Health Agencies, "it is more logical and rational to assume that a donor who does not designate an agency is exercising 'no preference' in the eventual distribution, than to assume he is exercising a preference that his contribution be distributed in the manner [suggested by the plaintiff]." Slip op. at 4. In any case, there is no dispute that the NSA groups have been allowed to participate in the process by which the LFCGs determine how to distribute funds. Accordingly, what the plaintiffs decry as "vagueness" is in reality the flexibility that the CFC and the LFCGs require if the campaign is to be administered fairly in each locality. There is no violation of due process here.
II. Plaintiffs' First Amendment Rights
Plaintiffs make three arguments to support their contention that the decisions denying them undesignated funds violate their rights under the first amendment to the Constitution: (1) that the "unbridled discretion" afforded local CFCs has been used to interfere with plaintiffs' first amendment rights, that the various restrictions on solicitation of contributions hinder such rights, and (3) that the denial of undesignated funds impedes the plaintiffs' ability to carry out programs and activities involving speech and association.
With respect to the first argument, as concluded above the discretion conferred upon LFCGs is not "unbridled," but can only be exercised within certain limits, albeit limits designed to allow flexibility. However, some concern is raised by the fact that at least one LFCG, that governing the National Capital Area CFC (the largest in the country), cited as one reason for denying undesignated funds to NSAs its fear that their presence among the groups in the CFC receiving undesignated funds would have a negative effect upon contributions received. The National Capital CFC's theory evidently was that if NSAs were to share in the undesignated receipts, some potential contributors would be dissuaded from making undesignated gifts to the CFC because those contributors would not want their donations going to groups who engage in activities involving political issues with which they might disagree. Plaintiffs argue that as a result they, as all NSA organizations, have been excluded from receiving undesignated funds because of first amendment-protected activities in which they engage, and that such exclusion therefore offends the first amendment.
This argument was persuasive when the question of the NSAs' eligibility to receive designated contributions through the CFC was at issue in NAACP LDF I. However, the instant matter is quite a different case. The rights of those who wish to contribute to plaintiffs through the CFC are not hindered, and indeed have been guaranteed as a result of Judge Gesell's decision. Likewise is the opportunity for plaintiffs to receive designated contributions guaranteed by that decision. By contrast, a donor making undesignated contributions elects to express no preference that his money should be distributed in part to plaintiffs; rather, all he is saying is that his money should go to the public good.
At the minimum, there must be a rational basis for the LFCG's conclusion that including NSAs among those receiving undesignated funds could inhibit general contributing and a relationship between the decision not to include the NSAs and a legitimate governmental interest. The legitimate interest is clear: the desire to insure that as much funds as possible are received through the CFC. Moreover, to the extent that a person will be inhibited from making undesignated donations when the beneficiaries may include organizations with whose purpose he disagrees, the LFCG's decision is rationally related to that interest. Finally, there is a rational basis for concluding that the presence of NSAs among those receiving undesignated funds might render some employees less apt to make undesignated contributions. Because NSAs such as plaintiffs engage in litigation to advance their objectives, by definition there will be some individuals whose sympathies lie with those seated at the table across the courtroom. Indeed, by denying undesignated funds to NSAs the local CFCs serve to protect the first amendment interests of those contributors who do not wish that their funds go to support the NSAs' first amendment activities. The decision not to speak or associate is entitled to as much protection under the first amendment as the decision to speak or associate. See, e.g., Kolinske v. International Union, 530 F. Supp. 728, 733 (D.D.C. 1982); Gavett v. Alexander, 477 F. Supp. 1035, 1045 (D.D.C. 1979). Likewise, the right to contribute to political and other causes necessarily includes the right not to contribute. Kolinske, 530 F. Supp. at 734, citing Abood v. Detroit Board of Education, 431 U.S. 209, 234, 52 L. Ed. 2d 261, 97 S. Ct. 1782 (1977).
It should also be noted that the decision not to allow the award of undesignated funds to NSAs is not inconsistent with OPM's stated intention to bring those agencies eventually into the distribution of such funds. After a history of designated contributions to NSAs is established, uncertainty as to the intentions and desires of employees within a local CFC will be sharply reduced. This will make it easier to determine the extent to which local contributors are likely to favor the distribution of funds to NSAs, and in what amount distributions should be made. The value and importance of the services performed by the NSAs notwithstanding, at the core, the way monies are to be allotted must be in accordance with the intentions of the donors.
Plaintiffs' second argument focuses on the limitations imposed upon organizations participating in the CFC, which restrict their ability to encourage employees to designate any particular organization to receive their contributions. While admitting that "on their face these requirements fall equally on all agencies admitted to the CFC," see Plaintiffs' Memorandum, at 25, plaintiffs argue that the requirements fall unequally on NSA members in those CFCs where they have not received undesignated funds. Stated another way, plaintiffs' argument is that where NSAs do not receive undesignated funds but other agency groups do, NSAs should be excused from the limitations on solicitation so that they might be able to encourage more designated contributions to make up for the undesignated funds unavailable to them.
Inasmuch as an important purpose of the Executive Order establishing the CFC was to regulate the solicitation of government employees at their work stations to make contributions to charitable organizations, some restrictions on solicitation are essential. See Exec. Order No. 10,927, § 2, Manual § 1.1. Nevertheless, sufficient information must be given to potential contributors as to the choices available regarding the beneficiaries they may designate or the manner in which undesignated funds are distributed. National Health Agencies, slip op. at 5. The Manual provides that campaign and publicity materials, developed in the local area, will be issued to employees so that they may make informed choices in their participation in the CFC. Manual § 4.12. To lift the restrictions on the NSAs -- restrictions which plaintiffs concede are imposed equally upon all agency groups -- but retain them with respect to the other groups would not only be unfair to the other groups but defeat the legitimate regulatory purposes of the Executive Order. Furthermore, there could be no justification for this relief sought by plaintiffs since, as explained above, plaintiffs have no right to undesignated funds and there is no infirmity with the LFCGs' decisions not to grant awards of such funds to the NSA groups.
Plaintiffs' third and final first amendment argument similarly is without merit. The fact that plaintiffs would use the funds they would receive for first amendment activities is of no moment to this case. To argue that they are entitled to funds donated by persons who have articulated no preference as to the way in which the funds should be distributed because plaintiffs would use the funds for first amendment activities would essentially be to put the plaintiffs' speech into the silent donors' mouths. This violates the freedom of those donors not to speak, which is protected by the first amendment no less than the freedom to speak. Abood, 431 U.S. at 234; Kolinske, 530 F. Supp. at 734.
III. Equal Protection
Plaintiffs' argument on this issue in its totality is that "Defendant is unable to demonstrate any compelling reason for a policy which requires the establishment of a five-year historical base before plaintiffs may share in undesignated contributions or on an equal basis with other participating charities." Plaintiffs' Memorandum at 18. This argument is unpersuasive for two reasons. First, plaintiffs misstate defendant's policy, in that defendant has declared that local CFCs should consider distributing undesignated funds to NSAs as soon as some contributor history is established. Second, equal protection analysis is inapplicable because the various groups are not similarly situated for the reason that the NSAs only recently have entered the CFC. Accordingly, there is no equal protection violation here.
IV. The "Arbitrary, Capricious, and Abuse of Discretion" Argument
Plaintiffs make two arguments here: that defendant's governing authority -- the Manual -- does not permit OPM to authorize LFCGs that have been in existence more than five years to deny an allocation of any undesignated funds to NSAs and that defendant has no standards defining "reasonable" for purposes of allocating a "reasonable share" of undesignated funds to NSAs. Both of these arguments have a common basis: that where the Manual directs that a "reasonable" portion of undesignated funds be distributed to NSAs, some funds must be allocated. Plaintiffs argue that since "reasonable is defined by Webster's as, among other things, not extreme," since "none" is "one extreme," that amount is "by definition, not reasonable." Plaintiffs' Memorandum at 31. The definition from which plaintiffs evidently took their interpretation of the word, when read in full, states that reasonable means "not extreme; sensible; sane." E.g. Webster's New World Dictionary, College Ed. (1968), at 1211; see also Webster's Third International Dictionary (1968), at 1892 ("not absurd," "not ridiculous," "being or remaining within the bounds of reason," "not extreme," "possessing good sound judgment," "well balanced," "sensible"). Despite what plaintiffs assert, the only sensible distribution of funds may well be no distribution if there is insufficient information upon which to base a determination. Indeed, to distribute funds without any basis would be arbitrary and capricious, and work to the detriment of the other groups participating in the CFC. Adequate standards exist to govern the distribution of undesignated funds. Defendant's policies and decisions at issue here do not violate the provisions of the Administrative Procedure Act cited by plaintiffs and are neither arbitrary nor capricious actions.
In accordance with the foregoing, it is, by the Court, this 31st day of March, 1983,
ORDERED, that plaintiffs' motion for summary judgment shall be and hereby is denied, and it is
FURTHER ORDERED, that defendant's motion for summary judgment shall be and hereby is granted, and it is
FURTHER ORDERED, that this cause stands dismissed, all other pending motions being dismissed as moot.
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 560 F. Supp.]
Consistent with the Memorandum Opinion and Order issued in this action this date, judgment shall be and hereby is entered in favor of defendant, Donald J. Devine, Director, Office of Personnel Management, and against plaintiffs, NAACP Legal Defense and Educational Fund, Inc., and Puerto Rican Legal Defense and Education Fund, Inc.
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