How to Win Friends and Influence Government Contracts Law:1 Improving the Use of Amicus Briefs at the Federal Circuit

Jayna Marie Rust*257 14th St. SE, Unit AWashington, DC 20003jrust@law.gwu.edu

* Jayna Marie Rust (jrust@law.gwu.edu) 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 Jeri K. Somers, Timothy Sullivan, and Collin D. Swan for taking the time to read previous drafts and provide thoughtful advice.

1 Businessman Dale Carnegie first published How to Win Friends and Influence People in 1936. The Missouri-native’s book has sold more than 15 million copies since that time. 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.” See DALE CARNEGIE, HOW TO WIN FRIENDS AND INFLUENCE PEOPLE 112, 200, 249 (Revised ed. 1981). Mr. Carnegie’s advice provides the backdrop for much of this article’s suggestions and solutions.

Table of Contents

I. Brief Overview of the Role of Amicus Briefs in Appellate Litigation 4

A. Which Amicus Briefs Are Valuabe 5

1. Who the Helpful Amici Are 7

2. Particular Areas Where Amicus Briefs Provide the Most Assistance 9

B. Amicus Briefs That Courts Do Not Consider to Be Helpful10

II. Brief Overview of the Federal Circuit’s Approach to Amicus Briefs 12

A. Federal Rule of Appellate Procedure 29 and the Federal Circuit’s Local Rule 12

B. The Federal Circuit’s Commentary on Amicus Briefs 14

III. Forgetting What the Other Wants: Why the Use of Amicus Briefs Could Be Better 17

A. The Federal Circuit Sends Mixed Signals on Its Approach to Amicus Briefs, Which Ultimately Deters Amicus Participation 18

1. Local Rule 29 Has Not Been Utilized to Appeal to the Government Contracts Community 18

2. Limited Responses to Amicus Submissions Creates Little to No Incentives for the Government Contracts Community to File Future Amicus Briefs

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B. Courts Generally Do Not Read Briefs with the Types of Arguments That Government Contracts Amici Have Presented at the Federal Circuit 25

IV. Winning to “Our” Way of Thinking: Trying to See Things from the Other’s Point of View 28

A. The Federal Circuit Should Address Briefs That Amici File and Use Local Rule 29 to Ask for More Policy-Related Briefs 30

B. The Government Contracts Community Must Provide Briefs That Address What the Court Wants to Hear—Not Just What the Amicus Wants to Say 31

V. Conclusion 33

When addressing a government contracts group in December

2009, Paul Michel, then Chief Judge 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. [Nevertheless,] 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.”2

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.3 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 No. 2 NASH & CIBINIC REP. ¶ 7, at 26. 3 Court Jurisdiction, Court of Appeals for the Federal Circuit, 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,4 according to the former chief judge, the

government contracts community may be lagging behind the Federal

Circuit’s other legal communities in terms of submitting amicus

briefs.5

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.6 Such a lack of response begs the question: why not?

4 Government contracts cases make up only 5% of the appeals brought to the Federal Circuit. Appeals Filed, by Category FY 2011, Court of Appeals for the Federal Circuit, http://www.cafc.uscourts.gov/images/stories/the-court/statistics/Caseload_by_category_2011.pdf (last visited Sept. 16, 2012). 5 See Huffman, supra note 2, at 26.6 In the eight precedential Federal Circuit government contracts opinions issued between September 15, 2011 and September 15, 2012 had no amicus briefs filed. See Engage Learning, Inc., v. Salazar, 660 F.3d 1346, 1348 (Fed. Cir. 2011); Scott Timber Co. v. United States, --- F.3d ----, No. 2011-5092, slip op. at 1 (Fed. Cir. Sept. 5, 2012); Sys. Application & Techs., Inc. v. United States, --- F.3d ----, No. 2012-5004, slip op. at 1-2 (Fed. Cir. Aug. 24, 2012); DGR Assocs., Inc. v. United States, ---- F.3d ----, 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). 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, but both the Court of Federal Claims and the Federal Circuit found there was no implied-in-fact contract. See id. at 1368-69. The above cited cases exclude the seven spent nuclear fuel appeals decided at the Federal Circuit. Even of those seven cases, only one had an amicus brief filed. See Vermont Yankee Nuclear Power v. United States, 683 F.3d 1330, 1335 (Fed. Cir. 2012).

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This article will suggest 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 the other’s interests

but their own interests as well.

This article 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 article 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 article 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

provides a method for reaching out to amici,7 and it should fully

use it in government contracts cases. Furthermore, when amici

7 See Federal Circuit Local Rule 29.

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file briefs, the panels should provide some signals that its

judges considered the amici’s arguments.

Second, this article will argue 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.

I. 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 may file briefs that

state a unique viewpoint.8 These 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.”9

While sitting on the Third Circuit, then-Judge Samuel Alito

summarized exactly why amicus briefs may be helpful:

“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

8 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).9 Robert W. Bennett, Counter-Conversationalism and the Sense of Difficulty, 95 NW. U.L. REV. 845, 886 (2001).

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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.’”10

Acknowledging the potential benefits of amicus briefs, the

remainder of this Section 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,11 there are relevant

studies concerning the views of judges and justices on the

Supreme Court and appellate courts in general.12

Many judges and clerks agree that amicus briefs are helpful

when a party lacks quality representation.13 Nearly 80% of

circuit-court judges found that amici curiae were valuable when a

10 Neonatology Assocs., P.A. v. Commissioner of Internal Revenue, 293 F.3d 128, 132 (2002) (citing Luther T. Munford, When Does the Curiae Need an Amicus?, 1. J. APP. PRAC. & PROCESS 279 (1999)).11 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).12 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).13 See id. at 693.

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party is “inadequately represented.”14 At this point, the judge

and clerks may then resort to relying on amicus briefs to fill in

deficiencies.15

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

say they request amicus participation when they “perceive a need

for additional information.”16 This may occur when the judge

perceives that the parties do not have sufficient expertise in a

particular area.17

Regardless of whether a judge has received an amicus brief

of the amici’s own accord or whether the judge has sought the

brief, there are some briefs that courts consider more useful

than others. This Part will provide an overview of those types

of briefs.

1. Who the Helpful Amici Are

14 See id. This lack of representation may be 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. 33, 42 (2004).15 See id.16 Simard, supra note 12, at 687 (this is the previously mentioned study, and it included judicial responses from all circuits and at least one response from the Federal Circuit).17 See Andrew Frey, Amici Curiae: Friends of the Court or Nuisances?, 33 No. 1 LITIGATION 5, 6 (2006).

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Judges do not treat all “friends of the court” equally.

There appears to be two highly valuable amici that are applicable

to government contracts appeals at the Federal Circuit. First,

it is clear that government agencies’ amicus briefs tend to carry

the most weight in federal appellate courts.18 In fact, judges

on the federal courts of appeals “ranked the government as the

most helpful amicus curiae.”19

The reasons for favoring government amicus briefs are

numerous. Government briefs may provide expertise in helping

courts determine long-range impacts of a specific decision. 20

Considering other branches’ views helps courts bring legitimacy

to an opinion.21 And encouraging amicus participation can

facilitate later enforcement of a decision.22

Even within the sub-section 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

18 See, e.g., Simard, supra note 12, at 697 (“Amicus curiae briefs offered by governmental entities were favored at all levels of the federal bench”).19 See 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.20 Id.21 Id.22 Id. at 697-98.

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actual parties to the case.23 Briefs from government agencies

are not as favored as those from the Solicitor General, but they

are heeded some deference. 24 Amicus briefs from Congress are not

considered quite as highly as those from other government

entities.25

The second type of generally valuable amici is one with

particularized knowledge. 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.”26 The desire to infuse the decision-making

process with outside expertise reflects the awareness that judges

are often “generalists” who make decisions that affect technical

and specialized areas of law.27 Such a lack of specialization by

these decision-makers may also explain why 88% of former clerks

said they consider a brief authored by a prominent academic more

carefully than other briefs.28

23 See Lynch, supra note 14, at 46-47. These are given high consideration because of the perceived high level of research, reliability, and impartiality attributed to the briefs. Id. at 47.24 See id. at 49.25 See id.26 Frey, supra note 17, at 6.27 See Lynch, supra note 14, at 41.28 Id. at 52. See also Simard, supra note 12, 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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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. It

will further depend on the difficulty of the subject matter and

the type of argument that the amicus makes.

First, difficulty of the subject matter and novelty to the

court are relevant to a brief’s value. The majority of former

Supreme Court law clerks “explained that amicus briefs were most

helpful to them in cases involving highly technical and

specialized areas of law, as well as complex statutory and

regulatory cases.”29

Second, judges most favorably review amicus briefs that do

not focus on legal arguments.30 A survey of state appellate

judges found that nearly all respondents thought amicus briefs

assisted them in understanding policy considerations.31 One

state appellate judge has said that amicus briefs “need to be

more explanatory of the problems created by a particular

29 See Lynch, supra note 14, at 41. The areas of particular note to these former clerks are tax, patent, trademark, and Employment Retirement Income Security Act. Id.30 Legal arguments that present an argument missing from the parties’ briefs are, however, considered helpful. See Simard, supra note 12, at 690.31 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).

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resolution of a case and written to explain the ramifications of

a decision, rather than to advocate directly for that

position.”32 He also described the need for amicus briefs to

detail the “ripple effects” of a possible decision.33 Former

Chief Judge Michel’s call for briefs that would assist the court

in seeing the “downstream” impacts of their decisions echoes the

same sentiments as the state judges’ comments.34 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.35 Thus, it is

no doubt that “the most useful information was frequently factual

and non-legal in nature.”36

B. Amicus Briefs That Courts Do Not Consider to Be Helpful

Many appellate judges agree that restating a party’s

argument is generally not helpful.37 “‘[M]e too’ briefs, briefs

that are too one-sided, or briefs that belabor the positions of

32 Sylvia H. Walbolt & Joseph H. Lang, Jr., Amicus Briefs: Friend or Foe of Florida Courts?, 32 STETSON L. REV. 269, 277 (2003) (quoting Florida Justice Charles T. Wells).33 Id.34 See Huffman, supra note 2, at 26.35 One scholar noted clerks have said “There are no better experts in strict legal analysis [than Supreme Court justices].” Lynch, supra note 23, at 42.36 See id. But see Walbolt & Lang, supra note 32, at 308 (“Judges generally will welcome briefs that present an important perspective or legal argument that otherwise might be overlooked by the main litigants . . . ”).

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parties whose positions are already well represented, are of no

value to judges and will be disregarded.”38 These may be

considered an “echo” of a party’s argument and will thus not

receive any attention.39 Although there is some evidence that

federal appellate-level judges may actually appreciate these

arguments,40 it does not appear that this is true for the Federal

Circuit.41

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: ones with “statistics and

37 See Walbolt & Lang, supra note 32, at 308; Lynch, supra note 14, at 43, 45; Simard, supra note 12, at 694-95. 38 Walbolt, supra note 32, at 308.39 Id. at 277.40 Simard, supra note 12, at 694-95.41 See, e.g., Huffman, supra note 2, at 26 (explaining that former Chief Judge Michel has requested amicus briefs that look at practical aspects in the marketplace).42 See S. Lloyd Smith, An Interview with Chief Judge Randall R. Rader, LANDSLIDE, March/Apr. 2011, at 5, 6-7. Although 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.43 Id. at 6.

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insights into how the court’s cases would have some impact

downstream in the marketplace.”44

II. 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

section 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.45 In general, FRAP 29 guides federal courts of

appeals and their parties on how to approach amicus briefs.46 It

explains (1) when amicus briefs are permitted; (2) required

motions for leave to file the briefs; (3) the contents and form

of an amicus brief; (4) permissible length of amicus briefs; (5)

the time for filing them; (6) the general bar on amici submitting

reply briefs; and (7) the general bar on amici participating in

44 Id. at 7.45 See Federal Rule of Appellate Procedure 29.46 See id.

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oral arguments.47 Like the other courts of appeals, the Federal

Circuit follows Rule 29, but it has also supplemented the FRAP

with its own local rule.48 That additional rule suggests it may

be more proactive about securing amicus briefs than other

circuits.49 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 1.50

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

brief would cause recusal of a judge,51 filing of briefs when a

47 Id.48 See Federal Circuit Local Rule 29.49 See Ruben J. Garcia, A Democratic Theory of Amicus Advocacy, 35 FLA. ST. U.L. REV. 315, 323 (2008) (“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.”).50 Federal Circuit Local Rule 29(b).51 Second Circuit Local Rule 29.1(a), Fifth Circuit Rule 29.4; Ninth Circuit Advisory Committee Note to Rule 29-2; D.C. Circuit Rule 29(b).

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rehearing has been ordered,52 word limits,53 making a motion to

file them,54 and filing of a letter in lieu of a brief.55

The list that Federal Circuit Local Rule 29 refers to,

however, is minimal. The current list has but eight associations

and organizations on it.56 None of these are solely dedicated to

government contracts practice.57 And 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.58 The five remaining groups are intellectual-property

associations/organizations, and one is the National Organization

of Veterans’ Advocates.59

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

52 Third Circuit Local Appellate Rule 29.1(a), Ninth Circuit Advisory Committee Note to Rule 29-2; Tenth Circuit Rule 29.53 Third Circuit Local Appellate Rule 29.1(a)54 Fifth Circuit Rule 29.155 Ninth Circuit Advisory Committee Note to Rule 29-1.56 See 2012 Active Amicus Curiae Briefs (on file with the author).57 See id.58 Id. 59 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, beyond the court instituting the Local Rule 29 list,

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.

The first approach—preventing the filing of amicus briefs at

the appellate level—is the minority approach.60 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. 61 These circumstances are: (1) “in a case

in which a party is inadequately represented;” (2) “in which the

would-be amicus has a direct interest in another case that may be

materially affected by a decision in this case;” or (3) “in which

the amicus has a unique perspective or specific information that

can assist the court beyond what the parties can provide.”62

Under the second approach, some judges have stated that they

do not try to prevent amicus filings but that they simply do not

read every brief filed. For instance, 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

60 See Frey, supra note 17, at 5 (citing In re Heath, 331 B.R. 424, 430 n.4 (B.A.P. 9th Cir. 2005)). 61 Voices for Choices v. Ill. Bell Tel. Co., 339 F.3d 542, 545 (7th Cir. 2003).62 Id.

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them.”63 Her comment should, 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 briefs to skip,

which to skim, and which to read in full.64 Furthermore, looking

at Justice Ginsburg’s opinions, it is clear that she and her

staff do read some briefs; for instance her Maples v. Thomas

opinion, announced in 2012, cited multiple amicus briefs.65

Going beyond the Ginsburg-type approach, the third approach

includes judges who not only appear to read amicus briefs but

have openly stated that they find them particularly useful.66

For instance, former Chief Judge Michel, stated “that amicus

briefs were very important in helping the court to determine

whether to take a particular case en banc.”67 The current Chief

Judge has recognized that there are some practical difficulties

63 Miriam Rozen, U.S. Supreme Court Justice Ruth Bader Ginsburg — and one-time Oklahoma resident — shares thoughts on what she reads and what she doesn’t, TEXAS LAWYER BLOG (Aug. 30, 2011), 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.64 See Simard, supra note 12, at 688. Justice Ginsburg’s statement and actions reflect the earlier discussion on judges’ varying treatment of amicus briefs. See supra I.65 See Maples v. Thomas, --- U.S. ----, No. 10-63, slip op. at 3, 17 (Jan. 18, 2012).66 Justice Alito’s comments in Neonatology Assocs., P.A. v. Commissioner of Internal Revenue, 293 F.3d 128 (2002) suggest that he may be in this camp. See, supra I.67 See Huffman, supra note 2, at 27.

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in filing amicus briefs,68 but he also has encouraged their

submission when possible.69

III. FORGETTING WHAT THE OTHER WANTS: WHY THE USE OF AMICUS BRIEFS COULD BE BETTER

If Federal Circuit Local Rule 29 and its 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 will explain the issues in government

contracts amicus-brief filings at the Federal Circuit. It will

also suggest that when amici file briefs, both the court and the

amici may be more concerned with their own needs than the others’

needs. Nevertheless, each side could actually reap benefits from

considering the others’ situation.

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 “Yes, I like amicus briefs.”).70 See Huffman, supra note 2, at 26; Smith, supra note 42, at 6.71 See supra n. 6.72 See Huffman, supra note 2, at 26.

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A. The Federal Circuit Sends Mixed Signals on Its Approach to Amicus Briefs, Which Ultimately Deters Amici Participation

Despite the fact that the Federal Circuit’s leadership has

stated they find amicus briefs useful, this claim has not

necessarily been reflected in all of the court’s opinions.73

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.75

1. Local Rule 29 Has Not Been Utilized to Appeal to the Government Contracts Community

There is no evidence that there have been any calls to the

government contracts community made through the Local Rule 29

list.76 Nevertheless, there are areas where it could be used

easily.

Indeed, the government contracts community’s response to

some cases suggests at least one area where such calls may be

particularly useful: when deciding a case that appears to have no

grounding in binding precedent. Why such outreach is necessary

can be illustrated by the Maropakis decision77 and the government

contracts community’s subsequent reactions.

73 The remainder of this Section will analyze these actions.74 See, e.g., Smith, supra note 42, at 6.75 See infra III.A.2.76 The Court of Appeals for the Federal Circuit clerk was unable to provide this information.77 See M. Maropakis Carpentry v. United States, 609 F.3d 1323 (Fed Cir. 2010).

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In this 2010 case, a contractor sought to prove that

jurisdiction over its suit existed at the Court of Federal

Claims.78 M. Maropakis Carpentry, Inc. (“Maropakis”) had held a

contract for replacing windows and a roof on a Navy building.79

There were issues in completing the performance of the contract,

and Maropakis brought suit at the Court of Federal Claims.80

Maropakis claimed that it was entitled to time extensions and

thus a remittance of the liquated damages that the Government had

assessed and withheld.81 The Government then brought a

counterclaim for the balance of its liquidated damages

assessment.82

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”) claim requirements.83

On its appeal to the Federal Circuit, Maropakis argued that the

decision below wrongly prohibited the court from considering its

78 See id. at 1327.79 Id. at 1325.80 See id. at 1326.81 Id.82 Id.83 See M. Maropakis Carpentry 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. 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 52.233-1(c).

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defense to the Government’s claim.84 Essentially, it 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.85 Thus, the appeal 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.86

A 2-1 majority of the Federal Circuit panel found that the

contractor had not brought a valid CDA claim.87 In addressing

the contractor’s new argument, the Federal Circuit did not rely

on any binding precedent. Instead it relied on decades-old

decisions of the Claims Court.88 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.89

The precedential Maropakis decision has created more than a

“ripple effect;”90 by some accounts it has created full-fledged

84 See M. Maropakis Carpentry v. United States, 609 F.3d at 1331.85 See id. at 1329-30.86 See generally, id.87 See id. at 1332.88 See id. at 133189 See id. at 1330-31.90 As mentioned above, “ripple effects” often concern judges. See Walbolt & Lang, supra note 32, at 277 (quoting Florida Justice Charles T. Wells).

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waves.91 In response to the opinion, many government contracts

law firms and practice groups have issued “client alerts” or

their equivalent.92 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.”93 Furthermore, prominent

government contracts academics have published criticisms of the

opinion.94 There has also been pushback from both of the

91 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, http://www.wileyrein.com/publications.cfm?sp=articles&newsletter=3&id=6266 (last visited May 3, 2012); Jocelyn Allison, Fed. Circ. Puts Contractors on Offense in Maropakis, LAW360, http://www.law360.com/articles/189380 (last visited May 3, 2012).92 See e.g., Sacilotto, supra note 91; McKenna Long & Aldridge LLP, 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, http://www.mckennalong.com/publications-advisories-2345.html (last visited July 15, 2012).93 Allison, supra note 91 (quoting attorney Kevin Cosgrove).94 See, e.g., Ralph C. Nash, 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 (Feb. 2012) (“it seems unduly formalistic and suggests that the majority were neither interested in protecting nor uniquely concerned about the interests of the Government contractor community”).

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government contracts claims-disputes forums below the Federal

Circuit.95

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 use more legitimacy within the government

contracts community (and even the forums below the court).

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,96 the court has also issued its

fair share of opinions that have failed to address filed amicus

briefs. For instance, a 2000 Lockheed Martin opinion97 did not

mention any of the briefs that amici filed in the appeal.98

95 See Sikorsky Aircraft Corp. v. United States, 102 Fed. Cl. 38, 47, 48 (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, Inc. v. Dep’t of Agric., CBCA No. 2445, 12-1 BCA ¶ 34,979 at 171,932.96 For instance, the McDonnell Douglas Corp. A-12 case 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 (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, 1354.97 Lockheed Martin Corp. v. United States, 210 F.3d 1366 (Fed. Cir. 2000).98 See id. at 1367-68 (Fed. Cir. 2000). That case presented questions about taxes on government contractors, and although technically a tax-refund claim, it arose from a government

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Failing to mention amici’s arguments is not unique to the

Lockheed Martin case. The 2010 ATK Thiokol99 case is but one

more example of this. Four months after Chief Judge Michel urged

government contracts experts to file more amicus briefs at the

Federal Circuit, the court issued this decision.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 has

impacts beyond the current opinion. It sends an implicit message

to the filers—and to the government contracts community as a

whole—that the court may not care about what it has to say.103

This implicit message serves as a deterrent for future filings.104

This deterrence is best illustrated when considering the

cost of an amicus briefs. Amicus briefs cost clients between

contract and partially concerned the substance of the contract.99 ATK Thiokol, Inc. v. United States, 598 F.3d 1329 (Fed. Cir. 2010).100 Chief Judge Michel made his statements on Dec. 4, 2009. See Huffman, supra note 2. The court issued this opinion on March 19, 2010. ATK Thiokol, 598 F.3d at 1329.101 Id. at 1330.102 See generally id. 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 12, 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).

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$10,000-15,000105 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 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 at 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

105 See Gregory A. Caldeira & John R. Wright, Amici Curiae before the Supreme Court: Who Participates, When, and How Much?, 52 J. POL. 782, 804 (1990).106 Stephanie Francis Ward, Friends of the Court Are Friends of Mine, ABA Journal, http://www.abajournal.com/magazine/article/friends_of_the_court_are_friends_of_mine/ (Nov. 2007).107 See Harrington, supra note 104, at 697.108 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 Id.

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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

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

110 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. United States, --- F.3d ----, No. 2010-1406, slip op. at 49 (Fed. Cir. Aug. 16 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 (2012) (noting which briefs supported which parties).111 See, e.g., Ass’n for Molecular Pathology, --- F.3d ----, No. 2010-1406, slip op. at 49 (Fed. Cir.); Marine Polymer Techs., 672 F.3d at 1361; Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 672, 678 (2008); Wolfchild v. United States, 559 F.3d 1228, 1236-37 n. 4 (2009).112 Conversely, the briefs submitted in the cases noted in n. 111 generally were framed as providing policy positions—even when grounded in the law. See, e.g., Brief for Nike, Inc. as Amicus Curiae Submitted with Leave of the Court at 1-2, Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (2007) (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 precedence; (3) the panel decision cannot be applied with consistency; and (4) the panel decision will create confusion in an already confusing analysis).

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to one party’s arguments.113 Similarly, in Lockheed Martin, the

amicus briefs provided additional arguments to support the basis

of the contractor’s legal reasoning.114 These reiteration

arguments are the type that “are of no value to judges and will

be disregarded.”115

Thus, framing the briefs as based on arguments similar to

the appellee’s argument suggested they provided information that

was nearly exactly what many judges have said they are not

113 For instance, 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 (2009) (No. 2009-5036), 2009 WL 2610094 (“The government’s interpretation of ‘required in the performance of a contract’ ignores the regulatory system created by FAR Part 31 and CAS within which the definition operates. Instead, the government argues the instant case from a strained interpretation of regulatory history and rejection of directly pertinent case precedent.”), with Brief of Plaintiff-Appellee at 13, ATK Thiokol, Inc. v. United States, 598 F.3d 1329 (2009) (No. 2009-5036), 2009 WL 2405124 (“The government’s argument is wrong. It is the government’s argument that runs contrary to the expansion of IR&D intended by Congress and the intent of the drafters of the CAS and FAR provisions relating to IR&D.”). 114 See Brief of Hughes Electronics Corp. & Raytheon Co. as Amicus Curiae, Lockheed Martin Corp. v. United States, 210 F.3d 1366 (2000) (No. 99-5039) 1999 WL 34766254 (“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 (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 See Walbolt & Lang, supra note 32, at 308.

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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.

Regardless of whether these amici were correct in their

arguments,118 the court likely did not cite or address these

arguments because they were not framed as the type of arguments

that the Federal Circuit judges want to hear.119

IV. 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.120 They want to come

out the “right” way.

116 See id.; Lynch, supra note 23, at 42.117 See Simard, supra note 12, at 688. 118 And, indeed, the courts’ holdings suggests they were correct when they held in the position that the amici supported. See generally 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).119 See, e.g., Flango et al, supra note 31, at 187. The summary of the argument is highlighted here because it is one of the most important parts of any amicus brief and typically determine how closely any amicus’ arguments will be read. See Lynch, supra note 14, at 44, 45 (explaining that when clerks screen amicus briefs for their judge, 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 9, at 886.

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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.121 Indeed, in government contracts

cases, the Federal Circuit is often a party’s last chance of

winning a case. 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

“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 these 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

121 Collins & Martinek, supra note 11, at 128 (explaining that most appeals end at the circuit-court level).122 Id.123 Id.124 See Court Jurisdiction, supra note 3.125 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).

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cases reviewed by the Supreme Court.126 Thus, at a court that has

about 1,500 appeals terminated there annually,127 and has an

average of just 3 cases per year that are taken up by the Supreme

Court, 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 must accept the Federal Circuit’s “Supreme

Court of Government Contracts” status and treat amicus briefs

there as such. In arguing this, the article will challenge both

the community and the court to make adjustments and show that

each side is willing to be a better “friend” in order to best

influence government contracts law.

A. The Federal Circuit Should Address Briefs That Amici File and Use 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 Local Rule 29 and ask for amici to file

briefs in government contracts cases. In particular, when there

is no binding precedent on an issue that the court must address,

126 Roy E. Hofer, Supreme Court Reversal Rates: Evaluating the Federal Courts of Appeals, LANDSLIDE, January/February 2010, at 8, 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 126, at 9.

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the court should reach out to the government contracts community.

Even if the parties have not characterized the issue as one of

first impression—as occurred in Maropakis—a Supreme Court of

Government Contracts must treat it as one. And because cases of

first impression should be fully considered in light of the law

as well as the “downstream” effects, 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

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

Martin128 and AKT Thiokol129—creates a powerful deterrent for

potential government contracts amici in the future.130

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 can make adjustments to its

approach to amicus briefs, the government contracts community can

make adjustments as well. To do so, the community must consider

128 Lockheed Martin Corp. v. United States, 210 F.3d 1366 (Fed. Cir. 2000).129 ATK Thiokol, Inc. v. United States, 598 F.3d 1329 (Fed. Cir. 2010).130 See supra III.B.

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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 court’s needs. Cost Accounting Standards and tax credits are

difficult issues, even within the government contracts

community.131 These are indeed the types of issues 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.”132 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.133

If the brief is not coming from a government entity or an

academic, arguments should be framed as providing mostly policy

131 See Contract Cost Accounting, SHEPPARD MULLIN, http://www.sheppardmullin.com/practices-22.html (last visited Sept. 16, 2012) (“No aspect of Government contracting differs 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 Government contracts is subject to a startling array of extraordinarily complex rules, many of which are wholly inconsistent with customary commercial practice.)”; see also Lynch, supra note 14, at 41 (discussing clerks’ desire to have amicus briefs in tax cases because of the complexity inhere in the law).132 See Lynch, supra note 14, at 41.133 See Simard, supra note 12, at 698.

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information.134 Even if the amicus is truly advocating for one

party, the most effective way to do that is by providing policy

information and predictions.135 These are the “downstream”

impacts that the Federal Circuit appears to want to hear.136

V. 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

activity as in the court’s other areas of jurisdiction. 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; these arguments have not necessarily been framed in terms

of what the court is looking for.

The solutions suggested in this article 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

134 See Walbolt & Lang, supra note 32, at 277; see also Huffman, supra note 2, at 26; Smith, supra note 42, at 6.135 See, e.g., Flango et al, supra note 31, at 187; Smith, supra note 42, at 7.136 See Huffman, supra note 2, at 26.

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practical difficulties both sides faces. But with these

adjustments, a better relationship between the court and the

community can “begin in a friendly way.”137 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.

137 Carnegie, supra note 1 at 200.

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