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NATIONAL HEALTH AGENCIES' COMM. FOR THE COMBINED F

April 13, 1983

The NATIONAL HEALTH AGENCIES' COMMITTEE FOR THE COMBINED FEDERAL CAMPAIGN, Plaintiff,
v.
Donald J. DEVINE et al., Defendants



The opinion of the court was delivered by: PENN

 JOHN GARRETT PENN, District Judge.

 The plaintiff filed this action to challenge Section 4.7 of the now-superseded 1977 Manual on Fund Raising in the Federal Service (Manual) on several grounds. In particular, plaintiff contended that Section 4.7 violated the "true voluntary giving" requirement of Executive Order No. 10927, that the method for distribution of contributions provided in Section 4.7 violated the First Amendment rights of donors and recipients by failing to honor the intentions of donors, that the method of distribution provided in that section discriminated against the plaintiff in violation of the Fifth Amendment and that Section 4.7 was arbitrary and capricious.

 The Office of Personnel Management (OPM) amended Section 4.7 effective in April 1980, changing the procedures challenged by plaintiff for the distribution of Combined Federal Campaign (CFC) contributions. Thereafter, this Court found that plaintiff's claims were without merit and entered summary judgment for the defendants. See Memorandum filed January 22, 1982 (hereinafter simply referred to as the Memorandum). Plaintiff appealed that decision on March 18, 1982. On March 23, 1982, President Reagan revoked Executive Order No. 12107, which had previously incorporated Executive Order No. 10927, and replaced it with Executive Order No. 12353, 47 Fed.Reg. 12785, which governs the 1982 CFC and all future CFC's. Pursuant to Executive Order No. 12353, OPM promulgated new regulations for the CFC, which superseded the Manual and which made substantial changes in the method of allocating contributions. See 47 Fed.Reg. 29496 (July 6, 1982), now codified at 5 C.F.R. Part 950.

 On January 6, 1983, the Court of Appeals vacated this Court's judgment in favor of the defendants and remanded the case to this Court, 701 F.2d 222, "for reconsideration in light of Executive Order No. 12353, issued March 23, 1982, and the regulations governing Combined Federal Campaign issued July 6, 1982, codified at 5 C.F.R. §§ 950.101-950.525." Upon receipt of the mandate, which was issued forthwith, the Court directed the parties to file "further memoranda addressing the effect of [Executive Order No. 12353] and the revised regulations on the issues pending in this case." Order filed January 19, 1983. All parties filed memoranda, and in addition, plaintiff filed a motion for a preliminary injunction asking the Court to enjoin distribution of undesignated contributions from the fall -- 1982 CFC pending further order of the Court. The Court heard arguments on the motion on March 31, 1983, and thereafter denied plaintiff's request for injunctive relief on the grounds that plaintiff had not demonstrated that it was likely to prevail on the merits and had failed to establish that it would suffer irreparable harm if injunctive relief was denied. See Order filed April 7, 1983.

 I

 The Court now addresses the responses made by the parties to the Court's Order of January 19, 1983. There, the Court asked the parties to address the effect of the new Executive Order and the new regulations promulgated pursuant thereto on the issues pending before the Court.

 Before addressing those responses, it should be noted that the parties disagree as to the present status of this case and the meaning of the order issued by the Court of Appeals. Plaintiff contends that by its order of January 6, 1983, the Court of Appeals has ruled that the case is not moot, even in view of the new Executive Order and regulations, and has remanded the case so that plaintiff may make yet another challenge to the CFC distribution scheme, the Executive Order or the regulations promulgated thereunder. Plaintiff supports its argument by noting that the defendants had argued before the appellate court that the case was moot in view of the new Executive Order and regulations and that if the court had agreed, it would have so ruled and remanded the case with a direction to dismiss.

 Defendants, as might be expected disagree with plaintiff's interpretation of the appellate court's order and argue that the Court of Appeals simply remanded the case to this Court so that this Court might determine whether the case is moot in view of the new Executive Order and regulations.

 The Court views the order of the Court of Appeals in light of the entire record in this case. It cannot be overlooked that defendants argued prior to the entry of this Court's Memorandum, that the case was moot in view of the 1980 amendments to Section 4.7. This Court did not specifically address the mootness issue in its Memorandum; rather, it addressed the merits of the case and thereafter granted summary judgment for the defendants. Thus, at the time this case was before the Court of Appeals, there were two potential issues of mootness, one being whether the 1980 amendment mooted the case, and the other, whether the 1982 change mooted this case.

 This Court concludes that the Court of Appeals did nothing more than to remand to this court to "reconsider" based upon the present facts and record. The appellate court did not address the merits of the Court's Memorandum, therefore it seems fair to assume that, in view of the prior mootness arguments based on the 1980 amendment to the Manual, and the change made by the 1982 Executive Order and Regulations 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.

 II

 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 *fn1" 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 ...


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