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oe cae Ae ee lain: etna aA tate net ne ne a ee © 266 513 FEDERAL SUPPLEMENT DECISION This case comes before this three-judge court on cross-motions for summary judg- ment. The amended complaint to which the motions are addressed challenges the appointment of former Congressman Abner J. Mikva to a position as a circuit judge for the United States Court of Appeals for the District of Columbia Circuit. The relevant portions of the statute under which the challenge is brought, Act of October 12, 1979, Pub.L.No. 96-86, § 101(c), 93 Stat. 656 (not codified), are set out in the margin.! The plaintiff, Senator McClure, asserting that the salaries of federal judges were increased during defendant Mikva’s term in Congress, claims that Judge Mikva’s? nomi- nation, confirmation, and appointment as a circuit judge were in violation of Article I, section 6, clause 2 of the United States Constitution ‘(the Inéligibility Clause).* 1. Section 101(c) provides in relevant part: Any additional payment [to federal officials) under existing law is not to be construed as an increase in salary or emoluments within the meaning of Article I, section 6, clause 2 of the Constitution, except that: ; ; (1) Any Member of Congress, whether he voted to confirm or not to confirm the ap- pointment of any judge appointed during the 96th Congress to the United States Court of Appeals for the District of Columbia, or whether he abstained from, or was not present for such vote, may bring a civil ac- tion in the United States District Court for the District of Columbia or in any United States District Court in the State he repre- sents to contest the constitutionality of the appointment and continuance in office of said Circuit Judge on the ground that such appointment and continuance in office is in violation of Article I, section 6, clause 2 of the Constitution; (2) The designated United States District Courts shall have exclusive jurisdiction, with- out regard to the sum or value of the matter in controversy, to determine the validity of such appointment and continuance in office; (3) Any action brought under this section © shall. be heard and determined by a panel of three judges in accordance with the provi- sions of section 2284 of title 28, United States Code. Any appeal from the action of a court convened pursuant to such section shall lie to the Supreme Court; and (4) Any judge designated to hear any ac- tion brought under this section shall cause such action to be in every way expedited. Senator McClure asks that we direct the President to notify defendant Mikva that his appointment was in violation of the Constitution, and that we notify defendant Mikva that his appointment was void ab initio and that he must vacate his office. The threshold question before us is whether we have jurisdiction to hear the case. We cannot reach the merits of. Senator McClure’s challenge unless we answer that question affirmatively. BACKGROUND The procedural posture of this case and the events in its background provide a con- text that is helpful in analyzing and attach- ing appropriate legal significance to the contentions made by the parties. The pro- cedural steps taken and a summary of perti- nent portions of the pleadings are set forth in the margin.‘ 2. While plaintiff insists on referring to defend- ant Mikva as “Mr.,” his proper title is “Judge” until determined otherwise. 3. Article'I, section 6, clause 2 of the United States Constitution provides in relevant part: No Senator or Representative shall, during the Time for which he was elected, be ap- pointed to any civil Office under the Authori- ty of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; 4. The original complaint was filed in the United States District Court for the District of Idaho on September 25, 1979, by plaintiff McClure, a United States Senator from the State of Idaho. Jurisdiction was alleged under 28 U.S.C. §§ 1331 (federal question) and 2201 (declarato- ry judgment). The original defendants were James Earl Carter, President of the United States, and J. Stanley Kimmitt, Secretary of the United States Senate. The complaint sought a declaration that then-Congressman Abner J. Mikva was constitutionally ineligible for ap- pointment to the United States Court of Ap- peals for the District of Columbia Circuit. The suit also sought an injunction against defend- ant Kimmitt to prevent him from communicat- ing the results of the United States Senate's vote of confirmation of Abner Mikva to the President. On September 26, 1979, defendant Carter signed the commission appointing Abner J. Mikva a United States Circuit Judge for the District of Columbia Circuit. On October 16, 2 . Cong nated | for thi numbe McClu deed, : includi: positio: their a Congre suited that h appoin the In: failed their fi Senate as judg Rec. S: Afte Mikva, posed 1 ute unc The Se as a ric ber 10, (daily « Repres Id. HX relief The amen tion b be dis tion t! over | On origin orable Unite Circui three- On De withd The 1