Rossi v. Brown

• Decision Date: 20 March 1979
• Docket Number: Civ. A. No. 78-2346.
• Citation: 467 F. Supp. 960
• Parties: Anthony ROSSI et al., Plaintiffs, v. Harold BROWN, Secretary of Defense, et al., Defendants.
• Court: U.S. District Court — District of Columbia

467 F. Supp. 960

Anthony ROSSI et al., Plaintiffs, v. Harold BROWN, Secretary of Defense, et al., Defendants.

Civ. A. No. 78-2346.

United States District Court, District of Columbia.

March 20, 1979.

J. Stanley Pottinger, Randy M. Mott,^* Troy, Malin & Pottinger, Washington, D. C., for plaintiffs.

William H. Briggs, Asst. U. S. Atty., Civ. Div., Washington, D. C., for defendants.

MEMORANDUM

FLANNERY, District Judge.

This matter comes before the court on cross-motions for summary judgment. The material facts are undisputed. The issue presented is readily stated: whether a Base Labor Agreement ("BLA") entered into between the United States and the Republic of the Philippines which provides for the preferential hiring of local nationals at United States military bases in the Philippines is a "treaty" within the meaning of 5 U.S.C. § 7151 note (1976), which bans discrimination against American citizens at U.S. military bases overseas "unless prohibited by treaty." Restated more generally, the issue is whether the word "treaty" in 5 U.S.C. § 7151 note means a treaty in the constitutional sense — an agreement between nations approved by the Senate under its "advice and consent" powers — or in the broader international sense of any binding agreement between the governments of two nations. The court concludes that the latter interpretation is proper on the facts of this case, and will enter partial summary judgment for the defendants.

FINDINGS OF FACT

The plaintiffs are citizens of the United States who currently reside in the Philippines. The defendants, Harold Brown and W. Graham Claytor, Jr., are respectively the Secretary of Defense and the Secretary of the Navy. As of March 14, 1978, four of the plaintiffs were employed by the defendants as game room managers at Special Services, U.S. Naval Station Subic Bay, in the Republic of the Philippines. On that date they were notified that the position of game room manager would be converted to a "local national" position which could only be filled by Philippine citizens. This conversion was ordered pursuant to the Base Labor Agreement of 1968, T.I.A.S. No. 6542, Article I, which provides that:

The United States Armed Forces in the Philippines shall fill the needs for civilian employment by employing Filipino citizens, except when the needed skills are found in consultation with the Philippine Department of Labor, not to be locally available, or when otherwise necessary for reasons of security or special management needs, in which case United States nationals may be employed.

The Base Labor Agreement has not been approved by the Senate under its "advice and consent" powers set forth in Article II, Section 2, Clause 2 of the United States Constitution. It was, however, negotiated because of an arrangement between the United States and the Republic of the Philippines providing for the establishment and maintenance of U.S. military bases in the Philippines. This negotiation took place pursuant to an Act of Congress passed in 1944, which provides in pertinent part:

After negotiation with the President of . . . the Philippines, . . . the President of the United States is authorized by such means as he finds appropriate to withhold or to acquire and to retain such bases, necessary appurtenances to such bases, and the rights incident thereto, . . . as he may deem necessary for the mutual protection of the Philippine Islands and of the United States.

22 U.S.C. § 1392 (1976). This statutory authorization led to an initial Military Base Agreement in 1947, T.I.A.S. No. 1775, which has been the subject of periodic renegotiation, and the Base Labor Agreement of May 27, 1968, T.I.A.S. No. 6542.

Upon hearing of their proposed termination, plaintiffs Rossi, Bumgarner, Perry and Frierson instituted administrative proceedings at the Subic Bay Naval Station, contending that their proposed termination constituted unlawful discrimination on the basis of citizenship, actionable under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1976). They also maintained that the termination flatly violated Section 106 of Public Law 92-129, 5 U.S.C. § 7151 note (1976) hereinafter referred to for convenience as "Section 106", which provides in pertinent part that:

Unless prohibited by treaty, no person shall be discriminated against by the Department of Defense or by any officer or employee thereof, in the employment of civilian personnel at any facility or any installation operated by the Department of Defense in any foreign country because such person is a citizen of the United States or is a dependent of a member of the Armed Forces of the United States . . ..

Local officers at the Subic Bay Station rejected the plaintiffs' complaint because they concluded that neither they nor the Department of the Navy had the authority unilaterally to modify the Base Labor Agreement. The four plaintiffs named above were subsequently fired ahead of schedule pursuant to a Reduction in Force (RIF). This early termination is the subject of a retaliation claim by the plaintiffs, which is not before the court in the present motions. The defendants correctly note that all of the plaintiffs' proposed findings of fact which relate to that termination and the retaliation claim are immaterial in the present posture of the case.

After notice of their proposed early termination, the plaintiffs brought this action on December 13, 1978, seeking a Temporary Restraining Order enjoining the defendants from firing them and barring them from the base. The court granted a temporary restraining order to permit adequate consideration of the matter, and then denied plaintiffs' Motion for a Preliminary Injunction on December 22, 1978. The court subsequently ordered cross-motions for summary judgment on the legality of Article I of the Base Labor Agreement and its status within the meaning of Section 106.

CONCLUSIONS OF LAW

I. The Parties' Contentions

The plaintiffs' position is that Congress used the term "treaty" in Section 106 with full knowledge of its meaning and the intention that it be construed in its constitutional sense. They ask the court to examine the plain meaning of the term, recognizing that although no distinction is drawn between "treaty" and "executive agreement" for purposes of international law, a clear distinction does exist under United States law, which the Congress must be presumed to have employed. This position, they argue, is supported by the legislative history of Section 106, by the legislative history of contemporaneous legislation which employed the term "treaty", and by interpretations of the General Accounting Office and, until 1977, of the Department of State. The plaintiffs also contend that Congress, by enacting various laws which prohibit discrimination, has expressed its intent to prevent discrimination against American citizens at overseas military bases. Finally, plaintiffs argue that the Supremacy clause prevents the BLA from overriding conflicting Congressional enactments unless the BLA is a treaty in the constitutional sense.

The defendants maintain that although the Base Labor Agreement was never submitted to the Senate for "advice and consent" and is not a treaty in the narrow constitutional sense, it is a valid and binding international obligation of the United States, entered into pursuant to congressional authority, and thus is a "treaty" within the meaning of Section 106. They reason that the Base Labor Agreement falls within the definition of "treaty" under international law, and that other courts, particularly the Supreme Court in B. Altman & Co. v. United States, 224 U.S. 583, 32 S.Ct. 593, 56 L.Ed. 894 (1912), have held agreements between the United States and another nation to be "treaties" within the meaning of certain statutes, even without the Senate's advice and consent. According to the defendants, the legislative history of Section 106 is so sparse, and the wording so awkward, that it would be a serious mistake to conclude that Congress intended to upset numerous international agreements by a statute so hastily passed. They point to the total absence of any indication of intent to upset existing international agreements, even though numerous agreements similar to the BLA were in force between the United States and other nations at the time Section 106 was passed. Finally, the defendants stress the need for the court to employ sound principles of judicial deference when interpreting the term "treaty" in order to avoid upsetting existing relations with foreign nations and to refrain from interfering with the executive branch's conduct of foreign affairs. After an examination of the pertinent statutes involved here, and the legislative history of Section 106, the court is convinced that the defendants' position, particularly in view of the absence of a showing of persuasive legislative history, is correct.

II. "Treaty" — Generic and Constitutional Meanings

The broad meaning of the word "treaty", as the term is customarily used, is:

any international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular description . . ..

Vienna Convention of the Law of Treaties of May 23, 1969, Art. 2(1)(a), compiled at 63 Am.J.Int'l L. 875 (1969). See also B. Altman & Co. v. United States, 224 U.S. 583, 600-01, 32 S.Ct. 593, 56 L.Ed. 894 (1912); L. Henkin, Foreign Affairs and the Constitution 142 (1972). Thus, the term implies a binding agreement between nations which governs some aspect of the relations between them. The parties do not dispute that the Base Labor Agreement falls within this definition of treaty, because it was entered into in 1968 by the United States and the Republic of the Philippines after joint negotiation and drafting.

The United States Constitution suggests a narrower definition of...