ly 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


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 express 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

Printer's executive responsibility over GPO was subject only to Federal civil service law and to the provisions of the Civil Service Reform Act, the defendant reiterated.

Once more, the defendant asserted that the JCP had been delegated only "general oversight authority" over GPO, and that its jurisdiction did not include day-to-day management matters such as furloughs. Accordingly, the defendant concluded, the district court erred in ruling that the JCP resolution provided a basis for barring the furloughs.

Finally, the defendant again objected to the lower court decision on procedural grounds. The plaintiffs' rights to challenge his action arose only under the Civil Service Reform Act, the defendant argued, and therefore the case should have been dismissed when the plaintiffs failed to pursue the administrative remedies available to them under that statute. Jurisdiction was also lacking in the district court, the defendant again asserted.

On September 17, 1982, the plaintiffs-appellees filed their brief in the appeals court also basically restating the arguments they had made in the district court. First, they noted, the lower court properly found that the JCP had the power under 44 U.S.C. § 305 to countermand the defendant's furlough decision, and the legislative history of the Kiess Act supported the JCP's authority. Moreover, the plaintiffs added, 44 U.S.C. § 103 also authorized the JCP directive, since the resolution was an attempt to remedy delay and neglect in the Government's printing requirements. On the other hand, said the plaintiffs, the defendant's employment and management authority under 44 U.S.C. §§ 301 and 305 did not authorize him to disregard the JCP directive, particularly since GPO was a legislative agency. Even if the statutory language and legislative history were less clear on these issues, the plaintiffs once again contended, the court should defer to the JCP's view of its authority since it was responsible for administering the relevant statutes. The plaintiffs reasoned:

Courts generally adhere to the "principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong." National Fed'n. of Federal Employees Local 1451 v. FLRA, 625 F. 2d 191, 193 (D.C. Cir. 1981) (collecting authorities). Generally, that principle applies when the courts review statutory determinations by administrative agencies whose officials are mere appointees. The principle should govern, we submit, when the officials charged with administering a statute (here Title 44) are elected representatives of the people acting on behalf of a coordinate branch of the Government in an internal, housekeeping matter pertaining to that branch. [Brief for Appellee, September 17, 1982, at 22 (footnote omitted)]

Turning to the defendants' Civil Service Reform Act argument, the plaintiffs asserted that the Act conferred rights on employees and did not address the allocation of power between the JCP and the Public Printer. Therefore, according to the plaintiffs, its passage did not strip the JCP of the authority to deal with the matters

it did.

With respect to procedural issues, the plaintiffs insisted that the requirements for the issuance of a declaratory judgment were properly met and the lower court had jurisdiction to grant relief. Further, the plaintiffs argued, they were not required individually to exhaust their remedies before the Merit Systems Protection Board prior to seeking judicial relief, since the Board was "an inappropriate tribunal to resolve a controversy involving the allocation of authority between the Congress and its designated agent, the JCP, on the one hand, and the Public Printer, a Presidential appointee on the other." [Id. at 34] In any event, the plaintiffs asserted, the administrative remedy was inadequate and pursuing it would be a "vain exercise."

In conclusion, the plaintiffs again argued that the defendant's conduct deprived them of due process of law. (The due process issue had not been addressed by the lower court, which reached its decision on statutory grounds.)

On September 27, 1982, the defendant filed a reply brief which emphasized that the JCP resolution could not have been predicated on the Kiess Act since that act applied only to a segment of GPO's workforce. Furthermore, the defendant insisted, the length of the workweek and eligibility for overtime were not subject to Kiess Act negotiations and, in any event, were irrelevant to the plaintiffs' rates of wages. Therefore, the defendant concluded, the JCP had no authority over the matter. Additionally, said the defendant, the lower court record demonstrated that the JCP did not adjudicate an appeal from Kiess Act negotiations nor did it take remedial measures pursuant to 44 U.S.C § 103. Finally, the defendant argued once more that he was justified in scheduling the GPO furloughs and that the district court did not have jurisdiction to hear the case under the Declaratory Judgment Act.

In his reply brief, the defendant also contended that the history of the parties' recent labor negotiations showed that matters pertaining to furloughs were reserved management rights. On November 12, 1982, having been granted permission by the court to do so, the plaintiffs filed a statement in response to the defendant's reply brief, strongly disputing the contention that they had adopted the position that furloughs were reserved to the sole discretion of management.

Also on November 12, 1982, the case was argued before a panel of the appeals court and taken under advisement.

On November 22, 1982, the court issued a per curiam order directing the parties to file simultaneous supplemental briefs on "whether the factual situation in the present case constitutes an impermissible violation of the separation of powers doctrine as expressed by this Court in its opinion issued on October 22, 1982, in the case entitled Consumers Union of U.S., Inc., et al. v. Federal Trade Commission, et al., No. 82-1737. See also Consumer Energy Council of America v. Federal Energy Regulatory Commission, 673 F.2d 425 (1982)." (See pages 327 and 322 respectively of this report for discussions of those cases.)

On January 5, 1983, both the plaintiffs and the defendant filed supplemental briefs on the separation of powers issue. The plaintiffs argued that the JCP resolution did not violate the separation of powers principle because "GPO is and since its inception in 1861

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