B-51032, JULY 18, 1945, 25 COMP. GEN. 69

B-51032: Jul 18, 1945

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FEDERAL EMPLOYEES PAY ACT OF 1945 - APPLICABILITY - JUDGES OF MUNICIPAL COURT FOR DISTRICT OF COLUMBIA JUDGES OF THE MUNICIPAL COURT FOR THE DISTRICT OF COLUMBIA ARE "OFFICERS * * * IN OR UNDER * * * THE JUDICIAL BRANCH OF THE GOVERNMENT WHOSE COMPENSATION IS NOT FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT * * *. AS FOLLOWS: I HAVE THE HONOR TO REQUEST YOUR OPINION UPON THE QUESTIONS HEREINAFTER INDICATED. WHICH HAVE ARISEN IN CONNECTION WITH THE ADMINISTRATION OF THE AFFAIRS OF THE MUNICIPAL COURT FOR THE DISTRICT OF COLUMBIA AS CREATED BY THE ACT OF APRIL 1. PROVIDES THAT TITLE V OF THE ACT "* * * SHALL APPLY TO OFFICERS AND EMPLOYEES IN OR UNDER THE LEGISLATIVE OR THE JUDICIAL BRANCH OF THE GOVERNMENT WHOSE COMPENSATION IS NOT FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923.

B-51032, JULY 18, 1945, 25 COMP. GEN. 69

FEDERAL EMPLOYEES PAY ACT OF 1945 - APPLICABILITY - JUDGES OF MUNICIPAL COURT FOR DISTRICT OF COLUMBIA JUDGES OF THE MUNICIPAL COURT FOR THE DISTRICT OF COLUMBIA ARE "OFFICERS * * * IN OR UNDER * * * THE JUDICIAL BRANCH OF THE GOVERNMENT WHOSE COMPENSATION IS NOT FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT * * *," WITHIN THE MEANING OF SECTION 101 (C) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, SO AS TO BE ENTITLED TO THE INCREASE IN COMPENSATION AND TO THE TEMPORARY PERCENTAGE ADDITION TO COMPENSATION IN LIEU OF OVERTIME PRESCRIBED BY SECTIONS 521 AND 522 OF THE ACT, RESPECTIVELY, RATHER THAN TO THE INCREASE IN BASIC COMPENSATION UNDER SECTION 602 (B) APPLICABLE TO "POSITIONS IN * * * THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT.'

ACTING COMPTROLLER GENERAL YATES TO THE CHIEF JUDGE, MUNICIPAL COURT FOR THE DISTRICT OF COLUMBIA, JULY 18, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 13, 1945, AS FOLLOWS:

I HAVE THE HONOR TO REQUEST YOUR OPINION UPON THE QUESTIONS HEREINAFTER INDICATED, WHICH HAVE ARISEN IN CONNECTION WITH THE ADMINISTRATION OF THE AFFAIRS OF THE MUNICIPAL COURT FOR THE DISTRICT OF COLUMBIA AS CREATED BY THE ACT OF APRIL 1, 1942 ( DISTRICT OF COLUMBIA CODE, 1940 EDITION, SUPPLEMENT II, CHAPTER 7, SUBCHAPTER II, SECTION 11-751, ET. SEQ.).

SECTION 101 (C) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, PUBLIC LAW 106, PROVIDES THAT TITLE V OF THE ACT

"* * * SHALL APPLY TO OFFICERS AND EMPLOYEES IN OR UNDER THE LEGISLATIVE OR THE JUDICIAL BRANCH OF THE GOVERNMENT WHOSE COMPENSATION IS NOT FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED, * * *.'

THE QUESTION PRESENTED IS WHETHER THE JUDGES OF THE MUNICIPAL COURT FOR THE DISTRICT OF COLUMBIA ARE "OFFICERS * * * IN OR UNDER THE * * * JUDICIAL BRANCH OF THE GOVERNMENT" WITHIN THE PURVIEW OF SAID SECTION 101 (C) AND TITLE V OF SAID FEDERAL EMPLOYEES PAY ACT OF 1945, AND ENTITLED TO THE INCREASED COMPENSATION PROVIDED FOR UNDER SECTIONS 521 AND 522 OF SAID ACT.

THE SALARIES OF THE JUDGES OF THE MUNICIPAL COURT FOR THE DISTRICT OF COLUMBIA ARE "NOT FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED; " THEY ARE FIXED BY SECTION 2 OF THE ACT OF APRIL 1942, CREATING THE CONSOLIDATED COURT.

THE SALARIES OF THE OFFICERS AND EMPLOYEES OF SAID COURT, OTHER THAN THE JUDGES THEREOF, ARE PROVIDED FOR UNDER SECTION 3 (C) OF SAID ACT OF APRIL 1, 1942 CREATING THE COURT, AND AS THEREIN PROVIDED ARE REQUIRED TO BE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND HENCE, ACCORDING TO THE OPINION OF THE COMPTROLLER GENERAL, DATED JULY 5, 1945, NO. B-50756, (25 C.G. 14) SAID EMPLOYEES OF THE COURT, OTHER THAN THE JUDGES THEREOF, COME UNDER TITLES I AND II OF SAID FEDERAL EMPLOYEES PAY ACT OF 1945.

THE QUESTION PRESENTED WOULD SEEM TO BE ANSWERED BY THE DECISION OF THE COMPTROLLER GENERAL OF FEBRUARY 4, 1943, NO. B-31974, WHEREIN THE FOLLOWING LANGUAGE IS USED:

"WHILE THE MUNICIPAL COURTS OF THE DISTRICT OF COLUMBIA ARE NOT A PART OF THE FEDERAL JUDICIARY SYSTEM (15 COMP. DEC. 847), NEVERTHELESS THEY ARE LEGISLATIVE COURTS AND THE EMPLOYEES THEREOF ARE "JUDICIAL" EMPLOYEES. THIS OFFICE HAS RECOGNIZED THAT THE JUDGES OF SUCH COURTS ARE EMPLOYED IN OR UNDER THE "JUDICIAL" BRANCH OF THE UNITED STATES GOVERNMENT. SEE DECISION OF JUNE 29, 1942, 21 COMP. GEN. 1139, 1141, WHEREIN IT WAS STATED.

" "SECTION 3 OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, AS AMENDED BY THE ACTS OF JANUARY 24, 1942, PUBLIC LAW 411, AND MARCH 7, 1942, PUBLIC LAW 490, 56 STAT. 143, 147, QUOTED IN THE FIRST PARAGRAPH OF YOUR LETTER, SPECIFICALLY INCLUDES, AMONG OTHERS, OFFICERS AND EMPLOYEES IN OR UNDER THE "JUDICIAL" BRANCH OF THE UNITED STATES GOVERNMENT. EXCEPT TO THE EXTENT THAT THE PROVISION (PROVISO) TO SAID SECTION OF THE STATUTE MAY EXCLUDE THEM, THE JUDGES OF THE VARIOUS COURTS HERE INVOLVED APPEAR TO FALL WITHIN THE TERM "JUDICIAL" OFFICERS AND, THEREFORE, WOULD COME WITHIN THE PURVIEW OF THE SAID CIVIL SERVICE RETIREMENT ACT. * * * " "

IT WOULD SEEM, IN VIEW OF SAID SECTION 101 (C) AND SECTIONS 521 AND 522 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AND THE ABOVE QUOTED EXCERPT FROM THE OPINION OF THE COMPTROLLER GENERAL OF FEBRUARY 4, 1943, THAT THE JUDGES OF THIS COURT ARE ENTITLED TO THE SALARY INCREASES PROVIDED FOR IN SAID SECTIONS 521 AND 522 OF THIS ACT. ON THE OTHER HAND, IT HAS BEEN SUGGESTED THAT THE JUDGES OF THIS COURT COME WITHIN THE PURVIEW OF SECTION 602 (B) OF THE ACT, WHEREIN IT IS PROVIDED:

"BASIC RATES OF COMPENSATION SPECIFICALLY PRESCRIBED BY STATUTE OF CONGRESS FOR POSITIONS IN THE EXECUTIVE BRANCH OR THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT WHICH ARE NOT INCREASED BY ANY OTHER PROVISION OF THIS ACT ARE HEREBY INCREASED IN THE SAME AMOUNT THAT CORRESPONDING RATES WOULD BE INCREASED UNDER THE PROVISIONS OF SECTION 405 OF THIS ACT; AND EACH SUCH AUGMENTED RATE SHALL BE CONSIDERED TO BE THE REGULAR RATE OF COMPENSATION.'

HOWEVER, IN VIEW OF THE FACT THAT SAID SECTION 602 (B) IS INTENDED TO PROVIDE FOR SALARY INCREASES ONLY WHERE THEY ARE "NOT INCREASED BY ANY OTHER PROVISION" OF THE PAY ACT, IT WOULD SEEM CLEAR THAT SAID SECTION 602 (B) WAS NOT INTENDED TO APPLY TO THE JUDGES OF THIS COURT IF SAID JUDGES ARE EMBRACED WITHIN THE PURVIEW OF TITLE V OF THE ACT BY VIRTUE OF THE PROVISIONS OF SECTION 101 (C) OF THE ACT PERTAINING TO OFFICERS "IN THE JUDICIAL BRANCH OF THE GOVERNMENT WHOSE COMPENSATION IS NOT FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED.'

THE CLERK OF THIS COURT IS WITHHOLDING THE PREPARATION OF THE PAYROLL OF THE JUDGES PENDING THE DISPOSITION OF THE QUESTIONS HEREIN PRESENTED, AND I WOULD APPRECIATE IT IF I COULD RECEIVE YOUR OPINION AT AN EARLY DATE.

AS INDICATED IN THE DECISIONS CITED IN YOUR LETTER THIS OFFICE CONSISTENTLY HAS HELD THAT THE JUDGES AS WELL AS THE PERSONNEL OF THE MUNICIPAL COURT FOR THE DISTRICT OF COLUMBIA ARE TO BE REGARDED AS OFFICERS AND EMPLOYEES IN OR UNDER THE JUDICIAL BRANCH OF THE GOVERNMENT. COMPARE DECISION OF JULY 14, 1945, B-50909, 25 C.G. 58, TO THE REGISTER OF WILLS AND CLERK OF THE PROBATE COURT, DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA. HOWEVER, AS SECTION 102 (A) (2) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296, EXEMPTS FROM THE ENTIRE STATUTE ,1FEDERAL JUDGES," ONLY (SEE PAGE 6110 OF THE CONGRESSIONAL RECORD FOR JUNE 12, 1945), AND AS THE SALARIES OF THE JUDGES OF THE MUNICIPAL COURT FOR THE DISTRICT OF COLUMBIA ARE NOT SUBJECT TO THE CLASSIFICATION ACT OF 1923, I AM IN AGREEMENT WITH THE VIEW STATED IN YOUR LETTER TO THE EFFECT THAT THE SALARIES OF THE JUDGES OF SAID COURT ARE SUBJECT TO THE FORMULAS PRESCRIBED BY SECTIONS 521 AND 522 OF THE STATUTE, 59 STAT. 301, 302, WHICH INCREASED THE SALARY RATES OF OFFICERS AND EMPLOYEES IN OR UNDER THE JUDICIAL BRANCH, RATHER THAN TO THE PROVISIONS OF SECTION 602 (B) OF THE STATUTE, 59 STAT. 302, WHICH ARE LIMITED TO "POSITIONS IN THE EXECUTIVE BRANCH OR THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT.'

THE ACT OF APRIL 1, 1942, 56 STAT. 190, 191, ESTABLISHING THE MUNICIPAL COURT FOR THE DISTRICT OF COLUMBIA AS IT IS NOW CONSTITUTED, PROVIDES THAT "THE SALARY OF THE CHIEF JUDGE SHALL BE $8,500 PER ANNUM AND THAT OF EACH ASSOCIATE JUDGE SHALL BE $8,500 PER ANNUM.' PURSUANT TO THE FORMULA PRESCRIBED BY SECTION 521 OF THE STATUTE, THE NEW BASIC SALARY RATE FOR THE CHIEF JUDGE IS $9,275 PER ANNUM TO WHICH THERE IS TO BE ADDED $290 (10 PERCENT OF $2,900 PER ANNUM), TEMPORARY ADDITIONAL COMPENSATION PURSUANT TO SECTION 522 OF THE STATUTE, MAKING THE AGGREGATE COMPENSATION $9,565 PER ANNUM UNTIL JUNE 30, 1947. THE NEW BASIC SALARY RATE OF THE ASSOCIATE JUDGES OF THE COURT, PURSUANT TO SECTION 521 OF THE STATUTE, IS $8,750 PER ANNUM, AND THEY ALSO, ARE ENTITLED TO $290 PER ANNUM (10 PERCENT OF $2,900 PER ANNUM/--- TEMPORARY ADDITIONAL COMPENSATION UNDER SECTION 522 OF THE STATUTE--- MAKING THEIR AGGREGATE COMPENSATION $9,040 PER ANNUM UNTIL JUNE 30, 1947.

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