promulgated thereunder, the Court of Appeals remanded to this Court so that the Court could reconsider whether the case is now moot. This conclusion is supported by the fact that the Court of Appeals did not make a specific ruling on the issue of mootness.
After giving careful consideration to the record in this case and the 1982 executive order and regulations promulgated thereunder, the Court concludes that this case is moot and should now be dismissed
for the reasons set forth below.
First, it is clear that Section 4.7 of the Manual, which was the subject of this action, was modified by the 1980 amendment and completely superseded by the 1982 Executive Order and the 1982 regulations. The 1980 and 1982 changes were designed to overcome the objections made to the earlier methods of distribution.
Second, the issues plaintiff seeks to present are different than those referred to in the complaint and those addressed in the Court's Memorandum. Plaintiff has not filed a new action challenging the 1982 regulations and has not moved to amend its complaint in this case, even though it could have sought an amendment in response to the Court's order of January 19. The exact issues have not been framed and cannot be framed on the present record.
Third, this is not a First Amendment case, and in this connection, the Court's comments in its earlier Memorandum are relevant. See Memorandum at 3. Moreover, plaintiff has equal access to federal workers under the CFC.
Fourth, to the extent that plaintiff complained of the distribution scheme for undesignated contributions, the objections are cured by the present regulations. When OPM proposed the present regulations, it attempted to respond to the objections of various groups and agencies participating in the CFC; a difficult task with so many competing interests. Under the new procedure, contributors are encouraged to designate specific groups or agencies and therefore reduce the amount of undesignated contributions. See 5 C.F.R. § 950.513(a). OPM recognized however that many contributors would prefer to donate without designations and allow CFC to determine where best the funds might be used. The need for such funds differ from place to place, therefore it is virtually impossible to provide a specific scheme for the distribution of undesignated contributions and yet maintain the flexibility that is necessary and proper in such programs. For example, one method of distributing undesignated funds would be to distribute those funds in the same percentages as designated contributions. While at first glance this seems reasonable, it would result in a highly visible group and agency, which had already received a large share of designated funds, receiving the lion's share of undesignated funds, and little known but no less deserving agencies, receiving little or nothing. The present plan takes these factors into consideration and allows the Principal Combined Fund Organization (PCFO) to disburse undesignated contributions in a manner which will also benefit less visible agencies.
As this Court noted in its Memorandum of January 1982, there is nothing wrong in allowing a contributor not to designate, as long as the contributor is advised how his contribution will be distributed. The regulations now require that one group be appointed as the PCFO and that the group so appointed be identified to contributors. § 950.521(e)(2)(iv). Contributors are advised that when the contribution is earmarked to a specific agency, the PCFO will remit such funds, minus approved administrative costs, to that agency, and that when a specific agency is not designated, the gift is deemed to be designated to the PCFO for distribution. § 950.513(a). The contributor is fully advised and it is he who decides how his contribution is distributed. This cures the defects the plaintiff complained of when it brought this action. While the contributor does not know the ultimate beneficiary when he elects not to designate, other than that the PCFO will be designated to receive and distribute the funds, this procedure is necessary in order to maintain the flexibility of the program.
The Court must view the current regulations with the recognition that no scheme developed will be perfect or will be viewed as fair by every participating group or agency. OPM has attempted to address past complaints in its new regulations, and has done so only after considering the views of the participating organizations, including those of the plaintiff and its member agencies. The plan is new, and it may be that after a year or so, OPM will decide that further modifications are in order. But, the present regulations, although perhaps not perfect, are not arbitrary or capricious or not in accordance with law. Thus, plaintiff's original complaint that they were arbitrary and capricious is now rendered moot by the new Executive Order and the regulations promulgated thereunder.
Finally, plaintiff complains that some of the local CFC literature given to potential contributors does not conform with the requirements of the regulations, but this is not grounds for striking down the regulations or for the continuance of this now moot action. Plaintiff's remedy is to appeal those transgressions to the Director of the Federal Coordinating Committee. See § 950.521(a).
After taking all of these matters into consideration, the Court concludes that this action is moot and should be dismissed.