Legal Case Summary

. But the problem, and that seems to you, is your trying to distinguish Will on its facts. And the Supreme Court has told us on many occasions that a subordinate federal court is bound by the Supreme Court's reasoning and holding, and that it's not up to us to distinguish a way their cases based on factual differences. How do you deal with that? Your Honor, it is certainly true that the lower courts cannot overrule the Supreme Court's cases. But that doesn't mean that every single, that you have to overread their cases. And I guess the roadmap, the key point here is that in, when the Williams case went up to the Supreme Court, there was a dissent from denial of served by Justice Breyer, to Justice Scalia and Kennedy. And they didn't say, you need to, we need to overrule Will. They said, Will can be distinguished. Well, that they can do is the Supreme Court, but what case suggests that we as a subordinate federal court can deport from the reasoning of the Supreme Court and essentially confine a case to its facts? Well, Your Honor, again, I think the cases that we say in our briefs, like Illinois versus Lister and writer versus Sonnetone, stand for the proposition that I think you all as judges realize you have to do every day. Which is, even though you can't overrule the Supreme Court's cases, you have to, as a judge, exercise your judgment to try to figure out how broad or how narrow the holding is. And you, Supreme Court does not have a holding that is broader than the situation before. As Justice Breyer put it, I'm sorry? It doesn't. I mean, I've read the Supreme Court cases and there are numerous cases, first in being an example where the Supreme Court has chided a couple of appeals for departing from the reasoning of the case and looking only to the facts and finding a factual difference and telling us that that's not an appropriate way to proceed. Well, Your Honor, again, but I think it's important when you're looking at the reasoning to look at the context in which the reasoning was set forward and at the questions that were actually presented to the court in that case. And again, this is somewhat of a metaphysical question, I guess, and I think we have guidance from three members of Supreme Court at least and I realize that that's not a majority. But you also have a very significant hint that seems to me and this is from the majority of the Supreme Court is in the fact that the court remanded this very case. I mean, this case, as you know, was in the Supreme Court. Previously, the court remanded the case for consideration of the preclusion issue. Well, that would have been a very strange thing if this court's hands were absolutely bound and we were bound to lose as a matter of law and will. The court would have essentially been asked to provide you opinion and the remand order had a particular sense that went out to its way to say that further proceedings are for the court of appeals to decide in the first instance. So in a sense, the Supreme Court would invite an indicator of self. That just indicates the appropriateness of going beyond the preclusion issue. Well, that's correct, Your Honor, but it would be a tad strange to say the least if the result were pre-ordained. I mean, I think the Supreme Court. In other words, they would have denied correct correct or they would have just strange if will absolutely control this and you all had no discretion. You were absolutely bound by will. They would have essentially been remanding for advisory opinion and sending you all in a fool's era. Is there anything about the reasoning and will itself that reports your conclusion that will should be read more narrowly than the William Court read it? Your Honor, again, I think what I could say is that you have to understand the reasoning and will in light of the context and will. The context of a precise and definite, of a very imprecise regime that was overturned by the subsequent enactment

. So there is certainly some land bridging will that is favorable to the government's position here. But what I would say is, if you were to say, look, I'm sorry, we're lower foot, we're absolutely bound by will. So you would be reading will in such a way that for United consequences, it would be very strange to think that the Supreme Court would have done unanimously in that opinion by Chief Justice Berger, for instance with respect to retirement pay. As we've argued here, one of the key points is that if you take the government's theory, you take that one sentence on page 229 of will that compensation bets only when it becomes due and payable. Certainly, judicial retirement pay is not due and payable. Currently, it's not due and payable until a judge meets the besting conditions set forth in 2018 to its E371, which are the legal. Read out of the language in will where the court said that what it was doing was allowing Congress to change the formula for a calculation of a future payment to judges. I'm sorry? What do you read out of the fact that the will for it said what it was doing was allowing Congress to change the formula? It was characterized as an issue of a formula. I think that's because, maybe this goes to your earlier question, Your Honours, in will, there was no underlying promise. It was really a question about a formula. This is a question about a promise. In other words, this is much more than a formula. This is something when you put together the 1989 Act, Section 28, E461, which is about judicial pay, with 5 USC 53 of free, which is about the general schedule pay. Those together created a very precise and definite promise, which was precise as to amount of A and to the fact that you will get it automatically. That was the whole point of the 1989 Act. Let me see if I understand your position with respect to the point you're making now, the link between the GSP and the judges pay. As I understand it, the judges pay is in fact linked to the GSP under the statute of the 89 statute. And I take it your position is that if Congress should decide to reduce the formula for the GSP employees and the judges were reduced to the same extent with respect to the cost of lending increases, there would be no compensation clause violations, etc. No, you're wrong. So you think that the tie is there only under the current formula. Yes, you're wrong. So if, for example, the Post-Congressor decide that the ECI was really overcompensating GSP employees and judges for that matter, and decide to go say to the CPI and have a statute that says we're changing it to the CPI, that the judges would assume the CPI produced lower results. The judges would be entitled to have their co-less calculated under the ECI. Yes, for all time. No, well, they could change it and then new judges wouldn't necessarily have that expectation. But for all time, for all judges in the party. So they'll have repeal the 1989 Act, even if they repeal the whole thing and went to a different system for GSP compensation. That would still be a violation of the compensation

. Yes, Your Honor, because this was the promise that was set for 1989. It's still the promise to this day that the 1989 Act remains on the clock. And that was the deal that was done in 1989. And this wasn't some kind of accident or happenstance the way those two clauses worked together. The 1989 statute for regime was the result of years and years of study and dissatisfaction with the very regime that was an issue in will about federal employees, both at the general schedule level, and also see your executive service and judges having to go back to Congress a year after a year. And they said, you know something? This isn't working. Okay, they used to have this whole Rue Goldberg regime where you've had an agent who had to then have a reviewing commission go to the president and have a one house veto. So that's not working. What we're going to do is we're going to put severe restrictions on the ability of judges to earn outside income. And then this is all part of the deal that was reflected in the 1989 statute. But we're going to give judges self-executing and automatic co-less. That is entirely different than the regime that was at issue at will. We're not saying that individuals have had a contract with Congress. No, I think that's right. But I think the question is, the deal is historically accurate. There's no contract. Well, I think that's right. But I think in a sense, the compensation clause is a contract between the judiciary and Congress. It says Congress and what in wins are you, for wins are kind of cases you might actually need a contract. But I think what we're talking about here is what's set forth in the compensation clause itself by the founders. Who again, I just think we have to look back to what is the illuminating principle here. It's camel-thin principle that Congress shouldn't be able to change the judges' condition for the worst. Well, that, of course, raises the question, what is the judges' condition? Is it just what the judges have here to fore receive what has become doing available? Or can Congress, does Congress have the power to say, look, we don't have to do an indexing scheme for judges. But we're going to do an indexing scheme for judges. And we're going to give it to judges in precise indefinite terms. Could Congress repeal the 89 act? It couldn't repeal the 89 act in so far as it gave pay increases to judges, no, because that was the deal. Could it repeal it in the future? That is, could it say, for example, judges can go out and earn outside income. We're repealing the entire act

. Well, you know, that raises an interesting question, whether or not Congress could come up with an alternative regime that in a sense didn't wind up lowering the word. And that raises the question, if it's a real compensation to judges. I think that's a very interesting question, but I think you would certainly have to look for what is the compensating mechanism. For instance, to go back to the earlier hypothetical. Wasn't that question answered in Hatter? Well, I think it Hatter, of course, certainly recommended, benefits of all kinds can be a form of the compensation. The compensation is not strictly limited to pay. And that's why I think, frankly, one of the things that has changed since Williams was that Hatter indicates that retirement pay is part of the compensation that is due to the judges. That doesn't make sense. That cannot be true. If will is read as the government is reading it here, I think only amounts that are due and payable now are part of the compensation. You're not suggesting that the outside compensation is protected by the compensation. It might be your honor. If for instance, one could imagine the regime where Congress says, you know, we're not going to give judges any money. But the way we're going to let article three judges earn a living is that they're going to be allowed to practice law. If that were the regime, then that couldn't be changed. They couldn't say, well, you can't practice law now. And we're still not going to give you any money. Again, that raises some interesting issues. And there are always our issues about what kinds of benefits are considered to be part of compensation. The Hatter, there was an exemption from taxes. But as Justice Scalia noted there, and Majority also noted, you have to look at the overall package. Once you start to look at the overall package, I think it's clear that you're no longer looking just at things that were due and payable because benefits. Certainly, the promise of a co-luck is a benefit that you get. It's true and it is a judge in any job. But that same is true for retirement pay. You say, look, come work for us. The benefits are, your salary goes up every year to account for inflation. Look at this generous retirement package

. Do you think that Congress could increase the number of years required for eligibility for retirement pay? For people that leave the court, another of that seniors pay, it's retired. I think that the disability, which I think is now five years, supposedly it says five years isn't long enough for eligibility for disability. Let's make it seven. I think that raises very serious questions under the compensation clause. Again, once you accept that, as I think the Supreme Court has in Hatter at least, that benefits like that can be part of the package. But it would be okay, for example, to increase the required workload, let's say, senior judges. Yes, I don't think that that's a deny. You know, it's an effect, an increase, a lowering of the per hour. You know, it may be hard to draw the line at points. And again, if you say, look, the rule is now, what, 65, it's the rule of 80 now, 65 plus 15. They change it to the rule of 90. I think that would raise very serious questions under the compensation clause. Again, what's the point of the clause? We're protecting promises to judges. Those are promises that allow the judges going back to what Chief Judge Raider said at the beginning of Hatter rule necessity. Judges have to make pub decisions. Judges shouldn't have the fear that when they make those kind of pub decisions, the Congress may say, you know something? I think that that's wrong. I don't like that Obamacare ruling. You know something? I'm going to slash judicial pay by two percent. Well, that's no different than saying, you know, judges were scheduled to get this co-la for next year. Judges were going to get it. I don't like that ruling. I'm going to take away that co-la. The very vice that the clause was enacted to prevent, and with all respect, we think that the Williams Court, again, read more into the will decision that needed to be read. And so we respectfully ask the Court to look not so much just at the do-intailable standard, which again would leave retirement pay on the shopping block. But to look, what is the reasonable expectation that is faced on the level of deafness of the promise? The Williams dissent, we put a lot of emphasis on this notion that 89 acts was a bargain, or essentially with a legislative bargain, where the other income was wiped out. The outside income was wiped out, or the right to earn out, the outside income was wiped out. And in return for the promise of a future co-la. But is that bargaining really relevant? No, I certainly think that that's relevant in the sense that it underscores what a reasonable person would believe the promise to be

. In other words, I'm not sure you always would need kind of this quid trope, but I think it underscores the whole nature of the 1989 statutory regime as a fundamental departure from the previous regime. And so I do think that even though it may not be necessary to have that bitter plus of sleep, I think it underscores that judges were reasonably entitled to expect. Either when they're sitting on the bench looking at, should I stay on the job, or should I accept a general counsel offer, or if you're sitting at the kitchen table and you're pondering a judicial appointment, you and your family should say, look, I should be able to figure out, I look at what Congress has said, they said, you know, get a co-la. And unless the president declares these extraordinary circumstances, that's the deal that is being offered to the judges. And again, going back to the basic point of Hamilton, that Congress should not be able to change that for the worse. What's the prime court case that says that congressional promises are reasonable expectations of the standard as opposed to the vestigal of will? I think as Justice Breyer pointed out in his statement, or his dissent from the denial of cert in Williams, the whole point of the compensation clause is to protect the judges' re-resilification. I mean, we're facing the level of no less. Well, we're facing with a word compensation. So I will give you that the constitution isn't self-defining in terms of what the word compensation means. And the government's interpretation here is that it's only amounts that are actually doing payable. Our position is that to give effect to the intent of the framers and what Hamilton was trying to was talking about in federal 79, you have to recognize that what you're doing here is you're protecting the judges' reasonable expectations. So they're not chilled in terms of having something that they are entitled to expect taken away from them. Obviously, a future salary increase that is not yet enacted into law isn't a reasonable basis for thinking you're going to get that. So the idea at least is that a judge can't be reasonably chilled from exercising his or her judgment in a case based merely on the possibility of some future pay increase not an act. What happens from your reading of the federalist papers not from a Supreme Court case? Well, it comes from the constitution which is brought to life by the federalist papers. And again, you don't have to take my word for it with all respect, Your Honor. Justice Breyer, joined by Justice Scalia and Kennedy, has set forth this very point. Again, I understand that's not a majority of the court. But they have actually set forth the path for distinguishing will. And again, they didn't say we as a Supreme Court need to overrule will. They said will can be reasonably distinguished on these grounds. And I think that gives the discourse the path to do just that. And so you keep using the terms from comments and regional expectations. But all promises can be broken. And isn't the next station doesn't become reasonable when they're so sort of vestment of investment of an interest that has come into play. Well, Your Honor, with respect to just the premise of your questions, the compensation clause stands for the principle that all promises can't be broken. Congress has no constitutional authority to break the promise of judicial pay. So if Congress in fact had said, you will get, if Congress has paid you, I don't think the government even disputes that the paycheck that you're currently getting is quarter of a fuel schedule

. I think it's $184,700 a year. That they cannot break their promise to pay you that by paying you $150,000 next year. So the question then is, I agree with you, there is a question of vesting. But the question is, and we don't disagree with Will, that it certainly does vest once it's become due in payable. The question is, is that the only circumstance when it vestes? And this was a question that Will had no occasion to address, because it didn't have before a precise and definite regime. If Congress says, judges, instead of giving you $20,000 next year, we're going to give you $10,000 this year and $10,000 next year. Is that any different than giving you $20,000 all in one suit? And I would respectfully submit that from Hamilton's perspective, from the whole perspective of what on earth does clause is trying to protect. There's no constitutional difference. So that just right now to ask your question, the vesting rule you should look at then, doing payable is not in the Constitution either. That's the government's vesting rule. What we're asking you to do is adopt the vesting rule that we would respectfully submit is more consistent with the intent of the framers as evidence in the federal. We agree with you. We have to do the reman on damages. That's correct, you're on. And we've set forth in our brief that we think that this court's opinion in Hatter already sets forth how the damages calculation should be performed. I see a meeting into my rebuttal time, so I would respect that. I do have a question about that. Sure. The assuming, if it were true that we felt that Williams was right and that will control. But we agree with you that the section 140 is either not operative or unconstitutional. Then what impact is that on the 2007 and 2010 with holding of coales given that there was no blocking steps? Then it seems to me that at least you should reman for a for us to proceed on a claim for those two years for the coales for those two years because that is really independent of the will slash Williams points. And just to clarify, we have there would be a statutory. We have both a statutory and a constitutional challenge to the 2001 statute. And just to leave those are discriminatory. Well, we respect your honor. With respect to the stat, the constitutional argument, yes, that's the basis of it. With respect to the statutory argument, just to make this point clear. And this was pushed out more in the Amicus Brief of the Federal Judges Association in our brief

. The 2001 statute just says the 1981 statute comes back to life. It didn't actually reenact the 1981 statute. It just amended the 1981 statute and actually refers back to 1981. So what that statute did is that except that here and after an act, you need a specific authorization by Congress. It's quite clear. I think both this court and Williams recognize this and just the clarity of opinion in Williams in the Supreme Court that the 1989 statute is a statute here and after an act with respect to 1981. And therefore in the coales in the 90s, Congress affirmatively blocked it. But that's not true in 2007 and 2010. So even under the language of the 2001 statute, even if it is constitutional, it doesn't purport to block anything. So we should have gotten the coales in 2007 and 2010. And then there's also an argument that even if you disagree with that statutory interpretation, that the 2001 statute is on constitutional. The difference is in the reason that we respectfully submit, you should reach the constitutional question that there's also claims for damages in the earlier years of the six year statute of limitations period, which in this case was back 2003, arising from each paycheck we were getting in those periods was artificially lowered as a result of the denial of coales in the 1990s. And we obviously are not going back all the way to the 1990s. We can't do that with respect to the sexual limitations. But this goes back to the point I think that Chuck Lury was asking me about in terms of the damages calculation in Hatter, the court made it clear that each denial, each paycheck is an individual violation of the compensation clause. So we should be able to go back for periods in 2003, 456. And that's that is not answered just by with respect to the 2001 statute. The specific claim that you alluded to that's discussed in the amicus brief in the federal judges' association. Was that claim raised by you in the talk word? You're on our complaints talks about the withholding of the salary in those years. Certainly I think our complaint can be fairly bred to encompass that claim. And at the very least we should have given a chance to amend our complaint to make clear that we're doing a statute of complaints. The claim, except to claim under rule A, all you need is a plain and straightforward basis of the facts underlying the claims you want to go into detail on your legal theory. If I could reserve the balance of my time. Thank you Mr. Landau. Mr. Simpkin. May I please the court? The court of federal claims judgment of dismissals should be affirmed

. Your honours, we would submit that the arguments presented by all of the parties here, including Amicie, are many and buried. We agree with Mr. Landau that this case ultimately reduces to a relatively simple and straightforward issue. That is whether this court in Williams correctly concluded that the vesting and will, the vesting rules set forth by the court, will control this case. If it does, then the judgment should be affirmed. And on that issue, the question simply reduces to whether the plaintiffs have persuasively distinguished this case from will and in particular the statutory pay schemes that were considered by the court in Williams and the Supreme Court in Williams. We would submit your honours that there is no material distinction between the two pay schemes. Of course, the plaintiffs have characterized the scheme and will as being entirely discretionary, whereas the scheme created by or amended by the 1989 act is in the plaintiffs' characterization, entirely non-discretionary, self-executing, precise and definite. We would submit, again, your honours, that those characterizations in their simple characterizations of counsel don't hold merit when the specifics of the two schemes are compared. Under both schemes, future adjustments in judicial salaries were expressed in mandatory automatic turns. Both schemes required, they used the word, shall be adjusted to the race of pay. Moreover, under both schemes, those adjustments were to be made at a date certain in the future. Also, under both systems, the increases to judicial play were keyed or tied to increases in the general schedule settings. It wasn't a qualitative component to the scheme in will, though, that there was no guarantee that there would even be a recommendation for increases, whereas the scheme under the 1989 act is automatic. No, your honours, respectfully disagree. Under the old scheme, the president's page was required to prepare and submit a report. To make a recommendation, but it didn't say that it had to recommend any increase. Well, he was, if in his study and compilation of the surveys of the Bureau Labor Statistics, if it was concluded that there was no basis for an increase in a particular year, I suppose that could be true, but it could also be true under the modern system where the ECI and any year conceivably could reflect no change. So, the essential point is that under both systems, some adjustment had to be made unless the president stepped in under his special authority to reduce or deny an increase altogether based upon national emergency or economic conditions affecting the general welfare. And again, that's the third point is that exception of the president's alternative paid plan was exists under both schemes. So, what we have here is a scheme that is our substantially identical in terms of the mandatory nature of the adjustments. The fact that both schemes require the adjustments to be effective as of a date certain in the future, the similar trait that both judicial pay raises and GS pay raises are tied together and finally the notion that the president could step in for the stated grounds. It seems to me that under the will system that Congress retained a discretion to step in along with the president and to change to make adjustments. But that wasn't the case under the 89 system. It seems to me that Congress wrote itself out of that scheme. Is that correct? Not entirely, you're under the will scheme. As a general member, Congress always has a lurking power to step in and make changes under the spring force decision rule will. But under the specific provisions of the will scheme, Congress really didn't play a role unless and until the president stepped in and decided to present an alternative paid plan

. And then Congress had 30 days to either house of Congress could essentially veto that plan. And in the case of that occurring, then the president's pay agent proposal would govern. So, Congress didn't play an active role under the old system. But those functions that you just described were not included under the 89 system. No, there's not that sort of detailed system back and forth. No. But again, Congress could always conceivably under the rule of will step in and change the president's alternative pay. But in Congress didn't include itself under the 89 system. Should we view that system as more automatic than say the will system? No, Your Honor. The spring court and will regarded the old system as being automatic. The court's decision is replete with references to the automatic nature of the pay increases they're under. And again, replete with references to legislative history behind the blocking statute that the court was considering, which were done to prevent automatic pay increases from going into effect. So automatic means automatic. It means that unless some party intervenes, they are required to go into effect by a date certain. Mr. Sunkin, in 1989, more of the ethics reform act went into effect. Could the judges have stepped in, but then sitting judges and sought a prohibatory injunction against enforcement of the ban against outside income brews in? An injunction against? Could they take an action to keep it from going into effect? Well, I'm not aware of any ground. There wouldn't be a ground under the compensation clause, for example. I'm asking, could they have legitimately sought a prohibatory injunction? I'm not aware of a ground under the rules. Under the rules. Could they have sought a prohibatory injunction at that point before it went into effect? Of course, they could seek an injunction, but I'm not aware of any basis upon which they could prevail upon. The distinction I'm drawing is that after it went into effect, it's much harder. They have to seek a mandatory injunction. Presumably that's the case. You're all right. Thanks. With respect to the issue of retirement pay, which you allude to, I think, at pages 33 and 34, if you're brief, and the appellants come back and say that that's your discussion of that is deferred compensation. It gets you into hot water with respect to coales. Why is retirement pay deferred compensation, or is that your position? Well, that was the position articulated by the solicitor general in the will opposition. Right. And it's the position sort of articulated in your breathing, but I'm not sure it was firmly adhered to. Is that your position? Well, that was the position of the solicitor general. We certainly have no basis to depart from it here on the issue of what. So you're saying that then either a congressional change to the amount of retirement pay retirement in this sense being after someone leaves the judiciary, right? That either a change in the amount of the pay, or even a change in the number of years required for eligibility for ultimate retirement pay, would be a compensation clause problem? I don't think I can respond just so generally to that question, because it would be a misdivisive. I don't know the specifics if they would help, but I mean, suppose that they say instead of getting for everybody else gets, because you're going outside and you have an opportunity for other income, if you leave before the age of 70, you'll get half for everything else. That would be a compensation problem with respect to everyone in the judiciary, is that your position? Well, of course we haven't taken a position, but as Mr. Rufke, that's what you said in your brief, but maybe you didn't. Well, those portions of our brief were simply responding to the argument that this course decision and will somehow threatens or opposes a risk to a diminishment of retirement pay. Well, it does face on your reading of what investing means, couldn't it? Because I mean, you could have a judge that went on the bench in their 30s, who is on the bench for 30 years, but leave at age 64 and a half and get zero, because it's not doing payable until the rule of 80 is satisfied. So under your reading of will, by definition, it would put a risk that retirement pay for every single currently sitting judge, wouldn't it? Not necessarily, I'm going to know. As Mr. Landau noted, in Hatter, the court indicated that retirement pension benefits are part of the compensation. So just on that point alone, it presents a different issue. And of course, the court and Hatter made that point by also citing to him harmonizing its decision and will. So what will and Hatter mean with respect to compensation and how it's protected, I suppose, is for a future case, but our reading, and essentially, it's not necessarily our reading, but the discourse reading of will in Williams, doesn't pose a threat to retired pay, because the court was looking to number one different statutory provisions that set out salary increases in our retired pay. And more to give you to speak when you said what will and Hatter mean to compensation. You meant to say retirement pay now. But more importantly, in Williams and Will, the courts were guided by the history behind the compensation clause and how the specific issue of pay increases was raised and addressed by the framers. We don't have any similar evidence here, respecting pensions, for example. You're saying that some compensation can be taken away, but other compensation can't be? No, no, you're on. I'm just saying that it's a different issue. Either way, if you're saying do and payable is the test, it's got to be do and payable, right? Well, do and payable based upon current service, and we've drawn, that reiterated that distinction. Again, are you standing behind your arguments that the retirement pay is deferred compensation when it's not do and payable until the rule of 80 is satisfied? Well, we're noting that it can be likened to deferred compensation. I mean, it certainly was, and you're brief, I'm saying, are you standing behind that as a valid distinction? We certainly are not departing from that, no, you're on. But again, getting back to what we believe is the despositive issue and that is whether the two schemes are distinguishable. Now, as we understand it, the plaintiff simply haven't pointed to a particular provision made by the 89 act that makes the 89 act scheme any more precise or definite than the old scheme

. Why is retirement pay deferred compensation, or is that your position? Well, that was the position articulated by the solicitor general in the will opposition. Right. And it's the position sort of articulated in your breathing, but I'm not sure it was firmly adhered to. Is that your position? Well, that was the position of the solicitor general. We certainly have no basis to depart from it here on the issue of what. So you're saying that then either a congressional change to the amount of retirement pay retirement in this sense being after someone leaves the judiciary, right? That either a change in the amount of the pay, or even a change in the number of years required for eligibility for ultimate retirement pay, would be a compensation clause problem? I don't think I can respond just so generally to that question, because it would be a misdivisive. I don't know the specifics if they would help, but I mean, suppose that they say instead of getting for everybody else gets, because you're going outside and you have an opportunity for other income, if you leave before the age of 70, you'll get half for everything else. That would be a compensation problem with respect to everyone in the judiciary, is that your position? Well, of course we haven't taken a position, but as Mr. Rufke, that's what you said in your brief, but maybe you didn't. Well, those portions of our brief were simply responding to the argument that this course decision and will somehow threatens or opposes a risk to a diminishment of retirement pay. Well, it does face on your reading of what investing means, couldn't it? Because I mean, you could have a judge that went on the bench in their 30s, who is on the bench for 30 years, but leave at age 64 and a half and get zero, because it's not doing payable until the rule of 80 is satisfied. So under your reading of will, by definition, it would put a risk that retirement pay for every single currently sitting judge, wouldn't it? Not necessarily, I'm going to know. As Mr. Landau noted, in Hatter, the court indicated that retirement pension benefits are part of the compensation. So just on that point alone, it presents a different issue. And of course, the court and Hatter made that point by also citing to him harmonizing its decision and will. So what will and Hatter mean with respect to compensation and how it's protected, I suppose, is for a future case, but our reading, and essentially, it's not necessarily our reading, but the discourse reading of will in Williams, doesn't pose a threat to retired pay, because the court was looking to number one different statutory provisions that set out salary increases in our retired pay. And more to give you to speak when you said what will and Hatter mean to compensation. You meant to say retirement pay now. But more importantly, in Williams and Will, the courts were guided by the history behind the compensation clause and how the specific issue of pay increases was raised and addressed by the framers. We don't have any similar evidence here, respecting pensions, for example. You're saying that some compensation can be taken away, but other compensation can't be? No, no, you're on. I'm just saying that it's a different issue. Either way, if you're saying do and payable is the test, it's got to be do and payable, right? Well, do and payable based upon current service, and we've drawn, that reiterated that distinction. Again, are you standing behind your arguments that the retirement pay is deferred compensation when it's not do and payable until the rule of 80 is satisfied? Well, we're noting that it can be likened to deferred compensation. I mean, it certainly was, and you're brief, I'm saying, are you standing behind that as a valid distinction? We certainly are not departing from that, no, you're on. But again, getting back to what we believe is the despositive issue and that is whether the two schemes are distinguishable. Now, as we understand it, the plaintiff simply haven't pointed to a particular provision made by the 89 act that makes the 89 act scheme any more precise or definite than the old scheme. They seem to rely on their reply, but heavily on the fact that the provision respecting judicial pay increases, Section 461, states that rates of pay shall be adjusted. But as we pointed out in our brief, and as they have not responded to, that language shall be adjusted, originated not from the 1989 act, but from the original 1979-1975 Adjustment Act. Again, the two systems were materially similar in all respects for purposes of this course consideration. And so, in year three in Hatter, is it not the case that there was a specific number of standards before the blocking stance of August 31, 1995? I'm sorry, by an alternative plan submitted by the President. The number in year three in Will have been established that was a precise number at the time of the blocking stance. Yes, Your Honor. In one of the years in Will, the President did come in with an alternative plan. I believe it was your three. Yes, it was a precise number. Yes. Which again, the court, there's no indication in the Supreme Court's analysis in Will that a pay increase or a proposed increase would be irrevocable if it was non-disgressionary in some respect. It was simply a matter of timing under the Will's court decision. And so, there is no material distinction between on the facts, between this case and Will. And as your Honor, just like noted, really there's no basis here to the terms of this thing, which are the two cases on the facts. In many respects, this case is very similar to the Hatter case in which the court was presented with existing Supreme Court precedent, Evans-V-Gurl. Which held with respect to income tax assessment that such diminishing were unconstitutional. That was a criticized decision. It was called into question in some later respects by subsequent decisions. But this court was presented with it and had to apply it on a field of the Supreme Court, the Supreme Court commended this court for following existing precedent, noting of course it was only the court that could be overruled. In other words, cases, but then proceeded to hold that Evans was no longer a good law and overruled it. That's essentially the position we would submit plan of seren. They're faced with a controlling Supreme Court precedent. And if it is to be distinguished or a different role is to be applied or if it's reversed altogether, that's really something for the Supreme Court. You keep talking about distinguishing these cases on their facts. The Supreme Court, the Congress, wrote the 89 act with the will case, in mind. And it was tried to get away from the scheme that gave rise to will and the politics that went into living with it for 10 years after will. Why is that? That's interpreting a totally different statutory scheme. It's not a distinguishing, distinguishing case on its facts

. They seem to rely on their reply, but heavily on the fact that the provision respecting judicial pay increases, Section 461, states that rates of pay shall be adjusted. But as we pointed out in our brief, and as they have not responded to, that language shall be adjusted, originated not from the 1989 act, but from the original 1979-1975 Adjustment Act. Again, the two systems were materially similar in all respects for purposes of this course consideration. And so, in year three in Hatter, is it not the case that there was a specific number of standards before the blocking stance of August 31, 1995? I'm sorry, by an alternative plan submitted by the President. The number in year three in Will have been established that was a precise number at the time of the blocking stance. Yes, Your Honor. In one of the years in Will, the President did come in with an alternative plan. I believe it was your three. Yes, it was a precise number. Yes. Which again, the court, there's no indication in the Supreme Court's analysis in Will that a pay increase or a proposed increase would be irrevocable if it was non-disgressionary in some respect. It was simply a matter of timing under the Will's court decision. And so, there is no material distinction between on the facts, between this case and Will. And as your Honor, just like noted, really there's no basis here to the terms of this thing, which are the two cases on the facts. In many respects, this case is very similar to the Hatter case in which the court was presented with existing Supreme Court precedent, Evans-V-Gurl. Which held with respect to income tax assessment that such diminishing were unconstitutional. That was a criticized decision. It was called into question in some later respects by subsequent decisions. But this court was presented with it and had to apply it on a field of the Supreme Court, the Supreme Court commended this court for following existing precedent, noting of course it was only the court that could be overruled. In other words, cases, but then proceeded to hold that Evans was no longer a good law and overruled it. That's essentially the position we would submit plan of seren. They're faced with a controlling Supreme Court precedent. And if it is to be distinguished or a different role is to be applied or if it's reversed altogether, that's really something for the Supreme Court. You keep talking about distinguishing these cases on their facts. The Supreme Court, the Congress, wrote the 89 act with the will case, in mind. And it was tried to get away from the scheme that gave rise to will and the politics that went into living with it for 10 years after will. Why is that? That's interpreting a totally different statutory scheme. It's not a distinguishing, distinguishing case on its facts. Well, two different schemes starting all over again. The time there's much more thought that there would be one something different than the one that will settle with. Well, there's the Congress did three things. It was a respective compensation in the 89 act. Of course, it gave one time 25% pay increase. It restored to previously denied COLA's in fiscal years 89 and 90. And then it changed the method of calculating COLA's from the old report system to the ECI system. With respect to, of course, the first two, there was no notion that it was attempting to get around or deal with will at all. And even with respect to the change in to the ECI method, there's no indication that that was a response to the course decision in will. Well, it's unclear whether the plaintiffs are relying on some sort of quid pro quo or contract that Mr. Lowness seemed to say they weren't at least directly relying on that. But I'm referring to what Congress thought. They thought they were getting out of this business because they've been dealing with it year after year after year. It was just a statement that was a wish for the judges and everybody else who kind of go ahead and hand every year. They thought they were citing something up. We were all there, most of us were there at the time. So we know what they were trying to do. Like that, friends, you're telling us they failed. Well, I wouldn't say they failed, but I would refer the court back to the court. Change their minds. So the position. And they were in time too. It's not really a change of position. As the majority panel in Williams described, Congress wanted to create an automatic system of pay raises in 1975. There's no doubt about that. Just as it desired to continue to do that in 1989, the fact of the matter is it didn't change it enough to take it out from the rule of will in 1989. Simply changing the method of calculating the increase doesn't change the essential aspects of the scheme itself that the court and will found controlling. Council, we received a lot of information, especially from the Amicus brief said, any diminuation in the compensation of the federal judges puts at risk the impartiality and the independence of the federal judiciary and of course that invokes the doctrine of separation of powers

. Well, two different schemes starting all over again. The time there's much more thought that there would be one something different than the one that will settle with. Well, there's the Congress did three things. It was a respective compensation in the 89 act. Of course, it gave one time 25% pay increase. It restored to previously denied COLA's in fiscal years 89 and 90. And then it changed the method of calculating COLA's from the old report system to the ECI system. With respect to, of course, the first two, there was no notion that it was attempting to get around or deal with will at all. And even with respect to the change in to the ECI method, there's no indication that that was a response to the course decision in will. Well, it's unclear whether the plaintiffs are relying on some sort of quid pro quo or contract that Mr. Lowness seemed to say they weren't at least directly relying on that. But I'm referring to what Congress thought. They thought they were getting out of this business because they've been dealing with it year after year after year. It was just a statement that was a wish for the judges and everybody else who kind of go ahead and hand every year. They thought they were citing something up. We were all there, most of us were there at the time. So we know what they were trying to do. Like that, friends, you're telling us they failed. Well, I wouldn't say they failed, but I would refer the court back to the court. Change their minds. So the position. And they were in time too. It's not really a change of position. As the majority panel in Williams described, Congress wanted to create an automatic system of pay raises in 1975. There's no doubt about that. Just as it desired to continue to do that in 1989, the fact of the matter is it didn't change it enough to take it out from the rule of will in 1989. Simply changing the method of calculating the increase doesn't change the essential aspects of the scheme itself that the court and will found controlling. Council, we received a lot of information, especially from the Amicus brief said, any diminuation in the compensation of the federal judges puts at risk the impartiality and the independence of the federal judiciary and of course that invokes the doctrine of separation of powers. What should we respond to those comments? Well, of course, in general, that's true. That was the purpose that the compensation clause was created to provide a measure of security against threats to judicial independence. But as the court and will described in death and this court in Williams acknowledged, the framers grappled with the question of judicial pay increases. Of course, compensation was protected against diminution, but as far as increases to that compensation, that presented a problem to the framers. Ultimately, the compromise was to accept some degree of risk to the judicial independence by the Congress in exchange for the benefits afforded by having judicial salaries increased when times warranted. So the clause itself embodies some some acknowledge risk to independence. There was criticism criticisms of the end of the debates by the framers that allowing Congress to pass upon increases would cause judges to correct favor of this Congress. So while those pay increases were being considered, nevertheless, that was ultimately the compromise that was reached and that was the compromise that the court recognized and will and indeed drove it to the court. Mr. Symkin, on page 21 of your response, I agree. You say that the compensation clause doesn't prohibit Congress from changing the rate of a future increase or canceling it. Before judges have performed services which for which compensation is due unpayable. And the problem I have with it is who gets into the final services are. Isn't it at least a view that a service that the judge performs is going on the mention being a judge? Because otherwise, doesn't Congress get to say, well, geez, we've looked at what you did last year and you know those were very good opinions so they don't constitute services. And then you're running up against a load of law. Well, you're on and I think the portion of our break where we referenced provision of services, we were simply tying back through might not have been so precise, we were tying back to the rule of your summary of your argument as well. What it simply refers back to is the court's screen force treatment of that issue and will that services rendered beginning on the first. The 1201 AM. The 1201 January 1st services begin even if the judges in that work. Yes. Certainly not taking a position that a judge has to be up and performing some function. But under that theory though, then, could this Congress decide to drop the salary rate as long as they did it before 1201 on January 1st? No, in other words, your annual salary is 184,000, and could the Congress say, you know what, start in the next January 1st annual salary is 170,000. No, not at all. Why not? Because that's too impayable yet, isn't it? Well, it was part of the compensation doing payable to the judge in that prior year, that base salary of whatever whatever level it was. If Congress in any year says the salaries of the federal judges shall be 180,000 per year, the next year, of course, no one is saying Congress can come back and take that down. And the reason it can't take that down is because that salary level had become the compensation that was due impayable to the judges. It can't go back. And of course, the whole point of will is that for future increases, as opposed to base salary levels for future increases, those have not become part of the compensation due impayable

. What should we respond to those comments? Well, of course, in general, that's true. That was the purpose that the compensation clause was created to provide a measure of security against threats to judicial independence. But as the court and will described in death and this court in Williams acknowledged, the framers grappled with the question of judicial pay increases. Of course, compensation was protected against diminution, but as far as increases to that compensation, that presented a problem to the framers. Ultimately, the compromise was to accept some degree of risk to the judicial independence by the Congress in exchange for the benefits afforded by having judicial salaries increased when times warranted. So the clause itself embodies some some acknowledge risk to independence. There was criticism criticisms of the end of the debates by the framers that allowing Congress to pass upon increases would cause judges to correct favor of this Congress. So while those pay increases were being considered, nevertheless, that was ultimately the compromise that was reached and that was the compromise that the court recognized and will and indeed drove it to the court. Mr. Symkin, on page 21 of your response, I agree. You say that the compensation clause doesn't prohibit Congress from changing the rate of a future increase or canceling it. Before judges have performed services which for which compensation is due unpayable. And the problem I have with it is who gets into the final services are. Isn't it at least a view that a service that the judge performs is going on the mention being a judge? Because otherwise, doesn't Congress get to say, well, geez, we've looked at what you did last year and you know those were very good opinions so they don't constitute services. And then you're running up against a load of law. Well, you're on and I think the portion of our break where we referenced provision of services, we were simply tying back through might not have been so precise, we were tying back to the rule of your summary of your argument as well. What it simply refers back to is the court's screen force treatment of that issue and will that services rendered beginning on the first. The 1201 AM. The 1201 January 1st services begin even if the judges in that work. Yes. Certainly not taking a position that a judge has to be up and performing some function. But under that theory though, then, could this Congress decide to drop the salary rate as long as they did it before 1201 on January 1st? No, in other words, your annual salary is 184,000, and could the Congress say, you know what, start in the next January 1st annual salary is 170,000. No, not at all. Why not? Because that's too impayable yet, isn't it? Well, it was part of the compensation doing payable to the judge in that prior year, that base salary of whatever whatever level it was. If Congress in any year says the salaries of the federal judges shall be 180,000 per year, the next year, of course, no one is saying Congress can come back and take that down. And the reason it can't take that down is because that salary level had become the compensation that was due impayable to the judges. It can't go back. And of course, the whole point of will is that for future increases, as opposed to base salary levels for future increases, those have not become part of the compensation due impayable. What about the fact that the Fainter Court essentially says that once the Cola, once the system, the law passed in 89 and the system was put in place that all of those later Cola was completely automatic and they didn't constitute additional rates. They actually just constituted an automatic application of the 89. Do we have a different rule of investing for the 27th amendment than we do for the compensation class? Well, as this court in Williams addressed that issue, yes, there was a different issue. The court was looking to when pay raises took effect for purposes of the 27th amendment and held that that was a different issue from the issue addressed by the Supreme Court in will. So of course, if there is a tension or conflict between those two cases, the court's decision will, of course, will be controlling. Could I ask you about the 2007 and the flash 2010 claim raised in the Amicus brief that was alluded to earlier? That issue entirely turns, I take it, on whether Congress in 2001, when it amended Section 140, was amending it in a way that converted the hereafter enacted into something that had happened each year as opposed to the hereafter enacted referring to any act that occurred after 1981. Is that a fair statement of what you understand the distinction to be? Well, at least from our perspective, that's not really an issue. We would agree from the purpose of the argument that the hereafter point in time is 1981. Well, but if it's 1981, and if we conclude that the 1989 statute was hereafter enacted and I understand you have arguments as to why that's not true, but if we were to accept that, then you need for the re-unit. So the reading of a section of the amendment to Section 140, I take it to mean that hereafter enacted applies each year. In other words, an act has to be passed authorizing the increase each year. So if the answer is, are it 140 will keep it from going into effect? The Amicus brief says no, if the 1989 is hereafter because it was after 1981, and that's the date noted in Section 140 both as originally written and as a amendment. It didn't change the date from 1991. What's your answer to that? Well, again, we would agree for purposes of argument that the reference point is 1981. And therefore, the 1989 act could in theory be a law hereafter enacted, but as we argued in our brief, it simply couldn't be construed in that fashion because tellingly your honor, the 1989 act itself, cites to and references Section 140. And with respect to the restored colas in 1989 and 1990, specifically authorized those, those, but did not do so for any others. So there's no blocking legislation in 2007 and 2010, right? That's correct. So if in fact, we can through Section 140 is not interfering with the Williams holding that the 1989 legislation was here and after an acted legislation. What's the basis for denying the colas in 2007 and 2010? Well, there, I guess there would not be. I suppose there would be an action by Congress. And that would, in theory, trigger the automatic increase. You've just conceded a partial victory for the judges. I'm sorry. You've just conceded a partial victory for the judges. Well, not necessarily, your honor. If Congress through inaction fails to provide a increase required by law, that's not necessarily the same as a direct diminishing. In other words, it's not a law that mandates a reduction in the salary level. But just as a statutory matter, under the Williams interpretation of Section 140, why are the judges not entitled to the 2007 and 2010 colas? Well, the Williams disdigit in the address that 2001 amendment

. What about the fact that the Fainter Court essentially says that once the Cola, once the system, the law passed in 89 and the system was put in place that all of those later Cola was completely automatic and they didn't constitute additional rates. They actually just constituted an automatic application of the 89. Do we have a different rule of investing for the 27th amendment than we do for the compensation class? Well, as this court in Williams addressed that issue, yes, there was a different issue. The court was looking to when pay raises took effect for purposes of the 27th amendment and held that that was a different issue from the issue addressed by the Supreme Court in will. So of course, if there is a tension or conflict between those two cases, the court's decision will, of course, will be controlling. Could I ask you about the 2007 and the flash 2010 claim raised in the Amicus brief that was alluded to earlier? That issue entirely turns, I take it, on whether Congress in 2001, when it amended Section 140, was amending it in a way that converted the hereafter enacted into something that had happened each year as opposed to the hereafter enacted referring to any act that occurred after 1981. Is that a fair statement of what you understand the distinction to be? Well, at least from our perspective, that's not really an issue. We would agree from the purpose of the argument that the hereafter point in time is 1981. Well, but if it's 1981, and if we conclude that the 1989 statute was hereafter enacted and I understand you have arguments as to why that's not true, but if we were to accept that, then you need for the re-unit. So the reading of a section of the amendment to Section 140, I take it to mean that hereafter enacted applies each year. In other words, an act has to be passed authorizing the increase each year. So if the answer is, are it 140 will keep it from going into effect? The Amicus brief says no, if the 1989 is hereafter because it was after 1981, and that's the date noted in Section 140 both as originally written and as a amendment. It didn't change the date from 1991. What's your answer to that? Well, again, we would agree for purposes of argument that the reference point is 1981. And therefore, the 1989 act could in theory be a law hereafter enacted, but as we argued in our brief, it simply couldn't be construed in that fashion because tellingly your honor, the 1989 act itself, cites to and references Section 140. And with respect to the restored colas in 1989 and 1990, specifically authorized those, those, but did not do so for any others. So there's no blocking legislation in 2007 and 2010, right? That's correct. So if in fact, we can through Section 140 is not interfering with the Williams holding that the 1989 legislation was here and after an acted legislation. What's the basis for denying the colas in 2007 and 2010? Well, there, I guess there would not be. I suppose there would be an action by Congress. And that would, in theory, trigger the automatic increase. You've just conceded a partial victory for the judges. I'm sorry. You've just conceded a partial victory for the judges. Well, not necessarily, your honor. If Congress through inaction fails to provide a increase required by law, that's not necessarily the same as a direct diminishing. In other words, it's not a law that mandates a reduction in the salary level. But just as a statutory matter, under the Williams interpretation of Section 140, why are the judges not entitled to the 2007 and 2010 colas? Well, the Williams disdigit in the address that 2001 amendment. Well, but you say that that just changed the result with respect to the continued operation of the statute, which was one of the grounds. And what Williams said, we can screw 140 by the part from the question of whether it was continuing legislation to encompass the 1989 legislation. And that was legislation here and after an acted within the meeting of 140, accepting that interpretation in Williams. Is it not the case that the 2007 and 2010 colas were improperly denied since there was no change? Well, the decision in Williams didn't specifically address the question of specific authorization. It held that the two statues were in conflict alone. Let me put it this way. If 140 is here and after an acted legislation, if the 1989 ethics reform act within the meeting of 140 is here and after an acted legislation, then it is the case that the 2007 and 2010 colas were improperly denied, isn't it? Yes, that would be the case. If there was, if there was an automatic right to them and there was no action either by the president or Congress, we would say yes. So you are not arguing then that the 2001 amendment to section 140 placed section 140 as a bar to any automatic increases and the automatic colas for judges in each year thereafter. Well, as I am saying, the language of the statute is admittedly somewhat murky, but looking at the language of the conference committee makes permanent provision that prohibits the use of funds to increase the salary of a federal judge except as maybe specifically on the right back of Congress. You are not arguing that that language to the extent that it reflects the meaning of the statute imposes a bar to the automatic increases, even in the absence of specific barring legislation in a given year. Well, we have argued that section 140 was effective from the date of its enactment to this day. Again, the court and Williams disagreed with that in the interpretation, but in our view, that is the proper interpretation. So in that sense, yes, 140 was effective in each year and would require a certificate of approval. So the effect of that argument is one follow-up question from me. So if we will assume that there is nothing much to indicate this, but if we assume that the 2001 amendment to 140 was effective in response to that portion of the Williams decision that discussed one for it, we are attempting to say, well, no, we are going to make it permanent even though the federal circuit doesn't think it is, then you think 140 would block automatic colas for the public. So even in the absence of specific year-to-year blocking legislation, is that correct? I would say that could be an interpretation because 140 provides notwithstanding any other laws. Is it your position? Yes. No, thank you, Mr. Sinkin. Okay. Your Honor, is it my... I am... Time's expired

. Well, but you say that that just changed the result with respect to the continued operation of the statute, which was one of the grounds. And what Williams said, we can screw 140 by the part from the question of whether it was continuing legislation to encompass the 1989 legislation. And that was legislation here and after an acted within the meeting of 140, accepting that interpretation in Williams. Is it not the case that the 2007 and 2010 colas were improperly denied since there was no change? Well, the decision in Williams didn't specifically address the question of specific authorization. It held that the two statues were in conflict alone. Let me put it this way. If 140 is here and after an acted legislation, if the 1989 ethics reform act within the meeting of 140 is here and after an acted legislation, then it is the case that the 2007 and 2010 colas were improperly denied, isn't it? Yes, that would be the case. If there was, if there was an automatic right to them and there was no action either by the president or Congress, we would say yes. So you are not arguing then that the 2001 amendment to section 140 placed section 140 as a bar to any automatic increases and the automatic colas for judges in each year thereafter. Well, as I am saying, the language of the statute is admittedly somewhat murky, but looking at the language of the conference committee makes permanent provision that prohibits the use of funds to increase the salary of a federal judge except as maybe specifically on the right back of Congress. You are not arguing that that language to the extent that it reflects the meaning of the statute imposes a bar to the automatic increases, even in the absence of specific barring legislation in a given year. Well, we have argued that section 140 was effective from the date of its enactment to this day. Again, the court and Williams disagreed with that in the interpretation, but in our view, that is the proper interpretation. So in that sense, yes, 140 was effective in each year and would require a certificate of approval. So the effect of that argument is one follow-up question from me. So if we will assume that there is nothing much to indicate this, but if we assume that the 2001 amendment to 140 was effective in response to that portion of the Williams decision that discussed one for it, we are attempting to say, well, no, we are going to make it permanent even though the federal circuit doesn't think it is, then you think 140 would block automatic colas for the public. So even in the absence of specific year-to-year blocking legislation, is that correct? I would say that could be an interpretation because 140 provides notwithstanding any other laws. Is it your position? Yes. No, thank you, Mr. Sinkin. Okay. Your Honor, is it my... I am... Time's expired. Okay, I have any final thoughts. I don't hear on or my time is expired, so I would simply include my argument. Thank you. That's for other questions. Mr. Landa, thank you, Your Honor. I can make three quick points on the bottle if I might. First, the Council's fundamental submission to this Court is that the scheme, post-1989, is materially indistinguishable from the scheme, free-1989. And I would just urge this Court to actually go back and look at five USC 50303 as enacted in 1975. Or five USC 503 or five, excuse me, as enacted in 1975. That was the provision of law that govern GS colas under the regime that was the issue in will. So it is interesting, if you look at the U.S. before, that provision occupies about 10 pages. It is incredibly complex in terms of how colas would ever come to be. The president has to appoint an agent. There is no discretion that he doesn't say the agent shall presumably give a colas. The agent just has to go through a lot of process. The agent has to compare the rates, but it doesn't say and shall grant it. Just if the agent shall prepare a recommendation. That doesn't limit the agent's discretion. The agent shall convene a federal employee's pay council. There are a lot of steps, but at the end of the day there is no sub, there is no there there in terms of what substanceively has to happen. Then, if not only the agent's reason will, there was a specific number at the time of the blocking of legislation. Oh sure, you are honoured because it happened in that year that that process wound up with a cola for GS employees. But that doesn't mean that just because it wound up happening that way, that you were entitled to a reasoned black vacation that it would have. You could have had a scheme that said you will get a cola if you flip a coin and it comes out a certain way. It might come out that it actually came out heads

. Okay, I have any final thoughts. I don't hear on or my time is expired, so I would simply include my argument. Thank you. That's for other questions. Mr. Landa, thank you, Your Honor. I can make three quick points on the bottle if I might. First, the Council's fundamental submission to this Court is that the scheme, post-1989, is materially indistinguishable from the scheme, free-1989. And I would just urge this Court to actually go back and look at five USC 50303 as enacted in 1975. Or five USC 503 or five, excuse me, as enacted in 1975. That was the provision of law that govern GS colas under the regime that was the issue in will. So it is interesting, if you look at the U.S. before, that provision occupies about 10 pages. It is incredibly complex in terms of how colas would ever come to be. The president has to appoint an agent. There is no discretion that he doesn't say the agent shall presumably give a colas. The agent just has to go through a lot of process. The agent has to compare the rates, but it doesn't say and shall grant it. Just if the agent shall prepare a recommendation. That doesn't limit the agent's discretion. The agent shall convene a federal employee's pay council. There are a lot of steps, but at the end of the day there is no sub, there is no there there in terms of what substanceively has to happen. Then, if not only the agent's reason will, there was a specific number at the time of the blocking of legislation. Oh sure, you are honoured because it happened in that year that that process wound up with a cola for GS employees. But that doesn't mean that just because it wound up happening that way, that you were entitled to a reasoned black vacation that it would have. You could have had a scheme that said you will get a cola if you flip a coin and it comes out a certain way. It might come out that it actually came out heads. But that doesn't mean that you would have a definite promise of a cola under those circumstances. So even though this real goldberg process did yield a result, there is a more of the block. Yes, you are honoured, exactly. But again, GS employees got those colas there. But the point is that whole scheme was so precise and indefinite where now the regime is precise in terms of, we will just finish the regime, you had the agent, then you had a commission, then you had the president. Interestingly, this was a 1975 statute and it kind of shows the post-watergate world they were living in. Of all the pieces of this process of force that the agent, the commission, the president and congress, only the president's discretion was substantively caverned through that 1975 legislation. The president could only change the recommendations if there were national emergency or serious economic conditions in fact in the general welfare. Everybody else had unbridled discretion, including congressman back to Judge Raina's question, which could exercise a one-house legislative veto under this. So, under that circumstance, there was no basis for giving rise to any reason less than patience. And again, I urge you just to go through the statute, it's such a complicated, rude, old-burve mechanism, again with no presumptions, no guidelines. And then going back to the point that Judge Raina was making before. The 1989 Act was a repudiation of this regime. There were extensive studies on it, the system is broken, it is not working. We can't have this system where everybody has to go back to congress here every year. Let's just put these restrictions in place, make these coal automatic, and everybody goes on their way. And that's the promise that was broken after 1989. And that's the promise that we're here to restore. So, it's a fundamentally different regime. And again, the 1989 Act, I think there was a question raised about the Bainter case. If you interpret the 1989 Act to be kind of discretionary and open-ended as opposing counsel suggests, then Bainter makes no sense. And you would have different rules regarding what the system was for members of Congress versus judges. And again, the 1989 Act established a precise amount. It says, ECI minus 0.5%, there was no question about this. Whereas under the old regime, judges would get whatever pay increases the GF employees might have happened to get. And to be sure, by the end of the process, it sometimes produced a precise amount. But that doesn't mean that ex ante judges could form any reasonable expectations that that's where the process would wind up, especially when you had a legislative veto

. But that doesn't mean that you would have a definite promise of a cola under those circumstances. So even though this real goldberg process did yield a result, there is a more of the block. Yes, you are honoured, exactly. But again, GS employees got those colas there. But the point is that whole scheme was so precise and indefinite where now the regime is precise in terms of, we will just finish the regime, you had the agent, then you had a commission, then you had the president. Interestingly, this was a 1975 statute and it kind of shows the post-watergate world they were living in. Of all the pieces of this process of force that the agent, the commission, the president and congress, only the president's discretion was substantively caverned through that 1975 legislation. The president could only change the recommendations if there were national emergency or serious economic conditions in fact in the general welfare. Everybody else had unbridled discretion, including congressman back to Judge Raina's question, which could exercise a one-house legislative veto under this. So, under that circumstance, there was no basis for giving rise to any reason less than patience. And again, I urge you just to go through the statute, it's such a complicated, rude, old-burve mechanism, again with no presumptions, no guidelines. And then going back to the point that Judge Raina was making before. The 1989 Act was a repudiation of this regime. There were extensive studies on it, the system is broken, it is not working. We can't have this system where everybody has to go back to congress here every year. Let's just put these restrictions in place, make these coal automatic, and everybody goes on their way. And that's the promise that was broken after 1989. And that's the promise that we're here to restore. So, it's a fundamentally different regime. And again, the 1989 Act, I think there was a question raised about the Bainter case. If you interpret the 1989 Act to be kind of discretionary and open-ended as opposing counsel suggests, then Bainter makes no sense. And you would have different rules regarding what the system was for members of Congress versus judges. And again, the 1989 Act established a precise amount. It says, ECI minus 0.5%, there was no question about this. Whereas under the old regime, judges would get whatever pay increases the GF employees might have happened to get. And to be sure, by the end of the process, it sometimes produced a precise amount. But that doesn't mean that ex ante judges could form any reasonable expectations that that's where the process would wind up, especially when you had a legislative veto. The second point I wanted to, oops, I'm almost out of time, just on retirement pay, I think the discussion with Judge O'Malley was just dead on in terms of their theory will put retirement play on the chopping block. They have no way of squaring their theory that the amounts have to be due and payable with a theory that would say that retirement pay is constitutionally protected. They're both coal of retirement pay are a form of compensation for current services, but they're not currently due and payable yet. And that's just the way all benefits are. And they're all within the scope of the compensation clause. I see, Mike, my time is up. You had a third time. I did it, but you would have done some right thing. If you would indulge me to make it very quickly, I just wanted to deal with the 2001 statute. And I thought the answers were a little bit confusing on the other side. I thought they were proceeding, and I think they did concede that the 2001 statute, what it says, look at it, they could have reenacted the whole 1981 statute in 2001. But they didn't do that. All they said, this is the 2001 statute in its entirety. This section, and they're amending the 2001 statute, is that this section telephied to fiscal year 1981. So it's a reference to 1981. They knew what they were doing. And each fiscal year thereafter. They didn't say, hereafter, as in 2001, they said, we're amending the 1981 statute, which always had the reference to hereafter, 89 is obviously after 2001. And as this, as the panel concluded in Williams, and we agree with the Williams panel on this point, that 81 is after 2009. So there was no, since there was no blocking legislation, there was no basis for Congress to withhold the Coloss in 2007 and 2010. And therefore, at a very minimum, we're entitled to those Colosses as a statutory matter. Thank you, Donald. Thank you. This is the land down there. It includes our proceed. All right.

Today's appeal presents somewhat unusual circumstance. Any decision by this court may directly affect every member of not only the federal circuit, but of the entire federal judiciary. Some of us, this is more than unusual. It's a little uncomfortable. Yet the Supreme Court has stated that under the rule of necessity, we have a duty to decide cases involving judicial compensation in spite of any potential personal interest. The rule of necessity states, quote, although a judge had better not, if it can be avoided, take part in a 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. These appellants have brought a cognizable claim and are entitled to their day in court, as noted by perhaps the greatest American judge, Chief Justice John Marshall in 1821, that judiciary, unlike the legislature, does not have the luxury of inaction when faced with difficult decisions. Whatever difficulties a case may bring, quote, we have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. Close quote. It is under this mandate that we sit and hear this case today. Mr. Lent, we may proceed. Thank you, Chief Judge Raider, and may it please the court. I'm Chris Landau, and I'm here today on behalf of the appellants. I'd like to reserve 10 minutes for a rebuttal. This case turns on a simple principle. While Congress need not keep all of its promises, it needs to keep its promises of compensation to Article III judges. The compensation clause of Article III provides that a judge's compensation shall not be diminished during his continuous in office. That means, as Hamilton said, that Congress can't change a judge's condition for the worst. When Congress makes a definite and precise promise of future compensation to federal judges, it can't thereafter diminish that compensation. 11 years ago, however, a divided panel of this court held in Williams versus United States that the compensation protected by Article III is strictly limited to amounts due and payable to a judge, and doesn't extend under any circumstances to future judicial pay promised by law, no matter how precise and definite the promise. Is your test that you're proposing one that turns on the definiteness of the promise or the definiteness of the expectations created by the promise? I think Judge O'Malley, those two are very related. You can't have firm expectations if the promise isn't firm. So you need a firm and definite promise to give rise to reasonable expectations that the promise will be fulfilled. And that's the real critical point that, with all respect, we think that the Williams panel missed, that they believe that panel, the majority there, that the result in this case, or the result in the Williams case, which involved the same statutory regime as this case, was dictated by the result of in Will, the Supreme Court's prior decision. The fundamental difference between the will case and this case on the one hand and this case and Williams on the other hand, is that there was no firm and definite promise in Will that judges would get any kind of future compensation, and therefore no reasonable expectations. Whereas in this case, we have a different statutory regime. In fact, a statutory regime that was a repudiation of the statutory regime that was enacted and that was an issue in Will. But the problem, and that seems to you, is your trying to distinguish Will on its facts. And the Supreme Court has told us on many occasions that a subordinate federal court is bound by the Supreme Court's reasoning and holding, and that it's not up to us to distinguish a way their cases based on factual differences. How do you deal with that? Your Honor, it is certainly true that the lower courts cannot overrule the Supreme Court's cases. But that doesn't mean that every single, that you have to overread their cases. And I guess the roadmap, the key point here is that in, when the Williams case went up to the Supreme Court, there was a dissent from denial of served by Justice Breyer, to Justice Scalia and Kennedy. And they didn't say, you need to, we need to overrule Will. They said, Will can be distinguished. Well, that they can do is the Supreme Court, but what case suggests that we as a subordinate federal court can deport from the reasoning of the Supreme Court and essentially confine a case to its facts? Well, Your Honor, again, I think the cases that we say in our briefs, like Illinois versus Lister and writer versus Sonnetone, stand for the proposition that I think you all as judges realize you have to do every day. Which is, even though you can't overrule the Supreme Court's cases, you have to, as a judge, exercise your judgment to try to figure out how broad or how narrow the holding is. And you, Supreme Court does not have a holding that is broader than the situation before. As Justice Breyer put it, I'm sorry? It doesn't. I mean, I've read the Supreme Court cases and there are numerous cases, first in being an example where the Supreme Court has chided a couple of appeals for departing from the reasoning of the case and looking only to the facts and finding a factual difference and telling us that that's not an appropriate way to proceed. Well, Your Honor, again, but I think it's important when you're looking at the reasoning to look at the context in which the reasoning was set forward and at the questions that were actually presented to the court in that case. And again, this is somewhat of a metaphysical question, I guess, and I think we have guidance from three members of Supreme Court at least and I realize that that's not a majority. But you also have a very significant hint that seems to me and this is from the majority of the Supreme Court is in the fact that the court remanded this very case. I mean, this case, as you know, was in the Supreme Court. Previously, the court remanded the case for consideration of the preclusion issue. Well, that would have been a very strange thing if this court's hands were absolutely bound and we were bound to lose as a matter of law and will. The court would have essentially been asked to provide you opinion and the remand order had a particular sense that went out to its way to say that further proceedings are for the court of appeals to decide in the first instance. So in a sense, the Supreme Court would invite an indicator of self. That just indicates the appropriateness of going beyond the preclusion issue. Well, that's correct, Your Honor, but it would be a tad strange to say the least if the result were pre-ordained. I mean, I think the Supreme Court. In other words, they would have denied correct correct or they would have just strange if will absolutely control this and you all had no discretion. You were absolutely bound by will. They would have essentially been remanding for advisory opinion and sending you all in a fool's era. Is there anything about the reasoning and will itself that reports your conclusion that will should be read more narrowly than the William Court read it? Your Honor, again, I think what I could say is that you have to understand the reasoning and will in light of the context and will. The context of a precise and definite, of a very imprecise regime that was overturned by the subsequent enactment. So there is certainly some land bridging will that is favorable to the government's position here. But what I would say is, if you were to say, look, I'm sorry, we're lower foot, we're absolutely bound by will. So you would be reading will in such a way that for United consequences, it would be very strange to think that the Supreme Court would have done unanimously in that opinion by Chief Justice Berger, for instance with respect to retirement pay. As we've argued here, one of the key points is that if you take the government's theory, you take that one sentence on page 229 of will that compensation bets only when it becomes due and payable. Certainly, judicial retirement pay is not due and payable. Currently, it's not due and payable until a judge meets the besting conditions set forth in 2018 to its E371, which are the legal. Read out of the language in will where the court said that what it was doing was allowing Congress to change the formula for a calculation of a future payment to judges. I'm sorry? What do you read out of the fact that the will for it said what it was doing was allowing Congress to change the formula? It was characterized as an issue of a formula. I think that's because, maybe this goes to your earlier question, Your Honours, in will, there was no underlying promise. It was really a question about a formula. This is a question about a promise. In other words, this is much more than a formula. This is something when you put together the 1989 Act, Section 28, E461, which is about judicial pay, with 5 USC 53 of free, which is about the general schedule pay. Those together created a very precise and definite promise, which was precise as to amount of A and to the fact that you will get it automatically. That was the whole point of the 1989 Act. Let me see if I understand your position with respect to the point you're making now, the link between the GSP and the judges pay. As I understand it, the judges pay is in fact linked to the GSP under the statute of the 89 statute. And I take it your position is that if Congress should decide to reduce the formula for the GSP employees and the judges were reduced to the same extent with respect to the cost of lending increases, there would be no compensation clause violations, etc. No, you're wrong. So you think that the tie is there only under the current formula. Yes, you're wrong. So if, for example, the Post-Congressor decide that the ECI was really overcompensating GSP employees and judges for that matter, and decide to go say to the CPI and have a statute that says we're changing it to the CPI, that the judges would assume the CPI produced lower results. The judges would be entitled to have their co-less calculated under the ECI. Yes, for all time. No, well, they could change it and then new judges wouldn't necessarily have that expectation. But for all time, for all judges in the party. So they'll have repeal the 1989 Act, even if they repeal the whole thing and went to a different system for GSP compensation. That would still be a violation of the compensation. Yes, Your Honor, because this was the promise that was set for 1989. It's still the promise to this day that the 1989 Act remains on the clock. And that was the deal that was done in 1989. And this wasn't some kind of accident or happenstance the way those two clauses worked together. The 1989 statute for regime was the result of years and years of study and dissatisfaction with the very regime that was an issue in will about federal employees, both at the general schedule level, and also see your executive service and judges having to go back to Congress a year after a year. And they said, you know something? This isn't working. Okay, they used to have this whole Rue Goldberg regime where you've had an agent who had to then have a reviewing commission go to the president and have a one house veto. So that's not working. What we're going to do is we're going to put severe restrictions on the ability of judges to earn outside income. And then this is all part of the deal that was reflected in the 1989 statute. But we're going to give judges self-executing and automatic co-less. That is entirely different than the regime that was at issue at will. We're not saying that individuals have had a contract with Congress. No, I think that's right. But I think the question is, the deal is historically accurate. There's no contract. Well, I think that's right. But I think in a sense, the compensation clause is a contract between the judiciary and Congress. It says Congress and what in wins are you, for wins are kind of cases you might actually need a contract. But I think what we're talking about here is what's set forth in the compensation clause itself by the founders. Who again, I just think we have to look back to what is the illuminating principle here. It's camel-thin principle that Congress shouldn't be able to change the judges' condition for the worst. Well, that, of course, raises the question, what is the judges' condition? Is it just what the judges have here to fore receive what has become doing available? Or can Congress, does Congress have the power to say, look, we don't have to do an indexing scheme for judges. But we're going to do an indexing scheme for judges. And we're going to give it to judges in precise indefinite terms. Could Congress repeal the 89 act? It couldn't repeal the 89 act in so far as it gave pay increases to judges, no, because that was the deal. Could it repeal it in the future? That is, could it say, for example, judges can go out and earn outside income. We're repealing the entire act. Well, you know, that raises an interesting question, whether or not Congress could come up with an alternative regime that in a sense didn't wind up lowering the word. And that raises the question, if it's a real compensation to judges. I think that's a very interesting question, but I think you would certainly have to look for what is the compensating mechanism. For instance, to go back to the earlier hypothetical. Wasn't that question answered in Hatter? Well, I think it Hatter, of course, certainly recommended, benefits of all kinds can be a form of the compensation. The compensation is not strictly limited to pay. And that's why I think, frankly, one of the things that has changed since Williams was that Hatter indicates that retirement pay is part of the compensation that is due to the judges. That doesn't make sense. That cannot be true. If will is read as the government is reading it here, I think only amounts that are due and payable now are part of the compensation. You're not suggesting that the outside compensation is protected by the compensation. It might be your honor. If for instance, one could imagine the regime where Congress says, you know, we're not going to give judges any money. But the way we're going to let article three judges earn a living is that they're going to be allowed to practice law. If that were the regime, then that couldn't be changed. They couldn't say, well, you can't practice law now. And we're still not going to give you any money. Again, that raises some interesting issues. And there are always our issues about what kinds of benefits are considered to be part of compensation. The Hatter, there was an exemption from taxes. But as Justice Scalia noted there, and Majority also noted, you have to look at the overall package. Once you start to look at the overall package, I think it's clear that you're no longer looking just at things that were due and payable because benefits. Certainly, the promise of a co-luck is a benefit that you get. It's true and it is a judge in any job. But that same is true for retirement pay. You say, look, come work for us. The benefits are, your salary goes up every year to account for inflation. Look at this generous retirement package. Do you think that Congress could increase the number of years required for eligibility for retirement pay? For people that leave the court, another of that seniors pay, it's retired. I think that the disability, which I think is now five years, supposedly it says five years isn't long enough for eligibility for disability. Let's make it seven. I think that raises very serious questions under the compensation clause. Again, once you accept that, as I think the Supreme Court has in Hatter at least, that benefits like that can be part of the package. But it would be okay, for example, to increase the required workload, let's say, senior judges. Yes, I don't think that that's a deny. You know, it's an effect, an increase, a lowering of the per hour. You know, it may be hard to draw the line at points. And again, if you say, look, the rule is now, what, 65, it's the rule of 80 now, 65 plus 15. They change it to the rule of 90. I think that would raise very serious questions under the compensation clause. Again, what's the point of the clause? We're protecting promises to judges. Those are promises that allow the judges going back to what Chief Judge Raider said at the beginning of Hatter rule necessity. Judges have to make pub decisions. Judges shouldn't have the fear that when they make those kind of pub decisions, the Congress may say, you know something? I think that that's wrong. I don't like that Obamacare ruling. You know something? I'm going to slash judicial pay by two percent. Well, that's no different than saying, you know, judges were scheduled to get this co-la for next year. Judges were going to get it. I don't like that ruling. I'm going to take away that co-la. The very vice that the clause was enacted to prevent, and with all respect, we think that the Williams Court, again, read more into the will decision that needed to be read. And so we respectfully ask the Court to look not so much just at the do-intailable standard, which again would leave retirement pay on the shopping block. But to look, what is the reasonable expectation that is faced on the level of deafness of the promise? The Williams dissent, we put a lot of emphasis on this notion that 89 acts was a bargain, or essentially with a legislative bargain, where the other income was wiped out. The outside income was wiped out, or the right to earn out, the outside income was wiped out. And in return for the promise of a future co-la. But is that bargaining really relevant? No, I certainly think that that's relevant in the sense that it underscores what a reasonable person would believe the promise to be. In other words, I'm not sure you always would need kind of this quid trope, but I think it underscores the whole nature of the 1989 statutory regime as a fundamental departure from the previous regime. And so I do think that even though it may not be necessary to have that bitter plus of sleep, I think it underscores that judges were reasonably entitled to expect. Either when they're sitting on the bench looking at, should I stay on the job, or should I accept a general counsel offer, or if you're sitting at the kitchen table and you're pondering a judicial appointment, you and your family should say, look, I should be able to figure out, I look at what Congress has said, they said, you know, get a co-la. And unless the president declares these extraordinary circumstances, that's the deal that is being offered to the judges. And again, going back to the basic point of Hamilton, that Congress should not be able to change that for the worse. What's the prime court case that says that congressional promises are reasonable expectations of the standard as opposed to the vestigal of will? I think as Justice Breyer pointed out in his statement, or his dissent from the denial of cert in Williams, the whole point of the compensation clause is to protect the judges' re-resilification. I mean, we're facing the level of no less. Well, we're facing with a word compensation. So I will give you that the constitution isn't self-defining in terms of what the word compensation means. And the government's interpretation here is that it's only amounts that are actually doing payable. Our position is that to give effect to the intent of the framers and what Hamilton was trying to was talking about in federal 79, you have to recognize that what you're doing here is you're protecting the judges' reasonable expectations. So they're not chilled in terms of having something that they are entitled to expect taken away from them. Obviously, a future salary increase that is not yet enacted into law isn't a reasonable basis for thinking you're going to get that. So the idea at least is that a judge can't be reasonably chilled from exercising his or her judgment in a case based merely on the possibility of some future pay increase not an act. What happens from your reading of the federalist papers not from a Supreme Court case? Well, it comes from the constitution which is brought to life by the federalist papers. And again, you don't have to take my word for it with all respect, Your Honor. Justice Breyer, joined by Justice Scalia and Kennedy, has set forth this very point. Again, I understand that's not a majority of the court. But they have actually set forth the path for distinguishing will. And again, they didn't say we as a Supreme Court need to overrule will. They said will can be reasonably distinguished on these grounds. And I think that gives the discourse the path to do just that. And so you keep using the terms from comments and regional expectations. But all promises can be broken. And isn't the next station doesn't become reasonable when they're so sort of vestment of investment of an interest that has come into play. Well, Your Honor, with respect to just the premise of your questions, the compensation clause stands for the principle that all promises can't be broken. Congress has no constitutional authority to break the promise of judicial pay. So if Congress in fact had said, you will get, if Congress has paid you, I don't think the government even disputes that the paycheck that you're currently getting is quarter of a fuel schedule. I think it's $184,700 a year. That they cannot break their promise to pay you that by paying you $150,000 next year. So the question then is, I agree with you, there is a question of vesting. But the question is, and we don't disagree with Will, that it certainly does vest once it's become due in payable. The question is, is that the only circumstance when it vestes? And this was a question that Will had no occasion to address, because it didn't have before a precise and definite regime. If Congress says, judges, instead of giving you $20,000 next year, we're going to give you $10,000 this year and $10,000 next year. Is that any different than giving you $20,000 all in one suit? And I would respectfully submit that from Hamilton's perspective, from the whole perspective of what on earth does clause is trying to protect. There's no constitutional difference. So that just right now to ask your question, the vesting rule you should look at then, doing payable is not in the Constitution either. That's the government's vesting rule. What we're asking you to do is adopt the vesting rule that we would respectfully submit is more consistent with the intent of the framers as evidence in the federal. We agree with you. We have to do the reman on damages. That's correct, you're on. And we've set forth in our brief that we think that this court's opinion in Hatter already sets forth how the damages calculation should be performed. I see a meeting into my rebuttal time, so I would respect that. I do have a question about that. Sure. The assuming, if it were true that we felt that Williams was right and that will control. But we agree with you that the section 140 is either not operative or unconstitutional. Then what impact is that on the 2007 and 2010 with holding of coales given that there was no blocking steps? Then it seems to me that at least you should reman for a for us to proceed on a claim for those two years for the coales for those two years because that is really independent of the will slash Williams points. And just to clarify, we have there would be a statutory. We have both a statutory and a constitutional challenge to the 2001 statute. And just to leave those are discriminatory. Well, we respect your honor. With respect to the stat, the constitutional argument, yes, that's the basis of it. With respect to the statutory argument, just to make this point clear. And this was pushed out more in the Amicus Brief of the Federal Judges Association in our brief. The 2001 statute just says the 1981 statute comes back to life. It didn't actually reenact the 1981 statute. It just amended the 1981 statute and actually refers back to 1981. So what that statute did is that except that here and after an act, you need a specific authorization by Congress. It's quite clear. I think both this court and Williams recognize this and just the clarity of opinion in Williams in the Supreme Court that the 1989 statute is a statute here and after an act with respect to 1981. And therefore in the coales in the 90s, Congress affirmatively blocked it. But that's not true in 2007 and 2010. So even under the language of the 2001 statute, even if it is constitutional, it doesn't purport to block anything. So we should have gotten the coales in 2007 and 2010. And then there's also an argument that even if you disagree with that statutory interpretation, that the 2001 statute is on constitutional. The difference is in the reason that we respectfully submit, you should reach the constitutional question that there's also claims for damages in the earlier years of the six year statute of limitations period, which in this case was back 2003, arising from each paycheck we were getting in those periods was artificially lowered as a result of the denial of coales in the 1990s. And we obviously are not going back all the way to the 1990s. We can't do that with respect to the sexual limitations. But this goes back to the point I think that Chuck Lury was asking me about in terms of the damages calculation in Hatter, the court made it clear that each denial, each paycheck is an individual violation of the compensation clause. So we should be able to go back for periods in 2003, 456. And that's that is not answered just by with respect to the 2001 statute. The specific claim that you alluded to that's discussed in the amicus brief in the federal judges' association. Was that claim raised by you in the talk word? You're on our complaints talks about the withholding of the salary in those years. Certainly I think our complaint can be fairly bred to encompass that claim. And at the very least we should have given a chance to amend our complaint to make clear that we're doing a statute of complaints. The claim, except to claim under rule A, all you need is a plain and straightforward basis of the facts underlying the claims you want to go into detail on your legal theory. If I could reserve the balance of my time. Thank you Mr. Landau. Mr. Simpkin. May I please the court? The court of federal claims judgment of dismissals should be affirmed. Your honours, we would submit that the arguments presented by all of the parties here, including Amicie, are many and buried. We agree with Mr. Landau that this case ultimately reduces to a relatively simple and straightforward issue. That is whether this court in Williams correctly concluded that the vesting and will, the vesting rules set forth by the court, will control this case. If it does, then the judgment should be affirmed. And on that issue, the question simply reduces to whether the plaintiffs have persuasively distinguished this case from will and in particular the statutory pay schemes that were considered by the court in Williams and the Supreme Court in Williams. We would submit your honours that there is no material distinction between the two pay schemes. Of course, the plaintiffs have characterized the scheme and will as being entirely discretionary, whereas the scheme created by or amended by the 1989 act is in the plaintiffs' characterization, entirely non-discretionary, self-executing, precise and definite. We would submit, again, your honours, that those characterizations in their simple characterizations of counsel don't hold merit when the specifics of the two schemes are compared. Under both schemes, future adjustments in judicial salaries were expressed in mandatory automatic turns. Both schemes required, they used the word, shall be adjusted to the race of pay. Moreover, under both schemes, those adjustments were to be made at a date certain in the future. Also, under both systems, the increases to judicial play were keyed or tied to increases in the general schedule settings. It wasn't a qualitative component to the scheme in will, though, that there was no guarantee that there would even be a recommendation for increases, whereas the scheme under the 1989 act is automatic. No, your honours, respectfully disagree. Under the old scheme, the president's page was required to prepare and submit a report. To make a recommendation, but it didn't say that it had to recommend any increase. Well, he was, if in his study and compilation of the surveys of the Bureau Labor Statistics, if it was concluded that there was no basis for an increase in a particular year, I suppose that could be true, but it could also be true under the modern system where the ECI and any year conceivably could reflect no change. So, the essential point is that under both systems, some adjustment had to be made unless the president stepped in under his special authority to reduce or deny an increase altogether based upon national emergency or economic conditions affecting the general welfare. And again, that's the third point is that exception of the president's alternative paid plan was exists under both schemes. So, what we have here is a scheme that is our substantially identical in terms of the mandatory nature of the adjustments. The fact that both schemes require the adjustments to be effective as of a date certain in the future, the similar trait that both judicial pay raises and GS pay raises are tied together and finally the notion that the president could step in for the stated grounds. It seems to me that under the will system that Congress retained a discretion to step in along with the president and to change to make adjustments. But that wasn't the case under the 89 system. It seems to me that Congress wrote itself out of that scheme. Is that correct? Not entirely, you're under the will scheme. As a general member, Congress always has a lurking power to step in and make changes under the spring force decision rule will. But under the specific provisions of the will scheme, Congress really didn't play a role unless and until the president stepped in and decided to present an alternative paid plan. And then Congress had 30 days to either house of Congress could essentially veto that plan. And in the case of that occurring, then the president's pay agent proposal would govern. So, Congress didn't play an active role under the old system. But those functions that you just described were not included under the 89 system. No, there's not that sort of detailed system back and forth. No. But again, Congress could always conceivably under the rule of will step in and change the president's alternative pay. But in Congress didn't include itself under the 89 system. Should we view that system as more automatic than say the will system? No, Your Honor. The spring court and will regarded the old system as being automatic. The court's decision is replete with references to the automatic nature of the pay increases they're under. And again, replete with references to legislative history behind the blocking statute that the court was considering, which were done to prevent automatic pay increases from going into effect. So automatic means automatic. It means that unless some party intervenes, they are required to go into effect by a date certain. Mr. Sunkin, in 1989, more of the ethics reform act went into effect. Could the judges have stepped in, but then sitting judges and sought a prohibatory injunction against enforcement of the ban against outside income brews in? An injunction against? Could they take an action to keep it from going into effect? Well, I'm not aware of any ground. There wouldn't be a ground under the compensation clause, for example. I'm asking, could they have legitimately sought a prohibatory injunction? I'm not aware of a ground under the rules. Under the rules. Could they have sought a prohibatory injunction at that point before it went into effect? Of course, they could seek an injunction, but I'm not aware of any basis upon which they could prevail upon. The distinction I'm drawing is that after it went into effect, it's much harder. They have to seek a mandatory injunction. Presumably that's the case. You're all right. Thanks. With respect to the issue of retirement pay, which you allude to, I think, at pages 33 and 34, if you're brief, and the appellants come back and say that that's your discussion of that is deferred compensation. It gets you into hot water with respect to coales. Why is retirement pay deferred compensation, or is that your position? Well, that was the position articulated by the solicitor general in the will opposition. Right. And it's the position sort of articulated in your breathing, but I'm not sure it was firmly adhered to. Is that your position? Well, that was the position of the solicitor general. We certainly have no basis to depart from it here on the issue of what. So you're saying that then either a congressional change to the amount of retirement pay retirement in this sense being after someone leaves the judiciary, right? That either a change in the amount of the pay, or even a change in the number of years required for eligibility for ultimate retirement pay, would be a compensation clause problem? I don't think I can respond just so generally to that question, because it would be a misdivisive. I don't know the specifics if they would help, but I mean, suppose that they say instead of getting for everybody else gets, because you're going outside and you have an opportunity for other income, if you leave before the age of 70, you'll get half for everything else. That would be a compensation problem with respect to everyone in the judiciary, is that your position? Well, of course we haven't taken a position, but as Mr. Rufke, that's what you said in your brief, but maybe you didn't. Well, those portions of our brief were simply responding to the argument that this course decision and will somehow threatens or opposes a risk to a diminishment of retirement pay. Well, it does face on your reading of what investing means, couldn't it? Because I mean, you could have a judge that went on the bench in their 30s, who is on the bench for 30 years, but leave at age 64 and a half and get zero, because it's not doing payable until the rule of 80 is satisfied. So under your reading of will, by definition, it would put a risk that retirement pay for every single currently sitting judge, wouldn't it? Not necessarily, I'm going to know. As Mr. Landau noted, in Hatter, the court indicated that retirement pension benefits are part of the compensation. So just on that point alone, it presents a different issue. And of course, the court and Hatter made that point by also citing to him harmonizing its decision and will. So what will and Hatter mean with respect to compensation and how it's protected, I suppose, is for a future case, but our reading, and essentially, it's not necessarily our reading, but the discourse reading of will in Williams, doesn't pose a threat to retired pay, because the court was looking to number one different statutory provisions that set out salary increases in our retired pay. And more to give you to speak when you said what will and Hatter mean to compensation. You meant to say retirement pay now. But more importantly, in Williams and Will, the courts were guided by the history behind the compensation clause and how the specific issue of pay increases was raised and addressed by the framers. We don't have any similar evidence here, respecting pensions, for example. You're saying that some compensation can be taken away, but other compensation can't be? No, no, you're on. I'm just saying that it's a different issue. Either way, if you're saying do and payable is the test, it's got to be do and payable, right? Well, do and payable based upon current service, and we've drawn, that reiterated that distinction. Again, are you standing behind your arguments that the retirement pay is deferred compensation when it's not do and payable until the rule of 80 is satisfied? Well, we're noting that it can be likened to deferred compensation. I mean, it certainly was, and you're brief, I'm saying, are you standing behind that as a valid distinction? We certainly are not departing from that, no, you're on. But again, getting back to what we believe is the despositive issue and that is whether the two schemes are distinguishable. Now, as we understand it, the plaintiff simply haven't pointed to a particular provision made by the 89 act that makes the 89 act scheme any more precise or definite than the old scheme. They seem to rely on their reply, but heavily on the fact that the provision respecting judicial pay increases, Section 461, states that rates of pay shall be adjusted. But as we pointed out in our brief, and as they have not responded to, that language shall be adjusted, originated not from the 1989 act, but from the original 1979-1975 Adjustment Act. Again, the two systems were materially similar in all respects for purposes of this course consideration. And so, in year three in Hatter, is it not the case that there was a specific number of standards before the blocking stance of August 31, 1995? I'm sorry, by an alternative plan submitted by the President. The number in year three in Will have been established that was a precise number at the time of the blocking stance. Yes, Your Honor. In one of the years in Will, the President did come in with an alternative plan. I believe it was your three. Yes, it was a precise number. Yes. Which again, the court, there's no indication in the Supreme Court's analysis in Will that a pay increase or a proposed increase would be irrevocable if it was non-disgressionary in some respect. It was simply a matter of timing under the Will's court decision. And so, there is no material distinction between on the facts, between this case and Will. And as your Honor, just like noted, really there's no basis here to the terms of this thing, which are the two cases on the facts. In many respects, this case is very similar to the Hatter case in which the court was presented with existing Supreme Court precedent, Evans-V-Gurl. Which held with respect to income tax assessment that such diminishing were unconstitutional. That was a criticized decision. It was called into question in some later respects by subsequent decisions. But this court was presented with it and had to apply it on a field of the Supreme Court, the Supreme Court commended this court for following existing precedent, noting of course it was only the court that could be overruled. In other words, cases, but then proceeded to hold that Evans was no longer a good law and overruled it. That's essentially the position we would submit plan of seren. They're faced with a controlling Supreme Court precedent. And if it is to be distinguished or a different role is to be applied or if it's reversed altogether, that's really something for the Supreme Court. You keep talking about distinguishing these cases on their facts. The Supreme Court, the Congress, wrote the 89 act with the will case, in mind. And it was tried to get away from the scheme that gave rise to will and the politics that went into living with it for 10 years after will. Why is that? That's interpreting a totally different statutory scheme. It's not a distinguishing, distinguishing case on its facts. Well, two different schemes starting all over again. The time there's much more thought that there would be one something different than the one that will settle with. Well, there's the Congress did three things. It was a respective compensation in the 89 act. Of course, it gave one time 25% pay increase. It restored to previously denied COLA's in fiscal years 89 and 90. And then it changed the method of calculating COLA's from the old report system to the ECI system. With respect to, of course, the first two, there was no notion that it was attempting to get around or deal with will at all. And even with respect to the change in to the ECI method, there's no indication that that was a response to the course decision in will. Well, it's unclear whether the plaintiffs are relying on some sort of quid pro quo or contract that Mr. Lowness seemed to say they weren't at least directly relying on that. But I'm referring to what Congress thought. They thought they were getting out of this business because they've been dealing with it year after year after year. It was just a statement that was a wish for the judges and everybody else who kind of go ahead and hand every year. They thought they were citing something up. We were all there, most of us were there at the time. So we know what they were trying to do. Like that, friends, you're telling us they failed. Well, I wouldn't say they failed, but I would refer the court back to the court. Change their minds. So the position. And they were in time too. It's not really a change of position. As the majority panel in Williams described, Congress wanted to create an automatic system of pay raises in 1975. There's no doubt about that. Just as it desired to continue to do that in 1989, the fact of the matter is it didn't change it enough to take it out from the rule of will in 1989. Simply changing the method of calculating the increase doesn't change the essential aspects of the scheme itself that the court and will found controlling. Council, we received a lot of information, especially from the Amicus brief said, any diminuation in the compensation of the federal judges puts at risk the impartiality and the independence of the federal judiciary and of course that invokes the doctrine of separation of powers. What should we respond to those comments? Well, of course, in general, that's true. That was the purpose that the compensation clause was created to provide a measure of security against threats to judicial independence. But as the court and will described in death and this court in Williams acknowledged, the framers grappled with the question of judicial pay increases. Of course, compensation was protected against diminution, but as far as increases to that compensation, that presented a problem to the framers. Ultimately, the compromise was to accept some degree of risk to the judicial independence by the Congress in exchange for the benefits afforded by having judicial salaries increased when times warranted. So the clause itself embodies some some acknowledge risk to independence. There was criticism criticisms of the end of the debates by the framers that allowing Congress to pass upon increases would cause judges to correct favor of this Congress. So while those pay increases were being considered, nevertheless, that was ultimately the compromise that was reached and that was the compromise that the court recognized and will and indeed drove it to the court. Mr. Symkin, on page 21 of your response, I agree. You say that the compensation clause doesn't prohibit Congress from changing the rate of a future increase or canceling it. Before judges have performed services which for which compensation is due unpayable. And the problem I have with it is who gets into the final services are. Isn't it at least a view that a service that the judge performs is going on the mention being a judge? Because otherwise, doesn't Congress get to say, well, geez, we've looked at what you did last year and you know those were very good opinions so they don't constitute services. And then you're running up against a load of law. Well, you're on and I think the portion of our break where we referenced provision of services, we were simply tying back through might not have been so precise, we were tying back to the rule of your summary of your argument as well. What it simply refers back to is the court's screen force treatment of that issue and will that services rendered beginning on the first. The 1201 AM. The 1201 January 1st services begin even if the judges in that work. Yes. Certainly not taking a position that a judge has to be up and performing some function. But under that theory though, then, could this Congress decide to drop the salary rate as long as they did it before 1201 on January 1st? No, in other words, your annual salary is 184,000, and could the Congress say, you know what, start in the next January 1st annual salary is 170,000. No, not at all. Why not? Because that's too impayable yet, isn't it? Well, it was part of the compensation doing payable to the judge in that prior year, that base salary of whatever whatever level it was. If Congress in any year says the salaries of the federal judges shall be 180,000 per year, the next year, of course, no one is saying Congress can come back and take that down. And the reason it can't take that down is because that salary level had become the compensation that was due impayable to the judges. It can't go back. And of course, the whole point of will is that for future increases, as opposed to base salary levels for future increases, those have not become part of the compensation due impayable. What about the fact that the Fainter Court essentially says that once the Cola, once the system, the law passed in 89 and the system was put in place that all of those later Cola was completely automatic and they didn't constitute additional rates. They actually just constituted an automatic application of the 89. Do we have a different rule of investing for the 27th amendment than we do for the compensation class? Well, as this court in Williams addressed that issue, yes, there was a different issue. The court was looking to when pay raises took effect for purposes of the 27th amendment and held that that was a different issue from the issue addressed by the Supreme Court in will. So of course, if there is a tension or conflict between those two cases, the court's decision will, of course, will be controlling. Could I ask you about the 2007 and the flash 2010 claim raised in the Amicus brief that was alluded to earlier? That issue entirely turns, I take it, on whether Congress in 2001, when it amended Section 140, was amending it in a way that converted the hereafter enacted into something that had happened each year as opposed to the hereafter enacted referring to any act that occurred after 1981. Is that a fair statement of what you understand the distinction to be? Well, at least from our perspective, that's not really an issue. We would agree from the purpose of the argument that the hereafter point in time is 1981. Well, but if it's 1981, and if we conclude that the 1989 statute was hereafter enacted and I understand you have arguments as to why that's not true, but if we were to accept that, then you need for the re-unit. So the reading of a section of the amendment to Section 140, I take it to mean that hereafter enacted applies each year. In other words, an act has to be passed authorizing the increase each year. So if the answer is, are it 140 will keep it from going into effect? The Amicus brief says no, if the 1989 is hereafter because it was after 1981, and that's the date noted in Section 140 both as originally written and as a amendment. It didn't change the date from 1991. What's your answer to that? Well, again, we would agree for purposes of argument that the reference point is 1981. And therefore, the 1989 act could in theory be a law hereafter enacted, but as we argued in our brief, it simply couldn't be construed in that fashion because tellingly your honor, the 1989 act itself, cites to and references Section 140. And with respect to the restored colas in 1989 and 1990, specifically authorized those, those, but did not do so for any others. So there's no blocking legislation in 2007 and 2010, right? That's correct. So if in fact, we can through Section 140 is not interfering with the Williams holding that the 1989 legislation was here and after an acted legislation. What's the basis for denying the colas in 2007 and 2010? Well, there, I guess there would not be. I suppose there would be an action by Congress. And that would, in theory, trigger the automatic increase. You've just conceded a partial victory for the judges. I'm sorry. You've just conceded a partial victory for the judges. Well, not necessarily, your honor. If Congress through inaction fails to provide a increase required by law, that's not necessarily the same as a direct diminishing. In other words, it's not a law that mandates a reduction in the salary level. But just as a statutory matter, under the Williams interpretation of Section 140, why are the judges not entitled to the 2007 and 2010 colas? Well, the Williams disdigit in the address that 2001 amendment. Well, but you say that that just changed the result with respect to the continued operation of the statute, which was one of the grounds. And what Williams said, we can screw 140 by the part from the question of whether it was continuing legislation to encompass the 1989 legislation. And that was legislation here and after an acted within the meeting of 140, accepting that interpretation in Williams. Is it not the case that the 2007 and 2010 colas were improperly denied since there was no change? Well, the decision in Williams didn't specifically address the question of specific authorization. It held that the two statues were in conflict alone. Let me put it this way. If 140 is here and after an acted legislation, if the 1989 ethics reform act within the meeting of 140 is here and after an acted legislation, then it is the case that the 2007 and 2010 colas were improperly denied, isn't it? Yes, that would be the case. If there was, if there was an automatic right to them and there was no action either by the president or Congress, we would say yes. So you are not arguing then that the 2001 amendment to section 140 placed section 140 as a bar to any automatic increases and the automatic colas for judges in each year thereafter. Well, as I am saying, the language of the statute is admittedly somewhat murky, but looking at the language of the conference committee makes permanent provision that prohibits the use of funds to increase the salary of a federal judge except as maybe specifically on the right back of Congress. You are not arguing that that language to the extent that it reflects the meaning of the statute imposes a bar to the automatic increases, even in the absence of specific barring legislation in a given year. Well, we have argued that section 140 was effective from the date of its enactment to this day. Again, the court and Williams disagreed with that in the interpretation, but in our view, that is the proper interpretation. So in that sense, yes, 140 was effective in each year and would require a certificate of approval. So the effect of that argument is one follow-up question from me. So if we will assume that there is nothing much to indicate this, but if we assume that the 2001 amendment to 140 was effective in response to that portion of the Williams decision that discussed one for it, we are attempting to say, well, no, we are going to make it permanent even though the federal circuit doesn't think it is, then you think 140 would block automatic colas for the public. So even in the absence of specific year-to-year blocking legislation, is that correct? I would say that could be an interpretation because 140 provides notwithstanding any other laws. Is it your position? Yes. No, thank you, Mr. Sinkin. Okay. Your Honor, is it my... I am... Time's expired. Okay, I have any final thoughts. I don't hear on or my time is expired, so I would simply include my argument. Thank you. That's for other questions. Mr. Landa, thank you, Your Honor. I can make three quick points on the bottle if I might. First, the Council's fundamental submission to this Court is that the scheme, post-1989, is materially indistinguishable from the scheme, free-1989. And I would just urge this Court to actually go back and look at five USC 50303 as enacted in 1975. Or five USC 503 or five, excuse me, as enacted in 1975. That was the provision of law that govern GS colas under the regime that was the issue in will. So it is interesting, if you look at the U.S. before, that provision occupies about 10 pages. It is incredibly complex in terms of how colas would ever come to be. The president has to appoint an agent. There is no discretion that he doesn't say the agent shall presumably give a colas. The agent just has to go through a lot of process. The agent has to compare the rates, but it doesn't say and shall grant it. Just if the agent shall prepare a recommendation. That doesn't limit the agent's discretion. The agent shall convene a federal employee's pay council. There are a lot of steps, but at the end of the day there is no sub, there is no there there in terms of what substanceively has to happen. Then, if not only the agent's reason will, there was a specific number at the time of the blocking of legislation. Oh sure, you are honoured because it happened in that year that that process wound up with a cola for GS employees. But that doesn't mean that just because it wound up happening that way, that you were entitled to a reasoned black vacation that it would have. You could have had a scheme that said you will get a cola if you flip a coin and it comes out a certain way. It might come out that it actually came out heads. But that doesn't mean that you would have a definite promise of a cola under those circumstances. So even though this real goldberg process did yield a result, there is a more of the block. Yes, you are honoured, exactly. But again, GS employees got those colas there. But the point is that whole scheme was so precise and indefinite where now the regime is precise in terms of, we will just finish the regime, you had the agent, then you had a commission, then you had the president. Interestingly, this was a 1975 statute and it kind of shows the post-watergate world they were living in. Of all the pieces of this process of force that the agent, the commission, the president and congress, only the president's discretion was substantively caverned through that 1975 legislation. The president could only change the recommendations if there were national emergency or serious economic conditions in fact in the general welfare. Everybody else had unbridled discretion, including congressman back to Judge Raina's question, which could exercise a one-house legislative veto under this. So, under that circumstance, there was no basis for giving rise to any reason less than patience. And again, I urge you just to go through the statute, it's such a complicated, rude, old-burve mechanism, again with no presumptions, no guidelines. And then going back to the point that Judge Raina was making before. The 1989 Act was a repudiation of this regime. There were extensive studies on it, the system is broken, it is not working. We can't have this system where everybody has to go back to congress here every year. Let's just put these restrictions in place, make these coal automatic, and everybody goes on their way. And that's the promise that was broken after 1989. And that's the promise that we're here to restore. So, it's a fundamentally different regime. And again, the 1989 Act, I think there was a question raised about the Bainter case. If you interpret the 1989 Act to be kind of discretionary and open-ended as opposing counsel suggests, then Bainter makes no sense. And you would have different rules regarding what the system was for members of Congress versus judges. And again, the 1989 Act established a precise amount. It says, ECI minus 0.5%, there was no question about this. Whereas under the old regime, judges would get whatever pay increases the GF employees might have happened to get. And to be sure, by the end of the process, it sometimes produced a precise amount. But that doesn't mean that ex ante judges could form any reasonable expectations that that's where the process would wind up, especially when you had a legislative veto. The second point I wanted to, oops, I'm almost out of time, just on retirement pay, I think the discussion with Judge O'Malley was just dead on in terms of their theory will put retirement play on the chopping block. They have no way of squaring their theory that the amounts have to be due and payable with a theory that would say that retirement pay is constitutionally protected. They're both coal of retirement pay are a form of compensation for current services, but they're not currently due and payable yet. And that's just the way all benefits are. And they're all within the scope of the compensation clause. I see, Mike, my time is up. You had a third time. I did it, but you would have done some right thing. If you would indulge me to make it very quickly, I just wanted to deal with the 2001 statute. And I thought the answers were a little bit confusing on the other side. I thought they were proceeding, and I think they did concede that the 2001 statute, what it says, look at it, they could have reenacted the whole 1981 statute in 2001. But they didn't do that. All they said, this is the 2001 statute in its entirety. This section, and they're amending the 2001 statute, is that this section telephied to fiscal year 1981. So it's a reference to 1981. They knew what they were doing. And each fiscal year thereafter. They didn't say, hereafter, as in 2001, they said, we're amending the 1981 statute, which always had the reference to hereafter, 89 is obviously after 2001. And as this, as the panel concluded in Williams, and we agree with the Williams panel on this point, that 81 is after 2009. So there was no, since there was no blocking legislation, there was no basis for Congress to withhold the Coloss in 2007 and 2010. And therefore, at a very minimum, we're entitled to those Colosses as a statutory matter. Thank you, Donald. Thank you. This is the land down there. It includes our proceed. All right