Planned Parenthood of Wis., Inc. v. Azar

• Decision Date: 19 November 2019
• Docket Number: No. 18-5218,C/w 18-5219,18-5218
• Citation: 942 F.3d 512
• Parties: PLANNED PARENTHOOD OF WISCONSIN, INC., et al., Appellants v. Alex Michael AZAR, II, In His Official Capacity as United States Secretary of Health and Human Services and Diane Foley, in Her Official Capacity as Deputy Assistant Secretary for the Office of Population Affairs, Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

942 F.3d 512

PLANNED PARENTHOOD OF WISCONSIN, INC., et al., Appellants

v.Alex Michael AZAR, II, In His Official Capacity as United States Secretary of Health and Human Services and Diane Foley, in Her Official Capacity as Deputy Assistant Secretary for the Office of Population Affairs, Appellees

No. 18-5218

C/w 18-5219

United States Court of Appeals, District of Columbia Circuit.

Argued December 12, 2018

Decided November 19, 2019

Paul R.Q. Wolfson argued the cause for appellants. With him on the briefs were Kimberly A. Parker, Ari J. Savitzky, Leon T. Kenworthy, Ruth E. Harlow, Jennifer Dalven, Elizabeth Watson, Alan E. Schoenfeld, Helene T. Krasnoff, Carrie Y. Flaxman, and Arthur B. Spitzer.

Xavier Becerra, Attorney General, Office of the Attorney General for the State of California, Julie Weng-Gutierrez, Senior Assistant Attorney General, Karli Eisenberg, Deputy Attorney General, Brian E. Frosh, Attorney General, Office of the Attorney General for the State of Maryland, Maura Healey, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Lori Swanson, Attorney General, Office of the Attorney General for the State of Minnesota, Gubir S. Grewal, Attorney General, Office of the Attorney General for the State of New Jersey, Hector Balderas, Attorney General, Office of the Attorney General for the State of New Mexico, Barbara D. Underwood, Attorney General, Office of the Attorney General for the State of New York, Joshua H. Stein, Attorney General, Office of the Attorney General for the State of North Carolina, Ellen F. Rosenblum, Attorney General, Office of the Attorney General for the State of Oregon, Josh Shapiro, Attorney General, Office of the Attorney General for the Commonwealth of Pennsylvania, George Jepson, Attorney General, Office of the Attorney General for the State of Connecticut, Matthew P. Denn, Attorney General, Office of the Attorney General for the State of Delaware, Karl A. Racine, Attorney General, Office of the Attorney General for the District of Columbia, Russell A. Suzuki, Attorney General, Office of the Attorney General for the State of Hawaii, Lisa Madigan, Attorney General, Office of the Attorney General for the State of Illinois, Thomas J. Miller, Attorney General, Offi ce of the Attorn ey General for t he State of Iowa, Janet T. Mills, Attorney General, Of fice of the Attor ney General for t he State of Maine, Mark R. Herring, Attorney General, Office of the Attor ney General for th e Commonwealth of Virginia, Robert W. Ferguson, Attorn ey General, Office of the Attorney G eneral for the Sta te of Washington, Peter F. Kilmartin, Attorney General, Office of the Attorney Gen eral for the State of Rhode Island, an d Thomas J. Donovan, Jr., Attorney General, Office of the Attorney General for the State of Vermont, were on the briefs for amici curiae States of California, et al. in support of appellants.

Sasha Samberg-Champion, Lara N. Baker-Morrish, and Edward N. Siskel were on the brief for amici curiae The Cities of Columbus, Ohio, et al. in support of plaintiffs.

Jaynie R. Lilley, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief was Matthew M. Collette, Attorney.

Brad D. Schimel, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Wisconsin, and Misha Tseytlin, Solicitor General at the time the brief was filed, were on the brief for amicus curiae State of Wisconsin in support of the United States’ Response to this Court’s August 8 Order. Joshua L. Kaul, Attorney General, and Luke N. Berg and Steven C. Kilpatrick, Assistant Attorneys General, entered appearances.

Before: Srinivasan and Katsas, Circuit Judges, and Sentelle, Senior Circuit Judge.

Dissenting opinion filed by Circuit Judge Srinivasan.

Katsas, Circuit Judge:

In 2018, the Department of Health and Human Services issued a Funding Opportunity Announcement (FOA) soliciting applications for family-planning grants. The district court rejected claims that the FOA was inconsistent with a governing regulation and the Administrative Procedure Act. While this appeal was pending, HHS disbursed the grant funds for 2018, issued a modified FOA for 2019, and amended the regulation. We hold that these events mooted the appeal.

I

Title X of the Public Health Service Act authorizes the Secretary of Health and Human Services to award grants for voluntary family-planning projects. 42 U.S.C. § 300(a). The statute provides that the Secretary, in making these grants, "shall take into account the number of patients to be served, the extent to which family planning services are needed locally, the relative need of the applicant, and its capacity to make rapid and effective use of such assistance." Id. § 300(b). In 2000, HHS promulgated an implementing regulation stating that the Secretary "may award grants ... taking into account" seven considerations. 42 C.F.R. § 59.7 (2018) ; see Standards of Compliance for Abortion-Related Services in Family Planning Services Projects , 65 Fed. Reg. 41,270, 41,280 (July 3, 2000). The first four considerations tracked the ones listed in the statute; the final three were the adequacy of an applicant’s facilities and staff, the availability of other resources in the community, and the degree to which the project satisfied regulatory requirements.

HHS awards Title X grants through a competitive process. At the beginning of each grantmaking cycle, HHS issues an FOA stating "the criteria and process to be used to evaluate applications." 45 C.F.R. § 75.203(c)(5). In recent years, FOAs have set forth HHS’s "program priorities" and "key issues" for the upcoming year. An advisory panel scores the applications on a 100-point scale. HHS’s Deputy Assistant Secretary for Population Affairs makes final grant decisions on behalf of the Secretary.

The 2018 FOA varied from its predecessors in several respects. As relevant here, it updated the program priorities and key issues. Dep’t of HHS, Announcement of Anticipated Availability of Funds for Family Planning Services Grants , No. PA-FPH-18-001 at 9–11 (Feb. 23, 2018) (2018 FOA). It also modified the scoring process to award up to 35 of the 100 points based on the degree to which the proposed project would implement those priorities and issues. Id. at 43–44.

The plaintiffs are three affiliates of Planned Parenthood and the National Family Planning & Reproductive Health Association. In the district court, they argued that the seven considerations set forth in the regulation were exclusive and that any changes to the scoring criteria required notice-and-comment rulemaking. More narrowly, they argued that specific FOA provisions were inconsistent with the regulation—those that referenced abstinence, primary-care services, involvement of family members in planning decisions, partnerships with faith-based organizations, and natural family-planning methods as opposed to contraceptives.

The district court granted summary judgment for HHS. It concluded that the FOA was not final agency action, did not require notice-and-comment rulemaking, and was neither contrary to law nor arbitrary. Planned Parenthood of Wis., Inc. v. Azar , 316 F. Supp. 3d 291 (D.D.C. 2018).

After the plaintiffs appealed, HHS announced the Title X grants for 2018. The plaintiffs sought an interim injunction to prevent HHS from disbursing the grant money. We denied the injunction, and then HHS paid out the grants. The 2018 grantmaking cycle is now over.

After briefing concluded, HHS issued its FOA for fiscal year 2019, which significantly revises the challenged FOA provisions. See Dep’t of HHS, Announcement of Availability of Funds for Title X Family Planning Services Grants , No. PA-FPH-19-001 (Nov. 7, 2018) (2019 FOA).

After oral argument, HHS amended 42 C.F.R. § 59.7. Compliance with Statutory Program Integrity Requirements , 84 Fed. Reg. 7714, 7788 (Mar. 4, 2019). As modified, the regulation now provides that "applicants will be subject to criteria for selection within the competitive grant review process, including" four restructured and expanded considerations.

II

Before reaching the merits, we must first address whether we have jurisdiction. Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Article III of the Constitution limits our jurisdiction to "actual, ongoing controversies," Honig v. Doe , 484 U.S. 305, 317, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988), so we lose jurisdiction if a case becomes moot while an appeal is pending, Iron Arrow Honor Soc’y v. Heckler , 464 U.S. 67, 70, 104 S.Ct. 373, 78 L.Ed.2d 58 (1983) (per curiam). We have held that the initial burden of proving mootness lies with the party claiming it, whereas the opposing party bears the burden of showing that an exception to mootness applies. Honeywell Int’l, Inc. v. NRC , 628 F.3d 568, 576 (D.C. Cir. 2010). Nonetheless, we have an "independent obligation" to ensure that appeals before us are not moot. Am. Freedom Def. Initiative v. WMATA , 901 F.3d 356, 361 (D.C. Cir. 2018) (quotation omitted).

A

An appeal becomes moot if intervening events make it impossible for us to grant "effectual relief" to the prevailing party. Church of Scientology of Cal. v. United States , 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992). That is the case here. Now that the 2018 grant funds have been disbursed, this Court "cannot reach them in order to award relief." City of Houston v. HUD , 24 F.3d 1421, 1426 (D.C. Cir. 1994). Recognizing as much, the plaintiffs, now as appellants, disclaim any request for recoupment. Oral Arg. at 2:12 ("we are not asking the Court to recall the funds"). Nor could we provide any other form of meaningful injunctive relief; the 2018 grant process has long since concluded, and the 2018 FOA covers only that cycle. Barring use of the expired FOA thus would have no effect. Likewise, because the 2018 FOA is now inoperative, a declaration that it was unlawful would amount to nothing more...