Stewart v. Heineman
296 Neb. 262
| Neb. | 2017Background
- Three same-sex couples sued DHHS officials under 42 U.S.C. § 1983 challenging a 1995 administrative memorandum (Memo 1-95) that barred people who identify as homosexual from foster licensing and placements, and challenging a later multi-tiered placement review practice (the "Pristow Procedure").
- Plaintiffs alleged they were ready and able to be foster/adoptive parents but were deterred by Memo 1-95 and the extra scrutiny applied to homosexual applicants; two plaintiffs had engaged in the licensing process and experienced long delays or direct reliance on Memo 1-95 by agency officials.
- DHHS officials conceded Memo 1-95 had not been formally rescinded but asserted it was no longer followed in practice; the director implemented a verbal Pristow Procedure requiring more levels of approval for placements involving gay applicants.
- The district court granted plaintiffs’ summary judgment, struck Memo 1-95, enjoined application of policies/procedures treating gay and lesbian applicants differently under the "best interests" standard, and awarded costs and attorney fees under § 1988.
- Defendants appealed only on justiciability (standing/ripeness), mootness (removal of the memo from the website during litigation), and the attorney-fee award procedure; they did not contest the district court’s constitutional ruling that the memo/procedure violated equal protection and due process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing / Ripeness to seek declaratory/injunctive relief | Plaintiffs were deterred by Memo 1-95, ready to apply, and would suffer stigmatic unequal-treatment injury; futility of applying justified pre-enforcement relief | Plaintiffs hadn’t applied or been denied, so harm was speculative and not ripe | Plaintiffs had standing; equal-protection stigma and deterrence make claim ripe for forward-looking relief |
| Mootness / Voluntary cessation (removal of memo from website) | Removal did not moot the case because memo was publicly declared, not rescinded in writing, and Pristow Procedure remained discriminatory | Removal of memo and changed practice mooted controversy over Memo 1-95 | Case not moot; voluntary removal did not meet the stringent burden to show wrongful behavior couldn’t recur; Pristow Procedure independently actionable |
| Challenge to Pristow Procedure (extra review tiers) | Procedure is discriminatory because it imposes greater burdens on gay applicants and increases chance of adverse outcome/stigma | Extra review is internal supervision to prevent bias, and same "best interests" standard applies; not unconstitutional | Pristow Procedure violated equal protection and due process; extra layers of approval discriminated and lacked justification |
| Attorney fees procedure / admissibility of fee evidence | Fees properly awarded under § 1988; detailed affidavits and exhibits were filed and considered by court | Evidence of fees was only in the transcript (not in the bill of exceptions), so insufficient for appellate review/award | Fee award upheld; appellate presumptions and prior Nebraska precedent permit consideration where fee submissions were filed, considered, and defendants had notice/opportunity to object; no abuse of discretion |
Key Cases Cited
- Gratz v. Bollinger, 539 U.S. 244 (barrier to equal treatment is an injury supporting standing)
- Northeastern Fla. Chapter, Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656 (ripeness/fitness principles for pre-enforcement challenges)
- Teamsters v. United States, 431 U.S. 324 (deterrence by published discriminatory policy can confer standing without futile application)
- Allen v. Wright, 468 U.S. 737 (stigmatic injury from discrimination can support standing)
- Heckler v. Mathews, 465 U.S. 728 (discrimination itself causes noneconomic injury supporting standing)
- Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (standing in competitive bidding cases; "sometime in the relatively near future" bidding standard)
- Friends of the Earth, Inc. v. Laidlaw Environmental Servs. (TOC), Inc., 528 U.S. 167 (voluntary cessation doctrine; defendant bears heavy burden to show conduct won’t recur)
- Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (standing analysis in consolidated-plaintiff contexts)