THE COURT OF APPEALS FOR THE
FEDERAL CIRCUIT: CHALLENGE AND
OPPORTUNITY
THE HONORABLE HOWARD T.
MARKEY*
" Creation of the United States Court of Appeals for the Federal
Circuit presents a particular challenge and a special opportunity.
The result of congressional pioneering in the field of court structuring, the court is being and should be watched, by the Congress, the
bar, the judiciary, and academe. The election of the American University Law Review to devote a section to decisions of the court is
therefore most welcome. No less welcome is the Editorial Board's
invitation to supply this short introductory article about the court
itself.
The challenge to the court and its bar is to create and maintain a
uniform, reliable, predictable, nationally-applicable body of law in
each of the many and varied fields of substantive law assigned exclusively to the court.' The opportunity presented the judges and staff
of the court is that of making lasting contributions to the administration of justice. All courts face similar challenges and opportunities,
but the unique mission of the Court of Appeals for the Federal Circuit makes the challenge particular and the opportunity special.
Not all of the elements that Congress considered in forming the
new court were new. Creation of a court by merging two existing
courts, and thus at virtually no cost to the taxpayers, was a first, but
* ChiefJudge, The United States Court of Appeals for the Federal Circuit.
1. The United States Court of Appeals for the Federal Circuit has exclusive jurisdiction
to hear appeals of the following decisions: (1) § 1338 patent decisions; (2) claims against the
United States government for less than $10,000 ("Little Tucker Act" cases); (3) final decisions
of the U.S. Claims Court; (4) administrative decisions concerning patents and trademarks; (5)
final decisions of the U.S. Court of International Trade; (6) final determinations of the U.S.
International Trade Commission concerning unfair trade practices; (7) Secretary of Commerce determinations of law relating to certain Tariff Schedules; (8) appeals under § 71 of the
Plant Variety Protection Act, 7 U.S.C. § 2461 (1982); (9) final orders or decisions of the Merit
Systems Protection Board, pursuant to 5 U.S.C. §§ 7703 (b)(1), (d) (1982); (10) final decisions
of an agency board of contract appeals pursuant to 41 U.S.C. 607(g)(1), 28 U.S.C. § 1295(a)
(1982). For a description of where the Court of Appeals for the Federal Circuit fits within the
U.S. judicial system, see Chart 1, attached as an appendix to this article.
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THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 34:595
assignment of the new court's geographic jurisdiction was not. Its
predecessor courts, the Court of Claims and the Court of Customs
and Patent Appeals, had existed as courts of appeals with nationwide geographic jurisdiction for 1302 and 763 years respectively
when they were replaced on October 1, 1982 by the Court of Appeals for the Federal Circuit. 4 What was totally new, pioneering, and
especially challenging was Congress' assignment to the new court of
jurisdiction to hear appeals from judgments of all district courts in
the land in the field of patent law 5 and of claims against the government for under $10,0006 ("Little Tucker Act" cases). Though there
is much more involved, that historical fact captured and retains a
major portion of the interest in the court.
The concept of and need for establishing national uniformity in
certain fields of law was not new. The predecessor courts had long
been doing that in the fields assigned to them. The need in the field
of patent law had also been long recognized. On June 10, 1887 Justice Harlan suggested creation of a "national court of last resort" to
hear patent appeals in patent cases from all lower courts and the
Patent Office. The concept surfaced periodically throughout the ensuing ninety-eight years, 7 finding its implementation in the Federal
Courts Improvement Act of 1982.8
Though the need for national uniformity in patent law served as
2.
See Act of Feb. 24, 1855, ch. 122, 10 Stat. 612, 612 (establishing "Court for the
Investigation of Claims against the United States"). See generally W. CowEN, P. NICHOLS,JR. &
M.T. BENNETr, THE UNITED STATES COURT OF CLAIMS: A HISTORY, PART 11-ORIGIN-DEVELOPMENT-JURISDICTION, 1855-1978 (1978).
3. See Act of Aug. 5, 1909, ch. 6, 36 Stat. 11,105 (establishing Court of Customs
Appeals).
4. See Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, 96 Stat. 25 (codified in scattered sections of 2, 5, 7, 10, 15, 16, 18, 19, 22, 25, 26, 28, 30, 31, 33, 35, 40, 41, 42,
44, & 50 app. U.S.C.) (merging Court of Claims with Court of Customs and Patent Appeals to
create Court of Appeals for the Federal Circuit). See generally Sward & Page, The FederalCourts
Improvement Act: A Practitioner's Perspective, 33 Am. U.L. REV. 385, 387-89 (1984) (discussing
purpose and scope of Federal Courts Improvement Act).
5. See 28 U.S.C. § 1295 (a)(1) (1982).
6. Id § 1295 (a)(2).
7. The debate over the creation of a new appellate court coalesced in the 1970's with
the publication of several proposals for the creation of a new court. See, e.g., OFFICE FOR IMPROVEMENTS IN THE ADMINISTRATION OF JUSTICE,
U.S.
PROVE THE FEDERAL APPELLATE SYSTEM (JULY 21,
DEP'T OF JUSTICE,
1978)
A
PROPOSAL TO IM-
(DRAFT REPORT); COMMISSION
ON
REVISION OF THE FEDERAL COURT APPELLATE SYSTEM, STRUCTURE AND INTERNAL PROCEDURES:
RECOMMENDATIONS FOR CHANGE, 67 F.R.D. 195 (1975) (the "Hruska Report"); Leventhal, A
Modest Proposalfora Multi-Circuit Court of Appeals, 24 AM. U.L. REV. 881 (1975); FEDERALJUDICIAL CENTER, REPORT OF THE STUDY GROUP ON THE CASELOAD OF THE SUPREME COURT, 57
F.R.D. 573 (1972) (the "Freund Report"). For a discussion of these proposals and the role
they played in the creation of the Court of Appeals for the Federal Circuit, see Petrowitz,
Federal Court Reform: The Federal Courts Improvement Act of 1982-And Beyond, 32 AM. U.L. REV.
543 (1983).
8. Pub. L. No. 97-164, 96 Stat. 25 (codified in scattered sections of 2, 5, 7, 10, 15, 16,
18, 19, 22, 26, 28, 30, 31, 35, 40, 41, 42, 44, & 50 app. U.S.C.).
1985]
THE COURT OF APPEALS FOR THE FEDERAL CIRCUIT
597
an impetus, Congress recognized that the need was not limited to
that one field of law. In designing the substantive jurisdiction of the
new court, it transferred intact the jurisdiction over claims against
the government, 9 international trade,10 and appeals from the Patent
and Trademark Office" that had been previously exercised substantially exclusively by the predecessor courts. Congress then added
jurisdiction not only over appeals from district courts in patent 12
and Little Tucker Act cases,' but over appeals from the Merit Systems Protection Board 14 and the agency boards of contract appeals.' 5 Indeed, the court hears appeals from a massive universe of
116 tribunals on which sit 885 decision-makers.
Thus there is no warrant for referring to the court as "the patent
court." On the contrary, patent appeals during the court's first two
years have constituted less than one-third of the total filed. 6 Technology and complexity are features of patent cases but those elements are often present in other types of cases as well.
In meeting the challenge of its mission, the court is blessed with
outstanding talent in its most important asset-its people. The
court's twelve judgeships (seven from the Court of Claims, five from
the Court of Customs and Patent Appeals) are occupied by judges
from all parts of the land who have backgrounds of differing experiences and who have brought a total of more than 250 years ofjudicial experience to the court) 7 The Clerk of the court, a lawyer, had
earned a superb reputation as Clerk of the Court of Customs and
Patent Appeals for eighteen years.' 8 The court staff of thirty is com9. 28 U.S.C. § 1295 (a)(2) (1982).
10. Id. § 1295 (a)(5)-(6).
11. Id. § 1295 (a)(4).
12. Id. § 1295 (a)(1).
13. Id. § 1295 (a)(2).
14. Id. § 1295 (a)(9).
15. Id- § 1295 (a)(10). For a general discussion of the jurisdiction of the Court of Appeals for the Federal Circuit, see Sward & Page, supra note 4, at 389-91.
16. Between October 1, 1982 and May 13, 1983, there were 121 appeals fromjudgments
of district courts in patent cases docketed in the Court of Appeals for the Federal Circuit. See
The First Annual Judicial Conference of the United States Court of Appeals for the Federal
Circuit, May 20, 1983, 100 F.R.D. 499, 501 (1983). During that same period, the total
number of appeals docketed was 500. Id.
17. Thejudges currently sitting on the Court of Appeals for the Federal Circuit include:
The Honorable Howard T. Markey, ChiefJudge; The Honorable Daniel M. Friedman; The
Honorable Giles S. Rich; The Honorable Oscar H. Davis; The Honorable Phillip B. Baldwin;
The Honorable Shiro Kashiwa; The Honorable Marion T. Bennett; The Honorable Jack R.
Miller; The Honorable Edward S. Smith; The Honorable Helen W. Nies; The Honorable Pauline Newman; The Honorable Jean Galloway Bissell; The Honorable Don N. Laramore, Senior Judge; The Honorable J. Lindsay Almond, Jr., Senior Judge; The Honorable Byron G.
Skelton, SeniorJudge; The Honorable Wilson Cowen, SeniorJudge; The Honorable Philip
Nichols, Jr., Senior Judge.
18. The current Clerk of the Court of Appeals for the Federal Circuit is George E.
Hutchinson.
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THE AMERICAN UNIVERSITY LAW REVIEW
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prised of individuals who, with few recent exceptions, have long
records of dedicated and excellent service to one or the other of the
predecessor courts. Those individuals serve in the offices of the
Clerk, the Senior Technical Assistant, the Motions Staff Attorney,
and the Director of Administrative Services. Each judge's staff consists of an experienced secretary and two law clerks. It is for each to
decide, but most judges have required at least one clerk, and some
have required both, to have a scientific degree.
Frequently, panels of the court sit in cities other than Washington, D.C. Panels -of the court have thus far sat twice in California
and once each in Illinois and Alabama.1 9 This spring panels will sit
in California, Colorado, and Louisiana.
On the day it began operation, the court adopted its pre-prepared
Rules, its Procedural Handbook, and a complete set of internal
Standard Operating Procedures governing every function involved
in accomplishing the court's mission. The court's rules are the Federal Rules of Appellate Procedure with only those modifications
mandated by its mission.
The court supplies an opinion in every case, enabling losing counsel to know why he or she did not prevail. It does not, because it
cannot without wasteful and useless delay, publish every opinion in
one of the recognized reporters. Its "unpublished" opinions are
public records available to anyone. Because most are merely short
statements of reasons, however, they are of little interest to anyone
other than the parties. The procedure is loaded in favor of publication in that a panel's election not to publish must be unanimous
and the rules permit motions for publication of an unpublished
20
opinion.
There are numerous similarities of the Court of Appeals for the
Federal Circuit with the twelve regional courts of appeal. Continuously confronting a confluence of science and law in many of its
cases, and dealing daily with international trade and government
contract cases important to business, the court is nonetheless no
more "specialized" than are the other federal courts of appeals, the
specific substantive jurisdiction of which is equally limited to that
Congress has assigned. Beyond the many and differing areas of substantive law within its exclusive jurisdiction, the court, like all courts,
is presented in numerous appeals with procedural and due process
19. The United States Court of Appeals for the Federal Circuit is required to determine
the time and place of its sessions "with aview to securing reasonable opportunity to citizens
to appear before the court with as little inconvenience and expense to citizens as possible." 28
U.S.C. § 48(d) (1982).
20. U.S. COURT OF APPEALS FOR THE FED. CIR. RULE 18.
1985]
THE COURT OF APPEALS FOR THE FEDERAL CIRCUIT
599
issues, with a need for statutory interpretation, with constitutional
questions, and with substantive law issues that accompany an issue
within the court's exclusive jurisdiction. The court, like all courts, is
guided by decisions of the Supreme Court. Represented on the Judicial Conference of the United States, the court and its judges, like
all other Article III courts and judges, have input to and apply the
policy guidance of that Conference. Judges of the new court have
sat over many years in many hundreds of cases with all of the regional courts of appeal. As indicated above, the new court and the
regional appellate courts operate under essentially the same Federal
Rules of Appellate Procedure. Over 1400 lawyers and judges attend
the new court's annual judicial conference.
There are, on the other hand, clear differences from the regional
courts of appeals. A particular challenge lies in the difference between the exclusivity of the new court's substantive jurisdiction and
the shared substantive jurisdiction of the regional circuits. The new
court must reach its decisions in its exclusive areas with a care occasioned by its inability to look to other courts for differing views. The
new court, unlike the regional courts, has no administrative responsibility for the trial courts (Court of International Trade, Claims
Court, district courts) from whose judgments appeals are taken to
the new court. The new court has no Circuit Executive and no Circuit Council formed of trial and appellate judges. Though the new
court and the regional courts all hear appeals from decisions of numerous administrative agencies, the agencies are different and many
appeals to the new court from agencies (International Trade Commission, Boards of the Patent Trademark Office, Boards of Contract
Appeals, Secretaries of Commerce and Agriculture) are governed by
particular statutes, rather than by the Administrative Procedure
21
Act.
It may be early to say how the court is doing, but the magnificent
and magnanimous collegial cooperation of the judges in its first two
years enabled the court to hold to an average interval of seven
months from filing of the appeal to the decision, and to do so without diminution in the quality of the court's work and in the face of a
continuously rising rate of filing. Lawyers have five months after filing to get the case ready for hearing. Thus far the court has heard
21. See, e.g., 7 U.S.C. § 2461 (1982) (stating that certain decisions of Secretary of Agriculture pursuant to Plant Variety Act are directly appealable to Court of Appeals for the Federal
Circuit); 19 U.S.C. § 1337(c) (1982) (stating that certain decisions of International Trade
Commission are directly appealable to Court of Appeals for the Federal Circuit; 41 U.S.C.
§ 43a (1982).
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THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 34:595
virtually every case within thirty days after its coming ready and has
rendered a decision within an average of thirty days after hearing.
In all events, the court welcomes comment, suggestion, and criticism. Like war and generals, courts are too important to leave to
judges. The Court of Appeals for the Federal Circuit belongs not to
the judges or the government, but to the people who pay for it and
to whom it is responsible for the administration of justice in the
cases before it. Unlike a ship that can go into dry dock for weeks and
months of repairs, the administration of justice cannot be interrupted. The press of the docket, and the need to focus total concentration on the case at hand, make it difficult for judges to step back
from the fray. Hence the court will value the opportunity of receiving from The American University Law Review the great gift de' 22
scribed by Burns as "to see [o]urselves as [o]thers see us."
22.
R. BURNS, To A Louse., in THE
COMPLETE WORKS OF ROBERT BURNS
259, 261 (1898).
1985]
THE COURT OF APPEALS FOR THE FEDERAL CIRCUIT
CHART
1:
APPENDIX
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