glect of the Government's printing requirements, and the
possibility of waste, the Committee is authorized to take
the measures it has "considered necessary" to investigate
and remedy the situation. 44 U.S.C.A. Sec. 103, supra. (Id.

at 11-12 (footnote omitted)] 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 ".
to take charge of and manage the Government Printing
Office ...". Sec. 305 authorizes him to “. . . employ jour-
neymen, apprentices, laborers and other persons necessary
for the work of the Government Printing Office ..." and
forbids him to “... employ more persons than the necessi-
ties of the public work require nor more than four hun-
dred apprentices at one time ...". Of course, those statu-
tory provisions confer, guide, and control the discretion of
the Public Printer to determine the size and composition
of the GPO work force. Thus, Sec. 305 categorically forbids
him to hire more than 400 apprentices. And in deciding to
hire employees, the Public Printer must make an assess-
ment of how many are needed to meet the requirements of
the public work.

The existence of statutory provisions conferring discre-
tion upon the Public Printer does not begin to support his
contention that the JCP has no authority under other pro-
visions of Title 44 to override the Public Printer's judg-
ment. On the contrary, as we have seen, the JCP has spe-
cific authority to supervise the Public Printer with respect
to a host of matters within the ambit of his general man-
agement authority, including fixing compensation of em-
ployees, 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 du-
plicate 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 . . ." (empha-
sis 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. Înitially, 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 "plainly extends only to arbitrate disputes surrounding rates of wages and compensations,” insisted the defendant. (Id. at 14 (emphasis in original)] The JCP did not have authority over other terms of employment, the defendant argued, and the “JCP's resolution, which can only be viewed as the result of a concededly intensive, ex parte lobbying campaign by plaintiff-unions, cannot amend either the Kiess Act or the Civil Service Reform Act.” [Id. at 14]

Third, the defendant argued that the GPO furloughs were being conducted in accordance with applicable Federal personnel law, specifically the Civil Service Reform Act. The scope of review over such matters, the defendant added, was "extremely narrow.

Fourth, the defendant asserted that the plaintiffs had failed to exhaust their administrative remedies—via appeal to the Merit Systems Protection Board-and therefore were not entitled to any judicial relief. Moreover, said the defendant, since review of any decisions ultimately reached by the board would be available only in a U.S. Court of Appeals or in the Court of Claims, the plaintiffs had failed to state a claim upon which relief could be granted in the district court.

Finally, the defendant contended that the predicates for the issuance of a preliminary injunction were not present, since the plaintiffs could demonstrate neither that they were likely to prevail on the merits nor that they would suffer irreparable injury absent judicial intervention.

On June 24, 1982, the defendant filed with the court a copy of an opinion from the Office of the General Counsel of the Office of Personnel Management which concluded that:

[I]t is evident that GPO is governed, to the same extent as Executive Branch agencies, by civil service laws and regulations regarding adverse actions, including reductions-in-force and furloughs.

Nothing in the relevant laws would indicate Congressional intent that personnel practices and management rights thereto are to be limited by the application of any other statutes.

[OPM Memorandum, June 23, 1982, at 11-12] On June 28, 1982, the plaintiffs filed a motion for summary judgment. In support of this motion, in addition to incorporating by reference the arguments from their June 11th brief, the plaintiffs filed a supplemental memorandum which contended at the outset that the Public Printer had never furloughed any employees in defiance of the JCP. The plaintiffs elaborated:

We call the Court's attention to the glaring absence from
defendant's historical materials of any evidence that the
Public Printer has ever furloughed, “riffed”, or laid off em-
ployees in defiance of the JCP. Indeed, the materials show
that layoffs occurred often in the past when Congress ad-
journed and "These discharges were generally accepted as
a matter of course, it being understood that the Govern-
ment Printing Office did not have need for as many em-
ployees after adjournment as when Congress was in ses-
sion.” 1925 Ann. Rep. of the Public Printer 101-102. But

that policy has apparently been abandoned since 1947.
Hence the decision to resurrect it constitutes a policy
change that GPO's Board of Directors, the JCP, is author-
ized to consider and, if it deems fit, reject or modify. Noth-
ing in the past history shows that the JCP, which appar-
ently was not statutorily created until 1895, after the regu-
lar layoff policy was in place, lacked the power to decide
such issues. The Public Printer is not a free agent, he is
the head of a Congressional agency and Congress has de-
creed that the JCP shall supervise him. (Plaintiffs' Supple-
mental Memorandum of Points and Authorities. . . . In
Support of Plaintiffs' Motion for Summary Judgment,

June 28, 1982, at 1-2 (footnote omitted)) Additionally, the plaintiffs attempted in their supplemental memorandum to rebut the defendant's arguments on jurisdiction, the application of the Civil Service Reform Act, and the likelihood of irreparable injury should injunctive relief not be granted by the court.

On July 2, 1982, U.S. District Judge Oliver Gasch issued a memorandum and order: (1) denying the defendant's motion for summary judgment; (2) granting in part and denying in part the plaintiffs’ motion for summary judgment; (3) declaring that the Public Printer did not have authority to furlough employees at GPO as long as he was under the mandate of the May 11th resolution of the JCP; and (4) directing the Public Printer not to implement the proposed furloughs as long as the JCP resolution was in force. (Lewis v. Sawyer, Civil Action No. 82–1515 (D.D.C. 1982)]

After reviewing the statutory and historical background, and the specific facts of the case, Judge Gasch concluded that "in the context of this particular conflict between the Joint Committee and the Printer, ... the Joint Committee's will must prevail. In the circumstances of this case, the Joint Committee having gone on record against furloughs, the Printer does not have authority to furlough workers.” [Memorandum, July 2, 1982, at 8] Judge Gasch placed great emphasis on the statutory scheme and on the fact that that scheme placed final authority to resolve disputes in the hands of the JCP. He explained:

As the discussion of the statutory and historical background illustrates, the provisions of Title 44 contain a potential for conflict which has been dormant for 122 years. Under 44 U.S.C. § 301 the Printer's duties are to "take charge and manage” the GPO. Thus as head of GPO, he would seem to have the usual management right to reduce the work force if he follows the procedures outlined in chapter 75 of title 5 of the United States Code. Moreover, he is under a statutory duty not to employ “any more persons than the necessities of the public work require." This statutory language would suggest that the Printer must furlough workers if there is not enough work for them to do. However, Congress has historically exercised more control over the Printer's activities than it has over any purely administrative agency. Thus the Joint Committee not only has the word on "wages, salaries, and com

pensation” 10 pursuant to 44 U.S.C. $ 305, but also has
broad authority to “use any measures it considers neces-
sary to remedy neglect, delay, duplication, or waste in the
public printing.Id. § 103. In the exercise of its powers
under Title 44, the Joint Committee adopted its resolution
of May 11, 1982, which commanded the Printer not to fur-
lough GPO workers. Although the statutory scheme envi-
sions a cooperative relationship between the Printer and
the Joint Committee, that scheme also places final author-
ity to resolve disputes in the hands of the Joint Commit-
tee, as the agent of Congressional oversight.

10 These furloughs clearly fall in the area of "wages, salaries, and compensation.”
Furloughs affect the employees' eligibility for overtime pay; hence furloughs affect
wage rates. Moreover, the Printer decided to implement these furloughs for the ex-
press purpose of cutting the amount of wages and compensation he would have to

pay. (Id. at 7-8 (footnote omitted)]

Turning to the question of relief, Judge Gasch ruled that the plaintiffs were not entitled to a preliminary injunction because the possible temporary loss of pay did not constitute “irreparable harm.” However, Judge Gasch did find that the court had jurisdiction over the action because "the Printer's refusal to implement the resolution of the Joint Committee deprives these plaintiffs of a right assured them by Congress, . . . namely, the right to have wage disputes resolved by the Joint Committee." [Id. at 9] Judge Gasch also ruled that the case was ripe for disposition on the merits because there were no disputed issues of material fact. The judge found that a declaratory judgment would be appropriate because “the public interest will be well served by a clarification of the conflicting claims of the Printer and the Joint Committee." (Id.]

Judge Gasch concluded his memorandum with a summary of his holding:

In the absence of Joint Committee action, the Printer undoubtedly would have the power to furlough workers. However, the statutory scheme under which he operates subjects his decision in these matters to the will of the Joint Committee on Printing. Because the Joint Committee has forbidden furloughs in this case, the Printer's normal discretion in these matters is severely circumscribed. In sum, the Printer has no authority to go ahead with furloughs as long as the Joint Committee's May 11,

1982 resolution is in force. (Id. at 10) On August 6, 1982, the defendant filed a notice of appeal of Judge Gasch's July 2nd order to the U.S. Court of Appeals for the District of Columbia Circuit. (No. 82-1911)

On August 9, 1982, the defendant filed his brief in the appeals court essentially restating the arguments he had made in the district court. Once again, the defendant relied on the statutory scheme, specifically 44 U.S.C. $$ 301 and 305, to support his contention that the Public Printer had the authority to furlough employees. In fact, insisted the defendant, he was under a “statutory directive" to keep GPO's workforce to an absolute minimum. The

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