Planned Parenthood of Greater v. Ushhs

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PLANNED PARENTHOOD OF GREATER No. 18-35920
WASHINGTON AND NORTH IDAHO;
PLANNED PARENTHOOD OF THE GREAT D.C. No.
NORTHWEST AND THE HAWAIIAN 2:18-cv-00207-
ISLANDS; PLANNED PARENTHOOD OF TOR
THE HEARTLAND,
Plaintiffs-Appellants,
OPINION
v.
U.S. DEPARTMENT OF HEALTH &
HUMAN SERVICES; ALEX M. AZAR II,
in his official capacity as Secretary of
the U.S. Department of Health and
Human Services; VALERIE HUBER, in
her official capacity as Senior Policy
Advisor for the Office of the Assistant
Secretary for Health at the
Department of Health and Human
Services,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, District Judge, Presiding
2 PLANNED PARENTHOOD V. USDHHS
Argued and Submitted November 7, 2019
Seattle, Washington
Filed January 10, 2020
Before: Ronald M. Gould and Jacqueline H. Nguyen,
Circuit Judges, and Gregory A. Presnell, * District Judge.
Opinion by Judge Gould;
Concurrence by Judge Nguyen
SUMMARY **
Teen Pregnancy Prevention Program
The panel reversed the district court’s dismissal of an
action brought by three regional Planned Parenthood
organizations against the Department of Health and Human
Services alleging that the Department’s 2018 Funding
Opportunity Announcements for funding programs to
combat teen pregnancy were contrary to the law as required
in their appropriation, the Teen Pregnancy Prevention
Program, which is the relevant part of the 2018 Consolidated
Appropriations Act.
Under the Teen Pregnancy Prevention Program, the
Department of Health and Human Services funds
*
The Honorable Gregory A. Presnell, United States District Judge
for the Middle District of Florida, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
PLANNED PARENTHOOD V. USDHHS 3
pregnancy-prevention programs, periodically issuing
Funding Opportunity Announcements that describe the
criteria for grant selection. The Program creates two funding
tiers. Tier 1’s explicit purpose is to replicate programs that
have been proven effective through rigorous evaluation to
reduce teenage pregnancy. Tier 2’s purpose is to develop,
replicate, refine, and test additional models and innovative
strategies for preventing teenage pregnancy. Planned
Parenthood alleged that the 2018 Funding Opportunity
Announcements favored or required abstinence-only
programs and required replication of unproven program
tools which were contrary to the Teen Pregnancy Prevention
Program. Planned Parenthood alleged that it could not
effectively compete under the new grant-making criteria.
The district court held that Planned Parenthood did not have
standing to challenge the 2018 Funding Opportunity
Announcements because Planned Parenthood did not
adequately plead injury-in-fact or redressability.
The panel first held that Planned Parenthood had
standing under the competitor standing doctrine, which
holds that the inability to compete on an equal footing in a
bidding process is sufficient to establish injury-in-fact. The
panel next held that even though the Department of Health
and Human Services had already spent the 2018 funds
elsewhere, plaintiff’s challenge to the 2018 Funding
Opportunity Announcements was not moot because it
satisfied the capable of repetition, yet evading review
exception to mootness. The panel noted that Planned
Parenthood could reasonably expect to be subject to the
same injury again and the injury was inherently shorter than
the normal life of litigation.
The panel exercised its equitable discretion to reach two
purely legal questions in the first instance. The panel held
4 PLANNED PARENTHOOD V. USDHHS
that the 2018 Tier 1 Funding Opportunity Announcement
was contrary to the Teen Pregnancy Prevention Program and
hence contrary to law. The panel noted that the Teen
Pregnancy Prevention Program requires that Tier 1 grantees
replicate programs proven effective through rigorous
evaluation. The panel then noted that the 2018 Funding
Opportunity Announcement required grantees to implement
elements of either the Center for Relationship Education’s
Systematic Method for Assessing Risk-Avoidance Tool
(SMARTool) or the Tool to Assess the Characteristics of
Effective Sex and STD/HIV Education Programs (TAC).
The panel concluded that neither SmartTool nor TAC was a
program and neither had ever been implemented, let alone
proven effective. The panel therefore concluded that the
Teen Pregnancy Prevention Program and the 2018 Tier 1
Funding Opportunity Announcement were irreconcilable.
The panel held that the 2018 Tier 2 Funding Opportunity
Announcement, which also requires programs to implement
the TAC and the SMARTool, was not contrary to law on its
face. The panel stated that while it was debatable whether
the SMARTool or TAC will facilitate “research and
demonstration grants to develop, replicate, refine, and test
additional models and innovative strategies for preventing
teenage pregnancy,” the Funding Opportunity
Announcement requirement was not contrary to the Teen
Pregnancy Prevention Program on its face. As to whether
the 2018 Tier 2 Funding Opportunity Announcement was
arbitrary and capricious in violation of the Administrative
Procedure Act, the panel held that this issue should be
decided by the district court in the first instance. The panel
remanded the balance of the case for further proceedings.
Concurring in part, Judge Nguyen agreed with the
majority that Planned Parenthood had standing and that the
PLANNED PARENTHOOD V. USDHHS 5
case was not moot, but she would remand for the district
court to address the merits of the challenge to the 2018
Funding Opportunity Announcements in the first instance.
COUNSEL
Andrew Tutt (argued), Drew A. Harker and Alexandra L.
Barbee-Garrett, Arnold & Porter Kaye Scholer LLP,
Washington, D.C.; Carrie Y. Flaxman and Richard Muniz,
Planned Parenthood Federation of America, Washington,
D.C.; for Plaintiffs-Appellants.
Jaynie R. Lilley (argued) and Mark B. Stern, Attorneys,
Appellate Staff; Joseph H. Hunt, Assistant Attorney
General; Joseph H. Harrington, United States Attorney;
Civil Division, United States Department of Justice,
Washington D.C.; for Defendants-Appellees.
Christopher Babbitt, Lynn Eisenberg, Webb Lyons, Jamie
Yood, Wilmer Cutler Pickering Hale and Dorr LLP,
Washington, D.C., for Amici Curiae Mayor and City
Council of Baltimore and King County, Washington.
Boris Bershteyn, Tansy Woan, and Collin A. Rose, Skadden,
Arps, Slate, Meagher & Flom LLP, New York, New York,
for Amici Curiae Members of Congress.
Michael J. Fischer, Chief Deputy Attorney General; Amber
Sizemore, Deputy Attorney General; Josh Shapiro, Attorney
General of Pennsylvania; Office of Attorney General,
Philadelphia, Pennsylvania; for Amici Curiae the
Commonwealths of Pennsylvania, Massachusetts, and
Virginia, and the States of California, Connecticut,
Delaware, Hawai‘i, Illinois, Iowa, Maryland, Michigan,
6 PLANNED PARENTHOOD V. USDHHS
Minnesota, Nevada, New Jersey, New York, North Carolina,
Oregon, Rhode Island, Vermont, and Washington, and the
District of Columbia.
Kathleen Hartnett and Brent K. Nakamura, Boies Schiller
Flexner LLP, Oakland, California; Melissa Shube, Boies
Schiller Flexner LLP, Washington, D.C.; for Amici Curiae
Dr. Ron Haskins and Andrea Kane, MPA.
OPINION
GOULD, Circuit Judge:
Planned Parenthood of Greater Washington and North
Idaho, Planned Parenthood of the Great Northwest and the
Hawaiian Islands, and Planned Parenthood of the Heartland
(collectively, Planned Parenthood) sued the Department of
Health and Human Services (HHS), alleging that HHS’s
2018 Funding Opportunity Announcements (FOAs) for
funding programs to combat teen pregnancy were contrary
to the law as required in their appropriation, the Teen
Pregnancy Prevention Program (TPPP), which is the
relevant part of the 2018 Consolidated Appropriations Act.
The district court dismissed the case for lack of standing,
holding that Planned Parenthood had not pleaded and could
not plead an injury-in-fact or redressability.
We reverse and remand. We first hold that Planned
Parenthood had standing under the competitor standing
doctrine and that the case is not moot because it satisfies the
capable of repetition, yet evading review exception to
mootness. We then exercise our equitable discretion to reach
two issues in the first instance, holding that the 2018 Tier 1
FOA was contrary to law and that the 2018 Tier 2 FOA was
PLANNED PARENTHOOD V. USDHHS 7
not. We remand the balance of the case to the district court
for further proceedings not inconsistent with this opinion.
I
A
In 2010, Congress created the TPPP. Consolidated
Appropriations Act, 2010, Pub. L. No. 111-117, 123 Stat.
3034, 3253 (2010). Under the TPPP, HHS funds pregnancy-
prevention programs, periodically issuing FOAs that
describe the criteria for grant selection. Applicants,
including public and private entities, submit proposals, and
HHS decides which applications to fund. The 2018 TPPP
appropriation is at issue here. Consolidated Appropriations
Act, 2018, Pub. L. No. 115-141, 132 Stat. 348, 733 (2018).
The statutory language is short, simple, and has remained
consistent since the program’s inception:
That of the funds made available under this
heading, $101,000,000 shall be for making
competitive contracts and grants to public
and private entities to fund medically
accurate and age appropriate programs that
reduce teen pregnancy and for the Federal
costs associated with administering and
evaluating such contracts and grants, of
which not more than 10 percent of the
available funds shall be for training and
technical assistance, evaluation, outreach,
and additional program support activities,
and of the remaining amount 75 percent shall
be for replicating programs that have been
proven effective through rigorous evaluation
to reduce teenage pregnancy, behavioral risk
8 PLANNED PARENTHOOD V. USDHHS
factors underlying teenage pregnancy, or
other associated risk factors, and 25 percent
shall be available for research and
demonstration grants to develop, replicate,
refine, and test additional models and
innovative strategies for preventing teenage
pregnancy . . . .
Id.; see also 123 Stat. at 3253 (using the same language).
The TPPP creates two funding tiers. Tier 1’s explicit
purpose is to “replicat[e] programs that have been proven
effective through rigorous evaluation to reduce teenage
pregnancy.” 132 Stat. at 733. Tier 2’s purpose is “to
develop, replicate, refine, and test additional models and
innovative strategies for preventing teenage pregnancy.” Id.
Tier 2 lets grantees test new programs, and programs that
prove effective then become eligible for Tier 1.
In 2015, HHS issued the 2015 FOAs and awarded each
Plaintiff-Appellant at least one grant. In 2018, HHS issued
new FOAs. Dep’t of Health & Human Servs.,
Announcement of Availability of Funds for Phase I
Replicating Programs (Tier 1) Effective in the Promotion of
Healthy Adolescence and the Reduction of Teenage
Pregnancy and Associated Risk Behaviors (2018)
(hereinafter 2018 Tier 1 FOA); Dep’t of Health & Human
Servs., Announcement of the Availability of Funds for Phase
I New and Innovative Strategies (Tier 2) to Prevent Teenage
Pregnancy and Promote Healthy Adolescence (2018)
(hereinafter 2018 Tier 2 FOA).
The critical difference between the 2015 FOAs and the
2018 FOAs is the requirement, under the 2018 FOAs, that
grantees incorporate all of the elements of either the Center
for Relationship Education’s Systematic Method for
PLANNED PARENTHOOD V. USDHHS 9
Assessing Risk-Avoidance Tool (SMARTool) or the Tool to
Assess the Characteristics of Effective Sex and STD/HIV
Education Programs (TAC). 2018 Tier 1 FOA at 12, 35;
2018 Tier 2 FOA at 11. The SMARTool is a “research-based
tool designed to help organizations assess, select, and
implement effective programs and curricula that support
sexual risk avoidance.” Ctr. for Relationship Educ.,
SMARTool 6 (2010) (hereinafter SMARTool). The TAC
“is an organized set of questions designed to help
practitioners assess whether curriculum-based programs
have incorporated the common characteristics of effective
programs.” Douglas Kirby, Lori A. Rolleri & Mary Martha
Wilson, Tool to Assess the Characteristics of Effective Sex
and STD/HIV Education Programs 1 (2007) (hereinafter
TAC).
The 2018 FOAs required that HHS evaluate grant
applications based on how effectively the applicants
implemented the SMARTool or the TAC. 2018 Tier 1 FOA
at 12, 35, 59; 2018 Tier 2 FOA at 11–12. The 2018 Tier 1
FOA allotted twenty-five points, of a total of one hundred,
for applicants’ implementation of either tool. 2018 Tier 1
FOA at 59. The 2018 Tier 2 FOA likewise allotted thirty
points. 2018 Tier 2 FOA at 12–13, 53–54.
B
After studying the 2018 FOAs, Planned Parenthood
decided not to bid for a grant. Instead, Planned Parenthood
sued HHS. Planned Parenthood alleged that both FOAs
favored or required abstinence-only programs, contrary to
the TPPP. Planned Parenthood also alleged that both FOAs
were contrary to the TPPP because the FOAs required
replication of the SMARTool or the TAC, which were not
proven programs. Under the new grant-making criteria,
10 PLANNED PARENTHOOD V. USDHHS
Planned Parenthood alleged, Planned Parenthood could not
effectively compete.
The district court held that Planned Parenthood did not
have standing to challenge the 2018 FOAs because Planned
Parenthood did not adequately plead injury-in-fact or
redressability. Planned Parenthood of Greater Wash. and
N. Idaho v. HHS, 337 F. Supp. 3d 976, 986, 988 (E.D. Wash.
2018).
Two other groups of similarly situated plaintiffs also
sued HHS, and the three cases were decided within a day of
each other. See id.; Multnomah Cty. v. Azar, 340 F.
Supp. 3d 1046 (D. Or. 2018); Planned Parenthood of N.Y.C.,
Inc. v. HHS, 337 F. Supp. 3d 308 (S.D.N.Y. 2018). In
Multnomah County v. Azar, the district court held, among
other holdings, that the plaintiffs had standing under the
competitor standing doctrine and enjoined the 2018 Tier 1
FOA because it was contrary to the TPPP. 340 F. Supp. 3d
at 1054–56, 1068–69. In Planned Parenthood of New York
City, the district court held that the plaintiffs had competitor
standing, enjoined the 2018 Tier 1 FOA because it was
contrary to law and its adoption was arbitrary and capricious,
and held that the 2018 Tier 2 FOA was not contrary to law
and that its adoption was not arbitrary and capricious. 337
F. Supp. 3d at 320–24, 331–42.
Appeals followed, but eventually HHS dropped its
appeals of the injunctions and Planned Parenthood dropped
its cross-appeals. Multnomah Cty. v. Azar, No. 18-35912
(9th Cir. filed Oct. 29, 2018), appeal dismissed per joint
stipulation; Planned Parenthood of N.Y.C., Inc. v. HHS, No.
1:18-CV-05680 (2d Cir. filed June 22, 2018), appeal
dismissed per joint stipulation. Meanwhile, HHS disbursed
the money available for grants under the 2018 Tier 1 FOA to
PLANNED PARENTHOOD V. USDHHS 11
a preexisting grantee and completed the grant process under
the 2018 Tier 2 FOA.
HHS then issued the 2019 Tier 1 FOA. Dep’t of Health
& Human Servs., Announcement of Availability of Funds
for Replication of Programs Proven Effective through
Rigorous Evaluation to Reduce Teenage Pregnancy,
Behavioral Risk Factors Underlying Teenage Pregnancy, or
Other Associated Risk Factors (Tier 1) – Phase I (2019)
(hereinafter 2019 Tier 1 FOA). Responding to the
injunctions of the 2018 Tier 1 FOA, HHS addressed
numerous alleged deficiencies. Id. at 9–10, 12. Most
importantly, the 2019 Tier 1 FOA did not require grantees to
replicate the SMARTool or the TAC. Id. at 12–13.
HHS also included language addressing how the
litigation had affected HHS’s plans for the grant program:
OAH 1 continues to intend to pursue a
substantially similar approach [as the 2018
Tier 1 FOA] through Tier 1 funding in the
future so as to optimally replicate effective
programs for teen pregnancy prevention.
Nevertheless, two United States District
Courts enjoined the issuance of awards under
the 2018 Tier 1 FOA on the basis of that
approach, and the appeal process for those
cases is not yet complete. Therefore, for the
purposes of this FOA, OAH is using the
description of programs eligible for
replication that is contained earlier in this
1
The OAH, representing the Office of Adolescent Health, is a part
of HHS, and has now merged with the Office of Population Affairs
within HHS.
12 PLANNED PARENTHOOD V. USDHHS
section, and the description of expectations of
recipients contained below . . . .”
Id.
II
We have jurisdiction under 28 U.S.C. § 1291. We
review standing de novo. Cetacean Cmty. v. Bush, 386 F.3d
1169, 1173 (9th Cir. 2004). We may exercise our equitable
discretion to reach the merits of a case when the court below
did not. See Singleton v. Wulff, 428 U.S. 106, 121 (1976);
United States v. Patrin, 575 F.2d 708, 712 (9th Cir. 1978).
III
Article III standing requires injury-in-fact, causation,
and redressability. Gill v. Whitford, 138 S. Ct. 1916, 1929
(2018). An injury-in-fact must be “concrete and
particularized,” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
(1992) (citing, inter alia, Allen v. Wright, 468 U.S. 737, 751
(1984)), and must be “actual or imminent,” id. (quoting
Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). Standing
is measured from a litigation’s beginning. White v. Lee, 227
F.3d 1214, 1243 (9th Cir. 2000) (citing Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 169–
71 (2000)).
Under the doctrine of competitor standing, “the inability
to compete on an equal footing in [a] bidding process” is
sufficient to establish injury-in-fact. Ne. Fla. Chapter of
Associated Gen. Contractors of Am. v. City of Jacksonville,
508 U.S. 656, 666 (1993); see also Parents Involved in Cmty.
Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 718–19
(2007). An agency action that increases competition tilts the
playing field for parties that were already competing, and
PLANNED PARENTHOOD V. USDHHS 13
those parties suffer an injury-in-fact. City of Los Angeles v.
Barr, 929 F.3d 1163, 1173 (9th Cir. 2019) (“[T]his inability
to compete on an even playing field constitutes a concrete
and particularized injury.”); Int’l Bhd. of Teamsters v. U.S.
Dep’t of Transp., 861 F.3d 944, 950 (9th Cir. 2017); Preston
v. Heckler, 734 F.2d 1359, 1365 (9th Cir. 1984).
A plaintiff need not participate in the competition; the
plaintiff need only demonstrate that it is “able and ready to
bid.” Ne. Fla. Chapter of Associated Gen. Contractors of
Am., 508 U.S. at 666; see also Gratz v. Bollinger, 539 U.S.
244, 261–62 (2003); Carroll v. Nakatani, 342 F.3d 934, 942
(9th Cir. 2003). It is a plaintiff’s ability and readiness to bid
that ensures an injury-in-fact is concrete and particular; the
requirement precludes the airing of generalized grievances.
See City of Los Angeles v. Barr, 929 F.3d at 1173. Entering
a bid makes the injury actual; deciding not to bid makes the
injury imminent. See Ne. Fla. Chapter of Associated Gen.
Contractors of Am., 508 U.S. at 664, 666.
Causation and redressability are generally implicit in
injury-in-fact under the competitor standing doctrine. Id. at
666 n.5 (“It follows from our definition of ‘injury in fact’
that petitioner has sufficiently alleged both that the city’s
ordinance is the ‘cause’ of its injury and that a judicial decree
directing the city to discontinue its program would ‘redress’
the injury.”). The key is that the injury is the increase in
competition rather than the ultimate denial of an application,
the loss of sales, or the loss of a job. See Wash. All. of Tech.
Workers v. DHS, 892 F.3d 332, 339–40 (D.C. Cir. 2018).
Framing the injury as such, causation and redressability then
derive from “[b]asic economic logic”—an agency’s change
of a competition’s rules causes the injury and a court’s
invalidation of the change redresses the injury. See Am. Inst.
of Certified Pub. Accountants v. IRS, 804 F.3d 1193, 1197–
14 PLANNED PARENTHOOD V. USDHHS
98 (D.C. Cir. 2015). A court does not have the power to
decide the winner of, or to establish the criteria for, a grant
competition, at least in this circumstance, but a court does
have the power to decide that particular criteria are
impermissible. See SEC v. Chenery Corp. (Chenery I), 318
U.S. 80, 94–95 (1943); Akins v. FEC, 101 F.3d 731, 738
(D.C. Cir. 1996), vacated on other grounds, 524 U.S. 11
(1998). A court can make sure that there is a fair and lawful
bidding process.
The need for an ample competitor standing doctrine to
secure this power is obvious. If Planned Parenthood did not
have standing, then the instant agency action would be
insulated from judicial review. The effects of an adverse
standing decision would echo through many corridors of the
law. Cf. Parents Involved, 551 U.S. at 718–720; City of Los
Angeles v. Barr, 929 F.3d at 1173.
We hold that Planned Parenthood had standing under the
competitor standing doctrine because the elements of
standing are satisfied.
Planned Parenthood alleged a competitive injury.
HHS’s FOAs under the TPPP establish grant-funding
competitions, and HHS required applicants to implement the
SMARTool or the TAC in the 2018 FOAs. 2018 Tier 1 FOA
at 12, 35; 2018 Tier 2 FOA at 12. Planned Parenthood
alleges that the requirement to use the SMARTool or the
TAC was statutorily impermissible. Planned Parenthood
also points to how the FOAs each allotted at least a quarter
of a grant applicant’s scoring rubric to the implementation
of one of the two tools. 2018 Tier 1 FOA at 59; 2018 Tier 2
FOA at 12–13, 53–54. It is plausible that the 2018 FOAs
impermissibly tilted the playing field, and the magnitude of
the alleged tilt is irrelevant.
PLANNED PARENTHOOD V. USDHHS 15
Planned Parenthood also alleged a redressable injury
(caused by the FOAs). Redressability (and causation) are
generally implicit in competitive injuries. See Ne. Fla.
Chapter of Associated Gen. Contractors of Am., 508 U.S. at
666 n.5; Am. Inst. of Certified Pub. Accountants, 804 F.3d at
1197–98. Here, the general rule applies. The 2018 FOAs
allegedly caused Planned Parenthood’s competitive injury,
and vacatur of the FOAs would redress the injury.
Because we hold that Planned Parenthood had standing,
we next address mootness.
IV
If something happens during litigation that makes relief
impossible, the case is moot. See U.S. Const. art. III, § 2, cl.
1; Church of Scientology of Cal. v. United States, 506 U.S.
9, 12 (1992). Mootness is related to standing, but the
exceptions to mootness suggest that it is more than “standing
set in a time frame.” Friends of the Earth, 528 U.S. at 190.
In other words, sometimes a case may not be moot even if
the plaintiff would not have standing to bring it today.
One such justiciability-saving exception is for
challenges to injuries that are “capable of repetition, yet
evading review.” Kingdomware Techs., Inc. v. United
States, 136 S. Ct. 1969, 1976 (2016) (quoting Spencer v.
Kemna, 523 U.S. 1, 17 (1998)). The exception requires (1)
the complaining party to reasonably expect to be subject to
the same injury again and (2) the injury to be of a type
inherently shorter than the duration of litigation. Id. Courts
often hold that administrative regulations in short cycles
satisfy the exception. Compare FEC v. Wis. Right to Life,
Inc., 551 U.S. 449, 462–63 (2007) (holding that regulation
of two-year election cycle satisfied the exception), and
Greenpeace Action v. Franklin, 14 F.3d 1324, 1329–30 (9th
16 PLANNED PARENTHOOD V. USDHHS
Cir. 1992) (holding that fishing regulation in less-than-one-
year cycle satisfied the exception), with Idaho Dep’t of Fish
& Game v. Nat’l Marine Fisheries Serv., 56 F.3d 1071, 1075
(9th Cir. 1995) (holding that fishing regulation in four-year
cycle did not satisfy the exception). Agencies’ cyclical
contracts and grants also often satisfy the exception. E.g.,
Kingdomware, 136 S. Ct. at 1976; City of Los Angeles v.
Barr, 929 F.3d at 1172–73.
The 2018 Tier 1 FOA would be moot because it has no
present legal effect—HHS spent the funds elsewhere and a
court cannot offer Planned Parenthood relief stemming from
legal obligations under that FOA. But Planned Parenthood’s
challenge to the 2018 Tier 1 FOA satisfies the capable of
repetition, yet evading review exception. First, Planned
Parenthood can reasonably expect to be subject to the same
injury again. HHS indicated so in its 2019 Tier 1 FOA,
stating that HHS “continues to intend to pursue a
substantially similar approach [as the 2018 Tier 1 FOA]
through Tier 1 funding in the future.” 2019 Tier 1 FOA at
12–13. A declination to renounce a practice is sufficient to
satisfy the exception, City of Los Angeles v. Barr, 929 F.3d
at 1173 (holding the exception satisfied because the agency
“ha[d] not agreed to stop giving bonus points for [challenged
scoring] factors in the future”), so it follows that an
affirmative announcement of intent to renew a practice is
sufficient, see City of Mesquite v. Aladdin’s Castle, Inc., 455
U.S. 283, 289 & n.11 (1982).
Second, the injury is inherently shorter than the normal
life of litigation. The Supreme Court has noted that a period
of two years is short enough to satisfy the exception. E.g.,
Kingdomware, 136 S. Ct. at 1976. For grant cycles like that
before us, the relevant length of time is the time between the
announcement of the grant program and the actual award of
PLANNED PARENTHOOD V. USDHHS 17
the grants. City of Los Angeles v. Barr, 929 F.3d at 1172.
Here, the grant process is only a few months long. See 2018
Tier 1 FOA at 1–4.
For the same reasons, or because the 2018 Tier 2 FOA is
ongoing—with a “Phase II” application process scheduled
for Spring 2020—the 2018 Tier 2 FOA is also not moot. Cf.
2018 Tier 2 FOA at 4.
We hold that this case is not moot. We next discuss
whether to reach the merits.
V
In general, an appellate court does not decide issues that
the trial court did not decide. Singleton, 428 U.S. at 120–21.
The general rule, however, is flexible—an appellate court
can exercise its equitable discretion to reach an issue in the
first instance. Quinn v. Robinson, 783 F.2d 776, 814 (9th
Cir. 1986) (citing Youakim v. Miller, 425 U.S. 231, 234
(1976)). When “proper resolution is beyond any doubt,”
Singleton, 428 U.S. at 121 (citing Turner v. City of Memphis,
369 U.S. 350 (1962)), when “injustice might otherwise
result,” id. (quoting Hormel v. Helvering, 312 U.S. 552, 557
(1941)), and when an issue is purely legal, Patrin, 575 F.2d
at 712, are exceptions to the general rule. The Ninth Circuit
has also considered the effect a delay would have, Quinn,
783 F.2d at 814, and whether “significant questions of
general impact are raised,” Guam v. Okada, 694 F.2d 565,
570 n.8 (9th Cir. 1982).
The purely legal issue exception deserves elaboration. A
purely legal issue is one for which the factual record is so
fully developed as to render any further development
irrelevant. See Patrin, 575 F.2d at 712. For a fully
developed record, not only must the record be complete, but
18 PLANNED PARENTHOOD V. USDHHS
it must be clear that a litigant could not “have tried his case
differently either by developing new facts in response to or
advancing distinct legal arguments against the issue.” Id.
Another way to state the purely legal exception is to say that
the decision to remand should not prejudice the party that
opposes the appellate court’s reaching a novel issue. See
Dream Palace v. Cty. of Maricopa, 384 F.3d 990, 1005 (9th
Cir. 2004); Patrin, 575 F.2d at 712.
A district court is usually best positioned to apply the law
to the record. See, e.g., Davis v. Nordstrom, Inc., 755 F.3d
1089, 1095 (9th Cir. 2014) (“While the record in this case is
fully developed, and Davis pressed her unconscionability
argument before the district court and did so again here, the
resolution of the issue is not clear, and for that reason we
decline to exercise our discretion to address the
unconscionability question in the first instance.”); Am.
President Lines, Ltd. v. Int’l Longshore Union, Alaska
Longshore Div., Unit 60, 721 F.3d 1147, 1157 (9th Cir.
2013) (reversing the district court’s holding that plaintiff
lacked standing but declining to decide whether defendant
violated the relevant statute or caused plaintiff’s alleged
damages); see also Dream Palace, 384 F.3d at 1005 (“Even
when a case falls into one of the exceptions to the rule
against considering new arguments on appeal, we must still
decide whether the particular circumstances of the case
overcome our presumption against hearing new
arguments.”). An appellate court should usually wait for the
district court to decide in the first instance.
An appellate court need not wait when a question could
not possibly be affected by deference to a trial court’s
factfinding or fact application, or a litigant’s further
development of the factual record. See, e.g., Turf Paradise,
Inc. v. Ariz. Downs, 670 F.2d 813, 821 (9th Cir. 1982)
PLANNED PARENTHOOD V. USDHHS 19
(deciding whether the provisions of a lease were a per se
violation of the Sherman Act); Wong v. Bell, 642 F.2d 359,
362 (9th Cir. 1981) (declining to definitively weigh in on the
district court’s holding that plaintiffs lacked standing but
deciding to affirm the dismissal because the plaintiffs failed
to state a claim). This is true for the same reason that we
sometimes reach statutory interpretation arguments on
appeal that were not made below. See, e.g., Pocatello Educ.
Ass’n v. Heideman, 504 F.3d 1053, 1060 & n.5 (9th Cir.
2007) (exercising discretion to consider First Amendment
forum-analysis argument, not made below, in determining a
state statute to be unconstitutional), rev’d on other grounds
sub nom. Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353
(2009); Ariz. Cattle Growers’ Ass’n v. U.S. Fish and
Wildlife, 273 F.3d 1229, 1241 (9th Cir. 2001) (“We maintain
the discretion to review a purely legal issue, including the
interpretation of a statute . . . .”).
At times, a case presents with some issues amenable to
first decision on appeal and with other issues not so
amenable. In such circumstances, we can decide one issue
and remand another. For example, in Quinn v. Robinson we
decided to reach, in the first instance, a probable cause issue
because we determined it was “clear,” while we remanded a
statute-of-limitations issue because it was “quite complex
and involve[d] a discovery request as well.” 783 F.2d at 815.
VI
Whether the 2018 FOAs are contrary to the law as set
forth in the TPPP are purely legal questions, and we decide
20 PLANNED PARENTHOOD V. USDHHS
there is good reason for us to settle those questions now. 2
Beyond those questions, however, we decide to remand.
A
Agencies cannot exceed the scope of their authority as
circumscribed by Congress. City of Arlington v. FCC, 569
U.S. 290, 297–98 (2013); La. Pub. Serv. Comm’n v. FCC,
476 U.S. 355, 359 (1986). If an agency action is “contrary
to clear congressional intent,” the judiciary is bound to reject
the action. Chevron, U.S.A., Inc v. NRDC, 467 U.S. 837, 843
n.9 (1984); see 5 U.S.C. § 706(2)(A); FEC v. Democratic
Senatorial Campaign Comm., 454 U.S. 27, 32 (1981)
(“[Courts] must reject administrative constructions of a
statute . . . that are inconsistent with the statutory mandate or
that frustrate the policy that Congress sought to
implement.”).
To assess a statute, we start with the text and, unless
otherwise defined, give the words their ordinary meaning.
Sebelius v. Cloer, 569 U.S. 369, 376 (2013). Reading the
statute here, we start and end our analysis by determining
2
Judge Nguyen’s concurrence agrees that Planned Parenthood had
standing and that the case is not moot, but would instead remand the
merits issues to afford the parties a new opportunity to address them.
However, HHS did have the opportunity to address the merits issues,
because Planned Parenthood did so in its opening brief and HHS chose
to address standing and mootness but not the merits in its response. Also,
HHS had filed briefing on the merits in the district court, which is before
us in the record. Nor did HHS ask for more time or length in which to
address those issues after we ordered supplemental briefing. For these
reasons, and because the issues here are purely legal issues, as to our
holding that the 2018 Tier 2 FOA was valid but the 2018 Tier 1 FOA
was contrary to law, it is in our opinion appropriate in our discretion to
reach the merits issues.
PLANNED PARENTHOOD V. USDHHS 21
that the statute is clear. See Conn. Nat. Bank v. Germain,
503 U.S. 249, 253–54 (1992).
Because we can decide whether the 2018 FOAs are
contrary to law without reference to any additional facts
beyond those now in the record, we exercise our discretion
to do so. See Pocatello Educ. Ass’n, 504 F.3d at 1060; Turf
Paradise, 670 F.2d at 821. The statutory interpretation in
this case is simple and straightforward, and we reach it
because the resolution is beyond doubt. See Singleton, 428
U.S. at 121.
We do not exercise this discretion lightly. Important to
our determination is the unnecessary delay that remand
would cause, Quinn, 783 F.2d at 814, and the general,
national impact of the case on many persons, Okada, 694
F.2d at 570 n.8. The delay remand would cause is
unnecessary in this case because the resolution is beyond
doubt.
In addition, the case has broad impact on society because
it involves a federal statute and concomitant agency action
with national effect. Three cases arising from these facts
have already reached decision. Planned Parenthood of
Greater Wash, 337 F. Supp. 3d at 976; Multnomah Cty. v.
Azar, 340 F. Supp. 3d at 1046; Planned Parenthood of
N.Y.C., 337 F. Supp. 3d at 308. Only this appeal, however,
went undismissed. Multnomah Cty. v. Azar, No. 18-35912
(9th Cir. filed Oct. 29, 2018), appeal dismissed per joint
stipulation; Planned Parenthood of N.Y.C., Inc. v. HHS, No.
1:18-CV-05680 (2nd Cir. filed June 22, 2018), appeal
dismissed per joint stipulation. In the meantime, HHS
issued the 2019 Tier 1 FOA, addressing many issues that
Planned Parenthood has challenged but also stating that HHS
“intend[s] to pursue a substantially similar approach through
Tier 1 funding [as the 2018 Tier 1 FOA] in the future.” 2019
22 PLANNED PARENTHOOD V. USDHHS
Tier 1 FOA at 12–13. The parties expect that HHS will issue
2020 FOAs. Whether the 2020 FOAs are more like their
2018 or their 2019 counterparts necessarily will be generally
significant, not only for the parties before us but for similarly
situated parties within the Ninth Circuit and nationwide.
B
We hold that the 2018 Tier 1 FOA is contrary to the
TPPP. The TPPP requires that Tier 1 grantees “replicate”
“programs” “proven effective through rigorous evaluation.”
132 Stat. at 733. The 2018 Tier 1 FOA requires that Tier 1
grantees implement each element of either the TAC or the
SMARTool. 2018 Tier 1 FOA at 12, 35. Neither the TAC
nor the SMARTool is a program and neither has ever been
implemented, let alone proven effective. The TPPP and the
2018 Tier 1 FOA are thus irreconcilable. The 2018 Tier 1
FOA is contrary to law.
This is plain as day based on dictionary definitions. See
United States v. Ezeta, 752 F.3d 1182, 1185 (9th Cir. 2014).
To replicate is to “duplicate,” to “copy exactly.” Replicate,
Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/replicate (last visited Nov. 14,
2019). A replication requires an original implementation.
The TAC and the SMARTool cannot be replicated because
they have never been implemented.
The TAC and the SMARTool have never been
implemented because they are tools, not programs. A
tool cannot be implemented. A program is “a plan or
system under which action may be taken toward a goal,”
a “curriculum,” a “syllabus.” Program, Merriam-
Webster Dictionary, https://www.merriam-webster.com/
dictionary/program (last visited Nov. 14, 2019).
PLANNED PARENTHOOD V. USDHHS 23
Neither the SMARTool nor the TAC comes near to
fitting that definition. By the SMARTool’s own definition
of itself, the SMARTool’s purpose is “to help organizations
assess, select, and implement effective programs and
curricula.” SMARTool at 6. Likewise, the TAC’s purpose
is “to help practitioners assess whether curriculum-based
programs have incorporated the common characteristics of
effective programs.” TAC at 1. The SMARTool and the
TAC are sets of elements that guide the selection of and
testing of programs—they are tools and are not in
themselves programs capable of replication.
Logically, then, the 2018 Tier 1 FOA would incorrectly
permit grants for programs not proven effective, contrary to
the TPPP. The 2018 Tier 1 FOA’s direction that grant
applicants “address and replicate each of the elements” of
the TAC or the SMARTool, 2018 Tier 1 FOA at 12,
contradicts the TPPP’s direction that Tier 1 grants go only to
applicants whose programs are “proven effective,” 132 Stat.
at 733. To prove something effective requires a previous
implementation that one can test against a standard. See
Prove, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/proven (last visited Nov. 14, 2019).
No entity has created a program that implements each
element of either tool, so by definition no such program has
been proven effective.
HHS’s argument that the elements comprising the TAC
and the SMARTool are derived from proven programs is
unavailing. Even if the programs from which the tools were
developed were proven effective, the TPPP appropriation
does not permit HHS to fund grantees under Tier 1 that
create new programs by reference to subsets of elements of
proven programs. The TPPP’s Tier 1 allows only the
24 PLANNED PARENTHOOD V. USDHHS
replication of effective programs, not of elements of
programs.
C
The 2018 Tier 2 FOA, however, is not contrary to the
TPPP. Tier 2’s purpose, by contrast to that of Tier 1, is to
“develop, replicate, refine, and test additional models and
innovative strategies for preventing teenage pregnancy.”
132 Stat. at 733. The key difference between Tier 1 and Tier
2 is that Tier 1 funds “proven effective” programs whereas
Tier 2 encourages and tolerates innovations and is the
programs’ proving ground. Id. The 2018 Tier 2 FOA also
requires programs to implement the TAC and the
SMARTool. See 2018 Tier 2 FOA at 11–13. While it is
debatable whether these tools will facilitate “research and
demonstration grants to develop, replicate, refine, and test
additional models and innovative strategies for preventing
teenage pregnancy,” this requirement is not contrary to the
TPPP on its face. 132 Stat. at 733.
We hold that the 2018 Tier 1 FOA is contrary to law as
set forth in the TPPP on its face. 5 U.S.C. § 706(2)(A). But
we hold that the 2018 Tier 2 FOA is not contrary to the TPPP
on its face.
D
We turn next to the argument that the 2018 Tier 2 FOA
was arbitrary and capricious agency action. Because
consideration of this question could benefit from
development of the record and will benefit from decision by
the district court in the first instance, we decline to exercise
our discretion to decide that question and instead remand it
to the district court.
PLANNED PARENTHOOD V. USDHHS 25
Under the Administrative Procedure Act, a court must
invalidate arbitrary and capricious agency action. Id. When
a court undertakes this type of analysis, the court needs to
ensure a “rational connection between the facts [the agency]
found and the choice [the agency] made.” Motor Vehicle
Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co. (State Farm),
463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v.
United States, 371 U.S. 156, 168 (1962)). An agency, of
course, is generally empowered to change its policy. FCC
v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).
But the decision requires rationality and must be supported
by the record. 3
We need not say more because we decline to exercise our
discretion to decide whether the 2018 Tier 2 FOA was
3
The United States Government has created many federal agencies
to help implement important areas of the law. But whatever the agency,
it will be a creature of statute and bound by both its authorizing statute
and by its own regulations unless they are changed by procedures that
are lawful. A federal agency does not have unlimited power to exercise
its authority over persons whenever it pleases and without regard to what
its enabling statute authorized it to do. Further, federal agencies are
subject to general laws, and among these are the Administrative
Procedure Act, which would invalidate programs that are contrary to law
or those that are arbitrary and capricious. Such principles apply to all
federal agencies. For example, the EPA was formed to protect the
environment, but its actions must be consistent with the National
Environmental Policy Act, the Clean Air Act, the Clean Water Act, and
the Federal Insecticide, Fungicide, and Rodenticide Act, among others.
The Occupational Safety and Health Administration must follow the
Occupational Safety and Health Act. The National Labor Relations
Board must follow a group of labor laws, including the National Labor
Relations Act. The Food and Drug Administration must follow the
Federal Food, Drug, and Cosmetic Act and the Public Health Service
Act. Similarly here the Health and Human Services Administration must
follow its enabling legislation and particular legislation such as the Teen
Pregnancy Prevention Program.
26 PLANNED PARENTHOOD V. USDHHS
arbitrary and capricious agency action. The analysis in this
case will require intensive factfinding and fact application.
The district court must determine which facts the agency had
before it, which factors the agency assessed, which
conclusions the agency made, and whether the agency
provided a reasoned explanation for the change, among
many considerations. See Encino Motorcars, LLC v.
Navarro, 136 S. Ct. 2117, 2125–26 (2016); Whitman v. Am.
Trucking Ass’ns, 531 U.S. 457, 468–69 (2001); State Farm,
463 U.S. at 43. We hold that in the circumstances of this
case, the application of the arbitrary-and-capricious standard
should be determined by the district court in the first
instance.
VII
We hold: (1) that Planned Parenthood had standing under
the competitor standing doctrine; (2) that the challenge to the
2018 FOAs has not been rendered moot by the passage of
time and promulgation of a new FOA for 2019, because of
the capable of repetition, yet evading review standard; (3)
that the 2018 Tier 1 FOA is contrary to the TPPP and hence
contrary to law; (4) that the 2018 Tier 2 FOA is not contrary
to law on its face; (5) that whether the 2018 Tier 2 FOA is
arbitrary and capricious in violation of the APA should be
decided by the district court in the first instance. We remand
the balance of the case to the district court for further
proceedings not inconsistent with this opinion.
REVERSED and REMANDED.
PLANNED PARENTHOOD V. USDHHS 27
NGUYEN, Circuit Judge, concurring in part:
I agree with the majority that Planned Parenthood has
standing and that the case is not moot, but I would remand
for the district court to address the merits of the challenge to
the 2018 Funding Opportunity Announcements (“FOAs”) in
the first instance.
As the majority acknowledges, we generally “do[] not
consider an issue not passed upon below.” Quinn v.
Robinson, 783 F.2d 776, 814 (9th Cir. 1986) (quoting
Singleton v. Wulff, 428 U.S. 106, 120 (1976)). “Even when
a case falls into one of the exceptions to the rule against
considering new arguments on appeal, we must still decide
whether the particular circumstances of the case overcome
our presumption against hearing new arguments.” Dream
Palace v. Cty. of Maricopa, 384 F.3d 990, 1005 (9th Cir.
2004).
Here, the alleged risks of the delay associated with a
remand for the district court to evaluate the merits first are
speculative. 1 I agree with the majority that this case is one
of national import, but that dictates strongly in favor of
adhering to our general practice. Reasonably, HHS did not
even discuss the merits in its initial brief. Singleton, 428
U.S. at 120 (finding a party “justified in not presenting . . .
arguments [regarding new issues] to the Court of Appeals,
and in assuming, rather, that he would at least be allowed to
answer the complaint, should the Court of Appeals reinstate
1
Although the Department of Health and Human Services (“HHS”)
is expected to issue new multi-year FOAs in 2020, we do not know
whether the FOAs will resemble the contested 2018 FOAs, the modified
2019 Tier 1 FOA, or something entirely different. Other litigations could
spur further changes by HHS. And HHS may ultimately decide not to
issue 2020 FOAs.
28 PLANNED PARENTHOOD V. USDHHS
it”). HHS discussed the merits only in a short supplemental
brief, which we ordered to be limited to ten pages. 2 Given
the significance of this litigation, the parties should have a
full opportunity to address the merits of the 2018 FOAs
before the district court. I am not convinced that allowing
them to do so would result in any injustice to either party. I
therefore cannot join Parts VI and VII of the majority
opinion.
2
On October 7, 2019—exactly one month before oral argument—
we ordered both parties to file a supplemental letter brief addressing the
merits issues. We limited each party’s brief to ten double-spaced pages
(or 2,800 words).