DKT Memorial Fund, Ltd. v. Agency for Intern. Development, 86-5250

Decision Date13 February 1987
Docket NumberNo. 86-5250,86-5250
PartiesDKT MEMORIAL FUND, LTD., et al., Appellants, v. AGENCY FOR INTERNATIONAL DEVELOPMENT, et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

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

Richard A. Frank, with whom Michael E. Fine was on the brief, for appellants.

Neil H. Koslowe, Sp. Litigation Counsel, Dept. of Justice, with whom Richard K. Willard, Asst. Atty. Gen., Dept. of Justice, Joseph E. diGenova, U.S. Atty. and Anthony J. Steinmeyer, Asst. Director, Dept. of Justice were on the brief, for appellees.

Before MIKVA and SILBERMAN, Circuit Judges, and McGOWAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

In this action one domestic and two foreign nongovernmental organizations ("NGOs") 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, Mexico, August 1984 (the "Policy"). The Policy commits the United States not to contribute funds to foreign NGOs that perform or actively promote abortion as a method of family planning abroad, even if they 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. A foreign NGO must certify that it does not engage in the prohibited abortion-related activities or provide funds to other foreign NGOs that conduct such activities. Joint Appendix (J.A.) 120-21. A domestic NGO must agree that it "will not furnish assistance 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." J.A. 70, 93-94. Appellants seek a declaratory judgment that AID's Policy is inconsistent with, and in excess of, the Foreign Assistance Act of 1961, 22 U.S.C. Sec. 2151 et seq. (1982), and the Continuing Appropriations Act, 1985, Pub.L. 98-473, 98 Stat. 1888; is a violation of appellants' first and fifth amendment rights; and is arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. Sec. 702 (1982). Appellants further seek an order enjoining AID's implementation of the Policy.

On cross-motions to dismiss, converted to summary judgment motions, the district court granted summary judgment for AID, finding that the NGOs lacked standing because they could not show injury in fact or that a decision in their favor would redound to their benefit. In a footnote, the court also concluded that even if plaintiffs had standing they would not be able to pursue their case because it presents a political question. 630 F.Supp. 238 (D.C.1986).

As an initial point, we reject the district court's suggestion that appellants' challenges to AID's actions present nonjusticiable political questions. This court recently held that whereas attacks on foreign policymaking are nonjusticiable, claims alleging non-compliance with the law are justiciable, even though the limited review that the court undertakes may have an effect on foreign affairs. Population Institute v. McPherson, 797 F.2d 1062, 1068-70 (D.C.Cir.1986) (holding that challenge to AID Administrator's determination of eligibility for AID funds under the Continuing Appropriations Act, 1985, did not constitute a nonjusticiable political question). Appellants do not seek to litigate the political and social wisdom of AID's foreign policy. They challenge the legality of AID's implementation of the Policy. We thus hold that the issues presented in appellants' complaint are not nonjusticiable political questions.

Appellants' standing to prosecute their action poses more difficult questions. Appellants have been engaged in family planning services abroad, both individually and jointly, for several years. They seek AID funding for a project that they jointly undertook to develop a family planning program in India. Appellants allege that, as a result of the Policy, they have been denied the opportunity to compete for AID funding because, with their own funds in programs unrelated to AID, they engage in certain voluntary abortion services. But none of the appellant NGOs has either applied to AID directly for funds or been rejected for AID funding. Thus, this case requires us to apply the rules governing when a "non-applicant" has standing to challenge eligibility criteria.

The Supreme Court has recognized that otherwise qualified non-applicants may have standing to challenge a disqualifying statute or regulation. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S....

To continue reading

Request your trial
40 cases
  • Lamont v. Woods
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 26, 1991
    ...challenge to the legality of that method did not present a nonjusticiable political question. Id.; accord DKT Mem. Fund, Ltd. v. AID, 810 F.2d 1236, 1238 (D.C.Cir.1987). 4 Here as in Planned Parenthood, appellees do not seek to adjudicate the lawfulness or political wisdom of the government......
  • DKT Memorial Fund Ltd. v. Agency for Intern. Development
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • October 10, 1989
    ...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......
  • Saget v. Trump
    • United States
    • U.S. District Court — Eastern District of New York
    • April 11, 2019
    ... ... Departure from Agency Practices ... 354 ii. Improper Political ... -based violence in IDP camps, the development of informal, hazardous settlements, the impact of ... 814, 28 L.Ed.2d 136 (1971) ; James Madison Ltd. by Hecht v. Ludwig , 82 F.3d 1085, 1095 (D.C ... Def. Fund, Inc. v. Costle , 657 F.2d 274, 284 (D.C. Cir ... ...
  • International Labor Rights Educ. and Research Fund v. Bush
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • January 31, 1992
    ...because our decision may have significant political overtones." Id. at 230, 106 S.Ct. at 2866. In DKT Memorial Fund Ltd. v. Agency for International Development, 810 F.2d 1236 (D.C.Cir.1987), similarly, the question was whether the Agency for International Development's implementation of a ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT