Federal Circuit hears judges’ pay case

A federal appellate court heard arguments Friday in a case that could ultimately decide if Congress has the authority to withhold judicial pay increases as it’s done in the past or whether cost-of-living adjustments are required.

The case of Peter H. Beer, et al. v. U.S., No. 09-1395, is before a Federal Circuit Court of Appeals panel, after the Supreme Court of the United States in June remanded the class-action lawsuit to decide a procedural question about preclusion and the notice requirements involved in class certification.

While the case is about judicial pay, those merits weren't considered Friday. Instead, the panel is currently weighing whether the case should be allowed to proceed.

Eight current and former federal judges from U.S. courts nationwide claimed that Congress in 1989 promised cost-of-living adjustments but failed to deliver them several times during the past two decades. They argue that failure equates to an unconstitutional diminishment of judicial pay. The American Bar Association urged the SCOTUS to take the case because it views the continued diminution of judicial salaries as a danger to the judiciary’s independence and quality of work.

In January 2010, the Federal Circuit affirmed a 2009 ruling by the U.S. Court of Federal Claims, which had dismissed the case after holding the judges’ lawsuit was controlled by a 2001 case that rejected the same argument. After the plaintiffs asked the SCOTUS to take the case, the government opposed the request and argued that the judges’ claims depend on an interpretation of the Constitution’s compensation clause that the Federal Circuit had rejected in the 2001 case.

The SCOTUS ordered the Federal Circuit reconsider that issue, and that was the focus of Friday’s arguments.

The judges focused on the actual notice requirements in the class certification rules and how caselaw, even the most recent SCOTUS decision in Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541 (2011), factored into this set of circumstances.

At its heart, the case is about whether money-focused requests for relief require specific notice to class members who weren’t a part of the 2001 case or whether they are precluded from filing a new suit even if they didn’t know about the 2001 ruling. Some of the questions focused on whether actual notice is required.

Attorney Chris Landau with Kirkland & Ellis in Washington, D.C., argued on behalf of the plaintiffs, saying that this case comes down to due process. He said the court has an obligation to look after those absent class members to make sure they have adequate notice of the class-action requirements.

“This is kind of due process 101,” he said. “You can’t tell people, ‘Guess what… you can’t bring a lawsuit about your pay'… it’s hard to imagine a more classic monetary judgment matter than your pay.”

But Assistant Attorney General Tony West argued that the lower court’s judgment should be upheld because the plaintiffs in this case were bound by the 2001 decision rejecting the argument they’re making now.

“This case presents a lot of open questions that can be litigated, at least at the Supreme Court level,” he said.

The Federal Judges Association is an amicus curiae party in the case, which has national implications for federal judges throughout the U.S.