170B
Federal Courts
170BVII
Supreme Court
170BVII(C)
Review of Decisions of District Courts
170Bk476
k. Construction or Application of
Constitution of United States.
Most Cited Cases
On appeals of cases
in which federal district court justices
successfully challenged, under Compensation
Clause, validity of statutes enacted
to stop or reduce previously authorized
cost-of-living increases initially
intended to be automatically operative,
Supreme Court had jurisdiction under
statute providing for appeals to Supreme
Court from judgments holding an Act
of Congress unconstitutional in any
civil action to which United States
is a party. 28
U.S.C.A. § 1252; U.S.C.A.Const.
Art. 3, § 1 et seq.
[2]
Federal Courts 170B 979
170B Federal Courts
170BIX
District Courts
170BIX(A)
In General
170Bk974
Claims Against the United States
170Bk979
k. Amount in Controversy.
Most Cited Cases
In actions in which
federal district court judges challenged,
under Compensation Clause, statutes
enacted to stop or reduce previously
authorized cost-of-living increases
initially intended to be automatically
operative and in which claims of individual
class members did not exceed $10,000,
district court had jurisdiction under
statute conferring on district courts
and court of claims concurrent jurisdiction
over actions against United States
based on Constitution when amount
in controversy does not exceed $10,000.
28
U.S.C.A. § 1346(a)(2); U.S.C.A.Const.
Art. 3, § 1 et seq.
[3]
Judges 227 39
227 Judges
227IV
Disqualification to Act
227k39
k. Nature and Effect in General.
Most Cited Cases
Under
common-law “Rule of Necessity,” even
though he has an interest in the case,
a judge has a duty to hear and decide
case if it cannot otherwise be heard.
[4]
Judges 227 42
227 Judges
227IV
Disqualification to Act
227k41
Pecuniary Interest
227k42
k. In General.
Most Cited Cases
In
cases before Supreme Court challenging
statutes enacted to stop or reduce
previously authorized cost-of-living
increases in compensation of high-level
federal officials, including federal
judges, since all
Article III judges had
interest in the outcome, it was impossible
to assign a substitute district judge
or remit the appeal to division of
Court of Appeals, and thus, common-law
Rule of Necessity prevailed over statute
governing disqualification of federal
judges. 28
U.S.C.A. § 455; U.S.C.A.Const.
Art. 3, § 1 et seq.
[5]
Judges 227 42
227 Judges
227IV
Disqualification to Act
227k41
Pecuniary Interest
227k42
k. In General.
Most Cited Cases
Judges
227 49(1)
227 Judges
227IV
Disqualification to Act
227k49
Bias and Prejudice
227k49(1)
k. In General.
Most Cited Cases
Statute
requiring federal judge to disqualify
himself in any proceeding in which
his impartiality might reasonably
be questioned or where he has financial
interest in subject matter in controversy
or is party to proceeding does not
alter time-honored Rule of Necessity.
28
U.S.C.A. § 455.
[6]
Statutes 361 158
361 Statutes
361V
Repeal, Suspension, Expiration, and
Revival
361k158
k. Implied Repeal in General.
Most Cited Cases
Generally, repeals by implication
are not favored, especially when provision
advanced as repealing measure was
enacted in an appropriations bill.
[7]
Statutes 361 149
361 Statutes
361V
Repeal, Suspension, Expiration, and
Revival
361k149
k. Power to Repeal in General.
Most Cited Cases
Statutes
361 171
361 Statutes
361V
Repeal, Suspension, Expiration, and
Revival
361k171
k. Suspension of Act.
Most Cited Cases
When
Congress desires to suspend or repeal
a statute in force, it can accomplish
its purpose by amendment to an appropriations
bill or otherwise.
[8]
Judges 227 22(2)
227 Judges
227III
Rights, Powers, Duties, and Liabilities
227k22
Compensation and Fees
227k22(2)
k. Constitutional and Statutory Provisions.
Most Cited Cases
In
enacting four statutes to stop or
reduce previously authorized cost-of-living
increases in compensation of high-level
federal officials, including federal
judges, Congress intended in effect
to repeal or postpone previously authorized
salary increases for federal judges,
not simply to consign such increases
to fiscal limbo of an account due
but not payable. 2
U.S.C.A. §§ 351-361;
5
U.S.C.A. §§ 5305,
5306; Legislative
Branch Appropriation Act, 1977, Title
II, 90 Stat. 1439; Legislative
Branch Appropriation Act, 1979, § 304(a),
92 Stat. 763; Act Oct. 12, 1979,
§ 101(c), 93 Stat. 656.
[9]
Judges 227 22(2)
227 Judges
227III
Rights, Powers, Duties, and Liabilities
227k22
Compensation and Fees
227k22(2)
k. Constitutional and Statutory Provisions.
Most Cited Cases
Since
statute enacted to prohibit previously
authorized cost-of-living increases
to high-level federal officials, including
federal judges, became law on first
day of fiscal year, by which time
salary increases had already taken
effect, it purported to repeal salary
increase already in force, and thus,
“diminished” compensation of federal
judges in violation of Compensation
Clause. Executive Salary Cost-of-Living
Adjustment Act, 89 Stat. 419; Legislative
Branch Appropriation Act, 1977, Title
II, 90 Stat. 1439; U.S.C.A.Const.
Art. 3, § 1 et seq.
[10]
Judges 227 22(7)
227 Judges
227III
Rights, Powers, Duties, and Liabilities
227k22
Compensation and Fees
227k22(7)
k. Change in Amount During Term of
Office.
Most Cited Cases
A
salary “vests” for purposes of Compensation
Clause only when it takes effect as
part of compensation due and payable
to
Article III judges. U.S.C.A.Const.
Art. 3, § 1 et seq.
[11]
Judges 227 22(2)
227 Judges
227III
Rights, Powers, Duties, and Liabilities
227k22
Compensation and Fees
227k22(2)
k. Constitutional and Statutory Provisions.
Most Cited Cases
Statutes
which eliminated cost-of-living adjustment
in salaries of high-level federal
officials, including federal judges,
before scheduled salary increases
had taken effect did not violate Compensation
Clause, since statutes in no sense
diminished compensation such judges
were receiving. Executive Salary
Cost-of-Living Adjustment Act, 89
Stat. 419; Legislative Branch
Appropriation Act, 1979, § 304(a),
92 Stat. 763; U.S.C.A.Const.
Art. 3, § 1 et seq.
[12]
Judges 227 22(2)
227 Judges
227III
Rights, Powers, Duties, and Liabilities
227k22
Compensation and Fees
227k22(2)
k. Constitutional and Statutory Provisions.
Most Cited Cases
Judges
227 22(7)
227 Judges
227III
Rights, Powers, Duties, and Liabilities
227k22
Compensation and Fees
227k22(7)
k. Change in Amount During Term of
Office.
Most Cited Cases
Even
though statute purporting to revoke
increase in compensation of high-level
officials referred only to “executive
employees, which includes Members
of Congress,” and did not expressly
mention judges, Congress intended
to include
Article III judges, and,
since such statute purported to revoke
increase in judges' compensation after
statutes granting increase had taken
effect, it violated Compensation Clause.
Executive Salary Cost-of-Living
Adjustment Act, 89 Stat. 419; Act
Oct. 12, 1979, § 101(c), 93 Stat.
656; U.S.C.A.Const.
Art. 3, § 1 et seq.
**473 Syllabus
FN*
FN* The syllabus constitutes
no part of the opinion of the Court
but has been prepared by the Reporter
of Decisions for the convenience of
the reader. See
United States v. Detroit Lumber Co.,
200 U.S. 321, 337, 26 S.Ct. 282, 287,
50 L.Ed. 499.
*200
An interlocking network of federal
statutes fixes the compensation of
high-level federal officials, including
federal judges, and provides for annual
cost-of-living adjustments in salary
determined in the same way as those
for federal employees generally. In
four consecutive fiscal years (hereafter
Years 1, 2, 3, and 4), Congress, with
respect to these high-level officials,
enacted statutes to stop or reduce
previously authorized cost-of-living
increases initially intended to be
automatically operative under that
statutory scheme. In Years
2 and 3, the statutes became law before
the start of the fiscal year, and
in Years 1 and 4 became law on or
after the first day of the fiscal
year. A number of United
States District Court Judges (appellees)
filed class actions against the United
States in District Court, challenging
the validity of the statutes under
the Compensation Clause of the Constitution,
which provides that federal judges
shall receive compensation which “shall
not be diminished during their Continuance
in Office.” The District
Court granted summary judgments for
appellees.
Held
:
1.
This Court has jurisdiction of the
appeals under
28 U.S.C. § 1252,
providing for appeals to this Court
from judgments holding an Act of Congress
unconstitutional in any civil action
to which the United States is a party.
And the District Court
had jurisdiction over the actions
under
28 U.S.C. § 1346(a)(2),
which confers on district courts and
the Court of Claims concurrent jurisdiction
over actions against the United States
based on the Constitution when the
amount in controversy does not exceed
$10,000, none of the individual claims
here having been alleged to have exceeded
that amount. Pp. 478-479.
2.
Title 28 U.S.C. § 455-which
requires a federal judge to disqualify
himself **474 in any proceeding
in which his impartiality might reasonably
be questioned or where he has a financial
interest in the subject matter in
controversy or is a party to the proceeding-by
reason of the Rule of *201
Necessity does not operate
to disqualify all federal judges,
including the Justices of this Court,
from deciding the issues presented
by these cases. Where,
under the circumstances of these cases,
all
Article III judges have
an interest in the outcome so that
it was not possible to assign a substitute
district judge or for the Chief Justice
to remit the appeal, as he is authorized
to do by statute, to a division of
the Court of Appeals with judges who
are not subject to the disqualification
provisions of
§ 455, the common-law
Rule of Necessity, under which a judge,
even though he has an interest in
the case, has a duty to hear and decide
the case if it cannot otherwise be
heard, prevails over the disqualification
standards of
§ 455. Far
from promoting
§ 455's purpose of
reaching disqualification of an individual
judge when there is another to whom
the case may be assigned, failure
to apply the Rule of Necessity in
these cases would have a contrary
effect by denying some litigants their
right to a forum. And
the public might be denied resolution
of the crucial matter involved if
first the District Judge and now all
the Justices of this Court were to
ignore the mandate of the Rule of
Necessity and decline to answer the
questions presented. Pp.
479-482.
3.
The statutes in question in Years
1 and 4, but not in Years 2 and 3,
violated the Compensation Clause.
Pp. 482-488.
(a)
In each of the four years in question,
Congress intended in effect to repeal
or postpone previously authorized
salary increases for federal judges,
not simply to consign such increases
to the fiscal limbo of an account
due but not payable. Pp.
483-485.
(b)
Since the statute applying to Year
1 became law on the first day of the
fiscal year, by which time the salary
increases already had taken effect,
it purported to repeal a salary increase
already in force and thus “diminished”
the compensation of federal judges.
That the statute included
in the salary “freeze” other federal
officials who are not protected by
the Compensation Clause did not insulate
a direct diminution in judges' salaries
from the clear mandate of that Clause.
Pp. 485-486.
(c)
But the statutes applying to Years
2 and 3 became law before the scheduled
salary increases for federal judges
had taken effect, i. e., before
they had become a part of the compensation
due
Article III judges, and
hence in no sense diminished the compensation
such judges were receiving. Pp.
486-488.
(d)
Even though the statute applying to
Year 4 referred only to “executive
employees, which includes Members
of Congress,” and did not expressly
mention judges, it appears that Congress
intended to include
Article III judges. Accordingly,
where such statute, similarly to the
statute applying to Year 1, purported
to revoke an increase in *202
judges' compensation after the statutes
granting the increase had taken effect,
it violated the Compensation Clause.
P. 488.
No.
79-983,
D.C., 478 F.Supp. 621, and No. 79-1689,
affirmed in part, reversed in part,
and remanded.
Kenneth
S. Geller, Washington, D.C., for appellant.
Kevin
M. Forde, Chicago, Ill., for appellees.
Chief
Justice BURGER delivered the opinion
of the Court.
These
appeals present the questions whether
under the Compensation Clause,
Art. III, § 1, Congress
may repeal or modify a statutorily
defined formula for annual cost-of-living
increases in the compensation of federal
judges, and, if so, whether it must
act before the particular increases
take effect.
I
Congress
has enacted an interlocking network
of statutes to fix the compensation
of high-level officials in the Executive,
Legislative, and Judicial Branches,
including federal judges. It
provides for quadrennial review of
overall salary levels and annual cost-of-living
adjustments determined in **475
the same fashion as those for federal
employees generally. In
four consecutive fiscal years, Congress,
with respect to these high-level *203
Executive Branch, Legislative,
and Judicial salaries, enacted statutes
to stop or to reduce previously authorized
cost-of-living increases initially
intended to be automatically operative
under that statutory scheme, once
the Executive had determined the amount.
In two of these years,
the legislation was signed by the
President and became law before the
start of the fiscal year; in
the other two years, on or after the
first day of the fiscal year.
A
The salaries
of high-level Executive, Legislative,
and Judicial officials are set under
the Postal Revenue and Federal Salary
Act of 1967, 81 Stat. 642, as amended,
2 U.S.C. §§ 351- 361
(1976 ed. and Supp. III). The
Salary Act provides for a quadrennial
review, starting in 1969, of these
officials' compensation. A
Commission on Executive, Legislative,
and Judicial Salaries periodically
examines the salary levels for these
positions in relation to one another
and to the General Schedule (GS),
the matrix of grades and steps that
determines the salaries of most federal
employees. Its recommendations
are submitted to the President, who
in turn submits that report with his
recommendations to Congress in the
next budget. Each House
of Congress must vote on the President's
proposal within 60 days. If
both Houses approve, the adjustment
takes effect at the start of the first
pay period beginning 30 days thereafter. FN1
FN1. The Salary Act, as
amended, does not expressly prescribe
what occurs if either House of Congress
disapproves. See
2 U.S.C. § 359 (1976 ed., Supp.
III).
In 1975,
Congress adopted the Executive Salary
Cost-of-Living Adjustment Act,
Pub.L. 94-82, 89 Stat.
419. The Adjustment Act
subjects the salaries covered by the
Salary Act to the same annual adjustment
made in the General Schedule under
the Federal Pay Comparability Act
of 1970,
5 U.S.C. §§ 5305- 5306.
The Comparability Act
requires that each year the President
designate an agent to compare federal
salaries to data on private-sector
salaries compiled by *204
the Bureau of Labor Statistics.
The agent must undertake
certain steps in his investigation
and, ultimately, submit a report to
the President recommending adjustments
as deemed appropriate to bring federal
employees' salaries in line with prevailing
rates in the private sector. A
separate Advisory Committee on Federal
Pay then reviews that report and makes
its own independent recommendation.
Thereafter, the President
issues an order adjusting the salaries
of federal employees and submits a
report to Congress listing the overall
percentage of the adjustment and including
the reports and recommendations submitted
to him on the subject. If
the President believes that economic
conditions or conditions of national
emergency make the planned adjustment
inappropriate, he may submit to Congress
before September 1 an alternative
plan for adjusting federal employees'
salaries. This alternative
plan controls unless within 30 days
of continuous legislative session
either House of Congress adopts a
resolution disapproving of the President's
proposed plan. If one
House disapproves, the agent's recommendation
governs. The increases
take effect with the start of the
first pay period starting on or after
the beginning of the federal fiscal
year on October 1.
This complex
web of base salaries adjusted annually
for civil service employees and again
quadrennially for higher-rank positions
has led to the following statutory
definition of a United States district
judge's compensation: “Each judge
of a district court of the United
States shall receive a salary at an
annual rate determined under section
225 of the Federal Salary Act of 1967
( 2
U.S.C. 351- 361),
as adjusted by section 461 of this
title.” 28
U.S.C. § 135.
Similarly
phrased statutes apply to all other
Article III judges. FN2
Title
28 U.S.C. § 461 in
**476 turn provides that the
annual *205 GS adjustment,
rounded to the nearest multiple of
$100, shall apply to salaries subject
to that section, effective at the
start of the next pay period. Compensation
of judges is set at an annual figure
and paid monthly, with each pay period
coinciding with the calendar month.
See
5 U.S.C. § 5505. Accordingly,
any annual change in salary under
the Adjustment Act takes effect at
the beginning of October, the start
of the fiscal year.
B
In October
1975 GS salaries were increased by
an average of 5% under the terms of
the Comparability Act. Federal
judges and the other officials covered
by the Adjustment Act received similar
increases. In each of
the following four years, however,
Congress adopted a statute that altered
the application of the Adjustment
Act for the officials of the three
branches subject to it. To
avoid the confusion generated by a
fiscal year's having a number different
from the calendar year in which it
begins, we refer to these as Years
1, 2, 3, and 4. We turn
now to the specific actions taken
for each of the four years in question.
Year
1
In October
1976, GS salaries were increased by
an average of 4.8% under the procedures
of the Comparability Act outlined
earlier. On October 1,
the first day of the new fiscal year
and the first day of the relevant
pay period, the President signed the
Legislative Branch Appropriation Act,
1977, Pub.L. 94-440, 90
Stat. 1439. Title II of
that statute provided: “[N]one of
the funds contained in this Act shall
be used to increase salaries of Members
of the House of Representatives ...
No part of the funds appropriated
in *206 this
Act or any other Act shall be used
to pay the salary of an individual
in a position or office referred to
in section 225(f) of the Federal Salary
Act of 1967, as amended ( 2
U.S.C. 356), including a Delegate
to the House of Representatives, at
a rate which exceeds the salary rate
in effect on September 30, 1976, for
such position or office ....”
By virtue
of the reference to the Salary Act,
this statute applied to federal judges;
its import, therefore, was to
prohibit paying the 4.8% raise on
October 1, 1976, under the Adjustment
Act to federal judges, as well as
Members of Congress and high-level
officials in the Executive Branch.
In March
1977, Members of Congress, federal
judges, and high-ranking employees
in the Executive Branch received raises
pursuant to the quadrennial review
under the Salary Act. The
salary of a United States district
judge, for example, increased to $54,500;
circuit judges and special appellate
judges, to $57,500; Associate
Justices of the Supreme Court, to
$72,000. 42
Fed.Reg. 10297 (1977). FN3
FN3. These amounts exceeded
the levels these salaries would have
achieved had Congress left in effect
the 4.8% increase from October 1,
1976. Therefore, appellees'
complaint in No. 79-983 challenged
the statute in Year 1 only insofar
as it affected judicial compensation
from October 1, 1976, to March 1,
1977. See n. 6, infra.
Year
2
In October
1977, GS salaries, which generally
are not subject to the quadrennial
review under the Salary Act, were
increased an average of 7.1% under
the Comparability Act. On
July 11, 1977, the President signed
Pub.L. 95-66, 91 Stat.
270, which provided: “[T]he first
adjustment which, but for this Act,
would be made after the date of enactment
of this Act under the following provisions
of law in the salary or rate of pay
*207 of positions or
individuals to which such provisions
apply [the 7.1% in October 1977],
shall not take effect:
Parallel
subdivisions applied to the other
officials under the Salary Act. According
**477 to the House Report on
this measure, an Adjustment Act increase
would be inappropriate following the
Comparability Act increase earlier
in the same calendar year. H.R.Rep.No.95-458,
p. 2 (1977), U.S.Code Cong.
& Admin.News 1977, p. 464. FN4
The effect of this statute was
to nullify the contemplated 7.1% increase
for these high-level executive employees,
Members of Congress, and federal judges.
FN4. See also 123 Cong.Rec.
7126 (1977) (remarks of Sen. Scott)
(“prevents people ... from receiving
two pay raises in 1 year”); id.,
at 21121 (remarks of Rep. Solarz)
(“individuals who have already received
one increase during the course of
the current year should not be entitled
to receive a second increase as well”);
infra, at 484, and n.
24.
Year
3
For the
fiscal year beginning October 1, 1978,
the President approved the recommendation
to increase GS salaries an average
of 5.5%. On September
30, 1978, the final day of the preceding
fiscal year, however, the President
signed the Legislative Branch Appropriation
Act,
1979, Pub.L. 95-391, 92
Stat. 763. Section 304(a)
of that Act stated:
“No
part of the funds appropriated for
the fiscal year ending September 30,
1979, by this Act or any other Act
may be used to pay the salary or pay
of any individual in any office or
position in the legislative, executive,
or judicial branch, or in the government
of the District of Columbia, at a
rate which exceeds the rate (or maximum
rate, if higher) of salary or basic
pay payable for such office or position
for September 30, 1978 ...”
*208
The effect of this provision
was to prohibit paying the 5.5% increase
authorized by the Adjustment Act for
the fiscal year beginning October
1, 1978.
Year
4
For the
fiscal year beginning October 1, 1979,
the President's statutory agent transmitted
a recommendation for an average increase
of 10.41%. However, on
August 31, the President invoked his
power under the Comparability Act
to alter this rate; he reduced
the proposed increase to 7% from the
10.41% recommended. These
increases, the Government concedes,
took effect on October 1, 1979. Moreover,
because the September 30, 1978, statute
(Year 3) prohibited paying the 5.5%
increase only during fiscal year 1979,
that increase took effect as well;
along with the 7% adjustment
this brought the total to 12.9%. FN5
Nevertheless, the Government
now contends that this increase was
in effect for only 11 days, since
on October 12, the President signed
Pub.L. 96-86, 93 Stat.
656. Section 101(c) of
this statute stated, in relevant part:
FN5. The 7% increase was
computed on the salary levels as they
stood after the addition of the 5.5%
increase deferred from Year 3. The
compounding of the two increases means
that the employees affected felt a
combined increase of 12.9%. This
explains the additional 0.4%.
“For fiscal
year 1980, funds available for payment
to executive employees, which includes
Members of Congress, who under existing
law are entitled to approximately
12.9 percent increase in pay, shall
not be used to pay any such employee
or elected or appointed official any
sum in excess of 5.5 percent increase
in existing pay and such sum if accepted
shall be in lieu of the 12.9 percent
due for such fiscal year.” None of
the appellees have exercised the statutory
option to accept the 5.5% increase
pursuant to the final clause of this
statute; in terms that statute
provides such acceptance of the 5.5%
operates as a waiver of all claims
to rates higher than *209
the 5.5%. The Government
concedes the 5.5% increase has continued
in effect.
C
On February
7, 1978, 13 United States District
Judges filed an action (No. 79-983
in this Court) in the District Court
for the Northern District of Illinois.
The complaint, which named
the United States as defendant, challenged
the validity of the statutes in Years
1 and 2 under the Compensation Clause,
U.S.Const., Art. III, § 1. FN6
**478 The plaintiff judges
were certified as representatives
of two classes of
Article III judges the
classes defined with reference to
Years 1 and 2. FN7
The Government, while not opposing
certification of the classes, defended
the validity of both statutes.
FN6. The plaintiffs challenged
the statute in Year 1 only insofar
as it applied to compensation earned
from October 1, 1976, until March
1, 1977, the date the quadrennial
increase under the Comparability Act
took effect. See n. 3,
supra.
FN7. For Year 1, the class
was defined as all
Article III judges serving
during part or all of the period October
1, 1976, to March 1, 1977, the date
the quadrennial increase under the
Comparability Act took effect. See
n. 6, supra. For
Year 2, the class was defined as all
Article III judges taking
office prior to July 11, 1977, the
date the statute was passed, and continuing
in office after October 1, 1977, the
date the Adjustment Act increase was
due to take effect. The case was referred
to a newly appointed member of the
District Court who had taken office
after October 1, 1977, and thus was
not a member of either class.
No. 79-1689
comes to us from a similar complaint
filed in the United States District
Court for the Northern District of
*210 Illinois on October
19, 1979, after the District Court
had entered judgment in No. 79-983.
At issue this time were
the statutes in Years 3 and 4. The
same 13 judges, joined by one other,
again sought to represent two classes
of
Article III judges defined
by the years. FN8
The United States is defendant.
The case was referred
to the same member of the District
Court who had presided over the proceedings
in No. 79-983.
FN8. For Year 3, the class
was defined as all
Article III judges in office
on October 1, 1978, the date of the
scheduled Adjustment Act increase,
and continuing in office thereafter.
For Year 4, the class
was defined as all
Article III judges in office
on October 1, 1979, the date the Adjustment
Act increase took effect, and continuing
in office through October 12, 1979,
the date the Year 4 statute was signed.
On January
31, 1980, the District Court entered
an order certifying the classes and
granting summary judgment for the
plaintiffs, appellees in No. 79-1689.
Based on its decision
in No. 79-983, the court held that
the statute in Year 3 violated the
Compensation Clause. The
court noted with respect to Year 4
that the relevant statute referred
only to “executive employees.” It
then held that while it was doubtful
Congress intended the statute to apply
the statute to judges, would be unconstitutional
if Congress did so intend. In
either case, the Adjustment Act increase
for Year 4 took effect. Judgment
for appellees was formally entered
February 12. On the Government's
appeal to this Court, we postponed
consideration of jurisdiction to the
merits and consolidated this case
with No. 79-983 for briefing and oral
argument. 447
U.S. 919, 100 S.Ct. 3008, 65 L.Ed.2d
1111 (1980).
II
A
Jurisdiction
[1][2]
Although it is clear that the District
Judge and all Justices of this Court
have an interest in the outcome of
these cases, there is no doubt whatever
as to this Court's jurisdiction *211
under
28 U.S.C. § 1252
FN9 or that of the District Court
under
28 U.S.C. § 1346(a)(2) (1976
ed., Supp. III). FN10
**479
Section 455 of Title 28
FN11 neither expressly nor by
implication purports to deal with
jurisdiction. On its face
§ 455 provides for
disqualification of individual judges
under specified circumstances; it
does not affect the jurisdiction of
a court. Nothing in the
text or the history of
§ 455 suggests that
Congress intended, by that section,
to amend the vast array of statutes
conferring jurisdiction over certain
matters on various federal courts.
FN9. This section provides
in part:“Any party may appeal to the
Supreme Court from an interlocutory
or final judgment, decree or order
of any court of the United States
... holding an Act of Congress unconstitutional
in any civil action, suit, or proceeding
to which the United States or any
of its agencies, or any officer or
employee thereof, as such officer
or employee, is a party.”
FN10. This provision confers
on the district courts and the Court
of Claims concurrent jurisdiction
over actions against the United States
based on the Constitution when the
amount in controversy does not exceed
$10,000. The complaints
in both No. 79-983 and No. 79-1689
state that the claims of individual
members of the classes do not exceed
$10,000, an allegation the Government
has not disputed. See
App. 9a, 62a.
FN11. This section provides
in relevant part:
“(a) Any justice, judge, or magistrate
of the United States shall disqualify
himself in any proceeding in which
his impartiality might reasonably
be questioned.
“(b) He shall also disqualify himself
in the following circumstances:
“(4) He knows that he ... has a financial
interest in the subject matter in
controversy ..;
“(5) He ..
“(i) Is a party to the proceeding
....”
B
Disqualification
Jurisdiction being
clear, our next inquiry is whether
28 U.S.C. § 455 or
traditional judicial canons
FN12
operate to disqualify *212 all
United States judges, including the
Justices of this Court, from deciding
these issues. This threshold
question reaches us with both the
Government and the appellees in full
agreement that
§ 455 did not require
the District Judge, and does not now
require each Justice of this Court,
to disqualify himself. Rather,
they agree the ancient Rule of Necessity
prevails over the disqualification
standards of
§ 455. Notwithstanding
this concurrence of views resulting
from the Government's concession,
the sensitivity of the issues leads
us to address the applicability of
§ 455 with the same
degree of care and attention we would
employ if the Government asserted
that the District Court lacked jurisdiction
or that
§ 455 mandates disqualification
of all judges and Justices without
exception.
FN12. See, e. g.,
ABA, Code of Judicial Conduct, Canon
3(C).
[3][4]
In federal courts generally, when
an individual judge is disqualified
from a particular case by reason of
§ 455, the disqualified
judge simply steps aside and allows
the normal administrative processes
of the court to assign the case to
another judge not disqualified. In
the cases now before us, however,
all
Article III judges have
an interest in the outcome; assignment
of a substitute District Judge was
not possible. And in this
Court, when one or more Justices are
recused but a statutory quorum of
six Justices eligible to act remains
available, see
28 U.S.C. § 1, the
Court may continue to hear the case.
Even if all Justices are
disqualified in a particular case
under
§ 455,
28 U.S.C. § 2109 authorizes
the Chief Justice to remit a direct
appeal to the Court of Appeals for
final decision by judges not so disqualified. FN13
*213 However, in
**480 the highly unusual setting
of these cases, even with the authority
to assign other federal judges to
sit temporarily under
28 U.S.C. §§ 291- 296
(1976 ed. and Supp. III), it is not
possible to convene a division of
the Court of Appeals with judges who
are not subject to the disqualification
provisions of
§ 455. It
was precisely considerations of this
kind that gave rise to the Rule of
Necessity, a well-settled principle
at common law that, as Pollack put
it, “although a judge had better not,
if it can be avoided, take part in
the decision of a case in which he
has any personal interest, yet he
not only may but must do so if the
case cannot be heard otherwise.” F.
Pollack, A First Book of Jurisprudence
270 (6th ed. 1929).
FN13.
Section 2109 provides,
in relevant part:“If a case brought
to the Supreme Court by direct appeal
from a district court cannot be heard
and determined because of the absence
of a quorum of qualified justices,
the Chief Justice of the United States
may order it remitted to the court
of appeals for the circuit including
the district in which the case arose,
to be heard and determined by that
court either sitting in banc or specially
constituted and composed of the three
circuit judges senior in commission
who are able to sit, as such order
may direct. The decision
of such court shall be final and conclusive.
In the event of the disqualification
or disability of one or more of such
circuit judges, such court shall be
filled as provided in chapter 15 of
this title.”
The second paragraph of the section
provides that, in all other cases
when a quorum of qualified Justices
is unable to sit, the Court shall
enter an order affirming the judgment
extant, which shall have the precedential
effect of an affirmance by an equally
divided Court.
The original version of this section
was designed to ensure that the parties
in antitrust and Interstate Commerce
Commission cases, which at that time
could be appealed directly to this
Court, would always have some form
of appellate review. See
H.R.Rep.No.1317, 78th Cong., 2d Sess.,
2 (1944). Congress broadened
this right in the 1948 revision of
Title 28 to include all
cases of direct review. H.R.Rep.No.308,
80th Cong., 1st Sess., A175-A176 (1947).
C
Rule
of Necessity
The Rule of Necessity
had its genesis at least five and
a half centuries ago. Its
earliest recorded invocation was in
1430, when it was held that the Chancellor
of Oxford could act as judge of a
case in which he was a party when
there was no provision for appointment
of another judge. Y.B.Hil.
*214 8 Hen.
VI, f. 19, pl. 6. FN14
Early cases in this country
confirmed the vitality of the Rule. FN15
FN14. Rolle's Abridgment
summarized this holding as follows:“If
an action is sued in the bench against
all the Judges there, then by necessity
they shall be their own Judges.” 2
H. Rolle, An Abridgment of Many Cases
and Resolutions at Common Law 93 (1668)
(translation).
The
Rule of Necessity has been consistently
applied in this country in both state
and federal courts. In
State ex rel. Mitchell v. Sage Stores
Co., 157 Kan. 622, 143 P.2d 652
(1943), the Supreme Court of Kansas
observed:
“[I]t is well established
that actual disqualification of a
member of a court of last resort will
not excuse such member from performing
his official duty if failure to do
so would result in a denial of a litigant's
constitutional right to have a question,
properly presented to such court,
adjudicated.” Id.,
at 629, 143 P.2d, at 656.
Similarly,
the Supreme Court of Pennsylvania
held:“The true rule unquestionably
is that wherever it becomes necessary
for a judge to sit even where he has
an interest-where no provision is
made for calling another in, or where
no one else can take his place-it
is his duty to hear and decide, however
disagreeable it may be.” Philadelphia
v. Fox, 64 Pa. 169, 185 (1870).
Other
state
FN16 and federal
FN17 courts also have recognized
the Rule.
FN16.
E. g., Moulton v. Byrd, 224 Ala.
403, 140 So. 384 (1932); Olson
v. Cory, 26 Cal.3d 672, 164 Cal.Rptr.
217, 609 P.2d 991 (1980); Nellius
v. Stiftel, 402 A.2d 359 (Del.1978);
Dacey
v. Connecticut Bar Assn., 170
Conn. 520, 368 A.2d 125 (1976);
Wheeler
v. Board of Trustees of Fargo Consol.
School Dist., 200 Ga. 323, 37
S.E.2d 322 (1946); Schward
v. Ariyoshi, 57 Haw. 348, 555
P.2d 1329 (1976); Higer
v. Hansen, 67 Idaho 45, 170 P.2d
411 (1946); Gordy
v. Dennis, 176 Md. 106, 5 A.2d
69 (1936); State
ex rel. Gardner v. Holm, 241 Minn.
125, 62 N.W.2d 52 (1954);
State
ex rel. West Jersey Traction Co. v.
Board of Public Works, 56 N.J.L.
431, 29 A. 163 (1894);
Long
v. Watts, 183 N.C. 99, 110 S.E.
765 (1922); First
American Bank & Trust Co. v. Ellwein,
221 N.W. 2d 509 (N.D.),
cert. denied,
419 U.S. 1026,
95 S.Ct. 798, 42 L.Ed.2d 816 (1974);
McCoy
v. Handlin, 35 S.D. 487, 153 N.W.
361 (1915); Alamo
Title Co. v. San Antonio Bar Assn.,
360 S.W.2d 814 (Tex.Civ.App.),
writ ref'd, no rev. error (Tex.1962).
FN17.
E. g., Atkins v. United States,
214 Ct.Cl. 186, 556 F.2d 1028 (1977),
cert. denied,
434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d
751 (1978); Pilla
v. American Bar Assn., 542 F.2d
56 (CA8 1976); Brinkley
v. Hassig, 83 F.2d 351 (CA10 1936);
United
States v. Corrigan, 401 F.Supp.
795 (Wyo.1975).
*215
The concept of the absolute duty of
judges to hear and decide cases within
their jurisdiction revealed in Pollack,
supra, and Philadelphia
v. Fox, supra, is reflected in
decisions of this Court. Our
earlier cases **481 dealing
with the Compensation Clause did not
directly involve the compensation
of Justices or name them as parties,
and no express reference to the Rule
is found. See,e.
g., O'Malley v. Woodrough, 307
U.S. 277, 59 S.Ct. 838, 83 L.Ed. 1289
(1939); O'Donoghue
v. United States, 289 U.S. 516,
53 S.Ct. 740, 77 L.Ed. 1356 (1933);
Evans
v. Gore, 253 U.S. 245, 40 S.Ct.
550, 64 L.Ed. 887 (1920).
In Evans, however,
an action brought by an individual
judge in his own behalf, the Court
by clear implication dealt with the
Rule:
“Because
of the individual relation of the
members of this court to the question
..., we cannot but regret that its
solution falls to us ... But
jurisdiction of the present case cannot
be declined or renounced. The
plaintiff was entitled by law to invoke
our decision on the question as respects
his own compensation, in which no
other judge can have any direct personal
interest; and there was no other
appellate tribunal to which under
the law he could go.” Id.,
at 247-248, 40 S.Ct., at 550-551.FN18
FN18. O'Malley cast
doubt on the substantive holding of
Evans, see n.31, infra,
but the fact that the Court reached
the issue indicates that it did not
question this aspect of the Evans
opinion.
*216
It would appear, therefore,
that this Court so took for granted
the continuing validity of the Rule
of Necessity that no express reference
to it or extended discussion of it
was needed.FN19
FN19. In another, not unrelated
context, Chief Justice Marshall's
exposition in
Cohens v. Virginia, 6 Wheat. 264,
5 L.Ed. 257 (1821), could
well have been the explanation of
the Rule of Necessity; he wrote
that a court “must take jurisdiction
if it should. The judiciary
cannot, as the legislature may, avoid
a measure because it approaches the
confines of the constitution. We
cannot pass it by, because it is doubtful.
With whatever doubts,
with whatever difficulties, a case
may be attended, we must decide it,
if it be brought before us. We
have no more right to decline the
exercise of jurisdiction which is
given, than to usurp that which is
not given. The one
or the other would be treason to the
constitution. Questions
may occur which we would gladly avoid;
but we cannot avoid them.” Id.,
at 404 (emphasis added).
D
Limited Purpose of
Section 455
The
objective of
§ 455 was to deal
with the reality of a positive disqualification
by reason of an interest or the appearance
or possible bias. The
House and Senate Reports on
§ 455 reflect a constant
assumption that upon disqualification
of a particular judge, another would
be assigned to the case. For
example:
“[I]f
there is [any] reasonable factual
basis for doubting the judge's impartiality,
he should disqualify himself and
let another judge preside over the
case.” S.Rep.No.93-419,
p. 5 (1973) (emphasis added); H.R.Rep.No.93-1453,
p. 5 (1973) (emphasis added),
U.S.Code Cong. & Admin.News 1974,
pp. 6351, 6355.
The
Reports of the two Houses continued:“The
statutes contain ample authority for
chief judges to assign other judges
to replace either a circuit or district
court judge who become disqualified
[under
§ 455].” S.Rep.No.93-419,
supra, at 7 (emphasis added);
H.R.Rep.No.93-1453,
supra, at 7 (emphasis added),
U.S.Code Cong. & Admin.News 1974,
p. 6357.
*217
The congressional purpose so clearly
expressed in the Reports gives no
hint of altering the ancient Rule
of Necessity, a doctrine that had
not been questioned under prior judicial
disqualification statutes.FN20
The declared purpose of
§ 455 is to guarantee
litigants a fair forum in which they
can pursue their claims. Far
from promoting this purpose, failure
to apply the Rule of Necessity would
have a contrary effect, for without
the Rule, some litigants would be
denied their right to a forum. The
availability of a forum becomes especially
important in these cases. As
this Court has observed elsewhere,
the Compensation Clause **482
is designed to benefit, not the judges
as individuals, but the public interest
in a competent and independent judiciary.
Evans
v. Gore,
supra, at 253, 40 S.Ct., at 553.
The public might be denied
resolution of this crucial matter
if first the District Judge, and now
all the Justices of this Court, were
to ignore the mandate of the Rule
of Necessity and decline to answer
the questions presented. On
balance, the public interest would
not be served by requiring disqualification
under
§ 455.
FN20. See Act of Mar. 3,
1911, ch. 231, §§ 20, 21, 36
Stat. 1090 (current version at
28 U.S.C. §§ 144,
455 (1976 ed. and Supp.
III)). This statute applied
only to district judges, but its existence
demonstrates that the Rule of Necessity
has continued in force side by side
with statutory disqualification standards.
[5] We therefore hold that
§ 455 was not intended
by Congress to alter the time-honored
Rule of Necessity. And
we would not casually infer that the
Legislative and Executive Branches
sought by the enactment of
§ 455 to foreclose
federal courts from exercising “the
province and duty of the judicial
department to say what the law is.”
Marbury
v. Madison, 1 Cranch 137, 177,
2 L.Ed. 60 (1803).
III
The
Compensation Clause
The
Compensation Clause has its roots
in the longstanding Anglo-American
tradition of an independent Judiciary.
A *218 Judiciary
free from control by the Executive
and the Legislature is essential if
there is a right to have claims decided
by judges who are free from potential
domination by other branches of government.
Our Constitution promotes
that independence specifically by
providing:
“The
Judges, both of the supreme and inferior
Courts, shall hold their Offices during
good Behavior, and shall, at stated
Times, receive for their Services,
a Compensation, which shall not be
diminished during their Continuance
in Office.” Art.
III, § 1.
Hamilton,
in The Federalist No. 79, p. 491 (1918)
(emphasis deleted), emphasized the
importance of protecting judicial
compensation:“In the general course
of human nature, a power over a man's
subsistence amounts to a power over
his will.”
The
relationship of judges' compensation
to their independence was by no means
a new idea initiated by the authors
of the Constitution. The
Act of Settlement in 1701, designed
to correct abuses prevalent under
the reign of the Stuart Kings, includes
a provision that, upon the accession
of the successor to then Princess
Anne,
“Judges
Commissions be made Quamdiu se
bene gesserint [during good behavior],
and their Salaries ascertained and
established ....” 12 & 13
Will. III, ch. 2, § III, cl.
7 (1701).
This
English statute is the earliest legislative
acknowledgment that control over the
tenure and compensation of judges
is incompatible with a truly independent
judiciary, free of improper influence
from other forces within government.
Later, Parliament passed,
and the King assented to, a statute
implementing the Act of Settlement
providing that a judge's salary would
not be decreased “so long as the Patents
and Commissions of them, or any of
them respectively, shall *219
continue and remain in force.” 1
Geo. III, ch. 23, § III (1760).
These two statutes were
designed “to maintain both the dignity
and independence of the judges.” 1
W. Blackstone, Commentaries *267.
Originally,
these same protections applied to
colonial judges as well. In
1761, however, the King converted
the tenure of colonial judges to service
at his pleasure.FN21
The interference this change
brought to the administration of justice
in the Colonies soon became one of
the major objections voiced against
the Crown. Indeed, the
Declaration of Independence, in listing
the grievances against the King, complained:
FN21. See, e. g.,
W. Carpenter, Judicial Tenure in the
United States 2-3 (1918).
“He
has made Judges dependent on his Will
alone, for the tenure of their offices,
and the amount and payment of their
salaries.”
Independence won, the colonists did
not forget the reasons that caused
them to separate from the Mother Country.
Thus, when the Framers
met in Philadelphia in 1787 to draft
our organic law, they made certain
that in the judicial articles both
the **483 tenure and the compensation
of judges would be protected from
one of the evils that had brought
on the Revolution and separation.
Madison's
notes of the Constitutional Convention
reveal that the draftsmen first reached
a tentative arrangement whereby the
Congress could neither increase nor
decrease the compensation of judges.
Later, Gouverneur Morris
succeeded in striking the prohibition
on increases; with others, he
believed the Congress should be at
liberty to raise salaries to meet
such contingencies as inflation, a
phenomenon known in that day as it
is in ours. Madison opposed
the change on the ground judges might
tend to defer unduly to the Congress
when that body was considering pay
increases.
*220
The concern for
the ravages of inflation is revealed
in Madison's comment:
“The
variations in the value of money,
may be guarded agst. by taking for
a standard wheat or some other thing
of permanent value.” 2
M. Farrand, The Records of the Federal
Convention of 1787, p. 45 (1911).
Morris
criticized the proposal for overlooking
changes in the state of the economy;
the value of wheat may change,
he said, and leave the judges undercompensated.
The Convention finally
adopted Morris' motion to allow increases
by the Congress, thereby accepting
a limited risk of external influence
in order to accommodate the need to
raise judges' salaries when times
changed.FN22
As Hamilton later explained:
FN22. The rejection of
Madison's suggestion of tying judicial
salaries to the price of some commodity
may have arisen from colonial Virginia's
unsatisfactory experience with a similar
scheme for paying the clergy with
a set amount of tobacco. See
generally L. Gipson, The Coming of
the Revolution, 1763-1775, pp. 46-54
(1954); Scott, The Constitutional
Aspects of the “Parson's Cause,” 31
Pol.Sci.Q. 558 (1916). Although
ultimately the tobacco statutes and
the subsequent cases are more important
as indications of early dissatisfaction
with the Crown, the widespread publicity
surrounding them surely made the Framers
wary of indexing salaries by reference
to some commodity.
“It
will readily be understood, that the
fluctuations in the value of money,
and in the state of society, rendered
a fixed rate of compensation [of judges]
in the Constitution inadmissible.
What might be extravagant
to-day might in half a century become
penurious and inadequate. It
was therefore necessary to leave it
to the discretion of the legislature
to vary its provisions in conformity
to the variations in circumstances;
yet under such restrictions
as to put it out of the power of that
body to change the condition of the
individual for the worse.” The
Federalist No. 79, pp. 491-492 (1818).
This
Court has recognized that the Compensation
Clause *221 also
serves another, related purpose. As
well as promoting judicial independence,
it ensures a prospective judge that,
in abandoning private practice-more
often than not more lucrative than
the bench-the compensation of the
new post will not diminish. Beyond
doubt, such assurance has served to
attract able lawyers to the bench
and thereby enhances the quality of
justice. Evans v. Gore,
253 U.S., at 553; 1 J. Kent,
Commentaries on American Law 276 (1826).
IV
The
four statutes now before us present
an issue never before addressed by
this Court: when, if ever, does
the Compensation Clause prohibit the
Congress from repealing salary increases
that otherwise take effect automatically
pursuant to a formula previously enacted?
We must decide when a
salary increase authorized by Congress
under such a formula “vests”-i.
e., becomes irreversible under
the Compensation Clause. Is
the protection of the Clause first
invoked when the formula is enacted
or when increases take effect
?
A
Appellees
argue that we need not reach this
constitutional question. They
contend that Congress intended these
four statutes do no more than halt
funding for the salary increases
under the Adjustment Act. If,
as appellees contend, the statutes
are appropriations measures that do
not alter substantive law, the increases
in all four years **484 nevertheless
are now in effect and the Government
is obliged to pay them; it has
simply to authorize that payment.
Accordingly, appellees
submit, these congressional actions
violate the Compensation Clause regardless
of whether Congress could have rescinded
increases previously passed.
[6][7]
As a general rule, “repeals by implication
are not favored.” Posadas
v. National City Bank, 296 U.S.
497, 503, 56 S.Ct. 349, 352, 80 L.Ed.
351 (1936). See also
TVA v. Hill, 437 U.S. 153, 189,
98 S.Ct. 2279, 2299, 57 L.Ed.2d 117
(1978), and
Morton v. Mancari, 417 U.S. 535,
549, 94 S.Ct. 2474, 2482, 41 L.Ed.2d
290 (1974). This rule
applies *222 with especial
force when the provision advanced
as the repealing measure was enacted
in an appropriations bill. TVA
v. Hill, supra, at 190, 98 S.Ct.,
at 2299. Indeed, the
rules of both Houses limit the ability
to change substantive law through
appropriations measures. See
Senate Standing Rule XVI(4); House
of Representatives Rule XXI(2). Nevertheless,
when Congress desires to suspend or
repeal a statute in force, “[t]here
can be no doubt that ... it could
accomplish its purpose by an amendment
to an appropriation bill, or otherwise.”
United
States v. Dickerson, 310 U.S.
554, 555, 60 S.Ct. 1034, 1035, 84
L.Ed. 1356 (1940). “The
whole question depends on the intention
of Congress as expressed in the statutes.”
United
States v. Mitchell, 109 U.S. 146,
150, 3 S.Ct. 151, 153, 27 L.Ed. 887
(1883). See also
Belknap v. United States, 150
U.S. 588, 594, 14 S.Ct. 183, 185,
37 L.Ed. 1191 (1893). FN23
FN23. Indeed, in both Mitchell
and Belknap, the Court held
that provisions in appropriations
statutes funding certain officials'
salaries at amounts below those established
under previous statutes operated to
repeal the relevant provisions of
those statutes and set new salary
levels.
[8] In the cases now before
us, we conclude that in each of the
four years in question Congress intended
to repeal or postpone previously authorized
increases. In the statute
for Year 2, Congress expressly stated
that the Adjustment Act increase due
the following October “shall not take
effect.” Pub.L.
95-66, 91 Stat. 270. Thus,
the plain words of the statute reveal
an intention to repeal the Adjustment
Act insofar as it would increase salaries
in October 1977. This
reading finds support in the House
Report on the bill, which repeatedly
uses language such as “eliminate the
expected October 1977 comparability
adjustment.” See
H.R.Rep.No.95-458, pp. 1, 3
(1977), U.S.Code Cong. & Admin.News
1977, p. 466. The floor
remarks of Senators and Representatives
confirm that this construction was
generally understood. FN24
FN24. See e. g.,
123 Cong.Rec. 7095 (1977) (remarks
of Sen. Byrd) (“salaries .. shall
not be increased ... thus obviat[ing]
the effect of the comparability pay
provisions”); ibid. (remarks
of Sen. Baker) (“forgo and rescind
that adjustment”); id.,
at 21121 (remarks of Rep. Solarz)
(“knock[s] out the comparability increase
for this year”); id.,
at 21125 (remarks of Rep. Ammerman)
(“deny the October 1 cost-of-living
pay increase”).
*223 The statutes in Years
1, 3, and 4, although phrased in terms
of limiting funds, see supra,
at 476-477, nevertheless were intended
by Congress to block the increases
the Adjustment Act otherwise would
generate. Representative
Shipley introduced the rider in relation
to Year 1 to “preven[t] the automatic
cost-of-living pay increase ....”
122 Cong.Rec. 28872 (1976).
FN25 Floor remarks in both
Houses reflected this view. FN26
**485 In Year 3, the
House Report characterized the statute
as a “change [in] the application
of existing law,” H.R.Rep.No.95-1254,
p. 31 (1978), and described its effect
as creating a one-year “pay freeze,”
id., at 35. The
Senate Report *224 stated
that the statute would “continu [e]
... the so called ‘cap’ ” on salaries
for the next fiscal year. S.Rep.No.95-1024,
p. 50 (1978). Floor debate
once again expressed agreement with
this construction.
FN27 The House Report on
the statute for Year 4 characterized
it as “reduc [ing] Federal executive
pay increases from the mandatory entitlement
of 12.9 per centum to 5.5 per centum.”
H.R.Rep.No.96-500,
p. 7 1979). The Report
referred to the bill as a change in
existing law. See id.,
at 3. Later the Conference Report
stated that the statute “restricts
Cost-of-Living increases to 5.5 percent”
for the fiscal year just begun. H.R.Conf.Rep.No.96-513,
p. 3 (1979). The floor
debates also confirm this understanding.
FN28
FN25. Representative Shipley's
original amendment applied only to
Members of the House of Representatives.
The provision was expanded
to cover all officials subject to
the Salary Act. See 122
Cong.Rec. 28877 (1976). The
Senate Committee studying the bill
recommended the provision be deleted
altogether, see S.Rep.No.94-1201,
p. 2 (1976), but the Senate ultimately
passed a version applying the freeze
to all Members of Congress, see 122
Cong.Rec. 29132-29133 (1976). The
Conference Committee recommended that
the freeze apply to all Salary Act
positions, see H.R.Conf.Rep.No.94-1559,
p. 3 (1976). This recommendation
prevailed.
FN26. See, e. g.,
122 Cong.Rec. 28865 (1976) (remarks
of Rep. Armstrong) (a “freeze of the
salaries”); ibid. (remarks
of Rep. Yates) (“freeze the salaries”);
ibid. (remarks of Rep.
McClory) (“effectively eliminate the
... cost-of-living increases”); id.,
at 28870 (remarks of Rep. Derwinski)
(“freezing .. pay at its current level”);
id., at 28871 (remarks
of Rep. Miller) (“stopping the pay
raise”); id., at 28879
(remarks of Rep. Anderson) (“block
a cost-of-living pay increase”); id.,
at 29132 (remarks of Sen. Taft) (“effectively
freeze those salaries-the employees
would not be given a cost-of-living
raise on October 1, or a salary increase”);
id., at 29164 (remarks
of Sen. Allen) (“freezing the compensation”);
id., at 29172 (remarks
of Sen. Allen) (“denied the upcoming
increase”; “salaries frozen
at the September 30, 1976, level”);
id., at 29372 (remarks
of Sen. Bartlett) (“automatic pay
raises ... eliminated”); id.,
at 31892 (remarks of Rep. Shipley)
(“no October cost-of-living increases
would be made”; bill “proscribe[s]
.. the October cost-of-living pay
increase[s]”); id., at
31896 (remarks of Rep. Riegle) (“elimination
of the cost-of-living raise”).
FN27. See, e. g.,
124 Cong.Rec. 17603 (1978) (remarks
of Rep. Shipley) (“pay freeze”); id.,
at 17604 (remarks of Rep. Armstrong)
(“automatic cost-of-living increases
will not be permitted”); id.,
at 24375 (remarks of Sen. Sasser)
(“freeze, during fiscal year 1979,
the pay”).
FN28. See e. g.,
125 Cong.Rec. 27532 (1979) (remarks
of Rep. Whitten) (“sharply decreas[es]
such automatic increases”); id.,
at 27533 (remarks of Rep. Jacobs)
(“rollback of the automatic 12.9-percent
salary increase”); id.,
at 28019 (remarks of Sen. Byrd) (“put
a cap on that pay increase”); id.,
at 28020 (remarks of Sen. Magnuson)
(“this is in the nature of a cap,
a limitation”); id.,
at 28108 (remarks of Rep. Conte) (“reduces
from 12.9 to 5.5 percent the increase
in pay”).
These
passages indicate clearly that Congress
intended to rescind these raises entirely,
not simply to consign them to the
fiscal limbo of an account due but
not payable. The clear
intent of Congress in each year was
to stop for that year the application
of the Adjustment Act. The
issue thus resolves itself into whether
Congress could do so without violating
the Compensation Clause.
B
Year
1
[9] The statute applying
to Year 1 was signed by the President
during the business day of October
1, 1976. By that time,
the 4.8% increase under the Adjustment
Act already had *225
taken effect, since it was operative
with the start of the month-and the
new fiscal year-at the beginning of
the day. The statute became
law only upon the President's signing
it on October 1; it therefore
purported to repeal a salary increase
already in force. Thus
it “diminished” the compensation of
federal judges. FN29
FN29. The Government asks
us to invoke the rule that the law
does not recognize fractions of a
day, see,
e. g., Lapeyre v. United States,
17 Wall. 191, 21 L.Ed. 606 (1873);
it is argued that we should
treat the President's assent as having
been given at the start of October
1, the same time the Year 1 increase
was to take effect. It
is correct that “the law generally
reject[s] all fractions of a day,
in order to avoid disputes.” 2
W. Blackstone, Commentaries * 141.
Here, however, the Government
acknowledges that the statute was
signed by the President after
the Year 1 increase had taken effect.
This Court, almost a century
ago, stated: “
‘[W]henever it becomes important to
the ends of justice, or in order to
decide upon conflicting interests,
the law will look into fractions of
a day, as readily as into the fractions
of any other unit of time. The
rule is purely one of convenience,
which must give way whenever the rights
of parties require it.... The
law is not made of such unreasonable
and arbitrary rules.’ ” Louisville
v. Savings Bank, 104 U.S. 469,
474-475, 26 L.Ed. 775 (1881)
(quoting
Grosvenor v. Magill, 37 Ill. 239,
240-241 (1865); citations
omitted).
Accord, Combe v. Pitt, 3 Burr.
1423, 97 Eng.Rep. 907 (K.B.1763);
2 C. Sands, Sutherland on Statutory
Construction § 33.10 (4th ed.
1973).
In
Burgess v. Salmon, 97 U.S. 381,
24 L.Ed. 1104 (1878), this
Court was required to look to the
time of day when a statute was enacted
as compared to another and related
event. This Court held
that, notwithstanding the general
rule, a person could not be subjected
to a civil fine for violating a statute
passed on the same day he engaged
in the conduct but after that conduct
had occurred. To impose
a penalty on an act innocent when
performed would render the statute
an ex post facto law. Id.,
at 384-385. Thus
Burgess dealt not so much with
benefits and penalties as it did with
constitutional limitations on the
legislative authority of Congress
and the Executive. In
the context of periodic increases,
the Compensation Clause, like the
Ex Post Facto Clause of Art.
I, § 9, places limits on Congress
and the President. Because
of the constitutional implications,
the logic of Burgess applies
to the statute for Year 1 and requires
us to look to the precise time the
statute became law by the President's
action.
*226 **486 The Government
contends that Congress could reduce
compensation as long as it did not
“discriminate” against judges, as
such, during the process. That
the “freeze” applied to various officials
in the Legislative and the Executive
Branches, as well as judges, does
not save the statute, however. This
is quite different from the situation
in
O'Malley v. Woodrough, 307 U.S.
277, 59 S.Ct. 838, 83 L.Ed. 1289 (1939).
There the Court held that
the Compensation Clause was not offended
by an income tax levied on
Article III judges as well
as on all taxpayers; there was
no discrimination against the plaintiff
judge. Federal judges,
like all citizens, must share “the
material burden of the government
....” Id.,
at 282, 59 S.Ct., at 840.
The inclusion in the freeze
of other officials who are not protected
by the Compensation Clause does not
insulate a direct diminution in judges'
salaries from the clear mandate of
that Clause; the Constitution
makes no exceptions for “nondiscriminatory”
reductions. FN30
Accordingly, we hold that the
statute with respect to Year 1, as
applied to compensation of members
of the certified class, violates the
Compensation Clause of
Art. III.
Year
2
Unlike the statute
for Year 1, the statute for Year 2
was signed by the President before
October 1, when the 7.1% raise under
the Comparability Act was due to take
effect. Year 2 thus confronts
us squarely with the question of whether
Congress may, before the effective
date of a salary increase, rescind
such an increase scheduled to take
effect at a later date. The
District Court held that by including
an annual cost-of-living adjustment
in the statutory definitions of the
salaries of
Article III judges, see
supra, at 475, and n. 2, Congress
made the annual adjustment, from that
moment on, *227 a part
of judges' compensation for constitutional
purposes. Subsequent action
reducing those adjustments “diminishes”
compensation within the meaning of
the Compensation Clause. Relying
on
Evans v. Gore, 253 U.S., at 254,
40 S.Ct., at 553, the District
Court held that such action reduces
the amount “a judge ... has been promised,”
and all amounts thus promised fall
within the protection of the Clause.
We are unable to agree with
the District Court's analysis and
result. Our discussion
of the Framers' debates over the Compensation
Clause, supra, at 483, led
to a conclusion that the Compensation
Clause does not erect an absolute
ban on all legislation that conceivably
could have an adverse effect on compensation
of judges. FN31
Rather, that provision embodies
a clear rule prohibiting decreases
but allowing increases, a practical
**487 balancing by the Framers
of the need to increase compensation
to meet economic changes, such as
substantial inflation, against the
need for judges to be free from undue
congressional influence. The
Constitution delegated to Congress
the discretion to fix salaries and
of necessity placed faith in the integrity
and sound judgment of the elected
representatives to enact increases
when changing conditions demand.
FN31. In
O'Malley v. Woodrough, 307 U.S.
277, 59 S.Ct. 838, 83 L.Ed. 1289 (1939),
this Court held that the immunity
in the Compensation Clause would not
extend to exempting judges from paying
taxes, a duty shared by all citizens.
The Court thus recognized
that the Compensation Clause does
not forbid everything that might adversely
affect judges. The opinion
concluded by saying that to the extent
Miles v. Graham, 268 U.S. 501,
45 S.Ct. 601, 69 L.Ed. 1067 (1925),
was inconsistent, it “cannot survive.”
307
U.S., at 282-283, 59 S.Ct., at 840.
Because Miles relied
on Evans v. Gore, O'Malley
must also be read to undermine the
reasoning of Evans, on which
the District Court relied in reaching
its decision.
Congress enacted
the Adjustment Act based on this delegated
power to fix and, periodically, increase
judicial compensation. It
did not thereby alter the compensation
of judges; it modified only
the formula for determining
that compensation. Later,
Congress decided to abandon the formula *228
as to the particular years
in question. For Year
2, as opposed to Year 1, the statute
was passed before the Adjustment Act
increases had taken effect-before
they had become a part of the compensation
due
Article III judges. Thus,
the departure from the Adjustment
Act policy in no sense diminished
the compensation
Article III judges were
receiving; it refused only to
apply a previously enacted formula. FN32
FN32. United States
v. More (CC DC 1803), writ of
error dism'd for want of jurisdiction,
3 Cranch 159, 2 L.Ed. 397 (1805),
is not to the contrary. Congress
had enacted a system of fees for compensating
justices of the peace in the District
of Columbia but subsequently abolished
the fees. The Government
brought an indictment against a justice
of the peace who had continued to
charge the fees, and the defendant
demurred. The Circuit
Court for the District of Columbia
held that the compensation of justices
of the peace in the District of Columbia
was subject to the Compensation Clause
and that a statute diminishing (here,
abolishing) the fees violated the
Constitution. Id.,
at 161 n. In
More, the fee system was already
in place as part of the justices'
compensation when Congress repealed
it. Here, by contrast,
the increase in Year 2 had not yet
become part of the compensation of
Article III judges when
the statute repealing it was passed
and signed by the President.
[10][11]
A paramount-indeed, an indispensable-ingredient
of the concept of powers delegated
to coequal branches is that each branch
must recognize and respect the limits
on its own authority and the boundaries
of the authority delegated to the
other branches. To say
that the Congress could not alter
a method of calculating salaries before
it was executed would mean the Judicial
Branch could command Congress to carry
out an announced future intent as
to a decision the Constitution vests
exclusively in the Congress. FN33
We therefore conclude *229
that a salary increase “vests”
for purposes of the Compensation Clause
only when it takes effect as part
of the compensation due and payable
to
Article III judges. With
regard to Year 2, we hold that the
Compensation Clause did not prohibit
Congress from repealing the planned
but not yet effective cost-of-living
adjustment of October 1, 1977, when
it did so before October 1, the time
it first was scheduled to become part
of judges' compensation. The
statute in Year 2 thus represents
a constitutionally valid exercise
of legislative authority.
FN33. Indeed, it would
be particularly ironic if we were
to bind Congress to an indexing scheme
for salaries when the Framers themselves
rejected an indexing proposal. See
supra, at 483. Of
course, indexing techniques have improved
since 1787. Nevertheless,
Congress' repeated rejections of specific
adjustments indicates some dissatisfaction
with automatic adjustments according
to a predetermined formula, even if
not with the formula itself.
Year
3
For our purposes,
the legal issues presented by the
statute in Year 3 are indistinguishable
from those in Year 2. Each
statute eliminated-before October
1-the Adjustment Act salary increases
contemplated but not yet implemented.
Each statute was passed
and signed by the President before
the Adjustment Act increases took
effect, in the case of Year 3, on
September 30. For the
reasons set forth in our discussion
of the issues for Year 2, we hold
that the statute in Year 3 did not
violate the Compensation Clause.
Year
4
Before reaching
the constitutional issues implicated
in Year 4, we must resolve a **488
problem of statutory construction.
On its face, the statute
in year 4 applies in terms to “executive
employees, which includes Members
of Congress.” See supra,
at 477. It does not expressly
mention judges. Appellees
contend that even if Congress constitutionally
could freeze the salaries of
Article III judges, it
did not do so in this statute.
[12] We are satisfied that
Congress' use of the phrase “executive
employees,” in context, was intended
to include
Article III judges. The
full title of the Adjustment Act is
the Executive Salary Cost-of-Living
Adjustment Act, but it is clear that
it was intended to apply to officials
in the Legislative and the *230
Judicial Branches as well. FN34
The title does not control over
the terms of the statute. The
statutes in the three preceding years
undeniably applied to judges, and
we can discern no indication that
the Congress chose to single them
out for an exemption when it was including
Executive and Legislative officials.
Most important, both the
Conference Report and the Chairman
of the House Appropriations Committee,
speaking on the floor, made explicit
what already was implicit: the
limiting statute would apply to judges
as well. See H.R.Conf.Rep.No.96-513,
p. 3 (1979); 125 Cong.Rec. 27530,
27532 (1979) (remarks of Rep. Whitten).
FN35
FN34. Most positions covered,
of course, are in the Executive Branch,
which may explain the limited title.
FN35. Several Members of Congress
acknowledged the potential constitutional
problem with rolling back the salary
increase already in effect for judges.
See 125 Cong.Rec. 27529-27530
(1979) (remarks of Rep. Latta); id.,
at 27531-27533 (remarks of Rep. Whitten);
id., at 27533 (remarks
of Rep. Jacobs); id.,
at 28022 (remarks of Sen. Stevens).
Representative Whitten,
the Chairman of the House of Appropriations
Committee, stated that “the courts
will have to make a final determination
regarding this issue.” Id.,
at 27532.
Having concluded
that the statute in Year 4 was intended
to apply to judges as well as other
high-level federal officials, we are
confronted with a situation similar
to that in Year 1. Here
again, the statute purported to revoke
an increase in judges' compensation
after those statutes had taken
effect. For the reasons
governing the statute as to Year 1,
we hold that the statute revoking
the increase for Year 4 violated the
Compensation Clause insofar as it
applied to members of the certified
class.
V The District
Court has not yet calculated the precise
dollar amounts involved in Years 1
and 4, the years in which we hold
the statutes violated the Compensation
Clause. Further proceedings
are required to resolve these questions.
Accordingly, the judgment
of the District Court in No. 79-983
*231 is affirmed in part
and reversed in part, the judgment
in No. 79-1689 is affirmed in part
and reversed in part, and the cases
are remanded for further proceedings
consistent with this opinion.
It
is so ordered.
Justice
BLACKMUN took no part in the decision
of these cases.
U.S.Ill.,1980.
U.
S. v. Will
449
U.S. 200, 101 S.Ct. 471, 66 L.Ed.2d
392
Briefs
and Other Related Documents
(Back to top)
•
1980 WL 339276 (Appellate Brief)
Brief Amicus Curiae of the Washington
State Bar Association Supporting Appellees
(Oct. 09, 1980)
•
1980 WL 339274 (Appellate Brief)
Brief of Amicus Curiae Los Angeles
County Bar Association in Support
of Appellees (Aug. 18, 1980)
•
1980 WL 339267 (Appellate Brief)
Brief for the Appellees (Aug. 15,
1980)
•
1980 WL 339272 (Appellate Brief)
Brief Amicus Curiae of the Chicago
Bar Association Supporting Appellees
(Aug. 15, 1980)
•
1980 WL 339269 (Appellate Brief)
Brief Amicus Curiae on Behalf of the
American Bar Association in Support
of Appellees (Jul. 28, 1980)
•
1980 WL 339264 (Appellate Brief)
Brief for the United States (Jun.
28, 1980)
END
OF DOCUMENT
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