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DKT MEM. FUND LTD. v. AGENCY FOR INTL. DEV.

March 7, 1986

DKT MEMORIAL FUND LTD., et al., Plaintiffs
v.
AGENCY FOR INTERNATIONAL DEVELOPMENT, et al., Defendants



The opinion of the court was delivered by: GREEN

 This is an action for injunctive and declaratory relief brought by three not-for-profit, nongovernmental organizations challenging the lawfulness and constitutionality of a policy of the Agency for International Development ("AID"). Under that policy, foreign nongovernmental organizations ("NGO's") that wish to receive U.S. population planning funds must certify to AID that they do not perform or promote activities relating to voluntary abortion as a method of family planning. Domestic NGO's are not required to make such a certification. Instead, they must agree in their grant contract that they will not subgrant any U.S. funds they receive to foreign NGO's that perform or promote abortion activities in foreign countries as a method of family planning.

 Before the Court are cross-motions for summary judgment. *fn1" For the reasons set forth below, the Court grants defendants' motion on the grounds that plaintiffs lack standing to bring this suit.

 STATEMENT OF FACTS

 Plaintiff DKT Memorial Fund Ltd. ("DKT") is a nonprofit, nongovernmental organization which finances and collaborates with other organizations, including plaintiffs Parivar Seva Sanstha ("PSS") and Population Services Family Planning Programmes Ltd. ("PSFP"), in various family planning programs. DKT is incorporated under the laws of New York.

 PSFP is a nonprofit charity registered in the United Kingdom and a member of the International Council of Voluntary Agencies. PSFP provides technical assistance in the operation of comprehensive family planning clinics around the world. PSFP also engages in certain activities relating to voluntary abortion.

 Plaintiffs have contracted jointly to carry out family planning projects, including a four-year comprehensive family planning project in the rural districts of Uttar Pradesh, India (the "Uttar Pradesh project"). The Uttar Pradesh project, which is designed to complement the Indian Government's rural family planning efforts in these areas, would put educators and mobile medical teams into the field in each district to provide comprehensive family planning services. This venture will not provide, or otherwise involve, abortion services or involuntary sterilization. DKT has agreed to serve as the project manager; PSS will act as the implementing agency; and PSFP will provide technical assistance.

 Under the Foreign Assistance Act ("FAA") of 1961, as amended, 22 U.S.C. §§ 2151 et seq., the President "is authorized to furnish assistance, on such terms and conditions as he may determine, for voluntary population planning." 22 U.S.C. § 2151b(b). The President has delegated the functions and allocation of funds authorized by 22 U.S.C. § 2151b to the Director of the United States International Development and Cooperation Agency, with certain exceptions, pursuant to Executive Order No. 12163, 44 Fed. Reg. 56673 (1979). The Director of the United States International Development and Cooperation Agency, in turn, delegated that authority to the Director of AID. IDCA Delegation No. 1, 44 Fed. Reg. 57521 (1979), as amended, 45 Fed. Reg. 74090 (1980).

 AID provides funds under 22 U.S.C. § 2151b through family planning grants and cooperative agreements to international agencies, foreign governments, foreign and domestic NGO's. In order to receive family planning funds, a potential grantee must be a single entity, it must submit a written application, and it must be prepared to comply with grant or agreement conditions. AID evaluates applications for funds under a variety of criteria, many of which are set forth in a publication known as "AID Handbook 13 (Grants)." Affidavit of John F. Owens, Associate Assistant to the Administrator for Management of AID ("Owens Affidavit") paras. 2-4.

 An AID grantee may subgrant the funds it receives to other organizations. AID generally requires that applicants for funds identify principal subrecipients in their applications, or that the grant or cooperative agreement include eligibility criteria for the selection of subrecipients by the grantee and that the subgrant proposal be submitted to AID for review and approval. Id. para. 5.

 At an international conference on population issues held in Mexico City in August 1984, the United States presented a policy statement previously issued by the White House on U.S. funding of voluntary population programs. *fn2" The statement, formally referred to as the Policy Statement of the United States of America at the United Nations International Conference on Population (Second Session) Mexico, D.F., August 6-13, 1984 ("the Mexico City Policy Statement"), announced a new U.S. policy with respect to the funding of certain organizations which promote or perform abortions in foreign countries as a method of family planning. It provided in relevant part:

 
the United States does not consider abortion an acceptable element of family planning programs and will no longer contribute to those of which it is a part. Accordingly, when dealing with nations which support abortion with funds not provided by the United States Government, the United States will contribute to such nations through segregated accounts which cannot be used for abortion. Moreover, the United States will no longer contribute to separate ...

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