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Since the beginning of the year, Chief Justice William Rehnquist has been using his bully pulpit at the Supreme Court to remind Congress that federal judges need a pay raise. But thanks to a passionately divided U.S. Court of Appeals for the Federal Circuit, Rehnquist and his fellow justices could bypass Congress altogether and get the final word on judicial salaries. Observers of the court believe that the internal split within the Federal Circuit on Spencer Williams et al. v. United States could prompt review by the Supreme Court. On Feb. 16, a Federal Circuit panel ruled 2-1 that Congress had not violated the Constitution’s guarantee against “diminished” judicial compensation when it voted to hold back cost-of-living increases. Later that same day, the full circuit announced that it had already voted 8-3 against granting en banc review. In bitter opinions accompanying the announcement, the three dissenting judges argued that the majority decision threatened the independence of the judiciary. At issue in Williams is a 1989 law granting federal judges cost-of-living adjustments whenever general civil service employees get such raises. But four times since the statute went into effect, as other workers got COLAs, lawmakers voted to deny the raises to federal judges as well as to themselves. In public comments, Rehnquist and other judges have decried these moves as broken promises. The judiciary and its allies in the bar have lobbied to get Congress to change its stance and give the judges a $14,000 raise to recoup for the lost COLAs. Meanwhile, a few judges took the matter to court. Senior Judge Spencer Williams of the U.S. District Court in San Jose, Calif., led 18 other judges in a suit claiming Congress’ “blocking statutes” violated the Constitution’s compensation clause. In 1999, Senior Judge John Garrett Penn of U.S. District Court in D.C. agreed with the judges, ordering the government to pay the lost wages and, going forward, to grant judges raises whenever Congress increased federal salaries. The government appealed to the Federal Circuit, landing the technical constitutional question — as well as its highly charged political cousin — before the court. The results reflected the discomfort of judges caught in a legal and political debate over their own salaries. On Feb. 16, Judges Raymond Clevenger III and Arthur Gajarsa ruled that Penn “clearly erred” and reversed in favor of the government. They held that the controlling case was United States v. Will, a 1980 Supreme Court decision saying that Congress may stop promised pay raises to judges as long as it does so before the raises go into effect. That case, Clevenger wrote for the majority, was “strikingly similar” to Williams. Clevenger added, “While we can agree with the judges that the repeated departures from the 1989 Act were, perhaps, regrettable and ill-considered policy choices, we cannot accept that the Constitution … forbids it.” Senior Judge S. Jay Plager issued a 55-page dissent that said the majority was wrong in its interpretation of Will; wrong in its assessment of the 1989 law; and “wrong because it does a disservice to the judiciary by denying to it the unique protection against arbitrary action accorded to the judiciary for 200 years by the Compensation Clause of Article III” of the Constitution. A few hours after the panel decision was released, the full Federal Circuit issued an order announcing that the court had voted against rehearing the case en banc. As a senior judge, Plager was not part of the vote; only active judges may participate in deciding whether to take a case en banc. But Plager’s dissent as a member of the panel was matched, if not in length then in fervor for judicial independence, by the en banc dissents of Chief Judge Robert Mayer and Judges Pauline Newman and Randall Rader. “If the judicial department will not tend the fences between it and the legislative and the executive, no one else is going to do it,” wrote Mayer, joined by Newman and Rader. Newman, joined by Mayer and Rader, called Congress’ blocking of the judicial raises “as petty as it is unconstitutional.” “The implicit ratification, by a panel of this court, of Congress’ actions,” she added, “is a misreading of precedent as well as the Constitution.” Clevenger and Gajarsa, backed by their remaining six colleagues, answered four days later with a short note endorsing judicial independence. But, they added, “we are duty-bound to enforce” the holding of Will. The eight-judge majority concluded that if they had incorrectly interpreted the law, “the Supreme Court will have the opportunity to correct the error.” Indeed, Chicago’s Kevin Forde, who represents the judges, says he will likely ask the high court to take up Williams. Judges are typically forbidden to rule on disputes directly involving their own pocketbooks. But as Federal Circuit judges on both sides of the issue noted, because Williams affects all Article III judges, the centuries-old “Rule of Necessity” required them to decide the matter. The same would likely apply to the Supreme Court. ‘FESTO’ FALLOUT Before the Supreme Court rules on any challenge to Williams, the justices will likely decide whether to review the Federal Circuit’s controversial intellectual property decision in Festo Corp. v. Shoketsu Kinzoki Kogyo Kabushiki Co. In that case, the full court ruled 8-4 against inventors who narrowed their initial claims in order to win a patent. The majority held that in those situations, the “doctrine of equivalents” would not help inventors win infringement suits against competitors who sell knock-off products that are slightly modified versions of the patented inventions. Festo has hired Kirkland & Ellis’ Kenneth Starr, the former D.C. Circuit judge and Whitewater independent counsel, to persuade the Supreme Court to now get involved. Arthur Neustadt of Oblon, Spivak, McClelland, Maier & Neustadt represents Shoketsu. Underscoring the significance of the case, the Federal Circuit Bar Association has agreed to file a friend-of-the-court brief asking the high court to grant certiorari. The doctrine of equivalents is also at the center of Johnson & Johnston Associates Inc. v. R.E. Service Co. Inc. and Mark Frater, which the Federal Circuit recently agreed to hear en banc. The case deals with a split within the circuit over whether inventors may use the doctrine of equivalents to defend their patents for subject matter that is disclosed but not claimed in a patent. The case was originally argued before a three-judge panel of Senior Judge Glenn Archer and Judges Pauline Newman and Randall Rader in December 1999. Reflecting obvious interest within the full Federal Circuit, the court ordered an en banc review on Jan. 24. Donald Dunner of Washington, D.C.’s Finnegan, Henderson, Farabow, Garrett & Dunner represents Johnson & Johnston Associates. Archie Robinson of San Jose, Calif.’s Robinson & Wood represents R.E. Service Co. HEAT OF BATTLE Chief Judge Robert Mayer earned a Bronze Star as an Army Ranger in Vietnam. Now, veterans groups may want to give him a medal of their own for two opinions he wrote last month. At the heart of William Schism and Robert Reinlie v. United States are broken promises made to young military recruits in the 1940s and 1950s. Schism and Reinlie enlisted in the Navy and the Army, respectively, during World War II. As was the practice during the war and at least until 1956, they were told by government recruiters that they and their family members could get free health care for the rest of their lives. All Schism and Reinlie had to do was stay in the military for 20 years. The two say they upheld their half of the deal, but accuse the government of backing away from its share. But in 1998, a federal trial judge in Florida held that any promises that recruiters made were not “contractually binding.” On Feb. 8, Federal Chief Judge Robert Mayer, Judge Pauline Newman, and Senior Judge S. Jay Plager unanimously reversed. “The terms of the contract were set when the retirees entered the service and fulfilled their obligation,” Mayer wrote for the panel. “The government cannot unilaterally amend the contract terms now.” The decision applies only to Schism and Reinle, but it could be applied to thousands or even millions of other veterans. Schism and Reinlie’s lawyer, George Day of Fort Walton Beach, Fla., could not be reached for comment. Roy Hawkens of the Department of Justice’s Civil Division represented the government. A DOJ spokesman said the department was reviewing its appeal options. Schism was the second decision in less than a week in which the Federal Circuit ruled in favor of veterans. On Feb. 2, the panel held in William Allen v. Anthony Principi that disabled veterans who are dependent on drugs or alcohol as a result of their service-related post-traumatic stress disorder are entitled to heightened benefits. Ronald Smith of Disabled American Veterans, who represented Allen, a Vietnam veteran, calls the ruling “a 180 degree” reversal of the policy of the Department of Veterans Affairs and the Court of Appeals for Veterans Affairs. As in Schism, Smith says, “We have cases lined up behind” Allen, predicting that thousands of substance-addicted veterans could benefit from the ruling. The decision was authored by Mayer and joined by Judges Paul Michel and Alvin Schall. Michael Dufault of the DOJ’s civil division represented the government. A DOJ spokesman says the government is reviewing its appeal options.

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