DKT Memorial Fund v. Agency for Intern. Development
| Decision Date | 07 March 1986 |
| Docket Number | Civ. A. No. 85-1668. |
| Parties | DKT MEMORIAL FUND LTD., et al., Plaintiffs, v. AGENCY FOR INTERNATIONAL DEVELOPMENT, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Richard A. Frank, Michael E. Fine, Pamela S. Krop, Wald, Harkrader & Ross, Washington, D.C., for plaintiffs.
Neil Koslowe, Civ. Div., Dept. of Justice, Washington, D.C., for defendants.
Congressman Bill Green, Congressman Peter H. Kostmayer, House of Representatives, Washington, D.C., Dr. Sharon L. Camp, Vice President for Policy, Population Crisis Committee, Washington, D.C., amicus curiae in Support of Plaintiffs' Motion for Summary Judgment.
This is an action for injunctive and declaratory relief brought by three not-for-profit, nongovernmental organizations challenging the lawfulness and constitutionality of a policy of the Agency for International Development ("AID"). Under that policy, foreign nongovernmental organizations ("NGO's") that wish to receive U.S. population planning funds must certify to AID that they do not perform or promote activities relating to voluntary abortion as a method of family planning. Domestic NGO's are not required to make such a certification. Instead, they must agree in their grant contract that they will not sub-grant any U.S. funds they receive to foreign NGO's that perform or promote abortion activities in foreign countries as a method of family planning.
Before the Court are cross-motions for summary judgment.1 For the reasons set forth below, the Court grants defendants' motion on the grounds that plaintiffs lack standing to bring this suit.
Plaintiff DKT Memorial Fund Ltd. ("DKT") is a nonprofit, nongovernmental organization which finances and collaborates with other organizations, including plaintiffs Parivar Seva Sanstha ("PSS"), and Population Services Family Planning Programmes Ltd. ("PSFP"), in various family planning programs. DKT is incorporated under the laws of New York.
PSS is registered as a nonprofit society under the Societies Registration Act of India and has been involved in family planning in India since 1978. PSS operates nine family planning clinics in India, each of which provides a comprehensive range of family planning services including abortion.
PSFP is a nonprofit charity registered in the United Kingdom and a member of the International Council of Voluntary Agencies. PSFP provides technical assistance in the operation of comprehensive family planning clinics around the world. PSFP also engages in certain activities relating to voluntary abortion.
Plaintiffs have contracted jointly to carry out family planning projects, including a four-year comprehensive family planning project in the rural districts of Uttar Pradesh, India (the "Uttar Pradesh project"). The Uttar Pradesh project, which is designed to complement the Indian Government's rural family planning efforts in these areas, would put educators and mobile medical teams into the field in each district to provide comprehensive family planning services. This venture will not provide, or otherwise involve, abortion services or involuntary sterilization. DKT has agreed to serve as the project manager; PSS will act as the implementing agency; and PSFP will provide technical assistance.
Under the Foreign Assistance Act ("FAA") of 1961, as amended, 22 U.S.C. §§ 2151 et seq., the President "is authorized to furnish assistance, on such terms and conditions as he may determine, for voluntary population planning." 22 U.S.C. § 2151b(b). The President has delegated the functions and allocation of funds authorized by 22 U.S.C. § 2151b to the Director of the United States International Development and Cooperation Agency, with certain exceptions, pursuant to Executive Order No. 12163, 44 Fed.Reg. 56673 (1979). The Director of the United States International Development and Cooperation Agency, in turn, delegated that authority to the Director of AID. IDCA Delegation No. 1, 44 Fed.Reg. 57521 (1979), as amended, 45 Fed. Reg. 74090 (1980).
AID provides funds under 22 U.S.C. § 2151b through family planning grants and cooperative agreements to international agencies, foreign governments, foreign and domestic NGO's. In order to receive family planning funds, a potential grantee must be a single entity, it must submit a written application, and it must be prepared to comply with grant or agreement conditions. AID evaluates applications for funds under a variety of criteria, many of which are set forth in a publication known as "AID Handbook 13 (Grants)." Affidavit of John F. Owens, Associate Assistant to the Administrator for Management of AID ("Owens Affidavit") ¶¶ 2-4.
An AID grantee may subgrant the funds it receives to other organizations. AID generally requires that applicants for funds identify principal subrecipients in their applications, or that the grant or cooperative agreement include eligibility criteria for the selection of subrecipients by the grantee and that the subgrant proposal be submitted to AID for review and approval. Id. ¶ 5.
At an international conference on population issues held in Mexico City in August 1984, the United States presented a policy statement previously issued by the White House on U.S. funding of voluntary population programs.2 The statement, formally referred to as the 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 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:
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, revising portions of AID Handbook 13 (Grants), were designed to implement the policy standards. The most recent version of these standards was circulated to AID contracting officers on June 21, 1985. See AID Memorandum For All Contracting Officers, June 21, 1985, Subject: Family Planning Assistance Policy ("June 21, 1985, Memo"). These amended standards form the gravamen of plaintiffs' complaint.
The June 21, 1985, Memo requires, inter alia, foreign NGO's to certify that they "do 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 NGO that conducts such activities." June 21, 1985, Memo at 2-3. Domestic NGO's are not required to make this certification. Instead, domestic NGO's are required to agree in their grant agreements that they "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." Id.
Plaintiffs contend that these revised standards not only conflict with the statutory scheme established by Congress in the FAA, 22 U.S.C. §§ 2151 et seq., but also contradict important congressional policies. Besides denying them due process of law, plaintiffs argue further that the requirements contained in the June 21, 1985, Memo are arbitrary and capricious.
None of the plaintiffs has ever applied to AID for a family planning grant. See Plaintiffs' Responses to Requests for Admission, September 13, 1985, ¶ 7. Furthermore, none of the plaintiffs has ever been denied AID family planning grant or been declared ineligible for AID assistance by any AID official authorized to take such actions. See Owens Affidavit ¶ 6; Affidavit of Stephen W. Sinding ¶¶ 1-7.
PSS applied in January of 1983 to the Indian Government for a subgrant under India's Private Voluntary Organization for Health Project (the "Project"). For purposes of clarification, PSS's request can in no way be considered an application to AID.
AID's involvement in the Project dates to an August 31, 1981, grant agreement under which the United States provided funding to the Project. Under the terms of the grant agreement, the Special Grants Committee in India's Ministry of Health and Family Welfare has overall management responsibility for the Project, has overall financial responsibility for the grant funds, and approves or rejects all applications by private Indian organizations for subgrants of funds. The Special Grants Committee is assisted by a Secretariat, an administrative body in India's Ministry of Health and Family Welfare, whose function is to screen applications for subgrants, to evaluate jointly the applications with the AID mission in India, and to inform applicants about the disposition of their applications.
The AID mission in India reviewed PSS's application, and on February 12, 1985, its deputy director advised the undersecretary of India's Ministry of Health and Family Welfare, K.L. Bhatia, that AID could not support it. Letter from Richard Brown, deputy director of AID mission, to Bhatia. On June 18, 1985, Bhatia informed PSS ...
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DKT Memorial Fund Ltd. v. Agency for Intern. Development
...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 question......
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DKT Memorial Fund Ltd. v. AGENCY FOR INTERN. DEV.
...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 ......
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DKT Memorial Fund, Ltd. v. Agency for Intern. Development, 86-5250
...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......