210 Ct. Cl. 266 | Ct. Cl. | 1976
Lead Opinion
delivered the opinion of the court:
In these consolidated civilian pay cases, plaintiffs, married female employees of the Panama Canal Government or a Canal Zone office of a United States Government agency, claim they have been deprived by regulation of what is known as an overseas tropical differential allowance. Because the regulations correctly deny plaintiffs’ entitlement to the tropical differential and because we find no abuse of discretion, we hold for defendant.
Plaintiffs’ attack on the denial of the tropical differential •requires scrutiny of the statutory underpinnings of the Canal Zone Government and its wage and employment practices.
In 1912, Congress established a government for the Canal Zone and authorized the President to appoint a governor. Act of Aug. 24, 1912, 37 Stat. 560, 561. Congress also empowered the President to fix compensation of Canal Zone Government employees in an amount not to exceed by more than 25 percent that paid to persons employed by the U.S. Government in the continental United States for the same or similar services. See 2 Canal Zone Code (2 C.Z.C.) § 81(c) (1934).
All U.S. citizens employed in the Canal Zone originally received a tropical differential of 25 percent of their base salary. This practice began in 1914 and continued until 1964. Meanwhile, in 1955, the U.S. and Panama entered into a treaty which granted qualified Panamanian citizens the right
Congress had also empowered the President to delegate his Canal Zone administrative powers. This legislation (codified as 2 C.Z.C. § 155 (1962)) provides:
The President may delegate any authority vested in him by this subchapter [governing Canal Zone administration], and may provide for the redelegation of any such authority. [2 C.Z.C. § 155 (b) (1962) ].
Initially, the President delegated his Canal Zone authority to the Secretary of War. Exec. Order No. 9746, 3 C.F.R. 148 (Supp. 1946). Later, President Eisenhower redelegated it to the Secretary of the Army. Exec. Order No. 10595,3 C.F.E.. 58 (Supp. 1955). Finally, in 1958, the President assigned to the Secretary of the Army the Presidential duties to direct the wage and employment practices of the Canal Zone Government (2 C.Z.C. § 142 (1962))
Pursuant to the statutes and Executive Orders, the Secretary of the Army issued various regulations. See 5 C.F.R. § 1201 (1964), now 35 C.F.R. § 253 (1975). One of the provisions reduced the tropical differential (previously set at 25 percent for all employees) to 15 percent for some employees and eliminated it altogether for others. 5 C.F.R. § 1204.12 (Supp. 1966).
This action was immediately questioned. Hendricks v. United States, Ct. Cl. No. 202-68 (filed July 15, 1968). Claimants attacked the 1964 regulations and sought recovery of lost differential pay originating with its denial in October 1966. The parties settled the prior action by agreement on May 7, 1971.
Perhaps spurred in part by that case, in 1971 the Secretary of the Army altered the Canal Zone regulations covering the tropical differential. The 1971 amendments provided in part:
§ 253.135. Tropical differential.
* ❖ * * *
(b) The tropical differential shall be paid to employees who are U.S. citizens except as provided in the following subparagraphs:
(1) When a U.S. citizen employee is married to another U.S. citizen employee, the differential may be paid to one spouse only.
(2) When a U.S. citizen employee is married .to a person not employed by a department such employee is*272 eligible to receive the differential only if such, employee is the member of the family whose job may reasonably be deemed to be the job which determines the location of the family in the area. The spouse of a person serving-in the U.S. military forces in the area shall not be deemed to be a person whose job determines such location.
(3) A child or stepchild of a resident of the Canal Zone or the Republic of Panama who is under 21 years-of age and unmarried is not eligible.
[35 Fed. Reg. 19750-51 (1970) (effective Jan. 10,1971)]..
On April 28,1974, further amendments to the tropical differential regulations became effective. 35 C.F.R. § 253., 135 (b) (2) was altered to provide:
The U.S. citizen employee whose spouse is a member-of a U.S. military service stationed in the area may be-paid the differential only to the extent that the amount of the differential otherwise payable exceeds the amount of the total housing allowance (BAQ plus the housing-portion of the station allowance) established for Panama City, Republic of Panama for a military member having the same rank and family size as the employee’s military spouse. The U.S. citizen employee-whose spouse, by reason of U.S. Government employment in the Republic of Panama, is eligible under the-Department of State Standardized Regulations (Government Civilians, Foreign Areas) (DSSR) for a living quarters allowance (-LQA) may be paid the differential only to the extent the amount of the differential otherwise payable exceeds the amount of LQA established for Panama City, Republic of Panama by-sections 920 and 932.22 of the DSSR for one in the same-quarters group and with the same family size as -the employee’s spouse. [39 Fed. Reg. 13650-51 (1974)].
Plaintiffs in the instant action contend that they have been, illegally denied tropical differential allowances by the Secretary of the Army’s promulgation of these amendments-Plaintiffs say that the altered tropical differential regulations' are void. They believe they should receive lost differential pay based on prior.practice of granting the full 25-percent differential to all U.S. citizens employed by the-Canal. Zone Government.
We determine that the 1971 and 1974 amendments to the tropical differential regulations are valid. The Secretary of
Plaintiffs mount a six-tiered attack on the 1971 and 1974 amendments to the tropical differential regulations, arguing that they are at odds with various statutes.
None of these statutes are of help to plaintiffs.
(1) 2 O.Z.O. § Ufi {Tropical Differential):
Plaintiffs’ main attack on the Secretary of the Army’s amendments denying them tropical differential allowance is based on 2 C.Z.C. §146 (1962). This statute provides in part:
§ 146. Additional allowance and differential.
In addition to established basic compensation, there shall be paid to each employee who is a citizen of the*274 United States such amounts as the head of the department concerned determines to be payable, as follows:
# ‡ H: #
(2) an overseas (tropical) differential not in excess of an amount equal to 25 percent of the aggregate amount of the rate of basic compensation so established and the amount of the allowance provided in accordance with paragraph (1) of this section. [2 C.Z.C. § 146(2) (1962)].
Plaintiffs contend that the altered regulations are void because they conflict with section 146. According to plaintiffs, section 146 mandates payment of the tropical differential and the Secretary of the Army’s refusal to pay is illegal. For several reasons there is no conflict between the statute and the regulations. The action of the Secretary denying the differential to plaintiffs, is correct.
Plaintiffs’ section 146 argument is based upon an erroneous interpretation of the statute. Plaintiffs emphasize the portion of the codification which provides that the differential “shall be paid.” From this plaintiffs attempt to have the court find the payment mandatory. However, plaintiffs conveniently ignore the remainder of section 146 which calls for payment of the tropical differential in “such amounts as the head of the department concerned deterrm/nes to be payable.” Given this, section 146 is not mandatory as plaintiffs would urge, but is discretionary. In short, the Secretary of the Army’s tropical differential amendments represent an exercise of discretion in excluding plaintiffs.
Moreover, under 2 C.Z.C. § 142(b) (1) (see note 2, supra) the Secretary of the Army (by delegation of power from the President in Exec. Order No. 11171, supra) has the authority to “exclude any employee or position from this subchapter [governing Canal Zone employment practices].’’ Taken at face value, this statute grants ample authority to the Secretary to exclude plaintiffs from the tropical differential payments. Plaintiffs make much of a statement by Congressman Hemphill purporting to clarify section 142(b) (1). This discussion represents an attempt to restrict the President’s power to exclude positions to “the Governor of the Canal
A reading of all parts of the su'bchapter and an understanding of the purpose of the [tropical] differential lead us to conclude that the Secretary could make reasonable exclusions of United States citizens from the benefits of the differential. [Id. at 119].
We agree with the court’s reasoning in Leber. The Secretary of the Army under 2 C.Z.C. § 142(b) (1) has authority to exclude plaintiffs from the benefits of the tropical differential allowance.
Finally, although plaintiffs fail expressly to argue otherwise, it is clear that the amended regulations do not constitute an abuse of discretion. We could not find the regulations valid if the Secretary had arbitrarily excluded certain individuals. However, the amended regulations have a rational basis or purpose. They constitute a valid exercise of discretion. As stated by the court in Port Authority v. United States, 193 Ct. Cl. 108, 432 F. 2d 455 (1970) (relying on Udall v. Tallman, 380 U.S. 1, 16 (1965)) :
Where administrative control has been authorized by Congress, the judicial function is exhausted when there is found to be a rational basis for the conclusions ap*276 proved by the administrative body. Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282, 286-87 * * * (1934). [Port Authority, supra, 193 Ct. Cl. at 120, 432 F. 2d at 461].
The amendments which plaintiffs attack seek to provide a tropical differential “incentive” to encourage TJ.S. citizens to work in the Canal Zone. The regulations now exclude those TJ.S. citizens who would not reasonably demand additional' inducement to pursue employment in the Canal Zone. As found by the court in Leber, supra:
The purpose of the differential is admitted to be an inducement to get American citizens to work overseas in so-called hardship areas and to alleviate some of the financial burdens of taking such employment. * * * \Id. at 120 (emphasis added)].
The 1971 regulations emphasize this purpose in the provisions allowing for periodic review and adjustment:
[T]o the extent necessary to furnish a suitable incentive-in recruitment of qualified personnel and to provide pay benefits substantially equal to those accorded TJ.S. citizens employed by the Federal Government in comparable foreign areas. [35 C.F.R. § 253.135(a) (1975)].
So long as the Secretary’s regulations are rationally calculated to exclude only those employees for whom the incentivé-is unnecessary, we cannot say that they constitute an abuse of discretion. A careful scrutiny of the exclusions demonstrates that the regulations are properly drawn.
The 1971 amendments exclude four categories of employees. First, those whose spouse is also a Government employee and who is the family member who has elected to-receive the differential. Second, those employees whose presence in the Canal Zone is attributable to the job of his or her spouse. Third, an employee whose spouse serves in the military and receives rent-free quarters or quarters allowance.. Fourth, an employee who is under 21, unmarried and the child or stepchild of a resident of the Canal Zone or the-Eepublic of Panama. Such a person would usually not maintain a separate household. Significantly, each of these categories provides an example of a situation where the excluded
The 1974 alterations also emphasize the reasonableness of the Secretary’s decision. The Secretary deleted the second category of exclusions because it proved too difficult to administer and relaxed the third category to allow a partial differential where it exceeded the quarters allowance of a spouse because it might be necessary to lure some families into the Canal Zone.
Eather than constituting arbitrary exclusions, the regulations quite rationally deny the allowance for U.S. citizen-employees in cases where no incentive is required.
The amended regulations do not conflict with 2 C.Z.C. § 146. 'Section 146 grants discretion to the Secretary of the Army to decide whether or not payment of the 'allowance is necessary. Section 142(b) (1) further permits the Secretary to exclude employees from the Canal Zone Code employment provisions. Such discretion has not been abused in the amendments to 35 C.F.R. § 235.135(b). Therefore, plaintiffs cannot prevail on their argument that the differential is required by 2 C.Z.C. § 146.
(2) # C.Z.C. $145 (Uniform Canal Zone Compensation Rates):
Plaintiffs further argue that the amended regulations are invalid because they create an impermissible disparity in compensation rates. 2 C.Z.C. §§ 144-45 (1962) compel uniform application of basic compensation rates.
§ 144. Compensation.
(a) The head of each department, in accordance with this subchapter, shall establish, and from time to time may revise, the rates of basic compensation for positions and employees under his jurisdiction. [2 C.Z.C. § 144(a) (1962)].
§ 145. Uniform application of standards and rates.
The established employment standards and rates of basic compensation established pursuant to sections 143*278 and 144 of this title shall be applied uniformly, irrespective of whether the employee or individual concerned is. a citizen of the United States or a citizen of the Republic of Panama. [2 C.Z.C. §145 (1962)].
Plaintiffs contend that the amendments create a disparity of pay rates in violation of section 145 and are thereby invalid. Again, plaintiffs misconstrue the Canal Zone Code. There is no conflict between the amended regulations and the statutes.
Statutes, regulations, and treaties have consistently differentiated basic compensation (which must be uniform per section 145) from the differential allowance. Compensation is payment for the rendering of services. The allowance is merely to encourage the presence of U.S. citizen-employees in the Canal Zone. To this end, section 146, supra, contains the following phraseology: “In addition to established basic compensation, there shall be paid * * * an overseas (tropical) differential * * *” 2 C.Z.C. § 146(2) (1962). Further, 2 C.Z.C.. § 148 (1962) recognizes the same distinction in providing for the method of computation of benefits based on compensation (such as insurance, disability and overtime) :
[For purposes of computing benefits based on salary} [t]he basic compensation of each employee * * * shall include the rate of basic compensation established for his. position, and the amou/nt of the allowance and differential determined, in the manner respectively provided by sections 144 and 146 [the tropical differential] of this title. [2 C.Z.C. §148(6) (1962)].
To the same effect, see the provisions of the 1955 U.S.Panama treaty discussed above. 72 Stat. 405, et seq.
The tropical differential allowance is an item separate and apart from basic compensation. Accordingly, there is no mandatory requirement for uniform application of the allowance despite the fact that basic compensation must be equal as required in section 145. In short, the amended regulations are not void measured against sections 144 — 45 of the Canal Zone Code.
The third Canal Zone Code section relied upon by plaintiffs is 2 C.Z.C. § 101 (1962). Section 101 provides:
§ 101. Appointment and compensation of Government employees.
(a) Except as otherwise provided by law, and subject to the supervision provided by section 31 of this title, the 'Governor shall:
“(1) appoint all officers and employees of the Canal Zone Government; and
“(2) prescribe the compensation of officers and employees of the Canal Zone Government, and establish their conditions of employment. * * *”
(b) Compensation prescribed by the Governor under this section may not exceed, in any case, by more than 25 percent, the compensation paid for the same or similar services to persons employed by the Government in the continental United States. * * * [2 C.Z.C. § 101 (1962)].
Plaintiffs would say the Governor under section 101 must prescribe the compensation, i.e., not the 'Secretary of the-Army. This section, like the ones already discussed, is of no-help to plaintiffs.
Section 101 speaks in terms of compensation. Compensation is different from the tropical differential allowance.. See -Part (2), supra. If, as plaintiffs allege, section 101 is-mandatory, it does not conflict with the tropical differential statute or regulations which allow for payment of the differential within the discretion of the Secretary of the Army.. See Part (1), supra.
Moreover, section 101 clearly states that it applies “except-as otherwise provided by law A If there is a conflict between section 101 and section 146 (under which the allowance has-been excluded), the latter statute would prevail. Section 146-is discretionary. Again, plaintiffs may not win based on use-, of section 101.
In addition, section 101 states that it applies “subject to-the supervision provided by section 31.” Section 31 requires;
§ 31. Carnal Zone Government; administration and fwne-tions generally.
The Canal Zone Government, an independent agency of the United States, shall:
(1) be administered, under the supervision of the President or such officer of the United States as may be designated by him, by a Governor of the Canal Zone. * * * [2 C.Z.C. §31 (1962)].
Even if the Governor is required to pay the full differential to all employees, the Secretary of the Army’s authority transcends the power of the Governor. If there is a conflict between the powers of the Governor and those of the Secretary ■of the Army, those of the latter are paramount and the .amended regulations under attack are valid, notwithstanding section 101,
Finally, the major premise of plaintiffs’ section 101 argument (that the Governor must pay the full differential to all ■employees) is also erroneous. Section 101, like section 146, is not cast in mandatory terms. The authority of the Governor to set pay rates is discretionary within the 25 percent limit .and not mandatory. Again, plaintiffs fail to carry their argument that the differential payment is mandatory.
In short, the amendments to the tropical differential regulations excluding plaintiffs are not overcome by section 101 ■of the Canal Zone Code.
(4) 5 O.S.C. § 715% (Rules and Regulations May Not Discriminate):
Plaintiffs further attack the amendments to the tropical ■differential regulations as invalid in light of 5 U.S.C. § 7152 (Supp. III, 1973), amending 5 U.S.C. §7152 (1970).
§ 7152. Marital status.
(a) The President may prescribe rules which shall prohibit, as nearly as conditions of good administration warrant, discrimination because of marital status in an Executive agency or in the competitive service.
(b) Regulations prescribed under any provision of this title, or under any other provision of law, granting benefits to employees, shall provide the same 'benefits for a married female employee and her spouse and children as are provided for a married male employee and his spouse and children. * * * [5 U.S.C. § 7152 (Supp. Ill, 1973)].
The amendments to the tropical differential regulations do not violate the proscriptions of this regulation.
The amended regulations are not at odds with subsection 7152 (a). In this subsection the President is given the authority to promulgate rules to prevent marital discrimination. Plaintiffs fail to cite any such rules which would invalidate-the amended tropical differential regulations. Moreover, discrimination based upon maritial status is to be proscribed “as nearly as conditions of good administration warrant.” As we have seen in Part (1), supra, the amendments are-
Nor do they conflict with subsection 7152(b). This portion of the statute prevents sex discrimination between married males and married females in the granting of Federal employment benefits. Significantly, the tropical differential regulations discriminate not on the basis of sex, but on the basis of age and marital status.
'(5) 5 U.S.O. § 7154- {General Schedule Pay Bates May Not Discriminate):
Plaintiffs also argue that the amended regulations offend the provisions of 5 U.S.C. § 7154 (1970). This statute is designed to prevent discrimination based on sex or marital .•status in setting the General Schedule Pay Bates:
§ 7154. Other 'prohibitions.
‡ ‡ ‡
(b) In the administration of * * * subchapter III of chapter 53 * * * of this title [fixing General Schedule Pay Bates], discrimination because of race, color, creed, sex or marital status is prohibited with respect to an individual or a position held by an individual. [5 XJ.S.C. § 7154(b) (1970)].
However, subsection 7154 (b) does not invalidate the tropical differential amendments. Once again, plaintiffs attempt to confuse the payment of compensation with the incentive nature of the differential allowance. Subsection 7154(b) prohibits discrimination in the General Schedule Pay Bates. The •General Schedule Pay Bates deal solely with compensation for services rendered. It is separate and apart from the trop
(6) 5 U.S.O. § 5301 {Equal Pay for Equal Worle) :
Finally, plaintiffs suggest that the amended regulations ■violate the provisions of 5 U.S.C. § 5301(1970):
§ 5301. Policy.
(a) It is the policy of Congress that Federal pay fixing for employees under statutory pay systems be based on the principles that—
(1) there be equal pay for substantially equal work; * * * [5 TJ.S.C. §5301 (a)(1) (1970)].
'Section 5301 obviously applies only to comfensation. We take no issue with the laudible general policy underlying Federal employment compensation. However, for the same reasons that other statutes cited by plaintiffs based on comfensation do not invalidate the regulations pertaining to the tropical differential allowance, neither does section 5301. See Parts (2), (3) and (5), sufra. Subsection 5301(a)(1) casts no aspersions on the Secretary of the Army’s tropical differential regulations.
In summary, the regulations promulgated by the Secretary of the Army excluding plaintiffs from the ambit of the tropical differential allowance, are valid. The Secretary is not required to pay an allowance to plaintiffs based on the provisions of 2 C.Z.C. § 146 (Tropical Differential). Nor did the regulations constitute an abuse of discretion. The regulations do not conflict with the provisions of 2 C.Z.C. § 146 (Tropical Differential), § 145 (Uniform Canal Zone Compensation Nates) or § 101 (Governor Fixes Compensation).
Accordingly, for the reasons stated above, plaintiffs’ motion for summary judgment is denied, defendant’s cross-motion for summary judgment is granted and the petitions-are dismissed.
This power is now placed in the hands of the Governor and the heads of executive departments. 2 C.Z.C. §§ 101, 144, 76A Stat. 14-15, 17 (1962).
The current codification of the Canal Zone Code is found in 76A Stat. Per 1 C.Z.C. § 1(b) (1962), we shall hereinafter cite such codification by use of the Canal Zone Code equivalents.
2 C.Z.C. § 142 (1962) provides In part:
Ҥ 142. General rules governing wage and employment practices.
“(a) The head of each department shall conduct the wage and employment practices In the Canal Zone of his department in accordance with the:
“(1) principles established in item 1 of the Memorandum of understandings set forth in section 1(b) of [72Stat. 405] * * * ;
“(2) provisions of this subchapter;
“(3) regulations promulgated by, or under the authority of, the President* * *;
“(4) provisions of applicable law.
“(b) To the extent he deems appropriate, the President may:
“(1) exclude any employee or position from this subchapter or from any provision of this subchapter; * * *.” [2 C.Z.C. § 142 (1962)].
2 C.Z.C. § 155(a) (1962) provides:
“The President shall coordinate the policies and activities of the respective departments under this subchapter, and may promulgate regulations necessary and appropriate to carry out the provisions and accomplish the purposes of this ¡subchapter.” [2 C.Z.C. § 155(a) (1962)].
Exec. Order No. 11171 provides in part:
“Subject to tbe further provisions of this order, there is delegated to the Secretary of the Army the authority vested in the President * * *
“(1) To exclude any employee or position from any or ail provisions of [the Canal Zone Code Wage and Employment Practices statutes] * * *” [Exec. Order No. 11171, § 2(a)(1), 3 C.F.R. 468 (1965)].
The prior suit has no impact on the present controversy as the instant action seefcs recovery for lost differential allowances accruing after Jan. 9, 1971. The settlement agreement specifically provided that it was made without prejudice to claimants’ right to recover additional amounts for periods subsequent to Jan. 9,1971.
Plaintiffs’ petition omits a jurisdictional statement. A cursory reading of the claim would appear to reveal that plaintiffs would base jurisdiction on the statutes which allegedly invalidate the regulations. However, a closer analysis makes it clear that plaintiffs in fact sue for pay under the Tucker Act, 28 U.S.C. § 1491 (1970). In other words, if plaintiffs ean successfully attack the amended regulations, they must he paid the tropical differential, and the current action becomes a classic pay suit under the Tucker Act.
The applicable language of section 146 is contained in Part (1), infra.
See Part (2), infra, for full text of section 145.
See Part (3), Infra.
See Part (4), infra.
See Part (5), infra.
See Part (6), infra.
The balance of plaintiffs’ arguments are based on 5 U.S.C. Plaintiffs urge ■that we apply the protections of this title to their employment in the Canal .Zone. They recognize that they are covered by the Canal Zone Merit System
Subsection 149(c)(1) provides that “(t]he Canal Zone Merit System shall * * * conform generally to policies, principles, and standards established by or-in accordance -with the [U.S. Government] Civil Service Act. * * *”
We need not decide whether plaintiffs are entitled to the benefits of 5 U.S.C. at this juncture. Even if title five applies to plaintiffs’ situation, plaintiffs are-unable to prevail on the merits of their discrimination arguments. Therefore, we do not decide the question at this time.
Defendant argues that plaintiffs cannot maintain their discrimination-claims, either because they have failed to exhaust administrative remedies, Pettit v. United States, 203 Ct. Cl. 207, 488 F. 2d 1026 (1973), overruled on. other grounds, United States v. Testan, 424 U.S. 392 (1976), or because all questions concerning discrimination in Federal employment are matters exclusively within the jurisdiction of the district courts, Brown v. General Services Administration, 507 F.2d 1300, 1306-07 (2d Cir. 1974), cert. granted, 421 U.S. 987 (1975). Again, we need not decide such questions as plaintiffs fail to-prevail on the merits of the instant action.
As evidence of the fact that the amendments do not discriminate between married maies and females, we note that the same regulations are currently ■■under attack in the district court by three male employees of the Panama Canal Co. Garcia v. Calloway, D.C.C. Civ. No. 74-779 (Filed May 22, 1974).
The concurrence’s use of United States v. Testan, 424 U.S. 392 (1976) to deny the 5 U.S.C. claims, mistakes the thrust of plaintiffs’ position. We agree that if plaintiffs’ action attempts to recover based solely on the discrimination statutes plaintiffs fail to state a claim for money damages. In such case Testan would apply. However, there is an “insulating factor” in this action which was not present in Testan. Plaintiffs do not attempt to recover a money damage claim on their 5 U.S.C. arguments, but attempt by use of these statutes, to have the Secretary’s regulations declared invalid. Once the regulations are invalidated plaintiffs must be paid the full 25 percent tropical differential under the prior law and the Tucker Act. Testan simply does not apply in the case at bar.
Concurrence Opinion
concurring:
Although I concur in the result reached by the majority,. I do not agree with all of the reasoning in the majority opinion. Furthermore, I believe there are issues and principles of law not included in the majority opinion that should be discussed and disposed of. Accordingly, I submit the following concurring opinion.
In these three consolidated cases, plaintiff, Margaret J. Plendricks and 140 other named plaintiffs, are married' women who were either employees on January 10, 1971, or thereafter, up to the date of the filing of their petitions, of the Panama Canal Government, or of the Canal Zone office of an agency of the United States Government. They claim that they have been deprived by regulations issued by the Secretary of the Army in 1971 and 1974 of what is known-as an overseas tropical allowance differential which they contend should have been paid to them in addition to their basic compensation. They sue here for the amount alleged to -be due each of them, respectively, as such tropical differential allowance during the time each of them, respectively,, was such employee between January 10, 1971, and the date of the filing of their petitions, and up to the date of judgment in this case.
The facts show that under the provisions of the Act of August 24, 1912, ch. 390, 37 Stat. 560, 561, Congress established a government for the Canal Zone and authorized the President to appoint the governor, and as supplemented by Executive Order 1888 of February 2, 1914, authorized the
On January 25,1955, the Government of the United States .and the Republic of Panama entered into a treaty of mutual understanding and- cooperation which granted Panamanian .citizens equality of opportunity for employment in all United .States' Government offices in the Canal Zone for which they -were qualified, and provided for the payment to them of the .-same basic wages paid to United States citizen employees. It was’provided in such agreement that there could be added to the base pay of a United States citizen employee an .amount representing a tropical differential allowance.
Thereafter, on February 7,1955, the President, by Executive Order 10595, designated the Secretary of the Army to ■supervise the administration of the Canal Zone Government iby the Governor of the Canal Zone and to exercise the powers ■vested in the President by 2 C.Z.C. § 81 (1934 Ed.).
On July 25, 1958, Congress enacted 72 Stat. 405, et seq., now codified as Subchapter III of ch. 7 of Title 2 C.Z.C. (1962) Ed.), 78A Stat. 6 et seq., with respect to the Government of the Canal Zone and governing the wage and .employment practices of the United States Government in the Canal .Zone. Tliis. is the statute presently in force. It provided in ^pertinent part as follows:
2 C.Z.C. § 31. Ganal Zone Government; administration and -functions generally. - ■ '
The Canal Zone Government, an independent agency .of the United States, shall:.
(1) be administered, under’ the supervision of the President or such officer of the United. States as may be designated by him, by a Governor of the Canal .Zone; * * * 76AStat. 7.
2 C.Z.C. § 32. Appointment and term of Governor.
The' President, ■ by and with the advice and consent of .the Senate, shall appoint the Governor , of the Canal*286 Zone. The Governor shall hold office for a term of four years and until his successor is appointed and has qualified. 76A Stat. 7.
2 C.Z.C. § 33. General powers and duties of Governor-
The Governor of the Canal Zone shall:
(1) have official control and jurisdiction over the Canal Zone; and
(2) perform all duties in connection with the civil' government of the Canal Zone, which is to be held,, treated and governed as an adjunct of the Canal. 76A. Stat. 7.
* £ * * *
2 C.Z.C. § 101. Appointment and compensation of Government employees.
(a) Except as otherwise provided by law, and subject to the supervision provided by section 31 of this-title, the Governor shall:
(1) appoint all officers and employees of the Canall Zone Government; and
(2) prescribe the compensation of officers and employees of the Canal Zone Government, and establish their conditions of employment, including matters relating to-transportation, medical care, leave, office hours, and! hours of labor.
(b) Compensation prescribed by the Governor under this section may not exceed, in any case, by more than 25 percent, the compensation paid for the same or similar services to persons employed by the Government in the continental United States. The definition of “continental United States” contained in section 141 of this, title applies to that term as used in this subsection. 76A Stat. 14.
The wage and employment practices are governed by the following:
2 C.Z.C. § 142. General rules governing wage cmd' employment practices.
(a) The head of each department shall conduct the-wage and employment practices in the Canal Zone of his department in accordance with the:
(1) principles established in item 1 of the Memorandum of Understandings set forth in section 1(b) of Public Law 85-550 (July 25,1958, 72 Stat. 405)-;
(2) provisions of this subchapter;
*287 (3) regulations promulgated by, or under the authority of, the President of the United States in accordance, with this subchapter; and
(4) provisions of applicable law.
(b)To the extent he deems appropriate, the President may:
(1) exclude any employee or position from this sub-chapter or from any provision of this subchapter; * * *. 76A Stat. 16.
2 C.Z.C. § 144. Compensation.
(a) The head of each department, in accordance with this subchapter, shall establish, and from time to time may revise, the rates of basic compensation for positions and employees under his jurisdiction.
(b) The rates of basic compensation may be established and revised in relation to the rates of compensation for the same or similar work performed in the continental United States or in such areas outside the continental United States as may be designated iri the regulations referred to in section 155(a) of this title.
(c) The head of each department may grant increases, in rates of basic compensation in amounts not to exceed the amounts of the increases granted, from time to time,, by Act of Congress in corresponding rates of compensation in the appropriate schedule or scale of pay. The ■head of the department concerned may make the increases effective as of such date as he designates but not earlier than the effective date of the corresponding increases provided by the Act of Congress.
(d) A rate of 'basic compensation established under this section may not exceed by more than 25 percent,, when increased by the amounts of the allowance and the differential authorized by section 146 of this title, the rate of basic compensation for the same or similar' work performed in the continental United States by-employees of the Government of the United States. 76A Stat. 17.
2 C.Z.C. § 145. Uniform application of standards and' rates.
The established employment standards and rates of' basic compensation established pursuant to sections 143; and 144 of this title shall be applied uniformly, irrespective of whether the employee or individual concerned is a, citizen of the United States or a citizen of the Republic^ of Panama. 76A Stat. 17.
*288 2 C.Z.C. § 146. Additional allowance and differential.
In addition to established basic compensation, there shall be paid to each employee who is a citizen of the United States such amounts as the head of the department concerned determines to be payable, as follows:
(1) an allowance for taxes which operate to reduce his disposable income in comparison with the disposable incomes of those employees who are not citizens of the United States; and
(2) an overseas (tropical) differential not in excess of an amount equal to 25 percent of the aggregate amount of the rate of basic compensation so established and the amount of the allowance provided in accordance with paragraph (1) of this section. 76A Stat. 17.
# % # # #
2 C.Z.C. § 148. Benefits based on compensation.
For the purpose of determining:
(1) amounts of insurance under the Federal Employees’ Group Life Insurance Act of 1954, as amended (5 U.S.C., sec. 2091, et seq.) [now 5 U.S.C. § 8702, et seq.'];
(2) amounts of compensation for death or disability under the Federal Employees’ Compensation Act as amended (5 U.S.C., sec. 751 et seq.) [now 5 U.S.C. § 8102, et seq.] ;
(3) amounts of overtime pay or other premium compensation;
(4) benefits under the Civil 'Service Eetirement Act, as amended (5 U.S.C., sec. 2251, et seq.) [now 5 U.S.C. § 8331, et seq.] ;
(5) annual leave benefits; and
(6) other benefits related to basic compensation — The basic compensation of each employee who is a citizen of the United States shall include the rate of basic compensation established for his position, and the amount of the allowance and differential determined, in the manner respectively provided by sections 144 and 146 of this title.
* * % % %
2 C.Z.C. §155. Administration by President; regulations; delegation of authority.
(a) The President shall coordinate the policies and activities of the respective departments under this sub-chapter, and may promulgate regulations necessary and appropriate to carry out the provisions and accomplish the purposes of this subchapter. ■
*289 (b) The President may delegate any authority vested in him by this subehapter, and may provide for the re-delegation of any such authority. 76A Stat. 19.
*****
Pursuant to the authority contained in the 1958 Act (2 C.Z.C. § 155(b) quoted above), the President issued Executive Order 10794 on December 10, 1958, 3 C.F.R. at 430-31 (1951 — 1958 Comp.) in which he delegated the authority granted by Congress to the President in 2 C.Z.C. §§ 142, 155(a) (1962 Ed.), to the Secretary of the Army. Pursuant to Executive Order 10794, the Secretary of the Army issued regulations on January 15, 1959, 24 F.R. 352, 5 C.F.R. § 1201 et seq. (1964 Ed.) providing in pertinent part as follows:
5 C.F.R. § 1201, et seq. (1964 Ed.)
§ 1201.3 Coverage.
(a) Coverage. The regulations in this chapter apply ■to all employees or applicants for employment, irrespective of citizenship, unless excluded in accordance with paragraph (b) of this section.
(b) Exclusions. The Secretary of the Army may, upon recommendation of the agency concerned, exclude employees or positions from the provisions of the Act or the regulations in this chapter or any provision of the Act or the regulations in this chapter and may extend rights and privileges to employees as provided in section 3(b) of the Act. * * * Positions and employees excluded from the provisions of the Act or the regulations in this chapter are published in § 1201.100.
# # ‡ # &
§ 1201.100 Exclusions.
Pursuant to the provisions of § 1201.3 (b) the following positions and incumbents thereof are excluded, to the extent indicated, from the provisions of the Act of July 25, 1958 (72 Stat. 405) and such regulations:
(a) The following positions, and the incumbents thereof, are excluded from all of the provisions of the Act, except section 16 thereof, and the regulations in this chapter.
(1) General Officers of the Panama Canal Company.
(2) Persons in the active military, naval, or public health service of the United States appointed to or employed by the Panama Canal Company or Canal Zone Government.
(3) The United States Attorney and Assistant United ■States Attorneys and the United States Marshal, Chief*290 Deputy United States Marshal, and Deputy United States Marshals for the Canal Zone.
(4) The magistrates.
■ (5) Hospital residents and interns, and other student hospital employees in those categories for which maximum stipends have been prescribed by the Civil Sendee Commission pursuant to statute.
(6)' Consultants and experts when employed under the provisions of section 15, Act of August 2, 1946, (5 U.S.C. 55a) or other statutory authority.
(7) Any employee excluded by the Act of June 19, 1952, as amended (5 U.S.C. [1964 Ed.] 150k), from coverage under laws administered by the Civil Service Commission. [Non-appropropriated fund activity employees.]
(8) Inmate employees of Corozal Hospital and the Palo Seco Leprosarium.
(9) Public Defender.
(10) The probation and parole officer and deputy parole and probation officers.
(11) Chauffeur, Car of President, Panama Canal Company.
(12) Caretaker and service employees assigned to residence of the Governor of the Canal Zone. ■
❖ * * * ifC
§ 1204.1 Uniformity of jot classification standards.
In order to apply the provisions of section 6 of the Act concerning uniform application of rates of basic compensation, job classification standards shall be uniform within and among all departments. Any problems arising in achieving such uniformity which cannot be resolved among the departments shall be referred to the Board for resolution. If resolution is, not achieved they shall then be forwarded to the Secretary of the Army for decision. .
§ 1204.2 Uniformity of compensation.
The rates of basic compensation for positions and employees, the overseas (tropical) differential and additional approved additives, such as tax factor, shall be uniform within and among all departments. Any problems arising in achieving such uniformity shall be referred to the Board for resolution. If resolution is not achieved they shall then be forwarded to the Secretary of the Army for decision.
Executive Order 11171 provided in pertinent part as follows:
By virtue of tbe authority vested in me by Section 155 of Title 2 of the Canal Zone Code (76A Stat. 19), and as President of the United States, it is hereby ordered as follows:
S}« # ❖ ❖ ❖ '
Sec. 2. (a) Subject to the further provisions of this order, there is delegated to the Secretary of the Army the authority vested in the President by Sections 142 and 155 of Title. 2 of the Canal Zone Code:
(1) To exclude any employee or position from any or all provisions of subchapter III.
* ❖ * * ❖
(3) To coordinate the policies and activities of the respective departments under subchapter III,
(4) To promulgate such regulations as may be necessary and appropriate to carry out the provisions and accomplish the purposes of subdhapter III.
(b) The Secretary of the Army may. redelegate any of the authority delegated to him by subsection (a) of this section.
(c) In promulgating regulations pursuant to the authority delegated by this section (including regulations with respect to the matters covered by Sections 3 and 4 of this order), the Secretary.of the Army shall give effect to the following-described policies:
(1) Employment standards, rates of basic'compensation, availability of training facilities and programs shall be applied uniformly among all departments in the Canal Zone to all employees irrespective of whether they are citizens of the United States or of the Bepublic of Panama.
■ if: * * #
(3) Exclusions of employees or positions from any or all provisions of subchapter III and the extension of rights and privileges to employees, as provided in Section 142(b) of Title 2 of the Canal Zone Code, shall be made only in accordance with regulations issued under this order. Such regulations shall provide for excluding employees or positions from the Canal Zone Merit System only for reasons for which exclusions or exceptions are made from the competitive civil service.. ■
§ 253.135 Tropical differential
(a) An overseas, tropical differential for U.S. citizen employees who qualify under the provisions of paragraph (b) of this section shall be fixed by the head of each department in an amount equal to 15 percent of the aggregate compensation established under §§ 253.131 and 253.134. Such differential shall be reviewed periodically 'by the Secretary of the Army and adjusted to the extent necessary to furnish a suitable incentive in recruitment of qualified personnel and to provide pay benefits substantially equal to those accorded U.S. citizens employed by the Federal Government in comparable foreign areas.
(b) The tropical differential shall be paid to employees who are U.S. citizens except those in the following categories:
(1) A married woman whose husband resides in the Canal Zone or the Eepublic of Panama. This exclusion shall not apply to such a married woman if she establishes to the satisfaction of her department that:
(1) Her husband is physically or mentally incapable of self-support;
(ii) She is legally separated; or
(iii) Her husband is 51 percent or more dependent upon her for his support.
(2) A child or stepchild of a resident of the Canal Zone or the Eepublic of Panama who is under 21 years of age and unmarried or who, regardless of age or marital status, does not maintain a separate household.
(c) Notwithstanding the provisions of paragraphs (a) or (b) of this section, each U.S. citizen employee in service on October 11,1964, shall retain as a fixed tropical differential an amount equal to 25 percent of the aggregate compensation established under §§ 253.133 and*293 253.134 for the grade and pay step to which, he was assigned on July 20, 1964, or if employed after that date, for. the. grade and pay step to which he would have been assigned had he been employed on July 20, 1964; Calculation of the fixed differential shall be made without reference to any retroactive pay increases authorized subsequent to July 20, 1964. If the employee’s aggregate compensation is reduced after July 20,1964, by reason of demotion or otherwise, his fixed differential shall be adjusted to the rate which he would have retained had he been assigned the lower grade or pay step on July 20,. 1964. The retained rate of tropical differential shall continue to be paid only until one of the following events occurs:
(1) There is a break in service of one day or more;
(2) A 2-year period has elapsed since October 11,1964, and the employee is at that time, or thereafter becomes, ineligible to receive the differential under the conditions prescribed by paragraph (b) of this section; or
(3) The employee becomes eligible for the same or a greater amount of differential under paragraphs (a) and (b) of this section. When the fixed differential is discontinued under this subparagraph due to payment of compensation under §253.155 for an additional pay assignment, it shall be reinstated upon termination of such assignment.
(d) An employee may be paid tropical differential tuider this section only to the extent that such payment, when combined with his aggregate compensation established under §§ 253.133 and 253.134, does not exceed the current rate of step 5, GS-17, of the General Schedule of the Classification Act of 1949, as amended.
After the Secretary of the Army issued the regulations in 35 C.F.R.. § 253.135 in 1964, quoted above, a group of married women, including plaintiff Hendricks, who were Canal Zone employees of the United States, filed a suit in this court entitled Margaret J. Hendricks v. United States, No. 202-68 for recovery of the differential allowance that had been denied them by the 1964 regulations, claiming that the 1964 regulations discriminated against them. The case was settled by agreement of the parties on May 7, 1971, covering the claims of the then plaintiffs for the differential allowance for the period from October 11, 1966 to and including January 9, 1971. The settlement was made without prejudice to the rights of the plaintiffs to claim the difieren-
On December .22, 1970, the. Secretary of the Army promulgated in 35 F.R. 19750-19751 the following changes, in pertinent part, in 35 C.F.R. § 253.135(b), effective January 10,1971:
I I 1C CO r-1 CO lO
*
(b) The tropical differential shall be paid to employees who are U.S. citizens except as provided in the following subparagraphs:
(1) 'When a U.S. citizen employee is married to another U.S. citizen employee, the differential may be paid to one spouse only.
(2) When a U.S. citizen employee is married to a person not employed by a department such, employee .is eligible to receive the differential only if such employee is the member of the family whose job may reasonably be deemed to be the job which determines the location of the family in the area. The spouse of a person serving in the U.S. military forces in-the area shall not be deemed to be a person whose job determines such location.
(3) A child or stepchild of a resident of the Canal Zone or the -Republic of Panama who is under 21 years of age and unmarried is not eligible.
These provisions were applied to the plaintiffs until April 28, 1974, when the following changes in 35 C.F.R. § 253.135(b), published by the Secretary of the Army on April 16, 1974, 39 F.R. 13650-13651, becamé effective: ■
H: H: ❖ ❖
*295 (b) The tropical differential shall be paid to employees who are Ü.S. citizens except as provided in the following subparagraphs:.
(1.) When a U.S. citizen employee, is married .to an-, other U.S. citizen employee, the differential may be paid to one spouse only. ^
(2) The U.S. citizen employee whose spouse is a mem-her of a U.S. military service stationed in the area may be paid the differential only to the extent the amount of the' differential otherwise payable exceeds the' amount of the total housing allowance (BAQ plus the housing' portion of the station allowance) ; established’ for 'Panama City, Republic of Panama for. a military member having the same rank and family, size as the employee’s military spouse. The U.S. citizen employee whose spouse, by reason of U.S. Government employment in the Republic of Panama, is eligible under the Department of State Standardized Regulations (Government Civilians, Foreign Areas) (DSSR) for a living quarters allowance (LQA) may be paicLthe differential only to the extent the amount of the differential otherwise payable exceeds the amount of LQA established for Panama City, Republic of. Panama by sections 920 and 932.22 of the DSSR for one in the same quarters group and with the same family size as the employee’s spouse.
(3)- A child or stepchild of a resident of the Canal Zone of the Republic of Panama who is under 21 years of age and unmarried is not eligible.
Before considering the various contentions and arguments of the plaintiffs, I wish to point out that the purpose of the tropical differential was as stated by the Fifth Circuit Court of Appeals in Leber v. Canal Zone Central Labor Union & Metal Trades Council, 383 F. 2d 110 (1967), cert. denied sub nom. Bramlett v. Leber, 389 U.S. 1046 (1968) as follows:
The purpose of the differential is admitted to be an inducement to get American citizens to work overseas in so-called hardship areas and" to. alleviate some of the financial, burdens, of taking such employment. * * * [Id. at 120.]
This purpose is also shown in. the text .of the 1971 regulations where it is stated that Section 253.135(a) provides for periodic review and adjustment by the Secretary.of the Army:
* * * [T]o. the extent necessary to furnish a-suitable incentive in recruitment of qualified personnel and to*296 provide pay benefits substantially equal to those accorded U.S. citizens employed by the Federal Government in comparable foreign areas.
This discretionary authority vested in the President and delegated to the Secretary of the Army appears to be laudable and reasonable. The controlling statute is 2 C.Z.C. § 142 (b) (1) which gives the President, and through him, the Secretary of the Army full discretion and authority to exclude any employee or position from the coverage of the Act that provides for the payment of a tropical differential allowance. See the Leber case, supra (383 F. 2d 110, 116-19).
The Secretary of the Army, in promulgating the two versions of 35 C.F.R. § 253.135 that are currently under review herein, (1971 and 1974), has exercised the discretion vested in him with the result being that the various plaintiffs are employees who have been excluded from the coverage of the tropical differential. In an analogous situation, the court in Port Authority of Saint Paul v. United States, 193 Ct. Cl. 108, 432 F. 2d 455 (1970), relying upon the Supreme Court’s decision in Udall v. Tallman, 380 U.S. 1, 16 (1965), stated that:
* * * [T]o sustain an administrative interpretation of a regulation issued by it, it is not necessary to find that the agency construction is the only reasonable one, or even that it is the result a court would have reached had the question arisen in the first instance in judicial proceedings.
Where administrative control has been authorized by Congress, the judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body. Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282, 286-87 (1934). [Id. at 120, 432 F. 2d at 461.]
The regulations in question appear to have a rational basis and purpose and evidence a valid exercise of discretion by the Secretary of the Army.
There are four basic categories of United States citizen-employees who were made ineligible to receive the differential under the regulation of the Secretary of the Army which became effective on January 10, 1971. Each of these
(1) An employee whose spouse also is a Government employee and who also is the family member who has elected to receive the differential (35 C.F.R. §253.135(b) (1)). "Where one spouse of a family unit is living and working in the Canal Zone and is being paid a differential as an inducement to live and work there, it is a valid presumption that no further incentive is necessary to induce the husband or wife to live in the Canal Zone.
(2) An employee member of a family unit whose presence in the Canal Zone is attributable to the job of his or her spouse. (35 C.F.R. § 253.135(b) (2)). Where a family has chosen to make the Canal Zone its home, ¡because of the employment of one spouse in the private sector, it is unnecessary to pay a differential to the husband or wife in order to keep him or her in the area for employment by the United States Government.
(3) An employee whose spouse is serving in the United States military forces and who is assigned to the Canal Zone area (35 C.F.R. § 253.135(b) (2)). When one spouse is stationed in the area as an active duty member of the United States Armed Forces, and the family, if it opted to set up a residence in the Canal Zone, is provided rent free quarters or a quarters allowance, the husband or wife has sufficient incentive to live in the area without receipt of the tropical differential.
(4) An employee who was under 21 years of age, unmarried and the child or stepchild of a resident of the Canal Zone or the Republic of Panama (35 C.F.R. § 253.135 (b) (3)). It is sufficient to note that a person who is under 21 and unmarried is a minor under the Canal Zone Code and that such persons are entitled to parental support and could not normally maintain a separate household (4 C.Z.C. § 31, 78A Stat. 78). However, it is also quite obvious that in almost all instances when an individual who graduates from high school, or otherwise enters the labor market while a resident of the Canal Zone, that individual is not present in
Effective April 28, 1974," the regulation was modified to allow' payment of the differential in certain cases in which it had previously been withheld (35. C.F.R. §. 253.135(b) (2) (1974))..The “reason for being in the area” test (subpara-graph (2) above) was eliminated because it had proven too difficult and costly to administer due to.the requirement to analyzethe subjective "factors .specified for consideration. In the case of employees married to members of the armed forces (subparagraph, (3) above), or to other Government employees eligible .to receive a quarters allowance, the differential may now be paid, but only insofar .as it exceeds the amount, of such a quarters allowance. This change was instituted because, for employment purposes, it was determined that this inducement may be required to lure the spouse into the Canal Zone.
While plaintiffs’ petitions do not so state, it is presumed that these cases are filed in this court under the Tucker Act, 28 U.S.C. § 1491 (1970), .which provides in pertinent part as follows:
The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded eithér upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. * * *
The plaintiffs say that they base their claims on. the following statutes and regulations:
1. Act of August 24, 1912, ch. 390, § 4, 37 Stat. 560, 561, now codified-as 2 C.Z.C. §101 (1962 Ed.);
• 2. Act of July 25, 1958, 72 Stat. 405, et seq., also known as Pub. L. 85-550, now codified in pertinent part as -2C.Z.C. §§ 141, 156 (1962 Ed.);
3. The provisions of 5 U.S.C. § 7152 (a) (Supp. I, 1971); '
*299 ■41 Regulations of the Secretary of the Army, issued on January 15, 1959, 24 F.R. 352, 5 C.F.R. § 1204;2, (1964 Rev.); . . .
5. Regulations of the Secretary of the Army promulgated on October 10, 1964, 29 F.R. 14024, 'as amended on January 10,. 1971, 35 F.R. 19750-19751, 35 C.F.R. §253.135 (1973 Rev.); and '
6. Part 713, Federal Personnel Manual § 4.3.
The plaintiffs attack the 1971 and 1974 regulations that exclude them from the benefits, of the differential allowance; and say that such regulations are invalid for various reasons which I will consider below. They argue that since the regulations are void, they are entitled to a money judgment for the differential allowance from January 10,1971, up to the date of judgment in this case.
In the first place, plaintiffs contend that the regulatiohs are void because they conflict with the statute, 2 C.Z.C. § 146. They say that 2 C.Z.C. § 146 requires the payment of a differential allowance to each employee who is a citizen of the United States. I do not so construe the statute. The plain wording of the statute is contrary to plaintiffs’ position. The statute provides:
2. C.Z.C. § 146. Additional allowance and differential.
In addition to established basic compensation, there shall be paid to each employee who is a citizen of the United States such amoimts as the head of the department concerned determines to be payable, as follows:
* * * * *
(2) an overséas {tropical) differential not in excess of an amount equal to 25 percent of the aggregate amount of the rate of basic compensation so established and the amount of the allowance provided in accordance with paragraph (1) of this section. 76A Stat. 17. [Emphasis supplied.]
It is clear that the statute provides for the payment of “such amounts as the head of the department [Secretary of the Army] determines to be payable” as a differential. The Secretary of the Army has determined that no amount shall be paid to the plaintiffs as a differential, because he has excluded them from the benefits of the differential allowance in the Act. There is no question that he had the authority
(b) To the extent he deems appropriate, the President may:
(1) exclude any employee or position from this sub-chapter or from any provisions of this subchapter; * * * 76A Stat. 16.
Of course, the Secretary of the Army exercised the authority of the President by appointment and delegation from him as shown by the various Executive Orders quoted above. The exclusion of the plaintiffs by the Secretary of the Army was a valid exercise of the authority delegated to him. See Leber, supra. Accordingly, instead of the statute mandating the payment of the differential to the plaintiffs, it actually denied them the differential. Plaintiffs’ argument in this regard must be rejected.
The plaintiffs argue that the regulations are invalid because they do not comply with 2 C.Z.C. §§ 144, 145 which pi’ovide that the rates of basic compensation shall be applied uniformly. This argument is unpersuasive. 'It will be observed that basic compensation is different from the differential allowance. This is shown by 2 C.Z.C. § 146 where it is stated:
In addition to established basic compensation, there shall be paid * * *.
(2) an overseas (tropical) differential * * * . [Emphasis supplied.]
The plaintiffs contend that the regulations discriminate against them because of their marital status in violation of 5 U.S.C. § 7152 and 7154(b) (Supp. III, 1973), which renders them void.
Section 7152 as amended by section 3 of Pub. L. 92-187, December 15, 1971, 85 Stat. 644, 5 U.S.C. § 7152 (Supp. III, 1973) now provides:
§ 7152 Marital status.
(a) The President may prescribe rules which shall pi’ohibit, as nearly as conditions of good administration warrant, discrimination because of marital status in an Executive agency or in the competitive service.
_(b) Regulations prescribed under any provisions of this title, or under any other provision of law, granting*301 benefits to employees, shall provide the same benefits for a married female employee and her spouse and children as are provided for a married male employee and his spouse and children.
(c) Notwithstanding any Other provision of law, any provision of law providing a benefit to a male Federal employee or to his spouse or family shall be deemed to provide the same benefit to a female Federal employee orto her spouse or family.
Section 7152 requires that married females be treated in the same way that married males are treated and that unmarried males and unmarried females are to be treated alike. The facts in this case show that those in each group were treated equally with each other. That the regulations do not discriminate against women because of sex is clearly evidenced by the fact that the regulations under attack herein are currently challenged in the district court by three male employees of the Panama Canal Company. Garcia v. Callaway, Civil No. 74-779 (D.D.C.), who claim they are discriminated against by the regulations because they are males.
Also, 2 C.Z.C. § 146 provides that “There shall 'be paid to each employee [male or female, single or married} * * *” a differential allowance. Regulation 35 C.F.R. § 253.135(b) provides that “The tropical differential shall be paid to employees who are U.S. citizens * * * [man or woman}.” [Emphasis supplied.) Thus, both the statutes and the regulations treat married men and married women alike, and treat single men and single women alike, and there is no discrimination because of sex. This analysis also answers plaintiffs’ argument that the regulations violate 5 U.S.C. § 7154(b) (Supp. III, 1973) because they discriminate against plaintiffs on account of sex. That regulation provides as follows:
§7154. Other prohibitions.
*****
(b) In the administration of * * * subchapters III and IV of chapter 53, * * * of this title, discrimination because of race, color, creed, sex, or marital status is prohibited with respect to an individual or a position held by an individual.
Sections'7l52'and'7l54(b)- are‘noUself-executing. They,' like.,5 U.S.C. -§ 5.301(a) (1) .(.equal-pay for. equal work)also relied on- by plaintiffs, are announcements of policy that provide no penalty if not -convplied with.: They domot mán-date the payment of any money to anyone if-.violated; Neither-do they create any substantive- rights in .any -employee in the-Canal- Zone that ■ will, support a claim, for money damages from the United States. / ■
The Supreme Court has occasion to decide this very question in a recent unanimous opinion in United States v. Testan, 424 U.S. 392 (1976). In that case the plaintiffs were attorneys who claimed they were wrongfully classified in a grade lower than attorneys in another agency who were doing .the same kind.of .wfirk. They,filed suit in the Court qf Claims for money damages as back pay under the Classification Act which provides in 5 U.S.C. § 5101 for “equal pay for substantially equal work,”- and- under thé Back Pay
. ■ The'Tucker Act, .of course, :is. Itself-only' a -juiisdic-,'tional .statute; it does not..create.a-ny.substantive,right enforceable against the' United;States-for money, damages. The Court of Claims has recognized that- the. Act merely confers jurisdiction upon-it whenever-the substantive- right- exists. Eastport Steamship Corp. v. United States, 178 Ct. Cl. 599, 605-607, 372 F. 2d 1002, 1007-1009 (1967). We therefore must determine whether the two other -federal statútes- that are invoked: by the respondents confer a substantive-right to recover-money damages from the-United States for the period of-their allegedly wrongful civil ■ service classifications.' [Id. at 398.]
The Court then considered the Classification. Act which provides for equal pay for substantially equal work, and held that the Act nowhere provides for an award of .back, pay to a person who has been erroneously classified. This, is analogous to the claims of the.plaintiffs in,the instant suit that they-have not been given “equal pay for equal work;”- that the salaries have riot been applied uniformly to all employees ; that they have been discriminated against becáuse of sex and marital status. But as was the case in Testan, with regard to the Classification Act, none .of. the statutes or regulations on which- the .plaintiffs base their claims .provide- for payment of money to-an employee-under the circumstances which they allege exist.. ' - - ' ■
* * * [I]t is implicit in the court’s decision in favor of respondents that a violation of the Classification Act gives rise to a claim for money damages for pay lost by reason of the allegedly wrongful classifications.
It long has been established, of course, that the United States, as sovereign, “is immune from suit, save as it consents to be sued * * * and the terms of its consent to -be sued in any court define that court’s jurisdiction to entertain the suit.” United States v. Sherwood, 312 U.S., at 586. And it has been said, in a Court of Claims context, that a waiver of the traditional sovereign immunity “cannot be implied but must be unequivocally _ expressed.” United States v. King, 395 U.S., at 4; Soriano v. United States, 352 U.S. 270, 276 (1957). Thus, except as Congress has consented to a cause of action against the United States, “there is no jurisdiction in the Court of Claims more than in any other court to entertain suits against the United States.” United States v. Sherwood, 312 U.S., at 587-588.
We pód no provision in the Classification Act that expressly makes the United States liable for pay lost through allegedly improper classifications. To be sure, in the “purpose” section of the Act, 5 U.S.C. § 5101, Congress stated that it was “to provide a plan for classification of positions whereby * * * the principle of equal pay for substantially equal work will be followed.” And in subsequent sections, there are set forth substantive standards for grading particular positions, and provisions for procedures to ensure that those standards are met. But none of these several sections contains an express provision for am, award of bach pay to a person who has been erroneously classified. [Emphasis supplied.] [Id. at 399-400.]
* * * As stated above, the Tucker Act is merely jurisdictional, and grant of a right of action must be made for specificity. The respondents do not rest their claims upon a contract; neither do they seek the return of money paid by them to the Government. It follows that the asserted entitlement to money damages depends upon whether any federal statute “cam, fairly be interpreted as mandating compensation by the Federal Government for the dannage sustained.” Eastport Steamship Corp. v. United States, 178 Ct. Cl., at 607, 372 F. 2d at 1009; Mosca v. United States, 189 Ct. Cl. 283, 290, 417*305 F. 2d 1382, 1386 (1969), cert. denied, 399 U.S. 911 (1970). * * * [Emphasis supplied.] Id. at 400.]
* * * Where the United States is the defendant and the plaintiff is not suing for money improperly exacted or retained, the basis of the federal claim — whether it be the Constitution, a statute, of a regulation — does not create a cause of action for money damages unless, as the Court of Claims has stated, that basis Hn itself ’ “can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained” Eastport Steamship Corp. v. United States, 178 Ct. Cl., at 607, 372 F. 2d, at 1008-1009. We see nothing akin to this in the Classification Act or in the context of a suit seeking reclassification. [Emphasis supplied.] {Id. at 401-402.]
The Supreme Court then considered the Back Pay Act and held that it did not apply to wrongful classification claims. The Court said:
C. The Back Pay Act. This statute, which the Court of Claims found unnecessary to evaluate, in arriving at its decision, does.,not apply, in our view, to Wrongful classification claims. The Act does authorize retroactive recovery of wages whenever a federal employee has “undergone an unjustified or unwarranted personnel action that has resulted in the withdrawal or reduction of all or a part of the compensation to which the employee is otherwise entitled.” 5 U.S.C. § 5596(b). The statute’s language was intended to provide a monetary remedy for wrongful reductions in grade, removals, and suspensions, * * *.
:Jc
* * * [T]he Back Pay Act, as its words so clearly indicate, was intended to grant a monetary cause of action only to those who were subjected to a reduction in their duly appointed emoluments or position.
Ill
We therefore conclude that neither the Classification Act nor the Back Pay Act creates a substantive right in the respondents to backpay for the period of their claimed wrongful classifications. * * * [Id. at 407.]
The significance of the Testan case and its applicability to the instant case is that since the plaintiffs are not suing on contracts nor for money improperly exacted or retained, but are suing for money on the basis of the recited statutes and
-The plaintiffs also rely on 2 C.Z.C. § 101 (quoted above) which provides that the Governor of the Canal Zone shall appoint all employees of the Canal Zone Government and fix their-compensation, so that it will not. exceed by-more .than 25 percent the .compensation paid for the same or”.’similar services to persons employed-by the Government in the, continental United States. This, statute is of no help to the plaintiffs for several reasons. In the first place, the statute speaks of “Compensation” wliich within the meaning of -the various statutes 'and regulations, is different from the “tropical differ-entia! allowance” involved here. In the next place, 2 C.Z.C. § 101 does not mention the differential, allowance nor authorize the Governor to do, anything about it..Furthermore, the. amount' of compensation fixed by the Governor is discretionary within the 25 percent'limit mentioned above, and the statute'does not mandate the payment of rhoiiey to any of the
The Canal Zone Government and the Panama Canal Company are'departments within-the, meaning of the statutory definition. It is clear, therefore, that wage and-employment practices of these two entities are subject to regulation by the . Secretary of the Army:' HA is'the' pffi-cial charged with the responsibility of'coordinating the' -policies and activities of the respective departments and' promulgating;.regulations necessary--and- appropriate tó cany out the intent of the statutes;. [Footnote omitted.] [383 F. 2d at 114.] . ' .
Therefore, it is clear that the-plaintiffs have not cited any-statute or regulation, that-mandates the payment-of money damages- to them because of the alleged discrimination, and for that reason have not alleged a claim on which relief can be granted. Under these circumstances, since the plaintiffs' have not shown a substantive right, to presently due money-damages from the United States, we are not authorized by the Tucker Act to award them a judgment for money damages against the Government.'See. Testan, supra.
.Of course, as pointed, out above, the plaintiffs contend that; the regulations in- question here are invalid. The Fifth Circuit Court of. Appeals had-this identical problem before it in Leber, supra: In that case the regulations of 4964 were attacked as being void. Those regulations reduced the differ-, ential allowance, from 25 to 15 percent and also excluded certain employees from the benefits of the .differential, just-as the 1971 and-1974 regulations have done in oiir.-case.Tn that case the court held:
- (1) The Secretary off the Army had the authority granted by . Congress' to the President .and delegated by him to the -Secretary to pay a differential less than 25 percent.
(8) The Secretary could make reasonable exclusion of United States citizens from the benefits of the differential, which he did.
(4) The authority granted by Congress to the ‘President and delegated by him to the Secretary was not an invalid or improper delegation of the legislative power of Congress to officials of the Executive Branch.
(5) The 1964 regulations were valid.
In the Léber case the plaintiffs were seeking the differential allowance denied to them by the 1964 regulations. To that extent, their claims were identical in principle to the claims of the plaintiffs under the 1911 and 1974 regulations in the case before us. ‘In my opinion, the well written decision of the Fifth Circuit Court of Appeals in that case was correct, and I would adopt the reasoning and holding of the court there expressed as to issues present in our case that are the same as those found in Leber.
We should hold that the current Canal Zone Code, 2 C.Z.C. §§31-156 enacted by Congress authorized the President to appoint the Secretary of the Army with authority to administer the Canal Zone Government and to administer the wage and employment practices in the Canal Zone, and to determine the amount of the tropical differential allowance to be paid to United States citizen employees, and to determine which of such employees should receive the differential, and to exclude others (such as the plaintiffs) from the benefits of the differential; that the President did appoint the Secretary of the Army for said purposes and with such authority 'by Executive Orders 10794 and 11171; that the Secretary exercised such authority through the 1971 and 1974 regulations by reducing the differential from 25 to 15 percent of basic compensation and by excluding certain employees from the benefits of the differential (including the plain
We should hold further that the plaintiffs have not alleged nor shown any substantive right to receive presently due money damages by reason of the violation of any statute or regulation on which they base their claims that mandate the payment of money to them by the United States; and that without such an allegation and showing, this court is not authorized by the Tucker Act to award them a recovery for money damages against the United States. See Testan, supra. It is clear that the plaintiffs have not alleged a claim on Avhich relief can be granted.
I concur in the result reached by the majority and would deny plaintiffs’ motion for summary judgment and grant defendant’s cross-motion, and dismiss plaintiffs’ petitions.
No change was made in-35 C.F.R. § 253.135(a) of the 1964 regulations quoted above.
In Reinheimer v. Panama Canal Co., 413 F. 2d 153 (5th Cir. 1969), on remand, 344 F. Supp. 510 (D.C.Z. 1972), aff’d. mem. 491 F. 2d 1271 (5th Cir. 1974), the court held on remand that the exclusion of certain pilots from the benefits of the differential allowance was upheld, and this was affirmed by the Fifth Circuit Court of Appeals.
