State of California v. U.S. Department of Homeland Security ( 2020 )

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’