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NATIONAL TREASURY EMPLES. v. CAMPBELL

January 15, 1980

NATIONAL TREASURY EMPLOYEES, UNION et al., Plaintiffs,
v.
ALAN K. CAMPBELL, Director, Office of Personnel Management, Defendant.



The opinion of the court was delivered by: FLANNERY

MEMORANDUM OPINION

Introduction

 This suit arises from certain lobbying activities by the defendant, the Director of the Office of Personnel Management (OPM), in support of the Federal Employees Compensation Reform Act of 1979 (Compensation Act), which was introduced into both houses of Congress on June 14, 1979. The plaintiff, the National Treasury Employees Union (NTEU), seeks declaratory relief and preliminary and permanent injunctive relief from these activities, alleging violation of two statutes.

 The defendant has moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), contending (1) that the plaintiff lacks standing to bring this action, (2) that neither statute at issue creates a private cause of action, (3) that the requirements for preliminary injunctive relief have not been shown, and (4) that regardless of these other points neither statute renders the defendant's activities illegal. The parties having fully addressed all issues in their briefs and at oral argument, the court will treat the defendant's motion as one for summary judgment. Fed.R.Civ.P. 12(b).

 The court rules for the defendant, finding that the parties lack standing and that neither statute gives rise to a private cause of action. For these reasons preliminary injunctive relief is inappropriate, and the court need not reach the question of whether either statute applies to the conduct in question.

 Background

 The activity of which the plaintiff complains is the use of an undetermined amount of OPM's funds for the preparation and mailing of copies of a certain letter to various publications across the country. The letter, dated June 1, 1979, set forth the views of OPM Director Alan Campbell with respect to the desirability of the Compensation Act, and it requested editorial support for the legislation. These facts were stipulated by the parties.

 NTEU is an unincorporated association representing approximately 100,000 employees of several federal agencies. Among its primary functions is lobbying in support of or in opposition to legislation that affects it members. NTEU has publicly opposed the Compensation Act, stating that it would adversely affect federal employees in general and NTEU's members in particular.

 NTEU argues that Campbell's use of public funds to support the Compensation Act not only directly injures itself and its members but also violates two statutes, both of which, according to NTEU, give rise to private rights of action. The first of these statutes, section 607(a) of the Treasury, Postal Service and General Appropriations Act of 1979, P.L. 95-429, 92 Stat. 1001, provides,

 
No part of any appropriation contained in this or any other Act, or of the funds available for expenditure by any corporation or agency, shall be used for publicity or propaganda purposes designed to support or defeat legislation pending before Congress.

 The second statute, 18 U.S.C.A. § 1913 (1970), provides,

 
No part of the money appropriated by any enactment of Congress shall, in the absence of express authorization by Congress, be used directly or indirectly to pay for any personal service, advertisement, telegram, telephone, letter, printed or written matter, or other device, intended or designed to influence in any manner a Member of Congress, to favor or oppose, by vote or otherwise, any legislation or appropriation by Congress, whether before or after the introduction of any bill or resolution proposing such legislation or appropriation . . . .

 Standing

 The basic requirement of standing is injury in fact. In addition, a plaintiff must show some causative link between the injury allegedly suffered and the action under protest. Simon v. Eastern Ky. Welfare Rights Org., ...


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