Appeal from a judgment of the District Court for the Southern District of New York (Charles S. Haight, Jr., Judge) requiring reconsideration of an application for funding by the Agency for International Development for the private publication of a scientific journal; funding had been denied because two articles were construed as advocating abortion. Affirmed as modified. Judge Mansfield dissents with a separate opinion.
Before: MANSFIELD, NEWMAN, and CARDAMONE, Circuit Judges.
JON O. NEWMAN, Circuit Judge
This appeal from a judgment of the District Court for the Southern District of New York (Charles S. Haight, Jr., Judge) concerns a challenge to the denial of public funding by the Agency for International Development (AID) for the private publication of a scientific journal. Funding was denied partly because the journal included two articles that were construed by AID personnel as advocating abortion. The lawsuit ended with the entry of a judgment, consented to by the defendants, that requires reconsideration of the funding decision without regard to the two questioned articles and articles "like them." The plaintiff contends that the judgment is deficient because it fails to determine that the denial of funding constituted a violation of the First Amendment and because the plaintiff was denied leave to amend its complaint to include a challenge to the constitutionality of a provision of the Foreign Assistance Act. Though the judgment, and the circumstances leading to its entry, are somewhat unusual, we conclude that, with a slight modification, it should be affirmed.
Plaintiff-appellant, The Alan Guttmacher Institute, publishes International Family Planning Perspectives ("Perspectives"), a quarterly journal distributed in the United States and developing countries to a readership of more than 23,000 professionals in the field of international population and family planning. The Institute has received funding for publication of Perspectives from AID pursuant to the Foreign Assistance Act (FAA), 22 U.S.C. § 2151 et seq. (1982). In 1982 the Institute applied to AID for 1983 funding. The grant application was considered by AID's Communications Review Board (CRB), after approval had been recommended by AID's Office of Population. The CRB denied the grant application for several reasons, including "exorbitant" publication costs, the fact that less than half the countries in which Perspectives is distributed are recipients of United States foreign aid, and the fact that an estimated 50% of the magazines' intended audience cannot read Perspectives, which is published only in English.
The statement of reason for denying the grant also included a ground that has given rise to this litigation - the inclusion of articles that the CRB viewed as "more than subtle attempts to proselytize on the merits of legalizing abortions in [less developed countries]." Ultimately, two articles were identified. One, entitled "Blame Illegal Abortion for 26% of Pregnancy Mortality in Bangladesh," is a digest of a study of pregnancy-related deaths in that country. The article reports a maternal death rate of 3.4 per 100,000 women and an abortion mortality rate of 1.9 per 100,000 women. It also reports that eight of ten abortion-related deaths could have been prevented if medically approved procedures had been used. The other, entitled "The Delivery and Use of Contraceptive Services in Rural Tunisia," reports that abortion in the first trimester was legalized in that country in 1973. There is no other mention of abortion in the article.
AID's Bureau of Science and Technology appealed the CRB funding decision to AID's director, M. Peter McPherson. The matter of funding Perspectives attracted political interest, with at least one Senator and one Congressman writing McPherson to urge denial of the grant application. McPherson upheld the CRB's denial, and the Institute brought this suit.
The complaint alleged five causes of action. First, the Institute contended that the denial of funding violated the First Amendment because it was based on pro-abortion views expressed by the Institute elsewhere than in Perspectives. Second, and central to this appeal, the denial was alleged to violate the First and Fifth Amendments because AID's decision was motivated by the accurate reporting of information in Perspectives. Third, the denial was alleged to violate the FAA, which the Institute contended affirmatively permitted funding the publication of articles that contained information about the use and incidence of abortion and that were neutral, i.e., neither favored nor opposed abortion. Fourth, the denial was alleged to violate the Due Process Clause because the decision not to renew funding was not preceded by a hearing. Fifth, the denial was alleged to be arbitrary agency action in violation of the Administrative Procedure Act (APA).
In his first encounter with the Institute's claims, Judge Haight dismissed the fourth cause of action for lack of a protected property interest and dismissed the fifth cause of action on the ground that AID's funding decision are "committed to agency discretion by law," 5 U.S.C. § 701(a)(2), and therefore not subject to judicial review under the APA. 597 F. Supp. 1530, 1534-37 (S.D.N.Y. 1984). The District Judge also dismissed the claims of the individual plaintiffs (several scientists in the field of population research) and dismissed the Secretary of State as a defendant. Judge Haight upheld the Government's contention that sovereign immunity barred the Institute from securing affirmative injunctive relief, as distinguished from relief that would require AID to reconsider the funding decision without regard to allegedly unlawful considerations. This ruling, though not striking any particular provisions of the prayer for relief, presumably rejected that portion of the prayer seeking an order reconstituting the CRB. Also with respect to relief, the District Court rejected the Government's contention that the suit sought money in excess of $10,000 and was within the exclusive jurisdiction of the Claims Court under the Tucker Act, 28 U.S.C. §§ 1346(a)(2), 1491 (1982). Judge Haight understood the complaint to seek money "through administrative procedures so long as those procedures are lawful," 597 F. Supp. at 1543, and to request the court to order AID to make a grant award "only if fair and lawful consideration of the funding request proves impossible to secure." Id. Since a court order directing an award of money was not the "primary objective" of the plaintiff's suit, Judge Haight determined that the suit was not within the exclusive jurisdiction of the Claims Court. See B.K. Instrument, Inc. v. United States, 715 F.2d 713, 727 (2d Cir. 1983). Finally, the District Judge rejected the Government's contention that the suit was moot because the grant year had ended.
Thereafter, the Government informed the District Court of AID's willingness to reconsider the Institute's grant application without giving any consideration either to any of the Institute's activities other than the publication of Perspectives or to the two articles that had been initially viewed by the CRB as advocating abortion. In light of this concession, the Government renewed its motion to dismiss.
In his second ruling, 616 F. Supp. 195 (S.D.N.Y. 1985), Judge Haight first considered whether AID's offer mooted the Institute's first and second causes of action. He properly noted that voluntary cessation by a defendant of challenged conduct alleged to be unlawful will not moot a lawsuit unless "'there is no reasonable expectation that the wrong will be repeated.'" United States v. W.T. Grant Co., 345 U.S. 629, 633, 97 L. Ed. 1303, 73 S. Ct. 894 (1953) (quoting United States v. Aluminum Co. of America, 148 F.2d 416, 448, 65 U.S.P.Q. (BNA) 6 (2d Cir. 1945)). Then, without any explicit consideration of whether it was reasonable to expect AID to repeat the wrong alleged in the first cause of action - denial of funding because of views expressed other than in Perspectives, Judge Haight concluded that AID's changed position mooted this cause of action.
Turning to the second cause of action - denial of funding because of the two articles in Perspectives mentioning abortion, Judge Haight concluded that AID's offer, as initially made, did not moot this claim. Reconsideration of the grant application without regard to the two questioned articles was deemed inadequate. "Plainly if defendants could moot a challenge to their alleged policy [of inhibiting publication of pro-abortion articles] simply by agreeing to ignore whatever articles they relied on previously, they could apply the policy endlessly on the basis of new articles, yet perennially avoid a decision on its legality." 616 F. Supp. at 200. Judge Haight then suggested how the AID offer could be broadened to moot the second cause of action. AID would have to reconsider the grant application without consideration of Perspective's inclusion of "neutral" articles on abortion and would have to concede that the two questioned articles were "neutral" on abortion, id. at 206; reconsideration would have to disregard these two articles and other articles "like them," id.
Judge Haight then considered whether the second cause of action stated a claim on which relief could be granted. In a thoughtful analysis, he identified the two contending principles pertinent to the Institute's claim. On the one hand, the Government may fix the terms on which it distributes money, and, in some circumstances, may set conditions that restrict activity protected by the First Amendment. See Oklahoma v. United States Civil Service Commission, 330 U.S. 127, 91 L. Ed. 794, 67 S. Ct. 544 (1947) (upholding constitutionality of Hatch Act). On the other hand, in many circumstances, the Government may not penalize the exercise of First Amendment rights by denying benefits, even though the claimant has no right to the benefit. See Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972) (non-tenured teacher may not be denied employment for free speech activity). Judge Haight sought to harmonize these competing principles by insisting on advance notice of categories of expression that would result in denial of funding. In his view, denial of funding would pass constitutional muster only if the finder announced in advance the restrictions on speech on which it proposed to condition receipt of public funds. Such advance notice would afford grant applicants an opportunity to comply with the restriction or challenge it judicially, rather than be penalized after the fact for expression of views they thought could be aired without adverse consequence. Applying this approach to the Institute's claim, Judge Haight ruled that no current AID regulation conditions subsidies on refraining form publication of neutral articles on abortion. If Judge Haight's constitutional analysis is correct (a matter we do ...