tion 21(a) of the Act) were unconstitutional because they: (1) usurped essential functions of the Executive and Judicial branches; (2) deprived the President of his constitutional right to veto legislative actions having the effect of law; and (3) contained no standards to guide the exercise of the powers they purported to confer.

By way of relief, the plaintiffs asked that the court enter an order, pursuant to 15 U.S.C. § 57a-1(f)(1), certifying the question of the constitutionality of section 21(a) to the U.S. court of appeals. The plaintiffs also asked the court of appeals to declare the disapproval resolution null and void and to order the FTC to reinstate the Used Car Rule.

On June 25, 1982, the plaintiffs filed a motion to certify the constitutional issues to the court of appeals for a ruling en banc. In their accompanying memorandum, the plaintiffs alleged that the FTC had stipulated that the complaint raised the three constitutional issues described above.

On June 29, 1982, District Judge John Garrett Penn granted the plaintiffs' motion, and the case was certified to the U.S. Court of Appeals for the District of Columbia Circuit.

On July 8, 1982, the House and Senate filed a motion for relief from the June 29th order of Judge Penn. The House and Senate argued that the stipulation between the FTC and the plaintiffs was invalid because the FTC had aligned itself with the plaintiffs by agreeing that section 21(a) was unconstitutional. Thus the stipulation "was only an agreement by parties on the same side of the case, and was not a stipulation of the parties on the opposing sides of this controversy." [Motion of the United States Senate and House of Representatives for Relief From Order of June 29, 1982, July 8, 1982 at 3] The House and Senate thus urged that they be given the opportunity-which they allegedly had not been givento present to the district court their proposals for findings of fact on the issues presented in the complaint. In addition, the House and Senate requested an opportunity to have the district court certify an additional question, namely, whether the action involved a justiciable case or controversy under Article III of the Constitution. On July 12, 1982, the FTC filed a memorandum in opposition to the motion of the House and Senate. The FTC argued that the facts in the case were of a public and documentary nature and thus required no supplementation by the House or Senate. The FTC also argued that the House and Senate had failed to identify a single fact not already included in the stipulation.

On July 23, 1982 Judge Penn issued a memorandum order in which the motion of the House and Senate for relief from the June 29th order was denied. The court noted that on July 13 it had directed the House and Senate to file their proposed findings of facts and their proposed constitutional questions. The court further noted that when it reviewed the House and Senate's proposed findings of facts on July 16 it became apparent that there were no true issues of material facts. Moreover, said the court, the proposed additional constitutional question-namely, whether the action was justiciable-was a question that did not have to be certified, since jurisdictional questions could always be presented to a Federal court. Thus, Judge Penn found that there was no reason to request that the circuit court remand the case for further proceedings.

On July 30, 1982, the Senate filed an answer in the court of appeals. In its answer, the Senate took the position that the complaint failed to state a claim upon which relief could be granted, and that, in any event, the disapproval resolution and section 21(a) were constitutional.

On August 6, 1982, the FTC filed its answer to the complaint. After admitting most of the factual allegations of the complaint, the FTC noted that the allegation that the disapproval resolution and section 21(a) were unconstitutional was a conclusion of law to which no answer was required.

On August 23, 1982, the plaintiffs filed a brief in the court of appeals. The brief likened the instant case to two other legislative veto cases, Consumer Energy Council of America v. Federal Energy Regulatory Commission, 673 F.2d 425 (D.C. Cir. 1982), appeals and petitions for certiorari pending, Nos. 81-2008, 81-2020, 81-2171, 82177 and 82-209 (U.S. Sup. Ct.) and Chadha v. Immigration and Naturalization Service, 634 F2.d 408 (9th Cir. 1980) cert. granted, 454 U.S. 812 (1981) (see pages 312 and 322 respectively, of this report for a discussion of those cases), and concluded that the legislative veto of the Used Car Rule possessed the same constitutional infirmities as the vetoes at issue in Consumer Energy and Chadha. The plaintiffs then proceeded to expound on the arguments originally outlined in the complaint.


On the same day, August 23, an amicus curiae brief was filed by 16 Members of the House of Representatives.2 The amici agreed with the plaintiffs that section 21(a) and the disapproval resolution were unconstitutional. They also agreed that the Congressional actions in question violated the Presentment Clause of the U.S. Constitution and the separation of powers doctrine. The amici further alleged that although they and the plaintiffs sought the same result, their interests were different. All legislative veto statutes, said the amici, have a particularly pernicious impact on the Congressional lawmaking process. After noting that more than 80 legislative veto provisions have been enacted by Congress since 1970, the amici argued that the pervasive use of legislative vetoes would have the following effects:

1. It will tend to loosen standards controlling delegation of powers to agencies, because Congress will perceive that it can retract the authority granted.

2. It will confuse the process of judicial review by introducing a congressional determination of the proper application of a statute.

3. It will give Congress inherently ungovernable power to participate in the execution of the laws.

2 The amici were Representatives Henry A. Waxman, Toby Moffett, Richard L. Ottinger, James H. Scheuer, Edward L. Markey, Cardiss Collins, Don Edwards, Robert W. Kastenmeier, John Conyers, Phillip Burton, Benjamin S. Rosenthal, Sidney R. Yates, John L. Burton, Anthony L. Beilenson, Thomas J. Downey and Charles E. Schumer.

The Presentment Clause provides that: "Every Order, Resolution or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill." [art. I, § 7, cl. 3]

21-618 0-83-22

4. It will invite heavy pressure on Congress by special interests for exemption from general agency authority.

5. It will place burdens on Congress to perform functions which it is not equipped, by structure or temperament, to fulfill.

[Brief of Amici Curiae, August 23, 1982, at 4]

On August 27, 1982, the FTC filed its brief. As predicted by the House and Senate, the FTC sided with the plaintiffs. The FTC's arguments, which were nearly identical to those of the plaintiffs and the amici, were as follows: (1) section 21(a) violated Article I of the Constitution because it permitted Congress to accomplish a legislative end without the concurrence of the President; and (2) section 21(a) violated the separation of powers doctrine because it permitted the Legislative branch to participate in the administration of an enacted law and to make judicial determinations on the validity of agency action.

On September 28, 1982, the House and Senate each filed an appellate brief. In its brief, the House argued that: (1) the plantiffs lacked standing; (2) the case was not ripe for adjudication; (3) the plaintiffs were in reality seeking an advisory opinion; (4) the disapproval resolution did not represent a Congressional effort to enact legislation, and therefore no presentation to the President was necessary; and (5) the FTC was not part of the Executive branch, and therefore the disapproval resolution did not usurp any executive branch function. The Senate's brief did not address the jurisdictional issues raised by the House, focusing instead on the merits. Basically, the Senate argued that section 21(a) was necessary to assure that the FTC was "democratically accountable" and that Congress exercised neither a Judicial nor Executive branch function in adopting its resolution of disapproval.

On October 22, 1982, the court issued an en banc and per curiam decision. [Consumers Union v. Federal Trade Commission, 691 F.2d 575 (D.C. Cir. 1982)] After finding that the plaintiffs had standing and that the House and Senate, by appearing as parties, had supplied the adverseness necessary to support justiciability, the court addressed the merits. The court found that the instant case was controlled by its earlier holding in Consumer Energy Council of America v. Federal Energy Regulatory Commission, supra. Accordingly, although the court specifically refused to address the issue of improper delegation, the court did hold that section 21(a) violated the separation of powers doctrine and constituted an exercise of legislative power unauthorized by Article I of the Constitution. The case was therefore remanded to the FTC.

On November 4, 1982, both the House and Senate filed notices of appeal to the U.S. Supreme Court [Nos. 82-1044 and 82-935, respectively]

Status-The case is pending in the U.S. Supreme Court.

The complete text of the October 22, 1982 opinion of the circuit court is printed in the "Decisions" section of this report at page 613.

Lewis v. Sawyer

No. 82-1911 (D.C. Cir.)

On June 2, 1982, Mildred Lewis and three other employees of the Government Printing Office ("GPO"), along with nine labor unions representing employees engaged in various trades and occupations at GPO, filed a class action suit for injunctive and declaratory relief in the U.S. District Court for the District of Columbia against Danford L. Sawyer, the Public Printer of the United States and chief executive officer of GPO. [Civil Action No. 82-1515] In sum, the suit sought to enjoin agency-wide six-day furloughs for all GPO employees during 1982, which had been announced by defendant Sawyer as a cost-cutting measure.

The complaint noted that under the Keiss Act, the compensation of most GPO employees "shall be determined by a conference between the Public Printer and a committee selected by the trades affected." (44 U.S.C. § 305(a)) If an agreement is reached in that conference, it becomes effective when approved by the Joint Committee on Printing ("JCP") which has overall supervisory authority over GPO. If the parties to the conference are unable to agree, either the Public Printer or representatives of the groups of employees may appeal to the JCP. If such an appeal is filed, the decision of the JCP is final.

Continuing, the complaint pointed out that the JCP may use "any measures it considers necessary to remedy neglect, delay, duplication, or waste in the public printing and binding and the distribution of government publications." (44 U.S.C. § 103) Further, the complaint stated, the JCP is empowered by law to act as the Board of Directors for the GPO in matters related to compensation and in other matters as well.

The complaint averred that on March 25, 1982, defendant Sawyer had advised the JCP and representatives of the plaintiff unions that he had decided to furlough a group of GPO employees. Subsequently, according to the complaint, the defendant decided to furlough virtually all GPO employees, and announced that the furloughs would take place on six days over seven months, the initial day being June 1, 1982. The overall purpose of the furloughs, the complaint stated was "to reduce the compensation of GPO employees." [Complaint, June 2, 1982, [12]

Despite the protests of the unions involved, the defendant determined that he would carry out the planned furloughs, and therefore those unions, on April 5, 1982, appealed to the JCP. In response to this appeal, the complaint stated, on May 11, 1982 the JCP met and unanimously passed a resolution which resolved that "... no furloughs, reductions in force, or other adverse personnel actions shall be imposed upon GPO employees as ad hoc solutions to immediate problems until a study of the long-range printing needs of the Federal government has been conducted by GPO/JCP and evaluated by the JCP to examine the future technological and personnel requirements of the GPO." [Id., [19]

Despite the resolution of the JCP, the complaint stated that the defendant issued a press release indicating his intention to proceed

The Joint Committee on Printing consists of the Chairman and four Members of the Rules Committee of the U.S. Senate and the Chairman and four Members of the Committee on House Administration of the U.S. House of Representatives. (44 U.S.C. § 101)

with the furloughs, although he later announced that the June 1 date would be rescheduled.

The plaintiffs asserted that if the defendant was not restrained, their rights would be violated, specifically, their rights—

(a) to receive compensation and related benefits fixed by
the JCP and the Public Printer in accordance with the
procedures set out in 44 U.S.C.A. Sec. 305 (the Kiess Act)
and to resort to such procedures in accordance with appli-
cable law;

(b) to perform services at GPO subject to the lawful man-
dates of the JCP;

(c) to be free from employment actions effected in deliber-
ate defiance of applicable law, including but not limited to
44 U.S.C.A. Sec. 103, and 44 U.S.C.A. Sec. 305, and;
(d) to be accorded due process of law. [Id., ¶ 26]

Therefore, the plaintiffs asked that the court issue a preliminary and permanent injunction barring the furloughs, and further declare that the defendant could not lawfully furlough GPO employees pending further action by the JCP.

On June 11, 1982, the plaintiffs filed an application for a writ of mandamus ordering the defendant to rescind the furlough notices issued to GPO employees. Alternatively, the plaintiffs asked the court to enjoin implementation of the furloughs pending further action by the court or authorization of the furloughs by the JCP. In a supporting memorandum, the plaintiffs charged that the case presented "the first instance of defiance of a directive of the JCP by a Public Printer in the history of the Republic." [Memorandum in Support of Application for Writ of Mandamus, or In the Alternative, Preliminary Injunction, June 11, 1982, at 3]

In their memorandum, the plaintiffs argued at the outset that the JCP resolution precluded the defendant from furloughing GPO employees and that relevant portions of Title 44 of the U.S. Code made plain that the JCP resolution was a proper exercise of the Committee's authority. Relying on 44 U.S.C. § 103, the plaintiffs reasoned that:

Plainly, the JCP directive is an appropriate exercise of its
plenary power to ". use any measures it considers nec-
essary to remedy neglect, delay. . . or waste in the public
printing and binding .." 44 U.S.C.A. Sec. 103 (1969).
Thus, government agencies have been complaining to the
JCP that their work is late, and the Committee's investiga-
tion confirmed that jobs are often backed up because of
demand. At the same time, the JCP has learned that defi-
cits are threatened at GPO and that defendant plans fur-
loughs on account of a lack of demand for GPO's services.
To deal with these alarming and apparently contradictory
circumstances, the JCP has determined to conduct a study
of the long-range printing needs of the Federal govern-
ment and the technological and personnel needs of the
Office and to interdict such "ad hoc solutions to immediate
as furloughs and layoffs pending that
study.... Clearly, faced with evidence of delay and ne-

[ocr errors]
[ocr errors]
« ForrigeFortsett »