B-47471, JULY 30, 1945, 25 COMP. GEN. 138

B-47471, JULY 30, 1945, 25 COMP. GEN. 138

FEDERAL EMPLOYEES PAY ACT OF 1945 - APPLICABILITY TO ADDITIONAL BAILIFFS; COMPUTATION OF BASIC INCREASES OF COMPENSATION FIXED AT PER DIEM RATES ADDITIONAL BAILIFFS APPOINTED BY UNITED STATES MARSHALS AT A SPECIFIED PER DIEM RATE OF COMPENSATION, AS PROVIDED BY SECTION 5 OF THE ACT OF DECEMBER 7, 1944, ARE TO BE REGARDED AS IN THE EXECUTIVE BRANCH WITH BASIC RATES OF COMPENSATION "SPECIFICALLY PRESCRIBED BY STATUTE," WITHIN THE MEANING OF SECTION 602 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AND ENTITLED TO A BASIC COMPENSATION INCREASE AND, IN PROPER CASES, TO OVERTIME COMPENSATION UNDER SECTIONS 405 AND 201 OF THE ACT, RESPECTIVELY, RATHER THAN AS IN THE JUDICIAL BRANCH AND ENTITLED TO THE BASIC COMPENSATION INCREASE AND THE TEMPORARY PERCENTAGE ADDITION TO COMPENSATION PROVIDED BY SECTION 521 AND 522, RESPECTIVELY. FOR PURPOSES OF COMPUTING UNDER SECTION 405 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 THE NEW BASIC PER DIEM RATE OF COMPENSATION OF ADDITIONAL BAILIFFS APPOINTED BY UNITED STATES MARSHALS--- THE OLD RATE HAVING BEEN FIXED AT $6 PER DAY BY SECTION 5 OF THE ACT OF DECEMBER 7, 1944--- THE OLD RATE SHOULD BE MULTIPLIED BY 260 (APPLYING IN REVERSE THE FORMULA APPEARING IN SECTION 604 (D) OF THE 1945 ACT) TO OBTAIN THE PER ANNUM EQUIVALENT, WHICH EQUIVALENT SHOULD BE INCREASED BY THE PERCENTAGES PRESCRIBED BY SAID SECTION 405 AND THE RESULTING NEW PER ANNUM EQUIVALENT DIVIDED BY 260.

COMPTROLLER GENERAL WARREN TO THE ATTORNEY GENERAL, JULY 30, 1945:

I HAVE YOUR LETTER OF JULY 19, 1945, REF. A3-5, AS FOLLOWS:

PLEASE REFER TO THE DEPARTMENT'S LETTER ON JANUARY 23, 1945 AND TO YOUR REPLY OF FEBRUARY 14, B-47471, DEALING WITH COMPENSATION OF BAILIFFS.

THE DEPARTMENT WILL APPRECIATE RECEIVING YOUR DECISION AS TO WHETHER THE DAILY RATE FOR BAILIFFS PRESCRIBED BY PUBLIC LAW 468, 78TH CONGRESS, APPROVED DECEMBER 7, 1944, IS CHANGED BY SECTION 602 (B) OF THE FEDERAL EMPLOYEES' PAY ACT OF 1945 AND, IF SO, KINDLY STATE THE DAILY RATE.

IT IS UNDERSTOOD YOUR LETTER RELATES TO THE ADDITIONAL BAILIFFS AUTHORIZED TO BE APPOINTED BY THE UNITED STATES MARSHALS PURSUANT TO THE FOLLOWING PROVISION APPEARING IN SECTION 5 OF THE ACT OF DECEMBER 7, 1944 ( PUBLIC LAW NO. 468, 78TH CONGRESS,) 58 STAT. 796:

* * * THE MARSHAL FOR EACH DISTRICT MAY APPOINT SUCH A NUMBER OF ADDITIONAL BAILIFFS, NOT EXCEEDING FOUR, AS THE DISTRICT JUDGE MAY DETERMINE, TO MAINTAIN ORDER IN THE COURTROOM, TO WAIT UPON THE GRAND AND PETIT JURIES, AND FOR OTHER NECESSARY PURPOSES, WHO SHALL BE ALLOWED FOR THEIR SERVICES THE SUM OF $6 PER DAY TO BE PAID ONLY FOR ACTUAL ATTENDANCE ON DAYS WHEN THE COURT IS IN SESSION OR A JURY IS PRESENT. * * *

THE REFERRED-TO DECISION OF FEBRUARY 14, 1945, B-47471, HELD THAT THE $6 PER DAY RATE PRESCRIBED BY THE QUOTED STATUTE WAS BASIC COMPENSATION FOR THE ADDITIONAL BAILIFFS AND, THEREFORE, WAS AUTHORIZED TO BE INCREASED BY 15 PERCENT, OR TO $6.90, PURSUANT TO THE PROVISIONS OF THE WAR OVERTIME PAY ACT OF 1943, 57 STAT. 76, WHICH EXPIRED JUNE 30, 1945. HENCE, THE 90 CENTS (15 PERCENT OF $6) IS NOT PAYABLE ON AND AFTER JULY 1, 1945 THERE APPEARING NO PROVISION IN THE FEDERAL EMPLOYEES PAY ACT OF 1945 CORRESPONDING TO THE PROVISION IN THE PRIOR OVERTIME LAW FOR A 15 PERCENT INCREASE IN COMPENSATION OF OFFICERS AND EMPLOYEES IN THE EXECUTIVE BRANCH OF THE GOVERNMENT.

SECTION 602 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 302, PROVIDES:

BASIC RATES OF COMPENSATION SPECIFICALLY PRESCRIBED BY STATUTE OF CONGRESS FOR POSITIONS IN THE EXECUTIVE BRANCH OR THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT WHICH ARE NOT INCREASED BY ANY OTHER PROVISION OF THIS ACT ARE HEREBY INCREASED IN THE SAME AMOUNT THAT CORRESPONDING RATES WOULD BE INCREASED UNDER THE PROVISIONS OF SECTION 405 OF THIS ACT; AND EACH SUCH AUGMENTED RATE SHALL BE CONSIDERED TO BE THE REGULAR BASIC RATE OF COMPENSATION.

THE ACT OF AUGUST 7, 1939, 53 STAT. 1223, ESTABLISHING THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS CONTAINS THE FOLLOWING PROVISION (QUOTING FROM SECTION 304 (1), CHAPTER XV, ADDED TO THE JUDICIAL CODE BY SAID ACT):

* * * NOTHING CONTAINED IN THIS CHAPTER SHALL BE CONSTRUED AS EFFECTING * * * THE AUTHORITY OF THE ATTORNEY GENERAL RESPECTING UNITED STATES MARSHALS AND THEIR DEPUTIES * * *.

THE APPROPRIATION ITEM," PAY AND EXPENSES OF BAILIFFS," APPEARS IN THE DEPARTMENT OF JUSTICE APPROPRIATION ACT, 1946, APPROVED MAY 21, 1945, 59 STAT. 184, PUBLIC LAW 61, AND SAID APPROPRIATION ITEM IS UNDER THE ADMINISTRATIVE CONTROL OF THE ATTORNEY GENERAL. ACCORDINGLY, FOR THE PURPOSE OF COMPUTING COMPENSATION, BAILIFFS WHO ARE APPOINTED BY AND SERVE UNDER A UNITED STATES MARSHAL, PROPERLY ARE TO BE REGARDED AS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT WITHIN THE MEANING OF SECTION 602 (B) OF THE NEW PAY STATUTE, SUPRA, RATHER THAN IN THE JUDICIAL BRANCH OF THE GOVERNMENT WITHIN THE MEANING OF SECTIONS 521 AND 522 OF THE NEW PAY STATUTE, 59 STAT. 301, 302.

UNQUESTIONABLY, THE BASIC RATE OF COMPENSATION OF $6 PER DAY PROVIDED BY STATUTE FOR THE ADDITIONAL BAILIFFS HAS BEEN "SPECIFICALLY PRESCRIBED BY STATUTE OF CONGRESS"--- ACT OF DECEMBER 7, 1944, SUPRA. THEREFORE, SAID BAILIFFS ARE ENTITLED TO AN INCREASE IN THEIR OLD BASIC RATE OF COMPENSATION OF $6 PER DAY COMPUTED PURSUANT TO THE FORMULA PRESCRIBED BY SECTION 405 OF THE STATUTE, 59 STAT. 300, THAT IS,"INCREASED BY 20 PERCENTUM OF THAT PART THEREOF WHICH IS NOT IN EXCESS OF $1,200 PER ANNUM, PLUS 10 PERCENTUM OF THAT PART THEREOF WHICH IS IN EXCESS OF $1,200 PER ANNUM BUT NOT IN EXCESS OF $4,600 PER ANNUM.'

ACTUALLY, THERE IS NO FORMULA APPEARING IN THE NEW PAY STATUTE FOR DETERMINING THE PER ANNUM EQUIVALENT OF A PER DAY RATE OF BASIC COMPENSATION PRESCRIBED BY STATUTE. IN THE ABSENCE THEREOF, IT IS NECESSARY TO ADOPT A FORMULA IN ORDER TO CARRY OUT THE PURPOSE AND INTENT OF THE NEW PAY STATUTE AS NEARLY AS MAY BE POSSIBLE. REVERSING THE FORMULA APPEARING IN SECTION 604 (D) OF THE NEW PAY STATUTE, 59 STAT. 304, THE PER ANNUM EQUIVALENT OF THE PER DAY RATE OF $6 IS (6 TIMES 260,) $1,560. INCREASING SUCH PER ANNUM RATE BY 20 PERCENT ON THE FIRST $1,200, AND 10 PERCENT ON THE BALANCE OF $360, THE NEW EQUIVALENT PER ANNUM BASIC RATE OF COMPENSATION FOR THE ADDITIONAL BAILIFFS IS $1,836, WHICH PER ANNUM RATE DIVIDED BY 260 IS $7.06, THE NEW BASIC PER DAY RATE OF COMPENSATION TO WHICH THE ADDITIONAL BAILIFFS ARE ENTITLED ON AND AFTER JULY 1, 1945, FOR EACH DAY OF "ACTUAL ATTENDANCE ON DAYS WHEN THE COURT IS IN SESSION OR A JURY IS PRESENT.'

ALSO, SAID ADDITIONAL BAILIFFS WOULD BE ENTITLED TO OVERTIME COMPENSATION PURSUANT TO THE FORMULA PRESCRIBED BY SECTION 201 OF THE NEW PAY STATUTE, 59 STAT. 296,"FOR ALL HOURS OF EMPLOYMENT, OFFICIALLY ORDERED OR APPROVED, IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE RKWEEK,"--- THERE APPEARING NOTHING IN SECTION 101 OR 102 OF THE NEW PAY STATUTE, 59 STAT. 295, 296, TO EXEMPT THEM FROM THE OVERTIME PROVISIONS OF THE LAW.