1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BEAR RIVER BAND OF ROHNERVILLE Case No. 23-cv-01809-HSG RANCHERIA, et al., 8 ORDER GRANTING IN PART AND Plaintiffs, DENYING IN PART DEFENDANTS’ 9 MOTIONS TO DISMISS AND v. GRANTING DEFENDANTS’ 10 REQUESTS FOR JUDICIAL NOTICE CALIFORNIA DEPARTMENT OF 11 SOCIAL SERVICES, et al., Re: Dkt. Nos. 32, 38
12 Defendants.
13 14 Pending before the Court are Defendants’ motions to dismiss and requests for judicial 15 notice. Dkt. Nos. 32, 38. For the reasons described below, the Court GRANTS IN PART and 16 DENIES IN PART Defendants’ motions, and GRANTS Defendants’ requests for judicial notice. 17 I. BACKGROUND 18 On March 13, 2023, Plaintiffs Madison Fisher and Bear River Band of Rohnerville 19 Rancheria Tribe (“the Tribe”) filed a lawsuit in Humboldt County Superior Court against the 20 California Department of Social Services (“CDSS”), CDSS Director Kim Johnson, Humboldt 21 County Department of Health and Human Services (“HDHHS”), and HDHHS Director Connie 22 Beck (collectively, “Defendants”). Dkt. No. 1-1. One month later, CDSS removed the case to 23 federal court, asserting federal question jurisdiction, see Dkt. No. 1, and on August 14, 2023, 24 Plaintiffs filed a First Amended Complaint (“FAC”). Dkt. No. 23. 25 Plaintiffs’ claims arise out of Defendants’ administration of the extended foster care 26 program as applied to Native youth in the Tribe. As relevant here, the Federal Foster Care 27 Program helps to provide out-of-home care for children until they are safely returned home, placed 1 FAC ¶ 17. It also entitles states, territories, and tribes to claim partial federal reimbursement for 2 the cost of providing this care to children who meet federal eligibility criteria. Id. A child’s 3 eligibility for foster care is determined by the criteria established pursuant to the Aid to Families 4 with Dependent Children program (“AFDC”). Although the Temporary Assistance for Needy 5 Families (“TANF”) welfare program eventually replaced AFDC, eligibility for the Federal Foster 6 Care Program is still linked to the eligibility requirements of the AFDC (i.e., “AFDC linkage”). 7 Id. ¶ 18. The provision of partial federal reimbursement for foster care under Title IV-E of the 8 Social Security Act is contingent on an AFDC linkage being made, which requires an initial 9 income and resource evaluation for all participants. Id. ¶ 19, 23. Determinations of the child’s 10 continued eligibility for federal Title IV-E foster care benefits are conducted periodically, but the 11 AFDC linkage requirement is only required once per foster care episode. So long as the youth 12 remains in foster care, no redeterminations of the AFDC linkage are required to demonstrate 13 federal Title IV-E eligibility. FAC ¶ 24. 14 This case concerns the redetermination of AFDC linkages for Native youth over 18 15 continuing in the foster care system. As part of the Fostering Connections to Success and 16 Increasing Adoptions Act of 2008 (P.L. 110-351), Congress amended the Title IV-E program to 17 provide states and tribes an option to extend eligibility for federal foster care to youth between the 18 ages of 18 and 21 (i.e., nonminor dependents (“NMDs”)). FAC ¶ 25. California opted into the 19 extended foster care program in 2010. Id. ¶ 28. That same year, the U.S. Department of Health 20 and Human Services announced that redeterminations of AFDC linkage would not be required for 21 NMDs who continued in extended foster care upon reaching the age of 18. Id. ¶ 26. In other 22 words, “[i]f a nonminor dependent was receiving federal or nonfederal foster care prior to age 18 23 and continued to be in foster care after his/her 18th birthday, the nonminor dependent continues to 24 be eligible for federal or nonfederal foster care without a new eligibility determination.” Id. ¶ 29. 25 Pursuant to this federal guidance, CDSS issued All County Letter (“ACL”) 11-10 on 26 January 28, 2011 confirming that annual redeterminations of AFDC linkage were not required for 27 nonminors who continued in foster care upon reaching the age of 18. Id. ¶ 30. In response to 1 2013, providing guidance on the applicability of the extended foster care laws for Native youth. 2 See Dkt. No. 33-1 at 4. Plaintiffs take issue with one sentence in the seven-page ACL: “For 3 purposes of maintaining Title IV-E funding, Indian youth must still meet the financial Aid to 4 Families with Dependent Children-Foster Care (AFDC-FC) eligibility requirements as all other 5 NMDs to receive the AFDC-FC payment.” FAC ¶ 32 (emphasis added). Plaintiffs allege that 6 because this guidance did not distinguish between the requirements for youth continuing in foster 7 care as opposed to those re-entering foster care, it implied that all Native NMDs were subject to 8 redeterminations. As a result, Plaintiffs maintain that “CDSS, Humboldt County, and Humboldt 9 DHHS regularly conducted redeterminations of eligibility on non-minor youth of the Tribe 10 entering the 18 and Over Program even though they had never left the foster care program.” Id. ¶ 11 33. This practice allegedly had a “significant and disproportionate impact on American Indian 12 youth” because Defendants allegedly considered the “tribally based financial distributions” that 13 could become available to some Indian youth upon reaching the age of majority to be a 14 disqualifying resource when conducting redeterminations. Id. ¶ 36. Plaintiffs further allege that 15 Humboldt County’s policy or custom was to “dissuade Tribal youth from applying for the 18 and 16 Over Program in the first place based on the County’s misguided belief that all American Indian 17 youth receive tribal distributions and the incorrect conclusion that those individuals would need to 18 undergo eligibility redeterminations.” Id. This policy or custom allegedly deprived Tribal youth 19 of benefits that they would have been entitled to receive through extended foster care absent 20 CDSS’s improper practice of conducting redeterminations and dissuading youth from applying. 21 In June 2021, the California Tribal Families Coalition send a letter to CDSS warning that 22 ACL 13-91 had “led county agencies to overly monitor tribal youth in extended foster [care] for 23 eligibility,” and asked CDSS to rescind and correct the letter and redress any wrongful loss of 24 benefits that Indian youth might have experienced. FAC ¶ 40. On February 15, 2022, CDSS 25 issued ACL 22-16 “remind[ing] foster care placing agencies of the eligibility and redetermination 26 rules for federal foster care from ACL 11-10,” and reiterating that “[f]or youth who turn 18 while 27 under an order for foster care placement, no redetermination shall be conducted solely due to the 1 13-91, and because Defendants have undertaken only “nominal efforts” to re-enroll eligible Indian 2 youth and have taken “no steps” to “redress the harm suffered by American Indian youth who 3 have unlawfully lost years of benefits to which they were entitled,” the harm has not abated. Id. ¶¶ 4 45–47. Moreover, Plaintiffs allege that the County “has continued its policy or custom of finding 5 non-minor American Indian youth . . . ineligible for the 18 and Over Program as a result of tribal 6 ‘per capita distributions.’” Id. ¶ 48. They allege that Plaintiff Madison Fisher was one such 7 youth. According to Plaintiffs, Fisher applied for extended foster care benefits when she turned 8 18, and was originally approved. However, a few months after moving into a house arranged by 9 Humboldt County, the County “changed its mind unilaterally and stripped Plaintiff Fisher of her 10 eligibility for the 18 and Over Program due to her receipt of tribal distributions, which was 11 disclosed at the time of application.” Id. ¶ 57. Plaintiffs allege that the County’s wrongful denial 12 of benefits has resulted in harm to the Tribe as well, since it has “stepped in to support those 13 members” through housing, direct monetary payments, and other support. Id. ¶ 61. 14 Based on this conduct, Plaintiffs allege violations of California Government Code section 15 11135, the Due Process Clause of the Fourteenth Amendment (42 U.S.C. § 1983), and the 16 California Administrative Procedure Act (Gov. Code § 11342.600). FAC ¶¶ 64–84. They also 17 request declaratory relief and a writ of mandate. Id. ¶¶ 85–95. Defendants moved to dismiss 18 Plaintiffs’ complaint. Dkt. Nos. 32 (“County MTD”), 38 (“State MTD”). The matter came before 19 the Court for a hearing on December 1, 2023, and is now fully briefed. See Dkt. Nos. 40 (“Opp.”), 20 41 (“County Reply”), 42 (“State Reply”), 51 (hearing minutes). 21 II. LEGAL STANDARD 22 A. Motion to Dismiss Pursuant to Rule 12(b)(1) 23 Federal Rule of Civil Procedure Rule 12(b)(1) allows a party to move to dismiss for lack of 24 subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). The issue of Article III standing is 25 jurisdictional and is therefore “properly raised in a motion to dismiss under Federal Rule of Civil 26 Procedure 12(b)(1).” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). To meet his burden of 27 establishing standing, a plaintiff must show he has “(1) suffered an injury in fact, (2) that is fairly 1 favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016), as revised (May 2 24, 2016). And where a plaintiff seeks injunctive relief, he must also demonstrate a “real and 3 immediate threat of repeated injury.” Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 946 4 (9th Cir. 2011). 5 B. Motion to Dismiss Pursuant to Rule 12(b)(6) 6 Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain 7 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 8 defendant may move to dismiss a complaint for failing to state a claim upon which relief can be 9 granted under Rule 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the 10 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” 11 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 12 12(b)(6) motion, a plaintiff need only plead “enough facts to state a claim to relief that is plausible 13 on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible 14 when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that 15 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 16 In reviewing the plausibility of a complaint, courts “accept factual allegations in the 17 complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” 18 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nevertheless, 19 courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of 20 fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 21 2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). 22 III. DISCUSSION 23 C. Requests for Judicial Notice 24 In Khoja v. Orexigen Therapeutics, the Ninth Circuit clarified the judicial notice rule and 25 incorporation by reference doctrine. See 899 F.3d 988 (9th Cir. 2018). Under Federal Rule of 26 Evidence 201, a court may take judicial notice of a fact “not subject to reasonable dispute because 27 it … can be accurately and readily determined from sources whose accuracy cannot reasonably be 1 public record,” but “cannot take judicial notice of disputed facts contained in such public records.” 2 Khoja, 899 F.3d at 999 (citation and quotations omitted). The Ninth Circuit has clarified that if a 3 court takes judicial notice of a document, it must specify what facts it judicially noticed from the 4 document. Id. at 999. Further, “[j]ust because the document itself is susceptible to judicial notice 5 does not mean that every assertion of fact within that document is judicially noticeable for its 6 truth.” Id. As an example, the Ninth Circuit held that for a transcript of a conference call, the 7 court may take judicial notice of the fact that there was a conference call on the specified date, but 8 may not take judicial notice of a fact mentioned in the transcript, because the substance “is subject 9 to varying interpretations, and there is a reasonable dispute as to what the [document] establishes.” 10 Id. at 999–1000. 11 Separately, the incorporation by reference doctrine is a judicially created doctrine that 12 allows a court to consider certain documents as though they were part of the complaint itself. Id. 13 at 1002. This is to prevent plaintiffs from cherry-picking certain portions of documents that 14 support their claims, while omitting portions that weaken their claims. Id. Incorporation by 15 reference is appropriate “if the plaintiff refers extensively to the document or the document forms 16 the basis of plaintiff’s claim.” Khoja, 899 F.3d at 1002. However, “the mere mention of the 17 existence of a document is insufficient to incorporate the contents” of a document. Id. at 1002. 18 And while a court “may assume [an incorporated document’s] contents are true for purposes of a 19 motion to dismiss … it is improper to assume the truth of an incorporated document if such 20 assumptions only serve to dispute facts stated in a well-pleaded complaint.” Id. 21 Both the County and State Defendants move the Court to take judicial notice of three 22 documents: ACL 11-10, ACL 13-91, and ACL 22-16.1 See Dkt. Nos. 33 (County RJN), 34-1 23 (State RJN). Because these materials constitute official government documents “the accuracy of 24 which cannot reasonably be questioned,” and because they also figure extensively in Plaintiffs’ 25 complaint, the Court GRANTS Defendants’ requests, finding consideration of the three All 26
27 1 Though the County’s request for judicial notice identifies these three documents as the 1 County Letters appropriate under either the judicial notice or incorporation by reference doctrines. 2 D. Standing 3 Both Defendants contend that the Tribe lacks standing, and cannot bring claims under a 4 parens patriae theory because Plaintiff has not pled that a “sufficiently substantial” segment of its 5 members have been affected by Defendants’ improper benefit denials. County MTD at 20–21; 6 State MTD at 20–21.2 Plaintiffs argue that the while the Tribe can maintain the claims in parents 7 patriae, it is sufficient that Plaintiff Fisher has standing for all types of relief sought at this point in 8 the litigation. Opp. at 8–11. The Court agrees with Plaintiffs that the Tribe does not need to 9 demonstrate standing to pursue damages separately and in addition to Plaintiff Fisher, but 10 concludes that Plaintiffs lack standing to pursue injunctive relief on the facts as pled. 11 The Supreme Court has instructed that where there are multiple plaintiffs in a suit, “[a]t 12 least one plaintiff must have standing to seek each form of relief requested in the complaint.” 13 Town of Chester, N.Y. v. Laroe Estates, Inc., 581 U.S. 433 (2017). The principle – frequently 14 reiterated by the Ninth Circuit – obviates the need to analyze whether each named plaintiff has 15 standing for each form of requested relief if at least one plaintiff can properly proceed on each. 16 See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264 (1977) (“Because of 17 the presence of this plaintiff [with standing], we need not consider whether the other individual 18 and corporate plaintiffs have standing to maintain the suit.”); Leonard v. Clark, 12 F.3d 885, 888 19 (9th Cir. 1993) (“The general rule applicable to federal court suits with multiple plaintiffs is that 20 once the court determines that one of the plaintiffs has standing, it need not decide the standing of 21 the others.”); Poder in Action v. City of Phoenix, 506 F. Supp. 3d 725, 728 (D. Ariz. 2020) (“The 22 Ninth Circuit has repeatedly stated that it is unnecessary to address the standing of each plaintiff in 23 a multi-plaintiff case, at least where all plaintiffs seek the same form of relief, so long as one of 24 the plaintiffs has standing.”). Defendants’ authority is not to the contrary.3 25 2 For ease of reference, the Court refers to the PDF pages rather than the document’s internal 26 pagination unless otherwise noted. 3 The State Defendants cite Townley v. Miller for the proposition that the rule “applies only in 27 cases where the plaintiffs seek injunctive relief.” 722 F.3d 1128 (9th Cir. 2013). It is true that in 1 Since Defendants do not argue that Plaintiff Fisher lacks standing to seek damages, and 2 since the Court does not independently identify any defect with its jurisdiction over Plaintiff 3 Fisher’s damages claims, the Court concludes that it need not consider whether the Tribe also has 4 standing to pursue damages. At this stage of the litigation, it is enough that Plaintiff Fisher does.4 5 The parties’ standing to pursue injunctive relief presents a harder question, however, and 6 the Court ultimately agrees with Defendants that Plaintiffs have not adequately pled sufficient 7 facts to support such standing under Government Code section 11135. To obtain injunctive relief, 8 a plaintiff must show that they suffered or are threatened with a “concrete and particularized” legal 9 harm, coupled with a “sufficient likelihood that [they] will again be wronged in a similar way.” 10 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); City of Los Angeles v. Lyons, 461 U.S. 11 95, 111 (1983). The plaintiff must specifically show that the feared harm is “actual or imminent, 12 not conjectural or hypothetical.” Lujan, 504 U.S. at 560. Furthermore, the Supreme Court has 13 repeatedly held that “[past] exposure to illegal conduct does not itself show a present case or 14 controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse 15 effects.” O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974); Rizzo v. Goode, 423 U.S. 362, 372 16 (1976); Lyons, 461 U.S. at 101–104. 17 The Court finds that the FAC lacks sufficient nonconclusory, factual allegations of any 18 continuing present adverse effects on either Plaintiff Fisher or other NMDs who are Tribal 19 members. Plaintiffs acknowledge that after CDSS issued ACL 22-16 on February 15, 2022, efforts 20 (albeit “nominal” ones) were made to re-enroll American Indian youth who had been erroneously 21 deemed ineligible for federal extended foster care benefits. FAC ¶¶ 45–46. But Plaintiffs do not 22 allege that the County Defendants failed to re-enroll plaintiff Fisher, nor do they allege with any 23 specificity that the County Defendants improperly discontinued any other American Indian 24 youth’s federal benefits or dissuaded or counseled any NMDs from participating in the NMD 25
26 1133. But it does not follow that the rule is inapplicable where a plaintiff also seeks damages, and Defendants have not cited any authority that cabins the rule in this manner. 27 4 Standing to seek damages is of course distinct from the availability of damages against all 1 program after the issuance of ACL 22-16. Other than a conclusory statement that “Humboldt 2 County has continued its policy or custom of finding non-minor American Indian youth, including 3 non-minor Tribal Members, ineligible for the 18 and Over Program as a result of tribal ‘per capita 4 distributions’” (¶ 48), there are no particularized allegations of any continuing or present adverse 5 effects on Plaintiffs and no allegations indicating a realistic likelihood that they would again be 6 subject to the County Defendants’ alleged discriminatory conduct. 5 Iqbal, 556 U.S. at 678 (a 7 complaint must contain more than unadorned accusations; “sufficient factual matter” must make 8 the claim at least plausible). Without these allegations, Plaintiffs lack standing to bring a claim to 9 enforce Section 11135 because they have failed to adequately plead a case or controversy 10 regarding injunctive relief. O’Shea, 414 U.S. at 495–96 (a plaintiff cannot present a present case 11 or controversy regarding injunctive relief where there are no allegations of continuing, present 12 adverse effects); Lyons, 461 U.S. at 109 (plaintiff lacked standing to bring an injunctive relief 13 claim because of “the speculative nature of his claim that he will again experience injury as the 14 result of that practice even if continued”). 15 The Court further finds that since Plaintiffs’ request for a writ of mandate is essentially the 16 functional equivalent of their prayer for an injunction, the same rationale counsels against 17 permitting Plaintiffs from pursuing this form of relief based on the existing allegations. 18 As a result, the Court DENIES Defendants’ motions to dismiss the Tribe as lacking 19 standing to pursue damages, but GRANTS the motions to the extent they argue that Plaintiffs lack 20 standing to seek injunctive relief. It also GRANTS the County Defendants’ motion to dismiss 21 Plaintiffs’ request for a writ of mandamus. That said, since Plaintiffs indicated at the hearing that 22 specific factual developments following the filing of their FAC demonstrate that Defendants are 23 still conducting improper redeterminations and dissuading Native NMDs from entering extended 24 foster care based on misapprehensions regarding tribally based financial distributions, the Court 25 5 The FAC leaves somewhat ambiguous whether Plaintiff Fisher’s benefits were denied before or 26 after ACL 22-16 was issued. If they were denied before, Plaintiff has not pointed to a single specific and identifiable instance of improper benefit redeterminations of NMDs since ACL 22- 27 16’s issuance. And even if they were denied after, the complaint lacks the type of particularized 1 will permit Plaintiffs leave to amend their complaint to add additional allegations concerning the 2 ongoing nature of the unlawful practices alleged. 3 A. Mootness 4 The State Defendants argue that Plaintiffs’ case against them is moot, because their 5 issuance of ACL 22-16 “m[ade] clear that, consistent with [] prior guidance, [redeterminations of 6 NMDs continuing in foster care upon reaching the age of majority] are prohibited.” State MTD at 7 16. Plaintiffs allege that a live controversy exists because the supposed remediation was merely 8 partial, and left ACL 13-16 in place. They further allege that as a result, harm against Native 9 NMDs continues. While these allegations are adequate at this stage, further factual development 10 very well may conclusively show that ACL 22-16 fully remediated the alleged harm flowing from 11 the State’s issuance of ACL 13-91. If the State brings a mootness challenge at the summary 12 judgment stage, for instance, Plaintiffs will carry the burden of factually demonstrating how ACL 13 13-91 continues to harm Plaintiffs despite the subsequent guidance provided by ACL 22-16, or at 14 least providing a factual basis for a reasonable expectation that the State may reinstate the prior, 15 allegedly incorrect guidance. See Bd. of Trustees of Glazing Health & Welfare Tr. v. Chambers, 16 941 F.3d 1195 (9th Cir. 2019). For now and on this limited record, however, Plaintiffs adequately 17 articulate a live dispute as to both Defendants. 18 The Court therefore DENIES the State Defendants’ motion to dismiss on this ground. 19 B. Defendants Kim Johnson and Connie Beck 20 Defendants argue that Directors Johnson and Beck must be dismissed from the suit 21 because the FAC lacks specific allegations concerning their personal involvement in CDSS and 22 HDHHS’s allegedly wrongful conduct. County MTD 18–19; State MTD at 20. The Court 23 concludes that Plaintiffs have pled enough for now. 24 In so ruling, the Court recognizes that the allegations against Directors Johnson and Beck 25 are thin. However, Plaintiffs have pled that the Directors were “responsible” for the 26 “enforcement, operation and execution of laws” that allegedly resulted in the constitutional 27 violation Plaintiffs experienced, which is what is required. See Kentucky v. Graham, 473 U.S. 1 Department of Social Services . . . . Ms. Johnson is responsible for the enforcement, operation, and 2 execution of laws, and the issuance of binding guidance pertaining to the State of California’s 3 policies towards the extended foster care program, including the guidance regarding applications 4 for foster care benefits described therein.”), 11 (“Defendant Connie Beck is the Director of 5 Defendant Humboldt County’s Department of Health and Human Services . . . . Ms. Beck is 6 responsible for the enforcement, operation and execution of laws pertaining to Defendant 7 Humboldt County’s administration of Humboldt County’s extended foster care program, including 8 the administration of applications for foster care benefits described therein.”). While Plaintiffs 9 will need to do more to ultimately establish liability against these Defendants in either their 10 individual or official capacities, Defendants insist on a pleading standard that is too exacting at 11 this stage (or one that is simply misplaced, since Plaintiffs do not rely on a respondeat superior 12 theory of liability). 13 Accordingly, the Court DENIES Defendants’ motions to dismiss Defendants Johnson and 14 Beck. 15 C. Substantive Claims 16 i. Government Code Section 11135 17 Having already found that Plaintiffs lack standing to pursue injunctive relief, the Court 18 must GRANT Defendants’ motions to dismiss Plaintiff’s claim for injunctive relief under Section 19 11135, which prohibits discrimination against individuals on the basis of, among other things, 20 race, ancestry, or ethnic group identification, in or under “any program or activity that is 21 conducted, operated, or administered by the state or by any state agency, is funded directly by the 22 state, or receives any financial assistance from the state.” Gov. Code § 11135(a). 23 Given this determination, the Court is not required to address additional arguments 24 concerning the viability of Plaintiff’s claims. However, in order to provide prospective guidance 25 to the parties, the Court observes that to the extent Plaintiffs argue that Defendants violate Section 26 11135 by “broadly identif[ying] American Indian youth as recipients of tribal assets and . . . thus 27 implement[ing] a policy of precluding and dissuading this population from applying for extended 1 State.6 Opp. at 15–16. The current pleadings do not suggest that the State Defendants played a 2 role in developing or implementing this blanket policy. See FAC ¶ 36 (“[U]pon information and 3 belief, it was Humboldt County and Humboldt DHHS’s policy or custom to dissuade Tribal youth 4 from applying . . . .”). In fact, the State Defendants warn against generalizations concerning tribal 5 income in the very policy document with which Plaintiffs take issue, stating that “[t]ribal 6 distributions must [] be reviewed on a case by case basis as criteria and conditions for such 7 distributions will differ.” Dkt. No. 33-1 at 9. Plaintiffs have not alleged any facts plausibly 8 suggesting that, contrary to their stated policy position recognizing the nuances of tribal 9 distributions, the State Defendants nevertheless conspired with the County to stereotype Native 10 NMDs and dissuade them from applying for extended foster care. 11 The State Defendants additionally argue that Plaintiff’s Section 11135 claim is deficient 12 for another reason: that the statute prohibits discrimination in state-funded programs and activities, 13 but not by state agencies themselves. See State Reply at 12–13; Gov. Code § 11135 (prohibiting 14 discrimination under “any program or activity that is conducted, operated, or administered by the 15 state or by any state agency, is funded directly by the state, or receives any financial assistance 16 from the state”); Cal. Code. Regs. Tit. 2, § 11150 (Section 11135’s implementing regulations 17 defining “program or activity” as “any project, action or procedure undertaken directly by 18 recipients of State support”; defining “recipients” as “any contractor, local agency, or person, who 19 regularly employs five or more persons and who receives State support” but specifically not as 20 “State agencies”). Because this argument was raised for the first time on reply and Plaintiffs have 21 not had a chance to respond to it, the Court declines to evaluate it. See Rodman v. Safeway Inc., 22 125 F. Supp. 3d 922, 930 n.6 (N.D. Cal. 2015), aff’d, 694 F. App’x 612 (9th Cir. 2017). However, 23 in any amended complaint, Plaintiffs are advised to consider Defendants’ arguments concerning 24 6 Plaintiffs appear to waffle on whether or not to frame this as a disparate impact claim. While the 25 Court does not read their complaint to allege disparate impact discrimination, their opposition states that they “adequately pleaded disparate impact in violation of Government Code section 26 11135.” Opp. at 15. However, if Plaintiffs allege that Defendants “targeted” Native NMDs by making unwarranted assumptions about their receipt of tribal distributions and then, based on 27 those assumptions, dissuading them from applying for extended foster care benefits, their 1 the scope of Section 11135 and adjust their allegations as needed. 2 ii. Due Process 3 The County Defendants argue that Plaintiffs’ Fourteenth Amendment claim must fail 4 because they do not plead the required elements of a Section 1983 claim based on procedural due 5 process, while Plaintiffs contend that they have done enough to state a viable claim. The Court 6 determines that Plaintiffs have adequately alleged a violation at this stage. 7 To plead a Section 1983 claim based on procedural due process, a plaintiff must allege 8 three elements: “(1) a liberty or property interest protected by the Constitution; (2) a deprivation of 9 the interest by the government; (3) lack of process.” Portman v. Cnty. of Santa Clara, 995 F.2d 10 898, 904 (9th Cir. 1993). The County argues that Plaintiffs have failed to adequately plead the 11 first element – entitlement to a constitutionally protected property interest – because “plaintiffs 12 have not shown an unambiguous [congressional] intent to confer a specific monetary entitlement 13 on the child.” County MTD at 32; see also State Reply at 15. It is true that “[t]he Supreme Court 14 has repeatedly recognized that a federal statute can create an enforceable right under § 1983 when 15 it explicitly confers a specific monetary entitlement on an identified beneficiary,” and held that 16 “Congress’s intent to benefit the plaintiff must be ‘unambiguous.’” California State Foster Parent 17 Ass’n v. Wagner, 624 F.3d 974, 978–79 (9th Cir. 2010). Foster parents – rather than the foster 18 children themselves – are typically considered the beneficiaries of Title IV-E benefits. However, 19 even the County admits that a NMD like Plaintiff Fisher may be considered the identified 20 beneficiary of Title IV-E benefits, “but only under certain limited circumstances” defined by WIC 21 § 11403(b). County Reply at 18. While Plaintiffs could have made more particularized 22 allegations concerning the presence of these circumstances (for example, whether Plaintiff Fisher 23 lived independently in a supervised placement), the Court finds that based on the allegation that 24 Plaintiff moved into housing managed by Humboldt County when her benefits were approved, and 25 construing the facts in light most favorable to Plaintiff, it is plausible that she was receiving 26 “constitutionally protected property interest in the foster care benefits” under Title IV-E for which 27 she was the identified beneficiary. FAC ¶¶ 56, 57, 72. If factual development shows otherwise, 1 The County Defendants, after citing various provisions designed to ensure a fair hearing 2 process for foster youth, also argue that Plaintiffs do not satisfy the third prong. They argue that 3 “the FAC does not allege the County Defendants failed to comply with the procedural 4 requirements for involuntary termination of aid and lacks any factual allegations pertaining to any 5 attempts made by plaintiff Fisher or any other members of the Tribe to avail themselves of this 6 process.” County MTD at 33; see also State Reply at 16. But that is exactly what Plaintiffs do 7 allege: Plaintiff Fisher was unilaterally stripped of her extended foster care benefits without being 8 afforded a hearing or other proceeding. If the thrust of her allegation is that she was never given 9 an opportunity to contest the revocation of her benefits, she cannot be faulted for not pleading that 10 she tried to avail herself of a process that all parties agree exists on paper but that she alleges was 11 not extended to her. 12 Finally, State Defendants in their moving papers (as opposed to their Reply, where they 13 raised new arguments) essentially just argue that they should be dismissed because they do not 14 conduct redeterminations and could not have violated Plaintiffs’ due process rights. State MTD at 15 19. Plaintiffs oppose their dismissal, arguing that “the extent of the State’s role in the underlying 16 conduct is a factual issue.” While Plaintiffs’ burden of proof linking State Defendants to the 17 alleged misconduct ultimately may well be difficult to meet, the Court finds that Plaintiffs have 18 pled that State Defendants’ issuance of ACL 13-91 led to constitutional deprivations. 19 Accordingly, the Court DENIES the Defendants’ motions to dismiss Plaintiffs’ Section 20 1983 claim. 21 iii. California Administrative Procedures Act 22 State Defendants maintain that ACL 13-91 was not subject to the formal rulemaking 23 requirements of the California Administrative Procedures Act (“CAPA”) pursuant to an exception, 24 and that Plaintiffs’ claim under that statute must be dismissed.7 State MTD at 19–20. The Court 25 agrees with Plaintiff that their claims are adequately pled at this stage. 26 CAPA requires that an agency comply with the notice and comment procedures for 27 1 formalizing a regulation; the failure to do so voids the regulation. Gov. Code § 11340.5, subd. (a); 2 Tidewater Marine W., Inc. v. Bradshaw, 14 Cal. 4th 557, 568 (1996). “A regulation subject to the 3 [C]APA . . . has two principal identifying characteristics. First, the agency must intend its rule to 4 apply generally, rather than in a specific case . . . . Second, the rule must ‘implement, interpret, or 5 make specific the law enforced or administered by [the agency.]” Tidewater, 14 Cal. 4th at 571. 6 There is an exception to the CAPA requirements, however, where the agency interpretation of a 7 statute is “the only legally tenable interpretation” of that statute. Gov. Code § 11340.9, subd. (f). 8 This has been interpreted to mean that the law “can reasonably be read only one way,” such that 9 “the agency’s actions or decisions in applying the law are essentially rote, ministerial, or otherwise 10 patently compelled by, or repetitive of, the statute’s plain language.” Morning Star Co. v. State 11 Bd. of Equalization, 38 Cal. 4th 324, 336-37 (2006). 12 The parties’ arguments about whether or not ACL 13-91 is subject to the “only legally 13 tenable interpretation” exception fold back into the fundamental dispute in this case about whether 14 or not ACL 13-91 fairly interprets the binding federal directive; Plaintiffs’ belief that it does not 15 constitutes the entire basis for the State’s inclusion in this suit. As such, and in the absence of any 16 authority cited by the State Defendants suggesting that resolution of this issue is required at the 17 pleadings stage, the Court finds it appropriate to defer it pending development of the record. But 18 even if the Court considered the arguments based on the existing allegations and judicially noticed 19 documents, it preliminarily observes that ACL 13-91 – which provides seven pages of guidance on 20 how P.L. 110-351, AB 12 and AB 1712 apply to Native NMDs – appears “expressly intended as a 21 rule of general application to guide [California counties] on the applicability of [extended foster 22 care laws] to a particular type of [youth],” and was not “merely a restatement or summary of how 23 the [agency] had applied the [statutes] in the past.” Tidewater, 14 Cal. 4th at 572. As such, the 24 notion that the guidance was “essentially rote, ministerial, or otherwise patently compelled by, or 25 repetitive of, the statute’s plain language” seems strained. 26 For these reasons, the Court DENIES the State Defendants’ motion to dismiss Plaintiffs’ 27 1 CAPA claim.8 2 iv. Declaratory Relief 3 The County Defendants challenge Plaintiffs’ request for declaratory relief, arguing that 4 because there is no ongoing controversy regarding Defendants’ administration of benefits, 5 declaratory relief is unwarranted. Plaintiffs disagree. 6 Though the County Defendants’ position is clearly that ACL 22-16 resolved the 7 controversy, Plaintiffs allege that the County has continued its policy of unlawfully conducting 8 redeterminations of Native NMDs to the present. While the Court is not persuaded that the 9 allegations about current harm are strong enough to support Plaintiffs’ request for injunctive relief, 10 they are sufficient to state an “actual controversy” concerning the County’s administration of the 11 extended foster care program. 28 U.S. Code § 2201. Accordingly, the Court DENIES the County 12 Defendants’ motion to dismiss on this ground. 13 D. Motion to Strike 14 Federal Rule of Civil Procedure 12(f) provides that a court may strike “from any pleading 15 any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. 16 Civ. P. 12(f). “Motions to strike are regarded with disfavor because they are often used as 17 delaying tactics and because of the limited importance of pleadings in federal practice.” Z.A. ex 18 rel. K.A. v. St. Helena Unified Sch. Dist., No. C 09-03557 JSW, 2010 WL 370333, at *2 (N.D. 19 Cal. Jan. 25, 2010). “Where there is any doubt as to the relevance of the challenged allegations, 20 courts generally err on the side permitting the allegations to stand . . . .” See id. (citing Fantasy, 21 Inc. v. Fogerty, 984 F.2d 1524, 1528 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 517, 534 22 (1994)). This is particularly true when the moving party shows no prejudice and when striking the 23 allegations will not streamline the ultimate resolution of the action. Id. 24 Here, the County Defendants seek to strike a single paragraph in the FAC for alleging that 25 “[i]f not enjoined by the Court, Defendants will continue to deny Tribal members compensation 26 8 State Defendants refer to Plaintiffs’ CAPA claim at various points as “stale” and possibly subject 27 to laches. But because they did not brief the applicable statute of limitations or flesh out their ] for the lost monetary and in-kind benefits to which they were clearly entitled.” FAC § 69; County 2 || MTD at 28. The County argues that striking is warranted because the paragraph contains an 3 improper request for damages (which is impermissible under Government Code section 11135), 4 || and has maintained that argument even after Plaintiffs clarified in their opposition that “none of 5 || the allegations [concerning Section 11135]... amount to a request for damages” and rather are 6 || included “simply [to] explain the basis for injunctive relief.” Opp. at 19. Since the Court finds 7 || Plaintiffs’ reading of the allegation fair, and because the allegation neither prejudices the 8 Defendant nor influences the ultimate resolution of the action, the Court in its discretion DENIES 9 the County’s motion to strike. Orosa v. Therakos, Inc., No. C-11-2143 EMC, 2011 WL 3667485, 10 || at *7(N.D. Cal. Aug. 22, 2011) (Ultimately, whether to grant a motion to strike lies within the 11 sound discretion of the district court.”) (citations omitted). 12 || IV. CONCLUSION E 13 The Court GRANTS IN PART and DENIES IN PART Defendants’ motions to dismiss, 14 Dkt. No. 32, 38, and GRANTS Defendants’ requests for judicial notice, Dkt. Nos. 33, 34-1. 3 15 Any amended complaint must be filed no later than 21 days from the date of this order. 16 The Court further SETS a telephonic case management conference on April 30, 2024, at i 17 || 2:00 p.m, with the case management statement due April 23, 2024. All counsel shall use the Z 18 following dial-in information to access the call: 19 Dial-In: 888-808-6929; 20 Passcode: 6064255 21 All attorneys and pro se litigants appearing for a telephonic case management conference 22 || are required to dial in at least 15 minutes before the hearing to check in with the courtroom 23 deputy. For call clarity, parties shall NOT use speaker phone or earpieces for these calls, and 24 || where at all possible, parties shall use landlines. 25 IT IS SO ORDERED. 26 Dated: March 11, 2024 n Abin 8 Mbt). HAYWOOD S. GILLIAM, JR. 28 United States District Judge