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

Jayna Marie Rust*

1 Businessman Dale Carnegie first published How to Win Friends and Influence People in 1936. See DALE CARNEGIE, HOW TO WIN FRIENDS & INFLUENCE PEOPLE (1936). The Missouri native’s book has since sold more than 15 million copies since that time. See DALE CARNEGIE, HOW TO WIN FRIENDS & INFLUENCE PEOPLE (Revised ed. 1981) [hereinafter CARNEGIE REVISED]. The book imparts timeless advice such as “Talk in terms of the other person’s interests”; “Show respect for the other person’s opinions. Never say, ‘You’re Wrong’”; and “Make the other person happy about doing the thing you suggest.” Id. at 112, 200, 249. Mr. Carnegie’s advice provides the backdrop for much of this Note’s suggestions and solutions.** Jayna Marie Rust (jrust@law.gwu.edu) is a J.D. candidate at The George Washington University Law School and a Notes Editor for the Public Contract Law Journal. She wishes to thank the Honorable Jeri K. Somers, Timothy Sullivan, and Collin D. Swan for taking the time to read previous drafts and provide thoughtful advice.

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Table of Contents

I. Introduction................................................3II. Brief Overview of the Role of Amicus Briefs in Appellate Litigation.....................................................6A. Which Amicus Briefs are Valuable..........................71. Who the Helpful Amici Are...............................92. Particular Areas Where Amicus Briefs Provide the Most Assistance.................................................11

B. Amicus Briefs that Courts do not Consider to be Helpful. .12III. Brief Overview of the Federal Circuit’s Approach to Amicus Briefs........................................................14A. Federal Rule of Appellate Procedure 29 and the Federal Circuit’s Local Rule.........................................14B. The Federal Circuit’s Commentary on Amicus Briefs........16

IV. Forgetting What the Other Wants: Why the Use of Amicus Briefs Could Be Better........................................19A. The Federal Circuit Sends Mixed Signals on Its Approach to Amicus Briefs, Ultimately Deterring Amici Participation......191. Federal Circuit Local Rule 29 has not Been Utilized to Appeal to the Government Contracts Community...............202. Limited Responses to Amicus Submissions Creates Little to No Incentive for the Government Contracts Community to File Future Amicus Briefs.......................................24

B. Courts Generally do not Read Briefs with the Types of Arguments That Government Contracts Amici Have Presented to the Federal Circuit..............................................26

V. Winning to “Our” Way of Thinking: Trying to See Things from the Other’s Point of View.....................................29A. The Federal Circuit Should Address Briefs that Amici File and Use Federal Circuit Local Rule 29 to Ask for More Policy Related Briefs...............................................31B. The Government Contracts Community Must Provide Briefs that Address what the Court Wants to Hear, Not Just What the Amicus Wants to Say.................................................32

VI. Conclusion................................................34

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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

2 Robert K. Huffman, Federal Circuit Decisions on Government Contracts: Insights from the Roundtable, 24 NASH & CIBINIC REP. ¶ 7, at 26 (Feb. 2010).3 Id. at 27. 4 Court Jurisdiction, CT. OF APPEALS FOR THE FED. CIR., http://www.cafc.uscourts.gov/the-court/court-jurisdiction.html (last visited Sept. 15, 2012). Other areas of jurisdiction include appeals made from certain administrative agencies’ decisions. Id.

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jurisdiction,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? 5 Government contracts cases make up only 5% of the appeals brought to the Federal Circuit. Appeals Filed, by Category FY 2011, CT. OF APPEALS FOR THE FED. CIR., http://www.cafc.uscourts.gov/images/stories/the-court/statistics/Caseload_by_category_2011.pdf (last visited Sept. 15, 2012). 6 See Huffman, supra note 2, at 26.7 Of the eleven precedential Federal Circuit government contracts opinions issued between September 15, 2011 and September 15, 2012, there were no amicus briefs filed in ten. See Engage Learning, Inc., v. Salazar, 660 F.3d 1346, 1348 (Fed. Cir. 2011); Sys. Dev. Corp. v. McHugh, 658 F.3d 1341, 1342 (Fed. Cir. 2011); Scott Timber Co. v. United States, No. 2011-5092, slip op. at 1 (Fed. Cir. Sept. 5, 2012); Sys. Application & Techs., Inc. v. United States, No. 2012-5004, slip op. at 1-2 (Fed. Cir. Aug. 24, 2012); DGR Assocs., Inc. v. United States, No. 2011-5080, slip op. at 1-2 (Fed. Cir. Aug. 2, 2012); Floorpro, Inc. v. United States, 680 F.3d 1377, 1378 (Fed. Cir. 2012); VanDesande v. United States, 673 F.3d 1342, 1343 (Fed. Cir. 2012); Laguna Hermosa Corp. v. United States, 671 F.3d 1284, 1286 (Fed. Cir. 2012); Digitalis Educ. Solutions, Inc. v. United States, 664 F.3d 1380, 1382 (Fed. Cir. 2012); Minesen Co. v. McHugh, 671 F.3d 1332, 1333 (Fed. Cir. 2012). The only precedential government contracts case that did have an amicus brief filed was DirectTV Group, Inc. v. United States, 670 F.3d 1370 (Fed. Cir. 2012), which had one. (The complaint in Kam-Almaz v. United States, 682 F.3d 1364 (Fed. Cir. 2012), contained a contracts-related claim, and there was an amicus brief filed at the Federal Circuit. However, both the Court of Federal Claims and the Federal Circuit found there was no implied-in-fact contract. See id. at 1366, 1368-69.) The above-cited cases exclude the seven spent nuclear fuel appeals decided at the Federal Circuit. See Bos. Edison Co. v. United States, 658 F.3d 1361 (Fed. Cir. 2011); Sys. Fuels,

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This Note suggests 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

Inc. v. United States, 666 F.3d 1306 (Fed. Cir. 2012); Pac. Gas & Elec. Co. v. United States, 668 F.3d 1346 (Fed. Cir. 2012); Consol. Edison Co. of N.Y., Inc. v. Entergy Nuclear Indian Point 2, LLC, 676 F.3d 1331 (Fed. Cir. 2012); Yankee Atomic Elec. Co. v. United States, 679 F.3d 1354 (Fed. Cir. 2012); Vt. Yankee Nuclear Power Corp. v. Entergy Nuclear Vt. Yankee, LLC, 683 F.3d 1330 (Fed. Cir. 2012); Kan. Gas & Elec. Co. v. United States, 685 F.3d 1361 (Fed. Cir. 2012). Even of those seven cases, only one had an amicus brief filed. See Vt. Yankee Nuclear Power, 683 at 1335.

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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 signals

that 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:

8 See FED. CIR. R. 29. 9 Black’s Law Dictionary describes amicus curiae as “[a] person who is not a party to a lawsuit but who petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter. — Often shortened to [amicus] — Also termed friend of the court.” BLACK’S LAW DICTIONARY 98 (9th ed. 2009) (emphasis in original).10 Robert W. Bennett, Counter-Conversationalism and the Sense of Difficulty, 95 NW. U. L. REV. 845, 886 (2001).

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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 than

70% of circuit court judges have found that amici curiae were

11 Neonatology Assocs., P.A. v. Comm’r of Internal Revenue, 293 F.3d 128, 132 (3d Cir. 2002) (quoting Luther T. Munford, When Does the Curiae Need an Amicus?, 1. J. APP. PRAC. & PROCESS 279, 281 (1999)).12 See Paul M. Collins, Jr. & Wendy L. Martinek, Who Participates as Amici Curiae in the U.S. Courts of Appeals?, 94 JUDICATURE 128, 128 (2010) (explaining that there is limited information on amicus curiae at the courts of appeals).13 One of these studies incorporated at least one response from a Federal Circuit judge. Linda Sandstrom Simard, An Empirical Study of Amici Curiae in Federal Court: A Fine Balance of Access, Efficiency, and Adversarialism, 27 REV. LITIG. 669, 685-86 n.70 (2008).14 Id. at 693.

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valuable when a party is “not adequately represented.”15 As a

result, judges and clerks may resort to amicus briefs 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

15 Id. This lack of adequate representation sometimes occurs when there is a “local trial lawyer” who has gotten in over her head. See Kelly J. Lynch, Best Friends? Supreme Court Law Clerks on Effective Amicus Curiae Briefs, 20 J.L. & POL’Y 33, 42 (2004).16 See Lynch, supra note 15, at 42.17 Simard, supra note 13, at 687.18 Andrew Frey, Amici Curiae: Friends of the Court or Nuisances?, LITIG., Fall 2006, at 6.

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Circuit. First, government agencies’ amicus briefs tend to carry

the most weight in federal appellate courts.19 In fact, judges

on the federal 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 19 See, e.g., Simard, supra note 13, at 697 (“Amicus curiae briefs offered by governmental entities were favored at all levels of the federal bench.”).20 Id. More than 96% of circuit court judges who responded to an academic survey stated that government amicus briefs are at least moderately helpful if not very helpful. Id.21 See id.22 Id.23 Id. at 697-98.24 See Lynch, supra note 15, at 46-47. Solicitor General amicus briefs are given great consideration because of the perceived high level of research, reliability, and impartiality attributed to them. Id. at 47.25 See id. at 49.

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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” who nonetheless

must make decisions affecting technical and specialized areas of

law.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.

26 See id.27 Frey, supra note 18, at 6.28 See Lynch, supra note 15, at 41.29 Id. at 52; see also Simard, supra note 13, at 698 (“As experts in particular fields of law, professors are able to offer an informed legal analysis of a pressing legal question from a relatively neutral perspective.”).

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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 helpful in 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 30 See Lynch, supra note 15, at 41. The areas of particular concern to these former clerks are tax, patent, trademark, and Employment Retirement Income Security Act. Id.31 See Simard, supra note 13, at 690 n.94. Legal arguments that present an argument missing from the parties’ briefs are, however, considered helpful. Id. at 690.32 Ninety-five percent of the judges responding agreed that amicus briefs were useful for understanding policy considerations. Victor E. Flango et al., Amicus Curiae Briefs: The Court’s Perspective, 27 JUST. SYS. J. 180, 187 (2006).33 Sylvia H. Walbolt & Joseph H. Lang, Jr., Amicus Briefs: Friend or Foe of Florida Courts?, 32 STETSON L. REV. 269, 277 (2003) (quoting interview with Florida Justice Charles T. Wells).34 Id.

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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.

35 See generally Huffman, supra note 2, at 27.36 See generally Lynch, supra note 15, at 42 (“[T]here are no better experts in strict legal analysis [than Supreme Court justices].”).37 Id. But see Walbolt & Lang, supra note 33, at 308 (“Judges generally will welcome briefs that present an important perspective or legal argument that otherwise might be overlooked by the main litigants . . . .”).38 See Walbolt & Lang, supra note 33, at 308; Lynch, supra note 15, at 43, 45; Simard, supra note 13, at 694-95. 39 Walbolt & Lang, supra note 33, at 308.40 Id. at 277.41 Simard, supra note 13, at 694-95.

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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

briefs and the previously mentioned judicial comments on them

signal that the court is receptive to prospective amici.

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

Federal Rule of Appellate Procedure (FRAP) 29 governs amicus

briefs and guides federal courts of appeals and their parties on

42 S. Lloyd Smith, An Interview with Chief Judge Randall R. Rader, LANDSLIDE, Mar.-Apr. 2011, at 6. Although Chief Judge Rader was addressing how amicus briefs may be useful in patent cases, he did not appear to limit his thoughts to those types of cases. See id. at 6-7.43 Id. at 6.44 Id. at 7.

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how to approach them.45 The rule explains: (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 on amici 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 Circuit may be

more proactive about securing amicus 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

45 See FED. R. APP. P. 29.46 Id.47 See FED. CIR. R. 29. 48 See Ruben J. Garcia, A Democratic Theory of Amicus Advocacy, 35 FLA. ST. U. L. REV. 315, 323 (2008) (citing FED. CIR. R. 29) (“Sometimes, courts reach out to experts to file amicus briefs. The Federal Circuit, for example, maintains a list of bar and other associations which will be invited to file briefs when the court directs.”).49 FED. CIR. R. 29(b).

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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

file briefs,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 and the National

Organization of Veterans’ Advocates.57

B. The Federal Circuit’s Commentary on Amicus Briefs

For courts following FRAP 29, three approaches to amicus

briefs emerge: (1) preventing their filing; (2) liberally

allowing them but not reading them all; and (3) encouraging them

50 2d CIR. R. 29.1(a); 5th CIR. R. 29.4; 9th CIR. R. 29-2 advisory committee’s note; D.C. CIR. R. 29(b).51 3d CIR. R. 29.1(a); 9th CIR. R. 29-2 advisory committee’s note; 10th CIR. R. 29.1.52 3d CIR. R. 29.1(b).53 5th CIR. R. 29.1.54 9th CIR. R. 29-1 advisory committee’s note.55 See U.S. Court of Appeals for the Fed. Circuit, List of 2012 Active Amicus Curiae Briefs (on file with the author).56 Id. 57 Id. The intellectual property organizations on the list include the Austin Intellectual Property Law Association, the Intellectual Property Law Association of Chicago, the National Association of Patent Practitioners, and the New York Intellectual Property Law Association. Id.

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and reading them. The Federal Circuit’s leadership has attempted

to characterize the court as falling within the third approach.

Indeed, 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 not to 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, 58 Huffman, supra note 2, at 26-27; Smith, supra note 42, at 6-7.59 Frey, supra note 18, at 5 (citing In re Heath, 331 B.R. 424, 430 n.4 (B.A.P. 9th Cir. 2005)). 60 Voices for Choices v. Ill. Bell Tel. Co., 339 F.3d 542, 545 (7th Cir. 2003).61 Id. (citations omitted).62 Miriam Rozen, U.S. Supreme Court Justice Ruth Bader Ginsburg — and One-Time Oklahoma Resident — Shares Thoughts On What She

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however, be considered with her explanation of which ones she

does read. A 2008 law journal article cited a personal interview

with Justice Ginsburg where she explained that her clerks

delineate which 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. Thomas64 opinion, announced in 2012,

cited multiple amicus briefs.65

The third approach to amicus briefs involves 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 Judge of the Federal Circuit

has recognized that there are some practical difficulties in

Reads and What She Doesn’t, TEX. LAW. BLOG (Aug. 30, 2011, 11:53 AM), http://texaslawyer.typepad.com/texas_lawyer_blog/2011/08/us-supreme-court-justice-ruth-bader-ginsburg-and-one-time-oklahoma-resident-shares-thoughts-on-what-.html.63 Simard, supra note 13, at 688. Justice Ginsburg’s statement and actions reflect the earlier discussion on judges’ varying treatment of amicus briefs. See discussion supra Part II.64 132 S. Ct. 912 (2012).65 See id. at 925 n.8. 66 Justice Alito’s comments in Neonatology Assocs., P.A. v. Commissioner of Internal Revenue, 293 F.3d 128, 132 (3d Cir. 2002) suggest that he may be in this camp. See discussion supra Part II.67 See Huffman, supra note 2, at 27.

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filing amicus briefs,68 but like Chief Judge Michel he also has

encouraged their submission whenever possible.69

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

If Federal Circuit Local Rule 29 and the court’s chief

judges have explicitly and implicitly stated that amicus briefs

will be considered,70 why aren’t there more amicus briefs filed

in government contracts cases?71 As former Chief Judge Michel’s

comments suggest, both the government contracts community and the

Federal Circuit could benefit from more frequent use of amicus

briefs in government contracts appeals.72

The following part will explain the issues in government

contracts amicus briefs filed at the Federal Circuit. It will

also suggest that when amici file briefs, both the Federal

Circuit and amici may be more concerned with their own needs than

with what the other needs. Nevertheless, each side could

actually reap benefits from considering the other’s situation.

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

68 See Randall R. Rader, Transcript: The Honorable Judge Randall R. Rader, Chief Judge of the Court of Appeals for the Federal Circuit: The Most Pressing Issues in IP Law Today, 2 CYBARIS AN INTELL. PROP. L. REV. 1, 10 (2011).69 See id. at 4, 10; Smith, supra note 42, at 6 (quoting Chief Judge Rader as saying “[y]es, I like amicus briefs”).70 See Huffman, supra note 2, at 26; Smith, supra note 42, at 6.71 See supra note 7 and accompanying text.72 See Huffman, supra note 2, at 26.

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Despite the fact that the Federal Circuit’s leadership has

stated they find amicus briefs useful,73 this claim has not

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

despite the fact that some Federal Circuit judges have said they

are explicitly open to amicus filings,74 other Federal Circuit

judges’ actions may deter amicus filings.

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

To date, there has been no evidence of any outreach to the

government contracts community by means of the Federal Circuit

Local Rule 29 list. However, reaching out to the government

contracts community could be particularly useful, especially when

the Federal Circuit decides a case that appears to have no

grounding in binding precedent. The decision in M. Maropakis

Carpentry, Inc. v. United States,75 and the government contracts

community’s subsequent reactions to it, illustrate the utility

such outreach could provide.

In this 2010 case, a contractor sought to prove that

jurisdiction over its suit existed at the Court of Federal

Claims.76 M. Maropakis Carpentry, Inc. (Maropakis) had held a

contract for replacing windows and a roof on a Navy building.77

73 See, e.g., Smith, supra note 42, at 6.74 Id.75 609 F.3d 1323 (Fed Cir. 2010).76 Id. at 1327.77 Id. at 1325.

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There were issues in completing the performance of the contract,

and Maropakis brought suit at the Court of Federal Claims.78

Maropakis claimed that it was entitled to time extensions and

thus a remittance of the liquated damages that the Government had

assessed and withheld.79 In response, the Government brought a

counterclaim for the balance of its liquidated damages

assessment.80

The Court of Federal Claims found that the two letters

Maropakis had submitted to the Contracting Officer (CO) did not

satisfy the Contracts Disputes Act (CDA)81 claim requirements and

thus found that it did not have jurisdiction in the suit.82 On

its appeal to the Federal Circuit, Maropakis argued that the

decision below wrongly prohibited the court from considering its

defense to the Government’s claim.83 Essentially, the contractor

argued that a valid CDA claim was not necessary because its

“claim” for a time extension was actually a “defense” to the

government’s claims for liquidated damages.84 Thus, the appeal 78 See id. at 1326.79 Id.80 Id.81 41 U.S.C. §§ 7101-7109 (Supp. IV 2010). 82 See M. Maropakis Carpentry, Inc. v. United States, 84 Fed. Cl. 182, 202-03 (2008). As the court noted, the definition of a “claim” is not defined by the CDA; thus, courts rely on the FAR definition. Id. at 195 (citing FAR 2.101). The FAR defines a claim as a demand for (1) “the payment of money in a sum certain,” (2) “the adjustment or interpretation of contract terms,” or (3) “other relief arising under or relating to [the] contract.” FAR 2.101.83 M. Maropakis Carpentry, 609 F.3d at 1329-30.84 See id.

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turned on whether or not a contractor needed to present the CO

with a valid CDA claim before asserting an affirmative defense to

a government claim.85

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

contractor had not brought a valid CDA claim.86 In addressing

the contractor’s argument about raising a defense rather than a

claim, the Federal Circuit did not rely on any binding precedent,

but instead it relied on decades-old decisions of the Claims

Court.87 In doing so, it held that when a contractor raises a

“defense” that has the same basis as a possible claim, that

“defense” must also meet CDA claim requirements.88

The precedent set in Maropakis has created more than “a

ripple effect.”89 By some accounts, it has created full-fledged

waves.90 In response to the opinion, many government contracts

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

85 See id.86 Id. at 1323, 1332.87 Id. at 1331 (citing Sun Eagle Corp. v. United States, 23 Cl. Ct. 465, 477 (1991); Elgin Builders, Inc. v. United States, 10 Cl. Ct. 40, 44 (1986)).88 Id. 89 Walbolt & Lang, supra note 33, at 277 (quoting Florida Justice Charles T. Wells).90 See, e.g., Kara M. Sacilotto, When Is a “Defense” a “Claim”?: Federal Circuit Finds No Jurisdiction over Government-Caused Delays Defense Because Contractor Did Not File Its Own Claim, WILEY REIN LLP (Summer 2010), http://www.wileyrein.com/publications.cfm?sp=articles&newsletter=3&id=6266; Jocelyn Allison, Fed. Circ. Puts Contractors on Offense in Maropakis, LAW360, http://www.law360.com/articles/189380 (last visited Sept. 15, 2012).

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their equivalent.91 As one government contracts attorney told a

legal publication: “‘The analysis of government contracts

disputes in terms of filing a claim and evaluating what to put

into it just got a whole lot more complicated . . . . .’”92

Furthermore, prominent government contracts academics have

published criticisms of the opinion.93 There has also been

pushback from both of the government contracts claims-disputes

forums below the Federal Circuit.94

The discussion here of Maropakis is not intended to debate

the merits of the panel’s holding. The discussion of the case

and the reactions to it is, however, intended to suggest that the

panel’s opinion could have used more legitimacy within the 91 See, e.g., Sacilotto, supra note 90; Contractors Beware — Federal Circuit Holds that a Contractor May Not Present Factual Defenses to the Government’s Liquidate Damages Assessment Because the Contractor Failed to Submit a Certified Claim for Time Extensions, MCKENNA LONG & ALDRIDGE LLP (July 6, 2010), http://www.mckennalong.com/publications-advisories-2345.html.92 Allison, supra note 90 (quoting attorney Kevin Cosgrove at Hunton & Williams LLP).93 See, e.g., Ralph C. Nash, Jr., Defense to a Government Claim is a Contractor Claim: A Weird Thought, 24 NASH & CIBINIC REP. ¶ 42, at 135 (Sep. 2010) (explaining Maropakis “flies in the face of the congressional purpose of providing contractors a fair procedure for resolving disputes”); Steven L. Schooner, Postscript: Defense to a Government Claim is a Contractor Claim, 26 NASH & CIBINIC REP. ¶ 6, at 18 (Feb. 2012) (“[I]t seems unduly formalistic and suggests that the majority were neither interested in protecting nor uniquely concerned about the interests of the Government contractor community.”). 94 See Sikorsky Aircraft Corp. v. United States, 102 Fed. Cl. 38, 47, 48 n.14 (2011) (discussing how application of Maropakis may create a “Hobson’s choice” for contractors and spending a 54-line footnote to distinguish its case from Maropakis); see also Nat’l Fruit Prod. Co. v. Dep’t of Agric., CBCA No. 2445, 12-1 BCA ¶ 34,979, at 171,932.

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government contracts community and in the forums below. The

receipt and consideration of briefs filed by government contracts

amici could have provided the opinion with this legitimacy.

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

Although there are some cases in which the Federal Circuit

has addressed amici’s arguments,95 the court has also issued its

fair share of opinions that have failed to address filed amicus

briefs.96 For example, the 2000 Lockheed Martin Corp. v. United

States97 opinion did not mention any of the briefs that amici

filed in the appeal.98

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

Lockheed Martin case. The 2010 decision in ATK Thiokol, Inc. v.

United States99 is another example of this trend. The court

95 For instance, McDonnell Douglas Corp. v. United States had one amicus brief filed when it was before the Federal Circuit in 2009. See McDonnell Douglas Corp. v. United States, 567 F.3d 1340, 1342 (Fed. Cir. 2009). In that case, the Federal Circuit opinion, which Chief Judge Michel authored, considered the amicus position, citing its arguments several times. Id. at 1351, 1354.96 As discussed in note 7, only one precedential case during that time frame had an amicus brief filed (DirectTV Group, Inc. v. United States, 670 F.3d 1370 (Fed. Cir. 2012)); the per curiam opinion did not discuss the amicus brief. Although that case is not discussed in this Note, the discussion below generally applies to that case and amicus brief as well.97 210 F.3d 1366 (Fed. Cir. 2000).98 Id. at 1367-68. That case presented questions about taxes on government contractors, and although technically a tax-refund claim, it arose from a government contract and partially concerned the substance of the contract. Id. at 1368.99 598 F.3d 1329 (Fed. Cir. 2010).

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issued this decision four months after Chief Judge Michel urged

government contracts experts to file more amicus briefs at the

Federal Circuit.100 ATK Thiokol had two amicus briefs filed,101

neither of which the panel mentioned in its opinion.102

This lack of acknowledgement of an amici’s argument sends an

implicit message to the potential amicus brief filers — and to

the government contracts community as a whole — that the Federal

Circuit may not care about what amici have to say.103 Such an

implicit message serves as a deterrent for future filings.104

This deterrence is best illustrated when considering the cost of

an amicus brief. Amicus briefs cost clients between $10,000 and

$15,000,105 and may cost as much as $100,000.106 When there is no

guarantee that a judge will read the brief, prospective amicus

filers have little incentive to pay the legal fees.107 A lack of 100 Chief Judge Michel made his statements on Dec. 4, 2009. See Huffman, supra note 2, at 25. The court issued its opinion in ATK Thiokol on March 19, 2010. ATK Thiokol, 598 F.3d at 1329.101 ATK Thiokol, 598 F.3d at 1330.102 See ATK Thiokol, 598 F.3d 1329. 103 Such a failure to discuss or even mention an amicus argument suggests that the judge did not appreciate the argument made in the brief or that it has ended up in a “skip” pile. See Simard, supra note 13, at 688.104 See John Harrington, Note, Amici Curiae in the Federal Courts of Appeals: How Friendly Are They?, 55 CASE W. RES. L. REV. 667, 697 (2005) (arguing that if potential amici think a court is not likely to read a brief, they will not spend the time or money drafting one).105 See Gregory A. Caldeira & John R. Wright, Amici Curiae before the Supreme Court: Who Participates, When, and How Much?, 52 J. POL. 782, 800 (1990).106 Stephanie Francis Ward, Friends of the Court Are Friends of Mine, A.B.A. J., Nov. 2007, at 25. 107 See Harrington, supra note 103, at 697.

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acknowledgement may deter academics as well. Although academics

would not hire outside counsel to write their briefs, they must

justify their work to deans and other supervisors.108 Without

proof that the panels are reading their briefs, professors will

likely face pressure to use their hours on other projects or on

publication.109

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

Looking at the same issue from the Federal Circuit’s point

of view, it becomes apparent that neither of the judges who

authored the Lockheed Martin and ATK Thiokol opinions seems

completely averse to amicus briefs.110 Indeed, both of those

judges have acknowledged amici’s arguments in other cases.111

Thus, the fact that these judges did not mention the amicus

108 See Richard A. Posner, The State of Legal Scholarship Today: A Comment on Schlag, 97 GEO. L.J. 845, 854 (2009) (“The period to tenure has been lengthened to enable the law school to base its decision to grant tenure on a larger sample of a candidate's written work.”).109 See id.110 For example, the authoring judge of the Lockheed Martin opinion, Judge Lourie, has on multiple occasions referred to amicus briefs. See, e.g., Ass’n for Molecular Pathology v. U.S. Patent & Trademark Office, 689 F.3d 1303, 1330 (Fed. Cir. 2012) (“Contrary to the conclusions of the district court and the suggestions of Plaintiffs and some amici . . . ”); Marine Polymer Techs., Inc. v. HemCon, Inc., 672 F.3d 1350, 1361 n.6, n.7 (Fed. Cir. 2012) (noting which briefs supported which parties).111 See, e.g., Ass’n for Molecular Pathology, 689 F.3d at 1330; Marine Polymer Techs., 672 F.3d at 1361 n.6, n.7; Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 672, 678 (Fed. Cir. 2008); Wolfchild v. United States, 559 F.3d 1228, 1236-37 n.4 (Fed. Cir. 2009).

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briefs in the Lockheed Martin and ATK Thiokol opinions suggests

there may be something the government contracts amici could be

doing better.

In both cases, the amici did not frame the arguments in a

manner that suggested the briefs contained the kind of

information that judges say they want from amici.112 In the ATK

Thiokol case, the amici provided arguments that were comparable

to one of the parties’ arguments.113 Similarly, in Lockheed

Martin, the amicus briefs provided additional arguments to

112 In contrast, the briefs submitted in the cases noted in note 110 generally were framed as providing policy positions — even when grounded in the law. See, e.g., Brief for Nike, Inc. as Amicus Curiae Supporting Appellants at 1-2, Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2007) (No. 2006-1562), 2007 WL 3192566 (setting forth four arguments in an en banc rehearing: (1) the panel decision conflicts with its purpose in practice, (2) the panel decision conflicts with the court’s precedent, (3) the panel decision cannot be applied with consistency, and (4) the panel decision will create confusion in an already confusing analysis).113 Compare Brief for The Committee on Government Business of Financial Executives International as Amicus Curiae Supporting Appellee at 2-3, ATK Thiokol, Inc. v. United States, 598 F.3d 1329 (Fed. Cir. 2009) (No. 2009-5036), 2009 WL 2610094 (“The [G]overnment’s interpretation of ‘required in the performance of a contract’ ignores the regulatory system created by FAR Part 31 and [Cost Accounting Standards (CAS)] within which the definition operates. Instead, the [G]overnment argues the instant case from a strained interpretation of regulatory history and rejection of directly pertinent case precedent.”), with Brief of Appellee at 13, ATK Thiokol, Inc. v. United States, 598 F.3d 1329 (Fed. Cir. 2009) (No. 2009-5036), 2009 WL 2405124 (“The [G]overnment’s argument is wrong. It is the [G]overnment’s argument that runs contrary to the expansion of [Independent Research and Development (IR&D)]intended by Congress and the intent of the drafters of the CAS and FAR provisions relating to IR&D.”).

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support the basis of the contractor’s legal reasoning.114

However, these reiteration arguments are typically “of no value

to judges and will be disregarded.”115

Thus, framing the briefs as based on arguments similar to a

party’s argument suggested they provided information that was

nearly exactly what many judges have said they are not looking

for in amicus briefs.116 For judges who may make Ginsburg-like

piles117 of amicus briefs, this type of brief will likely be

skipped when the parties have adequate representation.

Therefore, regardless of whether these amici were correct in

their arguments,118 the Federal Circuit likely did not cite or

114 See Brief of Hughes Electronics Corp. & Raytheon Co. as Amicus Curiae Supporting Appellants, Lockheed Martin Corp. v. United States, 210 F.3d 1366 (Fed. Cir. 2000) (No. 99-5039), 1999 WL 34766254 (“For assuming [risks under fixed-price contracts], the express terms of the Internal Revenue Code (section 41) and the express decision of this Court (Fairchild Industries, Inc. v. United States, 71 F.3d 868 (Fed. Cir. 1995)) grant government contractors the research tax credit.”); Brief of the Chamber of Commerce of the United States of America as Amicus Curiae Supporting Appellant at 2, Lockheed Martin Corp. v. United States, 210 F.3d 1366 (Fed. Cir. 2000) (No. 99-5039), 1999 WL 33612592 (“Lockheed Martin is entitled to a tax credit for its qualified research expenditures under the contracts here in issue. Under the relevant provisions of these fixed-price development contracts, Lockheed Martin retained the rights to use and apply the results of its research.”).115 Walbolt & Lang, supra note 33, at 308.116 See id.; Lynch, supra note 24, at 42.117 See Simard, supra note 13, at 688. 118 And, indeed, the courts’ holdings suggest that they were correct in that the Federal Circuit held in the position that the amici supported. See ATK Thiokol, Inc. v. United States, 598 F.3d 1329 (Fed. Cir. 2010); Lockheed Martin Corp. v. United States, 210 F.3d 1366 (Fed. Cir. 2000).

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address these arguments because they were not framed as the type

of arguments that the judges wanted to hear.119

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

Both the Federal Circuit and the government contracts

community would benefit from adjustments to amicus brief filings

at the Federal Circuit. As mentioned above, courts have an

incentive to encourage strong amicus briefs because they want

their decisions to come out the “right” way.120

For the government contracts community, improving amicus

brief filings at the Federal Circuit is necessary due to the

court’s status as the apparent court-of-last-resort for

government contracts cases. Indeed, in government contracts

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

winning a case.121 Scholars have noted that “for all practical

purposes, the courts of appeals are the appellate courts of last

resort in the federal judicial system . . . .” 122 This is due to

119 An amicus brief’s summary of the argument section is of particular importance because it will typically determine how closely any amici’s arguments will be read. See Lynch, supra note 15, at 44 (explaining that when clerks screen amicus briefs for their justice, they rely on the summary of arguments, table of contents, and section headings). Using this information, the clerk “tells his justice not to read the briefs that just repeat arguments . . . .” Id. at 45.120 See Bennett, supra note 10, at 886.121 Terry Elaine Miller, The Federal Circuit-Year Three: Emerging from Infancy, 35 AM. U. L. REV. 1121, 1122 (1986).122 Collins & Martinek, supra note 12, at 128.

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“how few appeals are disposed of by the Supreme Court and how

many appeals are disposed of by the courts of appeals.”123

Viewing a circuit court as the court-of-last-resort is

particularly accurate when considering the Federal Circuit, which

has a unique set of appellate jurisdiction.124 Because the

Federal Circuit is the only appellate court hearing government

contract cases, there is never a circuit split on decisions,

which is a key signal to the Supreme Court that it should grant

certiorari.125 Indeed, over a 10-year span, the Federal Circuit

had only 30 cases reviewed by the Supreme Court.126 Thus, at a

court that has about 1,500 appeals terminated there annually, and

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

Supreme Court,127 it makes sense to consider the Federal Circuit

as the Supreme Court of government contracts for all practical

purposes.

Therefore, both the Federal Circuit and the government

contracts community should accept the Federal Circuit’s “Supreme

Court of Government Contracts” status and treat amicus briefs 123 Id.124 See Court Jurisdiction, supra note 4.125 David C. Thompson & Melanie F. Wachtell, An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call for Response and the Call for the Views of the Solicitor General, 16 GEO. MASON L. REV. 237, 267 (2009).126 Roy E. Hofer, Supreme Court Reversal Rates: Evaluating the Federal Courts of Appeals, LANDSLIDE, Jan.-Feb. 2010, at 9. There is, however, a sense that the Supreme Court has begun to increase the number of cases it is taking up from the Federal Circuit. See Smith, supra note 42, at 7.127 Hofer, supra note 125, at 9.

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there as such. In making this argument, this Note challenges

both the community and the Federal Circuit to make adjustments

and show that each side is willing to be a better “friend” for

the sake of the interests of government contracts law.

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

If Federal Circuit judges want to improve the usefulness of

amicus briefs they see, there are at least two ways that they can

be proactive in that endeavor. First, Federal Circuit judges

should take advantage of Federal Circuit Local Rule 29 and ask

for amici to file briefs in government contracts cases.128 In

particular, when there is no binding precedent on an issue that

the court must address, the court should reach out to the

government contracts community.129 Even if the parties have not

characterized an issue as one of first impression, as occurred in

Maropakis,130 the Federal Circuit should treat it as one when

applicable. And because cases of first impression should be

fully considered in light of the law as well as the “downstream”

effects,131 such decisions should have amicus input.

The second way that the Federal Circuit could be more

proactive is by addressing arguments that amici present. Even if

128 See FED. CIR. R. 29.129 See supra Part IV.130 M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1331 (Fed. Cir. 2010).131 Huffman, supra note 2, at 27.

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a panel does not find amicus briefs particularly helpful in a

decision, the judges can improve future amicus brief submissions

by explaining why the amicus arguments were not useful. Simply

not addressing the arguments, as what happened in Lockheed

Martin132 and ATK Thiokol,133 creates a powerful deterrent for

potential government contracts amici in the future.134

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

Although the Federal Circuit may need to make adjustments to

its approach to amicus briefs, the government contracts community

may need to make adjustments as well. To do so, the community

must consider what types of arguments the court is looking to

hear from each type of amici.

The problem with considering the Lockheed Martin and the ATK

Thiokol cases is that in some ways, the community did consider

the Federal Circuit’s needs. These cases involved Cost

Accounting Standards and tax credits, which are areas of law that

are considered difficult issues, even within the government

contracts community.135 These are indeed the types of issues 132 Lockheed Martin Corp. v. United States, 210 F.3d 1366 (Fed. Cir. 2000).133 ATK Thiokol, Inc. v. United States, 598 F.3d 1329 (Fed. Cir. 2010).134 See supra Part IV.135 See Lynch, supra note 15, at 41 (discussing clerks’ desire to have amicus briefs in tax cases because of the complexity inherent in the law); Contract Cost Accounting, SHEPPARD MULLIN, http://www.sheppardmullin.com/practices-22.html (last visited Sept. 15, 2012) (“No aspect of [g]overnment contracting differs

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where “amicus briefs [may be] most helpful” because they involve

“highly technical and specialized areas of law, as well as

complex statutory and regulatory cases.”136 Thus, what should be

noted is that this information is generally best received from

government entities or uninterested academics who file

independent amicus briefs on behalf of neither party but simply

to explain a difficult area of the law.137

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

an academic, arguments should be framed as providing mostly

policy information.138 Even if the amicus is truly advocating for

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

policy information and predictions.139 These are the “downstream”

impacts that the Federal Circuit appears to want to hear.140

VI. Conclusion

The potential of government contracts amicus briefs has not

been fully realized at the Federal Circuit. Former Chief Judge

Michel has noted that there is not the same amount of amicus

more materially from commercial norms than the cost accounting principles with which contractors must comply. The reimbursement of costs in connection with ‘flexibly-priced’ and cost-reimbursement [g]overnment contracts is subject to a startling array of extraordinarily complex rules, many of which are wholly inconsistent with customary commercial practice.”).136 See Lynch, supra note 15, at 41.137 See Simard, supra note 13, at 698.138 See Walbolt & Lang, supra note 33, at 277; see also Huffman, supra note 2, at 26; Smith, supra note 42, at 6.139 See, e.g., Flango et al., supra note 32, at 187; Smith, supra note 42, at 7.140 See Huffman, supra note 2, at 27.

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activity as in the court’s other areas of jurisdiction.141 The

limited amicus activity that has occurred, however, has received

mixed signals from the Federal Circuit. These mixed signals

deter the government contracts community from filing amicus

briefs. On the other hand, part of the cool reception may be

attributed to the types of arguments presented in the amicus

briefs, as these arguments have not necessarily been framed in

terms of what the court is looking for.

The solutions suggested in this Note challenge both the

government contracts community and the Federal Circuit to

endeavor to improve the use of amicus briefs. In encouraging

each to make some adjustments, these solutions acknowledge the

practical difficulties both sides face. But with these

adjustments, a better relationship between the court and the

community can “[b]egin in a friendly way.”142 The benefits of

such a relationship would not be limited to a single panel or

party; they would also provide a stronger foundation for

government contracts law.

141 Id. at 26.142 CARNEGIE REVISED, supra note 1, at 200.

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