B-210039 L/M, DEC 10, 1982

B-210039 L/M, DEC 10, 1982

PRECIS-UNAVAILABLE

VIC FAZIO, HOUSE OF REPRESENTATIVES:

ON NOVEMBER 29, 1982, YOU ASKED FOR OUR DECISION ON THE EXACT EFFECT OF SECTION 130(C) OF THE ACT OF OCTOBER 1, 1981, PUBLIC LAW 97-51, 95 STAT. 958, 966, SHOULD THE CONGRESS FAIL TO ENACT A CONTINUATION OF THE PAY CAP AS IMPOSED UNTIL DECEMBER 17, 1982, BY SECTION 101(E) OF THE ACT OF OCTOBER 2, 1982, PUBLIC LAW 97-276, 96 STAT. 1186, 1189.

SECTION 130(C) MAKES A PERMANENT APPROPRIATION "FOR 'COMPENSATION OF MEMBERS' *** AS AUTHORIZED BY LAW AND AT SUCH LEVEL RECOMMENDED BY THE PRESIDENT FOR FEDERAL EMPLOYEES FOR THAT FISCAL YEAR ***." THAT SECTION ALSO PROVIDES: "SUCH SUMS WHEN PAID SHALL BE IN LIEU OF ANY SUMS ACCRUED IN PRIOR YEARS BUT NOT PAID."

FUNDS ARE THUS APPROPRIATED BY SECTION 130(C) TO PAY MEMBERS' PAY AS OTHERWISE AUTHORIZED BY LAW, BUT THAT SECTION DOES NOT MODIFY THE LEGAL RATES OF PAY PRESCRIBED FOR MEMBERS. THE PROVISION THAT PAYMENTS MADE FROM THAT APPROPRIATION WILL BE IN LIEU OF SUMS ACCRUED AND NOT PAID HAS THE EFFECT OF VOIDING CLAIMS OF MEMBERS FOR BACKPAY - PAY WHICH WAS NOT PAID IN PRIOR YEARS BY VIRTUE OF APPROPRIATION PAY LIMITATIONS.

IN KEEPING WITH THAT ANALYSIS OF SECTION 130(C) WE FIND THAT, UNDER THE PROVISIONS OF STATUTORY LAW, THE SCHEDULED RATE OF PAY FOR MEMBERS IS NOW $77,300. FN1 APPROPRIATED FUNDS HAVE BEEN DENIED TO PAY MEMBERS MORE THAN $60,662.50, BUT THAT APPROPRIATION LIMITATION EXPIRES DECEMBER 17, 1982. IF THE APPROPRIATION LIMITATION EXPIRES AND A LIMITATION IS NOT OTHERWISE ENACTED, THE PAY OF MEMBERS WILL AUTOMATICALLY INCREASE TO THE $77,300 RATE AUTHORIZED BY LAW. IN TERMS OF SECTION 130(C) THIS RATE IS DERIVED FROM THE $74,300 RATE WHICH WAS IN EFFECT DURING FISCAL YEAR 1982 AS INCREASED BY 4 PERCENT, WHICH WAS THE LEVEL OF INCREASE RECOMMENDED BY THE PRESIDENT FOR FEDERAL EMPLOYEES FOR FISCAL YEAR 1983.

THE LEGAL RATES OF PAY FOR MEMBERS ARE DERIVED FROM THE APPLICATION OF THE ACT OF DECEMBER 16, 1967, PUBLIC LAW 90-206, TITLE II, 81 STAT. 42, AS AMENDED, 2 U.S.C. 351-361 AND THE PROVISIONS OF THE 1975 COMPARABILITY INCREASE LEGISLATION. THE ACT OF AUGUST 9, 1975, PUBLIC LAW 94-82, TITLE II, 89 STAT. 421, 2 U.S.C. 31. THE APPROPRIATION LIMITATIONS WHICH HAVE KEPT THE PAY OF MEMBERS AT $60,662.50 HAVE NOT CHANGED THE PROVISIONS OF THOSE STATUTES. THEY HAVE WITHHELD A PART OF THE PAY OTHERWISE DUE UNDER THE APPLICABLE PROVISIONS OF LAW, BUT THE APPROPRIATION LIMITATIONS DO NOT ALTER THE STATUTORY RATES OTHERWISE PRESCRIBED. SEE UNITED STATES V. WILL, 449 U.S. 200 (1980).

THE LANGUAGE "SUCH SUMS WHEN PAID SHALL BE IN LIEU OF ANY SUMS ACCRUED IN PRIOR YEARS BUT NOT PAID" WAS INCLUDED ON THE PREMISE THAT ABSENT THAT PROVISION THERE WOULD HAVE REMAINED AN OPEN QUESTION AS TO THE LIABILITY OF THE GOVERNMENT ON CLAIMS FOR BACKPAY OF MEMBERS ONCE THE APPROPRIATION PAY RESTRICTION WAS REMOVED. THE INCLUSION OF THE PROVISION RESOLVES THE ISSUE AND VOIDS CLAIMS OF MEMBERS FOR BACKPAY. IN ARRIVING AT THIS RESULT WE HAVE CONSIDERED NOT ONLY THE LANGUAGE OF SECTION 130(C) BUT ALSO ITS LEGISLATIVE HISTORY, INCLUDING THE DEBATES IN THE HOUSE AND SENATE.

ACCORDINGLY, WE FIND THAT IF THE PAY CAP LANGUAGE IS NOT RETAINED AFTER DECEMBER 17, 1982, THE PAY OF MEMBERS WILL AUTOMATICALLY INCREASE TO $77,300, UNLESS SOME OTHER PROVISION OF LAW IS ENACTED TO PREVENT THAT RESULT.

THE IMPACT FIGURES WHICH YOU REQUESTED WILL BE SUBMITTED TO YOU BY SEPARATE LETTER.

FN1 WE HAVE USED THE FIGURES $77,300 AND $60,662.50 IN THIS LETTER AS A MATTER OF CONVENIENCE. WE RECOGNIZE THAT THOSE RATES APPLY TO MEMBERS GENERALLY BUT THAT HIGHER RATES OF PAY APPLY TO THE PRESIDENT PRO TEMPORE OF THE SENATE, THE MAJORITY AND MINORITY LEADERS OF THE HOUSE AND SENATE AND THE SPEAKER OF THE HOUSE.