American Civil Liberties Union of Northern California v. Burwell et al

Filing 58

Order by Magistrate Judge Laurel Beeler granting 29 Motion to Intervene. The court grants USCCB's motion for permissive intervention. (lblc1S, COURT STAFF) (Filed on 2/7/2017)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division United States District Court Northern District of California 11 12 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, 13 Plaintiff, Case No. 16-cv-03539-LB ORDER GRANTING USCCB’S MOTION TO INTERVENE 14 v. 15 Re: ECF No. 29 SYLVIA MATHEWS BURWELL, et al., 16 Defendants. 17 INTRODUCTION 18 The ACLU of Northern California challenges federal grants to religious organizations for the 19 20 care of unaccompanied immigrant minors.1 The ACLU charges that the Office of Refugee 21 Resettlement (“ORR”) violates the Establishment Clause by its grants to religious groups that 22 refuse to provide unaccompanied minors with “information about, access to, or referrals for 23 contraception and abortion” services.2 One of those religious groups, the United States Conference 24 of Catholic Bishops (“USCCB”), now moves to intervene as of right or, alternatively, 25 26 27 28 Compl. – ECF No. 1. Record citations refer to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents. 1 2 Id. ¶¶ 4, 7. ORDER — No. 16-cv-03539-LB 1 permissively, and to defend its receipt of federal funding.3 The ACLU objects to intervention on 2 both grounds; the government objects only to USCCB’s intervention as of right.4 The court held a hearing on the matter on February 2, 2017. At the hearing USCCB agreed to 3 4 proceed on the basis of permissive intervention. Because the court finds that permissive 5 intervention is appropriate in this case, the court grants USCCB’s motion to intervene. 6 7 STATEMENT 8 The United States government is legally obligated to provide for the “care and custody of all 9 unaccompanied minor children.”5 8 U.S.C. § 1232(b)(1); see 6 U.S.C. § 279(b). This includes, among other things, routine medical care, family-planning services, and emergency health 11 United States District Court Northern District of California 10 services.6 In cases of sexually abused minors, ORR must provide “unimpeded access to 12 emergency medical treatment, crisis intervention services, emergency contraception, and sexually 13 transmitted infections prophylaxis.”7 45 C.F.R. § 411.92(a). And if pregnancy results from sexual 14 abuse, the victim must “receive[] timely and comprehensive information about all lawful 15 pregnancy-related medical services.”8 Id. § 411.93(d). 16 ORR provides these services through a network of facilities and shelters.9 It grants funds to 17 private entities — including religious organizations — to care for the children.10 But in doing so it 18 “authorize[s] a few of these religiously affiliated organizations . . . to refuse on religious grounds 19 to provide information about, access to, or referrals for contraception and abortion, even if the 20 young person in their care has been raped.”11 ORR also “allow[s] these organizations to reject 21 3 Motion to Intervene – ECF No. 29. 4 ACLU’s Opposition to Motion – ECF No. 49; Defendants’ Opposition to Motion – ECF No. 50. 5 Compl. ¶¶ 20–22. 24 6 Id. ¶ 27. 25 7 Id. ¶ 28. 8 Id. 9 Id. ¶ 24. 22 23 26 27 10 Id. ¶ 3. 28 11 Id. ¶ 4. ORDER — No. 16-cv-03539-LB 2 1 young women seeking abortion from their programs, and to expel young women who ask for an 2 abortion.”12 And ORR has “facilitate[d] the ostracization of young women who have accessed or 3 seek to access abortion” by placing (and transferring) women based on grantees’ religious 4 objections.13 USCCB is one such ORR-funded religious organization.14 “USCCB does not provide services 5 6 directly to unaccompanied immigrant minors, but instead issues subgrants to Catholic Charities 7 and other organizations that do so.”15 USCCB prohibits its subgrantees from providing 8 contraception- and abortion-related information or services.16 Indeed, the USCCB–subgrantee 9 cooperative agreement contains the following “conscience provision”: [subgrantees] must ensure that services provided to those served under this Agreement are not contrary to the authentic teaching of the Catholic Church, its moral convictions, and religious beliefs. Accordingly, [USCCB] expects that the Sub-recipient will provide services under this Agreement within certain parameters including, among other things, that the Sub-recipient will not provide, refer, encourage, or in any way facilitate access to contraceptives or abortion services.17 10 United States District Court Northern District of California 11 12 13 Despite USCCB’s contraception and abortion objections, ORR granted it nearly $10 million in 14 2014.18And because of its objections, ORR removed from its cooperative agreements language 15 requiring grantees to refer minors to care providers for “approved family planning methods and 16 services” and “information and counseling regarding prenatal care and delivery; infant care, foster 17 care, or adoption; and pregnancy termination.”19 18 Through its grants, the ALCU alleges, “ORR has authorized USCCB and other grantees to 19 impose religiously based restrictions on young women’s access to reproductive health care.”20 20 Thus, it charges, the defendants have “violated the Establishment Clause by failing to remain 21 12 Id. ¶ 5. 13 See id. ¶¶ 39–40. 14 Id. ¶ 4. 24 15 Id. ¶ 25. 25 16 Id. ¶ 35. 17 Id. 18 Id. ¶ 5. 27 19 Id. ¶¶ 32–34. 28 20 Id. ¶ 7. 22 23 26 ORDER — No. 16-cv-03539-LB 3 1 neutral with respect to religion, by subsidizing grantees’ religious beliefs to the detriment of 2 unaccompanied immigrant minors, and by underwriting religious restrictions on vital government- 3 funded services.”21 And so the ACLU sued the government, including the Secretary of Health and Human 4 5 Services, the Acting Secretary of the Administration for Children and Families, and the Director 6 of ORR.22 The ACLU seeks an injunction ordering the defendants to issue grants “without the 7 imposition of religiously based restrictions.”23 The court previously denied the government’s 8 motion to dismiss and held that the ACLU has standing to bring its Establishment Clause claim.24 9 USCCB now moves to intervene as a defendant.25 10 United States District Court Northern District of California 11 GOVERNING LAW 12 “On timely motion, the court may permit anyone to intervene who . . . has a claim or defense 13 that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). 14 An applicant requesting permissive intervention “must prove that it meets three threshold 15 requirements: (1) it shares a common question of law or fact with the main action; (2) its motion is 16 timely; and (3) the court has an independent basis for jurisdiction over the applicant’s claims.” 17 Donnelly v. Glickman, 159 F.3d 405, 412 (9th Cir. 1998) (citing Nw. Forest Resource Council v. 18 Glickman, 82 F.3d 825, 839 (9th Cir. 1996)). “Even if an applicant satisfies those threshold 19 requirements, the district court has discretion to deny permissive intervention.” Id. 20 The court in its discretion may consider factors such as “the nature and extent of the 21 intervenors’ interest,” “whether the intervenors’ interests are adequately represented by other 22 parties,” and “whether parties seeking intervention will significantly contribute to full 23 development of the underlying factual issues in the suit and to the just and equitable adjudication 24 21 Id. 22 Id. ¶¶ 16–18. 23 Id., Prayer ¶ 2. 27 24 See Order – ECF No. 25. 28 25 See generally Motion to Intervene. 25 26 ORDER — No. 16-cv-03539-LB 4 1 of the legal questions presented.” See Spangler v. Pasadena City Bd. of Educ., 552 F.2d 1326, 2 1329 (9th Cir. 1977). Judicial economy is also relevant. Venegas v. Skaggs, 867 F.2d 527, 531 (9th 3 Cir. 1989), aff’d sub nom. Venegas v. Mitchell, 495 U.S. 82 (1990). The court must, however, 4 “consider whether intervention will unduly delay the main action or will unfairly prejudice the 5 existing parties.” Donnelly, 159 F.3d at 412. 6 7 ANALYSIS 8 USCCB requests permissive intervention.26 It agreed at the hearing that the court could limit 9 its analysis to permissive intervention. The government does not oppose the request for permissive intervention but suggests that filing an amicus curiae brief is a superior model.27 The ACLU, on 11 United States District Court Northern District of California 10 the other hand, objects on two grounds, arguing: (1) the defendants will adequately represent 12 USCCB’s interests, and (2) USCCB’s “vexatious litigation tactics” to date suggest that they will 13 unduly delay or prejudice the proceedings.28 The threshold requirements for permissive intervention are satisfied. USCCB shares common 14 15 questions of both law and fact with the main action — namely, whether the government’s grants to 16 USCCB violated the establishment clause. The motion is timely because it was filed less than a 17 month after the court’s order on the government’s motion to dismiss and before the government 18 answered the complaint. Intervention came six months after the ACLU filed its complaint but any 19 delay was to permit the resolution of the motion to dismiss. And, finally, “[w]here the proposed 20 intervenor in a federal-question case brings no new claims, the jurisdictional concern drops away.” 21 Freedom from Religion Found. v. Geithner, 644 F.3d 836, 844 (9th Cir. 2011) (citing 7C Wright, 22 Miller & Kane, Fed. Prac. & Proc. § 1917 (3d ed. 2010)). The court thus turns to the discretionary 23 factors. 24 25 26 26 Motion to Intervene at 17–19. 27 27 Defendants’ Opposition to Motion at 6–7. 28 28 ACLU’s Opposition to Motion at 13–14. ORDER — No. 16-cv-03539-LB 5 First, the ACLU argues that the government will adequately represent USCCB’s interests in 1 2 the litigation. Identity of interests and adequacy of representation may counsel against permissive 3 intervention. See Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 955 (9th Cir. 2009). 4 But the government and USCCB have at least potentially divergent interests — for example, 5 USCCB has monetary and religious interests that the government does not share. This factor alone 6 does not support denying intervention. Second, the ACLU points to USCCB’s obstreperous disagreements about scheduling issues. 7 8 On this record, the court does not conclude that USCCB engaged in dilatory or prejudicial 9 conduct. USCCB’s financial, moral, and religious interests in the litigation are significant. Its 10 United States District Court Northern District of California 11 participation will contribute to the development of the factual and legal landscape. And the court 12 cannot see how intervention will prejudice the existing parties. In sum, permissive intervention is 13 appropriate, and the court grants USCCB’s motion. The court will not now impose restrictions on 14 USCCB’s role in the case, for example, to “prevent needless duplication and delay,” as the ACLU 15 requests.29 The court will address case-management issues when they arise. 16 CONCLUSION 17 The court grants USCCB’s motion for permissive intervention. 18 19 20 IT IS SO ORDERED. 21 Dated: February 7, 2017 ______________________________________ LAUREL BEELER United States Magistrate Judge 22 23 24 25 26 27 28 29 Id. at 15. ORDER — No. 16-cv-03539-LB 6

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