NOTE: This order is nonprecedential.

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 case no. 09-CV-037, Senior Judge Robert H. 

Hodges, Jr. 

__________________________ 

Before RADER, Chief Judge, NEWMAN, MAYER∗

, LOURIE, 

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

and WALLACH, Circuit Judges. 

PER CURIAM. 

O R D E R 

A petition for rehearing en banc was filed by Plaintiffs-Appellants and a response thereto was invited by the 

court and filed by Defendant-Appellee. 

The petition for rehearing was referred to the panel 

that heard the appeal, and thereafter the petition for 

rehearing en banc, response, and briefs amici curiae were 

referred to the circuit judges who are authorized to request a poll of whether to rehear the appeal en banc. A 

 ∗

 Judge Mayer participated in the decision on 

panel rehearing. 
BEER v. US 2

poll was requested, taken, and the court has decided that 

the appeal warrants en banc consideration. 

Upon consideration thereof, 

IT IS ORDERED THAT: 

(1) The petition of Plaintiffs-Appellants for panel rehearing is denied. 

(2) The petition of Plaintiffs-Appellants for rehearing 

en banc is granted. 

(3) The court’s opinion of February 17, 2012 is vacated in part, and the appeal is reinstated. 

(4) The parties are requested to file new briefs addressing the following issues: 

 a. Does the Compensation Clause of Article III of the 

Constitution prohibit Congress from withholding the 

periodic salary adjustments for Article III judges provided 

for in the Ethics Reform Act of 1989? 

 b. For purposes of the Compensation Clause, is there 

any difference between years 1995, 1996, 1997, and 1999, 

before the 2001 amendment to section 140 of Pub. L. 97-

92, and the years thereafter? 

 c. The court will entertain any arguments the parties 

regard as important to the issues raised in the petition. 

However, the court does not wish to entertain briefing on 

the issue of preclusion, which the en banc court regards as 

having been resolved by the panel decision of February 

17, 2012. 

(5) This appeal will be heard en banc on the basis of 

additional briefing ordered herein and oral argument. An 

original and thirty copies of en banc briefs shall be filed, 

and two copies of each en banc brief shall be served on 

opposing counsel. Plaintiffs-Appellants’ en banc brief is 

due 45 days from the date of this order. The en banc 

response brief is due within 30 days of service of the 

Plaintiffs-Appellants’ en banc brief, and the reply brief 

within 15 days of service of the response brief. Briefs 

shall adhere to the type-volume limitations set forth in 
3 BEER v. US

Federal Rule of Appellate Procedure 32 and Federal 

Circuit Rule 32. 

(6) Briefs of amici curiae will be entertained, and any 

such amicus briefs may be filed without consent and leave 

of court but otherwise must comply with Federal Rule of 

Appellate Procedure 29 and Federal Circuit Rule 29. 

(7) Oral argument will be held at a time and date to 

be announced later. 

FOR THE COURT

May 18, 2012

Date 

/s/ Jan Horbaly 

Jan Horbaly 

Clerk 

cc: Christopher Landau, Esq. 

Brian M. Simkin, Esq. 

Erin M. Dunston, Esq. 

Lawrence M. Friedman, Esq. 

Rebecca K. Wood, Esq. 

Jeffrey A. Lamken, Esq. 

Aaron M. Panner, Esq.