                                                                        January 2, 1979


79-1        MEMORANDUM OPINION FOR THE
            GENERAL COUNSEL, DEPARTMENT OF
            ENERGY

            Department of Energy—Civil Service Commission—
            Number of Supergrade Positions the Secretary of
            Energy May Fill Pursuant to the Department of
            Energy Organization Act (42 U.S.C. § 7101)

  This responds to your request for our opinion concerning the authority
of the Secretary of Energy (Secretary) under the Department of Energy
Organization Act (DEOA) or (Act)1 to fill 20 supergrade positions
originally authorized by the Economic Stabilization Act of 1970 (ESA)2
and carried forward by the Emergency Petroleum Allocation Act o f 1973
(EPAA).J We conclude that the interpretation of the DEOA by the Civil
Service Commission (CSC) is correct and that those positions are not
available to the Secretary.
   The 20 supergrade positions at issue were created by § 212(d) of the ESA4
and carried forward by § 5(a) of the EPA A.5 When the Federal Energy
Administration of 1974 (FEAA) was enacted,6 President Nixon delegated
his authority under the EPAA to the Federal Energy Administration


   1 Pub. L. No. 95-91, 91 Stat. 565 (1977), codified at 42 U.S.C. § 7101 et seq. -
   1 Pub. L. No. 91-379, 84 Stat. 796 (1970), as amended by Pub. L. No. 91-558, Title II,
§ 201, 84 Stat. 1468 (1970), Pub. L. No. 92-8, § 2, 85 Stat. 13 (1971), Pub. L. No. 92-15, § 3,
85 Stat. 38 (1971), Pub. L. No. 92-210, § 2, 85 Stat. 743 (1971), Pub. L. No. 93-28, §§ 2-8,
87 Stat. 27 (1973), reprinted at 12 U.S.C. § 1904 note.
  1 15 U.S.C. § 751 etseq.
  • Pub. L. No. 92-210, § 212(d), 85 Stat. 743, 751 (1971), reads as follows:
        (1) In addition to the number of positions which may be placed in GS-16, 17, and 18,
     under section 5108 of title 5, United States Code, not to exceed twenty positions may be
     placed in GS-16, 17, and 18, to carry out the functions under this title.
        (2) The authority under this subsection shall be subject to the procedures prescribed
     under section 5108 of title 5, United States Code, and shall continue only for the dura­
     tion of the exercise of functions under this title.
   ’ 15 U.S.C. § 754(a)(1)(B).
  ‘ 15 U.S.C. § 761 et seq.

                                             1
(FEA) Administrator.7 The DEO A transferred all the functions of the
FEA to the Secretary," and saved all authority available to the President
immediately prior to the effective date of the Act.9 It is arguable that the
authority for the 20 supergrades has never lapsed and presently resides in
the Secretary. You contend that § 621(d) of the DEOA expressly preserves
the § 212(d) authority by providing that the Secretary may fill 200 super­
grade positions “ in addition to the number of positions which may be
placed at GS-16, GS-17 and GS-18 under section 5108 of title 5, United
States Code, under existing law, or under this A ct.” 10
   Although your contention is not without force, our analysis of the statu­
tory structure and purpose leads us to conclude as follows: (1) recognition
of the 20 additional supergrade positions would be inconsistent with the Act
and congressional intent; (2) the phrase “ under existing law” in § 621(d)
was not intended to refer to § 212(d) of the ESA; and thus (3) the authority
provided by § 212(d) is not available to the Secretary.

                        Supergrade Positions Under DEOA
   Section 621 of the Act gives the Secretary the authority to fill a total of
689 supergrade positions. Some must be filled pursuant to the civil service
laws, others are exempt, and still others are initially exempt but will eventu­
ally be covered." The CSC contends that the 689 positions represent the


 7 Exec. Order No. 11790, § 2(a), 39 F.R. 23185 (1974).
 ■ § 301(a), 42 U.S.C. § 7151(a).
 * § 708, 42 U.S.C. § 7298.
 10 42 U.S.C. § 7231(d).
 " § 621, 42 U.S.C. § 7231, provides, in relevant part:
       (b)(1) Subject to the limitations provided in paragraph (2) and to the extent the
    Secretary deems such action necessary to the discharge of his functions, he may ap­
    point not more than three hundred eleven of the scientific, engineering, professional,
    and administrative personnel of the department without regard to the civil service laws,
    and may fix the compensation of such personnel not in excess of the maximum rate
    payable for GS-18 of the General Schedule under section 5332 of Title 5 [United States
    Code].
          (2) The Secretary’s authority under this subsection to appoint an individual to such
    a position without regard to the civil service laws shall cease
          (A) when a person appointed, within four years after the effective date of this
        chapter, to fill such position under paragraph (1) leaves such position, or
          (B) on the day which is four years after such effective date, whichever is later.
      (c)(1) Subject to the provisions of chapter 51 of Title 5 [United States Code], but not­
    withstanding the last two sentences of section 5108(a) of such title, the Secretary may
    place at GS-16, GS-17, and GS-18, not to exceed one hundred seventy-eight positions of
   the positions subject to the limitation of the first sentence of section 5108(a) of such title.
          (2) Appointments under this subsection may be made without regard to the provi­
   sions of section 3324 of Title 5 [United States Code], relating to the approval by the Civil
   Service Commission of appointments under GS-16, GS-17, and GS-18 if the individual
   placed in such position is an individual who is transferred in connection with a transfer
   o f functions under this chapter and who, immediately before the effective date of this
 , chapter, held a position and duties comparable to those of such position.
          (3) The Secretary’s authority under this subsection with respect to any position
   shall cease when the person first appointed to fill such position leaves such position.
                                                                                     (Continued)

                                                 2
total number of supergrade positions presently available to the Secretary.
The Department of Energy (DOE) asserts that § 621 is not exclusive and
that the 689 figure is not an absolute limit. Resolution of this issue requires
a detailed analysis of the history of § 621.
   The provisions concerning supergrade positions underwent substantial
change as the DEOA progressed through Congress. The Senate bill,
S. 826, gave the Secretary the authority to fill 600 “ scientific, engineering,
professional, and administrative” supergrade positions without regard to
civil service laws.12 It further provided:
      In addition to the number of positions which may be placed in
      grades GS-16, 17, and 18 under section 5332 of title 5, United
      States Code, under existing law or this Act, not to exceed one
      hundred and fifty positions may be placed in grades GS-16, 17,
      and 18 to carry out functions under this Act. Positions estab­
      lished by this subsection shall be subject to standards and pro­
      cedures under chapter 51 of title 5, United States Code.15
The bill, as passed by the Senate, vested the Secretary with the authority to
fill 750 supergrade positions. It thus provided for approximately 75 more
supergrade positions than were authorized for the agencies to be merged
into DO E.14 These extra positions, it was asserted, would allow for “ room
for growth” in the new department.15 The provisions concerning super­
grades received virtually no attention in Senate deliberations on the DEOA.
    In the House, the supergrade positions were a major subject of discus­
sion. H.R. 6804 as reported by the House Committee on Government


 (Continued)
         (d)    In addition to the number of positions which may be placed at GS-16, GS-17, and
      GS-18 under section 5108 of Title 5 [United States Code], under existing law, or under
      this chapter and to the extent the Secretary deems such action necessary to the discharge
      of his functions, he may appoint not more than two hundred of the scientific, engineer­
      ing, professional, and administrative personnel without regard to the civil service laws
      and may fix the compensation of such personnel not in excess of the maximum rate
      payable for GS-18 of the General Schedule under section 5332 of Title 5 [United States
      Code].
   12 S. 826, 95th Cong., 1st sess. § 611 (1977).
   '> Id., § 612(b).
   '* See Department of Energy Organization Act; Hearings on H.R. 4263 Before the Sub­
committee on Legislation and National Security of the House Committee on Government
Operations, 95th Cong., 1st sess. 83-84 (1977) (testimony of James R. Schlesinger); Federal
Personnel for the Proposed Department of Energy: Hearings on H.R. 4263 Before the Sub­
committee on Employee Ethics and Utilization o f the House Committee on Post Office and
Civil Service, 95th Cong., 1st sess. 3 (1977) (statement of Robert F. Allnutl, Acting Assistant
Administrator for Administration, Energy Research and Development Administration
(ERDA)). H.R. 4263 was the companion bill to S. 826.
   Presumably, DOE would assert that under the Senate bill the Secretary was not limited to
750 supergrade positions because § 612(b) includes the phrase “ in addition to the number of
positions which may be placed * * * under existing law.” However, we are satisfied that
the original bill did intend to limit the total number of positions to 750 and that the phrase
“ under existing law” was not intended to increase the number.
   " Hearings Before the Subcommittee on Employee Ethics, supra, note 14 at 16.

                                             3
Operations gave the Secretary the authority to appoint, without regard to
the civil service laws, “ not more than the number of scientific, engineer­
ing, and professional supergrade personnel” then authorized for ERD A .'6
Furthermore, the Secretary could fill up to 105 supergrade positions “ in
addition to the number of positions which may be placed in grade 16, 17
and 18 of the General Schedule under section 5108 of title 5, United States
Code, or under * * * the A ct.” 17
   By these provisions, the Government Operations Committee sought to
transfer to the newly established DOE all the supergrade positions
authorized for the agencies to be merged into DOE. The Committee
carefully identified 689 extant supergrade positions:
           Energy Research and Development Administration -        511
           Federal Energy Administration                      -    105
           Federal Power Commission                           -     52
           Department of the Interior                         -     11
           Other agencies________________________________           10
                                                                    689
H.R. 6804 carried over 511 scientific, engineering, and professional posi­
tions then authorized for ERDA and 105 positions then authorized for
FEA. The Committee Report provided for the 105 FEA supergrade posi­
tions because they were “ authorized pursuant to the provisions of the
FEA Act which will terminate upon enactment of this legislation.” ' 8 No
mention was made of the remaining transferred positions since they were
“ presently authorized under civil service laws and will continue to be so
after the positions are transferred to DOE.” 19 Thus, unlike the Senate bill,
the House bill, as originally reported, sought to limit the number of super­
grade positions in DOE to those then existing in agencies to be merged into
the new department: “ The intent of the committee is to make no change in
existing law regarding supergrade positions in the affected agencies, except
to impose a ceiling at the current level of such positions connected with all
transferred functions.” 20
   The House Committee on Post Office and Civil Service proposed
amendments to H.R. 6804 on the subject of the number of exempt
supergrade positions, and it requested sequential referral of the bill after
the Government Operations Committee refused to accept these amend­
ments. The Civil Service Committee believed that H.R. 6804, as reported,
would “ dangerously dilute existing controls over a bureaucracy which is
rapidly becoming uncontrollable;” it was “ deeply concerned” about the
provisions giving the Secretary authority to fill large numbers of


 11 H.R. 6804, 95th Cong., 1st sess. § 607 (1977).
 ” Id., § 608(b).
 " H. Rept. 346, Part I, 95th Cong., 1st sess. 12, 28 (1977).
 " Id., at 12.
 20 Id., at 12.

                                            4
 supergrade positions outside the purview of the civil service laws and
 establishing a special authority for 105 supergrades.21 Accordingly, the
 Committee proposed amendments, later accepted by the House, giving the
 Secretary the authority to fill 350 supergrade positions subject to the civil
 service laws22 and only 200 supergrade positions exempted from the civil
 service laws.23 However, while the Committee changed the method of ap­
 pointment, it did not seek to alter the total number of supergrades pro­
 vided for by the Government Operations Committee:
      This committee understands that it is the intent of the Govern­
      ment Operations Committee to provide supergrade authorization
      in H.R. 6804 to an extent equivalent to that existing under pres­
      ent law. No new authorization, that is, authorization in excess of
      that provided under existing law, is intended.24
The Conference Committee adopted § 621 of the Act as a compromise be­
tween the House and Senate bills.25 The Act provides for (1) 311 scientific,
engineering, professional, and administrative supergrades,26 (2) 178 su­
pergrade positions to be allocated from CSC’s pool under 5 U.S.C. 5108,27
and 200 supergrade positions exempt from the civil service laws. While
there is no stated reason for selecting these individual figures,28 we believe
that the Conference adopted the House’s proposal and “ [t]he conferees
agreed to assign to DOE 689 supergrade positions which represent the
same number of positions as are presently authorized for functions to
be transferred to DOE.” 29 Representative Schroeder, a conferee and
member of the House Committee on Post Office and Civil Service,
defended the conference report before the House, stating, “ [W]e retained
the House position and there will be no more supergrades in the new


    21 H. Rept. 346, Part II, 95th Cong., 1st sess. 5 (1977).
    11 These supergrade positions would be allocated to the agency from the CSC pool of
 supergrade positions authorized for the Federal Government as a whole, pursuant to 5
 U.S.C. 5108. Accordingly, the House adopted an amendment to § 5108 increasing the pool
 by 350. H.R. 6804, 95th Cong., 1st sess. § 7l4(c)(1977).
    21 While the amendments of the Committee on the Post Office and Civil Service only
authorized the total of 550 exempt and nonexempt supergrade positions for DOE, the Com­
mittee noted that 73 additional positions were already allocated by CSC from its § 5108 pool
to existing agencies and would be transferred to DOE. Furthermore, CSC could allocate addi­
tional supergrades to DOE to fill “ professional engineering positions primarily concerned
with research and development and professional positions in the physical and natural sci­
ences and medicine” which are excepted from the overall pool limit. See 5 U.S.C. § 5108.
   24 H. Rept. 346, Part II, at 7. See 123 C on g . R ec . H. 5280 (daily ed., June 2, 1977)
(remarks of Representative Schroeder); id. at H. 5283 (remarks of Representative Gilman).
   21 The provisions concerning supergrade positions adopted by the Conference are substan­
tially different from both the Senate and House bills. Indeed, Representative Bauman
asserted that the Conference exceeded its mandate in devising the new provisions. 123 C o n g .
Rec . H. 8250 (daily ed., Aug. 2, 1977).
   2‘ These positions would initially be filled without regard to the civil service laws but would
be subject to the civil service laws as soon as the original appointee left office or after 4 years,
whichever is later. § 621(b), 42 U.S.C. § 7231(b).
   2,To accommodate these new “ pool” positions, § 710(b) o f the Act added 489 positions to
the § 5108 pool.
   21 The number 178 for § 621(c) appears to represent FEA’s authorization (105) plus 73
supergrades assigned to agencies other than ERDA.
   ” S. Rept. 367, 95th Cong., 1st sess. 93 (1977).

                                               5
agency than there are in all agencies that are consolidated into the Depart­
ment of Energy * * * [I]t was very hard to get the Senate to yield to the
 House position of no new additional supergrades.” 30
     We believe that Congress intended to give the Secretary the authority to
 fill only 689 supergrade positions in the new department—the number
then authorized in the “ other agencies that are being melded into the
Department of Energy.” 31 Representative Horton explained, “ what we
did when we got to the conference was to determine that there are now 689
authorized supergrades.” 32
    The DOE argues that, while it is clear that § 621 was intended to
authorize only 689 positions, that number was not an overall limit under
the Act and was not intended to override additional sources of appoint­
ment authority. We disagree. It is clear that Congress intended to
authorize in § 621 all the supergrade positions then authorized for the
preexisting agencies and administrations. It calculated the number of
authorized positions as 689.
     Moreover, we believe that the 689 figure already includes the 20 super­
grades at issue here; thus to read the Act as preserving § 212(d) would be to
double-count these positions.
    As noted above, the EPAA carried forward § 212(d) of the ESA. One
year after passage of the EPAA, Congress enacted the FEAA. That Act
did not repeal the EPAA; and § 7(a) provided:
       In addition to the number of positions which may be placed in
       GS-16, 17, and 18 under existing law, not to exceed 91 positions
       may be placed in GS-16, 17, and 18 to carry out the functions
       under this chapter: Provided, That the total number of positions
       within the Administration in GS-16, 17, 18 shall not exceed
       105 * * * . [15 U.S.C. § 766(a)(1).]
Presumably the 20 supergrade positions carried forward by the EPAA
would be included in the phrase “ under existing law.”
    When Congress tallied up the total number of supergrades, it counted
FEA’s share as 105. It appears to have included the 20 supergrade posi­
tions in the 105,33 and it made no mention of, or provision for, § 212(d) of
the ESA. Thus, either Congress treated § 212(d) of the ESA as merged into
FEA’s share or it transferred to the Secretary the portion of § 212(d)
authority given to the FEA Administrator. In either case, to permit the
Secretary to fill additional supergrade positions beyond the 689 authorized
by § 621 would be to double-count at least a portion of the positions
authorized by § 212(d) of the ESA.34


  10 123 C o n g . R ec . H. 8257 (daily ed., Aug. 2, 1977).
  J1 Id., at H. 5281 (daily ed., June 2, 1977).
  ” Id., at H. 8262 (daily ed., Aug; 2, 1977).
  ” See Hearings, supra, at 626, note 14 (table compiled by Comptroller General indicating
that 105 FEA positions to be transferred to DOE include the 20 authorized by the ESA).
  14 It may be argued that § 7(a) merely “ held in abeyance” a portion of the authority to ap­
point the 20 supergrades (given the fact that the FEA Administrator could appoint 91
                                                                                 (Continued)

                                                 6
  Further, we believe that the phrase “ under existing laws” in § 621(d)
was not intended to resurrect or recognize § 212(d) of ESA.
  The relevant statutory language provides:
      In addition to the number of positions which may be placed at
      GS-16, GS-17, and GS-18 under section 5108 of Title 5, [United
      States Code] under existing law, or under this chapter and to the
      extent the Secretary deems such action necessary to the discharge
      of his functions, he may appoint not more than two hundred of
      the scientific, engineering, professional, and administrative
      personnel without regard to the civil service laws and may fix the
      compensation of such personnel not in excess of the maximum
      rate payable for GS-18 of the General Schedule under section
      5332 of Title 5 [United States Code].35 [Emphasis added.]
   The language of § 621(d) is not readily susceptible to a satisfactory
parsing and there are two possible interpretations of this subsection. On
the one hand, the use of the word “ under” in three subsequent phrases
separated by commas may be interpreted to identify three sources of
supergrade positions, namely, (1) section 5108, (2) “ existing law,” and (3)
the provisions of the Act.
   Alternatively, this subsection may be interpreted to contemplate only
two sources of supergrade authority: (1) section 5108, and (2) the provi­
sions of the Act, so that the phrase “ under existing law” would refer to
the number of supergrade positions authorized and allocated by CSC.36
Under this interpretation, the Secretary would have the authority to ap­
point 200 supergrades in addition to those supergrade positions authorized
elsewhere in the Act and any supergrade positions that CSC has already
allocated or may allocate from its section 5108 pool.
   Neither interpretation is entirely satisfactory. Under the first reading
(urged by DOE), the phrase “ under section 5108 of title 5, United States
Code,” is redundant because it would be clearly included in the phrase
“ under existing law.” Under the second interpretation (urged by CSC),


(Continued)
supergrades up to a limit of 105 positions overall) and that this restriction was lifted once the
limit of 105 was terminated. This interpretation would, however, effectively authorize new
supergrade positions—a result contrary to congressional intent. As indicated by the House
Committee on Government Operations, its intent was to “ impose a ceiling [on supergrade
positions] at the current level.” H. Rept. 346, part I, at 12. To the extent the full power to ap­
point under § 212(d) of the ESA was suspended by the FEAA, such a suspension was carried
forward by the DEOA.
   The probability that Congress considered § 212(d) of the ESA to have merged into § 7(a) of
the FEAA may explain why the DEOA makes no mention of § 212(d), although it repeals
§ 7(a) of the FEAA and states that § 161(d) o f the Atomic Energy Act (also relating to ap­
pointment of personnel) shall not apply to functions transferred under the DEOA. See
§ 709(a)(2), (c)(2).
   ” 42 U.S.C. § 7231(d) [Emphasis added.]
     It should be recalled that at the time of the passage of the Act, 73 supergrade positions
had already been allocated by CSC from its § 5108 pool to functions that were to be trans­
ferred to DOE. See H. Rept. 346, Part II, at 7.

                                                7
the phrase “ under existing law” appears to add nothing to the phrase
“ under section 5108.” 37
   We find the interpretation of the statute rendered by CSC more persua­
sive and we do not believe that the phrase “ under existing law” was
intended to collect unexpired or unrepealed grants of authority for
supergrade positions. Accepting DOE’s interpretation of the phrase and in­
cluding the 20 supergrade positions authorized by § 212(d) of the ESA
would be contrary to the intent of Congress to limit DOE to 689 positions.
We believe that § 621(d) authorized the Secretary to fill up to 200 exempt
supergrade positions in addition to the supergrade positions he may fill pur­
suant to other provisions of the Act or as are allocated to DOE by CSC.
   We concur with CSC’s statement that by authorizing 689 positions
“ Congress was well aware of all the laws under which energy functions
were performed and that Congress’ purpose was to merge and consolidate
the laws and their functions into the newly created functions of DOE.”
Also, we believe that the number of authorized positions was not an ab­
solute limit. At a request, additional positions may be allocated to DOE by
CSC pursuant to 5 U.S.C. § 5108. However, at its commencement, the
new department was authorized only 689 supergrade positions.
   We do not believe that § 212(d) of the ESA survived the passage of
DEOA.3*

                                                    Jo h n M . H a rm o n
                                              Assistant Attorney General
                                                           Office o f Legal Counsel

   ” The legislative history is of little assistance in construing the language of § 621(d). The
conference report does not explain the origin or meaning of the phrase.
   The original Senate bill, S. 826, 95th Cong., 1st sess. § 612(b) (1977), used the phrase
“ under existing law” in the following context:
      In addition to the number of positions which may be placed in grades GS-16, 17, and 18
      under section 5332 o f title 5, United States Code, under existing law or this Act, not to
      exceed one hundred and fifty positions may be placed in grades GS-16, 17 and 18 to
      carry out functions under this Act. [Emphasis added.)
         If the phrase were intended to identify additional supergrade positions, S. 826 would
      have to be read as authorizing at least 125 positions (from FEAA and ESA) beyond the
      750 explicitly provided for. Yet it is clear that this accretion in supergrade positions was
      not intended by the bill. See S. Rept. 367, at 92-93 and note 14, supra. Rather, the
      phrase most probably refers to positions already authorized and allocated pursuant to 5
      U.S.C. § 5108. But see § 7(a) of the FEAA (phrase “ under existing law” in context
      similar to § 621(d) of DEOA appears to refer to other laws authorizing supergrade posi­
      tions and not merely 5 U.S.C. § 5108).
   3* We are aware that implied repeals o f specific statutory provisions are disfavored. See,
United States v. United Continental Tuna Corp., 425 U.S. 164, 168-69 (1976); Regional Rail
Reorganization A ct Cases, 419 U.S. 102, 133-34 (1974). Although it is the duty of courts to
strive to interpret statutory language to further coexistence of two potentially conflicting
statutes, see, Morton v. Mancari, 417 U.S. 535, 551 (1974), we do not believe that the clear
intent of Congress should be ignored in order to save an otherwise displaced statutory subsec­
tion. Furthermore, DEOA is a reorganization act that supplants a number o f earlier statutes
in the same field of law. It thus appears more analogous to a statute that substitutes for an
earlier statute, see, Posadas v. National City Bank, 296 U.S. 497, 503 (1936) and Plains Elec.
Generation and Transmission Cooperations, Inc. v. Pueblo o f Laguana, 542 F. (2d) 1375
(10th Cir. 1976), than a general statute in one area of law that conflicts with a specific statute
in another area of law. See, Regional Rail Reorganization A ct Cases, supra, and Morton v.
Mancari, supra.

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