B-107827, MARCH 12, 1952, 31 COMP. GEN. 466

B-107827, MARCH 12, 1952, 31 COMP. GEN. 466

ALLOWANCES AND DIFFERENTIALS - JUDICIAL POSITIONS OUTSIDE U.S. THE PAYMENT OF A DIFFERENTIAL (COST OF LIVING ALLOWANCE) TO LAW CLERKS OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII UNDER 28 U.S.C. 604 (A) (5), WHICH AUTHORIZES THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES PORTS, TO FIX THE COMPENSATION OF LAW CLERKS AND OTHER EMPLOYEES OF THE COURT WHOSE COMPENSATION IS NOT OTHERWISE FIXED BY LAW, IS TO BE REGARDED AS "ADDITIONAL COMPENSATION," AND THEREFORE, MUST BE CONSIDERED IN COMPUTING THE AGGREGATE COMPENSATION LIMITATION THAT MAY BE PAID TO SECRETARIES AND LAW CLERKS OF JUDGES UNDER THE JUDICIARY APPROPRIATION ACT OF 1952, AS AMENDED.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, MARCH 12, 1952:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 30, 1952, REQUESTING A DECISION AS TO WHETHER THE LAW CLERKS OF JUDGES D. E. METZGER AND J. FRANK MCLAUGHLIN OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII MAY BE PAID, IN ADDITION TO THEIR REGULAR SALARIES, A DIFFERENTIAL (COST OF LIVING ALLOWANCE) OF 20 PERCENT WHICH IS ALLOWABLE TO CERTAIN OTHER GOVERNMENT EMPLOYEES IN HAWAII ON ACCOUNT OF HIGHER LIVING COSTS IN THAT AREA.

IT IS POINTED OUT THAT IN CASES WHERE PAYMENT OF DIFFERENTIALS IN TERRITORIES AND INSULAR POSSESSIONS IS AUTHORIZED BY YOU, IT IS DONE UNDER THE GENERAL POWER CONFERRED UPON THE DIRECTOR BY SECTION 604 (A) (5) OF TITLE 28 OF THE U.S.C. WHICH AUTHORIZES THE DIRECTOR TO "FIX THE COMPENSATION OF CLERKS OF COURT, DEPUTIES, LIBRARIANS, CRIERS, MESSENGERS, LAW CLERKS, SECRETARIES, STENOGRAPHERS, CLERICAL ASSISTANTS, AND OTHER EMPLOYEES OF THE COURTS WHOSE COMPENSATION IS NOT OTHERWISE FIXED BY LAW.' FURTHER, IT IS STATED THAT THE 20 PERCENT COST OF LIVING ALLOWANCE, IF ADDED TO THE ANNUAL SALARY OF THE LAW CLERKS, WILL CAUSE SUCH SALARIES WHEN COMBINED WITH THE SALARIES RECEIVED BY THE SECRETARIES OF THE RESPECTIVE JUDGES TO EXCEED THE AGGREGATE LIMITATION CONTAINED IN THE JUDICIARY APPROPRIATION ACT OF 1952, PUBLIC LAW 188, 82D CONGRESS, APPROVED OCTOBER 22, 1951, 65 STAT. 596, AS AMENDED BY SECTION 1 (D) OF THE ACT OF OCTOBER 24, 1951, 65 STAT. 613, PUBLIC LAW 201, 82D CONGRESS, WHICH AMENDS THE CLASSIFICATION ACT OF 1949.

THE JUDICIARY APPROPRIATION ACT OF 1952, 65 STAT. 596, SUPRA, IS, IN PART, AS FOLLOWS:

* * * PROVIDED, THAT THE COMPENSATION OF SECRETARIES AND LAW CLERKS OF CIRCUIT AND DISTRICT JUDGES SHALL BE FIXED BY THE DIRECTOR OF THE ADMINISTRATIVE OFFICE WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1949, EXCEPT THAT THE SALARY OF A SECRETARY SHALL CONFORM WITH THAT OF THE GENERAL SCHEDULE GRADES (GS) 4, 5, 6, 7, OR 8, AS THE APPOINTING JUDGE SHALL DETERMINE, AND THE SALARY OF A LAW CLERK SHALL CONFORM WITH THAT OF THE GENERAL SCHEDULE GRADES (GS) 5, 7, 9, 11, OR 12, AS THE APPOINTING JUDGE SHALL DETERMINE, SUBJECT TO REVIEW BY THE JUDICIAL COUNCIL OF THE CIRCUIT IF REQUESTED BY THE DIRECTOR, SUCH DETERMINATION BY THE JUDGE OTHERWISE TO BE FINAL: PROVIDED FURTHER, THAT (EXCLUSIVE OF STEP-INCREASES CORRESPONDING WITH THOSE PROVIDED FOR BY TITLE VII OF THE CLASSIFICATION ACT OF 1949 AND OF COMPENSATION PAID FOR TEMPORARY ASSISTANCE NEEDED BECAUSE OF AN EMERGENCY) THE AGGREGATE SALARIES PAID TO SECRETARIES AND LAW CLERKS APPOINTED BY ONE JUDGE SHALL NOT EXCEED $9,600 PER ANNUM, EXCEPT IN THE CASE OF THE CHIEF JUDGE OF EACH CIRCUIT AND THE CHIEF JUDGE OF EACH DISTRICT COURT HAVING FIVE OR MORE DISTRICT JUDGES, IN WHICH CASE THE AGGREGATE SALARIES SHALL NOT EXCEED $13,050 PER ANNUM.

WHILE IT IS STATED IN YOUR LETTER THAT THE $9,600 AGGREGATE LIMITATION WAS INCREASED BY SECTION 1 (D) OF PUBLIC LAW 201, SUPRA, TO $10,560 ($9,600 PLUS 10 PERCENT OF $9,600), IN FACT, SUCH LIMITATION WAS INCREASED TO $10,400, ONLY--- $800 BEING THE MAXIMUM AMOUNT OF ADDITIONAL BASIC COMPENSATION GRANTED UNDER PUBLIC LAW 201.

YOU POINT OUT THAT JUDGES METZGER AND MCLAUGHLIN ARGUE PERSUASIVELY THAT THE 20 CENT DIFFERENTIAL (COST OF LIVING ALLOWANCE) IS NOT COMPENSATION IN ADDITION TO BASIC SALARY BUT IS IN THE NATURE OF AN ALLOWANCE FOR THE HIGHER COST OF LIVING DESIGNED TO PUT THE RECIPIENT UPON A PARITY WITH OFFICERS OF THE COURTS STATIONED IN THE UNITED STATES WHO RECEIVE CORRESPONDING SALARIES, AND, THEREFORE, IS NOT SUBJECT TO THE AGGREGATE COMPENSATION LIMITATION PRESCRIBED IN THE JUDICIARY APPROPRIATION ACT OF 1952, AS AMENDED, SUPRA.

CIVILIAN EMPLOYEES UNDER THE EXECUTIVE DEPARTMENTS STATIONED IN HAWAII MAY BE PAID A COST OF LIVING ALLOWANCE OF 20 PERCENT IN ACCORDANCE WITH EXECUTIVE ORDER NO. 10000, SEPTEMBER 16, 1948, AND IMPLEMENTING REGULATIONS ISSUED PURSUANT THERETO BY THE CIVIL SERVICE COMMISSION. ALTHOUGH TERMED IN THE EXECUTIVE ORDER AND THE IMPLEMENTING REGULATIONS AS A "COST OF LIVING ALLOWANCE," SUCH ADDITIONAL AMOUNT IS BASED UPON THE AUTHORITY CONTAINED IN SECTION 207 OF THE ACT OF APRIL 20, 1948, AS AMENDED BY SECTION 104 OF THE ACT OF JUNE 30, 1948, 62 STAT. 1205, 5 U.S.C. 118H, AS FOLLOWS:

ANY APPROPRIATIONS OR FUNDS AVAILABLE TO THE EXECUTIVE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND WHOLLY OWNED GOVERNMENT CORPORATIONS FOR THE PAYMENT OF SALARIES AND COMPENSATION TO PERSONS STATIONED OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA WHOSE RATES OF BASIC COMPENSATION ARE FIXED BY STATUTE, SHALL BE AVAILABLE FOR THE PAYMENT OF ADDITIONAL COMPENSATION TO SUCH PERSONS, BASED ON LIVING COSTS SUBSTANTIALLY HIGHER THAN IN THE DISTRICT OF COLUMBIA, * * * ( ITALICS SUPPLIED.)

THUS, IT MAY BE SEEN THAT BY REASON OF THE PROVISIONS OF THE STATUTE ITSELF, SUCH ADDITIONAL AMOUNT MAY BE REGARDED ONLY AS "ADDITIONAL COMPENSATION.' SEE 28 COMP.. GEN. 465, 467; 29 ID. 25, 27.

WHILE THE EMPLOYEES HERE INVOLVED DO NOT OCCUPY POSITIONS WITHIN THE SCOPE OF SECTION 207 OF THE ACT OF APRIL 20, 1948, AS AMENDED, IT IS STATED THAT IT IS THE POLICY OF THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, TO GRANT SUPPORTING PERSONNEL OF THE COURTS, SO FAR AS POSSIBLE, THE BENEFIT OF THE PRACTICE FOLLOWED IN THE EXECUTIVE BRANCH OF THE GOVERNMENT UNDER 5 U.S.C. 118H. HENCE, IT IS READILY APPARENT THAT IF THE EMPLOYEES IN QUESTION BE GRANTED THE SAME BENEFITS AS EXECUTIVE EMPLOYEES STATIONED IN HAWAII WHOSE BASIC COMPENSATION IS FIXED BY STATUTE, THE ADDITIONAL AMOUNT (COST OF LIVING ALLOWANCE) MUST BE REGARDED AS COMPENSATION AND, AS SUCH, WOULD BE SUBJECT TO THE AGGREGATE LIMITATION SET FORTH IN THE JUDICIARY APPROPRIATION ACT OF 1952, AS AMENDED. MOREOVER, IT DOES NOT APPEAR THAT THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, IS AUTHORIZED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES ALLOWANCES IN ADDITION TO THEIR SALARIES. THAT IS TO SAY, THAT WHILE THE SALARY ITSELF MAY BE ADJUSTED UPWARD IN PROPER CASES TO TAKE CARE OF INCREASED COST OF LIVING OUTSIDE THE UNITED STATES, I FIND NOTHING IN THE QUOTED SECTION WHICH WOULD AUTHORIZE THE DIRECTOR TO PAY IN ADDITION TO SALARIES A COST OF LIVING OR OTHER ALLOWANCE.

IN VIEW OF THE FOREGOING, IT MUST BE CONCLUDED THAT THE AGGREGATE TOTAL-- - EXCLUSIVE OF STEP-INCREASES AND COMPENSATION PAID FOR TEMPORARY ASSISTANCE NEEDED BECAUSE OF AN EMERGENCY--- THAT MAY BE PAID TO THE LAW CLERKS AND SECRETARIES OF EACH OF THE RESPECTIVE JUDGES MAY NOT EXCEED THE LIMITATION CONTAINED IN THE JUDICIARY APPROPRIATION ACT OF 1952, AS AMENDED.