United States District Court, District of Columbia
PLANNED PARENTOOD OF WISCONSIN, INC. ., Plaintiffs,
ALEX M. AZAR II, in his official capacity as United States Secretary of Health and Human Services, ., Defendants.
N. MCFADDEN UNITED STATES DISTRICT JUDGE
Title X of the Public Health Service Act, the Secretary of
the U.S. Department of Health and Human Services (HHS) can
award federal grants for “voluntary family planning
projects” around the country, “which shall offer
a broad range of acceptable and effective family planning
methods and services.” 42 U.S.C. § 300(a). HHS
annually releases a funding opportunity announcement for the
program, explaining how it will evaluate grant applications,
a process that has historically included scoring based on
seven criteria. The Plaintiffs-three Planned Parenthood
affiliates and the National Family Planning and Reproductive
Health Association-challenge the 2018 Announcement's
addition of an eighth criterion to proposal scoring. This new
factor evaluates proposals based on their ability to address
the agency's program priorities and key issues enumerated
in the Announcement. The Plaintiffs particularly object to
the Announcement's focus on “[a] meaningful
emphasis on . . . the benefits of avoiding sexual risk,
” easier access to primary health care,
“increasing family participation, ” and
“[c]ooperation with . . . faith based
organizations.” Compl. Ex. A at 9-11. They argue that
the challenged language required notice-and-comment
rulemaking, violates the Title X statutory scheme, and is
arbitrary and capricious.
Government claims that the Announcement language is not
subject to judicial review-except about whether rulemaking
was required-because the Announcement is not “final
agency action” under 5 U.S.C. § 704, and
consideration of extra factors in Title X grant-making is
“committed to agency discretion” under 5 U.S.C.
§ 701(a)(2). On the merits, the Government argues that
the eighth criterion is only a rule of agency procedure
exempt from notice-and-comment rulemaking, and that the
agency's substantive priorities are consistent with Title
X's design, and not arbitrary and capricious.
parties seek summary judgment on the undisputed
administrative record. I conclude that the language in this
Announcement, which does not bind the final decisionmaker, is
not a “final agency action” reviewable under the
Administrative Procedure Act (APA). Although the
Plaintiffs' notice-and-comment claim is reviewable, the
eighth factor is a procedural rather than legislative rule,
and it is not arbitrary and capricious. The substantive
tweaks to the program priorities and key issues are neither
new nor incompatible with Title X, instead they rephrase
similar priorities and issues that appeared in prior funding
announcements without objection or notice-and-comment
rulemaking. I will therefore grant summary judgment for the
1970, Congress added Title X to the Public Health Service Act
to “assist in making comprehensive voluntary family
planning services readily available to all persons desiring
such services.” Pub. L. No. 91-572, § 2(1) (1970).
The statute authorizes the Secretary to:
[M]ake grants to . . . assist in the establishment and
operation of voluntary family planning projects which shall
offer a broad range of acceptable and effective family
planning methods and services (including natural family
planning methods, infertility services, and services for
adolescents). To the extent practical, entities which receive
grants or contracts under this subsection shall encourage
familiy [sic] participation in projects assisted under this
U.S.C. § 300(a). The statute lists four factors that
“the Secretary shall take into account” in making
grant awards: “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). The statute also gives the
Secretary authority to promulgate grant-making regulations.
Id. § 300a-4.
regulation details the agency's grant-making evaluation
What criteria will the Department of Health and Human
Services use to decide which family planning services
projects to fund and in what amount?
(a) Within the limits of funds available for these purposes,
the Secretary may award grants for the establishment and
operation of those projects which will in the
Department's judgment best promote the purposes of
section 1001 of the Act, taking into account:
(1) The number of patients, and, in particular, the number of
low-income patients to be served;
(2) The extent to which family planning services are needed
(3) The relative need of the applicant;
(4) The capacity of the applicant to make rapid and effective
use of the federal assistance;
(5) The adequacy of the applicant's facilities and staff;
(6) The relative availability of non-federal resources within
the community to be served and the degree to which those
resources are committed to the project; and
(7) The degree to which the project plan adequately provides
for the requirements set forth in these regulations.
42 C.F.R. § 59.7 (2016). This regulation has remained
substantially the same since the Title X program began.
Compare 36 Fed. Reg. 18467 (Sept. 15, 1971)
with 42 C.F.R. § 59.7 (2016).
Title X grant application process begins with a funding
opportunity announcement, which describes the program and
provides eligibility and evaluation criteria. 45 C.F.R.
§ 75.203. Each announcement recounts the statutory and
regulatory requirements for Title X programs and also
describes program priorities and key issues that set
“overarching goals for the Title X program.”
See, e.g., 1998 Funding Opportunity Announcement
(FOA) at *10726, Pls.' Mot. Summ. J. Ex. E, ECF No.
18-12. The agency used the announcement to
introduce a scoring system in 2001, with 100 points allocated
across seven criteria that correspond to the seven criteria
listed in 42 C.F.R. § 59.7. Decl. of Clare Coleman,
Pls.' Mot. Summ. J., ECF No. 18-4 (Coleman Decl.)
¶¶ 54-56. The announcements have often instructed
applicants to develop “[p]roject plans . . . that
address [that year's] Title X program priorities, ”
and to “provide evidence of the project's capacity
to address program priorities as they evolve in future
years.” See, e.g., 2010 FOA at 5, Mot. Dismiss
Ex. 11, ECF No. 25-10.
issued the 2018 Funding Opportunity Announcement
(Announcement or 2018 Announcement) in February 2018. Compl.
Ex. A, ECF No. 1-1. The Announcement added an eighth scored
criterion under which “[f]ederal staff and an
independent review panel will assess all eligible
applications.” Id. at 43. The eighth factor
awards up to 25 out of 100 points for the project plan's
ability to implement the “requirements set forth in the
priorities and key issues outlined [in] this funding
announcement.” Id. at 44. The Announcement
also added language to the fifth criterion, for which up to
10 points can be awarded, saying that the “adequacy of
the applicant's facilities and staff” would depend,
in part, on whether staff are “adequately trained to
carry out the program requirements, as well as the priorities
and key issues outlined in this announcement.”
Id. at 43. The Announcement set eight program
priorities and eight key issues. Id. at 9-11. This
resulted in 16 total program priorities and key issues, tied
to 35 potential points. The Plaintiffs object to only some of
the language in these priorities and key issues:
Program Priorities: Each year the
OPA [Office of Population Affairs] establishes program
priorities that represent overarching goals for the Title X
program. . . . Applicants should provide evidence of their
capacity to address program priorities. . . .
1. Assuring innovative high quality family planning and
related health services that will improve the overall health
of individuals, couples and families, with priority for
services to those of low-income families, offering, at a
minimum, core family planning services enumerated earlier in
this Funding Announcement. Assuring that projects offer a
broad range of family planning and related health services
that are tailored to the unique needs of the individual, that
include natural family planning methods (also known as
fertility awareness based methods) which ensure breadth and
variety among family planning methods offered, infertility
services, and services for adolescents; breast and cervical
cancer screening and prevention of STDs as well as HIV
prevention education, counseling, testing, and referrals;
2. Assuring activities that promote positive family
relationships for the purpose of increasing family
participation in family planning and healthy decision-making;
education and counseling that prioritize optimal health and
life outcomes for every individual and couple; and other
related health services, contextualizing Title X services
within a model that promotes optimal health outcomes for the
4. Promoting provision of comprehensive primary health care
services to make it easier for individuals to receive both
primary health care and family planning services preferably
in the same location, or through nearby referral providers,
and increase incentive for those individuals in need of care
choosing a Title X provider.
6. Encouraging participation of families, parents, and/or
legal guardians in the decision of minors to seek family
planning services; and providing counseling to minors on how
to resist attempts to coerce minors into engaging in sexual
Key Issues: In addition to program
priorities, the following key issues should be considered in
developing the project plan:
3. Cooperation with community-based and faith-based
5. A meaningful emphasis on education and counseling that
communicates the social science research and practical
application of topics related to healthy relationships, to
committed, safe, stable, healthy marriages, and the benefits
of avoiding sexual risk or returning to a sexually risk-free
status, especially (but not only) when communicating with
6. Activities for adolescents that do not normalize sexual
risk behaviors, but instead clearly communicate the research
informed benefits of delaying sex or returning to a sexually
Ex. A at 9-11.
announcements have contained similar priorities. For example,
from 2003 to 2011, the announcements emphasized that funding
applicants should provide access to abstinence counseling.
See, e.g., 2003 FOA at 4, Mot. Dismiss Ex. A, ECF
No. 25-10, 2011 FOA at 7, Mot. Dismiss Ex. I, ECF No. 25-10;
see also 2015 FOA at 8, Mot. Dismiss Ex. M, ECF No.
25-10 (emphasizing natural family planning methods). From
2003 to 2015, the announcements focused on providing
“related preventative health services” that
improve “the overall health of individuals”
rather than merely attending to reproductive health. See,
e.g., 2003 FOA at 4; 2015 FOA at 8. The previous
announcements have also urged applicants to encourage family
participation in the delivery of family planning services.
See, e.g., 2004 FOA at 4, Mot. Dismiss Ex. B, ECF
No. 25-10; 2010 FOA at 7, Mot. Dismiss Ex. H, ECF No. 25-10.
Finally, from 2004 to 2009, the funding announcements
encouraged applicants to partner with community-based and
faith-based organizations. See, e.g. 2004 FOA at 4;
2009 FOA at 7, Mot. Dismiss Ex. G, ECF No. 25-10.
Plaintiffs filed two suits that the parties agreed to
consolidate. The Plaintiffs moved for a preliminary
injunction, and the Government moved for dismissal or summary
judgment. I granted the parties' joint motion to
consolidate the Plaintiffs' Motion for a Preliminary
Injunction with the merits and to construe the parties'
cross motions as motions for summary judgment. Minute Order
of June 21, 2018.
prevail on a motion for summary judgment, a movant must show
that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986);
Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986).
“[A] party seeking summary judgment always bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the
[record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex, 477
U.S. at 323. Once this showing ...