The opinion of the court was delivered by: WADDY
In this action, plaintiff, a female veteran, seeks an order directing defendant Veterans of Foreign Wars of the United States (VFW), a corporation chartered by Act of Congress, 36 U.S.C. § 111 et seq., to reconsider her application for membership in said organization and enjoining defendant from barring her membership solely because she is a female. The bylaws of the VFW limits membership to men who meet the military service requirement, i.e., those having military service outside the United States entitling them to a recognized campaign medal. This membership limitation, plaintiff asserts, violates the equal protection guarantee in the due process clause of the 5th Amendment of the Constitution of the United States. Plaintiff further seeks compensatory and exemplary damages, counsel fees, and costs.
Plaintiff appealed the judgment. On June 19, 1974, the Court of Appeals for the District of Columbia Circuit, in an opinion reported at 500 F.2d 788, having found that plaintiff had not been given the opportunity to "present all material made pertinent to such a motion by Rule 56" as required by Rule 12(c) of the Federal Rules of Civil Procedure when a motion for judgment on the pleadings is treated as a motion for summary judgment, remanded this case for "proceedings not inconsistent" with its opinion.
Plaintiff's original motion for summary judgment was premised on two grounds, i.e., that (1) the membership clause of the corporate charter of the VFW limits membership in the organization to males, thereby unconstitutionally denying plaintiff equal protection, and (2) that even if the charter itself does not limit membership to males, federal chartering alone constitutes the kind of significant government involvement in private discriminations that is violative of the 5th Amendment. 353 F. Supp. at 475. Other than the fact that VFW had been granted a federal corporate charter, the record before the Court was bare of any further government involvement with the VFW. Finding subject-matter jurisdiction pursuant to 28 U.S.C. § 1331, 353 F. Supp. at 475, this Court further found that there existed no issue of material fact, that the corporate charter did not mandate discrimination on the basis of sex, 353 F. Supp. at 475-6, and that Congressional chartering alone, as a matter of law, does not constitute the kind of significant government involvement in private discriminations that is violative of the equal protection guarantee in the due process clause of the 5th Amendment. 353 F. Supp. at 476. Accordingly, the Court concluded that defendant was entitled to judgment as a matter of law and granted summary judgment for defendant.
On appeal, plaintiff argued, for the first time, that the involvement of the government with VFW went beyond mere chartering. Plaintiff pointed
"to the requirement of presentations to Congress of annual reports of proceedings [ 36 U.S.C. § 118] and of audits of finances [ 36 U.S.C. §§ 1102, 1103]; to VFW's entitlement to loans or gifts of condemned or obsolete combat material [ 10 U.S.C. § 2572]; to its special federal income tax status both in its exemption from a tax on income, 26 U.S.C. § 501(c)(4), and in the deductions from gross income accorded those who make contributions to the VFW, 26 U.S.C. § 170(c); and to the authorization, contained in 38 U.S.C. § 3402, of the Administrator of the Veterans' Administration to recognize representatives of the VFW for the purpose of prosecuting claims under laws administered by the Veterans' Administration, and the further authorization to furnish office space to VFW representatives." 500 F.2d at 790. (Footnotes in brackets).
The Court of Appeals, although not reaching the merits of this case, stated that while it was "inclined to agree" with the conclusion of this Court that "Congressional chartering alone does not constitute significant government involvement that triggers due process guarantees," 500 F.2d at 790, the aforementioned factors presented to the Court on appeal
"establish a color of government involvement with VFW that is not adequately described as 'Congressional chartering.' They invite further examination of the nexus between the VFW and the Government and consideration of how that nexus fits into the doctrine of 'state action.'" (Footnote omitted). 500 F.2d at 790.
"[the] fact that [plaintiff] erred in seeking summary judgment on the theory that the Congressional chartering statutes were alone sufficient to trigger due process guarantees did not disable [plaintiff] from bringing forth facts of additional government involvement in order to resist a summary disposition in favor of defendant VFW," 500 F.2d at 791,
that Court remanded the case so that plaintiff might "make the kind of showing contemplated under Rule 56 in an effort to avoid summary judgment for the VFW." 500 F.2d at 791.
Now pending before this Court are cross-motions for summary judgment filed by the parties subsequent to the remand from the Court of Appeals. Plaintiff has been afforded additional time for discovery. As a result thereof, the Court now has before it the deposition of Francis W. Stover, National Legislative Director of VFW, and answers to interrogatories propounded to defendant by plaintiff. Oral argument has been heard on the pending motions. In addition to the memoranda and exhibits submitted in support of and in opposition to the respective motions, and the respective statements of material facts as to which there is no genuine issue,
the parties have submitted post-hearing memoranda. In addition to the foregoing the Court has considered the entire record herein, as well as the guidance provided by the Court of Appeals in remanding this action.
Although the record herein has been factually supplemented in the manner indicated in footnote 1 below, it is the opinion of the Court that these supplemental facts are not material to the issues decided previously by the Court in its original opinion. Further, the Court remains unpersuaded to change its holdings therein. Accordingly, the holdings of this Court in that opinion, 353 F. Supp. 473, and the reasons stated therein, are hereby affirmed. Specifically: (1) jurisdiction exists in this action under 28 U.S.C. § 1331; (2) the statutory charter of the VFW, 36 U.S.C. § 111 et seq., does not mandate discrimination on the basis of sex, and to the extent that plaintiff now argues that said statute authorizes or encourages discrimination on the basis of sex, this Court finds that it does not; and (3) Congressional chartering alone does not constitute the kind of ...