Federal judges go to court over pay

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.