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01/21/83 Appellant v. Honorable Harold Brown

January 21, 1983




Before plunging into the intricacies of the mariners' pay-setting statute, § 5348, and of the pay cap contained in § 5373, it is useful to make three basic observations about the universe of federal pay systems and where this case fits with it. First, there are many different federal civilian pay systems. They include: the General Schedule (the basic pay system for federal white-collar employees); the Foreign Service schedules; the schedules for the Department of Medicine and Surgery at the Veterans' Administration; the U.S. Postal Service pay system (which includes a schedule determined through collective bargaining); the Executive Schedule (for key management and policymaking positions); the Federal Wage System (the basic pay system for blue-collar employees); and, depending on the degree of disaggregation, over forty other, separate pay systems. These pay systems vary considerably in numbers of employees covered and method of determining pay. See Staff Report of the President's Panel on Federal Compensation, 1-5, 159-62 (1976) (" Rockefeller Report ").6

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 79-01074).


Wilkey and Wald, Circuit Judges and McGowan, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge Wald.


This case is about the legality of a "pay cap" on the salaries of high ranking civilian mariners employed by the United States government. The statutory question is whether 5 U.S.C. § 5373, *fn1 which limits the basic rate of pay "fix[ed] by [executive branch] administrative action" to the maximum rate for grade GS-18, applies to 5 U.S.C. § 5348, *fn2 which requires the government to fix the pay of its civilian mariners "as nearly as is consistent with the public interest in accordance with prevailing rates and practices in the maritime industry."

The International Organization of Masters, Mates & Pilots 3 sought declaratory and injunctive relief in the district court against a binding determination by the Comptroller General, 56 Comp. Gen. 870 (1977), reprinted in Joint Appendix at 31, that § 5373 does indeed limit the basic rate of pay of civilian mariners to the maximum GS-18 rate. The MM&P brought the action against the Secretaries of Defense, Navy, and Commerce; the Commanding Officer of the Military Sealift Command ; the Administrator of the National Oceanic and Atmospheric Administration -- all in their official capacities as government employers of civilian mariners -- as well as against the Comptroller General.

The MM&P now appeals from the district court's granting of the government's motions (1) to dismiss the action as to the Secretary of Commerce and the Administrator of the NOAA for lack of standing,4 and (2) for summary judgment on the issue of whether the § 5373 "pay cap" applies to the mariners. See International Organization of Masters, Mates & Pilots v. Hon. Harold Brown, et al., No. 79-1074 (D.D.C. Aug. 6, 1981), reprinted in J.A. at 114 et [hereinafter cited as District Court opinion]. Since the MM&P had undisputed standing to assert a claim against some government defendants, and since we affirm the district court's judgment against the MM&P on the merits of the action, we believe there is no need for us to review the dismissal for lack of standing.5 As to the main cause of action, we find that the district court concluded correctly both that no material facts are in dispute, and that § 5373 limits the pay for mariners set pursuant to § 5348. I. BACKGROUND

Second, although some pay systems are "linked" to one another, Congress has not fastidiously integrated all the systems to achieve uniform federal compensation policies. Instead, Congress has frequently, and sometimes haphazardly, soldered different pay ladders together at various points to construct a semblance of structure. Third, at times the alloys linking pay systems break under the stress of shifting salary scales or conflicting pay policy objectives.7 This case involves one such crack in that amalgam.

The tension between § 5348 (the mariners' pay section) and § 5373 (the GS-18 pay cap section) surfaced in September 1975, when an NOAA employee requested advice from the Comptroller General8 on the applicability of the § 5373 pay cap to seamen employed by the NOAA:

At the present time, if we continue the present method of application of industry rates, as prescribed by

J.A. at 73. The NOAA's letter noted that the MSC did not believe the limitation applied, and that the MSC had established rates of pay for its mariner employees in excess of the GS-18 cap. Id.

The Comptroller General asked for and received comments from the Defense Department, the Civil Service Commission (now the Office of Personnel Management), the Marine Engineers Beneficial Association, and the MM&P on the question posed by the NOAA. J.A. at 32-34, 37-50. All four organizations initially opined that the § 5373 cap did not apply to mariners whose pay is set in accordance with the prevailing rate provisions of § 5348.9 Id. Nevertheless, the Comptroller General's Office concluded on August 9, 1977, "that pay for crews of vessels set under section 5348 constitutes pay fixed by administrative action as contemplated under section 5363 [now codified at § 5373] and that agency heads must set pay rates under section 5348 subject to an annual basic pay ceiling of the maximum rate for grade GS-18." J.A. at 36.

The MM&P then filed a complaint for declaratory and injunctive relief against both the Comptroller's decision and the agency defendants' adherence to it. The MM&P alleged that the MSC and the NOAA were bound by statute and contract to pay the MM&P's members the rates received by private mariners. The MM&P also alleged that it had executed union contracts with both the MSC and the NOAA in reliance on prior government practice under § 5348. According to that practice, the MM&P maintained, the MSC and the NOAA had set government mariners' wages in line with the rates set in industry-wide agreements between the MM&P and commercial marine employers.

The MM&P then filed a request for production of documents relating to the government's past and present interpretation of both the relevant pay statutes and the collective bargaining arrangements. J.A. at 19-20. The government filed a motion to stay discovery, J.A. at 108, which the court granted on January 29, 1980, J.A. at 109. The government then moved to dismiss the Secretary of Commerce and the Administrator of the NOAA as defendants for lack of standing, and also moved for summary judgment as to the remaining government defendants. J.A. at 21. The district court's grant of the government's motions to dismiss and for summary judgment on December 23 and 31, 1980, respectively, gave rise to the present appeal. II. ANALYSIS

A. Introduction

We do not find a direct answer to the question of whether the § 5373 pay cap applies to government mariners whose pay is set in accordance with the prevailing rate provisions of § 5348 in the statutory language, legislative history, or case law. Instead, our conclusion that § 5373's pay limitation governs the mariners is rooted in a mix of all three sources of authority. We reach this result through a three-step process. First, to determine whether Congress probably intended the 1964 pay limitation to extend to the mariners' existing and separate pay statute, we review the legislative history of both statutes in the context of contemporaneous changes in the overall federal pay system. Second, since the cap applies to pay "fix[ed] by administrative action," § 5373 (emphasis added), we must examine what Congress has, over time, considered this phrase to mean -- to determine if the meaning includes the mariners' pay system. For this analysis, we turn to two sources: references to administrative pay-setting during Congress' 1972 overhaul of the prevailing wage rate system (which included the reenactment of the mariners' pay statute); and Congress' use of the term "administrative action" at other times to refer to prevailing wage rate systems like the mariners' pay statute. Third, we review judicial interpretations of the statutes establishing both the general prevailing wage rate system and the mariners' prevailing rate system to determine whether they have classified the type of paysetting discretion involved in § 5348 as administrative, as opposed to statutory action. In addition, we examine but reject the MM&P's arguments that summary judgment was inappropriate on the record before the district court.

B. Legislative History of the Mariners' Pay System and the Pay Cap.

The present pay system for civilian crews of United States vessels has its origins in the Federal Employees Pay Act of 1945, Pub. L. No. 79-106, 59 Stat. 295, which stated at § 606, 59 Stat. 304 ("1945 Pay Act"):

Employees of the Transportation Corps of the Army of the United States on vessels operated by the United States, . . . and vessel employees of the Panama Railroad Company, may be compensated in accordance with the wage practices of the maritime industry.

(Emphasis added.) This statute suggested that the government officials should set mariners' pay after comparing prevailing private sector wages, but it did not require comparable pay. However, in the Classification Act of 1949, Pub. L. No. 81-429, 63 Stat. 954 ("1949 Classification Act"), Congress amended the mariners' pay provision to make the prevailing rate system mandatory:10

[The compensation of] officers and members of crews of vessels . . . shall be fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with the ...

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