STEWART v. SMITH

Opinion for the Court filed by Circuit Judge WALD.

Dissenting opinion filed by Circuit Judge WRIGHT.

WALD, Circuit Judge:

Appellants, Daryl Stewart and Audrey Herbst, brought this action to challenge the Bureau of Prisons' ("BOP") policy of refusing to consider for jobs within correctional facilities any applicant who is over thirty-four years of age.1 Appellants contend that BOP's policy (1) violates the Age Discrimination in Employment Act, 29 U.S.C. § 633a ("ADEA"); (2) is arbitrary and capricious and thus invalid under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A); and (3) was adopted in contravention of the notice and comment rulemaking requirement of the APA, 5 U.S.C. § 553. Appellants also argue that the district court erred by remanding this case to the Office of Personnel Management ("OPM") for a detailed review of the propriety of BOP's policy with respect to each job classification in prison facilities. For the reasons set forth below, we affirm the district court's order upholding BOP's maximum age policy and granting summary judgment to appellees.

I. BACKGROUND

A. Statutory Authority for Maximum Age Policies

In 1974, Congress enacted Public Law 93-350, 88 Stat. 355, a major piece of legislation designed to enhance the "youth and vigor" of federal law enforcement personnel.2 Together with provisions on mandatory retirement3 and incentives for early retirement,4 Public Law 93-350 provided agencies employing law enforcement officers with authority to set maximum ages for appointment to law enforcement positions. See 5 U.S.C. § 3307(d).5 To set such a maximum age rule, an agency first had to receive the concurrence of the Civil Service Commission ("Commission")6 in its determination that the relevant employees are law enforcement officers. Under 5 U.S.C. § 8331(20), the term "law enforcement officer" is defined for all of Public Law 93-350's hiring and retirement provisions to include employees at the Bureau of Prisons:

5 U.S.C. § 8331(20).7 The remaining steps for establishing a maximum age rule for law enforcement officers are set out in 5 U.S.C. § 3307(d). Under that section, the agency employing the law enforcement officers must initiate a proposed maximum age rule. Finally, section 3307(d) provides that a maximum age rule must be concurred in by an agency designated by the President. Subsequent executive orders assigned this concurrence responsibility to the Commission8 and, following Reorganization Plan No. 2 of 1978,9 to its successor, OPM.10

B. Establishment of BOP's Maximum Age Policy

Following passage of Public Law 93-350, the Department of Justice ("Department") sought the concurrence of the Commission in its determination that all BOP employees working within correctional facilities are "law enforcement officers" within the meaning of 5 U.S.C. § 8331(20). In its letter to the Commission, the Department explained that BOP employees working within correctional facilities had almost invariably received increased pensions for hazardous duty under prior law, which had required the Commission to make a case by case determination of whether the hazards faced by an employee warranted an enhanced retirement annuity.11 The Department offered to provide more detailed information to the Commission.12 The Commission, however, apparently agreed that further documentation was unnecessary. On March 12, 1975, it concurred in the Department's determination,13 thereby bringing BOP's employees in correctional facilities within the scope of Public Law 93-350's retirement provisions as well as its provision for setting maximum age requirements.

Meanwhile, the Department had participated in meetings with the Commission regarding procedures and standards for setting maximum age entry requirements.14 On April 28, 1975, the Attorney General, Edward H. Levi, formally requested that the maximum age for appointment to law enforcement positions within its agency be set at the date immediately preceding an individual's 35th birthday.15 The Attorney General proposed that exceptions to this policy be carved out only for especially qualified individuals, skill shortages and in cases where tentative selectees reach their thirty-fifth birthday during clearance and processing requirements.16 On June 4, 1975, the Commission concurred in this proposal.17

C. Proceedings Below

In the fall of 1976, appellant Stewart telephoned the Federal Correctional Institution for Women in Alderson, West Virginia, to inquire about available jobs. After indicating that she was over 35 years of age,18 she was told that she was ineligible for any job within that institution. Subsequently, Stewart sent a letter to the Commission, which at that time had responsibility for administering the ADEA, 29 U.S.C. § 633a, inquiring as to the legality of BOP's policy. Jeanne Monk, ADEA Program Coordinator for the Commission, answered Stewart's letter, explaining that the statute authorizing maximum age entry rules for law enforcement officers is an exception to the ADEA and that, therefore, BOP's policy did not constitute arbitrary age discrimination as prohibited by the ADEA.19 On March 10, 1977, Stewart brought this suit in district court alleging that the Attorney General, the Director of the Bureau of Prisons, and the Chairman and members of the Civil Service Commission had adopted the maximum age policy in violation of the ADEA, the APA and the equal protection guarantee of the Fifth Amendment.20 Stewart sought to represent all individuals between the ages of 40 and 65 who had applied or would apply for employment in BOP correctional facilities. After the district court denied Stewart's motion for class certification, see Stewart v. Bell, No. 77-0398 (D.D.C. Nov. 7, 1977); J.A. 2, appellant Herbst moved to intervene in this action. Herbst had sought employment as a clerk-typist at the United States Penitentiary in Lewisburg, Pennsylvania. As with Stewart, Herbst had been told that she was ineligible for employment because she was over thirty-five years of age. The district court granted Herbst's motion to intervene.21 Stewart v. Bell, No. 77-0398 (D.D.C. Nov. 21, 1977).

On June 27, 1978, appellants moved for partial summary judgment on the issue of the legality of BOP's maximum age policy, and appellees moved for summary judgment as to the entire case.22 In an opinion filed on March 26, 1979, the district court denied both these motions. J.A. 315. The district court first rejected appellants' argument that BOP's policy violates the ADEA, concluding that the statute that authorizes maximum age rules for law enforcement officers, 5 U.S.C. § 3307(d), constitutes an exception to the ADEA. Proceeding to the contention that BOP's policy violates the substantive provisions of the APA, 5 U.S.C. § 706(2)(A), the district court concluded that the factual record was insufficient to grant summary judgment to appellants. The district court therefore remanded this case to OPM, which had succeeded the Commission as the agency with responsibility to concur in maximum age policies, for a review of the propriety of BOP's policy as applied to each job classification for employees in correctional facilities. Finally, the district court reviewed OPM's findings and concluded that the maximum age policy was neither arbitrary nor capricious. See Stewart v. Civiletti, No. 77-0398 (D.D.C. Dec. 14, 1979); J.A. 333. Although the district court's opinion did not address appellant's argument that the maximum age rule was established in violation of the APA's notice and comment rulemaking procedures, the court stated that this argument had been fully briefed and considered when it denied rehearing. See Stewart v. Civiletti, No. 77-0398 (D.D.C. Jan. 29, 1980); J.A. 340.

II. THE SCOPE OF AGENCY DISCRETION UNDER SECTION 3307(d)

As the district court noted, there is no dispute in this case over the need to reconcile 5 U.S.C. § 3307(d) with the provisions of the ADEA. While section 3307(d) specifically authorizes agencies to set age requirements for appointment to law enforcement positions, the ADEA requires that federal personnel actions "be made free from any discrimination based on age," except when the Equal Employment Opportunity Commission ("EEOC") establishes that age is a "bona fide occupational qualification necessary to the performance of the duties of [a] position." 29 U.S.C. § 633a(b).23 The parties offer radically different suggestions, however, on how these statutes may best be reconciled.

Appellants argue that we should read section 3307(d) as merely authorizing maximum entry ages, while the ADEA provides the standard for determining whether a maximum entry age is appropriate. Appellants principally rely on language in the legislative history of section 3307(d), indicating Congress' concern with the arduousness of law enforcement work. They reason that this concern is fully compatible with the ADEA's bona fide occupational qualification standard. Appellants' Brief 18-23. In addition, appellants note that section 3307(d) is a specific exception to 5 U.S.C. § 3307(a), a provision which proscribes the use of any appropriated funds to pay the salary of any federal employee who establishes a maximum age policy for admission to the competitive service.24 Thus, they conclude, section 3307(d) was designed to serve the special and limited purposes of removing the threat of personal liability from officials who establish maximum age policies, and lifting section 3307(a)'s per se rule against maximum age policies. Under this reading, section 3307(d) simply authorizes the use of an otherwise prohibited age discriminatory practice — maximum age entry rules.25 The legality of a maximum age entry policy would nonetheless be contingent on whether it meets the ADEA's bona fide occupational qualification standard.26

Appellees argue in rebuttal that the statutory scheme proposed by appellants ignores Congress' "specific finding that maximum entry ages are appropriate for law enforcement officers." Appellees' Brief 12. In addition, appellees note that section 3307(d) and the ADEA set out different procedures for establishing age based requirements. Whereas section 3307(d) specifically requires that the agency propose a maximum age rule, and that the President's designate (currently OPM) concur in the policy, the ADEA presently gives the EEOC sole authority to establish exemptions to the general rule against discrimination based on age. Thus, appellees argue, section 3307(d) takes maximum age rules for law enforcement officers outside the ambit of the ADEA.

When faced with apparently conflicting statutes, our first task is to examine their language to determine whether they may be reconciled. See United States v. Will, 449 U.S. 200, 221-22, 101 S.Ct. 471, 483-84, 66 L.Ed.2d 392 (1980); United States v. Borden Co., 308 U.S. 188, 198-99, 60 S.Ct. 182, 188-89, 84 L.Ed. 181 (1939). When one statute speaks in general terms while the other is specific, conflicting provisions may be reconciled by carving out an exception from the more general enactment for the more specific statute. See Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 228, 77 S.Ct. 787, 791, 1 L.Ed.2d 786 (1957); C. Sands, Statutes and Statutory Construction ¶ 23.16 (4th ed. 1972). But even when the literal terms of statutory provisions would allow the specific language to be controlled by the more general, we cannot ignore evidence that Congress intended to address a specific situation through special legislation. See, e.g., Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 228, 77 S.Ct. 787, 791, 1 L.Ed.2d 786 (1957); MacEvoy Co. v. United States, 322 U.S. 102, 107, 64 S.Ct. 890, 893, 88 L.Ed. 1163 (1944); Castaneda Gonzalez v. Immigration & Naturalization Service, 564 F.2d 417, 423 (D.C.Cir.1977). In this case, applying the ADEA to the establishment of maximum entry ages for law enforcement officers would require us to adopt a strained reading of section 3307(d) and to ignore Congress' clear intent to employ maximum entry ages as a means towards securing a "young and vigorous" work force of law enforcement officers. We therefore agree with the district court that section 3307(d) is an exception to the ADEA.

We must begin by admitting that the plain language of section 3307(d) is not clearly inconsistent with the ADEA. As appellants note, the authority granted agencies to establish maximum entry ages could be read as simply lifting the per se rule, embodied in section 3307(a), against maximum age policies for entry into the competitive service. Appellants' attempt to superimpose ADEA standards on agency discretion under section 3307(d), however, seems problematic when section 3307(d) is read in its entirety; for instead of simply lifting a general ban on agencies' setting age qualifications for law enforcement employment, section 3307(d) sets forth a specific procedure for agencies to follow in setting such qualifications. Under section 3307(d), and implementing executive orders, an entry age qualification must be proposed initially by the agency and concurred in by OPM. In contrast, the ADEA vests sole authority to establish exemptions from the general ban against age discrimination with the EEOC.27 These provisions do not, in themselves, set up an irreconcilable conflict, since all three agencies could be required to concur in a maximum age policy. But in the absence of any indication that Congress intended such a dual procedure, the result would, at the least, require an awkward reading of Congress' enactments. And, once the legislative history of section 3307(d) is examined, it is evident that Congress meant to do what the statute's terms suggest, namely, to provide for maximum age requirements for law enforcement officers on the theory that these jobs involve special concerns that require consideration of factors not ordinarily accounted for in the ADEA's independent scheme for evaluating age restrictions.

Congressional efforts to secure a "young and vigorous" law enforcement work force through retirement legislation date back to 1947.28 Under this early legislation, law enforcement officers who completed 20 years of hazardous duty could retire early at high pensions. The theory behind special retirement provisions for law enforcement officers was that higher pensions would encourage law enforcement officers to retire earlier. The House and Senate reports on the bill that became Public Law 93-350, however, found that this simple logic had failed to yield the desired result. Rather than producing a "young and vigorous" work force, enhanced pensions had boomeranged. Highly capable workers were retiring after 20 years of service, while many less capable employees were staying on until their 70th birthday, in order to acquire 20 years of covered employment. Furthermore, early retirement was a one way street. Employees could choose to retire early, but the agency had no authority to require them to do so.29

Public Law 93-350 was designed to remedy this situation. First, the law restructured retirement annuities so that law enforcement officers would have less of an incentive to remain in their jobs after 20 years of service.30 Second, Public Law 93-350 instituted mandatory retirement provisions, under which law enforcement officers would have to retire at age 55 or after 20 years of service, whichever came later. Agencies were, however, given discretion to keep employees on until their 60th birthdays if, in the agencies' judgment, such an action would further the public interest. See 5 U.S.C. § 8335(g).

Congress provided agencies with authority to set maximum entry ages to enhance the new statutory scheme. The Senate Report, for example, noted that a maximum entry age would serve to make early retirement "an attractive option." S.Rep.No.93-948, 93d Cong., 2d Sess. 4 (1974). By setting a maximum entry age, an agency could keep out those employees who would be unaffected by the statute's retirement incentives because they would simply not have served long enough to qualify for retirement. Maximum entry ages would also serve to "implement the feasibility of compulsory retirement." H.R.Rep.No.93-463, 93d Cong., 1st Sess. 3 (1973). In its letters to the relevant congressional committees, the Civil Service Commission elaborated on this aspect of a maximum entry age provision. It stated that "[it] is important ... to have a limit on the age of entry that is related to [mandatory retirement at age 55] so persons entering the occupations can be provided a full career." Id. at 9; S.Rep.No.93-948, 93d Cong., 2d Sess. 6 (1974).

This legislative history indicates Congress' unequivocal intention to provide agencies with authority to structure their hiring practices so as to implement Public Law 93-350's retirement scheme for law enforcement officers. Of course, as appellants point out, Congress did not require agencies to adopt maximum entry age rules. But Congress did indicate its clear intention to give agencies the flexibility to use maximum age entry rules in order to achieve the statute's overall objective of securing a "young and vigorous" law enforcement work force.31 BOP's maximum age policy must therefore be scrutinized in terms of its rational relationship to the legislative scheme underlying section 3307(d), rather than the independent legislative scheme set forth by the ADEA.

III. REASONABLENESS OF BOP'S POLICY

Even if section 3307(d) is read independently from the ADEA, appellants contend that BOP's maximum age policy should be struck down as not reasonably related to section 3307(d)'s statutory objective. In essence, appellants argue that regardless of whether section 3307(d) requires that age be a bona fide occupational criterion, it still mandates that agencies setting maximum age policies be guided by the anticipated ability of the class of rejected applicants to perform the relevant tasks 20 years later when they would reach mandatory retirement. Appellants' Brief 31-37. Appellants' contentions, however, do not account for Congress' express judgments that age 55 is an appropriate age for requiring law enforcement officers to retire and that 20 years' service is the appropriate criterion for full retirement benefits. Since BOP's choice of age 34 is responsive to both these congressional determinations, the propriety of the maximum age policy here essentially turns on whether BOP has properly designated the relevant employees as law enforcement officers.32

A. Determining Who is a Law Enforcement Officer

BOP originally based its proposal that all employees in correctional facilities be considered law enforcement officers on its experience under the law enforcement retirement laws in effect before the enactment of Public Law 93-350. Under the earlier law, there was no direct relationship between job titles and retirement provisions. Instead, law enforcement officers had to apply individually for early retirement with beneficial pensions. See Pub.L. No. 80-879, 62 Stat. 1221 (1948). With Public Law 93-350, however, the position itself determines which set of retirement and pension provisions an employee is subject to. BOP reasoned that since most employees in correctional facilities had received enhanced pensions under the earlier law, they should continue to do so under Public Law 93-350.

OPM's detailed review of positions in BOP correctional facilities, conducted on remand, upheld the validity of BOP's original determination. Following the district court's order, BOP provided OPM with additional information on the 766 job positions in correctional facilities for which the job descriptions themselves did not on their face demonstrate that the jobs involved frequent direct contact with inmates.33 OPM reviewed this information and concluded that it lacked a sufficient basis to determine whether 24 of the positions should be classified as "law enforcement officer" jobs within the meaning of 5 U.S.C. § 8331(20). OPM then sought additional information from BOP on those 24 before concluding that BOP's original determination was correct.

Following this review, OPM sent one of its reviewers to the United States Penitentiary at Lewisburg, Pennsylvania, and the Federal Prison Camp at Allenwood, Pennsylvania. As OPM explained in its letter to appellants' attorney, the reviewer concluded that all employees in correctional facilities "are either required to work in close daily contact with inmates or must continually pass through areas where inmates are housed, are working or are engaged in recreational activities." In addition, the reviewer noted that administrative employees, whose job titles do not suggest frequent direct contact with inmates, would nonetheless "encounter inmate details such as messengers, clerks, cleaning crews, and repair crews as well as inmates on official business, such as parole hearings, registering complaints, or merely seeking personal information."34 We agree with the district court that these findings provide a rational basis for BOP's determination that all employees in correctional facilities fall within the statutory definition of a law enforcement officer.35

B. Setting the Maximum Entry Age at 34

As the district court concluded, BOP's choice of 34 as the maximum age for entry into its law enforcement positions is supported by Public Law 93-350's statutory scheme. Both the provisions encouraging retirement and those requiring retirement look to whether an employee has completed 20 years of service. See 5 U.S.C. §§ 8335(g), 8336(c). Since these provisions were enacted in order to promote the "youth and vigor" of the law enforcement profession, their effectiveness could be undermined if original appointments to law enforcement positions were made to individuals who would not complete 20 years of employment by the time they reached the ages which trigger those sections. Indeed, a maximum entry age of 29 could be justified as necessary to implement the incentive program for early retirement at age 50. See 5 U.S.C. § 8336(c). Of course, an agency is under no requirement to set a maximum entry age, so that there is no congressional "mandate" to set the age at either 29 or 34. But since agencies received the authority to set such a maximum age in the very legislation that set up these retirement provisions, an age that furthers their effectiveness seems especially appropriate.

Appellants' argument that Congress has not indicated its preference for retirement by age 55 is not convincing. Appellants note that mandatory retirement is set at 55 or after 20 years of service, whichever comes later. See 5 U.S.C. § 8335(g). They therefore conclude that Congress contemplated that there would be a "third group" of employees who would not have completed 20 years of service by the time they reached age 55, see Appellants' Brief 4, and that no preferred retirement age has been set forth by Congress. Appellants are correct, of course, insofar as Congress has left the initial decision to set a maximum entry age to the individual agencies. But it is hard to see how Public Law 93-350 can be read as being neutral on the question of the desirability of early retirement. Rather than providing for a "third group" that would undermine the overall scheme of Public Law 93-350, it is more likely that Congress sought to preserve the original jurisdiction of agencies to decide whether to set a maximum age and to provide "grandfather" treatment for law enforcement officers hired before an agency set its maximum entry age.36

IV. APPLICABILITY OF NOTICE AND COMMENT RULEMAKING REQUIREMENTS

Appellants also challenge BOP's policy on the ground that it was not formulated in accordance with the notice and comment rulemaking requirements of section 4 of the Administrative Procedure Act, 5 U.S.C. § 553. Appellants recognize that section 4 expressly exempts "matter[s] relating to agency management or personnel," but argue that this exemption does not apply when a proposed rule affects persons outside an agency. Appellants' Brief 49. Since hiring policies have some impact on those outside an agency who wish to be hired, appellants argue that hiring qualifications do not fall within section 4's exemption.

Whatever the wisdom of allowing for public participation in the development of age qualifications, we cannot agree that such participation is required by section 4 of the APA.37 We begin our analysis, as always, with the language of the statute itself. See Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197, 96 S.Ct. 1375, 1383, 47 L.Ed.2d 668 (1976). This language speaks in broad terms, providing that:

5 U.S.C. § 553(a). Nothing in this statutory language suggests that a personnel matter, such as hiring standards,38 would be subject to notice and comment rulemaking. On the contrary, this language suggests that whenever the "named subjects are `clearly and directly' implicated," Humana of South Carolina, Inc. v. Califano, 590 F.2d 1070, 1082 (D.C.Cir.1978), the statutory exemption applies.39

Appellants argue that despite this statutory formulation we should read section 4's exemption as coextensive with the more narrowly framed exemption from publication requirements drawn in section 3 of the original APA.40 Appellants' Brief 51-52. They note that the Attorney General's manual published after the enactment of the APA suggests that the two exemptions are of like scope.41 Since the manual states that the exemption from publication requirements is limited to matters that are "solely the concern of the agency proper, and therefore [do] not affect members of the public to any extent," see U. S. Department of Justice, Attorney General's Manual on the Administrative Procedure Act 18 (1947), they conclude that only strictly internal matters, such as rules on leaves of absence and vacations, are exempt from notice and comment rulemaking.

To read the two exemptions as identical, however, we would have to ignore considerable differences between the language used in the original APA to draw exemptions to section 3's publication requirements and section 4's notice and comment rulemaking requirements. As Judge Leventhal observed in Vaughn v. Rosen, 523 F.2d 1136, 1151 (D.C.Cir.1975) (Leventhal, J., concurring), "the exemption from disclosure to the public [section 3] was not couched in [broad] terms." Instead, the language of section 3's exemption required that the material withheld from public view be "solely" related to "internal" management and personnel. Id. at 1150-51. See 5 U.S.C. § 552(b)(2).42 By way of contrast, as Judge Leventhal noted, "Congress exempted any `matter relating to agency management or personnel' from the rulemaking procedures of the APA." Vaughn v. Rosen, 523 F.2d at 1151 (Leventhal, J., concurring). Given these differences in statutory language, it is unlikely that Congress intended the two exemptions to be read as one and the same. Indeed a strict parallel reading of the management and personal exemptions to the two sections makes little sense in the light of their differing functions. While section 3 opens agency determinations to public view, section 4 requires that agency determinations be preceded by a notice and comment period. Thus section 4 creates a far greater administrative burden than section 3 and is not needed to remove government activity from a shroud of secrecy. These different functions are reflected throughout sections 3 and 4, which require that many matters that are not subject to notice and comment rulemaking nonetheless be made public. Compare, e.g., 5 U.S.C. § 552(a)(1)(C) (requiring publication of rules of procedure) and 5 U.S.C. § 552(a)(1)(D) (requiring publication of statements of general policy or interpretations of general applicability formulated and adopted by an agency) with 5 U.S.C. § 553(b)(A) (excepting from notice and comment procedures "interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice"). See S. Breyer & R. Stewart, Administrative Law and Regulatory Policy 479 n.19 (1979).43

Our conclusion that section 4's exemption does not mirror section 3's does not, of course, tell us whether all personnel-related matters are exempt from notice and comment rulemaking. Prior cases touching on the latter question have suggested that a rule may not be characterized as one of "management" or "personnel" if it has a substantial effect on persons outside the agency.44 Relying on a litmus test of substantial external effect, appellants contend that age requirements fall outside section 4's exemption because they "affect" those outside the agency who are precluded from job opportunities. We think that appellant's argument proves too much. The effect of BOP's policy on those outside the agency is akin to that of any hiring standard. Hiring standards, by definition, determine who will be eligible for government employment and who will not. Yet hiring standards have never been considered to fall outside section 4's exemption for personnel matters. Indeed, when the Civil Service Commission concurred in the maximum age rule, its longstanding practice was to review job qualifications through internal review procedures and, once formulated, make those standards public. The Commission's procedures formulating hiring criteria were set forth in the Federal Personnel Manual.45 Generally, job qualifications were based on studies by occupational specialists who determine those "characteristics which are necessary for successful job performance." Federal Personnel Manual Supp. 271-1 7. Proposed qualifications were reviewed both for their consistency with established job classifications and for their consistency with statutory directives. For example, the Commission would review physical requirements to ensure that they only stated the minimum physical abilities necessary to perform a job. See Federal Personnel Manual 339-7 (July, 1969). Similarly, the Commission would review educational requirements to determine whether they complied with 5 U.S.C. § 3308 which prohibits minimum educational requirements "except when [the Commission] determines that the duties of a scientific, technical, or professional position cannot be performed by an individual who does not have a prescribed minimum education." Pursuant to 5 U.S.C. § 3308, such educational requirements must be published in the Federal Register together with an explanation of the reasons for their establishment. Other standards were published "in the appropriate Commission issuance system, or [were] otherwise made a matter of record." Federal Personnel Manual Supp. 271-1 15. At no point, however, would the Commission formally solicit comments from the public on proposed qualifications.

The Commission's implied determination that it need not follow notice and comment rulemaking procedures in formulating hiring standards was certainly a reasonable interpretation of the plain language of the personnel and management exemption.46 Furthermore, it appears that Congress had acquiesced in this agency interpretation, since in prescribing special procedures for developing some job qualifications, such as minimum educational requirements, it did not require notice and comment rulemaking. See 5 U.S.C. § 3308. With regard to maximum entry ages Congress only required that an agency's recommendation be concurred in by the President's designate. See 5 U.S.C. § 3307(d). It did not suggest that these hiring standards be treated any differently from other hiring standards for purposes of notice and comment rulemaking.47

Finally, appellants suggested at oral argument that even if hiring standards, in general, fall within the personnel exemption to notice and comment rulemaking, we should make an exception when a hiring rule concerns national civil rights policy.48 We fail to see, however, how this argument can be squared with the explicit authority granted agencies to set maximum entry ages for law enforcement officers. By providing agencies with special authority to establish maximum entry ages, Congress sought to solve problems of agency management that had emerged under prior law.49 As we have observed, this special legislation served to remove maximum entry ages for law enforcement officers from the scope of the ADEA and represents Congress' judgment that such maximum entry ages are an appropriate tool for controlling the age composition of an agency's work force.

V. PROPRIETY OF REMAND

Appellants' final argument is that the district court erred by remanding this case to the OPM for a detailed review of the positions covered by the maximum age rule. Appellants contend that OPM's review simply provides a post-hoc rationalization of its policy and therefore should not be considered in determining the policy's validity.50 Appellants' Brief 56-60.

In remanding this case to OPM, the district court sought to have the organization with the greatest expertise conduct the detailed factual review of BOP's maximum age policy. In essence, the district court concluded that it could not determine the policy's validity without such a factual review and, at its discretion, sought OPM's expertise. See Lodge 1858, American Federation of Government Employees v. Webb, 580 F.2d 496, 509 (D.C.Cir.), cert. denied, 439 U.S. 927, 99 S.Ct. 311, 58 L.Ed.2d 319 (1978). Appellants simply misread the district court's opinion when they state that the district court first found the policy to be illegal, and then permitted the wrongdoers to justify it in retrospect. On the contrary, the district court had not found a problem with the way in which the policy was formulated, but instead found the record inadequate to judge its validity.

For the foregoing reasons,51 we affirm the district court's order granting summary judgment to appellees.

WRIGHT, Circuit Judge, dissenting:

The majority holds that issuance of the maximum hiring age policy did not require notice and comment rulemaking under Section 4 of the Administrative Procedure Act (APA).1 The court finds the policy exempt from the rulemaking requirements because it involves "a matter relating to agency management or personnel."2 On this ground alone I dissent.

In interpreting the personnel exemption the majority relies primarily on its view of "the language of the statute itself." Majority opinion (Maj. op.), 673 F.2d at 496; see also id. at 496-497. I do not find the statutory language to be so dispositive. Moreover, the majority's interpretation of the exemption is completely at odds with

Under these circumstances, I think the personnel exemption does not apply to the maximum hiring age policy, and therefore the policy should have been invalidated since it was issued without notice and comment.

I. INTERPRETING THE PERSONNEL EXEMPTION

A. Statutory Language

The majority starts by assuming that "personnel" matters necessarily include all hiring rules. See maj. op., 673 F.2d at 496 ("a personnel matter, such as hiring standards"). This assumption necessarily forecloses any further inquiry. I do not think it wise to proceed so casually.

To begin with, the statutory language is not free from ambiguity. Indeed, while enacting the APA Congress considered but chose not to use language that would have covered all hiring rules. One of the three major bills introduced in the 77th Congress that addressed reform of administrative procedure contained a complete exemption for "any matter concerning or relating to * * * [t]he election, appointment, promotion, transfer, dismissal, or discipline of an employee or officer of any agency[.]"3 Similarly, Section 5 of the APA dealing with adjudication contains an exemption for matters involving "the selection or tenure of an employee[.]"4 Yet when the exemption to Section 4 was added at a late stage in the evolution of the Act,5 the Senate Judiciary Committee did not adopt precise language exempting all hiring rules, but rather chose the more amorphous term "personnel." Accordingly, we must look beyond the language of the statute itself to decipher the scope of the exemption.

B. Legislative History

In the development of the APA, the subject of exemptions received only occasional attention. Nonetheless, every reference to the meaning of the personnel exemption in the legislative history of the Act conflicts with the majority's interpretation of the exemption. The majority can find absolutely nothing in the legislative history to support its position.

At the outset, two key provisions of the APA should be distinguished. The statutory provision at stake in this suit is Section 4, the rulemaking provision. Section 4 contains the exemption for matters relating to agency management or personnel. A comparable exemption was included in Section 3 of the APA, the public disclosure provision, when the Act originally passed. The original Section 3 contained an exemption for matters "relating solely to the internal management of an agency."6 Section 3 in its original form no longer exists; the Freedom of Information Act7 replaced it.

The legislative history suggests that the Section 4 exemption was congruent with the exemption in the original Section 3. For instance, the Senate report states that the exemption for management or personnel matters was supposed to operate "only so far as not inconsistent with other provisions of the bill relating to internal management or personnel."8 This language is crucial because it indicates that the exemption for "agency management or personnel" matters in Section 4 is equivalent to the original Section 3 exemption for matters "relating solely to the internal management of an agency."

This reading of the Section 4 exemption is thoroughly supported by the 1947 manual on the APA that the Attorney General prepared. The Supreme Court and this court have given deference to the interpretations in this manual "because of the role played by the Department of Justice in drafting the legislation[.]"9 The manual indicates that the Section 4 exemption is substantively the same as the original Section 3 exemption for matters relating solely to internal management. U.S. Department of Justice, Attorney General's Manual on the Administrative Procedure Act 27 (1947). Seen in this light, the exemption in Section 4 is quite narrow, for the equivalent Section 3 exception was to apply only "[i]f a matter is solely the concern of the agency proper, and therefore does not affect the members of the public to any extent * * *." Id. at 18 (emphasis added).10

The majority mentions the Attorney General's manual, but then rejects its proposed construction because of differences in the language of the Section 3 and Section 4 exemptions. Maj. op., 673 F.2d at 498. This hardly constitutes deference to the Attorney General's interpretation. Since the Justice Department was deeply involved in the drafting of the APA, the Attorney General was undoubtedly aware of the differences in the language of the exemptions when he provided his interpretation. Yet, 36 years after passage of the APA, the majority wishes to substitute its own reading of the Act for "`a contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion,'" even though such a construction deserves respect. Power Reactor Development Co. v. Internat'l Union of Elec., Radio & Machine Wkrs, 367 U.S. 396, 408, 81 S.Ct. 1529, 1535, 6 L.Ed.2d 924 (1961) (quoting Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796 (1933)).

Recent congressional action seems to confirm the thrust of the original APA. In Section 201(a) of the Civil Service Reform Act of 197811 Congress made clear that the newly-created Office of Personnel Management was subject to the requirements of notice and comment except when issuing "internal personnel rules or procedures applicable just to OPM employees."12 The Senate report emphasized that the provision was adopted "in response to concern expressed that the Office of Personnel Management might not be subject to the procedural safeguards of the Administrative Procedure Act that currently apply to administrative agencies."13 Thus the mere "concern" that OPM "might" not be subject to a broad notice and comment mandate provoked congressional action.

Moreover, the "concern" that presumably provoked congressional action was that an Office, as opposed to an agency, might be exempt from the informal rulemaking requirements.14 See Soucie v. David, 448 F.2d 1067, 1073 (D.C.Cir.1971) (while definition of "agency" under the APA is "not entirely clear," the Office of Science and Technology is an agency for purposes of the Act); 1 K. Davis, Administrative Law Treatise § 1:2 at 8 (1978). Congress thus resolved any doubt that, in performing its functions, the Office of Personnel Management must use notice and comment except when issuing strictly internal personnel rules. When those same functions were performed by the Civil Service Commission, the predecessor of OPM, the Commission must necessarily have been subject to the same strict notice and comment requirements since no one disputes that a Commission is an "agency" for purposes of the APA.

Thus, at least with respect to OPM, the notice and comment requirements of the APA apply with full force to all matters other than those involving strictly internal personnel rules. Congress has announced its views. And "while the views of subsequent Congresses cannot override the unmistakable intent of the enacting one, * * * such views are entitled to significant weight, * * * and particularly so when the precise intent of the enacting Congress is obscure." Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 596, 100 S.Ct. 800, 814, 63 L.Ed.2d 36 (1980) (citations omitted).

C. Case Law

Few cases have dealt with the personnel exemption of Section 4, and only two have attempted to define its scope. Both of the relevant cases are from this circuit: one in the District Court and one in the Court of Appeals.

In Seaboard World Airlines v. Gronouski, 230 F.Supp. 44, 46 (D.D.C.1964), the District Court addressed the question whether a policy aimed at employees necessarily fell under the personnel exemption. The Post Office had attempted to argue that a directive to its personnel concerning mail carried abroad involved "a matter relating to agency management or personnel" under the Section 4 exemption. The District Court concluded that, while the policy might be directed to personnel, it "substantially affects outside parties and is therefore NOT subject to the [personnel] exception." Id. at 46 (emphasis in original).

The test used in Seaboard for determining the reach of the Section 4 exemption — whether a policy substantially affects outside parties — was explicitly adopted by this circuit in Joseph v. U.S. Civil Service Comm'n, 554 F.2d 1140 (D.C.Cir.1977). Joseph involved a Civil Service Commission regulation exempting local elections from some provisions of the Hatch Act, thereby allowing federal employees to participate in District of Columbia political campaigns. In holding that such a regulation did not fall within the "agency management or personnel" exemption of Section 4, the court stated that "although the Commission's regulation is only directed at government personnel it does not fall within [the exemption] because outside individuals are substantially affected." Id. at 1153 n.23 (citing Seaboard World Airlines v. Gronouski, supra, 230 F.Supp. at 46) (emphasis added).15

D. Application of Law to Fact

Based on the legislative history of the Section 4 exemption and on the case law interpreting it, the maximum age policy clearly does not fall within the scope of the provision. By its very nature, the policy has a direct impact on those members of the public who might apply for law enforcement positions. Indeed, the policy automatically disqualifies all members of the public over 35 from government employment in this job area. The effect on the public is thus substantial.

Moreover, the maximum hiring age policy implicates even broader public interests. The problem of arbitrary age discrimination has provoked legislative responses at both federal and state levels. See, e.g., Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1976); H.R.Rep.No. 805, 90th Cong., 1st Sess. 2 (1967) (24 states had passed age discrimination legislation similar to the federal act). The purpose of such laws is "to promote employment of older persons based on their ability rather than age[.]" 29 U.S.C. § 621(b). In line with the development of such legislation, age discrimination has become a subject of national concern. See, e.g., S.Rep.No. 493, 95th Cong., 1st Sess. 2-3 (1977) ("a new awareness has developed concerning discrimination against the elderly"). Under these particular circumstances, a maximum hiring age policy raises concerns well beyond those of the agency proper.

That a maximum hiring age policy raises unusually significant public concerns is demonstrated by recent congressional action pertaining to the precise policy at stake in this suit. In 1981 the House of Representatives adopted an amendment to the Justice Department authorization bill16 providing that the Bureau of Prisons could not enforce any age restriction on hiring set below age 45 (as opposed to the existing age limit, 35 years). See 127 Cong.Rec. H2801-H2803 (1981).17 Congressmen were outraged by the existing age-35 figure. The sponsor of the amendment declared that "[t]he prison system's current policy is one of unabashed `ageism.'" Id. at H2801 (statement of Mr. Gilman). Moreover, those favoring the amendment pointed out that the existing regulation undermines veterans preference hiring policies, since those retiring from the armed services after 20 years service would be over 35 years old and therefore ineligible for positions in the Bureau of Prisons. Id. at H2801-H2803 (statements of Mr. Solomon and Mr. Sawyer). Even the lone defender of the existing age limit implored his colleagues to "have hearings on it and let us determine what the correct age is, if any * * *." Id. at H2802 (statement of Mr. Kastenmeier) (emphasis added).

In the narrow set of cases where a proposed rule substantially affects parties outside an agency and implicates broad public concerns, the personnel exemption from rulemaking requirements surely does not apply.18 Additional support for this conclusion can be found by turning to expert commentary and considerations of public policy.

E. Expert Commentary

Almost without exception, academic commentators have adopted views that conflict with the majority's interpretation of the Section 4 exemption. For instance, one of the first major articles discussing APA exemptions found the management or personnel exemption to be limited in scope. "Thus, the rule making requirements of the Act do not apply to rules relating to the internal or `housekeeping' operations of the Federal Government and its agencies * *." Ginnane, "Rule Making," "Adjudication" and Exemptions under the Administrative Procedure Act, 95 U.Pa.L.Rev. 621, 634 (1947) (emphasis added). Similarly, a major treatise on administrative law published in 1952 noted that the "agency management or personnel" exemption was "considered identical with the second exemption of § 3, despite its different wording." R. Parker, Administrative Law 179 n.40 (1952).

Professor Arthur Bonfield has undertaken the most detailed analysis of the Section 4 exemption. Bonfield is "a recognized expert in the field of APA exemptions,"19 who has written two major articles on APA exemptions. See Public Participation in Federal Rulemaking Relating to Public Property, Loans, Grants, Benefits, or Contracts, 118 U.Pa.L.Rev. 540 (1970); Military and Foreign Affairs Function Rule-Making Under the APA, 71 Mich.L.Rev. 221 (1972).

In his Michigan Law Review article Professor Bonfield devotes six pages to a discussion of the scope of the "agency management or personnel" exemption in Section 4. Id. at 316-321. Discussing hiring rules for the armed forces, Bonfield adopts an analysis that parallels the discussion provided in this dissent:

Id. at 320-321 (emphasis in original).

F. Considerations of Public Policy

A prime motivation behind the APA reforms was the conclusion that rulemaking processes "should be adapted to giving adequate opportunity to all persons affected to present their views, the facts within their knowledge, and the dangers and benefits of alternative courses." Attorney General's Committee on Administrative Procedure, Administrative Procedure in Government Agencies 102 (1941). Public participation was deemed essential "to afford adequate safeguards to private interests," id. at 103, and to inform agencies of "the information, facts, and probabilities which are necessary to fair and intelligent action," id. at 102. Only "in connection with regulations of minor, noncontroversial character" was the delay and expense of advance notice and comment deemed unwarranted. Id. at 108.

The notice and comment rulemaking procedure has been deemed "one of the greatest inventions of modern government." K. Davis, Administrative Law Treatise § 6.15 at 283 (1970 Supp.). Because the "salutary effect of the Act's public comment procedures cannot be gainsaid, so only reluctantly should courts recognize exceptions therefrom." Humana of South Carolina, Inc. v. Califano, 590 F.2d 1070, 1082 (D.C.Cir.1978) (discussing "benefits" exception in APA § 4(2)).

Because of these types of considerations, the Section 4 exemptions were supposed to be narrowly interpreted.20 At the same time, three rationales presumably supported the existence of a management or personnel exemption. First, some matters may involve areas of agency expertise so directly that the value of outside input is marginal. Second, some policies may be the product of internal agency processes that already allow affected individuals a voice in the process without formal notice and comment rulemaking. Third, some matters are undoubtedly so related to "housekeeping" functions that the burden of notice and comment procedures is simply not warranted. None of these considerations has much logical force in the context of a maximum hiring age policy.

First, judgments concerning the use of age as a hiring criterion do not appear to fall within the range of matters about which agencies are likely to have sole expertise. Individuals and groups outside an agency can undoubtedly present useful ideas and information about the relationship between age and ability to perform a job. Indeed, some groups apparently devote extensive efforts to studying this matter; their views could be significant. At the same time, there is little likelihood that normal decision making processes within the agency have taken such views fully into account. In contrast to those personnel policies with which existing employees are concerned, employees already in law enforcement positions were not noticeably affected by the maximum hiring age policy. On the other hand, only non-employees were detrimentally affected. These people can have a say only if procedures for public participation are employed. Finally, the burden of notice and comment procedures is warranted where a policy raises broad public concerns and has ramifications well beyond the confines of the agency involved.

In short, important considerations of policy reinforce the conclusion that public participation is appropriate before adoption of a maximum hiring age policy. The justifications for an exemption for management or personnel matters do not apply in this case.

II. CONCLUSION

In concluding that the maximum hiring age policy was not subject to the procedural requirements of notice and comment, the majority has adopted a most unfortunate approach to the Section 4 personnel exemption. In the course of its opinion the majority rejects uncontroverted legislative history; it discards this circuit's prior interpretation of the exemption; it ignores the consensus of academic commentary; and it closes off public participation on an issue of vital importance.

For all of these reasons, I respectfully dissent.