PLANNED PARENTOOD OF WISCONSIN, INC. et al.
Case No. 1:18-cv-01035 (TNM)
MEMORANDUM OPINION
Under Title X of the Public Health Service Act, the Secretary of the U.S. Department of Health and Human Services (HHS) can award federal grants for “voluntary family planning projects” around the country, “which shall offer a broad range of acceptable and effective family planning methods and services.”
The Government claims that the Announcement language is not subject to judicial review—except about whether rulemaking was required—because the Announcement is not “final agency action” under
Both parties seek summary judgment on the undisputed administrative record. I conclude that the language in this Announcement, which does not bind the final decisionmaker, is not a “final agency action” reviewable under the Administrative Procedure Act (APA). Although the Plaintiffs’ notice-and-comment claim is reviewable, the eighth factor is a procedural rather than legislative rule, and it is not arbitrary and capricious. The substantive tweaks to the program priorities and key issues are neither new nor incompatible with Title X, instead they rephrase similar priorities and issues that appeared in prior funding announcements without objection or notice-and-comment rulemaking. I will therefore grant summary judgment for the Government.
I. BACKGROUND
In 1970, Congress added Title X to the Public Health Service Act to “assist in making comprehensive voluntary family planning services readily available to all persons desiring such services.” Pub. L.
[M]ake grants to . . . assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services (including natural family planning methods, infertility services, and services for adolescents). To the extent practical, entities which receive grants or contracts under this subsection shall encourage familiy [sic] participation in projects assisted under this subsection.
An HHS regulation details the agency‘s grant-making evaluation criteria:
What criteria will the Department of Health and Human Services use to decide which family planning services projects to fund and in what amount?
(a) Within the limits of funds available for these purposes, the Secretary may award grants for the establishment and operation of those projects which will in the Department‘s judgment best promote the purposes of section 1001 of the Act, taking into account:
(1) The number of patients, and, in particular, the number of low-income patients to be served;
(2) The extent to which family planning services are needed locally;
(3) The relative need of the applicant;
(4) The capacity of the applicant to make rapid and effective use of the federal assistance;
(5) The adequacy of the applicant‘s facilities and staff;
(6) The relative availability of non-federal resources within the community to be served and the degree to which those resources are committed to the project; and
(7) The degree to which the project plan adequately provides for the requirements set forth in these regulations.
The Title X grant application process begins with a funding opportunity announcement, which describes the program and provides eligibility and evaluation criteria.
HHS issued the 2018 Funding Opportunity Announcement (Announcement or 2018 Announcement) in February 2018. Compl. Ex. A, ECF No. 1-1. The Announcement added an eighth scored criterion under which “[f]ederal staff and an independent review panel will assess all eligible applications.” Id. at 43. The eighth factor awards up to 25 out of 100 points for the project plan‘s ability to implement the “requirements set forth in the priorities and key issues outlined [in] this funding announcement.” Id. at 44. The Announcement also added language to the fifth criterion, for which up to 10 points can be awarded, saying that the “adequacy of the applicant‘s facilities and staff” would depend, in part, on whether staff are “adequately trained to
carry out the program requirements, as well as the priorities and key issues outlined in this announcement.” Id. at 43. The Announcement set eight program priorities and eight key issues. Id. at 9-11. This resulted in 16 total program priorities and key issues, tied to 35 potential points. The Plaintiffs object to only some of the language in these priorities and key issues:
Program Priorities: Each year the OPA [Office of Population Affairs] establishes program priorities that represent overarching goals for the Title X program. . . . Applicants should provide evidence of their capacity to address program priorities. . . .
1. Assuring innovative high quality family planning and related health services that will improve the overall health of individuals, couples and families, with priority for services to those of low-income families, offering, at a minimum, core family planning services enumerated earlier in this Funding Announcement. Assuring that projects offer a broad range of family planning and related health services that are tailored to the unique needs of the individual, that include natural family planning methods (also known as fertility awareness based methods) which ensure breadth and variety among family planning methods offered, infertility services, and services for adolescents; breast and cervical cancer screening and prevention of STDs as well as HIV prevention education, counseling, testing, and referrals;
2. Assuring activities that promote positive family relationships for the purpose of increasing family participation in family planning and healthy decision-making; education and counseling that prioritize optimal health and life outcomes for every individual and couple; and other related health services, contextualizing Title X services within a model that promotes optimal health outcomes for the client.
. . .
4. Promoting provision of comprehensive primary health care services to make it easier for individuals to receive both primary health care and family planning services preferably in the same location, or through nearby referral providers, and increase incentive for those individuals in need of care choosing a Title X provider.
. . .
6. Encouraging participation of families, parents, and/or legal guardians in the decision of minors to seek family planning services; and providing counseling to minors on how to resist attempts
to coerce minors into engaging in sexual activities; . . .
Key Issues: In addition to program priorities, the following key issues should be considered in developing the project plan:
. . .
3. Cooperation with community-based and faith-based organizations;
. . .
5. A meaningful emphasis on education and counseling that communicates the social science research and practical application of topics related to healthy relationships, to committed, safe, stable, healthy marriages, and the benefits of avoiding sexual risk or returning to a sexually risk-free status, especially (but not only) when communicating with adolescents;
6. Activities for adolescents that do not normalize sexual risk behaviors, but instead clearly communicate the research informed benefits of delaying sex or returning to a sexually risk-free status.
Compl. Ex. A at 9-11.
Prior announcements have contained similar priorities. For example, from 2003 to 2011, the announcements emphasized that funding applicants should provide access to abstinence counseling. See, e.g., 2003 FOA at 4, Mot. Dismiss Ex. A, ECF No. 25-10, 2011 FOA at 7, Mot. Dismiss Ex. I, ECF No. 25-10; see also 2015 FOA at 8, Mot. Dismiss Ex. M, ECF No. 25-10 (emphasizing natural family planning methods). From 2003 to 2015, the announcements focused on providing “related preventative health services” that improve “the overall health of individuals” rather than merely attending to reproductive health. See, e.g., 2003 FOA at 4; 2015 FOA at 8. The previous announcements have also urged applicants to encourage family
participation in the delivery of family planning services. See, e.g., 2004 FOA at 4, Mot. Dismiss Ex. B, ECF No. 25-10; 2010 FOA at 7, Mot. Dismiss Ex. H, ECF No. 25-10. Finally, from 2004 to 2009, the funding announcements encouraged applicants to partner with community-based and faith-based organizations. See, e.g. 2004 FOA at 4; 2009 FOA at 7, Mot. Dismiss Ex. G, ECF No. 25-10.
The Plaintiffs filed two suits that the parties agreed to consolidate.2 The Plaintiffs moved for a preliminary injunction, and the Government moved for dismissal or summary judgment. I granted the parties’ joint motion to consolidate the Plaintiffs’ Motion for a Preliminary Injunction with the merits and to construe the parties’ cross motions as motions for summary judgment. Minute Order of June 21, 2018.
II. LEGAL STANDARDS
To prevail on a motion for summary judgment, a movant must show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
III. THE PLAINTIFFS’ SUBSTANTIVE OBJECTIONS ARE NOT REVIEWABLE
The parties agree on the facts in the record, but disagree on their import. The Plaintiffs argue that the 2018 Announcement conflicts with Title X and its governing regulations, required notice-and-comment rulemaking before release, and is invalid as “arbitrary and capricious” under
A. Review Criteria Are Not Wholly “Committed to Agency Discretion”
The APA does not apply to “agency action . . . committed to agency discretion by law.”
Under the APA, there is a “strong presumption that Congress intends judicial review of administrative action,” and so “each category of non-reviewability must be construed narrowly.” Amador Cty. v. Salazar, 640 F.3d 373, 379 (D.C. Cir. 2011). The Government acknowledges this, but contends that because this case is about grant-making, “a rebuttable presumption of nonreviewability arises.” Gov. Reply. 3. For this proposition, the Government points to Lincoln v. Vigil, which held that the Indian Health Service‘s decision to re-allocate funds that Congress appropriated “for the benefit, care, and assistance of the Indians,” was unreviewable, 508 U.S. 182, 184-85 (1993) (citations omitted), because “an agency‘s allocation of funds from a lump-sum appropriation requires a complicated balancing of a number of factors which are peculiarly within its expertise.” Id. at 193 (quoting Heckler, 470 U.S. at 831); Gov. Mot. Summ. J. 12-13. The Supreme Court noted in Lincoln that “Congress may always circumscribe agency discretion to allocate resources by putting restrictions in the operative statutes,” but that “as long as the agency allocates funds from a lump-sum appropriation to meet permissible statutory objectives,” the decision “is committed to agency discretion by law.” 508 U.S. at 193 (citations omitted).
The D.C. Circuit later applied Lincoln‘s logic to a case in which Congress appropriated money to compensate dairy producers
data for calculating 1999 losses,” reasoning that Congress had explicitly appropriated the money for “economic losses incurred during 1999,” and so courts had a “statutory reference point” to guide review. Id. at 752 (quoting Drake v. F.A.A., 291 F.3d 59, 72 (D.C. Cir. 2002)).
Here, the statute and regulations provide ample law to apply to the Plaintiffs’ claims. Congress clearly laid out the purpose of Title X grants, describing in detail the family planning services that the Secretary was to fund.
Thus, applicable law exists to examine the Plaintiffs’ claims that the 2018 Announcement conflicts with Title X and its governing regulations, and is invalid as “arbitrary and capricious” under
of the Government‘s compliance with a statute that appropriated funds for “economic losses incurred during 1999.” Milk Train, 310 F.3d at 752. It is also like Delta Air Lines, Inc. v. Exp.-Imp. Bank of the U.S., in which the D.C. Circuit found that it was “standard judicial fare” to review the Export-Import Bank‘s compliance with a statutory requirement that the Bank “shall take into account any serious adverse effect” a loan or loan guarantee might have on American industries or jobs. 718 F.3d 974, 977 (D.C. Cir. 2013). Although the Plaintiffs are not claiming that HHS failed to consider mandatory criteria, but that new criteria violate existing criteria, courts
B. Announcing Intermediate Review Criteria is Not “Final Agency Action”
The Government‘s next objection to the Plaintiffs’ suit, that the 2018 Announcement was not a final agency action ready for judicial review, strikes home. “An agency action is final only if it is both ‘the consummation of the agency‘s decisionmaking process’ and a decision by which ‘rights or obligations have been determined’ or from which ‘legal consequences will flow.‘” Nat‘l Min. Ass‘n v. McCarthy, 758 F.3d 243, 250 (D.C. Cir. 2014) (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)) (emphasis in original). The 2018 Announcement fails both prongs of
the test. Although practically consequential, the Announcement describes how an agency decision will be made, and is not a final agency action itself. Three facts confirm this: (1) no grants have yet issued under the 2018 Announcement, (2) Title X grant applicants are not legally required to do anything in response to the announced criteria, and (3) the challenged language only governs an intermediate stage in the review process, with results that do not bind the Deputy Assistant Secretary for Population Affairs, who makes the final award decision.
First, no Title X grants have yet issued under the challenged review criteria. Instead, the Plaintiffs are challenging intermediate criteria by which applications will be evaluated, as described in an announcement of available grant funds. With no decision yet made on who wins Title X grant money, there has been no final agency action. See Dalton v. Specter, 511 U.S. 462, 465, 469-70 (1994) (finding no final agency action where the Department of Defense transmitted a military base closure recommendation to the President for all-or-nothing approval, because the President retained authority to make the final decision).
The Plaintiffs frame the agency decision at issue as the altered scoring criteria. Pls.’ Opp. 9-10. They contend that because the Announcement‘s language is not going to change, and it governs how review panels will score applicants, the Announcement marks the consummation of the agency‘s decisionmaking process, and is final. Id. at 10. There is some support for the proposition that an agency decision is “sufficiently final” when it will not be “subject to further agency consideration or possible modification,” Reckitt Benckiser Inc. v. EPA, 613 F.3d 1131, 1138 (D.C. Cir. 2010), since the agency has “definitively stated its position,” and is “at rest in this respect.” Ciba-Geigy Corp. v. EPA, 801 F.2d 430, 437-38 (D.C. Cir. 1986). But Reckitt and Ciba-Geigy are ripeness cases, not “final agency action” cases. Reckitt, 613 F.3d at 1136; Ciba-Geigy, 801 F.2d at 435. Though they apply a “complementary analysis” to the finality question
that I must answer, John Doe, Inc. v. Drug Enf‘t Admin., 484 F.3d 561, 566 (D.C. Cir. 2007), “whether the agency‘s action is sufficiently final” is only one of many factors involved in a ripeness inquiry. Ciba-Geigy, 801 F.2d at 434.
Furthermore, neither of the cases referenced above involved grant applications, a context in which courts usually recognize
Second, instead of setting eligibility requirements, or binding the final decisionmaker, the challenged Announcement lays out the criteria for an intermediate stage in the grant review process. In the initial stage, the agency screens applications using baseline eligibility criteria. 2018 FOA 15-17. The Plaintiffs do not challenge this stage. In the next, “[f]ederal staff and an independent review panel . . . assess all eligible applications according to the [eight review]
criteria.” Id. at 43. During this stage, the independent review panel—composed of “experts in their fields . . . drawn from academic institutions, non-profit organizations, state and local government, and Federal government agencies“—will “comment on and score the applications, focusing . . . on the identified criteria.” Id. at 44. Furthermore, “[f]ederal staff . . . review each application for programmatic, budgetary, and grants-management compliance.” Id. In the ultimate stage, “[t]he Deputy Assistant Secretary for Population Affairs [] or designee will make final award selections,” subject only to later risk analysis, id. at 44-47, considering four additional factors:
- The geographic distribution of services within the identified service area;
- The extent to which funds requested for a project maximize access for the population in need within the entire service area . . . ;
- Whether the project, including subrecipients and documented partners, provides the area to be served with a variety and breadth of effective family planning methods that are ready available and best serve individuals in need throughout the area to be served; and
- The extent to which projects best promote the purposes of [Title X], within the limits of funds available.
Id. at 43-45. Thus, the Deputy Assistant Secretary makes the final decision, using different criteria from the independent review panels.4 The Plaintiffs do not challenge
and contend that the fourth one merely refers to the seven factors that the panels score. Pls.’ Opp. 14 n.8. But Title X‘s “purposes” are broader than
In response, the Plaintiffs contend that as a practical matter, the scores generated by independent review panels are dispositive. Pls.’ Opp. 10-11 (the eighth scored factor has “direct and appreciable legal consequences,” Bennett, 520 U.S. at 178, because “higher-scoring applications get Title X funds, virtually without exception.“). They rely on an affidavit from a former HHS regional administrator, who asserted that in her experience, “no HHS administrator, including the [Regional Health Administrator] or the [Deputy Assistant Secretary for Population Affairs], overrode the scoring of a Title X merits review panel. . . . Higher scoring without fail led to an applicant winning the grant against a competitor.” Decl. of Kathleen Desilets ¶ 25, ECF No. 28-1.
But even if the highest-scoring applications win the grant awards practically every time, the scoring criteria does not legally bind the Deputy Assistant Secretary‘s final decision. 2018 FOA 43-45. In fact, the Government provides four examples of HHS awarding Title X grant funds to organizations that did not receive the highest score. Decl. of Susan Moskosky ¶¶ 9-14 (“the Office of Population Affairs . . . seriously consider[s] the recommendations . . . including
scores, in making final award decisions. There have however, been instances in which applications have been funded out of rank order.“) The Plaintiffs do not dispute the factual accuracy of this evidence, Tr. 4, contending only that the Government‘s examples are not the same type of Title X grant at issue here. Be that as it may, the point remains: “[t]he Deputy Assistant Secretary for Population Affairs [] or designee will make final award selections,” using four open-ended additional factors that the scoring panels do not consider. 2018 FOA at 44-47. And a prior Deputy Assistant Secretary‘s decision to defer to the review panels’ scoring recommendations does not mean that the new Deputy Assistant Secretary will also defer in the future.
When intermediate agency action does not bind the final decisionmaker, no final agency action has occurred. Dalton, 511 U.S. at 469-70. In Dalton, the Supreme Court held that the Defense Base Closure and Realignment Commission‘s base closure recommendation did not constitute a final agency action, even though the President had to
The Plaintiffs try to distinguish Dalton by arguing that the Announcement here does bind the agency, unlike the statute in Dalton, which did not bind the President. But I have already rejected that argument: the Deputy Assistant Secretary for Population Affairs is not a “federal staff” member bound to review applications based only on the eight factors, but is the final decisionmaker, clothed with significant power and discretion. 2018 FOA 43-45. The Plaintiffs also argue that Ms. Desilets’ declaration makes this a different case, implying that the Deputy Assistant Secretary is more likely than the President to rubber-stamp recommendations from her
subordinates. Yet Dalton did not turn on factual likelihoods, but on the “core question” of “whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties.” 511 U.S. at 470; see also Franklin v. Massachusetts, 505 U.S. 788, 796-99 (1992) (finding no final agency action when the Secretary of Commerce sent a census report to the President for transmittal to Congress, since “[t]he President, not the Secretary, takes the final action that affects the States.“). Just as the President made the final decision in Dalton and Franklin, the Deputy Assistant Secretary makes the final decision here. That fact is legally determinative.
Finally, the challenged criteria do not legally bind Title X grant applicants. “By accepting Title X funds, a recipient voluntarily consents to any restrictions placed on any matching funds or grant-related income. Potential grant recipients can choose between accepting Title X funds . . . or declining the subsidy and financing their own unsubsidized program.” Rust v. Sullivan, 500 U.S. 173, 199 n.5 (1991). This observation has even more force when a court reviews a funding opportunity announcement for the next fiscal year, rather than regulations applicable to every future Title X family planning program. In contract terms, this Announcement was simply a solicitation of offers, kicking off an application process that will result in legally binding contracts only after offers are accepted and grants are awarded. See Am. Hosp. Ass‘n v. Bowen, 834 F.2d 1037, 1053 (D.C. Cir. 1987) (reasoning that an HHS request for proposals “binds neither the agency nor the [parties] to whom it is sent.“). The Plaintiffs are not legally obligated to apply for these funds, because “Title X subsidies are just that, subsidies. The recipient is in no way compelled to operate a Title X project . . . it can simply decline the subsidy.” Id. The Plaintiffs emphasize that the Announcement refers to the program priorities and key issues as “requirements.” 2018 FOA at 44; see also id. at 9-11 (“Applicants should
provide evidence of their capacity to address program priorities“). They insist that they must act now to prepare for the upcoming grant competition, “emphasizing primary care and new partnerships with faith-based groups in their planned FY2018 projects.” Pls.’ Mot. Summ. J. 14. No doubt it is prudent for grant applicants to consider the Title X program objectives if they wish to submit a successful grant application. But practical necessity, if such exists here, still does not equal legal obligation.
In Rust, the Supreme Court upheld HHS regulations restricting the ability of Title X grant recipients to engage in activities
As it stands, no grants have been awarded. “The question is not whether judicial review will be available but rather whether judicial review is available now.” Nat‘l Min. Ass‘n, 758 F.3d at 253 (emphasis in original);
obligations have been determined’ or from which ‘legal consequences will flow.‘” Id. at 250 (quoting Bennett, 520 U.S. at 177-78). Without a final agency action, the Plaintiffs’ substantive objections are unreviewable.
IV. THE ANNOUNCEMENT DID NOT REQUIRE NOTICE-AND-COMMENT, BECAUSE IT IS NOT A LEGISLATIVE RULE
A similar analysis applies to the Plaintiffs’ procedural claim that the 2018 Announcement required notice-and-comment rulemaking.5 The APA mandates that agencies promulgate rules only after giving the public notice of the proposed rulemaking and an opportunity to comment, but excepts “interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice.”
general label” for
The exception for procedural rules “may be the hardest to define,” because it exists “to ensure that agencies retain latitude in organizing their internal operations,” but “many . . . internal agency practices affect parties outside the agency—often in significant ways.” Batterton v. Marshall, 648 F.2d 694, 707 (D.C. Cir. 1980). If a rule of agency procedure has enough of a substantive effect, it does not fall within the exception, which must be “narrowly construed.” Mendoza, 754 F.3d at 1023. The D.C. Circuit‘s case law describes the standard as a “matter of degree” with an inflection point:
The distinction between substantive and procedural rules is one of degree depending upon whether the substantive effect is sufficiently grave so that notice and comment are needed to safeguard the policies underlying the APA. Those policies are “to serve the need for public participation in agency decisionmaking and to ensure the agency has all pertinent information before it when making a decision.” Mendoza, 754 F.3d at 1023 (internal citations omitted).
On one side of the inflection point, “[l]egislative rules . . . effectuate statutory purposes. In so doing, they grant rights, impose obligations, or produce other significant effects on private interests. They also narrowly constrict the discretion of agency officials by largely determining the issue addressed. Finally, legislative rules have substantive legal effect.” Batterton, 648 F.2d at 701-02. Such actions “trench[] on substantial private rights and interests,” id., and so warrant notice-and-comment procedures. Mendoza, 754 F.3d at 1023. On the other side of the inflection point, a rule is procedural when notice-and-comment is not warranted by the APA‘s purposes, “as for example, when the action in fact does not conclusively bind the agency, the court, or affected private parties,” Batterton, 648 F.2d at 704, and only “alter[s] the manner in which the parties present themselves or their viewpoints to the agency.” Nat‘l Min. Ass‘n, 758 F.3d at 250 (citation omitted). Even if a rule has a “substantial impact” on those outside the agency, that need not mean that it is substantive. EPIC v. U.S. Dep‘t of Homeland Security, 653 F.3d 1, 5 (D.C. Cir. 2011); Hurson Assocs., 229 F.3d at 281.
Here, the 2018 Announcement does not “conclusively bind the agency, the court, or affected private parties.” Batterton, 648 F.2d at 704. As explained above in Section III(B), the Announcement language imposes no rights or obligations, and has left the Deputy Assistant Secretary free to exercise discretion about who ultimately wins Title X grants. To be sure, a wise grant applicant will closely examine the intermediate review panel‘s scoring criteria, and will aim to score as high as possible under the Announcement‘s challenged terms. As the Plaintiffs have explained, laying the groundwork for an excellent application may have practical costs, even before submission. Pls.’ Mot. Summ. J. 14. But the Announcement has no binding legal effects, only practical ones. And “an otherwise-procedural rule does not become a substantive one . . . simply because it imposes a burden on regulated parties.” Hurson Assocs., 229 F.3d at 281.
Furthermore, the agency‘s 2018 substantive priorities are recycled, not new, and the previous changes to these priorities issued without notice-and-comment.7 HHS emphasized abstinence from 2003-2011 and natural family planning from 2006-2015. Compare 2011 FOA at 7 (emphasizing “abstinence counseling“), and 2015 FOA at 8 (including “natural family planning methods” as an “acceptable and effective family planning method“), with 2018 FOA at 9 (encouraging “natural family planning methods“), and id. at 11 (discussing “avoiding sexual risk” and “returning to a sexually risk-free status“). The agency encouraged holistic family participation in family planning decisions from 2004-2010. Compare 2010 FOA at 7 (“encouraging participation of families“), with 2018 FOA at 10 (“increasing family participation in family planning“). HHS promoted partnerships with community and faith-based organizations in its Announcements from 2004-2009. Compare 2009 FOA at 7 (encouraging “partnerships with community-based and faith-based organizations“), with 2018 FOA at 11 (highlighting “cooperation with community-based and faith-based organizations“). Finally, HHS encouraged access to comprehensive primary care from 2003-2015. Compare 2015 FOA at 8 (advancing the delivery of “related preventative health services” which “lead to improvement in the overall health of individuals“), with 2018 FOA at 9 (assuring “related health services that will improve the overall health of individuals“). If these priorities could change without notice-and-comment in the past, it is difficult to see why they must be subject to that procedure now.
In reaching this conclusion, I am not ignoring the real interests at stake. Cf. EPIC, 653 F.3d at 6 (criticizing the Transportation Security Administration for characterizing a change to body-imaging scans as a procedural rule, using an “overly abstract account of the change in procedure” to “elide[]” the public‘s privacy interests). The Plaintiffs contend that the scoring system‘s heavy emphasis on the revised program priorities and key issues forces them to alter their programs in ways that undermine Title X‘s focus on voluntary and effective family planning services. While it is true that the revised program priorities and key issues are now the highest scored factor, grant applicants always knew that their proposals needed to “address [that year‘s] Title X program priorities,” and to “provide evidence of the project‘s capacity
After all, the APA‘s core charge in this context is to “separate administrative rules that carry the force of law from those that do not,” on the facts of each individual case. Batterton, 648 F.2d at 701. This Announcement bears the “critical feature” of a procedural rule: it does not “alter the rights or interests of parties,” but merely changes “the manner in which the parties present themselves or their viewpoints to the agency.” Nat‘l Min. Ass‘n, 758 F.3d at 250 (citation omitted). Announcing this award competition, along with the decision to score applications based on the agency‘s program priorities and key issues, was not the type of agency action that warranted rulemaking.
Notice-and-comment jurisprudence bears this out. In Clarian Health, the D.C. Circuit held that HHS instructions—which set enforcement priorities for when hospitals must reconcile and return excess funding from the agency—did not require notice-and-comment. 878 F.3d at 357-58. Because the regulation imposed no binding legal effect on a party and the agency retained discretion to deviate from the stated policy, notice-and-comment was not required. Id. Although Clarian Health focused on distinguishing between a legislative rule and a policy (not procedural) rule, the factual similarities are instructive. Like the challenged policy in Clarian Health, the Announcement‘s revised scoring system imposes no legal obligations or prohibitions on the Plaintiffs, and is not outcome determinative: the Deputy Assistant Secretary retains final decision-making authority, just as before. See Alliance for Bio-Integrity v. Shalala, 116 F. Supp. 2d 166, 173 (D.D.C. 2000) (language creating a rebuttable presumption left the agency free to exercise its discretion, and so did not require notice-and-comment).9
Indeed, the Government has conclusively established that the Deputy Assistant Secretary makes the final award decisions and is not bound by panel scoring results. 2018 FOA 15-17; Moskosky Decl. ¶¶ 9-14 (giving four examples of HHS deviating from the results). It appears that no prior announcements issued through notice-and-comment procedures, and the Plaintiffs have not suggested this was improper. See Tr. 34-35. Without legal effects that bind either the agency or private parties, the 2018 Announcement does not have ramifications that would require public participation and information-gathering “to safeguard the policies underlying the APA.” Mendoza, 754 F.3d at 1023. I therefore conclude that the 2018 Announcement is a procedural rule, lacking the force of law, and thus exempt from the APA‘s requirements for formal rulemaking.
V. THE ANNOUNCEMENT SATISFIES TITLE X AND APA LEGAL REQUIREMENTS
Even if the Plaintiffs’ substantive objections were reviewable, the Announcement
The Plaintiffs argue that the Announcement‘s eighth scored criterion “impermissibly adds to [an] exclusive set of criteria:” the four criteria listed in Title X itself,
Neither side‘s winner-takes-all approach correctly interprets this legal regime. As explained above in Section III(A), the statute and its implementing regulations provide significant guidance for the Secretary in awarding Title X grants. At the appropriate time, it would be “standard judicial fare” to evaluate the agency‘s decisionmaking process to make sure that factors that the agency must “take into account” are in fact considered. Delta Air Lines, Inc. v. Exp.-Imp. Bank of the U.S., 718 F.3d 974, 977 (D.C. Cir. 2013); see also Huls Am. Inc. v. Browner, 83 F.3d 445, 450 (D.C. Cir. 1996) (holding “shall take into account the toxicity, reactivity . . . combustibility, or flammability of a substance” could limit “the EPA‘s discretion to consider only those factors it deems relevant.“). But simply because the agency must consider certain factors does not mean that it may not consider others. Instead, other factors are forbidden only if they cannot be reconciled with the grant-making factors that the Secretary must consider, or the purposes of Title X. I therefore turn to the Plaintiffs’ arguments on this front.
The Plaintiffs contend that among the 16 listed priorities in the eighth factor, four emphases—sexual risk avoidance, primary care, family participation, and partnership with faith-based groups—individually and collectively undermine Title X‘s commitment to “comprehensive, effective, acceptable, and non-directive family planning programs,” by supplanting Title X‘s goals with a commitment to “narrow, ineffective, unacceptable, and coercive approaches.” Pls.’ Mot. Summ. J. 30. They emphasize that up to 35% of grant applicants’ scores will come from their proposals’ ability to satisfy the agency‘s program priorities and key issues, and argue that this decision renders the agency‘s management of the Title X program contrary to law. Id. at 30-32. They also argue that HHS has barely tried to justify these programmatic shifts, and that they therefore violate the APA‘s ban on arbitrary and capricious agency action. Id. at 32-35. I consider these arguments together, since arbitrary and capricious
The APA provides that a “reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Here, each of the agency‘s four challenged emphases is at once tamer than the draconian policies the Plaintiffs conjure, and reasonable under Title X‘s charter and the standards of arbitrary and capricious review. Before diving into each emphasis individually, I begin by noting that the Announcement‘s eighth scoring factor is worth more than the others (25 out of 100), and along with the fifth factor, up to 35 points reference in some way the agency‘s program priorities and key issues. But the challenged language is only a small portion of the 16 program priorities and key issues that the independent review panel will score. See 2018 FOA 9-11, 43-44. The great majority of the agency‘s priorities are not in dispute, including “improv[ing] the overall health of individuals, couples and families, with priority for . . . low-income families;” “[e]nsuring that all clients are provided services in a voluntary, client-centered, and non-coercive manner;” compliance with state laws on abuse reporting; “ensuring that abortion is not a method of family planning” under Title X programs; use of performance data and associated metrics; “[e]fficiency and effectiveness in program management;” “accountability for outcomes;” and “meaningful collaboration with subrecipients and documented partners.” Compare id. at 9-11 with Pls.’ Mot. Summ. J. 25-32. With this context in mind, I consider the Plaintiffs’ specific objections.
First, the Plaintiffs object to the Announcement‘s “meaningful emphasis” on “healthy relationships” and “avoiding sexual risk,” 2018 FOA 11, which they consider coded language for “abstinence-only or abstinence-focused sex education.” Pls.’ Mot. Summ. J. 12-13. They argue that this emphasis ignores the social science research showing the ineffectiveness of prioritizing abstinence as a method of family planning, including for adolescents, and imposes unacceptable family planning methods on patients in a coercive manner, particularly by suggesting abstinence to sexually active adults who consider the approach out of the question. Id. at 25-27. But it is the Plaintiffs who ignore Title X and mischaracterize the Announcement language and what HHS intends.
To begin with, Title X‘s mention of “natural family planning methods” implicitly requires the agency to “offer” at least one type of selective abstinence as a method of family planning.
The Announcement‘s actual language along these lines is quite pedestrian. It encourages grant applicants to “consider[]” the following key issues when “developing the project plan:”
- A meaningful emphasis on education and counseling that communicates the social science research and practical application of topics related to healthy relationships, to committed, safe, stable, healthy marriages, and the benefits of avoiding sexual risk or returning to a sexually risk-free status, especially (but not only) when communicating with adolescents;
- Activities for adolescents that do not normalize sexual risk behaviors, but instead clearly communicate the research informed benefits of delaying sex or returning to a sexually risk-free status.
2018 FOA at 11. Fairly read, the agency wants providers to convey the social science research on these topics, and expects grant recipients to discuss “healthy relationships” and “the benefits of avoiding sexual risk . . . especially (but not only) when communicating with adolescents.” Id. The Plaintiffs themselves follow the same pattern. Pls.’ Mot. Summ. J. 25 (“Plaintiffs do discuss abstinence with their patients when appropriate and medically effective to do so, particularly as one out of many strategies, and particularly for younger adolescents.“).
Sexual risk avoidance, as the agency understands it, is different from abstinence-until-marriage, which the Plaintiffs seem to view as medieval. Gov. Mot. Summ. J. 33 (quoting Admin. Rec. (AR) 125). Instead, it can involve various sexual abstentions, including “avoiding sexual activities that put an individual at risk for unwanted pregnancy, sexually transmitted infections or other associated risks.” AR 125. Individuals could avoid sexual risks in this way by limiting their sexual activities, limiting their sexual partners, and/or limiting the timing of when they engage in sex. See AR 125. The Plaintiffs’ arguments fail to show anything arbitrary or capricious about this nuanced approach.
The Plaintiffs insist that most social science researchers agree that an emphasis on abstinence is ineffective as a method of family planning, including for adolescents, see Pls.’ Opp. 25-27 (collecting studies), rendering the Government‘s “meaningful emphasis” goal bereft of a “rational connection between the facts found and the choice made.” Id. at 25 (quoting Motor Vehicle Mfrs. Ass‘n, 463 U.S. at 43). But this argument inaccurately paints the Government‘s “meaningful emphasis” discussion with the broad brush of critiques leveled at abstinence-only programs, and embodies an assumption that the “meaningful emphasis” priority must detract from other, “substantially more efficacious . . . methods.” See id. at 25-27 (characterizing this priority as “an abstinence-only ‘emphasis‘“). The Announcement merely encourages Title X providers to discuss healthy relationships and sexual risk avoidance, in a nuanced and research-informed way. However unpopular, decisions to choose forms of sexual abstinence have undeniable relevance to family planning, and the administrative record supports the Government‘s conclusion that a meaningful emphasis on this topic can be part of a well-reasoned approach to Title X programs. See, e.g., AR 887 (“[T]he Centers for Disease Control and Prevention . . . described abstinence as the ‘surest way to avoid transmission of sexually transmitted diseases,’ and abstinence
The Plaintiffs imagine a scenario in which a Title X provider “advise[s] an unmarried, healthy adult woman who wished to be sexually active and who came to the health center for contraception that she should instead consider abstaining from sex until marriage.” Id. at 26. They argue that this advice would violate providers’ legal obligation to “protect[] the dignity of the individual,” and avoid discrimination on the basis of marital status. See
The agency‘s focus on encouraging grant recipients to place a meaningful emphasis on sexual risk avoidance fits squarely within Title X‘s mandate to fund “voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services (including natural family planning methods . . . and services for adolescents).”
Second, the Plaintiffs challenge the Announcement‘s decision to emphasize “[p]romoting provision of comprehensive primary health care services to make it easier for individuals to receive both primary health care and family planning services preferably in the same location, or through nearby referral providers.” 2018 FOA at 10. The Plaintiffs’ chief complaint is what they consider this a preference for on-site primary care, Pls.’ Opp. 28, since they already refer patients to primary care providers. See Gov. Mot. Summ. J. 36 n.26. The parties therefore dispute the import of the comma and the disjunctive “or” in the phrase “in the same location, or through nearby referral providers,” with the Plaintiffs contending that the agency will score co-located grant applicants higher than those that use referrals, and the Government contending that both options receive equal preference.10 The Plaintiffs also argue that stand-alone Title X providers give the most effective Title X services, but the Government says overall health benefits Title X patients, and would be advanced by primary care options. Given the agency‘s avowed intention to favor both on-site and referral options equally, and the Plaintiffs’ admission that they have no objection to referrals, see Pls.’ Opp. 28 (citing
Third, the Plaintiffs contend that encouraging Title X providers to increase family participation in the family planning decisions of adolescents and adults will pressure providers to “push unwanted family involvement” on adult patients, Pls.’ Mot. Summ. J. 29, in violation of legal requirements that Title X services be client-centered, respectful of individual dignity, and coercion-free. Pls.’ Opp. 30-31 (citing
But the Announcement tracks Title X‘s approach to this question. After quoting the statute‘s family planning language almost verbatim, the Announcement states that “[t]his requirement applies throughout the program, extending to all individuals, couples and families seeking Title X services, as practicable, always being mindful of the health, safety, and best interest of the client.” 2018 FOA 8 (emphasis added). The Announcement goes on to detail family involvement as a program priority, just before emphasizing non-coercive, client-centered service as well. The agency thus favors:
- Assuring activities that promote positive family relationships for the purpose of increasing family participation in family planning and healthy decision-making; education and counseling that prioritize optimal health and life outcomes for every individual and couple; and other related health services, contextualizing Title X services within a model that promotes optimal health outcomes for the client[; and]
- Ensuring that all clients are provided services in a voluntary, client-centered and non-coercive manner in accordance with Title X regulations.
Id. at 10. Just a few paragraphs later, the agency details how family participation efforts should focus on adolescents, “[e]ncouraging participation of families, parents, and/or legal guardians in the decision of minors to seek family planning services; and providing counseling to minors on how to resist attempts to coerce minors into engaging in sexual activities.” Id. I discern no daylight—and certainly no conflict—between the Announcement and the reasoning of Title X itself. Such efforts are not arbitrary and capricious. By encouraging
Fourth, the Plaintiffs challenge the Announcement‘s encouragement to “cooperat[e] with community-based and faith-based groups,” 2018 FOA 11, contending that HHS thus “awards points . . . merely for partnering with faith-based organizations, regardless of the organization‘s ability to contribute to Title X‘s aims,” and helping applicants who may partner with “groups that discourage effective family planning, and contraception in particular.” Pls.’ Opp. 31. Like the other challenged points, this emphasis has often appeared in prior announcements. See, e.g. 2004 FOA at 4; 2009 FOA at 7. The Plaintiffs argue that HHS has not come forward with any evidence that faith-based groups are particularly helpful to Title X goals, making this emphasis arbitrary and capricious. Pls.’ Opp. 31. But the Plaintiffs themselves already partner with faith-based organizations, undermining their suggestion that faith-based groups are irrelevant to Title X. See Pls.’ Mot. Summ. J. 29-30 (“Plaintiffs frequently work with community-based groups of all kinds, including faith-based groups like local churches, youth groups, and others.“). And though the Plaintiffs object to other applicants receiving points for partnering with “groups that oppose Title X‘s basic mission,” this argument presumes facts not in the record. See id. at 30.11 Nothing requires partnership with counter-productive organizations. As the Government points out, this alleged injury is hypothetical and speculative, rather than actual or imminent, Gov. Mot. Summ. J. 37 (citing Bennett, 520 U.S. at 167), an argument to which the Plaintiffs fail to respond. See Pls.’ Opp. 31-32. Even if the Plaintiffs have standing to challenge this point, their own partnerships with faith-based groups illustrate that such linkages may benefit Title X providers by providing connections to communities in need of Title X services and strengthening enrollment and awareness programming, among other benefits. See Pls.’ Mot. Summ. J. 29-30. The Announcement‘s low-key encouragement to partner with community and faith-based organizations is not contrary to law, or arbitrary and capricious.
I conclude that the Government has shown that the Announcement‘s challenged priorities are not arbitrary and capricious, or otherwise contrary to law. Instead, the priorities fit easily within the Title X scheme, either by directly reinforcing the statute‘s priorities (avoiding sexual risk, and encouraging family participation) or by adopting complementary goals (transitions to primary care, and partnerships with faith-based groups) for which the agency has “good reasons.” Fox Television Stations, 556 U.S. at 515.
VI. CONCLUSION
By challenging a funding announcement before HHS awards any grants, the Plaintiffs ask this Court to intervene before anything of legal effect has occurred. But courts cannot review substantive objections to a non-final agency action, nor can they require formal rulemaking for a
Dated: July 16, 2018
TREVOR N. MCFADDEN
United States District Judge
Notes
The test Clarian Health applied is also instructive, although it applies mainly to alleged policy statements:
[T]wo lines of inquiry [] guide the determination of whether an action constitutes a legislative rule or a general statement of policy. One line of analysis considers the effects of an agency‘s action, inquiring whether the agency has (1) impose[d] any rights and obligations, or (2) genuinely [left] the agency and its decisionmakers free to exercise discretion. The second looks to the agency‘s expressed intentions, including “consideration of three factors: (1) the [a]gency‘s own characterization of the action; (2) whether the action was published in the Federal Register or the Code of Federal Regulations; and (3) whether the action has binding effects on private parties or on the agency. . . . [T]he two lines of analysis overlap at the inquiry into whether the action has binding effect, and we have consistently emphasized that this factor is the most important.
Clarian Health, 878 F.3d at 357 (citations and internal quotation marks omitted); see also Ctr. for Auto Safety, Inc. v. Nat‘l Highway Traffic Safety Admin., 452 F.3d 798, 806 (D.C. Cir. 2006) (applying the same test). These factors support the Government‘s characterization of the Announcement as a non-legislative rule. On the first line of inquiry, the Announcement imposed no legal rights or obligations, and leaves the final decisionmaker free to exercise discretion. On the second line of inquiry, (1) HHS characterizes the Announcement‘s challenged criteria as simply part of an intermediate scoring process, by which “[f]ederal staff and an independent review panel . . . assess all eligible applications.” 2018 Announcement at 43. (2) The Announcement was not published in the Federal Register or Code of Federal Regulations, (3) and it has no binding effects on private parties or the agency‘s final decision.