A fat retirement plan for federal judges
September 15, 2016

Federal judges have no fear of an impoverished old age thanks to what is known as the Rule of Eighty.

The rule gives judges the option of the life of Riley if they are 65 or older, and their age, plus the years they have spent on the bench, add up to the magic number. The latest to take advantage in Louisiana's Eastern District is Ginger Berrigan.

Judges may, if they wish, continue to work fulltime until they drop. Judge Martin Feldman, for instance, was appointed by President Ronald Reagan and is still dishing out justice with undiminished vigor at the age of 82. He also darts off from time to time to Washington, D.C., where he sits on the Foreign Intelligence Surveillance Court.

Those who prefer a quieter life have two choices. They can either retire or take senior status.

If they simply quit working, they continue to receive the same income for life and will actually have more cash in their pockets, at least for some time, because it is deemed an annuity and not a salary. That means no FICA taxes.

Retired judges don't get any raises, including cost-of-living raises, that might go to their active brethren, but they would have to live as long as Noah to experience any want. District judges currently earn $199,100 a year.

Berrigan, however, chose not to take an annuity in that amount. Instead, she opted for senior status, whereby a judge can stay on the payroll with full salary, raises included, but with a significantly reduced workload. This is the option favored by most superannuated federal judges.

Berrigan becomes the fifth Eastern District judge on senior status, the others being Ivan Lemelle, Mary Ann Lemmon, Stanwood Duval and Peter Beer. The doyen of them all is Beer, 88, who was appointed by President Jimmy Carter and has been on senior status for 22 years.

Senior-status judges have more spending money than full-timers because they too are exempt from FICA taxes.

Much of the pressure is off, because a judge may retain senior status by handling no more than 25 percent of a full-timer's case load. Failing that, the productivity requirement may be met by "administrative duties directly related to the operation of the courts" or on behalf of any "federal state or federal government entity." Senior-status judges must obtain certification every year that they have done enough work. Failure to obtain certification means no more pay raises.

In order to preside over a case, a senior-status judge must be "designated and assigned" by the head of the court, and that is not going to happen with Berrigan any time soon. When she took senior status, Berrigan already had been on leave since January to handle personal misfortunes, which evidently persist. Even if she were available for work, it is by no means assured that Chief Judge Kurt Engelhardt would assign her any cases, because she has been on the outs with her colleagues for more than a year.

Berrigan, a Bill Clinton appointee, is widely regarded as the most liberal judge in the Eastern District but nevertheless enjoyed cordial relations with the conservatives, such as Feldman, until she was tapped to preside at a hearing to consider the fate of attorney Joseph Mole.

Mole was involved in the case that led to the impeachment and removal of federal Judge Tom Porteous. When the other side hired a couple of Porteous' friends and financial benefactors as attorneys, Mole decided he could use some improper influence too.

He hired another Porteous friend with the sole purpose of encouraging a recusal. Porteous remained on the case, however, and issued a ruling in favor of Mole's opponents that was so biased the appeals court overturned it as a violation of "several criminal statutes and ethical canons."

Berrigan conducted a hearing on whether Mole should be sanctioned and concluded that he had "diligently represented his client at all times in a manner that is a credit to the profession." That ruling left the district's other judges flabbergasted; they reversed Berrigan and suspended Mole for one year, with six months deferred.

This is a sad way for Berrigan to wind up her career, regardless of the considerable comforts afforded over-the-hill federal judges.

Copyright 2016, The Advocate/Capital City Press LLC

From: James Gill, "A fat retirement plan for federal judges," The Advocate, Baton Rouge, September 15, 2016.  James Gill can be reached at jgill@theadvocate.com.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.

  1. Federal judges who retire continue to collect their full salaries for the remainder of their lives.2  However, judges who resign or are forced to resign get nothing.  See: Stephen B. Burbank, et al., "Leaving the Bench, 1970-2009: The Choices Federal Judges Make ...", U. Penn. Law Rev., 161, 1 (2012).

  2. 28 U.S.C. § 371(a).

  3. See also: John Simerman, "'Senior status' for Judge Helen 'Ginger' Berrigan opens second seat on federal bench in New Orleans," TheAdvocate.Com, New Orleans, September 9, 2016.