727 F.2d 1247 (D.C. Cir. 1984), 83-1822, NAACP Legal Defense & Educational Fund, Inc. v. Devine

Docket Nº:83-1822.
Citation:727 F.2d 1247
Party Name:NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., et al. v. Donald J. DEVINE, Director, United States Office of Personnel Management, Appellant.
Case Date:February 17, 1984
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1247

727 F.2d 1247 (D.C. Cir. 1984)



Donald J. DEVINE, Director, United States Office of

Personnel Management, Appellant.

No. 83-1822.

United States Court of Appeals, District of Columbia Circuit

February 17, 1984

Argued Nov. 17, 1983.

As Amended .

Page 1248

Appeal from the United States District Court for the District of Columbia (Civil Action No. 83-0928).

Alfred R. Mollin, Atty. Dept. of Justice, Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., Stanley S. Harris, U.S. Atty., Washington, D.C. (at the time the brief was filed) and Anthony J. Steinmeyer, Atty., Dept. of Justice, Washington, D.C., were on the brief for appellant.

Charles Stephen Ralston, New York City, with whom James M. Nabrit III, New York City, Elaine R. Jones, Washington, D.C., Barry L. Goldstein, Brent Simmons, William L. Robinson, New York City, Norman J. Chachkin, Stuart J. Land, Boris Feldman, Robert T. Coulter, Walter B. Slocombe, M. Carolyn Cox and Douglas B. Jordan, Washington,

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D.C., were on the brief, for appellees.

Mozart G. Ratner and Allison Beck, Washington, D.C., were on the brief, for amicus curiae Intern. Ass'n of Machinists and Aerospace Workers, AFL-CIO, urging reversal.

Before WRIGHT, EDWARDS and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

Dissenting Opinion filed by Circuit Judge STARR.

HARRY T. EDWARDS, Circuit Judge:

Charitable solicitation of Federal employees or military personnel at their work-places or duty stations is conducted exclusively through an annual fund raising drive called the Combined Federal Campaign (the "CFC" or the "campaign"). On February 10, 1983, the Government issued an executive order excluding legal defense funds from future participation in CFCs. See Exec.Order No. 12,404, 48 Fed.Reg. 6,685 (1983). The NAACP Legal Defense and Educational Fund, Inc. ("NAACP LDF") and six other legal defense funds, 1 all recognized by the Government as lawful charitable organizations, brought suit arguing that the decision to exclude them from the CFC violated their First and Fifth Amendment rights. The District Court agreed and, by summary judgment, permanently enjoined Donald Devine, Director of the Office of Personnel Management ("OPM"), from excluding the appellees from participating in CFCs on the basis of Executive Order 12,404.

Because we find the exclusion of LDFs from the CFC to be patently capricious and unreasonable, we agree with the result reached by the District Court. We therefore affirm.


  1. The Combined Federal Campaign

    As the appellant has previously acknowledged, "[i]t has been long-standing policy of the Federal Government to cooperate with and assist voluntary health and welfare agencies in soliciting funds for worthy causes from Federal personnel." Memorandum from Donald J. Devine to David A. Stockman 1 (Oct. 22, 1981) (hereinafter "Devine Memo II"), reprinted in I Joint Appendix 70 (hereinafter "J.A."). Prior to the creation of the CFC, this policy was implemented essentially in an ad hoc manner: "[t]he heads of some Federal facilities permitted no solicitations whatsoever; at other Federal worksites, no restrictions were imposed, and it was not uncommon for a collection to be taken up each week on behalf of one charity or another." Hearings Before the Subcomm. on Manpower and Housing of the House Comm. on Governmental Operations 29 (1983) (statement of Donald J. Devine) (hereinafter "Devine testimony"), reprinted in II J.A. 397.

    The early haphazard approaches to solicitations for charitable causes proved to be largely unsatisfactory. Charities "could not understand why they were allowed to solicit in some Federal establishments and not in others, nor did they appreciate the fact that some charities seemed to have the support of Federal management" while others did not. Id. Federal employees were sometimes confused or upset at being subjected to repeated solicitations. Id. The situation created an "intolerable administrative burden for Federal officials," Devine Memo II, supra, at 1, reprinted in I J.A. 70, as well as "an increasingly chaotic situation in Federal offices." Memorandum from Donald J. Devine to Craig L. Fuller 2 (Feb. 2, 1983) (hereinafter "Devine Memo III"), reprinted in I J.A. 107.

    In 1961, "in order to control and simplify the process of charitable solicitation in the Federal workplace," President Kennedy

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    created the CFC. Id. He "directed that all ad hoc solicitations be ended, and that worthy charities be permitted to solicit in the Federal workplace through a single, annual drive combining all participating [charitable] agencies." Devine testimony, supra, at 29-30, reprinted in II J.A. 397-98. To implement this plan, President Kennedy issued Executive Order 10,927, instructing that arrangements be made "for such national voluntary health and welfare agencies and such other national voluntary agencies as may be appropriate to solicit funds from Federal employees and members of the armed forces at their places of employment or duty stations." Exec.Order No. 10,927, Sec. 2(a), 3 C.F.R. 454 (1959-1963 Compilation).

    The mechanics of the CFC have been described at length in other judicial opinions, see NAACP Legal Defense and Educational Fund, Inc. v. Devine, 560 F.Supp. 667 (D.D.C.1983) ("NAACP LDF II" ); NAACP Legal Defense and Educational Fund, Inc. v. Campbell, 504 F.Supp. 1365 (D.D.C.1981) ("NAACP I" ); therefore, we will highlight only those features that are necessary to understand the dispute at hand. The CFC is governed by the Director of the OPM, who makes all "basic policy, procedural, and eligibility decisions for the program." 5 C.F.R. Sec. 950.201(a) (1983). Normally, there is bifurcated responsibility for the CFC drive in each participating locality. A designated private voluntary organization (the "Principal Combined Fund Organization" or "PCFO") "will raise money from Federal employees and administer the local campaign." Id. Sec. 950.211(e). A local Federal coordinating committee oversees the PCFO, and is authorized to make decisions regarding administration of the local campaign (subject to those constraints imposed by the Director). Id. Secs. 950.211(a), 950.509. The PCFO is reimbursed for its administrative expenses from the funds raised for the participating charities. Id. Sec. 950.509(e); appellant's brief, p. 13.

    Each local campaign consists of a "single, annual drive," conducted in the fall. 5 C.F.R. Sec. 950.103(b), (c) (1983). The Federal agencies involved conduct their "own solicitation among [their] employees, using campaign materials, supplies, and speakers furnished by or through" the PCFO. Id. Sec. 950.103(d). Federal employees are encouraged to participate in this and other CFC responsibilities undertaken by the Federal Government "to the extent consistent with Federal agency policy and prudent use of official time. They are encouraged also to devote private time to such volunteer work." Id. Sec. 950.105.

    An information leaflet is distributed to each potential contributor. Id. Sec. 950.521(c). This leaflet is printed and supplied by the PCFO, id. Sec. 950.521(a), and is accompanied by a brochure listing each charity (or "voluntary agency") approved for participation in the campaign and providing "a brief statement of about 30 words on [each charity's] programs." Id. Sec. 950.521(e)(2)(i). The content of this statement is provided by the participating charities and/or the PCFO, subject to approval of the local Federal coordinating committee. 2

    Federal employees who choose to contribute can either (1) designate specific participating charities for receipt of the contribution or (2) make undesignated contributions. Undesignated contributions are pooled and deemed designated to the local PCFO, id. Sec. 950.513(a), which can then distribute the funds "to any participant in the local CFC." 47 Fed.Reg. 29,497 (1982).

  2. Exclusion of Legal Defense Funds From the CFC

    In 1980, the NAACP LDF and the Puerto Rican Legal Defense and Education Fund,

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    Inc. ("PR LDF") applied to participate in the CFC, but the Government refused this request, arguing that these LDFs did not provide direct services to persons in the fields of health and welfare services. See Appellant's brief, p. 6. 3 This exclusion was challenged in NAACP I, where the District Court agreed with the plaintiffs that the "direct services" requirement did "not have the precision necessary to comport with [the First Amendment's] requirements." 504 F.Supp. at 1368. The court also challenged the suggestion that the plaintiffs did not provide direct services to the needy, pointing out that:

    The record is replete with the results of plaintiffs' work, indicating that law suits by plaintiffs have provided millions of dollars in back pay and benefits, and invaluable other "services" such as increased training opportunities, additional promotions, improved school programs, and better hospital facilities. Apart from their litigation activities, each plaintiff also provides "direct services" through scholarship programs and education efforts.

    Id. 4 The court enjoined the defendant from using the direct services requirement as a basis for rejecting pending or future applications from the plaintiffs, and encouraged the "government officials responsible for the program to re-examine the basic premises on which [the CFC] was established so that more acceptable standards [could] be developed." Id. at 1369.

    In June 1981, the appellant circulated a memorandum discussing the NAACP I opinion and eligibility for the 1981 CFC. See Memorandum from Donald J. Devine to Department and Agency Fund-Raising Program Coordinators and Chairmen, Field Coordinating Groups (June 9, 1981) (hereinafter "Devine Memo I"), reprinted in I J.A. 52. In his review of so-called "borderline cases," Devine...

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