[Comments on OPM Reporting Requirement Regarding Agency Part-Time Employment Programs]

B-216021, NOV 18, 1986

MISCELLANEOUS TOPICS - FEDERAL ADMINISTRATIVE/LEGISLATIVE MATTERS - ADMINISTRATIVE REPORTS - CONGRESSIONAL SUBMISSION - EXECUTIVE BRANCH PERSONNEL - PART-TIME EMPLOYMENT DIGEST: GENERAL REPORT ON OPM'S ACTIONS IN ADMINISTRATION OF COMPETITIVE SERVICE REQUIRED BY 5 U.S.C. SEC. 1308(A) WAS MEDIUM FOR OMP'S REPORTING TO CONGRESS ON PART-TIME EMPLOYMENT AS REQUIRED BY SECTION 3(A) OF THE FEDERAL EMPLOYEES PART-TIME CAREER EMPLOYMENT ACT OF 1978, AS AMENDED, 5 U.S.C. SEC. 3407. SINCE SUBSEQUENT ENACTMENT OF CONGRESSIONAL REPORTS ELIMINATION ACT OF 1980 AMENDED 5 U.S.C. SEC. 1308 SO AS TO ELIMINATE THE GENERAL ANNUAL REPORT OF 5 U.S.C. SEC. 1308(A), OPM IS NO LONGER REQUIRED TO SUBMIT TO CONGRESS ANNUAL REPORT ON AGENCY PART-TIME PROGRAMS.

THE HONORABLE PATRICIA SCHROEDER:

CHAIRWOMAN, TASK FORCE ON ECONOMIC SECURITY

SELECT COMMITTEE ON CHILDREN, YOUTH, AND FAMILIES

U.S. HOUSE OF REPRESENTATIVES

IN RESPONSE TO YOUR REQUEST OF JULY 29, 1986, WE HAVE EXAMINED WHETHER OPM IS REQUIRED TO SUBMIT TO CONGRESS AN ANNUAL REPORT ON AGENCY PART-TIME PROGRAMS PURSUANT TO SECTION 3(A) OF THE FEDERAL EMPLOYEES PART-TIME CAREER EMPLOYMENT ACT OF 1978 (PART-TIME ACT), AS AMENDED, 5 U.S.C. SEC. 3407. WE LEARNED THAT OPM HAS NOT PROVIDED CONGRESS WITH THIS INFORMATION SINCE 1979.

THE PART-TIME ACT REQUIRES EACH AGENCY TO REPORT BIANNUALLY TO OPM ON ITS PROGRESS (AND ANY IMPEDIMENTS EXPERIENCED) IN MEETING PART-TIME CAREER EMPLOYMENT GOALS. 5 U.S.C. SEC. 3407(A) (1982). THE ACT FURTHER REQUIRES THAT OPM

"SHALL INCLUDE IN ITS ANNUAL REPORT UNDER SECTION 1308 OF THIS TITLE A STATEMENT OF ITS ACTIVITIES UNDER THIS CHAPTER, AND A DESCRIPTION AND EVALUATION OF THE ACTIVITIES OF AGENCIES IN CARRYING OUT THE PROVISIONS OF THIS CHAPTER." 5 U.S.C. SEC. 3407(B) (1982).

AT THE TIME OF ENACTMENT OF THE PART-TIME ACT, 5 U.S.C. SEC. 1308 DESCRIBED THE ANNUAL REPORTS TO BE TRANSMITTED TO CONGRESS AS FOLLOWS:

"SEC. 1308. ANNUAL REPORTS

"(A) THE CIVIL SERVICE COMMISSION (NOW OPM) SHALL MAKE AN ANNUAL REPORT TO THE PRESIDENT FOR TRANSMITTAL TO CONGRESS. THE REPORT SHALL INCLUDE--

"(1) A STATEMENT OF THE COMMISSION'S ACTIONS IN THE ADMINISTRATION OF THE COMPETITIVE SERVICE, THE RULES AND REGULATIONS AND EXCEPTIONS THERETO IN FORCE, THE REASONS FOR EXCEPTIONS TO THE RULES, THE PRACTICAL EFFECTS OF THE RULES AND REGULATIONS, AND ANY RECOMMENDATIONS FOR THE MORE EFFECTUAL ACCOMPLISHMENT OF THE PURPOSES OF THE PROVISIONS OF THIS TITLE THAT RELATE TO THE ADMINISTRATION OF THE COMPETITIVE SERVICE;

"(2) THE RESULTS OF THE INCENTIVE AWARDS PROGRAM AUTHORIZED BY CHAPTER 45 OF THIS TITLE WITH RELATED RECOMMENDATIONS;

"(3) AT THE END OF EACH FISCAL YEAR, THE NAMES, ADDRESSES, AND NATURE OF EMPLOYMENT OF THE INDIVIDUALS ON WHOM THE COMMISSION HAS IMPOSED A PENALTY FOR PROHIBITED POLITICAL ACTIVITY UNDER SECTION 7325 OF THIS TITLE, WITH A STATEMENT OF THE FACTS ON WHICH ACTION WAS TAKEN, AND THE PENALTY IMPOSED; AND

"(4) A STATEMENT, IN THE FORM DETERMINED BY THE COMMISSION WITH THE APPROVAL OF THE PRESIDENT, ON THE TRAINING OF EMPLOYEES UNDER CHAPTER 41 OF THIS TITLE, INCLUDING--

"(A) A SUMMARY OF INFORMATION CONCERNING THE OPERATION AND RESULTS OF THE TRAINING PROGRAMS AND PLANS OF THE AGENCIES;

"(B) A SUMMARY OF INFORMATION RECEIVED BY THE COMMISSION FROM THE AGENCIES UNDER SECTION 4113(B) OF THIS TITLE; AND

"(C) THE RECOMMENDATIONS AND OTHER MATTERS CONSIDERED APPROPRIATE BY THE PRESIDENT OR THE COMMISSION OR REQUIRED BY CONGRESS.

"(B) THE COMMISSION SHALL ANNUALLY PROVIDE AN ANALYSIS TO CONGRESS OF THE ADMINISTRATION AND OPERATION OF CHAPTER 41 OF THIS TITLE (TRAINING PROGRAMS).

"(C) THE COMMISSION SHALL PUBLISH AN ANNUAL REPORT ON THE OPERATION OF SUBCHAPTER III OF CHAPTER 83 OF THIS TITLE (CIVIL SERVICE RETIREMENT), INCLUDING A STATEMENT CONCERNING THE STATUS OF THE CIVIL SERVICE RETIREMENT AND DISABILITY FUND.

"(D) THE COMMISSION SHALL REPORT ANNUALLY TO CONGRESS ON THE OPERATION OF CHAPTER 87 OF THIS TITLE (LIFE INSURANCE).

"(E) THE COMMISSION SHALL REPORT ANNUALLY TO CONGRESS ON THE OPERATION OF CHAPTER 89 OF THIS TITLE (HEALTH INSURANCE)."

SUBSEQUENT TO THE ENACTMENT OF THE PART-TIME ACT, CONGRESS ENACTED THE CONGRESSIONAL REPORTS ELIMINATION ACT OF 1980 (REPORTS ELIMINATION ACT OR ACT), PUB.L. NO. 96-470, 94 STAT. 2237, 2241 (1980), WHICH AMENDED 5 U.S.C. SEC. 1308 IN PART AS FOLLOWS:

"SEC. 121. SECTION 1308 OF TITLE 5, IS AMENDED BY STRIKING OUT SUBSECTIONS (A) AND (B) AND REDESIGNATING SUBSECTIONS (C), (D), AND (E) AS SUBSECTIONS (A), (B), AND (C), RESPECTIVELY."

IN RESPONSE TO OUR REQUEST FOR THEIR VIEWS, OPM'S GENERAL COUNSEL'S OFFICE EXPRESSED ITS BELIEF THAT THE PART-TIME REPORTING DUTY WAS ELIMINATED WHEN THE REPORTS ELIMINATION ACT REPEALED THE REQUIREMENT FOR THE GENERAL ANNUAL REPORT PURSUANT TO 5 U.S.C. SEC. 1308(A) AND (B). NONETHELESS OPM INDICATES THAT OPM HAD CONTINUED TO PREPARE THE REPORT ON PART-TIME EMPLOYMENT AND HAD NO OBJECTION TO PROVIDING IT TO CONGRESS.

THE ELIMINATION OF THE REPORTING REQUIREMENT IN 5 U.S.C. SEC. 3407(B) CAN ONLY BE ACHIEVED BY THE PROCESS OF REPEAL. REPEALING STATUTES ARE SUBJECT TO THE GENERAL RULES OF STATUTORY CONSTRUCTION APPLICABLE TO ALL LEGISLATIVE ENACTMENTS. POSADAS V. NATIONAL CITY BANK OF NEW YORK, 296 U.S. 497 (1936). REPEALS MUST EITHER BE EXPRESS OR RESULT BY IMPLICATION. SUTHERLAND, STATUTORY CONSTRUCTION, SEC. 23.08, AT P. 221 (SANDS 1972).

CLEARLY THE LANGUAGE OF SECTION 121 OF THE REPORTS ELIMINATION ACT DOES NOT EXPRESSLY REPEAL THE PART-TIME ACT REPORTING REQUIREMENT. HENCE, THE ISSUE IS WHETHER CONGRESS IMPLIEDLY REPEALED THE REPORTING REQUIREMENT. ALTHOUGH THE ISSUE IS NOT FREE FROM DOUBT, WE THINK OPM'S CONCLUSION THAT THE PART-TIME ACT REPORT IS NO LONGER REQUIRED IS NOT UNREASONABLE.

IT IS OF COURSE A CARDINAL PRINCIPLE OF STATUTORY CONSTRUCTION THAT REPEALS BY IMPLICATION ARE NOT FAVORED, RODZANOWER V. TOUCHE ROSS & CO., 426 U.S. 148, 154 (1976); UNITED STATES V. UNITED CONTINENTAL TUNA CORP., 424 U.S. 164, 168 (1976), AND WHENEVER POSSIBLE, STATUTES SHOULD BE READ CONSISTENTLY. THERE ARE, HOWEVER,

"TWO WELL-SETTLED CATEGORIES OF REPEALS BY IMPLICATION-- (1) WHERE PROVISIONS IN THE TWO ACTS ARE IN IRRECONCILABLE CONFLICT, THE LATER ACT TO THE EXTENT OF THE CONFLICT CONSTITUTES AN IMPLIED REPEAL OF THE EARLIER ONE; AND (2) IF THE LATER ACT COVERS THE WHOLE SUBJECT OF THE EARLIER ONE AND IS CLEARLY INTENDED AS A SUBSTITUTE, IT WILL OPERATE SIMILARLY AS A REPEAL OF THE EARLIER ACT. BUT IN EITHER CASE, THE INTENTION OF THE LEGISLATURE TO REPEAL MUST BE CLEAR AND MANIFEST. ***"

RODZANOWER V. TOUCHE ROSS & CO., ABOVE AT 154, QUOTING POSADAS V. NATIONAL CITY BANK, 296 U.S. 497, 503 (1936).

HERE, THE EARLIER ACT, SECTION 3407(B) OF THE PART-TIME ACT, PROVIDED THAT OPM INCLUDE "IN ITS ANNUAL REPORT UNDER SECTION 1308" A DESCRIPTION AND EVALUATION OF AGENCY ACTIVITY IN CARRYING OUT THE ACT. CONGRESS' USE OF THE PHRASE, IN THE SINGULAR, "ITS ANNUAL REPORT," INDICATES THAT CONGRESS HAD A SPECIFIC REPORT IN MIND AS THE MEDIUM TO TRANSMIT THE INFORMATION ON THE PART-TIME PROGRAM. A CURSORY REVIEW OF THE REPORTS REQUIRED BY SECTION 1308 QUICKLY SUGGESTS THAT "ITS (OPM'S) ANNUAL REPORT" IS THE GENERAL REPORT ON OPM'S ACTIONS IN THE ADMINISTRATION OF THE COMPETITIVE SERVICE REQUIRED BY SECTION 1308(A). OPM'S PAST PRACTICE SUPPORTS THIS CONCLUSION. IN THOSE INSTANCES WHERE OPM CITED THE AUTHORITY FOR ITS GENERAL ANNUAL REPORT, OPM REFERENCED SECTION 1308(A). ACCORDINGLY, WHEN THE REPORTS ELIMINATION ACT, THE LATER ACT, REPEALED THE GENERAL ANNUAL REPORT REQUIRED BY SECTION 1308(A), AND ELIMINATED THE MEDIUM FOR REPORTING ON PART-TIME EMPLOYMENT, IT IMPLIEDLY REPEALED THE PART-TIME ACT'S REQUIREMENT TO REPORT TO CONGRESS. /1/

ONE COULD ARGUE OF COURSE THAT THERE IS NO IRRECONCILABLE CONFLICT BETWEEN THE REPORTS ELIMINATION ACT'S PARTIAL REPEAL OF SECTION 1308 AND THE PART-TIME ACT'S REPORTING REQUIREMENT IN SECTION 3407(B). THIS ARGUMENT TURNS ON THE FACT THAT CONGRESS DID NOT SPECIFY THE SUBSECTION OF 1308 UNDER WHICH OPM WAS TO FILE ITS PART-TIME REPORT. SINCE CONGRESS ONLY PARTIALLY REPEALED THE 1308 AND RETAINED THE REMAINDER OF THE REPORTS UNDER THE HEADING "ANNUAL REPORTS," SECTION 3407(B) AND 1308 CAN COEXIST HARMONIOUSLY BY CONSTRUING SECTION 3407(B) AS, IN EFFECT, ADDING A REPORTING DUTY TO THOSE ALREADY DESCRIBED IN SECTION 1308.

THIS ARGUMENT, HOWEVER, IGNORES THE FAIR IMPORT OF THE LANGUAGE OF SECTION 3407(B) WHICH INDICATES THAT CONGRESS HAD A PARTICULAR REPORT IN MIND. /2/ IF THIS MUCH IS CONCEDED, WE THINK THE CHOICE OF WHICH REPORT CONGRESS INTENDED OPM TO USE TO TRANSMIT INFORMATION ON THE PART TIME PROGRAM IS CLEAR. IN THIS REGARD, THE ANNUAL REPORT REQUIRED BY SUBSECTION 1308(A) COVERED A NUMBER OF OPM ACTIVITIES THAT PRIMARILY RELATE TO THE ADMINISTRATION AND EFFICACY OF THE COMPETITIVE SERVICE. SUBSECTION (C), (D), AND (E) OF SECTION 1308, WHICH WERE NOT REPEALED, ARE DISTINGUISHABLE FROM SUBSECTION (A) IN THAT EACH REQUIRED AN ANNUAL REPORT ON A DISTINCTLY LIMITED TOPIC, NONE OF WHICH ARE GERMANE TO THE BROADER TOPIC OF SUBSECTION (A), I.E., THE INTEGRITY/EFFICACY OF COMPETITIVE SERVICE. MOREOVER, PART-TIME EMPLOYMENT RELATES TO THE BROADER TOPIC OF SUBSECTION (A), AND NOT AT ALL TO ANY ONE OF THE DISTINCTIVE REPORTS REQUIRED BY UNREPEALED SUBSECTIONS (C)-(E).

ACCORDINGLY, WE ARE NOT PREPARED TO DISAGREE WITH OPM'S POSITION THAT THE ELIMINATION OF ITS GENERAL ANNUAL REPORT FORMERLY SUBMITTED UNDER SECTION 1308(A) ALSO ELIMINATED THE REQUIREMENT TO REPORT TO CONGRESS ON PART-TIME EMPLOYMENT.

/2/ TO RECONCILE THE STATUTES ALONG THESE LINES ALSO WOULD REQUIRE US TO REWRITE SECTION 3407(B) TO PROVIDE THAT OPM "SHALL REPORT UNDER SECTION 1308 OF THIS TITLE ***" THEREBY DELETING THE PHRASE "INCLUDE IN ITS ANNUAL REPORT."

/1/ THE LEGISLATIVE HISTORY OF THE CONGRESSIONAL REPORTS ELIMINATION ACT DOES NOT INDICATE A SPECIFIC INTENTION ON THE PART OF CONGRESS TO REPEAL ANY REPORTING REQUIREMENTS OTHER THAN THOSE EXPRESSLY MENTIONED IN THE ACT. WHAT LITTLE LEGISLATIVE HISTORY EXISTS WITH RESPECT TO SECTION 121 SUGGESTS THE OBVIOUS, NAMELY, THAT CONGRESS VIEWED THE ACT AS ELIMINATING ONLY THE REPORTS SPECIFICALLY REFERRED TO. SEE H.R. REP. NO. 1268, 96TH CONG., 2ND SESS. 4687. HOWEVER, THE ABSENCE OF SPECIFIC INDICATIONS IN THE LEGISLATIVE HISTORY OF THE REPORTS ELIMINATION ACT THAT CONGRESS DID OR DID NOT INTEND TO ELIMINATE THE PART-TIME REPORT DOES NOT END THE INQUIRY, SINCE IT IS THE NECESSARY EFFECT OF THE LANGUAGE OF THE REPORTS ELIMINATION ACT VIEWED IN LIGHT OF SECTION 3407(B) AND 1308(A) THAT IS ULTIMATELY DETERMINATIVE. SEE 1A SUTHERLAND ON STATUTORY CONSTRUCTION SEC. 2309 (SANDS ED. 1985).