B-226290, MAR 6, 1987

B-226290, MAR 6, 1987

CIVILIAN PERSONNEL - COMPENSATION - INCREASE - APPROVAL - PROCEDURES EFFECTIVE DATES DIGEST: 1. UNDER 2 U.S.C. SEC. 359 (SUPP. III 1985), WHEN THE PRESIDENT SUBMITS RECOMMENDED PAY INCREASES TO THE CONGRESS, THE INCREASES GO INTO EFFECT UNLESS WITHIN 30 DAYS OF SUBMISSION THEY ARE DISAPPROVED BY A JOINT RESOLUTION OF CONGRESS. WHERE THE HOUSE DID NOT ACT ON THE DISAPPROVAL RESOLUTION PASSED BY THE SENATE UNTIL 31 DAYS AFTER THE RECOMMENDATIONS WERE SUBMITTED, SUBSEQUENT SIGNATURE BY THE PRESIDENT OF A BILL CONTAINING THE DISAPPROVAL PROVISION HAS NO EFFECT ON THE RECOMMENDED PAY INCREASES, AND THOSE INCREASES GO INTO EFFECT AS SCHEDULED. CIVILIAN PERSONNEL - COMPENSATION - INCREASE - APPROVAL - PROCEDURES - EFFECTIVE DATES 2. UNDER 2 U.S.C. SEC. 359 (SUPP. III 1985), THE PRESIDENT SUBMITTED RECOMMENDED PAY INCREASES TO THE CONGRESS. THE INCREASES WERE NOT DISAPPROVED BY THE CONGRESS WITHIN THE STATUTORY PERIOD OF 30 DAYS, WHICH ENDED FEBRUARY 3, 1987. SECTION 359 PROVIDES THAT THE PAY INCREASES ARE NOT TO BE ACTUALLY PAID UNTIL THE FIRST PAY PERIOD BEGINNING AFTER THE END OF THE DISAPPROVAL PERIOD. PAY PERIODS FOR FEDERAL JUDGES, ARE MONTHLY. THUS, THE PAY INCREASES FOR THE JUDGES WOULD NOT BE PAYABLE UNTIL MARCH 1, 1987. IF THE CONGRESS AND THE PRESIDENT COMPLETE PASSAGE OF LEGISLATION RESCINDING THE PAY INCREASES PRIOR TO MARCH 1, THE JUDGES WOULD NOT RECEIVE THE INCREASE. UNDER UNITED STATES V. WILL, 449 U.S. 200 (1980), PAY INCREASES FOR JUDGES DO NOT VEST WITHIN THE MEANING OF THE COMPENSATION CLAUSE, ARTICLE III, SECTION 1 OF THE CONSTITUTION UNTIL THE INCREASE IS "DUE AND PAYABLE," AND FOR THE JUDGES THAT WOULD NOT BE UNTIL MARCH 1.

THE HONORABLE WILLIAM D. FORD CHAIRMAN, COMMITTEE ON POST OFFICE AND CIVIL SERVICE HOUSE OF REPRESENTATIVES:

WE REFER TO YOUR LETTER OF FEBRUARY 6, 1987, IN WHICH YOU ASK TWO QUESTIONS CONCERNING THE PRESIDENT'S PAY RECOMMENDATIONS WHICH WERE TRANSMITTED TO THE CONGRESS ON JANUARY 5, 1987. THOSE QUESTIONS ARE:

"1. ASSUMING THE PRESIDENT APPROVES H.J. RES. 102, CONTAINING THE SENATE'S PAY DISAPPROVAL LANGUAGE, WHAT EFFECT WILL SUCH LANGUAGE HAVE WITH RESPECT TO THE PRESIDENT'S PAY RECOMMENDATIONS?

"2. IF THE CONGRESS SHOULD ENACT LEGISLATION PRIOR TO MARCH 1, 1987, RESCINDING THE PAY INCREASES PROPOSED BY THE PRESIDENT, WHAT EFFECT WILL SUCH LEGISLATION HAVE ON THE PAY INCREASES PROPOSED BY THE PRESIDENT FOR FEDERAL JUDGES?"

WE WILL ANSWER YOUR QUESTIONS IN THE ORDER PRESENTED.

WITH RESPECT TO THE FIRST QUESTION IT IS NECESSARY TO EXAMINE THE BASIC STATUTORY PROVISION WHICH PRESCRIBES THE DISAPPROVAL MECHANISM. THAT MECHANISM IS SET OUT IN 2 U.S.C. SEC. 359 (SUPP. III 1985), WHICH PROVIDES THAT:

"(1) THE RECOMMENDATIONS OF THE PRESIDENT WHICH ARE TRANSMITTED TO THE CONGRESS PURSUANT TO SECTION 358 OF THIS TITLE SHALL BE EFFECTIVE AS PROVIDED IN PARAGRAPH (2) OF THIS SECTION UNLESS ANY SUCH RECOMMENDATION IS DISAPPROVED BY A JOINT RESOLUTION AGREED TO BY THE CONGRESS NOT LATER THAN THE LAST DAY OF THE 30-DAY PERIOD WHICH BEGINS ON THE DATE OF WHICH SUCH RECOMMENDATIONS ARE TRANSMITTED TO THE CONGRESS."

HOUSE JOINT RESOLUTION 102, AS AMENDED BY THE SENATE, A MEASURE PROVIDING APPROPRIATIONS FOR ASSISTANCE TO HOMELESS PERSONS, WAS PASSED BY THE HOUSE OF REPRESENTATIVES ON FEBRUARY 4, 1987. WE NOTE THAT H.J. RES. 102 WAS SIGNED BY THE PRESIDENT ON FEBRUARY 12, 1987.

THE SENATE AMENDMENTS INCLUDED A PROVISION DISAPPROVING THE PRESIDENT'S RECOMMENDED PAY INCREASES. THAT DISAPPROVAL PROVISION READS AS FOLLOWS:

"THE RECOMMENDATIONS OF THE PRESIDENT RELATING TO RATES OF PAY FOR OFFICES AND POSITIONS WITHIN THE PURVIEW OF SECTION 225(F) OF THE FEDERAL SALARY ACT OF 1967, AS INCLUDED (PURSUANT TO SECTION 225(H) OF SUCH ACT) IN THE BUDGET TRANSMITTED TO THE CONGRESS FOR FISCAL YEAR 1988, ARE DISAPPROVED." 133 CONG.REC. S1374 (DAILY ED. JAN. 29, 1987).

IT IS OUR VIEW THAT THE ABOVE-QUOTED DISAPPROVAL PROVISION PURPORTS TO BE JUST THAT, A DISAPPROVAL OF THE PRESIDENT'S RECOMMENDED PAY INCREASE PURSUANT TO 2 U.S.C. SEC. 359. AS SUCH, TO BE EFFECTIVE IT HAD TO HAVE BEEN PASSED BY BOTH HOUSES OF THE CONGRESS PRIOR TO THE EXPIRATION OF THE 30-DAY PERIOD SET OUT IN 2 U.S.C. SEC. 359. THE HOUSE DID NOT ACT ON THE DISAPPROVAL RESOLUTION BY FEBRUARY 3, WHICH WAS THE LAST DAY OF THE 30-DAY PERIOD. THEREFORE, SINCE THE STATUTORY REQUIREMENT OF DISAPPROVAL BY JOINT RESOLUTION OF THE CONGRESS WITHIN 30 DAYS WAS NOT MET, THE SUBSEQUENT ENACTMENT OF H.J. RES. 102 HAD NO EFFECT ON THE RECOMMENDED PAY INCREASES.

WE UNDERSTAND THAT WHEN THE PRESIDENT SIGNED H.J. RES. 102, HE ISSUED A STATEMENT THAT INCLUDED HIS VIEWS ON THE EFFICACY OF THE DISAPPROVAL PROVISION. THE PRESIDENT STATED THAT HE WAS ADVISED BY THE ATTORNEY GENERAL THAT THE DISAPPROVAL WAS WITHOUT ANY LEGAL FORCE BECAUSE IT WAS NOT PASSED WITHIN THE REQUIRED 30 DAYS.

IN ANSWERING YOUR SECOND QUESTION, WE MUST DECIDE WHEN THE PAY INCREASES "VEST" FOR JUDGES WITHIN THE MEANING OF UNITED STATES V. WILL, 449 U.S. 200 (1980). ONCE THE PAY INCREASES HAVE VESTED, AS DEFINED BY WILL, THEY CANNOT BE RESCINDED WITHOUT VIOLATING THE COMPENSATION CLAUSE, ARTICLE III, SECTION 1 OF THE CONSTITUTION, WHICH PROHIBITS THE DIMINISHMENT OF A JUDGE'S COMPENSATION. TO REACH THAT DECISION, WE MUST CONSIDER BOTH SUBSECTION (1) OF 2 U.S.C. SEC. 359, WHICH IS SET OUT ABOVE, AND SUBSECTION (2) OF THAT SECTION WHICH PROVIDES THAT:

"(2) THE EFFECTIVE DATE OF THE RATE OR RATES OF PAY WHICH TAKE EFFECT FOR AN OFFICE OR POSITION UNDER PARAGRAPH (1) OF THIS SECTION SHALL BE THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGINS FOR SUCH OFFICE OR POSITION AFTER THE END OF THE 30-DAY PERIOD DESCRIBED IN SUCH PARAGRAPH."

UNDER SUBPARAGRAPH (1), THE PAY INCREASES BECOME EFFECTIVE "AS PROVIDED IN PARAGRAPH (2) OF THIS SECTION," IF NOT DISAPPROVED WITHIN 30 DAYS. UNDER SUBPARAGRAPH (2), THE PAY INCREASES BECOME EFFECTIVE ON THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGINS AFTER THE EXPIRATION OF THE 30- DAY DISAPPROVAL PERIOD. THE DISCUSSION IN WILL INDICATES THAT JUDGES ARE PAID ON A MONTHLY BASIS. THUS, SINCE THE 30 DAY DISAPPROVAL PERIOD EXPIRED FEBRUARY 3, THE FIRST PAY PERIOD FOR JUDGES STARTING AFTER THAT DATE BEGINS ON MARCH 1, 1987.

THE QUESTION OF WHEN A JUDGE'S PAY INCREASE "VESTS" IS DISCUSSED IN WILL. THERE, THE SUPREME COURT SAID:

"TO SAY THAT THE CONGRESS COULD NOT ALTER A METHOD OF CALCULATING SALARIES BEFORE IT WAS EXECUTED WOULD MEAN THE JUDICIAL BRANCH COULD COMMAND CONGRESS TO CARRY OUT AN ANNOUNCED FUTURE INTENT AS TO A DECISION THE CONSTITUTION VESTS EXCLUSIVELY IN THE CONGRESS. WE THEREFORE CONCLUDE THAT A SALARY INCREASE 'VESTS' FOR PURPOSES OF THE COMPENSATION CLAUSE ONLY WHEN IT TAKES EFFECT AS PART OF THE COMPENSATION DUE AND PAYABLE TO ARTICLE III JUDGES. *** WE HOLD THAT THE COMPENSATION CLAUSE DID NOT PROHIBIT CONGRESS FROM REPEALING THE PLANNED BUT NOT YET EFFECTIVE COST-OF -LIVING ADJUSTMENT OF OCTOBER 1, 1977, WHEN IT DID SO BEFORE OCTOBER 1, THE TIME IT FIRST WAS SCHEDULED TO BECOME PART OF JUDGES' COMPENSATION ***." 449 U.S. AT 228-229.

APPLYING THIS ANALYSIS TO THE CURRENT RECOMMENDED PAY INCREASES, IF CONGRESS HAD PASSED AND THE PRESIDENT HAD SIGNED A BILL RESCINDING THE PAY INCREASES BEFORE MARCH 1, 1987, WE BELIEVE THE BETTER VIEW IS THAT THE PAY INCREASES WOULD NOT HAVE GONE INTO EFFECT FOR THE JUDGES. THIS IS SO BECAUSE THE PAY INCREASES HAD NOT YET BECOME "DUE AND PAYABLE" WITHIN THE MEANING OF WILL, AND THEREFORE, THERE WOULD BE NO CONSTITUTIONAL IMPEDIMENT TO THEIR REPEAL, SINCE THE INCREASES HAD NOT "VESTED." NOTE, HOWEVER, THAT THE PRECISE ISSUE PRESENTED IN YOUR QUESTION WAS NOT AT ISSUE IN WILL, SINCE IN THAT CASE, BOTH THE PAY INCREASE AND ITS EFFECTIVE DATE WERE THE SAME DAY.