B-184947, AUG 9, 1977, 56 COMP GEN 870

B-184947, AUG 9, 1977, 56 COMP GEN 870

VESSELS - CREWS - COMPENSATION - LIMITATION ON PAY FIXED BY ADMINISTRATIVE ACTION AGENCY QUESTIONS WHETHER PAY OF CREWS OF VESSELS SET UNDER 5 U.S.C. 5348 (SUPP. V, 1975) IS SUBJECT TO CEILING OF GRADE GS-19 AS PROVIDED UNDER 5 U.S.C. 5363 (1970). SINCE WE FIND THAT PAY FOR CREWS OF VESSELS IS FIXED BY ADMINISTRATIVE ACTION, WE HOLD THAT SUCH PAY IS SUBJECT TO SECTION 5363 AND MAY NOT EXCEED THE RATE FOR GRADE GS-18.

IN THE MATTER OF MARINE OFFICERS - LIMITIATION ON PAY FOR CREWS OF VESSELS, AUGUST 9, 1977:

THIS ACTION IS IN RESPONSE TO A REQUEST FOR AN ADVANCE DECISION FROM AN AUTHORIZED CERTIFYING OFFICER OF THE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION (NOAA), DEPARTMENT OF COMMERCE, REFERENCE AD43, DATED SEPTEMBER 15, 1975, CONCERNING WHETHER THE PROVISIONS OF 5 U.S.C. SEC. 5363 (1970) LIMIT THE ANNUAL RATE OF BASIC PAY WHICH NOAA SETS FOR ITS CREWS OF VESSELS UNDER 5 U.S.C. SEC. 5348 (SUPP. V, 1975).

NOAA OPERATES SHIPS WHICH ARE ENGAGED IN OCEANOGRAPHIC AND BIOLOGICAL RESEARCH AND WHICH ARE MANNED BY CIVILIAN EMPLOYEES. IN ADDITION, THE MILITARY SEALIFT COMMAND (MSC), DEPARTMENT OF THE NAVY, OPERATES A FLEET OF SHIPS WHICH PROVIDES LOGISTICAL SUPPORT TO THE NAVY'S BATTLE FLEET, SEAGOING TRANSPORTATION FOR PERSONNEL AND CARGO FOR THE DEPARTMENT OF DEFENSE (DOD), AND SUPPORT FOR SCIENTIFIC RESEARCH PROJECTS AND OTHER PROGRAMS CONDUCTED BY DOD AND OTHER GOVERNMENT AGENCIES. THESE SHIPS OPERATED BY MSC ARE SIMILARLY MANNED ENTIRELY OR IN PART BY CIVILIAN MARINE EMPLOYEES.

THE SUBMISSION FROM NOAA STATES THAT, IN ACCORDANCE WITH THE PROVISIONS OF 5 U.S.C. SEC. 5348, NOAA HAS ESTABLISHED A PAY PLAN WHICH USES PRIVATE SECTOR MARITIME JOBS AS BENCH MARKS FOR SIMILAR POSITIONS WITH NOAA AND FOR OCCUPATIONS AND JOBS WITH NOAA WHICH ARE NOT FOUND IN THE PRIVATE SECTOR. THE AGENCY THEN ADJUSTS ITS PAY SCHEDULE BASED UPON THE PREVAILING PRIVATE SECTOR MARITIME PAY RATE IN ACCORDANCE WITH 5 U.S.C. SEC. 5348, BUT SUBJECT TO AN OVERALL MAXIMUM LIMITATION OF THE MAXIMUM RATE FOR GRADE GS-18 (CURRENTLY $47,500) AS PROVIDED IN 5 U.S.C. SEC. 5363. HOWEVER, MSC HAS NOT APPLIED THIS PAY CEILING TO ITS MARINE EMPLOYEES, AND NOAA ASKS WHETHER THE LIMITATION IN SECTION 5363 APPLIES TO SALARIES CONSTRUCTED UNDER SECTION 5348.

THE STATUTES CITED ABOVE PROVIDE, IN PERTINENT PART:

5 U.S.C. SEC. 5348:

(A) EXCEPT AS PROVIDED BY SUBSECTIONS (B) AND (C) OF THIS SECTION, THE PAY OF OFFICERS AND MEMBERS OF CREWS OF VESSELS EXCEPTED FROM CHAPTER 51 OF THIS TITLE BY SECTION 5102(C)(8) OF THIS TITLE SHALL BE FIXED AND ADJUSTED FROM TIME TO TIME AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES AND PRACTICES IN THE MARITIME INDUSTRY.

5 U.S.C. SEC. 5363:

EXCEPT AS PROVIDED BY THE GOVERNMENT EMPLOYEES SALARY REFORM ACT OF 1964 (78 STAT. 400) AND NOTWITHSTANDING THE PROVISIONS OF OTHER STATUTES, THE HEAD OF AN EXECUTIVE AGENCY OR MILITARY DEPARTMENT WHO IS AUTHORIZED TO FIX BY ADMINISTRATIVE ACTION THE ANNUAL RATE OF BASIC PAY FOR A POSITION OR EMPLOYEE MAY NOT FIX THE RATE AT MORE THAN THE MAXIMUM RATE FOR GS-18. THIS SECTION DOES NOT IMPAIR THE AUTHORITIES PROVIDED BY -

(1) SECTION 121 OF TITLE 2, CANAL ZONE CODE (76A STAT. 15); (2) SECTIONS 248, 481, AND 1819 OF TITLE 12; (3) SECTION 831B OF TITLE 16; OR (4) SECTIONS 403A-403C, 403E-403H, AND 403J OF TITLE 50.

IN RESPONSE TO OUR REQUESTS FOR COMMENTS, THE DEPUTY ASSISTANT SECRETARY OF DEFENSE FOR MANPOWER AND RESERVE AFFAIRS (CIVILIAN PERSONNEL POLICY), BY LETTER DATED OCTOBER 4, 1976, ARGUES THAT THE PAY SYSTEM APPLICABLE TO CIVILIAN MARINE EMPLOYEES IS A STATUTORY PAY STEM AND THAT THE GRADE GS-18 PAY CEILING ON ADMINISTRATIVE PAY STEMS IS INAPPLICABLE. THE REPORT FROM DOD ANALOGIZES THE PAY SYSTEM FOR CREWS OF VESSELS TO THAT FOR PREVAILING RATE EMPLOYEES AND CITES A DECISION OF OUR OFFICE (54 COMP.GEN. 305 (1974)) WHICH HELD THAT AN ADJUSTMENT OF WAGE RATES OF PREVAILING RATE EMPLOYEES IS CONSIDERED TO BE A STATUTORY PAY INCREASE. THE DEPARTMENT OF DEFENSE REPORT ARGUES THAT ANY DISCRETION IN THE PAY FOR CREWS OF VESSELS WAS REMOVED WHEN THE PERTINENT PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, SEC. 606, 59 STAT. 304, PROVIDING THAT CREWS OF VESSELS MAY BE PAID IN ACCORDANCE WITH THE WAGE PRACTICES OF THE MARITIME INDUSTRY WERE REPEALED AND WERE REPLACED BY THE ENACTMENT OF THE CLASSIFICATION ACT OF 1949, PUBLIC LAW 81-429, SEC. 202(8), 63 STAT. 955 (CURRENTLY U.S.C. SEC. 5348), WHICH HAS REMAINED VIRTUALLY UNCHANGED SINCE ITS ENACTMENT AND WHICH PROVIDES THAT CREWS OF VESSELS SHALL BE PAID IN ACCORDANCE WITH THE WAGE PRACTICES OF THE MARITIME INDUSTRY.

THE REPORT FROM DOD ALSO CITES FURTHER EXAMPLES OF THE ABSENCE OF DISCRETION ON THE PART OF MSC, AND IT CITES TWO DECISIONS OF OUR OFFICE, 30 COMP.GEN. 356 (1951) AND 30 ID. 158 (1950), AND THE COURT OF CLAIMS DECISION IN BLAHA V. UNITED STATES, 511 F.2D 1165 (CT.CL. 1975) (DISCUSSED BELOW) IN FURTHER SUPPORT OF ITS POSITION. THE REPORT CONCLUDES:

IN SUMMARY, 5 U.S.C. 5348 PRESCRIBES AND DEFINES THE DUTIES TO BE PERFORMED WITH SUCH PRECISION AND CERTAINTY AS TO LEAVE NOTHING TO THE EXERCISE OF DISCRETION OR JUDGMENT. THEREFORE, LIKE THE PAY SYSTEM PRESCRIBED IN PL 92-392, THE CIVILIAN MARINE SYSTEM MUST BE CONSIDERED AS A STATUTORY PAY STEM. ACCORDINGLY, THE SALARY LIMITS APPLICABLE TO ADMINISTRATIVE PAY SYSTEMS CANNOT BE APPLIED.

THE GENERAL COUNSEL OF THE CIVIL SERVICE COMMISSION (CSC) ALSO RESPONDED BY LETTER DATED MARCH 24, 1977, TO OUR REQUEST FOR COMMENTS, AND THE CSC AGREES WITH THE DOD POSITION THAT THE LIMITATION IN SECTION 5363 DOES NOT APPLY TO PAY SET UNDER SECTION 5348. THE COMMISSION'S LETTER EMPHASIZES THAT THE LANGUAGE CHANGE IN THE STATUTE FROM THE PERMISSIVE "MAY" IN THE 1945 ACT TO THE MANDATORY "SHALL" IN THE 1949 ACT EVIDENCES STRONG CONGRESSIONAL INTENT THAT CREWS OF GOVERNMENT VESSELS ALWAYS BE PAID AT THE PREVAILING INDUSTRY RATE. THE LETTER STATES THAT TO IMPOSE A LIMITATION WOULD VIOLATE A PRINCIPLE OF STATUTORY INTERPRETATION THAT STATUTES ARE ENFORCED IN SUCH A MANNER AS TO ACHIEVE THEIR OVERRIDING PURPOSE, AND THAT IF CONGRESS HAD INTENDED TO SPECIFICALLY LIMIT THE PAY OF CREWS OF VESSELS IT WOULD HAVE DONE SO IN 1949 RATHER THAN IN 1964 WHEN SECTION 5363 WAS ENACTED. THE GENERAL COUNSEL ALSO POINTS TO ANOTHER PRINCIPLE OF STATUTORY CONSTRUCTION IN THAT WHERE THERE IS AN APPARENT CONFLICT BETWEEN TWO STATUTES, EFFECT IS TO BE GIVEN TO ALL STATUTES ON THE SAME SUBJECT AND THE STATUTES ARE TO BE DEEMED CAPABLE OF CO- EXISTENCE. IN ADDITION, THE LETTER NOTES THAT REPEALS BY IMPLICATION ARE NOT FAVORED IN STATUTORY CONSTRUCTION, AND THE GENERAL COUNSEL ARGUES THAT:

IF SECTION 5363 IS PERMITTED TO LIMIT THE OPERATION OF THE LONGSTANDING REQUIREMENT OF SECTION 5348 THAT THE COMPENSATION OF CREWS OF VESSELS BE IN ACCORD WITH THE PREVAILING RATES AND PRACTICES IN THE MARITIME INDUSTRY, SECTION 5348 WILL HAVE BEEN SUBSTANTIALLY REPEALED BY IMPLICATION, IN VIOLATION OF THE ABOVE RULE. IN VIEW OF THE STRONG CONGRESSIONAL MANDATE EVIDENCED BY THE PLAIN WORDS IN SECTION 5348, AS HAS BEEN PREVIOUSLY DISCUSSED, IT IS HARDLY LIKELY CONGRESS WOULD HAVE INTENDED THE IMPLIED REPEAL OF SECTION 5348, MERELY BY ENACTMENT OF SECTION 5363.

FINALLY, THE CSC LETTER NOTES THAT SECTION 5348 IS A SPECIAL ACT, SECTION 5363 A GENERAL ACT, AND THAT WHERE THERE ARE GENERAL AND SPECIAL ACTS ON THE SAME SUBJECT WHICH CANNOT BE HARMONIZED, THE SPECIAL OR SPECIFIC ACT WILL PREVAIL OVER THE GENERAL.

WE HAVE ALSO RECEIVED COMMENTS FROM TWO UNIONS REPRESENTING CREWS OF GOVERNMENT VESSELS, THE MARINE ENGINEERS' BENEFICIAL ASSOCIATION (MEBA) AND THE MASTERS, MATES AND PILOTS UNION (MM&P). THE LETTER FROM MEBA STATES THAT UNDER SECTION 5348 AGENCIES ARE OBLIGATED TO PAY CREWS OF VESSELS THE PREVAILING RATES AND PRACTICES IN THE MARITIME INDUSTRY UNLESS OR UNTIL SECTION 5348 IS AMENDED BY CONGRESS. THE LETTER FROM THE WASHINGTON COUNSEL TO MM&P ARGUES THERE IS NO LIMITATION ON PAY SET UNDER SECTION 5348 AND THAT THE DECISION IN BLAHA SUPPORTS THAT ARGUMENT.

OUR PRIOR DECISIONS HAVE HELD THAT UNDER SECTION 5348 THERE MUST BE A TWO -PART DETERMINATION (1) THAT WHAT IS SOUGHT IS A RATE OR PRACTICE IN THE MARITIME INDUSTRY AND (2) THAT IT IS CONSISTENT WITH THE PUBLIC INTEREST. SEE 50 COMP.GEN. 93 (1970) AND 30 ID. 356, SUPRA. THEREFORE, WE HELD THAT THIS TWO-PART DETERMINATION MUST BE MADE BY THE AGENCY HEAD REGARDING THE ENTITLEMENT OF CREWS OF VESSELS TO RETROACTIVE WAGE ADJUSTMENTS (50 ID. 93) OR TO AN "AREA BONUS" (30 ID. 356). SEE ALSO HILLE AND REILLY, B-187972, MARCH 25, 1977. IN ADDITION, THE COURT OF CLAIMS HAS REPEATEDLY HELD THAT THERE IS BROAD GOVERNMENT DISCRETION IN THE FIXING OF PAY UNDER SECTION 5348. SEE BLAHA, AT 1167 AND CASES CITED THEREIN. THE COURT ALSO NOTED IN AMELL V. UNITED STATES, 182 CT.CL. 604, 607 (1968), THAT THE WAGES OF CREWS OF VESSELS "*** ARE NOT SET THROUGH COLLECTIVE BARGAINING NEGOTIATIONS BUT ARE FIXED BY ADMINISTRATIVE ACTION ***" PURSUANT TO THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 AND THE CLASSIFICATION ACT OF 1949 (CURRENTLY 5 U.S.C. SEC. 5348).

IT IS OUR VIEW, THEREFORE, THAT CONGRESS INTENDED AND THE COURTS HAVE INTERPRETED SECTION 5348 TO BE MORE THAN A MECHANISM FOR RUBBER STAMPING MARITIME INDUSTRY WAGE RATES AND PRACTICES. SECTION 5348 PROVIDES A MECHANISM WHEREBY AN AGENCY HEAD MAY FIX WAGES FOR CREWS OF VESSELS ADMINISTRATIVELY WITHOUT BEING BOUND TO THE CONFINES OF THE GENERAL SCHEDULE OR THE TIMETABLES AND PROCESSES IN THE PREVAILING RATE SYSTEM. HOWEVER, ONCE HAVING CONCLUDED THAT WAGES FOR CREWS OF VESSELS ARE FIXED ADMINISTRATIVELY, WE MUST ALSO CONCLUDE THAT THE AUTHORITY OF THE AGENCY HEAD IS LIMITED BY THE PAY CEILING CONTAINED IN SECTION 5363.

THE COMMENTS OF THE GENERAL COUNSEL OF THE CIVIL SERVICE COMMISSION ARE PERTINENT, BUT THERE ARE OTHER RULES OF STATUTORY CONSTRUCTION WHICH HAVE APPLICATION IN THIS SITUATION. FOR EXAMPLE, AS NOTED IN THE CSC LETTER, THE AUTHORITY FOR THE PAYMENT OF CREWS OF VESSELS HAS REMAINED VIRTUALLY UNCHANGED SINCE 1949 WHILE THE LIMITATION IN SECTION 5363 WAS NOT ENACTED UNTIL 1964. HOWEVER, WE ARE MINDFUL OF THE PRINCIPLE OF STATUTORY CONSTRUCTION THAT IF TWO STATUTES ARE IN CONFLICT THE STATUTE ENACTED LATER IN TIME CONTROLS AS A MORE RECENT EXPRESSION OF CONGRESSIONAL INTENT. IN ADDITION, THE PRINCIPLE OF "EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS" WOULD HAVE APPLICATION TO SECTION 5363 SINCE THE STATUTE PROVIDES SPECIFIC EXCLUSIONS FROM COVERAGE FOR CERTAIN EMPLOYEES OF THE TENNESSEE VALLEY AUTHORITY, CENTRAL INTELLIGENCE AGENCY, FEDERAL RESERVE BOARD, AND OTHER ORGANIZATIONS, AND THE ENUMERATION OF EXCLUSIONS FROM THE OPERATION OF A STATUTE INDICATES THAT IT SHOULD APPLY TO ALL CASES NOT SPECIFICALLY EXCLUDED. SANDS, SUTHERLAND'S STATUTES AND STATUTORY CONSTRUCTION, SECTION 47.23 (4TH ED. 1973).

WITH REGARD TO THE STATEMENT THAT THE PAY SYSTEM FOR CREWS OF VESSELS IS ANALOGOUS TO THAT FOR PREVAILING RATE EMPLOYEES WHICH HAS BEEN INTERPRETED TO BE A STATUTORY PAY SYSTEM (SEE 54 COMP.GEN. 305, SUPRA), WE NOTE THAT CREWS OF VESSELS ARE SPECIFICALLY EXCLUDED FROM COVERAGE UNDER THE PREVAILING RATE SYSTEM AS PROVIDED BY 5 U.S.C. SEC. 5342(B)(3) (SUPP. V, 1975) AND AS EVIDENCED BY THE LEGISLATIVE HISTORY TO PUBLIC LAW 92-392, 86 STAT. 564. SEE H.R. REPT. NO. 92-339, 92D CONG. 1ST SESS. 18-19 (1971) AND S. REPT. NO. 92-791, 92D CONG. 2D SESS. 6 (1972). SEE ALSO HILLE AND REILLY, SUPRA. IN ADDITION, OUR DECISION IN 54 COMP.GEN. 305 MERELY HELD THAT FOR THE PURPOSES OF ENTITLEMENT TO A PERIODIC STEP INCREASE, A WAGE ADJUSTMENT FOR PREVAILING RATE EMPLOYEES UNDER 5 U.S.C. SEC. 5343 (SUPP. V, 1975) IS NOT CONSIDERED AS GRANTED ADMINISTRATIVELY BUT RATHER GRANTED BY STATUTE. WE DO NOT, THEREFORE, MEAN TO IMPLY THAT THE PAY SYSTEM FOR PREVAILING RATE EMPLOYEES IS CONSIDERED TO BE A STATUTORY PAY STEM FOR ALL PURPOSES OR THAT PREVAILING RATE EMPLOYEES ARE NOT SUBJECT TO THE SAME PAY LIMITATION AS CREWS OF VESSELS, 54 COMP.GEN. 305, DISTINGUISHED.

OUR DECISION IN 30 COMP.GEN. 158 (1950) IS ALSO DISTINGUISHABLE FROM THE PRESENT CASE IN THAT IT MERELY HOLDS THAT UNDER THE CLASSIFICATION ACT OF 1949 PANAMA CANAL PILOTS ARE CONSIDERED TO BE OFFICERS OR MEMBERS OF CREWS OF VESSELS WHO MUST BE COMPENSATED UNDER WHAT IS NOW SECTION 5348.

FINALLY, BOTH CSC AND DOD AS WELL AS THE TWO UNIONS WHICH SUBMITTED COMMENTS ON THIS CASE ALL HAVE RELIED UPON THE COURT OF CLAIMS DECISION IN BLAHA, SUPRA, IN SUPPORT OF THE POSITION THAT THERE IS NO LIMITATION ON MARITIME WAGE RATES UNDER SECTION 5348, NO MATTER HOW HIGH THOSE WAGE RATES ARE. IN BLAHA, THE COURT OF CLAIMS HELD THAT IT WAS AN ABUSE OF DISCRETION FOR NOAA TO REFUSE TO PAY A "MONTHLY LEAVE SUPPLEMENT" MERELY BECAUSE THE AGENCY DID NOT CHARACTERIZE THE PAYMENT AS A "RATE OR PRACTICE IN THE MARITIME INDUSTRY." THE COURT ALSO HELD THAT NOAA HAD NOT JUSTIFIED THAT SUCH A PAYMENT WAS NOT CONSISTENT WITH THE PUBLIC INTEREST, AND THE COURT NOTED THAT MSC HAD AGREED TO THESE PAYMENTS. WE BELIEVE THE DECISION IN BLAHA IS NARROW AND DISTINGUISHABLE FROM THE QUESTION PRESENTED IN THIS CASE. THE COURT IN BLAHA DID NOT SAY THAT THE GOVERNMENT MUST ADOPT THE PAY PRACTICES OF THE MARITIME INDUSTRY WITHOUT FURTHER CONSIDERATION, BUT ONLY THAT THE GOVERNMENT CANNOT PICK AND CHOOSE AMONG VARIOUS PAY PRACTICES UNLESS SUCH PRACTICES ARE OUTSIDE THE SCOPE OF SECTION 5348 (SEE AMELL, SUPRA) OR UNLESS THERE IS AN ADEQUATE DETERMINATION THAT SUCH PRACTICES ARE NOT "CONSISTENT WITH THE PUBLIC INTEREST." IN FACT THE COURT NOTED MANY PRIOR DECISIONS INVOLVING SECTION 5348 IN WHICH "*** THE BROAD GOVERNMENT DISCRETION IN FIXING PAY UNDER SECTION 5348 WAS REPEATEDLY UPHELD AGAINST SEAMEN'S CHALLENGES." BLAHA, SUPRA, AT 1167. ACCORDINGLY, WE CONCLUDE THAT PAY FOR CREWS OF VESSELS SET UNDER SECTION 5348 CONSTITUTES PAY FIXED BY ADMINISTRATIVE ACTION AS CONTEMPLATED UNDER SECTION 5363 AND THAT AGENCY HEADS MUST SET PAY RATES UNDER SECTION 5348 SUBJECT TO AN ANNUAL BASIC PAY CEILING OF THE MAXIMUM RATE FOR GRADE GS-18. ACTION SHOULD BE TAKEN TO ADJUST EXISTING PAY RATES TO CONFORM WITH THIS DECISION. ANY PREVIOUS OVERPAYMENTS OF PAY WOULD BE SUBJECT TO WAIVER UNDER 5 U.S.C. SEC. 5584 (SUPP. V. 1975) AND 4 C.F.R. PART 91 (1977).