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,
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.
In 1985, plaintiff applied for the first time for admission to the National Capital Area, or local, CFC. At the eligibility committee meeting, an OPM representative objected to PPMW's inclusion on the grounds that the listing of both PPMW and PPFA would violate the "rule" against dual listing of related charitable entities. The OPM representative stated that while the regulations were silent on the question of dual listings, it was OPM's preference to prohibit them. Affidavit of Lauren Selden at para. 4, PX 1. The Local Federal Coordinating Committee of the National Capital Area CFC, which administers the local campaign, rejected OPM's objection, stating that there was no such rule and that other affiliates of national organizations were admitted. Id. at para. 5. The local committee directed that both PPMW and PPFA be included, and both subsequently participated in the 1985 CFC.
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. § 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.
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 ...