United States District Court, District of Columbia
L. FRIEDRICH, United States District Judge.
the Court is the Plaintiff's Motion for a Preliminary
Injunction. Dkt. 2. For the following reasons, the Court will
deny the motion and order the parties to propose an expedited
schedule for resolving this case on its merits.
the Head Start Act, the U.S. Department of Health and Human
Services (“HHS”) provides grants to tribes that
implement Head Start and Early Head Start programs for young
children and their families. 42 U.S.C. § 9831 et
seq.; Compl. ¶ 1, Dkt. 1. Qualified organizations
can receive grants for up to 80% of Head Start program costs.
42 U.S.C. § 9835(b). The grants are administered by a
division of HHS, the Administration of Children and Families
(“ACF”). Compl. ¶ 2.
plaintiff, the Navajo Nation, is a federally recognized
Indian tribe whose reservation spans parts of Arizona, New
Mexico, and Utah. Id. ¶ 11. It runs Head Start
and Early Head Start programs to provide education services
to its young members and residents and their families.
Id. ¶ 1. The programs are funded primarily by
an ACF-administered federal grant, No. 90C19889 (“the
Grant”), which is at the center of this case.
Id. ¶ 2; Aff. of Dr. Elvira Bitsoi
(“Aff.”) ¶ 3, Dkt. 3-1. The Grant's
budgetary period, or fiscal year, starts on March 1 each year
and runs through February of the next year. Compl. ¶ 17.
The Navajo Nation must submit an annual renewal application
for the Grant, which is due on December 1 before the new
fiscal year starts. Id. ¶ 18. Pursuant to the
Grant in recent fiscal years, the Navajo Nation has received
$23, 075, 043 annually. Id. ¶ 3.
the Head Start Act, however, grants are not static from year
to year. The Act provides specific procedures for adjusting
grants to Head Start programs that suffer from chronic
under-enrollment, as Navajo Head Start does. Grantees must
self-report enrollment each month, 42 U.S.C. §
9836a(h)(2), and HHS must conduct a semiannual review to
determine which grantees have been under-enrolled for four
consecutive months, id. § 9836a(h)(3). HHS and
each under-enrolled grantee must then develop a plan and
timetable for reducing under-enrollment, and the grantee
“shall immediately implement the plan.”
Id. § 9836a(h)(3), (4). If the grantee does not
reach at least 97% enrollment within twelve months, HHS may
designate the grantee as chronically under-enrolled and
“recapture, withhold, or reduce” the base grant
by a percentage calculated as the difference between funded
and actual enrollment. Id. § 9836a(h)(5)(A).
Also, HHS may waive or decrease the adjustment in specified
circumstances. Id. § 9836a(h)(5)(B). If HHS
adjusts funding for an Indian Head Start program, HHS must
redistribute the resulting funds to other Indian Head Start
programs by the end of the following fiscal year.
Id. § 9836a(h)(6).
followed these statutory procedures to adjust the Navajo
Grant for fiscal year 2018, which will run from March 1, 2018
to February 28, 2019. Decl. of Angie Godfrey
(“Decl.”) ¶¶ 7-13, Dkt. 11-1. Although
HHS stated in early September that the Grant would not change
for fiscal year 2018, see Compl. ¶ 19, the
agency changed course a few weeks later. By letter on
September 26, 2017, HHS informed the Nation that HHS had
decided to reduce the Grant to $15, 766, 194 for fiscal year
2018, based on an enrollment level of 1, 396 students in
Navajo Head Start, not the previously funded enrollment of 2,
068 Head Start students. Decl. Ex. E, Dkt. 11-2 at 14-15.
Despite implementing the 12-month remediation plan required
by the Head Start Act, the Nation had been unable to achieve
or maintain its funded enrollment of 2, 068 Head Start
students; the reduction by 672 students “represented
the average number of vacant slots over a 12 month
period.” Decl. ¶ 14; see also Decl. Ex.
A, Dkt. 11-2 at 1 (listing reported enrollment for each month
since March 2015).0F In additional letters on October 5,
November 22, and December 4, 2017, HHS reiterated that the
Grant would be $15, 766, 194 for fiscal year 2018.
See Decl. Exs. F, I, & J, Dkt. 11-2 at 16, 25,
27. The letter of December 4 stated that, if the Navajo
Nation submitted a funding application for a higher figure,
HHS would “return the application as unfundable and
request a revised application for the correct funding and
enrollment levels.” Id. ¶ 22.
Navajo Nation's funding application for fiscal year 2018
was due on December 1, 2017, but the Nation received a 45-day
extension. Id. ¶ 23. The application was
submitted on January 12, 2018, but it again requested the
prior funding level of $23, 075, 043. Id. ¶ 24.
HHS refused the Navajo Nation's request. By letter on
January 19, 2018, HHS again advised the Navajo Nation that
the Grant would be $15, 766, 194 for fiscal year 2018. Decl.
Ex. M, Dkt. 11-2 at 32-33. HHS also reiterated that funding
was reduced because the Navajo Head Start program was
chronically and severely under-enrolled. See id.
February 22, 2018, the Navajo Nation filed its complaint in
this action. Dkt. 1. The complaint asserted that (1) HHS-by
not promulgating regulations permitting grantees like the
Nation to appeal grant reductions in cases of
under-enrollment-violated a provision of the Head Start Act
that directs HHS to prescribe procedures “to assure
that financial assistance . . . may be terminated or
reduced” after reasonable notice and an appeal hearing,
see 42 U.S.C. § 9841(a)(3); Compl. ¶¶
27-30; and (2) HHS then violated the Administrative Procedure
Act by reducing the Navajo Grant without following
statutorily mandated procedures, see 5 U.S.C. §
706(2); Compl. ¶¶ 31-33.
same day, the Nation moved for a preliminary injunction to
prevent HHS from reducing the Grant below $23, 075, 043
pending the disposition of this case. Mot. for Prelim. Inj.
at 1, Dkt. 2. The motion was accompanied by an affidavit by
the Acting Assistant Superintendent of Navajo Head Start,
see Dkt. 3-1, and the motion requested a decision
before March 1, 2018, when fiscal year 2018 begins. Pl.'s
Mem. at 8, Dkt. 2-1.
Navajo Nation effected service of the complaint and summons
on the U.S. Attorney and the U.S. Attorney General on
February 9, 2018, see Dkt. 6 & 7, and on the HHS
Secretary on February 12, 2018, see Dkt. 8. But the
Navajo Nation did not immediately serve the motion for a
preliminary injunction. See Plaintiff's Response
to Defendant's Notice (Feb. 21, 2018), Dkt. 10 at 1-2
(“Although copies of the motion for preliminary
injunction . . . were prepared and were supposed to be
included with the summons and complaint, . . . they were
inadvertently omitted.”). As a result, the
government's deadline for opposing the motion was not
triggered. See Local Civil Rule 65.1(c). On February
21, 2018, the Court ordered the Nation to serve the motion
immediately. See Minute Order of February 21, 2018.
The Court also set a briefing schedule for the motion in
order to facilitate a decision before March 1, 2018.
Id. Accordingly, HHS filed an opposition brief
accompanied by the declaration of the Regional Program
Manager who oversees Head Start grants to American Indian
programs. Dkt. 11. The Nation then filed a reply brief
accompanied by a supplemental affidavit.1F The Court now
resolves the motion.
preliminary injunction is “an extraordinary remedy that
may only be awarded upon a clear showing that the plaintiff
is entitled to such relief.” Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 22 (2008). To warrant a
preliminary injunction, a plaintiff “must make a clear
showing” that (1) he “is likely to succeed on the
merits”; (2) he “is likely to suffer irreparable
harm in the absence of preliminary relief”; (3) the
“balance of equities” tips in his favor; and (4)
“an injunction is in the public interest.”
Id. at 20; League of Women Voters of United
States v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016). The
last two factors “merge when the Government is the
opposing party.” Nken v. Holder, 556 U.S. 418,
435 (2009). The plaintiff “bear[s] the burdens of
production and persuasion” when moving for a
preliminary injunction. Qualls v. Rumsfeld, 357
F.Supp.2d 274, 281 (D.D.C. 2005) (citing Cobell v.
Norton, 391 F.3d 251, 258 (D.C. Cir. 2004)).
the Supreme Court's decision in Winter, courts
weighed the preliminary injunction factors on a sliding
scale, allowing a weak showing on one factor to be overcome
by a strong showing on another factor.” Standing
Rock Sioux Tribe v. U.S. Army Corps of Eng'rs, 205
F.Supp.3d 4, 26 (D.D.C. 2016). The D.C. Circuit, however, has
“suggested, without deciding, that Winter
should be read to abandon the sliding-scale analysis in favor
of a ‘more demanding burden' requiring a plaintiff
to independently demonstrate both a likelihood of success on
the merits and irreparable ...