On January 21, 2020, the U.S. District Court for the Northern District of Georgia granted in part and denied in part a motion challenging a new HHS policy for allocating livers to transplant patients in the United States. The ruling comes just days after the court lifted an injunction that allows the new policy to go into effect.

The new policy, which was adopted in May 2019, gives priority to patients with the most urgent medical need living within a 500-mile radius of the donor hospital. In contrast, under the old rule, patients with the greatest need and closer to donors in a geographic region received greater priority.

The complaint, filed on April 22, 2019, by several transplant patients and transplant centers (Plaintiffs), alleged three counts against HHS and the United Network for Organ Sharing including failure to comply with the Administrative Procedures Act (APA), 5 U.S.C. §§ 706(1) and 706(2) (Counts I and II) and violation of Plaintiffs’ due process rights (Count III). In the ruling, the Court dismissed Count I by reference to the Eleventh Circuit’s reasoning in Callahan v. United States Dep’t of Health & Human Servs. through Alex Azar II, 939 F.3d 1251 (11th Cir. 2019), which is available here. There, the Circuit Court found that HHS had “broad discretion to determine how [the Organ Procurement and Transplantation Network] should be reviewed” and the APA did not require HHS to refer the new policy to the Advisory Committee on Organ Transplantation or post it in the Federal Register before adoption.

The Court denied the motion to dismiss Counts II and III finding that the complaint properly alleged the Secretary acted arbitrarily and capriciously by ordering a new liver allocation policy on a truncated timeline (Count II) and deprived those challenging it of due process during the new policy’s adoption (Count III).

The ruling on the Plaintiffs’ motion to dismiss comes on the heels of the court’s January 16, 2020 ruling lifting an injunction that had put the new policy on hold since May 2019. In that ruling on the motion for a preliminary injunction, the Court found Plaintiffs were not substantially likely to succeed on the merits of their case and therefore denied the Plaintiffs’ motion.

The case is Callahan v. U.S. Dep’t of Health & Human Servs., No. 19–cv–1783–AT (N.D. Ga.). The January 12, 2020 ruling on the motion to dismiss is available here, and the January 16, 2020 ruling on the injunction is available here.