Lodge 1858, American Federation of Government Employees v. James E. Webb, Administrator, National Aeronautics and Space Administration, Lodge 1858, American Federation of Government Employees v. James E. Webb, Administrator, National Aeronautics and Space Administration Appeal of National Council of Technical Service IndustriesLodge 1858, American Federation of Government Employees v. James E. Webb, Administrator, National Aeronautics and Space Administration, Lodge 1858, American Federation of Government Employees v. James E. Webb, Administrator, National Aeronautics and Space Administration Appeal of National Council of Technical Service Industries
Gil Zimmerman, Special Atty., Dept. of Justice, Washington, D.C., for appellants in No. 76-1821.
Rex E. Lee, Asst. Atty. Gen., and Irving Jaffe, Deputy Asst. Atty. Gen., Washington, D.C., were on the brief for appellants in No. 76-1821.
Ronald R. Glancz and Harry R. Silver, Attys., Dept. of Justice, Washington, D.C., also entered appearances for appellants in No. 76-1821.
James F. Fitzpatrick, Washington, D.C., with whom Stephen M. Sacks, Washington, D.C., was on the brief, for appellant in No. 76-1934, also entered appearances for appellee, National Council of Technical Service Industries in No. 76-1821.
Edward L. Merrigan, Washington, D.C., for appellees.
Before Mr. Justice CLARK,* of the Supreme Court of the United States, and MacKINNON and ROBB, Circuit Judges.
Opinion for the Court filed by Circuit Judge MacKINNON.
MacKINNON, Circuit Judge:
I
A reduction-in-force (RIF) was announced at the Marshall Space Flight Center in Huntsville, Alabama (Marshall and MSFC), on December 6, 1967.1 764 federal government employees were originally affected, though this was later reduced to only 166. The RIF procedure2 requires that employees be laid off only if they cannot be placed in alternative available positions for which they are qualified at Marshall. NASA utilized the services of both government employees and independent technical service contractors who in turn hired their own employees (contractor employees).3
Appellants here are several former individual employees of Marshall, who have been displaced by the RIF, and the union.4 Their complaint, in its most essential terms, is that NASA was employing many technical service workers at Marshall supposedly as independent contractors, but actually with a degree of control by NASA and with other characteristics that made them functionally employees of the United States. It is alleged that such an arrangement would violate the Civil Service laws,5 and that if they were actually employees of the United States, the arrangement would allegedly also violate NASA‘s own statute,6 and its collective bargaining agreement. If the contracts with the independent technical services contractors which are here in question, were, for these reasons, illegal, appellants contend that they should then be set aside and that civil service employees, rather than being terminated by the RIF, should be permitted to take over the positions filled under the agreements with the contractors.
The “Pellerzi Standards,” referenced in the trial judge‘s order, figure importantly in this appeal. In October of 1967, General Counsel Pellerzi of the U.S. Civil Service Commission issued an opinion concerning the legality of certain contracts at the Goddard Space Flight Center.8 That opinion set forth six specific criteria for determining whether the individuals furnished by the independent contractors were employees of the contractors or of the United Stаtes.9 If all six criteria were present, an arrangement that had been considered an independent contract should instead, in the Commission‘s view, be treated as employment.
On December 21, 1973, the district court clarified its order to the Civil Service Commission. At issue was a supplement to the Pellerzi opinion that had been prepared by the successor General Counsel Mondello of the U.S. Civil Service Commission (J.A. 1512). The court instructed that “the Mondello Supplement . . . did not add any new or different standards or cancel or delete any of the ‘Pellerzi Standards’ but reaffirmed them and supplied the classification thereof” (J.A. 442).
The U.S. Attorney had submitted instructions to the United States Civil Service Commission as to the correct standard to use, but the district court in an order of April 2, 1974 refused to approve those instructions. On May 30, 1974, the Civil Service Commission issued its report on the Marshall contracts.
The Commission‘s report was thorough and exhaustive.10 It reached the conclusion that none of the contracts involved in this case were impermissible. The district court, after reviewing the Commission‘s report, disagreed. Thirty-two contracts are involved in this case; the court held that twenty-two of them were invalid, two more were partially invalid, and eight were permissible (J.A. 434-35). The Administrator of NASA and the intervenor National Council of Technical Service Industries brought this appeal.
Appellants reiterаte their objections to plaintiffs’ standing, but these matters have already been settled on previous appeal.11 In brief recapitulation, the plaintiffs here, and their union, would benefit from a voiding of the allegedly impermissible contracts. There would be substantial retroactive benefits and substantial future benefits except in the rare case that NASA immediately abolished all of the jobs the contractors were filling, or immediately provided for legitimate contracts to cover them. These possibilities are not so likely of realization, however, as to make the relief sought by plaintiffs purely speculative within the meaning of Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). Furthermore, the statutes and regulations protecting rights of federal civil service employees constitute a “pervasive legislative scheme governing the relationship between the plaintiff class and the defendant class in a particular regard” within the meaning of Cort v. Ash, 422 U.S. 66, 82, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). And permitting a private cause of action to prevent abuses of that legislative scheme would not interfere with the statutory purpose or with concerns of federalism. Cort v. Ash, 422 U.S. at 78, 95 S.Ct. 2080.
III
Accordingly, we turn to the merits of the appeal. The basic question presented is whether the support service contracts in effect at the Marshall Space Flight Center viоlate the personnel procurement restrictions of the NASA enabling act as set forth in
Subsection (b)(2) of the act provides as follows:
(b) In the performance of its functions the Administration is authorized
(2) To appoint and fix the compensation of such officers and Employees as may be necessary to carry out such functions (listed in subsection (a)). Such officers and Employees shall be Appointed in accordance with the civil service laws and their compensation fixed in accordance with chapter 51 and subchapter III of chapter 53 of Title 5, Except that (A) to the extent the Administrator deems such action necessary to the discharge of his responsibilities, he may appoint not more than four hundred and twenty-five of the scientific, engineering, and administrative personnel of the Administration without regard to such laws . . .
(Emphasis added). This section states only that NASA‘s employees shall be covered by the civil service and compensation laws, except that 425 NASA Employees can be appointed without regard to those laws. The exception was intended to enable NASA to recruit qualified scientists, engineers, and other personnel on a prompt basis without regard to civil service limitations.12
Subsection (b)(5) specifically concerns support sеrvice contracting, which is the focus of appellee‘s challenge. That section provides:
In the performance of its functions (under the National Space Program) the Administrator (NASA) is authorized
(5) without regard to section 529 of Title 31, to enter into and perform such Contracts, leases, cooperative agreements, or Other transactions as may be necessary in the conduct of its work and on such terms as it may deem appropriate, with any agency or instrumentality of the United States, or with any State, Territory, or possession, or with any political subdivision thereof, or with Any person, firm, association, corporation, or educational institution. To the maximum extent practicable and consistent with the accomplishment of the purpose of this chapter, such contracts, leases, agreements, and other transactions shall be allocated by the Administrator in a manner which will enable small-business concerns to participate equitably and proportionately in the conduct of the work of the Administration . . . .
Paragraph (5) gives the Administrator Broad authority to enter into and perform Contracts, leases, agreements, and other transactions, On such terms and for such periods As he deems appropriate, with Any public or private Agency, firm, educational institution, or other Person. (emphasis added.)14
Indeed, Congress expected that NASA would invoke the participation of private industry and of educational institutions in embarking on the nation‘s space effort. On June 2, 1958, during House consideration of the act, Speaker McCormack, Chairman of the House Select Committee on Astronautics and Space Exploration, emphasized that NASA‘s growth would occur principally through contracts with industry and not through the addition to civil service personnel:
According to NA(S)A witnesses, The contemplated expansion of functions under the new agency will take place largеly by means of contract work rather than through research conducted by the agency itself. At present, the NA(S)A employs approximately 8,000 people. The NA(S)A witnesses estimated that the increase in agency personnel would not be more than several hundred. Even with considerable allowance for error in their estimate, It seems likely that the number of new Federal employees in the near future will be relatively small. In other words, the full benefit of this expending (Sic ) program Will accrue to private enterprise.”
104 Cong.Rec. 9918 (1958) (emphasis added). These remarks had obvious reference to the practices authorized by Subsection (b)(5) and it is the execution of the very policies referred to in Speaker McCormack‘s speech that Lodge 1858 claims violates the statute.
At the same time that Congress enacted the enabling act which compelled NASA to produce a mammoth space effort, “the number of civil service personnel that could be hired was limited due to personnel ceilings imposed within the Federal Civil Service.” Thus, it is not surprising that “support service contracts (were) a way of life at Marshall Space Flight Center from its beginning (in 1960).”15
Because of this background, the personnel ceilings on civil service employees, the urgency for the program as expressed by Congrеss, and the broad contracting authority given to the Administrator, including the direction to favor small business, “NASA and MSFC officials apparently believed they had a mandate in the law to develop a Government/Industry/Education Space team.”16 The result was that NASA and Marshall resorted to support service contracts as the alternative means of overcoming the civil service personnel ceilings.17 This practice was regularly disclosed to Congress in its budget requests18 and the resulting appropriations based thereon are an indication of congressional approval.19 If anything more were needed to approve the practice of using extensive support service contracts, it came in 1971 and 1972 when Congress directed reductions in NASA‘s Civil service work force at the same time that it continued to approve its budget requests for funds to meet its obligations under its support service contracts that were in existence.20
Appellee further argues that subsection (b)(5) is not a license to evade and circumvent subsection (b)(2) (Br. at 44). This begs the question: unless NASA treats the employees of the contractors as subsection (b)(2) appointed employees, subsection (b)(5) is not being used to circumvent subsection (b) (2). Nothing in
No federal agency, including NASA, may award its regular work functions to non-Civil Service employees, through the use of corporate intermediaries, contracts or any other device, without first obtaining specific statutory authority from Congress to exclude such work from the federal classified Civil Service.
Br. at 53 (emphasis omitted). This statement goes much too far. Congress gave NASA a specific, giant task in need of quick fulfillment and broad power to enter into Contracts as necessary for the performance of its work on such terms as the Administrator thought appropriate. This was specific statutory authority. It is true that NASA cannot treat the employees as its own; otherwise, the employees would be required to be appointed under subsection (b) (2). This brings us to the question whether the contractor‘s employees were responsible to the contractor or NASA under the standards we find relevant to that determination. Appellee‘s argument here sheds little light on the basic issue.21
Appellee also argues that “regular civilian work functions” cannot be the subject of support services contracts under subsection (b)(5). Yet aрpellee does not challenge the district court‘s decision that eight of the contracts covering, Inter alia, security, fire protection, medical services, food services, custodial services, and logistic support were Valid subjects of support arrangements. J.A. 495, 497. This not only belies appellee‘s argument, but also demonstrates that the crucial question in this case is not merely what functions the contractors performed but whether NASA treated the other questioned contractor‘s employees as its own employees.
The statute most basic to this narrower question is
For the purpose of this title, “employee“, except as otherwise provided by this section or when specifically modified, means an officer and an individual who is
(1) appointed in the civil serviсe by one of the following acting in an official capacity
(A) the President;
(B) a Member or Members of Congress, or the Congress;
(C) a member of a uniformed service;
(D) an individual who is an employee under this section;
(E) the head of a Government controlled corporation; or
(F) the adjutants general . . . .
(2) engaged in the performance of a Federal function under authority of law or an Executive act; And
(3) subject to the Supervision of an individual named by paragraph (1) of this subsection while engaged in the performance of the duties of his position.
(Emphasis added.) All three of the statute‘s subsections must be satisfied for an individual to be deemed an “employee” within the meaning of the Civil Service laws.
It is critical to observe that of the six Pellerzi criteria,22 only one overlaps with the statute for determining whether a person is an “employee” of the United States, and that is the necessity for Supervision (Pellerzi criterion 6; statute provision 3). “Supervision” is a criterion that in importance far exceeds the others. As used in this context, supervision means control of the individual workman‘s physical conduct, Kelley v. Southern Pacific Co., 419 U.S. 318, 95 S.Ct. 472, 42 L.Ed.2d 498 (1974), not just oversight; “control (of) the individual in the Performance of his work and (of) the Manner in which the work is done . . . is Usually decisive.” Pellerzi Opinion (J.A. 447) (emphasis added). Employees are distinguished from independent contractors most basically by the detail with which the party for whom the work is eventually produced actually supervises the manner and means by which the work is performed; and Degree of control or Supervision is the princiрal element that differentiates employees and independent contractors at common law,23 in the state statutory context,24 and in the context of other federal statutes as well.25 All this is another way of saying that the practice of giving an order for a specific service or article, with the right to reject the finished product or result, is not the type of supervision or control that converts an individual who is otherwise an independent contractor (such as an employee of a contractor) into an employee.
In actual operation, in those instances which come closest to the employee borderline, NASA generally gave specific orders, usually to the company supervisor, for certаin articles and services. “(T)he Contractor (not his employees) were told what to do, when to do it, how it was to be done, the qualification requirements for his key people, how and when to report on his activities, etc.” (J.A. 454). But the control over the performance of such requests and the responsibility for the manner in which they would be carried out was in the contracting party and its supervisors. Thus, the specificity of the requests did not transcend the fact that the actual on-the-spot supervision employed to produce compliance was carried out by the contracting company and its employees. The situation was thus very similar to that in Chicago R.I. & P.R. Co. v. Bond, 240 U.S. 449, 456, 36 S.Ct. 403, 406, 60 L.Ed. 735 (1916) where the contractual arrangement was “not the engagement of a servant submitting to subordination and subject momentarily to superintendence, but of one capable of independent action to be judged by its results.” This was particularly apparent in a great many of the contracts here because a substantial portion of the contractually acquired services which are in question involved scientific, engineering, technical, and other highly skilled or professional personnel who were fully capable of exercising independent judgment in performing their services and were expected to do so. And, by way of contrast, concerning some of the contracts for the more menial services, where substantial independent judgment was not an ordinary factor, and control and supervision could be more easily found in a mere order, the district court agreed with the Civil Service Commission that supervision was nonexistent in the sense intended by the employee standards.26
Without supervision by NASA, the employees of the contractors for the supporting services cannot be viewed as employees for subsection (b)(2) purposes who must be appointed in accordance with the civil service laws. In this case, it cannot be said that the Civil Service Commission‘s decision was in error when on the basis of the facts it found it based its conclusion concerning employee-independent contractor status on the Degree of supervision exercised over the work performed.
The district court did criticize the Commission‘s insistence that all six of the “Pellerzi” standards be met (J.A. 449). Appellee‘s argument that the contractor‘s employees are subsection (b)(2) employees, to the extent it is based on application of the Pellerzi standards, has a facial validity, but it loses its vitality when the activities of the individuals in question are weighed against the all-important sixth standard concerning supervision. For example, had the Commission found that thеse individuals were not in an employer-employee relationship with NASA even where very close supervision was imposed, because, perhaps, one or several of the other Pellerzi standards was not met, its decision might have been subject to more criticism. In this case, however, the Commission‘s insistence that all six Pellerzi standards be met was functionally equivalent to a requirement that only the decisive “supervision” standard be met, since There was no contract among the 32 reviewed where the sixth factor NASA supervision was present. It would have been improper for the district court to have rejected the Commission‘s conclusions simply because it insisted that all six Pellerzi elements coexist. But unless special significance were accorded the critical sixth factor, such an approach would have been equivalent to holding that employee status could be found even in the absence of supervision by the alleged employer. We would disagree generally with such conclusion.
The six elements . . . relate principally to the third statutory criterion concerning supervision of a contractor employee by a Federal officer or employee. If the contract terms permit such supervision, or if in the actual performance of the contract such supervision is conducted, the test is met.
J.A. 1513 (emphasis added). The standard used by the district court is an incomplete expression of the proper standard by which contracts for services as various as those here involved should be tested. Moreover, that standard focuses incorrectly on what the nature of the questioned service “reasonably requires” and ignores the always critical factor of who actually exercises the supervision over the manner and “performance of the duties of (the) position.”28
Additional defects in the standard need not be mentioned because we view the decision in Kelley v. Southern Pacific Co., 419 U.S. 318, 95 S.Ct. 472, 42 L.Ed.2d 498 (1974), as strongly persuasive if not completely controlling on the facts here present. Kelley was an employee of Pacific Motor Trucking Company (PMT), a subsidiary wholly owned by the Southern Pacific Company that operates the Southern Pacific Railroad. The two companies had a contractual relationship covering PMT‘s trucking operations which were operated primarily in conjunction with the railroad operations of its parent company. In accordance with its contract with the railroad, PMT would unload automobiles that had been transported over the rail lines of the Southern Pacific. In the process of such unloading operations, Southern Pacific employees in the area would occasionally consult with PMT employees about the unloading process, but PMT supervisors controlled and directed the actual day-to-day operations.
One day, Kеlley was injured in the process of unloading automobiles. Claiming that his injuries were caused by the negligence of the Southern Pacific Railroad, Kelley sued under the Federal Employees’ Liability Act (FELA) on the alleged ground that he was covered thereby as an employee of the railroad.
The trial court found that Kelley in his work was within the coverage of the FELA. In support of its judgment it asserted that unloading the automobiles was the “railroad‘s responsibility,” that the railroad supplied the unloading ramps and owned the area where PMT employers worked, that the “responsibility for supervision and control of the unloading operation was (the railroad‘s),” and that in effect “PMT employees were agents of the railroad . . . in fulfillment of a non-delegable duty of defendant Southern Pacific Company.” 419 U.S. at 322, 95 S.Ct. at 475. The Court of Appeals reversed and the Supreme Court granted certiorari.
In an opinion by Justice Marshall, the Supreme Court decided that the trial court applied an erroneous legal standard when it held that Kelley was covered by the Federal Employers’ Liability Act because of the “traditional agency relationship” between the railroad and PMT. In its place, the court held that the proper standard required proof of a “master-servant relationship . . . determined by reference to cоmmon-law principles.” It pointed approvingly to section 220(1) of the Restatement (Second) of Agency that defines a servant as “a person employed to perform services in the affairs of another and who with respect to the Physical conduct in the performance of the services is subject to the other‘s control or right to control.” 419 U.S. at 324, 95 S.Ct. at 476 (emphasis added).
IV
The district court found a second error in the Commission‘s test of employee status. The Civil Service Commission made its decision “in accordance with the instructions given by the Office of the U.S. Attorney” (J.A. 515). Those instructions included the following admonition: “with regard to the sixth element, relatively Continuous, close supervision of a substantial number of contractor employees must be present and must be shown to be related to one of the following requirements, ‘(a) to adequately protect the government‘s interest, or (b) to retain control of the function involved, or (c) to retain full personal responsibility for the function supported in a duly authorized Federal officer or employee’ ” (J.A. 515; emphasis added).
The final three specifications of this order are taken verbatim from the Pellerzi Standards. The сontroversy does not concern them. Rather, the district court found no support in the Pellerzi or Mondello opinions for the word “continuous” modifying “supervision” (J.A. 450-51). The Pellerzi opinion indicated employee status when, all else being present, “(t)he inherent nature of the service . . . reasonably requires directly or indirectly, government direction or supervision of contractor employees . . .” (J.A. 352). The Mondello Supplement interpreted the sixth Pellerzi factor to mean “a requirement for close supervision of contractor employees by Government employees” (J.A. 1514). To construe the phrases “reasonably requires . . . supervision” and “a requirement for close supervision” to mean “relatively continuous, close supervision” (emphasis added), is a very natural and proper interpretation. “Close” supervision, standing alone, evokes the implication of Continuity of supervision. And the modifier “relatively” makes the Commission‘s standard unassailable. The validity of the statement is further buttressed by its placement in juxtaposition to the assertion that “sporadic supervision of an individual . . . may be ignored” (J.A. 442; emphasis added).
V
The district court was not required to send this matter to the Civil Service Commission, but it chose to do so in an exercise of its discretion. “Under the doctrine of primary jurisdiction, a court may entertain an action for permanent relief and defer its consideration of the merits until an agency ‘with special competence’ in the field has ruled on the issues . . . . This doctrine has application to the (agency) . . . Even assuming that its function is advisory since it has the special competence and experience that is the life and reason of the primary jurisdiction rule.” Wheelabrator Corp. v. Chafee, 147 U.S.App.D.C. 238, 248, 455 F.2d 1306, 1316 (1971) (emphasis added). “Whether the agency happens to be expert or not, a court should not act upon subject matter that is peculiarly within the agency‘s specialized field without taking into account what the agency has to offer . . . .” K. Davis, 3 Administrative Law Treatise (1958) § 19.01 at 5 (discussing primary jurisdiction). In NLRB v. Hearst Publications, 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170 (1944), the labor board‘s decision on a statutory question admittedly did not come about because of any discretionary exercise of primary jurisdiction. Nevertheless, the Court‘s justification for deferring to the Board, even on a matter purely of law, is instructive here:
Everyday experience in the administration of the statute gives (the Board) familiarity with the circumstances and backgrounds of employment relationships . . . . The experience thus acquired must be brought frequently to bear on the question who is an employee under the Act. Resolving that question . . . “belongs to the usual administrative routine” of the Board. . . .
. . . (T)he Board‘s determination that specified persons are ‘employees’ under this Act is to be accepted if it has ‘warrant in the record’ and a reasonable basis in law.
322 U.S. at 130-31, 64 S.Ct. at 860. Here, it is the Civil Service Commission that possesses the expertise. The district court‘s action in sending the case to the Civil Service Commission rather than an exercise of primary jurisdiction could alternatively be analogized to the appointment of a special master. The time limit given to the Commission for response supports that interpretation of the court‘s action. If the procedure followed was that of appointing a master, however, the district court‘s review is every bit as limited as under the primary jurisdiction theory, for
Here the Civil Service Commission, as noted above, found an absence of supervision in all 32 contracts in dispute. There is substantial support in the record for the Commission‘s conclusions. While the fact that it believed all six Pellerzi standards had to be met in order for an employer-employee relationship to exist was incorrect, this error did not affect the weight of the Commission‘s decision on the critical sixth Pellerzi standard on supervision. Under the cirсumstances of this case, it was error for the court to reject the conclusions of the Commission on the application of the sixth standard to these contracts.
VI
In addition to the foregoing, there are additional grounds for holding that subsection (b)(2) is not controlling here insofar as the contractors’ employees are concerned. As this opinion has already stated, the contractors’ employees have not been shown by appellee to be employees of the United States who must be appointed in accordance with subsection (b)(2) and concomitantly as civil service employees under the civil service laws. This is because subsection (b) (5) validly authorized NASA to enter into separate contracts under which certain services contracted for were performed by employees of the contractor, and in the performance of such contracts NASA did not treat the contractors’ employees in such a manner that they became employees of NASA or the United States.
In urging that we adopt a contrary conclusion particularly in urging us to conclude that contractors’ employees cannot be used to perform the agency‘s work functions in the manner and for the purposes here disclosed appellee effectively reads subsection (b)(5) as though it were contradicted and controlled by subsection (b)(2). Appellee argues that “(t)here is nothing in Section 203(b)(5) of the NASA statute . . . which Repeals Section 203(b)(2) or which authorizes NASA to evade and circumvent Section 203(b)(2) . . .” (Appellee Supp. Br. at 4; emphasis added). This contention is falsely premised on the reasoning that subsection (b)(5) must repeal subsection (b)(2) in order to validate the support service contracts, but such argument fails to give subsection (b)(5) its proper due. It fails to recognize the potential that Congress intended for subsection (b)(5) to assist in the performance of NASA‘s work. Subsection (b)(5) need not “repeal” subsection (b)(2) in order to achieve its separate status. To the extent that it provides for a Specific manner in which NASA may carry out some of its work, it is a specific exemption from the general provisions of subsection (b)(2) and must be recognized as such.
The force of subsection (b)(5) as specifying a separate means, Independent of subsection (b)(2), for performing NASA‘s functions is further strengthened by its location in the statute after subsection (b)(2). The established rule is that if there exists a conflict in the provisions of the same act, the last provision in point of arrangement must control.31 Thus, while subsection (b)(5) does not repeal subsection (b)(2), and only conflicts with it to the extent that it provides for additional authority, it is clear that subsection (b)(5) does provide a separate, alternative, independent means of performing NASA‘s statutory duties which Congress contemplated would be exercised contemporaneously with the authority conferred by subsection (b)(2) in conformance with NASA‘s discretion and to the extent permitted by funds available from the yearly appropriations of Congress.
Finally, the relative utilization of civil service employees and employees of support service contractors at NASA in the years surrounding the reduction-in-force provides conclusive documentation that Congress intended subsection (b)(5) to authorize the support service contracting which is challenged here.32 In the fiscal year 1967 NASA budget hearings regarding the use of support service contract personnel, which were held before the Senate Committee on Aeronautical and Space Sciences, NASA stated that during fiscal year 1965, the average number of Contractor employees working at its centers was about 16,800. NASA stated that this figure would rise to about 22,400 in fiscal year 1966 and to about 24,900 in fiscal year 1967, primarily as a result of the increase in operational activities at the Kennedy Space Center.33 These contractor employees were in addition to NASA‘s civil service personnel Ceilings for fiscal years 1965, 1966, and 1967 of about 33,200, 33,900, and 34,300 respectively.34 Thus, although the number of civil service personnel had bеen estimated to increase by only about 1,100 during those three years,35 the corresponding increase of about 8,100 contractor employees during the same period, estimated to bring the total to 24,900, in excess of the civil service Ceilings was fully disclosed to Congress, and did not evoke Congressional opposition and Congress adopted the appropriations necessary to pay this very substantial number of contractor employees. As noted above, the Congressional policy of favoring support service contracts while cutting back on civil service employment continued after the reduction-in-force in question here.36 This demonstrates that subject support service contracts, entered into pursuant to the authority of subsection (b)(5) to the magnitude that eventually evolved, were fully within the intendment of Congress.
CONCLUSION
For the reasons set forth in this opinion, we find that it was clearly erroneous for the district court to find that 22 of the 32 contracts were invalid In toto and that two others were invalid in part on the ground that persons employed by the contractors under these contracts served in an employer-employee relationship with the United States. We therefore vacate those portions of the Summary Judgment and Order of August 12, 1976 that declared 22 contracts and parts of two others null and void and that declared null and void the 1967 reduction-in-force actions taken by NASA. The portion of the Summary Judgment and Order upholding eight contracts and parts of two others is affirmed. The vacated portions of the judgment are remanded to the district court with instructions to enter judgment for the defendants consistent with this opinion.
Judgment accordingly.
. . .(Emphasis added). Degree of control and direction are crucial factors for differentiating employеes and independent contractors in these state statutory schemes. Under these tests the individual workers were employees of the independent service contractors.25
This finding referred to the plant operation support services at Michond Assembly Facility under Contracts Nos. NAS 8-14017, 8-26887. Such services included: custodial, plant engineering and maintenance, transportation, supplies, food, security and fire protection. Also, of a non-menial character; photographic, medical, telecommunications and documentation (J.A. 494-96). A similar result was reached with respect to the Global Associates Contract No. NAS 8-26896 for facility operating services (J.A. 489, 492-94) and concerning Contracts Nos. NAS 8-14110 and 8-21808 insofar as they contracted for custodial, refuse collection, laundry, and photo repair (J.A. 481-88)26
J.A. 44927
However inclusive may be the general language of a statute, it “will not be held to apply to a matter specifically dealt with in another part of the same enactment. . . . Specific terms prevail over the general in the same or another statute which otherwise might be controlling.” Ginsberg & Sons v. Popkin, Supra29
See text at --- of --- U.S.App.D.C., 502 of 580 F.2d Supra30
The Congressional intent to authorize NASA to enter into support service contracts is evident from the authorization laws and appropriations which it enacted. For example, in P.L. 91-126 enactеd on Nov. 26, 1969, Congress clearly authorized “support services contracts” to be funded from the ” ‘Research and program management’ appropriations” (83 Stat. 197) and thereafter appropriated $678,725,000 to NASA for “Research and Program Management” with the proviso “(t)hat Contracts may be entered into under this appropriation For maintenance and operation of facilities, and for other services, to be provided during the next fiscal year.” (83 Stat. 230; emphasis added). This same pattern of authorization and appropriation continued. E. g., 84 Stat. 370, 1449; 85 Stat. 174, 277; 86 Stat. 159, 545. In prior years, going back as far as the Act of June 28, 1965, the authorization for “Administrative operations” included “support services contracts” and the appropriation was similarly worded. E. g., 79 Stat. 193, 534; 80 Stat. 337, 675; 81 Stat. 169, 385; 82 Stat. 281, 94531
The Report to Congress by the Comptroller General dated June 9, 1967 stated Inter alia :
NASA, consistent with its policy, has relied heavily over the years on the capabilities of industry to carry out its activities. In response to queries by the Senate Committee on Aeronautical and Space Sciences during the fiscal year 1967 NASA budget authorization hearings regarding the use of contract personnel, NASA stated that, during fiscal year 1965, the average number of contractor personnel working at its Centers was about 16,800. NASA stated also that thе average number of such personnel would rise to about 22,400 in fiscal year 1966 and to about 24,900 in fiscal year 1967 primarily as a result of the increase in operational activities at the Kennedy Space Center. NASA‘s civil service personnel ceilings for fiscal years 1965, 1966, and 1967 were about 33,200, 33,900, and 34,300, respectively. Thus, although the number of civil service personnel was estimated to increase by about 1,100 during these fiscal years, the corresponding estimated increase of about 8,100 contractor personnel during the same period contemplated a continuing and extensive use of contractor personnel rather than civil service personnel to carry out its activities.
Comptroller General of the United States, Report to the Congress on Potential Savings Available Through Use of Civil Service Rather than Contractor-furnished Employees for Certain Support Services (June, 1967) (J.A. 266-67).32
Id. at J.A. 267. In those three years, 1965, 1966, and 1967, NASA hired civil service employees up to and slightly beyond those ceilings: In 1965, 1966, and 1967, NASA hired 34,049, 35,708, and 35,860 civil service employees respectively. United States Department of Commerce, Bureau of the Census, Statistical Abstract of the United States, No. 569, at 398 (1968)33
The actual increase in civil service employees in those three years was slightly over 1,800, which is about 700 more than the estimate referred to in the text34
See note 20 Supra35
It is self evident from the plain language of the statutes pointed to by appellants that the use of contractors’ employees to perform necessary work for NASA did not involve any violation of either
36(a) No officer or employee of the United States shall make or authorize an expenditure from or create or authorize an obligation under any appropriation or fund in excess of the amount available therein; nor shall any such officer or employee involve the Government in any contract or other obligation, for the payment of money for any purpose, in advance of appropriations made for such purpose, unless such contract or obligation is authorized by law.
(b) No officer or employee of the United States shall accept voluntary service for the United States or employ personal service in excess of that authorized by law, except in cases of emergency involving the safety of human life or the protection of
Notes
The Labor Management Relations Act of 1947 defines “employees,” specifying that the term is not to include “any individual having the status of an independent contractor.”
Circuit Courts of Appeals, in construing the labor act, have laid strеss on the degree of supervision being exercised. See, e. g., Carnation Co. v. NLRB, 429 F.2d 1130, 1134 (9th Cir. 1970) (despite provisions for economic sanctions, the fact that “there is no attempt to supervise the details of the work” bars employee status); NLRB v. A.S. Abell Co., 327 F.2d 1, 3 (4th Cir. 1964): “(A) nalysis of the degree of control exercised by the publishers over the manner and means of performance by the carriers furnishes the basic means of discerning whether the carriers are independent contractors or employees.”
J.A. 449
However inclusive may be the general language of a statute, it “will not be held to apply to a matter specifically dealt with in another part of the same enactment. . . . Specific terms prevail over the general in the same or another statute which otherwise might be controlling.” Ginsberg & Sons v. Popkin, 285 U.S. 204, 208, 52 S.Ct. 322, 323, 76 L.Ed. 704
MacEvoy Co. v. United States, 322 U.S. 102, 107, 64 S.Ct. 890, 88 L.Ed. 1163 (1944).
Courts have relied on this principle on many occasions. E. g., Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 228-29, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957); Missouri v. Ross, 299 U.S. 72, 76, 57 S.Ct. 60, 81 L.Ed. 46 (1936); Ginsberg & Sons v. Popkin, 285 U.S. 204, 208, 52 S.Ct. 322, 76 L.Ed. 704 (1932); Kepner v. United States, 195 U.S. 100, 125, 24 S.Ct. 797, 49 L.Ed. 114 (1904); United States v. Chase, 135 U.S. 255, 260, 10 S.Ct. 756, 34 L.Ed. 117 (1890); United States v. Jones, 131 U.S. 1, 19, 9 S.Ct. 669, 33 L.Ed. 90 (1889); International Longshoremen‘s and Warehousemen‘s Union v. Wirtz, 170 F.2d 183, 187 (9th Cir. 1948); Cert. denied, 336 U.S. 919, 69 S.Ct. 641, 93 L.Ed. 1082 (1949); Detrich v. Howard, 155 F.2d 307, 309 (7th Cir. 1946); La Page v. United States, 146 F.2d 536, 538 (8th Cir. 1945); United States v. City of Chester, 144 F.2d 415, 421 (3d Cir. 1944); Callahan v. United States, 74 U.S.App.D.C. 281, 282, 122 F.2d 216, 217 (1941). 2A C. Sands, Sutherland Statutory Construction, §§ 47.16, 47.17, at 101-09 (4th ed. 1973).
See text at --- of --- U.S.App.D.C., 502 of 580 F.2d Supra
E. g., Buttfield v. Stranahan, 192 U.S. 470, 494-96, 24 S.Ct. 349, 48 L.Ed. 525 (1904); Inter-Continental Promotions, Inc. v. MacDonald, 367 F.2d 293, 301 (5th Cir. 1966), Cert. denied, 393 U.S. 834, 89 S.Ct. 105, 21 L.Ed.2d 104 (1968); Hudson Motor Car Co. v. Hertz, 121 F.2d 326, 330 (6th Cir.), Cert. denied, 314 U.S. 696, 62 S.Ct. 413, 86 L.Ed. 557 (1941); United States v. Updike, 25 F.2d 746, 752 (D.C.Neb.1928), Aff‘d, 32 F.2d 1 (8th Cir. 1929), Aff‘d, 281 U.S. 489, 50 S.Ct. 367, 74 L.Ed. 984 (1930); United States v. Daniels, 279 F. 844, 849 (2d Cir. 1922); Great Northern R. Co. v. United States, 155 F. 945, 959 (8th Cir. 1907), Aff‘d, 208 U.S. 452, 28 S.Ct. 313, 52 L.Ed. 567 (1908); United States v. Jackson, 143 F. 783, 787 (9th Cir. 1906); In re Richards, 96 F. 935, 939 (7th Cir. 1899); Skeeles v. United States, 95 F.Supp. 242, 247, 118 Ct.Cl. 362, 367, Cert. denied, 341 U.S. 948, 71 S.Ct. 1014, 95 L.Ed. 1371 (1951); In re Jacobs, 7 F.Supp. 749, 752 (N.D.Ill.), Appeal dismissed, 73 F.2d 1002 (7th Cir. 1934); Alabama State Bd. of Health v. Chambers Cty., 335 So.2d 653, 655 (Ala.1976); CableVision, Inc. v. Freeman, 324 So.2d 149, 152-53 (Fla.App.1975), Appeal dismissed, 336 So.2d 1180 (Fla.1976), Appeal dismissed, 429 U.S. 1032, 97 S.Ct. 723, 50 L.Ed.2d 743 (1977); In re Ashworth, 291 Ala. 723, 728, 287 So.2d 843, 847 (1974); Bible & Godwin Constr. Co. v. Faener Corp., 504 S.W.2d 370, 372 (Tenn.1974); State v. Crenshaw, 287 Ala. 139, 142, 249 So.2d 622, 624 (1971); Wilkins v. Woolf, 281 Ala. 693, 701, 208 So.2d 74, 80 (1968); State v. Boca Raton, 172 So.2d 230, 233 (Fla.1965); Schneider v. Forcier, 67 Wash.2d 161, 164, 406 P.2d 935, 937 (1965); Fink v. Cold Spring Granite Co., 262 Minn. 393, 398, 115 N.W.2d 22, 26 (1962); Stoller v. State, 171 Neb. 93, 98, 105 N.W.2d 852, 856-57 (1960); State v. Hialeah, 109 So.2d 368, 370 (Fla.1959); Town of Homecroft v. Macbeth, 238 Ind. 57, 63, 148 N.E.2d 563, 567 (1958); Gilbertson v. Culinary Alliance & Bartenders’ Union, 204 Or. 326, 336, 282 P.2d 632, 638 (1955); City of Petaluma v. Pacific Tel. & Tel. Co., 44 Cal.2d 284, 289, 282 P.2d 43, 46 (1955); Application of Oklahoma Turnpike Authority, 206 Okl. 617, 624, 246 P.2d 327, 331 (1952); Ogle v. Tennessee Eastman Corp., 185 Tenn. 527, 529, 206 S.W.2d 909, 910 (1947); Hartford Acci. & Indem. Co. v. City of Tulare, 30 Cal.2d 832, 836, 186 P.2d 121, 123 (1947); Johnson v. State, 157 Fla. 685, 693, 27 So.2d 276, 282 (1946); Cert. denied, 329 U.S. 799, 67 S.Ct. 491, 91 L.Ed. 683 (1947); Woodroof v. City of Nashville, 183 Tenn. 483, 486, 192 S.W.2d 1013, 1015 (1946); Tyler v. Huiet, 199 Ga. 845, 849, 36 S.E.2d 358, 361 (1945); People v. Moroney, 24 Cal.2d 638, 642, 150 P.2d 888, 891 (1944); Feldman v. South Carolina Tax Comm., 203 S.C. 49, 52, 26 S.E.2d 22, 24 (1943); Jacoby v. Missouri Valley Drainage Dist., 349 Mo. 818, 830, 163 S.W.2d 930, 938 (1942); Commonwealth v. Chester Cty. Light & Power Co., 339 Pa. 97, 100, 14 A.2d 314, 316 (1940); Ebbert v. Tucker, 123 W.Va. 385, 392, 15 S.E.2d 583, 587 (1941); Darby v. De Loach, 190 Ga. 499, 501, 9 S.E.2d 626, 627 (1940); Hudson v. State Compensation Commr., 121 W.Va. 461, 465, 5 S.E.2d 108, 111 (1939); Sealed Power Corp. v. Stokes, 174 Tenn. 493, 498, 127 S.W.2d 114, 117 (1939); Markel v. Glassmeyer, 137 Neb. 243, 246, 288 N.W. 821, 823 (1939); Enyeart v. City of Lincoln, 136 Neb. 146, 150, 285 N.W. 314, 317 (1939); Gentry v. Blinn, 184 Okl. 9, 12, 84 P.2d 27, 29 (1938); Chilen v. Commercial Casualty Ins. Co., 135 Neb. 619, 626, 283 N.W. 366, 370 (1938); Burton v. Denver, 99 Colo. 207, 211, 61 P.2d 856, 858 (1936); Southern R. Co. v. Grigsby, 155 Tenn. 285, 288, 292 S.W. 3, 5 (1927); Coker v. Wilkinson, 142 Miss. 1, 2, 106 So. 886, 887 (1926); State v. Tullock, 72 Mont. 482, 484, 234 P. 277, 278 (1925); State v. Burchfield Bros., 211 Ala. 30, 32, 99 So. 198, 200-01 (1924); Board of Drainage Commrs. v. Carey, 30 Ga.App. 378, 378, 118 S.E. 445, 445 (1923); Richardson v. Browning, 61 Cal.App. 110, 113, 214 P. 281, 283 (1923); State v. Industrial Comm. of Ohio, 105 Ohio St. 103, 106, 136 N.E. 896, 898 (1922); State v. Public Service Comm., 101 Wash. 601, 606, 172 P. 890, 893 (1918); Davis v. State, 16 Ala.App. 397, 399, 78 So. 313, 314 (1918); State v. Gideon, 273 Mo. 79, 81, 199 S.W. 948, 949 (1917); Board of Park Commrs. v. City of Nashville, 134 Tenn. 612, 620, 185 S.W. 694, 699 (1916); Board of Education v. Tyler County Court, 77 W.Va. 523, 527, 87 S.E. 870, 872 (1915); Cox v. Timm, 182 Ind. 7, 12, 105 N.E. 479, 482 (1914); Woodring v. McCaslin, 182 Ind. 134, 137, 104 N.E. 759, 761 (1914); Curless v. Watson, 54 Ind.App. 110, 118, 100 N.E. 576, 580 (1913); State v. St. Louis, 241 Mo. 231, 241, 145 S.W. 801, 807 (1912); Gish v. Shaver, 140 Ky. 647, 649, 131 S.W. 515, 516-17 (1910); Ex parte Smith, 33 Nev. 466, 474, 111 P. 930, 935 (1910); Shutt v. State, 173 Ind. 689, 691, 89 N.E. 6, 7 (1909); Peterson v. People, 129 Ill.App. 55, 57 (1906); Harvey Coal & Coke Co. v. Dillon, 59 W.Va. 605, 625, 53 S.E. 928, 940 (1905); Joseph Speidel Grocery Co. v. Warder, 56 W.Va. 602, 605, 49 S.E. 534, 536 (1904); Hand v. Stapleton, 135 Ala. 156, 158, 33 So. 689, 690 (1902); Omaha Real Estate & Trust Co. v. Reiter, 47 Neb. 592, 599, 66 N.W. 658, 663 (1896); Ex parte Hewlett, 22 Nev. 333, 335, 40 P. 96, 97-98 (1895); Howard v. Bangor & A. R. Co., 86 Me. 387, 388, 29 A. 1101, 1102 (1894); People v. Dobbins, 73 Cal. 257, 259, 14 P. 860, 861 (1887); In re Yick Wo, 68 Cal. 294, 302, 9 P. 139, 145 (1885), Rev‘d on other grounds, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Branagan v. Dulaney, 8 Colo. 408, 411, 8 P. 669, 671 (1885) (overruled on ground that statutes not in conflict in Calhoun Gold-Min. Co. v. Ajax Gold-Min. Co., 27 Colo. 1, 59 P. 607 (1899), Aff‘d, 182 U.S. 499, 21 S.Ct. 885, 45 L.Ed. 1200 (1901)); Albertson v. State, 9 Neb. 429, 439, 2 N.W. 742, 748 (1879); See Stansell v. Fowler, 113 Ga.App. 377, 381, 147 S.E.2d 793, 796 (1966); Sharer v. Hotel Corp. of America, 144 So.2d 813, 816-17 (Fla.1962); Jolly v. Atlantic Greyhound Corp., 207 S.C. 1, 4, 35 S.E.2d 42, 44-5 (1945); State v. Ayer, 9 Wash.2d 188, 193, 114 P.2d 168, 171 (1941); Stiers v. Vrooman, 234 Mo.App. 161, 168, 115 S.W.2d 84, 89 (1938); Woodbury v. Wilson, 133 Me. 329, 332, 117 A. 708, 710 (1935); Marengo County v. Wilcox County, 215 Ala. 640, 643, 112 So. 243, 245 (1927); State v. Board оf Commrs., 56 Mont. 355, 358, 185 P. 147, 149 (1919); Commercial Trust Co. v. Hudson County Bd. of Taxation, 86 N.J.L. 424, 430, 92 A. 263, 267 Aff‘d, 87 N.J.L. 179, 92 A. 799 (1914); Calhoun Gold-Min. Co. v. Ajax Gold-Min. Co., 27 Colo. 1, 10, 59 P. 607, 613 (1899), Aff‘d, 182 U.S. 499, 21 S.Ct. 885, 45 L.Ed. 1200 (1901)
The Congressional intent to authorize NASA to enter into support service contracts is evident from the authorization laws and appropriations which it enacted. For example, in P.L. 91-126 enacted on Nov. 26, 1969, Congress clearly authorized “support services contracts” to be funded from the ” ‘Research and program management’ appropriations” (83 Stat. 197) and thereafter appropriated $678,725,000 to NASA for “Research and Program Management” with the proviso “(t)hat Contracts may be entered into under this appropriation For maintenance and operation of facilities, and for other services, to be provided during the next fiscal year.” (83 Stat. 230; emphasis added). This same pattern of authorization and appropriation continued. E. g., 84 Stat. 370, 1449; 85 Stat. 174, 277; 86 Stat. 159, 545. In prior years, going back as far as the Act of June 28, 1965, the authorization for “Administrative operations” included “support services contracts” and the appropriation was similarly worded. E. g., 79 Stat. 193, 534; 80 Stat. 337, 675; 81 Stat. 169, 385; 82 Stat. 281, 945
The Report to Congress by the Comptroller General dated June 9, 1967 stated Inter alia :
NASA, consistent with its policy, has relied heavily over the years on the capabilities of industry to carry out its activities. In response to queries by the Senate Committee on Aeronautical and Space Sciences during the fiscal year 1967 NASA budget authorization hearings regarding the use of contract personnel, NASA stated that, during fiscal year 1965, the average number of contractor personnel working at its Centers was about 16,800. NASA stated also that the average number of such personnel would rise to about 22,400 in fiscal year 1966 and to about 24,900 in fiscal year 1967 primarily as a result of the increase in operational activities at the Kennedy Space Center. NASA‘s civil service personnel ceilings for fiscal years 1965, 1966, and 1967 were about 33,200, 33,900, and 34,300, respectively. Thus, although the number of civil service personnel was estimated to increase by about 1,100 during these fiscal years, the corresponding estimated increase of about 8,100 contractor personnel during the same period contemplated a continuing and extensive use of contractor personnel rather than civil service personnel to carry out its activities.
Comptroller General of the United States, Report to the Congress on Potential Savings Available Through Use of Civil Service Rather than Contractor-furnished Employees for Certain Support Services (June, 1967) (J.A. 266-67).
Id. at J.A. 267. In those three years, 1965, 1966, and 1967, NASA hired civil service employees up to and slightly beyond those ceilings: In 1965, 1966, and 1967, NASA hired 34,049, 35,708, and 35,860 civil service employees respectively. United States Department of Commerce, Bureau of the Census, Statistical Abstract of the United States, No. 569, at 398 (1968)
The actual increase in civil service employees in those three years was slightly over 1,800, which is about 700 more than the estimate referred to in the text
See note 20 Supra
It is self evident from the plain language of the statutes pointed to by appellants that the use of contractors’ employees to perform necessary work for NASA did not involve any violation of either
(a) No officer or employee of the United States shall make or authorize an expenditure from or create or authorize an obligation under any appropriation or fund in excess of the amount available therein; nor shall any such officer or employee involve the Government in any contract or other obligation, for the payment of money for any purpose, in advance of appropriations made for such purpose, unless such contract or obligation is authorized by law.
(b) No officer or employee of the United States shall accept voluntary service for the United States or employ personal service in excess of that authorized by law, except in cases of emergency involving the safety of human life or the protection of