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NATIONAL CONFERENCE ON MINISTRY TO THE ARMED FORCES v. JAMES

August 27, 2003

NATIONAL CONFERENCE ON MINISTRY TO THE ARMED FORCES D/B/A MINISTRY TO THE ARMED FORCES AND VETERANS AFFAIRS CHAPLAINCY, PLAINTIFF,
v.
KAY COLES JAMES, DEFENDANT.



The opinion of the court was delivered by: Reggie B. Walton, District Judge

MEMORANDUM OPINION

Currently before the Court is the Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction [#3]. For the reasons set forth below, plaintiff's motion is denied.

I. Factual Background*fn1

The Combined Federal Campaign ("CFC")*fn2 is a nationally operated campaign that solicits charitable contributions from "federal civilian employees, postal employees, and uniformed service personnel . . . via voluntary payroll deductions [ Page 1]

and otherwise. . . ." Compl. ¶ 7*fn3. The CFC is the sole authorized means by which charitable organizations may solicit federal employees for contributions. 5 C.F.R. § 950.102. It is overseen by the Director of the Office of Personnel Management ("OPM"), who is responsible for "determin[ing] which organizations among those that apply qualify to be part of the national list . . ." that employees utilize in determining to which organizations they want to make donations*fn4. Memorandum of Points and Authorities in Support of Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction ("Pl.'s Mem.") at 2; 5 C.F.R. § 950.201(c).

Plaintiff, the National Conference on Ministry to the Armed Forces ("NCMAF"), is a non-profit Virginia corporation, which describes itself as "a unique and diverse association of over 250 religious faith groups and denominations that recruits, endorses and counsels American clergy persons to serve as Army, Air Force, Navy, Marines, or Coast Guard chaplains and VA hospital chaplains. . . ." Compl. ¶¶ 4-5. NCMAF performs charitable work by providing "professional pastoral guidance and support to military and VA chaplains located in the United States and at military installations around the world." Id. Specifically, it, inter alia, recruits and provides training for military chaplains and conducts activities related to the delivery of [ Page 2]

faith based services to members of the military community. Id., Ex. A (2003 National Organization Universal Application Form, Attachment A at 1-2). NCMAF is a member in good standing of the Military, Veterans & Patriotic Service Organizations of America ("MVP"), a national federation. Id. ¶ 6*fn5. Pursuant to 5 C.F.R. § 950.301(c), once an organization has been accorded federation status, it need not annually submit the applications of each of its member organizations to OPM for participation in the CFC. However, for 2003, "OPM requested that MVP send to it for auditing complete applications for a sample of eight of the MVP organizations. The application for NCMAF was among those requested." Defendant's Memorandum in Opposition to Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction ("Def.'s Opp'n") at 7. As required by 5 C.F.R. § 950.202, plaintiff included with its application "Attachment A," wherein it described those activities that "it provides or conducts . . . in 15 or more different states. . . ." Compl. ¶ 11. MVP submitted its list of eligible member organizations for participation in the 2003 CFC on January 27, 2003. Id. ¶ 12.

On April 10, 2003, the president of MVP, Linda Mansfield, received a letter from Mara Patermaster, Director of OPM's Office of CFC Operations, informing her that NCMAF had been denied participation in the CFC because:

Attachment A of [its] application . . . did not include [ Page 3]

sufficient information to support a claim that the organization provided or conducted real services, benefits, assistance or program activities in 15 or more different states or a foreign country over the three-year period immediately preceding January 2003. A clear showing must be made of the actual services, benefits, assistance or activities provided in each state or foreign country. Providing only the location of where organization members reside does not constitute a sufficiently clear showing to support eligibility.
Compl., Ex. B (Letter to Linda Mansfield from Mara Patermaster dated April 10, 2003). On April 28, 2003, Ms. Mansfield appealed the denial of NCMAF's application to participate in the 2003 CFC, which was denied in a letter dated June 19, 2003, by OPM's Deputy Director, Dan G. Blair. Id. ¶ 14; see also Compl., Ex. D (Letter to Linda Mansfield from Dan G. Blair dated June 19, 2003). Mr. Blair justified sustaining the decision denying NCMAF's application because NCMAF's Attachment A was not sufficient:
The purpose of Attachment A of the CFC application is to clearly identify national and/or international services, benefits, assistance or program activities in 15 or more states or one foreign country. It is our view that the organization did not do so.
Id. (emphasis in the original).

On June 30, 2003, NCMAF sent a letter to OPM, requesting that the June 19 decision be reconsidered. Compl. ¶ 16. Several days later, NCMAF's attorney contacted OPM's general counsel, Mark Robbins, to indicate that NCMAF would be willing to provide any additional information needed by OPM for inclusion in the [ Page 4]

2003 CFC. Id. Mr. Robbins allegedly*fn6 agreed that NCMAF could submit additional materials regarding the services it provides, which would allow OPM to reconsider it for participation as a 2003 CFC charity. Id. NCMAF was purportedly told it would have to submit any additional information for consideration "immediately." Id. ¶ 17. The next day, NCMAF submitted additional information, which it believes "unequivocally demonstrated that NCMAF met the requirements to participate in the 2003 CFC." Id. On July 23, 2003, in response to NCMAF's attorney's inquiry, Mr. Robbins allegedly stated that the additional information submitted by NCMAF would be reviewed by the CFC Appeals Board on Thursday, July 24, 2003. Id. However, despite these alleged assurances from Mr. Robbins, on July 28, 2003, Susan Whitman, a staff attorney at OPM, informed NCMAF's attorney that "OPM had decided that NCMAF would not be allowed to participate in the 2003 CFC." Id. ¶ 18. Contrary to what plaintiff claims Mr. Robbins represented, Ms. Whitman did not confirm nor deny whether the additional materials submitted by NCMAF had been reviewed by the CFC Appeals Board; she merely reiterated that OPM had decided to adhere to its June 19, 2003, determination. Id. Thereafter, NCMAF contacted Ms. Patermaster regarding OPM's decision. Id. Ms. Patermaster [ Page 5]

apologized for NCMAF having been led to believe that its additional materials would be reviewed. Nonetheless, she "claimed that OPM's final decision with respect to NCMAF's application was necessary to protect the integrity of the CFC review process[,]" although, "in her view, the additional information submitted by NCMAF on July 17, 2003, met the CFC requirements." Id.

OPM posted the 2003 National List of Participating Agencies on the OPM website on or about July 31, 2003. Id. ¶ 20. After July 31, 2003, local combined federal campaigns began printing brochures for the 2003 CFC to distribute to federal employees on or after September 1, 2003. Id. On July 15, 2003, prior to posting the list of participating agencies, three other organizations that had been denied participation in the 2003 CFC, "the National Greyhound Foundation, Inc., Vegan Outreach and Missionary Care Services International, brought suit separately against OPM." Id. ¶ 19. These organizations had been denied participation, according to plaintiff, on the basis that they "failed to include sufficient information to support a claim that [they] provided or conducted real services, benefits, assistance or program activities in 15 or more different states as required by 5 C.F.R. § 950.202." Id. Each of these cases was settled, which resulted in each of these organizations being permitted to participate in the 2003 CFC. Id. Plaintiff alleges that OPM failed to address why these organizations were ultimately permitted to participate in the 2003 CFC and NCMAF was not. Id.

On August 15, 2003, NCMAF filed its complaint for declaratory and injunctive relief and its motion for a temporary restraining order and preliminary injunction. [ Page 6]

Plaintiff argues that OPM's exclusion of NCMAF from the 2003 CFC was arbitrary and capricious and in violation of NCMAF's First Amendment rights. Pl.'s Motion for a Temporary Restraining Order and Preliminary Injunction ("Pl.'s Mot.") at 2. Plaintiff seeks a temporary restraining order ("TRO") "preventing defendant from excluding NCMAF from the 2003 CFC pending a hearing on the merits by this court[.]" Id. ¶ 25(A). In addition, plaintiff seeks a preliminary, as well as a permanent "injunction in the nature of mandamus, requiring defendant to include NCMAF in the 2003 CFC," as well as a declaratory judgment declaring that the defendant erred in denying NCMAF's application to participate in the 2003 CFC. Id. ¶¶ 25(B)-(D).

II. Discussion

The Court must apply the standard four-part test in determining whether or not to grant plaintiff the injunctive relief it is requesting. This test requires the Court to weigh four factors: (1) whether the moving party has demonstrated that there is a substantial likelihood that it will prevail on the merits of its claims; (2) whether the moving party has shown that it would be irreparably harmed if injunctive relief is not awarded; (3) whether the issuance of injunctive relief would not "substantially harm other parties interested in the proceedings," and (4) whether awarding the relief is in the public interest. Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977) (citing Virginia [ Page 7]

Petroleum Jobbers Assoc. v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958))*fn7. These [ Page 8]

factors should be balanced against one another and, "[i]f the arguments for one factor are particularly strong, an injunction may issue even if the arguments in other areas are rather weak." CityFed Financial Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995). Thus, injunctive relief may be warranted "where there is a particularly strong likelihood of success on the merits even if there is a relatively slight showing of irreparable harm." Id. However, a party seeking injunctive relief must "demonstrate at least `some injury' . . . since `[t]he basis for injunctive relief in the federal courts has always been irreparable harm.'" Id. (citations omitted). In addition, when granting mandatory injunctive relief, i.e., an injunction that "`would alter, rather than preserve, the status quo by commanding some positive act — the moving party must meet a higher standard than in the ordinary case by showing `clearly' that he or she is entitled to relief or that `extreme or very serious damage' will result from the denial of the injunction.'" Columbia Hosp. for Women Foundation, Inc. v. Bank of Tokyo-Mitsubishi, Ltd., 15 F. Supp.2d 1, 4 (D.D.C. 1997), aff'd, 159 F.3d 636 (D.C. Cir. 1998) (quoting Phillip v. Fairfield Univ., 118 F.3d 131, 133 (2d Cir. 1997)). A district court should not issue a mandatory preliminary injunction "`unless the facts and law clearly favor the moving party.'" Id. (citations omitted). [ Page 9]

In addition, in this case, which has been brought pursuant to the Administrative Procedure Act ("APA"), the Court must decide, pursuant to 5 U.S.C. § 706(2)(A), whether "the actual choice made was not `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" 5 U.S.C. § 706(2)(A); MD Pharm., Inc. v. DEA, 133 F.3d 8, 16 (D.C. Cir. 1998). In reaching its conclusion regarding this question, "the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971) (citation omitted). Although the Court must make a detailed inquiry into the facts and circumstances underlying the [Director's] actions, "the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Id. at 417. For example, it is well established that "[a]n agency's interpretation of its own regulations is entitled to deference `unless it is plainly erroneous or inconsistent with the regulation.'" ...


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