author: Justice Blackmun Justice White,

text:
    DEPARTMENT OF THE NAVY v. EGAN
    No. 86-1552.
    Argued December 2, 1987
    Decided February 23, 1988

      Blackmun, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, and Scalia, JJ., joined. White, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 534. Kennedy, J., took no part in the consideration or decision of the case.

      Deputy Solicitor General Cohen argued the cause for petitioner. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Michael K. Kellogg, Barbara L. Herwig, and Freddi Lipstein.

      William J. Nold argued the cause and filed a brief for respondent.

        Daniel J. Popeo, Paul D. Kamenar, and Todd Nothin filed a brief for the Washington Legal Foundation as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union Foundation et al. by John A. Powell, Helen Hershhoff, and Steven R. Shapiro; for the American Federation of Labor and Congress of Industrial Organizations by George Kaufmann and Laurence

        Gold; for the National Federation of Federal Employees by Patrick J. Riley; and for Ralph B. Bogdanowicz by Stuart A. Kirsch and Mark D. Roth.

   Justice Blackmun

delivered the opinion of the Court.

Respondent Thomas M. Egan lost his laborer’s job at the Trident Naval Refit Facility in Bremerton, Wash., when he was denied a required security clearance. The narrow question presented by this case is whether the Merit Systems Protection Board (Board) has authority by statute to review the substance of an underlying decision to deny or revoke a security clearance in the course of reviewing an adverse action. The Board ruled that it had no such authority. The Court of Appeals for the Federal Circuit, by a divided vote, reversed. We granted certiorari because of the importance of the issue in its relation to national security concerns. 481 U. S. 1068 (1987).

I

Respondent Egan was a new hire and began his work at the facility on November 29,1981. He served as a veteran’s-preference-eligible civilian employee of the Navy subject to the provisions of the Civil Service Reform Act of 1978 (Act), 5 U. S. C. § 1201 et seq.

The mission of the Refit Facility is to provide quick-turnaround repair, replenishment, and systems check-out of the Trident submarine over its extended operating cycle. The Trident is nuclear-powered and carries nuclear weapons. It has been described as the most sophisticated and sensitive weapon in the Navy’s arsenal and as playing a crucial part in our Nation’s defense system. See Concerned About Trident v. Schlesinger, 400 F. Supp. 454, 462-466 (DC 1975), aff’d in part and rev’d in part, 180 U. S. App. D. C. 345, 555 F. 2d 817 (1977). As a consequence, all employee positions at the Refit Facility are classified as sensitive. Thus, as shown on his Standard Form, a condition precedent to Egan’s retention of his employment was “satisfactory completion of security and medical reports.”

In April 1982, respondent gained the “noncritical-sensitive” position of laborer leader. Pending the outcome of his security investigation, however, he performed only limited duties and was not permitted to board any submarine.

On February 16, 1983, the Director of the Naval Civilian Personnel Command issued a letter of intent to deny respondent a security clearance. This was based upon California and Washington state criminal records reflecting respondent’s convictions for assault and for being a felon in possession of a gun, and further based upon his failure to disclose on his application for federal employment two earlier convictions for carrying a loaded firearm. The Navy also referred to respondent’s own statements that he had had drinking problems in the past and had served the final 28 days of a sentence in an alcohol rehabilitation program.

Respondent was informed that he had a right to respond to the proposed security-clearance denial. On May 6, he answered the Navy’s letter of intent, asserting that he had paid his debt to society for his convictions, that he had not listed convictions older than seven years because he did not interpret the employment form as requiring that information, and that alcohol had not been a problem for him for three years preceding the clearance determination. He also provided favorable material from supervisors as to his background and character.

The Director, after reviewing this response, concluded that the information provided did not sufficiently explain, mitigate, or refute the reasons on which the proposed denial was based. Accordingly, respondent’s security clearance was denied.

Respondent took an appeal to the Personnel Security Appeals Board, but his removal was effected before that Board acted (which it eventually did by affirming the denial of clearance).

Without a security clearance, respondent was not eligible for the job for which he had been hired. Reassignment to a nonsensitive position at the facility was not possible because there was no nonsensitive position there. Accordingly, the Navy issued a notice of proposed removal, and respondent was placed on administrative leave pending final decision. Respondent did not reply to the notice. On July 15,1983, he was informed that his removal was effective July 22.

Respondent, pursuant to 5 U. S. C. § 7513(d), sought review by the Merit Systems Protection Board. Under § 7513(a), an agency may remove an employee “only for such cause as will promote the efficiency of the service.” The statute, together with § 7701 to which § 7513(d) specifically refers, provides the employee with a number of procedural protections, including notice, an opportunity to respond and be represented by counsel, and a decision in writing. The employee, unless he is a nonveteran in the excepted service, may appeal the agency’s decision to the Board, as respondent did, which is to sustain the action if it is “supported by a preponderance of the evidence.” § 7701(c)(1)(B). The stated “cause” for respondent’s removal was his failure to meet the requirements for his position due to the denial of security clearance. Before the Board, the Government argued that the Board’s review power was limited to determining whether the required removal procedures had been followed and whether a security clearance was a condition for respondent’s position. It contended that the Board did not have the authority to judge the merits of the underlying security-clearance determination.

The Board’s presiding official reversed the agency’s decision, ruling that the Board did have authority to review the merits. She further ruled that the agency must specify the precise criteria used in its security-clearance decision and must show that those criteria are rationally related to national security. App. to Pet. for Cert. 62a-63a. The agency then must show, by a preponderance of the evidence, that the employee’s acts precipitating the denial of his clearance actually occurred, and that his “alleged misconduct has an actual or potentially detrimental effect on national security interests.” Id., at 63a. The official then held that the ultimate burden was upon the agency to persuade the Board of the appropriateness of its decision to deny clearance. Id., at 64a.

The official concluded that it was not possible to determine whether the Navy’s denial of respondent’s security clearance was justified because it had not submitted a list of the criteria it employed and because it did not present evidence that it had “conscientiously weighed the circumstances surrounding [respondent’s] alleged misconduct and reasonably balanced it against the interests of national security.” Id., at 65a. She accordingly concluded that the Navy had “failed to show it reached a reasonable and warranted decision concerning the propriety of the revocation of [respondent’s] security clearance.” Id., at 66a. The decision to remove respondent, therefore, could not stand.

The Navy petitioned for full Board review of the presiding official’s ruling. In a unanimous decision, the Board reversed the presiding official’s ruling and sustained the agency’s removal action. 28 M. S. P. R. 509 (1985). It observed that §§7512 and 7513 “do not specifically address the extent of the Board’s review of the underlying determinations.” 28 M. S. P. R., at 514. Neither did the legislative history of the Act “address the extent of the authority Congress intended the Board to exercise in reviewing revocations or denials of security clearances which result in Chapter 75 actions.” Id., at 515. The Board found no binding legal precedent. It acknowledged the presence of the decision in Hoska v. Department of Army, 219 U. S. App. D. C. 280, 677 F. 2d 131 (1982) (security clearance revocation leading to dismissal reviewed on its merits), but explained that case away on the ground that the court did not “expressly address the Board’s authority to review the underlying reasons for the agency’s security clearance determination.” 28 M. S. P. R., at 516. Thus, earlier Board cases that had relied upon Hoska, see, e. g., Bogdanowicz v. Department of Army, 16 M. S. P. R. 653 (1983), involved a “reliance misplaced,” and the holding that they stood “for the proposition that the Board has the authority to review the propriety of the agency’s . . . denial of a security clearance” was “now overrule[d].” 28 M. S. P. R., at 516. It went on to say that “section 7532 is not the exclusive basis for removals based upon security clearance revocations.” Id., at 521.

Respondent, pursuant to § 7703, appealed to the Court of Appeals for the Federal Circuit. By a divided vote, that court reversed the Board’s decision that it had no authority to review the merits of a security-clearance determination underlying a removal. 802 F. 2d 1563 (1986). It agreed with the Board that § 7532 is not the sole authority for a removal based upon national security concerns. 802 F. 2d, at 1568. It noted, however, that the agency had chosen to remove respondent under §7512 rather than §7532 and thus that it chose the procedure “that carrie[d] Board review under section 7513,” 802 F. 2d, at 1569, including review of the merits of the underlying agency determination to deny a security clearance. The court then remanded the case to the Board for such review, stating that the question of an appropriate remedy, should the Board now rule that a security clearance was improperly denied, was not yet ripe. Id., at 1573-1575.

The dissenting judge in the Court of Appeals concluded that respondent had received all the procedural protections to which he was entitled, id., at 1577-1578; that the majority in effect was transferring a discretionary decision vested in an executive agency to a body that had neither the responsibility nor the expertise to make that decision; that the ruling raised separation-of-powers concerns; and that the Board would be unable to provide an appropriate remedy. Id., at 1578, 1580-1583.

II

We turn first to the statutory structure. Chapter 75 of Title 5 of the United States Code is entitled “Adverse Actions.” Its subchapter II (§§ 7511-7514) relates to removals for “cause.” Subchapter IV (§§ 7531-7533) relates to removals based upon national security concerns. An employee removed for “cause” has the right, under § 7513(d), to appeal to the Board. In contrast, an employee suspended under § 7532(a) is not entitled to appeal to the Board. That employee, however, is entitled to specified preremoval procedural rights, including a hearing by an agency authority. § 7532(c)(3).

Chapter 77 of Title 5 (§§7701-7703) is entitled “Appeals,” and Chapter 12 (§§ 1201-1209) relates to the “Merit Systems Protection Board and Special Counsel.” Section 1205(a) provides that the Board shall “hear, adjudicate, or provide for the hearing or adjudication of all matters within the jurisdiction of the Board” and shall “order any Federal agency or employee to comply with any order or decision issued by the Board.” In the present litigation, there is no claim that the Board did not have jurisdiction to hear and adjudicate respondent’s appeal.

It is apparent that the statutes provide a “two-track” system. A removal for “cause” embraces a right of appeal to the Board and a hearing of the type prescribed in detail in § 7701. Suspension and removal under § 7532, however, entail no such right of appeal. Respondent takes the straightforward position that, inasmuch as this case proceeded under § 7513, a hearing before the Board was required. The Government agrees. What is disputed is the subject matter of that hearing and the extent to which the Board may exercise reviewing authority. In particular, may the Board, when §7513 is pursued, examine the merits of the security-clearance denial, or does its authority stop short of that point, that is, upon review of the fact of denial, of the position’s requirement of security clearance, and of the satisfactory provision of the requisite procedural protections?

Ill

The Court of Appeals’ majority stated: “The absence of any statutory provision precluding appellate review of security clearance denials in section 7512 removals creates a strong presumption in favor of appellate review,” citing Abbott Laboratories v. Gardner, 387 U. S. 136, 141 (1967). 802 F. 2d, at 1569. One perhaps may accept this as a general proposition of administrative law, but the proposition is not without limit, and it runs aground when it encounters concerns of national security, as in this case, where the grant of security clearance to a particular employee, a sensitive and inherently discretionary judgment call, is committed by law to the appropriate agency of the Executive Branch.

The President, after all, is the “Commander in Chief of the Army and Navy of the United States.” U. S. Const., Art. II, § 2. His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant. See Cafeteria Workers v. McElroy, 367 U. S. 886, 890 (1961). This Court has recognized the Government’s “compelling interest” in withholding national security information from unauthorized persons in the course of executive business. Snepp v. United States, 444 U. S. 507, 509, n. 3 (1980). See also United States v. Robel, 389 U. S. 258, 267 (1967); United States v. Reynolds, 345 U. S. 1, 10 (1953); Totten v. United States, 92 U. S. 105, 106 (1876). The authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief.

Since World War I, the Executive Branch has engaged in efforts to protect national security information by means of a classification system graded according to sensitivity. See Note, Developments in the Law — The National Security Interest and Civil Liberties, 85 Harv. L. Rev. 1130, 1193-1194 (1972). After World War II, certain civilian agencies, including the Central Intelligence Agency, the National Security Agency, and the Atomic Energy Commission, were entrusted with gathering, protecting, or creating information bearing on national security. Presidents, in a series of Executive Orders, have sought to protect sensitive information and to ensure its proper classification throughout the Executive Branch by delegating this responsibility to the heads of agencies. See Exec. Order No. 10290, 3 CFR 789 (1949-1953 Comp.); Exec. Order No. 10501, 3 CFR 979 (1949-1953 Comp.); Exec. Order No. 11652, 3 CFR 678 (1971-1975 Comp.); Exec. Order No. 12065, 3 CFR 190 (1979); Exec. Order No. 12356, §4.1(a), 3 CFR 174 (1983). Pursuant to these directives, departments and agencies of the Government classify jobs in three categories: critical sensitive, noncritical sensitive, and nonsensitive. Different types and levels of clearance are required, depending upon the position sought. A Government appointment is expressly made subject to a background investigation that varies according to the degree of adverse effect the applicant could have on the national security. See Exec. Order No. 10450, §3, 3 CFR 937 (1949-1953 Comp.).

It should be obvious that no one has a “right” to a security clearance. The grant of a clearance requires an affirmative act of discretion on the part of the granting official. The general standard is that a clearance may be granted only when “clearly consistent with the interests of the national security.” See, e. g., Exec. Order No. 10450, §§2 and 7, 3 CFR 936, 938 (1949-1953 Comp.); 10 CFR §710.10(a) (1987) (Department of Energy); 32 CFR § 156.3(a) (1987) (Department of Defense). A clearance does not equate with passing judgment upon an individual’s character. Instead, it is only an attempt to predict his possible future behavior and to assess whether, under compulsion of circumstances or for other reasons, he might compromise sensitive information. It may be based, to be sure, upon past or present conduct, but it also may be based upon concerns completely unrelated to conduct, such as having close relatives residing in a country hostile to the United States. “[T]o be denied [clearance] on unspecified grounds in no way implies disloyalty or any other repugnant characteristic.” Molerio v. FBI, 242 U. S. App. D. C. 137, 146, 749 F. 2d 815, 824 (1984). The attempt to define not only the individual’s future actions, but those of outside and unknown influences renders the “grant or denial of security clearances ... an inexact science at best.” Adams v. Laird, 136 U. S. App. D. C. 388, 397, 420 F. 2d 230, 239 (1969), cert. denied, 397 U. S. 1039 (1970).

Predictive judgment of this kind must be made by those with the necessary expertise in protecting classified information. For “reasons . . . too obvious to call for enlarged discussion,” CIA v. Sims, 471 U. S. 159, 170 (1985), the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it. Certainly, it is not reasonably possible for an outside non-expert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction with confidence. Nor can such a body determine what constitutes an acceptable margin of error in assessing the potential risk. The Court accordingly has acknowledged that with respect to employees in sensitive positions “there is a reasonable basis for the view that an agency head who must bear the responsibility for the protection of classified information committed to his custody should have the final say in deciding whether to repose his trust in an employee who has access to such information.” Cole v. Young, 351 U. S. 536, 546 (1956). As noted above, this must be a judgment call. The Court also has recognized “the generally accepted view that foreign policy was the province and responsibility of the Executive.” Haig v. Agee, 453 U. S. 280, 293-294 (1981). “As to these areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities.” United States v. Nixon, 418 U. S. 683, 710 (1974). Thus, unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs. See, e. g., Orloff v. Willoughby, 345 U. S. 83, 93-94 (1953); Burns v. Wilson, 346 U. S. 137, 142, 144 (1953); Gilligan v. Morgan, 413 U. S. 1, 10 (1973), Schlesinger v. Councilman, 420 U. S. 738, 757-758 (1975); Chappell v. Wallace, 462 U. S. 296 (1983).

We feel that the contrary conclusion of the Court of Appeals’ majority is not in line with this authority.

IV

Finally, we are fortified in our conclusion when we consider generally the statute’s “express language” along with “the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved.” Block v. Community Nutrition Institute, 467 U. S. 340, 345 (1984).

The Act by its terms does not confer broad authority on the Board to review a security-clearance determination. As noted above, the Board does have jurisdiction to review “adverse actions,” a term, however, limited to a removal, a suspension for more than 14 days, a reduction in grade or pay, and a furlough of 30 days or less. §§ 7513(d), 7512. A denial of a security clearance is not such an “adverse action,” and by its own force is not subject to Board review. An employee who is removed for “cause” under § 7513, when his required clearance is denied, is entitled to the several procedural protections specified in that statute. The Board then may determine whether such cause existed, whether in fact clearance was denied, and whether transfer to a nonsensitive position was feasible. Nothing in the Act, however, directs or empowers the Board to go further. Cf. Zimmer man v. Department of Army, 755 F. 2d 156 (CA Fed. 1985); Buriani v. Department of Air Force, 777 F. 2d 674, 677 (CA Fed. 1985); Bacon v. Department of Housing & Urban Development, 757 F. 2d 265, 269-270 (CA Fed. 1985); Madsen v. VA, 754 F. 2d 343 (CA Fed. 1985).

As noted above, security clearance normally will be granted only if it is “clearly consistent with the interests of the national security.” The Board, however, reviews adverse actions under a preponderance of the evidence standard. § 7701(c)(1)(B). These two standards seem inconsistent. It is difficult to see how the Board would be able to review security-clearance determinations under a preponderance of the evidence standard without departing from the “clearly consistent with the interests of the national security” test. The clearly consistent standard indicates that security-clearance determinations should err, if they must, on the side of denials. Placing the burden on the Government to support the denial by a preponderance of the evidence would inevitably shift this emphasis and involve the Board in second-guessing the agency’s national security determinations. We consider it extremely unlikely that Congress intended such a result when it passed the Act and created the Board.

Respondent presses upon us the existence of § 7532 with its provision for an employee’s summary removal. The Court of Appeals’ majority concluded that § 7532 was not the exclusive means for removal on national security grounds. 802 F. 2d, at 1568. The parties to the present litigation are in no dispute about the alternative availability of §7513 or §7532. They assume, as the Federal Circuit held, that §7532 does not pre-empt §7513 and that the two statutes stand separately and provide alternative routes for administrative action. There is no reason for us to dispute that conclusion here for, in this respect, we accept the case as it comes to us.

Respondent points out the Government’s acknowledgment that the remedy under §7532 is “drastic” in that the employee may be suspended summarily and thereafter removed after such investigation and review as the agency head considers necessary; in that neither the suspension nor the removal is subject to outside review; in that the employee is not eligible for any other position in the agency and may not be appointed to a position elsewhere in the Government without consultation with the Office of Personnel Management; and in that the section requires the head of the agency to act personally. At the same time, respondent would say, as did the Court of Appeals, 802 F. 2d, at 1572, that the Board’s decision in the present case suggests an anomaly in that an employee removed under § 7513 is entitled to less process than one removed under § 7532. The argument is that the availability of the §7532 procedure is a “compelling” factor in favor of Board review of a security-clearance denial in a case under § 7513. We are not persuaded.

We do not agree that respondent would have received greater procedural protections under § 7532 than he received in the present case. Respondent received notice of the reasons for the proposed denial, an opportunity to inspect all relevant evidence, a right to respond, a written decision, and an opportunity to appeal to the Personnel Security Appeals Board. Until the time of his removal, he remained on full-pay status. His removal was subject to Board review that provided important protections outlined above. In contrast, had he been removed under § 7532, he would have received notice to “the extent that the head of the agency determines that the interests of national security permit,” a hearing before an agency board, and a decision by the head of the agency. He could have been suspended without pay pending the outcome. He would not have been entitled to any review outside the agency, and, once removed, he would have been barred from employment with the agency. In short, § 7532, instead, provides a procedure that is harsh and drastic both for the employee and for the agency head, who must act personally in suspending and removing the employee. See §§ 7532(a) and (b).

Respondent’s argument that the Board’s decision in this case creates an anomaly seems to come down to his contention that, had he been removed under § 7532, he would have been entitled to a trial-type hearing prior to his removal. Even assuming he would be entitled to such a hearing under § 7532, however, we would still consider the two procedures not anomalous, but merely different. As explained above, we doubt whether removal under § 7532, even as envisioned by respondent, would have amounted to “more” procedural protection.

The judgment of the Court of Appeals is reversed.

It is so ordered.

Justice Kennedy took no part in the consideration or decision of this case.

Justice White,

with whom Justice Brennan and Justice Marshall join, dissenting.

It cannot be denied that the Government has a “compelling interest” in safeguarding the Nation’s secrets. See ante, at 527. I see no necessity for this Court to rewrite the civil service statutes in the name of national security, however, since those statutes already provide a procedure that protects sensitive information without depriving federal employees such as respondent of a hearing into the underlying reasons for their discharge.

The parties do not dispute that respondent was discharged from his civilian “laborer leader” position with the U. S. Navy pursuant to subchapter II of the Civil Service Reform Act, 5 U. S. C. §§7511-7514. A federal agency may discharge an employee under those statutory provisions “only for such cause as will promote the efficiency of the service.” § 7513(a). The employee is entitled to appeal the agency’s action to the Merit Systems Protection Board. § 7513(d). The Board must afford the employee “a hearing for which a transcript will be kept.” § 7701(a)(1). The employee’s discharge is to be sustained by the Board only if “supported by a preponderance of the evidence.” § 7701(c)(1)(B).

There is nothing in these statutory provisions to suggest that the Board is to scrutinize discharges on national security grounds any less comprehensively than other discharges for “cause.” Nor does the legislative history of these provisions suggest that the Board is foreclosed from examining the reasons underlying the discharges of employees who are alleged to be security risks.

If Congress had remained silent on the subject of national security discharges throughout the Civil Service Reform Act, I might feel compelled to read into the foregoing provisions some restrictions on the scope of Board review of such discharges. It might be appropriate in such circumstances to assume that Congress intended that such restrictions be inferred by the Board and the courts.

Congress did not remain silent, however, with regard to national security discharges. Rather, Congress carefully provided an alternative procedure to be used when the Government determines that an employee’s removal is “necessary or advisable in the interests of national security.” 5U. S. C. § 7532(b). The employee is entitled under this procedure to “a written statement of the charges against him,” “an opportunity ... to answer the charges and submit affidavits,” “a hearing ... by an agency authority duly constituted for this purpose,” “a review of his case by the head of the agency or his designee,” and “a written statement of the decision of the head of the agency.” § 7532(c). The decision of the agency head is “final.” § 7532(b). It is not disputed that the Navy could have proceeded against respondent under § 7532.

The sensible inference to be drawn from Congress’ enactment of the procedural protections of § 7532 for employees discharged “in the interests of national security” and its silence with regard to the procedures applicable to similarly motivated discharges under other sections of the civil service statutes is that Congress intended to guarantee every discharged employee a hearing into the “cause” for his removal. If the employee is discharged under § 7532, he is entitled to a hearing before his own agency; if the employee is discharged under other provisions of Title 5, he is entitled to a hearing before the Board.

Yet, the majority’s decision frustrates this congressional intent by denying any meaningful hearing to employees such as respondent who are discharged on national security grounds under provisions other than § 7532. In such cases, the employing agency has no statutory obligation to afford the employee a hearing, and the Board now need determine only “whether in fact [a security] clearance was denied, and whether transfer to a nonsensitive position was feasible.” Ante, at 530. Hence, the employee cannot demand a hearing into claims that he was branded a security risk based on false allegations or on reasons that lack any rational nexus to national security concerns.

It is difficult to reconcile today’s decision with the Court’s discussion in Greene v. McElroy, 360 U. S. 474 (1959), of the procedural protections available to an employee of a Government contractor who had been denied a security clearance based on his alleged Communist associations and sympathies:

“Before we are asked to judge whether, in the context of security clearance cases, a person may be deprived of the right to follow his chosen profession without full hearings where accusers may be confronted, it must be made clear that the President or Congress, within their respective constitutional powers, specifically has decided that the imposed procedures are necessary and warranted and has authorized their use. Such decisions cannot be assumed by acquiescence or non-action. They must be made explicitly not only to assure that individuals are not deprived of cherished rights under procedures not actually authorized, . . . but also because explicit action, especially in areas of doubtful constitutionality, requires careful and purposeful consideration by those responsible for enacting and implementing our laws.” Id., at 507 (citations omitted).

It is far from clear in the instant circumstances that Congress or the President has decided that discharging alleged security risks without any sort of hearing is “necessary or warranted” or has explicitly authorized such a procedure. Instead, the majority assumes such a result from congressional “nonaction.” For example, the majority emphasizes that “[n]othing in the [Civil Service Reform] Act . . . directs or empowers the Board to go further” than to determine whether a security clearance was indeed denied and whether transfer to a nonsensitive position was possible. Ante, at 530. There is likewise nothing in the Act, however, that directs the Board not to “go further.”

Today’s result is not necessary to protect the Nation’s secrets. If an agency fears that the Board will not be sufficiently sensitive to the national security implications of a discharge decision, the agency may foreclose external review of that decision by proceeding against the employee under § 7532. The agency would be required in such circumstances, however, to afford the employee an internal hearing into the reasons for his termination. The agency could not discharge the employee, as the Navy did here, without affording him any hearing into the merits of his discharge.

The majority suggests that respondent would have received no more procedural protection under §7532 than under § 7513 notwithstanding that he was guaranteed a hearing on the merits under the former provision but not under the latter. Ante, at 533. This conclusion does not show sufficient regard for our many decisions recognizing the particularly important role of the hearing in assuring that individuals are not wrongfully deprived of their livelihoods or other significant interests. See, e. g., Wolff v. McDonnell, 418 U. S. 539, 557-558 (1974); Perry v. Sindermann, 408 U. S. 593, 603 (1972); Stanley v. Illinois, 405 U. S. 645, 652-658 (1972); Goldberg v. Kelly, 397 U. S. 254, 269-270 (1970). I cannot assume that the proceedings required under § 7532 would not provide an employee with a meaningful opportunity to be heard simply because they are conducted by an agency authority rather than by the Board.

In sum, absent any indication that Congress or the President intended to deny federal employees discharged on national security grounds a full hearing before either the Board or their employing agency into the merits of their removal, I respectfully dissent.

       A “noncritical-sensitive” position is defined to include “[a]ccess to Secret or Confidential information.” Chief of Naval Operations Instructions (OPNAVINST) 5510. IF, K16-101-2.b (June 15, 1981). OPNAVINST 5510. IF was amended in April 1984 and is now OPNAVINST 5510.1G.

       This date is of some significance for by then respondent had been employed at the facility for more than a year. Title 5 U. S. C. § 7511(a)(1)(A) defines an “employee” as “an individual in the competitive service who is not serving a probationary or trial period under an initial appointment or who has completed 1 year of current continuous employment under other than a temporary appointment limited to 1 year or less.” There is no dispute concerning respondent’s status as an employee within the meaning of § 7511(a)(1)(A).

       Section 7513(d) reads: “An employee against whom an action is taken under this section is entitled to appeal to the Merit Systems Protection Board under section 7701 of this title.”

       We note at this point the presence of 5 U. S. C. §7532. Under § 7532(a), the “head of an agency,” “[n]otwithstanding other statutes,” may suspend an employee “when he considers that action necessary in the interests of national security.” After complying with specified procedures, the agency head may remove the suspended employee when “he determines that removal is necessary or advisable in the interests of national security.” His determination then is “final.” § 7532(b). Removal under § 7532 is not subject to Board review. § 7512(A). In respondent’s case the Navy did not invoke § 7532; his removal, therefore, presumably would be subject to Board review as provided in § 7513.

       The Solicitor General informs us, see Brief for Petitioner 6, that the Board had before it numerous petitions for review raising similar issues of law, and treated the present litigation as the lead case. The Board had invited and received briefs from interested agencies, employee organizations, and others concerning the proper scope of its review and whether § 7532, see n. 4, supra, is the exclusive authority for a removal based upon national security concerns. See 49 Fed. Reg. 48623-48624 (1984); 50 Fed. Reg. 2355 (1985).

       Prior to the Act’s passage in 1978, most federal employees dismissed for cause could pursue an appeal to the Civil Service Commission. The parties here appear to agree that the old Commission never exercised jurisdiction over a security-clearance determination. We fail to see any indication that Congress intended to grant the Board greater jurisdiction in this respect than that possessed by the Civil Service Commission. The Board was created to assume the adjudicatory functions of the old Commission and, with certain exceptions, those functions passed unchanged from the Commission to the Board. When the Senate and House Committees listed the changes effected by the Act, they gave no indication that an agency’s security-clearance determination was now to be subject to review. See S. Rep. No. 95-969, pp. 46 and 52 (1978); H. R. Rep. No. 95-1403, pp. 21,22 (1978). Such changes as were made did not bear upon the issue. If there be any contrary implication in the legislative history, as respondent would suggest, it is much too frail for us to conclude that Congress intended a major change of that kind.

       But cf. Doe v. Weinberger, 261 U. S. App. D. C. 96, 101, 820 F. 2d 1275, 1280 (1987), cert. pending sub nom. Carlucci v. Doe, No. 87-751. If the District of Columbia Circuit’s holding in Doe (to the effect that § 7532 is not merely “an extra option,” 261 U. S. App. D. C., at 101, 820 P. 2d, at 1280, for the removal of an employee of the National Security Agency, to which 50 U. S. C. §§ 831 and 832 apply) is pertinent with respect to the Navy’s power to dismiss an employee for cause under § 7513, that ruling would conflict with the Federal Circuit’s holding in the present case that the Navy may proceed under § 7513. This Court will meet the issue in Doe when it comes to it. We decide the present case on the parties’ assumption that § 7513 was available to the Navy in this case and that it proceeded thereunder.

       There is no reason to assume that the Board would be insensitive to national security concerns. It is questionable whether the Board would often have to consider sensitive information in determining whether an agency had cause to discharge an employee on national security grounds. No such information appears to have been at issue in the instant case. Moreover, in those eases in which sensitive information would have to be considered, the Board could be expected to adopt procedures (e. g., in camera inspection of classified documents) similar to those utilized by the courts in similar circumstances. It appears that the courts have previously adjudicated eases involving denials of security clearances without any documented harm to national security. See, e. g., Hoska v. United States Department of Army, 219 U. S. App. D. C. 280, 677 F. 2d 131 (1982); Gayer v. Schlesinger, 160 U. S. App. D. C. 172, 490 F. 2d 740 (1973); McKeand v. Laird, 490 F. 2d 1262 (CA9 1973). Finally, given the requirement of Executive Order No. 10450, 3 CFR 937 (1949-1953 Comp.), that security clearances be granted only if “clearly consistent with the interests of the national security,” I would assume that the Board’s review of national security discharges would be suitably deferential to the employing agency even under the preponderance of the evidence standard prescribed by § 7701(c)(1)(B). It is questionable whether the Board’s inquiry into such discharges would be qualitatively different from its inquiry into discharges for other varieties of “cause.” The Board routinely evaluates such factors as loyalty, trustworthiness, and judgment in determining whether an employee’s discharge will “promote the efficiency of the service.”

       The § 7532 procedure is not as “harsh and drastic” as the majority contends to either the employee or the agency head. The majority asserts that, if respondent had been discharged under § 7532, “he would have been barred from employment with the agency.” Ante, at 533. Respondent, however, could have obtained other employment with the Navy even if he had been discharged under § 7532; the civil service statutes expressly authorize the reinstatement of persons removed under § 7532 “in the discretion of the head of the agency concerned.” §3571. It has never been suggested that the Navy would not rehire respondent for a position that does not require a security clearance. Moreover, while the majority asserts that the agency head “must act personally” to discharge an employee under § 7532, ante, at 533, the statute provides for final review of discharge decisions by “the head of the agency or his designee” § 7532(c)(3)(D) (emphasis added).


source: Caselaw Access Project

author: Justice Stevens

license: Public Domain

text:
    LABORERS HEALTH AND WELFARE TRUST FUND FOR NORTHERN CALIFORNIA et al. v. ADVANCED LIGHTWEIGHT CONCRETE CO., INC.
    No. 85-2079.
    Argued November 10, 1987
    Decided February 23, 1988

      Stevens, J., delivered the opinion of the Court, in which all other Members joined, except Kennedy, J., who took no part in the consideration or decision of the case.

      Michael B. Roger argued the cause for petitioners. With him on the briefs were Blythe Mickelson and Barry E. Hinkle.

      Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Deputy Solicitor

      General Cohen, George R. Salem, Allen H. Feldman, and Ellen L. Beard.

      Mark S. Ross argued the cause for respondent. With him on the brief were Leonard L. Scheinholtz, Hollis T. Hurd, and Morton H. Orenstein.

      Briefs of amici curiae urging reversal were filed for Carpenters Southern California Administrative Corporation by Colin M. Long; for the National Coordinating Committee for Multiemployer Plans by Gerald M. Feder and David R. Levin; and for the Tri-State U.F.C.W. and Employers Benefit Fund by William P. Getty.

      Briefs of amici curiae urging affirmance were filed for the Associated General Contractors of America, Inc., by A. J. Harper II, T. J. Wray, and David M. Thomas; and for the Chamber of Commerce of the United States by Stephen A. Bokat and Robin S. Conrad.

   Justice Stevens

delivered the opinion of the Court.

A company that is a party to a collective-bargaining agreement may have a contractual duty to make contributions to a pension fund during the term of the agreement and, in addition, may have a duty under the National Labor Relations Act (NLRA) to continue making such contributions after the expiration of the contract and while negotiations for a new contract are in process. In 1980, Congress amended the Employee Retirement Income Security Act (ERISA) to provide trustees of multiemployer benefit plans with an effective federal remedy to collect delinquent contributions. The question presented in this case is whether that remedy encompasses actions based on an alleged breach of the employer’s statutory duty as well as those based on an alleged breach of contract. We agree with the Court of Appeals’ conclusion that the remedy is limited to the collection of “promised contributions.”

I

Prior to 1983, respondent was a member of the Associated General Contractors of California and a party to two multiemployer collective-bargaining agreements negotiated on its behalf by that association. The agreements included provisions requiring respondent to make monthly contributions to eight different employee benefit plans. The collective-bargaining agreements, which were executed in 1980, had an expiration date of June 15, 1983.

On April 1, 1983, respondent notified both unions that it had terminated the association’s authority to bargain on its behalf, that it would not be bound by either master agreement (or any successor agreement) after the June 15, 1983, expiration date, and that it was prepared to negotiate with the unions independently. Respondent continued to contribute to the eight trust funds until June 15, 1983, but has made no contributions since that date.

In December 1983, the trustees of the eight plans (petitioners) brought suit in the Federal District Court for the Northern District of California against respondent to collect contributions for the period after June 15,1983. Petitioners allege that respondent’s unilateral decision to change the terms and conditions of employment by discontinuing its contributions constituted a breach of its duty to bargain in good faith and violated § 8(a)(5) of the NLRA. 61 Stat. 141, 29 U. S. C. § 158(a)(5). The complaints alleged that the federal court had jurisdiction under §§ 502(g)(2) and 515 of ERISA.

Respondent’s answer to the complaint challenged the District Court’s jurisdiction and also denied that respondent had any statutory duty to make contributions to the funds because its negotiations with the unions had reached an “impasse.” The “impasse” issue has never been resolved

because the District Court granted a motion for summary-judgment based on two other grounds: That § 515 of ERISA does not apply to an employer’s obligations under § 8(a)(5) of the NLRA; and that the National Labor Relations Board (NLRB) has exclusive jurisdiction over petitioners’ claims.

The Court of Appeals affirmed. 779 F. 2d 497 (CA9 1985). It necessarily assumed that petitioner could prove that respondent’s postcontract refusal to contribute to the funds was an unfair labor practice. It held, however, that the claims should be resolved by the NLRB rather than by a federal district court. After examining the text and the legislative history of the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA), the Court concluded:

“We find no persuasive evidence in either the plain words or legislative history of ERISA or the MPPAA that Congress intended section 515 to be an exception to the general rule of NLRB preemption for that narrow category of suits seeking recovery of unpaid contributions accrued during the period between contract expiration and impasse.” Id., at 505.

We granted certiorari, 479 U. S. 1083 (1987), and now affirm.

II

In its 1980 amendments to ERISA, Congress responded to two concerns that are relevant to the question presented by this case. It was primarily concerned about the burden placed upon the remaining contributors to a multiemployer fund when one or more of them withdraw. In response to this concern Congress enacted an elaborate provision imposing “withdrawal liability” on such withdrawing employers. That liability arises when an employer ceases to have an “obligation to contribute” to the plan. That term is defined for the purposes of the withdrawal liability portion of the statute in language that unambiguously includes both the employer’s contractual obligations and any obligation imposed by the NLRA. That definition is significant because it demonstrates that Congress was aware of the two different sources of an employer’s duty to contribute to covered plans.

Congress was also concerned about the problem that had arisen because a substantial number of employers had failed to make their “promised contributions” on a regular and timely basis. Sections 515 and 502(g)(2) of ERISA, the provisions at issue in this case, were enacted in response to that concern. The text of § 515 plainly describes the employer’s contractual obligation to make contributions but omits any reference to a noncontractual obligation imposed by the NLRA. Section 515 provides:

“Every employer who is obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement shall, to the extent not inconsistent with law, make such contributions in accordance with the terms and conditions of such plan or such agreement.” 94 Stat. 1295, 29 U. S. C. § 1145.

The liability created by § 515 may be enforced by the trustees of a plan by bringing an action in federal district court pursuant to §502. The special remedy against employers who are delinquent in meeting their contractual obligations that is created by § 502(g)(2) includes a mandatory award of prejudgment interest plus liquidated damages in an amount at least equal to that interest, as well as attorney’s fees and costs.

The legislative history of these provisions explains that Congress added these strict remedies to give employers a strong incentive to honor their contractual obligations to contribute and to facilitate the collection of delinquent accounts. That history contains no mention of the employer’s statutory duty to make postcontract contributions while negotiations for a new contract are being conducted. Thus, both the text and the legislative history of §§ 515 and 502(g)(2) provide firm support for the Court of Appeals’ conclusion that this remedy is limited to the collection of “promised contributions” and does not confer jurisdiction on district courts to determine whether an employer’s unilateral decision to refuse to make postcontract contributions constitutes a violation of the NLRA.

Ill

Petitioners, supported by the United States as Amicus Curiae, advance two policy arguments for giving §515 a broad construction that would include postcontract delinquencies. First, they argue that the reasons for giving a district court jurisdiction of collection actions apply to post-contract delinquencies as well as those arising during the term of the contract and that it is unwise to leave a “gap” in the enforcement scheme. Second, they argue that the remedies available in NLRB proceedings are inadequate.

Our principal reason for rejecting these arguments is our conviction that Congress’ intent is so plain that policy arguments of this kind must be addressed to the body that has the authority to amend the legislation, rather than one whose authority is limited to interpreting it. We nevertheless note that there are countervailing policy arguments that make it highly unlikely that the limited reach of the statute is the consequence of inadvertence rather than deliberate choice.

With respect to the asserted “gap” in the enforcement scheme, three observations are pertinent. First, the incidence of the asserted gap is unknown. Presumably most employers who anticipate a continuing relationship with a union honor their obligations to preserve the status quo during negotiations for a new contract. If a new contract is ultimately signed, it should define the employer’s obligations during the period subsequent to the expiration of the preceding contract; therefore, any delinquency during that period would be covered by § 515. On the other hand, if no new contract is ever signed, there is at least a possibility that an impasse had been reached either before, or only a short time after, the expiration of the old contract. The fact that this type of delinquency appears not even to have been called to the attention of Congress indicates that it may not be a problem of serious magnitude.

Second, the issues that must be decided in a dispute over an employer’s refusal to make any postcontract contributions are more complex than those that are presented in a simple collection action. Whereas it is entirely appropriate to award prejudgment interest or liquidated damages as a remedy for an employer’s failure to make the payments specified in a contract, those remedies are problematic in cases in which there is a good-faith dispute over both the existence and the extent of the employer’s liability. The question whether and when an impasse has been reached is often a matter of judgment based on an evaluation of the parties’ bargaining history against standards that are imprecise at best.

Third, whether an employer’s unilateral decision to discontinue contributions to a pension plan constitutes a violation of the statutory duty to bargain in good faith is the kind of question that is routinely resolved by the administrative agency with expertise in labor law. There are situations in which district judges must occasionally resolve labor issues, but they surely represent the exception rather than the rule. In cases like this, which involve either an actual or an “arguable” violation of §8 of the NLRA, federal courts typically defer to the judgment of the NLRB. See San Diego Building Trades Council v. Garmon, 359 U. S. 236, 245 (1959).

Petitioners may be correct in contending that the remedies available in an NLRB proceeding are less effective than an ERISA action would be. Under ERISA they are entitled to attorney’s fees, prejudgment interest, and liquidated damages, whereas the scope of relief available in an NLRB proceeding is often a matter of agency discretion. Moreover, an unfair labor practice charge must be filed within a 6-month period and the general counsel has discretion to refuse to issue a complaint if she is not persuaded that the charge has merit or is of sufficient importance to justify prosecution. Finally, the employer and the union may enter into a settlement that either reduces, or even might waive, the employer’s postcontract obligations to contribute to the pension fund.

But these asserted defects in petitioners’ labor law remedy are characteristic of all unfair labor practice proceedings before the NLRB. If the labor legislation were simply repealed, in toto, petitioners would have no basis whatsoever for claiming that an employer had any duty to continue making contributions to a fund after the expiration of its contractual commitment to do so. The duty that does exist is simply a consequence of a broader labor law duty that was created to protect the collective-bargaining process. Unilateral changes in the terms and conditions of employment are prohibited, not to vindicate the interests that motivated the enactment of § 515 in 1980, but rather to carry out the purposes of the NLRA. The net effect of the labor law duties imposed on employers by that legislation provides a substantial benefit to ERISA plan trustees, but Congress has not provided them with a unique and preferred procedure for obtaining redress for an employer’s violation of its duty to bargain with the union.

The judgment of the Court of Appeals is

Affirmed.

Justice Kennedy took no part in the consideration or decision of this case.

       One agreement was with the District Council of Plasterers and Cement Masons of Northern California and the other was with the Northern California District Council of Laborers.

       Those eight plans are: The Laborers Health and Welfare Trust Fund for Northern California; the Laborers Pension Trust Fund for Northern California; the Laborers Vacations-Holiday-Dues Trust Fund for Northern California; the Laborers Training and Retraining Trust Funds for Northern California; the Cement Masons’ Health and Welfare Trust Fund for Northern California; the Cement Masons Pension Trust Fund for Northern California; the Cement Masons Vacation-Holiday-Supplemental Dues Trust Fund for Northern California; and the Cement Masons Apprenticeship and Training Trust Fund for Northern California Fund.

       The named parties are the plans, rather than the trustees, but the relevant statute refers to an action “by a fiduciary for or on behalf of a plan.” 29 U. S. C. § 1132(g)(2).

       “As a general rule, federal courts do not have jurisdiction over activity [that] is ‘arguably subject to § 7 or § 8 of the [NLRA],’ and they ‘must defer to the exclusive competence of the National Labor Relations Board.’ ” Kaiser Steel Corp. v. Mullins, 455 U. S. 72, 83 (1982) (quoting San Diego Building Trades Council v. Garmon, 359 U. S. 236, 245 (1959)). We have also held, however, that “federal courts may decide labor law questions that emerge as collateral issues in suits brought under independent federal remedies . . . .” Connell Construction Co. v. Plumbers & Steamfitters, 421 U. S. 616, 626 (1975). The question in this ease is whether Congress has provided, through ERISA §§ 502(g)(2) and 515, such an “independent federal remedy.”
      The complaints also alleged jurisdiction under § 301 of the Labor Management Relations Act (LMRA), 61 Stat. 156, 29 U. S. C. § 185, but petitioners now rely entirely on ERISA to support federal jurisdiction.

       As the Court of Appeals correctly stated:
      “ ‘Impasse’ is an imprecise term of art:
      “The definition of an ‘impasse’ is understandable enough — that point at which the parties have exhausted the prospects of concluding an agreement and further discussions would be fruitless — but its application can be difficult. Given the many factors commonly itemized by the Board and courts in impasse cases, perhaps all that can be said with confidence is that an impasse is a ‘state of facts in which the parties, despite the best of faith, are simply deadlocked.’ The Board and courts look to such matters as the number of meetings between the company and the union, the length of those meetings and the period of time that has transpired between the start of negotiations and their breaking off. There is no magic number of meetings, hours or weeks which will reliably determine when an impasse has occurred.
      “R. Gorman, Basic Text on Labor Law: Unionization and Collective Bargaining 448 (1976) (citation omitted).” 779 F. 2d 497, 500, n. 3 (CA9 1985).
      If the parties were indeed at an impasse, then the employer’s statutory duty to maintain the status quo during postcontract negotiations, see n. 6, infra, would end. See, e. g., American Ship Building Co. v. NLRB, 380 U. S. 300, 318 (1965) (no unfair labor practice “when, after a bargaining impasse has been reached, [employer] temporarily shuts down his plant and lays off his employees for the sole purpose of bringing economic pressure to bear in support of his legitimate bargaining position”); Taft Broadcasting Co., 163 N. L. R. B. 475, 478 (1967) (“[A]fter bargaining to an impasse, that is, after good-faith negotiations have exhausted the prospects of concluding an agreement, an employer does not violate the Act by making unilateral changes that are reasonably comprehended within his preimpasse proposals”), aff’d sub nom. American Federation of Television & Radio Artists v. NLRB, 129 U. S. App. D. C. 399, 395 F. 2d 622 (1968). Here, since the District Court determined on motion for summary judgment that it had no jurisdiction to entertain plaintiffs’ unfair labor practice claim, the factually disputed impasse issue was never resolved.

       “Freezing the status quo ante after a collective agreement has expired promotes industrial peace by fostering a non-coercive atmosphere that is conducive to serious negotiations on a new contract. Thus, an employer’s failure to honor the terms and conditions of an expired collective-bargaining agreement pending negotiations on a new agreement constitutes bad faith bargaining in breach of sections 8(a)(1), 8(a)(5) and 8(d) of the National Labor Relations Act.... NLRB v. Katz, 369 U. S. 736, 743 . . . (1962). Consequently, any unilateral change by the employer in the pension fund arrangements provided by an expired agreement is an unfair labor practice. Peerless Roofing Co. v. NLRB, 641 F. 2d 734, 735 (9th Cir. 1981); Producer’s Dairy Delivery Co. v. Western Conference of Teamsters Pension Trust Fund, 654 F. 2d 625, 627 (9th Cir. 1981).” 779 F. 2d, at 500.

       All other Courts of Appeals that have addressed this issue have reached the same result. See New Bedford Fishermen’s Welfare Fund v. Baltic Enterprises, Inc., 813 F. 2d 503 (CA1 1987); Moldovan v. Great Atlantic & Pacific Tea Co., 790 F. 2d 894, 900-901 (CA3 1986); U.A. 198 Health & Welfare, Education & Pension Funds v. Rester Refrigeration Service, Inc., 790 F. 2d 423 (CA5 1986).

       See MPPAA § 3(a)(4), 94 Stat. 1209, 29 U. S. C. § 1001a (a)(4).

       See MPPAA § 104, 94 Stat. 1217-1244, 29 U. S. C. §§ 1381-1405.

       Section 4203(a) of ERISA provides:
      “For purposes of this part, a complete withdrawal from a multiemployer plan occurs when an employer—
      “(1) permanently ceases to have an obligation to contribute under the plan, or
      “(2) permanently ceases all covered operations under the plan.” 94 Stat. 1218, 29 U. S. C. § 1383(a).
      Neither petitioners nor respondent suggests that respondent has withdrawn from the plans.

       Under the subhead “obligation to contribute; special rules,” §4212(a) of ERISA provides:
      “For purposes of this part, the term ‘obligation to contribute’ means an obligation to contribute arising—
      “(1) under one or more collective bargaining (or related) agreements, or
      “(2) as a result of a duty under applicable labor-management relations law, but
      “does not include an obligation to pay withdrawal liability under this section or to pay delinquent contributions.” 94 Stat. 1233, 29 U. S. C. § 1392(a).

       “Delinquencies of employers in making required contributions are a serious problem for most multiemployer plans. Failure of employers to make promised contributions in a timely fashion imposes a variety of costs on plans. While contributions remain unpaid, the plan loses the benefit of investment income that could have been earned if the past due amounts had been received and invested on time. Moreover, additional administrative costs are incurred in detecting and collecting delinquencies. Attorneys fees and other legal costs arise in connection with collection efforts.” Senate Committee on Labor and Human Resources, 96th Cong., 2d Sess., S. 1076, The Multiemployer Pension Plan Amendments Act of 1980: Summary and Analysis of Consideration 43 (Comm. Print 1980) (emphasis added).

       Section 502(g)(2) provides:
      “In any action under this title by a fiduciary for or on behalf of a plan to enforce section 515 of this title in which a judgment in favor of the plan is awarded, the court shall award the plan—
      “(A) the unpaid contributions,
      “(B) interest on the unpaid contributions,
      “(C) an amount equal to the greater of—
      “(i) interest on the unpaid contributions, or
      “(ii) liquidated damages provided for under the plan in an amount not in excess of 20 percent (or such higher percentage as may be permitted under Federal or State law) of the amount determined by the court under subparagraph (A),
      “(D) reasonable attorney’s fees and costs of the action, to be paid by the defendant, and
      “(E) such other legal or equitable relief as the court deems appropriate. “For purposes of this paragraph, interest on unpaid contributions shall be determined by using the rate provided under the plan, or, if none, the rate prescribed under section 6621 of the Internal Revenue Code of 1954.” 94 Stat. 1295, 29 U. S. C. § 1132(g)(2).

       “Recourse available under current law for collecting delinquent contributions is insufficient and unnecessarily cumbersome and costly. Some simple collection actions brought by plan trustees have been converted into lengthy, costly and complex litigation concerning claims and defenses unrelated to the employer’s promise and the plans’ entitlement to the contributions. This should not be the case. Federal pension law must permit trustees of plans to recover delinquent contributions efficaciously. Sound national pension policy demands that employers who enter into agreements providing for pension contributions not be permitted to repudiate their pension promises.” Committee Print, supra n. 12, at 44 (emphases added).
      See also n. 15, infra.

       Petitioners rely on selected excerpts of legislative history, but none refers to the NLRA duty, and some actually tend to disprove petitioners’ case. Senator Williams, Chairman of the Senate Committee on Labor and Human Resources, remarked on the Senate floor that “[o]n this whole question of delinquent contributions and the withdrawal liability collection, the bill provides a direct and I suggest unambiguous cause of action under ERISA to a plan against a delinquent employer.” 126 Cong. Ree. 20180 (1980). This statement does not address the issue of the source of the employer’s obligations. Representative Thompson, Chairman of the House Education and Labor Committee, explained similarly that § 515 would provide “a direct, unambiguous ERISA cause of action to a plan against a delinquent employer.” Id., at 23039. He added:
      “The public policy of this legislation to foster the preservation of the private multiemployer plan system necessitates that provision be made to discourage delinquencies and simplify delinquency collection. The bill imposes a Federal statutory duty to contribute on employers that are already obligated to make contributions to multiemployer plans. A plan sponsor that prevails in any action to collect delinquent contributions will be entitled to recover the delinquent contributions, court costs, attorney’s fees, interest on the contributions owed and liquidated damages. The intent of this section is to promote the prompt payment of contributions and assist plans in recovering the costs incurred in connection with delinquencies.” Ibid, (emphases added).
      Petitioners add the emphases in their brief, but even the highlighted sentences do not speak to the issue of the source of an employer’s obligations.
      In fact, parts of Representative Thompson’s statement not excerpted by petitioners tend to disprove their case. At one point, he stated that “[failure of employers to make promised contributions in a timely fashion imposes a variety of costs on plans.” Ibid, (emphasis added). A bit later, he exclaimed that “[s]ound national pension policy demands that employers who enter into agreements providing for pension contributions not be permitted to repudiate their pension promises.” Ibid, (emphases added). Immediately following, he cited, “[i]n this regard,” five judicial decisions, endorsing three and criticizing two. As respondent correctly explains, all five cases “concerned extraneous matters interposed as defenses to a clear contractual obligation arising during the term of the labor agreement.” Brief for Respondent 18, n. 11. That is, none dealt with a statutory, post-contract obligation. See Lewis v. Benedict Coal Corp., 361 U. S. 459 (1960) (union’s promises not conditions precedent to employer’s promise to pay royalties to fund; decision endorsed); Lewis v. Mill Ridge Coals, Inc., 298 F. 2d 552 (CA6 1962) (employer owes contributions to fund under labor agreement regardless of alleged failure of consideration; decision endorsed); Huge v. Long’s Hauling Co., 590 F. 2d 457 (CA3 1978) (employer owes contributions to fund under labor agreement regardless of alleged union antitrust violation and unfair labor practices; decision endorsed); Western Washington Laborers-Employers Health & Security Trust Fund v. McDowell, 103 LRRM 2219 (WD Wash. 1979) (failure of union to achieve majority status relieves employer of obligation to contribute under prehire agreement; decision criticized); Washington Area Carpenters' Welfare Fund v. Overhead Door Co., 488 F. Supp. 816 (DC 1980) (same), rev’d, 220 U. S. App. D. C. 273, 681 F. 2d 1 (1982), cert. denied, 461 U. S. 926 (1983). See also 126 Cong. Rec. 23288 (1980) (floor statement of Sen. Williams, identical to that of Rep. Thompson).

       Petitioners advance three unpersuasive arguments for the opposite conclusion. First, petitioners offer an alternative reading of what they deem § 515’s “operative phrase,” i. e., “employer who is obligated to make contributions . . . under the terms of a collectively bargained agreement.” Petitioners suggest that this language “can be read to refer to employers whose contributions are defined and measured by the terms of a collective-bargaining agreement, but whose obligation to contribute exists as a matter of law, independent of the contract. So read, Section 515 would require employers to adhere to all legal duties to make contributions to collectively-bargained plans.” Brief for Petitioners 14 (emphasis in original). In other words, petitioners construe the word “under” to mean “defined and measured by,” and read “obligated” to include both contractual and statutory duties. But if Congress had meant to say this surely it could have done so more clearly; as written, § 515 plainly refers to obligations that themselves arise from either a “plan” or a “collectively bargained agreement.”
      Petitioners next point out that ERISA § 4301(b) provides that “[i]n any action under this section to compel an employer to pay withdrawal liability, any failure of the employer to make any withdrawal liability payment within the time prescribed shall be treated in the same manner as a delinquent contribution (within the meaning of section 515).” 94 Stat. 1263, 29 U. S. C. § 1451(b). Because of this “statutory linkage” between the remedies available for withdrawal and delinquency liability, petitioners contend, “it is appropriate and instructive in gleaning the intended scope of the Section 515 duty to examine how Congress defined the obligation to contribute for withdrawal liability purposes.” Brief for Petitioners 21. Since withdrawal liability may arise from either a contractual or a statutory duty, see ERISA § 4212(a), n. 11, supra, petitioners conclude that delinquency liability must be similarly engendered.
      It is easy to see that this argument is a false syllogism, for it reasons from the fact that Congress intended withdrawal and delinquency liability to have similar remedies to the erroneous conclusion that withdrawal and delinquency liability are themselves equivalent because both originated in contractual and statutory duties. As we have explained in the text, though, § 4212(a) actually cuts against petitioners, since it makes clear that while withdrawal liability may arise from both contractual and statutory duties, § 515 provides only for a contractual origin for delinquency liability.
      Finally, petitioners maintain that if § 515 “were read to apply only to obligations imposed by collective bargaining agreements, the section would be entirely duplicative of Section 301 of the LMRA, 29 U. S. C. § 185, which creates a federal cause of action for the breach of such contracts.” Brief for Petitioners 24. But, as respondent points out, “this argument conveniently ignores the specific purpose of Section 515.” Brief for Respondent 22. That is, the new § 502(g)(2) remedies of mandatory prejudgment interest, liquidated damages equal at least to that interest, and attorney’s fees and costs, plus such other relief as the court deems appropriate, are indeed “the potent new weapon previously unavailable to plans under” § 301 of the LMRA. Brief for Respondent 23.

       Even petitioners concede that “most collection actions are brought to enforce an existing collective bargaining agreement.” Brief for Petitioners 6; see id., at 13.

       See n. 5, supra. Other employer defenses that raise complex factual and legal questions may also be asserted. In this case, for example, respondent avers that “issues exist concerning the unions’ waiver of bargaining rights and their failure to satisfy their statutory bargaining obligations under Section 8(b)(3) of the NLRA.” Brief for Respondent 36 (footnote omitted).

       See n. 4, supra. It is true, as petitioners point out, that district courts may find it necessary to decide whether an impasse occurred in withdrawal liability cases in which there is a dispute over the date of withdrawal. In such a proceeding, however, there would not normally be any claim that the employer was guilty of an unfair labor practice or that liquidated damages were mandated because the employer misjudged the impasse date.