                                                                [PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS
                                                             FILED
                    FOR THE ELEVENTH CIRCUIT          U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                            APR 26 2000
                      ________________________
                                                         THOMAS K. KAHN
                                                              CLERK
                              No. 94-6400
                      _______________________
                   D.C. Docket Nos. 93-00069-CV-M-S
                         & 93-0000196-CV-M-S


JEFFERSON COUNTY, A political subdivision
of the State of Alabama,

                                                 Plaintiff-Appellant,

                                versus

WILLIAM ACKER, JR.,
                                                 Defendant-Appellee.


JEFFERSON COUNTY, A political subdivision
of the State of Alabama,

                                                 Plaintiff-Appellant,

     versus

U. W. CLEMON,

                                                 Defendant-Appellee.



                        _____________________
                       Appeal from the United States District Court
                          for the Northern District of Alabama
                                _____________________
                                    (April 26, 2000)

   ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before CARNES, BARKETT and WILSON, Circuit Judges.

CARNES, Circuit Judge:

        For more than seven years the validity of the occupational tax imposed by

Jefferson County, Alabama Ordinance 1120 (Sept. 29, 1987), as it applies to the

district court judges of the United States District Court for the Northern District of

Alabama, has been litigated in federal court. See Jefferson County v. Acker, 850

F.Supp. 1536 (N.D. Ala. 1994), rev’d, 61 F.3d 848 (11th Cir. 1995), aff’d en banc,

92 F.3d 1561 (11th Cir. 1996), vacated, 520 U.S. 1261, 117 S.Ct. 2429 (1997),

aff’d en banc,137 F.3d 1314 (11th Cir. 1998), rev’d, 119 S.Ct. 2069 (1999). The

matter is once more back before us, again on remand from the Supreme Court, see

119 S.Ct. 2069, 2081, this time for what may be the last chapter in the story, at

least as far as the storyline involves federal court litigation over the occupational

tax.1

   1
     We are informed by the parties that the ordinance imposing the occupational tax has spawned
litigation in state court involving challenges to it on other grounds, and more than one piece of
legislation has been introduced to revise or replace the tax (one bill was actually enacted but it was
struck down on unrelated state constitutional grounds).

                                                  2
       The issue that remains for us to address is whether application of this

occupational tax to Article III judges violates the Compensation Clause, which is

contained in Article III, Section 1 of the Constitution. See 119 S.Ct. at 2074 n.2

(noting that we had not yet addressed the issue of whether the tax violated the

Compensation Clause, and that the issue was not before the Supreme Court). The

district court held that application of the tax to the Appellees, both of whom had

been appointed judge before enactment of the ordinance imposing the tax, violated

the Compensation Clause. See 850 F.Supp. at 1546 - 48. We reach a different

conclusion.

       The Compensation Clause, sometimes called the Anti-Diminution Clause,

provides that Article III judges, “shall at stated Times, receive for their Services, a

Compensation, which shall not be diminished during their Continuance in Office.”

U.S. Const. art. III, § 1. The Jefferson County occupational tax “is, and operates

as, a tax on employees’ compensation.” Jefferson County, Alabama v. Acker, 119




        Appellees’ moved for a stay of proceedings in this Court until the dust settles in the state
court and legislative arena, but we denied that motion because “there does not appear to be a
reasonable probability that the issue of the Appellees’ liability for payment of the tax for past years
will be mooted by any of the pending state judicial proceedings or by any action of the Alabama
Legislature.” Order Denying Motion to Stay Proceedings, February 22, 2000, Case No. 94-6400
(11th Cir.). In any event, this case is not moot as matters now stand.

       Of course, we decide only the case before us, and nothing we say in this opinion is meant
to imply any view on any other issues relating to the Jefferson County occupational tax.

                                                  3
S.Ct. at 2077. The Supreme Court held in Evans v. Gore, 253 U.S. 245, 264, 40

S.Ct. 550, 557 (1920), that an income tax on the compensation of Article III judges

was unconstitutional, but the holding of that decision is limited to application of

an income tax to judges appointed before the tax was enacted (and as we will

discuss shortly, before the legislature was clearly authorized to enact the tax),

which is as far as the facts of that case went, see id. at 246, 40 S.Ct. at 550. That

limitation of the Evans decision was confirmed and arguably tightened in

O’Malley v. Woodrough, 307 U.S. 277, 59 S.Ct. 838 (1939).

      The issue in O’Malley was whether Congress had transgressed the

Compensation Clause by providing in a series of revenue acts that the income tax

would be applicable to all federal judges appointed after the initial date of that

provision’s enactment. See id. at 278, 59 S.Ct. at 838; id. at 283 - 84, 59 S.Ct. at

840. The Supreme Court held that application of the income tax to Article III

judges who were on notice when they were appointed that the tax would be applied

to them did not violate the Compensation Clause. See id. The Court explicitly

disavowed most of what it had said in Miles v. Graham, 268 U.S. 501, 45 S.Ct. 601

(1925), a decision which had extended Evans to Article III judges appointed after

the effective date the income tax was enacted. See 307 U.S. at 282 - 83 (“to the




                                           4
extent that what the Court now says is inconsistent with what was said in Miles v.

Graham, 268 U.S. 501, 45 S.Ct. 601, the latter cannot survive.”).

      The Supreme Court had much to say in its O’ Malley opinion about the

Evans decision, and none of it was flattering. The Court said that “the meaning

which Evans v. Gore, supra, imputed to the history which explains Article III, § 1

was contrary to the way in which it was read by other English-speaking courts,”

307 U.S. at 281, 59 S.Ct. at 839(footnote omitted); observed that Evans had “met

wide and steadily growing disfavor from legal scholarship and professional

opinion”; id., and noted that the decision had been “rejected by most of the courts

before whom the matter came after that decision.” Id. (footnote omitted).

      The Supreme Court also spoke disparagingly in O’Malley of the reasoning

of Evans, although the Court arguably limited some of that disparagement to the

facts before it in the O’Malley case. The Court declared that even to suggest an

income tax would undermine the independence of federal judges appointed after

Congress had put them on notice they would have to “bear their aliquot share of

the cost of maintaining the Government, is to trivialize the great historic

experience on which the framers based the safeguards of Article III, § 1.” Id. at

282, 59 S.Ct. at 840 (footnote omitted). And, the Court reasoned that, “[t]o subject

them to a general tax is merely to recognize that judges are also citizens, and that


                                          5
their particular function in government does not generate an immunity from

sharing with their fellow citizens the material burden of the government whose

Constitution and laws they are charged with administering.” Id. That reasoning

about the permissibility of subjecting judges to general taxes is inconsistent with

the reasoning and decision in Evans.

      The Supreme Court recognized as much in United States v. Will, 449 U.S.

200, 101 S.Ct. 471 (1980), which involved Congressional action to stop or reduce

previously authorized annual cost-of-living increases for certain federal officials

including judges. In the course of deciding that case, the Court had this to say

about the effect of O’Malley on Evans:

      In O'Malley v. Woodrough, 307 U.S. 277, 59 S.Ct. 838, 83 L.Ed.
      1289 (1939), this Court held that the immunity in the Compensation
      Clause would not extend to exempting judges from paying taxes, a
      duty shared by all citizens. The Court thus recognized that the
      Compensation Clause does not forbid everything that might adversely
      affect judges. The opinion concluded by saying that to the extent
      Miles v. Graham, 268 U.S. 501, 45 S.Ct. 601, 69 L.Ed. 1067 (1925),
      was inconsistent, it "cannot survive." 307 U.S., at 282-283, 59 S.Ct.,
      at 840. Because Miles relied on Evans v. Gore, O'Malley must also be
      read to undermine the reasoning of Evans, on which the District Court
      relied in reaching its decision.

Will, 449 U.S. at 227 n. 31, 101 S.Ct. at 486 n. 31. So, in Will the Supreme Court

itself read O’Malley as undermining the reasoning of Evans, and it characterized




                                          6
the holding of O’Malley broadly, saying that the Compensation Clause did not

exempt judges from paying the same taxes that other citizens paid.

      Admittedly, in Will the Supreme Court did not use the magic word

“overruled” in talking about Evans, but the Court came as close to overruling that

earlier decision as it could without actually uttering the word. Given the severity of

the blows O’Malley and Will inflicted upon Evans one might suggest it is time to

recognize that Evans is dead and gone. Cf. White v. Lemacks, 183 F.3d 1253,

1259 (11th Cir. 1999) (“Enough is enough. Like a favorite uncle who has passed

away in the parlor, [our decision in] Cornelius needs to be interred. We do so now.

Recognizing that it was dealt a fatal blow by [the Supreme Court’s decision in]

Collins, we pronounce Cornelius dead and buried.”). The problem is that the

Supreme Court has insisted on reserving to itself the task of burying its own

decisions. We have been told more than once by it that, “[i]f a precedent of this

Court has direct application in a case, yet appears to rest on reasons rejected in

some other line of decisions, the Court of Appeals should follow the case which

directly controls, leaving to this Court, the prerogative of overruling its own

decisions.” Rodriguez de Quijas v. Shearson/ American Express, Inc., 490 U.S.

477, 484, 109 S.Ct. 1987, 1921-22 (1989); accord, e.g., Agostini v. Felton, 521

U.S. 203, 237, 117 S.Ct. 1997, 2017 (1997)(“We do not acknowledge, and we do


                                          7
not hold that other courts should conclude our more recent cases have, by

implication, overruled an earlier precedent.”). We have followed that admonition.

See Brisentine v. Stone & Webster Engineering Corp., 117 F.3d 519, 525 (11th

Cir. 1997)(“It may be that the Supreme Court has cut Alexander back so far that it

will not survive. Perhaps, but we are not convinced we are authorized to sing the

dirge of Alexander. We will leave that to the Supreme Court, which has

admonished courts of appeals ... ‘[to leave it] the prerogative of overruling its own

decisions.’” (quoting Rodrigquez de Quijuas, 490 U.S. at 484, 109 S.Ct. at 1921-

22); Engineering Contractors Ass’n v. Metropolitan Dade County, 122 F.3d 895,

908 (11th Cir. 1997).

      There is, however, a difference between following a precedent and extending

a precedent. That difference, as it relates to a lower court’s duty to follow

moribund Supreme Court decisions, is manifest in the words “which directly

controls,” the limiting phrase the Court used in Rodriguez , 490 U.S. at 484, 109

S.Ct. at 1921, to express our duty to follow one of its decisions whose reasoning

has been undermined by later decisions. Where a Supreme Court decision that has

not been overruled is squarely on point and therefore “directly controls” the case at

hand, we are to follow it even though convinced that the Court will overturn that

decision the next time it addresses the issue. But if the facts of a gravely wounded


                                           8
Supreme Court decision do not line up closely with the facts before us – if it

cannot be said that decision “directly controls” our case – then, we are free to apply

the reasoning in later Supreme Court decisions to the case at hand. We are not

obligated to extend by even a micron a Supreme Court decision which that Court

itself has discredited. Sometimes, perhaps oftentimes, the correct course will be

illuminated by our attempt to reconcile the later Supreme Court decision with the

earlier one, an attempt we are obligated to make. Cf. United States v. Hogan, 986

F.2d 1364, 1369 (11th Cir. 1993)(“A panel of this Court is obligated, if at all

possible, to distill from apparently conflicting prior panel decisions a basis of

reconciliation and to apply that reconciled rule.”).

      The Evans decision “directly controls” the case in which federal judges

appointed before the federal income tax was even authorized are subjected to it.

Recall that the plaintiff in Evans was appointed in 1899, 253 U.S. at 246, 40 S.Ct.

at 550, four years after the Supreme Court had struck down as unconstitutional a

prior federal income tax, see Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601,

15 S.Ct. 912 (1895). At the time of his appointment, not only was there no income

tax on the books, it would be another fourteen years before the Sixteenth

Amendment was ratified in 1913, authorizing Congress to “lay and collect taxes on




                                           9
incomes, from whatever source derived ...” 2 That is the context in which the

Evans Court said that the “necessary operation and effect” of applying the income

tax to the judge plaintiff in that case would be to “withhold or take from the judge

a part of that which was promised by law for his services... .” 253 U.S. at 254, 40

S.Ct. at 553. The Supreme Court has extended the holding of Evans beyond its

facts only once, and that was in Miles v. Graham, which O’Malley explicitly

overruled, 307 U.S. at 282 - 83, 59 S.Ct. at 840 (saying that Miles “cannot

survive”).

        The judge plaintiff in O’Malley was appointed in 1933, after the Sixteenth

Amendment was ratified, and after enactment of the legislation making the

challenged tax applicable to federal judges. 307 U.S. at 279, 59 S.Ct. at 838. The

Evans and O’Malley decisions are reconcilable, if at all, on the basis of the nature

and amount of notice the plaintiff had at the time of appointment that his

compensation could be subject to the tax in question. In O’Malley the judge had

reasonable notice at the time of appointment that his compensation would be – or

might be, since there was no certainty in those early days the tax would not be


   2
     The income tax acts of 1913, chapter 16, 38 Stat. 168, 1916, chapter 463, 39 Stat. 758, and
1917, chapter 63, 40 Stat. 329, excluded the compensation of federal judges from the tax. Evans,
253 U.S. at 259, 40 S.Ct. at 555. The 1919 act, which was involved in the Evans case, explicitly
included the compensation of “the judges of the Supreme and inferior courts of the United States.”
Comp. St. Ann. Supp. 1919, § 6336; Evans, 253 U.S. at 246, 40 S.Ct. at 550.

                                               10
repealed – subject to the federal income tax. See 307 U.S. at 279, 59 S.Ct. at 838 -

39 (“For it was the Act of June 6, 1932 [which, like other income tax legislation,

was authorized by the Sixteenth Amendment] that gave notice to all judges

thereafter to be appointed, of the new Congressional policy to include the judicial

salaries of such judges in the assessment of income taxes.”) By contrast, the judge

plaintiff in Evans did not have reasonable notice at the time of his appointment

that his compensation might be subject to a federal income tax, because an attempt

to levy a broad income tax previously had been struck down, and the

constitutional amendment superceding that decision had not yet been adopted at

the time the judge was appointed. Although Congress probably could have

enacted an income tax limited to salary and compensation without the specific

authorization of the Sixteenth Amendment, see Pollock, 158 U.S. at 636-37, 15 S.

Ct. at 920, it was most unlikely to do so, id. (“We cannot believe that such was the

intention of Congress.”), and indeed did not.

      The facts of the present case are not directly controlled by Evans. It is true

that the occupational tax at issue here was not enacted until after these two plaintiff

judges were appointed to office: one was appointed in 1980, the other in 1982, and

the ordinance imposing the tax was enacted in 1988. But at the time these judge

plaintiffs were appointed, Alabama Act 406, which had been on the books since


                                          11
1967, specifically authorized “Jefferson County to impose a privilege, license, or

occupational tax upon all persons engaged in any vocation, occupation, calling, or

profession who are not required by state law to pay such a tax to the State of

Alabama.” See Jefferson County v. Acker, 850 F.Supp. 1536, 1538 (N.D. Ala.

1994). Whatever may happen to that Alabama law in the future, at the time these

judges were appointed, it put them on clear notice that under Alabama law they

could be subjected by Jefferson County to a tax on their compensation. Federal

law was clear about that, too. The Public Salary Tax Act of 1937,3 4 U.S.C. § 111,

and the Buck Act, 4 U.S.C. § 106,4 which was enacted in 1939, put federal judges

on notice that their compensation was subject to a non-discriminatory state or local

tax on compensation, which is what Jefferson County’s occupational tax is, see

   3
       The Public Salary Tax Act, 4 U.S.C. § 111, states:
               The United States consents to the taxation of pay or compensation for
               personal service as an officer or employee of the United States, a
               territory or possession or political subdivision thereof, the government
               of the District of Columbia, or an agency or instrumentality of one or
               more of the foregoing, by a duly constituted taxing authority having
               jurisdiction, if the taxation does not discriminate against the officer
               or employee because of the source of the pay or compensation.
   4
       The Buck Act, 4 U.S.C. § 106(a) states:
               No person shall be relieved from liability for any income tax levied by any
               State, or by any duly constituted taxing authority therein, having
               jurisdiction to levy such a tax, by reason of his residing within a Federal
               area or receiving income from transactions occurring or services performed in
               such area; and such State or taxing authority shall have full jurisdiction and power
               to levy and collect such tax in any Federal area within such State to the same
               extent and with the same effect as though such area was not a Federal area.


                                                12
119 S.Ct. at 2080-81. The joint effect of Alabama Act 406, the Public Salary Tax

Act, and the Buck Act, was to hang over the compensation of federal judges

working in Jefferson County a sword of Damocles (or given that the tax rate

ultimately imposed was only one-half of one percent, perhaps we should refer to it

as a pen knife of Damocles). True, the blade did not fall until years later, but it

hung there nonetheless at the time these two judges were appointed. That is notice

enough for the tax to escape the weakened grasp of the Evans decision. To hold

otherwise would require us to extend Evans, and that we will not do.5

       The judgment of the district court is REVERSED, and this case is

REMANDED for proceedings consistent with this opinion.




   5
     The decision in Hatter v. United States, 64 F.3d 647 (Fed. Cir. 1995), is not binding on us, and
to the extent that its reasoning or result is inconsistent with our own, we are unpersuaded by it.

        Because of our disposition of the case on other grounds, we need not and do not reach
Jefferson County’s alternative argument that the Compensation Clause does not apply to state and
local legislative measures anyway.

                                                 13
