Rossi v. Brown
| Decision Date | 18 December 1980 |
| Docket Number | No. 79-1485,79-1485 |
| Citation | 206 U.S.App.D.C. 148,642 F.2d 553 |
| Parties | 23 Fair Empl.Prac.Cas. 1694, 24 Empl. Prac. Dec. P 31,238, 206 U.S.App.D.C. 148 Anthony M. ROSSI et al., Appellants, v. Harold BROWN, Secretary of Defense et al., Appellees. Rehearing Denied |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (Civil Action No. 78-2346).
Randy M. Mott, Washington, D.C., with whom J. Stanley Pottinger, Warren Dennis, and Carolyn Dye, Washington, D.C., were on brief, for appellants.
Martha P. Rogers, Asst. U.S. Atty., Washington, D.C., with whom Carl S. Rauh, U.S. Atty. at the time the brief was filed, John A. Terry, Michael W. Farrell and William H. Briggs, Jr., Asst. U.S. Attys. and Laurence Storch, Atty., Dept. of State, Washington, D.C., were on brief, for appellees.
Before McGOWAN and WILKEY, Circuit Judges, and DAVIES *, Senior United States District Judge for the District of North Dakota.
Opinion for the Court filed by Circuit Judge WILKEY.
Section 106 of Public Law No. 92-129 prohibits discrimination against United States citizens in the employment of civilian personnel on United States military bases overseas, unless such discrimination is permitted by "treaty." 1 This case presents the narrow question of whether the Base Labor Agreement of 1968 between the United States and the Republic of the Philippines, 2 which provides for preferential hiring of local nationals at United States military bases in the Philippines, is a "treaty" within the meaning of section 106.
Resolution of this question turns on whether the word "treaty" set forth in the statute is intended to refer only to international agreements entered into by the President with the advice and consent of two-thirds of the Senate or whether it refers in a broader sense to any international agreement entered into between the United States and the governments of other nations. The district court concluded that the latter interpretation was correct and accordingly entered summary judgment for the Government. 3 We reverse, finding on the basis of the plain language of the statute and the legislative history that the term "treaty" was used in the sense set forth in article II of the Constitution-that is, an international agreement made by the President with the advice and consent of two-thirds of the Senate.
The essential facts are not in dispute; we review them briefly here. 4
Article 1 of the Base Labor Agreement of 27 May 1968 between the United States Government and the Republic of the Philippines provides:
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 cases United States nationals may be employed. 5
In March 1978 four of appellants, who are United States citizens residing in the Philippines, were informed that pursuant to this agreement their positions as gameroom managers at the United States Naval Station, Subic Bay, in the Republic of the Philippines, thereafter would be filled only by Philippine citizens. Appellants subsequently filed an administrative complaint with an Equal Employment Opportunity Counselor challenging the validity of this action.
After failing to prevail at the administrative level, appellants on 13 December 1978 filed a complaint in the United States District Court alleging that the provision set forth in the Base Labor Agreement for hiring Filipino citizens in preference to United States citizens plainly contradicts section 106, Public Law 92-129 (Hughes-Schweiker amendment). 6 Section 106 provides in pertinent part:
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 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. 7
Whether the preferential hiring mandate of the Base Labor Agreement is nullified by the qualified ban on employment discrimination against United States citizens set forth in section 106 necessarily depends upon the construction accorded to the word "treaty." Appellants contended below that Congress used the word "treaty" in section 106 in the sense set forth in article II of the Constitution: an international agreement made by the President with the advice and consent of two-thirds of the Senate. Under this construction, the parties agree, the Base Labor Agreement is not a treaty. The President never submitted the agreement to the Senate for ratification. Rather, it was negotiated by the President pursuant to a congressional authorization of 1944 to use "such means as he (the President) finds appropriate" to acquire and retain military bases in the Philippines. 8 The district court, however, agreed with the Government's contention that Congress intended the scope of the term "treaty" to encompass any binding agreement entered into between the United States and other nations. Accordingly, the court held that the Base Labor Agreement of 1968 was a "treaty" for purposes of section 106.
We reverse. Customary usage of the term "treaty" in the United States and the legislative history of section 106 persuade us of the validity of appellants' position.
Under principles of international law, the word "treaty" ordinarily is used to refer to "an 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 designation." 9 The designation of "treaty" under international law thus encompasses within its scope all binding agreements entered into between nations regardless of the manner by which these agreements are brought into force.
Under the United States Constitution, the term "treaty" has a more specific and restricted meaning. Article II, section 2, clause 2 of the Constitution provides that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." 10 It is without question that the President may enter into binding agreements with other nations without the advice and consent of the Senate, 11 and these types of agreements commonly are called "executive agreements." 12 Executive agreements are "treaties" under established canons of international law, but not under article II of the Constitution.
This distinction between treaties and other forms of international agreements is followed in the draft Restatement of the Foreign Relations Law of the United States. Section 302 of the Restatement provides:
§ 302. Definitions: Law of the United States
(a) "Treaty" means an international agreement made by the President with the advice and consent of the Senate, two-thirds of the Senators present concurring.
(b) Other international agreements, sometimes collectively referred to as "international agreements other than treaties," include "executive agreements pursuant to treaty," "Congressional-executive agreements (i. e., executive agreements pursuant to congressional
authorization) and "sole executive agreements." 13
Thus under United States law, "treaties" normally are thought of as one specific category of international agreements requiring a particular procedure and having a particular status. According to this usage, the Base Labor Agreement at issue is an executive agreement, or more specifically, a "Congressional-executive agreement" 14-that is, an international compact concluded by the President pursuant to congressional authorization to use "such means as . . . appropriate" to acquire and retain military bases in the Philippines-but not a "treaty."
In declining to apply this interpretation to section 106, the district court in part relied upon B. Altman & Co. v. United States. 15 In that case the Supreme Court construed the word "treaty" in the Circuit Courts of Appeals Act of 1891, which authorized a direct appeal to the Court in cases involving "the validity or construction of any treaty," 16 to encompass all international agreements regardless of the manner by which these agreements were brought into force. The Court relied upon the intent of Congress in establishing the provision: Congress deemed questions involving the interpretation of "treaties" to be of sufficient importance to justify direct review to the Court, 17 and the Court perceived no need to distinguish between treaties in the article II sense and other international agreements on that basis. All international compacts entailed binding rights and obligations, the construction of which could have significant bearing on this nation's relations with other nations. 18
Thus although the term "treaty" under United States law normally connotes an agreement requiring the ratification of the Senate under article II of the Constitution, Altman indicates that it does not invariably carry such a meaning. 19 The meaning to be attributed to the word "treaty" ultimately depends upon the intent of Congress in enacting the particular provision in which the term appears. We move, then, to an examination of the purpose underlying section 106.
The legislative history of section 106 is not extensive, but the purpose of the section clearly is set forth in both the Senate and Conference Committee Reports. The Conference Report, for instance, provides:
The Senate...
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