Clark Atlanta University, Ruling No. 2026-8 (2025)

REJECTION OF APPEAL

Clark Atlanta University (the University) seeks Departmental Appeals Board review of decisions by the National Institutes of Health (NIH) to terminate two research grants issued to the University.  In response to the Board’s request for an agency opinion on jurisdiction, NIH submitted a written opinion asserting that the Board lacks jurisdiction because the grant terminations, and subsequent reconsidered decisions, were based on “nonalignment with agency priorities” and do not fall within any of the categories of disputes reviewable by the Board under 45 C.F.R. Part 16, Appendix A or 42 C.F.R. Part 50, Subpart D.  NIH explained that the appealed decisions do not represent a disallowance, a termination for failure to comply with the terms of the award, a denial of a noncompeting continuation award for failure to comply with the terms of a previous award, or a voiding.  As discussed below, NIH’s jurisdictional opinion is not clearly erroneous and, therefore, this appeal must be rejected.

Legal Background

The Board’s jurisdiction to hear and decide appeals is limited.  Ca. Dep’t of Finance, DAB No. 1592, at 17 (1996) (“[T]here is no general right to review by the Board . . .”).  Board review is available only as provided by statute, regulation, or valid delegation of authority from the Department of Health and Human Services (HHS) Secretary or the head of an HHS operating component.  Experts Are Us, Inc., DAB No. 2342, at 5 (2010); 45 C.F.R. Part 16, App. A, ¶ A.

Before the Board will accept an appeal, the Board’s regulations at 45 C.F.R. Part 16 require that the following conditions be met:  (1) the appellant must have received a “final written decision” by an HHS component (45 C.F.R. § 16.3(b)); (2) the appellant must have appealed that decision within 30 days after receiving it (id.); (3) the appellant must have “exhausted any preliminary review process required by regulation” (id. § 16.3(c)); and (4) the disputed decision “must arise under a program which uses the Board for dispute resolution” and be the type of decision that the Board is authorized to review, as specified in Part 16, Appendix A (id. § 16.3(a); 45 C.F.R. Part 16, App. A, ¶¶ A-E).  The fourth requirement for Board jurisdiction is at issue here.

Page 2

Title 45 C.F.R. Part 16, Appendix A, identifies HHS programs that use the Board for dispute resolution and the types of “final written decisions” reviewable by the Board.  45 C.F.R. Part 16, App. A, ¶ A; see also 46 Fed. Reg. 1644, 1645 (Jan. 6, 1981) (noting that Appendix A is the Board’s “jurisdiction statement” reflecting “disputes which agencies have chosen to submit to the Board”).  The Board is authorized to review certain agency decisions involving grants.  See 45 C.F.R. Part 16, App. A, ¶¶ B, C.  A grant is a type of federal financial assistance that provides support or stimulation to carry out a public purpose as authorized by a law of the United States.  See 2 C.F.R. § 200.1 (defining “federal award,” “federal financial assistance,” and “grant agreement or grant”); 31 U.S.C. § 6304 (grant agreements).  Research grant awards made by NIH are subject to general terms and conditions depending on the type of grant, as well as any special terms and conditions in the notice of award.  See Targazyme, Inc., DAB No. 2939, at 1-2 (2019).  NIH issues a Grants Policy Statement (NIH GPS) to “make available to NIH recipients, in a single document, the policy requirements that serve as the terms and conditions of NIH grant awards.”  NIH GPS at ii.1 

As relevant here, Appendix A provides that the Board reviews “the following types of final written decisions in disputes arising in any HHS program authorizing the award of direct, discretionary project grants or cooperative agreements:” 

(1) A disallowance or other determination denying payment of an amount claimed under an award, or requiring return or set-off of funds already received.  . . .

(2) A termination for failure to comply with the terms of an award.

(3) A denial of a noncompeting continuation award under the project period system of funding where the denial is for failure to comply with the terms of a previous award.

(4) A voiding (a decision that an award is invalid because it was not authorized by statute or regulation or because it was fraudulently obtained).

45 C.F.R. Part 16, App. A, ¶ C(a)(1)-(4).2 

Page 3

When an HHS component, such as NIH, uses a preliminary appeal process, “the ‘final written decision’ for purposes of Board review is the decision issued as a result of that process.”  Id., App. A, ¶ C(b).  One such preliminary appeal process is found at 42 C.F.R. Part 50, Subpart D, which establishes a procedure for resolving certain “grant and cooperative agreement disputes” in programs administered by NIH.  42 C.F.R. §§ 50.401, 50.402.  The preliminary appeal process under Subpart D applies only to certain “adverse determinations under discretionary grants and cooperative agreements,” as specified in section 50.404(a).  Section 50.404(a) mirrors the list of reviewable final written decisions under Part 16, Appendix A, ¶ C(a).3   If a grantee contests an “adverse determination” to which the preliminary appeal process applies, the grantee must exhaust that process before the Board will accept the appeal under Part 16.  42 C.F.R. § 50.403.

The Board Chair determines whether the conditions for Board jurisdiction are satisfied.  See 45 C.F.R. § 16.7(b) (providing that the Board will notify the parties if the Board Chair determines that the appeal does not meet the conditions in section 16.3).  If the Board Chair finds there is “some question” about whether the Board has jurisdiction, the Chair “will request the written opinion of the HHS component which issued the decision.”  Id., App. A, ¶ G.  “Unless the Chair determines that the opinion is clearly erroneous, the Board will be bound by the opinion.”  Id.

Page 4

Procedural and Case Background

A. Grant Terminations and Reconsidered Decisions

 1. Termination of U-RISE Grant

By letter dated April 2, 2025, NIH terminated the University’s Undergraduate Research Training Initiative for Student Enhancement (U-RISE) grant no. 5T34GM145508-03.  See App’x 1, NIH Ltr. (Apr. 2, 2025).4   The letter states that NIH terminated the grant pursuant to the 2024 NIH GPS and 2 C.F.R. § 200.340(a)(2).  Id. at 1.  The letter further states that the NIH GPS (incorporated into all NIH grant awards) provides that NIH may terminate grants as outlined in 2 C.F.R. § 200.340.  Id. (citing NIH GPS at IIA-155).  NIH points to the version of section 200.340 in effect when the grant was approved on April 1, 2024, and asserts that section 200.340(a)(2) authorizes NIH to terminate grants “to the greatest extent authorized by law, if an award no longer effectuates the program goals or agency priorities.”  Id. (quoting section 200.340(a)(2)).  The letter states that this award was terminated because it “no longer effectuates agency priorities” and that “[t]he premise of this award is incompatible with agency priorities, and no modification of the project could align the project with agency priorities.”  Id. at 1-2. 

The letter further noted that the University “may object and provide information and documentation challenging this termination,” which it described as “a first-level grant appeal procedure that must be exhausted before you may file an appeal with the Departmental Appeals Board.”  Id. at 2 (citing 42 C.F.R. Part 50, Subpart D).  NIH instructed the University to submit any request for review to the Acting Director of NIH no later than 30 days after receipt of the termination notice.  Id. 

 2. Termination of G-RISE Grant

By email dated April 2, 2025, NIH terminated the University’s Graduate Research Training Initiative for Student Enhancement (G-RISE) grant no. T32GM148395-02.  App’x 1, NIH Email (Apr. 2, 2025).  The notice stated that the program was terminated “due to changes in NIH/HHS priorities.”  The notice gave no other reason for the grant termination and did not offer appeal rights.  The notice was sent by the Director of the Division of Training and Workforce Development within NIH’s National Institute of General Medical Sciences.  Id.

Page 5

3. Reconsidered Decisions

The University subsequently filed first-level appeals with NIH, challenging both grant terminations.  App’x 2, U-Rise Appeal (Apr. 30, 2025); G-Rise Appeal (May 1, 2025).  In separate letters dated May 28, 2025, NIH denied the University’s appeals (described as requests for reconsideration), stating that NIH had terminated the grants because “the research activities do not align with the agency’s priorities.”  App’x 2, U-Rise Reconsidered Decision (May 28, 2025); G-Rise Reconsidered Decision (May 28, 2025).  Both letters state that “[t]he program that supported this award was terminated because it is no longer aligned with NIH/HHS priorities” and, consequently, grants awarded under this program “can no longer be supported.”  Id.  The letters were signed by the Principal Deputy Director of NIH and did not indicate that the University’s appeal was reviewed in accordance with 42 C.F.R. Part 50, Subpart D.  See, e.g., 42 C.F.R. §§ 50.405, 50.406.  NIH did not assert, either in the initial termination notices or reconsidered decisions, that the University failed to comply with the terms of the awards.  No further appeal rights were offered in the reconsidered decisions. 

B. Notice of Appeal and Request for Agency Opinion on Jurisdiction

On June 27, 2025, the University filed a notice of appeal with the Board challenging both grant terminations.  Notice of Appeal at 1-8.  The University contends that the grant terminations are reviewable by the Board because they arise under direct, discretionary, project grant programs and are based on an alleged “failure to comply with the terms of an award.”  Id. at 2-3 (citing 45 C.F.R. Part 16, App. A, ¶ C(a)(2)).

On July 17, 2025, the Board Chair requested, under Part 16, Appendix A, ¶ G, that NIH submit an opinion about whether the Board may review the challenged determinations.  The Chair directed NIH to address among other issues:  (1) whether the reconsidered decisions appealed by the University are reviewable by the Board under Appendix A, ¶ C; (2) whether the reconsidered decisions are a type of “adverse determination,” as described in 42 C.F.R. § 50.404(a), to which NIH’s preliminary appeal process applies; and (3) whether any other HHS program regulation or memorandum of understanding authorizes Board review of the parties’ dispute.  In the same letter, the Board advised the University that it could file a response to NIH’s opinion within ten days of receiving it and invited both parties to submit evidence supporting their respective positions.  

C. NIH’s Opinion on Jurisdiction

On July 30, 2025, NIH filed an opinion asserting that the Board lacks jurisdiction over this matter because the grant terminations were based on a “nonalignment with agency priorities” and do not fall within any of the categories of disputes reviewable by the Board.  NIH Op. at 6.  NIH explained that the appealed decisions do not represent a disallowance, a termination for failure to comply with the terms of the award, a denial of

Page 6

a noncompeting continuation award for failure to comply with the terms of a previous award, or a voiding.  Id. at 3 (citing 45 C.F.R. Part 16, App. A, ¶ C).

Similarly, NIH opined that the grant terminations were not subject to the preliminary appeal process under Part 50, Subpart D, because they do not fall within any of the categories of “adverse determinations” specified in 42 C.F.R. § 50.404(a).  Id. at 4 (“The appealed decisions do not represent a termination for failure to comply with the terms of the award, a disallowance of an expenditure charged to the grant or failure to account for grant funds, a determination that a grant is void, or a denial of a noncompeting continuation award for failure to comply with the terms of a previous award.”).  NIH acknowledged that the initial termination letter for the U-RISE grant included “standard language” that referenced the preliminary appeal process under Subpart D but noted that, absent an “adverse determination” as specified in section 50.404(a), the exhaustion and notice requirements under Subpart D are irrelevant and inapplicable.  Id. at 5. 

Finally, in response to the Chair’s question about disputes reviewable under programs not specified in Appendix A (see 45 C.F.R. Part 16, App. A, ¶ A), NIH states that it is “not aware of any program regulation or memorandum of understanding authorizing the Board to review the disputes at issue here.”  Id. at 6. 

D. The University’s Response

The University filed a response to NIH’s jurisdictional opinion, arguing that the Board has jurisdiction because “the stated basis for the terminations falls within the provisions of both 45 C.F.R. Part 16, App. A, ¶ C(a)(2) and 42 C.F.R., Part 50.404(a)(1).”  Resp. to Op. at 2.  The University contends that the grant terminations were based on the alleged failure to comply with the terms and conditions of the awards, specifically the 2024 NIH GPS and 2 C.F.R. § 200.340(a)(2).  Resp. to Op. at 4-6 (“No longer effectuating the program goals or priorities of NIH in the NIH GPS and related C.F.R. reference is thus determined here to be a material failure sufficient for termination of the award.”).  The University further states that the Board should accept the appeal to provide “a measure of procedural fairness and an opportunity to seek an equitable remedy.”  Id. at 12. 

Analysis

I. The appeal does not concern a final written decision reviewable by the Board under 45 C.F.R. Part 16, Appendix A.

NIH’s opinion that the Board does not have jurisdiction because the grant terminations, and subsequent reconsidered decisions, do not fall within any of the categories of disputes reviewable by the Board under Part 16, Appendix A, is not clearly erroneous.  As NIH explained, and the termination notices and reconsidered decisions show, NIH terminated the U-RISE and G-RISE grants because it determined that the grants no

Page 7

longer effectuate or align with agency priorities.  See App’x 1, NIH Ltr. (Apr. 2, 2025), NIH Email (Apr. 2, 2025); App’x 2, Reconsidered Decisions (May 28, 2025).  There is no record evidence indicating that this matter involves a disallowance, a termination for failure to comply with the terms of the award, a denial of a noncompeting continuation award for failure to comply with the terms of a previous award, or a voiding (i.e., a decision that an award is unauthorized by statute or regulation or was fraudulently obtained).  See 45 C.F.R. Part 16, App. A, ¶ C(a)(1)-(4). 

In 2020, the Office of Management and Budget (OMB) issued revised guidance regarding federal award terminations under 2 C.F.R. § 200.340.5   The revised guidance replaced the “for cause” basis for termination with a provision authorizing federal awarding agencies to terminate an award “to the greatest extent authorized by law, if an award no longer effectuates the program goals or agency priorities.”  Compare 2 C.F.R. § 200.339(a)(2) (eff. to Aug. 12, 2020) with 2 C.F.R. § 200.340(a)(2) (eff. Aug. 13, 2020).  OMB stated that it revised section 200.340 “to strengthen the ability of the Federal awarding agency to terminate Federal awards, to the greatest extent authorized by law, when the Federal award no longer effectuates the program goals or Federal awarding agency priorities.”  See 85 Fed. Reg. 49,506, 49,507 (Aug. 13, 2020).  OMB further stated that it was “eliminating the termination for cause provision because this term is not substantially different than the provision allowing Federal awarding agencies to terminate Federal awards when the recipient fails to comply with the terms and conditions.”  Id. at 49,508.  OMB retained, as a separate basis for termination, the awarding agency’s authority to terminate an award if a grantee “fails to comply with the terms and conditions” of the award.  Compare 2 C.F.R. § 200.339(a)(1) (eff. to Aug. 12, 2020) with 2 C.F.R. § 200.340(a)(1) (eff. Aug. 13, 2020).  NIH states that it incorporated revised section 200.340 into the 2024 NIH GPS and, therefore, made it applicable to all NIH grants.  NIH Op. at 3 (citing NIH GPS at IIA-155).6   HHS, however, has not amended Part 16, Appendix A, or issued other regulations authorizing the Board to review a grant termination based on an awarding agency’s determination that an award no longer effectuates program goals or agency priorities. 

In its jurisdictional opinion, NIH further states that it “does not concede” that the dispute is one “arising under an ‘HHS program authorizing the award of direct, discretionary project grants or cooperative agreements,’” apparently suggesting that the dispute may fall outside of Appendix A for that reason as well.  NIH Op. at 3.  I need not decide

Page 8

whether the awards at issue are “direct, discretionary project grants” because, assuming that they are, the terminations are not reviewable under Appendix A, ¶ C.  Moreover, neither party contends that the grants are “mandatory” or that the appealed decisions would fall under any other reviewable category in Appendix A.

Finally, Appendix A states that “[d]isputes under programs not specified in this appendix” may be reviewed by the Board if such review is authorized by a “program regulation” or “memorandum of understanding between the Board and the head of the appropriate HHS operating component or other agency responsible for administering the program.”  45 C.F.R. Part 16, App. A, ¶ A.  This provision is inapplicable here.  I am aware of no program regulation or memorandum of understanding authorizing the Board to review disputes concerning NIH grant terminations based on the agency’s determination that an award no longer effectuates or aligns with “agency priorities.”

II. The University’s arguments do not demonstrate that NIH’s jurisdictional opinion is clearly erroneous.

The University argues that the grant terminations are reviewable by the Board because they are based on the alleged failure to effectuate or satisfy agency priorities, which is a failure to comply with grant terms and conditions.  Resp. to Op. at 4-5 (“No longer effectuating the program goals or priorities of NIH in the NIH GPS and related C.F.R. reference [2 C.F.R. § 200.340(a)(2)] is thus determined here to be a material failure sufficient for termination of the award.”); 6 (arguing that the basis for termination “is the failure to comply with the terms of the award based on the failure to meet agency priorities”); 7 (arguing that the April 2 termination was based on an alleged failure to comply with a “requirement” that “the award continue to meet the program goals and priorities of NIH”).  The University’s arguments are unpersuasive for several reasons.     

First, the assertion that NIH terminated the grants based on the University’s alleged noncompliance with award terms and conditions directly contradicts the plain language of the termination notices and reconsidered decisions, none of which alleged that the University failed to comply with any award terms or conditions.  While 2 C.F.R. § 200.340(a)(1) authorizes federal agencies to terminate a grant if the grantee “fails to comply with the terms and conditions” of the award, NIH did not rely on that provision for the terminations here.  Indeed, the University argues that the “key components” of the NIH termination decisions are explained in the termination letter of April 2, 2025.  Resp. to Op. at 5.  The April 2 letter, however, cites section 200.340(a)(2) – not section 200.340(a)(1) – as the basis for the termination.  App’x 1, NIH Ltr. (Apr. 2, 2025).

Second, there is no evidence that the terms or conditions of either award required the University to align its research project with the “agency priorities” that NIH had in mind when it terminated the grants.  The University asserts that this alleged “requirement” was imposed through the NIH GPS (Resp. to Op. at 5) but nothing in the NIH GPS supports

Page 9

that argument.  Moreover, section 200.340(a)(2) does not impose any “requirement” on grantees; rather, as discussed above, section 200.340(a)(2) authorizes a federal awarding agency to terminate an award on grounds separate from a determination that the grantee failed to comply with the terms and conditions of the award.  Cf. 2 C.F.R. § 200.340(a)(1) & (a)(2).

Third, there is no evidence that NIH terminated the grants because of any failure of the University to meet program “goals.”  The reconsidered decisions indicate that NIH terminated the grants because it regarded the grant program itself, and hence the program’s goals, to be incompatible with “agency priorities,” not because of any failure of the University to meet program goals.  In short, no evidence in the record shows that NIH terminated either grant under 2 C.F.R. § 200.340(a)(1) based on a determination that the University failed to comply with the terms and conditions of the award.  Rather, the record reflects that NIH terminated the grants under 2 C.F.R. § 200.340(a)(2) based on its determination that the awards themselves no longer effectuate agency priorities.7   

The University further asserts that an appeal to the Board “will provide the institution, its students and faculty with a measure of procedural fairness and an opportunity to seek an equitable remedy for the loss of these important grants.”  Resp. to Op. at 12.  The Board, however, has no legal authority to accept an appeal based on general notions of fairness or due process, and it also lacks authority to grant equitable relief.  See Va. Dep’t of Med. Assistance Servs., DAB No. 3108, at 31 (2023); Wash. State Health Care Auth., DAB No. 3037, at 30 (2021) (“[The Board] lacks the power to grant equitable relief because it is bound by all applicable laws and regulations.”).  The Board is not authorized to accept the University’s appeal on equitable or other grounds not specified in Part 16. 

With respect to discretionary grants, the Board may review a final agency decision terminating an award “for failure to comply with the terms of [the] award.”  45 C.F.R. Part 16, App. A, ¶ C(a)(2).  The Board is not authorized under Appendix A to review other types of terminations arising under direct, discretionary project grants.  Cf. Dignity, LLC, DAB No. 3121, at 22-23 (2023) (holding that the Board has no authority under Appendix A to review an agency decision denying a non-competing continuation award, except to the extent that the denial is based on the grantee’s failure to comply with the terms and conditions of the prior award).  Again, to obtain Board review of a final agency decision, all regulatory conditions for review must be satisfied, including the requirement that the appealed decision be reviewable under Part 16, Appendix A.  See 45 C.F.R. § 16.3; see also Dignity at 22-23.  That requirement is not satisfied here. 

Page 10

III. NIH’s preliminary appeal process under 42 C.F.R. Part 50, Subpart D is inapplicable.

While the initial termination letter concerning the U-RISE grant referenced 42 C.F.R. Part 50, Subpart D, the mere reference to Subpart D is insufficient to confer preliminary appeal rights under that subpart.  The preliminary appeal process under Subpart D applies to certain “adverse determinations” under discretionary project grants, none of which apply here.  See 42 C.F.R. § 50.404(a)(1)-(4).  As NIH explained, neither appealed decision is a termination for the University’s failure to comply with the terms of the award, a disallowance of an expenditure charged to the grant or failure to account for grant funds, a determination that a grant is void, or a denial of a noncompeting continuation award for failure to comply with the terms of a previous award.  NIH Op. at 4.  The University offered no evidence that this matter involves an “adverse determination” as specified in section 50.404(a). 

Conclusion

NIH’s opinion that the Board lacks jurisdiction over this matter is not clearly erroneous. The Board’s jurisdiction is limited, and no statute, regulation, or delegation of authority, confers the Board with jurisdiction to review this matter.  I therefore reject the University’s appeal for lack of jurisdiction.