source: Caselaw Access Project

author: WILKEY, Circuit Judge:

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text:
    In re Grand Jury Proceedings, George Gordon LIDDY, Appellant.
    No. 73-1562.
    United States Court of Appeals, Distict of Columbia Circuit.
    Argued June 14, 1974.
    Decided Oct. 10, 1974.

      Peter L. Maroulis, Poughkeepsie, N. Y., for appellants. Thomas A. Kennelly, Washington, D. C., also entered an appearance for appellant.
    Sidney M. Glazer, Asst. Sp. Prosecutor for appellee. Leon Jaworski, Sp. Prosecutor, Philip A. Lacovara, Counsel for the Sp. Prosecutor, Richard D. Weinberg, and Robert L. Palmer, Asst. Counsel to the Sp. Prosecutor, were on the brief for appellee. Archibald Cox, Sp. Prosecutor at the time the brief was filed, was on the brief for appellee.
    Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, LEVENTHAL, ROBINSON, MacKINNON and WIL-KEY, Circuit Judges, sitting en banc.
   WILKEY, Circuit Judge:

Appellant George Gordon Liddy seeks reversal of an order of civil contempt which the District Court entered against him on 3 April 1973. The contempt order issued when Liddy persisted in asserting his Fifth Amendment privilege against self-incrimination in response to questioning before the 5 June 1972 Watergate grand jury, despite a District Court order granting him conpulsory immunity pursuant to 18 U.S.C. § 6002. The District Court found that there was no “just cause” for Liddy’s contumacy and, pursuant to 28 U.S.C. § 1826, ordered that Liddy “be confined until such time as he is willing to testify as ordered,” with the period of confinement not to exceed the life of the grand jury including extensions, but in any case not more than eighteen months.

Liddy argues that his status in relation to the grand jury was not that of an ordinary witness, and therefore that the District Court acted improperly when it granted him compulsory immunity under section 6002 and ordered him to testify. The invalidity of this order, Liddy contends, vitiates the court’s subsequent civil contempt judgment. We reject Liddy’s arguments and affirm the contempt order.

I. FACTUAL BACKGROUND

On 15 September 1972 the 5 June 1972 federal grand jury returned an eight count indictment charging Liddy and six other persons with offenses committed in connection with the break-in at the Democratic National Committee (DNC) headquarters in the Watergate apartment complex on 17 June 1972. Six of the counts charged Liddy with conspiracy, burglary, and illegal interception of oral and wire communications.

At his trial in District Court Liddy declined to take the witness stand on his own behalf. On 30 January 1973 the jury returned a verdict of guilty on all six charges against Liddy. On 23 March 1973 the District Court sentenced Liddy to imprisonment for a term of not less than six years and eight months and not more than twenty years and imposed a fine of $40,000.

Three days after Liddy was sentenced he was summoned before the 5 June 1972 grand jury, which had returned the indictment on which his conviction was based. An Assistant United States Attorney questioned Liddy regarding several aspects of the Watergate break-in. The questions related to four basic subjects: 1) Liddy’s own activities in connection with the electronic surveillance and burglary of the DNC and his actions in the aftermath of the break-in; 2) Liddy’s meetings and contacts with other persons before and after the break-in; 3) the involvement in or knowledge of the break-in on the part of persons other than the seven co-defendants ; and 4) surveillance activity directed at candidates or potential candidates for federal office in 1972. In response to these questions Liddy consistently refused to answer on the ground that to do so might incriminate him.

At a subsequent hearing before the District Court on 26 March the Government requested that the court grant Liddy immunity under 18 U.S.C. § 6002 and order him to testify before the grand jury. The transcript of Liddy’s grand jury appearance was read to the court, which deferred ruling on the Government’s motion until 30 March to permit Liddy’s counsel to prepare an argument in opposition. At the 30 March hearing counsel for Liddy opposed the Government’s motion on the basis of essentially the same arguments advanced on Liddy’s behalf in this court, including the contention that Liddy was a target of the grand jury’s investigation and therefore could not be compelled to testify. The Government disclaimed any intention to seek further indictments against Liddy. The District Court granted the Government’s motion and ordered Liddy to “appear before the Grand Jury and give testimony or provide other information which he has refused to give or provide . . . as to all matters about which he may be interrogated before said Grand Jury.” The court conferred “use and derivative use” immunity upon Liddy pursuant to 18 U.S.C. § 6002.

When Liddy was taken before the grand jury on 30 March, he again refused to answer questions relating to the Watergate electronic surveillance and break-in on the ground of his Fifth Amendment privilege against self-incrimination. His attitude toward the grand jury interrogation was elicited by an Assistant United States Attorney in the following exchange:

Q. Well, let me ask you this question. Is there any question or any classification of subject matter that we can discuss in here, in this grand jury room, relating directly or indirectly to the events, both prior to and subsequent to, and the event itself of June 16th and 17th, 1972, which you feel you could give information about or answer questions about without invoking your self-incrimination privilege?
A. My best evaluation and my best judgment on that, without hearing a specific question — my best judgment in response to that question would be no.

At a hearing on 3 April 1973 the transcript of Liddy’s 30 March grand jury appearance was read to the District Court. Upon the Government’s motion to adjudicate Liddy in contempt, the court issued an order that provided, in pertinent part:

The Court finds that George Gordon Liddy has, without just cause, refused to testify before the grand jury as ordered by this Court on March 30, 1973. The provisions of Title 28, United States Code § 1826 are thus made applicable. Pursuant to that statute, the Court this 3rd day of April, 1973,
ORDERS that Mr. Liddy be confined until such time as he is willing to testify as ordered; provided, however, that the period of confinement shall not exceed the life of the grand jury, including extensions, and shall in no case exceed eighteen (18) months . . . .

The court further ordered that “[tjhat to give meaning and coercive impact to the Court’s contempt powers in the interest of protecting the Court’s integrity, the Court here finds it necessary to hold in abeyance the execution of Mr. Liddy’s sentence under the indictment [for burglary, conspiracy, and wiretapping] pending his confinement for contempt.” This appeal followed.

II. VALIDITY OF THE DISTRICT COURT’S ORDER TO TESTIFY AND RESULTING CONTEMPT JUDGMENT

Insofar as Liddy’s attack on his contempt conviction rests on his Fifth Amendment privilege against self-incrimination, the Supreme Court’s 1973 decision in Kastigar v. United States seems fatal to his position. Kastigar resolved a challenge to the immunity clause of 18 U.S.C. § 6002, which provides that when a presiding court orders a contumacious witness to testify before a grand jury, “no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or information) may be used against the witness in any criminal case . . . . ” In upholding the validity of this “use and derivative use” immunity, the Court in Kastigar stated:

We conclude that the immunity provided by 18 U.S.C. § 6002 leaves the witness and the prosecutorial authorities in substantially the same position as if the witness had claimed the Fifth Amendment privilege. The immunity therefore is coextensive with the privilege and suffices to supplant it.

Since the District Court’s 30 March order to testify granted Liddy immunity under section 6002, had Liddy testified he would have been “in substantially the same position as if [he] had claimed the Fifth Amendment privilege.” Thus, he could “not refuse to comply with the order [to testify] on the basis of his privilege.....” His further contumacy subjected him to a contempt judgment under 28 U.S.C. § 1826.

However, Liddy argues that section 6002 immunity, as interpreted and sanctioned by Kastigar, was intended for use only when an “ordinary witness” asserts his Fifth Amendment privilege as a ground for refusing to testify. When he appeared before the Watergate grand jury on 26 and 30 March 1973, Liddy avers, he was not an ordinary witness. Rather, his status was such that he was entitled to remain silent despite the District Court’s order granting him use and derivative use immunity. Liddy characterizes his allegedly extraordinary status before the Watergate grand jury in several fashions:

A. Defendant. Since the Watergate grand jury had indicted him in September 1972, Liddy argues, he appeared before it as a “defendant” who could exercise his “ ‘prerogative . . . not to take the stand in his own prosecution .’”

B. Appellant. Since Liddy’s conviction on the Watergate grand jury’s indictment is still pending on appeal, he may be retried on that indictment. Liddy contends that it is therefore inappropriate for the grand jury to compel him to testify on matters that may arise during his possible retrial.

C. Target or Potential Defendant. Given “the assertions of the Government that he was the ‘arch conspirator and boss’ of the criminal transactions which have been, and are still under investigation by the grand jury,” Liddy argues that he is a target of the grand jury’s investigation and as such cannot be compelled to give possibly incriminating evidence about himself, even under a grant of immunity.

While we can discern nothing in section 6002 or Kastigar which suggests that these categories of witnesses are to be treated differently from “ordinary witnesses,” we will nevertheless discuss each category separately and demonstrate that Liddy can derive no comfort from his self-categorizations.

A. Liddy as Defendant

While we think the analogy between a defendant standing trial and a “defendant” appearing before the grand jury is an imperfect one, we recognize that there is respectable authority for the proposition that one who has been formally charged may not be called before the grand jury to testify about his alleged crimes unless he knowingly consents. However, we need not decide whether we should lend our imprimatur to this proposition, for even if we were to do so, Liddy would not benefit thereby. Liddy is not in the position of one who has been indicted and, before facing trial, has been called to testify before the indicting grand jury. Rather, Liddy has been indicted and convicted for the crimes about which the grand jury now seeks his testimony. The Second Circuit in United States v. Romero analyzed the status of a grand jury witness in such a position as follows:

It is well established that once a witness has been convicted for the transactions in question, he is no longer able to claim the privilege of the Fifth Amendment and may be compelled to testify.

In Reina v. United States the Supreme Court stated that this proposition is supported by “weighty authority” and cited Romero as one such authority. Since Liddy “has been convicted for the transactions in question” (unlawful surveillance and break-in of the Watergate) “he is no longer able to claim the privilege” (with respect to grand jury questions regarding those transactions) “and may be compelled to testify.” That Liddy has been granted use and derivative use immunity under section 6002 makes it even more difficult for us to accept his argument that as a defendant he could not be compelled to answer the grand jury’s questions. Indeed, we reject that argument.

B. Liddy as Appellant

Liddy argues that the grand jury cannot compel him to answer questions regarding the Watergate surveillance and break-in because if he is successful in the pending appeal of his conviction for Watergate crimes and the court orders him retried, his answers to the grand jury’s questions might prejudice him on retrial. The short answer to this contention is that Liddy has been granted immunity under 18 U.S.C. § 6002, which ensures that if he is retried, the Government will be precluded from using his grand jury testimony or any evidence derived therefrom against him at retrial. This protection, as the Supreme Court held in Kastigar, .is sufficient to supplant his Fifth Amendment privilege.

Frank v. United States, on which Liddy places much reliance, is of no help to his position. We did hold in that case that “the Government may not convict a person and then, pending his appeal, compel him to give self-accusatory testimony relating to the matter involved in the conviction.” However, our holding turned on the fact that the convicted defendant had appeared before the grand jury under a grant of absolute, transactional immunity conferred upon him pursuant to section 409(1) of the Federal Communications Act, which has been superseded by the use and derivative use immunity provision of 18 U.S.C. § 6002. Section 409(1) provided that “no individual shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence . . . .’’In Frank we held that this language necessitated dismissal of the indictment against the appellant, who had been compelled to testify about the crimes for which he had been convicted while his appeal of those convictions was pending. We reasoned that dismissal was necessary because otherwise one of two events could have occurred: 1) appellant’s conviction could have been reversed and a retrial ordered, in which case the Government would have been prosecuting appellant “for or on account of [a] transaction . . . concerning which he [had been] compelled ... to testify” or 2) appellant’s conviction could have been affirmed, in which ease he would have been “subjected to [a] penalty . . for or on account of [a] transaction” about which he had testified. In either case, the proscription of the transactional immunity provision then in effect would have been violated.

Conferral. of transactional immunity on grand jury witnesses who claim their Fifth Amendment privilege not only is no longer required by statute, but has been held unnecessary under the Fifth Amendment by the Supreme Court. In Kastigar, the Court stated:

The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being “forced to give testimony leading to the infliction of ‘penalties affixed to criminal acts.’ ” Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness

Thus, the immunity granted to Liddy under section 6002 gives him protection commensurate with his Fifth Amendment privilege without precluding further prosecution (in this case, retrial) for or on account of Watergate matters, about which he has been ordered to testify before the grand jury. Since our holding in Frank rested on application of a now defunct transactional immunity statute, it can have no relevance for Liddy’s case.

Our analysis draws support from a 1972 decision by the Fifth Circuit, United States v. Kelly. At issue in Kelly was a judgment of contempt that the District Court had entered against Kelly for refusing to answer grand jury questions regarding criminal acts for which he had been convicted. Kelly attacked the contempt judgment on the ground that the District Court’s order of immunity failed to protect him from retrial in the event his conviction was reversed on appeal. The Fifth Circuit originally accepted Kelly’s argument and vacated the contempt judgment by an abbreviated order that was to be explained in a subsequent opinion. Before the court could issue its opinion, however, the Supreme Court decided Kastigar. The Fifth Circuit then vacated its original order and reinstated the contempt judgment against Kelly. The court explained that after Kastigar a witness need not be protected from retrial for the crimes about which he has been ordered to testify before the grand jury. Therefore, the court stated, “the immunity order issued by the district court . was, under Kastigar, sufficient to protect Kelly’s Fifth Amendment privilege.” In so holding, the court explicitly refused to follow the Frank decision. We can conclude only that the immunity conferred upon Liddy was sufficient to supplant his Fifth Amendment privilege notwithstanding his status as a convicted defendant whose appeal was pending.

C. Liddy as Target or Potential Defendant

Liddy asserts that as the recognized “arch conspirator” in the Watergate bugging and burglary he is a target of the grand jury’s investigation. In this status, Liddy contends, the Fifth Amendment precludes the grand jury from compelling him to give testimony that might lead to his own indictment. As support for his position, Liddy cites the view expressed by four judges of this court sitting en banc in Jones v. United States:

At a trial, putting the accused on the witness stand without his consent and asking him anything at all would violate his constitutional privilege against self-incrimination. We think taking him before the grand jury without his consent and asking him anything violates his privilege.

However, in the context of Liddy’s case, we need not decide whether to endorse the Jones minority position for even if we did, it would avail Liddy nothing.

In Jones the appellant had already given the police a confession by the time he appeared before the grand jury, so it was inevitable that the grand jury would indict him. Subsequently, he was in fact indicted (and convicted) for the crimes about which the grand jury had questioned him. The four-judge minority of this court expressed the view quoted above and advocated that appellant’s indictment be dismissed as a consequence. Liddy's position is obviously different from that of the appellant in Jones. First, the grand jury has not returned an indictment against Liddy in the time since his appearance before it. Thus, the main reason the minority in Jones concluded that compelling the appellant to appear before the grand jury violated his Fifth Amendment privilege is absent in the case at bar. Moreover, the remedy proposed by the minority in Jones, dismissal of appellant’s possibly tainted indictment, is obviously inapplicable here. Second, there is no indication that at the time Liddy was called to testify, the grand jury intended to indict him for the crimes about which he was questioned, nor is there any evidence that it now so intends. So Liddy is not manifestly or even arguably the target of the grand jury’s investigation as the appellant was in Jones. Indeed, Government prosecutors expressly disclaimed any interest in indicting Liddy for Watergate crimes at the hearings on the Government’s motion to grant immunity. Our faith in these disclaimers is enhanced by the fact that Liddy has already been tried and convicted under three different criminal statutes for his actions in connection with the Watergate surveillance and break-in.

Liddy’s position vis-a-vis the Watergate grand jury is more like that of the appellant in Goldberg v. United States. After Goldberg had been arrested and arraigned for possession of stolen treasury bills, he was called before a grand jury and questioned' about his alleged crimes and the possible involvement of others in the treasury bill transactions. He asserted his Fifth Amendment privilege and refused to answer. The District Court granted him immunity under 18 U.S.C. § 6002 and ordered him to testify, but he persisted in asserting his privilege. Consequently the court found him guilty of civil contempt and ordered him confined pursuant to 28 U.S.C. § 1826. On appeal Goldberg argued that the compulsory immunity provision of section 6002 was not intended to apply to a “person who was already the subject of a criminal complaint for the transaction into which the grand jury was inquiring . . . .” If it was so intended, he argued, it is unconstitutional despite the Supreme Court’s holding in Kastigar. The Second Circuit affirmed Goldberg’s contempt conviction. The court held that Goldberg could be compelled to testify under a grant of section 6002 immunity and rejected his argument to the contrary as follows:

The wording of the statutory provisions contains no suggestion of a limitation of the kind advanced by appellant; although he points to the word “witness” in § 6002, it seems clear that this includes a witness before the grand jury, which Goldberg surely is, even if he is also a potential defendant at a later trial.

The court further held that Goldberg could not escape from the holding in Kastigar that use and derivative use immunity effectively eliminates any risk that a witness’ compelled testimony may be used against him at some future trial. Finally, the court stated:

We would be greatly troubled by what has happened here if the Government were seeking an indictment of Goldberg from the grand jury before which he is being asked to testify. But the Government represented to us in open court that the grand jury before which Goldberg has been directed to answer questions will not be asked to indict him.

The parallels between Goldberg’s and Liddy’s positions are obvious, and the Goldberg decision is therefore strong authority for the result we reach here.

Excluding “potential” defendants from the ambit of the immunity statute would undercut one of the primary functions of witness immunity: compelling persons suspected of criminal activity to yield information that will aid the grand jury in its investigation of such activity. As the Supreme Court stated in Kastigar:

The existence of [immunity] statutes reflects the importance of testimony, and the fact that many offenses are of such a character that the only persons capable of giving useful testimony are those implicated in the crime.

The court in Goldberg pointed out that the legislative history of section 6002 reflects Congress’ intention that the provision be employed by law enforcement agencies to obtain the testimony of the “agents” involved in a crime in order to discover and prosecute the “principal.” It is hardly surprising, then, that the weight of authority holds that a target or potential defendant may be compelled to testify before the grand jury investigating his alleged crimes.

We have concluded that even if Liddy could be categorized as a target or potential defendant before the grand jury, which is dubious, the District Court’s order to testify and subsequent contempt judgment would have to be affirmed.

III. CONCLUSION

For the reasons stated herein, the judgment of contempt against Liddy under 28 U.S.C. § 1826 is

Affirmed.

      . Appendix to Appellant’s Brief [hereinafter A.App.] at 20-21.

      . § 6002. Immunity generally
      Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to—
      (1) a court or grand jury of the United States,
      (2) an agency of the United States, or
      (3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House,
      and the person presiding over the proceeding communicates to the witness an order issued under this part, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.
      18 U.S.C. § 6002 (1970).

      . § 1826. Recalcitrant witnesses
      (a) AVhenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording or other material, the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information. No period of such confinement shall exceed the life of—
      (1) the court proceeding, or
      (2) the term of the grand jury, including extensions,
      before which such refusal to comply with the court order occurred, but in no event shall such confinement exceed eighteen months.
      (b) No person confined pursuant to subsection (a) of this section shall be admitted to bail pending the determination of an appeal taken by him from the order for his confinement if it appears that the appeal is frivolous or taken for delay. Any appeal from an order of confinement under this section shall be disposed of as soon as practicable, but not later than thirty days from the filing of such appeal.
      28 U.S.C. § 1826 (1970).

      . By order of 3 December 1973 the District Court extended the grand jury’s term to 4 June 1974. A further extension through 4 December 1974 was granted by order of 31 May 1974. Authority for these extensions was provided by Act of 30 November 1973, Pub.L.No.93-172, 87 Stat. 691.

      . 18 U.S.C. § 371 (1970).

      . 22 D.C.Code § 1801(b) (1970).

      . 18 U.S.C. § 2511 (1970).
      On 20, 25, and 26 July 1972 Liddy had appeared and testified before the grand jury. Although he invoked the privilege against self-incrimination in response to many of the questions put to him, no attempt was made to compel his testimony by granting him compulsory immunity.

      . This conviction is the subject of a separate appeal in this court. United States v. Liddy, No. 73-1565.

        Liddy’s co-defendant at trial, James W. McCord, Jr., was also convicted on all counts in which he was indicted. His appeal, United States v. McCord, No. 73-2252, is now pending before this court. Of the other persons named in the indictment with Liddy, Everette Howard Hunt, Jr., pleaded guilty to all the counts against him on 11 January 1973, and Bernard L. Barker, Eugenio R. Martinez, Frank A. Sturgis, and Virgilio R. Gonzalez entered guilty pleas to all indictment counts in which they were named on 15 January 1973. The District Court subsequently refused to allow these defendants to withdraw their guilty pleas, and they have appealed to this court. United States v. Hunt, No. 73-2199; United States v. Barker, No. 73-2185; United States v. Martinez, No. 73-2186; United States v. Sturgis, No. 73-2187; United States v. Gonzalez, No. 73-2188.

      . When asked by an Assistant United States Attorney whether it would be necessary to advise him of his rights under the Fifth and Sixth Amendments, Liddy responded, “Inasmuch as I am represented by my counsel who is present just outside the door of the grand jury I don’t believe that will be necessary.” Hearing Transcript (26 March) [hereinafter H.T. (26)] at 10, A.App. at 48. During his 26 March and 30 March appearances before the grand jury, Liddy frequently left the grand jury room to consult with his counsel.

      . Under this category of questions, Liddy was asked : when lie had signed out from the offices of the Finance Committee to Reelect the President (the Finance Committee) on the evening of 16 June 1972 (H.T. (26) at 10, A.App. at 48); whether he had been present at the Finance Committee headquarters on the evening of 16 June 1972 (H.T. (26) at 12, A.App. at 50); whether during May or June 1972 he had received logs of overheard telephone conversations from Alfred Baldwin or James McCord (H.T. (26) at 15-17, A. App. at 53-55); whether he had gone to Finance Committee headquarters on the morning of 17 June 1972 (H.T. (26) at 20, A.App. at 58); whether he had furnished anyone any information from logs of overheard conversations (H.T. (26) at 20, A.App. at 58); whether he had used the shredder at the Finance Committee headquarters on 17 June 1972 (H.T. (26) at 23, A.App. at 61).

      . On this general subject, Liddy was asked: whether he had met with McCord at Finance Committee headquarters on the evening of 16 June 1972 (H.T. (26) at 13, A.App. at 51); whether he had seen Hugh Sloan at the Finance Committee on 17 June 1972 (H.T. (26) at 20, A.App. at 58); whether during May or June 1972 he had discussed taps of DNC telephones with anyone (H.T. (26) at 21, A.App. at 59); whether he had discussed logs of overheard telephone conversations with anyone except his six co-defendants (H.T. (26) at 22, A.App. at 60); with whom he had discussed the Watergate break-in after 17 June 1972, other than his lawyer and co-defendants (H.T. (26) at 22-23, A.App. at 60-61).

      . Questions on this subject were: whether Liddy knew of anyone who had advance knowledge of the Watergate break-in (H.T. (26) at 18, A.App. at 56); whether anyone other than he and his six co-defendants had knowledge of the break-in (H.T. (26) at 19, A.App. at 57).

      . H.T. (26) at 19, A.App. at 57.

      . In several instances he also asserted the attorney-client privilege of his alleged client, E. Howard Hunt. However, at the hearing on the Government’s motion to grant Liddy immunity, the Goverment represented that Hunt had waived his attorney-client privilege with respect to 1972, and Hunt’s counsel confirmed this assertion. Hearing Transcript (30 March) [hereinafter H.T. (30)] at 16-17, A.App. at 80-81. The District Court implicitly rejected Liddy’s claim of attorney-client privilege by ordering him to testify. Liddy has not pressed this issue further.

      . H.T. (30) at 5-9, A.App. at 69-73.

      . H.T. (30) at 12-13, A.App. at 76-77.

      . A.App. at 8. This order was entered pursuant to the authority of 18 U.S.C. § 6003 (1970).

      . See notes 24-25 infra and accompanying text.

      . Liddy was again asked many of the questions put to him during his 26 March grand jury appearance. See notes 10-13 supra and accompanying text. In addition, Government attorneys questioned him on the following subjects: whether he had learned from any source what the purposes of the Watergate break-in were, Hearing Transcript (3 April) [hereinafter H.T. (3)] at 18, A.App. at 102 (The transcript of Liddy’s 30 March grand jury appearance was read to the District Court at the contempt proceeding on 3 April 1973. All references are to the transcript of the contempt proceeding.); when he had been employed at the Committee to Re-elect the President (CRP) and the Finance Committee to Re-elect the President (H.T. (3) at 20, 22, A.App. at 104, 106); who had interviewed and recommended him for his jobs at the CRP and the Finance Committee (H.T. (3) at 22, A.App. at 106); whether he knew what the purposes of the Watergate break-in were (H.T. (3) at 24, A.App. at 108); whether Hugh Sloan had transferred $192,000 to him and what he had done with any sums disbursed to him by Sloan (H.T. (3) at 25-26, A.App. at 109-10); whether Jeb Magruder had authorized any disbursements to Liddy by Sloan (H.T. (3) at 26, A.App. at 110); whether Sloan had turned over $89,000 worth of Mexican checks to Liddy (H.T. (3) at 27, A.App. at 111).

      . H.T. (3) at 15-16, A.App. at 99-100.

      . A.App. at 20.

      . A.App. at 22-23. The suspension of Liddy’s sentence is the subject of an appeal to this court in United States v. Liddy, No. 73-1564.

      . 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).

      . Section 6002 is set out in full in note 2 supra.

      . 406 U.S. at 462, 92 S.Ct. 1653, at 1666. In order to effectuate the protection conferred by section 6002, the Court held that a grant of use and derivative use immunity “imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.” Id. at 460, 92 S.Ct. at 1665.

      . 18 U.S.C. § 6002 (1970).

      . Brief for Appellant at 45, quoting 8 J. Wigmore, Evidence § 2251 (McNaughton rev. 1961).

      . Brief for Appellant at 44.

      . In United States v. Scully, 225 F.2d 113 (2d Cir.), cert. denied, 350 U.S. 897, 76 S.Ct. 156, 100 L.Ed. 788 (1955), the court stated:
      Upon closer examination, however, it becomes apparent that the principle which underlies the rule that the defendant in a criminal trial may refrain even from being sworn as a witness, has no application to proceedings before a Grand Jury.
      . . . “The purpose of the law [enabling defendants to testify at trial] was to make defendants competent witnesses, but at the same time preserve to them the right to remain silent without prejudice.” Wolfson v. United States, 5 Cir., 1900, 101 F. 430, 436, certiorari denied, 1901, 180 U.S. 637, 21 S.Ct. 919, 45 L.Ed. 710. This led to the rule that a defendant may not be called as a witness by the prosecution, for if he were sworn and thus forced in open court to refuse to answer questions on the ground that the answers might incriminate him, the “option of refusal,” to which Professor Wigmore alludes, would be diluted. It would be difficult thereafter to take effective steps to prevent a jury, charged with the responsibility of determining the guilt or innocence of the accused, from inferring guilt from the assertion of the consitutional privilege. The result thus arrived at avoids, as it should, any encroachment upon the rights guaranteed by the Fifth Amendment. See Wolfson v. United States, supra.
      These considerations do not apply to the inquisitorial proceedings of a Grand Jury. Such a body is not charged with the duty of deciding innocence or guilt and, for this reason, its proceedings have never been conducted with the assiduous regard for the preservation of procedural safeguards which normally attends the ultimate trial of the issues. Thus, in such proceedings, there is no right to counsel, no right of confrontation, no right to cross-examine or to introduce evidence in rebuttal and ordinarily no requirement that the evidence introduced be only such as would be admissible upon a trial.
      225 F.2d at 115-116 (footnote omitted). Other cases in which courts have recognized the distinction between a defendant at trial and an accused before the accusing grand jury include United States v. Cleary, 265 F.2d 459, 460-461 (2d Cir.), cert. denied, 360 U.S. 936, 79 S.Ct. 1458, 3 L.Ed.2d 1548 (1959); In re Certain Proceedings Before the 1959 Grand Jury, 212 F.Supp. 823, 826 (N.D.Ill.1963).

      . See Jones v. United States, 119 U.S.App.D.C. 284, 289, 342 F.2d 863, 868 (1964) (en banc) (Edgerton, Bazelon, Faliy, Wright, J.T., minority view); United States v. Lawn, 115 F.Supp. 674 (S.D.N.Y.1953); Meshbesher, Right to Counsel Before Grand Jury, 41 F.R.D. 189, 202 (1986); Note, Self Incrimination by Federal Grand Jury Witnesses: Uniform Protection Advocated, 67 Yale L.J. 1271, 1274 (1958). In United States v. Lawn, supra, the District Court dismissed felony indictments returned against the defendants by a grand jury before which the defendants had been subpoenaed to testify while informations charging misdemeanors were pending against them. The court held:
      [A]n indictment is invalid if a defendant against whom a criminal information has been filed, is called by the prosecution as a witness before the grand jury to obtain evidence tending to sustain an indictment against him, which supersedes the earlier information.
      115 F.Supp. at 677. While an appeal of this dismissal was pending, the Government instituted a new grand jury investigation, which resulted in the re-indictment of the defendants. Defendants appealed their subsequent convictions on the ground that the trial court had denied them due process by refusing to hold a hearing to determine whether any of the tainted testimony or evidence produced before the first grand jury, or evidence derived therefrom, had been used by the second grand jury. The Supreme Court held that the defendants were not entitled to such a hearing because 1) they had not laid a sufficient factual foundation to justify a protected hearing and 2) “an indictment returned by a legally constituted nonbiased grand jury . . . , if valid on its face, is enough to call for a trial of the charge on the merits and satisfies the requirements of the Fifth Amendment.” Lawn v. United States, 355 U.S. 339, 349, 78 S.Ct. 311, 317, 2 L.Ed.2d 321 (1958). A minority of this court sitting en banc in Jones v. United States, supra, intimated that the Supreme Court’s Lawn decision had “perhaps” implicitly approved the earlier District Court holding that “talcing [an accused] before the grand jury without his consent and asking him anything violates his privilege.” 119 U.S.App.D.C. at 289, 342 F.2d at 863. Liddy relies on this statement from Jones in his brief at 56. However, the Supreme Court in Lawn explicitly recognized that the District Court’s dismissal of the first grand jury’s indictments was a final decision that had not been upset on appeal. 355 U.S. at 348, 78 S.Ct. 311. Thus, the Court was precluded from questioning the merits of the District Court’s earlier decision, and nothing in Lawn can be read as more than this.

      . For a discussion of the problems allegedly posed by the fact that Liddy’s conviction is pending on appeal and that he may be retried in the event his conviction is reversed, see Part II. B. infra.

      . 249 F.2d 371 (1957).

      . Id. at 375.

      . 364 U.S. 507, 81 S.Ct. 260, 5 L.Ed.2d 249 (1960).

      . Id. at 513. Other cases lend direct support to the proposition stated in Romero. United States v. Johnson, 488 F.2d 1206, 1209 (1st Cir. 1973); United States v. Skolek, 474 F.2d 582, 585 (10th Cir. 1973); United States v. Mobley, 421 F.2d 345, 351 n. 5 (5th Cir. 1970); United States v. Hoffman, 385 F.2d 501, 504 (7th Cir. 1967), cert. denied, 390 U.S. 1031, 88 S.Ct. 1424, 20 L.Ed.2d 288 (1968); United States v. Tinney, 340 F.Supp. 1146, 1152 (E.D.Pa.1972), rev’d on other grounds, 473 F.2d 1085 (3d Cir.), cert. denied, 412 U.S. 928, 93 S.Ct. 2752, 37 L.Ed.2d 156 (1973). See also Hale v. Henkel, 201 U.S. 43, 67, 26 S.Ct. 370, 50 L.Ed. 652 (1906) (“[I]f the criminality has already been taken way, the Amendment ceases to apply.”); Annot., 9 A.L.R.3d 990, 996 (1966).

      . See notes 23-25 supra and accompanying text.

      . 120 U.S.App.D.C. 392, 347 F.2d 486 petition for cert. dismissed, 382 U.S. 923, 86 S.Ct. 317, 15 L.Ed.2d 338 (1965).

      . Id. 120 U.S.App.D.C. at 397, 347 F.2d at 491.

      . Act of 19 June 1934, ch. 652, § 409 (i), 48 Stat. 1097, repealed. Act of 15 October 1970, Pub.L.No. 91-452, § 242, 84 Stat. 930.

      . The Supreme Court intimated disfavor with the Frank holding in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) when, after citing Frank, it stated:
      In relevant part, § 409(1) substantially repeats the language of the Compulsory Testimony Act of 1893, 27 Stat. 443, 49 U.S.C. § 46, which was Congress’ response to this Court’s statement that an immunity statute can supplant the Fifth Amendment privilege against self-incrimination only if it affords adequate protection from future prosecution or conviction. Counselman v. Hitchcock, 142 U.S. 547, 585-586 [12 S.Ct. 195, 35 L.Ed. 1110]. The statutory provision here involved was designed to provide such protection, see Brown v. United States, 359 U.S. 41, 45-46 [79 S.Ct. 539, 3 L.Ed.2d 609], not to confer immunity from punishment pursuant to a prior prosecution and adjudication of guilt. Cf. Beina v. United States, 364 U.S. 507, 513-514 [81 S.Ct. 260, 5 L.Ed.2d 249],

        Id. 389 U.S. at 349 n. 3, 88 S.Ct. at 510 (emphasis supplied).

      . 406 U.S. at 453, 92 S.Ct. at 1661. (footnote omitted) (emphasis original).

      . 464 F.2d 709.

      . Pursuant to 18 U.S.C. § 2514 (1970), which has been repealed effective four years following the sixtieth day after enactment of Act of 15 October 1970, Pub.L.No.91-452, |§ 227(a), 260, 84 Stat. 930, 931.

      . 464 F.2d at 712. The court was careful to state:
      We emphasize, however, as the Supreme Court did in Kastigar, that the Fifth Amendment requires not only that the cornpelled testimony not be used against the witness but imposes a “total prohibition on use . . . barring the use of compelled testimony as an ‘investigatory lead,’ and also barring the use of any evidence obtained by focusing investigation on a witness as a result of his compelled disclosure.” 92 S.Ct. 1664.

        Id. 464 F.2d at 712-713.

      . Id. at 713-714.

      . Liddy was so characterized by a Government prosecutor at the 26 March 1973 hearing on the Government’s motion to grant Liddy immunity. H.T.(26) at 7, A.App. at 45.

      . 119 U.S.App.D.C. 284, 342 F.2d 863 (1964).

      . Id. 119 U.S.App.D.C. at 289, 342 F.2d at 868 (Edgerton, J., with whom Bazelon, C. J., Fahy and Wright, JJ., joined) (footnote omitted). In support of their position, the four judges cited the following language from Powell v. United States, 96 U.S.App.D.C. 367, 226 F.2d 269 (1955):
      “No doubt it would be a boon to prosecutors if they could summon before a Grand Jury a person against whom an indictment is being sought and there interrogate him, isolated from the protection of counsel and presiding judge and insulated from the critical observation of the public. But there is a serious question whether our jurisprudence, fortified by constitutional declaration, permits that procedure.”
      119 U.S.App.D.C. at 288, 342 F.2d at 867, quoting 96 U.S.App.D.C. at 372, 226 F.2d at 274. This language was dictum since the sentence immediately following it in Powell was, “However, in the view which we take of the case at bar, we do not reach this constitutional question, avoiding it as we should when it is possible to do so.” 96 U.S.App.D.C. at 372, 226 F.2d at 274.

      . Four of the eleven judges who sat in Jones (Edgerton, Bazelon, Fahy, and Wright) adhered to this position, while four (Pretty-man, Miller, Dannher, and Bastían) expressly rejected it. 119 U.S.App.D.C. at 301-303, 342 F.2d at 880-882. Judge Burger expressed general agreement with the Pretty-man group’s views. Id. at 314, 342 F.2d at 893. The holding of the court with respect to the legality of compelling the appellant to testify before the grand jury that subsequently indicted him was determined by the intermediate position of Judges McGowan and Washington. They stated that “the taking of this particular defendant before the grand jury, without his first having the benefit of consulation with counsel, was extraordinary in its disregard of the realities of the situation, as well as of the customary practice.” Id. at 294 n. 18, 342 F.2d at 873 n. 18. Two aspects of this analysis should be noted: 1) it does not suggest that taking a target defendant before the grand jury violates his Fifth Amendment privilege, but only that it ignores “the realities of the situation, as well as the customary practice2) the analysis rests in part on the failure of the Government to give appellant’s counsel advance notice of his client’s impending grand jury appearance. The latter is significant because Liddy’s counsel was available for consultation outside the grand jury room at all times during Liddy’s grand jury appearances on 26 and 30 March.
      Judges McGowan and Washington refused to accept the remedy proposed by Judges Edgerton, et ah, who advocated dismissing appellant’s indictment. Rather, they suggested that the case be remanded for a hearing at which the District Court was “to inform itself fully and accurately as to what the evidence was upon which the indictment can be said to have rested, and then to decide whether there was a foundation for it apart from that supplied solely by means of the defendant’s personal appearance before the grand jury.” Ibid. The effect of this approach is that if the Government calls a target or potential defendant to testify before a grand jury, the grand jury can then indict him only on the basis of evidence other than that supplied by his testimony. This, in effect, is a rule of automatic use immunity such as that formally conferred upon Liddy for his grand jury appearance. See also People v. Laino, 10 N.Y.2d 161, 176 N.E.2d 571, 218 N.Y.S.2d 647 (1961); People v. Leto, 70 Misc.2d 218, 334 N.Y.S.2d 303 (Albany Cty.Ct.1972). The McGowan-Washington result became the holding in Jones when the Edgerton group joined in it as a means of assembling a majority for one disposition. Thus, even assuming Liddy was a target or potential defendant before the Watergate grand jury, that he was granted use and derivative use immunity and had counsel available for consultation satisfied any requirements established by the holding in J ones.

      It should further be noted that the court’s action in Jones was predicated upon the court’s supervisory powers over the administration of criminal justice in the District of Columbia. The court may have taken this route in recognition of the Supreme Court decisions suggesting that a grand jury may return a valid indictment even though it has received unconstitutionally obtained evidence or evidence that would be inadmissible at trial under basic rules of evidence. See United States v. Blue, 384 U.S. 251, 255 & n. 3, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966); Lawn v. United States, 355 U.S. 339, 349-350, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958); Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956); Note, 67 Yale L.J. supra, note 30, at 1282-83. But see Goldberg v. United States, 472 F.2d 513, 516 n. 4 (2d Cir. 1973).

      . This confession was held inadmissible because it was obtained in violation of Fed.R.Crim.P. 40(b), and appellant’s conviction, as well as that of his co-defendant, was reversed.

      . H.T. (26) at 6, A.App. at 44; H.T.(30) at 12-13, A.App. at 76-77. The Government renewed these disclaimers in this court. Brief for the United States at 9-10.

      . There is respectable authority suggesting that this may make it constitutionally impermissible further to prosecute Liddy for Watergate crimes. See Ashe v. Swenson, 397 U.S. 436, 448, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) (Brennan, T., concurring, joined by Black and Douglas, JJ.).

      . 472 F.2d 513 (2d Cir. 1973).

      . Id. at 515. Note that Goldberg’s position was stronger than Liddy’s since a criminal complaint charging him with crimes into which the grand jury was inquiring was still pending when he was called before the grand jury. In contrast, Liddy had already been convicted and sentenced for Watergate crimes when the grand jury summoned him.

      . Ibid. (emphasis supplied).

      . Id. at 516 (emphasis supplied).

      . 406 U.S. at 446, 92 S.Ct. at 1656. Bee also United States v. Sweig, 441 F.2d 114, 121 (2d Cir.), cert. denied, 403 U.S. 932, 91 S.Ct. 2256, 29 L.Ed.2d 711 (1971); Note, 67 Yale L.J., supra note 30, at 1277-78.

      . 472 F.2d at 515, citing Hearings on H.R. 11157 and H.R. 12041 Before Subcomm. No. 3 of the House Comm. on the Judiciary, 91st Cong., 1st Sess. 42 (1970).

      . United States v. Friedman, 445 F.2d 1076, 1088 (9th Cir.), cert. denied, 404 U.S. 958, 92 S.Ct. 326, 30 L.Ed.2d 275 (1971); United States v. Sweig, 441 F.2d 114, 121 (2d Cir.), cert. denied, 403 U.S. 932, 91 S.Ct. 2256, 29 L.Ed.2d 711 (1971); Cardarella v. United States, 375 F.2d 222 (8th Cir.), cert. denied, 389 U.S. 882, 88 S.Ct. 129, 19 L.Ed.2d 176 (1967); Kitchell v. United States, 354 F.2d 715, 720 (1st Cir. 1965), cert. denied, 384 U.S. 1011, 86 S.Ct. 1970, 16 L.Ed.2d 1032 (1966); United States v. Winter, 348 F.2d 204 (2d Cir.), cert. denied, 382 U.S. 955, 86 S.Ct. 429, 15 L.Ed.2d 360 (1965); United States v. Cefalu, 338 F.2d 582, 583-584 (7th Cir. 1964); United States v. Cleary, 265 F.2d 459 (2d Cir.), cert. denied, 360 U.S. 936, 79 S.Ct. 1458, 3 L.Ed.2d 1548 (1959); United States v. Scully, 225 F.2d 113 (2d Cir.), cert. denied, 350 U.S. 897, 76 S.Ct. 156, 100 L.Ed. 788 (1955). See also Grunewald v. United States, 353 U.S. 391, 423, 77 S.Ct. 91, 1 L.Ed.2d 74 (1957); Meshbesher, supra note 30, 41 F.R.D. at 202; Comment, The Grand Jury Witness’ Privilege Against Self-Incrimination, 62 Nw.U.L.Rev. 207, 223-24 (1967).
      Note here that we are not compelled to decide what action we might take were Liddy to comply with the District Court order to testify before the 5 June 1972 grand jury and were that grand jury subsequently to indict him for crimes related to his testimony. See notes 49-51 supra and accompanying text and text accompanying note 56 supra.

      . Liddy further argues that the first clause of the Fifth Amendment, “No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment, of a grand jury . . . . , protects him from being “held to answer” before the grand jury in the absence of an indictment against him. However, the phrase “held to answer” in the Fifth Amendment clearly means “brought to trial” or “prosecuted.” The Supreme Court in Ex parte Wilson, 114 U.S. 417, 5 S.Ct. 935, 20 L.Ed. 89 (1885), interpreted the indictment clause of the Fifth Amendment as follows:
      When the accused is in danger of being subjected to an infamous punishment if convicted, he has a right to insist that he shall not be put upon his trial, except on the accusation of a grand jury.

        Id. at 426, 5 S.Ct. at 939 (emphasis supplied). Moreover, grand jury investigations would be thwarted if a witness could not be called until he had been indicted. See United States v. Dionisio, 410 U.S. 1, 15-16, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Mara, 410 U.S. 19, 48, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973) (Marshall, J., dissenting); Hale v. Henkel, 201 U.S. 43, 65, 26 S.Ct. 370, 50 L.Ed. 652 (1906).


text:
    Virginia J. MARCH et al., Appellants, v. UNITED STATES of America. Virginia J. MARCH et al. v. UNITED STATES of America, Appellant.
    Nos. 72-1816, 72-2062.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Nov. 1, 1973.
    Decided Nov. 12, 1974.

      Isaac N. Groner, Washington, D. C., with whom Alan Y. Cole and Charles R. Both, Washington, D. C., Earl C. Berger, Paris, France, were on the brief, for appellants in No. 72-1816 and appellees in No. 72-2062.
    Edwin E. Huddleson, Atty., Dept, of Justice, with whom Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, and Walter H. Fleischer, Atty., Dept, of Justice, were on the brief, for appellants in No. 72-2062 and appellee in No. 72-1816. Morton Hollander, Atty., Dept, of Justice, and John A. Terry and James M. Hanny, Asst. U. S. Attys., also entered appearances for appellant in No. 72-2062 and appellee in No. 72-1816.
    Before FAHY, Senior Circuit Judge, and ROBINSON and. WILKEY, Circuit Judges.
   SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

Virginia March and six other teachers brought this class action in the District Court to challenge the methods used by the Department of Defense in fixing basic salaries and other compensation for teachers employed in its Overseas Dependents Schools (ODS) system. Briefly, the teachers allege that, in violation of the Overseas Teachers Pay and Personnel Practices Act, the Department (1) computes annual salaries on the basis of the preceding year’s wages, rather than the current year’s wages, for similar teaching positions in the United States; (2) places teachers in lower salary steps than they would have been placed in comparable school districts in the United States; (3) limits credit for past teaching experience to two years; (4) makes no allowances for compensatory time; and (5) calculates the daily rate of compensation, for teachers paid on a daily basis, on a 210-day school year rather than the usual 180 or 190 days. The Department concedes that its computations are performed substantially as alleged by the teachers.

In particular, the teachers claim that these practices are inconsistent with' Sections 4(a)(2) and 5(c) of the Act, which direct Department authorities to fix the “basic compensation for teachers and teaching positions at rates equal to the average of the range of rates of basic compensation for similar positions of a comparable level of duties and responsibilities in urban school jurisdictions in the United States of 100,000 or more population.” The teachers asked for an injunction restraining the practices complained of, and for back pay assertedly due in accordance with the Act since April 14, 1966.

There were no disputed issues of material fact, and the District Court disposed of the case on cross-motions for summary judgment. The court granted judgment for the teachers on only one of their claims, finding that the Department’s policies of limiting credit for prior teaching experience to two years, and of placing ODS teachers in lower steps than they would have been placed in domestic school districts of 100,000 or greater population, violated the Act. As to the rest of the issues, the court granted judgment for the Government, holding that computation of annual salaries on the basis of salaries in the preceding year was consistent with the Act, and that the remaining practices challenged were reasonable exercises of discretion. The court permanently enjoined the Government from refusing to place and compensate ODS teachers in the steps most closely comparable to those in which they would have been placed in school districts in the United States; on motion by the Government, this injunction was stayed pending appeal to this court. The court denied the teachers’ prayer for damages representing back pay.

The Government appeals from the judgment in favor of the teachers; the teachers appeal the District Court’s determinations on the balance of the issues in favor of the Government. From our reading of the Act and related materials, discussed below, two factors stand clearly at odds with the District Court’s disposition of certain issues adversely to the teachers — the unquestionably plain language of the statutory provisions central to the controversy, and the express congressional purpose of a 1966 amendment to the Act. We are thus constrained to reverse the court’s judgment in part, affirm it in part, and remand the case for further proceedings.

I. HISTORICAL BACKGROUND

A. The Period Prior to 1959

Shortly after World War II, the United States established the Overseas Dependents Schools to provide educational facilities abroad for dependents of military and civilian personnel. The ODS system, we are told, is the ninth largest American school system, with over 180,-000 students and approximately 7,000 teachers.

Until 1959, ODS teachers were subject to the civil service laws and regulations. The application to ODS teachers of those general provisions, designed for federal civil servants who worked a regular twelve-month year, created a number of economic inequities. Like stateside teachers, they worked the traditional nine- to ten-month school year. Unlike stateside teachers, however, they could not be paid during the summer months, or the Thanksgiving, Christmas or Easter recess periods, nor could their salaries reflect “their academic background and qualifications, in accordance with the general practice in the United States.” As a result, the annual compensation of ODS teachers was substantially below that of their stateside counterparts. Congress sought to correct this situation by enactment in 1959 of legislation specifically addressing the Department’s practices respecting overseas teachers.

B, The 1959 Overseas Teachers Pay and Personnel Practices Act

The Senate report accompanying the bill that became the Act stated that the purpose of the bill was

to provide a system of personnel administration for schoolteachers and certain school officers and other employees of the dependents schools operated by the Department of Defense in oversea areas comparable to the systems found in the majority of the public primary and secondary school jurisdictions in the United States.
The proposed system recognizes and corrects deficiencies in the present system which the Department of Defense has identified and which long have been apparent.

To remedy the deficiencies in compensation we have noted, the Act originally provided that ODS teachers were to be paid “in relation to the rates of basic compensation for similar positions in the United States.” The Department, pursuant to the Act, promulgated regulations to “conduct the employment and salary practices applicable to teachers and teaching positions ... in accordance with [the] Act . . . The only .specific standard in the Act to guide the Department was a provision that the basic compensation for ODS teachers could not exceed the highest rate of basic compensation for public school teachers in the District of Columbia.

In addition to the published regulations, the Department established two procedures that cemented the ODS teachers’ annual wage rate considerably below that paid to stateside teachers. First, since Congress had limited appropriations for ODS to a specific amount per student, the Department interpreted the “in relation to” language of the Act as limiting the teachers’ salaries by this “per pupil limitation.” Second, because Bureau of the Budget regulations prohibited federal agencies from budgeting for anticipated increases in wages or salaries based on prevailing rates outside the Federal Government, the Department calculated the teachers’ annual salaries by the preceding year’s rate. The former policy has been discontinued, but the latter is still a key element of the Department’s computation scheme.

The teachers challenged the Department’s interpretation, arguing that the Act required it “to take periodic action to raise [the teachers’] salaries to levels equal to those prevailing in the United States . . . The Department answered that it was restricted by the per pupil limitation. This dispute resulted in a series of legal battles in which the courts uniformly upheld the Department’s construction and its related practices. The historical posture of the case at bar was significantly altered, however, in 1966 when Congress again tried to bring ODS teachers’ pay in line with salaries for teaching in comparable school districts in the United States.

C. The 1966 Amendment

In 1965, two congressional subcommittees held hearings, on a proposed amendment to the Act, that clearly and indisputably showed that ODS teachers were not receiving the compensation Congress had intended to provide. In fact, in some respects the teachers had fared worse under the Act than they would have under the civil service laws and regulations. The House Committee on Post Office and Civil Service reported:

The Post Office and Civil Service Committee and the Congress understood that in enacting [the Act] they were providing a firm and reasonable formula for the payment of appropriate salaries to overseas teachers. That understanding has not proved out. [The proposed amendment] provides a standard which, although variable in amount, is positive because the precise dollar amounts in question are readily ascertainable. . . . The bill then goes on to direct and require that the overseas teachers shall be paid salaries determined by the standard.

The Committee further enunciated the purpose of the proposed amendment:

[T]o establish a positive, reasonable, and fully effective legislative policy with respect to rates of compensation which shall be paid to teachers in the overseas dependents school system of the Department of Defense, under which policy the Department of Defense and the three military departments shall and must pay such teachers salary rates equal to the average range of salaries paid teachers having comparable levels of duties and responsibilities in urban school jurisdictions in the United States of 100,000 or more population. This policy, and the mandatory payment of such equal salary rates, is consistent with, and will strengthen, the policy laid down by the Congress in the enactment of the Defense Department’s Overseas Teachers Pay and Personnel Practices Act (Public Law 86-91), which thus far has not been effectuated in accordance with congressional intent

The amendment, enacted in 1966, provided that ODS teachers were no longer to be paid “in relation to the rates of basic compensation for similar positions in the United States”; rather, they were to receive salaries “equal to” those of a defined class of teachers. Congress thus delineated a compensatory scheme for ODS teachers that would put them on a par with stateside teachers. Perhaps Congress also hoped to end the perennial feud between the Defense Department and its corps of educators but, as this case illustrates, the dispute is still very much alive.

In our view, as discussed below, the clear purpose of the 1966 amendment was to guarantee ODS teachers the same salaries they would receive for performing the same duties in stateside schools. Indeed, it is difficult to read the Act any other way.

II. ELUCIDATING THE ACT

When a court construes a statute, the starting point must be the language of the statute. We have carefully examined the Overseas Teachers Pay and Personnel Practices Act and conclude that basic compensation for ODS teachers is to be calculated on a parity with basic compensation for teachers in the United States. It is well settled that “[w]here the language is plain and admits of no more than one meaning, the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion.”

To be sure, as the Government argues, this “plain meaning rule” does not “preclude consideration of persuasive evidence if it exists.” The Supreme Court has warned that

words are inexact tools at best and for that reason there is wisely no rule of law forbidding resort to explanatory-legislative history no matter how “clear the words may appear on ‘superficial examination.’ ”

In our opinion, this admonition merely underscores the importance of construing this statute, if possible, to give effect to the congressional purpose. The Government has briefed in great detail the legislative history of the 1966 amendment and argues that it establishes that the Defense Department’s interpretation is consistent with the “congressional understanding.” The teachers, although they rely primarily on the plain meaning of the Act, have also briefed the legislative history in no less exhausting detail and argue that it fully supports their construction.

The strong support that the Government and the teachers respectively find in the hearings and congressional debates reinforces our conviction that this aspect of the legislative history is at most ambiguous and contradictory, and therefore should be ignored in favor of an application of the clear and precise statutory language and purpose here involved. Indeed, “this is a case for applying the canon of construction of the wag who said, when the legislative history is doubtful, go to the statute.”

The Government also argues that the congressional reports establish the validity of the Department’s application of the Act. We disagree. The reports demonstrate a congressional intent consistent with the unequivocal statutory language, which we find in some respects inconsistent with the current application of the Act.

Recognizing the clarity with which Congress has expressed itself, we must determine whether present compensatory practices are consistent with the statute and the purpose it was enacted to carry out. Our duty in this regard, to paraphrase the Supreme Court, is to place the statute and current practice side by side and see if the latter squares with the former.

III. TESTING THE DEPARTMENT’S COMPENSATORY PRACTICES AGAINST THE STATUTORY LANGUAGE

A. Computation of Salaries Based on the Preceding Year’s Rate

The Defense Department calculates the teachers’ current annual salaries by using the preceding year’s salaries for stateside teachers of the class defined by the Act. We hold that this practice violates the statutory mandate that ODS teachers are to be compensated “at rates equal to the average of the range of rates of basic compensation for similar positions of a comparable level of duties and responsibilities in urban school jurisdictions in the United States of 100,000 or more population.”

As the Government points out, the statutory language does not expressly designate the stateside salary year to be utilized in applications of the statutory formula. It is well settled, however, that words in a statute will be read according to their common usage, absent a contrary indication. Surely the term “equal to,” as it is commonly used and understood, means equivalent to a present component, rather than past or future. If Congress had intended to key ODS teachers’ salaries to the preceding year’s salaries for stateside teachers, it could easily have specified such a standard. Here Congress used the phrase “equal to” without qualification and, lacking manifestation of a different intent, we think temporal as well as monetary equality was contemplated.

We are no more impressed by the Government’s assertion that the Department’s interpretation of the Act should be accepted because it was adopted by the agency charged with principal responsibility for administering the Act. We note initially that administrative construction of the statutory language under scrutiny in no way drew upon the experience or expertise of the Defense Department. The interpretative problem before the Department was the meaning of statutory language pertinent to a matter completely outside its field of specialty, but well within the area entrusted to the courts. “Administrative construction is less potent than it otherwise would be where it does not rest upon matters peculiarly within the administrator’s field of expertise.”

Moreover, the Department’s interpretation could hardly lay claim to the presumption of accuracy that courts frequently accord to an ageny’s construction of a law it is legislatively empowered to oversee. When it enacted the 1966 amendment, Congress made known its displeasure with the Department’s failure to carry out the purpose underlying the Act in original form; indeed, the amendment was a direct response to that failure. The House Report accompanying the bill that eventuated as the 1966 amendment stated:

The Committee on Post Office and Civil Service is deeply concerned at the treatment that has been accorded the overseas school teachers — a concern shared, it is believed, by many other Members of Congress — particularly in view of the obvious failure to administer the salary provisions of [the original Act] as they were intended and expected by the committee and the Congress to be administered. Without attempting to place the blame, and whether it be due to administrative unwillingness to shoulder the burden of obtaining necessary funds or disagreement with the policies of [the original Act], it certainly is essential that the problem be resolved without further delay.

It is clear enough to us that here “the legislature itself has responded to [the Department’s] past interpretation and administration of the legislation with severe censure,” and that “[t]he general presumption that the agency has correctly discerned and implemented the intent of the legislature[] would seem singularly inappropriate.”

Perhaps even more importantly, “□judicial obeisance to administrative action cannot be pressed so far” as to justify adoption of an administrative construction that “flies in the face of the purposes of the statute and the plain meaning of its words.” To accept the Department’s interpretation respecting the stateside salary year on which ODS teachers’ salaries are to be computed would be to foresake the unmistakable mission of the Act. We recognize that there is some authority for the Government’s position in the congressional debates and hearings but, on the whole, this aspect of the legislative history is far from conclusive. We find the Act and the committee reports clear and unequivocal as to the intent of Congress, and our duty is to give that intent full effect.

B. Salary Grades, Steps and Prior Teaching Experience

Salaries in both the ODS and the stateside systems are classified by grades and, within each grade, are graduated by steps corresponding to prescribed qualifications and experience. In placing teachers at particular levels the Defense Department limits credit for prior teaching experience to two years, regardless of the quantum of actual pri- or experience. The teachers also allege that the Department limited the number of steps and assigned lower values to each step in violation of the Act.

The teachers claim that the “equal to” language of the statute applies to all elements of the teachers’ compensation and prohibits current Department procedures. The Government responds that many of these practices are not subject to the “equal to” standard, but rather are committed to the Department’s discretion by other provisions. Although we do not agree with the teachers’ position that all facets of their compensation are subject to the requirement of equality with stateside teachers, we do think salary grade, steps and credit for past teaching experience are essential ingredients of “basic compensation,” and therefore are covered by the “equal to” mandate of the Act.

Again, the focal point of the controversy is the meaning of the statutory language — “at rates equal to the average of the range of rates of basic compensation for similar positions of a comparable level of duties and responsibilities in urban school jurisdictions in the United States of 100,000 or more population.” The Act undisputably obligates the Department to determine the “average of the range of rates” in the school districts specified. Once the average in those districts is determined, we think salary grades and steps for ODS teachers — which in the final analysis determine their basic annual wage— must match this average grade by grade and step by step. The House report makes this meaning clear:

The effect of the reported bill is to require that salaries paid teachers in the Department of Defense Overseas Dependents School System be equal to the average of the minimum, intermediate and maximum rates paid teachers holding positions of comparable levels of responsibility in urban school jurisdictions of 100,-000 or more population in the United States, including the same average number of salary steps.

This language echoes the plain import of the statutory language, which, as Congress intended, leaves “no room for the substitution of independent views or judgments by any Federal civilian or military official.” The Act thus requires the Department to give ODS teachers credit for prior experience on the same basis that such credit is accorded teachers in the specified stateside districts. Beyond that, the number of steps, the value of each step and the qualifications therefor must, as closely as practicable, equal the average for the specified districts.

The Government argues that the Department’s practices with respect to these' matters are incidental, and therefore within its discretion. It also states that its “practice for crediting past teaching experience is part of a system ‘designed to produce a reasonable, simple, and understandable compensation program.’ ” Unless “basic compensation” is a term of art in the education field, for which no evidence is presented to us, this argument is unpersuasive. The Government would apparently have us believe that ODS teachers have only passing interest in their initial salary grades and steps, but we cannot accept this proposition. No more for overseas teachers than for administrative bureaucrats can we imagine a view that qualifications for federal grade levels and steps are just “incidental” to basic salaries.

Perhaps the Defense Department has constructed a simple and easily administered compensation program for ODS teachers, but neither fondness for simplicity nor an unwarranted interpretation of “basic compensation” can be permitted to frustrate the ordinary and natural meaning of the statutory language and the manifest purpose of Congress to place ODS teachers on a par with their stateside counterparts. We hold that the Department’s construction of the Act in the respects discussed is clearly at odds with the intent behind the 1966 amendment.

C. Daily Rates of Compensation

The teachers also challenge the Department’s practice of computing daily rates of compensation on the basis of a school year of 210 days rather than the normal school year of 180 to 190 days. The Government argues that this procedure falls within the discretion of the Defense Department under Section 4(a)(7) to prescribe regulations governing “the length of the school year or school years applicable to teaching positions.”

This provision certainly confers discretion in determining the length of the school year but, with equal certainty, that discretion must be exercised in a reasonable manner and consistently with congressional expressions in the statute. The Department’s present method of computing the daily rate does not comport with these criteria.

Current departmental regulations provide that the school year for ODS teachers “will consist of not more than 190 working days.” In computing ODS teachers’ daily rate of compensation, however, the Department uses a 210-day school year, derived from the number of calendar days in the school year, excluding Saturdays and Sundays but including Christmas and Easter recesses. There is no evidence in the record to indicate that this method of calculation has ever been used in any of the school districts referred to in the Act.

We think this practice is condemned by the requirement of equality defined in the Act, because the daily wage rate is an integral part of “basic compensation.” All elements of 'basic compensation are governed by the statutory equality mandate, and the manifest purpose of the Act is to put ODS teachers and teachers in the United States on the same plane. It is our understanding that stateside districts predicate all computations on actual working days— between 180 and 190 per year — and the Act requires the same of the Department.

D. Compensatory Time

The teachers also complain that the Department’s regulations do not provide for allowances of compensatory time in the ODS system, while such allowances exist in similar positions in stateside schools. It may be that stateside teachers accumulate compensatory time for such activities as attending PTA meetings, lesson preparation and grading papers. We hold, however, that these aspects of compensation are not part of “basic compensation” under Sections 4 (a)(2) and 5(c), but rather are committed to the Department’s discretion under Sections 4(a)(8) and 4(a)(9) dealing with “the leave system” and “additional compensation.” Accordingly, this aspect of the District Court’s judgment will not be disturbed.

IY. THE TEACHERS’ RIGHT TO DAMAGES

As we noted above, the District Court found the Department’s practices inconsistent with the statutory-scheme in one respect. The court granted the teachers injunctive relief on that count, but denied their claim for back pay damages.

The trial court gave no reason for denying the teachers’ prayer for damages, and we are unable to discern any sound reason to support the denial. The teachers had a statutory right to receive the pay they now demand as damages. As a direct result of the Department’s erroneous interpretation and application of the Act, they have suffered a recognizable legal injury. In addition to an injunction against the condemned practices, they should receive what has been rightfully and legally theirs since April 14, 1966. As the Supreme Court has declared, “[a] disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied.”

V. CONCLUSION

The results we reach today are required by the language and purpose of the Act. Congress has twice tried to equalize the salaries of ODS and stateside teachers; the disparity in salaries has also been expressly condemned in committee reports. The basic compensation of ODS teachers, however, is still significantly below that of stateside teachers. We hope this decision will finally resolve a dispute that has already lasted far too long.

For the reasons stated in this opinion, we affirm the judgment granted in favor of the teachers. The judgment for the Government is reversed as to the calculation of salaries based on the preceding year, the computation of daily rates based on a 210-day year and the denial of damages. The balance of the judgment of the District Court is affirmed. The case is remanded to the District Court for further proceedings consistent with this opinion.

So ordered.

      . The class comprises approximately 19,500 teachers employed after April 14, 1966 by the Department in its Overseas Dependents Schools. Jurisdiction in the District Court was invoked under the Tucker Act, 28 U.S.C. § 1346(a)(2) (1970), as a “civil action or claim against the United States, not exceeding $10,000 in amount, founded . . . upon [an] . . . Act of Congress. . . . ” In a class action such as this, jurisdiction thereunder turns, not upon the aggregate amount of the claims the members of the class, but upon the amounts claimed individually by those members. Brown v. United States, 365 F.Supp. 328, 338 n. 5 (E.D.Pa. 1973); Northern Natural Gas Co. v. Grounds, 292 F.Supp. 619, 644 (D.Kan.1968), rev’d on other grounds, 441 F.2d 704, cert. denied, 404 U.S. 951, 92 S.Ct. 268, 30 L.Ed.2d 267 (1971). Cf. United States v. Louisville & Nashville R.R., 221 F.2d 698, 701 (6th Cir. 1955). No individual claim in this case exceeds $10,000.

      . Act of July 17, 1959, Pub.L. No. 86-91, 73 Stat. 213, 20 U.S.C. § 901 et seq. (1970).

      . Section 4 of the Act, as amended, provides:
      (a) Not later than the ninetieth day following July 17, 1959, the Secretary of Defense shall prescribe and issue regulations to carry out the purposes of this chapter. Such regulations shall govern—
      (1) the establishment of teaching positions ;
      (2) the fixing of basic compensation for teachers and teaching positions at rates equal to the average of the range of rates of basic compensation for similar positions of a comparable level of duties and responsibilities in urban school jurisdictions in the United States of 100,000 or more population ;
      (3) the entitlement of teachers to compensation ;
      (4) the payment of compensation to teachers;
      (5) the appointment of teachers;
      (6) the conditions of employment of teachers;
      (7) the length of the school year or school years applicable to teaching positions ;
      (8) the leave system for teachers;
      (9) quarters, allowances, and additional compensation for teachers ; and
      (10) such other matters as may be relevant and appropriate to the purposes of this chapter.
      (b) The regulations prescribed and issued by the Secretary of Defense under subsection (a) of this section shall become effective on such date as the Secretary of Defense shall prescribe but not later than the ninetieth day following the date of issuance of such regulations.
      20 U.S.C. § 902 (1970). Section 5 of the Act, as amended, provides in pertinent part:
      (a) The secretary of each military department in the Department of Defense shall conduct the emiiloyment and salary practices applicable to teachers and teaching positions in his military department in accordance with this chapter, other applicable law, and the regulations prescribed and issued by the Secretary of Defense under section 902 of this title. . . .
      (b) Subject to section 203 of the Classification Act of 1949, the secretary of each military department—
      (1) shall determine the applicability of paragraph (33) of section 202 of sucli Act, added by section 3 of this Act, to positions and individuals in his military department, and
      (2) shall establish the appropriate annual salary rate in accordance witli this chapter for each such position and individual to which such paragraph (33) is determined to be applicable. .
      (c) The Secretary of each military department shall fix the basic compensation for teachers and teaching positions in his military department at rates equal to the average of the range of rates of basic compensation for similar positions of a comparable level of duties and responsibilities in urban school jurisdictions in the United States of 100,000 or more population.
      20 U.S.C. § 903 (1970).

      . This date is the effective date of an amendment to the Act, on which the teachers’ case is based. See Part 1(C), infra.

        . March v. United States, Civ. No. 3437-70 (D.D.C. May 31, 1972).

      . The Government argues that the District Court was without jurisdiction to grant injunctive relief. The court denied the claim for damages for back pay, and the decided cases, says the Government, suggest that equitable relief can be granted in a Tucker Act suit only in aid of a money judgment. See, e. g., Blanc v. United States, 244 F.2d 708, 709 (2d Cir.), cert. denied, 355 U.S. 874, 78 S.Ct. 126, 2 L.Ed.2d 79 (1957). Since we hold that the District Court erred in rejecting the teachers’ prayer for damages, we find it unnecessary to reach that issue. See Part IV, infra.

      . Brief for United States at 4; Brief for Teachers at 4.

      . See S.Rep.No.141, 86th Cong., 1st Sess. 2 (1959).

      . Id. See also H.R.Rep.No.357, 86th Cong., 1st Sess. 2-3 (1959).

      . S.Rep.No.141, 86th Cong., 1st Sess. 2 (1959).

      . Id. at 1.

      . Act of July 17, 1959, Pub.L. No. 86-91, § 5(c), 73 Stat. 214 (1959).

      . Act of July 17, 1959, Pub.L. No. 86-91, § 5(a), 73 Stat. 214 (1959).

      . Act of July 17, 1959, Pub.L. No. 86-91, § 5(c), 73 Stat. 214 (1959).

      . See H.R.Rep.No.519, 89th Cong., 1st Sess. 3 (1965).

      . See Instructions for the Preparation and Submission of Annual Budget Estimates, Bureau of the Budget Circular A-11, § 13.4 (July, 1963).

      . The legality of this practice is considered in Part III (A), infra.

      . See Mitchell v. McNamara, 122 U.S.App.D.C. 224, 225, 352 F.2d 700, 701 (1965).

      . Mitchell v. McNamara, supra note 18; Crawford v. United States, 179 U.S.App.D.C. 128, 376 F.2d 266 (1967), cert. denied, 389 U.S. 1041, 88 S.Ct. 781, 19 L.Ed.2d 831 (1968); Chambers v. United States, 306 F.Supp. 317 (E.D.Va.1969), aff’d, 434 F.2d 1312 (4th Cir. 1970), cert. denied, 402 U.S. 944, 91 S.Ct. 1619, 29 L.Ed.2d 113 (1971). These cases construed the text of the original Act, rather than the 1966 amendment. See also note 37, infra.

      . See Hearings on H.R. 6845 Before the Subcomm. on Compensation of the House Comm. on Post Office and Civil Service, 89th Cong., 1st Sess. (1965); Hearings on S. 2228 Before the Subcomm. on Civil Service of the Senate Comm, on Post Office and Civil Service, 89th Cong., 1st Sess. (1965). Both bills were firm in their intent to remedy the inequities noted in the text.

      . “The salaries of [ODS] teachers have suffered. Since 1959 their salaries have been increased twice, by a total percentage of 4.3. During the same period, salaries for employees classified as GS-7 (the classification which these teachers had prior to 1959), have increased 21.5 percent, and teachers [sic] salaries in school jurisdictions of 100,000 or more have increased by 18.5 percent.” S.Rep. No.951, 89th Cong., 2nd Sess. 3 (1966).

      . H.R.Rep.No.519, 89th Cong., 1st Sess. 4 (1965) (emjjliasis in original).

      . Id. at 2 (emphasis added).

      . See text supra at note 12.

      . See note 3, supra.

      . United States v. Bass, 404 U.S. 336, 339, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971); Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917); Zaimi v. United States, 155 U.S.App.D.C. 66, 71, 476 F.2d 511, 516 (1973).

      . Caminetti v. United States, supra note 26, 242 U.S. at 485, 37 S.Ct. at 194. See also Callanan v. United States, 364 U.S. 587, 594-595 (1961); United States v. Public Utils. Comm’n, 345 U.S. 295, 312-313, 73 S.Ct. 706, 97 L.Ed. 1020 (1953); Sea-Land Serv., Inc. v. FMC, 131 U.S.App.D.C. 246, 248-249, 404 F.2d 824, 826-827 (1968); District of Columbia Nat’l Bank v. District of Columbia, 121 U.S.App.D.C. 196, 198, 348 F.2d 808, 810 (1965).

      . Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48, 49 S.Ct. 52, 54, 73 L.Ed. 170 (1928).

      . Harrison v. Northern Trust Co., 317 U.S. 476, 479, 63 S.Ct. 361, 363, 87 L.Ed. 407 (1943), quoting United States v. American Trucking Ass’n, 310 U.S. 534, 544, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940).

      . “The individual opinions of witnesses at hearings are of dubious value in interpretation of legislation.” Potomac Passengers Ass’n v. Chesapeake & Ohio Ry. Co., 154 U.S.App.D.C. 214, 225, 475 F.2d 325, 336 (1973), citing McCaughn v. Hershey Chocolate Co., 283 U.S. 488, 493, 51 S.Ct. 510, 75 L.Ed. 1183 (1931); Pacific Ins. Co. v. United States, 188 F.2d 571, 572 (9th Cir.), cert. dismissed, 342 U.S. 857, 72 S.Ct. 85, 96 L.Ed. 645 (1951); United States v. Kung Chen Fur Corp., 188 F.2d 577, 584, 38 CCPA 107 (1951); Railroad Retirement Board v. Duquesne Warehouse Co., 80 U.S.App.D.C. 119, 122, 149 F.2d 507, 510 (1945), aff’d, 326 U.S. 446, 66 S.Ct. 238, 90 L.Ed. 192 (1946).

      . It is of course undisputed that courts can consider congressional debates in construing legislation. See United States v. O’Brian, 391 U.S. 367, 383-384, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). But where, as here, they reflect individual interpretations that are contradictory and ambiguous, they carry no probative weight. See, e. g., NLRB v. Plasterers’ Local Union, 404 U.S. 116, 129-130 n. 24, 92 S.Ct. 360, 30 L.Ed.2d 312 (1971).

      . See generally hearings cited supra note 25; 111 Cong.Rec. 19223-42 (1965). As one example, the Government relies on a statement by Representative Udall, a sponsor of the 1966 amendment, that claimed the practice of calculating ODS teachers’ salaries on the basis of the preceding year’s salaries for stateside teachers was consistent with Bureau of the Budget regulations.
      The salary-determination procedures, of [the proposed amendment] are intended to require that the salary scheduled for a particular school year will be set in consideration of rates paid in school jurisdictions in the United States for the preceding school year. This is necessary because the Department of Defense budget must be prepared during the preceding year when salary schedules in the United States for the coming school year cannot be determined. Under Bureau of the Budget regulations, departments may not budget for anticipated increases in wages or salaries based on prevailing rates outside of the Federal Government. Only wage or salary schedules based on wages or salaries actually being paid can be considered.
      111 Cong.Rec. 19234 (1965). The teachers counter with statements by Representative Udall, 111 Cong.Rec. 19234, 19237, 19239 (1965), and other congressmen. Id. at 19235 (remarks of Representative Stratton) ; id. at 19239 (remarks of Representative Broyhill). The teachers also point out that Representative Udall joined in a 1969 committee report that criticized Department practices. H.R. Rep.No.91-480, 91st Cong., 1st Sess. 7 (1969). See Bobsee Corp. v. United States, 411 F.2d 231, 237 n. 18 (5th Cir. 1969). We note that this report, although written after passage of the 1966 amendment, was prepared by the same committee that pledged “a continuing review” to be certain that ODS teachers were paid their proper salaries. H.R. Rep.No.519, 89th Cong., 1st Sess. 4 (1965).

      . Greenwood v. United States, 350 U.S. 366, 374, 76 S.Ct. 410, 415, 100 L.Ed. 412 (1956). Cf. F. Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.L.Rev. 527, 543 (1947).

      . See Part 1(C), supra. Citations of the reports herein are not meant to supplant the court in its interpretative function. See United States v. American Trucking Ass’n, supra note 29, 310 U.S. at 544, 60 S.Ct. 1059. Our references to the reports are simply “for the purpose of ascertaining the general object of the legislation proposed, and the mischiefs sought to be remedied.” FTC v. Raladam Co., 283 U.S. 643, 651, 51 S.Ct. 587, 591, 75 L.Ed. 1324 (1931). “A committee report represents the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation.” Zuber v. Allen, 396 U.S. 168, 186, 90 S.Ct. 314, 324, 24 L.Ed.2d 345 (1969); United States v. O’Brian, supra note 31, 391 U.S. at 385, 88 S.Ct. 1673; United States v. UAW Int’l, 352 U.S. 567, 585, 77 S.Ct. 529, 1 L.Ed.2d 563 (1957).

      . See Part III, infra.

      . United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477 (1936).

      . 20 U.S.C. §§ 902(a)(2), 903(c) (1970) (emphasis added), quoted in full supra note 3.
      The Court of Claims reached the opposite conclusion in another case challenging this practice and seeking back pay. Trecosta v. United States, 194 Ct.Cl. 1025 (1971). The Court reasoned that “ [although Congress was fully cognizant of past Department procedure . , no action was taken and no change contemplated.” Id. at 1026. We are compelled to reach a different result. We agree that where an administrative agency has consistently given a statute an interpretation over a long time and Congress reenacts the statute without change, Congress might be presumed to have adopted the agency’s construction of the statute. Commissioner v. Flowers, 326 U.S. 465, 469, 66 S.Ct. 259, 90 L.Ed. 203 (1946); United States v. Cerecedo Hermanos y. Compania, 209 U.S. 337, 339, 28 S.Ct. 532, 52 L.Ed. 821 (1908). This maxim, however, is not the last word; the Supreme Court lias admonished that reenactment “is an unreliable indicium at best” to indicate “congressional satisfaction” with a statutory interpretation. Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 431, 75 S.Ct. 473, 477, 99 L.Ed. 483 (1955). We believe that where, as here, “the law is plain the subsequent re-enactment of a statute does not constitute adoption of its administrative construction.” Biddle v. Commissioner, 302 U.S. 573, 582, 58 S.Ct. 379, 383, 82 L.Ed. 431 (1938), citing Iselin v. United States, 270 U.S. 245, 46 S.Ct. 248, 70 L.Ed. 566 (1926); Louisville & N. R. Co. v. United States, 282 U.S. 740, 51 S.Ct. 297, 75 L.Ed. 672 (1931); Helvering v. New York Trust Co., 292 U.S. 455, 467-468, 54 S.Ct. 806, 78 L.Ed. 1361 (1934).

      . Malat v. Riddell, 383 U.S. 569, 86 S.Ct. 1030, 16 L.Ed.2d 102 (1966); Commissioner v. Brown, 380 U.S. 563, 85 S.Ct. 1162, 14 L.Ed.2d 75 (1965); Williams v. W.M.A. Transit Co., 153 U.S.App.D.C. 183, 190, 472 F.2d 1258, 1265 (1972).

      . See, e. g., Davies Warehouse Co. v. Bowles, 321 U.S. 144, 150, 64 S.Ct. 474, 88 L.Ed. 635 (1944).

      . See, e. g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 307, 381, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969); Udall v. Tallman, 386 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Lenkin v. District of Columbia, 149 U.S.App.D.C. 129, 141, 401 F.2d 1215, 1227 (1972).

      . See Barlow v. Collins, 397 U.S. 159, 160, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970).

      . Thompson v. Clifford, 132 U.S.App.D.C. 351, 364, 408 F.2d 154, 167 (1968).

      . See note 40, supra, and accompanying text.

      . H.R.Rep.No.519, 89th Cong., 1st Sess. 3-4 (1965) (emphasis added). See text supra at note 23.

      . Cy Ellis Raw Bar v. District of Columbia Redevelopment Land Agency, 139 U.S.App.D.C. 385, 390, 433 F.2d 543, 548 (1970).

      . Id.

      . Haggar Co. v. Helvering, 308 U.S. 389, 398, 60 S.Ct. 337, 341, 84 L.Ed. 340 (1940). See also Thompson v. Clifford, supra note 42, 132 U.S.App.D.C. at 363, 408 F.2d at 166; District of Columbia v. Grimes, 131 U.S.App.D.C. 360, 362, 404 F.2d 1337, 1339 (1968).

      . See note 32, supra.

      . See Part I(C), supra.

      . 20 U.S.C. §§ 902(a)(3), 903(c) (1970), quoted supra note 3.

      . See 20 U.S.C. § 902(a)(1), (3)—(10) (1970), quoted supra note 3.

      . See Part III(D), infra.

      . See note 3, supra.

      . H.R.Rep.No.519, 89th Cong., 1st Sess. 3 (1965) (emphasis in original).

      . Id. at 4.

      . We are mindful of the Government’s position that the practices in question are covered by the provisions of 20 U.S.C. § 902(a)(1), (3)-(10). See note 3, supra. Undoubtedly, those provisions give the Department some discretion in determining certain conditions of ODS teachers’ employment, but its discretion, as it pertains to fixing basic compensation, is plainly limited by the mandate of equality in 20 U.S.C. §§ 902(a)(2), 903(c). See note 3, supra. We must read the Act as a whole, and give effect to each of its provisions if possible, “in light of the legislative policy and purpose.” Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 631-632, 93 S.Ct. 2469, 2484, 37 L.Ed.2d 207 (1973). Our interpretation, we think, firmly embraces both of these principles. To accept the Department’s interpretation, however, would be to strike a crippling blow to the statutory scheme of equality, and to neutralize the obvious objective of the 1966 amendment. An administrative agency, like a court, lacks freedom to tailor its interpretation of a statute to its own notions of what is best, and thereby to negate its stated purpose. State Dep’t of Social Serv. v. Dublino, 413 U.S. 405, 419-420, 93 S.Ct. 2507, 37 L.Ed.2d 688 (1973).

      . Brief for Government at 20-21.

      . The importance of the limit on credit for prior experience, for example, can be clearly shown. A teacher with a Bachelor of Arts degree and six years of prior teaching experience would have been placed at step 7 in a stateside school system during the 1969-70 school year; but the Department would have placed the same teacher at step 3 in an overseas position. Joint App. at 27 (affidavit of Earl C. Berger, Counsel for the Overseas Education Association). At that time, each step was worth $270, resulting in a loss of $1,080, which was exacerbated by use of the salary scale from the preceding year. See Part III (A), supra.

      . See note 38, supra, and accompanying text.

      . See Part 1(C), supra.

      . The discrepancy results because the Department includes the Christmas and Easter vacations as part of the school year for this purpose, while stateside schools exclude these days. In each case, the school year comprises between 180 and 190 working days. See 5 C.F.R. § 1601.7 (1974).

      . The Government also argues that the discretion given by Section 4(a)(9), 20 U.S.C. § 902(a)(9) (1970), to promulgate regulations governing “quarters, allowances, and additional compensation for teachers,” allows the Department to fix the year at 210 days for calculation of the daily wage rate. AVe cannot agree that this provision is relevant to this case. The first two categories in this section certainly do not apply. See 20 U.S.C. §§ 905, 906 (1970). Moreover, “additional compensation,” as it is commonly understood, does not include computation of the daily wage rate, because that rate is merely a breakdown of the basic annual wage. Compare Part III(D), infra.

      . 20 U.S.C. § 902(a)(7) (1970).

      . Indeed, the Department might reasonably provide that the school year for ODS teachers consists of more than 190 working days. Once the number of working days is fixed, however, we think the statute requires the Department to fix the daily rate in the same manner as stateside schools. A major purpose both of the original Act and the 1966 amendment was to equalize ODS teachers’ compensation and stateside teachers’ salaries. See Part I, supra. The Government has not pointed to a single stateside jurisdiction that computes its daily pay rate in the fashion we are asked to approve. Tims we cannot infer that there is a basis for claiming that the current practice represents that in the average stateside school district.

      . E. g., Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-414, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

      . E. g., Hardin v. Kentucky Util. Co., 390 U.S. 1, 8, 88 S.Ct. 651, 19 L.Ed.2d 787 (1968).

      . 5 C.F.R. § 1601.7 (1974).

      . See note 62, supra.

      . See Part 1(C), supra.

      . 20 U.S.C. §§ 902(a)(2), 903(c) (1970), quoted supra note 3.

      . 20 U.S.C. § 902(a)(8), (9) (1970), quoted supra note 3. The teachers have not presented any evidence to contradict the District Court’s finding that the Department’s discretion has been “reasonably exercised.” Instead, they argue that this part of the case is also sub____ to the strict equality standard discussed above. See Parts III (A), (B) & (C), supra. We think this argument ignores the ordinary meaning of the statutory language.

      . See text supra at note 5.

      . See text supra at note 6.

      . See Part III, supra. Moreover, none of the usual justifications for barring retroactive application of a judicial decision apply to this case. See Linkeletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961); Comment, Legal Aspects of the Use of “Ordinary Simple Interest,” 41 U.Chi.L.Rev. 141, 150-51 (1972).

      . See notes 1 & 4, supra.

      . Texas & Pac. Ry. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874 (1916). See also Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 239, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969); Kentucky Util. Co. v. TVA, 375 F.2d 403, 416-417 (6th Cir. 1966); Dann v. Studebaker-Packard Corp., 288 F.2d 201, 208-209 (6th Cir. 1961). There has been no suggestion that the named teachers, and those whom they represent, are not members of the class for whose benefit the statute was enacted.