Atkins v. United States

Citation556 F.2d 1028
Decision Date18 May 1977
Docket NumberNo. 41-76,132-76 and 357-76.,41-76
PartiesC. Clyde ATKINS et al., v. The UNITED STATES. Louis C. BECHTLE et al., v. The UNITED STATES. Ruggero J. ALDISERT et al., v. The UNITED STATES.
CourtCourt of Federal Claims

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Arthur J. Goldberg, Washington, D.C., atty. of records, for plaintiffs. Stephen G. Breyer, Cambridge, Mass., and Kevin M. Forde, Chicago, Ill., of counsel.

Asst. Atty. Gen. Rex E. Lee, Washington, D.C., for defendant. James F. Merow and Richard J. Webber, Washington, D.C., of counsel.

Cornelius B. Kennedy, Washington, D.C., filed a brief for Nelson A. Rockefeller, President of the United States Senate, as amicus curiae. Kennedy, Webster & Gardner, Washington, D.C., of counsel.

Eugene Gressman, Washington, D.C., filed a brief for Frank Thompson, Jr., Chairman, Committee on House Administration, United States House of Representatives, as amicus curiae. Arthur S. Miller, Washington, D.C., of counsel.

Francis M. Wheat, Los Angeles, Cal., filed a brief for Los Angeles County Bar Association as amicus curiae. John J. Quinn, Jr., Samuel L. Williams, John D. Taylor, David Ellwanger, and Brigitta B. Troy, Los Angeles, Cal., of counsel.

Before COWEN, Senior Judge, DAVIS, Judge, SKELTON, Senior Judge, and NICHOLS, KASHIWA, KUNZIG and BENNETT, Judges, en banc.

OPINION

PER CURIAM:

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 III, 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:

(2) 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.1

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.

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.2 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.

I The Application of the Judicial Disqualification Act to these Suits

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(1)(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(1)(c), as adopted by the Conference, provides:

(1) A judge shall disqualify himself in a proceeding in which
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