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12/15/81 American Federation of v. Gerald P. Carmen

December 15, 1981




Before ROBINSON, Chief Judge, ROBB and GINSBURG, Circuit Judges.


Appeal from the United States District Court for the District of Columbia; (CA No. 79-02955).


Opinion for the Court filed by Circuit Judge GINSBURG.


In November 1979, the government began phasing out free employee parking on federal property. On the complaint of individual employees and unions representing federal workers, the district court, 510 F. Supp. 596, in March 1981, ordered a permanent stop to the parking charges. *fn1 The government asserted, and the district court assumed arguendo, that the President, and executive branch agencies acting at his direction, had authority to institute the parking charges under the Federal Property and Administrative Services Act . *fn2 Nonetheless, the district court concluded that the energy conservation purpose the President sought to advance through the charges placed the plan under governance of newer legislation, the 1975 Energy Policy and Conservation Act . *fn3 Concededly, the President had not proceeded as specified in that Act. *fn4 Therefore, the district court held the executive action unlawful.

We conclude that the parking charges were authorized by and validly imposed under the FPASA and that the EPCA does not subtract from authority the FPASA grants to the President. Accordingly, we reverse the district court's judgment and remand with instructions to enter judgment in favor of the Administrator. In this opinion, we set out first the chronology of relevant events; next, the bases for our determination that the FPASA authorizes the executive directives at issue here; and, finally, our reasons for concluding that the EPCA, which augments initiatives available to the President to promote energy conservation, does not truncate or displace pre-existing FPASA authority. I. The President's Decision and Its Implementation

A. The parking issue paper: a multi-purpose proposal contained in an energy packet

On March 22, 1979, President Carter received from two of his Domestic Policy Staff aides a packet of materials under a cover sheet captioned "Energy Issues." One of the items in the packet was a four-page issue paper headed "Phase-out of Federal Parking Subsidies." The paper presented the following question for the President's decision: "Should parking subsidies for Federal employees be phased-out at locations where non-government workers typically pay commercial parking rates?" *fn5 Air quality, transportation policy, and energy conservation concerns were cited in support of eliminating the subsidies. The paper further stated that the estimated annual cost recovery to the government would be in the $31 to $47 million range. In addition, the paper pointed out that for those who drive alone, the annual before-tax subsidy could amount to $1,100 or more; employees in carpools reaped a much lower individual benefit; persons using mass transit or working for agencies that lacked parking facilities received no subsidy at all for the cost of the trip to work. As the principal reason against ending parking subsidies, the paper cited adverse effects on the morale of federal workers. A "conclusions and recommendations" section stated that the head of the Office of Management and Budget considered the phase out "the right way to go"; it indicated the course on which OMB would proceed, commencing with distribution of a draft circular to federal agencies, if the President had no objection. The paper's final page set out Decision lines. The line facing "Agree. Issue draft circular." bears a checkmark and the President's initial. *fn6

B. The President's energy address and accompanying fact sheet: a single-issue speech and a more detailed White House release

In an April 5, 1979 address to the nation on the country's serious and worsening energy problem, President Carter announced numerous actions, plans, and proposals to "move us away from imported oil and toward a future of real energy security." *fn7 One sentence in the list of measures the President announced concerned the parking subsidy phase out:

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.

A fact sheet released simultaneously with the President's speech by the White House Press Secretary provided further detail on items mentioned in the address. "Phase out of Free Parking for Federal Employees" appears in the fact sheet under the main heading "Longer Term Conservation Activities." *fn9 The fact sheet stated that "(t)he President has directed the Office of Management and Budget to begin phasing out subsidized parking for federal employees." It further stated that fees for parking "are intended to encourage greater ...

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