United States District Court, District of Columbia
N. MCFADDEN, U.S.D.J.
Atlanta provides HIV testing, education, and prevention
services to high-risk populations in Atlanta, Georgia. In
2011, the Department of Health and Human Services'
Centers for Disease Control and Prevention
(“CDC”) awarded the organization a grant to
implement certain HIV prevention programs. When the project
period ended in 2016, the CDC announced a new funding
opportunity to provide similar services. AID Atlanta and over
130 other non-profits competed for funding. This time, AID
Atlanta did not win a grant, and it now challenges the
CDC's denial as arbitrary, capricious, and contrary to
federal law in violation of the Administrative Procedure Act
(“APA”). The Court finds that the agency's
decision was reasonable, sufficiently explained, based on a
robust evaluation process, and legally permissible. It will
thus grant summary judgment for the Defendants.
September 2016, the CDC solicited grant applications through
Funding Opportunity Announcement PS17-1704. Defs.' Mem.
in Supp. of Mot. for Summ. J. 2, ECF No. 40
(“Defs.' Mem.”). The Announcement noted that
the agency planned to allocate $50 million to about 30
community-based organizations over a five-year project period
(2017 - 2022). Id. The goal of the program is to
help the selected organizations provide HIV prevention
services for high-risk populations across the country.
Id. Available monies were divided into two service
categories; only Category A is relevant here. Id.
Any nonprofit or organization with a 501(c)(3) IRS status was
eligible to apply, so long as the entity could
“demonstrate that they have consistently provided HIV
prevention or care services to the selected target
population(s) for at least the last 24 months.” Admin.
R. without Category A Redactions 30, ECF No. 41-1
evaluated applications using a three-phase review process.
J.A. 40. In the first phase, all received applications were
reviewed for completeness and eligibility. Id. Next,
review panels scored eligible applicants based on several
criteria, including the proposed project approach,
performance measurement plans, and the organization's
implementation capacity. J.A. 40-42. Applicants could score a
maximum of 100 points in the Phase II review. Id.
The total possible score for each evaluative criterion was
published in the Announcement. Id. For example, an
applicant's proposed approach could receive a maximum of
40 points, including up to ten points for the project
overview and three points for outreach and recruitment plans.
J.A. 40-41. Each Phase II review panel consisted of CDC
volunteers who underwent an Objective Review Panel Reviewer
training and certified that they had no conflicts of interest
with any of the applicants. Explanatory Declaration to
Accompany the Admin. R. Filing 4, ECF. No. 33-1
final review phase, officials conducted a
“pre-decisional site visit” for selected
applicants. J.A. 43. Organizations could receive a maximum
site visit score of 550 points. Id. During the site
visit, CDC staff further assessed implementation capacity,
met with project management staff and leadership, and
conducted a technical review of application components.
funding determinations were based on applicants' total
scores and the “CDC's funding preferences.”
Id. For example, the agency desired to “ensure
[an] equitable balance in terms of targeted racial or ethnic
minority groups” and to achieve a “balance of
funded applicants based on (1) burden of HIV infection within
jurisdictions and (2) disproportionately affected geographic
areas, as measured by CDC.” Id.
combined the overall application scores and its funding
preferences using a “Funding Selection
Algorithm.” McCray Decl. at 7. See also J.A.
76-78; 100. To ensure geographically balanced funding, the
Algorithm used HIV data from the CDC's
“surveillance branch.” J.A. 100. This data
suggested that, in 2013, 38.5% of the high-risk target
population diagnosed with HIV resided in the South. J.A. 82.
The agency thus recommended that no more than 40% of the
available funding be allocated to organizations from southern
states. Id. The agency's regional balancing
meant that only one Category A service provider would be
selected from Georgia. J.A. 84. See also J.A. 85
(showing that the CDC decided to select only one service
provider per state from Virginia, South Carolina,
Mississippi, and Louisiana).
Algorithm ranked each applicant's combined Phase II and
III scores from highest to lowest, then applied the state and
regional caps to determine which organizations CDC would
fund. J.A. 100-101. From this analysis, 23 organizations were
awarded Category A grant money. J.A. 117.
Atlanta was one of over 130 organizations that submitted
applications. Defs.' Mem. at 10. The Atlanta HARM
Reduction Coalition, another Georgia-based provider, also
applied for Category A funding. Because the Coalition's
application scored higher than AID Atlanta's submission,
and because the agency decided to fund only one Georgia
provider, AID Atlanta was not awarded a grant. See
J.A. 117. The Coalition received higher scores during both
the Phase II objective review panel and the Phase III site
Atlanta now contends that the CDC awarded funds “in an
arbitrary and capricious manner and in bad faith.”
Pl.'s Cross-Mot. for Summ. J. 7, ECF No. 42
(“Pl.'s Mem.”). AID Atlanta believes that it
is the “most successful agency” that has
participated in the CDC's HIV prevention programs, and
that “the very fact that the CDC denied funding to its
most successful partner calls into question the methodology
used by the CDC is [sic] choosing its new partners.”
Id. at 2. The organization also states that it has a
“Federal assistance relationship” with the CDC
and suggests that it was impermissibly defunded in violation
of 45 C.F.R. § 75.207. Id. at 11.
the Federal Defendants disagree. They believe the CDC's
funding decisions were based on a “thorough and fair
evaluation of the applications submitted.” Defs.'
Mem. at 10. Both sides have moved for summary judgment based
on the administrative record.
must “hold unlawful and set aside agency action,
findings, and conclusions” that it determines are
“arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. §
706(2)(A). The scope of this review is “narrow and a
court is not to substitute its judgment for that of the
agency.” Motor Vehicle Mfrs. Ass'n v. State
Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983).
Rather, it must determine whether the agency
“examine[d] the relevant data and articulate[d] a
satisfactory explanation for its action including a
‘rational connection between the facts found and the
choice made.'” Id. (quoting Burlington
Truck Lines v. United States, 371 U.S. 156, 168 (1962)).
An agency's decision is arbitrary and capricious
“if the agency has relied on factors which Congress has
not intended it to consider, entirely failed to consider an