State of California v. U.S. Department of Homeland Security

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 STATE OF CALIFORNIA, et al.,

Case No. 19-cv-04975-PJH

8 Plaintiffs,

9 v. ORDER GRANTING IN PART,

DENYING IN PART, AND DEFERRING

10 U.S. DEPARTMENT OF HOMELAND RULING IN PART ON MOTION TO

SECURITY, et al., DISMISS

11

Defendants. Re: Dkt. No. 160

12

13

14 Before the court is defendants the Department of Homeland Security (“DHS”), the

15 U.S. Citizenship and Immigration Service (“USCIS”), Chad Wolf,1 and Kenneth

16 Cuccinelli’s (collectively “defendants”) motion to dismiss. The matter is fully briefed and

17 suitable for decision without oral argument. Having read the parties’ papers and carefully

18 considered their arguments and the relevant legal authority, and good cause appearing,

19 the court hereby rules as follows.

20 BACKGROUND

21 This case involves a challenge to the implementation of the final rule entitled

22 “Inadmissibility on Public Charge Grounds,” published by DHS on August 14, 2019. See

23 Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (“the

24 Rule”). On October 10, 2018, DHS began the rulemaking process to create a new

25 framework for the public charge assessment by publishing a Notice of Proposed

26

1 Kevin McAleenen was originally named in the complaint, but as of November 13, 2019,

27

Chad Wolf is the current acting secretary of DHS (see https://www.dhs.gov/person/chad-

1 Rulemaking (“NPRM”). See Inadmissibility on Public Charge Grounds, 83 Fed. Reg.

2 51,114 (Oct. 10, 2018). On August 14, 2019, DHS published the Rule in the Federal

3 Register. Id. at 41,292. The Rule was originally set to become effective on October 15,

4 2019.

5 Publication of the Rule resulted in several complaints filed in federal district courts

6 across the nation. Three such complaints were filed in the Northern District of California

7 and related before this court. Dkt. 24. The present motion involves one of the three

8 cases: State of California, et al. v. U.S. Department of Homeland Security, et al., Case

9 No. 19-cv-04975-PJH, wherein the States of California, Maine, and Oregon, the

10 Commonwealth of Pennsylvania, and the District of Columbia (the “state plaintiffs” or

11 “plaintiffs”) filed a complaint (“Compl.”) asserting six causes of action: (1) Violation of the

12 Administrative Procedure Act (“APA”), 5 U.S.C. § 706—Contrary to Law, the Immigration

13 and Nationality Act (“INA”) and the Illegal Immigration Reform and Immigrant

14 Responsibility Act (“IIRIRA”); (2) Violation of APA, 5 U.S.C. § 706—Contrary to Law,

15 Section 504 of the Rehabilitation Act, codified at 29 U.S.C. § 794 (the “Rehabilitation

16 Act”); (3) Violation of APA, 5 U.S.C. § 706—Contrary to Law, State Healthcare Discretion;

17 (4) Violation of APA, 5 U.S.C. § 706—Arbitrary and Capricious; (5) Violation of the Fifth

18 Amendment’s Due Process clause requiring Equal Protection based on race; (6) Violation

19 of the Fifth Amendment’s Due Process clause, based on a violation of Equal Protection

20 principles based on unconstitutional animus. Dkt. 1.

21 On October 11, 2019, this court issued a preliminary injunction enjoining

22 defendants from applying the Rule to any person residing in the City and County of San

23 Francisco, Santa Clara County, the States of California, Oregon, or Maine, the

24 Commonwealth of Pennsylvania, or the District of Columbia. Dkt. 120 at 92. Defendants

25 appealed the preliminary injunction on October 30, 2019. Dkt. 129. A three-judge panel

26 of the Ninth Circuit stayed the preliminary injunction on December 5, 2019.2 Dkt. 141;

27

1 see City & Cty. of San Francisco v. U.S. Citizenship & Immigration Servs., 944 F.3d 773

2 (9th Cir. 2019). On February 18, 2020, the Ninth Circuit panel voted to deny plaintiffs-

3 appellees’ motions for reconsideration and for rehearing en banc. Dkt. 153. Other

4 district courts also issued preliminary injunctions prohibiting enforcement of the Rule, but

5 these were ultimately stayed by the Supreme Court. See Dep’t of Homeland Security v.

6 New York, 140 S. Ct. 599 (2020); Wolf v. Cook Cty., Illinois, 140 S. Ct. 681 (2020).

7 Accordingly, the Rule went into effect on February 24, 2020.

8 A broader summary of the relevant statutory framework and the changes

9 implemented by the Rule may be found in the court’s preliminary injunction order. Dkt.

10 120 at 6–10. To briefly summarize here, DHS promulgated the Rule pursuant to its

11 authority under the INA, 8 U.S.C. § 1101, et seq., which requires that all noncitizens

12 seeking to be lawfully admitted into the United States or to become lawful permanent

13 residents prove they are not inadmissible. 8 U.S.C. §§ 1361, 1225(a). A noncitizen may

14 be deemed inadmissible on any number of grounds, including that they are “likely at any

15 time to become a public charge.” 8 U.S.C. § 1182(a)(4)(A). The statute directs

16 immigration officials to form an opinion as to whether the applicant “is likely at any time to

17 become a public charge.” Id. In forming that opinion, immigration officers must consider

18 “at a minimum” five statutorily-defined factors: (1) age; (2) health; (3) family status; (4)

19 assets, resources, and financial status; (5) education and skills. 8 U.S.C.

20 § 1182(a)(4)(B)(i). The Rule would define the term “public charge” and set out various

21 criteria for government officials as part of their totality of the circumstances determination.

22 DISCUSSION

23 A. Legal Standard

24 1. Rule 12(b)(1)

25 A federal court may dismiss an action under Federal Rule of Civil Procedure

26

27

Rule on the same day as this court’s geographically limited preliminary injunction order.

1 12(b)(1) for lack of federal subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Rule

2 12(h)(3) similarly provides that a court “must dismiss the action” if it “determines at any

3 time that it lacks subject-matter jurisdiction.” Fed. R. Civ. P. 12(h)(3). “Federal courts are

4 courts of limited jurisdiction” and the burden of establishing subject matter jurisdiction

5 “rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am.,

6 511 U.S. 375, 377 (1994) (citations omitted).

7 A jurisdictional challenge may be facial or factual. Safe Air for Everyone v. Meyer,

8 373 F.3d 1035, 1039 (9th Cir. 2004). When the attack is facial, the court determines

9 whether the allegations contained in the complaint are sufficient on their face to invoke

10 federal jurisdiction. Id. Where the attack is factual, however, “the court need not

11 presume the truthfulness of the plaintiff’s allegations.” Id.

12 When resolving a factual dispute about its federal subject matter jurisdiction, a

13 court may review extrinsic evidence beyond the complaint without converting a motion to

14 dismiss into one for summary judgment. McCarthy v. United States, 850 F.2d 558, 560

15 (9th Cir. 1988) (holding that a court “may review any evidence, such as affidavits and

16 testimony, to resolve factual disputes concerning the existence of jurisdiction”); see also

17 Land v. Dollar, 330 U.S. 731, 735 n.4 (1947) (“[W]hen a question of the District Court’s

18 jurisdiction is raised . . . the court may inquire by affidavits or otherwise, into the facts as

19 they exist.”). “Once the moving party has converted the motion to dismiss into a factual

20 motion by presenting affidavits or other evidence properly brought before the court, the

21 party opposing the motion must furnish affidavits or other evidence necessary to satisfy

22 its burden of establishing subject matter jurisdiction.” Safe Air for Everyone, 373 F.3d at

23 1039.

24 The Ninth Circuit has noted that “jurisdictional dismissals in cases premised on

25 federal-question jurisdiction are exceptional, and must satisfy the requirements specified

26 in Bell v. Hood, 327 U.S. 678 (1946).” Safe Air for Everyone, 373 F.3d at 1039 (quoting

27 Sun Valley Gas., Inc. v. Ernst Enters., 711 F.2d 138, 140 (9th Cir. 1983)). “In Bell, the

1 claim under the constitution or federal statutes clearly appears to be immaterial and

2 made solely for the purpose of obtaining federal jurisdiction or where such claim is wholly

3 insubstantial and frivolous.’” Id. (quoting Bell, 327 U.S. at 682–83).

4 2. Rule 12(b)(6)

5 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the

6 legal sufficiency of the claims alleged in the complaint. Ileto v. Glock Inc., 349 F.3d 1191,

7 1199–1200 (9th Cir. 2003). Under Federal Rule of Civil Procedure 8, which requires that

8 a complaint include a “short and plain statement of the claim showing that the pleader is

9 entitled to relief,” Fed. R. Civ. P. 8(a)(2), a complaint may be dismissed under Rule

10 12(b)(6) if the plaintiff fails to state a cognizable legal theory, or has not alleged sufficient

11 facts to support a cognizable legal theory. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th

12 Cir. 2013).

13 While the court is to accept as true all the factual allegations in the complaint,

14 legally conclusory statements, not supported by actual factual allegations, need not be

15 accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). The complaint must proffer

16 sufficient facts to state a claim for relief that is plausible on its face. Bell Atl. Corp. v.

17 Twombly, 550 U.S. 544, 555, 558–59 (2007).

18 “A claim has facial plausibility when the plaintiff pleads factual content that allows

19 the court to draw the reasonable inference that the defendant is liable for the misconduct

20 alleged.” Iqbal, 556 U.S. at 678. “[W]here the well-pleaded facts do not permit the court

21 to infer more than the mere possibility of misconduct, the complaint has alleged—but it

22 has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ.

23 P. 8(a)(2)). Where dismissal is warranted, it is generally without prejudice, unless it is

24 clear the complaint cannot be saved by any amendment. In re Daou Sys., Inc., 411 F.3d

25 1006, 1013 (9th Cir. 2005).

26 Review is generally limited to the contents of the complaint, although the court can

27 also consider documents “whose contents are alleged in a complaint and whose

1 pleading.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (quoting In re Silicon

2 Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999), superseded by statute on

3 other grounds as stated in In re Quality Sys., Inc. Sec. Litig., 865 F.3d 1130 (9th Cir.

4 2017)); see also Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007) (“[A] court can

5 consider a document on which the complaint relies if the document is central to the

6 plaintiff’s claim, and no party questions the authenticity of the document.” (citation

7 omitted)). The court may also consider matters that are properly the subject of judicial

8 notice (Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001)), and exhibits

9 attached to the complaint (Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d

10 1542, 1555 n.19 (9th Cir. 1989)).

11 B. Analysis

12 1. Standing

13 Federal courts may adjudicate only actual cases or controversies, U.S. Const.

14 art. III, § 2, and may not render advisory opinions as to what the law ought to be or

15 affecting a dispute that has not yet arisen. Aetna Life Ins. Co. of Hartford, Conn. v.

16 Haworth, 300 U.S. 227, 240 (1937). Article III’s “standing” requirements limit the court’s

17 subject matter jurisdiction. Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004)

18 (citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101 (1998)). The

19 burden of establishing standing rests on the party asserting the claim. Renne v. Geary,

20 501 U.S. 312, 316 (1991) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534,

21 546 n.8 (1986)). “In order to establish Article III standing, a plaintiff must have (1)

22 suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the

23 defendant, and (3) that is likely to be redressed by a favorable judicial decision.”

24 California v. Trump, 963 F.3d 926, 935 (9th Cir. 2020) (citing Lujan v. Defs. of Wildlife,

25 504 U.S. 555, 560–61 (1992)). “[A]t the pleading stage, the plaintiff must ‘clearly . . .

26 allege facts demonstrating’ each element.” Spokeo Inc. v. Robins, 136 S. Ct. 1540, 1547

27 (2016) (second alteration in original) (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)).

1 and that party bears the burden of establishing the elements of standing with the manner

2 and degree of evidence required at the successive stages of the litigation.” E. Bay

3 Sanctuary Covenant v. Trump (“E. Bay Sanctuary I”), 932 F.3d 742, 763–64 (9th Cir.

4 2018) (internal quotation marks and citations omitted). They “need only establish a risk

5 or threat of injury to satisfy the actual injury requirement.” Id.; see also Dep’t of

6 Commerce v. New York, 139 S. Ct. 2551, 2565 (2019) (noting that future injuries to

7 states “may suffice if the threatened injury is certainly impending, or there is a substantial

8 risk that the harm will occur” (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149,

9 158 (2014))).

10 Finally, “[s]tates are ‘entitled to special solicitude in our standing analysis.’”

11 California, 963 F.3d at 936 (quoting Massachusetts v. EPA, 549 U.S. 497, 520 (2007)).

12 “[A] state may sue to assert its ‘quasi-sovereign interests in the health and well-being—

13 both physical and economic—of its residents in general.’” Id. (quoting Alfred L. Snapp &

14 Son, Inc. v. Puerto Rico, 458 U.S. 592, 607 (1982)).

15 In the preliminary injunction order, the court found that the harm alleged by the

16 states was not too speculative and, for that reason, they had established standing. Dkt.

17 120 at 83. The court relied on DHS’s own assessments in the Rule and the NPRM that

18 projected a 2.5% disenrollment rate from federal programs, 84 Fed. Reg. at 41,463, and

19 that payments from the federal government to the states would decrease by over $1.5

20 billion, 83 Fed. Reg. at 51,267–69. The court found that plaintiffs had alleged sufficient

21 facts in their complaint, as well as evidence submitted in support of the motion for

22 preliminary injunction, to support a harm similar to that assessed by DHS. Dkt. 120 at 79.

23 The court also determined that the Rule would cause individuals to disenroll from or

24 forego enrolling in Medicaid, the cost of which is split between the federal and state

25 governments. Id. at 80 (“As individuals disenroll, the plaintiffs will no longer be

26 reimbursed for treating them. This will have obvious adverse budgetary

27 consequences.”).

1 benefits, federal health program participants would not distinguish between federal- and

2 state-funded health and social services and, therefore, utilization of all services would be

3 reduced. Mtn. at 5. Thus, in order for the states to suffer a harm, aliens would need to

4 disenroll from federal health benefits, then enroll in state health benefits, and the

5 increased amount of state expenses would need to be greater than the costs incurred but

6 for the Rule. Id. at 6. With regard to a reduction in Medicaid reimbursements,

7 defendants argue that a reduction in Medicaid funding would be commensurate with a

8 reduction in the provision of health services. In other words, utilization of healthcare paid

9 by Medicaid would decrease, which means the amount paid by plaintiffs would also

10 decrease.

11 Defendants’ renewed standing argument does not alter this court’s prior findings.

12 Both DHS’s own analysis and plaintiffs, in their complaint and evidence, demonstrate that

13 the Rule will cause individuals to disenroll or forego enrollment from federal health

14 benefits, including Medicaid. See 84 Fed. Reg. at 41,463. Defendants contend the

15 disenrollment in Medicaid will result in a corresponding decrease in the provision of

16 services and thus no (or speculative) harm. This proposition flies in the face of DHS’s

17 own analysis in the Rule and the evidence submitted by plaintiffs.

18 In the Rule, DHS received a comment stating that hospitals are compelled to

19 provide emergency services to individuals regardless of their ability to pay but those

20 services will go uncompensated if patients are disenrolled from Medicaid. Id. at 41,384.

21 While the Rule provides for an emergency services exemption, the commenter expressed

22 concern that different states would interpret the exemption differently resulting in

23 individuals who would be denied admission or avoid treatment. Id. In response, DHS

24 acknowledged that “increased use of emergency rooms and emergent care as a method

25 of primary healthcare due to delayed treatment is possible and there is a potential for

26 increases in uncompensated care in which a treatment or service is not paid for by an

27 insurer or patient.” Id.

1 states. Plaintiffs’ complaint alleges “[i]ncreased emergency room use by the uninsured

2 leads to an increased financial burden on hospitals, which are required to provide care to

3 all patients—regardless of their ability to pay.” Compl. ¶ 242. In other cases, private

4 providers will pass along the cost of uncompensated care to public and private payers of

5 healthcare resulting in increased costs. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S.

6 519, 593 (Ginsburg, J., concurring in part) (“Health-care providers do not absorb these

7 bad debts. Instead, they raise their prices, passing along the cost of uncompensated

8 care to those who do pay reliably: the government and private insurance companies.”);

9 see also Decl. of Mari Cantwell, Dkt. 18-2, ¶ 40 (“The cost of uncompensated care would

10 be shifted to the broader healthcare delivery system resulting in higher costs for the state,

11 local entities, and private healthcare payers.”); Decl. of Patrick Allen, Dkt. 18-4, ¶ 47 (“If

12 the number of uninsured in Oregon were to increase and overall public health declines as

13 a result of the Rule, Oregon would incur a negative economic impact due to the

14 accompanying increase in uncompensated costs for hospital and emergency room

15 services that would follow. These uncompensated care costs would then be shifted to

16 the broader healthcare delivery systems resulting in higher costs for public and private

17 healthcare payers.”). By indirectly passing the cost of care to the states, the Rule creates

18 and reallocates costs to the states.

19 In sum, plaintiffs have plausibly alleged that a harm will occur—in this instance a

20 reduction in federal funds and a corresponding increase in state funds to cover costs

21 associated with healthcare. As the Ninth Circuit stated in its opinion, “disenrollment from

22 public benefits means a reduction in federal and state transfer payments, so the States

23 will realize some savings in expenditures. Nevertheless, we consider the harms to the

24 States, even if not readily quantifiable, significant.”3 City & Cty. of San Francisco, 944

25 F.3d at 807 (citation omitted). Because the court finds that plaintiffs have established

26

27

3 In their reply brief, defendants concede that the Ninth Circuit’s opinion is controlling on

1 standing, it does not address their remaining standing arguments. See Dkt. 120 at 81–83

2 (finding increased operational costs to provide a basis for standing).

3 For the foregoing reasons, the court DENIES defendants’ motion with respect to

4 standing.

5 2. Ripeness

6 “Ripeness is an Article III doctrine designed to ensure that courts adjudicate live

7 cases or controversies and do not ‘issue advisory opinions [or] declare rights in

8 hypothetical cases.’ A proper ripeness inquiry contains a constitutional and a prudential

9 component.” Bishop Paiute Tribe v. Inyo Cty., 863 F.3d 1144, 1153 (9th Cir. 2017)

10 (alteration in original) (quoting Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d

11 1134, 1138 (9th Cir. 2000) (en banc)).

12 “For a case to be ripe, it must present issues that are definite and concrete, not

13 hypothetical or abstract. Constitutional ripeness is often treated under the rubric of

14 standing because ripeness coincides squarely with standing’s injury in fact prong.” Id.

15 (internal quotation marks and citation omitted); see Thomas, 220 F.3d at 1138–39

16 (“Sorting out where standing ends and ripeness begins is not an easy task. . . . [I]n

17 ‘measuring whether the litigant has asserted an injury that is real and concrete rather

18 than speculative and hypothetical, the ripeness inquiry merges almost completely with

19 standing.’” (citation omitted)). Allegations that a “threat” to a “concrete interest is actual

20 and imminent” are sufficient to allege “an injury in fact that meets the requirements of

21 constitutional ripeness.” Bishop Paiute Tribe, 863 F.3d at 1154. Therefore, if plaintiffs

22 satisfy the Article III standing requirements under Lujan v. Defenders of Wildlife,

23 addressed above, the action here is ripe. See, e.g., Thomas, 220 F.3d at 1139

24 (“Whether the question is viewed as one of standing or ripeness, the Constitution

25 mandates that prior to our exercise of jurisdiction there exist a constitutional ‘case or

26 controversy,’ that the issues presented are ‘definite and concrete, not hypothetical or

27 abstract.’ . . . We need not delve into the nuances of the distinction between the injury in

1 analysis is the same.” (citations omitted)).

2 “In evaluating the prudential aspects of ripeness, our analysis is guided by two

3 overarching considerations: ‘the fitness of the issues for judicial decision and the

4 hardship to the parties of withholding court consideration.’” Id. at 1141 (quoting Abbott

5 Labs. v. Gardner, 387 U.S. 136, 149 (1967), abrogated on other grounds by Califano v.

6 Sanders, 430 U.S. 99 (1977)). When the question presented “is ‘a purely legal one’” that

7 “constitutes ‘final agency action’ within the meaning of § 10 of the APA,” that suggests

8 the issue is fit for judicial decision. Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S.

9 803, 812 (2003). However, an issue may not be ripe for review if “further factual

10 development would ‘significantly advance our ability to deal with the legal issues

11 presented.’” Id. (quoting Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59,

12 82 (1978)).

13 In this case, the court has determined that plaintiffs have standing, therefore, it

14 follows that the case is constitutionally ripe for adjudication. See Thomas, 220 F.3d at

15 1139. The court has not previously addressed prudential ripeness. Defendants contend

16 that plaintiffs’ claims fail the prudential ripeness standard because the claims are

17 premised on speculation about the Rule’s operation in practice and further factual

18 development is required. Mtn. at 7. Plaintiffs assert that the prudential ripeness standard

19 is met because the Rule is final, and plaintiffs have already presented evidence of a

20 chilling effect. Opp. at 6.

21 “Determining whether administrative action is ripe for judicial review requires [a

22 court] to evaluate (1) the fitness of the issues for judicial decision and (2) the hardship to

23 the parties of withholding court consideration.” Nat’l Park Hosp. Ass’n, 538 U.S. at 808

24 (citing Abbott Labs., 387 U.S. at 149). When considering whether issues are fit for

25 review, the question should be a “purely legal one” and the agency action in question

26 should constitute a “‘final agency action’ within the meaning of § 10 of the APA.” Id. at

27 812 (quoting Abbott Labs., 387 U.S. at 149).

1 consideration.” Id. at 808. Generally, a showing of hardship requires demonstrating that

2 the regulation in question creates “adverse effects of a strictly legal kind.” Id. at 809

3 (quoting Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998)). Such

4 adverse effects do not arise if the regulation in question “do[es] not command anyone to

5 do anything or to refrain from doing anything; [it] do[es] not grant, withhold, or modify any

6 formal legal license, power, or authority; [it] do[es] not subject anyone to any civil or

7 criminal liability; [and it] create[s] no legal rights or obligations.” Id. (alterations in original)

8 (quoting Ohio Forestry Ass’n, 523 U.S. at 733).

9 Here, the challenge to the Rule in this case “is a purely legal one,” i.e., whether the

10 INA was properly construed and implemented by DHS. See Abbott Labs., 387 U.S. at

11 149 (noting that “whether the statute was properly construed by the Commissioner” to be

12 a purely legal challenge). Next, the Rule constitutes a “rule” as defined by the APA. See

13 5 U.S.C. § 551(4), (13) (defining “agency action” and “rule”). The text of the Rule

14 confirms that its promulgation was an agency action. See 84 Fed. Reg. at 41,294 (“This

15 rule changes how the Department of Homeland Security (DHS) interprets and

16 implements the public charge ground of inadmissibility.”). This factor indicates the Rule

17 is ripe for review.

18 With respect to hardship, the Rule imposes potential adverse effects of a strictly

19 legal kind. If an alien falls within the Rule’s definition of a public charge as determined by

20 an immigration officer, then he or she is inadmissible. In other words, the Rule defines a

21 legal right—admissibility to the United States. Concurrently, it also defines the legal

22 powers and authorities of federal government officials in evaluating whether an alien is

23 admissible. Of course, the Rule does not define the legal rights of plaintiffs or create any

24 legal obligations directly impacting them. However, the potential adverse effects on

25 individuals cause a direct harm to plaintiffs, as discussed above with regard to plaintiffs’

26 standing.

27 Defendants, citing Habeas Corpus Resource Center v. United States Department

1 from further factual development.” Mtn. at 7. They argue that plaintiffs’ claims are largely

2 based on speculation about the Rule’s operation in practice. Yet, plaintiffs have alleged

3 that the chilling effects of the Rule began before it was even finalized. For example,

4 plaintiffs allege that the District of Columbia’s Department of Health Care Finance

5 submitted a comment during the notice and comment period stating that the department

6 has already seen a 3.5 percent average decline in participation in local health care

7 programs that extend coverage to immigrants. Compl. ¶ 158. Moreover, because

8 appellate courts have stayed all preliminary injunctions enjoining the Rule, it is currently

9 in effect.4

10 Plaintiffs’ challenge is not speculative and further factual development of the

11 Rule’s impact is not needed for purposes of ripeness. Accordingly, the court DENIES

12 defendants’ motion with respect to ripeness.

13 3. Zone of Interests

14 In order to succeed on the merits, plaintiffs must be within the zone of interests of

15 the statute that forms the basis of their challenge. The zone of interests analysis asks

16 “whether Congress created a private cause of action in legislation,” Organized Vill. of

17 Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 964 (9th Cir. 2015) (en banc), such that “this

18 particular class of persons has a right to sue under this substantive statute,” Lexmark

19 Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127 (2014). It is “not a

20 question of Article III standing” and “this inquiry . . . ‘does not implicate subject-matter

21 jurisdiction . . . .’” Organized Vill. of Kake, 795 F.3d at 964 (quoting Lexmark, 572 U.S. at

22 128 & n.4). “[I]n the APA context, . . . the [zone of interests] test is not ‘especially

23 demanding.’” Lexmark, 572 U.S. at 130 (quoting Match-E-Be-Nash-She-Wish Band of

24

25

4 The court understands that the district court for the Southern District of New York

recently issued a preliminary injunction staying the Rule for the duration of any declared

26

public health emergency associated with the COVID-19 outbreak. See New York v. U.S.

Dep’t of Homeland Sec., — F. Supp. 3d —, No. 19 Civ. 7777 (GBD), 19 Civ. 7993 (GBD),

27

2020 WL 4347264, at *14 (S.D.N.Y. July 29, 2020). This stay does not affect the fact that

1 Pottawatomi Indians v. Patchak, 567 U.S. 209, 225–26 (2012)).

2 “Whether a plaintiff’s interest is ‘arguably . . . protected . . . by the statute’ within

3 the meaning of the zone-of-interests test is to be determined not by reference to the

4 overall purpose of the Act in question[,] . . . but by reference to the particular provision of

5 law upon which the plaintiff relies.” Bennett v. Spear, 520 U.S. 154, 175–76 (1997) (first

6 and second alterations in original) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v.

7 Camp, 397 U.S. 150, 153 (1970)). Put differently, “the plaintiff must establish that the

8 injury he complains of . . . falls within the ‘zone of interests’ sought to be protected by the

9 statutory provision whose violation forms the legal basis for his complaint.” Id. at 176

10 (alteration in original) (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990); and

11 citing Air Courier Conf. v. Postal Workers, 498 U.S. 517, 523–24 (1991); see also E. Bay

12 Sanctuary I, 932 F.3d at 768 n.9 (“‘[W]e are not limited to considering the [specific]

13 statute under which [plaintiffs] sued, but may consider any provision that helps us to

14 understand Congress’[s] overall purposes in the [INA].’” (alterations in original) (quoting

15 Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 401 (1987))). “[F]or APA challenges, a plaintiff

16 can satisfy the test in either one of two ways: (1) ‘if it is among those [who] Congress

17 expressly or directly indicated were the intended beneficiaries of a statute,’ or (2) ‘if it is a

18 suitable challenger to enforce the statute—that is, if its interests are sufficiently congruent

19 with those of the intended beneficiaries that the litigants are not more likely to frustrate

20 than to further . . . statutory objectives.’ California, 963 F.3d at 941–42 (second and third

21 alterations in original) (quoting Scheduled Airlines Traffic Offices, Inc. v. Dep’t of Def., 87

22 F.3d 1356, 1359 (D.C. Cir. 1996)).

23 In the preliminary injunction order, this court determined that section 1183a’s

24 affidavit of support provision is incorporated in and has an integral relationship with the

25 public charge analysis (see 8 U.S.C. §§ 1182(a)(4)(B)(ii), 1183a) and therefore should be

26 considered as part of the zone of interests analysis. Dkt. 120 at 69. Section 1183a

27 explains that someone can sponsor an alien by guaranteeing to financially support him,

1 provides that any such sponsorship can only be considered in the public charge analysis

2 if it is supported by an affidavit that is “legally enforceable against the sponsor by . . . any

3 State (or any political subdivision of such State), or by any other entity that provides any

4 means-tested public benefit.” 8 U.S.C. § 1183a(a)(1)(B).

5 The court reasoned that by recognizing that states would be paying means-tested

6 public benefits to those subject to a public charge analysis, requiring that states have

7 legally-enforceable rights to recover those expenses when an alien is admitted based on

8 consideration of an affidavit of support, and guaranteeing state-court jurisdiction for such

9 enforcement actions, Congress clearly intended to protect states and their political

10 subdivisions. Dkt. 120 at 70. The court also determined that because states have the

11 right to recover payment from an affiant under section 1183a, Congress intended to

12 protect states’ financial interests. Id.

13 Defendants argue that individual aliens deemed inadmissible, rather than the

14 states, are in the INA’s zone of interest. Mtn. at 8. Defendants would distinguish the

15 court’s preliminary injunction finding because enforcement of affidavits of support does

16 not constitute an injury that falls within the zone of interests. Id. Plaintiffs first contend

17 that section 1183a demonstrates Congress’s intent to protect states by permitting states

18 to enforce affidavits of support. Opp. at 7. Second, in enacting the INA, Congress gave

19 states the discretion to allocate public benefits. Plaintiffs contend that the Rule disrupts

20 the provision of benefits to noncitizens, resulting in more costly emergency care. Id. at

21 7–8. Third, plaintiffs argue that defendants conflate their merits argument with the zone

22 of interests analysis by contending that the public charge provision is meant to reduce

23 aliens reliance on both states and the federal government. Id. at 8.

24 Defendants’ zone of interests argument does not alter the court’s prior

25 conclusions. Significantly, plaintiffs rely on section 1183a as a basis for their first claim

26 such that it is a relevant statute for the zone of interests test. Compl. ¶ 312. By

27 permitting states to recover payments under section 1183a, plaintiffs are intended

1 harm to their coffers. See id. ¶ 233 (“The Public Charge Rule will cause direct economic

2 harm to Plaintiffs in the form of increased uncompensated costs for hospital care.”); ¶ 241

3 (“Immigrants who are chilled from accessing publicly funded health insurance programs

4 for which they are eligible will be more likely to defer primary or preventive healthcare.

5 Deferred care leads to more complex medical conditions later on that are more expensive

6 to treat.”). Harm to the financial well-being of the states falls within the zone of interests

7 protected by the statute. As stated in the prior order, the affidavit of support section

8 creates a legally enforceable contract against the sponsor and the states may bring an

9 action to compel reimbursement of government expenses. See 8 U.S.C. § 1183a(a)(1),

10 (b)(1)–(2).

11 In a footnote, defendants contend that plaintiffs’ Fifth Amendment claims fail the

12 zone of interests test because the Supreme Court has suggested that there is a

13 heightened zone of interests requirement for implied causes of action such as plaintiffs’

14 constitutional claim. Mtn. at 8 n.2. Yet, in the very case that defendants cite for this

15 proposition, Clarke v. Securities Industry Association, 479 U.S. at 400 n.16, the Court

16 cautioned that “[w]hile inquiries into reviewability or prudential standing in other [non-

17 APA] contexts may bear some resemblance to a ‘zone of interest’ inquiry under the APA,

18 it is not a test of universal application.” The Court went on to distinguish earlier dicta

19 suggesting a zone of interest inquiry was applicable to constitutional claims, stating “[w]e

20 doubt, however, that it is possible to formulate a single inquiry that governs all statutory

21 and constitutional claims.” Id. (citing Ass’n of Data Processing Serv. Orgs., Inc. v. Camp,

22 397 U.S. 150, 153 (1970)). As plaintiffs point out, the Ninth Circuit has also questioned

23 whether a zone of interests test can be applied in light of the Court’s decision in Lexmark,

24 which focused on Congress’s intent in creating statutory causes of action as opposed to

25 causes of action that arise under the Constitution. See Sierra Club v. Trump, 929 F.3d

26 670, 701–02 (9th Cir. 2019) (“[W]e doubt that any zone of interests test applies to

27 Plaintiffs’ equitable cause of action.”). Accordingly, the court declines to apply a zone of

1 In sum, the zone of interests test is not “especially demanding,” Lexmark, 572 U.S.

2 at 130, and, “at the very least, the [states’] interests are ‘marginally related to’ and

3 ‘arguably within’ the scope of the statute.” E. Bay Sanctuary Covenant v. Trump, 950

4 F.3d 1242, 1270 (9th Cir. 2020) (quoting Pottawatomi Indians, 520 U.S. at 175–76). The

5 court, therefore, DENIES defendants’ motion with respect to zone of interests.

6 4. First and Fourth Claims—Contrary to Law and Arbitrary and

7 Capricious

8 Turning to defendants’ motion with regard to individual claims, the court addresses

9 plaintiffs’ first and fourth claims together as they present a related issue. In its

10 preliminary injunction order, the court determined that plaintiffs were likely to succeed on

11 the merits of their claim that the Rule was not in accordance with the INA. Dkt. 120 at 48.

12 After a lengthy review of the prior legislative, regulatory, and judicial history of the term

13 “public charge,” the court determined that DHS’s interpretation of the term “public charge”

14 was not reasonable at Chevron step two. In its order staying the injunction, the Ninth

15 Circuit determined that, at Chevron step one, the term “public charge” is not a term of art

16 and not self-defining—thus, it was ambiguous. City & Cty. of San Francisco, 944 F.3d at

17 792. At step two, the court also reviewed the lengthy legislative history and case law

18 surrounding the term “public charge” and concluded that there has not been “one fixed

19 understanding of ‘public charge’ that has endured since 1882.” Id. at 796. Instead, “[i]f

20 anything has been consistent, it is the idea that a totality-of-the-circumstances test

21 governs public-charge determinations. But different factors have been weighted more or

22 less heavily at different times, reflecting changes in the way in which we provide

23 assistance to the needy.” Id. In resolving the step two analysis, the Ninth Circuit

24 determined that the Rule was a reasonable interpretation of the INA. Id. at 799.

25 Also in its prior order, this court determined that plaintiffs were likely to succeed on

26 the merits that the Rule is arbitrary and capricious because DHS failed to consider costs

27 and benefits, including costs to state governments and health effects on state

1 the cost-benefit issue and the public health effect issue. With regard to the former, the

2 court observed that DHS “addressed at length the costs and benefits associated with the

3 Final Rule.” City & Cty. of San Francisco, 944 F.3d at 801. With respect to public health

4 effects, the Ninth Circuit noted that “DHS not only addressed these concerns directly, it

5 changed its Final Rule in response to the comments.” Id. The court determined that

6 DHS could change its policy as long as DHS acknowledged the change and explained

7 the reasons for it. Id. at 805. In sum, the court held that DHS demonstrated that it was

8 likely to succeed on the merits of the arbitrary and capricious claim.

9 The Ninth Circuit motions panel decision to stay the preliminary injunction presents

10 novel procedural and substantive questions. The court requested supplemental briefing

11 on these issues, (Dkt. 176), to which both parties responded (Dkts. 177, 178). As a

12 procedural matter, defendants’ motion to dismiss comes after the motions panel’s opinion

13 staying the preliminary injunction but before the merits panel has issued its opinion on the

14 preliminary injunction. The merits panel may issue an opinion that comes out entirely the

15 same way as the motions panel, adopts an entirely contrary view, or lands somewhere in

16 between. The prospect of conflicting or confirming guidance indicates that deciding these

17 issues prior to the merits panel’s opinion may be premature.

18 With respect to the substantive issues, the Ninth Circuit motion panel opinion

19 implicates both the law of the circuit and the law of the case. Under the law of the circuit

20 doctrine, “[p]ublished decisions of [the Ninth Circuit] become law of the circuit, which is

21 binding authority that we and district courts must follow until overruled.” E. Bay

22 Sanctuary II, 950 F.3d at 1261. “Under the law of the case doctrine, a court will generally

23 refuse to reconsider an issue that has already been decided by the same court or a

24 higher court in the same case.” Gonzalez, 677 F.3d at 390 n.4. However, “[t]he Ninth

25 Circuit has instructed that a ‘district court should abide “by the general rule” that our

26 decisions at the preliminary injunction phase do not constitute the law of the case,’ but

27 that ‘[a]ny of our conclusions on pure issues of law, however, are binding.’” E. Bay

1 original) (quoting Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v.

2 U.S. Dep’t of Agric., 499 F.3d 1108, 1114 (9th Cir. 2007)).

3 A motions panel opinion reviewing a motion to stay an injunction is not necessarily

4 binding on a future merits panel reviewing the substance of that injunction. See E. Bay

5 Sanctuary II, 950 F.3d at 1264 (“The decision whether to grant a stay—much like the

6 decision whether to grant a preliminary injunction—is a ‘probabilistic’ endeavor. We

7 discuss the merits of a stay request in ‘likelihood terms,’ and exercise a ‘restrained

8 approach to assessing the merits.’ Such a predictive analysis should not, and does not,

9 forever bind the merits of the parties’ claims.” (quoting Sierra Club, 929 F.3d at 688));

10 see also Innovation Law Lab v. Wolf, 951 F.3d 1073, 1081 (9th Cir. 2020) (citing E. Bay

11 Sanctuary II for proposition that “a motions panel’s legal analysis, performed during the

12 course of deciding an emergency motion for a stay, is not binding on later merits

13 panels”). While East Bay Sanctuary II indicated that an appellate decision regarding a

14 stay “should not, and does not, forever bind the merits of the parties’ claims,” 950 F.3d at

15 1264, this court is bound to follow opinions constituting law of the circuit, see id. at 1263

16 n.3 (“[T]he first panel to consider an issue sets the law . . . for all the inferior courts in the

17 circuit” and “future panels of the court of appeals . . . .” (first and second alterations in

18 original) (internal quotation marks omitted) (quoting Hart v. Massanari, 266 F.3d 1155,

19 1171 (9th Cir. 2001))).

20 Applying the motions panel’s opinion would also require determining the extent to

21 which the opinion is binding (or persuasive) on each of plaintiffs’ claims that defendants

22 now seek to dismiss in full. As plaintiffs point out in the supplemental brief, the motions

23 panel did not address all legal issues raised by the States and did not assess the

24 complete administrative record in reaching its decision. Alternatively, as defendants

25 note, if the court dismisses the first or fourth claims, such a decision would moot the

26 preliminary injunction appeal on those causes of action.

27 Given the minefield of potential issues, a cautious approach is warranted. As part

1 plaintiffs’ first and fourth claims until the Ninth Circuit merits panel has issued its opinion.

2 Dkt. 176 at 2–3. Both parties responded that they were not opposed to such a course of

3 action. Dkt. 177 at 9; Dkt. 178 at 10. Accordingly, the court DEFERS RULING ON

4 defendants’ motion to dismiss plaintiffs’ first and fourth causes of action until the Ninth

5 Circuit issues an opinion on the preliminary injunction or otherwise disposes of the case.

6 5. Second Claim—APA Contrary to Law, Rehabilitation Act

7 Defendants move to dismiss plaintiffs’ second claim, which alleges a violation of

8 the APA as contrary to the Rehabilitation Act. Under the APA, “the reviewing court shall

9 decide all relevant questions of law, interpret constitutional and statutory provisions, and

10 determine the meaning or applicability of the terms of an agency action. The reviewing

11 court shall . . . hold unlawful and set aside agency action, findings, and conclusions found

12 to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

13 law.” 5 U.S.C. § 706.

14 “In the usual course, when an agency is authorized by Congress to issue

15 regulations and promulgates a regulation interpreting a statute it enforces, the

16 interpretation receives deference if the statute is ambiguous and if the agency’s

17 interpretation is reasonable. This principle is implemented by the two-step analysis set

18 forth in Chevron.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2124 (2016)

19 (citing Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)).

20 At the first step, a court must determine whether Congress has

“directly spoken to the precise question at issue.” If so, “that is

21 the end of the matter; for the court, as well as the agency, must

give effect to the unambiguously expressed intent of

22 Congress.” If not, then at the second step the court must defer

to the agency’s interpretation if it is “reasonable.”

23

24 Id. at 2124–25 (quoting Chevron, 467 U.S. at 842–44).

25 “[I]f the statute is silent or ambiguous with respect to the specific issue, the

26 question for the court is whether the agency’s answer is based on a permissible

27 construction of the statute.” Chevron, 467 U.S. at 843; see also Michigan v. E.P.A., 135

1 operate within the bounds of reasonable interpretation.” (internal quotation marks and

2 citation omitted)). The Chevron analysis calls upon the court to “employ[] traditional tools

3 of statutory construction” to fulfill its role as “the final authority on issues of statutory

4 construction.” Chevron, 467 U.S. at 843 n.9; accord Epic Sys. Corp. v. Lewis, 138 S. Ct.

5 1612, 1630 (2018).

6 The Rehabilitation Act prohibits “any program or activity receiving federal financial

7 assistance” or “any program or activity conducted by any Executive agency,” from

8 excluding, denying benefits to, or discriminating against persons with disabilities. 29

9 U.S.C. § 794(a). “To establish a violation of § 504 of the [Rehabilitation Act (“RA”)], a

10 plaintiff must show that (1) she is handicapped within the meaning of the RA; (2) she is

11 otherwise qualified for the benefit or services sought; (3) she was denied the benefit or

12 services solely by reason of her handicap; and (4) the program providing the benefit or

13 services receives federal financial assistance.” Lovell v. Chandler, 303 F.3d 1039, 1052

14 (9th Cir. 2002) (citing Weinreich v. L.A. Cty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th

15 Cir. 1997)).

16 In its prior order on plaintiffs’ motion for preliminary injunction, the court

17 determined that plaintiffs were unlikely to succeed on their Rehabilitation Act claim for

18 two reasons. First, the Rehabilitation Act requires that a plaintiff show that a disabled

19 person was denied services “solely by reason of her handicap.” The Rule does not deny

20 any alien admission into the United States, or adjustment of status, “solely by reason of”

21 disability. All covered aliens, disabled or not, are subject to the same inquiry: whether

22 they are likely to use one or more covered federal benefits for the specified period of

23 time. Even though a disability is likely to be an underlying cause of some individuals

24 qualifying for additional negative factors, it will not be the sole cause. As such, disability

25 is one non-dispositive factor. Dkt. 120 at 50.

26 Second, the INA explicitly lists “health” as a factor that an officer “shall . . .

27 consider” in making a public charge determination. 8 U.S.C. § 1182(a)(4)(B)(i). “Health”

1 expenses and ability to work. Congress, not the Rule, requires DHS to take this factor

2 into account. Courts have recognized that the RA cannot revoke or repeal a more

3 specific statute. See, e.g., Knutzen v. Eben Ezer Lutheran Hous. Ctr., 815 F.2d 1343,

4 1353 (10th Cir. 1987) (noting that section 504 may not “‘revoke or repeal . . . a much

5 more specific statute with an articulated program’ . . . absent express language by

6 Congress stating its intent to revoke or repeal that statute” (citations omitted)); Dkt. 120 at

7 50. The INA’s requirement to consider health was enacted subsequent to the RA and is

8 specific to the consideration of who constitutes a public charge. The Ninth Circuit

9 likewise found that Congress directed DHS to consider health—including an alien’s

10 disability—as a factor in public charge determinations. City & Cty. of San Francisco, 944

11 F.3d at 800. The court also reasoned that “[n]othing in the Final Rule suggests that

12 aliens will be denied admission or adjustment of status “solely by reason of her or his

13 disability.’” Id.

14 Defendants argue that plaintiffs’ second claim fails because the Rehabilitation Act

15 requires that a disabled person be denied services by reason of her disability and this

16 causal standard is strict. Mtn. at 15. According to defendants, plaintiffs cannot meet this

17 strict causal requirement because a medical condition may constitute one factor that is

18 considered as part of the totality of the circumstances test. Id. In response, plaintiffs first

19 point out that Congress did not exempt DHS from the Rehabilitation Act’s requirements.

20 Opp. at 13. According to plaintiffs, recipients of Medicaid for more than 12 months,

21 especially those with disabilities, are by definition a public charge. Id. at 14. Thus, the

22 Rule would deny such individuals meaningful access to immigration benefits because of

23 their disability-related needs. Id.

24 Plaintiffs’ arguments are unconvincing. Plaintiffs assert that the Rule is dispositive

25 with regard to a disabled alien’s public charge determination as long as the individual in

26 question is a Medicaid recipient for more than 12 months. Opp. at 14; Compl. ¶ 51. DHS

27 acknowledged the impact on those individuals with disabilities when it stated that it

benefits that are listed in the rule. However, Congress did not

1 specifically provide for a public charge exemption for

individuals with disabilities and in fact included health as a

2 mandatory factor in the public charge inadmissibility

consideration. Therefore, DHS will retain the designation of

3 Medicaid and SNAP as public benefits, notwithstanding the

potentially outsized impact of such designation on individuals

4 with disabilities.

5 84 Fed. Reg. at 41,368 (footnote omitted). While there may be a higher correlation

6 between Medicaid enrollment and having a disability, it does not follow that the disability

7 is the sole reason an individual is determined to be a public charge. When DHS

8 considers public benefits, such as Medicaid, the factor being considered is not the

9 disability but an individual’s “assets, resources, and financial status.” 8 U.S.C.

10 § 1182(a)(4)(B)(IV). Further, the Rule facially states that the applicable standard is a

11 totality of the circumstances test and a single positive or negative factor is never

12 determinative. 84 Fed. Reg. at 41,295.

13 Even if the court were to find that receipt of Medicaid was determinative for

14 individuals with disabilities, plaintiffs have not put forward a convincing argument that

15 DHS can disregard Congress’s mandate to consider an alien’s health as part of the public

16 charge determination. The court’s reasoning from the preliminary injunction order applies

17 here. Congress, not the Rule, requires DHS to take this factor into account. The Ninth

18 Circuit agreed with this rationale, observing that the 1996 amendment to the INA

19 requiring immigration officers to consider health occurred twenty-three years after

20 passage of the Rehabilitation Act. Thus, the court stated “[w]e cannot see how a general

21 provision in one statute constrains an agency given a specific charge in a subsequent

22 law.” City & Cty. of San Francisco, 944 F.3d at 800.

23 Thus, plaintiffs have not plausibly alleged sufficient facts to state a claim for an

24 APA cause of action as contrary to the Rehabilitation Act. The court GRANTS

25 defendants’ motion to dismiss plaintiffs’ second cause of action. Because no factual

26 allegations could alter the court’s determination, further amendment would be futile and

27 the dismissal is without leave to amend.

1 6. Third Claim—APA Contrary to Law, State Healthcare Discretion

2 Defendants move to dismiss plaintiffs’ third claim for violation of the APA as

3 contrary to state healthcare discretion. The court did not previously address this claim as

4 part of the preliminary injunction order. The Ninth Circuit likewise did not address this

5 issue.

6 In the complaint, plaintiffs advance two theories in support of their third claim.

7 First, they contend that the Rule will effectively deprive plaintiffs of their statutory option

8 under the Children’s Health Insurance Program Reauthorization Act of 2009, Pub. L. No.

9 111-3, § 214, 123 Stat. 8, 56 (“CHIPRA”) to provide certain benefits to lawfully residing

10 children and pregnant women. Compl. ¶¶ 323–24. Second, plaintiffs argue that the

11 Public Responsibility and Work Opportunity Act (“PRWORA”), 8 U.S.C. §§ 1612–13,

12 1621(d), 1622(a); 7 U.S.C. § 2016(i), expressly gave states the discretion to decide

13 whether to provide many public benefits to noncitizens and the Rule will effectively

14 deprive the states of this option. Compl. ¶¶ 325–26.

15 Defendants argue that the Rule does not deprive the states of their statutory

16 option to extend program eligibility for lawfully residing children and pregnant women

17 under Medicaid and the Children’s Health Insurance Program (“CHIP”) during their first

18 five years in the U.S. Mtn. at 16. Defendants point out that the Rule explicitly excludes

19 CHIP from the definition of public benefit and also excludes public benefits received by

20 children eligible for acquisition of citizenship and Medicaid benefits received by aliens

21 under 21 or pregnant women through 60 days after the last day of pregnancy. Id. Thus,

22 the Rule does not deprive plaintiffs of their authority to provide these benefits.

23 Defendants also contend that the Rule does not limit or change an alien’s entitlement to

24 public benefits; rather, it requires immigration officials to consider the receipt of benefits

25 as part of the totality of the circumstances test. Id.

26 In response, plaintiffs argue that the Rule’s known and predictable chilling effects

27 will effectively deprive plaintiffs of their statutory option to extend program eligibility to

1 automatically certify Medicaid enrollees for up to 12 months at a time, yet enrollment in

2 Medicaid for 12 months translates into a heavily weighted factor under the Rule. Id.

3 Individuals who are subject to both the public charge determination and the automatic

4 Medicaid certification face a particularly harsh choice—continue to enroll in Medicaid and

5 risk a negative public charge determination or disenroll from Medicaid. By causing

6 disenrollment and underutilization, plaintiffs contend the Rule interferes with their robust

7 safety net systems and benefits authorized by Congress. Id. at 16.

8 Plaintiffs’ arguments implicate Chevron step two, where “deference is not owed to

9 an agency decision if it construes a statute in a way that is contrary to congressional

10 intent or frustrates congressional policy.” CHW W. Bay v. Thompson, 246 F.3d 1218,

11 1223 (9th Cir. 2001) (citing Anaheim Mem’l Hosp. v. Shalala, 130 F.3d 845, 849 (9th Cir.

12 1997)). As an initial observation, the Rule does not facially detract from or limit the

13 authority with which Congress empowered the states under CHIPRA or PRWORA. As

14 defendants note in their brief, the Rule directly affects the rights and obligations of those

15 aliens that fall under the scope of the public charge provision. Plaintiffs acknowledge this

16 point as they argue that the Rule’s chilling effect will effectively deprive them of their

17 statutory options.

18 There are two reasons why plaintiffs fail to state a claim. First, the statutory

19 schemes referenced in the complaint are permissive, not mandatory. These are

20 programs that states may implement or extend to applicable individuals. See 8 U.S.C.

21 § 1612(b) (“[A] State is authorized to determine the eligibility of an alien . . . .”); § 1621(d)

22 (“A State may provide that an alien who is not lawfully present in the United States is

23 eligible for any State or local public benefit for which such alien would otherwise be

24 ineligible under subsection (a) only through the enactment of a State law after August 22,

25 1996, which affirmatively provides for such eligibility.” (emphasis added)); § 1622(a) (“[A]

26 State is authorized to determine the eligibility for any State public benefits . . . .”); 7

27 U.S.C. § 2016(i) (“[A] State agency may . . . issue benefits under this chapter . . . .”); 123

1 extent to which, it will exercise the authority granted to it by Congress.

2 Second, each individual is also free to choose whether he or she will accept public

3 benefits from the state. Plaintiffs have alleged that the Rule will have a chilling effect on

4 immigrants, including those who are not subject to the Rule. Compl. ¶¶ 145–46. For

5 purposes of a motion to dismiss, the court accepts as true the chilling effect of the Rule

6 on enrollment in public benefit programs. Yet, even so, plaintiffs have not demonstrated

7 that the Rule requires or prevents the states from undertaking a particular course of

8 action. Instead, the Rule impacts the choices of individuals who may or may not be

9 under the Rule’s purview. The opposition even refers to the “particularly hard choices”

10 faced by those subject to the Rule. Opp. at 15. Those individuals may be dissuaded or

11 chilled from participating in benefit programs, but the actions of such third parties do not

12 frustrate the availability of the benefits in the first instance. The states remain free to

13 offer benefits.

14 Thus, the Rule does not prevent the states from offering public benefit programs

15 authorized by Congress and is not contrary to law. Accordingly, defendants’ motion to

16 dismiss plaintiffs’ third cause of action is GRANTED. Because no factual allegations

17 could alter the court’s determination, further amendment would be futile and the dismissal

18 is without leave to amend.

19 7. Fifth and Sixth Claims—Equal Protection

20 Defendants move to dismiss plaintiffs’ fifth and sixth claims for violation of the

21 Equal Protection component of the Fifth Amendment. Neither this court nor the Ninth

22 Circuit addressed these claims when considering the preliminary injunction. The Equal

23 Protection Clause of the Fourteenth Amendment commands that no state shall “deny to

24 any person within its jurisdiction the equal protection of the laws,” U.S. Const. amend.

25 XIV, § 1, which amounts to a direction that all persons who are similarly situated should

26 be treated alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). The

27 equal protection component of the Fifth Amendment’s Due Process Clause imposes a

1 500 (1954); see also I.N.S. v. Pangilinan, 486 U.S. 875, 886 (1988) (considering “the

2 possibility of a violation of the equal protection component of the Fifth Amendment’s Due

3 Process Clause”).

4 Defendants argue that plaintiffs’ Equal Protection claims should be dismissed

5 because the Rule is facially neutral, and plaintiffs cannot establish discriminatory intent.

6 Mtn. at 19. Defendants contend that the Supreme Court’s decision in Trump v. Hawaii,

7 138 S. Ct. 2392, 2418 (2018), set a “deferential standard of review” that applies to

8 immigration policies. Mtn. at 20. According to defendants, the Rule is valid under either

9 Hawaii’s standard of review or rational basis review because the Rule is plausibly related

10 to DHS’s stated objectives. Id. Defendants also contend that the public statements by

11 government officials on which plaintiffs rely were not made by DHS officials and have no

12 express connection to the Rule. Id. at 21.

13 Plaintiffs respond that the applicable standard of review is provided by Village of

14 Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977),

15 under which they must produce direct or circumstantial evidence that a discriminatory

16 reason more likely than not motivated the defendants and that the defendants’ action

17 adversely affected the plaintiffs in some way. Opp. at 21. Plaintiffs argue that they have

18 alleged facts that are indicative of a discriminatory intent. These include: the Rule is

19 more likely to prevent immigrants of color from adjusting their status or changing their

20 visas compared to White immigrant counterparts, which DHS acknowledged, (id. at 22);

21 the Rule reflects a pattern of bias against non-White, non-European immigrants as

22 illustrated by pre- and post-election statements by the President and other statements by

23 decisionmakers (id. at 22–24); and plaintiffs allege that circumstantial evidence in the

24 form of the departure from the normal procedures and the manipulation by the White

25 House of DHS officials also support an inference of discriminatory intent (id. at 24).

26 Plaintiffs next argue that Trump v. Hawaii is not applicable where, as here, DHS’s

27 regulated activity applies to people already residing in the United States and national

1 The parties’ dispute falls into two general camps. First, they disagree as to the

2 applicable framework to review plaintiffs’ Equal Protection challenge. Plaintiffs assert

3 that the court should apply the disparate treatment framework described in Arlington

4 Heights so that plaintiffs can demonstrate discriminatory intent. Defendants contend that

5 the deferential standard of review in Trump v. Hawaii applies here such that plaintiffs fail

6 to state a claims regardless of the facts alleged in the complaint. Second, the parties

7 dispute whether the factual allegations are sufficient to plausibly state a claim for an

8 Equal Protection violation. The court analyzes each in turn.

9 i. Whether Trump v. Hawaii Applies to the Rule

10 Relevant to the public charge rule, there are two broad principles intricately

11 intertwined with the Supreme Court’s immigration law jurisprudence. First, the Court has

12 long recognized that Congress’s power concerning the initial entry of aliens into the

13 country is plenary. See Fiallo v. Bell, 430 U.S. 787, 792 (1977) (“This Court has

14 repeatedly emphasized that ‘over no conceivable subject is the legislative power of

15 Congress more complete than it is over’ the admission of aliens.” (quoting Oceanic

16 Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)). Second, once an alien arrives

17 in the United States and begins establishing ties to the country, the Court has recognized

18 certain constitutional protections extend to those persons, even if their presence is

19 “unlawful, involuntary, or transitory.” Mathews v. Diaz, 426 U.S. 67, 77 (1976) (“There

20 are literally millions of aliens within the jurisdiction of the United States. The Fifth

21 Amendment, as well as the Fourteenth Amendment, protects every one of these persons

22 from deprivation of life, liberty, or property without due process of law.” (citations

23 omitted)).

24 1. Plenary Power Jurisprudence

25 The Supreme Court’s recognition of Congress’s plenary power over immigration

26 first arose soon after the passage of the immigration legislation in the latter half of the

27 nineteenth century. In 1882, Congress enacted the Chinese Exclusion Act, Pub. L. No.

1 See Jennings v. Rodriguez, 138 S. Ct. 830, 866 (2018) (Breyer, J., dissenting). The

2 Court upheld the constitutionality of the Act in a series of cases, in particular Chae Chan

3 Ping v. United States, 130 U.S. 581 (1889), and Fong Yue Ting v. United States, 149

4 U.S. 698 (1893). Chae Chan Ping, 130 U.S. at 581–82, dealt with the exclusion of a

5 Chinese lawful permanent resident who left the United States and then was denied re-

6 entry and Fong Yue Ting, 149 U.S. at 729, involved the deportation of Chinese

7 immigrants because they could not demonstrate by the testimony of “at least one credible

8 white witness” (as required by the Chinese Exclusion Act) that they were lawful residents.

9 In Chae Chan Ping, Justice Field wrote that

10 [t]he power of exclusion of foreigners being an incident of

sovereignty belonging to the government of the United States

11 as a part of those sovereign powers delegated by the

constitution, the right to its exercise at any time when, in the

12 judgment of the government, the interests of the country require

it, cannot be granted away or restrained on behalf of any one.

13

14 130 U.S. at 609. In a passage that was later cited with approval by the Court in Fong

15 Yue Ting, Justice Field also expounded on Congress’s plenary power with regard to

16 different races of aliens:

17 The government, possessing the powers which are to be

exercised for protection and security, is clothed with authority

18 to determine the occasion on which the powers shall be called

forth; and its determination, so far as the subjects affected are

19 concerned, is necessarily conclusive upon all its departments

and officers. If, therefore, the government of the United states,

20 through its legislative department, considers the presence of

foreigners of a different race in this country, who will not

21 assimilate with us, to be dangerous to its peace and security,

their exclusion is not to be stayed because at the time there are

22 no actual hostilities with the nation of which the foreigners are

subjects.

23

24 Id. at 606; Fong Yue Ting, 149 U.S. at 706.

25 However, around the turn of the century, “the Court began to walk back the

26 plenary power doctrine in significant ways.” Castro v. U.S. Dep’t of Homeland Sec., 835

27 F.3d 422, 441 (3d Cir. 2016). In Kaoru Yamataya v. Fisher, 189 U.S. 86, 87 (1903), a

1 officer sought her deportation because he determined that she was likely to become a

2 public charge. The Court, while acknowledging its plenary power as described in Fong

3 Yue Ting, stated that immigration officers could not “disregard the fundamental principles

4 that inhere in ‘due process of law’ as understood at the time of the adoption of the

5 Constitution.” Id. at 100. In Yamataya, the fundamental principle at stake was the

6 procedural due process right to be heard prior to being taken into custody and deported.

7 Id. at 101. As the Third Circuit recently described, Yamataya represented a “turning

8 point” in the Supreme Court’s plenary power jurisprudence such that Congress’s power

9 was qualified by basic constitutional considerations. Castro, 835 F.3d at 442 (quoting

10 Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An

11 Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1390 n.85 (1953)).

12 Though it was a turning point for immigrants inside the United States, Yamataya

13 did not alter Congress’s plenary power at initial entry because in United States ex rel.

14 Knauff v. Shaughnessy, 338 U.S. 537 (1950), and Shaughnessy v. United States ex rel.

15 Mezei, 345 U.S. 206 (1953), the Court upheld actions by immigration officials to exclude

16 two aliens “on the threshold of initial entry,” Mezei, 345 U.S. at 212, without the

17 procedural due process rights afforded in Yamataya. “Knauff and Mezei essentially

18 restored the political branches’ plenary power over aliens at the border seeking initial

19 admission.” Castro, 835 F.3d at 443. Thus, if the immigration action pertains to initial

20 admission, then Congress’s power is plenary. In Landon v. Plasencia, the Court

21 summarized these two competing interests, stating that it “has long held that an alien

22 seeking initial admission to the United States requests privilege and has no constitutional

23 rights regarding his application, for the power to admit or exclude aliens is a sovereign

24 prerogative. 459 U.S. 21, 32 (1982) (citing Knauff, 338 U.S. at 542; and Nishimura Ekiu

25 v. United States, 142 U.S. 651, 659–60 (1892)). “As we explained in Johnson v.

26 Eisentrager, 339 U.S. 763, 770 (1950), however, once an alien gains admission to our

27 country and begins to develop the ties that go with permanent residence his constitutional

1 present resident alien is entitled to a fair hearing when threatened with deportation.” Id.

2 (citations omitted).

3 With this framing in mind, the leading case cited by defendants, Trump v. Hawaii,

4 is properly viewed as an initial admission case. There, the Supreme Court examined an

5 Equal Protection challenge to an executive order issued by the President that restricted

6 entry into the United States by foreign nationals of select countries, nearly all majority-

7 Muslim countries. Hawaii, 138 S. Ct. at 2403–04. From the outset, the Court’s analysis

8 focused on admission and exclusion cases, citing the plenary power doctrine with regard

9 to initial admission: “the admission and exclusion of foreign nationals is a ‘fundamental

10 sovereign attribute exercised by the Government’s political departments largely immune

11 from judicial control.’” Id. at 2418 (quoting Fiallo, 430 U.S. at 792). The Hawaii court

12 discussed at length the standard of review articulated in Kleindienst v. Mandel, 408 U.S.

13 753, 756–57 (1972), which involved an Equal Protection challenge to the Attorney

14 General’s denial of a temporary nonimmigrant visa for a Belgian author. Mandel, too,

15 was an initial admission case as the Court cited the rule that “Mandel personally, as an

16 unadmitted and nonresident alien, had no constitutional right of entry to this country as a

17 nonimmigrant or otherwise.” Id. at 762 (emphasis added) (citing, e.g., Knauff, 338 U.S. at

18 542). Recognizing Congress’s plenary power over initial admission decisions, Mandel

19 upheld Congress’s delegation to the Executive the decision to exclude as long as “the

20 Executive gave a ‘facially legitimate and bona fide’ reason for its action.” Hawaii, 138 S.

21 Ct. at 2419 (quoting Mandel, 408 U.S. at 769).

22 The Hawaii court also framed the initial entry cases in the context of national

23 security, stating “Mandel’s narrow standard of review ‘has particular force’ in admission

24 and immigration cases that overlap with ‘the area of national security.’” Id. (quoting Kerry

25 v. Din, 576 U.S. 86, 104 (2015) (Kennedy, J., concurring)). In Hawaii, the rationale for

26 such a standard of review rested on the intersection of immigration and national security:

27 “‘[a]ny rule of constitutional law that would inhibit the flexibility’ of the President ‘to

1 and our inquiry into matters of entry and national security is highly constrained.” Id. at

2 2419–20 (quoting Diaz, 426 U.S. at 81–82).

3 Yet, despite the foregoing buildup, the Court specifically declined to determine

4 whether Mandel applied in the particular case concerning the President’s proclamation

5 and instead pivoted to a rational basis standard of review. Id. at 2420 (“For our purposes

6 today, we assume that we may look behind the face of the Proclamation to the extent of

7 applying rational basis review.”). In its rational basis analysis, the Court examined the

8 facts underlying the proclamation, id. at 2421 (rejecting the argument that five of seven

9 countries are Muslim-majority “given that the policy covers just 8% of the world’s Muslim

10 population and is limited to countries that were previously designated by Congress or

11 prior administrations as posing national security risks”), and the process by which it was

12 produced, id. (“The Proclamation, moreover, reflects the results of a worldwide review

13 process undertaken by multiple Cabinet officials and their agencies.”).

14 After the Hawaii decision, lower courts have recognized that the deferential

15 standard articulated in Mandel, and cited in Hawaii and Fiallo v. Bell, applies to initial

16 admission and exclusion cases but not to aliens who are lawfully admitted into the United

17 States. For example, several opinions concerning the revocation of temporary protected

18 status (“TPS”) for certain groups, distinguished Hawaii on the grounds that the plaintiffs

19 were “foreign nationals . . . [who] are lawfully present in the United States . . . .” Saget v.

20 Trump, 375 F. Supp. 3d 280, 367 (E.D.N.Y. 2019) (citing Centro Presente v. U.S. Dep’t of

21 Homeland Sec., 332 F. Supp. 3d 393 410–11 (D. Mass. 2018); and New York v. U.S.

22 Dep’t of Commerce, 351 F. Supp. 3d 502, 666 (S.D.N.Y.), aff’d in part, rev’d in part 139

23 S. Ct. 2551 (2019)). Similarly, in an opinion overturning the Administration’s decision to

24 rescind the Deferred Action for Childhood Arrivals (“DACA”) program, the Ninth Circuit

25 also distinguished Hawaii, citing, in part, “the physical presence of the plaintiffs within the

26 geographic United States.” Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec.,

27 908 F.3d 476, 519–20 (9th Cir. 2018), rev’d in part, vacated in part, 140 S. Ct. 1891

1 As a counterexample, the district court in S.A. v. Trump, 363 F. Supp. 3d 1048, 1094

2 (N.D. Cal. 2018), applied Hawaii to an Equal Protection challenge brought by plaintiffs

3 residing in the United States against a policy prohibiting their family members from

4 entering the United States. These opinions represent instances where the scope of the

5 challenged action could be cleanly divided: in the cases of TPS or DACA, the individuals

6 were all within the United States; in S.A. the family members were attempting to enter the

7 United States.

8 Here, the Rule applies to immigrants and nonimmigrants seeking initial admission

9 to the United States. 84 Fed. Reg. at 41,295. It also applies to aliens who are already in

10 the United States and are seeking adjustment of status. Id. Because the Rules applies

11 in part to aliens who are already in the United States, defendants cannot entirely rely on

12 the plenary power doctrine to uphold the Rule. Accordingly, the court proceeds to

13 determine whether an alien inside the United States can state an Equal Protection claim.

14 2. Constitutional Rights of Aliens Admitted to the United

15 States

16 As Yamataya and similar cases demonstrate, persons within the United States can

17 assert at least some rights guaranteed by the Fifth and Fourteenth Amendments. Early

18 cases only addressed whether persons had a procedural due process right to be heard

19 before the government imposed some legal action on them. See, e.g., Wong Wing v.

20 United States, 163 U.S. 228, 237 (1896) (“[T]o declare unlawful residence within the

21 country to be an infamous crime, punishable by deprivation of liberty and property, would

22 be to pass out of the sphere of constitutional legislation, unless provision were made that

23 the fact of guilt should first be established by a judicial trial.”). No procedural due process

24 challenge is alleged here; rather, plaintiffs challenge the Rule on Equal Protection

25 grounds. The issue may be stated as whether Congress or the Executive may

26 discriminate within different classes of aliens present in the United States based on the

27 race or ethnicity of the aliens.

1 Fifth Amendment’s Due Process Clause extends to aliens who are physically present in

2 the United States. 426 U.S. at 77 (“The Fifth Amendment, as well as the Fourteenth

3 Amendment, protects every one of these persons from deprivation of life, liberty, or

4 property without due process of law.”). In Plyler v. Doe, 457 U.S. 202, 210 (1982)

5 (citations omitted), the Court stated “[a]liens, even aliens whose presence in this country

6 is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by

7 the Fifth and Fourteenth Amendments.” Then, the Court stated: “Indeed, we have clearly

8 held that the Fifth Amendment protects aliens whose presence in this country is unlawful

9 from invidious discrimination by the Federal Government.” Id. (citing Mathews, 426 U.S.

10 at 77). Plyler’s holding only applied to a state’s classification of aliens rather than the

11 federal government. Yet, in a footnote, the Court stated “[i]t would be incongruous to

12 hold that the United States, to which the Constitution assigns a broad authority over both

13 naturalization and foreign affairs, is barred from invidious discrimination with respect to

14 unlawful aliens, while exempting the States from a similar limitation. Id. at 201 n.9 (citing

15 Mathews, 426 U.S. at 84–86). While dicta, these two cases suggest that the Supreme

16 Court would hold that aliens within the United States are protected by the equal

17 protection component of the Fifth Amendment.

18 In a case closer to the question at issue here, in Kwai Fun Wong v. United States,

19 373 F.3d 952, 970–73 (9th Cir. 2004), the Ninth Circuit reviewed at length whether an

20 alien who has not “entered” the United States for purposes of the INA but has physically

21 entered the United States could state a discrimination claim under the equal protection

22 component of the Due Process Clause of the Fifth Amendment. The court held that non-

23 admitted (but physically present) aliens were not precluded

24 from coming within the ambit of the equal protection component

of the Due Process Clause. We cannot countenance that the

25 Constitution would permit immigration officials to engage in

such behavior as rounding up all immigration parolees of a

26 particular race solely because of a consideration such as skin

color. Although “Congress has ‘plenary power’ to create

27 immigration law, and . . . the judicial branch must defer to

limitations.”

1

2 Id. at 974 (alterations in original) (footnote omitted) (quoting Zadvydas v. Davis, 533 U.S.

3 678, 695 (2001)). Kwai Fun Wong distinguished initial entry cases on the grounds that

4 those cases were determinative of “the procedural rights of aliens with respect to their

5 applications for admission,” but initial entry cases have not been applied to “deny all

6 constitutional rights to non-admitted aliens.” Id. at 971. If Kwai Fun Wong establishes

7 that non-admitted, but physically present aliens can bring an Equal Protection challenge,

8 then it follows that admitted aliens subject to the Rule (who are further from Congress’s

9 plenary power) may also bring an Equal Protection challenge.

10 Read together, Mathews, Plyler, and Kwai Fun Wong stand for the proposition that

11 aliens who have been admitted to the United States are not precluded from bringing an

12 Equal Protection challenge on the theory that they were discriminated against on the

13 basis of their race or ethnicity.

14 3. Resolving the Applicable Standard of Review

15 Plaintiffs urge the court to apply the Arlington Heights inquiry to the Rule so that

16 they can assert an Equal Protection challenge on behalf of aliens who have been

17 admitted to the United States. An important point is worth noting at this juncture:

18 Arlington Heights did not address what level of scrutiny—i.e., strict scrutiny, heightened

19 scrutiny, or rational basis—a court should apply to an Equal Protection claim based on

20 racial or ethnic discrimination. Instead, Arlington Heights described a framework to

21 “[d]etermin[e] whether invidious discriminatory purpose was a motivating factor” by using

22 “a sensitive inquiry into such circumstantial and direct evidence of intent as may be

23 available.” 429 U.S. at 266. “Proof of racially discriminatory intent or purpose is required

24 to show a violation of the Equal Protection Clause.” Id. at 265. Conversely, if the

25 government action in question only has a “racially disproportionate impact,” then it may

26 not be unconstitutional. Washington v. Davis, 426 U.S. 229, 239 (1976). Accordingly, if

27 plaintiffs are able to demonstrate racial or ethnic discriminatory purpose to be a

1 review.

2 In Department of Homeland Security v. Regents of the University of California,

3 writing for a plurality with regard to the plaintiffs’ Equal Protection claim, Chief Justice

4 Roberts stated that “[t]o plead animus, a plaintiff must raise a plausible inference that an

5 ‘invidious discriminatory purpose was a motivating factor’ in the relevant decision.

6 Possible evidence includes disparate impact on a particular group, ‘[d]epartures from the

7 normal procedural sequence,’ and ‘contemporary statements by members of the

8 decisionmaking body.’” 140 S. Ct. at 1915 (second alteration in original) (quoting

9 Arlington Heights, 429 U.S. at 266–68). This indicates that application of the Arlington

10 Heights framework is appropriate to evaluate whether plaintiffs plead discriminatory

11 animus. Further, the plurality sidestepped the issue of whether the Court’s opinion in

12 Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 488 (1999),

13 foreclosed a constitutional claim by an alien unlawfully present in the United States. See

14 Regents, 140 S. Ct. at 1915. Because the court has likewise determined that Trump v.

15 Hawaii (and the plenary power doctrine more generally) does not apply to the Rule in its

16 entirety, similar to Regents, it is appropriate to apply Arlington Heights in this instance.

17 Several recent district court opinions have also applied the Arlington Heights

18 framework to evaluate whether the federal government acted with discriminatory purpose

19 despite a facially neutral action. In Cook County, Illinois v. Wolf, No. 19 C 6334, 2020

20 WL 2542155, at *7 (N.D. Ill. May 19, 2020), the district court in the Northern District of

21 Illinois declined to apply Hawaii and instead applied what the court described as

22 “Arlington Heights-style strict scrutiny,” in evaluating a motion to dismiss the plaintiffs’

23 Equal Protection challenge to the Rule. The court reasoned that in “contrast to the

24 President’s national security and international relations justifications for the executive

25 order in Hawaii, DHS justified and continues to justify the Final Rule solely on economic

26 grounds.” Id.; see also CASA de Maryland, Inc. v. Trump, 355 F. Supp. 3d 307, 312, 324

27 (D. Md. 2018) (declining to apply Hawaii and Mandel to an Equal Protection challenge

1 ii. Whether Plaintiffs’ Allegations Plausibly State a Claim

2 “Under Arlington Heights, a plaintiff must ‘simply produce direct or circumstantial

3 evidence demonstrating that a discriminatory reason more likely that [sic] not motivated

4 the defendant and that the defendant’s actions adversely affected the plaintiff in some

5 way.’” Ave. 6E Invs., LLC v. City of Yuma, Ariz., 818 F.3d 493, 504 (9th Cir. 2016)

6 (internal quotation marks omitted) (quoting Pac. Shores Props., LLC v. City of Newport

7 Beach, 730 F.3d 1142, 1158 (9th Cir. 2013)); see also Regents, 140 S. Ct. at 1915. “A

8 plaintiff does not have to prove that the discriminatory purpose was the sole purpose of

9 the challenged action, but only that it was a ‘motivating factor.’” Ave. 6E Invs., (quoting

10 Arce v. Douglas, 793 F.3d 968, 977 (9th Cir. 2015)). While Arlington Heights describes

11 an evidentiary framework rather than a pleading standard, the Ninth Circuit has used its

12 factors in evaluating a district court’s dismissal of a complaint pursuant to Rule 12(b)(6).5

13 See id.

14 In Arlington Heights, the Court described a series of non-exhaustive factors that

15 guides the inquiry into whether a defendant’s actions were motivated by a discriminatory

16 purpose “by examining (1) statistics demonstrating a ‘clear pattern unexplainable on

17 grounds other than’ discriminatory ones, (2) ‘[t]he historical background of the decision,’

18 (3) ‘[t]he specific sequence of events leading up to the challenged decision,’ (4) the

19 defendant’s departures from its normal procedures or substantive conclusions, and (5)

20 relevant ‘legislative or administrative history.’” Pac. Shores Props., 730 F.3d at 1158–59

21 (alterations in original) (quoting Arlington Heights, 429 U.S. at 266–68; and citing Comm.

22

23

5 While not directly applicable to Equal Protection claims, the Supreme Court and the

Ninth Circuit have held that, for employment discrimination cases, the McDonnell

24

Douglas evidentiary framework is a useful touchstone to evaluate whether a claim

survives a motion to dismiss; however, a plaintiff “is not required to plead a prima facie

25

case of discrimination in order to survive a motion to dismiss.” Sheppard v. David Evans

& Assoc., 694 F.3d 1045, 1050 (9th Cir. 2012) (citing Swierkiewicz v. Sorema N.A., 534

26

U.S. 506, 508–11 (2002)). Similar to McDonnell Douglas, the Arlington Heights

framework is an evidentiary burden-shifting regime. A Rule 12(b)(6) motion only requires

27

plaintiffs to meet the requirements of Rule 8 and Twombly/Iqbal. See Kwai Fun Wong,

1 Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 703 (9th Cir. 2009));

2 see also Avenue 6E Invs., 818 F.3d at 504 (applying Arlington Heights factors to an

3 Equal Protection claim dismissed pursuant to Rule 12(b)(6)).

4 1. Disparate Impact

5 Here, plaintiffs allege that the Rule is “more likely to prevent immigrants of color in

6 the United States from adjusting their status, or extending or changing their visas,

7 compared to their White immigrant counterparts.” Compl. ¶ 107. The complaint also

8 cites the Rule, where DHS stated that it “recognizes that it is possible that the inclusion of

9 benefits such as SNAP and Medicaid may impact in greater numbers communities of

10 color, including Latinos and [Asian-American, Pacific Islanders], as well as those with

11 particular medical conditions that require public benefits for treatment, and therefore may

12 impact the overall composition of immigration with respect to these groups.” 84 Fed.

13 Reg. at 41,369. Plaintiffs have plausibly alleged that the Rule will impact certain racial

14 groups more heavily than others.

15 However, the court notes that the plurality opinion in Regents found that the

16 disparate impact of the DACA rescission on Latinos was not sufficient to state a claim.

17 Writing for himself and three other justices, Chief Justice Roberts stated “because

18 Latinos make up a large share of the unauthorized alien population, one would expect

19 them to make up an outsized share of recipients of any cross-cutting immigration relief

20 program. . . . Were this fact sufficient to state a claim, virtually any generally applicable

21 immigration policy could be challenged on equal protection grounds.” Regents, 140 S.

22 Ct. at 1915. This reasoning is persuasive and the Rule’s disparate impact, while notable,

23 is not dispositive.

24 2. Statements by Decisionmakers

25 Next, plaintiffs cite evidence of potential bias exemplified by statements of the

26 President and his advisors. For example, as a candidate, President Trump called

27 Mexican immigrants “rapists” and “people who have a lot of problems.” Compl. ¶ 285.

1 people from El Salvador, Haiti, and African countries, asking, “Why are we having all

2 these people from shithole countries come here?” Id. ¶ 292. Plaintiffs allege that the

3 President was widely reported to have expressed his preference for more immigrants

4 from places like Norway, where the population is over 90 percent white. Id. In May 2018,

5 the President called immigrants “animals” during a public White House meeting. Id.

6 ¶ 294. In addition to the President, plaintiffs allege that other senior administration

7 officials made statements indicative of racial bias. But they only offer one example;

8 defendant Kenneth Cuccinelli is alleged to have stated that Washington, D.C.’s animal

9 control policies were worse than U.S. immigration policies because, “You can’t break up

10 rat families.” Id. ¶ 299.

11 Defendants contend that these statements were not made by DHS officials and

12 have no express connection to the Rule. Mtn. at 21. It is notable that one of the alleged

13 statements is attributed to Kenneth Cuccinelli who is a named defendant in this case and

14 is alleged to be responsible for implementing and enforcing immigration laws. Compl.

15 ¶¶ 28, 299. However, that is the only statement offered by plaintiffs made by a

16 decisionmaker who was directly involved in the Rule’s promulgation and it is not clearly

17 tied to the Rule.

18 With regard to the President’s statements, in Regents, 140 S. Ct. at 1916, Chief

19 Justice Roberts’ plurality opinion found the President’s statements as “unilluminating” and

20 instead noted that “relevant actors were most directly [the] Acting Secretary [of Homeland

21 Security] and the Attorney General.” The opinion stated that “respondents did not

22 ‘identif[y] statements by [either] that would give rise to an inference of discriminatory

23 motive.’” Id. (alterations in original) (citation omitted). Next, Chief Justice Roberts found

24 the President’s statements were “remote in time and made in unrelated contexts” and did

25 not “qualify as ‘contemporary statements’ probative of the decision at issue.” Id. (quoting

26 Arlington Heights, 429 U.S. at 268). While a plurality opinion, this reasoning suggests

27 that the President’s statements, which have no direct connection to the Rule are not

1 Applying here, plaintiffs allege both pre- and post-inauguration statements by the

2 President. The pre-inauguration statements, Compl. ¶¶ 285–87, are similar to those in

3 Regents that are more remote in time and not applicable to the agency action at issue.

4 The post-inaugurations statements pertain to the same time period as the beginning of

5 the rulemaking process but are not connected to the Rule. The closest statement

6 concerning an immigration plan was in reference to a draft plan that would have

7 protected individuals with TPS status. Id. ¶ 292. In sum, plaintiffs have identified a few

8 statements made in unrelated contexts by the President and only one comment from a

9 DHS official that did not appear to have any connection to the Rule or the rulemaking

10 process. They have not alleged sufficient factual matter concerning statements by

11 decisionmakers.

12 3. Departure from Normal Procedures

13 Plaintiffs also contend that the Rule departed from normal procedures as

14 evidenced by the efforts of White House advisor Stephen Miller’s comments to fast-track

15 the Rule to completion. Compl. ¶¶ 300–02. Defendants assert that the text of the Rule

16 provides the most reliable indicia of its intent and contends that the Rule is devoid of any

17 discriminatory justifications. Mtn. at 20. They also argue that the proposed rule,

18 extensive notice and comment process, and changes from the proposed to final rules

19 undermine allegations of improper bias. Id. at 20–21.

20 The text of the Rule, while a relevant factor, is not dispositive because the

21 Arlington Heights analysis presumes that the official government action in question is

22 facially neutral. 429 U.S. at 266 (“Sometimes a clear pattern, unexplainable on grounds

23 other than race, emerges from the effect of the state action even when the governing

24 legislation appears neutral on its face.” (citations omitted)).

25 However, plaintiffs’ allegations barely raise an inference of an improper departure

26 from the norm. Cf. Regents, 908 F.3d at 519 (“DACA received reaffirmation by the

27 agency as recently as three months before the rescission, only to be hurriedly cast aside

1 about-face, done at lightning speed, suggests that the normal care and consideration

2 within the agency was bypassed.”). Plaintiffs’ allegations that the Rule was fast tracked

3 do not raise an inference of discriminatory intent. This rulemaking process was not a 3-

4 month about-face; the NPRM began a year before the final Rule was published. At most,

5 they plausibly allege that defendants wanted to implement the Rule sooner rather than

6 later.

7 In light of the foregoing, plaintiffs have not alleged sufficient factual matter to state

8 a claim for an Equal Protection violation. The court GRANTS defendants’ motion to

9 dismiss plaintiffs’ fifth cause of action. Because plaintiffs could allege additional factual

10 matter, the dismissal is with leave to amend.6

11 iii. Sixth Claim—Unconstitutional Animus

12 In a footnote, defendants argue that plaintiffs’ sixth claim should be dismissed

13 because it fails to identify any protected class, rather, plaintiffs allege that the Rule was

14 adopted to harm a politically unpopular group. Mtn. at 21 n.9. In response, plaintiffs

15 attempt to clarify the claim, stating that the sixth claim incorporates by reference plaintiffs’

16 previous allegations including the allegation that the Rule is intended to target immigrants

17 of color. Opp. at 22 n.10.

18 In their complaint, plaintiffs’ sixth claim incorporates by reference the allegations

19 set forth in the preceding paragraphs of the complaint. Compl. ¶ 344. The sixth claim

20 goes on to allege that “[t]he classification here further violates equal protection principles

21 because defendants adopted it to harm a politically unpopular group and advance

22 unconstitutional animus, and therefore, it is without a permissible, rational basis.” Id.

23 ¶ 345.

24 It appears that plaintiffs are seeking to challenge the Rule under a heightened

25

26

6 Other district courts have found that plaintiffs in those cases have alleged sufficient

factual allegations to state a claim for violation of the Equal Protection component of the

27

Fifth Amendment. See New York, 2020 WL 4347264, at *6; Cook Cty., Ill., 2020 WL

1 rational basis review. In Animal Legal Defense Fund v. Wasden, the Ninth Circuit stated

2 “[w]hen a law exhibits a desire to harm an unpopular group, courts will often apply a

3 ‘more searching’ application of rational basis review.” 878 F.3d 1184, 1200 (9th Cir.

4 2018) (quoting Lawrence v. Texas, 539 U.S. 558, 580 (2003) (O’Connor, J., concurring).

5 However, the court indicated that this more searching review applies “[w]hen the

6 politically unpopular group is not a traditionally suspect class.” Id. (emphasis added)

7 There are two separate problems with the sixth claim. First, the unpopular group

8 referenced in paragraph 345 is non-White, non-European immigrants. Opp. at 22 n.10.

9 Yet, plaintiffs’ framing of this group is based on the group’s racial and ethnic composition,

10 a traditionally suspect class. See Compl. ¶ 305 (“The Administration has identified a

11 politically unpopular minority, namely non-White, non-European immigrants . . . .”). Thus,

12 the more searching rational basis of review is not available to them.

13 Second, the factual allegations for the fifth and sixth claims are the same.

14 Assuming plaintiffs are able to state a claim for violation of the Equal Protection

15 component of the Fifth Amendment in a future amended complaint, the court would then

16 determine whether the group is is a traditionally suspect class and what level of scrutiny

17 applies to that group. See Cleburne, 473 U.S. at 439–42 (describing standards of review

18 applicable to an Equal Protection clause challenge). For that reason, plaintiffs’ sixth

19 claim is entirely duplicative of their fifth claim because it involves the same facts and

20 requested relief.

21 Accordingly, the court GRANTS defendants’ motion to dismiss plaintiffs’ sixth

22 cause of action. Because the claim is duplicative of plaintiffs’ fifth claim, the dismissal is

23 without leave to amend.

24 CONCLUSION

25 For the foregoing reasons, the court DENIES defendants’ motion to dismiss with

26 respect to their standing, ripeness, and zone of interest challenges. Defendants’ motion

27 to dismiss plaintiffs’ second cause of action for violation of the APA, contrary to the

1 AMEND; defendants’ motion to dismiss plaintiffs’ third cause of action for violation of the

2 APA, contrary to State Healthcare Discretion, is GRANTED, and the claim is DISMISSED

3 WITHOUT LEAVE TO AMEND; defendants’ motion to dismiss plaintiffs’ fifth cause of

4 action for violation of the Fifth Amendment is GRANTED, and the claim is DISMISSED

5 WITH LEAVE TO AMEND; and defendants’ motion to dismiss plaintiffs’ sixth cause of

6 action for violation of the Fifth Amendment is GRANTED, and the claim is DISMISSED

7 WITHOUT LEAVE TO AMEND. Further, the court DEFERS RULING ON defendants’

8 motion to dismiss plaintiffs’ first and fourth causes of action.7 Plaintiffs will be permitted

9 to file an amended complaint after resolution of the deferred claims.

10 IT IS SO ORDERED.

11 Dated: August 3, 2020

12 /s/ Phyllis J. Hamilton

PHYLLIS J. HAMILTON

13 United States District Judge

14

15

16

17

18

19

20

21

22

23

24

25

26

7 On April 1, 2020, the court granted in part and denied in part plaintiffs’ motion to compel

27

discovery. Dkt. 159. The court also stayed discovery “until resolution of defendants’