316 F.Supp.3d 291
D.D.C.2018Background
- Title X authorizes HHS to fund voluntary family planning projects and lists four statutory factors for awards; regulations list seven evaluation criteria consistent with longstanding practice.
- HHS issues annual Funding Opportunity Announcements (FOAs) describing application and scoring procedures; since 2001 FOAs have scored applications across seven criteria tied to 42 C.F.R. § 59.7.
- The 2018 FOA added an eighth scored criterion (up to 25 points) assessing applicants’ ability to address program “priorities and key issues” and tied portions of another criterion to those priorities, increasing emphasis on items like sexual-risk avoidance, primary care access, family participation, and cooperation with faith-based groups.
- Plaintiffs (Planned Parenthood affiliates and NFPRHA) challenged the 2018 Announcement, arguing it conflicted with Title X/regulations, was arbitrary and capricious, and required notice-and-comment rulemaking.
- The government defended the FOA as a procedural, nonbinding announcement of intermediate review criteria; it contended the priorities are consistent with Title X and historically present in earlier FOAs.
- The district court consolidated the matters, treated cross-motions as summary judgment, and evaluated (1) reviewability/finality, (2) whether notice-and-comment was required, and (3) the merits under arbitrary-and-capricious review.
Issues
| Issue | Plaintiffs' Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2018 FOA is final agency action under the APA | FOA’s scoring criteria are definitive and will determine awards; therefore reviewable | FOA sets only intermediate panel scoring; final awards are made by Deputy Assistant Secretary who retains discretion | Not final; FOA is intermediate and not judicially reviewable on substantive grounds now |
| Whether FOA required notice-and-comment rulemaking | The FOA substantively changed program rules and thus should have been promulgated as legislative rule | The FOA is a procedural/intermediate guidance exempt from notice-and-comment; it does not bind agency or applicants | No notice-and-comment required; FOA is a procedural rule exempt from §553 |
| Whether the added priorities and key issues conflict with Title X/regulations | New emphases (sexual-risk avoidance, primary care, family participation, faith-based cooperation) exceed or contradict statutory/regulatory criteria and are arbitrary | Priorities are consistent with Title X (including statutory text on natural family planning and family participation) and mirror past FOAs; agency has discretion to consider complementary factors | The priorities are lawful and not arbitrary or capricious; they fit within Title X and prior practice |
| Whether the FOA is arbitrary and capricious under APA | Agency failed to justify substantive policy shifts and ignored evidence about ineffectiveness/coercion risks | Agency reasonably relied on statute, past FOAs, and evidence supporting research-informed emphasis; provided rational basis | Not arbitrary and capricious; agency articulated permissible reasons and the changes are within its discretion |
Key Cases Cited
- Heckler v. Chaney, 470 U.S. 821 (agency action committed to agency discretion doctrine)
- Lincoln v. Vigil, 508 U.S. 182 (grant-funding allocations often committed to agency discretion)
- Dalton v. Specter, 511 U.S. 462 (intermediate recommendations not final when higher official makes final decision)
- Bennett v. Spear, 520 U.S. 154 (final agency action standards)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (arbitrary-and-capricious standard)
- FCC v. Fox Television Stations, 556 U.S. 502 (reasoned explanation required for policy change)
- Clarian Health W., LLC v. Hargan, 878 F.3d 346 (D.C. Cir.) (distinguishing procedural guidance from legislative rules for HHS)