however he would need authority to transfer funds for that payment in the amount of $ 4,617,000. The committee reports on the SAR Act, 1980, contain tables setting forth the amounts requested by the Director and the amounts of supplemental appropriations ("by transfer") recommended by the respective committees, all of which are identical with the Director's requests and with the amounts actually appropriated. See H.R.Rep.No.1086, 96th Cong., 2d Sess. 211-12, 253 (1980); S.Rep.No.829, 96th Cong., 2d Sess. 297-98 (1980).
Plaintiff contends that by authorizing the transfer of funds in the SAR Act to pay judicial officials the full 12.9% increase, Congress implicitly repealed Public Law 96-86, which allowed only the 5.5% increase. Aside from the established principle that "repeals by implication are not favored," Posadas v. National City Bank, 296 U.S. 497, 503, 56 S. Ct. 349, 352, 80 L. Ed. 351 (1936), and the Supreme Court's recognition in Will that the latter principle applies "with especial force when the provision advanced as the repealing measure was enacted in an appropriations bill," 449 U.S. at 222, 101 S. Ct. at 484 (citing Tennessee Valley Authority v. Hill, 437 U.S. 153, 190, 98 S. Ct. 2279, 2299, 57 L. Ed. 2d 117 (1978)), it is obvious from the legislative history cited by Foley, and indeed from his own letters to the chairmen of the relevant subcommittees, that the appropriations to pay the full increase were made only conditionally, on the basis of this Court's March 24, 1980 ruling, and were to be held in reserve until the outcome of this litigation was known. Foley himself promised the chairman of the House subcommittee in a letter of April 22, 1980, that if funds were appropriated to pay the 12.9% increase in salaries based on this Court's ruling that they would be held in reserve and returned to the Treasury in the event the ruling, then on appeal, was reversed. In a pay order published a month thereafter, Foley again noted that the availability of the appropriated funds was dependent upon further order in this case. 45 Fed.Reg. 32355 (May 16, 1980). Nor does section 302 of the SAR Act, which provides that "restrictions" on funds available for fiscal year 1980 "are hereby increased to the extent necessary to meet increased pay costs authorized by or pursuant to law," lend anymore support to plaintiff's contention. Clearly Congress' transferral of the funds was an act of fiscal prudence during the pendency of this litigation, not a comment on its merits.
Finally, the Court reaches plaintiff's alternative claim that section 101(c) of Public Law 96-86 is unconstitutional as applied to non-Article III officials of the Judiciary subject to the Adjustment Act because it violates the prohibition against impairment of contract stated in section 10 of Article I, as incorporated into the Fifth Amendment. See John McShain, Inc. v. District of Columbia, 92 U.S. App. D.C. 358, 205 F.2d 882, 883-84 (D.C.Cir.1953) (citing Perry v. United States, 294 U.S. 330, 55 S. Ct. 432, 79 L. Ed. 912 (1935) and Lynch v. United States, 292 U.S. 571, 54 S. Ct. 840, 78 L. Ed. 1434 (1934)). Foley analogized the constitutional claim of these non-Article III officials to the claim of the Article III judges in Will, asserting that section 101(c) as applied to non-Article III officials, is invalid under the Fifth Amendment because, as in Will, it purported to revoke an increase in compensation after the increase had become effective. Cf. 449 U.S. at 228-29, 230, 101 S. Ct. at 487-488.
It is established that Adjustment Act increases are effective automatically on the first day of the applicable pay period of the new fiscal year, see 28 U.S.C. § 461; 449 U.S. at 204-05, 101 S. Ct. at 475-476, unless before midnight on September 30 the President signs a bill blocking or reducing the scheduled increase. See 449 U.S. at 226-29, 101 S. Ct. at 486-487. See also National Treasury Employees Union v. Nixon, 160 U.S. App. D.C. 321, 492 F.2d 587, 600-01, 616 (D.C.Cir.1974). Whether or not the rights of non-Article III judicial officials to Adjustment Act increases for fiscal year 1980 were "vested" as of October 1, 1979,
it is certain that both Article III and non-Article III members of the Judiciary acquired effective statutory entitlements to the increases on the days they became due and payable.
The Constitutional consequences of revoking the right of non-Article III employees to such a statutory entitlement after they became entitled to it, although "troublesome," see American Federation of Government Employees, AFL-CIO v. Campbell, 474 F. Supp. 357 (D.D.C.1979), aff'd in part and rev'd in part, 659 F.2d 157 (D.C.Cir.1980), cert. denied, 454 U.S. 820, 102 S. Ct. 103, 70 L. Ed. 2d 92 (1981), are not the same as the consequences of divesting Article III judges of such a right protected by the Compensation Clause.
In contrast to the vested rights of Article III judges under the Compensation Clause, the rights of non-Article III judicial employees to Adjustment Act increases are solely statutory. Cf. United States v. Larionoff, 431 U.S. 864, 869, 97 S. Ct. 2150, 2154, 53 L. Ed. 2d 48 (1977); Bell v. United States, 366 U.S. 393, 401, 81 S. Ct. 1230, 1235, 6 L. Ed. 2d 365 (1961); United States v. Fisher, 109 U.S. 143, 145, 3 S. Ct. 154, 155, 27 L. Ed. 885 (1883). It is settled that, absent contractual or other guarantees, a statutory entitlement may be prospectively reduced without infringement. See United States v. Larionoff, 431 U.S. at 879, 97 S. Ct. at 2159. In United States v. Fisher, the plaintiff, Chief Justice of the Territory of Wyoming, claimed he had a right to yearly compensation of $ 3,000, relying upon an 1870 statute which had set the compensation of territorial judges at "three thousand dollars each per annum." 109 U.S. at 144, 3 S. Ct. at 154. In appropriations acts passed in 1878, 1879, and 1880, Congress had appropriated sums of $ 2600.00 "in full compensation" for the services of territorial judges for each of those years. Id. at 144-45, 3 S. Ct. at 154-155. In holding that the appropriations acts had manifested an intent by Congress to fix the salary for those years at the lower rate and to supercede the 1870 law, the Court expressly noted that there was no provision of the Constitution which forbade a reduction. Id. at 145, 3 S. Ct. at 155.
Even if a statutory right has become effective, Congress may at any point revoke the right for the future by altering or repealing the statute upon which it is based. The reasoning of the District Court in the recent case of AFGE, AFL-CIO v. Campbell, 474 F. Supp. at 357, supports this conclusion. The District Court held that even though blue-collar workers became statutorily entitled to higher salary increases on October 1 and October 8, they had no constitutional claim to those higher increases from the date the appropriations statute was enacted and forward for the balance of the fiscal year; such a prospective reduction in pay did not interfere with the workers' rights.
Id. at 360 (citing United States v. Larionoff, 431 U.S. at 879, 97 S. Ct. at 2159; Bell v. United States, 366 U.S. at 401, 81 S. Ct. at 1235; United States v. Dickerson, 310 U.S. 554, 60 S. Ct. 1034, 84 L. Ed. 1356 (1940); United States v. Yoshida International, Inc., 63 C.C.P.A. 15, 526 F.2d 560 (Cust. & Pat.App.1975)). In this case non-Article III members of the Judiciary to whom Public Law 96-86 is applicable had no constitutional claim to salary increases higher than 5.5% from the date Public Law 96-86 was enacted, October 12, 1979, until the end of fiscal year 1980.
A different rule must apply with regard to the retroactive reduction of a federal employee's pay by Congress; that is, other principles come into play when Congress attempts to reduce the rate of pay for work already performed. As of October 1, 1979, or October 8, 1979, affected non-Article III judicial officials had an effective statutory right to a 7.02% or 12.9% increase in their rates of pay. That right was lost as of October 12, 1979, when Public Law 96-86 became law and reduced the statutory increase to 5.5%, but for work performed during the intervening period of eleven or four days, the affected employees are due the rates effective at those times. The right to a salary for work performed at the rate admittedly effective during the period when the work was performed is a right or property interest, a legitimate entitlement which qualifies for protection against governmental interference under the Due Process Clause of the Fifth Amendment. See, e.g., Board of Regents v. Roth, 408 U.S. 564, 577-78, 92 S. Ct. 2701, 2709-2710, 33 L. Ed. 2d 548 (1972); Goldberg v. Kelly, 397 U.S. 254, 261-63, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1980). American courts have traditionally refused to countenance retroactive legislation when it would have such an effect upon the rights of private parties. See generally Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 17, 96 S. Ct. 2882, 2893, 49 L. Ed. 2d 752 (1976); Chevron Oil v. Huson, 404 U.S. 97, 106, 92 S. Ct. 349, 355, 30 L. Ed. 2d 296 (1971); United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 2 L. Ed. 49 (1801). The District Court in AFGE noted that the federal defendant in that case could cite no authority for the retroactive decrease of wage rates for services already performed, 474 F. Supp. at 359; the President in this case does not even make the argument that Public Law 96-86 should be applied retroactively. The Supreme Court in Larionoff viewed with displeasure the possibility that Congress might have intended to deprive a serviceman of pay for services already performed and yet owing, 431 U.S. at 879, 97 S. Ct. at 2159, and as long ago as 1850 the Supreme Court in Butler v. Pennsylvania, 51 U.S. (10 How.) 402, 416, 13 L. Ed. 472, noted that "(t)he promised compensation for services actually performed and accepted ... may undoubtedly be claimed both upon principles of compact and of equity...." This Court declines to accord the rights of federal employees today any less respect.