BNUMBER: B-261589
DATE: March 6, 1996
TITLE: Federal Judges V-Compensation-Implied Repeal of
Appropriations Rider Limitation on Pay Increases
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Matter of:Federal Judges V-Compensation-Implied Repeal of
Appropriations Rider Limitation on Pay Increases
File: B-261589
Date:March 6, 1996
DIGEST
A law that bars pay increases for federal judges and justices except
as specifically authorized by Congress was not impliedly repealed by a
subsequent act amending the method by which automatic annual pay
adjustments are to be calculated for judicial branch employees.
Repeals by implication are strongly disfavored and may be found only
where Congress' intent to repeal is clear and manifest.
DECISION
The Honorable Barefoot Sanders, United States Circuit Judge,[1] asks
whether a limitation on pay increases included in section 140 of the
Continuing Resolution Act of December 15, 1981, Pub. L. No. 97-92, 95
Stat. 1183 was impliedly repealed by the Ethics Reform Act of 1989,
Pub. L. No. 101-194, 103 Stat. 1716.[2] We think not.
BACKGROUND
Before Congress adopted section 140, salaries for justices, judges,
officers and magistrates in the judicial branch were subject to annual
cost-of-living adjustments as provided by 28 U.S.C. sec. 461. This
section essentially granted individuals whose salaries were subject to
adjustments by that section the same percentage salary increase
authorized for general schedule employees, which generally took effect
with the first pay period of each fiscal year. Because justices and
judges have a monthly pay period, their increases under this plan took
effective at midnight on October 1.
In 1976, Congress attempted to repeal the automatic cost-of-living
adjustments for senior executives, including justices and judges.
However, the bill was not signed into law until sometime during the
day of October 1, 1976. In United States v. Will, 449 U.S. 200
(1980), the Supreme Court held that, since the justices' and judges'
salary increases already had taken effect at the beginning of the day,
the attempted repeal of the scheduled salary increase "diminished"
their pay in violation of Article III of the Constitution. Thus,
federal justices and judges kept the automatic salary increases that
were denied to executives in the other branches of government.
To prevent these so-called "backdoor" increases, Congress passed
section 140 in 1981, which provides, in part, that "none of the funds
appropriated by this joint resolution or by any other act shall be
obligated or expended to increase, after the date of enactment of this
joint resolution, any salary of any federal judge or justice of the
Supreme Court, except as may be specifically authorized by act of
Congress hereafter enacted . . . ."
We have had several occasions to interpret section 140. In Federal
Judges, 62 Comp. Gen. 54 (1982), we concluded that section 140,
although included in an annual appropriation bill, nonetheless had
sufficient words of futurity to constitute permanent legislation, thus
effectively exempting justices and judges from the automatic salary
increases in the absence of a specific authorization by Congress.
Subsequently, we considered separate acts of Congress to determine
whether they met this requirement, finding in one case that it did,
Federal Judges II, 62 Comp. Gen. 358 (1983), and in one case that it
did not, Federal Judges III, 63 Comp. Gen. 141 (1983).
We reexamined our initial determination that section 140 constituted
permanent legislation in Federal Judges IV, 65 Comp. Gen. 552 (1986),
and reached the same result. We also noted in that case our doubt
that Congress intended to deny federal justices and judges the same
salary adjustments granted to other federal employees. We urged the
Congress to clarify the situation by repealing section 140 and
amending the statutes governing judicial pay to prevent backdoor
increases by delaying the effective date of the pay increase for
judges until 30 days following the effective date of pay increases for
other high-level officials, but making the justices' and judges' pay
increases retroactive to that effective date. Id. at 357. To assist
the Congress, we submitted proposed language to the Chairmen of the
Appropriations and Judiciary Committees of the Senate and House of
Representatives. However, Congress has not acted on this
recommendation.
The Ethics Reform Act
Among other things, the Ethics Reform Act addressed a number of
compensation issues. Section 702 of the act reinstated scheduled
salary adjustments for government executives that would have taken
effect automatically in 1989 and 1990 but for special legislation
exempting them from the increases. To extend these salary adjustments
to federal judges and justices, this section also stated, "For
purposes of section 140 . . . appropriate salary increases are hereby
authorized for federal judges and justices of the Supreme Court . . .
." sec. 702(c). Section 703 of the act, among other things, authorized
a 25 percent increase in salaries for federal judges and justices
effective the first pay period on or after January 1, 1991. Of most
importance here is section 704, which substituted the Economic Cost
Index (ECI) for the then existing method of determining annual salary
adjustments under section 461 and other sections in the United States
Code adjusting salaries for various federal employees. Before
enactment of the Ethics Reform Act, the relevant portion of section
461 stated (with the deleted language underlined):
"(a) Effective at the beginning of the first applicable pay
period commencing on or after the first day of the month in which
an adjustment takes effect under section 5305 of title 5 in the
rates of pay under the General Schedule (except as provided in
subsection (b)), each salary rate which is subject to adjustment
under this section shall be adjusted by an amount, rounded to the
nearest multiple of $100 (or if midway between multiples of $100,
to the next higher multiple of $100) equal to the percentage of
such salary rate which corresponds to the percentage of such
salary rate which corresponds to the overall average percentage
(as set forth in the report transmitted to the Congress under
such section 5305) of the adjustments in the rates of pay under
such Schedule." 28 U.S.C. sec. 461(a) (1988).
As amended, the section now states (with the new language underlined):
"(a) Effective at the beginning of the first applicable pay
period commencing on or after the first day of the month in which
an adjustment takes effect under section 5303 of title 5 in the
rates of pay under the General Schedule (except as provided in
subsection (b)), each salary rate which is subject to adjustment
under this section shall be adjusted by an amount, rounded to the
nearest multiple of $100 (or if midway between multiples of $100,
to the next higher multiple of $100) equal to the percentage of
such salary rate which corresponds to the most recent percentage
change in the ECI (relative to the date described in the next
sentence), as determined under section 704(a)(1) of the Ethics
Reform Act of 1989. The appropriate date under this sentence is
the first day of the fiscal year in which such adjustment in the
rates of pay under the General Schedule takes effect." 28 U.S.C. sec.
461(a) (1994).
The effect of this change was to provide a method for determining
cost-of-living increases for senior government officials that was not
tied to the method used to determine similar increases for general
schedule employees then described at 5 U.S.C. sec. 5305.[3] The
Bipartisan Task Force on Ethics, whose report was adopted in lieu of a
formal House committee report,[4] gave this explanation for the
change:
"Future COLA Adjustments.-Because the current system of
considering comparability adjustments for top officials is tied
to the procedure for other Federal workers under the General
Schedule, these senior officials in all three branches have been
the most vulnerable to and the most hurt by riders to
appropriations bills to deny them COLAs when other Federal
employees receive theirs. This is the single most important
explanation for the growing disparity between top salaries in
government and the private sector, and the 38% loss of purchasing
power by these officials since 1969.
"For this reason, the task force recommends that, beginning in
1991, a separate index be used to determine whether or not there
should be an annual salary adjustment for these top officials.
Specifically, the task force recommends that prospective
adjustments be pegged to the rate in the Economic Cost Index
(ECI) minus one-half a percent (0.5%). The ECI is a quarterly
index of wages and salaries for private industry workers prepared
by the Bureau of Labor Statistics." 135 Cong. Rec. 30,753
(1989), Report of the Bipartisan Task Force on Ethics on H.R.
3660, Government Ethics Reform Act of 1989.
As we noted, Judge Sanders believes that section 704 may have repealed
section 140 by implication. His letter includes a quotation from the
Congressional Record from the Honorable Robert Kastenmeier, the
then-Chairman of the House Judiciary Subcommittee on Courts,
Intellectual Property and the Administration of Justice, who asserted
that, because section 704 positively amends section 461 and does not
codify section 140, "I think it is fair to conclude that section 140
is impliedly repealed." 135 Cong. Rec. H87671 (daily ed. Nov. 16,
1989) (statement of Rep. Kastenmeier). Judge Sanders also states that
Congress' express reference to section 140 in section 702, which
restored the 1989 and 1990 pay increases, and the failure of Congress
to refer to section 140 in section 704, which amended section 461,
shows that the Congress no longer believed that specific compliance
with section 140 was necessary. Judge Sanders acknowledges that
Congress expressly granted pay adjustments to the judges in 1991, 1992
and 1993. However, he suggests that this may reflect Congress'
"abundance of caution," rather than the view that section 140 still
required such measures.
OPINION
Repeals by implications are not favored and will not be found unless
an intent to repeal is clear and manifest. Rodriguez v. United
States, 480 U.S. 522 (1987). "In the absence of some affirmative
showing of an intention to repeal, the only permissible justification
for a repeal by implication is when the earlier and later statutes are
irreconcilable." Morton v. Mancuri, 417 U.S. 535 at 548 (1974). See
also Watt v. Alaska, 451 U.S. 259 (1981). We do not believe section
704 meets this test.
By its own terms, with respect to judicial branch officers and
employees, section 704 of the Ethics Reform Act changed only the
method of calculating annual pay adjustments for those persons whose
pay is "subject to adjustment" under section 461. As a result of this
change, senior government officials who are entitled to cost-of-living
increases no longer have their increases tied to the increases
approved for General Schedule employees. The act did nothing to
increase or decrease the class of senior officials entitled to
automatic salary increases.
As we noted in Federal Judges, supra, section 140 removed federal
judges and justices from among the classes of persons whose pay was
adjusted by section 461, but this did not render section 461
superfluous since the salaries of officers and magistrates remained
subject to adjustments under that section. Therefore, there also is
nothing irreconcilable between sections 704 and 461. Notwithstanding
Rep. Kastenmeier's remark, nothing in the text of section 704 or its
legislative history indicates that Congress intended to reverse itself
and again place justices and judges among the persons whose salaries
are subject to adjustments under section 461.
Congress' subsequent enactment of specific measures granting judicial
pay raises may be regarded simply as an abundance of caution, as Judge
Sanders suggests. On the other hand, it is equally plausible to
regard such enactments as acknowledgements of section 140's continued
authority. We need not resolve this dilemma. The very existence of
differing reasonable interpretations is sufficient to establish that
Congress' intention to repeal section 140 was not "clear and
manifest."
As we noted above, in Federal Judges IV, section 140 produced the
unintended consequence of denying federal judges and justices the
salary adjustments authorized for General Schedule workers, and we
submitted draft legislation to the Congress that would provide for
such increases while addressing Congress' concern about backdoor
increases. Congress' failure to act on this recommendation when
revising the very statutes they addressed is further evidence that
Congress did not intend to repeal section 140. United States v.
Riverside Bevy Homes, Inc., 474 U.S. 121 (1985).[5]
Accordingly, we conclude that section 704 of the Ethics Reform Act did
not repeal section 140 of the Continuing Resolution Act of December
15, 1981.
/s/Robert P. Murphy
for Comptroller General
of the United States
1. Judge Sanders has written in his capacity as the Chairman of the
Judicial Conference Committee on the Judicial Branch.
2. This law amended a number of sections of the United States Code.
The sections discussed in this decision primarily are found at 5
U.S.C. sec. 5318 note and 28 U.S.C. sec. 461 note (1994).
3. Just 1 year after the Ethics Reform Act, Congress made substantial
changes in section 5305 and other sections in Chapter 53 of title V
with the enactment of the Federal Employees Pay Comparability Act of
1990 (locality pay), Pub. L. No. 101-509, sec. 529, 104 Stat. 1389, 1427
(1990).
4. See H.R. Rep. No. 101-362, 101st Cong., 1st Sess. (1989).
5. We note that the Senator Orrin Hatch, Chairman, Senate Judiciary
Committee, has introduced legislation explicitly to repeal section
140. See S. 1011, 104th Cong., 1st Sess. sec. 504 (1995).