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07/24/79 Committee For Auto v. Jay Solomon

July 24, 1979

COMMITTEE FOR AUTO RESPONSIBILITY ET AL ., APPELLANTS

v.

JAY SOLOMON, ET AL ., APPELLEES 1979.CDC.133 DATE DECIDED: JULY 24, 1979



Before ROBINSON and WILKEY, Circuit Judges, and FLANNERY,* United States District Judge for the United States District Court for the District of Columbia.

UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT

Rehearing Denied August 22, 1979.

Appeal from the United States District Court for the District of Columbia (D.C.Civil Action No. 76-2084).

APPELLATE PANEL:

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WILKEY; PER CURIAM

This litigation embodies a challenge to the leasing by the General Services Administration of the Great Plaza area of the Federal Triangle in Washington, D.C., for use as a parking facility for employees of federal agencies. *fn1 Two grounds of attack are advanced. One is that the National Environmental Policy Act of 1969 *fn2 requires an environmental impact statement prior to leasing. The other is that GSA is violating the Public Buildings Amendments of 19723 by charging the employee only a portion of the commercial parking rate and assessing the difference to the employee's agency.

Appellants are the Committee for Auto Responsibility and the Metropolitan Washington Coalition for Clean Air,4 two organizations whose purposes include improvement of the quality of the environment, together with three individuals who live and attend school in the District of Columbia. The Great Plaza area is owned by the Federal Government, and since the 1930's has been leased to parking management firms for periods of approximately four years.5 It is now leased to Parking Management, Inc., a private corporation, for a four-year term that began on May 15, 1976.6 Under the current lease, nearly three-fourths of the parking spaces are reserved during business hours for the use of permit-holding federal employees. Since 1972, permits have been assigned only to employees who carpool.7

The District Court denied appellants' request for declaratory and injunctive relief and dismissed their action.8 They now assert that procedural and substantive errors infected the proceedings before that court. GSA opposes their arguments and insists further that appellants lack standing. Perceiving no reversible error, we affirm. I. STANDING

To possess standing to attack GSA's failure to prepare an EIS, appellants must show that they have been "adversely affected" or "aggrieved" within the meaning of Section 10 of the Administrative Procedure Act .9 That section confers standing only upon those to whom the challenged agency conduct has caused actual injury to an interest within the zone of interests protected by the statute allegedly violated.10 Section 10 calls additionally upon a party to allege an "injury that fairly can be traced to the challenged action of the defendant, and not injury that results from an independent action of some third party not before the court."11

We think appellants have satisfied standing requirements to charge violations of NEPA but not of the Public Buildings Amendments of 1972.12 Appellants claim that they or their members13 live in or near the District of Columbia and regularly travel to educational, cultural and recreational facilities within the immediate vicinity of the Great Plaza. They assertedly are affected by noise, air pollution and congestion from vehicles utilizing the Great Plaza parking lot.14 Harm to health and conservational interests of parties seeking judicial review is enough to meet the injury-in-fact test for standing,15 and interests of those sorts are clearly within the zone of protection afforded by NEPA.16

Appellants have shown, moreover, that their injury can be traced to GSA's failure to prepare an EIS.17 Their complaint avers that had GSA done so, it would have had to assess the adverse environmental effects of leasing the Great Plaza area under an arrangement offering parking spaces to federal employees for fees less than commercial rates.18 In its EIS, GSA would also have had to consider alternatives to the leasing agreement,19 such as charging permit holders a commercial rate for parking, offering subsidies to those who use mass transit, or restricting the area to non-parking uses.20 Such an approach, according to appellants' complaint, would have ensured that the use of the Great Plaza does not contribute unnecessarily to noise and air pollution in the surrounding area. These allegations are sufficient to confer standing upon appellants to challenge GSA's omission of an EIS.

To litigate their remaining claim, it was incumbent upon appellants to show that they have been "adversely affected" by GSA's alleged violations of the Public Buildings Amendments of 1972. While appellants have urged that their health and conservational values are similarly diminished by GSA's failure to exact commercial parking rates from federal employees,21 it seems clear that these asserted losses fall well outside the zone safeguarded by the Amendments.22 The purpose of the Amendments is to provide the Government with an economical and efficient system for the procurement, utilization and disposal of property.23 Health and conservational concerns, which indubitably underlie NEPA, are not among those that Congress arguably sought to accommodate by enactment of the Public Buildings Amendments of 1972. We hold that appellants do not have standing to challenge the asserted infringement of the Amendments.24 II. THE DISTRICT COURT'S PROCEDURES

Appellants charge the District Court with procedural error, stating that it did not treat GSA's motion to dismiss as a motion for summary judgment. They argue that whenever a federal trial court considers matters outside the pleadings in ruling on a motion to dismiss, the motion must be treated as one for summary judgment.25 Appellants also point to GSA's failure to file its motion to dismiss at least ten days prior to what it says was a hearing thereon.26

We have no quarrel with appellants' view of adjective law. But, contrary to appellants' position,27 the session held by the District Court was devoted to appellants' motion for a preliminary injunction and the merits of its case for a permanent injunction,28 matters previously consolidated for hearing.29 The court thus did not deal with GSA's motion to dismiss, but rather examined the relief appellants ...


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