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 "the policy at issue here is vitally important, and the integrity of that policy. . . must be firmly upheld." Id. at 2 (emphasis supplied). Finally, General Counsel Hewitt's letter cites CFC Memorandum 83-3 as the agency's articulation of the dual listings prohibition and states that "OPM policy has not changed." DX 1 (emphasis supplied).
The difference between an administrative "policy" and a "regulation" is not merely one of semantics. Regulations are promulgated after public notice and comment, and final regulations are codified in the Code of Federal Regulations. The policy defendant relies on was not the subject of such procedures, and appeared nowhere in the Code of Federal Regulations until April, 1986.
As such, it is a "new regulation" within the meaning of section 204, and, because it excludes a past CFC participant, it is invalid under that Act.
Although defendant did not advance such an argument at the hearing, in a further consideration it might also be contended that the prohibition is not now a "regulation" but a policy that, as such, falls outside the purview of section 204, which prohibits certain new regulations but says nothing of policies, new or old. Such an argument would be unavailing for two reasons. First, the plaintiff stated, and defendant did not deny, that the "reason given for [PPMW's exclusion] was that the OPM regulations reflected in OPM's CFC Memorandum No. 86-4 prohibited a national organization and its local affiliate from participating in the same local campaign . . . ." Complaint at para. 18 (emphasis supplied). CFC Memorandum 86-4 simply reiterated the prohibition set out at 5 C.F.R. § 950.403(b), and cited that regulation as authority for the prohibition. Thus, as a factual matter, plaintiff's exclusion was accomplished through the 1986 regulation -- a "new regulation" within the meaning of section 204. In addition, even if plaintiff's exclusion had not been justified by recitation of the 1986 regulations, and instead had been defended on the basis of a policy, whether new or old, such an exclusion would still be invalid. OPM is not free to do through formal or informal policy that which it is prohibited from doing by regulation. Congress stated that the 1986 CFC is to be governed by the 1984 and 1985 regulations. Those regulations contained no prohibition on dual listings. OPM's attempt to promulgate such a prohibition in April 1986 was blocked by section 204. The agency cannot now accomplish the same end by arguing that it is simply implementing a longstanding policy.
For all the foregoing reasons the Court finds that PPMW's exclusion from the local 1986 CFC violates section 204 of the Urgent Supplemental Appropriations Act.
Accordingly, it is this 19th day of September, 1986
ORDERED that the defendant and her agents, including the Local Coordinating Committee of the Combined Federal Campaign of the National Capital Area, are enjoined from denying PPMW admission to the 1986 Combined Federal Campaign of the National Capital Area and excluding PPMW from the brochure for the Campaign of the National Capital Area.
This case stands dismissed.