regulations. The harm here is the mistaken reliance by individual users of Title 5 of the Code of Federal Regulations, which will occur as the volumes of the Code are distributed to individual libraries and subscribers. Individual federal employees will rely upon these volumes of the Code in making critical decisions concerning their right to challenge adverse decisions withholding within grade pay increases and denying overtime. Local union personnel and outside counsel will rely upon the tainted volumes in giving guidance on what actions to take to remedy personnel actions. Mistakes will be made because the volumes of the Code identified as being current as of January 1, 1984 contain regulations which never came into effect. See Amended Complaint, paras. 28, 33; Affidavit of Lawrence Davis, para. 3; Affidavit of Gary Divine, para. 3.
Not only have plaintiff's members suffered injury but plaintiff has suffered injury in its own capacity as an organization, as its educational mission and representational functions have been harmed by the publication of the tainted volume of the Code. Also plaintiff's ability to recruit new members has been harmed. Defendants' actions, in violation of the Order of this Court issued December 30, 1983, undermine plaintiff's claims that litigation is an appropriate strategy to vindicate the rights of federal employees. The importance of litigation is an important inducement to recruiting new members. See Amended Complaint, pp. 23, 24, 29, 30; Affidavit of Lawrence Davis, paras. 8, 9; Affidavit of Gary Divine, paras. 7, 8.
This Court concludes that the NFFE has standing to press this lawsuit, and defendants' motion to dismiss is without merit.
Defendants Have Violated H.J.Res. 413 and the Court's Injunction
The publication of the banned regulations in the Code violated H.J.Res. 413, which incorporated the provisions of Section 508 of H.R. 4139, 98th Cong., 1st Sess. (1983). Section 508 barred the obligation or expenditure of funds appropriated under the Act from being used to implement, promulgate, administer or enforce the banned regulations. This congressional prohibition specifically applied to both OPM and GSA, of which the OFR is a part. Appropriated funds were used to pay the salaries of persons involved in the approval of galley proofs and transmission of those proofs between OFR, OPM and GPO. OPM has incurred the obligation of reimbursing OFR for the cost of publication of the disputed regulations. 44 U.S.C. § 1509.
The publication also violated the Order of December 30, 1983 issued in NTEU v. Devine. That Order declared the regulations null and void and enjoined Devine, as Director of OPM, from taking any action directly or indirectly with respect to the enjoined regulations. Yet, in violation of the Order, OPM approved the publication of these regulations on February 6, 1984, when OFR sought OPM approval. See Declaration of Robert E. Jordan.
OPM could have avoided a violation of this Court's Order by requiring that OFR publish the regulations codified in the 1983 edition of the Code in place of the enjoined regulations.
In light of this Court's conclusion that defendants' publication of the enjoined regulations violated H.J.Res. 413 and this Court's order, the Court need not decide whether defendants' publication also violated the Federal Register Act.
A Balancing of the Equities Favors Granting the Plaintiff Full Relief
The government has not opposed the issuance of a series of four Federal Personnel Manual Letters and of a Federal Register notice as appropriate relief, in the event of a finding upon the merits in favor of plaintiffs. This relief is an appropriate means to assure that professional personnel specialists employed by the government and attorneys, who may be presumed to understand how to use the Federal Register system, have notice of which regulations are currently in effect.
The additional relief sought by plaintiff, in the form of publication of a supplemental volume of the CFR, containing the regulations published in the 1983 edition of Title 5 of the Code is also granted to assure that less sophisticated users of the Code are able to have ready access to the regulations currently in effect. Nonattorney users of the Code cannot be expected to be able to engage in legal research such as that done by an attorney. The additional cost to the government of this action, estimated to be about $14,300, constitutes a minimal expenditure of funds, and is warranted in light of OPM's decision to publish the enjoined regulations, rather than the old regulations, despite the issuance of the December 30, 1983 Order.
Lastly, the Court recognizes that the government is not generally required to publish a supplemental volume whenever regulations are invalidated. But this instance dictates a departure from the norm. This is not the usual situation where regulations come into effect and are then declared null and void after their subsequent publication in the Code. Rather, the Court is presented with a situation where, at the time of publication, the Code contained a gross misstatement to the effect that the enjoined regulations were effective as of January 1, 1984.
The clarity and specificity of the legislative policy being enforced affects the appropriateness of equitable relief. The Court of Appeals for the District of Columbia, in its affirmance of NTEU v. Devine, made clear that OPM should have understood the Congressional mandate announced in H.J.Res. 413.
In accordance with the foregoing, the plaintiff's cross motion for summary judgment should be granted. An appropriate judgment and order accompanies this Memorandum Opinion.
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