actions of DoD, as lead agency, and the Veterans Administration, as an agency applying the new schedules with the pay cap issued by DoD, were invalid in that neither agency in any way exercised its discretion by making an independent evaluation of whether the 5.5 percent ceiling could be imposed "consistent with the public interest."
In so arguing, plaintiffs in essence ask the Court to determine not only whose prerogative it was to exercise the discretion inherent in a finding that a given wage rate is "consistent with the public interest" but also whether that individual or entity indeed did so in this instance. Plaintiffs assert that the statute places the responsibility for any discretionary modification of the results of the wage survey only with the lead agency, here DoD, and with an agency, such as the Veterans Administration, that applies the wage schedule issued by the lead agency. In this instance, plaintiffs contend, it is obvious from defendant DoD's response to certain interrogatories that neither body made the proper findings prior to implementing the pay cap, but instead simply relied on the President's determination, as embodied in OPM's Federal Personnel Manual Bulletin 532-31, that it was consistent with the public interest that all salary increases be limited to 5.5 percent.
The Court is unable to agree with plaintiffs' analysis. As has already been pointed out in this case and in National Federation of Federal Employees, Local 1622 v. Brown, the opening passages of both section 5341 and section 5343 indicate the congressional desire that any wage schedule that is promulgated following a wage survey be "consistent with the public interest." Yet, an examination of the language of these two sections, and indeed, of the language of the entire enactment dealing with prevailing wage rate employees, fails to reveal any intent on the part of Congress to place within the hands of the lead agency or the agency applying the final wage schedule the sole authority for deciding what is "consistent with the public interest."
Congress clearly did preclude agencies, such as the Veterans Administration, that are charged with implementing the wage schedules issued by the lead agency from modifying those schedules by mandating such agencies "shall apply . . . the wage schedules and rates established by the lead agency." 5 U.S.C. § 5343(a)(4) (1976). In contrast, the lead agency is directed to "conduct wage surveys, analyze wage survey data, and Develop and establish appropriate wage schedules and rates." 5 U.S.C. § 5343(a)(3) (1976) (emphasis supplied). While the statutory authorization to "develop" the appropriate wage schedules appears sufficiently broad to allow the lead agency to exercise its discretion to modify the results of the wage survey in arriving at a final wage schedule "consistent with the public interest," it neither specifically places the authority for making such a decision solely with the lead agency nor relieves the lead agency of the duty to follow the directions of any individual or entity possessing superior authority to make a policy decision with regard to what wage rate would be consistent with the public interest.
In this instance, putting aside the fact that DoD, as an executive department, normally would be required to implement any presidential policy directive absent some explicit, legally binding authority to the contrary, See Myers v. United States, 272 U.S. 52, 135, 164-65, 47 S. Ct. 21, 71 L. Ed. 160 (1926); 10 U.S.C. §§ 131, 133(b) (1976); W. Gellhorn & C. Byse, Administrative Law 133 (6th ed. 1974); B. Schwartz, Administrative Law § 6, at 15-16 (1976), DoD was required by section 5343(a)(3) to follow any OPM regulations, such as Federal Personnel Manual Bulletin 532-31 prescribing "practices and procedures for . . . developing and establishing wage schedules and rates," 5 U.S.C. § 5343(c) (1976). As its answer to plaintiffs' interrogatories indicates, it did just that. See note 7 Supra. Further, the OPM's decision to formulate such a regulation as a result of the President's directive was certainly a proper one, both in terms of OPM's responsibility to aid the President, as Chief Executive, in implementing his policy decision relating to the pay of federal civilian employees, See 5 U.S.C.A. § 1103 (West Cum.Supp.1979); see also Reorg.Plan No. 2 of 1978, § 104, 43 Fed.Reg. 36,037 (1978), Reprinted in 5 U.S.C.A. § 1101 note, at 30 (West Cum.Supp.1979), and as a determination interpreting, within the framework of the statutory scheme OPM is to administer, which executive branch officials or agencies are authorized to decide what wage rates are "consistent with the public interest" and to what extent the standard established by the statute curtails the discretion granted, See, e. g., Association of Bituminous Contractors v. Andrus, 189 U.S.App.D.C. 75, 85, 581 F.2d 853, 863 (1978); Kruse v. Hampton, 394 F. Supp. 764, 769-70 (S.D.Ala.1974), Aff'd, 513 F.2d 1231 (5th Cir. 1975) (per curiam); Rogers v. Laird, 319 F. Supp. 1, 4 (E.D.Va.1970). Clearly, the implementation of the 5.5 percent pay cap by DoD and OPM was neither arbitrary nor capricious nor an abuse of discretion; rather, it was based upon sound, pragmatic, nondiscriminatory analysis and directive.
Plaintiffs' final challenge to the 5.5 percent pay cap involves the question of its retroactive application. In this regard they assert: 1) the refusal of the government to implement the results of DoD wage surveys on the wage increase's effective date, as set by section 5344 of title 5, violates the statutory scheme governing such increases, and 2) the class of workers plaintiffs represent had a "vested" right or interest in the pay increases as revealed by the wage surveys such that denial of those increases was a violation of the fifth amendment's guarantee of due process.
As the defendants point out, plaintiffs' first argument is merely a reiteration, in somewhat different terms, of their contention that there is no agency discretion to implement any increase in variance with the results of the wage surveys. An analysis of the language of section 5344 indicates, however, that it does not in any way conflict with this Court's previous determination that there is no statutory entitlement to a raise in strict parity with the results of the wage survey.
In enacting the statutory scheme governing prevailing wage rate worker's salaries, the Congress sought to insure that those salaries were periodically reviewed and increased, if appropriate, by requiring OPM to conduct full-scale wage surveys every two years, with an interim survey to be held between each full-scale survey. See 5 U.S.C.A. § 5343(b) (West Cum.Supp.1979). At the same time, the lawmakers foresaw that circumstances might arise whereby the official issuance of the appropriate wage schedules following completion of the wage surveys would be delayed. To protect the workers in such an event, section 5344 provides in pertinent part:
(a) Each increase in rates of basic pay granted, pursuant to a wage survey, to prevailing rate employees is effective not later than the first day of the first pay period which begins on or after the 45th day, excluding Saturdays and Sundays, following the date the wage survey is ordered to be made.