Planned Parenthood of Greater Washington and North Idaho v. United States Department of Health & Human Services, No. 18-35920 (9th Cir. 2020)
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Planned Parenthood filed suit against HHS, alleging that the agency'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 Ninth Circuit reversed the district court's dismissal of the action, holding 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. The panel explained 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 discretion to reach two issues in the first instance. First, the panel held that the 2018 Tier 1 FOA was contrary to law, because the 2018 Tier 1 FOA's direction that grant applicants address and replicate each of the elements of the TAC or the SMARTool, contradicts the TPPP's direction that Tier 1 grants go only to applicants whose programs are proven effective. Second, the panel held that the 2018 Tier 2 FOA was not contrary to the TPPP on its face. The panel remanded the case to the district court for further proceedings.
Court Description: 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 * The Honorable Gregory A. Presnell, United States District Judge for the Middle District of Florida, sitting by designation. PLANNED PARENTHOOD V. USDHHS 3 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 4 PLANNED PARENTHOOD V. USDHHS 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 PLANNED PARENTHOOD V. USDHHS 5 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.
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