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Major victory – and pay raises – for U.S. judges

After battling for years to get a pay raise that they say Congress had once promised them, six federal judges finally won in a specialized federal court on Friday.  If the ruling withstands a likely trip to the Supreme Court, those judges – and presumably others – will get annual cost-of-living increases that have been specifically vetoed by Congress.   The ten-to-two decision by the Federal Circuit is here.

The Court ruled that, in a 1989 law upon which the judges have been relying, Congress triggered the judges’ right under the Constitution not to have their pay level diminished.  The Compensation Clause itself, the decision said, creates “basic expectations and protections” on judges’ pay.

Thus, it concluded, “in the unique context of the 1989 act, the Constitution prevents Congress from abrogating that statute’s precise and definite commitment to automatic yearly cost of living adjustments for sitting members of the judiciary.”

In reaching its decision, the Federal Circuit overruled a decision it had reached in 2001 – one that the Supreme Court had refused to disturb in 2002– and it found that it was not bound by a 1980 decision of the Supreme Court.  Both of those rulings had gone against judges claiming that they were unconstitutionally denied pay raises.

The Supreme Court has played a continuing role in this prolonged constitutional fight, and in June of last year told the Fedeeral Circuit to decide whether the six judges’ case (the latest of several such cases) should be dismissed on the theory that it was barred by the Federal Circuit’s 2001 precedent.

The Justices issued that order rather than review a then-pending appeal by those judges, taking the advice of the Justice Department.  Justice Antonin Scalia dissented, and Justice Stephen G. Breyer said the Court should have heard the judges’ appeal.  (The Court’s June 28 order last year is here.) In February, the Federal Circuit had ruled that the judges’ claim was not barred by its decision in Williams v. United States – a case in which they had a legal interest.  The February decision can be read here.  In that same decision, however, the Federal Circuit concluded that it was still bound by that prior precedent, and again rejected the judges’ claim.  After that, the Federal Circuit granted en banc review, before a twelve-judge court, resulting in Friday’s decision.

The key to the decision – aside from the constitutional protection for judges’ pay – was the Ethics Reform Act of 1989, which overhauled pay and ethics rules for all three branches of the federal government.  For judges, the Act limited the outside income they could earn and limited the honoraria they could accept.

At the same time, the Act provided for automatic cost-of-living adjustments (technically labeled “COLAs”) to assure that judges’ existing salaries not be eroded by a failure to keep up with inflation.  Whenever other federal employees get a COLA, the law specified, judges would, too.

Such pay raises could only be blocked if the President declared a national emergency or serious economic conditions.

Despite the promise, Congress in several later years refused to allow the judges’ pay to rise, even though other federal employees received COLAs.  That led to a court fight by federal judges, which they lost in the Williams decision. The Circuit Court said it had to rule that way because of the Supreme Court’s 1980 decision in United States v. Will.

The Will decision declared that Congress had the authority to take away promised pay raises from judges, if those had not yet taken formal effect.  The Constitution, according to that ruling, only protects judges’ pay that has been “due and payable.”   The Supreme Court, over three Justices’ dissent, denied review of Williams in 2002.

In the meantime, in 2001, Congress passed a new law to nail down the rule that judges could get a cost-of-living pay raise only if Congress explicitly approved.   Congress did vote to allow judges their higher pay in several years after that, but not in 2007 and 2010.

The six present and former federal judges still involved began their lawsuit in January 2009.  They asked for back pay and for added amounts that they argued they were entitled to have for some of the earlier years.

That is the case that last week was back before the Federal Circuit, sitting en banc, ending the judges’ frustration with a historic victory that probably sets the stage for review by the Supreme Court.  The Justice Department has been firmly opposed to the judges’ claim, and thus is almost certain to seek review by the Justices.  The Supreme Court, though, has the option of simply denying review, but that seems unlikely.

In dealing with the Supreme Court’s Will decision in 1980, the Circuit Court said that case involved a different federal law on judges’ pay (passed in 1975) that did not create expectations on the judges’ part, and it thus was different from the 1989 law that did create such expectations.   The 1989 law involved “a mechanical, automatic process” that judges would have seen as protecting their rights under the Compensation Clause, the opinion said.

The court commented: “A prospective judicial nominee in 1989 might well have decided to forego a lucrative legal career, based, in part, on the promise that the new adjustment scheme would preserve the real value of judicial compensation.”

The promise of a COLA increase, the opinion added, gained more significance because of the provisions of the 1989 law that banned judges from earning outside income and honoraria, on which many judges had been relying to offset their failure to get routine pay raises.

The fact that the Will precedent did not control the interpretation of the 1989 law in a way that resolved this case, the Circuit Court said, meant that it had to go on and decide if the post-1989 denials of COLAs for judges violated the Constitution.   The court found that it did.

The constitutional clause, the court stressed, does not guarantee federal judges a specific salary, and does not guarantee them periodic increases in their salaries.  But, when Congress promises protection against having judges’ real pay decline, and does so in a definite way, it is unconstitutional for the lawmakers to frustrate judges’ expectations that the promise will be kept, the opinion said.  Their expectancy, it added, was about something that would happen in the future.

If Congress wants to amend the 1989 law, the opinion said, it can do so, but it would be constitutionally entitled to do so only as to the future.  “Any restructuring of compensation maintenance promises cannot affect currently-sitting Article III judges,” the court concluded.

The Circuit Court, in the final legal point of the opinion, said that the 2001 law requiring specific congressional approval for any COLA for judges would be satisfied by its actual terms, as applied to the 1989 law.  In fact, it found, the 1989 COLAs satisfy the requirements of the underlying law that Congress had amended in 2001.

The Circuit Court ordered the case back to the Court of Federal Claims to calculate what money damages are to be awarded to the six judges in the case.  Although it said nothing about other federal judges, it did rule that several of the specific denials of COLAs were unconstitutional, leaving the impression that some other judges serving then might also have claims.   Because of statute of limitations considerations, the decision said, the six judges’ damages award must be backdated only to January 13, 2003.

The opinion was written by Chief Judge Randall R. Rader, and joined by nine other judges.  Four of those judges also wrote or joined separate concurring opinions.

Circuit Judge Timothy B. Dyk, joined by Circuit Judge William C. Bryson, dissented.

Recommended Citation: Lyle Denniston, Major victory – and pay raises – for U.S. judges, SCOTUSblog (Oct. 7, 2012, 12:48 PM),