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NAACP LEGAL DEFENSE & EDUC. FUND, INC. v. DEVINE

July 15, 1983

NAACP Legal Defense and Educational Fund, Inc., Puerto Rican Legal Defense and Education Fund, Inc., Federally Employed Women Legal and Educational Fund, Inc., Indian Law Resource Center, Lawyers' Committee for Civil Rights Under Law, Sierra Club Legal Defense Fund, Inc., and Natural Resources Defense Council, Inc.,
v.
Honorable Donald J. Devine, Director, United States Office of Personnel Management, Defendant



The opinion of the court was delivered by: GREEN

 In this action, plaintiffs challenge their threatened exclusion from participation in the Combined Federal Campaign (CFC), an annual charitable fund-raising drive conducted by the federal government among its employees. The CFC is the only means by which charitable organizations may solicit contributions from federal employees or military personnel at their workplaces or duty stations. Plaintiffs are non-profit, tax-exempt charitable organizations within the meaning of section 501(c)(3) of the Internal Revenue Code, 26 U.S.C. § 501(c)(3). Each plaintiff engages in litigation and other activities with the purpose of protecting the environment advancing the civil rights of a particular group of minorities or women. They have been referred to generally as "legal defense funds." Defendant is the Director of the Office of Personnel Management (OPM), the agency under whose auspices the CFC is conducted. Plaintiffs essentially argue that a new Executive Order having the objective of denying legal defense funds the opportunity to participate in the CFC violates their asserted first amendment right to engage in charitable solicitation. As plaintiffs put it, the "basic issue" of this case is whether they, like other CFC participants, will be allowed to have their "30-word" informational statement included in the annual campaign brochure. This Court previously denied plaintiffs' motion for a preliminary injunction and defendant's motion to dismiss. This matter is now ripe for decision upon plaintiffs' motion for summary judgment which, along with their renewed request for a preliminary injunction, was argued on July 6, 1983. For the reasons which follow, the Court grants plaintiffs' motion for summary judgment in part and dismisses the action in part, the renewed request for preliminary injunctive relief being denied as moot.

 The CFC was created by President Kennedy through Executive Order 10927, on March 18, 1961. Exec. Order No. 10,927, 3 C.F.R. 454 (1959-63 Compilation). How it operates is described in greater detail in NAACP Legal Defense and Educational Fund, Inc. v. Campbell, 504 F. Supp. 1365 (D.D.C. 1981) [hereinafter referred to as NAACP LDF I ] and NAACP Legal Defense and Educational Fund, Inc. v. Devine, 560 F. Supp. 667 (D.D.C. 1983) [hereinafter referred to as NAACP LDF II ]. At one time legal defense funds such as plaintiffs were excluded from participation in the CFC because of the "direct services" requirement. The direct services requirement limited participation in the CFC to charitable organizations "providing direct services to persons in the fields of health and welfare services." NAACP LDF I, 504 F. Supp. at 1366 (quoting Manual on Fund-Raising Within the Federal Service for Voluntary Health and Welfare Agencies § 5.21).

 Two of the plaintiffs in the instant action challenged that direct services requirement on, among other grounds, the ground that it abridged their first amendment right to engage in charitable solicitation. NAACP LDF I, 504 F. Supp. at 1366. Agreeing with the plaintiffs that the direct services requirement impinged upon the plaintiffs' first amendment rights, Judge Gesell struck down the requirement as "too vague to comport with the strict standards of specificity" required in the first amendment context. Id. at 1366-67. Thereafter, all of the plaintiffs in the instant action applied and were permitted to participate in the CFC for 1981 and/or 1982 as "national service agencies." Executive Order 10927 was superceded by Executive Order 12353 on March 23, 1982, 47 Fed. Reg. 12785 (1982); the new order did not affect plaintiffs' ability to participate in the CFC.

 On February 10, 1983, however, Executive Order 12353 was amended by Executive Order 12404, which had the objective of reinstating the direct services requirement, but with the constitutionally-required specificity that the previous such requirement was found to lack in NAACP LDF I. It states that

 
eligibility for participation in the Combined Federal Campaign shall be limited to voluntary, charitable, health and welfare agencies that provide or support direct health and welfare services to individuals or their families. Such direct health and welfare services must be available to Federal employees in the local campaign solicitation area, unless they are rendered to needy persons overseas. Such services must directly benefit human beings, whether children, youth, adults, the aged, the ill and infirm, or the mentally or physically handicapped. Such services must consist of care, research or education in the fields of human health or social adjustment and rehabilitation; relief of victims of natural disasters and other emergencies; or assistance to those who are impoverished and therefore in need of food, shelter, clothing, education, and basic human welfare services.

 Exec. Order No. 12,404 § 1, 48 Fed. Reg. 6685 (1983). The Executive Order also provides that "Agencies that seek to influence the . . . determination of public policy through . . . advocacy, lobbying or litigation on behalf of parties other than themselves shall not be deemed charitable health and welfare agencies and shall not be eligible to participate in the Combined Federal Campaign." The announced purpose of the Executive Order's instruction that a direct services requirement be reimposed was to exclude legal defense funds from the CFC, identifying as such several of the plaintiffs in this action. Devine Memorandum of Feb. 2, 1983, " New Executive Order for the Combined Federal Campaign, " Exh. K to Ralston Affidavit.

 According to defendant, the participation of some organizations in the past had resulted in controversy and threatened boycotts of the campaign. For example, various labor groups expressed their opposition to the including of the National Right to Work Legal Defense Foundation in the CFC and warned defendant of potential boycotts as a result. Chairpersons of some local CFC committees also advised defendant of their concerns that contributions to the CFC might decline because of the presence in the campaign of organizations involved in such issues as integration and abortion, as well as "right-to-work."

 Plaintiffs argue that the reinstated direct services requirement suffers from the same vagueness defect as the rule at issue in NAACP LDF I. They also argue that because the CFC is a "limited public forum," the Executive Order's exclusion of organizations "that seek to influence . . . the determination of public policy through . . . advocacy, lobbying, or litigation on behalf of parties other than themselves" is an unconstitutional infringement upon their first amendment rights. Furthermore, they assert that the order violates their guarantee to equal protection of the laws. Defendant contends that the vagueness challenge is premature inasmuch as any such deficiency could be cured, in defendant's view, by the promulgation of implementing regulations containing the needed specificity. This argument has merit: proposed regulations to implement Executive Order 12404 were announced on June 24, 1983 for a 30-day notice and comment period. Yet the substantive first amendment issues raised by the Executive Order are ready for judicial review at this time, for the reason that no regulation could remove the allegedly unconstitutional exclusion and remain consistent with the Executive Order.

 It is important to note that the CFC provides employees with two ways in which to make contributions, inasmuch as (for reasons which will be explained below) plaintiffs' first amendment rights differ with respect to these two methods. An employee may designate that his donations be distributed to particular organizations participating in the CFC. Alternatively, if the employee does not designate any agency to benefit from the donation, the amount contributed is placed into a pool which is divided among the approved agencies in accordance with a formula set forth in the regulations. See NAACP LDF II, 560 F. Supp. at 670.

 I. Plaintiffs' First Amendment Rights

 The solicitation of charitable contributions involves interests protected by the first amendment's guarantee of freedom of speech. Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 629, 63 L. Ed. 2d 73, 100 S. Ct. 826. At least with respect to designated funds, this principle applies to the CFC: by engaging in solicitation throughout the campaign, an organization seeks to persuade an employee to make a donation to that organization. See NAACP LDF I, 504 F. Supp. at 1637, see also NAACP LDF II, 560 F. Supp. at 675. Yet the same interests are not present in the making of undesignated contributions. An employee's decision to make a general undesignated donation is not motivated by the same considerations as a decision to designate a contribution. Such a decision is not a response to a particular organization's solicitation activities in the same way that a decision to make a designated contribution is, for the reason that he yields to the CFC all control over how that money is to be disbursed.

 This was the basis for this Court's decision in NAACP LDF II that denying plaintiffs the eligibility to receive undesignated funds did not violate their first amendment right to engage in charitable solicitation. This Court found NAACP LDF II "quite a different case" from NAACP LDF I, noting that while the opportunity for the plaintiffs to receive designated contributions was ensured by the prior 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." 560 F. Supp. at 675. Accordingly, with regard to undesignated funds, plaintiffs' claim appears to be more properly the subject of an equal protection analysis than first amendment scrutiny.

 Where the government has created a forum for activities involving free speech, reasonable time, place, and manner restrictions are permissible, but any content-based prohibition must be "narrowly drawn to effectuate a compelling state interest." Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 103 S. Ct. 948, 955, 74 L. Ed. 2d 794 (1983), see also Police Department of Chicago v. Mosley, 408 U.S. 92, 96, 33 L. Ed. 2d 212, 92 S. Ct. 2286 (1977). Attempting to analogize the CFC to the school internal mail system found not to be a public forum by the Supreme Court in Perry Education, defendant argues that the ...


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