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