United States Court of Appeals, District of Columbia Circuit
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 ...