316 F. Supp. 3d 291
D.C. Cir.2018Background
- HHS issued a 2018 Funding Opportunity Announcement (FOA) for Title X grants that added an eighth scored review criterion (25 points) and modified scoring on facilities/staff (up to 35 points tied to program "priorities and key issues").
- The FOA listed 8 program priorities and 8 key issues (16 items) including sexual-risk-avoidance messaging, promoting primary care integration, encouraging family participation, and cooperating with faith-based/community groups.
- Plaintiffs (Planned Parenthood affiliates and NFPRHA) sued before any awards were made, alleging the FOA (1) conflicts with Title X statute/regulations, (2) required notice-and-comment rulemaking, and (3) is arbitrary and capricious under the APA.
- The government argued FOA language is non-final intermediate guidance, committed to agency discretion, and in any event procedural (not legislative) and reasonable under Title X.
- The court consolidated motions, treated them as summary judgment cross-motions, and concluded plaintiffs’ substantive claims are not currently reviewable because the FOA is not a final agency action; it also held the FOA is a procedural statement not subject to notice-and-comment and that, on the merits, the priorities are within Title X and not arbitrary and capricious.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FOA is reviewable final agency action | FOA's scoring/priorities effectively bind awards and thus are final and reviewable | FOA is intermediate guidance; no grants issued; Deputy Assistant Secretary makes final, discretionary awards | FOA is not final agency action; substantive objections unreviewable now |
| Whether FOA required notice-and-comment rulemaking | FOA changes program policy materially and thus is a legislative rule requiring notice-and-comment | FOA is a procedural/intermediate scoring system that does not alter legal rights or bind decisionmakers | FOA is a procedural statement exempt from notice-and-comment |
| Whether FOA adds unlawful substantive criteria beyond statute/regulation | FOA adds impermissible criteria (abstinence emphasis, primary care preference, family involvement, faith-based partnerships) that conflict with Title X and its regulatory factors | Statute/regulations give HHS discretion; "shall take into account" factors do not preclude consideration of additional compatible criteria | Even on the merits the FOA priorities are consistent with Title X and not arbitrary and capricious |
| Whether FOA is arbitrary and capricious under APA | Changes lack reasoned justification and will undermine Title X's voluntary, client-centered focus | FOA recycles prior priorities, is supported by statutory text and administrative record, and is within agency discretion | Agency action survives arbitrary-and-capricious review; reasons are permissible and supported by the record |
Key Cases Cited
- Heckler v. Chaney, 470 U.S. 821 (agency action committed to agency discretion doctrine)
- Lincoln v. Vigil, 508 U.S. 182 (agency allocation of lump-sum appropriations generally unreviewable)
- Milk Train, Inc. v. Veneman, 310 F.3d 747 (D.C. Cir.) (distinguishing allocative discretion from reviewable statutory reference points)
- Bennett v. Spear, 520 U.S. 154 (final agency action test)
- Dalton v. Specter, 511 U.S. 462 (no final action where another official makes the final decision)
- Rust v. Sullivan, 500 U.S. 173 (voluntary nature of federal grants and limits on compelled participation)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (arbitrary and capricious standard)
- FCC v. Fox Television Stations, Inc., 556 U.S. 502 (permissible reasoned change in policy)