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Planned Parenthood of Greater Washington v. U.S. Department of Health & Human Services

United States Court of Appeals, Ninth Circuit

January 10, 2020

Planned Parenthood of Greater Washington and North Idaho; Planned Parenthood of the Great Northwest and the Hawaiian Islands; Planned Parenthood of the Heartland, Plaintiffs-Appellants,
v.
U.S. Department of Health & Human Services; Alex M. Azar II, in his official capacity as Secretary of the U.S. Department of Health and Human Services; Valerie Huber, in her official capacity as Senior Policy Advisor for the Office of the Assistant Secretary for Health at the Department of Health and Human Services, Defendants-Appellees.

          Argued and Submitted November 7, 2019

          Appeal from the United States District Court for the Eastern District No. 2:18-cv-00207-TOR of Washington Thomas O. Rice, District Judge, Presiding

          Andrew Tutt (argued), Drew A. Harker and Alexandra L. Barbee-Garrett, Arnold & Porter Kaye Scholer LLP, Washington, D.C.; Carrie Y. Flaxman and Richard Muniz, Planned Parenthood Federation of America, Washington, D.C.; for Plaintiffs-Appellants.

          Jaynie R. Lilley (argued) and Mark B. Stern, Attorneys, Appellate Staff; Joseph H. Hunt, Assistant Attorney General; Joseph H. Harrington, United States Attorney; Civil Division, United States Department of Justice, Washington D.C.; for Defendants-Appellees.

          Christopher Babbitt, Lynn Eisenberg, Webb Lyons, Jamie Yood, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C., for Amici Curiae Mayor and City Council of Baltimore and King County, Washington.

          Boris Bershteyn, Tansy Woan, and Collin A. Rose, Skadden, Arps, Slate, Meagher & Flom LLP, New York, New York, for Amici Curiae Members of Congress.

          Michael J. Fischer, Chief Deputy Attorney General; Amber Sizemore, Deputy Attorney General; Josh Shapiro, Attorney General of Pennsylvania; Office of Attorney General, Philadelphia, Pennsylvania; for Amici Curiae the Commonwealths of Pennsylvania, Massachusetts, and Virginia, and the States of California, Connecticut, Delaware, Hawai'i, Illinois, Iowa, Maryland, Michigan,

          Minnesota, Nevada, New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, and Washington, and the District of Columbia.

          Kathleen Hartnett and Brent K. Nakamura, Boies Schiller Flexner LLP, Oakland, California; Melissa Shube, Boies Schiller Flexner LLP, Washington, D.C.; for Amici Curiae Dr. Ron Haskins and Andrea Kane, MPA.

          Before: Ronald M. Gould and Jacqueline H. Nguyen, Circuit Judges, and Gregory A. Presnell, [*] District Judge.

         SUMMARY [**]

         Teen Pregnancy Prevention Program

         The panel reversed the district court's dismissal of an action brought by three regional Planned Parenthood organizations against the Department of Health and Human Services alleging that the Department's 2018 Funding Opportunity Announcements for funding programs to combat teen pregnancy were contrary to the law as required in their appropriation, the Teen Pregnancy Prevention Program, which is the relevant part of the 2018 Consolidated Appropriations Act.

         Under the Teen Pregnancy Prevention Program, the Department of Health and Human Services funds pregnancy-prevention programs, periodically issuing Funding Opportunity Announcements that describe the criteria for grant selection. The Program creates two funding tiers. Tier 1's explicit purpose is to replicate programs that have been proven effective through rigorous evaluation to reduce teenage pregnancy. Tier 2's purpose is to develop, replicate, refine, and test additional models and innovative strategies for preventing teenage pregnancy. Planned Parenthood alleged that the 2018 Funding Opportunity Announcements favored or required abstinence-only programs and required replication of unproven program tools which were contrary to the Teen Pregnancy Prevention Program. Planned Parenthood alleged that it could not effectively compete under the new grant-making criteria. The district court held that Planned Parenthood did not have standing to challenge the 2018 Funding Opportunity Announcements because Planned Parenthood did not adequately plead injury-in-fact or redressability.

         The panel first held that Planned Parenthood had standing under the competitor standing doctrine, which holds that the inability to compete on an equal footing in a bidding process is sufficient to establish injury-in-fact. The panel next held that even though the Department of Health and Human Services had already spent the 2018 funds elsewhere, plaintiff's challenge to the 2018 Funding Opportunity Announcements was not moot because it satisfied the capable of repetition, yet evading review exception to mootness. The panel noted that Planned Parenthood could reasonably expect to be subject to the same injury again and the injury was inherently shorter than the normal life of litigation.

         The panel exercised its equitable discretion to reach two purely legal questions in the first instance. The panel held that the 2018 Tier 1 Funding Opportunity Announcement was contrary to the Teen Pregnancy Prevention Program and hence contrary to law. The panel noted that the Teen Pregnancy Prevention Program requires that Tier 1 grantees replicate programs proven effective through rigorous evaluation. The panel then noted that the 2018 Funding Opportunity Announcement required grantees to implement elements of either the Center for Relationship Education's Systematic Method for Assessing Risk-Avoidance Tool (SMARTool) or the Tool to Assess the Characteristics of Effective Sex and STD/HIV Education Programs (TAC). The panel concluded that neither SmartTool nor TAC was a program and neither had ever been implemented, let alone proven effective. The panel therefore concluded that the Teen Pregnancy Prevention Program and the 2018 Tier 1 Funding Opportunity Announcement were irreconcilable.

         The panel held that the 2018 Tier 2 Funding Opportunity Announcement, which also requires programs to implement the TAC and the SMARTool, was not contrary to law on its face. The panel stated that while it was debatable whether the SMARTool or TAC will facilitate "research and demonstration grants to develop, replicate, refine, and test additional models and innovative strategies for preventing teenage pregnancy," the Funding Opportunity Announcement requirement was not contrary to the Teen Pregnancy Prevention Program on its face. As to whether the 2018 Tier 2 Funding Opportunity Announcement was arbitrary and capricious in violation of the Administrative Procedure Act, the panel held that this issue should be decided by the district court in the first instance. The panel remanded the balance of the case for further proceedings.

         Concurring in part, Judge Nguyen agreed with the majority that Planned Parenthood had standing and that the case was not moot, but she would remand for the district court to address the merits of the challenge to the 2018 Funding Opportunity Announcements in the first instance.

          OPINION

          GOULD, CIRCUIT JUDGE

         Planned Parenthood of Greater Washington and North Idaho, Planned Parenthood of the Great Northwest and the Hawaiian Islands, and Planned Parenthood of the Heartland (collectively, Planned Parenthood) sued the Department of Health and Human Services (HHS), alleging that HHS's 2018 Funding Opportunity Announcements (FOAs) for funding programs to combat teen pregnancy were contrary to the law as required in their appropriation, the Teen Pregnancy Prevention Program (TPPP), which is the relevant part of the 2018 Consolidated Appropriations Act. The district court dismissed the case for lack of standing, holding that Planned Parenthood had not pleaded and could not plead an injury-in-fact or redressability.

         We reverse and remand. We first hold that Planned Parenthood had standing under the competitor standing doctrine and that the case is not moot because it satisfies the capable of repetition, yet evading review exception to mootness. We then exercise our equitable discretion to reach two issues in the first instance, holding that the 2018 Tier 1 FOA was contrary to law and that the 2018 Tier 2 FOA was not. We remand the balance of the case to the district court for further proceedings not inconsistent with this opinion.

         I

         A

         In 2010, Congress created the TPPP. Consolidated Appropriations Act, 2010, Pub. L. No. 111-117, 123 Stat. 3034, 3253 (2010). Under the TPPP, HHS funds pregnancy-prevention programs, periodically issuing FOAs that describe the criteria for grant selection. Applicants, including public and private entities, submit proposals, and HHS decides which applications to fund. The 2018 TPPP appropriation is at issue here. Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, 132 Stat. 348, 733 (2018).

         The statutory language is short, simple, and has remained consistent since the program's inception:

That of the funds made available under this heading, $101, 000, 000 shall be for making competitive contracts and grants to public and private entities to fund medically accurate and age appropriate programs that reduce teen pregnancy and for the Federal costs associated with administering and evaluating such contracts and grants, of which not more than 10 percent of the available funds shall be for training and technical assistance, evaluation, outreach, and additional program support activities, and of the remaining amount 75 percent shall be for replicating programs that have been proven effective through rigorous evaluation to reduce teenage pregnancy, behavioral risk factors underlying teenage pregnancy, or other associated risk factors, and 25 percent shall be available for research and demonstration grants to develop, replicate, refine, and test additional models and innovative strategies for preventing teenage pregnancy . . . .

Id.; see also 123 Stat. at 3253 (using the same language).

         The TPPP creates two funding tiers. Tier 1's explicit purpose is to "replicat[e] programs that have been proven effective through rigorous evaluation to reduce teenage pregnancy." 132 Stat. at 733. Tier 2's purpose is "to develop, replicate, refine, and test additional models and innovative strategies for preventing teenage pregnancy." Id. Tier 2 lets grantees test new programs, and programs that prove effective then become eligible for Tier 1.

         In 2015, HHS issued the 2015 FOAs and awarded each Plaintiff-Appellant at least one grant. In 2018, HHS issued new FOAs. Dep't of Health & Human Servs., Announcement of Availability of Funds for Phase I Replicating Programs (Tier 1) Effective in the Promotion of Healthy Adolescence and the Reduction of Teenage Pregnancy and Associated Risk Behaviors (2018) (hereinafter 2018 Tier 1 FOA); Dep't of Health & Human Servs., Announcement of the Availability of Funds for Phase I New and Innovative Strategies (Tier 2) to Prevent Teenage Pregnancy and Promote Healthy Adolescence (2018) (hereinafter 2018 Tier 2 FOA).

         The critical difference between the 2015 FOAs and the 2018 FOAs is the requirement, under the 2018 FOAs, that grantees incorporate all of the elements of either the Center for Relationship Education's Systematic Method for Assessing Risk-Avoidance Tool (SMARTool) or the Tool to Assess the Characteristics of Effective Sex and STD/HIV Education Programs (TAC). 2018 Tier 1 FOA at 12, 35; 2018 Tier 2 FOA at 11. The SMARTool is a "research-based tool designed to help organizations assess, select, and implement effective programs and curricula that support sexual risk avoidance." Ctr. for Relationship Educ., SMARTool 6 (2010) (hereinafter SMARTool). The TAC "is an organized set of questions designed to help practitioners assess whether curriculum-based programs have incorporated the common characteristics of effective programs." Douglas Kirby, Lori A. Rolleri & Mary Martha Wilson, Tool to Assess the Characteristics of Effective Sex and STD/HIV Education Programs 1 (2007) (hereinafter TAC).

         The 2018 FOAs required that HHS evaluate grant applications based on how effectively the applicants implemented the SMARTool or the TAC. 2018 Tier 1 FOA at 12, 35, 59; 2018 Tier 2 FOA at 11-12. The 2018 Tier 1 FOA allotted twenty-five points, of a total of one hundred, for applicants' implementation of either tool. 2018 Tier 1 FOA ...


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