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AFGE v. FREEMAN

UNITED STATES DISTRICT COURT, DISTRICT OF COLUMBIA


March 3, 1981

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 action is presently before the Court on cross-motions for summary judgment after an earlier denial of defendant's motion to dismiss. The plaintiffs *fn1" seek a declaratory judgment that 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 were not issued pursuant to legitimate statutory or other authority and are unlawful. They 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. *fn2" The Court finds that the government acted without proper authority, and an order issued contemporaneously herewith accordingly grants summary judgment to plaintiffs and enjoins the further collection of parking fees.

I

 Although the President is the head of the Executive Branch and as such the manager of both federal employees and federal property, his powers with respect to both are generally *fn3" circumscribed by statute. It is likewise clear that when Congress enacts legislation granting specific powers to the President or to other officials in the Executive Branch, these powers must be exercised in accordance with such legislation and the congressional purposes. See NFFE v. Brown, 207 U.S. App. D.C. 92, 645 F.2d 1017 (D.C. Cir. 1981). And to the extent that the relevant statutes contain explicit or implicit limitations or restrictions, they are binding upon the President and other Executive Branch officials as they are on all other citizens. In the consideration of issues of this case, these fundamental principles must be kept in mind.

 On March 22, 1979, a packet of materials was sent to President Carter under a cover memorandum from two presidential aides entitled "Energy Issues." *fn4" Among other materials, the packet contained a four-page document entitled "Phase-out of Federal Employee Parking Subsidies" (Parking Paper). This document framed the following issue for the President's consideration:

 

Should parking subsidies for Federal employees be phased-out at location where nongovernment workers typically pay commercial parking rates? (The authority for implementing such action rests with OMB under GAO rulings involving Federal Property and Administrative Services Act (40 U.S.C. §§ 471 et seq.)). Parking Paper, p. 1.

 After considering the pros and cons of eliminating the subsidy, *fn5" the paper stated that the head of the Office of Management and Budget (OMB) had concluded that the subsidy should be phased out in all urban areas in the United States and not merely in the nation's capital. He proposed that, should the President have no objection, OMB would issue a draft circular to that effect to all federal agencies in April, 1979, to be followed by a final circular some time later after agency comments had been received. The paper also contained a schedule for the phasing in of the fees, with the full rate to go into effect in October, 1981. The last page of the document contains a decision block; next to the words "Agree. Issue draft circular" are a checkmark and the President's initial.

 The President addressed the Nation on April 5, 1979 to discuss the severity and deterioration of the nation's energy problems, and to propose programs directed towards energy conservation and the 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. *fn6"

 Referring to this presidential address, OMB issued Circular No. A-118 which established a policy of phasing in fees for the use of parking heretofore provided without charge to federal employees. The 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. As promulgated, the circular establishes a schedule of fees which follows that set forth in the presidential Parking Paper described above, and it vests responsibility in GSA for issuing implementing regulations. Pursuant to this authority, GSA, on September 6, 1979, issued Temporary Regulation D-65 which prescribed the assessment of charges for the use of parking spaces by federal employees. 44 Fed.Reg. 53161. That regulation became effective on November 1, 1979.

 Plaintiffs argue that GSA failed to exercise the discretion vested in it by statute but instead improperly relied on orders from OMB. They further claim that, in any event, the Executive Branch was without authority under law to impose paid parking on federal employees as a means of achieving a reduction in the consumption of energy. The government asserts that it was acting pursuant to lawful authority under the Federal Property and Administrative Services Act as amended, in particular upon that part of the Act which is codified in 40 U.S.C. § 490 (hereinafter referred to as the Public Buildings Amendments). *fn7" It thus becomes necessary to examine the provisions of that statute and its purposes.

 II

 Sections 490(j) and 490(k) of title 40, U.S.Code, provide in relevant part that

 

(j) The Administrator is authorized and directed to charge anyone furnished services, space, quarters, maintenance, repair, or other facilities (hereinafter referred to as space and services), at rates to be determined by the Administrator from time to time and provided for in regulations issued by him. Such rates and charges shall approximate commercial charges for comparable space and services, except that with respect to those buildings for which the Administrator of General Services is responsible for alterations only ... the rates charged the occupant for such services shall be fixed by the Administrator so as to recover only the approximate applicable cost incurred by him in providing such alterations.

 

(k) Any executive agency, other than the General Services Administration, which provides to anyone space and services set forth in subsection (j) of this section, is authorized to charge the occupant for such space and services at rates approved by the Administrator.

 The government's account as to how these statutory sections should be interpreted with respect to parking since they took effect in 1972, and its argument based thereon may be summarized as follows. Subsection (j) requires GSA to charge other agencies for parking space which it provides to them and their employees. Subsection (k) grants to the agencies the discretion to pass those charges on to those of their individual employees who actually use the spaces, but it must do so at rates approved by GSA. GSA has imposed parking space charges on the agencies themselves since 1975. The individual agencies had failed to charge individual employees for their parking until Temporary Regulation D-65 was issued in 1979 only because GSA had not, until then, approved rates to be used in assessing such fees. GSA, in turn, had not promulgated these rates because OMB had failed until 1979 to formulate a "national parking fee policy." *fn8" With the publication of Circular No. A-118 that policy had finally emerged; GSA could and did promulgate procedures for the establishment of rates to be used by the agencies in charging fees to their employees; and the agencies then could and did impose such charges. Finally, it is claimed by the government that the President had the authority, acting through OMB and the Parking Paper, to exercise for the various agencies their statutory discretion with respect to the issue of whether their employees should be charged for parking.

 Considering the last point first, the Court agrees with the government that 40 U.S.C. § 486(a) *fn9" authorizes the President to direct the various governmental agencies within the Executive Branch in the exercise of their discretion with respect to federal property management. *fn10" For purposes of the disposition of this case, the Court will also assume, without deciding, that a checkmark in a decision block on a memorandum addressed to the President constitutes a valid delegation from the President to OMB; *fn11" that section 490 could be interpreted to give to OMB, GSA, or both, the authority, singly or in combination, to require individual employees to pay for parking (as distinguished from imposing that requirement only on the agencies themselves); *fn12" and that GSA had the power to establish parking rates when it did. *fn13" Given these premises, the question is did the Public Buildings Amendments provide a valid basis for the exercise of the President's authority under the circumstances of this case?

 III

 The answer to this question turns on the legislative purposes underlying the Public Buildings Amendments; the purpose of the government in imposing parking fees; and the applicability to the present situation of the Energy Policy and Conservation Act, 42 U.S.C. § 6201 et seq. (EPCA).

 As their legislative history shows, the Public Buildings Amendments had a very concrete and narrow purpose. At the time of their enactment in 1972, sixty-three federal construction projects already long approved by Congress languished (either unfinished or not yet begun) because of inefficiencies in the federal building program managed by GSA. In response to this problem, the Amendments established charges, first, to provide GSA with a building fund, drawn from the budgets of agencies utilizing GSA space, to be used for pending and future construction projects, and second, to induce agencies to use caution in their requests for new space. See H.R. Rep. No. 989, 92nd Cong., 2d Sess. (1972), U.S.Code Cong. & Admin.News 1972, p. 2370; 118 Cong.Rec. 13499-13510 (1972) The legislative history demonstrates

 

that the congressional purpose pervading passage of the Public Buildings Amendments of 1972 was to make government agencies accountable for the space they utilize and to prevent agencies from demanding space in excess of their needs. *fn14"

 Nothing in the language of the statute or its legislative history lends the slightest support to the proposition that parking fees might be required or authorized as a means of energy conservation. Yet the 1979 paid parking plan had precisely that objective.

 When the notion of a paid parking plan was first brought to the attention of the President in the March 22, 1979, Parking Paper, it was part of a packet of materials labeled "Energy Issues," and among the reasons listed in its favor were possible daily savings of "tens of thousands of gallons of gas" and setting an example which "could eventually produce nationally significant changes in energy consumption." See note 5, supra. When the plan was first announced publicly, in the presidential address of April 5, 1979, the only reason given was "to reduce the waste of energy, particularly gasoline, in commuting to and from work." Weekly Compilation of Presidential Documents, April 5, 1979, p. 614. A White House Press Release issued the same day as a fact sheet on the President's Energy Program lists the phase-out of free parking for federal employees under the heading of "Longer Term Conservation Activities," and notes that possible elimination of "over 100,000 miles of vehicle travel each day in the downtown Washington, D.C. area alone, saving 5,500-6,000 gallons of gasoline per day." White House Fact Sheet on the President's Program, April 5, 1979, p. 6 (attached to Defendant's Statement of Material Facts as to Which There is No Genuine Issue). The reasons for instituting parking charges cited in OMB Circular No. A-118, upon which the GSA regulation rested, likewise focus on reduction of energy consumption. *fn15"

 While reasons other than energy conservation have been offered in support of the paid parking plan such as reductions in traffic congestion and air pollution, savings to the taxpayers, and the elimination of disparities in treatment between federal employees and their counterparts in the private sector *fn16" there can be no question but that these were merely incidental. The plan originated in the context of energy conservation, energy conservation was its focus and indeed its entire raison d'etre, and it has consistently been presented to the President, to the agencies, and to the public in that context. *fn17"

 Since the purposes of the 1979 parking plan were wholly different from those sought to be achieved by the 1972 Public Buildings Amendments, there is a serious question whether the former could have validly been implemented in reliance on the latter under any circumstances. See also notes 11 to 13 supra. It is not necessary, however, to decide that issue in the abstract because of the existence of an entirely different statute enacted subsequently, *fn18" which deals directly and specifically with the subject of energy conservation. *fn19"

 IV

 The Energy Policy and Conservation Act was enacted by the Congress in 1975 in order, among other reasons,

 

to grant specific standby authority to the President, subject to congressional review, to impose rationing, to reduce demand for energy through the implementation of energy conservation plans, and to fulfill obligations of the United States under the international energy program. (emphasis added) 42 U.S.C. § 6201(1). *fn20"

 Under section 6262(a)(1), the President is authorized to prescribe "one or more energy conservation contingency plans." An "energy conservation contingency plan" is defined as "a plan which imposes reasonable restrictions on the public or private use of energy which are necessary to reduce energy consumption." The plan to impose fees for previously free parking, as embodied in OMB Circular No. A-118 and GSA Temporary Regulation D-65, falls squarely within that definition: it imposes restrictions on the use of energy and its purpose is to reduce energy consumption. See also, Opinion of September 25, 1980, p. 6.

 Under the EPCA, an energy conservation plan cannot become effective unless the President first transmits it to Congress for approval by a resolution of each House. 42 U.S.C. § 6261(b). *fn21" The paid parking plan was never transmitted to Congress in accordance with these statutory requirements, and it is therefore clearly invalid for lack of compliance with section 6261 unless it somehow technically escapes being an "energy conservation contingency plan." The government argues that this is so for two main reasons. *fn22"

 First, it is asserted that the contingency plan requirements apply only to those energy conservation measures which impact throughout the national economy, and that, since the paid parking plan affects only the public sector, these requirements are not applicable. One short answer is section 6262 which explicitly covers plans imposing restrictions on "public or private use of energy." 40 U.S.C. § 6262(a)(1) (emphasis added). Beyond that, the only support the government offers for its premise that a national impact is required is section 6261(f) which deals with evaluation statements which must be transmitted to Congress. *fn23" But there is nothing in that provision which explicitly or by necessary implication limits contingency plans to measures having a national impact. *fn24" Beyond that, however, it is clear that the parking plan does have such an impact. It is not limited to federal employees in the nation's capital but extends to 130,000 parking spaces used by federal employees throughout the country. *fn25"

 Second, it is claimed that under section 6262 the charges to employees for parking could not have been proposed as an energy conservation plan because they are "user fees." Section 6262(a)(2) states that

 

an energy conservation contingency plan prescribed under this section may not

 

(A) impose rationing or any tax, tariff, or user fee;

 

(B) contain any provision respecting the price of petroleum products; or

 

(C) provide for a credit or deduction in computing any tax.

 Since user fees are excluded from the scope of section 6262, the government concludes that the paid parking plan could be imposed by the President on his own authority, subject to no congressional review whatever.

 EPCA provides the President with the authority to impose measures to achieve conservation subject to an expedited congressional review procedure. See 42 U.S.C. § 6422. The other subjects excluded from that procedure by virtue of section 6262(a)(2) taxes, rationing, and petroleum price provisions are all measures that are traditionally reserved to the Congress itself, as distinguished from being within the President's discretion or constituting joint responsibilities. The conclusion to be drawn from this scheme is that section 6262(a)(2) excludes these subjects from the energy conservation contingency plan procedure not, as the government suggests, in order to relegate them to unbridled presidential jurisdiction but, on the contrary, to reserve them to the normal process of congressional review and legislation. *fn26"

 The legislative history of EPCA supports this interpretation. The decision to subject the exercise of presidential conservation plan authority to congressional review was a reaction to and constituted a rejection of an energy program proposed by the President. The President's plan had placed reliance on increasing prices as the singular means for curtailing energy demand and maximizing energy supplies. There was strong opposition to the grant of unrestricted power over prices to the President. Congress ultimately responded by legislation which, while giving the President standby conservation authority subject to limited congressional review, *fn27" excluded from that grant those subjects which it believed were properly reserved to regular legislative treatment rationing, prices, taxes, and user fees. *fn28"

 V

 In 1972, Congress enacted legislation authorizing the General Services Administration to charge other federal agencies for the space they use in government-owned facilities. The plain purpose of this legislation was to induce government officials to prudence and conservatism in their construction and maintenance requests and thus to serve the cause of economy in government. For the first seven years of its life, the statute was used in just that way: agencies paid with funds from their own budgets for space and service requirements, but the individual federal employees who as such have no relation to the budget-transfer process were not charged fees at commercial rates for the parking spaces they used. See 55 Comp.Gen. 897 (1976).

 In 1975, Congress passed another statute, the Energy Policy and Conservation Act, addressed to a wholly different problem, that of energy conservation. Four years later, the Office of Management and Budget recommended to the President that, as part of his energy conservation program, he direct the imposition of parking fees for federal employees. From the point of view of swift and dramatic action, the EPCA suffered from the obvious defect, however, that it required prior congressional review and concurrence. OMB seized upon *fn29" the 1972 law, which does not necessitate such review, as its authority for the parking measure.

 Whatever may be the powers generally of the President with respect to federal employees and federal property, when he is given authority by law for certain specified purposes, he is required to operate within those statutory limits and to exercise the authority thus granted to achieve those purposes (rather than some other objective, regardless of its desirability). It is not necessary here to explore the outer limits of the exceptions to that rule, *fn30" for at least where the Congress has spoken also with regard to the claimed exception, the President is without power to rely upon more general authority to override a specific congressional command. Thus, when Congress specified in the EPCA that energy conservation plans could be implemented only after congressional review and with congressional concurrence, the President was not free to ignore that mandate.

 For the reasons stated, the Court declares GSA Temporary Regulation D-65 to be invalid and defendant's actions in charging federal employees for parking spaces in and about federal buildings to be unlawful. In an accompanying order, the regulation is set aside and its enforcement is being permanently enjoined. As for the matter of restitutive relief, the parties have not as yet adequately briefed such issues as whether there is any entitlement to such relief; if the answer is in the affirmative, who is entitled to restitution *fn31" and in what amount; and what mechanism is to be employed for identifying those entitled to restitution and for computing and achieving such relief. Accordingly, today's order requires that further memoranda be filed on the various restitution issues.


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