United States v. Will – Oral Argument – October 14, 1980

Media for United States v. Will

Audio Transcription for Opinion Announcement – December 15, 1980 in United States v. Will

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Byron R. White:

Well, so your answer to my question is, for the future, it does take the place of any future entitlement to the 4.8 after October 1?

Thank you.

Kenneth Steven Geller:

As I said, there are two components to judicial salary.

Warren E. Burger:

We will hear argument first this morning in 79-983, United States v. Will, and 79-1689, United States v. Will.

Mr. Geller, you may proceed whenever you are ready.

Kenneth Steven Geller:

Thank you, Mr. Chief Justice, and may it please the Court:

These consolidated cases are direct appeals by the Government from the United States District Court for the Northern District of Illinois which declared unconstitutional four Acts of Congress that were passed in consecutive years between 1976 and 1979 to hold down or eliminate annual cost-of-living salary increases for all high-ranking federal officials, including the Vice President, Members of Congress, Cabinet and sub-Cabinet officials in the Executive Branch, and federal judges.

The District Judge held that to the extent these pay freeze statutes applied to judges, they violated the compensation clause of Article III of the Constitution.

The District Court also held that as a matter of statutory construction the statutes were not intended by Congress to be substantive legislation.

That is, they were not intended to wipe out the federal officials’ entitlement to a cost-of-living increase but were instead only appropriations measures that refused to provide the money for salary increases required by law.

The Government in these appeals has challenged each of these holdings.

Before setting forth the facts that led to these lawsuits I think it would be helpful to begin by briefly explaining the somewhat complicated mechanism by which the pay of federal judges is determined.

For the first 180 years of our Nation’s history, judicial salaries were fixed by Congress essentially on an ad hoc basis.

During this period Congress raised the salaries of Supreme Court Justices on 12 occasions and raised the salaries of lower court judges on nine occasions.

Congress finally changed this system in 1967 by passing the Federal Salary Act.

Under this Act the salaries of federal judges as well as the Vice President, Members of Congress, Cabinet officers, and selected other high level officials are reviewed by a blue ribbon commission every four years to determine appropriate pay levels.

This commission reports its findings to the President who must submit to Congress in his next budget message recommendations for the exact rate of pay for these officials, and then within 60 days both Houses of Congress must vote on the President’s recommendations.

The first federal salary act review took place in fiscal year 1969 and the review process has occurred every four years since then.

In fact, just last week the membership of the fiscal 1981 review commission was announced and that commission is scheduled to make its report to the President on increases in judicial and other salaries by the end of this calendar year.

Now, the Federal Salary Act contains no mechanism for annual adjustments of salaries of the officials covered by that Act.

Rather, the only means specified in the Salary Act for modifying such salaries is the quadrennial review process.

In an attempt to remedy this problem Congress in 1975 passed the Executive Salary Cost-of-Living Adjustment Act.

This Act applies, by and large, to the officials covered by the Federal Salary Act, including federal judges.

Now, under the Adjustment Act judicial salaries are subject to an annual increase equal to the annual percentage cost-of-living increase given to civil service employees in that year, pursuant to yet another statute, the Federal Pay Comparability Act of 1970.

Under The Comparability Act the President each year must designate a pay agent to compare civil service salaries with the rates of pay for the same levels of work in private industry.

Following the study the pay agent submits his report to the President along with a recommendation of appropriate adjustments in civil service rates of pay.

After considering this report the President has two options.

First, he can inform Congress that he agrees with and adopts the agent’s recommendation, in which event the recommended cost-of-living increase automatically goes into effect as of the first pay period after October 1st of that year.

On the other hand, if because of a national emergency or economic conditions affecting the general welfare the President believes that the pay agent’s recommendations are too high, the President may reject the pay agent’s recommendation and submit an alternative pay raise plan to Congress.

If neither House of Congress disapproves the President’s alternative plan, it goes into effect on the first pay period after October 1st.

Kenneth Steven Geller:

However, if the House or the Senate disapproves the President’s alternative plan within 30 days, then the original recommendation of the pay agent goes into effect for civil service employees.

Harry A. Blackmun:

And that can be downward as well as upward?

Kenneth Steven Geller:

The President’s recommendation could conceivably be downwards, and generally it is downwards rather than upward.

Now, as I mentioned earlier, the Adjustment Act ties the cost-of-living increases of high-ranking federal officials including federal judges to the average cost-of-living increase given to civil servants under the Comparability Act.

In addition the Adjustment Act specifies the effective date of any such adjustment for judges as of October 1st of each year.

So, to summarize, judicial pay is determined by reference to three separate statutes.

There is the Federal Salary Act which sets a base pay for judges with a review of that base every four years.

And then there’s the Adjustment Act which provides that judges may get an annual cost-of-living increase measured by the cost-of-living increase given to civil service employees under the Comparability Act, and the Adjustment Act increase goes into effect… if there is one… on October 1st of the year.

Now, the first year the Adjustment Act was in effect was 1975, and in October, 1975, civil service salaries were increased by an average of five percent pursuant to the Comparability Act.

And as a result, federal judges and other officials covered by the Adjustment Act received a like increase.

The events that led to these lawsuits began in the fall of 1976.

In October, 1976, the salaries of civil service employees were increased by an average of 4.8 percent under the Comparability Act.

On September 22, 1976, however, the House and Senate passed a bill which was signed by the President on October 1st providing that none of the funds appropriated in any statute could be used to pay the salary of any official covered by the Adjustment Act at a rate that exceeded the salary in effect for that official on September 30th, 1976.

In other words, this statute which we’ve referred to in this litigation as the 1976 Pay Act prevented the 1976 Adjustment Act increases from taking effect for federal judges and a number of other high level officials.

William H. Rehnquist:

Mr. Geller, what was the basis of the District of Court’s jurisdiction?

Kenneth Steven Geller:

The Tucker Act.

William H. Rehnquist:

Would the Government be in a better position here if the Tucker Act had been repealed or never been enacted?

Kenneth Steven Geller:

Well, there would be some question whether judges would have a right to sue because they’re claiming under the Compensation Clause of the Constitution.

Just like, for example, the Just Compensation Clause in the Fifth Amendment might well require that Congress provide some judicial remedy, but it’s certainly not an issue in this case.

We have not challenged the District Court’s jurisdiction.

It clearly falls under 28 U.S.C. 1346 (a)(2).

Now, in each of the next three years after 1976 Congress passed a separate pay act to limit or eliminate the anticipated Adjustment Act increase for that year.

In July 1977 Congress passed the 1977 Pay Act which provided that the cost-of-living increases that would have become effective in October, 1977, “shall not take effect”.

The reason Congress did this was because in March of 1977 the officials covered by the Adjustment Act had received their quadrennial salary increase pursuant to the Salary Act.

Federal judges, for example, had gotten a pay raise of almost 30 percent under the Salary Act in March, 1977, and there was substantial sentiment in Congress that high-ranking federal officials should not get two pay increases in the course of a single year.

William J. Brennan, Jr.:

Now, this deals with the 4.8 that might otherwise have become effective on October 1… what?

1976?

Kenneth Steven Geller:

Well, actually, I was just referring to the 1977 legislation which wiped out–

William J. Brennan, Jr.:

Well, the 29-whatever-that-percentage-was, that became effective when?

March of ’77?

Kenneth Steven Geller:

–That became… March of ’77, that’s right.

Now in October of 1977 civil service employees got a 7.2 percent increase under the Comparability Act.

William J. Brennan, Jr.:

Well, do we have any case here that involves the 4.8-whatever-that-percentage-was, effective in October of ’76, or is that–

Kenneth Steven Geller:

Yes, that is in this case.

That is Count 1 of the Will I.

William J. Brennan, Jr.:

–And you just said that the increase in 29-whatever-it-was that became effective in March of ’77–

Kenneth Steven Geller:

Right.

William J. Brennan, Jr.:

–what bearing did that have on the 4.8?

Kenneth Steven Geller:

That set a new base salary level for judges.

William J. Brennan, Jr.:

And in doing that did Congress supersede whatever the increase was, the 4.8?

Kenneth Steven Geller:

Well, no.

The only bearing that the 4.8 percent has in this litigation now is, if appellees are correct that Congress could not wipe out the 4.8 percent then the judges would be entitled to back pay for the period from October 1, 1976.

William J. Brennan, Jr.:

What you’re saying is, Congress meant to eliminate that 4.8 in light of the 29 that became effective in March, ’77?

Kenneth Steven Geller:

Well, what Congress meant to eliminate in light of the 30 percent increase judges got was the 7.2 percent salary increase–

William J. Brennan, Jr.:

That’s what I’m trying to get to.

Kenneth Steven Geller:

–Yes.

William J. Brennan, Jr.:

And it had no bearing on the 4.8?

Kenneth Steven Geller:

Only in the sense that the base salary had been paid.

William J. Brennan, Jr.:

No, what I’m trying to get at is, did Congress say anything in respect to the 29-point… that it was supersede any of the 4.8?

Kenneth Steven Geller:

No.

William J. Brennan, Jr.:

All right.

Kenneth Steven Geller:

But there are a number of statements in the legislative history that talk about superseding the 7.2 percent that was going to become effective in October of ’77 because it would have been two salary increases in one year.

Byron R. White:

Well, then, you don’t think, then, that that quadrennial increase was effective to wipe out any entitlement to any prior cost-of-living increases?

Kenneth Steven Geller:

Well, it only became effective in March, 1977.

What it does wipe out is any claim that judges have to a new base salary level based on the 4.8 percent, but what it doesn’t wipe out is back pay for the period October 1, 1976, to March, 1977.

Byron R. White:

If they were entitled to it?

Kenneth Steven Geller:

If they were entitled to it.

That’s what I’m saying.

Byron R. White:

I see.

Kenneth Steven Geller:

That’s right.

Kenneth Steven Geller:

As far as base salary levels are concerned–

Byron R. White:

I got it.

Kenneth Steven Geller:

–the only relevance it has to this lawsuit is the back pay issue.

Byron R. White:

So it did effect a permanent disentitlement to the 4.8 percent?

Kenneth Steven Geller:

As a continuing matter.

Byron R. White:

Yes, all right; fine.

William J. Brennan, Jr.:

Mr. Geller, let me get this clear.

You did just say that the 4.8, in any event, in light of the 29 percent that became effective in March, ’77, limited the 4.8 to the period from October 1, ’76, to March, ’77?

Kenneth Steven Geller:

That’s right.

That is the relevance in this lawsuit.

It’s simply a matter of back pay, it’s not a question of increasing base salary levels because that was accomplished in March, 1977, with the Salary Act increase.

Byron R. White:

Well, your brief doesn’t make this clear, but it’s… but that’s wholly consistent with your position, I must say.

Kenneth Steven Geller:

Just as if the current salary, the current quadrennial review process that’s now beginning will set a new salary level for judges, presumably, unless the President or Congress doesn’t go along with the recommendations.

It will set a new salary level for judges as of March or April, 1981, and therefore all of these prior pay acts will be relevant only in terms of back pay and not in terms of setting a new salary level for judges–

John Paul Stevens:

Provided that the new level is higher than the percentages involved?

Kenneth Steven Geller:

–Providing that it is, yes.

John Paul Stevens:

If it’s not, of course, then the issue will remain.

Kenneth Steven Geller:

That’s right.

John Paul Stevens:

All right.

Yet… Mr. Geller, in reviewing the fairly complicated statutory system under which judicial salaries are determined, did you mention the basic statute, 28 U.S.C. Section 135?

Kenneth Steven Geller:

Well, that just sets the base salary for district judges.

There’s a separate statute that sets the salary for each level of the Federal judiciary, Section 135 is for district judges, and what it does is, it has two components.

It says a base salary, plus, you know, the Adjustment Act increase the base salaries, the salary–

Potter Stewart:

“As adjusted, each judge”… and this is the district judge…

“shall receive a salary at an annual rate determined under the Federal Salary Act, as adjusted by the Executive Salary Cost-of-Living Adjustment Act. “

Kenneth Steven Geller:

–Right.

One is–

Potter Stewart:

That is the statutory salary that a judge receives.

Kenneth Steven Geller:

–Well, that is the statute that sets forth the components of a judge’s salary and it refers to other statutes.

It refers to the Federal Salary Act and it refers to the Adjustment Act.

Potter Stewart:

It says, “Each judge shall receive” that salary.

You didn’t mention that, did you?

Kenneth Steven Geller:

Well, I don’t even mention that because there’s a separate statute for each branch of the federal judiciary, and all it does is relate how all the other statutes work.

Potter Stewart:

Well, that’s all it does, but it does do that.

Kenneth Steven Geller:

Yes.

Well, there is a separate statute in that event for each judge.

Warren E. Burger:

That language is mandatory, is it not?

Kenneth Steven Geller:

That is the salary that a district judge gets as provided in Section 135.

Potter Stewart:

And then there’s a separate statute for circuit judges and–

Kenneth Steven Geller:

Circuit judges, Supreme Court Justices, and for other parts of the federal judiciary.

Potter Stewart:

–But each one is similar, or is it?

Kenneth Steven Geller:

That’s right.

The language is similar.

Well, just to finish up the statement of facts, in September of 1978 Congress eliminated a 5.5 percent pay raise for Adjustment Act employees that would have gone into effect on October 1st of that year.

And last year, on October 12, 1979, Congress reduced the Adjustment Act increase for fiscal year 1980 from 12.9 percent to 5.5 percent.

John Paul Stevens:

Mr. Geller, for a moment, on the September 30, ’78, statute, is that the only one of these statutes in which Congress expressly limited the effect of the statute to the then, to the year involved?

Kenneth Steven Geller:

No–

John Paul Stevens:

It says,

“No part of the fund appropriated hereby shall be used to pay salaries for this period– “

Is that language repeated in the other statutes or is it?

Kenneth Steven Geller:

–Yes.

Except for the… it’s repeated in all of the statutes except in the 1977 statute which is not part of an appropriations act at all and simply says that the October, 1977, Adjustment Act increases shall not take effect.

John Paul Stevens:

Each of the Acts by its terms applies only to one year.

Kenneth Steven Geller:

That’s right.

William J. Brennan, Jr.:

Now, is that the Act that was signed by the President late in the afternoon of October 1?

Kenneth Steven Geller:

No, I’m just talking about the 1979.

William J. Brennan, Jr.:

I know that.

I thought you mentioned also the ’77?

Kenneth Steven Geller:

No, the ’76 Act was signed on October 1st.

William J. Brennan, Jr.:

And was signed but… sometime later in the day of October 1st?

Kenneth Steven Geller:

Well, sometime on October 1st.

I don’t know what time of day it was signed.

Potter Stewart:

But it was substantially after midnight, or one minute after–

Kenneth Steven Geller:

I assume that it was not signed substantially after–

William J. Brennan, Jr.:

–And that presents a question about your–

Kenneth Steven Geller:

–There is a question–

William J. Brennan, Jr.:

–Under the diminution clause in there.

Kenneth Steven Geller:

–That’s correct.

There is a question which I would hope to get to a little bit later of what the effect is of the bills that took the… the Act that took effect on October 1st?

Byron R. White:

Well, Mr. Geller, as part of the facts… I take it this is part of the facts… on October 1, 1979, the Government seems to agree, at least in its brief, that the October 1 increase did go into effect–

Kenneth Steven Geller:

Yes.

Byron R. White:

–along with the increase that had been suspended for the prior year.

Kenneth Steven Geller:

That’s right.

Byron R. White:

So that it’s for a total of 12.9 percent–

Kenneth Steven Geller:

12.9 percent.

Byron R. White:

–did go into effect?

Kenneth Steven Geller:

Yes.

And there’s no question in this case about the judges’ entitlement to the 12.9 percent for the 12 days.

Byron R. White:

Or for any other part of the Executive Branch or not?

Kenneth Steven Geller:

Or for any other part of the Executive Branch although, just to complicate matters further for officials other than judges, salary doesn’t take effect on October 1st but on the first pay period after October 1st.

So that–

Byron R. White:

I see; I see.

I understand.

Kenneth Steven Geller:

–Appellees representing the classes of federal judges affected by these pay acts brought these actions under the Tucker Act in February, 1978, and October, 1979.

The first suit which we’ve referred to as Will I challenged the 1976 and 1977 Pay Acts as reducing judicial compensation in violation of the Compensation Clause.

In the second suit, which has been referred to as Will II, presented the identical challenge to the 1978 and 1979 Pay Acts.

The District Court agreed with appellees and declared all four statutes unconstitutional.

According to the District Court, once the Adjustment Act became law in 1975, then the right to an annual cost of living increase measured by the average cost-of-living adjustment given to civil servants under the Comparability Act became part of the judges’ compensation which may never thereafter be diminished or eliminated.

In addition, as I noted earlier, the district judge also concluded as an alternative holding that the Pay Acts were merely appropriations measures that refused to fund but did not wipe out the Adjustment Act increases for each of the four years in question.

The United States believes that each of these holdings is incorrect but before I discuss what we view as the errors in the District Court’s opinion, there are two procedural matters that the Court has directed the parties to address.

Kenneth Steven Geller:

The first is the question of jurisdiction.

The Court postponed consideration of the question of jurisdiction until the hearing on the merits, but we don’t think there’s any question that this Court has appellate jurisdiction under 28 U.S.C. 1252.

The District Court held unconstitutional several Acts of Congress in a civil action to which the United States is a party.

Hence, a direct appeal lies to this Court under Section 1252.

Byron R. White:

Well, did the District court have jurisdiction?

Kenneth Steven Geller:

It had jurisdiction under the Tucker Act.

Byron R. White:

Even if the judge was disqualified?

Kenneth Steven Geller:

Well, I’m now going to get to the question of his qualifications.

Byron R. White:

But let’s assume he was, though.

Kenneth Steven Geller:

Assuming he was disqualified, we don’t view the question of disqualification as jurisdictional in nature.

The District Court clearly had jurisdiction under the Tucker Act.

Byron R. White:

In which event we would have appellate jurisdiction?

Kenneth Steven Geller:

Exactly.

Byron R. White:

Even if we were disqualified?

Kenneth Steven Geller:

That is our view.

We don’t view the recusal statute as being jurisdictional in nature.

The court clearly has jurisdiction, although there may be a separate question as to which judge of that court should hear the case.

Now, as I said, a somewhat related question concerns the disqualification of the members of this Court and the District Court.

These cases obviously directly involve the pay of federal judges.

Moreover, each of the Justices of this Court is a member of the plaintiff classes certified by the district judge in Will I and Will II, and the District Judge was himself a member of the certified class in Will II.

Therefore, we believe it’s clear that the members of this Court and the District Judge technically have a disqualifying interest within the meaning of the judicial recusal statute, 28 U.S.C. 455.

Nonetheless, all the parties and amici agree that this is an appropriate instance for invoking the so-called rule of necessity.

Every currently sitting federal judge, whether or not a class member, has a direct and immediate financial interest in the outcome of these cases and would therefore seem to be equally disqualified under 28 U.S.C. 455 (b)(4).

In these circumstances we believe the Court as it did a half-century ago in the income tax cases can and should decide these appeals.

William H. Rehnquist:

If you were drawing a disqualification statute for judges, wouldn’t this be one of the very first things that you would consider, a case in which they were passing on their own salaries?

Kenneth Steven Geller:

Yes, and it is, I think clearly within the judicial recusal statute that… this situation.

Not only do the Justices of this Court have a financial interest in the outcome of these cases, but by virtue of the District Judge’s certification of the classes, each member of this Court is a party to the litigation, which is a separate disqualifying factor under the statute.

We don’t think there’s any dispute among the parties or amici that the judges of this Court technically are disqualified.

We think, however, it’s a clear case for invocation of the rule of necessity.

John Paul Stevens:

Mr. Geller, would you tell me your understanding of, if you had to state the rule.

John Paul Stevens:

What is the rule of necessity?

Kenneth Steven Geller:

My understanding is that when every judge is disqualified from hearing a case, then no judge is disqualified simply by virtue of the disqualifying factor.

I should add the obvious that if any Justice feels that he can’t personally sit on this case because he cannot be impartial, then that Justice individually should make the decision to disqualify himself.

But we don’t think that the Justices of this Court are disqualified simply because they fall within one of the disqualifying factors–

William J. Brennan, Jr.:

And this is not a matter of statutory construction, is it?

Kenneth Steven Geller:

–Well, I suppose there would be a separate question presented–

William J. Brennan, Jr.:

Does it appear that Congress ever addressed this question when they drafted that 455?

Kenneth Steven Geller:

–There is precious little discussion in the history of it.

William J. Brennan, Jr.:

And certainly, on the face of it, it’s flat and mandatory that–

Kenneth Steven Geller:

We think it would have been quite remarkable that Congress would have intended to abrogate the rule of necessity without saying so.

William J. Brennan, Jr.:

–Then you are suggesting we read in the rule of necessity?

Kenneth Steven Geller:

Yes.

We think that it survives.

William J. Brennan, Jr.:

Imply it or what?

Kenneth Steven Geller:

Well, there were previous judicial recusal statutes before Section 455 and the rule of necessity was applied to them.

We don’t think there’s anything in the legislative history or the language of–

William J. Brennan, Jr.:

Well, I gather you are saying then that this is a statutory construction question?

Kenneth Steven Geller:

–I think it is a common law rule which Congress has not abrogated.

Byron R. White:

And so we should say, except where the rule of necessity applies?

Kenneth Steven Geller:

Yes.

Byron R. White:

And add it on to the statute?

Kenneth Steven Geller:

Excuse me.

Again?

Byron R. White:

We should add on to the statute an exception?

Kenneth Steven Geller:

I think it’s a well recognized exception that was read into all the previous judicial recusal statutes, and, yes, I think the Court should do the same here.

Warren E. Burger:

If all the members of this Court were disqualified under 455, what would be the consequence in terms of the judgments that you’re asking to be reviewed?

Would they stand?

Kenneth Steven Geller:

It would depend, Mr. Chief Justice, on why the Court decided that the members of this Court were disqualified.

If the Court were to decide that the rule of necessity has been abrogated and that every federal judge now on the bench is equally disqualified and that no one can hear this case, then we think that the appropriate disposition would be for this Court to vacate the judgment of the District Court who was also equally disqualified.

Warren E. Burger:

Well, if we’re disqualified to sit, how can we decide anything?

Kenneth Steven Geller:

Well, I think under the same rationale that allows this Court to determine whether it has jurisdiction or even in cases where the Court clearly doesn’t have jurisdiction because the issue is moot.

For example, the Court sometimes sends the case back to have the judgment vacated even though technically the Court doesn’t have jurisdiction.

Now, however, I should add that–

Warren E. Burger:

You told us at the outset that this is not a matter of jurisdiction, I thought?

Kenneth Steven Geller:

–That’s correct, and why I think I’m consistent in saying that the Court would have the power to send the case back to the District Court with instructions to vacate that judgment.

It seems to us that if every judge is disqualified there’s no reason to leave that judgment outstanding.

However, there’s another possibility here which I should mention, and that is, the Members of this Court may feel that they are disqualified because they are parties to this litigation.

Now, not every federal judge now on the bench is a party to this litigation.

A judge who was appointed after October 12, 1979, would not be a member of any of the certified classes.

Now, 28 U.S.C. 2109 allows this Court in a case in which there is no quorum, because more than four Justices are disqualified, to remit the case to the appropriate circuit to be heard by a panel of that circuit, and finally determined.

So if this Court decides that the rule of necessity does apply but that the Justices of this Court have a special disqualification because they’re members of a class, then I suppose the appropriate disposition would be to send the case back to the 7th Circuit to be heard by a three-judge panel composed of judges who were appointed after October 12, 1979.

But nobody has suggested that.

But they would still have a stake in the case.

Kenneth Steven Geller:

They would still have a stake in the case but they wouldn’t have this additional disqualification.

Byron R. White:

They wouldn’t be parties.

Kenneth Steven Geller:

That’s right.

Byron R. White:

They wouldn’t be a party.

William J. Brennan, Jr.:

Well, it doesn’t matter, does it, if they have a stake in the case, I thought 455 was mandatory disqualification?

Kenneth Steven Geller:

That is our position, Mr. Justice Brennan.

That’s why we think this Court should decide the case.

But the Members of this Court have two disqualifications; there are members of the federal judiciary now who only have one disqualification.

If that is deemed relevant by this Court, then there is the option of sending it back to the 7th Circuit.

I’d like to turn, then, to the statutory basis for the District Court’s holding.

The court’s statutory determination is extremely important for two reasons.

First, if this Court agrees with the District Court that the appellees had a statutory right to their cost-of-living increases over the past four years, then there will be no need to reach the constitutional issues raised by the Pay Acts.

Second, the district judge’s statutory holding affects a great many federal employees other than judges.

If the District Court is correct as a matter of statutory construction, then not only judges but about 2,000 other federal employees covered by the Adjustment Act would have gotten salary raises in each of the last four years.

And, in addition, some 20,000 civil servants whose pay is subject to a statutory ceiling pegged to the lowest executive schedule salary level would also be entitled to receive back pay, because the ceiling would have been raised in each of the last four years.

These combined pay increases would total several hundred million dollars.

In light of these two important considerations, the District Court’s treatment of the statutory issue is somewhat remarkable.

Kenneth Steven Geller:

The issue is discussed in a single paragraph at the very end of its opinion in Will I.

The court merely states that none of the Pay Acts contains any language indicating that it was intended to be anything more than an appropriation statute.

But the 1977 Pay Act, at least, was not an appropriation statute at all, and while the other three Pay Acts were part of appropriations bills, this Court has made clear on several occasions that Congress if it wants to can suspend or repeal substantive legislation in an appropriations act.

John Paul Stevens:

Mr. Geller, you know, it’s a small point, but your opponents take issue with your use of the term “Pay Act”.

Is that a term that you just coined for purposes of litigation or does it have any history beyond that?

Kenneth Steven Geller:

It is a term that was coined for the purpose of litigation but not… it’s a convenient shorthand.

Each of these acts has a very long name.

John Paul Stevens:

Right.

I understand.

Kenneth Steven Geller:

We didn’t do it for any tactical litigation purpose, but it is something that we have been using since the–

John Paul Stevens:

That’s not a term Congress uses?

Kenneth Steven Geller:

–Not a term, although I think in some of those later statutes the term did start to work its way into the legislative history, but it’s not a term in the statute itself.

Anyway, as the Court said in Belknap, the whole question depends on the intention of Congress as to whether an appropriation statute was intended to amend or repeal substantive legislation.

Now, the District Court’s decision does not discuss the language, the legislative history, or the purpose of any of the Pay Acts.

We have in our brief set forth this legislative history in exhaustive detail, and I don’t think it would serve any purpose for me to repeat any of that history here, but I doubt that anyone can read the statements of the Members of the House and the Senate, statement after statement and Pay Act after Pay Act, without concluding that Congress unquestionably intended to prohibit the Adjustment Act increases from going into effect.

There are repeated references to a pay freeze or–

Byron R. White:

For that year–

Kenneth Steven Geller:

–For that year; that’s right.

William J. Brennan, Jr.:

–to which it was addressed.

Kenneth Steven Geller:

To which it was addressed; that’s correct.

There are repeated references to a pay freeze, or to a pay cap, or to a desire to supersede or rescind the cost of living increases for the year in question.

There’s virtually no evidence in the legislative record to the contrary.

In fact, because the whole purpose of the Pay Acts was to hold down the pay of high-ranking federal officials, largely as an anti-inflation measure, it would have defeated Congress’s express objectives if the Pay Acts had simply been limitations on expenditures.

What this would have meant is that Congress in four consecutive years merely wanted to withhold funds necessary to meet the Government’s acknowledged obligations under the Adjustment Act, but to leave those substantive obligations intact, knowing full well that those obligations could be enforced in Court.

Neither the district judge nor appellees have offered any plausible explanation why Congress would repeatedly have engaged in such a senseless and futile exercise.

Now, if this Court agrees that the Pay Acts were intended to be substantive legislation, then the question remains whether that legislation is constitutional.

The Compensation Clause analysis essentially involves two separate inquiries.

First, were judicial salaries diminished in the constitutional sense by the Pay Acts?

And second, if a diminishment occurred, was it the sort of reduction prohibited by Article III?

It’s the Government’s position that the 1976, 1977, and 1978 Pay Acts did not diminish appellees’ compensation because at the time these statutes were enacted, the annual cost-of-living adjustments allowed by the Adjustment Act had not yet gone into effect.

Potter Stewart:

Do I take it that you have implicitly conceded that the 1979 legislation did reduce the–

Kenneth Steven Geller:

Oh, yes; we’ve said that in the brief, that it’s a reduction in compensation there although there’s still–

Potter Stewart:

–There’s no question that it did.

Kenneth Steven Geller:

–a second question as to whether it’s constitutional.

William J. Brennan, Jr.:

Well, Mr. Geller, whatever the… is it 1977, the one that was not signed until late in the day–

Kenneth Steven Geller:

1976.

William J. Brennan, Jr.:

–’76?

Kenneth Steven Geller:

Yes.

William J. Brennan, Jr.:

What about that?

Was that in effect at midnight of October 1?

Kenneth Steven Geller:

The cases in this Court hold that the general rule in construing legislation is that the courts will not inquire into the time of day that the bill was signed, that it will be presumed to take effect as of the first moment of the day.

Now, appellees correctly point out that there is an exception to this rule; where substantial justice so requires, the courts will inquire into the fractions of the day.

Harry A. Blackmun:

That’s the Louisville case?

Kenneth Steven Geller:

That is one of the many cases–

John Paul Stevens:

And how to you respond to that one?

Kenneth Steven Geller:

–That’s right, Mr. Justice Blackmun.

We don’t think that this is a case in which substantial justice requires the Court to inquire into the time of day that the Act was passed.

It’s clear that Congress intended to pass the 1976 Pay Act before October 1st.

It passed both Houses of Congress on September 22.

The President didn’t sign it until October 1st only because no one really thought it was crucial that he do so.

Warren E. Burger:

When you speak of whether justice requires it… was that the term?

Kenneth Steven Geller:

“Substantial justice”.

Warren E. Burger:

“Substantial justice”.

–do you take into account the equities of the situation?

Kenneth Steven Geller:

I think that’s what the Court should take into account.

We think that appellees’ hypertechnical argument here does not entitle them to use of this exception to substantial justice.

Warren E. Burger:

Well, would the Court then be permitted to take into account that a United States district judge’s salary today is less than half by far of the purchasing power in terms of 1969 dollars?

Is that the kind of inequity?

Kenneth Steven Geller:

I don’t think so, Mr. Chief Justice.

Warren E. Burger:

Well, what kind?

Kenneth Steven Geller:

We’re not talking here about the base salaries that judges are entitled to.

Warren E. Burger:

No, but, you speak of equities.

What… I’m puzzled as to what kind of equities you have in mind if that isn’t one of them.

Kenneth Steven Geller:

Well, what I’m talking about, if the Court decides that the Congress can supersede Adjustment Act increases if it acts before those increases go into effect, and if it decides that those increases go into effect on October 1 of each year as the statute so requires, then it would seem to us not to require resort to the exception to the general rule in order to save the 1976 pay increases to judges.

John Paul Stevens:

Mr. Geller, is it not true that the general rule and its exception deal with how you construe what Congress intended to do.

It’s a construction of the statute rather than its effect?

And it’s no question here, they intended that the statute would be effective as of 12:01 a.m.–

Kenneth Steven Geller:

There’s no question about it.

John Paul Stevens:

–And the question is, whether the increase in salary having been in effect for several hours, does Article III of the Constitution prevent the President and the Congress from then rescinding that, what had become effective?

And it is true that, say, 9 o’clock in the morning there was a different salary rate in effect, wasn’t there?

Kenneth Steven Geller:

In some metaphysical sense.

John Paul Stevens:

At 9 o’clock in the morning, if you were then asked what the salary was, you would have to have said, as of this moment the 4.8 percent has gone into effect, wouldn’t you?

Kenneth Steven Geller:

I think that’s true, and at 5 o’clock–

John Paul Stevens:

And so even if, later on, unambiguously, Congress said, we intend to cut it back as of 12:01 a.m., then the question is, can they do that constitutionally?

None of the cases you’ve cited deal with a question remotely like this, do they?

Kenneth Steven Geller:

–Well, they deal with questions–

John Paul Stevens:

Of what the intent of the statute was.

Kenneth Steven Geller:

–It was important to determine when an Act took effect.

The Court has said that the test is that it takes effect as of the first moment of the day unless substantial justice–

John Paul Stevens:

Purely as a matter of statutory construction, isn’t that correct?

Kenneth Steven Geller:

–Well, some of those cases, I believe, did involve constitutional questions.

John Paul Stevens:

Which one?

Kenneth Steven Geller:

I would have to, while my opponent is speaking give you the names, but they involve questions where penalties were imposed by statutes–

John Paul Stevens:

Well, the ones cited in the footnote to your brief all dealt with the question of statutory construction.

Harry A. Blackmun:

Maybe there others that haven’t come to our attention.

Mr. Geller, it isn’t in the record, of course, but didn’t exactly the same thing happen two weeks ago?

Kenneth Steven Geller:

–The 1980 Pay Act was passed on October 1st, that’s correct.

Well, that’s after–

Byron R. White:

Was it passed or signed, or both?

Kenneth Steven Geller:

–It was both.

Byron R. White:

But that’s not true of the ’76?

Kenneth Steven Geller:

That’s right.

The ’76 Pay Act was passed well before October 1st.

Byron R. White:

If the established rule was, as you argue, that an act is effective on the day it’s signed, but retroactive to the previous midnight, I suppose the President might have thought October 1 was the last day he could sign it.

Kenneth Steven Geller:

I think that that’s correct.

I think the President this year, and Congress this year, could have thought they could act until October 1, based on the position that Government was taking in these cases.

Appellees contend that–

John Paul Stevens:

Of course, on that point, they also thought in ’79 that they could wait 12 days, didn’t they?

Kenneth Steven Geller:

–No, I don’t think that there’s any question; certainly there’s no question–

John Paul Stevens:

You think they deliberately acted in an unconstitutional manner?

Kenneth Steven Geller:

–No, I don’t think that they intended that the 1979 Pay Act apply to the period between October 1 and October 11.

John Paul Stevens:

Well, what about the provision of the statute, if anyone takes the 12.9 percent, there’s a waiver of anything… if he takes 5.5 percent, there’s a waiver of that right?

Kenneth Steven Geller:

That was meant to imply, I think, prospectively.

John Paul Stevens:

Does it say so?

Kenneth Steven Geller:

Well, there are… it is not easy to understand what Congress thought it was doing in the 1979 Pay Act by adding in this waiver language, there’s not much legislative history either, but there are certain statements on the floor by Representative Whitten in which, what he says is, we intend the 1979 Pay Act, like the previous three Pay Acts, to apply substantively.

However, there is some question in light of Judge Roszkowski’s decision in the Will litigation as to whether we can do that.

I don’t think there should have been any question on the part of Congress, but Representative Whitten says there may be some question as to whether we can act substantively in an appropriations measure.

And therefore, let’s accomplish that purpose essentially by means of a settlement.

Anyone who after today takes the 5.5 percent will be waiving his right to the 12.9 percent.

But I don’t think there is any talk about the period retroactively.

John Paul Stevens:

If he took the 5.5 percent sometime later, would he retain or give up the right to 12.9 percent for the 12 days when it was in effect?

Kenneth Steven Geller:

Well, we have taken the position that it’s not clear from the legislative history.

We have always taken the position that appellees have the right–

John Paul Stevens:

Yes, but these appellees… none of these appellees took the 5.5 percent.

I wonder what would the Government’s position be with respect to the consequences of taking the 5.5 percent with respect to the right to the 12.9 percent for 12 days?

Kenneth Steven Geller:

–For the 12 days, they would not be waiving their right to the 12.9 percent by taking 5.5 percent.

There’s no question in this litigation as to the salary level for that 11 days, for appellees.

It’s 12.9 percent above the previous base salary.

I do want to discuss the constitutional point a little bit more but I notice that I’m almost out of time and I do want to save some time for rebuttal, so unless the Court has any questions I’d like to reserve the balance of my time.

Byron R. White:

But your basic constitutional argument is that Congress has the power to lower the salaries of federal judges along with the salaries of other government officials as long as you can’t characterize the reduction as discriminatory and as aimed at judges in a way that might threaten their independence.

Kenneth Steven Geller:

That is our argument, if the Court agrees that the–

Byron R. White:

If we agree with you otherwise, we then must face the constitutional issue for the–

Kenneth Steven Geller:

–Well, if the Court agrees that in ’76, ’77, and ’78 Congress acted to withdraw the Adjustment Act increases before they went into effect and that that is not a diminution, then you don’t have to reach–

Byron R. White:

–I understand that, but if we agree with you?

Kenneth Steven Geller:

–No.

If you agree with my opponents, that–

Byron R. White:

No, if I agree with you, with the Government, as to the effect of all the Acts, just the way you argue, then we must face the constitutional issue on reduction.

Kenneth Steven Geller:

–Only on the ’79 Act.

Only as to the ’79 Act, if you agree with our opponents–

Byron R. White:

I understand that.

I understand that we must… for whatever we face it, we have to face it.

Kenneth Steven Geller:

–As to the ’79 Act at least, that’s correct.

Byron R. White:

Well, and then, you’ve decided it.

Kenneth Steven Geller:

And our position is, as you correctly stated, Justice White, that the correct test, the test that this Court, I think, set forth in O’Malley against Woodrough, is whether the statute is meant to discriminate against Article III judges or to undermine their independence.

Byron R. White:

And you say that if it is not, the Act is constitutional?

Kenneth Steven Geller:

Does not violate the Compensation Clause in the–

Byron R. White:

And you think that that’s the power Congress was asserting?

On October 12, after the pay increases had gone into effect–

Kenneth Steven Geller:

–We think that–

Byron R. White:

–they thought they had reduced the salaries, at that time?

Kenneth Steven Geller:

–They clearly thought they were reducing salaries prospectively, and we think that that was constitutional.

Potter Stewart:

Well, there’s a statutory question there, isn’t there?

That’s the issue?

Kenneth Steven Geller:

Well, there’s a statutory question as to whether the ’79 Act applies to the judges at all.

Potter Stewart:

You say it’s there, but that’s an issue in this case.

That’s right.

Kenneth Steven Geller:

That’s correct.

William J. Brennan, Jr.:

That’s right.

Now, on the constitutional argument, those of us who don’t agree with you as to when the ’76 increase became effective and think it did become effective at midnight, we also–

Kenneth Steven Geller:

Then you have–

William J. Brennan, Jr.:

–have to raise the same constitutional question as we have for ’79.

Kenneth Steven Geller:

–That is correct.

In ’76 and ’79, at the very least.

Thank you.

Warren E. Burger:

Mr. Forde.

Kevin M. Forde:

Your Honors, may it please the Court:

There won’t be divided argument.

We appreciate the order the Court entered, graciously granting that permission but we have concluded that the comments can be made accurately… accurately and appropriately by counsel.

The point we–

William J. Brennan, Jr.:

I’m having a little difficulty hearing you.

Kevin M. Forde:

–I’m sorry, Justice Brennan.

The point that we desire to make and the explanation that we think we owe the American people if not the Court in an unusual case like this, a case brought by judges in federal courts, is that it’s their duty to bring such a case.

This Court has said so in the O’Donoghue decisions and in other cases.

The American Bar Association canons of ethics impose such a duty upon the judiciary, and–

William H. Rehnquist:

What canon of ethics imposes a duty on the judiciary to file a suit urging other judges to raise their salary?

Kevin M. Forde:

–Canon 1 of the American Bar Association Canons of Judicial Ethics says it’s the responsibility of a judge to preserve the independence of the judiciary.

This case involves the independence of the judiciary.

I think that… and this raises exactly the point that we attempt to make.

While it’s a case that does involve judges’ pay, judges like Judges Campbell and Will, for example, would not have filed a lawsuit in a federal court for the comparatively few dollars that are involved in this case.

But it in their opinion presents an issue of critical constitutional moment that must be decided by this Court, because they believe that if Congress can do this… at the time they filed the suit it was only two years.

They feared they would attempt to do it again, and in fact their fears have been proven by history.

Now they’ve done it five years in a row.

They feared that ultimately the Solicitor General or the Department of Justice may take some position, for example, that Congress can do whatever they want to judges’ salaries so long as they treat others the same way.

And such, other, such argument, that seems to be completely in contradiction to Article III.

William H. Rehnquist:

Yet the Disqualification Act requires a judge to disqualify himself if he owns one share of stock in a corporation that is litigated before the Court.

Kevin M. Forde:

That’s correct.

There’s an exception to the disqualification statute in the rule of necessity.

The rule of necessity… we agree fully with the Solicitor General on this point… the rule of necessity has been in effect as long as we have know it.

We’ve cited cases in this Court in these appeals.

We’ve cited cases and referred the Court to the briefs in the Atkins case.

Kevin M. Forde:

And as long as federal courts have been sitting, there has been a rule of necessity.

There is no indication in the legislative history of this disqualification statute or any other disqualification statute, that Congress intended to change that.

And, in fact, there is testimony in legislative history before the Congress in adopting this disqualification statute that they intended to preserve the rule of necessity.

So there is no question but that any judge, including the judges of this Court, are disqualified in this appeal or that the district judge or any other district or circuit judge is disqualified from hearing these cases.

Potter Stewart:

Now, and what is the rule of necessity?

Briefly, it is that if every judge is disqualified, then nobody is disqualified.

Kevin M. Forde:

If every judge is disqualified, then nobody is disqualified.

Potter Stewart:

It wouldn’t apply, for example, if four members of this Court were for some reason or another disqualified but five were not?

Kevin M. Forde:

It wouldn’t apply.

Potter Stewart:

This Court couldn’t act because there wouldn’t be a quorum, but it wouldn’t be applicable there, would it?

Kevin M. Forde:

I don’t know; that’s an interesting question.

I don’t know the answer to it.

Potter Stewart:

Well, your rule, as I’ve phrased it, would not be applicable, which is that the rule of necessity is applicable only if all judges are disqualified.

Kevin M. Forde:

I think there is an instance, Justice Stewart, where, if my recollection is correct, Chief Justice Stone invoked the rule by implication, at least, because the Court couldn’t get a quorum.

And I think the Government cited it either in this case or the Atkins.

So I would read the rule of necessity as applying if it’s necessary to get a quorum.

Potter Stewart:

But in any event, in this case, every federal judge is for one reason or two reasons disqualified?

Kevin M. Forde:

There’s no question about that.

And there is no other place… wherever the case would be sent, there is no judge, even if he’s appointed tomorrow, who wouldn’t have an interest in the outcome of this case.

Right.

William H. Rehnquist:

Yes, but the language in Evans v. Gore, which is relied on in the Court of Claims opinion and so forth, was rendered at a time when the disqualification statute didn’t apply to Supreme Court Justices, so it was really dicta, wasn’t it?

Kevin M. Forde:

Well, it might have been dicta but it’s sound law.

The rule of necessity has been applied since 1300 or 1400.

And I think what the Evans Court was saying is just what the long established law is.

If you want to treat it as dicta, then today is the time to decide that issue, which has to be decided, and I submit has to be decided the way both we and the Solicitor General suggest it must be decided.

The result is chaos.

The contrary would be chaos.

The contrary would mean that if Congress passed a statute tomorrow saying that all judges of this Court have to resign in five years, there’s no one who could challenge it.

William H. Rehnquist:

Well, the other result is not particularly appealing either, is it?

Kevin M. Forde:

Oh, it’s not appealing, but when you look at the alternative it’s not that difficult, in my judgment.

Kevin M. Forde:

The point I was starting to make is, we feel we owe an explanation to the American people as to why federal judges sue in federal courts.

The fact of the matter is they have to because there’s no other place to go and they had an oath, we felt, part of their oath of office, to bring the case.

Judge Roszkowski had an oath of office to decide the case, and I think you’re in the same boat.

Byron R. White:

Do you think you could have brought this case and had a judgment if you’d have sued Mr. Foley, the head of the Administrative Office?

Would there have been a case or controversy between this class of judges and Mr. Foley?

Could you have proceeded on that basis rather than against the United States?

Kevin M. Forde:

We thought not, Your Honor.

Byron R. White:

Why not?

Kevin M. Forde:

We thought–

Byron R. White:

I know you decided not to, but I’m… for what–

Kevin M. Forde:

–We thought not, because we thought that we were suing under the Tucker Act and that says you sue the United States–

Byron R. White:

–I didn’t ask… this isn’t what I asked you.

Kevin M. Forde:

–Well, let me get–

Byron R. White:

Could you have sued Mr. Foley and stayed in court on it?

Kevin M. Forde:

–It wouldn’t have… if your question suggests–

Byron R. White:

I want to know whether you could have obtained in a suit against him a declaration of unconstitutionality or constitutionality of these statutes, or have the statutes construed?

After all, Mr. Foley turned around and brought a suit himself.

Kevin M. Forde:

–I don’t know the answer, Justice White.

I know this–

Byron R. White:

Well, what if the answer was, yes?

Kevin M. Forde:

–You’re addressing it to solve the disqualification question?

Byron R. White:

Yes, I am.

Kevin M. Forde:

It would have no effect on that.

Byron R. White:

I’m addressing the rule of necessity.

Kevin M. Forde:

It would have had no effect on it because if we sued Mr. Foley instead of the United States, a federal judge having an interest in the case would have to decide it.

It doesn’t make any difference who the parties are.

The fact of the matter is–

Byron R. White:

Why would a federal judge have to decide it?

Kevin M. Forde:

–Because it’s a case brought in, it has to be brought in the federal courts.

Byron R. White:

Why?

Kevin M. Forde:

I don’t know of any other forum to raise the constitutional question.

Byron R. White:

Why not?

I mean, state courts hear federal question cases all the time.

Kevin M. Forde:

We know of no jurisdictional basis for bringing this case in a state court.

William H. Rehnquist:

Well, couldn’t the Circuit Court of Cook County have adjudicated this case?

Kevin M. Forde:

No.

William H. Rehnquist:

Why not?

Kevin M. Forde:

You can’t sue the United States in the Circuit Court of Cook County.

Byron R. White:

I’m asking, suing Mr. Foley?

Kevin M. Forde:

I don’t know if we could have gotten the relief against Mr. Foley.

Byron R. White:

Well, how can you say then that the rule of necessity applies if there were some judges in the United States who could hear the case?

Kevin M. Forde:

I think we could–

Byron R. White:

After all, it’s been argued, and certainly some state courts have entertained 1983 suits.

Kevin M. Forde:

–This isn’t a 1983 case.

Byron R. White:

I know it is not a 1983 case but I’m just suggesting to you that state courts decide federal questions all the time.

Kevin M. Forde:

I know of no basis upon which we could have obtained the relief that we sought in this case in any state courts.

Harry A. Blackmun:

Well, what are you saying?

That you couldn’t get personal jurisdiction over Mr. Foley?

Kevin M. Forde:

That may have been a problem.

I simply don’t know of any basis upon which we could sue him.

I think also the point is that suits against officials are deemed suits against the United States.

Potter Stewart:

Well, in any event, in this case there’s no question about the fact that in this case, which is the case you did bring, every federal judge in the United States has got a financial interest.

Kevin M. Forde:

That’s right.

I believe, then, I’ve made the point why we felt this case had to be brought, why the plaintiffs felt this case had to be brought.

I’d like next to address the arguments that are raised.

The most important point, I think, that has to be discussed is the contention of the Solicitor General and the Department of Justice in these cases that a judge cannot prove a violation of Article III, Section 1, without showing, proving discrimination.

I guess this takes us to to where the statutes are, what the Constitution provides.

The Constitution provides, in very unequivocal terms, that a judge is to receive a compensation which shall not be diminished.

Mr. Geller opened his comments by saying that these were complex statutes.

These are about as simple and unequivocal as statutes as appear on the books.

Kevin M. Forde:

Not a one of them exceeds more than a few lines that are relevant here.

Section 135 provides a salary for a district judge.

The language of the other statutes for other judges are in the same language.

One-thirty-five provides that a district judge shall receive a salary at a rate determined under the Salary Act, as has been discussed, as adjusted by the Adjustment Act.

The Salary Act, of course, is the provision for the quadrennial raises on those few occasions that Congress permits them to go ahead.

And I might add that the system has now been changed so that it requires an affirmative vote in both houses before a raise can go into effect under the Salary Act.

But the Adjustment Act, which is the principal act at issue here, provides in very unequivocal terms… and the relevant portions are again about two lines long… it provides that for each fiscal year judges’ salaries shall be adjusted in an amount equal to the percentage adjustment granted general schedule employees.

Incidentally, none of the statutes that have been referred to that are intended to prevent that adjustment, including the one adopted in July, 1977, ever mention any intent to repeal or modify or amend the rights under the Adjustment Act.

The Adjustment Act applies to all executive level employees except with respect to judges.

That section says, it can never be downward.

There was a question earlier about whether the adjustment under the Comparability Act can be a downward adjustment–

Byron R. White:

It can, as to other employees.

Kevin M. Forde:

–As to other employees, there can be a downward adjustment.

As to judges, there never can be.

Until these cases were brought and until this recent history by Congress, the Compensation Clause has always been honored by Congress.

Even in the Great Depression when the salaries of other federal employees were reduced and reduced and reduced for good reason, Congress never tampered with judges’ pay.

Now, there were income tax cases.

Atkins involved a question of whether judges who were suffering from inflation were entitled to an increase because they weren’t receiving compensation, in real dollars, the same as prior years.

But when it come to the basic salary statutes, 28 U.S.C. 135 and the prior statutes like that, Congress never made any attempt to tamper with those statutes.

The only thing that came anywhere near it was the Booth case, which we decided, and that was… and there they attempted to cut the pay of a retired judge.

And the Department of Justice said, in that case a retired judge is not an Article III judge.

This Court, the Supreme Court, the Court at that time, decided that he was an Article III judge.

The Solicitor General in that case said, if he is an Article III judge, we concede that his compensation may not be cut… even in this time of depression.

William H. Rehnquist:

When you say compensation, then, you’re talking about United States dollars, in effect?

Kevin M. Forde:

No, in this case we are talking about the salaries set by the salary acts, the Salary Act, the Adjustment Act, and 28 U.S.C. Section 135 for judges.

That is a judge’s pay, and it is our position that that may not be reduced.

William H. Rehnquist:

Okay, but what if the Congress decided that the Court would only be allocated one car, instead of two or three or whatever it has, next year.

And–

Kevin M. Forde:

Or parking space?

William H. Rehnquist:

–Or parking space.

William H. Rehnquist:

Would that be called diminution of compensation?

Kevin M. Forde:

I don’t know.

There are a number of things like that you could explore.

I don’t know how far compensation goes.

I know it includes at least this much, the salary of a judge as provided by the Salary Act and Adjustment Act and 28 U.S.C. 135.

How much farther it goes isn’t before the Court today.

But it’s certainly our reading of the word compensation, as an academic inquiry, would indicate, me to believe, that it’s much broader than just that.

Byron R. White:

Under the Comparability Act, though, the report is to the President and then the President makes a recommendation to Congress?

Kevin M. Forde:

That’s right.

Byron R. White:

And then either house of Congress can disapprove it?

Kevin M. Forde:

They can, but the result of their disapproval–

Byron R. White:

Is it goes back to the President.

Kevin M. Forde:

–Is, it goes back to the President or, automatically, accepts the report of the President’s agent.

They get a… the general schedule employees–

Byron R. White:

You mean Congress… under the terms of the Comparability Act, you are asserting Congress has no power to keep a recommended increase from going into effect?

Kevin M. Forde:

–That’s right.

They can reject the President’s, but the effect of their rejection of the President would be to put into effect the higher recommendation of the President’s agent.

In other words, like this year, the President’s agent said that the appropriate adjustment for federal employees would be 13-some percent, as I recall.

1980.

Byron R. White:

Well, what if the President doesn’t take the recommendation of his agent?

Kevin M. Forde:

He didn’t.

He said, 9.1.

Byron R. White:

All right.

And so say he… say the agent recommends 13 percent, the President comes in with ten.

Kevin M. Forde:

Yes.

Byron R. White:

Congress rejects it.

The Government’s brief says,

“In that event the President must again consider the report of his agent and adjust the rates of pay in accordance with the principles of comparability. “

Kevin M. Forde:

Yes.

What they’re saying is–

Byron R. White:

All right, suppose he does, and the Congress rejects it again?

Kevin M. Forde:

–I don’t know.

I don’t think they get two turns.

My understanding of the way that Act works… for example, this year, Justice White, they recommended 13 percent, the President recommended nine.

If either house of Congress rejected it within 30 days, the net effect would be the 13 percent would have gone into effect.

Byron R. White:

Well, that just can’t be, can it?

Kevin M. Forde:

I think that’s the statute.

In discussing the discrimination argument, we left off on the discussion of the Booth case.

The Government is arguing here essentially that judges have an equal protection claim and all I can say on that point is, if you read the debates, there is absolutely no question that the framers of the Constitution were saying that a judge’s pay may not be reduced.

The language of Hamilton that his circumstance should never be less, there just are reams of history on the point, and they all seem to be clearly talking about you can never cut a judge’s pay.

If they meant that you could never cut a judge’s pay, or that you could cut a judge’s pay so long as you also cut the pay of congressmen and ambassadors, then they wouldn’t have included in the language that they did.

In fact they specifically considered those points.

In Article I they provided that Congress can set its pay and the pay of other federal employees any way it wants, upward or downward.

And Article II, it says with respect to the President, you cannot cut his pay.

Article III, with respect to the judiciary, the other great branch of government, you cannot cut their pay.

So the Constitution is exactly the opposite of the argument that you’d have to prove discrimination.

I think the point ought to be made, too, in this case we can’t prove discrimination.

We have worked on these issues for years.

I can’t imagine a case where you can prove discrimination.

And the history… or, the congressional motivation… the history of the Compensation Clause is that Congress, or that the framers wanted to remove even the threat of such a confrontation where judges would be–

Byron R. White:

One reason, perhaps, for not being able to prove discrimination is that there isn’t any.

Kevin M. Forde:

–There isn’t any?

I don’t know if there is or there isn’t, Justice White.

I know that–

Byron R. White:

I know but one reason why you might not be able to prove it is that there isn’t any.

Kevin M. Forde:

–I don’t know if there is or there isn’t but we can’t prove it.

Byron R. White:

Well, that’s one of the… nevertheless, it’s one of the reasons.

Suppose that the Government… suppose Congress reduced the salaries of every government employee in the United States, including judges.

Now, it may be you couldn’t prove discrimination because there just–

Kevin M. Forde:

Well, that’s right.

Byron R. White:

–It’d be impossible.

There isn’t any.

Kevin M. Forde:

In the Depression there was no question that even when they attempted to do it with Judge Booth, there wasn’t any discrimination, there was no malice.

They wanted to cut federal employees’ salaries to save money.

There was no question of discrimination.

Harry A. Blackmun:

Well, I was a law clerk in 1933.

Four months after I started my salary was reduced and my judge whose salary was not affected never let me forget it.

And I thought it was discriminatory.

Kevin M. Forde:

I’d point out that the concerns raised by the friends of the court briefs, including that of the American Bar Association, which describes the argument of the Solicitor General here as a novel concept, without support in history or authority which would completely undermine the Compensation Clause.

But, in effect, with respect to the discrimination argument, if the Court agrees with us that it is not a necessary element to prove discrimination and that in fact the Compensation Clause means exactly what it says, then we believe the Court must affirm two counts of the judgments below, without further discussion.

Those are the events of October 12, 1979, and also October 1, 1976.

We can juggle back and forth about the occurrence on October 1, 1976, the relation-back theory.

There is no question about it.

When a judge went to work on October 1, 1976, a district judge who was making–

William J. Brennan, Jr.:

Would you agree, though, that the judges’ recovery is limited to the period October 1, ’76, to March ’77, when the–

Kevin M. Forde:

–Yes.

Yes, it is.

Sure, because his salary went from $42,000 to $44,000 on October 1, 1976, a district judge.

And then, on March 1, 1977, it went to $54,500, as I recall.

So that eliminated that.

The claim ends March 1.

William J. Brennan, Jr.:

–After March ’77?

Kevin M. Forde:

Yes.

The claim ends at that time.

The result of the Court’s decision, we also agree with the Solicitor General that the result of the Court’s decision on the October 1, 1976, will necessarily govern the ultimate disposition of the case, which hasn’t been filed, but October 1, 1980, the circumstances are identical.

William J. Brennan, Jr.:

Haven’t we enough without that?

Kevin M. Forde:

I hope so, Your Honor.

I certainly hope so.

With respect to the other two counts, the question that is before the Court, the constitutional question, is when does the right to this adjustment mature?

We submit, very respectfully, that it matured on the effective date of the Adjustment Act.

Kevin M. Forde:

The statute… getting back to one of the first points made… the statute is clear and unequivocal.

It says that the salary shall, he shall receive a salary as adjusted by the Adjustment Act.

In the O’Donoghue, the O’Donoghue decision which we’ve cited in our briefs and it’s discussed in both briefs, the Supreme Court stated that it condemned as in violation of Article III

“all which by their necessary operation and effect withhold or take from the judge a part of that which has been promised by law for his services. “

Now, we think that any judge ascending to the bench, any person ascending to the bench, any judge sitting on the bench reading the Salary Act and the Adjustment Act and 28 U.S.C. 135 would take those to mean that those are a part of what has been promised by law for his services.

John Paul Stevens:

Mr. Forde, if you take the view that the right granted by the Adjustment Act to a future adjustment upward in salary is compensation within the meaning of the Compensation Clause, does it follow that Congress would not have the power to repeal the adjustment?

Kevin M. Forde:

No.

I submit, Justice Stevens, they could repeal the Adjustment Act, but they would have to make a one-line amendment to the Comparability Act and say, “and judges too”.

Judges have been promised, under the Adjustment Act, the same cost of living adjustment granted clerk-typists and others covered by the General Schedules.

And as long as clerk-typists and other employees under the General Schedule receive a cost-of-living adjustment, judges are entitled to a cost-of-living adjustment.

John Paul Stevens:

That is, pursuant to the Adjustment Act?

Kevin M. Forde:

Pursuant to the Adjustment Act.

John Paul Stevens:

But then, I’m not quite clear on how they could constitutionally repeal the Adjustment Act.

In fact, I thought in the footnote it says they could repeal the Comparability Act but could not repeal the Adjustment Act.

Kevin M. Forde:

Oh, no, our theory in this case, as we read that statute, the Adjustment Act says a judge shall receive an adjustment in the same amount–

John Paul Stevens:

I understand.

Kevin M. Forde:

–as the General Schedule.

So long as there is an adjustment for the General Schedule, there must be an adjustment–

John Paul Stevens:

If the Adjustment Act is in effect.

But I’m asking you, consistently with the Constitution, could Congress repeat the Adjustment Act?

The Government says–

Kevin M. Forde:

–No.

John Paul Stevens:

–You say, no?

Kevin M. Forde:

No.

William H. Rehnquist:

Could Congress repeal the Tucker Act?

Kevin M. Forde:

Certainly.

William H. Rehnquist:

Then, don’t you run into a real political–

Kevin M. Forde:

No.

William H. Rehnquist:

–or a constitutional collision between the diminution provisions of Article III and the provision of Article I that no money shall be drawn from the Treasury save by appropriation by Congress?

Kevin M. Forde:

I don’t know the answer to that.

Kevin M. Forde:

I know that it has to be in a forum for a claim like this.

William H. Rehnquist:

Why does there have to be a forum for every conceivable claim?

Kevin M. Forde:

Well, I don’t think that the Founders of the Constitution would have wasted all that time putting together something, the Compensation Clause and Article III, which was intended to have three branches of government, of equal power and standing, if one branch could do nothing about enforcing it.

It just doesn’t make sense.

William H. Rehnquist:

Well, Hamilton in Federalist 78 refers to the judiciary as the weakest branch, because it has neither the power of the purse nor the sword.

Byron R. White:

Well, you would be satisfied, I suppose, without having a suit for the money, do you think that you would win enough if you had a judgment of unconstitutionality?

Kevin M. Forde:

Yes.

Very much so.

It’s much more important to have that determination.

John Paul Stevens:

And you’d have no objection if after the case is decided Congress passed another statute and said, we will not appropriate any funds to pay the judgment under the Will litigation.

Kevin M. Forde:

I didn’t say I wouldn’t have any objection.

I said I would go home happy if this Court ruled from the Bench today that as a matter of constitutional right you’re entitled to an adjustment.

John Paul Stevens:

Would you still be happy if Congress passed the statute I just suggested?

Would they have constitutional power to do that?

Kevin M. Forde:

Let me put it this way.

Let me… I don’t know, but let me put it this way.

If there were an offer to compromise this case on that basis, that we would give up the claim for back pay in return for an acknowledgement by the Solicitor General of our constitutional right.

I am sure I would have no problem selling that proposition on my clients.

John Paul Stevens:

Well, I’m not really discussing settlement, I’m discussing the question whether in the last analysis your argument is sound, that the framers of the Constitution did not in fact give the ultimate power of the purse to Congress, and if Congress wanted to act, say that Congress firmly believes that your opponent’s constitutional argument is correct, what would prevent Congress from saying, well, we’re just not going to appropriate the money to pay that judgment, because the judgment is not in accordance with our views of the Constitution?

Kevin M. Forde:

Well, when they gave Congress the power of the purse, they put some strings on the purse.

There’s some limitations.

John Paul Stevens:

Yes, but one of the limitations is not the power in judges to write checks.

Kevin M. Forde:

Well, but it’s clear, if you read the Federalist, it’s clear that they said, Congress… this is their comments on what they wrote,

“Congress has the duty to provide for judges’ compensation at stated times and they can never make his circumstance for the worse. “

Now, those are limitations on Congress.

Potter Stewart:

The same as the Condemnation Clause.

The same as the Condemnation Clause… the Federal Government couldn’t appropriate property and then have Congress say, well, we think that the court that held the owner of that property was entitled to just compensation was simply mistaken.

We’re not going to appropriate any money.

Kevin M. Forde:

That’s right.

Warren E. Burger:

But the solution there would be that the property would go back to the owner, the original owner, would it not?

Kevin M. Forde:

I don’t know the remedy there, or the remedy here, but I know what the result has to be.

Warren E. Burger:

The person in the condemnation case… I’ll put it as a question… could he go out and levy on the White House or execute his judgment?

I wouldn’t think so, would you?

Kevin M. Forde:

I don’t think so, no, sir.

Warren E. Burger:

So, the taking would be declared by the court to be void at some point if Congress didn’t pay the constitutionally required compensation.

Is that not the solution?

Kevin M. Forde:

I don’t think we’re going to have any of those problems in this case.

The judgments are affirmed.

I fully believe they’re going to be honored.

Potter Stewart:

Following up my brother Stevens’ earlier question to you about whether or not in your submission Congress could repeal the Adjustment Act, let me ask you this question.

Could Congress now amend 28 U.S.C. 135 and say that the salary of district judges shall be $55,000 per annum, which would not be a reduction or $65,000 per annum, to sweep away any questions?

Just amend the present 28 U.S.C. 135 to so provide.

Kevin M. Forde:

I believe not, Your Honor.

I believe there’s… the right to a cost-of-living adjustment is a component of a judge’s salary, and so long as there are adjustments, comparability adjustments for General Schedule employees then judges have a right to that cost-of-living adjustment.

Now there are ways they could resolve the problem by giving a higher rate and say anyone who accepts it waives any claims under the Adjustment Act or something like that.

That’s in fact how they resolved one of the state court cases that… I think it was the Delaware cases–

Potter Stewart:

Waiver.

Kevin M. Forde:

–This was a waiver… right.

They gave a higher rate than the court had ordered adjusted and then they said, anyone who accepts this–

Potter Stewart:

Anybody who takes that rate waives any claim under the Constitution.

Kevin M. Forde:

–waives any future claims.

And of course, anyone not on the bench never had a claim, so that’s how they resolved this dilemma.

There are many ways to resolve the mechanics.

Potter Stewart:

But in answer to my question, your answer is, no?

Kevin M. Forde:

My answer is, no.

The Government’s… I’d like to make one or two more points on the Government’s concept that the right to an adjustment doesn’t vest until October 1 of each year… or, exact, until October 2 of each year, as I read them now, because it can relate back to the day before.

The term vesting I don’t think belongs in this case.

We’re not talking about construing a will or of an employment contract.

We’re talking about a language that is adopted by the framers of the Constitution for the purpose of removing even a threat of an attack on judicial independence, and all other cases of this Court and everything in the literature says that this clause is to be read very broadly with those objectives in mind, and not strictly, as you might strictly construe a will or an employment contract.

But even as an employment contract there aren’t too many labor leaders that would buy the Government’s argument that you don’t have a right to a cost-of-living adjustment which they negotiated until January 1 or the first day of the fiscal year.

Kevin M. Forde:

Those employees feel that they have a right–

John Paul Stevens:

I wonder if the analogy is perfect, because even if one assumes that there is a statutory right to an adjustment, which might be described as an increase, it seems to me it does not necessarily follow, although it might, that that right is an ingredient of compensation within the meaning of the Constitution.

See, there are two things you have to convince us of.

One, that there’s a statutory right.

And, secondly, that that right is part of compensation within the meaning of the Constitution.

See, it could well be that the labor union person has a right to an adjustment in his compensation as a matter of contracts, but it wouldn’t necessarily follow that that right is part of the compensation covered by Article III.

Kevin M. Forde:

–But here I think it’s clear both places.

You have to have a statutory right–

John Paul Stevens:

Is that right… is it perfectly clear that assuming such right exists as a statutory matter, that that’s compensation?

Kevin M. Forde:

–Yes; oh, I think so.

I think that’s a component of–

John Paul Stevens:

Or is it a right to have your compensation changed in the future, which would be conceptually quite different?

Kevin M. Forde:

–No, I think that is a component of a judge’s salary and the Supreme Court of California agreed, and the Supreme Court of Delaware agreed with that rationale.

So, I don’t think that in our opinion that it’s even debatable that it’s not a component of a judge’s salary.

And I might go back to the decision of the Supreme Court in the O’Donoghue case, where they said that they condemned in violation of Article III

“all which by their necessary operation in effect withhold or take from a judge a part of what he has been promised for his services. “

I think a judge going on the bench today reads the Adjustment Act and thinks that that is something that he has been promised for his services.

Potter Stewart:

Well, I’m not saying it didn’t… Congress could promise a lot of things and they might default on their promises but it doesn’t necessarily follow that every promise they make to judges is “compensation” within the meaning of the Constitution.

There is no question they made a promise and they’ve not fulfilled their promise.

But I don’t think it follows that, it doesn’t necessarily follow… it may… it doesn’t necessarily follow that what they promised was compensation.

Kevin M. Forde:

Well, I think–

Potter Stewart:

That the promise itself was compensation.

Kevin M. Forde:

–I understand your question perfectly and I think the answer, Justice Stevens, is anything that they promise with respect to pay is a part of compensation.

John Paul Stevens:

It’s really not any different from a statute that simply said, the salary of a district judge shall be $55,000 a year.

That’s a promise; it’s no more and no less.

Kevin M. Forde:

That’s a promise.

John Paul Stevens:

It’s a promise that you’ll receive at least that for the rest of your judicial career.

Kevin M. Forde:

That’s right.

In fact, to take up on what Justice Stewart just said, I’ll give you an example from the government’s brief, Justice Stevens.

At first we quibbled about the formula problem in this case, in the lower court and in the opening briefs here.

Kevin M. Forde:

In other words, we thought that the Government’s problem with the concept of a future promise was that, well, we don’t know exactly what it is yet, because we don’t know what the formula is going to be.

In their reply brief they concede that it’s got nothing to do with formulas.

Their problem is that it’s a promise for the future.

And so, for example, they said, if the Congress passed the law and the President signed the law providing that judges are to receive a $9,000 increase payable $3,000 March 1, 1981; $3,000 March 1, 1982; $3,000 March 1, 1984, that notes that is not an enforceable promise under the compensation clause until that March 1 date.

Now this is directly applicable to what the President attempted to do back in 1975, I think, when President Nixon said he’d go along with the 25 percent recommendation of his commission but he was going to make it payable in three installments.

A lot of judges resigned because Congress vetoed that recommendation.

If they stayed, relying on the fact that this year, this year, and this year they would get a reasonable compensation, it would take a while.

I think that the promise talked about in the O’Donoghue case has been violated and the Constitution has been violated.

William H. Rehnquist:

Well, if you’re stressing a reliance element, certainly the Court of Claims rationale might be expanded to say that a judge who goes on the bench expects that Congress will increase his salary as inflation increases, and yet you don’t take that broad a position, do you?

Kevin M. Forde:

We don’t take that broad a position in this case.

In this case, what we’re saying is what is promised by statute directly relating to judges’ pay.

Now, the Court of Claims reasoning, to put it in another context, you might say, if the price of oil goes up higher and a judge has trouble buying gasoline or inflation goes on and on, that a judge does not have an enforceable promise that his pay will be increased.

But we’re saying that a judge has an enforceable promise under the Compensation Clause when the statute says, he shall receive a salary, as adjusted.

That’s all we’re saying in this case.

We’re talking about real pay acts here, not potential pay.

We’re talking about what the statutes provide for judges’ compensation and salary.

In the remaining few minutes I’d like to make some comment on the statutory arguments.

Although we pointed out in our brief and I want to make it as clear as I can that we think it’s imperative that the Court reach the constitutional questions in this case even if it could resolve the case on stat xx grounds, because we think this kind of confrontation should come to an end and the one way to bring it to a swift end is to have once and for all a judicial determination on what is included in a judge’s compensation under the statutes that we presently have in effect.

Byron R. White:

Mr. Forde, could I go back?

You agreed that, when Mr. Justice Brennan asked you, that the quadrennial adjustment in 1977 took care of the four… the ’76 increase prospectively?

Kevin M. Forde:

Would you say that again, Justice White, the years?

Because I’m sometimes in quadrennial and at times–

Byron R. White:

The quadrennial increase took place–

Kevin M. Forde:

–Okay.

Byron R. White:

–in ’77, didn’t it?

Kevin M. Forde:

The quadrennial increase went into effect in March, 1977.

Byron R. White:

And you agree that that took care of the ’76 increase prospectively?

Kevin M. Forde:

That’s right.

Byron R. White:

Yes.

But you do not agree that that also disentitled the judges to the ’77 increase?

Byron R. White:

The comparability… the cost of living increase.

Kevin M. Forde:

Oh, no.

It had nothing to do with the–

Byron R. White:

The Government argues, apparently, that the Pay Act of ’77 took care of both increases.

Kevin M. Forde:

–I don’t think that that’s what he argued.

The–

Byron R. White:

What does he say?

There was a scheduled cost-of-living increase to go into effect on October 1, ’77.

Kevin M. Forde:

–That’s right.

Byron R. White:

What kept it from going into effect?

Kevin M. Forde:

On July 12, 1977, the Congress adopted a statute that says, adjust, that says pay increases that would otherwise go into effect this year shall not take effect.

Byron R. White:

Okay.

So that is different from the quadrennial increases?

Kevin M. Forde:

Oh, you’re right.

Byron R. White:

Exactly.

All right; thank you.

Kevin M. Forde:

The quadrennial increases had nothing to do with these adjustments.

And with respect to that Act, I think that Mr. Geller stated that it specifically said, increases under the Adjustment Act shall not go into effect.

It did not.

It did not refer to the Adjustment Act at all, as I recall, and in fact, in none of the four years did any of the statutes which purported to withhold these limitations did, not a one of them ever mentioned the Adjustment Act, not a one of them ever stated anything about specifically repealing the Adjustment Act or any other of the Pay Acts that we have been discussing here this morning.

John Paul Stevens:

Mr. Forde, just to understand your statutory theory, if you prevail on what the Government refers to as the 1977 Pay Act, that would mean that the quadrennial adjustment for ’77 was then increased by 71 percent, effective October 1, 1977.

And that increased amount would then be the base as to which the 12-point-something percent for the next two years applies?

Kevin M. Forde:

That’s right.

John Paul Stevens:

So that it’s necessary if we go through… if you win on all the statutory arguments, that you build that 7.7 percent into the salary which is later increased.

Kevin M. Forde:

That’s right.

We did that in an appendix to our brief, too.

At the very last page we set out a copy of a memorandum from the Administrative Office making this computation.

Potter Stewart:

And that statutory argument would make the increases up, well, not only to judges but to everybody else covered?

Kevin M. Forde:

Everybody covered by the Executive Schedule.

That’s right, Your Honor.

Kevin M. Forde:

With respect to the statutory arguments… and so long as the Act of July 12, 1977, is being discussed, I have to acknowledge that that Act comes much closer to substantive legislation than the others.

In the other years in question–

Potter Stewart:

That is the ’76 Act?

The one that was not an appropriations act?

Kevin M. Forde:

–That’s right.

The Act of July 12, 1977, was not an appropriations act.

The other three were appropriations acts, two of them the Legislative Branch appropriations act, the third one this joint resolution of a year ago.

If you read the legislative history, as Mr. Geller suggests, you’ll find a lot of discussion about what they intended to do.

Nobody said word one about repealing the Adjustment Act.

All they were concerned about was taking additional compensation.

After the actions of Congress in each of those years, in all three of the years… not ’77, the President issued an executive order saying the rates of pay for judges and others… Congressmen and others, are… and if you read those executive orders, we cited two in our briefs, there is a third one for the third year, he shows the pay as adjusted.

And then he has a footnote saying, funds are not available.

So he did not think in those years that Congress was enacting substantive legislation.

The Comptroller General didn’t think that Congress was enacting substantive legislation.

Before they did it the first time the chairman of the committee asked for an opinion by the Comptroller General and the Comptroller General said, if you do it this way, you will not be affecting the statutory rates of pay, you will only be withholding funds.

You will not be eliminating the obligation of the United States to pay the salary.

You just will not have funds available to pay them at this time.

After having before them… after… the Comptroller General’s opinion, they did it by just limiting the funds.

And nobody in the record said, we disagree with the opinion.

In other words, the Solicitor says, well, the Congress obviously disagreed with the Comptroller General’s opinion in that regard, but nobody said they did.

The Office of Personnel Management issued a memorandum last year saying, in their opinion the limitations did not eliminate the statutory obligation of the United States to pay the adjusted salary.

The statute books… if you look in the statute books, I believe it’s 6 U.S. C 5332… list judges’ pay and Congressmen and others as adjusted.

Then there’s a footnote, funds not available to pay.

You pick up the handbook, West Publishing Company handbook that’s on the desk of every district judge in the country, if he opens up to 28 U.S. 135 today, he’ll see in there a footnote as to judges’ salary, and the footnote says that his pay is something substantially more than he’s receiving, I forget the exact amount that’s in the current issue of West’s.

And then a footnote, funds not available to pay.

So, if the congressional history is so clear that they were enacting substantive legislation, a lot of people don’t realize it.

My time is up.

I thank Your Honors for the time and the courtesy this morning.

We urge that the Court would affirm on both appeals on both statutory and constitutional grounds.

Thank you very much.

Warren E. Burger:

Mr. Geller, do you have anything further?

Kenneth Steven Geller:

Just a few things, Mr. Chief Justice.

First, let me begin by correcting a misstatement which Mr. Forde just made.

Three of the four Pay Acts expressly refer to the Adjustment Act.

The citations are in Footnote 3 of our reply brief.

Second, although there was some equivocation in his answers, I think that the salient point of the appellees’ argument was the answer that Mr. Forde gave to Justice Stevens’ question, yes, if their argument is accepted, then Congress could not repeal the Adjustment Act at all.

Although, I might add, they do concede, as I think they have to, that Congress could repeal either on a one year basis or permanently the Comparability Act, which would leave judges in exactly the same position as these Pay Acts have left them.

I think that shows the technical nature of the arguments that appellees are making here today.

John Paul Stevens:

Well, it’s not entirely technical.

It says if you’re going to give raises to others, you’ve got to give them to judges too, whereas your view would allow them just to take it out for judges and leave everybody else get a raise.

Kenneth Steven Geller:

No, our view is that they could refuse to give it to anyone under the Adjustment Act.

We don’t say that the judges don’t–

John Paul Stevens:

Under your view, they could raise the salaries of all government personnel except judges, under the Comparability Act and the Adjustment Act.

Kenneth Steven Geller:

–Well, clearly they could raise up all the salaries under the Comparability Act and do as they’ve done over the last four years and say, no one under the Adjustment Act can get any raises.

Now, the question is not raised in this case and it would be a much more difficult question, if Congress singled out judges in the Pay Acts.

John Paul Stevens:

Under your view… now, let’s get this clear… under your view, as I understand it, Congress clearly could say, henceforth the Adjustment Act shall apply to all federal employees except judges.

Kenneth Steven Geller:

Well, let’s not–

John Paul Stevens:

Isn’t that correct?

Kenneth Steven Geller:

–Well, yes, but let me, let’s not confuse two things.

First, there’s a question as to whether there’s a diminution at all.

We take the position–

John Paul Stevens:

Well, I understand.

You say that would not be a diminution.

Kenneth Steven Geller:

–Right.

So long as Congress acts–

John Paul Stevens:

Article III doesn’t apply; therefore, they can do it.

Kenneth Steven Geller:

–Exactly; that’s right.

But once, of course, if the Court disagrees with that argument and finds that the salaries have been increased, then we don’t contend that Congress can discriminate against judges in reducing salaries.

John Paul Stevens:

I understand.

But your basic position is that they could modify the legislation to say, all federal personnel except judges shall get the benefit of the Adjustment Act.

That’s–

Kenneth Steven Geller:

If they act–

Byron R. White:

–That’s almost a fortiori from your position.

Kenneth Steven Geller:

–Yes; if they act before the Adjustment Act increases go into effect, we claim there hasn’t been a diminution in compensation.

William H. Rehnquist:

What if there never had been a Federal Salary Act and it was simply set the way it had been 50 years ago; Congress enacted a law saying the salary of a judge shall be such and such, and in a particular year Congress increased its own salary five-fold but left the judges exactly where they were, it didn’t reduce them at all?

Any problem?

Kenneth Steven Geller:

No question that that would not violate the Compensation Clause.

In fact, as the Court knows, originally the Compensation Clause prevented increases as well as decreases in judicial compensation.

Potter Stewart:

No, no, not originally, the Compensation Clause didn’t.

That was a proposal.

Kenneth Steven Geller:

Originally the draft, proposed draft of the Compensation Clause.

That’s correct.

And over the objections of people such as James Madison the prohibition on increases was taken out.

It was left to Congress to decide whether–

Potter Stewart:

Well, that was never in the Constitution.

Kenneth Steven Geller:

–Whether or not to increase judicial salaries is a question that the framers explicitly decided to leave to Congress.

Now, the Adjustment Act, we submit, creates a useful system whereby judges may get an automatic cost-of-living increase every year.

But there’s no indication that in passing the statute Congress intended to surrender its ultimate authority granted by the framers of the Constitution to raise or to refuse to raise salaries of all federal officials including federal judges.

Indeed, we think the fact that the Congress that passed the Adjustment Act was the very same Congress that less than a year later passed the 1976 Pay Act, so I don’t think that they thought that by trying to search for a better mechanism to deal with judicial pay they were freezing into the Constitution this Adjustment Act procedure and binding all future Congresses never to be able to refuse to allow increases to go into effect.

May I just–

Warren E. Burger:

Briefly.

Kenneth Steven Geller:

–make one additional point?

The analogy that you raised, Mr. Justice Stewart, I don’t think is accurate, where Congress says judges shall get $65,000, because those salaries will have gone into effect.

We don’t take the position that it’s not a diminution once they’ve gone into effect.

I think the proper analogy would be if Congress today were to say, in the year 2000 judges shall get $100,000 a year.

The question is if, in 1990, Congress were to repeal that statute, is that a diminution of compensation?

And we say the answer is, no.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.