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How To Win Friends and Influence Government Contracts Law:1 Improving the Use of Amicus Briefs at the Federal Circuit
Jayna Marie Rust*
1 Businessman Dale Carnegie first published How to Win Friends and Influence People in 1936. See DALE CARNEGIE, HOW TO WIN FRIENDS & INFLUENCE PEOPLE (1936). The Missouri native’s book has since sold more than 15 million copies since that time. See DALE CARNEGIE, HOW TO WIN FRIENDS & INFLUENCE PEOPLE (Revised ed. 1981) [hereinafter CARNEGIE REVISED]. The book imparts timeless advice such as “Talk in terms of the other person’s interests”; “Show respect for the other person’s opinions. Never say, ‘You’re Wrong’”; and “Make the other person happy about doing the thing you suggest.” Id. at 112, 200, 249. Mr. Carnegie’s advice provides the backdrop for much of this Note’s suggestions and solutions.** Jayna Marie Rust ([email protected]) is a J.D. candidate at The George Washington University Law School and a Notes Editor for the Public Contract Law Journal. She wishes to thank the Honorable Jeri K. Somers, Timothy Sullivan, and Collin D. Swan for taking the time to read previous drafts and provide thoughtful advice.
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Table of Contents
I. Introduction................................................3II. Brief Overview of the Role of Amicus Briefs in Appellate Litigation.....................................................6A. Which Amicus Briefs are Valuable..........................71. Who the Helpful Amici Are...............................92. Particular Areas Where Amicus Briefs Provide the Most Assistance.................................................11
B. Amicus Briefs that Courts do not Consider to be Helpful. .12III. Brief Overview of the Federal Circuit’s Approach to Amicus Briefs........................................................14A. Federal Rule of Appellate Procedure 29 and the Federal Circuit’s Local Rule.........................................14B. The Federal Circuit’s Commentary on Amicus Briefs........16
IV. Forgetting What the Other Wants: Why the Use of Amicus Briefs Could Be Better........................................19A. The Federal Circuit Sends Mixed Signals on Its Approach to Amicus Briefs, Ultimately Deterring Amici Participation......191. Federal Circuit Local Rule 29 has not Been Utilized to Appeal to the Government Contracts Community...............202. Limited Responses to Amicus Submissions Creates Little to No Incentive for the Government Contracts Community to File Future Amicus Briefs.......................................24
B. Courts Generally do not Read Briefs with the Types of Arguments That Government Contracts Amici Have Presented to the Federal Circuit..............................................26
V. Winning to “Our” Way of Thinking: Trying to See Things from the Other’s Point of View.....................................29A. The Federal Circuit Should Address Briefs that Amici File and Use Federal Circuit Local Rule 29 to Ask for More Policy Related Briefs...............................................31B. The Government Contracts Community Must Provide Briefs that Address what the Court Wants to Hear, Not Just What the Amicus Wants to Say.................................................32
VI. Conclusion................................................34
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I. Introduction
When addressing a government contracts group in December
2009, then Chief Judge Paul Michel of the U.S. Court of Appeals
for the Federal Circuit (Federal Circuit), noted “that the
Federal Circuit does not have the level of amici participation in
the government contracts area that it has in the patent and other
areas within its jurisdiction.”2 Chief Judge Michel added that
“[amici] participation would help the Federal Circuit understand
the ‘downstream,’ or real-world, effects of its prior and/or
potential decisions in the Government contracts arena.”3
As the former chief judge’s comments point out, government
contracts is but one area of jurisdiction for the Federal
Circuit. Indeed, the Article III court currently has nationwide
appellate jurisdiction over international trade, government
contracts, patents, trademarks, federal personnel, veterans’
benefits, public safety officers’ benefits claims, and certain
money claims against the Government.4 Disregarding the fact that
there is a smaller number of government contracts appeals brought
to the Federal Circuit compared to some of its other areas of
2 Robert K. Huffman, Federal Circuit Decisions on Government Contracts: Insights from the Roundtable, 24 NASH & CIBINIC REP. ¶ 7, at 26 (Feb. 2010).3 Id. at 27. 4 Court Jurisdiction, CT. OF APPEALS FOR THE FED. CIR., http://www.cafc.uscourts.gov/the-court/court-jurisdiction.html (last visited Sept. 15, 2012). Other areas of jurisdiction include appeals made from certain administrative agencies’ decisions. Id.
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jurisdiction,5 the government contracts community, according to
the former chief judge, may be lagging behind the Federal
Circuit’s other legal communities in terms of submitting amicus
briefs.6
Chief Judge Michel made this implicit call to government
contracts amici nearly three years ago, yet the government
contracts community has not responded with a flood of amicus
filings.7 Such a lack of response begs the question: why not? 5 Government contracts cases make up only 5% of the appeals brought to the Federal Circuit. Appeals Filed, by Category FY 2011, CT. OF APPEALS FOR THE FED. CIR., http://www.cafc.uscourts.gov/images/stories/the-court/statistics/Caseload_by_category_2011.pdf (last visited Sept. 15, 2012). 6 See Huffman, supra note 2, at 26.7 Of the eleven precedential Federal Circuit government contracts opinions issued between September 15, 2011 and September 15, 2012, there were no amicus briefs filed in ten. See Engage Learning, Inc., v. Salazar, 660 F.3d 1346, 1348 (Fed. Cir. 2011); Sys. Dev. Corp. v. McHugh, 658 F.3d 1341, 1342 (Fed. Cir. 2011); Scott Timber Co. v. United States, No. 2011-5092, slip op. at 1 (Fed. Cir. Sept. 5, 2012); Sys. Application & Techs., Inc. v. United States, No. 2012-5004, slip op. at 1-2 (Fed. Cir. Aug. 24, 2012); DGR Assocs., Inc. v. United States, No. 2011-5080, slip op. at 1-2 (Fed. Cir. Aug. 2, 2012); Floorpro, Inc. v. United States, 680 F.3d 1377, 1378 (Fed. Cir. 2012); VanDesande v. United States, 673 F.3d 1342, 1343 (Fed. Cir. 2012); Laguna Hermosa Corp. v. United States, 671 F.3d 1284, 1286 (Fed. Cir. 2012); Digitalis Educ. Solutions, Inc. v. United States, 664 F.3d 1380, 1382 (Fed. Cir. 2012); Minesen Co. v. McHugh, 671 F.3d 1332, 1333 (Fed. Cir. 2012). The only precedential government contracts case that did have an amicus brief filed was DirectTV Group, Inc. v. United States, 670 F.3d 1370 (Fed. Cir. 2012), which had one. (The complaint in Kam-Almaz v. United States, 682 F.3d 1364 (Fed. Cir. 2012), contained a contracts-related claim, and there was an amicus brief filed at the Federal Circuit. However, both the Court of Federal Claims and the Federal Circuit found there was no implied-in-fact contract. See id. at 1366, 1368-69.) The above-cited cases exclude the seven spent nuclear fuel appeals decided at the Federal Circuit. See Bos. Edison Co. v. United States, 658 F.3d 1361 (Fed. Cir. 2011); Sys. Fuels,
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This Note suggests that there is a variety of practical
reasons. It will then argue that if the Federal Circuit and the
government contracts community make some adjustments in their
approaches to amicus briefs, the adjustments could help these two
groups serve not only each other’s interests but their own
interests as well. This Note begins with a brief overview of
amicus briefs in appellate litigation. This overview will also
discuss which amicus briefs appellate judges find to be
particularly useful. The Note will then proceed to address how
the Federal Circuit’s stated approach to receiving and reviewing
amicus briefs compares to the other circuit courts. After
setting forth the background, this Note will analyze the Federal
Circuit’s approach to government contracts amicus briefs and the
briefs that have been previously submitted. It will then set
forth a two-fold argument.
First, the Federal Circuit should call for amicus briefs in
government contracts cases where any issue will be decided
without reliance on binding precedent. The Federal Circuit is
the only circuit court with a mechanism that specifically
Inc. v. United States, 666 F.3d 1306 (Fed. Cir. 2012); Pac. Gas & Elec. Co. v. United States, 668 F.3d 1346 (Fed. Cir. 2012); Consol. Edison Co. of N.Y., Inc. v. Entergy Nuclear Indian Point 2, LLC, 676 F.3d 1331 (Fed. Cir. 2012); Yankee Atomic Elec. Co. v. United States, 679 F.3d 1354 (Fed. Cir. 2012); Vt. Yankee Nuclear Power Corp. v. Entergy Nuclear Vt. Yankee, LLC, 683 F.3d 1330 (Fed. Cir. 2012); Kan. Gas & Elec. Co. v. United States, 685 F.3d 1361 (Fed. Cir. 2012). Even of those seven cases, only one had an amicus brief filed. See Vt. Yankee Nuclear Power, 683 at 1335.
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provides a method for reaching out to amici,8 and it should fully
use it in government contracts cases. Furthermore, when amici
file briefs, Federal Circuit panels should provide some signals
that the judges considered the amici’s arguments. Second, this
Note will propose that the government contracts community must
provide arguments that the Federal Circuit wants to hear from its
amici. Essentially, amicus briefs should begin to focus on
policy questions and provide predictions on how a decision will
impact the marketplace.
II. Brief Overview of the Role of Amicus Briefs in Appellate Litigation
Amici — or “friends of the court” — are third-parties who
have an interest in the outcome of a case and who may file briefs
that state a unique viewpoint.9 Amicus briefs can ensure a
court’s decision is sound. Indeed, “[c]ourts have an obvious
interest in improving their decision making, and they may have
come to embrace [amicus] submissions as helpful in that
endeavor.”10 While sitting on the Third Circuit, then-Judge
Samuel Alito summarized exactly why amicus briefs may be helpful:
8 See FED. CIR. R. 29. 9 Black’s Law Dictionary describes amicus curiae as “[a] person who is not a party to a lawsuit but who petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter. — Often shortened to [amicus] — Also termed friend of the court.” BLACK’S LAW DICTIONARY 98 (9th ed. 2009) (emphasis in original).10 Robert W. Bennett, Counter-Conversationalism and the Sense of Difficulty, 95 NW. U. L. REV. 845, 886 (2001).
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Even when a party is very well represented, an amicus may provide important assistance to the court. “Some amicus briefs collect background or factual references that merit judicial notice. Some friends of the court are entities with particular expertise not possessed by any party to the case. Others argue points deemed too far-reaching for emphasis by a party intent on winning a particular case. Still others explain the impact a potential holding might have on an industry or other group.”11
Acknowledging the potential benefits of amicus briefs, the
remainder of this part will provide an overview of how appellate
judges view specific amicus briefs.
A. Which Amicus Briefs Are Valuable
Although there have not been focused studies conducted on
the Federal Circuit’s use of amicus briefs,12 there are relevant
studies concerning the views of judges and justices on the
Supreme Court and appellate courts in general.13
Many judges agree that amicus briefs are helpful when a
party lacks quality representation.14 Specifically, more than
70% of circuit court judges have found that amici curiae were
11 Neonatology Assocs., P.A. v. Comm’r of Internal Revenue, 293 F.3d 128, 132 (3d Cir. 2002) (quoting Luther T. Munford, When Does the Curiae Need an Amicus?, 1. J. APP. PRAC. & PROCESS 279, 281 (1999)).12 See Paul M. Collins, Jr. & Wendy L. Martinek, Who Participates as Amici Curiae in the U.S. Courts of Appeals?, 94 JUDICATURE 128, 128 (2010) (explaining that there is limited information on amicus curiae at the courts of appeals).13 One of these studies incorporated at least one response from a Federal Circuit judge. Linda Sandstrom Simard, An Empirical Study of Amici Curiae in Federal Court: A Fine Balance of Access, Efficiency, and Adversarialism, 27 REV. LITIG. 669, 685-86 n.70 (2008).14 Id. at 693.
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valuable when a party is “not adequately represented.”15 As a
result, judges and clerks may resort to amicus briefs to fill in
deficiencies.16
In some instances, however, a judge will not only rely on
amici but may also proactively seek assistance from them. A
study published in 2008 showed that 54.2% of circuit court judges
said they request amicus participation when they “perceive a need
for additional information . . . .”17 Requesting amicus briefs
may occur when the judge perceives that the parties do not have
sufficient expertise in a particular area.18
Regardless of whether a judge has received an amicus brief
on the amici’s own accord or whether the judge has sought the
brief, there are some briefs that courts consider more useful
than others. The following parts will provide an overview of
those types of briefs.
1. Who the Helpful Amici Are
Judges do not treat all “friends of the court” equally.
Rather, there appears to be two highly valuable amici that are
applicable to government contracts appeals at the Federal
15 Id. This lack of adequate representation sometimes occurs when there is a “local trial lawyer” who has gotten in over her head. See Kelly J. Lynch, Best Friends? Supreme Court Law Clerks on Effective Amicus Curiae Briefs, 20 J.L. & POL’Y 33, 42 (2004).16 See Lynch, supra note 15, at 42.17 Simard, supra note 13, at 687.18 Andrew Frey, Amici Curiae: Friends of the Court or Nuisances?, LITIG., Fall 2006, at 6.
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Circuit. First, government agencies’ amicus briefs tend to carry
the most weight in federal appellate courts.19 In fact, judges
on the federal courts of appeals “ranked the [G]overnment as the
most helpful amicus curiae.”20
The reasons for favoring government amicus briefs are
numerous. Government briefs may provide expertise in helping
courts determine the long-range impacts of a specific decision.21
Considering other branches’ views also helps courts bring
legitimacy to an opinion.22 Additionally, encouraging amicus
participation can facilitate later enforcement of a decision.23
Even within the subsection of government briefs, some are
more favored than others. For instance, at the Supreme Court,
amicus briefs from the Solicitor General may be given more
consideration than those of all other advocates, including the
actual parties to the case.24 Briefs from government agencies
are not as favored as those from the Solicitor General, but they
are heeded some deference.25 Amicus briefs from Congress are not 19 See, e.g., Simard, supra note 13, at 697 (“Amicus curiae briefs offered by governmental entities were favored at all levels of the federal bench.”).20 Id. More than 96% of circuit court judges who responded to an academic survey stated that government amicus briefs are at least moderately helpful if not very helpful. Id.21 See id.22 Id.23 Id. at 697-98.24 See Lynch, supra note 15, at 46-47. Solicitor General amicus briefs are given great consideration because of the perceived high level of research, reliability, and impartiality attributed to them. Id. at 47.25 See id. at 49.
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considered quite as highly as those from other government
entities.26
Briefs by amici with particularized knowledge represent the
second type of generally valuable amicus briefs. Indeed,
appellate judges seem to believe that amicus briefs are most
helpful “when the amici have particular expertise in an area of
law that the parties themselves lack.”27 The desire to infuse
the decision-making process with outside expertise reflects the
awareness that judges are often “generalists” who nonetheless
must make decisions affecting technical and specialized areas of
law.28 Such a lack of specialization by these decision-makers
may also explain why 88% of former clerks said they considered a
brief authored by a prominent academic more carefully than other
briefs.29
2. Particular Areas Where Amicus Briefs Provide the Most Assistance
In general, the level of value that an amicus brief provides
will depend on factors beyond the party filing the brief. The
value of the brief will further depend on the difficulty of the
subject matter and the type of argument that the amicus makes.
26 See id.27 Frey, supra note 18, at 6.28 See Lynch, supra note 15, at 41.29 Id. at 52; see also Simard, supra note 13, at 698 (“As experts in particular fields of law, professors are able to offer an informed legal analysis of a pressing legal question from a relatively neutral perspective.”).
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First, difficulty of the subject matter and novelty to the
court are relevant. The majority of former Supreme Court law
clerks “explained that amicus briefs were most helpful in cases
involving highly technical and specialized areas of law, as well
as complex statutory and regulatory cases.”30
Second, judges most favorably review amicus briefs that do
not focus on legal arguments.31 A survey of state appellate
judges found that nearly all respondents thought amicus briefs
assisted them in understanding policy considerations.32 In an
interview, one state appellate judge said that amicus briefs
“‘need to be more explanatory of the problems created by a
particular resolution of a case and written to explain the
ramifications of a decision, rather than to advocate directly for
that position.’”33 He also described the need for amicus briefs
to highlight how a pending decision may have a “ripple effect.”34
Former Chief Judge Michel’s call for briefs that would assist the
court in seeing the “downstream” impacts of their decisions 30 See Lynch, supra note 15, at 41. The areas of particular concern to these former clerks are tax, patent, trademark, and Employment Retirement Income Security Act. Id.31 See Simard, supra note 13, at 690 n.94. Legal arguments that present an argument missing from the parties’ briefs are, however, considered helpful. Id. at 690.32 Ninety-five percent of the judges responding agreed that amicus briefs were useful for understanding policy considerations. Victor E. Flango et al., Amicus Curiae Briefs: The Court’s Perspective, 27 JUST. SYS. J. 180, 187 (2006).33 Sylvia H. Walbolt & Joseph H. Lang, Jr., Amicus Briefs: Friend or Foe of Florida Courts?, 32 STETSON L. REV. 269, 277 (2003) (quoting interview with Florida Justice Charles T. Wells).34 Id.
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echoes the same sentiments as this state judge’s comments.35 In
contemplating why federal judges also prefer amicus briefs that
provide policy arguments, amici must bear in mind that judges are
often chosen for their skills in legal analysis.36 Thus, it is
no doubt that “the most useful information” in amicus briefs is
“frequently factual and non-legal in nature.”37
B. Amicus Briefs That Courts Do Not Consider to be Helpful
Many appellate judges agree that an amicus brief restating a
party’s argument is generally not helpful.38 According to one
judge, “‘me too’ briefs, briefs that are too one-sided, or briefs
that belabor the positions of parties whose positions are already
well represented, are of no value to judges and will be
disregarded.”39 Such briefs may be considered an “echo” of a
party’s argument and may thus not receive any attention.40
Although there is some evidence that federal appellate-level
judges may actually appreciate these arguments,41 this may not be
true for the Federal Circuit.
35 See generally Huffman, supra note 2, at 27.36 See generally Lynch, supra note 15, at 42 (“[T]here are no better experts in strict legal analysis [than Supreme Court justices].”).37 Id. But see Walbolt & Lang, supra note 33, at 308 (“Judges generally will welcome briefs that present an important perspective or legal argument that otherwise might be overlooked by the main litigants . . . .”).38 See Walbolt & Lang, supra note 33, at 308; Lynch, supra note 15, at 43, 45; Simard, supra note 13, at 694-95. 39 Walbolt & Lang, supra note 33, at 308.40 Id. at 277.41 Simard, supra note 13, at 694-95.
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In a 2011 interview, the current chief judge of the Federal
Circuit, Randall R. Rader, said that amicus briefs are most
helpful to him if they “don’t just repeat the arguments made by
one of the parties.”42 Chief Judge Rader then went on to
reiterate former Chief Judge Michel’s sentiments: “The best
amicus briefs try to help us see the implications of our cases
long term . . . .”43 He further described the types of long-
range predictions that he finds most helpful as ones with
“statistics and insights into how the court’s cases would have
some impact downstream in the marketplace.”44
III. Brief Overview of the Federal Circuit’s Approach to Amicus Briefs
From the outside, the Federal Circuit appears to be more
amenable to amicus briefs than other courts of appeals. As this
part will explain, the Federal Circuit’s local rule on amicus
briefs and the previously mentioned judicial comments on them
signal that the court is receptive to prospective amici.
A. Federal Rule of Appellate Procedure 29 and the Federal Circuit’s Local Rule
Federal Rule of Appellate Procedure (FRAP) 29 governs amicus
briefs and guides federal courts of appeals and their parties on
42 S. Lloyd Smith, An Interview with Chief Judge Randall R. Rader, LANDSLIDE, Mar.-Apr. 2011, at 6. Although Chief Judge Rader was addressing how amicus briefs may be useful in patent cases, he did not appear to limit his thoughts to those types of cases. See id. at 6-7.43 Id. at 6.44 Id. at 7.
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how to approach them.45 The rule explains: (1) when amicus
briefs are permitted, (2) what motions are required for filing
these, (3) the contents and form of an amicus brief, (4) the
permissible length of an amicus brief, (5) the time for filing,
(6) the general bar on amici submitting reply briefs, and (7) the
general bar on amici participating in oral arguments.46 Like
other courts of appeals, the Federal Circuit follows FRAP 29, but
it has also supplemented the FRAP with its own local rule.47
That additional rule suggests that the Federal Circuit may be
more proactive about securing amicus briefs than other
circuits.48 Federal Circuit Local Rule 29(b) states:
List of Amicus Curiae. The clerk will maintain a list of bar associations and other organizations to be invited to file amicus curiae briefs when the court directs. Bar associations and other organizations will be placed on the list if they request. The request must be renewed annually not later than October 1.49
No other circuit’s local rules discuss the maintenance of an
amici list that it will use to solicit briefs. Instead, other
circuits’ local rules deal only with what the court would do if a
45 See FED. R. APP. P. 29.46 Id.47 See FED. CIR. R. 29. 48 See Ruben J. Garcia, A Democratic Theory of Amicus Advocacy, 35 FLA. ST. U. L. REV. 315, 323 (2008) (citing FED. CIR. R. 29) (“Sometimes, courts reach out to experts to file amicus briefs. The Federal Circuit, for example, maintains a list of bar and other associations which will be invited to file briefs when the court directs.”).49 FED. CIR. R. 29(b).
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brief would cause recusal of a judge,50 filing of briefs when a
rehearing has been ordered,51 word limits,52 making a motion to
file briefs,53 and filing of a letter in lieu of a brief.54
The list that Federal Circuit Local Rule 29 refers to,
however, is minimal. The current list has but eight associations
and organizations on it.55 Although the list includes the
Department of Justice and the Federal Circuit Bar Association –
two groups that have some government contracts attorneys – the
majority of the groups listed are not related to government
contracts.56 Rather, the majority is made up of five
intellectual-property associations/organizations and the National
Organization of Veterans’ Advocates.57
B. The Federal Circuit’s Commentary on Amicus Briefs
For courts following FRAP 29, three approaches to amicus
briefs emerge: (1) preventing their filing; (2) liberally
allowing them but not reading them all; and (3) encouraging them
50 2d CIR. R. 29.1(a); 5th CIR. R. 29.4; 9th CIR. R. 29-2 advisory committee’s note; D.C. CIR. R. 29(b).51 3d CIR. R. 29.1(a); 9th CIR. R. 29-2 advisory committee’s note; 10th CIR. R. 29.1.52 3d CIR. R. 29.1(b).53 5th CIR. R. 29.1.54 9th CIR. R. 29-1 advisory committee’s note.55 See U.S. Court of Appeals for the Fed. Circuit, List of 2012 Active Amicus Curiae Briefs (on file with the author).56 Id. 57 Id. The intellectual property organizations on the list include the Austin Intellectual Property Law Association, the Intellectual Property Law Association of Chicago, the National Association of Patent Practitioners, and the New York Intellectual Property Law Association. Id.
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and reading them. The Federal Circuit’s leadership has attempted
to characterize the court as falling within the third approach.
Indeed, Chief Judge Rader and former Chief Judge Michel’s
comments suggest that the Federal Circuit may be one of the
circuit courts most open to amicus briefs.58
The first approach – preventing the filing of amicus briefs
at the appellate level – is the minority approach.59 Under this
view, which is supported by the Seventh Circuit (and in
particular, Judge Posner), courts should only accept amicus
briefs in three limited circumstances.60 These circumstances are
when (1) “a party is inadequately represented,” (2) “the would-be
amicus has a direct interest in another case that may be
materially affected by a decision in this case,” or (3) “the
amicus has a unique perspective or specific information that can
assist the court beyond what the parties can provide.”61
Under the second approach, judges try not to prevent amicus
filings but nonetheless, tend not to read every brief filed. For
example, in August 2011 Justice Ruth Bader Ginsburg stated, “I
have to confess, I don’t read all of [the amicus briefs filed].
In fact, I don’t read most of them.”62 Her comment should, 58 Huffman, supra note 2, at 26-27; Smith, supra note 42, at 6-7.59 Frey, supra note 18, at 5 (citing In re Heath, 331 B.R. 424, 430 n.4 (B.A.P. 9th Cir. 2005)). 60 Voices for Choices v. Ill. Bell Tel. Co., 339 F.3d 542, 545 (7th Cir. 2003).61 Id. (citations omitted).62 Miriam Rozen, U.S. Supreme Court Justice Ruth Bader Ginsburg — and One-Time Oklahoma Resident — Shares Thoughts On What She
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however, be considered with her explanation of which ones she
does read. A 2008 law journal article cited a personal interview
with Justice Ginsburg where she explained that her clerks
delineate which amicus briefs to skip, which to skim, and which
to read in full.63 Furthermore, looking at Justice Ginsburg’s
opinions, it is clear that she and her staff do read some briefs;
for instance, her Maples v. Thomas64 opinion, announced in 2012,
cited multiple amicus briefs.65
The third approach to amicus briefs involves judges who not
only read the briefs, but have openly stated that they find such
briefs particularly useful.66 For example, former Chief Judge
Michel stated “that amicus briefs were very important in helping
the [Federal Circuit] to determine whether to take a particular
case en banc.”67 The current Chief Judge of the Federal Circuit
has recognized that there are some practical difficulties in
Reads and What She Doesn’t, TEX. LAW. BLOG (Aug. 30, 2011, 11:53 AM), http://texaslawyer.typepad.com/texas_lawyer_blog/2011/08/us-supreme-court-justice-ruth-bader-ginsburg-and-one-time-oklahoma-resident-shares-thoughts-on-what-.html.63 Simard, supra note 13, at 688. Justice Ginsburg’s statement and actions reflect the earlier discussion on judges’ varying treatment of amicus briefs. See discussion supra Part II.64 132 S. Ct. 912 (2012).65 See id. at 925 n.8. 66 Justice Alito’s comments in Neonatology Assocs., P.A. v. Commissioner of Internal Revenue, 293 F.3d 128, 132 (3d Cir. 2002) suggest that he may be in this camp. See discussion supra Part II.67 See Huffman, supra note 2, at 27.
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filing amicus briefs,68 but like Chief Judge Michel he also has
encouraged their submission whenever possible.69
IV. Forgetting What the Other Wants: Why the Use of Amicus Briefs Could Be Better
If Federal Circuit Local Rule 29 and the court’s chief
judges have explicitly and implicitly stated that amicus briefs
will be considered,70 why aren’t there more amicus briefs filed
in government contracts cases?71 As former Chief Judge Michel’s
comments suggest, both the government contracts community and the
Federal Circuit could benefit from more frequent use of amicus
briefs in government contracts appeals.72
The following part will explain the issues in government
contracts amicus briefs filed at the Federal Circuit. It will
also suggest that when amici file briefs, both the Federal
Circuit and amici may be more concerned with their own needs than
with what the other needs. Nevertheless, each side could
actually reap benefits from considering the other’s situation.
A. The Federal Circuit Sends Mixed Signals on Its Approach to Amicus Briefs, and This Ultimately Deters Amici Participation
68 See Randall R. Rader, Transcript: The Honorable Judge Randall R. Rader, Chief Judge of the Court of Appeals for the Federal Circuit: The Most Pressing Issues in IP Law Today, 2 CYBARIS AN INTELL. PROP. L. REV. 1, 10 (2011).69 See id. at 4, 10; Smith, supra note 42, at 6 (quoting Chief Judge Rader as saying “[y]es, I like amicus briefs”).70 See Huffman, supra note 2, at 26; Smith, supra note 42, at 6.71 See supra note 7 and accompanying text.72 See Huffman, supra note 2, at 26.
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Despite the fact that the Federal Circuit’s leadership has
stated they find amicus briefs useful,73 this claim has not
necessarily been reflected in all of the court’s opinions. Thus,
despite the fact that some Federal Circuit judges have said they
are explicitly open to amicus filings,74 other Federal Circuit
judges’ actions may deter amicus filings.
1. Federal Circuit Local Rule 29 Has Not Been Utilized to Appeal to the Government Contracts Community
To date, there has been no evidence of any outreach to the
government contracts community by means of the Federal Circuit
Local Rule 29 list. However, reaching out to the government
contracts community could be particularly useful, especially when
the Federal Circuit decides a case that appears to have no
grounding in binding precedent. The decision in M. Maropakis
Carpentry, Inc. v. United States,75 and the government contracts
community’s subsequent reactions to it, illustrate the utility
such outreach could provide.
In this 2010 case, a contractor sought to prove that
jurisdiction over its suit existed at the Court of Federal
Claims.76 M. Maropakis Carpentry, Inc. (Maropakis) had held a
contract for replacing windows and a roof on a Navy building.77
73 See, e.g., Smith, supra note 42, at 6.74 Id.75 609 F.3d 1323 (Fed Cir. 2010).76 Id. at 1327.77 Id. at 1325.
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There were issues in completing the performance of the contract,
and Maropakis brought suit at the Court of Federal Claims.78
Maropakis claimed that it was entitled to time extensions and
thus a remittance of the liquated damages that the Government had
assessed and withheld.79 In response, the Government brought a
counterclaim for the balance of its liquidated damages
assessment.80
The Court of Federal Claims found that the two letters
Maropakis had submitted to the Contracting Officer (CO) did not
satisfy the Contracts Disputes Act (CDA)81 claim requirements and
thus found that it did not have jurisdiction in the suit.82 On
its appeal to the Federal Circuit, Maropakis argued that the
decision below wrongly prohibited the court from considering its
defense to the Government’s claim.83 Essentially, the contractor
argued that a valid CDA claim was not necessary because its
“claim” for a time extension was actually a “defense” to the
government’s claims for liquidated damages.84 Thus, the appeal 78 See id. at 1326.79 Id.80 Id.81 41 U.S.C. §§ 7101-7109 (Supp. IV 2010). 82 See M. Maropakis Carpentry, Inc. v. United States, 84 Fed. Cl. 182, 202-03 (2008). As the court noted, the definition of a “claim” is not defined by the CDA; thus, courts rely on the FAR definition. Id. at 195 (citing FAR 2.101). The FAR defines a claim as a demand for (1) “the payment of money in a sum certain,” (2) “the adjustment or interpretation of contract terms,” or (3) “other relief arising under or relating to [the] contract.” FAR 2.101.83 M. Maropakis Carpentry, 609 F.3d at 1329-30.84 See id.
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turned on whether or not a contractor needed to present the CO
with a valid CDA claim before asserting an affirmative defense to
a government claim.85
A 2-1 majority of the Federal Circuit panel found that the
contractor had not brought a valid CDA claim.86 In addressing
the contractor’s argument about raising a defense rather than a
claim, the Federal Circuit did not rely on any binding precedent,
but instead it relied on decades-old decisions of the Claims
Court.87 In doing so, it held that when a contractor raises a
“defense” that has the same basis as a possible claim, that
“defense” must also meet CDA claim requirements.88
The precedent set in Maropakis has created more than “a
ripple effect.”89 By some accounts, it has created full-fledged
waves.90 In response to the opinion, many government contracts
law firms and practice groups have issued “client alerts” or
85 See id.86 Id. at 1323, 1332.87 Id. at 1331 (citing Sun Eagle Corp. v. United States, 23 Cl. Ct. 465, 477 (1991); Elgin Builders, Inc. v. United States, 10 Cl. Ct. 40, 44 (1986)).88 Id. 89 Walbolt & Lang, supra note 33, at 277 (quoting Florida Justice Charles T. Wells).90 See, e.g., Kara M. Sacilotto, When Is a “Defense” a “Claim”?: Federal Circuit Finds No Jurisdiction over Government-Caused Delays Defense Because Contractor Did Not File Its Own Claim, WILEY REIN LLP (Summer 2010), http://www.wileyrein.com/publications.cfm?sp=articles&newsletter=3&id=6266; Jocelyn Allison, Fed. Circ. Puts Contractors on Offense in Maropakis, LAW360, http://www.law360.com/articles/189380 (last visited Sept. 15, 2012).
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their equivalent.91 As one government contracts attorney told a
legal publication: “‘The analysis of government contracts
disputes in terms of filing a claim and evaluating what to put
into it just got a whole lot more complicated . . . . .’”92
Furthermore, prominent government contracts academics have
published criticisms of the opinion.93 There has also been
pushback from both of the government contracts claims-disputes
forums below the Federal Circuit.94
The discussion here of Maropakis is not intended to debate
the merits of the panel’s holding. The discussion of the case
and the reactions to it is, however, intended to suggest that the
panel’s opinion could have used more legitimacy within the 91 See, e.g., Sacilotto, supra note 90; Contractors Beware — Federal Circuit Holds that a Contractor May Not Present Factual Defenses to the Government’s Liquidate Damages Assessment Because the Contractor Failed to Submit a Certified Claim for Time Extensions, MCKENNA LONG & ALDRIDGE LLP (July 6, 2010), http://www.mckennalong.com/publications-advisories-2345.html.92 Allison, supra note 90 (quoting attorney Kevin Cosgrove at Hunton & Williams LLP).93 See, e.g., Ralph C. Nash, Jr., Defense to a Government Claim is a Contractor Claim: A Weird Thought, 24 NASH & CIBINIC REP. ¶ 42, at 135 (Sep. 2010) (explaining Maropakis “flies in the face of the congressional purpose of providing contractors a fair procedure for resolving disputes”); Steven L. Schooner, Postscript: Defense to a Government Claim is a Contractor Claim, 26 NASH & CIBINIC REP. ¶ 6, at 18 (Feb. 2012) (“[I]t seems unduly formalistic and suggests that the majority were neither interested in protecting nor uniquely concerned about the interests of the Government contractor community.”). 94 See Sikorsky Aircraft Corp. v. United States, 102 Fed. Cl. 38, 47, 48 n.14 (2011) (discussing how application of Maropakis may create a “Hobson’s choice” for contractors and spending a 54-line footnote to distinguish its case from Maropakis); see also Nat’l Fruit Prod. Co. v. Dep’t of Agric., CBCA No. 2445, 12-1 BCA ¶ 34,979, at 171,932.
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government contracts community and in the forums below. The
receipt and consideration of briefs filed by government contracts
amici could have provided the opinion with this legitimacy.
2. Limited Responses to Amicus Submissions Creates Little to No Incentive for the Government Contracts Community to File Future Amicus Briefs
Although there are some cases in which the Federal Circuit
has addressed amici’s arguments,95 the court has also issued its
fair share of opinions that have failed to address filed amicus
briefs.96 For example, the 2000 Lockheed Martin Corp. v. United
States97 opinion did not mention any of the briefs that amici
filed in the appeal.98
Failing to mention amici’s arguments is not unique to the
Lockheed Martin case. The 2010 decision in ATK Thiokol, Inc. v.
United States99 is another example of this trend. The court
95 For instance, McDonnell Douglas Corp. v. United States had one amicus brief filed when it was before the Federal Circuit in 2009. See McDonnell Douglas Corp. v. United States, 567 F.3d 1340, 1342 (Fed. Cir. 2009). In that case, the Federal Circuit opinion, which Chief Judge Michel authored, considered the amicus position, citing its arguments several times. Id. at 1351, 1354.96 As discussed in note 7, only one precedential case during that time frame had an amicus brief filed (DirectTV Group, Inc. v. United States, 670 F.3d 1370 (Fed. Cir. 2012)); the per curiam opinion did not discuss the amicus brief. Although that case is not discussed in this Note, the discussion below generally applies to that case and amicus brief as well.97 210 F.3d 1366 (Fed. Cir. 2000).98 Id. at 1367-68. That case presented questions about taxes on government contractors, and although technically a tax-refund claim, it arose from a government contract and partially concerned the substance of the contract. Id. at 1368.99 598 F.3d 1329 (Fed. Cir. 2010).
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issued this decision four months after Chief Judge Michel urged
government contracts experts to file more amicus briefs at the
Federal Circuit.100 ATK Thiokol had two amicus briefs filed,101
neither of which the panel mentioned in its opinion.102
This lack of acknowledgement of an amici’s argument sends an
implicit message to the potential amicus brief filers — and to
the government contracts community as a whole — that the Federal
Circuit may not care about what amici have to say.103 Such an
implicit message serves as a deterrent for future filings.104
This deterrence is best illustrated when considering the cost of
an amicus brief. Amicus briefs cost clients between $10,000 and
$15,000,105 and may cost as much as $100,000.106 When there is no
guarantee that a judge will read the brief, prospective amicus
filers have little incentive to pay the legal fees.107 A lack of 100 Chief Judge Michel made his statements on Dec. 4, 2009. See Huffman, supra note 2, at 25. The court issued its opinion in ATK Thiokol on March 19, 2010. ATK Thiokol, 598 F.3d at 1329.101 ATK Thiokol, 598 F.3d at 1330.102 See ATK Thiokol, 598 F.3d 1329. 103 Such a failure to discuss or even mention an amicus argument suggests that the judge did not appreciate the argument made in the brief or that it has ended up in a “skip” pile. See Simard, supra note 13, at 688.104 See John Harrington, Note, Amici Curiae in the Federal Courts of Appeals: How Friendly Are They?, 55 CASE W. RES. L. REV. 667, 697 (2005) (arguing that if potential amici think a court is not likely to read a brief, they will not spend the time or money drafting one).105 See Gregory A. Caldeira & John R. Wright, Amici Curiae before the Supreme Court: Who Participates, When, and How Much?, 52 J. POL. 782, 800 (1990).106 Stephanie Francis Ward, Friends of the Court Are Friends of Mine, A.B.A. J., Nov. 2007, at 25. 107 See Harrington, supra note 103, at 697.
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acknowledgement may deter academics as well. Although academics
would not hire outside counsel to write their briefs, they must
justify their work to deans and other supervisors.108 Without
proof that the panels are reading their briefs, professors will
likely face pressure to use their hours on other projects or on
publication.109
B. Courts Generally Do Not Read Briefs with the Types of Arguments That Government Contracts Amici Have Presented to the Federal Circuit
Looking at the same issue from the Federal Circuit’s point
of view, it becomes apparent that neither of the judges who
authored the Lockheed Martin and ATK Thiokol opinions seems
completely averse to amicus briefs.110 Indeed, both of those
judges have acknowledged amici’s arguments in other cases.111
Thus, the fact that these judges did not mention the amicus
108 See Richard A. Posner, The State of Legal Scholarship Today: A Comment on Schlag, 97 GEO. L.J. 845, 854 (2009) (“The period to tenure has been lengthened to enable the law school to base its decision to grant tenure on a larger sample of a candidate's written work.”).109 See id.110 For example, the authoring judge of the Lockheed Martin opinion, Judge Lourie, has on multiple occasions referred to amicus briefs. See, e.g., Ass’n for Molecular Pathology v. U.S. Patent & Trademark Office, 689 F.3d 1303, 1330 (Fed. Cir. 2012) (“Contrary to the conclusions of the district court and the suggestions of Plaintiffs and some amici . . . ”); Marine Polymer Techs., Inc. v. HemCon, Inc., 672 F.3d 1350, 1361 n.6, n.7 (Fed. Cir. 2012) (noting which briefs supported which parties).111 See, e.g., Ass’n for Molecular Pathology, 689 F.3d at 1330; Marine Polymer Techs., 672 F.3d at 1361 n.6, n.7; Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 672, 678 (Fed. Cir. 2008); Wolfchild v. United States, 559 F.3d 1228, 1236-37 n.4 (Fed. Cir. 2009).
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briefs in the Lockheed Martin and ATK Thiokol opinions suggests
there may be something the government contracts amici could be
doing better.
In both cases, the amici did not frame the arguments in a
manner that suggested the briefs contained the kind of
information that judges say they want from amici.112 In the ATK
Thiokol case, the amici provided arguments that were comparable
to one of the parties’ arguments.113 Similarly, in Lockheed
Martin, the amicus briefs provided additional arguments to
112 In contrast, the briefs submitted in the cases noted in note 110 generally were framed as providing policy positions — even when grounded in the law. See, e.g., Brief for Nike, Inc. as Amicus Curiae Supporting Appellants at 1-2, Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2007) (No. 2006-1562), 2007 WL 3192566 (setting forth four arguments in an en banc rehearing: (1) the panel decision conflicts with its purpose in practice, (2) the panel decision conflicts with the court’s precedent, (3) the panel decision cannot be applied with consistency, and (4) the panel decision will create confusion in an already confusing analysis).113 Compare Brief for The Committee on Government Business of Financial Executives International as Amicus Curiae Supporting Appellee at 2-3, ATK Thiokol, Inc. v. United States, 598 F.3d 1329 (Fed. Cir. 2009) (No. 2009-5036), 2009 WL 2610094 (“The [G]overnment’s interpretation of ‘required in the performance of a contract’ ignores the regulatory system created by FAR Part 31 and [Cost Accounting Standards (CAS)] within which the definition operates. Instead, the [G]overnment argues the instant case from a strained interpretation of regulatory history and rejection of directly pertinent case precedent.”), with Brief of Appellee at 13, ATK Thiokol, Inc. v. United States, 598 F.3d 1329 (Fed. Cir. 2009) (No. 2009-5036), 2009 WL 2405124 (“The [G]overnment’s argument is wrong. It is the [G]overnment’s argument that runs contrary to the expansion of [Independent Research and Development (IR&D)]intended by Congress and the intent of the drafters of the CAS and FAR provisions relating to IR&D.”).
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support the basis of the contractor’s legal reasoning.114
However, these reiteration arguments are typically “of no value
to judges and will be disregarded.”115
Thus, framing the briefs as based on arguments similar to a
party’s argument suggested they provided information that was
nearly exactly what many judges have said they are not looking
for in amicus briefs.116 For judges who may make Ginsburg-like
piles117 of amicus briefs, this type of brief will likely be
skipped when the parties have adequate representation.
Therefore, regardless of whether these amici were correct in
their arguments,118 the Federal Circuit likely did not cite or
114 See Brief of Hughes Electronics Corp. & Raytheon Co. as Amicus Curiae Supporting Appellants, Lockheed Martin Corp. v. United States, 210 F.3d 1366 (Fed. Cir. 2000) (No. 99-5039), 1999 WL 34766254 (“For assuming [risks under fixed-price contracts], the express terms of the Internal Revenue Code (section 41) and the express decision of this Court (Fairchild Industries, Inc. v. United States, 71 F.3d 868 (Fed. Cir. 1995)) grant government contractors the research tax credit.”); Brief of the Chamber of Commerce of the United States of America as Amicus Curiae Supporting Appellant at 2, Lockheed Martin Corp. v. United States, 210 F.3d 1366 (Fed. Cir. 2000) (No. 99-5039), 1999 WL 33612592 (“Lockheed Martin is entitled to a tax credit for its qualified research expenditures under the contracts here in issue. Under the relevant provisions of these fixed-price development contracts, Lockheed Martin retained the rights to use and apply the results of its research.”).115 Walbolt & Lang, supra note 33, at 308.116 See id.; Lynch, supra note 24, at 42.117 See Simard, supra note 13, at 688. 118 And, indeed, the courts’ holdings suggest that they were correct in that the Federal Circuit held in the position that the amici supported. See ATK Thiokol, Inc. v. United States, 598 F.3d 1329 (Fed. Cir. 2010); Lockheed Martin Corp. v. United States, 210 F.3d 1366 (Fed. Cir. 2000).
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address these arguments because they were not framed as the type
of arguments that the judges wanted to hear.119
V. Winning to “Our” Way of Thinking: Trying to See Things from the Other’s Point of View
Both the Federal Circuit and the government contracts
community would benefit from adjustments to amicus brief filings
at the Federal Circuit. As mentioned above, courts have an
incentive to encourage strong amicus briefs because they want
their decisions to come out the “right” way.120
For the government contracts community, improving amicus
brief filings at the Federal Circuit is necessary due to the
court’s status as the apparent court-of-last-resort for
government contracts cases. Indeed, in government contracts
cases, the Federal Circuit is often a party’s last chance of
winning a case.121 Scholars have noted that “for all practical
purposes, the courts of appeals are the appellate courts of last
resort in the federal judicial system . . . .” 122 This is due to
119 An amicus brief’s summary of the argument section is of particular importance because it will typically determine how closely any amici’s arguments will be read. See Lynch, supra note 15, at 44 (explaining that when clerks screen amicus briefs for their justice, they rely on the summary of arguments, table of contents, and section headings). Using this information, the clerk “tells his justice not to read the briefs that just repeat arguments . . . .” Id. at 45.120 See Bennett, supra note 10, at 886.121 Terry Elaine Miller, The Federal Circuit-Year Three: Emerging from Infancy, 35 AM. U. L. REV. 1121, 1122 (1986).122 Collins & Martinek, supra note 12, at 128.
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“how few appeals are disposed of by the Supreme Court and how
many appeals are disposed of by the courts of appeals.”123
Viewing a circuit court as the court-of-last-resort is
particularly accurate when considering the Federal Circuit, which
has a unique set of appellate jurisdiction.124 Because the
Federal Circuit is the only appellate court hearing government
contract cases, there is never a circuit split on decisions,
which is a key signal to the Supreme Court that it should grant
certiorari.125 Indeed, over a 10-year span, the Federal Circuit
had only 30 cases reviewed by the Supreme Court.126 Thus, at a
court that has about 1,500 appeals terminated there annually, and
has an average of just 3 cases per year that are taken up by the
Supreme Court,127 it makes sense to consider the Federal Circuit
as the Supreme Court of government contracts for all practical
purposes.
Therefore, both the Federal Circuit and the government
contracts community should accept the Federal Circuit’s “Supreme
Court of Government Contracts” status and treat amicus briefs 123 Id.124 See Court Jurisdiction, supra note 4.125 David C. Thompson & Melanie F. Wachtell, An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call for Response and the Call for the Views of the Solicitor General, 16 GEO. MASON L. REV. 237, 267 (2009).126 Roy E. Hofer, Supreme Court Reversal Rates: Evaluating the Federal Courts of Appeals, LANDSLIDE, Jan.-Feb. 2010, at 9. There is, however, a sense that the Supreme Court has begun to increase the number of cases it is taking up from the Federal Circuit. See Smith, supra note 42, at 7.127 Hofer, supra note 125, at 9.
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there as such. In making this argument, this Note challenges
both the community and the Federal Circuit to make adjustments
and show that each side is willing to be a better “friend” for
the sake of the interests of government contracts law.
A. The Federal Circuit Should Address Briefs that Amici File and Use Federal Circuit Local Rule 29 to Ask for More Policy Related Briefs
If Federal Circuit judges want to improve the usefulness of
amicus briefs they see, there are at least two ways that they can
be proactive in that endeavor. First, Federal Circuit judges
should take advantage of Federal Circuit Local Rule 29 and ask
for amici to file briefs in government contracts cases.128 In
particular, when there is no binding precedent on an issue that
the court must address, the court should reach out to the
government contracts community.129 Even if the parties have not
characterized an issue as one of first impression, as occurred in
Maropakis,130 the Federal Circuit should treat it as one when
applicable. And because cases of first impression should be
fully considered in light of the law as well as the “downstream”
effects,131 such decisions should have amicus input.
The second way that the Federal Circuit could be more
proactive is by addressing arguments that amici present. Even if
128 See FED. CIR. R. 29.129 See supra Part IV.130 M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1331 (Fed. Cir. 2010).131 Huffman, supra note 2, at 27.
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a panel does not find amicus briefs particularly helpful in a
decision, the judges can improve future amicus brief submissions
by explaining why the amicus arguments were not useful. Simply
not addressing the arguments, as what happened in Lockheed
Martin132 and ATK Thiokol,133 creates a powerful deterrent for
potential government contracts amici in the future.134
B. The Government Contracts Community Must Provide Briefs that Address What the Court Wants to Hear, Not Just What the Amicus Wants to Say
Although the Federal Circuit may need to make adjustments to
its approach to amicus briefs, the government contracts community
may need to make adjustments as well. To do so, the community
must consider what types of arguments the court is looking to
hear from each type of amici.
The problem with considering the Lockheed Martin and the ATK
Thiokol cases is that in some ways, the community did consider
the Federal Circuit’s needs. These cases involved Cost
Accounting Standards and tax credits, which are areas of law that
are considered difficult issues, even within the government
contracts community.135 These are indeed the types of issues 132 Lockheed Martin Corp. v. United States, 210 F.3d 1366 (Fed. Cir. 2000).133 ATK Thiokol, Inc. v. United States, 598 F.3d 1329 (Fed. Cir. 2010).134 See supra Part IV.135 See Lynch, supra note 15, at 41 (discussing clerks’ desire to have amicus briefs in tax cases because of the complexity inherent in the law); Contract Cost Accounting, SHEPPARD MULLIN, http://www.sheppardmullin.com/practices-22.html (last visited Sept. 15, 2012) (“No aspect of [g]overnment contracting differs
31
where “amicus briefs [may be] most helpful” because they involve
“highly technical and specialized areas of law, as well as
complex statutory and regulatory cases.”136 Thus, what should be
noted is that this information is generally best received from
government entities or uninterested academics who file
independent amicus briefs on behalf of neither party but simply
to explain a difficult area of the law.137
If an amicus brief is not coming from a government entity or
an academic, arguments should be framed as providing mostly
policy information.138 Even if the amicus is truly advocating for
one party, the most effective way to do that is by providing
policy information and predictions.139 These are the “downstream”
impacts that the Federal Circuit appears to want to hear.140
VI. Conclusion
The potential of government contracts amicus briefs has not
been fully realized at the Federal Circuit. Former Chief Judge
Michel has noted that there is not the same amount of amicus
more materially from commercial norms than the cost accounting principles with which contractors must comply. The reimbursement of costs in connection with ‘flexibly-priced’ and cost-reimbursement [g]overnment contracts is subject to a startling array of extraordinarily complex rules, many of which are wholly inconsistent with customary commercial practice.”).136 See Lynch, supra note 15, at 41.137 See Simard, supra note 13, at 698.138 See Walbolt & Lang, supra note 33, at 277; see also Huffman, supra note 2, at 26; Smith, supra note 42, at 6.139 See, e.g., Flango et al., supra note 32, at 187; Smith, supra note 42, at 7.140 See Huffman, supra note 2, at 27.
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activity as in the court’s other areas of jurisdiction.141 The
limited amicus activity that has occurred, however, has received
mixed signals from the Federal Circuit. These mixed signals
deter the government contracts community from filing amicus
briefs. On the other hand, part of the cool reception may be
attributed to the types of arguments presented in the amicus
briefs, as these arguments have not necessarily been framed in
terms of what the court is looking for.
The solutions suggested in this Note challenge both the
government contracts community and the Federal Circuit to
endeavor to improve the use of amicus briefs. In encouraging
each to make some adjustments, these solutions acknowledge the
practical difficulties both sides face. But with these
adjustments, a better relationship between the court and the
community can “[b]egin in a friendly way.”142 The benefits of
such a relationship would not be limited to a single panel or
party; they would also provide a stronger foundation for
government contracts law.
141 Id. at 26.142 CARNEGIE REVISED, supra note 1, at 200.
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