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November 23, 1984

THE 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, against 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.

The opinion of the court was delivered by: HAIGHT


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 reporductive rights." (Complaint, P31).

 CRB's awareness of Perspectives" attitude towards abortion was, of course, not entirely hidden; the memorandum accuses Perespectives 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 thata 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, "[r]eviewability and the scope of review are two separate questions." National Association of Postal Supervisors v. United States Postal Service, 195 U.S. App. D.C. 242, 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, 76 L. Ed. 598, 52 S. Ct. 285 (1932); Grace Towers Tenants Association v. Grace Housing Development Fund Co., 538 F.2d 491, 496 (2d Cir. 1976); WWHT, Inc. v. FCC, 211 U.S. App. D.C. 218, 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, 464 U.S. 914, 104 S. Ct. 276, 78 L. Ed. 2d 256 (1983). At this point, however, guaranteed review ends. Courts can always inquire as to whether an agency's reasons for acting were unconstitutional or in clear violation of a statutory mandate; they are not universally free to ask whether those reasons were wise, rational, relevant or supported by the available evidence. The right to this type of review must be secured by statute.

 It is this latter "thorough, probing, in-depth review," as Justice Marshall termed it in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971), which is provided for by the APA. Those aggrieved by an agency decision may invoke APA review unless the decision in question falls within one of two express exceptions: review is expressly prohibited by statute or the decision in question is one "committed to agency discretion by law." 5 U.S.C. §§ 701(a)(1) and (2), 702. The latter provision, however, does not preclude review of all discretionary agency decisions. Congress apparently intended review of agency discretion in some circumstances, for 5 U.S.C. § 706(2)(A) directs courts to set aside agency abuses of discretion.

 The tension between these two sections has not gone unnoticed. As Judge Friendly has written, the § 701(a)(2) exception, taken literally, threatens to "swallow a much larger portion of the general rule of reviewability than Congress could have intended, particularly in light of 5 U.S.C. § 706(2)(A). . . ." Langevin v. Chenango Court, Inc., 447 F.2d 296, 302 (2d Cir. 1971).Of course, the same can be said of § 706(2)(A): taking it literally threatens to eliminate § 701(a)(2) by opening all discretionary exercises of power to review. Courts have struggled to find the balance which Congress presumably intended.The Second Circuit's most recent attempt at blending § 701(a)(2) and § 706(2)(A) resulted in this formulation: "judicial review is the rule, and preclusion under section 701(a)(1) and (2) the exception; but if clear and convincing evidence can be shown that Congress intended to make an agency action unreviewable, then the courts are without jurisdiction." New York Racing Association, supra, 708 F.2d at 51. Divination of Congressional intent begins with the language of the statute authorizing the agency action. This initial stage of the inquiry focuses on whether the statute is drafted so broadly that there are no standards against which to measure the agency's action or, conversely, wahether a detailed statutory scheme plainly permits review. New York Racing Association, supra, 708 F.2d at 50-51; see Overton Park, supra, 402 U.S. at 410. If the statute is not either conclusively broad or detailed, a number of other factors bearing on Congressional intent must be examined. New York Racing Association, supra, 708 F.2d at 51.

 The government contends that the plain language of the FAA and its statutory history demonstrate conclusively that Congress intended to foreclose APA review of AID funding decisions. The paradigm of a statute vesting unreviewable discretion in a government agency arose in Greater New York Hospital Association v. Mathews, 536 F.2d 494 (2d Cir. 1976), in which the Second Circuit refused to accord APA review to a rule governing timing of Medicare payments. The rule was promulgated under a statute which permitted the agency to pay "at such time or times as the Secretary believes appropriate (but not less often than monthly)." 536 F.2d at 498. The broad language, containing virtually no standarads which could govern the exercise of agency discretion, was held to foreclose APA review. In comparison, AID funding for grants related to family planning is distributed under 22 U.S.C. § 2151b(b), which reads:

 (b) Assitance for voluntary population planning

 In order to increase the oportunities and motivation for family planning and to reduce the rate of population growth, the President is authorized to furnish assistance, on such terms and conditions as he may determine, for voluntary population planning. In addition to the provision of family planning information and services, including also information and services which relate to and support natural family planning methods, and the conduct of directly relevant demographic research, population planning programs shall emphasize motivation for small families.

 As the government is quick to point out, the only language which guides the expenditure of funds under this subsection is "on such terms and conditions as [the President] may determine." This is functionally identical to the language in the statute in Greater New York: "as the Secretary believes appropriate." If this is the only language guiding the agency's behavior, there is plainly no law to apply. Greater New York is controlling.

 Plaintiffs, however, point to 22 U.S.C. § 2151b(d), which they argue suplies standards against which AID's exercise of discretion may be reviewed. *fn1" That section provides:

 (d) Administration of assistance

 (1) Assistance under this part shall be administered so as to give particular attention to the interrelationship between (A) population growth, and (B) development and overall improvement in living standards in developing countries, and to the impact of all programs, projects, and activities on population growth. All appropriate activities proposed for financing under this part shall be designed to build motivation for smaller families through modification of economic and social conditions supportive of the desire for large familites, in programs such as education in and out of school, nutrition, disease control, maternal and child health services, improvements in the status and employment of women, agricultural production, rural development, and assistance to the urban poor, and through community-based developmenet programs which give recognition to people motivated to limit the size of their families. Population planning programs shall be coordinated with other programs aimed at reducing the infant mortality rate, providing better nutrition for pregnant women and infants, and raising the standarad of living of the poor. . . .

 (3) Assistance provided under this section shall emphasize low-cost integrated delivery systems for health, nutrition, and family planning for the poorest people, with particular attention to the needs of mothers and young children, using paramedical and auxiliary medical personnel, clinics and health posts, commercial distribution systems, and other modes of community outreach.

 Plaintiffs also cite 22 U.S.C. § 2151b(f)(1) and (3), which specifically prohibit the use of § 2151b(b) funds to pay for abortions ...

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