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June 20, 1985

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.; and SAMUEL PRESTON, Ph.D., Plaintiffs, against M. PETER McPHERSON, Administrator of the Agency for International Development (AID) and Director of the International Development Cooperation [sic] 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 of 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:

As originally filed, this action challenged the decision of the Agency for International Development ("AID") not to renew a funding grant for a journal, International Family Planning Perspectives ("Perspectives"), published by plaintiff The Alan Guttmacher Institute ("the Institute"). In a Memorandum Opinion and Order of November 27, 1984, reported as Alan Guttmacher Institute v. McPherson, 597 F. Supp. 1530 (S.D.N.Y. 1984) ("Guttmacher I "), I dismissed some of the Institute's claims for relief and all of those of the individual plaintiffs. Defendants now move pursuant to Rules 12(b)(1) and (6), Fed.R.Civ.P., for dismissal of all remaining claims. The Institute, the remaining plaintiff, cross-moves under Rule 15(a), Fed.R.Civ.P., to amend its complaint to add a constitutional challenge to certain amendments of the Foreign Assistance Act of 1961 ("FAA"), the Act under which the Perspectives funding was originally provided.

 Factual Background

 A full exposition of the allegations in the original complaint is provided in Guttmacher I, 597 F. Supp. at 1532-1533. For clarity I will summarize the claims here.

 From 1974 through early 1983, Perspectives, a journal publishing articles and information in the field of international population control and family planning, received substantial funding from AID. In December, 1982, the Communications Review Board ("CRB") of AID announced the results of a review of the funding of Perspectives. The review was undertaken pursuant to a directive issued by defendant David Stockman, head of the administration's Office of Management and Budget ("OMB"). The directive, OMB Bulletin No. 81-16, instructed federal agencies to review the content of federally-funded publications and to eliminate those found duplicative and wasteful. In a section on implementing the directive, it was suggested that one factor which the agencies could consider in deciding whether a publication's funding was wasteful was whether the publication "reflects agency and Administration goals and priorities."

 CRB found Perspectives unnecessary and recommended termination of its AID grant. CRB's recommendation, according to an AID memorandum, turned upon findings that Perspectives was economically unjustified and that two articles it had published could be construed as advocating abortion. The recommendation was accepted.

 Plaintiff alleges that both of these findings are false and pretextual. It alleges that funding for Perspectives was actually denied in an effort to suppress the publication of neutral information about abortion and to punish the Institute for its activities concerning abortion in fora other than Perspectives. Five causes of action were asserted in the original complaint, of which three remain:

 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 FAA.

 Plaintiff seeks, inter alia, a declaration that certain AID policies are unlawful and an injunction securing lawful consideration of the Perspectives grant request.

 Following the Guttmacher I decision, the government offered to settle this action by conducting a second CRB review of Perspectives. In order to avoid plaintiff's objections to the initial review, the government offered not to consider in making its decision either the Institute's activities outside Perspectives or the two articles which caused CRB to accuse Perspectives of advocating abortion. Because plaintiff rejected the offer, defendants now move for dismissal, claiming that their willingness to agree to this relief moots the action. Alternatively, they contend that the second and third causes of action should be dismissed for failure to state a claim on which relief may be granted. As noted, plaintiff cross-moves to amend its complaint to assert a new cause of action.

 I shall first deal with the government's motion to dismiss the three surviving causes of action from the original complaint. The proposed amended complaint is considered separately.


 The government has agreed to have CRB reconsider the Perspectives grant. In order to eliminate the possibility that CRB's decision will be tainted by a motive to suppress other activities of the Institute, under the proposal CRB will not be permitted to take these activities into account in reevaluating Perspectives. In addition, in reviewing the acceptability of the journal's content, CRB proposes not to consider the two articles which it found objectionable because of their approach to abortion. *fn1" The government argues that because this reconsideration constitutes all of the relief which the Institute could secure after a trial on the merits, its willingness to consent to the relief moots the action.

 The doctrine of mootness grows out of the constitutional limitation of the power of the federal courts to "Cases" and "Controversies." U.S. Const. art. III, § 2; Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 104 S. Ct. 373, 374, 78 L. Ed. 2d 58 (1983) (per curiam). Article III restricts federal court jurisdiction to those cases which present a dispute which admits of relief which would have a present impact on the legal relations of the parties. The contrast is with cases which present a hypothetical conflict which, while perhaps foreseeable, has not yet become imminent. Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298, 60 L. Ed. 2d 895, 99 S. Ct. 2301 (1979).

 It is clear that a present controversy existed at the inception of this action. Defendants contend, however, that by offering to grant plaintiff all of the relief to which it is entitled they have mooted the action. In theory, they are correct. If a defendant consents to entry of a judgment embodying all of the relief to which a plaintiff is entitled, it is hard to imagine how a justiciable controversy remains. Whatever conflict the plaintiff might continue to perceive will be conflict as to which the court can render no effective, present relief. See Iron Arrow Society, supra, 104 S. Ct. at 375. Nor does plaintiff contest this general principle of law; rather, the Institute argues that it is entitled to greater relief than that which has been offered by defendants.

 This objection, however, does not apply to all claims. Plaintiff does not appear to contest that defendants' offer would constitute the whole of the relief to which it is entitled under the first cause of action, which alleges retaliation for Institute activities in other fora. Defendants concede that had they in fact had retaliatory motives, they would have acted unlawfully. Upon proving retaliation, however, plaintiff would not have been entitled to an immediate award of grant money but, at least in the first instance, only a fair non-retaliatory consideration of its request by CRB. See Guttmacher I, 597 F. Supp. at 1543. This is what CRB is offering, and the government's consent to such relief would moot litigation of this cause of action.

 The second and third causes of action stand on a different footing. Both allege that Perspectives was denied funding because it published neutral information on the incident, extent, and consequences of abortion. The second cause of action asserts that this violated the First and Fifth Amendments to the Constitution; the third asserts that it violated the FAA. Defendants have not acknowledged that such actions would be unlawful, as they have regarding the behavior alleged in the first cause of action, nor have they consented not to engage in the practice. Instead they have offered not to consider the specific articles to which CRB raised objections during the 1982 review. It presumably has not escaped defendants' notice that this offer leaves them free to consider any similar articles Perspectives may have published before or since that time.

 Defendants claim that the principal issue presented by the second and third causes of action is whether the [two articles] advocated abortion, as CRB claimed in its review. If the issue were so restricted, defendants' offer might moot the claims. It is not. Plaintiff's factual claim is not simply that defendants mistook these neutral articles as advocacy. It is that defendants recognized this neutrality and intentionally terminated the funding because they wished to prevent the dissemination of non-pejorative information regarding abortion. If the factual claim is proven, it must then be determined, under plaintiff's theory, whether the refusal to fund for that reason was lawful. Plaintiff seeks to prevail on both its factual and legal claims, not only to regain the funding it has lost, but to assure itself that future non-pejorative discussions of abortion will not place future funding in jeopardy.

 This discussion makes it clear that defendants have not offered sufficiently complete present relief to moot plaintiff's claims. Although defendants offer not to consider the two past articles pinpointed by CRB as supporting the allegations of advocacy in its review, they have not disavowed the alleged underlying policy of defunding on the basis of the publication of neutral information about abortion. Pursuant to their proffered agreement, they could consider other similar articles and refuse to renew the grant for the same allegedly unlawful reason following the second review. Not only is this a result which would not occur if plaintiff prevailed on the merits of its second or third causes of action, it is the ...

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