If you spent Monday perusing the latest Supreme Court orders, then you may have noticed that the government is contesting Beer. (Ugh, Mondays.) For those of you following along with the federal judges’ cost-of-living adjustment (COLA) battle, U.S. v. Beer should ring a bell. That’s the case challenging a government decision to withhold COLAs guaranteed under the Ethics Reform Act of 1989.
The Act amended compensation and ethics rules for all three branches of the government. For judges, it limited the outside income they could earn and the honoraria they could accept, but provided for automatic COLAs — like other federal employees receive — to ensure that judges’ salaries would keep up with inflation.
The COLAs were only to be blocked if the president declared a national emergency or serious economic conditions, but Congress withheld the Judicial branch's COLAs in 1995-1997 and 1999, even though other federal employees received the adjustments. So the judges sued.
In 2010, the Federal Circuit made like Bloomberg with a Big Gulp and rejected the COLA claims, summarily affirming a Court of Federal Claims ruling based on Supreme Court precedent in U.S. v. Will and its own precedent in Williams v. U.S. (That reasoning essentially said that Congress giveth, and Congress taketh away under the Act.)
The Supreme Court, unsatisfied with the way the appellate court addressed the case, vacated and remanded the matter. That worked out well for the plaintiff-judges because the Federal Circuit, sitting en banc, overruled Williams last October and determined that the Act triggered the Compensation Clause's basic expectations and protections.
The majority wrote, "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."
Of course, the government petitioned the Supreme Court to reverse that ruling, bringing us back to Monday's orders when the Court denied certiorari.
As CBS-DC observes, the timing is inconvenient in light of the sequestration. While Blue Angels and air traffic controllers are being cut back, the government is suddenly on the line for a significant chunk of judicial change. And not just for the current litigants, but for all similarly-situated current and former judges.
As everyone else is forced to cut back, the long-suffering judges might be the only federal employees who can quench their financial thirst this year.