Humphrey v. Baker
| Decision Date | 31 May 1988 |
| Docket Number | No. 87-5310,87-5310 |
| Citation | 848 F.2d 211,270 U.S.App. D.C. 154 |
| Parties | , 56 USLW 2717 Gordon J. HUMPHREY, Senator, et al., Appellants v. James A. BAKER, Secretary of the Treasury, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
William C. Lane, with whom William A. Strauss and Alan B. Morrison, Washington, D.C., were on the brief, for appellants.
Janina Jaruzelski, Asst. Counsel to the Clerk, U.S. House of Representatives, with whom Steven R. Ross, Gen. Counsel to the Clerk and Charles Tiefer, Deputy Gen Counsel to the Clerk, U.S. House of Representatives, Washington, D.C., were on the brief, for appellee the Honorable Jack Russ, Sergeant at Arms.
Morgan J. Frankel, Asst. Senate Legal Counsel, with whom Michael Davidson, Senate Legal Counsel, Ken V. Benjamin, Jr., Deputy Senate Legal Counsel, Susan B. Fine, Asst. Senate Legal Counsel, Washington, D.C., Kevin M. Forde, Chicago, Ill., and Richard J. Pendergast were on the joint brief, for appellees Secretary of the Senate and Intervenor Judges.
John R. Bolton, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty. and Douglas Letter, Atty., Dept. of Justice, Washington, D.C., were on the brief for appellee, Secretary of the Treasury. Robert E. Kopp, Atty., Dept. of Justice, Washington, D.C., also entered an appearance for appellee, Secretary of the Treasury.
Before WALD, Chief Judge, and EDWARDS and STARR, Circuit Judges.
Senator Gordon Humphrey and five Members of the House of Representatives appeal from the District Court's dismissal of their attack on the constitutionality of the Federal Salary Act of 1967, as amended. 1 665 F.Supp. 230. The case raises once again questions concerning the doctrine of equitable discretion, a principle that guides the courts of this circuit in determining whether suits brought by Members of Congress can appropriately be entertained.
This litigation represents a challenge to the manner in which salaries for Members of Congress are established. 2 The mechanism for determining those salaries derives from the Federal Salary Act of 1967, Pub. L. 90-206, Sec. 225, 81 Stat. 613, 642 (1967), codified at 2 U.S.C. Secs. 351-361 (1982) (as amended). The 1967 statute represented a significant departure from the historical practice of establishing the levels of pay for Members of Congress. From the founding of the Republic until 1967, Congressional pay was determined directly by Congress, in specific legislation setting specific rates of pay. The involvement of the Article II Branch took the customary, limited form of recommending legislation and, if the President approved, signing it into law.
This historic practice underwent a fundamental reordering by virtue of the 1967 statute, as amended in 1985. The new structure for setting Congressional pay ushered in by the Salary Act was aptly summarized by the District Court:
In essence, the 1967 Act, as amended, authorizes the creation once every four years of a Commission, members of which are appointed variously by the President, the Chief Justice, the Speaker of the House and the President of the Senate for a term of one fiscal year. The Act requires the Commission to review the rates of pay of, among others, Senators, Congressmen, Justices, and other federal judges, as well as high ranking officials of the Executive Branch. The Commission is supposed to submit to the President a report of the results of each review. The President, in turn,
is required to include, in the budget next transmitted ... by him to the Congress after the date of the submission of the report and recommendations of the Commission ... his recommendations with respect to the exact rates of pay which he deems advisable....
The recommendations of the President become effective and are to be printed in the Statutes at Large and the Federal Register unless during the 30-day period following the transmittal of these recommendations Congress enacts a joint resolution disapproving the recommendations or enacts a statute establishing rates other than those proposed by the recommendations.
Memorandum Opinion at 1-2, Joint Appendix (J.A.) at 43-44 (citation and footnote omitted.)
In the wake of a pay increase that went into effect in early 1987, Senator Humphrey and his co-plaintiffs initiated this action in federal district court. In their view, the statutory mechanism created by the Salary Act ran afoul of the Ascertainment Clause of the Constitution. That provision, found at Article I, Section 6, Clause 1, provides:
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.
In addition to their Ascertainment Clause challenge, plaintiffs contended that the Salary Act's conferral upon the President of authority to set salary amounts as the President "deems advisable" was violative of the non-delegation doctrine informing our system of separated powers. The plaintiffs assert "that none of the delegations previously condoned by the appellate courts was so sweeping nor the standard so broad and subjective as that evidencing delegation to the President of the power to fix such salaries as he deems 'advisable.' " Memorandum Opinion at 4-5, J.A. at 46-47. See 2 U.S.C. Sec. 358 ().
On cross-motions for summary judgment, the District Court concluded that the Congressional plaintiffs enjoyed standing by virtue of Pressler v. Simon, 428 F.Supp. 302 (D.D.C.1976) (three judge court), aff'd sub nom. Pressler v. Blumenthal, 434 U.S. 1028, 98 S.Ct. 758, 54 L.Ed.2d 776 (1978), a case which will loom large in our subsequent analysis. The court further concluded that the doctrine of "equitable discretion" articulated by this court in Riegle v. Federal Open Market Committee, 656 F.2d 873 (D.C.Cir.), cert. denied, 454 U.S. 1082, 102 S.Ct. 636, 70 L.Ed.2d 616 (1981), did not counsel in favor of dismissal of the legislators' action, because no private plaintiffs would be available to carry on the suit. Riegle had intimated in dicta that the inability of private plaintiffs to bring suit would render the doctrine of equitable discretion inapplicable; in circumstances, as here, where private plaintiffs were wanting, Congressional plaintiffs might therefore be permitted to maintain the suit. In his memorandum opinion, Judge Oberdorfer acknowledged that this court's post-Riegle cases had failed to consider the availability of private plaintiffs in determining whether the court should exercise equitable discretion. Exercising caution, however, the District Judge went on to conclude: "In the absence of a more explicit directive from the Supreme Court or the Court of Appeals, this Court should not exercise its 'equitable discretion' in a manner that would effectively preclude judicial review of an important challenge to an Act of Congress." Memorandum Opinion at 9. 3
In deciding the merits, the District Court viewed Congress' retention of power, both within the 30-day statutory period and thereafter, to displace or supercede the President's recommendations, as bringing the amended statutory mechanism within the protective holding of Pressler v. Simon, supra, which upheld the 1967 Salary Act's structure against Ascertainment Clause challenge. As Judge Oberdorfer felicitously put it in his opinion, the remaining control enjoyed by the Article I branch over the terms of its own compensation "precludes a meaningful distinction of Pressler." Memorandum Opinion at 12. Pressler was therefore deemed controlling, and mandated rejection of Senator Humphrey's contention on the merits.
In our view, our recent decision in Melcher v. Federal Open Market Committee, supra, 836 F.2d 561, makes it clear that it would constitute an abuse of discretion for the judiciary to allow Senator Humphrey and his House colleagues to maintain this suit. See supra n. 3. Melcher reaffirmed the law of this circuit, namely that the doctrine of equitable discretion applies in suits where legislators bring "to the courthouse what amounts to a dispute properly within the domain of the legislative branch." Melcher, 836 F.2d at 563. That is the case here. Whatever the practical difficulties and political realities, Senator Humphrey and his co-plaintiffs have readily at hand, as Judge Oberdorfer correctly observed, an "in-house" remedy within the meaning of this court's decision in Riegle v. Federal Open Market Committee, supra, 656 F.2d at 879. Under the doctrine of equitable discretion, the availability of an internally available remedy to Members of Congress means that it would be an abuse of discretion for the judiciary to entertain the action. Melcher, supra, 836 F.2d at 565. And, as we noted above, see supra n. 3, Melcher resolved any Riegle -spawned ambiguity over the relevance of the availability (or not) of private plaintiffs. 4
We are fully mindful, however, that this circuit's recently minted doctrine of equitable discretion has not even been addressed, much less endorsed, by the Supreme Court. Moreover, several members of this court have previously expressed concern over whether equitable discretion represents "a viable doctrine upon which to determine the fate of constitutional litigation." See Melcher, supra, 836 F.2d at 565 (Edwards, J., concurring); see also id. at 565 n. 4 (majority opinion). Those concerns, which all members of this panel share, continue to trouble us. As a panel, however, we are of course bound faithfully to follow and apply the law of our circuit. We therefore conclude that the District Court was obliged to dismiss this suit under the doctrine of equitable discretion.
In the alternative, we hold that, even were Melcher not controlling, we are in accord with Judge Oberdorfer's view of the merits of appellants' challenge. In Pressler v. Blumenthal,...
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