' NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2010-50‘i2
PETER H. BEER, TERRY J. HATTER, JR., THOMAS F. HOGAN,
R|CHARD A_ PAEZ, JAMES ROBERTSON, LAURENCE H. SlLBERlVlAN,
A. WALL_ACE TASHllVlA, and U.W. CLEMON,
PEaintiffs-Appe|iants,
V.
UNlTED STATES,
Defendant-Appel|ee.
Appea| from the United States Court of Federal C|aims
in case no. 09-CV-37, Senior Judge Robert H. Hodges, Jr.
ON iV|OTlON
Before lVlAYER, BRYSON, and DYK, Circuit Judges.
Order for the court filed by Circuit Judge DYK. Concurrence filed by Circuit Judge
MAYER.
0 R D E R
By order issued today, the en banc court has denied initial hearing en banc.
Peter H. Beer et al. (the plaintiffs) move in the alternative for summary affirmance of the
judgment of the United States Court of Federal C|aims in case no. 09-CV-37. The
United States responds and agrees that summary affirmance is appropriate. The
plaintiffs reply. --
The plaintiffs are eight current and former federal judges. On January 16, 2009,
the plaintiffs brought suit in the Court of Federal Claims, seeking back pay and
declaratory relief based on their assertion of an unconstitutional diminution of judicial
compensation due to the failure to receive cost-of-living salary adjustments (COi_As) to
which they assert entitlement pursuant to the Ethics Reform Act of 1989. The United
States moved to dismiss the compiaint. On October 16, 2009, the _Court of Federal
Claims dismissed the compiaint. in that October 16, 2009, order, the Court of Federal
Claims stated:
Piaintiffs acknowledge that the facts and the law of this case are
controlled entirely by a ruling of the Court of Appeals for the Federal
Circuit in l/WlIiams v. United States. l/Wilr'ams i/. United States,
240 F.3d
1019 (Fed. Cir. 2001),Ll1'g denied,
240 F.3d 1366, § denied
535 U.S.
911 (2002). They do not attempt to distinguish this case from V1/illiams, or
ask that we consider new or additional circumstances. P|aintiffs "do not
oppose dismissal of the Compiaint on the basis of the l/l/ii'liams
precedent." Seeid.
Beer v. United States, No. 09-CV-37, at 1 (Fed. C|. Oct. 16, 2009) (order dismissing
complaint).
The plaintiffs appealed and filed a petition for hearing en banc. Within the
petition for hearing en banc, the plaintiffs moved in the alternative for summary
afHrmance if the petition for hearing en banc were denied. As noted, the court today
denies hearing en banc. in the ordinary course pursuant to internal Operating
Procedure 2, paragraph 4, the motion for summary affirmance was referred to the
motions panel We now rule on that motion.
- in their motion for summary affirmance the plaintiffs state:
in the alternative plaintiffs respectfully move for summary
afHrmance. As noted above, plaintiffs do not deny that their claims are
foreciosed_by the Wr'Hr'ams precedent. Under that precedent, the decision
below "is so clearly correct as a matter of law that no substantial question
regarding the outcome of the appeal exists." Joshua v. United Sfates,
17
F.3d 373, 330 (Fed. car 1994).
201o-s012 - 2 _
