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Federal judges take their own case to court – for more pay

The Constitution bars Congress from reducing a judge’s pay. But Congress has excluded judges from receiving promised inflation adjustments in six of the past 16 years.

By Staff writer / April 11, 2009

Eight federal judges are suing the US government for back pay in a potential landmark case that raises fundamental questions about how the Founding Fathers sought to protect an independent judiciary.

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Five US district judges and three appeals-court judges charge in their suit that Congress reneged on a pledge to provide America's jurists with automatic cost-of-living increases. Congress has excluded judges from receiving inflation adjustments in six of the past 16 years.

The judges say the action violates the Constitution's compensation clause, which bars Congress from reducing a judge's pay.

The lawsuit, Beer v. US, is being litigated in the Court of Federal Claims in Washington. Government lawyers filed their response this week. In it, the government says the same issue was fully litigated in a 1997 case called Williams v. US, and the judges who filed that complaint lost.

"Plaintiffs are barred from relitigating the essential dispute in this case," writes Justice Department lawyer Brian Simkin in a brief asking that the case be dismissed.

What makes Beer v. US particularly significant is that the plaintiffs are federal judges claiming a constitutional violation. It is generally a judge's job to follow the legal precedents set down by prior courts and higher courts. But that is not the judges' approach in Beer v. US.

"Plaintiffs respectfully submit that the Williams decision is wrong," the judges' complaint says in part. "At the very least, plaintiffs have a good faith belief that Williams should be reversed."

The case is also worth watching because the ruling judges themselves will have a direct financial interest in the outcome. The law authorizes judges to hear such cases when there is no other provision for appointment of a disinterested adjudicator.

It is unclear how the trial judge or an appeals-court panel may rule in the case. But the complaint seems aimed at the US Supreme Court, where seven of the nine justices have made public statements urging congressional action on judicial compensation.

Compensation has long been a sore point among judges in the US. Chief Justice John Roberts has repeatedly asked Congress to boost salaries.

"I suspect many are tired of hearing it, but I must make this plea again – Congress must provide judicial compensation that keeps pace with inflation," Chief Justice Roberts said in his December 2008 year-end report on the federal judiciary.

"Judges knew what the pay was when they answered the call of public service," he said. "But they did not know that Congress would steadily erode that pay in real terms by repeatedly failing over the years to provide even cost-of-living increases."

Judicial pay increases, and even requests for cost-of-living adjustments, can be a tough sell given the current economic crisis. Many Americans are happy just to have a job – and a paycheck.

But the judiciary depends on an inflow of talented individuals from a pool of high-earning workers. Once on the bench, they are expected to hold themselves above and apart from financial concerns while tackling some of America's most difficult and divisive issues.

Currently, district judges earn $174,000 a year. Federal appeals-court judges are paid $184,500 a year, while associate justices at the Supreme Court make $213,900. The chief justice is paid $223,500.

Supporters of pay increases say flat or declining judicial compensation threatens the independence of the judiciary and the quality of American justice. The best legal minds, they say, will opt for million-dollar careers in the private sector.

Sixty-three judges have left the federal bench since 2000, according to James Duff, director of the Administrative Office of the US Courts. Eighteen of them left before qualifying to receive any pension or annuity benefits, he says.