Planned Parenthood of Wisconsin v. Alex Azar, II ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 12, 2018 Decided November 19, 2019
No. 18-5218
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
Consolidated with 18-5219
Appeals from the United States District Court
for the District of Columbia
(No. 1:18-cv-01035)
(No. 1:18-cv-01036)
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.
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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, Office of the Attorney General for the State
of Iowa, Janet T. Mills, Attorney General, Office of the
Attorney General for the State of Maine, Mark R. Herring,
Attorney General, Office of the Attorney General for the
Commonwealth of Virginia, Robert W. Ferguson, Attorney
General, Office of the Attorney General for the State of
Washington, Peter F. Kilmartin, Attorney General, Office of
the Attorney General for the State of Rhode Island, and Thomas
J. Donovan, Jr., Attorney General, Office of the Attorney
3
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.
Opinion for the Court filed by Circuit Judge KATSAS.
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
4
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
5
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).
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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 (1998). Article III of the Constitution limits
our jurisdiction to “actual, ongoing controversies,” Honig v.
Doe, 484 U.S. 305, 317 (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 (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 (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
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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
than an advisory opinion. See NRDC v. NRC, 680 F.2d 810,
814–15 (D.C. Cir. 1982).
To avoid mootness, the plaintiffs attempt to recast their
suit as challenging ongoing HHS policies. It is true that “a
plaintiff’s challenge will not be moot where it seeks declaratory
relief as to an ongoing policy.” Del Monte Fresh Produce Co.
v. United States, 570 F.3d 316, 321 (D.C. Cir. 2009). But the
plaintiffs alleged no such policy in the district court, where
their claims focused exclusively on the 2018 FOA. In fact, the
plaintiffs first alleged an ongoing policy in the final footnote of
their opening appellate brief. And only in the reply brief did
they identify the policy as one of using FOAs “to change the
Title X application review criteria, in violation of existing
regulations and without notice-and-comment rulemaking.”
Appellants’ Reply Br. 5. Thus, the plaintiffs twice have
forfeited any challenge to ongoing policies—first, by raising
no such challenges below, see Flynn v. Commissioner, 269
F.3d 1064, 1068–69 (D.C. Cir. 2001); and second, by fairly
raising such challenges only on reply here, see City of
Waukesha v. EPA, 320 F.3d 228, 250 n.22 (D.C. Cir. 2003) (per
curiam). The plaintiffs remain free to challenge ongoing HHS
policies in a separate action, but they have preserved no such
challenge here.
In any event, the intervening regulation moots the
challenge. After the reply brief asserted a policy “in violation
of existing regulations,” Appellants’ Reply Br. 5, HHS
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amended 42 C.F.R. § 59.7—the very provision that the
plaintiffs say was violated. With changed regulations now
governing a changed FOA, the record provides no support for
the allegation of an ongoing policy.
B
The plaintiffs further argue that this case is capable of
repetition yet otherwise would evade review. That exception
to mootness applies when “(1) the challenged action [is] in its
duration too short to be fully litigated prior to its cessation or
expiration, and (2) there [is] a reasonable expectation that the
same complaining party [will] be subjected to the same action
again.” Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per
curiam). The action that must be repeatable is the “precise
controversy” between the parties. People for the Ethical
Treatment of Animals v. Gittens, 396 F.3d 416, 422 (D.C. Cir.
2005) (PETA); see Del Monte, 570 F.3d at 322–24. In other
words, the capable-of-repetition exception permits
adjudication of an otherwise-moot case on the theory that it is
capable of repetition; the exception does not permit the
adjudication of one otherwise-moot case in anticipation of a
different live one. If the exception swept that broadly, it
would be inconsistent with “the Constitution’s requirement, set
forth in Article III, that courts resolve only continuing
controversies between the parties.” PETA, 396 F.3d at 422.
Here, the legal controversy teed up by the plaintiffs is not
capable of repetition. In general terms, that controversy is
whether the 2018 FOA violated the unamended version of 42
C.F.R. § 59.7. But the 2018 FOA has been superseded by a
very different 2019 FOA. And the amended regulation
substantially rewrites the very language invoked by the
plaintiffs. Under these circumstances, there is neither
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theoretical nor practical justification for adjudicating whether
the expired FOA violated the expired regulation.
The 2019 FOA differs from the 2018 FOA in at least six
important respects. First, the 2019 FOA encourages
abstinence counseling only for adolescents, whereas the 2018
FOA encouraged it for both adolescents and adults. Compare
2019 FOA at 15, with 2018 FOA at 11. Second, the 2019 FOA
encourages applicants either to offer primary-care services or
to refer patients to nearby providers, whereas the 2018 FOA
arguably encouraged only the former. Compare 2019 FOA at
15, with 2018 FOA at 10. Third, the 2019 FOA encourages
family participation in the planning decisions of minors only,
whereas the 2018 FOA encouraged family participation in the
decisions of both minors and adults. Compare 2019 FOA at
25, 47, with 2018 FOA at 10. Fourth, the 2019 FOA
emphasizes “interaction with community and faith-based
organizations to develop a network for client referrals,”
whereas the 2018 FOA encouraged such interaction with no
supporting explanation. Compare 2019 FOA at 16, with 2018
FOA at 11. Fifth, the 2019 FOA contains over a dozen
references to contraception, see 2019 FOA at 5, 8–9, 11–12,
37, whereas the 2018 FOA contained none. Sixth, the 2019
FOA allots 20 points for monitoring the quality of services
“according to the priorities” and another 10 points for
“effective and efficient implementation of the key issues.”
See 2019 FOA at 48–49. In contrast, the 2018 FOA allotted
10 points for adequate facilities and staff “to carry out the
program requirements, as well as the priorities and key issues”
in the FOA, and another 25 points for “effective and efficient
implementation” of the “priorities and key issues.” See 2018
FOA at 43–44. At oral argument, the plaintiffs acknowledged
that these differences are significant: “When you look at the
2019 FOA, there is no question that what the agency has done
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here is more moderate on the specific issues that we are
concerned about.” Oral Arg. at 3:39.
Moreover, the plaintiffs give us no basis to conclude that
HHS is likely to use the 2018 criteria again. When
“estimating the likelihood of an event’s occurring in the future,
a natural starting point is how often it has occurred in the past.”
Clarke v. United States, 915 F.2d 699, 704 (D.C. Cir. 1990) (en
banc). On this point, the plaintiffs’ own allegations cut
against them: they praise the past “stability of the Title X
program” and contend that the 2018 FOA introduced “dramatic
changes” to it. See J.A. 13 (Compl. ¶ 6). So we have no
reason to think that the 2018 provisions, as opposed to the 2019
provisions or any others, are likely to be used in the future.
To elide over the many differences between the 2018 and
2019 FOAs, the plaintiffs assert as capable of repetition the
broader question whether an FOA may add any review criteria,
without notice-and-comment rulemaking, beyond the precise
ones listed in section 59.7. But the unamended and amended
versions of the regulation differ in ways that bear on this point
as well. The unamended regulation provided that the
Secretary “may award grants … taking into account” seven
considerations. 42 C.F.R. § 59.7(a) (2018). In contrast, the
amended regulation provides that “applicants will be subject to
criteria for selection within the competitive grant review
process, including” four restructured and expanded
considerations. 42 C.F.R. § 59.7(c) (2019). This use of
“including” strongly suggests that the four considerations
enumerated in the amended regulation are not exclusive, so the
agency may, in any individual grantmaking cycle, consider
other factors as well. At a minimum, the amendment makes
any challenge under the new regulation materially different
from the plaintiffs’ challenges under the old regulation. The
same legal controversy is thus unlikely to recur.
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Our dissenting colleague argues that one of the plaintiffs’
challenges is capable of repetition—their “statutory” claim that
the APA required notice-and-comment rulemaking for the
changes made by the 2018 FOA, as distinct from their
“regulatory” claim that the changes violated 42 C.F.R. § 59.7.
Post at 1–2. However, the argument that notice-and-comment
rulemaking was required rested in significant part on the
proposition that section 59.7 set forth the exclusive criteria for
judging grant applications. See Appellants’ Br. 31–33. As
explained above, that premise was undercut when HHS
amended section 59.7 to create new criteria, which it now casts
as inclusive rather than exclusive. At a minimum, the “legal
questions” relevant to the notice-and-comment claim have
materially changed, so that claim too is not capable of
repetition. See PETA, 396 F.3d at 422–23. To be clear, we
do not decide whether future FOAs, with as-yet-unknown
terms, may require notice-and-comment rulemaking. Instead,
we hold only that we lack Article III jurisdiction to pre-judge
that question.
C
When a pending appeal becomes moot, our general
practice, following United States v. Munsingwear, Inc., 340
U.S. 36 (1950), is to vacate and remand with instructions to
dismiss. See, e.g., United States v. Schaffer, 240 F.3d 35, 38
(D.C. Cir. 2001) (en banc) (per curiam). The decision to
vacate reflects equity practice, so vacating is inappropriate
when the appellant “caused the mootness by voluntary action.”
U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18,
24–25 (1994). Here, the plaintiffs caused neither the
disbursement of 2018 grant funds (which they affirmatively
sought to prevent), nor the change in FOA terms after 2018,
nor the regulatory amendment in 2019. We therefore vacate
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the district court’s judgment and remand the case with
instructions to dismiss this case as moot.
So ordered.
SRINIVASAN, Circuit Judge, dissenting: In this case, the
plaintiffs challenge HHS’s adjustments in the 2018 FOA of the
criteria used to select funding recipients for voluntary family-
planning projects. My colleagues conclude that the plaintiffs’
challenge is moot and that the circumstances do not implicate
the capable-of-repetition exception to mootness. I respectfully
disagree. In my view, at least one of the plaintiffs’ claims is
capable of repetition yet evading review, such that the
challenge should go forward.
My colleagues emphasize that HHS has recently
promulgated an amended regulation setting out the
considerations taken into account in awarding funding. The
amended regulation, my colleagues reason, renders plaintiffs’
challenge to the 2018 FOA as violating the prior regulation
incapable of repetition: after all, insofar as the plaintiffs
contend that HHS’s changes to the funding criteria in the 2018
FOA are inconsistent with the prior regulation, that regulation
has been superseded. As a result, my colleagues conclude, that
claim cannot be considered capable of repetition.
Even if that is so, the plaintiffs also assert a separate claim,
one that is unaffected by the amended regulation. That claim
contends that the 2018 FOA’s adjustments to the funding
criteria violated the Administrative Procedure Act because the
adjustments were adopted without going through notice-and-
comment procedures. See Nat’l Family Planning &
Reproductive Health Ass’n Compl. ¶¶ 16, 97, 123–125, J.A.
116, 137, 144; accord Planned Parenthood Compl. ¶ 121, J.A.
48. That (statutory) claim of a violation of the APA’s notice-
and-comment requirements is distinct from, and does not
depend on, the (regulatory) claim of a violation of the prior
HHS regulation. The plaintiffs thus treated the APA notice-
and-comment claim as a distinct one in arguing for a
preliminary injunction, and the district court correspondingly
addressed the APA claim separately in its decision. See
Planned Parenthood of Wis., Inc. v. Azar, 316 F. Supp. 3d 291,
2
304–08 (D.D.C. 2018); Mem. of Law in Support of Pls.’ Mot.
for Prelim. Inj. 21–24.
In assessing whether that claim is capable of repetition, we
ask whether “the legal wrong complained of by the plaintiff”—
adjustment of the funding criteria without notice-and-comment
procedures—“is reasonably likely to recur.” Del Monte Fresh
Produce Co. v. United States, 570 F.3d 316, 324 (D.C. Cir.
2009). I believe it is. In fact, the grounds for the claim have
already recurred. The plaintiffs alleged that the 2018 FOA
changed the funding criteria without abiding by notice-and-
comment procedures. The following year, HHS again adjusted
the funding criteria in the 2019 FOA, see Maj. Op. 9–10, again
without going through notice-and-comment procedures. And
the amended regulation, as my colleagues construe it,
contemplates that FOAs in the future can likewise adjust the
funding criteria. See id. at 10. The amended regulation, in
short, does not stand in the way of HHS’s repeating the conduct
challenged by the plaintiffs as inconsistent with the APA—if
anything, the regulation invites that very conduct.
For those reasons, I would conclude that the capable-of-
repetition exception to mootness applies in this case. While my
colleagues conclude that this case is moot, nothing in the
court’s decision today prevents the plaintiffs (or any other
party) from reasserting an APA challenge to any adjustment to
the funding criteria in a future FOA. I do agree with my
colleagues in one respect: insofar as the plaintiffs’ challenge is
correctly considered mooted by the amended regulation, I
agree that the district court’s decision should be vacated under
United States v. Munsingwear, 340 U.S. 36 (1950). See Maj.
Op. 11–12.