House Pay Bill Would Affect Judicial Staff Compensation

A bill to increase pay for executive and judicial branch staff has been introduced in the House by Representative Tom Davis (R-VA). H.R. 1824 would extend locality pay at the Washington, D.C., rate of 10.23 percent to the Vice President and to Executive Schedule officials. It also would raise the statutory limit on the basic pay of members of the Senior Executive Service, and increase the limits on the basic pay of administrative law judges and members of the Board of Contract Appeals.

The Judicial Conference urged Davis to include the Judiciary in the legislation, and several provisions directly address the pay of judicial branch staff. While provisions increasing the pay of members of Congress and Article III judges were not included, the bill raises, for the first time since the Ethics Reform Act of 1989, the issue of compensation for senior executive officers.

"Pay compression at the senior executive schedule level has had a negative impact on the salaries of Judiciary employees. In turn, this has affected our ability to attract and keep the best people. This bill would improve that situation," said Administrative Office Director Leonidas Ralph Mecham. Mecham also noted that, "Every effort was made to include judges in this bill, but key congressional leaders continue to favor linking judges' pay to members of Congress."

The American Bar Association and Federal Bar Association addressed compensation in their White Paper Report, A Need for Reform. According to the report, "it is undisputed that over the past decade the pay of most top-level federal officials has been insidiously eroded by inflation and that the government's executive pay system has not been adjusted to reflect the rapid escalation in salaries offered to comparably placed officials in the private sector. The failure of top-level federal salaries to keep pace with changing economic conditions has affected the government's ability to attract and retain qualified, experienced candidates in today's highly competitive job market."

H.R. 1824 would increase the salaries of members of the Senior Executive Service from Executive Schedule IV, currently $125,700, to Executive Schedule level III, currently $133,700. For the judicial branch, provisions of the Davis bill would increase the current limitations on the pay of circuit executives from Executive Schedule IV to Executive Schedule level III for basic pay, and the current limitations on the basic pay of court unit executives from Executive Schedule level V to Executive Schedule level IV. The pay limitations on base pay plus locality pay for these respective offices also would be increased to the next highest level. Base pay of administrative law judges and members of the Board of Contract Appeals would be increased to Executive Schedule IV, as adjusted by locality pay.

In other legislation addressing compensation for judges, the Federal Judicial Fairness Act of 2001 is pending before the House Judiciary Committee. Representative Judy Biggert (R-IL) introduced the bill in February. H.R. 570, based on the ABA/FBA report recommendations, would restore four COLAs lost by judges in the 1990s. It also would remove section 140 of P.L. 97-92, a provision that says Congress must take an affirmative action for judges to receive the annual COLA provided for by the Ethics Reform Act of 1989, as well as decouple judicial, congressional, and Executive Schedule pay. H.R. 570 currently has 22 co-sponsors in the House.

Pay Litigation Develops

In its recent decision in Hatter v. United States, the Supreme Court held that the imposition of Social Security taxes on Article III judges sitting on January 1, 1984, was unconstitutional because it effectively singled out federal judges for unfavorable treatment. The Administrative Office is exploring the impact this decision may have on non-plaintiff judges, how claims may be processed, and other related questions.

The case was brought in 1989 by 10 judges seeking recovery of Medicare and Social Security taxes imposed on Article III judges beginning in 1983 and 1984, respectively. In 1983, Congress permitted, but did not require, then-currently employed federal employees to participate in Social Security. Federal judges, however, with the President and other high-level government employees, were required to participate. A number of federal judges appointed before 1983 filed the suit, arguing that the 1983 law violated the constitutional guarantee that the salaries of Article III judges shall not be diminished during their continuance in office. The Supreme Court held that the compensation clause in the Constitution prevents the government from collecting Social Security taxes, but not Medicare taxes, from federal judges who held office before Congress extended those taxes to federal employees. The full text of the decision can be found on the Supreme Court's web site at www.supreme-courtus.gov/opinions/00slipopinion.html.

In the case of Spencer Williams v. United States, the Court of Appeals for the Federal Circuit has denied the plaintiff-judges' motion for leave to file a second petition for rehearing en banc. In early May, the Court of Appeals declined to rehear en banc the three-judge panel's decision in the case. The plaintiffs then had 90 days in which to petition the Supreme Court for certiorari. In February, the Court of Appeals reversed the decision of the U.S. District Court for the District of Columbia that the plaintiffs were entitled to back pay and future cost-of-living pay increases under the Ethics Reform Act of 1989.

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