Federal Circuit to Rehear Judges' Pay Raise Issue

While our usual focus is mass torts, product liability, class actions, and complex commercial litigation, readers know we always keep an eye on issues affecting the judiciary.

Now comes word that the Federal Circuit has agreed to rehear en banc a panel decision to deny cost-of-living pay raises to a class of federal judges. Peter H. Beer,et al. v. U.S., No. 10-5012 (Fed. Cir. May 18, 2012).

Federal judges had filed a class action challenging the government's conduct in blocking duly passed and scheduled pay raises for judges, arguing this violated the Constitution's Compensation Clause, which holds that judges' pay “shall not be diminished during their continuance in office.” The judges argued that denying the planned salary increases in essence amounted to an unconstitutional decrease.

Earlier this year, a panel of the appeals court affirmed the dismissal of the proposed class action, relying in part on a prior case in which the court said Congress hadn't violated the Constitution's bar on judicial pay decreases by stopping automatic raises required by the Ethics Reform Act of 1989.

Plaintiffs sought rehearing, and a number of amici weighed in; for example the brief filed by the ABA noted that while partners at law firms have had average salaries rise 75% in real terms from 1969 to 2006, federal judges' pay actually fell in real terms. They are underpaid and overworked.

The court requested the parties to file new briefs addressing whether the Compensation Clause of Article III of the Constitution prohibit Congress from withholding the periodic salary adjustments for Article III judges provided for in the Ethics Reform Act of 1989, and whether the 2001 amendment to the act makes a difference.