In re Additional Compensation, Annual Leave & Cost-of Living Allowance, B-171947

Citation54 Comp.Gen. 251
Decision Date02 October 1974
Docket NumberB-171947
PartiesIN THE MATTER OF ADDITIONAL COMPENSATION, ANNUAL LEAVE AND COST-OF LIVING ALLOWANCE
CourtComptroller General of the United States

Courts - reporters - additional compensation - maximum limitation court reporter who served in dual capacity as court reporter secretary under authority of 28 U.S.C. 753(a) is not entitled to additional pay for performance of secretarial duties in excess of maximum established under 28 U.S.C. 753(e) as in effect prior to June 2, 1970. While language of 753(a) does not clearly so limit compensation for combined positions, the derivative language of public law 78-222, which was revised codified and enacted without substantive change by public law 80-773, expressly provided that the salary for such a combined position was to be established subject to the statutorily prescribed maximum. Foreign differentials and overseas allowances - territorial cost of living allowance - inclusion for aggregate limitation purposes - judicial staff members determination by judicial conference that limitation at 28 U.S.C. 753(e) on annual salary payable to court reporters precludes payment of cost-of- living allowance to reporters receiving maximum salary is reasonable exercise of paysetting authority given the lack of any indication that congress intended reporters to receive compensation, other than transcript fees, in excess of that maximum. Determination is in line with our holding in B-107827 November 9, 1973, that cost-of living allowance payable to judges' secretaries and clerks under 28 U.S.C. 604(a)(5) is subject to appropriations limitations on aggregate salary. Leaves of absence - court reporters - leave accrual court reporters paid annual salary to be on call as needed by the court and free otherwise to augment income with earnings from transcript fees do not have regular tours of duty consisting of a definite time, day and/or hour which they are required to work during workweek and are "part-time" employees excluded from annual leave entitlement by 5 U.S.C 6301(2)(ii). While court reporter-secretary May be entitled to annual leave for secretarial portion of duties performed during a regular tour of duty, record contains no certification of leave earnings and use upon which to base lump-sum leave payment.

By his letter of October 23, 1963, Mr. John e. Barnes, a former court reporter employed by the district court of guam, has appealed the administrative denial of his claim for additional compensation for performance of secretarial duties, for a cost-of-living allowance and for annual leave. In view of the 10-year statute of limitations applicable to claims against the government contained at 31 U.S.C. 71a, our determination as to Mr. Barnes' entitlement is based upon the circumstances of his employment after November 2, 1962 the point in time 10 years prior to the date on which his claim was received by our transportation and claims division.

In regard to his claim for additional compensation, Mr. Barnes points out that for a substantial period of time he functioned in the dual capacity of court reporter-secretary. The Administrative Office of the United States courts has confirmed that for the periods October 29, 1951, to January 2, 1954; February 19, 1959, to June 24, 1961; and September 30, 1963, to September 23, 1968, Mr. Barnes served in that dual capacity under the authority of the following provision of 28 U.S.C. 753(a) which provides in part that:

If any such court and the judicial conference are of the opinion that it is in the public interest that the duties of reporter should be combined with those of any other employee of the court, the judicial conference May authorize such a combination and fix the salary for the performance of the duties combined.

Mr Barnes indicates that for the first few months of the term in which he served as court reporter-secretary he was paid additional compensation based on his performance of those secretarial duties, but that thereafter he received no additional compensation for those responsibilities. Thus claims entitlement to additional compensation for his performance of secretarial duties throughout the period that he served in that dual capacity.

Prior to October 11, 1962, subsection 753(e) of title 28 of the U.S.C. Had provided as follows:

(e) each reporter shall receive an annual salary to be fixed from time to time by the judicial conference of the United States at not less than $3, 000 nor more than $7, 630 per annum. ***

Public law 87-793, October 11, 1962, 76 stat. 866, 28 U.S.C. 753 note, amended that subsection of the U.S.C. As follows:

(c) section 753(e) of title 28 of the U.S.C. (relating to the compensation of court reporters for district courts) is amended by striking out the existing salary limitation contained therein and inserting a new limitation to be effective for the period beginning as of the first day of the first pay period which begins on or after the date of enactment of this act, and ending immediately prior to the first day of the first pay period which begins on or after January 1, 1964, and a second new limitation effective on the first day of the first pay period which begins on or after January 1, 1964, and thereafter, which reflect the respective applicable increases provided by title ii of this part in corresponding rates of compensation for officers and employees subject to the classification act of 1949, as amended.

We are advised by the Administrative Office of the United States courts that on September 30, 1963, when Mr. Barnes' position was designated court reporter-secretary, his salary was increased from $7, 535 to $8, 310 per annum. Prior to 1964 we understand that all court reporters were not paid at the maximum rate provided under subsection 753(e) as amended, but that reporters in less busy districts, including guam, were paid at a lesser rate established by the judicial conference. The increase received by Mr. Barnes in 1963 thus represents the difference in pay for the position of court reporter to the district court of guam and the maximum amount payable under subsection 753(e), as amended. We are advised that throughout the period prior to September 23, 1968, during which he served as court reporter-secretary, Mr. Barnes received compensation at the maximum rate payable under that subsection. Thus, Mr. Barnes apparently is of the opinion that he is entitled to additional compensation by reason of his performance of secretarial duties notwithstanding that he received the maximum compensation payable under 28 U.S.C. 753(e).

While the above-quoted language of subparagraph 753(a), authorizing the judicial conference to combine the duties of court reporter with those of any other employee of the court, does not clearly limit the compensation for combined positions to the amount allowable under subparagraph 753(e) as amended, our review of the derivation of the language of that subsection reveals that that limitation on compensation is in fact applicable to combined positions. The language of the applicable portion of subsection 753(a) is derived from the following language of public law 78-222, January 20, 1944, 58 stat. 5:

*** if the court and the judicial conference are of the opinion that in any district it is in the public interest that the duties of reporters should be combined with those of any other employee of the court, the judicial conference May authorize such a combination of positions and fix the salary therefor, as provided by subsection (C) hereof, any provision of law to the contrary notwithstanding.

Subsection (c), referenced in the quotation immediately above, contains a $6, 000 maximum upon the amount of compensation payable to court reporters and is the source of the language of subsection 753(e), quoted above, which, as amended, remained in effect until superseded by public law 91- 272, June 2, 1970, 84 stat. 298, 28 U.S.C. 133 note. That language appeared in substantially identical form at subsections 9aa) and 9ac) of title 28 of the U.S.C. Until that title was revised, codified and enacted into law by public law 80-773, June 25, 1948, 62 stat. 869. By that enactment, subsection 9aa) was redesignated subsection 753(a) and the words "for the performance of the duties combined" were substituted for "thereof, as provided by subsection (C) hereof, any provision of law to the contrary notwithstanding." Since it is well established that the effect of a codification statute is to leave the effected statute substantively unchanged, the language of subparagraph 753(e) as in effect prior to June 2, 1970, is to be construed in light of the particular language of the statute from which it is derived. Fourco glass co. v. Transmirra products corp., 353 u.S. 222, 227 (1957).

In light of the legislative history of section 753 it appears that prior to June 2, 1970, a court reporter whose position was combined with that of another employee of the court could have been paid no more than the maximum compensation payable under subsection 753(e). Since Mr. Barnes received compensation at the maximum allowable rate after 1964, we find no basis for payment to him of any additional amount as consideration for his performance of secretarial functions.

As a basis for his claim for a cost-of-living allowance in connection with his position with the district court of guam, Mr. Barnes states that it is his understanding that, with the exception of court reporters, all court employees in hawaii, alaska, the virgin islands and American samoa receive a cost-of-living allowance. He urges that the nonpayment of such an allowance to reporters in guam who serve in a dual capacity is discriminatory.

The Administrative Office of the United States courts has reported that the...

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