Am. Civil Liberties Union of N. Cal. v. Burwell

• Decision Date: 29 November 2016
• Docket Number: Case No. 16-cv-03539-LB
• Court: U.S. District Court — Northern District of California
• Parties: AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, Plaintiff, v. SYLVIA MATHEWS BURWELL, et al., Defendants.

AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, Plaintiff, v. SYLVIA MATHEWS BURWELL, et al., Defendants.

Case No. 16-cv-03539-LB

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA San Francisco Division

November 29, 2016

ORDER DENYING THE DEFENDANTS' MOTION TO DISMISS

Re: ECF No. 20

INTRODUCTION

The ACLU of Northern California challenges financial grants that the Department of Health and Human Services ("HHS") — through the Office of Refugee Resettlement ("ORR") — awards to religious organizations to provide care for unaccompanied immigrant minors.¹ By statute, the government must provide for the "care and custody of all unaccompanied minor children."² 8 U.S.C. § 1232(b)(1); see 6 U.S.C. § 279(b). To achieve that objective, the statute authorizes ORR to make grants to organizations to care for the children.³ See 8 U.S.C. § 1232(i). ORR makes grants to organizations, including religious organizations, which allegedly restrict the minors'access to reproductive health-care services that are contrary to the organizations' religious beliefs.⁴ The ACLU claims that the restrictions violate the Establishment Clause of the First Amendment to the U.S. Constitution.⁵

The issue is whether the ACLU has Article III standing to sue the federal government. The ACLU asserts taxpayer standing under Flast v. Cohen, 392 U.S. 83 (1968).⁶ Generally, taxpayers do not have standing to sue the government, but Flast established that taxpayers may challenge a statute that involves an exercise of congressional power under the taxing and spending clause on the ground that it violates the Establishment Clause. Id. at 105-06. The government contends that the ACLU lacks taxpayer standing because it challenges only a federal agency's discretionary award of grants and does not challenge — as Flast requires — specific congressional action.⁷ The ACLU counters that Flast establishes its standing to challenge ORR's grant of federal funds — appropriated by Congress to carry out the government's statutory obligation for the care and custody of unaccompanied minor children — to religious organizations on the ground that the money is spent in violation of the Establishment Clause.⁸

The court holds that the ACLU has taxpayer standing to raise its Establishment Clause challenge to the agency's grants to religious organizations. Congress mandated that the agency provide care to unaccompanied minors, and it authorized disbursements to provide that care. Under Flast, the ACLU may challenge the statute as applied.

LEGAL FRAMEWORK FOR THE CARE OF THE CHILDREN

The Secretary of HHS is responsible for "the care and custody of all unaccompanied alien children, including responsibility for their detention, where appropriate . . . ." 8 U.S.C. § 1232(b)(1). An "unaccompanied alien child" is a child who (1) is under age 18, (2) has no lawfulimmigration status in the United States, and (3) has no parent or legal guardian in the United States available to provide care and physical custody. 6 U.S.C. § 279(g)(2). Generally, an unaccompanied alien child who is in federal custody must be transferred to HHS custody within 72 hours. 8 U.S.C. § 1232(b)(3). Then, HHS — through ORR, which coordinates the care and placement of children — must place the child in the least restrictive setting that is in the best interest of the child. Id. § 1232(c)(2)(A); 6 U.S.C. § 279(b)(1)(A).

ORR must "ensur[e] that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied alien child." 6 U.S.C. § 279(b)(1)(B). It must "identify[] a sufficient number of qualified individuals, entities, and facilities to house" the children. Id. § 279(b)(1)(F). It must "conduct[] investigations and inspections of facilities and other entities in which unaccompanied alien children reside, including regular follow-up visits to such facilities, placements, and other entities to assess the continued suitability of such placements." Id. § 279(b)(1)(L).

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

First, as required by statute, the Secretary of HHS promulgated final rules with national standards for the "detection, prevention, reduction, and punishment of rape and sexual assault in facilities that maintain custody of unaccompanied minor alien children. . . ." 42 U.S.C. § 15607(d); see 45 C.F.R. §§ 411.91-.93. Among other things, "[if] the assessment pursuant to § 411.41 indicates that a UC [unaccompanied child] experienced prior sexual victimization or perpetrated sexual abuse, the care provider facility must ensure that the UC is immediately referred to a qualified medical or mental health practitioner for medical and/or mental health follow-up as appropriate." 45 C.F.R. § 411.91(a). "Care provider facilities must provide UC victims of sexual abuse timely, unimpeded access to emergency medical treatment, crisis intervention services, emergency contraception, and sexually transmitted infections prophylaxis, . . . where appropriate under medical or mental health professional standards." Id. § 411.92(a). The C.F.R. requires ongoing medical and mental-health care to children victimized by sexual abuse while in ORR care and custody. Id. § 411.93(a). Also,

Care provider facilities must ensure that female UC [unaccompanied children] victims of sexual abuse by a male abuser while in ORR care and custody are offered pregnancy tests, as necessary. If pregnancy results from an instance of sexual abuse, [the] care provider facility must ensure that the victim receives timely and comprehensive information about all lawful pregnancy-related medical services and timely access to all lawful pregnancy-related medical services.

Id. § 411.93(d).

Second, according to the complaint, "[t]he federal government is legally obligated to ensure that all programs that provide care to [unaccompanied immigrant minors] comply with the minimum requirements detailed in the Flores v. Reno Settlement Agreement . . . ."⁹ The "agreement requires the government to provide or arrange for, among other things, 'appropriate routine medical . . . care,' including specifically 'family planning services[] and emergency health care services.'"¹⁰

HHS "may award grants to, and enter into contracts with, voluntary agencies to carry out" the requirements of 8 U.S.C. § 1232 and 6 U.S.C. § 279. 8 U.S.C. § 1232(i). The funding for the grants comes from separate Congressional lump-sum appropriations.¹¹ In 2014, 2015, and 2016, Congress appropriated on average roughly $1.57 billion per year to the Administration for Children and Families ("ACF"), which is the component of HHS that houses ORR.¹² The appropriations provide ACF with funding for the following:

For necessary expenses for refugee and entrant assistance activities authorized by section 414 of the Immigration and Nationality Act and section 501 of the Refugee Education Assistance Act of 1980, and for carrying out section 462 of the Homeland Security Act of 2002, section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, the Trafficking Victims Protection Act of 2000 ("TVPA"), section 203 of the Trafficking Victims Protection Reauthorization Act of 2005, and the Torture Victims Relief Act of 1998 . . . .

Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, Div. H, Tit. II, 129 Stat. 2242, 2612 (Dec. 18, 2015).¹³

STATEMENT

1. Unaccompanied Alien Children in Federal Custody

The federal government currently has thousands of unaccompanied immigrant minors in its legal custody.¹⁴ Many come to the United States fleeing abuse and torture, "many have been sexually abused or assaulted," and "some have also been trafficked for labor or prostitution."¹⁵ The government apprehends many near the border and apprehends others through the juvenile justice system or immigration enforcement activities.¹⁶ Most minors who are referred to ORR are eventually released to parents or sponsors in the United States but often are held in short-term facilities or shelters while they await release.¹⁷ Others who are not released spend longer times in custody and sometimes are transferred to group homes or a foster facility.¹⁸

2. Grants To Religiously Affiliated Entities

ORR uses a "network of ORR-funded facilities and shelters — including a number of religiously affiliated entities" such as the United States Conference of Catholic Bishops ("USCCB") and others.¹⁹ "USCCB does not provide services directly to unaccompanied minors, but instead issues subgrants to Catholic Charities and other organizations around the country."²⁰

The defendants "knowingly permit religiously affiliated grantees with religious objections to abortion and contraception to impose restrictions on unaccompanied immigrant minors' access to these forms of reproductive healthcare."²¹ The defendants

allow these grantees to flout . . . their [statutory, regulatory, and Flores] obligations . . . , including by: allowing objecting programs to refuse to provide young women in their care with information about, referrals for, or access to contraception and abortion; transferring young women who seek access to contraception or abortion out of objecting programs; and refusing to place young women who are seeking access to emergency contraception or abortion in objecting programs, even if that placement would otherwise be in the young woman's best interest.²²

For example, the defendants approved grants to USCCB — including nearly $10 million in 2014 — even though ORR knew "that USCCB's agreement with its subgrantees explicitly prohibits them from providing, referring, encouraging, or in any way facilitating access to contraceptives and abortion services."²³ USCCB's agreement prohibits the sub-grantee from providing services "contrary to the authentic teaching of the Catholic Church" and prohibits the facilitation of "access to contraceptives or abortion services."²⁴ In 2011, ORR had family-planning language in...