January/February 2015: Federal Judges Score a Pay Adjustment, Quietly

Washington Watch | January/February 2015
By Bruce Moyer

Long-standing precedent has been overturned, Constitutional history made, and the size of federal judicial salaries enlarged over the past year—largely beneath the public radar.

All of this has come about through a series of court decisions, stretching from the U.S. Court of Federal Claims to the U.S. Supreme Court, that have permitted the federal judiciary to win a long, protracted battle over its pay that centered on the guarantee of judicial independence and the Constitution’s bar against reductions in the compensation of federal judges. Most remarkably, the outcome has been achieved in the judiciary’s own arena: the federal courtroom. There, beginning with a lawsuit in 2009 by a small group of senior-status and retired federal jurists, the federal judiciary has won a series of adjustments in its pay, as guaranteed by a 1989 law and affirmed by the Constitution.

Many members of Congress are only today waking up to the fact that federal judges have prevailed in a string of court decisions that caused their salaries to spike 14 percent from 2013 to 2014. Prior to that time, the paychecks of House members and senators were equal to those of federal district judges, although there was never a statutory link. But today the salaries of members of Congress are less. Today a federal district judge makes $199,100, while a member of Congress earns $174,000.

Decisive court decisions have struck down prior congressional freezes on judicial pay as illegal and restored federal judicial salaries to what they would have been absent the freezes. Those decisions have affected the pay of all 1,330 federal judgeships established under Article III of the Constitution, which includes those in the district, appeals, and international trade courts, as well as the Supreme Court. The decisions also have raised the pay of many non-Article III judges, including magistrates, and those in the tax, bankruptcy, and claims courts.

The Legal Path to Restoration of Prior Pay Adjustments
The judges’ initial winning lawsuit, Beer v. United States, centered on the validity of congressional actions that blocked “automatic” pay adjustments for federal judges despite a 1989 law that purported to guarantee the adjustments. (Congress, in previously blocking the judicial pay adjustments, also blocked adjustments for themselves, largely for political reasons.) The filing of the lawsuit by the six plaintiff judges in Beer in 2009 did not mark the first time that judges had challenged freezes in their pay. Over the past three decades, judges twice before in five different federal courts had challenged the denial of automatic pay adjustments. Each time they lost. Meanwhile, efforts in Congress to secure legislative relief that restored those adjustments also fell to defeat, despite repeated campaigns by the Federal Bar Association and others, along with public appeals for higher pay by Chief Justice Rehnquist and later Chief Justice Roberts.

Continued tenacity and brilliant advocacy finally brought about a different outcome in the landmark Beer decision. There the U.S. Court of Appeals for the Federal Circuit overturned prior law and declared the pay adjustment-blocking actions of Congress unconstitutional. In reaching that decision, the Federal Circuit overruled its decision in Williams in 2000, which had relied on a 1980 Supreme Court decision denying judicial pay adjustments because the congressional blocking statutes were enacted before the adjustments were to take effect. A subsequent appeal of the Williams decision led to the Supreme Court’s denial of review, but three justices (Breyer, Scalia, and Kennedy) filed an elaborate dissent, dissecting the 1989 statute that established the annual cost-of-living adjustments and explaining why the Compensation Clause of the Constitution was violated by Congress’s actions.

Nine years later, the rationale of the Breyer-Scalia-Kennedy dissent in Williams served as the winning blueprint for the judges’ victory in Beer before an en banc panel of the Federal Circuit. (The FBA twice filed supportive amicus briefs during the Beer litigation.) Ultimately (and not surprisingly), the Supreme Court denied review in Beer, finalizing the outcome. Since then, groups of judges have successfully brought a handful of lawsuits, applying the outcome of Beer to all Article III judges as a class and, more recently, to various groups of Article I judges.

Congressional Reaction
Members of Congress are inquiring how much these raises will cost. According to the Congressional Budget Office (CBO), the bill will be considerable. The CBO in October announced that the federal government will spend a collective $1 billion more to pay its judges over the next 10 years, including the costs of the backpay awards. Most of the tab represents “mandatory spending,” meaning Congress will have no choice but to pay the tab because it is required by statute. Over this time period, an additional $190 million will need to be appropriated with discretionary funds to pay for the rise in the salaries of non-Article III judges.
Given the widespread distrust of government, some Americans may see the judicial pay litigation as little more than self-interested, activist judges mandating themselves a pay raise. But the judges presciently turned to an ancient common-law doctrine to validate their actions: the “Rule of Necessity,” which permits judges with an interest in a case before them to still hear and decide the case if it could not otherwise be heard elsewhere. Whether that explanation convinces members of Congress unhappy with their smaller paycheck remains to be seen.

Bruce Moyer is government relations counsel for the FBA. © 2015 Bruce Moyer. All rights reserved.

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