U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:18−cv−00378−APM

TYPE−E

MAROUF et al v. AZAR et al Assigned to: Judge Amit P. Mehta Cause: 28:1331 Fed. Question
Plaintiff FATMA MAROUF

Date Filed: 02/20/2018 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant
represented by Jennifer A Fleury HOGAN LOVELLS US LLP 555 Thirteenth St. N.W. Washington, DC 20004 (202) 637−3644 Fax: (202) 637−5910 Email: jennifer.fleury@hoganlovells.com TERMINATED: 01/02/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alali Dagogo−Jack HOGAN LOVELLS US LLP 4085 Campbell Avenue Suite 100 Menlo Park, CA 94025 (650) 463−4070 Fax: (650) 463−4199 TERMINATED: 06/05/2019 PRO HAC VICE
Ann Stanton HOGAN LOVELLS US LLP 1601 Wewatta Street Suite 900 Denver, CO 80202 (303) 454−2478 Email: ann.stanton@hoganlovells.com TERMINATED: 01/02/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Brendan C. Quinn HOGAN LOVELLS US LLP 555 Thirteenth St, NW Washington, DC 20004 202−637−5600 Email: brendan.quinn@hoganlovells.com ATTORNEY TO BE NOTICED
Camilla B. Taylor LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 105 West Adams Street Suite 2600 Chicago, IL 60603 (312) 663−4413 ext. 325 Fax: (312) 663−4307 Email: ctaylor@lambdalegal.org PRO HAC VICE ATTORNEY TO BE NOTICED

Daryl Lian Kleiman HOGAN LOVELLS US LLP 875 Third Avenue New York, NY 10022 (212) 918−3728 Email: daryl.kleiman@hoganlovells.com TERMINATED: 01/11/2019
Heaven Chanel Chin Chee HOGAN LOVELLS US LLP 609 Main Street Suite 4200 Houston, TX 77002 (713) 632−1427 Email: hchee@foley.com TERMINATED: 01/22/2019 PRO HAC VICE
James Anthony Huang HOGAN LOVELLS US LLP 555 Thirteenth St. N.W. Washington, DC 20004 (202) 637−3696 Fax: 202−637−5910 Email: james.huang@hoganlovells.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jamie Avra Gliksberg LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 105 West Adams Street Suite 2600 Chicago, IL 60603 (312) 663−4413 ext. 324 Fax: (312) 663−4307 Email: jgliksberg@lambdalegal.org PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth Y. Choe HOGAN LOVELLS US LLP 555 13th Street N.W. Washington, DC 20004 202−637−5675 Email: ken.choe@hoganlovells.com ATTORNEY TO BE NOTICED
Kenneth Dale Upton AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE Legal Department 1310 L Street, NW Suite 200 Washington, DC 20005 (202) 898−2133 Fax: (202) 466−3353 Email: upton@au.org PRO HAC VICE ATTORNEY TO BE NOTICED
Michael David Gendall HOGAN LOVELLS US LLP

Plaintiff BRYN ESPLIN

555 Thirteenth Street, NW Washington, DC 20004 202−637−6458 Fax: 202−637−5910 Email: mike.gendall@hoganlovells.com ATTORNEY TO BE NOTICED
Russell Welch HOGAN LOVELLS US LLP 609 Main Street Suite 4200 Houston, TX 77002 713−632−1437 Email: russell.welch@hoganlovells.com ATTORNEY TO BE NOTICED
Jessica Lynn Ellsworth HOGAN LOVELLS US LLP 555 13th Street NW Washington, DC 20004 (202) 637−5886 Fax: (202) 637−5910 Email: jessica.ellsworth@hoganlovells.com ATTORNEY TO BE NOTICED
represented by Jennifer A Fleury (See above for address) TERMINATED: 01/02/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alali Dagogo−Jack (See above for address) TERMINATED: 06/05/2019 PRO HAC VICE
Ann Stanton (See above for address) TERMINATED: 01/02/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Brendan C. Quinn (See above for address) ATTORNEY TO BE NOTICED
Camilla B. Taylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daryl Lian Kleiman (See above for address) TERMINATED: 01/11/2019
Heaven Chanel Chin Chee (See above for address) TERMINATED: 01/22/2019 PRO HAC VICE
James Anthony Huang (See above for address) PRO HAC VICE

Plaintiff NATIONAL LGBT BAR ASSOCIATION a non−profit membership organization TERMINATED: 06/12/2019
V. Defendant ALEX M. AZAR, II in his official capacity as Secretary of the

ATTORNEY TO BE NOTICED
Jamie Avra Gliksberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth Y. Choe (See above for address) ATTORNEY TO BE NOTICED
Kenneth Dale Upton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael David Gendall (See above for address) ATTORNEY TO BE NOTICED
Russell Welch (See above for address) ATTORNEY TO BE NOTICED
Jessica Lynn Ellsworth (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer A Fleury (See above for address) TERMINATED: 01/02/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ann Stanton (See above for address) TERMINATED: 01/02/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Daryl Lian Kleiman (See above for address) TERMINATED: 01/11/2019
Heaven Chanel Chin Chee (See above for address) TERMINATED: 01/22/2019 PRO HAC VICE
Kenneth Y. Choe (See above for address) ATTORNEY TO BE NOTICED
Jessica Lynn Ellsworth (See above for address) ATTORNEY TO BE NOTICED
represented by James R. Powers U.S. DEPARTMENT OF JUSTICE

United States Department of Health and Human Services
Defendant UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES
Defendant STEVEN W. WAGNER in his official capacity as Acting Assistant Secretary for the Administration for Children and Families
Defendant ADMINISTRATION FOR CHILDREN AND FAMILIES
Defendant SCOTT LLOYD in his official capacity as Director of the Office of Refugee Resettlement
Defendant U.S. OFFICE OF REFUGEE RESETTLEMENT

Federal Programs Branch, Civil Division 1100 L Street NW Room 11218 Washington, DC 20005 (202) 353−0543 Fax: (202) 616−8470 Email: james.r.powers@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason C. Lynch U.S. DEPARTMENT OF JUSTICE Federal Programs Branch 1100 L Street NW Washington, DC 20005 202−514−1359 Email: Jason.Lynch@usdoj.gov ATTORNEY TO BE NOTICED
represented by James R. Powers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason C. Lynch (See above for address) ATTORNEY TO BE NOTICED
represented by James R. Powers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason C. Lynch (See above for address) ATTORNEY TO BE NOTICED
represented by James R. Powers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason C. Lynch (See above for address) ATTORNEY TO BE NOTICED
represented by James R. Powers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason C. Lynch (See above for address) ATTORNEY TO BE NOTICED
represented by James R. Powers (See above for address)

Defendant
UNITED STATES CONFERENCE OF CATHOLIC BISHOPS a non−profit corporation

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason C. Lynch (See above for address) ATTORNEY TO BE NOTICED
represented by Anthony J. Dick JONES DAY 51 Louisiana Avenue, NW Washington, DC 20001 (703) 909−8111 Email: ajdick@jonesday.com PRO HAC VICE ATTORNEY TO BE NOTICED
David Timothy Raimer JONES DAY 51 Louisiana Avenue, NW Washington, DC 20001 (202) 879−3939 Fax: (202) 626−1700 Email: dtraimer@jonesday.com ATTORNEY TO BE NOTICED
John D. Goetz JONES DAY One Mellon Bank Center 500 Grant Street Suite 4500 Pittsburgh, PA 15219 (412) 391−3939 Fax: (412) 394−7959 Email: jdgoetz@JonesDay.com PRO HAC VICE ATTORNEY TO BE NOTICED
Leon F. DeJulius , Jr. JONES DAY One Mellon Bank Center 500 Grant Street Suite 4500 Pittsburgh, PA 15219 (412) 391−3939 Fax: (412) 394−7959 Email: lfdejulius@JonesDay.com PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 02/20/2018
02/20/2018 02/20/2018

# Docket Text
1 COMPLAINT against ALL DEFENDANTS ( Filing fee $ 400 receipt number 0090−5338574) filed by FATMA MAROUF, BRYN ESPLIN. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons, # 9 Summons, # 10 Summons)(Ellsworth, Jessica) (Entered: 02/20/2018)
2 NOTICE of Appearance by Jessica Lynn Ellsworth on behalf of All Plaintiffs (Ellsworth, Jessica) (Entered: 02/20/2018)
3 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Kenneth Dale Upton, Jr., :Firm− Lambda Legal Defense and Education Fund, Inc., :Address− 3500 Oak Lawn Avenue Suite 500 Dallas, TX 75219−6722. Phone No. − 214−302−2218. Fax

02/20/2018 02/20/2018 02/20/2018 02/20/2018 02/20/2018 02/20/2018 02/20/2018 02/20/2018 02/23/2018 02/25/2018

No. − 214−219−4455 Filing fee $ 100, receipt number 0090−5339076. Fee Status: Fee Paid. by BRYN ESPLIN, FATMA MAROUF (Attachments: # 1 Declaration of Kenneth Dale Upton, Jr., # 2 Text of Proposed Order, # 3 Certificate of Service)(Ellsworth, Jessica) (Entered: 02/20/2018)
4 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Jamie Avra Gilksberg, :Firm− Lambda Legal Defense and Education Fund, Inc., :Address− 105 West Adams Street, Suite 2600, Chicago, IL 60603. Phone No. − 312−663−4413 ext. 324. Fax No. − 312−663−4307 Filing fee $ 100, receipt number 0090−5339127. Fee Status: Fee Paid. by BRYN ESPLIN, FATMA MAROUF (Attachments: # 1 Declaration of Jamie Avra Gilksberg, # 2 Text of Proposed Order, # 3 Certificate of Service)(Ellsworth, Jessica) (Entered: 02/20/2018)
5 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Camilla B. Taylor, :Firm− Lambda Legal Defense and Education Fund, Inc., :Address− 105 West Adams Street, Suite 2600, Chicago, IL 60603. Phone No. − 312−663−4413 ext. 325. Fax No. − 312−663−4307 Filing fee $ 100, receipt number 0090−5339153. Fee Status: Fee Paid. by BRYN ESPLIN, FATMA MAROUF (Attachments: # 1 Declaration of Camilla B. Taylor, # 2 Text of Proposed Order, # 3 Certificate of Service)(Ellsworth, Jessica) (Entered: 02/20/2018)
6 ENTERED IN ERROR. . . . . MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Kenneth Y. Choe, :Firm− Hogan Lovells US LLP, :Address− 555 Thirteenth Street, N.W., Washington, D.C. 20004. Phone No. − 202−637−5675. Fax No. − 202−637−5910 Filing fee $ 100, receipt number 0090−5339170. Fee Status: Fee Paid. by BRYN ESPLIN, FATMA MAROUF (Attachments: # 1 Declaration of Kenneth Y. Choe, # 2 Text of Proposed Order, # 3 Certificate of Service)(Ellsworth, Jessica) Modified on 2/20/2018 (td). (Entered: 02/20/2018)
7 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− James Anthony Huang, :Firm− Hogan Lovells US LLP, :Address− 555 Thirteenth Street, N.W., Washington, D.C. 20004. Phone No. − 202−637−3696. Fax No. − 202−637−5910 Filing fee $ 100, receipt number 0090−5339192. Fee Status: Fee Paid. by BRYN ESPLIN, FATMA MAROUF (Attachments: # 1 Declaration of James Anthony Huang, # 2 Text of Proposed Order, # 3 Certificate of Service)(Ellsworth, Jessica) (Entered: 02/20/2018)
8 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Alali Dagogo−Jack, :Firm− Hogan Lovells US LLP, :Address− 4085 Campbell Avenue, Suite 100, Menlo Park, CA 94025. Phone No. − 650−463−4070. Fax No. − 650−463−4199 Filing fee $ 100, receipt number 0090−5339215. Fee Status: Fee Paid. by BRYN ESPLIN, FATMA MAROUF (Attachments: # 1 Declaration of Alali Dagogo−Jack, # 2 Text of Proposed Order, # 3 Certificate of Service)(Ellsworth, Jessica) (Entered: 02/20/2018)
NOTICE OF CORRECTED DOCKET ENTRY: re 6 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Kenneth Y. Choe, :Firm− Hogan Lovells US LLP, :Address− 555 Thirteenth Street, N.W., Washington, D.C. 20004. Phone No. − 202−637−5675. Fax No. − 202−637−5910 Filing fee $ 10 was entered in error and counsel was instructed to refile said pleading. (td) (Entered: 02/20/2018)
9 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Kenneth Y. Choe, :Firm− Hogan Lovells US LLP, :Address− 555 Thirteenth Street, N.W., Washington, D.C. 20004. Phone No. − 202−637−5675. Fax No. − 202−637−5910 Filing fee $ 100, receipt number 0090−5339257. Fee Status: Fee Paid. by BRYN ESPLIN, FATMA MAROUF (Attachments: # 1 Declaration of Kenneth Y. Choe, # 2 Text of Proposed Order, # 3 Certificate of Service)(Ellsworth, Jessica) (Entered: 02/20/2018)
Case Assigned to Judge Amit P. Mehta. (zmd) (Entered: 02/23/2018)
10 SUMMONS (9) Issued Electronically as to ADMINISTRATION FOR CHILDREN AND FAMILIES, ALEX M. AZAR, II, SCOTT LLOYD, OFFICE OF REFUGEE RESETTLEMENT, UNITED STATES CONFERENCE OF CATHOLIC BISHOPS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, STEVEN W. WAGNER, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice and Consent) (zmd) (Entered: 02/23/2018)
MINUTE ORDER granting 3 Motion for Leave to Appear Pro Hac Vice. Attorney Kenneth Dale Upton, Jr., is hereby admitted pro hac vice to appear in this matter.

02/25/2018 02/25/2018 02/25/2018 02/25/2018 02/25/2018 03/15/2018
03/20/2018
03/20/2018 03/20/2018 03/20/2018 03/20/2018 03/20/2018 03/20/2018 03/20/2018 03/20/2018 03/22/2018

Signed by Judge Amit P. Mehta on 02/25/2018. (lcapm1) (Entered: 02/25/2018)
MINUTE ORDER granting 4 Motion for Leave to Appear Pro Hac Vice. Attorney Jamie Avra Gilksberg is hereby admitted pro hac vice to appear in this matter. Signed by Judge Amit P. Mehta on 02/25/2018. (lcapm1) (Entered: 02/25/2018)
MINUTE ORDER granting 5 Motion for Leave to Appear Pro Hac Vice. Attorney Camilla B. Taylor is hereby admitted pro hac vice to appear in this matter. Signed by Judge Amit P. Mehta on 02/25/2018. (lcapm1) (Entered: 02/25/2018)
MINUTE ORDER granting 7 Motion for Leave to Appear Pro Hac Vice. Attorney James Anthony Huang is hereby admitted pro hac vice to appear in this matter. Signed by Judge Amit P. Mehta on 02/25/2018. (lcapm1) (Entered: 02/25/2018)
MINUTE ORDER granting 8 Motion for Leave to Appear Pro Hac Vice. Attorney Alali Dagogo−Jack is hereby admitted pro hac vice to appear in this matter. Signed by Judge Amit P. Mehta on 02/25/2018. (lcapm1) (Entered: 02/25/2018)
MINUTE ORDER granting 9 Motion for Leave to Appear Pro Hac Vice. Attorney Kenneth Y. Choe is hereby admitted pro hac vice to appear in this matter. Signed by Judge Amit P. Mehta on 02/25/2018. (lcapm1) (Entered: 02/25/2018)
11 ERRATA by BRYN ESPLIN, FATMA MAROUF 4 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Jamie Avra Gilksberg, :Firm− Lambda Legal Defense and Education Fund, Inc., :Address− 105 West Adams Street, Suite 2600, Chicago, IL 60603. Phone No. − 312−663−4413 ext. 324. Fax No. − 31 filed by FATMA MAROUF, BRYN ESPLIN. (Attachments: # 1 Motion for Admission Pro Hac Vice, # 2 Declaration, # 3 Text of Proposed Order)(Ellsworth, Jessica) (Entered: 03/15/2018)
12 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 3/6/2018. Answer due for ALL FEDERAL DEFENDANTS by 5/5/2018. (Ellsworth, Jessica) (Entered: 03/20/2018)
13 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 03/06/2018. (Ellsworth, Jessica) (Entered: 03/20/2018)
14 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. ALEX M. AZAR, II served on 3/1/2018 (Ellsworth, Jessica) (Entered: 03/20/2018)
15 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 3/5/2018 (Ellsworth, Jessica) (Entered: 03/20/2018)
16 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. STEVEN W. WAGNER served on 3/6/2018 (Ellsworth, Jessica) (Entered: 03/20/2018)
17 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. ADMINISTRATION FOR CHILDREN AND FAMILIES served on 3/6/2018 (Ellsworth, Jessica) (Entered: 03/20/2018)
18 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. SCOTT LLOYD served on 3/5/2018 (Ellsworth, Jessica) (Entered: 03/20/2018)
19 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. OFFICE OF REFUGEE RESETTLEMENT served on 3/1/2018 (Ellsworth, Jessica) (Entered: 03/20/2018)
20 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES CONFERENCE OF CATHOLIC BISHOPS served on 3/14/2018, answer due 4/4/2018 (Ellsworth, Jessica) (Entered: 03/20/2018)
21 AMENDED COMPLAINT against All Defendants filed by BRYN ESPLIN, FATMA MAROUF, NATIONAL LGBT BAR ASSOCIATION. (Attachments: # 1 Certificate of Service)(Ellsworth, Jessica) (Entered: 03/22/2018)

03/26/2018 03/26/2018
03/26/2018
03/26/2018 03/27/2018 03/27/2018
03/27/2018 03/28/2018 03/28/2018 03/28/2018
03/29/2018 04/02/2018 04/02/2018 05/04/2018

22 NOTICE of Appearance of David Timothy Raimer by UNITED STATES CONFERENCE OF CATHOLIC BISHOPS (Raimer, David) Modified event on 3/27/2018 (znmw). (Main Document 22 replaced on 3/27/2018) (znmw). (Entered: 03/26/2018)
23 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− John D. Goetz, :Firm− Jones Day, :Address− 500 Grant Street, Suite 4500, Pittsburgh, PA 15219. Phone No. − 412−391−3939. Fax No. − 412−394−7959 Fee Status: No Fee Paid. by UNITED STATES CONFERENCE OF CATHOLIC BISHOPS (Raimer, David) (Entered: 03/26/2018)
24 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Leon F. DeJulius, Jr., :Firm− Jones Day, :Address− 500 Grant Street, Suite 4500, Pittsburgh, PA 15219. Phone No. − 412−391−3939. Fax No. − 412−394−7959 Fee Status: No Fee Paid. by UNITED STATES CONFERENCE OF CATHOLIC BISHOPS (Raimer, David) (Entered: 03/26/2018)
25 Unopposed MOTION for Extension of Time to File Response/Reply to Amended Complaint by UNITED STATES CONFERENCE OF CATHOLIC BISHOPS (Raimer, David) (Entered: 03/26/2018)
MINUTE ORDER granting 22 Motion for Leave to Appear. David T. Raimer has hereby entered an appearance in this matter. Signed by Judge Amit P. Mehta on 03/27/2018. (lcapm1) (Entered: 03/27/2018)
MINUTE ORDER granting Defendant United States Conference of Catholic Bishops' 25 Unopposed Motion for Extension of Time to Respond to Amended Complaint. Defendant United States Conference of Catholic Bishops shall respond to Plaintiffs' Amended Complaint no later than May 7, 2018. Signed by Judge Amit P. Mehta on 03/27/2018. (lcapm1) (Entered: 03/27/2018)
Set/Reset Deadlines/Hearings: Defendant United States Conference of Catholic Bishops' answer to Amended Complaint due by 5/7/2018. (zcdw) (Entered: 03/27/2018)
26 NOTICE of Appearance by UNITED STATES CONFERENCE OF CATHOLIC BISHOPS (Attachments: # 1 Certificate of Service)(Dick, Anthony) Modified event title on 3/29/2018 (znmw). (Entered: 03/28/2018)
MINUTE ORDER granting 26 Motion for Leave to Appear. Anthony J. Dick has hereby entered an appearance in this matter. Signed by Judge Amit P. Mehta on 03/28/2018. (lcapm1) (Entered: 03/28/2018)
MINUTE ORDER. Before the court considers the 23 and 24 Motions for Leave to Appear Pro Hac Vice, the movants must each pay the $100 fee required under Local Civil Rule 83.2(d). If the movants fail to pay these fees by April 4, 2018, the court will deny the pro hac vice motions. Signed by Judge Amit P. Mehta on 03/28/2018. (lcapm1) (Entered: 03/28/2018)
Filing fee received: $ 200.00, receipt number: 4616090271 re 23 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− John D. Goetz and 24 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Leon F. DeJulius, Jr., (jf) (Entered: 04/02/2018)
MINUTE ORDER granting 23 Motion for Leave to Appear Pro Hac Vice. Attorney John D. Goetz is hereby admitted pro hac vice to appear in this matter. Signed by Judge Amit P. Mehta on 04/02/2018. (lcapm1) (Entered: 04/02/2018)
MINUTE ORDER granting 24 Motion for Leave to Appear Pro Hac Vice. Attorney Leon F. DeJulius, Jr. is hereby admitted pro hac vice to appear in this matter. Signed by Judge Amit P. Mehta on 04/02/2018. (lcapm1) (Entered: 04/02/2018)
27 Unopposed MOTION for Extension of Time to Respond to the Amended Complaint by ADMINISTRATION FOR CHILDREN AND FAMILIES, ALEX M. AZAR, II, SCOTT LLOYD, OFFICE OF REFUGEE RESETTLEMENT, UNITED STATES CONFERENCE OF CATHOLIC BISHOPS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, STEVEN W. WAGNER (Attachments: # 1 Text of Proposed Order)(Powers, James) (Entered: 05/04/2018)

05/04/2018 05/04/2018 05/21/2018
05/21/2018 05/31/2018
05/31/2018
05/31/2018
05/31/2018 05/31/2018 05/31/2018
05/31/2018 06/18/2018 06/18/2018 07/09/2018

MINUTE ORDER granting Defendants' 27 Unopposed Motion for Extension of Time. The deadline for Defendants to respond to Plaintiffs' 21 Amended Complaint is hereby extended to May 21, 2018. Signed by Judge Amit P. Mehta on 05/04/2018. (lcapm1) (Entered: 05/04/2018)
Set/Reset Deadlines/Hearings: Answer to amended complaint due by 5/21/2018. (zcdw) (Entered: 05/06/2018)
28 MOTION to Dismiss for Lack of Jurisdiction by ADMINISTRATION FOR CHILDREN AND FAMILIES, ALEX M. AZAR, II, SCOTT LLOYD, OFFICE OF REFUGEE RESETTLEMENT, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, STEVEN W. WAGNER (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Powers, James) (Entered: 05/21/2018)
29 MOTION to Dismiss for Lack of Jurisdiction by UNITED STATES CONFERENCE OF CATHOLIC BISHOPS (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Certificate of Service)(Raimer, David) (Entered: 05/21/2018)
30 Joint MOTION for Extension of Time to File Response/Reply as to 28 MOTION to Dismiss for Lack of Jurisdiction , 29 MOTION to Dismiss for Lack of Jurisdiction and Extension of Time for Defendants to File Reply by BRYN ESPLIN, FATMA MAROUF, NATIONAL LGBT BAR ASSOCIATION (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(Ellsworth, Jessica) (Entered: 05/31/2018)
31 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Heaven Chanel Chin Chee, :Firm− Hogan Lovells US LLP, :Address− 609 Main Street, Suite 4200, Houston, Texas 77002. Phone No. − 713−632−1427. Fax No. − 713−632−1401 Filing fee $ 100, receipt number 0090−5510291. Fee Status: Fee Paid. by BRYN ESPLIN, FATMA MAROUF, NATIONAL LGBT BAR ASSOCIATION (Attachments: # 1 Declaration of Heaven Chanel Chin Chee, # 2 Text of Proposed Order, # 3 Certificate of Service)(Ellsworth, Jessica) (Entered: 05/31/2018)
32 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Daryl Lian Kleiman, :Firm− Hogan Lovells US LLP, :Address− 875 Third Avenue, New York, NY 10022. Phone No. − 212−918−3728. Fax No. − 212−918−3100 Filing fee $ 100, receipt number 0090−5510327. Fee Status: Fee Paid. by BRYN ESPLIN, FATMA MAROUF, NATIONAL LGBT BAR ASSOCIATION (Attachments: # 1 Declaration of Daryl Lian Kleiman, # 2 Text of Proposed Order, # 3 Certificate of Service)(Ellsworth, Jessica) (Entered: 05/31/2018)
MINUTE ORDER granting 31 Motion for Leave to Appear Pro Hac Vice. Attorney Heaven Chanel Chin Chee is hereby admitted pro hac vice to appear in this matter. Signed by Judge Amit P. Mehta on 05/31/2018. (lcapm1) (Entered: 05/31/2018)
MINUTE ORDER granting 32 Motion for Leave to Appear Pro Hac Vice. Attorney Daryl Lian Kleiman is hereby admitted pro hac vice to appear in this matter. Signed by Judge Amit P. Mehta on 05/31/2018. (lcapm1) (Entered: 05/31/2018)
MINUTE ORDER granting the parties' 30 Joint Motion for Extensions of Time. Plaintiffs' Consolidated Opposition to Defendants' 28 and 29 Motions to Dismiss shall now be due on or before June 18, 2018, and Defendants' Replies shall be due on or before July 9, 2018. Signed by Judge Amit P. Mehta on 05/31/2018. (lcapm1) (Entered: 05/31/2018)
Set/Reset Deadlines: Plaintiffs' Response due by 6/18/2018. Defendants' Replies due by 7/9/2018. (zjd) (Entered: 06/01/2018)
33 NOTICE of Appearance by Jennifer A Fleury on behalf of All Plaintiffs (Fleury, Jennifer) (Entered: 06/18/2018)
34 Memorandum in opposition to re 28 MOTION to Dismiss for Lack of Jurisdiction , 29 MOTION to Dismiss for Lack of Jurisdiction filed by BRYN ESPLIN, FATMA MAROUF, NATIONAL LGBT BAR ASSOCIATION. (Attachments: # 1 Certificate of Service)(Choe, Kenneth) (Entered: 06/18/2018)
35 REPLY to opposition to motion re 28 MOTION to Dismiss for Lack of Jurisdiction filed by ADMINISTRATION FOR CHILDREN AND FAMILIES, ALEX M. AZAR, II, SCOTT LLOYD, U.S. OFFICE OF REFUGEE RESETTLEMENT, UNITED

07/09/2018 09/24/2018 11/06/2018 11/06/2018 11/29/2018
11/30/2018
12/14/2018 12/14/2018 12/14/2018 01/07/2019
01/08/2019
01/11/2019 01/22/2019 01/30/2019

STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, STEVEN W. WAGNER. (Powers, James) (Entered: 07/09/2018)
36 REPLY to opposition to motion re 29 MOTION to Dismiss for Lack of Jurisdiction filed by UNITED STATES CONFERENCE OF CATHOLIC BISHOPS. (Raimer, David) (Entered: 07/09/2018)
37 NOTICE of Change of Address by James R. Powers (Powers, James) (Entered: 09/24/2018)
MINUTE ORDER setting oral argument regarding 28 and 29 Defendants' Motions to Dismiss for Lack of Jurisdiction for November 30, 2018, at 10:00 a.m. in Courtroom 10 before Judge Mehta. Signed by Judge Amit P. Mehta on 11/06/2018. (lcapm1) (Entered: 11/06/2018)
Set/Reset Hearings: Oral Argument set for 11/30/2018 at 10:00 AM in Courtroom 10 before Judge Amit P. Mehta. (zjd) (Entered: 11/07/2018)
MINUTE ORDER. At the hearing scheduled for November 30, 2018, at 10 a.m. in Courtroom 10 before Judge Amit P. Mehta, the parties shall be prepared to address the recent case, Dumont v. Lyon, No. 17−CV−13080, 2018 WL 4385667 (E.D. Mich. Sept. 14, 2018). Signed by Judge Amit P. Mehta on 11/29/2018. (lcapm1) (Entered: 11/29/2018)
Minute Entry for proceedings held before Judge Amit P. Mehta: Motion Hearing held on 11/30/2018 re 28 MOTION to Dismiss for Lack of Jurisdiction filed by SCOTT LLOYD, U.S. OFFICE OF REFUGEE RESETTLEMENT, ALEX M. AZAR, II, ADMINISTRATION FOR CHILDREN AND FAMILIES, STEVEN W. WAGNER, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, 29 MOTION to Dismiss for Lack of Jurisdiction filed by UNITED STATES CONFERENCE OF CATHOLIC BISHOPS. Oral arguments heard. The parties are to submit a Joint Status report within two weeks of today's Hearing. (Court Reporter Willaim Zaremba) (znbn) (Entered: 11/30/2018)
38 Joint STATUS REPORT in Response to November 30, 2018 Motion Hearing Minute Order by BRYN ESPLIN, FATMA MAROUF, NATIONAL LGBT BAR ASSOCIATION. (Choe, Kenneth) (Entered: 12/14/2018)
MINUTE ORDER. The parties shall file an additional Joint Status Report by January 14, 2019, updating the court on their efforts to resolve this matter. Signed by Judge Amit P. Mehta on 12/14/2018. (lcapm1) (Entered: 12/14/2018)
Set/Reset Deadlines: Joint Status Report due by 1/14/2019. (zjd) (Entered: 12/17/2018)
39 Unopposed MOTION to Stay re Order to File Joint Status Report by January 14, 2019 in Light of Lapse of Appropriations by ADMINISTRATION FOR CHILDREN AND FAMILIES, ALEX M. AZAR, II, SCOTT LLOYD, U.S. OFFICE OF REFUGEE RESETTLEMENT, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, STEVEN W. WAGNER (Attachments: # 1 Text of Proposed Order)(Powers, James) (Entered: 01/07/2019)
MINUTE ORDER granting 39 Defendants' Motion for a Stay of Proceedings. This matter is hereby stayed. Within three business days of Department of Justice operations resuming, Defendants shall notify the court by when the parties will file their Joint Status Report. Signed by Judge Amit P. Mehta on 01/08/2019. (lcapm1) (Entered: 01/08/2019)
40 NOTICE OF WITHDRAWAL OF APPEARANCE as to BRYN ESPLIN, FATMA MAROUF, NATIONAL LGBT BAR ASSOCIATION. Attorney Daryl Lian Kleiman terminated. (Kleiman, Daryl) (Entered: 01/11/2019)
41 NOTICE OF WITHDRAWAL OF APPEARANCE as to BRYN ESPLIN, FATMA MAROUF, NATIONAL LGBT BAR ASSOCIATION. Attorney Heaven Chanel Chin Chee terminated. (Attachments: # 1 Certificate of Service)(Chee, Heaven) (Entered: 01/22/2019)
42 NOTICE of Restoration of Appropriations by ADMINISTRATION FOR CHILDREN AND FAMILIES, ALEX M. AZAR, II, SCOTT LLOYD, U.S. OFFICE OF

01/30/2019 01/30/2019 01/30/2019 01/31/2019 02/08/2019
02/12/2019
02/13/2019 02/15/2019
05/09/2019
05/09/2019 05/09/2019 05/15/2019 06/05/2019 06/12/2019

REFUGEE RESETTLEMENT, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, STEVEN W. WAGNER re Order on Motion to Stay, (Powers, James) (Entered: 01/30/2019)
MINUTE ORDER. The parties shall file their next Joint Status Report by February 8, 2019. Signed by Judge Amit P. Mehta on 01/30/2019. (lcapm1) (Entered: 01/30/2019)
Set/Reset Deadlines: Joint Status Report due by 2/8/2019. (zjd) (Entered: 02/01/2019)
Set/Reset Deadlines: Joint Status Report due by 2/8/2019. (zjd) (Entered: 02/05/2019)
43 NOTICE of Change of Address by Kenneth Dale Upton (Upton, Kenneth) (Entered: 01/31/2019)
44 Joint STATUS REPORT by ADMINISTRATION FOR CHILDREN AND FAMILIES, ALEX M. AZAR, II, SCOTT LLOYD, U.S. OFFICE OF REFUGEE RESETTLEMENT, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, STEVEN W. WAGNER. (Powers, James) (Entered: 02/08/2019)
45 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Ann Stanton, :Firm− Hogan Lovells US LLP, :Address− 1601 Wewatta Street, Suite 900, Denver, Colorado 80202. Phone No. − 303−454−2478. Fax No. − 303−899−7333 Filing fee $ 100, receipt number 0090−5943725. Fee Status: Fee Paid. by BRYN ESPLIN, FATMA MAROUF, NATIONAL LGBT BAR ASSOCIATION (Attachments: # 1 Declaration of Ann Stanton, # 2 Text of Proposed Order, # 3 Certificate of Service)(Ellsworth, Jessica) (Entered: 02/12/2019)
MINUTE ORDER granting 45 Motion for Leave to Appear Pro Hac Vice. Attorney Ann Stanton is hereby admitted pro hac vice to appear in this matter. Signed by Judge Amit P. Mehta on 02/13/2019. (lcapm1) Modified on 2/13/2019 (lcapm1, ). (Entered: 02/13/2019)
MINUTE ORDER. Because the parties have not yet resolved this matter, the court will proceed with resolving Defendants' Motions to Dismiss. Nevertheless, the court encourages Defendants to continue their efforts to work with Lutheran Immigration and Refugee Services to find an appropriate partner child−placement agency to enable Plaintiffs to serve as foster parents. Signed by Judge Amit P. Mehta on 02/15/2019. (lcapm1) (Entered: 02/15/2019)
46 Unopposed MOTION for Hearing (Status Conference) and Notice by ADMINISTRATION FOR CHILDREN AND FAMILIES, ALEX M. AZAR, II, SCOTT LLOYD, U.S. OFFICE OF REFUGEE RESETTLEMENT, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, STEVEN W. WAGNER (Attachments: # 1 Text of Proposed Order)(Powers, James) (Entered: 05/09/2019)
MINUTE ORDER granting 46 Defendant's Unopposed Motion for Status Conference. The parties shall appear for a Status Conference in this matter on May 15, 2019, at 2:00 PM in Courtroom 10 before Judge Amit P. Mehta. Signed by Judge Amit P. Mehta on 05/09/2019. (lcapm1) (Entered: 05/09/2019)
Set/Reset Hearings: Status Conference set for 5/15/2019 at 2:00 PM in Courtroom 10 before Judge Amit P. Mehta. (zjd) (Entered: 05/10/2019)
Minute Entry for proceedings held before Judge Amit P. Mehta: Status Conference held on 5/15/2019. (Court Reporter: Crystal Pilgrim.) (hmc) (Entered: 05/15/2019)
47 NOTICE OF WITHDRAWAL OF APPEARANCE as to BRYN ESPLIN, FATMA MAROUF, NATIONAL LGBT BAR ASSOCIATION. Attorney Alali Dagogo−Jack terminated. (Choe, Kenneth) (Entered: 06/05/2019)
48 MEMORANDUM OPINION granting in part and denying in part 28 29 Defendants' Motions to Dismiss. Please see the attached Memorandum Opinion for additional details. Signed by Judge Amit P. Mehta on 06/12/2019. (lcapm1) (Entered: 06/12/2019)

06/26/2019
06/26/2019 06/28/2019 06/28/2019 07/01/2019
07/02/2019 08/05/2019 08/21/2019 08/28/2019 08/29/2019 10/17/2019 10/17/2019
10/17/2019 10/31/2019
11/07/2019

49 ANSWER to 21 Amended Complaint by ADMINISTRATION FOR CHILDREN AND FAMILIES, ALEX M. AZAR, II, SCOTT LLOYD, U.S. OFFICE OF REFUGEE RESETTLEMENT, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, STEVEN W. WAGNER.(Powers, James) (Entered: 06/26/2019)
50 ANSWER to 21 Amended Complaint by UNITED STATES CONFERENCE OF CATHOLIC BISHOPS.(Raimer, David) (Entered: 06/26/2019)
51 ORDER setting an Initial Scheduling Conference for August 6, 2019, at 9:30 a.m. in Courtroom 10 before Judge Amit P. Mehta. See the attached Order for additional details. Signed by Judge Amit P. Mehta on 06/28/2019. (lcapm1) (Entered: 06/28/2019)
Set/Reset Deadlines/Hearings: Initial Scheduling Conference set for 8/6/2019 at 9:30 AM in Courtroom 10 before Judge Amit P. Mehta. (zcdw) (Entered: 06/28/2019)
52 Unopposed MOTION to Continue Initial Scheduling Conference by ADMINISTRATION FOR CHILDREN AND FAMILIES, ALEX M. AZAR, II, SCOTT LLOYD, U.S. OFFICE OF REFUGEE RESETTLEMENT, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, STEVEN W. WAGNER (Attachments: # 1 Text of Proposed Order)(Powers, James) (Entered: 07/01/2019)
MINUTE ORDER granting 52 Motion to Continue. Initial Scheduling Conference has been reset to 8/28/2019 at 11:00 AM in Courtroom 10 before Judge Amit P. Mehta. Signed by Judge Amit P. Mehta on 7/2/2019. (zjd) (Entered: 07/02/2019)
53 NOTICE of Appearance by Brendan C. Quinn on behalf of All Plaintiffs (Quinn, Brendan) (Entered: 08/05/2019)
54 MEET AND CONFER STATEMENT. (Attachments: # 1 Text of Proposed Order Proposed Scheduling Order)(Choe, Kenneth) (Entered: 08/21/2019)
Minute Entry for proceedings held before Judge Amit P. Mehta: Initial Scheduling Conference held on 8/28/2019. Notice of Conclusion of Discovery due by 4/24/2020. (Court Reporter: William Zaremba) (zjd) (Entered: 08/29/2019)
55 ORDER setting the following schedule for further proceedings in this matter. See the attached Order for additional details. Signed by Judge Amit P. Mehta on 08/29/2019. (lcapm1) (Main Document 55 replaced on 8/29/2019) (zjd). (Entered: 08/29/2019)
56 Consent MOTION for Extension of Time to Complete Discovery by BRYN ESPLIN, FATMA MAROUF (Attachments: # 1 Certificate of Service, # 2 Text of Proposed Order)(Choe, Kenneth) (Entered: 10/17/2019)
57 NOTICE of Appearance by Jason C. Lynch on behalf of ADMINISTRATION FOR CHILDREN AND FAMILIES, ALEX M. AZAR, II, SCOTT LLOYD, U.S. OFFICE OF REFUGEE RESETTLEMENT, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, STEVEN W. WAGNER (Lynch, Jason) (Entered: 10/17/2019)
58 ORDER granting Parties' 56 Consent Motion for Extension of Time to Complete Discovery. The deadline for service of written discovery requests is hereby set for November 27, 2019. See attached Order for additional details. Signed by Judge Amit P. Mehta on 10/17/2019. (lcapm1) (Entered: 10/17/2019)
59 Joint MOTION for Order Entering Stipulated Protective Order and Stipulated Clawback Agreement and Federal Rule of Evidence 502(d) Order by ADMINISTRATION FOR CHILDREN AND FAMILIES, ALEX M. AZAR, II, SCOTT LLOYD, U.S. OFFICE OF REFUGEE RESETTLEMENT, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, STEVEN W. WAGNER (Attachments: # 1 Text of Proposed Order Stipulated Protective Order, # 2 Text of Proposed Order Stipulated Clawback Agreement)(Powers, James) (Entered: 10/31/2019)
60 ORDER entering Stipulated Protective Order. See attached order for additional details. Signed by Judge Amit P. Mehta on 11/07/2019. (lcapm1) (Entered: 11/07/2019)

11/07/2019 11/15/2019 11/22/2019 11/25/2019 11/25/2019
01/02/2020 01/02/2020 01/07/2020 02/10/2020
02/10/2020
03/03/2020 03/17/2020 03/17/2020

61 ORDER entering Stipulated Clawback Agreement and Federal Rule of Evidence 502(d) Order. See attached order for additional details. Signed by Judge Amit P. Mehta on 11/07/2019. (lcapm1) (Entered: 11/07/2019)
62 Joint STATUS REPORT by BRYN ESPLIN, FATMA MAROUF. (Choe, Kenneth) (Entered: 11/15/2019)
63 Consent MOTION to Modify Discovery Scheduling Order by BRYN ESPLIN, FATMA MAROUF (Attachments: # 1 Certificate of Service, # 2 Text of Proposed Order)(Choe, Kenneth) (Entered: 11/22/2019)
64 ORDER granting 63 Consent Motion for Modification of Scheduling Order. See attached Order for additional details. Signed by Judge Amit P. Mehta on 11/25/2019. (lcapm1) (Entered: 11/25/2019)
Set/Reset Deadlines/Hearings: Fact Discovery shall conclude on 7/10/2020. Plaintiff Rule 26(a)(2) due by 7/24/2020. Defendant Rule 26(a)(2) due by 8/7/2020. Status Report due by 8/4/2020. Expert Discovery shall conclude on 9/4/2020. Dispositive Motions due by 11/4/2020. Post−Discovery Conference set for 9/9/2020 at 10:00 AM in Courtroom 10 before Judge Amit P. Mehta. (zjd) (Entered: 11/26/2019)
65 NOTICE OF WITHDRAWAL OF APPEARANCE as to BRYN ESPLIN, FATMA MAROUF. Attorney Ann Stanton terminated. (Choe, Kenneth) (Entered: 01/02/2020)
66 NOTICE OF WITHDRAWAL OF APPEARANCE as to BRYN ESPLIN, FATMA MAROUF. Attorney Jennifer A Fleury terminated. (Choe, Kenneth) (Entered: 01/02/2020)
67 NOTICE of Appearance by Michael David Gendall on behalf of All Plaintiffs (Gendall, Michael) (Entered: 01/07/2020)
68 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Russell A. Welch, Filing fee $ 100, receipt number ADCDC−6815876. Fee Status: Fee Paid. by BRYN ESPLIN, FATMA MAROUF (Attachments: # 1 Declaration Declaration of Russell A. Welch, # 2 Text of Proposed Order, # 3 Certificate of Service)(Quinn, Brendan) (Entered: 02/10/2020)
MINUTE ORDER granting 68 Motion for Leave to Appear Pro Hac Vice. Attorney Russell A. Welch is admitted pro hac vice and may appear on behalf of Plaintiffs in this case. Counsel should register for e−filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Amit P. Mehta on 2/10/2020. (lcapm1) (Entered: 02/10/2020)
69 NOTICE of Appearance by Russell Welch on behalf of All Plaintiffs (Welch, Russell) (Entered: 03/03/2020)
70 ORDER. Please see the attached Standing Order No. 20−9, signed by Chief Judge Howell, In Re: Court Operations in Exigent Circumstances Created by the COVID−19 Pandemic. (lcapm1) (Entered: 03/17/2020)
MINUTE ORDER. Notwithstanding Standing Order 20−9, the conference call set for today, March 17, 2020, at 4:15 p.m. to discuss a discovery issue shall proceed as scheduled. Signed by Judge Amit P. Mehta on 3/17/2020. (lcapm1) (Entered: 03/17/2020)

 
 Case 1:18-cv-00378-APM Document 21 Filed 03/22/18 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

________________________________________

)

FATMA MAROUF and BRYN ESPLIN, a )

married couple; and

)

NATIONAL LGBT BAR ASSOCIATION, )

a non-profit membership organization, )

)

Plaintiffs,

)

)

v.

)

)

ALEX AZAR, in his official capacity as )

Secretary of the UNITED STATES

) Civil Action No. 1:18-cv-00378

DEPARTMENT OF HEALTH AND

)

HUMAN SERVCIES,

) FIRST AMENDED COMPLAINT

200 Independence Avenue, S.W.,

) FOR DECLARATORY AND

Washington, D.C. 20201;

) INJUNCTIVE RELIEF AND

) MONETARY DAMAGES

UNITED STATES DEPARTMENT OF )

HEALTH AND HUMAN SERVICES,

)

200 Independence Avenue, S.W.

)

Washington, D.C. 20201;

)

)

STEVEN WAGNER, in his official

)

capacity as Acting Assistant Secretary for )

the ADMINISTRATION FOR

)

CHILDREN AND FAMILIES,

)

330 C Street, S.W.,

)

Washington, D.C. 20201;

)

)

ADMINISTRATION FOR CHILDREN )

AND FAMILIES,

)

330 C Street, S.W.,

)

Washington, D.C. 20201;

)

)

SCOTT LLOYD, in his official capacity as )

Director of the OFFICE OF REFUGEE )

RESETTLEMENT,

)

330 C Street, S.W.,

)

Washington, D.C. 20201;

)

)

)

Case 1:18-cv-00378-APM Document 21 Filed 03/22/18 Page 2 of 28

OFFICE OF REFUGEE

)

RESETTLEMENT,

)

330 C Street, S.W.,

)

Washington, D.C. 20201; and

)

)

UNITED STATES CONFERENCE OF )

CATHOLIC BISHOPS, a non-profit

)

corporation,

)

3211 Fourth Street, N.E.,

)

Washington, D.C. 20017

)

)

Defendants.

Case 1:18-cv-00378-APM Document 21 Filed 03/22/18 Page 3 of 28
Introduction 1. Plaintiffs Fatma Marouf and Bryn Esplin (together, “Individual Plaintiffs”) and the National LGBT Bar Association (collectively with Individual Plaintiffs, “Plaintiffs”) bring this action seeking declaratory and injunctive relief and monetary damages against Alex Azar, in his official capacity as Secretary of the United States Department of Health and Human Services; United States Department of Health and Human Services; Steven Wagner, in his official capacity as Acting Assistant Secretary for the Administration for Children and Families; Administration for Children and Families; Scott Lloyd, in his official capacity as Director of the Office of Refugee Resettlement; and Office of Refugee Resettlement (together, “Federal Defendants”) for unlawful funding of certain child welfare organizations that perform federal taxpayer-funded services relating to unaccompanied refugee children1 in federal care and custody in a manner that impermissibly discriminates against same-sex couples who are prospective foster and adoptive parents. The organizations use religious doctrine regarding same-sex relationships to exclude such couples categorically from applying to be foster parents. By enabling federal taxpayer-funded child welfare services, for children in federal care and custody, to be performed in reliance on such doctrine, Federal Defendants are depriving children of the opportunity to be placed in eligible homes that serve their best interests. Federal Defendants are also impermissibly denying
1 Plaintiffs use the term “unaccompanied refugee children” to refer to children served under either the Unaccompanied Refugee Minor Program or the Unaccompanied Alien Children Program.
1

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eligible foster and adoptive parent applicants, such as Individual Plaintiffs, the opportunity to provide loving homes to children in need on account of the organizations’ religious beliefs regarding the applicants’ sexual orientation and sex and the same-sex character of their marriage. Federal Defendants’ actions are contrary to the best interests of children, whose welfare Federal Defendants are charged with protecting, and violate the United States Constitution.
Jurisdiction and Venue 2. This case arises under the Constitution of the United States, and presents federal questions within this Court’s jurisdiction pursuant to 28 U.S.C. § 1331. 3. This Court has jurisdiction to grant the requested declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202, Federal Rules of Civil Procedure 57 and 65, and the inherent equitable powers of the Court. 4. Venue is proper in this District because:
 pursuant to 28 U.S.C. § 1391(b)(1), Defendant United States Conference of Catholic Bishops is an entity incorporated under the laws of the District of Columbia with its principal place of business in the District of Columbia, and the remaining Defendants are officers or employees of an agency of the United States in their official capacities or agencies of the United States; and
 pursuant to 28 U.S.C. § 1391(b)(2), Defendants conduct a continuous and systematic portion of their business in this District,
2

Case 1:18-cv-00378-APM Document 21 Filed 03/22/18 Page 5 of 28
where a substantial part of the events giving rise to the claims, including the unlawful administration of federal funds by Federal Defendants, occurred.
Parties 5. Individual Plaintiffs Fatma Marouf (“Fatma”) and Bryn Esplin (“Bryn”), both women, are a married lesbian couple. Individual Plaintiffs are residents of Fort Worth, Texas, and federal taxpayers. Their taxpayer dollars contribute to the administration of federal child welfare programs, including those at issue in this action. In accordance with the United States Constitution, Individual Plaintiffs object to paying for federally funded child welfare services that are provided in a discriminatory manner, based on religious principles to which they do not subscribe, that fail to serve the best interests of children. 6. Individual Plaintiffs suffered the additional harms alleged in this Complaint when organizations receiving federal funds denied them the opportunity to be foster parents on the basis of the organizations’ religious beliefs regarding their sexual orientation and sex and the same-sex character of their marriage. Federal Defendants enabled such discrimination against Individual Plaintiffs. 7. Plaintiff National LGBT Bar Association is a non-profit membership-based 501(c)(6) professional association. The National LGBT Bar Association’s more than 10,000 members and subscribers include lawyers, judges, legal academics, law students, and affiliated legal organizations supportive of lesbian, gay, bisexual, and transgender (“LGBT”) rights. The National LGBT Bar
3

Case 1:18-cv-00378-APM Document 21 Filed 03/22/18 Page 6 of 28
Association and its members work to promote equality for all people regardless of sexual orientation or gender identity or expression, and fight discrimination against LGBT people as legal advocates.
8. The National LGBT Bar Association is a membership organization and brings this action on behalf of its members who are federal taxpayers. Many of the National LGBT Bar Association’s members, including those residing in the District of Columbia, pay federal taxes that contribute to the general revenues from which Congress appropriates monies that fund federal child welfare programs, including functions and responsibilities involving the care and custody of children under the Unaccompanied Refugee Minor (“URM”) Program and the Unaccompanied Alien Child (“UC”) Program. In accordance with the United States Constitution, members of the National LGBT Bar Association object to paying for federally funded child welfare services that are provided in a discriminatory manner, based on religious principles to which they do not subscribe, that fails to serve the best interests of children.
9. Plaintiffs bring suit against Defendant Alex Azar in his official capacity as Secretary of the United States Department of Health and Human Services. In that capacity, Defendant Azar oversees the United States Department of Health and Human Services.
10. Plaintiffs bring suit against Defendant United States Department of Health and Human Services (“HHS”), which is headquartered in the District of Columbia, and is charged with enhancing and protecting Americans’ health and
4

Case 1:18-cv-00378-APM Document 21 Filed 03/22/18 Page 7 of 28
well-being via the provision of health and human services. HHS is the federal agency that is responsible for overseeing the Office of Refugee Resettlement’s functions and responsibilities involving the care and custody of children under the URM Program and the UC Program.
11. Plaintiffs bring suit against Defendant Steven Wagner in his official capacity as Acting Assistant Secretary for the Administration for Children and Families. In that capacity, Defendant Wagner oversees the Administration for Children and Families.
12. Plaintiffs bring suit against Defendant Administration for Children and Families (“ACF”), which is headquartered in the District of Columbia, and is the division of HHS that is responsible for implementing certain human services programs, including those focused on fostering the economic and social welfare of youth and families, such as the URM Program and the UC Program administered by ORR.
13. Plaintiffs bring suit against Defendant Scott Lloyd in his official capacity as Director of the Office of Refugee Resettlement. In that capacity, Defendant Wagner oversees the Office of Refugee Resettlement.
14. Plaintiffs bring suit against Defendant Office of Refugee Resettlement (“ORR”), which is headquartered in the District of Columbia, and is the office within ACF that is responsible for the care and custody of children in the UC Program and the URM Program.
5

Case 1:18-cv-00378-APM Document 21 Filed 03/22/18 Page 8 of 28
15. Plaintiffs bring suit against Defendant United States Conference of Catholic Bishops (“USCCB”), a non-profit organization incorporated in the District of Columbia with its headquarters and principal place of business located in the District of Columbia. USCCB has a legal and financial interest relating to the subject of this action. Disposing of this action in USCCB’s absence would necessarily impair the interests it has by virtue of its grants, cooperative agreements, and funding from HHS. Because USCCB is subject to service and its participation will not deprive this Court of subject matter jurisdiction, its joinder pursuant to Federal Rule of Civil Procedure 19(a)(1) is required to permit this Court to accord complete relief among the parties, without exposing Federal Defendants to the risk of inconsistent obligations.
Factual Allegations The Unaccompanied Refugee Minor Program and the Unaccompanied Alien Children Program
16. The federal government currently cares for thousands of unaccompanied refugee children, many of whom are fleeing violence.
17. Federal Defendants administer the URM Program, which provides for the care of children who are under the age of 18, unaccompanied by an adult, and any of the following: refugees, entrants, asylees, victims of trafficking, certain minors with special immigrant juvenile status, or U visa holders.
18. Federal Defendants also administer the UC Program, which provides for the care of children who arrive in the United States unaccompanied by a parent
6

Case 1:18-cv-00378-APM Document 21 Filed 03/22/18 Page 9 of 28
or legal guardian, and who lack lawful immigration status in the United States. When such children are apprehended by the United States Department of Homeland Security, they are assigned to the care and custody of ORR.
19. ORR’s responsibilities under both programs include awarding and administering grants to and cooperative agreements with child welfare organizations, which can include religiously affiliated organizations, to perform child welfare services on ORR’s behalf, and ensuring that such organizations abide by applicable federal laws in providing such federally funded services.
20. Through grants to and cooperative agreements with child welfare organizations, ORR provides services to the children in its custody, including but not limited to shelter, foster care and residential placement, and adoption services. ORR is charged with guaranteeing that the best interests of the children are paramount in implementing its child welfare programs. The child welfare organizations to which ORR awards grants and cooperative agreements are charged with, among other things, matching children in their care with qualified families in accordance with ORR’s standards of care.
21. Religiously affiliated organizations are among the providers of federally funded care for children under the URM Program and the UC Program. Although the organizations that receive federal grants and cooperative agreements under these programs may be faith-based organizations, they may not use federal funds to proselytize or for other sectarian purposes, such as restricting access to federally funded child welfare services based on faith-based principles.
7

Case 1:18-cv-00378-APM Document 21 Filed 03/22/18 Page 10 of 28
22. ORR has an obligation to ensure that the organizations that receive grants or cooperative agreements to provide federal child welfare services relating to unaccompanied refugee children in its custody do so without discriminating against foster or adoptive parent applicants based on their sexual orientation, their sex, the same-sex character of their marriage, or the religious beliefs of the organizations.
23. There are more children in the care of Federal Defendants under the URM Program and the UC Program than there are eligible foster or adoptive homes seeking placement or adoption of such children.
24. There is no valid basis for the government to prefer different-sex couples over same-sex couples when considering or approving would-be foster or adoptive parents or making placement or adoption decisions. The scientific community has reached consensus that children reared by lesbian or gay parents are just as likely to be well-adjusted as children of heterosexual parents. This consensus has been recognized by every major professional organization dedicated to children’s health and welfare, including: the American Academy of Pediatrics, the American Psychological Association, the American Medical Association, the National Association of Social Workers, and the Child Welfare League of America. There is no basis in social science or child welfare principles for categorically barring same-sex spouses from being foster or adoptive parents.
25. When Federal Defendants enable organizations to turn away qualified foster or adoptive parent applicants based on criteria unrelated to child welfare,
8

Case 1:18-cv-00378-APM Document 21 Filed 03/22/18 Page 11 of 28
such as the applicants’ sexual orientation or sex or the same-sex character of their marriage, or the religious beliefs of the organizations, the number of potential homes for children is reduced.
26. Such exclusions that reduce the number of placement or adoption options for children can also result in placing children with less suitable parents who are unable to meet the children’s individualized needs, causing harm to children in ORR’s custody and care. United States Conference of Catholic Bishops
27. USCCB, a grantee of ORR, is one of the primary organizations that implements the URM Program and the UC Program on behalf of Federal Defendants. USCCB, through its affiliates and sub-grantees, determines appropriate placements for children under the URM Program and the UC Program, among other responsibilities.
28. USCCB receives millions of dollars in grants from ORR annually under the URM Program and the UC Program. ORR authorizes USCCB to use those funds to award sub-grants to other organizations, including its sub-grantee, Catholic Charities of Fort Worth (“CCFW”), to perform services for children in the Fort Worth region of Texas under the URM Program and the UC Program.
29. USCCB is the sole or primary source of funding for CCFW’s services for children under the URM Program and the UC Program.
30. In its URM grant application for the relevant period, USCCB informed ORR that “USCCB must ensure that services provided under this application are
9

Case 1:18-cv-00378-APM Document 21 Filed 03/22/18 Page 12 of 28
not contrary to the authentic teaching of the Catholic Church, its moral convictions, or religious beliefs.”
31. In its UC grant application for the relevant period, USCCB similarly informed ORR that “USCCB must ensure that services provided under this application are not contrary to the authentic teaching of the Catholic Church, its moral convictions, and religious beliefs in an approach that is consistent with the ACF Policy on Grants to Faith-Based Organizations.”
32. USCCB also notified ORR in its UC grant application that it would require sub-grantees to comply with an agreement provision entitled “Catholic Identity,” under which sub-grantees:
must ensure that services provided to those served under this Agreement are not contrary to the authentic teaching of the Catholic Church, its moral convictions, and religious beliefs. Accordingly, [USCCB] expects that the Sub-recipient will provide services under this Agreement within certain parameters including, among other things, that the Sub-recipient will not provide, refer, encourage, or in any way facilitate access to contraceptives or abortion services. 33. When ORR awarded the URM and UC grants to USCCB for the relevant period, it did not prohibit USCCB from administering the grants based on religious considerations, as set forth in USCCB’s grant applications. Nor did ORR implement any other safeguards to prevent USCCB from doing so. 34. USCCB’s URM and UC grant applications for prior periods contained similar statements of intent with respect to religiously motivated administration of the grants, and ORR similarly did not implement adequate safeguards to prevent
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USCCB from carrying out such intent. On information and belief, if unchecked, this pattern will persist.
35. In numerous contexts, USCCB has publicly objected to providing services to married applicants unless they are in a legal union of one man and one woman. USCCB’s website openly advocates against parenting of children by samesex couples. For example, USCCB Fact Sheets concerning adoption and foster care services, which have appeared on USCCB’s website since at least 2013, state that, “[w]hen placing children with couples, Catholic Charities ensures those children enjoy the advantage of having a mother and a father who are married.” Discrimination Against Catholic Adoption Services, USCCB http://www.usccb.org/issues-and-action/religious-liberty/discrimination-againstcatholic-adoption-services.cfm (last visited Feb. 16, 2018).
36. Another section on USCCB’s website entitled “Frequently Asked Questions About the Defense of Marriage” states, and stated at all times during the relevant period, that “[p]lacing a child in the care of two men or two women may be well-intentioned, but ultimately deprives the child of that which best serves his or her interests – a mother and a father.” Frequently Asked Questions About the Defense of Marriage, USCCB, http://www.usccb.org/issues-and-action/marriage-andfamily/marriage/promotion-and-defense-of-marriage/frequently-asked-questions-ondefense-of-marriage.cfm (last visited Feb. 16, 2018).
37. Additionally, as confirmed by a press release first posted on its website in 2015, USCCB has lobbied for the passage of laws that would allow child welfare
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organizations that receive federal funds for adoption and foster care services to declare overtly, without fear of adverse governmental action, that, based on their religious beliefs, they permit adoption by, and foster care placement with, only married couples comprising one man and one woman.
38. When ORR awarded the URM and UC grants to USCCB for the relevant period, it was on notice that USCCB’s religious beliefs disfavored same-sex relationships.
39. Federal Defendants unlawfully use federal taxpayer dollars to finance grants to USCCB to implement the URM Program and the UC Program based on impermissible religious criteria.
40. Federal Defendants are required to administer grants and cooperative agreements in a manner so as to ensure that federal funding is expended, and associated federal programs are implemented, in accordance with the constitutional guarantees of equality and liberty and the strictures of the Establishment Clause, in addition to applicable statutory and regulatory requirements, including but not limited to those prohibiting discrimination.
41. HHS requires that no person otherwise eligible be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services based on non-merit-based factors such as sexual orientation, sex, and religion. See 45 C.F.R. § 75.300(c) (2018). HHS grantees and sub-grantees, including USCCB and its sub-grantees, must comply with this requirement in the administration of programs supported by HHS awards.
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42. HHS also requires that, in accordance with the Supreme Court decisions in United States v. Windsor and Obergefell v. Hodges, HHS grantees and sub-grantees, including USCCB and its sub-grantees, must treat as valid the marriages of same-sex couples in the administration of programs supported by HHS awards. See 45 C.F.R. § 75.300(d) (2018).
Fatma and Bryn Seek to Foster an Unaccompanied Refugee Child 43. Fatma and Bryn married in 2015 and moved to Texas in 2016. Fatma is a 41-year-old law professor at Texas A&M University Law School and director of its Immigrant Rights Clinic. She was born in California to Egyptian and Turkish immigrant parents. Bryn, age 33, teaches Bioethics at Texas A&M University’s School of Medicine. Bryn was born in St. George, Utah and grew up there and later in Las Vegas, Nevada. The couple’s wedding ceremony joyfully wove together customs from their diverse backgrounds and cultures—Fatma being raised Muslim and Bryn, Mormon. 44. The couple was eager to bring a child into their family. After their wedding, Fatma attempted to get pregnant though reproductive technology. Their attempts were unsuccessful, and the couple began considering other options for bringing a child into their lives. 45. Fatma became familiar with CCFW through her work at the immigration clinic. The chief executive officer of CCFW sent Fatma a personal solicitation via e-mail, proposing a stronger relationship between CCFW and Fatma’s clinic. To advance that goal, CCFW invited Fatma to tour CCFW’s facility,
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writing that “[i]t would be an honor to host you!” Fatma went on the tour where she learned about CCFW’s work with unaccompanied refugee children.
46. Fatma’s visit sparked her and Bryn’s shared interest in fostering an unaccompanied refugee child. The couple sought more information from CCFW about their foster care programs and exchanged multiple e-mails with a CCFW employee about the next steps for bringing an unaccompanied refugee child into their home. In those e-mails, Bryn was identified as Fatma’s spouse. The couple was thrilled when CCFW scheduled an initial telephone interview for them with a CCFW representative.
47. On or about February 22, 2017, Fatma and Bryn spoke with the CCFW representative. The CCFW representative described various requirements to become foster parents, as well as the population of children in need of foster homes. During the call, it became clear to CCFW that Fatma and Bryn are same-sex spouses.
48. The CCFW representative then told Fatma and Bryn that foster parents must “mirror the holy family.” To clarify whether their relationship would be an issue, Fatma explicitly stated that she and Bryn are a same-sex couple. The CCFW representative responded that they did not “qualify” to foster a child.
49. Shocked by the CCFW representative’s response, Fatma then asked about LGBT children in CCFW’s care, because LGBT youth may qualify for asylum. The CCFW representative responded that none of the children that CCFW serves is a member of the LGBT community.
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50. On or about that same day, February 22, 2017, the Director of Immigration Services for CCFW recognized Fatma’s expertise related to CCFW’s immigration work by sending Fatma and two of her colleagues an e-mail inviting them to deliver a “Know Your Rights Presentation” at CCFW on March 4, 2017. Fatma accepted the invitation and gave the presentation. Hundreds of people attended, and the director wrote to Fatma afterward to thank her for the presentation.
51. On or about February 22, 2017, Fatma e-mailed the general e-mail address for ORR to report that CCFW had discriminated against her and her samesex spouse by informing them that they were not eligible to foster an unaccompanied refugee child because they did not “mirror the holy family.” Fatma’s e-mail asked whether such conduct was permissible and sought information about alternative organizations that would allow same-sex couples to become foster parents. Fatma did not receive a response to her e-mail until April 14, 2017, when the “ORR team” e-mailed Fatma asking for the names of the individuals at CCFW who “informed [her] that the agency does not license foster families who do not mirror the holy family”.
52. On or about April 25, 2017, Fatma contacted CCFW by e-mail asking for the contact information of the CCFW representative with whom she and Bryn had spoken on or about February 22, 2017. On or about May 1, 2017, CCFW responded by e-mail and provided the contact information for the CCFW representative. CCFW identified the CCFW representative as Dana Springer.
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53. Fatma provided the information that ORR requested on May 1, 2017. She received a response on May 2, 2017, which only thanked her for providing the information. She has since received no further communication from either ORR or CCFW.
54. By working to ensure that none of the children for which they are responsible are placed in homes of same-sex spouses based on USCCB’s religious beliefs, USCCB and its sub-grantees not only discriminate against same-sex spouses, but also effectively erase the non-Catholic identities and beliefs of many of the unaccompanied refugee children for which they are responsible. This conduct potentially increases those children’s alienation and vulnerability, while denying them access to loving homes that could serve them best—all at federal taxpayers’ expense.
55. By working to ensure that none of the children for which they are responsible be placed in homes of same-sex spouses based on USCCB’s religious beliefs, USCCB and its sub-grantees also disserve and demean the youth for which they are responsible who are LGBT, stigmatizing them as less deserving and worthy of respect than others, and sending them the message that, when they grow up to form families of their own, they and their families will not have a right to equal treatment in the provision of government services.
56. Federal Defendants were on notice at the time that they awarded the URM and UC program grants for the relevant period to USCCB that USCCB and its sub-grantees, including CCFW, would administer the grants in a discriminatory
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manner based on its religious beliefs, including its religious beliefs disfavoring same-sex relationships. Yet Federal Defendants did not implement adequate safeguards to prevent USCCB or its sub-grantees, including CCFW, from doing so. As a result, Federal Defendants violated the United States Constitution.
57. Federal Defendants’ failure to remedy the discrimination by USCCB and its sub-grantee in denying Fatma and Bryn the opportunity to foster a child under the URM Program or the UC Program based on impermissible religious considerations, of which they are on notice, compounds their constitutional violation.
CLAIMS FOR RELIEF Count I
(First Amendment – Establishment Clause) U.S. Const. amend I
58. Plaintiffs reincorporate the foregoing allegations as if fully set forth herein.
59. Federal Defendants have provided and continue to provide federal taxpayer funds to USCCB and its sub-grantees to provide federal child welfare services for unaccompanied refugee children in the Fort Worth region of Texas under both the URM Program and the UC Program.
60. USCCB and its sub-grantees apply its own religious criteria in providing these federally funded services when accepting applications from prospective foster and adoptive parents, including religious requirements that
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discriminate against prospective foster and adoptive parents on account of their sexual orientation and sex and the same-sex character of their marriage.
61. Federal Defendants were on notice at the time that they awarded the URM and UC grants for the relevant period to USCCB that USCCB and its subgrantees, including CCFW, would administer the grants in a discriminatory manner based on its religious beliefs, including its religious beliefs disfavoring same-sex relationships.
62. Federal Defendants failed to implement adequate safeguards to prevent USCCB or its sub-grantees, including CCFW, from administering the URM and UC grants in a discriminatory manner based on its religious beliefs.
63. USCCB and its sub-grantee used federal funds provided by Federal Defendants to discriminate against Fatma and Bryn based on USCCB’s religious beliefs.
64. Federal Defendants failed to take any corrective action after Fatma and Bryn notified them that USCCB and its sub-grantee had engaged in sectarian discrimination against Fatma and Bryn under federal programs administered by Federal Defendants.
65. Federal Defendants have violated and continue to violate the Establishment Clause by enabling, sanctioning, ratifying, and failing to implement adequate safeguards against USCCB’s and its sub-grantees’ use of federal taxpayer funds for its own sectarian purposes, including categorically excluding certain
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members of the public from funded child welfare services based on faith-based principles.
66. By enabling grantees and sub-grantees to exclude members of the public from federal child welfare services based solely on their religious beliefs, Federal Defendants have disbursed and continue to disburse federal taxpayer funds in a manner that is not neutral with respect to religion.
67. By enabling grantees and sub-grantees to provide federal child welfare services based on their religious beliefs, Federal Defendants have disbursed and continue to disburse federal taxpayer funds in a manner that prefers USCCB’s Catholic identity and beliefs.
68. By funding USCCB with knowledge that it will use such funds to engage in sectarian discrimination based on its religious beliefs, and by failing to establish adequate safeguards to prevent such discrimination, Federal Defendants have improperly acted with a religious purpose and with a primary effect of advancing USCCB’s Catholic identity and beliefs.
69. By funding USCCB with knowledge that it will use such funds to engage in sectarian discrimination based on its religious beliefs, and by failing to establish adequate safeguards to prevent such discrimination, Federal Defendants have improperly defined recipients of such funds by reference to religion and impermissibly effected governmental indoctrination.
70. By funding USCCB with knowledge that it will use such funds to engage in sectarian discrimination based on its religious beliefs, and by failing to
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establish adequate safeguards to prevent such discrimination, Federal Defendants have improperly endorsed USCCB’s Catholic identity and beliefs.
71. By enabling USCCB’s religious beliefs to be a precondition to receiving government services, Federal Defendants have impermissibly coerced individuals, including vulnerable and impressionable children in the care of USCCB and CCFW, with respect to those religious beliefs.
72. As federal taxpayers, Individual Plaintiffs and members of the National LGBT Bar Association are harmed by Federal Defendants’ use of federal taxpayer funds to underwrite and endorse religious beliefs to which they do not subscribe.
73. Federal Defendants’ actions also harm LGBT individuals and couples who wish to become foster or adoptive parents, including Individual Plaintiffs.
74. Through the actions described above, Federal Defendants have deprived and continue to deprive Plaintiffs of their rights protected by the Establishment Clause of the First Amendment to the United States Constitution.
Count II (Fifth Amendment – Equal Protection)
U.S. Const. amend V 75. Plaintiffs reincorporate the foregoing allegations as if fully set forth herein. 76. The Due Process Clause of the Fifth Amendment to the United States Constitution prohibits the federal government from denying equal protection of the laws.
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77. Federal Defendants have discriminated and continue to discriminate impermissibly against individuals, including Individual Plaintiffs, based on religion, their sexual orientation, their sex, and the same-sex character of their marriage, by funding the administration of services that they are on notice are being administered in a manner that disfavors same-sex relationships.
78. Federal Defendants have deprived and continue to deprive individuals, including Individual Plaintiffs, of equal dignity, liberty, and autonomy, and brand them as inferior by discriminating against them based on religion, sexual orientation, sex, and the exercise of the fundamental right to marry.
79. Discrimination based on religion, sexual orientation, sex, or the exercise of the fundamental right to marry (including to a person of the same sex) is presumptively unconstitutional and subject to heightened scrutiny.
80. There is no constitutionally adequate justification for Federal Defendants’ actions.
81. Federal Defendants’ actions fail to advance any legitimate governmental interest. To the contrary, enabling the religious test at issue is antithetical to Federal Defendants’ responsibility to ensure that the best interests of the children in their care and custody drive their placement and adoption.
82. Federal Defendants’ actions harm LGBT individuals and couples who wish to become foster or adoptive parents, including Individual Plaintiffs.
83. Through the actions described above, Federal Defendants have deprived and continue to deprive Individual Plaintiffs of their rights protected by
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the equal protection guarantee of the Fifth Amendment to the United States Constitution.
Count III (Fifth Amendment – Substantive Due Process)
U.S. Const. amend V 84. Plaintiffs reincorporate the foregoing allegations as if fully set forth herein. 85. The Fifth Amendment's Due Process Clause protects individuals' substantive rights to be free to make certain decisions central to autonomy, integrity, self-definition, intimacy, and personhood without unjustified governmental intrusion. These decisions include the fundamental right to marry, including the right to marry someone of the same sex. 86. Married persons also have a fundamental liberty interest in their marriage, including a fundamental liberty interest in the federal government recognizing and respecting marriages validly entered into under state law. 87. Additionally, all persons have a liberty interest in their family privacy, integrity, and association. 88. Federal Defendants enabled, sanctioned, and ratified USCCB’s and its sub-grantees’ use of a religious test to deny Fatma and Bryn the ability to apply to be foster or adoptive parents under the URM Program or UC Program solely due to a judgment that their family “does not mirror the holy family.” In doing so, Federal Defendants’ conduct violated the substantive due process component of the Due Process Clause of the Fifth Amendment because Federal Defendants burdened
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Fatma and Bryn’s liberty interests and penalized their exercise of their fundamental right to marry.
89. There is no constitutionally adequate justification for Federal Defendants’ infringement of Individual Plaintiffs’ fundamental rights.
90. Federal Defendants’ actions harm LGBT individuals and couples who wish to become foster or adoptive parents, including Individual Plaintiffs.
91. Through the actions described above, Federal Defendants have violated and continue to violate the substantive due process protections of the Fifth Amendment to the United States Constitution.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that this Court grant the following relief: A. Enter a declaratory judgment that Federal Defendants’ failure to ensure that Individual Plaintiffs may apply to be foster or adoptive parents to a child under the URM Program or the UC Program through Federal Defendants’ grantee USCCB absent religious or other criteria that disfavor them based on their sexual orientation or sex or the same-sex character of their marriage violates the First and Fifth Amendments to the United States Constitution. B. Enter a declaratory judgment that Federal Defendants’ actions in enabling, sanctioning, ratifying, or failing to implement adequate safeguards against the use of religious or other criteria disfavoring same-sex relationships to determine who may receive federal child welfare services under the URM Program
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and the UC Program violates the First and Fifth Amendments to the United States Constitution.
C. Issue a permanent injunction requiring Federal Defendants to ensure that Individual Plaintiffs may apply to be foster or adoptive parents to a child under the URM Program or the UC Program through Federal Defendants’ grantee USCCB absent religious or other criteria that disfavor them based on their sexual orientation or sex or the same-sex character of their marriage.
D. Issue a permanent injunction prohibiting Federal Defendants from enabling, sanctioning, ratifying, or failing to implement adequate safeguards against the use of religious or other criteria to exclude foster or adoptive parent applicants based on their sexual orientation or sex or the same-sex character of their marriage in the administration of the URM Program and the UC Program, including, as necessary, prohibiting Federal Defendants from awarding URM or UC grants to USCCB.
E. Award Plaintiffs nominal monetary damages. F. Award Plaintiffs their reasonable costs and attorney’s fees. G. Grant any other and further relief that this Court may deem fit and proper. Dated: March 22, 2018
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Respectfully submitted,
HOGAN LOVELLS US LLP
By: /s/ Jessica L. Ellsworth Jessica L. Ellsworth (DC Bar No. #484170) *Kenneth Y. Choe **Jennifer A. Fleury *James A. Huang HOGAN LOVELLS US LLP 555 Thirteenth Street, N.W. Washington, D.C. 20004–1109 Telephone: (202) 637-5600 Facsimile: (202) 637-5910 jessica.ellsworth@hoganlovells.com ken.choe@hoganlovells.com jennifer.fleury@hoganlovells.com james.huang@hoganlovells.com
*Alali Dagogo-Jack HOGAN LOVELLS US LLP 4085 Campbell Avenue, Suite 100 Menlo Park, CA 94025 Telephone: (650) 463-4070 alali.dagogo-jack@hoganlovells.com
and
*Camilla B. Taylor *Jamie A. Gliksberg LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 105 West Adams, 26th Floor Chicago, IL 60603-6208 Telephone: (312) 663-4413 ctaylor@lambdalegal.org jgliksberg@lambdalegal.org
25

Case 1:18-cv-00378-APM Document 21 Filed 03/22/18 Page 28 of 28 *Kenneth D. Upton, Jr. LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3500 Oak Lawn Avenue, Suite 500 Dallas, TX 75219-6722 Telephone: (214) 219-8585 kupton@lambdalegal.org Attorneys for Plaintiffs *admitted pro hac vice **admission to the bar of the Court pending
26

 
 Case 1:18-cv-00378-APM Document 38 Filed 12/14/18 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FATMA MAROUF AND BRYN ESPLIN, a married couple; and NATIONAL LGBT BAR ASSOCIATION, a non-profit membership organization
Plaintiffs,
v.
ALEX AZAR, in his official capacity as Secretary of the UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,
Defendants.

) ) ) ) ) ) ) ) ) Case No. 1:18-cv-378 (APM) ) ) ) ) ) ) ) )

JOINT STATUS REPORT

Counsel for Plaintiffs Fatma Marouf, Bryn Esplin, and National LGBT Bar Association (“Plaintiffs”); counsel for Defendants United States Department of Health and Human Services

(“HHS”), Administration for Children and Families (“ACF”), Office of Refugee Resettlement (“ORR”), Alex Azar, in his official capacity as Secretary of HHS, Lynn Johnson, in her official capacity as Assistant Secretary for ACF, and Jonathan Hayes, in his official capacity as Acting

Director of ORR (collectively the “Federal Defendants”); and counsel for United States Conference of Catholic Bishops (“USCCB”) respectfully submit this Joint Status Report.1
Pursuant to the Court’s request, counsel for all parties conferred on December 10 and 13, 2018, with respect to a potential settlement. The parties agree that the discussions have been

productive, but additional time and information are necessary to determine whether an agreeable

1 Ms. Johnson and Mr. Hayes were automatically substituted as defendants in this case by operation of Fed. R. Civ. P. 25(d).
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Case 1:18-cv-00378-APM Document 38 Filed 12/14/18 Page 2 of 5

proposal may be facilitated. Subject to the Court’s approval, the parties propose that an additional Joint Status Report shall be submitted on January 14, 2019, after further discussions have taken place.

Dated: December 14, 2018

Respectfully submitted,
HOGAN LOVELLS US LLP
By: /s/ Kenneth Y. Choe Kenneth Y. Choe (pro hac vice) Jessica L. Ellsworth (DC Bar No. #484170) Jennifer A. Fleury (DC Bar No. #187503) James A. Huang (pro hac vice) HOGAN LOVELLS US LLP 555 Thirteenth Street, N.W. Washington, D.C. 20004-1109 Telephone: (202) 637-5600 Facsimile: (202) 637-5910 jessica.ellsworth@hoganlovells.com ken.choe@hoganlovells.com jennifer.fleury@hoganlovells.com james.huang@hoganlovells.com
Alali Dagogo-Jack (pro hac vice) HOGAN LOVELLS US LLP 3 Embarcadero Center, Suite 1500 San Francisco, California 94111 Telephone: (415) 374-2338 Facsimile: (415) 374-2499 alali.dagogo-jack@hoganlovells.com
Heaven Chee (pro hac vice) HOGAN LOVELLS US LLP 609 Main Street, Suite 4200 Houston, Texas 77002 Telephone: (713) 632-1427 Facsimile: (713) 632-1401 heaven.chee@hoganlovells.com
Daryl L. Kleiman (pro hac vice) HOGAN LOVELLS US LLP 875 Third Avenue New York. NY 10022

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Case 1:18-cv-00378-APM Document 38 Filed 12/14/18 Page 3 of 5
Telephone: (212) 918-3728 Facsimile: (212) 918-3100 daryl.kleiman@hoganlovells.com
Camilla B. Taylor (pro hac vice) Jamie A. Gliksberg (pro hac vice) LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 105 West Adams, 26th Floor Chicago, IL 60603-6208 Telephone: (312) 663-4413 ctaylor@lambdalegal.org jgliksberg@lambdalegal.org
Kenneth D. Upton, Jr. (pro hac vice) LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3500 Oak Lawn Avenue, Suite 500 Dallas, TX 75219-6722 Telephone: (214) 219-8585 kupton@lambdalegal.org
Counsel for Plaintiffs
JOSEPH H. HUNT Assistant Attorney General
MICHELLE BENNETT Assistant Branch Director
/s/ James Powers JAMES R. POWERS (TX Bar No. 24092989) Trial Attorney, Federal Programs Branch U.S. Department of Justice, Civil Division 1100 L Street, NW, Room 11218 Washington, DC 20005 Telephone: (202) 353-0543 james.r.powers@usdoj.gov
Counsel for Federal Defendants
/s/ David T. Raimer David T. Raimer (DC Bar No. #994558) Anthony J. Dick (DC Bar No. #1015585) JONES DAY
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Case 1:18-cv-00378-APM Document 38 Filed 12/14/18 Page 4 of 5
51 Louisiana Ave. NW Washington, DC, 20001-2113 Telephone: (202) 879-3939 Facsimile: (202) 626-1700 dtraimer@jonesday.com ajdick@jonesday.com Leon F. DeJulius, Jr. (pro hac vice) John D. Goetz (pro hac vice) JONES DAY 500 Grant Street, Suite 4500 Pittsburgh, PA 15219-2514 Telephone: (412) 391-3939 Facsimile: (412) 394-7959 lfdejulius@jonesday.com jdgoetz@jonesday.com Counsel for Defendant United States Conference of Catholic Bishops
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Case 1:18-cv-00378-APM Document 38 Filed 12/14/18 Page 5 of 5

CERTIFICATE OF SERVICE I hereby certify that on December 14, 2018, a true and correct copy of the foregoing Joint

Status Report was filed using the Court's CM/ECF system, which will serve all counsel of

record.

By: /s/ Kenneth Y. Choe Kenneth Y. Choe (pro hac vice)

5

 
 Case 1:18-cv-00378-APM Document 44 Filed 02/08/19 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FATMA MAROUF AND BRYN ESPLIN, a married couple; and NATIONAL LGBT BAR ASSOCIATION, a non-profit membership organization
Plaintiffs,
v.
ALEX AZAR, in his official capacity as Secretary of the UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,
Defendants.

) ) ) ) ) ) ) ) ) Case No. 1:18-cv-378 (APM) ) ) ) ) ) ) ) )

JOINT STATUS REPORT

Counsel for Plaintiffs Fatma Marouf, Bryn Esplin, and National LGBT Bar Association (“Plaintiffs”); counsel for Defendants United States Department of Health and Human Services (“HHS”), Administration for Children and Families (“ACF”), Office of Refugee Resettlement (“ORR”), Alex Azar, in his official capacity as Secretary of HHS, Lynn Johnson, in her official capacity as Assistant Secretary for ACF, and Jonathan Hayes, in his official capacity as Acting Director of ORR (collectively the “Federal Defendants”); and counsel for United States Conference of Catholic Bishops (“USCCB”) respectfully submit this Joint Status Report.
Since the parties’ last Joint Status Report, ECF No. 38, and after appropriations were restored to the Department of Justice, counsel for all parties conferred on February 4 and 6, 2019, with respect to a potential settlement of this litigation. The parties agree that the discussions have been in good faith, but the parties are unable to reach an agreement at this time. The parties’ respective positions on how to proceed are set forth below:

Case 1:18-cv-00378-APM Document 44 Filed 02/08/19 Page 2 of 8
I. Federal Defendants’ Position. Federal Defendants respectfully request that the Court continue to hold the motions to
dismiss for a further 60 days to permit Federal Defendants to continue their efforts to establish an alternative provider in the Dallas-Fort Worth area of Texas, which may resolve individual Plaintiffs’ claims.
As previously raised at the hearing on Defendants’ motion to dismiss, the Government has identified a potential supplemental grantee to provide long-term foster care in the UAC program in the Dallas-Fort Worth area. That potential supplemental grantee, Lutheran Immigration and Refugee Service (“LIRS”), is a longstanding partner of ORR in providing high quality services under both the UAC and URM programs, but it does not currently provide long-term foster care services through sub-grantees in either program in Dallas-Fort Worth. LIRS has informed the Government that it is willing to provide services in the Dallas-Fort Worth area if it can locate a licensed child-placing agency with which to partner (in the same way that USCCB has partnered with Catholic Charities of Fort Worth). LIRS also has informed the Government that it does not have any objection to working with same sex couples as foster parents.
Because LIRS does not currently provide long-term foster care under these programs in the Dallas-Fort Worth area, it does not currently have a partner and is engaged in efforts to establish one. LIRS previously informed the Government that it was in discussions with a potential partner child-placing agency but, after the motion to dismiss hearing, the Government learned that that option would not come to fruition this Federal fiscal year. LIRS has since informed the Government that it is currently engaged in discussions with three licensed child-placing agencies that could serve as a partner to LIRS in providing long-term foster care in the UAC program in Dallas-Fort Worth. Such discussions involve evaluating the capacity and expertise of the potential

Case 1:18-cv-00378-APM Document 44 Filed 02/08/19 Page 3 of 8
partners to ensure that they are capable of providing the quality services to unaccompanied youth that is expected by ORR and required under relevant laws and grant agreements. If LIRS is able to reach agreement with such a partner, LIRS has represented that it will apply for supplemental funding under its current grant with ORR to provide such long-term foster care services under the UAC program. Although the Government cannot prejudge any grant application, ORR remains open to considering such an application.
With respect to the URM program, LIRS has represented that it is willing to explore with ORR the possibility of serving as a supplemental replacement designee in the State of Texas for the URM program, providing foster care to unaccompanied refugee minors through the same potential provider in Dallas-Fort Worth. ORR is also open to exploring this option. Such a process could only begin after LIRS has identified a partner service provider in Dallas-Fort Worth.
As explained above, Federal Defendants’ efforts to establish an alternative provider in Dallas-Fort Worth are necessarily reliant upon the voluntary involvement of third party service providers like LIRS and any licensed child-placing agency with which LIRS partners. Because of the involvement of third parties, Federal Defendants are unable to forecast the outcome of this process or estimate how long it will take. But Federal Defendants are committed to pursuing this scenario and hope to have more information for the Court on their progress in 60 days.
Federal Defendants believe that the introduction of LIRS as an alternative service provider under the UAC program will likely resolve individual Plaintiffs’ claims that are premised on an alleged denial of opportunity to serve as foster parents to unaccompanied youth, by creating such an opportunity. Accordingly, although Federal Defendants continue to believe that the arguments raised in their pending motion to dismiss warrant dismissal of the complaint in full, they

Case 1:18-cv-00378-APM Document 44 Filed 02/08/19 Page 4 of 8
respectfully propose that the Court continue to hold the motions to dismiss for a further 60 days to permit additional time for the facts to develop concerning a potential alternative provider.
Holding the motions is particularly warranted because, as explained above, Federal Defendants are necessarily reliant upon the voluntary involvement of third party service providers like LIRS to provide the opportunity individual Plaintiffs allegedly seek; Federal Defendants do not have legal authority to directly serve as a child-placing agency under Texas law. Thus, even if this case were to proceed to the merits and the individual Plaintiffs were to prevail, they could not obtain any more relief than what Federal Defendants are currently trying to provide, i.e., an alternative provider in Dallas-Fort Worth that will allow them an opportunity to become foster parents to unaccompanied youth.1 If plaintiffs were to obtain an order prohibiting HHS from working with USCCB in Texas (unless USCCB adopted policies it refuses to adopt), the result would not be to make foster services available to the plaintiffs but to deprive the children and all other prospective parents from having this foster care process available in Dallas-Fort Worth. Thus, Federal Defendants’ ongoing efforts with LIRS represent the best current means to create the opportunity individual Plaintiffs allegedly seek. Indeed, in the URM program, LIRS is the only other national resettlement agency that is designated by the State Department to resettle unaccompanied refugee minors and it is not possible under the structure of the program for ORR to provide URM services through an agency not so designated by the State Department. The State Department provides unaccompanied refugee minor referrals to USCCB and LIRS for URM placement and placement decisions are made by USCCB or LIRS. A URM program not affiliated
1 Notwithstanding their efforts here, Federal Defendants maintain that the Court lacks any legal basis to order them to attempt to work with LIRS or any other particular provider, or to fund a foster care program in Texas for UACs or URMs. If the Court does not dismiss this case entirely for lack of jurisdiction, Federal Defendants anticipate arguing that Plaintiffs’ claims fail.

Case 1:18-cv-00378-APM Document 44 Filed 02/08/19 Page 5 of 8
with either USCCB or LIRS would not be able to resettle unaccompanied refugee minors through the U.S. Refugee Admissions Program.
Federal Defendants propose that they file a status report by April 9, 2019 to provide the Court with an update on these issues. II. USCCB’s Position.
For the reasons expressed by the Federal Defendants, USCCB likewise respectfully requests that the Court continue to hold the motions to dismiss for a further 60 days to allow the government to continue its effort to establish an alternative provider in the Dallas-Fort Worth area of Texas. As the existence of an additional provider would resolve Plaintiffs’ asserted injuries— or, at the least, make a material difference to the Article III standing analysis—such an abeyance would further interests of judicial efficiency by helping to ensure that the Court does not render an opinion on the basis of circumstances that are soon likely to change.
Alternatively, USCCB respectfully requests that the Court set a status conference to allow the parties to further address the impact of the Federal Defendants’ actions on the pending motions and the status of these proceedings. III. Plaintiffs’ Position.
Because the parties agree that, despite their good-faith discussions, they are unable to reach an agreement at this time, Plaintiffs seek to continue to prosecute their case expeditiously. Plaintiffs, therefore, do not agree with Defendants’ positions and respectfully request that the Court proceed to rule on the pending motions and otherwise allow the case to proceed.
Plaintiffs in good faith and early in the process provided Defendants with guiding principles to inform the parties’ consideration of any resolution. Plaintiffs also offered practical

Case 1:18-cv-00378-APM Document 44 Filed 02/08/19 Page 6 of 8
suggestions for alternative ways in which Federal Defendants could ensure seamless and equitable consideration of applications from prospective foster parents in the region, and placement decisions that put children’s best interests above all other considerations. However, the parties could not reach agreement on either these principles or these practical suggestions.
Additionally, an alternative service provider has not been identified to serve as a subgrantee for LIRS under the Unaccompanied Refugee Minor (URM) and Unaccompanied Alien Children (UAC) programs in the region that does not discriminate based on its religious beliefs. Although Federal Defendants represent that they have had discussions with LIRS about identifying a subgrantee in the region, and that LIRS is in exploratory discussions itself with three child-placing agencies, Federal Defendants cannot provide any reasonable assurance as to how long such an exploration will take, not to mention the fact that the government is currently focused only on UAC programs and Plaintiffs’ claims seek consideration under both programs.
Moreover, it is Plaintiffs’ position that identification of such a provider, without ensuring: a) a nondiscriminatory application process common to all applicants absent stigmatizing exclusions; and b) placement decisions for children in federal child welfare programs prioritize child welfare considerations by considering all eligible homes without regard to the religious exclusions of grantees, would be insufficient on its own to resolve either the individual Plaintiffs’ claims under the equal protection and due process guarantees and the Establishment Clause, or all Plaintiffs’ claims as taxpayers under the Establishment Clause. Because of the disagreement among the parties, Plaintiffs submit that this Court’s guidance in the form of a decision on the respective motions to dismiss, and, if applicable, a period of discovery, are crucial to resolving this case. Plaintiffs remain open to discussions with opposing parties with respect to settlement, subject to the principles above, as the case proceeds, of course. Given that Plaintiffs first notified

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Federal Defendants on or about February 22, 2017, that they had been excluded from participating in the federal foster care programs at issue, and almost two years have elapsed since then, Plaintiffs respectfully request that the case move forward without further delay.

Dated: February 8, 2019

Respectfully submitted,

JOSEPH H. HUNT Assistant Attorney General
MICHELLE BENNETT Assistant Branch Director
/s/ James Powers JAMES R. POWERS (TX Bar No. 24092989) Trial Attorney, Federal Programs Branch U.S. Department of Justice, Civil Division 1100 L Street, NW, Room 11218 Washington, DC 20005 Telephone: (202) 353-0543 james.r.powers@usdoj.gov
Counsel for Federal Defendants
/s/ David T. Raimer David T. Raimer (DC Bar No. #994558) Anthony J. Dick (DC Bar No. #1015585) JONES DAY 51 Louisiana Ave. NW Washington, DC, 20001-2113 Telephone: (202) 879-3939 Facsimile: (202) 626-1700 dtraimer@jonesday.com ajdick@jonesday.com
Leon F. DeJulius, Jr. (pro hac vice) John D. Goetz (pro hac vice) JONES DAY 500 Grant Street, Suite 4500 Pittsburgh, PA 15219-2514 Telephone: (412) 391-3939 Facsimile: (412) 394-7959

HOGAN LOVELLS US LLP
By: /s/ Kenneth Y. Choe Kenneth Y. Choe (pro hac vice) Jessica L. Ellsworth (DC Bar No. #484170) Jennifer A. Fleury (DC Bar No. #187503) James A. Huang (pro hac vice) HOGAN LOVELLS US LLP 555 Thirteenth Street, N.W. Washington, D.C. 20004-1109 Telephone: (202) 637-5600 Facsimile: (202) 637-5910 jessica.ellsworth@hoganlovells.com ken.choe@hoganlovells.com jennifer.fleury@hoganlovells.com james.huang@hoganlovells.com
Alali Dagogo-Jack (pro hac vice) HOGAN LOVELLS US LLP 3 Embarcadero Center, Suite 1500 San Francisco, California 94111 Telephone: (415) 374-2338 Facsimile: (415) 374-2499 alali.dagogo-jack@hoganlovells.com
Camilla B. Taylor (pro hac vice) Jamie A. Gliksberg (pro hac vice) LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 105 West Adams, 26th Floor Chicago, IL 60603-6208 Telephone: (312) 663-4413 ctaylor@lambdalegal.org jgliksberg@lambdalegal.org

Case 1:18-cv-00378-APM Document 44 Filed 02/08/19 Page 8 of 8

lfdejulius@jonesday.com jdgoetz@jonesday.com
Counsel for Defendant United Conference of Catholic Bishops

States

Kenneth D. Upton, Jr.* (pro hac vice) AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE 1310 L Street NW, Suite 200 Washington, D.C. 20005 Telephone: (202) 466-3234 Facsimile: 202-898-0958 upton@au.org

* Licensed in Texas and Oklahoma only. Supervised by Richard B. Katskee, a member of the D.C. Bar.

Counsel for Plaintiffs

 
 Case 1:18-cv-00378-APM Document 48 Filed 06/12/19 Page 1 of 22

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________

)

FATMA MAROUF, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

ALEX AZAR, in his official capacity as

)

Secretary of the UNITED STATES

)

DEPARTMENT OF HEALTH AND HUMAN )

SERVICES, et al.,

)

)

Defendants.

)

_________________________________________ )

Case No. 18-cv-00378 (APM)

MEMORANDUM OPINION

I. INTRODUCTION

The U.S. Department of Health and Human Services (“HHS”) awards grant money and

enters into cooperative agreements with various child welfare organizations to perform services

for unaccompanied refugee children who have entered the United States. HHS grantees include

religiously affiliated organizations, such as Defendant U.S. Conference of Catholic Bishops

(“USCCB”). The child welfare services that HHS grantees provide include foster care, residential

placement, and adoption services.

Plaintiffs Fatma Marouf and Bryn Esplin live in Fort Worth, Texas. They wish to become

foster parents for an unaccompanied refugee child. In February 2017, they sought out information

about foster care programs from Catholic Charities of Fort Worth, a sub-grantee of USCCB.

Plaintiffs quickly learned that they would not be approved as foster parents. The reason: they

are a married lesbian couple. Catholic Charities of Fort Worth would not qualify them as foster

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parents because of its religious beliefs regarding same-sex marriage and raising a child within a traditional family structure.
Plaintiffs then brought this action. They assert violations of the Establishment Clause and the Equal Protection Clause and a deprivation of Substantive Due Process. Plaintiffs allege that HHS unconstitutionally awarded grant money to USCCB, despite knowing that USCCB and its sub-grantees, due to their religious beliefs, would use taxpayer funds in a manner that discriminates against same-sex couples.
The merits of Plaintiffs’ case are not yet before the court. Instead, Defendants challenge Plaintiffs’ standing to bring suit. For the reasons that follow, the court grants Defendants’ Motions to Dismiss in part. The court agrees with Defendants that no Plaintiff has taxpayer standing to assert a violation of the Establishment Clause. Because the sole cause of action brought by Plaintiff National LGBT Bar Association is the Establishment Clause claim, it is dismissed from this case. On the other hand, the court finds that Plaintiffs Marouf and Esplin have sufficiently pleaded individual standing to pursue all three causes of action. The court therefore denies the remainder of Defendants’ Motions. II. BACKGROUND
A. Factual Background 1. The Unaccompanied Refugee Minor Program and the Unaccompanied Alien Children Program
At issue in this case are two federal programs whose purpose is to provide support for the “thousands of unaccompanied refugee children” under the care of the federal government: (1) the Unaccompanied Refugee Minor Program (“URM Program”) and (2) the Unaccompanied Alien Children Program (“UC Program”). Am. Compl., ECF No. 21 [hereinafter Am. Compl.] ¶¶ 16–
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18. These programs are administered through the Office of Refugee Resettlement (“ORR”), which is housed within HHS. See id. ¶ 10.
Two pieces of legislation authorize the URM and UC Programs: the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”) and the Refugee Act of 1980. The TVPRA authorizes ORR to “award grants to, and enter into contracts with, voluntary agencies to carry out [the UC Program].” 8 U.S.C. § 1232(i). The Refugee Act authorizes ORR “to provide assistance, reimbursement to States, and grants to and contracts with public and private nonprofit agencies” to carry out the URM Program. Id. § 1522(d)(2)(A). Neither Act expressly mandates that ORR contract with or award grants to religiously affiliated organizations, or even requires ORR to engage with private entities at all. Nevertheless, ORR has chosen to administer the Programs by awarding grants to, and signing cooperative agreements with, various child welfare organizations. Such organizations are tasked with, among other things, “matching children in their care with qualified families” for fostering and adoption. Am. Compl. ¶ 20. “Religiously affiliated organizations are among the providers of federally funded care for children under the URM Program and the UC Program.” Id. ¶ 21.
Though Congress established these programs by statute, it has not funded them through specific line items. Instead, for the last four years, Congress simply has appropriated a lump-sum amount to the Administration for Children and Families—the component of HHS in which ORR is located—to carry out refugee and entrant assistance activities. See Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, Div. H, Tit. II, 132 Stat. 348, 728 (Mar. 23, 2018) (appropriating approximately $1.86 billion); Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, Div. H, Tit. II, 131 Stat. 135, 531 (May 5, 2017) (appropriating approximately $1.67 billion); Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, Div. H, Tit. II, 129 Stat.
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2242, 2612–13 (Dec. 18, 2015) (appropriating approximately $1.67 billion); Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, Div. G. Tit. II, 128 Stat. 2130, 2479 (Dec. 16, 2014) (appropriating approximately $1.56 billion). Thus, funding for the URM and UC Programs comes from a general budget appropriation.
2. The United States Conference of Catholic Bishops The United States Conference of Catholic Bishops, or USCCB, is a long-time grantee of ORR and, in fact, is the largest recipient of URM and UC Program grants. Pls.’ Mem. in Supp. of Pls.’ Opp’n to Mot. to Dismiss, ECF No. 34 [hereinafter Pls.’ Opp’n], at 17. As relevant to this case, USCCB did not itself use the grants to provide child welfare services. Instead, it disbursed the funds to a sub-grantee in Fort Worth, Texas, who in turn directly delivered services under the URM and UC Programs. In its HHS grant applications for both programs, USCCB made known its Catholic identity and how that identity would affect its use of grant funds. In its URM Program grant application, USCCB represented that it “must ensure that services provided under this application are not contrary to the authentic teaching of the Catholic Church, its moral convictions, or religious beliefs.” Am. Compl. ¶ 30. Similarly, in its UC Program grant application, USCCB stated that it “must ensure that services provided under this application are not contrary to the authentic teaching of the Catholic Church, its moral convictions, and religious beliefs in an approach that is consistent with” the agency’s Policy on Grants to Faith-Based Organizations. Id. ¶ 31. USCCB also made clear that its sub-grantees would “ensure” delivery of services consistent with the Catholic faith. USCCB notified ORR that sub-grantees would have to comply with an agreement provision titled “Catholic Identity,” under which the sub-grantee promised
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“[to] ensure that services provided to those served under this Agreement are not contrary to the

authentic teaching of the Catholic Church, its moral convictions, and religious beliefs.

Accordingly, [USCCB] expects that the Sub-recipient will provide services under this Agreement

within certain parameters . . . ” Id. ¶ 32.

At the time it submitted these grant applications, USCCB’s position on same-sex marriage

was unequivocal and a matter of public record. For instance, USCCB’s Fact Sheets concerning

adoption and foster care services, which have appeared on USCCB’s website “since at least

2013,” state that “‘[w]hen placing children with couples, Catholic Charities ensures those children

enjoy the advantage of having a mother and a father who are married.’” Id. ¶ 35 (citing

Discrimination Against Catholic Adoption Services, USCCB, http://www.usccb.org/issues-and-

action/religious-liberty/discrimination-against-catholic-adoption-services.cfm (last visited Feb.

16, 2018)). Another section of the website, titled “Frequently Asked Questions About the

Defense of Marriage,” states that “[p]lacing a child in the care of two men or two women may be

well-intentioned, but ultimately deprives the child of that which best serves his or her interests –

a mother and a father.” Id. ¶ 36 (citing Frequently Asked Questions About the Defense of

Marriage,

USCCB,

http://www.usccb.org/issues-and-action/marriage-

andfamily/marriage/promotion-and-defense-of-marriage/frequently-asked-questions-ondefense-

of-marriage.cfm (last visited Feb. 16, 2018)). Notwithstanding these clear positions on same-sex

marriage and placing children with same-sex couples, year-upon-year ORR continued to award

grant funding to USCCB to administer the URM and UC Programs. Id. ¶ 38.

3. Plaintiffs Fatma Marouf and Bryn Esplin

Plaintiffs Fatma Marouf and Bryn Esplin are a same-sex married couple living in Fort

Worth, Texas. Am. Compl. ¶ 5. They pay federal taxes. Id. Married since 2015, Plaintiffs aver

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that they are “eager to bring a child into their family” and have been actively exploring different options to do so. Id. ¶ 44.
In February 2017, Plaintiffs approached Catholic Charities of Fort Worth (“CCFW”), a sub-grantee of USCCB, about fostering an unaccompanied refugee child. Id. ¶ 46. After exchanging emails with CCFW about their foster care programs and the process for becoming a foster parent, CCFW scheduled an initial telephone interview with Plaintiffs. Id. During that call, a CCFW representative advised that prospective foster parents must “mirror the holy family.” Id. ¶ 48. Plaintiffs made clear they were a same-sex couple. The CCFW representative then advised them that did not “qualify” to foster a child. Id. The representative also stated that none of the children that CCFW serves is a member of the LGBT community. Id. ¶ 49. At the time, there were no other child welfare organizations in the Fort Worth area with whom HHS had an agreement to provide child placement services under either the URM Program or the UC Program. See Hr’g Tr. (draft), Nov. 30, 2018, at 14.1
Plaintiffs immediately lodged a complaint with ORR. On or about February 22, 2017, Plaintiff Marouf wrote to the general email address for ORR and informed the agency that CCFW had discriminated against them on the basis of their same-sex marital status. Id. ¶ 51. Marouf did not receive a response until April 14, 2017. Even then, ORR simply asked for “the names of the individuals at CCFW” who had advised her that Plaintiffs would not qualify as foster parents. Id. After inquiring with CCFW, Marouf learned the name of the representative with whom she and Esplin had spoken and, on May 1, 2017, forwarded the name to ORR. Id. ¶¶ 52–53. Other
1 In the interim, at the court’s suggestion, HHS has identified and is in the process of contracting with a child welfare organization that is willing to place children with same-sex couples. See Jt. Status Rpt., ECF No. 44; Notice and Unopposed Mot. for Status Conference, ECF No. 46. Though this agreement is not yet final, the court very much appreciates the agency’s efforts.
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than a return email thanking Marouf for the information, Plaintiffs received no additional communication from ORR. Id. ¶ 53.
B. Procedural Background Plaintiffs filed this case on February 20, 2018. See Compl., ECF No. 1. Along with USCCB, they named as defendants HHS; Alex Azar, in his official capacity as the Secretary of HHS; Steven Wagner, in his official capacity as Acting Assistant Secretary of the Administration for Children and Families; the Administration for Children and Families; Scott Lloyd, in his official capacity as Director of ORR; and ORR (“Federal Defendants”). See id. On March 22, 2018, Plaintiffs amended their complaint to add the National LGBT Bar Association as a plaintiff. See Am. Compl. The National LGBT Bar Association is a non-profit with more than 10,000 members who are “supportive of lesbian, gay, bisexual, and transgender (‘LGBT’) rights,” id. ¶ 7, and it specifically brought this “action on behalf of its members who are federal taxpayers,” id. ¶ 8. Plaintiffs’ Amended Complaint advances three claims: (1) violation of the Establishment Clause, (2) violation of the Equal Protection Clause, and (3) violation of substantive rights under the Due Process Clause. Id. ¶¶ 58–91. Each claim, at its core, alleges that the Federal Defendants are unlawfully “funding [ ] certain child welfare organizations that perform federal taxpayerfunded services relating to unaccompanied refugee children in federal care and custody in a manner that impermissibly discriminates against same-sex couples who are prospective foster and adoptive parents. The organizations use religious doctrine regarding same-sex relationships to categorically exclude such couples from applying to be foster parents.” Id. ¶ 1. All three Plaintiffs assert standing to sue Defendants for a violation of the Establishment Clause based on their status as federal taxpayers. Id. ¶ 72. Additionally, Marouf and Esplin assert that they have
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standing to assert all three claims, as they are individuals harmed by federal government action or inaction. See Pls.’ Opp’n at 3.
On May 21, 2018, the Federal Defendants filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1), asserting that no Plaintiff has standing as to any claim and therefore the court lacks subject matter jurisdiction. See Fed. Defs.’ Mot. to Dismiss, ECF No. 28; Fed. Defs.’ Stmt. of Pts. and Auth., ECF No. 28-1 [hereinafter Fed. Defs.’ Stmt.]. USCCB separately filed a Motion to Dismiss on the same day, likewise arguing that Plaintiffs lack standing to sue. See Def. USCCB Mot. to Dismiss, ECF No. 29; Def. USCCB’s Mem. of Pts. and Auth., ECF No. 29-1 [hereinafter USCCB’s Mem.]. The court held oral argument on Defendants’ motions on November 30, 2018. III. LEGAL STANDARD
Every plaintiff in federal court bears the burden of showing that she meets the “irreducible constitutional minimum” of Article III standing: (1) injury in fact, (2) causation, and (3) redressability. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). At the motion to dismiss stage, a plaintiff “must state a plausible claim that [she has] suffered an injury in fact fairly traceable to the actions of the defendant that is likely to be redressed by a favorable decision on the merits.” Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015) (quoting Humane Soc’y of the U.S. v. Vilsack, 797 F.3d 4, 8 (D.C. Cir. 2015)). The court must accept as true all well-pleaded factual contentions and draw all reasonable inferences therefrom, but it need not accept thread-bare recitals of the elements of standing or legal conclusions couched as an assertion of fact. See Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015).
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In deciding a Rule 12(b)(1) motion, the court “may consider materials outside the pleadings[.]” Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) (citation and alteration omitted). IV. DISCUSSION
The court will begin its discussion by addressing taxpayer standing as to all Plaintiffs for the Establishment Clause claim. It then will turn to Marouf and Esplin’s individual standing as to all three claims.
A. Taxpayer Standing 1. General Principles
The Supreme Court has consistently held that a “taxpayer’s interest in ensuring that appropriated funds are spent in accordance with the Constitution does not suffice to confer Article III standing.” In re Navy Chaplaincy, 534 F.3d 756, 761 (D.C. Cir. 2008). Beginning with Frothingham v. Mellon, the Court has routinely rejected assertions of taxpayer standing, with few exceptions. 262 U.S. 447 (1923) (holding that the “minute and indeterminable” interest of a federal taxpayer in “the moneys of the treasury” offers no basis to challenge an expenditure as a violation of the Tenth Amendment).
The Supreme Court cracked the door open to taxpayer standing in 1968, with its decision in Flast v. Cohen, 392 U.S. 83, 88 (1968). It permitted the plaintiffs in that case to challenge the expenditure of federal funds used for the “instruction . . . and for guidance in religious and sectarian schools” and the “purchase of textbooks and instructional and library materials for use in religious and sectarian schools” as a violation of the Establishment Clause. Id. at 87. The Court observed that “[t]he nexus demanded of federal taxpayers” to establish standing consists of two elements. Id. at 102. First, federal taxpayers may challenge “the unconstitutionality only
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of exercises of congressional power under the taxing and spending clause of Art. I, s 8, of the Constitution.” Id. Second, taxpayers “must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power.” Id. at 102–03. Thus, the Court explained, a plaintiff could establish taxpayer standing only if challenging a “congressional action under the taxing and spending clause [alleged to be] in derogation of those constitutional provisions which operate to restrict the exercise of the taxing and spending power,” such as the Establishment Clause. Id. at 106. Applying that standard, the Court found that the plaintiffs in Flast qualified for taxpayer standing.
Subsequent Supreme Court cases have made clear that “Flast is a very narrow exception to the general bar against taxpayer standing” and that the two-part test must be applied with rigor. See In re Navy Chaplaincy, 534 F.3d at 761; see also Kurtz v. Baker, 829 F.2d 1133, 1139 (D.C. Cir. 1987) (stating that “Flast is the only Supreme Court decision holding that a taxpayer has standing to complain about alleged government misuse of tax revenues in violation of the establishment and free exercise clauses of the First Amendment,” and noting that “the Court interpreted Flast to apply narrowly to challenges directed only at exercises of congressional power”) (cleaned up)). For instance, in Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., the Court denied the plaintiffs’ claim of standing where the challenged action—the cost-free transfer of a 77-acre tract of surplus military property to a religious college—was executed by the Executive Branch through the Secretary of Health, Education, and Welfare, rather than by Congress. 454 U.S. 464, 467–68, 482 (1982). The Court found that the law enabling the Executive Branch to make the challenged property transfer was passed pursuant to Congress’s power under the Property Clause, U.S Const. Art. IV, § 3, cl. 2. as
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opposed to the Taxing and Spending Clause, id. Art. I, § 8, as required by Flast. See Valley Forge, 454 U.S. at 480. The plaintiff therefore lacked taxpayer standing. See id. at 480–82.
In Bowen v. Kendrick, the Court allowed taxpayer standing once more, but under unique facts. See 487 U.S. 589, 589–620 (1988). In that case, the statute at issue expressly appropriated funds for religious organizations to reduce teen pregnancy. Congress had “expressly enlist[ed] the involvement of religiously affiliated organizations in the federally subsidized programs.” Id. at 606. Pivotal to the Court’s conclusion in Bowen was the recognition that the challenged legislation was “at heart a program of disbursement of funds pursuant to Congress’ taxing and spending powers,” evidenced by the fact that the plaintiffs’ claims “call[ed] into question how the funds authorized by Congress [were] being disbursed pursuant to the [the legislation]’s statutory mandate.” Id.; Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 607 (2007) (same). Thus, the distinguishing feature of Bowen was Congress’s express authorization of funding for religious organizations.
In Hein, however, the Court dispelled any notion that Bowen revitalized Flast. There, the plaintiffs brought suit to challenge an action by the President, who had “issued an executive order creating the White House Office of Faith-Based and Community Initiatives within the Executive Office of the President” in order to “ensure that private and charitable community groups, including religious ones [ ] have the fullest opportunity permitted by law . . . to compete equally for federal assistance.” Hein, 551 U.S. at 593-93 (internal quotation marks and citations omitted). In finding that the plaintiffs lacked standing, the Court reiterated the limits of Flast:
Because almost all Executive Branch activity is ultimately funded by some congressional appropriation, extending the Flast exception to purely executive expenditures would effectively subject every federal action—be it a conference, proclamation, or speech—to Establishment Clause challenge by any taxpayer in federal court. To see the wide swathe of activity that respondents’ proposed rule
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would cover, one need look no further than the amended complaint in this action, which focuses largely on speeches and presentations made by Executive Branch officials.
Id. at 610–11. With that explanation, the Court in Hein “largely . . . confined [Flast] to its facts.” Id. at 609. And though some members of the Court were prepared to overrule Flast, ultimately the Court “[left] Flast as [it] found it.” Id. at 615.
Following Hein, the D.C. Circuit in In re Navy Chaplaincy stressed the limits of Flast. There, the plaintiffs alleged that the Navy had discriminated in favor of Catholic chaplains in certain aspects of its retirement system, and they asserted standing as “taxpayers who object to the Navy’s allegedly discriminatory operation of its chaplaincy program.” 534 F.3d at 761. In finding that “plaintiffs’ claim does not fit within the narrow Flast exception,” the court reasoned:
No legislative enactment expressly authorizes or appropriates funds for the Navy to favor Catholic chaplains in its retirement system. Plaintiffs cite, for example, the statutes establishing the Navy Chaplain Corps, but those statutes make no reference to denominational category, only to chaplains generally. See 10 U.S.C. §§ 5142, 5150. And plaintiffs, who themselves are chaplains, obviously do not contend that congressional legislation establishing the Navy Chaplaincy itself violates the Establishment Clause; they merely want the Navy to operate the Chaplain Corps differently.
Id. at 762. In other words, the court explained, the plaintiffs’ contention that the Navy was acting contrary to law—as opposed to expending money as expressly authorized or mandated by Congress—“directly undermine[d] any claim to taxpayer standing.” Id.
2. Analysis Applying the foregoing principles compels the conclusion that Plaintiffs in this case lack taxpayer standing. Just as in In re Navy Chaplaincy, this case involves “[n]o legislative enactment [that] expressly authorizes or appropriates funds” to HHS to favor Catholic child welfare organizations such as USCCB. Id.; see also Hein, 551 U.S. at 608 (rejecting taxpayer standing
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where the challenged expenditures “were not expressly authorized or mandated by any specific congressional enactment”). To the contrary, Congress has funded the URM and UC Programs through general appropriations whose overarching purpose is to carry out “refugee and entrant assistance activities authorized” by multiple statutes. See, e.g., Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, 132 Stat. at 728; Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, 131 Stat. at 531. There is no mention of either the URM Program or the UC Program in any of in these appropriation measures, let alone the specific action challenged by Plaintiffs here—grantmaking to a religiously affiliated child welfare organization. Plaintiffs thus are actually contesting a discretionary executive action—not a legislative directive—as to which taxpayer standing under Flast is not available. See Dumont v. Lyon, 341 F. Supp. 3d 706, 726– 730 (E.D. Mich. 2018) (holding, in a nearly identical case, that the plaintiffs, who were turned away by a state-contracted and taxpayer-funded child placement agency based on their same-sex relationship, lacked taxpayer standing because “the legislative enactment at issue does not expressly authorize the religiously-challenged expenditure at issue”).
Plaintiffs advance several arguments to avoid this result, none of which are convincing. Plaintiffs assert that the “rule” of Flast, Hein, and Bowen is that “taxpayer standing exists in cases where Congress specifically appropriated funds for programs enacted under statutory schemes with a purpose of disbursing those funds, understanding that those funds might be distributed to religious organizations, and the disbursement of those funds is alleged to inappropriately favor or disfavor religion.” Pls.’ Opp’n at 15. But this is an inaccurate recitation of the law. As the D.C. Circuit made clear in In re Navy Chaplaincy, taxpayer standing under Flast requires a “legislative enactment [that] expressly authorizes or appropriates funds” for the challenged
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expenditure itself. 534 F.3d at 762 (emphasis added). It is therefore not enough that taxpayer funds “might be distributed to religious organizations.” Pls.’ Opp’n at 15 (emphasis added).
Next, Plaintiffs contend that Congress has in fact “specifically contemplate[d] disbursement of funds to certain entities to provide certain services to certain refugees and immigrants, including certain unaccompanied youth,” thereby giving rise to taxpayer standing. Pls.’ Opp’n at 16 (emphasis added). Plaintiffs’ repeated use of the word “certain” is telling. It reveals the absence of any specific designation of funds by Congress for any religious purpose or organization. As discussed above, none of the Consolidated Appropriations Acts that fund child placement services for unaccompanied minors specifically mention the URM Program or the UC Program, let alone direct that taxpayer funds be provided to religiously affiliated organizations in general, or to USCCB in specific, to implement those programs. Congress’s general appropriations that fund the URM and UC Programs cannot, without more, facilitate taxpayer standing. See Hein, 551 U.S. at 608 n.7 (“Nor is it relevant that Congress may have informally ‘earmarked’ portions of its general Executive Branch appropriations to fund the offices and centers whose expenditures are at issue.”).
Unable to find a textual hook in any piece of legislation, Plaintiffs advance a secondary argument. They maintain that Congress “plainly understood” it was funding religious organizations because HHS delivered annual reports disclosing that “USCCB receives the majority of grant funds under the URM and UC programs,” thus providing the required nexus to Congress’s tax and spending power. Pls.’ Opp’n at 17. But Plaintiffs cite no case that stands for the proposition that Congress’s “plain understanding” of how taxpayer funds are actually being spent is sufficient to establish taxpayer standing. If Congress’s mere knowledge of the challenged expenditures were sufficient to establish taxpayer standing, it would stretch that concept well
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beyond the outer limits established by the Court in Hein. Indeed, it is difficult to conceive of what expenditures would be off limits to an Establishment Clause challenge under Plaintiffs’ proposed interpretation, as Congress presumably knows how the Executive Branch is spending taxpayer money before reauthorizing it, even if through a general appropriation. Cf. Hein, 551 U.S. at 614 (“Almost all Executive Branch activities are ultimately funded by some congressional appropriation, whether general or specific, which is in turn financed by tax receipts.”). Congress’s purported knowledge of how the Executive Branch has spent taxpayer funds is therefore not enough to confer taxpayer standing.
Finally, Plaintiffs make a policy argument, asserting that if taxpayer standing is denied here, “Establishment Clause violations uniquely could go unchecked in many instances.” Pls.’ Opp’n at 21. But the Court rejected that very argument in Hein. See 551 U.S. at 614 (rejecting the “parade of horribles that [respondents] claim could occur if Flast is not extended to discretionary Executive Branch expenditures”). Hein makes clear that taxpayer standing is not an all-access pass to the federal courts to challenge Executive Branch expenditures that might run afoul of the Establishment Clause. See Hein, 551 U.S. at 615 (refusing to “expand[] [Flast] to the limit of its logic”). Other means are available to curtail Executive Branch encroachment of the Establishment Clause, including Congressional action and, as will be seen, challenges “by plaintiffs who would possess standing based on grounds other than taxpayer standing.” Id. Thus, Plaintiffs assertion that, absent recognition of taxpayer standing in this case, Executive Branch abuses might go unchecked is unpersuasive.
For the reasons discussed, all Plaintiffs lack taxpayer standing. As taxpayer standing is the only ground upon which Plaintiff National LGBT Bar Association presses its Establishment Clause claim, it is dismissed from this action.
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C. Individual Standing But all is not lost for individual plaintiffs Marouf and Esplin. They also assert individual standing to challenge the Federal Defendants’ actions. Defendants do not contest that Marouf and Esplin have satisfied the first element of standing, an injury in fact. See Fed. Defs.’ Stmt. at 15; see also Pls.’ Opp’n at 4 (asserting as injury the “lost opportunity to foster a child,” and “the act of shutting the door to same-sex couples’ foster parenting applications demeans and stigmatizes these families”). Nor could they. Cf. Allen v. Wright, 468 U.S. 737, 755 (1984) (recognizing that stigmatizing injury caused by racial discrimination of plaintiffs who are personally denied equal treatment is sufficient to confer standing); see also Doe 2 v. Shanahan, 917 F.3d 694, 739 n.8 (D.C. Cir. 2019) (Williams, J., concurring). Instead, Defendants argue that Plaintiffs’ injuries are not “fairly traceable to the Federal Defendants because” a third party, Catholic Charities of Fort Worth, “caused the alleged injury by application of its own criteria for foster parents.” Fed. Defs.’ Stmt. at 15; see also USCCB Mem. at 8 (“[W]hen the government provides funding to a grant recipient that subsequently makes an independent decision that allegedly injures a third party, that third party does not have standing to challenge the legality of the government funding.”). Defendants also contend that “individual Plaintiffs cannot show that their alleged injury is likely to be redressed by the relief requested against the Government.” Fed. Defs.’ Stmt. at 17; see also USCCB Mem. at 9–11. To establish standing, Marouf and Esplin must show that their injury is “fairly traceable to the defendant’s allegedly unlawful conduct” and “likely to be redressed by the requested relief.” Lujan, 504 U.S. at 590. When, as here, “plaintiffs’ claim hinges on the failure of government to prevent another party’s injurious behavior, the ‘fairly traceable’ and redressability
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inquiries appear to merge.” Freedom Republicans, Inc. v. Fed. Election Comm’n, 13 F.3d 412, 418 (D.C. Cir. 1994). The court therefore addresses these requirements as one.
The troubling consequence of Defendants’ position, if accepted, is apparent on its face. According to the Federal Defendants, a federal agency cannot be held to account for a grantee’s known exclusion of persons from a federally funded program on a prohibited ground. That is an astonishing outcome. Surely, the government would not take this position if, say, Plaintiffs here were excluded from fostering a child based on their gender (both are women), national origin (Marouf is the daughter of Egyptian and Turkish immigrants), or religious faith (Marouf was raised a Muslim, Esplin a Mormon). Yet, despite conceding that there is no agency policy that prevents child placement with same sex couples, see Hr’g Tr. (draft), Nov. 30, 2018, at 5–6, the Federal Defendants in this case wish to avoid the responsibility that comes with being good stewards of federal funds. They cannot do so.
The D.C. Circuit has recognized that a “federal court may find that a party has standing to challenge government action that permits or authorizes third-party conduct that would otherwise be illegal in the absence of the Government’s action.” Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 940 (D.C. Cir. 2004); see also Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426, 442 (D.C. Cir. 1998) (en banc) (“Both the Supreme Court and this circuit have repeatedly found causation where a challenged government action permitted the third party conduct that allegedly caused a plaintiff injury, when that conduct would have otherwise been illegal. Neither court has ever stated that the challenged law must compel the third party to act in the allegedly injurious way.”). So, for example, in Animal Legal Defense Fund, Inc. v. Glickman, the D.C. Circuit sitting en banc allowed a plaintiff to challenge U.S. Department of Agriculture regulations concerning the treatment of primates by zoos and other exhibitors of
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animals. 154 F.3d at 440–44. Although the plaintiff’s claimed aesthetic injury resulted from the actions of third parties that maintained captive primates in allegedly inhuman conditions, the court held that the plaintiff had established causation because the plaintiff alleged that the regulations permitted exhibitors to maintain primates in inhumane conditions, even though such conduct would have been illegal in the absence of those regulations. See id. at 438–43. The plaintiff also established causation by asserting that agency inspectors had visited one of the exhibitors and, notwithstanding the alleged inhumane conditions, determined that the conditions complied with agency regulations. See id. at 439–40. A favorable decision, the court held, would redress the plaintiff’s injury because animal exhibitors would no longer be able to keep animals in inhumane living conditions without violating the law. See id. at 443–44. In cases like Animal Legal Defense Fund, “causation and redressability thus are satisfied . . . because the intervening choices of third parties are not truly independent of government policy.” Nat’l Wrestling Coaches Ass’n, 366 F.3d at 940–41.
Plaintiffs’ allegations here satisfy both the causation and redressability requirements. Recall, the Federal Defendants do not take the position that it is lawful to administer a federal program in a manner that disfavors same-sex couples. Defendants nevertheless issued grants to USCCB knowing that USCCB and its sub-grantees would not place a child with a same-sex couple. As Plaintiffs allege in their Complaint, USCCB’s grant applications expressly stated that USCCB and its sub-grantees “must ensure that services provided . . . are not contrary to the authentic teaching of the Catholic Church, its moral convictions, and religious beliefs . . .” Am. Compl. ¶¶ 31–32. At the time, USCCB’s position on same-sex marriage and the placement of children with same-sex couples was a matter of public record. See id. ¶¶ 35–37. So, too, were the teachings, convictions, and beliefs of the Catholic Church. Thus, “[w]hen ORR awarded the
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URM and UC grants to USCCB for the relevant period, it was on notice that USCCB’s religious beliefs disfavored same-sex relationships.” Id. ¶ 38. Accordingly, by partnering with USCCB to deliver services under the URM and UC Programs, the Federal Defendants “permit[ted] or authorize[d] third-party conduct,” i.e., disfavoring sex-same couples in the placement of unaccompanied refugee minors, “that would otherwise be illegal in the absence of the Government’s action.” Nat’l Wrestling Coaches Ass’n, 366 F.3d at 940.
And there is more. Plaintiffs allege that they immediately notified ORR about their disqualification as foster parents based on their same-sex relationship. Id. ¶¶ 51–53. Yet, ORR did nothing to address, let alone remedy, the exclusion. See id. ¶¶ 53, 57. This inaction permitted USCCB to continue to use federal funds in a manner that disfavored same-sex couples. These allegations are sufficient at the motion-to-dismiss stage to establish both the “causative link” between government action (or inaction) and plaintiff’s injury, Renal Physicians Ass’n v. U.S. Dep’t of Health & Human Servs., 489 F.3d 1267, 1276 (D.C. Cir. 2007) (stating that a plaintiff must do more than “simpl[y] . . . plead this causative link”), and that their injury will be redressed by a favorable decision, see Lujan, 504 U.S. at 561; see also Dumont, 341 F. Supp. 3d at 722–26 (finding that same-sex couple plaintiffs had adequately alleged causation and redressability in nearly identical circumstances).
For their part, Defendants rely largely on one case, Freedom Republicans, Inc. v. Federal Election Commission, 13 F.3d 412, to support their contrary position. See Fed. Defs.’ Stmt. at 18–19; USCCB Mem. at 8–9. The plaintiffs in Freedom Republicans challenged the Commission’s funding of the Republican Party’s nominating process, which they alleged was racially discriminatory. The plaintiffs demanded that the Commission act to prevent the alleged discriminatory practice or cut off federal funding. See Freedom Republicans, 13 F.3d at 414.
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The D.C. Circuit held that the plaintiffs lacked standing because the elements of causation and redressability were absent. See id. at 416–18. The court held that “the injury alleged in Freedom Republicans’ complaint is not fairly traceable to any encouragement on the part of the government, but appears instead to be the result of decisions made by the Party without regard to funding implications.” Id. at 419. Moreover, the court held that, “[i]n the absence of any evidence that the perpetuation of the [nominating] scheme is founded on other than pragmatic political considerations, we would be venturing into the realm of pure speculation were we to attempt to foretell the Party’s response to termination of its present funding.” Id. USCCB analogizes its religious view on same-sex marriage to the Republican Party’s nominating system; that is, USCCB argues that its belief regarding placing children with same-sex couples is unconnected to federal funding and that belief would not change even if federal funding were pulled from USCCB.
Though this case bears some resemblance to Freedom Republicans, it is different in two critical respects. First, USCCB’s very ability to make decisions regarding the eligibility of samesex couples as foster parents under the URM and UC Programs is enabled by their selection as a federal grantee, whereas the Republican Party’s nominating process was put in place decades before it ever received federal funding. In other words, unlike a political party’s creation of a nominations process, USCCB would have no say in qualifying persons to be a foster parent to unaccompanied refugee minors but for its receipt of federal funds. Second, unlike the plaintiffs in Freedom Republican who called on the FEC to adopt regulations to force the party to alter its nominating process, Plaintiffs here do not seek to use the levers of federal power to change USCCB’s position on same-sex marriage. Instead, they seek injunctive relief requiring the Federal Defendants to ensure that they may apply to be foster or adoptive parents under the URM
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Program or the UC Program without disfavoring them based on their sexual orientation. Thus, they seek a change to the federal program itself, not USCCB’s views on same-sex marriage. Nor do Plaintiffs demand an order compelling USCCB to place a child with them, notwithstanding its religious views on same-sex marriage.2 Accordingly, this case is not controlled by Freedom Republicans.
Nor does the Supreme Court’s decision in Simon v. Eastern Kentucky Welfare Rights Organization compel a different result, as USCCB insists. See USCCB Mem. at 8–9. In Simon, a group of indigent patients challenged an IRS Revenue Ruling that afforded favorable tax treatment to nonprofit hospitals that offered indigent patients emergency treatment only. 426 U.S. 26, 28 (1976). The plaintiffs claimed that the Revenue Ruling “encouraged” hospitals to deny services to indigent patients. See id. at 42. The Court held that the plaintiffs lacked standing because “[i]t is purely speculative whether the denials of service specified in the complaint fairly can be traced to petitioners’ ‘encouragement’ or instead result from decisions made by the hospitals without regard to the tax implications. It is equally speculative whether the desired exercise of the court’s remedial powers in this suit would result in the availability to respondents of such services.” Id. at 42–43. In this case, by contrast, a positive finding of causation and redressability requires no speculation at all. As discussed, the Federal Defendants caused Plaintiffs’ injury both by creating a system that permits religiously affiliated grant recipients to deny federally funded services to same-sex couples and by failing to take any action after Plaintiffs gave notice of what happened to them. Moreover, the relief that Plaintiffs seek requires
2 In their prayer for relief, Plaintiffs suggest as injunctive relief placement of a child on a non-discriminatory basis through USCCB or stripping USCCB of funding. See Am. Comp. at 24. Plaintiffs have since backed off such demand for relief. See Pls.’ Opp’n at 11 (“Plaintiffs do not demand that USCCB necessarily render the determination as to Fatma and Bryn’s eligibility to be foster parents, or make the decision to place a child with Fatma and Bryn.”). Indeed, Plaintiffs have signaled openness to relief that “accomodat[es] the religious views of URM and UC grantees,” so long as it does not “ultimately restrict placement options based solely on USCCB’s religious doctrine and does not impose materially unequal burdens, stigma, or indignity on religiously disfavored applicants relative to favored ones.” Id.
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no speculation. Ordering the Federal Defendants to develop a system that removes barriers to same-sex couples becoming foster parents and evaluates their eligibility by the same criteria as any heterosexual couple or person will make Plaintiffs whole. “No speculative inferences are necessary here to conclude that the relief requested will result in the Plaintiffs receiving the dignity and equal treatment they seek.” Dumont, 341 F. Supp. 3d at 725 (similarly distinguishing Simon). IV. CONCLUSION
For the reasons discussed in this Memorandum Opinion, the court grants in part and denies in part Defendants’ Motions to Dismiss. Plaintiff National LGBT Bar Association is dismissed from this case for lack of standing. Plaintiffs Marouf and Esplin have standing not as taxpayers, but as individuals. Plaintiffs Marouf and Esplin therefore may pursue each of their constitutional claims.

Dated: June 12, 2019

Amit P. Mehta United States District Court Judge

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 Case 1:18-cv-00378 Document 1 Filed 02/20/18 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

________________________________________

)

FATMA MAROUF and BRYN ESPLIN, a )

married couple,

)

1060 Cotton Depot Lane #640,

)

Fort Worth, TX 76102;

)

)

Plaintiffs,

)

)

v.

)

)

ALEX AZAR, in his official capacity as )

Secretary of the UNITED STATES

) Civil Action No. 1:18-cv-378

DEPARTMENT OF HEALTH AND

)

HUMAN SERVICES,

) COMPLAINT FOR

200 Independence Avenue, S.W.,

) DECLARATORY AND

Washington, D.C. 20201;

) INJUNCTIVE RELIEF AND

) MONETARY DAMAGES

UNITED STATES DEPARTMENT OF )

HEALTH AND HUMAN SERVICES,

)

200 Independence Avenue, S.W.

)

Washington, D.C. 20201;

)

)

STEVEN WAGNER, in his official

)

capacity as Acting Assistant Secretary for )

the ADMINISTRATION FOR

)

CHILDREN AND FAMILIES,

)

330 C Street, S.W.,

)

Washington, D.C. 20201;

)

)

ADMINISTRATION FOR CHILDREN )

AND FAMILIES,

)

330 C Street, S.W.,

)

Washington, D.C. 20201;

)

)

SCOTT LLOYD, in his official capacity as )

Director of the OFFICE OF REFUGEE )

RESETTLEMENT,

)

330 C Street, S.W.,

)

Washington, D.C. 20201;

)

)

)

Case 1:18-cv-00378 Document 1 Filed 02/20/18 Page 2 of 26

OFFICE OF REFUGEE

)

RESETTLEMENT,

)

330 C Street, S.W.,

)

Washington, D.C. 20201; and

)

)

UNITED STATES CONFERENCE OF )

CATHOLIC BISHOPS, a non-profit

)

corporation,

)

3211 Fourth Street, N.E.,

)

Washington, D.C. 20017

)

)

Defendants.

Case 1:18-cv-00378 Document 1 Filed 02/20/18 Page 3 of 26
Introduction 1. Plaintiffs Fatma Marouf and Bryn Esplin bring this action seeking declaratory and injunctive relief and monetary damages against Alex Azar, in his official capacity as Secretary of the United States Department of Health and Human Services; United States Department of Health and Human Services; Steven Wagner, in his official capacity as Acting Assistant Secretary for the Administration for Children and Families; Administration for Children and Families; Scott Lloyd, in his official capacity as Director of the Office of Refugee Resettlement; and Office of Refugee Resettlement (together, “Federal Defendants”) for unlawful funding of certain child welfare organizations that perform federal taxpayer-funded services relating to unaccompanied refugee children1 in federal care and custody in a manner that impermissibly discriminates against same-sex couples who are prospective foster and adoptive parents. The organizations use religious doctrine regarding same-sex relationships to exclude such couples categorically from applying to be foster parents. By enabling federal taxpayer-funded child welfare services, for children in federal care and custody, to be performed in reliance on such doctrine, Federal Defendants are depriving children of the opportunity to be placed in eligible homes that serve their best interests. Federal Defendants are also impermissibly denying eligible foster and adoptive parent applicants, such as Plaintiffs, the opportunity to provide loving homes to children in need on account of
1 Plaintiffs use the term “unaccompanied refugee children” to refer to children served under either the Unaccompanied Refugee Minor Program or the Unaccompanied Alien Children Program.
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the organizations’ religious beliefs regarding the applicants’ sexual orientation and sex and the same-sex character of their marriage. Federal Defendants’ actions are contrary to the best interests of children, whose welfare Federal Defendants are charged with protecting, and violate the United States Constitution.
Jurisdiction and Venue 2. This case arises under the Constitution of the United States, and presents federal questions within this Court’s jurisdiction pursuant to 28 U.S.C. § 1331. 3. This Court has jurisdiction to grant the requested declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202, Federal Rules of Civil Procedure 57 and 65, and the inherent equitable powers of the Court. 4. Venue is proper in this District because:
 pursuant to 28 U.S.C. § 1391(b)(1), Defendant United States Conference of Catholic Bishops is an entity incorporated under the laws of the District of Columbia with its principal place of business in the District of Columbia, and the remaining Defendants are officers or employees of an agency of the United States in their official capacities or agencies of the United States; and
 pursuant to 28 U.S.C. § 1391(b)(2), Defendants conduct a continuous and systematic portion of their business in this District, where a substantial part of the events giving rise to the claims,
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including the unlawful administration of federal funds by Federal Defendants, occurred.
Parties 5. Plaintiffs Fatma Marouf (“Fatma”) and Bryn Esplin (“Bryn”), both women, are a married lesbian couple. Plaintiffs are residents of Fort Worth, Texas, and federal taxpayers. Their taxpayer dollars contribute to the administration of federal child welfare programs, including those at issue in this action. In accordance with the United States Constitution, Plaintiffs object to paying for federally funded child welfare services that are provided in a discriminatory manner, based on religious principles to which they do not subscribe, that fail to serve the best interests of children. 6. Plaintiffs suffered the additional harms alleged in this Complaint when organizations receiving federal funds denied them the opportunity to be foster parents on the basis of the organizations’ religious beliefs regarding their sexual orientation and sex and the same-sex character of their marriage. Federal Defendants enabled such discrimination against Plaintiffs. 7. Plaintiffs bring suit against Defendant Alex Azar in his official capacity as Secretary of the United States Department of Health and Human Services. In that capacity, Defendant Azar oversees the United States Department of Health and Human Services. 8. Plaintiffs bring suit against Defendant United States Department of Health and Human Services (“HHS”), which is headquartered in the District
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of Columbia, and is charged with enhancing and protecting Americans’ health and well-being via the provision of health and human services. HHS is the federal agency that is responsible for overseeing the Office of Refugee Resettlement’s functions and responsibilities involving the care and custody of children under the Unaccompanied Refugee Minor (“URM”) Program and the Unaccompanied Alien Children (“UC”) Program.
9. Plaintiffs bring suit against Defendant Steven Wagner in his official capacity as Acting Assistant Secretary for the Administration for Children and Families. In that capacity, Defendant Wagner oversees the Administration for Children and Families.
10. Plaintiffs bring suit against Defendant Administration for Children and Families (“ACF”), which is headquartered in the District of Columbia, and is the division of HHS that is responsible for implementing certain human services programs, including those focused on fostering the economic and social welfare of youth and families, such as the URM Program and the UC Program administered by ORR.
11. Plaintiffs bring suit against Defendant Scott Lloyd in his official capacity as Director of the Office of Refugee Resettlement. In that capacity, Defendant Wagner oversees the Office of Refugee Resettlement.
12. Plaintiffs bring suit against Defendant Office of Refugee Resettlement (“ORR”), which is headquartered in the District of Columbia, and is
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the office within ACF that is responsible for the care and custody of children in the UC Program and the URM Program.
13. Plaintiffs bring suit against Defendant United States Conference of Catholic Bishops (“USCCB”), a non-profit organization incorporated in the District of Columbia with its headquarters and principal place of business located in the District of Columbia. USCCB has a legal and financial interest relating to the subject of this action. Disposing of this action in USCCB’s absence would necessarily impair the interests it has by virtue of its grants, cooperative agreements, and funding from HHS. Because USCCB is subject to service and its participation will not deprive this Court of subject matter jurisdiction, its joinder pursuant to Federal Rule of Civil Procedure 19(a)(1) is required to permit this Court to accord complete relief among the parties, without exposing Federal Defendants to the risk of inconsistent obligations.
Factual Allegations The Unaccompanied Refugee Minor Program and the Unaccompanied Alien Children Program
14. The federal government currently cares for thousands of unaccompanied refugee children, many of whom are fleeing violence.
15. Federal Defendants administer the URM Program, which provides for the care of children who are under the age of 18, unaccompanied by an adult, and any of the following: refugees, entrants, asylees, victims of trafficking, certain minors with special immigrant juvenile status, or U visa holders.
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16. Federal Defendants also administer the UC Program, which provides for the care of children who arrive in the United States unaccompanied by a parent or legal guardian, and who lack lawful immigration status in the United States. When such children are apprehended by the United States Department of Homeland Security, they are assigned to the care and custody of ORR.
17. ORR’s responsibilities under both programs include awarding and administering grants to and cooperative agreements with child welfare organizations, which can include religiously affiliated organizations, to perform child welfare services on ORR’s behalf, and ensuring that such organizations abide by applicable federal laws in providing such federally funded services.
18. Through grants to and cooperative agreements with child welfare organizations, ORR provides services to the children in its custody, including but not limited to shelter, foster care and residential placement, and adoption services. ORR is charged with guaranteeing that the best interests of the children are paramount in implementing its child welfare programs. The child welfare organizations to which ORR awards grants and cooperative agreements are charged with, among other things, matching children in their care with qualified families in accordance with ORR’s standards of care.
19. Religiously affiliated organizations are among the providers of federally funded care for children under the URM Program and the UC Program. Although the organizations that receive federal grants and cooperative agreements under these programs may be faith-based organizations, they may not use federal
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funds to proselytize or for other sectarian purposes, such as restricting access to federally funded child welfare services based on faith-based principles.
20. ORR has an obligation to ensure that the organizations that receive grants or cooperative agreements to provide federal child welfare services relating to unaccompanied refugee children in its custody do so without discriminating against foster or adoptive parent applicants based on their sexual orientation, their sex, the same-sex character of their marriage, or the religious beliefs of the organizations.
21. There are more children in the care of Federal Defendants under the URM Program and the UC Program than there are eligible foster or adoptive homes seeking placement or adoption of such children.
22. There is no valid basis for the government to prefer different-sex couples over same-sex couples when considering or approving would-be foster or adoptive parents or making placement or adoption decisions. The scientific community has reached consensus that children reared by lesbian or gay parents are just as likely to be well-adjusted as children of heterosexual parents. This consensus has been recognized by every major professional organization dedicated to children’s health and welfare, including: the American Academy of Pediatrics, the American Psychological Association, the American Medical Association, the National Association of Social Workers, and the Child Welfare League of America. There is no basis in social science or child welfare principles for categorically barring same-sex spouses from being foster or adoptive parents.
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23. When Federal Defendants enable organizations to turn away qualified foster or adoptive parent applicants based on criteria unrelated to child welfare, such as the applicants’ sexual orientation or sex or the same-sex character of their marriage, or the religious beliefs of the organizations, the number of potential homes for children is reduced.
24. Such exclusions that reduce the number of placement or adoption options for children can also result in placing children with less suitable parents who are unable to meet the children’s individualized needs, causing harm to children in ORR’s custody and care. United States Conference of Catholic Bishops
25. USCCB, a grantee of ORR, is one of the primary organizations that implements the URM Program and the UC Program on behalf of Federal Defendants. USCCB, through its affiliates and sub-grantees, determines appropriate placements for children under the URM Program and the UC Program, among other responsibilities.
26. USCCB receives millions of dollars in grants from ORR annually under the URM Program and the UC Program. ORR authorizes USCCB to use those funds to award sub-grants to other organizations, including its sub-grantee, Catholic Charities of Fort Worth (“CCFW”), to perform services for children in the Fort Worth region of Texas under the URM Program and the UC Program.
27. USCCB is the sole or primary source of funding for CCFW’s services for children under the URM Program and the UC Program.
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28. In its URM grant application for the relevant period, USCCB informed ORR that “USCCB must ensure that services provided under this application are not contrary to the authentic teaching of the Catholic Church, its moral convictions, or religious beliefs.”
29. In its UC grant application for the relevant period, USCCB similarly informed ORR that “USCCB must ensure that services provided under this application are not contrary to the authentic teaching of the Catholic Church, its moral convictions, and religious beliefs in an approach that is consistent with the ACF Policy on Grants to Faith-Based Organizations.”
30. USCCB also notified ORR in its UC grant application that it would require sub-grantees to comply with an agreement provision entitled “Catholic Identity,” under which sub-grantees:
must ensure that services provided to those served under this Agreement are not contrary to the authentic teaching of the Catholic Church, its moral convictions, and religious beliefs. Accordingly, [USCCB] expects that the Sub-recipient will provide services under this Agreement within certain parameters including, among other things, that the Sub-recipient will not provide, refer, encourage, or in any way facilitate access to contraceptives or abortion services. 31. When ORR awarded the URM and UC grants to USCCB for the relevant period, it did not prohibit USCCB from administering the grants based on religious considerations, as set forth in USCCB’s grant applications. Nor did ORR implement any other safeguards to prevent USCCB from doing so. 32. USCCB’s URM and UC grant applications for prior periods contained similar statements of intent with respect to religiously motivated administration of
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the grants, and ORR similarly did not implement any safeguards to prevent USCCB from carrying out such intent. On information and belief, if unchecked, this pattern will persist.
33. In numerous contexts, USCCB has publicly objected to providing services to married applicants unless they are in a legal union of one man and one woman. USCCB’s website openly advocates against parenting of children by samesex couples. For example, USCCB Fact Sheets concerning adoption and foster care services, which have appeared on USCCB’s website since at least 2013, state that, “[w]hen placing children with couples, Catholic Charities ensures those children enjoy the advantage of having a mother and a father who are married.” Discrimination Against Catholic Adoption Services, USCCB http://www.usccb.org/issues-and-action/religious-liberty/discrimination-againstcatholic-adoption-services.cfm (last visited Feb. 16, 2018).
34. Another section on USCCB’s website entitled “Frequently Asked Questions About the Defense of Marriage” states, and stated at all times during the relevant period, that “[p]lacing a child in the care of two men or two women may be well-intentioned, but ultimately deprives the child of that which best serves his or her interests – a mother and a father.” Frequently Asked Questions About the Defense of Marriage, USCCB, http://www.usccb.org/issues-and-action/marriage-andfamily/marriage/promotion-and-defense-of-marriage/frequently-asked-questions-ondefense-of-marriage.cfm (last visited Feb. 16, 2018).
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35. Additionally, as confirmed by a press release first posted on its website in 2015, USCCB has lobbied for the passage of laws that would allow child welfare organizations that receive federal funds for adoption and foster care services to declare overtly, without fear of adverse governmental action, that, based on their religious beliefs, they permit adoption by, and foster care placement with, only married couples comprising one man and one woman.
36. When ORR awarded the URM and UC grants to USCCB for the relevant period, it was on notice that USCCB’s religious beliefs disfavored same-sex relationships.
37. Federal Defendants unlawfully use federal taxpayer dollars to finance grants to USCCB to implement the URM Program and the UC Program based on impermissible religious criteria.
38. Federal Defendants are required to administer grants and cooperative agreements in a manner so as to ensure that federal funding is expended, and associated federal programs are implemented, in accordance with the constitutional guarantees of equality and liberty and the strictures of the Establishment Clause, in addition to applicable statutory and regulatory requirements, including but not limited to those prohibiting discrimination.
39. HHS requires that no person otherwise eligible be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services based on non-merit-based factors such as sexual orientation, sex, and religion. See 45 C.F.R. § 75.300(c) (2018). HHS
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grantees and sub-grantees, including USCCB and its sub-grantees, must comply with this requirement in the administration of programs supported by HHS awards.
40. HHS also requires that, in accordance with the Supreme Court decisions in United States v. Windsor and Obergefell v. Hodges, HHS grantees and sub-grantees, including USCCB and its sub-grantees, must treat as valid the marriages of same-sex couples in the administration of programs supported by HHS awards. See 45 C.F.R. § 75.300(d) (2018).
Fatma and Bryn Seek to Foster an Unaccompanied Refugee Child 41. Fatma and Bryn married in 2015 and moved to Texas in 2016. Fatma is a 41-year-old law professor at Texas A&M University Law School and director of its Immigrant Rights Clinic. She was born in California to Egyptian and Turkish immigrant parents. Bryn, age 33, teaches Bioethics at Texas A&M University’s School of Medicine. Bryn was born in St. George, Utah and grew up there and later in Las Vegas, Nevada. The couple’s wedding ceremony joyfully wove together customs from their diverse backgrounds and cultures—Fatma being raised Muslim and Bryn, Mormon. 42. The couple was eager to bring a child into their family. After their wedding, Fatma attempted to get pregnant though reproductive technology. Their attempts were unsuccessful, and the couple began considering other options for bringing a child into their lives. 43. Fatma became familiar with CCFW through her work at the immigration clinic. The chief executive officer of CCFW sent Fatma a personal
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solicitation via e-mail, proposing a stronger relationship between CCFW and Fatma’s clinic. To advance that goal, CCFW invited Fatma to tour CCFW’s facility, writing that “[i]t would be an honor to host you!” Fatma went on the tour where she learned about CCFW’s work with unaccompanied refugee children.
44. Fatma’s visit sparked her and Bryn’s shared interest in fostering an unaccompanied refugee child. The couple sought more information from CCFW about their foster care programs and exchanged multiple e-mails with a CCFW employee about the next steps for bringing an unaccompanied refugee child into their home. In those e-mails, Bryn was identified as Fatma’s spouse. The couple was thrilled when CCFW scheduled an initial telephone interview for them with the Chair of the Executive Committee of CCFW’s Board of Directors, Donna Springer (“Springer”).
45. On or about February 22, 2017, Fatma and Bryn spoke with Springer. Springer described various requirements to become foster parents, as well as the population of children in need of foster homes. During the call, it became clear to CCFW that Fatma and Bryn are same-sex spouses.
46. Springer then told Fatma and Bryn that foster parents must “mirror the holy family.” To clarify whether their relationship would be an issue, Fatma explicitly stated that she and Bryn are a same-sex couple. Springer responded that they did not “qualify” to foster a child.
47. Shocked by Springer’s response, Fatma then asked about lesbian, gay, bisexual, and transgender (“LGBT”) children in CCFW’s care, because LGBT youth
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may qualify for asylum. Springer responded that none of the approximately 700 children that CCFW serves is a member of the LGBT community.
48. On or about that same day, February 22, 2017, the Director of Immigration Services for CCFW recognized Fatma’s expertise related to CCFW’s immigration work by sending Fatma and two of her colleagues an e-mail inviting them to deliver a “Know Your Rights Presentation” at CCFW on March 4, 2017. Fatma accepted the invitation and gave the presentation. Hundreds of people attended, and the director wrote to Fatma afterward to thank her for the presentation.
49. On or about February 22, 2017, Fatma e-mailed the general e-mail address for ORR to report that CCFW had discriminated against her and her samesex spouse by informing them that they were not eligible to foster an unaccompanied refugee child because they did not “mirror the holy family.” Fatma’s e-mail asked whether such conduct was permissible and sought information about alternative organizations that would allow same-sex couples to become foster parents. Fatma did not receive a response to her e-mail until April 14, 2017, when the “ORR team” e-mailed Fatma asking for the names of the individuals at CCFW who “informed [her] that the agency does not license foster families who do not mirror the holy family”.
50. Fatma provided the information that ORR requested on May 1, 2017. She received a response on May 2, 2017, which only thanked her for providing the
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information. She has since received no further communication from either ORR or CCFW.
51. By working to ensure that none of the children for which they are responsible are placed in homes of same-sex spouses based on USCCB’s religious beliefs, USCCB and its sub-grantees not only discriminate against same-sex spouses, but also effectively erase the non-Catholic identities and beliefs of many of the unaccompanied refugee children for which they are responsible. This conduct potentially increases those children’s alienation and vulnerability, while denying them access to loving homes that could serve them best—all at federal taxpayers’ expense.
52. By working to ensure that none of the children for which they are responsible be placed in homes of same-sex spouses based on USCCB’s religious beliefs, USCCB and its sub-grantees also disserve and demean the youth for which they are responsible who are LGBT, stigmatizing them as less deserving and worthy of respect than others, and sending them the message that, when they grow up to form families of their own, they and their families will not have a right to equal treatment in the provision of government services.
53. Federal Defendants were on notice at the time that they awarded the URM and UC program grants for the relevant period to USCCB that USCCB and its sub-grantees, including CCFW, would administer the grants in a discriminatory manner based on its religious beliefs, including its religious beliefs disfavoring same-sex relationships. Yet Federal Defendants did not implement any safeguards
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to prevent USCCB or its sub-grantees, including CCFW, from doing so. As a result, Federal Defendants violated the United States Constitution.
54. Federal Defendants’ failure to remedy the discrimination by USCCB and its sub-grantee in denying Fatma and Bryn the opportunity to foster a child under the URM Program or the UC Program based on impermissible religious considerations, of which they are on notice, compounds their constitutional violation.
CLAIMS FOR RELIEF Count I
(First Amendment – Establishment Clause) U.S. Const. amend I
55. Plaintiffs reincorporate the foregoing allegations as if fully set forth herein.
56. Federal Defendants have provided and continue to provide federal taxpayer funds to USCCB and its sub-grantees to provide federal child welfare services for unaccompanied refugee children in the Fort Worth region of Texas under both the URM Program and the UC Program.
57. USCCB and its sub-grantees apply its own religious criteria in providing these federally funded services when accepting applications from prospective foster and adoptive parents, including religious requirements that discriminate against prospective foster and adoptive parents on account of their sexual orientation and sex and the same-sex character of their marriage.
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58. Federal Defendants were on notice at the time that they awarded the URM and UC grants for the relevant period to USCCB that USCCB and its subgrantees, including CCFW, would administer the grants in a discriminatory manner based on its religious beliefs, including its religious beliefs disfavoring same-sex relationships.
59. Federal Defendants failed to implement any safeguards to prevent USCCB or its sub-grantees, including CCFW, from administering the URM and UC grants in a discriminatory manner based on its religious beliefs.
60. USCCB and its sub-grantee used federal funds provided by Federal Defendants to discriminate against Fatma and Bryn based on USCCB’s religious beliefs.
61. Federal Defendants failed to take any corrective action after Fatma and Bryn notified them that USCCB and its sub-grantee had engaged in sectarian discrimination against Fatma and Bryn under federal programs administered by Federal Defendants.
62. Federal Defendants have violated and continue to violate the Establishment Clause by enabling, sanctioning, ratifying, and failing to implement adequate safeguards against USCCB’s and its sub-grantees’ use of federal taxpayer funds for its own sectarian purposes, including categorically excluding certain members of the public from funded child welfare services based on faith-based principles.
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63. By enabling grantees and sub-grantees to exclude members of the public from federal child welfare services based solely on their religious beliefs, Federal Defendants have disbursed and continue to disburse federal taxpayer funds in a manner that is not neutral with respect to religion.
64. By enabling grantees and sub-grantees to provide federal child welfare services based on their religious beliefs, Federal Defendants have disbursed and continue to disburse federal taxpayer funds in a manner that prefers USCCB’s Catholic identity and beliefs.
65. By funding USCCB with knowledge that it will use such funds to engage in sectarian discrimination based on its religious beliefs, and by failing to establish adequate safeguards to prevent such discrimination, Federal Defendants have improperly acted with a religious purpose and with a primary effect of advancing USCCB’s Catholic identity and beliefs.
66. By funding USCCB with knowledge that it will use such funds to engage in sectarian discrimination based on its religious beliefs, and by failing to establish adequate safeguards to prevent such discrimination, Federal Defendants have improperly defined recipients of such funds by reference to religion and impermissibly effected governmental indoctrination.
67. By funding USCCB with knowledge that it will use such funds to engage in sectarian discrimination based on its religious beliefs, and by failing to establish adequate safeguards to prevent such discrimination, Federal Defendants have improperly endorsed USCCB’s Catholic identity and beliefs.
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68. By enabling USCCB’s religious beliefs to be a precondition to receiving government services, Federal Defendants have impermissibly coerced individuals, including vulnerable and impressionable children in the care of USCCB and CCFW, with respect to those religious beliefs.
69. As federal taxpayers, Plaintiffs are harmed by Federal Defendants’ use of federal taxpayer funds to underwrite and endorse religious beliefs to which they do not subscribe.
70. Federal Defendants’ actions also harm LGBT individuals and couples who wish to become foster or adoptive parents, including Plaintiffs.
71. Through the actions described above, Federal Defendants have deprived and continue to deprive Plaintiffs of their rights protected by the Establishment Clause of the First Amendment to the United States Constitution.
Count II (Fifth Amendment – Equal Protection)
U.S. Const. amend V 72. Plaintiffs reincorporate the foregoing allegations as if fully set forth herein. 73. The Due Process Clause of the Fifth Amendment to the United States Constitution prohibits the federal government from denying equal protection of the laws. 74. Federal Defendants have discriminated and continue to discriminate impermissibly against individuals, including Plaintiffs, based on religion, their sexual orientation, their sex, and the same-sex character of their marriage, by
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funding the administration of services that they are on notice are being administered in a manner that disfavors same-sex relationships.
75. Federal Defendants have deprived and continue to deprive individuals, including Plaintiffs, of equal dignity, liberty, and autonomy, and brand them as inferior by discriminating against them based on religion, sexual orientation, sex, and the exercise of the fundamental right to marry.
76. Discrimination based on religion, sexual orientation, sex, or the exercise of the fundamental right to marry (including to a person of the same sex) is presumptively unconstitutional and subject to heightened scrutiny.
77. There is no constitutionally adequate justification for Federal Defendants’ actions.
78. Federal Defendants’ actions fail to advance any legitimate governmental interest. To the contrary, enabling the religious test at issue is antithetical to Federal Defendants’ responsibility to ensure that the best interests of the children in their care and custody drive their placement and adoption.
79. Federal Defendants’ actions harm LGBT individuals and couples who wish to become foster or adoptive parents, including Plaintiffs.
80. Through the actions described above, Federal Defendants have deprived and continue to deprive Plaintiffs of their rights protected by the equal protection guarantee of the Fifth Amendment to the United States Constitution.
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Count III (Fifth Amendment – Substantive Due Process)
U.S. Const. amend V 81. Plaintiffs reincorporate the foregoing allegations as if fully set forth herein. 82. The Fifth Amendment's Due Process Clause protects individuals' substantive rights to be free to make certain decisions central to autonomy, integrity, self-definition, intimacy, and personhood without unjustified governmental intrusion. These decisions include the fundamental right to marry, including the right to marry someone of the same sex. 83. Married persons also have a fundamental liberty interest in their marriage, including a fundamental liberty interest in the federal government recognizing and respecting marriages validly entered into under state law. 84. Additionally, all persons have a liberty interest in their family privacy, integrity, and association. 85. Federal Defendants enabled, sanctioned, and ratified USCCB’s and its sub-grantees’ use of a religious test to deny Fatma and Bryn the ability to apply to be foster or adoptive parents under the URM Program or UC Program solely due to a judgment that their family “does not mirror the holy family.” In doing so, Federal Defendants’ conduct violated the substantive due process component of the Due Process Clause of the Fifth Amendment because Federal Defendants burdened Fatma and Bryn’s liberty interests and penalized their exercise of their fundamental right to marry.
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86. There is no constitutionally adequate justification for Federal Defendants’ infringement of Plaintiffs’ fundamental rights.
87. Federal Defendants’ actions harm LGBT individuals and couples who wish to become foster or adoptive parents, including Plaintiffs.
88. Through the actions described above, Federal Defendants have violated and continue to violate the substantive due process protections of the Fifth Amendment to the United States Constitution.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that this Court grant the following relief: A. Enter a declaratory judgment that Federal Defendants’ failure to ensure that Plaintiffs may apply to be foster or adoptive parents to a child under the URM Program or the UC Program through Federal Defendants’ grantee USCCB absent religious or other criteria that disfavor them based on their sexual orientation or sex or the same-sex character of their marriage violates the First and Fifth Amendments to the United States Constitution. B. Enter a declaratory judgment that Federal Defendants’ actions in enabling, sanctioning, ratifying, or failing to implement adequate safeguards against the use of religious or other criteria disfavoring same-sex relationships to determine who may receive federal child welfare services under the URM Program and the UC Program violates the First and Fifth Amendments to the United States Constitution.
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C. Issue a permanent injunction requiring Federal Defendants to ensure that Plaintiffs may apply to be foster or adoptive parents to a child under the URM Program or the UC Program through Federal Defendants’ grantee USCCB absent religious or other criteria that disfavor them based on their sexual orientation or sex or the same-sex character of their marriage.
D. Issue a permanent injunction prohibiting Federal Defendants from enabling, sanctioning, ratifying, or failing to implement adequate safeguards against the use of religious or other criteria to exclude foster or adoptive parent applicants based on their sexual orientation or sex or the same-sex character of their marriage in the administration of the URM Program and the UC Program, including, as necessary, prohibiting Federal Defendants from awarding URM or UC grants to USCCB.
E. Award Plaintiffs nominal monetary damages. F. Award Plaintiffs their reasonable costs and attorney’s fees. G. Grant any other and further relief that this Court may deem fit and proper. Dated: February 20, 2018
Respectfully submitted,
HOGAN LOVELLS US LLP
By: /s/ Jessica L. Ellsworth Jessica L. Ellsworth (DC Bar No. #484170) *Kenneth Y. Choe **Jennifer A. Fleury
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*James A. Huang HOGAN LOVELLS US LLP 555 Thirteenth Street, N.W. Washington, D.C. 20004–1109 Telephone: (202) 637-5600 Facsimile: (202) 637-5910 jessica.ellsworth@hoganlovells.com ken.choe@hoganlovells.com jennifer.fleury@hoganlovells.com
*Alali Dagogo-Jack HOGAN LOVELLS US LLP 4085 Campbell Avenue, Suite 100 Menlo Park, CA 94025 Telephone: (650) 463-4070 alali.dagogo-jack@hoganlovells.com
and
*Camilla B. Taylor *Jamie A. Gliksberg LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 105 West Adams, 26th Floor Chicago, IL 60603-6208 Telephone: (312) 663-4413 ctaylor@lambdalegal.org jgliksberg@lambdalegal.org
*Kenneth D. Upton, Jr. LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3500 Oak Lawn Avenue, Suite 500 Dallas, TX 75219-6722 Telephone: (214) 219-8585 kupton@lambdalegal.org
Attorneys for Plaintiffs
*admission pro hac vice to be sought
**admission to the bar of the Court pending
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