NATIVE AMERICA RIGHTS FUND v. REAGAN

USDC Cr. No. 83-1550

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLOMBIA

NATIVE AMERICA RIGHTS FUND,                          FILED
     Plaintiff.                                   JUN 1 1984
                                           JAMES F. DAVEY, Clerk
                     v. 
PRESIDENT RONALD REAGAN, et al.,           Civil Action No. 83-1550
     Defendants.

MEMORANDUM

This matter comes before the court on the motion of three defendants, President Ronald Reagan, David Stockman, and the Office of Management and Budget, ("OMB"), to dismiss this action as against them. They argue that full relief is possible without them being parties to the action, and that their contact with this case is tangential, After careful consideration of the memoranda submitted by the parties as well as the record in this case, the court finds that defendants' motion should be granted,

BACKGROUND

Plaintiff is a non-profit, charitable organization designed to protect the legal rights of Indians and to provide legal representation to individual indians and Indian tribes in court cases of major importance to all Indian people. Plaintiff challenges a provision in the Executive Order that governs the Combined Federal Campaign as well as the regulations that implemented that order.


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President Reagan issued Executive Order 12353 on March 23, 1982, and amended that with Executive Order 12104 on February 10, 1983. Under the provisions of these Executive Orders the Combined Federal Campaign is the exclusive means by which charitable organizations are able to solicit federal employees and military personnel at their places of employment and duty. In order to participate in the CPC, most organizations must apply annually to the Director of OPM for eligibility to participate. ff national eligibility is granted the organization must then demonstrate "a direct and substantial presence in the local campaign community in order to participate in each of the local CFC drives. This "local presence" requirement is restated in Executive Order 12404.

Plaintiff alleges that the Executive Orders and implementing regulations were issued for the purpose, and with the effect, of denying eligibility for participation] in the CFC by the Native American Rights Fund. They further allege that this, violates their First and Fifth Amendment rights.

DISCUSSION

The President of the United States should be subjected to the jurisdiction of the courts as a civil defendant only if plaintiffs cannot obtain complete relief by suing other parties. In other words, it is only when the President is uniquely able to carry out the relief sought in the complaint that he must be joined as a defendant. See Crisafulli v- limon, C.A. No. 76-471


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(D.D.C. May 21, 1976)1 Minnesota Chippewa Tribe v. Carlucci, 358 F. Supp. 913 (D.D.C. 1973).

The recent decision of the Court of Appeals for the District of Columbia Circuit in NAACP Legal Defense & Education Fund v. OPM, 727 F.2d 1217 (D.C. Cir. 1981), makes it clear that full relief with respect to Executive Order 12104 can be obtained by suit solely against the Director of OPM. Plaintiff concedes this point in its opposition to defendants' motion. See Plaintiff's memorandum in opposition to Defendants' notion for a Protective Order and Partial notion to Dismiss at 10 n.5.

This same logic applies to the other non-OPM defendants. There is no need for them to be joined as defendants in this matter because they are superfluous to plaintiff obtaining its desired relief. The participation of certain OPM officials,in the process that led to the implementation of the regulations in question is not of sufficient import to require their presence in this suit.

This court finds, therefore, that the motion of the non-OPM defendants to dismiss plaintiff's complaint as against them should be granted.

There are also two discovery motions pending in this action. The first is a motion by Reagan, Stockman and OMB to stay discovery pending resolution of their motion to dismiss.

Because of the resolution of that motion, the discovery motion


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is dismissed as moot.

The final motion is one for a protective order prohibiting the depositions of Donald J. Devine and Joseph A. Morris, the Director and General Counsel of OPM. After careful consideration of the memoranda submitted by the parties, as well as the arguments of counsel at a status conference held on May 15, 1984, this court finds that plaintiffs have not demonstrated sufficient need to depose these officials. See, e.g., D.C. Federation of Civic Associations vĚ Volpe, 159 F.2d 1231, 1237 (D.C. cit. 1972), Dellinger v- Mitchell, 142 F.2d 782, 787 (D.C. Cir. 1971). Plaintiffs have already deposed subordinate OPM officials who are in charge of the intra-agency appeals process that implements the challenged executive order and regulations. The court finds, therefore, that the depositions of Devine and Morris would be cumulative and unduly burdensome. Fed. R. Civ. P. 26(b)(1). Defendants' motion for a protective order barring these depositions is hereby granted.

An appropriate Order accompanies this Memorandum.

(signed) Thomas A. Flannery
UNITED STATES DISTRICT JUDGE


UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLOMBIA

NATIVE AMERICA RIGHTS FUND,                          FILED
     Plaintiff.                                   JUN 1 1984
                                           JAMES F. DAVEY, Clerk
                     v. 
PRESIDENT RONALD REAGAN, et al.,           Civil Action No. 83-1550
     Defendants.

ORDER

This matter comes before the court on the motion of three defendants, President Ronald Reagan, David Stockman, and the Office of Management and Budget, to dismiss this action as against them, as well as two discovery motions. After careful consideration of the memoranda submitted by the parties the entire record in this case, it is, by the court, this ! st day of June, 1984,

ORDERED that defendants' Ronald Reagan, David Stockman, and the Office of Management and Budget Motion to Dismiss is hereby granted, and it is further

ORDERED that the motion for a stay of discovery is dismissed as moot; and it is further

ORDERED that defendants' motion for a protective order barring the taking of the depositions of Donald J. Devine or Joseph A. Morris is hereby granted,

(signed) Thomas A Flannery
UNITED STATES DISTRICT


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