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In case number 18-5218NL, Planned Parenthood of Wisconsin and L.F.

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Collins v. Alex Michael Czar II, and he has a specific capacity as the United States Health and Human Services Secretary and L. Mr. Wolfson from the Appellates, Ms.

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Willie from the Appellees.

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Good morning, Your Honor.

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May it please the Court, Paul Wolfson for the plaintiffs.

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I'd like to reserve three minutes for a little time.

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This case is not about a challenge to any particular grant awards under Title X. This case is about the agency's effort to change the criteria by which it decides which applicants will be awarded funding without going through notice and commentable making.

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Now, it is true that the agency has awarded funds for fiscal year 2018, but what the plaintiffs are concerned about is now, is retaining the ability to challenge the agency's evasion of notice and comment rulemaking in the future.

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And as we see by fiscal year 2019, the agency continues to use funding opportunity announcements to make substantive decisions affecting the grant making decisions beyond the system.

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Excuse me, Your Honor.

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Right this minute or not, you might ought to address mootments and say, what do we got jurisdiction?

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Absolutely, Your Honor, and I will do that right now.

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So there clearly is a question of the court's jurisdiction and turning to that first.

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As I said, it's true that the funds have been disbursed and we're not asking the court to recall the funds.

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It's also true the agency has issued an FOA for 2019.

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And should the court believe that this case is moot,

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then it should vacate the decision of the district court and remand with instruction to dismiss the case.

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But we do have a significant concern that the agency is attempting to evade review through, in effect, voluntary cessation by what it's done in 2019.

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You said they're following the same methodology on the grant that they have all the time.

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It doesn't look like they're doing something deliberately to evade review when they do what your own race describes as them having done for years.

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Hadn't this procedure been followed for years?

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So, Your Honor, I think actually what they've done in 2019 is similar to what they did in 2018, but different from what they did ever before.

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So just to kind of go back.

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Procedurally, they are issuing a funding opportunity announcement, which they have done, you know, no question.

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That doesn't sound like they're deliberately trying to evade anything, but when they're doing the same procedure they've done all the time.

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So our concern about, I think there are two concerns we have about evasion.

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And again, I do want to emphasize that if the court thinks that the case is moot, then the proper remedy is to vacate.

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But let me address what our concerns are here.

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So when you look at the 2019 FOA, there's no question that what the agency has done here is more moderate on the specific issues that we're concerned about about them than it was in 2018.

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But what we are concerned about here is that the agency has essentially drawn in, has trimmed its sales while this case is on appellate review, and then once this case was disposed of,

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in 2020, it could go back to what it did in 2018.

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So that raises, I think, at a minimum, a voluntary cessation issue, which presents a concern.

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The second thing... Just one more moment.

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I'm not trying to dominate, because I'm the most junior person here.

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No, Your Honor, we recognize that this is a significant jurisdictional concern.

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I'm trying to explain

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why we are concerned about the problem of evading review.

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So if the court does think it's moot, then we want to be able to take the, we want to be able to challenge the... We'll go into that point.

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Whether we agree, even if we don't agree that there's a danger of evading review, the remedy is going to still be the same as far as you're concerned at this point.

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That is that we vacate and remand for dismissal.

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Well... Once we find mootness,

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whether we find the evade and review problem or not, it's still going to be wiped out, Judge McBorrell, right?

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Well, if the court thought it was just moot, it would be wiped out.

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If the court thought that there was an exception to mootness, such as evading review or voluntary cessation, then the court would proceed to address at least some of the questions on the merits, the principal one here being today, I think, notice and comment rulemaking, which is our

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you know, kind of the focus of our concern.

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The issue about, there is, I also think, a kind of evading review problem here, which is that time period for challenging these decisions is so short.

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It's really just a couple of months.

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And it's impossible to get sort of full-scale judicial review during that period.

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So can I just ask the nuts and bolts of how you might get review in this context?

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So one issue you have,

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is a finality problem because you are not challenging the award of the grant.

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Right, and I'd like to address that because I think, sorry.

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Yeah, so I'm just, is there some reason why you couldn't have done that?

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If people all the time seek money from the government and if they're denied the grant or they think the grant wasn't enough,

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They can challenge that.

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And the district court certainly thought, well, you should challenge the actual grant decision.

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As a practical matter, Your Honor, in our view, that's impossible.

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And I think the court has always said finality has a practical dimension.

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I'll explain why.

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Right.

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But I know you have arguments about finality.

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But just in terms of how this might work,

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So here's how it works.

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The grants are awarded, or there is an announcement that goes out to the community.

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The announcement was August 2nd.

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And the obligation was September 1st?

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Well, typically the awards go out within two to three weeks after the announcement is made.

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In our view, it is, as a practical matter, impossible

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to challenge the grant awards during that time period.

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Well, but if you go to our decision in the Houston case where we talk about mootness problems that arise in the context of challenging grants, we seem to assume that you can challenge a final decision awarding or not awarding a grant

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And when you do that you have two problems of looming mootness.

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One is that the appropriation might expire and the other is that the funds might be obligated to someone else and we say you can solve both those problems by seeking preliminary relief.

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So why couldn't you have done that here?

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Well in the Houston case of course there was no

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It didn't have the feature that this case had, which is that the agency has sort of announced its criteria in advance of

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you know, if the agency announced how it would communicate.

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All I'm probing is whether there's some reason why you couldn't have challenged the final grant decision.

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So I think as a practical matter it would have been impossible.

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First of all, there's the very short time period.

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I mean, the money is out the door in two weeks.

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Secondly, the remedy... From announcement to obligation.

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To obligation.

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Secondly, two, three weeks.

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Secondly, the remedy in such a situation would be, certainly the immediate remedy would be stopping the funding from being obligated to other people.

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I mean, a remedy would be like basically bringing a halt to the program by stopping the agency from issuing funding.

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That's not a remedy anybody wants.

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I mean, nobody wants, we certainly don't want

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you know, the funds not to go out to people.

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We want the funds to go out in the right way.

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So nobody wants a remedy in which we would have to go to the district court and say, you know, please issue a TRO against the agency funding, you know, funding anybody or funding, you know, a large number of people who might be affected.

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There's also the problem that, you know, when you are denied your grant, you don't know, you know, you don't see any other applications and so it's sort of difficult to know

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you know, what your challenge might be.

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It seems to me as a practical matter... I get those points.

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That makes some sense, but what would you do in just a perfectly normal case where you get the grant award and you're not happy with it and you want to challenge it?

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Well, the agency has taken the position, excuse me, throughout this litigation, that there's nothing we can do.

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Because the agency has taken the position, certainly they emphasize it in the district court, they found it,

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They found it convenient not to repeat that here, but they've taken the position that the actual challenges to grant decisions are within the agency's discretion as a matter of law and not even subject to judicial review.

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So certainly, we run that risk if we're going into court later.

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So as a practical matter, Your Honor, when the agency announces these are the legal criteria we will apply to a grant application,

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It seems to me the only possible time you can challenge that is when the grant application issues.

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And that's our fundamental disagreement with the district court's finality ruling.

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That being the case, you know, I just want to touch briefly, you know, on notice and comment too, because I think that is here, you know, our fundamental concern going forward, which is the agency.

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It seems... It sounds like an admission that it would be possible to go for a preliminary release in a district court.

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Now, the fact that if you don't want to,

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would not seem to me to bring it under the aegis of evading review.

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You can get review in a district court.

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The fact that you don't want that kind of review doesn't mean you don't get review.

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I think the evading review looks to sort of the whole time period that we have.

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And I think that if we... Yes, and the review would be the same as it would be if you had a year.

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You still could go in for a preliminary injunction, or a PRO, preliminary injunction.

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But if we lost, Your Honor, there'd be no way of our being able to take an appeal because the money would be out the door.

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I mean, indeed, there'd be no way of even... You don't think you could apply for a stay?

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I mean, there'd be even no way of moving for summary judgment.

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I think we could, you know, perhaps we could apply for a stay, but I think, you know, given the way... I mean, even in this case, we asked for a preliminary injunction.

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We and the government agreed to expedite the case.

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It still took a month and some for the district court to decide the case.

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We appealed one day after the district court's judgment was issued, and then we applied for the stay to this court, and it was denied.

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The court has always said finality is a practical concern.

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There is a strong practical element to that.

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I see my time is winding down.

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I just do want to touch on

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notice and comment briefly.

[00:12:31] Speaker 03:
Just on finality before you move on to tie down the same kind of point in the context of finality, I mean our most recent decision in this area is sound board and the idea that finality turns on practical pressures as opposed to just the formal structure of the agency decision making

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was the view of the dissent, not the majority.

[00:13:01] Speaker 02:
Well, I mean, I go back to Abbott Labs, where the Supreme Court certainly looked at crackadality.

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I also look at longstanding cases at this court, like Batterton versus Marshall, which is cited in the briefs, and other similar cases where the court has said, you have to look at, it's not just a question of legally binding.

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It's a question of what the consequences will flow.

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And here, I think the consequences are

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Well, first of all, the agency itself, you know, is obligated to consider these applications in a certain way.

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I mean, that's, I think, the whole point of the FOA, that the agency is committing itself to consider this eighth criteria.

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But the final decision-maker is expressly

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permitted, required, whatever, to consider a lot of other additional circumstances.

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So I don't think that's right, Your Honor, and I also don't think it matters.

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And the reason why I don't think it matters is if you inject any illegal criterion into the

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into the consideration, it seems to me there has to be a way of getting a judicial review of that.

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And it has to be the case.

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I mean, this is the agency's decision to decide who's getting the grant.

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Now, the agency and the FOA has said, we want to consider what I'll call the eighth criterion for shorthand.

[00:14:27] Speaker 03:
I'm sorry, the eighth.

[00:14:28] Speaker 03:
The eighth criterion.

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The deputy assistant.

[00:14:31] Speaker 02:
Well, yes.

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I mean, the eighth is certainly being scored.

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My understanding is that there are four in the statute.

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Right.

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And then three more in the regs.

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And then four more that the deputy assistant can look at as the final decision maker.

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So that's not exactly right.

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I mean, there's eight.

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So for years, the scoring panel, first of all, the regulation itself says, and I think you have to go back to what the regulation itself says, the regulation itself says the agency will consider these seven criteria.

[00:15:07] Speaker 02:
The agency here is added an eighth.

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Now, what is the deputy assistant secretary doing?

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The deputy assistant secretary apparently is considering four.

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We view those four as sort of not different from the seven.

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You know, they may be sort of weighed in a different way.

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But this, I think, is a crucial point.

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However it is considered, whether it's being considered by the review panel or by the deputy, somebody at the agency

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is considering this eighth criteria in a meaningful and substantive way.

[00:15:39] Speaker 02:
It has to be because the agency has told us in the FOA it wants this eighth criteria to affect who is going to get grants.

[00:15:47] Speaker 05:
Well, you assume it would have some effect because otherwise why add it?

[00:15:50] Speaker 02:
Well, that's exactly right.

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Now, the government seems to be taking the position that, well, the merits panel reviews the eight.

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You know, the deputy, you know, I mean, who knows what the deputy does?

[00:16:00] Speaker 02:
The deputy considers the four, but they, you know, there's no indication what the deputy is considering the seven or the eight.

[00:16:06] Speaker 02:
I just don't see how that can be the case, Your Honor.

[00:16:09] Speaker 02:
I don't see how you can square that with the regulations.

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The deputy assistant secretary is part of the agency.

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She has to consider what the regulation health says the agency will consider.

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And I just don't see how the, I mean, the agency seems to be saying, you know,

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It's interesting that the review panel considers the eighth.

[00:16:28] Speaker 03:
I'm sorry, what you're calling the eighth are the program priorities and key issues in the funding announcement?

[00:16:37] Speaker 03:
Yes, so the agency has... So if you're saying the deputy assistant is obviously going to consider those, I'm with you, I get that.

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Right.

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But I was talking about the deputy assistant

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has other criteria besides the statutory and regulatory criteria.

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And the fact that the deputies review to that extent is broader than the review of the panels at least suggests that the panel recommendations

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are just that, they're interlocutory.

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So we've not challenged the four criteria that the Deputy Assistant Secretary is considering.

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We view those four as sort of fitting comfortably within, they're sort of a different way of looking at the seven.

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And they sort of trace back to

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A lot of them have to do with geographic distribution of the services, and they trace back to a time when the agency centralized its review of the seven criteria in the Deputy Secretary previously that it had done at the regional level.

[00:17:48] Speaker 05:
Can I ask a question?

[00:17:50] Speaker 05:
I think I'm missing one thing, which is that, let's just assume that there is a reservoir of discretion left in the Deputy Secretary.

[00:18:00] Speaker 05:
that it's also the case that the Deputy Secretary takes into account what the panel did.

[00:18:08] Speaker 05:
That could very well be the case, Your Honor.

[00:18:11] Speaker 05:
But does that mean that there's no finality in the change to what the panel does?

[00:18:15] Speaker 02:
I don't think so.

[00:18:16] Speaker 02:
I mean, our challenge is not to the idea that the Deputy Assistant Secretary might have some discretion.

[00:18:23] Speaker 02:
Our challenge is to the fact that an eighth unlawful factor has been injected into the system.

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And that factor has to be being considered by the agency somewhere.

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It's either being considered by the

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It seems to me one of two things is happening.

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One is what we think is the case, which is the panel is considering the eight factor, and the deputy assistant secretary is basically deferring to those decisions.

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The second, it seems to me, is what the government is suggesting, which is the deputy assistant secretary is considering all the factors.

[00:19:00] Speaker 02:
Because the panel's decision is fundamentally

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advisory, and that somebody at the agency, I mean, the regulation says the agency is going to consider these factors.

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So the decision-maker at the agency has to be considering the factors.

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It may be the deputies and secretary, but if an eighth illegal factor is injected into that system, then what the agency is doing is unlawful.

[00:19:25] Speaker 02:
And the only way we can get judicial review of that is now.

[00:19:30] Speaker 05:
Can I ask a question about the notice and comment piece of it, which is that as I understand the history of this, the addition of the point system, not the criteria themselves, so the criteria spelled out, the seven criteria spelled out in the regulation, and then the way the scoring works with the application is that there's points assigned.

[00:19:48] Speaker 05:
Correct.

[00:19:49] Speaker 05:
The introduction of the point system itself wasn't done through notice and comment.

[00:19:55] Speaker 02:
That's correct, and we don't, you know,

[00:19:58] Speaker 02:
I think that could be viewed as a procedural rule.

[00:20:01] Speaker 02:
I mean, the regulation says, you know, the agency shall take into account these seven factors.

[00:20:07] Speaker 02:
It doesn't say specifically how the agency shall take into account.

[00:20:11] Speaker 02:
You know, the agency can certainly weigh those in a particular way, I think, up to a point.

[00:20:17] Speaker 02:
We don't have a problem with

[00:20:18] Speaker 05:
you know, a point system that actually helps advise the community about... So you wouldn't think it would require notice and comment, for example, if initially the regulation comes out and says, here's the seven criteria, then by something short of a regulation, there's an announcement made as to the point values assigned.

[00:20:36] Speaker 05:
And let's just say they went 90, you know, one, one, one, one, one.

[00:20:41] Speaker 05:
I'm not going to do the math wrong.

[00:20:42] Speaker 02:
Right.

[00:20:42] Speaker 02:
No, no, no.

[00:20:44] Speaker 02:
So I do... And then someone switches the 90 to four.

[00:20:46] Speaker 02:
I understand.

[00:20:47] Speaker 02:
I do think there may be limits to the agency's discretion.

[00:20:50] Speaker 02:
First of all, that could be arbitrary and capricious.

[00:20:53] Speaker 02:
You know, if the agency essentially, if there are seven factors, and what the agency essentially is saying is we're really only considering one, you know, if I didn't... No, but let's suppose they explain it.

[00:21:01] Speaker 02:
They just don't do it through notice and comment.

[00:21:02] Speaker 02:
I think there is a limit to their ability to do this without notice and comment.

[00:21:07] Speaker 02:
You know, one could argue, I would think, that that would so fundamentally change the nature of the program that it would require notice and comment.

[00:21:14] Speaker 02:
But what the agency has done here, you know, up till now, which is a sign, a point system, the points, you know, they go up and down from year to year, but not, you know, until this year, not kind of wildly so.

[00:21:26] Speaker 02:
That practice we do not argue requires notice and comment.

[00:21:30] Speaker 03:
So your challenge on the merits is not incorporation of the factors into the scoring system.

[00:21:40] Speaker 03:
It's just fundamentally that these factors

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these factors in the funding announcement are substantively wrong.

[00:21:50] Speaker 03:
They go beyond the seven enumerated ones and they're arbitrary.

[00:21:53] Speaker 03:
And that would be true regardless of how they're scored.

[00:21:57] Speaker 02:
I think that would be true regardless of who is the decision maker.

[00:22:02] Speaker 02:
Thank you.

[00:22:15] Speaker 01:
Morning, Your Honor.

[00:22:16] Speaker 01:
Janie Lilly for the government.

[00:22:18] Speaker 01:
I'd like to start with the, to answer some of your questions about what exactly the factors are that plaintiffs have challenged.

[00:22:25] Speaker 01:
These are a method by which the agency collects information from grant applicants, processes the applications, and an independent advisory committee outside of the agency, composed of experts outside of the agency's scores

[00:22:42] Speaker 01:
those applications to provide further information to the final agency decision maker.

[00:22:47] Speaker 05:
Can I ask you a question just to start off on mootness?

[00:22:49] Speaker 01:
Yes.

[00:22:49] Speaker 05:
I'm following the government's position on this.

[00:22:51] Speaker 05:
I mean, we obviously have an obligation to understand mootness on our own, but from your perspective, does the government think that the right way to proceed here is to challenge the grant and then seek some sort of emergency relief that would have the effect of stopping funding?

[00:23:09] Speaker 01:
Your Honor, the final agency action that is appropriate for challenge here would be the agency's final award decisions.

[00:23:17] Speaker 01:
And plaintiffs have disclaimed any challenge to those awards.

[00:23:22] Speaker 01:
And that makes sense, Your Honor, because the conclusion or the consummation of the agency's decision-making process is in the decision whether to grant an award and then how much.

[00:23:30] Speaker 03:
How would they do that?

[00:23:31] Speaker 03:
Is that judicially reviewable?

[00:23:33] Speaker 03:
Yes, Your Honor, that when a decision is made, the plaintiffs could, as you described in the City of Houston case, and as Your Honor summarized, could come and... City of Houston is the conceptual point, mootness points that arise, that can arise when a party, the agreed party is seeking funding, but what's the judicial review mechanism here, because your colleagues have made some

[00:24:03] Speaker 03:
Pretty good practical arguments that there's just no better way to do it.

[00:24:07] Speaker 01:
But certainly the practicalities are that there may be a small window in any particular case in which the grantee who's dissatisfied can come into court.

[00:24:16] Speaker 01:
But that doesn't alter the APA's requirement that the plaintiff must challenge a final agency action.

[00:24:21] Speaker 01:
And the agency has not concluded its decision-making process, certainly not at the point where it's issued out

[00:24:27] Speaker 01:
a funding opportunity announcement saying this is how we're going to gather and analyze.

[00:24:31] Speaker 03:
Is there always a gap between the time when the grant decisions are announced, which on your theory is the final agency action,

[00:24:44] Speaker 03:
And the time when the funds are obligated, which under Houston would be the mooting event.

[00:24:52] Speaker 01:
Your Honor, I can't speak to all of the grants programs throughout the entire executive branch.

[00:24:56] Speaker 01:
No, but this one.

[00:24:56] Speaker 01:
But in the main, in Title X,

[00:24:59] Speaker 01:
In Title X grants world, there is typically a period of time at which the grant award has been finalized and the funds can be drawn down and are disbursed.

[00:25:12] Speaker 03:
And the review is through the APA, just the default review provisions for challenging final agency action or just go to the claims court because you're seeking money from the government?

[00:25:26] Speaker 01:
How does it work?

[00:25:29] Speaker 01:
In this case, we believe that the plaintiffs challenged through the APA the decision whether to grant or deny, to make a grant award through the APA and that they could do that once the agency has concluded its decision making process.

[00:25:46] Speaker 05:
So for purpose, then we have to deal with abating review on the mootness issue.

[00:25:52] Speaker 05:
Yes, Your Honor.

[00:25:52] Speaker 05:
So your idea is that

[00:25:55] Speaker 05:
There's no evasion of review because there's some period of time between the time that the funding decision is made and the time that the money is actually made.

[00:26:02] Speaker 01:
Yes, Your Honor, but plaintiffs also must show that their claims are capable of repetition.

[00:26:08] Speaker 01:
Right, but I'm just focusing on evading review right now.

[00:26:10] Speaker 05:
Yes, Your Honor.

[00:26:11] Speaker 05:
And we can deal with capable repetition, but on evading review, is the government's perspective that, do you disagree with the representation that the time frame is roughly two to three weeks?

[00:26:21] Speaker 01:
I think that in any particular case it may differ, but that sounds about right.

[00:26:25] Speaker 05:
Okay, so let's assume that that's roughly right.

[00:26:27] Speaker 05:
Then the government's view is that two to three weeks

[00:26:31] Speaker 05:
is enough to overcome a evading review point?

[00:26:36] Speaker 05:
Because I thought our decisions indicated that time period that's that short is a time period that would indicate that there's a danger of evading review.

[00:26:45] Speaker 01:
Well, Your Honor, there may be a danger that review can't be completed.

[00:26:51] Speaker 01:
But if, as Ed Katz has pointed out, the plaintiffs had come into district court and sought a preliminary injunction, then the case

[00:26:59] Speaker 01:
and the dispersal of grants or any particular grant decision were enjoined, then this court review could be completed.

[00:27:08] Speaker 05:
Isn't that, that just seems like a, that seems like a pretty profound proposition because there's always the possibility of seeking a preliminary injunction in any kind of case.

[00:27:19] Speaker 01:
That's right, Your Honor.

[00:27:20] Speaker 05:
And if, then it could, if there was in, you know, four days

[00:27:24] Speaker 05:
You could always go in and try to seek a TRO and then a PI.

[00:27:27] Speaker 05:
And I guess it wasn't apparent to me that that means that there's no problem with evasion of review just because the prospect of a PI or a TRO is always out there.

[00:27:37] Speaker 01:
Well, Your Honor, I mean, that's certainly what this Court suggests in the City of Houston case.

[00:27:40] Speaker 01:
In the Converse, that the plaintiff

[00:27:44] Speaker 01:
at any point in the grants-making process, as soon as it gets a whiff of something that it may or may not disagree with, regardless of how the agency, the consummation of the agency's decision-making process concludes, could come into court at any time, also makes no sense.

[00:28:00] Speaker 05:
But that's not an evasion of review issue.

[00:28:03] Speaker 05:
That may be, I understand your point, but I don't understand why that's an evasion of review point.

[00:28:11] Speaker 01:
It may not be, but Your Honor, the plaintiff's point is that they should be able to challenge the funding opportunity announcement and not even bother to challenge the grant award.

[00:28:24] Speaker 05:
No, I assume what they would say is not that they should be able to do that regardless.

[00:28:28] Speaker 05:
I think what they would say is they should be able to do that as long as the challenge to the grant would evade review.

[00:28:36] Speaker 05:
Right, that's the question, is whether another vehicle would evade review.

[00:28:40] Speaker 05:
And if that evades review, then it seems like there's not a mootness problem.

[00:28:44] Speaker 01:
That may be, Your Honor.

[00:28:46] Speaker 01:
But the plaintiff's claims here are certainly not capable of repetition, as we pointed out.

[00:28:52] Speaker 01:
The claims are specific to the substantive criteria in the previous funding opportunity announcement.

[00:28:58] Speaker 01:
Those have all materially changed.

[00:29:00] Speaker 03:
So on that point,

[00:29:05] Speaker 03:
Should we distinguish between some of the more granular arbitrary and capricious challenges, as to which I take your point.

[00:29:18] Speaker 03:
Every year is different and 2019 looks materially different from 2018.

[00:29:24] Speaker 03:
But should we distinguish those kinds of claims from their

[00:29:29] Speaker 03:
threshold legal claim, which is that the seven regulatory factors are exclusive, and that question might be more likely to repeat.

[00:29:42] Speaker 01:
I take your point that the agency's assertion of legal authority to exercise its discretion in this way

[00:29:49] Speaker 01:
might be the same from here to here, but it's precisely that.

[00:29:52] Speaker 01:
It's an assertion of legal authority.

[00:29:55] Speaker 01:
It's not challenged conduct, that is, or a policy that is affecting plaintiffs in a way that would permit this court to determine that an exception to mootness applied.

[00:30:06] Speaker 03:
I mean, I guess another way of asking the question is don't we assess jurisdiction in this context, the repetition issue, claim by claim?

[00:30:18] Speaker 03:
And if the broad legal challenge that the seven factors are exclusive, that might be likely to repeat and the other ones might not.

[00:30:27] Speaker 03:
Why don't we at least review the claim that's likely to repeat?

[00:30:31] Speaker 01:
I think you're right that the court would assess jurisdiction in that way, but here the court's inquiry about whether there's an underlying policy or if the challenged conduct or legal harms might have suffered

[00:30:45] Speaker 01:
satisfy an exception to bootness, really turns on whether there is a policy determination or... No, those are different.

[00:30:54] Speaker 03:
One theory is they're challenging a policy, a different theory is that there are various discreet controversies that will repeat.

[00:31:02] Speaker 01:
Whether there are legal harms that will repeat under the

[00:31:07] Speaker 01:
capable of repetition.

[00:31:09] Speaker 01:
The two inquiries are somewhat similar, Your Honor, in here.

[00:31:13] Speaker 01:
The way in which there's more matters.

[00:31:15] Speaker 01:
Because what plaintiffs are challenging is the agency's assertion of discretion that will manifest itself in different ways as the differences between fiscal year 2018 and fiscal year 2019 show.

[00:31:27] Speaker 01:
And the commonality is simply the agency's assertion of discretion, not conduct or policies that

[00:31:37] Speaker 01:
that harm plaintiffs in their theory.

[00:31:41] Speaker 05:
How about the notice and comment piece of it?

[00:31:43] Speaker 05:
Because in terms of capable of repetition, is it not capable of repetition that adjustments to the seven will be made without notice and comment?

[00:31:53] Speaker 01:
Again, Your Honor, it

[00:31:56] Speaker 01:
It may be, but I think that what matters for the purposes of the capable of repetition is what the agency is actually doing, not its assertion that it has discretion to change the way it gathers information.

[00:32:10] Speaker 01:
I mean, a challenge at that level of generality simply just

[00:32:13] Speaker 01:
isn't live in the court in that jurisdiction to... It would be an advisory opinion.

[00:32:18] Speaker 01:
It would be an advisory opinion, Your Honor, to adjudicate at that level of abstraction sort of the agency's assertion that it can make changes in the future.

[00:32:28] Speaker 05:
But it's done it.

[00:32:29] Speaker 05:
It did it in 2018 and in 2019.

[00:32:30] Speaker 05:
It did.

[00:32:32] Speaker 05:
Without notice and comment.

[00:32:33] Speaker 01:
It did, Your Honor.

[00:32:34] Speaker 05:
But again, those are... Why doesn't that seem like capable of repetition if it in fact was repeated?

[00:32:39] Speaker 01:
Again, the agency has made changes and will make changes to the way it processes, it sensibly will, to the way it processes and consumes applications, but that doesn't mean that its assertion of authority to do that is somehow concrete enough for this court to adjudicate at this stage.

[00:33:00] Speaker 03:
The question whether notice and comment is required would turn in part on the particulars

[00:33:09] Speaker 03:
the yearly announcement, right, the extent to which it looks legislative rather than procedural.

[00:33:14] Speaker 01:
Exactly, Your Honor.

[00:33:18] Speaker 01:
If I may, this dovetails with why the plaintiffs have not satisfied the final agency action

[00:33:27] Speaker 01:
requirement of review here, and their claims are unreviewable, because what they've challenged not only is the announcement of the agency's decision-making process, but merely an interim stage, as we clarified earlier, that these are scoring criteria.

[00:33:42] Speaker 01:
It's a method of collecting information, analyzing information, and ultimately informing the final agency's decision-makers' decisions.

[00:33:52] Speaker 01:
for similar reasons.

[00:33:54] Speaker 05:
So by that understanding then, there could be a new criterion added to the seven that are in the regulation, and it could be completely dispositive.

[00:34:08] Speaker 05:
I mean, the agency could switch things around so that it says, there's seven criterion, previously they've each gotten one seventh of the total, but now they're gonna each get one 25th, and this new criterion is gonna be basically the deciding criterion.

[00:34:19] Speaker 05:
And that would still not be final agency action that's reviewable.

[00:34:22] Speaker 01:
Well, Your Honor, I would dispute the proposition that would be dispositive because, of course, these are merely scoring criteria that an independent review panel used to review a numerical score.

[00:34:31] Speaker 05:
They would be dispositive for purposes of the score that the independent review panel gives.

[00:34:34] Speaker 01:
Exactly.

[00:34:35] Speaker 01:
But not dispositive for the agency's decision.

[00:34:37] Speaker 01:
And that, of course, is what it is.

[00:34:38] Speaker 01:
Sure.

[00:34:38] Speaker 05:
So then, if that's true, then the agency could construct a regime under which

[00:34:42] Speaker 05:
It gives a scoring criteria, and it could be true as a matter of fact that every single time the final decision maker actually ratifies the decision that's made on the scoring criteria, but all the agency would have done is to reserve discretion as a matter of theory in the final decision maker.

[00:35:00] Speaker 05:
And then the government's argument would be, well, no final agency action.

[00:35:05] Speaker 01:
Yes, I mean, and if that were true, then the plaintiffs might have a claim that the agency didn't follow the statutory and regulatory directives to take into account.

[00:35:15] Speaker 01:
I just don't know.

[00:35:16] Speaker 04:
It can still be reviewed at the final.

[00:35:18] Speaker 01:
Exactly, Your Honor.

[00:35:19] Speaker 01:
That the appropriate mechanism for review is once the agency is included.

[00:35:23] Speaker 04:
If there's a defect in getting there, that defect can be raised at the final review.

[00:35:27] Speaker 04:
And after your funds are obligated, it can't?

[00:35:30] Speaker 01:
Yes, Your Honor.

[00:35:31] Speaker 01:
That is correct for the reasons that we

[00:35:33] Speaker 01:
but at the conclusion of the agency's decision-making process.

[00:35:36] Speaker 01:
And this is just a feature of grants making and the types of agency decision-making that it's issued here.

[00:35:43] Speaker 01:
But that doesn't take it outside of the structures of the APA.

[00:35:46] Speaker 05:
Well, maybe that's why there's an exception in the APA for grants.

[00:35:50] Speaker 01:
To the notice and comment provision.

[00:35:52] Speaker 01:
Yes, Your Honor.

[00:35:53] Speaker 01:
But final agency action is certainly defined in terms of the decision to issue or deny a grant.

[00:36:02] Speaker 01:
that those requirements would apply here.

[00:36:04] Speaker 03:
On finality, Soundboard seems to me a pretty strong case for you in focusing the inquiry on just the formal structure of the agency decision-making process, but what about cases like Sackett and Hawks, which are cited but not really highlighted?

[00:36:28] Speaker 03:
I'm remembering those cases for

[00:36:31] Speaker 03:
proposition that the Supreme Court has recently told us to, to some extent, assess practicality in applying the finality doctrine?

[00:36:44] Speaker 01:
But the practicality consideration is about whether the agency's decision is practically final.

[00:36:52] Speaker 01:
And here, there's no sense in which the

[00:36:55] Speaker 01:
the scoring decisions or the announcement of scoring criteria are practically final.

[00:37:00] Speaker 03:
No, but if the practicality is that the window for review of the later action is two weeks and the only way to get it is to seek a massive TRO that would shut down the funding program wide,

[00:37:22] Speaker 03:
That doesn't seem terribly appealing.

[00:37:25] Speaker 03:
And my question is, do we just have to ignore that because the agency decision-making is structured the way it's structured?

[00:37:34] Speaker 01:
Your Honor, yes.

[00:37:34] Speaker 01:
I think that there are final agency decisions that, because of the nature of the funding cycle or the governmental process at issue, may provide for a fairly narrow window of review after the consummation of the agency's decision-making process.

[00:37:49] Speaker 01:
that feature of a particular agency's decision doesn't take it outside of the APA's requirement of final agency action.

[00:38:00] Speaker 01:
The court has no further questions.

[00:38:02] Speaker 05:
Thank you.

[00:38:02] Speaker 05:
Thank you, counsel.

[00:38:05] Speaker 05:
We'll give you your three minutes.

[00:38:07] Speaker 02:
Oh, all right.

[00:38:09] Speaker 02:
Thank you very much, Your Honor.

[00:38:10] Speaker 02:
One point I should have made when I was up here before is that some of the plaintiffs here actually changed their decisions about what services they would offer in order to meet

[00:38:23] Speaker 02:
the agency's new grant criteria.

[00:38:26] Speaker 02:
And some of them received grants.

[00:38:28] Speaker 02:
They would have preferred to do something else.

[00:38:31] Speaker 02:
I mean, they think what the agency did here is not lawful.

[00:38:33] Speaker 02:
They would have preferred to do something else.

[00:38:35] Speaker 02:
I don't see, I mean, assuming that that applicant got the grant, I'm not sure how that person could ever challenge the unlawful criteria post-grant.

[00:38:46] Speaker 02:
I don't see how they could challenge an award that they got.

[00:38:51] Speaker 02:
which is some of our plaintiffs.

[00:38:54] Speaker 02:
So this, I think, puts another spotlight on the problem with the agency's decision.

[00:39:00] Speaker 02:
This case is not about particular grant decisions.

[00:39:03] Speaker 02:
This case is about a change to the system.

[00:39:06] Speaker 02:
And as a practical matter, it's just not possible to challenge that.

[00:39:10] Speaker 02:
Indeed, I'm very surprised to hear my colleague say here that there is judicial review of the final grant decisions, because the Department of Justice consistently argues

[00:39:21] Speaker 02:
that final grant decisions are not subject to judicial review by law at all, and the agency argued that below.

[00:39:28] Speaker 02:
And so I think when you put together what the agency is arguing here and what the district court concluded, which is you can't review the announcement of the grant criteria first, and then when you put together that, essentially the agency is saying there is no judicial review of what we're doing.

[00:39:47] Speaker 02:
Let me suggest sort of a slightly different way of looking at it.

[00:39:50] Speaker 02:
Suppose that the agency had actually revised its regulation and had, through notice and comment, added an eighth criterion.

[00:40:01] Speaker 02:
So no notice and comment argument, but we had the view that that was substantively illegal and arbitrary capricious, no support in the administrative record.

[00:40:12] Speaker 02:
It's very hard for me to believe that an actual legislative regulation issued by the agency, and everybody agrees here that 59.7 is a legislative rule, it's very hard for me to believe that an actual legislative regulation could not be final agency action and not challenged.

[00:40:33] Speaker 02:
And yet, that's basically, in our view, that's basically what the agency is doing here.

[00:40:39] Speaker 05:
Even though, even in that situation, you could hypothesize a chain of events under which the eighth criterion is added substantively to the regulation.

[00:40:50] Speaker 05:
Then a grant, somebody applies for the grant, but wants to make a challenge to the addition of the eighth criterion.

[00:40:59] Speaker 05:
applies for the grant based on the seven criteria knowing that they're not going to get it.

[00:41:04] Speaker 02:
Some could apply for it knowing that they're not going to get it.

[00:41:07] Speaker 05:
And then challenge the final decision not to get the grant.

[00:41:10] Speaker 02:
I don't see it.

[00:41:10] Speaker 02:
But some might actually change their tune and say, I'm willing.

[00:41:15] Speaker 02:
I'm not willing to risk it.

[00:41:16] Speaker 02:
And I don't see how that person could ever challenge that after the grant award.

[00:41:21] Speaker 02:
And I'm sure the Department of Justice would argue that they couldn't.

[00:41:24] Speaker 02:
Putting all of that together, this has to be the only time.

[00:41:27] Speaker 02:
This has to be the time when this kind of challenge can be made.

[00:41:32] Speaker 05:
Thank you very much.

[00:41:33] Speaker 05:
Thank you, counsel.

[00:41:33] Speaker 05:
Thank you, counsel.

[00:41:34] Speaker 05:
The case is submitted.

[00:41:37] Speaker 00:
Stand please.