American Federation of Government Emp., AFL-CIO v. Carmen
| Decision Date | 15 December 1981 |
| Docket Number | AFL-CIO,No. 81-1244,81-1244 |
| Citation | 669 F.2d 815 |
| Parties | AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,et al. v. Gerald P. CARMEN, Administrator, General Services Administration, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia; (CA No. 79-02955).
Kenneth M. Raisler, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., Royce C. Lamberth, and David H. Shapiro, Asst. U. S. Attys., Washington, D. C., were on the brief for appellant.
Mitchell Jay Notis, Washington, D. C., with whom James R. Rosa, Washington, D. C., was on the brief for appellee American Federation of Government Employees.
John F. Bufe, Washington, D. C., with whom Robert M. Tobias, Washington, D. C., was on the brief for appellee National Treasury Employees Union.
Before ROBINSON, Chief Judge, ROBB and GINSBURG, Circuit Judges.
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. 1 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 (FPASA). 2 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 (EPCA). 3 Concededly, the President had not proceeded as specified in that Act. 4 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.
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 nongovernment workers typically pay commercial parking rates?" 5 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 (OMB) 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 bears a checkmark and the President's initial. 6
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." 7 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. 8
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." 9 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."
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, 10 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. § 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 (GSA), 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
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 (FPASA) 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?
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 provi...
To continue reading
Request your trial
-
Brnovich v. Biden
...renewal); UAW-Labor Emp. & Training Corp. v. Chao , 325 F.3d 360 (D.C. Cir. 2003) (promoting rights of union members); AFGE v. Carmen , 669 F.2d 815 (D.C. Cir. 1981) (conservation of gasoline during oil crisis). Other executive branch policies, however, have been invalidated as exceeding th......
-
Doe v. DiGenova, 84-5571
...to this court on appeal"), cert. denied, 459 U.S. 839, 103 S.Ct. 86, 74 L.Ed.2d 81 (1982); American Federation of Government Employees, AFL-CIO v. Carmen, 669 F.2d 815, 820 n. 25 (D.C.Cir.1981) (deciding issue where all parties had addressed it and its resolution was beyond doubt). When the......
-
Georgia v. President of the U.S.
...question assists the Government in obtaining an economical and efficient system" for "the utilization of available property." 669 F.2d 815, 821 (D.C. Cir. 1981) (quotations and brackets omitted). The "nexus" test is so "lenient," in the D.C. Circuit's own estimation, that an executive order......
-
Railroad Yardmasters of America v. Harris
...issue. See Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976); American Federation of Government Employees v. Carmen, 669 F.2d 815, 820 n. 25 (D.C.Cir.1981); Grace v. Burger, 665 F.2d 1193, 1197 n. 9 (D.C.Cir.1981), aff'd in part and vacated in part on othe......