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July 1, 1980

ALAN K. CAMPBELL, Director, United States Office of Personnel Management, Defendant, and UNITED WAY OF AMERICA, Defendant-Intervenor.

The opinion of the court was delivered by: PARKER


In this proceeding the National Black United Fund (NBUF) challenges the eligibility criteria employed and the manner in which they were applied in denying its application to participate in the Combined Federal Campaign (Combined Campaign or Campaign), alleging principally that rights guaranteed by the First and Fifth Amendment to the United States Constitution have been violated. Plaintiff NBUF, a national voluntary welfare organization, applied to the United States Civil Service Commission seeking to participate in the Combined Campaign, an on-the-job solicitation directed at federal government employees by charitable organizations. The Chairman of the Civil Service Commission was responsible for regulating the solicitation. When its application was rejected the NBUF filed this suit against the Chairman. *fn1"

 The plaintiff seeks appropriate declaratory and injunctive relief. More specifically, NBUF seeks an order directing that it be allowed full opportunity to participate in the Combined Federal Campaign as a national voluntary agency. Earlier in this proceeding NBUF sought a preliminary injunction enjoining any Combined Campaign activities pending the final resolution of this action. That application was denied. In the course of this litigation, United Way of America, Inc. (United Way) which opposed NBUF's efforts to participate in the Combined Campaign was granted permission to intervene as defendant-intervenor. United Way is a national voluntary agency which assists united or federated fund-raising efforts of local charities. It has participated extensively in the formulation of the policy and the organization of the Combined Campaign.

 Presently before the Court are cross-motions for summary judgment filed by the NBUF, defendant and the defendant-intervenor. In support of the NBUF motion amici briefs were submitted by several national organizations: National Council of the Churches of Christ in the U.S.A.; National Convocation of the Christian Church; National Committee for Responsive Philanthropy; National Organization of Women Legal Defense and Education Fund, Inc.; NAACP Legal Defense and Educational Fund, Inc.; and IMAGE, an organization of Hispanics employed by federal, state and local governments.

 The memoranda of law submitted by the parties and by amici curiae, the administrative record, affidavits, and other relevant data *fn2" have been considered and this Court determines that the defendants' motion for summary judgment should be denied and the plaintiff's motion should be granted. The National Black United Fund is entitled to appropriate relief and its application to participate in the Combined Federal Campaign as a national voluntary agency should be considered by the defendant, in a manner consistent with the conclusions set forth in this opinion.



 The material undisputed facts are as follows. In 1961, responding to the burden imposed by the increasing number of fund-raising drives directed toward federal employees, President Kennedy established a mechanism for the solicitation of charitable donations within the federal workplace. In Executive Order 10927 *fn3" the President delegated authority to arrange for such solicitations to the Chairman of the Civil Service Commission. The Chairman was authorized to carry out the Order in such a manner as to "permit true voluntary giving," and empowered to:

make arrangements for such national voluntary health and welfare agencies and such other national voluntary agencies as may be appropriate to solicit funds from Federal employees and members of the armed forces at their places of employment or duty stations.

 A. The Combined Federal Campaign

 Pursuant to this executive mandate, the Chairman instituted the Combined Campaign a unified annual solicitation drive. Organization of a campaign incorporating all solicitations by national health and welfare agencies as well as international organizations into a single mechanism was an endeavor of great proportions. In carrying out the executive directive, the Chairman established three auxiliary bodies to aid him: an Advisory Council, an Eligibility Committee and a Policy Committee.

 The Advisory Council was responsible for assisting in the development of policies, procedures and eligibility requirements. *fn4" The Council, purportedly representative of the voluntary agencies participating in the federal program, assisted in the development of a Manual on Fund Raising Within the Federal Service for Voluntary Health and Welfare Agencies (Manual). It also helped promulgate eligibility guidelines and establish operating mechanisms for the solicitation of federal employees by charitable organizations. While challenged by the defendants, the plaintiff claims that the formation of the Advisory Council initiated a practice of dominance by United Way in the Combined Campaign. The Chairman set aside one of the four positions on the Advisory Council for the president of the United Way on a continuing basis. The other three positions were filled by the president of the Red Cross, a national voluntary health agency, and, on a rotating basis, the presidents of a participating international agency and a participating national health agency. It appears clear that from the outset, United Way was the presumed representative of national welfare organizations and, as a matter of practice throughout most of the history of the Combined Campaign, welfare agencies could join in the Campaign only through affiliation with United Way's national network.

 The Policy Committee is appointed by the Chairman and provides him with direct working participation in the development of the Combined Campaign. It consists of fund-raising coordinators from the government agencies and representatives of the largest employee organizations. The Committee acts through general meetings and ad hoc working committees as required.

 The Eligibility Committee makes recommendations to the Chairman on applications from national voluntary agencies, reviews and modifies eligibility standards and requirements as needed, and submits periodic reports to the Chairman as required. The Committee membership includes representatives of federal agencies and employee organizations chosen by the Chairman from the membership of the Policy Committee.

 As a matter of policy and practice, federal employees are permitted to spend substantial amounts of on-the-job time in connection with the Combined Campaign, serving on the various committees and working within their agency. In addition, the government bears the expense of maintaining the accounting and financial records associated with the payroll deduction method of contribution and remits the contributions to the participating charities. For the participating charities, the Combined Campaign is an efficient and inexpensive method of obtaining contributions and the government's assistance and efforts represent a substantial federal subsidy.

 B. Application of National Black United Fund

 In accordance with the procedure outlined in the Manual, NBUF submitted, in early 1976, an application to the Civil Service Chairman seeking designation as a national voluntary welfare agency. By this means plaintiff sought recognition on its own merits as an independent agency rather than through affiliation with United Way. The application included information on its board of directors and its local chapters. Also included were the relevant required financial information as well as sociological studies and demographic information documenting NBUF's claim that it served a target population which, by virtue of its scope, was not located in all states. Endorsements of the application came from members of Congress and prominent citizens.

 The plaintiff's efforts to participate directly in the Combined Campaign were rejected. The rejection was based upon an adverse recommendation by the Eligibility Committee and an independent review by the Chairman that NBUF was not sufficiently national in scope and that its administrative expenses were unreasonably high. In rejecting the application, the Chairman suggested that NBUF negotiate with the United Way to receive funds on the local level as part of a federated fund-raising group activity as opposed to seeking recognition as a national organization. NBUF contended it was a national voluntary agency and sought recognition as such. Viewing a second rejection by the Chairman as a final decision, NBUF sought judicial intervention.

 During the pendency of this suit, plaintiff reapplied for recognition as a national voluntary agency for participation in the 1977 Combined Campaign. That request was denied and plaintiff has not applied for participation in subsequent annual campaigns.

 C. Eligibility Criteria

 Section 5.1 of the Manual requires that the Chairman establish eligibility criteria for a threefold purpose, to insure that:

a) Only responsible and worthy voluntary agencies are permitted to solicit on the job in Federal installations,
b) The funds contributed by Federal personnel will be used effectively for the announced purposes of the soliciting agency, and,
c) All recognized national agencies have field organizations capable of participating equitably in the joint campaign arrangements ...

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