One Year of Successful Battles to Protect the TPP Program Against Trump Administration Unlawful Actions; Fights Remain as Administration Continues its Assault on Evidence

Throughout 2018, local government, health care, youth-serving, and legal non-profit organizations across the country challenged the Trump administration’s efforts to politicize the Department of Health and Human Services’ (HHS) evidence-based Teen Pregnancy Prevention (TPP) Program. These lawsuits garnered significant success in court. Four federal judges ruled five consecutive times that the Trump administration unlawfully cut the funding for TPP Program grantees, whose programs serve 1.2 million young people across the country. Two federal judges also blocked the Trump administration’s efforts to recompete — under unlawful terms — the very funds for the grants that courts had found were illegally terminated. In each of these cases, the government has conceded defeat and dropped its appeal.

Yet fights remain as the administration continues efforts to dismantle the evidence-based TPP Program. Despite being repeatedly rebuffed in the federal courts over the last year, the administration may again be expending TPP Program funds unlawfully, and in a new funding opportunity issued in February 2019, HHS indicated it intends to continue to pursue a similar approach to competing funds.

This memo summarizes the current posture of litigation against the Trump administration’s attacks on the TPP Program.¹ As one of the organizations representing plaintiffs in these legal cases, Democracy Forward will continue fighting to prevent the administration’s unlawful actions.

HHS Sued Over Early Termination of TPP Program Grants

Freedom of Information Act Suit Filed Seeking Information on Unlawful Grant Terminations

November 2017: Democracy Forward filed a Freedom of Information Act (FOIA) suit against HHS to uncover the reasons for HHS’ unexplained termination of the TPP Program grants en masse in July 2017, three years into the five-year grant program.² Records produced in the lawsuit revealed that political appointees who have long opposed the TPP Program and evidence-based comprehensive sexual education were directly involved in the grant terminations. These appointees sought to eliminate the TPP Program and key staff by boxing out long-term program management experts, even telling these career civil servants to “get in line.” The FOIA litigation concluded in late 2018.

First Suits Filed by Ten Grantees in Four Courts – Each Court Ruled in Grantees’ Favor – Government Drops Appeals

February/March 2018: Ten local government, health care, and legal non-profit organizations filed four lawsuits in federal district courts in Washington, Maryland, and the District of Columbia challenging the Trump administration for unlawfully terminating the TPP Program grants. The suits, among other things, challenged the unexplained early terminations as contrary to HHS’ regulations and arbitrary and capricious in violation of the Administrative Procedure Act. Grantees were represented in separate suits by Arnold & Porter, the Baltimore City Law Department, Democracy Forward, Pacifica Law Group, Planned Parenthood Federation of America, and Public Citizen Litigation Group.³

April/May 2018: Federal judges in all four initial cases ruled that the Trump administration illegally terminated the TPP Program grants and HHS was ordered to accept and process these grantees’ year-four funding applications in accordance with the law. “[The Administration has] attempted to convince multiple courts of their position with no success,”⁴ wrote one federal judge who further found that “HHS’ failure to articulate any explanation for its action, much less a reasoned one based on relevant factors, exemplifies arbitrary and capricious agency action meriting reversal.”⁵ Another federal judge wrote, “[B]ecause HHS terminated Plaintiffs’ grant funding within the meaning of the HHS regulations without any explanation and in contravention of its own regulations, HHS’ action easily qualifies as an arbitrary and capricious act under the APA.”⁶

Class Action Filed, Seeking Relief for Remaining Grant Recipients – Court Ruled in Grantees’ Favor

April/May/June 2018: Following these rulings, Public Citizen Litigation Group filed a class-action lawsuit requesting a court declare unlawful HHS’ termination of all remaining TPP Program grants that were ended in July 2017 and order HHS to accept and process year-four applications for these grantees.⁷ On June 1, 2018, a federal judge ruled in favor of the grant recipients in the class action and against HHS.⁸

Consistent with the four prior decisions, the federal judge ruled that the administration’s terminations were illegal and ordered HHS to accept and process the applications for grantees included in the class action.

Government Drops Appeals of Its Losses

In each of the cases described above the government filed a notice of appeal, and in each case the government subsequently dropped its appeal, which speaks to the strength of the challenges HHS was facing.

HHS Seeks to Recompete the Very Funds Federal Courts Ruled were Illegally Terminated; Federal Judges Again Rule HHS Acted Illegally

HHS Tries to Recompete Funds Prioritizing Illegal Criteria

Despite five consecutive rulings that the Trump administration’s termination of the TPP Program grants was illegal, HHS tried to divert funding away from the rigorously evaluated, evidence-based programs required by Congress toward untested programs supported by the anti-science, anti-evidence ideologues appointed by Trump. The day after the first court ruled that the administration’s terminations were illegal, the Trump administration issued two new Funding Opportunity Announcements (FOA), for Tier 1 and Tier 2 grants to be funded out of the 2018 Consolidated Appropriations Act, attempting to repurpose the TPP Program funding and the illegally terminated grants to, among other things, fund particular abstinence-only content, rather than programs shown to be effective through rigorous evaluation.

Suits Filed Challenging Agency Funding Competition; Congressional Amicus Filed

June 2018: On June 8, 2018 Multnomah County, Oregon filed suit against HHS over these politicized changes to the TPP Program, claiming that the new grant criteria in the Tier 1 FOA violated Congressional requirements for rigorously evaluated, proven effective programs and instead substituted an anti-science, ideologically-driven approach that privileged abstinence-only content.⁹ Multnomah County also claimed that HHS violated the Appropriations Clause of the United States Constitution and unlawfully transferred funds between appropriations. Democracy Forward and Pacifica Law Group represent Multnomah County in this matter.

On June 21 and June 22, 2018, Planned Parenthood affiliates filed suit in Spokane, Washington and New York City, New York, challenging both the Tier 1 and Tier 2 FOAs.¹⁰ Planned Parenthood of New York City (PPNYC), Planned Parenthood of the Great Northwest and the Hawaiian Islands (PPGNHI), Planned Parenthood of the Heartland (PPH), and Planned Parenthood of Greater Washington and North Idaho (PPGWNI) are represented in these suits by Planned Parenthood Federation of America and Arnold & Porter.

Twenty Members of Congress filed a ‘friend of the court’ amicus brief in support of the challenges brought by Multnomah County and the Planned Parenthood affiliates. The briefs emphasized that the administration’s new criteria defied Congress’ intent to fund programs scientifically proven to reduce teen pregnancies and sexually transmitted diseases and prioritize unproven abstinence-only content.

HHS Handed Two More Losses – Criteria Ruled Unlawful and Funding Opportunity Vacated

August 30, 2018: Federal judges in New York and Oregon separately ruled that the Trump administration contradicted Congress’s unambiguous intent when it allowed unproven, abstinence-only programs to apply for TPP Program grants. The courts found that HHS defied the Congressional mandate for evidence-based public health programs. In concluding that HHS’ actions were unlawful, the federal court in Oregon said in its ruling that “an agency is not free simply to disregard statutory responsibilities…[and] because the 2018 Tier 1 FOA is ‘not in accordance with the law,’ it must be vacated.”¹¹ The Oregon federal court further ruled HHS violated the Appropriations Clause of the United States Constitution and had unlawfully transferred funds between appropriations. However, the Oregon federal court declined to require HHS to preserve the funds at issue in the litigation. The New York federal court similarly concluded HHS’ actions violated Congress’s mandate for Tier 1 grants, and rebuffed the administration’s mischaracterization of the TPP Program’s effectiveness, finding that the administration did not have an “‘adequate reason’ to flaunt the statutory requirement to ‘replicat[e] programs that have been proven effective through rigorous evaluation.’”¹² The dual court orders preventing HHS from moving forward under the Tier 1 FOA came just days before HHS had planned to distribute grant funds pursuant to the unlawful criteria.

The New York federal court rejected Planned Parenthood’s challenge to the Tier 2 FOA and the district court in Washington found the plaintiffs lacked standing. The government filed a notice of appeal in both the New York and Oregon cases. Planned Parenthood filed a notice of appeal in the Washington case, and cross-appealed the Tier 2 FOA loss in the New York case. In the Oregon case, Multnomah County cross-appealed the federal court’s order denying the order to preserve the funds.

March, 2019: The Trump administration conceded defeat by dropping its appeals in both the New York Tier 1 and Oregon cases. Several supportive friend of the court briefs were filed in Planned Parenthood’s Washington case appeal. These include:

• Attorneys General (led by the Commonwealth of Pennsylvania and including the Commonwealths of Massachusetts and Virginia, the States of California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maryland, Michigan, Minnesota, Nevada, New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia);
• Members of Congress (Reps. Pramila Jayapal, Barbara Lee, Jerrold Nadler, Diana DeGette, Judy Chu, Theodore Deutch, Earl Blumenauer, Grace Meng, Marc Veasey, Kathleen Rice, and Jamie Raskin);
• Evidence-based policy experts (Ron Haskins, Ph. D., and Andrea Kane); and
• Local governments working to curb teen pregnancy (City of Baltimore, Maryland and King County, Washington).

Fights Remain as Administration Continues its Assault on the TPP Program

HHS Refuses to be Transparent about its Use of Funds

Since the latest court rulings in August 2018 that HHS’ actions were unlawful, information indicates that HHS may again have violated the statutory requirements in the 2018 Consolidated Appropriations Act, as well as the orders of federal courts in Oregon and New York. For example, HHS obligated $21 million to MITRE Corporation (MITRE) for work pertaining to the TPP Program on the last day of the fiscal year in September 2018 with no explanation. This is concerning because:

• In response to questions from Democracy Forward, the government acknowledged that the funds provided to MITRE were the same Tier 1 funds HHS had intended to obligate through the funding opportunity announcement that had been declared unlawful. HHS’ 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.
• Congress required that TPP Program funds be spent on “competitive contracts and grants,”¹³ but there is no evidence HHS undertook any competitive process concerning the $21 million payment in September 2018 to MITRE.
• On September 26, 2018 HHS issued a press release listing 41 “intended” grantees to which it said it “would have” awarded approximately $20 million but for the Oregon and New York federal court orders. Since HHS obligated $21 million to MITRE, at least one such organization has subsequently received a sub-award of HHS funds.
• On February 13, 2019 HHS opened a new competition for Tier 1 grants out of the Department of Defense and Labor, Health and Human Services, and Education Appropriations Act, 2019 and Continuing Appropriations Act, 2019 – the same appropriation that will fund the fifth year of the five-year grants that HHS unsuccessfully sought to unlawfully terminate in 2017. While acknowledging the federal courts’ rulings that its previous criteria were unlawful, the government stated it “continues to intend to pursue a similar approach.”

HHS Faces Additional Congressional Oversight; Democracy Forward Sues for Records of Potentially Unlawful Expenditure of TPP Program Funds

In a December 2018 letter to HHS Secretary Azar, members of Congress expressed concern that the administration may be bypassing court orders by using a third-party government contractor to direct federal funds toward abstinence-only programs. In January 2019, Democracy Forward again took the administration to court for stonewalling in releasing the records regarding the fund transfer to MITRE that could show whether HHS unlawfully expended TPP Program funds yet again. Production of these documents is ongoing.

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For more information about Democracy Forward Foundation’s work in this matter please contact Megan Uzzell at muzzell@democracyforward.org  or Charisma Troiano at ctroiano@democracyforward.org.