Lead Opinion
Oрinion for the court filed by Chief Judge RADER, in which Circuit Judges NEWMAN, MAYER, LOURIE, LINN, PROST, MOORE, O’MALLEY, REYNA and WALLACH join.
Dissenting opinion filed by Circuit Judge DYK, in which Circuit Judge BRYSON joins.
Concurring opinion filed by Circuit Judge O’MALLEY, in which Circuit Judges MAYER and LINN join.
Concurring opinion filed by Circuit Judge WALLACH.
The Constitution erects our government on three foundational corner stones — one of which is an independent judiciary. The foundation of that judicial independence is, in turn, a constitutional protection for judicial compensation. The framers of the Constitution protected judicial compensation from political processes because “a power over a man’s subsistence amounts to a power over his will.” The Federalist No. 79, p. 472 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Thus, the Constitution provides that “Compensation” for federal judges “shall not be diminished during their Continuance in Office.” U.S. Const, art. Ill, § 1 (“Compensation Clause”).
This case presents this court with two issues involving judicial independence and constitutional compensation protections— one old and one new. First, the old question: does the Compensation Clause of Article III of the Constitution prohibit Congress from withholding the cost of living adjustments for Article III judges provided for in the Ethics Reform Act of 1989 (“1989 Act”)? To answer this question, this court revisits the Supreme Court’s decision in United States v. Will,
The new issue involves pure statutory interpretation, namely, whether the 2001 amendment to Section 140 of Pub. L. No. 97-92 overrides the provisions of the 1989 Act. This court concludes the 1989 Act was enacted after Section 140, and as such, the 1989 Act’s automatic cost of living adjustments control.
I.
The 1989 Act overhauled compensation and ethics rules for all three branches of government. With respect to the judiciary, it contained two reciprocal provisions. On the one hand, the 1989 Act limited a federal judge’s ability to earn outside income and restricted the receipt of honoraria. On the other hand, the 1989 Act provided for self-executing and non-discretionary cost of living adjustments (“COLA”) to protect and maintain a judge’s real salary.
The 1989 Act provides that whenever a COLA for General Schedule federal employees takes effect under 5 U.S.C. § 5303, the salary of judges “shall be adjusted” based on “the most recent percentage change in the [Employment Cost Index] ... as determined under section 704(a)(1) of the Ethics Reform Act of 1989.” Pub. L. No. 101-194, § 704(a)(2)(A), 103 Stat. 1716, 1769 (Nov. 30, 1989). The Employment Cost Index (“ECI”) is an index of wages and salaries for private industry workers published quarterly by the Bureau of Labor Statistics. Section 704(a)(1) of the 1989 Act calculates COLAs by first determining the percent change in the ECI over the previous year. Id. at § 704(a)(1)(B). Next, the statutory formula reduces the ECI percentage change by “one-half of 1 percent ... rounded to the nearest one-tenth of 1 percent.” Id. However, no percentage change determined under Section 704(a)(1) shall be “less than zero” or “greater than 5 percent.” Id.
While the 1989 Act states that judicial salary maintenance would only occur in concert with COLAs for General Schedule federal employees under 5 U.S.C. § 5303, these General Schedule COLAs are automatic, i.e., they do not require any further cоngressional action. See 5 U.S.C. § 5303(a). The only limitation on General Schedule COLAs is a presidential declaration of a “national emergency or serious economic conditions affecting the general welfare” making pay adjustments “inappropriate.” 5 U.S.C. § 5303(b).
Notwithstanding the precise, automatic formula in the 1989 Act, the Legislative branch withheld from the Judicial branch those promised salary adjustments in fiscal years 1995, 1996, 1997, and 1999. During these years, General Schedule federal employees received the adjustments under Section 5303(a), but Congress blocked the adjustments for federal judges. See Pub. L. No. 103-329, § 630(a)(2), 108 Stat. 2382, 2424 (Sept. 30, 1994) (FY 1995); Pub. L. No. 104-52, § 633,109 Stat. 468, 507 (Nov. 19, 1995) (FY 1996); Pub. L. No. 104-208, § 637, 110 Stat. 3009, 3009-364 (Sept. 30, 1996) (FY 1997); Pub. L. No. 105-277, § 621, 112 Stat. 2681, 2681-518 (Oct. 21, 1998) (FY 1999).
In response to these missed adjustments, several federal judges filed a class action alleging these acts diminished their compensation in violation of Article III. After certifying a class of all federal judges serving at the- time (including appellants) and without providing notice or
On appeal, this court reversed the district court’s judgment. See Williams,
Following this court’s decision in Williams, Congress amended a 1981 appropriations rider commonly known as Section 140. Section 140 originally read:
Notwithstanding any other provision of law or of this joint resolution, none of the funds appropriated by this joint resolution or by any other Act shall be obligated or expended to increase, after the date of enactment of this joint resolution, any salary of any Federal judge or Justice of the Supreme Court, except as may be specifically authorized by Act of Congress hereafter enacted: Provided,. That nothing in this limitation shall be construed to reduce any salary which may be in effect at the time of enactment of this joint resolution nor shall this limitation be construed in any manner to reduce the salary of any Federal judge or of any Justice of the Supreme Court.
Pub. L. No. 97-92, § 140, 95 Stat. 1183, 1200 (1981) (codified at 28 U.S.C. § 461 note) (emphasis added). While Section 140 originally expired in 1982, see Williams,
Following the Section 140 amendment, Congress enacted legislation specifically allowing federal judges to receive the salary adjustments mandated by the 1989 Act in fiscal years 2002, 2003, 2004, 2005, 2006, 2008, and 2009. See Barbara L. Schwemle, Congressional Research Service, Legislative, Executive, and Judicial Officials: Process for Adjusting Pay and Current Salaries 2-4 (Feb. 9, 2011). For fiscal years 2007 and 2010, all General Schedule and Executive level federal employees received COLAs under 5 U.S.C. § 5303(a), but federal judges received no adjustments. Congress did not affirmatively authorize judicial COLAs in those years and took the position that, because of the requirements of Section 140, judicial COLAs could not be funded.”
The current case results from the combination of the blocking legislation of the 1990s and the amendment to Section 140. Appellants , are six current and former Article III judges, all of whom entered into federal judicial service before 2001. In January 2009, they filed a complaint in the United States Court of Federal Claims
The Court of Federal Claims dismissed the complaint based on the Williams precedent. On appeal, this court summarily affirmed the judgment, stating that “Williams controls the disposition of this matter.” Beer v. United States,
The Supreme Court granted the subsequent petition for certiorari, vacated the judgment, remanded the case for “consideration of the question of preclusion,” and stated that “further proceedings ... are for the Court of Appeals to determine.” Beer v. United States, — U.S. -,
Upon remand, this court unanimously concluded that Appellants were not precluded from bringing their Compensation Clause claims in the present case. Beer v. United States,
II.
This court has jurisdiction over the Court of Federal Claims’ dismissal of the Appellants’ complaint under 28 U.S.C. § 1295(a)(3). This court reviews the dеcision to dismiss the complaint without deference. Hearts Bluff Game Ranch, Inc. v. United States,
This court en banc now turns its attention to two preliminary issues before addressing the merits of the appeal. First, judicial review of laws affecting judicial compensation is not done lightly as these cases implicate a conflict of interest. Will,
On the other preliminary procedural question, this court deliberately limits the questions under review. To be specific, this court en banc does not overrule the Williams panel’s analysis of Section 140. See
III.
At the outset, this court must honor and address the Supreme Court’s decision in Will. As the Williams panel correctly noted, if Will resolves the validity of Congress’ decision to block the COLAs promised in the 1989 Act, then any remedy for salary diminution in this case lies not in this court but in the Supreme Court. See Williams,
United States v. Will, supra, tested the validity of congressional blocking acts рreventing COLAs provided for under the 1975 Adjustment Act (“1975 Act”). The 1975 Act purported to protect judicial salaries with adjustments calculated under an opaque and indefinite process. Section 5305, as in effect in 1975, directed the President to “carry out the policy stated in section 5301” when giving COLAs to General Schedule federal employees. 5 U.S.C. § 5305(a) (1976). Section 5301 in turn articulated a four-fold policy for setting federal pay: (1) equal pay for equal work; (2) pay distinction based on work and performance distinctions; (3) comparable pay with private sector jobs for comparable work; and (4) interrelated statutory pay levels. 5 U.S.C. § 5301(a) (1976).
In furtherance of this policy, the President appointed an agent to prepare an annual report on federal salaries. 5 U.S.C. § 5305(a)(1) (1976). This annual report relied on statistics from the Bureau of Labor Statistics on private sector pay, views of the “Federal Employees Pay Council” about the comparability of private and public sector pay systems, and the views of employee organizations not represented in the Council. 5 U.S.C. § 5305(a)(1) (1976). This report did not and could not mandate the award of COLAs.
The President also received a report from “The Advisory Committee on Federal Pay.” 5 U.S.C. § 5305(a)(2) (1976). This committee reviewed the report issued by the President’s agent under section 5305(a)(1) and considered further views and recommendations provided by “employee organizations, the President’s agent, other officials of the Government of the United States, and such experts as it may consult.” 5 U.S.C. § 5306(a)-(b) (1976).
Based on these reports, the President could provide COLAs to General Schedule federal employees. 5 U.S.C. § 5305(a)(2). If the President decided to recommend an adjustment, he would transmit to Congress the overall adjustment percentage. 5 U.S.C. § 5305(a)(3). Any judicial COLAs were pegged to the “overall percentage” in the President’s report to Congress under section 5305. 28 U.S.C. § 461 (1976).
Despite the 1975 Act, Congress allowed several COLAs for General Schedule federal employees but denied the increases to judges and other senior officials. The Supreme Court discussed the details of the legislation that blocked these increases. See Will,
The 1989 Act, informed by the failures of the 1975 Act’s procedure, adopted a different purpose, used a different structure, and created different expectations than the 1975 Act. The 1975 Act “involved a set of interlocking statutes which, in respect to future cost-of-living adjustments, were neither definite nor precise.” Williams,
By contrast, the 1989 Act promised a mechanical implementation of COLAs for judges under the following equation:
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See Pub. L. No. 101-194, § 704(a)(1)(B), 103 Stat. 1716, 1769 (Nov. 30, 1989). The Act contained only two limits: a presidential prohibition (due to national emergency or extreme economic circumstances) and a ceiling (of no more than five percent). Id.
In essence, the statutes reviewed in Will required judicial divination to predict a COLA and prevented the creation of firm expectations that judges would in fact receive any inflation-compensating adjustment. In that context, as the Supreme Court noted, no adjustment vested until formally enacted and received. However, the statutes reviewed in Williams and in this case provide COLAs according to a mechanical, automatic process that creates expectation and reliance when read in light of the Compensation Clause. Indeed a prospective judicial nominee in 1989 might well have decided to forego a lucrative legal career, based, in part, on the promise that the new adjustment scheme would preserve the real value of judicial compensation.
Aside from their respective differences in methods for calculating COLAs, the 1989 Act’s overall scope and legislative history distinguishes it from the statutory scheme addressed in Will. In fact, the automaticity of the 1989 Act’s COLAs takes on heightened significance in light of
Of the 935 active and senior judges in 1987, four hundred reported earning outside income from teaching law, speaking fees, and other sources. 135 Cong. Rec. S29,693 (daily ed. Nov. 17, 1989). More than half reported extra earnings from $16,624 to $39,500. Id. The Report by The Bipartisan Task Force on Ethics, which became the basis for the Ethics Reform Act of 1989, noted that the repeated failure to provide recommended salary increases for judges and other executive employees meant increased reliance on “earning honoraria as a supplement to their official salaries.” 135 Cong. Rec. H30,744 (daily ed. Nov. 21, 1989) (Task Force Report). During consideration of the 1989 Act, Congress acknowledged that denying access to outside income would amount to a “pay cut.” 135 Cong. Rec. S29,662 (daily ed. Nov. 17, 1989) (statement of Sen. Dole that removing outside income is a “pay cut”); see also 135 Cong. Rec. H29,488 (daily ed. Nov. 16, 1989) (statement of Rep. Fazio), H29,492 (daily ed. Nov. 16, 1989) (statement of Rep. Ford). In that context, reliance on the 1989 Act’s compensation maintenance formula took on added significance. See 135 Cong. Rec. H29,503 (daily ed. Nov. 16, 1989) (statement of Rep. Wolpe) (“[The] pay adjustment provision [is] tied directly to the elimination of all honoraria or speaking fees.”). Indeed, the Task Force Report emphasized that the restrictions and limitаtions on outside earned income, honoraria, and employment made by the Act are conditional on the enactment of the increased pay provisions. 135 Cong. Rec. H30,745 (daily ed. Nov. 21, 1989) (Task Force Report).
The dependable COLA system became “a final important part” of the package designed to remove salaries “from their current vulnerability for political demagoguery.” 135 Cong. Rec. H29,483 (Nov. 16, 1989) (statement of Rep. Fazio); H30,753 (Nov. 21, 1989) (Task Force Report). In sum, the 1989 Act reduced judges’ income by banning outside income but promised in exchange automatic maintenance of compensation — a classic legislative quid pro quo. 135 Cong. Rec. H29,484 (Nov. 16, 1989) (statement of Rep. Martin stating that the Ethics Reform Act of 1989 is a comprehensive and interrelated package); cf. 135 Cong. Rec. H29,499 (Nov. 16, 1989) (statement of Rep. Crane objecting to the interrelated nature of the package and advocating separate bills for ethics and pay).
Thus, the 1989 statutory scheme was a precise legislative bargain which gave judges “an employment expectation” at a certain salary level. Cf. United States v. Hatter,
The vesting rules considered in Will are not expressly limited to the 1975 Act. However, the Supreme Court had no occasion to draw a distinction between a discretionary COLA scheme and a self-executing, non-discretionary adjustment for inflation coupled with a reduction in judicial compensation via elimination of outside income. For this reason, therefore, this court must examine further the actual differences in the two statutory schemes.
The Supreme Court described the adjustments under the 1975 Act as “automatic.” See Will,
While the Supreme Court described the COLAs in Will as “automatic,” the only aspect that was truly automatic was the link between judicial and General Schedule employee salaries. Whether General Schedule employees (and judges) would receive COLAs in any given year or whether those COLAs would maintain earning levels was anything but certain under the 1975 Act. Consequently, the only line the Supreme Court could draw in Will was between before and after the COLAs at issue were funded. The 1989 Act’s scheme presents a much different landscape than the Court confronted in Will. For these reasons, Will does not foreclose the relief that the judges seek.
Although this court determines that Williams incorrectly applied Will and other aspects of the law, this determination does not end the inquiry. The court must now examine whether Congress’ decisions to deny the promised COLAs actually violated the Compensation Clause in Article III of the Constitution.
The Compensation Clause has two basic purposes. First, it promotes judicial independence by protecting judges from diminishment in their salary by the other branches of Government. The founders of this nation understood the connections amongst proteсtions for Life, Liberty, and the Pursuit of Happiness, protections for judicial independence, and protections for judicial compensation. Listed among the colonists’ grievances with the English Crown was that the King “ha[d] made Judges dependent on his Will alone for the Tenure of their Offices, and the amount and payment of their salaries.” Decl. of Independence para. 11 (U.S. 1776). As explained in The Federalist Papers, “[n]ext to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support.” The Federalist No. 79, p. 472 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
During the Constitutional Convention in 1787, the inspired draftsmen set out to protect against abuses such as those enumerated in the Declaration of Independence. James Madison of Virginia proposed prohibiting both enhancement and reduction of salary lest judges defer unduly to Congress when that body considered pay increases. Will,
The Compensation Clause, as well as promoting judicial independence, “ensures a prospective judge that, in abandoning private practice — more often than not more lucrative than the bench — the compensation of the new post will not diminish.” Will,
The dual purpose of the Compensation Clause protects not only judicial compensation that has already taken effect but also reasonable expectations of maintenance of that compensation level. See Williams,
Prospective judges should likewise enjoy the same expectation of independence and protection. A lawyer making a decision to leave private practice to accept a nomination to the federal bench should be entitled to rely on the promise in the Constitution and the 1989 Act that the real value of judicial pay will not be diminished. Will,
To be sure, the Compensation Clause does not require periodic increases in judicial salaries to offset inflation or any other economic forces. As noted before, the Constitutional Convention did not tie judicial salaries to a commodity or other standard of measurement. Will,
Congress committed to providing sitting and prospective judges with annual COLAs in exchange for limiting their ability to seek outside income and to offset the effects of inflation. This decisiоn furthered the Founders’ intention of protecting judges against future changes in the economy. Instead of fixing compensation relative to a commodity subject to inflationary pressure, Congress pegged the adjustment to a known measure of change to the economy as a whole, thus protecting the real salary of judges from both inflation and from fickle political will. By enacting blocking legislation in 1995, 1996, 1997, and 1999, Congress broke this commitment and effected a diminution in judicial compensation.
Congress is not precluded from amending the 1989 Act. Congress may set up a scheme promising judges a certain pay scale or yearly cost of living increases. However, the Constitution limits those changes. If a future Congress wishes to undo those promises, it may, but only prospectively. Any restructuring of compensation maintenance promises cannot affect currently-sitting Article III judges.
IV.
Turning now to the second question, this court determines that the 2001 amendment to Section 140 of Pub. L. 97-92 has no effect on the compensation due to judges. Unlike the preceding discussion of the Compensation Clause, this is a question of statutory interpretation. Without a statutory basis for withholding the COLAs, federal judges should have received the adjustments in 2007 and 2010. These adjustments are payable to the judges regardless of constitutional protections. Congress simply had no statutory authority to deny them.
As noted above, Section 140 was part of an appropriations bill passed in 1981. It barred judges from receiving additional compensation except as Congress specifically authorized in legislation postdating Section 140. See Pub. L. No. 97-92, § 140, 95 Stat. 1183, 1200 (Dec. 15, 1981). The appropriations act containing Section 140 expired by its terms on September 30, 1982. See Williams,
Of course, in 2001, Congress amended Section 140, purporting to apply it “to fiscal year 1981 and each fiscal year thereafter.” Pub. L. No. 107-77, Title VI, § 625, 115 Stat. 748, 803 (2001). Notably, Congress chose 1981 as the effective date for this extension of Section 140. As shown above, Congress did not explicitly authorize judicial compensation adjustments in 2007 and 2010. If Section 140 applied to bar those 2007 and 2010 adjustments, the absence of that additional Act of Congress would block — solely on the basis of this statute — any adjustments in those years.
Section 140, however, by its own terms, did not block the 2007 and 2010 adjustments. Section 140 is straightforward: it bars judicial salary increases unless (1) “specifically authorized by Act of Congress” and (2) “hereafter enacted.” Pub. L. No. 97-92, § 140. The 1989 Act’s pre
Section 140 was enacted in 1981 and the 1989 Act occurred eight years later. Thus, the 1989 Act was “hereafter enacted” within Section 140’s meaning. When Congress amended Section 140 in 2001, it did not wipe the slate clean and set a new benchmark for the “hereafter enacted” requirement. The 2001 amendment makes no reference to its own November 28, 2001, enactment date. Instead, the amendment reiterates the 1981 baseline found elsewhere in the original Section 140, making the provision applicable to “ ‘fiscal year 1981 and each fiscal year thereafter.’ ” Pub. L. No. 107-77. An amendment referring only to fiscal year 1981 cannot redefine “hereafter” to refer to an entirely different date two decades later. Thus, the “hereafter enacted” requirement remained unchanged setting the “herеafter enacted” trigger date as 1981. In other words, Congress amended the existing Section 140 in 2001, but Section 140 remained a part of the Public Law 97-92 enacted in 1981.
Furthermore, the amendment did not change Section 140’s enactment date. Indeed the Government agreed at oral argument before this court en banc that the 2001 amendment did not change the “hereafter enacted” clause of Section 140. The 2001 amendment merely erased Section 140’s expiration date, making permanent whatever effect the provision had when originally enacted. Congress thus expunged this court’s holding in Williams that Section 140 expired in 1982. The 2001 amendment, however, did not change Section 140’s substantive scope.
The 1989 Act’s precise, automatic COLAs satisfy the requirements of Section 140 because it was enacted after Section 140. The Government withheld COLAs from judges in 2007 and 2010 solely because the government misinterpreted Section 140 as requiring a separate and additional authorizing enactment to put those adjustments into effect. By its own terms, Section 140 did not require that further authorizing legislation because it permitted COLAs under the “hereafter enacted” 1989 Act.
V.
In this case, Congress’ acts in 1995, 1996, 1997, and 1999 constitute unconstitutional diminishments of judicial compensation. Additionally, statutorily promised cost of living adjustments were withheld in 2007 and 2010 based on an erroneous statutory interpretation. Appellants’ motion to amend their complaint to include a challenge to the 2010 withholdings is granted. See Mills v. Maine,
The statute of limitations does not bar these claims because, as established in Friedman v. United States,
VI.
This court has an “obligation of zealous preservation of the fundamentals of the nation. The question is not how much strain the system can tolerate; our obligation is to deter potential inroads at their inception, for history shows the vulnerability of democratic institutions.” Beer v. United States,
OVERRULED-IN-PART, VACATED-IN-PART, AND REMANDED
Dissenting Opinion
with whom BRYSON, Circuit Judge, joins, dissenting.
The majority opinion brings to mind an exchange between Learned Hand and Justice Holmes. Judge Hand enjoined Justice Holmes to “[d]o justice” on the bench, but the Justice demurred: “That is not my job. My job is to play the game according to the rules.” Learned Hand, A Personal Confession, in The Spirit of Liberty 302, 306-07 (Irving Dilliard ed., 3d ed. 1960). If the Supreme Court must play by the rules, that duty must be doubly binding on subordinate federal courts. Fidelity to this principle mandates adherence to the Supreme Court’s opinion in United States v. Will,
I
While the majority’s approach has much to recommend it as a matter of justice to the nation’s underpaid Article III judges, it has nothing to recommend it in terms of the rules governing adjudication. “The criterion of constitutionality is not whether we believe the law to be for the public good,” Adkins v. Children’s Hosp.,
The Court in Will explained that for two of the years,
the statute was passed before the Adjustment Act increases had taken effect — before they had become a part of the compensation due Article III judges. Thus, the departure from the Adjustment Act policy in no sense diminished the compensation Article III judges were receiving; it refused only to aрply a previously enacted formula.
A paramount — indeed, an indispensable — ingredient of the concept of powers delegated to coequal branches is that each branch must recognize and respect the limits on its own authority and the boundaries of the authority delegated to the other branches. To say that the Congress could not alter a method of calculating salaries before it was executed would mean the Judicial Branch could command Congress to carry out an announced future intent as to a decision the Constitution vests exclusively in the Congress. We therefore conclude that a salary increase “vests” for purposes of the Compensation Clause only when it takes effect as part of the compensation due and payable to Article III judges.
Under Will’s bright-line vesting rule, Congress was free to “abandon” a statutory formula and revoke a planned cost-of-living adjustment (“COLA”), as long as the revoking legislation was enacted into law before the COLA “took effect,” that is, became “due and payable” (i.e., before October 1, the first day of the next fiscal year). Id. at 227-29,
Will thus made clear that a future salary increase only becomes protected by the Compensation Clause when it becomes “due and payable”; an increase which is merely anticipated or expected has not vested, and is not protected. By declining to follow Will’s clear vesting rule here, the mаjority also rejects the carefully crafted panel opinion in Williams v. United States,
II
The majority attempts to redefine the constitutional test as turning not on “vesting,” but on “reasonable expectations,” a concept that appears nowhere in the Will opinion. To justify this shift, the majority seeks to distinguish Will on its facts, namely on the dubious ground that the “automatic” salary adjustment scheme in Will was different from the “automatic” salary adjustment scheme in place in Williams and here. But even if factual differences were pertinent (which, as we discuss below, could not support a depar
Nevertheless, the majority asserts that the expectation of a COLA created by the Williams statutes was signifiсantly more “precise and definite,” Majority Op. 1183, because under Will’s more complex scheme, there was greater discretion over the COLA — an assertion which is accurate only insofar as the President’s agent and Advisory Committee had greater discretion in setting the initial amount of the GS COLA. Under each statutory scheme, the President’s discretion was the same.
But whatever the discretion, if the test were “reasonable expectations,” then the key question would not be how the statutory scheme initially determined a COLA, but whether the amount of the COLA had become “precise and definite” at the time the blocking statute thwarted the judges’ expectations. In this respect, Will cannot be distinguished from Williams. For Will Year 3, no “judicial divination,” Majority Op. 1181, would have been required: a GS COLA of 5.5% had already been specified in the President’s Alternative Plan, 14 Weekly Comp. Pres. Docs. 1480 (Aug. 31, 1978), which was adopted and transmitted to Congress by the President a month before the Year 3 blocking statute was enacted. Will,
Of course, the COLAs remained uncertain in another respect: in both Will and Williams, the presumptive GS COLA could still be overridden by Congressional action, and in fact it was overridden for one of the Williams years.
Finally, the majority here suggests that Will is distinguishable because the statutes here (unlike the statutes in Will) imposed limits on the judges’ outside income, without “an increase in judicial pay.” Majority Op. 1182. But the majority can hardly make a credible claim that judges’ outside compensation is protected by the Compensation Clause, and it follows that the reduction of outside compensation cannot create a Compensation Clause issue where none would otherwise exist.
Even if the two statutory schemes were meaningfully different, and the Williams scheme created “reasonable judicial expectation[s] of future compensation” that did not exist in Will, Appellants’ Br. 29-31, that would be quite beside the point. Neither counsel for the appellants nor the majority is able to explain how that difference authorizes this court to disregard Will’s clear vesting rule. The majority concedes that “the vesting rules considered in Will are not expressly limited to the 1975 Act.” Majority Op. 1183. There is no basis for concluding that a “reasonable expectations” test has supplanted the Will vesting rule as the governing test. Certainly no decision of the Supreme Court has shifted the governing principle from vesting to reasonable expectations. There is not even a claim that subsequent decisions of the Court have somehow “underminefd] the reasoning” of Will. United States v. Hatter,
So too our job is to follow the holding of Will, not to confine it to its facts. Numerous Supreme Court decisions, and our own decisions, have made this clear. As the Supreme Court held in Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., a Court of Appeals must not “confus[e] the factual contours of [Supreme Court precedent] for its unmistakable holding” in an effort to reach a “novel interpretation” of that precedent.
The fact that three Justices of the Court, dissenting from a denial of certiorari, opined that Will might be distinguished from Williams is not authoritative. See Williams,
In short, neither the dissent from denial of certiorari in Williams nor the Supreme Court’s remand in this case can be read as an invitation for this court to perform reconstructive surgery on Will. The Supreme Court may distinguish its own opinions by limiting them to their facts, see, e.g., Williams v. Illinois, — U.S. -,
Notes
. Plainly Congress saw the references in the 1975 Act to "economic conditions” and in the 1990 Act to "serious economic conditions” as functionally the same, since the President’s discretion was to remain "substantially similar” under the 1990 Act as before.
. Judge O’Malley's concurrence misreads the dissent in suggesting that we view the COLAs in Will as "automatic” only because "the statutory scheme had run its course” in the disputed years. Concur. Op. 1193.
. Will's statutory scheme
required the President to appoint an adjustment agent [who] was to compare sala-
rles in the civil service with those in the private sector and then recommend an adjustment to an Advisory Committee. Subsequently, the Committee would make its own recommendation to the President, accepting, rejecting, or modifying the agent’s recommendation as the Committee thought desirable. The President would have to accept the Committee’s recommendation— unless he determined that national emergency or special economic conditions warranted its rejection.
Williams v. United States,
. For all the Williams years, GS salary adjustment tables were promulgated by Executive Order in the preceding December. Exec. Order 12944, 60 Fed. Reg. 309 (Dec. 28, 1994); Exec. Order 12984, 61 Fed. Reg. 237 (Dec. 28, 1995); Exec. Order No. 13033, 61 Fed. Reg. 68987 (Dec. 27, 1996); Exec. Order No. 13106, 63 Fed. Reg. 68151 (Dec. 7, 1998). In each year, the judges' COLAs had been blocked several weeks to months earlier. See Pub. L. 103-329, Title VI, § 630(a)(2), 108 Stat. 2382, 2424 (1994); Pub. L. 104-52, Title VI, § 633, 109 Stat. 468, 507 (1995); Pub. L. 104-208, Title VI, § 637, 110 Stat. 3009-364 (1996); Pub. L. 105-277, Title VI, § 621, 112 Stat. 2681-518 (1998). For one of the Williams years, 1996, the President transmitted an Alternative Plan to Congress setting a 2% GS COLA before the blocking statute was passed. 31 Weekly Comp. Pres. Docs. 1466, 1466-67 (1995).
. For 1995, Congress reduced the GS COLA to 2%. Pub. L. 103-329, Title VI, § 630(a)(1), 108 Stat. 2382, 2424 (1994). The projected GS COLA had been 2.6%. See Sharon S. Gressle, Cong. Research Serv., Order No. RS20278, Judicial Salary-Setting Policy 6 (March 6, 2003).
. Under the Will scheme, in addition to enacting separate legislation, Congress could have disapproved the Alternative Plan by a one-house legislative veto. Will,
. In fact, the 1989 Act did increase judicial pay by 25%, thus offsetting the limitations on outside income. Pub. L. 101-194 § 703(a)(3), 103 Stat. 1716, 1768 (1989).
. Appellants also argue that the 2007 and 2010 COLAs were improperly withheld because no blocking legislation was enacted in those years, and Section 140, as amended in 2001, was either inapplicable or unconstitutionally discriminated against federal judges under the Supreme Court's decision in Hatter. While we agree that this issue is not resolved by Will, these statutory and constitutional arguments were not properly raised below, and we decline to address them here.
Concurrence Opinion
with whom MAYER and LINN, Circuit Judges, join, concurring.
I join the majority, both in the judgment it reaches and in its reasoning. I write separately to address two issues.
First, I write to explain why I believe that, if United States v. Will,
I
I first turn to Will. I agree with the majority that Will did not reach the issue presented here and, thus, does not dictate the result we may reach today. The position taken by the dissent, and by the Williams majority before it, is not without some force, however. One cannot deny that the adjudicatory principles upon which they rely are important ones, even if the majority concludes they are not determinative here. If the dissent is correct that we are forced to glean sweeping Compensation Clause principles from Will governing all forms of statutory enactments designed to increase judicial pay, we must also be forced to conclude that Witt’s analysis is flawed, both jurisprudentially and constitutionally.
A. Jurisprudentially
I find several aspects of the Will decision problematic. First, a close look at the facts and reasoning in Will reveals its internal inconsistency; neither its analysis nor its ultimate conclusion matches the facts presented. Specifically, while the Court in Witt initially characterized the statutory scheme at issue there as “automatic,”
1. Use of the Term “Automatic”
As the majority notes, the statutory scheme at issue in Witt — the Executive Salary Cosl^of-Living Adjustment Act of 1975, Pub. L. 94-82, 89 Stat. 419 (Aug. 9, 1975) (“the Adjustment Act”) — was a complex scheme, fraught with discretion and uncertainty. Despite this, Will characterized the Adjustment Act as a pay adjust
As the majority notes, it is hard to understand the Court’s use of the term automatic in the context of the Adjustment Act. Normally, to say something is “automatic” is to say it occurs involuntarily or without further debate. See Oxford English Dictionary def. A(l); A(7)(a) (3d ed. June 2011; online version June 2012); see also American Heritage Dictionary 121 (5th ed. 2011) (def. 2a: defining “automatic” as “[ajcting or done without vоlition or conscious control; involuntary”). Nothing about the judicial salary adjustments at issue in Will was “automatic,” however.
To the contrary, the adjustments at issue in Will were based on civil service salary adjustments that were entirely discretionary. As explained by the majority, whether federal employees would receive a COLA, and in what amount, depended on the initial recommendations of an adjustment agent which were then subject to review by an Advisory Committee, the President, and Congress. This procedure hardly can be described as one that occurs involuntarily. In addition, the statutes setting forth future COLAs were “neither definite nor precise,” and nothing provided that adjustments would be calculated “in a mechanical way.” Williams v. United States,
The dissent explains the Court’s mischaracterization of the Adjustment Act’s pay scheme by noting that, for the years in question in Will, the statutory scheme had run its course and resulted in a recommended salary increase by the time Congress acted to block those increases. This, the dissent seems to suggest, explains why the Supreme Court used the term “automatic” to describe what was before it. While that argument has a certain logic to it, it does not explain why the Court’s constitutional analysis focused on the absence of a guarantee under the Adjustment Act.
According to the Supreme Court, the Adjustment Act did not “alter the compensation of judges; it modified only the formula for determining that compensation.” Will,
Thus, the Court explained its Compensation Clause decision in Will by saying it was only dealing with a formula regarding an expressed “future intent” to provide increases; the Court did not say at that point that it was addressing increases that had already been decided upon. More importantly, it did not say it was addressing definite increases that had been promised by operation of law; in explaining its assessment of the Act vis-a-vis the Compensation Clause, the Court spoke of the scheme under the Adjustment Act as one that promised no more than potential adjustments. And, in discussing the concept of vesting, the Court seemed to back away from the notion that it was dealing with anything one could consider “automatic” in the common sense of that word. How can an increase occur “automatically” if a right to it had not yet “vested”?
While I understand why the dissent believes we must assume the Supreme Court meant what it said when it described the Adjustment Act increases as “automatic” ones, that assumption would mean that the Court’s description of the facts presented had little correlation with its reasoning for why those facts did not run afoul of the Compensation Clause.
2. Constitutional Avoidance
Next, if we read Will as broadly as Williams did, and the dissent now does, we must assume that, in Will, the Supreme Court violated its own well-established principle of constitutional avoidance. The Supreme Court has long-recognized that “[jjudging the constitutionality of an Act of Congress is ‘the gravest and most delicate duty that this Court is called upon to perform.’” Citizens United v. Fed. Election Comm’n,
Applying this principle in Citizens United, Chief Justice Roberts explained that the Court’s “standard practice of avoiding broad constitutional questions except when necessary” gives rise to an “order of operations,” whereby the Court considers the narrowest claim first before proceeding, if necessary, to any broader claims.
If we assume that Will is to be read so broadly as to control the result under the very different set of facts presented here, we must also assume the Court spoke to a
In its briefing, the government concedes that there was a narrower approach the Court could have taken. Specifically, the government argues that, “even if the Supreme Court in Will could have based its decision upon the ‘discretionary’ character of the then-applicable statutory scheme, the Court did not decide the case upon that ground. The Court drew no such distinction.” Appellee’s Br. 26-27. If the government is right on this point, it is the very reason why Will was wrong to make the pronouncements upon which the government now relies. If the Court in Will consciously chose not to draw a distinction between a discretionary COLA scheme and a self-executing, non-discretionary one, it: (1) formulated a rule of constitutional law broader than required by the facts presented; and (2) ignored the fundamental precept that judges decide only the cases before them. See Hein v. Freedom from Religion Found., Inc.,
3. Absurd Results
Finally, the definition of “vesting” Williams gleaned from Will cannot be right. If it were: (1) Congress could do away with judicial retirement benefits for all sitting judges; (2) it would be inconsistent with the way the concept of vesting has been applied to similar pay increases for Members of Congress; and (3) it would run afoul of the common law understanding of the way in which future interests “vest” for all other purposes. It necessarily would lead to absurd results.
First, if the definition of “vesting” Williams felt bound to under Will is correct, then Congress could eliminate judicial retirement pay for all sitting Article III judges without violating the Compensation Clause. By statute, Article III judges can retire with full pay once they reach a certain combination of age plus years of judicial service. See 28 U.S.C. § 371. Under this system, the Supreme Court hаs said that the right to receive retirement pay “d[oes] not vest until retirement” and the “system provide[s] nothing for a judge who le[aves] office before age 65.” United States v. Hatter,
In Will, the Court concluded that vesting occurs when a salary increase “takes effect as part of the compensation due and payable to Article III judges.”
Second, Will’s definition of vesting conflicts with the way in which that concept has been applied in the context of the Twenty-Seventh Amendment. In Boehner v. Anderson,
In Williams, the appellee-judges relied on the holding in Boehner to contend that the COLA increases for judicial officers took effect, or vested, when the law was effective, not when the yearly COLAs became due and payable. Williams,
We are now faced with two distinct definitions of the constitutionally effective date of congressionally enacted COLAs. While Will provides that, for Article III purposes, a COLA is effective when it becomes “due and payable,” regardless of
While it is certainly true that the operative date of congressionally designated salary increases is not prescribed in the Constitution, both the Compensation Clause and the Twenty-Seventh Amendment address the Framers’ concerns with in-term salary changes for the respective branches of government — one with decreases in-term and the other with increases in-term. I see no reason why the concept of vesting should be employed in a way to expand Congress’s ability to decrease judicial salaries under the Compensation Clause and be reframed under the Twenty-Seventh Amendment so as to expand Congress’s ability to increase its own.
Finally, the vesting rule articulated in Will is an outlier. As this court in Williams correctly noted, “Mypically, ‘vesting’ of future interests only requires two components: an identification of the future owner, and certainty that the property would transfer.”
If we are to believe that Will advanced such an extreme vesting rule — one applicable only to the Compensation Clause— then the Court should reexamine that rule and correct its mistake. Had the Supreme Court in Will applied the generally-accepted rule for vesting of future interests to the Adjustment Act, the same one the Boehner court applied to congressional pay increases, then a COLA whose formula was codified by law would vest, at an absolute minimum, once the amount of the COLA was established for a particular year. This approach is grounded in “sound equitable principiéis]” and, as we recognized in Williams, has deep common-law roots. See id. at 1032-33.
For the reasons explained in further detail below, as the majority has noted, a more reasonable, consistent, and logical definition of “vesting” under Article III should be governed by the “reasonable expectations” of sitting judicial officers.
B. Constitutionally
If Witt truly established an “actual possession” vesting rule for Compensation Clause purposes, that holding seems indefensible under the Constitution. The Framers formulated the Compensation Clause for the express purpose of maintaining judicial independence, in part by providing judges with reasonable expectations about their pay and the inability of Congress to reduce it. As interpreted in Williams, the Will rule defeats the Framers’ intent and threatens the governmental structure around which the Constitution was formulated.
1. Historical Perspective and the Framers’ Intent
The Compensation Clause “has its roots in the longstanding Anglo-American tradition of an independent Judiciary.” Witt,
As the majority notes, in Federalist 79, Alexander Hamilton emphasized the importance of protecting judicial compensation. Specifically, he argued that, “[n]ext to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support.” The Federalist No. 79 at 385 (Alexander Hamilton) (Lawrence Goldman ed., 2008). Hamilton observed that, “[i]n the general course of human nature, a power over a man’s subsistence amounts to a power over his will.” Id. at 386 (emphasis in original). For this reason, the legislative branch must not “change the condition[s] of the [judiciary] for the worse” so that “[a] man may then be sure of the ground upon which he stands, and can never be deterred from his duty by the apprehension of being placed in a less eligible situation.” Id.
Hamilton’s concerns, and those of many other Framers, were not merely academic. Indeed, throughout the former colonies, legislatures took retributive actions against judges with whom they disagreed, including attempts to remove judges who declared particular laws unconstitutional and to call judges before the legislature to answer for specific rulings. See Julius Goebel, Jr., Antecedents and Beginnings to 1801, in 1 History of the Supreme Court of the United States, 133-42 (Paul A. Freund ed., 1971). These events further supported the founders’ desire to insulate judges from the influence and control of the other branches of government.
The Supreme Court has recognized that the primary purpose of the prohibition against reducing judicial salaries is “not to benefit the judges, but ... to promote that independence of action and judgment which is essential to the maintenance of the guaranties, limitations, and pervading principles of the Constitution.” Evans v. Gore,
The Framers’ desire to insulate judicial pay from the political process was the subject of much debate and angst. While, given the long tenure judges would be asked to serve, there was no doubt some provision should be made for salary increases, the Framers also feared that, if salary decisions were left entirely to Congress, the judiciary might be forced to curry favor with Congress to secure reasonable compensation increases. See Jonathan L. Entin & Erik M. Jensen, Taxation, Compensation, and Judicial Independence, 56 Case W. Res. L. Rev. 965, 972 (2006). To address this concern, James Madison suggested indexing judicial pay to the price of wheat or another stable value. The Framers rejected that idea, however, for fear fluctuations in commodity prices, like inflation, might leave judges undercompensated. See 2 The Records of the Federal Convention of 1787 44-45 (Max Farrand ed., 1911).
Thus, while the Framers foresaw a need for in-term increases in judicial salaries and were concerned with leaving the task of providing those increases to Congress, they saw no alternative; no self-executing system they could devise seemed adequate to ensure that, given the dual effects of inflation and rising standards of living, judges would not be left undercompensated. So trust Congress they did, leaving to it the responsibility to guard against real decreases in judicial salary by future legislative enactments.
In sum, the Framers intended to provide judges reasonable expectations about their pay. The Framers, to be sure, did not contemplate that a judges’ reasonable expectation would mean that he or she would become wealthy by taking the bench, or that Congress necessarily would increase judicial salaries. They believed, however, that Cоngress would assess fairly and periodically the need for increases in judicial compensation, would provide increases when appropriate, and that, once it did so, judicial officers thereafter could rely on the fact that Congress could not take such increases away.
2. The Expectations Approach in Practice
Courts have long-endorsed this expectations-based approach to the Compensation Clause. Indeed, as Justice Breyer has noted, protecting “a judge’s reasonable expectations” is the “basic purposive focus” of the Compensation Clause. Williams,
Other courts likewise have emphasized judicial expectations in their approach to the Compensation Clause. For example, in the early nineteenth century, the Circuit Court for the District of Columbia held that, “if [a judge’s] compensation has once been fixed by law, a subsequent law for diminishing that compensation ... cannot affect [a sitting judge].” United States v. More,
In Will, the Supreme Court discarded the longstanding expectations-based approach to the Compensation Clause in favor of its “due and payable” vesting rule, without clear explanation for doing so. In a terse footnote, the Court distinguished More. See Will, 449 U.S. at 228, n. 32,
The Adjustment Act formula was no different. In the same way that the justices under the fee system in More did not know how much they would work in a particular year, under the Adjustment Act, Article III judges did not know how much their salary would increase in a particular year, if at all. But they did know that, once the formula was enacted for the year, it became part of the compensation due. For example, looking at Year 3 in Will, if we accept the dissent’s proposition that the COLA of 5.5% became automatic once the President’s alternative plan was adopted and transmitted to Congress — which was one month before the Year 3 blocking statute was enacted — then there is no doubt that, as was the case in More, the COLA “was already in place as part of the [judges’] compensation when Congress repealed it.” See Will,
Given these similarities, Will’s dismissal of More is unconvincing. The two opinions are irreconcilable. Either Will is incorrect, or the Court should have said that More was wrong. The Supreme Court should return to the well-established expectations-based approach to the Compensation Clause.
3. The Consequences of Abandoning the Expectations Approach
Assuming Will’s vesting rule allows Congress to bar “automatic” COLAs promised by definitive and precise legislative enactment, that rule is contrary to the constitutional balance the Framers carefully calibrated — one which, of necessity, delegated control over judicial salaries to the legislature, but did so in a way to guard against congressionаl retribution for unpopular judicial decisions. So understood, Will’s vesting rule puts at risk the principles the Framers struggled so hard to foster; it threatens to make the judiciary beholden to Congress in ways which undermine its independence. The Supreme Court should rethink such a rule. See e.g., Mistretta v. United States,
The Framers’ concerns were prescient. Statistics demonstrate that the erosion of judicial pay “has reached the level of a constitutional crisis that threatens to undermine the strength and independence of the federal judiciary.” Chief Justice John G. Roberts, Jr., 2006 Year-End Report on the Federal Judiciary, 39 The Third Branch 1, 1 (2007). Not only is this not the world the Framers contemplated, it is approaching one they most feared. As Hamilton explained, if judicial independence is “destroyed, the constitution is gone, it is a dead letter; it is vapor which the breath of faction in a moment may dissipate.” Commercial Advertiser (Feb. 26, 1802) (reprinted in The Papers of Alexander Hamilton, Volume XXV 525 (Columbia University Press 1977)).
Ill
I finally turn to Section 140 of Pub. L. No. 97-92, 95 Stat. 1183, 1200 (1981), and its role in our assessment of the legality of the congressional action challenged here. I agree with the majority that the existence of Section 140 does not change the conclusion that the failure to provide COLAs mandated by the 1989 Act is unconstitutional, whether the withholding occurred before or after Congress amended that section in 2001. As the majority explains, by its own terms, Section 140 is not applicable to the salary adjustments contemplated by the 1989 Act. If it were, however, as the government contends it is, we could hot enforce it because Section 140 is unconstitutional.
Section 140 provides as follows: Notwithstanding any other provision of law or of this joint resolution, none of the funds appropriated by this joint resolution or by any other Act shall be obligated or expended to increase, after the date of enactment of this resolution, any salary of any Federal judge or Justice of the Supreme Court, except as may be specifically authorized by Act of Congress hereafter enacted....
Pub. L. No. 97-92, § 140, 95 Stat. 1183, 1200 (1981). Section 140 was a rider to a Joint Resolution providing continuing appropriations for fiscal year 1982. In Williams, we held that the government
After Williams, Congress enacted legislation that amended Section 140 to provide that it “shall apply to fiscal year 1981 and each fiscal year thereafter.” Act of Nov. 28, 2001, Pub. L. No. 107-77, § 625, 115 Stat. 803 (“2001 amendment”). Today, the majority assumes that the 2001 amendment supersedes Williams’s holding that Section 140 expired, but agrees with the alternative holding in Williams that, even if not expired, the 1989 Act provides the additional authorization required by Section 140.
Were the majority’s conclusion on that point not correct, then we would be forced to conclude that Section 140 violates the Compensation Clause, both because it singles out Article III judges for disadvantageous treatment and because it violates the principle of separation of powers.
A. Section 140’s Discriminatory Effect
The Supreme Court has held that a law violates the Compensation Clause when it “effectively single[s] out ... federal judges for unfavorable treatment” in their compensation. Hatter,
Section 140 is no different. It only overrides the automatic annual COLAs promised in the 1989 Act for judicial officers. All other federal employees — including high ranking Executive Branch appointees and Members of Congress — remain entitled to those “automatic” adjustments. Only judicial officers are beholden to Congress for an additional affirmative legislative enactment before they may receive the 1989 Act’s COLAs. Thus, post-2001, Section 140 turns the 1989 Act into a law that provides a financial benefit to all federal employees other than judges and puts the judiciary in the position of annually needing to “curry favor” with the legislature for compensation increases, just as the Framers feared. That clearly violates the Compensation Clause. See Hatter,
The fear of disadvantageous treatment of judges under Section 140, as amended, is not hypothetical. Until recently, annual adjustments for federal judges remained in step with those for Executive Branch appointees and Members of Congress. When those groups received automatic adjustments under the 1989 Act, Congrеss also enacted the necessary special legislation to authorize an adjustment for judges. In fiscal year 2007, however, both General Schedule employees and Executive Branch appointees received an automatic adjustment under the 1989 Act, but Congress did not enact special legislation to adjust judicial salaries. The same thing happened in fiscal year 2010. Thus, the link between judicial salary adjustments and those for Executive Branch appointees was severed such that all nonelected federal employees other than Article III judges received COLAs in those years.
B. Section 140 and the Separation of Powers
Section 140 separately poses a separation of powers problem because it conditions the award of COLAs to judges on the receipt of salary adjustments by Members of Congress. The government argues that, in enacting the 1989 Act, “Congress made clear its intent to maintain a system of salary parity among Federal judges, members of Congress, and high-level Executive branch officers.” Appellee’s Br. 17 (citing Report of the Bipartisan Task Force on Ethics on H.R. 3660, Government Ethics Reform Act of 1989, 135 Cong. Rec. 30,756 (Nov. 21, 1989)). As noted above, any “parity” objective vis-a-vis Executive Branch officers has been abandoned. And, it is precisely because Congress has continued to use Section 140 to force a parity between judicial salaries and its own that Section 140 violates the principle of separation of powers.
The concern with the independence оf the judiciary is one which flows directly from the tripartite form of government on which the Constitution is structured. In establishing the system of divided powers in the Constitution, the Framers believed it was essential that “the judiciary remain! ] truly distinct from both the legislature and the executive.” Stem,
As noted earlier, the compromise the Framers struck under the Compensation Clause was one which would entrust to Congress the power and obligation to ensure reasonable salary adjustments for the judiciary over time. This was a compromise born of necessity, however; this mechanism for judicial salary adjustments was not meant to tie those adjustments to legislative salary changes, or to make them dependent on prevailing political winds. The Framers certainly did not mean to use the Compensation Clause to blur the lines between the legislative and judicial branches. That is precisely what Section 140 does, however.
Congress has used Section 140 to link judicial pay to its own, affirmatively authorizing judicial compensation increases thereunder only in years where Congress finds it politically palatable to allow increases in its own. By using Section 140 in this way, Congress has ignored its constitutional duty to assess independently the adequacy of judicial compensation. And, it has ignored the obligation entrusted to it by the Framers to jealously guard the independence of the judiciary. “[Wjhether the Judiciary is entitled to a compensation increase must be based upon an objective assessment of the Judiciary’s needs if it is to retain its functional and structural independence.” Maron v. Silver,
Because Section 140 skirts Congress’s obligations under the Compensation Clause and undermines the independence of the judiciary, it is unconstitutional. The Supreme Court repeatedly has made clear that it is the laws that “threaten[] the institutional integrity of the Judicial Branch” that violate the principle of separation of powers. Mistretta,
IV
I agree with the majority that the failure to provide COLAs promised by the 1989 Act to the judiciary violates the Compensation Clause. I also agree that Will does not dictate a contrary result. “General propositions do not decide concrete cases.” Lochner v. New York,
concurring.
I concur in the results, and in the reasoning of the decision, including the necessity of making this important determination that Congress may not exceed constitutional bounds in its relationship with the judiciary. I write separately only to clarify that this decision does not mean that any particular federal judge other than plaintiffs will necessarily accept acсrued back pay.
. In the alternative, the appellant in Boehner argued that, if the court found the COLA provision vested and constitutional, then a later-enacted statute that cancelled a planned COLA absent an intervening election violated the Twenty-Seventh Amendment.
. Indeed, despite awareness of Will, various state courts interpreting analogous provisions of their own constitutions have held that the failure to provide statutorily promised COLAs unconstitutionally diminishes judicial compensation. See e.g., Jorgensen v. Blagojevich,
. Justice Scalia did not join in this portion of the Court's opinion, concurring on grounds that the Compensation Clause was violated because the congressional action violated the judicial officers' reasonable expectations about their future income package. Hatter,
. Members of Congress did not receive salary adjustments in 2007 or 2010 because they affirmatively chose to opt out of their right to receive them under the 1989 Act. That choice was theirs, however, and not one otherwise mandated by preexisting legislation.