By Erin Geiger Smith
Pay raises for federal judges is a cause célèbre whose top
advocate is the nation's top judge, Chief Justice of the United
States John Roberts. And, back in October, the movement for
higher judicial pay achieved a big victory. As On The Case reported, the Federal Circuit Court of Appeals ruled that the
six judges who brought a case demanding their authorized raises
were entitled to cost-of-living pay increases that would bump up
their base salary by about $25,000. Though that ruling was
limited to those six plaintiffs, we noted at the time that other
judges looking for similar pay increases could simply bring
their own suits and cite the Federal Circuit ruling.
Seven additional federal judges, including Marsha Berzon of
the 9th Circuit Court of Appeals and Allyson Duncan of the 4th
Circuit, did just that late last week, filing a class action in
the U.S. Court of Federal Claims. The proposed class would
include the more than 1,000 federal judges who have served
during the past six years. The suit, filed by attorneys at
Susman Godfrey, dedicates more than a page to the October
Federal Circuit opinion, styled Beer v. United States.
The Federal Circuit, sitting en banc, held that federal
judges were entitled to damages in the amount of pay raises they
should have received, under relevant law, since 2003. (The
statute of limitations bars any recovery from before then.) The
appeals court said damages should incorporate base salary
increases that should have been effected under a 1989 ethics law
but were blocked by Congress in certain years.
As the new complaint explains, the Beer ruling noted that
the 1989 Act "ensured that real judicial salary would not be
reduced in the face of the elimination of outside income and the
operation of inflation." It also said that future Congresses
could not renege on that commitment. If that sounds simple,
well, it's far from it. Our earlier report walked through the
quagmire that Congress created in granting and then rescinding
(in piecemeal fashion) the automatic raises, as well as the
Federal Circuit's need to comply with a 1980 U.S. Supreme Court
opinion, U.S. v. Will, that concluded Congress had the power to
block judicial pay raises in certain circumstances. Suffice to
say, Beer was a rather complicated decision.
Luckily for the new judicial plaintiffs, however, Beer is
currently the law of the land. Susman partner Harry Susman told
On the Case that a group of judges who had been following the
case approached him when it became clear that the Federal
Circuit would rule on the merits. (One of the plaintiffs, Royal
Ferguson, president of the Federal Judges Association and a U.S.
Senior District Court Judge in the Northern District of Texas,
is a long-time acquaintance of Susman.) Susman said he expects
the class action to lead the way in extending the benefits of
the Beer decision to other judges.
Of course, whether Beer will remain good law is far from
certain. The government has until at least early January to
appeal the decision to the Supreme Court. (The government
declined to comment both on the new suit and whether it will
appeal Beer; Christopher Landau of Kirkland & Ellis, who
represented the plaintiffs in Beer, said the government had not
indicated to him what it planned to do.)
The judges in the present case filed to stop the statue of
limitations from running, Susman said, while they continue to
watch how Beer plays out. The firm is representing the judges on
a pro bono basis.
(This post has been updated to give the correct title to
Chief Justice of the United States John Roberts.)
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