wage schedules of prevailing rate government workers are to be made "as nearly as is consistent with the public interest." 5 U.S.C. §§ 5341, 5343(a) (1976). The inclusion of these words in the statutes indicates that Congress did not intend that prevailing rate government workers automatically receive whatever the labor market in the private sector will bear, but rather that executive branch officials exercise discretion and make policy judgments to determine precisely what rates of wage increase would be wise in light of all relevant factors. Section 5343(a)(3) further permits the exercise of discretion through its language authorizing the lead agency to "Analyze wage survey data, and develop and establish Appropriate wage schedules and rates for prevailing rate employees." (Emphasis supplied.) The lead agency is thus clearly directed to act as more than a conduit for the gathering of information. It is plain that the data received from the wage surveys is not meant to dictate the wage schedules ultimately established. Rather, the lead agency is to Study the information obtained and determine to what extent the wage rates prevailing in the private sector can appropriately be applied to government workers. Once a decision has been made concerning what rates constitute proper increases, then the government agencies within the given wage area must apply the rates established by the lead agency. All of this was done in the instant case.
Plaintiff would have the Court ignore the operative discretionary language of the statutes and instead look to what it insists are indications in the legislative history that Congress intended to prevent the operation of executive discretion in the setting of wage rates for employees covered by the statutory scheme at issue here. "When confronted with a statute which is plain and unambiguous on its face, we ordinarily do not look to legislative history as a guide to its meaning." TVA v. Hill, 437 U.S. 153, 184 n.29, 98 S. Ct. 2279, 2296, 57 L. Ed. 2d 117 (1978); See Ex parte Collett, 337 U.S. 55, 61, 69 S. Ct. 944, 93 L. Ed. 1207 (1949). Even were the Court to do so, however, the sources on which plaintiff chiefly relies do not, when reviewed in their entirety, indicate that Congress was concerned with entirely eliminating discretion in the executive branch in setting wage scales. On the contrary, the congressional debates cited by plaintiff show that the intent behind the legislation at issue here was to create a coordinated system under which wage scales and job grading could be established and of which nonappropriated fund workers would be made a part. See 118 Cong.Rec. 21018-21032 (1972) (Senate debate); 117 Cong.Rec. 27679-27693 (1972) (House of Representatives debate).
It is significant to note that in passing sections 5341 and 5343(a) in 1972, Congress retained the language "as nearly as is consistent with the public interest," which, when used in prevailing rate statutes, has been repeatedly interpreted by the courts as vesting discretion in the executive branch to determine appropriate wage rates. See, e. g., Rogers v. Laird, 319 F. Supp. 1, 4 (E.D.Va.1970); Baratt v. United States, 218 Ct. Cl. 242, 585 F.2d 1041, 1045 (Ct.Cl.1978); Daigle v. United States, 217 Ct. Cl. 376 (Ct.Cl. 1978). Indeed, this "operative language . . . has remained unchanged since its enactment as part of the Classification Act of 1949, ch. 782, § 202(7), 63 Stat. 955." Baratt v. United States, supra, 585 F.2d at 1045; See Blaha v. United States, 206 Ct. Cl. 183, 511 F.2d 1165, 1166 (Ct.Cl.1975). The Court of Claims has observed in interpreting a prevailing rate statute drafted to include these words that "(it) is (the executive branch's) responsibility to determine how closely the salaries of the specified personnel can parallel the . . . industry's rates and still be "consistent with the public interest.' " Daniels v. United States, 407 F.2d 1345, 1347, 187 Ct.Cl. 38 (1969).
Nonetheless, plaintiff would have this Court adopt the reasoning that the language "as nearly as is consistent with the public interest" is merely introductory and adds nothing to the statute. Such an interpretation would not only fly in the face of precedent, but would also violate the well-known principle of statutory construction that all words in a statute are to be assigned a meaning and are not to be considered mere surplusage. E. g., Association of Bituminous Contractors v. Andrus, 189 U.S.App.D.C. 75, 84 & n.22, 581 F.2d 853, 862 & n.22 (1978); Zeigler Coal Co. v. Kleppe, 175 U.S.App.D.C. 371, 379, 536 F.2d 398, 406 (1976); Wilderness Society v. Morton, 156 U.S.App.D.C. 121, 135, 479 F.2d 842, 856, Cert. denied, 411 U.S. 917, 93 S. Ct. 1550, 36 L. Ed. 2d 309 (1973). It is clear that the statutory scheme vests discretion in the executive branch to make an ultimate determination concerning whether it is appropriate to establish wage schedules that precisely parallel those prevailing in the private sector. Although the government properly could have adopted the pay practices generally prevailing in the private sector as determined by its survey, and indeed "is encouraged to adopt industry practices if they are "consistent with the public interest . . ., within its discretion, (the government) is also entitled to invoke the public interest clause." Daigle v. United States, supra, 217 Ct. Cl. 376. The latter course was chosen by the executive branch in this instance.
As an alternative position, plaintiff contends that Congress' passage of section 614(a) of the Treasury, Postal Service, and General Government Appropriations Act, 1979, Pub.L. No. 95-429, 92 Stat. 1001 (1978), suggests congressional intent that nonappropriated fund prevailing rate employees be exempted from the 5.5 percent pay cap. The statute provided that no funds appropriated for fiscal 1979 can be used to pay salary increases exceeding by more than 5.5 percent the salary rates effective in fiscal 1978 for federal white collar personnel or blue-collar prevailing rate workers paid by appropriated funds. It is totally silent, however, regarding wage increases for nonappropriated fund prevailing workers, such as plaintiff's members. As support for his argument, plaintiff relies upon statements in the legislative history of the statute indicating that the intent of the legislation's supporters was to apportion equally among all federal workers the burden of wage limitations imposed as a result of the government's anti-inflation program. See 124 Cong.Rec. S9866, S9868 (daily ed. June 27, 1978) (remarks of Sens. Eagleton and Percy). Plaintiff asserts that since the stated objective of the legislation was to equalize this burden and since the only group of prevailing rate workers specifically covered is that defined by 5 U.S.C. § 5342(a)(2)(A), who are workers paid by appropriated funds, Congress presumably intended that employees paid with nonappropriated funds not be subjected to the pay cap.
By offering this argument, plaintiff apparently seeks to find support in the maxim Expressio unius est exclusio alterius. The doctrine is of limited utility to plaintiff in the instant case, however. Although plaintiff has not clearly articulated what direct effect, if any, the passage of Public Law 95-429 has upon section 5343(a) and its grant of discretion to the lead agency, there seem to be two possible challenges plaintiff may be making. First, plaintiff could be contending that DoD's capping of wage schedules of nonappropriated fund employees in the face of the silence of Public Law 95-429 regarding this group is an arbitrary and capricious action. Plaintiff, however, has waived this argument by its representation to the Court, upon precise inquiry, that it does not challenge defendants' actions as arbitrary and capricious. See note 7 Supra. The second possible argument appears to be that in some way Public Law 95-429 impliedly repeals section 5343(a). In considering such an assertion, it is necessary to remember "the "cardinal rule . . . that repeals by implication are not favored.' " Morton v. Mancari, 417 U.S. 535, 549, 94 S. Ct. 2474, 41 L. Ed. 2d 290 (1974) (quoting Posadas v. National City Bank, 296 U.S. 497, 503, 56 S. Ct. 349, 80 L. Ed. 351 (1936)). The Supreme Court has repeatedly stated that the legislature's intent to repeal must be manifest. See, e. g., TVA v. Hill, supra, 437 U.S. at 153, 98 S. Ct. 2279; Georgia v. Pennsylvania Railroad, 324 U.S. 439, 456-57, 65 S. Ct. 716, 89 L. Ed. 1051 (1945); Posadas v. National City Bank, supra, 296 U.S. at 503, 56 S. Ct. 349. Public Law 95-429 gives no indication, much less a clear statement, of intent to repeal section 5343(a). Moreover,
(t)he doctrine disfavoring repeals by implication "applies with full vigor when . . . the subsequent legislation is an Appropriations measure." Committee for Nuclear Responsibility v. Seaborg, 149 U.S.App.D.C. 380, 382, 463 F.2d 783, 785 (1971) (emphasis added) . . . . This is perhaps an understatement since it would be more accurate to say that the policy applies with even Greater force when the claimed repeal rests solely on an appropriations act.