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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 carpooling and use of mass transit for commuting, and to recover the $35-40 million in costs which are borne by the general taxpayer."

C. OMB's Circular and GSA's Regulation

The day following the President's address, OMB distributed to federal agencies and federal employee unions a draft of Circular No. A-118, establishing policy on federal employee parking charges. Published in final version on August 17, 1979, *fn10 the circular cited, in addition to an energy conservation purpose, concerns about air quality, traffic congestion, and equity among federal employees. The Federal Register preamble referred to the President's April 5, 1979 energy address and also identified the expected $35 to $40 million saving in public funds. As authority for the parking charges, the circular cited the FPASA, as amended (40 U.S.C. ยง 490),11 and referred to a 1976 Comptroller General review of the matter (55 Comp.Gen. 897);12 it next described the responsibilities of the General Services Administration , inter alia, to determine rates and issue implementing regulations.13

On September 6, 1979, GSA issued Temporary Regulation D-65, prescribing policies and procedures for the assignment of federal employee parking spaces and the assessment of charges for the use of such spaces.14 That regulation became effective November 1, 1979. Federal agencies, pursuant to OMB Circular No. A-118 and GSA Temporary Regulation D-65, started phasing in parking charges on or shortly after that date.15 Some sixteen months later, free parking was restored by the district court order now before us on appeal.16 II. The District Court's Analysis

Energy conservation was the paid parking plan's "raison d'etre," the district court declared, other reasons offered were "merely incidental."17 The EPCA had granted the President standby authority, subject to congressional review, "to reduce demand for energy through the implementation of energy conservation (contingency) plans."18 An "energy conservation contingency plan" is defined in the Act as "a plan which imposes reasonable restrictions on the public or private use of energy which are necessary to reduce energy consumption."19 The paid parking plan "imposes restrictions on the use of energy and its purpose is to reduce energy consumption,"20 the district court stressed. Therefore, that court concluded, the plans falls squarely within EPCA territory. On this analysis, the district court reasoned, it was unnecessary to decide whether the parking plan "could have validly been implemented in reliance on the under any circumstances."21 In the district court's view, the case turned on the "specific congressional command" in the EPCA "that energy conservation (contingency) plans could be implemented only after congressional review and with congressional concurrence."22 That command, the district court believed, precluded the President from relying on more general authority: The President had ignored the EPCA and that meant the parking charge could not stand.23

We do not perceive as clearly as did the district court that energy conservation eclipsed all other reasons for instituting parking charges. But even if we agreed that packaging the plan in an energy kit rendered air quality, cost recoupment, and other stated concerns "merely incidental," we would not conclude that the EPCA governed. The parking charge was not presented as a standby conservation plan for the short term, the kind of measure appropriate for the EPCA's "contingency plan" regime. Rather, it was put forward as a permanent fixture authorized by a law, the FPASA, that Congress had neither repealed nor revised. Because we do not read the EPCA as a statute encompassing the universe of energy-minded actions,24 we must start with the inquiry the district court did not fully pursue: Was the parking charge authorized by and validly imposed under the FPASA? III. Fees for Employee Parking in Federal Facilities Were Validly

The central question, as we view this case, is "whether or to what extent" the FPASA authorized the executive initiation of charges to individual federal employees for the use of federally owned parking spaces. See NAACP v. FPC, 425 U.S. 662, 665, 96 S. Ct. 1806, 1809, 48 L. Ed. 2d 284 (1976).25 Section 486(a) of this Act provides:

The President may prescribe such policies and directives, not inconsistent with the provisions of this Act, as he shall deem necessary to effectuate the provisions of said Act, which policies and directives shall govern the (General Services) Administrator and executive agencies in carrying out their respective functions hereunder.


The legitimacy under section 486(a) of President Carter's prescription of the free parking phase out,27 implemented by OMB Circular No. A-118 and, in turn, GSA Temporary Regulation D-65, thus depends on whether the President acted "to effectuate the provisions" of the FPASA and, if he did, whether his action was "not inconsistent with" any specific provision of the Act. See AFL-CIO v. Kahn (supra) 618 F.2d at 788.

The provisions of the FPASA are effectuated if the executive action in question assists "the Government (in obtaining) an economical and efficient system for ... the utilization of available property."28 We believe it evident that the free parking phase out fits this description. The phase out would allow the government to recover annually an amount estimated to exceed $30 million. This cost recovery consideration was cited in the parking issue paper that elicited the President's action. In short, we find it inescapably obvious that the institution of parking charges would, indeed, assist the government in utilizing its property efficiently and economically.

Appellees do not suggest that cost recovery or elimination of a benefit spread unevenly among federal employees falls beyond the pale of section 486(a). They emphasize, however, the energy conservation concern announced in support of the parking charge. The parking issue paper mentioned in addition other national goals not directly linked to economy and efficiency in government property management-cleaner air and reduced traffic congestion. We cannot agree that an exercise of section 486(a) authority becomes illegitimate if, in design and operation, the President's prescription, in addition to promoting economy and efficiency, serves other, not impermissible, ends as well. Our position in this regard is informed by notable precedent. See, e.g., AFL-CIO v. Kahn (supra) 618 F.2d at 792-93 (additional goal of slowing inflation in the economy as a whole); Contractors Association v. Secretary of Labor, 442 F.2d 159, 171 (3d Cir.) (additional goal of promoting enhanced employment opportunities for minorities), cert. denied, 404 U.S. 854, 92 S. Ct. 98, 30 L. Ed. 2d 95 (1971); Farmer v. Philadelphia Electric Co., 329 F.2d 3, 8 (3d Cir. 1964) (additional goal of checking racial discrimination).

Appellees further urge that even if the parking charge was intended to and would in fact effectuate the general provisions of the FPASA relating to economical and efficient utilization of government property, the action at issue is nonetheless invalid because it is inconsistent with specific provisions of the Act. For this argument, appellees rely on sections 490(j) and (k) of the FPASA.29 These sections, they contend, confer authority to impose space occupancy charges directly upon the Administrator of GSA and executive agencies. According to appellees, any command emanating from the President imposing space-occupancy charges, directing the Administrator to do so, or delegating authority in the premises to OMB would be inconsistent with the statutory provisions explicitly authorizing action by "the Administrator" and by an "executive agency."

We find this argument unpersuasive. The plain language of section 486(a) states that policies and directives the President prescribes "shall govern the Administrator and executive agencies in carrying out their respective functions hereunder." The legislative history of the FPASA, moreover, confirms that Congress intended section 486(a) to clarify that "Presidential policies and directives shall govern-not merely guide-not only the Administrator but all executive agencies in carrying out these property-management functions."30 Sections 490(j) and (k), it is true, state what the Administrator and an executive agency are authorized to do. But section 486(a) assigns to the President the lead role. Pursuant to that provision, the President has clear authority to direct the Administrator and executive agencies "in carrying out their respective functions" under specific FPASA provisions, including sections 490(j) and (k). Thus we find nothing "inconsistent with the provisions of (the FPASA)" in a directive by the President that requires the Administrator and agency heads to install31 a system for collection of parking fees from individuals.32

Finally, even in the absence of a clear statutory provision establishing a governing role for the President, we would not conclude that Congress, simply by assigning a function to an executive agency, thereby intended to exclude initiating action by the President. As this court has had recent occasion to observe, "Within the range of choice allowed by statute, the President may direct his subordinates' choices." National Federation of Federal Employees, Local 1622 v. Brown, 207 U.S. App. D.C. 92, 645 F.2d 1017, 1022 (D.C.Cir.1981). See also National Treasury Employees Union v. Reagan, 214 U.S. App. D.C. 62, 663 F.2d 239, 248 (D.C.Cir.1981); Sierra Club v. Costle, 211 U.S. App. D.C. 336, 657 F.2d 298, 406 & n.524 (D.C.Cir.1981).33

In sum, President Carter directed executive action-the phase out of free parking for federal employees-mindful of and fully compatible with the design of the FPASA to promote economy and efficiency in the utilization of government property. His authority to direct the phase out is securely established by section 486(a)34 and no other provision of the Act is inconsistent with the action he commanded. IV. The President's Authority to Direct the Phase Out of Free Parking

for Federal Employees Is Not Eliminated or Diminished by the EPCA

In the FPASA, Congress established a governing role for the President in setting policy and directing federal agencies regarding the procurement and management of government property. We have concluded that the phase out of free parking for federal employees, as determined by the President and implemented by OMB and GSA, falls comfortably within the property management executive authority conferred by section 486(a) of the FPASA. We now turn to the question whether Congress, when it enacted the EPCA, sub silentio withdrew or qualified the authority granted to the President under the FPASA.

As appellees acknowledge, the EPCA empowers the President "to respond quickly to energy supply interruptions or other energy crises."35 It arms the President with new authority to initiate "contingency plans" for energy conservation in urgent circumstances.36 But this novel authority is subject to controls. First, and perhaps principally indicative of the crises character of the executive initiatives Congress envisioned, contingency plans may not run beyond nine months.37 Second, while Congress must respond to the President's initiatives expeditiously (within 60 days of transmittal),38 approval resolutions of both Houses are prerequisite to implementation of a contingency plan.39 Third, certain measures may not be taken under the extraordinary EPCA contingency plan initiation and approval procedure. The President may not prescribe in a contingency plan "rationing or any tax, tariff, or user fee."40 Nor may he propose in this manner "any provision respecting the price of petroleum products," or "provide for a credit or deduction in computing any tax."41 New law in these areas, even for a short term, must be made through the regular legislative process. The EPCA's contingency plan provisions thus guardedly augment the President's power. We cannot read into the Act's qualified, crisis-focused grant of extraordinary power42 any intention to terminate or modify authority Congress earlier had accorded the President.43

Our view that the EPCA does not subtract from authority that other legislation, including the FPASA, confers is buttressed by references in the text of the Act. Signaling that the EPCA does not repeal other laws by sweeping within its governance all federal attempts to curtail prodigal use of energy, the Act calls upon the President to exercise his authority "under other law" to develop standards with respect to energy efficiency in Government procurement policies and decisions.44 It further instructs the President, "to the extent of his authority under other law," to implement a long-range (10-year) plan for energy conservation in buildings owned or leased by federal agencies.45

Appellees call to our attention the President's resort to the EPCA to gain approval from Congress for two of the energy programs listed in the White House fact sheet released at the time of the President's April 5, 1979 energy address.46 Formal EPCA contingency plans were presented to Congress for building temperature restrictions47 and mandatory weekend closing of gasoline stations.48 If these programs were subject to the EPCA, appellees reason, then the parking program listed in the very same fact sheet was equally subject to that Act's regime.49 The flaw in this reasoning is apparent. No "other law"50 authorized the President to impose thermostat controls in nonpublic buildings.51 Nor did any "other law" provide for the closing of privately owned gasoline stations by federal command.

To summarize, we reject the notion that all "Presidential actions attempting to conserve energy must be taken pursuant to the EPCA."52 Rather, we believe the EPCA contingency plan provisions on which appellees rely must be invoked only in situations not provided for in other laws. The executive action taken here is covered by another law, the FPASA. Consistent with the lead role the FPASA reserves for the Chief Executive in government property management, the President directed executive agencies subject to his supervision to impose fees for parking spaces furnished to federal employees. One of the stated purposes for that direction was cost recovery, and there is no doubt that the measure in fact serves a genuine interest in thrifty management of government facilities. The program is not rendered unlawful because it was billed as an energy-minded measure and in fact may work to conserve energy. We decline to convert a law designed to enhance the President's power to act in energy crises into an instrument to shear the Chief Executive's authority under other legislation. Since the district court judgment has that effect, we reverse that judgment53 and remand with instructions to enter judgment in favor of the Administrator.

It is so ordered.

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