As noted in your letter, for example, two federal courts have held that commissioned officers of the PHS who, like officers of the NOAA, are members of the uniformed services, but not members of the Armed Forces are protected employees for purposes of the employment discrimination provisions of Title VII. See Milbert v. Koop , F. United States Dept. But see Salazar v. Heckler , F. Further, application of the Reimbursement Law to the uniformed services would not present any special risk of interference with their duties or functions.
Some courts, for example, have viewed Title VII as posing the threat of inappropriate interference with the disciplinary and command arrangements that are unique to the military services. See, e. Owens , 57 F. Rather, it simply extends a benefit to qualified employees of partial reimbursement for liability insurance should they seek to purchase it. In light of the foregoing considerations, we conclude that if a member of the NOAA Corps otherwise satisfies the Reimbursement Law's requirements for a "qualified employee" - including the functional definitions of "law enforcement officer," "supervisor," or "management official" - it is irrelevant whether he or she also satisfies the definition of "employee" set forth at 5 U.
In reaching this conclusion, we acknowledge that the contrary arguments made by DOC are not without merit. As DOC points out in applying the "broader context" approach of Robinson v. Shell Oil , the Reimbursement Law could be said to fall within the general body of laws codified in Title 5 covering government organization and employees, although Congress did not choose to enact it as an amendment or addition to Title 5 that would be incorporated and codified as part of the actual text of Title 5.
See DOC Letter at 6. Absent some contrary indication of congressional intent, it may sometimes be appropriate to fill in the definitional gaps of statutes dealing with federal personnel matters by "borrowing" the appropriate Title 5 definition on the reasonable assumption that Congress clearly intended that definition to apply and simply considered it unnecessary to make that intention explicit.
On the contrary, the Reimbursement Law contains a rather elaborate series of functionally -related definitions which appear to set forth adequately the intended reach and limits of the reimbursement benefit.
The statutory scheme indicates that Congress intended to extend this benefit to federal personnel working in the described functional categories - law enforcement, supervision, and management - because it considered those categories to be most in need of the liability insurance reimbursement benefit in question. And we find nothing in the statute indicating that Congress viewed persons working in federal law enforcement, supervisory, or management capacities as falling outside the beneficial purposes of the statute merely because they happen to be in the uniformed, rather than the civil, service.
The Reimbursement Law's emphasis on these functional criteria in defining a "qualified employee" distinguishes this matter from a prior opinion where we interpreted the term "employee" as used in an executive order to exclude appointed members of the Regional Fishery Management Councils "RFM Councils".
See Applicability of Executive Order No. The executive order in question set forth ethical standards for executive branch employees and defined the term "employee" as "any officer or employee of an agency, including a special Government employee.
We concluded that the term "employee" as used in the executive order was identical in scope and meaning to that term as defined in Title 5, see 5 U. Among the three considerations on which we relied in reaching this conclusion was that "although the Order does not expressly adopt title 5's definition of an 'employee,' it does adopt that title's definition of an 'agency.
We believe the Reimbursement Law is distinguishable from the executive order addressed in our opinion because the Reimbursement Law's functional definition of "qualified employee" demonstrates that Congress was focusing upon specific criteria distinct from Title 5's definition of "employee" in deciding who would be eligible for the reimbursement benefit - providing functional definitions lacking in the executive order.
We also note that one prominent federal court of appeals decision has expressly declined to "borrow" the Title 5 definition of "employee" in construing a statute that explicitly incorporated Title 5's definition of "agency" but not its definition of "officer" and "employee. Clinton , F. The district court, in holding that the First Lady did not constitute such a federal government employee and that the FACA exemption therefore did not apply, had "quite reasonably turned to Title 5 of the U.
Code to find a definition. But the Court of Appeals reversed, holding that the Title 5 definitions of "officer" and "employee" do not govern the question whether the First Lady is a federal officer or employee for purposes of FACA. The court instead applied the definition of "officer" in Title 1, U. Code, in concluding that the First Lady was an "officer" for the purposes in question.
In explaining its refusal to adopt the Title 5 definitions of officer or employee, the court explained:. Nevertheless, it is true, as the government insists, that Congress did not adopt explicitly all of Title 5's definitions in FACA.
Typically, when Congress wishes to add a statute to Title 5, it amends the Title. It did not do so when it passed FACA, but at that time it specifically did adopt certain Title 5 definitions. For example, adjacent to the definition of an advisory committee is FACA's definition of any agency, which incorporates the defini- tion in Title 5: "'agency' has the same meaning as in section 1 of title 5, United States Code. The statutory framework addressed by the court in Clinton is quite similar in key respects to that presented here - e.
Finally, we have considered whether there is any manifest incongruity in applying the Reimbursement Law's definitions of law enforcement, supervisor, or management personnel to the NOAA Corps that would cast doubt on our interpretation. We conclude that there is not.
This definition, unlike the definitions for "supervisor" and "management official" discussed below, applies only to one who is "an employee.
Insofar as members of the NOAA Commissioned Corps hold positions whose duties are "primarily the investigation, apprehension, prosecution, or detention of individuals suspected or convicted of offenses against the criminal laws of the United States," we conclude that they would be entitled to insurance reimbursement as authorized by the Reimbursement Law. This Office, however, lacks sufficient factual knowledge of NOAA personnel assignments, or those of the other uniformed services, to assess which particular positions would satisfy the criteria for the "law enforcement officer" classification.
Such determinations must be made by the particular employing agency, based on its knowledge of its own personnel and their assignments. See note 14, infra. The Reimbursement Law also authorizes reimbursement coverage for qualified employees who are "supervisors. Although this definition does not require that an individual be a Title 5 "employee" in order to be a supervisor, it does require that a supervisor serve in a position authorizing him or her to perform the enumerated activities with respect to "employees.
Accordingly, we conclude that while members of the uniformed services are not excluded from qualifying as supervisors under the Reimbursement Law, only those who exercise at least one of the enumerated supervisory activities with respect to civilian employees i. During the Civil War — , Army officers were withdrawn from Coast Survey duty, never to return, while all but two Navy officers also were withdrawn from Coast Survey service for the duration of the war. Since most men of the Survey had Union sympathies, most stayed on with the Survey rather than resigning to serve the Confederate States of America; their work shifted in emphasis to support of the U.
Those Coast Surveyors supporting the Union Army were given assimilated military rank while attached to a specific command, but those supporting the U. Navy operated as civilians and ran the risk of being executed as spies if captured by the Confederates while working in support of Union forces. After the war, U. Navy officers returned to duty with the Coast Survey, which was given authority over geodetic activities in the interior of the United States in and accordingly was renamed the United States Coast and Geodetic Survey in Marine Hospital Service protecting against the spread of disease from sailors returning from foreign ports and maintaining the health of immigrants entering the country.
Much like Army Corp of Engineers these uniformed services where more or less branches of the Army and Navy that split off like the Air Force to form their own uniformed service. So yes while not under the DoD command they do receive benefit. MAJ Join to see 6 y. Awesome informed response. Show More Comments.
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Sign Up with Facebook. Because we each represent NOAA to the public, we must all embrace these values in our professional undertakings as well as in our personal lives. Contact us with page issues. Hassler conducted emergency seafloor surveys to locate possible submerged navigational hazards in the ports of New York and Virginia. These surveys enabled the ports to reopen quickly.
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