Planned Parenthood of Wisconsin, Inc. v. Azar

          Argued December 12, 2018

          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.

          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 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

          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 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 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 ...