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December 01, 2012

Federal judges file class action salary lawsuit

Seven federal judges filed a class action lawsuit Nov. 30 in the U.S. Court of Federal Claims seeking back pay that Article III judges who are serving or served any time from 2006 to the present are owed for cost-of-living adjustments (COLAs) they did not receive in six of the past 17 years.

The lawsuit, Sarah Evans Barker, et al. v. United States, follows the Oct. 5 decision by the en banc U.S. Court of Appeals for the Federal Circuit in Beer v. United States. Both cases arose out of the Ethics Reform Act of 1989, which established a procedure for automatic annual COLAs for judges and other senior government officials based on the employee cost index to take effect whenever a COLA was conferred on federal workers paid according to the General Schedule.

In 1995, 1996, 1997 and 1999, however, Congress passed blocking legislation that denied judges, members of Congress and certain executive branch officials their scheduled COLAs. In 2007 and 2010, COLAs were denied because Congress failed to enact authorizing legislation to allow federal judges to receive salary adjustments as it believed was required under Section 140 of P.L. 97-92. Section 140, originally enacted in 1981 as part of an appropriations bill and made permanent in 2001, bars funds each year from being expended to increase federal judicial salaries “except as may be specifically authorized by Act of Congress hereafter enacted.”

The Beer decision ruled that Congress violated the Constitution’s compensation clause when it blocked COLAs for federal judges in 1995, 1996, 1997 and 1999 and improperly withheld COLAs in 2007 and 2010 based on erroneous interpretation of Section 140. The Beer case was remanded to the U.S. Court of Federal Claims, which was directed to calculate monetary damages owed to the six appellants in that case as “the additional compensation to which appellants were entitled since Jan. 13, 2003 – the maximum period for which they can seek relief under the applicable statute of limitations.”

The federal government has until January to appeal the Beer decision to the Supreme Court.

The plaintiffs in the Barker case are asserting their claim for relief based on the same arguments that were successful in the Beer case but are asking for broader relief.

In addition to seeking immediate monetary relief, the plaintiffs are requesting declaratory relief, asking Congress to rule that: Congress may not in the future withhold the salary adjustments promised to plaintiffs and the class by the 1989 act; the current salaries of plaintiffs and the class must be set to the uniform salary to which the judges would have been entitled before salary adjustments were unlawfully withheld; and future salary adjustments promised to plaintiffs and the class by the 1989 act must be calculated according to that base uniform salary.

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