THE FEDERAL COURTS IMPROVEMENT
ACT: A PRACTITIONER'S
PERSPECTIVE
ELLEN E. SWARD*
RODNEY
F. PAGE**
TABLE OF CONTENTS
Introduction ....................................................
I. Purpose and Scope of the Federal Courts Improvement Act
II. The Court of Appeals for the Federal Circuit ..............
A . Jurisdiction ...........................................
B. Procedure .............................................
C . A nalysis ..............................................
1. The novelty of the approach ......................
2. Specialization in the Court of Appeals for the
Federal Circuit ....................................
III. The United States Claims Court ..........................
A. Jurisdiction ...........................................
B. Procedure .............................................
C. Analysis: Is the Claims Court Constitutional? .........
1. Background .......................................
2. Public rights and the Claims Court ...............
3. The Claims Court is not an adjunct ...............
Conclusion ......................................................
385
387
389
389
391
392
392
395
400
400
404
407
407
411
414
415
INTRODUCTION
The Federal Courts Improvement Act of 1982 (the Act)' took effect
on October 1, 1982. By combining the former Court of Customs and
* Associate, Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C. Member, District of
Columbia and Wisconsin Bars. B.A., 1970, University of Cincinnati; J.D., 1979, Harvard Law
School.
** Partner, Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C. Member, District of
Columbia and Virginia Bars. B.A., 1968, University of Kentucky; J.D., 1971, Harvard Law School.
1. Pub. L. No. 97-164, 96 Stat. 25 (1982) (to be 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.) [hereinafter cited as Federal
Courts Improvement Act or the Act].
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[Vol. 33:385
Patent Appeals and the appellate branch of the former Court of Claims,
the statute created a new federal appeals court, the United States Court
of Appeals for the Federal Circuit,2 which is equal in stature to the regional courts of appeals.3 The new appeals court has substantially all of
the subject matter jurisdiction of the courts from which it was formed
plus additional jurisdiction, most notably exclusive jurisdiction over patent appeals from the district courts. 4 Unlike the jurisdiction of the regional federal appeals courts, the new court's jurisdiction is defined by
subject matter rather than by geography; 5 the court can hear appeals
related to that subject matter regardless of where in the United States a
6
case arises.
In addition, the Act assigned the trial functions of the former Court of
Claims to a new court expressly created under article I of the Constitution, the United States Claims Court. 7 The new U.S. Claims Court has
substantially all of the subject matter jurisdiction of the former Court of
Claims, plus additional jurisdiction. 8 Appeals from the U.S. Claims
Court are to the Federal Circuit. 9
The most significant aspect of the Act, the consolidation of patent
appeals jurisdiction in one federal appeals court, has been the subject of
discussion. 10 Indeed, the expected benefit of a uniform patent law" was
2. Id § 101 (amending 28 U.S.C. § 41 (1976)). The Court of Customs and Patent Appeals
was abolished, id. § 122(a) (repealing 28 U.S.C. §§ 831-834 (1976)), and the trial functions of the
Court of Claims were continued and expanded in the newly established United States Claims
Court. See id § 105(a) (amending 28 U.S.C. § 171(a) (1976)).
3. See The New Court of Appeals for the Federal Circuit, 37 REC. A.B. CITY N.Y. 732 (1982)
[hereinafter cited as RECORD].
4. See Federal Courts Improvement Act § 127(a) (to be codified at 28 U.S.C. § 1295). For a
discussion of jurisdiction, see infia notes 46-66 and accompanying text.
5. See H.R. REP. No. 312, 97th Cong., IstSess. 20-23 (1981) [hereinafter cited as HOUSE
REPORT].
6. Id.
7. Federal Courts Improvement Act § 105(a) (amending 28 U.S.C. § 171(a) (1976)). For a
discussion of the difference between article I courts and article III courts, see infra note 149.
8. See Federal Courts Improvement Act § 133(a) (amending 28 U.S.C. § 1491 (1976))
(Claims Court, like its predecessor, hears only claims against United States). For a discussion of
jurisdiction, see infra notes 94-122 and accompanying text.
9. Federal Courts Improvement Act § 127(a) (amending 28 U.S.C. § 1295(a)(3) (1976)).
10. The patent jurisdiction of the United States Court of Appeals for the Federal Circuit has
been discussed in detail in numerous articles. See Lever, The New Court of Appeals for the Federal
Circuit (pt. 2), 64J. PAT. OFF. Soc'y 243,247-65 (1982) (discussing Federal Circuit jurisdiction over
patent appeals from district courts); The Ninth Annual Judicial Conference of the United States Court of
Customs and PatentAppeals, 94 F.R.D. 347, 392-412 (1982) (discussing scope and limitations of patent
jurisdiction of Federal Circuit) [hereinafter cited asJudicialConference]; RECORD, supra note 3, at
739-57 (analyzing Federal Circuit's jurisdictional provision). Patent jurisdiction will not be analyzed in depth here.
11. See HOUSE REPORT, supra note 5, at 20-23 (discussion of need for and benefits of uniformity); see also Jones & Singer, Changes in procedure, strategy due in new Federal Circuit and revamped Claims
Court, 57 J. TAX'N 136, 137 (1982) (consolidation of patent cases is "probably most important
change"); Lever, The New Court of Appealsfor the Federal Circuit (pt. 1), 64 J. PAT. OFF. SOC'" 178,
186-97 (1982) (history of consolidation efforts); RECORD, supra note 3, at 740 (Congress expected to
reduce forum shopping).
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FEDERAL COURTS IMPROVEMENT ACT
an important impetus to passage of the Act. There are, however, other
aspects of the Act that deserve consideration. The Federal Circuit, for
example, is a compromise between specialization, which can produce
uniformity, and generalization, which can prevent stagnation. The nature and effect of that compromise should be explored. In addition, the
constitutionality of the new U.S. Claims Court, created by the Act
under article I, is questionable and should also be examined.
This Article first considers the purpose and scope of the Federal
Courts Improvement Act. It then describes the jurisdiction and procedures of the two courts created by the Act and analyzes the implications
of the compromise that led to the formation of the Federal Circuit. Finally, the Article examines the constitutional underpinnings of the new
Claims Court, and concludes that the court, as currently constituted,
may well be unconstitutional.
I.
PURPOSE AND SCOPE OF THE FEDERAL COURTS
IMPROVEMENT ACT
The lack of uniformity in patent law has long been recognized as a
serious problem in American jurisprudence. 12 Prior to enactment of the
Federal Courts Improvement Act of 1982, all of the regional courts of
appeals had jurisdiction over appeals from the district courts in patent
cases brought under 28 U.S.C. § 1338,13 and there was considerable variation in the courts' interpretation of the patent law. 14 Because some
circuits were seen as favoring the patent infringer and others as favoring
the patentee, these variations led to forum shopping and intense litigation over the choice of forum. 15 More detrimental than the battles over
the forum, however, was that the different interpretations of patent law
discouraged innovation and made business planning difficult and investment uncertain. t 6 Because the validity of a patent could depend entirely on the circuit in which it was litigated, the value of the patent was
12. Se Lever, supra note 11, at 186-97.
13. 28 U.S.C. § 1338 (1976) is the basic jurisdictional statute for patent cases in the district
courts.
14. See Court of Appealsfor the Federal Circuit, 1981: Hearings on HR. 2405 Before the Subcomm. on
Courts, CiilLiberties and the Administration ofJustice of the House Comm. on theJudiia, 97th Cong., 1st
Sess. 6 (1981) (statement of Hon. Howard T. Markey, Chief Judge, Court of Customs and Patent
Appeals) [hereinafter cited as Hearings]; HOUSE REPORT, supra note 5, at 20.
15. See, e.g., Hearings,supra note 14, at 6 (statement of Hon. Howard T. Markey, Chief Judge,
Court of Customs and Patent Appeals) (problems arise from undue forum shopping and unsettling
inconsistency); id at 50 (statement of J. Jancin, Jr., President-elect, American Patent Law Association) (problem stems from lack of uniformity); HOUSE REPORT, supra note 5, at 20-21 (problem is
that some circuits are "pro-patent" and some are "anti-patent").
16. See Hearings,supra note 14, at 6-7 (statement of Hon. Howard T. Markey, Chief Judge,
Court of Customs and Patent Appeals) (uniform law on patents will foster technology); id at 50
(statement ofJ. Jancin, Jr., President-elect, American Patent Association) (Act would add certainty
in attorney decisionmaking and advice).
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[Vol. 33:385
impossible to gauge. The need for uniformity in patent law thus led to
the most important jurisdictional provision in the Act-the grant of exclusive jurisdiction over appeals from the district courts in section 1338
patent cases to the Federal Circuit. 17 By funneling all such appeals to a
single court, the Act will promote national uniformity in the patent
law. 18
Divesting the regional courts of appeals of jurisdiction over an entire
class of cases t9 is also expected to accomplish a secondary purpose of the
Act: to give the regional courts of appeals some relief from their burdensome and ever-increasing caseload. 20 Although patent cases are a small
percentage of the cases that regional courts of appeals handle, they are
particularly complex, difficult, and time-consuming. 2' Relieving the regional courts of appeals of the responsibility for hearing patent appeals
is therefore expected to have a disproportionately beneficial effect on the
17. The Act, however, will not end the debate about patent appeals jurisdiction. Many important questions remain, including what court has jurisdiction over an appeal containing, for example, both patent and antitrust issues. See, e.g., Judicial Conference, supra note 10, at 400-12
(discussion of patent and nonpatent multiple claims, patent counterclaim, declaratory judgment,
patent claim based on diversity jurisdiction); Lever, supra note 10, at 247-65 (discussion of patent
question in counterclaim, patent and contract question in multiple claims); RECORD, supra note 3,
at 739-57 (jurisdictional analysis of patent claims on appeal, declaratory judgment, patent and
nonpatent multiple claims).
18. Both of the predecessor courts of the Federal Circuit had jurisdiction over some patent
cases. The Court of Customs and Patent Appeals had jurisdiction over appeals from decisions of
the Board of Appeals and the Board of Interference Examiners of the Patent Office as to patent
applications and interferences. 28 U.S.C. § 1542 (1976). The Court of Claims had exclusive jurisdiction over infringement actions against the United States. Id § 1498(b) (1976 & Supp. V 1981).
Neither court had jurisdiction over the full range of patent cases found in the regional courts of
appeals. Id §§ 1291, 1338 (1976). Thus, even though the Federal Circuit has adopted the precedent of its predecessor courts, see South Corp. v. United States, 690 F.2d 1368, 1370-71 (Fed. Cir.
1982), there may be issues that have been decided in some or all of the regional courts of appeals,
but not in the new court's predecessor courts. These issues will be relitigated in the new court,
possibly leading to an increase in the number of patent cases brought before the court in the next
few years, as well as to some temporary uncertainty over the state of the law.
19. In this sense, the Federal Courts Improvement Act is similar to the law that established
the Court of Customs and Patent Appeals' predecessor, the Customs Court, which divested the
regional courts of appeals of jurisdiction over customs cases. See G.S. RICH, A BRIEF HISTORY OF
THE UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS 6-7 (1980). The creation of the
Court of Customs Appeals in 1909 grew out of a concern for the lack of uniformity in customs law
that is similar to the concerns regarding patent law that, in part, gave rise to the Federal Courts
Improvement Act. See Hearings,supra note 14, at 13 (statement of Hon. Howard T. Markey, Chief
Judge, Court of Customs and Patent Appeals). By the time Congress created the Court of Customs
Appeals, the trial of customs cases had been consolidated into what became the Customs Court
and, later, the Court of International Trade. See G.S. RICH, supra, at 6-7. Thus, the Court of
Customs Appeals did not hear appeals from district court decisions. Id
20. See, e.g., HOUSE REPORT, supra note 5, at 17-18 (description of caseload crisis, 1962-1981);
S. REP. No. 275, 97th Cong., 1st Sess. 7, reprinted in 1982 U.S. CODE CONG. & AD. NEwS 11, 17
[hereinafter cited as SENATE REPORT];JudicalConference, supra note 10, at 358 (remarks of Rep.
Kastenmeier, Chairman of Subcommittee on Courts, House Judiciary Committee) (brief summary
of caseload, 1962-1979); seealso Lever, supra note 11, at 186-91 (history of efforts to relieve caseload
crisis); Zengerle & Martin, New Courtsfor the Federa/Judicra, 26 BOSTON BJ. 19, 20 (1982) (brief
summary of caseload, 1962-198 1).
21.
See SENATE REPORT, supra note 20, at 7 (cases are complex and technical).
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FEDERAL COURTS IMPROVEMENT ACT
caseload of the regional courts. 22
With respect to the Claims Court, Congress intended the Act to upgrade the status of the court and to improve trial procedures. 23 Under
prior legislation, the trial functions of the Court of Claims were handled
by sixteen trial judges, formerly known as commissioners, who were appointed by the article III judges of the Court of Claims and served at
their pleasure.2 4 These trial judges had no power to enter final judgments; rather, they merely made recommendations to the article III
judges. 25 The new legislation gives the trial judges the status of article I
judges with power to enter final judgments. The Act also gives the new
judges some equitable powers. 26 Congress intended this new article I
status to improve the trial of claims against the United States, by giving
the new judges more independence than they had under prior legislation. 27 Furthermore, Congress expected the trial function to become
more efficient because the power of the new judges to enter final judgments would eliminate the necessity that every case, in effect, be
28
appealed.
II.
THE COURT OF APPEALS FOR THE FEDERAL CIRCUIT
A. Jurisdiction
In addition to section 1338 patent appeals 29 and appeals from the
22. The problem of overburdened appellate courts has received a great deal of attention in
recent years. See, e.g., COMMISSION ON REVISION OF THE FEDERAL COURT APPELLATE SYSTEM,
STRUCTURE AND INTERNAL PROCEDURES: RECOMMENDATIONS FOR CHANGE, reportedin 67 F.R.D.
195, 195 (1975) (discussion of National Court of Appeals as effort to relieve caseload) [hereinafter
cited as HRUSKA REPORT]; Lever, supra note 11, at 186-91 (discussion of history of efforts to relieve
caseload); Levin, Adding Appellate Capacity to the FederalSystem: A National Court ofAppeals on an InterCircuit Tribunal, 39 WASH. & LEE L. REV. 1 (1982) (discussion of attempt to relieve caseload
through National Court of Appeals on intercircuit tribunal).
23. See HOUSE REPORT, supra note 5, at 17; SENATE REPORT, supra note 20, at 2.
24. 28 U.S.C. § 792(c) (1976 & Supp. V 1981). In 1961, the Court of Claims adopted a rule
protecting the trial judges against removal "except for inefficiency, neglect of duty, or misconduct."
W. COHEN, P. NICHOLS, JR. & M.T. BENNETT, THE UNITED STATES COURT OF CLAIMS: A HISTORY, PART II: ORIGIN-DEvELOPMENT-JURISDICTION, 1855-1978, at 89 (1978) (quoting 28
U.S.C. § 792(c) (1976 & Supp. V 1981)) [hereinafter cited as W. COHEN].
25. The powers of the trial judges were set out in 28 U.S.C. § 2503 (1976). Rule 13(b) of the
Court of Claims made trial judges responsible, in the first instance, for findings of fact and recommendations as to decisions. Ct. Cl. R. 13(b),reprintedin 28 U.S.C. app. (1976). The court generally
deferred to the factual determinations of the trial judges. See Ct. Cl. R. 147(b) ("the findings of fact
made by the trial judge should be presumed to be correct"), reprinted in 28 U.S.C. app. (1976); see
also Barnes v. United States, 170 Ct. Cl. 639 (1965). Seegenerally W. COHEN, supra note 24, at 90-95
(discussing history of trial division).
26. See Federal Courts Improvement Act § 133 (amending 28 U.S.C. § 1491(a)(3) (1976)); id.
§ 105 (amending 28 U.S.C. § 171 (1976)).
27. See HOUSE REPORT, supra note 5, at 25.
28. Id at 25-26.
29. See Federal Courts Improvement Act § 127 (to be codified at 28 U.S.C. § 1295(a)(1)).
Copyright and trademark cases heard in the district courts under § 1338 will continue to be appealed to the regional courts of appeals.
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THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 33:385
district courts regarding certain claims brought under 28 U.S.C.
§ 134630, the Federal Circuit has jurisdiction over appeals from final decisions of the Claims Court and the Court of International Trade; administrative decisions relating to patents and trademarks; unfair trade
determinations of the International Trade Commission; findings of the
Secretary of Commerce relating to certain Tariff Schedules, although
review is limited to questions of law; decisions of the Merit Systems Protection Board; decisions of the agency boards of contract appeals and
appeals under section 71 of the Plant Variety Protection Act. 3 t Notably
excluded from this list are appeals from district court decisions relating
to certain internal revenue matters. 32 Although the Federal Circuit now
has jurisdiction over appeals from the tax refund cases heard in the
Claims Court, the regional courts of appeals retain jurisdiction over
30. See id § 127 (amending 28 U.S.C. § 1295(a)(2) (1976)).
31. Id Between October 28, 1982, and December 30, 1983, the Federal Circuit heard appeals
from the following sources: the United States Claims Court, the United States district courts, the
Merit Service Protection Board, the Patent and Trademark Office, the Court of International
Trade and International Trade Commission, the Boards of Contract Appeals, and decisions of the
Secretary of Commerce.
Of the nearly 200 decisions rendered during that time, appeals from the Claims Court constituted approximately 27%. See, e.g., Bailey v. United States, No. 83-846 (Fed. Cir. Nov. 18, 1983)
(available on LEXIS, Genfed library, Cir file) (attorney's fees award); Caci v. United States, 719
F.2d 1567 (Fed. Cir. 1983) (contract claim); In re Costello, 717 F.2d 1346 (Fed. Cir. 1983) (patent
validity and infringement action); Hardee v. United States, 708 F.2d 661 (Fed. Cir. 1983) (tax
claim). Appeals from district courts comprised 21% of the cases heard. See Carman Indus., Inc. v.
Wahl, No. 83-978 (Fed. Cir. Dec. 27, 1983) (available on LEXIS, Genfed library, Cir file) (patent
validity and infringement claim); Heisig v. United States, 719 F.2d 1153 (Fed. Cir. 1983) (employee
discharge action); Hanson v. Alpine Valley Ski Area, Inc., 718 F.2d 1075 (Fed. Cir. 1983) (patent
damages). Twenty percent of the cases heard were appeals from the Merit Systems Protection
Board. See Williams v. Office of Personnel Management, 718 F.2d 1553 (Fed. Cir. 1983) (attorney's
fees award); Meehan v. United States Postal Serv., 718 F.2d 1069 (Fed. Cir. 1983) (employee discharge action); Devine v. Nutt, 718 F.2d 1048 (Fed. Cir. 1983) (arbitration award). Appeals from
the Patent and Trademark Office and the Court of International Trade and International Trade
Commission each constituted 11% of the cases heard. The appeals from the Patent and Trademark
Office came from decisions of that office's Trade Trial and Appeals Board, see, e.g., Mother's Restaurant, Inc. v. Mama's Pizza, Inc., No. 83-948 (Fed. Cir. Dec. 21, 1983) (available on LEXIS,
Genfed library, Cir file); from the Patent and Trademark Office Board of Appeals, see, e.g., In re
Cornelius Mulder, 716 F.2d 1542 (Fed. Cir. 1983); and from the Patent and Trademark Office
Board of Patent Interference, see, e.g., Magdo v. Peltzer, 699 F.2d 1325 (Fed. Cir. 1983). The court
heard appeals from the Court of International Trade, see, e.g., Daw Indus., Inc. v. United States,
714 F.2d 1140 (Fed. Cir. 1983) (classification problems); and from the International Trade Commission, see, e.g., Schaper Mfg. Co. v. United States Int'l Trade Comm'n, 717 F.2d 1368 (Fed. Cir.
1983) (question of "injury" to domestic industries). Appeals from the Boards of Contract Appeals
of various government agencies accounted for approximately 5% of the appeals heard. See, e.g.,
Coastal Corp. v. United States, 713 F.2d 728 (Fed. Cir. 1983) (Dep't of Energy); Placeway Constr.
Co. v. United States, 713 F.2d 726 (Fed. Cir. 1983) (Armed Services Board); Rough and Ready
Timber Co. v. United States, 707 F.2d 1353 (Fed. Cir. 1983) (Dep't of Agriculture); Aleut Tribe v.
United States, 702 F.2d 1015 (Fed. Cir. 1983) (Dep't of Transportation); Systems Technology Assocs., Inc. v. United States, 699 F.2d 1383 (Fed. Cir. 1983) (Dep't of Interior). Appeals from decisions of the Secretary of Commerce accounted for 5% of the cases heard. See, e.g., University of N.C.
v. United States Dep't of Commerce, 701 F.2d 942 (Fed. Cir. 1983) (Dep't of Commerce).
32. Federal Courts Improvement Act § 127 (amending 28 U.S.C. § 1295(a)(2) (1976));see also
28 U.S.C. § 1346 (1976 & Supp. V 1981) (district court jurisdiction).
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FEDERAL COURTS IMPROVEMENT ACT
such appeals from the district courts.3 3 Prepayment contests, which involve the same issues, are waged in the Tax Court and are appealed to
the regional courts of appeals. 3 4 Congress evidently did not find it neces35
sary to consolidate these similar tax appeals in one court.
B.
Procedure
The Federal Circuit, like the regional courts of appeals, is governed
36
by the Federal Rules of Appellate Procedure and its own local rules.
The Federal Courts Improvement Act requires the Federal Circuit to
provide for rotation ofjudges to ensure that all judges sit on a "representative cross section" of cases. 37 Furthermore, the Federal Circuit is the
only circuit that Congress has authorized to provide panels of more than
three judges, but less than the full court.3 8 Congress intended that such
panels be provided in cases in which the issues are "complex or important," or in which "authoritativeness of decisions and doctrinal stability
would be enhanced by the use of larger panels. ' 39 Congress authorized
the use of larger panels in the Federal Circuit because it expected the
court to have "an unusual number of complex cases in which current
law [was] not uniform or [was] inconsistently applied. ' 4° The Chief
Judge of the new court, Howard T. Markey, has indicated that he will
assign panels of five judges to cases in which they would "lend further
credence and reliability to decisions reached in particularly sensitive
cases or in cases involving areas of the law new to the court."'4 1 Judge
Markey has also indicated that, at least on an interim basis, he will circulate approved opinions of three-judge panels to the other judges of the
court prior to their release.4 2 Although the other judges will not participate in the decision, this procedure will make them aware of the court's
33. See Federal Courts Improvement Act § 127 (amending 28 U.S.C. § 1295 (1976)); 28
U.S.C. § 1346(a) (1976 & Supp. V 1981).
34. 26 U.S.C. § 7482 (1976).
35. As a result, contests over tax liability are currently spread out over two article I trial
courts-the Claims Court and the Tax Court; 91 article III trial courts-the United States District
Courts; and 13 article III appellate courts-the federal courts of appeals. See generally Worthy, The
Tax Litigation Structure, 5 GA. L. REv. 248 (1971) (discussing importance of United States Tax
Court).
36. See Federal Courts Improvement Act § 101 (amending 28 U.S.C. § 41 (1976)); id.§ 208(a)
(amending 28 U.S.C. § 2077 (1976));Judicial Conference, supra note 10, at 361-62.
37. Federal Courts Improvement Act § 103 (amending 28 U.S.C. § 46(b)(3) (1976)).
38. Id § 103(c) (amending 28 U.S.C. § 46(c) (1976)).
39. See House REPORT, supra note 5, at 30-3 1.
40. Id
41. Arieff, New Court of Appeals Already Faces FullDocket, Legal Times, Sept. 20, 1982, at 1, col.
7.Judge Markey was Chief Judge of the Court of Customs and Patent Appeals. He was appointed
ChiefJudge of the Court of Appeals for the Federal Circuit under a provision of the Federal Courts
Improvement Act detailing the manner of choosing the chiefjudge. See Federal Courts Improvement Act § 166 (to be codified at 28 U.S.C. § 45).
42. Arieff, supra note 41, at 7.
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THE AMERICAN UNIVERSITY LAW REVIEW
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opinion and will enable them to note possible conflicts with past deci43
sions of the predecessor courts.
The Federal Circuit has twelve judges, five judges from the former
Court of Customs and Patent Appeals and seven judges from the former
Court of Claims.44 As article III judges, they are constitutionally protected from removal without cause and from reduction in
45
compensation.
In the Federal Courts Improvement Act Congress provided for a
transfer authority to save cases accidentally filed in the wrong court. 46
This provision applies to all federal article III courts and to the Claims
Court. It allows an action to be transferred to the correct court without
jeopardizing the party's compliance with the statute of limitations or the
time limit for filing a notice of appeal. 47 Although filing errors have
been a problem in the federal courts for some time, 48 Congress did not
address the issue until it created the Federal Circuit, a federal appeals
court with jurisdiction defined by subject matter. Congress may have
decided to act at this time because subject matter jurisdiction in appellate courts is a new concept for private litigants, and, especially in the
early years of the court, even more filing errors can be anticipated. 49
C
I.
Anaysis
The novelty of the approach
Much has been made of the fact that subject matter rather than geography defines the jurisdiction of the Federal Circuit. The Federal Circuit, however, is not the first appellate court in the United States that
43. Id
44. Federal Courts Improvement Act § 165 (amending 28 U.S.C. § 44 (1976)).
45.
See HOUSE REPORT, supra note 5, at 18, 30.
46. Federal Courts Improvement Act § 301 (to be codified at 28 U.S.C. § 1631).
47. Specifically, the action or appeal will be deemed filed or noticed as of the date it was filed
or noticed in the wrong court. Id The constitutionality of transferring an action from the Claims
Court, an article I court, to a district court, an article III court, has been questioned. See RECORD,
supra note 3, at 736-37. This question would not have arisen regarding the former Court of Claims,
which was an article III court.
48. See SENATE REPORT, supra note 20, at 30 (discussing problem of misfiling and subsequent
running of statute of limitations period for filing).
49. Questions over patent jurisdiction, in particular, are likely to cause confusion. In cases
that involve both patent and nonpatent issues, it may not be clear which appellate court has jurisdiction. For a discussion of situations in which appellate jurisdiction is unclear, seeJudicialConference, supra note 10, at 392-412 (discussing patent and nonpatent multiple claims, patent
counterclaim, declaratory judgments, patent claim based on diversity jurisdiction); Lever, supra
note 10, at 247-65 (discussing patent question in counterclaim, patent and contract question in
multiple claims); RECORD, supra note 3, at 737-57 (jurisdictional analysis, patent claims on appeal,
declaratory judgment, patent and nonpatent multiple claims). The transfer authority has been
used at least once, although not in a patent case. In United States v. John C. Grimberg Co., 702
F.2d 1362 (Fed. Cir. 1983), the Federal Circuit upheld the transfer of a government contract case
from the Claims Court to the United States District Court for the District of Columbia. See mnfra
notes 100-02 and accompanying text.
1984]
FEDERAL COURTS IMPROVEMENT ACT
has jurisdiction defined by subject matter. Subject matter defined the
jurisdiction of both of the predecessor courts to the Federal Circuit 50
and of the Temporary Emergency Court of Appeals, 5' the Emergency
Court of Appeals, 52 the Commerce Court, 53 the Tax Court, 54 and the
Court of International Trade. 55 Of these courts, only the Tax Court is
an article I court and only the Tax Court and the Court of International
Trade are "trial" courts, although both courts review decisions of administrative tribunals. 56 Congress abolished the Commerce Court because of concern that special interest groups would gain control of the
court. 52 The other courts, however, have fulfilled their functions fairly
50.
The Court of Claims had both trial and appellate functions. For purposes of this discus-
sion it will be considered an appellate court.
51. Se Economic Stabilization Act of 1970, § 211, 12 U.S.C. § 1904 note (1982). The Temporary Emergency Court of Appeals originally heard appeals in cases arising out of wage and price
regulations. Id Although the price control program was eliminated in 1974, the duties of the
temporary court expanded to include appeals from district courts in cases arising under the Emergency Petroleum Allocation Act of 1973, 15 U.S.C. § 751 (1982), the Energy Policy and Conservation Act of 1975, 12 U.S.C. § 1904 (1982), and the Emergency Natural Gas Act of 1977, 15 U.S.C.
§ 717 (1982). The Chief Justice designates the judges of the Temporary Emergency Court of Appeals from judges of the lower article III federal courts to serve on the court on a part-time basis.
Economic Stabilization Act of 1970, § 211, 12 U.S.C. § 1904 note (1982). Unlike the Court of
Customs and Patent Appeals or the Court of Claims, the Temporary Emergency Court of Appeals
has jurisdiction over appeals from the district courts, and is therefore similar to the Federal Circuit.
Id There are, however, differences. Although Congress created the temporary court to be just
that-temporary-it established the federal appeals court as a permanent change in the federal
judicial structure. Furthermore, Congress created the temporary court simultaneously with the
enactment of the legislation it was to review. Thus, the creation of the temporary court did not
divest any federal appellate courts of jurisdiction.
52. Emergency Price Control Act of 1942, § 204, 56 Stat. 23 (repealed 1953). Congress created the Emergency Court of Appeals in 1942 as an article III court to exercise exclusive jurisdiction over challenges to regulations, price schedules, and orders issued by the wartime Office of Price
Administration. The functions of the Office of Price Administration were continued under the Defense Production Act of 1950, § 408, 64 Stat. 798, 808 (1950), to determine the validity of price and
wage stabilization orders issued under that Act. On April 18, 1962, after denial of certiorari in the
last case on its docket, the Emergency Court of Appeals terminated its existence. See Glidden Co. v.
Zdanok, 370 U.S. 530, 559-61 (1962) (discussing Emergency Court of Appeals).
53. Mann-Elkins Act of June 18, 1910, ch. 309, 36 Stat. 539, repealed by Act of October 22,
1913, ch. 32, 38 Stat. 208, 219. Congress created the Commerce Court in 1910 as an article III
court to review decisions of the Interstate Commerce Commission. Congress abolished the court in
1913, largely because of fear that it would favor the railroads over the public interest. See F.
FRANKFURTER & J. LANDIS, THE BUSINESS OF THE SUPREME COURT 146-76 (1927) [hereinafter
cited as FRANKFURTER & LANDIS]; Dix, The Death of the Commerce Court: A Stud in Institutional Weakness, 8 AM. J. LEGIS. HisT. 238 (1964).
54. 26 U.S.C. §§ 7441-7448 (1976 & Supp. IV 1981). Congress created the United States Tax
Court in 1954. The court is comprised of 16 members appointed by the President with the advice
and consent of the Senate. Id § 7443. The Internal Revenue Code of 1939 and the Revenue Act of
1926 define the jurisdiction of the Tax Court and its divisions. Id § 7442.
55. 28 U.S.C. §§ 1581-1585 (1976).
56. Legislation is now pending in Congress that would provide for certain appeals from administrative decisions in international trade to be taken directly to the Federal Circuit, bypassing
the Court of International Trade. See S. 1672, 98th Cong., 1st Sess., 129 CONG. REc. S10753,
S10755-57 (daily ed. July 25, 1983) (statement of Sen. Mitchell).
57. See supra note 53.
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58
and effectively.
There is virtually no feature of the Federal Circuit that has not appeared in earlier legislation, although Congress has never before included it all in the same legislation. For example, the Temporary
Emergency Court of Appeals hears appeals from all the district courts
relating to certain specified subject matter, although it is not a permanent court. 59 The Court of Customs Appeals, created in 1909, divested
the regional courts of appeals of jurisdiction over designated cases,
though it heard appeals from only specialized trial tribunals and not
from district court decisions. 6° Combining these and other attributes,
the Federal Circuit is the first permanent federal appellate court to have
exclusive jurisdiction over appeals from all district courts relating to certain specified subject matter.
To Congress, the Federal Courts Improvement Act represented the
creation of a unique judicial organization, notwithstanding the precedent for much of what is found there. The Senate anticipated that the
statute would "fill a void in the judicial system by creating an appellate
forum capable of exercising nationwide jurisdiction over appeals in areas of the law where Congress determines there is a need for nationwide
uniformity. ' 6 1 Despite the suggestion that the Federal Circuit could
continue to accept more specialized subject matter jurisdiction, the Senate emphasized that it was not Congress's immediate intent to enlarge
the court's jurisdiction:
[T]he creation of a Federal appellate court with jurisdiction that is
defined in terms of subject matter rather than territory provides an
institutional structure which the Federal judicial system, as it is presently constituted, lacks. The committee has determined that an adequate showing has been made for nationwide subject matter
jurisdiction in the areas of patent and claims court appeals. It must
be understood, however, that it is not the committee's judgment that
broader subject matter jurisdiction is intended for this court.
It must therefore be noted that any additional subject matter for
the Federal Circuit will require not only serious future evaluation, but
62
new legislation.
Thus, although Congress wanted to establish a court that could accept other specialized jurisdiction should the need arise, it apparently
wanted to await the outcome of its experiment before adding to the
58. See generally Jordan, Specialized Courts: A Choice?, 76 Nw. U.L. REv. 745, 749-62 (1981)
(discussing need for and benefits to litigants from specialized courts).
59. See Economic Stabilization Act of 1970, § 211, 12 U.S.C. § 1904 note (1982).
60. See Payne-Aldrich Tariff Act of Aug. 5, 1909, 36 Stat. 11, 105-08, noted in Glidden Co. v.
Zdanok, 370 U.S. 530, 587 (1960) (Clark, J., concurring).
61. SENATE REPORT, supra note 20, at 2.
62. Id at 4.
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FEDERAL COURTS IMPROVEMENT ACT
court's jurisdiction. 63
2. Special'ationin the Court ofAppeals for the Federal Circuit
Congress's hesitancy to grant additional specialized jurisdiction to the
Court of Appeals for the Federal Circuit stems from a longstanding fear
of overspecialization in the federal courts, especially in the federal appellate courts. The first Judiciary Act organized federal judicial power
around geographic regions corresponding to state boundaries. 64 Although numerous specialized courts have since been established, geogra65
phy remains the favored basis for the organization of federal courts.
In contrast, specialized courts have been proposed primarily for complex areas of statutory law in which it is thought that they can ensure
"speed, efficiency, and predictability. '66 When specialized courts are
proposed, Congress generally hears considerable criticism of specialization in the federal judiciary.6 7 The principal criticisms are that such
courts would have "tunnel vision," unable to see the context in which
63. There have already been suggestions that Congress expand the court's jurisdiction. See,
eg.,JudtctalConference, supra note 10, at 527 (remarks of Judge Marion T. Bennett) (noting suggestions for veterans' appeals court and contract appeals court); Petrowitz, FederalCourt Reform. The
Federal Courts Improvement Act of 1982-and Bqond, 32 AM. U.L. REv. 543, 554 (1983) (discussing
Congress's refusal to grant Federal Circuit exclusive jurisdiction in tax appeals). There have also
been suggestions advocating the creation of a national court of appeals to decide matters requiring
a uniform national rule, such as environmental matters, labor law, and securities law. See, e.g., id at
544-51. Other proposals include the appointment of an ad hoc delegation to en banc circuit courts,
the creation of a national en banc court, and a reduction in the number of federal circuits. See
Wallace, The Nature and Extent of IntercircuitCon[cts: A Solution Neededfor a Mountain or a Molehill, 71
CALIF. L. RE%,. 913, 935-41 (1983). Under the first proposal, "the Supreme Court could certify
intercircuit conflict issues to the en banc circuit courts, on a random or rotating basis," and "could
review the case just as it would any other incorrect decision." Id at 935. Under the second proposal, a majority vote of the Justices of the Supreme Court or a majority vote of the twelve circuit
courts could convene a national en banc court. Id at 936. The court would consist of twelve circuit
court judges chosen by lot from the total number of judges in the twelve circuits. Id Under the
third proposal, the number of potential conflicts would be minimized as the number of circuits is
decreased. Id at 940.
64. S&e P. BATOR, P. MISHKIN, D. SHAPIRO & H. WECHSLER, HART & WECHSLER's THE
FEDERAL COURTS AND THE FEDERAL SYSTEM 32-33 (2d ed. 1973) [hereinafter cited as HART &
WECHSLER].
65. See supra notes 50-57 and accompanying text. Seegenerally FRANKFURTER & LANDIS, supra
note 53, at 146 (discussing creation of and basis for specialized courts); HART & WECHSLER, supra
note 64, at 47-49 (discussing various specialized courts). Although Hart and Wechsler identify the
territorial courts, including the District of Columbia courts, as "specialized courts," they are not
specialized in the same sense as, for example, the Tax Court. The territorial courts, which are
considered article I courts formed pursuant to the legislative power of Congress, exercise a general
local jurisdiction similar to that exercised by state courts.
66. Jordan, supra note 58, at 748. See H. FRIENDLY, FEDERAL JURISDICTION: A GENERAL
VIEW 153-71 (1973) (possibility of offering trial-level specialist as option in difficult cases would
allow litigants to obtain benefits of specialization if parties consent).
67. See, e.g., 45 CONG. REC. 7365 (1910) (Sen. Shively's comments regarding proposed Commerce Court); 44 CONG. REc. 4185, 4191 (1909) (Sen. Borah's comments regarding proposed Customs Court); HRUSKA REPORT, supra note 22, at 234 (recommendation against creation of
specialized patent court); Rifkind, A Specialized Courtfor PatentLitigation? The Dangerof a Specialized
Judictaq, 37 A.B.A. J. 425 (1951) (criticism of Patent Court).
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THE AMERICAN UNIVERSITY LAW REVIEW
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their specialty must function, and that specialized courts are susceptible
to the influence and control of special interests. 68 Other possible
problems that critics have pointed out include the danger that judges
could impose their own views of policy; the danger that thorough and
persuasive opinions would not be written when only one court is likely
to pass on an issue; the dilution of regional influence; the contraction in
the breadth of experience of judges in the other circuits; and the possi69
bility that such courts would not attract judges of high quality.
The Federal Circuit is the most recent addition to the long list of
specialized courts that have been formed in spite of these fears. 70 The
Federal Circuit was born of a recognized need for uniformity in patent
law, which Congress considered could only be achieved by funneling all
patent appeals to one appellate court.
Congress seemed to have more than the usual fear of overspecialization when it created the Federal Circuit. 7 1 Despite the apparent success
of other specialized federal courts, the fear of overspecialization was the
chief concern expressed about concentrating patent appeals jurisdiction
in one appellate court. 72 Congress attempted to accommodate these
concerns by granting additional subject matter jurisdiction to the appellate court to which patent cases were assigned. This was done by combining two existing courts and consolidating their jurisdiction in the
new court.
The basis for Congress's approach to the problem of overspecialization appears to have been the ease with which the consolidation could
be accomplished. 73 The courts from which the Federal Circuit was
formed already existed as courts of designated subject matter jurisdiction. Indeed, they were, in a sense, orphan courts, each with a special68.
69.
70.
71.
not only
See HRUSKA REPORT, supra note 22, at 234-35; Rifkind, supra note 67, at 425-26.
See HRUSKA REPORT, supra note 22, at 234-35.
See supra notes 50-57 and accompanying text.
Congress may have been influenced by the vocal opposition to a specialized patent court,
in congressional hearing on the Federal Courts Improvement Act, see Hearings, supra note
l4passim; HOUSE REPORT, Supra note 5, at 4, 31, but in studies and commentary as well. See, e.g.,
Rifkind, supra note 67, at 425. Even the Hruska Commission had opposed the creation of a nationwide court of patent appeals. See HRUSKA REPORT, supra note 22, at 234.
72.
See HOUSE REPORT, supra note 5, at 2.
73. Congress thought that the merger of the two courts could be accomplished with minimal
disruption: the predecessor courts already occupied the same building in Washington, D.C. Both
the Senate Report and the House Report anticipated that combining the two courts would eliminate overlapping functions and would increase efficiency-for example, by consolidating the two
clerks' offices. See HOUSE REPORT, supra note 5, at 23; SENATE REPORT, supra note 20, at 4-5. In
fact, there were few, if any, overlapping functions, and the alleged benefits of efficiency are mitigated by the fact that the creation of the Claims Court means that two courts-and two clerks'
offices--still exist. Congress clearly desired to focus all patent appellate jurisdiction in one appellate court, and a court that combined the jurisdiction of the Court of Claims and the Court of
Customs and Patent Appeals was a convenient vehicle for that new jurisdiction.
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FEDERAL COURTS IMPROVEMENT ACT
ized jurisdiction only distantly related to that of other federal courts. 74
The two courts were, in fact, located in the same building in Washington, D.C., and no physical relocation was required. 75 It was, therefore,
easy to envision a combined version of these two courts as a vehicle for
the new nationwide patent jurisdiction-the real impetus behind the
Federal Courts Improvement Act-especially because both courts already had some patent jurisdiction.
The structure that Congress adopted was hailed as an effective solution to the problem of specialization, because it created a court that was
less specialized than either of its predecessors. 76 Unfortunately, most of
the areas assigned to the Federal Circuit, including tax, patent, international trade, and government contracts, are so esoteric that they are
nearly devoid of a generalizing influence. The jurisdiction of the Federal Circuit includes several complex and isolated areas of statutory law.
Thus, the Federal Circuit is "generalist" only if one means by "generalist" that it specializes in several areas. If, however, one means by
"generalist" that the court provides a healthy environment for the crossfertilization of ideas, the Court of Appeals for the Federal Circuit is not
77
a generalist court.
That the Federal Circuit is less generalist than Congress intended is
not necessarily a fatal flaw. Like patent law, the other substantive areas
of law within the jurisdiction of the Federal Circuit are areas that will
benefit from uniform nationwide treatment. 78 Indeed, Congress explicitly found that international trade law requires uniformity when it created the original Customs Court,7 9 and the development of
international trade has been serviced by specialized trial and appellate
74. Unlike the Court of Customs and Patent Appeals, the Court of Claims shared some of its
jurisdiction with other federal courts. See 28 U.S.C. § 1346 (1976 & Supp. V 1981). Itsjurisdiction
was therefore more closely related to other courts than was that of the Court of Customs and Patent
Appeals.
75.
See HOUSE REPORT, supra note 5, at 23.
76. See, e.g., Heanngs, supra note 14, at 374-75 (statement of Donald R. Dunner, President,
American Patent Law Association); id at 9 (statement of Hon. Howard T. Markey, Chief Judge,
Court of Customs and Patent Appeals).
77. Although the incorporation of the broad jurisdiction of the former Court of Claims will
have a somewhat generalizing influence on the new court, the Supreme Court's observation that
"the cases heard by the [former Court of Claims] have been as intricate and far-ranging as any
coming within the federal-question jurisdiction." Glidden Co. v. Zdanok, 370 U.S. 530, 556-57
(1962), may be an overstatement. It is unlikely, for example, that the Claims Court would have
been confronted with an antitrust question. Furthermore, the Claims Court did not benefit from
the broadening effects of diversity jurisdiction, which brings the entire range of state law questions
within the province of the federal judge.
78. One commentator has suggested that specialty courts should be established only in areas
in which unacceptable intercircuit conflicts place an intolerable burden on both the federal judiciary and the parties involved. See Wallace, supra note 63, at 932-34. Excessive forum shopping and
the adverse effect of intercircuit conflicts on product development, for example, justified the creation of a specialty court in the field of patent law. Id.
79. Act of May 28, 1926, §§ 1-2, 44 Stat. 669 (1926).
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courts for most of this century apparently successfully. 80 In addition, a
congressional commission has identified a number of tax questions that
8 1 suggesting that tax law
the existing courts have decided inconsistently,
82
also suffers from lack of uniformity.
In addition to promoting uniformity, specialization will confer other
benefits on the substantive areas of law that fall within the jurisdiction
of the Federal Circuit. Because all of these areas involve complex statutory schemes that can be confusing to the uninitiated, a specialist has an
advantage in coping with the issues that may arise.8 3 Indeed, specialized courts have existed in most of the areas for some time: the Court of
International Trade 84 and the former Court of Customs and Patent Appeals85 have decided trade cases; the Tax Court has adjudicated tax
cases; 8 6 and the former Court of Claims has heard claims against the
United States,8 7 including contract claims. Although the Court of International Trade and the Court of Customs and Patent Appeals were the
only courts with exclusive jurisdiction over any of these areas, it is clear
that Congress has recognized the benefits of specialization in all of the
88
areas now within the jurisdiction of the Federal Circuit.
Because the areas assigned to the Federal Circuit can benefit from
both specialization and uniformity, Congress may find it expedient to
extend the Federal Circuit's exclusive jurisdiction over one or more of its
other specialties as well. Such an extension will likely depend on
whether Congress regards the grant of exclusive jurisdiction over patent
cases to the Federal Circuit as successful.
Although the Federal Circuit could alleviate the problems of lack of
uniformity in a number of substantive areas of federal law, potential
problems exist with the new court. The mix of subject matter jurisdiction in the new court is uncomfortable because the various specialties
are essentially unrelated. Furthermore, all of the specialties involve
80. See Jordan, supra note 58, at 749.
81. See HRUSKA REPORT, supra note 22, at 285-98 app. B. Congress established the Commission on Revision of the Federal Court Appellate System-the Hruska Commission-to study the
need for federal court reform. Act of Oct. 13, 1972, Pub. L. No. 92-489, 86 Stat. 807 (amended by
Act of Sept. 19, 1974, Pub. L. No. 93-420, 88 Stat. 1153); see HRUSKA REPORT, supra note 22. For a
complete discussion of the Hruska Report, see Petrowitz, supra note 63, at 545-47.
82. See Leventhal, A Modest Proposalfora Multi-Circuit Court ofAppeals, 24 AM. U.L. REx. 881
(1975) (analyzing inability of system to apply rules of consistent national application in matters
related to federal law and policy, including tax area).
83. See H. FRIENDLY, supra note 66, at 153-71; Jordan, supra note 58, at 747-48.
84. See supra note 55 and accompanying text.
85. The Court of Customs and Patent Appeals was abolished pursuant to Federal Courts
Improvement Act § 122 (repealing 28 U.S.C. §§ 831-834 (1976)). See supra note 2.
86. See supra note 54 and accompanying text.
87. See supra note 2.
88. Some degree of specialization in the areas assigned to the Federal Circuit also exists within
the bar. The patent bar, for example, is formally organized.
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FEDERAL COURTS IMPROVEMENT ACT
complex statutes that will require some time for judges to master. Both
Congress and the court have recognized these potential problems of
complexity and inexperience and have taken steps to remedy them, including the use of five-judge panels and the circulation of approved
opinions among all judges of the court.8 9 These measures, however, may
not be entirely successful. Just as it would be impossible for any practicing member of the bar to specialize effectively in all of the areas of law
assigned to the Federal Circuit, it is equally unrealistic to expect the
judges to be specialists in all of the areas. If specialization is the court's
ultimate goal, the mix of subject matter jurisdiction may have to be
altered.
Because the jurisdiction of the Federal Circuit is so specialized, the
court may also suffer from some of the problems inherent in courts that
lack the generalizing influence that a broad jurisdictional base provides.
Exposure to a variety of legal issues is important even in areas in which
specialization is valuable and uniformity is an overriding concern. This
is true in part because insight from other areas of the law helps to keep
fresh ideas flowing into the specialty and integrate that speciality into
°
contemporary legal developments in other areas of the lawP As one
critic of a specialized patent court has noted:
The patent law does not live in the seclusion and silence of a Trappist
monastery. . . . Patent lawyers tend to forget that license agreements are essentially contracts subject to the law of contracts; that
infringements are essentially trespasses subject to the law of torts; that
patent rights are a species of property rights; and that proof in patent
litigation is subject to the laws of evidence. Changes in all these
branches of the law today have an effect on the patent law as
well. . . . Once you segregate the patent law from the natural environment in which it now has its being, you contract the area of its
exposure to the self-correcting forces of the law. In time such a body
of law, secluded from the rest, develops a jargon of its own, thoughtpatterns that are unique, internal policies which it subserves and
which are different from and sometimes at odds with the policies pursued by the general law.9 1
The interrelationship between the specialty and other areas of substantive law is reciprocal. Because the jurisdiction of the Federal Circuit
is narrow, however, the judges of that court could conceivably have little
89. See supra notes 37-43 and accompanying text; see also Glidden Co. v. Zdanok, 370 U.S.
530, 584 (1962) (extra time required for specialized judges to familiarize themselves with new subject area).
90. Se, e.g., HRUSKA REPORT, supra note 22, at 234-35 (concluding that specialization is undesirable because "quality of decision-making would suffer as the specialized judges become subject
to tunnel vision").
91. Rifkind,supra note 67, at 425.
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exposure to areas of the law that may affect, or be affected by, the areas
92
of the court's specialization.
Additional problems are associated with having only one appellate
court decide all appeals within a substantive area of law. When many
courts of appeals decide an issue, a consensus generally develops. Early
decisions that are at odds with that consensus may be overruled and
thereby "corrected." Furthermore, disagreements among circuits may
lead the Supreme Court to review the issue. 93 If there is only one appellate court hearing cases in a given area, however, errors may be less
obvious. Finally, the court may be burdened initially with an unusually
heavy caseload. In patent law, for example, the law often has varied
from circuit to circuit. Issues that have already been decided in some of
the circuits now will probably be relitigated in an attempt to obtain a
definitive opinion from the Federal Circuit. Consequently, cases that
might not have been brought under the previous jurisdictional scheme
now may be brought before the Federal Circuit.
III.
THE UNITED STATES CLAIMS COURT
A. Jurisdiction
The jurisdiction of the United States Claims Court is essentially the
same as that of the former Court of Claims. 94 The only substantive dif-
ference is that the Claims Court has been given "exclusive jurisdiction"
to grant declaratory judgments and other equitable relief on contract
92. The Federal Circuit does have a few built-in generalizing mechanisms. Judges of the
Federal Circlsit, for example, can sit by designation in other circuits. 28 U.S.C. § 291 (1976). This
will expose them to other areas of the law. In addition, cases that involve both patent law violations and unlawful import trade practices, which are jurisdictional areas that the Federal Circuit
acquired when it assumed jurisdiction over the cases traditionally assigned to the former Court of
Customs and Patent Appeals, may require the court to consider other kinds of unfair trade cases.
See Petrowitz, supra note 63, at 557 (arguing that although the subject matter of the new court is
highly technical, cases coming before the court will be sufficiently varied to avoid specialization); see
also 28 U.S.C. § 1543 (1976 & Supp. IV 1980) (Court of Customs and Patent Appeals to review
final determinations of U.S. International Trade Commission made under § 337 of Tariff Act of
1930, 19 U.S.C. § 1337 (1982), relating to unfair trade practice in import trade). Furthermore, the
judges on the new court may be exposed to other areas of law when actions not within the court's
jurisdiction are joined with those actions over which it has jurisdiction. For example, the court may
hear appeals of nonpatent actions that originally were joined with patent claims in the district
courts as well as appeals of district court decisions that involved nonpatent actions and patent
counterclaims. See RECORD, supra note 3, at 748-5 1.
93. Intercircuit conflict can aid the Supreme Court in its interpretation of the law and allow
it to make a clear and well-reasonedjudgment. Wallace, supra note 63, at 927. The Supreme Court
is able to make a better informed analysis when it has the benefit of the differing views of circuit
judges. Id at 929. The intercircuit conflicts serve as "laboratories" in which different theories are
formed upon which the Supreme Court Justices can rely. Id
94. Compare 28 U.S.C. § 1491 (1976 & Supp. IV 1980) (granting jurisdiction to provide entire
remedy and to complete relief afforded by judgment by issuing orders) with Federal Courts Improvement Act § 133 (amending 28 U.S.C. § 1491 (1976)) (new § (3) added providing that "the
court shall have exclusive jurisdiction to grant declaratory judgments and such equitable and extraordinary relief as it deems proper.").
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FEDERAL COURTS IMPROVEMENT ACT
claims prior to award. 95 This is similar to the authority that Scanwell
Laboratories, Inc. v. Shafer 96 and its progeny accorded to the United
States District Courts in many circuits. In Scanwell the United States
Court of Appeals for the District of Columbia was the first circuit to
grant standing to disappointed bidders who sought to enjoin the award
or implementation of government contracts. 9 7 Most circuits that have
since considered the issue have followed the court's decision in
Scanwell.98
Although the Federal Courts Improvement Act provides that the
Claims Court's jurisdiction to render equitable relief prior to award is
"exclusive," the legislative history confuses the plain meaning of the
statutory language. The legislative history suggests that Congress intended to deny such jurisdiction to the boards of contract appeals, but
not to the district courts.99
Litigation to determine the division of Scanwell jurisdiction between
the Claims Court and the district courts commenced on the fourth day
of the Claims Court's existence. InJohn C Grimberg Co. v. United States, 100
95. Federal Courts Improvement Act § 133(a)(3) (amending 28 U.S.C. § 1491).
96. 424 F.2d 859 (D.C. Cir. 1970).
97. Id at 876.
98. See Hayes Int'l Corp. v. McLucas, 509 F.2d 247, 257 (5th Cir.) (unsuccessful bidder for
government contract has standing to complain), cert. denied, 423 U.S. 864 (1975); William F. Wilke,
Inc. v. Department of Army, 485 F.2d 180, 182 (4th Cir. 1973) (disappointed bidder on government
contract has standing to contest award to next lowest bidder whose bid was tardy, although district
court properly denied injunctive relief); Merriam v. Kunzig, 476 F.2d 1233, 1240 (3d Cir.) (landlord as unsuccessful bidder about to lose government tenants by grant of award to another has
standing to sue), cert. denied, 414 U.S. 911 (1973); Davis Assocs. v. Department of HUD, 373 F.
Supp. 1256, 1263 (D. N.H.) (unsuccessful bidder has standing to assert instant claim although Secretary of HUD under no duty to award contract to housing contractor and action not reviewable
under APA),afd, 498 F.2d 385, 388 (1st Cir. 1974); Pace Co. v. Department of Army, 344 F. Supp.
787, 789 (,V.D. Tenn.) (next lowest bidder for army contract had standing to seek judicial review of
award of contract to bidder who deliberately understated specifications), remanded, 453 F.2d 890
(6th Cir. 1971), cert. denied, 405 U.S. 974 (1972). Prior to Scanwell, disappointed bidders had no
standing to sue because of the Supreme Court's decision in Perkins v. Lukens Steel Co., 310 U.S.
113 (1940). In Perkins, the Court held that federal bidding procedures were for the benefit of the
public and did not confer private rights on the bidder. Although Perkins has not been overruled,
Scanwuell and its progeny indicate that subsequent developments, such as the enactment of the Administrative Procedure Act, have superseded its holding. See Scanwell Labs., Inc. v. Shaffer, 424
F2d 859, 866-73 (D.C. Cir. 1970). The Second Circuit recently followed Scanwell, upholding jurisdiction in the district courts in the postaward context. The court stated that Congress, in enacting
the Federal Courts Improvement Act had explicitly approved the Scauwell doctrine. See B.K. Instrument, Inc. v. United States, 715 F.2d 713, 721-23 (2d Cir. 1983). Prior to enactment of the
Federal Courts Improvement Act, no distinction had been made in the Scanwell line of cases between cases brought before the contract was awarded and those brought after the contract was
awarded.
99. See HOUSE REPORT, supra note 5, at 43 ("The Committee is satisfied by clothing the
Claims Court with enlarged equitable powers [re Scanwell cases] not to the exclusion of the district
courts."); SENATE REPORT, supra note 20, at 23 ("Since the court is granted jurisdiction in [the
&canwell]area, boards of contract appeals would not possess comparable authority pursuant to the
last sentence of Section 8(d) of the Contract Disputes Act.").
100. United States v. John C. Grimberg Co., 1 Cl. Ct. 253 (1982), afd, 702 F.2d 1362 (Fed.
Cir. 1983) (en banc).
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two plaintiffs filed suit in the Claims Court seeking to enjoin the award
of contracts, only to learn at the hearing on their motion for a temporary restraining order that the awards had already been made. The
Claims Court held that it had no jurisdiction to grant equitable relief
after an award.101 It then transferred the case to the U.S. District Court
for the District of Columbia pursuant to the authority granted by the
Act. 102
The Federal Circuit affirmed in a seven to four decision.10 3 After an
exhaustive analysis of the statutory and legislative history, the court concluded that in using the term "claim" in the jurisdictional statute, Congress intended to refer only to actions commenced in the Claims Court,
0 4
and not to accrued claims that had been asserted in any other forum.
The court held that the statute did not confer jurisdiction in cases in
which the bidder waited until after the award was made to file an action
in the Claims Court, even if he had filed a claim with a contracting
officer prior to the award. 105 Because the disappointed bidders in
Grimberg had not filed suit until after the contract was awarded, the
Claims Court had no jurisdiction over their claims. 106
The dissenters in Gr'mberg protested that the Federal Circuit's decision
resulted in an "illogical" bid protest procedure and encouraged "protective litigation by disappointed bidders."' 0 7 Because disappointed bidders often do not know precisely when an award is made, they may not
know whether the Claims Court has lost jurisdiction. To prevent such a
loss from occurring, a bidder could file suit too early, and thereby "end
up having sued to enjoin an award to himself."' 0 8
101. Id at 256.
102. Federal Courts Improvement Act § 301 (to be codified at 28 U.S.C. § 1631). Section 301
provides:
[W]henever a civil action is filed in a court . . . and that court finds there is a want of
jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal
to any other such court in which the action or appeal could have been brought at the time
it was filed or noticed.
Id
103. United States v. John C. Grimberg Co., 702 F.2d 1362 (Fed. Cir. 1983) (en banc).
104. Id at 1366.
105. Id at 1372-74.
106. Id at 1374.
107. Id at 1379 (Kashiwa, J., dissenting). Judge Nichols filed a concurring opinion, conceding
that the mandate of strict construction of the Supreme Court's review of statutes granting the
government's consent to suit compelled the majority's view. Id at 1377 (Nichols, J., concurring);
see, e.g., United States v. Mitchell, 445 U.S. 535, 538 (1980) ("It is elementary that '[t]he United
States, as sovereign, is immune from suit save as it consents to be sued..., and the terms of its
consent to be sued in any court define that court's jurisdiction to entertain the suit.'" (citations
omitted)), aftd, 103 S. Ct. 2961 (1983); United States v. King, 395 U.S. 1, 4 (1969) ("A waiver of
sovereign immunity 'cannot be implied but must be unequivocally expressed.' "). He concluded,
however, that the majority opinion "achieves an insignificant and absurd result." United States v.
John C. Grimberg Co., 702 F.2d 1362, 1378 (Fed. Cir. 1983) (en banc) (Nichols, J., concurring).
108. United States v. John C. Grimberg Co., 702 F.2d 1362, 1379 (Fee. Cir. 1983) (en banc)
(Nichols, J., concurring).
FEDERAL COURTS IMPROVEMENT ACT
1984]
The Federal Circuit upheld the transfer of Grimberg to the district
court, rejecting the government's argument that the district courts no
longer had Scanwell jurisdiction after the enactment of the Federal
Courts Improvement Act.10 9 Although the court expressly refrained
from ruling on the district court's jurisdiction in either preaward or
postaward cases, leaving that decision to the district court itself, it found
no absolute barrier to such jurisdiction that would support vacating the
Claims Court's action in transferring the case. 110 Indeed, the Federal
Circuit, citing the legislative history, stated that in its view the district
courts retain jurisdiction in both preaward and postaward cases."II If
the Federal Circuit's view were adopted, bidders could avoid the problem of not knowing whether a contract had been awarded by suing in
112
the first instance in the district court.
At least one district court has held, however, that it no longer had
jurisdiction over preaward Scanwell cases. 113 In Opal Manufacturing Co. v.
UMC Industries, Inc., 114 the District Court for the District of Columbia
found that section 133(a)(3) of the Federal Courts Improvement Act
clearly provides the Claims Court with "exclusive jurisdiction" over
preaward Scanwell claims. 1 5 Accordingly, the court found that when the
language of the statute is clear, recourse to the legislative history is unnecessary. 1' 6 Although this is an accurate statement of the relevant
principles of statutory construction, combined with the Claims Court's
decision in Grimberg it results in a scheme that is even more irrational
than the one the concurring opinion in Grimberg envisioned. 1 7 For example, a bidder from California who erroneously believes that no award
has been made 18 may undertake the substantial expense of seeking a
temporary restraining order in a court three thousand miles away only
to be sent back to California if the government announces at the hearing
that the award had been made prior to filing. 1 9 The prospect of being
bounced from court to court, wasting both time and money, may dimin109.
110.
Id at 1374-76.
Id at 1377.
111.
Id at 1374-76.
112.
This course of action, however, can only be followed if the claim brought is for less than
$10,000. 28 U.S.C.A. § 1346(a)(3) (West Supp. 1983).
113.
See Opal Mfg. Co. v. UMC Indus., Inc., 553 F. Supp. 131 (D.D.C. 1982). Postaward
jurisdiction in district courts was explicitly upheld in American Dist. Tel. v. Department of Energy,
555 F. Supp. 1244 (D.D.C. 1983).
114.
553 F. Supp. 131 (D.D.C. 1982).
115.
Id at 133.
116.
117.
Id
See United States v. John C. Grimberg Co., 702 F.2d 1362, 1379 (Fed. Cir. 1983) (en
bane) (Nichols, J., concurring).
118.
It is evident from the facts of Grimberg that bidders often are not informed promptly when
an award has been made to someone else. Id at 1364.
119.
Although Claims Court judges can travel, see Federal Courts Improvement Act § 115
(amending 28 U.S.C. § 456), they are not likely to do so for hearings on temporary restraining
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 33:385
ish bidders' enthusiasm for undertaking expensive litigation to protect
1 20
rights recognized by Congress and the courts.
The division of Scanwell jurisdiction that has developed in the decisions to date is unworkable. It makes no sense to allow the Claims Court
to "afford complete relief"'121 over preaward claims while compelling litigation in two courts in the postaward context.122 Furthermore, if jurisdiction over such injunctive relief is to be concurrent with the
jurisdiction of the district courts, it must be entirely concurrent in order
to prevent the need for expensive guesswork on the part of litigants:
both the district courts and the Claims Court should have jurisdiction
over all disappointed bidder cases. Alternatively, to prevent forum
shopping all such jurisdiction should be concentrated in one court. The
jurisdictional chaos that now exists deserves Congress's prompt
attention.
B. Procedure
Most of the Act's changes in procedure were designed to upgrade the
court. The former Court of Claims had been something of an anomaly.
It handled both the trial and the appellate stages of the cases that came
before it, and there was a degree of specialization among its sixteen trial
judges.123 In addition, the seven article III judges of the Court of Claims
functioned more as appellate judges, reviewing the recommendations of
their own trial judges. Review of the seven judges' decisions, in turn,
was only by writ of certiorari in the Supreme Court. 24 The seven article
III judges, however, were also trial judges. They, not the trial judges,
had the sole power to enter final judgments and to rule on dispositive
motions. 125
The Federal Courts Improvement Act separates the trial and appelorders or preliminary injunctions, particularly when it could be found that the court has no jurisdiction over the case.
120. See supra note 98.
121. Federal Courts Improvement Act § 133(a)(3) (amending 28 U.S.C. § 1491 (1976)).
122. Id Bid preparation costs can only be awarded by the Claims Court if the claim is for
more than $10,000. See United States v.John C. Grimberg Co., 702 F.2d 1362, 1377 n.23 (Fed. Cir.
1983) (en banc). It is possible, of course, that Congress was trying to make postaward contests
difficult; indeed, they are difficult to win in any event. Cf Wheelabrator Corp. v. Chafee, 455 F.2d
1306, 1317 (D.C. Cir. 1971) (even when matter is pending before General Accounting Office, injunction preventing opening of bids on government contract is not appropriate unless there is high
probability of success on merits). Given the language in the legislative history, however, it seems
more likely that the problem is one of drafting.
123. See Jones & Singer,.supra note 11, at 136 (citing specialization as enabling Court of Claims
to handle complicated cases).
124. 28 U.S.C. § 1255 (1976), repealed by Federal Courts Improvement Act § 123. Direct appeals to the Supreme Court from decisions holding any act of Congress unconstitutional were also
permitted. 28 U.S.C. § 1252 (1976). There was no review of Court of Claims decisions by any
federal appellate court other than the Supreme Court.
125. See Ct. Cl. R. 147 (judgment by court), 54 (dispositive motions).
1984]
FEDERAL COURTS IMPROVEMENT ACT
late functions of the Court of Claims. It vests the appellate function of
the former Court of Claims in the Federal Circuit 26 and the trial functions of the former Court of Claims in the United States Claims
Court,12 7 a legislative court 28 created under article I. The Act gives the
new court broad powers, including certain equitable powers.129 In addition, the Act provides certain statutory protections for the Claims Court
judges that are similar to, but not as strong as, the protections afforded
to article III judges. For example, the President, with the advice of the
130
The
Senate, appoints the Claims Court judges for fifteen-year terms.
nemisconduct,
incompetency,
only grounds for removal from office are
glect of duty, engaging in the practice of law, or physical or mental
disability. 13 1 These grounds are broader, however, than the grounds for
13 2
removal of article III judges.
Unlike the Court of Claims judges, the article I judges in the new
Claims Court have the power to enter final judgments and to rule on
dispositive motions. 133 Furthermore, by statute, the Federal Rules of
Evidence apply. 134 The Act also gives the court authority to adopt its
own rules of procedure. 35 It has adopted a variation of the Federal
126. Federal Courts Improvement Act § 127 (amending 28 U.S.C. § 1295 (1976)).
127. Id § 133 (amending 28 U.S.C. § 1491 (1976)).
128. For a definition of legislative courts, see infira note 149.
129. Federal Courts Improvement Act § 133 (amending 28 U.S.C. § 1491 (1976)).
130. Id § 105(a) (amending 28 U.S.C. §§ 171-173 (1976)).
131. Id A majority of judges of the Federal Circuit must concur on the removal of Claims
Court judges, but only after the judge has had an opportunity to be heard. Id
132. Article III judges "hold their offices during good behavior" and may only be removed by
impeachment. The grounds for impeachment are "treason, bribery, and other high crimes and
misdemeanors." U.S. CONST. art. III, § 4. The power to impeach civil officers of the United States
is vested in the House of Representatives. Id art. I, § 2, cl. 5. Impeachments are tried in the
Senate, and a two-thirds vote of the members present is required for conviction. Id art. I, § 3, cl. 6.
To date, over 50 impeachment proceedings have been initiated in the House of Representatives.
The most recent proceedings were initiated against President Richard Nixon. Only 12 cases, including the impeachment proceedings against President Andrew Johnson, have reached the Senate.
Only four persons, all federal judges, have actually been convicted. The most recent conviction was
that of Judge Halsted L. Ritter, District Judge of the Southern District of Florida, in 1936, on
charges of misbehavior in office. For a discussion of impeachment, see HOUSE COMM. ON THE
JUDICIARY, 93D CONG., IST SESS., IMPEACHMENT: SELECTED MATERIALS (Comm. Print 1973);
RAOUL BERGER, IMPEACHMENT: THE CONSTITUTIONAL PROBLEMS (1973).
The Judicial Councils Reform and Judicial Conduct Disability Act of 1980, Pub. L. No. 96-458,
94 Stat. 2035 (to be codified at 28 U.S.C. § 1 note), provides a means other than impeachment to
investigate and resolve allegations of disability or misbehavior of federal judges. Under this Act,
the judicial council of the circuit hears complaints subject to review by the Judicial Conference of
the United States. The Act authorizes dismissal of a complaint, a certification of disability, a request that the judge voluntarily retire, an order that no further cases be assigned to the judge,
censure or reprimand, and referral to the House of Representatives for impeachment if justified.
For a discussion of the Act, see Neisser, The New FederalJudicialDisciplineAct: Some Questions Congress
Didn't Answer, 65 JUDICATURE 142 (1981). Cf. Chandler v. Judicial Council of the Tenth Circuit,
398 U.S. 74 (1970) (reviewing actions ofjudicial council taken against district judge deemed unable
to discharge duties of office efficiently).
133. Federal Courts Improvement Act § 133(a) (amending 28 U.S.C. § 1491(a) (1976)).
134. Id § 142 (amending FED. R. EVID. 1101(a)).
135. Id § 139(b)(1) (amending 28 U.S.C. § 2503 (1976)).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 33:385
Rules of Civil Procedure, 136 numbering its rules to correspond to the
Federal Rules. Inapplicable rules have been omitted and other rules
have been modified to correspond to the court's special practice. 137 As
was anticipated, the court has adopted rule 52(a) of the Federal Rules of
Civil Procedure, which provides for review of the court's factual determinations on the "clearly erroneous" standard, 38 a departure from the
standard under which the former Court of Claims reviewed the decisions of its trial judges.1 39 In addition, the court has adopted the federal
discovery rules, including rule 37, which provides for sanctions for failure to make discovery. 140 It has also adopted counterclaim and crossclaim rules, including rule 13(b), which governs permissive counterclaims and third party practice rules.' 4 ' The latter correspond to the
42
third party practice rules of the former Court of Claims.1
The Federal Courts Improvement Act makes no reference to the specialization of Claims Court judges. As a result, it is uncertain whether
the assignment of judges will be based on expertise, as it has been, to
some extent, in the past. 143 The specialization of Claims Court judges,
however, is unlikely for several reasons. First, specialization has traditionally been disfavored.' 44 Second, although some specialization of
trial judges in the Court of Claims has been considered acceptable be136. See General Order No. 1, 1 Cl. Ct. xxi (1982) (adopting rules of procedure for Claims
Court).
137. See CL. CT. R. 9 (unlike under Federal Rules, complaint must include citations to statutes,
regulations, or executive orders on which claim is founded).
138. CL. CT. R. 52(a).
139. The article III judges in the Court of Claims had given "due regard" to the findings of
fact of the trial judges, but were willing to overturn those findings if they disagreed. As a practical
matter, such findings were rarely disturbed. See Jones & Singer, supra note 11, at 137;JudcialConference, supra note 10, at 524-25 (remarks of Judge Marion T. Bennett). Jones and Singer had expected the move toward the clearly erroneous standard to come from the Federal Circuit because
that court is an article III court. Jones & Singer,supra note 11, at 137. Indeed, the Supreme Court
in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), identified review
of a court's decisions under the "clearly erroneous" standard as one of the "essential attributes" of
the judicial power of the United States-a power that only article III courts can exercise. Id at 8487. Therefore, the article I Claims Court cannot mandate the standard of review that article III
appellate courts must use.
140. CL. CT. R. 37.
141. CL. CT. R. 13(b).
142. The third party practice rules of the former Court of Claims were promulgated pursuant
to the authority granted in 41 U.S.C. § 114 (1976). See also Federal Courts Improvement Act
§ 160(a)(14) (amending 41 U.S.C. § 114 (1976)).
143. See, e.g., Jones & Singer,supra note 11, at 138 (Congress expressed intention to discourage
specialization at appellate level, but not at trial level, where specialization has been beneficial);
JudicialConference, supra note 10, at 529 (remarks of Judge Philip R. Miller) (Congress intended not
to have specialization of judges, but in past specialization has proved efficient).
144. See HRUSKA REPORT, supra note 22, at 234-36; Rifkind, supra note 67, at 425. But see H.
FRIENDLY, supra note 66, at 153-71 (criticizing arguments against creation of specialized courts).
The Hruska Commission and other commentators have focused explicitly on appellate courts. The
same considerations, however, may not apply to trial courts. It is noteworthy that one highly specialized article III "trial" court already exists-the Court of International Trade. 28 U.S.C. § 251
(1976 & Supp. V 1981).
1984]
FEDERAL COURTS IMPROVEMENT ACT
cause more generalist judges rendered the final judgments, in the Claims
1 45
Court the trial judges will now be responsible for final judgments.
Third, as a practical matter, any trial judges serving on the Court of
Claims who are perceived as specialists may not continue long in office,
and could easily be replaced by more generalist judges. The Federal
Courts Improvement Act provides for those trial judges with less than
fifteen years experience to continue in office for fifteen years or until
October 1, 1986, whichever is earlier.146 Furthermore, trial judges with
more than fifteen years experience will not automatically become judges
of the Claims Court. 147 Finally, to the extent that the Claims Court
judges perceive their article I status as the result of overspecialization,
14
the trend may be away from specialization.
C
L
Analysis."Is the Claims Court Constitutional?
Background
Pursuant to its legislative power, Congress has designated the Claims
Court an article I court. 149 This designation has been criticized as unwarranted, 50 and there have been suggestions that it is unconstitutional.' 5 1 Most commentators who have considered the issue, however,
have concluded that the Claims Court's article I status is constitutional
145. SeeJudical Conference, supra note 10, at 529 (remarks of Judge Philip R. Miller).
146. Federal Courts Improvement Act § 167(b) (amending 28 U.S.C. § 171 (1976)).
147. Id
148. Seejuacial Conference, supra note 10, at 526 (remarks of Judge Marion T. Bennett). The
assumption that judges would prefer to be article III judges is reasonable given the lifetime tenure
and salary protection of that status.
The Court of International Trade is a specialized article III trial court, but the judges on the
court do not specialize within the speciality. By comparison, there is a perception that some of the
Claims Court judges have specialized in adjudicating certain types of claims against the United
States. Although specialization is not an explicit bar to article III status, a move away from such
specialization may make Congress more willing to confer article III status.
149. In article III the Constitution specifically provides that judicial power will vest in a court
system that consists of one Supreme Court and "such inferior courts as-the Congress may from time
to time ordain and establish." U.S. CONsT. art. III, § 1. These courts are known as article III
courts. See Redish, Legislative Courts, Administrative Agencies, and the Northern Pipeline Decision, 1983
DUKE L.J. 197, 197; Note,Jursdicionof Bankruptcy Courts-Bankrupty Reform Act's broadgrant ofjurisdiction violates Article III, 60 U. Dir. J. URB. L. 289, 290 (1983); Case Note, Article III-A Clear Test for
the ConstitutionaltyofNon.Article III Courts, 18 LAND & WATER L. REV. 313, 314 (1983); Case Note,
The Scope of Article I CourtJurisdiction Abstract Principleson PracticalConsiderations, 10 OHIo N.U.L.
REV. 361, 361 (1983). Congress also has the authority to create legislative courts. These courts are
generally identified as article I courts because Congress creates them under the necessary and
proper clause, U.S. CONsT. art. I, § 8, cl. 18, to aid it in carrying out its duties as enumerated in
article I of the Constitution. See Redish, supra, at 198. The Supreme Court first acknowledged the
concept of the legislative court in American Ins. Co. v. Canter, 26 U.S. (I Pet.) 511 (1828). See
Redish, supra, at 198; Case Note, The Scope of Article I CourtJurisdiction:Abstract Principlesor Practical
Considerations, supra, at 361.
150. See, e.g.,JudicialConference, supra note 10, at 525-26 (remarks of Judge Marion T. Bennett)
(arguing that Claims Court handles complex cases with high stakes and should, therefore, be article
III court).
151. See Zengerle & Martin, supra note 20, at 22.
408
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 33:385
because of the well-established doctrine that Congress, when it waives
sovereign immunity and consents to suits against the United States, can
attach conditions to the exercise of the right to sue. 152 This doctrine,
however, is not as clear as the commentators suggest. Recently, in Northern Peline Construction Co. v. Marathon Pie Lzne Co., 153 the Supreme
Court held the bankruptcy courts unconstitutional,1 54 thus casting
doubt on the constitutionality of the Claims Court.
The status of the former Court of Claims had been debated in Congress and in the Supreme Court for much of this century. In 1933, the
Supreme Court declared that the Court of Claims was an article I court
because it considered only controversies that were also susceptible of
congressional or executive determination. 55 In Williams v. United
States, 156 the Court reasoned that because one branch of government
cannot delegate its power to another branch, an article III court may
not adjudicate claims against the United States. 5 7 Therefore, the Court
of Claims could only be an article I court.
Twenty years later, in 1953, Congress explicitly declared its intention
to make the Court of Claims an article III court notwithstanding the
decision in Williams, and made provisions for Court of Claims judges to
sit by designation on other article III courts.158 Almost ten years later, in
Glidden Co. v. Zdanok, 1 a three justice plurality refused to reaffirm the
Williams reasoning and held instead that the Court of Claims was an
160
article III court.
Glidden involved a challenge to the constitutionality of a judgment
rendered by a Court of Claims judge, sitting by designation on a federal
district court.' 6' The plurality in Glidden held that suits against the
152. See id;see also United States v. Testan, 424 U.S. 392, 399 (1976) ("Ihe United States, as
sovereign, 'is immune from suit save as it consents to be sued ... and the terms of its consent to be
sued in any court define that court's jurisdiction to entertain the suit.' ") (quoting United States v.
Sherwood, 312 U.S. 584, 586 (1941)).
153. 458 U.S. 50 (1982).
154. Id at 87.
155. Williams v. United States, 289 U.S. 553 (1933). The Williams opinion followed the reasoning of Ex pare Bakelite Corp., 279 U.S. 438 (1929), in which the Court had held that the Court
of Customs Appeals was an article I court. Id at 460. In Ex pare Bakelite Corp., the Court explained that Congress can create article I courts to examine and determine matters that are susceptible ofjudicial determination, but that do not, by their nature, require it. Id at 451. Further, the
opinion stated that Congress has complete control over the mode of determining such matters. Id
156. 289 U.S. 553 (1933).
157. Id at 580-81.
158. Id at 531-32. A Court of Claims judge may sit by designation on other federal courts
under 28 U.S.C. § 293(a) (1976).
159. 370 U.S. 530 (1962).
160. I1d at 584. Only seven Justices participated in the Glidden decision. Justice Clark, joined
by ChiefJustice Warren, concurred in the judgment, id at 585 (Clark, J., concurring), while Justice
Douglas, joined by Justice Black, dissented. Id at 589 (Douglas, J., dissenting).
161. A consolidated case presented the identical question with respect to judges of the Court of
Customs and Patent Appeals. See id at 532.
FEDERAL COURTS IMPROVEMENT ACT
1984]
United States are "controversies to which the United States shall be a
party" within the meaning of article 111.162 Although the two justices
who concurred in the decision objected to overruling Williams, they concluded that most of the Court of Claims's jurisdiction was comprised of
article III cases.1 63 Both the plurality and the concurrence, therefore,
recognized that the jurisdiction of the Court of Claims consisted largely
of cases or controversies within the meaning of article 111.164 The plurality conceded that Congress had some authority to commit inherently
judicial questions to article I courts.' 65 It left unanswered, however, the
question of the extent of such authority; having decided that the Court
of Claims was an article III court, the plurality found it unnecessary to
66
consider the issue further.'
In Northern Peline the Supreme Court again left open the extent of
Congress's authority to commit inherently judicial controversies to nonarticle III tribunals. In a plurality decision, 6 7 the Supreme Court
struck down the broad grant of jurisdiction to the bankruptcy courts
under the Bankruptcy Act of 1978.168 The plurality held that the
breadth of the jurisdictional grant, which included adjudication of controversies between individuals, was unconstitutional in an article I
court. 169
The plurality in Northern Pipeline relied heavily on the "public rights"
doctrine established in Murray's Lessee v. Hoboken Land & Improvement
Co. 170 This doctrine provides that although private rights can only be
adjudicated in article III courts, the determination of public rights, to
some extent, can be delegated to article I courts. 17' The difficulty is in
162.
Id at 572-75. Previous interpretations of the quoted language from article III had limited
the judicial power to actions in which the United States was a party-plaintiff. See id at 564-65.
163. Id at 586-87 (Clark, J., concurring). The concurring Justices also objected to the overruling of Exparle Bakelite Corp., 279 U.S. 438 (1929). Glidden Co. v. Zdanok, 370 U.S. 520, 585
(1962) (Clark, J., concurring). The part of the court's jurisdiction that was not seen as article III
jurisdiction consisted of a small number of congressional reference cases. Both the plurality and the
concurrence suggested that the court could simply decline to consider such cases on the ground
that, as an article III court, it could not issue advisory opinions. Id at 582-83, 587.
164. Id at 572-75, 586-87.
165.
Id at 543-46.
166.
Id at 549.
167. Justices Marshall, Blackmun, and Stevens joined in the plurality opinion, which was written by Justice Brennan. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50
(1982). Justice Rehnquist, with whom Justice O'Connorjoined, concurred in the judgment, but did
not join in the plurality opinion. Id at 89. Justice White, joined by the Chief Justice and by
Justice Powell, dissented. Id at 92. The Chief Justice also wrote a separate dissent. Id
168. Pub. L. No. 95-598, 92 Stat. 2549 (1978) (codified at I1 U.S.C. §§ 101-151326 (1982) and
in scattered sections of 28 U.S.C.).
169. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 87 (1982).
170. 59 U.S. (18 How.) 227, 236-38 (1855).
171. Id at 238;se Crowell v. Benson, 285 U.S. 22, 50-51 (1931) (recognizing that Congress has
authority to establish legislative or article I court to determine issues concerning interstate and
foreign commerce, taxation, immigration, public lands, public health, post office, pensions, and
veterans); Ex parle Bakelite Corp., 279 U.S. 438, 451 (1929) (legislative courts determine matters
410
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 33:385
defining "public rights." Conceding that the Court had not definitively
172
explained "the distinction between public rights and private rights",
the plurality stated that at a minimum, public rights can only arise
when the government is a party.' 73 The plurality did not consider the
issue beyond that finding, because the bankruptcy courts clearly decide
controversies in which the government is not a party.' 74 The plurality
did suggest, however, that there might be limits on the public rights
doctrine even when the government is a party. It said that public rights
extend "only to matters arising 'between the Government and persons
subject to its authority in connection with the performance of the constitutional
functions ofthe executive or legislative departments.' ,,175 Further refinement of
this definition could lead to additional limits on the power of Congress
to assign jurisdiction to non-article III tribunals.
The plurality's opinion in Northern Pipeline makes it clear that two important questions that bear on the constitutionality of the Claims Court
remain unanswered. First, the extent of Congress's authority to assign
essentially judicial functions to non-article III tribunals is unclear. Second, there is no clear definition of public rights, a concept that could
help define the scope of that congressional authority.
In addition to its reliance on the public rights doctrine, a second
ground for the plurality's opinion in Northern Pipeline was that the bank176
ruptcy courts were not mere adjuncts to the article III district courts.
The plurality reasoned, first, that the bankruptcy courts did not determine only congressionally created rights, but also determined state-created and constitutional rights. 177 The plurality conceded that the
arising between government and other parties that do not require, but are susceptible to, judicial
determination).
172. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 69 (1982).
173. d. In a footnote, the plurality suggested that the presence of the government as a party
was a necessary but not a sufficient means of distinguishing between private and public rights. Id.
at 69 n.23.
174. Id at 71-72.
175. Id at 67-68 (quoting Crowell v. Benson, 285 U.S. 22, 50 (1932) (emphasis added)).
176. Id. at 76-77. In Northern Pipeline the plurality stated that the constitutionality of "adjuncts" to article III courts rests on two principles. First, Congress possesses the authority to assign
some functions historically performed by judges to an adjunct in the adjudication of federal substantive rights created by Congress. Id at 80; see also Crowell v. Benson, 285 U.S. 22, 51 (1931)
(article III courts not required to make all factual determinations to maintain essential attributes of
judicial power). Second, there must be sufficient limitation on the functions of the adjuncts to
ensure that the article III court retains the essential attributes of judicial power. Northern Pipeline
Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 81 (1982); see also United States v. Raddatz,
447 U.S. 667, 681-82 (1980) (ultimate authority to make final determination remains with article
III judge).
177. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 83-84 (1982). The
plurality stated that there is a critical distinction between federal statutory rights and constitutionally recognized rights. Id at 83. Provisions for special tribunals and adjuncts are incidental to
Congress's power to define the right created, but when the right is constitutional, Congress's attempts to assign traditional judiciary functions are unwarranted encroachments of judicial powers
reserved in the Constitution for article III courts. Id at 83-84.
1984]
FEDERAL COURTS IMPROVEMENT ACT
Constitution allows certain elements of adjudication, such as factfinding, to be delegated to non-article III tribunals in cases in which the
rights at issue were created by congressional enactment. 178 It stated,
however, that the Constitution does not permit such delegation in cases
in which the rights are guaranteed by the Constitution or created by
anything other than congressional enactment. 179 Second, the bankruptcy courts clearly exercise all of the essential attributes of judicial
power, including jurisdiction over a broad range of questions, equitable
powers, and the power to enter final judgments.18 0
The concurring justices did not join in the plurality's analysis.
Rather, they concluded that because the bankruptcy courts exercised
jurisdiction over state-created rights, the Constitution required that they
82
be article III courts.' 8' While this is therefore a holding of the Court,
the reasoning of the plurality may become important if the constitutionality of the Claims Court is challenged. Such a challenge would present
squarely the issues that the Court has so far declined to decide.
.
Public rzghts and the Claims Court
The first question to be resolved in considering the constitutionality of
the Claims Court is the definition of the term "public rights." Although
the payment of the government's debt is a constitutional function of
Congress in the sense that the Constitution explicitly grants Congress
the authority to pay debt, 8 3 that function is different from other article
I functions such as the power to declare war 8 4 or the power to regulate
commerce. 8 5 In the latter cases, Congress is exercising a power that is
unique to a sovereign. The payment of debt, however, is not an obligation that is unique to a sovereign, but is an obligation of any existing
entity-a sovereign, a corporation, or an individual. Although article I
courts may be appropriate courts to consider issues that are unique to
Congress's sovereign powers, they are less appropriate for cases in which
178. Id
179. Id
180, Id
the ordinary
at 83.
at 83-84.
at 84-87. The bankruptcy courts under examination in Northern
/iprinr
exercised all
powers of district courts--they had jurisdiction over all civil proceedings under title 11
or related to title I1, and issued final judgments reviewable only under a "clearly erroneous" standard. Id at 85. By contrast, the power of the agency in Crowell was limited. The agency could
make only narrow factual determinations, could only issue compensation orders under specialized
procedures, and was required to enforce the orders in the district courts. Its orders could be set
aside if they were "not supported by the evidence." Id ; see Crowell v. Benson, 285 U.S. 22, 42-45
(1932).
181. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 89-90 (1982)
(Rehnquist, J., concurring).
182. Id at 90 (Rehnquist, J., concurring); see id at 92 (Burger, C.J., dissenting).
183. U.S. CONST. art. I, § 8, cl. 1.
184.
Id
cl. 11.
185. Id el. 3.
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Congress is merely exercising its inherent authority, without regard to its
status as sovereign. Indeed, the plurality in Northern Pipeline stated that
the notion that Congress can create non-article III courts to determine
any of the issues over which it has authority under article I has been
rejected.186 The plurality noted that although "independent courts are
not required for all federal adjudications,. . . [it is clear] that when Art.
III does apply, all of the legislative powers specified in Art. I and else'
where are subject to it. i87
Claims against the United States, such as the payment of public
debts, implicate private rights to the extent that independent article III
courts should be required to determine such controversies. The distinction between the government's regulatory and proprietary functions illustrates the private rights aspects of claims against the United States.' 8
Purchasing supplies, for example, is a proprietary function, not a regulatory one. It is a function that the government performs as an existing
entity, like other entities with functions to perform, and not a function
performed because of a unique constitutional authority to purchase supplies. In its proprietary capacity, the government deals with citizens in
the same way that individual citizens deal with each other. For example, the government enters into contracts and compensates persons for
damages it causes. The mere fact that the government is a party to a
contract does not reasonably suggest that public rights are implicated.
In fact, the rights at issue are more in the nature of private rights.
Rights, therefore, are most nearly public rights when they involve the
relationship of individuals to the government when the government is
performing a regulatory function assigned to it by the Constitution. 189
Rights are most nearly private rights when they implicate relationships
among private citizens, as in Northern Pipeline, or, when they involve the
186. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 73 (1982).
187. Id
188.
See J. DILLION, A TREATISE ON THE LAW OF MUNICIPAL CORPORATIONS § 109 (5th ed.
1911) (distinguishing between public and private or proprietary rights). See generally Doddridge,
Distinction Between Governmental and Proprietagr Functions of Municipal Corporations, 23 MICH. L. RE%.
325 (1925) (suggesting that distinction in several areas of municipal corporate law should be abolished). But see Note, Municipal Corporations:Objections to the Governmentalor Proprietaq Test, 22 VA. L.
REV. 910 (1936) (advocating restricted use of governmental versus proprietary tests and abolition of
public versus private distinctions).
189. Nevertheless, there may be private rights considerations in government regulatory activities. See supra note 98 and accompanying text. Although the Court has upheld delegations of adjudicatory powers on regulatory issues, see, e.g., Crowell v. Benson, 285 U.S. 22, 54 (1932) (Congress
may use methods necessary to apply standards that relieve courts of burden while preserving their
authority), it has suggested that article III judicial review is required. See Atlas Roofing Co. v.
Occupational Safety & Health Review Comm'n, 430 U.S. 442, 445 n.13 (1977) (decision of administrative tribunal is subject to review in federal courts of appeals). In Northern Pipeline neither the
plurality nor the concurrence considered article III review sufficient. Compare Northern Pipeline
Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 86 n.39 (1982) (plurality opinion) with id at 91
(dissenting opinion).
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FEDERAL COURTS IMPROVEMENT ACT
government in its proprietary capacity. Some of the cases that the
Claims Court hears may fall on the public rights side of this continuum,
but most will be somewhere in the middle or on the private rights side.
Private rights are, therefore, strongly implicated in the Claims Court's
caseload. Arguably, under Northern Pipeline, the Claims Court must be
given article III status.
That the Claims Court's jurisdiction is concerned with private rights
also is evident from the development of Scanwell jurisdiction in the district courts. 90 The enactment of the Administrative Procedure Act
(APA),191 precipitated the recognition that private rights are implicated
in citizens' contracts with the government. Scanwell was one of many
cases decided under the APA that expanded the rights of citizens vis-avis the government. 92 Indeed, the court in Scanwell decided in favor of
standing for disappointed bidders because of the perception that the
APA superseded the Supreme Court's holding in Perkins v. Lukens Steel
Co. 193 that federal bidding procedures were for the benefit of the public
and involved no private rights of the bidder.1 94 Congress's explicit approval of Scanwell and its progeny in enacting the Federal Courts Improvement Act demonstrates congressional recognition of the private
rights aspects of contracting with the government. 95
Finally, there are a number of procedural devices that expand the
Claims Court's authority beyond the expected parameters of an article I
court and that implicate other private rights. 96 One example is third
party practice. The authority to consider third party claims must be
contrasted with the authority to consider counterclaims. Counterclaims
were permitted in the former Court of Claims, at a time when it was
considered an article I court, on the ground that the government could
set as a condition of suit against it the possibility that the claimant
would thereby subject himself to a counterclaim. 97 On the other hand,
third parties have not chosen the article I Claims Court as a forum and
may prefer to adjudicate issues that affect them in an article III district
court. Such issues could involve claims by another citizen or by the
government itself. Claims brought in federal courts by either another
citizen or the government otherwise would have to be brought in an
article III district court. Thus, the third party, with no action of his
190.
191.
192.
193.
See supra notes 96-122 and accompanying text.
5 U.S.C. § 500-706 (1982).
See supra note 98.
310 U.S. 113 (1940).
194.
Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859, 866-68 (1970).
195.
196.
197.
HOUSE REPORT, supra note 11, at 43; SENATE REPORT, supra note 20, at 23.
Federal Courts Improvement Act § 139 (amending 28 U.S.C. §§ 1926, 2501-22 (1976)).
See McElrath v. United States, 102 U.S. 426, 440 (1880) (Congress informs claimant that
privilege of suing government may be met by counterclaim).
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[Vol. 33:385
own, loses the constitutional protections he otherwise would have if he is
subjected to the jurisdiction of the Claims Court.
3.
The Claims Court is not an adjunct
Another basis for the plurality's opinion in Northem Pipeline also suggests that the Claims Court should be an article III court.19 8 There has
been no suggestion that the Claims Court, like the bankruptcy courts, is
a mere adjunct to another court. If there were, however, the suggestion
would fail. Like the bankruptcy courts, the Claims Court is not concerned solely with federal statutory rights, but can determine both pri9
vate rights and constitutionally guaranteed rights.19 Indeed, the right
to make claims against the government is not a statutory right; rather it
is inherent in the article I authority of Congress to pay debts of the
government. 20 0 The operation of legal principles quite apart from any
federal statute may give rise to the debts. Only the manner of determin-
ing the claims is subject to congressional decision.20 1 In that sense,
claims against the United States are not very different from other kinds
of claims brought in federal courts: all require an explicit congressional
grant ofjurisdiction. Absent that grant of jurisdiction, such claims have
no article III protections. 20 2The grant of jurisdiction for claims against
the United States also operates as a waiver of sovereign immunity. It,
however, does not create viable claims where none exist.
Although the Claims Court's jurisdiction is not as broad as that
granted to the bankruptcy courts, the Claims Court exercises a great
deal of judicial power. Furthermore, its authority to consider permissive
counterclaims and third party claims may potentially expand its jurisdiction beyond claims against the United States. The Claims Court can
reconsider all aspects of claims against the United States, and is not
203 It
interest.
direct
a
has
States
United
the
stricted to issues in which
can grant equitable relief, although this authority is limited to the
198. See supra notes 176-80 and accompanying text.
199. Federal Courts Improvement Act § 133 (amending 28 U.S.C. § 1491 (1976)).
200. U.S. CONST. art. I, § 8, cl. 1.
201. Prior to creation of the Court of Claims, 28 U.S.C. §§ 171-75, amended by Federal Courts
Improvement Act § 105 (1982), Congress determined all claims against the United States. The
Supreme Court saw this as a sufficient reason to preclude article III treatment of such claims. See,
e.g., Williams v. United States, 289 U.S. 553, 568-69 (1933) (Congress has discretion to exercise
power directly or delegate to another agency); Eparte Bakelite Corp., 279 U.S. 438, 452 (1929)
(function of Court of Claims belongs primarily to Congress incident to its power to pay debts). In
Glidden Co. v. Zdanok, 370 U.S. 530 (1962), however, the Court rejected its prior reasoning and
looked instead at Congress's intent to create an article III court. Id at 541-43.
202. Article III authorizes but does not obligate Congress to create inferior courts, U.S.
CONsT. art. III, § 2; see Glidden Co. v. Zdanok, 370 U.S. 530, 551 (1962).
203. Federal Courts Improvement Act § 139 (amending 28 U.S.C. §§ 2501-2520 (1976))
(United States Claims Court Procedure).
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FEDERAL COURTS IMPROVEMENT ACT
Scanwell context. 20 4 It can enter final judgments and rule on dispositive
motions, and it can enter limited declaratory judgments. 20 5 Finally, its
decisions are reviewed under the "clearly erroneous" standard. These
factors were all important in Northern Pipeline when the plurality determined that the bankruptcy courts were more than mere adjunct
20 6
courts.
Both grounds that the plurality in Northern Pipeline stated were the
bases for declaring the bankruptcy courts unconstitutional could be the
basis for a finding that the Claims Court's article I status is unconstitutional. Consideration of the constitutionality issue would require that
the Court squarely face the issues left undecided in Glidden and Northern
07
Pzeline.2
Thus, the constitutionality of the Claims Court as an article I court is
questionable. Although it cannot be predicted with certainty whether
the Supreme Court would find the Claims Court's article I status unconstitutional in whole or in part, such a holding would mark a logical
progression from the plurality opinions in Glidden and Northern Pipeline.
Logical as it is, however, it would also mark a bold step in the development of a theory of article I courts. Whether the Court is ready to take
such a step remains to be seen.
CONCLUSION
The Federal Courts Improvement Act is primarily an experiment in
subject matter appellate jurisdiction in the federal courts. The perceived need for a national patent court provided the impetus for the
Act, in which Congress attempted to satisfy that need within the structure of the existing federal judiciary. The result is the United States
Court of Appeals for the Federal Circuit, which possesses jurisdiction
over a number of complex areas of law that will benefit from both specialization and nationwide uniformity. The Federal Circuit has exclusive jurisdiction in only some of those areas, however. It is likely that
Congress will watch the court over the next few years to see if it successfully meets the needs that led to its creation. If the new court is successful, Congress may give it further specialized and exclusive jurisdiction,
204. Seeid § 133(a) (amending 28 U.S.C. § 1491 (1976)) (court has power to grant such equitable and extraordinary relief as it deems proper); supra notes 96-122 and accompanying text.
205, Id § 133 (amending 28 U.S.C. §§ 1491-1507 (1976)).
206, Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 84-87 (1982).
207, Other features of the Claims Court, although not necessarily affecting the court's constitutionality, suggest that it should be an article III court. First, the Claims Court shares its jurisdiction
with the article III courts. &e supra note 167. Second, the former Court of Claims was an article III
court. 28 U.S.C. § 171 (1976), amendedby Federal Courts Improvement Act § 105(a) (1982).
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probably in one or more of the areas now assigned to it on a nonexclusive basis.
Congress should consider carefully the mix of jurisdiction in the Federal Circuit before it expands the court's exclusive jurisdiction. Presently, the jurisdiction of the court consists of highly technical, complex,
and unrelated areas of statutory law. This mix of jurisdiction effectively
requires the judges to specialize in each of these areas-a feat that
would not be demanded of the practitioner. The mix, however, is not
broad enough to result in true generalization of the court. Expansion of
the exclusivity of jurisdiction in one area of the court's jurisdiction
would result in a huge increase in the caseload, making it nearly impossible to maintain all of the jurisdiction now assigned to the Federal Circuit in one court. Removing one or more areas of the new court's
jurisdiction would make it even less generalist than it is now. These
problems must be weighed against the benefits of uniformity and specialization in these areas.
The second court created by the Act, the United States Claims Court,
may be unconstitutional. It is an article I court that arguably determines private rights. It determines claims that citizens make against the
government in the government's proprietary capacity. Furthermore, the
court is not a mere adjunct to another federal court or to Congress. The
court has a unique jurisdictional base with the power to enter final judgments, and it determines issues independently of any waiver of sovereign
immunity. In determining those issues, the court exercises much of the
judicial power of the United States. All of these factors were important
in the Northern Peline plurality's analysis of the article I bankruptcy
courts. It remains to be seen whether a majority of the Supreme Court
will adopt that reasoning and find the Claims Court similarly
unconstitutional.