Planned Parenthood Greater Memphis Region v. Dreyzehner

• Decision Date: 17 February 2012
• Docket Number: No. 3:12–0139.,3:12–0139.
• Citation: 853 F.Supp.2d 724
• Parties: PLANNED PARENTHOOD GREATER MEMPHIS REGION and Planned Parenthood of Middle and East Tennessee, Plaintiffs, v. John J. DREYZEHNER, Commissioner, Tennessee Department of Health, Defendant.
• Court: U.S. District Court — Middle District of Tennessee

853 F.Supp.2d 724

PLANNED PARENTHOOD GREATER MEMPHIS REGION and Planned Parenthood of Middle and East Tennessee, Plaintiffs,

v.John J. DREYZEHNER, Commissioner, Tennessee Department of Health, Defendant.

No. 3:12–0139.

United States District Court,

M.D. Tennessee,

Nashville Division.

Feb. 17, 2012.

Adriane Theis, Charles K. Grant, Baker, Donelson, Bearman, Caldwell & Berkowitz,PC, Nashville, TN, Daniel Friedman, Elissa Preheim, Helene T. Krasnoff, Planned Parenthood Federation of America, Washington, DC, for Plaintiffs.

MEMORANDUM

WILLIAM J. HAYNES, JR., District Judge.

Plaintiffs, Planned Parenthood Greater Memphis Region (“PPGMR”) and Planned Parenthood of Middle and East Tennessee (“PPMET”), filed this action under 42 U.S.C. § 1983 against the Defendant John J. Dreyzehner, Commissioner of the Tennessee Department of Health (“TDOH”). Plaintiffs assert claims for alleged violations of Plaintiffs' First Amendment rights to associate and engage in constitutionally protected activities, as well as a violation of Plaintiffs' rights under the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs' claims arise from the revocations of their successful competitive bids for federal grants funded by the federal Centers for Disease Control and Prevention (“CDC”) for programs to prevent the transmission of HIV/AIDS. PPGMR also received a CDC-funded grant for Syphilis Elimination. Plaintiffs have historically been awarded such grants for these services. This bid process is administered by Defendant. After notices of their successful bids for these federal funds in 2012, TDOH later informed Plaintiffs of its shift to local governmental entities to provide the services under these grants.

Plaintiffs allege that the actual reason for rejection of Plaintiffs' successful bids is to punish Planned Parenthood for its provision of or affiliation with abortion services that are not the purposes of these grants. Plaintiffs contend that the Defendant's decisions are unconstitutional penalties on Plaintiffs' First Amendment right to advocate for abortion services and also violates the Equal Protection Clause of the Fourteenth Amendment by singling Plaintiffs out for different treatment without a legitimate state interest.

Before the Court is Plaintiffs' motion for a preliminary injunction (Docket Entry No. 2) arguing, in essence: (1) that Plaintiffs, their patients, and their communities will suffer irreparable injury from TDOH's recent revocations of their 2012 grant awards due to their reduced services for HIV and syphilis prevention programs, including elimination of some programs and jobs; (2) that women, men, and teenagers in Tennessee will lose access to these public health services; and (3) that preliminary injunctive relief is necessary to protect their rights under the First and Fourteenth Amendments.

In opposition, the Defendant contends that TDOH has engaged in government speech balancing factors under applicable law favor the Defendant's decision.

For the reasons stated at the conclusion of the hearing on Plaintiffs' motion for preliminary injunction and as set forth below, the Court concludes that Plaintiffs' motion for preliminary injunction should be granted.

A. Findings of Fact

1. The Federal Disease Prevention Grants

Under 42 U.S.C. § 247c, Congress established a system of grants for “prevention and control projects and programs” for sexually transmitted diseases (“STDs”). Congress vested the Secretary of Health and Human Services (“DHHS”) with the authority to award these grants. The Secretary delegated to the Center for Disease Control (“CDC”), an agency of DHHS, the administration of these grants. CDC utilizes the States, their political subdivisions and other entities to assist in the administration and award of these grants. In Tennessee, TDOH received grant funds and established HIV Prevention and SyphilisElimination programs. For 2012, TDOH elected to award grants to five Regional Community Planning Groups (“RCPGs”). (Docket Entry No. 9–3, at 3). Grants for the HIV Prevention and Syphilis Elimination programs are allocated by the RCPGs through a competitive bidding process. United Way of Metropolitan Nashville (“UW Nashville”) is the Lead Agency for Middle Tennessee. (Docket Entry No. 9–4 at 3). United Way of the Mid–South (“UW Mid–South”) is the Lead Agency for Southwest Tennessee, that includes the Memphis region. (Docket Entry No. 9–3, at 2).

Each RCPG has a “Lead Agency” that issues Requests for Proposals (“RFPs”) to organizations. To apply for grants, applicants must submit detailed proposals to an RCPG. A RCPG subcommittee reviews and scores the RFPs. Id. at 5; Docket Entry No. 9–4, at 6. The Lead Agency also analyzes the proposals for any improprieties or mistakes. The Lead Agency selects grantees, executes contracts for their services under the grant program, and forwards its selections to TDOH for approval. Approved agencies receive funding for the following calendar year. (Docket Entry No. 9–3, at 5; Docket Entry No. 9–4, at 6; Docket Entry No. 9–5, at 3). The Lead Agency receives and disburses grant funds to service providers approved by the RCPG. The Lead Agent also monitors subcontractors' invoices and performance. (Docket Entry No. 9–3; Docket Entry No. 9–4, at 5).

2. Plaintiffs' Grant Awards History

For the past decade, Plaintiffs were awarded CDC grants for the HIV Prevention program. For its most recent performance, in 2011, PPGMR tested over 3,800 individuals for HIV and conducted behavioral interventions with nearly 8,000 individuals. (Docket Entry No. 7, Chase Declaration at ¶ 6; Docket Entry No. 9–6 at 1). PPGMR has a highly successful HIV intervention program for homosexual men, a priority population, and developed a successful syphilis testing strategy for this same group. (Docket Entry No. 9–7, at 4). PPGMR collaborates with over 32 local agencies. (Docket Entry No. 9–7, at 4).

PPMET is one of only three HIV Prevention grantees in the Nashville region and is recognized for its high-quality programming and professional staff. (Docket Entry No. 8, Godwin Declaration at ¶ 6; Docket Entry No. 9–8). PPMET is the primary Nashville-area provider with expertise in working with high-risk youth, including teens who are incarcerated, in state custody, or attending alternative schools. (Docket Entry No. 9–8, at 3). In 2011, PPMET's grant proposal for its HIV Prevention program was to serve 1,250 individuals, but PPMET actually served 2,360. (Docket Entry No. 8, Godwin Declaration at ¶ 6). PPMET provides STD prevention education through relationships with over 100 organizations. (Docket Entry No. 9–8, at 1).

TDOH's evaluations of Plaintiffs' performance under these grants has been consistently positive. (Docket Entry No. 7, Chase Declaration at ¶ 13; Docket Entry No. 8, Godwin Declaration at ¶ 11). Between 2007 and 2011, three senior TDOH officials conducted at least four on-site inspections of PPGMR's HIV program and after each site evaluation, those TDOH officials did not propose any formal recommendations for changes.¹ Following a June 2011 site visit, TDOH's director for HIV Prevention Testing program commended PPGMR's “dedication to HIV prevention and the community” and stated that he “look[ed] forward to working with Planned Parenthood in the future.” (Docket Entry No. 9–12).

In 2010 and 2011, UW Nashville conducted six site visits to evaluate PPMET's HIV program and each evaluation was positive. TDOH conducted its evaluation following a December 2010 site visit.² UW Nashville's most recent of these favorable evaluations was on December 14, 2011, two weeks before the State denied approval for PPMET's participation in the HIV Prevention program. (Docket Entry No. 9–18).

3. The 2012 CDC Grants

On May 27, 2011, the Southwest Tennessee RCPG and the Middle Tennessee RCPG issued RFPs for the 2012 HIV Prevention program. (Docket Entry No. 9–3, at 19; Docket Entry No. 9–4, at 19). On June 29, 2011, PPGMR submitted its detailed proposal for HIV program funding. (Docket Entry No. 7, Chase Declaration at ¶ 7; Docket Entry No. 9–6). On June 20, 2011, PPMET submitted its 41–page proposal for an HIV program funding bid. (Docket Entry No. 9–8).

By letter dated August 12, 2011, “[o]n behalf of the State”, UW Mid–South notified PPGMR of its approval of PPGMR's 2012 HIV Prevention grant proposal of $73,000. (Docket Entry No. 9–20). August 24, 2011, UW Nashville notified PPMET of its approval of PPMET's 2012 HIV Prevention grant proposal of $41,500 “as approved by the Tennessee Department of Health, HIV/AIDS/STD Section, HIV Prevention Section.” (Docket Entry No. 9–21). In September 2011, PPMET and UW Nashville executed a contract for these services. (Docket Entry No. 9–22). PPMET planned to serve at least another 1,100 individuals with its HIV Prevention funds, reaching at least 500 through group level interventions and 600 through its outreach efforts. (Docket Entry No. 8, Godwin Declaration at ¶¶ 7, 13–15). None of these funds would have been used for any abortion-related services. (Docket Entry No.7, Chase Declaration at ¶ 14; Docket Entry No. 8, Godwin Declaration at ¶ 12).

At the State's request, PPGMR also applied for Syphilis Elimination grant funds for 2011 and 2012. During the course of 2011, a TDOH representative approached PPGMR, explaining that its participation was desirable because, among its other qualifications, it is the only subgrantee whose network of community partners includes an agency serving the gay community.³ (Docket Entry No. 7, Chase Declaration at ¶ 10). By letter dated August 25, 2011, UW of the MidSouth informed PPGMR of its approval “[o]n behalf of the State” of PPMGR's proposal for Syphilis Elimination funding for 2011 and 2012. (Docket Entry No. 9–23). UW Mid–South and PPGMR subsequently executed a contract for grant funding for October 1, 2011 through December 31, 2011 for $32,000, with a renewal option for the 2012 calendar year. (Docket Entry No....