946 F.3d 1100
9th Cir.2020Background
- Congress funds the Teen Pregnancy Prevention Program (TPPP) to make competitive grants for teen-pregnancy prevention; TPPP divides funds into Tier 1 (replicate programs "proven effective through rigorous evaluation") and Tier 2 (research/demonstration to develop/refine/test new models).
- HHS issued 2018 Funding Opportunity Announcements (FOAs) for Tier 1 and Tier 2 that required applicants to implement all elements of either the SMARTool or the TAC and allocated substantial scoring weight to those tools.
- SMARTool and TAC are assessment tools (guides for selecting or evaluating curricula), not standalone programs that have ever been implemented or proven effective.
- Planned Parenthood declined to bid and sued HHS, alleging the 2018 FOAs (1) exceeded TPPP statutory limits by treating tools as replicable "programs" and (2) favored abstinence-only approaches; the district court dismissed for lack of standing.
- The Ninth Circuit reversed: it held Planned Parenthood had competitor standing, the challenge was not moot under the "capable of repetition, yet evading review" exception, found the 2018 Tier 1 FOA contrary to law (because it required replication of tools, not proven programs), held the 2018 Tier 2 FOA was not facially contrary to law, and remanded the APA arbitrary-and-capricious claim as to Tier 2 to the district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue (Article III) | Competitor standing: FOAs altered the competitive rules and prevented Planned Parenthood from competing on equal footing. | Plaintiffs lacked a concrete, particularized injury and thus lacked standing. | Reversed: Planned Parenthood has competitor standing (inability to compete on equal footing is an injury-in-fact; causation/redressability follow). |
| Mootness (capable of repetition, yet evading review) | The agency will use similar FOA criteria again; grant cycles are shorter than litigation, so the dispute is likely to recur and evade review. | Funds were already disbursed and HHS issued a new 2019 FOA, so the 2018 FOAs have no present legal effect (moot). | Not moot: exception applies because HHS indicated intent to pursue a substantially similar approach and grant cycles are short. |
| 2018 Tier 1 FOA — statutory conflict with TPPP | The FOA improperly required replication of SMARTool/TAC elements; those tools are not "programs proven effective" as TPPP requires. | The tools derive from proven programs and help replicate effective elements; FOA is consistent with TPPP goals. | 2018 Tier 1 FOA is contrary to law: SMARTool/TAC are tools (not implemented programs) and cannot be "replicated" as Tier 1 requires. |
| 2018 Tier 2 FOA — statutory conflict and APA challenge | FOA improperly required SMARTool/TAC and may frustrate Tier 2 aims or be arbitrary and capricious. | Tier 2 funds development/testing; using tools to guide research/demonstration fits Tier 2’s statutory purpose. | FOA is not facially contrary to TPPP; whether Tier 2 adoption was arbitrary and capricious must be decided by the district court (remanded). |
Key Cases Cited
- Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656 (1993) (competitor standing: inability to compete on equal footing constitutes injury-in-fact)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing requirements: concreteness and imminence)
- Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969 (2016) ("capable of repetition, yet evading review" doctrine applied to cyclical government actions)
- Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) (courts reject agency constructions inconsistent with clear congressional intent)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary-and-capricious standard: agency must show rational connection between facts and decision)
- Singleton v. Wulff, 428 U.S. 106 (1976) (appellate courts may exercise equitable discretion to reach merits not decided below)
- City of Los Angeles v. Barr, 929 F.3d 1163 (9th Cir. 2019) (competitive-injury and mootness principles in agency grant/regulatory cycles)
- Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) (agency may change policy but must provide reasoned explanation)