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08/12/86 Population Institute, v. M. Peter Mcpherson

August 12, 1986






Before we could hear the case on the merits, the Administrator issued a statement affirming his earlier decision to withhold funds from UNFPA but examining the statute with greater detail and in light of our decision granting the injunction. See Statement of M. Peter McPherson (Nov. 25, 1985). Because we believed that "the Administrator's November 25, 1985 statement has addressed the concerns expressed in this court's memorandum and order of November 13, 1985 granting the injunction pending appeal," we vacated our injunction. See Population Council v. McPherson, No. 85-6042, Order (D.C. Cir. Dec. 5, 1985). The matter has not been mooted by disbursement of the funds in question, however, and the case is now before us for decision on the merits. II. A.


Appeals from the United States District Court for the District of Columbia (Civil Action No. 85-03131). 1986.CDC.270


Mikva and Bork, Circuit Judges, and Greene,* District Judge. Opinion for the Court filed by Circuit Judge Mikva.


The Administrator of the Agency for International Development has withheld ten million dollars earmarked by Congress for the United Nations Fund for Population Activities . The Administrator determined that a statutory prohibition on funding "any organization . . . which . . . supports or participates in the management of a program of coercive abortion or involuntary sterilization" bars the UNFPA from receiving the earmarked funds. Appellant, Population Institute, has been a grantee of UNFPA; it filed suit in the United States District Court to enjoin the Administrator from withholding such funds.

The district court ultimately dismissed appellant's complaint. Because we find that the Administrator's determination to withhold earmarked funds was reasonable, the Administrator may disburse the withheld funds in accord with his decision to reprogram them. We disagree, however, with the district court's reasons for dismissal and accordingly vacate that decision and remand the case with instructions. I.

The Agency for International Development is part of the United States government and is charged with providing assistance for family planning and demographic projects abroad. See 22 U.S.C. § 2151b; Reorganization Plan No. 2 of 1979, 44 Fed. Reg. 41,165 (1979); Executive Order 12163, 44 Fed. Reg. 56,673 (1979). In October 1984, Congress appropriated $290 million to the AID for population planning programs. Foreign Assistance and Related Programs Appropriations Act of 1985, Pub. L. No. 98-473, 98 Stat. 1837, 1887 (1984) ("the Act"). The Act provided "that not less than $46 million, or 16 per centum of the amount appropriated, . . . whichever is lower shall be available to support the United Nations Fund for Population Activities." Id. The UNFPA uses the funds it receives from the AID to provide grants to foreign countries and private agencies engaged in population control activities. Appellants Population Council and Population Institute, both private entities, receive grants from the UNFPA and devote them to population planning and demographic programs in the People's Republic of China.

Congress restricted the availability of earmarked funds for population planning programs. The Act provided "that none of the funds appropriated under this paragraph may be available to any country [or organization] which includes as part of its population planning programs involuntary abortion." In July of 1985, a Supplemental Appropriations Act for fiscal year 1985, Pub. L. No. 99-88, 99 Stat. 293 (1985), amended the Act and imposed a new condition on the disbursement of funds appropriated for population planning. That amendment ("the amendment") provides that

none of the funds made available in this bill nor any unobligated balances from prior appropriations may be made available to any organization or program which, as determined by the President of the United States, supports or participates in the management of a program of coercive abortion or involuntary sterilization.

The new restrictions on population planning funds resulted from heated controversy in the Congress and the Executive. The People's Republic of China has a one-child-per-family policy. Some U.S. policymakers suspect that coerced abortions and involuntary sterilization play a part in enforcing this population control goal. Because of these suspicions, some members of the Administration and the Congress desire to end all funding for Chinese population control programs. Others doubt the reports of atrocities and coercive practices in China, and believe that China's programs should be supported by the United States.

On March 30, 1985, the Administrator of AID announced his determination to withhold $10 million from the UNFPA. AID News Release No. 0021 (Mar. 30, 1985). The Administrator did not, however, find that UNFPA violated the Act's proscription on funding an "organization which includes as part of its population planning programs involuntary abortion." See id. ; 131 Cong. Rec. S8526 (daily ed. June 20, 1985) (remarks of Senator Inouye). Indeed, the Administrator explained that "UNFPA neither funds abortions nor supports coercive family planning practices through its programs. However, . . . the practices in the family planning programs of [China] is [ sic ] such that any support for that country's programs is linked with and gives the appearance of condoning its practices." AID News Release No. 0021 at 1. The Administrator could not withhold the earmarked funds in question indefinitely without finding that the UNFPA had violated the statutory restriction. He therefore announced that he would seek to have Congress remove the earmark and grant him authority to reprogram the $10 million.

Accordingly, on May 17, 1985, the President wrote to the Speaker of the House and requested that the Congress reduce fiscal 1985 funds earmarked for UNFPA from $46 to $36 million. Congress rejected the request and retained the $46 million earmarked for UNFPA funding. However, in a supplemental appropriations bill, H.R. 2577, the House proposed to amend the statutory limitations on the obligation of population planning funds by adding the following language:

None of the funds made available in this bill nor any unobligated balances from prior appropriations may be made available to any organization or program which supports or participates in the management of a program of coercive abortion.

See 131 Cong. Rec. H4052 (daily ed. June 11, 1985). On June 12 the House passed H.R. 2577 with the above language. See 131 Cong. Rec. H4200-01 (daily ed. June 12, 1985). In additional views appended to the House Committee Report, Representative Kemp, sponsor of the new limitation, stated that "the United Nations Fund for Population Activities would be immediately affected by this amendment because of its involvement with the program of coercive abortion in the People's Republic of China." H.R. Rep. No. 99-142, 99th Cong. 1st Sess. at 232.

After passing the House, H.R. 2577 was introduced in the Senate and referred to the Appropriations Committee. 131 Cong. Rec. S8170 (daily ed. June 13, 1985). The Senate Committee added the "as determined by the President of the United States" clause to the House version of the amendment. This addition was proposed by Senator Daniel Inouye, an opponent of defunding UNFPA activities in China. In its report, the Senate Committee stated that it believed the House version of the amendment would have "the effect of prohibiting any further U.S. assistance in fiscal year 1985 to the . . . UNFPA." S. Rep. No. 99-82, 99th Cong., 1st Sess. at 107. The Inouye amendment was apparently designed to avoid this result. The Committee explained the addition of the Inouye amendment as follows:

The Committee finds that this issue is of such significance that the determination ought to be made by the President of the United States. The Committee recognizes that the President is empowered to delegate such responsibilities and would, in this particular instance, expect that the responsibility for making the required determination would, if delegated, be delegated only to the Secretary of State.

S. Rep. No. 99-82, 99th Cong., 1st Sess. at 107-08. The Senate Committee did not, however, include any specific language that affected the President's authority to delegate responsibility for making the determination. On June 20th the Senate passed the bill with both the Inouye amendment and a further amendment proposed by Senator Helms that added the words "or involuntary sterilization" to the provision. See 131 Cong. Rec. S8524-25 (daily ed. June 20, 1985); 131 Cong. Rec. S8587 (daily ed. June 20, 1985).

The Conference Committee accepted the Senate's amendments to H.R. 2577. See H.R. Rep. No. 99-236, 99th Cong., 1st Sess. at 53-54. The Committee reiterated the Senate Appropriations Committee's desire that the determination called for by the amendment be made by the President or the Secretary of State. The Conference Committee did not comment on the effect it believed the amendment would have on UNFPA funding. On August 15, 1985, the bill became law. Pub. L. 99-88, 99 Stat. 293.

On September 19th, the President delegated his authority to make the determination called for in the amendment to the Secretary of State. The President gave the Secretary full authority to redelegate the delegated authority. See Memorandum for the Secretary of State (Sept. 19, 1985); 3 U.S.C. § 301 (authorizing the President to make such delegations); 22 U.S.C. § 2381(a) ("The President may exercise any functions conferred upon him by this chapter through such agency or officer of the United States Government as he shall direct."). Pursuant to the President's express authorization of a redelegation, the Secretary of State delegated the authority to M. Peter McPherson, Administrator of the Aid and Acting Director of the International Development Cooperation Agency , the AID's parent agency. See Memorandum for the Secretary of State, supra ; 22 U.S.C. § 2381(a); Executive Order 12163, 44 Fed. Reg. 56,673 (1985).

On September 25, 1985, McPherson determined that $10 million of the $46 million earmarked for the UNFPA would not be "obligated for that purpose because . . . the UNFPA is participating in the management of a program of coercive abortion and involuntary sterilization in the People's Republic of China." Letter from M. Peter McPherson to the Honorable Mark O. Hatfield, Chairman of the Senate Committee on Appropriations at 1 (Sept. 25, 1985). By September 30th, the last day of fiscal year 1985, AID had reprogrammed the $10 million dollars withheld from the UNFPA.

On September 30, 1985, plaintiffs filed suit in the District Court for the District of Columbia to enjoin McPherson from withholding the $10 million from the UNFPA. The complaint alleged that the Administrator acted under an unlawful delegation of authority; that, because it resulted from a misinterpretation of the amendment, the Administrator's action was clearly erroneous; and that the Administrator's action was clearly arbitrary and capricious because there was no evidence that UNFPA was involved in any program of coercive abortion or involuntary sterilization. On the same day the complaint was filed the district court entered a temporary restraining order that enjoined the government from disbursing the $10 million. Plaintiffs subsequently sought a preliminary injunction and the defendants moved to dismiss.

On October 18, 1985, the district court granted the defendants' motion to dismiss. Population Institute v. McPherson, No. 85-3131, slip op. (D.D.C. Oct. 18, 1985). That same day plaintiffs filed a notice of appeal. On October 25th appellants moved this court for an injunction pending appeal prohibiting defendants from disbursing the funds in question to other recipients. We issued an opinion then that detailed the district court's opinion. Because that opinion was not published, it is reprinted as an appendix to this opinion. In brief, the district court concluded that the Population Institute had standing, that the controversy was not moot, that the President's delegation of authority to the Administrator was proper, but that the plaintiffs' challenges to the Administrator's action presented non-justiciable political questions. See Population Institute v. McPherson, No. 85-6042, Order at 6-9 (D.C. Cir. Nov. 13, 1985), reprinted infra.

On November 13, 1985, this court granted the Population Council's motion for an injunction pending appeal. See id. We concluded that appellants had shown a high likelihood of succeeding in their appeal, that they would be irreparably harmed by being deprived of the $10 million, that no third parties would suffer undue harm if we granted the injunction, and that the public has an interest in assuring that the funds were allocated as Congress intended. See id. [Slip op] at 9-18. Thus, injunctive relief was appropriate. See Cuomo v. United States Nuclear Regulatory Commission, 772 F.2d 972, 974 (D.C. Cir. 1985); Wisconsin Gas Co. v. Federal Energy Regulatory Commission, 244 U.S. App. D.C. 349, 758 F.2d 669, 673-74 (D.C. Cir. 1985) (per curiam).

In granting appellants' motion for an injunction we considered their arguments on the propriety of Administrator McPherson having made the determination at issue and on the reviewability and correctness of that determination as a matter of law. With respect to the delegation argument, we concluded that "it appears the district court decision was correct, [and that] appellant has failed to establish a likelihood of success on the . . . issue." See Order at 10-11. We thought, however, that the plaintiffs' chance of success in challenging the substance of the Administrator's determination were much better. We did not believe that the Administrator's determination would present a non-justiciable political question. Instead, the correctness of the Administrator's interpretation of the amendment appeared to be a simple question of statutory construction that a court was competent to examine. And our examination of the substantive reasonableness of his determination convinced us that there was a good probability the determination would not be upheld on appeal. See id. [Slip op] at 10-14.

We found that "McPherson's decision to bar further funding of UNFPA was . . . premised on his conviction that the statute, as interpreted by Representative Kemp, left him no alternative " but to withhold the funds. Id. at 1080 (emphasis in original).

Administrator McPherson seems to have misunderstood his role in interpreting the amendment. His role was clearly and emphatically to arrive at an interpretation which, in his opinion, best represented the whole Congress' understanding of the amendment. Yet, instead of trying to put the puzzle together by looking at all of the relevant factors, such as the language, committee reports, floor debate, and individual statements of the various senators and congressmen, the Administrator appears to have considered himself absolutely bound by the statements of Representative Kemp, the author of the amendment in the House.

Id. at 1080. In sum, we held that the Administrator cannot delegate his responsibility to interpret the will of Congress to a single member of Congress. Thus, because of the significant likelihood that plaintiffs would prevail on this issue on appeal, we granted an injunction pending appeal.

In granting the injunction, we emphasized that

it is not for the court to determine, even if Administrator McPherson had properly evaluated all of the evidence bearing on Congress' intent, he would have reached the same conclusion. The opportunity to reach a reasoned interpretation of the statute belongs to the President and his delegates. We hold only that there is a reasonable likelihood that appellant will succeed in demonstrating that the President's delegate committed legal error when he mistakenly assumed that he was compelled by law to apply the statutory interpretation advanced by the author of the statutory language. . . . The issue of whether coerced abortions occur in China is not before this court, and, indeed, may well present a non-justiciable question. . . . We have neither considered nor decided whether UNFPA participates in coercive practices in China. We have merely indicated that appellant is likely to succeed in a remand to the agency for reconsideration of the decision that UNFPA'S participation comes within the statutory ban.

Id. at 1081.

The appellants do not raise their improper-delegation argument on appeal and we do not address it. Accordingly, we leave undisturbed the decision of the district court that McPherson was authorized to make the determination called for by the amendment.


The Administrator claims that this case presents a non-justiciable political question. He contends that by reviewing his determination under the amendment, this court would impermissibly interfere with foreign affairs. The Administrator asserts that

everyone would agree that some kinds of "assistance" constitute "participation," while others do not; and one may posit a wide spectrum of factual situations, some clearly qualifying as "participation," some not, and some within the range of reasonable disagreement. . . . In the event the Court were to disagree with the Administrator's interpretation, the necessary result would be a remand requiring the Administrator to describe and discuss in greater detail those aspects of the factual situation which have special importance under the Court's reading of the statute. In taking this action, the Court's reading of the statute. In taking this action, the Court would inevitably intrude in important foreign policy concerns.

Brief for the Appellees at 12.

The district court also believed that the Administrator's determination was a non-justiciable political question. We disagree, as we did in our decision on the injunction pending appeal. The district court's conclusion followed from its belief that review of the Administrator's determination involved "resolution of the issue of the nature of China's population policy . . . ." Population Institute v. McPherson, No. 85-3131, slip op. at 18 (D.D.C. Oct. 18, 1985).

Both the district court and the Administrator take too narrow a view of the nature of the required determination. The correctness of the Administrator's determination involves more than a review of his conclusions about the nature of China's programs. In deciding to end UNFPA funding for activities in China, the Administrator assessed not only the situation in China, but also measured that situation against the amendment's strictures. That is, an essential part of the Administrator's determination under the amendment is an explanation of what exactly he believes the amendment requires him to determine. The question that is then presented for our review is whether the Administrator has arrived at the determination that he is required to make by statute with due regard for the intent of Congress in enacting that statute. Simply because the result of that determination will have an effect on international relations does not completely strip the courts of the power and duty to review the legislative interpretation that supports the decision. The judiciary is well situated to decide if the Administrator has relied upon a supportable interpretation of the amendment.

In reaching and deciding the question of whether the Administrator's interpretation of the amendment is reasonable, we need not consider the situation in China. The district court was probably correct to assert that "the Executive's characterization of China's population program is thus entitled to great deference. In fact, a judicial determination of the nature of China's population planning programs would involve 'the potentiality of embarrassment from multifarious pronouncements by various departments on one question.' Baker v. Carr, 369 U.S. 186, 217,

The Supreme Court has made clear that a court "must give effect to the unambiguously expressed intent of Congress." Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). If, however, Congress' purpose can not be so clearly divined and "the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843. If the agency charged with administering a statute has reasonably interpreted the statute, its interpretation must be upheld. In reviewing the Administrator's determination here we intend to do no more than assure that he has adopted a reasonable reading of the amendment.

When the Administrator first determined that the UNFPA could not continue to receive funds for use in China, he stated that

since the UNFPA provides assistance to the People's Republic of China in the general management areas described in Congressman Kemp's Additional Views to the Report accompanying the FY 1985 Supplemental Appropriations Act, and since we have concluded that sufficient evidence exists to indicate that implementation of the population program of the Government of the People's Republic of China results in such ...

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