                                                                        September 8, 1979


79-65       MEMORANDUM OPINION FOR THE
            COUNSEL TO THE PRESIDENT

            Merit Systems Protection Board—Term of Officer-
            Statutory Construction—5 U.S.C. § 1202


   This responds to the request o f your Office for our opinion on the ques­
tion whether the President’s nom ination o f Mr. A to be a member o f the
Merit Systems Protection Board (MSPB) correctly states the term o f the
office as expiring on March 1, 1981, or whether he should be nom inated
for a term o f 7 years. It is our opinion that the nom ination is correct as it
stands.
   The Merit Systems Protection Board was created by Reorganization
Plan No. 2 o f 1978' and was continued, as modified, by the Civil Service
Reform Act o f 1978, § 202(a).2 The plan was made effective January 1,
1979.1 The effective date o f th e Act was January 11, 1979.4 In creating the
Board the plan had provided simply: “ The United States Civil Service
Commission is hereby redesignated the Merit Systems Protection B oard.” 5
It also redesignated the commissioners as members o f the B oard.6 The Act
provides for appointm ent o f members o f the Board to 7-year term s,7 but
also contains a transition provision relating to the terms o f members serv­
ing on the Board on the effective date o f the A ct.8
   Commissioners o f the Civil Service Commission served 6-year terms
that were systematically staggered so that one term expired every 2 years.


  '43 F.R. 36037 (1978), reprinted in 5 U .S.C . § 1101 note (Supp. II, 1978).
  25 U.S.C. §§ 1201-1209 (Supp. Ill, 1979).
  ’Executive O rder No. 12107, § 1 , 5 U .S.C . § 1101 note (Supp. II, 1978).
  ■
  ‘Civil Service Reform Act of 1978, § 907, 5 U .S.C . § 1101, note (Supp. Ill, 1979).
  ’Reorganization Plan No. 2, § 201(a), 43 F.R. at 36038 (1978); 5 U .S.C . § 1101 note
(Supp. II, 1978).
  *Id .
   ’Civil Service Reform Act, § 202(a). Section 202(a) o f the Act added C hapter 12 to title 5,
United States Code. C hapter 12 consists o f §§ 1201-1209. The terms o f office o f the members
o f the MSPB are set by § 1202(a), 5 U .S.C . § 1202(a) (1979 Supp.).
   •Civil Service Reform Act o f 1978, § 202(b), 5 U.S.C. § 1201, note (Supp. Ill, 1979).

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W hen the commissioners were redesignated members o f MSPB, their
terms o f office remained the same and continued to be controlled by
5 U.S.C. § 1102.9 That section provided:
             (a) The term o f office o f each Civil Service Commissioner
          is 6 years. The term o f one Commissioner ends on March 1 o f
          each odd-num bered year.
             (b) A Commissioner appointed to fill a vacancy occurring
          before the end o f the term o f office o f his predecessor serves
          for the remainder o f that term. The appointm ent is subject to
          the requirements o f section 1101 o f this title.
             (c) W hen the term o f office o f a Commissioner ends, he
          may continue to serve until his successor is appointed and has
          qualified.
             (d) The President may remove a Commissioner.
Under § 1102 the terms o f the commissioners and, as o f January 1, 1979,
o f the members o f the MSPB were due to expire, sequentially, on March 1,
1979, 1981, and 1983.
   On January 1, 1979, Mr. S, former civil service commissioner, then a
member o f the M SPB, whose term was due to expire on March 1, 1981,
received a recess appointm ent to a different office. He was sworn in on
January 2. On that date he automatically vacated his office as a member
o f the B oard.10 The office that he vacated had not been filled by Jan­
uary 11, 1979, the effective date o f the A c t." The question presented is
whether the fact o f vacancy on that particular date worked an immediate
change in the term o f the office vacated, the one for which Mr. A has been
nom inated. We believe that it did not.
   The transition provision o f the Act reads:
      Any term o f office o f any member o f the Merit Systems Protec­
      tion Board serving on the effective date o f this Act shall continue
      in effect until the term would expire under section 1102 o f title 5,
      United States Code, as in effect immediately before the effective
      date o f this Act, and upon expiration o f the term, appointm ents
      to such office shall be made under sections 1201 and 1202 of
      title 5, United States Code (as added by this section).
Literally this provision is inapplicable to Mr. A ’s position. As written it
would seem to affect only the term o f the office that was actually filled on
January 11, 1979. A literal reading thus points to the conclusion that an
office such as the one with which we are concerned, in existence but vacant


   ’Civil Service Reform Act o f 1978 § 201(a), am ended, inter alia, 5 U .S.C . § 1102. As used
herein “ 5 U .S.C . § 1202” refers to that section o f title 5 as in effect immediately before the
effective date o f the Act.
   '“The law in effect on January 2 provided that commissioners o f the Civil Service Commis­
sion (who had been redesignated members o f the MSPB by that date) could not “ hold
another office or position in the Governm ent o f the United States.” 5 U .S.C . § 1101 (1976).
   "D ue to a com plicated chain o f events, two o f the three positions o f members o f the Merit
Systems Protection Board were vacant on the effective date o f the Act.

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on January 11, should be filled in accordance with the nontransitional
terms o f the Act—that is, with a person appointed for 7 years. However,
in our view Congress did not intend such a result.
    In explaining the transition provision the Senate report said:
      Subsection (e) provides that individuals currently serving on the
      Civil Service Commission, who will become members o f the
      Merit Systems Protection Board by virtue o f Reorganization
      Plan No. 2 o f 1978, will continue to hold their positions on the
      Board until their terms would otherwise have expired as members
      o f the Civil Service Commission (commissioners currently serve
      for six-year terms). If an individual now serving as a Civil Service
      Commissioner does not serve out the remainder o f his present
      term, an individual appointed to fill the vacancy will only serve
      for the remainder o f the six-year term established under the older
      law. Since the present terms o f the Commission are staggered,
      this procedure will assure that the new terms o f the members o f
      the Board will continue to be staggered.12
It is clear from this legislative history that the intent o f Congress in including
the provision in the Act was twofold. First, it wished to maintain continuity
with respect to the membership of the Merit Systems Protection Board. Sec­
ond, and more importantly, it intended to maintain continuity in the terms
o f office o f the members o f the Board. This is apparent not only from the
quoted legislative history o f the provision but also from its plain language.
This continuity, however, was based upon a congressional assumption that
the membership o f the Board would be fixed on the effective date o f the
Act. Given this assumption, the primary focus o f the transition provision
was on continuing, for an interim period, the terms o f office o f the members
o f the Board as they were established by Reorganization Plan No. 2—that
is, derivatively from 5 U.S.C. § 1102.13 The reason for this focus is clear. As
is unequivocally stated in the legislative history, it is to “ assure that the new
terms o f the members o f the Board will continue to be staggered,” as were
the terms of the former civil service commissioners.


     I2S. Rept. 969, 95th Cong., 2d sess. 28 (1978). Both the House and the Senate versions o f
the Civil Service Reform Act contained transition provisions identical to the one finally
enacted. Section 202(a) o f the Senate bill, S. 2640, 95th C ong., 2d sess. § 202(a) o f the Senate
bill, S. 2640, 95th C ong., 2d sess. § 202(a) (1978), would have added a new chapter 12, con­
sisting o f §§ 1201-1207, to title 5 o f the United States Code. The transition provision was
subsection (e) o f § 1202 to be added. In the House, the transition provision was § 202(b) o f
H. 11280, 95th C ong., 2d sess. (1978). The House report erroneously describes H. 11280,
§ 202(b), as establishing the Board. See H . Rept. 1403, 95th C ong., 2d sess. 20 (1978). A ctu­
ally, it was § 202(c) o f H. 11280, as reported, that established pay rates. See 124 C o n g re s ­
s i o n a l R e c o rd H. 9368 (daily ed., Sept. 11, 1978), H. 9676 (daily ed., Sept. 13, 1978).
     ' ’Under the provision, as its explanation emphasizes, the duration o f an initial term o f o f­
fice o f a member o f the “ new” (congressionally created) Merit Systems Protection Board
should not be changed by the resignation o f a form er m ember o f the Civil Service Com mis­
sion (whom Congress erroneously assumed would be serving on the Board on the effective
date o f the Act). Rather, the term should continue as unexpired and may be filled only for the
duration o f the period fixed by § 1102.

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    The question Mr. A ’s nom ination presents, therefore, is whether the
 words or intent o f § 1102 should govern the term o f office. Read literally
 the transition provision does not cover Mr. A and, therefore, he could
 receive a 7-year term. On the other hand, such a term would defeat the
 congressional intent o f providing systematically staggered terms. The
 problem arises because the factual situation here, a vacancy as o f Jan­
 uary 11, 1979, simply was not foreseen by Congress.
    It is a well-settled rule o f interpretation “ that a thing may be within the
 letter o f the statute and yet not within the statute, because not within its
 spirit, not within the intention o f its m akers.” Church o f the Holy Trinity
 v. United States, 143 U.S. 457, 459 (1892). In Church o f the Holy Trinity,
 the C ourt refused to apply to a contract between a religious corporation
 and a pastor a broadly worded statute that made it a crime to assist an
 alien’s immigration to the United States by entering a service contract with
 him previous to his entry. There was no doubt that the contract fell “ with­
 in the letter o f this section,” id., but the C ourt relied upon its understand­
 ing o f the harm the Act was meant to correct, expressed in the legislative
 history, to hold that the contract nevertheless was not to be included
within the prohibition.
    The Court has warned countless times “ against the dangers o f an ap­
proach to statutory construction which confines itself to the bare words of
a statute, e.g., Church o f the H oly Trinity v. United States, 143 U.S. 457,
459-462; Markham v. Catell, 326 U.S. 404, 409; for “ ‘literalness may
strangle m eaning,’ Utah Junk Co. v. Porter, 328 U.S. 39, 44.” Lynch v.
Overholser, 369 U.S. 705, 710 (1962). The D.C. Court o f Appeals has
stated this same principle as follows:
       * * * the plain meaning doctrine has always been considered
       subservient to a truly discernible legislative purpose * * * The
       use o f the legislative history to determine Congressional purpose
       is appropriate where * * * the literal words o f the statute
       would bring about an end completely at variance with the pur­
       pose o f the Act * * *. [Aviation Consumer Project v.
        Washburn, 535 F. (2d) 101, 106-107 (D.C. Cir. 1976).]
See also, Ozawa v. United States, 260 U.S. 178, 194 (1922) (“ We may look
to the reason o f the enactment and inquire into its antecedent history and
give it effect in accordance with its design and purpose, sacrificing, if
necessary, the literal meaning in order that the purpose may not fail,” )
and Helvering v. New York Trust Co., 292 U.S. 455, 464 (1934) (“ the ex­
pounding o f a statutory provision strictly according to the letter without
regard to other parts o f the Act and legislative history would often defeat
the object intended to be accomplished” ).
   This principle o f statutory interpretation has frequently been applied to
avoid constitutional problems; however, it is by no means limited to such
problems. For example Helvering, supra, held the capital gains tax provi­
sion applicable to property held by a trustee for less than 2 years, despite
language in the statute that on its face required that the property be held

                                      354
 more than 2 years. Again, in United States v. Public Utilities Commission,
 345 U.S. 295 (1953), the Court held that although a literal reading o f the
 Federal Power Act would exclude municipalities from the definition o f a
 “ person” subject to regulation by the Federal Power Commission, this ex­
clusion had in fact been inadvertent. In such circumstances, intent rather
than language, if they do not lead to the same result, should govern. 345
 U.S. 316. Similarly, in United States v. American Trucking Association,
 Inc., 310 U.S. 534, 543 (1940), the Court limited the reach o f the Interstate
Commerce Commission’s jurisdiction by reading a narrow interpretation,
based on the legislative history, into the word “ employee” (“ even when
the plain meaning did not produce absurd results but merely an
unreasonable one ‘plainly at variance with the policy of the legislation as a
whole,’ the C ourt has followed that purpose, rather than the literal
words.” ) 310 U.S. at 543. A final example of the C ourt’s using the pur­
pose o f a statute to discount the literal application o f its language is
Johansen v. United States, 343 U.S. 427 (1952). There the Court held that
despite the language o f the Public Vessels Act, which on its face granted to
anyone a right to bring suit against the United States “ for damages caused
by a public vessel o f the United States,” Congress had no intention to
grant this right to U.S. employees and therefore they were not to be in­
cluded within its scope.
    In sum, “ when aid to construction of the meaning o f words, as used in
the statute, is available, there certainly can be no ‘rule o f law’ which for­
bids its use, however clear the words may appear on ‘superficial examina­
tio n .’ ” American Trucking Association, Inc., supra, at 543-544. In the
case at hand the language is superficially clear, but the factual
situation—resignation o f a member between January 1 and January 11,
 1979—was not one that Congress contem plated. In applying the statute to
these facts, the above cases make clear that congressional intent should
preempt literal meaning.
   The major, expressed intent of Congress in including the transition provi­
sion in the Act was to “ assure that the new terms o f the members o f the
Board will continue to be staggered.” We take the intent to stagger to be an
important one, since historically Congress has consistently provided for the
systematic staggering of the terms o f the heads of the major multimember
independent agencies. Quite to the contrary of what Congress intended to
achieve by the provision, a literal reading of the transition provision would
assure, given the fact o f the vacancy, that the new terms of members of the
Merit Systems Protection Board would never be systematically staggered.
That intent, however, should not be lightly frustrated by a wooden applica­
tion of the provision designed to effectuate it. This is especially true when
such an application would do nothing to further any demonstrable purpose
o f the provision and is a possibility only because Congress made an assump­
tion o f fact that turned out to be erroneous.
   We believe that the correct construction o f the transition provision is
that it continued unchanged, the terms o f office of all three members o f

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the MSPB in existence on the effective date o f the Act, whether occupied
or n o t.'4 In our view, this is the only construction that will effectuate the
clearly expressed intent o f Congress. M oreover, it avoids the unreasonable
and unintended result that a congressionally unanticipated vacancy on
January 11 should result in a term for the vacant office different from that
which would have resulted from a vacancy on any other day, a result dif­
ferent from that which Congress contem plated, and different from that
dictated by the intent o f Congress ultimately to ensure systematically stag­
gered terms for the members o f the Merit Systems Protection Board.
    For the reasons stated we believe that the term o f the office o f member
o f the Merit Systems Protection Board that Mr. A has been nominated to
fill will expire on March 1, 1981.

                                                  John M. H      arm on

                                            Assistant A ttorney General
                                                          Office o f Legal Counsel




   “ We note further that the appointm ent o f Ms. P to the MSPB implicitly adopted the inter­
pretation presented here. The position she took was also one that was vacant on January II,
1979. Her term o f office, however, runs from March 1, 1979, which is the date the term of of­
fice o f the commissioner she replaced would have term inated. This means that it was as­
sumed that the term o f office o f the m em ber who resigned continued beyond January 11 to
March 1, 1979, despite the resignation.

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