B-238040, Apr 9, 1991, 70 Comp.Gen. 404

B-238040, Apr 9, 1991, 70 Comp.Gen. 404

CIVILIAN PERSONNEL - Compensation - Compensation restrictions - Rates - Amount determination Under 17 U.S.C. Sec. 802(a) (1988), the Copyright Royalty Tribunal Commissioners are entitled to be compensated at the highest rate now or hereafter prescribed for grade GS-18. Since 5 U.S.C. Sec. 5308 (1988) limits the highest rate prescribed (payable) for grade GS-18 to the rate of basic pay for level V of the Executive Schedule, the Commissioners may not be paid at a rate in excess of that rate, notwithstanding the fact that chapter 53 of title 5, United States Code, which includes 5 U.S.C. Sec. 5308 (1988), may not otherwise be applicable to Copyright Royalty Tribunal positions. See U.S. Sentencing Commission, 66 Comp.Gen. 650 (1987), and Farm Credit Administration, 56 Comp.Gen. 375 (1977).

Copyright Royalty Tribunal - Compensation of Commissioners:

Mr. J. C. Argetsinger, Chairman of the Copyright Royalty Tribunal, has requested our opinion regarding the maximum compensation to which he and the other Commissioners are entitled for fiscal year 1990. For the following reasons, we hold that the Commissioners of the Copyright Royalty Tribunal were entitled to be compensated at the annual rate of $78,200 for the relevant period of fiscal year 1990.

The Copyright Royalty Tribunal is an agency funded from private sources. Its members are appointed by the President. The pertinent statute which governs the compensation of Copyright Royalty Tribunal Commissioners is 17 U.S.C. Sec. 802(a) (1988) which, in relevant part, provides:

"... Commissioners shall be compensated at the highest rate now or hereafter prescribed for grade 18 of the General Schedule pay rates (5 U.S.C.Sec. 5332) official footnote omitted."

The pay rate for grade GS-18 is limited by 5 U.S.C. Sec. 5308 (1988) which provides:

"Pay may not be paid, by reason of any provision of this subchapter, at a rate in excess of the rate of basic pay for level V of the Executive Schedule."

The Chairman contends that, since the Commissioners are exempt from the coverage of chapter 53 of title 5, United States Code, they are exempt from the pay limitation contained therein at 5 U.S.C. Sec. 5308 (1988). Therefore, they should have been compensated at the higher rate indicated for grade GS-18 (then $93,484) /1/ rather than the rate of basic pay payable for grade GS-18, then $78,200, which they were paid. /2/

For the purposes of this decision, we will assume that the Chairman is correct in his contention that the Commissioners are exempt from the coverage of chapter 53 of title 5, United States Code, which includes 5 U.S.C. Sec. 5308 (1988). On the basis of our previous decisions, U.S. Sentencing Commission, 66 Comp.Gen. 650 (1987), and Farm Credit Administration, 56 Comp.Gen. 375 (1977), however, we do not agree with the Chairman's conclusion that the Copyright Royalty Tribunal Commissioners may be paid at a rate in excess of the rate payable for grade GS-18 employees.

In U.S. Sentencing Commission, 66 Comp.Gen. 650 (1987), we considered the effect of the statute establishing the Sentencing Commission, which has language almost identical to the language authorizing compensation for the Copyright Royalty Tribunal Commissioners. /3/ In that case, we noted that the amounts listed in the General Schedule in excess of level V of the Executive Schedule were denoted by an asterisk. The note accompanying the asterisk stated that the rate of basic pay payable to employees at these rates is limited to the rate payable for level V of the Executive Schedule. /4/ Thus, we viewed the "prescribed" rate of pay for grade GS- 18 as equal to the rate of level V of the Executive Schedule, then $72,500. We concluded that:

"... since 5 U.S.C. Sec. 5308 limits the highest rate prescribed for grade GS-18 to the rate for level V of the Executive Schedule, and since 28 U.S.C. Sec. 995(a)(2) provides that the salary rate of the Staff Director of the Sentencing Commission shall not exceed such rate, the Staff Director may not be paid at a rate in excess of $72,500, notwithstanding the fact that chapter 53 of title 5 may not otherwise be applicable to that position." 66 Comp.Gen. 650, 653 (1987).

Similarly, we considered the effect of the language in 5 U.S.C. Sec. 5308 (1988) on the compensation of employees exempted from subchapters I and III of chapter 53 of title 5 in Farm Credit Administration, 56 Comp.Gen. 375 (1977). The Farm Credit Act of 1971, /5/provided in section 5.13, 12 U.S.C. Sec. 2247 (Supp. V 1975), that the salary of the Deputy Governors "shall not exceed the maximum scheduled rate of the general schedule of the Classification Act of 1949, as amended." The FCA had argued that, since the Deputy Governors are excluded from the coverage of chapter 51 and subchapters I and III of chapter 53 of title 5, United States Code, the Deputy Governors were likewise exempt from the pay limitation contained in 5 U.S.C. Sec. 5308, which is included in chapter 53 of title 5, United States Code.

In discussing the applicability of 5 U.S.C. Sec. 5308 to the Deputy Governors, we noted that it imposes a limitation or ceiling on the rates themselves. The amounts listed in excess of Executive Level V were thus viewed as nothing more than projections of what the pay rates would be were it not for the limitations. Farm Credit Administration, 56 Comp.Gen. 375, 377, supra.

In the present case, the amounts listed in the General Schedule for the majority of fiscal year 1990 in excess of Executive Level V are denoted by an asterisk in Schedule 1-B attached to Executive Order 12698, December 28, 1989, which states that " t he rate of basic pay payable to employees at these rates is limited to the rate payable for level V of the Executive Schedule. ..." /6/ Thus, the "prescribed" rate of pay for grade GS-18 was equal to Level V of the Executive Schedule, i.e. $78,200. /7/

We do not view the present case as distinguishable from our two prior decisions cited above. Since 5 U.S.C. Sec. 5308 (1988) limits the highest rate "prescribed" for grade GS-18 to the rate for level V of the Executive Schedule, and since 17 U.S.C. Sec. 802(a) (1988) provides that the Copyright Royalty Tribunal Commissioners shall be compensated at the highest rate now or hereafter prescribed for grade GS-18, the Commissioners may not be paid at a rate in excess of the prescribed (payable) rate ($78,200 for the relevant period of fiscal year 1990 involved), notwithstanding the fact that chapter 53 of title 5, United States Code, which includes 5 U.S.C. Sec. 5308 (1988), may not otherwise be applicable to Copyright Royalty Tribunal positions.

Accordingly, the Commissioners of the Copyright Royalty Tribunal were properly compensated for their services at the highest rate payable for grade GS-18, namely $78,200.

/1/ Also referred to as the "Asterisk" rate since it is denoted by an asterisk in the pay table.

/2/ For the sake of simplicity, we have used the pay rates involved for the majority of fiscal year 1990. See Schedules 1-B and 5-B, attached to Executive Order 12698, 54 Fed. Reg. 53473, 53476, 53482 (Dec. 28, 1989). We note that the problem of "indicated rates" as opposed to "payable rates" has been eliminated for the majority of fiscal year 1991 in regard to grade GS-18. See Schedule 1, attached to Executive Order 12736, 55 Fed. Reg. 51385, 51387 (Dec. 12, 1990).

/3/ In U.S. Sentencing Commission, supra, the statute involved used the phrase "at a rate not to exceed the highest rate now or hereafter prescribed for grade 18. ..." In the present case the statute reads "at the highest rate now or hereafter prescribed for grade 18. ..."

/4/ See Executive Order 12578, Dec. 31, 1986.

/5/ Public Law 92-181, December 10, 1971; 12 U.S.C. Sec. 2001 et seq. (Supp. V 1975).

/6/ Schedule 1-B, 54 Fed. Reg. 53476 (Dec. 28, 1989).

/7/ Schedule 5-B (Executive Schedule), 54 Fed. Reg. 53482 (Dec. 28, 1989).