The U.S. Supreme Court on Tuesday sent a constitutional challenge involving federal judges’ pay back for a second look by the U.S. Court of Appeals for the Federal Circuit.
The Court’s action, which came in the term’s final “clean-up” order list, solved the mystery of what would happen to the judges’ petition for review, which had been filed in May 2010 and relisted 10 times for consideration in the justices’ conferences.
Eight current and former federal judges in Beer v. U.S. claimed that Congress in 1989 promised cost-of-living adjustments but failed to deliver them in 1995-97, 1999 and 2007. That failure, they argued, was an unconstitutional diminishment of judicial pay.
In January 2010, the Federal Circuit affirmed a ruling against the judges by the U.S. Court of Federal Claims. The Claims Court had held that the judges’ lawsuit was controlled by Williams v. U.S., a 2001 Federal Circuit decision rejecting the same argument.
The justices on Tuesday, with Justice Antonin Scalia dissenting, vacated the Federal Circuit’s January judgment and directed that court to consider a question of preclusion raised by the Office of the Solicitor General.
The government in its opposition to the Beer petition had argued that the Beer claims depend on an interpretation of the Constitution’s compensation clause that the Federal Circuit had rejected in Williams. “Because petitioners were members of the plaintiff class in Williams, they are bound by that decision. Accordingly, principles of issue preclusion bar petitioners from relitigating the Compensation Clause issue and thus provide an independent ground for dismissal of petitioners’ complaint.”
The justices in their order granting the Beer petition and vacating the Federal Circuit judgment, said, “The Court considers it important that there be a decision on the question, rather than that an answer be deemed unnecessary in light of prior precedent on the merits. Further proceedings after decision of the preclusion question are for the Court of Appeals to determine in the first instance.”
Justice Stephen Breyer said he would grant the petition and set the case for argument. Justice Scalia said he too would grant the petition and set it for argument. He dissented from the vacating of the lower court judgment, saying it has been his consistent view that the Court has no power to do that unless the judgment is in error or is cast in doubt by some subsequent factor. Justices Breyer, Scalia and Anthony Kennedy had dissented from the denial of certoriari in Williams in 2002.
Christopher Landau of Kirkland & Ellis represents U.S. District Judge Peter Beer and his colleagues. “We’re pleased the Supreme Court granted the petition and we look forward to presenting our arguments on the preclusion issue to the Court of Appeals and if necessary ultimately to the Supreme Court,” he said.