Opinion

Alison Frankel

Federal Circuit: Congress can’t renege on pay promises to judges

By Alison Frankel
October 10, 2012

The Founding Fathers spent quite a lot of time thinking about how, and how much, federal judges should be paid. In fact, according to Chief Judge Randall Rader of the Federal Circuit Court of Appeals, writing Friday for a majority of the en banc appeals court in Beer v. United States, the men who wrote the Constitution considered judicial pay to be almost as important to the independence of the judiciary as lifetime tenure. This was no incidental matter either; among the grievances the colonists listed in the Declaration of Independence was King George III’s rein on the judiciary, which he controlled through pay and job security.

At the constitutional convention in 1787, James Madison proposed pegging judges’ pay to the price of a commodity like wheat. That was considered too volatile a standard. Instead, Rader wrote, the framers adopted the Compensation Clause, which holds that Congress has the power to increase judicial compensation but not to cut judges’ pay. The Federalist Papers explained that the clause assures every federal judge “of the ground upon which he stands” so that he might “never be deterred from his duty by the apprehension of being placed in a less eligible situation.”

If the framers were alive today, they’d ruefully acknowledge their powers of prophecy. The gap between what good lawyers can make in private practice and what they’d earn on the bench has never been wider, with the consequence that some wise and well-qualified candidates can’t afford to become federal judges and some judges can’t afford to stay in office. Chief Justice John Roberts of the U.S. Supreme Court has made judicial pay a dominant theme of his administration, warning that when trial courts are paid less than first-year associates in private practice, the federal judiciary is in crisis.

That’s the context of the Beer case, in which U.S. District Judge Peter Beer of Louisiana, Senior Judge Laurence Silberman of the District of Columbia Court of Appeals and four of their federal-court colleagues sued the United States, claiming that when Congress refused to authorize statutory cost-of-living raises for federal judges, it violated the Compensation Clause. In Friday’s ruling, 10 judges of the Federal Circuit agreed that Congress was prohibited from blocking raises that had been promised to judges in a 1989 law. That was hardly a foregone conclusion: The en banc Federal Circuit had to distinguish the facts of this case from those underlying the Supreme Court’s 1980 ruling in U.S. v. Will, in which a split court found Congress did have the power to block judicial pay raises. The appeals court also had to overrule the three-judge Federal Circuit panel that applied Will to the 1989 law at issue in this case and held in a 2001 decision called Williams v. U.S. that Congress could withdraw the promised cost-of-living adjustments. According to Christopher Landau of Kirkland & Ellis, who represented the six judges at Silberman’s invitation, the Federal Circuit ruling should raise the base pay of federal judges by about $25,000.

The background of the case is so complicated that Landau described it as “a law school exam on constitutional law.” In the 1970s and 1980s, judicial pay raises were an ad hoc affair, with Congress frequently authorizing raises but also often passing stopgap laws to block previously enacted pay hikes. In the Supreme Court’s Will decision in 1980, the court ruled that those blocking laws were constitutional as long as Congress reversed the raises before judges actually received the compensation they’d been promised; the dangled raises, according to the court, weren’t certain enough to amount to constitutionally protected compensation.

In those days, judicial pay was so relatively low, according to Rader’s ruling in Beer, many federal judges earned outside income through teaching and delivering speeches. Concerned that outside engagements might be compromising judges’ independence, Congress passed the 1989 ethics law, which restricted outside earnings but, to make up for the lost income, codified annual cost-of-living raises for judges. When Congress subsequently enacted blocking legislation in the 1990s to bar the promised judicial raises, 20 judges filed a class action based on the Compensation Clause. After the class was certified, the trial court concluded that the blocking laws were unconstitutional, but a divided Federal Circuit overturned the finding in 2001, ruling that, as in Will, promised raises weren’t protected by the Compensation Clause, since Congress wasn’t actually cutting judges’ pay.

Here’s where things really get complicated. In 2001, Congress passed a new law, reviving a 1981 statute that said no judicial pay raises could go into effect without specific legislation authorizing them. In 2007 and 2010 judges were denied their scheduled pay raises under that 2001 law.

Meanwhile, Landau’s clients filed their suit in the U.S. Court of Common Claims, arguing that Congress improperly withheld pay hikes established in the 1989 law and demanding an adjustment in their base pay dating back to the 1990s plus back pay dating back to 2003, the boundary under the six-year statute of limitations.

As a preliminary matter, Landau said, the Beer judges had to establish that their right to sue hadn’t been extinguished by the Williams class action, since his clients were members of the class. After that question went all the way to the Supreme Court, the Federal Circuit ultimately decided that because Landau’s clients hadn’t received notice in the Williams case, they had the right to bring their suit. Another preliminary matter was the right of the Federal Circuit to hear the case, since the judges’ decision on pay would, of course, affect them. The appeals court invoked the Rule of Necessity and claimed jurisdiction.

This time around, the judges said the precise, automatic raises promised in the 1989 law were different from the ad hoc pay raises addressed in the Supreme Court’s Will ruling. Judges expected the raises promised in the 1989 law, so, according to the Federal Circuit majority, those raises became part of the ground on which judges stood, to echo the framers. Or, in other words, constitutionally protected compensation.

If you followed the facts carefully, you’re probably wondering about that 2001 law that seemed to contradict the 1989 legislation. But that 2001 law, the Federal Circuit ruled, revived a 1981 statute. And under the particular language of all of these laws, the Federal Circuit majority said that because the 1989 law superseded the 1981 law, it prevails.

“At a pretty broad level it’s a simple proposition,” said Landau. “The Constitution protects judicial pay in order to protect judicial independence. Congress has to keep its statutory promises to judges.”

The majority said its ruling comported with Will. In a concurrence, three judges called for the Supreme Court to overturn its Will ruling, but in a dissent, two judges said the Beer decision, while perhaps reaching a just result, resorted to tortured reasoning to repudiate Will. I called the Justice Department, which represented the United States at the Federal Circuit, to ask if it plans to file a petition for certiorari and give the Supreme Court a chance to revisit Will, but I didn’t get an immediate response.

Landau said the ruling immediately applies only to the six plaintiffs in the case, but for the rest of the judiciary it should be a simple matter of filing a claim. I asked if he expected an especially warm welcome the next time he shows up in federal court, considering that he has won a 10 percent raise for the judges he appears before. He laughed. “One of the nice things about our judicial system is that judges take seriously their obligation to decide things as they see them,” he said. “I don’t have any illusion that will change.”

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