Alan Guttmacher Institute v. McPherson

Decision Date06 December 1984
Docket NumberNo. 83 Civ. 4461-CSH.,83 Civ. 4461-CSH.
PartiesThe ALAN GUTTMACHER INSTITUTE; Richard Udry, Ph.D.; Larry Bumpass, Ph.D.; Charles F. Westoff, Ph.D.; John G. Kantner, Ph.D.; Ronald Freedman, Ph.D.; Samuel Preston, Ph.D., Plaintiffs, v. M. Peter McPHERSON, Administrator of the Agency for International Development (AID) and Director of the International Development Cooperation Agency; Jay Morris, Deputy Administrator for AID; Richard R. Miller, former Chairman of the Communications Review Board for AID, and his successor in office; and Walter Rockwood, Mary Beth Bloomberg, Dee Ann Smith, Kate Semerad, Don Thieme, Doug Trussell, and Beth Hogan, members of the Communications Review Board for AID, and their successors in office; George P. Shultz, Secretary of State; David A. Stockman, Director of the Office of Management and Budget, Defendants.
CourtU.S. District Court — Southern District of New York


Suzanne M. Lynn, Janet Benshoof, Nan D. Hunter, Burt Neuborne, American Civ. Liberties Union Foundation, Samuel Whitney Seymour, John L. Hardiman, New York City, Steven R. Shapiro, Arthur Eisenberg, Madeline Kochen, N.Y. Civ. Liberties Union, New York City, for plaintiffs; William Josephson, Fried, Frank, Harris, Shriver & Jacobson, New York City, Lawrence R. Sidman, Fried, Frank, Harris, Shriver & Kampelman, Washington, D.C., of counsel.

Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for defendants; Denny Chin, Asst. U.S. Atty., New York City, Stephen L. Wilson, Atty. Advisor, Office of the Gen. Counsel, Agency for Intern. Development, of counsel.


HAIGHT, District Judge.

This action challenges the decision of the Agency for International Development ("AID") not to renew a grant which provided funding for publication of International Family Planning Perspectives ("Perspectives"), a journal published by plaintiff The Alan Guttmacher Institute ("the Institute"). Defendants have moved for judgment on the pleadings pursuant to Rule 12(c), Fed.R.Civ.P., raising individual objections to certain claims and asserting sovereign immunity as a defense to all of the claims.

Factual Background

The Institute is a private, non-profit corporation which conducts research and disseminates information on population and family planning. Since 1974, it has published under various titles (currently International Family Planning Perspectives) a quarterly journal concerned with research and news in the field of international population control and family planning. Intended for use primarily by professionals, Perspectives publishes both original articles and summaries of recent developments culled from other journals in the field.

AID is described by the government as a "semi-autonomous" agency existing within the International Development Cooperation Agency ("IDCA"), which is itself described as an "independent" agency organized within the Department of State. Initial funding for Perspectives was provided by an AID grant, and AID continued as a major economic sponsor of the journal until early last year. It was at that time that the grant prior in time to the one at issue here was permitted to expire without renewal.

In April, 1981, the government's Office of Management and Budget ("OMB") issued a directive, Bulletin No. 81-16, intended to spur agencies to pare government expenditures by eliminating unnecessary spending on publications. In order to implement the directive, AID set up a body called the Communications Review Board ("CRB"). In December, 1982, CRB issued a recommendation that Perspectives' grant not be renewed. CRB's negative evaluation contradicted a recommendation by the agency's Office of Population that funding be continued. Defendant McPherson, head of both AID and IDCA, apparently accepted CRB's recommendation for in February, 1983, he announced that AID would not renew the Perspectives grant. Since that time Perspectives has operated on a reduced scale with private funding.

The crucial OMB directive instructed agencies to identify and eliminate "duplicative and wasteful" publications. Apparently OMB had in mind something more than economic waste, however, for a "Model Control Plan" issued to guide implementation of directive suggested that one factor to be used in evaluating the wastefulness of a publication was whether it "reflects agency and Administration goals and priorities." (Attachment A-4, "Model for Agency Control Systems," appended to defendants' Reply Memorandum). CRB undertook the review of Perspectives with which we are here concerned in 1982 in order to implement the OMB Bulletin. It is not clear from the complaint exactly how the review was accomplished; allegedly CRB had not established any formal procedures at this time. In any event, CRB recommended termination of the grant in a memorandum dated December 15, 1982. The memorandum purported to base its recommendation on both the alleged economic superfluousness of the journal and on its advocacy of abortion as a family-planning tool. Plaintiffs claim that these reasons are pretextual, intended to disguise the true reasons for the negative rating, which are alleged to have been CRB's desire to suppress Perspectives' publication of accurate, neutral information about the use of abortion in a family planning programs, presumably on the theory that neutral information has the effect of promoting its use, and to punish the Institute, Perspectives' publisher, "for its research and public education activities in support of reproductive rights." (Complaint, ¶ 31).

CRB's awareness of Perspectives' attitude towards abortion was, of course, not entirely hidden; the memorandum accuses Perspectives of publishing articles the "thrust" of which "constituted advocacy of abortion," a position "inconsistent with administration and AID policy." CRB feared that Perspectives' coverage of abortion "may provide a potential and unnecessary embarrassment to the Administrator and AID as well as jeopardizing the integrity of the CRB, its members, and its mandate from OMB." Plaintiffs state that the allegation underlying these perceived concerns —that Perspectives advocated abortion —is simply false, as are the representations that Perspectives is not economically justified.

Analysis of the Complaint

Plaintiffs, the Institute and various professionals who read or write for the journal, instituted this action in order to challenge the AID action. The complaint alleges five causes of action:

First cause of action: in terminating funding for Perspectives because its publisher espoused ideas in other fora with which the administration disagrees, defendants violated the Institute's First Amendment rights.

Second cause of action: in terminating funding for Perspectives because it published accurate reportage defendants "engaged in content-based discrimination in violation of the First and Fifth Amendments."

Third cause of action: in terminating the funding for Perspectives defendants violated the Foreign Assistance Act of 1961 ("FAA"), under which Perspectives was funded.

Fourth cause of action: in terminating funding for Perspectives without a formal hearing and on the basis of improper political pressure, CRB deprived plaintiffs of property without due process of law in violation of the Fifth Amendment.

Fifth cause of action: in terminating funding for Perspectives defendants acted arbitrarily and capriciously in violation of the Administrative Procedure Act ("APA").

Plaintiffs request a declaratory judgment that defendants' conduct was unlawful, disqualification of the offending members of CRB from further consideration of the Institute's grant applications, and far-reaching injunctive relief which would reconstitute the CRB and either restore Perspectives' funds or secure a lawful review of its application.

Defendants move for judgment on the pleadings, arguing primarily 1) that the funding decision is committed to agency discretion by law and is thus unreviewable under the APA, 2) that the relief requested is a type of affirmative injunctive relief which is unavailable against the government in the absence of its consent, 3) that the individual plaintiffs lack standing to pursue the action, 4) that a grant recipient has no property right protected by the Fifth Amendment's due process clause and 5) that the action is moot.

I. Review Under the APA

This is an action for review of an administrative decision. Although five causes of action are stated, all require the court to examine in one way or another the lawfulness of the AID's decision not to renew the Institute's grant. The fifth cause of action alleges that defendants acted arbitrarily and capriciously in violation of the APA. Reversing the numerical order of things, I will first deal with defendants' challenge to that cause of action.

The question presented by this aspect of the motion is not whether review is available at all but rather on what terms it will be conducted. As the D.C. Circuit has recognized, "reviewability and the scope of review are two separate questions." National Association of Postal Supervisors v. United States Postal Service, 602 F.2d 420, 432 (D.C.Cir.1979). It is fundamental to our system of law that the district court always stands ready to insure that governmental—e.g., agency—action has not overstepped constitutional bounds. See, Crowell v. Benson, 285 U.S. 22, 64, 52 S.Ct. 285, 297, 76 L.Ed. 598 (1932); Grace Towers Tenants Association v. Grace Housing Development Fund Co., 538 F.2d 491, 496 (2d Cir.1976); WWHT, Inc. v. FCC, 656 F.2d 807, 815 n. 15 (D.C.Cir.1981). Nor are agencies at liberty to violate clear statutory demands free from the threat of judicial oversight. Kletschka v. Driver, 411 F.2d 436, 444 (2d Cir.1969); Grace Towers, supra, 538 F.2d at 496; New York Racing Association, Inc. v. NLRB, 708 F.2d 46, 54 (2d Cir.), cert. denied, ___ U.S. ___, 104 S.Ct. 276, 78 L.Ed.2d 256...

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