Planned Parenthood of N.Y.C., Inc. v. U.S. Dep't of Health & Human Servs.

• Decision Date: 30 August 2018
• Docket Number: 18 Civ. 5680 (NRB)
• Citation: 337 F.Supp.3d 308
• Parties: PLANNED PARENTHOOD OF NEW YORK CITY, INC., Plaintiff, 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; Valerie Huber, in her official capacity as Senior Policy Advisor for the Office of the Assistant Secretary for Health at the U.S. Department of Health and Human Services, Defendants.
• Court: U.S. District Court — Southern District of New York

337 F.Supp.3d 308

PLANNED PARENTHOOD OF NEW YORK CITY, INC., Plaintiff,

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; Valerie Huber, in her official capacity as Senior Policy Advisor for the Office of the Assistant Secretary for Health at the U.S. Department of Health and Human Services, Defendants.

18 Civ. 5680 (NRB)

United States District Court, S.D. New York.

Signed August 30, 2018

Counsel for Plaintiff: Ada Victoria Anon, Marcus Aaron Asner, Drew A. Harker, Alice Clare Campbell Huling, Arnold & Porter Kaye Scholer LLP, Carrie Y. Flaxman, Richard Muniz, Planned Parenthood Federation of America

Counsel for Defendants: Benjamin Henry Torrance, U.S. Attorney's Office, SDNY

Counsel for Amici Curiae: Boris Bershteyn, Micah Festa Fergenson, Natalie Margaret Gabrenya, Skadden, Arps, Slate, Meagher & Flom LLP

MEMORANDUM AND ORDER

NAOMI REICE BUCHWALD, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Plaintiff Planned Parenthood of New York City, Inc. ("PPNYC") challenges the issuance by the U.S. Department of Health and Human Services ("HHS") of two Funding Opportunity Announcements (the "2018 FOAs") that describe the terms whereby applicants can seek grant funding under the Teen Pregnancy Prevention ("TPP") Program. Plaintiff moves for summary judgment under Fed. R. Civ. P. 56(a), and seeks either a permanent injunction preventing defendants from implementing the FOAs or a preliminary injunction pursuant to Section 705 of the Administrative Procedure Act ("APA") and Fed. R. Civ. P. 65. Defendants move to dismiss for lack of standing under Fed. R. Civ. P. 12(b)(1), and cross-move for summary judgment.

The governing statute for the TPP Program establishes requirements for two tiers of grants: Three-quarters of the funding is allotted to Tier 1 Grants, which are for "replicating programs that have been proven effective through rigorous evaluation to reduce teenage pregnancy." The other quarter is designated for Tier 2 Grants to "develop, replicate, refine, and test additional models and innovative strategies for preventing teenage pregnancy." Applications for both tiers of grants are solicited through FOAs.

Plaintiff has been the beneficiary of TPP funding since the Program's inception in 2010, but alleges that it is now ineligible for and can no longer compete for Tier 1 and Tier 2 grants as a result of new FOAS adopted by HHS that it contends are contrary to law and arbitrary and capricious. We first address whether plaintiff has standing to challenge HHS's actions, and conclude that it does. We then consider whether the matter is committed to agency discretion and therefore unreviewable, and conclude that it is not. Next, we find that the adoption of the FOAs constitutes final agency action.

Having resolved these threshold issues, we turn to the merits. We hold that the 2018 Tier 1 FOA is contrary to the applicable statute because the evaluative tools that applicants for Tier 1 grants must "replicat[e]" are not "programs" and have not "been proven effective through rigorous evaluation." We reach a different conclusion as to the 2018 Tier 2 FOA because these tools and HHS's "public health priorities" are not inconsistent with Tier 2's statutory mandate to "test additional models and innovative strategies." Accordingly, we grant plaintiff's motion for summary judgment in part and permanently enjoin defendants from using the 2018 Tier 1 FOA as the basis for awarding or disbursing TPP Program funds, and grant defendants' motion for summary judgment as it relates to the 2018 Tier 2 FOA.

II. BACKGROUND

The relevant facts of this case are largely uncontested; we will note any facts in dispute.¹

Since 2010, Congress has annually allocated funding to HHS for "grants to public and private entities to fund medically accurate and age appropriate programs that reduce teen pregnancy." Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, 132 Stat. 348, 733 (2018) ("2018 CAA"); Consolidated Appropriations Act, 2010, Pub. L. No. 111-117, 123 Stat. 3034, 3253 ("2010 CAA"). After setting aside no more than 10 percent of this funding for training and administration, funds are allocated to two categories of TPP grants: (1) 75 percent of the remaining funding to Tier 1 grants "for replicating programs that have been proven effective through rigorous evaluation to reduce teenage pregnancy," and (2) 25 percent to Tier 2 grants for "research and demonstration grants to develop, replicate, refine, and test additional models and innovative strategies for preventing teenage pregnancy." 2018 CAA, 132 Stat. at 733. This statutory language has remained constant since 2010. See id.; 2010 CAA, 123 Stat. at 3253; see also Healthy Teen Network v. Azar, 322 F.Supp.3d 647, 658 n.15, 2018 WL 1942171, at *9 n.15 (D. Md. 2018) ("[A]ll consolidated appropriations acts since the one passed in 2010 use the same language to fund the TPP program.").

HHS has solicited applications for TPP grants through FOAs, released in 2010, 2015, and as at issue here, 2018. The 2010 Tier 1 FOA identified 28 evidence-based programs that independent research by Mathematica Policy Research ("Mathematica") had shown to be effective.² 2010 Tier 1 FOA, Torrance Decl. Ex. A at 7, 38, ECF No. 46-1. Applicants for Tier 1 funding were required to "maintain fidelity to the original evidence-based program model with minimal adaptations." Id. at 8. However, if a program made "[s]ignificant adaptations," applicants would have been required to apply under Tier 2. Id. Applicants' programs were obligated to replicate the "core components" of the curriculum and implement one of the 28 evidence-based programs. Id.

The 2010 Tier 2 FOA called for applications "that propose to study a broad range of approaches to teenage pregnancy prevention," even if they had not previously been rigorously evaluated, with a particular focus on grants to programs "that clearly explain the potential to demonstrate evidence and which could eventually be replicated." 2010 Tier 2 FOA, Torrance Decl. Ex. B at 7-8, ECF No. 46-2.

In 2010, plaintiff was awarded a five-year Tier 1 grant of $611,823 annually to replicate one of the 28 evidence-based programs, "Making Proud Choices!," in schools, after-school programs, and community-based organizations in Manhattan, Brooklyn, and the Bronx. Compl. ¶ 87; 56.1 Stmt. ¶ 48; Barnette Decl. ¶ 9, ECF No. 39; Barnette Decl. Ex. C, ECF No. 39-3. In 2013, plaintiff received $262,541 in supplemental funding to expand to Queens. Compl. ¶ 87; 56.1 Stmt. ¶ 49. Plaintiff represents that it targeted 37 low-income and high pregnancy rate zip codes and reached 6,200 young people over the course of this five-year grant. Compl. ¶ 87.

HHS issued its second set of FOAs in 2015, splitting Tier 1 into two parts. Tier 1A focused on "Capacity Building to Support Replication of Evidence-Based Teen Pregnancy Prevention Programs," while Tier 1B focused on "Replicating Evidence-Based Teen Pregnancy Prevention Programs to Scale in Communities with the Greatest Need." See Barnette Decl. Ex. E, ECF No. 39-5; Barnette Decl. Ex. F, ECF No. 39-6. The 2015 Tier 1B FOA listed 36 evidence-based programs that had been designated as implementation ready and eligible for replication. 2015 Tier 1B FOA at 95-100, Barnette Decl. Ex. F at 98-103, ECF No. 39-6. In order to qualify, these programs needed to "1. Have been identified as having evidence of effectiveness by the HHS TPP Evidence Review ... and 2. Have been assessed by the HHS TPP Evidence Review as being implementation ready, meaning that the program has clearly defined curricula and components, necessary staff supports and training, and specified guidelines and tools for monitoring fidelity." Id. at 14-15.

Tier 2 was split into three sub-categories under the 2015 FOAs³ : (1) Supporting and Enabling Early Innovation to Advance Adolescent Health and Prevent Teen Pregnancy (Tier 2A); (2) Rigorous Evaluation of New or Innovative Approaches to Prevent Teen Pregnancy (Tier 2B); and (3) Effectiveness of TPP Programs Designed Specifically for Young Males (Tier 2C). See Tier 2B FOA at 3, Torrance Decl. Ex. D at 6, ECF No. 46-5. The stated purpose of these Tier 2 FOAs was "to increase the number of evidence-based TPP interventions available by rigorously evaluating new or innovative approaches" and to "expand[ ] the evidence base for the field of TPP by funding rigorous evaluations of innovative interventions designed to address gaps in the existing evidence." Id. at 6-7.

In 2015, plaintiff submitted an application for Tier 1B funding, but was not selected as a grantee. 56.1 Stmt. ¶ 50; Barnette Decl. ¶ 14, ECF No. 39. However, since 2016, plaintiff has received annual funding as a sub-grantee of Texas A & M University's Integrating Teen Pregnancy Prevention Innovative Practices project, which had been awarded a Tier 2A grant. 56.1 Stmt. ¶ 51; Barnette Decl. ¶ 15, ECF No. 39; Barnette Decl. Ex. I, ECF No. 39-9; Barnette Decl. Ex. J, ECF No. 39-10.

Plaintiff represents that the current administration has taken several steps to "dismantle" the TPP Program. Compl. ¶¶ 54-64. First, in May 2017, HHS's proposed budget sought to eliminate all funding for the the TPP Program. Compl. ¶ 55 (citing HHS, General Departmental Management Budget at 91, https://www.hhs.gov/sites/default/files/combined-general-departmentmanagement.pdf). On March 23, 2018, however, Congress allocated $101 million to the TPP Program in the 2018 CAA. Compl. ¶ 62. Second, in July 2017, HHS announced that it would be terminating all TPP Program grants in June 2018, two years before their scheduled end date. Compl. ¶ 61. Various grantees filed four separate lawsuits, each of which was resolved in their favor. Id. (citing Planned Parenthood of Greater Wash. & N. Idaho v. HHS, No. 18 Civ. 55 (TOR), 328 F.Supp.3d 1133, 1137–40, 2018 WL 1934070, at *1-2 (E.D. Wash. Apr. 24, 2018) ; King Cty. v. Azar, 320...