B-193584, JANUARY 23, 1979

B-193584, JANUARY 23, 1979

DIGEST: LAND COMMISSIONERS APPOINTED BY FEDERAL DISTRICT COURTS IN CONDEMNATION CASES ARE COMPENSATED BY ADMINISTRATIVE OFFICE OF UNITED STATES COURTS UNDER 5 U.S.C. 3109 AND JUDICIAL APPROPRIATIONS ACT AT NOT TO EXCEED HIGHEST DAILY RATE PAYABLE UNDER GENERAL SCHEDULE. ALTHOUGH COMMISSIONERS MAY BE COMPENSATED AT THE DAILY RATE REGARDLESS OF THE NUMBER OF HOURS WORKED IN A DAY, THE ADMINISTRATIVE OFFICE MAY, IN ITS DISCRETION, FIX AN HOURLY RATE. SINCE SUCH DECISION IS DISCRETIONARY, THE HOURLY RATE MAY BE FIXED AT ANY AMOUNT WITHOUT REGARD TO 5 U.S.C. 5504(B).

LAND COMMISSIONERS - COMPENSATION:

BY LETTER DATED NOVEMBER 22, 1978, THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS HAS REQUESTED AN OPINION CONCERNING THE HOURLY RATE OF COMPENSATION IT MAY PAY LAND COMMISSIONERS APPOINTED BY THE FEDERAL DISTRICT COURTS PURSUANT TO RULE 71AH) OF THE FEDERAL RULES OF CIVIL PROCEDURE IN EMINENT DOMAIN CASES. SPECIFICALLY, THE ISSUE PRESENTED IS WHETHER THE ADMINISTRATIVE OFFICE HAS AUTHORITY TO COMPENSATE LAND COMMISSIONERS AT AN HOURLY RATE IN EXCESS OF $22.84, THE CURRENT MAXIMUM HOURLY RATE OF PAY FOR GENERAL SCHEDULE EMPLOYEES AS COMPUTED UNDER 5 U.S.C. 5504(B) (1976).

EFFECTIVE OCTOBER 1, 1977, ADMINISTRATIVE RESPONSIBILITY FOR COMPENSATING THE LAND COMMISSIONERS WAS TRANSFERRED FROM THE DEPARTMENT OF JUSTICE TO THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS. IN THE JUDICIAL APPROPRIATIONS ACT FOR THE FISCAL YEAR ENDING SEPTEMBER 30, 1978, TITLE IV, PUB. L. NO. 95-86, 91 STAT. 419, IT WAS PROVIDED:

"FOR * * * COMPENSATION OF COMMISSIONERS APPOINTED IN CONDEMNATION CASES PURSUANT TO RULE 71AH) OF THE FEDERAL RULES OF CIVIL PROCEDURE; $23,250,000, TO REMAIN AVAILABLE UNTIL EXPENDED: PROVIDED, THAT THE COMPENSATION OF LAND COMMISSIONERS SHALL NOT EXCEED THE DAILY EQUIVALENT OF THE HIGHEST RATE PAYABLE UNDER SECTION 5332 OF TITLE 5, UNITED STATES CODE."

SECTION 402 OF THE SAME ACT FURTHER PROVIDED:

"APPROPRIATIONS AND AUTHORIZATIONS MADE IN THIS TITLE WHICH ARE AVAILABLE FOR SALARIES AND EXPENSES SHALL BE AVAILABLE FOR SERVICES AS AUTHORIZED BY 5 U.S.C. 3109."

SIMILAR PROVISIONS ARE FOUND IN THE JUDICIAL APPROPRIATIONS ACT FOR THE FISCAL YEAR 1979. SEE PUB. L. 95-431, OCTOBER 10, 1978.

UNTIL OCTOBER 1, 1977, THE DEPARTMENT OF JUSTICE HAD ADMINISTERED THE PAY OF LAND COMMISSIONERS. UNDER ITS ADMINISTRATION, LAND COMMISSIONERS WERE REGARDED AS CONTRACTORS AND, FROM JULY 1, 1973, TO JULY 1, 1975, WERE COMPENSATED $40 PER HOUR FOR TIME SPENT IN HEARINGS AND WRITING REPORTS AND $30 PER HOUR FOR TIME SPENT IN A TRAVEL STATUS. FROM JULY 1, 1975, UNTIL OCTOBER 1, 1977, LAND COMMISSIONERS WERE COMPENSATED AT THE DAILY RATE OF PAY FOR GS-18 REGARDLESS OF THE NUMBER OF HOURS WORKED.

AFTER A REVIEW OF THE CIRCUMSTANCES UNDER WHICH THEY SERVE, THE ADMINISTRATIVE OFFICE CONCLUDED THAT LAND COMMISSIONERS PERFORM A FEDERAL FUNCTION UPON APPOINTMENT BY AND SUBJECT TO THE CLOSE SUPERVISION OF THE FEDERAL DISTRICT COURTS AND, HENCE, THAT THEY SHOULD BE REGARDED AS EMPLOYEES RATHER THAN INDEPENDENT CONTRACTORS. ACCORDINGLY, THE ADMINISTRATIVE OFFICE CONSIDERS LAND COMMISSIONERS APPOINTED UNDER RULE 71AH) TO BE EMPLOYED UNDER 5 U.S.C. 3109.

BY EXPRESS PROVISION, 5 U.S.C. 3109 LIMITS THE PAY OF EXPERTS AND CONSULTANTS WHOSE SERVICES ARE SECURED BY APPOINTMENT TO THE HIGHEST DAILY RATE PAYABLE UNDER 5 U.S.C. 5332. ABSENT SPECIFIC AUTHORITY, AGENCIES SUBJECT TO THE GENERAL SCHEDULE ARE LIMITED UNDER THAT SECTION TO THE TOP STEP OF GS-15. 27 COMP.GEN. 46 (1947); 29 ID. 267 (1949); B-134645, JANUARY 7, 1958, CF. 43 COMP.GEN. 509 (1964); 51 ID. 225 (1971). HOWEVER, THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, MAY COMPENSATE COURT EMPLOYEES WITHOUT REGARD TO THE GENERAL SCHEDULE. SEE 28 U.S.C. 604(A)(5). THUS, UNDER 5 U.S.C. 3109, AS WELL AS UNDER THE QUOTED COMPENSATION LIMITATION IN THE JUDICIAL APPROPRIATIONS ACT, LAND COMMISSIONERS MAY BE PAID AT A RATE NOT TO EXCEED THE DAILY EQUIVALENT OF GS-18, PRESENTLY $182.72 A DAY.

THE ADMINISTRATIVE OFFICE HAS FURTHER EXPLAINED THAT ON SOME DAYS A LAND COMMISSIONER MAY SPEND ONLY A FEW MINUTES OR A FEW HOURS ON COMMISSION WORK AND THAT HE IS OTHERWISE FREE TO PURSUE HIS PRIVATE LAW PRACTICE OR OTHER OCCUPATION. FOR THIS REASON, IT HAS DECIDED TO COMPENSATE COMMISSIONERS ON AN HOURLY RATE BASIS COMMENSURATE WITH THE AMOUNT OF WORK PERFORMED RATHER THAN TO PAY THEM ON A DAILY RATE BASIS. BECAUSE OF THE DAILY COMPENSATION LIMITATION TO WHICH LAND COMMISSIONERS ARE SUBJECT AND THE COMPUTATIONAL PRINCIPLES APPLICABLE TO JUDICIAL AND OTHER EMPLOYEES UNDER 5 U.S.C. 5504(B), THE ADMINISTRATIVE OFFICE IS OF THE OPINION THAT IT MAY NOT PAY LAND COMMISSIONERS AT AN HOURLY RATE IN EXCESS OF ONE- EIGHTH OF $182.72, OR $22.84 PER HOUR. HOWEVER, POINTING TO THE DEPARTMENT OF JUSTICE'S PREVIOUS POLICY OF COMPENSATING COMMISSIONERS AT A HIGHER HOURLY RATE, OR AT THE MAXIMUM DAILY RATE REGARDLESS OF THE NUMBER OF HOURS WORKED, MEMBERS OF THE JUDICIARY RESPONSIBLE FOR APPOINTING LAND COMMISSIONERS SUGGEST THAT IT IS WITHIN THE ADMINISTRATIVE OFFICE'S DISCRETION TO PAY A HIGHER HOURLY RATE, PROVIDED THAT THE AGGREGATE AMOUNT OF PAY FOR HOURS WORKED IN A SINGLE DAY DOES NOT EXCEED $182.72.

THE COMPUTATION PRINCIPLES SET FORTH AT 5 U.S.C. 5504(B) ARE AS FOLLOWS:

"(B) FOR PAY COMPUTATION PURPOSES AFFECTING AN EMPLOYEE, THE ANNUAL RATE OF BASIC PAY ESTABLISHED BY OR UNDER STATUTE IS DEEMED PAYMENT FOR EMPLOYMENT DURING 52 BASIC ADMINISTRATIVE WORKWEEKS OF 40 HOURS. WHEN IT IS NECESSARY FOR COMPUTATION OF PAY UNDER THIS SUBSECTION TO CONVERT AN ANNUAL RATE OF BASIC PAY TO A BASIC HOURLY, DAILY, WEEKLY, OR BIWEEKLY RATE, THE FOLLOWING RULES GOVERN:

"(1) TO DERIVE AN HOURLY RATE, DIVIDE THE ANNUAL RATE BY 2,080.

"(2) TO DERIVE A DAILY RATE, MULTIPLY THE HOURLY RATE BY THE NUMBER OF DAILY HOURS OF SERVICE REQUIRED.

"(3) TO DERIVE A WEEKLY OR BIWEEKLY RATE, MULTIPLY THE HOURLY RATE BY 40 OR 80, AS THE CASE MAY BE."

IN MATTER OF JEROME E. HASS, B-90867, NOVEMBER 21, 1978, INCIDENT TO OUR HOLDING THAT EXPERTS AND CONSULTANTS ARE SUBJECT TO THE LIMITATION ON PAY IMPOSED BY 5 U.S.C. 5308, WE HELD THAT SUCH INDIVIDUALS APPOINTED UNDER 5 U.S.C. 3109 ARE NOT EXEMPT FROM THE COMPUTATIONAL RULES ENUNCIATED AT 5 U.S.C. 5504(B). IN THAT DECISION WE RECOGNIZED THAT THE MAXIMUM DAILY AND BIWEEKLY RATES WHICH EXPERTS AND CONSULTANTS MAY BE COMPENSATED ARE TO BE DERIVED UNDER 5 U.S.C. 5504(B). WE DID NOT, HOWEVER, ADDRESS THE QUESTION OF WHETHER INDIVIDUALS EMPLOYED UNDER 5 U.S.C. 3109, IF PAID ON AN HOURLY BASIS, ARE LIMITED TO AN HOURLY RATE DETERMINED IN STRICT ACCORDANCE WITH 5 U.S.C. 5504(B)(1).

WE HAVE RECOGNIZED THAT AGENCIES MAY COMPENSATE EXPERTS AND CONSULTANTS ON A DAILY RATE BASIS REGARDLESS OF THE NUMBERS OF HOURS WORKED. COMP.GEN. 667 (1967) AND 28 ID. 328 (1948). IN THE JEROME E. HASS CASE WE POINTED OUT THAT THE LANGUAGE OF 5 U.S.C. 3109 AUTHORIZING INDIVIDUALS APPOINTED THEREUNDER TO BE PAID AT A "RATE NOT IN EXCESS OF THE DAILY EQUIVALENT OF THE HIGHEST RATE PAYABLE UNDER 5 U.S.C. 5332" DOES NOT EXEMPT THEM FROM THE BIWEEKLY PAY PERIOD LIMITATION IMPOSED BY 5 U.S.C. 5308, BUT THAT THE EFFECT OF THAT LANGUAGE:

" * * * IS MERELY TO PERMIT EXPERTS AND CONSULTANTS TO BE PAID AT A DAILY RATE REGARDLESS OF THE NUMBERS OF HOURS WORKED WITHIN ANY ONE DAY."

HOWEVER, NEITHER THE LIMITING LANGUAGE OF SECTION 3109 NOR THE APPROPRIATION LIMITATION OF PUB. L. NO. 95-86, SUPRA, REQUIRES AN AGENCY TO COMPENSATE EXPERTS AND CONSULTANTS ON A DAILY RATE BASIS. WITHIN ITS DISCRETION, AN AGENCY MAY COMPENSATE AN INDIVIDUAL APPOINTED UNDER 5 U.S.C. 3109 ON AN HOURLY RATE BASIS.

THE PAY COMPUTATION PRINCIPLES QUOTED ABOVE ARE REQUIRED TO BE APPLIED "WHEN IT IS NECESSARY" TO CONVERT AN ANNUAL RATE OF BASIC PAY TO AN HOURLY RATE. BECAUSE THE DECISION TO COMPENSATE EXPERTS AND CONSULTANTS ON AN HOURLY RATE BASIS IS A MATTER WITHIN AGENCY DISCRETION AND NOT REQUIRED BY LAW, WE DO NOT CONSIDER IT "NECESSARY" WITHIN THE MEANING OF 5 U.S.C. 5504(B) TO DETERMINE AN HOURLY RATE OR TO APPLY THE COMPUTATION PRINCIPLES SET FORTH BY THAT SUBSECTION TO DETERMINE THE HOURLY AMOUNT THAT THEY MAY BE COMPENSATED.

OF COURSE, THE REQUIREMENT OF SUBSECTION 5504(B)(1) TO DIVIDE THE ANNUAL RATE BY 2,080 TO DETERMINE AN HOURLY AMOUNT APPLIES INSOFAR AS IT IS NECESSARY UNDER SUBSECTION 5504(B) TO USE THAT HOURLY RATE AS A BASE FIGURE FROM WHICH TO DERIVE A DAILY, WEEKLY OR BIWEEKLY RATE. ALSO, IT IS WITHIN AN AGENCY'S DISCRETION TO COMPENSATE INDIVIDUALS APPOINTED UNDER 5 U.S.C. 3109 AT AN HOURLY RATE CALCULATED STRICTLY IN ACCORDANCE WITH SUBSECTION 5504(B)(1). WE HOLD ONLY THAT AN AGENCY HAS THE AUTHORITY TO COMPENSATE INDIVIDUALS APPOINTED UNDER 5 U.S.C. 3109 ON THE BASIS OF AN HOURLY RATE DETERMINED WITHOUT REGARD TO 5 U.S.C. 5504(B)(1). THUS, THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS MAY, IF IT DEEMS IT APPROPRIATE, SET THE HOURLY RATE OF COMPENSATION FOR LAND COMMISSIONERS AT $40, AS THE DEPARTMENT OF JUSTICE PREVIOUSLY HAD DONE, OR AT SOME OTHER AMOUNT IN EXCESS OF $22.84, PROVIDED THAT THE TOTAL AMOUNT ANY COMMISSIONER IS COMPENSATED FOR SERVICES WITHIN ANY ONE DAY DOES NOT EXCEED $182.72.