We sued the U.S. Department of Health and Human Services (HHS) for stonewalling the release of records related to its potentially unlawful expenditure of Teen Pregnancy Prevention (TPP) Program funds. The records are critical because available information indicates that HHS may have again violated the statutory requirements in the 2018 Consolidated Appropriations Act, as well as the orders of federal courts in Oregon and New York.

The strong possibility exists that HHS is misusing taxpayer funds – as it has done repeatedly – and the Department has persistently refused to be transparent about its use of federal TPP Program funds, necessitating this lawsuit under the Freedom of Information Act (FOIA). For example, since the sixth federal court ruled in August 2018 that HHS’s actions were unlawful:

• HHS obligated $21 million to MITRE Corporation (MITRE) for work pertaining to the TPP Program on the last business day of the fiscal year in September 2018 with no explanation. In response to questions from Democracy Forward, the government acknowledged that the funds provided to MITRE were the same funds HHS had intended to obligate through the funding opportunity announcement that had been declared unlawful. HHS’s obligation of these funds contradicted a representation by the government to a federal court that if the funding opportunity announcement was vacated, it could not otherwise obligate the funds. Democracy Forward’s remaining questions about this $21 million obligation remain unanswered, and HHS has refused to respond to Democracy Forward’s requests for records.
• Congress required that TPP Program funds be spent on “competitive contracts and grants.” But there is no evidence that HHS undertook any competitive process concerning the $21 million payment in September 2018 to MITRE. The government has also refused to say whether cities and other public health providers will be given a chance to compete for subawards and subcontracts from MITRE.  
• On September 26, 2018, HHS issued a press release listing 41 “intended” grantees to which it says it “would have” awarded approximately $20 million but for the federal court orders in Oregon and New York. Since HHS obligated $21 million to MITRE, at least one such organization has subsequently received a sub-award of HHS funds. While the government has said this sub-award does not include money that would have been awarded through the funding opportunity announcement vacated by the federal courts, HHS continues to refuse to respond to requests for records about the purpose of the MITRE contract and how the obligation of funds fulfills the statutory requirements.  

The Department’s attempted use of TPP Program funds for means other than Congress intended has generated intense scrutiny. The Department’s actions have been the subject of multiple legal challenges. In November 2017, Democracy Forward first sued HHS to seek information on unlawful grant terminations. Records revealed that political appointees who long opposed both the TPP Program and evidence-based sexual education were directly involved in these illegal actions, sidelining career experts.

Suits filed beginning in February 2018 have resulted in six federal courts finding the agency’s actions to be illegal, including unlawfully terminating TPP Program grants and redirecting TPP Program funds through an unlawful grant competition.

Congress is also conducting oversight of the agencies use of these funds. Twenty Members of Congress previously filed a ‘friend of the court’ amicus brief expressing concern about the Department’s unlawful expenditure of funds, emphasizing that the Administration’s actions defied Congress’ intent.