942 F.3d 512
D.C. Cir.2019Background
- HHS issued a 2018 Funding Opportunity Announcement (FOA) for Title X family‑planning grants that revised program priorities and shifted scoring (up to 35 of 100 points) toward those priorities.
- Plaintiffs (Planned Parenthood affiliates and the National Family Planning & Reproductive Health Association) challenged the 2018 FOA in district court, arguing it conflicted with 42 C.F.R. § 59.7 and that HHS improperly changed selection criteria without APA notice‑and‑comment rulemaking.
- The district court granted summary judgment to HHS, and plaintiffs appealed; while the appeal was pending HHS (1) disbursed the 2018 grant funds and (2) issued a materially revised 2019 FOA and subsequently amended 42 C.F.R. § 59.7.
- Plaintiffs sought an injunction to block disbursement; the court denied interim relief and HHS paid out the 2018 grants, concluding the 2018 cycle was complete.
- Because the 2018 FOA and grant cycle are concluded and the rule and FOA were changed, the D.C. Circuit held the appeal moot, vacated the district court judgment under Munsingwear, and remanded with instructions to dismiss.
- Dissent (Judge Srinivasan) argued the APA notice‑and‑comment claim remains capable of repetition yet evading review because HHS has adjusted FOA criteria without notice and the amended regulation may permit future FOA changes without notice‑and‑comment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III jurisdiction — mootness of challenge to 2018 FOA | 2018 FOA harmed plaintiffs; challenge remains justiciable and plaintiffs asked for declaratory relief | Grant funds disbursed and FOA expired; court cannot provide effectual relief | Moot: disbursement and expiration prevent meaningful relief; claim dismissed |
| Claim of ongoing agency policy | Plaintiffs argued FOAs are used as continuing means to change criteria and thus an ongoing policy exists | HHS said the suit targeted the 2018 FOA only; no ongoing policy was pled below | Forfeited and unproven: plaintiffs raised ongoing‑policy theory too late; cannot rely on it to avoid mootness |
| Capable‑of‑repetition yet evading review (precise controversy under Weinsten) | The dispute over using FOAs to change selection criteria can recur and is too short to litigate | 2019 FOA and amended §59.7 materially differ from 2018 FOA so the precise controversy is unlikely to recur | Exception does not apply: 2019 FOA and amended rule change the legal and factual landscape; no reasonable expectation of same dispute |
| APA notice‑and‑comment claim | Plaintiffs argue FOA changes required notice‑and‑comment rulemaking (statutory claim) | HHS contends plaintiffs challenged only the 2018 FOA and the amended regulation shows criteria can be inclusive | Majority: moot; did not decide merits of future APA claim. Dissent: APA claim could be capable of repetition and should proceed |
Key Cases Cited
- Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) (Article III jurisdiction and mootness threshold)
- Church of Scientology of Cal. v. United States, 506 U.S. 9 (1992) (effectual relief requirement for mootness)
- United States v. Munsingwear, Inc., 340 U.S. 36 (1950) (vacatur of lower‑court judgment when case becomes moot on appeal)
- U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18 (1994) (vacatur inappropriate if appellant caused mootness)
- Weinstein v. Bradford, 423 U.S. 147 (1975) (capable‑of‑repetition yet evading review test)
- Del Monte Fresh Produce Co. v. United States, 570 F.3d 316 (D.C. Cir. 2009) (ongoing‑policy and repetition analysis)
- City of Houston v. HUD, 24 F.3d 1421 (D.C. Cir. 1994) (loss of access to funds can render relief impossible)
- People for the Ethical Treatment of Animals v. Gittens, 396 F.3d 416 (D.C. Cir. 2005) (precise‑controversy requirement for repetition exception)
- Clarke v. United States, 915 F.2d 699 (D.C. Cir. 1990) (estimating likelihood of recurrence by historical frequency)