Length of Term of Nominee to Merit Systems Protection Board

• Court: Department of Justice Office of Legal Counsel
• Decided: September 8, 1979
• Status: Published

Opinion

September 8, 1979

79-65 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT

Merit Systems Protection Board—Term of Officer- Statutory Construction—5 U.S.C. § 1202

This responds to the request o f your Office for our opinion on the ques­ tion whether the President’s nom ination o f Mr. A to be a member o f the Merit Systems Protection Board (MSPB) correctly states the term o f the office as expiring on March 1, 1981, or whether he should be nom inated for a term o f 7 years. It is our opinion that the nom ination is correct as it stands. The Merit Systems Protection Board was created by Reorganization Plan No. 2 o f 1978' and was continued, as modified, by the Civil Service Reform Act o f 1978, § 202(a).2 The plan was made effective January 1, 1979.1 The effective date o f th e Act was January 11, 1979.4 In creating the Board the plan had provided simply: “ The United States Civil Service Commission is hereby redesignated the Merit Systems Protection B oard.” 5 It also redesignated the commissioners as members o f the B oard.6 The Act provides for appointm ent o f members o f the Board to 7-year term s,7 but also contains a transition provision relating to the terms o f members serv­ ing on the Board on the effective date o f the A ct.8 Commissioners o f the Civil Service Commission served 6-year terms that were systematically staggered so that one term expired every 2 years.

'43 F.R. 36037 (1978), reprinted in 5 U .S.C . § 1101 note (Supp. II, 1978). 25 U.S.C. §§ 1201-1209 (Supp. Ill, 1979). ’Executive O rder No. 12107, § 1 , 5 U .S.C . § 1101 note (Supp. II, 1978). ■ ‘Civil Service Reform Act of 1978, § 907, 5 U .S.C . § 1101, note (Supp. Ill, 1979). ’Reorganization Plan No. 2, § 201(a), 43 F.R. at 36038 (1978); 5 U .S.C . § 1101 note (Supp. II, 1978). *Id . ’Civil Service Reform Act, § 202(a). Section 202(a) o f the Act added C hapter 12 to title 5, United States Code. C hapter 12 consists o f §§ 1201-1209. The terms o f office o f the members o f the MSPB are set by § 1202(a), 5 U .S.C . § 1202(a) (1979 Supp.). •Civil Service Reform Act o f 1978, § 202(b), 5 U.S.C. § 1201, note (Supp. Ill, 1979).

351 W hen the commissioners were redesignated members o f MSPB, their terms o f office remained the same and continued to be controlled by 5 U.S.C. § 1102.9 That section provided: (a) The term o f office o f each Civil Service Commissioner is 6 years. The term o f one Commissioner ends on March 1 o f each odd-num bered year. (b) A Commissioner appointed to fill a vacancy occurring before the end o f the term o f office o f his predecessor serves for the remainder o f that term. The appointm ent is subject to the requirements o f section 1101 o f this title. (c) W hen the term o f office o f a Commissioner ends, he may continue to serve until his successor is appointed and has qualified. (d) The President may remove a Commissioner. Under § 1102 the terms o f the commissioners and, as o f January 1, 1979, o f the members o f the MSPB were due to expire, sequentially, on March 1, 1979, 1981, and 1983. On January 1, 1979, Mr. S, former civil service commissioner, then a member o f the M SPB, whose term was due to expire on March 1, 1981, received a recess appointm ent to a different office. He was sworn in on January 2. On that date he automatically vacated his office as a member o f the B oard.10 The office that he vacated had not been filled by Jan­ uary 11, 1979, the effective date o f the A c t." The question presented is whether the fact o f vacancy on that particular date worked an immediate change in the term o f the office vacated, the one for which Mr. A has been nom inated. We believe that it did not. The transition provision o f the Act reads: Any term o f office o f any member o f the Merit Systems Protec­ tion Board serving on the effective date o f this Act shall continue in effect until the term would expire under section 1102 o f title 5, United States Code, as in effect immediately before the effective date o f this Act, and upon expiration o f the term, appointm ents to such office shall be made under sections 1201 and 1202 of title 5, United States Code (as added by this section). Literally this provision is inapplicable to Mr. A ’s position. As written it would seem to affect only the term o f the office that was actually filled on January 11, 1979. A literal reading thus points to the conclusion that an office such as the one with which we are concerned, in existence but vacant

’Civil Service Reform Act o f 1978 § 201(a), am ended, inter alia, 5 U .S.C . § 1102. As used herein “ 5 U .S.C . § 1202” refers to that section o f title 5 as in effect immediately before the effective date o f the Act. '“The law in effect on January 2 provided that commissioners o f the Civil Service Commis­ sion (who had been redesignated members o f the MSPB by that date) could not “ hold another office or position in the Governm ent o f the United States.” 5 U .S.C . § 1101 (1976). "D ue to a com plicated chain o f events, two o f the three positions o f members o f the Merit Systems Protection Board were vacant on the effective date o f the Act.

352 on January 11, should be filled in accordance with the nontransitional terms o f the Act—that is, with a person appointed for 7 years. However, in our view Congress did not intend such a result. In explaining the transition provision the Senate report said: Subsection (e) provides that individuals currently serving on the Civil Service Commission, who will become members o f the Merit Systems Protection Board by virtue o f Reorganization Plan No. 2 o f 1978, will continue to hold their positions on the Board until their terms would otherwise have expired as members o f the Civil Service Commission (commissioners currently serve for six-year terms). If an individual now serving as a Civil Service Commissioner does not serve out the remainder o f his present term, an individual appointed to fill the vacancy will only serve for the remainder o f the six-year term established under the older law. Since the present terms o f the Commission are staggered, this procedure will assure that the new terms o f the members o f the Board will continue to be staggered.12 It is clear from this legislative history that the intent o f Congress in including the provision in the Act was twofold. First, it wished to maintain continuity with respect to the membership of the Merit Systems Protection Board. Sec­ ond, and more importantly, it intended to maintain continuity in the terms o f office o f the members o f the Board. This is apparent not only from the quoted legislative history o f the provision but also from its plain language. This continuity, however, was based upon a congressional assumption that the membership o f the Board would be fixed on the effective date o f the Act. Given this assumption, the primary focus o f the transition provision was on continuing, for an interim period, the terms o f office o f the members o f the Board as they were established by Reorganization Plan No. 2—that is, derivatively from 5 U.S.C. § 1102.13 The reason for this focus is clear. As is unequivocally stated in the legislative history, it is to “ assure that the new terms o f the members o f the Board will continue to be staggered,” as were the terms of the former civil service commissioners.

I2S. Rept. 969, 95th Cong., 2d sess. 28 (1978). Both the House and the Senate versions o f the Civil Service Reform Act contained transition provisions identical to the one finally enacted. Section 202(a) o f the Senate bill, S. 2640, 95th C ong., 2d sess. § 202(a) o f the Senate bill, S. 2640, 95th C ong., 2d sess. § 202(a) (1978), would have added a new chapter 12, con­ sisting o f §§ 1201-1207, to title 5 o f the United States Code. The transition provision was subsection (e) o f § 1202 to be added. In the House, the transition provision was § 202(b) o f H. 11280, 95th C ong., 2d sess. (1978). The House report erroneously describes H. 11280, § 202(b), as establishing the Board. See H . Rept. 1403, 95th C ong., 2d sess. 20 (1978). A ctu­ ally, it was § 202(c) o f H. 11280, as reported, that established pay rates. See 124 C o n g re s ­ s i o n a l R e c o rd H. 9368 (daily ed., Sept. 11, 1978), H. 9676 (daily ed., Sept. 13, 1978). ' ’Under the provision, as its explanation emphasizes, the duration o f an initial term o f o f­ fice o f a member o f the “ new” (congressionally created) Merit Systems Protection Board should not be changed by the resignation o f a form er m ember o f the Civil Service Com mis­ sion (whom Congress erroneously assumed would be serving on the Board on the effective date o f the Act). Rather, the term should continue as unexpired and may be filled only for the duration o f the period fixed by § 1102.

353 The question Mr. A ’s nom ination presents, therefore, is whether the words or intent o f § 1102 should govern the term o f office. Read literally the transition provision does not cover Mr. A and, therefore, he could receive a 7-year term. On the other hand, such a term would defeat the congressional intent o f providing systematically staggered terms. The problem arises because the factual situation here, a vacancy as o f Jan­ uary 11, 1979, simply was not foreseen by Congress. It is a well-settled rule o f interpretation “ that a thing may be within the letter o f the statute and yet not within the statute, because not within its spirit, not within the intention o f its m akers.” Church o f the Holy Trinity v. United States, 143 U.S. 457, 459 (1892). In Church o f the Holy Trinity, the C ourt refused to apply to a contract between a religious corporation and a pastor a broadly worded statute that made it a crime to assist an alien’s immigration to the United States by entering a service contract with him previous to his entry. There was no doubt that the contract fell “ with­ in the letter o f this section,” id., but the C ourt relied upon its understand­ ing o f the harm the Act was meant to correct, expressed in the legislative history, to hold that the contract nevertheless was not to be included within the prohibition. The Court has warned countless times “ against the dangers o f an ap­ proach to statutory construction which confines itself to the bare words of a statute, e.g., Church o f the H oly Trinity v. United States, 143 U.S. 457, 459-462; Markham v. Catell, 326 U.S. 404, 409; for “ ‘literalness may strangle m eaning,’ Utah Junk Co. v. Porter, 328 U.S. 39, 44.” Lynch v. Overholser, 369 U.S. 705, 710 (1962). The D.C. Court o f Appeals has stated this same principle as follows: * * * the plain meaning doctrine has always been considered subservient to a truly discernible legislative purpose * * * The use o f the legislative history to determine Congressional purpose is appropriate where * * * the literal words o f the statute would bring about an end completely at variance with the pur­ pose o f the Act * * *. [Aviation Consumer Project v. Washburn, 535 F. (2d) 101, 106-107 (D.C. Cir. 1976).] See also, Ozawa v. United States, 260 U.S. 178, 194 (1922) (“ We may look to the reason o f the enactment and inquire into its antecedent history and give it effect in accordance with its design and purpose, sacrificing, if necessary, the literal meaning in order that the purpose may not fail,” ) and Helvering v. New York Trust Co., 292 U.S. 455, 464 (1934) (“ the ex­ pounding o f a statutory provision strictly according to the letter without regard to other parts o f the Act and legislative history would often defeat the object intended to be accomplished” ). This principle o f statutory interpretation has frequently been applied to avoid constitutional problems; however, it is by no means limited to such problems. For example Helvering, supra, held the capital gains tax provi­ sion applicable to property held by a trustee for less than 2 years, despite language in the statute that on its face required that the property be held

354 more than 2 years. Again, in United States v. Public Utilities Commission, 345 U.S. 295 (1953), the Court held that although a literal reading o f the Federal Power Act would exclude municipalities from the definition o f a “ person” subject to regulation by the Federal Power Commission, this ex­ clusion had in fact been inadvertent. In such circumstances, intent rather than language, if they do not lead to the same result, should govern. 345 U.S. 316. Similarly, in United States v. American Trucking Association, Inc., 310 U.S. 534, 543 (1940), the Court limited the reach o f the Interstate Commerce Commission’s jurisdiction by reading a narrow interpretation, based on the legislative history, into the word “ employee” (“ even when the plain meaning did not produce absurd results but merely an unreasonable one ‘plainly at variance with the policy of the legislation as a whole,’ the C ourt has followed that purpose, rather than the literal words.” ) 310 U.S. at 543. A final example of the C ourt’s using the pur­ pose o f a statute to discount the literal application o f its language is Johansen v. United States, 343 U.S. 427 (1952). There the Court held that despite the language o f the Public Vessels Act, which on its face granted to anyone a right to bring suit against the United States “ for damages caused by a public vessel o f the United States,” Congress had no intention to grant this right to U.S. employees and therefore they were not to be in­ cluded within its scope. In sum, “ when aid to construction of the meaning o f words, as used in the statute, is available, there certainly can be no ‘rule o f law’ which for­ bids its use, however clear the words may appear on ‘superficial examina­ tio n .’ ” American Trucking Association, Inc., supra, at 543-544. In the case at hand the language is superficially clear, but the factual situation—resignation o f a member between January 1 and January 11, 1979—was not one that Congress contem plated. In applying the statute to these facts, the above cases make clear that congressional intent should preempt literal meaning. The major, expressed intent of Congress in including the transition provi­ sion in the Act was to “ assure that the new terms o f the members o f the Board will continue to be staggered.” We take the intent to stagger to be an important one, since historically Congress has consistently provided for the systematic staggering of the terms o f the heads of the major multimember independent agencies. Quite to the contrary of what Congress intended to achieve by the provision, a literal reading of the transition provision would assure, given the fact o f the vacancy, that the new terms of members of the Merit Systems Protection Board would never be systematically staggered. That intent, however, should not be lightly frustrated by a wooden applica­ tion of the provision designed to effectuate it. This is especially true when such an application would do nothing to further any demonstrable purpose o f the provision and is a possibility only because Congress made an assump­ tion o f fact that turned out to be erroneous. We believe that the correct construction o f the transition provision is that it continued unchanged, the terms o f office of all three members o f

355 the MSPB in existence on the effective date o f the Act, whether occupied or n o t.'4 In our view, this is the only construction that will effectuate the clearly expressed intent o f Congress. M oreover, it avoids the unreasonable and unintended result that a congressionally unanticipated vacancy on January 11 should result in a term for the vacant office different from that which would have resulted from a vacancy on any other day, a result dif­ ferent from that which Congress contem plated, and different from that dictated by the intent o f Congress ultimately to ensure systematically stag­ gered terms for the members o f the Merit Systems Protection Board. For the reasons stated we believe that the term o f the office o f member o f the Merit Systems Protection Board that Mr. A has been nominated to fill will expire on March 1, 1981.

John M. H arm on

Assistant A ttorney General Office o f Legal Counsel

“ We note further that the appointm ent o f Ms. P to the MSPB implicitly adopted the inter­ pretation presented here. The position she took was also one that was vacant on January II, 1979. Her term o f office, however, runs from March 1, 1979, which is the date the term of of­ fice o f the commissioner she replaced would have term inated. This means that it was as­ sumed that the term o f office o f the m em ber who resigned continued beyond January 11 to March 1, 1979, despite the resignation.