permitting a great number of local volunteer health and welfare agencies to participate in the Combined Federal Campaign without unduly burdening the normal operations of the federal government.
The third issue to be decided is whether plaintiff was denied due process when Chairman Hampton refused to grant a hearing at which plaintiff's representatives could cross-examine the representatives of UGF and HWC from whom the Chairman had sought information concerning the charges of racial discrimination. There is no case directly on point as to the precise requirements of due process in a like situation; the closest would seem to be Cafeteria & Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1961), which involved the summary exclusion of a cook from a privately operated cafeteria located at a military installation. The court found that, in the circumstances of that case, due process did not require a hearing on the exclusion, which had been ordered by the Admiral in command at the installation. It noted as one of the factors influencing its decision that the governmental function involved was that of a proprietor. Although the instant case does not involve national security considerations, it does concern an essentially proprietary function of the government. Chairman Hampton, acting on behalf of the government, has sought to make arrangements for charitable solicitations among federal employees which would keep interruptions of normal government operations to a minimum and limit the administrative burden on the government (Hampton affidavit, 2 and 3). In addition, Cafeteria Workers is analogous to the instant case insofar as there is no claim that plaintiff was denied the privilege it sought on "patently arbitrary or discriminatory grounds" such as plaintiff's religious or political affiliations. Id., 898.
There are, however, at least two important differences between Cafeteria Workers and the instant case which support the view that the plaintiff United Black Fund was not denied due process. First, the petitioner in Cafeteria Workers was denied even the opportunity for a meeting with the person responsible for her exclusion. Here, representatives of the plaintiff were given the opportunity to present their position to Chairman Hampton in person. After investigating the various allegations made to him, the Chairman informed them of the results of his investigation and his reasons for refusing to reconsider his original decision. Second, the petitioner in Cafeteria Workers was deprived of an existing interest, i.e., her employment at the installation in question. Plaintiff here has been deprived of no existing interest but only of benefits it hoped it might acquire.
It should also be pointed out again that it is not participation in the Combined Federal Campaign by plaintiff and the agencies it funds which is sought here; rather, it is the opportunity to solicit funds in government offices and installations on the terms demanded by plaintiff.
Considering these circumstances, i.e., the proprietary nature of the governmental action involved here, the nature of the plaintiff's interest, and the extent to which plaintiff was allowed to present its case to Chairman Hampton, the Court finds that plaintiff was not denied due process when the Chairman refused to grant an adjudicative hearing on the plaintiff's request for reconsideration of his decision to deny solicitation privileges on the terms specified by plaintiff.
Finally, the Court must consider whether there was substantial evidence to support the Chairman's determination that the operations of UGF, which had been approved by United Way, were not in fact racially discriminatory.
The Court must look at the whole record which was before the Chairman in deciding whether his decision should be upheld. Universal Camera Corporation v. National Labor Relations Board, 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1951). According to affidavits filed by plaintiff herein (Rolark affidavits of Sept. 8, Sept. 25, and Sept. 30), and plaintiff's Statement of Material Facts as to Which There is No Genuine Issue, the meeting with Chairman Hampton on June 10, 1971, focused on allegations that United Way, UGF, and agencies such as the American Red Cross which benefited from the Campaign under United Way and UGF auspices were guilty of discriminatory practices and that there was an insufficient number of black persons on policy-making bodies within UGF and HWC. These conclusory charges were not factually documented. Chairman Hampton's affidavit and his letter of August 3, 1971, indicate that he did not take United Way's recognition of UGF as a "member in good standing" to be evidence that UGF was meeting federal nondiscrimination requirements but rather that he made direct requests to UGF and HWC officials for specific data as to the racial composition of policy-making bodies within these organizations and of the clientele served by agencies participating in the Combined Federal Campaign through UGF (Hampton affidavit, 8). The figures are substantial evidence that UGF and HWC accorded fair representation to both black and white communities in their policy-making bodies and that expenditures for services by agencies receiving UGF funding in fact benefited the black communities in the Washington Metropolitan area to a greater extent than a strict allocation according to population ratios would warrant. Plaintiff does not allege that it, at any time, supplied contrary figures to the Chairman. As for its complaints that exemptions from the Chairman's regulations had been granted to certain organizations, it failed to cite any instance in which a similarly situated organization, i.e., a federation of local health and welfare agencies, was granted any such exemption. Considering, then, both what plaintiff alleges it brought to the Chairman's attention by letter and at the June 10 meeting, and the data obtained by the Chairman from UGF and HWC, the Court finds that there was substantial evidence to support the Chairman's determination that plaintiff's discrimination charges were not sufficiently well-founded to warrant altering the arrangements for participation of local health and welfare agencies in the Washington Metropolitan area Combined Federal Campaign.
Therefore, on the basis of the pleadings and of the affidavits and exhibits filed in this action, it is by the Court this 24th day of November, 1972,
Ordered that summary judgment be, and the same hereby is, entered for the defendants on all counts alleged in the Complaint.