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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") 1 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., 
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. enate 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
(b) to perform services at GPO subject to the lawful man-
(c) to be free from employment actions effected in deliber-
(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
glect of the Government's printing requirements, and the
Further, said the plaintiffs, the JCP's action was also authorized by 44 U.S.C. § 305, which gives the JCP the power to fix the compensation of GPO employees by exercising its appeal and approval powers. According to the plaintiffs, "one incident of that power is authority to fix the work week of GPO employees" and the GPOwide furloughs here constitute a reduction in the work week." [Id. at 12]
The plaintiffs next rejected what they understood to be the defendant's main argument-that his defiance of the JCP directive was permitted by 44 U.S.C. §§ 301 and 305. In their view, those provisions, which give the Public Printer some discretion over the size and composition of the GPO workforce, were subordinate to JCP's specific statutory authority to supervise GPO:
Sec. 301 provides that the Public Printer is appointed ".
The existence of statutory provisions conferring discretion upon the Public Printer does not begin to support his contention that the JCP has no authority under other provisions of Title 44 to override the Public Printer's judgment. On the contrary, as we have seen, the JCP has specific authority to supervise the Public Printer with respect to a host of matters within the ambit of his general management authority, including fixing compensation of employees, 44 U.S.C.A. Sec. 305, discussed, supra, deciding what work shall be done outside the GPO (44 U.S.C.A. Sec. 501(a)(1), 504 (1969)), determining what paper the GPO will buy and how its requirements will be filled, 44 U.S.C.A. Sec. 509, 512, 517 (1969), and arranging for the sale of duplicate stereotype and electrotype plates. 44 U.S.C.A. Sec. 505 (1982 Supp.). The office of Sec. 103, authorizing the JCP to "... use any measures it considers necessary to remedy neglect, delay, duplication, or waste. . ." (emphasis added) plainly is to supplement the JCP's particular powers with a grant of overall supervisory power over the Public Printer's exercise of his discretion. [Id. at 15-17]
In any event, said the plaintiffs, the court should defer to the JCP's view of its authority since the Committee was responsible for administering the relevant statutes. Additionally, the plaintiffs noted, GPO was a legislative agency and the Public Printer was "Congress' own agent and employee." [Id. at 18] As such, the plaintiffs concluded, he was subject to the directives of those who headed the branch of government employing him: "He may no more invoke his discretion to determine, for example, how many employees are necessary to accomplish the public work, to countermand an order of the JCP than the head of any executive department may determine how to carry out the department's mission free of presidential control. Defendant is not, in short, a co-equal branch of government." [Id. at 19]
Finally, the plaintiffs also argued that the defendant's conduct violated the Kiess Act (because that act established their right to have their compensation determined in conferences with the Public Printer and to have any disagreement resolved in an appeal to the JCP) and deprived them of due process of law (because the statutory scheme governing employment at GPO created interests that constituted "property" that could not be taken from employees without due process). The plaintiffs_concluded by arguing that a writ of mandamus or, alternatively, a preliminary injunction should be issued to prevent irreparable injury. They noted that such relief should issue without the need for the approximately 6,000 GPO employees individually to exhaust the administrative remedies available to their class through the Merit Systems Protection Board.
On June 21, 1982, the defendant filed a motion for summary judgment and a memorandum in support and in opposition to the plaintiffs' application for a writ of mandamus or alternative relief. Initially, the defendant contended that the Public Printer's Congressional delegation of authority included the power to institute furloughs at GPO, particularly in view of 44 U.S.C. §§ 301 and 305. Under the former section, the defendant pointed out, the Public Printer was given the responsibility "to take charge of and manage" GPO. That grant of authority, the defendant argued, "must, of necessity, include the power to retain and to discharge employees." [Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment . . ., June 21, 1982, at 10] This view was confirmed by the text of section 305, the defendant asserted, which gives the Public Printer the power to employ those necessary to do the work of GPO, and which also states that he "may not employ more persons than the necessities of the public work require. . ." Further, said the defendant, "contrary to the plaintiffs' suggestion that the actions taken here are unprecedented, Public Printers have repeatedly used their powers since the creation of the agency to furlough employees" [Id. at 12], and such furloughs had been upheld in an Attorney General's Opinion issued in 1925. The Civil Service Reform Act of 1978 (5 U.S.C. §§ 1101, et seq.) supported the furlough power as well, the Printer argued.
Second, the defendant maintained that the oversight authority of the JCP did not extend to reviewing the proposed furloughs. The delegation of authority to the JCP codified in the Kiess Act "plain