556 F.2d 1028 (Ct. Cl. 1977)
In these three consolidated cases, 140 United States circuit and district judges have sued the Government to recover additional compensation they allege is due them under the Constitution of the United States for their services as federal judges since March 15, 1969.
Plaintiffs allege that each of them has been appointed to his present office pursuant to article II, section 2, of the Constitution, and that each of them has served in the office to which he was appointed during all or a part of the period commencing March 15, 1969, and extending up to the present time. These suits have been filed in this court under the Tucker Act, 28 U.S.C. § 1491 (1970), to recover money damages plaintiffs allege are presently due them by the Government. Plaintiffs’ petitions contain two counts, which may be described briefly as follows:
(1) Count I: Plaintiffs allege that article III, section 1, of the Constitution, prohibits the executive and legislative branches from reducing, directly or indirectly, the dollar amount of judicial salaries, and also obligates those two branches of the Government to take such action as from time to time may be necessary to prevent diminishment of judicial compensation as a result of substantial reductions in the value of money.
The salary of plaintiffs remained unchanged between March 15, 1969, and October 1, 1975. Between those dates, the real value of the dollar, measured by the Consumer Price Index (CPI), decreased by 34.4 percent. As a result, the real value of the compensation for each district judge was diminished from $40,000 to about $26,200, and the real value of the salary of a circuit judge was reduced from $42,500 to about $27,800, according to plaintiffs.
Both the executive and legislative branches, plaintiffs claim, acted affirmatively to prevent federal judges from receiving salary increases designed to offset the diminution in compensation caused by inflation. Pursuant to the so-called Federal Salary Act of 1967, 2 U.S.C. §§ 351 et seq. (1970) (hereinafter the Salary Act or the Act), the Commission on Executive, Legislative, and Judicial Salaries (the Commission) recommended in 1973 that the salaries of federal judges be increased by about 25 percent. However, the President submitted to Congress a recommendation that judicial salaries be increased 7.5 percent in each of the fiscal years 1974, 1975, and 1976. Had Congress taken no action, the increases proposed by the President would automatically have gone into effect, but the Senate voted to prevent the increases. On August 9, 1975, the Executive Salary Cost-of-Living Adjustment Act, Pub. L. 94-82, 89 Stat. 421 (codified at 2 U.S.C. § 31 (Supp. V, 1975)), was enacted. Plaintiffs say that it incorporates and perpetuates the diminution in the real value of judicial compensation which had occurred since March 1969. As a result of these actions by the President and Congress, the salary of a district judge on October 1, 1975, was set at $42,000, but when expressed in real terms is equal to $27,510, according to plaintiffs. As of the same date, the salary of a circuit judge was set at $44,625, but when expressed in real terms is equal to $29,230 by plaintiffs’ calculation.
“The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”
As a consequence of the foregoing, plaintiffs allege that they have suffered an unconstitutional deprivation of earnings, because their salaries have been diminished.
Plaintiffs also allege that Congress has discriminated against judges in dealing with the problem of inflation as compared to their own Members and to other Government employees. They point out that Congress raised most Government employees’ salaries 36.5 percent between December 1969 and 1975; and raised the salaries of starting Government lawyers 59.32 percent between March 1969 and October 1975; and raised the pay of all Armed Forces to more than twice their former level; and raised the salaries and size of its own staff and increased its own allowances, but judges’ salaries were not raised at all. The plaintiffs say this discrimination violates article III, section 1, of the Constitution.
(2) Count II: In the Salary Act, Congress authorized the President to adjust judicial salaries every fourth year. As mentioned above, he recommended that judicial salaries be increased 7.5 percent in each of the fiscal years 1974, 1975, and 1976, and these recommendations would have become effective but for S. Res. 293, 93d Cong., 2d Sess., 120 Cong. Rec. 5508, which disapproved the President’s recommendations on March 6, 1974, pursuant to 2 U.S.C. § 359 (1)(B) (1970). Plaintiffs allege the action of the Senate was an unlawful and an unconstitutional exercise of executive power reserved to the President by article II, section 1, of the Constitution. Furthermore, they say that the Senate resolution did not constitute the enactment of legislation in accordance with the requirements of article I, sections 1 and 7, of the Constitution. The allegedly unconstitutional provision (section 359(1)(B)) is claimed to be severable from the remainder of the Act. Therefore, plaintiffs say, the salary adjustments recommended by the President became legally effective in March of 1974, which entitled them to a 7.5-percent salary increase in March 1974, and a like increase in March 1975, and the same increase in March 1976, making a total salary increase to date of 24.23 percent. Plaintiffs seek to recover these increases in salary as back pay which they allege is presently due them. Plaintiffs have filed a motion for summary judgment.
Defendant has filed a motion to dismiss plaintiffs’ petitions, alleging: (1) plaintiffs have been fully compensated according to law because the Constitution does not grant plaintiffs an enforceable right to money equal to the impact of inflation on their compensation, (2) the claim of plaintiffs is nonjusticiable, (3) section 359(1)(B) is inseverable from the remainder of chapter 11, title 2, U.S.C. (2 U.S.C. §§ 351-361), and therefore that chapter cannot be the basis for a recovery of money damages by plaintiffs, and (4) alternatively, even if section 359(1)(B) is unconstitutional and severable, the remainder of the Act should be applied prospectively only and should not be the basis for a recovery of back pay by plaintiffs.
The Senate and House of Representatives of the United States Congress have filed amici curiae briefs, at the invitation of the court, in which they allege as to count II that the Constitution commits to Congress the exclusive power to ascertain judicial salaries by any means it deems “necessary and proper” and that section 359(1)(B) is such means; that such section is constitutional and is not outlawed by the separation-of-powers doctrine; that plaintiffs’ claim in count II involves a political question and is nonjusticiable; that the “one-House veto” is valid and constitutional; and that section 359(1)(B) is inseverable from the remainder of the Act.
The case is before the court on plaintiffs’ motion for summary judgment and defendant’s motion to dismiss plaintiffs’ petitions. The parties agree that there are no facts in dispute on the issue of liability.
A threshold question of whether or not the judges of the Court of Claims are disqualified from deciding the instant suits because of the provisions of the Judicial Disqualification Act, 28 U.S.C. § 455 (Supp. V, 1975), and the requirements of Canon 3C(l)(c) of the Code of Judicial Conduct of the American Bar Association adopted by the Judicial Conference of the United States, must be decided by the court. All parties agree that the judges of this court are article III judges and receive the same salary that the circuit judges who are plaintiffs in the instant cases receive. Consequently, the judges of this court have an indirect interest in the subject matter of the controversy that could be substantially affected by the outcome of these proceedings. However, the judges of this court have no direct financial interest in these cases, since none of the judges is a party nor owns any legal or equitable interest, however small, in the claims the plaintiffs are asserting, nor in any party to the proceedings. The plaintiffs do not maintain their suits as class actions.
The Judicial Conference of the United States adopted the Code of Judicial Conduct of the American Bar Association with modifications approved April 6, 1973, and March 6, 1975. Canon 3C(l)(c), as adopted by the Conference, provides:
(1) A judge shall disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
(c) he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.
By resolution of March 6, 1975, the Conference also provided that Canon 3D should be stricken from the Code as adopted by the Conference so that a judge’s disqualification on account of his financial interest may not be waived by agreement of the parties.
On December 5, 1974, 88 Stat. 1609, the Judicial Disqualification Act cited above was enacted. It provides as follows:
§ 455.
(a) Any justice, judge, magistrate, or referee in bankruptcy of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(d) (4) “financial interest” means ownership of a legal or equitable interest, however small, * * *.
(e) No justice, judge, magistrate, or referee in bankruptcy shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). * * *.
After the filing of the present suits, the court, mindful of the above provisions of the Code of Judicial Conduct and the Disqualification Act, and being troubled about whether the judges were disqualified to decide these cases, sought guidance from the Supreme Court of the United States by certifying the following question to that Court:
In view of the express provisions of Pub.L. 93-512 and the resolutions of the Judicial Conference as set forth above, are the judges of the Court of Claims required to disqualify themselves in these cases, or does the “doctrine of necessity” authorize and require the judges of the Court of Claims to hear and decide these cases.
Thereafter, the Supreme Court called upon the parties to submit briefs, which was done. In the brief for the Government, the Honorable Robert H. Bork, Solicitor General of the United States, stated emphatically that the first portion of the certified question should be answered in the negative and the second portion should be answered in the affirmative. The Solicitor General stated that the United States “hereby waives” that provision of 28 U.S.C. § 455 (a) which provides that a judge must step aside “in any proceeding in which his impartiality might reasonably be questioned.” He stated further that the provisions in section 455(b)(4) which prohibit a judge from deciding any case in which he has “a financial interest in the subject matter in controversy” or “an interest that could be substantially affected by the outcome of the proceeding” which cannot be waived because of section 455(e), should not be interpreted to mandate recusal where, as here, the option of selecting another judge is unavailable. He pointed out that the legislative history strongly suggests that had Congress focused on the unusual problem presented by these cases, it would explicitly have made section 455(b) waivable or inapplicable in this situation. The Solicitor General stated further:
In sum, we believe that the judges of the Court of Claims are not required by 28 U.S.C. (Supp. IV) 455 to disqualify themselves and that the “rule of necessity” authorizes the judges of the Court of Claims to hear and decide these cases. * * *.
The plaintiffs agreed completely with the Solicitor General in their brief filed in the Supreme Court, and took the unequivocal position that the “rule of necessity” not only authorized the judges of the Court of Claims to decide these cases, but also required them to do so.
After considering the briefs of the parties, the Supreme Court dismissed our certified question without comment or opinion. Having failed to obtain guidance from the Supreme Court, we concluded that we must determine for ourselves whether or not we are disqualified from deciding these cases because of the Code of Judicial Conduct and the Judicial Disqualification Act. This requires a consideration and discussion of the “rule of necessity” mentioned above.
At the outset, it must be kept in mind that these cases are suits against the United States for money damages amounting to more than $10,000. Under the law, the cases are required to be filed in this court, as no other court has jurisdiction of suits of this nature. Therefore, the cases have to be tried in this court. If the judges of this court are disqualified because of their indirect interest in the subject matter in controversy or because of any other interest that could be substantially affected by the outcome of the proceedings, all of the other judges of the United States are similarly disqualified. There is no federal judge who would be available to try the cases. Situations of this kind caused a doctrine known as the rule of necessity to be developed in the law.
The rule of necessity was a part of the English common law and has been traced back to 1430 and the Year Books. Dimes v. Grand Junction Canal Co., 10 Eng. Rep. 301, 313 (1852). See also, The Independence of the Judiciary, 34 Can. B. Rev. 769, 790 (1956); and Frank, Disqualification of Judges, 56 Yale L.J. 605, 609-10 (1947). The rule, simply stated, means that a judge is not disqualified to try a case because of his personal interest in the matter at issue if there is no other judge available to hear and decide the case.
The rule of necessity has been applied many times by state courts. The cases of McCoy v. Handlin, 153 N.W. 361 (S.D. 1915), and State ex rel. Gardner v. Holm., 62 N.W.2d 52 (Minn. 1954), involved the payment of judicial salaries. In the latter case, the Supreme Court of Minnesota held:
- [W]e must frankly admit that there is such an indirect interest that were it possible to do so we should all be happy to declare ourselves disqualified. Nothing is better established than the principle that no judge or tribunal should sit in any case in which he is directly or indirectly interested. * * * However, this principle must yield to the stern necessities of a case; and when there is no other tribunal that can determine the matter, it is the duty of the court, which would ordinarily be disqualified, to hear and determine the case, however disagreeable it may be to do so. The judicial function of courts may not be abdicated even on the grounds of interest when there is no other court that can act. * * *. [62 N.W.2d at 53-54.]
The rule has been applied consistently in federal courts. It has been applied in many cases notwithstanding the existence of disqualification statutes.
The controlling decisions of the Supreme Court on the subject of the rule of necessity are the three decisions in Evans v. Gore, 253 U.S. 245 (1920), Miles v. Graham, 268 U.S. 501 (1925), and O’Malley v. Woodrough, 307 U.S. 277 (1939). Each of those cases involved plaintiffs who were judges claiming that the Federal Government could not constitutionally require an article III judge to pay income tax. Each of those cases was decided in the presence of a statute which disqualified a judge who was “in any way concerned in interest in any suit pending * * *.” 36 Stat. 1090 (1911). The Evans Court, discussing the question of disqualification, held:
- Because of the individual relation of the members of this court to the question, * * * we cannot but regret that its solution falls to us; and this although each member has been paying the tax in respect of his salary voluntarily and in regular course. But jurisdiction of the present case cannot be declined or renounced. The plaintiff was entitled by law to invoke our decision on the question as respects his own compensation, in which no other judge can have any direct personal interest; and there was no other appellate tribunal to which under the law he could go. He brought the case here in due course, * * *. In this situation, the only course open to us is to consider and decide the cause, — a conclusion supported by precedents reaching back many years. * * *. [253 U.S. at 247-48.] [Emphasis supplied.]
After surveying the field, a leading authority on administrative law wrote in 1958 that Evans v. Gore, supra, still states the law of this subject. 2 K. Davis, Administrative Law Treatise § 12.04 (1958).
In the case of Brinkley v. Hassig, 83 F.2d 351, 357 (10th Cir. 1936), the court held:
From the very necessity of the case has grown the rule that disqualification will not be permitted to destroy the only tribunal with power in the premises. If the law provides for a substitution of personnel on a board or court, or if another tribunal exists to which resort may be had, a disqualified member may not act. But where no such provision is made, the law cannot be nullified or the doors to justice barred because of prejudice or disqualification of a member of a court or an administrative tribunal. * * *. [Emphasis supplied.]
Two recent cases that have been decided since the enactment of the present disqualification statute, in which the rule of necessity was applied, are United States v. Corrigan, 401 F.Supp. 795 (D. Wyo. 1975), and Turner v. American Bar Ass’n, 407 F.Supp. 451 (N.D. Tex. 1975). In the Corrigan case, the court held:
Another statute, 28 U.S.C. § 455, provides that a judge shall disqualify himself in any case in which he has a substantial interest or his impartiality might be questioned. Ordinarily when a judge is named as a defendant in a suit brought by a defendant before him in trial, such judge should automatically disqualify himself.
However, necessity may obviate this rule when virtually no judge would be available to hear the suit because all federal judges are co-defendants. See Butler and Daly v. The ABA, et al., No. 75-C-72 (N.D.Ill., order entered by Judge Frank McGarr on Jan. 9, 1975); Evans v. Gore, 253 U.S. 245, 40 S.Ct. 550, 64 L.Ed. 887 (1920); Brinkley v. Hassig, 83 F.2d 351 (10th Cir. 1936). In this situation, if we were to disqualify ourself [sic] from hearing the matter on the ground urged by defendant, there would be few, if any, federal judges who could hear the trial and none in this circuit. Thus, we conclude that the necessity for the case to be heard by a federal judge militates strongly against disqualification of this judge. [401 F. Supp. at 798.]
In the Turner case, the court stated:
With respect to disqualification in civil actions where the trial judge to which the case happens to be assigned is also a defendant in the same action, 28 U.S.C.A. § 455 would require that the judge disqualify himself. This Court notes, however, that there is a maxim of law to the effect that where all are disqualified, none are disqualified. Evans v. Gore, 253 U.S. 245 * * *. The theory supporting this maxim is that if disqualification operates so as to bar justice to the parties and no other tribunal is available, the disqualified judge or judges may by necessity proceed to judgment. 48 C.J.S. Judges § 74. Although this maxim would allow the Supreme Court to proceed where all or a quorum of the Justices have been sued, it would seemingly not allow a District Court Judge to proceed if other judges are available by substitution. Brinkley v. Hassig, 83 F.2d 351 (C.A.10, 1936). [407 F.Supp. at 483.]
All of the foregoing cases applying the rule of necessity were decided against a background of statutes providing for the disqualification of interested judges. The courts have not hesitated to apply the rule in situations where to do otherwise would result in closing the doors of the courts to litigants.
The first disqualification statute in the United States was the Act of May 8, 1792, ch. 36, § 11, 1 Stat. 278, which was amended by the Act of March 3, 1821, ch. 51, 3 Stat. 643, quoted in Spencer v. Lapsley, 61 U.S. (20 How.) 264, 266 (1857). The Act was further amended by the Act of March 3, 1911, ch. 231, § 20, 36 Stat. 1090. The 1911 statute was the law when Evans v. Gore, supra, Miles v. Graham, supra, and O’Malley v. Woodrough, supra, were decided. It provided:
Sec. 20. Whenever it appears that the judge of any district court is in any way concerned in interest in any suit pending therein, or has been of counsel or is a material witness for either party, or is so related to or connected with either party as to render it improper, in his opinion, for him to sit on the trial, it shall be his duty, on application by either party, to cause the fact to be entered on the records of the court; and also an order that an authenticated copy thereof shall be forthwith certified to the senior circuit judge for said circuit then present in the circuit; and thereupon such proceedings shall be had as are provided in section fourteen.
The 1911 statute was amended by the Act of June 25, 1948, to read:
Any justice or judge of the United States shall disqualify himself in any case in which he has a substantial interest * * *. [Ch. 646, § 455, 62 Stat. 908 (1948).]
The legislative history of the 1948 revision discloses no indication whatsoever that Congress intended to modify or to repeal the pre-existing rule of necessity. Indeed, cases invoking that rule have been decided since the enactment of the 1948 statute, and, as previously mentioned, a leading commentator noted in 1958, after surveying the relevant law, that Evans v. Gore, supra, is “still a realistic guide on the rule of necessity.” 2 K. Davis, Administrative Law Treatise § 12.04 (1958). See also, United States v. Corrigan, supra, and Turner v. American Bar Ass’n, supra.
The statute was amended again in 1974, which is our present statute, quoted above at the outset of this discussion. The purpose of the 1974 revision was to conform statutory law with the Code of Judicial Conduct of the American Bar Association as adopted with modifications by the Judicial Conference of the United States. There is no mention in the reports of the adoption of the Code by the Judicial Conference nor in the legislative history of the 1974 revision of the rule of necessity, nor is there any indication therein of any intent or purpose to change or in any way to overturn that well-established doctrine.
A cardinal principle of statutory interpretation is that, in the absence of a clearly expressed intent to the contrary, the revision or recodification of a statute indicates approval of court interpretations of the statute made prior to reenactment. Also, it is not presumed that the common law is changed by the passage of a statute which gives no indication that it proposes such a change. 2A C. Sands, Sutherland Statutory Construction § 45.12 (1973). Since the common law rule of necessity was not mentioned in the legislative history of the 1974 statute, it is our view, along with that of the courts in United States v. Corrigan, supra, and Turner v. American Bar Ass’n, supra, that the rule is a viable maxim today, and that it is as applicable to present day litigation, in proper cases, as it was at any time during the history of our jurisprudence.
It should be pointed out that at oral argument of these cases, the Honorable Rex E. Lee, Assistant Attorney General of the United States, in answer to a question of the Chief Judge of our court, and speaking for the Government, stated unequivocally that he and the Department of Justice agreed with and adopted the statement in the brief of the Solicitor General, filed in the Supreme Court in connection with our certified question, that the judges of the Court of Claims are not required to disqualify themselves in these cases and that the doctrine of necessity authorizes and requires the judges of this court to decide the cases.
As judges of this court, we find ourselves in much the same position as the judges in Evans v. Gore, supra. We regret that it falls our lot to decide these cases, and we would much prefer that a resolution of the controversy not be our responsibility. Nevertheless, we realize that the plaintiffs are entitled to have their cases heard and decided by a court of the United States, and under the law there is no other court to which they could go. Should we refuse to hear and decide their cases, the doors of the courts would be closed to them. This could amount to a denial of due process under the 14th amendment to the Constitution. See Boddie v. Connecticut, 401 U.S. 371 (1971). It is a fundamental principle of our jurisprudence that access to the courts to secure and establish important rights should be made available to all citizens at all times. This is particularly true where the complaining parties are asserting claims under the Constitution, as in the instant cases.
We hold that under the rule of necessity we are qualified, authorized, and required to decide the instant cases, and on that basis we will proceed to do so in the following portions of this opinion.
Moving to the merits of the case, plaintiffs argue that the failure of Congress to raise their salaries by more than 5 percent since 1969, coupled with severe economic inflation in the interim, is in violation of the constitutional provision which states that federal judges “shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” U.S. Const, art. III, § 1. Plaintiffs ask the court to vitiate Congress’s alleged disobedience of the Constitution by awarding them back pay in order to equalize the “real dollar value” of their salary payments since 1969, as measured by the CPI, with the level of compensation that Congress set for them in that year. Defendant replies that this court lacks jurisdiction to decide this case, that even if the court has power to rule on plaintiffs’ claim the Constitution affords them none of the protection against inflation that they assert it does, and that in any event the present controversy is nonjusticiable. We will first review the economic circumstances that led plaintiffs to bring this action, and then discuss and determine the validity of plaintiffs’ claim and defendant’s objections.
In 1967, Congress enacted the Salary Act, which provided for a special Commission to meet quadrennially to recommend adjustments in congressional, judicial, and certain top level executive salaries. The Commission is composed of nine members, appointed from private life; three are appointed by the President, one of whom is designated the chairman; two are appointed by the President of the Senate; two by the Speaker of the House; and two by the Chief Justice. 2 U.S.C. § 352 (1). Under the Act, Commission recommendations are considered by the President, who then transmits to Congress in his annual message in the year after the Commission meets the salary adjustments, if any, that he deems appropriate. These pay levels take effect automatically after the budget message has been before Congress for 30 days, unless either House of Congress passes a simple resolution opposing the salary changes, or unless a statute has been enacted in the meantime setting new pay scales. Pursuant to this plan, a Commission convened in 1968, the President passed along his recommendations to Congress in January 1969, and the congressional, judicial, and top executive salaries thus recommended took effect in March 1969. As previously noted, in 1973 a new Commission met, but this time the Commission’s suggestions embarked on a rocky and ultimately fatal course. The 1973 Commission, noting the high rate of economic inflation during the preceding 4 years, proposed increases of roughly 25 percent in the salaries over which it had cognizance. President Nixon modified this, submitting to Congress in January 1974 pay raises of about 7.5 percent per year for 1974, 1975, and 1976. The Senate, however, balked at even this much of an increase, and voted on March 6, 1974, to adopt S. Res. 293, preventing the salary adjustments from taking effect. Congress did approve, effective October 1975, a 5-percent upward adjustment in the compensation of judges, top administrators, and its own Members — the only change in their compensation from March 1969 through the end of 1976.
Unfortunately, in the same period, the economic inflation experienced by the nation was not as susceptible to blockage by congressional veto. According to an economist’s affidavit submitted on plaintiffs’ behalf, the CPI rose by more than 52 percent between March 1969 and October 1975, meaning a 34.4-percent decrease in the real value of the dollar over the same period. The affidavit further recites that from mid-1969 to mid-1974, while the CPI rose nearly 35 percent, the average weekly pay of American wage earners and the earnings of American lawyers increased at approximately that same rate, and salaries of top business executives increased by 60 percent on the average. When wage and price figures for 1976 are added to this picture, the inflationary distortion of the dollar becomes even more dramatic. The recently filed report of the Commission (Dec. 1976) notes:
During the time in question — 1969 to 1976 — in which * * * [top federal executives, judges, and congressmen] received a total 5% increase, average hourly private non-farm earnings increased by 70.1%. The Consumer Price Index for urban wage earners and clerical employees went up nearly as rapidly, by 60.5%.
General Schedule Federal Civil Service pay increased on the average during that period by 65.7%, and in the so-called “super grades” GS 16 - 18, by 48.9%.
The 1976 survey of executive pay ($30,000 to $65,000) in 318 private companies showed a salary increase during those seven years of 52.5% in all companies and of 58.6% in companies where no bonuses were paid.
The Administrative Office of the United States Courts informed the Commission in November 1976 that, taking into account the 1975 5-percent increase in salary, the average after-tax purchasing power of federal judges and justices declined by 36 percent from March 1969 through the first months of 1977. The Administrative Office noted, by contrast, that in the same period the salaries of auditors rose 50.7 percent, job analysts 52.3 percent, engineering technicians 55.6 percent, personnel directors 58.9 percent, and chief accountants 59.4 percent.
It appears from plaintiffs’ submissions of record and from the foregoing reports of which we take notice, Fed. R. Evid. 201, that plaintiffs, their brethren on the federal bench, Members of Congress, federal employees on the Executive Schedule, and those Americans living on fixed incomes not affected by increased Social Security, pension, and welfare benefits, comprise the class of citizens who have borne the brunt of inflation. Their compensations have not kept up substantially with the rising, at times skyrocketing, cost of living, reflected by inflation which in 1974 alone rose to 12.2 percent. For the federal judge, according to the Administrative Office, this almost singular decline in purchasing power has occurred in the face of a steeply rising workload, with the average district judge disposing of 32 percent more cases in 1976 than in 1968, and the average court of appeals judge nearly double the number of cases in 1976 than 8 years before. Moreover, unlike the case with Members of Congress and certain persons on relatively low official salaries, the Administrative Office told the Commission “the capacity to earn income in augmentation of judicial salaries is virtually nonexistent.”
The result of this constriction on the incomes of federal judges, not experienced by many others in the society generally, has been a growing number of resignations and of declinations to serve on the bench for financial reasons. The Administrative Office reported what it considered an unprecedented number of resignations from the bench, eight of them from November 1973 to May 1976, to reenter private practice or engage in some other occupation, all at substantial increases in compensation. Plaintiffs have submitted some affidavits from sitting and resigned judges and one Member of Congress attesting to the gravity of the problem created by the 7-year pay freeze on judicial compensation. The Member, Charles H. Percy, senior United States Senator from Illinois, submitting his affidavit “having lost hope for legislative redress to the serious problem of low judicial salaries,” stated that the—
increasing difficulty of inducing successful attorneys in private practice to accept federal judgeships at the current salary level has become a definite problem in * * * [recommending judicial candidates to the President]. During the past seven years twelve individuals who were my first choice as candidates for federal District Court and Court of Appeals judgeships decided that while they were extremely desirous of serving on the federal bench, they could not accept such a position at the current salary level. In each case, the candidate felt compelled to refuse since the dramatic reduction in income would have resulted in jeopardizing the education of his children.
The affidavits of seven former federal judges, one of them the Honorable Griffin B. Bell, now Attorney General of the United States, show that in the case of each of them the lack of salary adjustment in the face of spiraling inflation contributed to resignation from the bench. Some expressed the view that Congress had abandoned the judiciary or was using judicial salaries as a political football. The affidavit of one sitting judge points out that he can continue serving as a federal judge only because his wife is employed. We note, also, that three trial judges of the United States Court of Claims have left the court, one by retirement and two for much higher salaries in private practice, all because of the prolonged salary freeze.
Defendant does not deny the basic facts of the federal judicial salary problem as just outlined. It admits the existence of inflation but declines to accept the CPI as the measure of inflation relevant to judges, stating that that index is compiled with regard to urban wage earners and clerical workers, and that a trial would be needed to establish a price measure reflecting the experience of federal judges as a group, should resolution of this litigation ultimately require a determination of the impact of inflation on the purchasing power of plaintiffs. However, defendant believes that such a determination is unnecessary, and proceeds with legal arguments that it considers dispositive of the inflation issue in this case. Accordingly, we now address those arguments, viewing the facts as pleaded and disclosed in the affidavits in a light most favorable to plaintiffs. In view of our disposition of this issue, we also accept arguendo the applicability of the CPI to plaintiffs for the purpose of measuring the effect of inflation on the real dollar value of their official compensation.
Plaintiffs assert that the Compensation Clause of article III, section 1 (hereinafter Compensation Clause or Clause), not only protects them from substantial diminution of the purchasing power of their salaries, but is “self-executing” in doing so, i.e., the Clause itself creates a claim against the Treasury whether Congress has acted or not. Cf. United States v. Causby, 328 U.S. 256 (1946) (just compensation clause of fifth amendment provides remedy for taking); Bivens v. Six Unknown Agents, 403 U.S. 388 (1971) (search and seizure clause of fourth amendment authorizes suit for damages). Defendant counters that this court lacks jurisdiction of a claim brought under the Clause precisely because it is not self-executing, and in any event because it cannot be the basis for a claim for money beyond that authorized by statute at some point during a sitting judge’s tenure. If defendant is correct, of course, discussion on count I of plaintiffs’ petitions must come to an end, since this court has jurisdiction of count I only if the Clause “can, in itself, fairly be interpreted as prescribing a payment by the United States in the circumstances present.” Gentry v. United States, 212 Ct. Cl. 1, 6, 546 F. 2d 343, 345 (1976). See Testan v. United States, 424 U.S. 392 (1976); Eastport S.S. Corp. v. United States, 178 Ct. Cl. 599, 372 F. 2d 1002 (1967). The parties agree that no statute or regulation authorizes the payment plaintiffs seek here, unless S. Res. 293 was invalid for reasons considered in the discussion of count II of the petitions, infra.
Interpretation of the Compensation Clause has concerned the Supreme Court on several occasions in the past. Evans v. Gore, supra, held that the Clause precluded Congress from levying an income tax pursuant to the 16th amendment on the official salaries of federal judges already in office. Miles v. Graham, supra, decided that the same was true — that an income tax diminished a judge’s compensation in violation of the Clause — for a judge appointed after the enactment of the revenue statute as well as for one already serving when the statute was approved. In the course of issuing these rulings, no longer good law as will be seen shortly, the Court reviewed the background and articulated the nature of the Compensation Clause, enunciating principles that continue to be valid and that will guide us in ascertaining the meaning of the Clause as it relates to our jurisdiction over the present controversy. In Evans, Justice Van Devanter began his majority opinion by noting that the constitutional separation of powers, as a means of securing “a larger measure of liberty and justice,” depended for its efficacy upon making the three branches of the Government “relatively independent” of one another. His opinion says that the Framers were greatly concerned with protecting against invasion of judicial independence by the President and Congress, the judiciary being thought to be by nature the weakest of the three great departments, having neither the power of the purse nor the community sword, “neither force nor will, but merely judgment.” 253 U.S. at 249, quoting from The Federalist No. 78, at 332 (C. Beard ed. 1959) (A. Hamilton). The 1787 Convention decided, the opinion continues, to build around the judiciary the twin protections of tenure in office and undiminishable compensation, in order to safeguard the courts against the actual or threatened encroachments of the political branches. “[I]s it not plain that * * * [the] purpose [of the Tenure and Compensation Clauses] was to invest the judges with an independence in keeping with the delicacy and importance of their task and with the imperative need for its impartial and fearless performance?” 253 U.S. at 252. The danger which the Framers foresaw, and the focus of the protections they gave to the judiciary, was legislative or executive assault on judicial independence. Justices Holmes and Brandeis, dissenting in Evans, did not disagree with this formulation but objected to the result because to “require a man to pay the taxes that all other men have to pay cannot possibly be made an instrument to attack his independence as a judge.” 253 U.S. at 265.
What is the character of the salary diminution that can be used to attack the independence of judges? Is it only an amendment of the salary statutes, reducing the number of nominal dollars that a judge is paid from the Treasury? The Evans Court responded that “diminution may be effected in more ways than one. Some may be direct and others indirect, or even evasive * * *.” The Court said it would ignore none of them, but would regard as prohibited by the Compensation Clause all manner of intrusions upon salary “which by their necessary operation and effect * * * take from the judge a part of that which has been promised by law for his services * * *.” 253 U.S. at 254. But exactly what is it that “has been promised by law for his services”? The majority in Miles, echoing many of the Court’s thoughts in Evans, defined the constitutional term “compensation” in these words:
The words and history of the clause indicate that the purpose was to impose upon Congress the duty definitely to declare what sum shall be received by each judge out of the public funds and the times for payment. When this duty has been complied with the amount specified becomes the compensation which is protected against diminution during his continuance in office. [268 U.S. at 508-09.]
This description takes a rather narrow view of the constitutional protection, declaring the Compensation Clause to guarantee to judges only the number of nominal dollars fixed by Congress. It must be remembered, however, that this definition was crafted for a case in which, like Evans, the question was not whether the Clause safeguarded real as opposed to nominal dollar amounts, but whether an alleged diminution effected in a manner other than outright reduction of authorized salary, cf. O’Donoghue v. United States, 289 U.S. 516 (1933), nonetheless violated the Clause. Important to our disposition of defendant’s jurisdictional challenge is that the Court held in Evans and again in Miles that an indirect, or even evasive, diminution of judicial salary was forbidden by the words of article III. The definition of compensation in Miles, focusing on a “sum” fixed as compensation by statute, was framed to illustrate the point that indirect lowering of the compensation “taken home” — a number of dollars given a judge as salary by statute, and then some of them taken back into the same Treasury by virtue of a tax — was a constitutionally prohibited activity.
In O’Malley v. Woodrough, supra, the Court overruled Miles, and by force of reasoning overruled a good deal of Evans, holding that a tax levied nondiscriminatorily upon the incomes of judges and other citizens alike in no way abridged the Compensation Clause, at least as regards judges who took office after it was levied. After noting that Evans had “met wide and steadily growing disfavor from legal scholarship and professional opinion” and had not been followed in most decisions of courts of the states and of other nations interpreting a requirement similar to the Clause, Justice Frankfurter stated for the Court:
- To suggest that * * * [a nondiscriminatory tax laid generally on income] makes inroads upon the independence of judges who took office after Congress had thus charged them with the common duties of citizenship, by making them bear their aliquot share of the cost of maintaining the Government, is to trivialize the great historic experience on which the framers based the safeguards of Article III, § 1. [Fn. omitted.] * * *.
- [T]o the extent that what the Court now says is inconsistent with what was said in Miles v. Graham, * * * the latter cannot survive. [307 U.S. at 282-83.]
O’Malley, then, had no disagreement with Evans and Miles insofar as they determined that indirect incursions upon judicial salaries, as much as direct ones, were not tolerable under the Compensation Clause. Justice Frankfurter certainly did not take issue with the emphasis of the earlier cases on the furthering of judicial independence as the Clause’s chief aim. In this he was in harmony not only with the dissenting Justices Holmes and Brandeis, but also with Justice Van Devanter. A tax or other alleged diminution does not contravene the Clause when it “makes [no] inroads upon the independence of judges * * *.” 307 U.S. at 282. What O’Malley did add to the body of learning on the Clause was that nondiscriminatory actions of Congress, those affecting the public generally, though indirectly bringing about the lowering of judges’ “take-home pay,” would nevertheless pass muster under the Clause. The key to the decisions in Evans and Miles, and to the overruling of those cases in O’Malley, was the Court’s view of the scope of protection needed to maintain an independent judiciary. This will guide our decision as well.
Indirect, nondiscriminatory diminishments of judicial compensation, those which do not amount to an assault upon the independence of the third branch or any of its members, fall outside the protection of the Compensation Clause, and the allegation of facts showing their existence does not state a claim for which relief can be granted in this court. Plaintiffs, however, contend not only that their salaries have, by inflation and by congressional neglect of their plight and by congressional action on behalf of others, been diminished in a discriminatory fashion and to an extent that compromises the autonomy of their department, but also that the “compensation” which the Clause promises them will not be lowered is a compensation in real dollars, not nominal ones. They assert that inflation and congressional unwillingness to adjust their salaries to mitigate the effects of it have caused a decline in that supposedly guaranteed real income level, thus giving them a right to recover in this action. In other words, plaintiffs would narrow the general rule stated at the outset of this paragraph, derived from the rulings of the Supreme Court, to add a ground for relief never before accepted by any tribunal, and to do so primarily on the strength of various statements made at the Constitutional Convention.
Plaintiffs focus in their argument on the debates and votes that occurred in the Convention on July 18 and August 27, 1787. On June 13, 1787, the Convention’s Committee of the Whole reported a series of resolutions that were discussed and amended throughout the following 6 weeks. Resolution 11, the first of three organizing and empowering the federal judiciary, provided inter alia that the national judges would “receive punctually, at stated times, a fixed compensation for their services, in which no encrease or diminution shall be made” during their terms in office. C. Rossiter, 1787: The Grand Convention 314 (1968) (hereinafter Rossiter). The judges’ compensation appears not to have been much debated prior to issuance of this report, for the Committee of the Whole adopted it verbatim from Resolve No. 9 of Edmund Randolph’s “Virginia Plan” submitted to the Convention on May 29. Rossiter 311. On July 18, as the Convention considered Resolution 11, New York delegate Gouverneur Morris moved to strike out the words “or encrease” on the grounds (as James Madison recorded his thought) that “the Legislature [Congress] ought to be at liberty to increase salaries as circumstances might require, and that this would not create any improper dependence in the Judges.” Benjamin Franklin agreed with Morris’ proposal noting that “[m]oney may not only become plentier, but the business of the [judicial] department may increase as the Country becomes more populous.” 2 M. Farrand, Records of the Federal Convention of 1787 44-45 (1966) (hereinafter 2 Farrand).
Delegate Madison, however, disagreed with the motion to strike, defending the prohibition on salary increase because, while “dependence will be less if the increase alone should be permitted, * * * it will be improper even so far to permit a dependence. Whenever an increase is wished by the Judges, or may be in agitation in the legislature, an undue complaisance in the former may be felt towards the latter.” 2 Farrand 45 (emphasis in text). But if a bar on salary increase is necessary to protect judicial independence, what adjustments would lie for variations in money value, living style, and workload? Here we come to the key phrase in plaintiffs’ case against purely inflationary diminution of salary. Madison told the Convention: “The variations in the value of money, may be guarded agst. by taking for a standard wheat or some other thing of permanent value.”
Plaintiffs understand this statement of Madison’s to be an explication of the term “compensation” as it existed in Resolution 11 and as it appears in article III today. They say that Madison fought for inclusion of the words “encrease or,” despite the objections of Morris and Franklin, exactly because empowering Congress to raise judicial pay was unnecessary—for the compensation guaranteed the judges was the real value of their salaries. Plaintiffs conclude that just as Madison thought using wheat as the measure of compensation would guard against real salary diminution, by adjusting automatically for changes in the nominal dollar cost of living, so must we read the Compensation Clause as instructing payment to plaintiffs of as many 1977 dollars as would equal in real value their 1969-dollar salaries.
Plaintiffs’ reliance on Madison’s statement overlooks several crucial facts. First of all, in response to Madison, Gouverneur Morris again addressed the Convention, commenting:
The value of money may not only alter but the State of Society may alter. In this event the same quantity of wheat, the same value would not be the same compensation. The Amount of salaries must always be regulated by the manners & the style of living in a Country. [2 Farrand 45.]
Morris thus called Madison’s idea unworkable. While he seemingly acknowledged that it had some appeal in dealing with inflation, he countered that the standard of living, not just the cost of living, may rise for the nation generally. Insofar as Madison’s “wheat” standard might address the one problem but would definitely not adjust for the other, Morris opposed pursuing the standard further as a means of salvaging the “encrease or” language. The second point plaintiffs miss is that the Convention agreed with Morris, not with Madison: it voted, six states agreeing, two states opposing, one absent, to strike the words banning increase of salaries for sitting judges. Thirdly, it is well-nigh inconceivable that Madison and the delegates would have left in so amorphous a formulation the nature of the real value standard by which judges’ compensation was to be measured, had they wholly embraced this concept and intended to make it a part of their plan of government.
If the Convention wished to ground the compensation it guaranteed the federal judiciary in an irreducible real measure, and not leave increases in salaries to the prudence of Congress, it had the opportunity to make this plain on August 27, 1787. Several weeks earlier, on August 6, the Committee of Detail reported a draft constitution to the Convention, article XI, section 2 of which provided that judges “shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office.” Rossiter 327. On August 27 delegates Madison and McHenry again moved to add language barring increases in judicial salaries. George Mason argued for the motion, contending that “[t]here was no weight * * * in the argument drawn from changes in the value of the metals, because this might be provided for by an increase of salaries so made as not to affect persons in office.” Morris rose to urge defeat of the motion for the reasons he gave on July 18, and Charles Cotesworth Pinckney opposed the motion with these remarks, as Madison recorded:
The importance of the Judiciary will require men of the first talents: large salaries will therefore be necessary, larger than the U.S. can allow in the first instance. He was not satisfied with the expedient mentioned by Col: Mason. He did not think it would have a good effect or a good appearance, for new Judges to come in with higher salaries than the old ones.
The Convention, one state in favor, five opposed, one divided, and four absent, voted down the Madison-McHenry amendment. 2 Farrand 429-30. Mason’s comment suggests that, rather than understanding the problem of inflation to have been resolved by a sub silentio equation of compensation with a real value standard, he recognized that the “value of the metals” would change and that the remedy for this was an increase in salary voted by Congress, not a constitutionally based, automatic nominal pay increase. He apparently thought it less of an evil to leave the sitting judges at a lower salary than to open all judges to “an undue complaisance” towards the legislature, to use Madison’s words. Mason, the great champion of individual rights which the independent courts would be relied upon to protect, was answered by General Pinckney. The latter expressly contemplated that less than adequate salaries would at first be paid by the Government, later to be adjusted as Congress deemed appropriate and necessary to attract the quality of judicial officeholder that it sought. This exchange, and the Convention’s vote, is hardly a ringing endorsement of plaintiffs’ “real compensation” theory.
Read in a light most favorable to plaintiffs, the words and actions of the Framers are at best inconclusive as to the meaning of “compensation” in the drafts which became article III. Plaintiffs contend that Madison’s ideas were defeated, “not because his opponents felt defeat was necessary to meet the inflation problem, but because they raised two other problems that Madison did not deal with adequately[:] * * * that of giving judges higher salaries as the country grew richer and that of giving them higher salaries as they grew busier.” Precisely what caused their defeat is of course speculative, for those delegates who spoke addressed a variety of issues but did not necessarily state all their reasons for support or opposition, while on the other hand very few of the delegates spoke on the subject. Still, plaintiffs are on weak ground indeed in contending that the Convention approved Madison’s argument for a “wheat” standard when its official action was disapproval of his no-increase language, that the Convention sanctioned that which it did not clearly reject, that the meaning of a constitutional phrase must derive from the remarks of one Framer (albeit a very significant one) who raised the notion exactly once and never further elaborated on it.
Aside from what transpired at the Convention, plaintiffs’ view that the guarantee of nondiminishable compensation is a promise that real salary value will always be maintained runs contrary to the Court’s reasoning in O’Malley v. Woodrough, supra. O’Malley rejected the contention that a diminution of purchasing power by virtue of income taxation violated the Compensation Clause, stating that an economic burden placed nondiscriminatorily upon the public generally afforded judges no cause to complain under the Constitution. Inflation generally experienced by the public is just such a nondiscriminatory burden. If plaintiffs are correct that nothing, not even general inflation, is tolerable under article III if it lowers a federal judge’s real purchasing power, then O’Malley is not good law. Of course, plaintiffs do not so contend.
It must be concluded, then, that the Constitution, in granting Congress the power and duty to fix judicial compensation and in not forbidding it to raise that compensation from time to time, left to the sound discretion of the political branches the adjustment of the judges’ salaries as economic and other circumstances—inflation, higher living standards, need for better judges, more difficult cases, and greater caseload—required. Defendant, as noted earlier, admits of no exceptions to this grant of discretion, taking the position that plaintiffs cannot state a claim over which this court has jurisdiction insofar as they seek a salary, the nominal dollar amount of which exceeds the statutory authorization. Congress has absolute power, according to defendant, to keep the nominal dollar amount of the judicial salary where it is. We think defendant’s contention goes too far. As has been said repeatedly above, the purpose of the Compensation Clause is to preclude a financially based attack on judicial independence. Justice Frankfurter, in his footnote 9 in O’Malley, 307 U.S. at 282, adverted to what his opinion called the “great historic experience” out of which arose article III’s protections of judicial independence, namely, the Crown’s attempt to subject the common law courts to its will in 17th century England. Perhaps most notable from that experience, though by no means the only such events, were the dismissals of Chief Justices Coke and Crew by the first two Stuart kings, respectively, when the former tried to limit the royal prerogative in their decisions and assert the autonomy of the courts and the supremacy of the common law. J.R. Tanner, English Constitutional Conflicts of the Seventeenth Century 1603-1689 40, 60 (1971). The reaction to these manipulations of the bench was embodied, after the Glorious Revolution, in the provisions of the Settlement Act of 1700, securing the judges’ independence by limiting the Crown’s ability to alter their compensation or to dismiss them. Blackstone said of this and a subsequent reform, 1 Blackstone, Commentaries *267-68:
- [I]n order to maintain both the dignity and independence of the judges in the superior courts, it is enacted by the statute [the Settlement Act, 12 &] 13 W.III.c.2 [§ III], that their commissions shall be made (not, as formerly durante bene plácito, but) quamdiu bene se gesserint [as long as they conduct themselves properly], and their salaries ascertained and established; but that it may be lawful to remove them on the address of both houses of parliament. And now, by the noble improvements of that law, in the statute of 1 Geo.III.c.23 [1760], * * * the judges are continued in their offices during their good behaviour, * * * and their full salaries are absolutely secured to them during the continuance of their commissions; * * *.
See D. Keir, Constitutional History of Modern Britain Since 1485 268-69 (9th ed. 1969).
The one point which is abundantly clear in the Madison-Morris exchange of July 18, 1787, is that both wished to fashion a prohibition against congressional tampering with judges’ salaries as a means of thwarting the autonomy of the third branch. Only 11 years earlier the Continental Congress had complained in the Declaration of Independence that King George III had “made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries,” as part of his attempt to extend a tyrannical rule over the colonies. Could not an “indirect, or even evasive” design by Congress to place judges at a severe financial disadvantage as against the remainder of the society, for the purpose of punishing judges as a class or of forcing a number of them to resign, constitute the very assault on independence which the Framers feared from historic experience? Could not Congress, for example, fix a minimum income tax on all federal employees, officials, and judges, at a practically confiscatory level at current salaries, and then dramatically raise the salaries of all but judges in order to vitiate the effect of the tax on the others? The remedy, if judicial independence were to survive, would as likely be the court-ordered increase of judges’ salary levels as the rescission of the tax and the other salary boosts.
Keeping in mind that “it is a constitution we are expounding,” “intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs,” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407, 415 (1819), and that the Clause itself is to be liberally applied because not a private grant of privilege but a limitation intended to benefit the public at large, Evans v. Gore, supra, 253 U.S. at 253-54, we hesitate to authorize the ready circumvention of the Clause’s prohibition by adopting defendant’s position in full. If discriminatory treatment is aimed at the judiciary by the political branches, to effect what is obviously an attack on the tenure or decisional freedom of the judges, it should not be assumed that article III does not mandate the fashioning of whatever relief is necessary to alleviate the situation. Consistent with the purpose of the Compensation Clause, as understood by the Framers and later by the Supreme Court, Congress should not be acknowledged to hold a financial “instrument [with which] to attack [one’s] independence as a judge.” Evans v. Gore, supra, 253 U.S. at 265 (Holmes, J., dissenting). In section C of this part we will examine plaintiffs’ allegations and evidence to determine if they show an injury for which we may grant damages under a theory of discriminatory assault.
Defendant further objects to plaintiffs’ salary “increase” claim on the ground that, setting aside what one may think of the substantive protection afforded by the Clause, the constitutional provision on which plaintiffs rely is “not self-executing.” By this is meant, defendant explains, that the Clause itself requires Congress to act in the first instance to set the judges’ nominal dollar salaries, before the Clause’s protection comes into play. If Congress does not alter the nominal dollar figures, reasons defendant, no help can be forthcoming from the Clause for plaintiffs’ benefit beyond that which they enjoy under the existing salary levels. We need not discuss this objection as it relates to plaintiffs’ “pure inflation” theory of recovery, which we have already decided fails to state a claim upon which relief may be granted. Insofar as the objection is leveled at a “discriminatory attack” theory, it is little more than a rehash of arguments just disposed of. To say that Congress must act first to fix nominal dollar salaries assumes that such nominal amounts, when set, become the “compensation” which the Clause harbors from decrease. Yet, the whole dispute between the parties over the discrimination claim revolves about attaching to the constitutional concept of compensation the idea that it is “nominal” value only. Likewise, defendant assumes the result for which it contends when it considers the diminution against which salaries are protected to be the lowering of nominal dollar amounts only. In stating that we will not dismiss out of hand a claim that the Clause shelters the judiciary from discriminatory attack based on salary, we have, for reasons given when so stating, implicitly rejected the view that real economic value plays no part in measuring what the Clause protects.
Defendant has cited to us no cases which pronounce the Compensation Clause “not self-executing.” To support its theory, defendant necessarily places much emphasis upon the Clause’s words themselves. But a mere exegesis of words is not to be preferred to an interpretation of the Clause in light of its widely acknowledged purpose. Absolute deference to Congress in the prescription of the number of nominal dollars judges are to receive would eviscerate the Clause as a safeguard against discriminatory attack on judicial independence. The Clause’s terms do not compel endorsement of defendant’s restrictive view that the provision is not self-executing, and indeed its broad and benign purpose, fundamental to the constitutional system of checks and balances, leads to the contrary conclusion. Defendant’s objection cannot stand to bar judicial relief pursuant to the Clause where a proper claim for relief is established.
Though we reject defendant’s contention, we admit that its focus on the Clause’s language for setting salary levels in the first instance has this much merit: it counsels rejection of plaintiffs’ claim that the court as a matter of law must allow them (and judges as a class) greater compensation in order to attract individuals of high professional caliber to the federal bench. It is true that Chancellor Kent considered one of the Clause’s purposes to be the assurance of quality personnel in the judicial service. 1 Kent, Commentaries *294, quoted in Evans v. Gore, supra, 253 U.S. at 253. Equally true is the fact that General Pinckney admonished the Convention on August 27, 1787, as noted above, that high salaries would be required to attract to judicial office persons of the professional stature that all would desire to see in that office. Whether the argument embodied in these statements is correct or not, we cannot overlook Pinckney’s concurrent comment that, however high the judges’ salaries should be fixed as an ideal, the Government might not at its inception be able to pay such salaries. Certainly, if less than adequate salaries could be set by Congress in the first place, the real value of which alone is protected from diminishment by the Clause, it is difficult to understand how one can find in the Clause a promise of compensation adequate to lead those high in professional standing to quit the practice of law in favor of judicial posts. In addition, deciding upon the level of salary “adequate” to attract “quality” personnel is somewhat problematic — it is first necessary to define “quality” and to determine what degree of it is to be sought after. The Constitution obviously gives no answer to this problem, nor does it instruct how much an otherwise adequate salary may properly be discounted to allow for the honor and public service “sacrifice” that historically have accompanied judicial office. We take notice of the fact, however, that the so-called “psychic income” some attribute to the prestige of a federal judgeship is not legal tender for the payment of bills judges incur just the same as do other citizens. Yet, these are matters for Congress to resolve, and no claim for relief here may be founded only on plaintiffs’ equation of salary adequacy and personnel quality.
Plaintiffs offer two other arguments in support of their theory that the Clause entitles them to a nominal dollar compensation increase, short of a claim of discriminatory attack. They say, first, that the Convention used the term “compensation” in order to convey the idea of a payment in real value, as distinguished from the terms “salary” and “emoluments,” which connote payments in nominal amounts. Plaintiffs instruct us that the Oxford English Dictionary, unabridged edition, defines compensation as “that which is given in recompense, an equivalent rendered,” and finds the origin of the word in the concept “to counterbalance.” “Salary,” on the other hand, had its origin “in money given to Roman soldiers to buy salt,” and means a “fixed payment made periodically to a person as compensation for regular work.” “Emoluments,” according to plaintiffs, means about the same as “salary.” That these definitions were scrupulously followed by the Framers in crafting their product is nowhere demonstrated in the Convention’s records. Plaintiffs suggest that the Compensation Clause, in the early stages of its evolution, employed the term “salaries,” which the Convention later changed to “compensation.” That is incorrect, however, for all drafts of the Clause, from the Virginia Plan in late May through the revisions of the Committee of Style presented to and adopted by the Convention in early September as its final document, use only the word “compensation.” If plaintiffs are referring to Madison’s paraphrase of the draft provision, 2 Farrand 44, which spoke of “salaries,” this only runs counter to their argument that the differing terms had exact and mutually exclusive meanings. Madison, for one, apparently attached no special meaning to one word over the other. He recorded Gouverneur Morris as using the terms interchangeably. 2 Farrand 44-45. Dictionary definitions obviously should not alone control constitutional interpretation. Nothing in plaintiffs’ purported distinction between compensation, on the one hand, and salary and emoluments, on the other, convinces us to depart in the slightest degree from the conclusions regarding the nature of the Clause’s protections that we have reached from other considerations previously discussed.
Plaintiffs’ other, and final, contention is that a failure to link judicial compensation with some inflation index, thus allowing the possibility of real value decline, subjects judges to a “feeling of dependence upon the legislature for the maintenance of their compensation.” The answer is that, while this may be true, no violation of the Constitution results. The Compensation Clause, though established in large part to guarantee the independence of the judicial department, permits and even contemplates a “feeling of dependence upon the legislature” to an extent. The Clause itself allows Congress to vary the nominal dollar value of judges’ salaries by way of increase. As noted before, Madison objected on the Convention floor that even this led to a form of dependence, too substantial to be condoned, and warned the delegates that an undue deference to the legislature would likely result when a pay increase bill was pending in that branch. Morris acknowledged that permitting salary increases meant some degree of “dependence,” but weighed the matter and concluded that an undue or “improper” dependence would not be created. The Convention voted with Morris, and against Madison, thus accepting the permissibility of less than a total judicial financial independence. In O’Malley v. Woodrough, supra, the Court sanctioned the taxation of judges’ income, according Congress the power to vary the real compensation of judges, so long as this is done in a nondiscriminatory manner. A “feeling of dependence upon the legislature” exists among judges with respect to the level of income taxation at least as much as with respect to the level of inflation — Congress directly sets the former, and only reacts to the latter — and yet O’Malley finds no constitutional fault with the situation. As inferable from the Convention debates and action, and as determined by analogy from O’Malley, the possibility that real value decline in compensation through inflation will create a “feeling of dependence” is not enough to warrant relief under the Compensation Clause, absent proof of a claim of discriminatory attack.
In sum, this court has no power to grant relief on plaintiffs’ complaint that inflation without substantial pay increases has diminished the real value of their official salaries, for the Constitution affords no protection from such an indirect, nondiscriminatory lowering of judicial compensation, not involving an assault upon the independence of judges. In section C of this part, infra, we will consider whether plaintiffs have made out a case showing the discriminatory diminishment of their salaries, in a manner that amounts to an attack on the judiciary by the political branches, warranting protection under the Compensation Clause and relief in this proceeding.
Defendant argues that we should deal no further with this issue, because plaintiffs’ claim under count I presents a political question and is therefore not justiciable. Defendant bases this contention on Baker v. Carr, 369 U.S. 186 (1962), which dealt with an action to compel the reapportionment of a state legislature, on the ground that the existing apportionment of representatives violated the equal protection clause of the 14th amendment. It was held such an action could be entertained by a federal court, and the objection that such an action was nonjusticiable was overruled. Of course defendant is less interested in the holding in Baker than in the reasoning of the Court, which it says supports its contention. The Court observed in Baker that each of the varying formulations which may be used to describe a nonjusticiable political question “has one or more elements which identify [the question] as essentially a function of the separation of powers.” The Court then listed the elements found in previous cases:
- Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. [369 U.S. at 217.]
Defendant claims to find a sufficient number of these elements present in this case, saying that a decision in plaintiffs’ favor on count I would (1) constitute a major incursion into the compensation-fixing responsibilities of the political branches, (2) involve the court in an area devoid of judicially discoverable and manageable standards for resolution, and (3) amount to the setting of judicial salaries by judges. Whether defendant’s contentions regarding nonjusticiability would succeed to block judicial resolution of the count I claim based on a “pure inflation” theory we need not and do not decide, for such a claim is not one upon which we can grant relief.
I agree with and join the majority of the court in holding that the plaintiffs are not entitled to judgment and the petitions must be dismissed. But I depart so widely in my reasons as to Count I that I think it better to set them forth separately. This I will do in summary form, since no one is joining me in this statement and nothing I say will be "the law.” I divide what follows into two parts, I Jurisdiction, and II Merits, Count I. As to Count II, I join in the court’s per curiam opinion.
There are two jurisdictional barriers the plaintiffs must surmount. The first is imposed by 28 U.S.C. § 455, as amended, (Supp. V, 1975), which prohibits our participation in cases wherein our impartiality might be questioned, with detailed treatment of different classes of disqualification. The second rises from the Testan doctrine (United States v. Testan, 424 U.S. 392 (1976)) which will have to be carefully considered hereafter in connection with any claim which is at all outside the usual bread and butter run of our cases.
A. As to 28 U.S.C. § 455. I will be frank to say that anyone might reasonably question my impartiality. However, the disqualification is not jurisdictional, may be waived, and has been waived by both parties, unless it falls under § 455(b). If it does, it cannot be waived. Section 455(b) bars a judge who has a "financial interest” in a party. If that were all there would be no problem because we have only an interest in the issues to be litigated, or some of them, as abstract propositions, not in the parties, and therefore our interest does not come under the definition of "financial interest” in section 455(d)(4). But the statute also bars us if we have "any other interest that could be materially affected by the outcome of the proceeding,” that is, are interested otherwise than in a pecuniary way. This language seems to me hopelessly ambiguous. We are not interested in the outcome of this case, only in the reasons given for that outcome. The reasons just might possibly support a back pay claim by ourselves. If this kind of interest is an interest in the outcome of a case, it trails off into all sorts of remote connections. Thus, a judge sitting on a dispute between a labor union and a manufacturing corporation might have section 455(b) issue interest if he held stock in any other company that employed union labor, members of any other union. I think, rather than leaving issue interest in such uncertainty, the Congress may well have intended that any such issue interest should be dealt with under section 455(a) and thus that the disqualification should be waivable. This may seem like hair splitting and probably is, but hair splitting often is unavoidable in any attempt to determine the boundaries of Court of Claims jurisdiction.
If section 455(b) is fatal to my jurisdiction, it is fatal to that of all other active and senior judges of this court and that of any other Federal judge who might sit here by designation. Thus, as plaintiffs have presently stated their claim, they would have no tribunal in which they could enforce it if valid, though it is largely founded on the Constitution. It is a common canon of interpretation to read a jurisdictional statute as not barring litigation of a claim of that kind unless the language affords "clear and convincing evidence” that Congress intended that result. Califano v. Sanders, 430 U.S. 99 (1977). To the same effect, in a case closer to us see Russian Volunteer Fleet v. United States, 282 U.S. 481, 491 (1931). Thus, for purposes of this case, section 455(b) does not bar jurisdiction, even if, which I do not admit, in some other context, it might do so, for a similar interest. I find it ambiguous in any context. Ordinarily, of course, the matter would be resolved under section 455(a) and the ambiguities of section 455(b) need not cause difficulty.
As I read my colleagues, they find an unambiguous bar in section 455 and find in a supposed "doctrine of necessity” the means of leaping over it. The differences from my approach are more than semantic.
The cold truth is that the plaintiffs are suing in the United States Court of Claims under the Tucker Act, 28 U.S.C. § 1491, as amended. They invoke only the powers of this court, such as they are. This court is not an ombudsman. It is a court of severely limited jurisdiction. It can take cases only against the United States, only if they seek money judgments, and only to the extent Congress has waived sovereign immunity. Where money damages are not claimed, Congress has recently enacted a most sweeping waiver of immunity, Act of October 21, 1976, Pub. L. 94-574, 90 Stat. 2721, but where money is claimed, existing waivers are limited and narrowly construed, leaving large categories of possible claims not provided for. The decision whether a claim is consented or unconsented is frequently a matter of legal hair splitting courts would be ashamed of in any other context. For example, by recent authoritative decision, United States v. Hopkins, 427 U.S. 123 (1976), a contract employee of an unappropriated fund agency can sue for back pay, if deprived of it by legal wrong, but one appointed and enrolled in the ordinary non-contractual way cannot. There is no reason for this distinction. It is simply a matter of defective statutory draftsmanship. Someday, probably, it will be corrected.
To me it seems absurd for a court having such limited jurisdiction to invoke a "doctrine of necessity,” saying we must override an unambiguous statutory bar because if we do not, the poor fellows have no remedy. If they have none, they only join a club that has many other members.
The "doctrine of necessity” to my mind exists only for courts of general jurisdiction and cannot be availed of to override unambiguous jurisdictional limits. If, however, section 455(b) is conceded to be ambiguous, the "doctrine of necessity” becomes only a minor aspect of the general rule stated in Califano and in other cases cited therein.
B. The Testan Doctrine. The next problem, as I see it, is also jurisdictional. It is a venerable maxim of our jurisprudence that no one can sue for the salary of a position, except a salary actually fixed by law as the salary of a position he actually holds, or held until unlawfully removed. The reasons given for this rule are various. In United States v. Testan, supra, it is imputed to the absence of any expression of intent by Congress that the United States shall be liable to pay the money when that is not expressed in legislation, outside the Tucker Act, such as the Back Pay Act, 5 U.S.C. § 5596(b). This must exist as a jurisdictional prerequisite to suit in the Court of Claims, entirely apart from whether legal rights have been breached, or wrongs committed, that might be remedied in some other way. The problem commonly arises, as in Testan, in promotion controversies. A claimant to the emoluments of a promotion almost always fails in this court on jurisdictional grounds.
In United States v. Lovett, 328 U.S. 303 (1946), it would not have been enough for jurisdiction here if Congress had passed a bill of attainder against Mr. Lovett to bar his appointment or promotion to a position he did not hold. That it sought to deny him a position he already had, or rather the pay of it, would have met the Testan test, had it then been articulated.
Though not mentioned in Testan, the power of the purse is older than the judicial independence and like it is a safeguard of freedom. Parliaments exercised power of the purse to clip the talons of the Stuart kings when judges were officers of the Royal household, toadies who could be appointed or removed at the Royal pleasure. The ever infamous Judge Jeffries was one of them. To sue the Government for back pay and obtain a judgment involves an infringement on this ancient power unless expressly consented to; hence the Testan decision and others before it, where the Attorney General complained on behalf of the Crown (President and Congress) that we had taken a jurisdiction not properly ours. Differences of opinion are possible as to the scope of consent, but none as to the legal impossibility of exceeding that scope once it is determined. And it is wholly an independent question from whether the Congress has violated anybody’s constitutional rights. Lynch v. United States, 292 U.S. 571 (1934).
Applying a Testan analysis to the claims before us, the plaintiffs’ most plausible theory, under Count I, is that Congress has under Article III a duty to adjust the pay of judges from time to time, to compensate for decline in the buying power of the dollar. This would appear to be very similar to the duty of the Civil Service Commission, involved in Testan, to equalize the job classifications of Government employees. Our theory was that on the Commission’s performing this duty, plaintiffs would then have a money claim to satisfy jurisdictional requirements. According to the Supreme Court, reversing, a back pay claim here cannot be postulated on the supposition that another body will perform its duty, if Congress has not indicated its intent to found a pecuniary liability on such a supposition. Similarly plaintiffs here do not have a money claim on the mere assertion that Congress should have adjusted their salaries, when Congress has never indicated that any employees, judicial or other, should have a money claim above and beyond the salary fixed by statute. This is a matter wholly independent of whether the legal duty sought to be enforced originates in the Constitution. We cannot bootstrap ourselves into jurisdiction by the equitable doctrine of viewing that as done which ought to have been done.
Plaintiffs, however, also say that their Article III right is "self-executing.” This is a very important contention, because the court has apparently adopted it, and if correct it gets us around the Testan barrier and opens up the merits for our consideration. In my view, however, the Article III salary right is to an exercise of sound discretion by the Congress, taking into account the decline in the buying power of the dollar. I do not at all agree Congress is bound, in adjusting salaries, to conform to the changes in the Consumer Price Index. Other options are open. I discuss the nature of the right, as I see it, more fully below. If such a right can be described as self-executing, that of the Testan plaintiffs was self-executing too, and the barrier the Supreme Court held to be fatal to our jurisdiction was imaginary. I may say I find an inherent contradiction in the majority designation of the right as self-executing, and the other incidents of the right as attributed to it by the court.
As regards Count II of the petitions, I do not think the Testan analysis is fatal to jurisdiction, for the reasons stated in Gentry v. United States, 212 Ct. Cl. 1, 546 F.2d 343 (1976). The claim in Count II is founded on a statute, as amended, by deletion of an allegedly unconstitutional proviso. The claim did not require action by anyone other than this court. Hence I agree that the court may properly go into the merits under Count II.
The court, having determined that Article III gives a self-executing right, goes on to discuss what the duties of Congress were and are in the premises, and concludes that the neglect of Congress to make cost of living adjustments in judges’ pay, if reprehensible, does not rise to the dignity of a constitutional violation. I seem to read between the lines a reluctance to hold that there can be such a thing as a constitutional violation not remediable in any court. The popular view of such matters no doubt is that if you can’t sue on it, the Constitution doesn’t cover it, much as serious thinkers used in the twenties to say that it was impossible for the Prince of Wales (later King Edward VIII) to be unfashionably dressed. As people see it, a constitutional right is nothing if it is not a successful lawsuit. My view, however, is that constitutional rights can and do exist, and can be breached, even though no court is open for their enforcement. This certainly has occurred historically. E.g., in United States v. Sioux Nation, 207 Ct. Cl. 234, 518 F.2d 1298, cert. denied, 423 U.S. 1016 (1975), we recognized at least that this court formerly had taken such a view. The Congress has the duty to rectify constitutional breaches not remediable in the courts, or widen court jurisdiction to cover the cases, but cannot be ordered to do either. My colleagues view the possibility of, e.g., a discriminatory failure to adjust for inflation, as to judges only, or a Weimar Republic type of inflation of the money to zero value, as horrors they do not wish to approve as constitutional in advance, and therefore they assert their jurisdiction, get into the merits, and exonerate the Congress of any constitutional violation up to now.
Since in my view we do not have jurisdiction, the added heinousness of any constitutional violation in the premises would not confer it. It is therefore inappropriate for me to hold whether or not there have been violations of Article III rights up to now. However, I think it is at least arguable that Article III confers a right not just to exercise of sound discretion and to nondiscrimination, but also to effective ways and means to implement regular adjustments, for cost of living, in face of the inflation which we have experienced continuously over the entire lifetime of the majority of persons now living, and must expect to continue, checked more or less, perhaps, but never stopped, until all of us are dead. Such a right, if it exists, is frustrated by the unfortunate statutory arrangements (Federal Salary Act, 2 U.S.C. § 351 & ff.) which link such adjustments to those proposed for others than judges, and expose them to defeat because of differences about entirely unrelated issues. Also, ordinary legislation, if defeated, can be redrafted to meet the objections of those who cast adverse votes, but under the Act under consideration, there is no provision for this, and an adverse vote halts action for an indefinite period, in 1974 as long as 3 years. I could not, therefore, jurisdiction questions aside, have joined in holding Article III is unviolated up to now. It does not follow, the Article not being self-executing, that ascertaining the damages would have been easy, and it could be they would have been nominal, particularly with respect to plaintiffs whose pay when they first entered the Federal judiciary did not materially exceed in real buying power the pay actually received during the period sued upon. A further caveat is this: the Federal Salary Act, being in my view an inadequate performance of a duty imposed on Congress by Article III, but some performance as far as it goes, it does not follow that the Act should be struck down, in whole or in part. Such a deletion from the statute book would make it even more out of harmony with the constitution than it is now. A deletion, on constitutional grounds, such as in Gentry, supra, makes the remainder of the statute constitutional and thus is a kind of judicial amendment that thrusts in an entirely different direction.
The majority’s holding that it has jurisdiction and its review of the statute and performance thereunder I think warrant me in going as far as I have done in my comment on Count I of the petitions.
In addition to what I have agreed with in Judge Skelton’s dissent (joined by Judge Kunzig), I believe that I should add the following additional reasons why I dissent from the majority opinion.
Section 356 reads as follows:
§ 356.
Functions of Commission
The Commission shall conduct, in each of the respective fiscal years referred to in section 352(2) and (3) of this title, a review of the rates of pay of—
(A) Senators, Members of the House of Representatives, and the Resident Commissioner from Puerto Rico;
(B) offices and positions in the legislative branch referred to in sections 136a and 136a-l of this title, sections 42a and 51a of Title 31, sections 162a and 162b of Title 40, and section 39a of Title 44;
(C) justices, judges, and other personnel in the judicial branch referred to in sections 402(d) and 403 of the Federal Judicial Salary Act of 1964;
(D) offices and positions under the Executive Schedule in subchapter II of chapter 53 of Title 5; and
(E) the Governors of the Board of Governors of the United States Postal Service appointed under section 202 of Title 39.
Such review by the Commission shall be made for the purpose of determining and providing—
(i) the appropriate pay levels and relationships between and among the respective offices and positions covered by such review, and
(ii) the appropriate pay relationships between such offices and positions and the offices and positions subject to the provisions of chapter 51 and subchapter III of chapter 53 of Title 5, relating to classification and General Schedule pay rates.
Section 358 requires the President to recommend salaries “within the purview of subparagraphs (A), (B), (C) and (D) of section 356 * * *” Section 359(1)(B) allows a disapproval of “all or part” of the A, B, C and D salaries recommended by the President. I have tabulated the following possible partial disapprovals only with relation to raises for C (judicial salaries):
Senate Disapproval (by affirmative vote)
(1) Disapprove raise A (partial)
(2) Disapprove raise B (partial)
(3) Disapprove raise D (partial)
(4) Disapprove raise AB (partial)
(5) Disapprove raise AD (partial)
(6) Disapprove raise BD (partial)
(7) Disapprove raise ABD (partial)
Although there are seven possible partial disapproval combinations under the above tabulation for instances where C’s raises are approved, the total number of possible partial disapproval combinations is 14. This must be multiplied by 2 if I apply the same analysis to possible combinations of House disapprovals. So there are 28 possible combinations of partial disapprovals. On the other hand, there are only 2 possible total disapprovals.
Clearly, a single-house partial disapproval in any combination under the above tabulation is a change of the law. For example, in the above tabulation, in seven instances judicial salaries are raised singly or with A, B or D. So there are 28 possible changes of law without bicameral action and without approval of the President. The majority in its opinion emphasizes “no change in law” and it may be said that “no change in law” is the only basis of the majority’s opinion. In each of the 28 instances above mentioned, there is definitely a change in the law. So with the single-house veto unconstitutional in 28 out of 30 possible applications under the 1967 Act, it is difficult to comprehend why the single-house veto should be valid in 2 out of the 30 applications the majority claims it is constitutional. I submit that since the provision is unconstitutional in 28 out of 30 instances (93 percent), the entire provision is unconstitutional in toto in that it has been held that where a portion of a statute is unconstitutional in the vast majority of its intended applications, and it can fairly be said that it was not intended to stand as valid on the basis of fortuitous circumstances only in a fraction of the cases it was originally designed to cover, the statute cannot be permitted to stand. Butts v. Merchants & Miners Transportation Co., 230 U.S. 126 (1913); Dorchy v. Kansas, 264 U.S. 286 (1924).
Furthermore, as a practical matter, under subparagraphs (i) and (ii) of section 356 above recited (hereafter called the relationship clauses), each part recommended bears a relationship to the other as well as the salaries under the mentioned general classification system. Since the single-house veto clause is obviously unconstitutional when there is a partial veto, no single house will use the single-house veto clause for a partial veto but will disapprove the proposals A, B, C and D in their entirety even if it agrees that certain raises are proper and deserving. For example, even if raises for C, B and D are proper and deserving, because a single house wishes not to raise the salaries of its own members a single house will be compelled to veto the raise for A (congressional) and include therewith C, B and D when it does not truly intend to object to raises intended for C, B and D. Thereby C (judiciary), B and D will not receive their respective raises. The validity of a statute, whatever its language, must be determined by its effect or operation. Ludwig v. Western Union Telegraph Co., 216 U.S. 146, 162 (1910); Henderson v. Mayor, 92 U.S. 259, 268 (1875); Wisconsin v. J. C. Penney Co., 311 U.S. 435, 443 (1940); Mountain Timber Co. v. Washington, 243 U.S. 219, 237 (1917). The practical effect of the unconstitutionality in the case of the 28 instances above mentioned is to defeat the purpose of the relationship clauses and to create a situation where deserving persons such as the plaintiffs in the present case will not be given raises which they deserve because a partial veto cannot be made even though the statute as Congress intended allows it. Because of the obvious unconstitutionality in the 28 out of 30 instances and its adverse practical effect and operation as above illustrated, it is my opinion that the single-house veto clause is unconstitutional in toto.
The majority attempts to differentiate this case by defending its position and the single-house veto clause, citing a single case Muskrat v. United States, 219 U.S. 346 (1911). I cannot see the relevancy of that case herein because the Court held that the plaintiffs in that case did not have the requisite of “case and controversy.” Plaintiffs in that case brought suit in this court under a special statute conferring jurisdiction on this court regarding the right of certain Cherokee citizens as representatives of the tribe to institute suit in the Court of Claims to determine the validity of Acts of Congress with relation to alienation and other restrictions on lands and funds of the Cherokees. The Court deemed the suit to be equivalent to a bare declaratory judgment suit in that the suit did not assert a property right as against the Government or demand compensation for alleged wrongs because of action upon its part. Muskrat is clearly inapposite. The present case involves claims for back pay in dollars and cents. It is not a declaratory judgment suit.
The question of standing to raise constitutional questions was reviewed in United States v. Raines, 362 U.S. 17 (1960). The Court said that recognized exceptions to the general rule were:
(1) Where “* * * rules’ rationale may disappear where the statute in question has already been declared unconstitutional in the vast majority of its intended applications, and it can fairly be said that it was not intended to stand as valid, on the basis of fortuitous circumstances, only in a fraction of the cases it was originally designed to cover. See Butts v. Merchants & Miners Transportation Co., 230 U.S. 126. * * *” [At p. 23.]
(2) Where “* * * this Court can justifiably think itself able confidently to discern that Congress would not have desired its legislation to stand at all unless it could validly stand in its every application. * * *” [At p. 23.]
(3) Where “* * * as a result of the very litigation in question, the constitutional rights of one not a party would be impaired, and where he has no effective way to preserve them himself, the Court may consider those rights as before it. N.A.A.C.P. v. Alabama, 357 U.S. 449, 459-460; 460; Barrows v. Jackson, supra. * * *” [At p. 22.]
The Court recognizes Butts as an exception. It also recognizes the rule in Ludwig v. Western Union Telegraph Co., supra. The rule in Barrows v. Jackson, 346 U.S. 249 (1953), is also confirmed.
The majority opinion, however, summarily dismisses these recognized exceptions, citing a 1911 case, Muskrat. As I have stated, Muskrat is inapposite.
As the Court stated in Barrows v. Jackson, supra at 257:
- Under the peculiar circumstances of this case, we believe the reasons which underlie our rule denying standing to raise another’s rights, which is only a rule of practice, are outweighed by the need to protect the fundamental rights which would be denied by permitting the damages action to be maintained. * * * [Emphasis supplied.]
There are questions of fundamental rights involved in this case. The rights of plaintiffs and the multitude of Government employees not parties to this case under the basic constitutional provisions involved in the present case present a question equal to Barrows and N.A.A.C.P. in fundamental rights and national importance.
The holding that the rule of standing is only a rule of practice as the Court held in Barrows makes the majority’s imposition of the standing rule untenable in this case. By admitting the unconstitutionality of the single-house veto, defendant has completely waived any objection it may have had on the basis of standing. Defendant may waive rights in this court as private parties may. In view of defendant’s waiver of a “rule of practice” only, the majority cannot still insist on a nonwaiver. This court cannot prevent parties from taking positions under a “rule of practice.” Plaintiffs are entitled to every waiver defendant makes and the court may not arbitrarily deprive plaintiffs of the benefits of such waiver.
I submit the above reasons as additional reasons in support of plaintiffs’ position as well as defendant’s position that the single-house veto is unconstitutional. Defendant took its position knowing that the Court in Raines, as above listed, approved the rule in Butts. Defendant cannot complain. But the majority without even discussing Raines or Butts in effect repudiates both cases and disagrees with the defendant’s concession.
The two cases, Young v. United States, 315 U.S. 257 (1942), and Sibron v. New York, 392 U.S. 40 (1968), the majority cites to evade the admission of unconstitutionality, which the Assistant Attorney General has made in this case, are cases where criminal convictions were involved. The Court stated:
Therefore, there is a good and valid reason why these stipulations are not binding in criminal cases but such reasons are not applicable to civil cases especially where each claim involves only about $10,500 plus interest, more or less.
We deal next with the confession of error by the District Attorney for Kings County in No. 63. Confessions of error are, of course, entitled to and given great weight, but they do not “relieve this Court of the performance of the judicial function.” Young v. United States, 315 U.S. 257, 258 (1942). It is the uniform practice of this Court to conduct its own examination of the record in all cases where the Federal Government or a State confesses that a conviction has been erroneously obtained. For one thing, as we noted in Young, “our judgments are precedents, and the proper administration of the criminal law cannot be left merely to the stipulation of parties.” 315 U.S., at 259. See also Marino v. Ragen, 332 U.S. 561 (1947). * * * [392 U.S. at 58.]
The instances which plaintiffs cite in a footnote to their brief in which the Government has changed its views regarding the one-house veto are of no relevance in this case because the admission in this case was made as a matter of record. It was made in open argument before an en banc hearing of this court.
There are instances after instances in this court where the Government has agreed that certain cases are applicable or are not applicable to its position. Defendant’s open admission in this case must be interpreted to mean that Raines and Butts are controlling in this case. There is no other conclusion I can reach.
Therefore, under Raines and the three exceptions thereunder, plaintiffs have standing to raise the unconstitutionality of not only the two cases of veto of the entire recommended list but also the 28 instances of partial veto. The loaf (§ 359(1)(B)) in this case is made up of 28 bad slices and of 2 slices which the majority claims are good slices. But the two are so related to the 28 under the relationship clauses (Butts, Barrows and Ludwig) that I am of the opinion that the whole loaf of 30 slices is bad.