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March 15, 1994

CHRISTOPHER SMITH, et al., Plaintiffs,
BRIAN ATWOOD, et al., Defendants.

The opinion of the court was delivered by: STANLEY SPORKIN

 This matter comes before the Court on Defendants' Motion to Dismiss. The motion will be granted.

 Plaintiff Christopher H. Smith is a member of the United States House of Representatives. Plaintiffs Tong Wai Zhang and Zhen Hue Guo are Chinese nationals who are currently In federal custody and awaiting deportation. Both Chinese plaintiffs have applied for asylum In the United States. Plaintiffs have sued Brian Atwood, the Administrator of the Agency for International Development ["AID"], the United States Agency for International Development, and the International Development Cooperation Agency. Plaintiffs' claim is that Atwood illegally failed to determine that the United Nations Fund for population Activities ["UNFPA"] is barred from receiving funding from the United States. AID is charged with providing assistance for family planning and demographic projects abroad. UNFPA provides grants to foreign countries and private agencies engaged in population planning activities abroad.

 The complaint seeks judicial review of Defendant Atwood's decision. Plaintiffs maintain Defendant Atwood should have found that UNFPA is ineligible to receive U.S. funding because UNFPA supports family planning programs in China and because China has a coercive family planning policy that mandates abortion for pregnant women and/or sterilization for parents who have exceeded the maximum allowable number of children.

 Plaintiffs seek a permanent injunction, enjoining the disbursement of any U.S. funds to UNFPA during the 1994 fiscal year. Plaintiffs also move for a preliminary injunction, pendente lite, to block the scheduled disbursement on or after March 1, 1994, of up to $ 40 million in population planning assistance to UNFPA. As injury from Defendants' actions, Plaintiff Smith alleges that his efficacy as a member of Congress has been impaired and his constitutional authority to authorize appropriations with conditions attached has been hampered. The Chinese nationals allege as injury the fact that if they are deported to China, it is possible that they will be subjected to "China's brutal coercive population programs." Plaintiffs' Opposition to Defendants' Motion to Dismiss at 11. Plaintiffs claim that debarment of UNFPA funding by the U.S. could cause "the Chinese government to undertake a serious effort to curb at least the most blatantly coercive practices in the program, which would benefit Chinese couples that would otherwise be victimized by those practices." Id. at 12-13.

 Defendants oppose the motion for a preliminary injunction and have moved to dismiss the complaint for lack of standing and lack of a justiciable controversy.

 Underlying Facts

 Section 104(b) of the Foreign Assistance Act of 1961, as amended, provides in part that the President is authorized to furnish assistance for voluntary population planning. 22 U.S.C. ยง 2151(b) et seq. The President has been granted the discretion by Congress to furnish family planning assistance "on such terms and conditions as he may determine." 22 U.S.C. 2151b (b). None of this assistance may be used to pay for the performance of abortions or sterilizations as a method of family planning, or to coerce any person to practice abortions or undergo sterilizations. 22 U.S.C. 2151b(f).

 In the 1985 amendments to the Foreign Assistance and Related Programs Act, the restriction on population funds to use in voluntary family planning programs was further strengthened when the Congress gave the President the authority to withhold U.S. funds from any organization which the President determined to be supporting coercive family planning programs:

none of the funds made available in this Bill, nor any unobligated balances from prior appropriations may be made available to any organization or program which, as determined by the President of the United States, supports or participates in the management of a program of coercive abortion or involuntary sterilization.

 P.L. 99-88, C. V, Stat. 293 (1985) (emphasis added). This specific language has been called the "Kemp-Kasten" Amendment. Kemp-Kasten has been reenacted by Congress every year since 1985. *fn1"

 The President delegated to the Secretary of State the authority to make the Kemp-Kasten determination that an organization is ineligible to receive population planning assistance. The Secretary further delegated this authority to the Administrator of AID. See 22 U.S.C. 2381 (a) (authorizing the President to exercise foreign assistance functions through such agency or officer of the United States Government as he shall direct).

 From 1985 to 1992, prior Administrators of AID had determined, pursuant to Kemp-Kasten, that UNFPA was barred from receiving population planning assistance from the United States. Withholding was based on the Administrators' determination that UNFPA was participating in the management of a program of coercive abortion and involuntary sterilization in the People's Republic of China. See Population Institute v. McPherson, 254 U.S. App. D.C. 395, 797 F.2d 1062 (D.C. Cir. 1986) (finding AID Administrator's decision under Kemp-Kasten to withhold funding from UNFPA was supported by the record and dismissing a challenge to the decision by members of Congress and a recipient organization). In 1993, the Clinton Administration changed the seven year-old policy and decided to resume funding for UNFPA. In September, 1993, the United States made a contribution to UNFPA for fiscal year 1993 of $ 14.5 million. Defendants' Motion to Dismiss at 6.

 In a September 10, 1993 letter to Senator Jesse Helms of the Senate Committee on Foreign Relations, Defendant Atwood illuminated the basis for his determination that UNFPA should be able to receive U.S. funds:

The United States strongly opposes coercion in family planning programs, and State Department representatives to the UNFPA Governing Council meeting in June expressed our dismay about reported continued abuses in China. In deciding to resume assistance for UNFPA, this Administration did not determine that China's population control program is not coercive, but rather that UNFPA does not support or participate in the management of a program of coercive abortion or involuntary sterilization.
This Administration does not believe it should attribute to UNFPA human rights violations in a government's population program unless there is clear evidence that UNFPA knowingly and intentionally provides direct funding or other support for those abuses. The Kemp-Kasten amendment is an ambiguous provision, and Congress did not indicate an intention to apply this restriction automatically and more broadly to an organization which provides assistance to a country that has a program of coercive abortion or involuntary sterilization.
. . . .
During the June Governing Council meeting, the Executive Director of UNFPA likewise condemned coercion in farily planning programs. She explained that UNFPA has had a constant dialogue with Chinese officials about reproductive freedom and monitors its project carefully to ensure adherence to universally accepted standards of human rights. Several other country members of the Governing Council repeated their longstanding belief that UNFPA's presence in China is a moderating influence and a catalyst for change there.
. . . .
The United States will ensure that UNFPA reviews, during each annual Governing Council meeting, progress made toward improving reproductive freedom in China. In addition, if there are not significant improvements in China's population program, the United States will not support ...

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