Peter H. Beer, Terry J. Hatter, Jr., Richard A. Paez, Laurence H. Silberman, A.… v. United States

United States Court of Appeals
for the Federal Circuit
__________________________
PETER H. BEER, TERRY J. HATTER, JR.,
RICHARD A. PAEZ, LAURENCE H. SILBERMAN,
A. WALLACE TASHIMA AND U. W. CLEMON,
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2010-5012
__________________________
Appeal from the United States Court of Federal
Claims in case no. 09-CV-037, Senior Judge Robert H.
Hodges, Jr.
__________________________
CHRISTOPHER L ANDAU , Kirkland & Ellis, LLP, of
Washington, DC, argued for plaintiffs-appellants. With
him on the brief were JOHN C. O’Q UINN and K. WINN
ALLEN .
BRIAN M. SIMKIN , Assistant Director, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for the defen-
dant-appellee. With him on the brief were TONY WEST,
Assistant Attorney General, Jeanne E. Davidson, Direc-
tor, and MICHAEL S. M ACKO, Trial Attorney.

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BEER v. US 2
JEFFREY A. LAMKEN , MoloLamken LLP, of Washing-
ton, DC, for amicus curiae. With him on the brief were
M ARTIN V. TOTARO and LUCAS M. WALKER.
_________________________
Before BRYSON , M AYER, and DYK , Circuit Judges.
Order for the court filed by Circuit Judge D YK . Concur-
rence filed by Circuit Judge M AYER.
D YK , Circuit Judge.
ORDER
This case returns to us on remand from the Supreme
Court. The Court ordered us to determine “the question
of preclusion.” Beer v. United States, 131 S. Ct. 2865,
2865 (2011). We hold that the plaintiffs’ claims are not
precluded by our prior decision in Williams v. United
States, 240 F.3d 1019 (Fed. Cir. 2001), cert. denied, 535
U.S. 911 (2002). But, as Williams remains binding prece-
dent on this panel, we again affirm the judgment of the
Court of Federal Claims granting summary judgment in
favor of the government.
BACKGROUND
This case involves the question of whether various
congressional enactments violate the Compensation
Clause by reducing the compensation of Article III federal
judges. The Ethics Reform Act of 1989 (“the ERA”), Pub.
L. No. 101-194, 103 Stat. 1716, put in place a system
whereby federal judges were to receive yearly cost-of-
living salary adjustments (“COLAs”). Under the ERA,
once a determination was made by Congress that COLAs
would be given to federal employees on the General
Schedule for a given year, COLAs would also be granted
to federal judges, “effective at the beginning of the first
applicable pay period” for the COLAs on the General

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BEER v. US 3
Schedule, 28 U.S.C. § 461(a)(1), and up to a maximum of
five percent each year, ERA § 704(a)(1)(B).
Prior to the calendar years 1995, 1996, 1997, and
1999, in which COLAs were provided to General Schedule
employees, Congress passed separate legislation that
blocked the payment of COLAs to federal judges.1 See
Treasury, Postal Service and General Government Ap-
propriations Act of 1995 § 630(a), 108 Stat. at 2424 (block-
ing 1995 COLA); Treasury, Postal Service and General
Government Appropriations Act of 1996, Pub. L. No. 104-
52, § 633, 109 Stat. 468, 507 (1995) (blocking 1996 COLA);
Omnibus Consolidated Appropriations Act of 1997, Pub.
L. No. 104-208, § 637, 110 Stat. 3009, 3009-364 (1996)
(blocking 1997 COLA); Omnibus Consolidated and Emer-
gency Supplemental Appropriations Act of 1999, Pub. L.
No. 105-277, § 621, 112 Stat. 2681, 2681-518 (1998)
(blocking 1999 COLA). Each of those blocking acts be-
came law prior to first day of the year that the blocking
became effective, i.e., before the first day when federal
1 For example, the blocking legislation for 1995
provided: “(a)(1) The adjustment in rates of basic pay for
the statutory pay systems that takes effect in fiscal year
1995 under section 5303 of title 5, United States Code,
shall be an increase of 2 percent. (2) For purposes of each
provision of law amended by section 704(a)(2) of the
Ethics Reform Act of 1989 (5 U.S.C. 5318 note), no ad-
justment under section 5303 of title 5, United States
Code, shall be considered to have taken effect in fiscal
year 1995 in the rates of basic pay for the statutory pay
systems.” Treasury, Postal Service and General Govern-
ment Appropriations Act of 1995, Pub. L. No. 103-329, §
630(a), 108 Stat. 2382, 2424 (1994).

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BEER v. US 4
judges would have received the adjustment to their sala-
ries.
In 1997, a group of Article III federal judges filed a
class action complaint in the United States District Court
for the District of Columbia, alleging that the blocking
legislation for the years 1995, 1996, and 1997, violated
the Compensation Clause by diminishing their compensa-
tion. Jurisdiction was predicated on the Little Tucker
Act, 28 U.S.C. § 1346, and, after an amendment to the
complaint, on the district court’s general federal question
jurisdiction, 28 U.S.C. § 1331. The plaintiffs’ requested
relief was framed as declaratory relief, asking the court,
for example, to “declare” that the blocking legislation was
“unconstitutional and void,” and to “declare” that the
plaintiffs were “entitled to damages in an amount to be
determined by the Court.” Complaint at 18, Williams v.
United States, 48 F. Supp. 2d 52 (D.D.C. 1999) (No. 97-
CV-3106).
Federal Rule of Civil Procedure 23 provides for two
types of class actions that could potentially be certified in
the circumstances of the Williams case—a Rule 23(b)(2)
class action or a Rule 23(b)(3) class action. A Rule
23(b)(2) class action involves requests for “injunctive relief
or corresponding declaratory relief” and does not in terms
require notice to the class. See Fed. R. Civ. P. 23(c)(2)(A).
It also does not require opt-out procedures. A Rule
23(b)(3) class action typically involves claims for past
damages and requires notice and opt-out procedures. See
Fed. R. Civ. P. 23(c)(2)(B). The district court in Williams
certified the class under Rule 23(b)(2), with the class
including “[a]ll persons who served as Judges of the
United States pursuant to Article III of the Constitution”
at any time during the years 1995, 1996, and 1997. Class
Certification Order at 2, Williams, 48 F. Supp. 2d 52 (No.
97-CV-3106). According to the minimum requirements

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BEER v. US 5
for Rule 23(b)(2) classes, the court did not provide the
absent class members with notice or an opportunity to opt
out of the litigation. See id.
On July 15, 1999, the district court in Williams held
that the blocking statutes for the years 1995, 1996, and
1997, violated the Compensation Clause. 48 F. Supp. 2d
at 65. Thus the class was declared to be “entitled to cost-
of-living adjustments for 1995, 1996 and 1997, together
with all other benefits which should have accrued to them
based upon those adjustments.” Id. In another class
action filed in the same district court by the same Wil-
liams plaintiffs, the district court considered the blocking
legislation for 1999. The district court ordered that “the
plaintiffs and the members of their class shall receive
. . . cost-of-living adjustment[s], pursuant to the Ethics
Reform Act of 1989, for fiscal year 1999, together with all
other benefits which should have accrued to them based
upon those adjustments.” Order, Williams v. United
States, No. 99-CV-1982, slip op. at 1-2 (D.D.C. Dec. 29,
1999). In a later filed opinion, the district court explained
that, similar to its holding in Williams, 48 F. Supp. 2d 52,
with respect to the 1995, 1996, and 1997 blocking stat-
utes, the blocking statute for 1999 also violated the Com-
pensation Clause. Memorandum, Williams v. United
States, No. 99-CV-1982, slip op. at 4 (D.D.C. Jan. 13,
2000). We consolidated these two class actions on appeal,
see Williams v. United States, 240 F.3d at 1025 n.1, and
they are collectively referred to as the “Williams litiga-
tion.”
On appeal, this court held that “the district court pos-
sessed Little Tucker Act jurisdiction,” “at least as to the
Judges’ prayer for relief for the 1995 year, since each
individual judge would receive less than $10,000 for the
unpaid COLA for that year.” Williams, 240 F.3d at 1025.
With respect to the merits of the case, we held that the

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BEER v. US 6
blocking legislation at least for 1995, preventing COLAs
established in the ERA from taking effect (before those
COLAs “vested”), was not unconstitutional. Id. at 1032,
1039-40. In this respect, we held that the result was
dictated by the Supreme Court’s decision in United States
v. Will, 449 U.S. 200 (1980). One judge dissented. On
February 16, 2001, the same day that a panel of this court
decided Williams, the court declined to hear the case en
banc, with three judges dissenting. Williams v. United
States, 264 F.3d 1089 (Fed. Cir. 2001). Subsequently, the
Supreme Court denied the plaintiffs’ petition for certio-
rari, with three Justices dissenting. Williams v. United
States, 535 U.S. 911 (2002).
On November 28, 2001, Congress enacted further leg-
islation affecting judicial pay. See Departments of Com-
merce, Justice, and State, the Judiciary, and Related
Agencies Appropriations Act of 2002, Pub. L. No. 107-77,
§ 625, 115 Stat. 748, 803 (2001) (the “2001 legislation”).
Instead of proceeding in a piecemeal fashion to block the
COLAs, the 2001 legislation broadly provided:
[N]one of the funds appropriated by this joint
resolution or by any other Act shall be obligated or
expended to increase . . . any salary of any Federal
judge or Justice of the Supreme Court, except as
may be specifically authorized by Act of Congress
hereafter enacted. . . . This section shall apply to
fiscal year 1981 and each fiscal year thereafter.
Act of Dec. 15, 1981, Pub. L. No. 97-92, § 140, 95 Stat.
1183, 1200, amended by § 625, 115 Stat. at 803. For fiscal
year 2007, Congress enacted legislation providing COLAs
for federal employees on the General Schedule, but did
not enact legislation providing COLAs for federal judges,
and accordingly, federal judges received no COLA for that
year. Article III judges were granted COLAs in years

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BEER v. US 7
2002, 2003, 2004, 2005, 2006, and 2008, but these ad-
justments did not reflect the disputed 1995, 1996, 1997,
and 1999 COLAs.
On January 16, 2009, the plaintiffs, all members of
the certified class in Williams, but not named plaintiffs in
the Williams litigation, filed the present suit in the Court
of Federal Claims under the Tucker Act, seeking back pay
for the failure to receive COLAs in 1995, 1996, 1997,
1999, and 2007, as well as declaratory relief that Con-
gress may not in the future withhold COLAs as provided
by the ERA. The plaintiffs pointed out that, not only did
each denial of COLAs impact judicial salaries for that
year, but it also affected the base salaries from which
COLAs were or were not granted in subsequent years.
The government moved for summary judgment on the
ground that, as a matter of stare decisis, the suit was
barred by our Williams decision, and on the alternative
ground that, inter alia, the suit was barred by “res judi-
cata” because of the earlier Williams judgment. See
Order, Beer v. United States, No. 09-37C, slip op. at 1
(Fed. Cl. Oct. 16, 2009). Although the preclusion issue
was designated by the government as an issue of “res
judicata” at the Court of Federal Claims, it was more
properly termed a question of collateral estoppel or issue
preclusion.2 While the claims in the present matter
overlap with those in Williams, they are not identical,
though the constitutional issues are identical.
2 In the government’s July 26, 2010, brief to the
Supreme Court opposing certiorari and in the parties’
additional briefing to this court regarding preclusion, the
question is referred to as one of “issue preclusion.” See
Brief for U.S. Opposing Certiorari at 12, Williams, 535
U.S. 91 (No. 01-175); Appellant’s Supplemental Br. at 4,
9; Appellee’s Supplemental Br. at 10.

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BEER v. US 8
The Court of Federal Claims did not reach the issue
preclusion question. Instead, the court found that an
analysis of the “complex legal and constitutional issues”
presented by the preclusion argument was not “an effec-
tive use of judicial resources” given the parties’ agreement
that the court “must dismiss plaintiffs’ Complaint in light
of the Williams precedent.” Order, Beer, No. 09-CV-37,
slip op. at 2. On October 16, 2009, the Court of Federal
Claims dismissed the complaint, solely on the ground that
the precedent set by “Williams forecloses [the] court’s
ability to grant plaintiffs the relief they seek.” Id. (inter-
nal quotation marks omitted).
The plaintiffs appealed to this court. On January 15,
2010, a panel of this court summarily affirmed the judg-
ment of the Court of Federal Claims. We agreed with the
parties “that this court’s opinion in Williams . . . controls
the disposition of this appeal by a panel of this court,” and
accordingly summarily affirmed the decision of the Court
of Federal Claims. Beer v. United States, 361 F. App’x
150, 151-52 (Fed. Cir. 2010). We did not reach the gov-
ernment’s alternative preclusion argument. On the same
day, the court denied a petition for hearing en banc, with
four judges dissenting. Beer v. United States, 592 F.3d
1326 (Fed. Cir. 2010).
The plaintiffs subsequently petitioned for certiorari to
the Supreme Court. In its opposition brief, the govern-
ment argued that our decision in Williams was correct,
and alternatively that plaintiffs were precluded from
relitigating the Compensation Clause issue decided in
Williams because they were members of the certified class
in that case. On June 28, 2011, the Supreme Court
granted certiorari, and entered the following order:
The judgment is vacated, and the case is re-
manded to the United States Court of Appeals for

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BEER v. US 9
the Federal Circuit for consideration of the ques-
tion of preclusion raised by the Acting Solicitor
General in his brief for the United States filed
July 26, 2010. The Court considers it important
that there be a decision on the question, rather
than that an answer be deemed unnecessary in
light of prior precedent on the merits.
Beer v. United States, 131 S. Ct. 2865, 2865-66 (2011).
DISCUSSION
The preclusion question here is whether absent class
members in an unsuccessful Rule 23(b)(2) class action,
who did not receive notice of the pendency of the action,
are subject to preclusion. The Supreme Court has held
that absent class members may not challenge the certifi-
cation of a Rule 23(b)(2) class on the grounds that the
certification was improper under the Federal Rules of
Civil Procedure. Ticor Title Ins. Co. v. Brown, 511 U.S.
117, 121 (1994) (per curiam). However, absent class
members may later object to a res judicata or collateral
estoppel bar on grounds of due process, for example, on
the grounds that the absent class members were inade-
quately represented in the prior action, see Hansberry v.
Lee, 311 U.S. 32, 42-43 (1940), or did not receive constitu-
tionally required notice, see Wal-Mart Stores, Inc. v.
Dukes, 131 S. Ct. 2541, 2559 (2011). Thus, the issue
before us is whether the plaintiffs were entitled, as a
matter of due process, to notice of the Williams litigation
before being bound by the final judgment in Williams. If
notice was required, we must also determine what consti-
tutes sufficient notice to meet the requirements of due
process. We address each of these two issues in turn.
I

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BEER v. US 10
As a general matter, there is “no doubt that at a
minimum [due process] require[s] that deprivation of life,
liberty or property by adjudication be preceded by notice
and opportunity for hearing appropriate to the nature of
the case.” Mullane v. Cent. Hanover Bank & Trust Co.,
339 U.S. 306, 313 (1950). However, there may be an
exception for certain injunctive class actions, perhaps on
the theory that the right to injunctive relief does not
constitute a traditional property interest.3 Thus, lan-
guage in some Supreme Court opinions, and various
decisions of our sister circuits, have suggested that in
some Rule 23(b)(2) class actions for injunctive or declara-
tory relief, notice and opt-out rights are not constitution-
ally required if the named plaintiffs were adequately
representative of the class. For example, the Supreme
Court in Hansberry, 311 U.S. at 42-43, stated that “mem-
bers of a class not present as parties to the litigation may
be bound by the judgment where they are in fact ade-
quately represented by parties who are present . . . .”4
3 See Landgraf v. USI Film Prods., 511 U.S. 244,
266, 273 (1994) (“When the intervening statute authorizes
or affects the propriety of prospective relief, application of
the new provision is not retroactive.”); Am. Steel Foun-
dries v. Tri-City Cent. Trades Council, 257 U.S. 184, 201
(1921) (Court obligated to apply intervening legislation
that eliminated a right to injunctive relief against labor
picketing); see also Benjamin v. Jacobson, 172 F.3d 144,
164 (2d Cir. 1999) (en banc) (“[T]he provisions of a consent
decree that order prospective relief remain subject to . . .
changes in law” and are “neither final nor ‘vested’ in the
constitutional sense.”); Plyler v. Moore, 100 F.3d 365, 374-
75 (4th Cir. 1996) (concluding that the plaintiffs “had no
property right in the continued enforcement of a decree
granting prospective relief”).
4 See also Richards v. Jefferson Cnty., 517 U.S. 793,
800-801 (1996) (quoting Hansberry); Johnson v. Gen.
Motors Corp., 598 F.2d 432, 437 (5th Cir. 1979) (“When

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BEER v. US 11
However, the Supreme Court has not definitively decided
whether absent class members in such actions are enti-
tled to notice as a matter of due process. In Wal-Mart, the
Supreme Court noted that “[Rule 23](b)(2) does not re-
quire that class members be given notice and opt out
rights, presumably because it is thought (rightly or
wrongly) that notice has no purpose when the class is
mandatory, and that depriving people of their right to sue
in this manner complies with the Due Process Clause.”
131 S. Ct. at 2559 (emphasis added); see also Richards,
517 U.S. at 801 (noting the “possibility that in some class
suits adequate representation might cure a lack of notice”
(emphasis added)). The issue of whether notice is re-
quired in all injunctive or declaratory actions is not before
us, and we do not address it. This case involves a far
narrower question—whether absent class members are
entitled to notice in class actions involving injunctive or
declaratory claims as well as monetary claims.
It is well established that, in class actions seeking
only monetary recovery, notice is essential to binding
absent class members. See Phillips Petroleum Co. v.
Shutts, 472 U.S. 797, 811-12 (1985). Indeed, for claims
“wholly or predominately for money judgments,” absent
class members, as a matter of due process, “must receive
notice plus an opportunity to be heard and participate in
only equitable relief is sought in an action involving a
cohesive plaintiff group . . . , the due process interests of
absent members will usually be safeguarded by adequate
representation alone.”); Robinson v. Metro-North Com-
muter R.R. Co., 267 F.3d 147, 165 (2d Cir. 2001) (“Where
class-wide injunctive or declaratory relief is sought in a
(b)(2) class action . . . , there is a presumption of cohesion
and unity between absent class members and the class
representatives such that adequate representation will
generally safeguard absent class members’ interests and
thereby satisfy the strictures of due process.”).

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BEER v. US 12
the litigation” as well as the opportunity to “opt out”
before being precluded from pursuing individual damage
claims. Id. at 811, 812 & n.3; see also AT&T Mobility
LLC v. Concepcion, 131 S. Ct. 1740, 1751 (2011) (“For a
class-action money judgment to bind absentees in litiga-
tion, class representatives must at all times adequately
represent class members, and absent members must be
afforded notice, an opportunity to be heard, and a right to
opt out of the class.”); Wal-Mart, 131 S. Ct. at 2559 (“In
the context of a class action predominantly for money
damages we have held that absence of notice and opt-out
violates due process.”). In other words, in a Rule 23(b)(3)
class action for money damages, notice and opt-out rights
are essential to due process. Adequate representation is
not alone sufficient. Eisen v. Carlisle & Jacquelin, 417
U.S. 156, 176-77 (1974).
The Supreme Court established in Wal-Mart that due
process requires notice be given to absent class members
when monetary claims are more than just “incidental” to
the claims for injunctive or declaratory relief. See Wal-
mart, 131 S. Ct. at 2557, 2559-60. Wal-Mart explicitly
declined, however, to decide whether notice was required
as a matter of due process when monetary claims were
“incidental” to injunctive or declaratory claims in a class
action. Id. at 2560. The Court held instead that the
monetary claims in Wal-Mart were clearly not “inciden-
tal,” because Wal-Mart was “entitled to individualized
determinations” of its liability, affording Wal-Mart the
opportunity to “show that it took [] adverse employment
action[s] against [particular] employee[s] for any reason
other than discrimination.” Id. at 2560-61. Thus the
Court stated: “We need not decide in this case whether
there are any forms of ‘incidental’ monetary relief that are
consistent with the interpretation of Rule 23(b)(2) we

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BEER v. US 13
have announced and that comply with the Due Process
Clause.” Id. at 2560.
As recognized in Wal-Mart, the source of the “inciden-
tal” concept lies in decisions of some of our sister circuits
that concluded that a Rule 23(b)(2) class action could be
certified without notice to absent class members in cir-
cumstances where monetary relief “is incidental to re-
quested injunctive or declaratory relief.” Allison v. Citgo
Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998); see
also Lemon v. Int’l Union of Operating Eng’rs, 216 F.3d
577, 581 (7th Cir. 2000) (“[C]ertification under Rule
23(b)(2), without notice or opportunity to opt out, is im-
permissible unless the requested monetary damages are
‘incidental’ to requested injunctive or declaratory relief.”).
But those cases did not involve issue preclusion, and did
not decide whether notice was required as a matter of due
process before binding absent class members.
Even if we were to assume that there could be an “in-
cidental” exception for due process purposes, the question
would remain as to the scope of the exception. The par-
ties here disagree as to what monetary relief qualifies as
“incidental.” Citing Allison, the government argues that
the monetary aspects of the claims in Williams were
incidental because they “flow[ed] directly from liability to
the class as a whole” and were “capable of computation by
means of objective standards and not dependent in any
significant way on the intangible, subjective differences of
each class member’s circumstances.” Allison, 151 F.3d at
415. The plaintiffs, on the other hand, argue that mone-
tary relief is the quintessential remedy at law, readily
divisible, and cannot be reduced to “incidental” status
through a combination with a request for injunctive or
declaratory relief. The plaintiffs further argue that the
monetary aspect of Williams could not be incidental to the

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BEER v. US 14
requested declaratory relief because that requested de-
claratory relief was itself about an entitlement to money.
We agree with the plaintiffs that the incidental excep-
tion, if there is one, cannot apply where the requested
injunctive or declaratory relief is directed to the payment
of money. The requested relief in Williams was framed as
declaratory relief, asking the court, for example, to “de-
clare” that the blocking legislation was “unconstitutional
and void,” and to “declare” that the plaintiffs were “enti-
tled to damages in an amount to be determined by the
Court.” Complaint at 18, Williams, 48 F. Supp. 2d 52 (No.
97-CV-3106). Thus the government conceded that the
declaratory relief requested in Williams was itself di-
rected to the payment of money, and the case was “essen-
tially one for money damages.” Brief of Defendant-
Appellant at 24, Williams, 240 F.3d 1019 (No. 99-1572),
1999 WL 33607449.
It may be, as the government argues, that the “other
than money damages” provision of the Administrative
Procedure Act (“APA”), 5 U.S.C. § 702, turns on whether a
request is for past damages or an order for payment of
money in the future.5 But, as far as the due process
5 See Bowen v. Massachusetts, 487 U.S. 879, 893
(1988) (“The fact that a judicial remedy may require one
party to pay money to another is not a sufficient reason to
characterize the relief as ‘money damages.’”). However,
recent Supreme Court authority suggests that the APA
may make no such distinction. “Almost invariably . . .
suits seeking (whether by judgment, injunction, or decla-
ration) to compel the defendant to pay a sum of money to
the plaintiff are suits for ‘money damages,’ as that phrase
has traditionally been applied, since they seek no more
than compensation for loss resulting from the defendant's
breach of legal duty.” Great-West Life & Annuity Ins. Co.
v. Knudson, 534 U.S. 204, 210 (2002) (quoting Bowen, 487

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BEER v. US 15
right to notice is concerned, we are unable to distinguish
between actions in which the suit is for past due money
and those situations in which the action is for both past
due money and the payment of future money. Nor are we
aware of any cases in which other circuits have made such
a distinction.6 Indeed, the District of Columbia Circuit
has held that notice is required in a class action seeking
declaratory and injunctive relief that would merely “serve
as a foundation for a damages award.” Richards v. Delta
Airlines, Inc., 453 F.3d 525, 530 (D.C. Cir. 2006).
Because we conclude that both the prospective and
retrospective aspects of the claims in Williams were
essentially monetary in nature, we hold that due process
does not allow the plaintiffs’ claims in the present suit to
be precluded by Williams in the absence of notice of the
Williams class. In other words, Williams was a case in
which money claims predominated and in which, accord-
ingly, notice to absent class members was required as a
matter of due process. We need not address whether opt-
out rights are also required as a matter of due process.
II
The government argues that even if notice were re-
quired, the due process notice obligation was satisfied
because the plaintiffs here received actual notice of the
U.S. at 918-19 (Scalia, J., dissenting)) (internal quotation
marks omitted).
6 The class certification cases such as Allison all in-
volved claims for non-monetary declaratory or injunctive
relief. See, e.g., Allison, 151 F.3d at 407 (seeking “restruc-
turing of offending [discriminatory] policies” and “in-
statement into existing jobs”); see also, e.g., James v. City
of Dallas, Tex., 254 F.3d 551, 572 (5th Cir. 2001) (seeking
removal of liens and the clearing of titles).

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BEER v. US 16
Williams litigation while it was pending. We consider
whether actual notice is sufficient.
The government’s theory is that the plaintiffs received
actual notice of the Williams suit through the press, and
specifically through an article in The Third Branch,7 a
monthly newsletter distributed by the Administrative
Office of the United States Courts to the federal judiciary.
The government requests at least a remand to the trial
court so that a record can be developed with respect to
whether plaintiffs in fact had actual notice of Williams.
We hold that actual informal notice is insufficient to
satisfy due process, making such a remand unnecessary.
The government relies on United Student Aid Funds,
Inc. v. Espinosa, 130 S. Ct. 1367 (2010), to support its
argument that actual notice is sufficient. However, the
government’s reliance on United is misplaced. United
involved a bankruptcy proceeding whereby the debtor
sought to obtain a discharge of a government-sponsored
student loan debt via an “undue hardship” determination.
Id. at 1373. Though the debtor failed to serve United
with the proper summons and complaint in order to
initiate an adversary proceeding, the bankruptcy court
mailed notice and a copy of the debtor’s discharge plan to
7 The article stated in relevant part: “Twenty U.S.
court of appeals and district court judges have filed a
class action suit in the U.S. District Court for the District
of Columbia (Williams v. United States) seeking to restore
cost-of-living adjustments (COLAs) denied to the Judici-
ary from 1994 to 1997. The lawsuit claims congressional
denial of annual COLAs provided under the Ethics Re-
form Act of 1989, coupled with inflation, have led to an
unconstitutional erosion of judicial compensation. The
constitutional claim, according to the lawsuit, is based on
Article III, section 1, which provides that a judge’s com-
pensation may not be reduced.” Lawsuit Seeks to Restore
COLAs, The Third Branch, Feb. 1998, at 2.

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BEER v. US 17
United. Id. at 1373-74. The Supreme Court found that
the debtor’s “failure to serve United with a summons and
complaint deprived United of a right granted by a proce-
dural rule . . . [b]ut this deprivation did not amount to a
violation of United’s constitutional right to due process.”
Id. at 1378. The procedural shortcomings of the debtor
were of no constitutional concern because “United re-
ceived actual notice of the filing and contents of [the
debtor’s] plan” from the bankruptcy court, including the
information United needed “for filing a proof of claim or
an objection to the plan.” Id. at 1374, 1378. Here, unlike
United, there was no formal notice regarding the pend-
ency of the claims. United hardly supports the proposi-
tion that informal notice through an article in a
newsletter satisfies due process because formal notice was
provided.
The Supreme Court has recognized the fundamental
importance of providing a party with formal notice before
binding them to a judgment. The Court’s decision in
Nelson v. Adams USA, Inc., 529 U.S. 460 (2000), is in fact
quite similar to this case in rejecting the proposition that
actual notice is sufficient. In Nelson, a trial court added
the president and sole shareholder of a defendant com-
pany to a judgment against that company without afford-
ing him, in his individual capacity, formal notice or an
opportunity to be heard. Id. at 462-63. The Supreme
Court noted that Nelson “knew as soon as Adams moved
to amend the pleading and alter the judgment that he
might ultimately be subjected to personal liability.” Id. at
466. But despite Nelson’s actual knowledge of the cir-
cumstances, he could not be added to the judgment, as a
matter of due process, without first receiving formal
notice and being given an opportunity to be heard. Id. at
465-67.

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BEER v. US 18
In this case, it is undisputed that the plaintiffs did not
receive formal notice of the class certification in Williams
from either the court or the class representatives. “[D]ue
process . . . demand[ed] a more reliable and orderly
course.” Id. at 467. Though Nelson involved the provision
of notice to a defendant as opposed to an absent class
member, we find no basis for distinguishing between the
two, as each were entitled to notice. Consistent with this
principle, we hold that when absent class members are
entitled to notice as a matter of due process, formal notice
must be provided advising absent class members of the
pendency of the action and their right to participate
before being precluded from bringing their own action.
III
In summary, we hold that the plaintiffs are not pre-
cluded by the Williams litigation from bringing their
Compensation Clause claims in the present case. How-
ever, there has been no intervening precedent bearing on
the underlying constitutional issue since our prior affir-
mance on January 15, 2010. There we stated: “The par-
ties agree, and we must also agree,” that “this court’s
opinion in Williams . . . controls the disposition of this
appeal by a panel of this court.” Beer, 361 F. App’x at
151-52. Accordingly, we must again affirm the judgment
of the Court of Federal Claims. If the original Williams
panel was mistaken in its interpretation of the Will case,
the remedy lies with this court en banc, with the Supreme
Court, or with Congress.
Accordingly,
IT IS O RDERED THAT:
The judgment of the Court of Federal Claims is af-
firmed.

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BEER v. US 19
FOR THE C OURT
February 17, 2012
Date
/s/ Jan Horbaly
Jan Horbaly
Clerk

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United States Court of Appeals
for the Federal Circuit
__________________________
PETER H. BEER, TERRY J. HATTER, JR.,
RICHARD A. PAEZ, LAURENCE H. SILBERMAN,
A. WALLACE TASHIMA AND U. W. CLEMON,
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2010-5012
__________________________
Appeal from the United States Court of Federal
Claims in case no. 09-CV-037, Senior Judge Robert H.
Hodges, Jr.
__________________________
M AYER, Circuit Judge, concurring.
I join the court’s opinion, but I continue to believe Wil-
liams v. United States was wrongly decided for the rea-
sons set out in my opinion dissenting from the refusal to
rehear that case en banc. 264 F.3d 1089, 1090-93 (Fed.
Cir. 2001).

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