AMERICAN FEDERATION OF GOVERNMENT EMP. v. Freeman, Civ. A. No. 79-2955.

• Decision Date: 03 March 1981
• Docket Number: Civ. A. No. 79-2955.
• Citation: 510 F. Supp. 596
• Parties: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO et al., Plaintiffs, v. R. G. FREEMAN, III, Defendant.
• Court: U.S. District Court — District of Columbia

510 F. Supp. 596

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO et al., Plaintiffs, v. R. G. FREEMAN, III, Defendant.

Civ. A. No. 79-2955.

United States District Court, District of Columbia.

March 3, 1981.

Mitchell J. Notis and James R. Rosa, Washington, D. C., for plaintiffs.

Robert M. Tobias and William E. Persina, Washington, D. C., for plaintiffs-intervenors.

David H. Shapiro, Asst. U. S. Atty., Washington, D. C., for defendant.

OPINION

HAROLD H. GREENE, District Judge.

This action is presently before the Court on cross-motions for summary judgment after an earlier denial of defendant's motion to dismiss. The plaintiffs¹ 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.² 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 generally³ 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, D.C. Cir. No. 79-2394 (February 18, 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."⁴ 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,⁵ 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.⁶

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).⁷ 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."⁸ 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)⁹ 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.¹⁰ For purposes of the disposition of this case, the Court will also assume, without deciding, that a check-mark in a decision block on a memorandum addressed to the President constitutes a valid delegation from the President to OMB;¹¹ 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);¹² and that GSA had the power to establish parking rates when it did.¹³ 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...