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United States: Court of Appeals for the District of Columbia Circuit Decision in Collins v. Weinberger*
Published online by Cambridge University Press: 04 April 2017
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- Type
- Judicial and Similar Proceedings
- Information
- Copyright
- Copyright © American Society of International Law 1983
Footnotes
*
[Reproduced from the Slip Opinion provided by the U.S. Court of Appeals for the District of Columbia Circuit.
[The U.S. Supreme Court Decision in Weinberger v. Rossi, rendered March 31, 1982, appears at 21 I.L.M. 660 (1982).]
References
* Sitting by designation pursuant to Title 28 U.S.C. § 294 (d).
1 USAREUR Regulation 690-84 (1974), reprinted in Joint Appendix (JA) at 146-182.
2 5 U.S.C. § 7201 note (Supp. V 1981).
3 Agreement Between the Parties to the North Atlantic Treat v Regarding the Status of Their Forces (hereinafter cited as NATO/SOFA), 19 June 1951, 4 U.S.T. 1792, T.I.A.S. No. 2846.
4 Agreement to Supplement the Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces with Respect to Foreign Forces Stationed in the Federal Republic of Germany (hereinafter cited as Supplementary Agreement), 3 Aug. 1959. 14 U.S.T. 531, T.I.A.S. No. 5351, as amended 24 U.S.T. 2355. T.I.A.S. No. 7759, and U.S.T., T.I.A.S. No. 10367.
5 NATO/SOFA at Art. I, ¶ 1(a).
6 Id. at Art. I, ¶ 1(b).
7 Id. at Art. IX, ¶ 4. It should be noted that the category of local nationals may include United States citizens ordinarily resident in the FRG.
8 Id. at Arts. III, X, XI.
9 Id. at Art. IX, ¶ 4.
10 For a detailed description of the events leading to the negotiations, the negotiations themselves and the subsequent agreement, see Affidavit of Frank Cipolla, reprinted in JA at 348-367.
11 English translation reprinted in JA at 403-412. The Protection Against Dismissal Act is applicable to German employees generally. It provides that the dismissal of an employee who qualifies for statutory protection “shall be socially unwarranted [and therefore invalid] if it is not based on reasons connected with the person or conduct of the employee or on urgent operating requirements precluding his continued employment in the establishment.” Id. at 403.
12 USAREUR Reg. 690-84. § III, reprinted in JA at 146, 152-163.
13 Affidavit of Gerald Ralston at ¶ 3, 4, reprinted in JA at 452, 452; Affidavit of Franziska Scherer at ¶ 4, reprinted in JA at 454, 454-55.
14 The precise language of Section 106 is confusing since it employs a double negative, forbidding discrimination “[u]nless prohibited by treaty.” The Supreme Court, however, has held that Section 106 is properly read to prohibit such discrimination unless the discrimination is permitted by treaty. Weinberger v. Rossi, 456 U.S. 25, 29 (1982).
15 Memorandum Opinion, No. 79-2598, at 7 (D.D.C. 22 June 1982), reprinted in JA at 506, 512.
16 Parts of the district court’s opinion might be read to imply that Regulation 690-84 itself qualifies as a “treaty” for purposes of Section 106. Sec, e.g., Mem. Op. at 5, 7, reprinted in JA at 510, 512. That position is untenable. See p. 8 infra.
17 456 U.S. 25 (1982).
18 456 U.S. at 33.
19 See 117 Cong. Rec. 14395-96 (1971) (remarks of Sen. Schweiker), reprinted in JA at 312-13.
20 See id.; id. at 16126 (remarks of Sen. Cook) ; id, (remarks of Sen. Hughes).
21 456 U.S. at 31-32.
22 Id. at 33.
23 Affidavit of Ravmond C. Ewing at ¶ 8, reprint d in JA at 396, 399.
24 456 U.S. at 29. See Vienna Convention on the Law of Treaties. 23 May 1969, Art. 2. ¶ 1 (a) , reprinted in 63 AM. J. Int’l L. 875, 876 (1969).
25 No one disputes that NATO/SOFA, as an Article II treaty, and the Supplementary Agreement, as an executive agreement, are both treaties within the meaning of Section 106.
26 NATO/SOFA at Art. IX, ¶ 4. See also Supplementary Agreement at Art. 56, ¶ 1(a).
27 Sumitomo Shoji America. Inc. v. Avagliano, 102 S. Ct. 2374, 2379 (1982); Kolovrnt v. Oregon. 366 U.S. 187, 194 (1961); United States v. Curtiss-Wright Export Corp.. 299 U.S. 304. 320 (1936); Factor v. Laubenheimer. 290 U.S. 276, 294-95 (1933).
28 NATO/SOFA at Art. XVI; Supplementary Agreement at Art. 3.
29 USAREUR has apparently made a practice of publishing regulations to implement pertinent FRG labor statutes. Affidavit of Frank Cipolla at ¶ 7(i), reprinted in JA at 348, 356-57. This practice is in keeping with the express language of the Supplementary Agreement.
The German authorities and the authorities of a sending State shall take all administrative measures necessary for the implementation of the NATO Status of Forces Agreement and of the present Agreement, and where necessary, shall conclude administrative or other agreements to that end.
Supplementary Agreement at Art. 3, ¶ 4. See also Holmes v. Laird, 459 F.2d 1211, 1222 (noting that “corrective machinery” of NATO/SOFA and the Supplementary Agreement is diplomatic not judicial), cert, denied, 409 U.S. 869 (1972).