Youth 71Five Ministries v. Williams

IN THE UNITED STATES DISTRICT COURT

. FOR THE DISTRICT OF OREGON

MEDFORD DIVISION ee

YOUTH 71FIVE MINISTRIES, Case No. 1:24-cv-00399-CL

Plaintiff,

OPINION AND ORDER

CHARLENE WILLIAMS, Director of the :

Oregon Department of Education, in her individual .

and official capacities, et al,

Defendants.

Plaintiff Youth 71Five Ministries brings this cause of action, alleging claims of religious

discrimination against officials of the Oregon Department of Education and the Youth

Development Division of Oregon. Plaintiff moves the Court for a preliminary injunction, and

the Defendants move to dismiss the case based on qualified immunity. Full consent to

magistrate jurisdiction was entered on March 22, 2024 (#20). For the reasons below, the motion

for a preliminary injunction (#20) is DENIED, and the motion to dismiss for qualified immunity .

#34) is GRANTED. oe

Dace 1. OPINION AND ORDER , .

_ BACKGROUND

The Oregon Department of Education (ODE) through the Youth Development Division

(YDD) provides funding for community-based youth development programs and services

through the Youth Community Investment Grants. Complt. at J 22 (#1). To be eligible for a

grant, an applicant must meet several requirements and must submit a new application for each

cycle of grants, which take place every two years or so. See id. at { 71, 75; Detman Decl. at { 13.

A variety of different types of organizations are eligible, including “faith-based organizations.”

. Complt. Ex. 9 at p. 5. For the first time, in the March 1, 2023 grant cycle, required applicants to

certify that they do not discriminate in certain employment or service delivery practices. Complt.

at J 89; Complt. at J 23. The 2023 Request for Grant Applications (“RFA”) form, “Certification”

states in relevant part:

By checking boxes below applicant understands and agrees to

following Statements:

. Applicant does not discriminate in its employment practices, vendor

- selection, subcontracting, or service delivery with regard to race, —

ethnicity, religion, age, political affiliation, gender, disability,

sexual orientation, national origin, or citizenship status.

Complt. Ex. 9 at 23. . .

Plaintiff admits that it discriminates in its hiring practices by requiring that all employees

and volunteers “subscribe and adhere without mental reservation” to a statement of Christian

faith. Complt. at { 45. Despite this practice, Plaintiff certified on the 2023 RFA form that it met

nondiscrimination eligibility condition for the RFA. Id. at 4 93. Based in part on this

misrepresentation, YDD conditionally awarded grant funding to Plaintiff for multiple proposed

programs. Detman Decl. at q 17.

Dace 2. OPINION ANT OR NER ,

Months later, while finalizing the agreements for the grant funding, YDD discovered that.

Plaintiffs employment practices did not meet the RFA’s new nondiscrimination tequirement. □□□ □

at $18; Hofmann Decl. at § 10. YDD terminated further progress on the grant agreements and

withdrew its offer to provide funding to Plaintiffs programs. /d. at | 12; Detman Decl. at q 19.

DISCUSSION

Plaintiff seeks preliminary injunctive relief exempting it from the nondisctimination

_ eligibility requirement and requiring YDD to reinstate and fund the withdrawn arants.

‘Defendants seek to dismiss Plaintiff's case on the basis of qualified immunity. For the reasons

below, Plaintiff s motion is denied, and Defendants’ motion is granted. □

lL Plaintiff's motion for a preliminary injunction is denied.

“A plaintist seeking a preliminary injunction must establish that he is likely to succeed on

the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. □

Nat. Res. Def. Council Inc., 555 US. 7, 20, 129 S.Ct. 365, 172 LEd2d 249 (2008). All four

elements must be satisfied. See, e.g., Am. Trucking Ass'n v. City of Los Angeles, 559 F.3d 1046,

1057 (9th Cir. 2009). Here, Plaintiff cannot satisfy any of the four elements to be entitled toa

preliminary injunction. oe

A. Plaintiff has not established that it is likely to succeed on the merits.

Plaintiff’s lawsuit claims that the YDD’s nondiscrimination requirement violates the Free

Exercise and Free Speech clauses of the First Amendment, as well as the ministerial exception

pom pee ee

- and church autonomy doctrine under the religion clauses of the First Amendment. Complt. at □□ □

145-183 (#1). Plaintiff is not likely to succeed on these claims.

‘1. Plaintiff cannot show a likelihood of success on the merits of its Free

Exercise claims.

The Free Exercise and Establishment Clauses of the First Amendment provide that □

“Congress shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof].]” U.S. Const. amend. I. The Free Exercise Clause prohibits government action

that is “hostile to the religious beliefs of affected citizens . . . and that passes judgment upon or

presupposes the illegitimacy of religious beliefs or practices.” Masterpiece Cakeshop, Ltd. v.

Colorado Civil Rights Comm’n, 138 S. Ct. 1719, 1731 (2018). Indeed, “[t]he free exercise of

religion means, first and foremost, the right to believe and profess whatever religious doctrine

one desires.” Employment Div. v. Smith, 494 U.S. 872, 877 (1990) (“Smith”). 1 “A State violates

the Free Exercise Clause when it excludes religious observers from otherwise available public

benefits” because of their “religious character” or “religious exercise.” Carson v. Makin, 596 □□ .

U.S. 767, 778-81 (2022).

However, while the constitution protects sincerely held religious beliefs, it does not

guarantee an unlimited right to religious practice. See Malik v. Brown, 16 F.3d 330, 333 (9th Cir.

1994) (weighing sincerely held religious beliefs against penological interests). “[T]he right of .

' In the aftermath of the Smith decision, Congress enacted the Religious Land Use and Institutionalized

Persons Act of 2000 (RLUIPA) and its sister statute the Religious Freedom Restoration Act of 1993

(RFRA). Ramirez v. Collier, 595 U.S. 411, 424, 142 S. Ct. 1264, 1277, 212 L. Ed. 2d 262 (2022). Both

statutes aim to ensure “greater protection for religious exercise than is available under the First

Amendment.” Holt v. Hobbs, 574 U.S. 352, 357, 135 S. Ct. 853, 860, 190 L. Ed. 2d 747 (2015). Neither

statute is applicable to the issues in this case.

A _ OPINION AND ORDER

free exercise does not relieve an individual of the obligation to comply with avalid and neutral .

law of general applicability[.]” Smith, 494 U.S. at 879 (quotation marks omitted). oe

The Court finds that Plaintiff is unlikely to succeed on the merits of its Free Exercise

claims because the nondiscrimination requirement is neutral and generally applicable and

because YDD did not excluded Plaintiff from grant funding “solely because of religious

character or exercise.”

a. Defendants’ nondiscrimination requirement is a valid and neutral law of

general applicability. _

As stated above, Smith held that laws incidentally burdening religion are ordinarily not

subject to strict scrutiny under the Free Exercise Clause, so long as they are neutral and generally

applicable. 494 U.S. at 879. Plaintiff concedes that the nondiscrimination requirement is facially

neutral, but it argues that it is not generally applicable.

“Broadly speaking, there are two ways a law is not generally applicable.” Tingleyv.

Ferguson, 47 F 4th 1055, 1087-88 (9th Cir. 2022) (citing Fulton, 593 U.S. at 533). “The first is

if there is a ‘formal mechanism for granting exceptions’ that ‘invite[s] the government to

consider the particular reasons for a person's conduct,”” Id. (citing Fulton, 593 U.S. at 537). “The

second is if the law ‘prohibits religious conduct while permitting secular conduct’ that also

works against the government's interest in enacting the law.” Jd. at 1088 (citing ulton, 593 U.S.

at 534). If neither applies, the law is generally applicable. See id. 8 882.

First, here, there is no formal or informal mechanism for granting exceptions tothe

nondiscrimination requirement at all, let alone one that invites the government to consider

particular reasons for a person’s conduct. Each applicant “must complete and submit

\ Applicant Information and Certification information,” including the certification that the

“Applicant does not discriminate in its employment practices, vendor selection, subcontracting,

Dace 5 __ OPINION AND ORDER

or service delivery with regard to race, ethnicity, religion, age, political affiliation, gender, □

disability, sexual orientation, national origin or citizenship status.” Complt. Ex. 9 at 13 (RFA,

“Application Requirements,” including the “Applicant Information and Certification Sheet”);

Complt. Ex. 7 at 23 (Plaintiff's application, “Certification” section). If the application does not

comply with all Application Requirements, including submission of the nondiscrimination

certification, it is deemed “non-responsive,” and it does not proceed to the “evaluation” stage.

See Complt. Ex. 9 at 17.(“Responsive Applications meeting the requirements outlined in the

Application Requirements section will be evaluated by an Evaluation Committee.”), No waiver

of this certification exists. Plaintiff's own allegations state that “a failure to check the box onthe

electronic-only application would have caused 71Five’s application to be ‘considered non-

responsive,’ meaning it would ‘not be considered further.’” Complt. 4 95. Thus, even on the face .

_ of the Complaint, the RFA does not permit applicants to opt out of the nondiscrimination

requirement for any reason. □

Second, Plaintiff argues in its Reply Brief that YDD permits secular conduct as an

exception to the nondiscrimination requirement by “allow[ing] many successful applicants to

openly discriminate in the provision of services based on race, ethnicity, gender, and national

origin.” PIf. Reply pg. 8. Plaintiff gives the following examples, among others:

Defendants awarded $220,000 to Ophelia’s Place even though its

mission is limited to helping girls.

Defendants awarded $220,000 to the Black Parent Initiative even

though its youth programs “serve African and African American

families with children.” .

Defendants awarded $560,000 to. the CAPECES Leadership

Institute even though its website lists “[w]ho we serve & work with” □

as “Latin/e/o/a/x, immigrant, Indigena, Afrodescendiente, and

farmworker children, youth, adults, and elders in rural and urban

Dann ARTTY MDNCY □ □

‘communities of the Mid-Willamette Valley (Marion, Polk,

Yamhill).” □

Defendants awarded $75,479:to. the Center for African Immigrants □

and Refugees Organization (CAIRO) even though its mission is to

offer “programs, services, community organizing and collaborative

leadership that create equitable opportunities for African refugees .

and immigrant children, youth and families to thrive.”

Td. Plaintiff cites to these organizations’ public websites as evidence of these allegations

support of their argument that secular “discrimination” is permitted in the provision of services.

The Court does not find this argument persuasive for three reasons,

First, Plaintiff only raised this argument in its Reply brief, depriving Defendants of the

opportunity to substantively respond. Second, Plaintiff fails to allege these facts in the

Complaint, thus failing to provide notice pleading as required by the federal rules and, again,

depriving Defendants of notice and ari opportunity to respond. Third, even if the facts alleged in

Plaintiff's Reply were properly at issue before the Court in either the Complaint or the Plaintiff's

Motion, none of the allegations allow the Court to find that simply directing an organization’s

services to particular demographics in the community, in culturally responsive ways, constitutes

“discrimination” as contemplated by the nondisotimination clause. For instance, there is no □

evidence or even an allegation that people who fall outside the target.demographics of each

organization are refused services for discriminator reasons or are otherwise unlawfully excluded.

Similarly, there is no evidence or allegation that any other organization or successful grant

Page 7 _OPTNION ANT) CORNER 2 .

_ applicant discriminates in its hiring practices. By contrast, Plaintiff admits that it discriminates

by refusing to hire employees who do not sign an attestation of faith.

Neither of the Tingley factors apply here. The nondiscrimination requirement is neutral

and generally applicable and, therefore, it is not subject to strict scrutiny.

__b. Defendants’ nondiscrimination requirement does not turn on an. □□

applicant’s religious character or religious exercise.

Plaintiff argues that the nondiscrimination requirement should be struck down based ona

similarity to the funding restrictions that were struck down in the Trinity Lutheran line of cases.

The Court disagrees. .

In the Trinity Lutheran line of cases, the Supreme Court struck down funding restrictions .

that categorically denied benefits to certain institutions based-solely on the religious characterof = □

the institutions or their religious activities. In Trinity Lutheran, the Court held that a church

could not be excluded from a public benefit “solely because it [was] a church.” Trinity Lutheran

Church of Columbia, Inc. v. Comer, 582 U.S. 449, 467 (2017). In Espinoza, the Court held that a.

state could not impose a “categorical ban” on aid to “religious schools,” “solely because they are □

religious.” Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464, 485, 487 (2020). Similarly, in

Carson, the Court struck down a funding restriction that “rigidly exclude[d] any and all sectarian

schools.” Carson, 596 U.S. at 781. In all three cases, the Court concluded that the funding

restrictions excluded recipients “solely because of their religious character.” Jd. at 780 (quoting

Trinity Lutheran, 582 U.S, at 462); Espinoza, 591 U.S. at 487 (same). The Court in Carson also

made clear that excluding a recipient based on how they would use the funding — i.e., for

religious purposes, was not a proper distinction, 596 U.S. at 788 (“In short, the prohibition on

8 OPINION AND ORDER :

status-based discrimination under the Free Exercise Clause is not a permission to engage in use-

based discrimination”).

Here, YDD’s grant program does not exclude applicants based on the religious character

of the applicants or the religious use of the funds being granted. Plaintiff alleges that four other

faith-based organizations received grants under the program the same year that Plaintiffs =

application was denied. Complt. § 10 1-02. The nondiscrimination requirement did not disqualify

those organizations because those organizations do not discriminate in their employment —

practices with regard to any of the listed characteristics. See Complt. { 103.

- Plaintiff's own application experience demonstrates that the denial of funding had

nothing to do with Plaintiff's religious character or its planned use of the funds — both of these

_factors were known to the agency during the entire pendency of Plaintiffs application, and

neither factor precluded an award of funding. It is clear from the face of the Complaint that

Plaintiff was disqualified and the funding was denied because Plaintiff discriminates in its □

‘employment practices. Complt. 9:90. Unlike any of the Trinity Lutheran line of cases, Plaintiff

not denied funding or eligibility because of its religious character or its use of funds.

2. Plaintiff cannot show a likelihood of success on the merits of its church

autonomy claims.

Plaintiff's church autonomy claims are unlikely to succeed on the merits because the

church autonomy doctrine is an affirmative defense. Therefore, these claims fail to state a

cognizable claim for relief.

Courts have held that churches have autonomy in making decisions regarding theirown _

internal affairs. This “church autonomy doctrine” prohibits civil court review of internal church

disputes involving matters of faith, doctrine, church governance, and polity. Kedroffv. St.

Nicholas Cathedral, 344 U.S. 94, 116-17, 2 S.Ct. 143, 97 L.Ed. 120 (1952). The doctrine is

OW PLADTAITMAT AKTITR MDNCYD .

rooted in the First Amendment's Free Exercise and Establishment Clauses. Bollard v. Cal.

Province of the Soc'y of Jesus, 211 F.3d 1331, 1332 (9th Cir. 2000) (order denying rehearing en □

- banc) (Wardlaw, J., dissenting) (“Though the concept originated through application of the Free

Exercise Clause, the Supreme Court has held that the Establishment Clause also protects church

autonomy in internal religious matters.”). The doctrine is also rooted in “a long line of Supreme

Court cases that affirm the fundamental right of churches to ‘decide for themselves, free from

state interference, matters of church government as well as those of faith and doctrine.” EEOC

v. Catholic Univ. of Am: 83 F.3d 455, 462 (D.C.Cir.1996) (quoting Kedroff, 344 U.S. at 116,73

143).

The principles articulated in the church autonomy line of cases also apply to civil rights .

cases. For example, courts have recognized a ministerial exception that prevents adjudication of

Title VII employment discrimination cases brought by ministers against churches. E. & EEOC v.

Catholic Univ. of Am., 83 F.3d 455 (D.C.Cir.1996); McClure v. Salvation Army, 460 F.2d 553

(5th Cir.1972). See also Rayburn v. General Conference of Seventh-Day Adventists, F.2d

1164, 1168 (4th Cir, 1985) (The right to choose ministers is an important.part of internal church

governance and can be essential to the well-being of a church, “for perpetuation of a church's

existence may depend upon those whom it selects to preach its values, teach its message, and

interpret its doctrines both to its own membership and to the world at large”). °

However, the church autonomy doctrine, or ministerial exception, is an affirmative □

defense against suit by a disgruntled church employee, not a standalone right that can be wielded

against a state agency. See Puri v. Khalsa, 844 F.3d 1152, 1158 (9th Cir. 2017) (“The ministerial

exception is an affirmative defense”) (internal citations omitted). Not a single case in the

Pace 19. OPINION AND ORDER . □

precedent discussed above expanded the church autonomy doctrine into an affirmative claim.? In

other words, while the church autonomy doctrine may be used as a shield, it has not been

allowed to be used as a sword. These claims therefore fail to state a cognizable claim for relief

and are unlikely to succeed on the merits. .

3. Plaintiff is seeking a mandatory injunction, which is disfavored by the

courts and results in a higher burden.

Finally, even if Plaintiff could show a likelihood of success on the merits, the mandatory

injunction that it seeks requires an even higher burden. Mandatory injunctions are “particularly:

disfavored,” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th

Cir. 2009), and place a higher burden on the plaintiff to show not only that he is likely to succeed

on the merits, but also that “the facts and law clearly favor the moving party.” Stanley v. Univ. of

S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994) (cleaned up).

The distinction between the two types of injunctions[, mandatory vs. prohibitory,] can □

fairly be categorized as one of action versus inaction. Fellowship of Christian Athletes v. San

Jose Unified Sch. Dist. Bd. of Educ., 82 F.4th 664, 684 (9th Cir. 2023) (citing Ariz. Dream □□□

Coal. v. Brewer, 757 F.3d 1053, 1060 (9th Cir. 2014). “A mandatory injunction orders a

_ responsible party to take action, while [a] prohibitory injunction prohibits a party from taking

action and preserves the status quo pending a determination of the action on the merits.” Ariz.

Dream, 757 F.3d at 1060 (cleaned up)). The difference is legally significant because mandatory -

2 Plaintiff cites to two out-of-Circuit cases to support its church autonomy claims. In Darren Patterson

Christian Academy, the plaintiff won a preliminary injunction by default: the court concluded that the □

plaintiff was likely to succeed on the merits when the defendants made no substantive arguments on the

merits, and the court declined to “make [the] [d]efendants’ arguments for them.” Darren Patterson

Christian Academy v. Roy, 2023 WL 7270874, at *14-15 (D. Colo. Oct 20, 2023). In JnterVarsity, the □

court acknowledged that a claim based on the ministerial exception was “novel” and that it was “unclear”

_ whether such a claim could be brought at all. Inter Varsity Christian Fellowship/USA y, Bd. of Governors

of Wayne State Univ., 413 F.Supp.3d 687, 694 (E.D. Mich. 2019). Neither-opinion is binding on this

Court, and this Court does not find the reasoning in either case to be persuasive or applicable here.

Dana 11 {ADTRITCOYRT A KITTY ADnTD

injunctions are “particularly disfavored,” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH

& Co., 571 F.3d 873, 879 (9th Cir. 2009), and place a higher burden on the plaintiffto show “the

facts and law clearly favor the moving party.” Stanley v. Univ. of S. Cal., 13 F.3d 13 13, 1320

(9th Cir. 1994) (cleaned up). _

The inquiry is whether the party seeking the injunction seeks to alter or maintain the

status quo. Fellowship of Christian Athletes, 82 F.4th at (citing Arizona Dream, 757 F.3d at1060-

61 (9th Cir. 2014)). The status quo refers to “the legally relevant relationship between the parties

before the controversy arose,” id. (emphasis omitted), or “to the last uncontested status which

preceded the pending controversy.” GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199,1210

Cir, 2000). □

Here, Plaintiff argues that it seeks “to reinstate the last uncontested status, when the

ministry was participating in the grant program and had two awards for the 2023-2025 grant

cycle.” Plf Reply (#35) p.2. However, this characterization of “the last uncontested status” □

ignores the undisputed timing of the events at issue. The policy change that implemented the □ □

nondiscrimination requirement took place at the beginning of the 2023 RFA grant cycle, on

March 1, 2023. Plaintiff did not contest the policy at the time of application? Instead, Plaintiff

certified compliance with the new policy and proceeded to file an application notwithstanding

> It is possible that, if Plaintiff had filed this lawsuit-at the time of application, seeking only eligibility to

apply for the grant, the outcome might have been different. Essentially, Plaintiff could have argued that -

the “last uncontested status” was that it was eligible for the grant, as it had been in years past, and

therefore a preliminary injunction would merely preserve the status quo of prior eligibility. This would

have been similar to the plaintiffs in Arizona Dream Act Coalition, who became suddenly ineligible for a

driver’s license due to a new policy requirement. Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053,

1061 (9th Cir. 2014). However, in that case, the plaintiffs were simply challenging their change in

eligibility status; they were not asking the court to affirmatively award them a driver’s license. See id.

Here, Plaintiff does not merely challenge eligibility, it requests an affirmative award of an individual

grant. This posture is distinguishable from Arizona Dream. Plaintiff also missed the chance to make this

argument by waiting until after the grant had-been denied because now Plaintiffs status as eligible is no

longer the status quo. Thus, the case at bar is distinguishable both for the timing and for the substance of

- the requested injunction.

Pace 19 _ OPINION ANTD ORDER :

Plaintiff's trae employment practices. Plaintiff did not contest YDD’s policy until the grant □□

funding was denied. At that time, Plaintiff was clearly ineligible for the grant under the terms of -

the RFA, and had been for many months, no Grant Agreement had been entered, and YDD had

- not finalized the award or disbursed any of the funds. Therefore, restoring the “status quo” or the

“last uncontested status prior to the controversy” would not grant Plaintiff the relief it seeks. -

Additionally, Plaintiff concedes that YDD “may need to perform several actions” if the □

preliminary injunction is granted. In fact, Plaintiff does not dispute Defendants’ contention that

granting the motion would require the following steps to award □□□ grants to Plaintiff: the

Procurement department would have to negotiate the proper Grant Agreements, which are

negotiated prior to each award being finalized. Assuming such agieements could be negotiated,

funds would have to be disbursed to Plaintiff that have already been awarded to another

applicant and fully allocated under Grant Agreements that already exist. This would require

-YDD to add additional funds to the grant programs and then, over time, disburse it to Plaintiffs,

Def. Resp. (#31) p. 31. Mandating all of these actions would require imposing a mandatory

injunction. This results in a higher burden on Plaintiff. Plaintiff must show not only a likelihood

of suecess on the merits, but also that “the facts and law clearly favor” Plaintiff's claims. For all

of the reasons already discussed, Plaintiff cannot do so. _

B. Plaintiff has not alleged irreparable harm.

First, “monetary injury is not normally considered irreparable.” Los Angeles Mem’ ©

Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197, 1202 (9th Cir. 1980). Nonetheless,

“Tt]he threat of being driven out of business is sufficient to establish irreparable harm.” Am.

Passage Media Corp. v. Cass Commc'ns, Inc., 750 F.2d 1470, 1474 (9th Cir. 1985). As the

Second Circuit has explained, “[t]he loss of ... an ongoing business representing many years of

effort and the livelihood of its ... owners, constitutes irreparable harm. What plaintiff stands to

lose cannot be fully compensated by subsequent monetary damages.” Roso-Lina Beverage

Distributors, Inc. v. Coca-Cola Bottling Co. of New York, Inc., 749 F.2d 124, 125-26 (2d Cir.

1984) (per curiam). Thus, showing a threat of “extinction” is enough to establish irreparable .

. harm, even when damages may be available and the amount of direct financial harm is □

ascertainable. Am. Passage Media Corp., 750 F.2d at 1474. □

Here, Plaintiff has alleged monetary damage, but not extinction of the organization: __

71Five Ministries cannot get through the 2-year grant cycle without

reducing its programs, staff, or both. Amundsen Decl. { 97. As a

direct result of Defendants’ actions, 71Five staff have already had

to take time away from mission-critical programs to focus on

fundraising. Jd. { 96. This reduction of mission-critical work will, □

continue without an injunction. Jd. And Defendants’ actions will □

likely affect 71Five’s ability to pay its employees, some of whom

had their salaries partially funded by. previous grants awarded by

Defendants. Jd. | 98.

Plf. Mtn. Prelim. Inj. (#20) p. 24: Without the threat of complete closure of the organization, □

Plaintiff has not alleged monetary damage that constitutes irreparable harm.

. Second, other courts in this district have determined that the alleged unequal treatment of

a plaintiff's grant funding application “constitutes a discrete past harm.” Cocina Cultura LLC v.

Oregon, 2020 WL 7181584, at *2 (D. Or. Dec. 7, 2020) (citing Great N. Res., Inc. v. Coba, 2020

WL 6820793, at *2 (D. Or. Nov. 20, 2020) (“Plaintiff applied for a grant from the Oregon Cares

Fund, which applicants know they may only apply for once.”), “Past exposure to illegal conduct

not in itself show a present case or controversy regarding injunctive relief, ... if

1A MIDTAITCYAT □□□ MDMCD .

unaccompanied by any continuing, present adverse effects.” O'Shea v. Littleton, 414 US. 488,

_ - 495-96 (1974); see also City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983).

Here, Plaintiff faced the alleged unconstitutional barrier when it its application for a grant □□

was denied on November 14, 2023. Complt. at 99112-113. Plaintif? s alleged constitutional .

harm therefore occurred on that date. Defendants have submitted evidence stating that the grant

funds allocated for Plaintiff's application were awarded to the next highest scoring applicants

eligible for the grants: “all of those funds have been allocated to those grant awardees and are

subject to Grant Agreements.” Detman Decl. at § 20; Hofmann Decl. at { 16. Some ofthe funds □

have been disbursed in reimbursement for project expenses, Detman Decl. at { 20. □

By contrast, Plaintiff has not proffered any evidence or allegation that it is experiencing;

orwill likely experience, any on-going harm or damage to constitute irreparable injury. □

Plaintiff's only allegations in this regard state: . .

Grantors often ask about Five Ministry’s successful participation

in Defendants’ grant program, and this successful participation has —s-

_ been instrumental to other foundations’ and agencies’ decisions to

- fund the ministry. [Amundsen Decl. 98.] The ministry’s Executive |.

Directot expects that agencies and foundations will no longer

support 71Five when they learn that Defendants have disqualified

the ministry from the State’s grant program. Id.

Plf. Mtn P.I. (#20) at 23. The Executive Director’s “belief” about what might happen with other

grantors and funders is insufficient to state a claim for an ongoing or irreparable injury. See

Herb Reed Enters, LLC y, Fla. Ent Memt, Inc., 736 F.3d 1239, 1250-51 (9th Cir. 2013) □

(explaining that “[t]hose seeking injunctive relief must proffer evidence sufficient to establish a

"likelihood of irreparable harm”).

Plaintiff's claims of irreparable harm are further undercut by its delay in seeking relief.

See Cocina Cultura LLC, 2020 WL 7181584, at *4 (“Plaintiff's nearly three-month delay in

Ce

seeking injunctive relief “implies a lack of urgency and irreparable harm.”). “A preliminary □

| injunction is sought upon the theory that there is an urgent need for speedy action to protect the

plaintiff's rights. By sleeping on its rights, a plaintiff demonstrates the lack of need for speedy

action.” Lydo Enters., Inv. v. City of Las Vegas, 745 F.2d 1211, 1213 (9th Cir. 1984) (quoting

Gillette Co. v. Ed Pinaud, Inc., 178 F. Supp. 618, 622 (S.D.N.Y. 1959)).

Here, Plaintiff's application for a grant was denied on November 14, 2023. This lawsuit

was filed on March 4, 2024, and the motion for the preliminary injunction was filed on March

20, 2024. Plaintiff's four-month delay in seeking injunctive relief demonstrates a lack of urgency

and a lack of irreparable harm.

- (. The balance of equities and the public interest do not weigh in favor of an

injunction.

“When the government isa party, these last two factors [of the injunction analysis]

merge.” Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). It is “always in -

the public interest to prevent the violation of a party’s constitutional rights.” See, e.g., Baird v.

Bonta, 81 F.4th 1036, 1040 (9th Cir. 2023) (citations omitted). However, in this case, the .

balance of equities and public interest do not weigh in favor of the Plaintiff. Plaintiff's requested

relief asks the Court to require the YDD to enter into an agreement with Plaintiff for grant

funding, to disburse money, and to engage in multiple steps to monitor a currently unfunded

grant award. The grant funds that Plaintiff seeks have already been awarded and allocatedto

other applicants. This type of mandatory injunction is disfavored by the courts. Considering the

lack of urgency, the failure to show irreparable harm, and the failure to show a likelihood success □

Dace 14. ODINTON ANT) ORNERR

on the merits, the balance of equities and public interest here weigh in favor of denying the

injunction. —

Il. Defendants are entitled to qualified immunity.

Qualified immunity shields government officials from section 1983 liability “insofaras

their conduct does not violate clearly established statutory or constitutional rights of which 2

reasonable person would have known.” Harlow y. Fitzgerald, 457 US. 800 (1982). The qualified

immunity analysis requires ‘a court to address two questions: (1) whether the facts alleged or □

shown by the plaintiff establish a constitutional violation, and (2) whether the right at issue was :

clearly established at the time. Saucier v. Katz, 533 U.S. 194, 201, (2001); see also Pearson □□□

Callahan, 555 U.S, 223 (2009) (overruling Saucier ’s requirement that qualified immunity

analysis proceeds in a particular sequence). The right must have been clearly established atthe

time of the defendant's alleged misconduct, so that reasonable official would have understood

that what he or she was doing under the circumstances violated that right. Wilson v. Layne, 526

603, 615 (1999). Courts have discretion in deciding which prong to address first, depending

on the circumstances of the case. Pearson, 555 US. at 242-43, .

In this case, the Court has already determined that Plaintiff is unlikely to succeed on the

‘merits of their claims because the nondiscrimination clause is neutral and generally applicable

and does not turn on Plaintiff's religious exercise, and because there is no precedent determining

- that a religious organization’s right to use discriminatory employment practices can be the basis □□

for an affirmative claim against a government agency who denies grant funding for that reason.

Lacking such a precedent, and lacking clarity as to whether a.constitutional violation even exists

here, the Court finds that the rights claimed by the Plaintiff are not “clearly established,” such

Dage 17... OPINION ANT) ORDER . :

that Defendants should have known that requiring grant applicants to certify nondiscriminatory □

employment practices could be a constitutional violation.

ORDER

- For the foregoing reasons, Defendants’ Motion to Dismiss (#34) is granted, and

Plaintiff's Motion for a Preliminary Injunction (#20) is denied. Defendants are entitled to

- qualified immunity. Plaintiffs Complaint is dismissed with prejudice. Judgi ént shall be entered

for the Defendants. .

DG LO oO 7

DATED this _ day of June, 2024,

© MARK D. CLARKE

} _. United States Magistrate Judge □

g ODTNITAN ABKTTIDUMOHLER so