DKT Memorial Fund Ltd. v. Agency for Intern. Development

Decision Date10 October 1989
Docket NumberNos. 88-5243,88-5266,s. 88-5243
Citation887 F.2d 275
Parties, 58 USLW 2237 DKT MEMORIAL FUND LTD., et al., Appellees, v. AGENCY FOR INTERNATIONAL DEVELOPMENT, et al., Appellants. DKT MEMORIAL FUND LTD., et al., Appellants, v. AGENCY FOR INTERNATIONAL DEVELOPMENT, et al., Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeals from the United States District Court for the District of Columbia (Civil Action No. 85-01668).

James F. Fitzpatrick, with whom Michael T. Shor, Gwyn F. Murray, Richard A. Frank and Michael E. Fine, Washington, D.C., were on the brief, for appellants/cross appellees.

Neil H. Koslowe, Atty., Dept. of Justice, with whom John R. Bolton, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., and William Kanter, Deputy Director, Dept. of Justice, Washington, D.C., were on the brief, for appellees/cross appellants.

Walter B. Slocombe, Ass'n for Voluntary Surgical Contraception, et al., Washington, D.C., with whom Janet Benshoof and Rachael N. Pine, American Civil Liberties Union, New York City, were on the joint brief, for amici curiae urging reversal.

Before RUTH BADER GINSBURG and SENTELLE, Circuit Judges, and

RE. *

Opinion for the Court filed by Circuit Judge SENTELLE.

Opinion, concurring in part and dissenting in part, filed by Circuit Judge RUTH BADER GINSBURG.

SENTELLE, Circuit Judge:

These consolidated cross-appeals arise from a decision of the United States District Court for the District of Columbia determining statutory and constitutional challenges to abortion-related executive restrictions on the use of population planning funds granted by the Agency for International Development ("AID") under the Foreign Assistance Act, 22 U.S.C. Sec. 2151 et seq. ("FAA" or "the Act"). The District Court determined that the limitations survived the statutory attacks but found a part of them invalid on constitutional grounds. DKT Memorial Fund Ltd. v. Agency for Int'l Dev., 691 F.Supp. 394 (D.D.C.1988). Plaintiffs, three organizations involved in population planning, appealed from the former determination, and AID from the latter. We, like the District Court, find the statutory arguments unmeritorious and affirm that portion of the District Court decision. As to the constitutional arguments, we conclude that some are without merit and that others were not properly before the Court. We therefore affirm in part, reverse in part, and remand for dismissal.

A. Statutory and Factual Background

In the FAA, specifically 22 U.S.C. Sec. 2151b(b), Congress authorized the President "to furnish assistance, on such terms and conditions as he may determine, for voluntary population planning." Section 2151b(f)(3) of the Act provides that "[n]one of the funds made available to carry out this subchapter may be used to pay for any biomedical research which relates, in whole or in part, to methods of, or the performance of, abortions or involuntary sterilization as a means of family planning." With certain exceptions, the President delegated the functions and allocation of funds authorized by 22 U.S.C. Sec. 2151b(b) to the Director of the United States International Development Cooperation Agency ("IDCA") in 1979. Executive Order No. 12,163, 44 Fed.Reg. 56,673 (1979). The Director, in turn, delegated that authority to the Administrator of AID. IDCA Delegation of Authority No. 1, 44 Fed.Reg. 57,521 (1979), as amended 45 Fed.Reg. 74,090 (1980).

In 1984, President Reagan announced certain abortion-related policy limitations on the use of family planning foreign aid funds. The Reagan Administration presented these new limitations at a United Nations sponsored International Conference on Population in Mexico City. These new limitations thus became known as the Mexico City Policy. See 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 states in part:

The United Nations Declaration of the Rights of the Child [1959] calls for legal protection for children before birth as well as after birth. In keeping with this obligation, 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. With regard to the United Nations Fund for Population Activities AID's foreign aid population assistance activities include all programs described in the Mexico City Policy. After the announcement of that policy, AID developed proposed clauses implementing the Mexico City Policy for insertion in the grant and cooperative agreement documents to be entered between AID on the one hand and foreign governments or domestic and foreign nongovernmental organizations ("DNGOs" and "FNGOs") on the other. Implementing contract clauses with FNGOs require that each grant recipient certify that "it does not now and will not during the term of this grant perform or actively promote abortion as a method of family planning in AID-recipient countries or provide financial support to any other foreign nongovernmental organization that conducts such activities." AID Handbook 13 at 4D-54. Thus, a foreign NGO, during the term of an AID-population assistance grant, is prohibited from using its own funds to perform or actively promote abortion as a method of family planning abroad.

[UNFPA], the U.S. will insist that no part of its contribution be used for abortion. The U.S. will also call for concrete assurances that the UNFPA is not engaged in, or does not provide funding for, abortion or coercive family planning programs; if such assurances are not forthcoming, the U.S. will redirect the amount of its contribution to other, non-UNFPA, family planning programs.

A DNGO receiving an AID grant or cooperative agreement must certify that it "will not furnish assistance for family planning under this grant to any foreign nongovernmental organization which performs or actively promotes abortion as a method of family planning in A.I.D.-recipient countries or which provides financial support to any other foreign nongovernmental organization that conducts such activities." AID Handbook 13 at 4C-48 (emphasis added). Thus, DNGOs are prohibited from using grant funds, not their own, for the promotion of abortion in AID-recipient countries. 1

As we will set out below, the current litigation attacks all the Mexico City Policy implementing limitations on the use of AID funds by NGOs for foreign population assistance.

B. The Proceedings to Date

DKT Memorial Fund Ltd. ("DKT"), a DNGO, together with two FNGOs, Parivar Seva Sanstha, of India ("PSS"), and Population Services Family Planning Programmes, Ltd., of England ("PSFP") (all collectively "plaintiffs"), brought the present action in 1985, seeking a declaratory judgment that AID's policy is invalid as violative of (1) plaintiffs' First Amendment speech and association rights, (2) the FAA, and (3) the Administrative Procedure Act, 5 U.S.C. Sec. 551 et seq. ("APA"). 2 Initially, the District Court dismissed the action for lack of standing, also suggesting, in dicta, that the suit presented nonjusticiable political questions. DKT Memorial Fund Ltd. v. Agency for Int'l Dev., 630 F.Supp. 238 (D.D.C.1986). We reversed, rejecting the District Court's dicta that the suit presented nonjusticiable political questions, granting leave to amend the complaint, and directing further proceedings on the question of standing under the amended complaint, together with appropriate proceedings for disposition on the merits, if standing was then found. DKT Memorial Fund Ltd. v. Agency for Int'l Dev., 810 F.2d 1236 (D.C.Cir.1987).

The District Court, thereafter, heard the matter on cross-motions for summary judgment, and entered the order which is the subject of the present appeal. DKT Memorial Fund Ltd. v. Agency for Int'l Dev., 691 F.Supp. 394 (D.D.C.1988). The District

                Court concluded that plaintiffs had standing to raise the statutory attacks, but that the President had the power under the FAA to impose the limitations announced in the Mexico City Policy.  Id. at 397-403.    The Court further concluded that the foreign plaintiffs had no First Amendment rights and therefore no standing to assert a violation of such rights.  Id. at 406.    The Court further concluded, however, that the limitations under review did violate the First Amendment rights of DKT and granted an injunction prohibiting AID's use of the abortion-related limitations on grant funds.  Plaintiffs and AID cross appealed from holdings adverse to their respective positions
A. The Foreign Assistance Act

We consider first plaintiffs' claim that the Mexico City Policy and the implementing clauses run afoul of the FAA. Their argument is two-pronged. First, they contend the challenged funding eligibility policy contravenes the statutory purposes of the Act and, thereby, exceeds executive authority. Second, they contend that the Executive, by adopting abortion-related restrictions more stringent than those set out in the Act, "contravenes the limits Congress established" and that the executive restrictions are, therefore, invalid. Brief for Appellant at 27. The District Court correctly ruled that both these arguments are without merit.

As to the first, that is, that the present executive practice is inconsistent with the general legislative policy, plaintiffs rely principally on statements of policy...

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