How To Win Friends and Influence Government Contracts Law:[1] Improving the Use of Amicus Briefs at the Federal Circuit
Jayna Marie Rust[*]
Table of Contents
I.Introduction
II.Brief Overview of the Role of Amicus Briefs in Appellate Litigation
A.Which Amicus Briefs are Valuable
1.Who the Helpful Amici Are
2.Particular Areas Where Amicus Briefs Provide the Most Assistance
B.Amicus Briefs that Courts do not Consider to be Helpful
III.Brief Overview of the Federal Circuit’s Approach to Amicus Briefs
A.Federal Rule of Appellate Procedure 29 and the Federal Circuit’s Local Rule
B.The Federal Circuit’s Commentary on Amicus Briefs
IV.Forgetting What the Other Wants: Why the Use of Amicus Briefs Could Be Better
A.The Federal Circuit Sends Mixed Signals on Its Approach to Amicus Briefs, Ultimately Deterring Amici Participation
1.Federal Circuit Local Rule 29 has not Been Utilized to Appeal to the Government Contracts Community
2.Limited Responses to Amicus Submissions Creates Little to No Incentive for the Government Contracts Community to File Future Amicus Briefs
B.Courts Generally do not Read Briefs with the Types of Arguments That Government Contracts Amici Have Presented to the Federal Circuit
V.Winning to “Our” Way of Thinking: Trying to See Things from the Other’s Point of View
A.The Federal Circuit Should Address Briefs that Amici File and Use Federal Circuit Local Rule 29 to Ask for More Policy Related Briefs
B.The Government Contracts Community Must Provide Briefs that Address what the Court Wants to Hear, Not Just What the Amicus Wants to Say
VI.Conclusion
I.Introduction
When addressing a government contracts group in December 2009,then Chief Judge Paul Michel of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit),noted “that the Federal Circuit does not have the level of amici participation in the government contracts area that it has in the patent and other areas within its jurisdiction.”[2] Chief Judge Michel added that“[amici] participation would help the Federal Circuit understand the ‘downstream,’ or real-world, effects of its prior and/or potential decisions in the Government contracts arena.”[3]
As the former chief judge’s comments point out, government contracts is but one area of jurisdiction for the Federal Circuit. Indeed, the Article III court currently has nationwide appellate jurisdiction over international trade, government contracts, patents, trademarks, federal personnel, veterans’ benefits, public safety officers’ benefits claims, and certain money claims against the Government.[4] Disregarding the fact that there is a smaller number of government contracts appeals brought to the Federal Circuit compared to some of its other areas of jurisdiction,[5] the government contracts community, according to the former chief judge, may be lagging behind the Federal Circuit’s other legal communities in terms of submitting amicus briefs.[6]
Chief Judge Michel made this implicit call to government contracts amici nearly three years ago, yet the government contracts community has not responded with a flood of amicus filings.[7] Such a lack of response begs the question: why not?
This Notesuggests that there is a variety of practical reasons. It will then argue that if the Federal Circuit and the government contracts community make some adjustments in their approaches to amicus briefs, the adjustments could help these two groups serve not only each other’s interests but their own interests as well. This Note begins with a brief overview of amicus briefs in appellate litigation. This overview will also discuss which amicus briefs appellate judges find to be particularly useful. The Note will then proceed to address how the Federal Circuit’s stated approach to receiving and reviewing amicus briefs compares to the other circuit courts. After setting forth the background, this Note will analyze the Federal Circuit’s approach to government contracts amicus briefs and the briefs that have been previously submitted. It will then set forth a two-fold argument.
First,the Federal Circuit should call for amicus briefs in government contracts cases where any issue will be decided without reliance on binding precedent. The Federal Circuit is the only circuit court with a mechanism that specifically provides a method for reaching out to amici,[8] and it should fully use it in government contracts cases. Furthermore, when amici file briefs, Federal Circuit panels should provide some signalsthat the judges considered the amici’s arguments. Second, this Note will propose that the government contracts community must provide arguments that the Federal Circuit wants to hear from its amici. Essentially, amicus briefs should begin to focus on policy questions and provide predictions on how a decision will impact the marketplace.
II.Brief Overview of the Role of Amicus Briefs in Appellate Litigation
Amici—or “friends of the court”—are third-parties who have an interest in the outcome of a case and who may file briefs that state a unique viewpoint.[9] Amicus briefs can ensure a court’s decision is sound. Indeed, “[c]ourts have an obvious interest in improving their decision making, and they may have come to embrace [amicus] submissions as helpful in that endeavor.”[10] While sitting on the Third Circuit, then-Judge Samuel Alito summarized exactly why amicus briefs may be helpful:
Even when a party is very well represented, an amicus may provide important assistance to the court. “Some amicus briefs collect background or factual references that merit judicial notice. Some friends of the court are entities with particular expertise not possessed by any party to the case. Others argue points deemed too far-reaching for emphasis by a party intent on winning a particular case. Still others explain the impact a potential holding might have on an industry or other group.”[11]
Acknowledging the potential benefits of amicus briefs, the remainder of this part will provide an overview of how appellate judges view specific amicus briefs.
A.Which Amicus Briefs Are Valuable
Although there have not been focused studies conducted on the Federal Circuit’s use of amicus briefs,[12] there are relevant studies concerning the views of judges and justices on the Supreme Court and appellate courts in general.[13]
Many judges agree that amicus briefs are helpful when a party lacks quality representation.[14] Specifically, more than70% of circuitcourt judges have found that amici curiae were valuable when a party is “not adequately represented.”[15] As a result, judges and clerks may resort to amicusbriefs to fill in deficiencies.[16]
In some instances, however, a judge will not only rely on amici but may also proactively seek assistance from them. A study published in 2008 showed that 54.2% of circuit court judges said they request amicus participation when they “perceive a need for additional information . . . .”[17] Requesting amicus briefs may occur when the judge perceives that the parties do not have sufficient expertise in a particular area.[18]
Regardless of whether a judge has received an amicus brief on the amici’s own accord or whether the judge has sought the brief, there are some briefs that courts consider more useful than others. The following parts will provide an overview of those types of briefs.
1.Who the Helpful Amici Are
Judges do not treat all “friends of the court”equally. Rather, there appears to be two highly valuable amici that are applicable to government contracts appeals at the Federal Circuit. First, government agencies’ amicus briefs tend to carry the most weight in federal appellate courts.[19] In fact, judges on thefederal courts of appeals “ranked the [G]overnment as the most helpful amicus curiae.”[20]
The reasons for favoring government amicus briefs are numerous. Government briefs may provide expertise in helping courts determine the long-range impacts of a specific decision.[21] Considering other branches’ views also helps courts bring legitimacy to an opinion.[22] Additionally,encouraging amicus participation can facilitate later enforcement of a decision.[23]
Even within the subsection of government briefs, some are more favored than others. For instance, at the Supreme Court,amicus briefs from the Solicitor General may be given more consideration than those of all other advocates, including the actual parties to the case.[24] Briefs from government agencies are not as favored as those from the Solicitor General, but they are heeded some deference.[25] Amicus briefs from Congress are not considered quite as highly as those from other government entities.[26]
Briefs by amici with particularized knowledge represent the second type of generally valuable amicus briefs. Indeed, appellate judges seem to believe that amicus briefs are most helpful “when the amici have particular expertise in an area of law that the parties themselves lack.”[27] The desire to infuse the decision-making process with outside expertise reflects the awareness that judges are often “generalists” whononetheless must make decisions affecting technical and specialized areas oflaw.[28] Such a lack of specialization by these decision-makers may also explain why 88% of former clerks said they considered a brief authored by a prominent academic more carefully than other briefs.[29]
2.Particular Areas Where Amicus Briefs Provide the Most Assistance
In general, the level of value that an amicus brief provides will depend on factors beyond the party filing the brief. The value of the brief will further depend on the difficulty of the subject matter and the type of argument that the amicus makes.
First, difficulty of the subject matter and novelty to the court are relevant. The majority of former Supreme Court law clerks “explained that amicus briefs were most helpfulin cases involving highly technical and specialized areas of law, as well as complex statutory and regulatory cases.”[30]
Second,judges most favorably review amicus briefs that do not focus on legal arguments.[31] A survey of state appellate judges found that nearly all respondents thought amicus briefs assisted them in understanding policy considerations.[32] In an interview, one state appellate judge said that amicus briefs “‘need to be more explanatory of the problems created by a particular resolution of a case and written to explain the ramifications of a decision, rather than to advocate directly for that position.’”[33] He also described the need for amicus briefs to highlight how a pending decision may have a“ripple effect.”[34] Former Chief Judge Michel’s call for briefs that would assist the court in seeing the “downstream” impacts of their decisions echoes the same sentiments as this state judge’s comments.[35] In contemplating why federal judges also prefer amicus briefs that provide policy arguments, amici must bear in mind that judges are often chosen for their skills in legal analysis.[36] Thus, it is no doubt that “the most useful information”in amicus briefs is“frequently factual and non-legal in nature.”[37]
B.Amicus Briefs That Courts Do Not Consider to be Helpful
Many appellate judges agree that an amicus brief restating a party’s argument is generally not helpful.[38] According to one judge, “‘me too’ briefs, briefs that are too one-sided, or briefs that belabor the positions of parties whose positions are already well represented, are of no value to judges and will be disregarded.”[39] Such briefs may be considered an “echo” of a party’s argument and may thus not receive any attention.[40] Although there is some evidence that federal appellate-level judges may actually appreciate these arguments,[41]this may not be true for the Federal Circuit.
In a 2011 interview, the current chief judge of the Federal Circuit, Randall R. Rader,said that amicus briefs are most helpful to him if they “don’t just repeat the arguments made by one of the parties.”[42] Chief Judge Rader then went on to reiterate former Chief Judge Michel’s sentiments: “The best amicus briefs try to help us see the implications of our cases long term . . . .”[43] He further described the types of long-range predictions that he finds most helpful as ones with “statistics and insights into how the court’s cases would have some impact downstream in the marketplace.”[44]
III.Brief Overview of the Federal Circuit’s Approach to Amicus Briefs
From the outside, the Federal Circuit appears to be more amenable to amicus briefs than other courts of appeals. As this part will explain, the Federal Circuit’s local rule on amicus briefsand the previously mentioned judicial commentson them signalthat the court is receptive to prospective amici.
A.Federal Rule of Appellate Procedure 29 and the Federal Circuit’s Local Rule
Federal Rule of Appellate Procedure (FRAP) 29governs amicus briefsand guides federal courts of appeals and their parties on how to approachthem.[45] The ruleexplains:(1) when amicus briefs are permitted, (2) what motions are required for filing these, (3) the contents and form of an amicus brief, (4) the permissible length of an amicus brief, (5) the time for filing, (6) the general bar on amici submitting reply briefs, and (7) the general bar onamici participating in oral arguments.[46] Like other courts of appeals, the Federal Circuit follows FRAP 29, but it has also supplemented the FRAP with its own local rule.[47] That additional rule suggests that the Federal Circuitmay be moreproactive about securingamicus briefs than other circuits.[48] Federal Circuit Local Rule 29(b) states:
List of Amicus Curiae. The clerk will maintain a list of bar associations and other organizations to be invited to file amicus curiae briefs when the court directs. Bar associations and other organizations will be placed on the list if they request. The request must be renewed annually not later than October 1.[49]
No other circuit’s local rules discuss the maintenance of an amici list that it will use to solicit briefs. Instead, other circuits’ local rules deal only with what the court would do if a brief would cause recusal of a judge,[50] filing of briefs when a rehearing has been ordered,[51] word limits,[52] making a motion to filebriefs,[53]and filing of a letter in lieu of a brief.[54]
The list that Federal Circuit Local Rule 29 refers to, however, is minimal. The current list has but eight associations and organizations on it.[55] Although the list includes the Department of Justice and the Federal Circuit Bar Association – two groups that have some government contracts attorneys–the majority of the groups listed are not related to government contracts.[56] Rather, the majority is made up of five intellectual-property associations/organizations andthe National Organization of Veterans’ Advocates.[57]
B.The Federal Circuit’sCommentary on Amicus Briefs
For courts following FRAP 29, three approaches to amicus briefs emerge: (1) preventing their filing; (2) liberally allowing them but not reading them all; and (3) encouraging them and reading them. The Federal Circuit’s leadership has attempted to characterize the court as falling within the third approach. Indeed, Chief Judge Rader and former Chief Judge Michel’s comments suggest that the Federal Circuit may be one of the circuit courts most open to amicus briefs.[58]
The first approach–preventing the filing of amicus briefs at the appellate level–is the minority approach.[59] Under this view, which is supported by the Seventh Circuit (and in particular, Judge Posner), courts should only accept amicus briefs in three limited circumstances.[60] These circumstances are when (1) “a party is inadequately represented,” (2) “the would-be amicus has a direct interest in another case that may be materially affected by a decision in this case,” or (3) “the amicus has a unique perspective or specific information that can assist the court beyond what the parties can provide.”[61]
Under the second approach, judges try not to prevent amicus filings but nonetheless, tend notto read every brief filed. For example, in August 2011 Justice Ruth Bader Ginsburg stated, “I have to confess, I don’t read all of [the amicus briefs filed]. In fact, I don’t read most of them.”[62] Her comment should, however, be considered with her explanation of which ones she does read. A 2008 lawjournal article cited a personal interview withJustice Ginsburg where she explained that her clerks delineate which amicus briefs to skip, which to skim, and which to read in full.[63] Furthermore, looking at Justice Ginsburg’s opinions, it is clear that she and her staff do read some briefs;for instance,her Maples v. Thomas[64] opinion, announced in 2012, cited multiple amicus briefs.[65]
The third approach to amicus briefsinvolves judges who not only read the briefs, but have openly stated that they find such briefs particularly useful.[66] For example, former Chief Judge Michel stated “that amicus briefs were very important in helping the [Federal Circuit] to determine whether to take a particular case en banc.”[67] The current Chief Judgeof the Federal Circuit has recognized that there are some practical difficulties in filing amicus briefs,[68] but like Chief Judge Michel he also has encouraged their submission whenever possible.[69]