January 26, 2021 - Federal Circuit Insights

There’s a new President. How could that affect practice in the Circuit?

What could the new President mean for Federal Circuit practitioners? It could mean new judges. While no vacancies arose during President Trump’s term, five of the Circuit’s active judges can take senior status at any time, because they meet “the rule of 80” (which means their age plus judicial service equals 80, and they are at least 65 years old with 10 years’ service).

But just because they can doesn’t mean they will. Judge Newman has been eligible since 1996, yet she’s still going strong at age 93. Judge Lourie could have taken senior status in 2003; same with Judge Dyk in 2010 and Judge Wallach in 2014. Chief Judge Prost became eligible while she’s been Chief, so perhaps she’ll step back after she passes that gavel to Judge Moore in May 2021. And two more will become eligible over the next four years: Judge O’Malley in November 2021 and Judge Reyna in April 2022.

If a spot opens up for one or more Biden appointees, what will that mean for advocates? Well, it could mean fewer laughs, if the spot is Judge Lourie’s. He’s well known for his puns. One of my favorites: after I wrapped up rebuttal in a patent case about microinscribing diamonds, Judge Lourie quipped (here at 35:46), “We could call this case a gem, but we … won’t characterize it; we’ll just decide it.”

All joking aside, the five judges already eligible for senior status have over 110 years of combined experience on the Federal Circuit. So to say the least, they are well-versed in all aspects of the Court’s specialized docket. It’s unlikely any new judge will be. Just look at the seven well-qualified appointees of President Obama: Judges O’Malley, Reyna, Wallach, Taranto, Chen, Hughes, and Stoll. Each of them had substantial experience with at least one part of the Court’s caseload. Even so, they were often newer to other parts. For example, Judge Hughes had almost two decades’ experience in the U.S. Department of Justice litigating government contracts, veterans’ affairs, and other cases within the Circuit’s jurisdiction. But he had less familiarity with patent law issues. Conversely, Judge Chen, who was appointed after 15 years of handling patent cases for the U.S. Patent and Trademark Office, had less experience with other issues. By now of course, all of the Obama appointees have substantial experience, having served on the Circuit between five and 10 years each.

So how might new judges affect practice before the Court? On the one hand, maybe not much. Because an advocate doesn’t learn the three judges on her case until the morning of oral argument, every brief must be written for the generalist judge—assuming no particular expertise in, for example, the science involved in a patent appeal or the government contracts principles in a bid protest.

Where it could matter most is at oral argument. As oral advocates, we study the relevant decisions of all the Court’s members so that, despite only learning our panel the morning of, we have some idea when we’re being grilled how our questioners might approach our case. Not so with new judges. They don’t have years of opinions for advocates to study. And they may be new to the area of law themselves. That makes it even more important than usual to have mock arguments with “judges” who have no background in the case or the relevant area of law. But in the end, new judges or no new judges, some things will remain the same: briefs must be clear and concise, and oral advocates must know cold both the factual record of their case and the law that applies to it.