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1976/02/27 HR6184 Compensation of Referees in Bankruptcy
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1976/02/27 HR6184 Compensation of Referees in Bankruptcy
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The original documents are located in Box 40, folder "1976/02/27 HR6184 Compensation of Referees in Bankruptcy" of the White House Records Office: Legislation Case Files at the Gerald R. Ford Presidential Library. Copyright Notice The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United States of America his copyrights in all of his unpublished writings in National Archives collections. Works prepared by U.S. Government employees as part of their official duties are in the public domain. The copyrights to materials written by other individuals or organizations are presumed to remain with them. If you think any of the information displayed in the PDF is subject to a valid copyright claim, please contact the Gerald R. Ford Presidential Library. Exact duplicates within this folder were not digitized. Digitized from Box 40 of the White House Records Office Legislation Case Files at the Gerald R. Ford Presidential Library APPROVED 1976 $2/27/76 ACTION THE WHITE HOUSE WASHINGTON Last Day: February 28 February 23, 1976 Posted 2/27/76 MEMORANDUM FOR THE PRESIDENT Jo archives FROM: JIM CANNON SUBJECT: H.R. 6184 - Compensation 2/27/76 of Referees in Bankruptcy Attached for your consideration is H.R. 6184, sponsored by Representative Edwards, which repeals the authority of the Judicial Conference of the United States to fix the salaries of full-time referees in bankruptcy at a rate below the statutory maximum and increases the salary for these court officers to a maximum of $37,800. A detailed discussion of the bill is provided in OMB's enrolled bill report at Tab A. The Administrative Office of the U.S. Courts recommends disapproval of H.R. 6184. OMB, Max Friedersdorf, Counsel's Office (Lazarus) and I recommend approval of the enrolled bill. In addition, Max indicates that he has received calls in support of the bill from Senators Eastland, McClellan, Burdick and Hruska. RECOMMENDATION That you sign H.R. 6184 at Tab B. GERALD FORD OFFICE am EXECUTIVE OFFICE OF THE PRESIDENT UNITED OFFICE OF MANAGEMENT AND BUDGET STATE WASHINGTON, D.C. 20503 FEB 2 0 1976 MEMORANDUM FOR THE PRESIDENT Subject: Enrolled Bill H.R. 6184 - Compensation of referees in bankruptcy Sponsor - Rep. Edwards (D) California Last Day for Action February 28, 1976 - Saturday Purpose Increases the salary of full-time referees in bankruptcy to the maximum authorized by law and repeals the authority of the Judicial Conference to establish lower rates for these court officers. Agency Recommendations Office of Management and Budget Approval Civil Service Commission Approval Department of Justice No objection Administrative Office of the U. S. Courts Disapproval (Veto message attached) Discussion H.R. 6184 would repeal the existing authority of the Judicial Conference to fix the salary of full-time referees in bankruptcy at a rate below the statutory maximum for such positions. It would establish the current statutory maximum of $37,800 as the salary for these employees, subject to future adjustment under the procedures pre- scribed by law for executive, legislative, and judicial salaries. The bill would also provide a maximum annual salary rate of $18,900 for part-time referees in bankruptcy-- half that of full-time referees--but would continue to allow these salaries to be fixed by the Judicial Conference, based on numbers and types of cases closed, and other factors. a FORD GERALD 2 Based on the congressional committee reports and the views of the Administrative Office of the U. S. Courts, this enrolled bill appears to be the product of a seven-year controversy between the Congress and the Judicial Confer- ence about the salaries of full-time referees in bankruptcy. The executive branch was not asked to report, and took no position on this legislation, in the course of congressional consideration. Background Under present law, the maximum salary for full-time referees is set every four years under the procedures of the Federal Salary Act of 1967. Pursuant to that Act, the quadrennial Commission on Executive, Legislative and Judicial Salaries recommends salary adjustments for high-level Government positions to the President, who transmits his recommendations to the Congress. The rates proposed by the President are effective within 30 days unless either House disapproves. As a result of the enactment last year of P.L. 94-82, ref- erees' compensation is now also subject to annual automatic adjustment by operation of the "comparability" pay law, with the result that the maximum referee rate was increased from $36,000 to $37,800 in October 1975. Referees do not receive the maximum salary authorized by law, however, because of action by the Judicial Conference under the Bankruptcy Act. That Act authorizes the Judicial Confer- ence to set referee salaries at less than the statutory maximum to accord with individual variations in caseload and size of estates administered. This authority dates back to 1946, when referees were converted from a fee-basis to a salary system and there was significant variation in caseload among referees throughout the country. A further relevant background factor is that, under the Magistrates Act of 1968, the compensation of full-time U. S. magistrates is set at a rate not to exceed that for referees, subject to a ceiling of 75% of the salary of a District Court judge. The position of the Judicial Conference is that (1) referees should receive the same salary as U. S. Magistrates and (2) both of these groups should receive 75-80% of a district judge's salary. Accordingly, in recent years, the Judicial Conference has held the compensation for both referees and magistrates below the maximum. In 1969, the referee/magistrate rate established by the Conference was $30,000--75% of the 3 then District Court Judge rate of $40,000--instead of the $36,000 maximum. At present, the rate is ,500--about 80% of the judge's rate of $42,000--instead of $37,800 which the enrolled bill would mandate for referees. All full-time referees and magistrates are currently being paid the same salary rate. The major arguments advanced in support of H.R. 6184 in the congressional committee reports are: -- The action of the Judicial Conference in setting referee salaries below the maximum is a "studied rejection of congressional standards in the exercise of delegated power" which "more than warrants Congress' cancellation of the delegation and reassumption of the authority itself.' -- The need for delegation of the salary fixing power has been eliminated since the Conference has set a uniform salary for all referees, thereby implicitly recognizing that the original differences in caseloads no longer exist. -- The creation in 1967 of the quadrennial Commission procedures has obviated the need for the Conference to super- vise the salary levels of the bankruptcy referees. -- The increased judicial responsibilities of the bank- ruptcy referees and the increased case volume warrants implementation of the maximum salary authorization. The quality and effectiveness of the bankruptcy bench is being endangered by resignations based on "salary inequity." The major arguments advanced in opposition to H.R. 6184 by the Administrative Office of the U.S. Courts are: -- The increase in salaries of full-time referees required by the bill is not consistent with the internal alignment of salaries of court officials, as determined by the Judicial Conference at its October 1971 session and steadfastly adhered to since. -- The bill would place referees in a more favored position than magistrates, although the Conference regards the responsibilities of both groups as officers of the courts to be on an equal basis and meriting the same salary. -- Until there is an increase in the salary of district judges, to whom referees are subordinate, it would be a mistake to alter referee compensation by separate legislation. 4 Agency Recommendations The Administrative Office of the U. S. Courts, on behalf of the Judicial Conference, strongly recommends a veto of this bill. The Civil Service Commission recommends that the enrolled bill be approved, stating that it appears that the adminis- trative flexibility vested in the Judicial Conference is no longer needed and that "the issue here does not seem to us to be of sufficient importance to justify a veto." The Justice Department has no objection to approval. ********* We concur with the Civil Service Commission that this legis- lation does not warrant disapproval. The question of salary parity between referees in bankruptcy and magistrates does not appear to be at the heart of the issue; the same day that the Senate passed H.R. 6184, it also passed S. 2923, which provides that magistrates will receive the same compensation as referees. It appears, therefore, that the issue relates more directly to the effect of the enrolled bill in closing the gap between the salaries of referees and District Court judges, within the broader context of dissatisfaction with the salary levels of judges (and Government executives) generally--as evidenced by the current judges' suit for "back pay. The enrolled bill will not, in our view, materially affect this larger issue either favorably or adversely and, accord- ingly, we recommend its approval. Jamesm. Frey Assistant Director for Legislative Reference Enclosures UNITED STATE CIVIL SENCE UNITED STATES CIVIL SERVICE COMMISSION WASHINGTON, D.C. 20415 CHAIRMAN February 11, 1976 Honorable James T. Lynn Director Office of Management and Budget Attention: Assistant Director for Legislative Reference Dear Mr. Lynn: This is in reply to your request for the views and recommendations of the Civil Service Commission on H.R. 6184, an enrolled bill "To amend section 40 of the Bankruptcy Act to fix the salaries of referees in bankruptcy. " The purpose of this enrolled bill is to remove from the Judicial Conference of the United States the authority to fix the salaries of full-time referees in bankruptcy at a rate below the statutory maximum, and thereby to require that all full-time referees be paid at the statutory maximum, now $37,800. Part-time referees in bankruptcy would continue to have their pay fixed by the Judicial Conference, at rates not to exceed one-half of the rate for full-time referees. A retired referee assigned to serve on a full-time basis in the territory of a part-time referee would be paid at the rate of full-time service. For nearly thirty years, the Judicial Conference has been empowered to fix the pay of full-time referees in bankruptcy, in accordance with certain criteria in the Bankruptcy Act relating to caseload, and sub- ject to a statutory maximum pay rate. Since 1969, however, the Judicial Conference has chosen to exercise this authority by paying all full-time referees at the same rate, substantially below the statutory maximum. At present, for example, the full-time referees are all paid $33,500, although the statutory maximum for their positions is $37,800. We under- stand that the Judicial Conference has apparently chosen to keep the pay rate for full-time referees below the maximum in order to maintain an internal alignment pattern the conference believes to be appropriate between the salaries of referees and other officers and employees of the judicial branch, including district judges. 2 Since the Judicial Conference, by deciding to pay all full-time referees at the same rate, has recognized that there are no longer such variations in the workload of the different full-time referees as to require differ- ent salaries, it appears that the administrative flexibility vested in the Judicial Conference by the 1946 Referees' Salary Act is no longer needed. Therefore, the practical effect of the enrolled bill will be to supersede the Judicial Conference's determination of what differentials should exist between the salaries of full-time referees and other officers and employees of the judicial branch. Although we understand from the Administrative Office of the U.S. Courts that the judicial branch has been opposed to this bill, because it would interfere with the internal alignment of judicial salaries, the issue here does not seem to us to be of sufficient importance to justify a veto. Therefore, the Civil Service Commission recommends that the President sign enrolled bill H.R. 6184 into law. By direction of the Commission: Sincerely yours, Robert Hampton Chairman ASSISTANT ATTORNEY GENERAL LEGISLATIVE AFFAIRS Department of Justice Washington, D.C. 20530 February 10, 1976 Honorable James T. Lynn Director, Office of Management and Budget Washington, D.C. 20503 Dear Mr. Lynn: In compliance with your request, I have examined a facsimile of the enrolled bill H.R. 6184, "To amend section 40 of the Bankruptcy Act to fix the salaries of referees in bankruptcy." The enrolled bill would amend the Bankruptcy Act to set the salary of a full-time referee in bankruptcy at $37,800 per annum, subject to adjustment in accord- ance with the Federal Salary Act of 1967 and section 461 of title 28 of the United States Code. Annual salaries for part-time referees in bankruptcy would be limited to $18,900 and subject to the same adjustments applicable to full-time referees as well as to adjust- ment within limits by the Judicial Conference. The Department of Justice has no objection to Executive approval of this bill. Sincerely, alichael lle ahlmann Michael M. Uhlmann Assistant Attorney General AMERICAN REVOLUTION 1776-1978 ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS SUPREME COURT BUILDING WASHINGTON, D.C. 20544 ROWLAND F. KIRKS DIRECTOR February 9, 1976 WILLIAM E. FOLEY DEPUTY DIRECTOR Mr. James M. Frey Assistant Director for Legislative Reference Office of Management and Budget Washington, D. C. 20503 Re: Enrolled Bill H.R. 6184 Dear Mr. Frey: This will refer to enrolled bill request on H. R. 6184, dated February 6, 1976. The proposed legislation has been considered and strongly disapproved by the Judicial Conference of the United States and, accordingly, Executive dis- approval is strongly recommended on behalf of the Judicial Conference. Attached hereto is a summary of the position of the Judicial Conference. Sincerely, (iii William Deputy Director E. Foley Lazy PROPOSED LEGISLATION TO INCREASE THE SALARIES OF FULL-TIME REFEREES IN BANKRUPTCY BY STATUTE At its September 1975 session, the Judicial Conference of the United States strongly disapproved S. 582, a bill similar to H.R. 6184, which would amend the Bankruptcy Act to fix the salaries of full-time referees by statute at $36,000 per annum (now $37,800). The Judicial Conference took the position that such legislation was not consistent with the alignment of salaries of court officials as determined by the Judicial Conference at its October 1971 session. The alignment of salaries adopted by the Judicial Conference in 1971 for ungraded officers of the court is as follows: (1) Circuit Court Executive - 80 to 85% of a circuit judge's salary (but not to exceed 90% of a district judge's salary). (2) Full-time Referee in Bankruptcy - 75 to 80% of a district judge's salary. (3) Full-time United States Magistrate - 75-80% - of a district judge's salary. (4) Clerks of Court - At least 50 but no more than 75% of a district judge's salary, the salaries to be proportioned as follows: -2- (a) Clerk, Courts of Appeals and Court of Customs and Patent Appeals - 70-75% (b) Clerk, Large District and Court of Claims, 70-75% (c) Clerk, Medium District - 65-70% (d) Clerk, Small District, including Territorial Court - 50-60% Since that time the Conference has steadfastly adhered to the necessity of maintaining this align- ment of salaries. As recently as February 3, 1976, the Committee on Court Administration voted against approval of an increase in the salaries of the clerks of court which would bring the salary scale out of alignment insofar as clerks are concerned. In addition, the Conference has consistently taken the position that the salaries of full-time referees in bankruptcy and the salaries of full-time United States magistrates shall be on a parity. The salaries of United States magistrates are fixed by statute at $30,000 per year, although the magistrates did benefit by the five percent cost-of-living increase adopted in the fall of 1975. -3- The views of the Judicial Conference on the Senate bill, S. 582, were communicated to the Senate Committee in response to its request. The House Committee did not solicit the views of the Judicial Conference. In view of the position steadfastly maintained by the Judicial Conference, Executive disapproval of the proposed enrolled bill is strongly recommended. ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS SUPREME COURT BUILDING WASHINGTON, D.C. 20544 ROWLAND F. KIRKS DIRECTOR February 10, 1976 WILLIAM E. FOLEY DEPUTY DIRECTOR Mr. James M. Frey Assistant Director for Legislative Reference Office of Management and Budget Washington, D. C. 20503 Re: Enrolled Bill H.R. 6184 Dear Mr. Frey: In accordance with the request of your office, I am enclosing herewith a proposed draft of a veto message relating to enrolled bill H.R. 6184. Sincerely, William Leving Deputy Director E. Enclosure PROPOSED VETO MESSAGE I am returning herewith without approval H.R. 6184, a bill to increase the salaries of full-time referees in bankruptcy. Referees in bankruptcy are an integral part of the federal judicial system. Their salaries have through the years been set by the Judicial Conference of the United States in accordance with the provisions of the Bankruptcy Act. Referees in bankruptcy are ungraded officers of the court, as are circuit court executives, full-time United States magistrates and clerks of court. The Judicial Conference of the United States in 1971 provided that the salaries of full-time referees in bankruptcy and full- time United States magistrates should be on a parity and should be between seventy-five and eighty percent of the salary of a United States district judge. The proposed legislation would have the effect of taking from the Judicial Conference the authority to fix the salaries of the referees in bankruptcy and would place them in a more favored position insofar as the United States magistrates are concerned though the Judicial Conference of the United States regards the responsibilities of both of these officers of the court to be on an equal basis and meriting the same salary. -2- Until such time as there is a change in the salary base of the United States district judge, therefore, I believe it is a mistake by separate legislation to make any alteration in the salaries of these court officers, especially in view of the strong opposition thereto by the Judicial Conference of the United States. EXECUTIVE OFFICE OF THE PRESIDENT OFFICE OF MANAGEMENT AND BUDGET WASHINGTON, D.C. 20503 2-20-76.m. FEB 20 1976 MEMORANDUM FOR THE PRESIDENT Subject: Enrolled Bill H.R. 6184 - Compensation of referees in bankruptcy Sponsor - Rep. Edwards (D) California Last Day for Action February 28, 1976 - Saturday Purpose Increases the salary of full-time referees in bankruptcy to the maximum authorized by law and repeals the authority of the Judicial Conference to establish lower rates for these court officers. Agency Recommendations Office of Management and Budget Approval Civil Service Commission Approval Department of Justice No objection Administrative Office of the U. S. Courts Disapproval (Veto message attached) Discussion H.R. 6184 would repeal the existing authority of the Judicial Conference to fix the salary of full-time referees in bankruptcy at a rate below the statutory maximum for such positions. It would establish the current statutory maximum of $37,800 as the salary for these employees, subject to future adjustment under the procedures pre- scribed by law for executive, legislative, and judicial salaries. The bill would also provide a maximum annual salary rate of $18,900 for part-time referees in bankruptcy-- half that of full-time referees--but would continue to allow these salaries to be fixed by the Judicial Conference, based on numbers and types of cases closed, and other factors. THE WHITE HOUSE ACTION MEMORANDUM WASHINGTON LOG NO.: Date: Time: February 2B 700pm FOR ACTION: Dick Parsons oh CC (for information): Jack Marsh Max Friedersdorf Ken Lazarus the comments Jim Cavanaugh FROM THE STAFF SECRETARY DUE: Date: February 23 Time: 300pm SUBJECT: H.R. 6184 - Compensation of referees in Bankruptcy ACTION REQUESTED: For Necessary Action For Your Recommendations Prepare Agenda and Brief Draft Reply x For Your Comments Draft Remarks REMARKS: Please return to Judy Johnston, Ground Floor West Wing / FORD PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED. If you have any questions or if you anticipate a delay in submitting the required material, please K. R. COLE, JR. telephone the Staff Secretary immediately. For the President THE WHITE HOUSE ACTION MEMORANDUM WASHINGTON LOG NO.: Date: February 20 Time: 700pm FOR ACTION: Dick Parsons CC (for information): Jack Marsh Max Friedersdorf Jim Cavanaugh Ken Lazarus FROM THE STAFF SECRETARY DUE: Date: February 23 Time: 300pm SUBJECT: H.R. 6184 - Compensation of referees in Bankruptcy ACTION REQUESTED: For Necessary Action For Your Recommendations Prepare Agenda and Brief Draft Reply X For Your Comments Draft Remarks REMARKS: I recommend approval. RDP Please return to Judy Johnston, Ground Floor West Wing PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED. If you have any questions or if you anticipate a delay in submitting the required material, please telephone the Staff Secretary immediately. yor THE WHITE HOUSE WASHINGTON February 23, 1976 MEMORANDUM FOR: JIM CAVANAUGH FROM: MAX L. FRIEDERSDORF m.b. SUBJECT: H.R. 6184 - Compensation of referees in Bankruptcy The Office of Legislative Affairs concurs with the agencies that the bill be signed. Attachments THE WHITE HOUSE ACTrON MEMORANDUM WASHINGTON LOG NO.: Date: February 20 Time: 700pm FOR ACTION: Dick Parsons CC (for information): Jack Marsh Max Friedersdorf Jim Cavanaugh Ken Lazarus FROM THE STAFF SECRETARY DUE: Date: February 23 Time: 300pm SUBJECT: H.R. 6184 - Compensation of referees in Bankruptcy ACTION REQUESTED: For Necessary Action For Your Recommendations Prepare Agenda and Brief Draft Reply X For Your Comments Draft Remarks REMARKS: Please return to Judy Johnston, Ground Floor West Wing Recommend approval on the merits and alsowish to note that I have received a number of phone calls expressing support for H. R. 6184 by Senators Eastland, McClellan, Burdick and Hruska. Ken Lazarus 2/23/76 PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED. If you have any questions or if you anticipate a delay in submitting the required material, please telephone the Staff Secretary immediately. For Calendar No. 600 94TH CONGRESS SENATE REPORT 2d Session No. 94-626 REVISION OF THE SALARY FIXING PROCEDURE FOR BANKRUPTCY JUDGES FEBRUARY 3, 1976.-Ordered to be printed Mr: BURDICK, from the Committee on the Judiciary, submitted the following REPORT [To accompany S. 582] The Committee on the Judiciary, to which was referred the bill (S. 582) to improve judicial machinery by amending the procedure for fixing the salaries of bankruptcy judges and to implement the Congressional salary authorization of 1969 and for other purposes, having considered the same, reports favorably thereon and recom- mends that the bill as amended, do pass. AMENDMENT The Committee proposes amendments to the bill as follows: On page 1, line 10, after the words (81 Stat. 643) delete the period and insert the words: and Sec. 461 of Title 28, United States Code, Public Law 94-82, August 7, 1975, (89 Stat. 419). PURPOSE OF THE AMENDMENT S. 582 provides that the salary of Bankruptcy Judges shall be sub- ject to adjustment pursuant to Public Law 90-206, title II, De- cember 16, 1967, 81 Stat. 643. Recent congressional action authorized a cost of living increase for referees in bankruptcy. The purpose of this amendment is to specifically provide that the salary of each full-time referee in bankruptcy shall be subject to ad- justment as provided by Congress in Public Law 94-82, August 9, 1975. The salary of the full-time bankruptcy judge shall be $37,800 and the maximum salary of the part-time bankruptcy judge shall be $18,400. 57-010 3 2 approved by the Judicial Conference for most full-time bankruptcy PURPOSE OF THE BILL judges, effective October 1, 1963.³ The statutory maximum of $22,500 The purpose of the Bill is to amend the salary setting procedure as fixed by Public Law 88-426 in 1964 was approved for the over- (11 U.S.C. 40) of the Bankruptcy Act. The bill would restore to the whelming majority of referees by the Judicial Conference on Septem- Congress the sole and exclusive authority to fix salaries of full-time ber 23-24, 1964 and was made retroactive to June 30, 1964.4 In 1969 two decisions of the Judicial Conference significantly bankruptcy judges. The bill would implement the Congressional salary authorization of 1969. altered the salary setting authority authorized by Congress in 40a of the Bankruptcy Act. The Judicial Conference adopted the policy that STATEMENT all full-time bankruptcy judges should be paid at the same rate.5 The Conference report dated November 1, 1969, also approved elimination This bill restores to the Congress the sole and exclusive authority of the criteria originally set by Congress in Section 40a.6 Thus, the to fix salaries of full-time bankruptcy judges and it implements the Judicial Conference decided to ignore the very statutory standards salary authorization made by Congress in 1969. It does not affect the which accompanied the grant of salary fixing authority. authority of the Judicial Conference to fix salaries of part-time bank- Second, the Judicial Conference went on record as favoring salary ruptcy judges within the maximum set by Congress. parity between bankruptcy judges and U.S. magistrates. The policy Under current law, the salary of a full or part-time bankruptcy decision also served to set the maximum salary which could be paid judge is determined in four steps. First, the Commission on Execu- bankruptcy judges at 75-80 percent of the salary authorized Federal tive, Legislative, and Judicial Salaries forwards suggested salary levels district judges. for various judicial officers and employees to the President. The Presi- The result of these policy changes was the refusal, for the first time, dent with such changes as he deems appropriation, transmits the sug- to permit any bankruptcy judge to receive the maximum salary gested salaries to the Congress and the salaries thus recommended authorized by section 40a. In 1968 the newly created Postal Revenue become effective unless Congress takes contrary action. Congressional and Federal Salary Commission recommended that full-time bank- approval is final as to all recommended salaries except full and part- ruptcy judges reecive $40,000. The President reduced this recom- time bankruptcy judges. The Judicial Conference, using criteria pre- mended salary to $36,000 and Congress, taking no contrary action, scribed by Congress in section 40a of the Bankruptcy Act is given approved his recommendation. The Judicial Conference, acting on its the authority to determine the salary of individual bankruptcy judges new policy, ignored the congressional salary maximum by applying within the statutory maximum. criteria nowhere authorized by statute and limited all full-time bank- ruptcy judges to a salary of $30,000. HISTORY There are three reasons for enacting this legislation which will restore to the Congress the sole and exclusive authority to fix salaries The delegation of salary fixing authority for bankruptcy judges was of full-time bankruptcy judges and to implement the salary author- enacted by Congress as a solution to a specific dilemma. Prior to 1946 ization made by Congress in 1969. They are: bankruptcy judges were compensated by the universally deplored fee (1) the Judicial Conference rejection of the criteria estab- system. Congress, while decrying the fee system, determined that it lished legislatively by Congress in 40a of the Bankruptcy Act has would not be appropriate to grant a uniform salary level for bank- eliminated the reason for the original congressional delegation ruptcy judges as, in 1946, unlike today, there was a wide disparity in of power; caseloads and geographical boundaries for the various bankruptcy (2) the Congressional authorizations of a salary of $36,000 is courts. It was obviously impractical for Congress itself to monitor the even more warranted by circumstances today than in 1969; bankruptcy system on a continual basis. The only practical alternative (3) the impact of the denial of the maximum salary author- was to delegate salary fixing authority to the Judicial Conference ization has threatened the quality of the bankruptcy bench at the while, at the same time, limiting this authority by the imposition of most crucial period in its history. specific statutory standards and maxima which would insure that the implementation of this power would be within Congressional limits. NEED FOR DELEGATION OF SALARY FIXING POWER HAS BEEN Historically, the Judicial Conference invariably and without excep- ELIMINATED tion authorized most full-time bankruptcy judges to receive the maxi- mum salary permitted by section 40a. The Judicial Conference in adopting the single salary policy which The first statutory ceiling under the Referees' Salary Act, effective would be determined by criteria other than that prescribed by Con- July 1, 1947, was immediately allowed to become effective as to all but gress has eliminated the justification or purpose for the Congressional 16 full-time bankruptcy judges.¹ The $12,500 maximum authorized by the Act of July 7, 1952 was allowed to the bulk of full-time bankruptcy 3 Report of Proceedings of the Judicial Conference of the U.S. Sept. 19-20, 1946, at 18 judges by Judicial Conference action in the fall of 1952.2 The maxi- (Administrative Office of the U.S. Courts. 1956). 4 Report of Proceedings of Judicial Conference of the U.S. Sept. 23-24, 1964 at 71 mum $15,000 salary authorized by the act of May 10, 1956 was (Administrative Office of the U.S. Courts, 1964). 5 Report of Proceedings of the Judicial Conference of the U.S. Oct. 31-Nov. 1, 1969, at 76 (Administrative Office of the U.S. Courts, 1969). 1 22 Ref. J. 25 (1948). 6 Ibid. % 28 Ref. J. S (1954). S.R. 626 S.R. 626 5 4 filed which represents an increase of 18.6 percent over the prior fiscal year. The following table illustrates the number of business and non- grant of authority in 1946. The creation of the Commission on Execu- business bankruptcies filed since 1969. tive, Legislative, and Judicial Salaries to conduct quadrennial reviews of the salary rates of designated federal judicial officers, including bankruptcy judges gives Congress the necessary capability to recom- Fiscal year- Numerical Percentage mend the appropriate rates and relationships for federal bankruptcy 1975 (7 mos) 1974 (7 mos) increase increase judges' salaries. The Commission on Executive, Legislative and Ju- Voluntary straight 111,025 85,253 +25.772 +30.2 dicial Salaries has in fact twice recommended that full-time bank- 780 542 +238 +43.9 Involuntary straight ruptcy judges receive a uniform salary of $36,000. These recommenda- Chapter IX 1 1 Chapter X 123 63 +60 +95.2 tions were made in 1969 and 1973. 1,875 1,162 +713 +61.4 Chapter XI 142 74 +68 +91.9 Judge Cyr in his opening statement at the hearings before the Sub- Chanter XII Chanter XIII 23,976 16,268 +7,708 +47.4 committee on Improvements in Judicial Machinery on May 1, 1975, Section 77 0 15 -15 questioned whether the Judicial Conference was equipped to exercise Total 137,922 103,378 +34,544 +33.4 its salary fixing authority for bankruptcy judges. He stated: The Conference generally meets but two days in March Number of Percentage of and two days in October of each year. It is comprised of 1st 9 mo fiscal year filings Increase increase twenty-five circuit and district judges who are concerned primarily with the administrative and judicial problems con- 184,655 48, 058 35.2 1975 136,597 fronted in the effort to cope with the expanding caseloads of 1974 their own busy courts. The Conference functions through a number of committees, including its Bankruptcy Committee, whose decisions are invariably adopted by the Conference Non- Percent Percent Total business of total Business of total filings itself. Fiscal year Bankruptcy judges have never been permitted to appear 1969 169,500 91. 7 15,430 8.3 184,930 either before the Conference or its Bankruptcy Committee. 1970 178,202 91. 7 16,197 8.3 194,399 1971 182,249 90.5 19,103 9.5 201,352 Of course, no bankruptey judge has been allowed member- 1972 164,737 90.1 18,132 9.9 182,869 1973 155,707 89.9 17,490 10.1 173,197 ship on the Bankruptcy Committee * * * nor in any advisory 1974 168,767 89.1 20,746 10.9- 189,513 capacity either to the Conference or its Bankruptcy Committee. In summary, as the Judicial Conference has ignored the criteria When the Salary Commission recommended a salary level of $36,000 established by Congress in setting bankruptcy judges' salaries, the in 1969 the total business filings numbered 15,430. In 1974, there were reason for the original delegation of power has been eliminated. The 20,746 filings representing an increase of 5,136 filings or 39.7 percent. creation of the Commission on Executive, Legislative and Judicial In addition, the increasingly heavy caseload which brings more and Salares' gives Congress the requisite assistance necessary to exercise more complex issues before the bankruptcy court falls on a relatively the salary-fixing power. No further delegation of this authority is static number of bankruptcy judges. As the following table indicates, the number of full-time bankruptcy judges serving as of March 1975 necessary. has increased by seven with a corresponding decrease of five in the JUSTIFICATION FOR IMPLEMENTING 1969 SALARY AUTHORIZATION number of part-time bankruptcy judges serving on the bench. A. INCREASED VOLUME OF BANKRUPTCY FILINGS Number Number full-time part-time bankruptcy bankruptcy In the years from 1948 to 1974 the number of filings in the bank- Date judges judges Total ruptcy courts climbed from 18,510 to 189,513. Since fiscal 1974, the number of bankruptcy cases has continued to grow at an explosive April 1969 183 35 218 190 30 220 rate. Testimony presented at the May 1 hearings indicates that during March 1975 the first 9 months of fiscal 1975, 184.655 bankruptcy filings were re- ported as compared to 136,597 in the first 9 months of fiscal 1974. This Thus, the individual bankruptcy judge must, through his own represents an increase of 48,058 filings or 35.2 percent as can be seen increased workload, cushion the ever heavier number of bankruptcy in the following tables. The increase in the number of bankruptcy filings does not indicate case filings. the full measure of the increased strain on the resources of the bank- ruptcy courts. In fiscal year 1974, 20,746 business bankruptcies were S.R. 626 S.R. 626 6 7 B. THE INCREASED JUDICIAL RESPONSIBILITY OF THE BANKRUPTCY JUDGE ings; New York-New Jersey-26 filings; Brooklyn, N.Y.-27 filings; The bankruptcy judge is in reality a trial judge of the bankruptcy Westbury, N.Y.-20 filings; Philadelphia, Pa.-46 filings; San Juan, Puerto Rico-73 filings; Memphis, Tenn.-15 filings; San Antonio, court.8 This is not a new concept by any means. With the passage of Public Law 91-467 the so-called "Dischargeability Bill," and the adop- Tex.-21 filings; Roanoke, Va.-16 filings; and Milwaukee, Wis.-21 tion of the Rules of Bankruptcy Procedure, the judicial responsibil- filings. Thus, there are 505 additional filings just in those limited areas ities of bankruptcy judges have been greatly expanded, vesting the which due to the incomplete reporting in this fiscal year are not in- cluded in the above data. bankruptcy court and specifically the bankruptcy judge with juris- diction to determine the dischargeability of debts, and render judg- IMPACT OF THE DENIAL To IMPLEMENT CONGRESSIONAL SALARY ments thereon,10 to conduct jury trials, to determine and punish for AUTUHORIZATION contempt and to issue writs of habeas corpus.11 As Judge Conrad Cyr testified at the May 1st, hearings: The refusal of the Judicial Conference to implement the maximum The jurisdictional responsibilities of bankruptcy judges salary authorized by Congress of $36,000 has had an economic impact embrace a wide gamut of cases. Their cases range from on the bankruptcy bench which is severe and threatens to become ir- exceedingly large and complicated multiplaintiff and multi- revocable. Since April, 1969 when the salary of fulltime bankruptcy defendant adversary proceedings involving vast sums of judges was set by the Judicial Conference at a level of $30,000, 20 money and intricate interpretations of the appropriate inter- percent below the maximum authorized by Congress, the purchasing relationships of the complex provisions of the Bankruptcy Act power of that salary has eroded to $17,400 which is 23 percent below with those of State and Federal commercial, tax, constitu- the $22,500 the bankruptcy judge was receiving in 1965. Furthermore, tional and other laws, to the relatively simple, but no less even though corrective action were to be taken at once to restore the important, consumer cases wherein the rights of ordinary salaries to the statutory maximum, more than $30,000 will have been citizens to be relieved from the burdens of unmanageable irretrievably lost by every full-time bankruptcy judge in the country, indebtedness are the critical issues presented. due to the 6-year refusal of the Judicial Conference to permit imple- The increased jurisdictional responsibilities of the bankruptcy mentation of the $36,000 salary authorized by Congress. Likewise, im- judges, coupled with the increase in bankruptcy filings since 1969 have mediate congressional action in returning these salaries to the statu- given the bankruptcy courts a truly staggering caseload, both in tory maximum historically allowed would at best give bankruptcy regard to the number of filings and the complexity of legal issues pre- judges approximately the same purchasing power enjoyed in 1968. sented by these filings. A random sampling of bankruptcy judges But the harsh erosive effects alone do not indicate the full brunt of resulted in reports from 56 of the total 190 full-time and 31 part-time the economic impact of the Judicial Conference action on the bank- bankruptcy judges which are authorized for the 92 judicial districts. ruptcy judges. As the Salary Commission itself expressly stated: The matter of retirement benefits ought to be considered in any comparative salary study. Number of Number of Dollar amount Dollar amount Type of case cases creditors of assets of liabilities A compulsory contribution of 7 percent of the bankruptcy judge's gross annual salary is required to provide the relatively meagre Civil Chapter 10 80 110,882 $973,261,000 $861, 449, 000 Chapter 11 ,569 593, 102 3,978,686,000 4,683,750,000 Service retirement benefits available to him,12 whereas district judges Chapter 12 73 9,024 140,165,000 93,884,000 receive full salary upon retirement without having made any financial Total 1,722 713,008 5,092,112,000 5, 639, 083, 000 contribution whatever. Even if section 40a of the Bankruptcy Act did authorize the Judicial Conference to set the salaries of bankruptcy judges on the basis of a comparison with district judges salaries, it As the data reflects, approximately one-third of the bankruptcy would be patently unrealistic and unfair to ignore that each full-time judges in the country are handling 722 business reorganization cases involving 713,000 creditors with dollar assets of over $5 billion bankruptcy judge must now contribute more than $2,200 each year toward his retirement fund. and dollar amounts of liabilities extending to almost $6 billion. Sig- nificantly, these statistics do not include many of the heavy chapter XI The effect of the 6-year salary freeze imposed by the Judicial Con- areas. For example, the following localities are not included in the ference has seriously endangered the quality and effectiveness of the bankruptcy bench. first 7 months of fiscal 1975 calculations: Tucson, Ariz.-13 filings; The latest records of the Bankruptcy Division of the Administra- Eureka, Calif.-13 filings; San Francisco, Calif.-17 filings; Los tive Office of the U.S. Courts indicates that in the past 51/2 years Angeles, Calif.-134 filings; Tallahassee, Fla.-12 filings; Baltimore, 14 bankruptcy judges have resigned giving salary inequity as the Md.-13 filings; Grand Rapids, Mich.-10.filings; Nebraska- 19 fil- reason for their resignation. Two such resignations occurred in 1970, 8 20 Ref. J. 105 (1946). none in 1971, three in 1972, two in 1973, five in 1974, and four through 9 10 Ref. J. 48, 52 (1936). 10 Public Law 91-467, §§ 1 and 8 (Oct. 19. 1970). 12 Report of Proceedings of the Judicial Conference of the United States, Sept. 17 and 18, 11 See, e.g. Rules (a) (3), 810, 913 and 920(a) of the Rules of Bankruptcy Procedure. 1963, at 85. (Administrative Office of the U.S. Courts, 1963). S.R. 626 S.R. 626 8 the first half of 1975. The following listing gives the name and loca- tion of bankruptcy judges who have resigned since 1970 because the 9 authorization. Judicial Conference refused to implement the congressional salary Congress has directed. For 6 years, in disregard of the criteria June 30, 1975 John J. Dillenschneider, Columbus, Ohio (Return provided by Congress, the Conference has substituted its own to private practice). salary policy. The effect is to deny all bankruptcy judges the practice). June 30, 1975 Joseph Patchan, Cleveland, Ohio (Return to private full $36,000 figure authorized by Congress in 1969. Thus, the only hope for many sorely pressed to remain in this bench June 25, 1975 Dudley H. Bower, Savannah, Georgia (Return to is in Congress, via (the) amendment to Section 40 of the private practice). Bankruptcy Act. Unless Congress returns to itself the exclu- practice). June 1, 1975 James E. Yacos, Miami, Florida (Return to private sive power to fix bankruptcy judges' salaries in whatever relation it deems proper to other judicial officers, I believe December 31, 1974: Raymond J. Pellman, Cincinnati, Ohio (Retire- the already high rate of resignations from the bankruptcy ment compensation). bench will increase substantially. December 31, 1974: Authur Moller, Houston, Texas (Return to With 1975 already well on its way to becoming the year with the private practice). largest number of filings in history, the committee deems it altogether December 1, 1974 Stephan J. Covey, Peoria, Illinois (Assume State imperative to rectify the salary inequities experienced by bankruptcy judgeship). judges over the past several years. November 7, 1974: Edward A. Quinnell, Marquette, Michigan (Assume State judgeship). ADMINISTRATIVE OFFICE OF THE U.S. COURTS, October 5, 1974: Daniel Cowans, San Jose, California (Return to Washington, D.C., April 25, 1975. private practice). Hon. QUENTIN N. BURDICK, November 16, 1973 : Robert P. Fullerton, Denver, Colorado (Assume Committee on the Judiciary, U.S. Senate, State judgeship). Washington, D.C. September 1, 1973 Jerold L. Strashein, Omaha, Nebraska (Return DEAR SENATOR BURDICK This is in response to your letter of April to private practice). 22, 1975, extending the opportunity to testify or submit a statement on July 31, 1972 William Corrigan, St. Louis, Missouri (Assume State behalf of the Administrative Office at the hearing to be held on May 1, judgeship). 1975, on S. 582, a bill to amend Section 40 of the Bankruptcy Act. June 15, 1972 Robert Ervin, Tallahassee, Florida (Return to private As you know, the Judicial Conference of the United States and this practice). office have urged the Congress to enact legislation to increase the com- February 15, 1972 Charles T. Hamlin, Fresno, California (Assume pensation of all federal judicial officers. While we, of course, favor an State judgeship). increase in the salaries of referees in bankruptcy, we. believe it would June 30, 1970: Edward J. Houston, Miami, Florida (Return to be unfortunate to increase the salaries of one segment of the federal private practice). judiciary without doing SO for the judges of the United States Courts While the 3-year period 1970 thru 1972 saw four resignations, a of Appeals, the United States District Courts, and the United States period of 2 and one-half years, 1973 thru June 30, 1975 has seen the Magistrates. Furthermore, the Judicial Conference of the United number of resignations nearly triple to 11. States is on record as favoring parity in the salaries of magistrates Among those who resigned are three former law professors, two and referees in bankruptcy and the provisions of S. 582 are limited former State court judges, and one of the authors of the prestigious solely to referees in bankruptcy. Collier on Bankruptcy. Other bankruptcy judges are on the verge of The foregoing represents the position both of the Judicial Confer- returning to State courts or private practice in the absence of prompt ence and of the Administrative Office of the United States Courts and relief from their economic problems. Not surprisingly, the Bankruptcy is submitted in response to your letter. In the circumstances I do not Division of the Administrative Office of the U.S. Courts advises that believe it will be necessary for any further testimony to be submitted recruitment is already becoming markedly more difficult because quali- on behalf of either the Conference or the Administrative Office. fied attorneys are apprehensive over the existing inadequacies and the Sincerely, long judges. range prospects for salary relief and security for bankruptcy WILLIAM E. FOLEY, Deputy Director. In hearings before the Subcommittee on Improvements in Judicial COST Machinery, Judge Joseph Patchan, Northern District of Ohio, urged that Congress take corrective action. Judge Patchan, who had recently The anticipated cost of this legislation is $1,218,545. This figure resigned his judgeship testified: represents the projected increase of $6,150 per year to the maximum The more long range reason for my departure is the con- salary of $37,800 for 190 full-time bankruptcy judges and the maxi- tinuing failure of the Judicial Conference to fix salaries as mum salary of $18,900 for 30 part-time bankruptcy judges. S.R. 626 S.R. 626 10 11 SECTION-BY-SECTION ANALYSIS [(d) (2) Any referee who has retired or been retired under the Section (a)-This section amends subdivisions a and b of section 40 provisions of paragraph (1) of this subdivision may, if called upon of the Bankruptcy Act. by a judge of a court or bankruptcy, perform such duties of a referee, Subdivision a (1) is amended to provide that all full-time referees conciliation commissioner, or special master under this title, within in bankruptcy shall receive a salary of $36,000 per annum, subject to the jurisdiction of the court, as he may be able and willing to under- take. The retired referee shall receive as compensation for his services, adjustment pursuant to Public Law 90-206, title II, December 16, 1967 (81 Stat. 643). The salary authorization is final and would not be either full or part time, the salary authorized for the referee serving subject to adjustment by the Judicial Conference. the territory to which the retired referee is assigned. However, the rate Subdivision a (2) provides a maximum salary of $18,000 for part- of compensation of a retired referee assigned to serve on a full-time basis in the territory of a part-time referee shall be the minimum time referees in bankruptcy subject to gradation by the Judicial Con- rate established by the Judicial Conference of the United States for ference based on average number and types of, and the average amount full-time service. Salaries authorized under this paragraph shall be of gross assets realized from, cases closed and pending in the terri- tory the referee is to serve, during the last preceding period of 10 years subject to the provisions of section 8344 (a) of Title 5.] and to such other factors as may be material. (a) The compensation of referees in bankruptcy shall be as follows: Section d(2) is amended to provide that compensation paid retired (1) Each full-time referee in bankruptcy shall receive a salary referees who have been recalled to perform specified duties shall be of $36,000 per annum, subject to adjustment pursuant to Public Law 90-206, Title II, December 16, 1967 (81 Stat. 643) and Sec. based on the salary paid the referee serving the territory except if the referee is assigned to serve on a full-time basis in the territory of a 461 of Title 28, United States Code, Public Law 94-82, August 7, part-time referee he shall receive the rate for full-time service. 1975, (89 Stat. 419). (2) Each part-time referee in bankruptcy shall receive a salary CHANGES IN EXISTING LAW of not more than $18,000 per annum, subject to adjustment pur- suant to Public Law 90-206, title II, December 16, 1967 (81 Stat. In compliance with subsection (4) of rule XXXIX of the Standing 643), and subject to further adjustment by the conference, in the Rules of the Senate, changes in existing law made by the bill as light of recommendations of the councils, made after advising reported are shown as follows: with the district judges of their respective circuits, and the Direc- tor. In fixing the amount of the salary to be paid to a part-time SECTION 40 OF THE BANKRUPTCY ACT referee, consideration shall be given to the average number and types of, and the average amount of gross assets realized from, [(a) Referees shall receive as full compensation for their services cases closed and pending in the territory which the part-time salaries to be fixed by the conference, in the light of the recommenda- referee is to serve, during the last preceding period of ten years, tions of the councils, made after advising with the district judge of and to such other factors as may be material. their respective circuits, and of the Director, at rates not more than (3) Disbursement of salaries of referees shall be made monthly $36,000 per annum for full-time referees, and not more than $18,000 by or pursuant to order of the Director. per annum for part-time referees. In fixing the amount of salary to (b) The conference, in light of the recommendations of the councils, be paid to a referee, consideration shall be given to the average number made after advising with the district judges of their respective cir- and the types of, and the average amount of gross assets realized from, cuits, and of the Director, may increase or decrease the salary of any cases closed and pending in the territory which the referee is to serve, part-time referee, within the limit prescribed in subdivision a (2) of during the last preceding period of ten years, and to such other factors this section, if there has been a material increase or decrease in the as may be material. Disbursement of such salaries shall be made volume of business or other change in the factors which may be con- monthly by or pursuant to the order of the Director." sidered material in fixing salaries. [(b) The conference, in the light of the recommendations of the councils, made after advising with the district judges of their respec- tive circuits, and of the Director, may increase or decrease any salary, (d) (2) Any referee who has retired or been retired under the pro- visions of paragraph (1) of this subdivision may, if called upon by within the limits prescribed in subdivision (a) of this section, if there has been a material increase or decrease in the volume of business or a judge of a court of bankruptcy, perform such duties of a referee, concitiation commissioner, or special master under this Act, within other change in the factors which may be considered material in fixing the jurisdiction of the court, as he may be able and willing to under- salaries: Provided, however, That during the tenure of any full-time take. The retired referee shall receive as compensation for his services, referee his salary shall not be reduced below that at which he was either full or part time, the salary authorized for the referee serving originally appointed under this amendatory Act, and during any term the territory to which the retired referee is assigned. However, the of any such referee his salary shall not be reduced below the salary rate of compensation of a retired referee assigned to serve on a full- fixed for him at the beginning of that term.] S.R. 626 S.R. 626 12 time basis in the territory of a part-time referee shall be the rate for full-time service. Salaries authorized under this paragraph shall be subject to the provisions of section 13 (b) of the Civil Service Retire- ment Act. RECOMMENDATIONS The committee believes that S. 582 is meritorious and recommends it do pass. S.R. 626 94TH CONGRESS HOUSE OF REPRESENTATIVES REPORT 1st Session No. 94-467 REVISION OF SALARY FIXING PROCEDURE FOR BANKRUPTCY JUDGES SEPTEMBER 10, 1975.-Committed to the Committee of the Whole House on the State of the Union and ordered to be printed Mr. EDWARDS of California, from the Committee on the Judiciary, submitted the following REPORT [To accompany H.R. 6184] The Committee on the Judiciary, to whom was referred the bill (H.R. 6184) to amend Section 40 of the Bankruptcy Act to fix the salaries of referees in bankruptcy, having considered the same, report favorably thereon without amendment and recommend that the bill do pass. PURPOSE OF THE BILL The purpose of the bill is to restore to the Congress the sole and ex- clusive authority to fix the salaries of full-time bankruptcy judges, as it now has with respect to all other Federal judicial officers. STATEMENT This bill restores to the Congress the sole and exclusive authority to fix the salaries of the full-time referees in bankruptcy. Referees in bankruptcy, now called bankruptcy judges under the re- cently adopted Rules of Bankruptcy Procedure, are full judicial offi- cers. Though under the original Bankruptcy Act of 1898, it was con- templated that District Court judges would be the bankruptcy judges, and the referees would act only as special masters in certain cases, evolution of practice among the District Courts, and the enactment of the Chandler Act in 1938 have conferred greater status and respon- sibilities on the referees in bankruptcy. Presently, in nearly all judi- cial districts, the bankruptcy judge, or referee, presides over all as- pects of bankruptcy cases. During the course of a case there may be several full scale trials, initiated by a complaint, and tried before the court as in any court of general jurisdiction. The bankruptcy judge's orders and decisions are final in every such proceeding, unless appealed to the District Judge. The scope of their responsibilities is 57-006 3 2 wide, for the nature of litigation that finds its way into bankruptcy these recommendations in 1969, thus amending Section 40a of the court knows no bounds. A bankruptcy judge in even an uncomplicated Bankruptcy Act to authorize a maximum salary for full-time referees case may hear contract, tort, tax, family law, property or labor causes of of $36,000. According to Section 40a, however, the Judicial Conference action. He must hear evidence, make findings, and render a decision had to act before the referees could be given the salary increase. just as his brethren on the District Court or a State court of general Instead of following its previous policy of granting the full amount authorized by law to the great bulk of the full-time referees, the jurisdiction do. In addition, the bankruptcy courts in this country deal Judicial Conference articulated a new policy. First, it determined to with tens of billions of dollars of assets every year in both straight bankruptcy cases and arrangements and reorganizations, and presided pay all full-time referees the same amount. That is, it acknowledged that the differences in caseloads among referees around the country over more than 248,000 new cases in fiscal 1975 alone. that had warranted Judicial Conference supervision on referees' The current procedure for setting the salaries of full-time referees salaries in 1946 no longer existed. Their workloads were fairly uni- in bankruptcy is as follows: The Commission on Executive, Legisla- form, and thus their salaries would be the same. That action alone tive, and Judicial Salaries reviews salary levels of top Federal em- would have warranted Congressional action to regain the sole and ployees, including all Federal judges and bankruptcy judges, every exclusive control over Federal judicial salaries that Congress had four years. It forwards its recommendations to the President, who, traditionally exercised. In addition, however, the Judicial Conference after review and with such changes as he deems appropriate, trans- at the same time decided to ignore the statutory maximum and criteria mits the recommendations to the Congress. If Congress does not act in setting the salaries of full-time referees. The reasons advanced in- within 30 days, the recommendations become effective. Congressional cluded the uniformity of workload among the referees, and consequent approval is final with respect to all salaries covered by the Commis- lack of need for statutory standards to measure differences in salary sion's mandate, except those of full- and part-time referees in bank- entitlement. The studied rejection of Congressional standards in the ruptcy. Currently, Congressional approval of the salary recommen- exercise of a delegated power more than warrants Congress' cancella- dations of the Salary Commission for full- and part-time referees in tion of the delegation and reassumption of the authority itself. Thus, it bankruptcy is then subject to review by the Judicial Conference of the is now time for the Congress to regain its sole and exclusive authority United States. Under Section 40 of the Bankruptcy Act, the Judicial in the setting of judicial salaries-authority which the Judicial Con- Conference of the United States is to set the salaries of the full- and ference has exercised in clear violation of the 1969 Congressional part-time bankruptcy judges according to specific statutory criteria mandate. and within the statutory maximum that was last set by the Con- There are three reasons for this change. First, the Judicial Con- gressional salary authorization of 1969. ference has adopted a policy contrary to that expressed by Congress The reason for this anomaly is historical, and has been eliminated six years ago, in refusing to grant to any full-time referee the full both by the current uniformity of salaries among the full-time bank- amount allowed by the increased statutory ceiling of $36,000 set by ruptcy bench, and by the creation, by Congress, in 1967. of the Com- Congress in 1969. That Congress fully expected the Conference to mission of Executive, Legislative and Judicial Salaries. Prior to 1946, grant that increase to nearly all full-time referees is evidenced by the referees in bankruptcy were compensated on the universally deplored Conference's actions with respect to prior Congressional Authoriza- fee-system-in essence, in a commission on the size of the estate ad- tions. The Judicial Conference invariably and without exception au- ministered. This system gave the referees the appearance of partiality thorized nearly all full-time referees to receive the maximum salary in their deliberations, because their fees depended on the outcome of permitted by Section 40a. the litigation over which they presided. Congress established the The first statutory ceiling under the Referees' Salary Act, effective Referees' Salary and Expense Fund in 1946, and put all referees, both July 1, 1947, was immediately allowed to become effective as to all full- and part-time, on a salary basis. However, at that time. the case- but 16 full-time bankruptcy judges.¹ The $12,500 maximum author- loads of even full-time referees varied widely around the country. In ized by the Act of July 7, 1952 was allowed to the bulk of full-time order to facilitate the transition to the salary system, the Congress bankruptcy judges by Judicial Conference action in the fall of 1952.2 delegated to the Judicial Conference the power to determine the salary The maximum $15,000 salary authorized by the Act of May 10, 1956 each referee would receive, according to specific statutory guidelines, was approved by the Judicial Conference for most full-time bank- such as caseload and size of estates administered and subject to a ruptcy judges, effective October 1, 1963.³ The statutory maximum statutory maximum. For 23 years, the Judicial Conference set salaries of $22,500 as fixed by Public Law 88-426 in 1964 was approved for for full-time referees according to the statutory criteria and periodi- the overwhelming majority of referees by the Judicial Conference on cally increasing maxima. Nearly all full-time referees were given the September 23-24, 1964 and was made retroactive to June 30, 1964.4 full amount authorized by law. In 1967, Congress created the Commission on Executive, Legislative 1 22 Ref. J. 25 (1948). and Judicial Salaries. The Commission issued its first recommendation 2 28 Ref. J. 8 (1954). 3 Report of proceedings of the Judicial Conference of the United States Sept. 19-20, 1946, in 1968, suggesting a salary of $40,000 for full-time referees in bank- at 18 (Administration Office of the U.S. Courts, 1956). ruptcy. The President reduced this recommendation to $36,000 before 4 Report of proceedings of Judicial Conference of the United States, Sept. 23-24, 1964, at 71 (Administrative Office of the U.S. Courts, 1964). transmitting the recommendations to Congress. Congress approved H.R. 467 H.R. 467 4 5 However, when Congress raised the maximum to $36,000 in 1969, age number and the types of, and the average amount of gross assets the Conference did not follow suit. Instead, it set its own ceiling of realized from, cases closed and pending in the territory which the $30,000 on the referees' salaries. Congress must now reassert its posi- referee is to serve, during the last preceding period of ten years, and tion as the policy-making body for the nation's top judicial officers, to such other factors as may be material. Disbursement of such salaries and implement the 1969 decision to pay the bankruptcy judges. shall be made monthly by or pursuant to the order of the Director. Second, the Judicial Conference has recognized that the original [b. The conference, in the light of the recommendations of the coun- factors that required the delegation of authority no longer exist. In cils, made after advising with the district judges of their respective 1946, there was insufficient uniformity in workload among full-time circuits, and of the Director, may increase or decrease any salary, referees such that Congress could set a single salary appropriate for within the limits prescribed in subdivision a of this section, if there all. It would have been nearly impossible for the Congress to super- has been a material increase or decrease in the volume of business or vise the details of the transition from the fee system to the salary other change in the factors which may be considered material in fixing system. Since 1969, the Judicial Conference has set the salaries of all salaries: Provided, however, That during the tenure of any full-time full-time bankruptcy judges uniformly across the country. This means referee his salary shall not be reduced below that at which he was that the detailed supervision required thirty years ago is no longer originally appointed under this amendatory Act, and during any term necessary. Congress may now set a uniform salary that will be appro- of any such referee his salary shall not be reduced below the salary priate for all full-time bankruptcy judges. fixed for him at the beginning of that term. Finally, the creation in 1967 of the Commission on Executive, Leg- (a) The compensation of referees in bankruptcy shall be as follows islative, and Judicial Salaries has obviated the need for the Judicial (1) Each full-time referee in bankruptcy shall receive a salary of Conference to supervise the salary levels of the bankruptcy judges. $36,000 per annum, subject to adjustment in accordance with section Their salaries are reviewed every four years by the Commission. The 225 of the Federal Salary Act of 1967. President gives additional thought to the matter, before transmitting (2) Each part-time referee in bankruptcy shall receive a salary of the Commission's recommendations to the Congress. Congress also not more than $18,000 per annum, subject to adjustment in accord- has an opportunity to consider the salary recommendations before ance with section 225 of the Federal Salary Act of 1967, and subject to they become law. Further review by the Judicial Conference not only further adjustment by the conference, in the light of recommendations duplicates these efforts, but it allows the Conference to thwart the of the councils, made after advising with the district judges of their will of Congress, as it has done for the past 6 years. Passage of this respective circuits, and the Director. In fixing the amount of the bill would restore to Congress the sale and exclusive authority to fix salary to be paid to a part-time referee, consideration shall be given judicial salaries via the mechanism of periodic review of the Salary to the average number and types of, and the average amount of gross Commission's recommendations for bankruptcy judges' salaries, just assets realized from, cases closed and pending in the territory which as the Congress does for all other judicial salaries. the part-time referee is to serve, during the last preceding period of ten years, and to such other factors as may be material. CHANGES IN EXISTING LAW MADE BY THE BILL, As REPORTED (3) Disbursement of salaries of referees shall be made monthly In compliance with clause 3 of rule XIII of the Rules of the House by or pursuant to order of the Director. (b) The conference, in light of the recommendations of the councils, of Representatives, changes in existing law made by the bill, as re- made after advising with the district judges of their respective cir- ported, are shown as follows (existing law proposed to be omitted. is cuits, and of the Director, may increase or decrease the salary of any enclosed in black brackets, new matter is printed in italic, existing law part-time referee, within the limit prescribed in subdivision a (2) of in which no change is proposed is shown in roman) : this section, if there has been a material increase or decrease in the volume of business or other change in the factors which may be con- SECTION 40 OF THE BANKRUPTCY ACT sidered material in fixing salaries. § 40. Compensation of Referees: Referees' Salary and Expense * Fund; Retirement of Referees. [a. Referees shall receive as full com- d. (1) All referees in bankruptcy and employees in the offices of pensation for their services salaries to be fixed by the conference, in such referees shall be deemed to be officers and employees in the judi- the light of the recommendations of the councils, made after advising cial branch of the United States Government within the meaning of with the district judges of their respective circuits, and of the Director, the Civil Service Retirement Act. at rates, in the case of full-time referees, not more than the rate deter- (2) Any referee who has retired or been retired under the provi- mined for such referees under section 225 of the Federal Salary Act sions of paragraph (1) of this subdivision may, if called upon by a of 1967 (2 U.S.C. 351-361), as adjusted under section 461 of title 28, judge of a court of bankruptcy, perform such duties of a referee, United States Code, and in the case of part-time referees, not more conciliation commissioner, or special master under this Act, within than one-half of such rate, as SO adjusted. In fixing the amount of the jurisdiction of the court, as he may be able and willing to under- salary to be paid to a referee, consideration shall be given to the aver- take. The retired referee shall receive as compensation for his serv- H.R. 467 H.R. 467 6 ices, either full or part time, the salary authorized for the referee serv- ing the territory to which the retired referee is assigned. However, the rate of compensation of a retired referee assigned to serve on a full-time basis in the territory of a part-time referee shall be the [mini- mum rate established by the Judicial Conference of the United States for] rate of full-time service. Salaries authorized under this para- graph shall be subject to the provisions of section 13 (b) of the Civil Service Retirement Act. COST OF LEGISLATION Pursuant to the requirement of clause 7 of rule XIII of the Rules of the House of Representatives the following estimate of costs in- curred in carrying out the provisions of this bill are submitted. The anticipated cost of this legislation would be $826,500. There are presently 190 full-time bankruptcy judges and the cost would be $4,350 per full-time bankruptcy judge. STATEMENTS UNDER CLAUSE 2 (1) (3) OF RULE X OF THE RULES OF THE HOUSE OF REPRESENTATIVES A. Oversight Statement.-No oversight findings or recommenda- tions have previously been filed with respect to this area. B. Budget Statement.-Clause 2 (1) (3) (B) of rule XI is not ap- plicable. Section 308 (a) of the Congressional Budget Act of 1974 will not be implemented this year. See last paragraph of House Report No. 94-25, 94th Congress, 1st Session (1975). C. No estimate or comparison from the Director of the Congres- sional Budget Office was received. D. No related oversight findings and recommendations have been made by the Committee on Government Operations under clause 2 (g) (2) of rule X. STATEMENT UNDER CLAUSE (1) (4) OF RULE XI OF THE RULES OF THE HOUSE OF REPRESENTATIVES CONCERNING ANY INFLATIONARY IMPACT ON PRICES AND COSTS IN THE OPERATION OF THE NATIONAL ECONOMY The committee concludes that in view of the modest increased ex- penditure which would result from enactment of this legislation, there will be no inflationary impact on prices and costs in the operation of the national economy. H.R. 467 H. R. 6184 Ainety-fourth Congress of the United States of America AT THE SECOND SESSION Begun and held at the City of Washington on Monday, the nineteenth day of January, one thousand nine hundred and seventy-six An Art To amend section 40 of the Bankruptcy Act to fix the salaries of referees in bankruptcy. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the portion of section 40 (11 U.S.C. 68) of the Bankruptcy Act which appears before subsection (c) of such section is amended to read as follows: "a. The compensation of referees in bankruptcy shall be as follows: "(1) Each full-time referee in bankruptcy shall receive a salary of $37,800 per annum, subject to adjustment in accordance with section 225 of the Federal Salary Act of 1967 and section 461 of title 28 of the United States Code. (2) Each part-time referee in bankruptcy shall receive a salary of not more than $18,900 per annum, subject to adjustment in accordance with section 225 of the Federal Salary Act of 1967 and section 461 of title 28 of the United States Code, and subject to further adjustment by the conference, in the light of recommendations of the councils, made after advising with the district judges of their respective circuits, and the Director. In fixing the amount of the salary to be paid to a part-time referee, consideration shall be given to the average number and types of, and the average amount of gross assets realized from, cases closed and pending in the territory which the part-time referee is to serve, during the last preceding period of ten years, and to such other factors as may be material (3) Disbursement of salaries of referees shall be made monthly by or pursuant to order of the Director. "b. The conference, in light of the recommendations of the councils, made a fter advising with the district judges of their respective circuits, and of the Director, may increase or decrease the salary of any part- time referee, within the limit prescribed in subdivision a(2) of this section, if there has been a material increase or decrease in the volume of business or other change in the factors which may be considered material in fixing salaries." SEC. 2. The next to final sentence of section 40d(2) of the Bank- ruptcy Act is amended by striking out "However, the rate of compen- sation" and all that follows down through the end of the sentence and inserting in lieu thereof the following "However, the rate of compen- sation of a retired referee assigned to serve on a full-time basis in the territory of a part-time referee shall be the rate of full-time service.". Speaker of the House of Representatives. Vice President of the United States and President of the Senate.