Dissenting:
With deference, I cannot join in the court’s decision. I am convinced that the Government acted without statutory authority in imposing a cap on plaintiffs’ wages for the fiscal years 1979 and 1980, because in doing so, the Executive Department completely ignored the guidelines set by Congress. As shown in the majority opinion, Congress fixed ceilings on the pay of some Government employees for the fiscal years 1979 and 1980, but no such action was taken with respect to the plaintiffs until Congress enacted the Joint Resolution of October 1, 1980, section 114(a), Pub. L. 96-369, 94 Stat. 1351,1356.
Therefore, the only authority which the Executive Department had to adjust the wages of plaintiffs for the fiscal years 1979 and 1980 were the prevailing rate statutes — 5 U.S.C. §5341, which applies to plaintiffs and to other prevailing rate employees, and 5 U.S.C. §5348, which applies only to plaintiffs. In the latter statute, Congress directed that these employees be compensated as nearly as is consistent with the public interest in accordance with prevailing rates and practices in the maritime industry. The parties have agreed that under this procedure, the pay of plaintiffs employed by both NOAA and MSC is fixed by reference to the current rate schedule contained in the industrywide collective bargaining agreement between Na*79tional Maritime Union and the various commercial maritime employees signatory thereto.
HH
In the fiscal years 1979 and 1980, President Carter directed that the agencies place a 5.5 percent ceiling for the employees here concerned. The sole basis for his order was that the action was required in "the public interest to control inflation.” The same action was promulgated for the fiscal year 1980 by the Director of Personnel Management, which limited the fiscal 1980 pay increases for these employees to 7.2 percent. It is agreed that during the fiscal years 1979 and 1980, plaintiffs’ counterparts in private industry received substantially higher increases for those years than the amounts fixed by the Executive Orders. There is no evidence and no contention by the Government that in placing a cap on plaintiffs pay for the years in dispute, the executive agencies gave any consideration to the statutory guidelines set forth in section 5348.
Under the facts stated, the issue to be decided is not whether section 5348 grants "some discretion” to the Executive Department to adjust the wages of plaintiffs, as the majority has stated. Rather, the issue is whether section 5348 grants to the Executive Department such unrestricted and unlimited discretion that it was authorized to ignore completely the statutory guidelines in fixing the pay of plaintiffs for the years 1979 and 1980. This question was recently answered in the negative by the Court of Appeals for the District of Columbia in National Federation of Federal Employees, et al. v. Brown, 645 F.2d 1017 (1981), hereinafter referred to for convenience as "Brown. ”
There, as here, a cap was imposed on the pay of nonappropriated fund employees solely on the basis of President Carter’s memorandum of January 4, 1979, without any statutory authority to impose a ceiling on the pay of these employees. There, as here, the statutory guidelines provided for in section 5341 with respect to these employees were ignored. In reversing the district court’s judgment in favor of the Government the court of appeals declared:
*80We conclude that the "public interest” clauses do not bear the weight the district court placed on them. Rather, we believe that executive discretion to fix and adjust pay rates for members of the class herein is circumscribed by the principles Congress enumerated in 5 U.S.C. §5341 (1976): (1) equal pay for equal work in all federal agencies within the same locality; (2) differences in pay for substantial differences in duties, responsibilities, and qualification requirements; (3) rates of pay maintained in line with rates paid locally for comparable work in the private sector; (4) rates of pay maintained at a level that attracts and retains qualified employees. If other principles are to augment, modify, or supplant this list, Congress must supply the authorization_(645 F.2d at 1019)
*****
[T]he 5.5% pay cap for nonappropriated fund workers might be justified under the first principle Congress supplied, equal pay for equal work in all federal agencies within the same locality. But the executive action at issue must be tied to a legislative direction giving content to the words "public interest.” Congress did not authorize the executive to go outside its guidelines and attribute to those words any nonarbi-trary meaning the President finds consonant with the nation’s welfare. (645 F.2d at 1019-20)
*****
The sole matter appropriately resolved at this juncture by the court is whether the executive branch has correctly applied the statute that establishes its authority. We hold that it has not. Under the structure of government — the separation of powers — established by the Constitution, the President has no authority to alter policy and principles declared by Congress even if, at the time the President acts, signals from Congress suggest it would approve the President’s action. * * * (645 F.2d at 1025)
*****
We must therefore reject the sole position advanced by the Government in support of the contested executive action — that the President remains free to define the "public interest” in any reasonable manner and without reliance upon the explicit standards Congress set to constrain executive discretion. (645 F.2d at 1025)
*81We hold that the public interest clauses do not have a life of their own, separate and distinct from the guides Congress enumerated in the prevailing rate statute. We therefore conclude that the defendants acted impermissi-bly in capping the wages of nonappropriated fund workers solely on the basis of the President’s anti-inflation program. * * * (645 F.2d at 1025)
The court has attempted, unsuccessfully I think, to distinguish Brown but a comparison of the two opinions, will show that the ratio decidendi of Brown, is in direct conflict with the reasoning underlying the court’s decision. In reality, Brown provides stronger support for the claims of these plaintiffs than for the nonappropriated fund workers involved there. The reason for this is that the guidelines of section 5341, applicable to the nonappropriated fund workers, allow for an adjustment to their pay equivalent to that paid to other Federal employees working under similar conditions. Not so with these plaintiffs. As this court stated in Blaha v. United States,206 Ct. Cl. 183, 193-94, 511 F.2d 1165, 1169 (1975):
The Congress in enacting § 5348 recognized the unique character of the pay practices in the maritime industry. It saw that the pay practices existing shoreside with respect to Government employees would be a Procrustes bed if applied to Government vessels and to civilians employed as seamen thereon, union members doing the same work as their commercial counterparts. Its solution was to authorize pay practices to conform "as nearly as is consistent with the public interest”, not to Government shoreside practice, but to private industry practice afloat:
The reference to Blaha leads me to the observation that the court’s decision also collides head-on with the basic holding in Blaha. Strangely, the court relies on Blaha despite Judge Nichols’ pronouncement in that case that:
We think the "public interest” exception was written to provide flexibility needed to eliminate anomalies and inequities that might arise from a too literal conformity to industry pay practices. It was not written to authorize a complete frustration of the Congressional scheme. Since Commerce relies so heavily on the imaginary horrible, let us too suggest one: if Commerce can do what it has done with the relatively minor vacation supplement, it can *82refuse to apply § 5348 in any part, declaring the entire wage scheme resulting from collective bargaining not to be "consistent with the public interest.” (206 Ct. Cl. at 194, 511 F.2d at 1170)
Here we have a complete frustration of the Congressional scheme, because the wages of the plaintiffs for 1979 and 1980 were set by disregarding entirely the guidelines specified by Congress.
As authority for its position, the court cites: Benevento v. United States, 198 Ct. Cl. 772, 461 F.2d 1316, cert. denied, 409 U.S. 1038 (1972); Beatteay v. United States, 198 Ct. Cl. 989 (1972); Benham v. United States, 198 Ct. Cl. 990 (1972) and Daniels v. United States, 187 Ct. Cl. 38, 407 F.2d 1345 (1969). These decisions are inapposite, for as the court stated in Blaha: "These cases *** involved the selection of the segment of the maritime industry to be treated as the model for comparison.” (206 Ct. Cl. at 189, 511 F.2d at 1167) None of them involved a situation where no consideration whatever was given to the statutory guidelines.
The only decision cited by the majority which I think is consistent with its opinion is Daigle v. United States, 217 Ct. Cl. 376 (1978). Admittedly, I cannot reconcile Daigle with the central holding in Blaha with respect to the application of the public interest clause. Nevertheless, I would hold that Brown and Blaha have correctly decided how the public interest clause should be applied in adjusting the wages of employees under the provisions of 5 U.S.C. §§5341 and 5348.
II.
In an effort to buttress its conclusions, the majority has cited a good deal of legislative history. As I read the history, it provides even less support for the court’s decision than the decisional law.
In an apparent effort to show that the guidelines have little significance, the majority quotes the following statement made by Senator McGee: "The guidelines are not extensive. They will not bind the hands of the executive branch too firmly.” This statement was taken out of context from Senator McGee’s statement. He was the floor manager *83of H.R. 9092, which was enacted in 1972, as Public Law 92-392, 86 Stat. 564. As the court stated in Brown, he explained that the purpose of the bill was to anchor executive decisions to statutory guidelines and policy. A reading of his complete statement will, I believe, show that the majority has misconceived the Congressional intent. Senator McGee’s statement follows:
But the system is not perfect and it is not established under statute as determined by the legislative power of the Government. The President may at his discretion revise the system, and the 650,000 employees in the system do not have the assurance of guidelines established by law. We often, in our rhetoric, brag about our being a nation under law, not under men. Yet, here would seem to be a flagrant denial of that somewhat sacred principle — at least, rhetorically. When we contrast the status in Federal Government, in the inequity that now exists, with the circumstances in other segments of the Nation’s business community, we can appreciate the change that is required. For example, if one is running a small shop on Main Street, the authority to change things around and issue new orders without legislative guidelines may be desirable. That is the way we run our offices, for example. We hire and fire as we please. We pay our employees what we think they are worth, based on individual judgments, or what our sense of compassion and humanitarianism inspires us to provide. But when you are running the biggest business in the world, which is the Government of the United States, you just cannot run a responsible store that way. We do not do it that way for any other Federal employees. There has been a classified system established by law for the civil service for 50 years. There was a classification system established by law for postal workers until the enactment of the Postal Reorganization Act, and that system of classification and pay was carried over into the new, semi-independent postal agency until superseded by collective bargaining. The wage board employees are the only group in the executive branch who do not have either a formal job classification and pay system established by law or collective bargaining options. The time is long overdue for establishing such an orderly statutory system.
In its simplest form, that is what H.R. 9092 does. It says that this is going to be the law when it comes to blue-collar workers. This is what the President and the Civil Service Commission and the various agencies in the executive branch are going to do. It is the function of *84Congress to declare what the policy of the Government shall be. It is the function of the executive branch to carry out that policy. Guidelines are established in this bill that shall direct the course of administrative action by the Civil Service Commission. The guidelines are not extensive. They will not bind the hands of the executive branch too firmly. But they will assure 650,000 blue-collar workers that — to borrow a phrase — yes, Virginia, there is a Congress of the United States, and there is a policy for blue-collar employment system. (Emphasis added) (118 CONG. REC. 21017 (1972))1
In the debate on the bill, Senator Pell stated:
All too often, the interests of the Government’s blue-collar workers have been sacrificed in pursuit of other goals of the Government. Although the stated goal may be fair treatment, there is in the executive branch an understandable, but nonetheless regrettable, temptation to view blue-collar wages as a weapon in efforts to balance a budget, or to combat inflation. When this happens, equity suffers, and the blue-collar worker bears a burden not shared by his fellow workers in private industry.
Since I have been in the Senate, I have maintained close contact with the thousands of prevailing wage employees in the State of Rhode Island and with their elected spokesmen. I have become intimately familiar with their problems and their grievances. On their behalf, and in the interest of fairness, I have worked and tried to correct some of these inequities — for example, wage survey areas that are defined too narrowly to encompass a true labor market, and result in the payment of substandard wages as a "prevailing” wage. Or, as another example, the arbitrary freezing of blue-collar wages to combat inflation while workers in nongov-ernment jobs were permitted wage increases. (Emphasis added) (118 CONG. REC. 21029-30 (1972))
In the House, the following remarks of Representative Matsunaga are also indicative of the Congressional intent:
There is * * * virtually universal agreement on the need for some legislation in the area covered by the pending bill. Even the administration has submitted a proposal. The approximately 810,000 prevailing-rate employees of the Government, including 11,000 who work in Hawaii, deserve immediate attention. Their pay is determined by administrative regulation subject to change *85when administrations change, when a different bureaucrat succeeds to a particular job, or when an administration decides to change its policies. The basic thrust of H.R. 9092 is to enact into law the present procedures used to determine and adjust wages for these workers. (117 CONG. REC. 27681 (1971))
In summarizing the legislative history of the 1972 Act, the court of appeals stated in Brown:
Remarks by both supporters and opponents of the 1972 amendments * * * are consistent with Senator McGee’s repeated plain statements that the intent was to "set standards of direction” that would control administrative practices and constrain executive discretion. * * * Given this history, it is clear that Congress meant to set, not merely to recommend, policy and principles, (footnotes omitted) (645) F.2d at 1024)
The court also relies on the following statement from Senate Report 939,95th Cong., 2d Sess. 56 (1978):
This provision would be applicable to all Federal agencies and is based on the desire that all Federal employees be treated equally as to fiscal year 1979 salary increases. (Emphasis added)
The quotation is wide of the mark. In the first place, it is preceded by a sentence which reads as follows:
Sec. 614. By a rollcall vote of 12 yeas and 9 nays, the Committee approved an amendment providing a ceiling on salary increases for wage board workers during fiscal year 1979 to the 5.5 percent ceiling previously announced by the President for general schedule (GS) employees.
Plaintiffs are not wage board employees. The statement was addressed to the bill which became Public Law 95-429, 92 Stat. 1001, which fixed a ceiling for the fiscal year ending September 30, 1979, for prevailing rate employees described in section 5342(a)(2)(A) of title 5. This section is not applicable to plaintiffs. They are specifically excluded from its coverage by section 5342(b)(3) which exempts from the coverage of the subchapter, crews of vessels described in 5 U.S.C.§ 5102(c)(8).
The court also places heavy emphasis on the fact that the public interest clause has been included in the law since *861949, and has subsequently been re-enacted up to and including the 1978 Act. This emphasis on the "old law” seems to me to ignore the general rule that if legislative history is to be relied on, a court must look to the history of the act that was in effect at the time the events in issue occurred. That act was the 1972 Act. As has been demonstrated, the legislative history of the 1972 Act is plainly inconsistent with the court’s decision.
III.
For the reasons stated, I would hold that the 34 persons who have been added to the petition as plaintiffs are entitled to recover the difference between what they were paid during the fiscal years 1979 and 1980, and the pay which their counterparts in private industry received during those years. I concur in the court’s decision that they are also entitled to receive premium pay and overtime pay in those years. I also agree with the court that the petition should be dismissed as to the plaintiff, National Maritime Union of America, AFL-CIO.
The references here are to bound volumes of the Congressional Record.