Planned Parenthood of Greater Wash. & N. Idaho v. U.S. Dep't of Health & Human Servs.

Decision Date24 April 2018
Docket NumberNO. 2:18-CV-0055-TOR,2:18-CV-0055-TOR
Citation328 F.Supp.3d 1133
CourtU.S. District Court — District of Washington
Parties PLANNED PARENTHOOD OF GREATER WASHINGTON AND NORTH IDAHO; Planned Parenthood of the Great Northwest and The Hawaiian Islands ; and Planned Parenthood of the Heartland, Plaintiffs, v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES and Alex Michael Azar II in his official capacity as Secretary of the U.S. Department of Health and Human Services, Defendants.

Alice Huling, Drew Harker, Pro Hac Vice, Arnold & Porter Kay Scholer LLP, New York, NY, Allyson Himelfarb, Andrew T. Tutt, Nathaniel E. Castellano, Pro Hac Vice, Arnold & Porter Kaye Scholer LLP, Carrie Y. Flaxman, Richard Muniz, Pro Hac Vice, Planned Parenthood Federation of America, Washington, DC, Richard K. Eichstaedt, Center for Justice, Spokane, WA, for Plaintiffs.

Jonathan E. Jacobson, Michael Joseph Gerardi, Michael John Quinn, United States Department of Justice, Washington, DC, for Defendants.


THOMAS O. RICE, Chief United States District Judge

BEFORE THE COURT are Plaintiffs' Motion for Preliminary Injunctive Relief (ECF No. 24) and Defendants' Opposition to Plaintiffs' Motion for a Preliminary Injunction and Cross-Motion to Dismiss or for Summary Judgment (ECF No. 27). This matter was heard with oral argument on April 24, 2018. The Court has reviewed the record and files herein, considered the parties' arguments, and is fully informed. For the reasons discussed below, Plaintiffs' Motion for Preliminary Injunctive Relief (ECF No. 24) is GRANTED ; Defendants' Motion to Dismiss (ECF No. 27) is GRANTED in part and DENIED in part ; and Defendants' Motion for Summary Judgment (ECF No. 27) is DENIED .


On February 15, 2018, Plaintiffs Planned Parenthood of Greater Washington and North Idaho, Planned Parenthood of the Great Northwest and Hawaiian Islands, and Planned Parenthood of the Heartland (collectively "Planned Parenthood") filed this Complaint against Defendants United States Department of Health and Human Services ("HHS") and the Secretary of HHS, Alex Michael Azar II. ECF No. 1. Plaintiffs seek to prevent and declare unlawful HHS's decision to terminate Plaintiffs' grant agreements and end the Teen Pregnancy Prevent Program ("TPP Program").Id. at ¶ 1. Plaintiffs assert claims for declaratory and injunctive relief under the Administrative Procedure Act ("APA"), Establishment Clause, and Due Process Clause. Id. at ¶¶ 100-31.

In the instant motion, Plaintiffs move for preliminary injunctive relief enjoining Defendants from terminating without cause Plaintiffs' five-year cooperative agreements under the TPP Program. ECF No. 24 at 8. Defendants oppose Plaintiffs' motion for a preliminary injunction and request the Court dismiss or enter summary judgment on all of Plaintiffs' claims. ECF No. 27.


Unless otherwise indicated, the following facts are primarily drawn from Plaintiffs' Complaint and documents appended to the instant motion, and are accepted as true for the purposes of the motions for preliminary injunction and to dismiss. The TPP was created by Congress for the 2010 fiscal year ("FY"). ECF No. 1 at ¶ 2. Congress has continued to appropriate funds for the TPP Program since 2010 at approximately $110 million annually. Id. at ¶¶ 26-27, 31. The appropriations language explains that funds "shall be for making competitive contracts and grants to public and private entities to fund medically accurate and age appropriate programs that reduce teen pregnancy...." Id. at ¶ 26; 27-2 at 353; Pub.L. 115-141, 132 Stat. 348, 733 (Consolidated Appropriations Act, 2018).

HHS's Office of Adolescent Health (OAH) is responsible for implementing and administering the TPP Program. ECF No. 1 at ¶ 30. In April 2015, HHS issued Funding Opportunity Announcements (FOAs) for the TPP Program. Id. at ¶ 34. The FOAs required a detailed work plan over the "five-year project period." Id. at ¶ 42; 27-2 at 11 (Ex. A). The FOAs state, "Each year of the approved project period, grantees are required to submit a noncompeting application which includes a progress report for the current budget year, and work plan, budget and budget justification for the upcoming year." ECF No. 27-2 at 78.

In July 2015, HHS awarded 81 new TPP Program grants. ECF No. 1. at ¶ 40. In the three TPP Programs at issue, the Notice of Award ("NOA") forms issued in 2015 and again in 2016 listed the project period as July 1, 2015 through June 30, 2020. ECF Nos. 1 at ¶ 41; 24-3 (Ex. A-B); 24-5 (Exs. A-C); 24-6 (Exs. E-F). The budget period in these awards were only for the relevant year. ECF Nos. 24-3 (Ex. A-B); 24-5 (Exs. A-C); 24-6 (Exs. E-F). Plaintiffs assert that over the first three years of the latest round of the TPP Program funding, HHS consistently commended all three Plaintiffs for their implementation of their respective TPP Program projects. ECF No. 1 at ¶ 55.

In July 2017, HHS awarded FY 2017 funds to Plaintiffs. Id. at ¶ 76. The NOAs for 2017 state, "This award also shortens the project period to end on June 30, 2018 at the end of this budget year." ECF Nos. 1 at ¶ 77; 24-3 at 54 (Ex. D); 24-5 at 43 (Ex. C); 24-6 at 565 (Ex. K). On August 1, 2017, Plaintiffs each separately wrote to HHS challenging the alleged termination and Defendants did not respond. ECF No. 1 at ¶¶ 79-80.

I. Injunction

Pursuant to Federal Rule of Civil Procedure 65, the Court may grant preliminary injunctive relief in order to prevent "immediate and irreparable injury." Fed. R. Civ. P. 65(b)(1)(A). Rule 65 also states that "[b]efore or after beginning the hearing on a motion for a preliminary injunction, the court may advance the trial on the merits and consolidate it with the hearing." Fed. R. Civ. P. 65(a)(2).

At oral argument, the Court questioned the parties as to whether there was any reason not to make this action a final injunction. Defendants asserted that Plaintiffs had not sought a permanent injunction. On reply, Plaintiffs clarified that their priority is a preliminary injunction, but see no reason why the resolution should not be final if the Court is ready to resolve the case. The Court finds that there is no reason not to decide the issue as a final injunction as it appears that the Defendants do not have any additional evidence concerning the decision with respect to Plaintiffs' APA claims. Accordingly, the Court considers Plaintiffs' request for a preliminary injunction as a final injunction.

To be entitled to a permanent or final injunction, a plaintiff must demonstrate: "(1) actual success on the merits; (2) that it has suffered an irreparable injury; (3) that remedies available at law are inadequate; (4) that the balance of hardships justify a remedy in equity; and (5) that the public interest would not be disserved by a permanent injunction." Indep. Training & Apprenticeship Program v. California Dep't of Indus. Relations , 730 F.3d 1024, 1032 (9th Cir. 2013). "The standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success." Id. (quoting Amoco Prod. Co. v. Village of Gambell , 480 U.S. 531, 546 n.12, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) ). Accordingly, the Court's analysis remains largely the same as if it were considering the Plaintiffs' original motion for preliminary injunction.

A plaintiff must satisfy each element for injunctive relief. Yet, the Ninth Circuit uses a "sliding scale" under which the injunction may be issued if there are serious questions going to the merits and the balance of hardships tips sharply in the plaintiff's favor, along with two other Winter factors. All. forthe Wild Rockies v. Cottrell , 632 F.3d 1127, 1131 (9th Cir. 2011) ("[A] stronger showing of one element may offset a weaker showing of another."); see also Farris v. Seabrook , 677 F.3d 858, 864 (9th Cir. 2012) ("We have also articulated an alternate formulation of the Winter test, under which serious questions going to the merits and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest." (internal quotation marks and citation omitted) ).

A. Actual Success on the Merits
1. APA Claims

Plaintiffs insist that HHS's actions must be set aside under the APA as HHS's conduct is arbitrary and capricious, and contrary to law. ECF Nos. 1 at ¶¶ 100-13; 24 at 17.

a. Grant Policy Statement Applicability

As an initial matter, Plaintiffs argue that the GPS is not a binding regulation, but merely informal internal guidance. ECF No. 29 at 20. The GPS states:

Recipients are not directly subject to the requirements of HHS Grants Policy Directives and implementing HHS Grants Administration Manuals ..., which are internal documents guiding HHS operations. If an OPDIV [HHS Operating Divisions] implements a requirement in an internal document that does affect recipients, it will not do so by citing that document; rather, the requirement is placed on the recipient through explicit coverage in the NoA.

ECF No. 27-2 at 111 (Ex. B). The GPS explains general terms and conditions that are common across all OPDIVs and apply "unless there are statutory, regulatory, or award-specific requirements to the contrary (as specified in individual Notices of Award)." Id. at 110. The controlling NOAs specify that the order of precedence for conflicting or inconsistent policies applicable to the grants are: (1) grant program legislation; (2) grant program regulations; (3) award notice including terms and conditions; and (4) federal administrative requirements, costs principles and audit requirements applicable in this grant. ECF No. 24-5 at 14 (item 16).

Defendants respond that the...

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