22-1174 Family Equality v. Becerra

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14th day of February, two thousand twenty-four.

PRESENT: BARRINGTON D. PARKER, GERARD E. LYNCH, RAYMOND J. LOHIER, JR., Circuit Judges. ------------------------------------------------------------------ FAMILY EQUALITY, TRUE COLORS UNITED, INC., SERVICES & ADVOCACY FOR GLBT ELDERS,

Plaintiffs-Appellants,

v. No. 22-1174-cv

XAVIER BECERRA, in his official capacity as Secretary, United States Department of Health and Human Services, UNITED STATES DEPARTMENT OF HEALTH AND

1 HUMAN SERVICES,

Defendants-Appellees. ------------------------------------------------------------------

FOR APPELLANTS: KRISTEN P. MILLER, Democracy Forward Foundation, Washington, DC (Robin Thurston, Democracy Forward Foundation; Karen L. Loewy, Sasha Buchert, and Marshall Currey Cook, Lambda Legal Defense & Education Fund, Inc., on the brief)

FOR APPELLEES: JEFFREY E. SANDBERG, Civil Division, Appellate Staff, United States Department of Justice, Washington, DC (Michael S. Raab, Department of Justice; Lucas Issacharoff and Benjamin H. Torrance, for Damian Williams, United States Attorney, United States Attorney’s Office for the Southern District of New York, on the brief)

Appeal from a judgment of the United States District Court for the

Southern District of New York (Mary Kay Vyskocil, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the District Court is AFFIRMED.

2 Plaintiffs-Appellants Family Equality, True Colors United, Inc., and

Services & Advocacy for GLBT Elders appeal from a judgment of the United

States District Court for the Southern District of New York (Vyskocil, J.)

dismissing their claims against Defendants-Appellees Xavier Becerra and the

United States Department of Health and Human Services (“HHS”) for lack of

standing. Appellants challenge HHS’s 2019 Notice of Non-Enforcement, which

announced that the agency would no longer enforce its prior rule prohibiting

HHS grant recipients from discriminating on the basis of several protected

characteristics, including sexual orientation or gender identity. See Notification

of Nonenforcement of Health and Human Services Grants Regulation,

(Nov. 19, 2019) (“2019 Notice”). We assume the parties’ familiarity

with the underlying facts and the record of prior proceedings, to which we refer

only as necessary to explain our decision to affirm.

Appellants are advocacy organizations that support LGBTQ-identifying

people. They provide education and training to partner organizations that

directly serve the LGBTQ community, and they lobby local, state, and federal

lawmakers to promote antidiscrimination policies. The District Court held that

Appellants did not allege any injury-in-fact and accordingly lacked standing to

3 challenge the 2019 Notice on the merits. On de novo review, see Conn. Parents

Union v. Russell-Tucker,

(2d Cir. 2021), we affirm.

On appeal, Appellants argue that they have organizational standing

because the 2019 Notice “perceptibly impaired” their organizational activities.

Appellants’ Br. 28; see Conn. Parents Union,

. Specifically, Appellants

contend that the 2019 Notice made their education and advocacy activities more

costly because they were no longer able to rely on HHS’s regulation prohibiting

grant recipients from discriminating against LGBTQ people. Instead, they had to

devote staff time to identifying for HHS grant recipients alternative

antidiscrimination protections, encouraging grant recipients themselves not to

discriminate, educating partner organizations about the effects of the 2019

Notice, and lobbying state governments to fill the gap left by the 2019 Notice.

The significant time that staff spent responding to the 2019 Notice, Appellants

claim, diverted resources away from their other organizational activities.

To allege injury-in-fact under their theory of organizational standing,

Appellants must show that the 2019 Notice imposed “an involuntary material

burden on [their] established core activities,” Conn. Parents Union,

,

that impeded their “ability to carry out [their] responsibilities” or forced them

4 “to divert money from [their] other current activities to advance [their]

established organizational interests,” Centro de la Comunidad Hispana de Locust

Valley v. Town of Oyster Bay (“Centro”),

(2d Cir. 2017) (cleaned

up). Expenditures incurred on Appellants’ own initiative “‘cannot support a

finding of injury’ sufficient to create standing ‘when the expenditures are not

reasonably necessary to continue’” their established core activities. Antonyuk v.

Chiumento,

, 344 (2d Cir. 2023) (quoting Conn. Parents Union,

).

Appellants have not shown an “involuntary and material impact[] on

[their established] core activities by which their organizational mission has

historically been carried out.”

(cleaned up). It is not enough for Appellants to

claim that the 2019 Notice burdened their education, outreach, and lobbying

efforts because they had to spend time assessing its impact and identifying other

antidiscrimination protections that would permit them to continue advocating

on behalf of the LGBTQ community. See

Appellants, who regularly provide

education and training to partner organizations, would have spent time

assessing the effects of a policy change no matter the content of the 2019 Notice.

See Conn. Citizens Defense League, Inc. v. Lamont,

(2d Cir. 2021).

5 While the content of their core educational, outreach, and lobbying work may

have changed in response to the 2019 Notice, these core activities have continued

without restriction. In the absence of “any restrictions on [their] ability to

perform the[ir] core activities,” Appellants cannot establish that they have

suffered an injury sufficient to create standing. Conn. Parents Union,

.

Finally, Appellants have not even shown that the 2019 Notice caused a

relevant increase in demand for their services that, for example, required them to

hire more staff, increase their overall engagement with their partner

organizations, or otherwise do more than merely shift the focus of their

advocacy. See New York v. U.S. Dep’t of Homeland Sec.,

, 61 (2d Cir.

2020); Moya v. U.S. Dep’t of Homeland Sec.,

(2d Cir. 2020). Insofar

as Appellants undertook educational, outreach, and state lobbying efforts in

response to the 2019 Notice, they have not demonstrated that these efforts (and

associated costs) were anything other than voluntary initiatives to advance the

Appellants’ “‘abstract social interests.’” See Conn. Parents Union,

(quoting Havens Realty Corp. v. Coleman,

(1982)); Antonyuk, 89

F.4th at 344.

6 We therefore agree with the District Court that Appellants lack Article III

standing.

We have considered Appellants’ remaining arguments and conclude that

they are without merit. For the foregoing reasons, the judgment of the District

Court is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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