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

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.

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.

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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.

Mr. Duff declined to discuss the pending lawsuit. "We continue to believe and hope that the best solution to this is a legislative one," he says.

The judicial pay problem is particularly acute in major urban areas, Duff says: "$174,000 a year is still a great salary in Booneville, Ky., where my family is from. But in New York or Washington or San Francisco, it is not [a great salary] when you are raising a family and trying to send children to college and so forth."

In the top US cities, a judge's former law clerk may earn more in the first year of private practice than the judge he or she clerked for. Many government lawyers also earn significantly more than federal judges.

In 2007 testimony before Congress, Justice Samuel Alito explored the issue by referring to an ad for new lawyers at the Securities and Exchange Commission. The advertised pay for a supervisory attorney at the SEC was $26,000 more than a federal judge was earning at the time. The pay for a trial attorney was $10,000 more.

"It would be reasonable to conclude," Justice Alito said, "that a district judge who presided over an SEC case may be the lowest-paid attorney in the courtroom."

Federal judges are appointed for life, in part because the Founding Fathers wished to create a branch of government largely insulated from political pressures. The Founders were also concerned about potential financial pressures, so they included in Article III of the Constitution a mandate that Congress not reduce a judge's pay.

For the past 20 years, Congress has linked cost-of-living and salary increases for the judiciary with its own compensation. Senators, members of the House, and US district judges all make the same amount – $174,000.

The problem with this approach, analysts say, is that instead of insulating judges from political influence, it holds them hostage to the lawmakers' own fear of political repercussions for granting themselves a pay raise.

The Beer v. US complaint says that in 1989, Congress established a system for judges to receive automatic annual salary adjustments. The adjustments were to be equal to adjustments granted to federal civil servants.

But Congress has blocked the adjustments for judges six times.

In 1997, a group of federal judges filed a class-action lawsuit, Williams v. United States, claiming a constitutional right to receive the cost-of-living adjustments. For Congress to deny the cost-of-living adjustments amounted to a diminution of judicial pay in violation of the compensation clause, they argued.

The federal judge hearing the case agreed, but an appeals-court panel threw the suit out. The appeals court ruled that because the judges hadn't actually received a paycheck at the higher, adjusted amount, Congress was still free to renege on its earlier pledge of future salary increases.

In November 2001, Congress responded to the Williams lawsuit by amending the existing law to prohibit automatic cost-of-living or other salary adjustments without specific year-to-year authorization by Congress.

A few months later, the judges asked the Supreme Court to take up their case. The high court declined, leaving the appeals-court decision in place.

Three justices dissented from the high court's decision not to hear the Williams case. "I believe the judges have raised an important constitutional question, the answer to which at present is uncertain," Justice Stephen Breyer wrote in a dissent joined by Justices Antonin Scalia and Anthony Kennedy.

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