United States District Court, D. Maryland
Healthy Teen Network, et al.
Alex M. Azar II, et al.
Catherine C. Blake United States District Judge.
plaintiffs, Healthy Teen Network and the Mayor and City
Council of Baltimore (“Baltimore City”) have sued
the defendants, Alex M. Azar II, Secretary of the U.S.
Department of Health and Human Services, and the Department
of Health and Human Services itself, (collectively
“HHS”), claiming that the defendants'
decision to end their grant award under the Teen Pregnancy
Prevention, (“TPP”), program early is contrary to
the agency's regulations and arbitrary and capricious.
Healthy Teen Network and Baltimore City now move for a
preliminary or permanent injunction. HHS opposes the motion,
and has cross moved for dismissal for failure to state a
claim or for summary judgment. Because both parties agree
that there are no disputed issues of fact, and that the
plaintiffs' case presents pure issues of law, the
plaintiffs' motion will be treated as a motion for
summary judgment. For the reasons stated below, the
plaintiffs will be granted summary judgment and the
defendants' motion will be denied.
administered through the Office of Adolescent Health in HHS,
(Defs.' Mot., ECF No. 27, Ex. B, p. 3), the TPP program
is a creature of Congress. For the first time in the
Consolidated Appropriations Act of 2010, Congress directed
that of the funding appropriated to HHS:
$110, 000, 000 shall be for making competitive contracts and
grants to public and private entities to fund medically
accurate and age appropriate programs that reduce teen
pregnancy and for the Federal costs associated with
administering and evaluating such contracts and grants, of
which not less than $75, 000, 000 shall be for replicating
programs that have been proven effective through rigorous
evaluation to reduce teenage pregnancy, behavioral risk
factors underlying teenage pregnancy, or other associated
risk factors, of which not less than $25, 000, 000 shall be
available for research and demonstration grants to develop,
replicate, refine, and test additional models and innovative
strategies for preventing teenage pregnancy, and of which any
remaining amounts shall be available for training and
technical assistance, evaluation, outreach, and additional
program support activities.
Appropriations Act, 2010, Pub. L. No. 111-117, 123 Stat. 3034
(2009). The program has been renewed in every appropriations
act since, including the 2018 Act. See Consolidated
Appropriations Act, 2018, Pub. L. No. 115-141, 132 Stat. 348
result of this funding, HHS announced two funding
opportunities-labelled Tier 1 and Tier 2-in April 2010. (Am.
Compl. at ¶ 23). Tier 1 grants were to be awarded to
tried and true program models that had already shown promise
in reducing teen pregnancy and delaying sexual activity.
(Id.) Tier 2 grants were to break ground, and fund
new research and programs for reducing teenage pregnancy.
years later, HHS expanded its funding opportunities, this
time adding Tier 1B and 2B grants. Tier 1B grants were
awarded to “replicate evidence-based TPP programs to
scale in communities with the greatest need.”
(Defs.' Mot., ECF No. 27, Ex. B, p. 3). And Tier 2B
grants were designed to test “new or innovative
approaches to prevent teen pregnancy.” (Id.).
These two grants provided funding to Baltimore City and
Healthy Teen Network.
support what HHS anticipated would be “substantial
programmatic involvement . . . between OAH and the grantee
during performance of the project, ” (Am. Compl. at
¶ 34), Tier 1B and Tier 2B awards were distributed over
two periods. The first is called the budget period, and
refers to the funding successful applicants were guaranteed
for one fiscal year. (Defs.' Mot., ECF No. 27, Ex. B,
I-34). The second is called the project period-the amount of
funding successful applicants could expect over the course of
a five year project plan. (Id.) Successful
applicants were not guaranteed funding for the entire project
period, but were required to submit a non-competing
continuation application-which had to include a
“progress report for the current budget year, and work
plan, budget and budget justification for the upcoming
year”-for each of the four budget periods, after the
initial award year, during the project period. (Id.)
award required grantees to “comply with all terms and
conditions outlined in their grant awards, ” and with
HHS's Grants Policy Statement. (Defs.' Mot., ECF No.
27, City of Baltimore 2015-16 Notice of Award, Ex. A at
The Grants Policy Statement is important for two reasons.
First, the Statement warned that funding over the course of a
project period is:
contingent on satisfactory progress, the availability of
funds, and the continued best interests of the Federal
government. They are not guarantees that the project or
program will be funded or will be funded at those levels, and
they create no legal obligation to provide funding beyond the
ending date of the current budget period.
(Defs.' Mot. ECF No. 27, Grants Policy Statement, U.S.
Dep't of Health & Human Servs., Ex. B at I-34). The
Statement further warns that HHS may decide not to
“make a non-competing continuation award” because
(1) “[a]dequate Federal funds are not available to
support the project;” (2) “[a] recipient failed
to show satisfactory progress in achieving the objectives of
the project;” (3) “[a] recipient failed to meet
the terms and conditions of a previous award;” or (4)
“[f]or whatever reason, continued funding would not be
in the best interests of the Federal government.”
(Id. at II-89).
termination is the last piece of this case's regulatory
puzzle. HHS regulations define “termination” as
“the ending of a Federal award, in whole or in part at
any time prior to the planned end of period of
performance.” 45 C.F.R. § 75.2. And “period
of performance” is its own term of art, referring to
the “time during which the non-Federal entity may incur
new obligations to carry out the work authorized under the
Federal award.” 45 C.F.R. § 75.2.
only terminate a grant award if: (1) the grantee failed
“to comply with the terms and conditions of the
award;” (2) “for cause;” (3) “with
the consent” of the grantee; or (4) if the grantee
requests termination and provides written notification of the
reasons for such termination. 45 C.F.R. §
Teen Network and Baltimore City both were awarded funding
under the TPP program in 2015 for five-year project periods
ending in 2020.
29, 2015, Baltimore City was awarded an $8.745 million grant
over a five year project period, with $1.749 million
anticipated for each budget period. (Pls.' Mot., ECF No.
18, Ex. 2, ¶ 9). The award noted that Baltimore City was
guaranteed funding for the first year (the budget period) of
the project period, and that projected future funding (over
the project period) was “subject to the availability of
funds and satisfactory progress of the project.”
(Id.) After submitting non-competing applications,
Baltimore City was granted funding through year two of the
project period. On July 3, 2017, however, Baltimore City
received a notice of award for the third budget period, which
explained the award and warned that “this award also
shortens the project period to end on June 30, 2018, ”
two years earlier than was projected when Baltimore City won
funding in 2015. (Id. at ¶ 24). The notice did
not explain HHS's decision to cut the project period
short, although Baltimore City is sure that it
“complied with all program requirements throughout the
grant, ” (id.), and HHS has not stated
City appealed the termination of the grant in August of 2017
without response. (Id. at ¶ 25). Indeed, HHS
still has not provided Baltimore City with any specific
reason for its decision to end the City's project period
by two years. (Id. at ¶ 24).
1, 2015, Healthy Teen Network was awarded $3.6 million in
funding over a five year project period, with $723, 000
anticipated for each one year budget period. (Pls.' Mot.,
ECF No. 18, Ex. 3, ¶ 3). As was true for Baltimore
City's award, notice of Healthy Teen Network's award
warned that the project period merely represents
“recommended future support . . . subject to the
availability of funds and satisfactory progress of the
project.” (Id. at p. 10). Also like Baltimore
City, Healthy Teen Network successfully submitted
non-competing continuation applications for the next two
years of the project period. On July 6, 2017, along with its
award for year three of the project period, however, Healthy
Teen Network was notified that its project period would be
cut short by two years. (Id. at ¶ 13).
HHS's decision was unexplained, (id. at ¶
15), and Healthy Teen Network alleges that in August 2017 it
was advised by an HHS employee that there was no use in
appealing the agency's decision, (Id. at ¶
ending Baltimore City's and Healthy Teen Network's
project periods early, HHS later provided two public
explanations for its decision. It claimed: (1) “that
there was strong evidence of negative impact or no impact by
the funded projects;” and (2) that because the
President's proposed budget for Fiscal Year 2018
eliminated funding for the TPP program, HHS anticipated it
would lack funding for the projects and terminated them
early. (Am. Compl. at ¶¶ 107-08). Healthy Teen
Network and Baltimore City contend that these explanations
are merely pretense undercut by HHS's longstanding praise
for their work, which persisted even after their funding was
terminated, (Pls.' Mot., ECF No. 18, Ex. 2, ¶¶
22, 26); by the Tier 1B grants themselves, which were only
awarded to programs that had demonstrated positive results in
reducing teen pregnancy; and by the fact that, despite what
the President's budget might have suggested, only
Congress possesses the power to eliminate funding for the TPP
program, (Am. Compl. at ¶¶ 107-10).
plaintiffs sued HHS on February 15, 2018, and subsequently
moved for a preliminary or permanent injunction. HHS
cross-moved for dismissal under Federal Rule of Civil
Procedure 12(b)(6) or for summary judgment under Rule 56. The
court heard oral argument on the motions on April 19, 2018.
Rule of Civil Procedure 56(a) provides that summary judgment
should be granted “if the movant shows that there is no
genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a) (emphases added). “A dispute is
genuine if ‘a reasonable jury could return a verdict
for the nonmoving party.'” Libertarian Party of
Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting
Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330
(4th Cir. 2012)). “A fact is material if it
‘might affect the outcome of the suit under the
governing law.'” Id. (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
Accordingly, “the mere existence of some
alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary
judgment[.]” Anderson, 477 U.S. at 247-48. The
court must view the evidence in the light most favorable to
the nonmoving party, Tolan v. Cotton, 134 S.Ct.
1861, 1866 (2014) (per curiam), and draw all reasonable
inferences in that party's favor, Scott v.
Harris, 550 U.S. 372, 378 (2007) (citations omitted);
see also Jacobs v. N.C. Admin. Office ...