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PLANNED PARENTHOOD OF METRO. WASHINGTON

July 20, 1988

PLANNED PARENTHOOD OF METROPOLITAN WASHINGTON, D.C., INC., et al., Plaintiffs,
v.
CONSTANCE HORNER, Director, United States Office of Personnel Management, Defendant


Joyce Hens Green, United States District Judge.


The opinion of the court was delivered by: GREEN

JOYCE HENS GREEN, UNITED STATES DISTRICT JUDGE.

 This case features yet another imbroglio arising out of the administration of the Combined Federal Campaign (CFC or Campaign). *fn1" The origin of this latest legal altercation is the issuance of a regulation by the Office of Personnel Management (OPM) that would bar an organization granted national eligibility and any one of its affiliates from dual listing in CFC brochures as possible recipients of Campaign funds. Because the Court concludes, for the reasons articulated below, that this regulation is inconsistent with a statute passed by Congress, a preliminary injunction will be entered barring defendant from implementing it.

 I. Background

 Established by President John F. Kennedy in 1961, the CFC is the sole means by which government employees, both civilian and military, may be solicited for charitable donations while at their place of work. Federal workers may donate to any organization listed as eligible to participate in the Campaign and, upon request, contributions are either made directly to the Campaign or withheld from their paychecks. Due to the generosity of government employees, the CFC has now grown to the point where more than 7000 organizations receive approximately $ 150 million in contributions.

 Administration of the CFC proceeds on a bifurcated basis. Ultimate responsibility is vested in the Director of OPM, who assures that the objectives of the Campaign are achieved and acts as final arbiter of any disputes that arise. The bulk of CFC activity, however, takes place at the local level. The Director has established over 500 local CFCs, each of which is supervised by a Local Federal Coordinating Committee (LFCC). *fn2" The LFCCs, in turn, select Principal Combined Fund Organizations (PCFOs) to handle the daily operational tasks of each local Campaign, such as preparing brochures and collecting contributions. Participation in the CFC is similarly divided, with differing standards for national and local eligibility. At the national level, the Director selects a number of organizations that are eligible to participate in each of the local CFCs conducted throughout the country. To obtain local eligibility, an organization must apply to, and be approved by, the LFCC for the particular local Campaign in which it seeks to participate.

 Plaintiff Planned Parenthood Federation of America, Inc. (PPFA) is a nonprofit, private organization that provides family planning services on a local, national and international scale. *fn3" Like many other charitable federations, PPFA is linked to a number of local, independent affiliates. One such local affiliate of PPFA is plaintiff Planned Parenthood of Metropolitan Washington, D.C., Inc. (PPMW). Both PPFA and PPMW have taken part in the Campaign during the last several years, PPFA as a national organization and PPMW locally within the National Capital Area CFC.

 As noted above, this case concerns a regulation promulgated by OPM in May 1988 that would prohibit a national organization (such as PPFA) and one of its affiliates (such as PPMW) from simultaneously appearing on the list of eligible organizations distributed to federal employees in their local CFCs (hereinafter referred to as the "dual listing regulation"). This regulation was not, however, the first time that OPM has attempted to prohibit dual listing and, because the agency's prior efforts in this regard directly relate to the issues presented in the instant lawsuit, they will be briefly recounted.

 PPMW first applied for admission to the National Capital Area CFC in 1985. Declaring that an OPM "rule" prohibited listing an affiliate and its national organization, an agency official objected to PPMW's application. The LFCC, however, rejected this objection because it found that no such rule existed and, after the Director of OPM refused to overturn that determination, PPMW participated in the 1985 Campaign. In April 1986, OPM published a dual listing prohibition among regulations that it issued to govern the 1986 CFC. On July 2, 1986, however, the President signed the Urgent Supplemental Appropriations Act of 1986, Pub. L. No. 99-349. Section 204 of that statute, known as the Hoyer Amendment, prohibited OPM from

 
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.

 Based on the dual listing regulation, PPMW was excluded from the 1986 Campaign, and it brought suit to challenge OPM's actions. See Planned Parenthood of Metropolitan Washington, D.C., Inc. v. Horner, 694 F. Supp. 970(D.D.C.1986) (PPMW I). Explicitly finding that the 1984 regulations contained no ban on dual listing, this Court held that OPM's 1986 dual listing proscription violated the Hoyer Amendment because it was "not simply a repromulgation or reimplementation of the 1984 regulations" and because, if implemented, it would exclude PPMW (a prior Campaign participant). Id. at 5. Accordingly, OPM was enjoined from enforcing the dual listing ban.

 The parallels between PPMW I and the instant case are striking. On December 22, 1987, the President signed into law the Treasury, Postal Service and General Government Appropriations Act for 1988 (the Act). *fn4" In Section 618 of the Act, Congress for the first time set forth its own criteria to govern the CFC. *fn5" Section 618(a) states that no funds may be used in

 
preparing, promulgating, or implementing any regulations relating to the Combined Federal Campaign if such regulations are not in conformance with subsection (b).

 A number of provisions are then set forth in Section 618(b) relating to the CFC; two are particularly relevant for present purposes. Section 618(b)(1)(B) states:

 
Any requirements for eligibility to receive contributions through the Combined Federal Campaign shall . . . remain the same as the criteria in the 1984 regulations, except as otherwise provided in this section.

 In addition, Section 618(b)(1)(C)(i) provides that

 
any voluntary agency or federated group which was a named plaintiff as of September 1, 1987, in a case brought in the United States District Court for the District of Columbia, and designated as Civil Action No. 83-0928 or 86-1367. shall be considered to have national eligibility.

 On May 26, 1988, OPM issued final regulations to govern future administration of the Campaign. See 53 Fed. Reg. 19,146 et seq. Section 950.402(b) of those regulations contains a ban on dual listing. It states:

 
No voluntary agency or federation may be listed in both the national and local lists. The listing of both a national voluntary agency and its local affiliate or other subunit is prohibited even if the local affiliate or other subunit applies separately for admission to the local campaign. The national parent agency shall determine whether it or its local affiliate or other subunit will be listed. If the national parent agency applies for the national list then it will be presumed, unless it authorizes in writing that its local affiliate be listed instead of the national parent agency, that the national parent agency has determined that its local affiliates and subunits will not be included in local CFCs. Similarly-named local agencies may be listed provided that the LFCC determines that each delivers services to distinct geographical areas. *fn6"

 On June 27, 1988, plaintiffs filed this lawsuit contending that OPM's latest dual listing provision violates Section 618. Although PPFA and PPMW are the named plaintiffs, PPFA also brought this action on behalf of all of its local affiliates other than PPMW. Complaint para. 4. Concurrently with the filing of their complaint, plaintiffs moved for a preliminary injunction. Because of time deadlines imposed by the Campaign, *fn7" expedited briefing was ordered. Defendant Constance Horner, sued in her official capacity as OPM Director (and also referred to as "OPM"), has filed an opposition to plaintiffs' motion, and plaintiffs have submitted a reply brief. In addition, the parties presented oral arguments at a hearing on July 15, 1988. For the reasons outlined below, the Court finds that plaintiffs are entitled to the relief that they seek.

 II. Discussion

 A party seeking preliminary injunctive relief, must demonstrate: (1) a substantial likelihood of success on the merits; (2) that it will suffer irreparable harm if preliminary relief is denied; (3) that, if an injunction is granted, no injury will befall other interested parties; and (4) that the public interest favors entry of the requested relief. See Population Institute v. McPherson, 254 U.S. App. D.C. 395, 797 F.2d 1062, 1078 (D.C. Cir. 1986) (per curiam); Wisconsin Gas Co. v. FERC, 244 U.S. App. D.C. 349, 758 F.2d 669, 673-74 (D.C. Cir. 1985) (per curiam); Foundations on Economic Trends v. Heckler, 244 U.S. App. D.C. 122, 756 F.2d 143, 151 (D.C. Cir. 1985); Washington Metropolitan Transit Commission v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 559 F.2d 841, 843 (D.C. Cir. 1977). These factors are addressed seriatim.

 A. Success on the Merits

 Plaintiffs' argument on the merits is straightforward. They observe that Section 618(b)(1)(B) requires that, except as provided in Section 618, CFC eligibility criteria must remain the same as the 1984 regulations. They then point out that the 1984 CFC regulations do not contain a dual listing provision. Section 618 is violated, they conclude, because the current ban on dual listing attempts to impose an eligibility requirement not included in the 1984 regulations. *fn8"

 At the outset, the Court unequivocally agrees that Section 618 must be viewed in its totality for, as Justice Scalia recently observed, "statutory construction . . . is a holistic endeavor." United Savings Association of Texas v. Timbers of Inwood Forest Associates Ltd., 484 U.S. 365, 108 S. Ct. 626, 630, 98 L. Ed. 2d 740 (1988). Resort to that cardinal principal of interpretation, however, does not aid defendant's cause.

 OPM asserts that Section 618 erects "a clear line of demarcation" between national and local organizations, Opposition at 6, with differing standards of eligibility being applied by different decisionmakers. It highlights several provisions in Section 618 that advance this national/local dichotomy, see id. at 10-11, and argues that, because the statute is silent with respect to dual listing, an ambiguity exists that justifies the submission of extrinsic evidence regarding its meaning.

 OPM's argument must be rejected. Congress spoke, sharply and distinctly, in plain and unmistakable terms, when it enacted Section 618, mandating that eligibility requirements "shall . . . remain the same as the criteria in the 1984 regulations, except as otherwise provided in this section." Section 618(b)(1)(B) (emphasis added). In the remainder of Section 618, Congress proceeded to set forth specific, detailed and comprehensive requirements to cover the CFC. *fn9" Yet nowhere in the precise terms of Section 618 did Congress legislate with respect to dual listing. Thus, according to the clear command of Section 618(b)(1)(B), the 1984 regulations -- which did not prohibit dual listing -- must apply.

 Moreover, nothing in the provisions of Section 618 cited by defendant mandate a ban on dual listing of a national organization and one of its affiliates. Although Section 618(b)(3)(A), for example, does require that determinations of national eligibility be made by the Director of OPM and those relating to local eligibility at the local level, this change in the process by which the Campaign is run does not compel the substantive criterion that OPM urges. Equally unpersuasive are the other provisions of Section 618 relied on by defendant. *fn10" And, as plaintiffs point out, see Reply Brief at 4-5, different substantive criteria have been applied in the past to determine the eligibility of national and local groups, further weakening defendant's argument that Section 618 somehow worked a complete overhaul of the CFC system.

 The legislative history of Section 618 reinforces this reading of the statute's plain language. Nowhere in these materials does Congress discuss dual listing. Section 618 is, however, mentioned in two places by Congress, and these references shed additional light on its meaning. *fn11" The Conference Report on the Act, for example, states:

 
Subsection (b)(1)(B) requires that any other eligibility criteria shall remain the same as the 1984 regulations except for alterations specifically made in the statute.

 H. Rep. 1173, 100th Cong., 1st Sess. 1173 (1987) (emphasis added). This statement confirms what a plain reading of the statute discloses: that the 1984 regulations were to stay in place except for those changes -- and only those changes -- specifically identified by Congress. In addition, the report of the Senate Appropriations Committee discusses Section 618 at some length. See S. Rep. 160, 100th Cong., 1st Sess. 142-44 (1987). Noting the controversies that have beset the CFC in the last several years, the Committee pointed out that, in the preamble to interim regulations published in May 1987, OPM had identified a number of reforms that it believed would improve the conduct of the annual Campaigns but which it was unable to implement due to legislation requiring OPM to repromulgate its 1984 regulations. The Committee therefore added Section 618 in order to

 
expedite the process by breaking the logjam and allowing the reforms identified by OPM to be specifically dealt with in revised CFC regulations for the 1988 CFC.

 Id. at 143. The Report went on to observe that

 
The Committee identifies the reforms that OPM would be allowed to implement in new regulations. For the most part, the reforms are those that were identified by OPM in its preamble to the interim regulations.

 Id. Significantly, neither the language of Section 618 adopted by the Committee nor the preamble to OPM's interim regulations mentions dual listing. *fn12" The legislative history therefore reveals the Congressional intent to implement several discrete changes in Section 618 and to leave the ...


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