       JEFFERSON COUNTY, A political subdivision of the State of Alabama, Plaintiff-Appellant,

                                                      v.

                                 William ACKER, Jr., Defendant-Appellee.

          Jefferson County, A political subdivision of the State of Alabama, Plaintiff-Appellant,

                                                      v.

                                    U.W. Clemon, Defendant-Appellee.

                                                No. 94-6400.

                                       United States Court of Appeals,

                                               Eleventh Circuit.

                                               April 26, 2000.

Appeal from the United States District Court for the Northern District of Alabama. (Nos CV93-M-69-S and
CV93-M-196-S), Charles A. Moye, Jr., Judge.

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, 138 L.Ed.2d 191 (1997), aff'd en banc,137 F.3d 1314

(11th Cir.1998), rev'd, 527 U.S. 423, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999). The matter is once more back

before us, again on remand from the Supreme Court, see 527 U.S. 423, 119 S.Ct. 2069, 2081, 144 L.Ed.2d

408, 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
        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 S.Ct. at 2077. The

Supreme Court held in Evans v. Gore, 253 U.S. 245, 264, 40 S.Ct. 550, 557, 64 L.Ed. 887 (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, 83 L.Ed. 1289 (1939).




introduced to revise or replace the tax (one bill was actually enacted but it was struck down on unrelated state
constitutional grounds).

                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.

                                                       2
        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, 69 L.Ed.

1067 (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, 59 S.Ct. 838 ("to the 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, 69 L.Ed. 1067, 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 their particular function in

government does not generate an immunity from sharing with their fellow citizens the material burden of the



                                                       3
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, 66

L.Ed.2d 392 (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 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

[v. Town of Highland Lake, Ala., 880 F.2d 348 (11th Cir.1989)] needs to be interred. We do so now.

Recognizing that it was dealt a fatal blow by [the Supreme Court's decision in] Collins [v. City of Harker

Heights, Texas, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)], 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


                                                       4
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.

1917, 1921-22, 104 L.Ed.2d 526 (1989); accord, e.g., Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997,

2017, 138 L.Ed.2d 391 (1997) ("We do not acknowledge, and we do 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 [v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39

L.Ed.2d 147 (1974)] 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 Rodriguez de Quijas, 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 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.



                                                       5
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, 39 L.Ed.

1108 (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 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

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


   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.

                                                       6
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 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


    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

                                                         7
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 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.




                   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.
    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.

                                                        8
