Multnomah Cnty., an Existing Cnty. Gov'T&a Body Politic & Corporate v. Azar, Case No. 3:18-cv-01015-YY

CourtUnited States District Courts. 9th Circuit. United States District Court (Oregon)
Writing for the CourtYOU, Magistrate Judge
Citation340 F.Supp.3d 1046
Decision Date30 August 2018
Docket NumberCase No. 3:18-cv-01015-YY
Parties MULTNOMAH COUNTY, an existing county government and a body politic and corporate, Plaintiff, v. Alex M. AZAR II, in his official capacity as Secretary, U.S. Department of Health and Human Services; Valerie Huber, in her official capacity as the Senior Policy Advisor for the Office of the Assistant Secretary of Health; and U.S. Department of Health and Human Services, Defendants.

340 F.Supp.3d 1046

MULTNOMAH COUNTY, an existing county government and a body politic and corporate, Plaintiff,
v.
Alex M. AZAR II, in his official capacity as Secretary, U.S. Department of Health and Human Services; Valerie Huber, in her official capacity as the Senior Policy Advisor for the Office of the Assistant Secretary of Health; and U.S. Department of Health and Human Services, Defendants.

Case No. 3:18-cv-01015-YY

United States District Court, D. Oregon, Portland Division.

Signed August 30, 2018


340 F.Supp.3d 1050

Alanna Peterson, Gregory J. Wong, Pro Hac Vice, Jessica A. Skelton, Pacifica Law Group LLP, Seattle, WA, Javier M. Guzman, Pro Hac Vice, Jeffrey B. Dubner, Pro Hac Vice, Josephine T. Morse, Democracy Forward, Washington, DC, for Plaintiff.

Michael J. Gerardi, Department of Justice, Washington, DC, for Defendants.

OPINION AND ORDER

YOU, Magistrate Judge:

Plaintiff Multnomah County ("the County") has brought this action to enjoin the administration of the 2018 application and selection process for Teen Pregnancy Prevention Program ("TPP Program") grants by defendants U.S. Department of Health and Human Services ("HHS"), Secretary Alex M. Azar II, and Senior Policy Advisor Valerie Huber (collectively "defendants"). Am. Compl. ¶ 1, ECF # 28. The County alleges four claims: In Count One, the County asserts that the 2018 Tier 1 Funding Opportunity Announcement ("2018 Tier 1 FOA") must be vacated under the Administrative Procedures Act, 5 U.S.C. § 706(2)(A) ("APA") because it is not in accordance with law, specifically the Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, 132 Stat. 348, 733 (2018) ("2018 CAA"), the Purpose Statute, 31 U.S.C. § 1301(a), and the Appropriations Clause, Art. I, § 9, cl. 7. Id. ¶¶ 97–104. In Count Two, the County claims that under the APA, the 2018 Tier 1 FOA is arbitrary and capricious and defendants have abused their discretion. Id. ¶¶ 105–11. Count Three alleges that the 2018 Tier 1 FOA violates the APA in that it is contrary to HHS regulations, specifically 45 C.F.R. § 87.3(l). Id. ¶¶ 112–16. Finally, in Count Four, the County asserts that the 2018 Tier 1 FOA is an ultra vires action. Id. ¶¶ 117–20.

The County has filed a Motion for Preliminary Injunction and Partial Summary Judgment with respect to Counts One, Two, and Four. ECF # 29.1 Defendants have filed a Motion to Dismiss or for Summary Judgment against all counts. ECF # 42.

This court has federal question jurisdiction over this action. 28 U.S.C. § 1331. All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with Fed. R. Civ. P. 73 and 28 U.S.C. § 636(c). For the reasons set forth below, the County's motion for summary judgment with respect to Counts One and Four is granted, and defendants' motion for summary judgment on those claims is denied. The County's motion for preliminary injunction is denied as moot. The motions for summary judgment on Counts Two and Three are also denied as moot.

BACKGROUND

Although Congress first became involved with sexual-health education in the early 1900s, the passage of the Adolescent Family Life Act in 1982 provides the necessary context to frame the issues here. Pub. L. No. 97–35, 95 Stat. 582 (1981) (codified at 42 U.S.C. § 300z ). From 1982 until 2010, Congress funded "abstinence education" with the purpose of promoting "abstinence from sexual activity."2 During

340 F.Supp.3d 1051

this time, Congress funded "educational or motivational program[s]" that had the "exclusive purpose [of] teaching the social, psychological, and health gains to be realized by abstaining from sexual activity." 42 U.S.C. § 710(2)(A) (2000). These programs taught "abstinence from sexual activity outside marriage as the expected standard for all school age children," and "that sexual activity outside of the context of marriage is likely to have harmful psychological and physical effects." Id. §§ 710(2)(B), (E) (2000). To date, Congress has continued funding programs that promote abstinence from non-marital sexual activity. See 2018 CAA, 132 Stat. at 733 (appropriating $25 million in FY 2018 for "making competitive grants which exclusively implement education in sexual risk avoidance"); 42 U.S.C. § 710 (2018 Suppl.) (appropriating $75 million in FY 2018 to Sexual Risk Avoidance Education Programs under Title V of the Social Security Act).

However, in fiscal year 2010, Congress charted a new course by creating the Teen Pregnancy Prevention ("TPP") Program. See Consolidated Appropriations Act of 2010, Pub. L. No. 111–117, 123 Stat. 3034, 3253 (2009) ("2010 CAA"); H.R. Rep. No. 111-366, at 1040–41 (2009). Through the TPP Program, Congress appropriated funds toward sexual-health-education initiatives with evidence of effectiveness, with few restrictions on the underlying subject matter. Specifically, the 2010 CAA appropriated no less than $110 million "to fund medically accurate and age appropriate programs that reduce teen pregnancy," no less than $75 million for "replicating programs that have been proven effective through rigorous evaluation to reduce teenage pregnancy, behavioral risk factors underlying teenage pregnancy, or other associated risk factors" (known as Tier 1 grants), no less than $25 million for "for research and demonstration grants to develop, replicate, refine, and test additional models and innovative strategies for preventing teenage pregnancy" (known as Tier 2 grants), and any remainder to "be available for training and technical assistance, evaluation, outreach, and additional program support activities." Id. Every year since 2010, including through fiscal year 2018, Congress has appropriated between $100 million and $110 million to the TPP program with the same operative statutory text as the 2010 CAA and the same 75% allocation for replicating programs that have been proven effective through rigorous evaluation and 25% allocation for research to develop additional models and strategies. Compare 2010 CAA, 123 Stat. at 3253 with 2018 CAA, 132 Stat. at 733.

In tandem with the creation of the TPP Program, HHS has sponsored the "TPP Evidence Review," i.e., an ongoing systematic review of TPP research to identify programs with evidence of effectiveness in reducing teen pregnancy, STIs, and associated sexual risk behaviors. ECF # 33-2. Every consolidated appropriations act since 2010 has made funding available to conduct the TPP Evidence Review. See, e.g. , 2010 CAA, 123 Stat. at 3253 (appropriating $4,455,000 "to carry out evaluations (including longitudinal evaluations) of teenage pregnancy prevention approaches"); Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113–235, 128 Stat. 2130, 2483 (2014) (appropriating $6.8 million for the same purpose); 2018 CAA, 132 Stat. at 733 (same). "The TPP Evidence Review is a joint effort sponsored by three divisions within [HHS]: the Office of the Assistant Secretary for

340 F.Supp.3d 1052

Planning and Evaluation, the Family and Youth Services Bureau within the Administration for Children and Families, and the Office of Adolescent Health within the Office of the Assistant Secretary for Health." ECF # 33-25, at 1. The TPP Evidence Review "identifies, assesses, and rates the rigor of program impact studies and describes the strength of evidence supporting different program models. Findings are used to identify program models meeting the criteria for the HHS List of Evidence-Based Teen Pregnancy Prevention Programs." ECF # 33-2, at 1. HHS contracts with Mathematica Policy Research ("Mathematica") to conduct the review.

In April 2010, Mathematica published the results of its initial review in which it identified 28 programs proven effective in preventing teen pregnancies, sexually transmitted infections ("STIs"), or sexual risk behaviors. See ECF # 33-2, at 7–8, 15. At HHS's request, Mathematica has updated its findings five additional times (in April 2012, July 2014, February 2015, April 2016, and April 2018), resulting in the identification of 20 additional programs showing evidence of effectiveness in preventing teen pregnancies, STIs, or sexual risk behaviors. ECF # 33-2, at 12; ECF # 33-25, at 1 ("the total number of programs meeting the review criteria for evidence of effectiveness is now 48"); Mathematica Policy Research, Review Protocol Version 5.0 at 1, https://tppevidencereview.aspe.hhs.gov/pdfs/TPPER_Review%20Protocol_ v5.pdf.

In 2009, through the Office of Adolescent Health ("OAH"), HHS issued a Tier 1 Funding Opportunity Announcement ("FOA"), soliciting applications for five-year grants for fiscal years 2010 through 2014 ("First Cohort"). See ECF # 33-3 ("2010 FOA"). In 2014, OAH issued two Tier 1 FOAs, soliciting applications for five-year grants for fiscal years 2015 through 2019 ("Second Cohort"). ECF # 33-8 ("2015 Tier 1A FOA"); ECF # 33-9 ("2015 Tier 1B FOA"). Under the 2010 Tier 1 FOA, funding was restricted to "evidence-based programs that have been shown to reduce teenage pregnancy, behavioral risk factors underlying teenage pregnancy, or other associated risk factors." ECF # 33-3, at 3–4. The 2010 Tier 1 FOA defined "[e]vidence-based program models" to mean "[p]rogram models for which systematic empirical research or evaluation has provided evidence of effectiveness." Id. at 44. Applicants...

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  • Planned Parenthood of Greater Wash. v. U.S. Dep't of Health & Human Servs., No. 18-35920
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 10 Enero 2020
    ...situated plaintiffs also sued HHS, and the three cases were decided within a day of each other. See id. ; Multnomah Cty. v. Azar , 340 F. Supp. 3d 1046 (D. Or. 2018) ; Planned Parenthood of N.Y.C., Inc. v. HHS , 337 F. Supp. 3d 308 (S.D.N.Y. 2018). In Multnomah County v. Azar , the district......
  • Brinkley ex rel. Herself v. Monterey Fin. Servs., LLC, Case No.: 16-cv-1103-WQH-WVG
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • 13 Septiembre 2018
    ...a repetition of the violation."). The Court finds that Brinkley does not have standing to pursue her requests for injunctive relief.4 340 F.Supp.3d 1046VII. ConclusionMonterey's Motion to Dismiss (ECF No. 100) is GRANTED IN PART and DENIED IN PART. Brinkley's claims for violations of Washin......
  • Aids Healthcare Found. v. Dep't of Pub. Health, No. 80532-1-I
    • United States
    • Court of Appeals of Washington
    • 19 Abril 2021
    ...is moot. AHF's reliance on Nat'l Ass'n of Reg'al Councils v. Costle, 564 F.2d 583 (D.C. Cir. 1977), and Multnomah County v. Azar, 340 F. Supp.3d 1046 (D. Or. 2018), is similarly misplaced. In Costle, the Environmental Protection Agency (EPA) had $150 million in contract authority to fund st......
  • Aids Healthcare Foundation v. Department of Public Health, 80532-1-I
    • United States
    • Court of Appeals of Washington
    • 19 Abril 2021
    ...claim is moot. AHF's reliance on Nat'l Ass'n of Reg'al Councils v. Costle, 564 F.2d 583 (D.C. Cir. 1977), and Multnomah County v. Azar, 340 F.Supp.3d 1046 (D. Or. 2018), is similarly misplaced. In Costle, the Environmental Protection Agency (EPA) had $150 million in contract authority to fu......
4 cases
  • Planned Parenthood of Greater Wash. v. U.S. Dep't of Health & Human Servs., No. 18-35920
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 10 Enero 2020
    ...situated plaintiffs also sued HHS, and the three cases were decided within a day of each other. See id. ; Multnomah Cty. v. Azar , 340 F. Supp. 3d 1046 (D. Or. 2018) ; Planned Parenthood of N.Y.C., Inc. v. HHS , 337 F. Supp. 3d 308 (S.D.N.Y. 2018). In Multnomah County v. Azar , the district......
  • Brinkley ex rel. Herself v. Monterey Fin. Servs., LLC, Case No.: 16-cv-1103-WQH-WVG
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • 13 Septiembre 2018
    ...a repetition of the violation."). The Court finds that Brinkley does not have standing to pursue her requests for injunctive relief.4 340 F.Supp.3d 1046VII. ConclusionMonterey's Motion to Dismiss (ECF No. 100) is GRANTED IN PART and DENIED IN PART. Brinkley's claims for violations of Washin......
  • Aids Healthcare Found. v. Dep't of Pub. Health, No. 80532-1-I
    • United States
    • Court of Appeals of Washington
    • 19 Abril 2021
    ...is moot. AHF's reliance on Nat'l Ass'n of Reg'al Councils v. Costle, 564 F.2d 583 (D.C. Cir. 1977), and Multnomah County v. Azar, 340 F. Supp.3d 1046 (D. Or. 2018), is similarly misplaced. In Costle, the Environmental Protection Agency (EPA) had $150 million in contract authority to fund st......
  • Aids Healthcare Foundation v. Department of Public Health, 80532-1-I
    • United States
    • Court of Appeals of Washington
    • 19 Abril 2021
    ...claim is moot. AHF's reliance on Nat'l Ass'n of Reg'al Councils v. Costle, 564 F.2d 583 (D.C. Cir. 1977), and Multnomah County v. Azar, 340 F.Supp.3d 1046 (D. Or. 2018), is similarly misplaced. In Costle, the Environmental Protection Agency (EPA) had $150 million in contract authority to fu......

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