With the nation teetering on the “fiscal cliff,” federal judges may soon force Congress to dedicate possibly millions in judicial back pay.
The U.S. Court of Appeals for the Federal Circuit in October ordered Congress to pay six federal judges years of back pay. Now, a group of federal judges is pushing a class-action lawsuit to ensure that all the other federal judges who missed out on cost-of-living increases get their due.
It’s a touchy situation with one set of federal judges asking another set to approve salary increases for everyone.
Congress in 1989 limited federal judges’ ability to earn money outside of their work on the bench and in exchange provided what was supposed to be automatic cost-of-living increases to ensure that inflation wouldn’t erode the value of those salaries.
U.S. District Judge Royal Furgeson Jr. of Texas, one of those seeking class-action status, called that a “binding commitment” made by the legislative branch for the judicial branch to “receive the same yearly COLAs awarded to all other federal employees, to keep us even with inflation.”
Congress withheld those increases in 1995, 1996, 1997, 1999, 2007 and 2010, while granting them to other federal employees. “In our view, the exclusion is contrary to the commitment to us, so we have sued to enforce it,” said Furgeson, president of the Federal Judges Association.
The Constitution is on their side, judges say, arguing that denying them the increase violates the compensation clause.
A federal appeals court is also on their side.
“Congress’ acts in 1995, 1996, 1997 and 1999 constitute unconstitutional diminishments of judicial compensation,” the appeals court said in its October order, adding that money also was due that had been withheld in 2007 and 2010. “As relief, appellants are entitled to monetary damages for the diminished amounts they would have been paid if Congress had not withheld the salary adjustments.”
However, the appeals court’s decision only applied to those judges who sued in the Beer v. United States case, so Furgeson and another group of judges are trying to get a class-action lawsuit approved for more than 1,000 other current and former federal judges who court papers say would have been eligible for the increases.
Their success will depend on whether the Beer decision holds up if challenged at the Supreme Court. The Justice Department has not announced whether it will appeal the Federal Circuit’s ruling to the Supreme Court, a spokeswoman said.
The entire federal bench would benefit from the success of a class-action lawsuit, which would include “all persons who are serving or who served as United States judges under Article III of the Constitution.”
The payout could cost millions. The current salary for district court judges is $174,000, and for circuit court judges, $184,500. According to the American Bar Association, if all of the promised cost-of-living adjustments had been paid, circuit and district court judges’ salaries would be approximately $262,000 and $247,000. The Administrative Office of the U.S. Courts adds that a district judge who has served since 1993 has “failed to receive a total of $283,100 in statutorily authorized but denied pay,” and that total would be even higher for circuit judges.
Cynthia Gray, director of the American Judicature Society’s Center for Judicial Ethics, said judges’ presiding over cases involving their own salary and benefits has not been a serious issue for years.
The federal courts operate under, and have previously cited, the rule of necessity, which comes from English jurist Sir Frederick Pollock’s “A First Book of Jurisprudence for Students of the Common Law.” It says that “though a judge had better not, if it can be avoided, take part in the decision of a case in which he has any personal interest, yet he not only may but must do so if the case cannot be heard otherwise.”
That means, Furgeson said, judges have to “hear cases, even though they might have an interest of some kind, if their disqualification would serve to deny access to the courts.”
Gray said judges have not had any advantages in court on these salary issues. Federal judges several times have thrown out lawsuits by fellow judges on salary and benefit issues, including in the current case. The Federal Circuit originally dismissed the judges’ complaint, but the Supreme Court sent the issue back to the appeals level, at which time the Federal Circuit voted to grant the judges their back pay.
The Supreme Court in a 1980 case, United States v. Will, ruled that Congress did not have to give judges cost-of-living adjustments if lawmakers take it away before it’s added to judicial salaries. “As the justices demonstrated in the Will case, judges are able to put their personal interests aside when deciding a case if necessary,” said Gray of the judicature society, an independent membership group that focuses on the integrity of the courts.
The victory in the Beer case is one of the few times judges have won on this issue, said Harry P. Susman of Houston, the lawyer representing the judges seeking a class action. They’ve been trying to get Congress to fix their salary problems for years, so going to court is their only option, he said. “It’s a tough situation.”
Furgeson noted that federal judges don’t give up their legal rights when they take the bench.
“When there is no other alternative,” he said, “we judges, like all other citizens, should be entitled to our day in court.”