Pro Bono Effort Challenges Government’s Discriminatory Policy Against Prospective LGBTQ Foster Parents for Refugee Children

October.13.2021

An Orrick pro bono team, in collaboration with Americans United for Separation of Church and State and Lambda Legal, filed a federal lawsuit against the U.S. Department of Health and Human Services, along with several HHS officials and programs, challenging discriminatory practices against LGBTQ foster parent applicants to care for unaccompanied refugee children.

The case alleges the government is sanctioning discrimination against LGBTQ foster parent applicants by organizations receiving taxpayer funds to care for these refugee children.

The case, Easter v. HHS, was filed on behalf of Kelly Easter, from East Nashville, Tenn., who has been denied the opportunity to become a foster parent for a child in a federal foster care program for immigrant children. Initially, Easter was directed to the participating program in her area: Bethany Christian Services, a sub-grantee of the United States Conference of Catholic Bishops (USCCB), which receives federal funds to provide foster care services. But Easter was informed that she could not be a foster parent because she is a lesbian.

Despite reporting the discriminatory policy to HHS officials, Easter has continued to be denied access to the foster care opportunities near her home. The federal government has for years sanctioned discrimination by ignoring evidence that USCCB discriminates and requires its sub-grantees to discriminate against LGBTQ foster parent applicants, reducing the number of available homes for children in need and sending a damaging message to LGBTQ adults and children.

“Plaintiff Kelly Easter is one of the many people who are subjected to the sting of discrimination and deprived of the opportunity to participate in a federal program for refugee children on the same terms as other prospective foster parents,” the lawsuit states.

The Orrick team is led by partners Andrew Silverman, Seth Harrington and Danny Rubens.

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Andrew D. Silverman Partner, Supreme Court & Appellate, Supreme Court and Appellate “Issues”

New York

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Supreme Court & Appellate
Supreme Court and Appellate “Issues”
Contentieux complexes & Résolution des litiges
Mass Torts & Product Liability
Propriété intellectuelle
Trademark, Copyright & Media
Financial Services Litigation
Litiges relatifs aux titres, recours collectifs et actions obliques des actionnaires
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Andrew D. Silverman Partner

New York

Andrew is a skilled brief writer who works on significant motions in the trial court to prevent any need for appeal by winning the case first. Drawing on his years as a trial attorney at the U.S. Department of Justice, Andrew collaborates with the trial court team to serve as the point person for law-intensive brief-writing and strategy. Andrew is frequently retained to work on motions to dismiss, preliminary-injunction briefing, and summary-judgment motions. If the case proceeds toward trial, Andrew leads strategizing and all manner of briefing from jury instructions to motions in limine to mid-trial objections and pocket briefs to post-trial motions for judgment as a matter of law and for a new trial.

In addition, Andrew focuses on readying cases for appeal by perfecting critical appellate issues and teeing them up in the most favorable posture. Andrew has brought these special skills to bear for some of the world’s largest companies in their most important cases, including for Oracle (against Google and the U.S. Department of Labor), PricewaterhouseCoopers (against MF Global), and Gilead Sciences (under the False Claims Act and in a mass products liability action involving tens of thousands of plaintiffs).

Andrew also has a strong record on appeals, including major wins for Oracle (against Google), Dow AgroSciences (against Bayer CropSciences), Basin Electric Power Cooperative (against one of its member-owners), KBC Bank (against Lazare Kaplan), and in the U.S. Supreme Court for the County of Los Angeles and for a Thai Professor (in a landmark copyright ruling). In appellate cases, Andrew takes pride in collaborating with his client and the trial team to rethink the case from the bottom up, searching for ways to present even the most complicated arguments as plain common sense, and drafting a storytelling version of the case that hooks the reader from the first page. Andrew emphasizes oral argument, working tirelessly to develop themes specifically for oral argument that magnify -- not merely parrot -- the briefing.

Daniel A. Rubens Partner, Supreme Court & Appellate

New York

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D:+1 212 506 3679
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Supreme Court & Appellate

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Daniel A. Rubens Partner

New York

Danny's practice focuses on appellate litigation. He has led the drafting on dozens of appellate briefs, and regularly argues appeals in state and federal courts. Danny has extensive trial litigation experience as well, with an emphasis on dispositive motions, preserving appellate issues, and developing creative legal strategies.

Danny’s work has covered a wide range of subject areas, including securities, bankruptcy, intellectual property, arbitration, class actions, and criminal law. He has a deep understanding of appeals and critical motions in financial services litigation, and in recent years has played a key role in representing financial institutions in major RMBS cases brought by trustees, investors, and monoline insurers. His financial services clients include Credit Suisse, Goldman Sachs, Mr. Cooper, and Ocwen. He also represents leading technology companies in precedent-setting cases involving antitrust law and ballot initiatives, as well as other complex commercial litigation. In addition, Danny is an experienced bankruptcy litigator, having represented various debtors and creditors in fraudulent transfer cases and other contested insolvency-related matters involving U.S. and foreign law.

Danny is a member of the Second Circuit's pro bono panel and maintains an active pro bono practice focusing on criminal, immigration, racial justice, and LGBTQ+ rights matters in the Supreme Court and other appellate courts. He was recently recognized by the National LGBTQ+ Bar Association as a “Best LGBTQ+ Lawyer Under 40,” by the New York Law Journal as a Rising Star, and by LawDragon in its inaugural 500 X – The Next Generation listing. As part of his commitment to diversity, equity, and inclusion, Danny serves as a mentor for The Appellate Project, an organization focused on empowering law students of color to thrive in the appellate field. He has also served as an Orrick ambassador for the Move The Needle Fund, a collaborative effort designed by Diversity Lab to create a more diverse and inclusive legal profession.

Before joining Orrick, Danny served as a law clerk to U.S. Supreme Court Justice Ruth Bader Ginsburg, Judge Robert A. Katzmann of the U.S. Court of Appeals for the Second Circuit, and Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York. Following his clerkships, he was selected to represent the American Inns of Court as a Temple Bar Scholar in London.