Southwest Key Programs, Inc. v. City of Escondido

MOTION for Summary Judgment

S.D. Cal.August 10, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2523/029389-0004 9939607.1 a08/10/16 NOTICE OF MOTION & MOTION FOR SJ Jeffrey R. Epp, City Attorney (State Bar No. 123565) Jepp@ci.escondido.ca.us Michael R. McGuinness, Asst. City Attorney (State Bar No. 132646) mmcguinness@ci.escondido.org Mark P. Bookholder, Dep. City Attorney (State Bar No. 289218) mbookholder@ci.escondido.org OFFICE OF THE CITY ATTORNEY 201 N. Broadway Escondido, CA 92025 Telephone: 760-839-4608 John A. Ramirez (State Bar No. 184151) jramirez@rutan.com Michael D. Rubin (State Bar No. 62588) mrubin@rutan.com Alan B. Fenstermacher (State Bar No. 278171) afenstermacher@rutan.com RUTAN & TUCKER, LLP 611 Anton Boulevard, Suite 1400 Costa Mesa, California 92626-1931 Telephone: 714-641-5100 Attorneys for Defendant CITY OF ESCONDIDO UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA SOUTHWEST KEY PROGRAMS, INC. Plaintiff, v. CITY OF ESCONDIDO Defendant. Case No. 3:15-cv-01115-H (BLM) CITY OF ESCONDIDO’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT [Filed concurrently with City’s Notice of Motion & Motion for SJ; Memorandum of Points & Authorities; Compendium of Evidence; Req for Judicial Notice; [Proposed] Order] Motion Hearing: Honorable Marilyn L. Huff Courtroom: 15A Date: September 12, 2016 Time: 10:30 a.m. Case 3:15-cv-01115-H-BLM Document 56 Filed 08/10/16 Page 1 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2523/029389-0004 9939607.1 a08/10/16 -1- NOTICE OF MOTION & MOTION FOR SJ 15cv01115 NOTICE IS HEREBY GIVEN that on September 12, 2016 at 10:30 a.m., or as soon thereafter as counsel may be heard by the above-entitled Court, in Department 15A, located at 333 West Broadway, San Diego, CA 92101, defendant City of Escondido (“City”) will and hereby does move the Court for summary judgment as to all claims brought by plaintiff Southwest Key Programs, Inc. (“SWK”), or in the alternative, partial summary judgment, on the grounds that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law as to all four of SWK’s causes of action for the reasons that: 1. The federal Fair Housing Act (“FHA”) and California Fair Employment and Housing Act (“FEHA”) do not apply to the type of facility plaintiff Southwest Key Programs, Inc. (“SWK”) sought to open in the City – a custodial facility for occupancy by unaccompanied alien children (“UAC”) in the United States illegally – because such facilities are not “dwellings”, “residences” or “housing accommodations” and the UAC are not “willing participants.” The FHA and FEHA were intended to promote freedom of choice in housing and freedom of movement, and nothing in their language or legislative history indicates they were intended to apply to custodial facilities for UAC intended to limit, rather than facilitate, the freedom of movement of those detained. Accordingly, SWK’s claims brought under FHA and FEHA, which are based on the City’s alleged actions that prevented SWK from opening a UAC facility in the City, must be dismissed. 2. SWK has also failed to state a claim under the FHA and FEHA because the City’s alleged actions did not make housing unavailable to a protected class, an essential element of both claims. UAC are not a protected class, and even if they were, no UAC apprehended by federal authorities during the relevant time period were denied housing. 3. SWK does not having standing to bring an Equal Protection claim on behalf of UAC. Case 3:15-cv-01115-H-BLM Document 56 Filed 08/10/16 Page 2 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2523/029389-0004 9939607.1 a08/10/16 -2- NOTICE OF MOTION & MOTION FOR SJ 15cv01115 4. The Supremacy Clause is not a source of any federal rights, and “of its own force” does not create enforceable rights, and the purported cause of action brought by SWK under the same fails to state any cognizable claim. This motion is based upon this Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities, the City’s Request for Judicial Notice, the Declarations of Alan B. Fenstermacher, and Eva Heter, and the exhibits attached thereto as the City’s Compendium of Evidence, all pleadings and papers on file in this action, and upon such other matters as may be presented to the Court at the time of the hearing. Dated: August 10, 2016 RUTAN & TUCKER, LLP John A. Ramirez Michael D. Rubin Alan B. Fenstermacher By: /s/ Alan B. Fenstermacher Alan B. Fenstermacher Attorneys for Defendant CITY OF ESCONDIDO Case 3:15-cv-01115-H-BLM Document 56 Filed 08/10/16 Page 3 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2523/029389-0004 9939607.1 a08/10/16 -3- NOTICE OF MOTION & MOTION FOR SJ 15cv01115 CERTIFICATE OF SERVICE I hereby certify that on August 10, 2016, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF System which will send notification of such filing to the email addresses denoted on the Electronic Mail Notice List, and I hereby certify that pursuant to agreement from counsel for plaintiff, I have emailed the foregoing to counsel for plaintiff. Executed August 10, 2016. s/ Alan B. Fenstermacher ALAN B. FENSTERMACHER RUTAN & TUCKER, LLP 611 Anton Boulevard, Suite 1400 Costa Mesa, California 92626-1931 Telephone: 714-641-5100 afenstermacher@rutan.com Case 3:15-cv-01115-H-BLM Document 56 Filed 08/10/16 Page 4 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102/029389-0004 9817936.6 a08/10/16 CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ Jeffrey R. Epp, City Attorney (State Bar No. 123565) Jepp@ci.escondido.ca.us Michael R. McGuinness, Asst. City Attorney (State Bar No. 132646) mmcguinness@ci.escondido.org Mark P. Bookholder, Dep. City Attorney (State Bar No. 289218) mbookholder@ci.escondido.org OFFICE OF THE CITY ATTORNEY 201 N. Broadway Escondido, CA 92025 Telephone: 760-839-4608 John A. Ramirez (State Bar No. 184151) jramirez@rutan.com Michael D. Rubin (State Bar No. 62588) mrubin@rutan.com Alan B. Fenstermacher (State Bar No. 278171) afenstermacher@rutan.com RUTAN & TUCKER, LLP 611 Anton Boulevard, Suite 1400 Costa Mesa, California 92626-1931 Telephone: 714-641-5100 Attorneys for Defendant CITY OF ESCONDIDO UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA SOUTHWEST KEY PROGRAMS, INC. Plaintiff, v. CITY OF ESCONDIDO Defendant. Case No. 3:15-cv-01115-H (BLM) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR PARTIAL SUMMARY JUDGMENT [Notice of Motion for Summary Judgment; Compendium of Evidence in Support Motion for Summary Judgment; Request for Judicial Notice, and [Proposed] Order Filed Herewith] Motion Hearing: Honorable Marilyn L. Huff Courtroom: 15A Date: September 12, 2016 Time: 10:30 a.m. / / / Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 1 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page 102/029389-0004 9817936.6 a08/10/16 -i- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 I. INTRODUCTION AND BRIEF STATEMENT OF FACTS ......................... 1 II. SUMMARY JUDGMENT STANDARD ........................................................ 3 III. THE FHA DOES NOT APPLY TO SWK’S UAC FACILITIES ................... 3 A. The FHA Is Intended To Promote Freedom Of Choice In Housing .................................................................................................. 3 B. Detention Facilities Are Not Dwellings or Residences ......................... 5 IV. SWK’S PROPOSED PROJECT IS NO DIFFERENT THAN A DETENTION FACILITY .............................................................................. 10 A. The Project Constitutes a Detention Facility Under the Governing Statutes ............................................................................... 10 B. The Project Constitutes a Detention Facility Under the Flores Settlement Agreement ............................................................... 13 C. The Project Constitutes a Detention Facility Under Case Law ....................................................................................................... 14 D. There is No Dispute The Project Constitutes a Detention Facility .................................................................................................. 16 V. THE FEHA DOES NOT APPLY TO SWK’s UAC FACILITIES ............... 19 VI. THE CITY’S PURPORTED ACTIONS DID NOT MAKE HOUSING UNAVAILABLE TO A PROTECTED CLASS ........................ 20 VII. SWK HAS NO STANDING TO RAISE THIRD-PARTY EQUAL PROTECTION CLAIMS ................................................................ 22 VIII. SWK HAS NO CLAIM UNDER THE SUPREMACY CLAUSE ............... 24 IX. CONCLUSION .............................................................................................. 25 Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 2 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) 102/029389-0004 9817936.6 a08/10/16 -ii- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 FEDERAL CASES Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ................................................................................................ 3 Angstman v. Carlsbad Seapoint Resort II, L.P., 2011 U.S. Dist. LEXIS 54788 (S.D. CA 2011) .................................................... 19 B.I.C. v. Asher, 2016 U.S. Dist. LEXIS 32647 (W.D. Wash. 2016) .............................................. 12 Bunikyte v. Chertoff, 2007 U.S. Dist. LEXIS 26166, 2007 WL 1074070 (W.D. Tex. 2007) ................................................................... 13 Burney v. Housing Authority of County of Beaver, 551 F. Supp. 746 (W.D. Pa. 1982) .......................................................................... 4 Caboni v. Gen. Motors Corp., 278 F.3d 448 (5th Cir. 2002) ................................................................................... 3 Connecticut Hosp. v. City of New London, 129 F.Supp.2d 123 (D. Conn. 2001) ....................................................................... 9 Construction Industry Asso. v. Petaluma, 522 F.2d 897 (9th Cir. 1975) ................................................................................. 25 D.B. v. Cardall, 2016 U.S. App. LEXIS 11901 (4th Cir. 2016) .............................. 10, 12, 14, 15, 16 Edwards v. Media Borough Council, 430 F.Supp.2d 445 (E.D. Pa. 2006) ....................................................................... 21 Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973) .......................................................................................... 21, 22 FERC v. Mississippi, 456 U.S. 742 (1982) .............................................................................................. 24 Fleck & Associates, Inc. v. Phoenix, City of, an Arizona Mun. Corp., 471 F.3d 1100 (9th Cir. 2006) ............................................................................... 23 Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 3 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page(s) 102/029389-0004 9817936.6 a08/10/16 -iii- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 FEDERAL CASES (CONT.) Flores v. Meese, 681 F.Supp.665 (C.D. Cal. 1988) ........................................................ 10, 13, 14, 19 Garcia v. Condarco, 114 F.Supp.2d 1158 (N.M. 2000) ............................................... 4, 6, 7, 8, 9, 10, 19 Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103 (1989) .............................................................................................. 24 Intermountain Fair Housing Council v. Boise Rescue Mission Ministries, 717 F.Supp.2d 1101 (D. Idaho), aff’d on other grounds, 657 F.3d 988 (9th Cir. 2011) ..................................................................................................... 5, 6 Izzo v. Borough of River Edge, 843 F.2d 765 (3d Cir. 1988) .................................................................................. 25 Johnson v. Dixon, 786 F. Supp. 1 (D.D.C. 1991) .................................................................................. 6 Keller v. City of Fremont, 719 F.3d 931 (8th Cir. 2013) ................................................................................. 21 Kowalski v. Tesmer, 543 U.S. 125 (2004) .............................................................................................. 23 Noble Shaheed Allah El v. Avesta Homes, LLC, 520 Fed. Appx. 806 (11th Cir. 2013) .................................................................... 21 Plyler v. Doe, 457 U.S. 202 (1982) .......................................................................................... 1, 21 San Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 470 (9th Cir. 1998) ................................................................................. 23 Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981) ................................................................................................ 24 Smith v. Salvation Army, 2015 U.S. Dist. LEXIS 113680 (W.D. Pa.)............................................................. 5 Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 4 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page(s) 102/029389-0004 9817936.6 a08/10/16 -iv- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 FEDERAL CASES (CONT.) South-Suburban Housing Center v. Greater South Suburban Bd. of Realtors, 935 F.2d 868 (7th Cir. Ill. 1991) ..................................................................... 21, 22 Southend Neighborhood Improvement Ass’n v. County of St. Clair, 743 F.2d 1207 (7th Cir. 1984) ................................................................................. 4 United States v. University of Nebraska at Kearney, 940 F.Supp.2d 974 (D. Neb. 2013) ................................................................... 8, 10 Valle Del Sol Inc. v. Whiting, 732 F.3d 1006 (2013) ............................................................................................ 22 Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) .................................................................................................. 25 Walding v. United States, 955 F.Supp.2d 759 ........................................................................................... 11, 15 Walker v. City of Lakewood, 272 F.3d 1114 (9th Cir. 2001) ......................................................................... 19, 21 West v. Atkins, 487 U.S. 42 (1988) ................................................................................................ 23 Woods v. Foster, 884 F.Supp. 1169 (N.D. Ill. 1995) ........................................................................... 6 Zivojinovich v. Ritz Carlton Hotel Co., LLC, 445 F. Supp. 2d 1337 (M.D. Fla. 2006) ................................................................ 23 CALIFORNIA CASES Sada v. Robert F. Kennedy Med. Ctr., 56 Cal.App.4th 138, 150, n. 5 (Cal. App. 2d Dist. 1997)...................................... 19 OTHER STATE CASES Renda v. Iowa Civil Rights Commission, 784 N.W.2d 8 [2010 Iowa Sup. LEXIS] (2010) ............................................... 9, 10 Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 5 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page(s) 102/029389-0004 9817936.6 a08/10/16 -v- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 FEDERAL STATUTES 6 U.S.C. section 279 ............................................................................................................. 10 section 279(a) .................................................................................................. 10, 13 section 279(b)(1)(C) .............................................................................................. 11 section 279(b)(1)(J)(ii) .......................................................................................... 11 section 279(b)(1)(J)(iv).......................................................................................... 11 section 279(b)(2)(A) .............................................................................................. 11 section 279(b)(2)(B) .............................................................................................. 11 8 U.S.C. section 1226(a) ...................................................................................................... 12 section 1232 ........................................................................................................... 10 section 1232(b)(1) ............................................................................................ 11, 12 section 1232(b)(3) .................................................................................................. 12 section 1232(c)(2) .................................................................................................. 11 section 1232(c)(2)(A) ............................................................................................ 12 28 U.S.C. section 2241 et. seq. ............................................................................................... 12 42 U.S.C. section 1983 ..................................................................................................... 22, 23 section 3601 ............................................................................................................. 8 section 3602(b) .............................................................................................. 4, 5, 20 section 3604(a) .................................................................................................. 3, 21 STATE STATUTES Government Code sections 12900 - 12996 .......................................................................................... 19 section 12927 ......................................................................................................... 20 section 12927(d) .................................................................................................... 19 RULES Federal Rules of Civil Procedure rule 56(c) .................................................................................................................. 3 Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 6 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page(s) 102/029389-0004 9817936.6 a08/10/16 -vi- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 REGULATIONS 8 Code of Federal Regulations section 212.5(b)(3) ................................................................................................. 13 OTHER AUTHORITIES 114 Cong. Rec. 4322 (1968) ......................................................................................... 4 134 Cong. Rec. E2252-01.................................................................................................................. 5 H4603-02 ................................................................................................................. 4 H6491-02 ................................................................................................................. 5 1988 WL 173469 ..................................................................................................................... 5 183051 ..................................................................................................................... 4 185128 ..................................................................................................................... 5 H.R. REP. 100-711, 24, 1988 ....................................................................................... 4 Martin A. Schwartz, 1 Section 1983 Litigation: Claims and Defenses (4th ed.) at section 3.01 ......................................................................................... 23 Special Report: The Measure of a Society: The Treatment of Unaccompanied Refugee and Immigrant Children in the United States, 45 Harvard C.R.-C.L. L. Rev. 247, 250-253 (2010)............................ 13, 14 Unaccompanied Minors Federal Programs Youth Care Services Manual, “Protocol For Reporting Absconded Clients” ....................................................... 17 Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 7 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102/029389-0004 9817936.6 a08/10/16 -1- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 I. INTRODUCTION AND BRIEF STATEMENT OF FACTS Plaintiff Southwest Key Programs, Inc. (“SWK”) is one of several entities that contracts with the federal government to house unaccompanied alien children (“UAC”) who enter the Country illegally. As made clear by the Supreme Court: “Unsanctioned entry into the United States is a crime, 8 U.S.C. § 1325, and those who have entered unlawfully are subject to deportation, 8 U.S.C. §§ 1251, 1252 (1976 ed. and Supp. IV).” Plyler v. Doe, 457 U.S. 202, 205 (1982). When discovered, UAC are apprehended by Immigration and Customs Enforcement (“ICE”) and/or the Department of Homeland Security (“DHS”) and taken into custody. They are then placed in custodial facilities by the Office of Refugee Resettlement (“ORR”) while they await a determination of an immigration court as to whether they will be deported. The placement of UAC is involuntary— UAC do not choose the provider of the detention facilities or the facility where they are placed, nor the city or state in which they are detained. This lawsuit arises out of SWK’s efforts to locate a facility to house UAC for the “interim period between a child’s transfer into a UAC program and the child’s release from custody by ORR or removal from the United States by the Department of Homeland Security (DHS)” in the City of Escondido (“City”). Cooperative Agreement, p. 1 (Ex. 13, p. 196).1 SWK first began exploring locations in the City in approximately February 2014—at the behest of its real estate agent—after being informed by the ORR about increased short term demand. Deposition of Alexia Rodriguez (“Rodriguez Depo.”), Vol. 2, pp. 297:24 - 298:3 (Ex. 3, pp. 103-104); SWK’s First Amended Complaint (“FAC”) ¶ 31 (Ex. 4, p. 126). After first exploring opening facilities at motel sites in the City, which SWK mistakenly believed it was entitled to do without any use permit (Rodriguez Depo., Vol. 2, p. 298:8-23 [Ex. 3, p. 104]), SWK ultimately applied for a conditional use 1 All of the City’s exhibits are in the Compendium of Evidence in Support of the City’s Motion for Summary Judgment, filed concurrently herewith. Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 8 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102/029389-0004 9817936.6 a08/10/16 -2- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 permit (“CUP”) to operate a custodial facility for up to 96 UAC at a former skilled nursing facility for the elderly, submitting its application in late May 2014. FAC ¶ 53 (Ex. 4, p. 130). The City’s Planning Commission heard SWK’s application on June 24, 2014, which it unanimously denied. Id. at ¶ 78. SWK (through the ACLU) subsequently appealed to the City Council, which ultimately affirmed the Planning Commission’s decision following a hearing on October 15, 2014. Id. at ¶ 111. Following the City Council’s decision, SWK filed this action in May 2015, alleging the denial violated the federal Fair Housing Act (“FHA”), the California Fair Employment and Housing Act (“FEHA”), the Equal Protection Clause, and the Supremacy Clause of the U.S. Constitution. Demand for UAC facilities plummeted from the time between when SWK first began exploring locations in the City and the City Council’s ultimate decision. During SWK’s Fiscal Year 2015—October 1, 2014 through September 30, 2015— SWK did not open any new facilities. Rodriguez Depo., Vol. 1, pp. 70:8-71:6 (Ex. 3, pp. 89-90). In fact, SWK was forced to reduce its beds by 567 across its programs in Fiscal Year 2015. Id. at p. 93:2-7. Notwithstanding this lack of demand, SWK alleges that the City’s actions violated the FHA, FEHA and the U.S. Constitution because the City took action to “restrict or deny housing opportunities or otherwise make unavailable or deny dwellings to persons because of race, color, national origin, ancestry, or some combination of these factors . . .” FAC ¶ 121 (Ex. 4, p. 149). As set forth below, the City respectfully submits that summary judgment should be granted in City’s favor on all causes of action because no claims are stated as a matter of law. As to the first and second causes of action: (i) the FHA and FEHA do not apply to SWK’s custodial UAC facilities because such facilities are not “dwellings”, “residences” or “housing accommodations”, and the UAC are not “willing participants”—the FHA and FEHA were intended to promote freedom of choice in housing and freedom of movement, and nothing in their language or Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 9 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102/029389-0004 9817936.6 a08/10/16 -3- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 legislative history indicates they were intended to apply to UAC custodial facilities, as such facilities are intended to limit, rather than facilitate, the freedom of movement of those detained; and (ii) even if SWK’s allegations were true, SWK has also failed to state a claim under the FHA and FEHA because the City’s purported actions did not make housing unavailable to a protected class because UAC are not a protected class, and even if they were, no UAC apprehended by federal authorities during the relevant time period were denied housing. As to the third cause of action, SWK does not having standing to bring an Equal Protection claim on behalf of UAC. As to the fourth (and final) cause of action, the Supremacy Clause is not a source of any federal rights, and “of its own force” does not create enforceable rights, making that cause of action, as plead in the FAC, woefully inadequate. II. SUMMARY JUDGMENT STANDARD A motion for summary judgment should be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[T]he nonmovant must respond to the motion for summary judgment by setting forth particular facts indicating that there is a genuine issue for trial.” Caboni v. Gen. Motors Corp., 278 F.3d 448, 451 (5th Cir. 2002). III. THE FHA DOES NOT APPLY TO SWK’S UAC FACILITIES A. The FHA Is Intended To Promote Freedom Of Choice In Housing The FHA provides that “it shall be unlawful . . . to . . . make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(a), emph. added. “‘Dwelling’ means any building, structure, or portion thereof which is occupied as, or designed or intended Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 10 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102/029389-0004 9817936.6 a08/10/16 -4- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 for occupancy as, a residence by one or more families. . . .” Id. at § 3602(b). Case law and the FHA’s legislative history confirm the FHA is intended to promote freedom of movement and freedom of choice of housing, with the element of freedom of choice being paramount. Garcia v. Condarco, 114 F.Supp.2d 1158, 1162-63 (N.M. 2000) (FHA does not apply to prisons or jails because there is “no indication in the language or the legislative history of the FHA to support the conclusion that Congress intended that Act to protect housing discrimination in detention facilities; especially since such facilities are intended to limit, rather than facilitate, prisoners freedom of movement.”); Burney v. Housing Authority of County of Beaver, 551 F. Supp. 746, 768-69 (W.D. Pa. 1982) (FHA’s legislative history [114 Cong. Rec. 4322, 5643 (1968), remarks of Sen. Mondale] reveals the “congressional intention in passing the legislation was to break up residential concentrations of minorities[,] . . . to foster integrated living patterns . . . [and] to promote freedom of choice in housing. . . . [The FHA] gives blacks freedom to move where they will.”); Southend Neighborhood Improvement Ass’n v. County of St. Clair, 743 F.2d 1207, 1210 (7th Cir. 1984), emph. added (“[The FHA] is designed to ensure that no one is denied the right to live where they choose for discriminatory reasons.”) Detaining UAC in custodial facilities is the antithesis of that purpose. Simply put, the FHA is intended to prohibit the limiting of an individual’s ability to live in the residence of their choice in the community. H.R. REP. 100- 711, 24, 1988 (Ex. 6, pp. 175-176). As stated by Congressman Rodino during discussion of the 1988 amendment of the Act: “I believe this bill is the logical and necessary next step in our attempt to deal with housing discrimination. The effort that we began in 1966 must be completed, so that all Americans can be assured of freedom of choice in choosing their homes.” 134 Cong. Rec. H4603-02, 1988 WL 183051 (Ex. 7, p. 179), emph. added. Congressman Rodino went on to state: “Mr. Speaker, 20 years ago the Congress made a promise to every American. We promised that we would ensure their right to housing of their choice, free of Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 11 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102/029389-0004 9817936.6 a08/10/16 -5- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 discrimination.” 134 Cong. Rec. H6491-02, 1988 WL 185128 (Ex. 8, p. 181), emph. added. Similarly, Congressman Charles A. Hayes proclaimed: “No American should be denied access to housing of their choice, and this legislation will help to prevent such discrimination.” 134 Cong. Rec. E2252-01, 1988 WL 173469. (Ex. 9, p. 182), emph. added. As will be explained, the primary purpose of the FHA has no application in the context of the case at bar—a detention/custodial facility, which is intended to limit, rather than facilitate, the freedom of movement of its occupants until the determination of their legal status. B. Detention Facilities Are Not Dwellings or Residences As stated, whether the City’s denial of the permit for SWK’s proposed facility is within the scope of the FHA’s prohibition on discrimination turns on whether it would be “occupied as . . . a residence.” 42 U.S.C. § 3602(b) (FHA definition of “dwelling”). Although a “residence” is not defined in the FHA, the courts have applied two primary factors in determining that a facility is a residence for purposes of the FHA: (i) the facility is intended for occupants who intend to remain there for a significant period of time (rather than simply a transient stay, like a motel); and (ii) the occupants view the facility as a place to return to during this period. Intermountain Fair Housing Council v. Boise Rescue Mission Ministries, 717 F.Supp.2d 1101, 1109-11 (D. Idaho), aff’d on other grounds, 657 F.3d 988 (9th Cir. 2011).2 The Court in Intermountain held that the FHA does not apply to a homeless shelter because it was not “residence” based on, among other things, that “the undisputed 2 In Smith v. Salvation Army, 2015 U.S. Dist. LEXIS 113680 (W.D. Pa.), the Court stated that it “is aware that, although the Ninth Circuit Court of Appeals affirmed the district court’s decision in Intermountain, it did so on different grounds without addressing the issue of whether the shelter was a dwelling. . . . However, the Court is relying on the district court’s opinion in Intermountain merely as persuasive authority, and nothing in the Ninth Circuit’s opinion renders the district court’s analysis any less persuasive.” Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 12 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102/029389-0004 9817936.6 a08/10/16 -6- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 evidence demonstrates that guests of the shelter are not charged a fee for staying in the shelter” and “are assigned a bed in a dormitory-style room, a hallway, or the day room . . .”3 See also, Johnson v. Dixon, 786 F. Supp. 1, 4 (D.D.C. 1991) (“The Act, in terms, protects only “buyers” and “renters” from unlawful discrimination. Plaintiffs, and the other inhabitants of the two shelters, are neither. Such accommodations as they have had at the shelters in the past have been provided gratis by the [defendants] . . .”). Like the plaintiffs in those cases, UAC do not pay to reside in the SWK facility at issue here, nor do they have any choice with respect to room assignments. Deposition of Daniela Rios (“Rios Depo.”), p. 48:15-20 (Ex. 1, p. 31; Deposition of Ismael Avilez (“Avilez Depo.”), p. 51:5-24 (Ex. 2, p. 51). It is certainly true that courts have given the FHA a generous construction in order to effectuate its broad and inclusive language. Woods v. Foster, 884 F.Supp. 1169, 1173 (N.D. Ill. 1995). Thus, courts have found “dwellings” within the meaning of the FHA to include trailers for migrant workers, a unit in a time-share resort, a nursing home for handicapped elderly people, a residential facility for homeless families, a residential school for emotionally disturbed adolescents, summer bungalows run by a country club, an AIDS hospice, cooperative apartment complexes, and a children’s home. Garcia,114 F.Supp.2d at 1160, n. 1-9. The common factor running through all of those cases, however, is the fact that the resident, either personally or through a legal guardian, voluntarily chose to reside at the facility in question. The facilities did not involve situations where the “residents” were involuntarily-confined inmates who had been placed in the facility by government order while awaiting a court’s determination as to whether those individuals should be deported. In fact, UAC have no choice as to what facility, city or even state in which they are held following their apprehension by federal law enforcement. Rodriguez Depo., Vol. 2, pp. 348:22 - 349:21 (Ex. 3, pp. 113-114); 3 The Court also noted that the residents only “reside” in the shelters for 17 days. 717 F. Supp. 2d at 1111. As stated in SWK’s FAC, “[u]naccompanied children live in Southwest Key housing for an average of 27 days.” FAC ¶ 26 (Ex. 2, p. 125). Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 13 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102/029389-0004 9817936.6 a08/10/16 -7- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 Avilez Depo., pp. 49:25 - 50:8 (Ex. 2, pp. 49-50). Indeed, despite its liberal construction, the FHA has never been found to apply to a detention or custodial facility. The courts have expressly held that detention/custodial-type facilities are not “dwellings” within the meaning of the FHA because such facilities are the antithesis of freedom of choice in housing. For example, in the Garcia case (114 F.Supp.2d 1158), the Court held the FHA did not extend to cover a city jail. There, plaintiff was sexually assaulted while incarcerated in defendant’s jail. She sued under the FHA for sexual discrimination in the provision of housing facilities. The Court held that even though the FHA is to be broadly construed to effectuate its inclusive language, detention facilities did not fall within its coverage. Id. at 1160, and n. 1-9. The Court reasoned that even though the jail, on the surface, shared a number of features in common with structures that had been deemed to be dwellings under the FHA, the standard test for determining whether a facility is a residence was not helpful in determining the status of the jail. Specifically, it was irrelevant whether plaintiff intended to return (or remain) in her jail cell, or whether plaintiff was making just a transient visit, because plaintiff had no say in those matters—her stay in the jail was an involuntary confinement, and she faced detention for up to one year. Id. at 1160. Instead, the Court found that the cases finding specific structures to be “dwellings” within the meaning of the FHA were linked by a more applicable common feature—they were primarily “designed or intended for occupancy, as a residence.” Therefore, the Court held that the superficial features the jail had in common with the structures found to be “dwellings” should not obscure the glaring difference between them: the jail was designed as a detention facility, not a “residence.” Id. The Court explained that there was a fundamental distinction between a home and a detention facility, and that the FHA was intended (i) to provide for fair housing Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 14 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102/029389-0004 9817936.6 a08/10/16 -8- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 throughout the United States (42 U.S.C. § 3601), (ii) to integrate residential housing patterns, and (iii) to promote freedom of choice in housing. Id. at 1162. Thus, the element of freedom of choice was paramount: “[T]he primary purpose of the FHA has no application in the prison context. Cf. Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991) (Title VII and [Age Discrimination in Employment Act] do not apply because the primary purpose of prison is incarceration, not employment); McMaster v. State of Minn., 30 F.3d 976, 980 (8th Cir. 1994) (primary purpose of the Fair Labor Standards Act has no application in the prison context); Hale v. State of Ariz., 993 F.2d 1387 (9th Cir. 1993) (same). . . . . The Court finds no indication in the language or the legislative history of the FHA to support the conclusion that Congress intended that Act to protect housing discrimination in detention facilities; especially since such facilities are intended to limit, rather than facilitate, prisoners freedom of movement.” Id., emph. added. Thus, because the FHA was rooted in congressional intent to provide freedom of choice in housing, a purpose antithetical to incarceration, the jail was not a “dwelling” within the meaning of the FHA, and the Act did not apply. Id. at 1163. Using slightly differently terminology but with the same impact as cases discussing freedom of movement, federal courts have also made clear that that a “dwelling” as defined by the FHA only houses “willing participants.” For example, in United States v. University of Nebraska at Kearney, 940 F.Supp.2d 974, 980 (D. Neb. 2013), defendant claimed that student housing was not a dwelling under the FHA because students were required to live there, comparing university housing to “jail, which has been held not to be a dwelling within the meaning of the FHA.” Id. The court disagreed because, unlike a jail or UAC in SWK’s facilities, university students are willing participants: But the Court is not convinced that the comparison [between university housing and jail] is apt . . . the primary way in which student housing furthers the educational mission of a college or university is by providing students with a place to live while they pursue their education. Jail, on the other hand, does not exist so that prisoners have a place to stay while they participate in prison Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 15 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102/029389-0004 9817936.6 a08/10/16 -9- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 educational programs. . . . [J]ail is not designed or intended for occupancy as a residence. . . . And more importantly, . . the FHA’s policy was to provide for fair housing, which depended on freedom of choice—a purpose that has no application in the prison context. . . . While . . . some first-year students are assigned to university housing, they still choose to enroll at [the college], meaning that they have a freedom of choice that is quite unlike going to jail. Id., emph. added; accord, Connecticut Hosp. v. City of New London, 129 F.Supp.2d 123, 133 (D. Conn. 2001) (FHA applied to a rehab facility based on “the uncontradicted evidence . . . that the residents are willing participants in the . . . treatment program. . . .”). Similarly, the Supreme Court of Iowa cited Garcia in Renda v. Iowa Civil Rights Commission, 784 N.W.2d 8 [2010 Iowa Sup. LEXIS] (2010), in holding that a correctional facility was not a “dwelling” for purposes of the Iowa Civil Rights Act. Because Iowa’s Act was intended to eliminate discrimination in housing and promote freedom of choice, those purposes would not be advanced by applying the Act to inmates in the prison context. Although plaintiff prisoner argued her cell was a “dwelling” because (i) she considered her cell to be her residence, (ii) she returned to it each night, and (iii) her stay at the prison was to be for more than a brief period of time, the Court rejected the argument, stating it did not believe those considerations were determinative of whether a prison is a dwelling for purposes of the Act. The Court stated that its determination was strongly influenced by the fact that plaintiff had no choice in her placement at the facility, and “freedom of choice is crucial to the purposes of the Iowa Civil Rights Act and the Fair Housing Act. Each of these Acts was intended to promote freedom of choice in housing and prohibit discrimination.” Id. at 16, emph. added. In the case at bar, UAC also have no choice in their placement at the SWK’s detention facilities, which are designed (i) to strictly regulate where and how UAC may live, and (ii) to limit, rather than facilitate, their freedom of movement. See, Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 16 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102/029389-0004 9817936.6 a08/10/16 -10- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 infra, Section IV. Thus, like the facilities in Garcia and Renda, SWK’s custodial facilities are beyond the scope of the FHA. Additionally, unlike the facilities in University of Nebraska and Connecticut Hospital, UAC are not at SWK’s facilities as willing participants. The fact that such custodial occupants are provided with educational services (along with health care, counseling and other services) during their stay until their legal status in the United States is resolved does not somehow make UAC’s facilities akin to a university or boarding school. Unlike schools—the main purpose of which is to provide education—the “main purpose” of SWK’s facilities is detaining UAC after they are apprehended by federal authorities for the “interim period between a child’s transfer into a UAC program and the child’s release from custody by ORR or removal from the United States by the Department of Homeland Security (DHS).” Cooperative Agreement, p. 1 (Ex. 13, p. 196). IV. SWK’S PROPOSED PROJECT IS NO DIFFERENT THAN A DETENTION FACILITY A. The Project Constitutes a Detention Facility Under the Governing Statutes The care and custody of UAC is governed primarily by two statutory provisions—the Homeland Security Act of 2002 (6 U.S.C. § 279) and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. § 1232)—and a settlement agreement that is binding on pertinent federal agencies— the Flores Agreement. D.B. v. Cardall, 2016 U.S. App. LEXIS 11901, at *20 (4th Cir. 2016); Flores Agreement (Ex. 5). The Homeland Security Act of 2002 (“HSA”) was enacted to improve national security. It abolished the Immigration and Naturalization Services (“INS”), splitting its functions into 3 agencies under the jurisdiction of the DHS. The Act transferred responsibility for the care and custody of UAC to ORR. 6 U.S.C. § 279(a). The HSA makes clear that UAC are in federal custody while awaiting the Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 17 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102/029389-0004 9817936.6 a08/10/16 -11- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 determination of their status by the immigration court.4 The operative federal statute states that UAC are “in federal custody by reason of their immigration status.” 6 U.S.C. § 279(b)(1)(C). Section 279(b)(1)(J) (ii), (iv) provides that ORR shall maintain information on UAC, including “the date on which the child came into federal custody,” and “in any case in which the child is placed in detention or released, an explanation relating to the detention or release.” Sections 279(b)(2)(A) and (B) prohibit ORR from releasing UAC in federal custody on their own recognizance, and require ORR to take steps to ensure that UAC “are likely to appear” for all proceedings in which they are involved. In 2008, the Wilberforce Act was adopted, requiring that unaccompanied children in HHS’s custody shall be promptly placed in the least restrictive setting that is in the best interests of the child. 8 U.S.C. §1232(c)(2). The Wilberforce Act also makes clear that UAC are “in custody” while awaiting the decision of the immigration court. 8 U.S.C. § 1232(b)(1), (3); (c)(2)(A); see also, ORR “Fact Sheet” (Ex. 12, pp. 194-195) (discussing children “in the custody” of ORR while awaiting placement decisions after being apprehended by immigration authorities); Walding v. United States, 955 F.Supp.2d 759, 762-64, 771, n. 12, 780, 790, 793, n. 30, and 804 (W.D. Tex. 2013) (discussing the “secure” facilities operated by private firm under contract with federal government to house UAC “who were detained in the United States by federal agents as undocumented and placed in federal custody pending their immigration court proceedings”—the exact type of facility SWK proposed to locate in the City). In connection with its application for a CUP, at one point SWK misrepresented to City staff that the UAC who would be housed at its facility were not considered to be federal detainees. E.g., Ex. 19, p. 417 (SWK response to question 1). To support its statement, SWK relied on the rights accorded to UAC under the Wilberforce Act 4 Merriam-Webster defines “detention” as “a period of temporary custody prior to deposition by a court.” Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 18 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102/029389-0004 9817936.6 a08/10/16 -12- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 due to their potential vulnerability, including the right to be promptly placed in the least restrictive setting that is in the best interest of the child. 8 U.S.C. § 1232(c)(2)(A). The FAC also alleges several facts in an attempt to establish that the project would be considered to be a “dwelling” under the FHA and FEHA, rather than a custodial detention facility (e.g., the occupants would be assigned their own bedroom, which they would be free to decorate, and they would intend to return to those rooms after leaving the facility because they would have nowhere else to go). FAC ¶ 27 (Ex. 4, p. 125). However, simply because UAC have certain rights—e.g., to be placed in the least restrictive setting—does not mean those minors are not incarcerated in a detention facility. Indeed, the Wilberforce Act specifically states that “the care and custody of all [UAC], including responsibility for their detention . . . . shall be the responsibility of the Secretary of [HHS].” 8 U.S.C. § 1232(b)(1), emph. added; see also B.I.C. v. Asher, 2016 U.S. Dist. LEXIS 32647, *6-*7 (W.D. Wash. 2016). Once it apprehends an unaccompanied child, “any department or agency of the Federal Government that has an unaccompanied alien child in custody shall transfer the custody of the child” to the Secretary of Health and Human Services (“HHS”) within 72 hours of determining his status for placement by the Secretary. 8 U.S.C. § 1232(b)(3). And, in making its placement decisions, the Secretary may consider “risk of flight” (i.e., escape). Id. at § 1232(c)(2)(A). Finally, UAC also have various remedies available to them concerning their detentions that illustrate their condition as detainees, including habeas corpus proceedings5 to test the legality of the detention, parole, and bond. See Cardall, 2016 U.S. App. LEXIS 11091, at *9-*10, n. 4, and *18 (UAC may use habeas proceedings to test the legality of his detention); id. at *30-*31 (8 U.S.C. § 1226(a) confers authority on ORR with respect to UAC to detain aliens during the pendency of 5 Any federal or state prisoner is entitled to file a petition for a writ of habeas corpus for a determination of whether or not that individually is being lawfully detained. See, 28 U.S.C. § 2241 et. seq. Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 19 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102/029389-0004 9817936.6 a08/10/16 -13- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 immigration proceedings); Bunikyte v. Chertoff, 2007 U.S. Dist. LEXIS 26166, 2007 WL 1074070, at *58 (W.D. Tex. 2007); 8 CFR § 212.5(b)(3). B. The Project Constitutes a Detention Facility Under the Flores Settlement Agreement In 1985, a class action was filed challenging the detention of children in the custody of INS.6 Flores v. Meese, 681 F.Supp.665 (C.D. Cal. 1988). As referenced above, a Stipulated Settlement Agreement—the Flores Agreement—was reached in 1996 establishing a nationwide policy for minors in INS custody. (Ex. 5) The Flores Agreement is binding and directly applicable to the detention of minor aliens by the U.S. government. Bunikyte, 2007 U.S. Dist. LEXIS 26166, *8- *9 (court details history of undocumented minors, making clear that they are “in detention” after being apprehended); see also, Special Report: The Measure of a Society: The Treatment of Unaccompanied Refugee and Immigrant Children in the United States, 45 Harvard C.R.-C.L. L. Rev. 247, 250-253 (2010) (UAC are in federal custody while awaiting immigration court review). The Flores Agreement establishes that the project is a detention facility because UAC who would inhabit it are in federal custody. The Agreement states: • It concerns a nationwide policy for the detention and release of UAC taken into the custody of the INS. Flores Agreement, p. 3, first recital (Ex. 5, p. 157); id. at p. 6, ¶ 9, emph. added. • It applies to all “minors who are detained in the legal custody of the INS.’” Id. at p. 4, ¶ 4; id. at p. 7, ¶ 10, emph. added. • It requires INS to treat all minors “in its custody” with respect, and to “place each detained minor in the least restrictive setting appropriate to the minor’s age and special needs.” Id. at p. 7, ¶ 11, emph. added. • “Following arrest, the INS shall hold minors in facilities that are safe and sanitary . . , placing them in an INS detention facility, or other INS- 6 DHS has taken over INS’s obligations under the Agreement. 6 U.S.C. § 279(a). Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 20 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102/029389-0004 9817936.6 a08/10/16 -14- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 contracted facility . . , or a State or county juvenile detention facility.” Id. at pp. 7-8, ¶ 12A, emph. added. • Where “detention of the minor is not required,” INS can release the minor to a parent, legal guardian, etc., but “[b]efore a minor is released from INS custody,” the custodian must sign an agreement ensuring the minor’s presence at all future proceedings before the INS and the immigration court.” Id. at pp. 9-10, ¶¶ 14, 15, emph. added. • Under a section entitled “INS CUSTODY,” the Agreement explains that if the INS does not release a minor, “the minor shall remain in INS legal custody,” and be “placed temporarily in a licensed program until such time as release can be effected . . . or the minor’s immigration proceedings are concluded. . . . All minors placed in such a licensed program remain in the legal custody of the INS. . . .” Id. at p. 12, ¶ 19, emph. added. • ORR may transfer a minor to a more secure facility if the minor “is an escape risk,” i.e., “the minor will attempt to escape from custody.” Id. at pp. 12-14, ¶¶ 21(D), 22, emph. added. C. The Project Constitutes a Detention Facility Under Case Law Case law also illustrates that SWK’s proposed project is a custodial facility. In Cardall, the Court held that ORR has authority to detain UAC under the law, and they are deemed to be “‘in custody’ under the authority of the United States.” 2016 U.S. App. LEXIS 11901, at *18, *20, emph. added. In discussing the Flores Agreement, the Court stated that it sets forth “a general policy favoring less restrictive placements of alien children (rather than more restrictive ones) and their release (rather than detention),” and it contemplates that, “unless detention is necessary to ensure a child’s safety or his appearance in immigration court, the child must be released ‘without unnecessary delay,’ preferably to a parent or legal guardian.” Id. at *21, citing Flores Agreement, ¶ 14. When an alien child is not immediately released, “he ordinarily should ‘be placed temporarily in a licensed Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 21 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102/029389-0004 9817936.6 a08/10/16 -15- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 program until such time as release can be effected . . . or until [his] immigration proceedings are concluded, whichever occurs earlier.’ . . . .” Id. at *21-*22, citing Flores Agreement, ¶ 19, emph. added. The Court also noted that the functions transferred to ORR included “making and implementing ‘placement determinations for all [UAC] who are in federal custody by reason of their immigration status.’” Id. at *23, citing 6 U.S.C. § 279(b)(1)(A)-(E). Here, UAC would be placed in SWK’s facility for detention while awaiting their release or deportation. See id. at *24 (“responsibility for [UAC’s] detention . . . rests with the DHHS Secretary . . . Any other federal agency holding a UAC is duty-bound to ‘transfer the custody of such child’ to [ORR]”) Similarly, in Walding, plaintiff minors born in Central America were detained in the United States by federal agents as undocumented and placed in federal custody pending their immigration court proceedings. 955 F.Supp.2d at 762. ORR placed plaintiffs in “shelter care facilities” under contract with the United States—identical to the facility proposed by SWK here. Id. at 764. Plaintiffs allegedly suffered abuse at the facility and claimed defendants were negligent in carrying out their legal duties to ensure proper treatment of minors “detained at the [facility].” Id. at 763, emph. added. Throughout the opinion, the Court recognized that plaintiffs were in custody and were being detained by the government, even though the subject facility was not a secure facility, but rather the least restrictive setting possible. Id. at 767; see also id. at 764, 771, 780-81, 790, 792. The Court also noted that several residents had “escaped” from the facility, another indication that they were being detained. Id. at 768. Walding makes clear that the very purpose of vesting responsibility in ORR— with UAC-specific expertise and authority—was to create at the federal level, a system of custody and detention designed for undocumented children, rather than adults. Thus, the governing statutes and relevant case law make clear that UAC are detained in the custody of the federal government from their arrest until either legal Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 22 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102/029389-0004 9817936.6 a08/10/16 -16- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 status or repatriation. Cardall, 2016 U.S. App. LEXIS 11091, at *37. D. There is No Dispute The Project Constitutes a Detention Facility Finally, contrary to its early characterization of the UAC who would be housed at its Escondido facility as “not detainees,” SWK has since admitted that the UAC would be detainees, and have no choice with respect to where and how they are detained while in the federal government’s custody: • During a public hearing on SWK’s CUP application, SWK’s representative admitted (i) that UAC have been “apprehended,” (ii) that they would not be free to leave SWK’s facility once assigned thereto, and (iii) that they are, in essence, “detained.” Transcript of June 24, 2014 Planning Commission Hearing (Ex. 20, pp. 425-426); see also, Rios Depo., p. 42:14 - 43:19; 44:9- 18 (Ex. 1, pp. 25-27). • The purpose of SWK’ facilities is to detain children for the “interim period between a child’s transfer into a UAC program and the child’s release from custody by ORR or removal from the United States by the Department of Homeland Security (DHS) . . . The UAC shelter care network has developed a service delivery system structure that is able to serve UAC while they are in Federal custody, as well as ensure the UAC do not run away and are available to attend their immigration proceedings . . .” Cooperative Agreement, pp. 1-2 (Ex. 13, pp. 196-197); See also, Rios Depo 46:15 - 47:6 (Ex. 1, pp. 29-30). • After their apprehension by federal law enforcement, UAC cannot request to be placed in any specific facility, nor in a particular city, region or state. Rodriguez Depo., Vol. 2, pp. 348:22 - 349:21 (Ex. 3, pp. 113-114); Avilez Depo., pp. 49:25 - 50:8 (Ex. 2, pp. 49-50); See also, Ismael Avilez Email dated April 10, 2014 (Ex. 18, p. 413) (placement in SWK’s facilities is not voluntary); Rodriguez Depo., Vol. 2, p. 346:17 - 348:21 (Ex. 3, pp. 111- 113). Only ORR decides where UAC are placed, and UAC cannot request Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 23 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102/029389-0004 9817936.6 a08/10/16 -17- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 transfers. Rodriguez Depo., Vol. 2, pp. 348:10-21, 349:23-350:7 (Ex. 3, pp. 113-114); Rios Depo., pp. 34:10-21, 42:14 - 43:19, 44:19 - 45:2 (Ex. 1, pp. 21, 25-28); Avilez, p. 57:4-10 (Ex. 2, p. 52). • All direct-care staff in SWK’s programs must be in full compliance with Prison Rape Enforcement Act (“PREA”) policies and procedures at all times. SWK’s Operations Manual for Unaccompanied Minors Program, p. 14 (Ex. 14, p. 220); Rios Depo. p. 69:9-25 (Ex. 1, p. 33); see also, UM SWK Written Policy and Procedure PREA Manual (Ex. 15) • All of SWK’s proposed facilities in the City were to be completely surrounded by fencing and include a surveillance system. Avilez Depo., 120:18 - 121:9 (Ex. 2, p. 72-73); see also, Ex. 17, p. 412 (Section F). • The police and federal law enforcement must be informed if UAC escape. Avilez Depo., pp. 42:22-25, 43:1-19 (Ex. 2, pp. 45-46); Rodriguez Depo., Vol. 1, pp. 191:7-22 (Ex. 3, p. 96); Rios Depo 40:25 - 41:9 (Ex. 1, pp. 23- 24); Unaccompanied Minors Federal Programs Youth Care Services Manual, “Protocol For Reporting Absconded Clients” (Ex. 16, p. 384). If a UAC escapes, the UAC may be transferred to higher security facility. Avilez Depo., pp. 44:17-45:3 (Ex. 2, pp. 47-48); see also, Rios Depo 40:25 - 41:9 (Ex. 1, pp. 24-25). • SWK’s policies include a section entitled “Runaways Prevention & Risk Assessment”, which identifies factors that could make UAC high runaway risks. Unaccompanied Minors Federal Programs Youth Care Services Manual (Ex. 15, p. 399). UAC who are considered to be high risk are subject to extra security precautions. Avilez Depo. pp. 88:25 - 89:7, 93:18 - 94:15 (Ex. 2, pp. 65-66, 70-71). • Head counts are conducted regularly to ensure UAC are in the assigned bed or building. SWK Unaccompanied Minors Federal Programs Youth Care Services Manual, pp. 3-4 (Ex. 16, pp. 312-313). Room checks are Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 24 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102/029389-0004 9817936.6 a08/10/16 -18- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 conducted at least every 15 minutes at night. Id. at pp. 68-69. • UAC are constantly supervised, and are not allowed to leave the facility without SWK employee(s). Rios Depo., p. 39:6-22 (Ex. 1, p. 22); Avilez Depo., pp. 31:15-19 (Ex. 2, pp. 40). When off-site, UAC are not permitted to interact with individuals not affiliated with SWK. Rios Depo, pp. 47:25 - 48:15 (Ex. 1, pp. 30-31); Avilez Depo., pp. 36:22-25, 37:1-6; 39:8-25 (Ex. 2, pp. 42-44). • UAC are subject to a detailed list of prohibited actions, including being forbidden from returning to their bedrooms during the day, closing their bedroom doors, keeping “pencils, pens markers, rulers, foods, unfinished bracelets, beads/yarn, lace, prizes, games, arts & crafts, shaving razors, knitting/sewing needles, tweezers, scissors, nail clippers, puzzles, jewelry, hangers, ties, belts, paper clips, staples, nails . . .” in their bedrooms, keeping water cups in bedrooms, keep any cards or games in lockers, or to operate any electronics. Unaccompanied Minors Federal Programs Youth Care Services Manual, pp. 7-8 (Ex. 16, pp. 316-317). • Upon intake, UAC’s possessions are inventoried, and various UAC possessions are kept in SWK’s position—out of the possession of the UAC—until discharge. Avilez Depo., pp. 85:14 - 86:4 (Ex. 2, pp. 62-63); Unaccompanied Minors Federal Programs Youth Care Services Manual, pp. 13, 27 (Ex. 16, pp. 322, 336). • SWK employees are permitted to conduct unlimited searches of UAC, their bedrooms and their lockers. Unaccompanied Minors Federal Programs Youth Care Services Manual, pp. 76-77 (Ex. 16, pp. 385-386). • UAC are assigned a specific room and a roommate, without any choice, and all furnishing is provided by Southwest Key. Avilez Depo., p. 51:16- 24 (Ex. 2, p. 51); Rios Depo, 158:23 - 159:12 (Ex. 1, pp. 34-35). • UAC have highly structured regimens to follow, with strict, mandatory Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 25 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102/029389-0004 9817936.6 a08/10/16 -19- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 daily schedules. Avilez Depo., 37:25 - 38:11, 51:5-24, 83:12 - 84:14 (Ex. 2, pp. 43-44, 51, 60-61); Unaccompanied Minors Federal Programs Youth Care Services Manual (Ex. 16, p. 348); Rios Depo., pp. 30:7-19, 33:1-23, 47:10-24, 158:23 - 159:12 (Ex. 1, pp. 19-20, 30, 34-35). • Federal government officials visit SWK’s UAC facilities at least several times a week. Rodriguez Depo., Vol. 1, pp. 193:12-18 (Ex. 3, p. 97). The foregoing admissions confirm the legal fact already demonstrated by the terms of the Flores Settlement and case law discussing UAC programs—in the context of the FHA and FEHA, UAC facilities are no different than detention facilities because UAC are involuntarily assigned to facilities where they are detained awaiting placement decisions and/or resolution of their legal status. Accordingly, SWK’s claims must be rejected as a matter of law. Garcia, 114 F. Supp. 2d at 1162. V. THE FEHA DOES NOT APPLY TO SWK’s UAC FACILITIES The FEHA, Government Code sections 12900 - 12996, is part of California’s statutory scheme to ensure fair employment and housing practices. It is unlawful under FEHA discriminate in “housing accommodations” because of race or national origin. The FEHA defines a “housing accommodation” as “any building, structure, or portion thereof that is occupied as, or intended for occupancy as, a residence by one or more families.” Gov. Code § 12927(d), emph. added. While California courts have not yet had the opportunity to address what type of housing is subject to FEHA, California courts rely on federal housing discrimination laws to interpret analogous provisions of the FEHA. Angstman v. Carlsbad Seapoint Resort II, L.P., 2011 U.S. Dist. LEXIS 54788, at *9-*10 (S.D. CA 2011); Walker v. City of Lakewood, 272 F.3d 1114, 1131, n. 8 (9th Cir. 2001) [same standards apply to FHA and FEHA]; Sada v. Robert F. Kennedy Med. Ctr., 56 Cal.App.4th 138, 150, n. 5 (Cal. App. 2d Dist. 1997). Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 26 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102/029389-0004 9817936.6 a08/10/16 -20- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 According to the Assembly Committee on Judiciary “California law was required to achieve substantial equivalence with the federal law by January 13, 1992, in order to receive federal funding to enforce federal housing discrimination laws.” California Bill Analysis, A.B. 2244 Assem., 4/28/1993 (Ex. 10, p. 183). Based on this requirement, the 1992 amendments to FEHA included a rewritten definition of “housing accommodation” to more closely track FHA. See, Deering’s California Annotated Code, Gov. Code, § 12927 (Ex. 11, pp. 190-191). Indeed, FEHA’s definition of “housing accommodation” (cited above) is virtually identical the FHA’s definition of “dwelling”: “[A]ny building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof.” 42 U.S.C. § 3602(b). Thus, like a “dwelling” under the FHA, a “housing accommodation” under FEHA does not include SWK’s UAC facility, and summary judgment should be entered for the City. VI. THE CITY’S PURPORTED ACTIONS DID NOT MAKE HOUSING UNAVAILABLE TO A PROTECTED CLASS Separate and apart from the fact that SWK’s proposed UAC facility does not qualify as a “dwelling” or “housing accommodation” under the meaning of the FHA and FEHA (respectively), the City’s action does not “make housing unavailable” for a protected class because by law, SWK’s UAC facilities are not open to anyone other than UAC—i.e., undocumented immigrants under age 18. Avilez Depo., p. 31:9-14 (Ex. 2, p. 41); Rios Depo., p. 27:3-25 (Ex. 1, p. 18). SWK’s FAC alleges that the City violated the FHA on the sole basis that City’s conduct “made housing unavailable on the basis of race, color, or national origin, or some or all of these factors” and, similarly, violated the FEHA because the City purportedly “made unavailable or denied a dwelling, housing accommodation, or housing opportunity Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 27 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102/029389-0004 9817936.6 a08/10/16 -21- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 based on discrimination because of race, color, national origin, ancestry, or some or all of these factors.” FAC ¶¶ 127, 131 (Ex. 4, p. 150). Like most challenges to zoning or other public agency actions, this claim is presumably brought under 42 U.S.C. § 3604(a), “which makes it which makes it illegal ‘[t]o refuse to sell or rent . . . or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.’ “ Edwards v. Media Borough Council, 430 F.Supp.2d 445, 451, n. 14 (E.D. Pa. 2006). The FHA only applies “actions by individuals or governmental units which directly affect the availability of housing to minorities.” South-Suburban Housing Center v. Greater South Suburban Bd. of Realtors, 935 F.2d 868, 882 (7th Cir. Ill. 1991); Noble Shaheed Allah El v. Avesta Homes, LLC, 520 Fed. Appx. 806, 808 (11th Cir. 2013) (“in order to prevail on a claim under the FHA, plaintiffs must demonstrate unequal treatment on the basis of national origin that affects the availability of housing”). The same standard applies to SWK’s FEHA claims. Walker, 272 F.3d at 1131, n. 8. The City’s actions have no impact on any legal U.S. residents, regardless of race, color or national origin, but to the contrary, only (arguably) on a specific, unprotected class—UACs. Any alleged City action does not even affect undocumented immigrants generally, but only minors apprehended without any adult family members. This has no direct impact on the availability of housing for classes protected by FHA. See Espinoza v. Farah Mfg. Co., 414 U.S. 86, 95 (1973) (“Congress did not intend the term ‘national origin’ to embrace citizenship requirements.”) (superseded by statute on other grounds); Plyler v. Doe, 457 U.S. 202, 223 (1982) (“[u]ndocumented aliens cannot be treated as a suspect class because their presence in this country in violation of federal law is not a ‘constitutional irrelevancy.’”) Keller v. City of Fremont, 719 F.3d 931, 949 (8th Cir. 2013) (“a state law or local ordinance that restricts or disadvantages aliens not lawfully present in the country has no such historic ties to the purposes of the FHA”) (disapproved by Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 28 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102/029389-0004 9817936.6 a08/10/16 -22- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 Ninth Circuit Court of Appeal on alternative grounds in Valle Del Sol Inc. v. Whiting, 732 F.3d 1006, 1026, n. 18 (2013)). Moreover, housing was not “made unavailable” even to UAC by virtue of the City’s action, because there was adequate capacity between SWK and its competitors’ existing facilities to serve all UAC during the relevant time period. Rodriguez Depo., Vol. 1, pp. 68:22 - 69:24, 70:8 - 71:6 (Ex. 3, pp. 87-90). ORR forced SWK to decrease its system-wide capacity by 567 beds in its Fiscal Year 2015, which commenced on October 1, 2014, two weeks before the City Council’s October 15, 2016 denial of the CUP. Id. at pp. 70:8 - 71:6. SWK did not add any new facilities for the entire Fiscal Year 2015 due to this lack of demand. Id. at p. 93:2-7. Existing facilities operated by SWK (and others) were able to serve all UAC in need because UAC can be housed anywhere in the country, regardless of where they are apprehended or where the UAC will eventually be placed. Id. at pp. 76:19-80:8, 78:24-79:10, 129:21 - 130:4, 349:4 - 350:7 Most UAC discharges occur via air travel, further demonstrating that the location of UACs’ detention is largely irrelevant. Id. at pp. 61:13-16, 63:22 - 64:10. Accordingly, even if all SWK’s allegations are taken as true, the City’s actions did not “directly affect the availability of housing,” for any protected class generally, or UAC specifically. South-Suburban, 935 F.2d at 882. VII. SWK HAS NO STANDING TO RAISE THIRD-PARTY EQUAL PROTECTION CLAIMS SWK alleges that the City’s denial of the permit for its proposed facility “constituted unconstitutional discrimination against unaccompanied children on the basis of race, color, national origin, alienage, or immigration status, or some or all of these factors in violation of 42 U.S.C. § 1983 and the Equal Protection Clause of the [U.S.] Constitution.” FAC ¶ 136 (Ex. 4, p. 151), emph. added. To bring a claim for a violation of the Equal Protection Clause under 42 U.S.C. § 1983, however, SWK must establish that the City violated SWK’s Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 29 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102/029389-0004 9817936.6 a08/10/16 -23- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 federally protected right to equal protection under the law. See West v. Atkins, 487 U.S. 42, 48 (1988). Indeed, it is hornbook law that “[s]ection 1983 rights are ‘personal.’ This means that the § 1983 plaintiff may assert a violation of his or her own federally protected rights, but not the violation of someone else’s federal rights.” Martin A. Schwartz, 1 Section 1983 Litigation: Claims and Defenses (4th ed.) at § 3.01; see, e.g., Kowalski v. Tesmer, 543 U.S. 125, 129–34 (2004) (attorneys lacked standing to assert § 1983 claims on behalf of future indigent clients); Fleck & Associates, Inc. v. Phoenix, City of, an Arizona Mun. Corp., 471 F.3d 1100, 1103–06 (9th Cir. 2006) (corporation operating gay man’s social club lacked standing to assert constitutional “right to privacy” claims on behalf of its clientele); Zivojinovich v. Ritz Carlton Hotel Co., LLC, 445 F. Supp. 2d 1337, 1343 (M.D. Fla. 2006) (management companies lacked standing to assert § 1983 claim seeking damages for “loss of business revenue” caused by violations of their client’s constitutional rights). Accordingly, SWK lacks standing to bring its Third Claim for the purported violation of the equal protection rights of UAC. San Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 470 (9th Cir. 1998), is directly on point. There, plaintiff hotel corporation sued the city after it denied a rehabilitation and acquisition loan necessary for the sale of plaintiff’s hotel to a not- for-profit developer that built housing for the mentally disabled. The Ninth Circuit’s held that although plaintiff had standing to bring a Fair Housing Act claim, it lacked standing to bring an Equal Protection challenge based on the allegedly discriminatory housing practice affecting third parties. In reaching its holding, the Court applied the rule against third-party standing, holding that plaintiff could not bring a claim under § 1983 for discrimination against the rights of the mentally ill. Id., 479. Plaintiff had “no standing to assert that the rights of the mentally ill ha[d] been violated by the City,” and with “no alleged violation of [its] own rights and no standing to assert the rights of others,” the hotel company had “no claim under § 1983.” Id. San Pedro Hotel controls here. The Complaint contains no allegations as to Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 30 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102/029389-0004 9817936.6 a08/10/16 -24- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 how SWK has suffered a constitutional injury based on the alleged “discrimination against unaccompanied children.” Complaint, ¶ 136. Nor could it—SWK is not a member of a protected class; SWK has not suffered an injury to an interest protected by the Equal Protection Clause; and SWK cannot tether such a claim to any harm allegedly suffered by UAC without violating the rule against third-party standing. That the Complaint makes no allegations for how SWK was “deprived of any constitutional” right to equal protection is telling. Coupling that deficiency with SWK’s lack of standing to assert the rights of others establishes that its Equal Protection Claim is not viable. VIII. SWK HAS NO CLAIM UNDER THE SUPREMACY CLAUSE SWK’s Supremacy Clause claim is similarly inadequate. As a threshold matter, the Supremacy Clause “is not a source of any federal rights” and “of its own force, does not create rights enforceable under [section] 1983.” Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 107 (1989). Alleging that the City “violated the Supremacy Clause” is thus wholly insufficient. FAC ¶ 143 (Ex. 4, p. 152). The Complaint also makes no attempt to identify a specific federal statute or policy that allegedly preempts the City’s decision to deny a conditional-use permit. Instead, it uses the buzz word “immigration,” but fails to allege how the City’s land- use decision conflicts with a specific federal law. The reason for this deficiency is simple: The City’s decision did not implicate any federal immigration policy. As the Supreme Court has held, “[t]he power of local governments to zone and control land use is undoubtedly broad. . . . [T]he court generally have emphasized the breadth of municipal power to control land use. . . .” Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68 (1981); see also FERC v. Mississippi, 456 U.S. 742, 767, n.30 (1982) (the “regulation of land use is perhaps the quintessential state activity”). At best, the Complaint’s fourth cause of action merely duplicates its’s fair- housing law claims by alleging that a violation of the Fair Housing Act would, by Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 31 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102/029389-0004 9817936.6 a08/10/16 -25- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 necessity, be preempted by federal law, namely the Fair Housing Act. Compare FAC, ¶¶ 139-145, with ¶¶ 126-134 (Ex. 4). At worst, it is frivolous, as the FAC makes no attempt to establish how SWK has standing to sue on behalf of the federal government or unaccompanied children based on a local land-use decision. See Izzo v. Borough of River Edge, 843 F.2d 765, 769 (3d Cir. 1988) (“Land use policy customarily has been considered a feature of local government and an area in which the tenets of federalism are particularly strong.”). It bears noting that the U.S. Supreme Court has made clear that local government has significant discretion over land use matters. See, e.g., Village of Belle Terre v. Boraas, 416 U.S. 1, 8 (1974); Construction Industry Asso. v. Petaluma, 522 F.2d 897, 906 (9th Cir. 1975). IX. CONCLUSION For the reasons set forth above, the City respectfully submits that summary judgment should be granted in City’s favor because (i) the FHA and FEHA do not apply to SWK’s custodial UAC facilities because such facilities are not “dwellings”, “residences” or “housing accommodations” involving “willing participants”; (ii) alternatively, SWK also failed to state a claim under either the FHA and FEHA because the City’s alleged actions did not make housing unavailable to a protected class; (iii) SWK does not having standing to bring an Equal Protection claim on behalf of UAC; and (iv) the Supremacy Clause is not a source of any enforceable federal rights, and the purported cause of action brought by SWK under the same fails to state any cognizable claim. Dated: August 10, 2016 RUTAN & TUCKER, LLP John A. Ramirez Michael D. Rubin Alan B. Fenstermacher By: /s/ Alan B. Fenstermacher Alan B. Fenstermacher Attorneys for Defendant CITY OF ESCONDIDO Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 32 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102/029389-0004 9817936.6 a08/10/16 -1- CITY'S P&A’S IN SUPPORT OF MSJ/PARTIAL MSJ 15-cv-01115 CERTIFICATE OF SERVICE I hereby certify that on August 10, 2016, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF System which will send notification of such filing to the email addresses denoted on the Electronic Mail Notice List, and I hereby certify that pursuant to agreement from counsel for plaintiff, I have emailed the foregoing to counsel for plaintiff. Executed August 10, 2016. s/ Alan B. Fenstermacher ALAN B. FENSTERMACHER RUTAN & TUCKER, LLP 611 Anton Boulevard, Suite 1400 Costa Mesa, California 92626-1931 Telephone: 714-641-5100 afenstermacher@rutan.com Case 3:15-cv-01115-H-BLM Document 56-1 Filed 08/10/16 Page 33 of 33