May 2012: The Beer Case: Less Filling, More Judicial Pay

Washington Watch | May 2012
By Bruce Moyer

The road to better pay for federal judges has been long and hard. Hopes that Congress would restore judicial pay to a fair level through a significant "catch-up" raise fizzled several years ago as the economy tanked. The situation has only worsened since then because of the tightening grip of deficit reduction and the broader inability of Congress to get much done

Over the past 20 years, the paycheck of a federal judge has eroded by 17 percent relative to inflation, based on the consumer inflation index. The erosion especially accelerated in years when Congress blocked the judges' pay adjustments from taking effect at all. (Congress each time also denied the adjustment to its own members.

Evidence of the impact of judicial pay erosion is adding up. During the past three years, a much larger-than-usual number of federal judges—92—retired to take senior status. Some experts believe that judges were motivated to retire by the greater rewards of their retirement pension, compared to their relatively stagnant base salary

Looking ahead, the most promising path for judges to correct the judicial pay situation may ultimately lie through the courts themselves by challenging Congress' actions blocking "automatic" raises from taking effect. Three times over the past three decades and in five different federal courts, judges have challenged the congressional denial of automatic pay adjustments as inconsistent with the Compensation Clause of the Constitution, which prohibits Congress from diminishing the compensation of federal judges. The judges' appeals have reached the Supreme Court three times, with the third appeal currently pending

The latest installment involves an appeal by eight active and retired federal judges in Beer v. United States. The litigation seeks nothing less than a move to overturn the Supreme Court's seminal decision in United States v. Will, (1980), which validated congressional statutes blocking judicial pay raises when those statutes were enacted before the pay raises took effect

Between Will and Beer came the Williams case, which was a class action suit brought by 19 federal judges, who challenged four different "blocking actions" by Congress in denying judicial pay raises in 1995, 1996, 1997, and 1999. Although the judges in Williams won at the district court level, the Federal Circuit Court of Appeals reversed and found the Supreme Court's holding in Will controlling. On appeal to the Supreme Court, the Court denied the judges petition for certiorari, but three justices (Justices Breyer, Scalia, and Kennedy) issued an elaborate dissent arguing why the Compensation Clause of the Constitution was violated by Congress' actions. The Williams dissent is considered by some as providing the blueprint for a winning appeal by the judges in Beer.

In 2009, that group of judges, led by Judge Peter H. Beer of New Orleans, La., filed suit in the Court of Federal Claims seeking back pay and declaratory relief for Congress' denial of pay raises. The judges based their claim on the same legal ground: that they as judges suffered an unconstitutional diminution of compensation by congressional blocking actions in 1995, 1996, 1997, 1999, and 2007. The judges did not deny that the facts and the law of their appeal were entirely controlled by Williams, but they argued that Williams was wrongly decided. The Court of Federal Claims dismissed the judges' lawsuit, and the Federal Circuit Court of Appeals narrowly affirmed the Claims Court on a 7-4 decision. This led the judges to the present appeal in the U.S. Supreme Court. (The Federal Bar Association and other groups filed an amicus brief in support of the judges' certiorari petition in 2010.

But first, the Supreme Court remanded the case back to the Federal Circuit Court for consideration of whether the Williams case precluded the Beer plaintiffs from initiating their appeal. In February, a three-judge panel of the Federal Circuit ruled that the judges were not precluded by Williams. At the same time, they pointed to their ruling on the merits in Williams

So what's next? The judges are likely to petition the Federal Circuit Court of Appeals for rehearing en banc, sensing the possibility that the full appeals court, some of whose members were not on the court at the time Williams was decided, may be ready to revisit its earlier 7-4 decision. And looking further ahead, at least two more justices of the Supreme Court could embrace the arguments underlying the dissent by three justices in the Williams case. These developments could potentially suggest another turn in the long road toward a fairer paycheck for federal judges.

Bruce Moyer is government relations counsel for the FBA. © 2012 Bruce Moyer. All rights reserved.

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