AM. CIVIL LIBERTIES UNION OF MASS. v. Sebelius, Civil Action No. 09-10038-RGS.

• Decision Date: 22 March 2010
• Docket Number: Civil Action No. 09-10038-RGS.
• Citation: 697 F. Supp.2d 200
• Parties: AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS v. Kathleen SEBELIUS, et al.
• Court: U.S. District Court — District of Massachusetts

697 F. Supp.2d 200

AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS v. Kathleen SEBELIUS, et al.

Civil Action No. 09-10038-RGS.

United States District Court, D. Massachusetts.

March 22, 2010.

Brigitte Amiri, Rose A. Saxe, American Civil Liberties Union Foundation, New York, NY, Pro Hac Vice, Daniel Mach, Heather Weaver, American Civil Liberties Union Foundation, Washington, DC, Sarah R. Wunsch, ACLU of Massachusetts, Boston, MA, for Plaintiffs.

Peter J. Phipps, United States Department of Justice, Washington, DC, for Defendants.

MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS

STEARNS, District Judge.

On January 12, 2009, the American Civil Liberties Union of Massachusetts (ACLU) brought this lawsuit against officials of the U.S. Department of Health and Human Services (HHS), alleging that defendants are violating the Establishment Clause of the First Amendment by allowing the United States Conference of Catholic Bishops (USCCB) to impose a religion-based restriction on the disbursement of taxpayer-funded services.¹ On May 15, 2009, defendants filed a motion to dismiss for lack of subject matter jurisdiction. A hearing on the motion was held on December 3, 2009.²

BACKGROUND

The facts, viewed in the light most favorable to the ACLU as the non-moving party, are as follows. In 2000, with the noble goal of suppressing human trafficking, Congress passed the Trafficking Victims Protection Act (TVPA), 22 U.S.C. § 7105 et seq.³ The TVPA included a provision directing HHS to "expand benefits and services to victims of severe forms of trafficking in persons in the United States...." 22 U.S.C. § 7105(b)(1)(B). Congress initially funded the mandate by appropriating $5 million for victims' services in fiscal year 2001 and $10 million in fiscal year 2002. Congress has since appropriated up to $12.5 million for each of the fiscal years 2008 through 2011.

HHS initially implemented the victims' services mandate of the TVPA by making grants to private providers on a case-by-case basis. In November of 2005, HHS decided to award a master contract to a single provider on a per capita basis. On February 23, 2006, the USCCB submitted a proposal to HHS to enlist non-governmental organizations (NGOs) under its oversight umbrella.⁴ However, the USCCB added a caveat:

As we are a Catholic organization, we need to ensure that our victim services funds 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 victims for abortion services or contraceptive materials....

Compl. ¶ 46.⁵ HHS sought to clarify this "conscience exception" by asking the USCCB,

"Would a `don't ask, don't tell' policy work regarding the exception? What if a subcontractor referred victims supported by stipend to a third-party agency for such services?" Id. at ¶ 49. The USCCB responded unequivocally. "We cannot be associated with an agency that performs abortions or offers contraceptives to our clients. If they sign the written agreement the subcontract, the `don't ask, don't tell' wouldn't apply because they are giving an assurance to us that they wouldn't refer for or provide abortion service to our client using contract funding." Id. at ¶ 50. Despite this answer, in April of 2006, HHS awarded the master contract to the USCCB. Id. at ¶ 51.⁶ From April of 2006 to April of 2007, the USCCB was awarded $2.5 million. Id. at ¶ 66. From April of 2007 to April of 2008, it received more than $3.5 million. Id.

The USCCB has enforced the "conscience exception" by incorporating language in its subcontractor agreements prohibiting NGOs from using TVPA funds for "referral for abortion services or contraceptive materials." Id. at ¶ 57. This restriction is also set out in the operations manual that the USCCB distributes to the provider NGOs. The manual flatly states that "program funding cannot be used for abortion services or contraceptive materials. Subcontractors will not be reimbursed for these services." Id. at ¶¶ 58-59.⁷

DISCUSSION

Defendants move to dismiss the ACLU's Complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. Specifically, defendants challenge the ACLU's claim to have standing to litigate the case. Article III, § 2, of the Constitution limits federal courts to the adjudication of actual "Cases" or "Controversies." "To invoke the jurisdiction of a federal court, a litigant must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). "Standing differs, in theory, from all other elements of justiciability by focusing primarily `on the party seeking to get his complaint before a federal court' and only secondarily `on the issues he wishes to have adjudicated.'" Laurence H. Tribe, American Constitutional Law 385-386 (3d ed.2000) (footnotes omitted) (emphases in original).

The burden of establishing standing rests with the party invoking the jurisdiction of the federal courts. See Bennett v. Spear, 520 U.S. 154, 167-168, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997).

There are three fundamental requisites of standing that every litigant invoking the jurisdiction of the federal courts must possess: (1) injury-in-fact— an invasion of a legally-protected interest that is both concrete and particularized, and actual or imminent; (2) causation; and (3) redressability. Several prudential considerations also infuse standing determinations. These considerations, which militate against standing, principally concern whether the litigant (1) asserts the rights and interests of a third party and not his or her own, (2) presents a claim arguably falling outside the zone of interests protected by the specific law invoked, or (3) advances abstract questions of wide public significance essentially amounting to generalized grievances more appropriately addressed to the representative branches.

Benjamin v. Aroostook Med. Ctr., Inc., 57 F.3d 101, 104 (1st Cir.1995) (internal citations omitted). See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (same).

An association has standing to bring a lawsuit on behalf of its members "when 1 at least one of its members possesses standing to sue in his or her own right; 2 the interests that the suit seeks to vindicate are pertinent to the objectives for which the organization was formed; and 3 neither the claim asserted nor the relief demanded necessitates the personal participation of affected individuals." Libertad v. Welch, 53 F.3d 428, 440 (1st Cir.1995). See also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). The ACLU contends that it has associational standing by virtue of its members' status as federal taxpayers.⁸

Until 1968, the law was clear that a taxpayer could not claim standing to challenge the constitutionality of a federal statute based on the use of his or her tax dollars to implement an allegedly unconstitutional practice or program.

The administration of any statute, likely to produce additional taxation to be imposed upon a vast number of taxpayers, the extent of whose several liability is indefinite and constantly changing, is essentially a matter of public and not of individual concern. If one taxpayer may champion and litigate such a cause, then every other taxpayer may do the same, not only in respect of the statute here under review, but also in respect of every other appropriation act and statute whose administration requires the outlay of public money, and whose validity may be questioned. The bare suggestion of such a result, with its attendant inconveniences, goes far to sustain the conclusion which we have reached, that a suit of this character cannot be maintained.

Frothingham v. Mellon, 262 U.S. 447, 487, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). The Court backed away from this flat prohibition, however, in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). In Flast, the Court entertained an Establishment Clause challenge to the expenditure of federal funds "to finance instruction in reading, arithmetic, and other subjects in religious schools, and to purchase textbooks and other instructional materials for use in such schools." Id. at 85-86, 88 S.Ct. 1942.

The congressional act challenged in Flast set up a complicated mechanism under which local entities serving the educational needs of low income families submitted requests to state agencies for federal funds. The applications were approved based on a set of criteria established by the United States Commissioner of Education that permitted distribution of public financial aid to religious schools. Describing the Frothingham decision as "confusing" and "criticized," the Flast Court concluded that its holding was likely motivated by prudential concerns, and that there was "no absolute bar in Article III to suits by federal taxpayers challenging allegedly unconstitutional federal taxing and spending programs." Id. at 92, 101, 88 S.Ct. 1942.

The Court then fashioned a two-part test to be applied in determining whether a taxpayer had a stake in a controversy over the expenditure of public funds sufficient to confer standing.

First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, § 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute.... Secondly, the taxpayer

...