Newell v. Federal Energy Admin.

• Decision Date: 12 December 1977
• Docket Number: Civ. A. No. 77-0699.
• Citation: 445 F. Supp. 80
• Parties: Arthur NEWELL et al., Plaintiffs, v. FEDERAL ENERGY ADMINISTRATION et al., Defendants.
• Court: U.S. District Court — District of Columbia

445 F. Supp. 80

Arthur NEWELL et al., Plaintiffs, v. FEDERAL ENERGY ADMINISTRATION et al., Defendants.

Civ. A. No. 77-0699.

United States District Court, District of Columbia.

December 12, 1977.

Robert M. Tobias, William F. White, Washington, D. C., for plaintiffs.

Earl J. Silbert, U. S. Atty., Robert N. Ford, Michael I. Gewirtz, Asst. U. S. Attys., Andrew Jay Schwartzman, Washington, D. C., for defendants.

MEMORANDUM OPINION

CHARLES R. RICHEY, District Judge.

This case is before the Court on plaintiff's¹ motion for summary judgment and defendants' cross-motion for summary judgment or, in the alternative, to dismiss. The Court finds, and all parties agree, that there are no genuine issues of material fact remaining in the case. For the reasons hereinafter stated, the Court, in this case of first impression,² finds that the plaintiff is entitled to a judgment as a matter of law.

I. BACKGROUND

In August 1975, the plaintiff transferred his employment from the Department of the Army to the defendant, Federal Energy Administration (FEA). The plaintiff served there as the Deputy for Operations in the Office of Congressional Affairs. Subsequently, this office was specifically ordered to reduce its staff substantially to meet a congressional mandate. Pursuant to this requirement, the defendant sent plaintiff a letter stating that his position was to be abolished and that arrangements were being made to exercise his reemployment rights³ and to transfer him back to the Army. The letter stated that because the plaintiff had reemployment rights, the reduction-in-force regulations and the adverse action procedures⁴ were not applicable. Plaintiff then left his position at the FEA and was returned to the Department of the Army, where he is currently employed.

II. DISCUSSION

Plaintiff claims that the defendants have exceeded their authority by transferring the plaintiff in a manner which circumvents the procedural protections (the reduction-in-force regulations, etc.) to which the plaintiff is entitled. The defendants claim that pursuant to both § 28 of the Federal Energy Administration (FEA) Act, 15 U.S.C. § 786, and § 212(g)(1) of the Economic Stabilization Act (ESA) of 1970, as amended, 12 U.S.C. § 1904 note,⁵ they have the authority to exercise unilaterally the plaintiff's reemployment rights. Section 28 of the FEA reads:

Upon the termination of this chapter, any functions or personnel transferred by this chapter shall revert to the department, agency, or office from which they were transferred. Any officer or employee of the Federal Government who is appointed, without break in service of one or more workdays, to any position for carrying out functions under this chapter is entitled, upon separation from such position other than for cause, to reemployment in the position occupied at the time of appointment, or in a position of comparable grade and salary.

Section 212(g)(1) of the ESA reads:

Under such regulations as the President may prescribe, officers and employees of the Government who are appointed, without a break of service of one or more workdays, to any position for carrying out functions under this title are entitled, upon separation from such position, to reemployment in the position occupied at the time of appointment or in a position of comparable grade and salary.

Plaintiff argues that the defendants cannot rely upon either of these statutes because: (1) § 28 of the FEA Act is only activated by the termination of the FEA, not the termination of an employee's job; (2) reemployment rights under § 28 can be exercised only by the employee, not by the FEA; and (3) § 212(g)(1) of the ESA does not apply to the plaintiff because the procedures of that provision have not been followed. The Court finds that the termination of the FEA is not the only incident that will activate § 28, but that the reemployment rights provided by § 28 of the FEA Act and by § 212(g)(1) of the ESA, as they apply to plaintiff herein, can be exercised only at the request of the employee.

A. Section 28 is Activated by Both the Termination of FEA's Operation and an Employee's Separation from the FEA, Other Than for Cause.

Plaintiff contends that the reemployment rights of § 28 arise only "upon the termination of the FEA." The Court finds that basic principles of statutory construction require rejection of this contention. It is well-established that resort to legislative history is inappropriate when the statute is clear on its face. See, e. g., Ex parte Collett, 337 U.S. 55, 61, 69 S.Ct. 944, 93 L.Ed. 1207 (1949); Aviation Consumer Action Project v. Washburn, 175 U.S.App. D.C. 273, 278, 535 F.2d 101, 106 (1976). Moreover, a basic maxim of statutory construction is that every word, clause, and sentence of a statute should, if possible, be given effect. See United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 99 L.Ed. 615 (1955); Montgomery Charter Service, Inc. v. Washington Metropolitan Area Transit Commission, 112 U.S.App.D.C. 321, 325, 325 F.2d 230, 234 (1963); Equal Employment Opportunity Commission v. Continental Oil Co., 548 F.2d 884, 889 (10th Cir. 1977). In light of these principles, the Court has examined § 28 and concludes that its language is clear on its face and that the plaintiff's interpretation would render ineffective and meaningless various parts of the statute.

Section 28 consists of two sentences. The rights conferred by the first sentence are activated "upon the termination of the FEA." However, the rights conferred by the second sentence are not limited in this manner. There, rights are activated "upon separation from such position other than for cause." If Congress had intended both sentences to be triggered only by the termination of the FEA, it could easily have either deleted the "upon separation from" clause or simply repeated the "upon termination of the FEA" clause. In fact, and more significantly, Congress' exclusion of separation for cause from the ambit of the second sentence would have been wholly unnecessary if Congress had intended the second sentence to be activated only by the termination of the FEA. In other words, had Congress intended the termination of the FEA to be the only activating incident, separation for cause would have been automatically excluded and there would have been no reason to expressly exclude it. Therefore, the language of § 28 clearly indicates that separation, other than for cause, will activate the reemployment rights of the second sentence.

There is further evidence in the statute that Congress intended the two sentences to refer to different reemployment rights. The statute distinguishes between functions and employees "transferred by this Act" (first sentence) and employees "appointed to any position . . ." (second sentence). The term used in the first sentence complements § 6 of the Act⁶ which transferred to the FEA specific functions and personnel of the Department of the Interior and the Cost of Living Council. The second sentence only refers to employees who were not "transferred by the Act" but voluntarily chose to go to the FEA.⁷ This difference is clear from the language in the statute. The first sentence speaks of reversion to the "department, agency, or office from which they functions and employees were transferred." The second sentence speaks of reversion to the "position occupied at the time of appointment." This is logical because, pursuant to § 6, employees transferred by the Act are transferred with their positions. Therefore, only employees not transferred by the Act could revert to their "position"; for those transferred by the Act, their "position" is in the FEA and they can only revert to their "department, agency, or office." In addition, the first sentence refers to functions, while the second sentence does not. This is consistent with this Court's interpretation of § 28 in that functions can only revert "upon the termination of the FEA," while employees may revert to their original positions "upon separation."

Accordingly, the application of basic rules of statutory construction convince the Court that § 28 creates two distinct sets of reemployment rights.⁸ Because plaintiff was "appointed" rather than "transferred" to the FEA, his reemployment rights may be exercised prior to the termination of the FEA, pursuant to the second sentence of § 28.

B. Reemployment Rights Under § 28 May Be Exercised Only at the Request of the Employee.

Plaintiff argues that § 28 gives employees —and not the FEA—the right to exercise the reemployment rights and that the defendants have used § 28 as a "destaffing tool" to remove employees without giving them the opportunity to compete with other employees in a reduction-in-force procedure. The defendants claim that the Civil Service Commission has promulgated regulations⁹ under § 212(g)(1) of the ESA which allow an emergency agency to return employees to their former agencies without giving them any of the procedural protections they might otherwise have. Although, as defendants admit, these regulations do not apply to the FEA, defendants argue that the regulations should control this Court's decision because the language of § 28 of the FEA Act is similar to the language of § 212(g)(1) of the ESA. The Court finds this approach inconsistent with § 212(g)(1) itself and with subsequent legislation and, therefore, the Court rejects it.

First, § 212(g)(1) differs from § 28 in that reemployment rights under the former are to be governed by "such regulations as the President may prescribe." 12 U.S.C. § 1904 note. Pursuant to this provision, the Civil Service Commission, through a series of delegations from the President,¹⁰ acquired authority to allow an agency performing functions under the ESA to exercise the employee's reemployment rights. Thus, it was necessary for regulations to be promulgated in order for an agency to exercise unilaterally its employees' reemployment rights under § 212(g)(1);...