DAVIS v. United States

In the United States Court of Federal Claims No. 24-364 (Filed: May 20, 2026) ************************* RODNEY L. DAVIS, et al., Plaintiffs, v. THE UNITED STATES, Defendant. ************************* Kenneth T. Cuccinelli, II, Spotsylvania, VA, for plaintiffs. Earl N. Mayfield, III, Fairfax, VA, of counsel. Galina I. Fomenkova, Senior Trial Attorney, United States Department of Justice, Commercial Litigation Branch, Civil Division, Washington, DC, with whom were Stanley E. Woodward Jr., Associate Attorney General, Brett A. Shumate, Assistant Attorney General, Patricia M. McCarthy, Director, and Albert S. Iarossi, Assistant Director, for defendant. OPINION BRUGGINK, Senior Judge. Pending are plaintiffs’ motion for partial summary judgment and the government’s cross-motion for summary judgment. The opposing motions raise many issues, most of which are of first impression. The crux of this dispute hinges on the interplay between the “Ascertainment Clause” found in Article I, Section 6, Clause 1 of the United States Constitution, the Twenty-Seventh Amendment to the United States Constitution, the automatic cost-of-living adjustment (“COLA”) provisions of the Ethics Reform Act of 1989 (“ERA”), and Congress’s repeated rejection of COLAs that otherwise would have automatically taken effect under the ERA. 1  Plaintiffs assert that each time Congress enacts legislation that blocks an otherwise automatic COLA under the ERA from taking effect (“COLA- blocking legislation” or “COLA-blocking law(s)”), it has passed a law varying congressional compensation that is subject to the requirements of the Twenty-Seventh Amendment. In plaintiffs’ view, Congress has enacted such COLA-blocking legislation in a manner inconsistent with the Twenty- Seventh Amendment twenty times since the Amendment was ratified in 1992, including every year since 2009. Thus, plaintiffs assert that they are entitled to backpay resulting from those missed COLAs starting March 7, 2018. 1 Among other things, the pending motions call on this court to address whether it is appropriate to allow these plaintiffs to recover their asserted damages and, if so, whether COLA-blocking legislation is subject to the requirements of the Twenty-Seventh Amendment. To that end, and recognizing that it would be unwise to address in one go the myriad of potential issues raised by the briefing, we directed the parties to focus oral argument on the following four “comprehensive defenses” the government raised in its briefing: (1) whether plaintiffs are estopped from recovering their asserted damages; (2) whether the Twenty-Seventh Amendment applies to laws decreasing Congressional compensation; (3) whether COLA-blocking legislation “varies” Congressional compensation; and (4) whether the Twenty-Seventh Amendment renders noncompliant legislation void ab initio or operates merely as a timing provision, in which case the question becomes whether and to what extent COLA-blocking legislation can be retroactively applied. Consistent with our approach to oral argument, we limit this opinion to those four issues. For the reasons set out below, we hold that (1) plaintiffs are not estopped from recovering their asserted damages, (2) that the Twenty- Seventh Amendment by its terms applies to laws decreasing Congressional 1 We previously rejected plaintiffs’ argument that the continuing claims doctrine applied to this case and held that “[a]ny claim originating prior to March 7, 2018[,] is barred and COLAs nullified more than six years earlier are not resurrected for the 2018–2024 period.” Davis v. United States, 174 Fed. Cl. 563, 579 (2024). Although we do not address that issue in this opinion, as we explained at oral argument and discuss further below, we treat the issue as unresolved. Therefore, that question is hereby reopened, and we expect it to be the subject of further briefing and oral argument. 2 compensation, (3) that COLA-blocking legislation “varies” Congressional compensation, and (4) that the Twenty-Seventh Amendment renders non- compliant legislation ineffective to the extent such laws seek to effectuate a change in congressional compensation before an election intervenes. We defer ruling on all other issues raised by the parties’ motions pending further briefing. BACKGOUND I. The Mechanics of Congressional Pay We begin with the salient constitutional and statutory provisions. We will then discuss the relevant (albeit scarce) case law. A. The Constitution The Constitution states that “[t]he Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.” U.S. Const. art. I, § 6, cl. 1. 2 Thus, consistent with Congress’s power of the purse, the responsibility of determining Congress’s pay is left in the hands of Congress. For most of our nation’s history, this “Ascertainment Clause” was the only constitutional provision that concerned congressional pay. That changed, however, on May 7, 1992, when “Michigan’s approval of the proposed Twenty-Seventh Amendment supplied the necessary 38th state to bring about ratification, officially enshrining James Madison’s compensation Amendment two hundred years after he had proposed it.” Davis v. United States, 174 Fed. Cl. 563, 567 (2024). The Twenty-Seventh Amendment states that “[n]o law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” U.S. Const. amend. XXVII. Therefore, while it is within Congress’s power to set its own compensation, it now must do so in a manner consistent with the Twenty-Seventh Amendment. 2 This provision is often referred to as the “Ascertainment Clause.” As will become relevant later, Article I, Section 6, Clause 1 of the Constitution also contains the “Speech or Debate Clause.” 3  B. The ERA The relevant statutory scheme for Congressional pay arises from the 1989 enactment of the ERA, which “overhauled compensation and ethics rules for all three branches of government.” Beer v. United States, 696 F.3d 1174, 1177 (Fed. Cir. 2012) (en banc). 3 In exchange for rather drastically limiting outside income, see ERA, Pub. L. No. 101-194, § 601, 103 Stat. 1716, 1760–61 (1989) (now codified at 5 U.S.C. § 13143), the ERA granted “an immediate one-time salary increase and in subsequent years an annual COLA.” Boehner v. Anderson, 30 F.3d 156, 158 (D.C. Cir. 1994) (citing ERA, Pub. L. No. 101-194, 103 Stat. 1716 (1989) (codified at 2 U.S.C. § 4501 and 5 U.S.C. § 5318 note)). 4 The COLA provisions of the ERA are codified at 2 U.S.C. § 4501, which states: The annual rate of pay for [members of Congress]– ... shall be the rate determined for such positions under chapter 11 of this title, as adjusted by paragraph (2) of this section. (2)(A) Subject to subparagraph (B), . . . each annual rate referred to in paragraph (1) shall be adjusted by an amount, rounded to the nearest multiple of $100 (or if midway between multiples of $100, to the next higher multiple of $100), equal to the percentage of such annual rate which corresponds to the most recent percentage change in the ECI (relative to the date described in the next sentence), as determined under section 704(a)(1) of the Ethics Reform Act of 1989. The appropriate date under this sentence is the first day of the fiscal year in which such adjustment in the rates of pay under the General 3 Although originally only applicable to Representatives, in 1991, Congress extended the ERA to include Senators. See Legislative Branch Appropriations Act, 1992, Pub. L. No. 102-90, § 6(a), 105 Stat. 447, 450 (1991) (codified at 5 U.S.C. § 5318 note). 4 2 U.S.C. § 4501 was previously codified at 2 U.S.C. § 31. For simplicity’s sake, we treat that section as though it was codified at 2 U.S.C. § 4501 at all relevant times. 4  Schedule takes effect. (B) In no event shall the percentage adjustment taking effect under subparagraph (A) in any calendar year (before rounding), in any rate of pay, exceed the percentage adjustment taking effect in such calendar year under [5 U.S.C. § 5303] in the rates of pay under the General Schedule. 2 U.S.C. § 4501(1)–(2). Thus, Congressional COLAs are determined by the formula found in Section 704(a)(1) of the ERA, “rounded to the nearest multiple of $100.” 2 U.S.C. § 4501(2)(A). That formula is tied to the Employment Cost Index (“ECI”) 5 subject to the limitation that no COLA can exceed five percent. See ERA, Pub. L. No. 101-194, § 704(a)(1), 103 Stat. 1716, 1769 (1989) (codified at 5 U.S.C. § 5318 note). That is not the only limitation, however, because Section 4501 also provides that no congressional COLA can exceed the adjustment in rates of pay under the General Schedule (“GS”), applicable to most federal civilian employees, which is determined by a similar ECI-based formula under 5 U.S.C. § 5303. 2 U.S.C § 4501(2)(B). In effect, Section 4501 dictates that members of Congress will receive an automatic COLA every year based on the lesser of the percentage increase set by the formula found in Section 704(a)(1) of the ERA (codified at 5 U.S.C. § 5318 note) and the percentage increase taking effect under 5 U.S.C. § 5303. 6 This is important because, in addition to its ECI-based formula, Section 5303 grants the President the authority to change the pay adjustment that would otherwise take effect under that section, even down to zero, if, in the exercise of his discretion, the President determines that such adjustment is inappropriate due to a “national emergency or serious economic conditions affecting the general welfare.” 5 U.S.C. § 5303(b). The minute differences between the formula dictated by 2 U.S.C. § 4501 and that found in 5 U.S.C. § 5303 are 5 The Employment Cost Index (“ECI”) is a measure of employee wages and benefits on a national scale and is reported quarterly by the Department of Labor. 6 Because Section 4501 calls for a COLA equal to the lesser of the percentage increase under Section 704(a)(1) of the ERA and the percentage increase taking effect under 5 U.S.C. § 5303, and because Section 704(a)(1) of the ERA caps any COLA at five percent, congressional COLAs under Section 4501 will never exceed five percent. 5 not particularly germane. What is relevant for our purposes, however, is that, assuming the ECI increases, and unless the President of the United States intervenes under 5 U.S.C. § 5303(b), a congressional COLA will take effect every year by operation of law pursuant to a definite formula. Concerning timing, Congressional COLAs take effect “at the beginning of the first applicable pay period commencing on or after the first day of the month in which an adjustment takes effect under [5 U.S.C. § 5303] in the rates of pay under the General Schedule.” 2 U.S.C § 4501(2)(A). “The official table of GS rates (reflecting the changes under § 5303) is announced in an executive order in the December preceding the January in which the new rates take effect.” Davis, 174 Fed. Cl. at 568. This increase takes effect on the “first day of the first applicable pay period beginning on or after January 1 of each calendar year.” 5 U.S.C. § 5303(a). Therefore, unless Congress changes the law, or the president intervenes to manually determine the GS rate increase, congressional COLAs will automatically take effect every year pursuant to the process explained above. C. COLA-Blocking Legislation The object of the ERA was, in large part, the laudable goal of taking politics “out of the messy process for determining pay for Congress, the Judiciary, and all civilian federal employees.” Davis, 174 Fed. Cl. at 568; see also Boehner v. Anderson, 809 F. Supp. 138, 141 (D.D.C. 1992) (explaining that implementing this “incredible piece of legislation . . . was truly a courageous act for the Congress and the President”). By exchanging the opportunity to earn most outside income with an immediate pay raise and the promise of future COLAs, the idea was to “remove[] the necessity of members casting public votes to set their own salary because the ERA would automatically adjust member pay each year according to its COLA formula.” Davis, 174 Fed. Cl. at 568; see also Boehner, 809 F. Supp. at 141 (describing the ERA as “a comprehensive package of ethics reform, which includes a series of measures which are interrelated, most notably the cost-of-living and the pay provisions on the one hand and the prohibition of honoraria on the other” (citation omitted)). Unfortunately, the goal was not achieved. In 1993, a mere two years after the ERA went into effect, Congress started what would become a habit of enacting COLA-blocking legislation, denying itself the 1994 COLA that would have otherwise gone into effect automatically. Emergency Unemployment Compensation Amendments of 1993, Pub. L. No. 103-6, § 7, 6 107 Stat. 33, 35 (1993). In the thirty-four calendar years since the Twenty- Seventh Amendment was ratified in 1992, Congress has denied itself COLAs in twenty-three of them. 7 Ida A. Brudnick, Cong. Rsch. Serv., RL 97-1011, Salaries of Members of Congress: Recent Actions and Historical Tables 2 (Updated Jan. 21, 2026), https://www.congress.gov/crs_external_products/RS/PDF/97-1011/97- 1011.100.pdf. Congress has denied every COLA since 2009, which has caused general congressional pay to remain stagnant at $174,000 per year since then. Id. at 1; see also Davis, 174 Fed. Cl. at 569. Over the years, Congress has used different language in its COLA- blocking legislation. For example, the legislation that prevented the 1995 COLA from taking effect directed the COLA under 2 U.S.C § 4501 to be calculated as if no adjustment to the GS pay rates had taken effect that year (even though the GS rates were, in fact, adjusted). Treasury, Postal Service and General Government Appropriations Act, 1995, Pub. L. No. 103-329, § 630(a)(2), 108 Stat. 2382, 2424 (1994); see also Davis, 174 Fed. Cl. at 569. Thus, because Section 4501 caps congressional COLAs at the amount of the GS pay rate increase, and because the COLA-blocking legislation required the Section 4501 COLA to be calculated as though no GS rate increase had occurred, Congress’s COLA was capped at zero. See Davis, 174 Fed. Cl. at 569. In later years, instead of artificially tinkering with a variable in Section 4501’s COLA formula, Congress has more directly denied COLAs. For example, the legislation that blocked the 2010 COLA stated that the COLA “scheduled to take effect under [2 U.S.C § 4501] in calendar year 2010 shall not take effect.” Omnibus Appropriations Act, 2009, Pub. L. No. 111-8, Div. 7 In the briefing, plaintiffs assert challenges to 20 of those COLA-blocking pieces of legislation, which blocked COLAs for the following years: 1995– 97, 1999, 2007, 2010, and 2012–25. Pls.’ Mem. Supp. Mot. Summ. J. 2–5, ECF No. 47-1. Plaintiffs’ motion for partial summary judgment was filed in September of 2025. On November 12, 2025, Congress enacted COLA- blocking legislation denying itself the 2026 COLA. Continuing Appropriations, Agriculture, Legislative Branch, Military Construction and Veterans Affairs, and Extensions Act, 2026, Pub. L. No. 119-37, Div. C, § 210, 139 Stat. 495, 584 (2025). Because no election could have intervened in an odd year, we also address in this opinion the 2025 COLA-blocking legislation that blocked the 2026 COLA from taking effect. 7 J, § 103, 123 Stat. 524, 988. And since 2013, COLA-blocking legislation has adopted the language that “no adjustment shall be made under [2 U.S.C § 4501] (relating to cost of living adjustments for Members of Congress) during [the specified] fiscal year.” E.g., Consolidated Appropriations Act, 2023, Pub. L. No. 117-328, § 6, 136 Stat. 4459, 4462 (2022). As we noted in our prior opinion, the typical COLA-blocking process can be seen with respect to 2024. Davis, 174 Fed. Cl. at 569. The president’s executive order under 5 U.S.C. § 5303 setting the GS rates for 2024 was issued on December 21, 2023. Id. (citing Exec. Order No. 14,113, 88 Fed. Reg. 89,259 (Dec. 21, 2023)). Accordingly, the new GS rates for 2024 took effect on the “first day of the first applicable pay period beginning on or after January 1 of each calendar year,” 5 U.S.C. § 5303(a), which was January 14, 2024, Kiran A. Ahuja, U.S. Off. of Pers. Mgmt., CPM 2023–20, Memorandum for Heads of Executive Departments and Agencies—January 2024 Pay Adjustments 1 (2023), https://chcoc.gov/sites/default/files/January- 2024-Pay-Adjustment-Memo-Attachments.pdf. To prevent the 2024 COLA from automatically taking effect, however, Congress enacted COLA- blocking legislation on March 23, 2024. Further Consolidated Appropriations Act, 2024, Pub. L. No. 118-47, § 7, 138 Stat. 460, 461. Since 2009, the timing of the executive orders setting the GS rates and the effective date of those rates has followed a consistent pattern. The president’s executive order is typically issued in December, and the new GS rates take effect the following January. The timing of COLA-blocking legislation, however, has varied widely—being enacted as early as March 2009 to prevent the January 2010 COLA, see Omnibus Appropriations Act, 2009, Pub. L. No. 111-8, 123 Stat. 524, or as late as March 2018 to block the January 2018 COLA, see Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, 132 Stat. 348. D. Relevant Cases Interpreting the Twenty-Seventh Amendment 1. Boehner In 1994, the D.C. Circuit in Boehner faced the question of whether the COLA provisions of the ERA violated the Twenty-Seventh Amendment. 30 F.3d at 158. In that case, former Speaker of the House John Boehner argued that each COLA under the ERA had to be considered a separate law that took effect the year it became payable, thus subjecting each individual COLA to the requirements of the Ascertainment Clause (thereby requiring bicameral 8 passage and presentment to the President) and the Twenty-Seventh Amendment. See id. at 161. The D.C Circuit rejected this argument and held that the ERA’s COLA provisions did not violate the Twenty-Seventh Amendment. Id. at 161–63. Focusing on the plain language of the Amendment, the court emphasized that the Amendment’s operation is simple: [I]t conditions the operation of a law varying congressional compensation upon an election of Representatives and the expiration of the Congress that voted for it. The law may be enacted at any time; when an election has been held the first condition is fulfilled; when the new Congress is seated the second condition is fulfilled. Id. at 162. Thus, the court stated that, under the Twenty-Seventh Amendment, a law varying compensation, “although duly enacted pursuant to Article I, does not ‘take effect’ at the earliest until the new Congress has been seated. . . . Accordingly, the present Congress could specify the salary of the next Congress or of any Congress after that.” Id. The court emphasized that the ERA’s COLA provisions would not cause a COLA to “be made until more than a year later, on January 1, 1991.” Id. Therefore, the court held that the COLA provisions of the ERA are constitutional because they became law in 1989 (before the 1990 election) but “did not cause any adjustment to congressional compensation until after the election of 1990 and the seating of the new Congress.” Id. Mr. Boehner also pressed a new, alternative argument that if the ERA’s COLA provisions are constitutional, then blocking a COLA from taking effect before the intervention of an election violates the Amendment. Id. Although it would have been of great aid to us now, the D.C. Circuit declined to address this argument for the first time on appeal. Id. at 162–63. 2. Beer In 2012, the Federal Circuit decided Beer. As the government points out, the Beer decision is not directly analogous to our case here because it dealt with the ERA’s COLA provisions as they applied to members of the federal judiciary with their unique protections under Article III’s “Compensation Clause.” 8 Nonetheless, as we explain later, we think the 8 The Compensation Clause provides that federal judges “shall, at stated 9 Beer decision is helpful in our resolution of the third issue in this opinion— whether COLA-blocking laws “vary” Congressional compensation. But to fully understand Beer, it is necessary to briefly explain the circumstances that led to the Beer decision, beginning with the United States Supreme Court’s decision in United States v. Will, 449 U.S. 200 (1980). In Will, although addressing a COLA framework within an entirely different statutory scheme (the Executive Salary Cost-of-Living Adjustment Act (“1975 Adjustment Act”)) than the ERA, the Supreme Court framed the issue presented to it in broad terms: [W]hen, if ever, does the Compensation Clause prohibit the Congress from repealing salary increases that otherwise take effect automatically pursuant to a formula previously enacted? We must decide when a salary increase authorized by Congress under such a formula “vests”—i.e., becomes irreversible under the Compensation Clause. Is the protection of the Clause first invoked when the formula is enacted or when increases take effect? Will, 449 U.S. at 221. In answering that question, the Court pronounced a seemingly equally broadly applicable rule: “[A] salary increase ‘vests’ for purposes of the Compensation Clause only when it takes effect as part of the compensation due and payable to Article III judges.” Id. at 229. In other words, the Court held that the Compensation Clause allowed Congress to block a judicial COLA at any point until “it first was scheduled to become part of judges’ compensation.” Id. Fast-forwarding to 2001, the Federal Circuit in Williams v. United States, 240 F.3d 1019 (Fed. Cir. 2001), overruled in part by Beer v. United States, 696 F.3d 1174 (Fed. Cir. 2012) (en banc), faced the same question that the Supreme Court did in Will but dealt with the COLA provisions of the ERA instead of the 1975 Adjustment Act. 240 F.3d at 1023, 1028 (“The question for us is no different than the question which the Supreme Court posed for itself to initiate the deliberative process in Will that led to the constitutional rule of vesting that the Court adopted.”). Williams dealt with a challenge by federal judges under the Compensation Clause to Congress’s Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” U.S. Const. art. III, § 1 (emphasis added). 10 decision to block the ERA’s scheduled COLAs for 1995, 1996, 1997, and 1999. Id. at 1024. The Federal Circuit understood Will’s “due and payable” holding as establishing “a rule that ‘vesting,’ for Article III compensation purposes, in effect requires the actual possession of the additional compensation.” Id. at 1032. In other words, “under the vesting rule in Will, pay increases for Article III judges are left constitutionally unprotected until the judges actually begin to accrue compensation under the increased rates.” Id. Importantly, each COLA-blocking law for the years at issue “became law before the January 1 effective date of the COLA pay increases.” Id. at 1024. Therefore, the court stated, “[u]nder Will, put simply, that is the end of our inquiry, and the Judges’ cause must fail.” Id. at 1031. Because it viewed Will as promulgating a broad, generally applicable constitutional rule, the Federal Circuit rejected the judges’ argument that the ERA’s COLA scheme was sufficiently distinguishable from the COLA scheme of the 1975 Adjustment Act so as to require a different result. See id. at 1037–40. Therefore, the court held that the COLA-blocking laws “were permissible . . . constitutional exercises of congressional power.” Id. at 1040. The Williams decision elicited multiple dissenting opinions throughout its litigation lifecycle. See, e.g., Williams, 240 F.3d at 1040–64 (Plager, J., dissenting); Williams v. United States, 264 F.3d 1089, 1090–93 (Fed. Cir. 2001) (Mayer, C.J., joined by Newman and Rader, JJ., dissenting from denial of reh’g en banc); Williams v. United States, 535 U.S. 911, 911– 22 (2002) (Breyer, J., joined by Scalia and Kennedy, JJ., dissenting from denial of certiorari). While we later cite the dissenting opinions written by Judge Plager and Chief Judge Mayer for collateral propositions related to the purpose of the ERA and its COLA provisions, Justice Breyer’s dissenting opinion is the most relevant to our discussion of Beer. In brief, Justice Breyer argued that the Supreme Court should have granted certiorari to address the question of whether the ERA was sufficiently distinguishable from the 1975 Adjustment Act such that the ERA triggers Article III judges’ expectation interests under the Compensation Clause. See Williams, 535 U.S. at 917–18 (Breyer, J., joined by Scalia and Kennedy, JJ., dissenting from denial of certiorari) (explaining that the 1975 Adjustment Act’s COLAs were “neither definite nor precise” and framing the relevant question as “whether the [ERA’s COLA provisions are] sufficiently precise and definite to have created an ‘expectation’ that the Compensation Clause protects” (citation omitted)). Turning to the Federal Circuit’s 2012 decision in Beer, the court, sitting en banc, overruled its prior Williams decision and held that the ERA 11 “triggered the Compensation Clause’s basic expectations and protections.” Beer, 696 F.3d at 1177. The court went to great lengths to explain the differences between the 1975 Adjustment Act and the ERA, noting that the 1975 Act’s COLA provisions were “imprecise as to amount and uncertain as to effect,” id. at 1181 (quoting Williams, 535 U.S. at 917 (Breyer, J., joined by Scalia and Kennedy, JJ., dissenting from denial of certiorari)), whereas the ERA calls for COLAs “according to a mechanical, automatic process that creates expectation and reliance when read in light of the Compensation Clause,” id. The court also emphasized that the “automaticity” of the ERA’s COLA scheme “takes on heightened significance” when considering the fact that the ERA “also banned judges from earning outside income and honoraria.” Id. at 1181–82 (citation omitted). Therefore, due to the differences between the 1975 Adjustment Act and the ERA, the court decided that the rule pronounced in Will did “not foreclose the relief that the judges” sought. Id. at 1183. From there, while emphasizing federal judges’ expectancy interests under Article III, the court held that that when Congress promised protection against diminishment in real pay in a definite manner and prohibited judges from earning outside income and honoraria to supplement their compensation, [the ERA] triggered the expectation-related protections of the Compensation Clause for all sitting judges. A later Congress could not renege on that commitment without diminishing judicial compensation. . . . Congress committed to providing sitting and prospective judges with annual COLAs in exchange for limiting their ability to seek outside income and to offset the effects of inflation. . . . Instead of fixing compensation relative to a commodity subject to inflationary pressure, Congress pegged the adjustment to a known measure of change to the economy as a whole, thus protecting the real salary of judges from both inflation and from fickle political will. By enacting blocking legislation in 1995, 1996, 1997, and 1999, Congress broke this commitment and effected a diminution in judicial compensation. Id. 1184–85. While the court’s holding ultimately turned on expectation- related interests specific to the context of Article III judges, critical for our purposes is the court’s explanation of the COLA provisions of the ERA: The ERA’s “COLA provisions were not an increase in judicial pay. . . . Rather, 12 the statute ensured that real judicial salary would not be reduced in the face of the elimination of outside income and the operation of inflation.” Id. at 1182–83 (emphasis added) (citing Williams, 535 U.S. at 916 (Breyer, J., joined by Scalia and Kennedy, JJ., dissenting from denial of certiorari)). II. Procedural History On March 7, 2024, four current and former members of Congress filed this suit 9 alleging that the timing of many COLA-blocking laws violated the Twenty-Seventh Amendment. Plaintiffs included three claims in their complaint. Count I asserted a right to “reimbursement for all unconstitutionally unpaid salary” during each respective plaintiff’s tenure in Congress. Second Am. Compl. ¶¶ 54–57. 10 Count II asserted a right to recovery based on a failure to pay the correct retirement benefits, and Count III asserted a failure to credit plaintiffs with the correct Thrift Savings Plan (“TSP”) contributions under the Federal Employees’ Retirement System (“FERS”). Id. at ¶¶ 58–63. On June 28, 2024, the government moved to dismiss the complaint under Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”). The government put forth three arguments in support of its motion. First, the government argued that this court lacked jurisdiction over plaintiffs’ unpaid salary claims under Count I because the Twenty-Seventh Amendment is not money-mandating as required by the Tucker Act. Second, the government argued that this court lacked jurisdiction over plaintiffs’ Count II and Count III claims (regarding retirement benefits and TSP employer matching) pursuant to 5 U.S.C. § 8461. Third, the government argued that this court’s six-year statute of limitations barred plaintiffs’ pay and retirement claims insofar as such claims accrued before March 7, 2018. On September 27, 2024, we issued an opinion denying the government’s motion to dismiss Count I, granting the motion to dismiss Counts II and III, 11 and granting the motion to dismiss all claims that were 9 On June 20, 2024, plaintiffs amended their complaint to add one more plaintiff but did not add any new substantive arguments. 10 For simplicity’s sake, and because none of the complaints varied in substance, we cite to plaintiffs’ second amended complaint, which is the most recent. 11 Counts II and III have been dismissed and are entirely irrelevant to the 13 stale pursuant to the statute of limitations. As to Count I, we rejected the government’s argument that we lacked jurisdiction on the basis that the Twenty-Seventh Amendment is not money-mandating as required by the Tucker Act. Davis, 174 Fed. Cl. at 573. In finding that we have jurisdiction, we did not need to “decide whether the Twenty-Seventh Amendment— standing alone—is money-mandating” because the relevant money- mandating statute under the Tucker Act is the ERA. Id. at 571. We rejected the government’s argument that any damage award under the ERA would be “predicated on first obtaining a declaratory judgment that the COLA- nullifying laws violate the Twenty-Seventh Amendment,” id., because “[b]ut for the allegedly unconstitutional effect of the nullifying legislation, the money-mandating source of jurisdiction remains the ERA. We may enforce the ERA COLAs, in other words, and award whatever payment they grant while ‘omitting’ any ‘constitutionally void’ provisions,” id. at 573 (quoting Gentry v. United States, 546 F.2d 343, 346 (Ct. Cl. 1976)). Thus, we noted that “if a plaintiff alleges that a money-mandating statute has been unconstitutionally thwarted, the claim is based on the statute, not the Constitution.” Id. (citing Matsuo v. United States 416 F. Supp. 2d 982, 991. (D. Ha. 2006)). We also addressed, in dicta, some arguments that are now properly before us on these cross-motions for summary judgment. For example, we opined, albeit indirectly, on the government’s current argument that the Twenty-Seventh Amendment is concerned only with pay increases and not decreases when we said that “[t]he Founders were deeply concerned about how congressional compensation would be fixed, both to prevent self- enrichment and also performative self-impoverishment.” Id. at 574 (emphasis added) (citation omitted). Furthermore, we dismissed the government’s current argument that COLA-blocking legislation does not “vary” congressional compensation when we stated, in passing, that “blocking legislation plainly consists of laws ‘varying the compensation for the services of the Senators and Representatives.’” Id. at 573 (quoting U.S. Const. amend. XXVII). Lastly, we expressed skepticism as to the government’s characterization of the Twenty-Seventh Amendment as merely a timing provision. Id. However, we did not decide (and indeed expressly declined to decide) exactly how the Twenty-Seventh Amendment operates, id. at 574, pending motions. Therefore, the reasons for granting the government’s motion to dismiss Counts II and III are not discussed herein. 14 574 n.5, a question which is now before us. Regarding the government’s third argument, we agreed that any claims that had accrued before March 7, 2018, were barred by the statute of limitations. Id. at 579. 12 More importantly, however, we also stated that the continuing claims doctrine did not apply to this case. Id. Thus, we held that “COLAs nullified more than six years earlier are not resurrected for the 2018–2024 period.” 13 Id. On January 17, 2025, plaintiffs amended their complaint for the second time, adding two new plaintiffs but leaving their substantive arguments unchanged. 14 On February 4, 2025, we granted plaintiffs’ motion to alter judgment and thus reissued our prior opinion with a finding that some of the issues decided therein warranted an immediate interlocutory appeal to the Federal Circuit pursuant to 28 U.S.C. § 1292(d)(2). Davis, 174 Fed. Cl. at 579. Relevant to the pending motions, we flagged two issues worthy of interlocutory appeal: (1) whether the Court of Federal Claims has jurisdiction over plaintiffs’ Count I salary claims, and (2) “[w]hether the ‘continuing claims doctrine’ permits plaintiffs’ claims for salary and backpay within the limitations period to be calculated according to implementation of [COLAs] mandated by the [ERA] from prior to the beginning of the six-year statute of limitations period for plaintiffs’ claims.” Id. The Federal Circuit declined to hear the appeal. Davis v. United States, No. 2025-119, 2025 U.S. App. LEXIS 12153, at *2 (Fed. Cir. May 20, 2025). Subsequently, on September 4, 2025, plaintiffs filed their pending motion for partial summary judgment. On October 31, 2025, the government 12 This decision, along with our dismissal of Counts II and III, required the dismissal of all of the claims of two of the five plaintiffs, bringing the then- total down to three. 13 In their pending motion for partial summary judgment, plaintiffs ask the court to revisit our prior decision on this point. Because this opinion is limited in scope, we do not address the applicability of the continuing claims doctrine herein. However, as we noted earlier, see supra n.1, we view this question as unresolved and expect to address it in the future pending further briefing. 14 This brought the total number of plaintiffs back up to its current number of five. 15 filed its cross-motion for summary judgment. Briefing wrapped up on February 6, 2026, and the court heard oral argument on February 20, 2026. We limited argument to the four issues previously stated. Thus, those four issues are ready for adjudication. STANDARD OF REVIEW Summary judgment is appropriate when the movant “shows that there is no genuine dispute” of “material fact” and that the “movant is entitled to judgment as a matter of law.” RCFC 56(a); Almanza v. United States, 127 Fed. Cl. 521, 525 (2016), aff’d, 935 F.3d 1332, 1336–37 (Fed. Cir. 2019). A fact is material if it might affect the outcome of the suit. Silver State Land, LLC v. United States, 155 Fed. Cl. 209, 212 (2021). A dispute of material fact is genuine when the fact finder may reasonably resolve it in favor of either party. Id. We read all factual inferences in favor of the nonmoving party. Id. DISCUSSION As we noted earlier, the pending motions raise a complicated web of issues, many of which are of first impression. Resolution of any one question could easily give rise to a number of downstream issues or just as easily render those downstream issues entirely irrelevant, depending on how we decide the initial question. Thus, we take it from the top. As we noted earlier, we limited oral argument (and thus now limit this opinion) to the following four issues: (1) whether plaintiffs are estopped from recovering their asserted damages; (2) whether the Twenty-Seventh Amendment applies to laws decreasing Congressional compensation; (3) whether COLA-blocking legislation “varies” Congressional compensation; and (4) whether the Twenty-Seventh Amendment renders noncompliant legislation void ab initio or operates merely as a timing provision, in which case the question becomes whether and to what extent COLA-blocking legislation can be retroactively applied. We address each in turn. I. Plaintiffs Are Not Estopped from Recovering Their Asserted Damages The government argues that “whatever harm plaintiffs may be said to have suffered, they themselves are the cause of that injury. And having caused their own injury, they cannot now recover for it.” Def.’s Resp. & Mot. Summ. J. 22, ECF No. 51. In making this claim, the government cites no 16 authority. On the contrary, the government appeals to general principles of law, including contributory negligence, failure to mitigate, and broader concepts of waiver and estoppel, to support its assertion that allowing plaintiffs’ recovery here would run contrary to “basic principles of fairness.” Id. at 23. Plaintiffs respond with a number of counterarguments as to why they are not estopped from and have not waived their right to recover their asserted damages, including: (1) that the Speech or Debate Clause bars “the evidentiary use of legislative votes (or other legislative acts) to a Member’s detriment;” (2) that applying principles of waiver and estoppel would perversely require members of Congress to always vote in their own self- interest; (3) that none of the COLA-blocking laws were stand-alone bills, and “[m]ultiple-subject bills force member