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Promundo-US v. Department of Health and Human Services

United States District Court, District of Columbia

July 18, 2019

PROMUNDO-US, Plaintiff,



         In 2010, Congress established the Teen Pregnancy Prevention Program (“TPPP”), which offers grants to state and local agencies and non-profit organizations working to reduce teen pregnancy. The Department of Health and Human Services (“HHS”) awards and administers these grants. The grants run for five years, with funding allocated in annual installments so long as the recipient continues to meet eligibility criteria. In 2017, HHS announced without explanation that it would terminate funding for all ongoing TPPP grants two years early. Subsequent grant announcements revealed that the early termination was due to a shift in HHS's approach to teen pregnancy prevention under the present Administration. Whereas before, eligible grants covered programs employing a wide range of evidence-based prevention strategies, HHS now emphasizes programs aimed at promoting abstinence.[1] Plaintiff Promundo-US-which operates a TPPP-funded study designed specifically for young men of color-was among the recipients whose grants were defunded prematurely.

         A number of TPPP grantees sued HHS soon after learning of the early termination and succeeded in obtaining court orders requiring the agency to fund the last two years of their grants based on the original eligibility criteria.[2] Promundo, however, waited nearly a year after receiving notice of the defunding to file this suit seeking similar equitable relief under the Administrative Procedure Act. HHS does not defend the early termination of Promundo's funding. Instead, it moves to partially dismiss Promundo's claims for lack of subject matter jurisdiction. HHS argues that Promundo's claim for funding for the fourth year of its grant is moot because by the time Promundo filed suit, HHS had already obligated all appropriated funds for that grant period to other recipients. In support of this argument, HHS relies on City of Houston v. Department of Housing & Urban Development, 24 F.3d 1421 (D.C. Cir. 1994), where the D.C. Circuit applied the “well-settled” constitutional principle that “when an appropriation has lapsed or been fully obligated, federal courts cannot order the expenditure of funds that were covered by that appropriation.” Id. at 1424. As for the fifth and final grant year, for which funds remain, HHS asks the Court to remand the case to the agency so that it can determine whether Promundo still should receive funding given that the funding disruption has caused it to scale back its study.

         The Court heard oral argument on HHS's motion on May 31, 2019. Based on the briefing and argument, the Court agrees with HHS that Promundo's claim to funding for the fourth grant year is moot under City of Houston, which obviously is binding on this Court. The Court finds further that Promundo's claim to funding for the fifth year is not ripe because HHS has conceded that the early termination was unlawful but has not yet made a funding decision for that year. Government counsel represented at the hearing that HHS has set aside sufficient funds for the fifth year of Promundo's grant pending receipt of a satisfactory application for continued funding. As the Court indicated at the hearing, it would be unfortunate to say the least if HHS were to deny Promundo's application based on changes to its program brought about by HHS's unlawful termination of funding. But the Court will leave it to the agency to make that determination in the first instance.[3]

         I. Background

         Each year since 2010, Congress has appropriated funds to HHS for “grants to public and private entities to fund medically accurate and age appropriate programs that reduce teen pregnancy.” Consolidated Appropriations Act, 2010, Pub. L. No. 111-117, 123 Stat. 3034, 3253 (2010) (“2010 CAA”); Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, 132 Stat. 348, 733 (2018) (“2018 CAA”). Funds are allocated to two “tiers” of grants: “Tier 1” grants are designated “for replicating programs that have been proven effective through rigorous evaluation to reduce teenage pregnancy” and “Tier 2” grants are designated for programs seeking “to develop, replicate, refine, and test additional models and innovative strategies for preventing teenage pregnancy.” 2018 CAA, 132 Stat. at 733. HHS solicits applications for TPPP grants through Funding Opportunity Announcements (“FOA”). HHS issued an FOA in 2010 for an initial batch of five-year grants, followed by a second set of FOAs in 2015. The 2015 FOAs split the tiers into subparts. As relevant here, Tier 2C covers pregnancy-prevention projects designed specifically for young men.

         Promundo is one of three Tier 2C grantees. Compl., ECF No. 1, ¶¶ 3, 11, 32, 37. Promundo's grant commenced in September 2015 and was to run through September 29, 2020, with the expectation that funding would be renewed in yearly installments known as budget periods. To receive funding for each subsequent budget period, Promundo is required to submit annual continuation applications. Gerardi Decl. Ex. E, 2015 Funding Opportunity Announcement (“2015 FOA”), ECF No. 14-4, at 122-26. Promundo received $500, 000 for its first budget period, which ran from September 30, 2015 to September 29, 2016. Compl. ¶¶ 12, 38; Gerardi Decl. Ex. A, 2015 Notice of Award, ECF No. 14-4, at 5. It received $565, 000 for its second budget period, which ran from September 30, 2016 to September 29, 2017. Compl. ¶¶ 12, 39; Gerardi Decl. Ex. B, 2016 Notice of Award, ECF No. 14-4, at 36. And it received $617, 183 for its third budget period, which ran from September 30, 2017 to September 29, 2018. Compl. ¶¶ 12, 40; Gerardi Decl. Ex. C, 2017 Notice of Award, ECF No. 14-4, at 52.

         In November 2017, during the third budget period, HHS notified Promundo that its five-year project period would be shortened by two years, ending with that budget period on September 29, 2018. Compl. ¶¶ 4, 48; Gerardi Decl. Ex. D, 2017 Revised Notice of Award, ECF No. 14-4, at 71. Then, in April 2018, HHS issued an FOA for a new cohort of Tier 2 grantees under revised substantive criteria emphasizing “sexual risk avoidance”-that is, abstinence-based strategies. See Gov't Mem. in Supp. Mot. Dismiss (“Gov't MTD”), ECF No. 14-1, at 3. Promundo submitted its continuation application for the fourth budget period, Compl. ¶ 61, but did not submit an application under the new FOA, Gov't MTD at 3. Promundo has not received funding for its fourth budget period. Compl. ¶ 68.

         At issue here are the two remaining budget periods of Promundo's initial five-year grant: the current, fourth budget period (which started September 30, 2018 and will end September 29, 2019) and the fifth and final budget period (which is set to start September 30, 2019 and end September 29, 2020).

         HHS does not defend its decision to terminate Promundo's five-year TTPP grant-which, as noted above, numerous courts have found unlawful. Instead, it moves to partially dismiss the case for lack of jurisdiction. It argues that Promundo's claim for the fourth budget period (the current one for which Promundo has not received funding) is moot. According to HHS, by the time Promundo filed suit on September 28, 2018, HHS had already obligated all of the funds from Congress's 2018 TPPP appropriation-the appropriation HHS says was meant to fund the fourth budget period. HHS faults Promundo for not filing suit earlier and for not seeking to enjoin the agency from obligating those funds. In addition, HHS asks the Court to remand Promundo's claim for the fifth budget period, which will begin September 30, 2019. According to the government, Promundo has not yet applied for those funds and has admittedly had to scale back its operations due to lack of funding for the fourth budget period, see Compl. ¶ 59; therefore, HHS says, the agency needs to evaluate whether Promundo still qualifies for funding for its last year.

         Also before the Court is Promundo's motion for expedited summary judgment and a preliminary injunction. Promundo asks the Court to declare HHS's decision to shorten Promundo's TTTP grant period unlawful and seeks to have HHS reinstate its TPPP grants for the awarded five-year project period in the same manner as prior to the unlawful termination. HHS maintains that there is no reason for the Court to grant summary judgment in Promundo's favor given that the agency is not defending the legality of its actions and that the only remaining legal issue is whether the claims are moot.

         II. Standard of Review

         HHS has moved to dismiss part of Promundo's complaint as moot. “A motion to dismiss for mootness is properly brought under [Federal] Rule [of Civil Procedure] 12(b)(1) because mootness itself deprives the court of jurisdiction.” Indian River Cty. v. Rogoff, 254 F.Supp.3d 15, 18 (D.D.C. 2017). When evaluating a motion to dismiss, the Court must “treat the complaint's factual allegations as true and must grant [the] plaintiff the benefit of all inferences that can be derived from the facts alleged.” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (citations and quotations omitted). Unlike some jurisdictional questions such as standing or ripeness, the party asserting mootness bears the “initial heavy burden” of establishing that the case is moot. Honeywell Int'l, Inc. v. NRC, 628 F.3d 568, 576 (D.C. Cir. 2010) (citation and quotations omitted). The issue of ripeness also falls under Rule 12(b)(1). See Venetian Casino Resort, LLC v. EEOC, 409 F.3d 359, 363-64 (D.C. Cir. 2005).

         III. ...

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