Petition — Abell v. United States

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No. @5-}432

LEROY W. ABELL AND JACK R. BARGER, er al,

Petitioners

THE UNITED STATES,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF CLAIMS

Of Counsel: ROBERT A. SALTZSTEIN

WILLIAM L. FALLON

PAUL G. OLSEN 1300 Wyatt Building

Suite 410, Petroleum Building Washington, D.C. 20005

Billings, Montata 59101 . ad

Attorneys for Petitioners

Washington, 0.C. e CLB PUBLISHERS’ e LAW PRINTING CO. @ (202) 393.0625

(i)

TABLE OF CONTENTS

Page

RE SR ee re ee re re re ]

EEE ES ee eee eee ere 2

QUESTIONS PRESENTED FOR REVIEW ............. 2

STATUTES AND REGULATIONS INVOLVED ......... 3

Dee I CUP GEES occ cbc ceccduceucesuss 12

REASONS FOR GRANTING CERT ................. 14

ARGUMENT:

1. THE DECISION OF THE COURT OF

CLAIMS IMPROPERLY SANCTIONED

BONNEVILLE’S TOTAL DISREGARD OF

THE CLASSIFICATION ACT OF 1949 AND

A CIVIL SERVICE COMMISSION FINAL

DETERMINATION SPECIFICALLY AU-

THORIZED BY THAT ACT WHEN IT ER-

RONEOUSLY SUPERSEDED THE

STATUTORY POWERS OF THE COMMIS-

SION TO DETERMINE FINALLY

WHETHER A FEDERAL EMPLOYEE IS

COVERED OR EXEMPTED BY THE 1949

MEM <evewesevlecdegeneeeveoshbeeeeneeeus 15

1]. WHETHER THE CLASSIFICATION ACT OF

1949 REPEALED THAT PORTION OF THE

BONNEVILLE PROJECT ACT, = AS

AMENDED IN 1945, WHICH HAD GIVEN

BONNEVILLE THE POWER TO FIX PETI-

TIONERS’ WAGES WITHOUT REGARD TO

ANY OTHER LAWS, RULES OR REGULA-

TIONS RELATING TO THE PAYMENT OF

EMPLOYEES OF THE UNITEDSTATES ......... 22

Il. PETITIONERS ARE BEING UNLAWFULLY

DENIED 25 PERCENT SUNDAY PREMIUM

PAY REQUIRED BY SECTION 405(f) OF

THE FEDERAL EMPLOYEES SALARY

ALT GP FOGG, SUBA. GSSOD 2c ccccccesers 24

COED 645 65-606 h es ene ee eel eee eee cee 26

(ii)

Page

Pe Lincs ee pp ahaekesheas dees 0a Cea ees la

EE a ae be ns oe che e186 Eee eee ee eens lb

cc cet onde Dey oe a ek ok hoe eee eee Ic

Ce eee ee Cee SNES bE ECESORE OOS REO RS ld

TABLE OF AUTHORITIES

Cases:

Abell v. The United States, 518 F.2d 1369 (Ct. Cl.

Cova se dasa ee be eek es be bee ae Oe he bee |

Federal Communications Commission v. Pottsville

Broadcasting Company, 309 U.S. 134(1940) ....... 17,21

F.T.C. v. Manager, Retail Credit Company, Miami

Beach Office, 515 F.2d 988 (D.C. Cir. 1975) .......... 18

General Motors Acceptance Corporation v. Whisnant,

Se a PU ED 65 9 abs ent undsdvecens 19

Grey v. Powell, 314 U.S. 402(1941) ................ 17,21

Morton v. Mancari, 417 U.S. 535 (1974) ............... 22

National Petroleum Refiners Association v. F.T.C.,

482 F.2d 672 (D.C. Cir. 1973), cert. denied, 415

| Pr ee ee a eee ee ee ee 23-24

Smither and Company, Inc. v. Coles, 100 U.S. App.

D.C. 68, 242 F.2d 220, cert. denied, 354 US.

PT “isn ken b douse oe Keb ws 6b 20 O00 6 Ow 58 19

Steed v. Roundy, 342 F.2d 159 (10th Cir. 1965) .....-.... 23

Udall v. Tallman, 380 US. 1(1965) ........ccccccveee 18

United States v. Bergh, 352 U.S.40(1956) ............. 19

Statutes and Regulations:

Act of May 29, 1930 (46 Stat.468) ........0 ccc ceeeee 3

ce nae 3,18,20,22

Classification Act of 1949... . 2,6,7,8,11,13,14,15,18,19,20,21,

22,23 ,24,25

ra os. 6 a es ae we 6a Se Oe RA EO 18,23

§5101 (formerly Section 101 of the Classif.-a-

rr rea Se eer 6,24

iii)

Page

§5102 (formerly Section 202 of the Classifica-

tion Act of 1949) ......... 6-8,15,18,20,21,23,24,25

§5103 (formeriy Section 203 of the Classifica-

ED Dh 6's oh eet aw ees oe 8,15,16,21

EE a ee ee eee Lee eee eee 8,25

PD. thease whedeseee <aee > o54-V ee Dake 8-925

DE s~sd5n denn ee eneee ke eeeenee eae 10,11,25

ee ee ee rae. me 10

SPT T CeCe CTT Le eee TT Te 10-11,24,25

EE 2. 5 6 6 ok ge eK SON 6 Odo Oe SEDO EE 11

CE ov ceed deh Oak oe RS 11,18,19,20,23

a ee ee 11,18,19,20,23,24

Section 10(b) of the Bonneville Project Act of 1937,

as amended by Section 5(b) of the Act of Octo-

ee eS 4 n $ CROs eee 2 ,3-4,13,14,15,22,23 24

Section 23 of the Independent Offices Appropria-

tions Act, 1935, enacted March 28, 1934 (48

ee Peer eT eee ene 3

Section 405(f) of the Federal Employees Salary Act

of 1966 [5 U.S.C. §5544(a)] ...... 2,4,10-11,13,14,24,25

Pes SE eb co 44Gee eee ceaae aoe ee ees (383 4-5,16

ERS I Ge Poets emis er an eee 4

EEE rae ee et oe $-6,16

I <6 ee OS ade Se Cae ee tee a as aeigle 6,16,17

SETS bo catevesia canes inuwree so ees 23

RIN di era es oe ead is Se ana 11-12,17

ED <6 ss sat CREECH RES CORREO O OS 2

Miscellaneous:

ED 5 0), OO os co wees se wenn i 20

S. Report No. 847, 81st Cong., Ist Sess. (1949) .......... 20

H. Rep. No. 1264, 81st Cong., Ist Sess. (1949) ........... 21

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1975

No.

LEROY W. ABELL AND JACK R. BARGER, et al.,

Petitioners

THE UNITED STATES,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF CLAIMS

Leroy W. Abell and Jack R. Barger, et al, petition for

a writ of certiorari to review the judgment of the

United States Court of Claims in this Case.

OPINION BELOW

The opinion of the Court of Claims (App. A, infra,

p. la), is reported at 518 F.2d 1369 (1975).

JURISDICTION

The judgment of the Court of Claims (App. A, infra,

p. la), was entered on June 25, 1975. Petitioners’

motion for rehearing was denied on January 9, 1976,

(App. B, infra, p. 1b).

The jurisdiction of this Court is invoked under 28

U.S.C. §1255(1).

QUESTIONS PRESENTED

Petitioners, wage board employees of the Bonneville

Power Administration of the Department of the Interior

(hereinafter ““Bonneville’’) brought suit in the Court of

Claims seeking 25 percent Sunday premium back pay

for work performed from July 18, 1966, as required by

Section 405(f) of the Federal Employees Salary Act of

1966 [5 U.S.C. §5544(a)]. The Court of Claims, in a

2-1 decision, held petitioners were not entitled to re-

cover. The following questions are presented:

1. Whether any federal agency, including Bonneville,

can totally disregard the Classification Act of 1949 and

a Civil Service Commission final determination spe-

cifically authorized by that Act, in the setting of wages

for its federal employees?

2. Whether the Classification Act of 1949 superseded

Section 10(b) of the Bonneville Project Act of 1937, as

amended by Section 5(b) of the Act of October 23,

1945?

3. Whether petitioners are being unlawfully denied

25 percent Sunday premium pay required by Section

405(f) of the Federal Employees Salary Act of 1966, 5

U.S.C. §5544(a)?

STATUTES AND REGULATIONS INVOLVED

Section 23 of the Independent Offices Appropria-

tions Act, 1935, enacted March 28, 1934 (48 Stat.

522), in relevant part provides:

The weekly compensation... for the several trades

and occupations, which is set by wage boards or

other wage-fixing authorities, shall be re-established

and maintained at rates not lower than necessary

to restore the full weekly earnings of such em-

ployees in accordance with the full-time weekly

earnings under the respective wage schedules in

effect on June 1, 1932: Provided, That the regular

hours of labor shall be compensated for at the rate

of not less than time and one half.

x** * *k *

Section 10(b) of the Bonneville Project Act of 1937

as amended by section 5(b) of the Act of October 23,

1945 (S57 STAT 547), in relevant part provides:

The Administrator, the Secretary of War, and the

Federal Power Commission, respectively, are au-

thorized to appoint, subject to the civil service

laws, such officers and employees as may be neces-

sary to carry out the purposes of this Act, the

appointment of whom is not otherwise provided

for, and to fix their compensation in accordance

with the Classification Act of 1923, as amended.

The Administrator may employ laborers, me-

chanics, and workmen in connection with con-

struction work or the operation and maintenance

of electrical facilities (hereinafter ‘laborers, me-

chanics, and workmen’) subject to the civil service

laws and fix their compensation without respect to

the Classification Act of 1923, as amended, and

any other laws, rules, or regulations relating to the

payment of employees of the United States except

the Act of May 29, 1930 (46 STAT 468) as

amended, to the extent that it otherwise is appli-

cable.

x* * kK *k *

Section 405(f) of the Act of July 18, 1966 (80 Stat.

298), in relevant part provides: Se

The first paragraph of section 23 of the Indepen-

dent Offices Appropriation Act, 1935, as amended

(S U.S.C. 673c), is amended by inserting immedi-

ately before the period at the end thereof the

following: “‘Provided further, That employees sub-

ject to this section whose regular work schedule

includes an eight-hour period of service any part of

which is within the period commencing at mid-

night Saturday and ending at midnight Sunday

shall be paid extra compensation at the rate of 25

per centum of his hourly rate of basic compensa-

tion for each hour of work performed during that

eight-hour period of service.”

* * * *k *

The Administrative Procedure Act, Title 5, in rele-

vant part provides:

$551. Definitions

For the purpose of this subchapter—

(1) “agency” means each authority of the Govern-

ment of the United States, whether or not it is

within or subject to review by another agency, but

does not include—

(A) the Congress;

(B) the courts of the United States;

sions of the United States;

(D) The government of the District of Colum-

bia:

Or except as to the requirements of section 552 of

this title-

(E) agencies composed of representatives of the

parties or of representatives of organizations of the

parties to the disputes determined by them;

(F) courts martial and military commissions;

(G) military authority exercised in the field in

time of war or in occupied territory; or

(H) functions conferred by sections 1738, 1739,

1743, and 1744 of title 12; chapter 2 of title 41;

or sections 1622, 1884, 1891-1902, and former

section 1641(b) (2), of title 50, appendix;

(2) “person” includes an individual, partnership,

corporation, association, or public or private organi-

zation other than an agency;

*x* * * * *

§701. Application; definitions

(a) This chapter applies, according to the provisions

thereof, except to the extent that—

(1) statutes preclude judicial review; or

(2) agency action is committed to agency discre-

tion by law.

(b) For the purpose of this chapter—

(1) “agency” means each authority of the Govern-

ment of the United States, whether or not it is

within or subject to review by another agency, but

does not include—

(A) the Congress;

(B) the courts of the United States;

sions of the United States;

(D) the government of the District of Columbia:

(E) agencies composed of representatives of the

parties or of representatives of organizations of the

parties to the disputes determined by them;

(F) courts martial and military commissions;

(G) military authority exercised in the field in

time of war or in occupied territory; or

(H) functions conferred by sections 1738, 1739,

1743, and 1744 of title 12; chapter 2 of title 41;

or sections 1622, 1884, 1891-1902, and former

section 1641(b) (2), of title 50, appendix; and

eee ttt,CG,G,G,O,G,

(2) “‘person’’, “‘rule’’, “order’’, “‘license’”’, ‘“‘sanc-

tion’, “relief’’, and “agency action” have the mean-

ings given them by section 551 of this title.

* * KK *

§702. Right of review

A person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency

action within the meaning of a relevant statute, is

entitled to judicial review thereof.

*x** Kk *K *

The Classification Act, 5 U.S.C. 5101, et seq., in

relevant part is given below.

5 U.S.C. §5101 (formerly Section 101 of the Classi-

fication Act of 1949), in relevant part provides:

§5101. Purpose

It is the purpose of this chapter to provide a plan for

classification of positions whereby —

(1) in determining the rate of basic pay which an

employee will receive—

(A) the principle of equal pay for substantially

equal work will be followed; and

(B) variations in rates of basic pay paid to dif-

ferent employees will be in proportion to sub-

stantial differences in the difficulty, responsibility,

and qualification requirements of the work per-

formed and to the contributions of employees to

efficiency and economy in the service:

* kK Ke Kk *

5 U.S.C. §5102 (formerly Section 202 of the Classi-

fication Act of 1949), in relevant part provides:

§5102. Definitions; application

(a) For the purpose of this chapter—

(1) “agency” means—

(A) an Executive agency;

(B) the Administrative Office of the United

States Courts;

(D) the Botanic Garden;

(E) the Government Printing Office;

(F) the Office of the Architect of the Capitol;

and

(G) the government of the District of Columbia;

but does not include—

(i) a Government controlled corporation;

(ii) the Tennessee Valley Authority;

(iii) The Alaska Railroad;

(iv) the Virgin Islands Corporation;

(v) the Atomic Energy Commission;

(vi) the Central Intelligence Agency;

(vii) the Panama Canal Company; or

(viii) the National Security Agency, Department

of Defense:

(2) “employee” means an individual empioyed in

or under an agency;

(3) “position” means the work, consisting of the

duties and responsibilities, assignable to an employee;

(4) “class” or “‘class of positions” includes all po-

sitions which are sufficiently similar, as to—

(A) kind or subject-matter of work;

(B) level of difficulty and responsibility; and

to warrant similar treatment in personnel and pay

administration; and...

(b) Except as provided by subsections (c) and (d) of

this section, this chapter applies to all civilian positions

and employees in or under an agency....

* * * * *

§5102(c)(7) (formerly Section 202(7) of the Classifi-

cation Act of 1949), in relevant part provides:

(7) employees in recognized trades or crafts, or

other skilled mechanical crafts. or in unskilled,

semiskilled, or skilled manual-labor occupations,

and other employees including foremen and super-

visors in positions having trade, craft, or laboring

experience and knowledge as the paramount re-

quirement, and employees in the Bureau of En-

graving and Printing whose duties are to perform

or to direct manual or machine operations requir-

ing special skill or experience, or to perform or

direct the counting, examining, sorting, or other

verification of the product of manual or machine

Operations;

* * Kk K *

§5103 (formerly Section 203 of the Classification

Act of 1949), in relevant part provides:

§5103. Determination of applicability

The Civil Service Commission shall determine finally

the applicability of section 5102 of this title to specific

positions and employees, except for positions and em-

ployees in the Office of the Architect of the Capitol.

*x* kK * *

§5341. Policy

It is the policy of Congress that rates of pay of

prevailing rate employees be fixed and adjusted from

time to time as nearly as is consistent with the public

interest in accordance with prevailing rates and be based

on principles that—

(1) there will be equal pay for substantially equal

work tor all prevailing rate employees who are work-

ing under similar conditions of employment in all

agencies within the same local wage area;

* kK K *

§ 5342. Definitions; application

(a) For the purpose of this subchapter

(1) “agency” means an Executive agency; but does

not include-

(A) a Government controlled corporation:

(B) the Tennessee Valley Authority:

(D) the Virgin Islands Corporation:

(E) the Atomic Energy Commission;

(F) the Central Intelligence Agency;

(G) the Panama Canal Company;

(H) the National Security Agency, Department

of Defense; or

(1) the Bureau of Engraving and Printing, except

for the purposes of section 5349 of this title;

(2) “prevailing rate employee” means—

(A) an individual employed in or under an

agency in a recognized trade or craft, or other

skilled mechanical craft, or in an unskilled, semi-

skilled, or skilled manual labor occupation, and

any other individual, including a foreman and a

supervisor, in a position having trade, craft, or

laboring experience and knowledge as the para-

mount requirement;

(B) an employee of a nonappropriated fund in-

strumentality described by section 2105S(c) of this

title who is employed in a recognized trade or

craft, or other skilled mechanical craft, or in an

unskilled, semiskilled, or skilled manual labor occu-

pation, and any other individual, including a fore-

man and a supervisor, in a position having trade,

craft, or laboring experience and knowledge as the

paramount requirement; and

vice, Veterans’ Administration, excepted from

chapter 51 of this title by section 5102(c) (14) of

this title who is employed in a recognized trade or

craft, or other skilled mechanical craft, or in an

unskilled, semiskilled, or skilled manual labor occu-

pation, and any other individual, including a fore-

man and a supervisor, in a position having trade,

craft, or labor experience and knowledge as the

paramount requirement; and

(3) “position” means the work, consisting of

duties and responsibilities, assignable to a prevailing

rate employee.

(b) (1) Except as provided by paragraphs (2) and (3)

of this subsection, this subchapter applies to all prevail-

ing rate employees and positions in or under an agency.

(2) This subchapter does not apply to employees and

positions described by section 5102(c) of this title

other than by—

(A) paragraph (7) of that section to the extent

that such paragraph (7) applies to employees and

positions other than employees and positions of the

Bureau of Engraving and Printing; and

(B) paragraph (14) of that section.

(3) This subchapter, except section 5348, does not

apply to officers and members of crews of vessels ex-

cepted from chapter 51 of this title by section 5102(c)

(8) of this title.

* * kK *

§ 5343. Prevailing rate determinations; wage schedules;

night differentials

(a) The pay of prevailing rate employees shall be

fixed and adjusted from time to time as nearly as is

consistent with the public interest in accordance with

prevailing rates. Subject to section 213(f) of title 29,

the rates may not be less than the appropriate rates

provided by section 206(a) (1) of title 29.

* * KK *

§5541. Definitions

For the purpose of this subchapter—

(2) “‘employee”” means—

but does not include—

(xi) an employee whose pay is fixed and ad-

justed from time to time in accordance with pre-

vailing rates under subchapter IV of chapter 53 of

this title, or by a wage board or similar administra-

tive authority serving the same purpose, except as

provided by section 5544 of this title;

* * kK *

§5544. Wage-board overtime and Sunday rates; com-

putation

(a) An employee whose pay is fixed and adjusted

from time to time in accordance with prevailing rates

under section 5343 or 5349 of this title, or by a wage

board or similar administrative authority serving the

same purpose, is entitled to overtime pay for overtime

work in excess of 8 hours a day or 40 hours a

week. ... An employee subject to this subsection whose

regular work schedule includes an 8-hour period of

service a part of which is on Sunday is entitled to

additional pay at the rate of 25 percent of his hourly

rate of basic pay for each hour of work performed

during that 8-hour period of service.

x** * * *

Section 1204 of the Classification Act of 1949

states:

All laws or parts of laws inconsistent with this act

are hereby repealed to the extent of such incon-

sistency.

x** * * *

Section 1106 of the Classification Act of 1949 pro-

vided:

(a) Whenever reference is made in any other law

to the Classification Act of 1923, as amended,

such reference shall be held and considered to

mean this Act. Whenever reference is made in any

other law to a grade of the Classification Act of

1923, as amended, such reference shall be held and

considered to mean the corresponding grade shown

in section 604 of this Act.

(b) The application of this Act to any position,

officer, or employee shall not be affected by rea-

son of the enactment of subsection (a).

x** Kk *

The Indian Claims Commission Act, 25 U.S.C. §70s.,

in relevant part provides:

§70s. Review by Court of Claims and Supreme

Court

...(b) When the final determination of the

Commission has been filed with the clerk of said

Commission the clerk shall give notice of the filing

of such determination to the parties to the pro-

ceeding in manner and form as directed by the

Commission. At any time within three months

from the date of the filing of the determination of

the Commission with the clerk either party may

appeal from the determination of the Commission

to the Court of Claims, which Court shall have

exclusive jurisdiction to affirm, modify, or set

aside such final determination.

STATEMENT

During all or part of the period from July 18, 1966

to the present time, petitioners were civil service em-

ployees serving as substation operators or power dis-

patchers for the Bonneville Power Administration, Jt.

Stip.' p. 8, an agency within the Department of

Interior charged with the responsibility of marketing

electric power generated from Federal hydroelectric

projects in the Pacific Northwest. Id. at 4. During all or

part of the period of their employment as stated above,

each petitioner was in the competitive service of the

United States and paid on an hourly basis. Id. at 8.

Bonneville’s hourly employees are appointed in accord-

ance with the civil service laws of the United States and

for purposes of retirement, sick leave, annual leave,

severance pay, workmen’s compensation, and other

benetits are treated substantially the same as annual

employees. Id. at 5. The authority of Bonneville to fix

‘Jt. Stip.” refers to the thirty-nine (39) stipulated facts

between the parties, dated November 14, 1973.

the compensation of its hourly employees without re-

gard to any law, rule or regulation of the United States

is contained in the 1945 amendments to the Bonneville

Project Act (Act of October 23, 1945, 59 Stat. 546,

547). Id. at 6.

Petitioners assert this specific power has been re-

pealed by the Classification Act of 1949.

Sunday premium pay for those employees to whom

it is applicable was established by Section 405 of the

Federal Employees Salary Act of 1966 (80 Stat. 288).

Each of the petitioners are asserting a claim for addi-

tional pay at the rate of twenty-five percent (25%) of

his hourly rate of basic pay for each hour of work

performed during an eight (8) hour period of service,

any part of which occurred on a Sunday. Id. at 8.

From July 18, 1966 to the present, petitioners were

paid on a basis of a forty (40) hour week at hourly

rates of pay. Id. at 9.

Employees of other Government agencies, more par-

ticularly those of the Bureau of Reclamation (like

Bonneville, an agency administered by the United States

Department of the Interior), and those of the United

States Army Corps of Engineers, are engaged in similar

work in the vicinity and receive extra compensation at

the rate of twenty-five percent (25%) of each of that

agency’s basic rate of compensation for Sunday work.

Id. at 10. None of petitioners received any premium

compensation for Sunday work as that term is used in

the Federal Employees Salary Act of 1966. Id. at 9.

Bonneville has denied liability for Sunday premium

pay for petitioners on the grounds that Section 405 of

the Federal Employees Salary Act of 1966 is not appli-

cable to petitioners. Id. at 10.

Petitioners instituted this suit in the Court of Claims

on June 26, 1972, Id. at 10, seeking 25 percent Sunday

premium back pay for work performed from July 18,

1966 to the present time, as required by Section 405(f)

of the Federal Employees Salary Act of 1966, 5 U.S.C.

§ 5544(a). ,

The Court of Claims, in a 2-1 decision, held that

petitioners could not recover on the basis that the 1945

law [Section 10(b) of the Bonneville Project Act] was

not repealed by the Classification Act of 1949, and

therefore, petitioners’ wages may be fixed without re-

gard to Section 405(f) of the Federal Employees Salary

Act of 1966, 5 U.S.C. §5544(a). (App. A, infra, p.

lia).

REASONS FOR GRANTING CERT

The Court of Claims in this case has erroneously

superseded the 1959 Civil Service Commission final de-

termination interpreting the Classification Act of 1949

as it relates favorably to the laborers and mechanics of

Bonneville. This action has departed from the accepted

course of judicial review of the Commission's expertise

and will seriously impair the Commission’s future

ability to administer the Classification Act of 1949

pursuant to the statutory framework and legislative in-

tent of that Act. Moreover, this Court should decide

the important question of Federal law (not yet decided

by this Court or any other court except the Court of

Claims in this case), namely: Whether any federal

agency, including Bonneville, can totally disregard the

Classification Act of 1949 and a Civil Service Commis-

sion final determination specifically authorized by that

Act, in setting wages for its federal employees.

THE DECISION OF THE COURT OF

CLAIMS IMPROPERLY SANCTIONED BON-

NEVILLE’S TOTAL DISREGARD OF THE

CLASSIFICATION ACT OF 1949 AND A

CIVIL SERVICE COMMISSION FINAL DE-

TERMINATION SPECIFICALLY AUTHOR-

IZED BY THAT ACT WHEN IT ERRONE-

OUSLY SUPERSEDED THE STATUTORY

POWERS OF THE COMMISSION TO DE-

TERMINE FINALLY WHETHER A

FEDERAL EMPLOYEE IS COVERED OR

EXEMPTED BY THE 1949 ACT.

Petitioners contend the Civil Service Commission, in

response to an opinion solicited from the Commission

by the Comptroller General, issued a final determina-

tion in 1959 that Section 10(b) of the Bonneville

Project Act, as amended, Section 5(b) of the Act of

October 23, 1945, was superseded by the Classification

Act of 1949.* Thus, there existed a Commission posi-

tion in favor of the Bonneville employees adverse to

Bonneville. This was a final determination and binding

on Bonneville. However, Bonneville has never followed

this final determination.

Judge Davis, in his dissenting opinion in the Court of

Claims decision below, succinctly stated:

For me the crucial feature of this case is Section

203 of the Classification Act of 1949, 63 Stat.

956, 5 U.S.C. §5103 (1970), which provides (as it

now appears in the Code) that “[t, 1.e Civil Service

Commission shall determine finally the applica-

bility of section 5102 of this title [§§201 and

202 of the 1949 Act] to specific positions and

>The full text of the Commission’s two-page final determina-

tion is found in App. C, infra, p. Ic.

employees, except for positions and employees in

the Office of the Architect of the Capitol”

[emphasis added]. I take this to mean what it

says—that the Civil Service Commission is the final

arbiter. There is not the slightest constitutional

impediment to such a provision by Congress where

the substantive legislation concerns federal em-

ployees and the Commission decides in favor of

employees’ rights. That is what the Commission

has explicitly done, with respect to the very ques-

tion before us, in a case in which its view was

officially requested and it had to pass directly on

the issue. The court thinks the Commission was

wrong, but section 203 seems to me to foreclose

our superseding the Commission’s position in favor

of the employees, at the instance of the employing

agency, even through the problem is a legal one.

This is, as I see it, the mandate of Congress. Under

the law the Bonneville Power Administration was

required to follow the Commission’s directive

favoring the employee. All the decisions holding

that there is some sort of judicial review, despite

“finality” language comparable to that here, are

cases in which the Commission (or other agency)

decided adversely to the employee.?

Supportive of Judge Davis’ reasoning is the Adminis-

trative Procedure Act, 5 U.S.C. §702, which specifically

limits the right of review to “any person suffering legal

wrong because of an agency act or adversely affected

and grieved by such action.” A “person” is defined to

include individuals, partnerships, corporations, associa-

tions, or public or private organizations of any charac-

ter other than agencies. 5 U.S.C. §551(2). An “agency”

is defined to include each authority of the Government

of the United States. 5 U.S.C. §701(b)(1). Thus, an

“agency,” including Bonneville, would be precluded

> App. A, infra, p. 24a.

from review of the 1959 Commission final determina-

tion adverse to Bonneville under 5 U.S.C. §702.

This is not to say an agency can never seek judicial

review of an administrative determination. An agency

may seek judicial review of an administrative determina-

tion, but only when Congress expressly authorizes

judicial revicw.* Congress did not so provide for Bonne-

ville.

It is not the province of a court to absorb the

administrative functions to such an extent that the

executive or legislative agencies become mere fact find-

ing bodies deprived of the advantages of prompt and

definitive action.5 Unless the vital differentiations be-

tween the functions of judicial and administrative tri-

bunals are observed, courts will stray outside their

province and read the laws of Congress through the

distorting lenses of inapplicable legal doctrine.°

The excuse given by the court majority for infringing

on the Commission’s statutory power was that the

Commission’s determination was clearly “‘a misconstruc-

tion of the governing legislation.””’

*Under the Indian Claims Commission Act, 25 U.S.C. §70,

@s.(b), either party (the Indian tribe or the Government), may

appeal from the determination of the Commission to the Court

of Claims.

‘Gray v. Powell, 314 U.S. 402, 412 (1941).

ing Company, 309 U.S. 134, 144 (1940).

7App. A., infra, p. 18a. However, the case relied on by the

court dealt with judicial review sought by a civilian government

worker, not the agency. This strengthens the argument in Ji dge

Davis’ dissent that judicial review of an agency decision is

allowed only when the agency has decided adversely to the

employee (App. A., infra, p. 24a), or a specific statute allows the

agency judicial review. Cf. n.4 supra.

In fact, it is the court’s majority which has “‘miscon-

strued”” both the Commission’s 1959 final determina-

tion adverse to Bonneville and the Classification Act of

1949. The 1959 Commission final decision, on which

petitioners rely, cited Sections 201(b) and 1106(a) and

1106(b) as the statutory authority for its final deter-

mination adverse to Bonneville, as follows:

Section 201(b) of the Classification Act of 1949

provides that “Subject to the exemptions specified

in section 202, and except as provided in sections

204 and 205, this Act shall apply to all civilian

positions, officers, and employees in or under the

departments.” Attention is also invited to the pro-

visions of section 1106 of the Act:

‘““(a) Whenever reference is made in any other

law to the Classification Act of 1923, as

amended, such reference shall be held and con-

sidered to mean this Act. * * *

“(b) The application of this Act to any posi-

tion, officer, or employee shall not be affected

by reason of the enactment of subsection (a)”.

Thus, all exceptions from the Classification Act

of 1923 were superseded by the 1949 Act, and no

exceptions from the 1949 Act were made unless

they were specified in section 202.°

There is a presumption against interpreting a statute

in a way which renders it ineffective. #.7.C. v. Manager,

Retail Credit Company, Miami Branch Office, 515 F.2d

988, 994 (D.C. Cir. 1975). Yet, the Court’s majority

"App. C., infra, p. 27a. When faced with a problem of

Statutory construction, great deference is to be shown to the

interpretation given the statute by the agency charged with its

administration. A court need not find that the agency’s construc-

tion is the only reasonable one, or even that it is the result the

court would have reached had the question arisen in the first

instance in judicial proceedings. Udall v. Tallman, 380 US. |

(1965).

erroneously failed to even mention subsection 1106(b)

in its opinion,’ though that subsection controls the

effect of subsection 1106(a), supra. The 1949 Act and

Section 1106 in particular can make statutory sense

only when both subsections 1106(a) and 1106(b) are

considered together. General Motors Acceptance Corpo-

ration v. Whisnant, 387 F.2d, 774, 778 (Sth Cir. 1968);

Smither and Company, Inc. v. Coles, 100 U.S. App.

D.C. 68, 70, 242 F.2d 220, 222, cert. denied, 354 U.S.

914 (1957). The failure of the court to consider and

apply subsection 1106(b) of the Classification Act of

1949 to that Act’s effect on pre-existing exemptions

(including Bonneville), resulted in the court majority

itself being misguided so as to “misconstrue the govern-

ing legislation [Classification Act of 1949].”!°

This Court has previously given weight to the re-

codification of statutes by the House Committee on the

Revision of Laws in support of this Court’s decisions.

United States v. Bergh, 352 U.S. 40 (1956). The proper

interpretation of sections 1 106(a) and (b) of the Classifi-

cation Act of 1949 (an interpretation on which peti-

tioners rely but which the court’s majority failed to

give because it erroneously ignored or otherwise miscon-

strued section 1106(b) of that Act), was given by

Edward F. Willett, Jr., Law Revision Counsel, U.S.

House of Representatives, in pertinent part as follows:

1....[S]ection 1106 of the 1949 Act was a tech-

nical section appearing in Title XI, ““General Provi-

sions,” rather than in the “Coverage and

Exemptions” title, Title I] of the Act. Subsection

(a) of section 1106 was a short cut fashioned by

the draftsman to conform to the 1949 Act those

a. App. A., infra, pp. 1Sa-17a.

'0 App. A., infra, p. 18a.

references in other laws to the 1923 Act without

having to identify and specifically amend all the

laws where references to the 1923 Act appeared.

That it was not intended to provide exemptions

beyond those carried in Title II of the 1949 Act is

clear from the language of subsection (b). That

language ensures that subsection (a) would not

have the effect of providing exemptions to the

1949 Act that were additive to those contained in

Title II.

2. With respect to any law containing an exemp-

tion from the 1923 Act, it is the opinion of

Affiant, who holds the office of Law Revision

Counsel, formerly the Law Revision Counsel of the

House Judiciary Committee, that the substitution

referred to in Section 1106(a) is, by virtue of

Section 1106(b), proper only if a corresponding

exemption can be found in Title II of the 1949

Act. If a corresponding exemption is not found in

Title II], then the exemption from the 1923 Act is

not an exemption from the 1949 Act, and a sub-

stitution under Section 1106(a) is not authorized.

A substitution in such a law, without a corre-

sponding exemption contained in Title Il of the

1949 Act, would have contravened Section

1106(b) because the substitution would have af-

fected the application of the 1949 Act solely by

reason of the substitution.

Support for this interpretation is contained in the

legislative history of the 1949 Act. Senate Report

No. 847, 8lst Congress, Ist Session (1949) on S.

2379, the Senate bill, reads as follows on page 30:

The general plan of Title II is to express a

comprehensive general coverage in Section

201, subject to specific exemptions in Section

202. Thus, in order for a department, or a

group of positions or employees in or under a

department, to be exempted from the bill, an

express exemption must be found, either in

Section 202 or in some other provision of

future law. [Emphasis supplied. ]

See, also, House Report No. 1264, 81st Con-

gress, Ist Session (1949) on H.R. 5931, the com-

panion House bill that was enacted as_ the

Classification Act of 1949, that reads on page 5:

In addition, a large number of individual ex-

emptions in organic or appropriation Acts,

such as exemptions for attorneys, engineers,

experts, etc., in certain agencies would be

repealed by implication and the positions

brought within the bill."

Thus, the majority of the Court of Claims in this

case has improperly departed from the accepted course

of judicial review, Gray v. Powell, supra, 314 U.S. at

412: F.CC. ». Pottsville Broadcasting Company, supra,

309 U.S. at 144, by illegally infringing on the Commis-

sion’s powers specifically authorized by the Classifica-

tion Act of 1949, 5 U.S.C. §5103, to determine finally

the applicability of that Act to Bonneville and peti-

tioners. Petitioners’ Cross-Motion for Summary Judg-

ment should have been granted and that of respondent

denied.

"The full text of the Willett Affidavit is found in App. D.,

infra, pp. 1d-Sd.

Il.

WHETHER THE CLASSIFICA” iON ACT OF

1949 REPEALED THAT PORTION OF THE

BONNEVILLE PROJECT ACT, AS

AMENDED IN 1945, WHICH HAD GIVEN

BONNEVILLE THE POWER TO FIX PETI-

TIONERS’ WAGES WITHOUT REGARD TO

ANY OTHER LAWS, RULES OR REGULA-

TIONS RELATING TO THE PAYMENT OF

EMPLOYEES OF THE UNITED STATES.

Courts are not at liberty to pick and choose among

congressional enactments, and when two statutes are

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

absent a clearly expressed congressional intention to the

contrary, to regard each as effective. Morton v. Mancari,

417 U.S. $35, 551 (1974).

In this case, the Court of Claims majority errone-

ously ignored the clear intention of Congress to repeal

all previous laws inconsistent with the Classification Act

of 1949, specificaliy that portion of section 10(b) of

the Bonneville Project Act of 1937 as amended, which

provided that the administrator of Bonneville could

employ laborers, mechanics and workmen“... and fix

their compensation without regard to the Classification

Act of 1923, and any other laws, rules, or regulations

relating to the payment of employees of the United

States.””'?

Two acts upon the same subject must stand together,

if possible, but a later act will repeal an earlier one

'2Section 10(b) of the Bonneville Project Act, 50 Stat. 731,

as amended by Section S(b) of the Act of October 23, 1945 (57

Stat. 547), 16 U.S.C. §832i (1970).

insofar as the provisions of the later act are repugnant

to those of the earlier act if the acts are repugnant in

any of their provisions. Steed v. Roundy, 342 F.2d

159, 161 (10th Cir. 1965).

Congress expressly prohibited the co-existence of the

Classification Act of 1949 with those provisions of

section 10(b) of the Bonneville Project Act which peti-

tioners contend were repealed. This express Congres-

sional intent is found in the following sections of the

1949 Act: Section 201 now codified as 5 U.S.C.

5102(b); Section 202(7) now codified as 5 U.S.C.

5102(c)(7); and Sections 1106(a) and 1106(b).

5 U.S.C. §5102(b) states: “Except as provided by

subsections (c) and (d) of this section, this chapter

applied to all civilian positions and employees in or

under an agency.” [Emphasis supplied.] 5 U.S.C.

§5102(a)(1) lists eight specific entities not included in

the definition of “‘agency.”’ Bonneville, which is within

the Department of the Interior, 16 U.S.C. 832(a), is not

listed, although two other Interior Department bodies

are listed.'?

The Congressional purpose is clear that all exemp-

tions to the provisions of the Classification Act of 1949

must be expressly found in the text of that statute.

Any exemption which relies on an independent source

of exemption for federal civilian employees (as respon-

dent contends) is irreconcilable with the plain meaning

of the statute and legislative history of the 1949 Act

and is repealed. Judicial interpretation of legislative

intent should be consistent with the plain language of a

statute. National Petroleum Refiners Association vy.

'3 Ajaska Railroad, 5 U.S.C. 5102(a)(1)iii), and the Virgin

Islands Corporation, 5 U.S.C. 5102(a 1 iv).

F.T.C., 482 F.2d 672 (D.C. Cir. 1973), cert. denied,

415 U.S. 951 (1974).

Thus, the majority of the Court of Claims holding

that section 10(b) of the Bonneville Project Act dealing

with the fixing of compensation was not repealed by

the Classification Act of 1949 {App. A., infra, p. 11a),

renders the express statutory scheme of the 1949 Act

ineffective and is therefore erroneous. '*

Il.

PETITIONERS ARE BEING UNLAWFULLY

DENIED 25 PERCENT SUNDAY PREMIUM

PAY REQUIRED BY SECTION 405(f) OF

THE FEDERAL EMPLOYEES SALARY ACT

OF 1966, 5 U.S.C. §5544(a).

The purpose of Chapter 51, 5 U.S. Code, which

includes 5 U.S.C. 5102(c)(7), infra, is to provide a plan

for classification of positions whereby the principle of

equal pay for substantially equal work will be followed

throughout all civilian positions of the federal govern-

ment (Bonneville included). 5 U.S.C. §5101(1)(A). Peti-

tioners contend Congress specifically intended to

benefit all wage board employees in the 1966 Act

regardless of other pay rules and regardless of prevailing

rates Or practices in the private sector.

Section 405(f) of the Federal Employees Salary Act

of 1966, 5 U.S.C. §5544(a), provides 25 percent

Sunday premium pay to all federal prevailing rate em-

ployees except those who work for agencies specifically

'* Petitioners allege the court completely misread section 1106

of the 1949 Act by ignoring subsection 1106(b), the controlling

subsection. See Petition, supra, pp. 17-19.

listed in 5 U.S.C. 5342(a)(1)(A-1). Bonneville is not

listed as being among these excepted agencies.'* Peti-

tioners are “prevailing rate employees” as defined in 5

U.S.C. §5342(a)(2)A) and (b)(2)(A). Since prevailing

rate employees are those civilian employees exempted

from classified federal positions under Section 207(7)"°

of the Classification Act of 1949, 5 U.S.C.

§5192(c)\(7), and since petitioners are included in that

exemption, petitioners are entitled to Sunday premium

pay expressly provided to all prevailing rate employees.

5 U.S.C. §5544(a).

Thus, the majority opinion of the Court of Claims

violates the express language of 5 U.S.C. §5341(1) that

there will be equal pay for substantially equal work for

all prevailing rate federal employees who are working

under similar conditions of employment in all federal

agencies within the same local wage area.

Applying this statutory mandate to the facts of this

case, since the Bureau of Reclamation (like Bonneville,

an agency administered by the Department of Interior)

and Corps of Engineers employees are engaged in work

similar to petitioners in the local wage area and receive

25 percent Sunday premium pay (Jt. Stip. at 10), the

petitioners should also be entitled to receive equal pay

for substantially equal work. Thus, petitioners are en-

titled to 25 percent Sunday premium pay, in ac-

cordance with 5 U.S.C. §5544(a). The Court of Claims

decision should be reversed.

'SBoth “the Alaska Railroad” and “the Virgin Islands Corpora-

tion” are within the Department of Interior, as is Bonneville. Yet

Bonneville had not specifically been excluded in §5342(a)(1), as

was the Alaska Railroad and the Virgin Islands Corporation. Thus,

Bonneville is subject to 5 U.S.C. §5343 and 5 U.S.C. §5544(a).

"5 U.S.C. §5342(b) 2A).

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that this petition for a writ of certiorari should be

granted.

Respectfully submitted

ROBERT A. SALTZSTEIN

WILLIAM L. FALLON

1300 Wyatt Building

Washington, D.C. 20005

Attorneys for Petitioners

Of Counsel:

PAUL G. OLSEN ‘

Suite 410 Petroleum Building

Billings, Montana 59101

APPENDIX A

Gn the Gnited States Gourt of Claims

7 (Decided June 25, 1975)

No. 261-72

LEROY W. ABELL, ET AL. vy. VITE

UNITED STATES

No. 371-73

JACK R. BARGER, ET AL. v. THE

UNITED STATES

David Minton for plaintiff; obert A. Saltzstein, attorney

of record. Wyatt, Saltzstein, Minton and Howard; Paul G.

Olsen, Jones, Olsen & Christensen; and Arnold Olsen, of

counsel.

Francis H. Clabaugh, with whom was Assistant Attorney

General Carla A. Hills, for defendant. Lawrence Cox, of

counsel.

Before Davis, Sxkettox, and Kasniwa, Judges.

ON PLAINTIFFS’ MOTION AND DEFENDANT’S CROSS MOTION FOR

SUMMARY JUDGMENT

Kastrwa, Judge, delivered the opinion of the court:

Plaintiffs, wage board employees of the Bonneville Power

Administration of the Department of the Interior (herein-

after Bonneville), claim in this suit that they are being

denied 25 per cent Sunday premium pay required by Section

405(f) of the Federal Employees Salary Act of 1966 (5

U.S.C. §5544(a)) and alternatively that if they are not

entitled to 25 per cent Sunday premium pay under this act,

577-208—75

they are nonetheless entitled to it because “the prevailing

rates in the industry provide for premium pay for Sunday

work”? and Bonneville is required to fix compensation for

plaintiffs in accordance with the prevailing rates in the

public electrical utilities industry in the Pacifie Northwest.

This is a consolidation of the cases of Parger, et al. v.

United States. Ct. Cl, No. 571-75, and Abel), et al. v. United

States, Ct. Cl. No, 261-72. There is no genuine issue as to

any material fact. Essential faets have been stipulated.

Parties have filed cross motions for summary judgment. We

hold for the defendant in both cases, allowing defendant’s

motion for summary judgment and denying plaintiffs’

motion for summnary judgment.

The stipulated facts ave as follows. Bonneville was started

and e-tablished under the Act of Angnst 20. 1937 (50 Stat.

M1, as amended, 16 U.S.C. $$ 832-8321 (1970)). within the

Department of the Interior. Tt is required and charged by

statute, Exeentive order, and orders of the Secretary of the

Interior with responsibility for marketing clectrie power

generated from Federal hydroclectrie projects in the Pacifie

Northwest (Bonneville Project Act, Act of August 20. 1937,

o0 Stat. 731. as amended, 16 U.S.C. $$ S32-Sh21 (1970): $2

River and Tfarbor Act of 1945. Act of March 2. 1995.59 Stat.

19, 22: $5 Flood Control Act of 1914. Act of December 22,

JNEE SS Stat. S87, 890: Executive Order No, 8526. 5 Fed. Reg.

3390 (1940): Seeretarial Order No. 2860. as amended, 27

Fed. Reg. 591 (1962), 28 Fed. Rew. 5273 (1963). 31 Fed. Reg.

S60 (1966)). To fulfill these responsibilities, Bonneville

has constructed, operates and maintains a major electrical

transmission system which exceeds 12.000 miles. Tt has also

construeted appropriate load dispatching centers and sub-

stations throughout the states of Oregon, Washington, Idaho

and Montana, the geographic area of its system. The trans-

mission lines and related electric facilities represent an in-

restment of more than $1.2 billion. Investment in electrical

generation facilities for which Bonneville has the repayment

obligation is an additional $1.9 billion. Total sv-tem revenues

for 1973 exceeded $177.4 million. .

Sonneville employs about 3.828 cniployees, 1.400 of whom

are hourly employees whose compensation is fixed through

collective bargaining, to operate xnd maintain this vast sys-

tem which includes more than 200 load dispatching centers

or substations, 50 of which are manned by dispatchers, oper-

ators and relief operators seven days a week throughout the

vear. Over one-half of these are manned continuously, 24

hours a day. These dispatchers, operators and relief opera-

tors are hourly employees whose rates of compensation are

fixed through contract negotiation between Bonneville and

the Columbia Power Trades Council (hereinafter the union),

a council composed of 16 unions inchiding the International

Brotherhood of Electrical Workers.

Ronneville’s hourly ciployees are appointed in accord-

anee with the Civil Service laws of the United States and

for purposes of retirement, sick leave, annual leave, sever-

ance pay, workmen’s compensation and other benefits are

treated substantially the same as annual employees. Only in

the significant area of compensation do these employees

differ markedly. Since 1945 their compensation has been

arrived at by collective bargaining and fixed without regard

to any other law. rule or regulation of the United States.

The initial antherity for Bonneville to undertake collective

bargaining and to fix the compensation ef its hourly em-

ployees in this fashion is contained in the L945 amendments

to the Bonneville Project Act (Aet of October 23, 1915,

59 Stat. 516, 547), and defendant claims that the authority

has renimined unchanged,

Between 1937 and 1945 the laborers, mechanics and work-

men employed by Bonneville were true wage board employees.

They weresexeluded from coverage of the 1923 Clas ification

Act. Their rates of pay were fixed by administrative action.

After 1945, pursnant to the above-referenced amendinents,

their compensation was fixed throngh collective bargaining.

To develop a base for negotiations, Bonneville surveyed util-

ities within the Pacific Northwest employing similar crafts.

At some time subsequent to 1945, Bonneville and the union

representing Bonneville’s hourly employees adopted the prac-

tice of making a joint survey. Representatives of Bonneville

and the union cooperate in preparing this survey. Originally,

only six utilities were surveyed ; however, when the joint sur-

vey was expanded to include the United States Bureau of

Reclamation and the Corps of Engineers, the number of util-

ities was increased to eight. These include the four largest

private electric utilities in the Pacific Northwest—Pacific

Power & Light Company, Portland General Electric Com-

pany, Puget Sound Power & Light Company and the Wash-

ington Water Power Company; two large public utility

districts (hereinafter PUD) which have significant electrical

generation—Grant County PUD and Chelan County PUD;

and the two largest municipally owned electric utilities—

Seattle City Light and Tacoma City Light.

The Bureau of Reclamation uses this survey to negotiate

wage rates for employces employed at Grand Coulee, Wash-

ington; and the Corps of Engineers submits this survey data

to a wage-fixing authority in Washington, D.C., which estab-

lishes wage rates for the Northwest.

The current collective bargaining agreement between the

union, which is the exclusive representative for the class

which includes all plaintiffs, does not provide for Sunday

premium pay for Bonneville’s hourly employees. Agreements

have heen negotiated each year since the enact ment of Section

405(f) of the Federal Salary and Fringe Benefits Act of 1966

(80 Stat. 288) (now codified as 5 U.S.C. § 5544(a) (1966)),

establishing the Sunday premium. The benefit which plain-

tiffs claim has never been included in any negotiated agree-

ment. Tt was specifically requested by the union during the

1967 annual contract negotiations between Bonneville and

the union and rejected by Bonneville on the ground that the

current wage survey indicated it was not a prevailing rate.

Since that. date the union has not requested this Sunday pre-

mium pay in its annual negotiations.

During all of the period of employment set forth in plain-

tiffs’ petition, plaintiffs were paid on the basis of a 40-hour

week at hourly rates of pay. None of the plaintiffs received

any premium compensation for Sunday work as that term is

used in the Federal Salary and Fringe Benefits Act of 1966,

enacted July 18, 1966.

The normal schedule of those plaintiffs who work rotat-

ing shifts in positions which are manned around the clock,

seven days per week, requires that each work approximately

29 Sundays per year from July 18, 1966.

The normal schedule for those plaintitfs who oceupy posi-

tions at 24-hour call stations requires that each work approx-

imately 26 Sundays per year from July 18, 1966,

Plaintiffs originally filed their petition alleging that Public

Law 89-504, 5 U.S.C. $ 5544(a) (1966), required payment to

them by Bonneville of 25 per cent premium pay for Sunday

work. By amendment dated December 6, 1972, plaintiffs fur-

ther allege that if 5 U.S.C. $5544(a) is not applicable to

them, they are nonetheless entitled to 25 per cent Sunday

preminm pay “because the prevailing rates in the industry

provide for premium pay for Sunday work” and Bonneville

is required to fix the compensation for plaintiffs in accordance

with the prevailing rates in the electrical utility industry.

Defendant’s answer, denying plaintiffs’ allegations, was filed

on August 23, 1972. Plaintiffs’ motion for summary judgment

was filed March 27, 1974. Defendant's cross motion for sum-

mary judgment was filed September 10, 1974.

We shall now turn to the first and primary issue in this

ease: Whether plaintiffs, who are wage hoard employees of

Bonneville, are entitled to 25 per cent preminm pay for work-

ing on Sunday pursuant to Publie Law 89-504. 5 TLS.C,

$ 5544 (a), enacted July 1S, 1966.

In order to fully understand the statutory construction

problem presented in this case, it is necessary to have a clear

picture of the creation of Bonneville in 1937 and of the events

Which took place thereafter until the passage of the Act of

October 23, 1915 (hereinafter ihe 1945 Act). These facts are

well summarized in the defendant's brief and since plaintiffs

do not dispnte these basic facts. we shall quote from Defend-

ant’s Cross Motion for Summary Judgment, at pp. 9a- 14

( foot notes and emphasis omitted) : .

Bonneville’s organie legislation. enacted in 1937

orginally provided :

“See. 10. The Administrator, the Seeretarvy Of War,

and the Federal Power Commission. respectively. shall

appoint such attorneys, engineers, and other experts as

may be necessary for carrying out the direction [sie:

functions} entrusted to them under the [sie: this] Aet,

Without regard to the provisions of the civil service laws

and shall fix the compensation of each of such attorneys,

engineers and other experts at not to exceed $7.00 per

annum: and they may, subject to the civil service laws,

appoint such other officers and employees as may be

necessary to carry out such functions and fix their

salaries in accordance with the Classification Act of 1923.

as amended. (59 Stat. 547)” [sie: 50 Stat. 751, 736]

During the initial years of operation, Bonneville ex-

perienced problems in recruiting and retaining the

skilled and semi-skilled workmen essential for operation

of its complex facilities. Bonneville was a utility com-

peting directly with industry and private utilities in

the Pacifie Northwest for these workmen. It found it

could not compete.

Private utilities paid time and one-half for overtime.

Bonneville could not. Private utilities paid a minimum of

two hours pay when an employee was called back because

of an emergency. Bonneville could not. Private industry

paid ‘a night differential. Bonneville could not. Private

utilities which did not pay a night differential effectively

increased pay by allowing eight hours pay for seven and

one-half hours’ work. Bonneville could not. Private util-

ities paid for time its employees spent in travel required

by system emergencies. Bonneville could not. Bonneville

could pay only for time actually worked and time spent in

traveling was. and generally still is. not considered work

under the rules applicable to Government employees.

Private utilities could pay daily overtime and paid time

and one-half for all Sunday overtime. Bonneville could

not. Under temporary war powers Bonneville met this

practice. But this authority was temporary and upon ex-

ond eo the controlling law was Section 23 of the 1934

ndependent Offices Appropriation Act, Act of March 28,

1934. 48 Stat. 509, 522. (then codified as 5 U.S.C. § 67%c)

(See 20 Comp. Gen. 392 (1940)). Under that statutory

provision payment of overtime for wage board employees

was limited to those hours worked in excess of 40 hours

r week.

In 1945, to ameliorate many of its problems, Bonne-

ville went to Congress seeking extraordinary authority

to enable it to successfully compete within the utility

industry in the Pacific Northwest. It was successful in

having H.R. 2690 enacted as Public Law No. 201. 79th

Cong., Ist Sess. (1945).? This legislation was justified in

1 Said act as pertinent herein reads ns follows:

“Re it enacted by the Senate and House of Representatives of the United

States of America in Congress assembled, That section 2 (f) of the Act of

Avecust 20. 1937 (50 Stat. 731), as amended by the Act of March 6, 1940 (54

Stat. 47), is bereby amended to read as follows:

= before the House of Representatives by the then

eneral Counsel for Bonneville. He testified :

“The Bonneville Power Administration is not carrying

out a government regulatory program. It is engaged ina

Jarge scale business enterprise * * *,

“Ordinary Government procedure was not designed for

use in a business operation of that nature and magnitude,

and it has hampered the Administrator to an unwar-

ranted extent. H.R. 2690 and H.R. 2693 are based on the

premise that Bonneville is a regional and business

agency, and they will permit it to operate in a more busi-

nesslike manner * * *,

“Because of the nature of the business in which the Ad-

ministrator is engaged, his activities are constantly being

compared with those of private utilities and private con-

tractors. With res: ct to labor practices he suffers by

comparison. The Aaministration operates and maintains

electric facilities and occasionally undertakes construe-

tion work on force xecount. He should be able to follow

the same, or comparable, Jabor practices as do private

utilities and contractors in the same work. H.R. Rep. No.

2690, T9th Cong., Ist Sess. 3 (1945). ;

(Similar comments appear in the Senate and House Re-

ports on TLR. 2690 (S. Rep. No. 469, 79th Cong., Ist Sess.

(1945): IL. Rep. No. 777, 79th Cong., Ist Sess. (1945) ).

Congress recognized the unique status of Bonneville

and by the 1945 amendments Bonneville obtained the

extraordinary authority required. The Administrator

was granted the right to modify, adjust, cancel or com-

promise contracts or agreements he entered under the

Bonneville Act. He could settle, compromise or pay

claims against Bonneville arising out of the acts of em-

“SEC. 5. Section 2 (a) of the sald Act 1s hereby amended by striking the

language Inserted by section 1 of the Act of March 6, 1940 (54 Stat. 47); and

aes 10 of the said Act Is hereby amended to read as follows:

* * . 6

“*(b) The Administrator, the Secretary of War, nnd the Federal Power

Commission, respectively, are authorized to appoint, subject to the civil-service

laws, such officers and employees as may he necessary to carry out the pur-

Poses of this Act, the appointment of whom 1s not otherwise provided for, and

to fix their compensation in accordance with the Classification Act of 1923,

as amended, The Administrator may employ laborers, mechanics, and workmen

in connection with construction work or the operation and maintenance of

electrical facilities (hereinafter called ‘laborers, mechanics, and workmen’),

subject to the civil-service laws, and fix their compensation without regard to

the Classification Act of 1923, as amended, and any other laws, rules, or regula-

tions reluting to the payment of employees of the United States except the Act

of May 29, 1930 (46 Stat. 468), as amended, to the extent that It otherwise {a

applicable.’ * * ¢

ployces. He could accept voluntary services. And, for the

pur i. of this action. the most significant change, he

could: *,

“* * * [TE |mploy laborers, mechanics, and workmen in

connection with construction work or the operation and

maintenance of clectrical facilities (hereinafter called

‘laborers, mechanies and workmen’) subject to the civil

service laws, and fix their compensation without regard

to the Classification Act of 1923, as amended, and any

other laws, rules, or regulations relating to the payment

of employees of the United States, except the Act of

May 29, 1930 (46 Stat. 468), as amended, to the extent

that it otherwise isapplicable * * *.”

Since 1945 Bonneville has thus had the latitude and au-

thority necessary to provide fair and equitable compen-

sation for its hourly employees, including plaintiffs, at

rates consistent with those paid in the utility area it

served even if this should be inconsistent with pay prac-

tices for other federal employees. This authority was

granted by Congress with the full realization that Bonne-

ville sought to deviate substantially from the usual pay

a of the Federal Government. It was special

egislation enacted to enable Bonneville to function as

and compete for employees with private electrical util-

ities in the Pacific Northwest.

described in published standards, as provided for in title

IV, that the resulting position-classification system can

be used in all phases of personnel administration.

TITLE II—COVERAGE AND EXEMPTIONS

SEC. 201. (a) For the purposes of this Act, the term

“department” includes (1) the executive departments,

(2) the independent establishments and agencies in the

executive branch, including corporations wholly owned

by the United States, (5) the Administrative Office of

the United States Courts, (4) the Library of Congress,

(5) the Botanie Garden, (6) the Government Printing

Office, (7) the General Accounting Office. (8) the Office

of the Architect of the Capitol. and (9) the municipal

government of the District of Columbia.

(b) Subject to the exemptions specified in section 202,

and except as provided in sections 204 and 205, this Act

shall apply to all civilian positions, officers, and em-

ployees in or under the departments.

SEC. 202. This Act (except tithe NIL) shall not apply

to---

« a 4 as %:

(7) employees in recognized trades or crafts, or other

skilled mechanical crafts, or in unskilled, semiskilled, or

skilled manual-labor occupations * * * whose compen-

sation shall be fixed and adjusted from time to time

as nearly as is consistent with the public interest in

accordance with prevailing rates:

We now leave the 1945 Act and discuss an act of Congress

passed in 1949 known as the Classification Act of 1949 (Act

of October 28. 1949, 63 Stat. 954). The act as material herein

provides as follows:

TITLE I—DECLARATION OF POLICY

SEC. 101. It is the purpose of this Act to provide a

plan for classification of positions and for rates of basic

compensation whereby——-

(1) in determining the rate of basie compensation

which an officer or emplovee shall reesive. (.A) the prin-

ciple of equal pay for substantially equal work shal] be

* 7 * a: *

Section 1201 of the said Classification Act of 1949 further

states:

All laws or parts of laws inconsistent with this Act

are hereby repealed fo the extent of such Mnicousistency.

| Minphasis supplied. |

Relying on said section 1201, plaintiffs’ main thrust in this

substan } ease is (we quote specifically from Plaintiffs’ Brief in Sup-

ion oad oe es eee ee ele cee te port of VPlaintitts’ Motion for Stuamary Judement, at

proportion to substantial differences in the difficulty, Pp. 4-35) :

responsibility. and qualification requirements of the work That portion of the Act of October 25, 1945. which

performed and to the contributions of officers and em-

ployees to efficiency and economy in the service; and

(2) individual positions shall, in accordance with their

duties, responsibilities, and qualification requirements,

be so grouped and identified by classes and grades, as

defined in section 391, and the various classes shall be so

authorized the Administrator of Bonneville to fix wages

of “laborers, mechanics, and workmen * * * without

regard to the Classification Act of 1925, as amended, and

any other laws, rules or regulations relating to the pay-

ment of employees of the United States” is as inconsist-

ent with the Clus<ifieation Act and the wage board ex-

577-268—75——2

‘Wa

emplion clause in section 202(7) as the special authority

of the Alaska Railroad or the Virgin Islands Corpo-

ration. The Congress did not see fit to exclude Bonne;

ville as an ageney, and therefore, its white collar em-

plovees were automatically subject to the Classification

Aet (which they are) and its wage board employees fell

into the gener ral exemption clause in section 202(7).

Being cave “ma pte d by section 202(7) automatically sub-

jects: these waae hoard employces to the provisions of

section 5544 (a) requiring that regulary Sunday duty be

paid for at premium rates. {Emphasis plaintiffs’. ]

Plaintills’ reference to section S5t4(a) is 5 UIS.C. § 5544(a)

(1966) ..which was amended by section 405(f) of the Act of

July 18.1966 (80 Stat. 298). The amendment was as follows:

The first paragraph of section 23 of the Independent

Offices Appropriation Net. 1955. as amended (5 U.S.C

G7T3eY. is amended by inserting iminediately: hefore the

period at the end thereof the following: “: Provided

further, That employees subject to this section whose

regular work schedule includes an eight-hour period of

service any part of which is within the period commene-

ing at midmieht Saturday and ending at midnight Sun-

day shall be paid extra compensation at the rate of

25 per centum of his hourly rate of basic compensation

for each hour of wor k performed during that eight-hoir

period of service”.

Defendant’s reply to plaintitls’ foregoing thrust is as follows

(quoting from Defendant's Reply to Plaintiffs’ Response to

Defendant’s Cross Motion for Sununary Judgment, at p. 7):

Plaintiffs’ claim the authority given to Bonneville in

1945 by the Congress is inconsistent with that set forth

in Section 202(7) of the 1949 Classification Act (PItfs’

Reply Br.. p. 13). Plaintiffs. however, cite no provision

of the 1949 Classification Aet which is inconsistent w ith

the extraordinary authority granted to Bonneville in

1915. All Section 202(7) of the 1949 Classification Act

— is exclude skilled and semi-skilled warkmen whose

rages are fixed in accordance with prevailing rates con-

i te with the public interest. Nothing more. Where is

the inconsistency? Plaintiffs were excluded from the

Classification Act of 1923. and as a result of Section

202(7) were specifically exempted from the Classification

Act of 1949. [| Poot note omitted. ]

Plaintilfs’ counsel well argued the case before this court

but when questioned specifically as to what is the incon-

‘ia

sistency, his reply was not satisfactory. Plaintiff briefs do

not specifically point to any inconsistency.

We agree with defendant for reasons hereinafter stated

and hold that there is no inconsistency. Therefore, the 1945

law (Section 10(b) of the Bonneville Project Act) was not

repealed and as amended by the Classification Act of 1949,

reads as follows:

** * The Administrator may employ laborers, me-

chanics and workmen in connection with construction

work or the operation and maintenance of electrical

facilities * * “subject to the civil service laws. and fix

their compensation without regard to the Classification

Act of DOE! and any other haves, rules. ov ve qulations

velating to the pay vt of employoos of the United

States, * | Manphasis supplied. |

We emphasize the portion which reads “without regard to

** any other laws, vides, ov regulations relating to the pay-

micut of employes of the Vuited States” because the 1966 act

which provided the 25 per cent for extra work on Sundays is

a law relating to the payment of employees of the United

States, Therefore, the result is plaintiffs’ es may be fixed

without regard to the said 1966 aet.

Plaintiffs’ first and strongest argument in their opening

brief was to point to the 1958 text of section S5zi(b) of title

16, United States Code, and the historical note following see-

tion 83521." The 1958 text as noted in the historical note omits:

2The 1945 Act originally read “Classification Act of 1923" but Section 1106

of the 1949 Classifiention Act provided that references to the Classification

Act of 1925 should henceforth be considered to mean the “Classification Act

of 1949."

s°The Administrater. the Secretary of the Army, and the Federal Power

Commission, respectiveiy, are authorized to appoint, subject te the civil serviee

laws. such officers and employees as may be necessary to carry out the purposes

of this chapter, the appointment of whom I< not otherwise provided for, and

to fix their compensation in accordance with the Classification Aet of 1949.

The Administrator may employ laborers, mechantes, and workmen In connec-

tien with construction work or the operation and maintenance of electrical

facilities (heretnafter called ‘laborers, mechanies, and workmen’). subject to

the civil-serviee laws. The Administrator is further authorized to employ

physiclans, under agreement and without regard to civil-service laws or regula-

tlons, to make physleal examinations of employees or prospective employees

who are or may become laborers, mechantes, and workmen. The Administrator,

the Seeretary of the Army. and the Federal Power Commission, respectively,

are alse anthorized to appoint. without regard to the civil-serviee laws, such

experts as may be neeessary for carrying ont the funetions entrusted to them

under this chapter.”

(Continued)

12a

Provisions of subsec. (b) which authorized the Ad-

ministrator to fix the compensation of laborers, mechan-

ies and workmen without regard to the civil-service laws

and any other laws, rules, or regulations relating to the

payment of employ ves of the United States * * *.

Since 16 U.S.C. § 832 and subparagraphs (a) to (1) there-

under, listed as Chapter 12, specifically refer to the Bonne-

ville Project only, plaintiffs naturally were led to believe that

said section 832i(b) as codified and recited in footnote 3 was

the present amended status of the statute. But crrors do occur

in codification and where there is a conflict bet ween the codi-

fication and the Statutes at Large, the Statutes at Large must

prevail.t We held in American Export Lines, Ine. v. United

States, 153 Ct. Cl. 201, 207, 290 F. 2d 925. 929 (1961) :

Tt ts well settled that “the Code cannot prevail over the

Statutes at Large when the two are inconsistent.” * * *

So the fact that 16 T.S.C. § S221 (b) as it Is now codified elim-

inated the clause “fix the compensation of laborers. mechan-

ies and workmen without regard to the civil-service laws and

any other laws, rules. or regulations relating to the payment

(Continued)

The historical note following section S321 states:

“Keferencea in Tert. The civil-scrviee laws, referred to In the text. are clas-

sified generally to Title 5, Executive Departments and Goverument Officers and

Employees.

“The Classification Act of 1949. referred to In the text. Is classified to

chapter 21 of Title 5

. -_ . . +

“Codification. The Department of War was desirnated the Department of

the Army and the title of the Secretary of War was changed to Secretary of

the Army by section 205(a) of act July 26, 1947, ch. 345, title II, G61 Stat. 501.

Section 205(a) of act July 26, 1947. was repealed by section 52 of act Ang 10,

1956, ch. 1041. TOA Stat. 641. Section 1 of act Aug. 10. 1956. enacted “Title 19,

Armed Forces’ which in sections 3011 38013 continued the military Department

of the Army under the administrative supervision of a Seeretary of the Army.

“Trovistons of subsec. (b) which authorized the Administrator to fix the

compensation of laborers, mechanics and workmen without regard to the civil-

serviee laws and any other laws, rules. or regulations relating to the payment

of employees of the United States and which authorized the Administrator, the

Secretary of the Army and the Federal Power Commission to fix the compensa-

tion of experts without regard to the Classification Act of 1949. were omitted

since the positions referred to are now in the classified civil service and subject

to the applicable compensation schedules

*It has been held that even codificntion Into positive law will not give the

code precedence where there is a confllet between the codifierntion and the

Statutes at Large. United Statca v. Welden, 377 U.S. 95 (1964) (n 4): Stephan

v United Statea, 319 U.S. 422 (194%) : Warner v. Goltra, 29% U.S. 155 (1934) :

Nashville Milk Co. v. oi ora Co., 238 F. 2d 86 (7th Cir. 1956), aff'd S55

U.S. 372 (1958): Rower’a, Ine. v. United States, 265 F. 24 615 (2rd Cir. 1959).

The codification !s only prima Pie evidence of the law. 1 U.S.C. § 2040 (1970).

13a

of employees of the United States” is not controlling. The

basic question still is whether the 1945 Act is inconsistent

with the Classification Act of 1949.

Plaintiffs argue that there was a repeal by implication and

give varioys_veasons for the implication. As a general rule,

’ Aavorved. Unire veal Interpre-

tive Shuttle Corp. v. Washington Metropolitan Area Transit

Comm’ n, 395 U.S. 186 (1968) ; Jones v. Alfred HI. Mayer Co,

2 U.S. 409 (1968); Uusted States vo Zacks. 375 US. 59

(1963) ; Silver v. New York Stockh Lachange, 575 US. 3Al

(1963) ; Federal Trade Comm’ny. A.P.W. Paper Co., 328 U.S.

193 (1916); Posadas y. National City Bauk, 296 U.S. 497

(1936) ; Aly v. Velde, 451 F.2d 1130 (4th Cir. 1971).

Within the past six menting the Court in we npn Read Re-

organization Act Cases, 43 U.S.LW. 4031 (U.S. Dee. 16,

1974). has stated at pp. 4040-41 :

In sum, we eannot find that the legislative history

supports the argument that the Rail Aet should be con-

strued to withdraw the Tucker Act remedy. The most

that can be said is that the Act is ambiguous on the ques-

tion. In that cireumstanee. applicable canons of statutory

construction require us to conclude that the Rail Act is

not to be read to withdraw the remedy under the Tucker

Act.

One canon of construction is that repeals by impliea-

_ are disfavored. See. ¢.g.. Mercantile National Rank

° . Langdean, 371 SS. le. oe (1963); 2 /° nite ad Nilates v.

phew. Co. SOS ULS. Ss. 19S. 199 (1939): Amwell vy.

lnited States, 384 U.S. 158. 165-166 (1966). Rather,

since the Tucker Act and the Rail Act are “capable of co-

existence, it is the duty of the courts, & vai a clearly ex-

pressed congressional intention to the contrary, to regard

each as effective.” Morton v. Mancari. [417] US. [555],

[551] (1974). Moreover, the Rail Act is the later of the

two statutes and we agree with the Special Court that

“A new statute will not be read as wholly or even par-

tially amending : a prior one unless there exists a ‘positive

repugnaney bet ween the provisions of the new and those

of the old that eannot be reconciled. * * * This principle

rests on a sound foundation. Presumi: thly Congress had

given serious thought to the earlier statute, “here the

broadly based jurisdiction of the Court of Claims. Before

holding that the result of the earlier consideration has

been repealed or qualified, it is reasonable for a court to

14a

insist on the legislature's using language showing that it

has made a considered determination to that end. * * *”

[384] F. Supp..at [945]. :

The Court in Morton v. Mancari, supra at 550-51, also

regarding repeal by implication stated :

This is a prototypical case where an adjudication of

repeal by implication i- not appropriate. The preference

is a longstanding, important component of the Govern-

ment’. Indian program. The anti-discrimination provi-

sion, aimed at alleviating minority discrimination in

employment. obviously is designed to deal with an en-

tirely different and, indeed, opposite problem. Any per-

ceived conflict is thus more apparent than real,

In the absence of some aflirmative showing of an in-

tention to repeal. the only permissible justification for

a repeal by implication is when the earher and later

statutes are irreconcilable. Georgia v. Pennsylrania 2.

Co. B24 US. 499. 456-457 (1945). Clearly. this is not

the case here. * * *

ak x * x *

The courts are not at liberty to pick and choose among

congressional enactments. and when two statutes are

capable of co-existence. it is the duty of the courts,

absent a clearly expressed congressional intention to the

contrary, to regard each as effective. “When there are

two acts upon the same subject. the rule is to give effect

to both if possible. * * * The intention of the legisla-

ture to repeal ‘must be clear and manifest.” (n/ted

States v. Borden Co. 208 US. 188.198 (1959). Tn light of

the factors indicating no repeal, we simply eannot con-

clude that Congress consciously abandoned its policy of

furthering Indian self-government when it passed the

1972 amendments.

This court in Casman v. United Stotes, 145 Ct. Cl. 16, 20,

1S] F. Supp. 404,406 (1958). stated :

It is a familiar rule that repeal by implication is

found only by reason of necessity, and repeals by impli-

cation are consistently frowned upon, * * *

We mu-t also remember that it is a recognized rule that

special statutes will prevail over general statutes without

regard tothe priority of enactment. General Dynamics Corp.

v. Vutted States, 165 Ct. Cl 219, 324 PF. 2d 971 (1965):

15a

General Motors Corp. v. United States, 155 Ct. Cl. 267, 292

I. 2d 502 (1961); Panama Canal Co. vy. Anderson, 312 F, 2d

YS (Sth Cir. 1963). cert. denicd BVA US, S52; Fourco Glass

Co. Vv. Transmirva Products Corp. 50 Us. 222 (19957);

Bulova Wateh Co. vy. United States, 365 U.S. 755 (1961) ;

United States v. Nix, 189 U.S. 199 (1903). In Morton v.

Mancari, supra at 550-51, the Court clearly stated the rule:

Furthermore, the Indian preference statute is a specifie

provision applying to a very specifie situation. The 1972

Act, on the other hand, is of general application. Where

there is no clear intention otherwise, « specific statute

will not be controlled ov wiallified by a qenceval ane, ve-

gardless of the priavity of enactment, See, c.g. Bulova

Watch Cov. United Slates, 305 Us. TH5. TAS (1961):

Podgers v. United States, 185 Us. 83. ST-Sd (1902).

[ Empnasis supplied. ]

The legislative history of the 1145 amendments to the

Bonneville Project Act demonstrates Bonneville was given

special authority in matters of employees” pay not subject

to the 1925 Classification Act. As the 1949 Classification Act

was only a substitute for the earlier act and did not spe-

cifically repeal the 1914 special legislation amending the

Bonneville Project Act, Bonneville’s employees are still ex-

cepted from that act by Seetion 10(b) of the Bonneville

Project Act. As above stated. special statutes will prevail over

general ones without regard to priority of enactment.

During the argument and in their briefs, plaintiffs relied

very much on a 1959 decision of the Comptroller General,

reported in 58 Comp. Gen. 538 (1959), which stated at 542

that aborers and mechanics of Bonneville:

* * * are excepted from the Classification Act of 1949

by reason of paragraph (7) of section 202 of that act and

not by the provisions of section 10 of the act of Au-

gust 20, 1937, as amended, 16 U.S.C. 8321(b) * * *,

The question involved in that decision was whether Publie

Law 85-872 (now 5 U.S.C. § 5345 (1966) ), which required

wage determinations made by wage boards to be implemented

Within 45 days, was applicable to inereases in compensation

which were granted as a result of collective bargaining under

l6a

labor management agreements entered into by the following

agencies in the Department of the Interior:

Alaska Railroad

Bonneville Power Administration

Southwestern Power Administration

Bureau of Mines

Bureau of Reclamation

The Comptroller General solicited the opinion of the Civil

Service Commission (hereinafter CSC) which, under Section

203 ot the Classification Act of 1949 (5 U.S.C. § 5103

(1966)), was “authorized and directed to determine finally

the applicability of Sections 201 and 202” of the act. The

CSC answered as shown below.’ Plaintiffs argue that the

CSC ruled that Section 202(7) of the Classification Act of

1949 is the authority for fixing wage rates for Bonneville

waye board employees. We do not agree. We interpret the

CSC’s views to mean that under the circumstances in which

it arose, Bonneville employees were excluded from the cover-

age of the 1949 Classification Act by Section 202(7) of that

act. That is all the Comptroller General ruled. The whole

superseding argument of the CSC circulates around an ob-

viously misguided interpretation of Section 1106(a) of the

Cla-sification Act of 1949. Section 1106(a) reads as follows:

(a) Whenever reference is made in any other law to

the Classification Act of 1923, as amended, such refer-

ence shall be held and considered to mean this Act.

of the Bonneville Project Act as amended, Section 5b of the Act of October 2%,

1945] was superseded by the Classification Act of 1949.

“Section 201(b) of the Classification Act of 1949 provides that ‘Subject to

the exemptions specified in section 202. and except as provided In sections 204

and 205, this Act shall apply to all civilian positions, officers, and employees In

or under the departments.’ Attention Is also invited to the provisions of section

1106 of the Act:

*‘(n2) Whenever reference is made.in any other law to the Classification Act

of 1923. as amended, such reference shall be held and considered to mean this

Act. * © ®

° ° ° _¢ o

“Thus all exceptions from the Classification Act of 1923 were superseded by

the 1949 Act, and no exceptions from the 1949 Act were made unless they were

o 6 eo e e

“Accordingly, it is our view that laborers and mechanics of the Bonneville

Power Administration are excepted from the Classification Act of 1949 by

; | 17a

The CSC interprets this simple section as superseding all

exceptions to the Classification Act of 1923. The CSC con-

cluded that since references to the Classification Act of

19235 mean the Classification Act of 1949, any exceptions

referring to the 1923 act would only be exceptions to the

1949 act if listed as exceptions in that act. This is an un-

reasonable reading of Section 1106(a). Our interpretation

is that all Section 1106(a) is doing is substituting the “Classi-

fication Act of 1949" for the “Classification Act of 19257

wherever reference to the “Classification Act of 19253" appears

in any other statute. (See footnote 2.) This is the only

reasonable interpretation of Section 1106(a). The CSC inter-

pretation is misguided. It is significant that the misguided

language of the CSC that the 1915 Act of Bonneville was

“superseded” by the Classification Act of 1949 was not in-

corporated into the Comptroller General’s opinion. Even

though disregarded by the Comptroller General, plaintiffs

urge the misguided “superseding™ language of the CSC as

controlling in this case. We cannot agvee with plaintiffs.

The dissent expresses a view that Section 203 of the Clas-i-

fication Act of 149 foreclo-es this court’s superseding the

CSC's interpretation. It is our view that the determination of

whether a subsequent statute has. by implication, repealed

a prior one is for the courts. District of Columbia vy. Intton,

145 U.S. 18, 27-28 (1892); United States v. Claflin, 97 US.

O46, 49 (1878). Furthermore, in Scroggins v. United States,

1S4 Ct. Cl. 530, 533-534, 597 FP. 2d 295, 297. cert. denied, 593

U.S. 952 (1968). this court in dealing with language similar

to the language used in the case in a parallel situation

involving the CSC stated as follows:

The Retirement Act provides (5 U.S.C. $ S347 (1964

Supp. I1), formerly 5 U.S.C. § 2266) that “the Commis-

sion shall determine questions of disability and depend-

ency” and its decisions “concerning these matters are

final and conclusive and are not subject to review.” This

is a special and unusual restriction on judicial examina-

tion. and under it courts are not as free to review Com-

mission retirement decisions as they would be if the

“finality” clause were not there. We have said that. at

best, a court can set aside the Conimission’s determina-

tion “only were there has been a substantial departure

18a

from important procedural rights, @ misconstruction of

the governing legislation, or some like error ‘going to the

heart of the administrative determination.’ ” Gaines v.

United States, 158 Ct. Cl. 497, 502, cert. denied, 371 U.S.

936 (1962). * * * [Emphasis supplied. ]

In the present case the CSC determination was clearly “a

misconstruction of the governing legislation.”

Defendant submits two additional decisions of the Comp-

troller General:

(1) The St. Lawrence Seaway Development Corpo-

ration decision (46 Comp. Gen. 176 (1966) ) holding that

the Seaway's practice of paying a 50 per cent premium

for Sunday work had to be discontinued after the 1966

25 per cent Sunday premium law came into effect.

2) The Veterans Administration decision of May 1,

1972. identified as B-175452, concerning a myer rela-

tive to call-back overtime. The Comptroller held that

since 5 U.S.C. $5542 (1966) provides that “unsched-

uled overtime work performed by an employee on a day

when work was not scheduled for him, or for which he

is required to return to his place of employment. is

deemed at least 2 hours in duration: * * *”, a proposal

by the American Federation of Government Employees

for 4 hours overtime must be rejected as being not legally

acceptable. The ruling was that “2 hours is therefore the

maximum that may be paid in the absence of work

beyond such period.”

These two opinions illustrate exactly why Bonneville was

given authority to fix the compensation of its “laborers,

mechanics, and workmen * * * without regard to the Classi-

fication Act of 1923 [later 1949], as amended, and any other

laws, rules or regulations relating to the payment of em-

ployees of the United States.” At the time the 1945 Act was

passed, the primary purpose was to give Bonneville a free

hand in competing with the private utility companies in the

Northwest region. This was especially so relative to matters

relating to holiday pay, Sunday pay. overtime pay, call-back

pay and other similar pay matters. This is clearly brought

out in the hearings on H.R. 2690 and H.R. 2693, Bills to

Amend the Bonneville Project Act (H.R. 2690 was passed

October 23, 1945). C. Girard Davidson, General Counsel of

—

aden Ae

19a

Bonneville, testified as shown below.* A carsful reading of

the quoted testimony strengthens the defendant’s argument

that the 1945 Act was not only sensible but its purpose, to

enable Bonneville to be in competition with private utilities

in its labor-management problems, must be carried out.

One of defendant’s arguments which plaintiffs have not

been able to answer is that plaintiffs’ position that there was

**“Ordinary Government procedure was not designed for use in a business

operation of that nature and magnitude, and it has at times bampered the

Administrator to an unwarranted extent. H. R. 2690 and H. R. 269% are based

on the premise that Bonneville is a regional and business agency and they

wonld permit it to operate in a more business Ike manner.

> s o . @

“Most of the labor practices with which tie Administrator cannot at present

conform, and which put bim in an untortunate position {mn the present labor

market. relate directly or indirectly to the compensation received by employees.

. . 2 . .

“1. Holiday pay: Bonneville can pay only straight time on holidays whereas

private employers pay thelr employees time and one half for the same work. The

difficulty is accentuated by the fact that Bouneville employees receive straight

time on holidays within their regular tour of duty whether or not they work.

“2. Daily overtime: Bonneville can pay overtime only after 40 hours have

bern worked in one week. Uuder vormal conditions it cannot pay overtime for

more than 8 hours work in 1 day as do private utilities and contractors. Under

the Government's broad war powers Bonneville is able to pay overtime for

hours worked tn excess of eight per day. but that authority, of course, ts

temporary.

“3. Emergency and call work: When an employee ts called to work because

of an emergency such ax the breaking of a Hne, private utilities pay for a

minimum of 2 bours regardless of whether an employee works a lesser time.

Similar minimum payments are made for longer periods. Bonneville is unable

to pay its employees on the same basis.

“4. Night differential: Bonneville cannot pay higher rates for night shifts

as ix done by some private employers.

“S. Multiple shifts: Other private employers and most private utilities do

not pay a higher rate for night shifts, but accomplish night differential by

allowing 8S hours pay for 7% hours’ work on the late shifts. Bonneville ts

unable to make such adjustments.

“6G. Sunday overtime: Under the 40-hour statute Bonneviile can pay over-

time on Sundays only for time actually worked, not for travel. If an emer-

geucy develops at a distance from an employee's station, the employee can be

pald only straight time while he is traveling from his station to the point of

emergency, and then only if the travel occurs during his regular tour of duty.

He may be pald time and one-half for the time he actually works at the point

of emergency. Private ulflities pay time and one-half for travel time as well

as actual working time under similar conditions.

“Differences and discriminations such as those outlined naturally breed dis-

sati.faction and contribute to unsatisfactory labor relations. It is but a step

further to active opposition by employees and labor, generally, to the activities

and programs of the administration. The Adwintistrator ts engaged in a bus!-

ness enterprise, and he should be able to conform to labor practices which are

customary in thal business. The language suggested for the committee's con-

sileration would permit him to do so.” [Before House Comm. ou Rivers &

Harbors, 79th Cong., Ist Sess., at pp. 9-10.] [Emphasis supplied |

20a

an implied repeal is at direct odds with subsequent pro-

nouncements by Congress. Defendant has incorporated into

his moving brief a 70-page Report No. 192 of the Senate,

89nd Congress. 1st Session, entitled Labor-Management Re-

lations in the Bonneville Power Administration, dated

March 21, 1951. The Classification Act of 1949 was enacted

October 28. 1949. Plaintiffs claim that the act repealed Sec-

tion 10(b) of the 1945 Act. This Senate Report made only 17

months after the passage of the Classification Act of 1949,

at p. 15, recites Section 10(b) of the 145 Act:

** * The Administrator may employ laborers. me-

chanics. and workmen in connection with construction

work on the operation and maintenance of electrical

facilities (hereinafter called “laborers. mechanics. and

workmen”). subject to the civil-serviee laws. and fix their

compensation without regard to the Classification Act

of 1923. as amended. and any other laws. rules, or regula-

tions relating to the payment of employees of the United

States * * *,

And with relation to said 1945 Act, the Report states as

follows :

Part of the legislation just cited was brought into

being in 1945. when the Bonneville Project Act was

amended through Public Law 201, Seventy-ninth Con-

gress. chapter 433. first session, when BPA found itself

confronted with dissatisfaction on the part of its hourly

and trade emplovees. The act creating BPA proved in-

adequate in meeting conditions confronting it. Tt did not

make for good relations bet ween labor and management.

The 1945 amendments and other sections as dealt with

in section V of this report. constituted an effort by

Bonneville to correct a bad situation then in existence.

[At )p- 15.]

The Report was laudatory of Bonneville’s labor relations pro-

gram and it specially noted the 1945 changes. In the same

session of the 8st Congress which passed the Classification

Act of 1949. the Senate also passed Senate Resolution 140

which requested the above-mentioned Report. The Report is

a report of the Committee on Labor and Public Welfare of

the United States Senate. Since the Report is lengthy and

required field studies, its preparation and completion ran into

the 82nd Congress. When the Report was completed and is-

2la

sued on March 21, 1951, during the $2nd Congress, 10 out

of the then 13 members of the Committee on Labor and

Public Welfare were Senators during the 81st Congress. In

Socony Mobil Oil Co. v. United States, 153 Ct. Cl. 638, 646-

647, 287 F. 2d 910, 914 (1961), this court stated:

* * * An expression of opinion as to the meaning of

a statute, made some four years after the enactment

of the statute by the same Congressional committee which

had considered that statute at the time of its enactment,

Is an Important circumstance for consideration in inter-

preting the statute. Sioux Tribe of Indians vy. United

States, 316 U.S. 317, 3292.”

Therefore, we consider it “an important circumstance” that

the Report of the Committee did not consider Section 10(b)

of the 1945 Act repealed by the Classification Act of 1949.

We are aware of circumstances mentioned in the footnote to

the above quotation from Socony Mobil Oi) Cot This case

is unlike the eases referred to in the said footnote in that

the Report was ordered by the same Congress and session

which passed the Classification Act of 1919, and 17 months

thereafter the Report clearly treats Section 10(b) of the

145 Act as still in force. The approval of the Report by

the Senate Committee on Labor and Public Welfare of the

S2znd Congress, made up of 10 senators (out of 1) of the

SiIst Congress, is material and must not be taken lightly.

In addition to the above-mentioned Senate Report, defend-

ant calls our attention to Public Law 93-454 (October 18,

1974, 93rd Congress, 2nd Session), entitled Federal Co-

lumbia River Transmission System Act. The act permits

Bonneville to use its revenues for expanding the transmis-

sion system and for its operation and maintenance. It alse

71 United States v. United Mine Workera, 230 U.S. 258, 281 282. Is not to

the cov'rary. That case sald only that the opinions of several Senators, some

of wneom had not been members of the Senate when the legislation in question

had be»n considered, and none of whom had been members of the Committee

which “ad reported the legislation and which opinions were expressed cleven

years ifter the legisintion had been passed, could not ‘serve to change the

legislat.ve intent of Congress expressed’ when the legislation had been passed.

Similarly, Rainwater v. United Statca, 356 U.S. 590, 593, indicates only that

an interpretation by one Congress of a statute passed by another Congress

more than a half century before has ‘very little, if any, significance.’ See also

the concurring opinion of Judge Littleton {n the Uquitable Life Asaurance

Society v. United States, 149 Ct. Cl. 316, 322, cert. denied 364 U.S, 829, and

A. P. Green Export Co. v. United States, 151 Ct. Cl. 628.”

22a

authorizes the Administrator to issue revenue bonds and

sell them to the Secretary of the Treasury to help finange

construction. The bill contains a bonding limitation of $1.25

billion. Passage of this act better enables Bonneville to mect

its responsibilities under the regional Hydro-Thermal Power

Program in that it no longer has to rely upon year-to-year

funding through Congressional appropriations. Since the

act anthorizes the issuance of bonds, the: act is carefully

drawn and the legislation contains the following language:

* * * The provisions of the Government Corporation

Control Aet (21 U.S.C. 841 et seq.) shall be applicable

to the Administrator in the same manner as they are

applied to the wholly owned Government corporations

named in section 101 of sueh Act (51 U.S.C. 846), but

nothing in the proviso of section 850 of title 31, United

States Codv, shall be construcd as affecting the powers

granted in subsection (b) (17) of this section and in sce-

tions 2(f). 10(b), ai? 12(a) of the Ronneville Project

et (16 U.S.C. 832 et seq.). [Emphasis supplied. ]

We quote the above fully realizing that the 1974 act is about

25 vears after the enactment of the Classification Act of 1919

and fully aware of the passage in footnote 7. But in deciding

whether a statute has been repealed by implication, we may

consider the consequences of such repeal. Doolittle v. Bryan,

55 U.S. (14 How.) 563 (1852); Burnet v. Guggenheim, 288

U.S. 280 (1933); Baltimore & Phila. Steamboat Co. v.

Norton, 284 U.S. 408 (1932): Farmers Loan & Truat Co, v.

Minnesota, 280 U.S. 204 (1930); Clarke v. Rogers, 228 USS.

534 (1913). The Court in Dooliti7e noted that courts are espe-

cially averse to an implied repeal where a repeal may have

an effect of unsettling titles to land. We refer to Public

Law 93-454 of 1974 because it is an all-important financing

act authorizing the issuance of $1.25 billion in bonds by

Bonneville. Technicalities in land titles are similar to tech-

nicalities in the issuance of bonds. We are also averse to an

implied repeal where a basic bond issuance and authorization

act of Bonneville, authorizing issuance of bonds up to $1.2

billion, assumes by specific reference that the powers granted

in Section 10(b) of the Bonneville Project Act still exist.

We have attempted to answer all of the major arguments

by both parties. Plaintiffs have made other arguments such

23a

as limited or temporary authority under Section 10(b) of

the 1945 Act, plaintiffs are being denied equal pay for equal

work, and others. We have considered all of them but our

conclusion stated in the early part of this opinion remains

unchanged. Section 10(b) was not repealed by the Classifica-

tion Act of 1919,

In plaintiffs’ amended complaint, plaintiffs allege Sunday

premium pay “beeause the prevailing rates in the industry

provide for premium pay for Sunday work” and Bonneville

“is required under Jaw and equity to set compensation for

plaintiffs in accordance with prevailing rates in the industry.”

The affidavit of one Cosgrove C. Labarre. labor relations

oflicer for Bonneville for eight years, filed by defendant,

dated February 21, 1975, shows that a survey of pertinent

utilities in the Pacifie Northwest in 1967 showed no premium

pavinent for regularly scheduled Sunday work. A resurvey

was made as date as February, 1973; it also showed that

ho premium is paid for regularly scheduled Sunday work.

The aflidavit further states that: )

** F In the 167 contract negotiations between

Bonneville and the Columbia Power ‘Prades Council. in

which T participated directly as the primary spokes-

man for Bonneville, a contract provision requiring pay-

ment of a premium of 25 per centum for work. any

part of which was performed on Sunday was proposed

by the Council. This was rejected by Bonneville upon

the ground that such a premium was not prevailing

Within the electric utility industry within Bonneville’s

area of operations, ,

Plaintiffs have not filed any counter affidavits answering the

aflidavit of Cosgrove C. LeBarre. Plaintiffs claim based on

this alternative claim, presented by its amended complaint.

must be denied.

Defendant has filed a counterelaim in the event that the

pleintiffs should prevail here. Since the plaintiffs have not

prevailed, defendant's counterclaim is dismissed,

CONCLUSION

Haved on the reasons given in the opinion, we hereby allow

[~~ ‘ .. SD * os ; M

defendant’s cross motion for summary judgment and deny

plaintiffs’ motion for summary judgment. Plaintiffs’ anvended

24a

complaint in Leroy W. Abell, et al. v. United States, No. 261-

72. and the complaint in Jack PR. Barger, et al. v. United

States, No. 371-75, are hereby dismissed. Defendant’s con-

tingent counterclaim in both actions is also dismissed.

Davis, Judge, dissenting:

For me the erucial feature of this case is Section 203 of

the Classification Act of 1949. 63 Stat. 956, 5 U.S.C. $ 5103

(1970), which provides (as it now appears in the Code) that

“Ft ]}he Civil Service Commission shall determine finally the

applicability of section 5102 of this title [$$ 201 and 202 of

the 1949 Act] to specific positions and employees, except for

positions and employees in the Oflice of the Architect of the

Capitol” [emphasis added]. I take this to mean what it says—

that the Civil Service Commission is the final arbiter. There

is not the slightest constitutional impediment to such a provi-

sion by Congress where the substantive legislation concerns

federal employees and the Commission decides in favor of

employees’ rights. That is what the Commission has ex-

plicitly done, with respect to the very question before us, in

a case in which its view was officially requested and it had

to pass directly on the issue. The court thinks the Commis-

sion was wrong, but section 205 seems to me to foreclose our

superseding the Commission’s position in favor of the em-

ployees, at the instance of the employing ageney, even

though the problem is a legal one. This is, as T see it, the

mandate of Congress. Under the law the Bonneville Power

Administration was required to follow the Commission's

directive favoring the emplovee. All the decisions holding

that there is some sort of judicial review, despite “finality”

language comparable to that here, are cases in which thie

Commission (or other agency) decided adversely to the

emplovee,

tt ln ta, a ei

APPENDIX B

IN THE UNITED STATES COURT OF CLAIMS

261-72 LEROY W. ABELL. ETAL. )

) v. THE UNITED STATES

371-73 JACK R. BARGER, ETAL.)

Before DAVIS, Judge, Presiding, SKELTON and KASHIWA, Judges.

ORDER

These cases come before the court on the following

motions filed by plaintiffs:

1. Plaintiffs’ motion, filed August 13, 1975, pursuant

to Rules 7(d) and 151(b) for rehearing en banc.

2. Plaintiffs’ motion, filed October 21, 1975, to com-

pel the Department of Justice to cease and desist

from preventing the Civil Service Commission from

preparing and executing an affidavit on behalf of

plaintiffs.

3. Plaintiffs’ motion, filed October 21, 1975, to re-

quest this court to call upon the Civil Service

Commission to file with this court an affidavit in

support of plaintiffs’ motion for rehearing.

4. Plaintiffs’ motion, filed November 19, 1975, re-

questing this court to call upon the Civil Service

Commission, under Rule 75, to promptly file with

this court the advisory opinion the Civil Service

Commission furnished the Department of Justice

and/or the Bonneville Power Administration in

connection with plaintiffs’ rights in this case.

Upon consideration thereof, together with the re-

sponses in opposition thereto, without oral argument,

by the seven Active Judges of the court as to the

suggestion for rehearing en banc under Rule 7(d), which

suggestion is denied, and further having been so con-

sidered by the panel listed above as to the motion for

rehearing under Rule 151(b) and as to plaintiffs’ mo-

tions for call and further relief listed above.

IT IS ORDERED that plaintiffs’ said motion for

rehearing and motions for call and other relief are

denied.

BY THE COURT

/s/Oscar H. Davis

Oscar H. Davis

Judge, Presiding

APPENDIX C

UNITED STATES CIVIL SERVICE COMMISSION

WASHINGTON 25, D.C.

January 16, 1959

Mr. A. A. Peter

Assistant General Counsel

United States General Accounting Office

Washington 25, D.C.

Dear Mr. Peter:

This refers to your letter of December 19, 1958

(B-138063) asking whether laborers and mechanics in

certain agencies of the Department of the Interior fall

within the exception to the Classification Act of 1949,

contained in paragraph (7) of section 202 of that act.

The Department of the Interior has requested your

decision concerning the operation of Public Law 85-872

relating to the effective dates of increases in compensa-

tion granted to wage board employees. Public Law

85-872 applies to employees “whose compensation is

fixed *** under authority of section 202(7) of the

Classification Act of 1949 (5 U.S.C. 1082(7)) or section

7474 of title 10 of the United States Code”. The

employees concerned are laborers and mechanics of the

Bonneville Power Administration, the Southwestern

Power Administration, the Bureau of Mines, and the

Bureau of Reclamation.

You state that it might be argued that laborers and

mechanics of the Bonneville Power Administration are

excepted from the Classification Act of 1949, not by

reason of section 202(7), but rather by the provisions

of section 5b of the Act of October 23, 1945, 16

U.S.C. 832i.

Section 5b of the Act of October 23, 1945, 59 Stat.

547, reads in pertinent part:

“The Administrator may employ laborers, me-

chanics, and workmen in connection with con-

struction work or the operation and maintenance

of electrical facilities * * * and fix their compensa-

tion without regard to the Classification Act of

1923, as amended, and any other laws, rules, or

regulations relating to the payment of employees

of the United States except the act of May 29,

lili

The Commission believes that this provision was super-

seded by the Classification Act of 1949.

Section 201(b) of the Classification Act of 1949

provides that “Subject to the exemptions specified in

section 202, and except as provided in sections 204 and

205, this Act shall apply to all civilian positions, of-

ficers, and employees in or under the departments.”

Attention is also invited to the provisions of section

1106 of the Act:

‘““(a) Whenever reference is made in any other

law to the Classification Act of 1923, as amended,

such reference shall be held and considered to

mean this Act. * * *

‘“(b) The application of this Act to any posi-

tion, officer, or employee shail not be affected by

reason of the enactment of subsection (a)”.

Thus all exceptions from the Classification Act of

1923 were superseded by the 1949 Act, and no excep-

tions from the 1949 Act were made unless they were

specified in section 202. As explained in S. Rept. No.

847 on S. 2379, 8lst Congress, p. 30:

“The general principle of Title II is to express a

comprehensive general coverage in section 201,

subject to specific exemptions in section 202.

Thus, in order for a department, or a group of

positions or employees in or under a department,

to be exempted from the bill, an express exemp-

tion must be found, either in section 202 or in

some other provision of future law.’ (emphasis

supplied)

Accordingly, it is our view that laborers and me-

chanics of the Bonneville Power Administration are ex-

cepted from the Classification Act of 1949 by reason of

section 202(7) of that act. In the absence of any other

statutory exception, laborers and mechanics employed

by the Southwestern Power Administration, the Bureau

of Reclamation, and the Bureau of Mines fall within the

exception to the Classification Act of 1949 contained

in paragraph (7) of section 202 of that act.

We believe that Congress intended Public Law 85-872

to apply to all wage board employees. However, in view

of the decision of the United States District Court for

the District of the Canal Zone in Boyd vy. The Panama

Canal Company, decided January 10, 1958, we agree

with your view that laborers and mechanics employed

by the Alaska Railroad are excluded from the Classifica-

tion Act of 1949 under section 202(14) rather than

under section 202(7).

Sincerely yours,

Harris Ellsworth

Chairman

APPENDIX D

IN THE UNITED STATES COURT

OF CLAIMS

AFFIDAVIT IN SUPPORT OF PLAINTIFFS’

MOTION FOR REHEARING

District of Columbia, ss:

I, Edward F. Willett, Jr., Law Revision Counsel, U.S.

House of Representatives, Room B-351, Raybum

H.O.B., Washington, D.C. 20515, being first duly sworn,

on oath, state that the following is a true and correct

statement based on my knowledge, information and

belief:

A. Affiant is presently the Law Revision Counsel of

the U.S. House of Representatives. Prior to the estab-

lishment of the Office of the Law Revision Counsel by

House Resolution 988, October 8, 1974, enacted into

permanent law by P.L. 93-554 (2 U.S.C. §285 et seq.,

Supplement IV, 1974), Affiant served for approxi-

mately five years, first as Assistant Law Revision

Counsel and thereafter as the Law Revision Counsel of

the House Judiciary Committee.

B. That the following discussion by Affiant is a cor-

rect and true statement of the proper interpretation of

Section 1106(a) and (b) of the Classification Act of

1949 (October 28, 1949, Ch. 782, 63 Stat. 972) and of

the manner in which that Section has been codified and

executed into both the United States Code and the

District of Columbia Code to the present time.

1. Section 1106 of the Classification Act of 1949

provided:

we +o

(a) Whenever reference is made in any other law

to the Classification Act of 1923, as amended,

such reference shall be held and considered to

mean this Act. Whenever reference is made in any

other law to a grade of the Classification Act of

1923, as amended, such reference shall be held and

considered to mean the corresponding grade shown

in section 604 of this Act.

(b) The application of this Act to any position,

officer, or employee shall not be affected by rea-

son of the enactment of subsection (a).

Originally. in the 1952 edition of the United States

Code, Section 1106(a) of the Classification Act of 1949

was executed in a purely mechanical matter by the

substitution of “Classification Act of 1949” for “Classi-

fication Act of 1923” in the text of every section of

the Code that contained a reference to the 1923 Act.

For each section in which this substitution in text was

made, Section 1106(a) of the 1949 Act was cited as a

source credit, and an “Amendment” note was set out

under the section to explain the change made by the

1949 Act.

Prior to the publication of the 1958 edition of the

United States Code, the Civil Service Commission

pointed out to the Law Revision Counsel of the House

Committee on the Judiciary that Section 1106(b) of

the Classification Act of 1949 provided that “The appli-

cation of this Act to any position, officer or employee

-shall not be affected by reason of the enactment of

subsection (a).”” The Civil Service Commission noted

that a number of sections appearing in the 1952 edition

of the Code contained erroneous substitution of “Classi-

fication Act of 1949” for “Classification Act of 1923.”

The source credit cited for those substitutions was sec-

tion 1106(a) of the 1949 Act.

The Commission advised (1) that the 1949 Act super-

seded preexisting exemptions to the 1923 Act, (2) that

it was necessary to refer to sections 201 and 202 of the

1949 Act to determine to what extent the 1949 Act

superseded preexisting law, and (3) that section 203 of

the 1949 Act gave the Commission power to make

those determinations.

Section 1106 of the 1949 Act was a technical section

appearing in Title XI, “General Provisions,” rather than

in the “Coverage and Exemptions” title, Title II of the

Act. Subsection (a) of Section 1106 was a short cut

fashioned by the draftsman to conform to the 1949

Act those references in other laws to the 1923 Act

without having to identify and specifically amend all

the laws where references to the 1923 Act appeared.

That it was not intended to provide exemptions beyond

those carried in Title II of the 1949 Act is clear from

the language of subsection (b). That language ensures

that subsection (a) would not have the effect of provid-

ing exemptions to the 1949 Act that were additive to

those contained in Title II.

2. With respect to any Jaw containing an exemption

from the 1923 Act, it is the opinion of Affiant, who

holds the office of Law Revision Counsel, formerly the

Law Revision Counsel of the House Judiciary Commit-

tee, that the substitution referred to in Section | 106(a)

is, by virtue of Section 1106(b), proper only if a

corresponding exemption can be found in Title II of

the 1949 Act. If a corresponding exemption is not

found in Title Il, then the exemption from the 1923

Act is not an exemption from the 1949 Act, and a

substitution under Section |1106(a) is not authorized. A

substitution in such a law, without a corresponding

exemption contained in Title II of the 1949 Act, would

have contravened Section 1106(b) because the substitu-

tion would have affected the application of the 1949

Act solely by reason of the substitution.

Support for this interpretation is contained in the

legislative history of the 1949 Act. Senate Report No.

847, 8lst Congress, Ist Session (1949) on S. 2379, the

Senate Bill, reads as follows on page 30:

The general plan of title II is to express a compre-

hensive general coverage in section 201, subject to

specific exemptions in section 202. Thus, in order

for a department, or a group of positions or em-

ployees in or under a department, to be exempted

from the bill, an express exemption must be

found, either in section 202 or in some other

provision of future law. |Emphiasis supplied. |

See, also, House Report No. 1264, 81st Congress, Ist

Session (1949) on H.R. 5931, the companion House bill

that was enacted as the Classification Act of 1949, that

reads on page 5:

In addition, a large number of individual exemp-

tions in organic or appropriation acts, such as

exemptions for attorneys, engineers, experts, etc.,

in certain agencies would be repealed by implica-

tion and the positions brought within the bill.

3. In executing Section 1106 into the United States

and District of Columbia Codes, the interpretation set

forth above has now been followed by the codifiers. In

the case of laws set out in those Codes that contained

an exemption from the 1923 Act, and with respect to

which a corresponding exemption was not contained in

Title Il of the 1949 Act, the exemption has been

eliminated from the text of the Code section and an

explanation has been set out in a “Codification” note

thereunder.

In the 1958 edition (the next full edition after the

1952 edition) of the United States Code, the codifiers

eliminated from numerous sections provisions that in

the 1952 edition had contained exemptions from the

Classification Act of 1949 on the basis of Section

1106(a) of the 1949 Act. See, for example, the follow-

ing sections (and the “Codification” notes thereunder)

in the 1958 and subsequent editions of the United

States Code: Title 7, Sections 172, 511m, 659, 1015,

1507, 1627; Title 12, Sections 659, 1020; Title 15,

Sections 78d, 792-5, 80a-45, 80b-18, 714h, 717q, 1023;

Title 16, Sections 407r, 430z-1, 825i, 832i, 833h; Title

20, Sections 74, 76a, 77; Title 22, Section 293; Title

25, Section 305a; Title 29, Section 172; Title 31, Sec-

tion 866; Title 41, Section 104; Title 42, Section 209;

Title 46, Section 1111; Title 50 App., Section 326.

4. In order to clarify the “Codification” notes relat-

ing to those sections of the current (1970) edition of.

the United States Code in which an exception from the

Classification Act of 1923 has been omitted (which

notes have in some cases not drawn a clear distinction

between the reasons for eliminating exceptions from the

Civil Service laws and exceptions from the Classification

Act of 1923), the codifiers will expand these, notes in

the forthcoming 1976 edition of the United States

Code.

Some of the expanded Codification notes have been

included in Supplement IV (1974) of the 1970 edition

of the United States Code. These notes are similar to

those included in the latest (1973) edition of the Dis-

trict of Columbia Code. See, for example, the notes

under District of Columbia Code sections 1-262,

2-1709, 5-105, 5-713, 9-105, 9-209, 36-122.

/s/ Edward F. Willett, Jr.

Edward F. Willett, Jr.

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.