Will v. U.S. Jurisdiction of Supreme Court over
judges compensation |
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449 U.S. 200, 101 S.Ct. 471, 66 L.Ed.2d 392 |
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(Cite as: 449 U.S. 200, 101 S.Ct. 471) |
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Briefs and Other Related Document
Supreme
Court of the United States
UNITED
STATES, Appellant,
v.
Hubert
L. WILL et al.
UNITED
STATES, Appellant,
v.
Hubert
L. WILL et al.
Nos.
79-983, 79-1689.
Argued
Oct. 13, 1980.
Decided
Dec. 15, 1980.
Thirteen
federal district court judges brought suit challenging validity of
statutes enacted in years one and two which reduced compensation
allegedly due them. The District Court,
478 F.Supp. 621, granted plaintiffs' motion for summary
judgment, and the Government appealed. Appeal was consolidated with
summary judgment for plaintiffs entered in the same court, in cases
arising out of statutes passed in years three and four. The Supreme
Court, Chief Justice Burger, held that: (1) Supreme Court had
jurisdiction of appeals; (2) District Court had jurisdiction over
actions; (3) disqualification was not required, since all Article III
judges had an interest in the outcome, and thus, common-law Rule of
Necessity prevailed; (4) 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 consign such increases
to fiscal limbo of an account due but not payable; (5) statute in year
one purported to repeal a salary increase already in force and thus
“diminished” compensation of federal judges in violation of Compensation
Clause; (6) statutes applying to years two and three became law before
scheduled increases for federal judges had taken effect, and thus, in no
sense diminished compensation Article III judges were receiving; and
(7) Congress intended to include Article III judges in statute applying
to year four, and since such statute similarly purported to revoke
increase in judge's compensation after statutes granting increase had
taken effect, it violated Compensation Clause.
Affirmed in
part, reversed in part, and remanded.
West
Headnotes
[1] Federal Courts
170B
476
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.
FN2. See
28 U.S.C. § 5 (the Chief Justice and each Associate Justice
of the Supreme Court); 28
U.S.C. § 44(d) (circuit judges); 28
U.S.C. § 173 (Court of Claims); 28
U.S.C. § 213 (Court of Customs and Patent Appeals); 28
U.S.C. § 252 (Court of International Trade (formerly Customs
Court)).
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:
“(3)
section 461 of title 28, United States Code, relating to
comparability adjustments in the salary and rate of pay of justices,
judges, commissioners, and referees ....”
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.
In an
opinion filed August 29, 1979, the District Court granted summary
judgment for the plaintiffs, appellees here. 478
F.Supp. 621. A corresponding judgment order was entered
September 24. On appeal by the Government, we postponed decision on
jurisdiction to the hearing on the merits and directed the parties to
address the effect of
28 U.S.C. § 455, if any, on the jurisdiction of the
District Court and this Court. 444 U.S. 1068, 100 S.Ct. 1010, 62
L.Ed.2d 749 (1980).
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).
FN15. For example, in
Mooers v. White, 6 Johns.Ch. 360 (N.Y.1822), Chancellor
Kent continued to sit despite his brother-in-law's being a party; New
York law made no provision for a substitute chancellor. See
In re Leefe, 2 Barb.Ch. 39 (N.Y.1846). See also cases
cited in Annot.,
39 A.L.R. 1476 (1925).
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.
FN30. We need not address the question of whether evidence of
an intent to influence the Judiciary would invalidate a statute that on
its face does not directly reduce judicial compensation. See
Evans v. Gore, 253 U.S. 245, 252, 40 S.Ct. 550, 552, 64 L.Ed. 887
(1920).
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
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