                             NOTE: This order is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                          2010-5012

           PETER H. BEER, TERRY J. HATTER, JR., THOMAS F. HOGAN,
        RICHARD A. PAEZ, JAMES ROBERTSON, LAURENCE H. SILBERMAN,
                   A. WALLACE TASHIMA, and U.W. CLEMON,

                                                    Plaintiffs-Appellants,

                                               v.

                                       UNITED STATES,

                                                    Defendant-Appellee.

                      Appeal from the United States Court of Federal Claims
                    in case no. 09-CV-37, Senior Judge Robert H. Hodges, Jr.

                                         ON MOTION

Before MAYER, BRYSON, and DYK, Circuit Judges.

Order for the court filed by Circuit Judge DYK. Concurrence filed by Circuit Judge
MAYER.

                                          ORDER

       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 Claims 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 (COLAs) to

which they assert entitlement pursuant to the Ethics Reform Act of 1989. The United

States moved to dismiss the complaint. On October 16, 2009, the Court of Federal

Claims dismissed the complaint. In that October 16, 2009, order, the Court of Federal

Claims stated:

             Plaintiffs 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 Williams v. United States. Williams v. United States, 240 F.3d
      1019 (Fed. Cir. 2001), reh'g denied, 240 F.3d 1366, cert. denied, 535 U.S.
      911 (2002). They do not attempt to distinguish this case from Williams, or
      ask that we consider new or additional circumstances. Plaintiffs "do not
      oppose dismissal of the Complaint on the basis of the Williams
      precedent." See id.

Beer v. United States, No. 09-CV-37, at 1 (Fed. Cl. 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

affirmance 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
      affirmance. As noted above, plaintiffs do not deny that their claims are
      foreclosed by the Williams 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 States, 17
      F.3d 378, 380 (Fed. Cir. 1994).




2010-5012                                 -2-
Pet. for Initial Hr'g En Banc or, in the Alternative, Mot. for Summ. Affirmance, Beer v.

United States, No. 2010-5012, at 4-5 (Fed. Cir. Nov. 9, 2009).

       In response, the United States notes:

              The United States agrees that summary affirmance of the Court of
       Federal Claims' October 16, 2009 decision is appropriate. Moreover, we
       do not disagree that the Court of Federal Claims' judgment can be
       summarily affirmed upon the ground cited -- i.e., that the Court of Federal
       Claims' "ability to grant plaintiffs the relief they seek" is foreclosed by this
       Court's decision in Williams v. United States, 240 F.3d 1019 (Fed. Cir.
       2001) .

Def.-Appellee's Resp. to Pl.-Appellants' Mot. for Summ. Affirmance, Beer v. United

States, No. 2010-5012, at 2 (Fed. Cir. Nov. 12, 2009).

       In sum, the parties are in agreement that this court's opinion in Williams v. United

States, 240 F.3d 1019 (Fed. Cir. 2001), controls the disposition of this appeal by a panel

of this court. In Williams, we reviewed a judgment of the United States District Court for

the District of Columbia that held that the judges in that lawsuit were entitled to back pay

and future COLAs under the Ethics Reform Act of 1989. We reversed the district court's

judgment, holding that we were bound to do so by the Supreme Court's decision in Will

v. United States, 449 U.S. 200 (1980). Williams, 240 F.3d at 1029. This court denied

hearing en banc and subsequently denied rehearing and rehearing en banc in Williams.

       The parties agree, and we must also agree, that Williams controls the disposition

of this matter. Thus, we grant the motion for summary affirmance.

       Accordingly,

       IT IS ORDERED THAT:




2010-5012                                   -3-
     The motion for summary affirmance is granted.

                                            FOR THE COURT


     January 15, 2010                        /s/ Jan Horbaly
         Date                               Jan Horbaly
                                            Clerk




2010-5012                             -4-
                         NOTE: This order is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                      2010-5012

            PETER H. BEER, TERRY J. HATTER, JR., THOMAS F. HOGAN,
         RICHARD A. PAEZ, JAMES ROBERTSON, LAURENCE H. SILBERMAN,
                    A. WALLACE TASHIMA, and U.W. CLEMON,

                                                Plaintiffs-Appellants,

                                           v.

                                   UNITED STATES,

                                                Defendant-Appellee.

                  Appeal from the United States Court of Federal Claims
                in case no. 09-CV-37, Senior Judge Robert H. Hodges, Jr.

MAYER, Circuit Judge, concurring.

         I continue to believe Williams v. United States was wrongly decided for the

reasons set out in my opinion dissenting from the refusal to rehear that case en banc.

264 F.3d 1089, 1090-93 (Fed. Cir. 2001). But neither Congress nor the Supreme Court

has done anything in the interim that would warrant this court taking the matter up

again.




2010-5012                                -5-
