FEDERAL JUDGES UPDATE: CLASS ACTION Report By Attorney Charles Jerome Ware

Attorney Charles Jerome Ware is renowned and consistently ranked among the best attorneys and legal counsellors in the United States. [GQ Magazine, The Washington Post, The Baltimore Sun, The Columbia Flier, USA TODAY, The Howard County Sun, The Anniston Star, The New York Times, et al.]

A Group of Federal Judges Plans To Seek Class Action Status In A Lawsuit Against the U.S. Congress Over Unpaid "Cost of Living" Raises.

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 of this year 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 problematic issue: 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.

Senior U.S. District Judge Royal Furgeson Jr. of Texas, President of the Federal Judges Association and 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 cost-of-living increase adjustments.

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 agrees with them.

"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.

[see, Beer v. United States, United State Court of Appeals, Federal Circuit, No. 2010-5012 (October 5, 2012): In an en banc review of a suit brought by current and former Article III judges claiming that Congress violated the Compensation Clause by withholding the salary adjustments established by the Ethics Reform Act of 1989, decision of the Court of Federal Claims dismissing the complaint is reversed, remanded, and Williams v. U.S. is overruled where, in the unique context of the 1989 Act, the Constitution prevents Congress from abrogating that statute's precise and definite commitment to automatic yearly cost of living adjustments for sitting members of the judiciary. Further, because the 1989 Act was enacted after Section 140, the 1989 Act's automatic cost of living adjustments control; caselaw.findlaw.com/summary/opinion/us-federal-circuit; www.abajournal.com/news/article/ December 14, 2012/ Matha Neil/ "Group of Federal Judges Plans to Seek Class Action Status in Suit Over Unpaid Cost-of-Living Raises"; also see, caselaw.1p.findlaw.com/ Williams, et al. v. United States, U.S. Ct. of Appeals for the Federal Circuit, Case No. 99-1572, 00-1254, 1255 (February 16, 2001); www.ky3.com/news/December 14, 2012/ Jesse J. Holland, Associated Press; www.washingtonpost.com/politics/courts & law/ 12-14-2012/ "Federal Judges Asking Colleagues To Help Make COngress Pay Promised Cost-of-Living Increases"]