B-230595, Oct 12, 1988, 68 Comp.Gen. 19

B-230595: Oct 12, 1988

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

Miscellaneous Topics - National Security/International Affairs - Service academies - Retroactive degrees - Authority - Statutory interpretation The authority of the United States Merchant Marine Academy to confer retroactive bachelor of science degrees on graduates of the Academy who had graduated before the Academy was accredited and who otherwise have met the Academy's requirement for that degree was not repealed by implication upon enactment of the Maritime Education and Training Act of 1980. Repeals by implication are generally disfavored unless the earlier and later statutes are irreconcilable. There is no conflict between the statutory provision enacted in 1956 granting the Academy the authority to award retroactive degrees and the Maritime Education and Training Act of 1980.

B-230595, Oct 12, 1988, 68 Comp.Gen. 19

Miscellaneous Topics - National Security/International Affairs - Service academies - Retroactive degrees - Authority - Statutory interpretation The authority of the United States Merchant Marine Academy to confer retroactive bachelor of science degrees on graduates of the Academy who had graduated before the Academy was accredited and who otherwise have met the Academy's requirement for that degree was not repealed by implication upon enactment of the Maritime Education and Training Act of 1980. Repeals by implication are generally disfavored unless the earlier and later statutes are irreconcilable. In this case, there is no conflict between the statutory provision enacted in 1956 granting the Academy the authority to award retroactive degrees and the Maritime Education and Training Act of 1980.

The Honorable Michael Bilirakis

House of Representatives:

This opinion is in response to your letter of February 8, 1988, requesting that we determine the extent of the authority of the United States Merchant Marine Academy to confer retroactive degrees on former graduates of the Academy. As stated in your letter, it is the position of the Maritime Administration (MARAD) that the Academy's authority to grant retroactive degrees was repealed upon enactment of the Maritime Education and Training Act of 1980 and that new legislation would therefore be necessary to restore such authority. We disagree with MARAD's position. For the reasons set forth hereafter, we conclude that the Academy's statutory authority to grant bachelor of science degrees to former graduates of the Academy, who graduated before the Academy was accredited and who otherwise have met the Academy's requirements for that degree, has not been repealed.

BACKGROUND

The Academy began to train officers for the United States merchant marine in 1938. In 1946, legislation was enacted to provide that once the Academy was accredited by a recognized college accrediting agency, the Superintendent of the Academy could confer the degree of bachelor of science upon graduates of the Academy. See Act of August 9, 1946, ch. 932, 60 Stat. 968. The 1946 Act accomplished this objective by amending an earlier statute, which authorized the Superintendent of the United States Naval Academy, the United States Military Academy, and the United States Coast Guard Academy to confer bachelor of science degrees upon graduates of those Academies, by adding the Merchant Marine Academy to that list. See Act of May 25, 1933, ch. 37, 48 Stat. 73. The 1946 Act also authorized the Superintendent of the Academy to confer the bachelor of science degree upon "other living graduates" of the Academy who had graduated before accreditation and met the requirements for such a degree.

The purpose of the 1946 Act, as set forth in the report of the Senate Commerce Committee, was as follows:

"The purpose of the bill is to authorize the conferring of the degree of bachelor of science upon graduates of the United States Merchant Marine Academy. It is a further amendment to the act of May 25, 1943, which relates to the conferring of degrees upon graduates of the Naval Academy, Military Academy, and Coast Guard Academy. The addition of the Merchant Marine Academy completes the list of Federal service academies authorized to grant degrees, and provides for an equal status among the academies in this respect.

"The bill also provides for the conferring of the degree upon such other living graduates as shall have met the requirements established by the United States Maritime Commission. This is in agreement with authority granted in the case of the other Federal service academies and is designed to permit the conferring of the degree upon those past graduates who shall have met the requirements for such degree." H.R. Rep. No. 1790, 79th Cong., 2d Sess., reprinted in 1946 U.S. Code Cong. & Ad. News 1502, 1503.

The authority of the Superintendent of the Academy under this provision to confer the bachelor of science degree upon new graduates (those graduating after accreditation) and former graduates of the Academy (those who graduated before accreditation) was codified at 46 U.S.C. Sec. 1126a (1952 ed.).

In 1956, new legislation was enacted which repealed 46 U.S.C. Sec. 1126a and replaced it with two new provisions. See Act of August 10, 1956, ch. 1041, Secs. 34-35, 70A Stat. 634 (1956 Act). Section 34 of the 1956 Act, which was codified at 46 U.S.C. Sec. 1126a-1 (1976 ed.), authorized the Superintendent of the Academy, under conditions prescribed by the Secretary of Commerce, to confer the bachelor of science degree upon new graduates of the Academy. Section 35 of the 1956 Act, which was not codified in the United States Code but was referred to in an historical note under 46 U.S.C. Sec. 1126a-1, authorized the Superintendents of the Military Academy, the Naval Academy, and the Merchant Marine Academy, under conditions prescribed by the Secretaries of the Army, the Navy, and the Department of Commerce, respectively, to confer bachelor of science degrees upon "living graduates" of those Academies who graduated before the respective Academies were accredited and who met the Academies' requirements for the degree.

In 1980, the Maritime Education and Training Act of 1980 (1980 Act) (Pub. L. No. 96-453, 94 Stat. 1977), was enacted "to amend the Merchant Marine Act, 1936, to revise and reenact the laws pertaining to the United States Merchant Marine Academy and to State maritime academies and for other maritime education and training purpose." The 1980 Act amended the Merchant Marine Act, 1936 (1936 Act), by adding a new Title XIII to the 1936 Act which, in addition to numerous other changes, replaced section 34 of the 1956 Act, with the following new provision:

"The Superintendent of the Academy may confer the degree of bachelor of science upon any individual who has met the conditions prescribed by the Secretary and who, if a citizen of the United States, has passed the examination for a merchant marine officer's license. No individual may be denied a degree under this subsection because the individual is not permitted to take such examinations solely because of physical disqualification." Pub. L. No. 96-453, Sec. 1303(g), 46 U.S.C. App. Sec. 1295b(g).

The report of the House Committee on Merchant Marine and Fisheries explains the purpose of this provision as follows:

"Section 1303(g) provides that the Superintendent of the U.S. Merchant Marine Academy may confer a Bachelor of Science degree upon a graduate, and is generally the provision of law set forth in 46 U.S.C. Sec. 1126a- 1. The subsection also provides that if such a graduate is a citizen of the United States, such individual must first have passed the appropriate U.S. Coast Guard license exam. ... Finally, the subsection provides that no individual may be denied a degree because of physical disqualification from taking the U.S. Coast Guard exam."

MARAD's Position

While section 35 of the 1956 Act was not expressly repealed or otherwise referred to in any way in the 1980 Act, it is MARAD's position that since the 1980 revision of the federal laws pertaining to maritime education and training was intended to be "comprehensive," the authority of the Superintendent of the Academy to award "retroactive" degrees, that had been set forth in section 35 of the 1956 Act and which is not restated anywhere in the 1980 Act, was repealed by implication. In this respect, MARAD furnished us with a copy of an internal memorandum, dated June 3, 1985, from its Assistant Chief Counsel for Administration to the Deputy Chief Counsel, which reads as follows:

"By enactment of the Maritime Education and Training Act, 26 U.S.C. Sec. 1126a-1 was repealed; therefore, it can be assumed that a section providing for similar subject matter (conferral of degree) would have been included as a part of this repeal had it not been overlooked. In this case, there is no evidence that Section 35, which had survived until the Enactment of the Maritime Education and Training Act, was considered. There is no mention of its provisions in the House Report which was the only legislative report accompanying the bill. Therefore, the authority to confer retroactive degrees expired in 1980 with enactment of Title XIII of the Merchant Marine Act."

While MARAD took the same position in a letter to our Office, dated May 17, 1988, MARAD did indicate that our opinion regarding this issue would be of "great assistance" to it in deciding whether its interpretation of these statutes was correct.

ANALYSIS

It is clear that prior to passage of the 1980 Act, section 35 of the 1956 Act gave the Superintendent of the Academy express authority to grant bachelor of science degrees to graduates of the Academy who had graduated before the Academy was accredited. Thus, the only issue we must resolve is whether the 1980 Act effectively repealed section 35 of the 1956 Act, either directly or by implication. /1/

Clearly, the 1980 Act did not expressly repeal section 35 of the 1956 Act. Section 3 of the 1980 Act did specifically repeal a number of then- existing provisions of law relating to the Academy, including section 34 of the 1956 Act, which was replaced by the newly enacted 46 U.S.C. App. Sec. 1295b(g). Section 35 was not included in the list of repealed provisions. /2/

Thus, the resolution of this question rests on MARAD's argument that the comprehensive nature of the revisions to the federal laws pertaining to maritime education and training contained in the 1980 Act indicates a congressional "intent to repeal all former laws" upon the subject, including section 35 of the 1956 Act. As explained hereafter, we do not agree with MARAD's position.

First, the concept of repeal by implication is not consistent, in our view, with the language in section 3 of the 1980 Act which specifically repealed various statutory provisions relating to the Academy (including section 34 of the 1956 Act). Certainly, if Congress intended that the mere passage of the 1980 Act would repeal section 35 of the 1956 Act, as well as all other statutory provisions relating to the Academy, there would have been no reason to include a provision containing express repeals. Conversely, if Congress had intended to repeal section 35, it could easily have included that provision in the list of repealed provisions set forth in section 3 of the 1980 Act.

Second, repeals by implication have consistently been disfavored. For example, the Supreme Court has recognized on numerous occasions the "cardinal rule ... that repeals by implication are not favored." Posadas v. National City Bank, 296 U.S. 497, 503 (1936). In a more recent case, the Supreme Court quoted that cardinal rule and then went on to say the following:

"In the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable." Morton v. Mancori, 417 U.S. 535, 549 (1974). Also see, TVA v. Hill, 437 U.S. 153, 189, 190 (1977).

Decisions of our Office regarding repeals by implication have reached the same conclusion. For example, see 53 Comp.Gen. 853, 856 (1974); 64 Comp.Gen. 143, 145 (1984); and 58 Comp.Gen. 687, 691-692 (1979).

In this case, there are no indications of any legislative intent to repeal section 35 of the 1956 Act, nor is there any irreconcilable conflict between that provision and any of the provisions of the 1980 Act. To the contrary, in our opinion section 35 is consistent with the 1980 Act in general, and section 1303(g) of that Act in particular.

As its legislative history clearly shows, the 1980 Act was enacted for the primary purpose of remedying problems that were then believed to exist with respect to the education and training of merchant marine officers. See H.R. Rep. No. 1139, 96th Cong., 2d Sess. 11-14 (1980). /3/ In our view, there is no reason to assume that this legislative effort to improve and upgrade the education and training of future merchant marine officers provides any indication, implicit or otherwise, of a congressional intent to eliminate the Academy's authority to provide retroactive degrees to former Academy graduates.

Finally, we think it is significant that section 35 of the 1956 Act applies to the Military Academy and the Naval Academy, as well as the Merchant Marine Academy. In his letter to our Office of May 17, 1988, MARAD's Acting Chief Counsel states that MARAD does "not argue for repeal of section 35 as it applies to others." Thus, it is MARAD's view that the 1980 Act repealed the authority of the Academy under section 35 to award retroactive degrees, while leaving intact the authority of the Military and Naval Academies under that same section to award retroactive degrees to their former graduates. Such a result would not be reasonable, in our view.

As stated previously, the Academy was originally granted authority to award degrees to new and former graduates in 1946. See Act of August 9, 1946, ch. 932, 60 Stat. 968. The purpose of the legislation was to place the Academy on "an equal status" with the other Academies. See H.R. Rep. No. 1790, 79th Cong., 2d Sess. When the 1956 Act was enacted, replacing the former provision with two new provisions - section 34, which was exclusively concerned with the award of degrees to new graduates of the Academy, and section 35 which authorized all three service academies to award retroactive degrees to their former graduates-- the Congress obviously intended to preserve the equal status of the three academies. There is nothing in the 1980 Act suggesting an intent to return the Merchant Marine Academy to an "inferior" position compared to the other service academies. Before concluding our consideration of this matter, there is another issue we should address. Approximately 1 year after the 1980 Act was enacted, legislation was passed which transferred MARAD from the Department of Commerce to the Department of Transportation. See Maritime Act of 1981 (Maritime Act) Pub. L. No. 97-31, 95 Stat. 151, (1981). In his letter of May 17, 1988, MARAD's Acting Chief Counsel states that while the Maritime Act amended specific provisions of section 1303 of the 1980 Act, the "retroactive degree provision was not addressed at all." The Chief counsel's letter continues as follows:

"... Thus, if one takes the position that such authority was not repealed, then the Secretary of Commerce, not the statutorily designated Secretary of Transportation, retained the power to confer retroactive degrees from an institution for which he or she has no responsibility. is reasonable to conclude that the absence of any amendment to the retroactive degree statute reflected the repealer of that authority one year earlier."

We disagree with MARAD's position. Section 3 of the Maritime Act, 46 U.S.C. App. Sec. 1602, specifically transfers "all functions, power, and duties relating to the Maritime Administration of the Secretary of Commerce" to the Secretary of Transportation. In addition, section 5 of the Maritime Act, 46 U.S.C. Sec. 1604, provides that when carrying out "any function transferred by this Act the Secretary of Transportation may exercise any authority available by law to the Secretary of Commerce with respect to such functions ... ." Together these two provisions are sufficient to transfer all of the authority of the Secretary of Commerce with respect to the Academy, to the Secretary of Transportation. Thus, we do not view the omission of section 35 of the 1956 Act from the list of "conforming amendments" in which statutory references to the "Secretary of Commerce" were changed to the "Secretary of Transportation" (or other similar changes were made), as having any legal significance. conforming amendment is just that-- an amendment to existing statutory language so that it conforms to a substantive modification of the statute that has already been made. The real basis for the transfer of the authority of the Secretary of Commerce concerning MARAD and thus the Academy, to the Secretary of Transportation, is set forth in sections 3 and 5 of the Maritime Act. /4/

In accordance with the foregoing, it is our view that the authority of the Superintendent of the Academy under section 35 of the 1956 Act to confer retroactive degrees is still in effect, although the responsibility to prescribe the conditions under which the Superintendent can award such degrees has been transferred to the Secretary of Transportation. Under 46 U.S.C. App. Sec. 1608 all rules and regulations regarding any of the transferred functions that were in force when the Maritime Act took effect, including any rules pertaining to the award of retroactive degrees, shall continue in effect until modified, superseded, or terminated. Thus, unless and until the Secretary of Transportation issues new rules and regulations setting forth the conditions under which retroactive degrees can be awarded to former graduates the old rules would remain in effect.

We trust that this opinion is responsive to your inquiry. Unless you release it earlier, this opinion will be made available to the public 30 days from today.

/1/ Since it is our conclusion that section 35 of the 1956 Act was not repealed, we do not have to address the argument raised in your letter that the Academy was granted new authority in section 1303(g) of the 1980 Act, 46 U.S.C. App. Sec. 1295b(g), to grant retroactive degrees to former graduates.

/2/No significance should be accorded the fact that section 35 of the 1956 Act was referred to in an historical note under 46 U.S.C. Sec. 1126a- 1, the codified version of section 34 of the 1956 Act. The repeal of a substantive provision of law codified in a particular section of the United States Code does not repeal a separate statutory provision merely because that provision is referred to in an historical note under the section of the Code that was repealed.

/3/ Also see, Oversight Report on the Federal Government's Role in Merchant Marine Officer Education, Ad Hoc Select Subcomm. on Maritime Education and Training, House Comm. on Merchant Marine and Fisheries, Serial No. 95-E, 95th Cong., 2d Sess.

/4/ As for the contention that the absence in the Maritime Act of any amendment to section 35 of the 1956 Act supports the theory that that provision was repealed 1 year earlier, we note that section 12 of Maritime Act contains numerous amendments to statutory provisions regarding MARAD and the Academy that had already been repealed before the Maritime Act was enacted. For example, subsection 12(77) of the Maritime Act amended section 34 of the 1956 Act, by substituting the Secretary of Transportation for the Secretary of Commerce, even though that provision had been expressly repealed 1 year earlier. Thus, it is our view that any reliance on whether a particular provision is or is not included in the list of conforming amendments set forth in section 12 of the Maritime Act for the purpose of determining whether that provision had been repealed previously or remained in effect, is without justification.