United States Court of Appeals 

for the Federal Circuit 

__________________________ 

PETER H. BEER, TERRY J. HATTER, JR., 

RICHARD A. PAEZ, LAURENCE H. SILBERMAN, 

A. WALLACE TASHIMA AND U. W. CLEMON, 

Plaintiffs-Appellants, 

v. 

UNITED STATES, 

Defendant-Appellee. 

__________________________ 

2010-5012 

__________________________ 

Appeal from the United States Court of Federal 

Claims in No. 09-CV-037, Senior Judge Robert H. Hodges, 

Jr. 

_________________________ 

Decided: October 5, 2012 

_________________________ 

CHRISTOPHER LANDAU, Kirkland & Ellis, LLP, of 

Washington, DC, argued for plaintiffs-appellants. With 

him on the brief were JOHN C. O’QUINN and K. WINN 

ALLEN. 

BRIAN M. SIMKIN, Assistant Director, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendantappellee. With him on the brief were STUART F. DELERY, 
BEER v. US 2

Acting Assistant Attorney General, JEANNE E. DAVIDSON, 

Director, and MICHAEL S. MACKO, Trial Attorney. 

JEFFREY A. LAMKEN, MoloLamken LLP, of Washington, DC, for amicus curiae, The Federal Judges Association. With him on the brief were MARTIN V. TOTARO and 

LUCAS M. WALKER. 

AARON M. PANNER, Kellogg, Huber, Hansen, Todd, 

Evans & Figel, P.L.L.C., of Washington, DC, for amicus 

curiae, International Municipal Lawyers Association. 

WILLIAM P. ATKINS, Pillsbury Winthrop Shaw 

Pittman, LLP, of McLean, Virginia, for amicus curiae, Bar 

Association of the District of Columbia. Of counsel was 

ERIN M. DUNSTON, Buchanan Ingersoll & Rooney P.C., of 

Alexandria, Virginia. 

LAWRENCE D. ROSENBERG, Jones Day, of Washington, 

DC, for amicus curiae, American Bar Association. 

CARTER G. PHILLIPS, Sidley Austin, LLP, of Washington, DC, for amicus curiae, Federal Circuit Bar Association. With him on the brief was REBECCA K. WOOD. 

LAWRENCE M. FRIEDMAN, Barnes, Richardson & 

Colburn, Of Chicago, Illinois, for amicus curiae, Customs 

and International Trade Bar Association. 

__________________________ 

Before RADER, Chief Judge, NEWMAN, MAYER1, LOURIE, 

BRYSON, LINN, DYK, PROST, MOORE, O’MALLEY, REYNA, 

and WALLACH, Circuit Judges. 

 1 Judge Mayer participated in the decision on panel 

rehearing. 
3 BEER v. US

Opinion for the court filed by Chief Judge RADER, in 

which Circuit Judges NEWMAN, MAYER, LOURIE, LINN, 

PROST, MOORE, O’MALLEY, REYNA and WALLACH join. 

Dissenting opinion filed by Circuit Judge DYK, in which 

Circuit Judge BRYSON joins. 

Concurring opinion filed by Circuit Judge O’MALLEY, in 

which Circuit Judges MAYER and LINN join. 

Concurring opinion filed by Circuit Judge WALLACH. 

RADER, Chief Judge. 

The Constitution erects our government on three 

foundational corner stones – one of which is an independent judiciary. The foundation of that judicial independence is, in turn, a constitutional protection for judicial 

compensation. The framers of the Constitution protected 

judicial compensation from political processes because “a 

power over a man’s subsistence amounts to a power over 

his will.” The Federalist No. 79, p. 472 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Thus, the Constitution 

provides that “Compensation” for federal judges “shall not 

be diminished during their Continuance in Office.” U.S. 

Const. art. III, § 1 (“Compensation Clause”). 

This case presents this court with two issues involving judicial independence and constitutional compensation protections – one old and one new. First, the old 

question: does the Compensation Clause of Article III of 

the Constitution prohibit Congress from withholding the 

cost of living adjustments for Article III judges provided 

for in the Ethics Reform Act of 1989 (“1989 Act”)? To 

answer this question, this court revisits the Supreme 

Court’s decision in United States v. Will, 449 U.S. 200 

(1980). Over a decade ago in Williams v. United States, 

240 F.3d 1019 (Fed. Cir. 2001) (filed with dissenting 

opinion by Plager, J.), a divided panel of this court found 
BEER v. US 4

that Will applied to the 1989 Act and concluded that 

Congress could withdraw the promised 1989 cost of living 

adjustments. This court en banc now overrules Williams

and instead determines that the 1989 Act triggered the 

Compensation Clause’s basic expectations and protections. In the unique context of the 1989 Act, the Constitution prevents Congress from abrogating that statute’s 

precise and definite commitment to automatic yearly cost 

of living adjustments for sitting members of the judiciary. 

The new issue involves pure statutory interpretation, 

namely, whether the 2001 amendment to Section 140 of 

Pub. L. No. 97-92 overrides the provisions of the 1989 Act. 

This court concludes the 1989 Act was enacted after 

Section 140, and as such, the 1989 Act’s automatic cost of 

living adjustments control. 

I. 

The 1989 Act overhauled compensation and ethics 

rules for all three branches of government. With respect 

to the judiciary, it contained two reciprocal provisions. 

On the one hand, the 1989 Act limited a federal judge’s 

ability to earn outside income and restricted the receipt of 

honoraria. On the other hand, the 1989 Act provided for 

self-executing and non-discretionary cost of living adjustments (“COLA”) to protect and maintain a judge’s real 

salary. 

The 1989 Act provides that whenever a COLA for 

General Schedule federal employees takes effect under 5 

U.S.C. § 5303, the salary of judges “shall be adjusted” 

based on “the most recent percentage change in the 

[Employment Cost Index] . . . as determined under section 

704(a)(1) of the Ethics Reform Act of 1989.” Pub. L. No. 

101-194, § 704(a)(2)(A), 103 Stat. 1716, 1769 (Nov. 30, 

1989). The Employment Cost Index (“ECI”) is an index of 

wages and salaries for private industry workers published 
5 BEER v. US

quarterly by the Bureau of Labor Statistics. Section 

704(a)(1) of the 1989 Act calculates COLAs by first determining the percent change in the ECI over the previous year. Id. at § 704(a)(1)(B). Next, the statutory 

formula reduces the ECI percentage change by “one-half 

of 1 percent . . . rounded to the nearest one-tenth of 1 

percent.” Id. However, no percentage change determined 

under Section 704(a)(1) shall be “less than zero” or 

“greater than 5 percent.” Id.

While the 1989 Act states that judicial salary maintenance would only occur in concert with COLAs for General Schedule federal employees under 5 U.S.C. § 5303, 

these General Schedule COLAs are automatic, i.e., they 

do not require any further congressional action. See 5 

U.S.C. § 5303(a). The only limitation on General Schedule COLAs is a presidential declaration of a “national 

emergency or serious economic conditions affecting the 

general welfare” making pay adjustments “inappropriate.” 

5 U.S.C. § 5303(b). 

Notwithstanding the precise, automatic formula in 

the 1989 Act, the Legislative branch withheld from the 

Judicial branch those promised salary adjustments in 

fiscal years 1995, 1996, 1997, and 1999. During these 

years, General Schedule federal employees received the 

adjustments under Section 5303(a), but Congress blocked 

the adjustments for federal judges. See Pub. L. No. 103-

329, § 630(a)(2), 108 Stat. 2382, 2424 (Sept. 30, 1994) (FY 

1995); Pub. L. No. 104-52, § 633, 109 Stat. 468, 507 (Nov. 

19, 1995) (FY 1996); Pub. L. No. 104-208, § 637, 110 Stat. 

3009, 3009-364 (Sept. 30, 1996) (FY 1997); Pub. L. No. 

105-277, § 621, 112 Stat. 2681, 2681-518 (Oct. 21, 1998) 

(FY 1999). 

In response to these missed adjustments, several federal judges filed a class action alleging these acts dimin-
BEER v. US 6

ished their compensation in violation of Article III. After 

certifying a class of all federal judges serving at the time 

(including appellants) and without providing notice or 

opt-out rights, the district court held that Congress violated the Compensation Clause by blocking the salary 

adjustments. See Beer v. United States, 671 F.3d 1299, 

1308–09 (Fed. Cir. 2012); Williams v. United States, 48 F. 

Supp. 2d 52 (D.D.C. 1999). 

On appeal, this court reversed the district court’s 

judgment. See Williams, 240 F.3d at 1019. This court 

opined that the Supreme Court’s decision in Will foreclosed the judges’ claim as a matter of law. Id. at 1033, 

1035, 1040. According to this court, Will ruled that 

promised future salary adjustments do not qualify as 

“Compensation” protected under the Constitution until 

they are “due and payable.” Id. at 1032 (quoting Will, 440 

U.S. at 228). Thus, Congress enjoyed full discretion to 

revoke any future judicial COLAs previously established 

by law, no matter how precise or definite, as long as the 

adjustments had not yet taken effect. Id. at 1039. This 

court declined to hear the case en banc over the dissent of 

three judges. See 264 F.3d 1089, 1090–93 (Fed. Cir. 2001) 

(Mayer, C.J., joined by Newman and Rader, JJ.); id. at 

1093–94 (Newman, J., joined by Mayer, C.J. and Rader, 

J.). The Supreme Court denied certiorari over the dissent 

of three Justices. See 535 U.S. 911 (2002) (Breyer, J., 

joined by Scalia and Kennedy, JJ., dissenting from denial 

of certiorari). 

Following this court’s decision in Williams, Congress 

amended a 1981 appropriations rider commonly known as 

Section 140. Section 140 originally read: 

Notwithstanding any other provision of law or of 

this joint resolution, none of the funds appropriated by this joint resolution or by any other Act 
7 BEER v. US

shall be obligated or expended to increase, after 

the date of enactment of this joint resolution, any 

salary of any Federal judge or Justice of the Supreme Court, except as may be specifically authorized by Act of Congress hereafter enacted: 

Provided, That nothing in this limitation shall be 

construed to reduce any salary which may be in 

effect at the time of enactment of this joint resolution nor shall this limitation be construed in any 

manner to reduce the salary of any Federal judge 

or of any Justice of the Supreme Court. 

Pub. L. No. 97-92, § 140, 95 Stat. 1183, 1200 (1981) (codified at 28 U.S.C. § 461 note) (emphasis added). While 

Section 140 originally expired in 1982, see Williams, 240 

F.3d at 1026–27, it was revived by a 2001 amendment 

that added: “This section shall apply to fiscal year 1981 

and each fiscal year thereafter.” Pub. L. No. 107-77, § 

625, 115 Stat. 748, 803 (Nov. 28, 2001). 

Following the Section 140 amendment, Congress enacted legislation specifically allowing federal judges to 

receive the salary adjustments mandated by the 1989 Act 

in fiscal years 2002, 2003, 2004, 2005, 2006, 2008, and 

2009. See Barbara L. Schwemle, Congressional Research 

Service, Legislative, Executive, and Judicial Officials: 

Process for Adjusting Pay and Current Salaries 2-4 (Feb. 

9, 2011). For fiscal years 2007 and 2010, all General 

Schedule and Executive level federal employees received 

COLAs under 5 U.S.C. § 5303(a), but federal judges 

received no adjustments. Congress did not affirmatively 

authorize judicial COLAs in those years and took the 

position that, because of the requirements of Section 140, 

judicial COLAs could not be funded.” 

The current case results from the combination of the 

blocking legislation of the 1990s and the amendment to 
BEER v. US 8

Section 140. Appellants are six current and former Article III judges, all of whom entered into federal judicial 

service before 2001. In January 2009, they filed a complaint in the United States Court of Federal Claims 

claiming that Congress violated the Compensation Clause 

by withholding the salary adjustments established by the 

1989 Act. They claimed a deficit resulted not only from 

the withholding of COLAs in 2007 and 2010, but also the 

calculation of adjustments due in other years by reference 

to base compensation that did not include the amounts 

withheld in 1995, 1996, 1997, and 1999. For relief, they 

sought back pay for the additional amounts they allegedly 

should have received during the period covered by the 

applicable six-year statute of limitations. 

The Court of Federal Claims dismissed the complaint 

based on the Williams precedent. On appeal, this court 

summarily affirmed the judgment, stating that “Williams

controls the disposition of this matter.” Beer v. United 

States, 361 F. App’x. 150, 151–52 (Fed. Cir. 2010). 

The Supreme Court granted the subsequent petition 

for certiorari, vacated the judgment, remanded the case 

for “consideration of the question of preclusion,” and 

stated that “further proceedings . . . are for the Court of 

Appeals to determine.” Beer v. United States, 131 S. Ct. 

2865 (2011). Specifically, in opposing the petition for 

certiorari, the Government had argued that Appellants 

could not litigate anew the issue resolved in Williams

because they had been absent members of the class action 

in Williams. 

Upon remand, this court unanimously concluded that 

Appellants were not precluded from bringing their Compensation Clause claims in the present case. Beer v. 

United States, 671 F.3d 1299, 1309 (Fed. Cir. 2012). The 

district court in Williams had not provided Appellants 
9 BEER v. US

with notice of the class certification. Thus they were not 

bound by the result of that earlier litigation. See id. at 

1305–09. This court nonetheless continued to feel constrained by the ultimate conclusion in Williams and 

affirmed the Court of Federal Claims’ dismissal of the 

complaint. Id. at 1309. Subsequently, this court granted 

Appellants’ petition for rehearing en banc. 468 F. App’x 

995 (Fed. Cir. 2012). 

II. 

This court has jurisdiction over the Court of Federal 

Claims’ dismissal of the Appellants’ complaint under 28 

U.S.C. § 1295(a)(3). This court reviews the decision to 

dismiss the complaint without deference. Hearts Bluff 

Game Ranch, Inc. v. United States, 669 F.3d 1326, 1328 

(Fed. Cir. 2012); Frazer v. United States, 288 F.3d 1347, 

1351 (Fed. Cir. 2002). 

This court en banc now turns its attention to two preliminary issues before addressing the merits of the appeal. First, judicial review of laws affecting judicial 

compensation is not done lightly as these cases implicate 

a conflict of interest. Will, 449 U.S. at 211–17. After all, 

judges should disqualify themselves when their impartiality might reasonably be questioned or when they have a 

potential financial stake in the outcome of a decision. See

28 U.S.C. § 455(a). In Will, the Supreme Court applied 

the time-honored “Rule of Necessity” because if every 

potentially conflicted judge were disqualified, then plaintiffs would be left without a tribunal to address their 

claims. See Will, 449 U.S. at 213–17. The Rule of Necessity states that “although a judge had better not, if it can 

be avoided, take part in the decision of a case in which he 

has any personal interest, yet he not only may but must

do so if the case cannot be heard otherwise.” Id. at 213 

(quoting F. Pollack, A First Book of Jurisprudence 270 
BEER v. US 10

(6th ed. 1929)) (emphasis added). This court relies on the 

Supreme Court’s complete analysis of the Rule of Necessity and concludes that this en banc court may, indeed 

must, hear the case. See id. at 211–18. 

On the other preliminary procedural question, this 

court deliberately limits the questions under review. To 

be specific, this court en banc does not overrule the Williams panel’s analysis of Section 140. See 240 F.3d at 

1026–27. Furthermore, it does not overrule the Beer

panel’s analysis of preclusion. See 671 F.3d 1299. This 

court adopts the prior panel’s analysis of the preclusion 

issue in toto. Now the court en banc proceeds to the old 

and new questions previously set forth. 

III. 

At the outset, this court must honor and address the 

Supreme Court’s decision in Will. As the Williams panel 

correctly noted, if Will resolves the validity of Congress’ 

decision to block the COLAs promised in the 1989 Act, 

then any remedy for salary diminution in this case lies 

not in this court but in the Supreme Court. See Williams, 

240 F.3d at 1035. However, if Will is inapplicable to the 

statutory scheme at play in this case, then this court has 

an obligation to resolve the issue. 

United States v. Will, supra, tested the validity of 

congressional blocking acts preventing COLAs provided 

for under the 1975 Adjustment Act (“1975 Act”). The 

1975 Act purported to protect judicial salaries with adjustments calculated under an opaque and indefinite 

process. Section 5305, as in effect in 1975, directed the 

President to “carry out the policy stated in section 5301” 

when giving COLAs to General Schedule federal employees. 5 U.S.C. § 5305(a) (1976). Section 5301 in turn 

articulated a four-fold policy for setting federal pay: (1) 

equal pay for equal work; (2) pay distinction based on 
11 BEER v. US

work and performance distinctions; (3) comparable pay 

with private sector jobs for comparable work; and (4) 

interrelated statutory pay levels. 5 U.S.C. § 5301(a) 

(1976). 

In furtherance of this policy, the President appointed 

an agent to prepare an annual report on federal salaries. 

5 U.S.C. § 5305(a)(1) (1976). This annual report relied on 

statistics from the Bureau of Labor Statistics on private 

sector pay, views of the “Federal Employees Pay Council” 

about the comparability of private and public sector pay 

systems, and the views of employee organizations not 

represented in the Council. 5 U.S.C. § 5305(a)(1) (1976). 

This report did not and could not mandate the award of 

COLAs. 

The President also received a report from “The Advisory Committee on Federal Pay.” 5 U.S.C. § 5305(a)(2) 

(1976). This committee reviewed the report issued by the 

President’s agent under section 5305(a)(1) and considered 

further views and recommendations provided by “employee organizations, the President’s agent, other officials 

of the Government of the United States, and such experts 

as it may consult.” 5 U.S.C. § 5306(a)–(b) (1976). 

Based on these reports, the President could provide 

COLAs to General Schedule federal employees. 5 U.S.C. § 

5305(a)(2). If the President decided to recommend an 

adjustment, he would transmit to Congress the overall 

adjustment percentage. 5 U.S.C. § 5305(a)(3). Any judicial COLAs were pegged to the “overall percentage” in the 

President’s report to Congress under section 5305. 28 

U.S.C. § 461 (1976). 

Despite the 1975 Act, Congress allowed several 

COLAs for General Schedule federal employees but 

denied the increases to judges and other senior officials. 

The Supreme Court discussed the details of the legislation 
BEER v. US 12

that blocked these increases. See Will, 449 U.S. at 205–

09. In 1978, a group of federal judges filed suit alleging 

this blocking legislation was an unconstitutional diminution in salary contrary to Article III. Once the case made 

its way to the Supreme Court, the Court considered 

“when, if ever, . . . the Compensation Clause prohibit[s] 

the Congress from repealing salary increases that otherwise take effect automatically pursuant to a formula 

previously enacted.” Id. at 221. The Court concluded that 

Congress could block COLAs due to judges so long as the 

blocking legislation took effect in the fiscal year prior to 

the year in which the increase would have become payable. Id. at 228–29. According to the Court, “a salary 

increase ‘vests’ . . . only when it takes effect as part of the 

compensation due and payable to Article III judges.” Id.

at 229. 

The 1989 Act, informed by the failures of the 1975 

Act’s procedure, adopted a different purpose, used a 

different structure, and created different expectations 

than the 1975 Act. The 1975 Act “involved a set of interlocking statutes which, in respect to future cost-of-living 

adjustments, were neither definite nor precise.” Williams, 

535 U.S. at 917 (Breyer, J., joined by Scalia and Kennedy, 

JJ., dissenting from denial of certiorari). Instead of being 

tied to the percent change in a known, published metric of 

inflation such as the Employment Cost Index, the adjustments under the 1975 Act depended on the discretionary decisions of the President’s agent and the Advisory 

Committee on Federal Pay. Furthermore, the President 

was not obligated to award adjustments to General 

Schedule employees on a specific timeline or even pursuant to the suggestions from the agent and the committee. 

Rather, he only did so if it furthered the policies underpinning federal pay articulated in 5 U.S.C. § 5301. Thus, 

the method for calculating COLAs under the 1975 Act 
13 BEER v. US

was “imprecise as to amount and uncertain as to effect.” 

Id.

By contrast, the 1989 Act promised a mechanical implementation of COLAs for judges under the following 

equation: 

( )( 995.0100 ( () )

2

1 2 ××⎟

⎟

⎠

⎞

⎜

⎜

⎝

⎛ − =

−

− −

NYearECI

NYearECINYearECI Adjustment NYear )

 

See Pub. L. No. 101-194, § 704(a)(1)(B), 103 Stat. 1716, 

1769 (Nov. 30, 1989). The Act contained only two limits: a 

presidential prohibition (due to national emergency or 

extreme economic circumstances) and a ceiling (of no 

more than five percent). Id. 

In essence, the statutes reviewed in Will required judicial divination to predict a COLA and prevented the 

creation of firm expectations that judges would in fact 

receive any inflation-compensating adjustment. In that 

context, as the Supreme Court noted, no adjustment 

vested until formally enacted and received. However, the 

statutes reviewed in Williams and in this case provide 

COLAs according to a mechanical, automatic process that 

creates expectation and reliance when read in light of the 

Compensation Clause. Indeed a prospective judicial 

nominee in 1989 might well have decided to forego a 

lucrative legal career, based, in part, on the promise that 

the new adjustment scheme would preserve the real value 

of judicial compensation. 

Aside from their respective differences in methods for 

calculating COLAs, the 1989 Act’s overall scope and 

legislative history distinguishes it from the statutory 

scheme addressed in Will. In fact, the automaticity of the 

1989 Act’s COLAs takes on heightened significance in 

light of the broader statutory scheme because the 1989 
BEER v. US 14

Act also banned judges from earning outside income and 

honoraria. See Brown v. Gardner, 513 U.S. 115, 118 

(1994) (“The meaning of statutory language, plain or not, 

depends on its context.”). In sum, the salary protections 

in the 1989 Act are only part of a comprehensive codification of ethical rules, Pub. L. No. 101-194 §§ 301-03, financial reporting requirements, id. at § 202, work rules for 

senior judges, id. at § 705, and -- perhaps most important 

-- prohibitions on outside income and honoraria, id. at § 

601. 

Of the 935 active and senior judges in 1987, four hundred reported earning outside income from teaching law, 

speaking fees, and other sources. 135 Cong. Rec. S29,693 

(daily ed. Nov. 17, 1989). More than half reported extra 

earnings from $16,624 to $39,500. Id. The Report by The 

Bipartisan Task Force on Ethics, which became the basis 

for the Ethics Reform Act of 1989, noted that the repeated 

failure to provide recommended salary increases for 

judges and other executive employees meant increased 

reliance on “earning honoraria as a supplement to their 

official salaries.” 135 Cong. Rec. H30,744 (daily ed. Nov. 

21, 1989) (Task Force Report). During consideration of the 

1989 Act, Congress acknowledged that denying access to 

outside income would amount to a “pay cut.” 135 Cong. 

Rec. S29,662 (daily ed. Nov. 17, 1989) (statement of Sen. 

Dole that removing outside income is a “pay cut”); see also

135 Cong. Rec. H29,488 (daily ed. Nov. 16, 1989) (statement of Rep. Fazio), H29,492 (daily ed. Nov. 16, 1989) 

(statement of Rep. Ford). In that context, reliance on the 

1989 Act’s compensation maintenance formula took on 

added significance. See 135 Cong. Rec. H29,503 (daily ed. 

Nov. 16, 1989) (statement of Rep. Wolpe) (“[The] pay 

adjustment provision [is] tied directly to the elimination 

of all honoraria or speaking fees.”). Indeed, the Task 

Force Report emphasized that the restrictions and limita-
15 BEER v. US

tions on outside earned income, honoraria, and employment made by the Act are conditional on the enactment of 

the increased pay provisions. 135 Cong. Rec. H30,745 

(daily ed. Nov. 21, 1989) (Task Force Report). 

The dependable COLA system became “a final important part” of the package designed to remove salaries 

“from their current vulnerability for political demagoguery.” 135 Cong. Rec. H29,483 (Nov. 16, 1989) (statement 

of Rep. Fazio); H30,753 (Nov. 21, 1989) (Task Force 

Report). In sum, the 1989 Act reduced judges’ income by 

banning outside income but promised in exchange automatic maintenance of compensation – a classic legislative 

quid pro quo. 135 Cong. Rec. H29,484 (Nov. 16, 1989) 

(statement of Rep. Martin stating that the Ethics Reform 

Act of 1989 is a comprehensive and interrelated package); 

cf. 135 Cong. Rec. H29,499 (Nov. 16, 1989) (statement of 

Rep. Crane objecting to the interrelated nature of the 

package and advocating separate bills for ethics and pay). 

Thus, the 1989 statutory scheme was a precise legislative bargain which gave judges “an employment expectation” at a certain salary level. Cf. United States v. 

Hatter, 532 U.S. 557, 585 (2001) (Scalia, J., concurring in 

part and dissenting in part) (arguing that the repeal of 

judges’ exception from Medicare tax constituted a diminishment in compensation because judges had an expectation of an exemption from this tax). Moreover, the 1989 

Act COLA provisions were not an increase in judicial pay. 

If so, the connection with the vesting rule for pay increases articulated in Will might be a closer issue. 

Rather, 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. See Williams, 535 U.S. at 916 (Breyer, J., joined by Scalia and 

Kennedy, JJ., dissenting from denial of certiorari). 
BEER v. US 16

The vesting rules considered in Will are not expressly 

limited to the 1975 Act. However, the Supreme Court had 

no occasion to draw a distinction between a discretionary 

COLA scheme and a self-executing, non-discretionary 

adjustment for inflation coupled with a reduction in 

judicial compensation via elimination of outside income. 

For this reason, therefore, this court must examine further the actual differences in the two statutory schemes. 

The Supreme Court described the adjustments under 

the 1975 Act as “automatic.” See Will, 449 U.S. at 203, 

223–24. An examination of the 1975 Act, however, shows 

that the adjustments at issue in Will were automatically 

operative only “once the Executive had determined the 

amount.” Id. at 203 (emphasis added). The ways that the 

Executive determined the amounts under the 1975 Act 

and the 1989 Act are very different. The former was an 

uncertain, discretionary process. The latter is precise and 

definite. 

While the Supreme Court described the COLAs in 

Will as “automatic,” the only aspect that was truly automatic was the link between judicial and General Schedule 

employee salaries. Whether General Schedule employees 

(and judges) would receive COLAs in any given year or 

whether those COLAs would maintain earning levels was 

anything but certain under the 1975 Act. Consequently, 

the only line the Supreme Court could draw in Will was 

between before and after the COLAs at issue were funded. 

The 1989 Act’s scheme presents a much different landscape than the Court confronted in Will. For these reasons, Will does not foreclose the relief that the judges 

seek. 

Although this court determines that Williams incorrectly applied Will and other aspects of the law, this 

determination does not end the inquiry. The court must 
17 BEER v. US

now examine whether Congress’ decisions to deny the 

promised COLAs actually violated the Compensation 

Clause in Article III of the Constitution. 

The Compensation Clause has two basic purposes. 

First, it promotes judicial independence by protecting 

judges from diminishment in their salary by the other 

branches of Government. The founders of this nation 

understood the connections amongst protections for Life, 

Liberty, and the Pursuit of Happiness, protections for 

judicial independence, and protections for judicial compensation. Listed among the colonists’ grievances with 

the English Crown was that the King “ha[d] made Judges 

dependent on his Will alone for the Tenure of their Offices, and the amount and payment of their salaries.” 

Decl. of Independence para. 11 (U.S. 1776). As explained 

in The Federalist Papers, “[n]ext to permanency in office, 

nothing can contribute more to the independence of the 

judges than a fixed provision for their support.” The 

Federalist No. 79, p. 472 (Alexander Hamilton) (Clinton 

Rossiter ed., 1961). 

During the Constitutional Convention in 1787, the inspired draftsmen set out to protect against abuses such as 

those enumerated in the Declaration of Independence. 

James Madison of Virginia proposed prohibiting both 

enhancement and reduction of salary lest judges defer 

unduly to Congress when that body considered pay increases. Will, 449 U.S. at 219–20. Madison urged that 

variations in the value of money could be “guarded agst. 

by taking for a standard wheat or some other thing of 

permanent value.” Id. at 220 (quoting 2 M. Farrand, The 

Records of the Federal Convention of 1787, p. 45 (1911)). 

The Convention rejected Madison’s proposal because any 

commodity chosen as a standard for judicial compensation 

could also lose value due to inflationary forces, i.e., the 

value of wheat could also fluctuate. Id. Thus, the Com-
BEER v. US 18

pensation Clause did not tie judicial salaries to any commodity. The framers instead acknowledged that “fluctuations in the value of money, and in the state of society, 

rendered a fixed rate of compensation [for judges] in the 

Constitution inadmissible.” The Federalist No. 79, supra. 

The Convention adopted the clause in its current form 

while voicing, at length, concerns to protect judicial 

compensation against economic fluctuation and reprisal. 

The Compensation Clause, as well as promoting judicial independence, “ensures a prospective judge that, in 

abandoning private practice -- more often than not more 

lucrative than the bench -- the compensation of the new 

post will not diminish.” Will, 449 U.S. at 221. This 

expectancy interest attracts able lawyers to the bench and 

enhances the quality of justice. Id. This expectancy 

interest does not encompass increases in future salary but 

contemplates maintenance of that real salary level. 

Williams, 535 U.S. at 916 (Breyer, J. joined by Scalia and 

Kennedy, JJ., dissenting from denial of certiorari); The 

Federalist No. 79, supra, (noting that an Article III judge 

is assured “of the ground upon which he stands” and that 

he should “never be deterred from his duty by the apprehension of being placed in a less eligible situation”). 

The dual purpose of the Compensation Clause protects not only judicial compensation that has already 

taken effect but also reasonable expectations of maintenance of that compensation level. See Williams, 535 U.S. 

at 916 (Breyer, J. joined by Scalia and Kennedy, JJ., 

dissenting from denial of certiorari). The 1989 Act promised, in precise and definite terms, salary maintenance in 

exchange for prohibitions on a judge’s ability to earn 

outside income. The 1989 Act set a clear formula for 

calculation and implementation of those maintaining 

adjustments. Thus, all sitting federal judges are entitled 

to expect that their real salary will not diminish due to 
19 BEER v. US

inflation or the action or inaction of the other branches of 

Government. The judicial officer should enjoy the freedom to render decisions -- sometimes unpopular decisions 

-- without fear that his or her livelihood will be subject to 

political forces or reprisal from other branches of government. 

Prospective judges should likewise enjoy the same expectation of independence and protection. A lawyer 

making a decision to leave private practice to accept a 

nomination to the federal bench should be entitled to rely 

on the promise in the Constitution and the 1989 Act that 

the real value of judicial pay will not be diminished. Will, 

449 U.S. at 220–21; cf. United States v. Winstar Corp., 

518 U.S. 839, 872 (1996) (recognizing that government 

promises may give rise to reasonable expectations). 

To be sure, the Compensation Clause does not require 

periodic increases in judicial salaries to offset inflation or 

any other economic forces. As noted before, the Constitutional Convention did not tie judicial salaries to a commodity or other standard of measurement. Will, 449 U.S. 

at 220. However, 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, that Act 

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. That those compensation 

adjustments would happen in the future does not eliminate the reasonableness of the expectations created by the 

protections in the 1989 Act. Expectancy is, by its very 

nature, concerned with future events. 

Congress committed to providing sitting and prospective judges with annual COLAs in exchange for limiting 
BEER v. US 20

their ability to seek outside income and to offset the 

effects of inflation. This decision furthered the Founders’ 

intention of protecting judges against future changes in 

the economy. 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. 

Congress is not precluded from amending the 1989 

Act. Congress may set up a scheme promising judges a 

certain pay scale or yearly cost of living increases. However, the Constitution limits those changes. If a future 

Congress wishes to undo those promises, it may, but only 

prospectively. Any restructuring of compensation maintenance promises cannot affect currently-sitting Article 

III judges. 

IV. 

Turning now to the second question, this court determines that the 2001 amendment to Section 140 of Pub. L. 

97-92 has no effect on the compensation due to judges. 

Unlike the preceding discussion of the Compensation 

Clause, this is a question of statutory interpretation. 

Without a statutory basis for withholding the COLAs, 

federal judges should have received the adjustments in 

2007 and 2010. These adjustments are payable to the 

judges regardless of constitutional protections. Congress 

simply had no statutory authority to deny them. 

As noted above, Section 140 was part of an appropriations bill passed in 1981. It barred judges from receiving 

additional compensation except as Congress specifically 

authorized in legislation postdating Section 140. See Pub. 
21 BEER v. US

L. No. 97-92, § 140, 95 Stat. 1183, 1200 (Dec. 15, 1981). 

The appropriations act containing Section 140 expired by 

its terms on September 30, 1982. See Williams, 240 F.3d 

at 1026. Thus, the rule that judicial pay adjustments had 

to be “specifically authorized by Act of Congress hereafter 

enacted” expired in 1982. 

Of course, in 2001, Congress amended Section 140, 

purporting to apply it “to fiscal year 1981 and each fiscal 

year thereafter.” Pub. L. No. 107-77, Title VI, § 625, 115 

Stat. 748, 803 (2001). Notably, Congress chose 1981 as 

the effective date for this extension of Section 140. As 

shown above, Congress did not explicitly authorize judicial compensation adjustments in 2007 and 2010. If 

Section 140 applied to bar those 2007 and 2010 adjustments, the absence of that additional Act of Congress 

would block -- solely on the basis of this statute -- any 

adjustments in those years. 

Section 140, however, by its own terms, did not block 

the 2007 and 2010 adjustments. Section 140 is straightforward: it bars judicial salary increases unless (1) “specifically authorized by Act of Congress” and (2) “hereafter 

enacted.” Pub. L. No. 97-92, § 140. The 1989 Act’s precise 

and definite promise of COLAs clearly satisfies the first 

requirement to avoid a Section 140 bar. Williams, 240 

F.3d at 1027. The 1989 Act “specifically authorized” the 

2007 and 2010 adjustments which occurred under its 

precise terms. 

Section 140 was enacted in 1981 and the 1989 Act occurred eight years later. Thus, the 1989 Act was “hereafter enacted” within Section 140’s meaning. When 

Congress amended Section 140 in 2001, it did not wipe 

the slate clean and set a new benchmark for the “hereafter enacted” requirement. The 2001 amendment makes 

no reference to its own November 28, 2001, enactment 
BEER v. US 22

date. Instead, the amendment reiterates the 1981 baseline found elsewhere in the original Section 140, making 

the provision applicable to “‘fiscal year 1981 and each 

fiscal year thereafter.’” Pub. L. No. 107-77. An amendment referring only to fiscal year 1981 cannot redefine 

“hereafter” to refer to an entirely different date two 

decades later. Thus, the “hereafter enacted” requirement 

remained unchanged setting the “hereafter enacted” 

trigger date as 1981. In other words, Congress amended 

the existing Section 140 in 2001, but Section 140 remained a part of the Public Law 97-92 enacted in 1981. 

Furthermore, the amendment did not change Section 

140’s enactment date. Indeed the Government agreed at 

oral argument before this court en banc that the 2001 

amendment did not change the “hereafter enacted” clause 

of Section 140. The 2001 amendment merely erased 

Section 140’s expiration date, making permanent whatever effect the provision had when originally enacted. 

Congress thus expunged this court’s holding in Williams

that Section 140 expired in 1982. The 2001 amendment, 

however, did not change Section 140’s substantive scope. 

The 1989 Act’s precise, automatic COLAs satisfy the 

requirements of Section 140 because it was enacted after 

Section 140. The Government withheld COLAs from 

judges in 2007 and 2010 solely because the government 

misinterpreted Section 140 as requiring a separate and 

additional authorizing enactment to put those adjustments into effect. By its own terms, Section 140 did not 

require that further authorizing legislation because it 

permitted COLAs under the “hereafter enacted” 1989 Act. 

V. 

In this case, Congress’ acts in 1995, 1996, 1997, and 

1999 constitute unconstitutional diminishments of judicial compensation. Additionally, statutorily promised cost 
23 BEER v. US

of living adjustments were withheld in 2007 and 2010 

based on an erroneous statutory interpretation. Appellants’ motion to amend their complaint to include a challenge to the 2010 withholdings is granted. See Mills v. 

Maine, 118 F.3d 37, 53 (1st Cir. 1997) (“[A]ppellate courts 

have authority to allow amendments to complaints because ‘[t]here is in the nature of appellate jurisdiction, 

nothing which forbids the granting of amendments.’”) 

(quoting Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 

826, 834 (1989) (alterations omitted)). 

The statute of limitations does not bar these claims 

because, as established in Friedman v. United States, 159 

Ct. Cl. 1, 7 (1962) and Hatter v. United States, 203 F.3d 

795, 799–800 (Fed. Cir. 2000), aff’d in part, rev’d in part 

on other grounds, 532 U.S. 557 (2001), the claims are 

“continuing claims.” As relief, appellants are entitled to 

monetary damages for the diminished amounts they 

would have been paid if Congress had not withheld the 

salary adjustments mandated by the Act. On remand, the 

Court of Federal Claims shall calculate these damages as 

the additional compensation to which appellants were 

entitled since January 13, 2003 – the maximum period for 

which they can seek relief under the applicable statute of 

limitations. In making this calculation, the Court of 

Federal Claims shall incorporate the base salary increases which should have occurred in prior years had all 

the adjustments mandated by the 1989 Act had actually 

been made. See Hatter, 203 F.3d 795 (applying the “continuing claim” doctrine to calculating wrongful withholding of judicial pay). 

VI. 

This court has an “obligation of zealous preservation 

of the fundamentals of the nation. The question is not 

how much strain the system can tolerate; our obligation is 
BEER v. US 24

to deter potential inroads at their inception, for history 

shows the vulnerability of democratic institutions.” Beer 

v. United States, 592 F.3d 1326, 1329 (Fed. Cir. 2010) 

(Newman, J., dissenting from the denial of petition for 

hearing en banc). The judiciary, weakest of the three 

branches of government, must protect its independence 

and not place its will within the reach of political whim. 

The precise and definite promise of COLAs in the 1989 

Act triggered the expectation-related protections of the 

Compensation Clause. As such, Congress could not block 

these adjustments once promised. The Court of Federal 

Claims’ dismissal of Appellants’ complaint is hereby 

reversed, and the case is remanded for further consideration in accordance with this opinion. 

OVERRULED-IN-PART, VACATED-IN-PART, AND 

REMANDED 
United States Court of Appeals 

for the Federal Circuit 

__________________________ 

PETER H. BEER, TERRY J. HATTER, JR., 

RICHARD A. PAEZ, LAURENCE H. SILBERMAN, 

A. WALLACE TASHIMA AND U. W. CLEMON, 

Plaintiffs-Appellants, 

v. 

UNITED STATES, 

Defendant-Appellee. 

__________________________ 

2010-5012 

__________________________ 

Appeal from the United States Court of Federal 

Claims in No. 09-CV-037, Senior Judge Robert H. Hodges, 

Jr. 

__________________________ 

DYK, Circuit Judge, with whom BRYSON, Circuit Judge, 

joins, dissenting. 

The majority opinion brings to mind an exchange between Learned Hand and Justice Holmes. Judge Hand 

enjoined Justice Holmes to “[d]o justice” on the bench, but 

the Justice demurred: “That is not my job. My job is to 

play the game according to the rules.” Learned Hand, A 

Personal Confession, in The Spirit of Liberty 302, 306-07 

(Irving Dilliard ed., 3d ed. 1960). If the Supreme Court 

must play by the rules, that duty must be doubly binding 

on subordinate federal courts. Fidelity to this principle 
BEER v. US 2

mandates adherence to the Supreme Court’s opinion in 

United States v. Will, 449 U.S. 200 (1980). 

I 

While the majority’s approach has much to recommend it as a matter of justice to the nation’s underpaid 

Article III judges, it has nothing to recommend it in terms 

of the rules governing adjudication. “The criterion of 

constitutionality is not whether we believe the law to be 

for the public good,” Adkins v. Children’s Hosp., 261 U.S. 

525, 570 (1923) (Holmes, J., dissenting), but whether the 

law comports with the Supreme Court’s authoritative 

construction of the Constitution. Here, the issue is the 

scope of the Supreme Court’s 1980 decision in Will. Will’s 

holding is squarely on point. The Supreme Court’s framing of the issue was unmistakably clear: “when, if ever, 

does the Compensation Clause prohibit the Congress from 

repealing salary increases that otherwise take effect 

automatically pursuant to a formula previously enacted?” 

449 U.S. at 221. The answer was that a future salary 

increase “becomes irreversible under the Compensation 

Clause” when it “vests,” id., and that it “‘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 228-29. The Court’s opinion in 

Will is unambiguous that the Court adopted what it has 

characterized as a “categorical” rule. See, e.g., Plaut v. 

Spendthrift Farm, Inc., 514 U.S. 211, 239-40 (1995). 

The Court in Will explained that for two of the years, 

the statute was passed before the Adjustment Act increases had taken effect—

before they had become a part of the compensation due Article III judges. Thus, 

the departure from the Adjustment Act 

policy in no sense diminished the compen-
3 BEER v. US

sation Article III judges were receiving; it 

refused only to apply a previously enacted 

formula. 

 A paramount—indeed, an indispensable—ingredient of the concept of powers 

delegated to coequal branches is that each 

branch must recognize and respect the 

limits on its own authority and the 

boundaries of the authority delegated to 

the other branches. To say that the Congress could not alter a method of calculating salaries before it was executed would 

mean the Judicial Branch could command 

Congress to carry out an announced future 

intent as to a decision the Constitution 

vests exclusively in the Congress. We 

therefore conclude that 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. 

449 U.S. at 228-29 (footnotes omitted). 

Under Will’s bright-line vesting rule, Congress was 

free to “abandon” a statutory formula and revoke a 

planned cost-of-living adjustment (“COLA”), as long as 

the revoking legislation was enacted into law before the 

COLA “took effect,” that is, became “due and payable” 

(i.e., before October 1, the first day of the next fiscal year). 

Id. at 227-29. In Will Years 1 and 4, Congress missed 

that deadline, and the Court held that the belated withdrawal of judges’ COLAs violated the Compensation 

Clause. Id. at 226, 230. But in Will Years 2 and 3, 

COLA-blocking statutes signed before October 1 were 

upheld, even though one of those statutes eliminated the 
BEER v. US 4

promised COLA just a day before it would have taken 

effect. Id. at 229. 

Will thus made clear that a future salary increase 

only becomes protected by the Compensation Clause when 

it becomes “due and payable”; an increase which is merely 

anticipated or expected has not vested, and is not protected. By declining to follow Will’s clear vesting rule 

here, the majority also rejects the carefully crafted panel 

opinion in Williams v. United States, 240 F.3d 1019, 1039 

(Fed. Cir. 2001), reh’g denied, 240 F.3d 1366 (Fed. Cir. 

2001) (en banc), whose view of Will was supported at the 

time by a clear majority of the en banc court. See Williams, 240 F.3d at 1366 (eight judges concurring in the 

denial of rehearing en banc because “we are duty-bound to 

enforce [Will’s] rule. If we have incorrectly read the Will

opinion, the Supreme Court will have the opportunity to 

correct the error.”). 

II 

The majority attempts to redefine the constitutional 

test as turning not on “vesting,” but on “reasonable expectations,” a concept that appears nowhere in the Will

opinion. To justify this shift, the majority seeks to distinguish Will on its facts, namely on the dubious ground that 

the “automatic” salary adjustment scheme in Will was 

different from the “automatic” salary adjustment scheme 

in place in Williams and here. But even if factual differences were pertinent (which, as we discuss below, could 

not support a departure from Will’s holding), there is no 

material difference between the statutes in Will and those 

in the Williams years (1995, 1996, 1997, and 1999). The 

Will statutes and the Williams statutes were not different 

insofar as they tied judicial compensation to General 

Schedule (“GS”) compensation, nor were they materially 

different as far as the definiteness of the GS COLA was 
5 BEER v. US

concerned. Contrary to the majority’s suggestion, under 

both schemes, the COLA was “required” unless the President altered the COLA in response to “national emergency” or “economic conditions.” Compare 5 U.S.C. § 

5305(c)(1) (1976) with 5 U.S.C. at § 5303(b)(1) (2006). As 

the House Report to the 1990 Act stated, “[t]he President 

would have discretion [under the 1990 Comparability Act] 

to alter this adjustment . . . . This discretion is substantially similar to current law,” i.e., the 1975 Act. H.R. Rep. 

No. 101-906, at 88 (1990).1 And under both statutory 

schemes, the GS COLA, once established, would “take 

effect automatically.” Will, 449 U.S. at 221.2 Thus, the 

statutory schemes appear “strikingly similar” for all 

practical purposes. Williams, 240 F.3d at 1027. 

Nevertheless, the majority asserts that the expectation of a COLA created by the Williams statutes was 

significantly more “precise and definite,” Majority Op. 16, 

because under Will’s more complex scheme, there was 

greater discretion over the COLA—an assertion which is 

accurate only insofar as the President’s agent and Advisory Committee had greater discretion in setting the 

initial amount of the GS COLA. Under each statutory 

scheme, the President’s discretion was the same.3 

 1 Plainly Congress saw the references in the 1975 

Act to “economic conditions” and in the 1990 Act to “serious economic conditions” as functionally the same, since 

the President’s discretion was to remain “substantially 

similar” under the 1990 Act as before. 

2 Judge O’Malley’s concurrence misreads the dissent in suggesting that we view the COLAs in Will as 

“automatic” only because “the statutory scheme had run 

its course” in the disputed years. Concur. Op. 4. 

3 Will’s statutory scheme 

required the President to appoint an adjustment agent [who] was to compare 
BEER v. US 6

But whatever the discretion, if the test were “reasonable expectations,” then the key question would not be 

how the statutory scheme initially determined a COLA, 

but whether the amount of the COLA had become “precise 

and definite” at the time the blocking statute thwarted 

the judges’ expectations. In this respect, Will cannot be 

distinguished from Williams. For Will Year 3, no “judicial 

divination,” Majority Op. 13, would have been required: a 

GS COLA of 5.5% had already been specified in the President’s Alternative Plan, 14 Weekly Comp. Pres. Docs. 

1480 (Aug. 31, 1978), which was adopted and transmitted 

to Congress by the President a month before the Year 3 

blocking statute was enacted. Will, 449 U.S. at 229. The 

President had no further discretion to change the amount 

of the COLA. As the majority notes, “once the Executive 

had determined the amount,” the adjustments in Will

were automatically operative. Majority Op. 16 (quoting 

Will, 449 U.S. at 203) (internal quotation marks omitted). 

In the Williams years, at the time the blocking statutes 

were enacted, the prospective amount of the GS COLA 

could be calculated based on the Employment Cost Index 

figures released by the Bureau of Labor Statistics, al-

 

salaries in the civil service with those in 

the private sector and then recommend an 

adjustment to an Advisory Committee. 

Subsequently, the Committee would make 

its own recommendation to the President, 

accepting, rejecting, or modifying the 

agent’s recommendation as the Committee 

thought desirable. The President would 

have to accept the Committee’s recommendation—unless he determined that 

national emergency or special economic 

conditions warranted its rejection. 

Williams v. United States, 535 U.S. 911, 917 (2002) 

(Breyer, J., joined by Scalia & Kennedy, JJ., dissenting). 
7 BEER v. US

though the President generally did not announce a final 

amount until after the blocking statutes were enacted.4 

Thus, the COLA in Will Year 3 was just as “precise and 

definite” as the COLAs in the Williams years. 

Of course, the COLAs remained uncertain in another 

respect: in both Will and Williams, the presumptive GS 

COLA could still be overridden by Congressional action, 

and in fact it was overridden for one of the Williams

years.5 Again, there is no meaningful difference between 

the situations in Will and Williams.6 To summarize: in 

 4 For all the Williams years, GS salary adjustment 

tables were promulgated by Executive Order in the preceding December. Exec. Order 12944, 60 Fed. Reg. 309 

(Dec. 28, 1994); Exec. Order 12984, 61 Fed. Reg. 237 

(Dec. 28, 1995); Exec. Order No. 13033, 61 Fed. Reg. 

68987 (Dec. 27, 1996); Exec. Order No. 13106, 63 Fed. 

Reg. 68151 (Dec. 7, 1998). In each year, the judges’ 

COLAs had been blocked several weeks to months earlier. 

See Pub. L. 103-329, Title VI, § 630(a)(2), 108 Stat. 2382, 

2424 (1994); Pub. L. 104-52, Title VI, § 633, 109 Stat. 

468, 507 (1995); Pub. L. 104-208, Title VI, § 637, 110 

Stat. 3009-364 (1996); Pub. L. 105-277, Title VI, § 621, 

112 Stat. 2681-518 (1998). For one of the Williams years, 

1996, the President transmitted an Alternative Plan to 

Congress setting a 2% GS COLA before the blocking 

statute was passed. 31 Weekly Comp. Pres. Docs. 1466, 

1466-67 (1995). 

5 For 1995, Congress reduced the GS COLA to 2%. 

Pub. L. 103-329, Title VI, § 630(a)(1), 108 Stat. 2382, 2424 

(1994). The projected GS COLA had been 2.6%. See

Sharon S. Gressle, Cong. Research Serv., Order No. 

RS20278, Judicial Salary-Setting Policy 6 (March 6, 

2003). 

6 Under the Will scheme, in addition to enacting 

separate legislation, Congress could have disapproved the 

Alternative Plan by a one-house legislative veto. Will, 449 U.S. at 204. But a legislative veto would not have 

zeroed out the GS COLA; it would have reinstated the 

amount recommended to the President, id., which was 
BEER v. US 8

both Will Year 3 and in each of the Williams years, at the 

time the judges’ COLA was blocked, the amount of the GS 

COLA had been established, the President retained no 

discretion to change the GS COLA, and the COLA would 

have taken effect automatically, absent Congressional 

intervention. The Supreme Court upheld the blocking 

statute in Will Year 3. 449 U.S. at 229. Yet the majority 

maintains that the blocking statutes in Williams offend 

the Constitution. This distinction is baffling. 

Finally, the majority here suggests that Will is distinguishable because the statutes here (unlike the statutes 

in Will) imposed limits on the judges’ outside income, 

without “an increase in judicial pay.” Majority Op. 15. 

But the majority can hardly make a credible claim that 

judges’ outside compensation is protected by the Compensation Clause, and it follows that the reduction of outside 

compensation cannot create a Compensation Clause issue 

where none would otherwise exist.7 

III 

Even if the two statutory schemes were meaningfully 

different, and the Williams scheme created “reasonable 

judicial expectation[s] of future compensation” that did 

not exist in Will, Appellants’ Br. 29-31, that would be 

quite beside the point. Neither counsel for the appellants 

 

higher than the President’s figure in Will Year 3. See 14 

Weekly Comp. Pres. Docs. 1480 (Aug. 31, 1978). It is 

unclear how Congressional action to increase the GS 

COLA could have made the judges’ expectations of a 

COLA in Will Year 3 less “precise and definite.” The 

legislative veto was held unconstitutional after Will and 

before the Williams years. INS v. Chadha, 462 U.S. 919 

(1983). 

7 In fact, the 1989 Act did increase judicial pay by 

25%, thus offsetting the limitations on outside income. 

Pub.L. 101-194 § 703(a)(3), 103 Stat. 1716, 1768 (1989). 
9 BEER v. US

nor the majority is able to explain how that difference 

authorizes this court to disregard Will’s clear vesting rule. 

The majority concedes that “the vesting rules considered 

in Will are not expressly limited to the 1975 Act.” Majority Op. 16. There is no basis for concluding that a “reasonable expectations” test has supplanted the Will vesting 

rule as the governing test. Certainly no decision of the 

Supreme Court has shifted the governing principle from 

vesting to reasonable expectations. There is not even a 

claim that subsequent decisions of the Court have somehow “undermine[d] the reasoning” of Will. United States 

v. Hatter, 532 U.S. 557, 571 (2001) (quoting Will, 449 U.S. 

at 227 n.31) (internal quotation marks omitted). And 

even if Will had been undermined, it would not be this

court’s prerogative to overrule it. See id. at 567 (noting 

that because Evans had been undermined but not yet 

“expressly overrule[d],” the Federal Circuit “was correct in 

applying Evans” and thereby “invit[ing] us to reconsider” 

it). 

So too our job is to follow the holding of Will, not to 

confine it to its facts. Numerous Supreme Court decisions, and our own decisions, have made this clear. As 

the Supreme Court held in Thurston Motor Lines, Inc. v. 

Jordan K. Rand, Ltd., a Court of Appeals must not “confus[e] the factual contours of [Supreme Court precedent] 

for its unmistakable holding” in an effort to reach a “novel 

interpretation” of that precedent. 460 U.S. 533, 534-35 

(1983) (per curiam). See also, e.g., Marmet Health Care 

Ctr., Inc. v. Brown, 132 S. Ct. 1201, 1202 (2012) (per 

curiam) (a state court “misread[] and disregard[ed] the 

precedents of this Court” when it held the Federal Arbitration Act’s scope to be “more limited than mandated by 

this Court's previous cases”); Ariad Pharms., Inc. v. Eli 

Lilly & Co., 598 F.3d 1336, 1347 (Fed. Cir. 2010) (en banc) 

(“As a subordinate federal court, we may not so easily 
BEER v. US 10

dismiss [the Supreme Court’s] statements as dicta but are 

bound to follow them.”). 

The fact that three Justices of the Court, dissenting 

from a denial of certiorari, opined that Will might be 

distinguished from Williams is not authoritative. See

Williams, 535 U.S. at 917 (Breyer, J., joined by Scalia & 

Kennedy, JJ., dissenting). A dissent from a denial of 

certiorari cannot “destroy[] the precedential effect” of a 

prior opinion. Teague v. Lane, 489 U.S. 288, 296 (1989). 

This court has recognized that neither the agreement of 

three dissenting Justices, nor the approval of their reasoning by concurring Justices in later cases, can “transform a dissent into controlling law.” Prometheus Labs., 

Inc. v. Mayo Collaborative Servs., 628 F.3d 1347, 1356 n.2 

(Fed. Cir. 2010), rev’d on other grounds, Mayo Collaborative Servs. v. Prometheus Labs, Inc., 132 S. Ct. 1289 

(2012). 

In short, neither the dissent from denial of certiorari 

in Williams nor the Supreme Court’s remand in this case 

can be read as an invitation for this court to perform 

reconstructive surgery on Will. The Supreme Court may 

distinguish its own opinions by limiting them to their 

facts, see, e.g., Williams v. Illinois, 132 S. Ct. 2221, 2242 

n.13 (2012), or choose to overrule them, see, e.g., Hatter, 

532 U.S. at 567, but that is not an option for this court. 

We respectfully dissent.8

 8 Appellants also argue that the 2007 and 2010 

COLAs were improperly withheld because no blocking 

legislation was enacted in those years, and Section 140, as 

amended in 2001, was either inapplicable or unconstitutionally discriminated against federal judges under the 

Supreme Court’s decision in Hatter. While we agree that 

this issue is not resolved by Will, these statutory and 

constitutional arguments were not properly raised below, 

and we decline to address them here. 
United States Court of Appeals 

for the Federal Circuit 

__________________________ 

PETER H. BEER, TERRY J. HATTER, JR., 

RICHARD A. PAEZ, LAURENCE H. SILBERMAN, 

A. WALLACE TASHIMA AND U. W. CLEMON, 

Plaintiffs-Appellants, 

v. 

UNITED STATES, 

Defendant-Appellee. 

__________________________ 

2010-5012 

__________________________ 

Appeal from the United States Court of Federal 

Claims in No. 09-CV-037, Senior Judge Robert H. Hodges, 

Jr. 

__________________________ 

O’MALLEY, Circuit Judge, with whom MAYER and LINN, 

Circuit Judges, join, concurring. 

I join the majority, both in the judgment it reaches 

and in its reasoning. I write separately to address two 

issues. 

First, I write to explain why I believe that, if United 

States v. Will, 449 U.S. 200 (1980), must be read as 

broadly as the dissent and the Williams v. United States, 

240 F.3d 1019 (Fed. Cir. 2001) majority believes it must, 

then Will was wrong and the Supreme Court should say 

so. Second, I write because I believe that, whatever its 
BEER v. US 2

current statutory reach, Section 140 is unconstitutional 

and Congress can no longer rely on it to stagnate judicial 

compensation. 

I 

I first turn to Will. I agree with the majority that Will

did not reach the issue presented here and, thus, does not 

dictate the result we may reach today. The position taken 

by the dissent, and by the Williams majority before it, is 

not without some force, however. One cannot deny that 

the adjudicatory principles upon which they rely are 

important ones, even if the majority concludes they are 

not determinative here. If the dissent is correct that we 

are forced to glean sweeping Compensation Clause principles from Will governing all forms of statutory enactments designed to increase judicial pay, we must also be 

forced to conclude that Will’s analysis is flawed, both 

jurisprudentially and constitutionally. 

A. Jurisprudentially 

I find several aspects of the Will decision problematic. 

First, a close look at the facts and reasoning in Will

reveals its internal inconsistency; neither its analysis nor 

its ultimate conclusion matches the facts presented. 

Specifically, while the Court in Will initially characterized 

the statutory scheme at issue there as “automatic,” 449 

U.S. at 223, it later justified its Compensation Clause 

holding by characterizing congressional action blocking 

salary increases under the scheme as merely modifying 

“the formula” by which “future” increases were to be 

calculated. Id. at 227-28. Next, if the language employed 

in Will is meant to set down a “vesting” principle applicable in all Compensation Clause challenges, I believe the 

Court both: (1) violated the long-standing principle that 

courts are to decide only the cases before them and must 

only reach constitutional issues if and to the extent neces-
3 BEER v. US

sary; and (2) landed upon a holding that, taken to its 

logical extreme, creates absurd results. 

1. Use of the Term “Automatic” 

As the majority notes, the statutory scheme at issue 

in Will – the Executive Salary Cost-of-Living Adjustment 

Act of 1975, Pub. L. 94-82, 89 Stat. 419 (Aug. 9, 1975) 

(“the Adjustment Act”) – was a complex scheme, fraught 

with discretion and uncertainty. Despite this, Will characterized the Adjustment Act as a pay adjustment scheme 

which contemplated “automatic” pay increases. At issue 

in Will was the constitutionality of Congress’s decision to 

enact statutes preventing high-level Executive, Legislative, and Judicial officials, including Article III judges, 

from receiving COLAs in four consecutive years where 

General Schedule federal employees received increases. 

The Court noted that these blocking statutes were designed to “stop or to reduce previously authorized cost-ofliving increases initially intended to be automatically

operative” under the Adjustment Act. Will, 449 U.S. at 

203 (emphasis added). The Court then phrased the 

question presented in Will as: “when, if ever, does the 

Compensation Clause prohibit the Congress from repealing salary increases that otherwise take effect automatically pursuant to a formula previously enacted?” Id. at 

221 (emphasis added). 

As the majority notes, it is hard to understand the 

Court’s use of the term automatic in the context of the 

Adjustment Act. Normally, to say something is “automatic” is to say it occurs involuntarily or without further 

debate. See Oxford English Dictionary def. A(1); A(7)(a) 

(3d ed. June 2011; online version June 2012); see also

American Heritage Dictionary 121 (5th ed. 2011) (def. 2a: 

defining “automatic” as “[a]cting or done without volition 

or conscious control; involuntary”). Nothing about the 
BEER v. US 4

judicial salary adjustments at issue in Will was “automatic,” however. 

To the contrary, the adjustments at issue in Will were 

based on civil service salary adjustments that were entirely discretionary. As explained by the majority, 

whether federal employees would receive a COLA, and in 

what amount, depended on the initial recommendations of 

an adjustment agent which were then subject to review by 

an Advisory Committee, the President, and Congress. 

This procedure hardly can be described as one that occurs 

involuntarily. In addition, the statutes setting forth 

future COLAs were “neither definite nor precise,” and 

nothing provided that adjustments would be calculated 

“in a mechanical way.” Williams v. United States, 535 

U.S. 911, 917 (2002) (Breyer, J., joined by Scalia and 

Kennedy, JJ., dissenting from denial of certiorari). Because the statutory scheme under the Adjustment Act 

“was imprecise as to amount and uncertain as to effect,” 

the Court’s characterization of the increases under the 

Adjustment Act as “automatic” is difficult to follow. See

id. 

The dissent explains the Court’s mischaracterization 

of the Adjustment Act’s pay scheme by noting that, for the 

years in question in Will, the statutory scheme had run 

its course and resulted in a recommended salary increase 

by the time Congress acted to block those increases. This, 

the dissent seems to suggest, explains why the Supreme 

Court used the term “automatic” to describe what was 

before it. While that argument has a certain logic to it, it 

does not explain why the Court’s constitutional analysis 

focused on the absence of a guarantee under the Adjustment Act. 

According to the Supreme Court, the Adjustment Act 

did not “alter the compensation of judges; it modified only 
5 BEER v. US

the formula for determining that compensation.” Will, 

449 U.S. at 227 (emphases in original). And, the Court 

said that the blocking statutes merely represented a 

decision to “abandon” that “formula.” It then admonished 

that, “[t]o say that the Congress could not alter a method 

of calculating salaries before it was executed would mean 

the Judicial Branch could command Congress to carry out 

an announced future intent as to a decision the Constitution vests exclusively in the Congress.” Id. at 228 (emphasis added). It was on this reasoning that the Court 

concluded that a salary increase does not “vest” for Compensation Clause purposes until it becomes part of a 

judge’s compensation that is due and payable and that 

Congress had not violated the Compensation Clause when 

it did not allow certain increases under the Adjustment 

Act to “vest.” 

Thus, the Court explained its Compensation Clause 

decision in Will by saying it was only dealing with a 

formula regarding an expressed “future intent” to provide 

increases; the Court did not say at that point that it was 

addressing increases that had already been decided upon. 

More importantly, it did not say it was addressing definite 

increases that had been promised by operation of law; in 

explaining its assessment of the Act vis-à-vis the Compensation Clause, the Court spoke of the scheme under 

the Adjustment Act as one that promised no more than 

potential adjustments. And, in discussing the concept of 

vesting, the Court seemed to back away from the notion 

that it was dealing with anything one could consider 

“automatic” in the common sense of that word. How can 

an increase occur “automatically” if a right to it had not 

yet “vested”? 

While I understand why the dissent believes we must 

assume the Supreme Court meant what it said when it 

described the Adjustment Act increases as “automatic” 
BEER v. US 6

ones, that assumption would mean that the Court’s 

description of the facts presented had little correlation 

with its reasoning for why those facts did not run afoul of 

the Compensation Clause. 

2. Constitutional Avoidance 

Next, if we read Will as broadly as Williams did, and 

the dissent now does, we must assume that, in Will, the 

Supreme Court violated its own well-established principle 

of constitutional avoidance. The Supreme Court has longrecognized that “[j]udging the constitutionality of an Act 

of Congress is ‘the gravest and most delicate duty that 

this Court is called upon to perform.’” Citizens United v. 

Fed. Election Comm’n, 558 U.S. 310, 130 S.Ct. 876, 917-18 

(2010) (Roberts, C.J., concurring) (quoting Blodgett v. 

Holden, 275 U.S. 142, 147-48 (1927) (Holmes, J., concurring)). The Court’s standard practice, therefore, has been 

to “refrain from addressing constitutional questions 

except when necessary to rule on particular claims before 

[it].” Id. at 918 (citing Ashwander v. TVA, 297 U.S. 288, 

346-48 (1936) (Brandeis, J., concurring)). In furtherance 

of this practice, it has long been the rule that courts 

should “not ‘formulate a rule of constitutional law broader 

than is required by the precise facts to which it is to be 

applied.’” Ashwander, 297 U.S. at 347 (quoting Liverpool, 

New York & Philadelphia S. S. Co. v. Commissioners of 

Emigration, 113 U.S. 33, 39 (1885)); see also United States 

v. Raines, 362 U.S. 17, 21 (1960) (same). 

Applying this principle in Citizens United, Chief Justice Roberts explained that the Court’s “standard practice 

of avoiding broad constitutional questions except when 

necessary” gives rise to an “order of operations,” whereby 

the Court considers the narrowest claim first before 

proceeding, if necessary, to any broader claims. 130 S.Ct. 

at 918. Only if there is no valid narrow constitutional 
7 BEER v. US

ground available, should the court resolve any broader 

constitutional question. See id. 

If we assume that Will is to be read so broadly as to 

control the result under the very different set of facts 

presented here, we must also assume the Court spoke to a 

question not before it. The constitutional question properly raised in Will was whether, under the specific statutory scheme set out in the Adjustment Act, the four 

blocking statutes at issue diminished judicial pay in 

violation of the Compensation Clause. A fair reading of 

Will based on “the precise facts to which it [was] applied,” 

requires limiting the holding to the statutory scheme that 

was before the Court. See Ashwander, 297 U.S. at 347 

(Brandeis, J., concurring) (citation omitted); see also

Raines, 362 U.S. at 21. If Will is read to address a question broader than that presented – one that would govern 

a host of different congressional efforts to protect judicial 

pay from diminution in value – then we must conclude 

that, in Will, the Supreme Court ignored its own governing jurisprudential principles. 

In its briefing, the government concedes that there 

was a narrower approach the Court could have taken. 

Specifically, the government argues that, “even if the 

Supreme Court in Will could have based its decision upon 

the ‘discretionary’ character of the then-applicable statutory scheme, the Court did not decide the case upon that 

ground. The Court drew no such distinction.” Appellee’s 

Br. 26-27. If the government is right on this point, it is 

the very reason why Will was wrong to make the pronouncements upon which the government now relies. If 

the Court in Will consciously chose not to draw a distinction between a discretionary COLA scheme and a selfexecuting, non-discretionary one, it: (1) formulated a rule 

of constitutional law broader than required by the facts 

presented; and (2) ignored the fundamental precept that 
BEER v. US 8

judges decide only the cases before them. See Hein v. 

Freedom from Religion Found., Inc., 551 U.S. 587, 615 

(2007) (“Relying on the provision of the Constitution that 

limits our role to resolving the ‘Cases’ and ‘Controversies’ 

before us, we decide only the case at hand.”) 

3. Absurd Results 

Finally, the definition of “vesting” Williams gleaned 

from Will cannot be right. If it were: (1) Congress could 

do away with judicial retirement benefits for all sitting 

judges; (2) it would be inconsistent with the way the 

concept of vesting has been applied to similar pay increases for Members of Congress; and (3) it would run 

afoul of the common law understanding of the way in 

which future interests “vest” for all other purposes. It 

necessarily would lead to absurd results. 

First, if the definition of “vesting” Williams felt bound 

to under Will is correct, then Congress could eliminate 

judicial retirement pay for all sitting Article III judges 

without violating the Compensation Clause. By statute, 

Article III judges can retire with full pay once they reach 

a certain combination of age plus years of judicial service. 

See 28 U.S.C. § 371. Under this system, the Supreme 

Court has said that the right to receive retirement pay 

“d[oes] not vest until retirement” and the “system provide[s] nothing for a judge who le[aves] office before age 

65.” United States v. Hatter, 532 U.S. 557, 575 (2001). In 

other words, the Supreme Court has specifically held that 

retirement benefits do not vest until a judge retires and 

certain prerequisites are met. 

In Will, the Court concluded that vesting occurs when 

a salary increase “takes effect as part of the compensation 

due and payable to Article III judges.” 449 U.S. at 229. 

As such, for those years where the COLAs at issue in Will

had not yet become “due and payable,” the Court held 
9 BEER v. US

that the blocking statutes did not violate the Compensation Clause’s prohibition against diminishing judicial pay. 

See id. If we accept Will’s holding that Congress can 

abolish judicial salary adjustments at any time before 

they take effect, it logically follows that Congress would 

also be free to abolish judicial retirement pay at any time. 

The practical consequences of Will would place judicial 

retirement benefits at risk, despite the fact that the 

Supreme Court itself previously has characterized such 

benefits as “compensation” under Article III. See Hatter, 

532 U.S. at 574 (“the noncontributory pension salary 

benefits [are] themselves part of the judge’s compensation”). 

Second, Will’s definition of vesting conflicts with the 

way in which that concept has been applied in the context 

of the Twenty-Seventh Amendment. In Boehner v. Anderson, 30 F.3d 156 (D.C. Cir. 1994), the court addressed 

whether the 1989 Act (which also applies to Members of 

Congress) was inconsistent with the Twenty-Seventh 

Amendment which provides that: “No law, varying the 

compensation for services of the Senators and Representatives, shall take effect until an election of Representatives shall have intervened.” Id. at 159. The court held 

that the phrase “shall take effect” in the Amendment 

referred to the date the Ethics Reform Act first became 

operative – i.e., 1991 – rather than any earlier or later 

point in time. See id. at 161-62. Because the COLA 

provision of the Ethics Reform Act took effect in January 

1991, after an intervening election in 1990, that provision 

did not violate the Twenty-Seventh Amendment. Id. at 

162. The court also held that: (1) Congress is free to 

specify a formula for future and continuing salary increases; and (2) the COLAs under the 1989 Act were 

designated to occur automatically each year after 1991, 

with no additional law necessary. Id. at 162-63. All 
BEER v. US 10

yearly COLAs beyond 1990 thus became operative and 

“vested” for Members of Congress when the law was first 

effective in 1991.1 

In Williams, the appellee-judges relied on the holding 

in Boehner to contend that the COLA increases for judicial officers took effect, or vested, when the law was 

effective, not when the yearly COLAs became due and 

payable. Williams, 240 F.3d at 1036. This court recognized the holding in Boehner, but distinguished it on 

grounds that it dealt with a different question limited to 

Members of Congress. Specifically, the court found that 

Boehner “has no relevance . . . to the question of whether 

the judicial pay aspects of the 1989 Act could, consistent 

with Article III, be revised or abrogated by later Acts of 

Congress.” Id. at 1037. That question, the Williams court 

held, was already answered in the affirmative in Will’s 

holding that “vesting, for federal judges under Article III, 

occurs only when compensation begins to accrue to the 

judges, not when a particular adjustment formula is 

enacted.” Id. at 1036-37. By simply relying on Will to 

distinguish Boehner, the court in Williams avoided the 

more difficult task of trying to reconcile two contradictory 

approaches to what vesting means under the Constitution. 

We are now faced with two distinct definitions of the 

constitutionally effective date of congressionally enacted 

COLAs. While Will provides that, for Article III purposes, 

 1 In the alternative, the appellant in Boehner argued that, if the court found the COLA provision vested 

and constitutional, then a later-enacted statute that 

cancelled a planned COLA absent an intervening election 

violated the Twenty-Seventh Amendment. 30 F.3d at 

162. Although the answer to that question would be of 

interest to us now, the court declined to address it. See

id. at 162-63. 
11 BEER v. US

a COLA is effective when it becomes “due and payable,” 

regardless of when the law establishing that COLA was 

enacted or when it took effect, Boehner states that, for 

Article I and the Twenty-Seventh Amendment, a COLA 

vests when the law is first effective, even if not due and 

payable for years to come. Common sense and basic 

principles of interpretation counsel against drawing this 

distinction. 

While it is certainly true that the operative date of 

congressionally designated salary increases is not prescribed in the Constitution, both the Compensation 

Clause and the Twenty-Seventh Amendment address the 

Framers’ concerns with in-term salary changes for the 

respective branches of government – one with decreases 

in-term and the other with increases in-term. I see no 

reason why the concept of vesting should be employed in a 

way to expand Congress’s ability to decrease judicial 

salaries under the Compensation Clause and be reframed 

under the Twenty-Seventh Amendment so as to expand 

Congress’s ability to increase its own. 

Finally, the vesting rule articulated in Will is an outlier. As this court in Williams correctly noted, “[t]ypically, 

‘vesting’ of future interests only requires two components: 

an identification of the future owner, and certainty that 

the property would transfer.” 240 F.3d at 1032 (citing 2 

Blackstone Commentaries 168; Simes & Smith, The Law 

of Future Interests, § 65, pp. 54-55 (2nd ed. 1956)). This 

view of vesting of future interests is “more consistent with 

black-letter [law].” See id. at 1038. The Supreme Court, 

nevertheless, “departed from traditional vesting rules” for 

future interests and announced a peculiar “actual possession” rule for Article III. Id. at 1032. Will ignored the 

standard rule for vesting of future interests and created a 

unique rule solely for judicial compensation. See id. at 

1038. Despite recognition of its illogic, the Williams panel 
BEER v. US 12

felt compelled to reject the use of traditional vesting rules 

for Compensation Clause purposes because it found those 

rules to be “simply contrary to the rule established by the 

Supreme Court in Will.” Id. at 1033.2 

If we are to believe that Will advanced such an extreme vesting rule – one applicable only to the Compensation Clause – then the Court should reexamine that rule 

and correct its mistake. Had the Supreme Court in Will

applied the generally-accepted rule for vesting of future 

interests to the Adjustment Act, the same one the 

Boehner court applied to congressional pay increases, 

then a COLA whose formula was codified by law would 

vest, at an absolute minimum, once the amount of the 

COLA was established for a particular year. This approach is grounded in “sound equitable principle[s]” and, 

as we recognized in Williams, has deep common-law roots. 

See id. at 1032-33. 

For the reasons explained in further detail below, as 

the majority has noted, a more reasonable, consistent, 

and logical definition of “vesting” under Article III should 

be governed by the “reasonable expectations” of sitting 

 2 Indeed, despite awareness of Will, various 

state courts interpreting analogous provisions of their 

own constitutions have held that the failure to provide 

statutorily promised COLAs unconstitutionally diminishes judicial compensation. See e.g., Jorgensen v. Blagojevich, 811 N.E.2d 652, 664 (Ill. 2004) (noting that the 

standards for conferring and calculating COLAs, which 

“were formulated following the United States Supreme 

Court’s decision in Will, expressly provided that COLAs 

were to be given on July 1, 1991, and on July 1 of each 

year thereafter and that such COLAs were to be considered a component of salary fully vested at the time the 

Compensation Review Board’s report became law”). Will’s 

“vesting” rule for Compensation Clause challenges – if 

that is really what it is – stands alone. 
13 BEER v. US

judicial officers. Put simply, if we are to read Will as 

broadly as Williams did, and the dissent now does, the 

Court should revisit Will’s unique vesting rule. 

B. Constitutionally 

If Will truly established an “actual possession” vesting 

rule for Compensation Clause purposes, that holding 

seems indefensible under the Constitution. The Framers 

formulated the Compensation Clause for the express 

purpose of maintaining judicial independence, in part by 

providing judges with reasonable expectations about their 

pay and the inability of Congress to reduce it. As interpreted in Williams, the Will rule defeats the Framers’ 

intent and threatens the governmental structure around 

which the Constitution was formulated. 

1. Historical Perspective and the Framers’ Intent 

The Compensation Clause “has its roots in the longstanding Anglo-American tradition of an independent 

Judiciary.” Will, 449 U.S. at 217. As the Supreme Court 

has recognized, the “colonists had been subjected to 

judicial abuses at the hand of the Crown, and the Framers knew the main reasons why: because the King of 

Great Britain ‘made Judges dependent on his Will alone, 

for the tenure of their offices, and the amount and payment of their salaries.’” Stern v. Marshall, 131 S. Ct. 

2594, 2609 (2011) (quoting the Declaration of Independence, para. 11). Against this backdrop, the Framers 

designed Article III to protect the public “from a repeat of 

those abuses.” Id. By giving judges life tenure and preventing the other branches from reducing judicial compensation, the Framers sought to “preserve the integrity 

of judicial decisionmaking.” Id. 

As the majority notes, in Federalist 79, Alexander 

Hamilton emphasized the importance of protecting judi-
BEER v. US 14

cial compensation. Specifically, he argued that, “[n]ext to 

permanency in office, nothing can contribute more to the 

independence of the judges than a fixed provision for their 

support.” The Federalist No. 79 at 385 (Alexander Hamilton) (Lawrence Goldman ed., 2008). Hamilton observed 

that, “[i]n the general course of human nature, a power 

over a man’s subsistence amounts to a power over his will.” 

Id. at 386 (emphasis in original). For this reason, the 

legislative branch must not “change the condition[s] of the 

[judiciary] for the worse” so that “[a] man may then be 

sure of the ground upon which he stands, and can never 

be deterred from his duty by the apprehension of being 

placed in a less eligible situation.” Id. 

Hamilton’s concerns, and those of many other Framers, were not merely academic. Indeed, throughout the 

former colonies, legislatures took retributive actions 

against judges with whom they disagreed, including 

attempts to remove judges who declared particular laws 

unconstitutional and to call judges before the legislature 

to answer for specific rulings. See Julius Goebel, Jr., 

Antecedents and Beginnings to 1801, in 1 History of the 

Supreme Court of the United States, 133-42 (Paul A. 

Freund ed., 1971). These events further supported the 

founders’ desire to insulate judges from the influence and 

control of the other branches of government. 

The Supreme Court has recognized that the primary 

purpose of the prohibition against reducing judicial salaries is “not to benefit the judges, but . . . to promote that 

independence of action and judgment which is essential to 

the maintenance of the guaranties, limitations, and 

pervading principles of the Constitution.” Evans v. Gore, 

253 U.S. 245, 253 (1920), overruled on other grounds by

Hatter, 532 U.S. at 571. The Compensation Clause should 

be “construed, not as a private grant, but as a limitation 

imposed in the public interest.” Id. It is the public that 
15 BEER v. US

benefits from a strong, independent judiciary that is free 

to issue decisions without fear of repercussion. 

The Framers’ desire to insulate judicial pay from the 

political process was the subject of much debate and 

angst. While, given the long tenure judges would be 

asked to serve, there was no doubt some provision should 

be made for salary increases, the Framers also feared 

that, if salary decisions were left entirely to Congress, the 

judiciary might be forced to curry favor with Congress to 

secure reasonable compensation increases. See Jonathan 

L. Entin & Erik M. Jensen, Taxation, Compensation, and 

Judicial Independence, 56 Case W. Res. L. Rev. 965, 972 

(2006). To address this concern, James Madison suggested indexing judicial pay to the price of wheat or 

another stable value. The Framers rejected that idea, 

however, for fear fluctuations in commodity prices, like 

inflation, might leave judges undercompensated. See 2 

The Records of the Federal Convention of 1787 44-45 (Max 

Farrand ed., 1911). 

Thus, while the Framers foresaw a need for in-term 

increases in judicial salaries and were concerned with 

leaving the task of providing those increases to Congress, 

they saw no alternative; no self-executing system they 

could devise seemed adequate to ensure that, given the 

dual effects of inflation and rising standards of living, 

judges would not be left undercompensated. So trust 

Congress they did, leaving to it the responsibility to guard 

against real decreases in judicial salary by future legislative enactments. 

In sum, the Framers intended to provide judges reasonable expectations about their pay. The Framers, to be 

sure, did not contemplate that a judges’ reasonable expectation would mean that he or she would become wealthy 

by taking the bench, or that Congress necessarily would 
BEER v. US 16

increase judicial salaries. They believed, however, that 

Congress would assess fairly and periodically the need for 

increases in judicial compensation, would provide increases when appropriate, and that, once it did so, judicial 

officers thereafter could rely on the fact that Congress 

could not take such increases away. 

2. The Expectations Approach in Practice 

Courts have long-endorsed this expectations-based 

approach to the Compensation Clause. Indeed, as Justice 

Breyer has noted, protecting “a judge’s reasonable expectations” is the “basic purposive focus” of the Compensation Clause. Williams, 535 U.S. at 916 (Breyer, J., joined 

by Scalia and Kennedy, JJ., dissenting from denial of 

certiorari). Likewise, Justice Scalia has argued that, 

when Congress takes away a previously-established 

component of the federal judicial “employment package,” 

it reduces compensation and thereby thwarts judicial 

expectations. See Hatter, 532 U.S. at 585 (Scalia, J., 

dissenting) (arguing that repeal of federal judges’ exemption from the Medicare tax was a reduction of compensation because those judges “had an employment 

expectation of a preferential exemption from taxation”). 

Consistent with this expectations-related focus, the 

Supreme Court has held that the Compensation Clause 

forbids laws “which by their necessary operation and 

effect withhold or take from the judge a part of that which 

has been promised by law for his services.” O’Donoghue v. 

United States, 289 U.S. 516, 533 (1933) (quoting Evans v. 

Gore, 253 U.S. 245, 254 (1920)). 

Other courts likewise have emphasized judicial expectations in their approach to the Compensation Clause. 

For example, in the early nineteenth century, the Circuit 

Court for the District of Columbia held that, “if [a judge’s] 

compensation has once been fixed by law, a subsequent 
17 BEER v. US

law for diminishing that compensation . . . cannot affect [a 

sitting judge].” United States v. More, 7 U.S. (3 Cranch) 

159, 160 n.2 (1805), writ of error dism’d for want of jurisdiction. In More, Congress had enacted and later abolished a system of fees for compensating justices of the 

peace in the District of Columbia. Id. One of the justices 

of the peace continued to charge fees under the abolished 

structure, and the government brought an indictment 

against him. Id. On appeal, the Circuit Court held that: 

(1) the compensation of justices of the peace was subject 

to the Compensation Clause; and (2) where a fee structure 

is set by law, a later-enacted statute diminishing or 

abolishing that structure violated the Constitution. Id. at 

161. Because sitting justices had an expectation that they 

would receive compensation consistent with the thenexisting fee structure, Congress could not take that structure away. 

In Will, the Supreme Court discarded the longstanding expectations-based approach to the Compensation Clause in favor of its “due and payable” vesting rule, 

without clear explanation for doing so. In a terse footnote, the Court distinguished More. See Will, 449 U.S. at 

228, n.32. Specifically, the Court claimed that, in More, 

“the fee system was already in place as part of the justices’ compensation when Congress repealed it” whereas 

“the increase [via the Adjustment Act] in Year 2 had not 

yet become part of the compensation of Article III judges” 

when it was repealed. Id. Careful consideration of the 

facts in More reveal that this is a distinction without a 

difference. The justices under the fee system in More

were not entitled to compensation until they actually 

rendered services. See More, 7 U.S. at 160 n.2 (“This 

compensation is given in the form of fees, payable when 

the services are rendered.”). At all times, the justices 

knew the precise amount they could charge for a particu-
BEER v. US 18

lar service, but they never knew how much their total 

compensation would be, for example, in a particular week. 

In other words, the fee system in More merely set out a 

structure for calculating the compensation, which was not 

“due and payable” – to use the Court’s terminology in Will

– until the justices performed the affirmative act of rendering services. 

The Adjustment Act formula was no different. In the 

same way that the justices under the fee system in More

did not know how much they would work in a particular 

year, under the Adjustment Act, Article III judges did not 

know how much their salary would increase in a particular year, if at all. But they did know that, once the formula was enacted for the year, it became part of the 

compensation due. For example, looking at Year 3 in 

Will, if we accept the dissent’s proposition that the COLA 

of 5.5% became automatic once the President’s alternative 

plan was adopted and transmitted to Congress – which 

was one month before the Year 3 blocking statute was 

enacted – then there is no doubt that, as was the case in 

More, the COLA “was already in place as part of the 

[judges’] compensation when Congress repealed it.” See

Will, 449 U.S. at 228, n.32 (citing More, 3 Cranch at 161). 

In the same way that Congress was prohibited from 

abolishing the fee structure in More because it was part of 

the justices’ compensation, so too should Congress have 

been prohibited from blocking the COLA for Year 3 in 

Will. 

Given these similarities, Will’s dismissal of More is 

unconvincing. The two opinions are irreconcilable. Either 

Will is incorrect, or the Court should have said that More

was wrong. The Supreme Court should return to the 

well-established expectations-based approach to the 

Compensation Clause. 
19 BEER v. US

3. The Consequences of Abandoning the Expectations 

Approach 

Assuming Will’s vesting rule allows Congress to bar 

“automatic” COLAs promised by definitive and precise 

legislative enactment, that rule is contrary to the constitutional balance the Framers carefully calibrated – one 

which, of necessity, delegated control over judicial salaries 

to the legislature, but did so in a way to guard against 

congressional retribution for unpopular judicial decisions. 

So understood, Will’s vesting rule puts at risk the principles the Framers struggled so hard to foster; it threatens 

to make the judiciary beholden to Congress in ways which 

undermine its independence. The Supreme Court should 

rethink such a rule. See e.g., Mistretta v. United States, 

488 U.S. 361, 383 (1989) (encouraging vigilance against a 

“provision of law” that “impermissibly threatens the 

institutional integrity of the Judicial Branch”) (quoting 

Commodity Futures Trading Comm’n v. Schor, 478 U.S. 

833, 851 (1986)). 

The Framers’ concerns were prescient. Statistics 

demonstrate that the erosion of judicial pay “has reached 

the level of a constitutional crisis that threatens to undermine the strength and independence of the federal 

judiciary.” Chief Justice John G. Roberts, Jr., 2006 YearEnd Report on the Federal Judiciary, 39 The Third 

Branch 1, 1 (2007). Not only is this not the world the 

Framers contemplated, it is approaching one they most 

feared. As Hamilton explained, if judicial independence is 

“destroyed, the constitution is gone, it is a dead letter; it is 

vapor which the breath of faction in a moment may dissipate.” Commercial Advertiser (Feb. 26, 1802) (reprinted 

in The Papers of Alexander Hamilton, Volume XXV 525 

(Columbia University Press 1977)). 
BEER v. US 20

III 

I finally turn to Section 140 of Pub. L. No. 97-92, 95 

Stat. 1183, 1200 (1981), and its role in our assessment of 

the legality of the congressional action challenged here. I 

agree with the majority that the existence of Section 140 

does not change the conclusion that the failure to provide 

COLAs mandated by the 1989 Act is unconstitutional, 

whether the withholding occurred before or after Congress amended that section in 2001. As the majority 

explains, by its own terms, Section 140 is not applicable to 

the salary adjustments contemplated by the 1989 Act. If 

it were, however, as the government contends it is, we 

could not enforce it because Section 140 is unconstitutional. 

Section 140 provides as follows: 

Notwithstanding any other provision of 

law or of this joint resolution, none of the 

funds appropriated by this joint resolution 

or by any other Act shall be obligated or 

expended to increase, after the date of enactment of this resolution, any salary of 

any Federal judge or Justice of the Supreme Court, except as may be specifically 

authorized by Act of Congress hereafter 

enacted . . . . 

Pub. L. No. 97-92, § 140, 95 Stat. 1183, 1200 (1981). 

Section 140 was a rider to a Joint Resolution providing 

continuing appropriations for fiscal year 1982. In Williams, we held that the government could not rely on 

Section 140 as justification for the blocking statutes 

passed in 1995, 1996, 1997, and 1999 because Section 140 

expired by its own terms on September 30, 1982. Williams, 240 F.3d at 1026 (citing Pub. L. No. 97-161, 96 

Stat. 22 (1982) (extending life of provisions from March 
21 BEER v. US

31, 1982 to September 30, 1982); Pub. L. No. 97-92, § 

102(c), 95 Stat. 1183 (1981)). 

After Williams, Congress enacted legislation that 

amended Section 140 to provide that it “shall apply to 

fiscal year 1981 and each fiscal year thereafter.” Act of 

Nov. 28, 2001, Pub. L. No. 107-77, § 625, 115 Stat. 803 

(“2001 amendment”). Today, the majority assumes that 

the 2001 amendment supersedes Williams’s holding that 

Section 140 expired, but agrees with the alternative 

holding in Williams that, even if not expired, the 1989 Act 

provides the additional authorization required by Section 

140. 

Were the majority’s conclusion on that point not correct, then we would be forced to conclude that Section 140 

violates the Compensation Clause, both because it singles 

out Article III judges for disadvantageous treatment and 

because it violates the principle of separation of powers. 

A. Section 140’s Discriminatory Effect 

The Supreme Court has held that a law violates the 

Compensation Clause when it “effectively single[s] out . . . 

federal judges for unfavorable treatment” in their compensation. Hatter, 532 U.S. at 559. In Hatter, the Court 

struck down a statutory scheme that required sitting 

federal judges to pay into the Social Security system while 

other high-level government officials potentially were 

exempt from making such payments. Id. at 564, 572-73. 

In finding the denial of the exemption to judges unconstitutional, the Court explained that the “practical upshot” 

of the statutory scheme was to disadvantage judges 

relative to “nearly every current federal employee.” Id. at 

573.3

 3 Justice Scalia did not join in this portion of 

the Court’s opinion, concurring on grounds that the 
BEER v. US 22

Section 140 is no different. It only overrides the 

automatic annual COLAs promised in the 1989 Act for 

judicial officers. All other federal employees – including 

high ranking Executive Branch appointees and Members 

of Congress – remain entitled to those “automatic” adjustments. Only judicial officers are beholden to Congress 

for an additional affirmative legislative enactment before 

they may receive the 1989 Act’s COLAs. Thus, post-2001, 

Section 140 turns the 1989 Act into a law that provides a 

financial benefit to all federal employees other than 

judges and puts the judiciary in the position of annually 

needing to “curry favor” with the legislature for compensation increases, just as the Framers feared. That clearly 

violates the Compensation Clause. See Hatter, 532 U.S. 

at 576; Williams, 535 U.S. at 911 (Breyer, J., joined by 

Scalia and Kennedy, JJ., dissenting from denial of certiorari) (“[Section 140] refers specifically to federal judges, 

and it imposes a special legislative burden upon their 

salaries alone. The singling out of judges must throw the 

constitutionality of the provision into doubt.”) (citing 

Hatter, 532 U.S. at 564)). “Judges ‘should be removed 

from the most distant apprehension of being affected in 

their judicial character and capacity, by anything, except 

their own behavior and its consequences.’” Hatter, 532 

U.S. at 577 (quoting James Wilson, Lectures on Law 

(1791), in 1 Works of James Wilson 364 (J. Andrews ed. 

1896)). 

 

Compensation Clause was violated because the congressional action violated the judicial officers’ reasonable 

expectations about their future income package. Hatter, 532 U.S. at 586 (Scalia, J., concurring in part and dissenting in part) (“I disagree with the Court’s grounding of this 

holding on the discriminatory manner in which the extension occurred.”). The “discrimination” theory, however, 

received the votes of a majority of the Justices and, therefore, is binding precedent. 
23 BEER v. US

The fear of disadvantageous treatment of judges under Section 140, as amended, is not hypothetical. Until 

recently, annual adjustments for federal judges remained 

in step with those for Executive Branch appointees and 

Members of Congress. When those groups received automatic adjustments under the 1989 Act, Congress also 

enacted the necessary special legislation to authorize an 

adjustment for judges. In fiscal year 2007, however, both 

General Schedule employees and Executive Branch 

appointees received an automatic adjustment under the 

1989 Act, but Congress did not enact special legislation to 

adjust judicial salaries. The same thing happened in 

fiscal year 2010. Thus, the link between judicial salary 

adjustments and those for Executive Branch appointees 

was severed such that all nonelected federal employees 

other than Article III judges received COLAs in those 

years.4 This is the very sort of individualized treatment 

of the judiciary that the Supreme Court has characterized 

as a “disguised legislative effort to influence the judicial 

will.” See Hatter, 532 U.S. at 571. Little could be more 

inconsistent with the Framers’ purpose and construct 

under the Compensation Clause. 

B. Section 140 and the Separation of Powers 

Section 140 separately poses a separation of powers 

problem because it conditions the award of COLAs to 

judges on the receipt of salary adjustments by Members of 

Congress. The government argues that, in enacting the 

1989 Act, “Congress made clear its intent to maintain a 

system of salary parity among Federal judges, members of 

 4 Members of Congress did not receive salary adjustments in 2007 or 2010 because they affirmatively 

chose to opt out of their right to receive them under the 

1989 Act. That choice was theirs, however, and not one 

otherwise mandated by preexisting legislation. 
BEER v. US 24

Congress, and high-level Executive branch officers.” 

Appellee’s Br. 17 (citing Report of the Bipartisan Task 

Force on Ethics on H.R. 3660, Government Ethics Reform 

Act of 1989, 135 Cong. Rec. 30,756 (Nov. 21, 1989)). As 

noted above, any “parity” objective vis-à-vis Executive 

Branch officers has been abandoned. And, it is precisely 

because Congress has continued to use Section 140 to 

force a parity between judicial salaries and its own that 

Section 140 violates the principle of separation of powers. 

The concern with the independence of the judiciary is 

one which flows directly from the tripartite form of government on which the Constitution is structured. In 

establishing the system of divided powers in the Constitution, the Framers believed it was essential that “the 

judiciary remain[] truly distinct from both the legislature 

and the executive.” Stern, 131 S.Ct. at 2608 (quoting The 

Federalist No. 78, p. 466 (C. Rossiter ed. 1961) (A. Hamilton)). Accordingly, as the Supreme Court has noted, the 

Framers built into the Constitution “a self-executing 

safeguard against the encroachment or aggrandizement of 

one branch at the expense of the other.” Mistretta, 488 

U.S. at 382 (quoting Buckley v. Valeo, 424 U.S. 1, 122 

(1976)). Although the three branches “are not hermetically sealed from one another,” Article III was designed to 

impose certain “basic limitations that the other branches 

may not transgress.” Stern, 131 S.Ct. at 2609 (citing 

Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 443 

(1977)). 

As noted earlier, the compromise the Framers struck 

under the Compensation Clause was one which would 

entrust to Congress the power and obligation to ensure 

reasonable salary adjustments for the judiciary over time. 

This was a compromise born of necessity, however; this 

mechanism for judicial salary adjustments was not meant 

to tie those adjustments to legislative salary changes, or 
25 BEER v. US

to make them dependent on prevailing political winds. 

The Framers certainly did not mean to use the Compensation Clause to blur the lines between the legislative and 

judicial branches. That is precisely what Section 140 

does, however. 

Congress has used Section 140 to link judicial pay to 

its own, affirmatively authorizing judicial compensation 

increases thereunder only in years where Congress finds 

it politically palatable to allow increases in its own. By 

using Section 140 in this way, Congress has ignored its 

constitutional duty to assess independently the adequacy 

of judicial compensation. And, it has ignored the obligation entrusted to it by the Framers to jealously guard the 

independence of the judiciary. “[W]hether the Judiciary is 

entitled to a compensation increase must be based upon 

an objective assessment of the Judiciary’s needs if it is to 

retain its functional and structural independence.” Maron v. Silver, 925 N.E.2d 899, 914 (N.Y. 2010) (finding 

link between legislative and judicial pay increases unconstitutional under New York state constitution). 

Because Section 140 skirts Congress’s obligations under the Compensation Clause and undermines the independence of the judiciary, it is unconstitutional. The 

Supreme Court repeatedly has made clear that it is the 

laws that “threaten[] the institutional integrity of the 

Judicial Branch” that violate the principle of separation of 

powers. Mistretta, 488 U.S. at 383 (quoting Commodity 

Futures Trading Comm’n v. Schor, 478 U.S. 833, 851 

(1986)). Under these well-established guideposts, Section 

140 must fail. 

IV 

I agree with the majority that the failure to provide 

COLAs promised by the 1989 Act to the judiciary violates 

the Compensation Clause. I also agree that Will does not 
BEER v. US 26

dictate a contrary result. “General propositions do not 

decide concrete cases.” Lochner v. New York, 198 U.S. 45, 

76 (1905) (Holmes, J., dissenting). The general concepts 

espoused in Will simply do not address the very concrete 

and different set of facts before us. If the Supreme Court 

concludes Will must be read as broadly as this Court felt 

forced to read it in Williams, however, Will must be 

overruled. To the extent Section 140 plays any role in the 

Court’s analysis of the issues presented here, moreover, 

the Supreme Court should address its constitutionality 

and put its use to rest. 
United States Court of Appeals 

for the Federal Circuit 

__________________________ 

PETER H. BEER, TERRY J. HATTER, JR., 

RICHARD A. PAEZ, LAURENCE H. SILBERMAN, 

A. WALLACE TASHIMA AND U. W. CLEMON, 

Plaintiffs-Appellants, 

v. 

UNITED STATES, 

Defendant-Appellee. 

__________________________ 

2010-5012 

__________________________ 

Appeal from the United States Court of Federal 

Claims in No. 09-CV-037, Senior Judge Robert H. Hodges, 

Jr. 

__________________________ 

WALLACH, Circuit Judge, concurring. 

I concur in the results, and in the reasoning of the decision, including the necessity of making this important 

determination that Congress may not exceed constitutional bounds in its relationship with the judiciary. I 

write separately only to clarify that this decision does not 

mean that any particular federal judge other than plaintiffs will necessarily accept accrued back pay.