B-175074, MAR 3, 1972

B-175074: Mar 3, 1972

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CIVILIAN EMPLOYEES - ECONOMIC STABILIZATION ACT AMENDMENTS OF 1971 - RETROACTIVE COMPENSATION CONCERNING WHETHER PART-TIME MEMBERS OF THE PAY BOARD AND PRICE COMMISSION ARE ENTITLED TO RECEIVE RETROACTIVE COMPENSATION FOR WORK ACTUALLY PERFORMED FROM THE DATE OF THEIR APPOINTMENTS AND PRIOR TO ENACTMENT OF THE ECONOMIC STABILIZATION ACT AMENDMENTS OF 1971. WHILE THE LEGISLATIVE HISTORY OF THE ACT IS SILENT AS TO THE INTENDED EFFECT OF THE PHRASE "FROM THE DATE OF HIS APPOINTMENT. " IT IS A WELL SETTLED RULE OF STATUTORY INTERPRETATION THAT THE LAW FAVORS THE MORE JUST AND REASONABLE INTERPRETATION FROM AMONG SEVERAL POSSIBLE ALTERNATIVES. IT IS THE OPINION OF THE COMP. RETROACTIVE COMPENSATION IS AUTHORIZED.

B-175074, MAR 3, 1972

CIVILIAN EMPLOYEES - ECONOMIC STABILIZATION ACT AMENDMENTS OF 1971 - RETROACTIVE COMPENSATION CONCERNING WHETHER PART-TIME MEMBERS OF THE PAY BOARD AND PRICE COMMISSION ARE ENTITLED TO RECEIVE RETROACTIVE COMPENSATION FOR WORK ACTUALLY PERFORMED FROM THE DATE OF THEIR APPOINTMENTS AND PRIOR TO ENACTMENT OF THE ECONOMIC STABILIZATION ACT AMENDMENTS OF 1971, PUB. L. 92 -210. WHILE THE LEGISLATIVE HISTORY OF THE ACT IS SILENT AS TO THE INTENDED EFFECT OF THE PHRASE "FROM THE DATE OF HIS APPOINTMENT," IT IS A WELL SETTLED RULE OF STATUTORY INTERPRETATION THAT THE LAW FAVORS THE MORE JUST AND REASONABLE INTERPRETATION FROM AMONG SEVERAL POSSIBLE ALTERNATIVES. CROWDER V GORDON TRANSPORTS, INC., 419 F.2D 480 (CA 8TH, 1969). IN THE INSTANT CASE, IT IS THE OPINION OF THE COMP. GEN. THAT THE LANGUAGE OF THE STATUTE MAY REASONABLY BE REGARDED AS EMBRACING PART-TIME MEMBERS APPOINTED PRIOR TO THE ENACTMENT OF THE 1971 AMENDMENTS. ACCORDINGLY, RETROACTIVE COMPENSATION IS AUTHORIZED.

TO MR. DONALD RUMSFELD:

BY LETTER DATED JANUARY 25, 1972, MR. JOSEPH E. MULLANEY, THE GENERAL COUNSEL OF THE COST OF LIVING COUNCIL, HAS REQUESTED OUR DETERMINATION AS TO WHETHER THE PART-TIME MEMBERS OF THE PAY BOARD AND PRICE COMMISSION ARE ENTITLED TO RECEIVE RETROACTIVE COMPENSATION FOR WORK ACTUALLY PERFORMED FROM THE DATE OF THEIR APPOINTMENTS AND PRIOR TO ENACTMENT OF THE ECONOMIC STABILIZATION ACT AMENDMENTS OF 1971, APPROVED DECEMBER 22, 1971, PUBLIC LAW 92-210, 85 STAT. 743.

IT IS NOTED THAT THE PAY BOARD AND PRICE COMMISSION WERE ESTABLISHED AND THE PART-TIME MEMBERS APPOINTED THERETO SHORTLY AFTER EXECUTIVE ORDER NO. 11627 WAS SIGNED BY THE PRESIDENT ON OCTOBER 15, 1971. THAT ORDER WAS ISSUED UNDER AUTHORITY GRANTED THE PRESIDENT BY THE ECONOMIC STABILIZATION ACT OF 1970, AS AMENDED, PUBLIC LAW 91-379, 84 STAT. 799. THE 1971 AMENDMENTS TO THE ACT PROVIDE FOR COMPENSATING THE PART TIME MEMBERS OF THE PAY BOARD AND PRICE COMMISSION AT SECTION 212(C) AS FOLLOWS:

"(C) ANY MEMBER OF A BOARD, COMMISSION, OR SIMILAR ENTITY ESTABLISHED BY THE PRESIDENT PURSUANT TO AUTHORITY CONFERRED BY THIS TITLE WHO SERVES ON LESS THAN A FULL-TIME BASIS SHALL RECEIVE COMPENSATION FROM THE DATE OF HIS APPOINTMENT AT A RATE EQUAL TO THE PER DIEM EQUIVALENT OF THE RATE PRESCRIBED FOR LEVEL IV OF THE EXECUTIVE SCHEDULE (5 U.S.C. 5315) WHEN ACTUALLY ENGAGED IN THE PERFORMANCE OF HIS DUTIES AS SUCH MEMBER."

THE QUESTION PRESENTED IS WHETHER UNDER THAT SECTION THE MEMBERS OF THE PAY BOARD AND PRICE COMMISSION ARE ENTITLED TO RETROACTIVE COMPENSATION FOR WORK PERFORMED PRIOR TO ENACTMENT OF THE AMENDMENTS.

AS MR. MULLANEY POINTS OUT, IT IS A GENERAL RULE OF STATUTORY CONSTRUCTION THAT THERE IS A PRESUMPTION THAT ALL LAWS ARE TO OPERATE PROSPECTIVELY UNLESS THE LEGISLATURE HAS CLEARLY INDICATED AN INTENTION THAT THEY BE APPLIED RETROACTIVELY. HOWEVER, AS ALSO NOTED, CONGRESS INCLUDED THE WORDS "FROM THE DATE OF HIS APPOINTMENT" IN SECTION 212(C), WHICH WOULD SEEM TO INDICATE AN INTENTION THAT THE MEMBERS BE COMPENSATED RETROACTIVELY SINCE AT THE TIME THE AMENDMENTS WERE ENACTED THE PART-TIME MEMBERS OF THE PAY BOARD AND PRICE COMMISSION HAD ALREADY BEEN APPOINTED.

ALTHOUGH THE LEGISLATIVE HISTORY TO PUBLIC LAW 92-210 IS SILENT AS TO THE INTENDED EFFECT OF THE PHRASE "FROM THE DATE OF HIS APPOINTMENT," THE DISCUSSION OF SECTION 204, WHICH PROVIDES THE BASIC AUTHORITY FOR THE PRESIDENT TO DELEGATE FUNCTIONS UNDER THE ACT, RECOGNIZES THAT THE PRESIDENT HAD ALREADY CREATED CERTAIN BOARDS AND COMMISSIONS AND THAT THE MEMBERS OF THE PAY BOARD AND PRICE COMMISSION, WHO WERE EXPECTED TO WORK ONLY PART TIME, HAD BEEN APPOINTED AND WERE ALREADY AT WORK. S. REPT. NO. 92-507, 92D CONG., 1ST SESS. 6. IN THAT SAME DISCUSSION, COMPENSATION FOR THE PART-TIME MEMBERS IS MENTIONED AS BEING PROVIDED FOR "DURING SUCH TIME AS THEY ARE ENGAGED IN GOVERNMENT BUSINESS."

IT IS A WELL SETTLED RULE OF STATUTORY INTERPRETATION THAT THE LAW FAVORS CONSTRUCTION OF A STATUTE WHICH AVOIDS UNJUST OR UNREASONABLE RESULTS, AND THAT UNREASONABLENESS OF THE RESULT PRODUCED BY ONE AMONG ALTERNATIVE POSSIBLE INTERPRETATIONS OF A STATUTE IS REASON FOR REJECTING THAT INTERPRETATION IN FAVOR OF ANOTHER WHICH WOULD PRODUCE A REASONABLE RESULT. CROWDER V GORDON TRANSPORTS, INC., 419 F.2D 480 (CA 8TH, 1969); JAMES S. BAKER (IMPORTS) CO. V UNITED STATES, 270 F. SUPP. 179 (CUST. CT. 2D DIV., 1967); IN RE JACKSON, 268 F. SUPP. 434 (ED MO., 1967).

ACCORDINGLY, OUR VIEW IS THAT THE LANGUAGE OF THE STATUTE "SHALL RECEIVE COMPENSATION FROM THE DATE OF HIS APPOINTMENT" MAY BE REGARDED AS REASONABLY INTENDED TO EMBRACE THOSE MEMBERS OF THE PAY BOARD AND PRICE COMMISSION APPOINTED PRIOR TO ENACTMENT OF THE 1971 AMENDMENTS AS WELL AS THOSE APPOINTED THEREAFTER. IT FOLLOWS THAT RETROACTIVE COMPENSATION FOR WORK ACTUALLY PERFORMED FROM THE DATES OF THEIR RESPECTIVE APPOINTMENTS IS AUTHORIZED.

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