Azar v. Garza involved the efforts of "Jane Doe," a minor held in HHS custody, to obtain a legal abortion in Texas. Acting on her behalf, ACLU attorneys eventually obtained a TRO from the D.C. District Court, ordering DHS to allow the minor to keep an appointment at an abortion clinic, which was originally scheduled for a mandatory counseling session. The government planned to seek an emergency stay from SCOTUS but, believing that the abortion could not immediately go forward, delayed action for a day. It turned out that the counseling session was not required, and the minor obtained her abortion before the government could file its petition.
In response, the government filed a cert petition asking to dismiss the underlying case for mootness (in order to avoid a precedent), and also seeking "disciplinary action" against the ACLU attorneys for making misleading statements about the scheduling of the abortion, and thus preventing the SG from timely filing its stay petition.
I blogged about the sanctions request here, pointing out that the government had not expressed great confidence in its own position:
Given the dealings between the parties, respondent’s counsel at least arguably had an obligation to notify the government of this incredibly significant development [the scheduling of the abortion procedure].
As I explained, In ordinary legal writing, the term 'arguable' usually refers to a position that is somewhat better than frivolous, but still without merit."
SCOTUS has now ruled on the petition, describing the positions of the parties and declining to take the action urged by the SG. Here is the discussion in toto:
The Government also suggests that opposing counsel made “what appear to be material misrepresentations and omissions” that were “designed to thwart this Court’s review.” Pet. for Cert. 26. Respondent says this suggestion is “baseless.” Brief in Opposition 23. The Court takes allegations like those the Government makes here seriously, for ethical rules are necessary to the maintenance of a culture of civility and mutual trust within the legal profession. On the one hand, all attorneys must remain aware of the principle that zealous advocacy does not displace their obligations as officers of the court. Especially in fast-paced, emergency proceedings like those at issue here, it is critical that lawyers and courts alike be able to rely on one another’s representations. On the other hand,lawyers also have ethical obligations to their clients and not all communication breakdowns constitute misconduct. The Court need not delve into the factual disputes raised by the parties in order to answer the [underlying] question here.
You can read the per curiam opinion here.
This is exactly what baffles me about Civil guys. Sanctions this and sanctions that. Bunch of babies. Why don't you just try the case already? This is one big reason I never take Civil stuff. Refer it to my buddies and get a check in the end. Don't have to put up with this nonsense or blowing a Statute.
This was a dangerous move on the SG's part. It was just a few years ago when the SG (pre-Trump) made representations in oral argument to SCOTUS about how ICE – I think – operates. Post-decision, the SG filed a letter acknowledging the mistake but contending, essentially, 'no harm, no foul.'
The government loves (not likes) to exaggerate the ethical failings of its opponents but quickly forgets that it is not immune from the same activity.