B-200923, DECEMBER 28, 1983, 63 COMP.GEN. 141

B-200923, DECEMBER 28, 1983, 63 COMP.GEN. 141

COURTS - JUDGES - COMPENSATION - INCREASES - COMPARABILITY PAY ADJUSTMENT - SPECIFIC CONGRESSIONAL AUTHORIZATION REQUIREMENT QUESTION PRESENTED IS WHETHER FEDERAL JUDGES ARE ENTITLED TO 3.5 PERCENT COMPARABILITY PAY INCREASE IN JANUARY 1984, BASED ON THE PRESIDENT'S ALTERNATIVE PLAN. SECTION 140 OF PUBLIC LAW 97-92 BARS PAY INCREASES FOR FEDERAL JUDGES EXCEPT AS SPECIFICALLY AUTHORIZED BY CONGRESS. SINCE THERE HAS BEEN NO SPECIFIC CONGRESSIONAL AUTHORIZATION, FEDERAL JUDGES ARE NOT ENTITLED TO A COMPARABILITY INCREASE ON JANUARY 1, 1984, DESPITE SOME LEGISLATIVE HISTORY IMPLYING THAT SOME MEMBERS OF THE SENATE BELIEVED THAT FEDERAL JUDGES WOULD RECEIVE THE INCREASE.

MATTER OF: FEDERAL JUDGES III - ENTITLEMENT TO JANUARY 1984 COMPARABILITY PAY INCREASE, DECEMBER 28, 1983:

ISSUE

THE ISSUE PRESENTED IS WHETHER FEDERAL JUDGES ARE ENTITLED TO A 3.5 PERCENT SALARY INCREASE EFFECTIVE JANUARY 1984. WE HOLD THAT SINCE SECTION 140 OF PUBLIC LAW 97-92 PRECLUDES PAY INCREASES FOR FEDERAL JUDGES UNLESS SPECIFICALLY AUTHORIZED BY ACT OF CONGRESS, FEDERAL JUDGES ARE NOT ENTITLED TO A COMPARABILITY ADJUSTMENT OF 3.5 PERCENT EFFECTIVE IN JANUARY 1984, SINCE THERE HAS BEEN NO SUCH SPECIFIC AUTHORIZATION TO DATE.

BACKGROUND

THIS DECISION IS IN RESPONSE TO A REQUEST FROM THE HONORABLE WILLIAM E. FOLEY, DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS. THE ADMINISTRATIVE OFFICE SEEKS OUR OPINION AS TO WHETHER FEDERAL JUDGES ARE ENTITLED ON JANUARY 1, 1984, TO THE 3.5 PERCENT COMPARABILITY ADJUSTMENT WHICH WILL BE PAID TO OTHER FEDERAL EMPLOYEES INCLUDING MEMBERS OF CONGRESS. PAY ADJUSTMENTS FOR FEDERAL JUDGES

THE SALARIES OF FEDERAL JUDGES ARE SUBJECT TO ADJUSTMENTS BY TWO MECHANISMS: (1) THE FEDERAL SALARY ACT OF 1967, PUBLIC LAW 90-206, DECEMBER 16, 1967, TITLE II, 81 STAT. 613, 624, PROVIDING FOR A QUADRENNIAL REVIEW OF EXECUTIVE, LEGISLATIVE, AND JUDICIAL SALARIES (2 U.S.C. 351-361); AND (2) THE EXECUTIVE SALARY COST-OF-LIVING ADJUSTMENT ACT, PUBLIC LAW 94-82, AUGUST 9, 1975, TITLE II, 89 STAT. 419, 422, PROVIDING THAT SALARIES COVERED BY THE FEDERAL SALARY ACT OF 1967 WILL RECEIVE THE SAME COMPARABILITY ADJUSTMENT ON OCTOBER 1 OF EACH YEAR AS IS MADE TO THE GENERAL SCHEDULE UNDER 5 U.S.C. 5305 (5 U.S.C. 5318 AND 28 U.S.C. 461).

FOR THE YEARS PRIOR TO 1982, UNDER UNITED STATES V. WILL, 449 U.S. 200, 224-225 (1980), FEDERAL JUDGES RECEIVED THESE ANNUAL COMPARABILITY ADJUSTMENTS DESPITE THE ENACTMENT OF "CAPS" ON EXECUTIVE, LEGISLATIVE, AND JUDICIAL SALARIES. THE SUPREME COURT HELD THAT, SINCE THE PAY CAPS WERE ENACTED AFTER OCTOBER 1, THESE CAPS DIMINISHED THE COMPENSATION OF FEDERAL JUDGES WHICH HAD INCREASED AUTOMATICALLY ON OCTOBER 1 BY THE AMOUNT OF COMPARABILITY ADJUSTMENT GRANTED TO THE GENERAL SCHEDULE. SUCH DIMINUTION OF COMPENSATION WAS HELD TO VIOLATE ARTICLE III OF THE CONSTITUTION. THEREFORE, FEDERAL JUDGES, IN CONTRAST TO OTHER HIGH LEVEL OFFICIALS, RECEIVED SALARY INCREASES IN 1976, 1979, 1980, AND 1981. SEE FEDERAL JUDGES I, B-200923, NOVEMBER 23, 1982, 62 COMP.GEN. 54.

SUBSEQUENT TO THE OCTOBER 1981 PAY INCREASE, THE CONGRESS ENACTED PUBLIC LAW 97-92, DECEMBER 15, 1981, 95 STAT. 1183, A CONTINUING APPROPRIATIONS ACT WHICH PROVIDES IN SECTION 140 THAT FEDERAL JUDGES ARE NOT ENTITLED TO ANY SALARY INCREASE, "EXCEPT AS MAY BE SPECIFICALLY AUTHORIZED BY ACT OF CONGRESS." WE HELD IN OUR DECISION IN FEDERAL JUDGES I, CITED ABOVE, THAT SECTION 140 WAS PERMANENT LEGISLATION AND THAT, IN THE ABSENCE OF A SPECIFIC AUTHORIZATION BY CONGRESS, FEDERAL JUDGES WERE NOT ENTITLED TO ANY PAY INCREASE IN OCTOBER 1982. SEE ALSO B-200923, OCTOBER 1, 1982.

SHORTLY AFTER OUR DECISION IN FEDERAL JUDGES I, THE CONGRESS ENACTED PUBLIC LAW 97-377, DECEMBER 21, 1982, 96 STAT. 1830, 1914, WHICH PROVIDED IN SECTION 129(B) (5 U.S.C. 5318 NOTE) FOR PAY INCREASES IN JANUARY 1983, OF UP TO 15 PERCENT FOR "SENIOR EXECUTIVE, JUDICIAL, AND LEGISLATIVE POSITIONS (INCLUDING MEMBERS OF CONGRESS)." WE HELD THAT THE LANGUAGE OF SECTION 129 OF PUBLIC LAW 97-377, COMBINED WITH SPECIFIC LEGISLATIVE INTENT AS DEMONSTRATED IN THE LEGISLATIVE HISTORY, CONSTITUTED THE SPECIFIC AUTHORIZATION FOR A PAY INCREASE FOR FEDERAL JUDGES REQUIRED BY SECTION 140 OF PUBLIC LAW 97-92. FEDERAL JUDGES II, B-200923, MAY 6, 1983, 62 COMP.GEN. 358. JANUARY 1984 PAY INCREASE

UNDER THE AUTHORITY OF 5 U.S.C. 5305, THE PRESIDENT SUBMITTED AN ALTERNATIVE PLAN FOR THE COMPARABILITY PAY ADJUSTMENT OF 3.5 PERCENT TO BE EFFECTIVE IN JANUARY 1984. PRESIDENTIAL MESSAGE NO. 74, 129 CONG.REC. S11982 (DAILY ED. SEPTEMBER 12, 1983). ALTHOUGH THE OMNIBUS RECONCILIATION ACT OF 1983 WOULD HAVE PROVIDED A 4 PERCENT INCREASE EFFECTIVE JANUARY 1984, THIS LEGISLATION WAS NOT ENACTED IN THE FIRST SESSION OF THE 98TH CONGRESS. SEE S. REP. NO. 98-300, 98TH CONG., 1ST SESS. 185-188 (1983). THEREFORE, IN THE ABSENCE OF ANY OTHER CONGRESSIONAL ACTION, THE PRESIDENT'S "ALTERNATIVE PLAN" WILL TAKE EFFECT IN JANUARY 1984. HOWEVER, NEITHER THE PRESIDENT'S "ALTERNATIVE PLAN" NOR ANY LEGISLATION ENACTED IN THIS SESSION OF CONGRESS SPECIFICALLY REFERS TO ANY PAY INCREASES FOR FEDERAL JUDGES. ARGUMENTS OF ADMINISTRATIVE OFFICE

THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS ARGUES THAT THERE IS LEGISLATIVE HISTORY INDICATING THE CONGRESS UNDERSTOOD THAT THE FEDERAL JUDGES WOULD RECEIVE THE 3.5 PERCENT INCREASE IN JANUARY 1984. THE ADMINISTRATIVE OFFICE POINTS TO A DISCUSSION BETWEEN SEVERAL UNITED STATES SENATORS CONCERNING A PROPOSED AMENDMENT BY SENATOR DON NICKELS TO DENY THE PAY INCREASE TO MEMBERS OF CONGRESS. THE GIST OF THE DISCUSSION WAS THAT THE PROPOSED AMENDMENT BY SENATOR NICKELS WOULD DENY THE COMPARABILITY INCREASE ONLY TO MEMBERS OF CONGRESS AND NOT TO FEDERAL JUDGES. SEE 129 CONG.REC. S16851-16852 (DAILY ED. NOVEMBER 18, 1983) (STATEMENTS OF SENS. MITCHELL, NICKELS MCCLURE, AND STEVENS).

THE ADMINISTRATIVE OFFICE FURTHER CONTENDS THAT UNLIKE THE SITUATION PRESENTED IN FEDERAL JUDGES I, VIRTUALLY ALL FEDERAL EMPLOYEES INCLUDING MEMBERS OF CONGRESS AND HIGH-LEVEL EXECUTIVE OFFICIALS WILL RECEIVE A SALARY INCREASE BY VIRTUE OF THE PRESIDENT'S ALTERNATIVE PLAN. THE ADMINISTRATIVE OFFICE STATES THAT SINCE THE ENACTMENT OF SECTION 140 OF PUBLIC LAW 97-92 IN 1981, FEDERAL JUDGES HAVE NEVER BEEN DENIED THE SAME PAY INCREASES RECEIVED BY OTHER HIGH-LEVEL FEDERAL OFFICIALS. THEREFORE, THE ADMINISTRATIVE OFFICE CONCLUDES THAT TO DENY FEDERAL JUDGES THIS INCREASE IS DISCRIMINATORY AND IS NOT CONSISTENT WITH CONGRESSIONAL INTENT.

DISCUSSION

AGAINST THIS BACKGROUND OF FEDERAL JUDGES I, WHERE A PAY RAISE WAS DENIED BECAUSE THERE WAS NO SPECIFIC AUTHORITY FOR IT, AND FEDERAL JUDGES II, WHERE THE SPECIFIC AUTHORITY FOR THE PAY RAISE WAS PRESENT, WE MUST NOW CONSIDER THE CURRENT YEAR. NO LEGISLATION HAS BEEN ENACTED THAT AMENDS OR REPEALS SECTION 140 OF PUBLIC LAW 97-92, WHICH WE CONTINUE TO BELIEVE IS PERMANENT LEGISLATION.

IN THE PRESENT CASE WE ARE AWARE OF NO SPECIFIC STATUTORY LANGUAGE GRANTING FEDERAL JUDGES A PAY INCREASE IN JANUARY 1984. RATHER, THE ADMINISTRATIVE OFFICE ARGUES THAT CONGRESS UNDERSTOOD THAT FEDERAL JUDGES WOULD RECEIVE AN INCREASE IN JANUARY 1984, AS EVIDENCED BY DEBATE OVER A PROPOSAL TO EXCLUDE MEMBERS OF CONGRESS FROM THAT PAY INCREASE.

WE DO NOT BELIEVE THAT SUCH LEGISLATIVE HISTORY, A DISCUSSION ON A PROPOSED AMENDMENT TO A BILL WHICH WAS NOT ENACTED INTO LAW, RISES TO THE LEVEL OF THE SPECIFIC CONGRESSIONAL AUTHORIZATION REQUIRED BY SECTION 140 OF PUBLIC LAW 97-92. WHILE CERTAIN MEMBERS OF CONGRESS MAY HAVE PRESUMED THAT THE FEDERAL JUDGES WOULD RECEIVE THE JANUARY 1984 PAY INCREASE, THIS DOES NOT OVERCOME THE REQUIREMENTS OF SECTION 140 OF PUBLIC LAW 97-92. NOTED IN OUR PRIOR DECISION IN FEDERAL JUDGES I, SECTION 140 IS AN IMPLIED REPEAL OF THAT PORTION OF PUBLIC LAW 94-82 PROVIDING ANNUAL COMPARABILITY ADJUSTMENTS TO FEDERAL JUDGES. THEREFORE, WHERE THE CONGRESS HAS NOT SPECIFICALLY AUTHORIZED A PAY INCREASE FOR FEDERAL JUDGES, FEDERAL JUDGES MAY NOT RECEIVE A COMPARABILITY ADJUSTMENT IN THEIR SALARIES UNDER THE AUTHORITY OF 5 U.S.C. 5305, 5318 AND 28 U.S.C. 461.

ACCORDINGLY, WE CONCLUDE THAT SECTION 140 OF PUBLIC LAW 97-92 BARS IMPLEMENTATION OF ANY PAY INCREASE FOR FEDERAL JUDGES EFFECTIVE JANUARY 1, 1984, IN THE ABSENCE OF A SPECIFIC AUTHORIZATION BY CONGRESS.