CFC is the price for creating this exclusive channel by which charitable appeals may be made.
As the government's desire to avoid the appearance of using federal resources to support the legal defense funds' fund-raising efforts, total exclusion from the CFC certainly is not the least restrictive alternative that could have been imposed. While plaintiffs cannot be excluded from the CFC, the government may, if it desires, insert into campaign materials a neutral statement to the effect that its role in the CFC is simply to disseminate information and facilitate the making of donations. This would be sufficient to convey the government's desire not to endorse the making of contributions to any particular organization.
The only legitimate interest that the government can properly assert that pertains to the alleged opposition of employees to the participation of certain types of groups in the CFC is the protection of the employees' right not to contribute. NAACP LDF II, 560 F. Supp. at 676. But that problem only arises in the case of undesignated contributions. Therefore to the extent that the exclusion at issue could be considered to be directed at this interest, it is not as narrowly drawn as it might be in that it applies to designated contributions as well.
In light of the foregoing, the Court holds that, as far as it applies to the making of designated contributions, the directive in Executive Order seeking to reinstate a direct services requirement is contrary to plaintiffs' first amendment right to engage in charitable solicitation in a limited forum. Therefore, defendant shall be enjoined from denying pending or future application of plaintiffs to participate in the CFC for the solicitation of designated contributions.
II. Equal Protection Considerations
As noted above, plaintiffs' exclusion from participation in the CFC with respect to undesignated contributions appears to be more appropriately subject to an equal protection analysis rather than first amendment review. The fact that first amendment activity is a primary part of each plaintiff's mission arguably situates the plaintiffs differently from those organizations in the CFC who do not engage in such activity, in view of the first amendment rights of employees who make undesignated contributions. NAACP LDF II, 560 F. Supp. at 676-77. Ensuring that the CFC is operated in such a way as to protect those rights is a legitimate governmental interest. However, as final regulations implementing Executive Order 12404 have yet to be promulgated it is premature to consider whether the means by which the government might carry out that interest are proper. Accordingly, as far as plaintiffs' action concerns their access to undesignated funds, this cause will be dismissed without prejudice.
III. Preliminary Relief
Plaintiffs' request for preliminary injunctive relief is, of course, moot as it pertains to their ability to make their appeal for support through the CFC and receive designated contributions as a result. With respect to the question of plaintiffs' eligibility to receive undesignated contributions, a preliminary injunction is not warranted.
The standards governing the issuance of such relief are well-known and set forth in Virginia Petroleum Jobbers Association v. FPC, 104 U.S. App. D.C. 106, 259 F.2d 921, 925 (D.C. Cir. 1958). See also Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 559 F.2d 841, 843 (D.C. Cir. 1977). The factors which comprise those standards are (1) likelihood of success on the merits, (2) irreparability of harm, (3) detriment to third parties, and (4) where the public interest lies. During this litigation, the parties generally have focused their attention on the question of the plaintiffs' right to engage in charitable solicitation in the CFC rather than the issue of their eligibility to share in undesignated funds. As explained above, any right plaintiffs might have to access to undesignated contributions is much less than their right to solicit designated contributions through the CFC. On the question of access to undesignated funds, then, plaintiffs have not shown a strong likelihood of success on the merits. As to the second factor, inasmuch as undesignated funds are not distributed from their pool until after the annual campaign is concluded, it cannot be said that plaintiffs would be irreparably harmed should injunctive relief not issue at this time. Such relief could work to the detriment of other organizations eligible to receive undesignated funds for the reason that assuming defendant's characterization of the public outcry arising from plaintiffs' participation in the CFC is accurate, some employees may elect not to make the undesignated contributions they otherwise might make. Finally, it has not been shown why the public interest would require the issuance of this relief. Therefore, it is denied.
An Order consistent with this Memorandum Opinion shall be entered this date.
Consistent with the Memorandum Opinion entered in this action this date, it is, by the Court, this 15th day of July, 1983,
ORDERED, that plaintiffs' motion for summary judgment shall be and hereby is granted in part and denied in part, as explained in the Memorandum Opinion, and it is
FURTHER ORDERED, that defendant, his agents and subordinates, shall be and hereby are permanently enjoined from excluding plaintiffs from participation in the Combined Federal Campaign with respect to the solicitation of "designated contributions," as that term is used in this Memorandum Opinion, on the basis of the provisions of section (2)(b)(1 through 3) of Executive Order No. 12353, as amended by section 1(b) of Executive Order No. 12404 of February 10, 1983, and it is
FURTHER ORDERED, that to the extent that plaintiffs' complaint concerns their right to receive "undesignated contributions," as that term is used in the Memorandum Opinion, that claim is dismissed without prejudice, and it is
FURTHER ORDERED, that plaintiffs' request for preliminary injunctive relief shall be and hereby is denied.
This cause stands closed.
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