Anthony M. Rossi et al., Appellants, v. Harold Brown, Secretary of Defense et al., Appellees, 642 F.2d 553 (D.C. Cir. 1980)

Section 106 of Public Law No. 92-129 prohibits discrimination against United States citizens in the employment of civilian personnel on United States military bases overseas, unless such discrimination is permitted by "treaty."¹  This case presents the narrow question of whether the Base Labor Agreement of 1968 between the United States and the Republic of the Philippines,²  which provides for preferential hiring of local nationals at United States military bases in the Philippines, is a "treaty" within the meaning of section 106.

Resolution of this question turns on whether the word "treaty" set forth in the statute is intended to refer only to international agreements entered into by the President with the advice and consent of two-thirds of the Senate or whether it refers in a broader sense to any international agreement entered into between the United States and the governments of other nations. The district court concluded that the latter interpretation was correct and accordingly entered summary judgment for the Government.³  We reverse, finding on the basis of the plain language of the statute and the legislative history that the term "treaty" was used in the sense set forth in article II of the Constitution-that is, an international agreement made by the President with the advice and consent of two-thirds of the Senate.

The essential facts are not in dispute; we review them briefly here.⁴ 

Article 1 of the Base Labor Agreement of 27 May 1968 between the United States Government and the Republic of the Philippines provides:

The United States Armed Forces in the Philippines shall fill the needs for civilian employment by employing Filipino citizens, except when the needed skills are found, in consultation with the Philippine Department of Labor, not to be locally available, or when otherwise necessary for reasons of security or special management needs, in which cases United States nationals may be employed.⁵ 

In March 1978 four of appellants, who are United States citizens residing in the Philippines, were informed that pursuant to this agreement their positions as gameroom managers at the United States Naval Station, Subic Bay, in the Republic of the Philippines, thereafter would be filled only by Philippine citizens. Appellants subsequently filed an administrative complaint with an Equal Employment Opportunity Counselor challenging the validity of this action.

After failing to prevail at the administrative level, appellants on 13 December 1978 filed a complaint in the United States District Court alleging that the provision set forth in the Base Labor Agreement for hiring Filipino citizens in preference to United States citizens plainly contradicts section 106, Public Law 92-129 (Hughes-Schweiker amendment).⁶  Section 106 provides in pertinent part:

Unless prohibited by treaty, no person shall be discriminated against by the Department of Defense or by any officer or employee thereof, in the employment of civilian personnel at any facility or installation operated by the Department of Defense in any foreign country because such person is a citizen of the United States or is a dependent of a member of the Armed Forces of the United States.⁷ 

Whether the preferential hiring mandate of the Base Labor Agreement is nullified by the qualified ban on employment discrimination against United States citizens set forth in section 106 necessarily depends upon the construction accorded to the word "treaty." Appellants contended below that Congress used the word "treaty" in section 106 in the sense set forth in article II of the Constitution: an international agreement made by the President with the advice and consent of two-thirds of the Senate. Under this construction, the parties agree, the Base Labor Agreement is not a treaty. The President never submitted the agreement to the Senate for ratification. Rather, it was negotiated by the President pursuant to a congressional authorization of 1944 to use "such means as he (the President) finds appropriate" to acquire and retain military bases in the Philippines.⁸  The district court, however, agreed with the Government's contention that Congress intended the scope of the term "treaty" to encompass any binding agreement entered into between the United States and other nations. Accordingly, the court held that the Base Labor Agreement of 1968 was a "treaty" for purposes of section 106.

We reverse. Customary usage of the term "treaty" in the United States and the legislative history of section 106 persuade us of the validity of appellants' position.

Under principles of international law, the word "treaty" ordinarily is used to refer to "an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation."⁹  The designation of "treaty" under international law thus encompasses within its scope all binding agreements entered into between nations regardless of the manner by which these agreements are brought into force.

Under the United States Constitution, the term "treaty" has a more specific and restricted meaning. Article II, section 2, clause 2 of the Constitution provides that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur."¹⁰ It is without question that the President may enter into binding agreements with other nations without the advice and consent of the Senate,¹¹  and these types of agreements commonly are called "executive agreements."¹²  Executive agreements are "treaties" under established canons of international law, but not under article II of the Constitution.

This distinction between treaties and other forms of international agreements is followed in the draft Restatement of the Foreign Relations Law of the United States. Section 302 of the Restatement provides:

§ 302. Definitions: Law of the United States

(a) "Treaty" means an international agreement made by the President with the advice and consent of the Senate, two-thirds of the Senators present concurring.

(b) Other international agreements, sometimes collectively referred to as "international agreements other than treaties," include "executive agreements pursuant to treaty," "Congressional-executive agreements (i. e., executive agreements pursuant to congressional authorization) and "sole executive agreements."¹³ 

Thus under United States law, "treaties" normally are thought of as one specific category of international agreements requiring a particular procedure and having a particular status. According to this usage, the Base Labor Agreement at issue is an executive agreement, or more specifically, a "Congressional-executive agreement"¹⁴ -that is, an international compact concluded by the President pursuant to congressional authorization to use "such means as . . . appropriate" to acquire and retain military bases in the Philippines-but not a "treaty."

In declining to apply this interpretation to section 106, the district court in part relied upon B. Altman & Co. v. United States.¹⁵  In that case the Supreme Court construed the word "treaty" in the Circuit Courts of Appeals Act of 1891, which authorized a direct appeal to the Court in cases involving "the validity or construction of any treaty,"¹⁶  to encompass all international agreements regardless of the manner by which these agreements were brought into force. The Court relied upon the intent of Congress in establishing the provision: Congress deemed questions involving the interpretation of "treaties" to be of sufficient importance to justify direct review to the Court,¹⁷  and the Court perceived no need to distinguish between treaties in the article II sense and other international agreements on that basis. All international compacts entailed binding rights and obligations, the construction of which could have significant bearing on this nation's relations with other nations.¹⁸ 

Thus although the term "treaty" under United States law normally connotes an agreement requiring the ratification of the Senate under article II of the Constitution, Altman indicates that it does not invariably carry such a meaning.¹⁹  The meaning to be attributed to the word "treaty" ultimately depends upon the intent of Congress in enacting the particular provision in which the term appears. We move, then, to an examination of the purpose underlying section 106.

The legislative history of section 106 is not extensive, but the purpose of the section clearly is set forth in both the Senate and Conference Committee Reports. The Conference Report, for instance, provides:

The Senate version (of the bill) contained a provision prohibiting job discrimination against American citizens and their dependents in hiring on United States military bases in any foreign country.

The purpose of the Senate provision is to correct a situation which exists at some foreign bases, primarily in Europe, where discrimination in favor of local nationals and against American dependents in employment has contributed to conditions of hardship for families of American enlisted men whose dependents are effectively prevented from obtaining employment.²⁰ 

Concerned with the economic plight of American enlisted personnel and their dependents, Congress thus sought to eliminate the discrimination barrier preventing United States dependents from obtaining civilian positions on overseas military bases, unless such barrier expressly were authorized by "treaty."²¹ 

After examining the legislative history and finding no explicit definition of the term "treaty," the district court was persuaded that Congress intended to eliminate discriminatory practices against American citizens arising only from ad hoc decisionmaking of individual commanders to give preference to local nationals and not from any international obligation on the part of the United States to hire local nationals; thus the district court interpreted the treaty exception to encompass all international agreements.

The court primarily based its conclusion upon the extended comments of Senator Schweiker, a sponsor of the amendment, concerning the policy of the commanding general of the Army Exchange System in Europe. The commanding officer in question issued a memorandum directing exchange system employees to hire local nationals rather than United States dependents or tourists because of the allegedly higher wage costs and higher turnover rates for United States citizens.²²  Decrying the general's action, Senator Schweiker stated at one point during the debates:

I have never heard of anything so ridiculous in my life. We actually send our GI's to Europe at poverty wages. We do not pay to send the wives there. They (the GI's) get over there, and if they do bring their wives at their own expense, the wives cannot even go to the Army Exchange Service and get a job, because a general has sent out a memorandum that says we are going to give those jobs to the nationals of the countries involved.

How ridiculous can one policy be?²³ 

The court considered these and other similar comments on the commanding general's memorandum²⁴  to constitute the only significant discussion of section 106. The district court thus concluded that while the legislative history was not unambiguous, it credibly could be argued that "Congress had in mind only those instances of discrimination which resulted from the caprice of individual officers."²⁵ 

We think that this is a constrained and erroneous view of congressional intent. First we note that the memorandum from the commanding general of the Army Exchange System was the only example referred to in the record of an officer issuing a mandate to discriminate against United States citizens in employment. And the debates later indicate that the Army had taken steps to ensure that this particular memorandum was rescinded.²⁶  While Congress undoubtedly may have wished to prevent situations of this kind from arising in the future, that the particular problem referred to by Senator Schweiker was already being resolved, at least suggests that Congress by enacting section 106 had more in mind than just "the caprice of individual officers." Further scrutiny of the legislative record confirms this supposition.

At the time section 106 was being considered, twelve international agreements were in effect providing for preferential hiring of local nationals on United States military bases. None of these agreements had been submitted to the Senate for ratification.²⁷  In discussing the economic hardships facing American servicemen and their families, Senator Hughes, the other sponsor of the amendment, specifically referred to these agreements: "(T)hey (dependents of enlisted personnel) are denied the opportunity to work on overseas bases, by agreement with the countries in which they are located, and are forced to live in poverty."²⁸  Although the evidence is not extensive we take this statement on the part of a cosponsor of the amendment to be an unmistakable indication that Congress intended to abrogate those portions of the existing executive agreements providing for preferential hiring of local nationals.²⁹ 

Thus we think that Congress sought to eliminate discrimination against American citizens owing not just to the ad hoc decisionmaking of particular commanders, but also owing to executive agreements between the United States and other countries providing for preferential hiring of local nationals. And consistent with this purpose, Congress could only have intended the "treaty" exception to include an agreement made by the President with the advice and consent of two-thirds of the Senate.³⁰ 

The district court felt constrained to apply a broad construction to the word "treaty" in section 106 in part because the interpretation urged by appellants presumably would invalidate the preferential hiring provisions of fourteen international agreements entered into by the President without the advice and consent of the Senate.³¹  Because these agreements were entered into "with the understanding that the hiring of local nationals when possible would be part of the quid pro quo for the retention by the United States of military bases in the host country,"³²  the court was concerned that abrogation of the preferential hiring provisions would have uncertain repercussions in the conduct of foreign affairs. While we understand the district court's concern, after examining the legislative history we are convinced that Congress was aware of the existence of international agreements providing for preferential hiring of local nationals, and that this was exactly what Congress intended to nullify. We must not overlook the fact that Congress had not been consulted on the agreements.

We might also add that legislation enacted contemporaneously with section 106 supports our conclusion that Congress intended a clear distinction between treaties requiring the ratification of the Senate and other forms of international agreements. In particular, the Case Act makes such a distinction, providing that the executive branch "shall transmit to the Congress the text of any international agreement, other than a treaty, to which the United States is a party as soon as practicable after such agreement has entered into force with respect to the United States."³³ 

The district court declined to read section 106 in pari materia with the Case Act on the ground that the statutes did not deal with the same subject matter.³⁴  Although the general subject matter treated in the two enactments is not the same, Congress used precisely the same word in both, suggesting at least that if Congress had intended a more expansive scope for the exception to the ban on discrimination in section 106, it easily could have chosen the term "international agreement" rather than the word "treaty." Moreover we think a similar concern may have been present in both statutes. As a check on the President's power, Congress, in the Case Act, sought to ensure that the legislative branch received timely notice of all international agreements.³⁵  By enacting section 106, we think that Congress also wanted to exercise some control over whether United States citizens would be discriminated against in the employment of civilian personnel on overseas military bases. We recognize that the usage in contemporaneous legislation is not dispositive in this case; still, we think it weighs in favor of the view that Congress also intended the term "treaty" in section 106 to mean an agreement made by the President with the advice and consent of two-thirds of the Senate.

In conclusion, we are persuaded that the word "treaty" in section 106 was used in the sense set forth in article II of the Constitution an international agreement concluded by the President with the advice and consent of two-thirds of the Senate. This construction is consistent with the terminology normally used under United States law. It also comports with congressional intent to alleviate the economic plight of United States military personnel and their dependents; if we were otherwise to construe the term to encompass all international agreements, the exception to the ban on discrimination virtually would engulf the general rule.

Thus we find that the Base Labor Agreement of 27 May 1968 is not a "treaty" for purposes of section 106, and the provision for preferential hiring set forth in article I of the agreement accordingly is invalidated.³⁶  We therefore reverse and remand to the district court for further proceedings not inconsistent with this opinion.

So ordered.