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J.D. v. Azar

United States Court of Appeals, District of Columbia Circuit

June 14, 2019

J.D., on behalf of herself and others similarly situated, et al., Appellees
Alex Michael Azar, II, Secretary, Health and Human Services, et al., Appellants

          Argued September 26, 2018

          Appeal from the United States District Court for the District of Columbia (No. 1:17-cv-02122).

          August E. Flentje, Special Counsel, U.S. Department of Justice, argued the cause for appellants.

          With him on the brief were Hashim M. Mooppan, Deputy Assistant Attorney General, and Michael C. Heyse, Attorney.

          Ken Paxton, Attorney General, Office of the Attorney General for the State of Texas, Scott A. Keller, Solicitor General, Kyle Hawkins, Assistant Solicitor General, David J. Hacker, Special Counsel for Civil Litigation, Leslie Rutledge, Attorney General, Office of the Attorney General for the State of Alabama, M. Stephen Pitt, General Counsel for the Governor of Kentucky, Jeff Landry, Attorney General, Office of the Attorney General for the State of Louisiana, Eric Schmitt, Attorney General, Office of the Attorney General for the State of Missouri, Doug Peterson, Attorney General, Office of the Attorney General for the State of Nebraska, Dave Yost, Attorney General, Office of the Attorney General for the State of Ohio, Mike Hunter, Attorney General, Office of the Attorney General for the State of Oklahoma, Alan Wilson, Attorney General, Office of the Attorney General for the State of South Carolina, and Patrick Morrisey, Attorney General, Office of the Attorney General for the State of West Virginia, were on the brief as amici curiae States of Texas, et al. in support of appellants.

          Brigitte Amiri argued the cause for appellees. With her on the brief were Meagan Burrows, Jennifer Dalven, Arthur B. Spitzer, Scott Michelman, Daniel Mach, and Melissa Goodman.

          Barbara D. Underwood, Solicitor General, Office of the Attorney General for the State of New York, Anisha S. Dasgupta, Deputy Solicitor General, Ester Murdukhayeva, Assistant Solicitor General, Brian E. Frosh, Attorney General, Office of the Attorney General for the State of Maryland, Maura Healey, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Gurbir S. Grewal, Attorney General, Office of the Attorney General for the State of New Jersey, Hector Balderas, Attorney General, Office of the Attorney General for the State of New Mexico, Joshua H. Stein, Attorney General, Office of the Attorney General for the State of North Carolina, Ellen F. Rosenblum, Attorney General, Office of the Attorney General for the State of Oregon, Josh Shapiro, Attorney General, Office of the Attorney General for the Commonwealth of Pennsylvania, Xavier Becerra, Attorney General, Office of the Attorney General for the State of California, William Tong, Attorney General, Office of the Attorney General for the State of Connecticut, Kathy Jennings, Attorney General, Office of the Attorney General for the State of Delaware, Russell A. Suzuki, Attorney General, Office of the Attorney General for the State of Hawaii, Kwame Raoul, Attorney General, Office of the Attorney General for the State of Illinois, Thomas J. Miller, Attorney General, Office of the Attorney General for the State of Iowa, Aaron Frey, Attorney General, Office of the Attorney General for the State of Maine, Robert W. Ferguson, Attorney General, Office of the Attorney General for the State of Washington, Karl A. Racine, Attorney General, Office of the Attorney General for the District of Columbia, Thomas J. Donovan, Jr., Attorney General, Office of the Attorney General for the State of Vermont, and Mark R. Herring, Attorney General, Office of the Attorney General for the Commonwealth of Virginia, were on the brief for amici curiae States of New York, et al. in support of appellees.

          Jennifer R. Cowan was on the brief for amici curiae The American College of Obstetricians and Gynecologists, et al. in support of plaintiffs-appellees.

          Joel Dodge and Jane Liu were on the brief for amici curiae Reproductive Rights, Health, and Justice Organizations and Allied Organizations in support of appellees.

          Roxann E. Henry was on the brief for amici curiae Immigrants Rights Advocates supporting plaintiffs-appellees.

          Before: Srinivasan and Wilkins, Circuit Judges, and Silberman, Senior Circuit Judge.


          PER CURIAM.

         Among the scores of persons who come to the United States each year without lawful immigration status, several thousand are "unaccompanied alien children." Unaccompanied alien children have no parent or legal guardian in the United States to care for them. They are thus committed to the custody of the federal government. At some point, an unaccompanied minor might be released to an approved sponsor (usually a relative) pending determination of her entitlement to stay in the United States. If no suitable sponsor exists, an unaccompanied minor might remain in the government's custody for an extended period.

         Certain unaccompanied alien children are pregnant when they arrive in federal custody, after what is often a hazardous journey. Though many carry their pregnancies to term, some desire to terminate their pregnancies. But in 2017, the government instituted a policy effectively barring any unaccompanied alien child in its custody from obtaining a pre-viability abortion. This case concerns the constitutionality of that new policy.

         The policy functions as an across-the-board ban on access to abortion. It does not matter if an unaccompanied minor meets all the requirements to obtain an abortion under the law of the state where she is held-including, for instance, demonstrating she is mature enough to decide on her own whether to terminate her pregnancy. Nor does it matter if she secures her own funding and transportation for the procedure. It does not even matter if her pregnancy results from rape. Regardless, the government denies her access to an abortion. And the government's newfound ban applies only to pregnant minors: anyone aged 18 (or older) in immigration custody is allowed to terminate her pregnancy. Minors alone, that is, must carry their pregnancies to term against their wishes.

         The claim of one minor in this case brings the policy's breadth and operation into stark relief. She had been raped in her country of origin. After her arrival here and her placement in government custody, she learned she was pregnant as a result of the rape. She repeatedly asked to obtain a pre-viability abortion, to no avail. She remained in government custody as an unaccompanied minor because there was no suitable sponsor to whom she could be released. Nor was there any viable prospect of her returning to her country of origin: indeed, she eventually received a grant of asylum (and lawful status here) due to her well-founded fear of persecution in her country of origin. Still, the government sought to compel this minor to carry her rape-induced pregnancy to term.

         She is one of the named plaintiffs who brought this challenge to the government's policy on behalf of a class of pregnant unaccompanied minors. The district court granted a preliminary injunction in favor of the plaintiffs, and the government now appeals. We initially agree with the district court that the case is not moot, and we find no abuse of discretion in the court's certification of a plaintiffs' class consisting of pregnant unaccompanied minors in the government's custody. On the merits, we sustain the district court's preliminary injunction in principal part.

         Under binding Supreme Court precedent, a person has a constitutional right to terminate her pregnancy before fetal viability, and the government cannot unduly burden her decision. The government accepts the applicability of that settled framework to unaccompanied alien children in its custody. Those controlling principles dictate affirming the district court's preliminary injunction against the government's blanket denial of access to abortion for unaccompanied minors. We are unanimous in rejecting the government's position that its denial of abortion access can be squared with Supreme Court precedent.

         We vacate and remand, though, a separate aspect of the district court's preliminary injunction, which bars disclosure to parents and others of unaccompanied minors' pregnancies and abortion decisions. That portion of the preliminary injunction, we conclude, warrants further explication to aid appellate review.



         Unaccompanied alien children (UACs) are minors in the United States with no lawful immigration status and no parents or legal guardians in the country able to care for them. See 6 U.S.C. § 279(g). According to the government's published information about UACs, "[u]naccompanied alien children have multiple inter-related reasons for undertaking the difficult journey of traveling to the United States, which may include rejoining family already in the United States, escaping violent communities or abusive family relationships in their home country, or finding work to support their families in the home country." U.S. Dep't of Health and Human Servs., Office of Refugee Resettlement, About Unaccompanied Alien Children's Services (June 15, 2018), orr/programs/ucs/about ("ORR, UAC Services"). The "age of these individuals, their separation from parents and relatives, and the hazardous journey they take make unaccompanied alien children especially vulnerable to human trafficking, exploitation[,] and abuse." Id.

         The Office of Refugee Resettlement (ORR), a program in the Department of Health and Human Services, bears responsibility for the "care and placement" of UACs. 6 U.S.C. § 279(b)(1)(A). Most UACs are referred to ORR by the Department of Homeland Security (DHS) after having been apprehended by immigration authorities at the border. See U.S. Dep't of Health & Human Servs., Office of Refugee Resettlement, Unaccompanied Alien Children Program Fact Sheet 1–2 (March 2019), ("ORR, UAC Fact Sheet"). Some unaccompanied minors who hail from countries contiguous with the United States may be immediately repatriated to their countries of origin by DHS. See 8 U.S.C. § 1232(a)(2). But the overwhelming majority of UACs are from non-contiguous countries and are therefore transferred to ORR custody. See id. § 1232(a)(2)(A), (a)(3), (b); see also U.S. Customs & Border Patrol, U.S. Border Patrol Southwest Border Apprehensions by Sector Fiscal Year 2019 (May 8, 2019), border-migration/usbp-sw-border-apprehensions.

         In fiscal year 2018, almost 50,000 unaccompanied minors were referred to ORR. ORR, UAC Fact Sheet 2. Federal law requires prompt placement of UACs "in the least restrictive setting that is in the best interest of the child." 8 U.S.C. § 1232(c)(2)(A). Pursuant to that requirement, ORR usually places unaccompanied minors in one of roughly 100 federally funded shelters across the country. ORR, UAC Fact Sheet 2.


         An unaccompanied minor ordinarily remains in ORR custody until one of five events occurs: (i) she is released to a sponsor in the United States; (ii) she turns 18, at which point she is transferred to the custody of DHS; (iii) she obtains lawful immigration status in the United States; (iv) she is permitted to voluntarily depart the country; or (v) she is removed from the country. According to recent government data, the average length of time an unaccompanied minor remains in ORR custody is approximately 90 days. Id. A minor might remain in ORR custody for substantially more (or less) time, however, depending on her individual circumstances.

         Most UACs are released to a sponsor at some point, and they remain with their sponsor while awaiting immigration hearings. See id. The search for a suitable sponsor begins as soon as an unaccompanied minor comes into ORR custody. See Office of Refugee Resettlement, ORR Guide: Children Entering the United States Unaccompanied § 2.2 (Jan. 30, 2015), entering-the-united-states-unaccompanied ("ORR Guide"). A sponsor might be an immediate relative or legal guardian, a distant relative, or an unrelated adult with a bona fide social relationship with the minor or her family. Id. §§ 2.2.1, 2.2.4.

         "All potential sponsors for UAC[s] are required to undergo background checks and complete a sponsor assessment process that identifies risk factors and other potential safety concerns." ORR, UAC Fact Sheet 2. Accordingly, the "process for the safe and timely release of an unaccompanied alien child from ORR custody" to a sponsor "involves many steps." ORR Guide § 2.1. Those steps include: "the identification of sponsors; the submission by a sponsor of the application for release and supporting documentation; the evaluation of the suitability of the sponsor, including verification of the sponsor's identity and relationship to the child, background checks, and in some cases home studies; and planning for post-release." Id. In some cases, ORR is never able to identify an appropriate sponsor.

         Whether or not released to a sponsor, a UAC may be able to attain lawful immigration status in the United States. Any unaccompanied minor who gains lawful immigration status while in ORR custody must be released into an alternative placement. Id. § 2.8.6. According to ORR, "[m]any unaccompanied alien children meet conditions that make them eligible for legal relief to remain in the United States." ORR, UAC Services.

         Those forms of relief include but are "not limited to asylum; special visas for children who have been abused, neglected, or abandoned by the parents or guardian; special visas for victims of severe forms of trafficking and other types of crime; or adjustment of status for those who have a legal resident or citizen family member." Id. The first of those forms of immigration relief, asylum, entitles a person who demonstrates a well-founded fear of persecution in her country of origin to remain in the United States and, eventually, to obtain lawful permanent residence. See 8 U.S.C. §§ 1101(a)(42)(A), 1158. The other described types of immigration relief include Special Immigrant Juvenile Status (through which juveniles subjected to abuse or neglect can attain lawful permanent residence), see id. §§ 1101(a)(27)(J), 1153(b)(4), as well as T or U nonimmigrant visas for victims of qualifying crimes or human trafficking, see id. §§ 1101(a)(15)(T)–(U), 1184(o)–(p).

         Barring a path to lawful status in the United States, a UAC can also apply for "voluntary departure" to her country of origin. "Voluntary departure is a discretionary form of relief that allows certain favored aliens . . . to leave the country willingly" rather than undergo removal. Dada v. Mukasey, 554 U.S. 1, 8 (2008). Although a grant of voluntary departure does not entitle an alien to remain in the United States, it is a form of immigration relief because it relieves her of some of the penalties that would attach if she were removed (including, for example, the five-year bar on reentry). Id. at 11. The grant of voluntary departure is at the government's discretion, see 8 U.S.C. § 1229c(a)(1), and is contingent on the withdrawal of claims to other forms of relief, a concession of removability, and a waiver of the right to appeal, see 8 C.F.R. § 1240.26.

         Finally, unaccompanied minors in ORR custody or released to sponsors are subject to removal from the United States. See 8 U.S.C. § 1229a. In that respect, though, they are entitled to greater procedural protections than either the subset of minors from contiguous countries subject to immediate repatriation or adults who can be summarily removed. See, e.g., 8 U.S.C. §§ 1182(a)(6)(C), (a)(7), 1225(b)(1)(A)(i), (iii). For example, removal cases for UACs must be adjudicated by immigration judges, see id. § 1229a, and the government must ensure that unaccompanied minors have the assistance of counsel in removal proceedings "to the greatest extent practicable," id. § 1232(c)(5).


         Roughly thirty percent of the unaccompanied minors to arrive in the United States in recent years have been female. See U.S. Dep't of Health & Human Servs., Office of Refugee Resettlement, Facts and Data (Feb. 13, 2019), The healthcare services afforded to them while in ORR custody include "family planning services, including pregnancy tests and comprehensive information about and access to medical reproductive health services and emergency contraception." ORR Guide § 3.4.

         Each year, ORR has several hundred pregnant unaccompanied minors in its custody. See Email from Kate Wolff to Bobbie Gregg (Feb. 24, 2016), Mot. for Class Certification Ex. B at 2 (filed Oct. 18, 2017), ECF No. 18-5 (726 pregnancies in 2014 and an estimated 450 pregnancies in 2015). At least 21 shelters, in states such as Texas, Arizona, Virginia, and Washington, have housed pregnant UACs. See Mot. for Class Cert. Ex. C (filed Oct. 18, 2017), ECF Nos. 19-1 to 19-4. In fiscal year 2017, the only year for which there is data in the record concerning abortion requests, 18 pregnant unaccompanied minors in ORR custody requested an abortion.

         In March 2017, ORR announced that shelters "are prohibited from taking any action that facilitates an abortion without direction and approval from the Director of ORR." Memorandum from Kenneth Tota, Acting Dir., Office of Refugee Resettlement, to ORR Staff (Mar. 4, 2017), Mot. for Prelim. Inj. Ex. A (filed Oct. 14, 2017), ECF. No. 5-4. Previously, there had been no need for a shelter to secure the Director's approval before assisting a minor with accessing abortion services (unless federal funds were to be used directly for the procedure). A shelter thus could assist a minor if an abortion would be consistent with the relevant state's laws. If a shelter objected to permitting a minor abortion access on religious or other grounds, ORR would transfer her to a shelter willing to provide access.

         Under the new policy's requirement to secure the ORR Director's approval before permitting abortion access, Scott Lloyd, who became Director in March 2017, denied every abortion request presented to him during his tenure. He refused every request regardless of the circumstances, including when the pregnancy resulted from rape. See Dep. of Scott Lloyd, Dir., Office of Refugee Resettlement, at 64:19–21, 153:9–14 (Dec. 18, 2017), G.C.A. 207, 229; Dep. of Jonathan White, Deputy Dir. for Children's Programs, at 17:20–18:3 (Dec. 19, 2017), P.A. 33–34. The requirement to obtain the Director's approval thus functions as a blanket ban.

         The ban, though, applies only to those unaccompanied minors who are in ORR custody (including those at ORR grantee shelters). A minor who is released to a sponsor, or who obtains lawful immigration status, thus is no longer subject to the abortion bar. The same is true of unaccompanied minors who turn 18 and are then transferred to DHS custody. DHS, unlike ORR, allows pregnant women in its custody to obtain abortions. See Immigration & Customs Enforcement Guidelines, Detention Standard 4.4, Medical Care (Women) (Dec. 2016), standards/2011/4-4.pdf.


         This class action was brought in the name of four plaintiffs who were unaccompanied minors in ORR custody and whose requests for an abortion were denied under the new policy.


         Jane Doe was 17 years old when apprehended at the border and remitted to the custody of an ORR shelter in Texas. After a medical examination showed she was pregnant, Doe requested access to an abortion. Texas law requires parental consent or a judicial bypass, and Doe secured a judicial bypass in Texas court so that she could decide on her own to terminate her pregnancy. ORR notified Doe's mother of her pregnancy and her request for an abortion, despite indications that doing so could expose her to a risk of serious abuse by her family.

         Although Doe identified two potential sponsors to ORR, neither was determined to be suitable or willing to sponsor her. At the time, Doe was seeking a determination in state court that would have permitted her to apply for Special Immigrant Juvenile Status-which, as noted, is a form of immigration relief available to children who are victims of abuse. ORR emails stated that Doe had also applied for voluntary departure but that her application was "not likely to be far [along] at all" at the time. Email from Jonathan White, Deputy Dir. for Children's Programs, to Scott Lloyd, Dir., Office of Refugee Resettlement (Sept. 22, 2017), P.A. 26.

         Doe obtained private funding for the abortion procedure and arranged her own transportation to and from the provider. But even though Doe secured her own funding and transportation, and even though she had satisfied the conditions under Texas law to obtain an abortion, ORR, per Director Lloyd's instruction, refused to authorize her release from the shelter for the procedure.

         On October 14, 2017, a month after she initially requested an abortion, Doe brought the present suit challenging ORR's abortion policies on behalf of herself and a class of similarly situated individuals. On October 18, the district court granted Doe a temporary restraining order. The order enjoined the government from preventing her transport to an abortion facility or from otherwise interfering with her decision to terminate her pregnancy. A panel of this Court vacated that decision on October 20, see Garza v. Hargan, No. 17-5236, 2017 WL 9854552 (D.C. Cir. Oct. 20, 2017), but four days later, this Court, sitting en banc, vacated the panel order and reinstated the district court's temporary restraining order, see Garza v. Hargan, 874 F.3d 735 (D.C. Cir. 2017).

         Doe obtained an abortion the next day, October 25. See Azar v. Garza, 138 S.Ct. 1790, 1792 (2018) (per curiam). At the time, she was estimated to be at least 14 weeks pregnant. Almost three months later, on January 15, 2018, just before Doe turned 18 years old, ORR released her to a sponsor. On June 1, 2018, the Supreme Court vacated our en banc order because Doe's claim had become moot. Id. at 1792–93; see United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950).


         A second named plaintiff, Jane Poe, was 17 years old and pregnant when apprehended at the border in November 2017. During her initial health screening, Poe disclosed that she had been raped by a stranger in her country of origin. A subsequent medical examination revealed that her pregnancy was the result of the rape. Poe repeatedly requested an abortion even though her mother (in her country of origin) and a potential sponsor (in the United States) threatened to beat her if she attempted to terminate her pregnancy.

         ORR's Deputy Director for Children's Programs wrote a memorandum to Director Lloyd in early December 2017, explaining the circumstances surrounding Poe's request for an abortion. The Deputy Director reported that Poe "would like an abortion on the grounds of being raped." Memorandum from Jonathan White, Deputy Dir. for Children's Programs, to Scott Lloyd, Dir., Office of Refugee Resettlement (Dec. 6, 2017), P.A. 16. The Deputy Director further explained that Poe "does not have any viable sponsors" to whom she could be released, and that her pregnancy had reached 21 weeks, such that the state-law deadline for an abortion was fast approaching. Id. at 16–17. As a result, the Deputy Director urged, it was "critical that a decision to approve or deny her request" be made "as soon as possible." Id. at 17.

         Ten days later, Director Lloyd denied Poe's request for permission to obtain an abortion. Id. at 18. The next day, Lloyd issued a file memorandum documenting his decision. He noted that Poe had become pregnant as the result of rape but explained that ORR provides refuge "to all the minors in our care, including their unborn children." Note to File from Scott Lloyd, Dir., Office of Refugee Resettlement (Dec. 17, 2017), P.A. 20, 23. "In this request," Lloyd determined, "we are being asked to participate in killing a human being in our care," and "we ought to choose [to] protect life rather than to destroy it." Id. at 23.

         One day later, the district court granted Poe's motion for a temporary restraining order over the government's opposition. Garza v. Hargan, No. 17-cv-02122, 2017 WL 6462270, at *1 (D.D.C. Dec. 18, 2017). Poe then obtained an abortion.

         As of July 30, 2018, Poe had not been released to a sponsor and remained in ORR custody. On December 13, 2018, however, counsel informed the court that Poe had been granted asylum and was no longer in ORR custody.


         The final two named plaintiffs are Jane Roe and Jane Moe. Unlike Jane Doe and Jane Poe, each of whom received a temporary restraining order and obtained an abortion while still in ORR custody, Jane Roe and Jane Moe were released from ORR custody before terminating their pregnancies.

         In Roe's case, she learned of her pregnancy in November 2017, while in ORR custody. She claims, and the government believed, she was 17 at the time. She requested an abortion from her shelter but was not allowed access to an abortion provider. On December 18, the district court granted Roe a temporary restraining order. See id. at *1. The government filed an appeal but soon dismissed it upon discovering information allegedly indicating that Roe in fact was not a minor and thus not properly in ORR custody. Roe was then transferred to the custody of DHS, which, as noted, allows immigration detainees to obtain an abortion.

         As for Jane Moe, around late December 2017, she informed her ORR shelter that she desired to terminate her pregnancy. On January 11, she joined the suit and filed an application for a temporary restraining order, claiming that the government had already delayed her abortion access by two weeks. But three days later, Moe was released to a sponsor.


         While this class action is brought in the name of four named plaintiffs, only two of them, Doe and Roe, serve as class representatives. They moved to certify a class of "pregnant [UACs] who are or will be in the legal custody of the federal government." Mot. for Class Certification at 1 (filed Oct. 18, 2017), ECF No. 18. They sought a preliminary injunction, claiming that ORR maintains a blanket ban on abortion access, a parental-notification-and-consent requirement, and compelled religious counseling, in violation of the Fifth and First Amendments.


         On March 30, 2018, the district court certified a class of plaintiffs consisting of "all pregnant, unaccompanied immigrant minor children (UCs) who are or will be in the legal custody of the federal government." Garza v. Hargan, 304 F.Supp.3d 145, 150 (D.D.C. 2018). The court certified the class under Federal Rule of Civil Procedure 23(b)(2), which applies when a defendant acts on grounds that apply generally to the class, such that an injunction (or declaratory relief) is appropriate as to the entire class.

         On the merits, the court granted a preliminary injunction to the class. The court explained that "the government 'may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.'" Id. at 162 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 879 (1992) (plurality)). That "basic proscription," the court determined, "controls the outcome in this case." Id.

         ORR's policies, the court observed, "apply to all pregnant [UACs] in its custody-even those whose pregnancy is the result of rape." Id. at 161. Under those policies, the court explained, "ORR effectively retains an absolute veto over the reproductive decision of any young woman in its custody, a veto that is exercised routinely to bar [UACs] from obtaining abortions, despite the fact that no public funds are expended to procure the procedures and notwithstanding the [UAC's] own wishes or intentions." Id. at 162.

         "In other words," the court concluded, "ORR's absolute veto nullifies a [UAC's] right to make her own reproductive choices." Id. And "ORR's policy vests the power to decide the future of a [UAC's] pregnancy in one man: Director Lloyd," whose "ultimate decision is substantially controlled by-if not entirely based on-his ideological opposition to abortion." Id. at 163.


         The district court initially entered its preliminary injunction on March 30, 2018, and then clarified it on April 16, 2018. The injunction contains two relevant provisions.

         First, it enjoins the government from "interfering with or obstructing any class member's access to . . . an abortion" or "other pregnancy-related care" (and also enjoins any interference with access to a judicial bypass or abortion counseling). Prelim. Inj. Order (Apr. 16, 2018), G.C.A. 275. That access mandate pertains solely to pre-viability abortions. See Order Granting in Part and Denying in Part Motion to Stay (June 4, 2018) (concurring statement of Srinivasan, J.).

         Second, the court enjoined the government from revealing, or forcing class members to reveal, the fact of their pregnancies or their abortion decisions to anyone. (Although the government filed a notice of appeal only as to the original March 30, 2018, order, the April 16 order merely clarified the prior order in relevant respects, such that the March 30 order as clarified on April 16 is properly before us. See Fed. R. App. P. 4(a)(4)(B)(ii); cf. Sorensen v. City of New York, 413 F.3d 292, 296 & n.2 (2d Cir. 2005).)

         Those two aspects of the preliminary injunction-the access mandate and the disclosure bar-have been appealed by the government. The government also appeals the district court's grant of class certification. The government, though, does not appeal other provisions of the preliminary injunction that bar retaliation against class members or shelters for abortion-related decisions and actions.


         The government devotes a majority of its principal brief to arguing two threshold issues before addressing the merits of the district court's preliminary injunction: (i) mootness, and (ii) class certification. We first take up the government's mootness challenge, which we reject. The class's claims persist here because of the "inherently transitory" exception.

         "Mootness is a pragmatic doctrine meant to limit 'judicial power to disputes capable of judicial resolution.'" DL v. District of Columbia, 860 F.3d 713, 722 (D.C. Cir. 2017) (quoting U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 396 (1980)). The mootness inquiry is a "claim-specific analysis." Daingerfield Island Protective Soc'y v. Lujan, 920 F.2d 32, 37 (D.C. Cir. 1990); accord Coal. of Airline Pilots Ass'ns v. FAA, 370 F.3d 1184, 1189–90 (D.C. Cir. 2004). The party seeking jurisdictional dismissal bears the "initial 'heavy burden' of establishing mootness," but the "opposing party bears the burden of proving an exception applies." Honeywell Int'l, Inc. v. Nuclear Regulatory Comm'n, 628 F.3d 568, 576 (D.C. Cir. 2010) (quoting Motor & Equip. Mfrs. Ass'n v. Nichols, 142 F.3d 449, 459 (D.C. Cir. 1998)). The government challenges all the claims, including those on which the district court declined to issue preliminary relief.

         "If an intervening circumstance deprives the plaintiff of a 'personal stake in the outcome of the lawsuit,' at any point during litigation," the district court must dismiss her individual claim as moot. Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 72 (2013) (quoting Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477–78 (1990)). For every claim, at least one named plaintiff must keep her individual dispute live until certification, or else the class action based on that claim generally becomes moot. United States v. Sanchez-Gomez, 138 S.Ct. 1532, 1538 (2018); see also Cruz v. Am. Airlines, Inc., 356 F.3d 320, 331 (D.C. Cir. 2004). Here, the district court selected Doe and Roe as representatives. (Although the selection was not revealed until the April 16, 2018, order, we exercise pendent jurisdiction to review the certification portion, see Wagner v. Taylor, 836 F.2d 578, 583 (D.C. Cir. 1987).)

         The government has met its burden regarding the abortion-access claims. The Supreme Court held that Doe's claim "became moot after" her October 25, 2017, abortion. Garza, 138 S.Ct. at 1793. Roe's claim became moot in late December 2017, when she left ORR custody and was no longer subject to ORR's policies.

         The First Amendment claims also are moot. The minors have presented two theories: that (i) ORR compels them to speak with third parties about their abortion decisions, and that (ii) ORR commits proselytism by forcing them to meet with certain religiously affiliated counselors. But those claims extinguished when Doe and Roe left ORR custody on January 15, 2018, and on or around December 19, 2017, respectively.

         In the pleadings, the minors raised two types of Fifth Amendment disclosure claims: one predicated on their right to "informational privacy," the other on their right to choose whether to terminate the pregnancy. Having obtained their abortions and exited ORR custody, respectively, Doe and Roe no longer have the latter claims. As for informational privacy, we need not decide whether the claims are moot, because they, like the others, would satisfy the "inherently transitory" mootness exception.

         The Supreme Court sometimes has permitted the lower courts to "relate [a] certification motion back" to a date when the individual claims were live. Genesis Healthcare, 569 U.S. at 71 & n.2. A properly certified class is deemed to have attained on that date a "legal status separate from the interest asserted" by the representatives. Sosna v. Iowa, 419 U.S. 393, 399 (1975). Because the class possesses a concrete legal interest, the mootness of individual claims does not affect the ability of representatives to litigate a controversy between the defendants and absent class members. Id. at 402.

         The relation-back date depends on the case. For instance, "where a certification motion is denied and a named plaintiff's claim subsequently becomes moot, an appellate reversal of the certification decision may relate back to the time of the denial." Genesis Healthcare, 569 U.S. at 71 n.2; accord DL, 860 F.3d at 721–23. Relevant here, "[w]here a named plaintiff's claim is 'inherently transitory,' and becomes moot prior to certification, a motion for certification may 'relate back' to the filing of the complaint." Genesis Healthcare, 569 U.S. at 71 n.2 (quoting Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51– 52 (1991)). We applied the "inherently transitory" doctrine once before, but we did not elaborate on its contours. See Basel v. Knebel, 551 F.2d 395, 397 n.1 (D.C. Cir. 1977) (per curiam). We do so now.

         The Supreme Court crafted the exception in injunctive class actions challenging criminal and immigration detention procedures. In Gerstein v. Pugh, 420 U.S. 103 (1975), the first case to apply it, four individuals who were arrested without warrants in Florida sued state officials and asserted a federal constitutional right to a judicial probable-cause hearing as a prerequisite to pretrial detention, id. at 105–07. The Supreme Court noted that "the record d[id] not indicate whether any of [the four plaintiffs] w[as] still in custody awaiting trial when the District Court certified the class." Id. at 110 n.11. Because the individuals sought a hearing for pretrial detention, their claims necessarily became moot when the detention ended. See id. Nonetheless, the Court let the class action survive. It reasoned:

The length of pretrial custody cannot be ascertained at the outset, and it may be ended at any time by release on recognizance, dismissal of the charges, or a guilty plea, as well as by acquittal or conviction after trial. It is by no means certain that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify the class. Moreover, in this case the constant existence of a class of persons suffering the deprivation is certain. The attorney representing the named respondents is a public defender, and we can safely assume that he has other clients with a continuing live interest in the case.


         The Supreme Court applied Gerstein's holding in three other cases. See Nielsen v. Preap, 139 S.Ct. 954, 963 (2019) (plurality); McLaughlin, 500 U.S. at 50–52; Swisher v. Brady, 438 U.S. 204, 213 n.11 (1978). In Brady, the Supreme Court considered the Double Jeopardy implications of a state regime where juveniles in criminal proceedings had been found not guilty in proposed rulings by so-called "masters" but were convicted after prosecutors filed exceptions and juvenile court judges reversed the masters' proposals. 438 U.S. at 206–13. Nine juveniles filed the injunctive class action in November 1974, asserting that a state procedural rule creating the regime was unconstitutional. Id. at 206, 209. The Supreme Court noted that, prior to certification, the injunctive claims for the juveniles became moot because the State either had withdrawn its objections (thus removing the minor from alleged jeopardy) or secured a ruling from a juvenile court judge (thus completing the allegedly unconstitutional second prosecution). Brady, 438 U.S. at 213 n.11. Still, the Court emphasized the "rapidity of judicial review of exceptions" for all class members and allowed the class's claims. Id. The Court also highlighted that expired individual claims need not end a class action if mootness occurs before the district judge "can reasonably be expected to rule" on certification. Id. (quoting Sosna, 419 U.S. at 402 n.11).

         In McLaughlin, the Supreme Court applied Gerstein in a factually similar context. The Court in Gerstein recognized the constitutional requirement for a judicial hearing and noted that it must occur "promptly" after the warrantless arrest. Gerstein¸ 420 U.S. at 125. Pretrial detainees brought an injunctive class action challenging the promptness of hearings taking place in the County of Riverside, California. McLaughlin, 500 U.S. at 47–48. The Supreme Court noted that the individual claims had become moot before certification because the named plaintiffs either "received probable cause determinations or were released." McLaughlin, 500 U.S. at 51. But like in Gerstein, some 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." Id. (quoting Geraghty, 445 U.S. at 399). The Court concluded that lower courts may invoke "the 'relation back' doctrine" to "preserve the merits" of such claims "for judicial resolution." Id.

         Most recently, in Preap, the Supreme Court considered the scope of an immigration detention provision in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-128, div. C, 110 Stat. 3009-546 (codified as amended in scattered sections of Titles 8, 18, and 28 of the U.S. Code). With exceptions not relevant here, the IIRIRA provision mandates the detention without bail of immigrants who had been convicted of certain crimes, who were later arrested upon belief of their inadmissibility or deportability, and who are awaiting the conclusion of removal proceedings. See 8 U.S.C. § 1226(c). In two injunctive class actions, immigrant plaintiffs who were detained under the provision sought a bail hearing, which federal regulations ordinarily would provide. See Preap, 139 S.Ct. at 959–60; id. at 975 (Thomas, J., concurring in part and concurring in the judgment); see also 8 C.F.R. §§ 236.1(c)(8), (d)(1), 1003.19, 1236.1(d)(1).

         "[B]y the time of class certification[,] the named plaintiffs had obtained either cancellation of removal or bond hearings." Preap, 139 S.Ct. at 963 (plurality). The government thus argued that the class actions were moot. And two justices found that the "inherently transitory" exception does not apply because the immigrants "are held, on average, for one year, and sometimes longer" and the trial judges could rule on certification within such a time frame. Id. at 976 (Thomas, J., concurring in part and concurring in the judgment) (citing Jennings v. Rodriguez, 136 S.Ct. 830, 860 (2018) (Breyer, J., dissenting)).

         But the plurality disagreed with the government and those two justices. Id. at 963 (plurality). Unmoved by the one-year average length of time, the plurality found detention to be sufficiently "transitory" because it "ends as soon as the decision on removal is made." Id. (plurality). As for the cancellation of removal and bond hearings, the plurality found irrelevant the fact that the "named plaintiffs obtained some relief before class certification." Id. (plurality).

         Gerstein, Brady, McLaughlin and Preap confirm that the relation-back doctrine requires us to analyze the "practicalities and prudential considerations" of the class action under review. Geraghty, 445 U.S. at 404 n.11; see also Basel, 551 F.2d at 397 n.1 ("[W]hether the certification can be said to 'relate back' to the filing of the complaint may depend upon the circumstances of the particular case and especially the reality of the claim that otherwise the issue would evade review."); cf. DL, 860 F.3d at 722 (noting the "pragmatic" nature of the mootness doctrine). None of the cases purports to outline all factors relevant to the inquiry. Still, two requirements emerge.

         First, as the exception's moniker implies, we must consider the extent to which the individual claims are "inherently transitory." As Gerstein puts it, the district court must determine whether it is "by no means certain" that an individual claim will persist long enough for it to adjudicate class certification. 420 U.S. at 110 n.11 ("It is by no means certain that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify the class."); accord Sanchez-Gomez, 138 S.Ct. at 1538.

         Because the mootness inquiry depends on whether the claim is potentially fleeting, we must determine what qualifies as too brief. Once the district court deems a Rule 23 class valid, the subsequent mootness of individual claims does not terminate litigation. See Sosna, 419 U.S. at 399, 402; see also Genesis Healthcare, 569 U.S. at 75. The "inherently transitory" exception serves only to salvage claims that will, or at least might, not survive until certification. Thus, we must consider whether "mootness problems" might arise to end the claim "before the district court can reasonably be expected to rule on a certification motion." Brady, 438 U.S. at 213 n.11 (quoting Sosna, 419 U.S. at 402 n.11).

         The inquiry may rely on reasoned supposition. In Gerstein, the Supreme Court expressed concerns that release, dismissal of charges, a plea, or a verdict "may" end the pretrial detention claims before a class-certification decision. Id. The Court never attempted to figure out which-or even whether- these events in fact occurred to a class member; the record did not reveal such details. See id. The Court instead hypothesized events that "may" occur, based on the "practicalities" of the litigation at issue, Geraghty, 445 U.S. at 404 n.11, and its understanding of how the criminal justice system works in general.

         Second, the record must sufficiently assure us that some class members will retain a live claim throughout the proceedings. See Gerstein, 420 U.S. at 110 n.11 ("Moreover, in this case the constant existence of a class of persons suffering the deprivation is certain."); see also Sanchez-Gomez, 138 S.Ct. at 1538; Genesis Healthcare, 569 U.S. at 76. Even in the class-action context, a "live controversy" must always exist throughout the litigation. See Sosna, 419 U.S. at 402. Indeed, the Supreme Court in Gerstein noted that some class members-to wit, absent clients of the plaintiffs' counsel-had a "continuing live interest" while the case was before it. 420 U.S. at 110 n.11.

         In sum, the "inherently transitory" exception to mootness requires us to determine (i) whether the individual claim might end before the district court has a reasonable amount of time to decide class certification, and (ii) whether some class members will retain a live claim at every stage of litigation. An affirmative answer to both questions ordinarily will suffice to trigger relation back.

         Doe and Roe have demonstrated that the exception applies in this case. The claims at issue likely will, or at least might, end quickly. The average length of custody for a minor was 41 days in fiscal year 2017, when the initial complaint was filed, and was roughly 90 days by the beginning of fiscal year 2019. Of course, that is just an average, and certain events could end the claims earlier. A minor under ORR custody may turn 18 years old or successfully seek voluntary departure to her country of origin. The government acknowledges that it may find a sponsor at any point and that it may obviate the claim by finding one swiftly. See Oral Arg. Recording 1:16:13–36. Such is the case for Moe, for whom the government located a sponsor three days after she had joined the case. Thus, as the district court noted, "the length of time that pregnant [minors] will remain in ORR custody is uncertain and unpredictable." Garza, 304 F.Supp.3d at 159.

         The government responds that, for any individual claim, the district court will know in advance the viability date and the relevant abortion deadline for the state where ORR keeps the minor, and that the motion may be decided ahead of those dates. Gov't Br. 24–26; Gov't Reply Br. 5–6. The argument errs in ignoring sponsorship and voluntary departure as potential terminating events. And even if viability were the appropriate time frame for the mootness analysis, we would reject the government's argument. Just as the one-year immigration detention in Preap would end too soon, so too would a full term of pregnancy, let alone the remaining weeks for obtaining a pre-viability abortion after a minor becomes aware of her pregnancy. Furthermore, the Court in Gerstein underscored that a defendant's pretrial detention could come to an end (thus mooting the claim) "upon acquittal or conviction after trial," which might not occur for many months. See 420 U.S. at 110 n.11.

         The government also stresses that Doe's and Roe's claims remained live long enough for the district court to decide their merits through temporary restraining order applications. Gov't Br. 25–26. The district court "necessarily ha[d] time to take action" on the certification request because it had enough time to decide the merits. Gov't Reply Br. 5–6. No case law supports this argument. We reject its upshot as unworkable and inequitable: that some class actions would evaporate because the irreparable harm to individual plaintiffs was clear enough to warrant immediate relief but the class definition issue was complex enough to require discovery. Relatedly, we fear that accepting the argument would vitiate the mootness exception. Courts may issue temporary relief in virtually every case; a judge sometimes will sign a restraining order on the day the plaintiff files her complaint. Indeed, there would have been no need to apply the exception in Gerstein or McLaughlin, because the lower courts could have granted interim relief releasing detainees from pretrial custody. Accordingly, we find irrelevant the issuance of emergency relief in this case. See Preap, 139 S.Ct. at 963 (plurality) ("[T]he fact that the named plaintiffs obtained some relief before class certification does not moot their claims.").

         As for the second question, the district court found-and the government does not dispute-that some class members will have live claims at every stage of litigation. See Garza, 304 F.Supp.3d at 160 (noting that "the claims of numerous potential class members remain unaddressed"). ORR continues to keep pregnant minors, and the plaintiffs represent that about a dozen expressed an interest in abortion or related information ...

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