Guam Society of Obstetricians and Gynecologists et al v. Ada, et al.

Filing 410

Order denying 357 Motion to Vacate Permanent Injunction Pursuant to Fed.R.Civ.P. 60(b)(5) and to Dismiss this Case With Prejudice filed by Douglas B. Moylan, finding as moot 368 Motion For Abstention filed by Lourdes Leon Guerrero; finding as moo t 389 Motion for Dr. Kaneshiro, Dr. Raidoo, and Famalao'an Rights to Intervene as Plaintiffs Under Fed.R.Civ.P.24. Signed by Chief Judge Frances M. Tydingco-Gatewood on 3/24/2023. (fad, ) (Main Document 410 replaced on 3/24/2023) (fad, ). **Modified on 3/24/2023 to attach corrected pdf** (fad, ).

Page 1 of 4
1
2
3
4
5
THE DISTRICT COURT OF GUAM

6
7
8
9
10
11

GUAM SOCIETY OF OBSTETRICIANS
AND GYNECOLOGISTS; GUAM NURSES
ASSOCIATION; THE REVEREND MILTON
H. COLE, JR.; LAURIE KONWITH;
EDMUND A. GRILEY, M.D.; WILLIAM S.
FREEMAN, M.D.; JOHN DUNLOP, M.D.; on
behalf of themselves and all others similarly
situated, and all their women patients,

14
15
16
17
18
19
20
21
22

ORDER DENYING DEFENDANT
ATTORNEY GENERAL OF GUAM’S
MOTION TO VACATE PERMANENT
INJUNCTION

Plaintiffs,

12
13

CIVIL CASE NO. 90-00013

vs.
LOURDES A. LEON GUERRERO, in her
official capacity as the Governor of Guam;
ARTHUR U. SAN AGUSTIN, in his official
capacity as the Director of the Department of
Public Health and Social Services; LILLIAN
PEREZ-POSADAS, M.N., R.N., in her official
capacity as the Administrator of the Guam
Memorial Hospital Authority; DOUGLAS B.
MOYLAN, in his official capacity as the
Attorney General of Guam; ALICE M.
TAIJERON, GERARD “JERRY” C.
CRISOSTOMO, JOSEPH P. MAFNAS,
ANTONIA “TONI” R. GUMATAOTAO,
BENNY A. PINAULA, G. PATRICK
CIVILLE, and CARISSA E. PANGELINAN,
in their official capacities as the Board of
Directors of the Guam Election Commission,
together with all others similarly situated,

23
Defendants.
24

Case 1:90-cv-00013 Document 410 Filed 03/24/23 Page 1 of 4

Page 2 of 4
Before the court is Defendant Attorney General of Guam Douglas B. Moylan’s Motion to

1
2

Vacate Permanent Injunction Pursuant to Fed. R. Civ. P. 60(b)(5) and to Dismiss the Case with

3

Prejudice (hereinafter “Motion”). See ECF No. 357. For the reasons stated herein, the Motion is

4

hereby DENIED.1

5

Defendant Attorney General of Guam (“Defendant AG”) moves the court for an order

6

vacating the permanent injunction issued on August 23, 1990, in the above-captioned matter. See

7

Mot., ECF No. 357. The basis for the Motion is that “[t]he doctrinal underpinnings of the

8

permanent injunction in this case were predicated on the Supreme Court’s decision in Roe v.

9

Wade . . . . But Roe and its progeny are no longer the law.” Mem. Supp. at 2-3,2 ECF No. 358.

10

Plaintiffs, Defendant Governor of Guam (“Defendant Governor”), and Defendant Guam

11

Memorial Hospital Administrator (“Defendant GMH Administrator”) filed oppositions to the

12

Motion. See Opp’ns, ECF Nos. 382, 391, and 392. Defendants Governor and GMH

13

Administrator both argue that Sections 4 and 5 of Guam Public Law 20-134 violate the First

14

Amendment’s freedom of speech clause. See Def. Governor’s Opp’n at 28-32, ECF No. 382;

15

Def. GMH Adm’r’s Opp’n at 11-15, ECF No. 392. They argue that the United States Supreme

16

Court’s opinion in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022),3

17

neither impacted nor affected the unconstitutionality of these sections. Id. Defendant Governor

18

also argues that Guam Public Law 20-134 was impliedly repealed by subsequent measures

19

passed by the Guam Legislature and therefore, the Motion is moot. See Def. Governor’s Opp’n at

20

18-27, ECF No. 382. Defendant GMH Administrator separately argues that the Government of

21

Guam did not appeal the District Court of Guam’s decision on Sections 4 and 5 of Guam Public

22

Law 20-134, and therefore, any challenges to said sections are foreclosed. Def. GMH Adm’r’s

23
1

24

The court finds oral argument to be unnecessary.
The page numbering throughout this order is based on the CM/ECF page numbering system.
3
In a nutshell, Dobbs reversed Roe v. Wade.
2

Case 1:90-cv-00013 Document 410 Filed 03/24/23 Page 2 of 4

Page 3 of 4
1

Opp’n at 13-14, ECF No. 392.
Plaintiffs, on the other hand, argue, inter alia, that Defendant AG has not met his burden

2
3

for obtaining relief under FED. R. CIV. P. 60(b)(5). Pls.’ Opp’n., ECF No. 391. Defendant AG

4

“does not (and cannot) dispute that both the ban on pre-viability abortion and solicitation of

5

abortion violated the laws of the United States applicable to Guam, when [Guam Public Law 20-

6

134] was passed.” Id. at 18. Because the abortion ban violated the laws of the United States

7

applicable to Guam, the Guam Legislature lacked the authority to enact such a ban.4 Id. at 19.

8

Plaintiffs contend that because the Guam Legislature lacked the authority, Guam Public Law 20-

9

134 was void ab initio. Id. at 16-20.

10

While Defendant AG filed a response to the oppositions filed by Defendants Governor

11

and GMH Administrator (see Reply, ECF No. 409), Defendant AG’s Reply did not respond to

12

the issues raised in the Plaintiffs’ Opposition.5 Based on Defendant AG’s lack of response to

13

Plaintiffs’ arguments, especially those that did not overlap with the arguments raised by

14

Defendants Governor and GMH Administrator, it is reasonable to presume that Defendant AG

15

takes no position on their arguments or is not contesting them. Maciel v. Cate, 731 F.3d 928, 932

16

n.4 (9th Cir. 2013) (holding a party forfeited an argument raised in the opponent’s answering

17

brief by failing to address it in reply brief); Sabra v. Maricopa Cty. Cmty. Coll. Dist., 44 F.4th

18

867, 881-882 (9th Cir. 2022) (same).

19

Rule 60(b)(5) permits a party to obtain relief from a judgment or order if “the judgment

20

has been satisfied, released, or discharged; it is based on an earlier judgment that has been

21

reversed or vacated; or applying it prospectively is no longer equitable[.]” FED. R. CIV. P.

22

60(b)(5). In reviewing a Rule 60(b)(5) motion, the Supreme Court requires that there must be “a

23
4

24

“The legislative power of Guam shall extend to all rightful subjects of legislation not inconsistent with the
provisions of [the Organic Act] and the laws of the United States applicable to Guam.” 48 U.S.C. § 1423a.
5
A reply to all oppositions was due March 22, 2023. See Order at 2, ECF No. 393; CVLR 7(f).

Case 1:90-cv-00013 Document 410 Filed 03/24/23 Page 3 of 4

Page 4 of 4
1

significant change in facts or law [that] warrants revision of the decree,” and “the proposed

2

modification [must be] suitably tailored to the changed circumstance.” Rufo v. Inmates of Suffolk

3

Cty. Jail, 502 U.S. 367, 393 (1992). The party seeking relief bears the burden of establishing that

4

changed circumstances warrant relief. Id. In this case, the burden falls on Defendant AG.

5

While Defendant AG argues that the legal basis for the permanent injunction no longer

6

exists, Defendant AG failed to address whether the change in law in Dobbs warrants vacatur of

7

the permanent injunction in its entirety. As Plaintiffs have argued, “irrespective of Dobbs or any

8

other Supreme Court decision concerning abortion issued after [Guam Public Law 20-134] was

9

enacted, the [public law] was a legal nullity the moment it was passed and can have no force or

10

effect today.” Pls.’ Opp’n at 20, ECF No. 391. Defendant AG has not refuted this argument, and

11

after having reviewed the relevant statutes and the legal authority provided by Plaintiffs in their

12

opposition, to which Defendant AG did not respond, the court finds that Defendant AG has not

13

met his burden under Rule 60(b)(5).
Based on the foregoing, the court hereby DENIES Defendant AG’s Motion. Any other

14
15

pending motions6 in this case are hereby MOOT.

16

SO ORDERED.

17

/s/ Frances M. Tydingco-Gatewood
Chief Judge
Dated: Mar 24, 2023

18
19
20
21
22
23
24

6

Motion to Intervene, ECF No. 389; and Motion for Abstention, ECF No. 368.

Case 1:90-cv-00013 Document 410 Filed 03/24/23 Page 4 of 4