Federal Circuit Hears En Banc Oral Argument over Beer

The Federal Circuit sat en banc this past Friday and heard the oral argument in Beer v. U.S. That case concerns judicial pay for Article III judges.  The judges of the Court of Appeals for the Federal Circuit are Article III judges; so, the outcome of the appeal could affect their pay.

Chief Judge Randall Rader made a statement immediately before the oral argument began acknowledging the fact that this case could affect the judges of the Federal Circuit themselves.  However, he noted that the “Rule of Necessity” required them to adjudicate the case:  [Listen].

Judge Rader’s statement:

Today’s appeal presents a 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.  To some of us this is more than unusual, it is 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 “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 the judiciary unlike the legislature does not have the luxury of inaction when faced with difficult decisions.  Whatever difficulties a case may bring “we have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given.”  It is under this mandate that we sit and hear this case today.

You can listen to the entire oral argument here: [Listen].

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