City And County Of San Francisco v. Whitaker
| Decision Date | 10 December 2018 |
| Docket Number | Case No. 18-cv-02068-JST |
| Citation | 357 F.Supp.3d 931 |
| Court | U.S. District Court — Northern District of California |
| Parties | CITY AND COUNTY OF SAN FRANCISCO, Plaintiff, v. Matthew G. WHITAKER, et al., Defendants. |
Sara Jennifer Eisenberg, Kenneth Michael Walczak, Yvonne Rosil Mere, Dennis J. Herrera, Mollie M. Lee, Ronald P. Flynn, Office of the City Attorney of San Francisco, San Francisco, CA, for Plaintiff.
Cesar A. Lopez-Morales, United States Department of Justice, Washington, DC, for Defendants.
ORDER GRANTING MOTION TO DISMISS
Re: ECF No. 36
Before the Court is Defendants Department of Justice and Acting Attorney General Matthew Whitaker's (collectively, "DOJ") motion to dismiss Plaintiff City and County of San Francisco's (the "City") complaint. ECF No. 36. The Court will grant the motion.
In February 2017, President Donald Trump issued Executive Order 13777, "Enforcing the Regulatory Reform Agenda," which, among other things, instructed executive agencies to identify regulatory actions that were "outdated, unnecessary, or ineffective" as candidates for repeal, modification, or replacement. 82 Fed. Reg. 12,285, 12,286 (Feb. 24, 2017). In November 2017, then-Attorney General Jefferson Sessions issued a memorandum addressed specifically at DOJ guidance documents, in which he observed that DOJ had "in the past published guidance documents – or similar instruments of future effect by other names, such as letters to regulated entities – that effectively bind private parties without undergoing the rulemaking process." Attorney General Memorandum, Prohibition on Improper Guidance Documents , at 1 (Nov. 16, 2017), https://www.justice.gov/opa/press-release/file/1012271/download. The memorandum instructed DOJ to refrain from this practice in the future, stating that the agency would no longer "issue guidance documents that purport to create rights or obligations binding on persons or entities outside the Executive Branch (including state, local, and tribal governments)," and setting forth several principles for future guidance documents. Id. at 1-2. In addition, the memorandum instructed the agency "to identify existing guidance documents that should be repealed, replaced, or modified in light of these principles." Id. at 2.
Pursuant to EO 13777 and the November 2017 Attorney General Memorandum, DOJ announced in December 2017 that it was rescinding twenty-five guidance documents that it had identified as "unnecessary, inconsistent with existing law, or otherwise improper." ECF No. 30-1 at 2. In July 2018, DOJ rescinded an additional twenty-four guidance documents that it had determined "were unnecessary, outdated, inconsistent with existing law, or otherwise improper." ECF No. 30-8 at 2.
This dispute arises from the rescission of eight of these guidance documents. First, the "Olmstead Guidance"1 provided guidance to state and local governments on implementing Title II of the Americans with Disabilities Act's ("ADA") mandate to provide integrated workplace settings to employees with disabilities. See FAC ¶¶ 37-60; ECF No. 30-2. Second, DOJ and the Department of Housing and Urban Development's "1999 Joint Statement" explained the agencies' view on how the Fair Housing Act ("FHA") impacted local government control over group living arrangements. See FAC ¶¶ 61-68; ECF No. 30-3.
The next set of guidance documents concerned provisions of the Immigration and Nationality Act ("INA") that prohibit employment discrimination on the basis of national origin, or in the case of certain "protected individuals," citizenship status (collectively, the "INA Guidance").See FAC ¶ 69. The third challenged document, the "Zendejas Letter," set forth DOJ's interpretation of when individuals are "protected individuals" and various protections that apply. See id. ¶ 74; ECF No. 30-4. Fourth, the "Baudry Letter" provided guidelines for employers to conduct citizenship documentation audits in compliance with the INA's non-discrimination provisions. See FAC ¶ 75; ECF No. 30-5. Fifth, a DOJ guidance document, "Refugees and Asylees Have the Right to Work" (the "Refugee Employment Flyer"), provided additional guidance regarding employing those individuals. See FAC ¶ 77; ECF No. 30-9.
Two more guidance documents concerned the imposition of fees and fines in the criminal justice system. The sixth challenged document, the "Dear Colleague" letter, provided guidance to state and local court entities on constitutional and federal statutory issues raised by various fee and fine practices. See FAC ¶ 85; ECF No. 30-6. Seventh, the "Juvenile Fines and Fees Advisory" for recipients of DOJ financial assistance addressed similar concerns as applied to the juvenile justice system. See FAC ¶ 86; ECF No. 30-7.
Finally, the "Technical Assistance Manual" provided guidance to state and local agencies on addressing the over-representation of minority youth in the juvenile justice system. See FAC ¶ 99; ECF No. 30-10.
The City alleges, and DOJ does not dispute, that the agency provided no explanation for withdrawing these guidance documents beyond the statements in DOJ's general rescission announcements. FAC ¶ 32-36.
On April 5, 2018, the City filed this lawsuit, alleging that DOJ had failed to provide a meaningful and particularized explanation for the December 2017 decision to rescind six of the guidance documents, making its action arbitrary and capricious, in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A). ECF No. 1. On June 18, 2018, DOJ filed a motion under Federal Rule of Civil Procedure 12(b)(1) to dismiss for lack of jurisdiction, asserting that the City lacked standing, the City's claims were unripe, and the rescissions of certain of the documents were not final agency actions subject to APA review. ECF No. 18.
On July 30, 2018, the City amended its complaint to include additional allegations related to its standing, as well as to include within its APA challenge two more guidance documents rescinded in early July 2018. See FAC. On September 27, 2018, DOJ filed an amended motion to dismiss, raising the same jurisdictional attacks. ECF No. 36. This motion is now before the Court.
The Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 702. Though DOJ challenges the City's standing, the Court has jurisdiction to determine its own jurisdiction. See Special Invs., Inc. v. Aero Air, Inc. , 360 F.3d 989, 992 (9th Cir. 2004).
If a plaintiff lacks Article III standing to bring a suit, the federal court lacks subject matter jurisdiction and the suit must be dismissed under Rule 12(b)(1). Cetacean Cmty. v. Bush , 386 F.3d 1169, 1174 (9th Cir. 2004). Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004) (citation omitted). Where, as here, the defendant makes a facial attack, the court assumes that the complaint's allegations are true and draws all reasonable inferences in the plaintiff's favor. Wolfe v. Strankman , 392 F.3d 358, 362 (9th Cir. 2004).2
A. Article III Standing
Article III standing requires that a "plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). "To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ " Id. at 1548 (quoting Lujan v. Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ).
Because "[t]he party invoking federal jurisdiction bears the burden of establishing these elements," they are "an indispensable part of the plaintiff's case." Lujan , 504 U.S. at 561, 112 S.Ct. 2130. Accordingly, "each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e. , with the manner and degree of evidence required at the successive stages of the litigation." Id. at 561, 112 S.Ct. 2130.
"[A] plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought." Town of Chester v. Laroe Estates, Inc. , ––– U.S. ––––, 137 S.Ct. 1645, 1650, 198 L.Ed.2d 64 (2017) (citation omitted).
The Court first addresses issues common to the standing analysis for all of the guidance documents, then turns to the City's specific theories for each one.
As an initial matter, the City contends that it is subject to the less rigorous standing inquiry that applies when a plaintiff alleges a procedural violation. ECF No. 38 at 11-12.
"In order to establish an injury in fact in the context of a claimed procedural error in an agency's decisionmaking process, a plaintiff must show that ‘(1) the [agency] violated certain procedural rules; (2) these rules protect [a plaintiff's] concrete interests; and (3) it is reasonably probable that the challenged action will threaten their concrete interests.’ " Friends of Santa Clara River v. U.S. Army Corps of Eng'rs , 887 F.3d 906, 918 (9th Cir. 2018) (quoting San Luis & Delta-Mendota Water Auth. v. Haugrud , 848 F.3d 1216, 1232 (9th Cir. 2017) (alterations in original) ).
The Court first considers whether the City alleges a violation of procedural rules. As set forth in its operative complaint, the City alleges that DOJ's rescission of the...
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