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

July 1, 1988

DKT Memorial Fund Ltd., et al., Plaintiffs,
v.
Agency for International Development, et al., Defendants


Green, District Judge.


The opinion of the court was delivered by: GREEN

This matter is before the Court on cross-motions for summary judgment. The plaintiffs, one domestic and two foreign nongovernmental organizations ("NGO's"), challenge the lawfulness of the Agency for International Development's ("AID") implementation of the Policy Statement of the United States of America at the United Nations International Conference on Population in Mexico in August 1984 ("Mexico City Policy Statement"). The Policy provides that the United States not contribute funds to foreign NGO's that perform or actively promote abortion as a method of family planning abroad, even if the NGO's engage in these abortion-related activities with their own non-AID funds. AID implemented the Policy by drafting new clauses for insertion in its grants and agreements.

 The plaintiffs seek a declaratory judgment that AID's implementation of the Policy (1) is inconsistent with, and in excess of, the Foreign Assistance Act of 1961 ("FAA"), 22 U.S.C. § 2151 (1982), and the Continuing Appropriations Act of 1985, Pub. L. No. 98-473, 98 Stat. 1888; (2) is a violation of the plaintiffs' first and fifth amendment rights; and (3) is arbitrary and capricious under the Administrative Procedure Act ("APA"), 5 U.S.C. § 702 (1982). The plaintiffs also seek an order enjoining AID's implementation of the Policy.

 I. STATEMENT OF FACTS

 AID provides funds through family planning grants and cooperative agreements to international agencies, foreign governments, and foreign and domestic NGO's. A potential AID grantee must submit a written application and agree to comply with the grant conditions. AID evaluates applications for funds under a variety of criteria, many of which are set forth in the AID Handbook 13, entitled Grants.

 On July 13, 1984, the White House issued the Mexico Policy Statement, which guided the United States delegation to the United Nations International Conference on Population during August 6-13, 1984. This 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 nongovernmental organizations which perform or actively promote abortion as a method of family planning in other nations.
 
. . . .
 
U.S. Government authorities will immediately begin negotiations to implement the above policies with the appropriate governments and organizations.

 After the Mexico City Policy Statement was issued, AID drafted new standard provisions for insertion in family planning grants and cooperative agreements. The new provisions revised portions of Handbook 13 and were designed to implement the policy standards. These amended standards form the gravamen of the plaintiffs' complaint.

 The most recent version of these standards is found in Handbook 13, effective June 19, 1987. Foreign NGO's must certify that they "do not perform or actively promote abortion as a method of family planning in AID-recipient countries and [do] not provide financial support to any other foreign [NGO] that conducts such activities." Handbook 13 at 4C-49(d)(3)(i). In addition, the foreign NGO must certify that while receiving assistance under the grant, it will not perform or actively promote abortion or provide financial support to other foreign NGO's that conduct such activities. Id. at (d)(4)(i). Domestic NGO's are not required to make this certification. Instead, they must agree that they "will not furnish assistance for family planning under this grant to any foreign [NGO] which performs or actively promotes abortion as a method of family planning in AID-recipient countries or which provides financial support to any other foreign [NGO] that conducts such activities." Id. at (d)(1).

 Plaintiff DKT Memorial Fund, Ltd. ("DKT") is a nonprofit, nongovernmental organization incorporated under the laws of the State of New York. DKT finances and collaborates with other organizations in various family planning programs which include voluntary abortion services and the dissemination of information regarding the availability of those services.

 Plaintiff Parivar Seva Sanstha ("PSS") is a nonprofit, nongovernmental society based in New Delhi, India, and registered under the Societies Registration Act of India. PSS operates family planning clinics in India, each of which provides a comprehensive range of services including abortion and the dissemination of information regarding abortion.

 Plaintiff Population Services Family Planning Programmes Ltd. ("PSE" for Population Services Europe) is a nonprofit charity registered in the United Kingdom and a member of the International Council of Voluntary Agencies, with its principal base of operations in London, England. PSE provides technical assistance in the operation of comprehensive family planning clinics around the world. PSE engages in certain activities relating to voluntary abortion services and the dissemination of information regarding the availability of such services.

 The plaintiffs contend that AID's implementation of the Mexico City Policy Statement conflicts with the statutory scheme established by Congress in the FAA, violates the plaintiffs' first and fifth amendment rights, and is arbitrary and capricious.

 The defendants claim that all three of the plaintiffs lack standing to bring this suit and that the challenged clauses do not violate any congressional policies or any of the plaintiffs' first or fifth amendment rights.

 II. CONCLUSIONS OF LAW

 A. Standing

 This Court originally granted AID's motion for summary judgment, finding that the plaintiffs lacked standing because they could not show injury in fact. DKT Memorial Fund, Ltd. v. AID, 630 F. Supp. 238 (D.D.C. 1986). During argument before the Court of Appeals for the District of Columbia Circuit, counsel for the plaintiff-appellants orally moved to amend the appellants' complaint to add the affirmative allegation that, but for the Policy, the appellants would be eligible to receive AID funds. DKT Memorial Fund, Ltd. v. AID, 258 U.S. App. D.C. 257, 810 F.2d 1236, 1239 (D.C. Cir. 1987). The Court of Appeals granted the appellants' motion to amend and stated that "it follows that the burden of going forward is on the government to traverse appellants' allegations of eligibility other than on the policy grounds sub judice." Id. The Court of Appeals reversed and remanded for the district court's further consideration on the issue of standing in light of the amended complaint. Id.

 Article III restricts the business of the federal courts to the resolution of actual "cases" and "controversies" presented in an adversarial context and in a form which is capable of judicial determination. See Flast v. Cohen, 392 U.S. 83, 95, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968). The threshold inquiry, therefore, is "whether the plaintiff has made out a 'case or controversy' between himself and the defendant within the meaning of Art. III." Warth v. Seldin, 422 U.S. 490, 498, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975).

 Although the contours of Article III standing are at times uncertain and shifting, the fundamental focus of standing has remained constant. Flast, 392 U.S. at 95, 97-99. In order to have standing, a party must "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979). The injury must be fairly traceable to the challenged action and "likely to be redressed by a favorable decision." Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 41, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976).

 None of the plaintiffs has either applied directly to AID for funds or been rejected for funding. However, the Supreme Court has recognized that nonapplicants, who are otherwise qualified, may have standing to challenge a disqualifying statute or regulation. See Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977). In Arlington Heights, one plaintiff asserted that the local government's refusal to rezone land to permit the construction of low-and-moderate-income housing denied him the opportunity to obtain housing in Arlington Heights. Even though that plaintiff had not applied for housing and could not show that he, rather than another, would have been selected for the housing, the Supreme Court found that he had standing. All the plaintiff alleged in his complaint was that he sought and would qualify for housing. Id. at 264.

  When the plaintiffs in the present action amended their complaint, they added the following allegation: "But for the abortion eligibility policy, plaintiffs would be eligible to apply and to compete for and, if successful, to receive AID funds." *fn1" During oral argument of the summary judgment motions, the Court asked the defendants if they could state for the Court that the plaintiffs were not eligible to compete for AID funds, absent the abortion policy. Although there were some questions about the plaintiffs' accounting systems, *fn2" the defendants could not state that the plaintiffs were not eligible to compete for funds. It follows that the defendants did not carry their burden of traversing the plaintiffs' allegations of eligibility.

 1. DKT Memorial Fund

 The defendants claim that DKT has not suffered any injury as a result of the AID clauses since DKT is a domestic NGO. Domestic NGO's are not required by the AID clauses to certify that they neither perform nor actively promote abortions before they are eligible to compete for an AID family planning grant or agreement. The defendants point out that DKT is free to compete for funds, even if it performs or promotes abortions. They claim that DKT can still use its own funds to collaborate with foreign NGO's that use or counsel abortion as family planning. They also state that the impact of the AID restrictions on DKT, when dealing with foreign NGO's, is "so remote and speculative that it cannot constitute any cognizable injury to DKT." *fn3"

 This argument, however, ignores the basis for applying for AID funds. The domestic NGO cannot be viewed in a vacuum. DKT's purpose in seeking AID funds is to administer the Uttar Pradesh Project in India by using foreign NGO's. The AID restrictions bar any domestic NGO from collaborating with any foreign NGO that performs or actively promotes abortion as a method of family planning, even if the foreign NGO's are using their own funds. This scenario is neither remote nor speculative. If DKT could use its own funds for these projects, it would not need to seek them from AID.

 DKT suffers a direct injury as a result of the AID restrictions. DKT is not eligible to compete for AID funds whenever it plans to use those funds with foreign NGO's like PSE and PSS. This injury of ineligibility to compete for or receive AID funds is directly traceable to the AID restrictions as they are the actual bar. As DKT alleges, "but for" the abortion eligibility policy, it would be eligible to apply and to compete for AID funds. A favorable decision would redress this bar. The plaintiffs need not show that they are certain to receive funding. See West Virginia Ass'n of Community Health Centers v. Heckler, 236 U.S. App. D.C. 287, 734 F.2d 1570, 1576 (D.C. Cir. 1984). A favorable decision will not guarantee this funding, but it will enable DKT to compete for AID funds that are to be used in conjunction with foreign NGO's that perform or actively promote abortion as a method of family planning.

 The Court of Appeals for the District of Columbia Circuit also follows the "zone of interests" test, one of the prudential principles set out by our Supreme Court. The interest sought to be protected by the plaintiff must be "arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Association of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970). The Court also stated that, "where statutes are concerned, the trend is toward enlargement of the class of people who may protest administrative action." Id. at 154.

 The zone of interests test "requires some indicia -- however slight -- that the litigant before the court was intended to be protected, benefited or regulated by the statute under which suit is brought." Copper & Brass Fabricators Council, Inc. v. Department of the Treasury, 220 U.S. App. D.C. 133, 679 F.2d 951, 952 (D.C. Cir. 1982). Our Court of Appeals has stated that "'slight beneficiary indicia' are sufficient to sustain standing." American Friends Serv. Comm. v. Webster, 231 U.S. App. D.C. 265, 720 F.2d 29, 50 (D.C. Cir. 1983) (citation omitted).

 One of the purposes of the family planning section under the FAA is to provide assistance to developing countries in order "to reduce the rate of population growth." 22 U.S.C. § 2151b(b). Those that benefit from this assistance are government population services and NGO's. AID determines which organizations qualify for population assistance funds and DKT is one of these organizations. DKT is arguably within the zone of interests to be protected or regulated by the FAA, and as such, also by AID. Therefore, this Court finds that DKT has fulfilled the Article III requirements of standing and is before this Court properly.

 2. The Foreign Plaintiffs PSE and PSS

 The defendants rely on the "general rule that non-resident aliens have no standing to sue in United States courts." Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144, 152 (D.D.C. 1976). *fn4" The defendants also claim that these plaintiffs do not fall into any of the recognized exceptions to this rule, for example:

 
Where the res at issue is within a domestic court's jurisdiction, or when a non-resident alien makes application for relief under a United States statute which permits granting the requested relief to non-resident aliens, or when a non-resident alien is brought from abroad ...

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