B-217020, JAN 28, 1985, 64 COMP.GEN. 221

B-217020, JAN 28, 1985, 64 COMP.GEN. 221

POSTAL SERVICE, UNITED STATES - AUTHORITY - OMNIBUS RECONCILIATION ACT OF 1981 OMNIBUS RECONCILIATION ACT OF 1981 LANGUAGE ESTABLISHED A NEW SUBCHAPTER TO CH. 45 OF TITLE 5, U.S.C. (5 U.S.C. 4511-4514). THE NEW SECTION 4514 OF TITLE 5 READS AS FOLLOWS: "NO AWARD MAY BE MADE UNDER THIS TITLE AFTER SEPTEMBER 30, 1984." QUESTION POSED IS WHETHER USE OF THE WORD "TITLE" IN SECTION 4514 SHOULD BE READ LITERALLY WHICH WOULD MEAN THAT ALL TITLE 5 AWARDS AUTHORITY EXPIRED AFTER SEPT. 30, 1984. IT IS CLEAR FROM THE LEGISLATIVE HISTORY THAT THE REFERENCE TO "TITLE" SHOULD HAVE BEEN "SUBCHAPTER." THE CLEAR CONGRESSIONAL INTENT AS SHOWN FROM THE LEGISLATIVE HISTORY IS CONTROLLING OVER THE DRAFTING ERROR CONTAINED IN THE STATUTORY LANGUAGE. FEDERAL COURTS HAVE ALLOWED THE EXPRESSED INTENTION OF CONGRESS TO PREVAIL OVER THE ERRONEOUS LANGUAGE OF A STATUTE.

TO THE HONORABLE WILLIAM D. FORD, UNITED STATES HOUSE OF REPRESENTATIVES, JANUARY 28, 1985:

THIS IS IN RESPONSE TO YOUR LETTER DATED OCTOBER 18, 1984, STATING THAT SOME UNCERTAINTY EXISTS AS TO WHETHER AUTHORITY TO MAKE "AWARDS" UNDER TITLE 5, U.S.C. OTHER THAN THOSE PROVIDED FOR IN 5 U.S.C. SECS. 4511-4514, STILL EXISTS, AND REQUESTING OUR OPINION ON THIS MATTER. WE HAVE REVIEWED THE RELEVANT STATUTORY LANGUAGE IN LIGHT OF APPLICABLE PRINCIPLES OF STATUTORY CONSTRUCTION, AND ARE OF THE OPINION THAT THE LANGUAGE OF 5 U.S.C. SEC. 4514 DOES NOT AFFECT ANY OF THE AWARD PROVISIONS IN TITLE 5 EXCEPT THE PROVISIONS FOR AWARDS FOR COST SAVINGS DISCLOSURES FOUND IN 5 U.S.C. SECS. 4511-4514.

YOU HAVE STATED THAT THE UNCERTAINTY REGARDING THE AWARDS PROVISIONS OF TITLE 5 ORIGINATED IN SECTION 1703 OF THE OMNIBUS BUDGET RECONCILIATION ACT OF 1981, PUB.L. NO. 97-35, APPROVED AUGUST 13, 1981, 95 STAT. 357, 755, WHICH AUTHORIZED THE PAYMENT OF CASH AWARDS TO FEDERAL EMPLOYEES WHO DISCLOSE FRAUD, WASTE, OR MISMANAGEMENT. IT DID SO BY ADDING A NEW SUBCHAPTER II TO CHAPTER 45 OF TITLE 5, U.S.C. (5 U.S.C. SECS. 4511- 4514). THE NEW SECTION 4514 OF TITLE 5 READS AS FOLLOWS:

NO AWARD MAY BE MADE UNDER THIS TITLE AFTER SEPTEMBER 30, 1984.

THIS PROVISION, IF READ LITERALLY, WOULD MEAN THAT ALL TITLE 5 AWARDS AUTHORITY EXPIRED AFTER SEPTEMBER 30, 1984. YOU STATE THAT IT IS CLEAR THAT CONGRESS INTENDED THE TERMINATION PROVISION OF 5 U.S.C. SEC. 4514 TO APPLY ONLY TO THE CASH AWARDS PROGRAM ESTABLISHED UNDER THE NEW SUBCHAPTER II OF CHAPTER 45, TITLE 5 U.S.C. ACCORDINGLY, YOU ADVISE US THAT THE REFERENCE TO "TITLE" IN SECTION 4514 SHOULD BE TO "SUBCHAPTER."

THE LEGISLATIVE HISTORY OF THE OMNIBUS ACT PROVIDES A USEFUL BACKGROUND. SECTION 1703 ORIGINATED IN THE HOUSE OF REPRESENTATIVES, AND, AS PASSED BY THE HOUSE, PROVIDED PERMANENT AUTHORITY TO MAKE CASH AWARDS FOR COST SAVINGS DISCLOSURES. HOWEVER, DURING THE CONFERENCE WITH THE SENATE, IT WAS AGREED TO ESTABLISH THE PROGRAM ON AN EXPERIMENTAL BASIS, AND THE CONFEREES FURTHER AGREED THAT AUTHORITY TO MAKE THESE AWARDS UNDER THE NEW SUBCHAPTER WOULD TERMINATE AFTER FISCAL YEAR 1984. THIS AGREEMENT IS REFLECTED IN 5 U.S.C. SEC. 4514, QUOTED ABOVE, AND IS EXPLAINED IN THE CONFERENCE REPORT AS FOLLOWS:

THE SECOND AMENDMENT AGREED TO BY THE CONFEREES PROVIDES THAT NO AWARD MAY BE MADE UNDER THE NEW CASH AWARDS PROGRAM AFTER SEPTEMBER 30, 1984. THE THREE-YEAR LIFE OF THE PROGRAM CONFORMS WITH THE THREE-YEAR RECONCILIATION INSTRUCTIONS AND PROVIDES OPPORTUNITY FOR CONGRESSIONAL REVIEW OF THE EFFECTIVENESS OF THE CASH AWARDS PROGRAM. H.R. REP. NO. 208, 97TH CONG., 1ST SESS. 914 (1981).

IT IS CLEAR, THEREFORE, THAT THE REFERENCE TO "TITLE" IN SECTION 4514 SHOULD HAVE BEEN "SUBCHAPTER" SINCE THAT SECTION IS PART OF THE NEWLY CREATED "SUBCHAPTER II-- AWARDS FOR COST SAVINGS DISCLOSURES" UNDER SECTION 1703 OF THE OMNIBUS BUDGET RECONCILIATION ACT OF 1981. THE DRAFTING ERROR MAY HAVE OCCURRED BECAUSE THE NEW SUBCHAPTER II WAS ENACTED AS PART OF TITLE XVII OF THE OMNIBUS ACT. IN ANY EVENT, IT IS OUR OPINION THAT THE CLEAR CONGRESSIONAL INTENT, AS SHOWN IN THE QUOTED CONFERENCE REPORT, IS CONTROLLING OVER THE DRAFTING ERROR CONTAINED IN THE STATUTORY LANGUAGE.

THERE IS AMPLE AUTHORITY FOR THIS APPROACH. IN CASES SIMILAR TO THIS CASE, FEDERAL COURTS HAVE ALLOWED THE EXPRESSED INTENTION OF CONGRESS OR A STATE LEGISLATURE TO PREVAIL OVER THE ERRONEOUS LANGUAGE OF A STATUTE. SEE SOUTHEASTERN FINANCIAL CORP. V. SMITH, 397 F.SUPP. 649 (D. ALA. 1975); RONSON PATENTS CORP. V. SPARKLETS DEVICES, INC., 102 F.SUPP. 123 (E.D. MO. 1951); FLEMING V. SALEM BOX CO., 38 F.SUPP. 997 (D. ORE. 1940).

IN FLEMING, THE COURT REFUSED TO ACCEPT AT FACE VALUE A SPECIFIC REFERENCE IN SECTION 17 OF THE FAIR LABOR STANDARDS ACT OF 1938 TO SECTION 20 OF THE ANTI-TRUST ACT. AFTER EXAMINING THE LEGISLATIVE HISTORY OF THE FAIR LABOR STANDARDS ACT, THE COURT CONCLUDED THAT:

IT IS CERTAIN THAT A MISTAKE WAS MADE IN THE SUBSTITUTION OF THE FIGURES AND THAT THE INTENTION WAS TO REFER TO SECTION 17 OF THE ANTI TRUST ACT. A PALPABLE CLERICAL ERROR CLEARLY SHOWN SHOULD NOT OVERRIDE LEGISLATIVE INTENTION. 38 F.SUPP. AT 998.

IN RONSON, THE DEFENDANT MOVED TO DISMISS A PATENT INFRINGEMENT SUIT ON THE GROUND THAT A PRIVATE ACT OF CONGRESS EXTENDING PLAINTIFFS PATENT FOR 7 YEARS WAS INEFFECTIVE BECAUSE THE ACT HAD INCORRECTLY SPECIFIED THE REISSUE DATE OF THE PATENT AS "DECEMBER 12, 1923." THE CORRECT DATE OF REISSUE WAS DECEMBER 12, 1933. IN DENYING DEFENDANT'S MOTION, THE COURT OBSERVED THAT:

WE UNDERSTAND THE LAW TO BE, IF THE ERROR IN A LEGISLATIVE ACT IS APPARENT ON THE FACE OF THE ACT AND CAN BE CORRECTED BY OTHER LANGUAGE OF THE ACT, IT IS NOT FATAL. THE RULE IS STATED IN 59 C.J. 991: "MERE VERBAL INACCURACIES, OR ERRORS IN STATUTES IN THE USE OF WORDS, NUMBERS, GRAMMAR, PUNCTUATION, OR SPELLING, WILL BE CORRECTED BY THE COURT, WHENEVER NECESSARY TO CARRY OUT THE INTENTION OF THE LEGISLATURE AS GATHERED FROM THE ENTIRE ACT. IF THE LEGISLATIVE INTENT IS CLEAR, IT MUST BE GIVEN EFFECT REGARDLESS OF INACCURACIES OF LANGUAGE. ***" 102 F.SUPP. AT 124; ACCORD, J. SUTHERLAND, STATUTORY CONSTRUCTION SECS. 47.36 AND 47.37 (4TH ED. SANDS 1973).

CLERICAL OR OTHER ERRORS IN LEGISLATION ARE ORDINARILY CONSTRUED SO AS TO GIVE EFFECT TO A DEMONSTRATED LEGISLATIVE PURPOSE. A CLEAR EXPOSITION OF THE LIMITED SCOPE OF THE "PLAIN MEANING RULE" IS FOUND IN THE FOLLOWING EXCERPT FROM UNITED STATES V. AMERICAN TRUCKING ASSOCIATIONS, INC., 310 U.S. 534, 543-544 (1940):

THERE IS, OF COURSE, NO MORE PERSUASIVE EVIDENCE OF THE PURPOSE OF A STATUTE THAN THE WORDS BY WHICH THE LEGISLATURE UNDERTOOK TO GIVE EXPRESSION TO ITS WISHES. OFTEN THESE WORDS ARE SUFFICIENT IN AND OF THEMSELVES TO DETERMINE THE PURPOSE OF THE LEGISLATION. IN SUCH CASES WE HAVE FOLLOWED THEIR PLAIN MEANING. WHEN THAT MEANING HAS LED TO ABSURD OR FUTILE RESULTS, HOWEVER, THIS COURT HAS LOOKED BEYOND THE WORDS TO THE PURPOSE OF THE ACT. FREQUENTLY, HOWEVER, 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" THIS COURT HAS FOLLOWED THAT PURPOSE, RATHER THAN THE LITERAL WORDS. WHEN AID TO CONSTRUCTION OF THE MEANING OF WORDS, AS USED IN THE STATUTE, IS AVAILABLE, THERE CERTAINLY CAN BE NO "RULE OF LAW" WHICH FORBIDS ITS USE, HOWEVER CLEAR THE WORDS MAY APPEAR ON "SUPERFICIAL EXAMINATION." *** EMPHASIS SHOULD BE LAID, TOO, UPON THE NECESSITY FOR APPRAISAL OF THE PURPOSES AS A WHOLE OF CONGRESS IN ANALYZING THE MEANING OF CLAUSES OR SECTIONS OF GENERAL ACTS. A FEW WORDS OF GENERAL CONNOTATION APPEARING IN THE TEXT OF STATUTES SHOULD NOT BE GIVEN A WIDE MEANING, CONTRARY TO A SETTLED POLICY, "EXCEPTING AS A DIFFERENT PURPOSE IS PLAINLY SHOWN." (FOOTNOTES OMITTED.)

CASES APPLYING THESE PRINCIPLES, OFTEN IN RELIANCE UPON AMERICAN TRUCKING, ARE NUMEROUS. THUS, THOUGH A STATUTORY PROVISION MAY BE THOUGHT LITERALLY UNAMBIGUOUS IN ISOLATION, WE NONETHELESS SHOULD CONSIDER THE LEGISLATION AS A WHOLE AND MAY ALSO LOOK TO ITS LEGISLATIVE HISTORY IN DETERMINING ITS PURPOSE AND ITS PROPER CONSTRUCTION.

INDISPUTABLY, THE PURPOSE OF THE EXPIRATION OF AUTHORITY LANGUAGE OF 5 U.S.C. SEC. 4514, ENACTED SIMULTANEOUSLY WITH AND PLACED IN THE SAME SUBCHAPTER AS THE AWARDS FOR COST SAVINGS DISCLOSURES, WAS LIMITED TO TERMINATING THE COST SAVINGS DISCLOSURE AWARDS AUTHORITY AFTER 3 YEARS. UNDOUBTEDLY, THAT PROVISION'S REFERENCE TO "TITLE" RATHER THAN "SUBCHAPTER" WAS SIMPLY A LEGISLATIVE INADVERTENCE OR MISTAKE. A CARDINAL RULE OF STATUTORY CONSTRUCTION IS TO "ASCERTAIN FROM THE ENTIRE STATUTE THE INTENTION TO BE ACCOMPLISHED BY THE ENACTMENT. WHEN THAT INTENTION IS CLEAR IT SHOULD BE CARRIED OUT, EVEN THOUGH IT MAY BE NECESSARY TO STRIKE OUT OR INSERT CERTAIN WORDS." PRESSMAN V. STATE TAX COMMISSION, 102 A.2D 821 (MD. 1954).

WE HAVE HERE A SITUATION WHERE A CONGRESSIONAL INTENTION, OTHERWISE CLEAR, WAS IN PART MISTAKENLY OR INACCURATELY STATED. UNDER SUCH CIRCUMSTANCES COURTS HAVE ALLOWED THE SUBSTITUTION OF LANGUAGE IN ORDER TO CARRY OUT THE DEMONSTRABLE LEGISLATIVE INTENTION, OBSERVING, HOWEVER, WHEN DOING SO, THAT THIS TECHNIQUE OF CONSTRUCTION IS TO BE EXERCISED WITH CAUTION. SEE 2A SUTHERLAND, STATUTORY CONSTRUCTION, SEC. 47-36 (4TH ED. 1973).

ACCORDINGLY, FOR THE REASONS GIVEN ABOVE, WE CONCLUDE THAT THE LANGUAGE OF 5 U.S.C. SEC. 4514 DOES NOT AFFECT ANY OF THE AWARD PROVISIONS FOUND IN TITLE 5, U.S.C. OTHER THAN THE PROVISIONS FOR AWARDS FOR COST SAVINGS DISCLOSURES FOUND IN 5 U.S.C. SECS. 4511 4514.