Opinion for the Court filed by Circuit Judge WALD.
Dissenting opinion filed by Circuit Judge WRIGHT.
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.
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.
5 U.S.C. § 8331(20).
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.
Meanwhile, the Department had participated in meetings with the Commission regarding procedures and standards for setting maximum age entry requirements.
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,
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.
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).
Appellants argue that we should read section 3307(d) as merely authorizing
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
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.
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.
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.
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.
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.
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."
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
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.
5 U.S.C. § 553(a). Nothing in this statutory language suggests that a personnel matter, such as hiring standards,
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.
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).
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.
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.
Finally, appellants suggested at oral argument that even if hiring standards, in
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.
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,
WRIGHT, Circuit Judge, dissenting:
The majority holds that issuance of the maximum hiring age policy did not require
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[.]"
B. Legislative History
In the development of the APA, the subject of exemptions received only occasional attention. Nonetheless, every reference to
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."
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."
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[.]"
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)).
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.
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
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 bill
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.
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,"
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.
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 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.
This provision did not take effect until January 1, 1977.
Public Law 93-350 was expected to improve incentives for early retirement in two ways. First, by providing an extra half a percentage point multiple for the first 20 years of service, the bill made it "more economically practicable" for law enforcement officers to retire early. H.R.Rep. 4; see S.Rep. at 3-4. Second, by lowering the rate of computation for years of service in excess of 20 years, Public Law 93-350 was expected to "[make] it less worthwhile" to work beyond 20 years. S.Rep. 4. There is some question, however, as to whether the retirement scheme has substantially affected the average age of law enforcement officers' retirement. See Comptroller General of the United States, Special Retirement Policy for Federal Law Enforcement and Firefighter Personnel Needs Reevaluation 7-9 (1977), reprinted in Joint Appendix ("J.A.") 260-62.
Section 3307(a) was enacted as a rider to the Independent Offices Appropriation Act, 1957, Pub.L. No. 84-623, 70 Stat. 339 (1956). Subsequent Congresses carved out specific exceptions to this prohibition. Thus, pursuant to Pub.L. No. 91-73, 83 Stat. 116 (1969) (currently codified at 5 U.S.C. § 3307(c)), the Secretary of Interior is authorized to fix age requirements for appointment to the United States Park Police. An additional exception was created in 1972 for an original appointment to a position as an air traffic controller. See Pub.L. No. 92-297, 86 Stat. 141 (1972) (codified at 5 U.S.C. § 3307(b)).
Indeed, Congress has recently addressed the wisdom of BOP's policy of using as low an age as 35 to determine who may be employed as a law enforcement officer. During its last session, the House adopted an amendment to the Justice Department Appropriation Authorization Act, H.R. 3462, 97th Cong., 1st Sess. (1981), providing that BOP could not enforce any age restriction on hiring set below age 45. See 127 Cong.Rec. H2801-03 (1981). H.R. 3462, however, was not enacted into law, and the continuing resolutions for fiscal year 1982 have not contained any special provisions regarding BOP's hiring policy. See Pub.L. No. 97-51, 95 Stat. 958 (1981); Pub.L. No. 97-92, 95 Stat. 1183 (1981). In any event, whatever the desirability of maximum entry ages as a policy matter, we must restrict our inquiry to interpreting the statutes in force at the time BOP adopted its maximum age rule.
This reading is reinforced by 5 U.S.C. § 8335(g), which provides that the head of an agency may keep an employee up until age 60 if, in his judgment, "the public interest so requires." This provision was designed to take the discretion whether to retire at a later age away from the employee and to give that discretion to the agency. See H.R.Rep. at 6-7.
Section 4's benefits exemption is one of the proprietary function exemptions to notice and comment rulemaking. These exemptions have been the subject of substantial criticism in recent years. See, e.g., Administrative Conference Recommendation No. 16, 1 Administrative Conference of the United States 45 (1970); Bonfield, Public Participation in Federal Rulemaking Relating to Public Property, Loans, Grants, Benefits, or Contracts, 118 U.Pa.L.Rev. 540 (1970) ("Public Participation"). In response to a recommendation of the Administrative Conference, many agencies have voluntarily adopted notice and comment rulemaking procedures. See, e.g., 29 C.F.R. § 2.7 (1981) (Department of Labor). The Administrative Conference has also proposed the abolition of the exemption for military and foreign affairs. See Administrative Conference Recommendation No. 73-5, 3 Administrative Conference of the United States 28 (1974). The Administrative Conference, however, has not proposed that agencies engage in notice and comment rulemaking with regard to personnel and management matters. According to Professor Bonfield, the agency management exemption was not considered in a study he conducted for the Administrative Conference in part because it involves "more difficult" problems than the proprietary exemptions and "[p]ractically speaking ... seems to be more impervious to change." Bonfield, Public Participation, at 545-46.
The dissent's construction of section 3's personnel and management exemption relies almost exclusively on this line in the Attorney General's manual. Professor Bonfield's article, for example, places considerable emphasis on the Attorney General's manual to reach the conclusion that sections 3 and 4 are "supposedly" the same. See Bonfield, Military and Foreign Affairs Function Rule-Making Under the APA, 71 Mich.L.Rev. 221, 317-321 (1972). According to Professor Bonfield, the Attorney General's conclusion is probably based on a line in the Senate Report stating that the "`exception of matters of management or personnel would operate only so far as not inconsistent with other provisions of the [APA] relating to internal personnel and management.'" Id. at 318 (quoting S.Rep.No.79-752, 79th Cong., 1st Sess. 12 (1945), reprinted in Senate Committee on the Judiciary, Administrative Procedure Act, S.Doc. No. 248, 79th Cong., 2d Sess. 199 (1946)). This language, however, only mandates that matters that are exempted from publication also be exempted from rulemaking. It does not require that the two exemptions be considered to be of like scope. Indeed, the Senate Report proceeds to state that the limiting principle on section 4's exemptions comes from the section's own terms — namely that the "exceptions apply only `to the extent' that the excepted subjects are directly involved." Id.
5 U.S.C. § 1105 provides that the director of OPM is "subject to subsections (b), (c), and (d) of section 553 ... notwithstanding subsection (a) of such section 553." This language first appeared in the House version of the bill that became the Civil Service Reform Act of 1978, as it was reported out of committee. See H.R. 11280, 95th Cong., 2d Sess. (1978), reprinted in 1 House of Representatives, Committee on Post Office and Civil Service, Legislative History of the Civil Service Reform Act of 1978 ("Legislative History") 514 (1979). The Senate version of the bill indicates that the prime concern in overriding subsection (a) was to prevent OPM from invoking the personnel and management exemption. See S. 2640, 95th Cong., 2d Sess. (1978), reprinted in 2 Legislative History 738 ("In the issuance of rules and regulations, the Director of the Office of Personnel Management shall be subject to subsections (b), (c), and (d) of section 553 of this title (notwithstanding the exemption in section 553(a)(2) of this title relating to agency management or personnel)") (emphasis added). Since the Civil Service Reform Act of 1978 was enacted after the Commission approved the maximum age policy, we need not decide whether its procedural requirements would apply to OPM's concurrence responsibility under 5 U.S.C. § 3307(d).
Thus the majority's discussion of the formulation of typical job requirements is inapposite. Moreover, its reliance on the Federal Personnel Manual, maj. op., 673 F.2d at 499, seems misplaced. As the majority itself recognizes, id. at n.45, the procedures in that Manual remain "largely unchanged" despite the unmistakable mandate of the Civil Service Reform Act of 1978 as to the use of notice and comment rulemaking. 5 U.S.C. § 1105 (Supp. IV 1980). Thus the Manual serves as a poor guide to the APA's requirements. Also, the majority ignores the fact that federal agencies have undertaken notice and comment rulemaking with respect to a number of matters that clearly fall within the majority's definition of "personnel." As merely one example, in 1977 the Civil Service Commission issued a proposed rule in order to extend the federal employees' health benefits program "open season" from two to four weeks in length. 42 Fed.Reg. 41866 (1977). See also 41 Fed.Reg. 21359 (1976) (Commission proposed rule that amended open season provisions). After passage of the Civil Service Reform Act of 1978, OPM continues to be subject to notice and comment requirements with respect to open season provisions. See Nat'l Fed'n of Federal Employees v. Devine, 671 F.2d 607 (D.C.Cir.1982).