A group of federal judges who charge that Congress violated the Constitution by withholding pay increases will get a hearing before the full U.S. Court of Appeals for the Federal Circuit.
The Federal Circuit today issued an unsigned order directing the parties in Beer v. U.S. to file briefs on whether the Compensation Clause of Article III of the Constitution prohibits Congress from withholding periodic salary adjustments for Article III judges provided for in the Ethics Reform Act of 1989.
“The Court granted our petition for rehearing en banc and we look forward to presenting our merits arguments,” said Christopher Landau of Kirkland & Ellis, counsel to judges Peter Beer, Terry Hatter Jr., Richard Paez, Laurence Silberman, A. Wallace Tashima and U.W. Clemon.
In their petition, the six judges said they have “freely acknowledged” from the outset that they seek to overturn Williams v. U.S., a 2001 Federal Circuit decision holding that the future judicial salary adjustments established by the 1989 Ethics Reform Act are not “compensation” protected from diminishment by Article III. The Williams majority relied on the Supreme Court’s 1980 decision in U.S. v. Will, which the Williams majority interpreted to establish “the sweeping proposition that a statutory promise of a future judicial salary adjustment—no matter how definite or precise—never falls within the scope of Article III unless and until a judge actually earns or receives the adjusted salary,” according to the judges.
That interpretation is wrong, they argue. “Because the Ethics Act of 1989 establishes a regime of self-executing, non-discretionary judicial salary adjustments, in return for drastic limitations on outside income, judges are entitled to expect that they will receive those adjustments, and Congress has violated Article III by withholding those promised adjustments,” the petition states.
The act entitles judges to a salary adjustment in any year in which federal civil servants receive such an adjustment. Federal civil servants, in turn, are entitled to automatic annual cost-of-living adjustments unless the President determines that one of two narrow exceptions applies. In 1995, 1996, 1997, and 1999, federal civil servants received salary adjustments, but Congress withheld the corresponding adjustments due to judges under the 1989 Act.
The United States opposed the judges’ petition for rehearing en banc. The government argued that the Federal Circuit in Williams correctly applied the Supreme Court’s Will decision and that decision remains the law of the land. The Compensation Clause, it contends, protects judges’ reasonable expectations concerning their current salaries, not expectations concerning future salaries not yet in effect.
Arguments are expected in the fall.