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.




$700 Billion for "Stimulus" - Apparently None Left For Judiciary

We've had our disagreements with the ABA, in particular with inappropriate policy positions the Association has taken on issues that have divided their membership. (MassTortDefense has high hopes for the leadership of incoming President Steve Zack, an outstanding lawyer from Florida.)

But here is one position we heartily endorse.  The American Bar Association is urging the Supreme Court to take a suit brought by a group of current and former federal judges who are seeking cost-of-living salary raises.  Beer, et al. v. United States, No. 09-1395 (U.S. S.Ct.).  The judges are seeking back pay and declaratory relief because they never received the cost-of-living salary increases that they are entitled to under the Ethics Reform Act of 1989.

The American Bar Association last week filed an amicus brief urging the Supreme Court to rule in Beer vs. U.S. on whether Congressional denial of cost-of-living salary adjustments for federal judges compromises judicial independence, violating the Constitution. Although the Ethics Reform Act of 1989 was intended to establish automatic annual COLAs for federal judges, Congress has refused to authorize these “non-discretionary” raises six times, notes the ABA brief. While inflation-adjusted wages for the average American worker have risen 19.5 percent since 1969, salaries for federal district judges have dropped by 27 percent over the same period. Judicial pay is now so low as to seriously compromise the independence that life tenure was intended to ensure and may becoming insufficient to attract and retain well-qualified jurists from diverse economic and societal backgrounds, argues the ABA. In many cases, former judicial law clerks earn more in salary and bonuses in their first year in private practice than the federal judges for whom they clerked.

While judges know about this pay scale when they answer the call of public service, they certainly could not anticipate that Congress would steadily erode that pay in real terms by repeatedly
failing over the years to provide even cost-of-living increases.