Stewart v. Heineman
296 Neb. 262
| Neb. | 2017Background
- Three same-sex couples sued DHHS officials under 42 U.S.C. § 1983 challenging (1) a 1995 administrative memorandum (Memo 1-95) that publicly stated homosexuals would not be licensed as foster parents and (2) a contemporaneous five-tier review practice (the "Pristow Procedure") that subjected gay applicants to extra approval layers for placement decisions.
- Plaintiffs alleged they were ready and able to be foster/adoptive parents but were deterred from applying because of Memo 1-95 and the differential scrutiny of the Pristow Procedure.
- DHHS officials testified Memo 1-95 remained on the agency website and training materials, but some supervisors followed an informal Pristow Procedure permitting placements only after multiple levels of approval; the agency had not formally rescinded Memo 1-95.
- Defendants argued plaintiffs lacked standing/ripeness because they had not been denied licenses or placements, and later contended the case was moot after Memo 1-95 was removed from the website during litigation.
- The district court granted summary judgment for plaintiffs, enjoined enforcement of Memo 1-95, barred policies/procedures that treated gay applicants differently under the "best interests" standard, and awarded costs and attorney fees; defendants appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing / Ripeness to seek pre-enforcement declaratory and injunctive relief | Plaintiffs were "able and ready" to apply and were deterred by the published barrier; stigma and unequal treatment are imminent injuries | Plaintiffs had not applied/been denied, so injury was speculative and not ripe | Court held ripeness satisfied: barrier and stigmatic injury confer standing without an application/refusal; preemptive relief appropriate |
| Mootness and voluntary removal of Memo 1-95 from website | Removal does not moot the case because Memo 1-95 was openly declared and Plaintiffs were deterred; agency kept memo on website and withheld written disavowal | Removal of memo during litigation moots controversy | Court held removal did not moot case; voluntary cessation doctrine applies and burden on defendant to show non-recurrence not met; Pristow Procedure independently actionable |
| Scope of justiciability as to the Pristow Procedure (policy vs practice) | Plaintiffs could challenge both the published memo and the discriminatory multi-tier review that persisted in practice | Defendants argued the Pristow Procedure supplanted Memo 1-95 and thus Plaintiffs lacked a live controversy about the memo | Court allowed challenge to both; treated published memo and discriminatory placement review as justiciable; struck memo and enjoined differential treatment |
| Award of attorney fees under 42 U.S.C. § 1988 | Fees documented in affidavits/transcript; district court considered exhibits and reduced award based on objections | Defendants argued fee evidence was not in bill of exceptions so insufficient on appeal | Court affirmed fee award; held trial court properly considered fee materials filed in transcript and did not abuse discretion |
Key Cases Cited
- Gratz v. Bollinger, 539 U.S. 244 (plaintiff need only show readiness and that discriminatory policy prevents equal opportunity)
- Northeastern Fla. Chapter, Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656 (ripeness—fitness for judicial decision and hardship from withholding review)
- Teamsters v. United States, 431 U.S. 324 (nonapplicants deterred by an openly declared discriminatory policy may be victims without futile application)
- Heckler v. Mathews, 465 U.S. 728 (stigmatic injury from discrimination supports standing)
- Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (ripeness/standing principles applied in race-based contracting challenges)
- Allen v. Wright, 468 U.S. 737 (stigmatic, noneconomic injuries can support standing)