American Civil Liberties Union of Massachusetts v. Sebelius, Civil Action No. 09–10038–RGS.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Citation821 F.Supp.2d 474
Docket NumberCivil Action No. 09–10038–RGS.
Decision Date23 March 2012

821 F.Supp.2d 474

Kathleen SEBELIUS, et al.

Civil Action No. 09–10038–RGS.

United States District Court, D. Massachusetts.

March 23, 2012.

[821 F.Supp.2d 476]

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

Gregory Dworkowitz, Peter J. Phipps, United States Department of Justice, Washington, DC, for Kathleen Sebelius, et al.

STEARNS, District Judge.

In this case, plaintiff American Civil Liberties Union of Massachusetts (ACLU) claims that officials of the U.S. Department of Health and Human Services (HHS) violated the Establishment Clause of the First Amendment by allowing the United States Conference of Catholic Bishops (USCCB) to impose a religiously based restriction on the disbursement of taxpayer-funded services. Presently before the court are the parties' cross-motions for summary judgment, as well as defendant-intervenor USCCB's motion to dismiss for lack of subject matter jurisdiction. The court heard oral argument on October 18, 2011.


The undisputed facts are as follows. In 2000, Congress passed the Trafficking Victims Protection Act (TVPA). See 22 U.S.C. §§ 7101–7112.1 The purposes of the TVPA are “to combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims.” Id. § 7101(a). The TVPA includes a provision directing the Secretary of HHS and other federal government officials to “expand benefits and services to victims of severe forms of trafficking in persons in the United States....” Id. § 7105(b)(1)(B). Congress appropriated “up to” $5 million “to carry out the TVPA” in fiscal year 2001, and “up to” approximately $10 million for each of the subsequent fiscal years. Gov. Defs.' Statement of Facts (SOF) ¶ 5.

HHS initially implemented the victims' services mandate by making grants to nonprofit organizations that worked directly with trafficking victims. In November of 2005, HHS decided to select a general contractor to administer the funds. To this end, HHS published a Request For Proposals (RFP). In response, HHS received timely proposals from two organizations: the USCCB (“a religious organization whose membership consists of the Catholic bishops in the United States”) 2 and the Salvation Army (“an evangelical part of the universal Christian Church” engaged in various charitable enterprises). 3 In its proposal, the USCCB included the following cautionary note:

as we are a Catholic organization, we need to ensure that our victim services

[821 F.Supp.2d 477]

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.Gov. Defs.' SOF ¶ 28 (emphasis added).4

To evaluate the two proposals, HHS appointed a four-member “technical evaluation panel.” Gov. Defs.' SOF ¶ 32. On the initial evaluation, two of the panel members raised concerns about the USCCB's stated intent to prohibit subcontractors from offering or subsidizing abortion services and contraceptives.5 The panel members' reservations were conveyed to the USCCB in the form of written questions. Among the questions, the USCCB was asked: “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?” Gov. Defs.' SOF ¶ 43. The USCCB responded:

[w]e can not be associated with an agency that performs abortions or offers contraceptives to our clients. If they sign the written [subcontract] agreement, 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. The subcontractor will know in advance that we would not reimburse for those services.Id. ¶ 52.

After receiving the answers, HHS reopened the RFP process to permit the USCCB and the Salvation Army to submit revised technical proposals, which both organizations did.6 On April 11, 2006, HHS awarded the master contract to the USCCB. The contract incorporated by reference the USCCB's Technical Proposal and Amended Technical Proposal, including the abortion and contraception restriction. Gov. Defs.' SOF ¶ 75. Pursuant to the award, the USCCB entered into subcontracts with over 100 service providers, many of which are not Catholic institutions. The subcontract included the restriction that “funds shall not be used to provide referral for abortion services or contraceptive materials, pursuant to this contract.” Pl.'s SOF ¶ 62; USCCB's Resp. to Pl.'s SOF ¶ 62. The abortion/contraception restriction was also contained in the program operations manual that the USCCB distributed to its subcontractors.

[821 F.Supp.2d 478]

Pl.'s SOF ¶ 63; USCCB's Resp. to Pl.'s SOF ¶ 63. Subcontractors were further required to ensure that no staff time paid through the USCCB contract was used in providing referrals for abortions or contraceptive materials. Pl.'s SOF ¶ 64; USCCB's Resp. to Pl.'s SOF ¶ 64.

The original HHS–USCCB contract had a term of one year, with options for four annual renewals. HHS exercised each of these options, renewing the contract for a five-year duration. During the first four years of the contract, the government defendants awarded the USCCB over $13 million. As of June of 2010, the government defendants awarded the USCCB an additional $2.9 million. 7 Pl.'s SOF ¶ 79; USCCB's Resp. to Pl.'s SOF ¶ 79. Before the contract was set to expire (on April 10, 2011), HHS approved a six-month extension by way of a “Task Order.” The Task Order expired on October 10, 2011. While HHS no longer has the authority to obligate additional funds under the original master contract or the Task Order, it can continue to pay the USCCB for “services provided within the period of performance of the Task Order.” Timmerman Decl. ¶¶ 6–11.

On January 12, 2009, the ACLU brought this lawsuit against HHS officials, 8 alleging that they “have violated and continue to violate the Establishment Clause of the First Amendment by permitting [the] USCCB to impose a religiously based restriction on the use of taxpayer funds.” Compl. ¶ 71. On May 15, 2009, defendants filed a motion to dismiss the Complaint for lack of standing. This court denied the motion on March 22, 2010, 697 F.Supp.2d 200 (D.Mass.2010). In June of 2010, the USCCB intervened in the lawsuit as permitted by Rule 24 of the Federal Rules of Civil Procedure. All three parties now move for summary judgment.


Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A ‘genuine’ issue is one that could be resolved in favor of either party, and a ‘material fact’ is one that has the potential of affecting the outcome of the case.” Calero–Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir.2004), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

I. Threshold Issues: Standing and Mootness
A. Standing

Defendants previously challenged the ACLU's claim to have standing to litigate this case. In a Memorandum and Order dated March 22, 2010, the court found a sufficient showing of taxpayer standing on the part of the ACLU under existing Supreme Court doctrine. In reaching this conclusion, I reasoned that the ACLU had met its prima facie burden under Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), which is to show “a logical link” between the plaintiff's taxpayer status and “the type of legislative enactment attacked,” as well as “a nexus” between such taxpayer status and “the precise nature of the constitutional infringement alleged.” Id. at 102, 88 S.Ct. 1942. 9

[821 F.Supp.2d 479]

The government defendants and the USCCB now seek to revisit the issue of standing. The government defendants contend that “due to the further development of taxpayer standing principles in Arizona Christian School Tuition Organization v. Winn, ––– U.S. ––––, 131 S.Ct. 1436, 179 L.Ed.2d 523 (2011), it is now clear that plaintiff lacks taxpayer standing in this case.” Gov. Defs.' Reply at 6.10 In Winn, the Supreme Court held that the taxpayer plaintiffs lacked standing to mount an Establishment Clause challenge to a dollar-for-dollar tax credit (up to $500) matched against contributions to scholarship funds supporting students attending private schools, many of which are religiously based. In reaching its holding, the Court incorporated an “extracted and spent” element into the taxpayer standing analysis. It explicitly distinguished challenges to tax credits from challenges to governmental expenditures, stating that “tax credits and governmental expenditures do not both implicate individual taxpayers in sectarian activities. A dissenter whose tax dollars are ‘extracted and spent’ knows that he has in some small measure been made to contribute to an establishment in violation of conscience.” Winn, 131 S.Ct. at 1447, quoting Flast, 392 U.S. at 106, 88 S.Ct. 1942. The Court further reasoned that in contrast to a governmental expenditure, “awarding some citizens a tax credit allows other citizens to retain control over their own funds in accordance with their own consciences.” Winn, 131 S.Ct. at 1447.11


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    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
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