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AFGE, v. FREEMAN

September 25, 1980

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO et al., Plaintiffs,
v.
R. G. FREEMAN, III, Defendant



The opinion of the court was delivered by: GREENE

This is an action under the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. and 701 et seq., and the Declaratory Judgment Act, 28 U.S.C. § 2201, in which plaintiffs, three individual federal employees and six labor unions representing such employees, request that the Court declare unlawful regulations promulgated by the General Services Administration (GSA) requiring federal employees to pay for the use of parking spaces in facilities controlled by GSA or other federal agencies. Plaintiffs also request the Court to set aside these regulations, enjoin the Administrator of GSA from charging federal employees for parking in federal buildings, and order him to make restitution to the employees for monies paid for such parking.

The challenge to the GSA regulations rests on two grounds: first, that plaintiffs' property interest in free parking was taken from them without due process of law in violation of the Fifth Amendment; and second, that defendant did not issue the regulation in question pursuant to legitimate statutory or other authority and that the resultant agency actions were therefore arbitrary and capricious. *fn1"

 I

 On April 5, 1979, President Carter addressed the Nation on the severe nature of the nation's energy problems. He announced and proposed a number of programs directed towards energy conservation and reduction of the dependence of the United States upon imports of foreign oil. As part of the proposed effort, he stated that

 
Steps will be taken to eliminate free parking for Government employees in order to reduce the waste of energy, particularly gasoline, in commuting to and from work. *fn3"

 Referring to this presidential address, the Office of Management and Budget (OMB) issued Circular No. A-118 establishing a policy of phasing in fees for the use of parking heretofor provided for free to federal employees. This Circular was distributed in draft form to federal agencies and employee unions for comment on April 6, 1979, and it was published in final version on August 17, 1979. 44 Fed.Reg. 48638. Paragraph 9(b) of the Circular cites as authority for the establishment of charges for parking the Federal Property and Administrative Service Act as amended (40 U.S.C. § 490), *fn4" and paragraph 10(a) vests responsibility in GSA for issuing "regulations implementing the provisions of this Circular ...." 44 Fed.Reg. 48640.

 On September 6, 1979, GSA issued Temporary Regulation D-65, prescribing revised policies and procedures for the assignment of federal employee parking spaces and the assessment of charges for the use of such spaces. 44 Fed.Reg. 53161. The only authority cited for the issuance of this regulation is the aforementioned OMB Circular. The regulation has since been implemented, and this action followed.

 II

 Plaintiffs' first argument is that they possess a property interest in free parking, *fn5" that under the due process clause of the Constitution this interest may not be abridged without a hearing of some kind, and that they were not afforded such hearing. The government argues in response that the requirement of a fee for parking does not deprive federal workers of property rights protected by the Fifth Amendment, and the Court agrees.

 Under Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972),

 Plaintiffs cannot be deemed to possess a property interest in free parking absent some underlying grant giving rise to a claim under law. There is no statute providing the underpinning to such a grant nor can plaintiffs point to an existing collective bargaining agreement obligating the government to provide this benefit to them. *fn6"

 Plaintiffs' sole theory in this regard rests on the claim that the government bargained in the past with some groups of federal employees regarding parking, and that by virtue of that fact parking has become a "condition of employment" which the government may not unilaterally change at any time. In that regard, plaintiffs rely on a statement in OMB Circular No. A-118 which specifically exempts from parking charges employees covered by such an agreement for the duration of the agreement, in an effort to convert that statement into an admission that free parking is and has been a negotiable condition of employment ...


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