WASHINGTON — With the nation teetering on an economic "fiscal cliff," federal judges may soon force Congress to dedicate possibly millions of dollars to what some of those same judges must consider a worthy cause: their own salaries.
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 all of the rest of the federal judges who also missed out on their cost-of-living increases get what they feel is their due.
It's a touchy subject: One set of federal judges asking another set to essentially approve salary increases for everyone. Though, of course, Congress also ultimately controls its own salaries.
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 judicial salaries to ensure inflation wouldn't erode the value of those salaries over time.
U.S. District Judge Royal Furgeson Jr. of Texas, one of the judges 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."
But instead of following through, Congress withheld those cost-of-living increases in 1995, 1996, 1997, 1999, 2007 and 2010, while giving other federal employees their promised increases. "In our view, the exclusion is contrary to the commitment to us, so we have sued to enforce it," said Furgeson, a senior judge who also serves as the president of the Federal Judges Association.
The Constitution, the judges say, is on their side. The Constitution says compensation for federal judges "shall not be diminished during their continuance in office," so the judges say denying them a promised cost-of-living increase violates the Constitution's Compensation Clause.
And now a federal appeals court is 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 so they can get the missed salary adjustments for more than 1,000 other current and former federal judges who court papers say would have been eligible.
Their success will depend on whether the Beer decision holds up if challenged at the Supreme Court. So far, the Justice Department has not yet decided whether to appeal the federal circuit court'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."
And the payout could cost the government 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. Court 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 when necessary has not been a serious issue for years.
The federal courts operate under, and have previously cited, the so-called 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 the black-robed brethren on salary and benefit issues, including in the current case that is likely going to the Supreme Court. The Federal Circuit originally dismissed the judges' complaint about their not getting their promised cost-of-living increase, 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 itself in a 1980 case called 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 into judicial salaries. "As the justices demonstrated in the Will case, judges are able put their personal interests aside when deciding a case if necessary," said Gray of the judicature society, an independent membership organization that works to maintain 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 to no avail, 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."
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