Jephunneh Lawrence v. Elmer B. Staats

MacKINNON, Circuit Judge

(concurring):

At issue is whether the excepted service employees of the General Accounting Office (GAO) are covered by the Equal Employment Opportunity Act of 1972, P.L. 92-261, 86 Stat. 103 (1972). I join Judge Pratt’s opinion in concluding from its language, structure, and legislative history that such Act applies only to those GAO employees who hold positions in the competitive service.

I.

Section 717(a) of the Act provides:

All personnel actions affecting employees or applicants for employment ... in executive agencies (other than the General Accounting Office) as defined in section 105 of title 5 . .. and in those units of the legislative and judicial branches of the Federal Government having positions in the competitive service, and in the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-16(a) (emphasis added). It is clear from the italicized clause of this section that the GAO is treated initially as one of the executive agencies, for the statute speaks of “executive agencies (other than the General Accounting Office)”. And the following reference to “executive agencies ... as defined in section 105 of Title 5, ” also includes the GAO as one of the executive agencies, for that section provides:

For the purposes of this title, “Executive agency” means an Executive department, a Governmental corporation, and an independent establishment.

5 U.S.C. § 105 (emphasis added). An “independent establishment” is defined by the *432preceding section 104 to include the General Accounting Office as follows:

For the purpose of this title, “independent establishment” means—
(1) an establishment in the executive branch (other than the United States Postal Service or the Postal Rate Commission) which is not an Executive Department, military department, Government corporation, or part thereof, or part of an independent establishment; and
(2) the General Accounting Office.

5 U.S.C. § 104 (emphasis added). Therefore, the plain language of the statute leads to the conclusion that Congress treated the GAO as one of the executive agencies, but, by adding the parenthetical clause “(other than the General Accounting Office)”, completely exempted the GAO from the Act.

It is nevertheless argued that the employees of the GAO in both its “excepted” and “competitive service” are covered by the Act because of a later provision in Section 717(a) which provides that “[a]ll personnel actions affecting employees ... in those units of the legislative and judicial branches of the Federal Government having positions in the competitive service . . . shall be made free from any discrimination. . .. ” Normally such an argument would fail because of the interpretive rule that specific statutory provisions control over general provisions. Brown v. GSA, 425 U.S. 820, 834-35, 96 S.Ct. 1961, 1968-69, 48 L.Ed.2d 402 (1976); Preiser v. Rodriguez, 411 U.S. 475, 489-90, 93 S.Ct. 1827, 1836 (1973); United States v. Demko, 385 U.S. 149, 87 S.Ct. 382, 17 L.Ed.2d 258 (1966); Patterson v. United States, 359 U.S. 495, 79 S.Ct. 936, 3 L.Ed.2d 971 (1959); Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 228-29, 77 S.Ct. 787, 791-92, 1 L.Ed.2d 786 (1957); 2A Sutherland Statutory Construction § 51.05 at 315 (Sands ed. 1972). As the Court declared in Fourco:

[T]he law is settled that “However inclusive may be the general language of a statute, it ‘will not be held to apply to a matter specifically dealt with in another part of the same enactment.... Specific terms prevail over the general in the same or another statute which otherwise might be controlling.’ Ginsberg & Sons v. Popkin, 285 U.S. 204, 208 [52 S.Ct. 322, 323, 76 L.Ed. 704].” MacEvoy Co. v. United States, 322 U.S. 102, 107 [64 S.Ct. 890, 893, 88 L.Ed. 1163].

Fourco, supra, 353 U.S. at 229, 77 S.Ct. at 792 (emphasis added). Under this rule, the special provision excluding “the General Accounting Office” would normally prevail over the general provision including “employees ... in those units of the legislative . .. branch[] .. . having positions in the competitive service.”

Thus, if our interpretation is to be controlled by the plain language of the statute and generally accepted rules of statutory construction, the GAO and all of its employees are excluded from the Act. There are, however, indications in the legislative history that Congress did intend the Act to apply to the GAO to some extent, and to apply since the GAO is a part of the legislative branch of government.

For example, Senator Javits remarked on the Senate floor that “those employees of Congress or congressional agencies, in the competitive service as it is called, which would include employees of the General Accounting Office .. . are included within the ambit of the [Senate] bill as it now stands.” 118 Cong.Rec. 4499 (1972) (emphasis added).

In addition, Senator Cranston in proposing an amendment to bring the Library of Congress within the Act, stated: “[although [the Senate bill as currently drafted] would apply to both the General Accounting Office and the Government Printing Office—which are agencies of the Congress, it would not apply to the Library of Congress .... ” Id. at 4921 (emphasis added).

Finally, in a section-by-section analysis of the Senate bill as adopted by the Conference Committee, Senators Williams and Javits stated with regard to the scope of Section 717(a):

This subsection provides that all personnel actions of the U.S. Government, affecting employees or applicants for em*433ployment, shall be free from discrimination based on race, color, religion, sex or national origin. Included within this coverage are executive agencies, the United States Postal Service, the Postal Rate Commission, certain departments of the District of Columbia Government, the General Accounting Office, Government Printing Office, and the Library of Congress.

Id. at 7169 (emphasis added). If these expressions of Congressional intent are to be given effect,1 the most obvious vehicle is the provision extending coverage to “employees ... in those units of the legislative ... braneh[ ] ... having positions in the competitive service,” notwithstanding that GAO employees were initially treated as part of the executive branch.

The crucial question then arises whether the scope of the coverage accorded to the legislative branch encompasses employees in the excepted service. The language of the statute strongly suggests that it applies only to employees who actually hold competitive service positions (“All personnel actions affecting employees ... in those units of the legislative . .. branch[] . . . having positions in the competitive service .. . shall be made free from any discrimination ....”) (emphasis added). This provision has been so interpreted by the Supreme Court, Davis v. Passman, 442 U.S. 228, 247, 247 n.26, 99 S.Ct. 2264, 2278, 2278 n.26, 60 L.Ed.2d 846 (1979), by this Court, Bethel v. Jefferson, 589 F.2d 631, 637 n.29 (D.C.Cir.1979), and by at least one commentator, Comment, The Coverage of Federal Excepted Service Personnel Under the Equal Employment Opportunity Act of 1972, 65 Geo. L.J. 837, 841 (1977). GAO argues, however, that this interpretation is erroneous because the phrase “having positions in the competitive service” should be read as modifying the words “units of the legislative branch” and not the word “employees”. Thus, GAO contends that as long as any unit of the legislative branch has one competitive service position, its entire complement of employees is covered by the Act, regardless of whether the particular employee who invokes its protection is a member of the competitive or excepted service. GAO thus concludes that it is a unit of the legislative branch which has some positions in the competitive service and therefore that the Act applies to appellant Lawrence.

Although this construction of the statute is not wholly lacking in support if we are to ignore the plain exemption of the GAO, it simply cannot be squared with the structure and legislative history of Section 717(a). Turning first to the structure of Section 717(a), it is immediately apparent that Congress clearly differentiated between executive agencies on the one hand and the legis*434lative and judicial branches on the other. The explanation for this is also obvious. Section 717(a) proscribes discrimination in executive agencies without qualification (“All personnel actions affecting employees ... in executive agencies ... shall be made free from any discrimination ....”) (emphasis added), but qualifies its application to the legislative and judicial branches with the phrase “having positions in the competitive service”. This structure suggests that Congress intended to afford substantially different, and by clear implication, substantially less extensive coverage to employees of the legislative and judicial branches. Under the interpretation of Section 717(a) argued by the GAO, however, this structure would be largely obliterated, since all employees of a unit would be covered by the statute, and thus would be treated in exactly the same manner as employees of executive agencies, as long as only one employee in that unit held a position in the competitive service.2 In essence, such construction implies that Congress drew a meaningless distinction for no apparent reason. The court should be very reluctant to draw such inference.3

That GAO’s reading of Section 717(a) does violence to its structure is made especially clear when the manner in which Congress treated the GAO itself in the statute is considered. Congress specifically excluded the GAO from Section 717(a)’s definition of executive agencies, no doubt because it did not wish to bring all GAO employees within the scope of the Act. Under GAO’s construction of the coverage afforded employees of the legislative branch, however, all GAO employees would be found to be covered by the Act. Thus, to accept this interpretation, we must ascribe to Congress the intent to take the entire GAO completely out of the Act in the forepart of the statutory sentence and then to put the entire agency right back in again in the next part of the sentence. To so interpret the intent of Congress would be highly unreasonable. It is eminently more reasonable to assume that had Congress intended the Act to apply to all GAO employees, it would not have excepted the GAO from the definition of the executive agencies in the first place.

Turning next to the legislative history, we see that Congress intended, with respect to the legislative branch in general and the GAO in particular, to extend coverage only to competitive service employees. Section 717(a) has its genesis in a provision of the Senate bill, S.2515, 92d Cong., 1st Sess. § 11 (1971)4 that was obviously modelled after Executive Order No. 11478. This order, *435entitled “Equal Employment Opportunity in the Federal Government”, unambiguously limited its coverage to legislative branch employees who held competitive service positions:

This Order applies (a) to . . . executive agencies (other than the General Accounting Office) as defined in section 105 of title 5, United States Code, and to the employees thereof, and (b) to those portions of the legislative and judicial branches of the Federal Government .. . having positions in the competitive service and to the employees in those positions.

Exec. Order No. 11478, 42 U.S.C. § 2000e note (emphasis added).

Although Section 717(a) and the Executive Order do not contain identical language, the legislative history of Section 717(a) indicates that the scope of its legislative branch coverage is the same as that of the order. In proposing his amendment to include the Library of Congress in the statute, Senator Cranston explained:

Mr. President, unfortunately, as drafted, these provisions, which in many respects only codify requirements presently contained in Executive orders and the Constitution, would not apply to employment in the Library of Congress. That is because legislative branch coverage in the bill is limited to ‘positions in the competitive service’. Although this would apply to both the General Accounting Office and the Government Printing Office— which are agencies of the Congress, it would not apply to the Library of Congress which does not have positions in the competitive service and is not generally bound by the Federal personnel manual.

118 Cong.Rec. 4921 (1972) (emphasis added). And, as noted earlier, Senator Javits also declared during the floor debate in the Senate:

[J]ust to make one point clear, it is to be noted that those employees of Congress or congressional agencies, in the competitive service, as it is called, which would include employees of the General Accounting Office and the Printing Office, and perhaps some other housekeeping employees, are included within the ambit of the bill as it now stands.

Id. at 4499 (emphasis added). These statements, coming from persons whose familiarity and involvement with the legislation at issue was substantial, authoritatively establish Congress’ intent.5

II.

The interpretation of Section 717(a) suggested by the dissent is rejected largely because it collides with the language of the statute. Section 717(a) protects “employees ... in those units of the legislative and judicial branches . . . having positions in the competitive service.” 42 U.S.C. § 2000e-16(a). Although this language is amenable to two possible readings—one in which the phrase “having positions in the *436competitive service” modifies the word “employees” and thereby limits coverage to competitive service employees, and one in which the phrase modified the words “units of the legislative and judicial branches” and thereby extends coverage to all employees of units containing at least one competitive service position, the legislative history of the statute demonstrates that the former interpretation accurately effectuates Congress’ intent. This court gave the same construction to the same provision of the Act in Bethel v. Jefferson, 589 F.2d 631, 637 n.29 (D.C.Cir.1979) (“[T]he legislation expressly exempts noncompetitive-service employees of the Judicial and Legislative Branches ....”) (emphasis added).

Now, finding the word “unit” to be ambiguous, the dissent argues for a third construction in which Congress would be found to have included with Section 717(a) those “legislative and judicial employees whom Congress has placed as a group under the civil service laws, and with respect to whom Congress delegated to the Civil Service Commission the responsibility for categorizing the positions as within either the competitive or excepted service.” Dis. Op. at 443. This standard, however, bears little resemblance to the words used by Congress to express its will, and those words are the most important manifestation of Congressional intent. See e. g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). This, construction would also extend coverage to employees working in units which do not “hav[e] positions in the competitive service”. For example, it would reach an excepted service employee serving in a unit comprised totally of excepted service employees. Dis. Op. at 443-444 n.70.

The dissent is nevertheless untroubled by these apparent anomalies, because of a claimed reliance upon a “far-ranging probe into the legislative history of Section 717(a)”, id. at 437, and a statement in the Senate report that “[a]ll employees subject to . . . Civil Service Commission control or protection are covered by this section”, id. at 446. I am not persuaded, however, that this sentence compels an interpretation of Section 717(a) which is so at odds with the meaning communicated by its language. I also concur in this Court’s prior observation that “this statement [is] too cryptic to carry much weight in interpreting the statute.” Bethel v. Jefferson, supra, 589 F.2d at 639 n.47.

III.

The language of the statute and its legislative history establish that Congress intended, through the Equal Employment Opportunity Act of 1972, to extend Title VII coverage only to those employees in the GAO, and in all units of the legislative branch, who hold positions in the competitive service. Since appellant Lawrence is a member of the excepted service, the district court correctly held that Title VII did not apply to him, and I thus concur in Judge Pratt’s opinion affirming its ruling.

. Courts may rely upon legislative history to construe a statute in a manner contrary to its plain language when such is necessary to effectuate Congress’ intent and understanding of a statute. See, e. g., Lynch v. Overholser, 369 U.S. 705, 710, 717, 82 S.Ct. 1063, 1067, 1070, 8 L.Ed.2d 211 (1962); Harrison v. Northern Trust Co., 317 U.S. 476, 479, 63 S.Ct. 361, 362, 87 L.Ed. 407 (1943); U. S. v. American Trucking Assns., 310 U.S. 534, 543-44, 60 S.Ct. 1059, 1063-64, 84 L.Ed. 1345 (1940); United States v. Kelly, 328 F.2d 227, 236 (6th Cir. 1964); 2A Sutherland Statutory Construction, § 46.07 p. 65 (Sands, 1972). In this case, Senators Williams’, Javits’, and Cranston’s construction of Section 717(a) is entitled to considerable weight as they played significant roles in the passage of the Act. Senator Williams was the primary sponsor and floor manager, see 117 Cong.Rec. 31718 (1971) (remarks of Sen. Williams); 118 Cong.Rec. 4948-49, 4938 (1972) (remarks of Sen. Mansfield), of the Senate bill, which, as amended, was ultimately passed. He was also the Chairman of the Senate Committee on Labor and Public Welfare that handled the Senate bill. See S.Rep.No.415, 92d Cong., 1st Sess. (1971). Senator Javits was the ranking minority member of the same committee, and was “very heavily involved” with the bill. 118 Cong.Rec. 579 (1972) (remarks of Sen. Javits). Senator Cranston was also a member of the Committee on Labor and Public Welfare and a co-sponsor of the Senate bill as reported from that committee, 118 Cong.Rec. 4929 (1972) (remarks of Sen. Cranston). In addition, both Senators Williams and Javits served on the Conference Committee, see Legislative History, Equal Employment Opportunity Act of 1972, 92d Cong. 2d Sess., March 2, 1972, 1842. Thus, even though the plain language of Section 717(a) excludes the entire GAO from the Act, it is appropriate to rely upon the analysis of Senators Williams, Javits, and Cranston, and to include the GAO within the Act under the coverage extended by Section 717(a) to employees of the legislative branch.

. Although there appears to be no authoritative empirical data on this point, I readily join in the dissent’s assumption that it is “improbable” that any unit of the legislative branch would not contain at least one employee in the competitive service, see Dis.Op. at 443-444 n.70.

. The GAO’s construction is also bottomed on the unlikely assumption that Congress intended a unit of lawyers in an agency’s counsel’s office to have their status determined by the fact that messengers and typists in the unit may be in the competitive service.

. The original Senate bill, as submitted to the Senate Committee on Labor and Public Welfare, contained the following language:

All personnel actions affecting employees or applicants for employment ... in executive agencies (other than the General Accounting Office) as defined in section 5 of title 5, United States Code ... and in those portions of the government of the District of Columbia, and the legislative and judicial branches of the Federal Government having positions in the competitive service, shall be made free from any discrimination based on race, color, religion, sex, or national origin.

See S.Rep.No.415, 92d Cong., 1st Sess. 30 (1971). Although this language was amended in minor respects by the Senate Committee, see id. at 62-63 (“in those units of the Government of the District of Columbia having positions in the competitive service, and in the legislative and judicial branches of the Federal Government having positions in the competitive service”), and on the floor of the Senate, see 118 Cong. Rec. 4921-4923 (1972) (“in those units of the Government of the District of Columbia having positions in the’competitive service, and in those units of the legislative and judicial branches of the Federal Government having positions in the competitive service, and in the Library of Congress”), there is no indication in the legislative history that these minor changes in language were intended in any way to broaden the scope of the original language, apart from including the Library of Congress in the Act.

. See n.1 supra.

Some statements in the legislative history, it may be argued, are not completely consistent with the terms of the Act or with Senator Javits’ and Senator Cranston’s interpretation of the reach of Section 717(a). For example, the Senate Report states that “[a]ll employees subject to the executive branch and Civil Service Commission control or protection are covered by this section”, S.Rep.No.415, 92d Cong., 1st Sess. 45 (1971), and a section-by-section analysis of the Senate bill, as it read when adopted by the Conference Committee, states that “[tjhis subsection provides that all personnel actions of the U. S. government affecting employees or applicants for employment shall be free from discrimination 118 Cong.Rec. 7169 (1972). These statements, however, are extremely cryptic and even somewhat contradictory, and do not cast much light upon the issue before us. At best they are only general statements which, when analyzed along with the language of the statute and more detailed descriptions of the statute’s scope, lose much of their force.

Furthermore, since Senators Javits and Cranston were active in passing the bill, and were members of the committee that handled the bill and issued the Senate report, and since Senator Javits co-authored the referenced section-by-section analysis, these brief statements must be read in keeping with the understanding of the legislation as expressed by Senators Javits and Cranston on the Senate floor. That understanding quite clearly was that legislative branch coverage was limited to employees holding positions in the competitive service.