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NAACP LEGAL DEFENSE & EDUC. FUND v. HORNER

May 30, 1986

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, et al., Plaintiffs,
v.
CONSTANCE HORNER, Director, Office of Personnel Management, Defendant; PLANNED PARENTHOOD FEDERATION OF AMERICA, INC., Plaintiff, v. CONSTANCE J. HORNER, Director, Office of Personnel Management, Defendant



The opinion of the court was delivered by: GREEN

 JOYCE HENS GREEN, United States District Judge.

 Plaintiffs 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., seven legal defense funds that provide health and welfare services in the areas of civil rights and environmental protection through litigation and educational activities, have moved this Court for a preliminary injunction seeking to enjoin defendant Constance Horner, Director of the Office of Personnel Management ("OPM"), from excluding them from participating in the 1986 Combined Federal Campaign ("CFC"). Joining with them in this motion is Planned Parenthood Federation of America, ("PPFA"), plaintiff in a related action. *fn1" Oral argument on the motion was heard on May 28, 1986. For the reasons set forth below, the Court grants plaintiffs' motion.

 I.

 Plaintiffs challenge eligibility requirements established by defendant that will exclude them *fn2" from participating in the CFC, a charity drive aimed at federal employees. This Court previously held that the eligibility criteria set out in Executive Order 12,404 and OPM's implementing regulations were unconstitutional content-based restrictions on plaintiffs' First Amendment right to solicit charitable contributions. NAACP Legal Defense Fund v. Devine, 567 F. Supp. 401 (D.D.C. 1983). That judgment, which was affirmed by a divided panel of the Court of Appeals, see 234 U.S. App. D.C. 148, 727 F.2d 1247 (D.C. Cir. 1984), was subsequently overturned by the Supreme Court. Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985) (" Cornelius v. NAACP "). The Supreme Court held that the CFC was a nonpublic forum and that the government was therefore entitled to impose reasonable restrictions on the exercise of First Amendment rights within that forum. Id. at 3451-53. The Court concluded that the "government's posited justifications for denying respondents access to the CFC appear to be reasonable in light of the purpose of the CFC." Id. at 3454. In so ruling, however, the Court observed that an otherwise reasonable, viewpoint-neutral restriction may nonetheless be unconstitutional if it is in fact "a facade for viewpoint-based discrimination." Id. The Court noted that some evidence in the record suggested that such discrimination may lie behind the CFC eligibility requirements, but declined to decide the question on the record before it, inviting plaintiffs instead to pursue the issue on remand. Id. at 3454-55.

 Shortly after the Supreme Court announced its decision, plaintiffs amended their complaint and requested discovery concerning defendant's underlying motive for adopting the eligibility criteria. The government responded with motions to dismiss the case and for a protective order. Those motions were denied by Order dated May 8, 1986. Three days prior to the denial of defendant's motions, plaintiffs filed their motion for injunctive relief. They argue that final regulations published by defendant on April 4, 1986, 51 Fed. Reg. 11,668 (to be codified at 5 C.F.R. Part 950), in a form substantially identical to those at issue before the Supreme Court, will prevent them from participating in this year's CFC, thereby inflicting irreparable harm upon them before they are able to challenge, and this Court is able to determine, the validity of the eligibility requirements. An injunction is necessary to preserve the status quo, they contend, while this Court undertakes the searching inquiry into defendant's motive contemplated by the Court of Appeals' mandate in this case. See NAACP Legal Defense and Educational Fund, Inc. v. Devine, No. 85-00928 (D.C. Cir. Aug. 29, 1985). Defendant argues in opposition that plaintiffs have not, and cannot, carry their burden of demonstrating that they have a substantial likelihood of prevailing on the merits of their claim, or that the balance of hardships justifies the extraordinary relief they seek. Accordingly, defendants contend, plaintiffs' motion must be denied.

 II.

 The standards governing the availability of preliminary injunctive relief are of course well established. Plaintiffs must demonstrate that: (1) they have a substantial likelihood of success on the merits; (2) they will suffer irreparable harm absent an injunction; (3) defendant and others will not be irreparably harmed if an injunction issues; and (4) the public interest favors entry of an injunction. Virginia Petroleum Jobbers Ass'n v. Federal Power Comm'n, 104 U.S. App. D.C. 106, 259 F.2d 921, 925 (D.C. Cir. 1958); accord Wisconsin Gas Co. v. Federal Energy Regulatory Comm'n, 758 F.2d 669, 673-74 (D.C. Cir. 1985); Washington Metropolitan Area Transit Comm'n v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 559 F.2d 841, 843-44 (D.C. Cir. 1977). Where the balance of hardships tips decidedly in favor of the moving party, a showing that that party has raised a serious legal question -- one so substantial as to be "fair ground for litigation and thus for a more deliberative investigation" -- will suffice in lieu of a showing of substantial likelihood of success on the merits. Holiday Tours, 559 F.2d at 844.

 A.

 Plaintiffs have identified two direct, immediate and irreparable harms if they are excluded from participating in the 1986 Campaign: first, they will irretrievably lose charitable contributions they would otherwise receive; second, they will suffer a violation of their constitutional rights.

 Through past participation in the CFC, plaintiffs have garnered substantial donations and contributions from federal workers. Although no legal defense funds participated in the Campaign prior to the fall of 1981, in 1983 such groups received approximately $2 million from nationwide contributions. The NAACP Legal Defense and Educational Fund has received $1 million during its five years of participation. Ralston Affidavit III, para. 3. From 1982 through 1984, the Sierra Club Legal Defense Fund received some $800,000 in pledges, Blauner Affidavit, para. 5, and the Lawyers' Committee for Civil Rights Under Law collected more than $100,000. Robinson Affidavit, para. 12. Federal workers contributed $60,000 each year during the last three years to the Natural Resources Defense Council, Scherr Affidavit, para. 6, and CFC contributions now amount to more than 20 percent of the annual budget of the Indian Law Resource Center. Plaintiff PPFA received over $700,000 in each of the last two Campaign drives.

 Clearly then, participation in the Campaign has been beneficial to plaintiffs. Exclusion will inflict substantial economic harm that cannot be rectified or remedied in the event plaintiffs ultimately prevail in their challenge. Given the great number of federal employees located in every state and abroad, it is obvious that plaintiffs cannot solicit contributions directly from this audience, as the cost of doing so would be prohibitively expensive. Nor could plaintiffs hope to recover from the government contributions that would have been made by federal workers. In NAACP Legal Defense and Educational Fund, Inc. v. Campbell, 504 F. Supp. 1365, 1369 (D.D.C. 1981), these same plaintiffs requested that they be assigned a disbursement from future CFC funds as compensation for revenues lost because of their unconstitutional exclusion from the 1981 Campaign. The Court there ruled that there was simply no way to calculate the amount of funds lost, and therefore denied their request.

 Not only would plaintiffs' loss be irreparable because it would be incalculable, but the loss of CFC funds would force plaintiffs to curtail immediately the health and welfare services they provide to their clients. Plaintiffs would have to forego new litigation commitments and other activities, such as representation before administrative agencies or legislative bodies -- opportunities that cannot be recovered if they eventually prevail on the merits. See National Senior Citizens Law Center, Inc. v. Legal Services Corp., 581 F. Supp. 1362, 1372-73 (D.D.C. 1984) (money damages cannot compensate plaintiffs for immediate withdrawal from ongoing litigation or inability to accept new litigation responsibilities); Massachusetts Law Reform Institute v. Legal Services Corp., 581 F. Supp. 1179, 1187-88 (D.D.C. 1984) (monetary relief inadequate compensation for foregone projects), aff'd 238 U.S. App. D.C. 59, 737 F.2d 1206 (D.C. Cir. 1985). The harm will be visited not only on the plaintiffs themselves, but more importantly on their clients -- persons unable to obtain legal assistance elsewhere. The Indian Law Resource Center would be compelled to cut its staff and discontinue many of its efforts on behalf of American Indians, Coulter Affidavit, para. 12; the Lawyers' Committee's ability to handle an ongoing desegregation case in Hattiesburg, Mississippi, would be jeopardized, Robinson Affidavit, para. 13; and the Sierra Club Legal Defense Fund would be forced to institute a moratorium on new investigations of environmental problems. Sutherland Affidavit, para. 5.

 Plaintiffs have more than demonstrated that their exclusion will produce a series of harms that "cannot adequately be redressed by final relief on the merits," and for which "money damages cannot provide adequate compensation." New York Pathological & X-Ray Labs, Inc. v. INS, 523 F.2d 79, 81 (2d Cir. 1975); see also Virginia Petroleum Jobbers Ass'n, 259 F.2d at 925. In addition to these "economic" harms, plaintiffs argue that absent an injunction they will suffer an irreparable deprivation of their First Amendment rights as well. The Supreme Court has acknowledged that plaintiffs' solicitations of contributions through the CFC is a form of speech entitled to protection under the First Amendment. Cornelius v. NAACP, 105 S. Ct. at 3444-48. It is well established that the "loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 367, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976). Defendant attempts to dismiss this claim of a constitutional deprivation as "two descriptions of the same alleged 'harm.'" Defendant's Opposition at 14. But in recognizing that plaintiffs' solicitation constitutes a form of protected speech, the Supreme Court identified two distinct aspects of that speech: the "economic" portion, in which the solicitation of funds enables plaintiffs to continue to communicate their views and carry on their activities; and the purely communicative aspects, in which the solicitation of funds itself is a form of communication, exposing the federal workers to plaintiffs' views and indicating where they might obtain more ...


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