Planned Parenthood of Greater Wash. v. U.S. Dep't of Health & Human Servs.
| Decision Date | 31 August 2018 |
| Docket Number | NO. 2:18-CV-0207-TOR,2:18-CV-0207-TOR |
| Citation | 337 F.Supp.3d 976 |
| Court | U.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; Alex Michael Azar II in his official capacity as Secretary of the U.S. Department of Health and Human Services; and Valerie Huber in her official capacity as Senior Policy Advisor for the Office of the Assistant Secretary for Health at the Department of Health and Human Services, Defendants. |
Anne W. Pearlman, Pro Hac Vice, Arnold & Porter Kaye Scholer LLP, Carrie Y. Flaxman, Pro Hac Vice, Richard Muniz, Pro Hac Vice, Planned Parenthood Federation of America, Washington, DC, Richard K. Eichstaedt, Center for Justice, Spokane, WA, Alice Huling, Pro Hac Vice, Drew Harker, Pro Hac Vice, Arnold & Porter Kay Scholer LLP, New York, NY, for Plaintiffs.
Gary Daniel Feldon, U.S. Department of Justice, Washington, DC, for Defendants.
ORDER GRANTING DEFENDANTS' CROSS-MOTION TO DISMISS
BEFORE THE COURT are Plaintiffs' Motion for Preliminary or Permanent Injunction and Summary Judgment (ECF No. 16); Defendants' Cross-Motion to Dismiss or, in the alternative, for Summary Judgment and Opposition to Plaintiffs' Motions for Preliminary Injunction and Summary Judgment (ECF Nos. 19; 20); and Unopposed Motion for Leave to Appear and File Brief as Amici Curiae in Support of Plaintiffs by Members of Congress (ECF No. 26). These matters were submitted for consideration without oral argument. The Court has reviewed the record and files herein, and is fully informed. For the reasons discussed below, Plaintiffs' Motion for Preliminary or Permanent Injunction and Summary Judgment (ECF No. 16) is DENIED ; Defendants' Cross-Motion to Dismiss or, in the alternative, for Summary Judgment and Opposition to Plaintiffs' Motions for Preliminary Injunction and Summary Judgment (ECF Nos. 19; 20) is GRANTED ; and Unopposed Motion for Leave to Appear and File Brief as Amici Curiae in Support of Plaintiffs by Members of Congress (ECF No. 26) is DENIED as moot .
On June 21, 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"); the Secretary of HHS, Alex Michael Azar II; and the Assistant Secretary for Health at HHS, Valerie Huber. ECF No. 1. Plaintiffs seek to enjoin Defendants from allocating funding under the 2018 Funding Opportunity Announcements ("FOAs") associated with the Teen Pregnancy Prevention Program ("TPP Program"). Id.
In the instant motion, Plaintiffs move to enjoin HHS from using the 2018 FOAs to select grantees and award funding. ECF No. 16 at 9. Defendants oppose Plaintiffs' Motion and request the Court dismiss Plaintiffs' claims or grant Defendants summary judgment. ECF No. 19 at 9.
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 motion to dismiss. The TPP was created by Congress for the 2010 fiscal year ("FY"). ECF No. 1 at ¶ 2. The appropriations languages states: "$110,000,000 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 and for the Federal costs associated with administering and evaluating such contracts and grants...." ECF Nos. 1 at ¶ 28-30; 16-2 at 180, 235 (Ex. 2); Consolidated Appropriations Act of 2010, Pub. L. No. 111-117, 123 Stat. 3253.
Congress directed that "$4,455,000 shall be available to carry out evaluations ... of teenage pregnancy prevention approaches." ECF No. 1 at ¶ 32; 123 Stat. 3253. Congress also directed the creation of the Office of Adolescent Health ("OAH"), which is responsible for implementing and administering the TPP Program. ECF No. 1 at ¶ 31. Plaintiffs assert that Congress has continuously funded the TPP Program at roughly the same levels, in the same manner, and with the same language. Id. at ¶ 33. Plaintiffs also allege that Congress has maintained separate funding streams for evidence-based programs and abstinence-only education programs. Id. at ¶ 34.
In April 2010, HHS, through OAH, issued two FOAs soliciting applications for Tier 1 and Tier 2 five-year grants. Id. at ¶ 37. The Tier 1 grant projects were designed to replicate programs that had demonstrated positive impact on key sexual behavior outcomes. Id. at ¶ 37. The Tier 2 grant programs were designed to develop and rigorously test new and innovative approaches to prevent teen pregnancy. Id. OAH funded 102 grantees through competitively awarded grants as part of the April 2010 FOAs. Id. at ¶ 43. Between FY 2010 and 2014, the projects reached more than half a million young people in 39 states and in the District of Columbia, trained a combined 6,100 facilitators, and created 3,800 community partnerships. Id. Plaintiffs allege that the number of evaluations with positive impacts exceeded the norm for large-scale evaluation efforts in other fields. Id. at ¶ 44. During the 2010 to 2015 grant cycle, teen pregnancy rates declined and many, including HHS, cited the TPP Program as contributing to this trend. Id. at ¶ 46.
In January 2015, HHS, through OAH, issued new FOAs for a second cohort of five-year grants. Id. at ¶ 47. A final award decision for the 2015 FOAs was made by the OAH Director. ECF No. 1 at ¶ 51. In July 2015, HHS awarded 81 new five-year TPP Program grants. Id. at ¶ 52. In May 2017, President Trump's proposed budget for FY 2018 called for eliminating the TPP Program and sought a $277 million investment in extending abstinence-only education. Id. at ¶ 57. On June 5, 2017, Valerie Huber was appointed as Chief of Staff for the Office of the Assistant Secretary of Health ("OASH"). Id. at ¶ 58. Ms. Huber is now the Senior Policy Adviser at OASH. Id.
In July 2017, HHS terminated all 81 TPP Program grants. ECF No. 1 at ¶ 63. In February 2018, nine of the grantees, including Plaintiffs, filed suit in four district courts to challenge the termination of their TPP Program grants. Id. The courts, including this Court, granted relief in favor of the grants and ordered HHS to process those grantees' applications for continued TPP Program funding. Id. Appeals are pending.
On March 23, 2018, Congress fully funded the TPP Program for FY 2018, directing that "$101,000,000 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 and for the Federal costs associated with administering and evaluating such contracts and grants...." ECF No. 1 at ¶ 64; Consolidated Appropriations Act of 2018, Pub. L. No. 115-141, 123 Stat. 733. Congress also appropriated $25 million and $75 million for two abstinence-only education programs. ECF No. 1 at ¶¶ 34, 65.
Plaintiffs allege that Defendants seek to repurpose the TPP Program to fund abstinence-only content rather than evidence-based programs through the FOAs. Id. at ¶ 67. Plaintiffs assert that the 2018 Tier 1 FOA does not require applicants to replicate programs that have been proven effective through rigorous evaluation. Id. at ¶ 70. It deletes the definition of "Evidence-Based Teen Pregnancy Prevention Programs." Id. It eliminates all references to HHS's evidence review and the list of evidence-based programs culled from nearly a decade of analysis and evaluation, even though HHS released a new installment of the evidence review the same week as Defendants issued the FOAs. Id. The phrase "evidence-based" appears nowhere in that FOA, and the words "proven" and "rigorous evaluation" only appear when describing evaluations that will occur after funding. Id.
The 2018 Tier 1 FOA declares that it will "fund the evaluation of replication strategies that focus on protective factors shown to prevent teen pregnancy, improve adolescent health, and address youth sexual risk holistically." ECF Nos. 1 at ¶ 71; 16-2 at 23 (Ex. 2). It instructs prospective grantees to replicate "a risk avoidance approach or a risk reduction approach" that incorporates the common characteristics of either the "Center for Relationship Education's Systematic Method for Assessing Risk-Avoidance Tool (SMARTool)" or the "Tool to Assess the Characteristics of Effective Sex and STD/HIV Education Programs" ("TAC"). ECF Nos. 1 at ¶ 71; 16-2 at 18. "Sexual Risk Avoidance" is defined as "the natural approach for an emphasis on sexual delay." ECF Nos. 1 at ¶ 72; 16-2 at 21. "Sexual Risk Reduction" is "the natural approach for an emphasis on cessation support." ECF Nos. 1 at ¶ 72; 16-2 at 21. "Sexual risk" means "engaging in any behavior that increases one's risk for any of the unintended consequences of sexual activity, including, but not limited to pregnancy." ECF Nos. 1 at ¶ 72; 16-2 at 21-22.
Plaintiffs argue that SMARTool and TAC have not been evaluated as a program or incorporate any of the findings of the evidence review or the TPP Program. ECF No. 1 at ¶¶ 74-75. Plaintiffs emphasize that TAC could not incorporate any of the findings given that it was created two years before the TPP Program. Id. at ¶ 75. The 2018 Tier 1 FOA and guidance issued by OAH make clear that prospective grantees " ‘have the freedom to choose any curriculum without regard to whether it has been proven effective, proven ineffective, or ever rigorously evaluated at all.’ " Id. at ¶ 76 (emphasis in original). It does not require "replication" of the selected curriculum. Id. at ¶ 77.
Plaintiffs insist that the substance of the 2018 Tier 1 FOA is nearly indistinguishable...
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Planned Parenthood of Greater Wash. v. U.S. Dep't of Health & Human Servs.
...FOAs because Planned Parenthood did not adequately plead injury-in-fact or redressability. Planned Parenthood of Greater Wash. and N. Idaho v. HHS , 337 F. Supp. 3d 976, 986, 988 (E.D. Wash. 2018).Two other groups of similarly situated plaintiffs also sued HHS, and the three cases were deci......