Weinberger v. Rossi

Citation456 U.S. 25,71 L.Ed.2d 715,102 S.Ct. 1510
Decision Date31 March 1982
Docket NumberNo. 80-1924,80-1924
PartiesCaspar W. WEINBERGER, Secretary of Defense, et al., Petitioners v. Anthony M. ROSSI et al
CourtUnited States Supreme Court
Syllabus

In 1968, the President entered into an agreement with the Republic of the Philippines providing for the preferential employment of Filipino citizens at United States military bases in the Philippines. In 1971, Congress enacted § 106 of Pub.L. 92-129, which prohibits employment discrimination against United States citizens on military bases overseas unless permitted by "treaty." Thereafter, respondent United States citizens residing in the Philippines were notified that their jobs at a naval base there were being converted into local national positions in accordance with the 1968 agreement. After unsuccessfully pursuing an administrative remedy, respondents then filed suit in Federal District Court, alleging that the preferential employment provisions of the agreement violated § 106. The District Court granted summary judgment for petitioners, but the Court of Appeals reversed.

Held: The word "treaty" as used in § 106 includes executive agreements, such as the one involved here, and is not limited to those international agreements concluded by the President with the advice and consent of the Senate pursuant to Art. II, § 2, cl. 2, of the Constitution. Pp. 28-36.

(a) In view of the fact that Congress has not been consistent in various other Acts in distinguishing between Art. II treaties and other forms of international agreements, it is not dispositive that Congress in § 106 used the term "treaty" without specifically including international agreements that are not Art. II treaties. But in the case of a statute such as § 106 that touches upon the United States' foreign policy, there is a particularly justifiable reason to construe Congress' use of "treaty" to include international agreements as well as Art. II treaties. Cf. B. Altman & Co. v. United States, 224 U.S. 583, 32 S.Ct. 593, 56 L.Ed. 894. To construe § 106 otherwise would mean that Congress intended to repudiate 13 existing executive agreements, including the one in this case, providing for preferential hiring of local nationals. Pp. 28-32.

(b) The legislative history of § 106 provides no support for attributing such an intent to Congress, but rather discloses that Congress was primarily concerned with the financial hardship to American servicemen

that resulted from employment discrimination against American citizens at overseas bases. Pp. 32-36.

206 U.S.App.D.C. 148, 642 F.2d 553, reversed and remanded.

Barbara E. Etkind, Philadelphia, Pa., for petitioners.

M. Mott, Washington, D. C., for respondents.

Justice REHNQUIST delivered the opinion of the Court.

Section 106 of Pub.L. 92-129, 85 Stat. 355, note following 5 U.S.C. § 7201 (1976 ed., Supp.IV), prohibits employment discrimination against United States citizens on military bases overseas unless permitted by "treaty." The question in this case is whether "treaty" includes executive agreements concluded by the President with the host country, or whether the term is limited to those international agreements entered into by the President with the advice and consent of the Senate pursuant to Art. II, § 2, cl. 2, of the United States Constitution. This issue is solely one of statutory interpretation.

I

In 1944, Congress authorized the President, "by such means as he finds appropriate," to acquire, after negotiation with the President of the Philippines, military bases "he may deem necessary for the mutual protection of the Philippine Islands and of the United States." 58 Stat. 626, 22 U.S.C. § 1392. Pursuant to this statute, the United States and the

Republic of the Philippines in 1947 entered into a 99-year Military Bases Agreement (MBA), Mar. 14, 1947, 61 Stat. 4019, T.I.A.S. No. 1775.1 The MBA grants the United States the use of various military facilities in the Philippines. It does not, however, contain any provisions regarding the employment of local nationals on the base. In 1968, the two nations negotiated a Base Labor Agreement (BLA), May 27, 1968, [1968] 19 U.S.T. 5892, T.I.A.S. No. 6542, as a supplement to the MBA. The BLA, inter alia, provides for the preferential employment of Filipino citizens at United States military facilities in the Philippines.2

In 1971, Congress enacted § 106 of Pub.L. 92-129, the employment discrimination statute at issue in this case.3 At the time § 106 was enacted, 12 agreements in addition to the BLA were in effect providing for preferential hiring of local nationals on United States military bases overseas. Since § 106 was enacted, four more such agreements have been concluded.4 None of these agreements were submitted to the Senate for its advice and consent pursuant to Art. II, § 2, cl. 2, of the Constitution.

In 1978, respondents, all United States citizens residing in the Philippines, were notified that their jobs at the United States Naval Facility at Subic Bay were being converted into local national positions in accordance with the BLA, and that they would be discharged from their employment with the Navy. After unsuccessfully pursuing an administrative remedy, respondents filed suit in the United States District Court for the District of Columbia, alleging that the preferential employment provisions of the BLA violated, inter alia, § 106. The District Court granted summary judgment for petitioners, Rossi v. Brown, 467 F.Supp. 960 (1979), but the Court of Appeals reversed. Rossi v. Brown, 206 U.S.App.D.C. 148, 642 F.2d 553 (1980). We in turn reverse the Court of Appeals.

II

Simply because the question presented is entirely one of statutory construction does not mean that the question necessarily admits of an easy answer. Chief Justice Marshall long ago observed that "[w]here the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived. . . ." United States v. Fisher, 2 Cranch 358, 386, 2 L.Ed. 304 (1805). More recently, the Court has stated:

"Generalities about statutory construction help us little. They are not rules of law but merely axioms of experience. They do not solve the special difficulties in construing a particular statute. The variables render every problem of statutory construction unique." United States v. Universal Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 229, 97 L.Ed. 260 (1952) (citations omitted).

We naturally begin with the language of § 106, which provides in relevant part as follows:

"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 be- cause such person is a citizen of the United States or is a dependent of a member of the Armed Forces of the United States." 85 Stat. 355, note following 5 U.S.C. § 7201 (1976 ed., Supp.IV) (emphasis added).

The statute is awkwardly worded in the form of a double negative, and we agree with the Court of Appeals that "[r]eplacing the phrase '[u]nless prohibited by' with either the words 'unless permitted by' or 'unless provided by' would convey more precisely the meaning of the statute, but we do not think that this awkward phrasing bears on congressional intent in selecting the word 'treaty.' " 206 U.S.App.D.C., at 153, n. 21, 642 F.2d, at 558, n. 21. Discrimination in employment against United States citizens at military facilities overseas is prohibited by § 106, unless such discrimination is permitted by a "treaty" between the United States and the host country. Our task is to determine the meaning of the word "treaty" as Congress used it in this statute. Congress did not separately define the word, as it has done in other enactments. Infra, at 30. We must therefore ascertain as best we can whether Congress intended the word "treaty" to refer solely to Art. II, § 2, cl. 2, "Treaties"—those international agreements concluded by the President with the advice and consent of the Senate—or whether Congress intended "treaty" to also include executive agreements such as the BLA.

The word "treaty" has more than one meaning. Under principles of international law, the word ordinarily refers to an international agreement concluded between sovereigns, regardless of the manner in which the agreement is brought into force. 206 U.S.App.D.C., at 151, 642 F.2d, at 556.5 Under the United States Constitution, of course, the word "treaty" has a far more restrictive meaning. Article II, § 2 cl. 2, of that instrument 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." 6

Congress has not been consistent in distinguishing between Art. II treaties and other forms of international agreements. For example, in the Case Act, 1 U.S.C. § 112b(a) (1976 ed., Supp.IV), Congress required the Secretary of State to "transmit to the Congress the text of any international agreement, . . . other than a treaty, to which the United States is a party" no later than 60 days after "such agreement has entered into force." 7 Similarly, Congress has explicitly referred to Art. II treaties in the Fishery Conservation and Management Act of 1976, 16 U.S.C. § 1801 et seq. (1976 ed. and Supp.IV),8 and the Arms Control and Disarmament Act, 22 U.S.C. § 2551 et seq. (1976 ed. and Supp.IV).9 On the other hand, Congress has used "treaty" to re- fer only to international agreements other than Art. II treaties. In 39 U.S.C. § 407(a), for example, Congress authorized the Postal Service, with the consent of the President, to "negotiate and conclude postal treaties or conventions." A "treaty" which requires only the consent of the President is not an Art. II treaty. Thus it is not dispositive that Congress in § 106 used the term "treaty" without...

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