United States Court of Appeals, District of Columbia Circuit
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
September 26, 2018
from the United States District Court for the District of
Columbia (No. 1:17-cv-02122).
E. Flentje, Special Counsel, U.S. Department of Justice,
argued the cause for appellants.
him on the brief were Hashim M. Mooppan, Deputy Assistant
Attorney General, and Michael C. Heyse, Attorney.
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.
Dodge and Jane Liu were on the brief for amici curiae
Reproductive Rights, Health, and Justice Organizations and
Allied Organizations in support of appellees.
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.
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.
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
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.
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.
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
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.
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
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),
https://www.acf.hhs.gov/ 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.
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), https://www.cbp.gov/newsroom/stats/sw-
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
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
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),
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.
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.
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.
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. §§
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.
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).
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),
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.
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.
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.
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.
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), https://www.ice.gov/doclib/detention-
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.
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.
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),
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.
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).
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).
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.).
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).)
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.
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.
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
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).)
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.
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.
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.
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.
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.
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
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.
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).
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.
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).
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)).
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).
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
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
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
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
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
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.
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.
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.
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
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 ...