NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 31 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PEDIATRIC AND FAMILY MEDICAL No. 20-55517 FOUNDATION, DBA Eisner Pediatric and Family Medical Center, D.C. No. 2:17-cv-00732-SJO-AS Plaintiff-Appellant,

v. MEMORANDUM*

XAVIER BECERRA, Secretary of the United States Department of Health and Human Services,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding

Argued and Submitted May 6, 2021 Pasadena, California

Before: WARDLAW and GOULD, Circuit Judges, and DONATO,** District Judge.

Eisner Pediatric and Family Medical Center (Eisner) appeals from the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James Donato, United States District Judge for the Northern District of California, sitting by designation. district court’s grant of summary judgment for defendant Secretary of the United

States Department of Health and Human Services (HHS). We have jurisdiction

pursuant to 28 U.S.C. § 1291. We previously referred the case to mediation and

administratively closed it, but the mediation was not successful. We now reopen

the case, and reverse in part and remand.

A district court’s summary judgment ruling is reviewed de novo. Baccei v.

United States, 632 F.3d 1140, 1144 (9th Cir. 2011) (citation omitted). Because the

parties are familiar with the facts, they will not be recounted here.

The district court properly concluded that Eisner lacked standing to

challenge HHS’s particularized determination process under 42 C.F.R. § 6.6.

Eisner never applied for a particularized determination, and it did not allege any

harm from that process.

With respect to HHS’s July 2015 letter removing California Hospital

Medical Center (CHMC) from the scope of Eisner’s grant under Section 330 of the

Public Health Service Act (PHSA), 42 U.S.C. § 254b, the district court correctly

concluded that the removal of the site was not barred by HHS’s deeming

determination for Eisner for the 2015 calendar year. HHS’s notice of deeming

action, which “deem[ed] Eisner Pediatric & Family Medical Center to be an

employee of the PHS [i.e., Public Health Service], for the purposes of section 224

[i.e., 42 U.S.C. § 233], effective 1/1/2015 through 12/31/2015,” expressly advised

2 Eisner that “[d]eemed health centers must continue to receive funding under

Section 330 of the PHS Act, 42 U.S.C. § 254b, in order to maintain coverage as a

deemed PHS employee. If the deemed entity loses its Section 330 funding, such

coverage will end immediately upon termination of the grant.” As this language

indicates, deeming Eisner to be an employee of the Public Health Service under the

Federally Supported Health Centers Assistance Act (FSHCAA), 42 U.S.C.

§ 233(g), through December 31, 2015, was not a guarantee that Eisner’s scope of

project for which it received funding under the PHSA would remain the same for

that time period.

However, the district court did not properly conclude that the July 2015

letter was sufficient under the Administrative Procedure Act (APA), 5 U.S.C.

§ 706(2)(A). The agency did not adequately explain why it was reversing its

position on the federal grant status of CHMC, eight years after having approved

CHMC as a health service site within the scope of Eisner’s PHSA grant.

The letter provided two ostensible reasons for the change of course, neither

of which was sufficient. First, the agency stated that Eisner’s 2007 change in

scope request, which had requested to add CHMC to Eisner’s scope of grant, “did

not fully address issues of control and oversight over the delivery of services under

the Coverage Agreement.” This statement does not shed any light on how the

2007 request fell short in these areas, and leaves us to “speculate on reasons that

3 might have supported [the] agency’s decision,” which we may not do. Encino

Motorcars, LLC v. Navarro, 136 S.Ct. 2117, 2127 (2016).

Although agencies are free to reverse course, they must “provide a reasoned

explanation for the change.” Id. at 2125 (citations omitted). HHS did not do that,

and when an agency has “failed to provide even [a] minimal level of analysis” such

that its “path may reasonably be discerned,” its “action is arbitrary and capricious

and so cannot carry the force of law.” Id. (quotations and citations omitted).

The second reason given by the agency was a non sequitur. It stated that

“EPFMC’s continuous staffing of California Hospital Medical Center’s OB/GYN

Department pursuant to a Coverage Agreement with the Hospital did not fit within

the FTCA coverage standards set forth in 42 C.F.R. § 6.6.” But FTCA coverage

under the Federally Supported Health Centers Assistance Act, and the scope of a

grant funded under the Public Health Service Act, are two separate issues. The

letter’s reference to the lack of FTCA coverage for the CHMC site consequently

did not explain why HHS was removing CHMC from the scope of Eisner’s PHSA

grant, especially when eight years had passed since HHS had approved the addition

of the CHMC site to Eisner’s scope of grant. The agency relied on an irrelevant

factor, which again rendered its decision to remove CHMC arbitrary and

capricious. See Yetiv v. U.S. Dep’t of Housing & Urb. Dev., 503 F.3d 1087, 1091

(9th Cir. 2007).

4 The district court’s grant of summary judgment for HHS on Eisner’s APA

claim is consequently reversed, and on remand, the district court is directed to

enter summary judgment for Eisner on that claim.

On the issue of standing, the parties agree that we can order the complaint

corrected to name the proper plaintiff entity that suffered injury: Pediatric and

Family Medical Center dba Eisner Pediatric and Family Medical Center. The

complaint is deemed so amended. See 28 U.S.C. § 1653; Oliver v. Ralphs Grocery

Co., 654 F.3d 903, 907-08 (9th Cir. 2011).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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