Appendix — Williams, Judge, United States District Court for the Northern District of California v. United States
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Supreme Court of the United States
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SPENCER WILLIAMS, LOUIS C. BECHTLE,
SANDRA S. BECKWITH, WILLIAM MATTHEW BYRNE,
JR., ADRIAN G. DUPLANTIER, MORRIS E. LASKER,
THOMAS COLLIER PLATT, JR., JOHN W. REYNOLDS,
WALTER HERBERT RICE, MARVIN H. SHOOB,
JOSEPH L. TAURO, LAUGHLIN E. WATERS,
LEE R. WEST AND HENRY RUPERT WILHOIT, JR.,
Petitioners,
UNITED STATES OF AMERICA,
Respondent.
>
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Federal Circuit
+
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
¢
Kevin M. Forpe*
RICHARD J. PRENDERGAST
Janice R. Forpe
Kevin R. MALLoy
Kevin M. Forpe, Ltp.
RICHARD J. PRENDERGAST, LTD.
111 West Washington Street, Suite 1100
Chicago, IL 60602
(312) 641-1441
Attorneys for Petitioners
*Counsel of Record
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
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INDEX OF APPENDIX
OPINIONS AND Orpers BELOW
Court of Appeals Opinion Reversing District
Court Judgment (Fed. Cir. Feb. 16, 2001)...... App. 1
Dissent from Court of Appeals Opinion Reversing
District Court Judgment (Plager, J., Feb. 16,
PUNE ro csc ccvecesucescadesicccesesebbosecanes App. 42
District Court Order Certifying Plaintiff Class,
No. 97 CV 3106 (D.D.C. Aug. 20, 1998)..... App. 100
District Court Opinion Granting Summary Judg-
ment for Plaintiffs, No. 97 CV 3106 (D.D.C. July
Bab CEUED sesncvcdvcccsetccssecececéuncebases App. 103
District Court Order Granting Summary Judg-
ment for Plaintiffs, No. 97 CV 3106 (D.D.C. July
Bp DOOOP ec ccencaccssevesctuerssenvencesaesd App. 132
District Court Order Awarding Prejudgment Inter-
est to Plaintiffs, No. 97 CV 3106 (D.D.C. Dec. 29,
eee reccessesenseus bavesccessccseuesdavaped App. 134
District Court Order Granting Summary Judg-
ment for Plaintiffs, No. 99-1982 (D.D.C. Dec. 29,
MONS e sco cccdacésensenevvasetnenesnesdusesds App. 136
District Court Memorandum Opinion Awarding
Prejudgment Interest to Plaintiffs, No. 97 CV
3106 (D.D.C. Jan. 12, 2000) ................. App. 138
District Court Memorandum Opinion Granting
Summary Judgment for Plaintiffs, No. 99 CV
1982 (D.D.C. Jan. 13, 2000) ................. App. 144
Court of Appeals’ Order Denying Initial Hearing
En Banc (Fed. Cir. Feb. 16, 2001)............ App. 149
ii
INDEX OF APPENDIX - continued
Dissenting Opinion on Court of Appeals’ Order
Denying Initial Hearing En Banc (Mayer, C.J.,
Se esc eieseseeeseevese App.
Dissenting Opinion on Court of Appeals’ Order
Denying Initial Hearing En Banc (Newman, J.,
Nees cs cusseesseei App.
Concurring Opinion on Court of Appeals’ Order
Denying Initial Hearing En Banc (Clevenger &
eee ED errr App.
Court of Appeals Order Denying Plaintiffs’ Peti-
tion For Rehearing and Suggestion For Rehear-
ing En Banc (Fed. Cir., Apr. 30, 2001)....... App.
Court of Appeals Order Denying Plaintiffs’
Motion for Leave to File a Second Petition for
Rehearing and Suggestion For Rehearing En
Banc (Fed. Cir. May 29, 2001)............... App.
STATUTES
Ethics Reform Act § 601, 103 Stat. 1760-62 (cod-
ified at 5 U.S.C. app., §§ 501, 502).......... App.
Ethics Reform Act § 703, 103 Stat. 1768 (codified at
5 US.C. § 5318 note)........ccccccscccceeee App.
Ethics Reform Act § 704(a)(1), 103 Stat. 1769 (cod-
ified at 5 U.S.C. § 5318 note)............... App.
Ethics Reform Act § 704(a)(2)(A), 103 Stat. 1769
(codified at 28 U.S.C. § 461(a)) ............. App.
Ethics Reform Act § 704(b), 103 Stat. 1769 (cod-
ified at 28 U.S.C. § 5318 note).............. App.
Ethics Reform Act § 705, 103 Stat. 1770-71 (cod-
ified at 28 U.S.C. § 371).......... eee ee eens App.
151
159
163
165
167
169
171
173
174
175
175
INDEX OF APPENDIX - continued
Treasury, Postal and General Government Appro-
priations Act of 1995, Pub. L. No. 103-329, § 630,
108 Stat. 2382, 2424 (1994)...............05. App. 179
Treasury, Postal and General Government Appro-
priations Act of 1996, Pub. L. No. 104-52, § 633,
109 Stat. 468, 507 (1995) ............ cece ees App. 179
Treasury, Postal Service, and General Government
Appropriations Act of 1997, Pub. L. No.
104-208, § 637, 100 Stat. 3009-364 (1996)..... App. 179
Treasury, Postal and General Government Appro-
priations Act of 1999, Pub. L. No. 105-277, § 621,
112 Stat. 2681-518 (1998)...............0c0e. App. 180
PLEADINGS BELOW
Plaintiffs’ Complaint (excerpts), No. 97 CV 3106
CDG. Dae. 27, BGGF) once cccccccccccccccecs App. 181
| Me epee Fe
App. 1
United States Court of Appeals for the Federal Circuit
99-1572, 00-1254, -1255
SPENCER WILLIAMS, AUBREY E. ROBINSON, JR.,
C. CLYDE ATKINS, LOUIS C. BECHTLE, SANDRA S.
BECKWITH, LUCIUS D. BUNTON, III, WILLIAM M.
BYRNE, JR., ADRIAN G. DUPLANTIER, IRVING HILL,
MORRIS E. LASKER, THOMAS C. PLATT, JR.,
JOHN W. REYNOLDS, WALTER H. RICE,
MARVIN H. SHOOB, JOSEPH L. TAURO, LAUGHLIN E.
WATERS, LEE R. WEST, CHARLES WIGGINS, and
HENRY R. WILHOIT, JR.
Plaintiffs-Appellees,
v.
UNITED STATES,
Defendant-Appellant.
DECIDED: February 16, 2001
Before CLEVENGER, Circuit Judge, PLAGER, Senior Cir-
cuit Judge,* and GAJARSA, Circuit Judge.
Opinion for the court filed by Circuit Judge CLEVENGER.
Dissenting Opinion filed by Senior Circuit Judge PLAGER.
CLEVENGER, Circuit Judge.
The United States appeals from the decision of the
United States District Court for the District of Columbia
holding that Plaintiffs Spencer Williams, et al. (“the
* Judge Plager assumed senior status on November 30,
2000.
App. 2
Judges”) are entitled to back pay and future cost-of-living
pay increases under the Ethics Reform Act of 1989. See
Williams v. United States, 48 F. Supp. 2d. 52, 65 (1999). In
the four years involved in this case, Congress enacted
legislation providing cost-of-living pay increases for fed-
eral employees, including federal judges, with the
increases payable the following January 1. But in each of
those years, Congress also enacted specific legislation,
before the end of the year, which denied such pay
increases to federal judges, while allowing the increase to
be paid to other federal employees. Ruling in favor of
Plaintiffs, the district court held that the statutes which
denied the pay increases to federal judges violate section
1 of Article III of the United States Constitution, a provi-
sion that bars Congress from diminishing the compensa-
tion of federal judges. Because clear and unavoidable
precedent from the Supreme Court permits Congress to
block planned increases in the compensation of federal
judges, so long as the blocking statutes are enacted before
the planned increases become due and payable to federal
judges, the district court erred. We reverse the judgment
of the district court, and remand the case with instruc-
tions to enter judgment in favor of the United States.
I
In 1989, the Ethics Reform Act, Pub. L. No. 101-194,
103 Stat. 1716 (“the 1989 Act”), put in place a system by
which federal judges, under certain circumstances, were
to obtain, beginning in 1991, yearly cost-of-living pay
increases (“COLAs”). The COLA pyovisions of the 1989
Act were but one part of a host of important reforms. Key
reforms of the 1989 Act included extension of post-
App. 3
employment “revolving door” restrictions to the legisla-
tive and executive branches, a ban on receipt of honoraria
by all federal employees (except members of the Senate),
limitation on the outside income for employees in all
three branches to avoid any appearance of unethical
behavior, increased financial disclosure by federal
employees, limitations on gifts and travel, creation of
conflict-of-interest rules for legislative branch staff, and,
of course, important adjustments to compensation for all
three branches. Federal judges received significant
increases in base pay, to make up for the adverse effect of
inflation on previous levels of base pay and to catch up
for COLAs previously withheld from the federal judges
by Congress. See Statement by President of the United
States Upon Signing of H.R. 3660, 1989 U.S.C.C.A.N. 1225
(synopsizing key features of the 1989 Act).
Pursuant to the 1989 Act, once a determination was
made by Congress in a given year that a COLA would be
paid to federal employees on the General Schedule, a
COLA became payable to federal judges. See 28 U.S.C.
§ 461 (1994) (adjusting judicial pay “[e]ffective at the
beginning of the first applicable pay period commencing
on or after the first day of the month in which an adjust-
ment takes effect under section 5303 of title 5 in the rates
of pay under the General Schedule”). The increases
would take effect - that is, they would be payable -
starting on the first day of the following calendar year.
See id.; 5 U.S.C. § 5303(a) (1994) (increases are “[e]ffective
as of the first day of the first applicable pay period
beginning on or after January 1 of each calendar year”).
This procedure began in 1991. See Pub. L. No. 101-194,
§ 704(b). 103 Stat. 1716, 1769. In January of 1991, 1992 and
App. 4
1993, federal judges received COLAs. For 1994, Congress
awarded no COLA to the General Schedule, and conse-
quently none became payable to federal judges on Janu-
ary 1 of that year.
For 1995, 1996, 1997, and 1999, such automatic COLA
pay increases were set to go into effect for General Sched-
ule employees and federal judges, as of the first day of
the calendar year. But for those years, to the disappoint-
ment of the federal judges, the Congress passed separate
laws, and the President signed them into effect, that
expressly barred the payment of the COLAs to federal
judges. See Pub. L. No. 103-329, § 630(a)(2), 108 Stat. 2382,
2424 (1994), Pub. L. No. 104-52, § 633, 109 Stat. 468, 507
(1995), Pub. L. No. 104-208, § 637, 110 Stat. 3009, 3009-364
(1996), Pub. L. No. 105-277, § 621, 112 Stat. 2681, 2681-518
(1998). Each of those “blocking” acts became law before
the January 1 effective date of the COLA pay increases.
The Judges responded by bringing this class action
lawsuit in the United States District Court for the District
of Columbia. Their suit alleges that the deprivation of the
pay increases, as a result of Congress’ blocking acts,
violates Article III of the United States Constitution. Arti-
cle III, of course, protects judicial compensation: “The
Judges .. . shall, at stated Times, receive for their Ser-
vices, a Compensation, which shall not be diminished
during their Continuance in Office.” U.S. Const., art. III,
§ 1. The history of this provision, and its significance to
the functioning of an independent federal judiciary, has
been recounted eloquently and at length elsewhere, and
need not be repeated here. See, e.g., Evans v. Gore, 253 U.S.
245, 249-54 (1920); United States v. Will, 449 U.S. 200,
217-21 (1980).
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App. 5
The theory of the Judges’ suit is that Congress
“diminished” judicial compensation by specifically deny-
ing federal judges the COLA raises that would have been
paid under the statutory scheme of the 1989 Act, but for
the acts of Congress that nullified the otherwise auto-
matic increases. The asserted logic of this theory is that
the judicial COLA increases became vested - that is, the
Judges became entitled to them for later dates of receipt -
before the dates that Congress acted to block them. The
Judges thus allege that the laws depriving them of the
COLAs are void as unconstitutional under Article III,
section 1, and that they are therefore entitled to the
COLAs, in the form of back pay and a current increase in
salary. The Judges also request a declaration that the
COLA provisions of the 1989 Act must be followed in
future years.
The district court, on cross-motions for summary
judgment, held in favor of the Judges, ruling that “[t]he
Ethics Reform Act granted federal judges a COLA
... adjustment, effective at the time of the enactment of
the Act in 1989.” See Williams, 48 F. Supp. 2d at 59.
Because it considered the COLAs to have become “part of
the compensation due and payable to Article III judges,”
id. at 59 (citation omitted), on the date that the 1989 Act
became law, the district court granted monetary judg-
ment in favor of the Judges and ordered the government
to award COLAs to federal judges in the future whenever
COLAs are awarded to the General Schedule. See id. at 65.
Thus, under the district court’s order, whenever Congress
in the future awards a COLA to the General Schedule,
Article III requires that a COLA be paid to federal judges.
App. 6
The government then brought these appeals,' over
which we have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(2) (1994).
I]
Before turning to the merits of the case, we address
the preliminary issues of jurisdiction over this appeal and
our potential disqualification.
A
The Judges invoked the jurisdiction of the district
court under 28 U.S.C. § 1346(a)(2) (1994). That provision,
commonly known as the Little Tucker Act, vests the dis-
trict court with jurisdiction over a “claim against the
United States, not exceeding $10,000 in amount.” In its
brief to this court, the government suggests that the
individual plaintiff judges would each receive in excess
of $10,000 were we to affirm the judgment of the district
court. At oral argument, the government withdrew its
jurisdictional challenge at least as to the Judges’ prayer
for relief for the 1995 year, since each individual judge
would receive less than $10,000 for the unpaid COLA for
that year. We agree that the district court possessed Little
Tucker Act jurisdiction at least to that extent, if not to the
entirety of the complaint. See Hatter v. United States, 953
1 We have consolidated the three appeals before us. No.
99-1572 concerns the 1995, 1996, and 1997 years, No. 00-1255
deals with 1999, and No. 00-1254 concerns prejudgment interest.
The disposition of the appeal in No. 99-1572 moots the other
appeals. ;
App. 7
F.2d 626, 628-29 (Fed. Cir. 1992). Because sufficient juris-
diction is established in the district court to authorize its
ruling as to 1995, and because we hold that the Judges’
case fails, we need not decide the full extent of the
district court’s jurisdiction over the Judges’ complaint.
B
We now turn to the question of our potential disqual-
ification. Under 28 U.S.C. § 455(b)(4) (1994), “[a]ny jus-
tice, judge, or magistrate of the United States” is
disqualified if he or she “has a financial interest in the
subject matter in controversy.” Given that the remedies
ordered by the district court would both result in dam-
ages awards to federal judyes serving during the relevant
years, as well as require future COLAs to be granted
according to the 1989 Act, it appears that every Article III
judge has a potentially-disqualifying financial interest in
the outcome of this case. See, e.g., Will, 449 U.S. 200, 212
(1980) (notin... in a factually similar case, that “all Article
III judges have an interest in the outcome”).
Section 455, however, does not alter the centuries-old
“Rule of Necessity,” which allows - and even seems to
require - federal judges to hear and decide matters in
which they have a financial interest, if necessary to the
exercise of the court’s jurisdiction. See Will, 449 U.S. at
214 (“The true rule unquestionably is that wherever it
becomes necessary for a judge to sit even when he has an
interest - where no provision is made for calling another
2 If necessary, however, we adopt the jurisdictional analysis
set out in the dissenting opinion.
App. 8
in, or where no one else can take his place - it is his duty
to hear and decide, however disagreeable it may be.”
(quoting Philadelphia v. Fox, 64 Pa. 169, 185 (1870)).
Accordingly, the Supreme Court has held that where
Article III judicial compensation is at issue, judges have
an “absolute duty ... to hear and decide cases within
their jurisdiction.” Will, 449 U.S. at 215. We thus must
accept the obligation to hear this appeal, pursuant to the
Rule of Necessity, notwithstanding our personal interest
in the outcome.
Ill
In the district court, the government argued, as it
does again here, that the courts have no occasion to
worry over the constitutional implications of the refusal
by Congress to allow the otherwise automatic COLAs to
take effect in 1995, 1996, 1997 and 1999, as stated in the
1989 Act. This is so, according to the government,
because of the requirements of Section 140 of a Joint
Resolution making continuing appropriations for fiscal
year 1982. See Pub. L. No. 97-92, § 140, 95 Stat. 1183, 1200
(1982). Section 140 states in relevant part:
Notwithstanding any other provision of law or
of this joint resolution, none of the funds appro-
priated by this joint resolution or by any other
Act shall be obligated or expended to increase,
after the date of enactment of this resolution,
any salary of any Federal judge or Justice of the
Supreme Court, except as may be specifically
authorized by Act of Congress hereafter enacted
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App. 9
The government argues that in the years at issue here, the
COLAs sought by the judges were not “specifically
authorized” by Congress, and thus Section 140 prevents
their p»yment. We disagree.
First, we note that by its own terms, the relevant
provisions of Public Law 97-92, which contained Section
140, expired as of September 30, 1982. See Pub. L. No.
97-161, 96 Stat. 22 (1982) (extending life of provisions
from March 31, 1982 to September 30, 1982); Pub. L. No.
97-92, § 102(c), 95 Stat. 1183 (1981). The government,
however, notes that in the years 1991, 1992, 1993, and
1998, when federal judges were granted COLAs under
the provisions of the 1989 Act, Congress passed laws
stating that “[pJursuant to section 140 of Public Law
97-92, Justices and judges of the United States are autho-
rized during [1991, 1992, 1993] to receive a salary adjust-
ment in accordance with 28 U.S.C. section 461.” Pub. L.
No. 101-520, § 321, 104 Stat. 2254, 2285 (1990); Pub. L. No.
102-140, 105 Stat. 782, 810 (1991); Pub. L. No. 102-395, 106
Stat. 1828, 1959 (1992). Thus, the government argues that
Congress clearly intended Section 140 to have a life
beyond that of its stated expiration in 1982. We find this
response unpersuasive. The recent congressional refer-
ences to Section 140 are insufficient to convey a congres-
sional intent to override the unmisiakable language of
Public Law 97-92 (as amended by Public Law 97-161)
terminating the effect of Section 140 in 1982. Indeed, the
enactment of Public Law 97-161 itself supports this view:
Congress clearly understood that Section 140 (among
- other provisions, of course) was scheduled for expiration
on March 31, 1982, and duly extended the life of that
provision for six months, to September 30, 1982. See Pub.
App. 10
L. No. 97-161, 96 Stat. 22 (Mar. 31, 1982). If Congress had
intended to further extend the effective life of Section 140
- that is, beyond the already-extended termination date
of September 30, 1982 - it would have done so clearly and
deliberately. Instead, the recent references to Section 140
appear to be a congressional response to the views of the
Comptroller General of the United States, who in a series
of letters and decisions since 1982, has taken the position
that Section 140 is permanent legislation. See Federal
Judges V, 1996 WL 97482 (Mar. 6, 1996) (unpublished);
Federal Judges IV, 65 Comp. Gen. 352 (Feb. 27, 1986);
Federal Judges III, 63 Comp. Gen. 141 (Dec. 28, 1983);
Federal Judges II, 62 Comp. Gen. 358 (May 6, 1983); Federal
Judges I, 62 Comp. Gen. 54 (Nov. 23, 1982); Letter from
Comptroller General of the United States to The Honor-
able Jamie L. Whitten, October 1, 1982. We view these
citations to Section 140 as pragmatic steps taken by Con-
gress to set aside any possible legal arguments (based on
Section 140) that the recent COLAs and other pay adjust-
ments are rendered void by Section 140. Where Congress
enacts legislation with a clear and express termination
date, we need more than the views of the Comptroller
General to rewrite the plain language of a statute. See
Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999)
(“As in any case of statutory construction, our analysis
begins with the language of the statute. And where the
statutory language provides a clear answer, it ends there
as well.”) (internal quotations and citations omitted).
Congress failed to mark Section 140 with the indicia of
permanence. The effectiveness of Section 140 therefore
ended on September 30, 1982.
App. 11
Second, even if Section 140 did not expire as of
September 30, 1982, the 1989 Act falls well within the
specific exception in that statute for an “Act of Congress
hereafter enacted.” That is, Section 140, by its own terms,
yields to inconsistent provisions of later-enacted laws.
Here, clearly, the 1989 Act was enacted after Section 140,
and the 1989 Act, by providing a specific process by
which federal judges are to become eligible for COLAs, is
inconsistent with the general ban on pay increases estab-
lished by Section 140. Thus, should there be any disagree-
ment that Section 140 died according to its terms, the
1989 Act controls, rendering the government'’s reliance on
Section 140 moot. In sum, we are wholly unpersuaded by
the government's argument that Section 140 is dispositive
of the issues presented here. Because Section 140 termi-
nated in 1982 and was clearly superseded by the provi-
sions of the 1989 Act, we must address the question of
whether the acts of Congress that repealed the planned
COLAs worked violations of Article III.
While we think enough has been said above to dis-
pose of the Section 140 issue, we do agree with and adopt
the additional points made by the dissent in support of
our unanimous conclusion that Section 140 is inapplica-
ble.
IV
In United States v. Will, supra, the Supreme Court
considered the Article III implications of negating a judi-
cial pay-raise scheme strikingly similar to the one we
address today. The interlocking statutory system consid-
ered in Will subjected judicial salaries to the same annual
App. 12
adjustment process made for federal employees under the
General Schedule (“GS”) pursuant to the Federal Pay
Comparability Act of 1970. See id. at 203-04. Under the
Comparability Act, the President was required to desig-
nate an agent each year to submit recommendations
deemed appropriate to bring federal employees’ salaries
in line with prevailing rates in the private sector. See id. at
203. The President also retained the authority to submit
his own recommendation. See id. at 204. Which recom-
mendation controlled depended upon Congress: if one
House of Congress adopted a resolution expressing dis-
approval of the President’s adjustments within 30 days of
their submission, then the agent’s recommendation
would control. See id. Judicial salaries were automatically
increased, either by the amount specified by the agent or
by the amount recommended by the President. See id. at
203. The effective date of the pay increases was to be the
start of the first pay period beginning on or after the
beginning of the federal fiscal year on October 1. See id. at
204. Thus, the statutory pay adjustment scheme in Will
provided for “automatic” pay raises to the GS and to
federal judges: once the amount of the COLA was fixed
according to the Comparability Act processes, GS
employees and federal judges, pursuant to statute, would
receive COLA pay increases, beginning on October 1. See
id. Pursuant to the Comparability Act, in every ensuing
year GS employees and federal judges were to receive
COLAs. No further legislative act was required to guar-
antee receipt of the COLA. Only the amount of the COLA
might have been affected by a legislative resolution. Fed-
eral judges were linked into the Comparability Act, and
OO eee tele
App. 13
thus assured annual COLAs, by the terms of the Execu-
tive Salary Cost-of-Living Adjustment Act of 1975, Pub.
L. 94-82, 89 Stat. 419. The statute, in section 205, expressly
provided that federal judges would receive the annual
COLA adjustment given to the General Schedule. The
Senate Report on that statute, S. Rep. No. 94-333 (July 29,
1975) is replete with references to the need for increase in
judicial compensation, comparing the level of such com-
pensation to the greater incomes of private attorneys, id.
at 6, and comparing the compensation of federal judges
unfavorably to that of state court judges. Id. The report
also noted that federal judges were leaving the bench to
return to more lucrative private life, id. at 8, and cited the
“critical need” to adjust judicial salaries. Id. at 13.
The COLA statute considered in Will guaranteed that
federal judges would receive - every year - a COLA pay
increase. The statute authorizing the COLAs for federal
judges contained no mechanism whereby Congress could
prevent the automatic COLAs from taking effect every
year. Nonetheless, in four particular years at issue in Will,
Congress passed specific legislation that barred payment
of the COLAs to federal judges. The question before the
Court in Will was whether Congress has the constitu-
tional authority to block automatic COLAs that would
increase judicial compensation.
The question for us is no different than the question
which the Supreme Court posed for itself to initiate the
deliberative process in Will that led to the constitutional
rule of vesting that the Court adopted. The question bears
repeating here, to remind us of the necessary focus of our
attention:
App. 14
[W]hen, if ever, does the Compensation Clause
prohibit the Congress from repealing salary
increases that otherwise take effect automat-
ically pursuant to a formula previously enacted?
We must decide when a salary increase autho-
rized 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?
Id. at 221 (emphasis in original).
In Will, the Supreme Court considered four different
years in which the statutory system sought to provide
COLAS to federal judges. There can be no doubt that the
statutory scheme considered in Will was designed by
Congress to provide automatic annual COLA pay
increases to the GS and to federal judges. In the first year
(“Year 1”), the rate of increase under the Comparability
Act was set at 4.8 percent. See id. at 205-06. Under the
terms of the Comparability Act, no legislative act was
necessary to put the COLA pay increase into effect.
Instead the requisite salaries were simply adjusted by
Executive Order No. 11941, signed by the President on
October 1, 1976. Also on October 1, the first day of the
new fiscal year, and the first day of the relevant pay
period, the President signed a measure (hereinafter
referred to as a “blocking statute”), which purported to
block the pay increase for federal judges. See id. (quoting
Pub. L. No. 94-440, Title II, 90 Stat. 1439 (1977)). The
Supreme Court held that this enactment was in violation
of Article Ill, because “the 4.8% increase under the
Adjustment Act already had taken effect, since it was
operative with the start of the month - and the new fiscal
, A a
App. 15
year — at the beginning of the day.” Id. at 224-25. There-
fore, the attempt to block the pay increase to judges was
in fact a repeal of the salary increase already in force as of
the beginning of the day, and thus “diminished” the
salary of federal judges. Id. at 225.
In the second year (“Year 2”) considered by the Court
in Will, the specified rate of pay increase was 7.1 percent.
See id. at 226. This salary increase became effective by
virtue of Executive Order No. 12010, issued by the Presi-
dent on September 28, 1977. In this year, however, the
President had previously signed a blocking statute on
July 11, well prior to the October 1 effective date of the
pay increases. See id. at 206. The blocking statute thus
prevented federal judges from getting their COLA, even
though the statutory scheme provided that the COLA
would automatically take effect the following October 1.
The Court held that the rescission by Congress of the
planned “automatic” pay increase for judges was not a
violation of Article III, section 1. See id. at 229. The Court
reasoned that for purposes of Article III, the pay increase
to judges had not yet “vested” when the President and
Congress blocked it by statute, stating: “a salary increase
‘vests’ for the purposes of the Compensation Clause only
when it takes effect as part of the compensation due and
payable to Article III judges.” Id. Because the planned
pay increase did not actually take effect until October 1,
the President and Congress were free to alter or prevent it
until that date. See id. (“[W]e 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
App. 16
it first was scheduled to become part of judges’ compen-
sation.”).
The third year (“Year 3”) was similar to Year 2. The
President approved the blocking statute on September 30,
1978, just in time to prohibit the automatic COLA from
becoming constitutionally protected judicial compensa-
tion. See id. Thus, while the GS salaries were increased
pursuant to an Executive Order by 5.5 percent, the judges
were deprived of their increase. See id. at 207. Because the
blocking statute took effect before October 1, the Court
ruled that no constitutional violation had occurred. See id.
at 229.
The fourth year (‘Year 4”) was a reprise of Year 1. The
rate of salary increase pursuant to Executive Order was 7
percent, which was a reduced figure submitted by the
President (the President’s agent had suggested a 10.41
percent increase). See id. at 208. Year 4, according to the
Supreme Court's statement of the facts in Will, was the
only year in which the President overrode the agent's
suggested COLA. The blocking statute, however, was not
signed by the President until October 12, well after the
October 1 effective date of the pay increases. See id.
Accordingly, the Court held that the blocking statute in
Year 4 was an unconstitutional diminishment of judicial
pay. See id. at 230.
In sum, the Supreme Court in Will unanimously cre-
ated a clear and simple rule for determining whether the
repeal of a statutorily-mandated judicial pay increase
runs afoul of Article III. The analysis turns on the timing
of the repeal action rather than the “automatic” or “dis-
cretionary” nature of the planned pay raise. Pursuant to
App. 17
Will, if Congress and the President wish to prevent a
planned increase in judicial compensation, they must do
so before the date that the pay increase becomes actually
“due and payable” as part of the judges’ compensation
package. See id. at 229. Legislative blocking action taken
after a pay increase has taken effect unconstitutionally
diminishes judicial pay.
Why, one may ask, did the Supreme Court graft this
vesting rule onto Article III? The Supreme Court gave us
the answer in Will:
To say that the Congress could not alter a
method of calculating salaries before it was exe-
cuted [i.e. became due and payable in the man-
ner specified by Congress] 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.
Id. at 228 (emphasis added). At the end of the sentence
just quoted, the Supreme Court appended footnote 33,
stating: “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 pro-
posal.” Congress, of course, alone has the constitutional
authority to set the compensation of federal judges. In
Will, the Supreme Court accommodated the dual com-
mands of Article III - that while Congress sets judicial
compensation, once vested it cannot diminish that com-
pensation. The vesting rule of Will marks the point in
time at which a specific congressional decision to increase
judicial compensation cannot be reversed. |
App. 18
V
With this understanding of the legal framework
established by the Court in Will, by which we of course
are strictly bound, we now turn to the circumstances of
this case.
A
Adjustments to judicial salaries are authorized by 28
U.S.C. § 461 (Supp. 2000), which states:
(a)
App. 19
(2) In no event shall the percentage adjust-
ment taking effect under paragraph (1) in any
calendar year (before rounding), in any salary
rate, exceed the percentage adjustment taking
effect in such calendar year under section
5303 of title 5 in the rates of pay under the
General Schedule.
(b) Subsection (a) shall not apply to the extent
it would reduce the salary of any individual
whose compensation may not, under section 1
of article III of the Constitution of the United
States, be diminished during such individual’s
continuance in office.
(1) Subject to paragraph (2), effective at the
beginning of the first applicable pay period
commencing on or after the first day of the
month in which an adjustment takes effect
under section 5303 of title 5 in the rates of pay
under the General Schedule (except as pro-
vided in subsection (b)), each salary rate
which is subject to adjustment under this sec-
tion shall be adjusted by an amount, rounded
to the nearest multiple of $100 (or if midway
between multiples of $100, to the next higher
multiple of $100) equal to the percentage of
such salary rate which corresponds to the
most recent percentage change in the ECI (rel-
ative to the date described in the next sen-
tence), as determined under section 704(a)(1)
of the Ethics Reform Act of 1989. The appro-
priate date under this sentence is the first day
of the fiscal year in which such adjustment in
the rates of pay under the General Schedule
takes effect.
Section 461 thus provides two important guideposts.
First, of course, it links judicial pay raises with adjust-
ments to GS salaries. But even more importantly, it
explicitly establishes the date that such raises take effect:
any pay increases are to be “effective at the beginning of
the first applicable pay period commencing on or after
the first day of the month in which an adjustment takes
effect under section 5303 of title 5 in the rates of pay
under the General Schedule.” 28 U.S.C. § 461(a)(1). Sec-
tion 5303 of Title 5 provides that GS salary adjustments
take effect as of “the first day of the first applicable pay
period beginning on or after January 1 of [the] calendar
year.” Thus, section 461, incorporating the relevant lan-
guage from section 5303, provides that any judicial pay
increases will take effect as of the first applicable pay
period beginning after January 1. Under the Supreme
Court’s decision in Will, this date is the critical date:
before this date, Congress and the President may act to
block planned pay increases, see 449 U.S. at 226-29 (dis-
cussing Years 2 and 3); after this date, a statute repealing
App. 20
a judicial pay increase is unconstitutional, see 449 U.S. at
224-26, 229-30 (discussing Years 1 and 4).
In this case, there is no dispute that in the years at
issue (1995, 1996, 1997, and 1999), GS salaries were
increased. There is also no dispute that, given the GS
salary adjustments and the framework established by the
1989 Act, judicial salaries should also have been
increased, effective as of the first applicable pay period
on or after January 1 of the next calendar year. Indeed,
the whole of the 1989 Act, and its legislative history,
indicate that Congress wanted to create an automatic,
irreversible, COLA-granting mechanism for federal
judges, contingent only upon the grant of a COLA to the
General Schedule. The 1989 Act thus expresses a promise
the 1989 Congress made to itself and to federal judges,
and a wish it made to future Congresses, to provide
federal judges with future ‘pay increases. But in 1995,
1996, 1997, and 1999, different Congresses rejected the
wish expressed in the 1989 Act, and acted to block the
judicial pay increases, as follows:
¢ The pay increase that was to take effect on
January 1, 1995 was blocked by Section
630(a)(2) of Pub. L. 103-329, 108 Stat. 2382,
2424 (1994), which provided that “[flor the
purposes of each provision of law amended
by section 704(a)(2) of the Ethics Reform Act
of 1989 (5 U.S.C. 5318 note), no adjustment
under section 5303 of title 5, United States
Code, shall be considered to have taken
effect in fiscal year 1995 in the rates of basic
pay for the statutory pay systems.” This law
was signed by the President on September
30, 1994.
App. 21
¢ The pay increase that was to take effect on _
January 1, 1996 was blocked by Section 633
of Pub. L. 104-52, 109 Stat. 468, 507 (1995),
using similar language. This law was signed
by the President on November 11, 1995.
¢ The pay increase that was to take effect on
January 1, 1997 was blocked by Section 637
of Pub. L. 104-208, 110 Stat. 3009, 3009-364
(1996), using similar language. This law was
signed by the President on September 30,
1996.
e The pay increase that was to take effect on
January 1, 1999 was blocked by Section 621
of Pub. L. 105-277, 112 Stat. 2681, 2681-518
(1998), using similar language. This law was
signed by the President on October 21, 1998.
Opoviously, each of these unambiguous laws —- which nei-
ther party denies had the intended effect of preventing
the planned judicial pay increase for each of the years in
question — was passed by Congress and approved by the
President before the January 1 date that the COLAs were
to take effect. Under Will, put simply, that is the end of
our inquiry, and the Judges’ cause must fail. As the
Supreme Court’s analysis of Years 2 and 3 in Will com-
mands, “a salary increase ‘vests’ for the purposes of the
Compensation Clause only when it takes effect as part of
the compensation due and payable to Article III judges.”
449 U.S. at 229. The statutory scheme at issue in Will fixed
the effective date of the pay increases as October 1;
actions by Congress and the President before that date
(Years 2 and 3) were permissible; actions after that date
(Years 1 and 4) were not. Here, the only difference in the
analysis is that the statutory scheme (28 U.S.C. § 461)
App. 22
establishes the effective date of the COLAs as January 1.
Because, in each of the years at issue in this case, the
President signed the blocking law before January 1, these
actions do not violate Article III of the United States
Constitution.
B
On appeal, the Judges again argue that the COLAs
“vested,” for Article III purposes on January 1, 1991, the
effective date of the 1989 Act. That is, the Judges posit
that, as of January 1, 1991, federal judges were due
COLAs in every subsequent year, subject only to the
condition that COLAs were granted to GS employees. The
Judges also note that, as of the passage of the blocking
statutes in the years at issue, “all steps to finalize the
adjustments had been completed.” Appellee’s Br., at 43.
Thus, according to the Judges, by the time Congress and
the President acted, their compensation had already been
increased, thus riaking the blocking statutes a diminish-
ment of judicial pay.
At oral argument, the Judges’ position was high-
lighted by the following hypothetical. Assume that Con-
gress in 2000 enacts and the President signs a bill stating
that “annual compensation for all federal judges shall be
increased by $50,000 per judge on January 1, 2005.” Then,
in 2004, another act is passed and signed that flatly
repeals the planned $50,000 pay increase. According to
the Judges, the 2004 Act is unconstitutional as a diminish-
ment in judicial compensation. According to the Judges,
the $50,000 increase must be paid starting in 2005, not-
withstanding the 2004 blocking statute.
App. 23
The Judges’ position, as stated in the district court,
the briefs here, and at oral argument, evinces a wishful
misunderstanding of the Article III “vesting” rule which
the Supreme Court established in Will. The central hold-
ing of Will is unambiguous: judicial pay increases which
are enacted and effective, except in the sense that they are
not yet “due and payable” to judges, may be repealed. See
449 U.S. at 228 (“To say that Congress could not alter a
method of calculating salaries before it was executed
would mean the Judicial Branch could command Con-
gress to carry out an announced future intent as to a
decision the Constitution vests exclusively in the Con-
gress.”). In Will, the judicial pay raises in Years 2 and 3
were, by statute, due to take effect as of the start of the
fiscal year on October 1; no further action was required
on the part of Congress to add the COLAs to the compen-
sation of federal judges. There is no difference between
years 2 and 3 in Will and the years in question in this
case: everything necessary for the effectiveness of the pay
increases had occurred before the negating legislation,
except for the passage of time to permit pay increases to
become due and payable to the judges. The automatic
COLAS in Years 2 and 3 were fully effective, as matters of
legislation: they only awaited a date upon which they
could be added to judicial pay checks. Yet the Supreme
Court held that the repeal of those pay raises did not
violate Article III. See id. at 226-29. The reason for this
holding is that the Supreme Court established a “vesting”
rule for Article III that is exclusively focused on whether
the pay adjustments have become “part of the compensa-
tion due and payable” to judges. Id. at 229.
App. 24
Typically, “vesting” of future interests only requires
two components: an identification of the future owner,
and certainty that the property would transfer. See, e.g., 2
Blackstone’s Commentaries 168; Simes & Smith, The Law
of Future Interests, § 65, pp. 54-55 (2nd ed. 1956). In Will,
the Supreme Court departed from traditional vesting
rules to set forth a rule that “vesting,” for Article III
compensation purposes, in effect requires the actual pos-
session of the additional compensation. See 449 U.S. at
228-29. That is, under the vesting rule in Will, pay
inc ceases for Article III judges are left constitutionally
unprotected until the judges actually begin to accrue
compensation under the increased rates (occurring, of
course, at the start of the first pay period when the
increased pay is in effect). The Supreme Court in Will
reasoned that this rule was required because the Consti-
tution, by design, had left increases in judicial pay
“exclusively” with the Congress. Id. at 228. As the Court
noted, “it would be particularly ironic if [courts] were to
bind Congress to an indexing scheme for salaries when
the Framers themselves rejected an indexing proposal.”
Id. at 228 n.33. Congress, of course, has strong political
and practical incentives to provide fair and adequate
salaries to Article III judges, including provisions for
increases in the cost of living and a reasonable relation-
ship with private sector rates of pay. As the Court in Will
noted, however, the Framers deliberately left such deci-
sions to the Congress. See id. at 220 (“The Convention
finally adopted [Gouverneur] 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.”).
App. 25
The position adopted by the Judges (and accepted by
the district court) reduces to the contention that Con-
gress, once it has enacted a law promising a future pay
increase to federal judges, may not, as a constitutional
principle, amend downwards or abrogate that promise,
irrespective of whether the judges have actually begun
seeing the effects of the pay increase in their paychecks.
While perhaps a sound equitable principle, this supposed
rule presented by the Judges is simply contrary to the
rule established by the Supreme Court in Will. See, e.g., id.
at 228 (“For Year 2. . . the [blocking] statute was passed
before the Adjustment Act increases had taken effect -
before they had become part of the compensation due
Article III judges. Thus, the departure from the Adjust-
ment Act policy in no sense diminished the compensation
Article III judges were receiving; it refused only to apply
a previously enacted formula.”). While we can agree with
the Judges that the repeated departures from the 1989 Act
were perhaps regrettable and ill-considered policy
choices, we cannot accept that the Constitution - which
as interpreted in Will lodges exactly this type of policy
decision with the Congress - forbids it. Indeed, the
Supreme Court emphasized that such policy choices are
within the constitutional power of Congress to set judicial
compensation. The 1989 Act was an admirable and
important attempt to address the significant pay gap
between federal judges and their counterparts in the pri-
vate sector. But it did not, for Article III purposes, “vest”
the judges with any pay increases. Thus, so long as the
- Supreme Court permits the rule of Will to survive, any
remedy (and responsibility) for the failure of the 1989 Act
App. 26
to consistently achieve its goals must be supplied by
Congress, not by the inferior federal courts.
VI
A
In its opinion below, the district court, aware of Will's
roadblock, held that the circumstances surrounding the
Judges’ claims here did not fall within the rules estab-
lished by the Supreme Court in Will. the district court
found that the 1989 Act “differs substantially” from the
pay-raise system discussed in Will in three ways, thereby
justifying a different answer to the constitutional ques-
tion:
(1) First, the district court noted that the 1989
Act “imposes severe limitations on the out-
side income federal judges may earn, for-
bids the receipt of honorar[ia] and imposes
mandatory work loads on senior judges.”
Williams, 48 F. Supp. 2d. at 57.
(2) Second, the district court noted that the
1989 Act “revised the process for providing
annual cost-of-living adjustments for fed-
eral judges” by establishing a “trigger”
when there is an adjustment to GS salaries,
and that “Congress took control and pre-
scribed the means for determining the
annual pay adjustment.” Id.
(3) And third, the district court noted that the
1989 Act set a five percent cap on the
amount of any COLA for federal judges.
See id.
App. 27
The court's first and third distinctions are irrelevant
to the constitutional question before us: the Judges make
no claim that the limitations on outside income estab-
lished by the 1989 Act are violations of Article III - and
they make no claim that they are legally entitled to
COLAs as a quid pro quo for restrictions on nonjudicial
activities. Nor do they suggest that the five percent cap is
unconstitutional. To be sure, the Judges’ ability to supple-
ment their judicial pay was restricted by the 1989 Act,
and notions of equity may suggest that automatic COLAs,
when such are awarded to General Schedule employees,
should »e a trade-off for such restrictions. But the rule of
Will permits no equitable amelioration of its harsh bite.
And as to the second distinction, it is unquestionable that
the 1989 Act revised the mechanics by which judicial pay
could be increased. As noted above, the 1989 Act was a
deliberate attempt by Congress to ensure that federal
judicial pay scales kept pace with private sector salaries.
But so was the pay-raise scheme the Supreme Court
considered in Will. That Congress reduced the involve-
ment of the President in COLA adjustments under the
1989 Act is also of no relevance: the Court in Will gave no
weight to whether the President or Congress provided
the impetus to raise judicial salaries. Indeed, in three of
the Will years, the President played no role, the recom-
mendation of the agent being left untouched: those years
are thus virtually identical to the years in question in this
case.
The district court clearly erred, in several respects, in
its analysis of the statutory system in place during the
Will years. First, the district court thought that the “Presi-
dent submitted an Alternative Plan every year.” Williams,
App. 28
48 F. Supp. 2d at 56. The Supreme Court found that the
President overrode the agent’s recommendation in only
one year, Year 4. See Will, 449 U.S. at 205-09. This error is
no doubt harmless, but it was just the beginning of the
district court’s misunderstanding of the way the statutes
operated in the Will years. The district court was of the
view that no final law was in place to adjust salaries in
the Will years until the President took some additional
action. Williams, 48 F. Supp. 2d at 56. According to the
district court, the President “had until September 30 [in
each of the four years] to accept or reject the proposed
adjustment.” Id. Further, the district court thought that
until September 30, it was not clear that there would even
be an adjustment. Id. This is a complete and fundamental
error. The Supreme Court’s opinion in Will expressly
states that the President “may submit to Congress before
September 1 an alternative plan [to that recommended by
the agent] for adjusting federal employees’ salaries.” 449
U.S. at 204. The Supreme Court further explained that
the alternative plan [of the President] controls
unless within 30 days . either House of
Congress adopts a resolution disapproving of
the President's proposed plan. If one House dis-
approves, the agent’s recommendation governs.
The increases [whether under the agent’s or the
President's plan] take effect with the start of the
first pay period starting on or after the begin-
ning of the federal fiscal year on October 1.
Id.
The Supreme Court’s view of the facts in Will, by
which we of course are bound, closely tracks the lan-
guage of the relevant statutes. Those facts show that the
App. 29
President had until September 1 to override the agent’s
proposed COLA, which would become payable the fol-
lowing October 1 unless the President stepped in on time.
If the President overrode the agent’s recommendation,
then either House of Congress had until September 30 to
override the President’s plan and reinstate the agent’s
recommended COLA. In either instance, a COLA would
be part of the compensation of the General Schedule
employees and of the federal judges on the following
October 1. The Will statutes guaranteed an annual auto-
matic COLA to the General Schedule and to federal
judges.
Given the express findings by the Supreme Court of
how the statutes operated in the Will years, the district
court clearly erred in its review of the Will facts. As noted
above, the COLA increases in the Will years were an
automatic certainty come the first day of the next fiscal
year, unless, of course, one house cf Congress enacted
express blocking legislation before the first day of the
next fiscal year.
Because the correct understanding of how the Will
statutes operate is so important to the resolution of this
case, we pressed the parties at oral argument as to their
understanding of those statutes. Both sides agreed that
the COLAs under those statutes were automatic, without
any need for further congressional enactments. The errors
of the district ccurt became apparent at oral argument,
with the government relying on those errors to emphas-
ize the similarity of the circumstances in Will to the
circumstances in this case - and the Judges making no
attempt to defend the errors made by the district court in
this regard.
App. 30
If the statutory scheme in this case is substantively
no different than the one in Will, then there can be no
reason to refuse to apply the law stated in Will to the facts
of this case. We think it is impossible to distinguish the
statutory scheme implemented in 1989, for purposes of
application of the Article III compensation vesting rule
laid down in Will.
The analysis in Will thus turned on the timing of the
enactment of the blocking laws - an activity, of course,
requiring the participation of both Congress and the Pres-
ident. We cannot accept the district court’s view that the
differences between this case and the scheme addressed
in Will require a distinct Article III analysis. In short, we
cannot escape from Will's impact on this case on the
ground that the 1989 Act laid down a completely differ-
ent statutory scheme with entitlement to a different Arti-
cle III vesting rule than the one laid down in Will.
In addition to its erroneous view that the 1989 Act
can be assessed under a vesting rule different from the
one stated in Will, the district court relied on an 1803
opinion written by the Circuit Court for the District of
Columbia, United States v. More (CC DC 1803), writ of error
dismissed for want of jurisdiction, 3 Cranch 159, 2 L.Ed. 397
(1805). In More, Congress had enacted and later abolished
a system of fees compensating justices of the peace in the
District of Columbia (then Article III positions). After
Congress abolished the system, More was indicted for
continuing to collect the fees. The Circuit Court held that
the abolishment of the fee system was an unconstitutional
App. 31
diminishment of judicial compensation. See id. at 161 n.2.
In the district court’s view, More controlled the outcome
in this case because the 1989 Act provides that judges will
receive COLAs in the future, whenever adjustments were
made to GS salaries. See Williams, 48 F. Supp. 2d. at 59.
Since More held that a future pay arrangement is constitu-
tionally protected, it reasoned that the future pay
arrangement of the 1989 Act must also be constitutionally
protected.
This is a complete misapplication of More, and
indeed, simply a replay of the same error committed by
the district court in the Will case. The district court opin-
ion in Will held that “on the basis of the More case alone,
the only supportable conclusion . . . is that Congress’
attempt to eliminate or avoid the [COLA pay increases] is
unconstitutional.” Will v. United States, 478 F. Supp. 621,
627 (N.D. Ill. 1979) The Supreme Court in Will, however,
reversed the district court on this point, expressly reject-
ing the notion that More is in any way inconsistent with
the Article III vesting rule announced in Will. The Court
noted that, in More, the fee system was “already in place”
at the time that Congress abolished it. Will, 449 U.S. at
228 n.32. Thus, by abolishing the mechanism by which
More had been paid for his services, Congress had dimin-
ished his compensation. See id. That is, in More, a justice
of the peace was paid for his judicial services (his Article
_ II compensation) by receiving a set amount for certain
acts performed. That system of compensation is little
different from one based on payments for time served,
such as being paid per hour, per day, or per year of
service. Irrespective of the particular system, formula, or
process involved, the protection of Article III is triggered
App. 32
only when judges actually begin to accrue compensation
under the scheme. See id. at 228-229. The outcome in More
is fully consistent with the vesting rule in Will.
The district court thus misunderstood the force of
More, and fundamentally erred in thinking that More
supported the result reached by the district court on the
constitutional question. Indeed, in the light of the fact
that the district court in Will pegged its decision in favor
of federal judges on its reading of More, only to be
unanimously reversed in that regard by the Supreme
Court, the district court’s reliance on More in this case is
no less than surprising. Furthermore, during oral argu-
ment in this case, both sides agreed with the Supreme
Court’s understanding of the facts in More: namely that
the fee schedule in suit had been in effect (“already in
place as part of the justices’ compensation” as stated in
footnote 32 in Will) before it was repealed by Congress.
Thus Justice More, before the repealer, had performed
services and had been paid for them at the schedule rate.
This is no different from a judge being paid by the hour
or month, or indeed by the year, and then having Con-
gress reduce the rate of compensation at which the judge
had previously been paid. For these reasons, the Supreme
Court held that More is fully consistent with the proposi-
tion that promises of future increases in judicial compen-
sation can be broken, without Article ITI consequences, if
the promise is broken before the increase becomes part of
compensation payable to federal judges. See Will at 228
n.32.
App. 33
C
The district court’s citation to Boehner v. Anderson, 30
F.3d 156, 158 (D.C. Cir. 1994) is no more helpful in sup-
port of its answer to the constitutional question in this
case. In Boehner, the court analyzed whether the 1989 Act,
which also applies to Members of Congress, is inconsis-
tent with the 27th Amendment to the United States Con-
stitution, which prohibits laws effecting pay raises to
Members of Congress from taking effect until a congres-
sional election has intervened. The Boehner court deter-
mined that it was not, holding that the phrase “shall take
effect” in the 27th Amendment referred to the date that
the 1989 Act was enacted, rather than the date that the
COLAs for Members of Congress were actually paid. See
30 F.3d at 161-62. Thus, because the first pay raise under
the 1989 Act was implemented in January 1991, the
requirements of the 27th Amendment were satisfied. Id.
From the D.C. Circuit’s straightforward analysis, the
district court and the Judges find a generalizable rule that
COLA pay increases “take effect” (i.e., “vest”) when the
law providing the indexing scheme is enacted, not when
the pay increases “become due and payable” under the
vesting rule established by Will. However, the district
court and the Judges fail to come to grips with the speci-
fic holding of Will — that vesting, for federal judges under
Article III, occurs only when compensation begins to
accrue to the judges, not when a particular adjustment
formula is enacted. Boehner considered a very different
question: when does a “law” increasing the salaries of
Members of Congress “take effect”? As the D.C. Circuit
noted, there is little question that the 1989 Act was a
“law” that “took effect” in 1989; the COLAs themselves,
App. 34
operating virtually automatically, were not additional
laws. See 30 F.3d at 162. This simply has no relevance,
however, to the question of whether the judicial pay
aspects of the 1989 Act could, consistent with Article III,
be revised or abrogated by later Acts of Congress. That
question, as we have noted above, is answ~red in the
affirmative by the analysis prescribed in Will.
Vil
The dissenting opinion argues that the Article III
vesting rule in Will is inapplicable to this case, because
the 1989 Act represents a “political bargain” which was
“struck by members of the legislative branch and codified
in legislation.” The particular bargain to be enforced here
is the intent to grant COLAs to federal judges, if granted
to the General Schedule, so long as the Judges’ compensa-
tion from nonjudicial activities is restricted by statute.
The dissent asserts that the Constitution compels this
court to enforce that bargain. The notion that courts must
enforce political bargains is the only reason submitted by
the dissent for its unwillingness to abide by the rule in
Will.
The cases cited by the dissent for the proposition that
courts should give effect to political compromises struck
in final legislation all involve an issue of statutory inter-
pretation. Common to such cases is language such as:
As with other problems of interpreting the
intent of Congress in fashioning various details
of this legislative compromise, the wisest course
is to adhere closely to what Congress has writ-
ten.
App. 35
Rodriguez v. Compass Shipping Co. Ltd., 451 U.S. 596, 617
(1981). Another iteration of the same point colorfully
states that:
Congress has put down its pen, and we can
neither rewrite Congress’ words nor call it back
to “cancel half a line.” Our task is to interpret
what Congress has said... .
Director, Off. of Workers’ Compensation Programs v.
Rasmussen, 440 U.S. 29, 47 (1979). These cases, in addition
to those cited by the dissent, and a host of others, are
unremarkable in that they only state the obvious: that
when an issue of statutory interpretation is at hand,
courts should where possible respect and uphold political
compromises struck within the legislature or between the
other two branches.
If the obvious axiom is applied to this case, treating it
as only a case of statutory interpretation, we can all agree
that the intent of Congress in 1975, with the Executive
Salary Cost-of-Liviing Adjustment Act, is absolutely clear
and beyond any possible doubt: federal judges were to
receive COLAs in the future automatically. And the intent
of Congress in 1989 is equally clear and beyond any
possible doubt: federal judges were to receive COLAs in
the future whenever COLAs were awarded to the General
Schedule. Congress in 1989 no doubt fully intended,
hoped and promised that federal judges would receive
COLAs in the future according to the COLA-granting
terms of the 1989 Act. We can further agree that this
intent, hope and promise was shared in some political
compromise. But we cannot escape the plain fact that the
intent of the 1975 Congress was no different: it intended
App. 36
that federal judges would receive COLAs in every ensu-
ing year, and because the President signed that bill, we
can only presume that he went along with the plan for
the future embedded in the statutes. We also cannot
escape the fact that the 1975 Act, with its firm promise of
future pay increases for federal judges, was the result of a
hard-fought political bargain, as well described in the
dissenting opinion. If the rule of Will overwhelms the
intent and political compromises of the 1975 Congress, as
it surely does, then we fail to understand why the rule of
Will does not likewise overwhelm the intent of the 1989
Congress.
The Supreme Court in Will could easily have
employed the rationale of the dissent in its analysis of the
statutes in question, to rule that the bargain struck in the
legislative process for future COLAs prohibited the ves.-
ing rule that the Court established in Will. To that end,
the Court could easily have fashioned a vesting rule more
consistent with black-letter vesting for future interests,
thereby permitting the intent of Congress, as expressed
by its legislative processes, to afford constitutional pro-
tection, under Article III, for statutorily promised future
pay increases for federal judges. For the Court, the “other
part” of Article III — the part that reserves to the Congress
the sole authority to set judicial pay — stood in the way of
traditional vesting rules for future interests. The Supreme
Court found the explanation in terms of constitutional
law or policy for its vesting rule in the Constitution itself.
The Court thus expressed its reasons for rejecting the
vesting of future COLAs for federal judges as garden-
variety future interests, from a date of statutory enact-
ment, as urged by the dissent.
App. 37
The reason for the dissent’s vesting rule, and the only
ground on which it finds any difference between the 1975
and the 1989 Acts, is that the 1989 Act included restric-
tions, for ethical reasons, on the sources of nonjudicial
compensation for federal judges. Indeed, the dissent
posits a conditional vesting rule: so long as the limits on
nonjudicial compensation exist, future COLAs are vested
from the date of enactment of the 1989 Act. If those limits
did not exist, presumably the vesting rule of Will would
apply.
As a first matter, it is clear that Congress has the
power to limit the nonjudicial activities of federal judges,
even if such limitations reduce nonjudicial compensation.
The Judges do not suggest that the protection in Article
III for judicial compensation extends tv protection of
sources of nonjudicial compensation. They do not argue
that “taking away” sources of nonjudicial compensation
diminishes judicial compensation under Article III. It has
to be clear that Congress can deny things of value to
federal judges without being obligated by the Constitu-
tion to remunerate federal judges in return, as in the quid
pro quo notion that permeates the rationale of the dissent.
The fact that Congress restricted the sources of outside
pay for federal judges in the 1989 Act is therefore irrele-
vant to the question of whether a later Congress, consist
[sic] with Will, can refuse to deliver a COLA promised vy
the 1989 Act. Indeed, for those federal judges never hav-
ing sought compensation for nonjudicial activities, there
is no legislative “bargain” as posited by the dissent,
pursuant to which they could claim constitutional entitle-
ment to a promised future COLA. Only those judges who
were counting on future outside nonjudicial compensation
App. 38
could claim themselves as third party beneficiaries of the
legislative bargain to which the dissent points. We there-
fore reject the dissent’s conditional vesting rule: we do
not think that Article III is switched on and off depending
on whether in a given year Congress has enacted consti-
tutional legislation that adversely affects some aspect of
nonjudicial behavior of federal judges.
We need not quibble with the dissent’s view that
courts frequently recognize that federal statutes often, if
not always, reflect political bargains, ones hard fought-
for and frequently difficult to achieve. We can also accept,
for purposes of argument, that the 1989 Act contains
some form of pact between “members of the legislative
branch,” even though that fact hardly distinguishes the
1989 Act from any other legislation. Courts, we can pre-
sume, ought to be loath to interfere with political bar-
gains, unless some rule of law requires a court to upset
the political bargain struck in a statute. Indeed, separa-
tion of powers is all about appropriate respect by the
judiciary for compromises and bargains struck in the
enactment of legislation. Nonetheless, courts must apply
the rule of law, even when the rule of law disrupts some
perceived legislative compromise. Anytime a court inter-
prets a federal statute in a way contrary to a significant
articulate volume of legislative history, or a way that
produces outcry from Congress or the President, that
court disrupts the political balance that underlay the
statute. And when a court is called upon to strike down a
federal statute as inconsistent with the Constitution, of
course the political deal that produced the statute is
frustrated. In the end, the dissent posits a rule of statu-
tory construction with which we disagree: that when a
App. 39
conditional political bargain is struck involving the com-
pensation of federal judges, the political compromise
must be enforced by the courts, as a matter of constitu-
tional law, so long as the bargain remains in place. The
dissent’s rule, however, completely overlooks the vesting
rule in Will. That vesting rule, according to the dissent,
simply has no room for application so long as the politi-
cal bargain remains in place.
In the final analysis, the brightest line of distinction
between the dissent’s view of this case and ours is that
the dissent apparently sees the rule in Will as one of
limited application, a rule that applies only when Con-
gress has not struck some political bargain where judicial
compensation is involved. For the dissent, both Will and
this case are ordinary cases raising only questions of
statutory interpretation. The dissent attributes to the Will
Congress an intent to prohibit future COLAs if blocked
by Congress before the due and payable date. We think
Will cannot bear such a reading. To decide the case, the
Supreme Court’s opinion in Will did not explore the
intentions of Congress; instead it explored the constitu-
_ tional limitations on Congress when it seeks to abrogate a
future pay raise for federal judges. This case also does not
call upon us to discover the intent of Congress: we can
agree that the 1989 Congress, like the 1975 Congress,
sought to provide future COLAs to federal judges, even
to those judges who did not view themselves as having to
“give something up” to get the future COLA. Rather than
ask a question of statutory interpretation, this case asks if
a later Congress can break a future pay increase promise
made by the 1989 Act. The later Congresses that broke the
promise of the 1989 Congress did so in statutes that need
App. 40
no elaborate statutory interpretation. The blocking stat-
utes mean what they say, and their plain meaning
requires no resort to legislative history to discover the
political bargain or compromise that led to their enact-
ment.
This case and Will are thus not cases decided by
ordinary canons of statutory interpretation. The rule in
Will is one of general application: until such a time as a
future pay raise for federal judges becomes due and
payable, according to the test laid down by the Supreme
Court, Congress retains constitutional authority to set the
compensation of federal judges, even if the exercise of
that authority involves the repeal of previously enacted
laws that would produce compensation increases at spec-
ific future dates. Ordinary canons of statutery construc-
tion, designed for application to reveal the intent of
Congress, cannot nullify a rule of constitutional law. Will
stands at the intersection of congressional authority to set
the compensation of federal judges and the provision of
Article III that bars Congress from diminishing judicial
compensation. It is not the Judges alone who have some-
thing at stake in this case. The Congress has at stake its
constitutional authority to set the compensation of fed-
eral judges. Will has told us when Congress can, and
when it cannot, defeat the expectations of federal judges
to pay increases that are promised by laws which, when
first enacted, are intended to guarantee future pay
increases to the-federal judiciary. In simple and correct
terms: until a future pay increase for federal judges
becomes due and payable to federal judges and therefore
vests in their favor according to the rule in Will, it is not
protected by Article III. The ground offered by the dissent
App. 41
to avoid the vesting rule of Will must be respectfully
declined.
CONCLUSION
It is, of course, profoundly disap} ointing to the
Judges that the arrangement for future federal judicial
pay increases worked out by the 1989 Congress has
enjoyed such an inconsistent life. While we agree with the
Judges’ view that the continued strength of the federal
judiciary depends in part upon a deliberate, consistent,
and fair approach to routine cost-of-living salary adjust-
ments, we cannot, consistent with established Article II
principles, hold that the Constitution requires the Judges
to prevail in this case. The Supreme Court has drawn a
clear line between rescissions of planned-but-not-yet-
effective pay increases, and reductions of compensation
due and payable to Article III judges. In this case, the
laws that prevented the 1995, 1996, 1997 and 1999 COLAs
from taking effect fall on the former side of the line.
Accordingly, we must hold that the blocking statutes
were permissible, if regrettable, constitutional exercises
of congressional power. The district court’s judgment to
the contrary cannot stand. The judgment of the district
court is reversed, and the case is remanded to the district
court with instructions to enter judgment in favor of the
United States.
REVERSED AND REMANDED
App. 42
United States Court of Appeals for the Federal Circuit
99-1572, 00-1254,-1255
SPENCER WILLIAMS, AUBREY E. ROBINSON, JR., C.
CLYDE ATKINS, LOUIS C. BECHTLE, SANDRA S.
BECKWITH, LUCIUS D. BUNTON, III, WILLIAM M.
BYRNE, JR., ADRIAN G. DUPLANTIER, IRVING
HILL, MORRIS E. LASKER, THOMAS C. PLATT, JR.,
JOHN W. REYNOLDS, WALTER H. RICE, MARVIN H.
SHOOB, JOSEPH L. TAURO, LAUGHLIN E. WATERS,
LEE R. WEST, CHARLES WIGGINS and HENRY R.
WILHOIT, JR.,
Plaintiffs-Appellees,
V.
UNITED STATES,
Defendant-Appellant.
PLAGER, Senior Circuit Judge,* dissenting.
I respectfully dissent.
It is wrong to conclude, as my colleagues do, that the
Supreme Court's decision in United States v. Will, 449 U.S.
200 (hereafter “ Will”), construing a 1975 Act of Congress,
compels us to deny the legislatively decreed COLAs
under the 1989 Ethics Reform Act.
It is wrong because it attributes to the Supreme Court
a misconstruction of the Constitution that the Court's
opinion in Will neither supports nor deserves, and it
* Judge Plager assumed senior status on November 30, 2000.
App. 43
violates the Supreme Court's established canon of consti-
tutional litigation that avoids the making of constitu-
tional rules when statutory interpretation will suffice.
It is wrong because it refuses to acknowledge the
purpose! and intent behind Congress’s enactment in 1989
of the Ethics Reform Act, a purpose and intent under-
stood and agreed to by both Congress and the President.
And it flies in the face of the Supreme Court's stated
policy of honoring legislative compromises when the
nature and purpose of the compromise is an established
part of the public record.
It is wrong because it does a disservice to the judici-
ary by denying to it the unique protection against arbi-
trary action accorded to the judiciary for 200 years by the
Compensation Clause of Article III, § 1 of the United
States Constitution.”
I would affirm the judgment of the district court in
favor of the plaintiff judges.
1 Legislative “purpose” as I use it here is not what
sometimes is presented as judicial discovery of an unspoken
singular purpose behind a piece of legislation, and used as a
hook on which to base an interpretation at odds with the
language of the statute. It is used here in the sense of
recognizing a fully documented political compromise among
legislators that produced the statute in the form in which it was
enacted.
2 “The Judges . . . shall, at stated Times, receive for their
Services, a Compensation, which shall not be diminished during
their Continuance in Office.” Art. II, § 1 (odd capitalization in
original).
App. 44
* . *
I begin with an introduction and overview of the case
for affirmance, infra pp. 4-11. Next, in Part I of the opin-
ion, I address the central issue: was the consequence of
Congress’s purpose and intent behind the enactment in
1989 of the Ethics Reform Act to commit as a matter of
law the COLAs provided in that Act, so that the right to
the COLAs “took effect” and were “due and payable”
when the Ethics Reform Act became law, subject only to
the trigger event, the payment of COLAs to the General
Schedule employees? For the reasons I shall explain, the
correct answer is yes.
In subpart A of Part I, infra pp. 11-16, I explain the
background and give the history of Congress’s efforts to
solve the political conundrum presented to Congress by
the Constitution’s assigning to that body the duty to set
its own salaries, as well as the salaries of senior govern-
ment officials in the other two Branches. In subpart B,
infra pp. 16-29, I examine Congress’s effort that culmi-
nated in the 1975 Adjustment Act, and the Supreme
Court’s 1980 decision construing that act, United States v.
Will. In subpart C of Part I, infra pp. 29-36, I examine in
like manner the effort by Congress that culminated in the
1989 Ethics Reform Act, and demonstrate the differences
between those two efforts and why the decision in Will
does not dictate our understanding of the latter.
On pp. 36-41, infra, I summarize, and recapitulate
why the correct answer to the central issue requires that
we affirm the district court. The reader with limited time
who wishes to grasp the kernel of my disagreement with
the majority can do so by reading the material on pp. 4-11
App. 45
(the introduction and overview), and the summary and
recapitulation of the case for affirmance, on pp. 36-41.
My profound disagreement with my colleagues on
the central merits of the case does not preclude me from
joining the majority opinion with regard to several
peripheral issues. For one, I agree with the unavoidability
of having the court decide the case under the Rule of
Necessity.
I also agree with the majority that the trial court had
jurisdiction over the cause, though I find it necessary to
address more fully than they the question of the district
court’s jurisdiction. I find their analysis rather thin; it
went only far enough to legitimate their reversal of that
court’s judgment in the lead case. As I would uphold the
district court’s judgment with regard to all matters on
appeal, I must demonstrate that the court had jurisdiction
over all the claims. I do so in Part II of this opinion, infra
pp. 42-46.
I further join the conclusion reached in the majority
opinion that Section 140 does not stand as a bar to the
claim of the judges. However, given the history of Section
140, the Comptroller General’s repeated insistence that it
applies to any COLAs to which judges might otherwise
be entitled, and the adherence by subsequent Congresses
to the Comptroller General’s advice, I believe the issue
needs a more thorough exegesis than it receives in the
majority opinion in order to be fully persuasive. That is
Part Ill of this opinion, infra pp. 46-54.
* * *
App. 46
I begin with an introduction and overview of the
case. The essential difference between my view of this
case and that of my colleagues is that, in my view, the
Supreme Court in its Will decision did not create an
immutable, constitutional principle that denies to Con-
gress the power to adopt legislation that it wishes, legis-
lation designed to once again address the thorny problem
of government salaries. The majority reads into the 1980
Supreme Court opinion such an immutable principle, the
consequence of which is that Congress cannot choose to
adopt legislation that differs from the 1975 Act construed
in Will; even if Congress did, according to the majority
this court cannot apply traditional statutory interpreta-
tion touls to enforce such legislation. I do not find in the
Will opinion any such exercise by the Supreme Court,
ascribed to it by the majority, of such an extraordinary
constitutional construction. On the contrary, I read the
Will case as a classic exercise of statutory interpretation
by the Court, based on the facts of the case in light of the
particular statute before it.
Furthermore, I conclude that the interpretive rule the
Supreme Court utilized in Will, taken on its terms as a
rule of statutory construction, when applied to the statute
on which these plaintiffs base their claim, results in an
outcome different from that in Will. This means that the
1989 Ethics Reform Act must be different from the 1975
Adjustment Act, the act construed in Will, in ways that
are legally determinative.
Asked in standard statutory interpretation terms, is
there persuasive evidence that the 1989 Act, as Congress
intended it, operates differently, with different effect,
from the 1975 Act? The Government argues that there is
App. 47
insufficient evidence to conclude that Congress intended
in 1989 to presently vest any rights to future pay adjust-
ments. Any such adjustments must depend on the will of
Congress in any given year. The Government argues that
the 1989 Ethics Reform Act is no different legally than the
1975 Adjustment Act, which the Supreme Court in the
Will case interpreted as not creating any rights to future
benefits, at least not until the benefits became part of the
judges’ salaries in any given year.
The plaintiff judges, as did the district court, reject
the analogy to the 1975 Act, arguing that the 1989 Act is
different in critical respects. The plaintiff judges further
argue that the 1989 Act was intended by Congress to
grant protectable rights, rights that could not be ignored
by later Congresses, and that Will does not control the
outcome here.
The Government's position finds support in that
there is no express language in the 1989 Act to which the
judges can point that clearly states Congress’s intention
to grant the judges protectable rights. At the same time,
the judges’ position finds support in that, in important
respects, the 1989 Act is different from the 1975 Act.
This then is one of those cases in which Congres-
sional intent cannot be determined directly from the plain
language of the statute. Though the plain language of a
statute often answers issues regarding scope and func-
tion, the question we must answer finds no guidance in
the specific language Congress used. It is the purpose and
structure of the 1989 Act, especially as compared to the
1975 Act, to which we must look and which must be
App. 48
examined in some detail in order to ascertain what Con-
gress intended.
Congress, when it enacted the 1989 Ethics Reform
Act, clearly had in mind a dual purpose - to remove from
itself, from the Executive Branch, and from the Judiciary,
the right to earn outside income through particular activ-
ities that were considered to have the potential for con-
flicts of interest, and to replace those sources of income
with guaranteed cost-of-living increases whenever stan-
dard inflation measures so indicated. I will demonstrate
the correctness of that statement by extensive examina-
tion of the legislative history of the 1989 Act; also, again
by examining its legislative history, I will demonstrate
that the 1975 Act, the one construed in Will, had no such
purpose.
The consequence of this is that both the bar to the
prohibited income and the right to the replacement
income “took effect” in 1989. So long as the 1989 Ethics
Reform Act remains in place, the two are inextricably
entwined. “So long as” is important. Consistent with my
view, there is no constitutional impediment to Congress,
should it so choose in the future, to make yet another
effort to solve the problem of salaries for itself and other
senior officials. If that effort causes the repeal of the 1989
Act, that carries with it an end to any rights created by
the Act. See my discussion of this point infra, pp. 39-40.
Again, nothing in Will prevents Congress from enact-
ing such dual purpose, linked legislation as it did in 1989.
The majority opinion mistakenly treats the rule applied
App. 49
by the Supreme Court in Will as an immutable constitu-
tional construct, somehow dictated by the terms of Arti-
cle III of the Constitution, and thus universally applicable
to all cases that implicate the Compensation Clause of
Article III. See maj. op. at 12: “ . . . the deliberative process
in Will that led to the constitutional rule of vesting that the
Court adopted.” (emphasis mine). In effect, the majority
renders Congress powerless to achieve the purpose that
constituted the driving force behind the 1989 Act. See maj.
op. at 35: “The Supreme Court did not explore the inten-
tions of Congress in the Will case; instead it explored the
constitutional limitations on Congress. . . . This case also
does not call upon us to discover the intent of Con-
gress. . . . Ordinary canons of statutory construction,
designed for application to reveal the intent of Congress,
cannot nullify a rule of constitutional law.”
That is an unfortunate misunderstanding of funda-
mental legal principles. In the first place, it is a long-
standing principle that the Supreme Court does not reach
out to decide cases on constitutional grounds when the
matter can be resolved on other grounds. See, e.g., United
States v. Wells Fargo Bank, 485 U.S. 351, 354 (1988) (“(O]jur
established practice is to resolve statutory questions at
the outset where to do so might obviate the need to
consider a constitutional issue.”); Ashwander v. Tenn. Val-
ley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J» concur-
ring: “The Court will not pass upon a constitutional
question although properly presented by the record, if
there is also present some other ground upon which the
case may be disposed of.”).
In Will, the Acting Solicitor General, in his brief to
the Court, stated the first question presented: “Whether,
App. 50
as a matter of statutory construction, the [Pay Acts]
served to supersede or rescind the cost-of-living increases
authorized for Article III judges by the Executive Salary
Cost-of-Living Adjustment Act. ...” Brief for the United
States, United States v. Will, at 1 (citations omitted). The
Court’s concern with what the Constitution commanded
was to a large extent a response to the argument of the
Acting Solicitor General. His argument was that a con-
gressional act could violate Article III only if it constitu-
‘ed a discriminatory attack on the Judiciary. See Brief for
the United States in United States v. Will, third question
presented: “Whether the [Acts at issue] violated the Com-
pensation Clause, where the Acts did not represent a
discriminatory attack on Article III judges and were not
enacted with the purpose or effect of undermining the
independence of Article III judges.”3 The Court answered
that question by making it clear that the constitutional
protection provided by Article III attached whenever the
right to the compensation vested under the governing
Act, and was not dependent on some vague notion of
discriminatory intent.
There is nothing in the Compensation Clause that
mentions “vesting” of rights, nothing to suggest that the
3 “MR. GELLER [Acting Solicitor General]: And our
position is, as you correctly stated, Justice White, that the
correct test, the test that this Court, I think, set forth in O’Malley
against Woodrough, is whether the statute is meant to
discriminate against Article III judges or to undermine their
independence. QUESTION: And you say that if it is not, the Act
is constitutional? MR. GELLER: Does not violate the
Compensation Clause. ...” Transcript of oral argument, Oct. 14,
1980, 1980 U.S. TRANS LEXIS 52, at *36.
App. 51
Constitution dictates an immutable rule. What was
involved in Will was a question of statutory interpreta-
tion. Furthermore, as the majority acknowledges, it is
basic property law that rights to property may vest pres-
ently even though possession (in this case, of money) is
postponed to the future. Indeed, the classic definition of
what is called in property law a “future interest” is a
vested present right to future possession. I am unwilling
to attribute to the Supreme Court the conscious creation
of a new and unique “vesting” rule as a constitutional
construct, one that is contrary to centuries of common
law, and unrelated to any specific language in the Consti-
tution, all without explanation in terms of constitutional
law or policy. The obvious explanation for the Will rule is
the one I have suggested - a matter of statutory inter-
pretation, which is subject to reinterpretation and consid-
ered application as a different statute may require.
Indeed, the question here is not what the “vesting”
rule should say, but how it should be applied. The lan-
guage in the Will opinion over which the majority trips is
that a salary increase vests “only when it takes effect as
part of the compensation due and payable to Article Ill
judges,” 449 U.S. at 229 (emphasis mine). See maj. op. at
15: “Pursuant to Will, if Congress and the President wish
to prevent a planned increase in judicial compensation,
they must do so before the date that the pay increase
becomes actually ‘due and payable’ as part of the judges’
compensation package.”; id. at 20: “[T]he Supreme Court
established a ‘vesting’ rule for Article III that is exclu-
sively focused on whether the pay adjustments have
become ‘part of the compensation due and payable’ to
judges.”
App. 52
The majority believes that, because the phrase “due
and payable” as applied in Will meant that recipients are
not entitled to the prescribed COLAs until the COLAs are
actually paid, that must necessarily mean that in every
case the money must be received before the entitlement
accrues. However, as anyone who has ever had to take a
bank loan would know, the phrase “due and payable”
always asks: due and payable when, and the answer will
vary depending on the terms of the particular transac-
tion. In Will, the Supreme Court read the 1975 Act to
require that the COLA was due and payable when it was
in fact received. That may indeed be what the 1975 Act
required, but, as I explain more fully below, the evidence
is overwhelming that the 1989 Act was designed by Con-
gress to operate in a different manner, and for a different
purpose. The majority concedes this point: “[T]he whole
of the 1989 Act, and its legislative history, indicate that
Congress wanted to create an automatic, irreversible,
COLA-granting mechanism for federal judges, contingent
only upon the grant of a COLA to the General Schedule.”
Maj. op. at 18.
The correct interpretation of the 1989 Ethics Reform
Act is, as I shall demonstrate, that the COLAs became due
and payable contemporaneously with the barring of the
right to outside income, that is, in 1989, subject only to
the ‘trigger’ event each year (a condition subsequent, in
property law terms) that signaled the need for a cost of
living adjustment for federal employees. I refuse to attrib-
ute to the 1980 Supreme Court an inability on the part of
that Court to anticipate that later Congressional enact-
ments might have different origins and purposes, and
might require different understandings. Thus I cannot
App. 53
agree with the majority that the language of Will was
intended by the Court to preclude our treating different
Congressional acts differently, or, even more oddly, to
preclude Congress from writing different legislation.
Finally, I conclude that, once the COLAs provided by
the 1989 Act are properly ‘triggered’ in any given year,
Congress may not by a sudden and arbitrary action, at
odds with the terms of its own governing legislation,
deny the COLAs to which it is committed. Certainly it
cannot in the face of the salutary protection accorded to
the judiciary by the specific command of Article III, § 1 of
the Constitution. To conclude otherwise is to denigrate
the carefully crafted provision worked out by the Foun-
ders for ensuring the essential independence of the Third
Branch.
I. THE CENTRAL ISSUE
A. Congress’s Problem: Creating a Federal
Pay Structure
Ascertaining Congress’s purpose in enacting the 1989
Ethics Reform Act requires an examination of the histori-
cal context within which the act was crafted, and consid-
eration of the contemporaneous legislative record that
accompanied its enactment. Comparing that record with
41 am fully sensitive to the general principle that in
interpreting statutes judges properly begin, and in most cases
end, with the language of the statute, not the language of the
individuals who voted for or against the statute. As my record
reflects, | am a proponent of that rule. See, e.g., VE Holding Corp.
v. Johnson Gas Appliance Co., 917 F.2d 1574, 1579-80 (Fed. Cir.
App. 54
that of the 1975 Adjustment Act will help in understand-
ing the Supreme Court’s view of these matters, as
expressed in the Court’s opinion in Will. And, in addition
to looking at purpose, we must also look at structure, in
- particular the structure of the 1989 Act - considering its
provisions in pari materia - and compare that structure
with that of the 1975 Act. This, too, will assist in under-
standing Congress’s intent in enacting the two different
acts.
In order to put in context the purpose and structure
of the 1975 and 1989 acts, it is helpful to look back at the
history of Congress's efforts at constructing a pay struc-
ture for federal employees, particularly senior employees,
including the members of Congress themselves. At bot-
tom lies a problem that has plagued the nation since its
inception.
The Constitution assigns to Congress the respon-
sibility for establishing the compensation to be received
by senior federal officials: Members of Congress “shall
receive a Compensation for their Services, to be ascer-
tained by Law” (U.S. Const. art. I, § 6); the President shall
receive “a Compensation, which shall neither be
increased nor diminished during the Period for which he
shall have been elected” (U.S. Const. art. II, § 7); the
Judges shall “receive for their Services, a Compensation,
which shall not be diminished during their Continuance
in Office” (U.S. Const. art. III, § 1).
1990); see also Am. Tel. & Tel. Co. v. United States, 177 F.3d 1368,
1381-82 (Fed. Cir. 1999) (en banc) (Plager, J., dissenting). This
case is one of those that proves the validity of the rule by
allowing the exception.
App. 55
From the very beginning, “the historic turmoil sur-
rounding enactment of salary increases” has been a politi-
cal problem for Congress. 1989 Commission on Executive,
Legislative and Judicial Salaries, Fairness For Our Public
Servants at 5 (1988) [hereinafter “1989 Quadrennial Com-
mission Report,” or simply “Report”]. The Report cited as
an example the statement by the Democratic Convention
in 1873, responding to a $2,500 increase Congress had just
voted itself: “We condemn and denounce the salary grab,
and all Congressmen, Democratic or Republican, who
voted for it... . ” Report at 6. More directly apropos of
the problem before us, the 1989 Quadrennial Commission
Report further noted that “[f]rom the beginning, the level
of compensation for Executive branch officials and for
judges has been dominated by the level Congress was
willing to legislate for itself.” Id.
Modern-day federal salary policy begins with the
1967 Federal Salary Act,5 an attempt by Congress to solve
the salary setting problem by changing the process for
fixing salary levels. “The Federal Salary Act sets forth as
public policy the necessity for a regular review every 4
years of the compens.tion of the top officials of the three
branches of government.”® The Act established the Com-
mission on Executive, Legislative, and Judicial Salaries,
which was instructed to meet and report quadrennially.
In the way of government commissions, this became
5 Pub. L. No. 90-206, Title II, § 225, 81 Stat. 613, 642-45
(1967) (codified as amended at 2 U.S.C. §§ 351-61).
6 119 Cong. Rec. $19, 418 (1973) (statement by Senator
McGee when introducing legislation that led to the 1975
Adjustment Act).
App. 56
known as the Quadrennial Commission; the Report
referred to above was the product of the 1989 Quadren-
nial Commission's activity.
The Commission makes its recomendations to the
President regarding salary levels for the senior officials of
the three branches; the President in turn makes his rec-
ommendations to Congress. The President's recommen-
dations take effect subject to a process for Congressional
review. That review process has changed over the years.
As a result of a 1985 amendment, the process in effect at
the time the 1989 Ethics Reform Act was passed provided
that the President's recommendations became effective
automatically, unless and to the extent that a joint resolu-
tion of disapproval of all or part of the recommendations
was agreed to by both Houses within thirty calendar days
after the President’s submission.”
In commenting on the overall unworkability of the
system, the 1989 Quadrennial Commission said:
Over the years, the “Quadrennial Commission”
process has sometimes resulted in approval of
the President’s recommendations and some-
times not. Although the political difficulties
Members [of Congress] face regarding salary
increases have been somewhat cushioned, these
difficulties cannot be eliminated until Congress
enacts legislation delegating the final power to
set high-level Executive, Legislative and Judicial
salaries either to the President or to a bipartisan
commission. .. . |
Report at 7.
7 Pub. L. No. 99-190, § 135, 99 Stat. 1185, 1322-23 (1985).
App. 57
It is worth noting that the “high-level” officials to
which the Commission’s recommendations are addressed
includes the Vice President and 833 other Executive
Branch positions; all Members of Congress and ten Legis-
lative Branch executives, totaling 549; and 1,113 judges
plus two Judicial Branch executives.®
Three years after enacting the 1967 Federal Salary
Act and its Quadrennial Commission system, Congress
enacted the Federal Pay Comparability Act of 1970 (the
“Comparability Act”).? This Act was intended to address
the problem of the disparity between salaries paid to
federal government employees and the higher salaries
paid to persons in the private sector engaged in compara-
ble work. The Act applied to those federal employees
(generally career service employees) who are paid under
what are known as the statutory pay systems; this
includes persons under the General Schedule, the Foreign
Service, and certain groups of professionals in the Vet-
erans Administration. The Act provided for a report
based on information from the Bureau of Labor Statistics,
and for an Advisory Commission on Federal Pay to rec-
ommend to the President, on the basis of the report,
appropriate pay adjustments.
Over the years the effectiveness of the Comparability
Act has been quite limited. For example, as the 1989
Quadrennial Commission noted, between 1984 and 1989
8 These figures do not include a number of other positions
whose salary levels are affected by Commission re-
commendations. See 1989 Quadrennial Commission Report at 9.
9 Pub. L. No. 91-656, 84 Stat. 1946.
App. 58
the Advisory Commission made six annual recommenda-
tions for increases ranging between 18 and 26 percent; the
increases Congress put into effect ranged between 0 and
4.1 percent.!°
Five years after establishing the Comparability Act
pay formula for the benefit of general federal workers,
Congress in 1975 enacted the Executive Salary Cost-of-
Living Adjustment Act (the “Adjustment Act”),!! which
was supposed to provide comparability pay adjustments
specifically for Members of Congress, judges, positions
under the Executive Schedule (the top level of Executive
appointees), and other top positions in the three
Branches. The Act was intended to link pay adjustments
for senior federal officials to the annual pay adjustment
process for the other pay systems.
B. The 1975 Adjustment Act and the Will case
1.
United States v. Will, 449 U.S. 200 (1980), was the
consequence of a challenge to Congressional blocking
acts aimed at preventing COLAs for judges under the
1975 Adjustment Act. In the case now before us, the
Government bases much of its argument in support of the
constitutionality of the blocking acts involved here on the
Supreme Court’s pronouncements in Will. The majority
agrees with the Government, and relies equally on the
language of Will. ,
10 1989 Quadrennial Commission Report at 34 (App. A).
11 Pub. L. No. 94-82, Title II, 89 Stat. 419, 419-23 (1975).
App. 59
To understand the Will case, and to see how its
pronouncements relate to the case at hand, it is necessary
to examine in some detail the terms of the Adjustment
Act, and their origins. The Adjustment Act grew out of
efforts by concerned members of Congress, in particular
in the Senate, to address the inequities in the manner in
which salaries were set for senior government officers. In
1973, the Senate proposed that the Quadrennial Commis-
sions be changed to biennial, so that their recommenda-
tions for salary adjustments would be made every two
years instead of every four. See S. 1989, 93d Cong. (1973)
(introduced June 13, 1973; passed by the Senate July 9,
1973). The bill failed in the House. In 1974, the Senate
Committee on Post Office and Civil Service undertook
hearings to consider three bills (S. 3049, S. 3550, and S.
3551) relating to salary adjustment mechanisms for senior
officials. Executive, Legislative, and Judicial Pay, Hearings
Before the Senate Committee on Post Office and Civil Service,
93d Cong. (June 19-20, 1974). One bill would raise salaries
for executive branch officials pursuant to a recommenda-
tion of the President; one would extend the raises to the
other two branches; and the third would establish a pro-
cedure for annual pay assessment and adjustment for all
three branches, doing away with the quadrennial review
process.
Meantime, in June 1975, the House adopted a minor
piece of legislation to bring the Postal Service under the
Occupational Safety and Health Act. When the House
bill, H.R. 2559, came before the Senate, the Senate Com-
mittee on Post Office and Civil Service used it as a vehicle
for addressing the salary issue. The original Title I, relat-
ing to the Postal Service, was retained, but an entirely
App. 60
new Title II, the “Executive Salary Cost-of-Living Adjust-
ment Act,” was added.!2 The new Title, in section 205,
provided for adjustments to the salaries of federal judges;
other sections contained provisions for adjusting salaries
for Executive Branch officials and for officials of the
Legislative Branch, including members of Congress.’
Subsection (a)(1) of section 205 (set out in the foot-
note below4) contained the language that provided the
formula for an upward salary adjustment for judges any
12 §. Rep. No. 94-333 (1975).
13 Section 202 provided similar adjustment formulas for the
Executive Schedule pay rates; section 203 for the Vice-President;
section 204 for members of Congress, the Comptroller General,
and certain other legislative branch officials.
14 Section 205(a)(1) provided that:
Chapter 21 of title 28, United States Code, relating to
general provisions applicable to courts and judges, is
amended by adding at the end thereof the following
new section:
§ 461. Adjustments in certain salaries
Effective at the beginning of the first applicable pay
period commencing on or after the first day of the
month in which an adjustment takes effect under
section 5305 of title 5 in the rates of pay under the
General Schedule (except as provided in subsection
(b)), each salary rate which is subject to adjustment
under this section shall be adjusted by an amount,
rounded to the nearest multiple of $100 (or if midway
between multiples of $100, to the next higher multiple
of $100) equal to the percentage of such salary rate
which corresponds to the overall average percentage
(as set forth in the report transmitted to the Congress
under such section 5305) of the adjustments in the
rates of pay under such Schedule.
App. 61
time an adjustment (a COLA) in the rates of pay under
the General Schedule’ “takes effect.” This formula was
applied to judicial salary rates by later subsections of
section 205, which amended the specific statutory provi-
sions contained in Title 28 that specified the rates of pay
for the various categories of Article III judges by adding,
after each, the phrase “as adjusted by section 461 of this
title” — “section 461” being a reference to the codified
section where the formula of section 205(a) would be
placed.
In introducing the bill, Senator McGee, chairman of
the committee, explained that discussions had been going
on for several months involving his committee, the com-
panion committee in the House, the Comptroller General,
the President, and the Chief Justice. “We have united on a
very simple legislative proposal for this body, recogniz-
ing that our earlier legislation did not anticipate or at
least did not foresee the impact of double digit inflation
on the reforms that were made in earlier years, both in
the comparative law for the civil service employees and
for the Salary Reform Act of 1967.” 121 Cong. Rec.
$25,373 (July 28, 1975). He then described the existing
mechanism for General Schedule adjustments under the
Comparability Act, and stated that “all the pending mea-
sure does is put under the same mechanism . . . those
persons at the executive level, . . . and the judiciary and
the legislative branches of the Federal Government.” Id.
“H.R. 2559 does nothing to interfere with this present
pay-setting mechanism.” Id. at $25,375.
Chairman McGee further explained that “[t]his bill
would only provide that the annual pay adjustment made
for the bulk of Federal employees in the general schedule
App. 62
and other statutory salary systems would be applied at
the same time and at the same percentage rate to the
salaries of those officials and employees who have
received no pay raises since March 1969.” Id. at $25,374
(emphasis added).
Not unexpectedly, several Senators objected to Title
II, and in particular to including Congress in the pro-
posed COLA formula. See, e.g., id. at $25,379 (remarks of
Senator Harry F. Byrd: “What this tends to do is this
insulates Congress against inflation. And yet, in my judg-
ment, Congress is the major cause of the inflation we are
facing today.”); see also id. at $25,380 (remarks of Senator
Allen, proposing an amendment to eliminate Congress
from the bill). After rejecting several efforts to amend,
including one to strike Title II in its entirety, the Senate
voted 58 to 29, 12 not voting, to approve H.R. 2559 as
amended by the committee.
When the House considered the amended bill, H.R.
2559, containing the Senate’s new Title II, Title Il was the
subject of a rancorous debate. See 121 Cong. Rec.
H25,826-41 (July 30, 1975). The spokesperson for the
amended bill, Congressman Derwinski of Illinois, started
the debate:
The language added in the Senate is not a pay
raise for Members of Congress or any of the
other positions in the executive or judicial
branches mentioned in the bill. It is a procedural
change in the law which will allow for a cost-of-
living adjustment in October, at the same time
that employees under the General Schedule
receive the same adjustment. Therefore, talk of
an 8.6 percent pay increase directly resulting
App. 63
from this bill is incorrect . . . We are considering
a procedural change in the law at this time and
will have the opportunity later this fall to agree
or disagree to a percentage adjustment in sal-
aries.”
Id. at H25,827 (emphasis added).
He went on to describe how, since 1969, senior gov-
ernment officials, including judges, had seen the purchas-
ing power of their salaries reduced by as much as 32
percent. This was because their salaries had remained
frozen, while the Consumer Price Index, a measure of
inflation, had increased 42 percent. The position of these
officials was contrasted with that of the General Schedule
federal employees, who had received 38 percent compa-
rability salary increases during that period.
Mr. Derwinski referred to the annual report of the
Chief Justice, given in February 1975, in which the Chief
Justice had called for an immediate 20 percent increase in
judicial pay scales as a first step toward catch-up. Id. at
H25,828. It was noted that the proposed bill contained no
catch-up provision, and at most would simply halt fur-
ther erosion in the pay levels. Ironically, in light of what
occurred in subsequent years, speakers both pro and con
agreed that in particular the judiciary needed the
increases the bill provided; no one spoke against the
judiciary.15
The opposition to the bill centered on whether Con-
gress should give itself a pay increase every time the
18 E.g., Congressman Hays: “Everybody wants to give the
judges a raise. I do not hear anybody saying they should not
have araise....” Id. at H25,835.
App. 64
General Schedule received a cost-of-living adjustment.
Several members argued that it was Congress's spending
that was the cause of the high inflation the country was
then experiencing. To give themselves such raises was to
encourage even more profligate spending.
The proponents of the amended bill made a particu-
lar point that the pay-fixing procedures under existing
law failed to deal adequately with the problem of infla-
tion. They pointed to the fact that Congress had rejected
the 1974 recommendations of the President for salary
adjustments. Id. at H25,829. They argued that, even if
adjustments were made, the four-year adjustment cycle
under the Quadrennial Commission process was too
widely spaced. Efforts to shorten that cycle to two years
had been defeated. Id. at H25,830. They introduced into
the record a letter from President Ford explaining the
critical need for Congress to address the question of pay
adjustments for senior officials, and supporting the pro-
posed bill.
For our purposes here, it is important to note that
both the proponents and the opponents of the bill viewed
§ 461, the section added to the United States Code by
Title II of the bill, as establishing nothing other than a
formula, a procedural device for adjusting salaries when
the time came to make the decision that COLAs should be
granted. The proponents recognized that the bill pro-
vided for an increase for senior officials when the GS
employees received one, but assured the House that there
would be a further decision in any given year as to
whether a COLA would be granted. The opponents,
though referring to the bill as having an “automatic”
feature, primarily focused their objections on giving
App. 65
themselves a raise based on the cost of living. See, e.g., the
remarks of Congressman Rhodes (“[I]t is with reluctance
that I rise to oppose this rule. I do not oppose all of it. I
think very definitely that the judiciary is in need of a pay
raise. .. . The Congress has more to do with the level of
the cost of living than any other part of the Govern-
ment. . . . I just cannot agree with the idea that we should
be put in the position of benefiting by an increase in the
cost of living.”); Congressman Shuster (“[I]t is wrong for
Members of Congress to ~’ e themselves an automatic
cost-of-living increase because it is the big spenders in
Congress who cause the cost of living to rise through
deficit spending.”). Id. at H25,834. ‘
In the end, the House passed the bill with the Senate
amendment by one vote, 214 to 213, with 7 members not
participating. The President signed the “Executive Salary
—m Adjustment Act” into law on August 9,
2.
: Since compensation of judges is set at an annual
figure and paid monthly, see 5 U.S.C. § 5505, any annual
change in salary under the Adjustment Act would take
effect at the beginning of the Government's fiscal year
October 1. In October 1975, by act of Congress pursuant
to the 1970 Comparability Act, General Schedule salaries
were increased by an average of 5 percent. Federal judges
and other senior officials covered by the 1975 Adjustment
Act received similar increases. In fiscal years 1976, 1977
1978, and 1979, Congress again provided salary ineseodes
for the GS employees pursuant to the Comparability Act
but in each of those years Congress enacted legislation
App. 66
that purported to deny the raises to members of Con-
gress, judges, and the other senior officials covered by the
Adjustment Act.
The exact details of each of these pieces of blocking
legislation, see Will, 449 U.S. at 205-09, and the arguments
concerning their scope, are unnecessary to the point of
this analysis. Suffice it to say that, as a consequence of
their enactment, no judges (or other senior officials)
received a COLA for those years.
In 1978, 13 federal district judges filed suit against
the United States in the District Court for the Northern
District of Illinois, alleging that Congress’s blocking legis-
lation for fiscal years 1976 and 1977 was invalid as an
unconstitutional diminution in salary contrary to the pro-
visions of Article III. The suit was brought as a class
action. Subsequently, in 1979, basically the same group of
judges brought a similar suit with regard to fiscal years
1978 and 1979.
The trial court, which handled both cases, certified
the cases as class actions, and rendered summary judg-
ments for the plaintiff judges. The Government appealed
to the Supreme Court, where the cases were consolidated.
In addition to discussing the scope of certain of the
blocking legislation, a large part of the Court’s opinion in
the Will case was devoted to questions regarding jurisdic-
tion and the application of the Rule of Necessity. We are
not concerned with those issues here; it is the Court's
treatment of the Compensation Clause issue that concerns
us.
In addressing the Compensation Clause issue, the
Court first expounded on the role of the Clause and its
App. 67
central place in the Founders consideration of Article III
of the Constitution. The Court traced the roots of the
Clause to the long standing Anglo-American tradition of
an independent judiciary: “A 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 govern-
ment.” Will, 449 U.S. at 218. After reviewing the history
of the idea that judges’ compensation was related to their
independence, an idea traced back to an English statute
of 1701, the Court explained how both James Madison
and Gouverneur Morris were instrumental in crafting the
provision in the Constitution which captured the idea
that: “The Judges, both of the supreme and inferior
Courts, shall ... receive for their Services, a Compensa-
tion, which shall not be diminished during their Continu-
ance in Office.” U.S. Const. art. III, § 1.
The Court noted that, in addition to promoting judi-
cial independence, the Compensation Clause serves to
ensure that lawyers who leave a lucrative practice to join
the federal judiciary can at least have assurance that their
salaries will not be diminished. This assurance, said the
Court, “has served to attract able lawyers to the bench
and thereby enhances the quality of justice.” Will, 449
U.S. at 221 (citing Evans v. Gore, 253 U.S. 245 (1920) and
Kent’s Commentaries).
Turning to the matter before it, the Court began by
concluding that, in enacting the blocking legislation,
“[t]he clear intent of Congress in each year was to stop
for that year the application of the Adjustment Act.” Id. at
224. The question was, had Congress acted in a way that
constitutionally succeeded in that effort. The Court then
App. 68
analyzed the circumstances that prevailed in each year,
with particular attention to exactly when the blocking
legislation was enacted.
Because of the potential confusion in dates resulting
from the fact that the Government's fiscal year does not
coincide with the calendar year, the Supreme Court in its
decision in the matter referred to these years as years 1
through 4. For consistency, I will do likewise. With regard
to year 1, the Court concluded that the blocking legisla-
tion was enacted after the COLA increase under the
Adjustment Act had taken effect. Under the Adjustment
Act, the increase “was operative with the start of the
month - and the new fiscal year — at the beginning of the
day.” Id. at 225. The blocking legislation was signed by
the President during the day of October 1, after the salary
increase was already in force. The Court held that the
blocking legislation “diminished” the compensation of
federal judges, and was, as to them, unconstitutional. Id.
Since the blocking legislation in year 4 was also effective
after October 1 of that year, the same result obtained. Id.
at 230.
Years 2 and 3 presented a different problem. In both
of those years, the blocking legislation was enacted prior
to October 1. The only issue, then, was whether Congress,
in enacting the Adjustment Act, had intended to “vest”
future raises in the judiciary, thus precluding later rescis-
sion of the right to the raises. The District Court held that
Congress had so intended, and that the blocking legisla-
tion in years 2 and 3 were equally unconstitutional. The
Supreme Court disagreed, and held that the blocking acts
in years 2 and 3, passed before the raises became payable
App. 69
in each of those years, were effective to deny judges the
scheduled COLAs.
The Government here argues that Will controls the
case before us. As a result of a 1990 revision of the 1970
Comparability Act, the effective date for cost-of-living
adjustments is the first day of the first pay period begin-
ning on or after January 1. In each of the years in
question in these cases, the blocking acts were enacted
prior to that date. Just as in years 2 and 3 in the Will case,
the Government argues, no vested rights existed in the
judiciary prior to the time that the COLAs actually
became part of the judges compensation in each year.
Thus the blocking legislation, enacted before the adjust-
ment to the salaries appeared in the paychecks, did not
run afoul of the Compensation Clause. The parallel to the
case at hand is obvious, and thus a key issue in this case
is the Supreme Court's treatment of the Adjustment Act
in Will, and whether the circumstances in Will dictate the
outcome here.
The Supreme Court began its consideration of the
matter by stating the obvious: the Compensation Clause
does not erect an absolute ban on all legislation that
conceivably could have an adverse effect on compensa-
tion of judges. Id. at 227. Thus judges must pay income
taxes along with all other citizens. O’Malley v. Woodrough,
307 U.S. 277 (1939).
© Federal Employees Pay Comparability Act of 1990, Pub
—_— § 529, 104 Stat. 1389, 1427 (codified at 5 U.S.C.
App. 70
Importantly, the Court, following the lead of both the
Senate and House proponents of the legislation, charac-
terized the Adjustment Act as an act that “did not
... alter the compensation of judges; it modified only the
formula for determining that compensation. Later, Con-
gress decided to abandon the formula as to the particular
years in question.” Will, 449 U.S. at 227. From this the
Court concluded that Congress’s “departure from the
Adjustment Act policy in no sense diminished the com-
pensation Article III judges were receiving; it refused
only to apply a previously enacted formula.” Id.
In response to the plaintiff judges’ argument that this
case is different from Will because the statute here is not
simply a formula for determining compensation, the Gov-
ernment points to other language in the Will opinion that
suggests a broader rule. As I noted at the beginning of
this opinion, there is language in Will 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.” Id. at 229. The Govern-
ment notes further that the Court went on to say that the
Compensation Clause did not prohibit Congress from
repealing the “planned but not yet effective” COLA for
year 2 (and necessarily 3) when it acted before October 1,
“the time [the COLA] first was scheduled to become part
of judges’ compensation.” Id. The Government finds this
language conclusive of the issue before us.
I disagree. As I have explained, the statement that a
salary increase vests for purposes of the Compensation
Clause only when it takes effect as part of the compensa-
tion due and payable to a judge necessarily asks the
question: When is the salary increase due and payable?
App. 71
Though I can agree with the Government that, read
broadly, and without due consideration for differences
between the Adjustment Act and the Ethics Reform Act,
this language could be applied undiscriminatingly to the
case before us, I decline to read the language indepen-
dent of the context in which it was written, and without
regard to important differences between the two statutes
at issue.
In the Supreme Court’s view, as I have noted, the
purpose of the 1975 Adjustment Act was simply to estab-
lish a formula and a mechanism for applying it, so that
Congress, when and if it chose to grant senior govern-
ment officials a cost of living increase, would have in
place the structure for doing so. The debate in the Senate
and particularly the House, with special reference to the
remarks of the sponsors, quoted above, supports that
view.
As the Court viewed it, nothing in the history of the
Act, or in its structure, suggested any commitment by
Congress. The Court described the Act as simply “a
method of calculating salaries” which Congress should be
able to alter before it is executed. Id. at 228. To hold
otherwise, said the Court, “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.” Id. In a footnote fol-
lowing this statement, the Court analogized the formula
provided in the Act to “an indexing scheme.” Id. at 229
n.33. Thus the Court concluded that the Adjustment Act
itself did not cause future COLAs to vest, at least not
until the scheduled date when the increased payments,
pursuant to the formula, were actually paid. As a result,
App. 72
in two of the years at issue Congress effectively recluded
the mechanism from operating to grant COLAs; in two of
the years Congress failed to act in time so that the estab-
lished mechanism operated as prescribed.
C. The 1989 Compensation Issue and
the Ethics Reform Act
1. The Quadrennial Commission Report
The 1975 Adjustment Act was only one of the com-
pensation statutes that the 1989 Quadrennial Commis-
sion, in its Report on government salaries, summarized
with the words: “their application to date has failed to
achieve comparability by a wide margin.” 1989 Quadren-
nial Commission Report at 13. The Report documented
the continuing loss in purchasing power sustained by
senior officials over the past twenty years: “Even though
senior level federal salaries have been increased . . . since
1969, the current salaries of [these officials] have declined
in constant dollars to approximately 65% to 70% of their
salaries in 1969. In contrast, other wage and salary ear-
ners ... have on average modestly increased their pur-
chasing power in constant dollars by about 1.5% since
1969.” Id. at 13. The reference to the year 1969 stems from
the fact that 1969 was adopted as the baseline year for
salary comparisons by the Quadrennial Commissions, as
well as by the Administrative Office of the United States
Courts for judicial salary studies. That was the first year
in which Congress allowed to go into effect a President’s
recommended federal pay raise, based in turn on the
recommendations of the First Quadrennial Commission.
App. 73
The 1989 Quadrennial Commission then made speci-
fic recommendations regarding salary levels for the three
Branches. For the Executive Branch, the Commission was
particularly concerned about compression at the top. This
was the problem created by the statutory salary structure
for senior executive officials, causing the salaries of the
lower levels of such officials to be frozen for years.”
For the Legislative Branch, the Commission focused
on the issue of honoraria - “payments for public appear-
ances to deliver a talk or engage in a colloquy at the
invitation of some non-governmental group, often one
with a material interest in pending or anticipated legisla-
tion.” Report at 24. The Commission detailed the prob-
lems with the widespread practice of accepting honoraria
(Congressional data reported some $9.8 million in hon-
oraria received in 1987 by Members of the House and
Senate),1® and noted that “[t]he only principled argument
that can be made for the practice of accepting honoraria
is that official salaries are far too low and must be supple-
mented by honoraria so that a public official can meet his
minimum family obligations.” The Commission called for
the practice to be terminated by legislation “at or about
the time that the Commission’s recommended salary
increases . . . are allowed to take effect.” Id.
175 U.S.C. § 5308 provides that General Schedule
employees may not be paid at a rate in excess of the basic rate
for Level V of the Executive Schedule.
18 Report of the Bipartisan Task Force on Ethics on H.R. 3660,
Government Ethics Reform Act of 1989, 101st Cong. (1989), 135
Cong. Rec. H9256.
App. 74
With regard to judicial salaries, the 1989 Quadrennial
Commission Report detailed the inadequacies of current
judicial compensation, and stated that “[t]he constant
dollar value of federal judges’ salaries has been eroded to
less than 70% of what it was in 1969.” Id. at 28. With
regard to the honoraria issue, the Report noted that,
compared to the House and Senate, the acceptance of
honoraria has remained a relatively minor source of sup-
plemental income for the judiciary, but that “li]f Congress
allows substantial increases for all branches to take effect
while it also abolishes honoraria for its own members, it
is appropriate that honoraria be abolished in all three
branches.” Id. at 30.
2. The Task Force Report
At the same time that the 1989 Quadrennial Commis-
sion was conducting its hearings on salaries — hearings in
which Members of Congress, Executive officers, and
judges participated - and was developing its report, Con-
gress itself was engaged in a comprehensive review of
ethics rules and regulations. A Bipartisan Task Force on
Ethics was appointed in February 1989 by the Speaker of
the House, charged with reviewing all rules, regulations
and statutes governing the official conduct of members of
the House. In November 1989 the Task Force issued its
report. Report of the Bipartisan Task Force on Ethics on H.R.
3660, Government Ethics Reform Act of 1989, 101st Cong.
(1989), 135 Cong. Rec. H9253 [hereinafter “Bipartisan
Task Force Report”).
The report stated that the principal areas addressed
by the Task Force were subjects such as gifts, honoraria
App. 75
and outside earned income, financial disclosure, and use
of official resources. The report went on to note, however,
that “[d]uring the course of its review, the task force also
examined issues relating to the compensation of Members
and other high government officials.” Id. at H9253. The
recommendations of the Task Force were contained in
what the report described as “the most far-reaching gov-
ernment-wide ethics legislation in over a decade.” Id.
This was the origin of the 1989 Ethics Reform Act.
The proposed act as recommended by the Task Force
dealt with a number of issues, some of which were
directed specifically at the House, its rules and practices,
and some of which were addressed government-wide.
The proposed legislation contained an outright ban on
honoraria for all government officials, and imposed
severe restrictions on outside earned income. It recon-
stituted the Quadrennial Commission into a new Citizens
Commission on Public Service and Compensation, and
made that commission’s salary recommendations,
through the President, subject to Congressional approval,
rather than veto. It provided for House (and later Senate)
ethics rules changes, and for tightened financial dis-
closure requirements.
Importantly for our purposes here, the Task Force
report and recommendations spoke directly to the issue
of the relationship between placing limitations on hon-
oraria and outside earned income, and the need for
adjustments in the salaries of upper-level government
officials. The Task Force noted that, of the seven commis-
sion salary reports and recommendations issued during
the twenty-two years in which the Quadrennial Commis-
sion process for salary adjustments had been in effect,
App. 76
only three had been implemented. Id. at H9264. Most
recently, Congress in February 1989 had rejected the 51
percent pay increase requested by the President, which
request was based on the recommendation of the 1989
Quadrennial Commission. Id.
The Task Force stated, “Directly related to this prob-
lem are the attempts by some top officials who remain in
government to augment their salaries through outside
activities, simply to keep up with the rising cost of liv-
ing. .. . The important point is that [the commissions]?9
which viewed these problems from different perspectives
came to the basic conclusions that top public officials
should be better compensated, that honoraria should be
banned, and that outside employment should be tightly
restricted.” Id. at H9264. The Task Force then recom-
mended that the 1989 and 1990 comparability adjustment
that went to other federal workers but was denied to top
government officials, including judges, be restored. The
Task Force recommended further that beginning in 1991 a
separate index, tied to the rate of change in the Economic
Cost Index (ECI), Be used to establish cost-of-living
increases for these officials, and that top Executive
Branch officials, Members of Congress, and judges should
receive an immediate 25 percent salary increase, all “as
part of a comprehensive ethics package which both abolishes
19 During this period the inadequacies in government
salaries were the subject of other studies as well. See, e.g.,
National Commission on the Public Service (Volcker
Commission), Leadership for America: Rebuilding the Public Service
(1989), in House Comm. on Post Office and Civil Service, 101st
Cong., Report and Recommendations of the National Commission on
the Public Service (Comm. Print 1989).
App. 77
honoraria and imposes strict limits and restrictions on any
outside income and employment.” Id. at H9265 (emphasis
added). The Task Force further elaborated on the connec-
tion between adequate compensation and restrictions on
outside income, saying:
The task force wishes to emphasize that it con-
siders the salary provisions of its recommendations
to be an integral part of the total ethics package
being proposed. Serving as a senior government
official is and should be a full-time job and
should be compensated accordingly. Along with
adequate compensation there should be less
need to supplement income from outside
sources.
Id. (emphasis added).
Legislation entitled the “Government Ethics Reform
Act of 1989,” containing the recommendations of the Task
Force, was submitted as H.R. 3660 on November 15, 1989,
and introduced in debate the next day. In his opening
remarks, Congressman Fazio, one of the sponsors and co-
chair of the Task Force, noted that “this comprehensive
overhaul of House ethics rules and conflict of interest
laws has the full approval of the President, as well as
Democratic and Republican leadership in the House.” 135
Cong. Rec. H29,482 (1989).
In discussing the changes regarding future COLAs,
Congressman Fazio stated: “A final, important part of the
compensation package is included in section 304. Begin-
ning in 1991, senior officials will be governed by changes
in the employment cost index. . . . This should remove
senior salaries from their current vulnerability for politi-
cal demagoguery. Our objective is to maintain fair annual
App. 78
COLA’s for all employees, including Members, judges, Cabi-
net, and other executive level personnel.” Id. at H29,483
(emphasis added).
Under the bill as proposed, General Schedule COLAs
would continue to be based on the standard cost-of-living
index, while the COLAs for senior officials, including
judges, would be based on the Economic Cost Index
(“ECI”)2° The ECI is not actually a cost-of-living index as
that is generally understood, but instead reflects private
sector changes in wages and salaries. Under the proposed
change, the COLAs to be given would be the ECI as
determined by the Bureau of Labor Statistics, less one
half of one percent, with a cap of 5 percent in any one
year.
Congressman Kastenmeier, chair of the Subcommit-
tee on Courts, Intellectual Property, and the Administra-
tion of Justice, rose in support of the bill, and stated: “1
compliment the authors of this bill for their foresight in
including provisions relating to a salary increase for Fed-
eral judges, automatic COLA’s for judges, and a senior
judge certification procedure.” Id. at H29,497.
Several Congressmen who rose in opposition to the
pay raise portions of the bill objected to the fact that the
pay raise provisions were integrated into the ethics
reform provisions, and that there would be only one vote
20 The difference in indices did not remain in effect. In 1990,
as part of the revisions to the 1970 Comparability Act, Congress
applied, effective in 1991, the same index (ECI) to the General
Schedule employees as was applied to the senior officers under
the 1989 Ethics Act. 5 U.S.C. § 5303.
App. 79
on the entire package.?! The proponents of the bill agreed
that the bill was a package, and was so intended. Con-
gresswoman Martin, another sponsor and co-chair of the
Task Force, stated: “The Ethics Reform Act of 1989 is a
comprehensive and interrelated package that either rises
or falls on its merits — one bill, indivisible.” Id. at H29,484.
The bill passed the House 252 to 174. Id. at H29,512-13.
When the bill was taken up by the Senate, there was
a contentious debate between Majority Leader Mitchell
and Senator Helms over whether the pay raise provisions
should be separated from the ethics reform provisions,
Senator Helms insisting that the two should be consid-
ered separately. Senator Helms lost, and the Senate
passed the bill as a package, but with special provisions
applicable to the Senate for phasing in the limits on
outside income. The final bill, as passed by both the
House and Senate, became the Ethics Reform Act of 1989,
Public Law 101-194, and was signed into law by the
President on November 30, 1989. The final bill included
the provision for COLAs for judges and other senior
officials as recommended by the Task Force.
* * *
As the discussion demonstrates, in enacting the 1989
Ethics Reform Act Congress had a different purpose, and
21 E.g., Congressman Johnson, who opposed the bill, noted
that “I am not sure that the pay and ethics issues should be
philosophically linked but, as a practical matter, they are
linked,” 135 Cong. Rec. H29,502 (1989); Congressman Crane
complained that the packaging of the bill was a less than candid
effort to get a pay raise through under the guise of ethics
reform, 135 Cong. Rec. H29,499 (1989).
App. 80
utilized a different structure, than when it enacted the
1975 Adjustment Act, the act that was construed by the
Supreme Court in Will. The purpose of the 1989 Act was
to reform certain practices involving money-raising
efforts by senior government officials that caused ques-
tions about conflict of interest and related ethical con-
cerns. These questionable practices involving fund
raising from private sources were to be prohibited, in
exchange for more adequate government funding. The
more adequate government funding had two compo-
nents. One was an immediate “catch-up” increase in sal-
aries for these officials. The other was a commitment to
regular annual COLAs whenever inflationary pressures
warranted.
The structure of the Act reflects its purpose. In addi-
tion to the immediate catch-up increase, the Act provided
that there would be an automatic pay rate adjustment for
senior government officials any time a COLA was
awarded to General Schedule government employees.
Congress’s clear purpose and intent was to compensate
senior government officials, through automatic pay rate
adjustments, for the continued prohibition against access
to private sources of funding.
There is no ambiguity about Congress’s intent. The
committed pay adjustments were in exchange for the
prohibitions on outside earnings the Congress imposed
on itself, as well as on the other officials covered by the
act. Pay adjustments were to be automatic; whenever
increases in the cost of living, previously met by those
outside earnings, were needed, they were to be met
instead by salary rate adjustments. The President and his
representatives played a pivotal role in the negotiations
App. 81
leading to the adoption of the Act, and were active partic-
ipants in the bargain struck.
When a political bargain is struck by members of the
legislative branch, and codified in legislation, it is appro-
priate that courts recognize and honor the bargain.
In the case of legislation, parties to a statutory
contract are the members of the legislative coali-
tion that enacted the statute, and the contract is
an agreement over public policy. In the tradition
of the economic analysis of contract law, ... the
methods employed by the courts to interpret
legislation should be consistent across cases,
should be faithful to the bargain struck by the
contracting parties, and should take into
account the feedback effect of interpretive prin-
ciples on the efficiency of future negotiations
and agreements.
McNollgast, Positive Canons: The Role of Legislative Bar-
gains in Statutory Interpretation, 80 Geo. L.J. 705, 705-06
(1992).
The Supreme Court in recent years has expressly
recognized the role of legislative compromise in the inter-
pretive process.?? See, e.g., Gen. Motors Corp. v. Romein,
580 U.S. 181, 191 (1992) (upholding the statutory provi-
sions at issue, stating that they were necessary to “pre-
serve the delicate legislative compromise that had been
struck by the 1980 and 1981 laws”); Cmty. for Creative
Non-Violence v. Reid, 490 U.S. 730, 747 (1989) (“[T]he
22 The majority attacks this proposition on the ground that
a statute reflecting a political bargain cannot override a
constitutional principle. See maj. op. at 34. That of course misses
the point, since there is no constitutional principle to override.
App. 82
enactment of the 1965 compromise . . . demonstrates that
Congress intended to provide .... ”); id. at 748 n.14
(“Strict adherence to the language and structure of [an]
Act is particularly appropriate where, as here, a statute is
the result of a series of carefully crafted compromises.”);
United States v. Taylor, 487 U.S. 326, 336 (1988) (“[Appel-
late] review must serve to ensure that the purposes of the
Act and the legislative compromise it reflects are given
effect.”); see also VE Holding Corp. v. Johnson Gas Appliance
Co., 917 F.2d 1574, 1582 (1990) (discussing the role that
legislative compromise played). For a collection and dis-
cussion of the relevant Supreme Court cases, see Court-
ney Simmons, Unmasking the Rhetoric of Purpose: The
Supreme Court and Legislative Compromise, 44 Emory L.].
117 (1995).
That later Congresses, perhaps with different mem-
bers and different political agendas, may choose to pur-
sue different goals does not change the nature of the
compromise struck and the resulting purpose that the
1989 Congress had when it enacted the Ethics Reform
Act. As I read the statute and the record that led up to its
enactment, Congress’s purpose and intent was to commit
itself to making the salary rate adjustments for senior
officials due and payable with the enactment of the Ethics
Reform Act. The adjustments were to be automatic, sub-
ject only to the ‘trigger’ in any given year of a COLA to
the General Schedule employees.
So long as Congress chooses to keep in place the 1989
legislation containing both the prohibitions on fundrais-
ing activities and the concurrent commitment to contin-
ued public funding in exchange therefore, I see no
alternative but to conclude that Congress intended to
App. 83
commit itself to make the payments provided for under
the Act. In terms relevant to the issue before us, the
entitlement of the beneficiaries of the Act to those
exchange payments “took effect” with the enactment of
the prohibitions.
The majority purports to reduce the judges’ position
“to the contention that Congress, once it has enacted a
law promising a future pay increase to federal judges,
may not, as a constitutional principle, amend downwards
or abrogate that promise .... ” Maj. op. at 22. I do not
believe that the judges made any such simplistic conten-
tion. At oral argument Judge Clevenger posed to counsel
a hypothetical that posed such a simplistic case, see maj.
op. at 19, to which he received a simplistic answer. Nei-
ther the question nor the answer addressed the underly-
ing issue of context or purpose behind the legislation.
The majority devotes some pages to attacking the
opinion of the district court in this case, maj. op. at 23-30,
and particularly the district court’s view of United States
v. More. I need not engage in that debate. On appeal we
review judgments, not opinions. The correctness of the
district court’s judgment in favor of the plaintiffs is the
issue before us. .
In my view, for the reasons I have explained, the
judgment of the district court was correct. Any effort by
Congress after 1989 to deny the payments, once a ‘trig-
ger’ award to the General Schedule had been made, was
an unconstitutional diminution in compensation in viola-
tion of Article III of the Constitution. As a result of the
legislative compromise reached, and by Congress’s own
purpose and intent, the right to those COLA adjustments
App. 84
vested, were in effect and due and payable, with the
enactment of the 1989 Ethics Reform Act. Nothing in will
is inconsistent with that result, and certainly there is
nothing in the Constitution to dictate otherwise. On the
contrary, to conclude otherwise is to deny to Congress the
power to make such a decision, and is to undermine the
judiciary’s right to benefit therefrom, both a power and a
right expressly granted by the Constitution.
This said, there should be no misunderstanding
about what I would hold. In my view, Congress was
under no obligation to commit itself to future compensa-
tory payments to senior officials as a precondition to
establishing its ethics standards. That was a choice Con-
gress made. Further, Congress is under no obligation to
keep in place the mechanism, contained in the 1969 Ethics
Reform Act, for compensating senior officials, including
judges. That is a choice open to Congress. As the recited
history of federal salary law demonstrates, Congress from
time to time has revised the salary laws in an attempt to
find a solution to the political dilemma arising from
setting its own compensation, a dilemma to which it has
chosen to tie senior executive and judicial salaries as vel.
Nor does my view say anything about whether the
blocking legislation enacted by later Congresses was
effective to deny to themselves or to Executive Branch
officials the adjustments committed to them by the 1989
Congress. Not every failure of Congress to live up to its
commitments has a remedy in the courts. To the extent a
Congressional commitment is not backed up by some
legally-enforceable rule of law, such as that of contract
law, see, e.g., United States v. Winstar, 518 U.S. 839 (1996),
or, in the case of the federal judiciary, the constitutional
App. 85
command of Article III, there may be no judicially cogni-
zable remedy for the wrong.
What I would hold is that, once Congress put in place
the 1989 Ethics Reform Act, with the intent and purpose
of committing itself to this particular solution to its salary
dilemma, in exchange for the prohibited activities speci-
fied in the Act, the Act must be construed as Congress
intended it. Given the purpose and intent with which
Congress acted in 1989, it is inconsistent with what Con-
gress did to have later ad hoc enactments purport to
provide otherwise. Article III of the Constitution provides
protection for the judiciary against such arbitrary action.
Unlike my colleagues in the majority, I do not believe
the Supreme Court intended to deny to Congress the
power to make such commitments. This is not a case of
the Judicial Branch commanding Congress to carry out an
announced future intent, as was the case in Will. Rather it
is a case of the courts enforcing the will of Congress, and
recognizing Congress’s purpose, that of fulfilling an
obligation it chose to impose upon itself. Given that pur-
pose, I can only conclude that the blocking acts passed in
1995, 1996, and 1997, as well as in 1999, violated the
constitutional command of Article III, and were ineffec-
tive to deny the plaintiff judges and all members of the
class the pay rate adjustments committed to them by the
1989 Act.
Il. THE JURISDICTION QUESTION
The complaint was filed against the United States by
the plaintiff judges in the District Court of the District of
Columbia. The complaint alleged jurisdiction in the trial
App. 86
court under the Little Tucker Act, 28 U.S.C. § 1346(a)(2),
as well as under 28 U.S.C. § 1331, the general federal
jurisdiction provision. After judgment was rendered by
the trial court, the Government; faced with a judgment
adverse to its position, took its appeal to this court.
The Little Tucker Act grants concurrent jurisdiction
to district courts and the Court of Federal Claims over
money claims against the United States “not exceeding
$10,000 in amount.” If a claim against the United States
exceeds that amount, it may be brought only in the Court
of Federal Claims, under the (non-little) Tucker Act, 28
U.S.C. § 1491. This court has exclusive appellate jurisdic-
tion over judgments rendered under either act. 28 U.S.C.
§ 1295(a)(2), (3).
In its appeal, the Government concedes that the dis-
trict court had jurisdiction under the Little Tucker Act
over parts of the case, and hence this court would have
appellate jurisdiction over those parts. Though not seek-
ing reversal of the entire judgment on jurisdictional
grounds, the Government raises questions regarding the
jurisdictional consequences if the amounts claimed for
any one judge, covering several years, are added together
and treated as one claim.
Furthermore, if the case is thought to arise under the
general jurisdiction provision of § 1331, and not under
the Tucker Acts at all, an appeal from the case would go
to the regional circuit court, in this case the Court of
Appeals for the District of Columbia, and not to this
court. However, neither the Government nor the plaintiff
judges have challenged jurisdiction of the district court
under the Little Tucker Act, or the appellate jurisdiction
App. 87
of this court based on that Act. Since the Government
took its appeal here, the Government necessarily accepts
the theory that the core source for jurisdiction in the trial
court was the Little Tucker Act.
The Government's concern focuses on the possible
implications of basing the suit on that Act. The judges
allege for the year 1995 that they were unlawfully
deprived of the value of a cost-of-living increase for that
year. The parties agree that the amount at issue per judge
is about $2,500, and in any event well below the jurisdic-
tional maximum of the Little Tucker Act. The Govern-
ment notes, however, that the $2,500 allegedly owed for
1995 would also be unpaid in 1996, so that another $2,500
would be owed for that year and each year thereafter. If
the annual amounts unpaid in 1995 and in each of the
succeeding years are aggregated, with interest, the total
at the time a final judgment is affirmed would exceed the
$10,000 jurisdictional limit of the district court. The same
_ analysis would have to be made for each of the other
years at issue.
The Government, though not urging this view of the
matter, suggests several possible remedies. One is to
accept jurisdiction in the district court under the Little
Tucker Act, but require the judges to waive any claim to
aggregated amounts in excess of the $10,000 limit.
Another is to permit the district court to transfer to the
Court of Federal Claims those causes of action that
involve aggregated amounts in excess of $10,000.
I appreciate the Government's attention to this mat-
ter. Fortunately I find the question readily resolved with-
out resort to the Government's creative remedies.
App. 88
I see no reason for aggregating the several causes of
action alleged by the plaintiff judges. Each claim for
damages for moneys wrongfully withheld in any given
year for each claimant judge stands as a separate claim or
cause of action. Thus the money alleged to be due the
judge for 1995 is one claim. The alleged failure of the
Government in 1996 to again make a payment due for
that year is yet a separate cause of action. And so for each
year thereafter. By like token, the alleged failure of the
United States to pay a required adjustment first owed for
1996 (presumably in the same $2,500 range) creates a
separate cause of action, different from that related to the
1995 causes of action, so that by the year 1999, for exam-
ple, any one judge may have multiple causes of action
applicable to that year’s damages.
Though at first blush this may appear complicating,
it is in fact a simpler and more straightforward treatment
of the issue than the various perturbations that can be
imagined under any theory of agglomeration. Further-
more, it is consistent with the approach this court took in
the Hatter cases. The Hatter cases also involved a claim by
judges that certain Congressional enactments had
resulted in depriving them of money that was due them
over a period of years. In Hatter v. United States, 185 F.3d
1356 (Fed. Cir. 1999) (Hatter VII), a panel of this court had
accepted the Government's argument that, for jurisdic-
tional purposes involving the application of the statute of
limitations, we should treat each judge’s claim as encom-
passing all moneys due such judge for the entire period
of years involved.
On petition for rehearing en banc, brought by the
plaintiff judges, the decision of the panel on this point
App. 89
was reversed. Hatter v. United States, 203 F.3d 795 (Fed.
Cir. 2000) (en banc) (Hatter VIII). The en banc court held
that, under our governing precedent, in particular the
case of Friedman v. United States, 159 Ct. Cl. 1 (1962), the
claims should have bees treated as stating a separate
cause of action for each pay period, and the jurisdiction
of the trial court with regard to whether individual
causes of action were time barred should be determined
accordingly. The analysis set out in Friedman applies with
equal force here. It is the same analysis, and we are
governed by the same precedent, that governed the en
banc court’s result in Hatter VIII. (I note that the Govern-
ment did not have the benefit of the decision in Hatter
VIII when it submitted its briefs in these cases.) It would
be improper to treat the analogous question of the trial
court's jurisdiction under the Little Tucker Act differently
from the separate cause of action limitations theory enun-
ciated in Hatter VIII.
For purposes of this case, it is not necessary to decide
whether the proper unit for determining the jurisdictional
amount is the dollar amount allegedly due each judge
each month, which is how judges are paid, and as it was
23 The Supreme Court has granted certiorari in Hatter VIII.
United States v. Hatter, 121 S.Ct. 338 (2000) (No. 99-1978). In its
petition for certiorari, the Government raised two questions: (1)
whether Evans v. Gore, 253 U.S. 245 (1920), which this court
treated as good law, remains such; and (2) whether general
salary increases cancel a prior unconstitutional diminution.
With regard to this court’s application of the continuing claim
doctrine, the issue here, the Government expressly declined to
present the issue to the Court as a separate question for review.
Pet. for Writ of Cert. at 29 n.27, United States v. Hatter (No.
99-1978). Hatter VIII remains controlling law on that issue.
App. 90
understood in Hatter VIII, or whether it is the amount
due each judge on an annual basis, as the discussion in
the briefs has presented it. Either way, the amount for
each cause of action is well below the Little Tucker Act
limit. This treatment of the issue disposes of any question
about the jurisdiction of the trial court over all of the
claims, as well as any question regarding this court's
jurisdiction to hear the appeal.
Ill. THE SECTION 140 ISSUE
As I stated at the beginning, I agree with the majority
that Section 140 of Pub. L. 97-92 does not stand as a bar to
the judges’ suit. However, I believe that more needs to be
said about it to explain why adequately.
The decision in Will, holding that two of the annual
increases vested despite Congress’ attempts to block
them, did not meet with unanimous approval among
certain Congressional officers. In the immediacy of the
event, Senator Robert Dole responded to the Court’s deci-
sion by attaching to a then-pending continuing appro-
priations resolution a one-paragraph statement that read,
in relevant part:
Notwithstanding any other provision of law or
of this joint resolution, none of the funds appro-
priated by this joint resolution or by any other
Act shall be obligated or expended to increase,
after the date of enactment of this joint resolu-
tion, any salary of any Federal judge or Justice
of the Supreme Court, except as may be speci-
fically authorized by Act of Congress hereafter
enacted ....
App. 91
Beyond statements by Senator Dole made at the time, and
which he later recanted (discussed below), there is no
legislative history explaining the purpose of the provi-
sion beyond its text - the provision was not the product
of any committee deliberation or recommendation, nor
was it considered or debated by the Senate or the House.
Public Law 97-92, enacted December 15, 1981, to
which Section 140 was attached, was a joint resolution
providing for continuing appropriations for specified
governmental units for fiscal year 1982. H.R.J. Res. 370,
Pub. L. No. 97-92, 95 Stat. 1183 (1981). Under section
102(c) of Public Law 97-92, the “authority granted” by the
resolution was available, unless otherwise provided in
subsequent legislation, from December 15, 1981 until
March 31, 1982. The March 31 termination date was later
extended to September 30, 1982. H.R.J. Res., Pub. L. No.
97-161, 96 Stat. 22 (1982).
Because Section 140 seemed to single out the salaries
of the judiciary for treatment different from that of all
other federal employees, including Congress itself, it was
not long after the appropriations resolution expired in
September 1982 that the question arose as to the continu-
ing vitality of the provision. As a general rule, “(since an
appropriation act is made for a particular fiscal year, the
starting presumption is that everything contained in the
act is effective only for the fiscal year covered.” 1 United
States General Accounting Office, Principles of Federal
Appropriations Law 2-29 (2nd ed. 1991) [hereinafter Princi-
ples]. Thus rules of both the Senate and the House of
Representatives prohibit ‘legislating’ in appropriations
acts. Id. at 2-28.
App. 92
Nevertheless, on occasion, when the “language used
_or the nature of the provision makes it clear that
Congress intended it to be permanent,” the Comptroller
General, the head of the General Accounting Office, has
opined that a provision contained in an appropriations
act should be considered permanent legislation, with con-
tinuing vitality even after the expiration of the appropria-
tions bill itself. See Principles at 2-29 to 2-33.
By letter dated October 1, 1982, the Comptroller Gen-
eral advised the chairman of the House Committee on
Appropriations that, in the Comptroller General's view,
Section 140 should be considered to be permanent legisla-
tion. The Comptroller General stated that "Ppanding
alone, the language of Section 140 “by any other act ”
after the date of enactment of this resolution’ is not
persuasive as to permanency. However, the additional
phrase ‘except as may be specifically authorized by Act of
Congress hereafter enacted’ does lead us in that direc-
tion.” Furthermore, the Comptroller General could not
find any function for the provision unless it had continu-
ing application after September 30, 1982, since the ee
regularly scheduled COLA would not take effect unti
October 1 of that year. From this, the Comptroller General
reasoned that the provision must have been intended to
have effect after the normal termination of the appropria-
tions resolution.
Over the objections of the judiciary, this opinion was
followed in subsequent opinions of the Comptroller Gen-
eral regarding salary increases for judges. See Federal
Judges, 62 Comp. Gen. 54 (1982) [hereinafter Federal Judges
I]; Federal Judges II, 62 Comp. Gen. 358 (1983); Federal
Judges III, 63 Comp. Gen. 141 (1983). In one year the
App. 93
Comptroller General concluded that Congress had pro-
vided the necessary “specifically authorized” act of Con-
gress, see Federal Judges II; in other years not, see Federal
Judges I; Federal Judges III.
In 1986, Circuit Judge Frank M. Coffin, then chair-
man of the Judicial Conference Committee on the Judicial
Branch,”4 asked the Comptroller General to reexamine his
position in light of new evidence regarding Congress’s
intent at the time of enactment of Section 140. The new
evidence was a letter from Senator Dole, purporting to
clarify his intent with respect to Section 140 when he
introduced it as an amendment to the 1981 appropriations
resolution. As the Comptroller General explained, Sena-
tor Dole’s letter stated that the amendment was offered as
an accommodation to another Senator; that it was pre-
pared by that Senator’s staff; and that the intent was to
limit the application of the amendment to the fiscal year
in which it was enacted. Federal Judges IV, 65 Comp. Gen.
352, 354. The letter further made reference to the Senate
rule not to attach permanent legislation to continuing
appropriations resolutions. Id. at 354.
The Comptroller General, however, declined to g
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