WASHINGTON — The Supreme Court won’t stop some federal judges from getting cost-of-living increases promised to them by Congress but never paid, a move that could end up increasing the salaries of all federal judges.
The high court on Monday refused to hear an appeal of a decision ordering the money to six federal judges. Congress in 1989 limited federal judges’ ability to earn money outside of their job, giving them instead automatic cost-of-living increases. But Congress withheld those cost-of-living increases in 1995, 1996, 1997, 1999, 2007 and 2010, while giving other federal employees their promised increases.
The U.S. Court of Appeals for the Federal Circuit in October ordered Congress to pay the six federal judges who sued for back pay, saying the Constitution ordered that compensation for federal judges “shall not be diminished during their continuance in office.”
“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.”
The justices, without comment, refused to reconsider that decision.
This decision comes in the middle of mandatory government budget reductions, known as sequestration, and while it only applies to a small number of judges now, could expand to the rest of the federal judiciary if a companion class action lawsuit moves forward.
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. Courts 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.
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 appeals court’s decision only applied to the six current and former federal judges who sued in the Beer v. United States case. Another group of judges is 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 at a cost of millions of dollars.
The Justice Department predicted that lawsuit in court papers. “The decision below provides a basis for every current or former federal judge (active or senior) to bring suit against the United States,” Solicitor General Donald B. Verrilli Jr. said.
The Justice Department also said the lower court decision would mean all current federal judges would be entitled to salary increases as long as they remain on the bench, but Congress wouldn’t have to give those increases to future judges, leading to paycheck inequities between judges doing the same jobs.
Chief Justice John Roberts and his predecessor, Chief Justice William H. Rehnquist, have advocated for higher judicial salaries for years, with the Administrative Office of the U.S. Courts saying that while inflation has increased by 36 percent since 1992, judicial pay has increased only 39 percent over the same time.
The case is United States v. Beer, 12-801.