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PLANNED PARENTHOOD OF METRO. WASHINGTON

September 19, 1986

PLANNED PARENTHOOD OF METROPOLITAN WASHINGTON, D.C., INC., Plaintiff,
v.
CONSTANCE J. HORNER, Defendant


Joyce Hens Green, United States District Judge.


The opinion of the court was delivered by: GREEN

JOYCE HENS GREEN, UNITED STATES DISTRICT JUDGE.

 Plaintiff Planned Parenthood of Metropolitan Washington, D.C., Inc. (PPMW), an independent affiliate of Planned Parenthood Federation of America, Inc. (PPFA), brings this action challenging its exclusion from the Combined Federal Campaign (CFC) of the National Capital Area. Plaintiff PPMW participated in the 1985 CFC for the National Capital Area, and claims that its exclusion from this year's CFC violates federal law and is part of an unlawful campaign of discrimination undertaken by the Office of Personnel Management (OPM). Plaintiff initially sought immediate injunctive relief in the form of a temporary restraining order. The parties subsequently agreed, however, that, because this year's campaign is due to commence shortly, *fn1" a grant or denial of temporary relief would, in essence, constitute a final disposition of this case. Accordingly, an expedited hearing was held on the merits of plaintiff's claims.

 By letter dated September 30, 1985, defendant Constance Horner wrote the local committee to advise it that "long-standing CFC policy" prohibited dual listings of the kind the local had permitted. DX 2 at 1. Citing a 1983 OPM document entitled CFC Memorandum 83-3, defendant wrote that "the guidance on this matter issued by OPM in 1983 remains intact notwithstanding several changes in other aspects of the CFC groundrules." Id. In view of the fact, however, that the 1985 CFC brochures had been printed and the campaign was about to begin, defendant stated that she would not require a reprinting of all brochures but warned that future compliance with OPM's policy would be expected. Id. at 2.

 In April, 1986, OPM published in the Federal Register the final regulations that were to govern the 1986 CFC. Among them was a regulation proscribing dual listing, which provided that:

 
No voluntary agency shall be listed more than once on the Contributor's Information Leaflet. Listing of both a voluntary agency and its local affiliate or other subunit is prohibited even if the local affiliate or other subunit applies separately for admission into a local Campaign. The parent voluntary agency shall determine whether the parent of its local affiliate or other subunit shall be listed.

 5 C.F.R. ┬ž 950.403(b) (1986). This prohibition was reiterated in CFC Memorandum 86-4, which cited the April, 1986 regulation. Shortly thereafter, plaintiff submitted its application for admission to the local 1986 campaign, but the local committee took no action on the application.

 On July 2, 1986, the President signed into law P. L. 99-349, the Urgent Supplemental Appropriations Act of 1986. Section 204 of the Act, the so-called Hoyer Amendment, states:

 
None of the funds appropriated by this Act or any other Act shall be used for preparing, promulgating or implementing new regulations dealing with organization participation in the 1986 Combined Federal Campaign other than repromulgating and implementing the 1984 and 1985 Combined Federal Campaign regulations, unless such regulations provide that any charitable organization which participated in any prior campaign shall be allowed to participate in the 1986 campaign.

 On August 19, 1986, OPM issued CFC Memorandum 86-6, in which it stated that it would conduct the upcoming CFC in accordance with regulations published in the Federal Register on August 18, 1984. Unlike the April, 1986 regulations, the 1984 regulations contain no prohibition on dual listings.

 In response to CFC Memorandum 86-6, the local coordinating committee notified all applicants that they would have to reapply in order to participate in the 1986 campaign. PPMW submitted its second application on September 4, 1986. Twelve days later, the Advisory Committee to the local coordinating committee informed plaintiff at a public meeting that its application had been denied. The reason given for PPMW's exclusion was that OPM regulations prohibited a national organization and its local affiliate from participating in the same local campaign, and that because PPFA had been admitted, PPMW had to be excluded. Plaintiff filed an administrative appeal of this decision on September 17, 1986, and simultaneously contacted OPM to determine if the printing of brochures could be delayed until its appeal was resolved. At 6:00 p.m. on the evening of the 17th, OPM advised counsel for plaintiff that the printing had begun. Plaintiff brought this suit the following morning.

 The parties devoted much of their argument at the hearing to the relationship of PPMW and PPFA, and whether or not similarly situated national organizations and their local affiliates were treated comparably by the local committee. The Court finds it unnecessary to address these contentions, however, as this case is controlled by the terms of the Hoyer Amendment itself. Section 204 makes clear that, except for regulations that simply repromulgate or implement the 1984 or 1985 CFC regulations, no new regulations may be prepared, promulgated or implemented "unless such regulations provide that any charitable organization which participated in any prior campaign shall be allowed to participate in the 1986 campaign." It is undisputed that PPMW participated in last year's campaign. The 1986 regulations, published in April, prohibited dual listings, while the 1984 regulations contained no such prohibition. Since the 1986 regulation on dual listings is not simply a repromulgation or re-implementation of the 1984 regulations, and because this new regulation does not provide for the renewed participation of PPMW, but rather operates to exclude this prior participant, it is invalid under the Hoyer Amendment.

 Defendant argues in response that the prohibition on dual listings is not actually new at all, but is instead a longstanding policy of at least three years' vintage. She cites, as evidence of the prohibition's longevity, the 1983 memorandum, CFC Memorandum 83-3; her own letter of September 30, 1985, which refers to the aforementioned document; and a letter from OPM's general counsel to the chairman of the local committee, written the morning of September 18, 1986, the very day plaintiff initiated this action and its merits were argued. None of these documents, however, provide the support defendant would have the Court find in them. Indeed, they unmistakably demonstrate that no "regulation" barred dual listings in 1983, 1984 or 1985. Rather, OPM had a "policy" against such listings. CFC Memorandum 83-3 is itself not a regulation but a memorandum on "CFC Administrative and Policy Matters." DX 3 at 1 (emphasis supplied). It simply states that the "listing and participation of the national organization and its affiliate . . . is not permitted," id. at 2, but cites no regulatory or statutory authority for such a prohibition. Defendant's September 30, 1985 letter characterizes CFC Memorandum 83-3 as " written guidance issued . . . in 1983" that embodies OPM's "long-standing CFC policy." DX 2 at 1 (emphasis supplied). The letter warns that ...


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