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NATIONAL FEDN. OF FED. EMPLES. v. DEVINE

May 30, 1984

NATIONAL FEDERATION OF FEDERAL EMPLOYEES, Plaintiff,
v.
Donald J. DEVINE, Director, Office of Personnel Management, et al., Defendants



The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, District Judge:

 The plaintiff National Federation of Federal Employees (NFFE) seeks declaratory and injunctive relief from injury caused by defendants' publication of the 1984 edition of Title 5 of the Code of Federal Regulations (CFR). That edition of the CFR contains regulations which purport to be in effect as of January 1, 1984, but which were actually barred for fiscal year 1984 by Congress and declared null and void by this Court on December 30, 1983. National Treasury Employees Union v. Devine, 577 F. Supp. 738 (D.D.C.1983); aff'd 236 U.S. App. D.C. 22, 733 F.2d 114 (D.C.Cir. 1984). The plaintiff asks that the publication of these regulations in the CFR be declared contrary to the Court's ruling of December 30, 1983, and contrary to the provisions of both H.J.Res. 413, Pub.L. No. 98-151, 97 Stat. 964 (1983), and the Federal Register Act, 44 U.S.C. § 1501, et seq.

 Before the Court are defendants' motion to dismiss and cross motions for summary judgment. In accordance with its ruling in open Court on May 11, 1984, the Court denies defendants' motions to dismiss and for summary judgment, and grants plaintiff's motion for summary judgment.

 THE PARTIES

 NFFE is an independent labor organization representing nearly 150,000 employees throughout the federal government. It represents federal employees through collective bargaining, processing grievances and taking matters to arbitration, pursuing charges of unfair labor practices, lobbying in Congress for legislation on pay and benefits, and through litigation in the courts. NFFE and its affiliated locals act as the exclusive bargaining representative for federal employees pursuant to Title VII of the Civil Service Reform Act of 1978, 5 U.S.C. §§ 7101, et seq.

 Defendant Donald J. Devine is Director of the Office of Personnel Management (OPM) and is charged with executing, administering, and enforcing rules, regulations and the laws governing the civil service. Defendant Ray Kline is the Acting Administrator of the General Services Administration, and is responsible for the printing and distribution of documents to be published in the Federal Register. Defendant John E. Byrne is the Director of the Office of the Federal Register and acts in conjunction with the Administrator of the General Services Administration in the printing and distribution of documents to be published in the Federal Register. Defendant William J. Barrett is the Acting Public Printer and head of the Government Printing Office, and is also charged with the responsibility for the printing and distribution of documents to be published in the Federal Register. Defendant Michael F. DiMario is the Superintendent of Documents, Government Printing Office, and is responsible for the disposition, sale, printing of additional copies for sale, and general distribution of public documents.

 THE COURSE OF THIS PROCEEDING

 The plaintiff filed this complaint on April 10, 1984. The Court determined on April 17 that the plaintiff had satisfied the requirements for emergency equitable relief. Accordingly, a temporary restraining order was entered directing the defendants to publish three letters in the Federal Personnel Manual explaining that the new 5 CFR contains enjoined regulations and to publish notice in the Federal Register to the same effect. The temporary restraining order was then amended to require a fourth letter covering other parts of the CFR which were affected but not included in the prior order. It was later extended with the consent of the parties until the court ruled on cross motions for summary judgment and later amended to include the fact that the United States Court of Appeals for the District of Columbia Circuit had affirmed this Court's ruling in NTEU v. Devine, supra ; 733 F.2d 114 (D.C.Cir.1984).

 On the motion to dismiss now before the court, defendants claim that NFFE lacks standing. The essence of their contention is that no federal agency has attempted to enforce the regulations, so that the mere publication of the enjoined regulations has not inflicted injury-in-fact on NFFE. On their motion for summary judgment, defendants claim that mere publication does not amount to implementation or enforcement and that consequently defendants did not violate this Court's injunction in Devine. Lastly, they argue that even if they violated this Court's injunction, the relief already awarded NFFE by the temporary restraining order is sufficient, and no further relief should be ordered.

 NFFE contends that it has standing, that defendants violated this Court's injunction, H.J.Res. 413 and the Federal Register Act, and that it should be awarded additional relief: publication of a supplemental volume to Title 5 of the CFR which would contain the still-valid 1983 regulations omitted from the 1984 CFR volume.

 BACKGROUND

 By letter dated December 30, 1983, the Department of Justice notified the General Counsel of all agencies, including the General Services Administration (GSA) of the permanent injunction in NTEU v. Devine concerning the OPM regulations. Letter of Richard Willard. In spite of this notification, the Office of the Federal Register (OFR), which is a part of the GSA and which prepares the copy for the CFR, included the enjoined regulations in its compilation of "documents of general applicability and future effect as of January 1, 1984." 5 CFR p. i, Parts 300, 335, 351, 430, 451, 531, 532, 540, 551. Accompanying each Part or section of banned regulations, the OFR inserted an "editorial note" to the effect that the regulations are "currently in litigation." See Declaration of Robert E. Jordan, paras. 3, 4.

 The OPM was advised by the OFR of the inclusion of the enjoined regulations and the galleys for final printing were forwarded from OFR to OPM for inspection. Declaration of Robert Jordan, para. 4. On February 6, 1984, the OPM advised the OFR, by letter, that it had "no objection" to the OFR's publication of OPM's regulations in ...


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