National Treasury Employees Union v. Devine, 84-5009

• Decision Date: 27 April 1984
• Docket Number: No. 84-5009,84-5009
• Citation: 733 F.2d 114,236 U.S.App.D.C. 22
• Parties: NATIONAL TREASURY EMPLOYEES UNION, et al. v. Donald J. DEVINE, Director, Office of Personnel Management.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 114

733 F.2d 114

236 U.S.App.D.C. 22

NATIONAL TREASURY EMPLOYEES UNION, et al. v. Donald J. DEVINE, Director, Office of Personnel Management.

No. 84-5009.

United States Court of Appeals District of Columbia Circuit.

Argued March 19, 1984.

Decided April 27, 1984.

Richard A. Olderman, Attorney, Dept. of Justice, Washington, D.C., with whom Richard K. Willard, Acting Asst. Atty. Gen., Joseph E. DiGenova, U.S. Atty., and Anthony J. Steinmeyer, Attorney, Dept. of Justice, Washington, D.C., were on the brief, for appellant.

Lois G. Williams, Washington, D.C., with whom Kerry L. Adams and Gregory O'Duden Asst. Counsel, Washington, D.C., were on the brief for appellee, Nat. Treasury Employees Union.

William J. Stone and Mark D. Roth, Washington, D.C., were on the brief for appellee, American Federation of Government Employees, AFL-CIO.

Catherine Waelder and Patrick J. Riley, Washington, D.C., were on the brief for appellee, Nat. Federation of Federal Employees.

Before EDWARDS, BORK and SCALIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

Donald Devine, Director of the Office of Personnel Management ("OPM"), appeals from a decision of the District Court enjoining the implementation, administration and enforcement of new OPM regulations governing certain personnel policies for federal employees. National Treasury Employees Union v. Devine, 577 F.Supp. 738 (D.D.C.1983), reprinted in Joint Appendix ("J.A.") 178. The District Court reasoned that OPM's attempted implementation of the regulations had been blocked by a congressional appropriations measure, ¹ and that the regulations therefore were "without any effect whatsoever, as long as OPM's funding derives from H.J.Res. 413." National Treasury Employees Union, 577 F.Supp. at 750 (emphasis added), reprinted in J.A. 205. We conclude that the holding of the District Court is clearly justified and, accordingly, we affirm.

I. BACKGROUND

On March 30, 1983, the OPM proposed dramatic changes in federal personnel practices relating to reduction in force procedures, performance management systems, and pay administration under the Fair Labor Standards Act of 1938. ² These changes were designed to place greater emphasis on individual job performance, while reducing the importance of length of service, in personnel decisions. Widespread congressional opposition led OPM to propose a modified version of the proposed regulations on July 14, 1983. ³ However, on August 15, 1983, by virtue of continued dissatisfaction with OPM's proposed changes, Congress adopted the Department of Transportation and Related Agencies Appropriations Act ("Transportation Appropriations Act") in which it was specified that no funds could be obligated or expended before October 15, 1983 to effectuate the March 30 or July 14 OPM proposals or revisions of the proposals. ⁴

While the restrictions of the Transportation Appropriations Act were still in effect, Congress was focusing on the pressing need to fund the federal government for fiscal year 1984. Because of a number of unresolved issues, Congress decided to shun the regular appropriations process and, on October 1, 1983, passed a continuing funding resolution. ⁵ Among other things, this resolution authorized funds for OPM at the fiscal year 1983 levels for the period October 1 through November 10, 1983, with no restrictions on OPM's authority to issue personnel regulations. Consequently, during the brief period between October 15 (when the restrictions in the Transportation Appropriations Act terminated) and November 10, 1983, no restrictions would be in effect.

Congress acted promptly, however, to fill the void and to reinstate the restrictions on OPM authority to implement new personnel regulations. On October 18, 1983, the House Appropriations Committee reported H.R. 4139, H.R.REP. NO. 417, 98th Cong., 1st Sess. (1983), which proposed fiscal year 1984 appropriations for OPM and several other agencies. Section 508, "the Hoyer Amendment," provided that:

None of the funds appropriated under this Act shall be obligated or expended to implement, promulgate, administer, or enforce the proposed Office of Personnel Management regulations and the proposed Federal Personnel Manual issuances published in the Federal Register on March 30, 1983, on pages 13341 through 13381, as superseded by proposed regulations and Federal Personnel Manual issuances published in the Federal Register on July 14, 1983 on pages 32275 through 32312.

H.R. 4139, 98th Cong., 1st Sess. Sec. 508 (1983).

While this restriction was pending before Congress, the OPM issued final regulations on October 25, adopting the proposed changes in personnel practices in somewhat modified form. ⁶ Two days later the House passed H.R. 4139, without changing the language of the Hoyer Amendment to refer more precisely to the October 25 regulations. H.R. 4139 was enacted into law on November 12, 1983, when Congress passed House Joint Resolution 413, a second continuing funding resolution. H.R.J.Res. 413, Pub.L. No. 98-151, 97 Stat. 964 (1983), reprinted in J.A. 74. This resolution, passed two days after funding for the federal government had expired, included a provision appropriating such amounts "as may be necessary for continuing the activities ... which were provided for in H.R. 4139, the Treasury, Postal Service and General Government Appropriation Act, 1984, as passed the House of Representatives on October 27, 1983, ... to the extent and in the manner provided for in such Act." Id. at 982, J.A. 92.

Despite this legislation, the appellant announced on November 21, 1983, that the new OPM regulations would become effective on November 25, 1983. OPM News Release (Nov. 21, 1983), reprinted in J.A. 47. Devine indicated that, while H.R.J.Res. 413 "barred the spending of funds to implement the regulations," no expenditure of funds was required for the regulations to go into effect. Id. Further, although he recognized that "the intent of the bar may be to prohibit OPM's administration or enforcement of the regulations," he concluded that each federal agency would simply have to administer and enforce the regulations without OPM's assistance (presumably to avoid the effect of the congressional restrictions). Id. He acknowledged that this would result in "the paradox of rules becoming effective without the oversight to assure that they are implemented fairly.... The fact that we have rules that will not be overseen by the oversight agency, while not unique, is certainly unusual." Id.

On November 23, the District Court granted a request of appellee, National Treasury Employees Union, for a temporary restraining order staying implementation of the regulations. See National Treasury Employees Union v. Devine, No. 83-3322 (D.D.C. Nov. 24, 1983) (order granting temporary restraining order), reprinted in J.A. 173. After full briefing, the trial court granted summary judgment for the appellees, ⁷ holding that the regulations published on October 25, 1983 were null and void. National Treasury Employees Union v. Devine, 577 F.Supp. 738 (D.D.C.1983), reprinted in J.A. 178. This determination is now challenged on appeal.

DISCUSSION

The crux of the appellant's position is that the District Court erroneously construed the scope and effect of H.R.J.Res. 413. ⁸ As noted above, OPM officials initially recognized and acknowledged the restrictions imposed by Congress on the authority of the agency to effectuate new personnel regulations. See OPM News Release (Nov. 21, 1983), reprinted in J.A. 47. In a noticeable departure from its original view, OPM now asserts that the congressional resolution only applies to the agency's proposed regulations, and has no effect on the final regulations that were issued after notice and comment on the proposed regulations. Alternatively, the appellant again argues that the resolution does not prevent any agency other than OPM from implementing, administering and enforcing the regulations within that agency. We hold that both arguments were properly rejected by the District Court.

I.

The appellant's suggestion that the congressional resolution is not applicable to the regulations as finally issued on October 25 is singularly unpersuasive. This position is belied by the plain terms of the resolution. The resolution bars the expenditure of funds to "implement, promulgate, administer or enforce" the proposed regulations. As proposed regulations are only administered and enforced after they are issued as final regulations, when Congress bars the administration and enforcement of proposed regulations, it is speaking of those regulations as finally issued.

Indeed, it is almost inconceivable that the House Appropriations Committee could have intended any other meaning in reporting H.R. 4139. Proposed regulations will frequently be modified when promulgated as final regulations--such evolution is, after all, one of the very purposes of notice and comment rulemaking. The Committee was obviously aware of this fact, and it is extraordinarily unlikely that it intended to allow such modifications to serve as a loophole by which OPM could disregard Congress' express opposition to the changes in personnel regulations.

Even were we willing to assume that the House Committee acted so myopically in approving the language in H.R. 4139, it is abundantly clear that Congress intended the language to cover the final regulations when it passed H.R.J.Res. 413. There is no dispute that in so acting, Congress was fully aware that the proposed regulations had been superseded by the final regulations. See, e.g., 129 CONG.REC. H8731 (daily ed. Oct. 27, 1983) (statement of Representative Hoyer), reprinted in J.A. 171. As the language of the resolution easily supports the conclusion that it encompassed the final regulations, there is no reason to ascribe to Congress the meaningless act of passing legislation aimed only at superseded...