both the Court and Jane Doe’s counsel of this fact.  Sometime in the night, Jane Doe’s counsel learned that the doctor who had originally counseled her may have been available after all, and her appointment was rescheduled from 7:30 am to 4:15 a.m.  While Jane Doe’s counsel informed the Government that the time had changed, according to the Government, counsel neglected to indicate that the nature of the appointment had changed as well.  By 4:30 a.m., it was known that Jane Doe would be receiving an abortion and shelter staff informed the Government that it was occurring.  Shortly thereafter, Jane Doe received her abortion.

This set of facts was quite upsetting to the Solicitor General’s office and there is some dispute about what Jane Doe’s counsel agreed to in regards to informing the Government.  According to the petition for certiorari, however, at 6:13 p.m. on October 24, government counsel contacted Jane Doe’s counsel by phone, confirming she was being transported to the clinic and asking to be appraised of the timing of any appointments.  According to the Solicitor General, government counsel followed up with an e-mail to Jane Doe’s counsel, confirming that the shelter was transporting Ms. Doe to the clinic on October 24 and asking to be notified of the timing of “tomorrow’s procedure.”  Jane Doe’s counsel responded at 6:28 p.m. via email and assured Government counsel that “as soon as we understand the clinic’s schedule tomorrow, we will let you know.”

Forty five minutes later, Jane Doe’s counsel informed the Government that the doctor was unavailable that evening and that an appointment had been made for 7:30 a.m.  The Assistant United States Attorney was separately informed that the previous doctor was not available and that it was no longer feasible to see a doctor that evening.  According to the Government, the AUSA was also told that an abortion could not take place until October 26.

Later that night, Jane Doe’s counsel informed both shelter staff and the AUSA that the appointment had been moved to 4:15 a.m.  According to the Solicitor General, shelter staff suspected that the nature of the appointment may also have changed.  According to Jane Doe’s counsel, at some point late in the night of October 24, they became aware that the original doctor may have been available the next morning, although that did not become clear until early the next morning.

Jane Doe’s counsel disagreed with the Government’s assertion that they agreed to keep the Government informed as to the nature of the procedure.  Instead, they insisted that they only agreed to let the Government know WHEN the appointments were scheduled, as that information was necessary to secure Jane Doe’s arrival at the clinic.  This fundamental disagreement is at the heart of the Government’s position in its request for Supreme Court review.

After reciting the above facts, including acknowledging the dispute between the parties over what they agreed to, the Government turned to its argument as to why the Court should hear the case.

After some preliminary claims that the Government did not impose an undue burden on Jane Doe and arguing that it cannot be compelled to “facilitate” an abortion, the petition makes four arguments.  First, it notes that the portions of the Temporary Restraining Order actually addressed by the D.C. Court of appeals, are moot; 2) it argues that this justifies vacating the decision below; 3) it acknowledges that some of Jane Doe’s claims are still live, but that the lower court had not had an opportunity to rule on her request for class certification; and 4) it suggests the Court may want to consider disciplining Jane Doe’s attorneys for their actions.

The petition begins by acknowledging that, since Jane Doe received her abortion, those portions of the TRO issued by the District Court are now moot and thus not susceptible to judicial review.  It further notes that none of the exceptions to mootness would apply.

It then notes that the established practice of the Supreme Court, when a case is mooted before the Court can act, is to vacate the judgment below and remand with a direction to dismiss under what is known as the Munsingwear doctrine.  It argues that the United States was denied review by the actions of opposing counsel, that absent mootness, the Court was likely to step in; and that allowing the decision to stand would create legal consequences.  As to the first argument, the Government again reiterated that Jane Doe’s counsel acted when they knew the Government planned to seek a stay and failed to notify the Government of the abortion.  As to the second, the Government believes that the Court would have granted certiorari to review the D.C. Circuit’s disposition of Jane Doe’s Fifth Amendment claims.  As to the final argument, the Government believes that the D.C. Circuit’s ruling could impact Jane Doe’s remaining claims, including claims under Bivens, as well as to other putative class members, if the class were to be certified.

In a remarkable footnote, the Solicitor General acknowledges that the Court ordinarily declines to vacate a decision if the case would not have warranted review on the merits, but argues that even if such review were not otherwise warranted, the Court should still vacate the lower court’s decision because of the alleged bad acts of opposing counsel which prevented the Government from seeking review.

Turning to its third argument, the Government notes that since all of her claims were not mooted by the abortion, the appropriate remedy is to vacate the judgment of the lower court and remand with instructions to dismiss her claims insofar as they relate to the class.  Because the purported class representative lost her standing prior to the recognition of the class, she can no longer serve in that role.

Its final argument is the one generating so much attention.  The Solicitor General suggests that the Court should either take disciplinary action against Jane Doe’s attorneys itself, or refer them to their respective state bars for discipline, on the basis of their conduct in this case.  Because the Government believes that Jane Doe’s counsel had an obligation to inform it of her pending abortion, which it did not do, they should be disciplined.

There are several unusual features of the Solicitor General’s brief in this case, many of which have been remarked upon by others.  Perhaps the first, and most telling, is that no career employee of the Solicitor General’s Office appears on the brief.  It is four political appointees and two lawyers who do not work for the Office of the Solicitor General.  This is noteworthy when you consider that all of the Government’s briefs before the Supreme Court in the travel ban cases, as well as in other controversial cases such as Masterpiece Cakeshop, arguing for a religious exemption from anti-discrimination laws, were signed by career staff.

Next, the brief itself is remarkably light on case law citations.  Only 28 cases are cited in total and a quarter of them have to do with attorney discipline.  Another five are part of a string citation regarding application of the Munsingwear doctrine and that does not count the citations to Munsingwear itself.

Third, as noted, Footnote 4 of the brief, which calls for vacating a case even if the Court would not otherwise grant review is remarkable in that the Solicitor General cites to no authority for why its outcome makes sense.  Indeed, the citations in the footnote show the opposite, that normal practice is to only grant Munsingwear vacateur where the Court would otherwise hear the case.  The Government’s rationale for this unusual remedy is also nonsensical.  It argues that the case should be vacated, even if otherwise unreviewable, because the Government was denied the opportunity to seek review.  But if the case was unreviewable, it is hard to see what harm the Government suffered.  Only if the Court were prepared to address the case would the Government be harmed – and that is the default rule.

Fourth, as Professor Marty Lederman points out in an excellent blog post, the petition for certiorari is surprisingly sparse on reasons for granting certiorari.  It focuses on the proper remedy, Munsingwear vacatuer, without giving many reasons why the Court should hear the case in the first place.  This is hardly a matter of national import, like the travel ban cases, and there is no disagreement between the circuits.  Indeed, the petition relies on neither of the dissents written to the D.C. Circuit’s en banc opinion.  It barely even cites to them.

Furthermore, the Solicitor General greatly overstates what the D.C. Court opinion does.  The opinion quite pointedly does NOT make a ruling on Jane Doe’s Fifth Amendment claim.  As discussed in Episode 22, the Government assumed for the sake of argument that Jane Doe was entitled to seek an abortion.  Nothing in the D.C. Circuit’s opinion turned that assumption into anything more.  The Government is still free to argue that other members of the putative class do not have the right to an abortion, as Judge Henderson did in her dissent.  The ruling below was reviewing whether the District Court judge abused her discretion in denying a stay pending appeal.  It was not a ruling on any of the merits of the case.  Thus, it is hard to see what legal impacts the decision could have in the future; even regarding Jane Doe’s remaining claims.

Finally, it appears that many of the most remarkable claims, that Jane Doe’s counsel somehow misled the Solicitor General’s Office, are completely overblown.  The brief itself states that the Government’s initial request was to be apprised of the timing of any appointments, and that Jane Doe’s counsel merely agreed to let the Government know as soon as they understood the clinic’s schedule on October 25th.  The Government admits that Jane Doe’s lawyers informed them of her 7:30 a.m. appointment, and further admits that Jane Doe’s counsel let them know when the appointment was changed to 4:15 a.m.  Moreover, it acknowledges that shelter staff began to believe that the nature of the appointment had changed along with the time, to such an unusual hour.

Absent seeing the e-mails between the Government and Jane Doe’s attorneys, it is hard to determine exactly what was promised.  But as Professor Lederman points out, the ethical duty of her attorneys were more likely to favor helping Jane Doe exercise her rights, than helping the Government try yet again to thwart them.  However, knowing that Jane Doe’s lawyers were moving with all deliberate speed to secure her abortion, the Government should have been moving to secure a stay from the Supreme Court immediately after the TRO was amended at 5 p.m.  Certainly once they were informed that the appointment had moved up, they were on notice that something was going on.  Filing a last minute stay is quite familiar to those who work on death penalty cases, and the Court is no stranger to late nights and swift action.  To me, it seems like the Government was too slow and is trying to pass the blame to the ACLU.

And that’s our show.  Thanks so much for listening.  Links to the decision and other commentary are available in the shownotes to this episode at our website, summaryjudgmentpod.com.  You can reach out by e-mail at summaryjudgmentpod@gmail.com. You can like us on Facebook.  Or you can tweet thoughts and ideas to @podcastSJ.  Please remember to rate and review the podcast.  And if you like what you heard, please recommend the podcast to a friend!  See you next time for another Summary Judgment.

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