Federal judges pursue judicial pay dispute in appeals court

Eight federal judges are continuing to press their claim that Congress violated the Constitution's compensation clause when it failed to honor promised judicial salary increases in five separate years between 1995 and 2007.

A federal claims court judge threw out the judicial pay lawsuit on Oct. 16. Now the judges are asking for an expedited appeal before the entire Court of Appeals for the Federal Circuit.

Aside from the constitutional implications and growing complaints of low judicial pay, the dispute is interesting because the judges acknowledge that under the existing legal precedent – a 2001 decision called Williams v. United States – there is no way they can win their case. For the judges to prevail, the 2001 Williams precedent must be overturned.

The judicial pay dispute stems from congressional passage of the Ethics Reform Act of 1989. In it, Congress placed restrictions on a federal judge's ability to earn outside income. At the same time, Congress established a system of cost-of-living adjustments tied to compensation increases for other federal workers.

The system was honored for several years, but Congress refused to abide by the pay increase mechanism in 1995, 1996, 1997, 1999, and 2007.

The heart of the dispute is whether these actions by Congress amount to a diminishment of judicial pay. Article III of the Constitution commands that federal judges "shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office."

In 2001, the Court of Appeals for the Federal Circuit ruled in the Williams case that judges are not constitutionally vested in any salary increase until the judge actually receives the adjusted salary.

Under that ruling, Congress is under no constitutional obligation to follow through on promised salary increases.

The eight judges disagree. They argue that upon passage of the Ethics Reform Act, the nation's federal judges had a reasonable expectation in promised future salary adjustments. It is at that point that the judges acquired a vested interest in the salary increases, their lawyers argue.

The strategy in the new case, Beer v. United States, is to invite the appeals court to overturn the 2001 Williams decision and rule for the judges. Failing that, lawyers for the judges are asking the appeals court to issue a summary affirmance of the lower court's dismissal. That would open the way for the case to move quickly to the US Supreme Court.

"Plaintiffs do not deny that their claims are foreclosed by the Williams precedent," writes Christopher Landau in a candid appeals court petition filed on behalf of the judges. "Under that precedent, the decision below [dismissing the case] is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists."

Mr. Landau writes that unless the entire Federal Circuit appeals court is prepared to overturn its Williams precedent, "plaintiffs would like to proceed expeditiously to the Supreme Court, and avoid any further unnecessary and unfair delay."

The plaintiff judges in the case, Beer v. US, are US District Judge Peter Beer, retired US District Judge U.W. Clemon, US District Judge Terry Hatter, US District Judge Thomas Hogan, Federal Appeals Court Judge Richard Paez, US District Judge James Robertson, Federal Appeals Court Judge Laurence Silberman, and Federal Appeals Court Judge A. Wallace Tashima.

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