Case 3:16-cv-03539 Document 1 Filed 06/24/16 Page 1 of 17

1

ELIZABETH O. GILL (SBN 218311) JENNIFER L. CHOU (SBN 304838)

2

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC.

3

39 Drumm Street San Francisco, CA 94111

4

Telephone: (415) 621-2493 Facsimile: (415) 255-8437

5

Email: egill@aclunc.org Email: jchou@aclunc.org

6 BRIGITTE AMIRI (pro hac vice)

7

BRIAN HAUSS (SBN 284759) AMERICAN CIVIL LIBERTIES UNION FOUNDATION

8

125 Broad Street, 18th Floor New York, NY 10004

9

Telephone: (212) 549-2633 Facsimile: (212) 549-2652

10

Email: bamiri@aclu.org Email: bhauss@aclu.org

11 MELISSA GOODMAN (SBN 289464)

12

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA

13

1313 West 8th Street Los Angeles, California 90017

14

Telephone: (213) 977-9500 Facsimile: (213) 977-5299

15 Email: mgoodman@aclusocal.org

16

DANIEL MACH (pro hac vice) AMERICAN CIVIL LIBERTIES UNION FOUNDATION

17

915 15th Street NW Washington, DC 20005

18

Telephone: (202) 675-2330 Email: dmach@aclu.org

19 Attorneys for Plaintiff

20

THE UNITED STATES DISTRICT COURT

21

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

22

AMERICAN CIVIL LIBERTIES UNION OF )

23 NORTHERN CALIFORNIA,

)

24

Plaintiff,

) ) Civil No. 3:16-cv-3539

25 v.

) ) COMPLAINT

26

)

SYLVIA MATHEWS BURWELL,

)

27 Secretary of Health and Human Services;

)

28 MARK GREENBERG, Acting Assistant

)

______________________________________________________________________________

COMPLAINT

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Case 3:16-cv-03539 Document 1 Filed 06/24/16 Page 2 of 17

1 Secretary for Administration for Children

)

and Families; ROBERT CAREY, Director of )

2 Office of Refugee Resettlement, in their

)

official capacities,

)

3

)

4

Defendants.

)

5

Plaintiff American Civil Liberties Union of Northern California (“Plaintiff” or “ACLU of

6 Northern California”), for its complaint in the above-captioned matter, alleges as follows:

7

PRELIMINARY STATEMENT

8

1. There are currently thousands of unaccompanied immigrant minors (also known

9 as unaccompanied children, or “UC”) in the legal custody of the federal government. These

10 young people are extremely vulnerable: Many have come to the United States fleeing abuse and

11 torture in their home countries; many have been sexually abused or assaulted either in their home

12 countries, during their long journey to the United States, or after their arrival; some have also

13 been trafficked for labor or prostitution in the United States or some other country; and many

14 have been separated from their families.

15

2. The federal government is legally required to provide these young people with

16 basic necessities, such as housing, food, and access to emergency and routine medical care,

17 including family planning services, post-sexual assault care, and abortion.

18

3. To provide young people with these necessities, the government, through the

19 Office of Refugee Resettlement (“ORR”), issues grants to private entities, including a number of

20 religiously affiliated organizations.

21

4. Yet, according to documents obtained through the Freedom of Information Act,

22 Defendants authorize a few of these religiously affiliated organizations—such as the United

23 States Conference of Catholic Bishops (“USCCB”) and its subgrantees across the country,

24 including Catholic Charities of Santa Clara County in California—to refuse on religious grounds

25 to provide information about, access to, or referrals for contraception and abortion, even if the

26 young person in their care has been raped.

27

28

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COMPLAINT

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Case 3:16-cv-03539 Document 1 Filed 06/24/16 Page 3 of 17

1

5. For example, Defendants approved grants to USCCB—nearly $10 million in 2014

2 alone—even though ORR was well aware that USCCB’s agreement with its subgrantees

3 explicitly prohibits them from providing, referring, encouraging, or in any way facilitating access

4 to contraceptives and abortion services. Defendants also allow these organizations to reject

5 young women seeking abortion from their programs, and to expel young women who ask for an

6 abortion.

7

6. Defendants’ decision to authorize this religiously motivated denial of services has

8 extraordinary consequences for the vulnerable unaccompanied immigrant minor population. For

9 example, one young woman—who was hospitalized for suicidal ideation after she became

10 pregnant as the result of rape by one of her “guides” to the United States—was kicked out of her

11 Catholic-affiliated shelter because she asked for an abortion. As a result, she was transferred to

12 another shelter, away from the social workers and other shelter support staff who constituted her

13 only support system in this country. Another young woman, who had also become pregnant as a

14 result of rape on her journey to the United States, was denied placement at a shelter near her

15 family in Florida because the two available shelters both had religious objections to caring for

16 teens who seek abortions.

17

7. ORR has authorized USCCB and other grantees to impose religiously based

18 restrictions on young women’s access to reproductive health care—care that these young women

19 are entitled to receive by law. Defendants have therefore violated the Establishment Clause by

20 failing to remain neutral with respect to religion, by subsidizing grantees’ religious beliefs to the

21 detriment of unaccompanied immigrant minors, and by underwriting religious restrictions on

22 vital government-funded services.

23

8. This is not the first time that Defendants have violated the Establishment Clause

24 in this manner. In 2012, a federal district court held that Defendants violated the Establishment

25 Clause when they authorized USCCB to prohibit its subcontractors from referring or providing

26 access to abortion or contraception for trafficking victims in a federal program, despite clear law

27 requiring such services. ACLU of Massachusetts v. Sebelius, 821 F. Supp. 2d 474 (D. Mass.

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COMPLAINT

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Case 3:16-cv-03539 Document 1 Filed 06/24/16 Page 4 of 17

1 2012), vac’d, 705 F.3d 44 (1st Cir. 2013) (holding that the case was moot because Defendants’

2 contract with USCCB had expired).

3

9. Plaintiff’s members include federal taxpayers, whose tax dollars finance the

4 grants provided by Defendants to these religious organizations. Plaintiff seeks, among other

5 relief, an injunction ordering Defendants to ensure that federal grants are implemented without

6 the above-mentioned religious restrictions.

7

JURISDICTION AND VENUE

8

10. This action arises under the First Amendment of the United States Constitution

9 and presents a federal question within this Court’s jurisdiction under Article III of the

10 Constitution and 28 U.S.C. § 1331.

11

11. Plaintiff’s claims for declaratory and injunctive relief are authorized by 28 U.S.C.

12 §§ 2201 and 2202, by Federal Rules of Civil Procedure 57 and 65, and by the inherent equitable

13 powers of this Court.

14

12. The Court has authority to award costs and attorneys’ fees under 28 U.S.C. §

15 2412.

16

13. Venue is proper in this district under 28 U.S.C. § 1391(e).

17

INTRADISTRICT ASSIGNMENT

18

14. This action arises in the San Francisco Division because Plaintiff’s headquarters

19 are in San Francisco.

20

PARTIES

21

15. Plaintiff ACLU of Northern California is a nonprofit membership organization

22 devoted to protecting the basic civil liberties embodied in the United States Constitution,

23 including those religious liberties of belief and conscience safeguarded by the Establishment

24 Clause of the First Amendment. The ACLU of Northern California is a state affiliate of the

25 national American Civil Liberties Union and is domiciled in the State of California, with its

26 principal place of business in San Francisco, California. Members of the ACLU of Northern

27 California pay federal taxes into the general revenues from which Congress appropriates funds to

28 ______________________________________________________________________________

COMPLAINT

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Case 3:16-cv-03539 Document 1 Filed 06/24/16 Page 5 of 17

1 satisfy the government’s obligations to provide care to unaccompanied immigrant minors under

2 the Homeland Security Act (“HSA”) and the William Wilberforce Trafficking Victims

3 Protection Reauthorization Act (“TVPRA”). Plaintiff and its members object to, and are injured

4 by, the use of federal tax dollars pursuant to the HSA and the TVPRA in a manner that is non-

5 neutral with respect to religion, subsidizes religious beliefs to which they do not subscribe, and

6 underwrites religious restrictions on critical government-funded services.

7

16. Defendant Sylvia Mathews Burwell is the Secretary of the United States

8 Department of Health and Human Services (“HHS”) and is responsible for the administration

9 and oversight of the Department. Defendant Burwell has authority over the Administration for

10 Children and Families (“ACF”), a subdivision of HHS. By permitting USCCB and other

11 organizations to impose their religiously based restrictions on the services unaccompanied

12 immigrant minors can receive with taxpayer funds, Defendant Burwell has violated the

13 Establishment Clause. Defendant Burwell and her successors are sued in their official capacities.

14

17. Defendant Mark Greenberg is the Acting Assistant Secretary for ACF. Defendant

15 Greenberg has authority over ORR, a subdivision of ACF. By permitting USCCB and other

16 organizations to impose their religiously based restrictions on the services unaccompanied

17 immigrant minors can receive with taxpayer funds, Defendant Greenberg has violated the

18 Establishment Clause. Defendant Greenberg and his successors are sued in their official

19 capacities.

20

18. Defendant Robert Carey is the Director of ORR. By permitting USCCB and other

21 organizations to impose their religiously based restrictions on the services unaccompanied

22 immigrant minors can receive with taxpayer funds, Defendant Carey has violated the

23 Establishment Clause. Defendant Carey and his successors are sued in their official capacities.

24

25

26

27

28 ______________________________________________________________________________

COMPLAINT

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1

FACTS GIVING RISE TO THIS ACTION

2

The Unaccompanied Children (“UC”) Program

3

19. Unaccompanied immigrant minors come into federal custody in a variety of

4 ways.1 Many of these young people are apprehended at or near the border by the United States

5 Department of Homeland Security’s Customs and Border Protection Unit (“CBP”). After their

6 initial apprehension, these young people are held in “holding tanks” or cells maintained by CBP.

7 After several days, they are transferred to ORR. Other unaccompanied immigrant minors are

8 apprehended within the interior of the United States, including after contact with the juvenile

9 justice system, or during immigration enforcement activities inside the country.

10

20. ORR has responsibility for the “care and custody of all unaccompanied []

11 children, including responsibility for their detention, where appropriate.” 8 U.S.C. § 1232(b)(1).

12 By statute, any federal department or agency that determines that it has an unaccompanied

13 immigrant minor in its custody must transfer the minor to ORR within 72 hours of making that

14 determination. Id. § 1232(b)(3). The federal government reports that in Fiscal Year 2015, 33,726

15 unaccompanied immigrant minors were referred to ORR.

16

21. The federal government and all of its programs are required to ensure that the best

17 interests of the unaccompanied immigrant minor are protected. Section 462 of the Homeland

18 Security Act (“HSA”) requires ORR to “ensur[e] that the interests of the child are considered in

19 decisions and actions relating to the care and custody of an unaccompanied child.” 6 U.S.C. §

20 279(b)(1)(B). It also requires ORR to conduct “investigations and inspections of facilities and

21 other entities in which unaccompanied children reside, including regular follow-up visits . . . to

22 assess the continued suitability of such placements.” Id. § 279(b)(1)(L).

23

24 1 By statutory definition, unaccompanied immigrant minors are under 18 years old, have no legal 25 immigration status, and either have no parent or legal guardian in the United States, or there is no
parent or legal guardian in the United States able to provide care and physical custody. 6 U.S.C. 26 § 279(g)(2).
27

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1

22. In addition, Section 235 of the TVPRA directs HHS to ensure that

2 unaccompanied immigrant minors are “promptly placed in the least restrictive setting that is in

3 the best interest of the child.” 8 U.S.C. § 1232(c)(2)(A).

4

23. Most unaccompanied immigrant minors who are referred to ORR are eventually

5 released from custody to parents or sponsors who live in the United States. Such minors are often

6 held in short-term facilities or shelters while they await release to their parents or sponsors. A

7 significant number of unaccompanied immigrant minors are not released to parents or sponsors,

8 and spend longer periods of time in custody. For some minors, ORR cannot identify an

9 individual who can serve as a viable sponsor. Young people who are expected to be in the

10 government’s custody for an extended period or those who have special needs are sometimes

11 transferred to group homes or a foster family. For others, ORR may determine that the minor

12 should be placed in a more restrictive custodial setting. Young people who are flight risks, for

13 example, are held in jail-like facilities with limited, if any, freedom.

14

24. Unaccompanied immigrant minors in ORR’s legal custody are cared for through a

15 network of ORR-funded facilities and shelters—including a number of religiously affiliated

16 entities, such as USCCB subgrantees; Catholic Charities Boystown; His House; and Youth for

17 Tomorrow.

18

25. USCCB does not provide services directly to unaccompanied immigrant minors,

19 but instead issues subgrants to Catholic Charities and other organizations around the country that

20 do so, including, according to documents obtained by the ACLU under the Freedom of

21 Information Act: Bethany Christian Services (Grand Rapids, Michigan), Catholic Charities Forth

22 Worth (Fort Worth, Texas), Catholic Charities Houston (Houston, Texas), Catholic Charities

23 Santa Clara County (San Jose, California), Catholic Community Services Tacoma (Tacoma,

24 Washington), Catholic Family Center (Rochester, New York), and Commonwealth Catholic

25 Charities (Richmond, Virginia).

26

27

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COMPLAINT

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Case 3:16-cv-03539 Document 1 Filed 06/24/16 Page 8 of 17

1 Unaccompanied Immigrant Minors Are Legally Entitled to Receive Access to Reproductive

2

Health Care

3

26. Unaccompanied immigrant minors have an acute need for reproductive health

4 care, which is both time-sensitive and is needed over the course of their time in federal custody.

5 For example, a high number of these young women are victims of sexual assault. Some of these

6 women will need access to emergency contraception, and some will need access to abortion. Any

7 female aged 10 or older must undergo a pregnancy test within 48 hours of admission to an ORR-

8 funded facility. This is the point at which many young women first learn they are pregnant.

9 Many unaccompanied minors need pregnancy prevention services and/or access to abortion

10 during their short or long periods in ORR custody.

11

27. The federal government is legally obligated to ensure that all programs that

12 provide care to these young people comply with the minimum requirements detailed in the

13 Flores v. Reno Settlement Agreement, CV-85-4544-RJK (Jan. 17, 1997) (“Flores agreement”).

14 The Flores agreement requires the government to provide or arrange for, among other things,

15 “appropriate routine medical . . . care,” including specifically “family planning services[] and

16 emergency health care services.”

17

28. Additionally, in response to its obligations under the Prison Rape Elimination Act

18 (“PREA”) and the Violence Against Women Reauthorization Act of 2013 (“VAWA 2013”),

19 ORR issued a regulation requiring all ORR-funded care provider facilities to, among other

20 things, provide unaccompanied immigrant minors who are victims of sexual assault with access

21 to reproductive healthcare. The regulation states, in relevant part, that grantees providing care to

22 unaccompanied immigrant minors who have experienced sexual abuse while in federal custody

23 must ensure “unimpeded access to emergency medical treatment, crisis intervention services,

24 emergency contraception, and sexually transmitted infections prophylaxis.” 45 C.F.R. §

25 411.92(a). The regulation further provides that grantees must ensure that a young person subject

26 to sexual abuse is offered a pregnancy test, and “[i]f pregnancy results from an instance of sexual

27 abuse, [the] care provider facility must ensure that the victim receives timely and comprehensive

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Case 3:16-cv-03539 Document 1 Filed 06/24/16 Page 9 of 17

1 information about all lawful pregnancy-related medical services.” Id. § 411.93(d). Grantees were

2 required to comply with this regulation by June 24, 2015.

3

29. Upon information and belief, unaccompanied immigrant minors face significant

4 barriers to obtaining services not provided by the government and/or its grantees. For example,

5 even if a teen can leave the shelter, she still may not be able to obtain access to abortion or

6 contraceptives without assistance because she likely speaks little or no English; she may have no

7 support system, other than that provided by the federal program; she may have no means of

8 transportation to the doctor’s office; and she may have little or no financial resources. If she is

9 not informed that contraceptives and abortions are available in the United States, she may not

10 even know that these options exist, given that many of these young people come from countries

11 where abortion is illegal.

12 ORR Authorizes Grantees’ Religious Restrictions on Young Women’s Access to Abortion

13

and Contraception

14

30. Defendants knowingly permit religiously affiliated grantees with religious

15 objections to abortion and contraception to impose restrictions on unaccompanied immigrant

16 minors’ access to these forms of reproductive healthcare. In so doing, Defendants allow these

17 grantees to flout Flores, the PREA/VAWA regulation, and their obligations under the HSA,

18 including by: allowing objecting programs to refuse to provide young women in their care with

19 information about, referrals for, or access to contraception and abortion; transferring young

20 women who seek access to contraception or abortion out of objecting programs; and refusing to

21 place young women who are seeking access to emergency contraception or abortion in objecting

22 programs, even if that placement would otherwise be in the young woman’s best interest.

23

31. For example, Defendants altered the language used in its cooperative agreements

24 with UC program grantees in response to USCCB’s objection to providing access to reproductive

25 health care.

26

32. In early 2011, ORR included specific family-planning language in its cooperative

27 agreements. Among other things, these agreements stated: “Family planning services are already

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1 required by the Flores settlement agreement, and therefore this cooperative agreement . . . . The

2 grantees will refer female [unaccompanied immigrant minors] to medical care providers who can

3 provide a broad range of acceptable and effective medically approved family planning methods

4 and services. The grantees will refer female [unaccompanied immigrant minors] to medical care

5 providers who offer pregnant [unaccompanied immigrant minors] the opportunity to be provided

6 information and counseling regarding prenatal care and delivery; infant care, foster care, or

7 adoption; and pregnancy termination.”

8

33. ORR removed this language based on USCCB’s objection to the contraception

9 and abortion requirements.

10

34. In fact, USCCB has made quite clear that they refuse to provide access to these

11 reproductive healthcare services for the young people in their care. In response to ORR’s

12 PREA/VAWA regulation requiring access to reproductive health care for unaccompanied

13 immigrant minors who are subject to sexual assault, USCCB issued a public letter stating that it

14 cannot “help ensure access” to any medical care that is contrary to its religious beliefs. In other

15 words, USCCB said that it should be free “from any requirement to provide, facilitate the

16 provision of, provide information about, or refer or arrange for items or procedures to which they

17 have a religious or moral objection.” This includes freedom from notifying the federal

18 government that a minor in their care is seeking an abortion, even in cases of rape in federal

19 custody, so that the federal government could step in and provide the minor with access to 20 abortion.2

21

22

23

2 In the preamble to its regulation, ORR stated that organizations that refuse to provide or refer for certain services could serve as subgrantees or as members of a consortium of service

24 providers, so that other organizations without religious objections could provide unaccompanied immigrant minors with the required services. Alternatively, ORR stated that a grantee may notify

25 federal officials if a young person in its care requires services to which the grantee objects, and

that ORR would then either provide the services itself or transfer the young person to a grantee 26 willing to provide the required services. USCCB has even objected to this accommodation.

27

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1

35. Defendants also allow USCCB to prohibit its subgrantees from providing

2 information about or access to contraception and abortion. USCCB’s cooperative agreements

3 with individual Catholic Charities and other subgrantees, which are provided to ORR, explicitly

4 state that subgrantees “must ensure that services provided to those served under this Agreement

5 are not contrary to the authentic teaching of the Catholic Church, its moral convictions, and

6 religious beliefs. Accordingly, [USCCB] expects that the Sub-recipient will provide services

7 under this Agreement within certain parameters including, among other things, that the Sub-

8 recipient will not provide, refer, encourage, or in any way facilitate access to contraceptives or

9 abortion services.”

10

36. Defendants have likewise approved grant applications for religiously affiliated

11 grantees, including individual Catholic Charities, even though the grant applications explicitly

12 state that the grantees will not provide family planning information or services to the young

13 people in their care.

14

37. For example, in a 2014–2015 direct grant application, the Catholic Charities of

15 the Archdiocese of Galveston-Houston stated: “Due to our religiously-affiliated institution’s

16 philosophy and policies, family planning practices are not discussed with clients. Clients are

17 encouraged to practice abstinence.” The grant application further provided that, “[i]n cases where

18 the pregnancy has been the result of a rape, the Clinician and Pregnancy Support Specialist work

19 to preserve confidentiality, helping clients process the trauma of the rape while also exploring

20 the decision of whether to keep the baby or plan an adoption.”

21

38. Upon information and belief, Defendants approved the Archdiocese of Galveston-

22 Houston’s grant application, without comment or modification. The Archdiocese of Galveston-

23 Houston received more than $8 million in federal taxpayer funds for the care of unaccompanied

24 immigrant minors between November 1, 2013, and September 30, 2016, despite its explicit

25 refusal to provide the young people in its charge with legally required access to reproductive

26 healthcare.

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1

39. Finally, Defendants facilitate the ostracization of young women who have

2 accessed or seek to access abortion. At grantees’ request, Defendants have transferred several

3 young women who requested access to abortion to other providers. Such transfers delay the

4 young person’s access to the requested healthcare, unfairly stigmatize her for choosing to

5 terminate the pregnancy, and uproot her from the support network developed at her initial

6 placement, including friends, social workers, mental and physical health professionals, teachers,

7 and lawyers assisting with asylum or deportation proceedings.

8

40. In other cases, Defendants have made decisions about where to initially place a

9 young person based on whether she had an abortion or is seeking an abortion. In those situations,

10 Defendants are allowing religiously affiliated programs to prevent them from making a

11 placement in the young person’s best interest. Thus, a young woman who has requested an

12 abortion may be forced into a program that is already operating at capacity, far from any family

13 members she has in the United States, and/or far from the reproductive health care clinic

14 performing her procedure.

15

41. The individual stories of these young women confirm the detrimental effects of

16 religiously based restrictions on access to reproductive health care.3

17

Rosa

18

42. Rosa, a 17-year-old, left her home country for the United States in 2014. She was

19 raped during her journey by one of her “guides” in Mexico.

20

43. Rosa learned that she was pregnant while in ORR custody at Catholic Charities in

21 Miami, Florida. She was distraught by the possibility of being denied an abortion, and said that if

22

23
24 3 Pursuant to a Freedom of Information Act request filed by the American Civil Liberties Union, Plaintiff has obtained a number of documents and emails describing the experiences young
25 women who have requested access to abortion while in ORR custody. Working from those documents, Plaintiff has pieced together several individual narratives, which are described
26 below. These narratives are based on information and belief. The names used here are 27 pseudonyms.

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1 she could not get an abortion, she would kill herself. As a result, she was hospitalized for suicidal

2 ideation.

3

44. When Rosa was going to be released from the hospital, the Catholic Charities

4 facility refused to allow her back into the program because she was seeking an abortion. Another

5 religiously affiliated ORR grantee, His House, also refused to accept her for the same reason.

6

45. Rosa was ultimately transferred to another facility, but even after she was

7 transferred, one of her clinicians at her new facility reported that Rosa was “anxious and

8 preoccupied with this abortion and when it will happen,” and that the issue had become urgent

9 because she “might start to inflict trauma to the fetus or herself.”

10

46. ORR ultimately approved the request for federal funding of Rosa’s abortion, and

11 she was able to obtain the abortion.

12

Maria

13

47. Maria was 14 years old when she fled from her home country in 2014. She had

14 been living there with her aunt, while her parents were in the United States. She was physically

15 abused by her maternal grandmother, and had been threatened with physical discipline by her

16 parents when they lived with her.

17

48. After entering the United States, Maria was placed with an ORR shelter in Texas.

18 At a doctor’s visit, Maria discovered she was pregnant—likely because of the rape she

19 experienced on her journey to the United States.

20

49. An email from an ORR official indicates that the agency had looked into the

21 possibility of transferring Maria to Florida, to be near her family, but was unable to do so

22 because “both of the shelters in Florida are faith-based and will not take the child to have this

23 procedure.” Another ORR email cautions that Maria’s post-release social worker should not

24 work for a “religion-based agency” because of the abortion.

25

Laura

26

50. Laura, a 17-year-old placed at a short term shelter in Texas, was 17–18 weeks

27 pregnant and seeking an abortion. Because Laura was swiftly approaching her 20th week of

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1 pregnancy, after which abortion is illegal in Texas, ORR was looking to transfer her to another

2 program. ORR sought to place her somewhere on the East Coast, so she could be near her

3 brothers and sisters. One ORR official raised the possibility of transferring her to Youth for

4 Tomorrow (“YFT”), a faith-based program in Virginia. Another official rejected this possibility,

5 stating: “YFT would be unable to take this youth. YFT is a religious organization and is pro-life.

6 I just had a UAC who requested that she wanted to terminate her pregnancy and I had to transfer

7 her due to YFT position on abortion.”

8

Zoe

9

51. Zoe left her home country in January 2015, when she was roughly 16-years-old.

10 She was apprehended near the U.S. border, and she was placed in the YFT program in Virginia

11 in early 2015.

12

52. Zoe’s initial physical examination revealed that she was pregnant. Zoe told her

13 doctor that she wanted to have an abortion. After expressing her desire to terminate the

14 pregnancy multiple times for nearly two weeks, she finally received counseling. After the

15 counseling session, she reiterated her desire for an abortion.

16

53. Although Zoe was thriving at YFT, YFT asked ORR to transfer Zoe to another

17 program where she would be permitted to terminate her pregnancy.

18

Congressional Knowledge of ORR’s Grants to Religiously Affiliated Entities

19

54. Congress is aware that ORR is providing HSA and TVPRA funds to religiously

20 affiliated entities. For example, on June 25, 2014, Bishop Mark Seitz testified before the House

21 Judiciary Committee regarding USCCB’s participation in ORR’s program for the care of

22 unaccompanied children. In his testimony, Bishop Seitz recommended on behalf of USCCB that

23 “Congress appropriate $2.28 billion in Fiscal Year 2015 for care of unaccompanied children,

24 consistent with the Administration’s request.” Bishop Seitz also stated that “[a]ny funding should

25 be administered in a manner that respects the religious liberty and conscience rights of

26 organizations providing this care.” Hearing on Unaccompanied Children: H. Comm. on the

27

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Case 3:16-cv-03539 Document 1 Filed 06/24/16 Page 15 of 17

1 Judiciary, 113th Cong. 40 (2014) (statement of Rev. Mark Seitz, USCCB).4 Similarly, on

2 February 4, 2016, USCCB’s Associate Director of Children’s Services submitted testimony to

3 the House Judiciary Subcommittee on Immigration and Border Security explaining that USCCB

4 provides “short-term and long-term foster care to unaccompanied children in HHS/ORR

5 custody,” including “medical and mental health screening and care,” though “cooperative

6 agreements with HHS/ORR.” Kristyn Peck, Associate Director of Children’s Services (USCCB),

7 Testimony for the Record Before the H. Subcomm. on Immigration and Border Security of the H. 8 Judiciary Comm., 114 Cong. 117 (Feb. 4, 2016).5

9

55. A recent report by the Senate’s Permanent Subcommittee on Investigations on

10 ORR’s role in protecting unaccompanied immigrant minors states: “HHS’s [UC] program

11 functions through grants and contracts with a number of private care providers and other third

12 parties who perform daily tasks associated with [UC] placement. Those functions include

13 running shelters for children who have not yet been placed with sponsors, identifying and

14 screening potential sponsors, evaluating homes in which children will be placed, making release

15 recommendations to HHS, and providing post-release services to children. HHS awarded 56

16 grants to over 30 care providers for the [UC] program in FY 2016, including . . . the U.S.

17 Conference of Catholic Bishops.” Staff of S. Permanent Subcomm. on Investigations of the S.

18 Comm. on Homeland Security & Governmental Affairs, Protecting Unaccompanied Alien

19 Children from Trafficking and Other Abuses: The Role of the Office of Refugee Resettlement 20 (2016).6

21

22

23 4 Available at https://judiciary.house.gov/wp-content/uploads/2016/02/113-84-88437.pdf.
24 5 Available at http://docs.house.gov/meetings/JU/JU01/20160204/104402/HHRG-114-JU0125 20160204-SD001.pdf.
6 Available at http://www.hsgac.senate.gov/subcommittees/investigations/hearings/adequacy-of26 the-department-of-health-and-human-services-efforts-to-protect-unaccompanied-alien-children27 from-human-trafficking.

28 ______________________________________________________________________________

COMPLAINT

14

Case 3:16-cv-03539 Document 1 Filed 06/24/16 Page 16 of 17

1

56. In the Consolidated Appropriations Act, 2016, Pub. L No. 114-113, Congress

2 appropriated nearly $1.6 billion for ORR’s Refugee and Entrant Assistance Programs in FY2016,

3 including “for carrying out” the government’s obligations under Section 462 of the HSA and

4 Section 235 of the TVPRA.

5

CAUSE OF ACTION

6

57. Plaintiff realleges and incorporates by reference, as if fully set forth herein, the

7 allegations of paragraphs 1 through 56.

8

58. Defendants have violated and continue to violate the Establishment Clause of the

9 First Amendment by permitting USCCB and its subgrantees (such as Catholic Charities), His

10 House, Youth for Tomorrow, and similar organizations to impose religiously based restrictions

11 on the use of taxpayer funds.

12

59. Defendants’ actions alleged herein have the predominant effect of advancing a

13 particular set of religious beliefs.

14

60. Defendants’ actions alleged herein endorse a particular set of religious beliefs.

15

61. Defendants’ actions alleged herein coerce Plaintiff and its members into

16 supporting and subsidizing a particular set of religious beliefs.

17

62. Defendants’ actions alleged herein have the predominant purpose of advancing a

18 particular set of religious beliefs.

19

RELIEF REQUESTED

20

WHEREFORE, Plaintiff, on behalf of its members, respectfully requests that the Court

21 enter judgment in its favor and:

22

1. Declare, pursuant to 28 U.S.C. § 2201, that Defendants’ actions, as set forth

23 above, violate the Establishment Clause of the First Amendment to the United States

24 Constitution;

25

2. Enter a permanent injunction ordering Defendants to ensure that the HSA and

26 TVPRA grants are implemented without the imposition of religiously based restrictions;

27

3. Award costs and fees for this action, including attorneys’ fees;

28 ______________________________________________________________________________

COMPLAINT

15

Case 3:16-cv-03539 Document 1 Filed 06/24/16 Page 17 of 17

1

4. Award nominal damages;

2

5. Award such further relief as this Court deems appropriate.

3

DATED: June 23, 2016

4

ACLU FOUNDATION OF NORTHERN

CALIFORNIA, INC.

5

By: /s/ Elizabeth O. Gill

6

Elizabeth O. Gill

Attorneys for Plaintiff

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 ______________________________________________________________________________

COMPLAINT

16

 
 United States District Court Northern District of California

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

San Francisco Division

11 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA,
12 Plaintiff,
13 v.
14 SYLVIA MATHEWS BURWELL, et al.,
15 Defendants.
16

Case No. 16-cv-03539-LB
ORDER DENYING THE DEFENDANTS' MOTION TO DISMISS Re: ECF No. 20

17

INTRODUCTION

18

The ACLU of Northern California challenges financial grants that the Department of Health

19 and Human Services (“HHS”) — through the Office of Refugee Resettlement (“ORR”) — awards

20 to religious organizations to provide care for unaccompanied immigrant minors.1 By statute, the

21 government must provide for the “care and custody of all unaccompanied minor children.”2 8

22 U.S.C. § 1232(b)(1); see 6 U.S.C. § 279(b). To achieve that objective, the statute authorizes ORR 23 to make grants to organizations to care for the children.3 See 8 U.S.C. § 1232(i). ORR makes

24 grants to organizations, including religious organizations, which allegedly restrict the minors’

25

26 1 Compl. — ECF No. 1. Citations refer to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents.
27 2 See id. ¶¶ 20–22. 28 3 Id. ¶¶ 4–5.

ORDER — No. 16-cv-03539-LB

United States District Court Northern District of California

1 access to reproductive health-care services that are contrary to the organizations’ religious beliefs.4

2 The ACLU claims that the restrictions violate the Establishment Clause of the First Amendment to

3 the U.S. Constitution.5

4

The issue is whether the ACLU has Article III standing to sue the federal government. The

5 ACLU asserts taxpayer standing under Flast v. Cohen, 392 U.S. 83 (1968).6 Generally, taxpayers

6 do not have standing to sue the government, but Flast established that taxpayers may challenge a

7 statute that involves an exercise of congressional power under the taxing and spending clause on

8 the ground that it violates the Establishment Clause. Id. at 105–06. The government contends that

9 the ACLU lacks taxpayer standing because it challenges only a federal agency’s discretionary

10 award of grants and does not challenge — as Flast requires — specific congressional action.7 The

11 ACLU counters that Flast establishes its standing to challenge ORR’s grant of federal funds —

12 appropriated by Congress to carry out the government’s statutory obligation for the care and

13 custody of unaccompanied minor children — to religious organizations on the ground that the

14 money is spent in violation of the Establishment Clause.8

15

The court holds that the ACLU has taxpayer standing to raise its Establishment Clause

16 challenge to the agency’s grants to religious organizations. Congress mandated that the agency

17 provide care to unaccompanied minors, and it authorized disbursements to provide that care.

18 Under Flast, the ACLU may challenge the statute as applied.

19

20

LEGAL FRAMEWORK FOR THE CARE OF THE CHILDREN

21

The Secretary of HHS is responsible for “the care and custody of all unaccompanied alien

22 children, including responsibility for their detention, where appropriate . . . .” 8 U.S.C. §

23 1232(b)(1). An “unaccompanied alien child” is a child who (1) is under age 18, (2) has no lawful

24

25 4 See id. ¶¶ 24–25, 30–41. 26 5 Id. ¶¶ 58 ̶ 62.
6 Id. ¶ 58; see Opposition to Motion to Dismiss — ECF No. 22 at 10 ̶ 17. 27 7 Motion to Dismiss — ECF No. 20 at 10, 17–21. 28 8 Opposition at 5, 10 ̶ 11.

ORDER — No. 16-cv-03539-LB

2

United States District Court Northern District of California

1 immigration status in the United States, and (3) has no parent or legal guardian in the United

2 States available to provide care and physical custody. 6 U.S.C. § 279(g)(2). Generally, an

3 unaccompanied alien child who is in federal custody must be transferred to HHS custody within

4 72 hours. 8 U.S.C. § 1232(b)(3). Then, HHS — through ORR, which coordinates the care and

5 placement of children — must place the child in the least restrictive setting that is in the best

6 interest of the child. Id. § 1232(c)(2)(A); 6 U.S.C. § 279(b)(1)(A).

7

ORR must “ensur[e] that the interests of the child are considered in decisions and actions

8 relating to the care and custody of an unaccompanied alien child.” 6 U.S.C. § 279(b)(1)(B). It

9 must “identify[] a sufficient number of qualified individuals, entities, and facilities to house” the

10 children. Id. § 279(b)(1)(F). It must “conduct[] investigations and inspections of facilities and

11 other entities in which unaccompanied alien children reside, including regular follow-up visits to

12 such facilities, placements, and other entities to assess the continued suitability of such

13 placements.” Id. § 279(b)(1)(L).

14

The parties cite other legal requirements for the health care of the unaccompanied alien

15 children.

16

First, as required by statute, the Secretary of HHS promulgated final rules with national

17 standards for the “detection, prevention, reduction, and punishment of rape and sexual assault in

18 facilities that maintain custody of unaccompanied minor alien children. . . .” 42 U.S.C.

19 § 15607(d); see 45 C.F.R. §§ 411.91 ̶ .93. Among other things, “[if] the assessment pursuant to

20 § 411.41 indicates that a UC [unaccompanied child] experienced prior sexual victimization or

21 perpetrated sexual abuse, the care provider facility must ensure that the UC is immediately

22 referred to a qualified medical or mental health practitioner for medical and/or mental health

23 follow-up as appropriate.” 45 C.F.R. § 411.91(a). “Care provider facilities must provide UC

24 victims of sexual abuse timely, unimpeded access to emergency medical treatment, crisis

25 intervention services, emergency contraception, and sexually transmitted infections prophylaxis,

26 . . . where appropriate under medical or mental health professional standards.” Id. § 411.92(a). The

27 C.F.R. requires ongoing medical and mental-health care to children victimized by sexual abuse

28 while in ORR care and custody. Id. § 411.93(a). Also,

ORDER — No. 16-cv-03539-LB

3

United States District Court Northern District of California

1

Care provider facilities must ensure that female UC [unaccompanied children] victims of sexual abuse by a male abuser while in ORR care and custody are

2

offered pregnancy tests, as necessary. If pregnancy results from an instance of

sexual abuse, [the] care provider facility must ensure that the victim receives timely

3

and comprehensive information about all lawful pregnancy-related medical services

and timely access to all lawful pregnancy-related medical services. 4

5 Id. § 411.93(d).

6

Second, according to the complaint, “[t]he federal government is legally obligated to ensure

7 that all programs that provide care to [unaccompanied immigrant minors] comply with the

8 minimum requirements detailed in the Flores v. Reno Settlement Agreement . . . .”9 The

9 “agreement requires the government to provide or arrange for, among other things, ‘appropriate

10 routine medical . . . care,’ including specifically ‘family planning services[] and emergency health

11 care services.’”10

12

HHS “may award grants to, and enter into contracts with, voluntary agencies to carry out” the

13 requirements of 8 U.S.C. § 1232 and 6 U.S.C. § 279. 8 U.S.C. § 1232(i). The funding for the

14 grants comes from separate Congressional lump-sum appropriations.11 In 2014, 2015, and 2016,

15 Congress appropriated on average roughly $1.57 billion per year to the Administration for

16 Children and Families (“ACF”), which is the component of HHS that houses ORR.12 The

17 appropriations provide ACF with funding for the following:

18

For necessary expenses for refugee and entrant assistance activities authorized by section 414 of the Immigration and Nationality Act and section 501 of the Refugee

19

Education Assistance Act of 1980, and for carrying out section 462 of the

Homeland Security Act of 2002, section 235 of the William Wilberforce

20

Trafficking Victims Protection Reauthorization Act of 2008, the Trafficking

Victims Protection Act of 2000 (“TVPA”), section 203 of the Trafficking Victims

21

Protection Reauthorization Act of 2005, and the Torture Victims Relief Act of 1998

22

. . . .

23

24 25 9 Id. ¶ 27.
10 Id. (quoting Flores v. Reno Settlement Agreement, CV-85-4544-RJK (C.D. Cal. Jan. 17, 1997)). 26 11 Motion to Dismiss at 12 ̶ 13 (citing the Consolidated Appropriations Acts for 2014 through 2016); 27 Opposition at 7 (citing Compl. ¶ 56).
12 Motion to Dismiss at 12 ̶ 13 (citing the Consolidated Appropriations Acts for 2014 through 2016); 28 accord Opposition at 7 (citing Compl. ¶ 56 and the approximate appropriation in 2016 of $1.6 billion).

ORDER — No. 16-cv-03539-LB

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United States District Court Northern District of California

1 Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, Div. H, Tit. II, 129 Stat. 2242, 2612

2 (Dec. 18, 2015).13

3

4

STATEMENT

5 1. Unaccompanied Alien Children in Federal Custody

6

The federal government currently has thousands of unaccompanied immigrant minors in its

7 legal custody.14 Many come to the United States fleeing abuse and torture, “many have been

8 sexually abused or assaulted,” and “some have also been trafficked for labor or prostitution.”15

9 The government apprehends many near the border and apprehends others through the juvenile

10 justice system or immigration enforcement activities.16 Most minors who are referred to ORR are

11 eventually released to parents or sponsors in the United States but often are held in short-term

12 facilities or shelters while they await release.17 Others who are not released spend longer times in

13 custody and sometimes are transferred to group homes or a foster facility.18

14

15 2. Grants To Religiously Affiliated Entities

16

ORR uses a “network of ORR-funded facilities and shelters — including a number of

17 religiously affiliated entities” such as the United States Conference of Catholic Bishops

18 (“USCCB”) and others.19 “USCCB does not provide services directly to unaccompanied minors,

19 but instead issues subgrants to Catholic Charities and other organizations around the country.”20

20

21 13 See Motion to Dismiss at 12 ̶ 13 (citing the Consolidated Appropriations Acts for 2016); Comp. ¶ 56

22

(same). Section 462 of the Homeland Security Act of 2002 and Section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 created the statutory

23 mandates at issue here. Compl. ¶¶ 15, 20 ̶ 22.

14 Compl. ¶ 1.

24 15 Id.

25 16 Id. ¶ 19.

26 17 Id. ¶ 23. 18 Id.
27 19 Id. ¶ 24 (listing organizations).

28 20 Id. ¶ 25 (listing organizations).

ORDER — No. 16-cv-03539-LB

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United States District Court Northern District of California

1

The defendants “knowingly permit religiously affiliated grantees with religious objections to

2 abortion and contraception to impose restrictions on unaccompanied immigrant minors’ access to

3 these forms of reproductive healthcare.”21 The defendants

4

allow these grantees to flout . . . their [statutory, regulatory, and Flores] obligations

. . . , including by: allowing objecting programs to refuse to provide young women

5

in their care with information about, referrals for, or access to contraception and

6

abortion; transferring young women who seek access to contraception or abortion out of objecting programs; and refusing to place young women who are seeking

7

access to emergency contraception or abortion in objecting programs, even if that placement would otherwise be in the young woman’s best interest.22

8

For example, the defendants approved grants to USCCB — including nearly $10 million in 9

2014 — even though ORR knew “that USCCB’s agreement with its subgrantees explicitly 10

prohibits them from providing, referring, encouraging, or in any way facilitating access to 11
contraceptives and abortion services.”23 USCCB’s agreement prohibits the sub-grantee from 12

providing services “contrary to the authentic teaching of the Catholic Church” and prohibits the 13
facilitation of “access to contraceptives or abortion services.”24 In 2011, ORR had family-planning 14

language in its agreements, including: 15
Family planning services are already required by the Flores settlement agreement,

16

and therefore this cooperative agreement . . . . The grantees will refer female

17

[unaccompanied immigrant minors] to medical care providers who offer pregnant [unaccompanied immigrant minors] the opportunity to be provided information and

18

counseling regarding prenatal care and delivery; infant care, foster care, or adoption; and pregnancy termination.25

19

ORR removed this language because USCCB objected to “the contraception and abortion 20
requirements.”26 “USCCB has made quite clear that they refuse to provide access to these 21
reproductive healthcare services for the young people in their care.”27 22

23 21 Id. ¶ 30.
24 22 Id. 25 23 Id. ¶ 5. 26 24 Id. ¶ 35.
25 Id. ¶ 32. 27 26 Id. ¶ 33. 28 27 Id. ¶ 34.

ORDER — No. 16-cv-03539-LB

6

United States District Court Northern District of California

1

The defendants similarly approved grant applications to other religiously affiliated grantees

2 “even though the grant applications explicitly state that the grantees will not provide family

3 planning information or services to the young people in their care.”28 For example, the defendants

4 approved a direct application and awarded more than $8 million to the Catholic Charities of the

5 Archdiocese of Galveston-Houston.29 The defendants awarded these funds “despite [the

6 organization’s] explicit refusal to provide the young people in its charge with legally required

7 access to reproductive healthcare.”30 At the grantees’ request, the government also transferred to

8 other providers “young women who requested access to abortion,” which delays access to

9 services, stigmatizes women for requesting an abortion, and uproots them from their support

10 networks.31 The defendants also made “decisions about where to initially place a young person

11 based on whether she had an abortion or is seeking an abortion,” “allowing religiously affiliated

12 programs to prevent them from making a placement in the young person’s best interest.”32

13

14 3. Other Allegations in the Complaint About Unaccompanied Children

15

The complaint references four children specifically.

16

Rosa, age 17, was raped in 2014 in Mexico by one of her “guides” to the United States.33 She

17 learned that she was pregnant while in custody at Catholic Charities in Miami.34 Distraught at the

18 possibility of being denied an abortion, she was hospitalized for suicidal ideation.35 When she was

19 released, Catholic Charities and His House (another religiously affiliated ORR grantee) refused to

20

21

22 23 28 Id. ¶ 36.
29 Id. ¶¶ 37–38. 24 30 Id. ¶ 38. 25 31 Id. ¶ 39. 26 32 Id. ¶ 40.
33 Id. ¶ 42. 27 34 Id. ¶ 43. 28 35 Id.

ORDER — No. 16-cv-03539-LB

7

United States District Court Northern District of California

1 allow her into their programs because she was seeking an abortion.36 Ultimately, ORR approved

2 her request for an abortion.37

3

Maria, age 14, also was raped on her way to the United States from her home country in 2014

4 and became pregnant.38 She was placed in an ORR shelter in Texas; the agency looked into the

5 possibility of transferring her to a shelter in Florida to be near her family but was unable to do so

6 because “both of the shelters in Florida are faith-based and will not take the child to have this

7 procedure.”39 Another ORR email said that “Maria’s post-release social worker should not work

8 for a ‘religion-based agency’ because of the abortion.”40

9

Laura, age 17, was 17 or 18 weeks pregnant when she was placed at a Texas shelter; after 20

10 weeks, abortion is illegal in Texas.41 ORR sought to transfer her to the East Coast to be near her

11 brothers and sisters.42 One ORR official sought to transfer her to Youth for Tomorrow (“YFT”), a

12 faith-based program in Virginia; another official rejected that transfer, noting that the program was

13 pro-life and that he recently had to transfer someone else from there “due to YFT position on

14 abortion.”43

15

Zoe was placed at YFT in 2015, when she was roughly 16, and found out there that she was

16 pregnant.44 After counseling, she maintained her desire for an abortion.45 “Although Zoe was

17 thriving at YFT, YFT asked ORR to transfer Zoe to another program where she would be

18 permitted to terminate her pregnancy.”46

19

20 36 Id. ¶ 44.
21 37 Id. ¶¶ 45–46. 22 38 Id. ¶ 47 ̶ 48. 23 39 Id. ¶¶ 48–49.
40 Id. ¶ 49. 24 41 Id. ¶ 50. 25 42 Id. 26 43 Id.
44 Id. ¶¶ 51 ̶ 52. 27 45 Id. ¶ 52. 28 46 Id. ¶ 53.

ORDER — No. 16-cv-03539-LB

8

United States District Court Northern District of California

1 4. The Lawsuit and the Motion to Dismiss

2

The defendants are the Secretary of HHS, the Acting Assistant Secretary for ACF, and the

3 Director of ORR.47 The ACLU claims that they “violated the Establishment Clause . . . by

4 permitting USCCB and its subgrantees (such as Catholic Charities), His House, Youth for

5 Tomorrow, and similar organizations to impose religiously based restrictions on the use of

6 taxpayer funds.”48 The ACLU brings the lawsuit on behalf of its members and asserts taxpayer

7 standing because its members pay federal taxes.49

8

The defendants moved to dismiss the complaint on three grounds: (1) the ACLU lacks

9 standing as an organization; (2) it lacks taxpayer standing to sue on behalf of its members; and (3)

10 the government did not waive sovereign immunity for nominal damages.50 The ACLU opposed

11 only the second ground: whether the ACLU has taxpayer standing to sue on behalf of its

12 members.51 The court held a hearing on November 21, 2016.52

13

14

GOVERNING LAW

15

The government moves to dismiss the complaint under Federal Rule of Civil Procedure

16 12(b)(1) for lack of Article III standing and thus for lack of federal subject-matter jurisdiction.

17

18 1. Rule 12(b)(1) Standard

19

A complaint must contain a short and plain statement of the ground for the court’s jurisdiction

20 (unless the court already has jurisdiction and the claim needs no new jurisdictional support). Fed.

21 R. Civ. P. 8(a)(1). The plaintiff has the burden of establishing jurisdiction. See Kokkonen v.

22 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Farmers Ins. Exchange v. Portage La

23

24 47 Id. ¶¶ 16–18. 25 48 Id. ¶ 58. 26 49 Id. ¶ 15.
50 See Motion to Dismiss at 8–9. 27 51 See Opposition. 28 52 Minute Entry — ECF No. 24.

ORDER — No. 16-cv-03539-LB

9

United States District Court Northern District of California

1 Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990). A defendant’s Rule 12(b)(1)

2 jurisdictional attack can be either facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir.

3 2000). “A ‘facial’ attack asserts that a complaint’s allegations are themselves insufficient to

4 invoke jurisdiction, while a ‘factual’ attack asserts that the complaint’s allegations, though

5 adequate on their face to invoke jurisdiction, are untrue.” Courthouse News Serv. v. Planet, 750

6 F.3d 776, 780 n.3 (9th Cir. 2014). This is a facial attack; the court thus “accept[s] all allegations of

7 fact in the complaint as true and construe[s] them in the light most favorable to the plaintiffs.”

8 Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003); see also Chandler v.

9 State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010) (“Because standing . . .

10 pertain[s] to federal courts’ subject matter jurisdiction, [it is] properly raised in a Rule 12(b)(1)

11 motion to dismiss.”).

12

13 2. Standing Generally

14

Federal-court jurisdiction extends only to “cases” and “controversies”: “[n]o principle is more

15 fundamental to the judiciary’s proper role in our system of government than the constitutional

16 limitation of federal-court jurisdiction to actual cases or controversies.” Raines v. Byrd, 521 U.S.

17 811, 818 (1997). “Standing to sue is a doctrine rooted in the traditional understanding of a case or

18 controversy.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). The law of standing “serves to

19 prevent the judicial process from being used to usurp the powers of the political branches, and

20 confines the federal courts to a properly judicial role.” Id. (internal quotations and citations

21 omitted).

22

To establish standing, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly

23 traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a

24 favorable judicial decision.” Id. (citing Lujan v Defenders of Wildlife, 504 U.S. 555, 560 (1992)).

25 An association has standing to sue on behalf of its members when “[(1)] its members would

26 otherwise have standing to sue in their own right, [(2)] the interests at stake are germane to the

27 organization’s purpose, and [(3)] neither the claim asserted nor the relief requested requires the

28 participation of individual members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl.

ORDER — No. 16-cv-03539-LB

10

United States District Court Northern District of California

1 Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). As the party invoking the court’s jurisdiction, the

2 plaintiff has the burden of establishing standing. Spokeo, 136 S. Ct. at 1547.

3

4

ANALYSIS

5

The parties agree that the ACLU does not have traditional Article III standing. But they

6 dispute whether it has taxpayer standing to sue because its members pay federal taxes. The

7 government argues that the ACLU is challenging executive action, not congressional action, and

8 thus lacks taxpayer standing, which requires a nexus to a specific congressional statute.53 The

9 ACLU responds that it has taxpayer standing to challenge an agency’s disbursement of funds to

10 fulfill its statutory mandate.54 The court holds that the ACLU has taxpayer standing to challenge

11 the agency’s disbursement of funds as an Establishment Clause violation.

12

Generally, a person cannot sue the government — as a citizen or a taxpayer — based on a

13 generalized grievance that the government is not following the law. Thus, a person cannot

14 establish standing by claiming a right to have the government follow the law. Ex parte Leavitt,

15 302 U.S. 633, 634 (1937). And generally, a federal taxpayer’s interest “in seeing that Treasury

16 funds are spent in accordance with the Constitution does not give rise to the kind of redressable

17 ‘personal injury’ required for Article III standing.” Hein v. Freedom from Religion Found., Inc.,

18 551 U.S. 587, 599 (2007); see Frothingham v. Mellon, 262 U.S. 447, 487 (1923). In Frothingham,

19 for example, the plaintiff — suing as a taxpayer — challenged expenditures under a federal statute

20 providing grants to states to reduce maternal and infant mortality. 262 U.S. at 479, 487. This was

21 not direct injury sufficient to confer standing and instead was merely an allegation that the

22 plaintiff “suffers in some indefinite way in common with the people generally.” Id. at 488–89.

23

Flast v. Cohen defined an exception to this rule by holding that a taxpayer had standing to

24 challenge federal subsidies to parochial schools as a violation of the Establishment Clause. 392

25 U.S. at 102–03, 105–06. A taxpayer must establish two factors to sue as a taxpayer:

26

27 53 Reply — ECF No. 23 at 7. 28 54 Opposition at 11.

ORDER — No. 16-cv-03539-LB

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United States District Court Northern District of California

First, the taxpayer must establish a logical link between that status and the type of

1

legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the

unconstitutionality only of exercises of congressional power under the taxing and

2

spending clause of Art. I, § 8, of the Constitution. It will not be sufficient to allege

an incidental expenditure in the administration of an essentially regulatory statute.

3

. . . Secondly, the taxpayer must establish a nexus between that status and the

precise nature of the constitutional infringement alleged. Under this requirement,

4

the taxpayer must show that the challenged enactment exceeds specific

constitutional limitations imposed upon the exercise of the congressional taxing

5

and spending power and not simply that the enactment is generally beyond the

powers delegated to Congress by Art. I, § 8. 6

7 Id. at 102–03. Thus, a taxpayer has Article III standing “when he alleges that congressional action

8 under the taxing and spending clause is in derogation of those constitutional provisions [such as

9 the Establishment Clause] which operate to restrict the exercise of the taxing and spending

10 power.” Id. at 105–06.

11

In Flast, federal taxpayers challenged federal subsidies to parochial schools under the

12 Elementary and Secondary Education Act of 1965. Id. at 85–88. Title I of the Act “establishe[d] a

13 program for financial assistance to local educational agencies for the education of low-income

14 families.” Id. at 86. Title II “establishe[d] a program of federal grants for the acquisition of school

15 library resources, textbooks, and other printed and published instructional materials ‘for the use of

16 children and teachers in public and private elementary and secondary schools.’” Id. at 86–87. The

17 taxpayers complained that federal funds appropriated under the Act were financing educational

18 instruction and materials in religious schools. Id. at 85–86. This complaint satisfied the two-prong

19 test: first, the challenge was “made to an exercise by Congress of its power under Art. I, § 8, to

20 spend for the general welfare”; and second, the taxpayers “alleged that the challenged

21 expenditures violate[d] the Establishment . . . Clause[].” Id. at 103. The plaintiffs thus had

22 standing as taxpayers to sue. Id. at 106.

23

Flast governs the analysis here. The statute in Flast and the statutory scheme here both are

24 neutral on their faces; neither mentions religion. Thus, both cases involve challenges to the

25 statutes as applied. The ACLU — based on its members’ status as taxpayers — challenges the

26 exercise of congressional power under its taxing and spending power and thus meets the first Flast

27 factor. It also meets the second Flast factor because it challenges a federal agency’s disbursement

28 of funds pursuant to the challenged statute as a violation of the Establishment Clause. Similarly,

ORDER — No. 16-cv-03539-LB

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United States District Court Northern District of California

1 the Flast taxpayers challenged a federal agency’s disbursement of funds under the challenged

2 statute to state agencies, which granted funds to local agencies, which in turn funded educational

3 instruction and materials in religious schools. Flast, 392 U.S. at 90–91, 103 n.23.

4

Subsequent Supreme Court cases do not change this outcome. Generally, they limit the

5 application of the Flast exception to the facts in Flast, meaning, taxpayers can challenge

6 government expenditures pursuant to statutes under the taxing and spending clause as violations of

7 the Establishment Clause. See Hein, 551 U.S. at 609. Which is what the ACLU challenges here.

8

For example, in Valley Forge Christian College v. Americans United for Separation of Church

9 and State, Inc., the Court denied taxpayer standing to plaintiffs who challenged an agency’s

10 transfer of real property to a religious school as a violation of the Establishment Clause. 454 U.S.

11 464, 466–70, 477–82 (1982). Valley Forge involved a federal statute that allowed the government

12 to transfer surplus property that outlived its usefulness to other public or private entities and

13 specifically allowed the Department of Health, Education, and Welfare to “assume responsibility

14 for disposing of surplus real property ‘for school, classroom, or other educational use.’” Id. at

15 466–67. The agency gave land valued at $577,500 to Valley Forge Christian College. Id. at 468.

16 The Court denied standing for two reasons. First, the plaintiffs challenged executive action, not an

17 exercise of congressional power. Id. at 479. “Flast limited taxpayer standing to challenges directed

18 ‘only [at] exercises of congressional power.’” Id. (quoting Flast, 392 U.S. at 102 and citing

19 Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 228 (1974)). Second, the

20 challenged government action was an exercise of authority under the property clause, Article IV, §

21 3, and was not — as in Flast — an exercise of authority under the taxing and spending clause,

22 Article I, § 8. Id. at 480.

23

Unlike Valley Forge, and like Flast, this case is a direct challenge to an agency’s disbursement

24 of funds pursuant to a congressional mandate under the taxing and spending clause as an

25 Establishment Clause violation.

26

In Bowen v. Kendrick, the Supreme Court reaffirmed a taxpayer’s standing to challenge

27 government grants under a federal statute — the Adolescent Family Life Act — as a violation of

28 the Establishment Clause. 487 U.S. 589, 620 (1988). The statute provided grants to public or

ORDER — No. 16-cv-03539-LB

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United States District Court Northern District of California

1 nonprofit agencies for the care and prevention of adolescent pregnancy. Id. at 593. HHS had

2 discretion to define the services a grantee must provide, but the statute listed “‘necessary services’

3 that may be funded,” such as “pregnancy testing and maternity counseling, adoption counseling

4 and referral services, . . . [and] educational services relating to family life and problems associated

5 with adolescent premarital sexual relations.” Id. at 594 (quotations omitted). The statute

6 mentioned four times the role that religious organizations could play to accomplish the statute’s

7 goals. Id. at 606. In considering whether the statute was unconstitutional as applied,55 the Court

8 held that the taxpayers had standing because the statute was “at heart a program of disbursement

9 of funds pursuant to Congress’ taxing and spending powers, and [the plaintiffs’] claims call[ed]

10 into question how the funds authorized by Congress [were] being disbursed pursuant to the

11 statutory mandate.” Id. at 619–20.

12

The government distinguishes Kendrick, arguing that the ACLU challenges executive action

13 only and thus falls outside of the narrow Flast exception, which requires a challenge to

14 congressional action. But in Kendrick, the Court rejected the government’s argument that the

15 lawsuit fell outside of Flast because the plaintiffs were challenging executive action. The

16 plaintiffs’ case was not “any less a challenge to congressional taxing and spending power simply

17 because the funding authorized by Congress has flowed through and been administered by the

18 [agency].” Id. at 619. “Indeed, Flast itself was a lawsuit against . . . [an agency that] had been

19 given the authority under the challenged statute to administer the spending program that Congress

20 had created.” Id. Here, too, the ACLU challenges funding authorized by Congress that flows

21 through an agency, which administers it pursuant to its congressional mandate to provide for the

22 custody and care of unaccompanied children.

23

The Court’s plurality opinion in Hein v. Freedom from Religion Foundation, Inc. gives more

24 insight into the difference between a challenge to executive action that falls outside of Flast and a

25 challenge to an agency’s administration of funds pursuant to a congressional mandate. 551 U.S.

26 587 (2007). In Hein, the Court denied taxpayer standing to challenge President Bush’s Faith-

27

28 55 The statute had a valid secular purpose and thus was not unconstitutional on its face. Id. at 617 ̶ 18.

ORDER — No. 16-cv-03539-LB

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United States District Court Northern District of California

1 Based and Community Initiatives program as an Establishment Clause violation, holding that the

2 plaintiffs challenged only executive action. Id. at 592, 608.

3

By executive order, President Bush created a White House office for the program “to ensure

4 that ‘private and charitable community groups, including religious ones . . . have the fullest

5 opportunity permitted by law to compete on a level playing field.’” Id. at 593–94 (quoting Exec.

6 Order No. 13199, 3 CFR 752 (2001 Comp.)). He “also created Executive Department Centers for

7 Faith-Based and Community Initiatives within several federal agencies and departments.” Id. at

8 594. “No congressional legislation specifically authorized the creation of the White House Office

9 or the Executive Department Centers.” Id. at 595. And Congress did not specifically appropriate

10 money for the entities’ activities; “their activities [were] funded through general Executive Branch

11 appropriations.” Id.

12

In a plurality opinion, Justice Alito — joined by Chief Justice Roberts and Justice Kennedy —

13 concluded that the plaintiffs lacked standing and distinguished Flast: “The expenditures at issue in

14 Flast were made pursuant to [(1)] an express congressional mandate and [(2)] a specific

15 congressional appropriation.” Id. at 603. By contrast, the White House funded its initiative by

16 general Executive Branch appropriations for day-to-day activities (and not by expenditures made

17 pursuant to an act of Congress). Id. at 605. The opinion explained:

18

The link between congressional action and constitutional violation that supported

taxpayer standing in Flast is missing here. Respondents do not challenge any

19

specific congressional action or appropriation; nor do they ask the Court to

20

invalidate any congressional enactment or legislatively created program as unconstitutional. That is because the expenditures at issue here were not made

21

pursuant to any Act of Congress. Rather, Congress provided general appropriations

to the Executive Branch to fund its day-to-day activities. These appropriations did

22

not expressly authorize, direct, or even mention the expenditures of which

respondents complain. Those expenditures resulted from executive discretion, not

23

congressional action.

24 Id. at 605.

25

Justice Alito also explained that Kendrick — where the Court found a sufficient nexus

26 between taxpayer standing and congressional exercise of the taxing and spending power, even

27 though the Congressional funding flowed through and was administered by an agency — did not

28

ORDER — No. 16-cv-03539-LB

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United States District Court Northern District of California

1 compel a different result. Id. at 607. The key to the outcome there was the Court’s recognition that

2 the statute was “‘at heart a program of disbursement of funds pursuant to Congress’ taxing and

3 spending powers,’ and that the plaintiffs’ claims ‘call[ed] into question how the funds authorized

4 by Congress [were] being disbursed pursuant to the . . . statutory mandate.” Id. (quoting Kendrick,

5 487 U.S. at 619–20) (emphasis in original). The act there “not only expressly authorized and

6 appropriated specific funds for grantmaking, it also expressly contemplated that some of those

7 moneys might go to projects involving religious groups.” Id. Unlike the White House initiative,

8 Kendrick “involved a ‘program of disbursement of funds pursuant to Congress’ taxing and

9 spending powers’ that ‘Congress had created,’ ‘authorized,’ and ‘mandate[d].’” Id. (quoting

10 Kendrick, 487 U.S. at 619–20). By contrast, the plaintiffs in Hein could “cite no statute whose

11 application they challenge[d]. The best they [could] do [was] to point to unspecified, lump-sum

12 ‘Congressional budget appropriations’ for the general use of the Executive Branch.” Id. at 607–08.

13

In sum, because the allocation of those general appropriations was committed to agency

14 discretion, the plaintiffs lacked standing to challenge the expenditure of funds from general

15 executive revenue as an Establishment Clause violation. Id. at 608–09. The opinion emphasized

16 that the Flast exception “has a narrow application in our precedent, that only slightly lowered the

17 bar on taxpayer standing, and that must be applied with rigor.” Id. at 609 (internal citations and

18 quotations omitted).

19

In contrast to the taxpayers in Hein, and like the taxpayers in Flast, the ACLU challenges

20 expenditures made pursuant to an express congressional mandate — to provide for the care and

21 custody of all unaccompanied minor children — and a specific congressional appropriation to

22 carry out that mandate. See id. at 603. The statutory scheme is “at heart” an exercise of Congress’s

23 taxing and spending power. Id. at 607. Because ORR makes grants under that statutory mandate,

24 the ACLU — through its taxpayer members — has standing.

25

The government distinguishes the statutory schemes in Flast and Kendrick on the ground that

26 in both cases, Congress knew that the statute’s intended beneficiaries were religious

27

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ORDER — No. 16-cv-03539-LB

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United States District Court Northern District of California

1 organizations.56 In Flast, “private schools” were predominately religious schools. See Hein, 551

2 U.S. at 604, n.3. And in Bowen v. Kendrick, the statute mentioned the role that religious

3 organizations might play and — as Justice Alito said in Hein — the Act contemplated that money

4 might go to projects involving religious groups. Id. at 607.

5

This argument does not change the outcome. It is not apparent here that religious organizations

6 are not intended beneficiaries. The ACLU alleges Congress’s knowledge that funds go to religious

7 organizations;57 it appears reasonably understood that grants might find their way to religious

8 organizations. See id. at 604 n.3 (discussing Flast). Moreover, regardless of the Hein plurality’s

9 characterization about religious organizations as beneficiaries, Hein leaves Flast intact: “the

10 present case does not require us to reconsider that precedent. . . . We do not extend Flast, but we

11 also do not overrule it. We leave Flast as we found it.” Id. at 614 ̶ 15. Viewing the plurality and 12 dissenting opinions as a whole, Flast remains the standard58 and establishes that the ACLU has

13 taxpayer standing. Id. at 603, 607.

14

Finally, a taxpayer may challenge statutes as applied if they create, authorize, and mandate the

15 challenged disbursement program. See id. at 607 (discussing Kendrick). One more plausibly reads

16 Hein as reinforcing Flast as a narrow rule that permits taxpayer challenges only to statutes that are

17 an exercise of Congress’s spending power and to challenges — like the challenge here to ORR’s

18 grants — to an agency’s use of specifically appropriated funds to satisfy Congress’s statutory

19 mandate. See ACLU of Massachusetts v. Sebelius, 697 F. Supp. 2d 200, 210 (2010) (holding that

20 the Trafficking Victims Protection Act is “at heart a program of disbursement of funds pursuant to

21 Congress’ taxing and spending powers, and [plaintiff’s] claims call into question how the funds

22

23

24 56 See Motion to Dismiss at 19 ̶ 21; Reply at 8 ̶ 12.
25 57 Compl. ¶¶ 54 ̶ 55. 26 58 Justice Scalia — joined by Justice Thomas — wrote that either Flast “should be applied to (at a
minimum) all challenges to the governmental expenditure of general tax revenues in a manner alleged 27 to violate a constitutional provision specifically limiting the taxing and spending power, or Flast
should be repudiated.” Id. at 618 (emphasis in original). He would repudiate Flast as inconsistent with 28 Article III restrictions embodied in the doctrine of standing. Id.

ORDER — No. 16-cv-03539-LB

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United States District Court Northern District of California

1 authorized by Congress are being disbursed pursuant to the . . . statutory mandate”), vacated as

2 moot, 705 F.3d 44 (1st Cir. 2013).

3

The government points to post-Hein circuit cases that narrowly apply taxpayer standing when

4 the statutes did not authorize disbursement of funds to support religious activity.59 The cases do

5 not alter the court’s conclusion. In the cases — and by contrast to the lawsuit here — the

6 challenged statutes did not contemplate or mandate disbursement of funds that supported religious

7 organizations.

8

For example, Murray v. U.S. Dep’t of Treasury involved a taxpayer’s challenge to the

9 Treasury Department’s use of TARP funds to bail out the financial institution AIG after the 2008

10 financial crisis. 681 F.3d 744, 745 ̶ 47 (6th Cir. 2012). AIG had Sharia-compliant financing

11 products; the taxpayer challenged the bail-out as a violation of the Establishment clause. Id. at

12 746 ̶ 47. The court held that the statute did not expressly contemplate disbursement of

13 congressional appropriations to support religious programs and that there was no reasonable

14 inference that the regulatory responsibilities had a religious nexus. Id. at 751 ̶ 52.

15

In In re Naval Chaplaincy, Protestant chaplains alleged that the Navy operated its retirement

16 system to favor Catholic chaplains. 534 F.3d 756, 758 (D.C. Cir. 2008). The legislation

17 established the chaplaincy but made no reference to denomination and did not authorize or

18 mandate the salary and retirement benefits. Id. at 762. Similarly, in Freedom From Religion

19 Found., Inc. v. Nicholson, the plaintiff challenged aspects of the VA’s Chaplain Service. 536 F.3d

20 730, 733 (7th Cir. 2008). It conceded that chaplains could perform religious activities but

21 challenged the chaplains’ clinical focus, the VA’s spiritual assessments of its patients, its

22 provision of pastoral care to outpatients, and its integration of spirituality and religion into

23 treatment programs. Id. The Seventh Circuit rejected the challenge because — while Congress

24 mandated that the VA provide medical care to eligible veterans — the statute did not authorize or

25 direct the specific expenditures. Id. at 741–42.

26

27

28 59 Motion to Dismiss — ECF No. 20 at 20 ̶ 21.

ORDER — No. 16-cv-03539-LB

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 Case 3:16-cv-03539-LB Document 55 Filed 02/01/17 Page 1 of 8

1 ELIZABETH O. GILL (SBN 218311)
JENNIFER L. CHOU (SBN 304838)
2 AMERICAN CIVIL LIBERTIES UNION FOUNDATION
OF NORTHERN CALIFORNIA, INC.
3 39 Drumm Street
San Francisco, CA 94111
4 T: (415) 621-2493
F: (415) 255-8437
5 Email: egill@aclunc.org
Email: jchou@aclunc.org
6
BRIGITTE AMIRI (pro hac vice)
7 BRIAN HAUSS (SBN 284759)
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
8 125 Broad Street, 18th Floor
New York, New York 10004
9 T: (212) 549-2633
F: (212) 549-2652
10 Email: bamiri@aclu.org
Email: bhauss@aclu.org
11
Attorneys for Plaintiff
12 [ADDITIONAL COUNSEL ON FOLLOWING PAGE]

13
UNITED STATES DISTRICT COURT
14
NORTHERN DISTRICT OF CALIFORNIA
15
SAN FRANCISCO DIVISION
16

17 AMERICAN CIVIL LIBERTIES UNION OF )

NORTHERN CALIFORNIA,
18

) ) Case No. 3:16-cv-3539-LB

19

Plaintiff,

) ) PLAINTIFF’S NOTICE OF MOTION

20 v.

) AND MOTION FOR LEAVE TO FILE ) AMENDED COMPLAINT

21 SYLVIA MATHEWS BURWELL, Secretary )

of Health and Human Services; MARK

) Date:

22 GREENBERG, Acting Assistant Secretary for ) Time:

March 9, 2017 9:30 a.m.

23

Administration for Children and Families; ROBERT CAREY, Director of Office of

) Location: ) Judge:

Courtroom C Hon. Laurel Beeler

24 Refugee Resettlement, in their official

)

capacities,

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Defendants.

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28 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,
PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE AMENDED COMPLAINT, CIVIL NO. 3:16-CV-3539-LB

Case 3:16-cv-03539-LB Document 55 Filed 02/01/17 Page 2 of 8

1 MELISSA GOODMAN (SBN 289464)

2

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA

3

1313 West 8th Street Los Angeles, CA 90017

4

T: (213) 977-9500 F: (213) 977-5299

5 Email: mgoodman@aclusocal.org

6

DANIEL MACH (pro hac vice) AMERICAN CIVIL LIBERTIES UNION FOUNDATION

7

915 15th Street NW Washington, DC 20005

8

T: (202) 675-2330 Email: dmach@aclu.org

9 Attorneys for Plaintiff

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CIVIL NO. 3:16-CV-3539-LB

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NOTICE OF MOTION AND MOTION

2 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

3

PLEASE TAKE NOTICE that on March 9, 2017, at 9:30 a.m. or as soon thereafter as it

4 may be heard before the Honorable Laurel Beeler of the United States District Court for the

5 Northern District of California, Plaintiff will, and hereby does, move the Court pursuant to

6 Federal Rule of Civil Procedure 15(a)(2), for leave to file an Amended Complaint. This motion

7 is based on the Memorandum of Points and Authorities submitted herewith, all pleadings and

8 filings filed in this action, and such oral arguments and evidence as may be presented at the

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______________________________________________________________________________ AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,

PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE AMENDED COMPLAINT,

CIVIL NO. 3:16-CV-3539-LB

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Case 3:16-cv-03539-LB Document 55 Filed 02/01/17 Page 4 of 8

1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3

Plaintiff moves for leave to file an Amended Complaint to allege newly discovered facts

4 regarding Defendants’ authorization of religious restrictions on government-provided services to

5 survivors of human trafficking. Defendants do not object to Plaintiff’s motion to file the

6 proposed Amended Complaint, attached as Exhibit A.

7

After Plaintiff filed its initial complaint, it received information pursuant to a Freedom of

8 Information Act (FOIA) lawsuit indicating Defendants provided a grant to the U.S. Conference

9 of Catholic Bishops (USCCB), and allowed USCCB to impose restrictions on reproductive

10 health care provided to human trafficking victims, and to make subgrants only to organizations

11 that shared their religious opposition to certain reproductive health care. The authorizing statutes

12 and sources of federal funding for Defendants’ human trafficking victims program are

13 substantially similar to—and in many instances, the same as—those at issue in Defendants’

14 unaccompanied immigrant minor program. Rather than engaging in duplicative litigation over

15 virtually identical questions of law and facts, Plaintiff moves to amend its initial complaint in the

16 instant case.

17

Leave to amend must be “freely given” unless it is clear that the proposed amendment is

18 brought after undue and unexplained delay; is offered in bad faith; would be futile; or would be

19 prejudicial to the other parties. See Fed. R. Civ. P. 15(a)(2); Foman v. Davis, 371 U.S. 178, 182

20 (1962). None of those factors apply here. Therefore, in order to promote judicial efficiency and

21 ensure meaningful relief, the Court should grant Plaintiff’s motion for leave to amend its

22 complaint.

23 II. BACKGROUND AND FACTS

24

On June 24, 2016, Plaintiff filed this action to challenge Defendants’ authorization of

25 religiously motivated restrictions on access to reproductive health care for unaccompanied

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______________________________________________________________________________ AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,

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Case 3:16-cv-03539-LB Document 55 Filed 02/01/17 Page 5 of 8

1 immigrant minors (also known as unaccompanied children, or “UC”) in the custody of the U.S.

2 Office of Refugee Resettlement (ORR). See ECF No. 1.

3

After filing its complaint, Plaintiff received information in response to a FOIA lawsuit

4 about Defendants’ grant to USCCB to provide services for trafficking victims. See Declaration of

5 Brigitte Amiri (Amiri Decl.) ¶ 4. These documents show that, as with Defendants’ actions in the

6 UC program, Defendants’ trafficking victims program also authorizes USCCB to impose

7 religious restrictions on reproductive health care for the survivors of trafficking who access their

8 program. Id. ¶ 6. Defendants have also allowed USCCB to provide subgrants based on religious

9 criteria. Plaintiff now seeks to amend its complaint to allege additional facts regarding the extent

10 of Defendants’ authorization of religious restrictions on the use of taxpayer funds.

11

Defendants do not object to Plaintiff’s motion to amend its complaint. Id. ¶ 8.

12 III. ARGUMENT

13

Federal Rule of Civil Procedure 15(a)(2) states that courts “should freely give leave [to

14 amend a pleading] when justice so requires.” The Supreme Court has held that leave to amend

15 must be permitted unless there is an “apparent or declared reason for denial.” Foman, 371 U.S. at

16 182; see also Sonoma Cty. Ass’n of Retired Emps. v. Sonoma Cty., 708 F.3d 1109, 1117 (9th Cir.

17 2013) (leave to amend must be applied with “extreme liberality”) (quoting Owens v. Kaiser

18 Found. Health Plan, Inc., 244 F3d. 708, 712 (9th Cir. 2001)). The party seeking to amend need

19 only establish the reason why justice so requires the amendment, and the party opposing the

20 amendment bears the burden of demonstrating otherwise. See DCD Programs, Ltd. v. Leighton,

21 833 F.2d 183, 187 (9th Cir. 1987). All inferences must be drawn in favor of the moving party.

22 Griggs v. Pace Am. Grp. Inc., 170 F.3d 877, 880 (9th Cir. 1999).

23

In making a determination about whether to grant leave to amend, courts must look for

24 “strong evidence” of the following factors: (1) undue delay; (2) bad faith or dilatory motive on

25 the part of the movant; (3) repeated failure to cure deficiencies by amendments previously

26 allowed, (4) futility of amendment, or (5) undue prejudice to the opposing party by virtue of

27

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______________________________________________________________________________ AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,

PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE AMENDED COMPLAINT,

CIVIL NO. 3:16-CV-3539-LB

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Case 3:16-cv-03539-LB Document 55 Filed 02/01/17 Page 6 of 8

1 allowance of the amendment. Sonoma Cty. Ass’n of Retired Emps., 708 F.3d at 1117. None of

2 these factors applies here.

3

A. Plaintiff Has Not Unduly Delayed in Bringing This Motion.

4

Plaintiff’s Amended Complaint is timely and should be allowed. The facts Plaintiff now

5 seeks to amend into the complaint were not known at the time the initial complaint was filed on

6 June 24, 2016. Between March and August 2016, the ACLU received documents in response to a

7 FOIA lawsuit that indicated that Defendants had awarded another multi-million dollar grant to

8 USCCB to care for human trafficking victims. After receipt of thousands of pages of responsive

9 materials, Plaintiff’s counsel endeavored to carefully review them and undertook additional

10 factual investigation. Amiri Decl. ¶¶ 4-5. Plaintiff moves to amend the complaint now, at an

11 early stage in the litigation but after the motion to dismiss was adjudicated. This motion comes

12 before Defendants’ answer to the complaint is due and before parties begin discovery.

13

B. Plaintiff Seeks to Amend Its Complaint in Good Faith.

14

Plaintiff seeks to amend its complaint to avoid the cost, waste, and delay of duplicative

15 litigation over similar facts with the same parties and the same questions of law. The proposed

16 amendments address the same concern as the original Complaint (i.e., Defendants’ violation of

17 the Establishment Clause by authorizing religious restrictions on reproductive health care for

18 vulnerable populations in government-funded programs) against the same Defendants and raises

19 the same causes of action and legal theories. Even beyond the significant factual similarities

20 between the ways in which Defendants’ unaccompanied immigrant minor program and

21 trafficking victims program are administered, they share some of the same funding streams and

22 authorizing statutes. If leave is not granted, Plaintiff will be forced to bring a separate action to

23 address the government-authorized religious restrictions being placed on services provided to

24 trafficking victims. This is precisely the type of inefficient and piecemeal litigation that the

25 Federal Rules are intended to avoid.

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______________________________________________________________________________ AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,

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CIVIL NO. 3:16-CV-3539-LB

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Case 3:16-cv-03539-LB Document 55 Filed 02/01/17 Page 7 of 8

1

C. Amendment Will Not Be Futile.

2

In assessing futility, courts apply the same standard governing a Rule 12(b)(6) motion to

3 dismiss and a proposed amendment is futile only if it does not “contain sufficient factual matter,

4 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

5 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Here,

6 the additional facts Plaintiff seeks to amend to the complaint are amply supported by the FOIA

7 documents Plaintiff received from Defendants themselves.

8

D. Plaintiff Has Not Failed to Cure Deficiencies by Previous Amendments.

9

Defendants have not identified any deficiencies with Plaintiff’s complaint; nor has

10 Plaintiff previously attempted to amend the complaint. This factor, therefore, has no application

11 here.

12

E. Defendants Will Not Be Unduly Prejudiced by Plaintiff’s Proposed

13

Amendment.

14

To justify denial of leave to amend, prejudice to Defendants must be substantial. See

15 Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). Defendants

16 have stated they do not oppose Plaintiff’s motion to amend its complaint; therefore, it cannot be

17 the case that Plaintiff’s proposed amendments would unduly prejudice Defendants, let alone

18 substantially. The additional facts Plaintiff seeks to amend to the complaint would not “radically

19 shift” the nature of the case, relating as they do to the same Defendants, overlapping statutory

20 sources of federal funding, and the same constitutional question of whether Defendants’ actions

21 violate the Establishment Clause. See id. (denying leave to amend where new RICO claim

22 “would have required defendants to [undertake] . . . an entirely new course of defense”).

23 Plaintiff’s proposed amendments also do not significantly expand the scope of discovery. The

24 additional facts Plaintiff is proposing to add—like the facts alleged in Plaintiff’s initial

25 complaint—are grounded in documents that the ACLU received from Defendants in response to

26 a FOIA lawsuit.

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______________________________________________________________________________ AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,

PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE AMENDED COMPLAINT,

CIVIL NO. 3:16-CV-3539-LB

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Case 3:16-cv-03539-LB Document 55 Filed 02/01/17 Page 8 of 8

1 IV. CONCLUSION

2

This Court should grant Plaintiff leave to amend its complaint because such leave must

3 be “freely given,” the amendment is timely and proposed in good faith, and Defendants will not

4 be prejudiced by Plaintiff’s proposed amendment.

5

6 Dated: February 1, 2017

Respectfully submitted,

7

By: /s/ Brigitte Amiri ________

8

Brigitte Amiri*

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Attorney for Plaintiff

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* Appearing pro hac vice

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______________________________________________________________________________ AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,

PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE AMENDED COMPLAINT,

CIVIL NO. 3:16-CV-3539-LB

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Case 3:16-cv-03539-LB Document 55-1 Filed 02/01/17 Page 1 of 4

1 ELIZABETH O. GILL (SBN 218311)
JENNIFER L. CHOU (SBN 304838)
2 AMERICAN CIVIL LIBERTIES UNION FOUNDATION
OF NORTHERN CALIFORNIA, INC.
3 39 Drumm Street
San Francisco, CA 94111
4 T: (415) 621-2493
F: (415) 255-8437
5 Email: egill@aclunc.org
Email: jchou@aclunc.org
6
BRIGITTE AMIRI (pro hac vice)
7 BRIAN HAUSS (SBN 284759)
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
8 125 Broad Street, 18th Floor
New York, New York 10004
9 T: (212) 549-2633
F: (212) 549-2652
10 Email: bamiri@aclu.org
Email: bhauss@aclu.org
11
Attorneys for Plaintiff
12 [ADDITIONAL COUNSEL ON FOLLOWING PAGE]

13
UNITED STATES DISTRICT COURT
14
NORTHERN DISTRICT OF CALIFORNIA
15
SAN FRANCISCO DIVISION
16

17 AMERICAN CIVIL LIBERTIES UNION OF )

NORTHERN CALIFORNIA,
18

) ) Case No. 3:16-cv-3539-LB

19

Plaintiff,

) ) DECLARATION OF BRIGITTE

20 v.

) AMIRI IN SUPPORT OF PLAINTIFF’S ) MOTION FOR LEAVE TO FILE

21 SYLVIA MATHEWS BURWELL, Secretary ) AMENDED COMPLAINT

of Health and Human Services; MARK

)

22 GREENBERG, Acting Assistant Secretary for )

23

Administration for Children and Families; ROBERT CAREY, Director of Office of

) )

24 Refugee Resettlement, in their official

)

capacities,

)

25

)

Defendants.

)

26

)

27

28 ______________________________________________________________________________
AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL., DECLARATION OF BRIGITTE AMIRI, CIVIL NO. 3:16-CV-3539-LB

Case 3:16-cv-03539-LB Document 55-1 Filed 02/01/17 Page 2 of 4

1 MELISSA GOODMAN (SBN 289464)

2

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA

3

1313 West 8th Street Los Angeles, CA 90017

4

T: (213) 977-9500 F: (213) 977-5299

5 Email: mgoodman@aclusocal.org

6

DANIEL MACH (pro hac vice) AMERICAN CIVIL LIBERTIES UNION FOUNDATION

7

915 15th Street NW Washington, DC 20005

8

T: (202) 675-2330 Email: dmach@aclu.org

9 Attorneys for Plaintiff

10

11

12

13 14 15 16

17

18

19 20 21 22

23

24

25

26
27
28 ______________________________________________________________________________
AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL., DECLARATION OF BRIGITTE AMIRI, CIVIL NO. 3:16-CV-3539-LB

0

Case 3:16-cv-03539-LB Document 55-1 Filed 02/01/17 Page 3 of 4

1 I, Brigitte Amiri, declare as follows:

2

1. I am a Senior Staff Attorney at the American Civil Liberties Union Foundation

3 and counsel for Plaintiff in the above captioned matter. I have personal knowledge of the facts

4 stated in this declaration and I could and would testify competently to them, if called to do so.

5

2. At the time Plaintiff filed the complaint in this case, it did not have sufficient

6 information regarding Defendants’ contract with the U.S. Conference of Catholic Bishops

7 (USCCB) for the care of human trafficking victims to then include the facts and claims it now

8 seeks to add.

9

3. On November 13, 2015, the ACLU sent a Freedom of Information Act (FOIA)

10 request to Defendants for documents relating to its human trafficking victims program.

11 Subsequently, on March 17, 2016, the ACLU filed a lawsuit compelling Defendants to produce

12 documents pursuant to its FOIA request. ACLU v. Admin. for Children and Families, No. 1:16-

13 cv-01987 (S.D.N.Y. Mar. 17, 2016).

14

4. Between March 18 and August 26, 2016, the ACLU received over two thousand

15 pages of documents from Defendants in response to its FOIA lawsuit.

16

5. After receipt of these responsive materials, Plaintiff’s counsel undertook a careful

17 review of their contents and conducted additional factual investigation.

18

6. These documents showed that Defendants had provided a grant to USCCB to

19 provide care for human trafficking victims, and that in the context of this particular federal

20 program, Defendants were allowing USCCB to object—on religious grounds—to providing

21 certain assistance to same-sex couples as well as legally required reproductive health care and

22 services to survivors of human trafficking. They also showed that Defendants allowed USCCB to

23 subgrant only to entities that shared their religious opposition to reproductive health care access

24 and certain assistance to same-sex couples.

25

7. After the court denied Defendants’ motion to dismiss on November 26, 2016, in

26 the context of preparing the joint case management order, I indicated to Mr. Phipps that Plaintiff

27 would likely seek to amend the complaint to add allegations about the trafficking contract.

28 ______________________________________________________________________________
AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,
DECLARATION OF BRIGITTE AMIRI, CIVIL NO. 3:16-CV-3539-LB

1

Case 3:16-cv-03539-LB Document 55-1 Filed 02/01/17 Page 4 of 4

1

8. On January 11, 2017, I emailed Mr. Phipps to ask if Defendants would be willing

2 to stipulate to Plaintiff’s filing an amended complaint. I included in the email a redlined copy of

3 Plaintiff’s proposed amended complaint. He responded on January 31, indicating that Defendants

4 do not object to Plaintiff’s motion to amend its complaint.

5

I declare under penalty of perjury that the foregoing is true and correct to the best of my

6 knowledge. Executed February 1, 2017, in New York, New York.

7

8

By: /s/ Brigitte Amiri ________

9

Brigitte Amiri

10

11

12

13 14 15 16

17

18

19 20 21 22

23

24

25

26
27
28 ______________________________________________________________________________
AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL., DECLARATION OF BRIGITTE AMIRI, CIVIL NO. 3:16-CV-3539-LB

2

 
 Case 3:16-cv-03539-LB Document 57 Filed 02/02/17 Page 1 of 22

1

ELIZABETH O. GILL (SBN 218311) JENNIFER L. CHOU (SBN 304838)

2

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC.

3

39 Drumm Street San Francisco, CA 94111

4

Telephone: (415) 621-2493 Facsimile: (415) 255-8437

5

Email: egill@aclunc.org Email: jchou@aclunc.org

6 BRIGITTE AMIRI (pro hac vice)

7

BRIAN HAUSS (SBN 284759) AMERICAN CIVIL LIBERTIES UNION FOUNDATION

8

125 Broad Street, 18th Floor New York, NY 10004

9

Telephone: (212) 549-2633 Facsimile: (212) 549-2652

10

Email: bamiri@aclu.org Email: bhauss@aclu.org

11 MELISSA GOODMAN (SBN 289464)

12

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA

13

1313 West 8th Street Los Angeles, California 90017

14

Telephone: (213) 977-9500 Facsimile: (213) 977-5299

15 Email: mgoodman@aclusocal.org

16

DANIEL MACH (pro hac vice) AMERICAN CIVIL LIBERTIES UNION FOUNDATION

17

915 15th Street NW Washington, DC 20005

18

Telephone: (202) 675-2330 Email: dmach@aclu.org

19 Attorneys for Plaintiff

20

THE UNITED STATES DISTRICT COURT

21

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

22

AMERICAN CIVIL LIBERTIES UNION OF )

23 NORTHERN CALIFORNIA,

)

24

Plaintiff,

) ) Civil No. 3:16-cv-03539-LB

25
v.
26

) ) FIRST AMENDED COMPLAINT )

)
27

______________________________________________________________________________
28 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,

FIRST AMENDED COMPLAINT, CIVIL NO. 3:16-CV-3539-LB

1

Case 3:16-cv-03539-LB Document 57 Filed 02/02/17 Page 2 of 22

1 SYLVIA MATTHEWS BURWELL,

)

Secretary of Health and Human Services;

)

2 MARK GREENBERG, Acting Assistant

)

Secretary for Administration for Children

)

3 and Families; ROBERT CAREY, Director of )

4

Office of Refugee Resettlement, in their official capacities,

) )

5

)

Defendants.

)

6

)

7

8

Plaintiff American Civil Liberties Union of Northern California (“Plaintiff” or “ACLU of

9 Northern California”), for its complaint in the above-captioned matter, alleges as follows:

10

PRELIMINARY STATEMENT

11

1. There are currently thousands of unaccompanied immigrant minors (also known

12 as unaccompanied children, or “UC”) in the legal custody of the federal government. These

13 young people are extremely vulnerable: Many have come to the United States fleeing abuse and

14 torture in their home countries; many have been sexually abused or assaulted either in their home

15 countries, during their long journey to the United States, or after their arrival; some have also

16 been trafficked for labor or prostitution in the United States or some other country; and many

17 have been separated from their families.

18

2. The federal government is legally required to provide these young people with

19 basic necessities, such as housing, food, and access to emergency and routine medical care,

20 including family planning services, post-sexual assault care, and abortion.

21

3. To provide young people with these necessities, the government, through the

22 Office of Refugee Resettlement (“ORR”), issues grants to private entities, including a number of

23 religiously affiliated organizations.

24

4. Yet, according to documents obtained through the Freedom of Information Act,

25 Defendants authorize a few of these religiously affiliated organizations—such as the United

26 States Conference of Catholic Bishops (“USCCB”) and its subgrantees across the country,

27
______________________________________________________________________________
28 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,
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Case 3:16-cv-03539-LB Document 57 Filed 02/02/17 Page 3 of 22

1 including Catholic Charities of Santa Clara County in California—to refuse on religious grounds

2 to provide information about, access to, or referrals for contraception and abortion, even if the

3 young person in their care has been raped.

4

5. For example, Defendants approved grants to USCCB—nearly $10 million in 2014

5 alone—even though ORR was well aware that USCCB’s agreement with its subgrantees

6 explicitly prohibits them from providing, referring, encouraging, or in any way facilitating access

7 to contraceptives and abortion services. Defendants also allow these organizations to reject

8 young women seeking abortion from their programs, and to expel young women who ask for an

9 abortion.

10

6. Defendants’ decision to authorize this religiously motivated denial of services has

11 extraordinary consequences for the vulnerable unaccompanied immigrant minor population. For

12 example, one young woman—who was hospitalized for suicidal ideation after she became

13 pregnant as the result of rape by one of her “guides” to the United States—was kicked out of her

14 Catholic-affiliated shelter because she asked for an abortion. As a result, she was transferred to

15 another shelter, away from the social workers and other shelter support staff who constituted her

16 only support system in this country. Another young woman, who had also become pregnant as a

17 result of rape on her journey to the United States, was denied placement at a shelter near her

18 family in Florida because the two available shelters both had religious objections to caring for

19 teens who seek abortions.

20

7. ORR has authorized USCCB and other grantees to impose religiously based

21 restrictions on young women’s access to reproductive health care—care that these young women

22 are entitled to receive by law. Defendants have therefore violated the Establishment Clause by

23 failing to remain neutral with respect to religion, by subsidizing grantees’ religious beliefs to the

24 detriment of unaccompanied immigrant minors, and by underwriting religious restrictions on

25 vital government-funded services.

26

27
______________________________________________________________________________
28 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,
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2

Case 3:16-cv-03539-LB Document 57 Filed 02/02/17 Page 4 of 22

1

8. This is not the first time that Defendants have violated the Establishment Clause

2 in this manner. In 2012, a federal district court held that Defendants violated the Establishment

3 Clause when they authorized USCCB to prohibit its subcontractors from referring or providing

4 access to abortion or contraception for trafficking victims in a federal program, despite clear law

5 requiring such services. ACLU of Massachusetts v. Sebelius, 821 F. Supp. 2d 474 (D. Mass.

6 2012), vac’d, 705 F.3d 44 (1st Cir. 2013) (holding that the case was moot because Defendants’

7 contract with USCCB had expired).

8

9. In 2013, the government successfully asserted in ACLU of Massachusetts that the

9 case was moot because it was “completely speculative whether USCCB” would receive any

10 future contract award to care for trafficking victims. Yet, in September 2015, Defendants

11 awarded USCCB a multi-million dollar contract to care for trafficking survivors. According to

12 documents obtained through a Freedom of Information Act lawsuit, USCCB’s application

13 indicated that “[a]ll activities conducted by USCCB . . . will be consistent with Catholic

14 teaching.” Once again, USCCB objected to providing access to certain reproductive health care.

15 It also objected to assisting with visas for spouses of trafficking victims unless “they are in a

16 legal union of one man and one woman.”

17

10. Defendants have not only provided a grant to USCCB despite its objection to

18 provide legally required care and services to beneficiaries of this particular federal program but

19 have also allowed USCCB to enter into subcontracts exclusively with agencies that share its

20 religious objection to providing trafficking survivors with access to reproductive health care and
21 to assisting same-sex couples with visas. In doing so, like their actions in the UC program,
22 Defendants have violated the Establishment Clause by failing to remain neutral with respect to
23 religion in a government aid program, by allowing a government grantee to select subgrantees
24 based on religious criteria, by subsidizing grantees’ religious beliefs to the detriment of
25 trafficking survivors, and by underwriting religious restrictions on vital government-funded
26 services.
27
______________________________________________________________________________
28 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,
FIRST AMENDED COMPLAINT, CIVIL NO. 3:16-CV-3539-LB

3

Case 3:16-cv-03539-LB Document 57 Filed 02/02/17 Page 5 of 22

1

11. Plaintiff’s members include federal taxpayers, whose tax dollars finance the

2 grants provided by Defendants to these religious organizations. Plaintiff seeks, among other

3 relief, an injunction ordering Defendants to ensure that federal grants are implemented without

4 the above-mentioned religious restrictions.

5

JURISDICTION AND VENUE

6

12. This action arises under the First Amendment of the United States Constitution

7 and presents a federal question within this Court’s jurisdiction under Article III of the

8 Constitution and 28 U.S.C. § 1331.

9

13. Plaintiff’s claims for declaratory and injunctive relief are authorized by 28 U.S.C.

10 §§ 2201 and 2202, by Federal Rules of Civil Procedure 57 and 65, and by the inherent equitable

11 powers of this Court.

12

14. The Court has authority to award costs and attorneys’ fees under 28 U.S.C. §

13 2412.

14

15. Venue is proper in this district under 28 U.S.C. § 1391(e).

15

INTRADISTRICT ASSIGNMENT

16

16. This action arises in the San Francisco Division because Plaintiff’s headquarters

17 are in San Francisco.

18

PARTIES

19

17. Plaintiff ACLU of Northern California is a nonprofit membership organization

20 devoted to protecting the basic civil liberties embodied in the United States Constitution,
21 including those religious liberties of belief and conscience safeguarded by the Establishment
22 Clause of the First Amendment. The ACLU of Northern California is a state affiliate of the
23 national American Civil Liberties Union and is domiciled in the State of California, with its
24 principal place of business in San Francisco, California. Members of the ACLU of Northern
25 California pay federal taxes into the general revenues from which Congress appropriates funds to
26 satisfy the government’s obligations to provide care to unaccompanied immigrant minors under
27
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28 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,
FIRST AMENDED COMPLAINT, CIVIL NO. 3:16-CV-3539-LB

4

Case 3:16-cv-03539-LB Document 57 Filed 02/02/17 Page 6 of 22

1 the Homeland Security Act (“HSA”), and provide care to both unaccompanied immigrant minors

2 and trafficking victims under the William Wilberforce Trafficking Victims Protection

3 Reauthorization Act (“TVPRA”). Plaintiff and its members object to, and are injured by, the use

4 of federal tax dollars pursuant to the HSA and the TVPRA in a manner that is non-neutral with

5 respect to religion, subsidizes religious beliefs to which they do not subscribe, and underwrites

6 religious restrictions on critical government-funded services.

7

18. Defendant Sylvia Mathews Burwell is the Secretary of the United States

8 Department of Health and Human Services (“HHS”) and is responsible for the administration

9 and oversight of the Department. Defendant Burwell has authority over the Administration for

10 Children and Families (“ACF”), a subdivision of HHS. By permitting USCCB and other

11 organizations to impose their religiously based restrictions on the services unaccompanied

12 immigrant minors and trafficking survivors can receive with taxpayer funds, and allowing

13 USCCB to subgrant exclusively to entities that share its religious beliefs, Defendant Burwell has

14 violated the Establishment Clause. Defendant Burwell and her successors are sued in their

15 official capacities.

16

19. Defendant Mark Greenberg is the Acting Assistant Secretary for ACF. Defendant

17 Greenberg has authority over ORR, a subdivision of ACF. By permitting USCCB and other

18 organizations to impose their religiously based restrictions on the services unaccompanied

19 immigrant minors and trafficking survivors can receive with taxpayer funds, and allowing

20 USCCB to subgrant exclusively to entities that share its religious beliefs, Defendant Greenberg

21 has violated the Establishment Clause. Defendant Greenberg and his successors are sued in their

22 official capacities.

23

20. Defendant Robert Carey is the Director of ORR. By permitting USCCB and other

24 organizations to impose their religiously based restrictions on the services unaccompanied

25 immigrant minors and trafficking survivors can receive with taxpayer funds, and allowing

26 USCCB to subgrant exclusively to entities that share its religious beliefs, Defendant Carey has

27
______________________________________________________________________________
28 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,
FIRST AMENDED COMPLAINT, CIVIL NO. 3:16-CV-3539-LB

5

Case 3:16-cv-03539-LB Document 57 Filed 02/02/17 Page 7 of 22

1 violated the Establishment Clause. Defendant Carey and his successors are sued in their official

2 capacities.

3

FACTS GIVING RISE TO THIS ACTION

4

The Unaccompanied Children (“UC”) Program

5

21. Unaccompanied immigrant minors come into federal custody in a variety of

6 ways.1 Many of these young people are apprehended at or near the border by the United States

7 Department of Homeland Security’s Customs and Border Protection Unit (“CBP”). After their

8 initial apprehension, these young people are held in “holding tanks” or cells maintained by CBP.

9 After several days, they are transferred to ORR. Other unaccompanied immigrant minors are

10 apprehended within the interior of the United States, including after contact with the juvenile

11 justice system, or during immigration enforcement activities inside the country.

12

22. ORR has responsibility for the “care and custody of all unaccompanied []

13 children, including responsibility for their detention, where appropriate.” 8 U.S.C. § 1232(b)(1).

14 By statute, any federal department or agency that determines that it has an unaccompanied

15 immigrant minor in its custody must transfer the minor to ORR within 72 hours of making that

16 determination. Id. § 1232(b)(3). The federal government reports that in Fiscal Year 2015, 33,726

17 unaccompanied immigrant minors were referred to ORR.

18

23. The federal government and all of its programs are required to ensure that the best

19 interests of the unaccompanied immigrant minor are protected. Section 462 of the Homeland

20 Security Act (“HSA”) requires ORR to “ensur[e] that the interests of the child are considered in
21 decisions and actions relating to the care and custody of an unaccompanied child.” 6 U.S.C. §
22 279(b)(1)(B). It also requires ORR to conduct “investigations and inspections of facilities and
23
24
1 By statutory definition, unaccompanied immigrant minors are under 18 years old, have no legal
25 immigration status, and either have no parent or legal guardian in the United States, or there is no
parent or legal guardian in the United States able to provide care and physical custody. 6 U.S.C.
26 § 279(g)(2).
27
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28 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,
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6

Case 3:16-cv-03539-LB Document 57 Filed 02/02/17 Page 8 of 22

1 other entities in which unaccompanied children reside, including regular follow-up visits . . . to

2 assess the continued suitability of such placements.” Id. § 279(b)(1)(L).

3

24. In addition, Section 235 of the TVPRA directs HHS to ensure that

4 unaccompanied immigrant minors are “promptly placed in the least restrictive setting that is in

5 the best interest of the child.” 8 U.S.C. § 1232(c)(2)(A).

6

25. Most unaccompanied immigrant minors who are referred to ORR are eventually

7 released from custody to parents or sponsors who live in the United States. Such minors are often

8 held in short-term facilities or shelters while they await release to their parents or sponsors. A

9 significant number of unaccompanied immigrant minors are not released to parents or sponsors,

10 and spend longer periods of time in custody. For some minors, ORR cannot identify an

11 individual who can serve as a viable sponsor. Young people who are expected to be in the

12 government’s custody for an extended period or those who have special needs are sometimes

13 transferred to group homes or a foster family. For others, ORR may determine that the minor

14 should be placed in a more restrictive custodial setting. Young people who are flight risks, for

15 example, are held in jail-like facilities with limited, if any, freedom.

16

26. Unaccompanied immigrant minors in ORR’s legal custody are cared for through a

17 network of ORR-funded facilities and shelters—including a number of religiously affiliated

18 entities, such as USCCB subgrantees; Catholic Charities Boystown; His House; and Youth for

19 Tomorrow.

20

27. USCCB does not provide services directly to unaccompanied immigrant minors,

21 but instead issues subgrants to Catholic Charities and other organizations around the country that

22 do so, including, according to documents obtained by the ACLU under the Freedom of

23 Information Act: Bethany Christian Services (Grand Rapids, Michigan), Catholic Charities Forth

24 Worth (Fort Worth, Texas), Catholic Charities Houston (Houston, Texas), Catholic Charities

25 Santa Clara County (San Jose, California), Catholic Community Services Tacoma (Tacoma,

26

27
______________________________________________________________________________
28 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,
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7

Case 3:16-cv-03539-LB Document 57 Filed 02/02/17 Page 9 of 22

1 Washington), Catholic Family Center (Rochester, New York), and Commonwealth Catholic

2 Charities (Richmond, Virginia).

3 Unaccompanied Immigrant Minors Are Legally Entitled to Receive Access to Reproductive

4

Health Care

5

28. Unaccompanied immigrant minors have an acute need for reproductive health

6 care, which is both time-sensitive and is needed over the course of their time in federal custody.

7 For example, a high number of these young women are victims of sexual assault. Some of these

8 women will need access to emergency contraception, and some will need access to abortion. Any

9 female aged 10 or older must undergo a pregnancy test within 48 hours of admission to an ORR-

10 funded facility. This is the point at which many young women first learn they are pregnant.

11 Many unaccompanied minors need pregnancy prevention services and/or access to abortion

12 during their short or long periods in ORR custody.

13

29. The federal government is legally obligated to ensure that all programs that

14 provide care to these young people comply with the minimum requirements detailed in the

15 Flores v. Reno Settlement Agreement, CV-85-4544-RJK (Jan. 17, 1997) (“Flores agreement”).

16 The Flores agreement requires the government to provide or arrange for, among other things,

17 “appropriate routine medical . . . care,” including specifically “family planning services[] and

18 emergency health care services.”

19

30. Additionally, in response to its obligations under the Prison Rape Elimination Act

20 (“PREA”) and the Violence Against Women Reauthorization Act of 2013 (“VAWA 2013”),

21 ORR issued a regulation requiring all ORR-funded care provider facilities to, among other

22 things, provide unaccompanied immigrant minors who are victims of sexual assault with access

23 to reproductive healthcare. The regulation states, in relevant part, that grantees providing care to

24 unaccompanied immigrant minors who have experienced sexual abuse while in federal custody

25 must ensure “unimpeded access to emergency medical treatment, crisis intervention services,

26 emergency contraception, and sexually transmitted infections prophylaxis.” 45 C.F.R. §

27 411.92(a). The regulation further provides that grantees must ensure that a young person subject
______________________________________________________________________________
28 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,
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Case 3:16-cv-03539-LB Document 57 Filed 02/02/17 Page 10 of 22

1 to sexual abuse is offered a pregnancy test, and “[i]f pregnancy results from an instance of sexual

2 abuse, [the] care provider facility must ensure that the victim receives timely and comprehensive

3 information about all lawful pregnancy-related medical services.” Id. § 411.93(d). Grantees were

4 required to comply with this regulation by June 24, 2015.

5

31. Upon information and belief, unaccompanied immigrant minors face significant

6 barriers to obtaining services not provided by the government and/or its grantees. For example,

7 even if a teen can leave the shelter, she still may not be able to obtain access to abortion or

8 contraceptives without assistance because she likely speaks little or no English; she may have no

9 support system, other than that provided by the federal program; she may have no means of

10 transportation to the doctor’s office; and she may have little or no financial resources. If she is

11 not informed that contraceptives and abortions are available in the United States, she may not

12 even know that these options exist, given that many of these young people come from countries

13 where abortion is illegal.

14 ORR Authorizes Grantees’ Religious Restrictions on Young Women’s Access to Abortion

15

and Contraception

16

32. Defendants knowingly permit religiously affiliated grantees with religious

17 objections to abortion and contraception to impose restrictions on unaccompanied immigrant

18 minors’ access to these forms of reproductive healthcare. In so doing, Defendants allow these

19 grantees to flout Flores, the PREA/VAWA regulation, and their obligations under the HSA,

20 including by: allowing objecting programs to refuse to provide young women in their care with

21 information about, referrals for, or access to contraception, abortion, and, upon information and

22 belief, possibly the human papillomavirus (HPV) vaccine; transferring young women who seek

23 access to contraception or abortion out of objecting programs; and refusing to place young

24 women who are seeking access to emergency contraception or abortion in objecting programs,

25 even if that placement would otherwise be in the young woman’s best interest.

26

27
______________________________________________________________________________
28 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,
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Case 3:16-cv-03539-LB Document 57 Filed 02/02/17 Page 11 of 22

1

33. For example, Defendants altered the language used in its cooperative agreements

2 with UC program grantees in response to USCCB’s objection to providing access to reproductive

3 health care.

4

34. In early 2011, ORR included specific family-planning language in its cooperative

5 agreements. Among other things, these agreements stated: “Family planning services are already

6 required by the Flores settlement agreement, and therefore this cooperative agreement . . . . The

7 grantees will refer female [unaccompanied immigrant minors] to medical care providers who can

8 provide a broad range of acceptable and effective medically approved family planning methods

9 and services. The grantees will refer female [unaccompanied immigrant minors] to medical care

10 providers who offer pregnant [unaccompanied immigrant minors] the opportunity to be provided

11 information and counseling regarding prenatal care and delivery; infant care, foster care, or

12 adoption; and pregnancy termination.”

13

35. ORR removed this language based on USCCB’s objection to the contraception

14 and abortion requirements.

15

36. In fact, USCCB has made quite clear that they refuse to provide access to these

16 reproductive healthcare services for the young people in their care. In response to ORR’s

17 PREA/VAWA regulation requiring access to reproductive health care for unaccompanied

18 immigrant minors who are subject to sexual assault, USCCB issued a public letter stating that it

19 cannot “help ensure access” to any medical care that is contrary to its religious beliefs. In other

20 words, USCCB said that it should be free “from any requirement to provide, facilitate the
21 provision of, provide information about, or refer or arrange for items or procedures to which they
22 have a religious or moral objection.” This includes freedom from notifying the federal
23 government that a minor in their care is seeking an abortion, even in cases of rape in federal
24
25
26
27
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28 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,
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Case 3:16-cv-03539-LB Document 57 Filed 02/02/17 Page 12 of 22

1 custody, so that the federal government could step in and provide the minor with access to

2 abortion.2

3

37. Defendants also allow USCCB to prohibit its subgrantees from providing

4 information about or access to contraception and abortion. USCCB’s cooperative agreements

5 with individual Catholic Charities and other subgrantees, which are provided to ORR, explicitly

6 state that subgrantees “must ensure that services provided to those served under this Agreement

7 are not contrary to the authentic teaching of the Catholic Church, its moral convictions, and

8 religious beliefs. Accordingly, [USCCB] expects that the Sub-recipient will provide services

9 under this Agreement within certain parameters including, among other things, that the Sub-

10 recipient will not provide, refer, encourage, or in any way facilitate access to contraceptives or

11 abortion services.”

12

38. Defendants have likewise approved grant applications for religiously affiliated

13 grantees, including individual Catholic Charities, even though the grant applications explicitly

14 state that the grantees will not provide family planning information or services to the young

15 people in their care.

16

39. For example, in a 2014–2015 direct grant application, the Catholic Charities of

17 the Archdiocese of Galveston-Houston stated: “Due to our religiously-affiliated institution’s

18 philosophy and policies, family planning practices are not discussed with clients. Clients are

19 encouraged to practice abstinence.” The grant application further provided that, “[i]n cases where

20 the pregnancy has been the result of a rape, the Clinician and Pregnancy Support Specialist work

21

22

23

2 In the preamble to its regulation, ORR stated that organizations that refuse to provide or refer for certain services could serve as subgrantees or as members of a consortium of service

24 providers, so that other organizations without religious objections could provide unaccompanied
immigrant minors with the required services. Alternatively, ORR stated that a grantee may notify

25 federal officials if a young person in its care requires services to which the grantee objects, and

that ORR would then either provide the services itself or transfer the young person to a grantee
26 willing to provide the required services. USCCB has even objected to this accommodation.

27
______________________________________________________________________________
28 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,
FIRST AMENDED COMPLAINT, CIVIL NO. 3:16-CV-3539-LB

11

Case 3:16-cv-03539-LB Document 57 Filed 02/02/17 Page 13 of 22

1 to preserve confidentiality, helping clients process the trauma of the rape while also exploring

2 the decision of whether to keep the baby or plan an adoption.”

3

40. Upon information and belief, Defendants approved the Archdiocese of Galveston-

4 Houston’s grant application, without comment or modification. The Archdiocese of Galveston-

5 Houston received more than $8 million in federal taxpayer funds for the care of unaccompanied

6 immigrant minors between November 1, 2013, and September 30, 2016, despite its explicit

7 refusal to provide the young people in its charge with legally required access to reproductive

8 healthcare.

9

41. Finally, Defendants facilitate the ostracization of young women who have

10 accessed or seek to access abortion. At grantees’ request, Defendants have transferred several

11 young women who requested access to abortion to other providers. Such transfers delay the

12 young person’s access to the requested healthcare, unfairly stigmatize her for choosing to

13 terminate the pregnancy, and uproot her from the support network developed at her initial

14 placement, including friends, social workers, mental and physical health professionals, teachers,

15 and lawyers assisting with asylum or deportation proceedings.

16

42. In other cases, Defendants have made decisions about where to initially place a

17 young person based on whether she had an abortion or is seeking an abortion. In those situations,

18 Defendants are allowing religiously affiliated programs to prevent them from making a

19 placement in the young person’s best interest. Thus, a young woman who has requested an

20 abortion may be forced into a program that is already operating at capacity, far from any family

21 members she has in the United States, and/or far from the reproductive health care clinic

22 performing her procedure.

23

43. The individual stories of these young women confirm the detrimental effects of

24 religiously based restrictions on access to reproductive health care.3

25

26

3 Pursuant to a Freedom of Information Act request filed by the American Civil Liberties Union, Plaintiff has obtained a number of documents and emails describing the experiences young

27
______________________________________________________________________________
28 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,
FIRST AMENDED COMPLAINT, CIVIL NO. 3:16-CV-3539-LB

12

Case 3:16-cv-03539-LB Document 57 Filed 02/02/17 Page 14 of 22

1

Rosa

2

44. Rosa, a 17-year-old, left her home country for the United States in 2014. She was

3 raped during her journey by one of her “guides” in Mexico.

4

45. Rosa learned that she was pregnant while in ORR custody at Catholic Charities in

5 Miami, Florida. She was distraught by the possibility of being denied an abortion, and said that if

6 she could not get an abortion, she would kill herself. As a result, she was hospitalized for suicidal

7 ideation.

8

46. When Rosa was going to be released from the hospital, the Catholic Charities

9 facility refused to allow her back into the program because she was seeking an abortion. Another

10 religiously affiliated ORR grantee, His House, also refused to accept her for the same reason.

11

47. Rosa was ultimately transferred to another facility, but even after she was

12 transferred, one of her clinicians at her new facility reported that Rosa was “anxious and

13 preoccupied with this abortion and when it will happen,” and that the issue had become urgent

14 because she “might start to inflict trauma to the fetus or herself.”

15

48. ORR ultimately approved the request for federal funding of Rosa’s abortion, and

16 she was able to obtain the abortion.

17

Maria

18

49. Maria was 14 years old when she fled from her home country in 2014. She had

19 been living there with her aunt, while her parents were in the United States. She was physically

20 abused by her maternal grandmother, and had been threatened with physical discipline by her
21 parents when they lived with her.
22
23
24
25 women who have requested access to abortion while in ORR custody. Working from those
documents, Plaintiff has pieced together several individual narratives, which are described
26 below. These narratives are based on information and belief. The names used here are 27 pseudonyms.
______________________________________________________________________________
28 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,
FIRST AMENDED COMPLAINT, CIVIL NO. 3:16-CV-3539-LB

13

Case 3:16-cv-03539-LB Document 57 Filed 02/02/17 Page 15 of 22

1

50. After entering the United States, Maria was placed with an ORR shelter in Texas.

2 At a doctor’s visit, Maria discovered she was pregnant—likely because of the rape she

3 experienced on her journey to the United States.

4

51. An email from an ORR official indicates that the agency had looked into the

5 possibility of transferring Maria to Florida, to be near her family, but was unable to do so

6 because “both of the shelters in Florida are faith-based and will not take the child to have this

7 procedure.” Another ORR email cautions that Maria’s post-release social worker should not

8 work for a “religion-based agency” because of the abortion.

9

Laura

10

52. Laura, a 17-year-old placed at a short term shelter in Texas, was 17–18 weeks

11 pregnant and seeking an abortion. Because Laura was swiftly approaching her 20th week of

12 pregnancy, after which abortion is illegal in Texas, ORR was looking to transfer her to another

13 program. ORR sought to place her somewhere on the East Coast, so she could be near her

14 brothers and sisters. One ORR official raised the possibility of transferring her to Youth for

15 Tomorrow (“YFT”), a faith-based program in Virginia. Another official rejected this possibility,

16 stating: “YFT would be unable to take this youth. YFT is a religious organization and is pro-life.

17 I just had a UAC who requested that she wanted to terminate her pregnancy and I had to transfer

18 her due to YFT position on abortion.”

19

Zoe

20

53. Zoe left her home country in January 2015, when she was roughly 16-years-old.

21 She was apprehended near the U.S. border, and she was placed in the YFT program in Virginia

22 in early 2015.

23

54. Zoe’s initial physical examination revealed that she was pregnant. Zoe told her

24 doctor that she wanted to have an abortion. After expressing her desire to terminate the

25 pregnancy multiple times for nearly two weeks, she finally received counseling. After the

26 counseling session, she reiterated her desire for an abortion.

27
______________________________________________________________________________
28 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,
FIRST AMENDED COMPLAINT, CIVIL NO. 3:16-CV-3539-LB

14

Case 3:16-cv-03539-LB Document 57 Filed 02/02/17 Page 16 of 22

1

55. Although Zoe was thriving at YFT, YFT asked ORR to transfer Zoe to another

2 program where she would be permitted to terminate her pregnancy.

3

Defendants’ Trafficking Program

4

56. It is estimated that more than 14,000 individuals are trafficked into the United

5 States each year. Human trafficking is a form of modern-day slavery, in which individuals are

6 recruited or obtained through force or coercion and then made to labor against their will. Many

7 women who are trafficked are raped by traffickers or acquaintances of traffickers. As a result,

8 some women who have been trafficked experience unintended pregnancy and are at risk for

9 sexually transmitted infection. Victims of severe forms of human trafficking frequently need

10 reproductive health care services and referrals to lead safe lives, become self-sufficient, and

11 protect themselves and others. These services include emergency contraception, condoms, and in

12 some cases abortion.

13

57. Congress passed the Trafficking Victims Protection Act (TVPA), and

14 subsequently the TVPRA, to combat human trafficking and expand benefits and services for

15 those who are trafficked into the United States from other countries. Under the TVPA,

16 Defendants are charged with providing an array of services to these individuals once they escape

17 their traffickers, including medical services, to help them become self-sufficient. The TVPA

18 further specifies that trafficking victims must receive the same level of benefits and services as

19 refugees, which includes contraception, and in limited circumstances abortion.

20

58. Rather than provide services directly to trafficking survivors, Defendants give

21 grants to non-profit organizations to do so. Trafficking victims often do not know where to

22 access medical care, and often do not speak English. As a result, trafficking victims rely on case

23 managers at the non-profit that is assisting them to help them navigate an array of services,

24 including by providing information, referrals, and transportation to these services. If case

25 managers do not provide information about services, trafficking survivors may not understand

26

27
______________________________________________________________________________
28 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,
FIRST AMENDED COMPLAINT, CIVIL NO. 3:16-CV-3539-LB

15

Case 3:16-cv-03539-LB Document 57 Filed 02/02/17 Page 17 of 22

1 the scope of medical care they are entitled to; and if case managers do not provide referrals and

2 access to medical care, many trafficking survivors will not be able to access that care.

3

59. Nevertheless, in 2006, Defendants provided a multi-year, multi-million dollar

4 contract to USCCB to distribute as subcontracts to organizations that directly serve trafficked

5 individuals. In that contract, Defendants permitted USCCB to prohibit all subcontractors from

6 using federal funds to pay for abortion and contraception services and referrals, even though

7 trafficking survivors are legally entitled to receive those services.

8

60. The ACLU of Massachusetts brought a court challenge, and in 2012, a federal

9 district court held that Defendants’ contract with USCCB violated the Establishment Clause.

10

61. During the course of litigation, ORR issued a new Funding Opportunity

11 Announcement (“FOA”), which made clear that trafficking victims need reproductive health

12 services and referrals. ORR selected three organizations to receive grants under the new FOA

13 that would provide those reproductive health services and referrals. USCCB was not among the

14 recipients.

15

62. On appeal, ORR maintained that the expiration of its contract with USCCB

16 rendered the case moot, in part because “it is completely speculative whether USCCB will

17 receive any future contract award similar to the one plaintiff challenges here.” The U.S. Court of

18 Appeals for the First Circuit accepted this argument, concluding that “we can safely assume that

19 for the foreseeable future the challenged contract terms will not recur.” The court gave particular

20 weight “to the fact that the defendants are high-ranking federal officials, including a cabinet

21 member, who have, as a matter of policy, abandoned the prior practice and adopted a concededly

22 constitutional replacement.”

23

63. In 2015, ORR issued a Funding Opportunity Announcement, HHS-2015-ACF-

24 ORR-ZV-0976, stating that “it will accept competing applications for cooperative agreements to

25 administer the Trafficking Victim Assistance Program (TVAP).”

26

27
______________________________________________________________________________
28 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,
FIRST AMENDED COMPLAINT, CIVIL NO. 3:16-CV-3539-LB

16

Case 3:16-cv-03539-LB Document 57 Filed 02/02/17 Page 18 of 22

1

64. The FOA sought to fund organizations to provide “comprehensive case

2 management” to trafficking survivors, including providing access to “medical care, including

3 treatment for sexually transmitted infections, family planning services and the full range of

4 legally permissible gynecological and obstetric care, including but not limited to exams, tests,

5 pre-natal services and non-directive health-related counselling.”

6

65. The FOA explicitly addressed potential religious objections to the Trafficking

7 Victim Assistance Program’s service and referral requirements. It states: “If an organization has

8 a religious objection to providing any of the services or referrals required in the program, it may

9 propose an approach to meeting its grant obligations consistent with ACF’s faith-based policy.

10 The alternative approach must be one that accomplishes the goal of ensuring that trafficking

11 victims understand the full range of services available to them, including reproductive health

12 services, and that there is a mechanism by which victims requesting such services can receive

13 appropriate referrals. If an alternative approach is proposed, ORR will decide whether to accept

14 the alternative approach, based upon a determination of whether the alternative approach will

15 ensure timely referrals to all services and/or referrals for which the individual is eligible, is not

16 burdensome to the client, and is operationally feasible for ACF.”

17

66. Despite Defendants’ representations in the ACLU of Massachusetts litigation, in

18 2013, Defendants awarded USCCB a $2 million dollar grant in September 2015, and, upon

19 information and belief, another $2 million dollar grant in September 2016. Upon information and

20 belief, USCCB is the primary grantee to serve trafficking survivors in two regions of the country,

21 which include Delaware, Washington, D.C., Maryland, Pennsylvania, Virginia, West Virginia,

22 Arkansas, Louisiana, New Mexico, Oklahoma, and Texas. Two other organizations also received

23 grants to provide services, primarily in other parts of the country.

24

67. Upon information and belief, the Cooperative Agreement between USCCB and

25 Defendants requires USCCB to “[a]dhere to all requirements in the FOA,” and states that there

26 must be “a mechanism by which victims requesting [reproductive health] services can receive

27
______________________________________________________________________________
28 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,
FIRST AMENDED COMPLAINT, CIVIL NO. 3:16-CV-3539-LB

17

Case 3:16-cv-03539-LB Document 57 Filed 02/02/17 Page 19 of 22

1 appropriate referrals” in a timely manner that is not burdensome to the client and is operationally

2 feasible for Defendants.

3

68. Upon information and belief, in the process of negotiating its contract with

4 Defendants, USCCB sent an email to ACF staff stating: “we concur that we would not impose

5 our religious objections on sub-recipients but rather would enter into agreements with sub-

6 recipients that share our religious objections and that would elect to refrain from facilitating or

7 referring for those specific services.” Another email confirms that USCCB made clear to all of

8 its subrecipients its “intention to administer” the program “in alignment with Catholic teaching.”

9 USCCB would not subcontract with an entity that did not share its religious opposition to

10 providing access to certain forms of reproductive health care. If a subcontractor were unable to

11 meet a client’s needs due to a religious objection, USCCB would possibly transfer the client to

12 another grantee.

13

69. Upon information and belief, USCCB’s subrecipients provide a brochure to

14 trafficking survivors that says: “This grantee is affiliated with a program of the Catholic Church,

15 which has moral and religious objections to direct sterilization, contraception, and abortion. You

16 are free to discuss all health matters with your medical provider.”

17

Congressional Knowledge of ORR’s Grants to Religiously Affiliated Entities

18

70. Congress is aware that ORR is providing HSA and TVPRA funds to religiously

19 affiliated entities. For example, on June 25, 2014, Bishop Mark Seitz testified before the House

20 Judiciary Committee regarding USCCB’s participation in ORR’s program for the care of
21 unaccompanied children. In his testimony, Bishop Seitz recommended on behalf of USCCB that
22 “Congress appropriate $2.28 billion in Fiscal Year 2015 for care of unaccompanied children,
23 consistent with the Administration’s request.” Bishop Seitz also stated that “[a]ny funding should
24 be administered in a manner that respects the religious liberty and conscience rights of
25 organizations providing this care.” Hearing on Unaccompanied Children: H. Comm. on the
26
27
______________________________________________________________________________
28 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,
FIRST AMENDED COMPLAINT, CIVIL NO. 3:16-CV-3539-LB

18

Case 3:16-cv-03539-LB Document 57 Filed 02/02/17 Page 20 of 22

1 Judiciary, 113th Cong. 40 (2014) (statement of Rev. Mark Seitz, USCCB).4 Similarly, on

2 February 4, 2016, USCCB’s Associate Director of Children’s Services submitted testimony to

3 the House Judiciary Subcommittee on Immigration and Border Security explaining that USCCB

4 provides “short-term and long-term foster care to unaccompanied children in HHS/ORR

5 custody,” including “medical and mental health screening and care,” though “cooperative

6 agreements with HHS/ORR.” Kristyn Peck, Associate Director of Children’s Services (USCCB),

7 Testimony for the Record Before the H. Subcomm. on Immigration and Border Security of the H.

8 Judiciary Comm., 114 Cong. 117 (Feb. 4, 2016).5

9

71. A recent report by the Senate’s Permanent Subcommittee on Investigations on

10 ORR’s role in protecting unaccompanied immigrant minors states: “HHS’s [UC] program

11 functions through grants and contracts with a number of private care providers and other third

12 parties who perform daily tasks associated with [UC] placement. Those functions include

13 running shelters for children who have not yet been placed with sponsors, identifying and

14 screening potential sponsors, evaluating homes in which children will be placed, making release

15 recommendations to HHS, and providing post-release services to children. HHS awarded 56

16 grants to over 30 care providers for the [UC] program in FY 2016, including . . . the U.S.

17 Conference of Catholic Bishops.” Staff of S. Permanent Subcomm. on Investigations of the S.

18 Comm. on Homeland Security & Governmental Affairs, Protecting Unaccompanied Alien

19 Children from Trafficking and Other Abuses: The Role of the Office of Refugee Resettlement

20 (2016).6

21

22

23 4 Available at https://judiciary.house.gov/wp-content/uploads/2016/02/113-84-88437.pdf.
24 5 Available at http://docs.house.gov/meetings/JU/JU01/20160204/104402/HHRG-114-JU0125 20160204-SD001.pdf.
6 Available at http://www.hsgac.senate.gov/subcommittees/investigations/hearings/adequacy-of-
26 the-department-of-health-and-human-services-efforts-to-protect-unaccompanied-alien-children27 from-human-trafficking.
______________________________________________________________________________
28 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,
FIRST AMENDED COMPLAINT, CIVIL NO. 3:16-CV-3539-LB

19

Case 3:16-cv-03539-LB Document 57 Filed 02/02/17 Page 21 of 22

1

72. In 2011, Congress held hearings on Defendants’ trafficking program, and whether

2 USCCB should have been awarded a contract to provide care to trafficking victims even though

3 it refuses to allow subrecipients to refer for abortion and contraceptives. See, e.g., Verbatim

4 Transcript, Rep. Darrell Issa Holds a Hearing on HHS Grant Denial for U.S. Conference of

5 Catholic Bishops, Roll Call, Inc., Dec. 14, 2011, 2011 WL 6254061; HHS and the Catholic

6 Church: Examining the Politicization of Grants Hearing Before the Comm. on Oversight and 7 Gov’t Reform, H.R., 112th Cong. 112-124 (2011).7

8

73. The Attorney General’s Annual Report to Congress and Assessment of U.S.

9 Government Activities to Combat Trafficking in Persons for Fiscal Year 2015 includes a

10 description of the trafficking grant provided to USCCB on September 30, 2015, including the 11 fact that “USCCB expressed its plan to have subcontracts with certain services providers.”8

12

74. In the Consolidated Appropriations Act, 2016, Pub. L No. 114-113, Congress

13 appropriated nearly $1.6 billion for ORR’s Refugee and Entrant Assistance Programs in FY2016,

14 including “for carrying out” the government’s obligations under the TVPA, Section 462 of the

15 HSA, and Section 235 of the TVPRA.

16

CAUSE OF ACTION

17

75. Plaintiff realleges and incorporates by reference, as if fully set forth herein, the

18 allegations of paragraphs 1 through 74.

19

76. Defendants have violated and continue to violate the Establishment Clause of the

20 First Amendment by permitting USCCB and its subgrantees (such as Catholic Charities), His
21 House, Youth for Tomorrow, and similar organizations to impose religiously based restrictions
22 on the use of taxpayer funds.
23
24
25 7 Available at https://www.gpo.gov/fdsys/pkg/CHRG-112hhrg73939/pdf/CHRG-112hhrg7 26 3939.pdf. 27 8 Available at https://www.justice.gov/ag/file870826/download.
______________________________________________________________________________
28 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,
FIRST AMENDED COMPLAINT, CIVIL NO. 3:16-CV-3539-LB

20

Case 3:16-cv-03539-LB Document 57 Filed 02/02/17 Page 22 of 22

1

77. Defendants’ actions alleged herein disburse taxpayer funds in a manner that is not

2 neutral with respect to religion.

3

78. Defendants’ actions alleged herein have the predominant effect of advancing a

4 particular set of religious beliefs.

5

79. Defendants’ actions alleged herein endorse a particular set of religious beliefs.

6

80. Defendants’ actions alleged herein coerce Plaintiff and its members into

7 supporting and subsidizing a particular set of religious beliefs.

8

81. Defendants’ actions alleged herein have the predominant purpose of advancing a

9 particular set of religious beliefs.

10

RELIEF REQUESTED

11

WHEREFORE, Plaintiff, on behalf of its members, respectfully requests that the Court

12 enter judgment in its favor and:

13

1. Declare, pursuant to 28 U.S.C. § 2201, that Defendants’ actions, as set forth

14 above, violate the Establishment Clause of the First Amendment to the United States

15 Constitution;

16

2. Enter a permanent injunction ordering Defendants to ensure that the HSA and

17 TVPRA grants are implemented without the imposition of religiously based restrictions;

18

3. Award costs and fees for this action, including attorneys’ fees;

19

4. Award such further relief as this Court deems appropriate.

20

DATED: February 2, 2017

21

ACLU FOUNDATION OF NORTHERN

CALIFORNIA, INC.

22

By: /s/ Brigitte Amiri

23

Brigitte Amiri

Attorneys for Plaintiff

24

25

26

27
______________________________________________________________________________
28 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. BURWELL ET. AL.,
FIRST AMENDED COMPLAINT, CIVIL NO. 3:16-CV-3539-LB

21

 
 United States District Court Northern District of California

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

San Francisco Division

11

12 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA,
13 Plaintiff,
14 v.
15
SYLVIA MATHEWS BURWELL, et al., 16
Defendants. 17

Case No. 16-cv-03539-LB
ORDER GRANTING USCCB’S MOTION TO INTERVENE Re: ECF No. 29

18

INTRODUCTION

19

The ACLU of Northern California challenges federal grants to religious organizations for the

20 care of unaccompanied immigrant minors.1 The ACLU charges that the Office of Refugee

21 Resettlement (“ORR”) violates the Establishment Clause by its grants to religious groups that

22 refuse to provide unaccompanied minors with “information about, access to, or referrals for 23 contraception and abortion” services.2 One of those religious groups, the United States Conference

24 of Catholic Bishops (“USCCB”), now moves to intervene as of right or, alternatively,

25

26 27 1 Compl. – ECF No. 1. Record citations refer to material in the Electronic Case File (“ECF”); pinpoint
citations are to the ECF-generated page numbers at the top of documents. 28 2 Id. ¶¶ 4, 7.

ORDER — No. 16-cv-03539-LB

United States District Court Northern District of California

1 permissively, and to defend its receipt of federal funding.3 The ACLU objects to intervention on 2 both grounds; the government objects only to USCCB’s intervention as of right.4

3

The court held a hearing on the matter on February 2, 2017. At the hearing USCCB agreed to

4 proceed on the basis of permissive intervention. Because the court finds that permissive

5 intervention is appropriate in this case, the court grants USCCB’s motion to intervene.

6

7

STATEMENT

8

The United States government is legally obligated to provide for the “care and custody of all

9 unaccompanied minor children.”5 8 U.S.C. § 1232(b)(1); see 6 U.S.C. § 279(b). This includes,

10 among other things, routine medical care, family-planning services, and emergency health 11 services.6 In cases of sexually abused minors, ORR must provide “unimpeded access to

12 emergency medical treatment, crisis intervention services, emergency contraception, and sexually 13 transmitted infections prophylaxis.”7 45 C.F.R. § 411.92(a). And if pregnancy results from sexual

14 abuse, the victim must “receive[] timely and comprehensive information about all lawful

15 pregnancy-related medical services.”8 Id. § 411.93(d).

16

ORR provides these services through a network of facilities and shelters.9 It grants funds to

17 private entities — including religious organizations — to care for the children.10 But in doing so it

18 “authorize[s] a few of these religiously affiliated organizations . . . to refuse on religious grounds

19 to provide information about, access to, or referrals for contraception and abortion, even if the 20 young person in their care has been raped.”11 ORR also “allow[s] these organizations to reject

21

22 3 Motion to Intervene – ECF No. 29.
23 4 ACLU’s Opposition to Motion – ECF No. 49; Defendants’ Opposition to Motion – ECF No. 50. 5 Compl. ¶¶ 20–22.
24 6 Id. ¶ 27.
25 7 Id. ¶ 28.
26 8 Id. 9 Id. ¶ 24.
27 10 Id. ¶ 3.
28 11 Id. ¶ 4.

ORDER — No. 16-cv-03539-LB

2

United States District Court Northern District of California

1 young women seeking abortion from their programs, and to expel young women who ask for an 2 abortion.”12 And ORR has “facilitate[d] the ostracization of young women who have accessed or

3 seek to access abortion” by placing (and transferring) women based on grantees’ religious

4 objections.13

5

USCCB is one such ORR-funded religious organization.14 “USCCB does not provide services

6 directly to unaccompanied immigrant minors, but instead issues subgrants to Catholic Charities 7 and other organizations that do so.”15 USCCB prohibits its subgrantees from providing 8 contraception- and abortion-related information or services.16 Indeed, the USCCB–subgrantee

9 cooperative agreement contains the following “conscience provision”:

10

[subgrantees] must ensure that services provided to those served under this

Agreement are not contrary to the authentic teaching of the Catholic Church, its

11

moral convictions, and religious beliefs. Accordingly, [USCCB] expects that the

Sub-recipient will provide services under this Agreement within certain parameters

12

including, among other things, that the Sub-recipient will not provide, refer, encourage, or in any way facilitate access to contraceptives or abortion services.17

13 Despite USCCB’s contraception and abortion objections, ORR granted it nearly $10 million in

14 2014.18And because of its objections, ORR removed from its cooperative agreements language

15 requiring grantees to refer minors to care providers for “approved family planning methods and

16 services” and “information and counseling regarding prenatal care and delivery; infant care, foster

17 care, or adoption; and pregnancy termination.”19

18

Through its grants, the ALCU alleges, “ORR has authorized USCCB and other grantees to

19 impose religiously based restrictions on young women’s access to reproductive health care.”20

20 Thus, it charges, the defendants have “violated the Establishment Clause by failing to remain

21

22 12 Id. ¶ 5.
23 13 See id. ¶¶ 39–40. 14 Id. ¶ 4.
24 15 Id. ¶ 25.
25 16 Id. ¶ 35.
26 17 Id. 18 Id. ¶ 5.
27 19 Id. ¶¶ 32–34.
28 20 Id. ¶ 7.

ORDER — No. 16-cv-03539-LB

3

United States District Court Northern District of California

1 neutral with respect to religion, by subsidizing grantees’ religious beliefs to the detriment of

2 unaccompanied immigrant minors, and by underwriting religious restrictions on vital government3 funded services.”21

4

And so the ACLU sued the government, including the Secretary of Health and Human

5 Services, the Acting Secretary of the Administration for Children and Families, and the Director 6 of ORR.22 The ACLU seeks an injunction ordering the defendants to issue grants “without the 7 imposition of religiously based restrictions.”23 The court previously denied the government’s 8 motion to dismiss and held that the ACLU has standing to bring its Establishment Clause claim.24 9 USCCB now moves to intervene as a defendant.25

10

11

GOVERNING LAW

12

“On timely motion, the court may permit anyone to intervene who . . . has a claim or defense

13 that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B).

14 An applicant requesting permissive intervention “must prove that it meets three threshold

15 requirements: (1) it shares a common question of law or fact with the main action; (2) its motion is

16 timely; and (3) the court has an independent basis for jurisdiction over the applicant’s claims.”

17 Donnelly v. Glickman, 159 F.3d 405, 412 (9th Cir. 1998) (citing Nw. Forest Resource Council v.

18 Glickman, 82 F.3d 825, 839 (9th Cir. 1996)). “Even if an applicant satisfies those threshold

19 requirements, the district court has discretion to deny permissive intervention.” Id.

20

The court in its discretion may consider factors such as “the nature and extent of the

21 intervenors’ interest,” “whether the intervenors’ interests are adequately represented by other

22 parties,” and “whether parties seeking intervention will significantly contribute to full

23 development of the underlying factual issues in the suit and to the just and equitable adjudication

24

25 21 Id.
26 22 Id. ¶¶ 16–18. 23 Id., Prayer ¶ 2.
27 24 See Order – ECF No. 25.
28 25 See generally Motion to Intervene.

ORDER — No. 16-cv-03539-LB

4

United States District Court Northern District of California

1 of the legal questions presented.” See Spangler v. Pasadena City Bd. of Educ., 552 F.2d 1326,

2 1329 (9th Cir. 1977). Judicial economy is also relevant. Venegas v. Skaggs, 867 F.2d 527, 531 (9th

3 Cir. 1989), aff’d sub nom. Venegas v. Mitchell, 495 U.S. 82 (1990). The court must, however,

4 “consider whether intervention will unduly delay the main action or will unfairly prejudice the

5 existing parties.” Donnelly, 159 F.3d at 412.

6

7

ANALYSIS

8

USCCB requests permissive intervention.26 It agreed at the hearing that the court could limit

9 its analysis to permissive intervention. The government does not oppose the request for permissive 10 intervention but suggests that filing an amicus curiae brief is a superior model.27 The ACLU, on

11 the other hand, objects on two grounds, arguing: (1) the defendants will adequately represent

12 USCCB’s interests, and (2) USCCB’s “vexatious litigation tactics” to date suggest that they will 13 unduly delay or prejudice the proceedings.28

14

The threshold requirements for permissive intervention are satisfied. USCCB shares common

15 questions of both law and fact with the main action — namely, whether the government’s grants to

16 USCCB violated the establishment clause. The motion is timely because it was filed less than a

17 month after the court’s order on the government’s motion to dismiss and before the government

18 answered the complaint. Intervention came six months after the ACLU filed its complaint but any

19 delay was to permit the resolution of the motion to dismiss. And, finally, “[w]here the proposed

20 intervenor in a federal-question case brings no new claims, the jurisdictional concern drops away.”

21 Freedom from Religion Found. v. Geithner, 644 F.3d 836, 844 (9th Cir. 2011) (citing 7C Wright,

22 Miller & Kane, Fed. Prac. & Proc. § 1917 (3d ed. 2010)). The court thus turns to the discretionary

23 factors.

24

25

26 26 Motion to Intervene at 17–19.
27 27 Defendants’ Opposition to Motion at 6–7.
28 28 ACLU’s Opposition to Motion at 13–14.

ORDER — No. 16-cv-03539-LB

5

United States District Court Northern District of California

1

First, the ACLU argues that the government will adequately represent USCCB’s interests in

2 the litigation. Identity of interests and adequacy of representation may counsel against permissive

3 intervention. See Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 955 (9th Cir. 2009).

4 But the government and USCCB have at least potentially divergent interests — for example,

5 USCCB has monetary and religious interests that the government does not share. This factor alone

6 does not support denying intervention.

7

Second, the ACLU points to USCCB’s obstreperous disagreements about scheduling issues.

8 On this record, the court does not conclude that USCCB engaged in dilatory or prejudicial

9 conduct.

10

USCCB’s financial, moral, and religious interests in the litigation are significant. Its

11 participation will contribute to the development of the factual and legal landscape. And the court

12 cannot see how intervention will prejudice the existing parties. In sum, permissive intervention is

13 appropriate, and the court grants USCCB’s motion. The court will not now impose restrictions on

14 USCCB’s role in the case, for example, to “prevent needless duplication and delay,” as the ACLU 15 requests.29 The court will address case-management issues when they arise.

16

17

CONCLUSION

18

The court grants USCCB’s motion for permissive intervention.

19

20

IT IS SO ORDERED.

21

Dated: February 7, 2017

22

______________________________________

23

LAUREL BEELER United States Magistrate Judge

24

25

26

27

28 29 Id. at 15.

ORDER — No. 16-cv-03539-LB

6

 
 Case 3:16-cv-03539-LB Document 62 Filed 03/09/17 Page 1 of 8

1 CHAD A. READLER Acting Assistant Attorney General
2 SHEILA M. LIEBER Deputy Director
3 PETER J. PHIPPS (DC Bar 502904) Senior Trial Counsel
4 ADAM GROGG (N.Y. Bar) Trial Attorney
5 Civil Division, Federal Programs Branch United States Department of Justice
6 P.O. Box 883 Ben Franklin Station Washington, DC 20530
7 Telephone: (202) 616-8482 Fax: (202) 616-8470
8 Email: peter.phipps@usdoj.gov Counsel for Defendants
9

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12 AMERICAN CIVIL LIBERTIES UNION OF
13 NORTHERN CALIFORNIA,

Civil No. 3:16-cv-3539-LB

14

Plaintiff,

15

vs.

16 THOMAS E. PRICE, M.D.,1 Secretary of Health and Human Services, et al.,
17 Defendants.
18

DEFENDANTS’ MOTION TO TRANSFER VENUE

Date:

April 13, 2017

Time:

9:30 a.m.

Courtroom: Courtroom C, 15th Floor

Judge:

Hon. Laurel Beeler

19

20

21

22

23

24

25

26

27
1 Pursuant to Federal Rule of Civil Procedure 25(d), Thomas E. Price, M.D., is automatically substituted as a
28 defendant in his official capacity as Secretary of Health and Human Services for Sylvia Mathews Burwell.
MOTION TO TRANSFER VENUE CV 16-3539-LB

Case 3:16-cv-03539-LB Document 62 Filed 03/09/17 Page 2 of 8

1

NOTICE OF MOTION AND MOTION TO TRANSFER VENUE

2

PLEASE TAKE NOTICE THAT on April 13, 2017, at 9:30 a.m., before the

3 Honorable Laurel Beeler, Courtroom C, 15th Floor, San Francisco Courthouse, 450 Golden

4 Gate Avenue, San Francisco, California, 94102, Defendants Thomas E. Price, M.D., in his

5 official capacity as Secretary of Health and Human Services (“HHS”), Amanda Barlow, in her

6 official capacity as Acting Assistant Secretary for the Administration for Children and Families,

7 and Kenneth Tota, in his official capacity as Acting Director of the Office of Refugee

8 Resettlement, will and hereby do move for an order transferring this case to the United States

9 District Court for the District of Columbia.

10

Defendants move to transfer this action to the District Court for the District of Columbia

11 pursuant to 28 U.S.C. § 1404(a) for the convenience of the parties and witnesses, and for the

12 interests of justice. The bases for defendants’ Motion to Transfer are this Notice of Motion; the

13 accompanying Memorandum of Points and Authorities; the pleadings and court filings in this

14 action, including plaintiff’s Amended Complaint; the parties’ Initial Disclosures (attached as

15 exhibits); any matter that may be judicially noticed, including September 2016 data from the

16 United States Courts; and any other matter presented before the Court through oral argument,

17 supplemental briefing, or otherwise.

18

STATEMENT OF ISSUES TO BE DECIDED

19

Pursuant to N.D. Cal. Civ. R. 7-4(a)(3), defendants identify the following issues to be

20 decided:

21

1. Whether venue would otherwise be proper in the District Court for the District of

22 Columbia.

23

2. Whether transfer to the District Court for the District of Columbia is more

24 convenient for the parties and the witnesses, and furthers the interests of justice.

25

26

27

28

MOTION TO TRANSFER VENUE CV 16-3539-LB
1

Case 3:16-cv-03539-LB Document 62 Filed 03/09/17 Page 3 of 8

1

MEMORANDUM OF POINTS AND AUTHORITIES

2

INTRODUCTION

3

This case has no meaningful nexus to the Northern District of California and should be

4 transferred under 28 U.S.C. § 1404 to the United States District Court for the District of

5 Columbia. The two federal programs challenged in the Amended Complaint – the

6 unaccompanied alien children program and the human trafficking victims program – are both

7 administered by components of the Department of Health and Human Services (“HHS”) in

8 Washington, D.C. Specifically, the Office of Refugee Resettlement (“ORR”), within the

9 Administration for Children and Families (“ACF”) at HHS, awards and administers grants and

10 cooperative agreements under the unaccompanied alien children program. Similarly, the Office

11 of Trafficking in Persons (“OTIP”), also within ACF, awards and administers grants and

12 cooperative agreements for time-limited comprehensive case management services for certain

13 foreign human trafficking victims. As evidenced by the recently exchanged initial disclosures,

14 all of plaintiff’s and defendants’ witnesses are from ORR or for OTIP in Washington, D.C. The

15 initial disclosures also reveal that the documents that plaintiff intends to use to support its claims

16 were produced by HHS from Washington, D.C. The newly added defendant-intervenor, the

17 United States Conference of Catholic Bishops (“USCCB”), is also located in Washington, D.C.

18 Finally, transferring the case would further the interests of justice: the District Court for the

19 District of Columbia has half as many cases assigned per judge (250) as does the District Court

20 for the Northern District of California (572).

21

In selecting where to litigate on behalf of its taxpayer members, plaintiff picked the

22 Northern District of California, and it has not consented to this transfer motion (USCCB fully

23 consents to the transfer). Under the circumstances, however, plaintiff’s preferred forum should

24 receive little, if any, weight. First, plaintiff proceeds on a theory of associational standing –

25 solely due to its members’ status as taxpayers – and none of its members are required to

26 participate in the suit. Thus, there is no indication or expectation that any members of the

27 American Civil Liberties Union of Northern California will participate in this suit. Moreover, it

28 is hardly in the interests of justice to permit an organization to select any forum in which at least

MOTION TO TRANSFER VENUE CV 16-3539-LB
2

Case 3:16-cv-03539-LB Document 62 Filed 03/09/17 Page 4 of 8

1 one of its taxpayer members resides. Finally, the links to this forum are even more attenuated

2 because it was the ACLU’s national office – not its Northern California branch – that sued

3 under the Freedom of Information Act to obtain documents cited in the Amended Complaint,

4 and those documents appear to have formed the basis for plaintiff’s allegations in this action.

5 For these reasons, as elaborated below, this case should be transferred to the United States

6 District Court for the District of Columbia.

7

ARGUMENT

8

Motions to transfer under § 1404 are adjudicated based on an “individualized, case-by-

9 case consideration of convenience and fairness.” Stewart Org. v. Ricoh Corp., 487 U.S. 22, 30

10 (1998); accord Kinney v. Takeuchi, No. 3:16-cv-2018-LB, 2016 WL 4268673, at *2 (N.D. Cal.

11 Aug. 15, 2016). In conducting the transfer analysis, courts consider several factors, starting

12 with those articulated in statute. By its text, § 1404 permits a transfer to another district in

13 which the action could have been brought “for the convenience of parties and witnesses, in the

14 interest of justice.” 28 U.S.C. § 1404(a). As a supplement, courts rely on common law

15 considerations, which the Ninth Circuit has identified as the following:

16

(1) the location where the relevant agreements were negotiated and executed,

17

(2) the state that is most familiar with the governing law,

18

(3) the plaintiff’s choice of forum,

19

(4) the respective parties’ contacts with the forum,

20

(5) the contacts relating to the plaintiff’s cause of action in the chosen forum,

21

(6) the differences in the costs of litigation in the two forums,

22

(7) the availability of compulsory process to compel attendance of unwilling non-party

23

witnesses, and

24

(8) the ease of access to sources of proof.

25 Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000); see generally Gulf Oil

26 Corp. v. Gilbert, 330 U.S. 501, 508-09 (1946) (articulating considerations); Decker Coal Co. v.

27 Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986) (same). “Courts may also

28 consider ‘the administrative difficulties flowing from court congestion and the local interest in

MOTION TO TRANSFER VENUE CV 16-3539-LB
3

Case 3:16-cv-03539-LB Document 62 Filed 03/09/17 Page 5 of 8

1 having localized controversies decided at home.’” Kinney, 2016 WL 4268673, at *2 (alterations

2 omitted) (quoting Decker Coal, 805 F.2d at 843). The weight of these considerations indicates

3 that this case should be transferred to the District of Columbia, where venue would otherwise be

4 appropriate.

5 I.

VENUE IS APPROPRIATE IN THE DISTRICT OF COLUMBIA.

6

Venue in this matter is permitted in any of three locations: the defendants’ residence, the

7 place in which a substantial portion of the complained of actions or inactions occurred, or the

8 plaintiff’s residence. See 28 U.S.C. § 1391(e). Accordingly, venue is plainly is proper in the

9 District of Columbia.

10

First, all defendants in this official-capacity action against the Secretary of HHS, the

11 Administrator of ACF, and the Director of ORR reside in Washington, D.C. Second, a

12 substantial portion of the complained of actions occurred in Washington, D.C. In fact, as

13 documented in the parties’ initial disclosures, the challenged decisions regarding the

14 unaccompanied alien children program and the human trafficking program were made by

15 officials and employees who work at HHS in Washington, D.C. See Defs.’ First Suppl. Initial

16 Disclosures at 1-2 (copy attached as Ex. A).

17

Accordingly, this action “might have been brought” in the District of Columbia, and it

18 therefore constitutes a valid transfer venue. 28 U.S.C. § 1404(a).

19 II. THIS ACTION SHOULD BE TRANSFERRED TO THE DISTRICT OF COLUMBIA.

20

A. This action has no meaningful tie to the Northern District of California.

21

This case challenges decisions made by federal agencies in Washington, D.C., and it

22 should be transferred there for the convenience of the parties and witnesses. Plaintiff identifies

23 nine potential witnesses that it intends to rely on, and each of them works for HHS in

24 Washington, D.C. See Pl.’s Suppl. Initial Disclosures at 3-4 (copy attached as Ex. B).

25 Similarly, defendants identify ten potential witnesses that they may use to support their

26 defenses, five of whom appear on plaintiff’s list. See Defs.’ First Suppl. Initial Disclosures at 1-

27 2 (copy attached as Ex. A). Each of those witnesses works for HHS in Washington, D.C. The

28 addition of defendant-intervenor USCCB further underscores the appropriateness of transfer to

MOTION TO TRANSFER VENUE CV 16-3539-LB
4

Case 3:16-cv-03539-LB Document 62 Filed 03/09/17 Page 6 of 8

1 the District of Columbia, as USCCB’s headquarters is located in Washington, D.C. Moreover,

2 in its initial disclosures, USCCB identifies six witnesses, one of whom works for ACF, and the

3 others are all tied to USCCB in Washington, D.C. See USCCB’s Initial Disclosures at 2-3

4 (copy attached as Ex. C). Notably, no party has expressed any intention to rely on witnesses

5 identified in the Northern District of California. Because the “relative convenience to the

6 witnesses is often recognized as the most important factor to be considered in ruling on a motion

7 under § 1404(a),” Saleh v. Titan Corp., 361 F. Supp. 2d 1152, 1160 (S.D. Cal. 2005), there is

8 little reason to maintain this action here, where none of the witnesses are located.

9

As with the witnesses, the remaining sources of proof, identified by the parties in their

10 initial disclosures, also originate from the District of Columbia. All documents identified on

11 plaintiff’s and defendants’ initial disclosures are from HHS’s possession in Washington, D.C.

12 See See Defs.’ First Suppl. Initial Disclosures at 2-5 (copy attached as Ex. A); Pl.’s Suppl. Initial

13 Disclosures at 4 (copy attached as Ex. B).2 Similarly, USCCB identifies documents that

14 originate either from HHS or USCCB. See USCCB’s Initial Disclosures at 3-4 (copy attached

15 as Ex. C). Those facts again favor transfer to the District of Columbia. See Saleh,

16 361 F. Supp. 2d at 1167 (citing the fact that relevant documents were “in the possession of the

17 Defense Department and other agencies located in and around the Eastern District of Virginia”

18 in transferring the action to that judicial district).

19

B. Plaintiff’s choice of this judicial district is not entitled to weight.

20

Although plaintiff is based in this judicial district and has selected this judicial district,

21 that should receive little, if any, weight. “‘If the operative facts have not occurred within the

22 forum and the forum has no interest in the parties or subject matter,’ the plaintiff’s choice ‘is

23 entitled only minimal consideration.’” Kinney, 2016 WL 4268673, at *2 (quoting Lou v.

24 Belzberg, 834 F.2d 730, 739 (9th Cir. 1987)); see also Saleh, 361 F. Supp. 2d at 1157-58

25 (“numerous courts have given less deference to the plaintiff’s choice of forum where the action

26

27 2 To the extent that plaintiff has copies of those documents, those were obtained through a FOIA action that has no
nexus to this judicial district: it was initiated by ACLU’s national office, not by the ACLU of Northern California,
28 and it was litigated not in the Northern District of California but in the Southern District of New York. See Am.
Civil Liberties Union v. Dep’t of Health & Human Servs., No. 15-cv-2645 (S.D.N.Y. filed Apr. 6, 2015).

MOTION TO TRANSFER VENUE CV 16-3539-LB
5

Case 3:16-cv-03539-LB Document 62 Filed 03/09/17 Page 7 of 8

1 has little connection with the chosen forum” (collecting cases)); 15 CHARLES ALAN WRIGHT,

2 ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3848 (3d ed.

3 1998) (explaining that a plaintiff’s venue choice should be given less weight if it has no obvious

4 connection to the case). “This is true even if the plaintiff is a resident of the forum.”

5 Chesapeake Climate Action Network v. Export-Import Bank of the United States, No. 13-cv-

6 3532-WHA, 2013 WL 6057824, at *2 (N.D. Cal. Nov. 15, 2013).

7

Here, as demonstrated above, plaintiff has not selected a forum with any “particular

8 interest to the parties or the subject matter.” Pac. Car & Foundry Co. v. Pence, 403 F.2d 949,

9 954 (9th Cir. 1968). In addition, given the hundreds of millions of potential plaintiffs for this

10 action – under plaintiff’s theory, any federal taxpayer or any organization with federal taxpayer

11 members could sue – transferring the case to the District of Columbia, which is the judicial

12 district with the greatest connection to the allegations and claims, is most consistent with the

13 purposes of § 1404. See Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947)

14 (explaining, in the context of a shareholder derivative suit, that plaintiff’s assertion of the

15 appropriate forum is “considerably weakened”); Lou, 834 F.2d at 739 (explaining that when a

16 plaintiff brings a derivative suit or represents a class, the plaintiff’s choice of forum is given less

17 weight); Polaroid Corp. v. Casselman, 213 F. Supp. 379 (S.D.N.Y. 1962) (explaining that

18 plaintiff’s selection of venue is entitled to no weight whatsoever when it appears that the

19 plaintiff was forum shopping and that the selected forum has little or no connection with the

20 parties or the subject matter). Thus, for many of the same reasons as in Kinney, transfer is

21 proper: “defendants . . . work [in the District of Columbia],” the complained of actions occurred

22 there, “and the witnesses are there, [2,845] miles away, outside the reach of [this Court’s]

23 compulsory process.” 2016 WL 4268673, at *2; see Chesapeake Climate, 2013 WL 6057824,

24 at *2-3 (granting motion to transfer where the challenged governmental “decisionmaking . . .

25 occurred exclusively in the District of Columbia,” even where two of the plaintiffs were

26 headquartered in the Northern District of California).

27

28

MOTION TO TRANSFER VENUE CV 16-3539-LB
6

Case 3:16-cv-03539-LB Document 62 Filed 03/09/17 Page 8 of 8

1

C. The Administration of Justice Favors Transfer to the District of Columbia.

2

A comparison of the dockets demonstrates that a transfer to the District of Columbia

3 would be in the interests of justice. Based on statistics from September 30, 2016, the District of

4 Columbia has fewer cases per judge:

5

Actions per Judgeship

6

D.D.C.

N.D. Cal.

Nat’l Avg.

7

Total Filings

212

597

573

8

Civil Filings

180

522

431

9

Pending Cases

250

572

659

10 See United States District Courts – National Judicial Caseload Profile at 1 (national averages),

11 2 (D.D.C. data), 66 (N.D. Cal. data).3 As these figures reveal, the District of Columbia has per-

12 judge dockets that are a fraction of those in this judicial District, and well below the national

13 average. Transferring this action to the District of Columbia is therefore consistent with

14 alleviating “court congestion” and the administration of justice. Decker Coal, 805 F.2d at 843.

15

CONCLUSION

16

For the foregoing reasons, this action should be transferred to the United States District

17 Court for the District of Columbia.

18 March 9, 2017

Respectfully submitted,

19

CHAD A. READLER

Acting Assistant Attorney General

20 SHEILA M. LIEBER

21

Deputy Director

22

/s/ Peter J. Phipps

PETER J. PHIPPS

23

ADAM GROGG (N.Y. Bar)

Civil Division, Federal Programs Branch

24

United States Department of Justice

25

26 3 Available at http://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile0930.2016.pdf. In
assessing court congestion, courts also “consider the median time from filing to disposition or trial.” Chesapeake
27 Climate Action Network, 2013 WL 6057824, at *3. For the year ending in September 2016, the relevant figures for
the District of Columbia and the Northern District of California are not meaningfully different. See United States
28 District Courts – National Judicial Caseload Profile at 2 (7.8 months from filing to disposition for civil cases in the
District of Columbia); id. at 66 (7.4 months for the Northern District of California).

MOTION TO TRANSFER VENUE CV 16-3539-LB
7

Case 3:16-cv-03539-LB Document 62-1 Filed 03/09/17 Page 1 of 22
Exhibit A
Defendants’ First Supplemental Initial Disclosures

Case 3:16-cv-03539-LB Document 62-1 Filed 03/09/17 Page 2 of 22

1 CHAD A. READLER Acting Assistant Attorney General
2 SHEILA M. LIEBER Deputy Director
3 PETER J. PHIPPS (DC Bar 502904) Senior Trial Counsel
4 ADAM GROGG Trial Attorney
5 Civil Division, Federal Programs Branch United States Department of Justice
6 P.O. Box 883 Ben Franklin Station Washington, DC 20044
7 Telephone: (202) 616-8482 Fax: (202) 616-8470
8 Email: peter.phipps@usdoj.gov Counsel for Defendants
9

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12 AMERICAN CIVIL LIBERTIES UNION OF
13 NORTHERN CALIFORNIA,

Civil No. 3:16-cv-3539-LB

14

15

vs.

Plaintiff,

DEFENDANTS’ FIRST SUPPLEMENTAL INITIAL DISCLOSURES

16 THOMAS E. PRICE, M.D., Secretary of Health and Human Services. et al.,
17 Defendants.
18

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ FIRST SUPPLEMENTAL INITIAL DISCLOSURES CV 16-3539-LB

Case 3:16-cv-03539-LB Document 62-1 Filed 03/09/17 Page 3 of 22

1

Pursuant to Federal Rule of Civil Procedure 26(e)(1)(A), defendants Thomas E. Price,

2 M.D., in his official capacity as Secretary of Health and Human Services (“HHS”), Amanda

3 Barlow, in her official capacity as Acting Assistant Secretary for the Administration of

4 Children and Families (“ACF”), and Kenneth Tota, in his official capacity as Director of the

5 Office of Refugee Resettlement (“ORR”), hereby provide the following first supplemental

6 initial disclosures.

7 A. 8

Identifying information for each individual likely to have discoverable information used to support defendants’ defenses along with the subject matter of the discoverable information.

9

Pursuant to Federal Rule of Civil Procedure 26(a)(1)(A)(i), defendants identify the

10 following persons:

11

1. James De La Cruz, Federal Field Specialist Supervisor, ORR, 330 C Street, SW,

12

Washington, D.C. 20201.

13

Knowledge regarding ORR administration and practices.

14

2. Jallyn Sualog, Director, Division of Children’s Services, ORR, 330 C Street, SW,

15

Washington, D.C. 20201.

16

Knowledge regarding ORR administration and practices.

17

3. Curi Kim, Division of Refugee Health, ORR, 330 C Street, SW, Washington,

18

D.C. 20201.

19

Knowledge regarding ORR medical services.

20

4. Elizabeth Sohn, Formerly Policy Analyst, ORR, 330 C Street, SW, Washington

21

D.C. 20201.

22

Knowledge regarding regulations codified at 45 C.F.R. Part 411.

23

5. Anna Marie Bena, Director, Division of Policy, ORR, 330 C Street, SW,

24

Washington, D.C. 20201.

25

Knowledge regarding ORR policy and practice.

26

6. Toby Biswas, Division of Policy, ORR, 330 C Street, SW, Washington, D.C.

27

20201.

28

Knowledge regarding ORR policy and practice.

DEFENDANTS’ FIRST SUPPLEMENTAL INITIAL DISCLOSURES CV 16-3539-LB
1

Case 3:16-cv-03539-LB Document 62-1 Filed 03/09/17 Page 4 of 22

1

7. Victor Suh, Policy Division, ORR, 330 C Street, SW, Washington, D.C. 20201.

2

Knowledge regarding statistics for unaccompanied children requests for medical

3

services.

4

8. Daphne Weeden, Office of Grants Management, ACF, 330 C Street, SW,

5

Washington, D.C. 20201.

6 Knowledge of review and scoring of grant applications for the provision of

7
residential services to unaccompanied children and victims of trafficking. 8

9

9. Katherine Chon, Director, Office on Trafficking in Persons (OTIP), 330 C

10

Street, SW, Washington, D.C. 20201.

11

Knowledge regarding OTIP policy and practice and USCCB grant for victims of

12

trafficking.

13 10. Sherri Harris, Program Specialist, OTIP, 330 C Street, SW, Washington, D.C.
14 20201.
15

16

Knowledge regarding USCCB grant for victims of trafficking.

17 B. 18

Copies or descriptions of documents, electronically stored information, or tangible things that defendants have in their possession, custody, or control, that defendants may use to support their defenses.

19

Pursuant to Federal Rule of Civil Procedure 26(a)(1)(A)(ii), defendants identify the

20 following documents and electronic information:

21

•

Fiscal Year 2014-2016 Grant Announcements, Applications, and Notices of

22

Award – for grant awardees with potential faith-based objections to providing or

23

referring for abortion or contraception. Daphne Weeden, Office of Grants

24

Management, 330 C Street, SW, Washington, D.C. 20201, and Judith Haron,

25

Office of the General Counsel, 330 Independence Avenue, SW, Washington,

26

D.C. 20201.

27

•

Fiscal Year 2014-2016 Scoring and Evaluation Data – for grant awardees with

28

potential faith-based objections to providing or referring for abortion or

DEFENDANTS’ FIRST SUPPLEMENTAL INITIAL DISCLOSURES CV 16-3539-LB
2

Case 3:16-cv-03539-LB Document 62-1 Filed 03/09/17 Page 5 of 22

1

contraception (to be produced following entry of a protective order). Daphne

2

Weeden, Office of Grants Management, 330 C Street, SW, Washington, D.C.

3

20201.

4

•

Administration for Children and Families, Office of Refugee Resettlement,

5

Residential services for Unaccompanied Alien Children, HHS-2014-ACF-ORR-

6

ZU-0608; available at: https://ami.grantsolutions.gov/files/HHS-2014-ACF-

7

ORR-ZU-0608_0.htm.

8

•

ORR Guide: “Children Entering the United States Unaccompanied,” available

9

at www.acf.hhs.gov/orr/resource/children-entering-the-united-states-

10

unaccompanied.

11

•

ACF Policy on Grants to Faith-Based Organizations, available at:

12

https://www.acf.hhs.gov/acf-policy-on-grants-to-faith-based-organizations

13

•

Memorandum re Medical Services Requiring Heightened ORR Involvement

14

(Mar. 21, 2008), available at

15

www.acf.hhs.gov/sites/default/files/orr/medical_services_requiring_heightened

16

_orr_involvement.pdf.

17

•

Congressional Research Service, Unaccompanied Children, An Overview

18

(May 11, 2016) (available at: https://fas.org/sgp/crs/homesec/R43599.pdf).

19

Office of Refugees Resettlement: Facts and Data, available at

20

https://www.acf.hhs.gov/orr/about/ucs/facts-and-data.

21

•

Office of Refugees Resettlement: Unaccompanied Children Frequently Asked

22

Questions, available at https://www.acf.hhs.gov/orr/unaccompanied-children-

23

frequently-asked-questions.

24

•

Administration for Children and Families 2017 Justification or Estimates for

25 Appropriations Committees, available at
26 https://www.acf.hhs.gov/sites/default/files/olab/final_cj_2017_print.pdf.
27

28

DEFENDANTS’ FIRST SUPPLEMENTAL INITIAL DISCLOSURES CV 16-3539-LB
3

Case 3:16-cv-03539-LB Document 62-1 Filed 03/09/17 Page 6 of 22

1

•

TVAP funding Opportunity Announcements (FOA) (2015) Daphne Weeden,

2

Office of Grants Management, 330 C Street, SW, Washington, D.C. 20201.

3

•

Grant Applications, USCCB (2015, 2015 updated, 2016 continuation application,

4

2016 updated). Daphne Weeden, Office of Grants Management, 330 C Street, 5

6

SW, Washington, D.C. 20201.

7

•

Cooperative Agreements for TVAP with USCCB (2015). Daphne Weeden,

8

Office of Grants Management, 330 C Street, SW, Washington, D.C. 20201.

9

•

Notices of Award, TVAP, USCCB (2015, 2016). Daphne Weeden, Office of

10

11

Grants Management, 330 C Street, SW, Washington, D.C. 20201.

12

•

Subgrantees MOU template submitted by USCCB for TVAP. Katherine Chon,

13

Director, OTIP, 330 C Street, SW, Washington, D.C. 20201.

14

•

USCCB TVAP Brochures. Katherine Chon, Director, OTIP, 330 C Street, SW,

15

Washington, D.C. 20201. 16

17

•

USCCB TVAP Program Manual. Katherine Chon, Director, OTIP, 330 C Street,

18

SW, Washington, D.C. 20201.

19

•

Fiscal Year 2015 USCCB Scoring and Evaluation Data – for grant awardees for

20 victims of trafficking (to be produced following entry of a protective order).
21 Daphne Weeden, Office of Grants Management, 330 C Street, SW, Washington,
22

23

D.C. 20201.

24

•

TVAP Funding Decision Package 2015 (to be produced following entry of a

25

protective order). Daphne Weeden, Office of Grants Management, 330 C Street,

26

SW, Washington, D.C. 20201.

27

28

DEFENDANTS’ FIRST SUPPLEMENTAL INITIAL DISCLOSURES CV 16-3539-LB
4

Case 3:16-cv-03539-LB Document 62-1 Filed 03/09/17 Page 7 of 22

1

•

USCCB Performance Reports for TVAP 2015 grant. Katherine Chon, Director,

2

OTIP Katherine Chon, Director, OTIP, 330 C Street, SW, Washington, D.C.

3 20201.

4

•

Federal Human Trafficking Strategic Action Plan.

5

6

https://www.ovc.gov/pubs/FederalHumanTraffickingStrategicPlan.pdf

7

•

Documents indicating regions serviced by grantees and subgrantees.

8 C. Computations for each category of damages claimed.

9

Pursuant to Federal Rule of Civil Procedure 26(a)(1)(A)(iii), defendants make no

10 disclosure because they have not pleaded any counter-claim, and they seek no damages in this

11 action.

12 D. Insurance agreements for indemnification.

13

Pursuant to Federal Rule of Civil Procedure 26(a)(1)(A)(iv), defendants make no

14 disclosure because they have no insurance agreement for indemnification applicable to this

15 action.

16

17 March 8, 2017 18 19 20 21 22 23 24 25

Respectfully served,
CHAD A. READLER Acting Assistant Attorney General
SHEILA M. LIEBER Deputy Director
/s/ Peter J. Phipps PETER J. PHIPPS Senior Trial Counsel ADAM GROGG Trial Attorney Civil Division, Federal Programs Branch United States Department of Justice

26

27

28

DEFENDANTS’ FIRST SUPPLEMENTAL INITIAL DISCLOSURES CV 16-3539-LB
5

Case 3:16-cv-03539-LB Document 62-1 Filed 03/09/17 Page 8 of 22

1

CERTIFICATE OF SERVICE

2

I hereby certify that I served Defendants’ First Supplemental Initial Disclosures upon

3 plaintiff’s counsel, through email to bamiri@aclu.org and upon counsel for defendant-

4 intervenor through email to RDunn@gibsondunn.com.

5

6 March 8, 2017 7

/s/ Peter J. Phipps Peter J. Phipps Counsel for Defendants

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ FIRST SUPPLEMENTAL INITIAL DISCLOSURES CV 16-3539-LB
6

Case 3:16-cv-03539-LB Document 62-1 Filed 03/09/17 Page 9 of 22
Exhibit B
Plaintiff’s Supplemental Initial Disclosures

Case 3:16-cv-03539-LB Document 62-1 Filed 03/09/17 Page 10 of 22

1 ELIZABETH O. GILL (SBN 218311) JENNIFER L. CHOU (SBN 304838)

2 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC.

3 39 Drumm Street San Francisco, CA 94111

4 T: (415) 621-2493 F: (415) 255-8437

5 Email: egill@aclunc.org Email: jchou@aclunc.org

6 BRIGITTE AMIRI (pro hac vice)

7

AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor

8 New York, New York 10004 T: (212) 549-2633

9 F: (212) 549-2652 Email: bamiri@aclu.org

10 Email: bhauss@aclu.org

11 Attorneys for Plaintiff [ADDITIONAL COUNSEL ON FOLLOWING PAGE]
12

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15

SAN FRANCISCO DIVISION

16
AMERICAN CIVIL LIBERTIES UNION OF 17 NORTHERN CALIFORNIA,

18

Plaintiff,

19 v.
20 THOMAS E. PRICE, Secretary of Health and
21 Human Services, et al.

22

Defendants.

23 and
24 U.S. CONFERENCE OF CATHOLIC
25 BISHOPS,

26

Defendant-Intervenor

27

Case No. 3:16-cv-3539-LB
SUPPLEMENT TO PLAINTIFF’S INITIAL DISCLOSURES PURSUANT TO FED. R. CIV. P. 26(e)

28
1

Case 3:16-cv-03539-LB Document 62-1 Filed 03/09/17 Page 11 of 22

1 MELISSA GOODMAN (SBN 289464)

2

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA

3

1313 West 8th Street Los Angeles, CA 90017

4

T: (213) 977-9500 F: (213) 977-5299

5 Email: mgoodman@aclusocal.org

6

DANIEL MACH (pro hac vice) AMERICAN CIVIL LIBERTIES UNION FOUNDATION

7

915 15th Street NW Washington, DC 20005

8

T: (202) 675-2330 Email: dmach@aclu.org

9 Attorneys for Plaintiff

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
2

AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. PRICE ET. AL.,
PLAINTIFF’S SUPPLEMENTAL DISCLOSURES, CIVIL NO. 3:16-CV-3539-LB

Case 3:16-cv-03539-LB Document 62-1 Filed 03/09/17 Page 12 of 22

1

Pursuant to Fed. R. Civ. P. 26(e)(1), Plaintiff hereby supplements its initial disclosures,

2 originally served on January 13, 2017. Plaintiff reserves the right to modify or supplement these

3 initial disclosures upon the discovery of new evidence or information or in light of new issues

4 that may arise.

5 I. Individuals Likely to Have Discoverable Information

6

Pursuant to Federal Rule of Civil Procedure 26(a)(1)(A)(i), Plaintiff identifies below the

7 names and contact information of individuals who it believes are likely to have discoverable

8 information that Plaintiff may use to support its claims or defenses in this action (not including

9 individuals who have discoverable information relevant solely for impeachment).

10

Plaintiff incorporates into its list of persons who may have discoverable information that

11 Plaintiff may rely upon to support its claims or defenses: all persons identified in initial

12 disclosures served by Defendants and Defendant-Intervenor; all persons identified by any party

13 in answers to interrogatories; all persons deposed in this action; all expert witnesses designated

14 by any party; and all persons referred to in documents produced in this litigation. Plaintiff is not

15 presently aware of all of the persons associated with Defendants and Defendant-Intervenor that

16 may have relevant knowledge, but has listed below those of which it is presently aware.

17 Name

Subject Matter

Contact

18

Kenneth Tota, Acting Director ORR’s policy and procedures

of Office of Refugee

related to medical care for

Defendants’ counsel

19 Resettlement, ORR

unaccompanied immigrant minors/process for considering

20

requests for

abortion/placements based on

21

abortion requests, and/or

22

policies related to reproductive health care for trafficking

23 Elizabeth Sohn, Policy
24 Analyst, ORR

victims Same as above

Defendants’ counsel

Tricia Swartz, Associate 25 Deputy Director, ORR

Same as above

Defendants’ counsel

26 Jallyn Sualog, Division Director, Division of

Same as above

Defendants’ counsel

27 Children’s Services
Toby Biswas, Program 28

Same as above

Defendants’ counsel

3

AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. PRICE ET. AL.,
PLAINTIFF’S SUPPLEMENTAL DISCLOSURES, CIVIL NO. 3:16-CV-3539-LB

Case 3:16-cv-03539-LB Document 62-1 Filed 03/09/17 Page 13 of 22

1

Specialist, ORR James De La Cruz, Senior

Same as above

Defendants’ counsel

2 Federal Field Specialist, ORR

Katherin Chon, Director,

Same as above

Defendants’ counsel

3 Office on Trafficking in

Persons 4 Maggie Wynne, Director of

Same as above

Defendants’ counsel

5 Victim Assistance Programs, Office on Trafficking in

6 Persons

Kristyn Peck, Associate 7 Director, Children Services,

Implementation of USCCB’s USCCB’s counsel grant to care for unaccompanied

8

U.S. Conference of Catholic Bishops

immigrant minors.

9 II. Categories of Relevant Documents

10

Pursuant to Federal Rule of Civil Procedure 26(a)(1)(A)(ii), Plaintiff has identified the

11 following documents and tangible things in its possession, custody, or control that may be used

12 to support its claims or defenses, unless solely for impeachment:

13

• Documents produced in response to a Freedom of Information Act lawsuit relating to

14

Defendants’ unaccompanied immigrant minor program, ACLU v. Department of Health

15

and Human Services, No. 1:15-cv-02645 (S.D.N.Y. Apr. 6, 2015);

16

• Documents program produced in response to a Freedom of Information Act lawsuit

17

relating to Defendants’ unaccompanied immigrant minor and trafficking victims

18

programs, ACLU v. Administration for Children and Families, No. 1:16-cv-01987

19

(S.D.N.Y. Mar. 17, 2016);

20 III. Computation of Damages

21

Plaintiff no longer seeks nominal damages and therefore make no disclosures pursuant to

22 Federal Rule of Civil Procedure 26(a)(1)(A)(iii).

23 IV. Insurance Agreements

24

Plaintiff is unaware of any insurance agreements applicable to the claims in this action

25 and therefore make no disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1)(A)(iv).

26

27 Dated: March 9, 2017 28

Respectfully submitted, 4

AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. PRICE ET. AL.,
PLAINTIFF’S SUPPLEMENTAL DISCLOSURES, CIVIL NO. 3:16-CV-3539-LB

Case 3:16-cv-03539-LB Document 62-1 Filed 03/09/17 Page 14 of 22

1

By: /s/ Brigitte Amiri ________ Brigitte Amiri*

2 Attorney for Plaintiff
3 * Appearing pro hac vice
4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
5

AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. PRICE ET. AL.,
PLAINTIFF’S SUPPLEMENTAL DISCLOSURES, CIVIL NO. 3:16-CV-3539-LB

Case 3:16-cv-03539-LB Document 62-1 Filed 03/09/17 Page 15 of 22
Exhibit C
USCCB’s Initial Disclosures

Case 3:16-cv-03539-LB Document 62-1 Filed 03/09/17 Page 16 of 22

1 Robert E. Dunn, SBN 275600 GIBSON, DUNN & CRUTCHER LLP
2 1881 Page Mill Road Palo Alto, CA 94304
3 Telephone: 650.849.5300 Facsimile: 650.849.5333
4 Email: rdunn@gibsondunn.com

5 Daniel Nowicki, SBN 304716 GIBSON, DUNN & CRUTCHER LLP
6 333 South Grand Avenue Los Angeles, CA 90071-3197
7 Telephone: 213.229.7040 Facsimile: 213.229.6640
8 Email: dnowicki@gibsondunn.com

9 Eugene Scalia, SBN 151540 GIBSON, DUNN & CRUTCHER LLP
10 1050 Connecticut Avenue, N.W. Washington, DC 11101
11 Telephone: 202.955.8500 Facsimile: 202.467.0539
12 Email: escalia@gibsondunn.com

13 Attorneys for Defendant-Intervenor UNITED STATES CONFERENCE OF
14 CATHOLIC BISHOPS

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17

SAN FRANCISCO DIVISION

18 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA,
19 Plaintiff,
20 v.
21 THOMAS E. PRICE, Secretary of Health and
22 Human Services, et al.,

CASE NO. 3:16-cv-3539-LB UNITED STATES CONFERENCE OF CATHOLIC BISHOPS’ INITIAL DISCLOSURES PURSUANT TO RULE 26(a)(1)

23

Defendants.

24

25

26

27

28

Gibson, Dunn & Crutcher LLP

i
USCCB'S INITIAL DISCLOSURES – CASE NO. 3:16-CV-3539-LB

Case 3:16-cv-03539-LB Document 62-1 Filed 03/09/17 Page 17 of 22

1

Pursuant to Rule 26(a)(1) of the Federal Rules of Civil Procedure, Defendant-Intervenor

2 United States Conference of Catholic Bishops (“USCCB”) provides the following initial disclosures.

3 PRELIMINARY STATEMENT
4 The following disclosures are based on information reasonably available to USCCB at this
5 time. Because USCCB has not completed its factual investigation in this action, has not completed
6 discovery in this action, and has not completed preparation for trial, it is impossible for USCCB to
7 determine at this time all the witnesses or documents that it may use to support his claims or
8 defenses. As this litigation proceeds, facts, information, evidence, and documents may be discovered
9 that are not set forth in these disclosures. USCCB reserves the right to augment, amend, or
10 supplement these disclosures and the information contained herein pursuant to Rule 26(e) of the
11 Federal Rules of Civil Procedure. Accordingly, USCCB makes these initial disclosures without
12 waiving its right to identify witnesses, information, and documents that it discovers subsequently, and
13 reserves the right to use or rely on such witnesses, information or documents at the time of any
14 hearing or trial in this proceeding.
15 The disclosures made below are provided without waiving USCCB’s rights (1) to object on
16 any appropriate ground to the use of any information disclosed herein for any purpose; and (2) to
17 object to any future discovery requests relating to the subject matter of the disclosures made herein.
18 Further, nothing in these disclosures is intended to waive any protections available pursuant to the
19 attorney-client privilege, the work product doctrine, or any other applicable privileges.
20 DISCLOSURES
21

22 A. Identification of Individuals

23

Pursuant to Rule 26(a)(1)(A)(i), and based on the allegations in the First Amended Complaint

24 (“FAC”), USCCB hereby identifies the individuals likely to have discoverable information that

25 USCCB may use to support its defense, excluding individuals likely to have discoverable information

26 that USCCB may use solely for impeachment. A description of the subject of such information each

27 individual may possess is included in the list below.

28

Gibson, Dunn & Crutcher LLP

1
USCCB'S INITIAL DISCLOSURES – CASE NO. 3:16-CV-3539-LB

Case 3:16-cv-03539-LB Document 62-1 Filed 03/09/17 Page 18 of 22

1

The inclusion of a name on this list is not a statement by USCCB that a named individual

2 necessarily has discoverable information. This list does not include experts and/or consultants who

3 might be retained.

4

USCCB does not authorize communication by Plaintiff or any other party with current or

5 former employees or consultants of USCCB, and nothing herein should be construed to authorize

6 Plaintiff or any other party to contact any individual where such contact would violate applicable law,

7 abridge any rule of professional conduct, induce the breach of any contract, or infringe on any

8 confidentiality agreement.

9

10

Name

Contact Information

Subject of Potential Discoverable Information

11

May be

Can speak to the following:

Johnny Young,

contacted

• HHS Notice of Awards to USCCB for services

12 (Former) Executive

13

Director, USCCB department of

14 Migration and Refugee Services

through counsel for USCCB.

to unaccompanied children in 2014 • USCCB/MRS Proposal for Residential Services
for UC for FY14—FY16 • USCCB/MRS Cooperative Agreement for
Residential Services for UC for FY11-13 • USCCB’s MOUs with subgrantees for

15 (MRS)

residential services for unaccompanied children

for the award period beginning in FY14.

16

May be

Can speak to the following:

17 Kristyn Peck,

contacted

• HHS Notice of Awards to USCCB for services

18 19

Associate Director of Children’s Services, USCCB/MRS

through counsel for USCCB.

to unaccompanied children in 2014 • USCCB/MRS Proposal for Residential Services
for UC for FY14—FY16 • USCCB’s MOUs with subgrantees for

residential services for unaccompanied children

20

for the award period beginning in FY14.

21

Fr. Peter Ryan, SJ,

May be contacted

Can speak to preparation and negotiation of the final USCCB/MRS Trafficking Victims Assistance

22 (Former) Executive through counsel Program (TVAP) application.

Director, USCCB

for USCCB.

23 Office on Doctrine

24

May be

Same as above

Richard Doerflinger, contacted

25 (Retired) Associate through counsel

26

Director of the

for USCCB.

Secretariat of Pro-Life

27 Activities

28 William Canny,

May be contacted

Same as above

Gibson, Dunn & Crutcher LLP

2
USCCB'S INITIAL DISCLOSURES – CASE NO. 3:16-CV-3539-LB

Case 3:16-cv-03539-LB Document 62-1 Filed 03/09/17 Page 19 of 22

1 Executive Director,

through counsel

2 USCCB Office on Migration and

for USCCB.

3 Refugee Services

(MRS). 4

May be

Can speak to the following:

5 Hillary Chester,

contacted

• Preparation and negotiation of the final

6 7

Associate Director of Anti-Trafficking Program, USCCB/MRS

through counsel for USCCB.

USCCB/MRS TVAP application; • Subsequent program implementation, including
development and approval of program forms, policies and procedures.

8 Maggie Wynne,
9 (Former) Director,

Unknown

Same as above.

10

Victim Assistance Program, Office on

11 Trafficking in Persons (OTIP)
12

In addition to the individuals identified above, USCCB also reserves the right to call as a 13

witness any witnesses identified in any party’s initial disclosures, any witnesses identified in the 14

course of discovery and any witnesses deposed by any party during the course of this litigation. 15

All current and former employees or consultants of USCCB should be contacted only through 16

USCCB’s attorneys of record in this action, at Gibson, Dunn & Crutcher LLP, 1881 Page Mill Road, 17

Palo Alto, CA 94304; phone: (650) 849-5300 or individual counsel as indicated above. 18

B. Identification of Documents 19

Pursuant to Rule 26(a)(1)(A)(ii), and based on the allegations in the FAC, USCCB identifies 20

the following documents, electronically-stored information, and tangible things potentially in its 21

possession, custody or control that USCCB may use to support its claims or defenses, excluding 22

documents, electronically-stored information, and tangible things that USCCB may use solely for 23

impeachment: 24

25

• USCCB/MRS Proposal for Residential Services for Unaccompanied Children (UC) for

FY14—FY16,

26 • HHS Notice of Awards to USCCB for services to unaccompanied children in 2014,
27

28

• USCCB/MRS Cooperative Agreement for Residential Services for UC for FY11-13,

Gibson, Dunn & Crutcher LLP

3
USCCB'S INITIAL DISCLOSURES – CASE NO. 3:16-CV-3539-LB

Case 3:16-cv-03539-LB Document 62-1 Filed 03/09/17 Page 20 of 22

1

• Public Letter issued by USCCB in response to PREA/VAWA regulation requiring access

2

to reproductive health care for unaccompanied immigrant minors who are subject to

sexual assault

3

• USCCB’s MOUs with subgrantees for residential services for unaccompanied children for

4

the award period beginning in FY14

5

• USCCB/MRS Proposal for Services to Foreign National Victims of Trafficking for FY

6

2016-2018

7

• Amended Proposal for Services to Foreign National Victims of Trafficking FY 2016-2018

8

(submitted to HHS 4/1/16)

9

• HHS Notices of Award to USCCB/MRS for Services to Foreign National Victims of

Trafficking in FY 2016 and 2017 Continuation Award 10

11

• USCCB/MRS Cooperative Agreement for Services to Foreign National Victims of Trafficking in FY 2016

12 • USCCB/MRS TVAP Client Brochure

13 • USCCB/MRS TVAP Client Consent form
14

15

• USCCB/MRS TVAP Program Operation Manual

16

• Email communication between HHS OTIP staff and USCCB/MRS Senior Program Staff

regarding the final language for the Amended Proposal for Services to Foreign National

17

Victims of Trafficking FY 2016-2018 (submitted to HHS 4/1/16)

18 USCCB also intends to rely on documents that other parties will produce through the
19 discovery process in this action or otherwise. USCCB also may rely upon documents and discovery
20 from third parties. USCCB reserves the right to supplement this disclosure should USCCB learn of
21 additional documents, data compilations, and tangible things that it may use in support of his defense.
22 USCCB expressly preserves all objections to the admissibility of any information disclosed
23 under the Federal Rules of Evidence, the Federal Rules of Civil Procedure, and/or the Civil Local
24 Rules of this Court. By identifying the foregoing categories of documents, USCCB does not concede
25 the relevance of specific categories of documents, and specifically reserves all applicable objections,
26 including all privileges and protections (including, but not limited to, the attorney-client privilege
27 and/or the work product doctrine).
28

Gibson, Dunn & Crutcher LLP

4
USCCB'S INITIAL DISCLOSURES – CASE NO. 3:16-CV-3539-LB

Case 3:16-cv-03539-LB Document 62-1 Filed 03/09/17 Page 21 of 22

1 C. Computation of Damages

2

USCCB anticipates seeking USCCB’s costs for defending this action, but makes no

3 disclosure because it has not pleaded any counter-claim, and seeks no damages in this action.

4 D. Insurance Agreements

5

Pursuant to Rule 26(a)(1)(A)(iv), USCCB makes no disclosure because Plaintiff seeks no

6 damages in this action for which an insurance agreement for indemnification would be applicable.

7

Dated: March 9, 2017

8

9

GIBSON, DUNN & CRUTCHER LLP

10

11

By: /s/ Robert E. Dunn

Robert E. Dunn 12

Robert E. Dunn

13

1881 Page Mill Road

Palo Alto, CA 94304

14

Tel: 650.849.5300

Fax: 650.849.5333

15

rdunn@gibsondunn.com

dnowicki@gibsondunn.com 16

Daniel Nowicki

17

333 South Grand Avenue

Los Angeles, CA 90071-3197

18

Tel: 213.229.7040

Fax: 213.229.6640

19

dnowicki@gibsondunn.com

20

Eugene Scalia

1050 Connecticut Avenue, N.W.

21

Washington, DC 11101

Tel: 202.955.8500

22

Fax: 202.467.0539

escalia@gibsondunn.com 23

Attorneys for Defendant-Intervenor United States

24

Conference of Catholic Bishops

25

26

27

28

Gibson, Dunn & Crutcher LLP

5
USCCB'S INITIAL DISCLOSURES – CASE NO. 3:16-CV-3539-LB

Case 3:16-cv-03539-LB Document 62-1 Filed 03/09/17 Page 22 of 22

1

PROOF OF SERVICE

2

I, Robert Dunn, declare as follows:

3

On March 9, 2017, I caused to be served the following document(s):

4

UNITED STATES CONFERENCE OF CATHOLIC BISHOPS’ INITIAL

DISCLOSURES PURSUANT TO RULE 26(a)(1) 5

upon the counsel and by the means of service stated below: 6

7

Brigitte Amiri

American Civil Liberties Union

8

Foundation

125 Broad Street, 18th Floor

9

New York, NY 10004

212.549.2633

10

bamiri@aclu.org

Counsel for Plaintiff American Civil Liberties Union of Northern California

11

Peter J. Phipps

Counsel for Defendants Thomas E. Price, in his

Civil Division, Federal Programs Branch official capacity as Secretary of Health and

12

United States Department of Justice

Human Services; Amanda Barlow, in her

P.O. Box 883 Ben Franklin Station

official capacity as Acting Assistant Secretary

13

Washington, DC 20044

for Children and Families; and Kenneth Tota,

202.616.8482

in his official capacity as Acting Director of the

14

Peter.phipps@usdoj.gov

Office of Refugee Resettlement

15

Adam A. Grogg

Counsel for Defendants Thomas E. Price, in his

Civil Division, Federal Programs Branch official capacity as Secretary of Health and

16

United States Department of Justice

Human Services; Amanda Barlow, in her

P.O. Box 883 Ben Franklin Station

official capacity as Acting Assistant Secretary

17

Washington, DC 20044

for Children and Families; and Kenneth Tota,

202.616.8482

in his official capacity as Acting Director of the

18

Adam.A.Grogg@usdoj.gov

Office of Refugee Resettlement

19  BY MESSENGER SERVICE: I placed a true copy in a sealed envelope or package addressed to the persons

at the addresses listed above and providing them to a professional messenger service for service for delivery

20

before 5:00 p.m. on the above-mentioned date.

21 ; BY ELECTRONIC SERVICE: On the above-mentioned date, I caused the documents to be sent to the
persons at the electronic notification addresses as shown above.
22 ; (FEDERAL) I declare under penalty of perjury that the foregoing is true and correct.
23

24 Executed on March 9, 2017.
25
26
27

/s/ Robert Dunn Robert Dunn Counsel for USCCB

28

Gibson, Dunn & Crutcher LLP

6
USCCB'S INITIAL DISCLOSURES – CASE NO. 3:16-CV-3539-LB

Case 3:16-cv-03539-LB Document 62-2 Filed 03/09/17 Page 1 of 2

1 CHAD A. READLER Acting Assistant Attorney General
2 SHEILA M. LIEBER Deputy Director
3 PETER J. PHIPPS (DC Bar 502904) Senior Trial Counsel
4 ADAM GROGG Trial Attorney (N.Y. Bar)
5 Civil Division, Federal Programs Branch United States Department of Justice
6 P.O. Box 883 Ben Franklin Station Washington, DC 20044
7 Telephone: (202) 616-8482 Fax: (202) 616-8470
8 Email: peter.phipps@usdoj.gov Counsel for Defendants
9

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12 AMERICAN CIVIL LIBERTIES UNION OF
13 NORTHERN CALIFORNIA,

Civil No. 3:16-cv-3539-LB

14

15

vs.

Plaintiff,

[PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO TRANSFER VENUE

16 THOMAS E. PRICE, M.D.,1 Secretary of Health and Human Services, et al.,
17 Defendants.
18

Date:

April 13, 2017

Time:

9:30 a.m.

Courtroom: Courtroom C, 15th Floor

Judge:

Hon. Laurel Beeler

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27
1 Pursuant to Federal Rule of Civil Procedure 25(d), Thomas E. Price, M.D., is automatically substituted as a
28 defendant in his official capacity as Secretary of Health and Human Services for Sylvia Mathews Burwell.
[PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO TRANSFER VENUE CV 16-3539-LB

Case 3:16-cv-03539-LB Document 62-2 Filed 03/09/17 Page 2 of 2

1

[PROPOSED] ORDER

2

Defendants’ Motion to Transfer Venue, having come before the Court, and the Court

3 having considered that Motion,

4

IT IS HEREBY ORDERED THAT this action is transferred pursuant to 28 U.S.C.

5 § 1404(a) to the District Court for the District of Columbia.

6

7

8 Dated: 9

UNITED STATES MAGISTRATE JUDGE

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[PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO TRANSFER VENUE CV 16-3539-LB

 
 Case 3:16-cv-03539-LB Document 66 Filed 03/23/17 Page 1 of 10

1 ELIZABETH O. GILL (SBN 218311)
JENNIFER L. CHOU (SBN 304838)

2 AMERICAN CIVIL LIBERTIES UNION FOUNDATION
OF NORTHERN CALIFORNIA, INC.

3 39 Drumm Street
San Francisco, CA 94111

4 T: (415) 621-2493
F: (415) 255-8437

5 Email: egill@aclunc.org
Email: jchou@aclunc.org

6
BRIGITTE AMIRI (pro hac vice)

7

AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor

8 New York, New York 10004
T: (212) 549-2633

9 F: (212) 549-2652
Email: bamiri@aclu.org

10

Attorneys for Plaintiff

11 [ADDITIONAL COUNSEL ON FOLLOWING PAGE]

12
UNITED STATES DISTRICT COURT
13
NORTHERN DISTRICT OF CALIFORNIA
14
SAN FRANCISCO DIVISION
15

16 AMERICAN CIVIL LIBERTIES UNION OF )

NORTHERN CALIFORNIA,

)

17

) Case No. 3:16-cv-3539-LB

18

Plaintiff,

) ) PLAINTIFF’S OPPOSITION TO

19 v.

) DEFENDANTS’ MOTION TO ) TRANSFER

20 THOMAS E. PRICE, Secretary of Health and )

21 Human Services, et al.

) Date: ) Time:

April 20, 2017 9:30 a.m.

22

Defendants,

) Location: ) Judge:

Courtroom C, 15th Floor Hon. Laurel Beeler

23 and

)

)

24 U.S. CONFERENCE OF CATHOLIC

)

25 BISHOPS,

) )

26

Defendant-Intervenor. ) )

27

28 ______________________________________________________________________________
AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. PRICE ET. AL., PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO TRANSFER, CIVIL NO. 3:16-CV-3539-LB

Case 3:16-cv-03539-LB Document 66 Filed 03/23/17 Page 2 of 10

1 MELISSA GOODMAN (SBN 289464)

2

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA

3

1313 West 8th Street Los Angeles, CA 90017

4

T: (213) 977-9500 F: (213) 977-5299

5 Email: mgoodman@aclusocal.org

6

DANIEL MACH (pro hac vice) AMERICAN CIVIL LIBERTIES UNION FOUNDATION

7

915 15th Street NW Washington, DC 20005

8

T: (202) 675-2330 Email: dmach@aclu.org

9 Attorneys for Plaintiff

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28 ______________________________________________________________________________
AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. PRICE ET. AL., PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO TRANSFER, CIVIL NO. 3:16-CV-3539-LB

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Case 3:16-cv-03539-LB Document 66 Filed 03/23/17 Page 3 of 10

1

INTRODUCTION

2

Defendants seek to transfer this lawsuit to the District of Columbia, even though Plaintiff

3 and nearly all of its members are located here, and even though the unconstitutional activity is

4 occurring partially in this district—i.e., Defendants are funding a provider here that imposes

5 religious restrictions on access to reproductive health care. Defendants cannot overcome the

6 strong presumption supporting Plaintiff’s choice of appropriate forum, particularly as Plaintiff

7 has chosen its home forum. Defendants argue that this case should be transferred because

8 individuals and documents identified in the parties’ initial disclosures are located in the District

9 of Columbia. Defendants fail to explain why the location of those things should be given

10 significant weight, especially since the parties have agreed that this case will likely be resolved

11 without a trial, the individuals identified in the initial disclosures are employed by the parties and

12 can be compelled to testify if necessary, and documentary evidence can be easily exchanged

13 electronically. Finally, transfer would not advance the interests of justice, and would in fact be

14 inefficient: The Court has swiftly moved this case along, and has already familiarized itself with

15 the background facts and relevant issues. Defendants’ transfer motion should therefore be

16 denied.

17

ARGUMENT

18

I. Defendants Fail to Establish That This Case Should Be Transferred to the

19

District of Columbia.

20

“For the convenience of parties and witnesses, in the interest of justice, a district court

21 may transfer any civil action to any other district court or division where it might have been

22 brought . . . .” 28 U.S.C. § 1404(a). This Court has “broad discretion” to adjudicate motions to

23 transfer venue. Allstar Mktg. Grp., LLC v. Your Store Online, LLC, 666 F. Supp. 2d 1109, 1130

24 (C.D. Cal. 2009). “District courts use a two step analysis to determine whether a transfer is

25 proper.” Inherent.com v. Martindale-Hubbell, 420 F. Supp. 2d 1093, 1098 (N.D. Cal. 2006).

26 First, the court must “determine whether the case could have been brought in the forum to which

27 the transfer is sought.” Id. (citing Hatch v. Reliance Ins. Co., 758 F.2d 409, 414 (9th Cir. 1985)).

28 ______________________________________________________________________________
AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. PRICE ET. AL., PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO TRANSFER, CIVIL NO. 3:16-CV-3539-LB

1

Case 3:16-cv-03539-LB Document 66 Filed 03/23/17 Page 4 of 10

1 “If venue would be appropriate in the transferee court, then the court must make an

2 ‘individualized, case-by-case consideration of convenience and fairness.’” Id. (quoting Jones v.

3 GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000)). The moving party bears the burden

4 of showing that transfer is appropriate. Commodity Futures Trading Comm’n v. Savage, 611

5 F.2d 270, 279 (9th Cir. 1979); see also, e.g., Carolina Cas. Co. v. Data Broad. Corp., 158 F.

6 Supp. 2d 1044, 1048 (N.D. Cal. 2001).

7

A. Plaintiff’s Choice of Its Home Forum Is Entitled to Great Weight.

8

Plaintiff does not dispute that this case could have been brought either here or in the

9 District of Columbia. See 28 U.S.C. § 1391(e). Plaintiff chose to bring the lawsuit here. A

10 plaintiff’s choice of forum is entitled to great weight and “should rarely be disturbed,” Getz v.

11 Boeing Co., 547 F. Supp. 2d 1080, 1082 (N.D. Cal. 2008) (citing Sec. Investor Prot. Corp. v.

12 Vigman, 764 F.2d 1309, 1317 (9th Cir. 1985)). Accordingly, a “defendant must make a strong

13 showing of inconvenience to warrant upsetting the plaintiff’s choice of forum.” Decker Coal Co.

14 v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986).

15

This principle applies with particular force where, as here, “the plaintiff has chosen [its]

16 home forum.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 (1985); see also, e.g., Ctr. for

17 Biological Diversity v. Export-Import Bank of the U.S., No. 12-6325, 2013 WL 5273088 (N.D.

18 Cal. Sept. 17, 2013) (denying the government’s motion to transfer venue to the District of

19 Columbia, even though the relevant decisionmaking occurred there, based on the plaintiffs’

20 choice of their home forum).

21

Defendants argue that Plaintiff’s choice of its home forum should receive little weight

22 because “it is hardly in the interests of justice to permit an organization to select any forum in

23 which at least one of its taxpayer members resides.” Mot. to Transfer at 2–3, 6, ECF No. 62. But

24 the ACLU of Northern California—a separate organization from the national American Civil

25 Liberties Union, with its own membership, board of directors, and staff—is based here, and

26 nearly all of its 150,000 members live here. See Am. Compl. ¶ 17, ECF No. 57; see also, e.g.,

27 Ctr. for Biological Diversity v. Lubchenco, No. C-09-4087 EDL, 2009 WL 4545169, at *4 (N.D.

28 ______________________________________________________________________________
AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. PRICE ET. AL., PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO TRANSFER, CIVIL NO. 3:16-CV-3539-LB

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Case 3:16-cv-03539-LB Document 66 Filed 03/23/17 Page 5 of 10

1 Cal. Nov. 30, 2009) (“Plaintiffs’ choice of forum weighs heavily because California has an

2 interest in this litigation involving Greenpeace, one of its residents.”). Moreover, Plaintiff has

3 alleged that the unconstitutional activity is occurring partially in this district—namely, taxpayer

4 funds are granted to at least one organization in this district, Catholic Charities of Santa Clara

5 County, that imposes religious restrictions on access to reproductive health care for

6 unaccompanied immigrant minors in its charge. Am. Compl. ¶¶ 4, 27; see also Defs.’ Ans. ¶ 27,

7 ECF No. 60 (admitting that Catholic Charities of Santa Clara Country is among the organizations

8 receiving unaccompanied immigrant minor program funds).

9

This case thus bears little resemblance to Chesapeake Climate Action Network v. Export-

10 Import Bank of the United States, No. C 13-03532-WHA, 2013 WL 6057824 (N.D. Cal. Nov.

11 15, 2013), on which Defendants rely. There, “only two of the six plaintiffs [were] headquartered

12 in this district,” and the plaintiffs all “rel[ied] on their members on the East Coast . . . for

13 standing.” Id. at *2; see also Kinney v. Takeuchi, Case No. 3:16-cv-02018-LB, 2016 WL

14 4268673 (N.D. Cal. Aug. 15, 2016) (observing that the plaintiff resided in the Central District of

15 California and that all the operative facts occurred there). It is hard to accuse Plaintiff of forum

16 shopping based on its decision to file suit in its home district, where nearly all its members reside

17 and pay their taxes, and where some of the alleged constitutional injuries take place. Cf. Polaroid

18 Corp. v. Casselman, 213 F. Supp. 379 (S.D.N.Y. 1962) (observing that both parties’ were based

19 in Massachusetts, and that plaintiff merely “maintains a small sales office” in New York).

20

Defendants also argue that Plaintiff’s choice of its home forum should be disregarded

21 because, “any federal taxpayer or any organization with federal taxpayer members could sue”

22 Defendants for violating the Establishment Clause. Mot. to Transfer at 6 (citing cases holding

23 that a named plaintiff’s choice of forum in a derivative or class action lawsuit is entitled to less

24 weight). To be sure, taxpayers in other jurisdictions may also wish to challenge Defendants’

25 actions. They would also be entitled to bring lawsuits in their home districts. Unlike the named

26 plaintiffs in a derivative suit or class action, Plaintiff here does not have a fiduciary relationship

27 with other potential plaintiffs, and their residences have no bearing on the weight entitled to

28 ______________________________________________________________________________
AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. PRICE ET. AL., PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO TRANSFER, CIVIL NO. 3:16-CV-3539-LB

3

Case 3:16-cv-03539-LB Document 66 Filed 03/23/17 Page 6 of 10

1 Plaintiff’s choice of its home district. Cf. Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S.

2 518, 526 (1947) (stating that a derivative lawsuit “brings to the court more than an ordinary task

3 of adjudication; it brings a task of administration; and what forum is appropriate for such a task

4 may require consideration of its relation to the whole group of members and stockholders whom

5 plaintiff volunteers to represent as well as to the nominal plaintiff himself”).

6

The fact that Plaintiff challenges policy decisions made in the District of Columbia does

7 not alter the calculus. Courts throughout the country routinely adjudicate similar challenges in

8 plaintiffs’ home fora. See, e.g., Washington v. Trump, No. C17-0141JLR, 2017 WL 462040

9 (W.D. Wash. Feb. 3, 2017), stay pending appeal denied, 847 F.3d 1151 (9th Cir. 2017); Texas v.

10 United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015), aff’d, 809 F.3d 134 (5th Cir. 2015), aff’d by

11 an equally divided Court, 136 S. Ct. 2271 (2016); ACLU of Mass. v. Sebelius, 821 F. Supp. 2d 12 474 (D. Mass. 2012), vac’d as moot, 705 F.3d 44 (1st Cir. 2013). Taken to their logical

13 conclusion, Defendants’ arguments would funnel a great number of these cases to the District of

14 Columbia.

15

B. The Location of the Parties and Witnesses Does Not Support Transfer

Under These Circumstances.
16

Defendants argue that the case should be transferred because most of the witnesses

17

identified in the parties’ initial disclosures reside in the District of Columbia, and most of the

18

documents identified in the initial disclosures originated there. Mot. to Transfer at 4–5. The

19

Ninth Circuit has held that “the location of the evidence and witnesses . . . . is no longer weighed

20

heavily given the modern advances in communication and transportation.” Panavision Int’l L.P.

21

v. Toeppen, 141 F.3d 1316, 1323 (9th Cir. 1998). But Defendants have not even established that

22

litigation in this forum would impose a significant hardship.

23

First, Defendants have not identified any significant hardship to potential witnesses. Nor

24

could they, given that Plaintiff’s counsel is willing to conduct depositions at witnesses’

25

convenience in the District of Columbia, and in light of the fact that this case is likely to be

26

resolved on summary judgment. See Joint Case Management Statement at 7, ECF No. 35 (“If

27

28 ______________________________________________________________________________
AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. PRICE ET. AL., PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO TRANSFER, CIVIL NO. 3:16-CV-3539-LB

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Case 3:16-cv-03539-LB Document 66 Filed 03/23/17 Page 7 of 10

1 necessary this case would be a bench trial, but the parties presently do not think that there is a

2 high likelihood that there will be material facts in genuine dispute, and therefore believe that this

3 case will most likely be resolved through summary judgment.”). Under these circumstances, the

4 witnesses’ residence has no bearing on the motion to transfer. See, e.g., Lubchenko, 2009 WL

5 4545169, at *3 (“There are no witnesses to consider since this case will be decided on the record

6 on summary judgment, as the parties acknowledged at the hearing and in their briefs.”); Sierra

7 Club v. Van Antwerp, 523 F. Supp. 2d 5, 12 (D.D.C. 2007) (holding that the convenience of the

8 witnesses was “irrelevant” where the case would likely be resolved on summary judgment, based

9 on the administrative record). Even if it becomes necessary for the parties to call witnesses to

10 testify at trial, “[t]he Court . . . discounts any inconvenience to the parties’ employees, whom the

11 parties can compel to testify.” Getz, 547 F. Supp. 2d at 1084 (citing STX, Inc. v. Trik Stik, Inc.,

12 7084 F. Supp. 1551, 1556 (N.D. Cal. 1988)). Here, all the individuals identified in the parties’

13 initial disclosures are employed by either Defendants or USCCB, and can accordingly be

14 compelled to testify at trial by the parties.1

15

Defendants similarly fail to establish that the location of the documentary evidence

16 supports transfer. “If the motion [to transfer] is based on the location of records and documents,

17 the movant must show particularly the location, difficulty of transportation, and the importance

18 of such records.” Bohara v. Backus Hosp. Med. Benefit Plan, 390 F. Supp. 2d 957, 963 (C.D.

19 Cal. 2005). Here, Defendants state conclusorily that “[a]ll documents identified on plaintiff’s and

20 defendant’s initial disclosures are from HHS’s possession in Washington, D.C.,” and that

21 “USCCB identifies documents that originate either from HHS or USCCB.” Mot. to Transfer at 5.

22 But Defendants do not explain why this imposes any sort of hardship. To the contrary, “[g]iven

23

24

1 Indeed, Defendants have failed to meet even the basic requirement to “identify, typically by affidavit, the key witnesses to be called, state their residence, and provide at least a general

25

summary of what their testimony will cover.” 15 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Fed. Prac. & Proc. Juris. § 3851 (4th ed.), see also, e.g., Allstar Mktg. Grp.,

26 666 F. Supp. 2d at 1132–33. Instead, Defendants’ motion refers offhandedly to the individuals

identified in the parties’ initial disclosures, who may or may not be called as witnesses, and
27 provides no description of their proposed testimony.

28 ______________________________________________________________________________
AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. PRICE ET. AL., PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO TRANSFER, CIVIL NO. 3:16-CV-3539-LB

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Case 3:16-cv-03539-LB Document 66 Filed 03/23/17 Page 8 of 10

1 technological advances in document storage and retrieval, transporting documents between

2 districts does not generally create a burden.” Brackett v. Hilton Hotels Corp., 619 F. Supp. 2d

3 810, 820 (N.D. Cal. 2008); see also, e.g., Dickerson v. Novartis Corp., 315 F.R.D. 18, 30

4 (S.D.N.Y. 2016) (holding that although “the majority of relevant documents are likely to be

5 located [at defendant’s] headquarters” in proposed transferee district, “this factor is entitled to

6 relatively little weight in the modern era of faxing, scanning, and emailing documents” (citation

7 and internal quotation marks omitted)). Moreover, Plaintiff has already received a volume of

8 relevant documents obtained through Freedom of Information Act requests, and the parties are

9 engaged in discussions to minimize discovery through stipulation. Joint Case Management

10 Statement at 4. Defendants have therefore failed to establish that litigation in this forum would

11 result in any significant inconvenience.

12

C. Transfer Will Not Facilitate Timely Adjudication of this Dispute.

13

Finally, Defendants argue that transfer is in the interest of justice because “the District of

14 Columbia has per-judge dockets that are a fraction of those in this judicial District.” Mot. to

15 Transfer at 7. But “the Ninth Circuit has explained that ‘[t]he real issue is not whether a

16 dismissal will reduce a court’s congestion but whether a trial may be speedier in another court

17 because of its less crowded docket.” Peregrine Semiconductor Corp. v. RF Micro Devices, Inc.,

18 No. 12cv911-IEG (WMC), 2012 WL 2068728, at *9 (S.D. Cal. June 8, 2012) (alteration in

19 original) (quoting Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1337 (9th Cir. 1984)).2

20 Accordingly, “if this Court is to consider congestion the focus should be the median time from

21 the filing to trial” or disposition. Wellens v. Daiichi Sankyo Co., No. C 13-00581 CW, 2013 WL

22 3242294, at *5 (N.D. Cal. June 25, 2013). As Defendants themselves note, “the relevant figures

23

24

2 See also 15 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Fed. Prac. & Proc. Juris. § 3854 (4th ed.) (“There are decisions in which the courts sound as though they are

25

ordering transfer simply to reduce congestion on the local docket. By itself, this is not an appropriate factor on a motion to transfer under Section 1404(a). But what is relevant, and

26 undoubtedly what the courts have in mind in writing opinions that give significant weight to this

element, is that getting to trial may be speedier in another district because of its less crowded
27 docket.” (footnotes omitted)).

28 ______________________________________________________________________________
AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. PRICE ET. AL., PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO TRANSFER, CIVIL NO. 3:16-CV-3539-LB

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Case 3:16-cv-03539-LB Document 66 Filed 03/23/17 Page 9 of 10

1 for the District of Columbia and the Northern District of California are not meaningfully

2 different” on these metrics. Mot. to Transfer at 7 n.3; see also United States District Courts –

3 National Judicial Caseload Profile (Dec. 31, 2016) at 2, 66 (for the year ending in Dec. 31, 2016,

4 the median time from filing to trial in civil cases is 44.3 months in the District of Columbia

5 versus 31.2 months in the Northern District of California; median time from filing to disposition

6 in civil cases is 7.8 months in the District of Columbia versus 7.3 months in the Northern District

7 of California).3

8

Averages aside, there is no reason to believe that transfer will facilitate either a speedier

9 resolution of this case or the efficient use of judicial resources. The Court has already approved a

10 typically paced discovery schedule. The Court accepted the parties’ proposed December 7, 2017,

11 hearing date for dispositive motions. See Joint Case Management Statement at 7; Case12 Management and Pretrial Order at 2, ECF No. 41. And the Court has calendared a bench trial—

13 which, as discussed above, will likely prove unnecessary—to commence on March 26, 2018, just

14 one week after the parties’ proposed trial date. See Case-Management and Pretrial Order at 2.

15 Moreover, it “would not serve the interests of judicial economy to transfer this case,” given that

16 the Court “is already familiar with the background of the case” based on its resolutions of

17 Defendants’ Motion to Dismiss and USCCB’s Motion to Intervene. Kremen v. Cohen, No. 5:11-

18 CV-05411-LHK, 2012 WL 44999, at *11 (N.D. Cal. Jan. 7, 2012); see also, e.g., Madani v. Shell 19 Oil Co., No. C07-04296 MJJ, 2008 WL 268986, at *2 (N.D. Cal. Jan. 30, 2008) (“Judicial

20 resources are conserved when an action is adjudicated by a court that has already committed

21 judicial resources to the contested issues and is familiar with the facts of the case.” (citation and

22 internal quotation marks omitted)).

23

24

25

26
3 Available at http://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile1231.
27 2016.pdf.
28 ______________________________________________________________________________
AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. PRICE ET. AL., PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO TRANSFER, CIVIL NO. 3:16-CV-3539-LB

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Case 3:16-cv-03539-LB Document 66 Filed 03/23/17 Page 10 of 10

1

CONCLUSION

2

For the foregoing reasons, Defendants’ transfer motion should be denied.

3

4 Dated: March 23, 2017

Respectfully submitted,

5

By: /s/ Brigitte Amiri ________

6

Brigitte Amiri*

7

Attorney for Plaintiff

8

* Appearing pro hac vice

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AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA V. PRICE ET. AL., PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO TRANSFER, CIVIL NO. 3:16-CV-3539-LB

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 Case 3:16-cv-03539-LB Document 76 Filed 04/28/17 Page 1 of 12

United States District Court Northern District of California

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

San Francisco Division

11

12 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA,
13 Plaintiff,
14 v.
15
SYLVIA MATHEWS BURWELL, et al., 16
Defendants. 17

Case No. 16-cv-03539-LB
ORDER DENYING THE DEFENDANTS’ MOTION TO TRANSFER Re: ECF No. 62

18

INTRODUCTION & BACKGROUND

19

The ACLU of Northern California challenges federal grants to religious organizations for the

20 care of unaccompanied immigrant minors and trafficking victims.1 The ACLU claims that the

21 Office of Refugee Resettlement (“ORR”) violates the Establishment Clause by its grants to

22 religious groups that refuse to provide unaccompanied minors and trafficking victims with 23 “information about, access to, or referrals for contraception and abortion” services.2 To challenge

24 these grants, the ACLU sued, in their official capacities, the Secretary of Health and Human

25

26 1 See generally First Amended Compl. – ECF No. 57. Record citations refer to material in the

27

Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents.

28 2 Id. ¶¶ 4, 7, 56–69.

ORDER — No. 16-cv-03539-LB

Case 3:16-cv-03539-LB Document 76 Filed 04/28/17 Page 2 of 12

United States District Court Northern District of California

1 Services, the Acting Assistant Secretary of the Administration for Children and Families, and the

2 Director of ORR.3 The United States Conference of Catholic Bishops (“USCCB”) — an ORR

3 grantee that “issues subgrants to Catholic Charities” — intervened in the case.4

4

The government defendants now move to transfer the case to the District of Columbia.5 The

5 ACLU opposes the motion.6 The court denies the motion because the government has not

6 overcome the deference afforded to the ACLU’s choice of forum.

7

8

GOVERNING LAW

9

28 U.S.C. § 1404(a) states: “For the convenience of parties and witnesses, in the interest of

10 justice, a district court may transfer any civil action to any other district or division where it might

11 have been brought.” Although Congress drafted § 1404(a) in accordance with the doctrine of

12 forum non conveniens, it was intended to be a revision to rather than a codification of the common

13 law. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253 (1981); Norwood v. Kirkpatrick, 349 U.S. 29,

14 32 (1955). Thus, a § 1404(a) transfer is available “upon a lesser showing of inconvenience” than

15 that required for a forum non conveniens dismissal. Norwood, 349 U.S. at 32.

16

The burden is upon the moving party to show that transfer is appropriate. Commodity Futures

17 Trading Comm’n v. Savage, 611 F.2d 270, 279 (9th Cir. 1979); see also Los Angeles Mem’l

18 Coliseum Comm’n v. Nat’l Football League, 89 F.R.D. 497, 499 (C.D. Cal. 1981), aff’d, 726 F.2d

19 1381, 1399 (9th Cir. 1984). Nonetheless, the district court has broad discretion “to adjudicate

20 motions for transfer according to an ‘individualized, case-by-case consideration of convenience

21 and fairness.’” Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000) (quoting

22 Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988)); see Westinghouse Elec. Corp. v. Weigel,

23 426 F.2d 1356, 1358 (9th Cir. 1970).

24

25
26 3 Id. ¶¶ 18–20. 4 See id. ¶¶ 4, 26–27, 37, 59–69; Order re Intervention – ECF No. 58.
27 5 Motion to Transfer – ECF No. 62.
28 6 Opposition – ECF No. 66.

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1

An action may be transferred to another court if: (1) that court is one where the action might

2 have been brought; (2) the transfer serves the convenience of the parties; and (3) the transfer will

3 promote the interests of justice. E & J Gallo Winery v. F. & P. S.p.A., 899 F. Supp. 465, 466 (E.D.

4 Cal. 1994) (citing 28 U.S.C. § 1404(a)). The Ninth Circuit has identified numerous additional

5 factors a court may consider in determining whether a change of venue should be granted under

6 § 1404(a):

7

(1) the location where the relevant agreements were negotiated and executed, (2)

the state that is most familiar with the governing law, (3) the plaintiff’s choice of

8

forum, (4) the respective parties’ contacts with the forum, (5) the contacts relating

to the plaintiff’s cause of action in the chosen forum, (6) the differences in the

9

costs of litigation in the two forums, (7) the availability of compulsory process to

compel attendance of unwilling non-party witnesses, and (8) the ease of access to

10

sources of proof.

11 Jones, 211 F.3d at 498–99. Courts may also consider “the administrative difficulties flowing from

12 court congestion . . . [and] the ‘local interest in having localized controversies decided at home.’”

13 Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986) (quoting Piper

14 Aircraft, 454 U.S. at 241 n. 6).

15

Generally, the court affords the plaintiff’s choice of forum great weight. Lou v. Belzberg, 834

16 F.2d 730, 739 (9th Cir. 1987). But when judging the weight to be given to plaintiff’s choice of

17 forum, consideration must be given to the respective parties’ contact with the chosen forum. Id. “If

18 the operative facts have not occurred within the forum and the forum has no interest in the parties

19 or subject matter,” the plaintiff’s choice “is entitled only minimal consideration.” Id.

20

21

ANALYSIS

22

The parties do not dispute that the case could have been brought in the District of Columbia.7

23 And, indeed, because the defendants are government officials sued in their official capacities, and

24 because a substantial part of the events (i.e. the decision-making process) took place in

25 Washington, D.C., the ACLU could have sued in the District of Columbia. See 28 U.S.C.

26 §§ 1391(e), 1404(a).

27

28 7 See Motion at 5; Opposition at 4.

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1

The court next considers the remaining § 1404(a) factors. The court first considers the

2 ACLU’s choice of forum because the government’s burden shifts based on the weight given to

3 that choice. See Chesapeake Climate Action Network v. Export-Import Bank, No. C 13-03532

4 WHA, 2013 WL 6057824, at *2 (N.D. Cal. Nov. 15, 2013) (“As deference to a plaintiff’s choice

5 of forum decreases, a defendant’s burden to upset the plaintiff’s choice of forum also decreases.”).

6 The court then considers the convenience of the parties and witnesses, the location of the

7 evidence, and the interests of justice.

8

9 1. The ACLU of Northern California’s Choice of Forum

10

Generally, “unless the balance of the § 1404(a) factors ‘is strongly in favor of the defendants,

11 the plaintiff’s choice of forum should rarely be disturbed.’” Getz v. Boeing Co., 547 F. Supp. 2d

12 1080 (N.D. Cal. 2008) (quoting Secs. Investor Protection Corp. v. Vigman, 764 F.2d 1309, 1317

13 (9th Cir. 1985)); see also Decker, 805 F.2d at 843 (“[D]efendant must make a strong showing . . .

14 to warrant upsetting the plaintiff’s choice of forum.”). “This is especially true when a plaintiff

15 chooses to sue in its ‘home turf.’” Natural Wellness Ctrs. of Am. v. J.R. Andorin Inc., No. 11-

16 04642 EDL, 2012 WL 216578, at *10 (N.D. Cal. Jan. 24, 2012).

17

But sometimes a plaintiff’s choice of forum is entitled to only minimal weight, “even if the

18 plaintiff is a resident of the forum.” Chesapeake, 2013 WL 6057824 at *2 (emphasis in original).

19 “[T]he deference accorded to a plaintiff’s chosen forum should be balanced against the extent of

20 both the defendant’s and plaintiff’s contacts with the chosen forum, including those relating to

21 plaintiff’s claims.” Ctr. for Biological Diversity v. Export-Import Bank, No. C 12-6325 SBA, 2013

22 WL 5273088, at *5 (N.D. Cal. Sept. 17, 2013) (citing Pac. Car & Foundry v. Pence, 403 F.2d 949

23 (9th Cir. 1968)). “If the operative facts have not occurred within the forum of original selection

24 and that forum has no particular interest in the parties or the subject matter, the plaintiff’s choice is

25 entitled only to minimal deference.” Pac. Car & Foundry, 403 F.2d at 954.

26

27

28

ORDER — No. 16-cv-03539-LB

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1

The parties point to several instructive cases involving environmental challenges to

2 government action.8 See Chesapeake, 2013 WL 6057824; Ctr. for Biological Diversity, 2013 WL

3 5273088.

4

In Center for Biological Diversity v. Export-Import Bank, the plaintiffs’ decision to litigate in

5 the Northern District of California weighed against transfer. 2013 WL 5273088 at *5. There, three

6 environmental organizations challenged an Export-Import Bank loan to finance a natural gas

7 project in Australia’s Great Barrier Reef. Id. at *1–*2. The defendants — the United States

8 Export-Import Bank and its Chairman and President — moved to transfer the case to the District

9 of Columbia, where the Bank (a federal agency) is headquartered, and where the environmental-

10 review process took place. Id. at *1, *4. The defendants argued that the plaintiffs’ “choice of

11 forum [was] entitled to minimal deference because the operative facts giving rise to [the] action

12 occurred in Washington, D.C., and because this District ha[d] no particular interest in or

13 connection to [the] litigation.” Id. *5.

14

But the defendants did not satisfy their burden. Id. Instead, the Northern District of California

15 had a particular interest in the litigation because (1) the plaintiff organizations were incorporated

16 in California, (2) “each ha[d] an office in th[e] district,” and (3) each had “members that reside[d]

17 in the district who [were] concerned about the potential impacts from the Project, including

18 impacts on endangered and threatened species and the climate.” Id. Some members had “specific

19 plans to travel to Australia” and were “concerned that the Project [would] harm their recreational

20 and aesthetic interests.” Id. The plaintiffs’ choice of forum was thus entitled to deference.

21

In contrast, in Chesapeake, this factor weighed in favor of transferring venue. 2013 WL

22 6057824 at *2. As in Center for Biological Diversity, the Chesapeake plaintiffs were non-profit

23 environmental groups challenging the Export-Import Bank’s decision to finance a development

24 project. Id. at *1. The plaintiffs asserted that the Bank’s decision, which would facilitate the export

25 of Appalachian coal through facilities in Maryland and Virginia and “to clients in China, Japan,

26

27

28 8 See Motion to Transfer at 7; Opposition at 4–5.

ORDER — No. 16-cv-03539-LB

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1 South Korea, and elsewhere,” would cause “significant adverse effects on human health and the

2 environment.” Id.

3

In giving little deference to the plaintiffs’ choice of forum, the court noted that “none of the

4 operative facts arose in this district” — the Bank’s decisionmaking regarding the loan guarantee

5 took place in Washington, D.C. — and distinguished Center for Biological Diversity on two

6 grounds. Id. at *2. First, the Center plaintiffs “rel[ied] on their members who lived in this district

7 and claimed harm to their recreational and aesthetic interests for organizational standing.” Id.

8 (internal quotations omitted). But in Chesapeake, the plaintiffs “rel[ied] on their members on the

9 East Coast who face harm to their health, property, and aesthetic and recreational interests.” Id.

10 (internal quotations omitted). Second, “in Center for Biological Diversity, all of the plaintiff

11 organizations were headquartered in this district,” but in Chesapeake, “only two of the six

12 plaintiffs” were headquartered here. Id. The plaintiffs’ choice thus received little deference. Id.

13

The case here is more similar to Center for Biological Diversity than it is to Chesapeake. First,

14 like Center for Biological Diversity, the ACLU of Northern California (the sole plaintiff) is based

15 in this district: it “is a state affiliate of the national American Civil Liberties Union and is 16 domiciled in the State of California, with its principal place of business in San Francisco.”9 17 Second, the ACLU brings the case on behalf of its members, “nearly all of” whom live here,10 and

18 thus relies on (at least predominantly) local-member association, not (as in Chesapeake) members

19 suffering injury across the country. And third, the ACLU alleges that the impact of the

20 Establishment Clause violation — federal funds financing religious organizations that refuse to

21 provide contraceptive and abortion-related services — is occurring in this district. It asserts that

22 USCCB “issues subgrants to Catholic Charities and other organizations around the country” that

23 provide services to unaccompanied minors, including to Catholic Charities of Santa Clara County 24 (located in San Jose).11 Thus, like Center for Biological Diversity, (1) the ACLU (the sole

25

26 9 FAC ¶ 17.
27 10 Opposition at 4.
28 11 FAC ¶¶ 4, 27.

ORDER — No. 16-cv-03539-LB

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1 plaintiff) is domiciled in California, (2) it has its principal place of business in San Francisco, and

2 (3) its members are located here and the impact is local. The ACLU’s choice of forum is thus

3 entitled to deference.

4

This conclusion does not change because the ACLU is an organization suing on behalf of its

5 taxpaying members. The government argues that the ACLU’s member-based taxpayer standing

6 means that anyone — in any district — could bring this case and, “where there are hundreds of

7 potential plaintiffs . . . all of whom could with equal show of right go into their many home courts,

8 the claim of any one plaintiff that a forum is appropriate merely because it is his home forum is 9 considerably weakened.”12 Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947).

10

But the cases the government relies on are contextually distinguishable. For example, Koster

11 was a shareholder’s derivative action, and the Court focused on the “complexities and unique

12 features of” those suits to reach its conclusion. See id. at 522–26. It was because of those unique

13 features — including the fiduciary relationship between named plaintiffs and corporations’

14 shareholders; named plaintiffs’ (sometimes) questionable ability or motive to litigate the case; and

15 the court’s administrative duties to protect absentee shareholders and to facilitate the action — that

16 the Court gave little weight to the named plaintiff’s decision to litigate at home. Id. And similar

17 concerns apply in the other contexts raised by the government. See Seely v. Cumberland, No. 10-

18 CV-2019-LHK, 2010 WL 5300923, at *3 (N.D. Cal. Dec. 20, 2010) (applying Koster to a qui tam

19 plaintiff’s patent mis-marking claim and transferring venue); San Francisco Tech., Inc. v. Glad

20 Prods. Co., No. 10-CV-00966 JF (PVT), 2010 WL 2943537, at *7 (N.D. Cal. July 26, 2010)

21 (noting that, in addition to “substantial persuasive authority supporting Defendants’ position that a

22 plaintiff’s choice of forum is entitled to less weight in a qui tam action,” the Supreme Court’s

23 reasoning in Koster “is arguably applicable” in the qui tam context); see also Johns v. Panera

24 Bread Co., No. 08-1071 SC, 2008 WL 2811827, at *2 (N.D. Cal. July 21, 2008) (“Plaintiff’s

25 decision to seek to represent a nationwide class substantially undercuts this defence.”); Hoefer v.

26 U.S. Dep’t of Commerce, No. C 00-091 VRW, 2000 WL 890862, at *2 (N.D. Cal. June 28, 2000)

27

28 12 Motion at 7; Reply – ECF No. 67 at 2–3.

ORDER — No. 16-cv-03539-LB

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1 (affording little deference to “a plaintiff’s choice of forum in a[n] action brought on behalf of a

2 nationwide class” where “[t]he members of the purported class are numerous and are located

3 throughout the nation”).

4

Each of these contexts — derivative suits, class actions, and qui tam cases — involve

5 individual plaintiffs suing on behalf of (or in the place of) other potential plaintiffs located in

6 forums across the country. But here, this division of the ACLU is a Northern California-based 7 organization suing on behalf of its members, “nearly all of” whom are located here, too.13 The

8 absentee plaintiffs — the ACLU’s members — thus have the same home forum. That the ACLU

9 relies on its members’ federal taxpayer status does not change this outcome: even though

10 taxpayers in other forums could conceivably bring the case too, the ACLU of Northern California

11 brings it only on behalf of its members located predominantly in this district. This may be

12 different from a situation where, for example, the national ACLU sued on behalf of its members

13 located throughout the nation. In that context, the ACLU would indeed be suing on behalf of many

14 potential plaintiffs throughout the country, “all of whom could with equal show of right go into

15 their many home courts.” Koster, 330 U.S. at 524. But that is not the situation here, and the ACLU

16 of Northern California’s choice of forum is entitled to deference.

17

18 2. Other Factors

19

Because the ACLU’s choice of forum is entitled to deference, the government must make a

20 “strong showing” that the conveniences and the interests of justice favor transfer. See Ctr. for

21 Biological Diversity v. Lubchenco, No. C-09-4087 EDL, 2009 WL 4545169, at *4 (N.D. Cal. Nov.

22 30, 2009); cf. Chesapeake, 2013 WL 6057824 at *2 (“As deference to a plaintiff’s choice of forum

23 decreases, a defendant’s burden to upset the plaintiff’s choice of forum also decreases.”).

24

25

26

27

28 13 See Opposition at 4.

ORDER — No. 16-cv-03539-LB

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1

2.1 Convenience of the Parties

2

The parties do not directly address their own conveniences. The ACLU is based in this district,

3 but the defendants (and USCCB) are based in Washington, D.C.14 Without more information

4 regarding their respective burdens of litigating here versus the District of Columbia, the court

5 cannot tell if this factor weighs in favor of transfer. But, presumably, the parties “will face

6 increased litigation expenses and inconvenience if the case proceeds in their nonpreferred forum,”

7 and because “transfer is not appropriate if it simply shifts the inconvenience from one party to

8 another,” this factor is neutral in the transfer analysis. See Ctr. for Biological Diversity v. Export-

9 Import Bank, No. C 12-6325 SBA, 2013 WL 5273088, at *6 (N.D. Cal. Sept. 17, 2013).

10

11

2.2 Convenience of the Witnesses and Location of the Evidence

12

“The convenience of witnesses is often the most important factor in deciding whether to

13 transfer an action.” Getz, 547 F. Supp. 2d at 1083 (citing Bunker v. Union Pac. R.R. Co., No. C

14 05-04059 JSW, 2006 WL 193856, at *2 (N.D. Cal. Jan. 23, 2006)). But courts “discount[] any

15 inconvenience to the parties’ employees, whom the parties can compel to testify.” Id. at 1084

16 (citing STX, Inc. v. Trik Stik, Inc., 708 F. Supp. 1551, 1556 (N.D. Cal. 1998)). And, the location of

17 the witnesses and other evidence is no longer weighed so heavily “given the modern advances in

18 communication and transportation.” Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1323 (9th

19 Cir. 1998); see also Chesapeake, 2013 WL 6057824 at *3 (“[T]echnological advances in

20 document storage and retrieval mitigate the burdens of transporting documents, if any, from the

21 District of Columbia to this district.”).

22

Here, the government argues that the parties’ witnesses are all located in Washington, D.C.15

23 For example, in its supplemental initial disclosures, the ACLU identified nine potential witnesses, 24 each based in Washington.16 The government similarly identified ten Washington-based witnesses

25

26 14 See FAC ¶¶ 17–20.
27 15 Motion at 5–6.
28 16 See ACLU’s Supp. Initial Disclosures – ECF No. 62-1at 12–13.

ORDER — No. 16-cv-03539-LB

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1 (five of whom were also identified by the ACLU).17 USCCB’s witnesses are also located in 2 Washington.18 And many of the documents on which the parties intend to rely are located in 3 Washington, either with HHS or USCCB.19

4

The witnesses and the documentary evidence thus appear located primarily in Washington,

5 D.C. But each witness is an employee of either HHS or USCCB that can be compelled to testify.

6 The ACLU’s “counsel is willing to conduct deposition at witnesses’ convenience in the District of 7 Colombia,”20 and the case is likely to be resolved without trial at summary judgment.21 In light of

8 these circumstances and the ease of storing and retrieving electronic documents (the government 9 even hyperlinks to several of the documents in its initial disclosures22), the location of the

10 witnesses and documents weighs only slightly in favor of transfer.

11

12

2.3 The Interests of Justice

13

The court next considers the interests of justice. “A district court hearing a motion to transfer

14 must also consider public-interest factors such as relative degrees of court congestion, local

15 interest in deciding local controversies, potential conflicts of laws, and other interests of justice.”

16 Chesapeake, 2013 WL 6057824 at *3.

17

First, “[a]s to court congestion, courts in this district consider the ‘median time from filing to

18 disposition or trial.’” Id. (quoting Ctr. for Food Safety v. Vilsack, No. C 11-00831 JSW, 2011 WL

19 996343, at *8 (N.D. Cal. Mar. 17, 2011)); see also Gates Learjet Corp. v. Jensen, 743 F.2d 1325,

20 1337 (9th Cir. 1984) (“The real issue is not whether a dismissal [for forum non conveniens] will

21 reduce a court’s congestion, but whether a trial may be speedier in another court because of its less

22

23 17 Defendants’ Supp. Initial Disclosures – ECF No. 62-1 at 3–4. 18 USCCB’s Initial Disclosures – ECF No. 62-1 at 18–19.
24 19 See Motion 6; Defendants’ Supp. Initial Disclosures at 4–7; USCCB’s Initial Disclosures at 19–20.

25 20 Opposition at 6.

26

21 See Joint Case Management Statement – ECF No. 35 at 7 (“If necessary this case would be a bench trial, but the parties presently do not think that there is a high likelihood that there will be material

27

facts in genuine dispute, and therefore believe that this case will most likely be resolved through summary judgment.”).

28 22 See Defendants’ Initial Disclosures at 5–7.

ORDER — No. 16-cv-03539-LB

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1 crowded docket.”). Here, as of September 30, 2016, judges in this district had on average 572 2 pending cases whereas judges in the District of Colombia had 250 pending cases.23 Regarding the

3 median time from filing to disposition in civil cases, the average time in this district was 7.4 4 months, and the average time in the District of Columbia was 7.8 months.24 The average time from 5 filing to trial in this district was 30.4 months, and in the District of Columbia was 41.8 months.25

6 Despite the greater caseload, then, cases are, on average, resolved more quickly in this district. “It

7 is hard to account for this anomaly,” and so “this factor will not be given weight.” Chesapeake,

8 2013 WL 6057824.

9

Second, regarding local interest, the government argues that the ACLU “has not selected a

10 forum with any particular interest to the parties or the subject matter” and that the District of 11 Columbia has “the greatest connection to the allegations and claims.”26 Indeed, the District of

12 Columbia has an interest in this case: it is where the decisionmaking process took place and where

13 the defendants are located. See Ctr. for Biological Diversity v. Export-Import Bank, No. C 12-

14 6325 SBA, 2013 WL 5273088, at *7 (N.D. Cal. Sept. 17, 2013). But, as described above, this

15 district has an interest, too: the case is brought by the ACLU’s local division, on behalf of its

16 Northern California-based members, and the ACLU alleges that the impact is in part occurring

17 through funding to a Santa Clara-based organization. This factor weighs at most only slightly in

18 favor of transfer.

19

20

* * *

21

In sum, the government has not made the strong showing necessary to overcome the ACLU’s

22 choice of forum. The government has thus failed to satisfy its burden and the court denies the

23 motion to transfer.

24

25

23 See Motion at 8; see also United States District Courts — National Judicial Caseload Profile, at 2, 66, available at

26 http://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile0930.2016.pdf.

24 Id.

27 25 Id.

28 26 Motion at 7 (internal quotations omitted).

ORDER — No. 16-cv-03539-LB

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 Case 3:16-cv-03539-LB Document 102 Filed 10/11/17 Page 1 of 13

United States District Court Northern District of California

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

San Francisco Division

11 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA,
12 Plaintiff,
13 v.
14
SYLVIA MATHEWS BURWELL, et al., 15
Defendants. 16

Case No. 16-cv-03539-LB
ORDER DENYING MOTIONS FOR LEAVE TO AMEND AND A TEMPORARY RESTRAINING ORDER

17

INTRODUCTION

18

The ACLU of Northern California filed a lawsuit — based on taxpayer standing —

19 challenging federal grants to religious organizations for the care of unaccompanied immigrant 20 minors and trafficking victims.1 Its claim initially was that the Office of Refugee Resettlement

21 (“ORR”) violates the Establishment Clause by its grants to religious groups that refuse to provide

22 unaccompanied minors and trafficking victims with “information about, access to, or referrals for 23 contraception and abortion” services.2 To challenge the grants, it sued — in their official

24 capacities — the Secretary of Health and Human Services (“HHS”), the Acting Assistant

25

26 1 See generally First Amended Compl. (“FAC”) – ECF No. 57. Record citations refer to material in the

27

Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents.

28 2 Id. at 2–3 (¶¶ 4, 7), 16–19 (¶¶ 56–69).

ORDER – No. 16-cv-03539-LB

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1 Secretary of the HHS subdivision called the Administration for Children and Families (“ACF”), 2 and the Director of ORR, which is a subdivision of the ACF.3

3

The ACLU now moves to amend its complaint to add (1) Jane Doe as class representative for a

4 nationwide class of pregnant unaccompanied minors and (2) class claims challenging the

5 government’s obstruction of access to abortion, compelled counseling, and compelled disclosure 6 of the abortion decision to crisis pregnancy centers, parents, and immigration sponsors.4 The

7 claims are based on the government’s new policies promulgated in March 2017 that prevent

8 shelters from taking any actions facilitating access to abortions — including transportation to 9 medical appointments — without signed approval from the Director of ORR.5 The government

10 also allegedly forces counseling at anti-abortion crisis pregnancy centers and compels minors to

11 disclose their identities and abortion decisions to those centers, their parents, and their 12 immigration sponsors.6 The proposed class claims — which seek only injunctive relief — allege

13 violations of the minors’ Fifth Amendment right to privacy and liberty and First Amendment right

14 to be free from compelled speech (by being forced to discuss their decision to have an abortion 15 with a crisis pregnancy center).7 The proposed amended complaint keeps the earlier Establishment

16 Clause challenge to the federal government’s expenditure of funds but recasts it slightly as a claim

17 by all plaintiffs (as opposed to the earlier claim by the ACLU based on taxpayer standing).8

18

The named plaintiff Jane Doe is a pregnant minor in a federally funded shelter in Texas.9 It is

19 not a religious shelter.10 In addition to her claims on behalf of a similarly situated class, she brings

20 a Bivens claim against the Acting Assistant Secretary for the ACF and the Director of the ORR,

21

22 3 Id. at 6 (¶¶ 18–20).
23 4 See Motion for Leave to Amend – ECF No. 82; Proposed Second Amended Compl. (“SAC”) – ECF No. 82-2.
24 5 Proposed Second Amended Complaint (“SAC”) – ECF No. 82-2 at 12 (¶¶ 37–38).
25 6 E.g., id. at 13–14 (¶¶ 43–44).
26 7 Id. at 27–28 (¶¶ 96–102). 8 Id. at 28–29 (¶¶ 107–114).
27 9 Id. at 7 (¶ 22).
28 10 White Decl. – ECF No. 92-1 at 2 (¶ 4).

ORDER – No. 16-cv-03539-LB

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1 claiming that they are blocking her right to an abortion, obstructing that right (for example, by

2 forcing her to visit a crisis pregnancy center, telling her mother about her pregnancy, and trying to

3 force her to talk with her mother about her pregnancy and planned abortion), all in violation of the 4 First and Fifth Amendments.11 The government impeded Ms. Doe’s initial efforts to obtain an

5 abortion, but ultimately it allowed her to pursue a judicial bypass in lieu of obtaining parental 6 consent for the abortion (as required by Texas law).12 Thereafter, a Texas state court issued a court 7 order allowing her to obtain an abortion without parental consent.13 The government will not

8 transport her or allow anyone to transport her for (1) the mandatory pre-counseling that Texas law 9 requires before an abortion or (2) the abortion procedure itself.14 Ms. Doe thus seeks

10 compensatory and punitive damages and an injunction to allow the mandatory counseling and the 11 abortion and to stop the forced counseling and compelled speech.15

12

The ACLU also moves for a temporary restraining order (“TRO”) (1) directing the federal

13 defendants to transport Ms. Doe — or if Ms. Doe prefers, to allow her guardian or attorney ad

14 litem to transport her — to the abortion provider closest to her shelter to obtain (a) counseling

15 (required by state law) on October 12, 2017, and (b) the abortion procedure on October 13, 2017;

16 (2) temporarily restraining the federal defendants from interfering with or obstructing Ms. Doe’s

17 access to abortion; and (3) temporarily restraining the federal defendants from further forcing Ms. 18 Doe to reveal her abortion decision to anyone, or revealing it to anyone themselves.16 The

19 government asks the court to deny the motion to amend the complaint on several grounds,

20 including lack of venue and improper joinder, and it asks the court to deny the motion for a 21 TRO.17

22

23 11 SAC – ECF No. 82-2 at 28 (¶¶ 103–106).
24 12 Id. at 7 (¶ 22). 13 Id.
25 14 Id.
26 15 Id. at 28 (¶ 105).
27 16 Motion for TRO – ECF No. 84. 17 Opposition to Motion for Leave to Amend – ECF No. 92; Opposition to Motion for TRO – ECF
28 No. 94.

ORDER – No. 16-cv-03539-LB

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1

The court denies the motion for leave to file an amended complaint. The Doe plaintiff is not in

2 this district. The wrongful acts for the new claims did not take place in this district. The new

3 claims are not “closely related” to the venued Establishment Clause claim, and concerns of

4 judicial economy and fairness do not support pendent venue. For similar reasons, permissive

5 joinder is not appropriate under Rule 20(a). Finally, discovery is closed, the deadline to amend the

6 pleadings has passed, and the proposed amended complaint transforms the case at a late date to

7 add new claims and new theories of recovery. The case is better brought as a new lawsuit.

8

Because the court denies leave to amend, the court denies Ms. Doe’s motion for a TRO

9 without prejudice to her bringing it in a different lawsuit.

10

11

OTHER RELEVANT CONTEXT

12

The ACLU filed its complaint in June 2016 and challenged the ORR’s funding of religious

13 organizations that care for “unaccompanied immigrant children.”18 See 8 U.S.C. § 1232(b)(1); see

14 also 6 U.S.C. § 279(b). The care includes, among other things, routine medical care, family15 planning services, and emergency health services.19 In cases of sexually abused minors, ORR must

16 provide “unimpeded access to emergency medical treatment, crisis intervention services, 17 emergency contraception, and sexually transmitted infections prophylaxis.”20 45 C.F.R.

18 § 411.92(a). And if pregnancy results from sexual abuse, the victim must “receive[ ] timely and 19 comprehensive information about all lawful pregnancy-related medical services . . . .”21 Id.

20 § 411.93(d).

21

ORR provides these services through a network of facilities and shelters.22 It grants funds to

22 private entities — including religious organizations — to care for the children.23

23

24 18 Compl. – ECF No. 1 at 6–7 (¶¶ 20–22).
25 19 Id. at 8 (¶ 27).
26 20 Id. at 8 (¶ 28). 21 Id.
27 22 Id. at 7 (¶ 24).
28 23 Id. at 2 (¶ 3).

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1

In February 2017, the ACLU amended its complaint to add a similar Establishment Clause

2 challenge to ORR’s funding of religious organizations providing services to victims of human 3 trafficking.24

4

Thus, the lawsuit, as the ACLU framed it in the complaint and the first amended complaint

5 (“FAC”), was about the religious organizations. The charge was that ORR — in granting funds —

6 authorized grantees to impose religiously based restrictions on access to reproductive-health care 7 that the young women were entitled to receive by law.25 United States Conference of Catholic

8 Bishops (“USCCB”) is one such religious organization that receives ORR funding and “issues 9 subgrants to Catholic Charities.”26 (The court allowed permissive intervention to the USCCB.27)

10 The ACLU sought an injunction ordering the defendants to issue grants “without the imposition of 11 religiously based restrictions.”28

12

The proposed second amended complaint (“SAC”) adds class claims and an individual claim

13 by Jane Doe that are predicated on the following change to government policy in March 2017:

14

Effective immediately, ORR is requiring grantees to notify ORR through their

15

assigned Federal Field Staff immediately of any request or interest on any girl’s part in terminating her pregnancy. A response from ORR Director would be

16

required before taking any next steps (i.e., scheduling appointments, pursuing a

judicial bypass, or any other facilitative step).

17

Per the policy, “Grantees are prohibited from taking any actions in these cases

18

without direction and approval from ORR.” Approval for such procedures would

19

be provided in the form of a signed authorization from the Director of ORR. To restate and reinforce the existing policy, grantees may not perform Heightened

20

Medical Procedures without written authorization from the ORR Director, except in

emergency medical situations (as described in Emergency Medical Services).

21

Grantees should not conduct procedures, or take any steps that facilitate future

appointments without signed written authorization from the ORR Director. Note

22

that the requirement for written authorization by the ORR Director applies whether

23

the procedure will be paid for with Federal funds or by other means.

24

25 24 FAC – ECF No. 57 at 16–19 (¶¶ 56–69).
26 25 Id. at 3 (¶ 7); see also Compl. – ECF No. 1 at 3 (¶ 7). 26 FAC – ECF No. 57 at 3 (¶ 7).
27 27 Order Allowing Intervention – ECF No. 58 at 3.
28 28 FAC – ECF No. 57 at 22 (Prayer, ¶ 2).

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Please ensure close adherence and understanding of the policy. Approval for such

1

procedures can only be authorized by the ORR Director in writing. Failure to

2

adhere to this policy will be a significant issue of non-compliance.29

3 The proposed SAC adds the following class-action claims: (1) the government exerts a veto power

4 over abortion in violation of the Fifth Amendment right to privacy and liberty; (2) compelled

5 counseling violates the First Amendment right against compelled speech (in the form of the

6 minors’ disclosing their identities and abortion decisions); and (3) compelled disclosure of this 7 information violates the Fifth Amendment right to informational privacy.30 It retains the

8 Establishment Clause challenge (slightly recast as a claim brought by all plaintiffs, meaning, the 9 ACLU, Jane Doe, and Jane Doe on behalf of the class).31 And it adds Jane Doe’s Bivens claim for 10 damages and injunctive relief.32

11

ANALYSIS

12 1. Leave to Amend

13

The main issue is whether the court should grant leave to amend the complaint. The court does

14 not grant leave to amend.

15

First, venue does not exist here for the new claims under 28 U.S.C. § 1391(e).

16

In an official-capacity lawsuit against a federal agency, venue is proper in any judicial district:

in which (A) a defendant in the action resides, (B) a substantial part of the events or

17

omissions giving rise to the claim occurred, or a substantial part of property that is

18

the subject of the action is situated, or (C) the plaintiff resides if no real property is

involved in the action.

19

28 U.S.C. § 1391(e). 20

No defendant resides here. No events or omissions took place here. Jane Doe is in Texas. A 21

“substantial part” of the defendants’ allegedly wrongful activities relating to the new claims did 22

not occur here: they occurred in Texas. There are no material acts bearing a “close nexus” to the 23

new claims — so that they can be considered substantial for venue purposes — in the Northern 24

25
26 29 Amiri Decl., Ex. B – ECF No. 84-3 at 5–6 (ORR Email, March 10, 2017). 30 SAC – ECF No. 82-2 at 27–28 (¶¶ 96–102).
27 31 Id. at 28–29 (¶¶ 107–114).
28 32 Id. at 28 (¶¶103–106).

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1 District. See Martensen v. Koch, 942 F. Supp. 2d 983, 997 (N.D. Cal. Apr. 30, 2013), on

2 reconsideration in part, No. 12-CV-5257-JSC, 2013 WL 4734000 (N.D. Cal. Sept. 3, 2013).

3

The ACLU contends that the ORR policies apply to all grantees, and two grantee shelters are

4 in the Northern District: Southwest Key Pleasant Hill of Contra Costa County, California, and

5 Catholic Charities of Santa Clara County, CA.33 Documents show that these shelters have housed

6 pregnant unaccompanied children in the past, and they presumably will in the future.34 But Jane

7 Doe — the class representative — has no nexus to this district. She suffered no harm here, and no

8 named plaintiff has in this district for the class claims. It is the plaintiffs’ burden to establish

9 venue, and they have not. Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th

10 Cir. 1979); Kaia Foods, Inc. v. Bellafiore, 70 F. Supp. 3d 1178, 1183 (N.D. Cal. 2014).

11

The next issue is whether the court in its discretion should exercise pendent venue. The court

12 does not find pendent venue.

13

Venue is proper for the ACLU’s Establishment Clause claim based on its taxpayer standing. If

14 venue is proper as to one claim, a court may exercise pendent venue over the claims that do not

15 have venue if the claims are “closely related” to the venued claim. See, e.g., United Tactical Sys.

16 LLC v. Real Action Paintball, Inc., 108 F. Supp. 3d 733, 753 (N.D. Cal. 2015).

17

The ACLU argues that the new claims are closely related to the venued claim.35 But the

18 parties, proof, and theories of liability are different, the common facts do not result in “closely

19 related” claims, and concerns about judicial economy and fairness do not favor adjudicating all

20 claims in one lawsuit.

21

The ACLU’s best counter-argument is that the new policies inform the Establishment Clause

22 analysis too. The original challenge to the previous administration’s policies for religious grantees

23 changes — from a proof perspective — if the previous administration’s work-around to those

24 grantees no longer exists, and instead, a revised ORR policy precludes any grantee from taking

25

26 33 Reply – ECF No. 98 at 4–5.

27

34 Id. at 5 (citing Amiri Decl. in Supp. of Class Certif. Motion, Ex. C-3 – ECF No. 83-6 at 6, Bates No. PRICE_PROD_00009730).

28 35 Reply – ECF No. 98 at 5.

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1 any facilitative steps — without written approval from the ORR Director — for a minor who

2 wants to end her pregnancy. But that common evidence does not change the court’s conclusion

3 that the new claims are not closely related to the existing Establishment Clause claim.

4

Another consideration is that the court’s discretionary pendent-venue analysis considers

5 principles of judicial economy, convenience, avoidance of piecemeal litigation, and fairness to the

6 litigants. See Martensen, 942 F. Supp. 2d at 998. Venue for the earlier complaints was built

7 entirely on the ACLU’s taxpayer standing. And while the ACLU’s ties here were sufficient for the

8 court to deny the government’s motion to transfer the case to the District of Columbia, the analysis 9 changes with the new claims.36 In a case where operative facts have not occurred in the forum, a 10 plaintiff’s choice of forum can be given only minimal deference.37 That consideration in a transfer

11 analysis is similar to the fairness inquiry for pendent venue. Here, it supports not exercising

12 pendent venue over the new claims. The plaintiffs also advance judicial economy and avoiding

13 piecemeal litigation, but when the claims are different, there is limited efficiency to adjudicating

14 all claims here, even if there may be some overlap in evidence and witnesses.

15

The cases that the ACLU cites in support of pendent venue do not change this outcome. In

16 United Tactical, for example, the court found pendent venue over abuse-of-process and malicious

17 prosecution claims (based on events in Illinois) because a conspiracy claim was properly venued

18 here, and the claims were closely related. 108 F. Supp. 3d at 738–39, 755. And in Martensen v.

19 Koch, the court found pendent venue over a section 1983 claim involving the same defendant and

20 many of the same events as the venued false-imprisonment claim. 942 F. Supp. 2d. at 998. Again,

21 the claims were closely related. Id.

22

By contrast, here, the new claims are not closely related to the Establishment Clause challenge

23 to ORR’s funding to religious grantees and instead transform the case to a class-action First and

24 Fifth Amendment challenge to ORR’s new policy instructing all grantee shelters to restrict

25 minors’ access to abortion and related health-care services. This is not a case involving a single

26

27 36 Order – ECF No. 76 at 4–12. 28 37 Id. at 4.

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1 wrong, common issues of proof, and similar witnesses such that pendent venue advances the

2 interests of judicial economy and fairness.

3

Also, the pendent-venue cases in this district involve venued claims under 28 U.S.C. §

4 1391(b). See Martensen, 942 F. Supp. 2d at 998. By contrast, the case here involves a venued

5 claim against the government under § 1391(e). § 1391(e) “is designed to permit an action which is

6 essentially against the United States to be brought locally rather than in the District of Columbia

7 as would normally be required if Washington, D.C., is the official residence of the agency sued.”

8 Gilbert v. DaGrossa, 756 F.2d 1455, 1460 (9th Cir. 1985) (citing Stafford v. Briggs, 444 U.S. 527,

9 539–40 (1980). Pendent venue for new and different claims against the government — based only

10 on the venued ACLU claim — arguably is not appropriate procedurally in the way that it might be

11 for related claims in the § 1391(b) cases. And only district courts, and not the Ninth Circuit, have

12 addressed the pendent-venue doctrine. See Martensen, 942 F. Supp. 2d at 998 (“While the Ninth

13 Circuit does not appear to have addressed the issue, courts in this District have applied the pendent

14 venue doctrine. . . .”).

15

Second, permissive joinder is not appropriate either. Persons may join in one action as

16 plaintiffs if:

17

(A) They assert any right to relief jointly, severally, or in the alternative with

respect to or arising out of the same transaction, occurrence, or series of

18

transactions or occurrences; and

19

(B) any question of law or fact common to all plaintiffs will arise in the action.

20 Fed. R. Civ. P. 20(a).

21

The ACLU’s argument is similar to its argument for pendent venue: the case involves actions

22 by the same defendants permitting or authorizing shelters to violate a minor’s right to access

23 abortion care and related health services.38 And it contends that that the case involves just two

24 plaintiffs with substantially similar legal claims that arise from the same factual allegations made

25 against the same defendants.39 For the reasons that inform the pendent-venue analysis, the court

26

27 38 Reply – ECF No. 98 at 7–8. 28 39 Id. at 9.

ORDER – No. 16-cv-03539-LB

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1 disagrees. The new claims form a substantially different case that does not have common

2 questions of law and fact with the Establishment clause claim. And while courts construe Rule 20

3 liberally to “promote trial convenience and expedite the final determination of disputes,” League

4 to Save Lake Tahoe v. Tahoe Reg’l Planning Agency, 558 F.2d 914, 917 (9th Cir. 1977), when the

5 new and old claims are based on different facts and different legal theories, joinder does not

6 promote trial convenience or judicial economy.

7

In sum, the proposed SAC transforms the case by adding new class claims, advancing new

8 theories of liability and recovery, naming individual defendants (in their individual capacity), and

9 adding a representative plaintiff who suffered harm only in Texas. See Briggs v. United States, No.

10 07-CV-5760-WHA, 2009 WL 113387, at *5 (N.D. Cal. Jan. 16, 2009) (“courts generally hold that

11 the named plaintiffs must satisfy the applicable venue requirements but that unnamed plaintiffs

12 need not satisfy those requirements”) (citing Dukes v. Wal-Mart Stores, Inc., No. 01-CV-1902806-

13 MJJ, 2001 WL 1902806, at *3 (N.D. Cal. Dec. 3, 2001). The Ninth Circuit disfavors amendment

14 when it alters the course of the litigation at a late hour. Morongo Band of Mission Indians v. Rose,

15 893 F.2d 1074, 1079 (9th Cir. 1990).

16

The court recognizes that leave to amend generally is liberally granted. It does not doubt the

17 ACLU’s diligence: these are late-arising claims that it could not have discovered earlier. For this

18 reason, the parties confine their analysis — as they should — to Federal Rule of Civil Procedure

19 15(a), and not Rule 16(b). Moreover, the court would have no problem allowing an amendment to

20 conform the complaint to the evidence regarding the Establishment Clause claim, even though the 21 deadline to amend the pleadings was in February 201740 and fact discovery ended on October 10, 22 2017.41 But at this late date, the court does not grant leave to file an amended complaint to add the

23 new claims.

24

In reaching this conclusion, the court does not rely on the government’s first-to-file argument.

25 The doctrine is discretionary and involves the doctrine of federal comity. Alltrade, Inc. v. Uniweld

26

27 40 Order – ECF No. 41 at 2. 28 41 Stipulation – ECF No. 78 at 3.

ORDER – No. 16-cv-03539-LB

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1 Prod., Inc., 946 F.2d 622, 623, 628 (9th Cir. 1991); Pacesetter Sys., Inc. v. Medtronic, Inc., 678

2 F.2d 93, 94 (9th Cir. 1982); Ward v. Follett Corp., 158 F.R.D. 645, 648 (N.D. Cal. 1994). The

3 one-hour difference in filing times in different venues is negligible. See Selection Mgmt. Sys., Inc.

4 v. Torus Speciality Ins. Co., No. 15-CV-05445-YGR, 2016 WL 304781, at *3 (N.D. Cal. Jan. 26,

5 2016). The court does not apply the doctrine.

6

The Flores settlement also does not bar the relief. The government contends only that the

7 settlement agreement provides that Jane Doe can seek relief under the agreement.42 The ACLU

8 counters persuasively that Jane Doe does not seek to enforce the Flores consent decree and instead 9 makes claims under the First and Fifth Amendments.43

10

11 2. The TRO

12

The court’s decision moots the motion for a TRO.

13

A temporary restraining order preserves the status quo and prevents irreparable harm until a

14 hearing can be held on a preliminary-injunction application. Granny Goose Foods, Inc. v. Bhd. of

15 Teamsters & Auto Truck Drivers, 415 U.S. 423, 429 (1974). A temporary restraining order is an

16 “extraordinary remedy” that the court should award only when a plaintiff makes a clear showing

17 that it is entitled to such relief. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). A

18 temporary restraining order may be issued without providing the opposing party an opportunity to

19 be heard only if “specific facts in an affidavit or a verified complaint clearly show that immediate

20 and irreparable injury, loss, or damage will result to the movant before the adverse party can be

21 heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A).

22

The standards for a temporary restraining order and a preliminary injunction are the same.

23 Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A

24 movant must demonstrate (1) a likelihood of success on the merits, (2) a likelihood of irreparable

25 harm that would result if an injunction were not issued, (3) the balance of equities tips in favor of

26

27 42 Opposition – ECF No. 92 at 10. 28 43 Reply – ECF No. 98 at 1.

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1 the plaintiff, and (4) an injunction is in the public interest. Winter, 555 U.S. at 22–24. The

2 irreparable injury must be both likely and immediate. Id. at 20–21. “[A] plaintiff must demonstrate

3 immediate threatened injury as a prerequisite to preliminary injunctive relief.” Caribbean Marine

4 Serv. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988).

5

Before Winter, the Ninth Circuit employed a “sliding scale” test that allowed a plaintiff to

6 prove either “(1) a likelihood of success on the merits and the possibility of irreparable injury; or

7 (2) [ ] serious questions going to the merits were raised and the balance of hardships tips sharply

8 in its favor.” Walczak v. EPL Prolong, Inc., 198 F.3d 725, 731 (9th Cir. 1999) (citation omitted).

9 In this continuum, “the greater the relative hardship to [a movant], the less probability of success

10 must be shown.” Id. After Winter, the Ninth Circuit held that although the Supreme Court

11 invalidated the sliding scale approach, the “serious questions” prong of the sliding scale survived

12 so long as the movant satisfied the other elements for preliminary relief. All. for Wild Rockies v.

13 Cottrell, 632 F.3d 1127, 1131–32 (9th Cir. 2011). Thus, a preliminary injunction may be

14 appropriate when a movant raises “serious questions going to the merits” and the “balance of

15 hardships tips sharply in the plaintiff’s favor,” provided that the other elements for relief also are

16 satisfied. Id. at 1134–35.

17

Here, the court denied leave to amend the complaint (based on venue, permissive joinder, and

18 timing). Jane Doe is not a plaintiff, and the court thus denies the motion for a TRO without

19 prejudice to Ms. Doe’s asserting it in a different lawsuit.

20

If the court had granted leave to amend, however, the analysis would be different, and the

21 court would grant the TRO and (1) order the government to transport Ms. Doe — or allow her

22 guardian or attorney ad litem to transport her — to the abortion provider closest to her shelter to

23 obtain (a) counseling (required by state law) on October 12, 2017, and (b) the abortion procedure

24 on October 13, 2017; and (2) temporarily restrain the government from interfering with or

25 obstructing Ms. Doe’s access to abortion. (The court would defer until a preliminary-injunction

26 hearing the third issue: whether to restrain the federal defendants from further forcing Ms. Doe to

27 reveal her abortion decision to anyone, or revealing it to anyone themselves.) The government’s

28 legitimate interest cannot justify actively preventing a woman from getting an abortion. Planned

ORDER – No. 16-cv-03539-LB

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 Case 3:16-cv-03539-LB Document 131 Filed 10/11/18 Page 1 of 34

United States District Court Northern District of California

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

San Francisco Division

11 AMERICAN CIVIL LIBERTIES UNION

Case No. 16-cv-03539-LB

OF NORTHERN CALIFORNIA, 12

Plaintiff, 13
v. 14

ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS’ CROSS-MOTIONS FOR SUMMARY

15

ALEX M. AZAR, II, Secretary of Health and JUDGMENT Human Services, et al.,

Re: ECF No. 116, 120, 121

16

Defendants,

17

v.

18 U.S. CONFERENCE OF CATHOLIC BISHOPS,
19 Defendant-Intervenor.
20

21

INTRODUCTION

22

The American Civil Liberties Union of Northern California brings this Establishment Clause

23 action in connection with two government programs, one that provides services to undocumented

24 minors who arrive in the United States without being accompanied by a parent or guardian (the

25 Unaccompanied Alien Children Program, or “UACP”) and one that provides services to victims of

26 human trafficking (the Trafficking Victim Assistance Program, or “TVAP”). The ACLU claims

27 that the government’s UACP and TVAP grant funding of, and interactions with, religious

28 organizations such as the U.S. Conference of Catholic Bishops (the “Bishops Conference” or

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1 “USCCB”) — in the face of such organizations’ religious objection to providing access to

2 abortion or contraception — violates the Establishment Clause.

3

Discovery has clarified that this case is not about the government or any religious organization

4 denying access to abortion or contraception. There is no evidence in the record that any

5 unaccompanied minor or trafficking victim who wanted an abortion or contraception during the

6 time period relevant to this case was unable to obtain them.1 While the ACLU claims that the

7 government has provided millions of dollars in grant funding to the Bishops Conference while

8 allowing the Conference to impose its religious beliefs and restrict access to abortion and

9 contraception services to the unaccompanied minors and trafficking victims in its care, the record

10 in this case does not bear this out. There is no evidence that any grant funding was used for any

11 religious purpose or that any unaccompanied minor or trafficking victim who wanted an abortion

12 or contraception was unable to obtain them.

13

The fact that certain government grantees like the Bishops Conference have religious

14 objections to abortion has, in three or four instances, led to unaccompanied minors being

15 transferred from one shelter to another. When an unaccompanied minor who is housed at a shelter

16 operated by an organization with such an objection asks for an abortion, the government facilitates

17 a transfer to another shelter that does not have objections to abortion so that the minor can obtain

18 an abortion. The ACLU argues that this transfer process harms the minor because (1) the transfer

19 delays her obtaining an abortion and (2) the transfer forces her to leave the support structure at her

20 original shelter. No unaccompanied minor is a party to this case, and the ACLU — which brings

21

22 1 In March 2017, the government allegedly promulgated new policies that prevent all shelters for
unaccompanied minors (religious and secular) from taking any actions facilitating access to abortions 23 (including transportation to medical appointments) without signed approval from defendant Scott
Lloyd, Director of the Office of Refugee Resettlement. Those policies are not at issue in this case. See 24 ACLU of N. Cal. v. Burwell, No. 16-cv-03539-LB, 2017 WL 4551492, at *1, *4–6 (N.D. Cal. Oct. 11,
2017) (Order – ECF No. 102) (denying motion to amend complaint to include claims that the 25 government itself blocking abortion access, as not closely related to the originally-pleaded
Establishment Clause claim). The government’s alleged blocking of abortion access is the subject of a 26 separate case pending in the District of Columbia, where the district court issued an order enjoining the
government from enforcing its new policies (a decision that is now on appeal). Garza v. Azar, 304 F. 27 Supp. 3d 145 (D.D.C. 2018), appeal docketed sub nom., In re Azar, No. 18-8003 (D.C. Cir. Apr. 12,
2018). 28

ORDER – No. 16-cv-03539-LB

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1 its claim solely in its capacity as a taxpayer — cannot base its claim on putative harms that it did

2 not bear itself. The ACLU also argues that the government is endorsing the Conference’s religious

3 views by participating in this process. A reasonable person would not view the government, which

4 facilitated access to abortion by transferring unaccompanied minors who want abortions to shelters

5 where they can obtain them, to be endorsing the Conference’s anti-abortion views.

6

The record in this case shows that the government’s UACP and TVAP grant relationships and

7 interactions with religious organizations like the Bishops Conference (1) had a secular purpose,

8 (2) did not have a principal or primary effect of advancing religion, and (3) did not foster an

9 excessive entanglement with religion. Cf. Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971)

10 (setting out three-part Establishment Clause test). The court therefore denies the ACLU’s motion

11 for summary judgment and grants the defendants’ cross-motions for summary judgment.

12

13

STATEMENT

14 1. The Unaccompanied Alien Children Program

15

1.1 Overview

16

Each year, tens of thousands of undocumented minors2 who are unaccompanied by their

17 parents or any legal guardian are taken into federal custody after crossing the border into the

18 United States.3 Pursuant to statute, the U.S. Department of Health and Human Services (“HHS”)

19

20 2 The government uses the terms “children” and “minors” interchangeably in the context of the UACP.

21

See, e.g., Office of Refugee Resettlement, Funding Opportunity Announcement: Residential Services for Unaccompanied Alien Children HHS-2014-ACF-ORR-ZU-0608 (“2013 UACP FOA”) – ECF No.

22

120-1 at 4 (PRICE_PROD_00001704). Citations refer to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents.

23 3 Permanent Subcomm. on Investigations, S. Comm. of Homeland Sec. & Governmental Affairs,
Protecting Unaccompanied Alien Children from Trafficking and Other Abuses: The Role of the Office 24 of Refugee Resettlement, at 1, 5 (2016), available at https://www.hsgac.senate.gov/imo/media/doc/
Majority%20&%20Minority%20Staff%20Report%20-%20Protecting%20Unaccompanied%20Alien 25 %20Children%20from%20Trafficking%20and%20Other%20Abuses%202016-01-282.pdf (last visited
Oct. 11, 2018) (cited by First Amend. Compl. (“FAC”) – ECF No. 57 at 20 (¶ 71 & n.6)) (“PSI 26 Report”); accord ACLU Mot. – ECF No. 116 at 8; Gov’t Cross-Mot. – ECF No. 120 at 7. The court
may take judicial notice of information on government websites that is not reasonably subject to 27 dispute, as a matter of public record. Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998–99 (9th Cir.
2010). 28

ORDER – No. 16-cv-03539-LB

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1 and its component agency the Office of Refugee Resettlement (“ORR”) are tasked with providing

2 care and custody to those unaccompanied minors. 8 U.S.C. § 1232(b)(1) (“Consistent with section

3 279 of Title 6, and except as otherwise provided under subsection (a), the care and custody of all

4 unaccompanied alien children, including responsibility for their detention, where appropriate, shall

5 be the responsibility of the Secretary of Health and Human Services.”); 6 U.S.C. § 279(b)(1)

6 (assigning responsibilities to ORR). Subject to considerations of “danger to self, danger to the

7 community, and risk of flight,” ORR is responsible for promptly placing unaccompanied minors in

8 “the least restrictive setting that is in the best interests of the child.” 8 U.S.C. § 1232(c)(2)(A).

9

Most unaccompanied minors who are referred to ORR are eventually released from

10 government custody to parents or sponsors who live in the United States.4 These unaccompanied

11 minors often are held in short-term facilities or shelters while they await release to their parents

12 and sponsors.5 For some unaccompanied minors, ORR cannot identify an individual who can

13 serve as a viable sponsor.6 Unaccompanied minors who are expected to be in the government’s

14 custody for an extended period or those who have special needs are sometimes transferred to a

15 group home or a foster family.7 For others, ORR may determine that the unaccompanied minor

16 must be placed in a more restrictive custodian setting.8

17

ORR is subject to the terms of the class-action settlement in Flores v. Reno, No. CV 85-4544-

18 RJK (Px) (C.D. Cal.), that the government signed in 1997 (“Flores Agreement”).9 The Flores

19 Agreement sets minimum standards for “licensed programs” — “program[s], agenc[ies] or

20 organization[s] that [are] licensed by an appropriate State agency to provide residential, group, or

21
22 4 FAC – ECF No. 57 at 8 (¶ 25); Gov’t Answer – ECF No. 60 at 4 (¶ 25). 5 FAC – ECF No. 57 at 8 (¶ 25); Gov’t Answer – ECF No. 60 at 4 (¶ 25).
23 6 FAC – ECF No. 57 at 8 (¶ 25); Gov’t Answer – ECF No. 60 at 4 (¶ 25).
24 7 FAC – ECF No. 57 at 8 (¶ 25); Gov’t Answer – ECF No. 60 at 4 (¶ 25).
25 8 FAC – ECF No. 57 at 8 (¶ 25); Gov’t Answer – ECF No. 60 at 4 (¶ 25). 9 Stipulated Settlement Agreement, Flores v. Reno, No. CV 85-4544-RJK (Px) (C.D. Cal. Jan. 17,
26 1997, as amended Dec. 7, 2001), available at https://www.aclu.org/sites/default/files/assets/flores_ settlement_final_plus_extension_of_settlement011797.pdf (last visited Oct. 11, 2018). The
27 government filed the Flores Agreement on the docket at ECF No. 92-3 and also cites to the version of the Flores Agreement on the ACLU’s website as authoritative. Gov’t Cross-Mot. – ECF No. 120 at 8.
28

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1 foster care services for dependent children” — where ORR can place unaccompanied minors.10

2 Among other things, licensed programs must provide unaccompanied minors with living

3 accommodations, food, clothing, personal grooming items, medical care, an individualized needs

4 assessment, educational services, a recreation and leisure-time plan including daily outdoor

5 activity, individual and group counseling sessions, access to religious services of the minor’s

6 choice whenever possible, visitation and contact with family members (regardless of their

7 immigration status), a reasonable right to privacy, family reunification services, and legal-services

8 information.11 Specifically with respect to medical care, the Flores Agreement states that licensed

9 programs must provide “[a]ppropriate routine medical and dental care, family planning services,

10 and emergency health care services[.]”12

11

1.2 Grants

12

1.2.1 Funding opportunity announcement

13

In 2013, ORR issued a “funding opportunity announcement” (“FOA”) to invite licensed non-

14 governmental organizations to apply for government grant funding to provide residential custody-

15 and-care services to unaccompanied minors.13 The FOA provided that services must include “a

16 complete medical examination . . .; family planning services[;] other appropriate and routine

17 medical and dental care; emergency health care services; administration of prescribed medication

18 and special diets; and appropriate mental health interventions when necessary.”14

19

Both faith-based and secular organizations were eligible to apply to participate as grantees.15

20 Grantees are subject to federal regulations that provide that they may not engage in inherently

21 religious activities, such as worship, religious instruction, or proselytization, as part of the

22

23 10 Flores Agreement – ECF No. 92-3 at 4–5 (pp. 4–5); Flores Agreement Ex. 1 – ECF No. 92-3 at 23– 24 26 (pp. 1–4).
11 Flores Agreement Ex. 1 – ECF No. 92-3 at 23–26 (pp. 1–4). 25 12 Id. at 23 (p. 1).
26 13 2013 UACP FOA – ECF No. 120-1.
27 14 Id. at 8 (PRICE_PROD_00001708). 15 See id. at 13 (PRICE_PROD_00001713).
28

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1 programs or services funded with direct governmental financial assistance. 45 C.F.R. §§ 87.1(c),

2 87.2(c) (2004) (amended Jan. 20, 2016); 45 C.F.R. §§ 87.1(c), 87.2(c) (Jan. 20, 2016) (amended

3 May 4, 2016); 45 C.F.R. § 87.3(b) (May 4, 2016). Grantees remain independent from the

4 government and may continue to express their religious beliefs, provided they do not use direct

5 financial assistance from the government to support any inherently religious activities. 45 C.F.R.

6 §§ 87.1(d), 87.2(d) (2004) (amended Jan. 20, 2016); 45 C.F.R. §§ 87.1 (d), 87.2(d) (Jan. 20, 2016)

7 (amended May 4, 2016); 45 C.F.R. § 87.3(c) (May 4, 2016).

8

The FOA provided that ORR would use objective review panels comprised of experts with

9 knowledge and experience in the area to review and evaluate grant applications.16

10

1.2.2 Grant awards

11

ORR selected and entered into grant agreements with numerous grantees.17 One of these

12 grantees was the Bishops Conference.18 The Bishops Conference in turn entered into subgrant

13 agreements with various organizations (including Catholic Charities, His House, and Youth for

14 Tomorrow) that operate facilities and shelters that provide services to unaccompanied minors.19

15 The Bishops Conference, Catholic Charities, His House, and Youth for Tomorrow received UACP

16 grants of approximately $42.9 million in fiscal year 2015, $54.7 million in fiscal year 2016, and

17 $72.7 million in fiscal year 2017.20

18

There is no evidence in the record that ORR or any government actor selected the Bishops

19 Conference as a grantee to promote Catholicism, Catholic religious views, or Catholic social

20

21 16 Id. at 33 (PRICE_PROD_00001733).

22

17 According to a U.S. Senate subcommittee report, HHS awarded 56 grants to over 30 care providers in fiscal year 2016. PSI Report at 11. Currently, ORR has agreements with just over 100 shelters in 17

23

states. Office of Refugee Resettlement, Fact Sheet: Unaccompanied Alien Children Program (June 15, 2018), available at https://www.hhs.gov/sites/default/files/Unaccompanied-Alien-Children-Program-

24

Fact-Sheet.pdf (last visited Oct. 11, 2018). As a matter of public record, the court may take judicial notice of information on government websites that is not reasonably subject to dispute. Daniels-Hall,

25 629 F.3d at 998–99.

18 See Gov’t Suppl. Interrog. Resps. – ECF No. 116-1 at 11.

26 19 FAC – ECF No. 57 at 8–9 (¶¶ 26–27); Gov’t Answer – ECF No. 60 at 5 (¶¶ 26–27); Bishops Conf.

27 Answer – ECF No. 59 at 9 (¶ 26).

20 Gov’t Suppl. Interrog. Resps. – ECF No. 116-1 at 11.

28

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1 teaching.21 There is no evidence in the record that the Bishops Conference or any of its

2 subgrantees used any government-grant money to promote Catholicism or for religious education

3 or proselytization, to maintain or improve churches or religious facilities, to purchase religious

4 items, or to distribute religious literature.22 There is no evidence in the record that the Bishops

5 Conference required any subgrantee to adopt its religious views in order to receive a subgrant.23

6

1.3 Access to Abortion

7

1.3.1 Generally

8

The Catholic Church and the Bishops Conference have moral and religious objections to

9 abortion and contraception.24 Consequently, the Conference will not provide access to abortion or

10 contraception services or refer individuals to such services.25

11

12

13 21 Cf. HHS Rule 30(b)(6) Dep. (White) – ECF No. 120-1 at 84–85 (pp. 97–98) (“Q. As deputy
14 direct[o]r of ORR, are you aware of any preferential treatment that HHS or ORR has given to any
faith-based grantee or faith-based applicant for the care and custody of unaccompanied alien children? 15 A. No.”); Bishops Conf. Bishops Conf. Rule 30(b)(6) Dep. (Kuennen) – ECF No. 121-1 at 45 (p. 69)
(“Q. Was the primary effect of the grant, as administered by USCCB, to provide funding for the 16 Catholic Church? A. No. Q. Was the primary effect of the grant, as administered by USCCB, to
promote Catholic religious views? A. No. Q. Was the primary effect of the grant, as administered by 17 USCCB, to promote Catholic social teaching? A. No.”).

18

22 Cf. Bishops Conf. Bishops Conf. Rule 30(b)(6) Dep. (Kuennen) – ECF No. 121-1 at 45 (p. 68) (“Q. Okay. Does USCCB use any funds from the grant to promote Catholicism? A. No. Q. Does

19

USCCB use any funds from the grant for proselytization? A. No. Q. Does USCCB use any funds from the grants for religious education purposes? A. No. Q. Does USCCB use any funds from the grant to

20

maintain or improve churches or other religious facilities? A. No. Q. Does USCCB use any funds from the grant to purchase religious items? A. No. Q. Does USCCB use any funds from the grant to

21 purchase or distribute religious literature? A. No.”).

23 Cf. ACLU Interrog. Resps. – ECF No. 116-1 at 60–61 (“Plaintiff states that Plaintiff’s First

22 Amended Complaint does not make such an allegation [that the Bishops Conference’s subgrantees

were compelled to adopt religious objections to abortion and/or contraception]. Plaintiff does not

23 allege that USCCB’s subgrantees were compelled to adopt religious objections but rather that they are

prohibited through funding agreements and [memorandums of understanding] from providing abortion

24 or contraception care or referrals.”).

25

24 See, e.g., Bishops Conf., Proposal for Trafficking Victim Assistance Program – ECF No. 116-1 at 182 (ACF_000105) (“This grantee is affiliated with a program of the Catholic Church, which has

26

moral and religious objections to direct sterilization, contraception, and abortion.”); HHS Rule 30(b)(6) Dep. (White) – ECF No. 120-1 at 81 (p. 44).

27 25 See, e.g., Bishops Conf., Proposal for Trafficking Victim Assistance Program – ECF No. 116-1 at
182 (ACF_000105). 28

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1

If an unaccompanied minor in the custody of a Bishops Conference subgrantee asks for an

2 abortion, the subgrantee notifies ORR and the Conference.26 ORR then arranges to transfer the

3 unaccompanied minor to another provider that does not have an objection to providing abortion

4 access.27

5

The government has stated in sworn interrogatory responses that in the three-year period

6 between fiscal year 2014 and fiscal year 2016, four unaccompanied minors that had been placed in

7 the care of faith-based grantees asked for an abortion.28 Of the four, three were transferred to other

8 care providers to provide them with access to abortion services, and one was discharged to her

9 sponsor, who moved forward with her request for an abortion.29 There is no evidence in the record

10 that any unaccompanied minor who asked for an abortion was unable to obtain one because of the

11 religious objections of the Conference or any subgrantee.30

12 26 HHS Rule 30(b)(6) Dep. (White) – ECF No. 120-1 at 76 (p. 38); Bishops Conf. Rule 30(b)(6) Dep.
13 (Kuennen) – ECF No. 121-1 at 41 (pp. 28–29); Lloyd Dep. – ECF No. 116-1 at 45 (pp. 60–61).
14 27 Gov’t Suppl. Interrog. Resps. – ECF No. 116-1 at 9 (“[T]here are no published criteria governing transfer of UCs when a UC requests abortion services, but, when a UC requested abortion services,
15 and where the religiously-affiliated grantee or subgrantee had objections to such services, the federal field specialist, in conjunction with the central office, effectuated the transfer of the UC. The UCs were
16 transferred to a facility that did not have an objection and that had available space.”); HHS Rule 30(b)(6) Dep. (White) – ECF No. 120-1 at 76 (p. 38); Lloyd Dep. – ECF No. 116-1 at 46 (pp. 75–76).
17 28 Gov’t Interrog. Resps. – ECF No. 120-1 at 58–59.
18 29 Id. 30 Cf. HHS Rule 30(b)(6) Dep. (White) – ECF No. 120-1 at 75, 84 (pp. 37, 97) (“Q. Are you aware of
19 any instance where a minor was unable to obtain an abortion because of the religious affiliation of the shelter within which she resided? A. I am not aware of any such instance. . . . Q. Are you aware of any
20 instance in which any grantee shelter has made the final decision that an unaccompanied alien child in its custody may not receive access to an abortion? A. No.”); Lloyd Dep. – ECF No. 116-1 at 46 (pp.
21 76–77) (“Q. . . . Do you know whether any minor has been unable to receive abortion or contraception because of the religious entity’s objection to providing that service? A. No. Q. No, you don’t know, or
22 no, that hasn’t happened? A. I don’t recall that happening. . . . Q. So during that period of time that you’ve been at ORR, are you aware of whether any minor has been unable to receive abortion or
23 contraception because of the religious objection of the shelter within which she resides? A. I, I am aware. I have a pretty firm recollection. Q. You are aware that that has happened? A. No, that that has
24 not happened. Q. Okay. So just to clarify, you — it is your recollection that no minor has been unable to receive abortion or contraception because of the religious objection of a grantee? A. Yes, in my
25 recollection.”); Gov’t Suppl. Interrog. Resps. – ECF No. 116-1 at 9 (“[W]hen a UC requested abortion services, and where the religiously-affiliated grantee or subgrantee had objections to such services, the
26 federal field specialist, in conjunction with the central office, effectuated the transfer of the UC. The UCs were transferred to a facility that did not have an objection and that had available space.”); accord
27 ACLU 2d Amend. Interrog. Resps. – ECF No. 116-1 at 59 (“At this time, Plaintiff has not identified particular UCs who have been prevented from obtaining an abortion because of USCCB’s policies.”).
28

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1

1.3.2 Specific examples

2

The ACLU cites four specific examples of unaccompanied minors who asked for abortion

3 services.

4

The first, “Rosa,”31 was apparently raped on her journey to the United States and became

5 pregnant.32 While residing at a shelter in Miami run by a Bishops Conference subgrantee, Catholic

6 Charities Boystown, Rosa requested an abortion.33 Catholic Charities notified ORR of Rosa’s

7 request on September 24, 2014, and asked that Rosa be transferred to another facility.34 Rosa was

8 hospitalized, and following her treatment, was not placed back at her original shelter at Catholic

9 Charities because of her request for an abortion.35 ORR reached out on September 26 to another

10 provider, the Children’s Home Society of Florida, which accepted Rosa on September 29.36 Rosa

11 appears to have obtained an abortion on October 14, 2014.37

12

The second, “Maria,” was a victim of rape who became pregnant.38 ORR was holding Maria at

13 a temporary shelter (possibly in Texas).39 Maria’s sponsors (her parents) were in Florida.40 At

14

15 31 Rosa’s real name, and the real names of the other three unaccompanied minors whose examples the

16

ACLU cites, were redacted in the documents submitted to the court and therefore are not part of the record.

17 32 See E-mail from Catholic Charities to HHS (Sept. 24, 2014 1:39 PM) – ECF No. 116-1 at 87
(ORRFOIA2015_000016). 18 33 Id.

19 34 Id.; Email from HHS to HHS (Sept. 24, 2014 9:50 PM) – ECF No. 116-1 at 86 (ORRFOIA2015_

000015).

20 35 Email from HHS to Children’s Home Soc’y of Fla. (Sept. 29, 2014 8:35 AM) – ECF No. 116-1 at 85

21

(ORRFOIA2015_000014). The ACLU states that the reason for Rosa’s hospitalization was because she had become suicidal at the prospect of not being able to obtain an abortion, ACLU Reply – ECF

22

No. 124 at 9, but the email chain it cites does not contain any discussion that supports this characterization, see Email Chain – ECF No. 116-1 at 85–87 (ORRFOIA2015_000014–16).

23 36 Email from Children’s Home Soc’y of Fla. to HHS (Sept. 29, 2014 8:36 AM) – ECF No. 116-1 at 85
(ORRFOIA2015_000014). 24 37 See Gov’t Interrog. Resps. – ECF No. 120-1 at 58.

25 38 Email from HHS to HHS (Apr. 17, 2014 7:57 PM) – ECF No. 116-1 at 78 (ORRFOIA2015_
000007). 26 39 See ACLU Reply – ECF No. 124 at 9.

27 40 Email from HHS to HHS (Apr. 18, 2014 10:27 AM) - ECF No. 116-1 at 78 (ORRFOIA2015_
000007). 28

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1 some point on or before April 17, 2014, Maria said that she wanted an abortion.41 Maria did not

2 want her parents to know that she was pregnant.42 Two ORR field specialists looked into the

3 abortion laws in both Texas and Florida and reported that the general rule in both states was that

4 minors could not have abortions without parental consent (absent exceptions, such as obtaining a

5 waiver from a judge).43 The Texas field specialist emailed other ORR staff members to say, “This

6 is why termination of pregnancies are done in New Mexico due to the fact that currently (by law)

7 there is no parental consent requirement.”44 The Florida field specialist emailed to say, “both of

8 the shelters in Florida are faith-based and will not take the child to have this procedure.”45 It

9 appears that as of April 28, 2014, Maria had not received an abortion.46 There is nothing in the

10 record that indicates that Maria was ever placed with a Bishops Conference subgrantee or that the

11 Conference was involved in this discussion. The record does not clearly indicate what ultimately

12 happened to Maria, but there is no evidence in the record that she was ultimately denied access to

13 abortion services.47

14

The third, “Michelle,” arrived at a short-term shelter referred to as “IES Shelter” and found out

15 there that she was pregnant.48 On June 2, 2014, Michelle told her clinician that she wanted to

16

17

18 41 Id.

42 Id.

19 43 Email from HHS to HHS (Apr. 17, 2014 7:57 PM) – ECF No. 116-1 at 78 (ORRFOIA2015_

20

000007); Email from HHS to HHS (Apr. 21, 2014 9:07 PM) - ECF No. 116-1 at 77 (ORRFOIA2015_ 000006).

21 44 Email from HHS to HHS (Apr. 17, 2014 7:57 PM) – ECF No. 116-1 at 78 (ORRFOIA2015_
000007) (spacing corrected). 22 45 Email from HHS to HHS (Apr. 21, 2014 9:07 PM) - ECF No. 116-1 at 77 (ORRFOIA2015_
23 000006). 46 See Email (unknown date, sender, and recipient – header not included) – ECF No.116-1 at 76
24 (ORRFOIA2015_000005).

25 47 Cf. Gov’t Interrog. Resps. – ECF No. 120-1 at 58–59. 48 Email from HHS to HHS (June 12, 2014 7:56 PM) – ECF No. 116-1 at 83–84 (ORRFOIA2015_
26 000012–13). It is not clear from the email chain what the “IES Shelter” is, but it may refer to a shelter
run by International Educational Services. The parties do not point to any evidence in the record 27 suggesting that the “IES Shelter” was run by a Bishops Conference subgrantee. Cf. ACLU Reply –
ECF No. 124 at 10 (describing the IES Shelter as a “short-term shelter”). 28

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1 explore terminating her pregnancy.49 Michelle expressed that she did not want to be transferred to

2 a new shelter where she would have to “re-tell” her story to another clinician, case manager, and

3 attorney.50 An ORR field specialist sent an email recommending that Michelle be transferred to

4 San Antonio so that she could explore the option of terminating her pregnancy.51 Once the

5 procedure was completed, the field specialist wrote, Michelle could be transferred back to IES.52

6 Various HHS staff members discussed transferring Michelle to “Seton Home” (but rejected the

7 idea because Seton Home was a shelter for pregnant women who want to keep their babies and

8 was full) or transferring her to “SW Key Casa Blanca” or “BCFS San Antonio Campus” (but

9 rejected the latter proposal because it also was full).53 It appears that as of June 25, 2014, Michelle

10 had not received an abortion.54 There is nothing in the record that indicates that Michelle was ever

11 placed with a Bishops Conference subgrantee or that the Conference was involved in this

12 discussion. The record does not clearly indicate what ultimately happened to Michelle, but there is

13 no evidence in the record that she was ultimately denied access to abortion services.55

14

The fourth, “Zoe,” was placed at a shelter run by Youth for Tomorrow, a faith-based Bishops

15 Conference subgrantee.56 On January 28, 2015, Zoe told her doctor that she did not want to have

16 the baby because the father was her cousin.57 Zoe said on multiple occasions that she wanted to

17 terminate the pregnancy and did not want to disclose the pregnancy or the decision to terminate

18

19
49 Id. at 84 (ORRFOIA2015_000013). 20 50 Id.

21 51 Id.

22 52 Id.

53 Email Chain – ECF No. 116-1 at 79–82 (ORRFOIA2015_000008–11).

23 54 See Email from HHS to HHS (June 25, 2015 11:28 AM) – ECF No. 116-1 at 79 (ORRFOIA2015_

24 00000008).

55 Cf. Gov’t Interrog. Resps. – ECF No. 120-1 at 58–59.

25 56 Email from HHS to HHS (Feb. 17, 2015 3:54 PM) – ECF No. 116-1 at 88 (ORRFOIA_000017); see

26

FAC – ECF No. 57 at 8–9 (¶ 26) (alleging that Youth for Tomorrow is a Bishops Conference subgrantee); Gov’t Answer – ECF No. 60 at 5 (¶ 26) (admitting); Bishops Conf. Answer – ECF No. 59

27 at 9 (¶ 26) (admitting).

57 Email from HHS to HHS (Feb. 17, 2015 3:54 PM) – ECF No. 116-1 at 88 (ORRFOIA_000017).

28

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1 the pregnancy to her parents.58 It appears that as of February 17, 2015, Zoe had not received an

2 abortion.59 The record does not clearly indicate what ultimately happened to Zoe, but there is no

3 evidence in the record that she was ultimately denied access to abortion services.60

4

1.4 Access to Contraception

5

If an unaccompanied minor in the custody of a Bishops Conference subgrantee asks for

6 contraception, the subgrantee is referred to a medical provider who is independent of the

7 subgrantee.61 The medical provider then addresses the unaccompanied minor’s request

8 independent of the Bishops Conference or its subgrantee.62

9

The government has stated in sworn interrogatory responses that in the three-year period

10 between 2014 and 2016, seventeen unaccompanied minors in the care of faith-based grantees

11 asked for birth-control medication.63 All seventeen received that medication — most the same day

12 or the next day after they made their requests.64 There is no evidence in the record that any

13 unaccompanied minor who asked for contraception was unable to obtain it because of the religious

14 objections of the Conference or any subgrantee.65

15

16

17

18 58 Id.
19 59 Id.
20 60 Cf. Gov’t Interrog. Resps. – ECF No. 120-1 at 58–59. 61 Bishops Conf. Rule 30(b)(6) Dep. (Kuennen) – ECF No. 121-1 at 42 (pp. 30–31).
21 62 Id.
22 63 Gov’t Interrog. Resps. – ECF No. 120-1 at 60.
23 64 Id. 65 Cf. HHS Rule 30(b)(6) Dep. (White) – ECF No. 120-1 at 84 (p. 97) (“Q. First, are you aware of any
24 instance in which any grantee shelter has made a final decision that an unaccompanied alien child in its custody may not receive contraception? A. No.”); accord ACLU 2d Amend. Interrog. Resps. – ECF
25 No. 116-1 at 59 (“As of now, Plaintiff has not identified particular UCs who have been prevented from obtaining contraceptives because of USCCB’s policies.”); see also Bishops Conf. Rule 30(b)(6) Dep.
26 (Chester) – ECF No. 120-1 at 140–41 (pp. 69–70) (Bishops Conference reimburses for contraception in some cases); Bishops Conf. Rule 30(b)(6) Dep. (Chester) – ECF No. 116-1 at 249 (pp. 88–89)
27 (Bishops Conference does not prohibit subgrantees from using TVAP funds to pay for contraception, although individual subgrantees can make a request to opt out of paying for contraception).
28

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1 2. The Trafficking Victim Assistance Program

2

2.1 Overview

3

In 2000, Congress passed the Trafficking Victims Protection Act (“TVPA”). Pub. L. No. 106-

4 386, div. A, 114 Stat. 1464, 1466–91 (2000). Congress found that “[t]rafficking in persons is a

5 modern form of slavery, and it is the largest manifestation of slavery today. At least 700,000

6 persons annually, primarily women and children, are trafficked within or across international

7 borders. Approximately 50,000 women and children are trafficked into the United States each

8 year.” 22 U.S.C. § 7101(b)(1). Congress enacted the TVPA “to combat trafficking in persons, a

9 contemporary manifestation of slavery whose victims are predominantly women and children, to

10 ensure just and effective punishment of traffickers, and to protect their victims.” 22 U.S.C.

11 § 7101(a). Among other things, the TVPA tasked HHS with expanding benefits and services to

12 trafficking victims. 22 U.S.C. § 7105(b)(1)(B)(i).

13

To that end, HHS and its component agency the Office of Trafficking in Persons (“OTIP”)

14 oversee the Trafficking Victim Assistance Program, a grant program that funds time-limited

15 comprehensive victim services to foreign trafficking victims who have received or are seeking

16 HHS certification, and certain family members.66 (OTIP was established in June 2015.67 Before

17 OTIP was established, ORR handled certain aspects of the TVAP, including issuing a Funding

18 Opportunity Announcement in early 2015.68)

19

2.2 Grants

20

2.2.1 2006–2011

21

In 2005, HHS decided to select a general contractor to administer TVAP funds. ACLU of

22 Mass. v. Sebelius, 821 F. Supp. 2d 474, 476 (D. Mass. 2012) (“ACLU of Mass. I”), vacated as

23 moot sub nom. ACLU of Mass. v. U.S. Conf. of Catholic Bishops, 705 F.3d 44 (1st Cir. 2013)

24

25 66 HHS Rule 30(b)(6) Dep. (Chon) – ECF No. 116-1 at 153 (p. 33); see also Office of Refugee Resettlement, Funding Opportunity Announcement: Trafficking Victim Assistance Program HHS-
26 2015-ACF-ORR-ZV-0976 (“2015 TVAP FOA”) – ECF No. 116-1 at 97–147.
27 67 HHS Rule 30(b)(6) Dep. (Chon) – ECF No. 116-1 at 154 (p. 37). 68 Id.
28

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1 (“ACLU of Mass. II”). HHS entered into a master contract with the Bishops Conference in 2006.

2 Id. at 477. The Conference was the only TVAP grantee selected. See id.

3

The Conference, in turn, entered into subcontracts with over 100 service providers. Id. The

4 Conference’s subcontracts included a restriction that “funds shall not be used to provide referral

5 for abortion services or contraceptive materials, pursuant to this contract.” Id.

6

The ACLU sued, alleging that the government was violating the Establishment Clause by

7 allowing a religiously based restriction on the use of taxpayer funds. Id. at 478. On cross-motions

8 for summary judgment, the District Court for the District of Massachusetts held that the

9 government’s arrangement with the Bishops Conference violated the Establishment Clause by

10 effectively endorsing the Conference’s religious views in allowing the Conference to place a

11 religiously motivated restriction on TVAP funding that subcontracting organizations could not opt

12 out of and in delegating to the Conference the authority to decide which services the TVAP would

13 fund and which services (e.g., abortion) it would not. Id. at 486–88.

14

HHS’s master contract with the Bishops Conference expired in 2011. ACLU of Mass. II, 705

15 F.3d at 48. After the expiration of its contract with the Conference, HHS awarded grants to three

16 separate organizations. Id. at 50–51. The Conference applied for a grant, but its proposal was not

17 selected. Id. at 51. Because the Conference’s grant agreement had ended, the First Circuit on

18 appeal vacated the ACLU of Massachusetts I decision as moot. Id. at 52–54.

19

The government’s 2006–2011 arrangement with the Conference is not at issue in this action.

20

2.2.2 2015 funding opportunity announcement

21

In 2015, the ORR issued a new Funding Opportunity Announcement to invite organizations to

22 apply to enter into TVAP grant agreements.69 The FOA provided that grantees must provide

23 services that included “direct services and/or community referrals for housing, mental health

24 screening and therapy, employability services, legal services, counselling, health screening and

25 medical care, including treatment for sexually transmitted infections, family planning services and

26

27
69 2015 TVAP FOA – ECF No. 116-1 at 99. 28

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1 the full range of legally permissible gynecological and obstetric care, including but not limited to

2 exams, tests, pre-natal services and non-directive health-related counselling.”70 The FOA further

3 provided that “[n]o HHS funds may be expended for an abortion, except in cases where pregnancy

4 is a result of rape or incest or where the woman suffers from a physical condition that would place

5 her life in danger unless an abortion is performed.”71 (This restriction applied equally to religious

6 and secular grantees.72)

7

Both faith-based and secular organizations were eligible to apply to participate as grantees.73

8 The FOA provided that:

9

If an applicant has a religious objection to providing any of the services or referrals

required in the program, it must explicitly describe the approach to meeting its

10

grant obligations consistent with [the ORR’s Administration for Children and

Families]’s faith-based policy. The alternative approach must be one that

11

accomplishes the goal of ensuring that trafficking victims understand the full range

of services available to them, including reproductive health services, and that there

12

is a mechanism by which victims requesting such services can receive appropriate

referrals. The alternative approach must ensure timely referrals to all services for

13

which the individual is eligible, not be burdensome to the client, and be

operationally feasible for ORR.74 14

15

As discussed above, federal regulations provide that faith-based grantees may not engage in

16 inherently religious activities. 45 C.F.R. §§ 87.1(c), 87.2(c) (2004) (amended Jan. 20, 2016); 45

17 C.F.R. §§ 87.1(c), 87.2(c) (Jan. 20, 2016) (amended May 4, 2016); 45 C.F.R. § 87.3(b) (May 4,

18 2016).

19

The FOA provided that ORR would use objective review panels comprised of experts with

20 knowledge and experience in the area to review and evaluate grant applications.75

21

22

23
24 70 Id. at 100–01. 71 Id. at 131.
25 72 HHS Rule 30(b)(6) Dep. (Chon) – ECF No. 120-1 at 111 (p. 161).
26 73 2015 TVAP FOA – ECF No. 116-1 at 109.
27 74 Id. at 120. 75 Id. at 136; accord HHS Rule 30(b)(6) Dep. (Chon) – ECF No. 120-1 at 97 at 104 (p. 80).
28

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1

2.2.3 Grant awards

2

OTIP selected and entered into grant agreements with three grantees: the Bishops Conference,

3 Tapestri, and the U.S. Committee for Refugees and Immigrants (“USCRI”).76 The Conference is a

4 faith-based organization, whereas Tapestri and USCRI are secular.77 The Conference received

5 TVAP grants of approximately $2.1 million in fiscal year 2015, $1.6 million in fiscal year 2016,

6 and $0 in fiscal year 2017.78 USCRI received TVAP grants of approximately $3.8 million in fiscal

7 year 2015, $4.4 million in fiscal year 2016, and $6.0 million in fiscal year 2017.79

8

The Bishops Conference’s original grant proposal in 2015 stated that “USCCB/MRS is

9 committed to acting in accordance with Catholic teaching in administering the program, including

10 the determination of allowable and unallowable costs. In carrying out the program, sub-recipients

11 will not provide or refer for abortion, sterilization, or artificial contraceptives and no project funds

12 will be used for that purpose.”80 In response to that provision, OTIP emailed the Bishops

13 Conference and asked:

14

Per the FOA requirements, “a grantee may not take any steps to discourage

program participants from making a request for a service available under the

15

program, nor may a grantee direct subcontractor to refrain from providing services

when the subcontractor has no religious objection to providing such services.”

16

Consistent with these requirements, no program-related documents, including, but

not limited to, sub-recipient agreement documents, memoranda of understanding,

17

program guidelines, or work plans, may limit the subcontractor’s ability to provide

any services, as specified in the TVAP FOA, for which victims are eligible. 18

• Will USCCB be able to meet this FOA requirement? 19

• USCCB stated: “ ...sub-recipients will be directed to contact USCCB/MRS

20

immediately in any cases that cannot be accommodated through existing program

21

22

76 HHS Rule 30(b)(6) Dep. (Chon) – ECF No. 120-1 at 97, 103 (pp. 34, 79)

23 77 See HHS Rule 30(b)(6) Dep. (Chon) – ECF No. 121-1 at 78 (p. 168) (re Tapestri); Bishops

24 Conference Rule 30(b)(6) Dep. (Chester) – ECF No. 116-1 at 244 (p. 51) (re USCRI).

78 Gov’t Suppl. Interrog. Resps. – ECF No. 116-1 at 12.

25 79 Id. at 13. The ACLU’s interrogatories apparently did not ask for the grant levels for Tapestri, and

26

hence this information was not included in the government’s interrogatory responses that the parties filed with the court. See id. at 12–13.

27 80 Bishops Conf., Proposal for Trafficking Victim Assistance Program – ECF No. 116-1 at 182 (ACF_
000105). 28

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guidance.” What is USCCB’s plan for cases involving a request for services that

1

USCCB or a subcontractor cannot provide due to religious objection?81

2

The Conference responded:

3

If awarded a contract for the Trafficking Victim Assistance Program (TVAP),

USCCB intends to include in its subcontracts with its sub-recipients the following

4

language:

5

“In administering the program, USCCB/MRS is committed to acting in

accordance with Catholic teaching which has moral and religious objections to

6

direct sterilization, artificial contraception, and abortion. In carrying out the

program, Sub-recipients will not provide or refer for abortion, sterilization, or

7

artificial contraceptives and no project funds will be used for that purpose. Sub-

recipients will provide all newly enrolled clients with a brochure that indicates

8

all services for which they are eligible. . . .”82

9 The Conference noted that all of its subcontractors were affiliates of Catholic agencies or Bethany

10 Christian Services that shared its religious objection to providing abortion or contraception.83 The

11 Conference said that it understood that there might be other social-services agencies that did not

12 have a religious objection to providing abortion or contraception and that those agencies would

13 have the opportunity to subcontract directly with one of the other TVAP grantees.84 The

14 Conference further said that in the event that one of its subcontractors could not provide a service

15 (e.g., abortion) to a trafficking victim due to a religious objection, it would contact other TVAP

16 grantees and/or OTIP to facilitate a transfer of the victim to another grantee.85 The Conference

17 said that unlike in the 2006–2011 time period — when the Conference was the only TVAP grantee

18 — there were now other TVAP grantees, so any potential subgrantee that did not share the

19 Conference’s religious objections could apply for TVAP funding through the other grantees.86

20

21

22 81 Email from HHS to Bishops Conf. (Sept. 17, 2015 6:02 PM) – ECF No. 116-1 at 226 23 (USCCB00000532).
82 Email from Bishops Conf. to HHS (Sept. 18, 2015 5:42 PM) – ECF No. 116-1 at 222 24 (USCCB00000529).
25 83 Id. 84 Id.
26 85 Id. at 223 (USCCB00000530).
27 86 Email from Bishops Conf. to HHS (Sept. 25, 2015 4:29 PM) – ECF No. 116-1 at 235 (USCCB00000980).
28

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1

OTIP responded that the language that the Bishops Conference proposed to include in its

2 subgrant agreements would not meet the FOA requirements.87 Citing ACLU of Massachusetts I,

3 OTIP asserted that “grantees may not adopt rules, based on their own moral or religious beliefs,

4 governing sub-grantee use of funds for a federal program.”88 In an effort to accommodate the

5 Conference, OTIP proposed revising its proposed language to read, “Sub-recipients sharing these

6 religious objections may elect will not to provide or refer for abortion, sterilization, or artificial

7 contraceptives and not to use no project funds will be used for that purpose.”89 OTIP also stated

8 that if potential subgrantees were referred to other TVAP grantees instead of the Conference, the

9 Conference’s budget would likely have to be adjusted.90

10

Following a call with OTIP, the Conference proposed removing that sentence entirely and

11 instead adding a new sentence in its agreements with subgrantees that would state, “the (named

12 agency) voluntarily agrees that it shares the religious objections of USCCB to providing or

13 referring clients for abortion, sterilization and artificial contraception, and to the use of program

14 funds for those purposes.”91 Following another call, the Conference agreed to removing its newly

15 proposed sentence as well.92 The Conference instead proposed including a statement in a program

16 brochure that would be provided to both subgrantees and trafficking victims that would state,

17 “This grantee (USCCB) is affiliated with the Catholic Church, which has moral and religious

18

19

20

21

87 Email from HHS to Bishops Conf. (Sept. 22, 2015 11:47 AM) – ECF No. 116-1 at 222 (USCCB0000528); Email from HHS to Bishops Conf. (Sept. 28, 2015 12:30 PM) – ECF No. 116-1 at

22 233–34 (USCCB00000978–79).

88 Email from HHS to Bishops Conf. (Sept. 28, 2015 12:30 PM) – ECF No. 116-1 at 234

23 (USCCB00000979).

24 89 Id. (blacklining added).
90 Id.; Email from HHS to Bishops Conf. (Sept. 22, 2015 11:47 AM) – ECF No. 116-1 at 221 25 (USCCB0000528).

26

91 Email from Bishops Conf. to HHS (Sept. 28, 2015 4:18 PM) – ECF No. 121-1 at 103 (PRICE_ PROD_00008569).

27 92 Email from Bishops Conf. to HHS (Sept. 29, 2015 10:12 AM) – ECF No. 121-1 at 102 (PRICE_
PROD_00008568). 28

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1 objections to direct sterilization, contraception, and abortion. You are free to discuss all health

2 matters with your medical provider.”93

3

OTIP and the Bishops Conference exchanged emails reconfirming that (1) both of the

4 sentences the Conference had proposed for subgrant agreements — that subgrantees “will not

5 provide or refer for abortion, sterilization, or artificial contraceptives and no project funds will be

6 used for that purpose” and that subgrantees “voluntarily agree[] that [they] share[] the religious

7 objections of USCCB to providing or referring clients for abortion, sterilization and artificial

8 contraception, and to the use of program funds for those purposes” — would be removed from any

9 TVAP-related documents and (2) the Conference would “refrain from including any language in

10 any program-related documents, including sub-agreements, limiting the ability of subcontractors

11 to provide any services, as provided in the TVAP FOA, for which victims are eligible.”94 With

12 that agreement, OTIP went forward with evaluating the Bishops Conference’s grant application

13 and ultimately selected it as a grantee (along with Tapestri and USCRI).95

14

There is no evidence in the record that OTIP or any government actor selected the Bishops

15 Conference as a grantee to promote Catholicism, Catholic religious views, or Catholic social

16 teaching.96 There is no evidence in the record that the Bishops Conference or any of its

17

18 93 Id.

19

94 Email from HHS to Bishops Conf. (Sept. 29, 2015 10:15 AM) – ECF No. 121-1 at 101–02 (PRICE_ PROD_00008567–68); Email from Bishops Conf. to HHS (Sept. 29, 2015 11:00 AM) – ECF No.

20 121-1 at 101 (PRICE_PROD_00008567).

95 See HHS Rule 30(b)(6) Dep. (Chon) – ECF No. 122-1 at 9 (p. 105) (confirming that the Bishops

21 Conference had removed from its subgrant agreements the language prohibiting subgrantees from

providing or referring for abortion or contraception).

22 96 Cf. HHS Rule 30(b)(6) Dep. (Chon) – ECF No. 120-1 at 110 (p. 160) (“Q. Okay. Was any TVAP

23

grant awarded to any religiously affiliated grantee for the purpose of promoting religion? A. No. Q. Was any TVAP grant awarded to any religiously affiliated grantee for the purpose of promoting any

24

specific religion or religious belief? A. No.”); Bishops Conf. Rule 30(b)(6) Dep (Chester) – ECF No. 121-1 at 89 (pp. 98–99, 101) (“Q. Was the primary effect of the grant, as administered by USCCB, to

25

promote or advance Catholicism? A. No. Q. Was the primary effect of the grant, as administered by USCCB, to provide funding for the Catholic Church? A. No. Q. Was the primary effect of the grant, as

26

administered by USCCB, to promote Catholicism? A. No. Q. Was the primary effect of the grant, as administered by USCCB, to promote Catholic religious views? A. No. Q. Was the primary effect of

27

the grant, as administered by USCCB, to promote Catholic social teaching? A. No. . . . Q. . . . In the course of the negotiations over the grant, did anyone at HHS ever communicate to you or anyone else

28 at USCCB that one of the government’s purposes in giving the grant to USCCB was to promote

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1 subgrantees used any TVAP grant money to promote Catholicism or for religious education or

2 proselytization, to maintain or improve churches or religious facilities, to purchase religious items,

3 or to distribute religious literature.97

4

There is no evidence in the record that the Bishops Conference required any subgrantee to

5 adopt its religious views.98 This may be in part because, at the time the Conference was selected

6 pursuant to the 2015 TVAP FOA, all of the Conference’s network of would-be subgrantees

7 already shared its religious views to begin with.99 At one point, one organization that did not share

8 the Conference’s religious views applied to be a Conference subgrantee.100 The Conference

9 referred the organization to USCRI, one of the other national TVAP grantees, because (1) “it” was

10

11

12 Catholicism? A. No. Q. Did they communicate that it was the government’s purpose to promote religion generally? A. No. Q. Did they communicate that it was the purpose to promote a specific
13 religious belief with respect to abortion and contraception? A. No.”).
14 97 Cf. HHS Rule 30(b)(6) Dep. (Chon) – ECF No. 120-1 at 110–11 (p. 160–61) (“Q. Are you aware of any grantee using TVAP grant funds for religious proselytization? A. Not that I’m aware of. Q. Are
15 you aware of any grantee using TVAP grant funds for religious instruction? A. Not that I’m aware of. Q. Are you aware of any grantee using TVAP grant funds for the purpose — oh, excuse me. Scratch
16 that. Are you aware of any grantee using TVAP grant funds for the purchase of religious items? A. Not that I’m aware of. Q. Are you aware of any grantee using TVAP grant funds for the purpose of
17 purchasing or distributing religious literature? A. Not that I’m aware of.”); Bishops Conf. Rule 30(b)(6) Dep. (Chester) – ECF No. 120-1 at 154 (p. 97) (“Q. Okay. Does USCCB use any funds from
18 the grant to promote Catholicism? A. No. Q. Does USCCB use any funds from the grant for proselytization? A. No. Q. Does USCCB use any funds from the grant for religious education
19 purposes? A. It is possible for a case manager, during the time that they are spending with the client, which would be presumably covered by the funds for the administrative reimbursement, to make
20 referrals to a client’s preferred religious organization or faith community for something like . . . .”); Bishops Conf. Rule 30(b)(6) Dep. (Chester) (cont’d) – ECF No. 121-1 at 89 (p. 98) (“. . . religious
21 education, but they can’t technically pay for any courses or any curriculum or cost associated with a religious education. Q. Okay, and that would be the client’s preferred provider, not USCCB’s preferred
22 provider? A. Correct. Q. Does USCCB use any funds from the grant to maintain or improve churches or other religious buildings? A. No. Q. Does USCCB use any funds from the grant to purchase
23 religious items? A. No. Q. Does USCCB use any funds from the grant to purchase or distribute religious literature? A. No.”).
24 98 Cf. ACLU 2d Amend. Interrog. Resps. – ECF No. 116-1 at 61 (“Plaintiff does not allege that USCCB’s subgrantees were compelled to adopt religious objections but rather that they are prohibited
25 through funding agreements and MOUs from providing abortion or contraception care or referrals.”).
26 99 See Bishops Conf., Proposal for Trafficking Victim Assistance Program app’x F – ECF No. 116-1 at 215 (ACF_000138); accord Bishops Conf. Rule 30(b)(6) Dep. (Chester) – ECF No. 121-1 at 85 (pp.
27 48–49). 100 Bishops Conf. Rule 30(b)(6) Dep. (Chester) – ECF No. 116-1 at 244 (p. 51).
28

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1 secular,101 and (2) the Conference did not have the staffing necessary to vet the organization.102

2 (Any organization is free to apply to be a subgrantee of any of the three TVAP grantees — the

3 Bishops Conference, Tapestri, and USCRI — provided that they contract with only one of the

4 grantees.103)

5

2.3 Access to abortion and contraception

6

The record does not reveal any instance of a trafficking victim who was receiving services

7 from a Bishops Conference subgrantee asking the Conference or its subgrantee for an abortion or

8 contraception. This may be because trafficking victims receiving TVAP services, unlike

9 unaccompanied minors, are generally not in the physical custody of the federal government, the

10 Conference, or its subgrantees, and thus can seek and obtain an abortion or contraception

11 independently.104

12

13 101 Id. It is unclear from the deposition testimony whether “it” refers to the prospective subgrantee or to

14 USCRI.

102 Id. at 250–51 (pp. 93–95).

15 103 2015 TVAP FOA – ECF No. 116-1 at 104 (“A TVAP grantee may subcontract with service

16

provider organizations outside of the ACF Region(s) in which it provides full coverage. A subcontractor organization must work with only one primary TVAP grantee.”); accord HHS Rule

17

30(b)(6) Dep. (Chon) – ECF No. 116-1 at 158 (p. 58); Bishops Conf. Rule 30(b)(6) Dep. (Chester) – ECF No. 116-1 at 242, 244, 245 (pp. 11, 51, 55–56).

18 104 See HHS Rule 30(b)(6) Dep. (Chon) – ECF No. 120-1 at 111–12 (pp. 161–62) (“Q. The trafficking
victims who receive care under this program, they are not in federal custody; is that correct? A. They 19 — I can’t know for every single victim, but generally they are not in federal custody. Q. And that
generally means that wherever they live, they’re free to come and go as they please, correct? A. It’s a 20 voluntary program. Q. So can any, can any grantee prevent a trafficking victim from independently
seeking contraception? A. No. Q. Can any grantee prevent a trafficking victim from independently 21 seeking access to an abortion? A. No.”); Bishops Conf. Rule 30(b)(6) Dep. (Chester) – ECF No. 121-1
at 89–90 (pp. 100–01, 103) (“Q. . . . So for the trafficking victims for whom USCCB is providing care 22 under the grant, does USCCB believe it has been delegated the authority to make ultimate
determinations as to whether these trafficking victims are allowed to get an abortion or contraception? 23 A. Because the clients actually reside in the community and we are providing the clients with, at the
local level, referrals to a service, a medical service provider, again they are often given bus passes or 24 funds to ride the bus or use public transportation, it isn’t possible for our local case managers to
prevent or prohibit a client from seeking those kinds of services. . . . Q. If a client met with their doctor 25 and requested an abortion, would that information be reported back to the case worker? A. I don’t
believe so. Q. If the client had an abortion, would the case worker be informed of that procedure? A. I 26 can’t think of an official way that that would be communicated from a medical provider back to the
case manager. Q. So is it entirely possible that a client could have an abortion without the case worker 27 ever knowing about it? A. It’s possible. Q. And would USCCB be aware of any client that has ever
requested an abortion? A. Not that I’m aware of.”). 28

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1

If a trafficking victim were to ask the Conference or its subgrantee for an abortion or

2 contraception, the Conference or the subgrantee would notify HHS.105 Unlike with unaccompanied

3 minors (who are in custody), trafficking victims (who are generally not in custody) who ask for an

4 abortion are not required to be transferred to another subgrantee.106

5

There is no evidence in the record that any trafficking victim who asked for an abortion or

6 contraception was unable to obtain either because of the religious objections of the Conference or

7 any subgrantee.107

8

9

STANDARD OF REVIEW

10

The court must grant a motion for summary judgment if the movant shows that there is no

11 genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of

12 law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). Material

13 facts are those that may affect the outcome of the case. Anderson, 477 U.S. at 248. A dispute about

14

15

16

105 HHS Rule 30(b)(6) Dep. (Chon) – ECF No. 116-1 at 162 (p. 74).

17 106 Bishops Conf. Rule 30(b)(6) Dep. (Chester) – ECF No. 121-1 at 90 (p. 104–05) (“Q. If a client

18

requested an abortion and did happen to notify the case worker about it, would the subrecipient be required to transfer that client to another subrecipient? A. No. What we’re advising the case managers

19

to do is to redirect clients back to the medical provider that they have already been connected to or to connect them — if they haven’t yet been connected — to a medical provider, and to have the client

20

understand that those are the kind of conversations and discussions that need to be held between the client and the medical provider.”).

21 107 HHS Rule 30(b)(6) Dep. (Chon) – ECF No. 120-1 at 106–08, 112–13 (pp. 132–34, 162–63)
(“Q. Okay. Do you recall any cases during the implementation of the 2015 grant where a trafficking 22 survivor requested access to abortion or contraception, and a subgrantee refused to provide on
religious grounds? A. No, I’m not aware. . . . Q. . . . Do you recall a circumstance in which a 23 beneficiary requested access to abortion and contraception and had issues accessing abortion or
contraception because of a subgrantee’s objection to providing those services? A. No. . . . Q. Okay. 24 Are you aware of any trafficking victim being provided care by a TVAP grantee who sought
contraception but was unable to obtain it due to the religious beliefs of the grantee? A. Not to my 25 knowledge. Q. Are you aware of any trafficking victim being provided care by a TVAP grantee who
sought an abortion but was unable to obtain it due to the religious beliefs of the grantee? A. Not to my 26 knowledge.”); accord ACLU 2d Amend. Interrog. Resps. – ECF No. 116-1 at 62 (“At this time,
Plaintiff has not identified particular trafficking victims who have been prevented from obtaining 27 contraceptives because of USCCB’s policies. . . . As of now, Plaintiff has not identified particular
trafficking victims who have been prevented from obtaining abortion because of USCCB’s policies.”). 28

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1 a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for

2 the non-moving party. Id. at 248–49.

3

The party moving for summary judgment bears the initial burden of informing the court of the

4 basis for the motion, and identifying portions of the pleadings, depositions, answers to

5 interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material

6 fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the moving party

7 must either produce evidence negating an essential element of the nonmoving party’s claim or

8 defense or show that the nonmoving party does not have enough evidence of an essential element

9 to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz

10 Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000); see Devereaux v. Abbey, 263 F.3d 1070, 1076

11 (9th Cir. 2001) (“When the nonmoving party has the burden of proof at trial, the moving party

12 need only point out ‘that there is an absence of evidence to support the nonmoving party’s case.’”)

13 (quoting Celotex, 477 U.S. at 325).

14

If the moving party meets its initial burden, the burden then shifts to the non-moving party to

15 produce evidence supporting its claims or defenses. Nissan Fire & Marine, 210 F.3d at 1103. The

16 non-moving party may not rest upon mere allegations or denials of the adverse party’s evidence,

17 but instead must produce admissible evidence that shows there is a genuine issue of material fact

18 for trial. See Devereaux, 263 F.3d at 1076. If the non-moving party does not produce evidence to

19 show a genuine issue of material fact, the moving party is entitled to summary judgment. See

20 Celotex, 477 U.S. at 323.

21

In ruling on a motion for summary judgment, the court does not make credibility

22 determinations or weigh conflicting evidence. Instead, it views the evidence in the light most

23 favorable to the non-moving party and draws all factual inferences in the non-moving party’s

24 favor. E.g., Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986);

25 Ting v. United States, 927 F.2d 1504, 1509 (9th Cir. 1991).

26

27

28

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1

ANALYSIS

2

The three-pronged test articulated in the Supreme Court’s decision in Lemon v. Kurtzman, 403

3 U.S. 602 (1971), remains the dominant mode of Establishment Clause analysis. Freedom From

4 Religion Found., Inc. v. Chino Valley Unified Sch. Dist. Bd. of Educ., 896 F.3d 1132, 1149 (9th

5 Cir. 2018) (citing Santa Monica Nativity Scenes Comm. v. City of Santa Monica, 784 F.3d 1286,

6 1299 n.7 (9th Cir. 2015)). To avoid violating the Establishment Clause, (1) a government practice

7 “must have a secular legislative purpose,” (2) “its principal or primary effect must be one that

8 neither advances nor inhibits religion,” and (3) “it must not foster ‘an excessive entanglement with

9 religion.’” Id. (internal brackets omitted) (quoting Lemon, 403 U.S. at 612–13). “Context is critical

10 when evaluating the government’s conduct.” Id.

11

12 1. Secular Purpose

13

The legislative purposes underlying the UACP and the TVAP, and the government’s grant

14 awards to the Bishops Conference to provide UACP and TVAP services, satisfy the first prong of

15 the Lemon test. The ACLU concedes that the UACP and the TVAP as a whole have secular

16 purposes,108 and there is no evidence in the record that the government’s UACP or TVAP grants to

17 the Conference were made for any non-secular purpose.109

18

19 2. Principal or Primary Effect of Advancing Religion

20

2.1 Grants to Religious Organizations

21

The ACLU acknowledges that the mere fact that a religiously affiliated organization like the

22 Bishops Conference receives government grants, without more, does not have the principal or

23 primary effect of advancing religion.110 The Supreme Court’s decision in Bowen v. Kendrick, 487

24

25 108 ACLU Reply – ECF No. 124 at 16–17.
26 109 See supra notes 21–22, 96–97. 110 ACLU Reply – ECF No. 124 at 25 (“Plaintiff has never taken the position in this litigation or in the
27 ACLU of Massachusetts v. Sebelius litigation that USCCB or other religiously affiliated entities should be prohibited from receiving grants.”).
28

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1 U.S. 589 (1988), is instructive on this point. That case involved a statutory government program

2 that provided grants to organizations for services and research in the area of adolescent sexual

3 relations and pregnancy. Id. at 593. Both religious and secular organizations were eligible to apply

4 for and receive government grant funding. Id. at 608. The statute was neutral with respect to

5 applicants’ religious or secular statuses. Id. The Supreme Court held that the fact that religious

6 institutions were allowed to participate as recipients of federal funds, without more, did not violate

7 the Establishment Clause. Id. at 608, 613 (“The facially neutral projects authorized by the [Act] —

8 including pregnancy testing, adoption counseling and referral services, prenatal and postnatal care,

9 educational services, residential care, child care, consumer education, etc. — are not themselves

10 ‘specifically religious activities,’ and they are not converted into such activities by the fact that

11 they are carried out by organizations with religious affiliations.”). The Court declined to adopt an

12 argument that the government’s funding of a religious organization creates a per se “symbolic

13 link” between government and religion where the government funding is used solely for secular

14 purposes. Id. at 613–14.111

15

The fact that religiously affiliated organizations like Bishops Conference received government

16 UACP and TVAP funding, standing alone, does not establish that the government’s actions had

17 the principal or primary effect of advancing religion.

18

19

20

21 111 The Supreme Court noted that a neutral statute could nonetheless have the effect of advancing
religion if government funding, even if designated for specific secular purposes, flowed to an 22 institution that is “pervasively sectarian,” i.e., “‘. . . an institution in which religion is so pervasive that
a substantial portion of its functions are subsumed in the religious mission.’” Bowen, 487 U.S. at 609– 23 10 (internal ellipsis omitted) (quoting Hunt v. McNair, 413 U.S. 734, 743 (1973)). Organizations
whose purpose is “to advance their particular religions” are “pervasively sectarian.” Agostini v. Felton, 24 521 U.S. 203, 218 (1997). But it is not enough to show that an organization “is affiliated with a
religious institution” or that it is “religiously inspired” to show that it is “pervasively sectarian.” 25 Bowen, 487 U.S. at 621. The fact that an organization might have explicit corporate ties to a particular
religious faith and by-laws or policies that prohibit any deviation from religious doctrine are relevant 26 but not conclusive to the question of whether an organization is “pervasively sectarian.” Id. at 620
n.16. Rather, the Court indicated, a pervasively sectarian organization is one whose secular purpose 27 and religious mission are “inextricably intertwined.” Id. The ACLU does not argue here, and does not
identify evidence to support, that the Bishops Conference is “pervasively sectarian.” 28

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1

2.2 Endorsement of Religious Beliefs

2

The ACLU argues that the government violates the Establishment Clause when it goes beyond

3 being neutral and “convey[s] or attempt[s] to convey a message that religion or a particular

4 religious belief is favored or preferred.”112 The ACLU asserts that the government, in entering

5 into grant agreements with the Bishops Conference despite the Conference’s religious objections

6 to abortion and contraception services, has effectively endorsed the Conference’s religious

7 views.113

8

“Governmental action has the primary effect of advancing or disapproving of religion” — and

9 thus fails the second prong of the Lemon test — “if it is ‘sufficiently likely to be perceived by

10 adherents of the controlling denominations as an endorsement, and by the nonadherents as

11 disapproval, of their individual religious choices.’ . . . from the point of view of a reasonable

12 observer who is ‘informed and familiar with the history of the government practice at issue.’”

13 Vasquez v. Los Angeles Cty., 487 F.3d 1246, 1256 (9th Cir. 2007) (internal brackets and ellipsis

14 omitted) (quoting Brown v. Woodland Joint Unified Sch. Dist., 27 F.3d 1373, 1378 (9th Cir.

15 1994)). The government’s grant relationship and interactions with the Bishops Conference in the

16 record in this litigation are not sufficiently likely to be perceived as an endorsement of the

17 Conference’s religious beliefs.

18

If anything, the government acted in a manner that is in opposition to the Conference’s

19 religious beliefs. The Conference has a moral and religious objection to abortion. In the UACP,

20 the government took affirmative steps to transfer unaccompanied minors who wanted abortions to

21 other UACP shelters that did not have objections to abortion and appears to have arranged for

22 every such minor to have access to abortion services.114 A reasonable observer would not view the

23 government’s taking affirmative steps to facilitate access to abortion as an endorsement of the

24

25 112 ACLU Mot. – ECF No. 116 at 16 (emphasis in original) (quoting County of Allegheny v. ACLU
26 Greater Pittsburgh Chapter, 492 U.S. 573, 593 (1989)).
27 113 ACLU Reply – ECF No. 124 at 20–21. 114 See supra notes 28–30.
28

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1 Conference’s anti-abortion religious beliefs. Similarly, in the TVAP, the government told the

2 Conference that the various religious provisions that the Conference had proposed to include in its

3 subgrant agreements did not comply with government requirements and made the Conference

4 remove them.115 A reasonable observer would not view the government’s requirement that the

5 Conference remove religious requirements as an endorsement of the Conference’s religious

6 beliefs.

7

2.3 Delegation of Governmental Functions

8

The ACLU argues that “delegating a government function to a religious entity

9 unconstitutionally advances religion.”116 The ACLU asserts that the government delegated to the

10 Bishops Conference (1) “the ability to determine which health services unaccompanied minors are

11 permitted to access” in the UACP, and (2) “the ability to create its own network of subgrantees,

12 and . . . to select those subgrantees based on their shared religious opposition to providing and

13 referring to abortion and contraception, and to prohibit those subgrantees from using grant funds

14 to pay for abortion counseling and services and abortive prescriptions” in the TVAP.117 The

15 ACLU’s assertions are not supported by the evidence in the record.

16

2.3.1 The UACP and the purported ability to determine which health services

unaccompanied minors are permitted to access 17

18

The record does not support the ACLU’s assertion that the government delegated to the

19 Bishops Conference the ability to determine which health services, including abortion or

20 contraception services, that unaccompanied minors are permitted to access. To the contrary, the

21 record shows that (1) if unaccompanied minors wanted access to abortion services to which the

22 Conference or its subgrantees objected on religious grounds, the government transferred them to

23 other shelters where they could access those services, and (2) if unaccompanied minors wanted

24 access to contraception services, they could obtain them directly from their medical providers

25

26 115 See supra notes 80–93.
27 116 ACLU Mot. – ECF No. 116 at 19. 117 Id. at 20.
28

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1 without the involvement of or denial by the Conference or its subgrantees.118 There is no evidence

2 in the record that any unaccompanied minor was denied access to any abortion or contraception

3 services or that the government delegated to the Bishops Conference any power to determine

4 whether or not unaccompanied minors would have access to any services.119

5

2.3.2 The TVAP and the purported ability to select subgrantees based on shared

religious views and to prohibit subgrantees from using grant funds to pay for

6

abortion services

7

The record does not support the ACLU’s assertion that the government delegated to the

8 Bishops Conference the ability to prohibit TVAP subgrantees from using grant funds to pay for

9 abortion counseling and services and abortive prescriptions. The government did not delegate to

10 the Conference the ability to prohibit subgrantees from using grant funds to pay for services such

11 as abortion or contraception. Instead, the government required the Conference to agree to “refrain

12 from including any language in any program-related documents, including sub-agreements,

13 limiting the ability of subcontractors to provide any services, as provided in the TVAP FOA, for

14 which victims are eligible.”120

15

The Bishops Conference’s alleged power to prohibit TVAP subgrantees from using grant

16 funds to pay for certain services is further limited by the presence of the other two secular TVAP

17 grantees, Tapestri and USCRI. At most, the Conference has the ability to select or veto the

18 organizations that serve as its subgrantees. The Conference does not have the ability to select or

19 veto organizations that serve as TVAP subgrantees generally, or to control the TVAP funding

20 those organizations receive or what services they provide. Subgrantees with views that run

21 contrary to the Conference’s religious beliefs can enter into subgrant agreements with Tapestri and

22

23

24 118 See supra notes 26–29, 61–64.
25 119 See supra notes 30, 65.
26 120 See supra notes 94–95. The government itself prohibited all TVAP grantees (religious and secular) from using TVAP funds for certain services, including for abortions other than in the case of rape,
27 incest, or where the woman’s life is in danger, see supra notes 71–72, but that was a government decision that involved no delegation of a governmental function to a religious organization.
28

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1 USCRI.121 The Conference thus cannot prevent subgrantees from receiving TVAP funding or

2 providing services that the Conference might oppose.122

3

This distinguishes the government’s arrangement here from the arrangement in ACLU of

4 Massachusetts I. There, the Bishops Conference was the only TVAP grantee. The Conference thus

5 could exercise the government’s full power to exclude certain subgrantees and services from

6 receiving any TVAP government funding at all. The District of Massachusetts held that this was

7 an unconstitutional delegation of a governmental function to a religious organization. See ACLU

8 of Mass. I, 821 F. Supp. 2d at 487 (“[T]he government defendants’ delegation of authority to the

9 USCCB to exclude certain services from government funding ‘provides a significant symbolic

10 benefit to religion,’ in violation of the Establishment Clause.”). Here, by contrast, the Conference

11 cannot exclude subgrantees or services from government funding.

12

Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982), another case the ACLU cites, is

13 distinguishable for the same reason. That case involved a law that gave churches an unqualified

14 right to veto liquor-license applications for any premise located within 500 feet of the church. Id.

15 at 117. The Supreme Court held that the law was unconstitutional, as the “power to veto certain

16 liquor license applications . . . . is a power ordinarily vested in agencies of the government,” and

17 delegation of that power to churches — which could employ that power “for explicitly religious

18

19 121 See supra note 103.

20

122 While not dispositive, it is worth noting that the government provided USCRI with more TVAP funding than it did the Bishops Conference for each of fiscal years 2015, 2016, and 2017, supra notes

21 78–79, and the Conference has no control over how USCRI might allocate its funding.

The ACLU argues that the Bishops Conference has the highest reimbursement rate of the three 22 grantees, and thus that “prospective subgrantees that are prohibited from subcontracting with USCCB

because they do not share USCCB’s religious beliefs are penalized.” ACLU Mot. – ECF No. 116 at 18

23 (citing HHS Rule 30(b)(6) Dep. (Chon) – ECF No. 116-1 at 165 (p. 157)). The parties do not

definitively articulate how the three TVAP grantees’ reimbursement rates are set. It appears that each 24 grantee determines its own reimbursement rates. See HHS Rule 30(b)(6) Dep. (Chon) – ECF No.

116-1 at 165 (p. 157). It also appears that reimbursement rates to subgrantees differ based on differing

25 levels of service. See Bishops Conf. Rule 30(b)(6) Dep. (Chester) – ECF No. 116-1 at 244 (p. 52).

There is nothing in the record that suggests that the Conference has any control over setting Tapestri’s 26 or USCRI’s reimbursement rates. This record, and the record of the government’s requiring the

Conference not to include any language in subgrant agreements limiting the services that subgrantees

27 can provide, cannot be fairly characterized as the government’s delegating to the Conference the

power to “penalize” subgrantees who do not share the Conference’s religious views. 28

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1 goals, for example, favoring liquor licenses for members of that congregation or adherents of that

2 faith” — violated the Establishment Clause. Id. at 122, 125–26. Here, by contrast, the Conference

3 has no similar veto power over what organizations can be TVAP subgrantees, what funding they

4 might receive, or what services they might provide.123

5

2.4 Harm to Third Parties

6

The ACLU argues that the government violates the Establishment Clause when it “authoriz[es]

7 religiously affiliated grantees to impose their faith on marginalized populations in the context of a

8 government program.”124 Citing the examples of Rosa, Maria, Michelle, and Zoe, the ACLU

9 argues that (1) the Bishops Conference’s objections to abortion has resulted in a “marginalized

10 population” of unaccompanied minors having to be transferred away from faith-based shelters,

11 and (2) these transfers have imposed harms on the minors, such as delays in receiving abortion

12 services, the loss of connections with family members, attorneys, social workers, and others at the

13 original shelter location, and shame and stigma.125 This argument fails because the ACLU lacks

14 standing to advance a claim based on the harms imposed on unaccompanied minors.

15

16

17 123 The ACLU’s citation to Board of Education of Kiryas Joel School District v. Grumet, 512 U.S. 687
(1994), does not change that outcome. That case involved an ad hoc “special” statute passed by the 18 New York State Legislature that delegated the powers to control a school district to a village populated
by “vigorously religious” residents. Id. at 691, 693. The issue there was less the village’s exercise of 19 the power to control the school district, as opposed to the government’s ad hoc decision to delegate
this power to this one religiously dominated village, without providing any assurances that the 20 government would treat other future groups the same way. See id. at 703 (“[W]hereas in Larkin it was
religious groups the Court thought might exercise civic power to advance the interests of religion (or 21 religious adherents), here the threat to neutrality occurs at an antecedent stage. The fundamental source
of constitutional concern here is that the legislature itself may fail to exercise governmental authority 22 in a religiously neutral way. The anomalously case-specific nature of the legislature’s exercise of state
authority in creating this district for a religious community leaves the Court without any direct way to 23 review such state action for the purpose of safeguarding a principle at the heart of the Establishment
Clause, that government should not prefer one religion to another, or religion to irreligion. Because the 24 religious community of Kiryas Joel did not receive its new governmental authority simply as one of
many communities eligible for equal treatment under a general law, we have no assurance that the next 25 similarly situated group seeking a school district of its own will receive one . . . .”) (internal citation
omitted). Here, there is no evidence that the government engaged in any ad hoc decision to favor the 26 Bishops Conference over any other grant applicant.
27 124 ACLU Mot. – ECF No 116 at 17. 125 Id.
28

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1

To establish standing, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly

2 traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a

3 favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v.

4 Defenders of Wildlife, 504 U.S. 555, 560 (1992)). “It requires allegations — and, eventually, proof

5 — that the plaintiff ‘personally’ suffered a concrete and particularized injury in connection with

6 the conduct of which he complains.” Trump v. Hawaii, 138 S. Ct. 2392, 2416 (2018) (internal

7 brackets omitted) (citing Spokeo, 136 S. Ct. at 1547–48). “In a case arising from an alleged

8 violation of the Establishment Clause, a plaintiff must show, as in other cases, that [it] is ‘directly

9 affected by the laws and practices against which [its] complaints are directed.’” Id. (quoting Sch.

10 Dist. v. Schempp, 374 U.S. 203, 224 n.9 (1963)).

11

The ACLU has not suffered a concrete and particularized injury and is not directly affected by

12 the practice of transferring unaccompanied minors or trafficking victims. The ACLU is not itself

13 an unaccompanied minor or trafficking victim (and does not represent any unaccompanied minor

14 or trafficking victim in this case). It thus does not have standing to bring a claim for any injuries

15 that unaccompanied minors or trafficking victims might have suffered (e.g., injuries from any

16 purported delays in receiving abortions) that it did not suffer itself.

17

The only injuries the ACLU alleges in this case that it suffered itself were putative injuries

18 borne in capacity as a taxpayer. ACLU of N. Cal. v. Burwell, No. 16-cv-03539-LB, 2016 WL

19 6962871, at *1 (N.D. Cal. Nov. 29, 2016) (ACLU of N. Cal. I); ACLU of N. Cal. v. Burwell, No.

20 16-cv-03539-LB, 2017 WL 4551492, at *1 (N.D. Cal. Oct. 11, 2017) (ACLU of N. Cal. II).126 The

21 Supreme Court “explain[ed] that individuals suffer a particular injury for standing purposes when,

22 in violation of the Establishment Clause and by means of ‘the taxing and spending power,’ their

23 property is transferred through the Government’s Treasury to a sectarian entity.” Ariz. Christian

24 Sch. Tuition Org. v. Winn, 563 U.S. 125, 139–40 (2011) (citing Flast v. Cohen, 392 U.S. 83, 105–

25

26

27
126 Orders – ECF Nos. 25, 102; see FAC – ECF No. 57 at 5 (¶ 11), 21–22 (¶¶ 76–77, 80). 28

ORDER – No. 16-cv-03539-LB

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1 06 (1968)).127 “[T]he ‘injury’ alleged in [taxpayer] Establishment Clause challenges to federal

2 spending [is] the very ‘extraction and spending’ of ‘tax money’ in aid of religion[.]” Id. at 140

3 (internal brackets omitted) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 348 (2006)). A

4 taxpayer can bring an Establishment Clause claim if there is “a resulting subsidy of religious

5 activity . . . traceable to the government’s expenditures.” Id. at 143. There is nothing in the record

6 here that supports that there was a subsidy of religious activity traceable to the government’s

7 spending of taxpayer dollars.

8

The record here shows that the government’s UACP and TVAP grant money was used to

9 provide general secular care services to unaccompanied minors and that no government money

10 was used for proselytization, religious education, religious facilities, religious items, religious

11 literature, or other religious activity.128 There is no evidence that the ACLU, or any taxpayer, was

12 forced to monetarily subsidize the Bishops Conference’s religious beliefs. To the extent that the

13 Conference declined to provide unaccompanied minors with access to abortion or contraception

14 services, it did not use any government tax money to do so, and thus its actions are not properly

15 the subject of a taxpayer-standing suit. See Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 794

16 (9th Cir. 1999) (en banc) (“Taxpayer standing protects against only one type of injury, namely the

17 ‘misuse of public funds.’ If a plaintiff identifies no public funds that were spent solely on the

18 challenged activity, then the plaintiff has not alleged a taxpayer injury.”) (citations omitted). To

19 the extent the government then had to spend additional taxpayer money to transfer unaccompanied

20 minors to non-Conference-affiliated shelters in order to provide unaccompanied minors with

21 access to abortion and contraception services, such money did not subsidize religious activity. To

22 the contrary, that additional money was money used to achieve an outcome in opposition to the

23 Conference’s religious views.

24

25

26

127 The Flast taxpayer-standing doctrine for cases involving Establishment Clause claims is a “narrow exception” to the general rule that “[a]bsent special circumstances, . . . standing cannot be based on a

27 plaintiff’s mere status as a taxpayer.” Winn, 563 U.S. at 134, 138.

128 See supra notes 22, 97.

28

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1

The court expresses no opinion about whether an unaccompanied minor who may have

2 suffered harm from being transferred or being delayed abortion services might be able to bring a

3 claim. Cf. Winn, 563 U.S. at 145 (“[I]f a law or practice . . . disadvantages a particular religious

4 [party] or a particular nonreligious [party], the disadvantaged party would not have to rely on Flast

5 [taxpayer standing] to obtain redress for a resulting injury. . . . If an establishment of religion is

6 alleged to cause real injury to particular individuals, the federal courts may adjudicate the

7 matter.”). But the ACLU cannot fit an unaccompanied minor’s challenge to harm she suffered into

8 a taxpayer-standing suit. Because there is no evidence that government tax money has been used

9 to subsidize religion, the ACLU’s third-party-harm theory fails and cannot serve as the basis for

10 the its Establishment Clause claim.129

11

12 3. Excessive Entanglement With Religion

13

The Supreme Court has held that “grant monitoring” by the government of programs set up by

14 recipients of federal grants, including “a review of . . . materials that a grantee proposes to use” or

15 “hav[ing] Government employees visit the clinics or offices where [the grantee’s] programs are

16 being carried out to see whether they are in fact being administered in accordance with statutory

17 and constitutional requirements. . . . does not amount to ‘excessive entanglement,’ at least in the

18

19

129 At the motion-to-dismiss stage, the court allowed the ACLU’s taxpayer-standing claim to go forward because the factual record was still unclear. For example, at the pleading stage, it was not

20

clear whether the government’s awarding of grants was intended to benefit religious organizations. See ACLU of N. Cal. I, 2016 WL 6962871, at *10. At summary judgment, however, the ACLU must

21

support its taxpayer-standing claim with evidence that tax money was used to subsidize religion. See Trump, 138 S. Ct. at 2416. This it has failed to do.

22 The cases the ACLU cites in support of its “harm to third parties” theory are inapposite. Each case
involved a party that was directly affected by the government practice at issue. Cf. Larkin, 459 U.S. at 23 117–18 (involving a restaurant whose liquor license was denied under a government law that gave
churches and schools the right to veto applications); Tex. Monthly, Inc. v. Bullock, 489 U.S. 1, 6 (1989) 24 (plurality op.) (involving a magazine publisher whose magazines were subject to a sales tax that the
government imposed on secular but not religious periodicals); Estate of Thornton v. Caldor, Inc., 472 25 U.S. 703, 705–06 (1985) (involving an employer whose employee refused to work on Sundays, citing
a government Sabbath law); ACLU of N.J. v. Black Horse Pike Reg’l Bd. of Educ., 84 F.3d 1471, 1475 26 (3d Cir. 1996) (en banc) (involving a student at a public high school regarding prayer at his school’s
graduation ceremony). The cases were not taxpayer-standing suits. The court expresses no opinion 27 about whether those cases support an unaccompanied minor’s claim about direct harm, but they do not
support the taxpayer-standing claim that the ACLU advances here. 28

ORDER – No. 16-cv-03539-LB

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1 context of a statute authorizing grants to religiously affiliated organizations that are not necessarily

2 ‘pervasively sectarian.’” Bowen, 487 U.S. at 616–17.

3

The ACLU points to no evidence in the record and makes no real argument that the

4 government’s grant relationship and interactions with the Bishops Conference fosters an excessive

5 entanglement with religion. To the extent that the government had to monitor the Conference to

6 review whether it was acting in compliance with statutory and constitutional requirements, there is

7 no evidence that it rose to the level of fostering excessive entanglement.

8

* * *

9

As the undisputed evidence presented to the court in this case shows that all three Lemon

10 factors were satisfied with respect to the UACP and the TVAP, summary judgment for the

11 defendants is appropriate.130

12

13

CONCLUSION

14

The court denies the ACLU’s motion for summary judgment and grants the defendants’ cross-

15 motions for summary judgment.

16

17

IT IS SO ORDERED.

18

Dated: October 11, 2018

19

______________________________________

20

LAUREL BEELER United States Magistrate Judge

21

22

23

24

25

26

27 130 In light of this determination, it is unnecessary to reach the Bishop Conference’s arguments about
religious accommodation or the Religious Freedom Restoration Act. 28

ORDER – No. 16-cv-03539-LB

34

 
 Case: 3:16-cv-3539 As of: 03/17/2020 11:17 AM PDT 1 of 17
ADRMOP,CLOSED,CONSENT,PROTO
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:16−cv−03539−LB

American Civil Liberties Union of Northern California v. Burwell et al Assigned to: Magistrate Judge Laurel Beeler Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 06/24/2016 Date Terminated: 10/11/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

American Civil Liberties Union of Northern California

represented by Brigitte Amiri American Civil Liberties Union Foundation Reproductive Freedom Project 125 Broad St 18th Fl New York, NY 10004 212−519−7897 Fax: 212−549−2651 Email: bamiri@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian M Hauss American Civil Liberties Union 125 Broad St. 18th Floor NEW YORK, NY 10004 United Sta 212−549−2604 TERMINATED: 04/20/2017

Daniel Mach American Civil Liberties Union 915 15th Street NW, Sixth Floor Washington, DC 20005 202−675−2330 Fax: 202−546−0738 Email: dmach@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Elizabeth O. Gill American Civil Liberties Union of No. Calif. 39 Drumm Street San Francisco, CA 94111 415−621−2493 Fax: 415−255−8437 Email: egill@aclunc.org ATTORNEY TO BE NOTICED

Jennifer Ling Chou American Civil Liberties Union Northern California 39 Drumm Street San Francisco, CA 94111 United Sta 415−621−2493 Fax: 415−255−8437 Email: jchou@aclunc.org

Case: 3:16-cv-3539 As of: 03/17/2020 11:17 AM PDT 2 of 17
ATTORNEY TO BE NOTICED
Meagan Burrows American Civil Liberties Union Foundation 125 Broad St, Floor 18 New York, NY 10004 212−549−2601 Email: mburrows@aclu.org ATTORNEY TO BE NOTICED
Melissa Allison Goodman ACLU of Southern California 1313 West 8th Street Los Angeles, CA 90017 213−977−5288 Email: mgoodman@aclusocal.org ATTORNEY TO BE NOTICED
Mishan Raini Wroe Riley Safer Holmes & Cancila LLP 456 Montgomery Street 16th Floor San Francisco, CA 94104 415−275−8550 Fax: 415−275−8551 Email: mwroe@rshc−law.com ATTORNEY TO BE NOTICED

V. Defendant Sylvia Mathews Burwell In the Official Capacity
Defendant

represented by Peter Joseph Phipps United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Ben Franklin Station Washington, DC 20044 (202) 616−8482 Fax: (202) 616−8470 Email: peter.phipps@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Grogg U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave. NW Washington, DC 20530 202−514−2395 TERMINATED: 08/18/2017
Martin Tomlinson United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20001 202−353−4556 Fax: 202−616−8470 Email: martin.m.tomlinson@usdoj.gov ATTORNEY TO BE NOTICED
represented by

Case: 3:16-cv-3539 As of: 03/17/2020 11:17 AM PDT 3 of 17

Mark Greenberg In the Official Capacity
Defendant Robert Carey In the Official Capacity

Peter Joseph Phipps (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Grogg (See above for address) TERMINATED: 08/18/2017
Martin Tomlinson (See above for address) ATTORNEY TO BE NOTICED
represented by Peter Joseph Phipps (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Grogg (See above for address) TERMINATED: 08/18/2017
Martin Tomlinson (See above for address) ATTORNEY TO BE NOTICED

V.
Intervenor Dft
United States Conference of Catholic Bishops

represented by Robert Edward Dunn Gibson Dunn Crutcher LLP 1881 Page Mill Rd Palo Alto, CA 94304 650−849−5317 Email: rdunn@gibsondunn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Stanley John Nowicki Gibson Dunn and Crutcher 1881 Page Mill Road Palo Alto, CA 94304−1211 (650) 849−5300 Email: dnowicki@gibsondunn.com ATTORNEY TO BE NOTICED
Eugene Scalia Gibson, Dunn and Crutcher, LLP 1050 Connecticut Avenue, NW Washington, DC 20036 202−955−8206 Email: escalia@gibsondunn.com ATTORNEY TO BE NOTICED
Jacob T Spencer Gibson, Dunn and Crutcher LLP 1050 Connecticut Ave. NW Washington, DC 20036 (202) 887−3514 Email: jspencer@gibsondunn.com ATTORNEY TO BE NOTICED

Case: 3:16-cv-3539 As of: 03/17/2020 11:17 AM PDT 4 of 17

Amicus Texas
Amicus Louisiana
Amicus Missouri
Amicus Nebraska
Amicus Ohio
Amicus Oklahoma
Amicus South Carolina

represented by David Jonathan Hacker Office of Attorney General of Texas P.O. Box 12548 Austin, TX 78711−2548 512−936−2330 Fax: 512−936−0545 Email: david.hacker@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Jonathan Hacker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Jonathan Hacker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Jonathan Hacker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Jonathan Hacker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Jonathan Hacker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Jonathan Hacker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/24/2016
06/24/2016 06/24/2016 06/24/2016

# Docket Text
1 COMPLAINT against Sylvia Mathews Burwell, Robert Carey, Mark Greenberg ( Filing fee $ 400, receipt number 0971−10555413.). Filed byAmerican Civil Liberties Union of Northern California. (Attachments: # 1 Civil Cover Sheet)(Hauss, Brian) (Filed on 6/24/2016) (Entered: 06/24/2016)
2 Proposed Summons. (Hauss, Brian) (Filed on 6/24/2016) (Entered: 06/24/2016)
3 Proposed Summons. (Hauss, Brian) (Filed on 6/24/2016) (Entered: 06/24/2016)
4 Proposed Summons. (Hauss, Brian) (Filed on 6/24/2016) (Entered: 06/24/2016)

Case: 3:16-cv-3539 As of: 03/17/2020 11:17 AM PDT 5 of 17

06/24/2016 06/24/2016
06/24/2016 06/24/2016 06/24/2016 06/27/2016 06/30/2016 07/27/2016 07/28/2016 07/29/2016 08/02/2016 09/01/2016 09/01/2016

5 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 305, receipt number 0971−10555431.) filed by American Civil Liberties Union of Northern California. (Attachments: # 1 Exhibit Certificate of Good Standing)(Amiri, Brigitte) (Filed on 6/24/2016) (Entered: 06/24/2016)
6 Case assigned to Magistrate Judge Laurel Beeler.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. by 7/8/2016. (haS, COURT STAFF) (Filed on 6/24/2016) (Entered: 06/24/2016)
7 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 9/15/2016. Case Management Conference set for 9/22/2016 11:00 AM in Courtroom C, 15th Floor, San Francisco. (farS, COURT STAFF) (Filed on 6/24/2016) (Entered: 06/24/2016)
8 Summons Issued as to Sylvia Mathews Burwell, Robert Carey, Mark Greenberg. (Attachments: # 1 Summons, # 2 Summons)(farS, COURT STAFF) (Filed on 6/24/2016) (Entered: 06/24/2016)
9 NOTICE of Appearance by Elizabeth O. Gill , Jennifer Chou, and Melissa Goodman (Gill, Elizabeth) (Filed on 6/24/2016) (Entered: 06/24/2016)
10 ORDER GRANTING APPLICATION FOR ADMISSION OF ATTORNEY PRO HAC VICE, Brigitte Amiri by Magistrate Judge Laurel Beeler: Granting 5 Motion for Pro Hac Vice. (lsS, COURT STAFF) (Filed on 6/27/2016) (Entered: 06/27/2016)
11 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by American Civil Liberties Union of Northern California.. (Chou, Jennifer) (Filed on 6/30/2016) (Entered: 06/30/2016)
12 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 305, receipt number 0971−10639925.) Filing fee previously paid on 7/27/16 filed by American Civil Liberties Union of Northern California. (Attachments: # 1 Exhibit Certificate of Good Standing)(Mach, Daniel) (Filed on 7/27/2016) (Entered: 07/27/2016)
13 ORDER GRANTING APPLICATION FOR ADMISSION OF ATTORNEY PRO HAC VICE, Daniel Mach by Magistrate Judge Laurel Beeler: Granting 12 Motion for Pro Hac Vice. (lsS, COURT STAFF) (Filed on 7/28/2016) (Entered: 07/28/2016)
14 CERTIFICATE OF SERVICE by American Civil Liberties Union of Northern California re 8 Summons Issued as to Sylvia Mathews Burwell, Robert Carey, Mark Greenberg (Amiri, Brigitte) (Filed on 7/29/2016) (Entered: 07/29/2016)
15 Certificate of Interested Entities by American Civil Liberties Union of Northern California (Chou, Jennifer) (Filed on 8/2/2016) (Entered: 08/02/2016)
16 STIPULATION WITH PROPOSED ORDER SETTING BRIEFING SCHEDULE AND STAYING INITIAL DISCOVERY OBLIGATIONS filed by Sylvia Mathews Burwell, Robert Carey, Mark Greenberg. (Phipps, Peter) (Filed on 9/1/2016) (Entered: 09/01/2016)
17 CLERK'S NOTICE Re: Consent or Declination: Defendants shall file a consent or declination to proceed before a magistrate judge Consent/Declination due by 9/9/2016. Note that any party is free to withhold consent to proceed before a magistrate judge without adverse substantive consequences. (lsS, COURT STAFF) (Filed on 9/1/2016) (Entered: 09/01/2016)

Case: 3:16-cv-3539 As of: 03/17/2020 11:17 AM PDT 6 of 17

09/02/2016
09/08/2016 09/27/2016 09/28/2016 09/28/2016 10/18/2016 11/01/2016 11/09/2016
11/14/2016 11/21/2016

18 STIPULATED ORDER SETTING BRIEFING SCHEDULE AND STAYING INTITIAL DISCOVERY by Magistrate Judge Laurel Beeler: Granting 16 Stipulation. Motion to Dismiss filing due by 9/27/2016; Plaintiff's Opposition due by 10/18/2016; Defendant's Reply due by 11/1/2016; Motion Hearing to be set for November 15, 2016. (lsS, COURT STAFF) (Filed on 9/2/2016) (Entered: 09/02/2016)
19 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Sylvia Mathews Burwell, Robert Carey, Mark Greenberg.. (Phipps, Peter) (Filed on 9/8/2016) (Entered: 09/08/2016)
20 MOTION to Dismiss for Lack of Jurisdiction filed by Sylvia Mathews Burwell, Robert Carey, Mark Greenberg. Motion Hearing set for 11/15/2016 09:30 AM in Courtroom C, 15th Floor, San Francisco before Magistrate Judge Laurel Beeler. Responses due by 10/18/2016. Replies due by 11/1/2016. (Attachments: # 1 Proposed Order)(Phipps, Peter) (Filed on 9/27/2016) (Entered: 09/27/2016)
21 CLERK'S NOTICE RESETTING MOTION HEARING DATE ONLY: Motion Hearing set for 11/17/2016 at 9:30 AM in Courtroom C, 15th Floor, San Francisco before Magistrate Judge Laurel Beeler. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ls, COURT STAFF) (Filed on 9/28/2016) (Entered: 09/28/2016)
Set/Reset Deadlines as to 20 MOTION to Dismiss for Lack of Jurisdiction . Opposition due by 10/18/2016. Replies due by 11/1/2016. Motion Hearing set for 11/17/2016 at 9:30 AM in Courtroom C, 15th Floor, San Francisco before Magistrate Judge Laurel Beeler. (lsS, COURT STAFF) (Filed on 9/28/2016) (Entered: 09/28/2016)
22 RESPONSE (re 20 MOTION to Dismiss for Lack of Jurisdiction ) filed byAmerican Civil Liberties Union of Northern California. (Hauss, Brian) (Filed on 10/18/2016) (Entered: 10/18/2016)
23 REPLY (re 20 MOTION to Dismiss for Lack of Jurisdiction ) filed bySylvia Mathews Burwell, Robert Carey, Mark Greenberg. (Phipps, Peter) (Filed on 11/1/2016) (Entered: 11/01/2016)
Set/Reset Hearing Motion Hearing set for 11/21/2016 09:30 AM in Courtroom C, 15th Floor, San Francisco before Magistrate Judge Laurel Beeler.
The court has a scheduling conflict out of the district on 11/17/2016 and 11/18/2016 and thus resets the motion hearing for 11/21/2016 at 9:30 a.m. The court realizes that the new hearing date is during Thanksgiving week and thus may be inconvenient for the parties. They may reset the hearing by stipulation to any morning in November at 9:30 a.m. or any Thursday at 9:30 a.m. in December. (Beeler, Laurel) (Filed on 11/9/2016) (Entered: 11/09/2016)
Set/Reset Deadlines as to 20 Motion to Dismiss for Lack of Jurisdiction . Motion Hearing set for 11/21/2016 at 9:30 AM in Courtroom C, 15th Floor, San Francisco before Magistrate Judge Laurel Beeler. (lsS, COURT STAFF) (Filed on 11/14/2016) (Entered: 11/14/2016)
24 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Motion Hearing held on 11/21/2016 − Re 20 Motion to Dismiss for Lack of Jurisdiction filed by Sylvia Mathews Burwell, Robert Carey, Mark Greenberg. Court will issue an order. (Digital FTR Recording: 10:46−11:22)

Plaintiff Attorney: Brigitte Amiri and Jennifer Chou.

Defendant Attorney: Peter J. Phipps.

11/29/2016

This is a text only Minute Entry. (lsS, COURT STAFF) (Date Filed: 11/21/2016) Modified on 12/19/2016: Matter transcribed by Joan Columbini. (rjdS, COURT STAFF). (Entered: 11/21/2016)
25 Order denying 20 Motion to Dismiss for Lack of Jurisdiction entered by Magistrate Judge Laurel Beeler.

Case: 3:16-cv-3539 As of: 03/17/2020 11:17 AM PDT 7 of 17

11/29/2016 12/09/2016 12/12/2016
12/13/2016 12/15/2016
12/15/2016 12/15/2016 12/16/2016
12/16/2016 12/16/2016 12/16/2016 12/16/2016

The attached order denies the motion to dismiss and finds that the ACLU has taxpayer standing. The court also sets an initial case−management conference for 12/15/2016 at 11 a.m. The parties previously stipulated that their schedule would resume within three weeks of the court's order. (See ECF No. 18 at 2). The schedule includes their initial conference regarding discovery and ADR, the Rule 26(f) report, and the initial case−management conference. (See id.) Given that the case is not calendared now, the court sets the initial case−management conference. The parties may change that date by stipulation to any Thursday at 11 a.m. The parties must confer by 12/1/2016 and submit any case−management statement or stipulation by 12/8/2016. (Entered: 11/29/2016)
Set/Reset Hearing Initial Case Management Conference set for 12/15/2016 11:00 AM in Courtroom C, 15th Floor, San Francisco. (Beeler, Laurel) (Filed on 11/29/2016) (Entered: 11/29/2016)
26 STIPULATION WITH PROPOSED ORDER RESCHEDULING STATUS CONFERENCE AND PERMITTING TELEPHONIC PARTICIPATION filed by Sylvia Mathews Burwell, Robert Carey, Mark Greenberg. (Phipps, Peter) (Filed on 12/9/2016) Modified on 12/9/2016 (farS, COURT STAFF). (Entered: 12/09/2016)
27 STIPULATION AND ORDER RESCHEDULING STATUS CONFERENCE AND PERMITTING TELEPHONIC PARTICIPATION by Magistrate Judge Laurel Beeler: Granting 26 Stipulation. A Joint Case Management Statement due by 12/16/2016. Case Management Conference set for 12/22/2016 at 11:00 AM in Courtroom C, 15th Floor, San Francisco. Counsel to make arrangements through CourtCall. (ls, COURT STAFF) (Filed on 12/12/2016) (Entered: 12/12/2016)
28 ADR Clerk's Notice re: Non−Compliance with Court Order (ewh, COURT STAFF) (Filed on 12/13/2016) (Entered: 12/13/2016)
29 MOTION to Intervene as defendant filed by United States Conference of Catholic Bishops. Motion Hearing set for 1/19/2017 09:00 AM in Courtroom C, 15th Floor, San Francisco before Magistrate Judge Laurel Beeler. Responses due by 12/29/2016. Replies due by 1/5/2017. (Attachments: # 1 Exhibit USCCB's Proposed Answer, # 2 Proposed Order)(Dunn, Robert) (Filed on 12/15/2016) (Entered: 12/15/2016)
30 NOTICE of Appearance by Robert Edward Dunn (Dunn, Robert) (Filed on 12/15/2016) (Entered: 12/15/2016)
31 NOTICE of Appearance by Eugene Scalia (Scalia, Eugene) (Filed on 12/15/2016) (Entered: 12/15/2016)
32 CLERK'S NOTICE RESETTING HEARING TIME: Initial Case Management Conference set for 12/22/2016 at 9:30 AM in Courtroom C, 15th Floor, San Francisco. Counsel may appear by phone. Counsel to make arrangements through CourtCall. (This is a text−only entry generated by the court. There is no document associated with this entry.) (lsS, COURT STAFF) (Filed on 12/16/2016) (Entered: 12/16/2016)
33 CLERK'S NOTICE RESETTING HEARING TIME ONLY: Motion Hearing reset to 1/19/2017 at 9:30 AM in Courtroom C, 15th Floor, San Francisco before Magistrate Judge Laurel Beeler. (lsS, COURT STAFF) (Filed on 12/16/2016) (Entered: 12/16/2016)
Set/Reset Deadlines as to 29 MOTION to Intervene as defendant. Motion Hearing set for 1/19/2017 at 9:30 AM in Courtroom C, 15th Floor, San Francisco before Magistrate Judge Laurel Beeler. (lsS, COURT STAFF) (Filed on 12/16/2016) (Entered: 12/16/2016)
34 TRANSCRIPT ORDER for proceedings held on 11/21/2016 before Magistrate Judge Laurel Beeler by American Civil Liberties Union of Northern California, for Court Reporter FTR − San Francisco. (Amiri, Brigitte) (Filed on 12/16/2016) (Entered: 12/16/2016)
35 CASE MANAGEMENT STATEMENT (Joint) filed by Sylvia Mathews Burwell, Robert Carey, Mark Greenberg. (Phipps, Peter) (Filed on 12/16/2016) (Entered: 12/16/2016)

Case: 3:16-cv-3539 As of: 03/17/2020 11:17 AM PDT 8 of 17

12/18/2016 12/20/2016 12/21/2016 12/22/2016 12/22/2016
12/22/2016
12/23/2016 12/23/2016 12/24/2016 12/27/2016 12/28/2016 12/28/2016

36 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by United States Conference of Catholic Bishops.. (Dunn, Robert) (Filed on 12/18/2016) (Entered: 12/18/2016)
37 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options by Plaintiff (Amiri, Brigitte) (Filed on 12/20/2016) (Entered: 12/20/2016)
38 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Phipps, Peter) (Filed on 12/21/2016) (Entered: 12/21/2016)
39 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) (Phipps, Peter) (Filed on 12/22/2016) (Entered: 12/22/2016)
40 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Initial Case Management Conference via CourtCall held on 12/22/2016. Court will issue a Case−Management and Pretrial Order. (Not Reported)
Plaintiff Attorney: Bridgitte Amiri and Jennifer Chou.
Defendant Attorney: Peter Phipps and Daniel Nowicki.
This is a text only Minute Entry. (ls, COURT STAFF) (Date Filed: 12/22/2016) (Entered: 12/22/2016)
41 CASE−MANAGEMENT AND PRETRIAL ORDER (Bench): Bench Trial set for 3/26/2018 at 8:30 AM before Magistrate Judge Laurel Beeler. Further Case Management Conference set for 3/23/2017 at 11:00 AM in Courtroom C, 15th Floor, San Francisco. Last day for dispositive Motions Hearing/or/Further Case Management Conference set for 12/7/2017 at 9:30 AM in Courtroom C, 15th Floor, San Francisco before Magistrate Judge Laurel Beeler. Pretrial Conference set for 3/15/2018 at 1:00 PM in Courtroom C, 15th Floor, San Francisco before Magistrate Judge Laurel Beeler. Amended Pleadings due by 2/20/2017. A Joint Case Management Statement (with updated information only) due by 3/16/2017. Discovery due by 8/18/2017. Bench Trial set for 3/27/2018 at 8:30 AM before Magistrate Judge Laurel Beeler. Bench Trial set for 3/28/2018 at 8:30 AM before Magistrate Judge Laurel Beeler. Bench Trial set for 3/29/2018 at 8:30 AM before Magistrate Judge Laurel Beeler. Bench Trial set for 3/30/2018 at 8:30 AM before Magistrate Judge Laurel Beeler. Signed by Magistrate Judge Laurel Beeler on 12/22/2016. (lsS, COURT STAFF) (Filed on 12/22/2016) (Entered: 12/22/2016)
42 MOTION for Extension of Time to File Response/Reply and Hearing Date; Proposed Order filed by American Civil Liberties Union of Northern California. (Attachments: # 1 Declaration in Support of Motion)(Amiri, Brigitte) (Filed on 12/23/2016) (Entered: 12/23/2016)
43 OPPOSITION/RESPONSE (re 42 MOTION for Extension of Time to File Response/Reply and Hearing Date; Proposed Order ) filed byUnited States Conference of Catholic Bishops. (Attachments: # 1 Declaration, # 2 Exhibit)(Dunn, Robert) (Filed on 12/23/2016) (Entered: 12/23/2016)
44 Order re 42 Motion for Extension of Time to File Response/Reply entered by Magistrate Judge Laurel Beeler. The court will sort out the timing issues next Wednesday but issues this short order now to clarify that the opposition will not be due next week. The parties ought to get together by phone next Tuesday and try to sort this out. (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 12/24/2016)
45 STIPULATION WITH PROPOSED ORDER filed by United States Conference of Catholic Bishops. (Dunn, Robert) (Filed on 12/27/2016) (Entered: 12/27/2016)
46 ORDER by Magistrate Judge Laurel Beeler granting 45 Stipulation EXTENDING BRIEFING DEADLINES AND HEARING DATE FOR THE UNITED STATES CONFERENCE OF CATHOLICB ISHOPS MOTION TO INTERVENE. (ahm, COURT STAFF) (Filed on 12/28/2016) (Entered: 12/28/2016)
Set/Reset Deadlines as to 29 MOTION to Intervene as defendant. Responses due by 1/12/2017. Replies due by 1/19/2017. Motion Hearing reset for 2/2/2017 at 09:30 AM

Case: 3:16-cv-3539 As of: 03/17/2020 11:17 AM PDT 9 of 17

12/29/2016
12/29/2016 01/12/2017 01/12/2017 01/18/2017 01/19/2017 01/25/2017 01/26/2017 01/27/2017 02/01/2017 02/01/2017
02/02/2017

in Courtroom C, 15th Floor, San Francisco before Magistrate Judge Laurel Beeler. (ahm, COURT STAFF) (Filed on 12/28/2016) (Entered: 12/28/2016)
47 Transcript of Proceedings held on November 21, 2016, before Judge Laurel Beeler. Court Reporter/Transcriber Joan Marie Columbini, CSR, telephone number joan.columbini.csr@gmail.com 510−367−3043. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 34 Transcript Order ) Redaction Request due 1/19/2017. Redacted Transcript Deadline set for 1/30/2017. Release of Transcript Restriction set for 3/29/2017. (Related documents(s) 34 ) (Columbini, Joan) (Filed on 12/29/2016) (Entered: 12/29/2016)
48 TRANSCRIPT ORDER for proceedings held on 11/21/16 before Magistrate Judge Laurel Beeler by United States Conference of Catholic Bishops, for Court Reporter Joan Columbini. (Dunn, Robert) (Filed on 12/29/2016) (Entered: 12/29/2016)
49 OPPOSITION/RESPONSE (re 29 MOTION to Intervene as defendant ) filed byAmerican Civil Liberties Union of Northern California. (Hauss, Brian) (Filed on 1/12/2017) (Entered: 01/12/2017)
50 OPPOSITION/RESPONSE (re 29 MOTION to Intervene as defendant ) filed bySylvia Mathews Burwell, Robert Carey, Mark Greenberg. (Phipps, Peter) (Filed on 1/12/2017) (Entered: 01/12/2017)
Set/Reset Hearing Motion Hearing set for 2/2/2017 11:00 AM in Courtroom C, 15th Floor, San Francisco before Magistrate Judge Laurel Beeler. The court resets the time of the hearing from 9:30 a.m. to 11:00 a.m. to leave some room between the criminal and civil calendars. (Beeler, Laurel) (Filed on 1/18/2017) (Entered: 01/18/2017)
51 REPLY (re 29 MOTION to Intervene as defendant ) filed byUnited States Conference of Catholic Bishops. (Dunn, Robert) (Filed on 1/19/2017) (Entered: 01/19/2017)
Set/Reset Deadlines as to 29 MOTION to Intervene as defendant. Motion Hearing set for 2/2/2017 10:59 AM in Courtroom C, 15th Floor, San Francisco before Magistrate Judge Laurel Beeler. (tmiS, COURT STAFF) (Filed on 1/25/2017) (Entered: 01/25/2017)
52 STIPULATION WITH PROPOSED ORDER re 29 MOTION to Intervene as defendant for government counsel's telephonic participation at the hearing filed by Sylvia Mathews Burwell, Robert Carey, Mark Greenberg. (Phipps, Peter) (Filed on 1/26/2017) (Entered: 01/26/2017)
53 STIPULATION AND ORDER PERMITTING TELEPHONIC PARTICIPATION by Magistrate Judge Laurel Beeler: Granting 52 Stipulation. Counsel to make arrangements through CourtCall. (lsS, COURT STAFF) (Filed on 1/27/2017) (Entered: 01/27/2017)
54 NOTICE of Appearance by Daniel Stanley John Nowicki (Nowicki, Daniel) (Filed on 2/1/2017) (Entered: 02/01/2017)
55 First MOTION to Amend/Correct 1 Complaint, filed by American Civil Liberties Union of Northern California. Motion Hearing set for 3/9/2017 09:30 AM in Courtroom C, 15th Floor, San Francisco before Magistrate Judge Laurel Beeler. Responses due by 2/15/2017. Replies due by 2/22/2017. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Exhibit)(Chou, Jennifer) (Filed on 2/1/2017) (Entered: 02/01/2017)
56 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Motion to Intervene and Motion to Amend/Correct Complaint Hearing held on 2/2/2017 − Re 29 Motion to Intervene and 55 First Motion to Amend/Correct 1 Complaint filed by American Civil Liberties Union of Northern California − Granting 55 Motion to Amend/Correct. Court will issue an order. Motion hearing set for March 9, 2017 is vacated. (Digital FTR Recording: 11:03−11:16)
Plaintiff Attorney: Brian Hanss and Brigitte Amiri.

Case: 3:16-cv-3539 As of: 03/17/2020 11:17 AM PDT 10 of 17

02/02/2017 02/07/2017 02/16/2017 02/16/2017 03/07/2017 03/09/2017
03/14/2017
03/16/2017 03/17/2017
03/23/2017 03/30/2017 04/06/2017 04/08/2017

Defendant Attorney: Peter Phipps (CourtCall).
Intervenor: Robert Dunn and Daniel Nowicki.
This is a text only Minute Entry. (lsS, COURT STAFF) (Date Filed: 2/2/2017) (Entered: 02/02/2017)
57 AMENDED COMPLAINT against All Defendants. Filed byAmerican Civil Liberties Union of Northern California. (Chou, Jennifer) (Filed on 2/2/2017) (Entered: 02/02/2017)
58 Order by Magistrate Judge Laurel Beeler granting 29 Motion to Intervene. The court grants USCCB's motion for permissive intervention. (lblc1S, COURT STAFF) (Filed on 2/7/2017) (Entered: 02/07/2017)
59 ANSWER to Amended Complaint byUnited States Conference of Catholic Bishops. (Dunn, Robert) (Filed on 2/16/2017) (Entered: 02/16/2017)
60 ANSWER to Amended Complaint bySylvia Mathews Burwell, Robert Carey, Mark Greenberg. (Phipps, Peter) (Filed on 2/16/2017) (Entered: 02/16/2017)
61 NOTICE of Appearance by Adam Grogg on behalf of defendants (Grogg, Adam) (Filed on 3/7/2017) (Entered: 03/07/2017)
62 MOTION to Transfer Case to the District Court for the District of Columbia filed by Sylvia Mathews Burwell, Robert Carey, Mark Greenberg. Motion Hearing set for 4/13/2017 09:30 AM in Courtroom C, 15th Floor, San Francisco before Magistrate Judge Laurel Beeler. Responses due by 3/23/2017. Replies due by 3/30/2017. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Phipps, Peter) (Filed on 3/9/2017) (Entered: 03/09/2017)
63 CLERK'S NOTICE CONTINUING CASE MANAGEMENT CONFERENCE. In light of the pending motion to transfer, the court moves the CMC to the motions hearing date of 4/13/2017 at 9:30 a.m. Case Management Statement are due by 4/6/2017. If a CMC would be useful in the interim, counsel may put the CMC back on calendar by filing a CMC statement on 3/16/2017 and calling Roger Moua at 415−522−3140. (This is a text−only entry generated by the court. There is no document associated with this entry.) (rxmS, COURT STAFF) (Filed on 3/14/2017) (Entered: 03/14/2017)
64 STIPULATION WITH PROPOSED ORDER re 62 MOTION to Transfer Case to the District Court for the District of Columbia, 63 Clerk's Notice,, filed by American Civil Liberties Union of Northern California. (Chou, Jennifer) (Filed on 3/16/2017) (Entered: 03/16/2017)
65 STIPULATION AND ORDER Continuing Hearing and Permitting Telephonic Participation. Set/Reset Deadlines as to 62 MOTION to Transfer Case to the District Court for the District of Columbia. Motion Hearing and Case Management Conference reset for 4/20/2017 at 9:30 AM in Courtroom C, 15th Floor, San Francisco before Magistrate Judge Laurel Beeler. Case Management Statement due by 4/13/2017. Counsel to make arrangements through Courtcall (1−866−582−6878). Signed by Judge Laurel Beeler on 3/17/2017(rxmS, COURT STAFF) (Filed on 3/17/2017) (Entered: 03/17/2017)
66 OPPOSITION/RESPONSE (re 62 MOTION to Transfer Case to the District Court for the District of Columbia ) filed byAmerican Civil Liberties Union of Northern California. (Chou, Jennifer) (Filed on 3/23/2017) (Entered: 03/23/2017)
67 REPLY (re 62 MOTION to Transfer Case to the District Court for the District of Columbia ) filed bySylvia Mathews Burwell, Robert Carey, Mark Greenberg. (Phipps, Peter) (Filed on 3/30/2017) (Entered: 03/30/2017)
68 Certificate of Interested Entities by United States Conference of Catholic Bishops (Dunn, Robert) (Filed on 4/6/2017) (Entered: 04/06/2017)
Set/Reset Hearing Motion Hearing set for 4/27/2017 11:00 AM in Courtroom C, 15th Floor, San Francisco before Magistrate Judge Laurel Beeler.

Case: 3:16-cv-3539 As of: 03/17/2020 11:17 AM PDT 11 of 17

04/13/2017 04/14/2017 04/20/2017 04/20/2017
04/24/2017 04/25/2017 04/27/2017
04/28/2017 05/25/2017 05/26/2017 08/18/2017 08/18/2017 09/29/2017 10/05/2017

The court has an unexpected conflict on 4/20/2017 and so resets the hearing to 4/27/2017 at 11:00 a.m. The court's previous orders authorizing telephone appearances remain in effect.
(This is at text−only order.) (Beeler, Laurel) (Filed on 4/8/2017) (Entered: 04/08/2017)
69 CASE MANAGEMENT STATEMENT (Updated) filed by Sylvia Mathews Burwell, Robert Carey, Mark Greenberg. (Phipps, Peter) (Filed on 4/13/2017) (Entered: 04/13/2017)
70 CLERK'S NOTICE RESETTING TIME OF MOTION HEARING. (This is a text−only entry generated by the court. There is no document associated with this entry.) The court reset the time of the motion hearing set for 4/27/2017 from 11:00 AM to 9:30 AM. (rxmS, COURT STAFF) (Filed on 4/14/2017) (Entered: 04/14/2017)
71 NOTICE by American Civil Liberties Union of Northern California Notice of Withdrawal (Chou, Jennifer) (Filed on 4/20/2017) (Entered: 04/20/2017)
72 ORDER Signed by Judge Laurel Beeler on 4/20/2017 NOTICE OF WITHDRAWAL OF COUNSEL. Brian M. Hauss is no longer counsel of record for Plaintiff in this action and will be working in a different subject matter area at the American Civil Liberties Union Foundation. Plaintiff in this action continues to be represented by other counsel. (rxmS, COURT STAFF) (Filed on 4/20/2017) (Entered: 04/20/2017)
73 Proposed Order by Sylvia Mathews Burwell, Robert Carey, Mark Greenberg. (Phipps, Peter) (Filed on 4/24/2017) (Entered: 04/24/2017)
74 ORDER re 73 Stipulated Protective Order signed by Judge Laurel Beeler on 4/25/2017. (rxmS, COURT STAFF) (Filed on 4/25/2017) (Entered: 04/25/2017)
75 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Motion Hearing held on 4/27/2017 re 62 MOTION to Transfer Case. Motion hearing held. Court to issue an order.
FTR Time: 10:03−10:07. Plaintiff's Attorney: Brigitte Amiri. Defendants' Attorney: Peter Phipps and Adam Grogg by Courtcall. Intervenor: Robert Dunn by Courtcall
This is a text−only Minute Entry (rxmS, COURT STAFF) (Date Filed: 4/27/2017) (Entered: 04/27/2017)
76 Order by Magistrate Judge Laurel Beeler denying 62 Motion to Transfer Case. (lblc1S, COURT STAFF) (Filed on 4/28/2017) (Entered: 04/28/2017)
77 STIPULATION WITH PROPOSED ORDER amending case management order filed by Sylvia Mathews Burwell, Robert Carey, Mark Greenberg. (Phipps, Peter) (Filed on 5/25/2017) (Entered: 05/25/2017)
78 Order signed by Magistrate Judge Laurel Beeler granting 77 STIPULATION AMENDING CASE MANAGEMENT ORDER. (rxmS, COURT STAFF) (Filed on 5/26/2017) (Entered: 05/26/2017)
79 NOTICE of Appearance by Martin Tomlinson on Behalf of Defendants (Tomlinson, Martin) (Filed on 8/18/2017) (Entered: 08/18/2017)
80 NOTICE of Substitution of Counsel by Adam Grogg (Grogg, Adam) (Filed on 8/18/2017) (Entered: 08/18/2017)
81 NOTICE of Appearance by Mishan Raini Wroe (Wroe, Mishan) (Filed on 9/29/2017) (Entered: 09/29/2017)
82 Second MOTION to Amend/Correct Plaintiff's Complaint filed by American Civil Liberties Union of Northern California. Motion Hearing set for 10/5/2017 03:00 PM in Courtroom C, 15th Floor, San Francisco before Magistrate Judge Laurel Beeler. Responses due by 10/19/2017. Replies due by 10/26/2017. (Attachments: # 1 Declaration Declaration of Brigitte Amiri in Support of Plaintiff's Motion for Leave to

Case: 3:16-cv-3539 As of: 03/17/2020 11:17 AM PDT 12 of 17

10/05/2017
10/05/2017
10/05/2017 10/05/2017 10/05/2017

File Second Amended Complaint, # 2 Exhibit Second Amended Complaint, # 3 Proposed Order Proposed Order on Motion to Amend Complaint)(Amiri, Brigitte) (Filed on 10/5/2017) (Entered: 10/05/2017)
83 First MOTION to Certify Class filed by American Civil Liberties Union of Northern California. Motion Hearing set for 10/5/2017 03:00 PM in Courtroom C, 15th Floor, San Francisco before Magistrate Judge Laurel Beeler. Responses due by 10/19/2017. Replies due by 10/26/2017. (Attachments: # 1 Declaration of Brigitte Amiri in Support of Plaintiffs' Motino for Class Certification, # 2 Exhibit Ex. A to Declaration of Brigitte Amiri in Support of Motion for Class Certification, # 3 Exhibit Ex. B to Declaration of Brigitte Amiri in Support of Motion for Class Certification, # 4 Exhibit Ex. C−1 to Declaration of Brigitte Amiri in Support of Motion for Class Certification, # 5 Exhibit Ex. C−2 to Declaration of Brigitte Amiri in Support of Motion for Class Certification, # 6 Exhibit Ex. C−3 to Declaration of Brigitte Amiri in Support of Motion for Class Certification, # 7 Exhibit Ex. C−4 to Declaration of Brigitte Amiri in Support of Motion for Class Certification, # 8 Exhibit Ex. C−5 to Declaration of Brigitte Amiri in Support of Motion for Class Certification, # 9 Exhibit Ex. C−6 to Declaration of Brigitte Amiri in Support of Motion for Class Certification, # 10 Proposed Order Proposed Order Granting Plaintiffs' Motion for Class Certification)(Amiri, Brigitte) (Filed on 10/5/2017) (Entered: 10/05/2017)
84 First MOTION for Temporary Restraining Order filed by American Civil Liberties Union of Northern California. (Attachments: # 1 Declaration Declaration of Brigitte Amiri in Support of Plaintiffs' Motion for TRO/Preliminary Injunction, # 2 Exhibit Ex. A to Declaration of Brigitte Amiri in Support of Plaintiffs' Motion for TRO/Preliminary Injunction, # 3 Exhibit Ex. B to Declaration of Brigitte Amiri in Support of Plaintiffs' Motion for TRO/Preliminary Injunction, # 4 Exhibit Ex. C to Declaration of Brigitte Amiri in Support of Plaintiffs' Motion for TRO/Preliminary Injunction, # 5 Exhibit Ex. D to Declaration of Brigitte Amiri in Support of Plaintiffs' Motion for TRO/Preliminary Injunction, # 6 Exhibit Ex. E to Declaration of Brigitte Amiri in Support of Plaintiffs' Motion for TRO/Preliminary Injunction, # 7 Exhibit Ex. F to Declaration of Brigitte Amiri in Support of Plaintiffs' Motion for TRO/Preliminary Injunction, # 8 Exhibit Ex. G to Declaration of Brigitte Amiri in Support of Plaintiffs' Motion for TRO/Preliminary Injunction, # 9 Exhibit Ex. H to Declaration of Brigitte Amiri in Support of Plaintiffs' Motion for TRO/Preliminary Injunction, # 10 Exhibit Ex. I to Declaration of Brigitte Amiri in Support of Plaintiffs' Motion for TRO/Preliminary Injunction, # 11 Declaration Declaration of Jane Doe in Support of in Support of Plaintiffs' Motion for TRO/Preliminary Injunction, # 12 Proposed Order Proposed Order On Plaintiffs' Motion for TRO/Preliminary Injunction)(Amiri, Brigitte) (Filed on 10/5/2017) (Entered: 10/05/2017)
85 Proposed Order re 83 First MOTION to Certify Class by American Civil Liberties Union of Northern California. (Amiri, Brigitte) (Filed on 10/5/2017) (Entered: 10/05/2017)
86 ORDER.
The court calls for a short response to the TRO by 6 p.m. PDT tonight, 10/5/2017. The court apologizes for the slightly late notice, but no one informed the court about the TRO until just now.
(Beeler, Laurel) (Filed on 10/5/2017) (Entered: 10/05/2017)
87 CLERK'S NOTICE: Scheduling Telephonic hearing before Magistrate Judge Laurel Beeler re Plaintiff's Motion for TRO and Preliminary Injunction (Docket No. 84).
All counsel shall call the number below, as per instructions, to participate in the hearing with Magistrate Judge Laurel Beeler.
Telephonic Motion Hearing (TRO) set for 10/6/2017 at 09:00 a.m., before Magistrate Judge Laurel Beeler.
The parties shall call the Court at the following number:
Conference Call Number: 1−877−336−1839 Access Code: 8191201#

Case: 3:16-cv-3539 As of: 03/17/2020 11:17 AM PDT 13 of 17

10/05/2017 10/05/2017 10/06/2017
10/06/2017 10/09/2017 10/09/2017 10/09/2017 10/10/2017 10/10/2017 10/10/2017 10/10/2017

Security Code: 100617# (this code is date of hearing). The Host (the Court) will begin the conference promptly at 9:00 a.m.
(rmm2S, COURT STAFF) (Filed on 10/5/2017) (Entered: 10/05/2017)
88 OPPOSITION/RESPONSE (re 84 First MOTION for Temporary Restraining Order ) filed bySylvia Mathews Burwell, Robert Carey, Mark Greenberg. (Tomlinson, Martin) (Filed on 10/5/2017) (Entered: 10/05/2017)
89 OPPOSITION/RESPONSE (re 84 First MOTION for Temporary Restraining Order ) filed byUnited States Conference of Catholic Bishops. (Dunn, Robert) (Filed on 10/5/2017) (Entered: 10/05/2017)
90 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Motion Hearing held on 10/6/2017 re 84 First MOTION for Temporary Restraining Order filed by American Civil Liberties Union of Northern California. Motion Hearing set for 10/11/2017, at 09:30 AM in Courtroom C, 15th Floor, San Francisco before Magistrate Judge Laurel Beeler. With the parties' agreement, the court limits the briefing to the Amended Complaint and the Motion for TRO. Briefing Schedule: Responses due by 10/9/2017 at 9:00 a.m, Pacific Time. Replies due by 10/10/2017 at 9:00 a.m., Pacific Time .
FTR Time: 9:05−9:22. Total Time in Court: 17 mins. Plaintiffs' Attorneys (by phone): Jennifer Chou, Brigitte Amiri,. Defendants' Attorneys (by phone): Martin Tomlinson, Peter Phipps. Intervenor Defendant Attorney: (by phone): Robert Dunn. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Date Filed: 10/6/2017) Modified on 10/6/2017 (Beeler, Laurel). (Entered: 10/06/2017)
91 Proposed Order re 84 First MOTION for Temporary Restraining Order by American Civil Liberties Union of Northern California. (Chou, Jennifer) (Filed on 10/6/2017) (Entered: 10/06/2017)
92 OPPOSITION/RESPONSE (re 82 Second MOTION to Amend/Correct Plaintiff's Complaint ) filed bySylvia Mathews Burwell, Robert Carey, Mark Greenberg. (Attachments: # 1 Exhibit White Declaration, # 2 Exhibit Texas Litigation Materials, # 3 Exhibit Flores Settlement Agreement)(Tomlinson, Martin) (Filed on 10/9/2017) (Entered: 10/09/2017)
93 OPPOSITION/RESPONSE (re 82 Second MOTION to Amend/Correct Plaintiff's Complaint ) filed byUnited States Conference of Catholic Bishops. (Attachments: # 1 Declaration of Robert Dunn)(Dunn, Robert) (Filed on 10/9/2017) (Entered: 10/09/2017)
94 OPPOSITION/RESPONSE (re 84 First MOTION for Temporary Restraining Order ) filed bySylvia Mathews Burwell, Robert Carey, Mark Greenberg. (Attachments: # 1 Exhibit Unpublished San Miguel Homes Decision)(Tomlinson, Martin) (Filed on 10/9/2017) (Entered: 10/09/2017)
95 NOTICE of Appearance by David Jonathan Hacker (Hacker, David) (Filed on 10/10/2017) (Entered: 10/10/2017)
96 MOTION to File Amicus Curiae Brief filed by Louisiana, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, Texas. Motion Hearing set for 10/11/2017 09:30 AM in Courtroom C, 15th Floor, San Francisco before Magistrate Judge Laurel Beeler. Responses due by 10/24/2017. Replies due by 10/31/2017. (Attachments: # 1 Proposed Order, # 2 Proposed Amici Curiae Brief)(Hacker, David) (Filed on 10/10/2017) (Entered: 10/10/2017)
97 REPLY (re 84 First MOTION for Temporary Restraining Order ) filed byAmerican Civil Liberties Union of Northern California. (Amiri, Brigitte) (Filed on 10/10/2017) (Entered: 10/10/2017)
98 REPLY (re 82 Second MOTION to Amend/Correct Plaintiff's Complaint ) filed byAmerican Civil Liberties Union of Northern California. (Amiri, Brigitte) (Filed on

Case: 3:16-cv-3539 As of: 03/17/2020 11:17 AM PDT 14 of 17

10/10/2017 10/10/2017

10/10/2017) (Entered: 10/10/2017)
99 OBJECTIONS to re 96 MOTION to File Amicus Curiae Brief by American Civil Liberties Union of Northern California. (Amiri, Brigitte) (Filed on 10/10/2017) (Entered: 10/10/2017)
100 CLERK'S NOTICE Allowing Parties to Appear Telephonically: The court authorized the parties to appear by phone at the end of Friday's scheduling conference for the hearing on Wednesday, 10/11/2017 at 9:30 AM. Parties may make arrangements to appear through CourtCall.

10/11/2017

(This is a text−only entry generated by the court. There is no document associated with this entry.) (tmiS, COURT STAFF) (Filed on 10/10/2017) (Entered: 10/10/2017)
101 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Motion Hearing held on 10/11/2017 re 84 First MOTION for Temporary Restraining Order and 82 Second MOTION to Amend/Correct. Motions taken under submission. Court to issue order.

10/11/2017

FTR Time: 9:30−10:09. Total Time: 39 minutes. Plaintiffs' Attorneys (by phone): Bridgitte Amiri, Jennifer Chou, Melissa Goodman, and Mishan Wroe. Defendants' Attorneys (by phone): Peter Phipps and Alex Haas. Also appearing (by phone): Robert Dunn, David Hacker, and Kyle Hawkins (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Date Filed: 10/11/2017) (Entered: 10/11/2017)
102 ORDER denying 82 Motion to Amend/Correct; finding as moot 83 Motion to Certify Class; denying 84 Motion for TRO; granting 96 Motion to File Amicus Curiae Brief.

In the attached order, the court denies the motion for leave to amend and denies the motion for a TRO without prejudice to Jane Doe's asserting it in a different lawsuit. This disposes of ECF Nos. 82 and 84. The court denies the motion for class certification at ECF No. 83 as moot. The court grants the motion at ECF No. 96 for leave to file an amicus brief.

10/12/2017
10/13/2017 11/01/2017 11/01/2017 11/02/2017 11/02/2017

(Beeler, Laurel) (Filed on 10/11/2017) (Entered: 10/11/2017)
103 Consent Administrative Motion to File Under Seal filed by Sylvia Mathews Burwell, Robert Carey, Mark Greenberg. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Exhibit to be placed under seal)(Tomlinson, Martin) (Filed on 10/12/2017) (Entered: 10/12/2017)
104 Order by Magistrate Judge Laurel Beeler granting 103 Administrative Motion to File Under Seal. (ejkS, COURT STAFF) (Filed on 10/13/2017) (Entered: 10/13/2017)
105 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−11842840.) filed by American Civil Liberties Union of Northern California. (Burrows, Meagan) (Filed on 11/1/2017) (Entered: 11/01/2017)
106 Order by Magistrate Judge Laurel Beeler granting 105 Motion for Pro Hac Vice. Meagan Burrows representing Plaintiff ACLU of Northern California. (ejkS, COURT STAFF) (Filed on 11/1/2017) (Entered: 11/01/2017)
107 STIPULATION WITH PROPOSED ORDER Setting Date for Filing of New Briefing Schedule and Discovery Cutoff filed by Sylvia Mathews Burwell, Robert Carey, Mark Greenberg. (Tomlinson, Martin) (Filed on 11/2/2017) (Entered: 11/02/2017)
108 ORDER granting 107 Stipulation.

The court grants the stipulated order requiring the parties to agree on a new schedule or file their separate proposals by 11/8/2017. If the parties do not agree, the court asks the parties submit their differences in a joint statement with a chart with columns

Case: 3:16-cv-3539 As of: 03/17/2020 11:17 AM PDT 15 of 17

reflecting the parties' different positions. If the parties agree, the court asks that they submit their proposed scheduling order in chart form too. (The court's initial scheduling order shows the format of its scheduling chart.)

11/08/2017 11/08/2017

(This is a text−only entry generated by the court. There is no document associated with this entry.) (Beeler, Laurel) (Filed on 11/2/2017) (Entered: 11/02/2017)
109 STIPULATION WITH PROPOSED ORDER Proposing Dates for New Briefing Schedule and Discovery Cutoff filed by Sylvia Mathews Burwell, Robert Carey, Mark Greenberg. (Tomlinson, Martin) (Filed on 11/8/2017) (Entered: 11/08/2017)
Motions terminated: 109 STIPULATION WITH PROPOSED ORDER Proposing Dates for New Briefing Schedule and Discovery Cutoff filed by Sylvia Mathews Burwell, Robert Carey, Mark Greenberg. Further Case Management Conference set for 5/3/2018 11:00 AM in Courtroom C, 15th Floor, San Francisco.

The court adopts the parties' stipulated schedule, except that it sets the due date for the final reply brief for 4/12/2017 (a Thursday) instead of 4/13/2018 (a Friday). The schedule thus is as follows.

Close of fact discovery: 12/22/2017. Plaintiff's summary−judgment motion due: 1/22/2018. Government/Intervenor summary−judgment motion/opposition due: 2/22/2018. Plaintiff's opposition/reply due: 3/22/2018. Government/intervenor reply due: 4/12/2018.

Hearing: 5/3/2018 at 9:30 a.m.

As a calendaring device, the court sets a further case−management conference for 5/3/2018 at 11:00 a.m. When the parties file the motions, they must notice them for that day at 9:30 a.m.

01/05/2018 01/08/2018

(This is a text−only entry generated by the court. There is no document associated with this entry.) (Beeler, Laurel) (Filed on 11/8/2017) (Entered: 11/08/2017)
110 STIPULATION WITH PROPOSED ORDER Partially Extending Discovery Cutoff and Modifying Briefing Schedule filed by Sylvia Mathews Burwell, Robert Carey, Mark Greenberg. (Phipps, Peter) (Filed on 1/5/2018) (Entered: 01/05/2018)
111 Order by Magistrate Judge Laurel Beeler granting 110 Stipulation Partially Extending Discovery Cutoff and Modifying Briefing Schedule.

Supplemental Discovery Responses(through 12/22/2017): 01/31/2018. Plaintiff's summary−judgment motion due: 03/20/2018. Government/Intervenor summary−judgment motion/opposition due: 04/19/2018. Plaintiff's opposition/reply due: 05/18/2018. Government/Intervenor reply due: 06/15/2018.

02/07/2018
02/09/2018 03/09/2018 03/12/2018

Further Case Management Conference set for 7/5/2018 11:00 AM in Courtroom C, 15th Floor, San Francisco. Case Management Statement due by 6/28/2018. (ejkS, COURT STAFF) (Filed on 1/8/2018) (Entered: 01/08/2018)
112 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−12093954.) filed by United States Conference of Catholic Bishops. (Spencer, Jacob) (Filed on 2/7/2018) (Entered: 02/07/2018)
113 Order by Magistrate Judge Laurel Beeler granting 112 Motion for Pro Hac Vice. (ejkS, COURT STAFF) (Filed on 2/9/2018) (Entered: 02/12/2018)
114 STIPULATION WITH PROPOSED ORDER re 111 Order on Stipulation,, filed by Sylvia Mathews Burwell. (Phipps, Peter) (Filed on 3/9/2018) (Entered: 03/09/2018)
115 Order by Magistrate Judge Laurel Beeler granting 114 Stipulation Modifying Briefing Schedule.

Plaintiff's summary−judgment motion due: 04/20/2018. Government/Intervenor summary−judgment motion/opposition due: 05/22/2018.

Case: 3:16-cv-3539 As of: 03/17/2020 11:17 AM PDT 16 of 17

Plaintiff's opposition/reply due: 06/20/2018. Government/Intervenor reply due: 07/20/2018.

04/20/2018
04/24/2018 05/18/2018 05/21/2018

Further Case Management Conference set for 9/13/2018 at 11:00 AM in San Francisco, Courtroom C, 15th Floor. Case Management Statement due by 9/6/2018. (ejkS, COURT STAFF) (Filed on 3/12/2018) (Entered: 03/14/2018)
116 MOTION for Summary Judgment and Memorandum in Support filed by American Civil Liberties Union of Northern California. Motion Hearing set for 8/9/2018 09:30 AM in San Francisco, Courtroom C, 15th Floor before Magistrate Judge Laurel Beeler. Responses due by 5/22/2018. Replies due by 6/20/2018. (Attachments: # 1 Declaration of Brigitte Amiri in Support of Plaintiff's Motion for Summary Judgment and Memorandum in Support, # 2 Proposed Order Granting Plaintiff's Motion for Summary Judgment and Memorandum in Support)(Wroe, Mishan) (Filed on 4/20/2018) (Entered: 04/20/2018)
117 ERRATA re 116 MOTION for Summary Judgment and Memorandum in Support by American Civil Liberties Union of Northern California. (Wroe, Mishan) (Filed on 4/24/2018) (Entered: 04/24/2018)
118 STIPULATION WITH PROPOSED ORDER re 111 Order on Stipulation,, filed by Sylvia Mathews Burwell, Robert Carey, Mark Greenberg. (Tomlinson, Martin) (Filed on 5/18/2018) (Entered: 05/18/2018)
119 Order by Magistrate Judge Laurel Beeler granting 118 Stipulation Modifying Briefing Schedule.

05/31/2018 05/31/2018 06/29/2018
07/03/2018 07/03/2018

Plaintiff's summary−judgment motion due: 4/20/2018. Government/Intervenor summary−judgment motion/opposition due: 5/31/2018. Plaintiff's opposition/reply due: 6/29/2018. Government/intervenor reply due: 7/30/2018. (ejkS, COURT STAFF) (Filed on 5/21/2018) (Entered: 05/22/2018)
120 Cross MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment filed by Sylvia Mathews Burwell, Robert Carey, Mark Greenberg. Motion Hearing set for 8/9/2018 09:30 AM in San Francisco, Courtroom C, 15th Floor before Magistrate Judge Laurel Beeler. Responses due by 6/29/2018. Replies due by 7/30/2018. (Attachments: # 1 Exhibit Exhibits)(Tomlinson, Martin) (Filed on 5/31/2018) (Entered: 05/31/2018)
121 MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment filed by United States Conference of Catholic Bishops. Motion Hearing set for 8/9/2018 09:30 AM in San Francisco, Courtroom C, 15th Floor before Magistrate Judge Laurel Beeler. Responses due by 6/29/2018. Replies due by 7/30/2018. (Attachments: # 1 Declaration, # 2 Proposed Order)(Dunn, Robert) (Filed on 5/31/2018) (Entered: 05/31/2018)
122 OPPOSITION/RESPONSE (re 116 MOTION for Summary Judgment and Memorandum in Support, 121 MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment, 120 Cross MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment ) and Reply in Further Support of Plaintiff's Motion for Summary Judgment filed byAmerican Civil Liberties Union of Northern California. (Attachments: # 1 Declaration Declaration of Meagan Burrows in Support of Plaintiff's Opposition)(Wroe, Mishan) (Filed on 6/29/2018) (Entered: 06/29/2018)
123 ERRATA re 122 Opposition/Response to Motion,, by American Civil Liberties Union of Northern California. (Wroe, Mishan) (Filed on 7/3/2018) (Entered: 07/03/2018)
124 OPPOSITION/RESPONSE (re 116 MOTION for Summary Judgment and Memorandum in Support, 121 MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment, 120 Cross MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment ) and Reply in Further Support of Plaintiff's Motion for Summary Judgment filed byAmerican Civil Liberties Union of Northern California. (Attachments: # 1 Declaration of Meagan Burrows in Support of Plaintiff's Opposition, # 2 Exhibit A to Burrows Declaration)(Wroe, Mishan) (Filed on 7/3/2018) (Entered: 07/03/2018)

Case: 3:16-cv-3539 As of: 03/17/2020 11:17 AM PDT 17 of 17

07/30/2018 07/30/2018 08/01/2018
08/22/2018

125 REPLY (re 120 Cross MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment ) filed bySylvia Mathews Burwell, Robert Carey, Mark Greenberg. (Tomlinson, Martin) (Filed on 7/30/2018) (Entered: 07/30/2018)
126 REPLY (re 121 MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment ) filed byUnited States Conference of Catholic Bishops. (Dunn, Robert) (Filed on 7/30/2018) (Entered: 07/30/2018)
CLERK'S NOTICE CONTINUING MOTION HEARING. Based on the court's own schedule, the court continues the hearing on the parties' motions for summary judgment by two weeks to 8/23/2018 at 9:30 a.m. (This is a text−only entry generated by the court. There is no document associated with this entry.) (lblc1S, COURT STAFF) (Filed on 8/1/2018) (Entered: 08/01/2018)
Motion Hearing set for 8/23/2018 11:30 AM in San Francisco, Courtroom C, 15th Floor before Magistrate Judge Laurel Beeler.

The court apologizes for the late notice but has closing arguments in a trial tomorrow morning. The court thus changes the start time for the motions hearing from 9:30 a.m. to 11:30 a.m.

08/23/2018

(This is a text−only entry generated by the court. There is no document associated with this entry.) (Beeler, Laurel) (Filed on 8/22/2018) (Entered: 08/22/2018)
127 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Motion Hearing held on 8/23/2018. Court will issue order.

Total Time in Court: 56 minutes. FTR Time: 12:39−12:41, 1:16−2:10.

08/27/2018 08/27/2018 08/27/2018
10/11/2018

Plaintiff's Attorneys: Brigitte Amiri, Meagan Burrows and Mishran Wroe. Defendants' Attorney: Martin Tomlinson. Also appearing: Robert Dunn. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Date Filed: 8/23/2018) (Entered: 08/23/2018)
128 PDF with attached Audio File. Court Date & Time [ 8/23/2018 12:39:56 PM ]. File Size [ 672 KB ]. Run Time [ 00:01:24 ]. (courtspeak). (Entered: 08/27/2018)
129 PDF with attached Audio File. Court Date & Time [ 8/23/2018 1:16:57 PM ]. File Size [ 25736 KB ]. Run Time [ 00:53:37 ]. (courtspeak). (Entered: 08/27/2018)
130 CLERK'S NOTICE RESETTING CASE MANAGEMENT CONFERENCE. The 9/13/2018 case management conference is reset to 11/1/2018 at 11:00 a.m. Joint case management statement due 10/25/2018. (This is a text−only entry generated by the court. There is no document associated with this entry.) (lblc1S, COURT STAFF) (Filed on 8/27/2018) (Entered: 08/27/2018)
131 ORDER by Judge Laurel Beeler denying 116 Motion for Summary Judgment; granting 120 Motion for Summary Judgment; granting 121 Motion for Summary Judgment.

10/11/2018 10/24/2018
11/16/2018

As set forth in the attached order, the court denies the ACLU's motion for summary judgment and grants the defendants' cross−motions for summary judgment. (lblc1S, COURT STAFF) (Filed on 10/11/2018) (Entered: 10/11/2018)
132 JUDGMENT in favor of defendants. Signed by Judge Laurel Beeler on October 11, 2018. (lblc1S, COURT STAFF) (Filed on 10/11/2018) (Entered: 10/11/2018)
133 BILL OF COSTS by United States Conference of Catholic Bishops. Objections due by 11/7/2018. (Attachments: # 1 Declaration Declaration of Robert Dunn, # 2 Exhibit Exhibit A to Declaration of Robert Dunn)(Dunn, Robert) (Filed on 10/24/2018) (Entered: 10/24/2018)
134 Costs Taxed in amount of $3,804.25 Re: 133 Bill of Costs against Plaintiff American Civil Liberties Union of Northern California. (mklS, COURT STAFF) (Filed on 11/16/2018) (Entered: 11/16/2018)