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A group of federal judges challenging Congress’ denial of cost-of-living increases in judicial salaries in the mid-to-late 1990s will be back before the U.S. Court of Appeals for the Federal Circuit in December. Last June, the U.S. Supreme Court, without addressing the merits, returned the judges’ constitutional challenge to the Federal Circuit for review of a question raised by the Solicitor General: whether because of a prior Federal Circuit decision, principles of issue preclusion bar the judges from litigating their compensation clause challenge. “The Court considers it important that there be a decision on the question, rather than that an answer be deemed unnecessary in light of prior precedent on the merits,” wrote the Court in an unsigned order vacating and remanding Beer v. U.S. on June 28. A three-judge panel will hear arguments on the question on Dec. 16. The Beer case is a back-pay suit under the 1989 Ethics Reform Act. That act created a formula for making annual cost-of-living adjustments to the salaries of federal judges and high-level government officials. Increases would be made on Jan. 1 of any year in which the salaries of General Schedule employees were increased. In 1995, 1996, 1997 and 1999, GS employees received pay increases, but Congress, before Jan. 1 of each year, passed a law barring increases for judges and high-level officials. Congress’ actions were challenged first in Williams v. U.S., a class action brought on behalf of all Article III judges who charged that barring the cost-of-living adjustments violated the compensation clause. A divided panel of the Federal Circuit rejected the constitutional claim, holding that Congress always retains power to block judicial pay adjustments if it does so before a judge receives the adjusted amount in a paycheck. The Supreme Court declined to review that decision in 2002. In 2009, the Beer plaintiffs filed their lawsuit in the U.S. Court of Federal Claims. That court dismissed the suit after finding that Williams foreclosed relief. The Federal Circuit denied a motion for a hearing en banc and granted summary affirmance in 2010. Neither court addressed the government’s argument that the Beer lawsuit was barred because the plaintiffs were part of the original Williams class and were bound by the Williams analysis of the compensation clause claim. In preparation for the Dec. 16 arguments, the judges and the United States already have completed one round of briefing on the preclusion question, said Christopher Landau of Kirkland & Ellis, counsel to the Beer plaintiffs. In his brief, Landau argues, “If due process means anything, it means that these plaintiffs cannot be bound as a matter of law by what other plaintiffs did in litigation of which these plaintiffs were given neither notice nor an opportunity to opt out. Accordingly, this Court should hold that plaintiffs’ claims are not foreclosed by issue preclusion, so that either this Court en banc or the Supreme Court is free to address those claims on the merits.” The government counters that the legal issues in the Beer case were “fully and exhaustively” litigated to final judgment in Williams. “Even though the appellants believe the result in Williams to be wrong or inequitable, the `vital public interests’ served by the doctrine of res judicata compel this Court to reject appellants attempt to relitigate this matter,” wrote the government. The Beer plaintiffs are Judges Peter Beer, U.W. Clemon, Terry Hatter, Thomas Hogan, Richard Paez, Laurence Silberman, and A. Wallace Tashima. An amicus brief supporting the judges has been filed by the Federal Judges Association, whose counsel is Jeffrey Lamken of MoloLamken. In its June remand order, the Supreme Court said, “Further proceedings after decision of the preclusion question are for the Court of Appeals to determine in the first instance.” Contact Marcia Coyle at [email protected].

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