Planned Parenthood of Greater Wash. v. U.S. Dep't of Health & Human Servs.

• Decision Date: 10 January 2020
• Docket Number: No. 18-35920,18-35920
• Citation: 946 F.3d 1100
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

946 F.3d 1100

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.

No. 18-35920

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 7, 2019 Seattle, Washington

Filed January 10, 2020

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 at 59. The 2018 Tier 2 FOA likewise allotted thirty points. 2018 Tier 2 FOA at 12–13, 53–54.

B

After studying the 2018 FOAs, Planned Parenthood decided not to bid for a grant. Instead, Planned Parenthood sued HHS. Planned Parenthood alleged that both FOAs favored or required abstinence-only programs, contrary to the TPPP. Planned Parenthood also alleged that both FOAs were contrary to the TPPP because the FOAs required replication of the SMARTool or the TAC, which were not proven programs. Under the new grant-making criteria, Planned Parenthood alleged, Planned Parenthood could not effectively compete.

The district court held that Planned Parenthood did not have standing to challenge the 2018 FOAs because Planned Parenthood did not adequately plead injury-in-fact or redressability. Planned Parenthood of Greater Wash. and N. Idaho v. HHS , 337 F. Supp. 3d 976, 986, 988 (E.D. Wash. 2018).

Two other groups of similarly situated plaintiffs also sued HHS, and the three cases were decided within a day of each other. See id. ; Multnomah Cty. v. Azar , 340 F. Supp. 3d 1046 (D. Or. 2018) ; Planned Parenthood of N.Y.C., Inc. v. HHS , 337 F. Supp. 3d 308 (S.D.N.Y. 2018). In Multnomah County v. Azar , the district court held, among other holdings, that the plaintiffs had standing under the competitor standing doctrine and enjoined the 2018 Tier 1 FOA because it was contrary to the TPPP. 340 F. Supp. 3d at 1054–56, 1068–69. In Planned Parenthood of New York City , the district court held that the plaintiffs had competitor standing, enjoined the 2018 Tier 1 FOA because it was contrary to law and its adoption was arbitrary and capricious, and held that the 2018 Tier 2 FOA was not contrary to law and that its adoption was not arbitrary and capricious. 337 F. Supp. 3d at 320–24, 331–42.

Appeals followed, but eventually HHS dropped its appeals of the injunctions and Planned Parenthood dropped its cross-appeals. Multnomah Cty. v. Azar , No. 18-35912 (9th Cir. filed Oct. 29, 2018), appeal dismissed per joint stipulation ; Planned Parenthood of N.Y.C., Inc. v. HHS , No. 1:18-CV-05680 (2d Cir. filed June 22, 2018), appeal dismissed per joint stipulation . Meanwhile, HHS disbursed the money available for grants under the 2018 Tier 1 FOA to a preexisting grantee and completed the grant process under the 2018 Tier 2 FOA.

HHS then issued the 2019 Tier 1 FOA. Dep’t of Health & Human Servs., Announcement of Availability of Funds for Replication of Programs Proven Effective through Rigorous Evaluation to Reduce Teenage Pregnancy, Behavioral Risk Factors Underlying Teenage Pregnancy, or Other Associated Risk Factors (Tier 1) – Phase I (2019) (hereinafter 2019 Tier 1 FOA). Responding to the injunctions of the 2018 Tier 1 FOA, HHS addressed numerous alleged deficiencies. Id. at 9–10, 12. Most importantly, the 2019 Tier 1 FOA did not require grantees to replicate the SMARTool or the TAC. Id. at 12–13.

HHS also included language addressing how the litigation had affected HHS’s plans for the grant program:

OAH¹ continues to intend to pursue a substantially similar approach [as the 2018 Tier 1 FOA] through Tier 1 funding in the future so as to optimally replicate effective programs for teen pregnancy prevention. Nevertheless, two United States District Courts enjoined the issuance of awards under the 2018 Tier 1 FOA on the basis of that approach, and the appeal process for those cases is not yet complete. Therefore, for the purposes of this FOA, OAH is using the description of programs eligible for replication that is contained earlier in this section, and the description of expectations of recipients contained below ...."

Id .

II

We have jurisdiction under 28 U.S.C. § 1291. We review standing de novo . Cetacean Cmty. v. Bush , 386 F.3d 1169, 1173 (9th Cir. 2004). We may exercise our equitable discretion to reach the merits of a case when the court below did not. See Singleton v. Wulff , 428 U.S. 106, 121, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) ; United States v. Patrin , 575 F.2d 708, 712 (9th Cir. 1978).

III

Article III standing...