STATE OF CALIFORNIA, et al., Plaintiffs, v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.
Case No. 19-cv-04975-PJH
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
August 3, 2020
ORDER GRANTING IN PART, DENYING IN PART, AND DEFERRING RULING IN PART ON MOTION TO DISMISS; Re: Dkt. No. 160
Before the court is defendants the Department of Homeland Security (“DHS“), the U.S. Citizenship and Immigration Service (“USCIS“), Chad Wolf,1 and Kenneth
BACKGROUND
This case involves a challenge to the implementation of the final rule entitled “Inadmissibility on Public Charge Grounds,” published by DHS on August 14, 2019. See Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (“the Rule“). On October 10, 2018, DHS began the rulemaking process to create a new framework for the public charge assessment by publishing a Notice of Proposed Rulemaking (“NPRM“). See Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51,114 (Oct. 10, 2018). On August 14, 2019, DHS published the Rule in the Federal Register. Id. at 41,292. The Rule was originally set to become effective on October 15, 2019.
Publication of the Rule resulted in several complaints filed in federal district courts across the nation. Three such complaints were filed in the Northern District of California and related before this court. Dkt. 24. The present motion involves one of the three cases: State of California, et al. v. U.S. Department of Homeland Security, et al., Case No. 19-cv-04975-PJH, wherein the States of California, Maine, and Oregon, the Commonwealth of Pennsylvania, and the District of Columbia (the “state plaintiffs” or “plaintiffs“) filed a complaint (“Compl.“) asserting six causes of action: (1) Violation of the
On October 11, 2019, this court issued a preliminary injunction enjoining defendants from applying the Rule to any person residing in the City and County of San Francisco, Santa Clara County, the States of California, Oregon, or Maine, the Commonwealth of Pennsylvania, or the District of Columbia. Dkt. 120 at 92. Defendants appealed the preliminary injunction on October 30, 2019. Dkt. 129. A three-judge panel of the Ninth Circuit stayed the preliminary injunction on December 5, 2019.2 Dkt. 141;
see City & Cty. of San Francisco v. U.S. Citizenship & Immigration Servs., 944 F.3d 773 (9th Cir. 2019). On February 18, 2020, the Ninth Circuit panel voted to deny plaintiffs-appellees’ motions for reconsideration
A broader summary of the relevant statutory framework and the changes implemented by the Rule may be found in the court‘s preliminary injunction order. Dkt. 120 at 6–10. To briefly summarize here, DHS promulgated the Rule pursuant to its authority under the
DISCUSSION
A. Legal Standard
1. Rule 12(b)(1)
A federal court may dismiss an action under
A jurisdictional challenge may be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). When the attack is facial, the court determines whether the allegations contained in the complaint are sufficient on their face to invoke federal jurisdiction. Id. Where the attack is factual, however, “the court need not presume the truthfulness of the plaintiff‘s allegations.” Id.
When resolving a factual dispute about its federal subject matter jurisdiction, a court may review extrinsic evidence beyond the complaint without converting a motion to dismiss into one for summary judgment. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (holding that a court “may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction“); see also Land v. Dollar, 330 U.S. 731, 735 n.4 (1947) (“[W]hen a question of the District Court‘s jurisdiction is raised . . . the court may inquire by affidavits or otherwise, into the facts as they exist.“). “Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other
The Ninth Circuit has noted that “jurisdictional dismissals in cases premised on federal-question jurisdiction are exceptional, and must satisfy the requirements specified in Bell v. Hood, 327 U.S. 678 (1946).” Safe Air for Everyone, 373 F.3d at 1039 (quoting Sun Valley Gas., Inc. v. Ernst Enters., 711 F.2d 138, 140 (9th Cir. 1983)). “In Bell, the Supreme Court determined that jurisdictional dismissals are warranted ‘where the alleged claim under the constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining federal jurisdiction or where such claim is wholly insubstantial and frivolous.‘” Id. (quoting Bell, 327 U.S. at 682–83).
2. Rule 12(b)(6)
A motion to dismiss under
While the court is to accept as true all the factual allegations in the complaint, legally conclusory statements, not supported by actual factual allegations, need not be accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). The complaint must proffer sufficient facts to state a claim for relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 558–59 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]‘—‘that the pleader is entitled to relief.‘” Id. at 679 (quoting
Review is generally limited to the contents of the complaint, although the court can also consider documents “whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the plaintiff‘s pleading.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (quoting In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999), superseded by statute on other grounds as stated in In re Quality Sys., Inc. Sec. Litig., 865 F.3d 1130 (9th Cir. 2017)); see also Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007) (“[A] court can consider a document on which the complaint relies if the document is central to the plaintiff‘s claim, and no party questions the authenticity of the document.” (citation omitted)). The court may also consider matters that are properly the subject of judicial notice (Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001)), and exhibits attached to the complaint ( Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989)).
B. Analysis
1. Standing
Federal courts may adjudicate only actual cases or controversies,
Finally, “[s]tates are ‘entitled to special solicitude in our standing analysis.‘” California, 963 F.3d at 936 (quoting Massachusetts v. EPA, 549 U.S. 497, 520 (2007)). “[A] state may sue to assert its ‘quasi-sovereign interests in the health and well-being—both physical and economic—of its residents in general.‘” Id. (quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 607 (1982)).
In the preliminary injunction order, the court found that the harm alleged by the states was not too speculative and, for that reason, they had established standing. Dkt. 120 at 83. The court relied on DHS‘s own assessments in the Rule and the NPRM that projected a 2.5% disenrollment rate from federal programs, 84 Fed. Reg. at 41,463, and that payments from the federal government to the states would decrease by over $1.5 billion, 83 Fed. Reg. at 51,267–69. The court found that plaintiffs had alleged sufficient facts in their complaint, as well as evidence submitted in support of the motion for preliminary injunction, to support a harm similar to that assessed by
Defendants argue that, with regard to aliens who disenroll from federal health benefits, federal health program participants would not distinguish between federal- and state-funded health and social services and, therefore, utilization of all services would be reduced. Mtn. at 5. Thus, in order for the states to suffer a harm, aliens would need to disenroll from federal health benefits, then enroll in state health benefits, and the increased amount of state expenses would need to be greater than the costs incurred but for the Rule. Id. at 6. With regard to a reduction in Medicaid reimbursements, defendants argue that a reduction in Medicaid funding would be commensurate with a reduction in the provision of health services. In other words, utilization of healthcare paid by Medicaid would decrease, which means the amount paid by plaintiffs would also decrease.
Defendants’ renewed standing argument does not alter this court‘s prior findings. Both DHS‘s own analysis and plaintiffs, in their complaint and evidence, demonstrate that the Rule will cause individuals to disenroll or forego enrollment from federal health benefits, including Medicaid. See 84 Fed. Reg. at 41,463. Defendants contend the disenrollment in Medicaid will result in a corresponding decrease in the provision of services and thus no (or speculative) harm. This proposition flies in the face of DHS‘s own analysis in the Rule and the evidence submitted by plaintiffs.
In the Rule, DHS received a comment stating that hospitals are compelled to provide emergency services to individuals regardless of their ability to pay but those services will go uncompensated if patients are disenrolled from Medicaid. Id. at 41,384. While the Rule provides for an emergency services exemption, the commenter expressed concern that different states would interpret the exemption differently resulting in individuals who would be denied admission or avoid treatment. Id. In response, DHS acknowledged that “increased use of emergency rooms and emergent care as a method of primary healthcare due to delayed treatment is possible and there is a potential for increases in uncompensated care in which a treatment or service is not paid for by an insurer or patient.” Id.
Plaintiffs demonstrate that the cost of such uncompensated care will fall on the states. Plaintiffs’ complaint alleges “[i]ncreased emergency room use by the uninsured leads to an increased financial burden on hospitals, which are required to provide care to all patients—regardless of their ability to pay.” Compl. ¶ 242. In other cases, private providers will pass along the cost of uncompensated care to public and private payers of healthcare resulting in increased costs. Nat‘l Fed‘n of Indep. Bus. v. Sebelius, 567 U.S. 519, 593 (2012) (Ginsburg, J., concurring in part) (“Health-care providers do not absorb these bad debts. Instead, they raise their prices, passing along the cost of uncompensated care to those who do pay reliably: the government and private insurance companies.“); see also Decl. of Mari Cantwell, Dkt. 18-2, ¶ 40 (“The cost of uncompensated care would be shifted to the broader healthcare delivery system resulting in higher costs for the state, local entities, and private healthcare payers.“); Decl. of
In sum, plaintiffs have plausibly alleged that a harm will occur—in this instance a reduction in federal funds and a corresponding increase in state funds to cover costs associated with healthcare. As the Ninth Circuit stated in its opinion, “disenrollment from public benefits means a reduction in federal and state transfer payments, so the States will realize some savings in expenditures. Nevertheless, we consider the harms to the States, even if not readily quantifiable, significant.”3 City & Cty. of San Francisco, 944 F.3d at 807 (citation omitted). Because the court finds that plaintiffs have established
standing, it does not address their remaining standing arguments. See Dkt. 120 at 81–83 (finding increased operational costs to provide a basis for standing).
For the foregoing reasons, the court DENIES defendants’ motion with respect to standing.
2. Ripeness
“Ripeness is an
“For a case to be ripe, it must present issues that are definite and concrete, not hypothetical or abstract. Constitutional ripeness is often treated under the rubric of standing because ripeness coincides squarely with standing‘s injury in fact prong.” Id. (internal quotation marks and citation omitted); see Thomas, 220 F.3d at 1138–39 (“Sorting out where standing ends and ripeness begins is not an easy task. . . . [I]n ‘measuring whether the litigant has asserted an injury that is real and concrete rather than speculative and hypothetical, the ripeness inquiry merges almost completely with standing.‘” (citation omitted)). Allegations that a “threat” to a “concrete interest is actual and imminent” are sufficient to allege “an injury in fact that meets the requirements of constitutional ripeness.” Bishop Paiute Tribe, 863 F.3d at 1154. Therefore, if plaintiffs satisfy the
“In evaluating the prudential aspects of ripeness, our analysis is guided by two overarching considerations: ‘the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.‘” Id. at 1141 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)). When the question presented “is ‘a purely legal one‘” that “constitutes ‘final agency action’ within the meaning of § 10 of the APA,” that suggests the issue is fit for judicial decision. Nat‘l Park Hosp. Ass‘n v. Dep‘t of Interior, 538 U.S. 803, 812 (2003). However, an issue may not be ripe for review if “further factual development would ‘significantly advance our ability to deal with the legal issues presented.‘” Id. (quoting Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 82 (1978)).
In this case, the court has determined that plaintiffs have standing, therefore, it follows that the case is constitutionally ripe for adjudication. See Thomas, 220 F.3d at 1139. The court has not previously addressed prudential ripeness. Defendants contend that plaintiffs’ claims fail the prudential ripeness standard because the claims are premised on speculation about the Rule‘s operation in practice and further factual development is required. Mtn. at 7. Plaintiffs assert that the prudential ripeness standard is met because the Rule is final, and plaintiffs have already presented evidence of a chilling effect. Opp. at 6.
“Determining whether administrative action is ripe for judicial review requires [a court] to evaluate (1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration.” Nat‘l Park Hosp. Ass‘n, 538 U.S. at 808 (citing Abbott Labs., 387 U.S. at 149). When considering whether issues are fit for review, the question should be a “purely legal one” and the agency action in question should constitute a “‘final agency action’ within the meaning of § 10 of the APA.” Id. at 812 (quoting Abbott Labs., 387 U.S. at 149).
The second factor examines “the hardship to the parties of withholding court consideration.” Id. at 808. Generally, a showing of hardship requires demonstrating that the regulation in question creates “adverse effects of a strictly legal kind.” Id. at 809 (quoting Ohio Forestry Ass‘n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998)). Such adverse effects do not arise if the regulation in question “do[es] not command anyone to do anything or to refrain from doing anything; [it] do[es] not grant, withhold, or modify any formal legal license, power, or authority; [it] do[es] not subject anyone to any civil or criminal liability; [and it] create[s] no legal rights or obligations.” Id. (alterations in original) (quoting Ohio Forestry Ass‘n, 523 U.S. at 733).
Here, the challenge to the Rule in this case “is a purely legal one,” i.e., whether the INA was properly construed and implemented by DHS. See Abbott Labs., 387 U.S. at 149 (noting that “whether the statute was properly construed by the Commissioner” to be a purely legal challenge). Next, the Rule constitutes a “rule” as defined by the APA. See
With respect to hardship, the Rule imposes potential adverse effects of a strictly legal kind. If an alien falls within the Rule‘s definition of a public charge as determined by an immigration officer, then he or she is inadmissible. In other words, the Rule defines a legal right—admissibility to the United States. Concurrently, it also defines the legal powers and authorities of federal government officials in evaluating whether an alien is admissible. Of course, the Rule does not define the legal rights of plaintiffs or create any legal obligations directly impacting them. However, the potential adverse effects on individuals cause a direct harm to plaintiffs, as discussed above with regard to plaintiffs’ standing.
Defendants, citing Habeas Corpus Resource Center v. United States Department of Justice, 816 F.3d 1241, 1252 (9th Cir. 2016), contend that the court “would benefit from further factual development.” Mtn. at 7. They argue that plaintiffs’ claims are largely based on speculation about the Rule‘s operation in practice. Yet, plaintiffs have alleged that the chilling effects of the Rule began before it was even finalized. For example, plaintiffs allege that the District of Columbia‘s Department of Health Care Finance submitted a comment during the notice and comment period stating that the department has already seen a 3.5 percent average decline in participation in local health care programs that extend coverage to immigrants. Compl. ¶ 158. Moreover, because appellate courts have stayed all preliminary injunctions enjoining the Rule, it is currently in effect.4
Plaintiffs’ challenge is not speculative and further factual development of the Rule‘s impact is not needed for purposes of ripeness. Accordingly, the court DENIES defendants’ motion with respect to ripeness.
3. Zone of Interests
In order to succeed on the merits, plaintiffs must be within the zone of interests of the statute that forms the basis of their challenge. The zone of interests analysis asks “whether Congress created a private cause of action in legislation,” Organized Vill. of Kake v. U.S. Dep‘t of Agric., 795 F.3d 956, 964 (9th Cir. 2015) (en banc), such that “this particular class of persons has a right to sue under this substantive statute,” Lexmark Int‘l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127 (2014). It is “not a question of
In the preliminary injunction order, this court determined that section 1183a‘s affidavit of support provision is incorporated in and has an integral relationship with the public charge analysis (see
The court reasoned that by recognizing that states would be paying means-tested public benefits to those subject to a public charge analysis, requiring that states have legally-enforceable rights to recover those expenses when an alien is admitted based on consideration of an affidavit of support, and guaranteeing state-court jurisdiction for such enforcement actions, Congress clearly intended to protect states and their political subdivisions. Dkt. 120 at 70. The court also determined that because states have the right to recover payment from an affiant under section 1183a, Congress intended to protect states’ financial interests. Id.
Defendants argue that individual aliens deemed inadmissible, rather than the states, are in the INA‘s zone of interest. Mtn. at 8. Defendants would distinguish the court‘s preliminary injunction finding because enforcement of affidavits of support does not constitute an injury that falls
Defendants’ zone of interests argument does not alter the court‘s prior conclusions. Significantly, plaintiffs rely on section 1183a as a basis for their first claim such that it is a relevant statute for the zone of interests test. Compl. ¶ 312. By permitting states to recover payments under section 1183a, plaintiffs are intended beneficiaries under the statute. Further, the injuries complained of by plaintiffs include harm to their coffers. See id. ¶ 233 (“The Public Charge Rule will cause direct economic harm to Plaintiffs in the form of increased uncompensated costs for hospital care.“); ¶ 241 (“Immigrants who are chilled from accessing publicly funded health insurance programs for which they are eligible will be more likely to defer primary or preventive healthcare. Deferred care leads to more complex medical conditions later on that are more expensive to treat.“). Harm to the financial well-being of the states falls within the zone of interests protected by the statute. As stated in the prior order, the affidavit of support section creates a legally enforceable contract against the sponsor and the states may bring an action to compel reimbursement of government expenses. See
In a footnote, defendants contend that plaintiffs’ Fifth Amendment claims fail the zone of interests test because the Supreme Court has suggested that there is a heightened zone of interests requirement for implied causes of action such as plaintiffs’ constitutional claim. Mtn. at 8 n.2. Yet, in the very case that defendants cite for this proposition, Clarke v. Securities Industry Association, 479 U.S. at 400 n.16, the Court cautioned that “[w]hile inquiries into reviewability or prudential standing in other [non-APA] contexts may bear some resemblance to a ‘zone of interest’ inquiry under the APA, it is not a test of universal application.” The Court went on to distinguish earlier dicta suggesting a zone of interest inquiry was applicable to constitutional claims, stating “[w]e doubt, however, that it is possible to formulate a single inquiry that governs all statutory and constitutional claims.” Id. (citing Ass‘n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)). As plaintiffs point out, the Ninth Circuit has also questioned whether a zone of interests test can be applied in light of the Court‘s decision in Lexmark, which focused on Congress‘s intent in creating statutory causes of action as opposed to causes of action that arise under the Constitution. See Sierra Club v. Trump, 929 F.3d 670, 701–02 (9th Cir. 2019) (“[W]e doubt that any zone of interests test applies to Plaintiffs’ equitable cause of action.“). Accordingly, the court declines to apply a zone of interest test to plaintiffs’ constitutional claims.
In sum, the zone of interests test is not “especially demanding,” Lexmark, 572 U.S. at 130, and, “at the very least, the [states‘] interests are ‘marginally related to’ and ‘arguably within’ the scope of the statute.” E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1270 (9th Cir. 2020) (quoting Pottawatomi Indians, 520 U.S. at 175–76). The court, therefore, DENIES defendants’ motion with respect to zone of interests.
4. First and Fourth Claims—Contrary to Law and Arbitrary and Capricious
Turning to defendants’ motion with regard to individual claims, the court addresses plaintiffs’ first and fourth claims together as they present a related issue. In its preliminary injunction order, the court determined that plaintiffs were likely to succeed on the merits of their claim that the Rule was not in accordance with the INA. Dkt. 120 at 48. After a lengthy review of the prior legislative, regulatory, and judicial history of the term “public charge,” the court determined that DHS‘s interpretation of the term “public charge” was not reasonable at Chevron step two. In its order staying the injunction, the Ninth Circuit determined that, at Chevron step one, the term “public charge” is not a term of art and not self-defining—thus, it was ambiguous. City & Cty. of San Francisco, 944 F.3d at 792. At step two, the court also reviewed the lengthy legislative history and case law surrounding the term “public charge” and concluded that there has not been “one fixed understanding of ‘public charge’ that has endured since 1882.” Id. at 796. Instead, “[i]f anything has been consistent, it is the idea that a totality-of-the-circumstances test governs public-charge determinations. But different factors have been weighted more or less heavily at different times, reflecting changes in the way in which we provide assistance to the needy.” Id. In resolving the step two analysis, the Ninth Circuit determined that the Rule was a reasonable interpretation of the INA. Id. at 799.
Also in its prior order, this court determined that plaintiffs were likely to succeed on the merits that the Rule is arbitrary and capricious because DHS failed to consider costs and benefits, including costs to state governments and health effects on state populations. Dkt. 120 at 53. On appeal, the Ninth Circuit motions panel discussed both the cost-benefit issue and the public health effect issue. With regard to the former, the court observed that DHS “addressed at length the costs and benefits associated with the Final Rule.” City & Cty. of San Francisco, 944 F.3d at 801. With respect to public health effects, the Ninth Circuit noted that “DHS not only addressed these concerns directly, it changed its Final Rule in response to the comments.” Id.. The court determined that DHS could change its policy as long as DHS acknowledged the change and explained the reasons for it. Id. at 805. In sum, the court held that DHS demonstrated that it was likely to succeed on the merits of the arbitrary and capricious claim.
The Ninth Circuit motions panel decision to stay the preliminary injunction presents novel procedural and substantive questions. The court requested supplemental briefing on these issues, (Dkt. 176), to which both parties responded (Dkts. 177, 178). As a procedural matter, defendants’ motion to dismiss comes after the motions panel‘s opinion staying the preliminary injunction but before the merits panel has issued its opinion on the preliminary injunction. The merits panel may issue an opinion that comes out entirely the same way as the motions panel, adopts an entirely contrary view, or lands somewhere in between. The prospect of conflicting or confirming guidance indicates that deciding these issues prior to the merits panel‘s opinion may be premature.
With respect to the substantive issues, the Ninth Circuit motion panel opinion implicates both the law of the circuit and the law of the case. Under the law
A motions panel opinion reviewing a motion to stay an injunction is not necessarily binding on a future merits panel reviewing the substance of that injunction. See E. Bay Sanctuary II, 950 F.3d at 1264 (“The decision whether to grant a stay—much like the decision whether to grant a preliminary injunction—is a ‘probabilistic’ endeavor. We discuss the merits of a stay request in ‘likelihood terms,’ and exercise a ‘restrained approach to assessing the merits.’ Such a predictive analysis should not, and does not, forever bind the merits of the parties’ claims.” (quoting Sierra Club, 929 F.3d at 688)); see also Innovation Law Lab v. Wolf, 951 F.3d 1073, 1081 (9th Cir. 2020) (citing E. Bay Sanctuary II for proposition that “a motions panel‘s legal analysis, performed during the course of deciding an emergency motion for a stay, is not binding on later merits panels“). While East Bay Sanctuary II indicated that an appellate decision regarding a stay “should not, and does not, forever bind the merits of the parties’ claims,” 950 F.3d at 1264, this court is bound to follow opinions constituting law of the circuit, see id. at 1263 n.3 (“[T]he first panel to consider an issue sets the law . . . for all the inferior courts in the circuit” and “future panels of the court of appeals . . . .” (first and second alterations in original) (internal quotation marks omitted) (quoting Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001))).
Applying the motions panel‘s opinion would also require determining the extent to which the opinion is binding (or persuasive) on each of plaintiffs’ claims that defendants now seek to dismiss in full. As plaintiffs point out in the supplemental brief, the motions panel did not address all legal issues raised by the States and did not assess the complete administrative record in reaching its decision. Alternatively, as defendants note, if the court dismisses the first or fourth claims, such a decision would moot the preliminary injunction appeal on those causes of action.
Given the minefield of potential issues, a cautious approach is warranted. As part of its request for supplemental briefing, the court asked whether it should defer ruling on plaintiffs’ first and fourth claims until the Ninth Circuit merits panel has issued its opinion. Dkt. 176 at 2–3. Both parties responded that they were not opposed to such a course of action. Dkt. 177 at 9; Dkt. 178 at 10. Accordingly, the court DEFERS RULING ON defendants’ motion to dismiss plaintiffs’ first and fourth causes of action until the Ninth Circuit issues an opinion on the preliminary injunction or otherwise disposes of the case.
5. Second Claim—APA Contrary to Law, Rehabilitation Act
Defendants move to dismiss plaintiffs’ second claim, which alleges a violation of
“In the usual course, when an agency is authorized by Congress to issue regulations and promulgates a regulation interpreting a statute it enforces, the interpretation receives deference if the statute is ambiguous and if the agency‘s interpretation is reasonable. This principle is implemented by the two-step analysis set forth in Chevron.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2124 (2016) (citing Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)).
At the first step, a court must determine whether Congress has “directly spoken to the precise question at issue.” If so, “that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” If not, then at the second step the court must defer to the agency‘s interpretation if it is “reasonable.”
Id. at 2124–25 (quoting Chevron, 467 U.S. at 842–44).
“[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency‘s answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843; see also Michigan v. E.P.A., 135 S. Ct. 2699, 2707 (2015) (“Even under this deferential standard, however, agencies must
operate within the bounds of reasonable interpretation.” (internal quotation marks and citation omitted)). The Chevron analysis calls upon the court to “employ[] traditional tools of statutory construction” to fulfill its role as “the final authority on issues of statutory construction.” Chevron, 467 U.S. at 843 n.9; accord Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1630 (2018).
The Rehabilitation Act prohibits “any program or activity receiving federal financial assistance” or “any program or activity conducted by any Executive agency,” from excluding, denying benefits to, or discriminating against persons with disabilities.
In its prior order on plaintiffs’ motion for preliminary injunction, the court determined that plaintiffs were unlikely to succeed on their Rehabilitation Act claim for two reasons. First, the Rehabilitation Act requires that a plaintiff show that a disabled person was denied services “solely by reason of her handicap.” The Rule does not deny any alien admission into the United States, or adjustment of status, “solely by reason of” disability. All covered aliens, disabled or not, are subject to the same inquiry: whether they are likely to use one
Second, the INA explicitly lists “health” as a factor that an officer “shall . . . consider” in making a public charge determination.
Defendants argue that plaintiffs’ second claim fails because the Rehabilitation Act requires that a disabled person be denied services by reason of her disability and this causal standard is strict. Mtn. at 15. According to defendants, plaintiffs cannot meet this strict causal requirement because a medical condition may constitute one factor that is considered as part of the totality of the circumstances test. Id. In response, plaintiffs first point out that Congress did not exempt DHS from the Rehabilitation Act‘s requirements. Opp. at 13. According to plaintiffs, recipients of Medicaid for more than 12 months, especially those with disabilities, are by definition a public charge. Id. at 14. Thus, the Rule would deny such individuals meaningful access to immigration benefits because of their disability-related needs. Id.
Plaintiffs’ arguments are unconvincing. Plaintiffs assert that the Rule is dispositive with regard to a disabled alien‘s public charge determination as long as the individual in question is a Medicaid recipient for more than 12 months. Opp. at 14; Compl. ¶ 51. DHS acknowledged the impact on those individuals with disabilities when it stated that it understands that individuals with disabilities receive public benefits that are listed in the rule. However, Congress did not specifically provide for a public charge exemption for individuals with disabilities and in fact included health as a mandatory factor in the public charge inadmissibility consideration. Therefore, DHS will retain the designation of Medicaid and SNAP as public benefits, notwithstanding the potentially outsized impact of such designation on individuals with disabilities.
84 Fed. Reg. at 41,368 (footnote omitted). While there may be a higher correlation between Medicaid enrollment and having a disability, it does not follow that the disability is the sole reason an individual is determined to be a public charge. When DHS considers public benefits, such as Medicaid, the factor being considered is not the disability but an individual‘s “assets, resources, and financial status.”
Even if the court were to find that receipt of Medicaid was determinative for individuals with disabilities, plaintiffs have not put forward a convincing argument that DHS can disregard Congress‘s mandate to consider an alien‘s health as part of the public charge determination. The court‘s reasoning from the preliminary injunction order applies here. Congress, not the Rule, requires DHS to take this factor into account. The Ninth Circuit agreed with this rationale, observing that the 1996 amendment to the INA requiring immigration officers to consider health occurred twenty-three years after passage of the Rehabilitation Act. Thus, the court stated “[w]e cannot see how a general provision in one statute constrains an agency given a specific charge in a subsequent law.” City & Cty. of San Francisco, 944 F.3d at 800.
Thus, plaintiffs have not plausibly alleged sufficient facts to state a claim for an APA cause of action as contrary to the Rehabilitation Act. The court GRANTS defendants’ motion to dismiss plaintiffs’ second cause of action. Because no factual allegations could alter the court‘s determination, further amendment would be futile and the dismissal is without leave to amend.
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6. Third Claim—APA Contrary to Law, State Healthcare Discretion
Defendants move to dismiss plaintiffs’ third claim for violation of the APA as contrary to state healthcare discretion. The court did not previously address this claim as part of the preliminary injunction order. The Ninth Circuit likewise did not address this issue.
In the complaint, plaintiffs advance two theories in support of their third claim. First, they contend that the Rule will effectively deprive plaintiffs of their statutory option under the
Defendants argue that the Rule does not deprive the states of their statutory option to extend program eligibility for lawfully residing children and pregnant women under Medicaid and the Children‘s Health Insurance Program (“CHIP“) during their first five years in the U.S. Mtn. at 16. Defendants point out that the Rule explicitly excludes CHIP from the definition of public benefit and also excludes public benefits received by children eligible for acquisition of citizenship and Medicaid benefits received by aliens under 21 or pregnant women through 60 days after the last day of pregnancy. Id. Thus, the Rule does not deprive plaintiffs of their authority to provide these benefits. Defendants also contend that the Rule does not limit or change an alien‘s entitlement to public benefits; rather, it requires immigration officials to consider the receipt of benefits as part of the totality of the circumstances test. Id.
In response, plaintiffs argue that the Rule‘s known and predictable chilling effects will effectively deprive plaintiffs of their statutory option to extend program eligibility to certain groups. Opp. at 15. Plaintiffs point out that several states have
Plaintiffs’ arguments implicate Chevron step two, where “deference is not owed to an agency decision if it construes a statute in a way that is contrary to congressional intent or frustrates congressional policy.” CHW W. Bay v. Thompson, 246 F.3d 1218, 1223 (9th Cir. 2001) (citing Anaheim Mem‘l Hosp. v. Shalala, 130 F.3d 845, 849 (9th Cir. 1997)). As an initial observation, the Rule does not facially detract from or limit the authority with which Congress empowered the states under CHIPRA or PRWORA. As defendants note in their brief, the Rule directly affects the rights and obligations of those aliens that fall under the scope of the public charge provision. Plaintiffs acknowledge this point as they argue that the Rule‘s chilling effect will effectively deprive them of their statutory options.
There are two reasons why plaintiffs fail to state a claim. First, the statutory schemes referenced in the complaint are permissive, not mandatory. These are programs that states may implement or extend to applicable individuals. See
Second, each individual is also free to choose whether he or she will accept public benefits from the state. Plaintiffs have alleged that the Rule will have a chilling effect on immigrants, including those who are not subject to the Rule. Compl. ¶¶ 145–46. For purposes of a motion to dismiss, the court accepts as true the chilling effect of the Rule on enrollment in public benefit programs. Yet, even so, plaintiffs have not demonstrated that the Rule requires or prevents the states from undertaking a particular course of action. Instead, the Rule impacts the choices of individuals who may or may not be under the Rule‘s purview. The opposition even refers to the “particularly hard choices” faced by those subject to the Rule. Opp. at 15. Those individuals may be dissuaded or chilled from participating in benefit programs, but the actions of such third parties do not frustrate the availability of the benefits in the first instance. The states remain free to offer benefits.
Thus, the Rule does not prevent the states from offering public benefit programs authorized by Congress and is not contrary to law. Accordingly, defendants’ motion to dismiss plaintiffs’ third cause of action is GRANTED. Because no factual allegations could alter the court‘s determination, further amendment would be futile
7. Fifth and Sixth Claims—Equal Protection
Defendants move to dismiss plaintiffs’ fifth and sixth claims for violation of the Equal Protection component of the
Defendants argue that plaintiffs’ Equal Protection claims should be dismissed because the Rule is facially neutral, and plaintiffs cannot establish discriminatory intent. Mtn. at 19. Defendants contend that the Supreme Court‘s decision in Trump v. Hawaii, 138 S. Ct. 2392, 2418 (2018), set a “deferential standard of review” that applies to immigration policies. Mtn. at 20. According to defendants, the Rule is valid under either Hawaii‘s standard of review or rational basis review because the Rule is plausibly related to DHS‘s stated objectives. Id. Defendants also contend that the public statements by government officials on which plaintiffs rely were not made by DHS officials and have no express connection to the Rule. Id. at 21.
Plaintiffs respond that the applicable standard of review is provided by Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), under which they must produce direct or circumstantial evidence that a discriminatory reason more likely than not motivated the defendants and that the defendants’ action adversely affected the plaintiffs in some way. Opp. at 21. Plaintiffs argue that they have alleged facts that are indicative of a discriminatory intent. These include: the Rule is more likely to prevent immigrants of color from adjusting their status or changing their visas compared to White immigrant counterparts, which DHS acknowledged, (id. at 22); the Rule reflects a pattern of bias against non-White, non-European immigrants as illustrated by pre- and post-election statements by the President and other statements by decisionmakers (id. at 22–24); and plaintiffs allege that circumstantial evidence in the form of the departure from the normal procedures and the manipulation by the White House of DHS officials also support an inference of discriminatory intent (id. at 24). Plaintiffs next argue that Trump v. Hawaii is not applicable where, as here, DHS‘s regulated activity applies to people already residing in the United States and national security concerns are not present. Id.
The parties’ dispute falls into two general camps. First, they disagree as to the applicable framework to review plaintiffs’ Equal Protection challenge. Plaintiffs assert that the court should apply the disparate treatment framework described in Arlington Heights so that plaintiffs can demonstrate discriminatory intent. Defendants
i. Whether Trump v. Hawaii Applies to the Rule
Relevant to the public charge rule, there are two broad principles intricately intertwined with the Supreme Court‘s immigration law jurisprudence. First, the Court has long recognized that Congress‘s power concerning the initial entry of aliens into the country is plenary. See Fiallo v. Bell, 430 U.S. 787, 792 (1977) (“This Court has repeatedly emphasized that ‘over no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens.” (quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)). Second, once an alien arrives in the United States and begins establishing ties to the country, the Court has recognized certain constitutional protections extend to those persons, even if their presence is “unlawful, involuntary, or transitory.” Mathews v. Diaz, 426 U.S. 67, 77 (1976) (“There are literally millions of aliens within the jurisdiction of the United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law.” (citations omitted)).
1. Plenary Power Jurisprudence
The Supreme Court‘s recognition of Congress‘s plenary power over immigration first arose soon after the passage of the immigration legislation in the latter half of the nineteenth century. In 1882, Congress enacted the
[t]he power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of any one.
130 U.S. at 609. In a passage that was later cited with approval by the Court in Fong Yue Ting, Justice Field also expounded on Congress‘s plenary power with regard to different races of aliens:
The government, possessing the powers which are to be exercised for protection and security, is clothed with authority to determine the occasion on which the
powers shall be called forth; and its determination, so far as the subjects affected are concerned, is necessarily conclusive upon all its departments and officers. If, therefore, the government of the United states, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects.
Id. at 606; Fong Yue Ting, 149 U.S. at 706.
However, around the turn of the century, “the Court began to walk back the plenary power doctrine in significant ways.” Castro v. U.S. Dep‘t of Homeland Sec., 835 F.3d 422, 441 (3d Cir. 2016). In Kaoru Yamataya v. Fisher, 189 U.S. 86, 87 (1903), a Japanese immigrant entered the United States but a few days later, an immigration officer sought her deportation because he determined that she was likely to become a public charge. The Court, while acknowledging its plenary power as described in Fong Yue Ting, stated that immigration officers could not “disregard the fundamental principles that inhere in ‘due process of law’ as understood at the time of the adoption of the Constitution.” Id. at 100. In Yamataya, the fundamental principle at stake was the procedural due process right to be heard prior to being taken into custody and deported. Id. at 101. As the Third Circuit recently described, Yamataya represented a “turning point” in the Supreme Court‘s plenary power jurisprudence such that Congress‘s power was qualified by basic constitutional considerations. Castro, 835 F.3d at 442 (quoting Henry M. Hart, Jr.,
The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic
, 66 Harv. L. Rev. 1362, 1390 n.85 (1953)).Though it was a turning point for immigrants inside the United States, Yamataya did not alter Congress‘s plenary power at initial entry because in United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950), and Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953), the Court upheld actions by immigration officials to exclude two aliens “on the threshold of initial entry,” Mezei, 345 U.S. at 212, without the procedural due process rights afforded in Yamataya. ”Knauff and Mezei essentially restored the political branches’ plenary power over aliens at the border seeking initial admission.” Castro, 835 F.3d at 443. Thus, if the immigration action pertains to initial admission, then Congress‘s power is plenary. In Landon v. Plasencia, the Court summarized these two competing interests, stating that it “has long held that an alien seeking initial admission to the United States requests privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative. 459 U.S. 21, 32 (1982) (citing Knauff, 338 U.S. at 542; and Nishimura Ekiu v. United States, 142 U.S. 651, 659–60 (1892)). “As we explained in Johnson v. Eisentrager, 339 U.S. 763, 770 (1950), however, once an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly. Our cases have frequently suggested that a continuously present resident alien is entitled to a fair hearing when threatened with deportation.” Id. (citations omitted).
With this framing in mind, the leading case cited by defendants, Trump v. Hawaii,
The Hawaii court also framed the initial entry cases in the context of national security, stating ”Mandel‘s narrow standard of review ‘has particular force’ in admission and immigration cases that overlap with ‘the area of national security.‘” Id. (quoting Kerry v. Din, 576 U.S. 86, 104 (2015) (Kennedy, J., concurring)). In Hawaii, the rationale for such a standard of review rested on the intersection of immigration and national security: “‘[a]ny rule of constitutional law that would inhibit the flexibility’ of the President ‘to respond to changing world conditions should be adopted only with the greatest caution,’ and our inquiry into matters of entry and national security is highly constrained.” Id. at 2419–20 (quoting Diaz, 426 U.S. at 81–82).
Yet, despite the foregoing buildup, the Court specifically declined to determine whether Mandel applied in the particular case concerning the President‘s proclamation and instead pivoted to a rational basis standard of review. Id. at 2420 (“For our purposes today, we assume that we may look behind the face of the Proclamation to the extent of applying rational basis review.“). In its rational basis analysis, the Court examined the facts underlying the proclamation, id. at 2421 (rejecting the argument that five of seven countries are Muslim-majority “given that the policy covers just 8% of the world‘s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks“), and the process by which it was produced, id. (“The Proclamation, moreover, reflects the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies.“).
After the Hawaii decision, lower courts have recognized that the deferential standard articulated in Mandel, and cited in Hawaii and Fiallo v. Bell, applies to initial admission and exclusion cases but not to aliens who are lawfully admitted into the United States. For example, several opinions concerning the revocation of temporary protected status (“TPS“) for certain groups, distinguished Hawaii on the
Here, the Rule applies to immigrants and nonimmigrants seeking initial admission to the United States. 84 Fed. Reg. at 41,295. It also applies to aliens who are already in the United States and are seeking adjustment of status. Id. Because the Rules applies in part to aliens who are already in the United States, defendants cannot entirely rely on the plenary power doctrine to uphold the Rule. Accordingly, the court proceeds to determine whether an alien inside the United States can state an Equal Protection claim.
2. Constitutional Rights of Aliens Admitted to the United States
As Yamataya and similar cases demonstrate, persons within the United States can assert at least some rights guaranteed by the
In Mathews v. Diaz, the Court indicated that the equal protection component of the
In a case closer to the question at issue here, in Kwai Fun Wong v. United States, 373 F.3d 952, 970–73 (9th Cir. 2004), the Ninth Circuit reviewed at length whether an alien who has not “entered” the United States for purposes of the INA but has physically entered the United States could state a discrimination claim under the equal protection component of the Due Process Clause of the
from coming within the ambit of the equal protection component of the Due Process Clause. We cannot countenance that the Constitution would permit immigration officials to engage in such behavior as rounding up all immigration parolees of a particular race solely because of a consideration such as skin color. Although “Congress has ‘plenary power’ to create immigration law, and . . . the judicial branch must defer to executive and legislative branch decisionmaking in that area, . . . . that power is subject to important constitutional limitations.”
Id. at 974 (alterations in original) (footnote omitted) (quoting Zadvydas v. Davis, 533 U.S. 678, 695 (2001)). Kwai Fun Wong distinguished initial entry cases on the grounds that those cases were determinative of “the procedural rights of aliens with respect to their applications for admission,” but initial entry cases have not been applied to “deny all constitutional rights to non-admitted aliens.” Id. at 971. If Kwai Fun Wong establishes that non-admitted, but physically present aliens can bring an Equal Protection challenge, then it follows that admitted aliens subject to the Rule (who are further from Congress‘s plenary power) may also bring an Equal Protection challenge.
Read together, Mathews, Plyler, and Kwai Fun Wong stand for the proposition that aliens who have been admitted to the United States are not precluded from bringing an Equal Protection challenge on the theory that they were discriminated against on the basis of their race or ethnicity.
3. Resolving the Applicable Standard of Review
Plaintiffs urge the court to apply the Arlington Heights inquiry to the Rule so that they can assert an Equal Protection challenge on behalf of aliens who have been admitted to the United States. An important point is worth noting at this juncture: Arlington Heights did not address what level of scrutiny—i.e., strict
In Department of Homeland Security v. Regents of the University of California, writing for a plurality with regard to the plaintiffs’ Equal Protection claim, Chief Justice Roberts stated that “[t]o plead animus, a plaintiff must raise a plausible inference that an ‘invidious discriminatory purpose was a motivating factor’ in the relevant decision. Possible evidence includes disparate impact on a particular group, ‘[d]epartures from the normal procedural sequence,’ and ‘contemporary statements by members of the decisionmaking body.‘” 140 S. Ct. at 1915 (second alteration in original) (quoting Arlington Heights, 429 U.S. at 266–68). This indicates that application of the Arlington Heights framework is appropriate to evaluate whether plaintiffs plead discriminatory animus. Further, the plurality sidestepped the issue of whether the Court‘s opinion in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 488 (1999), foreclosed a constitutional claim by an alien unlawfully present in the United States. See Regents, 140 S. Ct. at 1915. Because the court has likewise determined that Trump v. Hawaii (and the plenary power doctrine more generally) does not apply to the Rule in its entirety, similar to Regents, it is appropriate to apply Arlington Heights in this instance.
Several recent district court opinions have also applied the Arlington Heights framework to evaluate whether the federal government acted with discriminatory purpose despite a facially neutral action. In Cook County, Illinois v. Wolf, No. 19 C 6334, 2020 WL 2542155, at *7 (N.D. Ill. May 19, 2020), the district court in the Northern District of Illinois declined to apply Hawaii and instead applied what the court described as ”Arlington Heights-style strict scrutiny,” in evaluating a motion to dismiss the plaintiffs’ Equal Protection challenge to the Rule. The court reasoned that in “contrast to the President‘s national security and international relations justifications for the executive order in Hawaii, DHS justified and continues to justify the Final Rule solely on economic grounds.” Id.; see also CASA de Maryland, Inc. v. Trump, 355 F. Supp. 3d 307, 312, 324 (D. Md. 2018) (declining to apply Hawaii and Mandel to an Equal Protection challenge against the federal government‘s decision to TPS status for El Salvador).
ii. Whether Plaintiffs’ Allegations Plausibly State a Claim
“Under Arlington Heights, a plaintiff must ‘simply produce direct or circumstantial evidence demonstrating that a discriminatory reason more likely that [sic] not motivated the defendant and that the defendant‘s actions adversely affected the plaintiff in some way.‘” Ave. 6E Invs., LLC v. City of Yuma, Ariz., 818 F.3d 493, 504 (9th Cir. 2016) (internal quotation marks omitted) (quoting Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1158 (9th Cir. 2013)); see also Regents, 140 S. Ct. at 1915. “A plaintiff does not have to prove that the discriminatory purpose was the sole purpose of the challenged action, but only that it was a ‘motivating factor.‘” Ave. 6E Invs., (quoting Arce v. Douglas, 793 F.3d 968, 977 (9th Cir. 2015)). While Arlington Heights describes an evidentiary framework rather than a pleading standard, the Ninth Circuit has used its factors in evaluating a district court‘s dismissal of a complaint pursuant to
In Arlington Heights, the Court described a series of non-exhaustive factors that guides the inquiry into whether a defendant‘s actions were motivated by a discriminatory purpose “by examining (1) statistics demonstrating a ‘clear pattern unexplainable on grounds other than’ discriminatory ones, (2) ‘[t]he historical background of the decision,’ (3) ‘[t]he specific sequence of events leading up to the challenged decision,’ (4) the defendant‘s departures from its normal procedures or substantive conclusions, and (5) relevant ‘legislative or administrative history.‘” Pac. Shores Props., 730 F.3d at 1158–59 (alterations in original) (quoting Arlington Heights, 429 U.S. at 266–68; and citing Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 703 (9th Cir. 2009)); see also Avenue 6E Invs., 818 F.3d at 504 (applying Arlington Heights factors to an Equal Protection claim dismissed pursuant to
1. Disparate Impact
Here, plaintiffs allege that the Rule is “more likely to prevent immigrants of color in the United States from adjusting their status, or extending or changing their visas, compared to their White immigrant counterparts.” Compl. ¶ 107. The complaint also cites the Rule, where DHS stated that it “recognizes that it is possible that the inclusion of benefits such as SNAP and Medicaid may impact in greater numbers communities of color, including Latinos and [Asian-American, Pacific Islanders], as well as those with particular medical conditions that require public benefits for treatment, and therefore may impact the overall composition of immigration with respect to these groups.” 84 Fed. Reg. at 41,369. Plaintiffs have plausibly alleged that the Rule will impact certain racial groups more heavily than others.
However, the court notes that the plurality opinion in Regents found that the disparate impact of the DACA rescission on Latinos was not sufficient to state a claim. Writing for himself and three other justices, Chief Justice Roberts stated “because Latinos make up a large share of the unauthorized alien population, one would expect them to make up an outsized share of recipients of any cross-cutting immigration relief program. . . . Were this fact sufficient
2. Statements by Decisionmakers
Next, plaintiffs cite evidence of potential bias exemplified by statements of the President and his advisors. For example, as a candidate, President Trump called Mexican immigrants “rapists” and “people who have a lot of problems.” Compl. ¶ 285. After his inauguration, the President disparaged an immigration plan that would protect people from El Salvador, Haiti, and African countries, asking, “Why are we having all these people from shithole countries come here?” Id. ¶ 292. Plaintiffs allege that the President was widely reported to have expressed his preference for more immigrants from places like Norway, where the population is over 90 percent white. Id. In May 2018, the President called immigrants “animals” during a public White House meeting. Id. ¶ 294. In addition to the President, plaintiffs allege that other senior administration officials made statements indicative of racial bias. But they only offer one example; defendant Kenneth Cuccinelli is alleged to have stated that Washington, D.C.‘s animal control policies were worse than U.S. immigration policies because, “You can‘t break up rat families.” Id. ¶ 299.
Defendants contend that these statements were not made by DHS officials and have no express connection to the Rule. Mtn. at 21. It is notable that one of the alleged statements is attributed to Kenneth Cuccinelli who is a named defendant in this case and is alleged to be responsible for implementing and enforcing immigration laws. Compl. ¶¶ 28, 299. However, that is the only statement offered by plaintiffs made by a decisionmaker who was directly involved in the Rule‘s promulgation and it is not clearly tied to the Rule.
With regard to the President‘s statements, in Regents, 140 S. Ct. at 1916, Chief Justice Roberts’ plurality opinion found the President‘s statements as “unilluminating” and instead noted that “relevant actors were most directly [the] Acting Secretary [of Homeland Security] and the Attorney General.” The opinion stated that “respondents did not ‘identif[y] statements by [either] that would give rise to an inference of discriminatory motive.‘” Id. (alterations in original) (citation omitted). Next, Chief Justice Roberts found the President‘s statements were “remote in time and made in unrelated contexts” and did not “qualify as ‘contemporary statements’ probative of the decision at issue.” Id. (quoting Arlington Heights, 429 U.S. at 268). While a plurality opinion, this reasoning suggests that the President‘s statements, which have no direct connection to the Rule are not relevant to the Equal Protection analysis.
Applying here, plaintiffs allege both pre- and post-inauguration statements by the President. The pre-inauguration statements, Compl. ¶¶ 285–87, are similar to those in Regents that are more remote in time and not applicable to the agency action at issue. The post-inaugurations statements pertain to the same time period as the beginning of the rulemaking process but are not connected to the Rule. The closest statement concerning an immigration plan was in reference to a draft plan that would have protected individuals with TPS status. Id. ¶ 292. In sum, plaintiffs have identified a few statements made in unrelated contexts by the President and only one comment from a DHS official that did not appear to have any connection to the Rule or the rulemaking process. They
3. Departure from Normal Procedures
Plaintiffs also contend that the Rule departed from normal procedures as evidenced by the efforts of White House advisor Stephen Miller‘s comments to fast-track the Rule to completion. Compl. ¶¶ 300–02. Defendants assert that the text of the Rule provides the most reliable indicia of its intent and contends that the Rule is devoid of any discriminatory justifications. Mtn. at 20. They also argue that the proposed rule, extensive notice and comment process, and changes from the proposed to final rules undermine allegations of improper bias. Id. at 20–21.
The text of the Rule, while a relevant factor, is not dispositive because the Arlington Heights analysis presumes that the official government action in question is facially neutral. 429 U.S. at 266 (“Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face.” (citations omitted)).
However, plaintiffs’ allegations barely raise an inference of an improper departure from the norm. Cf. Regents, 908 F.3d at 519 (“DACA received reaffirmation by the agency as recently as three months before the rescission, only to be hurriedly cast aside on what seems to have been a contrived excuse (its purported illegality). This strange about-face, done at lightning speed, suggests that the normal care and consideration within the agency was bypassed.“). Plaintiffs’ allegations that the Rule was fast tracked do not raise an inference of discriminatory intent. This rulemaking process was not a 3-month about-face; the NPRM began a year before the final Rule was published. At most, they plausibly allege that defendants wanted to implement the Rule sooner rather than later.
In light of the foregoing, plaintiffs have not alleged sufficient factual matter to state a claim for an Equal Protection violation. The court GRANTS defendants’ motion to dismiss plaintiffs’ fifth cause of action. Because plaintiffs could allege additional factual matter, the dismissal is with leave to amend.6
iii. Sixth Claim—Unconstitutional Animus
In a footnote, defendants argue that plaintiffs’ sixth claim should be dismissed because it fails to identify any protected class, rather, plaintiffs allege that the Rule was adopted to harm a politically unpopular group. Mtn. at 21 n.9. In response, plaintiffs attempt to clarify the claim, stating that the sixth claim incorporates by reference plaintiffs’ previous allegations including the allegation that the Rule is intended to target immigrants of color. Opp. at 22 n.10.
In their complaint, plaintiffs’ sixth claim incorporates by reference the allegations set forth in the preceding paragraphs of the complaint. Compl. ¶ 344. The sixth claim goes on to allege that “[t]he classification here further violates equal protection principles because defendants adopted it to harm a politically unpopular group and advance unconstitutional animus, and therefore, it is without a permissible, rational basis.” Id. ¶ 345.
not
a traditionally suspect class.” Id. (emphasis added)There are two separate problems with the sixth claim. First, the unpopular group referenced in paragraph 345 is non-White, non-European immigrants. Opp. at 22 n.10. Yet, plaintiffs’ framing of this group is based on the group‘s racial and ethnic composition, a traditionally suspect class. See Compl. ¶ 305 (“The Administration has identified a politically unpopular minority, namely non-White, non-European immigrants . . . .“). Thus, the more searching rational basis of review is not available to them.
Second, the factual allegations for the fifth and sixth claims are the same. Assuming plaintiffs are able to state a claim for violation of the Equal Protection component of the
Accordingly, the court GRANTS defendants’ motion to dismiss plaintiffs’ sixth cause of action. Because the claim is duplicative of plaintiffs’ fifth claim, the dismissal is without leave to amend.
CONCLUSION
For the foregoing reasons, the court DENIES defendants’ motion to dismiss with respect to their standing, ripeness, and zone of interest challenges. Defendants’ motion to dismiss plaintiffs’ second cause of action for violation of the APA, contrary to the Rehabilitation Act, is GRANTED, and the claim is DISMISSED WITHOUT LEAVE TO AMEND; defendants’ motion to dismiss plaintiffs’ third cause of action for violation of the APA, contrary to State Healthcare Discretion, is GRANTED, and the claim is DISMISSED WITHOUT LEAVE TO AMEND; defendants’ motion to dismiss plaintiffs’ fifth cause of action for violation of the
IT IS SO ORDERED.
Dated: August 3, 2020
/s/ Phyllis J. Hamilton
PHYLLIS J. HAMILTON
United States District Judge
Notes
Twombly
/Iqbal
. See Kwai Fun Wong, 373 F.3d at 968 (applying Swierkiewicz to Equal Protection claim that immigration officials discriminated against the plaintiff on the basis of her race).