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as specifically authorized by Congress was not impliedly repealed by a 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Stat. 1183 was impliedly repealed by the Ethics Reform Act of 1989, 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).