Albert Einstein College of Medicine, Ruling No. 2026-12 (2026)

REJECTION OF APPEALS

Albert Einstein College of Medicine (the College) seeks Departmental Appeals Board review of five final decisions by the National Institutes of Health (NIH) to terminate research grants issued to the College.  The College filed separate appeals for each termination, and the Board assigned a separate docket number for each appeal.  In response to the Board’s request for an agency opinion on jurisdiction, NIH submitted a written opinion (in each case) 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’s jurisdictional opinion is not clearly erroneous and, therefore, the appeals under Docket Nos. A-25-80, A-25-81, A-25-88, A-25-89, and A-25-90 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

1. 1. Docket No. A-25-80

By email dated April 2, 2025, NIH notified the College of the termination of award no. K12GM102779-13 due to “changes in NIH/HHS priorities.”  Dkt. 7a.4  On or about May 1, 2025, the College submitted an appeal to NIH, acknowledging that uniform guidance “applicable at the time of the most recent notice of award in August 2024 provide[s] in relevant part that a federal grant award may be terminated . . . ‘[b]y the Federal awarding agency . . . to the greatest extent authorized by law, if an award no longer effectuates the program goals or agency priorities . . . .’”  Dkt. 1, at 8, 10 (quoting 2 C.F.R. § 200.340(a)(2) (eff. Aug. 13, 2020)).  The College argued, however, that HHS-specific regulations governing grant terminations – not the uniform guidance under section 200.340 – “control” the termination process in this case.  Id. at 10-11. 

By letter dated May 30, 2025, NIH denied the College’s appeal (described as a request for reconsideration), stating that it terminated the grant because “the research activities do not align with the agency’s priorities.”  Dkt. 3a, at 6.  The reconsidered decision further states 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.  NIH did not assert, either in the initial termination notice or reconsidered decision, that the College failed to comply with the terms of the award and no appeal rights were offered in either notification.

2. 2. Docket No. A-25-81

By email dated April 2, 2025, NIH notified the College of the termination of award no. F31GM150215-02 due to “changes in NIH/HHS priorities.”  Dkt. 6b.  On or about April 30, 2025, the College submitted an appeal to NIH, acknowledging that uniform guidance “applicable at the time of the most recent notice of award in April 2024 provide[s] in relevant part that a federal grant award may be terminated . . . ‘[b]y the Federal awarding agency . . . to the greatest extent authorized by law, if an award no longer effectuates the program goals or agency priorities . . . .’”  Dkt. 1, at 9, 11 (quoting 2 C.F.R. § 200.340(a)(2) (eff. Aug. 13, 2020)).  The College argued, however, that HHS-specific regulations governing grant terminations – not the uniform guidance under section 200.340 – “control” the termination process in this case.  Id. at 11-12. 

Page 5

By letter dated May 30, 2025, NIH denied the College’s appeal (described as a request for reconsideration), stating that it terminated the grant because “the research activities do not align with the agency’s priorities.”  Dkt. 1, at 7.  The reconsidered decision further states 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.  NIH did not assert, either in the initial termination notice or reconsidered decision, that the College failed to comply with the terms of the award and no appeal rights were offered in either notification.

3. 3. Docket No. A-25-88

By email dated April 2, 2025, NIH notified the College of the termination of award no. F31GM146347-03 due to “changes in NIH/HHS priorities.”  Dkt. 7b.  On or about April 30, 2025, the College submitted an appeal to NIH, acknowledging that uniform guidance “applicable at the time of the most recent notice of award in June 2024 provide[s] in relevant part that a federal grant award may be terminated . . . ‘[b]y the Federal awarding agency . . . to the greatest extent authorized by law, if an award no longer effectuates the program goals or agency priorities . . . .’”  Dkt. 3a, at 8, 10 (quoting 2 C.F.R. § 200.340(a)(2) (eff. Aug. 13, 2020)).  The College argued, however, that HHS-specific regulations governing grant terminations – not the uniform guidance under section 200.340 – “control” the termination process in this case.  Id. at 10-11. 

By letter dated May 30, 2025, NIH denied the College’s appeal (described as a request for reconsideration), stating that it terminated the grant because “the research activities do not align with the agency’s priorities.”  Dkt. 3a, at 6.  The reconsidered decision further states 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.  NIH did not assert, either in the initial termination notice or reconsidered decision, that the College failed to comply with the terms of the award and no appeal rights were offered in either notification.

4. 4. Docket No. A-25-89

By email dated April 2, 2025, NIH notified the College of the termination of award no. F31GM150194-03 due to “changes in NIH/HHS priorities.”  Dkt. 6b.  On or about April 29, 2025, the College submitted an appeal to NIH, acknowledging that uniform guidance “applicable at the time of the most recent notice of award in June 2024 provide[s] in relevant part that a federal grant award may be terminated . . . ‘[b]y the Federal awarding agency . . . to the greatest extent authorized by law, if an award no longer effectuates the program goals or agency priorities . . . .’”  Dkt. 1, at 9, 11 (quoting 2 C.F.R. § 200.340(a)(2) (eff. Aug. 13, 2020)).  The College argued, however, that HHS-specific regulations governing grant terminations – not the uniform guidance under section 200.340 – “control” the termination process in this case.  Id. at 11-12. 

Page 6

By letter dated May 30, 2025, NIH denied the College’s appeal (described as a request for reconsideration), stating that it terminated the grant because “the research activities do not align with the agency’s priorities.”  Dkt. 1, at 7.  The reconsidered decision further states 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.  NIH did not assert, either in the initial termination notice or reconsidered decision, that the College failed to comply with the terms of the award and no appeal rights were offered in either notification.

5. 5. Docket No. A-25-90

By revised notice of award dated April 18, 2025, NIH notified the College of the termination of award no. 1F31AI186234-01, stating that “[i]t is the policy of NIH not to prioritize research programs related to DEI” and, “[t]herefore, no additional funding will be awarded for this project, and all future years have been removed.”  Dkt. 6b, at 6.  The notice explained that NIH undertook this action “in accordance with 2 C.F.R. § 200.340 as implemented in NIH GPS Section 8.5.2.”  Id.  The notice further stated that it is a final decision “unless within 30 days after receiving this decision you mail or email a written notice of appeal” to NIH.  Id. 

On or about May 15, 2025, the College submitted an appeal to NIH, acknowledging that uniform guidance “applicable at the time of the most recent notice of award in July 2024 provide[s] in relevant part that a federal grant award may be terminated . . . ‘[b]y the Federal awarding agency . . . to the greatest extent authorized by law, if an award no longer effectuates the program goals or agency priorities . . . .’”  Dkt. 1, at 9, 11-12 (quoting 2 C.F.R. § 200.340(a)(2) (eff. Aug. 13, 2020)).  The College argued, however, that HHS-specific regulations governing grant terminations – not the uniform guidance under section 200.340 – “control” the termination process in this case.  Id. at 12. 

By letter dated June 3, 2025, NIH denied the College’s appeal (described as a request for reconsideration), stating that it terminated the grant because “the research activities do not align with the agency’s priorities.”  Dkt. 1, at 7.  The reconsidered decision further states 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.  NIH did not assert, either in the initial termination notice or reconsidered decision, that the College failed to comply with the terms of the award.  No appeal rights were offered in the reconsidered decision.

Page 7

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

On or about June 27, 2025, the College filed notices of appeal with the Board challenging each of the above-described grant terminations.  In each case, the College argued that the grant termination and reconsidered decision are “invalid.”  The College did not address the Board’s jurisdiction but stated that each appeal was submitted pursuant to 45 C.F.R. § 16.7(a), which describes general requirements for filing a notice of appeal. 

On July 21, 2025, the Board issued letters acknowledging, in each case, the notice of appeal but explaining that there were questions about whether the conditions for Board review were met under 45 C.F.R. § 16.3 and Part 16, Appendix A.  The Board Chair, under Part 16, Appendix A, ¶ G, requested 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 by NIH 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 this dispute.  In the same letters, the Board advised the College that it could file a response to NIH’s opinion and invited both parties to submit evidence supporting their respective positions.  

C. NIH’s Opinion on Jurisdiction

On July 31, 2025, NIH filed a written opinion, in each appeal, asserting that the Board lacks jurisdiction because the grant terminations were for “nonalignment with agency priorities” and do not fall within any of the categories of disputes reviewable by the Board.  NIH Op. at 6 (citing 2 C.F.R. § 200.340(a)(2)).5  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.  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 four categories of “adverse determinations” specified in 42 C.F.R. § 50.404(a).  Id. at 4 (“The appealed decision does 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 non-competing continuation award for failure to comply with the terms of a previous award.”).

Page 8

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 dispute at issue here.”  Id. at 5-6. 

D. The College’s Response

On August 11, 2025, the College filed a response to NIH’s opinion, in each case, arguing that it is entitled to Board review because NIH terminated the awards (discretionary project grants) based on the erroneous belief that the College did not comply with the terms of the awards.  Resp. to Op. at 1, 3-4, 5-7 (citing 45 C.F.R. Part 16, App. A, ¶ C(a)(2), (3)).6  According to the College:

• NIH views compliance with new agency priorities as a necessary term or condition of the Award and terminated the Award based on its view that Appellant had not complied with the terms of the Award.  In doing this, NIH also denied noncompeting continuation awards for failure to comply with the terms of a previous award.

Id. at 1.  The College argues that the applicable HHS regulations “permit an agency to terminate an award only (i) for non-compliance, (ii) for cause, or (iii) with the consent of the awardee.”  Id. at 3 (citing 45 C.F.R. § 75.372(a)).  Since it is undisputed that NIH did not terminate the awards “for cause or with consent of the awardee,” the College posits that NIH “must have determined that it had authority to terminate the award[s] for non-compliance.”  Id.  The College further contends that NIH had no authority to terminate the awards based on a change in agency priorities.  Id. at 6-7.  Additionally, the College states that it exhausted the Part 50, Subpart D preliminary appeal process.  Id. at 4, 7-8.

Analysis

I. The appeals do 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 lacks 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.  NIH terminated the awards at issue due to changes in agency priorities and determined that “the research activities do not align with the agency’s priorities.”  See supra at pp. 4-6.  Moreover, in each reconsidered decision, NIH stated that “[t]he program that supported this award was terminated because it is no longer aligned with NIH/HHS priorities” and, 

Page 9

consequently, grants awarded under this program “can no longer be supported.”  Id.  Thus, NIH denies that any challenged decision represents a “termination for failure to comply with the terms of the award” or a “denial of a noncompeting continuation award for failure to comply with the terms of a previous award.”  NIH Op. at 3-4.  For its part, the College provided no evidence that any of the appeals here concern a termination for failure to comply with the terms of the award, or a denial of a noncompeting continuation award for failure to comply with the terms of a previous award.  See 45 C.F.R. Part 16, App. A, ¶ C(a)(2), (3).

In 2020, the Office of Management and Budget (OMB) issued revised guidance regarding federal award terminations under 2 C.F.R. § 200.340.7  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 § 8.5.2).8  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 

Page 10

fall outside of Appendix A for that reason as well.  NIH Op. at 3.  I need not decide 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.  The College concedes that this provision is inapplicable.  Resp. to Op. at 9 (“Appellant is not aware of any alternative program regulation or memorandum of understanding authorizing the Board to review the NIH decision at issue here.”).  I agree that no program regulation or memorandum of understanding authorizes 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 College’s arguments do not demonstrate that NIH’s jurisdictional opinion is clearly erroneous.

In each case, the College asserts that “NIH only had the authority to terminate the Award for non-compliance with the terms of the award” and, therefore, “must have decided to terminate the Award on that basis.”  Resp. to Op. at 5.  According to the College, each grant termination was based on NIH’s “incorrect belief” that (i) compliance with “new agency priorities” is a term or condition of the award, and that (ii) the College failed to comply with the terms of the award.  Id. at 6.  These arguments are both unfounded and unpersuasive. 

First, the assertion that NIH “must have” terminated each award for noncompliance with the terms of the award contradicts the plain language of the initial termination notices and reconsidered decisions.  None of the grant termination communications allege that the College failed to comply with the terms of the award.  While 2 C.F.R. § 200.340(a)(1) authorizes agencies to terminate an award if the grantee “fails to comply with the terms and conditions” of the award, NIH did not rely on that provision here.

Second, there is no evidence that the terms or conditions of any award required the College to align its research project with “new agency priorities.”  The College offered no evidence indicating that compliance with new agency priorities was a term or condition of the awards or that NIH purportedly held that “belief.”  Nothing in the NIH GPS supports the College’s argument.  Moreover, section 200.340(a)(2) does not impose any requirement on grantees; rather, as discussed above, that section authorizes a federal awarding agency to terminate an award on grounds separate from a determination that the 

Page 11

grantee failed to comply with the terms and conditions of the award.  Cf. 2 C.F.R. § 200.340(a)(1) & (a)(2).

Third, the College’s assertion that NIH could only terminate an award for failure to comply with the terms of the award is belied by the plain language of the NIH GPS, which is part of the standard terms and conditions of all NIH awards.  See NIH GPS at IIA-1 (§ 3) (“Part II includes the terms and conditions of NIH grants and cooperative agreements and is incorporated by reference in all NIH grant and cooperative agreement awards.”); see also Targazyme at 1-2; NIH Op. at 3, n.2.  Notably, the College does not dispute that the NIH GPS was made part of the terms and conditions of each NIH award.  NIH GPS § 8.5.2 provides: 

• If a recipient has failed to comply with the terms and conditions of award, NIH may take one or more enforcement actions which include disallowing costs, withholding of further awards, or wholly or partly suspending the grant, pending corrective action.  NIH may also terminate the grant in whole or in part as outlined in 2 CFR Part 200.340.     

NIH GPS at IIA-155 (emphasis added).  Thus, the notion that NIH could only terminate an award for noncompliance is unsupported by the NIH GPS, which is incorporated by reference in all NIH grants.  See NIH Op. at 3, n.2.  In short, there is no record evidence indicating that NIH terminated the awards at issue based on a determination that the College failed to comply with award terms or conditions.  Rather, the record plainly reflects that NIH terminated the awards under 2 C.F.R. § 200.340(a)(2) based on its determination that the awards themselves no longer effectuate agency priorities.9

Finally, the College is conflating the jurisdictional question with a different one:  whether NIH had the legal authority to terminate the grants based on a change in agency priorities.  Resp. to Op. at 6.  The question of Board jurisdiction, however, does not turn on whether NIH lawfully terminated the grants due to a change in agency priorities or whether NIH lawfully incorporated 2 C.F.R. § 200.340 into the NIH GPS prior to its adoption by HHS.  Those questions go to the merits of the dispute.  The question for purposes of determining jurisdiction, and the only issue decided here, is whether the challenged decisions are the type of final written agency decision reviewable by the Board under 45 C.F.R. Part 16, Appendix A.  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,” or denying “a noncompeting continuation award . . . where the denial is for failure to comply with the terms of a previous award.”  45 C.F.R. Part 16, App. A, ¶ C(a)(2), (3).  

Page 12

The Board is not authorized under Part 16, 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.     

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

The preliminary appeal process under Part 50, 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, no appealed decision here is 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 Op. at 4.  Thus, for the same reasons that the grant terminations are not reviewable by the Board under 45 C.F.R. Part 16, Appendix A, ¶ C, they are not subject to the preliminary appeal process under 42 C.F.R. Part 50, Subpart D.

Conclusion

NIH’s opinion that the Board lacks jurisdiction over each of these appeals 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 the termination decisions at issue here.  I therefore reject the appeals for lack of jurisdiction under Docket Nos. A-25-80,  A-25-81, A-25-88, A-25-89, and A-25-90.