United States District Court, D. Oregon, Portland Division
MULTNOMAH COUNTY, an existing county government and a body politic and corporate, Plaintiff,
ALEX M. AZAR II, in his official capacity as Secretary, U.S. Department of Health and Human Services; VALERIE HUBER, in her official capacity as the Senior Policy Advisor for the Office of the Assistant Secretary of Health; and U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendants.
OPINION AND ORDER
You, United States Magistrate Judge.
Multnomah County (“the County”) has brought this
action to enjoin the administration of the 2018 application
and selection process for Teen Pregnancy Prevention Program
(“TPP Program”) grants by defendants U.S.
Department of Health and Human Services (“HHS”),
Secretary Alex M. Azar II, and Senior Policy Advisor Valerie
Huber (collectively “defendants”). Am. Compl.
¶ 1, ECF #28. The County alleges four claims: In Count
One, the County asserts that the 2018 Tier 1 Funding
Opportunity Announcement (“2018 Tier 1 FOA”) must
be vacated under the Administrative Procedures Act, 5 U.S.C.
§ 706(2)(A) (“APA”) because it is not in
accordance with law, specifically the Consolidated
Appropriations Act, 2018, Pub. L. No. 115-141, 132 Stat. 348,
733 (2018) (“2018 CAA”), the Purpose Statute, 31
U.S.C. § 1301(a), and the Appropriations Clause, Art. I,
§ 9, cl. 7. Id. ¶¶ 97-104. In Count
Two, the County claims that under the APA, the 2018 Tier 1
FOA is arbitrary and capricious and defendants have abused
their discretion. Id. ¶¶ 105-11. Count
Three alleges that the 2018 Tier 1 FOA violates the APA in
that it is contrary to HHS regulations, specifically 45
C.F.R. § 87.3(1). Id. ¶¶ 112-16.
Finally, in Count Four, the County asserts that the 2018 Tier
1 FOA is an ultra vires action. Id. ¶¶
County has filed a Motion for Preliminary Injunction and
Partial Summary Judgment with respect to Counts One, Two, and
Four. ECF #29. Defendants have filed a Motion to Dismiss
or for Summary Judgment against all counts. ECF #42.
court has federal question jurisdiction over this action. 28
U.S.C. § 1331. All parties have consented to allow a
Magistrate Judge to enter final orders and judgment in this
case in accordance with Fed.R.Civ.P. 73 and 28 U.S.C. §
636(c). For the reasons set forth below, the County's
motion for summary judgment with respect to Counts One and
Four is granted, and defendants' motion for summary
judgment on those claims is denied. The County's motion
for preliminary injunction is denied as moot. The motions for
summary judgment on Counts Two and Three are also denied as
Congress first became involved with sexual-health education
in the early 1900s, the passage of the Adolescent Family Life
Act in 1982 provides the necessary context to frame the
issues here. Pub. L. No. 97-35, 95 Stat. 582 (1981) (codified
at 42 U.S.C. § 300z). From 1982 until 2010, Congress
funded “abstinence education” with the purpose of
promoting “abstinence from sexual
activity.” During this time, Congress funded
“educational or motivational program[s]” that had
the “exclusive purpose [of] teaching the social,
psychological, and health gains to be realized by abstaining
from sexual activity.” 42 U.S.C. § 710(2)(A)
(2000). These programs taught “abstinence from sexual
activity outside marriage as the expected standard for all
school age children, ” and “that sexual activity
outside of the context of marriage is likely to have harmful
psychological and physical effects.” Id.
§§ 710(2)(B), (E) (2000). To date, Congress has
continued funding programs that promote abstinence from
non-marital sexual activity. See 2018 CAA, 132 Stat. at 733
(appropriating $25 million in FY 2018 for “making
competitive grants which exclusively implement education in
sexual risk avoidance”); 42 U.S.C. § 710 (2018
Suppl.) (appropriating $75 million in FY 2018 to Sexual Risk
Avoidance Education Programs under Title V of the Social
in fiscal year 2010, Congress charted a new course by
creating the Teen Pregnancy Prevention (“TPP”)
Program. See Consolidated Appropriations Act of 2010, Pub. L.
No. 111-117, 123 Stat. 3034, 3253 (2009) (“2010
CAA”); H.R. Rep. No. 111-366, at 1040-41 (2009).
Through the TPP Program, Congress appropriated funds toward
sexual-health-education initiatives with evidence of
effectiveness, with few restrictions on the underlying
subject matter. Specifically, the 2010 CAA appropriated no
less than $110 million “to fund medically accurate and
age appropriate programs that reduce teen pregnancy, ”
no less than $75 million for “replicating programs that
have been proven effective through rigorous evaluation to
reduce teenage pregnancy, behavioral risk factors underlying
teenage pregnancy, or other associated risk factors”
(known as Tier 1 grants), no less than $25 million for
“for research and demonstration grants to develop,
replicate, refine, and test additional models and innovative
strategies for preventing teenage pregnancy” (known as
Tier 2 grants), and any remainder to “be available for
training and technical assistance, evaluation, outreach, and
additional program support activities.” Id.
Every year since 2010, including through fiscal year 2018,
Congress has appropriated between $100 million and $110
million to the TPP program with the same operative statutory
text as the 2010 CAA and the same 75% allocation for
replicating programs that have been proven effective through
rigorous evaluation and 25% allocation for research to
develop additional models and strategies. Compare 2010 CAA,
123 Stat. at 3253 with 2018 CAA, 132 Stat. at 733.
tandem with the creation of the TPP Program, HHS has
sponsored the “TPP Evidence Review, ” i.e., an
ongoing systematic review of TPP research to identify
programs with evidence of effectiveness in reducing teen
pregnancy, STIs, and associated sexual risk behaviors. ECF
#33-2. Every consolidated appropriations act since 2010 has
made funding available to conduct the TPP Evidence Review.
See, e.g., 2010 CAA, 123 Stat. at 3253 (appropriating $4,
455, 000 “to carry out evaluations (including
longitudinal evaluations) of teenage pregnancy prevention
approaches”); Consolidated and Further Continuing
Appropriations Act, 2015, Pub. L. No. 113- 235, 128 Stat.
2130, 2483 (2014) (appropriating $6.8 million for the same
purpose); 2018 CAA, 132 Stat. at 733 (same). “The TPP
Evidence Review is a joint effort sponsored by three
divisions within [HHS]: the Office of the Assistant Secretary
for Planning and Evaluation, the Family and Youth Services
Bureau within the Administration for Children and Families,
and the Office of Adolescent Health within the Office of the
Assistant Secretary for Health.” ECF #33-25, at 1. The
TPP Evidence Review “identifies, assesses, and rates
the rigor of program impact studies and describes the
strength of evidence supporting different program models.
Findings are used to identify program models meeting the
criteria for the HHS List of Evidence-Based Teen Pregnancy
Prevention Programs.” ECF #33-2, at 1. HHS contracts
with Mathematica Policy Research (“Mathematica”)
to conduct the review.
April 2010, Mathematica published the results of its initial
review in which it identified 28 programs proven effective in
preventing teen pregnancies, sexually transmitted infections
(“STIs”), or sexual risk behaviors. See ECF
#33-2, at 7-8, 15. At HHS's request, Mathematica has
updated its findings five additional times (in April 2012,
July 2014, February 2015, April 2016, and April 2018),
resulting in the identification of 20 additional programs
showing evidence of effectiveness in preventing teen
pregnancies, STIs, or sexual risk behaviors. ECF #33-2, at
12; ECF #33-25, at 1 (“the total No. of programs
meeting the review criteria for evidence of effectiveness is
now 48”); Mathematica Policy Research, Review Protocol
Version 5.0 at 1,
2009, through the Office of Adolescent Health
(“OAH”), HHS issued a Tier 1 Funding Opportunity
Announcement (“FOA”), soliciting applications for
five-year grants for fiscal years 2010 through 2014
(“First Cohort”). See ECF #33-3 (“2010
FOA”). In 2014, OAH issued two Tier 1 FOAs, soliciting
applications for five-year grants for fiscal years 2015
through 2019 (“Second Cohort”). ECF #33-8
(“2015 Tier 1A FOA”); ECF #33-9 (“2015 Tier
1B FOA”). Under the 2010 Tier 1 FOA, funding was
restricted to “evidence-based programs that have been
shown to reduce teenage pregnancy, behavioral risk factors
underlying teenage pregnancy, or other associated risk
factors.” ECF #33-3, at 3-4. The 2010 Tier 1 FOA
defined “[e]vidence-based program models” to mean
“[p]rogram models for which systematic empirical
research or evaluation has provided evidence of
effectiveness.” Id. at 44. Applicants could
either replicate programs identified as effective by
Mathematica's “independent, systematic review of
the evidence base, ” or replicate other programs if
they met “a set of stringent criteria, ”
including review by Mathematica “using the same
evidence review criteria” it used in its independent
review. Id. at 6-7. The 2015 Tier 1A and Tier 1B
FOAs similarly required that grantees replicate
“[p]rograms identified by HHS as having undergone a
rigorous evaluation [and] been shown to be effective at
preventing teen pregnancies, sexually transmitted infections,
and/or sexual risk behaviors.” ECF #33-8, at 79; ECF
#33-9, at 89.
2018, HHS requested “$0.00” or a “decrease
of $100, 808, 000 from the FY 2017” budget for the TPP
Program. ECF #33-16, at 6 (“The Budget eliminates the
TPP program.”). However, Congress declined the
invitation to eliminate the TPP Program when it issued the
2018 CAA, retaining the same operative text used in prior
consolidated appropriations acts since it created the
program. Compare 2010 CAA, 123 Stat. at 3253 with 2018 CAA,
132 Stat. at 733.
the Second Cohort of grants ran through fiscal year 2019, HHS
terminated 81 TPP Program grants without explanation on June
30, 2018. In four separate lawsuits, courts held that
HHS's actions were unlawful on grounds it violated the
APA. Healthy Teen Network v. Azar, No. CV
CCB-18-468, 2018 WL 1942171, at *7-*8 (D. Md. Apr. 25, 2018),
appeal docketed, No. 18-1709 (4th Cir. June 26, 2018);
Policy & Research, LLC v. United States Dep't of
Health & Human Servs., No. 18-CV-00346 (KBJ), 2018
WL 2184449, at *13 (D.D.C. May 11, 2018), appeal docketed,
No. 18-5190 (D.C. Cir. June 21, 2018); King Cty. v.
Azar, No. C18-0242-JCC, 2018 WL 2411759, at *7 (W.D.
Wash. May 29, 2018), appeal docketed, No. 18- 35606 (9th Cir.
July 27, 2018); Healthy Futures of Texas v. Dep't of
Health & Human Servs., No. 1:18-CV-992 (KBJ), 2018
WL 2471266, at *6 (D.D.C. June 1, 2018). On April 20, 2018,
the day after the court in Policy and Research orally
announced its decision that HHS's actions violated the
APA, HHS issued the 2018 Tier 1 FOA. Healthy Futures, 2018 WL
2471266, at *6.
2015, the County received a $6.25 million, five-year Tier 1B
grant as part of the Second Cohort so that it could offer
comprehensive sexual education through the Adolescents &
Communities Together (“ACT”) program. ECF #28,
¶ 86. The County alleges that it plans to compete for a
grant under the 2018 Tier 1 FOA. Id. ¶ 92. If
the County does not obtain some or all of its remaining
Second Cohort funding, it plans to use the funds it receives
through the 2018 Tier 1 FOA toward sustaining the ACT
program. Id. If the County is successful in
obtaining all of its Second Cohort funding, it would use the
funds from the 2018 Tier 1 FOA to expand evidence-based,
comprehensive sexual education. Id.
this court is the question of whether the 2018 Tier 1 FOA
issued on April 20, 2018, is lawful.
Consideration of Evidence Outside the Administrative Record
County has submitted a No. of extra-record materials in
support of its various arguments. Typically, judicial review
of an agency decision is restricted to documents in the
administrative record. 5 U.S.C. § 706; Fla. Power
& Light Co. v. Lorion, 470 U.S. 729, 744 (1985).
“When a reviewing court considers evidence that was not
before the agency, it inevitably leads the reviewing court to
substitute its judgment for that of the agency.”
Asarco, Inc. v. U.S. Envtl. Prot. Agency, 616 F.2d
1153, 1160 (9th Cir. 1980). However, “it is both
unrealistic and unwise to ‘straightjacket' the
reviewing court with the administrative record.”
It will often be impossible, especially when highly technical
matters are involved, for the court to determine whether the
agency took into consideration all relevant factors unless it
looks outside the record to determine what matters the agency
should have considered but did not. The court cannot
adequately discharge its duty to engage in a
‘substantial inquiry' if it is required to take the
agency's word that it considered all relevant matters.
Id. These conflicting considerations can be
If the reviewing court finds it necessary to go outside the
administrative record, it should consider evidence relevant
to the substantive merits of the agency action only for
background information . . . or for the limited purposes of
ascertaining whether the agency considered all the relevant
factors or fully explicated its course of conduct or grounds
Ninth Circuit has more recently explained that the court may
consider extra-record materials (1) if necessary to determine
whether the agency has considered all relevant factors and
has explained its decision, (2) when the agency has relied on
documents not in the record, (3) when supplementing the
record is necessary to explain technical terms or complex
subject matter, or (4) when the plaintiff makes a showing of
agency bad faith. Sw. Ctr. for Biological Diversity v.
U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996).
“These exceptions are to be narrowly construed, and the
party seeking to admit extra-record evidence initially bears
the burden of demonstrating that a relevant exception
applies.” San Luis & Delta-Mendota Water Auth.
v. Locke, 776 F.3d 971, 992-93 (9th Cir. 2014).
County asserts that the last two exceptions apply-the
extra-record materials are necessary to explain technical
terms and complex subject matter and to show the agency acted
in bad faith. ECF #58, at 12. This court does not have to
decide whether those exceptions apply because this matter can
be resolved without considering most of the extra-record
materials the County has proffered. Moreover, in those
instances where this court has considered extra-record
documents, it is because the second exception has been
satisfied, i.e., HHS relied on them in making its decision.
For example, while the 2010 and 2015 Tier 1 FOAs are not
contained in the administrative record, clearly HHS
considered them in making its decision to alter course with
the 2018 Tier 1 FOA. Also, the TPP Evidence Review is
referenced repeatedly in the administrative record. See,
e.g., Press Release, August 28, 2017, AR000029 (referring to
“TPP Program's approved list”); AR003250
(referring to TPP Evidence Review).
Article III Standing
establish Article III standing, the County “must have
(1) suffered an injury in fact, (2) that is fairly traceable
to the challenged conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial decision.
Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016),
as revised (May 24, 2016) (citing Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560-61 (1992)). “The
plaintiff, as the party invoking federal jurisdiction, bears
the burden of establishing these elements.”
do not assert that the County has failed to satisfy Article
III's injury-in-fact and causation requirements. ECF #42,
at 11-12. Rather, defendants assert that the County's
proposed relief-vacating the 2018 Tier 1 FOA-will not redress
its alleged injury. Defendants contend that if this court
vacates the 2018 Tier 1 FOA, the matter will have to be
remanded back to HHS; however, the appropriation must be used
by September 30, 2018, and it will be impossible to draft and
promulgate a new FOA, receive applications, and issue new
awards by that date. ECF #42, at 12. ECF #73, at 11. Thus,
defendants contend, vacating the 2018 Tier 1 FOA will deprive
every applicant-including the County-from receiving any
funds. ECF #42, at 12.
to defendants' contention, redressability does not hinge
on whether the 2018 Tier 1 FOA funds will revert to the
Treasury on September 30, 2018. “In general, a federal
agency's budget authority lapses on the last day of the
period of which funds were obligated.” Population
Inst. v. McPherson, 797 F.2d 1062, 1081 (D.C. Cir. 1986)
(citing 31 U.S.C. § 1502(a)). “After that date,
any unobligated funds revert to the Treasury.”
Id. (citing 31 U.S.C. § 1552(a)(2)).
“Nevertheless, it is well settled that federal courts
may award appropriated funds to a successful litigant even
after the statutory lapse date if, as here, the suit was
initiated on or before that date.” Id. (citing
Connecticut v. Schweiker, 684 F.2d 979, 996-99 (D.C.
Cir. 1982), cert. denied, 459 U.S. 1207 (1983)); 31 U.S.C.
§ 1502(b). That is because “[t]he equity powers
of the courts allow them to take action to preserve the
status quo of a dispute and protect their ability to decide a
case properly before them. In such situations, the courts
simply suspend the operation of a lapse provision and extend
the term of already existing budget authority.”
City of Houston, Tex. v. Dep't of Hous. & Urban
Dev., 24 F.3d 1421, 1426 (D.C. Cir. 1994) (citing
Rochester Pure Waters Dist. v. EPA, 960 F.2d 180,
184 (D.C. Cir. 1992)); see also Schweiker, 684 F.2d at 997
(“This court has repeatedly reaffirmed the power of
courts to order that funds be held available beyond their
statutory lapse date if equity requires.”) (citation
omitted); Nat'l Ass'n of Regional Councils v.
Costle, 564 F.2d 583, 588 (D.C. Cir. 1977)
(“Decisions that a court may act to prevent the
expiration of a budget authority which has not terminated at
the time suit is filed are completely consistent with the
accepted principle that the equity powers of the court allow
them to take action to preserve the status quo of a dispute.
. . .”). In this case, the court's ability to
exercise this equitable power is available because the County
filed suit before the appropriation is set to lapse.
Population Inst., 797 F.2d at 1081.
the County seeks redress for a “competitive
injury.” “[W]hen challenged agency conduct
allegedly renders a [competitor] unable to fairly compete for
some benefit, that [competitor] has suffered a sufficient
‘injury in fact' and has standing.”
Preston v. Heckler, 734 F.2d 1359, 1365 (9th Cir.
1984). “[E]conomic actors suffer an injury in fact when
agencies lift regulatory restrictions on their competitors or
otherwise allow increased competition against them . . . .
This doctrine of ‘competitor standing' is grounded
in the basic law of economics that increased competition
leads to actual injury.” Int'l Bhd. of
Teamsters v. U.S. Dep't of Transp., 861 F.3d 944,
950 (9th Cir. 2017) (citation omitted); see also Sherley
v. Sebelius, 610 F.3d 69, 72 (D.C. Cir. 2010)
(“Because the Guidelines have intensified the
competition for a share in a fixed amount of money, the
plaintiffs will have to invest more time and resources to
craft a successful grant application. That is an actual,
here-and-now injury.”). “The grant competitor is
not required to show that it would have received the grant
but for the disadvantage it faced. Rather, ‘the
“injury in fact” is the inability to compete on
an equal footing in the bidding process.'” City
of Los Angeles v. Sessions, 293 F.Supp.3d 1087, 1094
(C.D. Cal. 2018) (quoting Ne. Fla. Chapter of Associated
Gen. Contractors of Am. v. Jacksonville, 508 U.S. 656,
the County contends that “[t]he changed terms of the
new FOA have intensified the competition by allowing programs
that do not qualify under” the 2018 CAA to apply. ECF
#29, at 31. This is sufficient to allege a competitive
injury, and vacating the 2018 Tier 1 FOA is likely to redress
that injury. See Hispanic Affairs Project v.
Perez, 206 F.Supp.3d 348, 371 (D.D.C. 2016) (holding
that a competitive-standing plaintiff need only articulate
the “basic economic logic” undergirding its
claims to demonstrate redressability).
Reviewability Under Administrative Procedures Act
Final Agency Action
APA expressly declares itself to be a comprehensive remedial
scheme: it states that a ‘person suffering legal wrong
because of agency action, or adversely affected or aggrieved
by agency action within the meaning of a relevant statute, is
entitled to judicial review'. . . and then sets forth the
procedures for such review.” Western Radio Serv.
Co. v. United States Forest Service, 578 F.3d 1116, 1122
(9th Cir. 2009) (quoting 5 U.S.C. §§ 702, 704,
706). Judicial review is allowed “so long as the
decision challenged represents a ‘final agency action
for which there is no other adequate remedy in a
court.'” Id. (quoting Webster v.
Doe, 486 U.S. 592, 599 (1988)); 5 U.S.C. § 704; see
also Ukiah Valley Med. Ctr. v. FTC, 911 F.2d 261,
264 n.1 (9th Cir. 1990) (“[F]inality is . . . a
jurisdictional requirement.”) (citation omitted).
agency action to be final, it must (1) mark the consummation
of the agency's decision-making process and (2) be one by
which rights or obligations have been determined, or from
which legal consequences will flow. Bennett v.
Spear, 520 U.S. 154, 177-78 (1997). Regarding the first
prong of the test, finality requires that agency action
“must not be of a merely tentative or interlocutory
nature.” Id. at 178. Rather, the action must
be the agency's “last word on the matter.”
Whitman v. Am. Trucking Ass'ns, 531 U.S. 457,
478 (2001). “As the Supreme Court has stated, the core
question is whether the agency has completed its
decisionmaking process and whether the result of that
process is one that will directly affect the parties.”
Indus. Customers of Nw. Utilities v. Bonneville Power
Admin., 408 F.3d 638, 646 (9th Cir. 2005) (quoting
Franklin v. Massachusetts, 505 U.S. 788, 797 (1992))
(quotation marks and alteration omitted). Courts must ask
“whether the action amounts to a definitive statement
of the agency's position or has a direct and immediate
effect on the day-to-day operations' of the subject
party, or if immediate compliance with the terms is
expected.” Oregon Nat. Desert Ass'n v. U.S.
Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006)
(internal quotation marks and alteration omitted).
Importantly, the “finality element must be interpreted
in a pragmatic and flexible manner.” Id.
(internal quotation and alteration omitted). “It is the
effect of the action and not its label that must be
considered.” Id. at 985 (internal quotation
and citations omitted).
respect to the second prong, legal consequences flow from an
agency's decision that prohibits future federal funding.
Arizona State Bd. for Charter Sch. v. U.S. Dep't of
Educ., 391 F.Supp.2d 800, 802 (D. Ariz. 2005). Legal
consequences also flow from an agency's decision to
condition grant funding on compliance with the federal
government's interpretation of a statute. State ex
rel. Becerra v. Sessions, 284 F.Supp.3d 1015, 1031-32
(N.D. Cal. 2018).
contend there has been no final agency action because its
issuance of the 2018 Tier 1 FOA is merely the “first
step” in the decision-making process to award grants
and “[s]everal steps must follow the FOA for a grant to
be awarded.” ECF #42, at 14. However, while additional
steps must be taken to actually award grants, no further
steps need to be taken to disqualify applicants such as the
County from receiving grants at all. As the County contends,
“HHS's decision to adopt the unlawful criteria in
the 2018 Tier 1 FOA is unequivocal and imposes significant
legal and practical consequences on both the County and the
agency.” ECF #58, at 7.
the 2018 Tier 1 FOA plainly states:
We will review your application to determine whether it meets
the following responsiveness criteria. If your application
does not meet the responsiveness criteria, we will eliminate
it from the competition and it will not be reviewed.
(emphasis added). As part of the responsiveness criteria, an
applicant must demonstrate that “[o]ne of the two
eligible programs is clearly identified, ” i.e., the
Systematic Method for Assessing Risk-avoidance Tool
(“SMARTool”) and the Tool to Assess the
Characteristics of Effective Sex and STD/HIV Education
Programs (“TAC”). AR000043-44, 60. The 2018 Tier 1
FOA elsewhere reiterates that if the application fails to
meet the responsiveness criteria, “it will not be
reviewed and will receive no further consideration.”
AR000061-62 (emphasis in original). No. appeals are allowed.
the 2018 Tier 1 FOA unequivocally makes clear that if an
application fails to identify “one of the two eligible
programs, ” “it will not be reviewed and will
receive no further consideration.” AR000043-44, 61-62.
This eligibility requirement, which by its terms eliminates
an application from contention, amounts to the agency's
“last word on the matter.” Waiting to see which
projects are actually funded before calling this a final
agency action would force the County to engage in a futile
exercise that would not put the parties in any meaningfully
different posture than the one they are in now. Following
such an approach would improperly disregard the “effect
of the action” and fail to interpret finality in a
pragmatic way. Oregon Nat. Desert, 465 F.3d at 985.
also fail to acknowledge that the 2018 Tier 1 FOA is the
consummation of HHS's decision-making process. Before
drafting the 2018 Tier 1 FOA, HHS “reviewed the
rigorous evaluation studies of the TPP Program.” Reply
to Senator Murray, AR000442; see also Summary of Findings
from TPPP Grantees, Tier 1 (FY2010-2014), AR000024. In a
press release dated August 28, 2017, HHS announced that
“[t]he evidence tells us that most of these programs
are not working, ” “[c]ontinuing the TPP Program
as it is currently structured would be a waste of taxpayer
money, ” and it was “precisely for this reason
that HHS chose to end the [current] implementation of the TPP
Program.” AR000029. That HHS engaged in this
decision-making process further demonstrates that the 2018
Tier 1 FOA is its last word on eligibility criteria for TPP
funding in fiscal year 2018. See Whitman, 531 U.S.
at 479 (“Though the agency has not dressed its decision
with the conventional procedural accoutrements of finality,
its own behavior thus belies the claim that its
interpretation is not final.”). Again, “[t]he
core question is whether the agency has completed its
decisionmaking process, and whether the result of that
process is one that will directly affect the parties.”
Franklin, 505 U.S. at 797; see also California ex rel.
Harris v. Fed. Hous. Fin. Agency, No. C 10-03084 CW,
2011 WL 3794942, at *10 (N.D. Cal. Aug. 26, 2011) (finding
first prong of Bennett test had been satisfied on motion to
dismiss where agency presented statement at issue as
“the consummation of a decision-making process that
involved careful review and over a year of working with
federal and state government agencies”) (internal
quotation marks omitted).
second prong of the Bennett test is easily satisfied. Legal
consequences flow from HHS's decision to deny federal
funding to applicants who do not identify “one of the
two eligible programs.” See Arizona State Bd., 391
F.Supp.2d at 802 (legal consequences flow from an
agency's decision that prohibits future federal funding);
XP Vehicles, Inc. v. Dep't of Energy, 118
F.Supp.3d 38, 60 (D.D.C. 2015) (“it is clear beyond
cavil that the rejection of a request for a government
benefit . . . ‘fixes some legal relationship'
between a private party and the
defendants contend that “[e]ligibility is not
contingent on compliance with th[e] requirement” that
an application identifies “one of the two eligible
programs” in the 2018 Tier 1 FOA. ECF #73, at 5
(emphasis in original). This ignores repeated statements in
the 2018 Tier 1 FOA to the contrary, specifically that
“OAH will fund projects that will replicate one of the
two effective programs described in the summary, ”
“[p]rojects are required to replicate a risk avoidance
model or a risk reduction model that incorporates the common
characteristics outlined in one of the two programs, ”
and “[o]ne of the two eligible programs” must be
“clearly identified” or OAH “will eliminate
it from the competition and it will not be reviewed.”
AR000035, 43-60. Defendants also contend that “[t]he
identification requirement determines only whether the
application is reviewed as an SRA [(sexual risk avoidance)]
or an SSR [(sexual risk reduction)] project.” ECF #73,
at 5. However, sexual risk avoidance and sexual risk
reduction are at the ...