Boehner v. Anderson

• Decision Date: 29 July 1994
• Docket Number: No. 93-5009,93-5009
• Parties: , 63 USLW 2110 John BOEHNER, Appellant, v. Donnald K. ANDERSON, Clerk of the House; Martha S. Pope, Secretary of the Senate; William J. Clinton, President of the United States, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 156

30 F.3d 156

308 U.S.App.D.C. 94, 63 USLW 2110

John BOEHNER, Appellant, v. Donnald K. ANDERSON, Clerk of the House; Martha S. Pope,

Secretary of the Senate; William J. Clinton,

President of the United States, Appellees.

No. 93-5009.

United States Court of Appeals, District of Columbia Circuit.

Argued May 9, 1994.

Decided July 29, 1994.

Appeal from the United States District Court for the District of Columbia (92cv02427).

John Armor, Washington, DC, for appellant. With him on the briefs was Jerry William Boykin, Alexandria, VA.

Morgan J. Frankel, Asst. Senate Legal Counsel, Washington, DC, for appellees. With him on the brief for appellees President of the U.S. and Secretary of the Senate were Michael Davidson, Senate Legal Counsel, Ken U. Benjamin, Jr., Deputy Senate Legal Counsel, Claire M. Sylvia, Asst. Senate Legal Counsel, Eric H. Holder, Jr., U.S. Atty., and Douglas N. Letter, Atty., U.S. Dept. of Justice, Washington, DC. Stuart M. Gerson, Atty., U.S. Dept. of Justice, Washington, DC, entered an appearance.

On the brief for appellee Clerk of the House were Charles Tiefer, Acting General Counsel, Michael L. Murray, Sr. Asst. Counsel, Richard P. Stanton, Asst. Counsel, Washington, DC. Steven R. Ross, Washington, DC, entered an appearance.

On the brief for amicus curiae Common Cause were Ronald J. Greene, Roger M. Witten, and Laura B. Ahearn, Washington, DC.

Before EDWARDS, GINSBURG, and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

John Boehner and 27 other Members of Congress, 108 defeated congressional candidates, and 14 other individuals and organizations filed this suit against the Secretary of the Senate, the Clerk of the House of Representatives, and the President of the United States. The plaintiffs sought declaratory and injunctive relief on the ground that the provisions of the Ethics Reform Act that set up a mechanism for an annual cost of living adjustment (COLA) for Members of Congress and that establish the quadrennial pay raise system violate the newly ratified Twenty-seventh Amendment to the Constitution of the United States. The district court granted summary judgment to the defendants; 809 F.Supp. 138; the plaintiffs filed a notice of appeal but only Mr. Boehner's appeal was perfected. See Torres v. Oakland Scavenger Co., 487 U.S. 312, 318, 108 S.Ct. 2405, 2409, 101 L.Ed.2d 285 (1988) (Rule 3(c) of the Federal Rules of Appellate Procedure requires notice of specific individuals seeking to appeal); Adkins v. Safeway Stores, Inc., 968 F.2d 1317, 1318-19 (D.C.Cir.1992) (appeal perfected only as to person whose name appears preceding "et al.").

On appeal Mr. Boehner renews his challenge to the Ethics Reform Act and adds an alternative challenge to the constitutionality of the law cancelling the congressional COLA scheduled for 1994. For the reasons stated below, we hold that the COLA provision of the Act does not violate the twenty-seventh amendment; that Mr. Boehner may not challenge the law eliminating the 1994 COLA for the first time on appeal; and that his challenge to the quadrennial pay mechanism is not ripe.

I. BACKGROUND

The Ethics Reform Act of 1989 substantially revised the pay system for high-ranking government officials. Most relevant for the purpose of this appeal, the Act provided that each Representative would receive an immediate one-time salary increase and in subsequent years an annual COLA to his or her salary and pension. See Pub.L. No. 101-194, 103 Stat. 1716 (1989) (codified at 2 U.S.C. Sec. 31(2) and 5 U.S.C. Sec. 5318 note). Two years later the Congress enacted similar provisions for Senators. See Legislative Branch Appropriations Act, Pub.L. No. 102-90, Sec. 6(a), 105 Stat. 447 (1991) (codified at 5 U.S.C. Sec. 5318 note) (amending Ethics Reform Act of 1989 to remove exception for Senators).

The congressional COLA in any given year is one-half percent less than the annual percentage increase (if any) in the employment cost index (ECI) for the period ending December 31 of the previous year. Ethics Reform Act, Sec. 704(a)(1)(B); 5 U.S.C. Sec. 5318 note. (The ECI measures the change in wages and salaries paid to private sector employees. See BLS HANDBOOK OF METHODS 56 (1992).) The congressional COLA, however, is limited to a maximum of five percent per year, regardless of the change in the ECI. By automatic operation of the COLA provision, congressional salaries have been increased on the first day of January 1991, 1992, and 1993. In March 1993 the Congress voted to cancel the COLA scheduled to take effect on January 1, 1994. Pub.L. No. 103-6, Sec. 7, 107 Stat. 35 (1993) (codified at 2 U.S.C. Sec. 31 note).

The Ethics Reform Act also modified the quadrennial pay raise system first established by the 1967 Salary Act. A commission appointed every fourth year proposes to the President, for recommendation to the Congress, salary levels for certain Government officials, including Members of Congress. See 2 U.S.C. Secs. 351-364. Prior to 1989 the President's recommendation was effective unless disapproved by the Congress. As modified by the Ethics Reform Act, such quadrennial pay adjustments will not take effect unless enacted into law by the Congress, and then not until after a congressional election has been held. 2 U.S.C. Sec. 359(2)(A) & (4)(A). The Congress cancelled the first quadrennial commission scheduled to operate under the modified scheme, see Treasury, Postal Service, and General Government Appropriations Act, 1994, Pub.L. No. 103-123, 107 Stat. 1226 (1993) (rescinding the commission's appropriation), so that in fact no quadrennial adjustment has yet been proposed, let alone implemented, under the new system.

Meanwhile, in May 1992 the twenty-seventh amendment to the Constitution was ratified by the concurrence of a thirty-eighth State. Known as the "Madison amendment," it was proposed to the Congress in 1789 by James Madison--along with eleven other amendments of which ten became the Bill of Rights--and provides in its entirety:

No law, varying the compensation for services of the Senators and Representatives, shall take effect until an election of Representatives shall have intervened.

Six of the original thirteen States ratified the Madison amendment at the same time as the Bill of Rights; of the thirty-two other States that eventually ratified it, all but one did so after 1978, apparently in response to legislation affecting congressional compensation, including the 1977 salary increase, the elimination of recorded votes approving recommended COLAs, and the Ethics Reform Act. (Ohio, which ratified the amendment in 1873, did so in response to the "Salary Grab" Act of that year.) See generally Richard R. Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment, 61 FORDHAM L. REVIEW 518 (1992). According to Madison, and to all the ratifying states that stated their understanding, the purpose of the amendment is to ensure that a congressional pay increase "cannot be for the particular benefit of those who are concerned with determining the value of the service." James Madison, Speech in the House of Representatives (June 8, 1789), in The Congressional Register, June 8, 1789, reprinted in CREATING THE BILL OF RIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST FEDERAL CONGRESS 84 (Helen E. Veit et al., eds., 1991). See also 138 Cong.Rec. S6836 (May 19, 1992) (documents supplementing remarks of Senator Byrd) (text of state resolutions concerning Madison amendment).

Shortly after the Madison amendment became part of the Constitution, Mr. Boehner et al. brought this action to challenge the constitutionality of the Ethics Reform Act. They claimed that the automatic operation of the COLA provision violates the amendment because it increases congressional pay without the necessity of an annual legislative act by the Congress and without an intervening election; and that the January 1 effective dates of both the COLA and any quadrennial pay adjustment violate the amendment because the Members who vote for them may benefit from them--i.e., because they are on the payroll until the new Congress is seated, which is some time later in January. The district court upheld the statute in all respects. On appeal Mr. Boehner presses all his original claims and additionally argues in the alternative that if the COLA provision of the Ethics Reform Act is constitutional, then the elimination in March 1993 of the COLA scheduled to take effect on January 1, 1994 violates the intervening election requirement of the twenty-seventh amendment.

II. ANALYSIS

This appears to be the first case in which a court has been called upon to interpret the twenty-seventh amendment and its effect upon the pre-existing system for adjusting congressional pay. Before we can reach the merits of the case, however, we must attend to the argument of the President and the Secretary of the Senate that Mr. Boehner does not have standing to challenge the COLA and the quadrennial commission provisions of the Ethics Reform Act.

A. Standing

A Member of Congress is, of course, like any plaintiff, subject to the standing requirements of Article III. See, e.g., Reuss v. Balles, 584 F.2d 461, 466 (D.C.Cir.1978) ("a legislator receives no special consideration in the standing inquiry"). Therefore, Congressman Boehner must show that he has suffered a distinct and palpable injury; that the injury is fairly traceable to the act of which he complains; and that the court may give a remedy that is likely to redress the injury. Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982).

The President and the Secretary argue that Mr. Boehner lacks standing because his claim that the COLA and quadrennial pay adjustment provisions are unconstitutional, on the ground that they take effect before a new Congress convenes, states ...