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Healthy Futures of Texas v. Department of Health and Human Services

United States District Court, District of Columbia

June 1, 2018

HEALTHY FUTURES OF TEXAS, individually and on behalf of all others similarly situated, Plaintiff,


          KETANJI BROWN JACKSON, United States District Judge

         Plaintiff Healthy Futures of Texas (“Healthy Futures”) has sued the United States Department of Health and Human Services (“HHS”) and HHS Secretary Alex Azar (collectively, “Defendants”) on behalf of itself and similarly situated individuals. (See Compl., ECF No. 1.) Healthy Futures is a nonprofit organization that received a five-year grant from HHS under the federal Teen Pregnancy Prevention Program (“TPPP”) in 2015 to fund a teen pregnancy prevention program near the Texas-Mexico border (see Id. ¶ 8), and its complaint claims that HHS's unexplained decision to end prematurely the grant funding that HHS authorized for Healthy Futures and dozens of other non-profit organizations (in 2018) was arbitrary and capricious agency action that violated the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (see Id. at ¶¶ 53-57 (citing 5 U.S.C. § 706(2)(A)).) Before this Court at present is the Motion for Class Certification that Healthy Futures filed along with its complaint; the motion proposes that this Court “certify this case as a class action under Federal Rule of Civil Procedure 23(b)(2)[.]” (Pl.'s Mem. in Supp. of Mot. for Class Certification (“Pl.'s Mem.”), ECF No. 6, at 4.)[1]

         As amended, Healthy Futures's motion for class certification defines the putative class as

[a]ll entities awarded Teen Pregnancy Prevention Program grants by the Department of Health and Human Services (HHS) in 2015, with five-year project periods, whose grants HHS purported to “shorten, ” effective June 30, 2018.

(Compl. at 12-13.)[2] Moreover, and notably, Healthy Futures's motion expressly excludes the similarly-situated TPPP grant recipients who filed suit against HHS in four prior cases: Policy and Research, LLC v. HHS., No. 18-cv-346, 2018 WL 2184449, at *1-13 (D.D.C. May 11, 2018), Planned Parenthood of Greater Washington and Northern Idaho v. HHS, No. 2:18-cv-0055-TOR, 2018 WL 1934070 (E.D. Wash. Apr. 24, 2018), King County v. Azar, No. 18-cv-00242 (W.D. Wash. May 29, 2018), and Healthy Teen Network v. Azar, No. 18-cv-00468 (D. Md. Apr. 25, 2018). (See Pl.'s Mem. at 4.) HHS opposes Healthy Futures's motion for class certification on the grounds that the proposed class definition impermissibly carves out these TPPP grantees (see Defs.' Opp'n to Pl.'s Mot. for Class Certification (“Defs.' Opp'n”), ECF No. 17, at 3-4 (calling the exception of grantees with resolved prior claims an unauthorized “opt-out mechanism”)), and the agency further maintains that there is no way of revising the class definition to avoid improperly interfering with litigation in those original four cases (see Id. at 5 (arguing that removal of the carve outs would result in a class that “improperly interfere[s] with the litigation of similar issues in other judicial districts” (internal quotation marks and citation omitted))).

         Upon consideration of the parties' written submissions and the oral arguments presented at the May 21, 2018 status conference, the Court issued an Order on May 25, 2018, GRANTING Plaintiff's motion for certification of the class defined above, and APPOINTING Sean Sherman and Allison Zieve to serve as class counsel in the instant matter. (See Order Granting Motion to Certify Class, ECF No. 24, at 1-2.) The instant Memorandum Opinion provides the reasons for that Order.

         I. BACKGROUND

         In its Policy and Research, LLC opinion, this Court recently explained the facts that pertain to the TPPP in general, as well as those that relate to HHS's particular decision to “shorten” the five-year project periods relating to grants that had been awarded in 2015 pursuant to that program. See Policy & Research, LLC, 2018 WL 2184449, at *2-5. Those facts need not be restated here. For present purposes, it is sufficient to note that Healthy Futures is a “nonprofit organization that is a recognized leader in teen and unplanned pregnancy prevention in San Antonio and Texas” (Decl. of Dr. Janet Realini, ECF No. 6-1, ¶ 2), and that Healthy Futures received a grant under the TPPP in support of its efforts to disseminate an “innovative evidence-informed sexual health curriculum” to schools and agencies in Texas (id. ¶¶ 2-3). Healthy Futures is one of eighty-one nonprofit organizations that received TPPP grants during the 2015-2020 grant cycle but were notified by HHS in 2017 that their project periods were being “shorten[ed]” such that their funding would expire at the end of June of 2018. (Notice of Award FY 2017-2018 for Healthy Futures of Texas, Ex. C to Decl. of Dr. Janet Realini, ECF No. 6-1, at 35.)

         Healthy Futures filed the instant lawsuit on April 27, 2018 to challenge that agency decision. (See Compl. ¶¶ 53-57.) Healthy Futures's complaint trails several other similar legal actions filed in this Court and elsewhere, the first four of which were filed on the same day-February 15, 2018-in different federal courts across the country.[3] But unlike those prior plaintiffs, Healthy Futures has requested that a nationwide class action be certified under Federal Rule of Civil Procedure 23(b)(2) to secure injunctive relief on behalf of all TPPP grantees who received grant awards for five-year project periods in 2015 and had their projects summarily shortened by HHS (except those who have already received this relief in the context of the four lawsuits that were filed in February of 2018). (See Id. ¶¶ 45-46.) In this regard, Healthy Futures asserts that this proposed class satisfies all of the requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(2), and therefore, certification is appropriate. (See Pl.'s Mem. at 8-12.)

         HHS has objected to Plaintiff's proposed class action. The agency argues that this Court cannot certify such a class because the proposed exclusion of former TPPP plaintiffs functions as an “opt-out mechanism” (see Defs.' Opp'n at 3), when it is well established that “the mandatory nature of a Rule 23(b)(2) class precludes individual opt-outs” (id. at 4). Defendants also contend that the impermissible carve outs cannot be removed without risking improper interference with the cases that Healthy Futures seeks to exclude. (Id. at 5.) Healthy Futures's motion for class certification became ripe for this Court's review on May 21, 2018. (See Pl.'s Reply Mem. in Further Supp. of Mot. for Class Certification (“Pl.'s Reply”), ECF No. 20.)


         Before a district court may certify a class under Rule 23, the party seeking certification must establish that the proposed class “satisfies all of the prerequisites set forth in Rule 23(a).” Ross v. Lockheed Martin Corp., 267 F.Supp.3d 174, 190 (D.D.C. 2017) (citation omitted). Rule 23(a) requires that: “(1) the [proposed] class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the [proposed] class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the [proposed] class; and (4) the representative parties will fairly and adequately protect the interests of the [proposed] class.” Fed.R.Civ.P. 23(a). These four requirements are usually known by their shorthand names: “numerosity, commonality, typicality, and adequacy of representation[.]” Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 460 (2013).

         Additionally, once the party seeking certification has satisfied the four requirements of Rule 23(a), it must also establish that the class action it seeks to litigate is one of the three types of class actions authorized by Rule 23(b). See Ross, 267 F.Supp.3d at 190-91. Here, Healthy Futures is pursuing class-wide injunctive relief; therefore, it has requested certification under Rule 23(b)(2) (see Pl.'s Mem. at 4), which provides that a class action may be maintained if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole[, ]” Fed.R.Civ.P. 23(b)(2).

         Notably, the party seeking to certify a class under Rule 23 must provide proof that the proposed class satisfies all of the necessary criteria, see In re Rail Freight Fuel Surcharge Antitrust Litig.-MDL No. 1869, 725 F.3d 244, 249 (D.C. Cir. 2013), and it bears the burden of proving that the “putative class[] meet[s] the requirements of Rule 23 by a preponderance of the evidence[, ]” Garnett v. Zeilinger, 17-cv-1757, 2018 WL 1524748, at *2 (D.D.C. Mar. 28, 2018). For its part, the court may “probe behind the pleadings before coming to rest on the certification question[, ]” In re Rail Freight, 725 F.3d at 249 (internal quotation marks and citation omitted), with an understanding that the question of class certification “often ‘involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action[, ]'” Steele v. United States, 159 F.Supp.3d 73, 80 (D.D.C. 2016), on reconsideration in part, 200 F.Supp.3d 217 (quoting Richards v. Delta Air Lines, Inc., 453 F.3d 525, 530 n.5 (D.C. Cir. 2006)). Courts must take care to refrain from ...

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