B-52664, SEPTEMBER 28, 1945, 25 COMP. GEN. 310

B-52664, SEPTEMBER 28, 1945, 25 COMP. GEN. 310

FEDERAL EMPLOYEES PAY ACT OF 1945 - APPLICABILITY TO COURT REPORTERS OF FEDERAL DISTRICT COURTS COURT REPORTERS OF THE FEDERAL DISTRICT COURTS APPOINTED PURSUANT TO THE ACT OF JANUARY 20, 1944, WHOSE ANNUAL SALARIES ARE FIXED AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING LOCAL RATES BY THE JUDICIAL CONFERENCE OF SENIOR CIRCUIT JUDGES, ARE TO BE REGARDED AS HAVING THEIR COMPENSATION FIXED AND ADJUSTED BY ADMINISTRATIVE AUTHORITY SIMILAR TO A WAGE BOARD WITHIN THE MEANING OF THE EXCLUSION PROVISIONS OF SECTION 102 (C) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 AND, THEREFORE, NOT ENTITLED TO THE INCREASE IN BASIC COMPENSATION AND THE TEMPORARY PERCENTAGE ADDITION TO COMPENSATION PRESCRIBED BY SECTIONS 521 AND 522 OF THE ACT, RESPECTIVELY.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, SEPTEMBER 28, 1945:

I HAVE YOUR LETTER OF SEPTEMBER 26, 1945, AS FOLLOWS:

CONFIRMING TELEPHONE CONVERSATIONS WHICH I HAVE JUST HAD WITH MR. YATES AND MR. MCFARLAND, I WRITE IN BEHALF OF THE JUDICIAL CONFERENCE OF SENIOR CIRCUIT JUDGES, WHICH IS NOW HOLDING ITS REGULAR ANNUAL MEETING FOR 1945, TO REQUEST AN EXPRESSION OF YOUR OPINION ON THE QUESTION WHETHER OR NOT PART II OF TITLE V OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 ( PUBLIC LAW 106 OF THE 79TH CONGRESS, APPROVED JUNE 30, 1945) APPLIES TO THE SALARIES (EXCLUSIVE OF FEES FOR TRANSCRIPTS) OF THE OFFICIAL REPORTERS OF THE UNITED STATES DISTRICT COURTS APPOINTED BY THE SEVERAL DISTRICT COURTS UNDER THE PROVISIONS OF PUBLIC LAW 222 OF THE 78TH CONGRESS, APPROVED JANUARY 20, 1944, (SECTION 5 (A) OF THE JUDICIAL CODE, AS AMENDED, 28 U.S.C. SUPP. IV, SECTIONS 9 (A) 9 (E) INCLUSIVE, AND PARTICULARLY SECTION (C/).

PARAGRAPH (A) OF THE COURT REPORTING ACT PROVIDES THAT,"EACH DISTRICT COURT OF THE UNITED STATES, INCLUDING THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA AND THE DISTRICT COURTS IN THE TERRITORIES AND INSULAR POSSESSIONS, SHALL APPOINT ONE OR MORE COURT REPORTERS," THE NUMBER FOR EACH COURT TO BE DETERMINED BY THE JUDICIAL CONFERENCE OF SENIOR CIRCUIT JUDGES. PARAGRAPH (C) PROVIDES THAT,"EACH REPORTER SO APPOINTED SHALL RECEIVE AN ANNUAL SALARY, TO BE FIXED FROM TIME TO TIME BY THE JUDICIAL CONFERENCE AND TO BE PAID IN THE SAME MANNER AND AT THE SAME TIME THAT THE SALARY OF THE CLERK OF THE COURT IS PAID * * * SUCH SALARY SHALL BE NOT LESS THAN $3,000 NOR MORE THAN $6,000 PER ANNUM.' THE ACT PROVIDES THAT THE REPORTER SHALL BE REIMBURSED FOR HIS TRAVELING AND SUBSISTENCE EXPENSES INCURRED IN THE PERFORMANCE OF HIS OFFICIAL DUTIES AWAY FROM THE PLACE OF HIS REGULAR EMPLOYMENT,"WITHIN THE LIMITATIONS PRESCRIBED BY LAW FOR CLERKS OF DISTRICT COURTS," BUT THAT HE SHALL PROVIDE HIS SUPPLIES AT HIS OWN EXPENSE. THE ACT THEN AUTHORIZES THE REPORTERS TO CHARGE AND COLLECT FROM PARTIES FOR TRANSCRIPTS FURNISHED SUCH FEES,"AS MAY BE PRESCRIBED FROM TIME TO TIME BY THE COURT SUBJECT TO THE APPROVAL OF THE JUDICIAL CONFERENCE," WITH A PROVISION FOR PAYMENT OF THE FEES FOR TRANSCRIPTS FURNISHED TO PERSONS ALLOWED TO SUE OR DEFEND AS POOR PERSONS BY THE GOVERNMENT.

THE JUDICIAL CONFERENCE OF SENIOR CIRCUIT JUDGES AT A SPECIAL SESSION IN APRIL 1944 AUTHORIZED THE APPOINTMENT OF SPECIFIED NUMBERS OF REPORTERS FOR THE DISTRICT COURTS FOR THE SEVERAL JUDICIAL DISTRICTS AND FIXED THEIR ANNUAL SALARIES AT SPECIFIC AMOUNTS, IN EACH CASE RANGING FROM $3,000 TO $5,000 AS SHOWN ON PAGES 4-6 OF THE INCLOSED REPORT OF THE APRIL 1944 SESSION OF THE JUDICIAL CONFERENCE. THE CONFERENCE AT ITS REGULAR ANNUAL MEETING IN 1944 ALTERED SOME OF THE DETERMINATIONS OF SALARIES PREVIOUSLY MADE (PP. 12-13 OF THE INCLOSED REPORT OF THE SEPTEMBER 1944 SESSION) AND APPROVED TRANSCRIPT FEES AS SHOWN IN THE APPENDIX OF THE SAME REPORT.

THE SERVICES OF THE OFFICIAL REPORTERS REFERRED TO HAVE BEGUN ON VARIOUS DATES ON AND AFTER JULY 1, 1945, NONE EARLIER, BECAUSE THERE WAS NO APPROPRIATION FOR THEIR SALARIES PRIOR TO THE APPROPRIATION OF $700,000 "FOR SALARIES OF COURT REPORTERS FOR THE DISTRICT COURTS OF THE UNITED STATES, AS AUTHORIZED BY THE ACT OF JANUARY 20, 1944 ( PUBLIC LAW 222) $700,000," CONTAINED IN THE JUDICIARY APPROPRIATION ACT FOR 1946.

THE SPECIFIC INQUIRY IS WHETHER THE FEDERAL EMPLOYEES PAY ACT OF 1945 APPLIES TO THE SALARIES OF THE OFFICIAL COURT REPORTERS FOR THE DISTRICT COURTS AS FIXED BY THE JUDICIAL CONFERENCE IN 1944, AND WHETHER THERE SHOULD BE ADDED TO THE SALARIES AS SO FIXED, BEGINNING JULY 1, 1945, WHEN THE ACT TOOK EFFECT, THE ADDITIONS TO THE COMPENSATION OF EMPLOYEES GENERALLY OF THE JUDICIAL BRANCH PROVIDED FOR BY TITLE V, PART II, SECTIONS 521 AND 522 OF THE ACT. IT IS TAKEN FOR GRANTED THAT THE ACT DOES NOT APPLY TO THE TRANSCRIPT FEES OF THE REPORTERS.

SECTIONS 521 AND 522, TITLE V, OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, APPROVED JUNE 30, 1945, 59 STAT. 301, 302, PERTAINING TO EMPLOYEES OF THE JUDICIAL BRANCH PROVIDE, AS FOLLOWS:

SEC. 521. EACH OFFICER AND EMPLOYEE IN OR UNDER THE JUDICIAL BRANCH TO WHOM THIS TITLE APPLIES SHALL BE PAID ADDITIONAL BASIC COMPENSATION COMPUTED AS FOLLOWS: 20 PERCENTUM OF THAT PART OF HIS RATE OF BASIC COMPENSATION WHICH IS NOT IN EXCESS OF $1,200 PER ANNUM, PLUS 10 PERCENT OF THAT PART OF SUCH RATE WHICH IS IN EXCESS OF $1,200 PER ANNUM BUT NOT EXCESS OF $4,600 PER ANNUM, PLUS 5 PERCENTUM OF THAT PART OF SUCH RATE WHICH IS IN EXCESS OF $4,600 PER ANNUM. THE LIMITATIONS OF $6,500 AND $7,500 WITH RESPECT TO THE AGGREGATE SALARIES PAYABLE TO SECRETARIES AND LAW CLERKS OF CIRCUIT AND DISTRICT JUDGES, CONTAINED IN THE EIGHTH PARAGRAPH UNDER THE HEAD " MISCELLANEOUS ITEMS OF EXPENSE" IN THE JUDICIARY APPROPRIATION ACT, 1946 ( PUBLIC LAW 61, SEVENTY-NINTH CONGRESS), SHALL BE INCREASED BY THE AMOUNTS NECESSARY TO PAY THE ADDITIONAL BASIC COMPENSATION PROVIDED BY THIS SECTION; AND THE CHANGES IN THE RATES OF BASIC COMPENSATION IN THE CLASSIFICATION ACT OF 1923, AS AMENDED, MADE BY SECTION 405 OF THIS ACT SHALL NOT BE TAKEN INTO ACCOUNT IN FIXING SALARIES UNDER SUCH EIGHTH PARAGRAPH.

SEC. 522. DURING THE PERIOD BEGINNING ON JULY 1, 1945, AND ENDING ON JUNE 30, 1947, EACH OFFICER AND EMPLOYEE IN OR UNDER THE JUDICIAL BRANCH ENTITLED TO THE BENEFITS OF SECTION 521 OF THIS ACT SHALL BE PAID ADDITIONAL COMPENSATION AT THE RATE OF 10 PERCENTUM OF (A) THE RATE OF HIS BASIC COMPENSATION, OR (B) THE RATE OF $2,900 PER ANNUM, WHICHEVER IS THE SMALLER. AS USED IN THIS SECTION TERM "BASIC COMPENSATION" INCLUDES THE ADDITIONAL BASIC COMPENSATION PROVIDED FOR BY SECTION 521 OF THIS ACT.

WITH RESPECT TO THE APPLICATION OF THE ABOVE TITLE V, SECTION 101C OF THE ACT, 59 STAT. 296, PROVIDES:

SUBJECT TO THE EXEMPTIONS SPECIFIED IN SECTION 102 OF THIS ACT, TITLE V OF THIS 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, AND TO THE OFFICIAL REPORTERS OF PROCEEDINGS AND DEBATES OF THE SENATE AND THEIR EMPLOYEES.

SECTIONS 102A AND B, 59 STAT. 296, LIST, AS EXEMPTED FROM THE PROVISIONS OF THE STATUTE, VARIOUS OFFICIALS AND EMPLOYEES NOT HERE MATERIAL, BUT SECTION 102C, 59 STAT. 296, PROVIDES:

THIS ACT, EXCEPT SECTIONS 203 AND 607, SHALL NOT APPLY TO EMPLOYEES WHOSE BASIC COMPENSATION IS FIXED AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE.

COURT REPORTERS APPOINTED PURSUANT TO THE ACT OF JANUARY 20, 1944, 58 STAT. 5, HAVE BEEN HELD TO BE "PERMANENT EMPLOYEES" BUT NOT SUBJECT TO THE ANNUAL LEAVE LAWS AS THEIR DUTIES DO NOT REQUIRE THEM TO BE "CONTINUOUSLY EMPLOYED DURING REGULAR TOUR OF DUTY.' B-51244, AUGUST 14, 1945, 25 COMP. GEN. 185.

IN THE REPORT OF THE SPECIAL SESSION OF THE JUDICIAL CONFERENCE, 1944, IT WAS STATED:

IT WAS RESOLVED THAT COURT REPORTERS NOT SERVING THE COURT IN ANY OTHER CAPACITY BE CLASSIFIED INTO FIVE CLASSES, AT ANNUAL SALARIES OF $3,000.00 $3,600.00, $4,000.00, $4,500.00, AND $5,000.00 AND THAT IN THE DETERMINATION OF THE APPROPRIATE CLASSIFICATION FOR EACH REPORTER CONSIDERATION BE GIVEN TO (1) THE RECOMMENDATIONS OF THE DISTRICT JUDGES FOR THE DISTRICT IN WHICH THE APPOINTMENT IS TO BE MADE, WHICH HAD BEEN SUBMITTED PRIOR TO THE CONVENING OF THE CONFERENCE THROUGH THE RESPECTIVE SENIOR CIRCUIT JUDGES; (2) THE NUMBER OF SESSIONS OF THE DISTRICT COURT HELD DURING THE YEAR; (3) THE NUMBER OF DAYS SPENT DURING THE YEAR IN TRIAL OR ARGUMENT OF CASES IN THE DISTRICT COURT; (4) THE POPULATION OF THE DISTRICT AND THE COST OF LIVING IN THE LOCALITY; (5) THE AMOUNT OF TIME DURING WHICH THE REPORTER WOULD BE REQUIRED TO BE IN ATTENDANCE UPON THE COURT ENGAGED IN THE PERFORMANCE OF HIS DUTIES, AND THE OPPORTUNITIES AVAILABLE TO HIM TO EARN ADDITIONAL COMPENSATION FOR WORK UNRELATED TO HIS POSITION AS FEDERAL COURT REPORTER; AND (6) RELEVANT SPECIAL CIRCUMSTANCES, INCLUDING THE COST OF SIMILAR SERVICES IN THE LOCALITY.

THE SALARIES SO FIXED AT THE SPECIAL SESSION WERE CHANGED AT THE REGULAR SEPTEMBER SESSION OF THE JUDICIAL CONFERENCE, AND THE REPORT OF THAT CONFERENCE STATED:

* * * IN REACHING ITS CONCLUSIONS, THE CONFERENCE ALSO CONSIDERED THE RATES ESTABLISHED FOR OFFICIAL REPORTERS IN THE STATE COURTS IN THE VICINITY OF THE RESPECTIVE FEDERAL COURTS, AND THE RATES FOR REPORTING SERVICES NOW CHARGED IN THE FEDERAL COURTS. IT TOOK INTO ACCOUNT THE FACT THAT THE SALARIES AUTHORIZED AT THE APRIL 1944 SESSION OF THE CONFERENCE WILL EXCEED THE PER DIEM FEES PREVIOUSLY RECEIVED BY COURT REPORTERS IN THE FEDERAL COURTS. * * *

IT THUS APPEARS THAT THE ACTION OF THE JUDICIAL CONFERENCE IN FIXING THE SALARIES TO BE PAID COURT REPORTERS WAS BASED LARGELY UPON THE COST OF SIMILAR SERVICES IN THE LOCALITY, THAT IS, IN ACCORDANCE WITH "PREVAILING WAGES" AND THAT THE ACTION AND AUTHORITY OF THE CONFERENCE IN ADJUSTING THE COMPENSATION OF COURT REPORTERS FROM TIME TO TIME CONSTITUTE "SIMILAR ADMINISTRATIVE AUTHORITY" TO A WAGE BOARD WITHIN THE PURVIEW OF SECTION 102C OF THE FEDERAL EMPLOYEES PAY ACT, SUPRA. CF. 22 COMP. GEN. 641, 651, 804.

THEREFORE, IT IS CONCLUDED THAT SECTIONS 521 AND 522 OF THE FEDERAL EMPLOYEES PAY ACT HAVE NO APPLICATION TO COURT REPORTERS APPOINTED PURSUANT TO THE ACT OF JANUARY 20, 1944. SEE B-6061 TO YOU AUGUST 6, 1945. ACCORDINGLY, ANY CHANGES IN THEIR BASIC SALARIES OR TRANSCRIPTION FEES MUST BE BY ACTION OF THE JUDICIAL CONFERENCE AND CANNOT BE MADE EFFECTIVE RETROACTIVELY.