IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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Plaintiff, )
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v.
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U.S. DEPARTMENT OF
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HEALTH AND HUMAN SERVICES,
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200 Independence Avenue SW
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Washington, DC 20201
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Defendant. )
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CAMPAIGN FOR ACCOUNTABILITY,
611 Pennsylvania Avenue SE, #337
Washington, DC 20003

Case No. 20-cv-0491

COMPLAINT
1.

Plaintiff Campaign for Accountability brings this action against the U.S.

Department of Health and Human Services under the Freedom of Information Act, 5 U.S.C. § 552
(FOIA), and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, seeking declaratory and
injunctive relief to compel compliance with the requirements of FOIA.
JURISDICTION AND VENUE
2.

This Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B) and

28 U.S.C. §§ 1331, 2201, and 2202.
3.

Venue is proper in this district pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C.

§ 1391(e).
4.

Because Defendant U.S. Department of Health and Human Services has failed to

comply with the applicable time-limit provisions of the FOIA, Campaign for Accountability is
deemed to have constructively exhausted its administrative remedies pursuant to 5 U.S.C.

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 § 552(a)(6)(C)(i) and is now entitled to judicial action enjoining the agency from continuing to
withhold agency records and ordering the production of agency records improperly withheld.
PARTIES
5.

Plaintiff Campaign for Accountability (“CfA”) is a nonpartisan, non-profit section

501(c)(3) organization primarily engaged in disseminating information to the public. CfA uses
research, litigation, and communications to expose misconduct and malfeasance in public life.
Through research and FOIA requests, CfA uses the information it gathers, and its analysis of it, to
educate the public about the activities and operations of the federal government, local and state
governments and other public actors through reports, published analyses, press releases, and other
media. The organization is incorporated under the laws of the District of Columbia.
6.

Defendant the U.S. Department of Health and Human Services (“HHS”) is a

department of the executive branch of the U.S. government headquartered in Washington, DC, and
an agency of the federal government within the meaning of 5 U.S.C. § 552(f)(1). HHS has
possession, custody, and control of the records that CfA seeks.
STATEMENT OF FACTS
7.

Title X is a federal grant program dedicated to providing comprehensive family

planning and related preventative healthcare services and is designed to prioritize low-income
individuals.
8.

On March 4, 2019, HHS’s Office of Population Affairs (“OPA”) published its final

rule prohibiting referral for abortion under Title X and requiring “physical and financial
separation” between the provision of Title X projects and abortion-related services. HHS required
grant recipients to submit assurances and action plans documenting steps to come into compliance
with the new rule by August 19, 2019. Those recipients not in compliance, or those voluntarily

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 withdrawing from the program due to the restrictions, could be required to return or destroy
thousands of dollars of contraceptives and medications acquired at a discount through the program.
9.

Teen Pregnancy Prevention (“TPP”) Program is a federal grant program providing

funding to organizations implementing evidence-based, medically accurate, and age appropriate
programs to reduce adolescent pregnancy.
10.

Obria Medical Clinics, together with its affiliate Obria Group (collectively

“Obria”), is a collection of nonprofit pregnancy centers that do not offer contraceptive choices,
including condoms, beyond fertility awareness and oppose abortion without exception.
11.

Obria applied for Title X grant funding in fiscal years 2018 and 2019. On March

29, 2019, HHS awarded Obria $1.7 million in Title X funding for Fiscal Year 2019. As a Title X
grantee, Obria is required to submit quarterly financial reports, audits, family planning reports, and
annual progress reports.
12.

On July 11, 2019, HHS announced the award of $493,000 to Obria as one of the 29

grantees for TPP funding.
13.

In August 2019 Planned Parenthood and other organizations announced their

departure from the Title X program and relinquished approximately $70 million in Title X program
funding.
14.

On September 13, 2019, HHS notified the remaining Title X recipients that they

were eligible to apply for additional funding of up to $2 million per project. On September 30,
2019, HHS announced the 50 recipients of supplemental grants, totaling $33.6 million.
15.

CfA submitted four separate FOIA requests to HHS seeking documents and records

related to application materials submitted to HHS for federal funding under the Title X and TPP

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 grant programs, and the Title X rule change. The specifics of each request are set out in detail
below.

FOIA Request #1 ¾ Identification of Title X Supplemental Funding Applicants
16.

On October 7, 2019, CfA submitted a FOIA request to HHS seeking:
Copies of any records sufficient to identify the entities that
submitted application materials in response to HHS’s notice
informing Title X program grantees of their eligibility to apply
for additional Title X funding.

17.

This request sought all responsive records from August 14, 2019, to the date of the

search. A copy of the CfA’s October 7, 2019 FOIA request regarding applicants for supplemental
Title X funding is attached hereto as Exhibit A and is incorporated herein.
18.

On October 11, 2019, HHS sent CfA an acknowledgment letter assigning tracking

number 2020-00059-FOIA-PHS. On October 24, 2019, CfA was notified that the FOIA request
status was “In Process.” On November 15, 2019, December 23, 2019, and again on January 16,
2020 CfA emailed HHS requesting an update regarding the processing of this request. HHS has
sent no response.
FOIA Request #2 ¾ Obria’s and Beacon Christian Community Health Center’s Supplemental
Funding Applications
19.

On October 3, 2019, CfA submitted a FOIA request to HHS seeking:
Copies of any application materials submitted in response to
HHS’s notice informing Title X program grantees of their
eligibility to apply for additional Title X funding by Obria
Group, Obria Medical Clinics, or Beacon Christian Community
Health Center.

20.

This request sought all responsive records from August 14, 2019, to the date of the

search. A copy of the CfA’s October 3, 2019 FOIA request regarding Obria and Beacon Christian

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 Community Health Center’s applications for supplemental Title X funding is attached hereto as
Exhibit B and is incorporated herein.
21.

On October 11, 2019, HHS sent CfA a letter that FOIA request 2020-00042-FOIA-

OS had been referred to the HHS Program Support Center (PSC). On October 24, 2019, CfA was
notified that the request was acknowledged, and the request status has been updated to “In
Process.” The request was assigned the tracking number 2020-00036-FOIA-PHS. On November
15, 2019, December 23, 2019, and again on January 16, 2020 CfA emailed PSC requesting an
update regarding the processing of this request. HHS has sent no response.
FOIA Request #3 ¾ Title X Drug Pricing Policies
22.

On August 1, 2019, CfA submitted a FOIA request to HHS seeking:
All communications, meeting notices, meeting agendas,
informational materials, draft legislation, talking points, reports,
disclosures, or other documents sent to, received by, or
exchanged with any employee of the HHS Office of Population
Affairs, regarding the implementation date of the final revised
Title X rule.
All communications, meeting notices, meeting agendas,
informational materials, draft legislation, talking points, reports,
disclosures, or other documents sent to, received by, or
exchanged with any employee of the HHS Office of Population
Affairs, regarding the Health Resources & Services
Administration 340B Drug Pricing Program and the
responsibility of clinics to maintain, distribute, or dispose of 340
products.

23.

This request sought all responsive records from January 1, 2019, to the date of the

search. A copy of the CfA’s August 1, 2019 FOIA request regarding the new Title X rule and the
340B Drug Pricing Program is attached hereto as Exhibit C and is incorporated herein.
24.

HHS did not send CfA any acknowledgment of, tracking number for, or

communication concerning this request, despite follow-up communications sent by CfA to HHS.

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 On November 15, 2019, CfA emailed HHS to request an update regarding the status of this request.
In response, HHS committed to searching its tracking system and to follow-up with possible next
steps. On December 3, 2019, having received no further update, CfA again emailed HHS to
request the status of this request. On December 3, 2019 HHS replied that record of CfA’s request
could not be located and CfA’s inquiry was forwarded to PSC. On January 16, 2020, CfA again
emailed HHS and emailed PSC requesting an update regarding the processing of this request. PSC
responded on January 17, 2020 asking CfA to resubmit the request. CfA submitted the request
again on January 17, 2020. On January 25, 2020 the request was assigned the tracking number
2020-00445-FOIA-PHS and the request is “In Process.”
FOIA Request #4 ¾ HHS for Obria’s TPP Application
25.

On July 19, 2019, CfA submitted a FOIA request to HHS seeking:
Copies of any and all application materials submitted by The
Obria Group, Inc. (“Obria”), in response to the HHS, Office of
the Assistant Secretary for Health (“OASH”) Funding
Opportunity Announcement for the Replication of Programs
Proven Effective through Rigorous Evaluation to Reduce
Teenage Pregnancy, Behavioral Risk Factors Underlying
Teenage Pregnancy, or Other Associated Risk Factors (Tier 1) –
Phase 1 (“TPP Program”).
All scorecard material and scoring methodology used and/or
created by HHS OASH in its consideration and selection of
Obria as a TPP Program awardee.

26.

This request sought all responsive records from April 15, 2019, to the date of the

search. A copy of the CfA’s July 19, 2019 FOIA request regarding Obria’s TPP application is
attached hereto as Exhibit D and is incorporated herein.
27.

On August 26, 2019, CfA reached out to the HHS FOIA office requesting an update

on the status of this request. HHS informed CfA that it could not locate any record of CfA’s
request. CfA resubmitted the request and received acknowledgement on August 27, 2019. On

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 August 30, 2019, HHS sent an email indicating that the request was being processed, that
responsive records had been located, and that this request was in line for additional review. On
November 14, 2019, HHS informed CfA that the records were then undergoing Second Tier
Review. On November 12, 2019, December 6, 2019, December 17, 2019, January 16, 2020, and
February 4, 2020, CfA emailed HHS for a further update on the status of this request. HHS has
sent no response.
Exhaustion of Administrative Remedies
28.

As of the date of this Complaint, HHS has failed to (a) notify CfA of a final

determination regarding any of the FOIA requests, including the scope of any responsive records
HHS intends to produce or withhold and the reasons for any withholdings; or (b) produce the
requested records or demonstrate that the requested records are lawfully exempt from production.
29.

Through HHS’s failure to respond to CfA’s FOIA requests within the time period

required by law, CfA has constructively exhausted its administrative remedies and seeks
immediate judicial review.
COUNT I
Violation of FOIA, 5 U.S.C. § 552
Failure to Conduct Adequate Searches for Responsive Records
30.

CfA repeats the allegations in the foregoing paragraphs and incorporates them as

though fully set forth herein.
31.

CfA properly requested records within the possession, custody, and control of HHS.

32.

HHS is an agency subject to FOIA and must therefore make reasonable efforts to

search for requested records.
33.

HHS has failed to promptly review agency records for the purpose of locating those

records that are responsive to CfA’s FOIA requests.

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 34.

HHS’s failure to conduct adequate searches for responsive records violates FOIA.

35.

Plaintiff CfA is therefore entitled to declaratory and injunctive relief requiring

Defendant to promptly make reasonable efforts to search for records responsive to CfA’s FOIA
requests.
COUNT II
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Records
36.

CfA repeats the allegations in the foregoing paragraphs and incorporates them as

though fully set forth herein.
37.

CfA properly requested records within the possession, custody, and control of HHS.

38.

HHS is an agency subject to FOIA and must therefore release in response to a FOIA

request any non-exempt records and provide a lawful reason for withholding any materials.
39.

HHS is wrongfully withholding non-exempt agency records requested by CfA by

failing to produce records responsive to its FOIA requests.
40.

HHS is wrongfully withholding non-exempt agency records requested by CfA by

failing to segregate exempt information in otherwise non-exempt records responsive to CfA’s
FOIA requests.
41.

HHS’s failure to provide all non-exempt responsive records violates FOIA.

42.

Plaintiff CfA is therefore entitled to declaratory and injunctive relief requiring

Defendant to promptly produce all non-exempt records responsive to its FOIA requests and
provide an index justifying the withholding of any responsive records withheld under claim of
exemption.

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 REQUESTED RELIEF
WHEREFORE, CfA respectfully requests the Court to:
(1) Order Defendant to conduct a search or searches reasonably calculated to uncover all
records responsive to CfA’s FOIA requests;
(2) Order Defendant to produce, by such date as the Court deems appropriate, any and all
non-exempt records responsive to CfA’s FOIA requests and an index justifying the
withholding of any responsive records withheld under claim of exemption;
(3) Enjoin Defendant from continuing to withhold any and all non-exempt records
responsive to CfA’s FOIA requests;
(4) Award CfA the costs of this proceeding, including reasonable attorneys’ fees and
other litigation costs reasonably incurred in this action, pursuant to 5 U.S.C. §
552(a)(4)(E); and
(5) Grant CfA such other relief as the Court deems just and proper.

Dated: February 20, 2020

Respectfully submitted,
/s/ Alice Clare Campbell Huling_______
Alice Clare Campbell Huling
D.C. Bar No. 1644296
CAMPAIGN FOR ACCOUNTABILITY
611 Pennsylvania Ave. SE, #337
Washington, D.C. 20003
(202) 780-5750
ahuling@campaignforaccountability.org
Counsel for Plaintiff
Campaign for Accountability

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