Judge Silberman, et al., Win Rehearing En Banc in Judicial Pay Case

Judge Silberman is one of the named plaintiffs in a judicial pay case that the Federal Circuit recently agreed to hear en banc.  The suit is a constitutional challenge to legislation barring cost-of-living adjustments to federal judicial salaries despite a 1989 statute providing that such adjustments should be made automatically whenever other civil servants receive them.  The plaintiffs say Congress’s refusal to give effect to the 1989 law violates the Compensation Clause, which provides that judges shall “receive for their services, a compensation, which shall not be diminished during their continuance in office.”

The plaintiffs, each of whom was on the bench when the 1989 law went into effect, seek to overturn directly adverse Federal Circuit precedent holding that “judicial pay increases which are enacted and effective, except in the sense that they are not yet ‘due and payable’ to judges, may be repealed” without violating the constitutional ban on salary diminution.

When Judge Silberman took senior status in 2000, he is reported to have said, “Since Congress won’t give us the pay raise it promised, I’d rather take my compensation in leisure time.”  He later noted that the average judicial nominee “faces an immediate decline in his or her real income” if confirmed to the federal bench.

Chief Justice Roberts has repeatedly asked Congress for judicial pay increases, and in 2008 he told Congress that the cost-of-living adjustments promised in 1989 had been “unfairly denied.”

The Federal Circuit’s decision to grant rehearing en banc comes two years after the same court denied the plaintiffs’ petition for initial hearing en banc, over the dissents of four members of the court.

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