The opinion of the court was delivered by: PENN
JOHN GARRETT PENN, District Judge.
The National Health Agencies Committee for the Combined Federal Campaign (NHA), an unincorporated association of 17 non-profit, national volunteer health agencies approved to participate in the annual on the job fund raising drive among federal personnel known as the Combined Federal Campaign (CFC), filed this action for declaratory and injunctive relief "to compel conformity with . . . [Executive Order 10927 (March 18, 1961)] in the distribution of receipts from . . . [CFC campaigns], in order to enforce the rights of NHA's member agencies of all donors . . . to make contributions". Compl. para. 5. Plaintiff contends that the formula for distribution contained in the Manual on Fund-Raising in the Federal Service (Manual) violates the requirements of the Executive Order for "true voluntary giving" by federal employees because those donations designated for a particular agency and undesignated donations are not fully honored, to the injury of the donor and the plaintiff.
Under the formula, a dollar based figure is established for each participating agency using average receipts from the past five campaigns. All contributions designated for a specific agency are then credited against that agency's dollar base and no distribution of undesignated funds is made until all designated funds are counted and credited. Then, undesignated funds are used to fill up whichever agencies' dollar base goal of designated funds has not been reached. "Designated funds" are those designated by a donor for a specific voluntary agency. Manual § 4.7. "Undesignated funds" are those contributions not designated for any particular beneficiary organization. Id.
The case is now before the Court on motions for summary judgment filed by the parties.
The defendants have also questioned the plaintiff's standing to represent First Amendment rights of donors whose intentions allegedly are not honored under the distribution scheme established by the Manual. The Court need not address that specific issue however, since plaintiff clearly has the right to represent the interests of its member organizations and thus has standing to prosecute this case. Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 341-342, 97 S. Ct. 2434, 2440-2441, 53 L. Ed. 2d 383 (1977).
Turning to the merits of the claims asserted by the plaintiff, the plaintiff raises a number of contentions.
First, the plaintiff contends that under the formula established by the Manual, a designating donor is made to indirectly subsidize other agencies whose purposes the donor may disagree with because his donation effectively frees up an equivalent amount of undesignated funds for support of agencies which have failed to reach their dollar base. Moreover, only those designated funds which exceed an agency's dollar base result in any net gain to that agency.
Second, the plaintiff contends that the Manual formula fails to honor the intentions of those donors who have declined to designate on the grounds that the literature distributed to donors by local CFC's is misleading and fails to indicate that the agency's share of the total undesignated funds is reduced according to the designated contributions received by that agency.
Third, the plaintiff argues that the Manual formula violates the First Amendment because of its failure to comply with the Executive Order. Plaintiff notes that the act of contribution is a form of expression and association protected by the First Amendment. According to plaintiff, the use of voluntary contributions for other than the intended purpose is analogous to a compelled contribution, see Abood v. Detroit Board of Education, 431 U.S. 209, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977), and to placing a ceiling ...