Nguyen Da Yen, Cross-Appellees v. Henry Kissinger, Secretary of State, Cross-Appellants

These are cross-appeals from a preliminary injunctive order over which we have jurisdiction under 28 U.S.C. § 1292 (a)(1). We heard the appeals on an expedited basis on August 14, 1975, and on that day affirmed the order, as we revised it. Because of temporal exigencies, we were unable to immediately explicate our rationale in a written opinion and were compelled to defer that matter to a later time. Having now had a decent opportunity to thoroughly study and consider the numerous and difficult issues, we conclude that our earlier order must be modified, and for the following reasons.

We think it fair to conclude that this is a unique lawsuit, responsive to a high ly unusual operation — the Vietnamese Orphan “Babylift.” During the waning hours of our involvement in Vietnam, as the fall of Saigon grew imminent, various agencies of the United States Government, in concert with private American adoption agencies, participated in an airlift to evacuate children from Vietnam. The airlift was apparently intended to remove only those children who were already in some stage of the requisite procedure for admission to the United States and adoption by American families- — i. e.,…