Am. Civil Liberties Union of Mass. v. U.S. Conference of Catholic Bishops

• Decision Date: 15 January 2013
• Docket Number: Nos. 12–1466,12–1658.,s. 12–1466
• Citation: 705 F.3d 44
• Parties: AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS, Plaintiff, Appellee, v. UNITED STATES CONFERENCE OF CATHOLIC BISHOPS, Defendant, Appellant, Kathleen Sebelius, Secretary of the Department of Health and Human Services; George Sheldon, Acting Assistant Secretary for the Administration of Children and Families; Eskinder Negash, Director of the Office of Refugee Resettlement, Defendants.
• Court: U.S. Court of Appeals — First Circuit

705 F.3d 44

AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS, Plaintiff, Appellee,

v. UNITED STATES CONFERENCE OF CATHOLIC BISHOPS, Defendant, Appellant,Kathleen Sebelius, Secretary of the Department of Health and Human Services; George Sheldon, Acting Assistant Secretary for the Administration of Children and Families; Eskinder Negash, Director of the Office of Refugee Resettlement, Defendants.

Nos. 12–1466, 12–1658.

United States Court of Appeals, First Circuit.

Jan. 15, 2013.

Lowell V. Sturgill, Jr., Attorney, Appellate Staff Civil Division, U.S. Department of Justice, with whom Stuart F. Delery, Assistant Attorney General, Carmen Ortiz, United States Attorney, Beth S. Brinkmann, Deputy Assistant Attorney General, and Matthew M. Collette, Attorney, Appellate Staff Civil Division, U.S. Department of Justice, were on brief, for defendants Kathleen Sebelius, et al.

Henry C. Dinger, with whom Catalina Azuero, Goodwin Procter LLP, Anthony R. Picarello, Jr., and Jeffrey Hunter Moon, were on brief, for defendant-appellant United States Conference of Catholic Bishops.

James L. Hirsen and Deborah J. Dewart on brief for Justice and Freedom Fund, amicus curiae.

Eric Rassbach and S. Kyle Duncan on brief for The Becket Fund for Religious Liberty et al., amicus curiae.

Brigitte Amiri, with whom Andrew D. Beck, Rose Ann Saxe, Daniel Mach, Heather L. Weaver, and Sarah R. Wunsch, were on brief, for plaintiff-appellee American Civil Liberties Union of Massachusetts.

Alex J. Luchenitser, Ayesha N. Khan, Steven M. Freeman, David L. Barkey, Robert O. Trestan, K. Hollyn Hollman, and Gretchen S. Futrell on brief for Americans United for Separation of Church and State et al., amicus curiae.

Gabrielle Viator, Assistant Attorney General, Martha Coakley, Attorney General of Massachusetts, and Genevieve C. Nadeau, Assistant Attorney General, on brief for Commonwealth of Massachusetts, amicus curiae.

Eliza M. Scheibel, Anne Harkavy, P. Patty Li, and Wilmer Cutler Pickering

Hale and Dorr LLP on brief for Organizations Serving Trafficking Victims, amicus curiae.

Before LYNCH, Chief Judge, TORRUELLA, Circuit Judge, and DiCLERICO, ^* District Judge.

LYNCH, Chief Judge.

The American Civil Liberties Union of Massachusetts (ACLUM), asserting taxpayer standing on behalf of its members, brought suit in 2009 alleging that the U.S. Department of Health and Human Services (HHS) violated the Establishment Clause of the First Amendment. HHS had received funds appropriated by Congress under the Trafficking Victims Protection Act (TVPA) and, in 2006, contracted with the United States Conference of Catholic Bishops (USCCB) to provide services to trafficking victims. At the insistence of USCCB, the 2006 contract incorporated a restriction under which neither USCCB nor any of its subcontractors would use funding to counsel or provide abortions or contraceptive services and prescriptions to trafficking victims.

In March of 2012, the district court awarded relief to ACLUM issuing a declaratory judgment that HHS had violated the Establishment Clause “insofar as they delegated authority to a religious organization to impose religiously based restrictions on the expenditure of taxpayer funds, and thereby impliedly endorsed the religious beliefs of the USCCB and the Catholic Church.” Am. Civil Liberties Union of Mass. v. Sebelius, 821 F.Supp.2d 474, 488 (D.Mass.2012). The 2006 contract, along with its extensions, expired in October of 2011.

We vacate on grounds of mootness and remand with instructions to dismiss.

I.

The problem of human trafficking, as all parties recognize,¹ is considerable and very serious. Human trafficking “is a widespread form of modern-day slavery,” U.S. Dep't of Justice, Attorney General's Annual Report to Congress and Assessment of U.S. Government Activities to Combat Trafficking in Persons: Fiscal Year 2008, at 1 (2009), with an estimated 27 million victims worldwide, see U.S. Dep't of State, Trafficking in Persons Report 7 (2012). This pandemic disproportionately affects women and girls, who account for 98% of individuals trafficked to perform commercial sex acts and 55% of those trafficked to provide forced labor. Id. at 45; see also D. Banks & T. Kyckelhahn, U.S. Dep't of Justice, Characteristics of Suspected Trafficking Incidents, 2008–2010, at 6 (2011). These women and girls are typically subject to a variety of abuses, including rape and other forms of sexual assault, and they may seek abortions, contraceptives, and other medical services.

On October 28, 2000, Congress passed the TVPA, Pub. L. No. 106–386, 114 Stat. 1464 (2000) (codified as amended at 22 U.S.C. § 7101 et seq.), to “combat trafficking in persons,” “ensure just and effective punishment of traffickers,” and “protect their victims,” 22 U.S.C. § 7101(a). In its victim services mandate, the TVPA directs the Secretary of HHS, subject to the availability of congressional appropriations, to expand the benefits and services offered to human trafficking victims residing in the United States. Id. § 7105(b)(1)(B). Since fiscal year 2001, Congress has appropriated $5 to $10 million annually to HHS to carry out that mandate. See, e.g., Consolidated Appropriations—FY 2001, Pub. L. No. 106–554, 114 Stat. 2763, 2763A–22 (2000); Consolidated Appropriations Act, 2010, Pub. L. No. 111–117, 123 Stat. 3034, 3249–50 (2009).

Shortly after Congress passed the TVPA, HHS began implementing the victim services mandate through a series of competitively selected grants to direct service providers. See, e.g.,ORR Announcement for Services To Victims of a Severe Form of Trafficking, 67 Fed. Reg. 36,622, 36,623 (May 24, 2002). HHS later determined that these grants were inefficient and ineffective, due to geographic and other limitations.²

In November of 2005, these problems prompted HHS to alter its approach to the distribution of funds under the victim services mandate. Rather than issuing multiple grants to individual service providers, HHS decided to award a single contract to administer the agency's TVPA funds nationwide. HHS would then reimburse the organization selected, on a “per capita” basis, for the benefits and services it provided to trafficking victims.³

On November 9, 2005, HHS published a Request for Proposals (RFP) for the nationwide contract. The RFP explained that the award recipient would furnish, either directly or through other organizations, “case management, benefits coordinating, and counseling services” to trafficking victims. The contractor would also expend TVPA funds on certain direct services, including medical care, therapy, and other forms of assistance. The TVPA did not require HHS to ensure that taxpayer funds were made available to provide abortions or contraceptive services to trafficking victims, and the RFP did not preclude organizations which refused to provide these services from submitting a proposal.

HHS received timely proposals from two organizations, both religiously affiliated: USCCB and the Salvation Army. Based upon its own religious and moral convictions, USCCB's proposal included a restriction on the services it would fund if awarded the nationwide contract:

[A]s we are a Catholic organization, we need to ensure that our victim services are not used to refer or fund activities that would be contrary to our moral convictions and religious beliefs. Therefore, we would explain to potential subcontractors our disclaimer of the parameters within which we can work. Specifically, subcontractors could not provide or refer for abortion services or contraceptive materials for our clients pursuant to this contract.

Sebelius, 821 F.Supp.2d at 476–77 (emphasis omitted).

HHS convened a four-member “technical evaluation panel” to review the contract proposals. Based upon four criteria specified in the RFP—organizational profile, approach, staff and position data, and past experience—the panel gave USCCB's proposal a technical score of 89.00 (out of 100.00) and Salvation Army's proposal a technical score of 71.75. Two of the panel members raised concerns about USCCB's services restriction, which they expressed through a series of written questionnaires to USCCB. In response, USCCB clarified that it would not agree to a “don't ask, don't tell” policy on abortion and contraception, and that it would not use, or permit to be used, any TVPA funds for activities covered by the restriction. Id. at 477.

In February of 2006, HHS allowed both organizations to submit revised technical proposals. The panel gave USCCB's revised proposal a technical score of 93.75, noting the restriction as one of its weaknesses. Salvation Army's revised proposal received a technical score of 75.00. As to costs, the panel estimated that USCCB's proposal would require approximately $29 million in total funding as compared to $89 million for Salvation Army's proposal. HHS awarded the nationwide contract to USCCB on March 29, 2006 (HHS–USCCB contract).

The HHS–USCCB contract was signed on April 11, 2006. It had an initial term of one year, with options for four annual renewals thereafter, each of which HHS exercised. Throughout this contractual period, USCCB did not provide services directly to trafficking victims, but subcontracted with upwards of 100 other organizations that did so. USCCB's subcontracts specified what costs were and were not reimbursable. Non-reimbursable costs included, among others, “abortion counseling/services” and “abortive/contraceptive prescriptions.” USCCB did not, however, exclude any organization from becoming a subcontractor on the basis of that organization's provision of abortion or contraception services, it simply forbade reimbursement for such services. Subcontractors were able to furnish these services at their own expense or through funding acquired from other sources. Over the first four years of this arrangement, USCCB's subcontractors served an estimated 2,254 trafficking victims at around one-fifth the cost per victim of the earlier grant...