Case 1:17-cv-02122-TSC Document 55 Filed 11/27/17 Page 1 of 6

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad
litem to unaccompanied minor J.D., on
behalf of J.D. and others similarly
situated,
Plaintiff,
v.
ERIC D. HARGAN, et al.,
Defendants.

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Civil Action No. 17-cv-02122 (TSC)

DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION FOR
RECONSIDERATION OF THE COURT’S OCTOBER 30, 2017 ORDER
Plaintiff’s Opposition to Defendants’ Motion for Reconsideration is without merit for
three independent reasons.

First, Plaintiff misstates Defendants’ consent policy.

Second,

Plaintiff Jane Doe’s right to non-disclosure of her abortion is limited by Defendants’ important
and legitimate interest in properly executing its statutory custodial duties. Ms. Doe disclosed her
desire to obtain an abortion (and the obtaining of the abortion) to the Office of Refugee
Resettlement (“ORR”), which operates in loco parentis in this instance on Ms. Doe’s behalf.
Third, Plaintiff’s contentions about Defendants’ motivations are unsupported and incorrect.
Defendants respectfully resubmit their request for the Court to either decline to extend
paragraph 3 of the Amended TRO, or amend it to only restrain Defendants from “revealing Ms.
Doe’s abortion decision, in connection with her name or other information that would reveal her
identity, except insofar as necessary to perform their custodial obligations such as providing
medical care, emergency care, or identifying and evaluating potential sponsors.”

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ARGUMENT
I.

ORR’s consent policy permits the disclosure of important personal facts about Ms. Doe
to medical providers and sponsors when doing so is in her best interests.
Contrary to Plaintiff’s assertion, Section 8.101 of ORR’s Policies and Procedures, by its
very terms, was created to protect minors from outside entities seeking their personal records and
information: It is addressed solely to “[o]utside entities, attorneys, or other individuals . . .
seeking UC case file information[.]” See https://www.acf.hhs.gov/orr/resource/requests-for-uaccase-file-information. It makes no mention of how ORR uses this information internally, and in
no way prevents ORR from using and disclosing a minor’s information as ORR carries out its
custodial duties on the minor’s behalf, including informing the minor’s medical care providers
and potential sponsors regarding important and relevant personal and medical facts. Indeed, it
would be exceedingly difficult for ORR to carry out its custodial duties without such flexibility.
Plaintiff misstates ORR’s consent policy for minors, arguing that “ORR policies
regarding the disclosure of similarly sensitive information about minors who are over the age of
14 require that the minor’s consent be obtained prior to any disclosure.” Plaintiff’s Opposition at
4. That is not what the policy says. Nor would it make sense to re-write the policy in that way,
as imposing a new consent requirement would complicate real-time communication and frustrate
ORR’s fulfillment of its custodial responsibilities. The Court should reject Plaintiff’s misguided
attempt to re-write the policy.

II.

ORR can disclose important personal facts about Ms. Doe to medical providers and
sponsors, particularly when she has already disclosed that information to ORR.
Ms. Doe’s right to non-disclosure of her abortion is not unrestricted. The Supreme Court
has been clear in stating that privacy interests do not automatically outweigh the reasonable
exercise of the government’s legitimate authorities. See, e.g., Whalen v. Roe, 429 U.S. 589, 600-

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03 (1977). Importantly, Ms. Doe is a minor who is away from her birth parents, and ORR
appears in loco parentis in this instance for Ms. Doe, as Congress had directed ORR to take care
and custody of unaccompanied minors like Ms. Doe, until they can be released to a sponsor. See
8 U.S.C. § 1232(b); see also 6 U.S.C. § 279(b)(1)(B) (ORR must ensure that “the interests of the
child are considered in decisions and actions relating to the care” of an unaccompanied minor);
cf. Parham v. J.R., 442 U.S. 584, 619 (1979) (“[T]he state agency having custody and control of
the child in loco parentis has a duty to consider the best interests of the child . . . .”). The
Supreme Court has long recognized “that when a parent or another person has assumed ‘primary
responsibility’ for a minor’s well-being, the State may properly enact ‘laws designed to aid
discharge of that responsibility.’”

Hodgson v. Minn., 497 U.S. 417, 448 (1990) (quoting

Ginsberg v. New York, 390 U.S. 629, 639 (1968)). This is because “[t]he State has a strong and
legitimate interest in the welfare of its young citizens, whose immaturity, inexperience, and lack
of judgment may sometimes impair their ability to exercise their rights wisely.” Id. at 444.
Thus, ORR, acting in loco parentis for Ms. Doe, has the authority to disclose information
to medical providers and sponsors when ORR believes that it is in Ms. Doe’s best interests. The
fact that Ms. Doe obtained a judicial bypass of the parental notification requirement for an
abortion is entirely irrelevant to the execution of ORR’s duties. Plaintiff’s Opposition at 1, 5.
The relevant law is the statutory role created by Congress for ORR. And the relevant fact here is
that Ms. Doe disclosed her desire to obtain an abortion to ORR when she requested that ORR
help facilitate her abortion. Thus, her limited privacy interest in non-disclosure of the abortion
obtained from the judicial bypass has been waived. When a minor who obtains a judicial bypass
chooses to disclose to her parents or legal guardians the fact that she wants or obtains and
abortion, there is no doubt that the parents or legal guardians may, thereafter, make decisions

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based on that disclosure that are in her best interests, including disclosing her abortion decision
to medical providers and future caretakers.
Indeed, a content-based prior restraint of the nature imposed by the extended TRO would
likely constitute an impermissible abridgement of First Amendment rights, were it imposed on a
parent. See, e.g., Smith v. Daily Mail Pub. Co., 443 U.S. 97, 101-02 (1979) (disclosure of
minor’s names lawfully obtained); Oklahoma Pub. Co. v. District Court, 430 U.S. 308, 310
(1977) (injunction against media disclosure of information lawfully obtained); Nebraska Press
Ass’n v. Stuart, 427 U.S. 539, 558-59 (1976). Just as the parent of such a minor would be
permitted to act based on information lawfully obtained, so, too, may ORR. The government,
while acting in the place of the parent or as the legal guardian of an unaccompanied minor, does
not transgress the rights of a minor in its care by carrying out its important, legitimate custodial
responsibilities in a similar manner based on information voluntarily conveyed.
III.

Plaintiff’s contentions about Defendants’ motivations are unfounded.
Plaintiff contends that ORR wishes to reveal her abortion decision “over her objection

and without her consent—to third parties, including her medical providers and prospective
sponsors.” Plaintiff’s Opposition at 1. Plaintiff is wrong. Defendants did not reveal Ms. Doe’s
abortion decision to random third parties simply to violate her privacy. Nor do Defendants have
any desire to do so.
Improper disclosures may not be presumed. Cf. Whalen, 429 U.S. at 600-01. Defendants
have proffered legitimate custodial reasons for potentially disclosing that information in limited
circumstances: primarily to medical providers and prospective sponsors. Neither medical
providers nor sponsors (who will take up the issue of future medical care) can be reasonably
expected to carry out their functions in absence of the disclosed information. These reasons, as

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discussed before, include placing her on the appropriate medical regimen; informing medical
personnel in the case of an emergency1; and identifying a safe sponsor. Jonathan White (“White
Decl.”) ¶¶ 5-10. These constitute significant ORR custodial responsibilities that indefinite
continuation of paragraph 3 of the Amended TRO makes even more difficult to carry out.

Ms. Doe’s attempt at Plaintiff’s Opposition at 6, fn.5 to amend paragraph 3 of the Amended
TRO to require that disclosure of the abortion to be contingent on the emergency care provider
signing a waiver fails to appreciate the impracticality of making these assessments during an
actual medical emergency, when Ms. Doe, herself, may be incapacitated and where treatment
should not rest on the ability to obtain a timely waiver.
1

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CONCLUSION
Defendants again respectfully request that the Court reconsider its October 30, 2017
Order, and deny extension of paragraph 3 the Amended TRO. In the alternative, the Court
should not enter an extended provision that goes any further than restraining Defendants from
“revealing Ms. Doe’s abortion decision, in connection with her name or other information that
would reveal her identity, except insofar as necessary to perform their custodial obligations such
as providing medical care, emergency care, or identifying and evaluating potential sponsors.”
Dated: November 27, 2017

Respectfully submitted,
CHAD A. READLER
Principal Deputy Assistant Attorney General
Civil Division
AUGUST E. FLENTJE
Special Counsel
Civil Division
ERNESTO H. MOLINA
Deputy Director
Office of Immigration Litigation,
Appellate Section
BY: /s/ W. Daniel Shieh
W. DANIEL SHIEH
Trial Attorney
Office of Immigration Litigation
Civil Division, U.S. Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Phone: (202) 305-9802
Fax: (202) 305-1890
Daniel.Shieh@usdoj.gov
Attorneys for Defendants

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