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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1984
- **Citation:** 469 U.S. 859

## Text

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

AUG 6 1984

ALEAANDER l- STEVAS,
NO CLERK

a

IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1984

Alfred E. Ehm, P<titioner
v.

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
v.

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)

i

16

23

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)

a4

16

16

13

13

22

15

21

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
Register notices in question pertain to service additions and
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
Register a notice containing the pertinent facts of the project
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
Register and the Code of Federal Regulations. Amtrak
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
Register. The court denied Ehm’s motion on Feb. 17, 1983,

10

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
5

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/
Register the notices of opportunity to be heard mandated by
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

oe

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.

a.

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-

i.

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

a,

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.

a

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
v.

National Railroad Passenger Corporation

No. 83-1852

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

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
v.

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,

(C) rules of procedure, descriptions of forms avail-
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
Register when incorporated by reference therein with the approval
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;

* * * * *

(¢)
* * * * *

(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

A-9 Appendix B

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.

* * * * *

§ 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
Register
(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.

* * * * *

§ 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
Register at such a time that the period between the publication
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.

* * * * *

§ 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

A-ll Appendix B

or promulgated by the agency by publication in the Federal
Register or by filing with the Administrative Committee, and are
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

* * * * *
(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

* * * * *
(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.

* * * * *

(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

A-13 Appendix B

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2589%3A1. Public record. Not legal advice.