# Petition — Abell v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 429 U.S. 817

## Text

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RONEOUSLY SUPERSEDED THE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 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 The full text of the Commission’s two-page final determina-
tion is found in App. C, infra, p. Ic.

16

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.

17

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).

© Federal Communications Commission v. Pottsville Broadcast-
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.

18

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).

19

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.

20

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

21

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.

22
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).

23

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).

24

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.

25

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).

26
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

la
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

2a

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

3a

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

4a

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.

Sa

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

6a

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:

Ta

,
= 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.’ * * ¢
oe

8a

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.

9a

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 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

Ib
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

2b

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

Ic

APPENDIX C
a
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

2c

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:

3c

“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

ld
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

2d

(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.

3d

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

4d

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.

Sd

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2232%3A1. Public record. Not legal advice.