Petition for Writ of Certiorari — Ehm v. National Railroad Passenger Corp.

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84 E 2 1 1 Office Supreme Court, U.S.

FILED

AUG 6 1984

ALEAANDER l- STEVAS,

NO CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1984

Alfred E. Ehm, P<titioner

National Railroad Passenger Corporation

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Alfred E. Ehm, pro se

170 Carousel Drive

San Antonio, Texas 78227

512/673-8982

NO.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1984

Alfred E. Ehm, Petitioner

National Railroad Passenger Corporation

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Alfred E. Ehm, pro se

170 Carousel Drive

San Antonio, Texas 78227

512/673-8982

Print.d by: TREVINO PRINTING CO. 225-4459

QUESTIONS PRESENTED

May a district court properly decline to carry out its duty

as the statutorily designated enforcement arm of the

Freedom of Information and the Government in the

Sunshine Act, 5 U.S.C. §§ 552(a)(4)(B) and 552b(g)-(h)?

May Amtrak, or any “agency” fer that matter, lawfully

refuse to comply with any of the Freedom of Information

Act’s Federal Register publication mandates, 5 U.S.C.

§ 552(a)(1)(A)-(E)?

May Amtrak lawfully exempt itself from the applicability

of the Government in the Sunshine Act on the basis of an

implied repeal of the controlling definitions of “agency”

given by 5 U.S.C. §§ 552(e) and 552b(a)(1)?

May a district court lawfully declare 31 U.S.C. § 3526{d),

which provides for the conclusiveness of all Comptroller

General’s decision on the executive branch of the federal

government, to be of no force and effect in respect to

Amtrak?

TABLE OF CONTENTS

NS So as en apd cua dees eause ee

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EE | EET TTT eT TET OTT OS CETTE

pO ET re PC ET TEC eee TT CTT eT ee

Constitutional and Statutory Provisions Involved ....

Statement of the Cases

PE Ss EGG ied eek thas che tse u ba Keak ee Oa

PEI = Ee Ve ccs deo ccesaceuecesvacwes

Reasons for Granting the Writ

To Compel Judicial Enforcement of the FOIA

eg reer reer eT TT eeTeee

To Enforce the FOIA’s Federal Register

Peer ere Tere Tee

To Uphold the Rule that Repeals by Implication

PR TNE PE so chbek ceded etkewesaccses

To Assure the Conclusiveness of Comptroller

og PT eee errr ree ee ere

FI ing te ce ak Gime

Pee OF Saervide Oe WAM ik a 65k oc cvees ckeecsends

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Appendix A: Opinions Below

Memorandum of the U.S. Court of Appeals for the

District of Columbia Circuit of March 23, 1984 .. A-1

Order of the U.S. District Court for the District of

ies OF ie G FRGS gk dooce deeeedustaas A-3

Order of the U.S. District Court for the District of

Ee | ee or eee A-4

Judgment of the U.S. Court of Appeals for the District

of Columbia Circuit of March 23, 1984 ......... A-5

Order of the U.S. Court of Appeals for the District of

Columbia Circuit of May 9, 1984 ............... A-7

Appendix B: Statutes Involved

Freedom of Information Act, 5 U.S.C. § 522 (1982) .. A-9

Government in the Sunshine Act, 5 U.S.C. § 552b

SUPUEE wad Can cocathy cide eer reer eenenti A-9

Federal Register Act, 44 U.S.C. § SOI et. seq. (1982) A-10

Rail Passenger Service Act, 45 U.S.C. § S501 et seq.

COED 40 Shas ae pees 08 ae Peer A-12

31 U.S.C. & SILO CTI) onic cece cents cedecevensess A-12

ST CO. SG Fret hk ok 5k eee na ed eee aa A-13

TABLE OF AUTHORITIES

Administrator, FAA v. Robertson, 422 U.S. 255,

pk, | Bane ah yr ones Martine eoene crept ah a ny eatr ner on 21

A.G. Becker Incorporated v. Board of Governors of

Federal Reserve System, 502 F.Supp. 378,

Fee CRE SOY 6 vnvens ceabacakveessesennes

American Civil Liberties Union v. Brown, 609 F.2d 277,

pe ke Pee ee ere es ee

Antelope, The, 23 U.S. [10Wheat.] 67, 114 (1825)

Bankers Life & Casualty Co. v. Holland, Chief Judge,

Ck ee rere re er ae

Binns v. Lawrence, 53 U.S. [12 How.] 9, 17 (1851) ...

Bristol-Meyers Co. v. FTC, 424 F.2d 935, 938 (D.C.

Cir. 1970), cert. denied, 400 U.S. 824 (1970)

Cabais v. Egger, 527 F.Supp. 498, 502 n. 13

(iti log) | PP eerer err err ys ere rr Terres

Calder v. Bull, 3 U.S. [3 Dall.] 386, 399 (1798) ......

Chrysler Corp. v. Brown, 441 U.S. 281 (1979) .......

Coastal States Gas Corp. v. Dep’t of Energy,

617 F.2d 854, 861 (D.C. Cir. 1980), 54 A.L.R.

, eS @ 2). ry re er eer rr

EPA v. Mink, 410 U.S. 73, 79, 93 (1973) .... .....

Federal Open Market Committee v. Merrill, 443 U.S.

PE SE OTED © we eneeesyenesuceeeete tenn

Fisher v. Renegotiation Board, 473 F.2d 109, 112,

114 (D.C. Cir. 1972), on remand, 355 F. feaciaca

RETG Cees SOTUD 6c keh hcncecdcniekacaneess

Getman v. NLRB, 450 F.2d 670, 672, 679 (D.C. Cir.

1971), 16 ALR. FOR. SOP CIGTS) oo cvdcrncivues

Greene County Planning Board v. FPC, 559 F.2d 1227,

1244 (2nd Cir.), cert. denied, 434 U.S. 1086 (1976)

Hoang Ha v. Schweiker, 541 F.Supp. 711, 713

ee ans EEE Ade se baWAbewenw chs pec buee ax 13

Marks v. CIA, 590 F.2d 997 (D.C. Cir. 1978) .......... 13

Maxwell v. Moore, 63 U.S. [22 How.] 185, 191 (1859) 23

Mead Data Central, Inc. v. U.S. Dep’t of the Air Force,

se Se So, errr rrr rT eee 14

Miguel v. McCarl, 291 (U.S. 442, 455-456 (1933) ....... 23

Morton v. Mancari, 417 U.S. 535, 551 (1974) ....... 21

Morton v. Ruiz, 415 U.S. 199, 232-233, 235-236

(esa b saw hs cu cha ORs eee Fake eee ad bviw ce 18

NLRB vy. Sears, Roebuck & Co., 421 U.S. 132, 136

SECEDE. ce an Nas chwk pack eee ae ease 18

NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1979) .. 19

Nat'l Motor Freight Traffic Ass’n v. United States,

268 F.Supp. 90, 93, 95-97 (D.D.C. 1967) (3-judge

court), aff'd mem. per curiam, 393 (U.S. 18)

(Fee ehck pane esecinceehhndeuekinesesse wens 18

Open America v. Watergate Special Prosecution Force,

ope 2 8 fe ee errr rrr 13

Pettit v. United States, 203 Ct. Cl. 207, 488 F.2d 1026,

1031 (1973), disapproved on other grounds sub nom.

United States v. Testan, 424 U.S. 392 (1975),

motion denied, 424 U.S. 957 (1976) ............ 23

Ray v. Turner, 587 F.2d 1187 (D.C. Cir. 1978) ....... 15

Real Estate Savings Bank of Pittsburgh v. United States,

16 Ct. Cl. 335, 352 (1880) aff’d, 104 U.S. 728,

Tae COOEE hacks sis Wea beakaneuaeenuunecee ss 23

Regional Rail Reorganization Act Cases, 419 U.S. 102,

a ee repre er re 21

Renegotiation Board v. Bannercraft Clothing Co., 415 U.S.

Re SEO. Sackahinctendeaneseeabeawes 12, 13, 18

Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26

SE Pssdk tbo ehh sch ewened OME NRES aK bee kes

Schwartz v. IRS, 511 F.2d 1303, 1306 (D.C. Cir. 1975)

Sears, Roebuck & Co. v. GSA, 384 F.Supp. 1003-1004

(D.D.C.), aff'd, 509 F.2d 527 (D.C. Cir.

ME ah uL Kent eaee uote Cae vey chs ce eke ston

Soucie v. David, 448 F.2d 1067, 1076 (D.C. Cir. 1971)

Tax Analysts and Advisors v. IRS, 362 F.Supp. 1298,

1303 (D.D.C. 1973), modified in part and remanded,

ee ee ee Ss WP nce ha kde eeadavn

Theriault v. United States, 503 F.2d 390, 392 (9th Cir.

1974), on remand, 395 F.Supp. 637, 641 (C.D. Cal.

2 EP Rr eae Cee eee a ee

United States v. Borden Co., 308 U.S. 188, 198 (1939)

Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert.

SE, SEs Bh STE CIP 6 ks waka wee Feaccewes

Wood v. United States, 41 U.S. [16 Pet.] 342, 363 (i842)

To the Honorable, the Chief Justice and Associate Justices of

the Supreme Court of the United States:

Alfred E. Ehm, the petitioner herein, prays that a writ of

certiorari issue to review the judgment of the U.S. Court of

Appeals for the District of Columbia Circuit entered in this

matter on March 23, 1984.

OPINIONS BELOW

The memorandum of the court of appeals whose judgment

is herein sought to be reviewed is reprinted in Appendix A,

infra, pp. A-1 to A-2. The final orders of the U.S. District

Court for the District of Co!umbia are also printed in Appendix

A, infra, pp. A-3 to A-4.

JURISDICTION

The judgment of the court of appeals was entered on

March 23, 1984. A timely petition for rehearing was denied on

May 9, 1984. Appendix A, infra, p. A-7. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

These two cases involve-

1. The concept of equal protection of the laws inherent in the

due process of law guaranteed every citizen of tl.2 State of Texas by

the fifth amendment to the Constitution of the United States,

which provides in pertinent part that “[nJo person shall be...

deprived of life, liberty, or property, without due process of

law...” (emphasis added).

2. The Federal Register publication mandates of the

Freedom of Information Act, 5 U.S.C. § 552(a)(1); the “public

notice and comment” provision of the Rail Passenger Service

es, pa

Act, 45 U.S.C. § 564(c)(1)(E); 44 U S.C. § 1505 (a)-(b), which set

out the classes of documents required to be published in the

Federal Register, 44 U.S.C. § 1508, which pertains to notices of

opportunity to be heard, and 44 U.S.C § 1510(a), which lists the

classes of documents required to be published in the Code of

Federal Regulations. Appendix B, infra, pp. A-8 to A-12.

3. The two definitions of “agency,” which conjunctively

govern the applicability of the Government in the Sunshine

Act, 5 U.S.C. §§ 552(e) and 552b(a)(1). Appendix B, infra,

p. A-9.

4. 31 U.S.C. § 3526(d), which provides for the conclusive-

ness of all Comptroller General’s decisicns on the executive

branch of the federal government. Appenaix 8B, infra, pp. A-12

to A-13.

5. The summary of decision B-114829 rendered by the

Comptroller General on Sep. 8, 1978. 57 Comp. Gen. 773.

Appendix B, infra, pp. A-13 to A-14.

STATEMENT OF THE CASES

The first case is an action brought by Ehm on April 4, 1983,

pursuant to 5 U.S.C. § 552(a)(4)(B). The complaint sought

to compel Amtrak to comply with certain of the Freedom of

Information Act’s Federal Register publication mandates, in

particular 5 U.S.C. § 552 (a)(1)(B),(C), and (E). The Federal

discontinuances and inform the public of the opportunity to

be heard, as provided for by 45 U.S.C § 564(c)(I)(E) and 44

U.S.C. § 1508.

The second case is an action brought by Ehm on May 6, 1983,

pursuant to 5 U.S.C. § 552b (g)-(h). The complaint sought to

compel Amtrak’s board of directors to comply with the Govern-

ment in the Sunshine Act’s Federal Regisier publication and

rule-making mandates, as provided for by 5 U.S.C. § 552b (e)

(3) and (g), and collaterally by 5 U.S.C. § 552(a)(1)(A)-(E),

and 44 U.S.C. §§ 1505 and 1510.

THE FOIA CASE

On Jan. 24, 1983, after having seen a report in the press that

Amtrak intended to commence auto-ferrying service between

Virginia and Florida, Ehm requested Amtrak to comply with

5 U.S.C § 552(a)(1) by promptly publishing in the Federal

and informing the public of its right to comment. Amtrak

rejected Ehm’s request twenty days !ater on the ground that

it did not “constitute a valid FOIA request.”

Having then in his possession a number of letters informing

him that Amtrak did not intend to respond to any of his FOIA

requests, and having by then been subject to a blanket denial

of his FOIA requests for a year and a half, Ehm on March 18,

1983, notified Amtrak’s multi-member head of his intent to bring

suit, if the agency refused to comply with his Jan. 24 FOIA

request. Amtrak’s board of directors did not reply and Ehm,

therefore, filed his complaint for injunctive relief on April 4.

Amtrak responded to the suit by moving for dismissal on the

grounds that the court lacked subject matter jurisdiction, the

complaint failed to state a claim upon which relief could be

granted, and Ehm had failed to exhaust his administrative

remedies. To cure what was technically a failure to comply

with the provisions of 5 U.S.C. § 552(a)(6)(A)(ii), Ehm on

May 9 filed a formal appeal from the denial of his FOIA

request. Amtrak’s general counsel denied the appeal on May 27

for the reason that Ehm’s Jan. 24 request did not constitute

a valid FOIA request and the additional reason that the appeal

was untimely.

On June 6, 1983, following a brief hearing in the course of

which the matter of Ehm’s alleged failure to exhaust his ad-

ministrative remedies was not even mentioned, the district

court dismissed the complaint “due to plaintiffs failure to

exhaust his administrative remedies.” Appendix A, infra, p. A-3.

The court of appeals did not address the correctness of the

district court’s finding that Ehm had failed to exhaust his

administrative remedies, but held instead that Ehm’s FOIA

of Jan. 24, 1983, “ did not seek the release of information... ,

[but] appears in reality to have been an attempt to compel

Amtrak to engage in informal Administrative Procedure Act

rulemaking.” Aprendix A, infra, p. A-1.

= s

THE SUNSHINE ACT CASE

Subsection (g) of the Government in the Sunshine Act

provides that every agency subject to the Act must publish in the

Federal Register, pursuant to the “public notice and comment”

provisions of 5 U.S.C. § 553, regulations implementing the

requirements of subsections (b) through (f) of the Act. Having

determined that Amtrak had not promulgated these statutorily

mandated regulations, Ehm on Aug. 27, 1981, petitioned

Amtrak under 5 U.S.C. §§ 553 (e) and 552 (a) (1), as well as

44 U.S.C. § 1505, to promptty publish such rules in the Federal

acknowledged receipt of the petition, but took no action. Since

the rules in question collaterally constituted “information”

required, by paragraph (a)(1) of the Freedom of Information

Act, to be currently published in the Federal Register, Ehm

on Nov. 3. 1981, resubmitted his petition in the form of an

FOIA request. Amtrak replied to this and two other requests

by informing Ehm on Nov. 17 that it did not intend to respond

to those three requests. nor “to any and all future FOIA

requests.”

Paragraph (e)(3) of the Sunshine Act requires that a notice

of the time, place, and subject matter of any meeting of

Amtrak’s board of directors be printed in the Federal Register

at least seven days prior to each meeting. Amtrak gave notice

at 42 Fed. Reg. 13635 (March I1, 1977) of its intention to

comply with this provision and in fact published these Sunshine

Act meeting notices commencing in April 1977. On March 12,

1982, however, Amtrak announced by notice at 47 Fed. Reg.

10932 that it would no longer publish such notices in the

Federal Register. The last “Sunshine Act notice” appeared,

thus, at 47 Fed. Reg. 7047 (Feb. 17, 1982).

Because the Sunshine Act meeting notices collaterally

constituted “information” of the type required by 5 U.S.C.

§ 552(a)(1) to be currently published in the Federal Register,

Ehm on April 2, 1982, petitioned the U.S. District Court for

the Western District of Texas under the Freedom of Infor-

mation Act to temporarily restrain the Amtrak boark of

directors from not printing the meeting notices in the Federal

on the grounds that 5 U.S.C. § 552(a)(1)(A) and (E) did not

apply and that a suit under the Sunshine Act was required to

compel Amtrak to comply with the provisions of 5 U.S.C.

§ 552b (e) (3).

Ehm, therefore, petitioned the district court for the District

of Columbia on May 6, 1983, for an order directing Amtrak to

comply with the provisions of 5 U.S.C. § 552b(e)(3) and (g).

Amtrak responded to the suit by moving for dismissal on the

grounds that the court lacked subject matter jurisdiction and

the complaint failed to state a claim upon which relief could be

granted. On July 25, 1983, the district court ruled that Amtrak

is not subject to the Sunshine Act because it is not an “agency”

as defined in 5 U.S.C. §§ 552(e) and 552b(a)(1). Appendix

A, infra, p. A-4. The court did so without taking any evidence

and without complying with subsection 552b(h)(1), which

provides that the burden of proof is on the agency to sustain

its action. The court of appeals affirmed and found addi-

tionally that the appeal was frivilous.

In arguing that Amtrak is subject to the Sunshine Act

because it is an “agency” as defined in 5 U.S.C. §§ 552(e) and

552b(a)(1) and because of clearly expressed congressional

intent to that effect, Ehm relied upon Comptroller General’s

decision B-114829. which possesses, pursuant to 31 U.S.C.

§ 3526, the force and effect of law and is conclusive on Amtrak.

Appendix B, infra, p. A-13. Amtrak countered that the

decision is erroneous as a matter of law and that the corpora-

tion is not subject to the decision because it is not a component

of the executive branch of the government. All of Ehm’s urgings

that decision B-114829 is binding and conclusive on Amtrak

because of the mandate of subsection 3526(d) were entirely

disregarded by both the trial and the appellate court.

REASONS FOR GRANTING THE WRIT

Certiorari Should Be Granted to Confirm that a District

Court May not Decline to Enforce the

Freedom of Information and the Government in the

Sunshine Act

As this Court noted in Renegotiation Board v. Bannercraft

Clothing Co., 415 U.S. 1, 13, 19 (1973), the Congress saw fit

to designate the district courts the “enforcment arm” of the

Freedom of Information Act, by giving them jurisdiction to

enjoin an agency from withholding agency records, to order

the production of agency records improperly withheld, and

to grant other equitable relief. 5 U.S.C. § 552(a)(4)(B). The

same is true of the Government in the Sunshine Act, the only

difference being a single exception in which original jurisdic-

tion is vested in the District of Columbia Circuit. 5 U.S.C.

§ 552b(g)-(i). Thus, both acts not only grant every “person”

certain rights and immunities, but also provide for a practical

and speedy means to vindicate such rights and immunities.

If a person then turns to a district court to vindicate a right

granted him by these two statutes and the court in effect

declines to carry out its statutory duty of enforcing the man-

dates of these acts, the result is that 1) the congressional

purposes of these laws are thwarted, 2) no other adequate

specific remedy save maybe an application for an extraor-

dinary writ of mandamus is available, 3) the person is unlaw-

fully deprived of a right granted him by an act of Congress,

and (4) the injured person is unconstitutionally denied his

right to the equal protection of the laws implied in the “due

process” clause of the fifth amendment.

It appears that the question whether a district court may

decline to carry out its statutory function as the enforcement

arm of the FOIA and Sunshine Act has not come before this

court. A case in point, in which the court of appeals held

that a district court may not evade the responsibility for deter-

mining the validity and extent of an agency’s claims for exemp-

tion, was brought before this Court on an application for a

=| =

writ, but was not accepted. Bristol-Meyers Co. v. FTC,

424 F.2d 935, 938 (D.C. Cir. 1970), cert. denied, 400 U.S. 824

(1970). A number of cases set out and confirm the duties of

the district courts in respect to enforcing the FOIA’s objec-

tive of disclosure, but all are lower court decisions: e.g.,

Marks v. CIA, 590 F.2d 997 (D.C. Cir. 1978); Open America v.

Watergate Special Prosecution Force, 547 F.2d 605 (D.C.

Cir. 1976); Schwartz v. IRS, 511 F.2d 1303, 1306 (D.C.

Cir. 1975); Tax Analysts and Advisors v. IRS, 362 F.Supp.

1298, 1303 (D.D.C. 1973), modified in part and remanded,

505 F.2d 350 (D.C. Cir. 1974); Theriaul' v. United States,

503 F.2d 390, 392 (9th Cir. 1974), on remand, 395 F. Supp.

637, 641 (C.D. Cal. 1974); Fisher v. Renegotiation Board,

473 F.2nd 109, 112, 114 (D.C. Cir. 1972), on remand, 355

F.Supp. 1171 (D.D.C. 1973).

The Sunshine Act shares with the FOIA and the Equal

Access to Justice Act the unique provision that the agency

involved must shoulder the burden to sustain its action. 5 U.S.C.

§§ 552(a)(4)(B) and 552b(h)(1), 28 U.S.C. § 2412(d). Re-

negotiation Board v. Bannercraft Clothing Co., 415 U.S. 1,

13 (1973); Federal Open Market Committee v. Merrill, 443

U.S. 340, 352 (1979); Hoang Ha v. Schweiker, 541 F. Supp.

711, 713 (N.D. Cal. 1982). The reason for this shift in the

burden of proof is the fact, according to the FOIA’s legislative

history, that the complainant has no way of knowing what the

actual reasons for nondisclosure or noncompliance are. The

defendant agency must, therefore, clearly set forth the grounds

on which it acted. For, if the court is to test an agency’s action

on the basis upon which the action purports to rest, that basis

must be known.

The Sunshine Act’s provision that “[t]he burden is on the

defendant to sustain his action” is, in import and effect,

identical to the provision of the FOIA that “the burden is on the

agency to sustain its action.” The latter language has generally

been construed by the courts to mean that the agency must

show, by sworn testimony or publicly filed affidavit, what

the legal basis of its action is and how its position accords with

the substantive provisions of the FOIA.

The Amtrak directors were, consequently, required by law to

=. os

demonstrate to the trial court, by sworn oral testimony in

open court or by detailed affidavit entered into the record,

that 1) the FOIA does not require them to publish in the Federa/

45 U.S.C. § 564(c)(1)(E) and 44 U.S.C. § 1508, and 2) they

are not now, and were never by the Congress intended to be,

subject to the Sunshine Act. The district court not only dis-

regarded this critical requirement, but even declined to permit

Ehm to offer evidence in support of his contention that the

Amtrak board may not refuse to publish in the Federal Register

the matters at issue in the two suits.

Because the burden is on the Amtrak directors to establish

their right to exempt themselves from compliance with the

Sunshine Act’s and FOIA’s Federa/ Register publication man-

dates, this case should have been remanded to the district court

with the specific instruction that the board be ordered to supply

to the court sufficient information, in the form of a specific and

nonconclusory affidavit. so as to allow the trial court to make

a reasonable determination that the Amtrak directors are

correct. Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d

854. 861 (D.C. Cir. 1980), 54 A.L.R. Fed. 256, 266 (1981). The

Vaughn-affidavit is required to be in substantial com-

pliance with the minimal standards set out Mead Data Central,

Inc. v. U.S. Department of the Air Force, 566 F.2d 242,

251 (1977). As was pointed out in Mead in respect to the

FOIA, these burdens may be avoided at the option of the

Amtrak directors through immediate compliance with the

pertinent provisions of the FOIA and Sunshine Act.

The Amtrak board maintained in a case brought in 198!

under the Privacy Act of 1974, 5 U.S.C. § 552a, that Amtrak

is not subject to that Act because it is in fact a private corpora-

tion, ie., a “person” as defined in 5 U.S.C. § 551(2). They

abandoned this defense in the Sunshine Act suit and argued

instead that subtitle F of Pub. L. No. 97-35, 95 Stat. 689

(Aug. 13, 1981), the Amtrak Improvement Act of 1981, re-

pealed 5 U.S.C. §§ 552(e) and 552b(a)(1), the controlling

definitions of “agency” pursuant to which they had hitherto

considered themselves to be subject to the “open meeting” law.

=”

Because the trial court declined to force them to bear their

burden of proof, by submitting a detailed and specific affidavit

in which they described and justified the legal basis of their

claim, they were able to avoid having to admit that they had

partially compiled with the Sunshine Act for a period of five

years.

The only Sunshine Act case on point appears to be A.G.

Becker Incorporated v. Board of Governors of Federal Reserve

System, 502 F.Supp. 378, 385 (D.D.C. 1980), which held in

respect to the “notice” requirements of 5 U.S.C. § 552b (e)

that the board was required to “submit detailed, specific af-

fidavits describing with sufficient justification the basis for

[their] claim, and not rest on conclusory hypotheses.” The

district court relied on two District of Columbia Circuit

decisions, Ray v. Turner, 587 F.2d 1187 (1978), and Vaughn

v. Rosen, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977

(1974). The Vaughn-court’s reliance upon the affidavit

method is in turn based upon EPA v. Mink, 410 U.S. 73,

93 (1973), an FOIA case in which this Court observed that an

“agency should be given the opportunity, by means of de-

tailed affidavits or oral testimony, to establish to the satis-

faction of the district court that the documents sought fall

clearly beyond the range of material . . . [subject to disclosure].”

The utilization of the affidavit method in Sunshine Act

cases is entirely appropriate because the Act is very closely

modeled on the FOIA. The two statutes are in fact so closely

related as to be in pari materia. Consequently, although the

dearth of Sunshine Act cases makes recourse to FOIA pre-

cedent necessary, such a reliance upon FOIA cases will also

suffice to support Ehm’s contention that a detailed justifi-

cation specifically identifying the Amtrak director’s reasons

in support of their official position that the Act does not apply

to them is a minimal requirement.

A pivotal provision of the FOIA that is often disregarded

by litigants and courts alike is subsection (c), which provides

that the Act “does not authorize withholding of information

or limit the availability of records to the public, except as

specifically stated in [section 552J’ (emphasis added). 5 U.S.C.

§552(c). This provision has consistently been interpreted

by the courts to mean that a district court possesses no au-

thority to permit the withholding of information, materials,

and records required to be disclosed pursuant to paragraphs

(a)(1) to (3) of the Act, unless withholding is expressly author-

ized by the nine narrow exemptions of subsection (b).

The only FOIA case in which this Court took judicial notice

of subsection (c) appears to be EPA v. Mink, 410 U.S. 73,

79 (1973), the Court noting that the nine exemptions created

by the Act “are explicitly made exclusive .. . and are plainly

intended to set up concrete, workable standards for deter-

mining whether particular materials may be withheld or must

be disclosed.” There is, consequently, little doubt that the

trial court erred in permitting Amtrak to evade publication

in the Federal Register of the notices and rules at issue because

a “district court has no equitable jurisdiction to permit the

withholding of information which does not fall within one of

the [FOIA’s] exemptions.” Sears, Roebuck and Co. v. GSA,

384 F.Supp. 996, 1003-1004 (D.D.C.), aff'd, 509 F.2d 527

(D.C. Cir. 1974). Accord, American Civil Liberties Union v.

Brown, 609 F.2d 277, 280 (7th Cir. 1979); Getman v. NLRB,

450 F.2d 670, 672, 679, (D.C. Cir. 1971), 16 A.L.R. Fed. 499

(1973); Soucie v. David, 448 F.2d 1067, 1076 (D.C. Cir. 1971).

By permitting the trial court to disregard the mandate of

the FOIA and the Sunshine Act that the burden is on the

agency to sustain its action and by allowing it to decline to

function as the statutorily designated enforcement arm of

these two disclosure laws, the court of appeals has rendered a

decision in conflict with a number of decisions of other federal

courts of appeals on the same matter, has so far sanctioned a

departure by a lower court from the accepted and usual course

of judicial proceedings as to call for an exercise of this Court’s

power of supervision, and has, furthermore, decided an

important question of federal law which has not been, but

should be, settled by this Court.

—

II.

Certiorari Should Be Granted Because the Lower Court’s

Finding that Amtrak is not Required to Comply with the

FOIA’s Federal Register Publication Mandates Contradicts

Fourteen Decisions of Other Federal Courts of Appeals and

One Applicable Decision of this Court

The FOIA’s five Federal Register publication mandates,

5 U.S.C. § 552(a)(1)(A)-(E), are not, as Amtrak claims,

provisions that were first enacted in 1966 as part of the Act,

but were in fact enacted in 1946 in substantially identical

form as part of section 3, the “public information” section, of

the Administrative Procedure Act. Professor K. Davis

observed recently that agencies’ departures from the congres-

sional intent embodied in the FOIA’s (a)(1) disclosure man-

dates are widespread and that judicial insistance upon com-

pliance could substantially raise the quality of administrative

justice. | Administrative Law Treatise § 5.10 (Supp. 1982).

The validity of this observation is supported in part by the

fact that only three of the ten “mixed-ownership Govern-

ment corporations” so designated in 31 U.S.C. 9101, the

current Government Corporation Control law, have published

the implementing rules mandated by the Freedom of Informa-

tion, Privacy, and’ Government in the Sunshine Acts. Some of

these government corporations were already in existence in

1946; Amtrak commenced operations on May 1, 1971.

In support of his contention that Amtrak must comply

with all of the FOIA’s “publication” mandates, Ehm cited

all the authorities that he was able to find, including thirteen

reported trial court decisions, eleven decisions rendered by

the District of Columbia Circuit, fourteen rendered by other

circuits, and one by this Court. Both the trial and appellate

court simply disregarded these case authorities, which action—

the petitioner respectfully suggests-—constitutes an im-

provident exercise of judicial discretion and soundly defeats

the congressional purposes of the Freedom of Information

Act.

This Court noted in at least four cases that the FOIA

requires agencies to currently publish in the Federal Register

the five classes of “information” broadly described by sub-

sections 552(a)(1)(A) through (E): Federal Open Market

Committee v. Merrill, 443 U.S. 340, 352 (1979); NLRB vy.

Sears, Roebuck &Co., 421 U.S. 132, 136 (1975); Renegotia-

tion Board v. Bannercraft Clothing Co., 415 U.S. 1, 12 (1973);

Morton v. Ruiz, 415 U.S. 199, 232-233, 235-236 (1974). Morton

—the authority primarily relied upon by Ehm in seeking a

writ —pertains mainly to the publication of “substantive” or

“legislative-type” rules as prescribed by subsection 552(a)(1)

(D), the court holding in effect that such rules must indeed be

published in the Federal Register.

The rules expressly mandated by subsec. (g) of the Sunshine

Act to be published in the Federal Register—“regulations to

implement the requirements of subsections (b) through (f)” of

the Act—are unquestionably “substantive rules” of the type

described by subsection (a)(1)(D) of the FOIA, and must,

for this reason, be so published. It should be noted, however,

that the traditional differentiation between so-called pro-

cedural, substantive, and interpretative rules was set aside

by the Court in 1968 in favor of the much more reliable and

practical “substantial impact” standard. See Nat'l Motor

Freight Traffic Association v, United States, 268 F.Supp. 90,

93, 95-97, (D.D.C. 1967) (3-judge court), affd mem. per

curiam, 393 U.S. 18 (1968). All of the rules and notices at

issue in this litigation are clearly matters that substantially

impact the public or certain classes of the public.

The notices required by 45 U.S.C. § 564(c)(1)(E) to be

published in accordance with the procedures set out in 5 U.S.C.

§ 553—notices of “opportunity to be heard” also required

by 44 U.S.C. § 1508 to be so published—are undeniably

matters that have “a ponderable impact upon interests of

substance” of the persons that would be directly affected by

a change in rail passenger service, and must, therefore, be

published in the Federal Register pursuant to the provisions

of subsection (a)(1)(D) of the FOIA.

The situation is no different in respect to the “meeting

= ae

notices” required to be published inthe Federal Register by

subsection (e)(3) of the Sunshine Act. These, too, are obviously

notices that substantially impact a particular class of persons,

if not the public as a whole, and constitute, moreover, matters

specifically required to be so published by subsection (a)(1)

of the FOIA. The interests of the substantially affected

persons need not be of a specific kind; an interested party’s

desire to simply observe a formal meeting of the Amtrak board

may suffice because the Act grants the right of access to the

proceedings of a “collegial body” to any person. 5 U.S.C.

§ 552b(b), (g), and (h). But how can an individual attend,

if an agency such as Amtrak refuses to give formal notice of the

time and place of the meetings of its managing board of

directors?

The court of appeals inexplicably affirmed the trial court's

dismissal of the suit on the ground that Ehm’s “[FOIA] request

did not seek the release of information, [but] appears in

reality to have been an attempt to compel Amtrak to engage

in informal Administrative Procedure Act rulemaking.”

Appendix A, infra, at p. A-l. As lower courts have correctly

pointed out, and as this Court has hinted at in Chrysler Corp.

v. Brown, 441, U.S. 281 (1979), and NLRB v. Wyman-Gordon

Co. 394 U.S. 759 (1979), an FOIA request for category (a)(1)

information—the five types of matters required to be published

in the Federal Register by section (a)(1) of the Act—must of

necessity be combined with a petition for rule-making under

5 U.S.C. § 553(e), and vice versa. An example of an exception

to this rule might be a request that the agency publish the

“descriptions of its central and field organization,” as required

by subsection 552(a)(1)(A)—information, which Amtrak,

incidentally, has also declined to publish until now. The nature

of such “information” is necessarily dictated by the pertinent

agency’s actual structure, and constitutes, moreover, an

“order” as defined in 5 U.S.C. § 551(6), alleviating, thereby,

the need for a petition for rule-making.

The same is true of the Sunshine Act “meeting notices”

required by subsection 552b(e)(3) and the notices of oppor-

tunity to be heard mandated by 45 U.S.C. § 564 (c)(1)(E).

But it is not true of the procedural and substantive rules expres-

ly mandated by subsection (g) of the Sunshine Act and sub-

section 564(c)(1)(E) of the RPSA, although it can be said

that a petition for rule-making should not become necessary

in these two instances because the promulgation of these

rules is already mandated by an act of Congress. In short, there

should be no occasion for a citizen to petition an agency for

the promulgation of rules that are required to be issued by the

express language of a statute. i

The appellate court’s affirmation of the trial court’s dismis- \

sal of Ehm’s FOIA suit on the ground that his original request

to the agency did not constitute a valid FOIA request, but

rather a petition for rule-making, constitutes not only a mis-

apprehension of the law, but also contradicts the same court’s

previous finding that compliance with 5 U.S.C. § 552(a)(1)

(D) implies compliance with 5 U.S.C. § 553(b), and vice versa.

Cabais v. Egger, 527 F. Supp. 498, 504 n, 13 (D.D.C. 1981).

In summary then, because the court of appeals for the

District of Columbia Circuit has rendered a decision in con-

flict with at least fourteen decisons of other federal courts of

appeals, has decided a federal question in a way in conflict

with an applicable decision of this Court, and has so far sanc-

tioned a departure by a trial court from the usual course of

judicial procedure as to call for an exercise of the Court’s

power of supervision, the petition for writ of certiorari should

be granted.

Ill.

Certiorari Should Be Granted to Uphold this Court’s

Well-Settled Rule that Repeals by Implication

Are not Favored

]

In 1981 the Congress altered the size and nature of Amtrak’s |

board by reducing the number of directors actually ap-

pointed by the President, with the advice and consent of the

Senate, from eight to three, but at the same time authorized

the Secretary of Transportation to appoint two members to

EE en, LT Te

the board. The peculiar result of this new arrangement is that,

even though Amtrak is de jure a stock company, to wit a

“mixed-ownership Government corporation” organized

under the District of Columbia Business Corporation Act, 1)

the four private part-owners of Amtrak are no longer re-

presented on the governing board, 2) the United States,

the owners of 95.7 percent of Amtrak’s capital stock, are

represented by the two Department of Transporation ap-

pointees only, and 3) the other seven Amtrak directors do not

represent any stockholders directly and possess, consequently,

no authority to vote any shares.

The legislative history of section 1174 (a) of Pub. L. No.

97-35, 95 Stat. 689 (Aug. 13, 1981), contains nothing that

would suggest even remotely that its authors were in any way

aware that their action would directly affect the applicability

provision of the Government in the Sunshine Act or that the

Amtrak directors would promptly utilize newly revised 45

U.S.C. 543(a) as their legal authority to discontinue com-

pliance with the federal “open meeting” law, It is, further-

more, established that Amtrak’s two congressional oversight

committees, the respective Commerce Committees, possess

no lawmaking and oversight authority whatsoever over

such “across-the-board” statutes as the Sunshine Act or the

APA, both of which lie exclusively within the legislative prov-

ince of other committees.

The cardinal rules of statutory construction, that “repeals by

implication are not favored” and that “the intention of the

legislature to repeal a prior law must be clear and manifest,”

can be traced in the decisions of this Court as far as Wood v.

United States, 41 U.S. [16 Pet.] 342, 363 (1842), in which the

Court held that a previous law remains in force unless a

“positive repugnancy” exists between the new law and the

old. The Court upheld this doctrine in at least fourteen sub-

sequent cases, two relatively recent ones being Administrator,

FAA v. Robertson, 422 U.S. 255, 266 (1974), and Regional

Rail Reorganization Act Cases, 419 U.S. 102, 133-134 (1974),

in both of which the Court quoted Morton v. Mancari, 417

U.S. 535, 551 (1974), to the effect that “[w]Jhen two statutes

are capable of co-existence, it is the duty of the courts, absent

9} —

a clearly expressed congressional intention to the contrary,

to regard each as effective.”

As can easily be shown, nothing whatsoever in the actual

language of current subsection 543 (a) of title 45 indicates

affirmatively any congressional intent to exempt Amtrak

from the applicability of the Sunshine Act in general and the

two pertinent definitions of the term “agency” in particular.

Because Amtrak cannot affirmatively show congressional

intention to repeal 5 U.S.C. § 552(e) and §552b(a)(1), and

because 45 U.S.C. § 543(a) and the Sunshine Act are in no

respect irreconcilable, this Court should adhere to its tradi-

tional holding, enunciated in United States v. Borden Co.,

308 U.S. 188, 198 (1939), that “[w]hen there are two acts

upon the same subject, the rule is to give effect to both, if

possible.” There is, in short, no reason whatsoever for the

Court to depart from the long-established and entirely

logical rule that direct language is a/ways required to invalidate

an existing Statutory provision.

Because the lower court has decided a federal question in a

way that is in conflict with no less than fifteen applicable

decisions of this Court and has so far sanctioned a departure

by a trial court from the accepted and usual course of judicial

proceedings as to call for an exercise of this Court's super-

visory powers, the application for a writ of certiorari should

be granted.

IV.

Certiorari Should Be Granted to Prevent

the Setting of a Deleterious Precedent in Respect

to the Force and Effect of 31 U.S.C. § 3526

The practice of bestowing upon decisions of the Comptroller

General the force and effect of law has been in effect for

almost 100 years, the oldest pronouncement on the subject

being a 1895 ruling by the Attorney General. 21 Op. Att'y

Gen. 178. The question whether or not an executive agency

may lawfully disregard 31 U.S.C. § 3526(d), which provides

for the conclusiveness and finality of Comptroller General’s

decisions on the executive branch of the federal government,

has apparently not come before this Court directly, but was

dealt with in passing in at least four cases: Real Estate Savings

Bank of Pittsburgh v. United States, 16 Ct. Cl. 335, 352 (1880),

aff'd, 104 U.S. 728, 733 (1881); Miguel v. McCarl, 291 U.S.

442, 445-456 (1934); Pettit v. United States, 203 Ct. Cl. 207,

448 F.2d 1026, 1031 (1973), disapproved on other grounds sub

nom. United States v. Testan, 424 U.S. 392 (1975), motion

denied, 425 U.S. 957 (1976); Greene County Planning Board

v. FPC, 559 F.2d 1227, 1234 (2nd Cir.), cert. denied, 434 U.S.

1086 (1976).

Whereas the courts possess full authority to revise a decision

of the Comptroller General that is clearly contrary to law,

Miguel, supra, 291 U.S. at 456, and Greene, supra, 559 F.2d

at 1234, they possess no authority to disregard congressional

will as reflected in the plain language of a statute. By dis-

regarding the Comptroller General’s finding, in decision

B-114829, that Amtrak is an “agency” for the purposes of

the Sunshine Act and that the Act’s legislative history clearly

indicates congressional intent to include Amtrak, the tria! court

contravened the express mandate of 31 U.S.C § 3526(d) that

all decisions of the Comptroller General be binding and con-

clusive on the executive branch of the government. The

court cannot do so, however, because it is always the duty

of the courts “[to] obey the mandate of the law.” The Antelope,

23 U.S. [10 Wheat.] 67, 114 (1825).

“There is no court that has power to defeat the intent of

the legislature, when couched in such evident and express

words, as leave no doubt whether it was the intent of the

legislature, or no,” held this Court in Calder v. Bull, 3 U.S.

{3 Dall.] 386, 399 (1798), citing Blackstone verbatim, and in

Maxwell v. Moore, 63 U.S. [22 How.] 185, 191 (1859), the

Court admonished that “where the legislature makes a plain

provision, without making any exception, the courts of justice

can make none, as it would be legislating to do so.” The trial

court violated this imperative when it reached a finding

directly opposite to that of the Comptroller General and

disregarded the plainly expressed intent of Congress that all

decisions of the Comptroller General be “binding and con-

clusive.” 21 Op. Att’y Gen. 188 (1895).

The “evident and express words” of 31 U.S.C. § 3526 and

its predecessors, 31 U.S.C. §§ 44 and 74, are that all decisions

of the Comptroller General shall be “conclusive on the executive

geal By exempting the Amtrak board of directors from

e operation of this express statutory provision, the court in

effect contravened the intent of Congress and violated the

cardinal rule of statutory construction that, where the will

or intention of the lawmaking power is declared in plain and

unequivocal terms, such will or intent must be absolutely

followed. Binns v. Lawrence, 53 U.S. [12 How.] 9, 17 (1851).

Mandamus has traditionally issued in response to abuses

of judicial power. Thus, where a district judge refuses to take

some action that he is required to take or takes some action

that he is not empowered to take, mandamus will lie. Bankers

Life & Casualty Co. v. Holland, Chief Judge, 346 U.S. 379, 382

(1953); Roche v. Evaporated Milk Ass'n, 319 U.S 21, 26

(1942). Because Congress imposed upon the trial court the duty

to uphold the conclusiveness of Comptroller General's decisions

and the rights of the public depend on the performance of that

judicial act, it would have been appropriate for the lower court

to use the writ in aid of its appellate jurisdiction. The lower

court’s erroneous decision is, however, reviewable by this Court

by writ of certiorari, for which reason the petitioner abstained

from resorting to that remedy.

If this Court were to allow the court of appeals to sustain

the district court’s disregard of the express mandate of 31 U.S.C

§ 3526(d), it would permit the setting of a dangerous precedent

that could possibly hinder the work of the Government Ac-

counting Office. The GAO was duly made aware of the fact that

the district court had in effect declared section 3526(d) in-

operative in respect to Amtrak, but apparently was not alarmed

and took no corrective action, although it must be admitted

that this decision is entirely within the Comptroller General’s

discretion. Nevertheless, the trial court’s action sets a dangerous

and deleterious precedent that should not be allowed to stand.

In summary, because the court of appeals, by approving

an action by a district court that is not consonant to right

24.

and justice, has so far sanctioned a departure by a lower court

from the accepted and usual course of judicial proceedings

as to call for an exercise of this Court’s power of supervision,

the petition for a writ of certiorari should be granted.

CONCLUSION

Wherefore, the petitioner respectfully prays that a writ of

certiorari be granted.

Alfred E. Ehm, pro se

170 Carousel Drive

San Antonio, Texas 78227

512/673-8982

AFFIDAVIT OF SERVICE BY MAIL

STATE OF TEXAS )

COUNTY OF BEXAR _)

I, Alfred E. Ehm, depose and say that I am the petitioner

herein and that, pursuant to Rule 28.5(c) of the Rules of the

Supreme Court, I served three copies of the foregoing petition

on each of the parties required to be served herein, by mailing

such copies, postage prepaid to the individual shown at his

office address, on August 4, 1984:

(1) National Railroad Passenger Christopher M. Kline

Corporation, Deputy General Counsel

the Respondent, and Counsel of Record

400 N. Capitol Street

Washington, DC 20001

(2) The Solicitor General same

U.S. Department of Justice

Washington, DC 20530

All parties required to be served have been served.

/s/ Alfred E. Ehm

Alfred E. Ehm

Sworn to and subscribed before me on July 23, 1984.

/s/ Linda Murray

Linda Murray, Notary Public

State of Texas

[seal]

My commission expires on March 19, 1985.

APPENDIX

Nos. 83-1752 & 83-1852

MEMORANDUM

These are appeals from two separate orders of the District

Court. In No. 82-1752, Alfred Ehm appeals from the dismissal

of a Freedom of Information Act (“FOIA”) lawsuit brought

against the National Railroad Passenger Corporation (“Amtrak”).

In No. &3 !8%7, Ehm appeals from the District Court’s order

dismissing a *.; arate Sunshine Act lawsuit against Amtrak. We

conclude that neither appeal is meritorious and therefore affirm

both judgments.

The District Court dismissed appellant's FOIA lawsuit on the

ground that appellant had failed to exhaust his administrative

remedies. We need not decide the correctness of this holding;

instead, we rest our affirmance upon an even more fundamental

defect infecting appellant's lawsuit. Appellant’s purported

FOIA request appears in reality to have been an attempt to compel

Amtrak to engage in informal Administrative Procedure Act

rulemaking concerning the establishment of an _ auto-ferry

service between Virginia and Florida. Because his request did not

seek the release of information, appellant cannot now be heard to

maintain that Amtrak improperly withheld agency records. His

complaint would properly have been dismissed on this threshold

basis. See Kissinger v. Reporters Committee for Freedom of

the Press, 445 U.S. 136, 150 (“federal jurisdiction [under FOIA]

is dependent upon a showing that an agency has (1) ‘improperly’;

(2) ‘withheld’; (3) ‘agency records’ ”).

The appeal in No. 83-1852 must also fail. Appellant’s claim

in this case was brought under the Sunshine Act, which by its

terms applies only to government agencies “headed by a collegial

body composed of two or more individual members, a majority of

whom are appointed to such positions by the President with the

advice and consent of the Senate... .” 5 U.S.C. § 552b(a)(1):

see Symons v. Chrysler Corp. Loan Guarantee Board, 670 F.2d

238, 240 (D.C. Cir. 1981). The board of directors governing

Amtrak is composed of nine members, only three of whom are

appointed to their board positions by the President with the

advice and consent of the Senate. See 45 U.S.C. § 543(a)(1).

Thus, Amtrak is not subject to the Sunshine Act.

A-l Appendix A

Nos. 83-1752 & 83-1852

The only issue left to be resolved is whether appellant should

be penalized for bringing these frivolous appeals.. See Fed. R.

App. P. 38. While recognizing that appellant was not represented

by counsel, we note that other courts have in appropriate cases

penalized pro se litigants for bringing frivolous appeals. See,

e.g., Parker v. Commissioner of Internal Revenue, 724 F.2d 469,

472 (Sth Cir. 1984); Collins v. Amoco Production Co., 706 F.2d

1114, 1115 (11th Cir. 1983); Ruderer v. Fines, 614 F.2d 1128(7th

Cir. 1980). We agree with the Seventh Circuit that imposition

of penalties against a pro se litigant will generally be appropriate

if the appeal was frivolous and if it was brought in bad faith. See

Ruderer, 614 F.2d at 1132. There is no question that these

appeals were frivolous. Furthermore, there is at leasi some

indication that these appeals are part of a series of harassing

lawsuits brought by appellant against Amtrak. See Brief for

Appellee in No. 83-1852, at 5 (appellant presently haus at least

four other federal court lawsuits pending against Amtrak). We

are hesitant to make a finding of bad faith, however, on this

record. While we therefore decline to penalize appellant for

bringing the present appezis, we sound a cautionary note that

frivolous appeals will not go unsanctioned in the future.

The District Court’s orders are affirmed, and ordinary costs are

awarded to Amtrak. See Fed. R. App. P. 39(a); D.C. Cir. Rule

15.

[Filed March 23, 1984]

Appendix A A-2

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ALFRED E. EHM,

Plaintiff,

Civil Action No. 83-0969

NATIONAL RAILROAD

PASSENGER CORPORATION

Defendant.

ORDER

Upon consideration of defendant’s motion to dismiss, plain-

tiffs opposition, the memoranda submitted by the parties, oral

arguments by defendant's counsel, plaintiff having decided not to

appear, and the entire period, it is by the Court this 6th day of

June, 1983

ORDERED that defendant’s motion to dismiss is granted due

to plaintiffs failure to exhaust his administrative remedies.

s John Lewis Smith, Jr.

United States District Judge

{Filed June 7, 1983]

Appendix A

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ALFRED E. EHM,

Plaintiff,

V. Civil Action No. 83-1316

NATIONAL RAILROAD

PASSENGER CORPORATION,

Defendant.

ORDER

Upon consideration of defendant’s motion to dismiss, plain-

tiffs opposition, and the entire record, the Court finds that

defendant is not subject to the provisions of the Sunshine Act, 5

U.S.C. section 552b. Accordingly, it is by the Court this 25th day

of July, 1983

ORDERED that defendant’s motion to dismiss is granted and

this action is dismissed with prejudice.

/s/ John Lewis Smith, Jr.

United States District Judge

[Filed July 25, 1983]

Appendix A A-4

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 83-1752 September Term, 1983

Alfred E. Ehm, Civil Action No. 83-00969

Appellant

National Railroad Passenger Corporation

No. 83-1852

Alfred E. Ehm, Civil Action No. &3-01316

Appellant

National Railroad Passenger Corporation

Before: Wright, Bork and Starr, Circuit Judges

JUDGMENT

These appeals from two separate orders of the United States

District Court for the District of Columbia were briefed by both

parties. We have accorded full consideration to the issues

presented; they occasion no need for an opinion. See D.C.

Cir. Rules I1(d), 13(c). For the reasons stated in the ac-

companying memorandum, it ts

ORDERED and ADJUDGED that the judgments from which

these appeals have been taken are affirmed. It is

A-5 Appendix A

FURTHER ORDERED by this Court, on its own motion, that

the Clerk shall withhold issuance of the mandate herein until seven

days after the disposition of any timely petition for rehearing. See

D.C. Cir. Rule 14, as amended on November 30, 1981, and June 15,

1982.

Per Curiam

For The Court

s George A. Fisher

Clerk

[Filed March 23, 1984}

Appendix A A-6

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 83-1752 September Term, 1983

Alfred E. Ehm, Appellant Civil Action Number 83-00969

National Railroad Passenger Corporation

And Consolidated Case No. 83-1852

BEFORE: Wright, Bork and Starr, Circuit Judges

ORDER

On consideration of the Petition for Rehearing of Appellant,

filed March 23, 1984, it is

ORDERED that the aforesaid Petition for Rehearing is

denied.

Per Curiam

For the Court:

GEORGE A. FISHER, Clerk

BY:

/s/ Robert A. Bonner

Chief Deputy Clerk

[Filed May 9, 1984]

A-7 Appendix A

Freedom of Information Act (FOIA), 5 USC § 552

§ 552. Public information; ag-ncy rules, opinions, orders,

records, and proceedings

(a) Each agency shall make available to the public information as

follows:

(1) Each agency shall separately state and currently publish

in the Federal Register for the guidance of the public

(A) descriptions of its central and field organization

and the established places at which, the employees (and

in the case of a uniformed service, the members) from

whom, and the methods whereby, the public may obtain

information, make submittals or requests, or obtain

decisions;

(B) statements of the general course and method by

which its functions are channeled and determined,

including the nature and requirements of all formal and

informal procedures available,

able or the places at which forms may be obtained, and

instructions as to the scope and contents of all papers,

reports, or examinations;

(D) substantive rules of general applicability adopted

as authorized by law, and statements of general policy

or interpretations of general applicability formulated

and adopted by the agency; and

(E) each amendment, revision, or repeal of the

foregoing.

Except to the extent that a person has actual and timely notice

of the terms thereof, a person may not in any manner be required to

resort to, or be adversely affected by, a matter required to be

published in the Federal Register and not so published. For the

purpose of this paragraph, matter reasonably available to the class

of persons affected thereby is deemed published in the Federal

of the Director of the Federal Register.

Appendix B A-8

(ce) For purposes of this section, the term “agency” as defined

in section 551 (1) of this title includes any executive department,

military department, Government corporation, Government

controlled corporation, or other establishment in the executive

branch of the Government (including the Executive Office of

the President), or any independent regulatory agency.

Government in the Sunshine Act, 5 U.S.C. § 552b

§ 552b. Open meetings

(a) For purposes of this section—

(1) the term “agency” means any agency, as defined in

section 552(e) of this title, headed by a collegial body

composed of two or more individual members, a majority

of whom are appointed to such position by the President

with the advice and consent of the Senate, and any

subdivision thereof authorized to act on behalf of the agercy;

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(¢)

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(3) Immediately following each public announcement

required by this subsection, notice of the time, place, and

subject matter of a meeting, whether the meeting is open or

closed, any change in one of the preceding, and the name and

phone number of the official designated by the agency to

respond to requests for information about the meeting, shall

also be submitted for publication in the Federal Register.

* * * * *

(g) Each agency subject to the requirements of this section shall,

within 180 days after the date of enactment of this section, fol-

lowing consultation with the Office of the Chairman of the

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Administrative Conference of the United States and published

notice in the Federal Register of at least thirty days and oppor-

tunity for written comment by any person, promulgate regula-

tions to implement the requirements of subsections (b) through (f)

of this section. Any person may bring a proceeding in the United

States District Court for the District of Columbia to require

an agency to promulgate such regulations if such agency has not

promulgated such regulations within the time period specified

herein. Subject to any limitations of time provided by law, any

person may bring a proceeding in the United States Court of

Appeals for the District of Columbia to set aside agency

regulations issued pursuant to this subsection that are not in accord

with the requirements of subsections (b) through (f) of this

section and to require the promulgation of regulations that are

in accord with such subsections.

Federal Register Act, 44 U.S.C. § 1501 et seq.

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§ 1505. Documents to be published in Federal Register

(a) Proclamations and Executive Orders; documents having

general applicability and legal effect: documents required to be

published by Congress. There shall be published in the Federal

(1) Presidential proclamations and Executive orders,

except those not having general applicability and legal

effect or effective only against Federal agencies or persons in

their capacity as officers, agents, or employees thereof;

(2) documents or classes of documents that the President

may determine from time to time have general applicability

and legal effect; and

(3) documents or classes of documents that may be

required so to be published by Act of Congress.

For the purposes of this chapter every document or order which

prescribes a penalty has general applicability and legal effect.

Appendix B A-10

(b) Documents authorized to be published by regulations;

comments and news items excluded. In addition to the foregoing

there shall also be published in the Federal Register other

documents or classes of documents authorized to be published by

regulations prescribed under this chapter with the approval of the

President, but comments or news items of any character may not

be published in the Federal Register.

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§ 1508. Publication in Federal Register as notice of hearing

A notice of hearing or of opportunity to be heard, required or

authorized to be given by an Act of Congress, or which may

otherwise properly be given, shall be deemed to have been given

to all persons residing within the States of the Union and the

District of Columbia, except in cases where notice by publication

is insufficient in law, when the notice is published in the Federal

and the date fixed in the notice for the hearing or for the

termination of the opportunity to be heard is —

(1) not less than the time specifically prescribed for the

publication of the notice by the appropriate Act of

Congress; or

(2) not less than fifteen days when time for publication

is not specifically prescribed by the Act, without prejudice,

however, to the effectiveness of a notice of less than fifteen

days where the shorter period is reasonable.

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§ 1510. Code of Federal Regulations

(a) The Administrative Committee of the Federal Register,

with the approval of the President, may require, from time to

time as it considers necessary, the preparation and publica-

tion in special or supplemental editions of the Federal Register of

complete codifications of the documents of each agency of the

Government having general applicability and legal effect, issued

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or promulgated by the agency by publication in the Federal

relied upon by the agency as authority for, or are invoked

or used by it in the discharge of, its activities or functions, and are

in effect as to facts arising on or after dates specified by the

Administrative Committee.

(e) The codified documents of the several agencies published in

the supplemental edition of the Federal Register under this

section, as amended by documents subsequently filed with the

Office and published in the daily issues of the Federal Register.

shall be prima facie evidence of the text of the documents and of

the fact that they are in effect on and after the date of publication.

Rail Passenger Service Act (RPSA), 45 U.S.C. § 501 et seq.

§ 564. Service changes

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(cl) . . . [The criteria and procedures under which the

Corporation would be authorized to add or discontinue routes

and services] shall include, but need not be limited to

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(E) methods for giving public notice of, and obtaining public

comments on, any such addition or discontinuance;

31 U.S.C. § 3526

§ 3526. Settlement of accounts

(a) The Comptroller General shall settle all accounts of the

Appendix B A-12

United States Government and supervise the recovery of all debts

finally certified by the Comptroller General as due the

Government.

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(d) On settling an account of the Government, the balance

certified by the Comptroller General is conclusive on the execu-

tive branch of the Government. On the initiative of the

Comptroller General or on request of an individual whose ac-

counts are settled or the head of the agency to which the account

relates, the Comptroller General may change the account within

a year after settlement. The decision of the Comptroller General

to change the account is conclusive on the executive branch.

Comptroller General Decision B-114829

57 Comp. Gen. 773 (1978)

National Railroad Passenger Corporation— Applicability of

Freedom of Information, Privacy and Sunshine Acts

The National Railroad Passenger Corporation (Amtrak) is an

“agency” for purposes of the Freedom of Information. Privacy.

and Sunshine Acts, notwithstanding the statement in 45 U.S.C.

541 that Amtrak was not “to be an agency or establishment of the

Government of the United States” since it is (1) headed by a

collegial body— board of directors the majority of whom are

appointed by the President with the advice and consent of the

Senate, and (2) a Government-controlled corporation as that

term is used in 5 U.S.C. 552(e). Furthermore, legislative history

of Freedom of Information and Sunshine Acts indicates con-

gressional intent to include Amtrak.

Federal Register —Publication—Required

Government Printing Office is required by 44 U.S.C. 1504 (a)(3)

to publish information in Federal Register that Amtrak is

required to publish under Freedom of Information, Privacy. and

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Sunshine Acts. Furthermore, Amtrak may be billed for such

publication in accordance with 44 U.S.C. 1509, as amended by

Pub. L. No. 95-94, since Amtrak is an “agency” within the

context of that provision.

Appendix B A-14

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.