that the Government of India had rejected PSS's application. Bhatia said that in accordance with the grant agreement between the United States and India, "no portion of the grant proceeds can be attributed to sterilization or abortion related cost." Letter from Bhatia to PSS. He added that PSS "primarily performs or promotes abortion as a method of Family Planning and such activities are not eligible for funding under this [Project]." Id.
CONCLUSIONS OF LAW
Article III restricts the jurisdiction of federal courts to "cases and controversies," and "whether the plaintiff has made out a 'case or controversy' between himself and the defendant within the meaning of Art. III . . . is the threshold question in every federal case." Warth v. Seldin, 422 U.S. 490, 498, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). Despite the apparent simplicity of that inquiry, the standing issue is complex and confused and cannot be reduced to absolute rules.
"The essence of the standing inquiry is whether the parties seeking to invoke the court's jurisdiction have 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination'" of difficult questions. Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72, 57 L. Ed. 2d 595, 98 S. Ct. 2620 (1978) (quoting Baker v. Carr, 369 U.S. 186, 204, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962)). The Supreme Court has given shape to the concept of Article III standing in recognizing certain basic requirements. The plaintiff must allege an "injury in fact" and a causal connection between the injury and the challenged conduct. Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982). The requisite injury has been variously described as "distinct and palpable," Warth v. Seldin, 422 U.S. at 501, and not "abstract," "hypothetical," or "conjectural." O'Shea v. Littleton, 414 U.S. 488, 498, 38 L. Ed. 2d 674, 94 S. Ct. 669 (1974). The causal element essentially requires a showing by plaintiff that the injury is "fairly traceable" to the challenged conduct. Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 261, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977).
Application of these constitutional standards to the present case convince the Court that plaintiffs do not meet the Article III requirements for standing. Unlike the appellee in Regents of University of California v. Bakke, 438 U.S. 265, 57 L. Ed. 2d 750, 98 S. Ct. 2733 (1978), plaintiffs have never applied to AID for funding and the challenged policy in no way prevents them from applying for funding. At most, plaintiffs are able to assert that submitting an application to AID would be futile based upon their understanding of the Mexico City Policy Statement and the June 21, 1985, Memo.
The "chilling effect" which is produced by their fear of being denied funding based upon a putatively illegal policy is foreclosed as a basis for standing by the Supreme Court's holding in Laird v. Tatum, 408 U.S. 1, 33 L. Ed. 2d 154, 92 S. Ct. 2318 (1972). There the plaintiffs alleged that a program of intelligence gathering conducted by the Army chilled the exercise of their First Amendment rights of speech and assembly. The Court declined to entertain the suit, holding that "allegations of a subjective 'chill' are not an adequate substitute for a claim of specific present objective harm or threat of future harm." Id. at 13-14; cf. Allen v. Wright, 468 U.S. 737, 104 S. Ct. 3315, 3326, 82 L. Ed. 2d 556 (1984) (reaching similar conclusion regarding the stigmatization effect of governmental action).
Courts do not require that a plaintiff-applicant prove that he would qualify for, or receive, a desired grant or contract in order to establish standing. Regents of University of California v. Bakke, 438 U.S. at 280-81 n.14. On the other hand, the nonapplicant must bear the burden of coming forward with information that he would have presented in an application. Teamsters v. United States, 431 U.S. 324, 369, 52 L. Ed. 2d 396, 97 S. Ct. 1843 n.53. Plaintiffs seek an opportunity to compete for AID funds absent the Mexico City Policy requirements. Plaintiffs concede that they have never applied for AID funding, yet they offer only vague, self-serving statements to indicate that they would otherwise qualify for AID funding. See, e.g., AID Handbook 13 (Grants); compare Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. at 264 (undisputed fact that plaintiff-applicant was qualified for benefit save unlawful action by the local government was "injury in fact") and West Virginia Ass'n of Community Health Centers v. Heckler, 236 U.S. App. D.C. 287, 734 F.2d 1570, 1575-76 (D.C. Cir. 1984) (plaintiff had standing to challenge allocation of federal funds because they demonstrated that they would qualify to receive these funds thereby adequately averring a causal relationship between defendant's policy and plaintiff's asserted injury).
Even had plaintiffs submitted information tending to show that they satisfy all the AID requirements, the Mexico City Policy aside, this Court would be wrong to intrude upon the agency's area of expertise by offering its determination of plaintiffs' suitability. See Far East Conference v. United States, 342 U.S. 570, 574, 96 L. Ed. 576, 72 S. Ct. 492 (1952) (in cases raising issues of fact not within conventional experience of judges or cases requiring exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over); accord Engelhardt v. Consolidated Rail Corp., 756 F.2d 1368, 1369 (2d Cir. 1985).
Furthermore, unlike the plaintiff in Planned Parenthood Association of Chicago v. Kempiners, 700 F.2d 1115 (7th Cir. 1983), DKT, PSS, and PSFP cannot point to a "track record" of functional experience with the agency process, having applied for and received funding in the past. In Planned Parenthood, the plaintiff challenged the constitutionality of a state statute denying it state funds under a program dealing with problem pregnancies because they offered its clients abortion counseling and referral services. The plaintiff's application for funds was rejected for reasons apparently having nothing to do with the challenged statute. In a per curiam opinion, the Court of Appeals remanded the case for taking of additional evidence on the issue of standing. Though difficult to distill a line of reasoning common to the three separate opinions issued, of significance is the fact that the plaintiff did submit an application for funding to the state agency responsible for the program.
The plaintiffs are each involved in the population planning business. While they may well benefit should they receive AID funding, plaintiffs have suffered no injury traceable to the challenged policy nor do the parties share any sort of a relationship to indicate something more than plaintiffs' generalized interest in AID's funding policy. See Babbitt v. United Farm Workers Union, 442 U.S. 289, 60 L. Ed. 2d 895, 99 S. Ct. 2301 (1979) (something more than plaintiff's general concern is necessary to evidence a genuine controversy). Moreover, plaintiffs have not demonstrated an injury to themselves that is likely to be redressed by a favorable decision of their claim. Warth v. Seldin, 422 U.S. at 498. Were the Court to invalidate AID's implementation of the Mexico City Policy Statement today, plaintiffs would be in no better position to receive funding tomorrow as they have never applied nor been rejected for AID funding.
"The difference between an abstract question and a 'case or controversy' is one of degree . . . and is not discernible by any precise test." Babbit v. United Farm Workers Union, 442 U.S. at 297. Consistent with the Constitution and sound prudential limitations, this Court's inquiry leads it to conclude that plaintiffs' asserted injury is not "distinct and palpable" and, therefore, not sufficient to meet the Article III requirements for standing.
Warth v. Seldin, 422 U.S. at 501. An order is attached.
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 630 F. Supp.]
Upon consideration of plaintiffs' motion for summary judgment; defendants' opposition thereto and cross-motion for summary judgment; plaintiffs' reply and opposition to defendants' motion; defendants' reply; supplemental briefing, affidavits, and exhibits submitted by the parties; a brief amici curiae filed on plaintiffs' behalf; the hearing held in this matter; and for the reasons set forth in the accompanying opinion, it is by the Court this 6th day of March 1986,
ORDERED that plaintiffs' motion for summary judgment is denied; it is further
ORDERED that defendants' motion for summary judgment is granted; and it is further
ORDERED that this action is dismissed.