How to Win Friends and Influence Government Contracts Law:1

Improving the Use of Amicus Briefs at the Federal Circuit

Jayna Marie Rust*

257 14th St. SE, Unit A

Washington, DC 20003

jrust@law.gwu.edu

* 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.

Table of Contents

I. Introduction...............................................1

1 Court Jurisdiction, Court of Appeals for the Federal Circuit, 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.

II. Brief Overview of the Role of Amicus Briefs in Appellate

Litigation.....................................................4

A. Which Amicus Briefs are Valuable.........................5

1. Who the Helpful Amici Are...............................7

2. Particular Areas Where Amicus Briefs Provide the Most

Assistance..................................................9

B. Amicus Briefs that Courts do not Consider to be Helpful. 11

III. Brief Overview of the Federal Circuit’s Approach to Amicus

Briefs12

A. Federal Rule of Appellate Procedure 29 and the Federal

Circuit’s Local Rule.........................................13

B. The Federal Circuit’s Commentary on Amicus Briefs.......15

IV. Forgetting What the Other Wants: Why the Use of Amicus

Briefs Could Be Better........................................17

A. The Federal Circuit Sends Mixed Signals on Its Approach to

Amicus Briefs, Ultimately Detering Amici Participation.......18

1. Federal Circuit Local Rule 29 has not Been Utilized to

Appeal to the Government Contracts Community...............19

2. Limited Responses to Amicus Submissions Creates Little to

No Incentive for the Government Contracts Community to File

Future Amicus Briefs.......................................23

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.....................................29

A. The Federal Circuit Should Address Briefs that Amici File

and Use Federal Circuit Local Rule 29 to Ask for More Policy

Related Briefs...............................................31

B. 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

I. Introduction

When addressing a government contracts group in December

2009, then Chief Judge Paul Michel, then Chief Judge 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[Nevertheless,] “A[a]mici 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

2 See Federal Circuit Local Rule 29.3 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).4 Robert W. Bennett, Counter-Conversationalism and the Sense of Difficulty, 95 NW. U.L. REV. 845, 886 (2001).

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to the Federal Circuit compared to some of its other areas of

jurisdiction,5 according to the former chief judge, 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 Notearticle will suggest 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 eachthe other’s

interests but their own interests as well.

This Notearticle begins with a brief overview of amicus

briefs in appellate litigation. This overview will also discuss

5 Neonatology Assocs., P.A. v. Commissioner of Internal Revenue, 293 F.3d 128, 132 (2002) (quotingciting Luther T. Munford, When Does the Curiae Need an Amicus?, 1. J. APP. PRAC. & PROCESS 279, 281 (1999)).6 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).7 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).

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which amicus briefs appellate judges find to be particularly

useful. The Notearticle 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 Notearticle 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 Circuitthe panels should signalizeprovide

some signals that theits judges considered the amici’s arguments.

Second, this Notearticle will proposeargue 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.

8 See id. at 693.

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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 These 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 PartSection will provide an overview of how

appellate judges view specific amicus briefs.

9 See id. This lack of adequate representation sometimes occursmay be 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. 33, 42 (2004).10 See Lynch, supra note 15.id.11 Simard, supra note 12, at 687 (this is the previously mentioned study, and it included judicial responses from all circuits and at least one response from the Federal Circuit).

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[A.] Which Amicus Briefs Aare Valuable

Although there have not been focused studies conducted on

the circuit courts’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 and clerks agree that amicus briefs are helpful

when a party lacks quality representation.14 Specifically,

overNearly 870% of circuit -court judges have found that amici

curiae were valuable when a party is “not adequatelyinadequately

represented.”15 As a resultAt this point, the judges and clerks

resort tomay then resort to relying on 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

saidy they request amicus participation when they “perceive a

need for additional information . . . .”17 Requesting amicus

12 See Andrew Frey, Amici Curiae: Friends of the Court or Nuisances?, 33 No. 1 LITIGATION 5, 6 (2006).13 See, e.g., Simard, supra note 12, at 697 (“Amicus curiae briefs offered by governmental entities were favored at all levels of the federal bench”).14 See 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.15 Id.16 Id.17 See id.

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briefsThis 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

onf 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 subsectionsis Part 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.

TRather, there appears to be two highly valuable amici that are

applicable to government contracts appeals at the Federal

Circuit. First, it is clear that 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[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 long-range impacts of a specific decision. 21

Considering other branches’ views also helps courts bring

18 Frey, supra note 17, at 6.19 See Lynch, supra note 14, at 41.20 95%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).21 Sylvia H. Walbolt & Joseph H. Lang, Jr., Amicus Briefs: Friend or Foe of Florida Courts?, 32 STETSON L. REV. 269, 277 (2003) (quoting Florida Justice Charles T. Wells).

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legitimacy to an opinion.22 Additionally,nd encouraging amicus

participation can facilitate later enforcement of a decision.23

Even within the sub-section 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 Tthe

second type of generally valuable amicus briefsi is one with

particularized knowledge. 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

22 Id. at 277-78.23 See Huffman, supra note 2, at 276.24 One scholar noted clerks have said “There are no better experts in strict legal analysis [than Supreme Court justices].” Lynch, supra note 23, at 42 (“There are no better experts in strict legal analysis [than Supreme Court justices].”).25 See id. But see Walbolt & Lang, supra note 32, at 308 (“Judges generally will welcome briefs that present an important perspective or legal argument that otherwise might be overlooked by the main litigants . . . ”).26 See Walbolt & Lang, supra note 32, at 308; Lynch, supra note 14, at 43, 45; Simard, supra note 12, at 694-95. 27 Walbolt, supra note 32, at 308.

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process with outside expertise reflects the awareness that judges

are often “generalists” who nonetheless must make decisions that

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.

Instead, the value of the briefIt 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 to a brief’s value. The majority of former

Supreme Court law clerks “explained that amicus briefs were most

helpful to them in cases involving highly technical and

specialized areas of law, as well as complex statutory and

regulatory cases.”30

28 Id. at 277.29 Simard, supra note 12, at 694-95.30 See, e.g., Huffman, supra note 2, at 26 (explaining that former Chief Judge Michel has requested amicus briefs that look at practical aspects in the marketplace).

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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 One

state appellate judge has 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 policy issues in a pending decision “that will have a

ripple effect . . . detail the “ripple effects” of a possible

decision.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 thise 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

31 See S. Lloyd Smith, An Interview with Chief Judge Randall R. Rader, LANDSLIDE, March/Apr. 2011, at 5, 6-7. 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 6-7.32 Id. at 6.33 Id. at 7.34 See Federal Rule of Appellate Procedure 29.35 See Federal Rule of Appellate Procedure 29.id.36 Id.

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information” in amicus briefs iswas “frequently factual and non-

legal in nature.”37

[B.] Amicus Briefs Tthat Courts Ddo Nnot Consider to Bbe

Helpful

Many appellate judges agree that an amicus brief restating a

party’s argument is generally not helpful.38 According to one

judge, “‘[M]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 briefsThese may be considered an “echo” of

a party’s argument and will thus not receive any attention.40

Although there is some evidence that federal appellate-level

judges may actually appreciate these arguments,41 it does not

appear that this is true for the Federal Circuit.42

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

37 See Federal Circuit Local Rule 29.38 See Ruben J. Garcia, A Democratic Theory of Amicus Advocacy, 35 FLA. ST. U.L. REV. 315, 323 (2008) (citing Federal Circuit Local Rule 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.”).39 Federal Circuit Local Rule 29(b).40 Second Circuit Local Rule 29.1(a);, Fifth Circuit Rule 29.4; Ninth Circuit Advisory Committee Note to Rule 29-2; D.C. Circuit Rule 29(b).41 Ninth Circuit Advisory Committee Note to Rule 29-1.42 Id.

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one of the parties.” 43 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 . . . .”44 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.”45

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

partsection 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.46 andIn general, FRAP 29 guides federal courts of

appeals and their parties on how to approach themamicus briefs.47 43 Huffman, supra note 2, at 26-27; Smith, supra note 43, at 6-7.44 See Frey, supra note 17, at 5 (citing In re Heath, 331 B.R. 424, 430 n.4 (B.A.P. 9th Cir. 2005)). 45 Voices for Choices v. Ill. Bell Tel. Co., 339 F.3d 542, 545 (7th Cir. 2003).46 Id.47 Miriam Rozen, U.S. Supreme Court Justice Ruth Bader Ginsburg — and one-time Oklahoma resident — shares thoughts on what she reads and what she doesn’t, TEXAS LAWYER BLOG (Aug. 30, 2011), http://texaslawyer.typepad.com/texas_lawyer_blog/2011/08/us-

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The ruleIt explains (1) when amicus briefs are permitted; (2)

whatrequired motions are required for filing thesefor leave to

file the briefs; (3) the contents and form of an amicus brief;

(4) the permissible length of an amicus briefs; (5) the time for

filing them; (6) the general bar on amici submitting reply

briefs; and (7) the general bar on amici participating in oral

arguments.48 Like the other courts of appeals, the Federal

Circuit follows FRAPRule 29, but it has also supplemented the

FRAP with its own local rule.49 That additional rule suggests

that the Federal Circuitit may be more proactive about securing

amicus briefs than other circuits.50 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 1.51

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

supreme-court-justice-ruth-bader-ginsburg-and-one-time-oklahoma-resident-shares-thoughts-on-what-.html.48 See Simard, supra note 12, at 688. Justice Ginsburg’s statement and actions reflect the earlier discussion on judges’ varying treatment of amicus briefs. See supra Part I.49 See Maples v. Thomas, --- U.S. ----, No. 10-63, slip op. at 3, 17 n.8 (Jan. 18, 2012).50 Justice Alito’s comments in Neonatology Assocs., P.A. v. Commissioner of Internal Revenue, 293 F.3d 128, 132 (2002) suggest that he may be in this camp. See, supra Part I.51 See Huffman, supra note 2, at 27.

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brief would cause recusal of a judge,52 filing of briefs when a

rehearing has been ordered,53 word limits,54 making a motion to

file briefsthem,55 and filing of a letter in lieu of a brief.56

The list that Federal Circuit Local Rule 29 refers to,

however, is minimal. The current list has but eight associations

and organizations on it.57 None of these are solely dedicated to

government contracts practice.58 And aAlthough 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 at all.59 Rather, Tthe five remaining groups are

intellectual-property associations/organizations, and one is the

National Organization of Veterans’ Advocates.60

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

52 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).53 See id. at 4, 10; Smith, supra note 42, at 6 (quoting Chief Judge Rader as saying “Yes, I like amicus briefs.”).54 See Huffman, supra note 2, at 26; Smith, supra note 42, at 6.55 See supra note. 6 and accompanying text.56 See Huffman, supra note 2, at 26.57 See, e.g., Smith, supra note 42, at 6.58 The remainder of this Section will analyze these actions.59 See, e.g., Smith, supra note 42, at 6.60 See infra III.A.2.

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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, beyond the court instituting the Local Rule 29 list,

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.61

The first approach — preventing the filing of amicus briefs

at the appellate level — is the minority approach.62 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. 63 These circumstances are

when: (1) “in a case in which a party is inadequately

represented,;” (2) “in which the would-be amicus has a direct

interest in another case that may be materially affected by a

decision in this case,;” or (3) “in which the amicus has a unique

perspective or specific information that can assist the court

beyond what the parties can provide.”64

Under the second approach, some judges have stated that they

do not try not to prevent amicus filings but nonetheless tendthat

they simply do not to read every brief filed. For

exampleinstance, in August 2011 Justice Ruth Bader Ginsburg 61 The Court of Appeals for the Federal Circuit clerk was unable to provide this information.62 See M. Maropakis Carpentry v. United States, 609 F.3d 1323 (Fed Cir. 2010).63 See id. at 1327.64 Id. at 1325.

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stated, “I have to confess, I don’t read all of [the amicus

briefs filed]. In fact, I don’t read most of them.”65 Her

comment should, 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.66 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 opinion,

announced in 2012, cited multiple amicus briefs.67

Going beyond the Ginsburg-type approach, tThe third approach

to amicus briefs involvesincludes judges who not only appear to

read theamicus briefs but have openly stated that they find such

briefsthem particularly useful.68 For exampleinstance, former

Chief Judge Michel, stated “that amicus briefs were very

important in helping the [Federal Circuit]court to determine

whether to take a particular case en banc.”69 The current Chief

65 See id. at 1326.66 Id.67 Id.68 See M. Maropakis Carpentry 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 52.233-1(c).69 See M. Maropakis Carpentry, Inc. v. United States, 609 F.3d at 1331.

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Judge of the Federal Circuit has recognized that there are some

practical difficulties in filing amicus briefs,70 but like Chief

Judge Michel he also has encouraged their submission whenever

possible.71

IV. Forgetting What the Other Wants: Why the Use of Amicus

Briefs Could Be Better

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

judges have explicitly and implicitly stated that amicus briefs

will be considered,72 why aren’t there more amicus briefs filed

in government contracts cases?73 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.74

The following will explain the issues in government

contracts amicus -briefs filedings at the Federal Circuit. It

will also suggest that when amici file briefs, both the Federal

Circuitcourt and the amici may be more concerned with their own

needs than with what the others’ needs. Nevertheless, each side

could actually reap benefits from considering the other’s’

situation.

70 See iId. at 1329-30.71 See generally, iId.72 See iId. at 1323, 1332.73 See iId. 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)).74 M. Maropakis Carpentry, Inc., 609 F.3dSee id. at 1330-31.

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[A.] The Federal Circuit Sends Mixed Signals on Its Approach

to Amicus Briefs, Which Ultimately Deterings Amici

Participation

Despite the fact that the Federal Circuit’s leadership has

stated they find amicus briefs useful,75 this claim has not

necessarily been reflected in all of the court’s opinions.76

Thus, despite the fact that some Federal Circuit judges have said

they are explicitly open to amicus filings,77 other Federal

Circuit judges’ actions may deter amicus filings.78

[1.] Federal Circuit Local Rule 29 Hhas Nnot Been

Utilized to Appeal to the Government Contracts

Community

To date, Tthere has beenis no evidence that there have been

any outreachcalls to the government contracts community by means

75 As mentioned above, “ripple effects” often concern judges. See Walbolt & Lang, supra note 32, at 277 (quoting Florida Justice Charles T. Wells).76 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, http://www.wileyrein.com/publications.cfm?sp=articles&newsletter=3&id=6266 (last visited May 3, 2012); Jocelyn Allison, Fed. Circ. Puts Contractors on Offense in Maropakis, LAW360, http://www.law360.com/articles/189380 (last visited May 3, 2012).77 See, e.g., Sacilotto, supra note 91; McKenna Long & Aldridge LLP, 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 (July 6, 2010), http://www.mckennalong.com/publications-advisories-2345.html (last visited July 15, 2012).78 Allison, supra note 91 (quoting attorney Kevin Cosgrove).

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ofmade through the Federal Circuit Local Rule 29 list.79

Nevertheless, there are areas where it could be used

easily.However, reaching out toIndeed, the government contracts

community’s couldresponse to some cases suggests at least one

area where such calls may be particularly useful, especially:

when the Federal Circuit decidesing a case that appears to have

no grounding in binding precedent. Why such outreach is

necessary can be illustrated by thethe decision in M. Maropakis

Carpentry, Inc. v. United States decision,80 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.81 M. Maropakis Carpentry, Inc. (“Maropakis”) had held a 79 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[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.”). 80 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, Inc. v. Dep’t of Agric., CBCA No. 2445, 12-1 BCA ¶ 34,979, at 171,932.81 For instance, the McDonnell Douglas Corp. v. United StatesA-12 case 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 (2009). In that case, the Federal Circuit

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contract for replacing windows and a roof on a Navy building.82

There were issues in completing the performance of the contract,

and Maropakis brought suit at the Court of Federal Claims.83

Maropakis claimed that it was entitled to time extensions and

thus a remittance of the liquated damages that the Government had

assessed and withheld.84 The Government then brought a

counterclaim in response for the balance of its liquidated

damages assessment.85

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”) claim requirements.86

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.87 Essentially, the

contractorit argued that a valid CDA claim was not necessary

opinion, which Chief Judge Michel authored, considered the amicus position, citing its arguments several times. Id. at 1351, 1354.82 Lockheed Martin Corp. v. United States, 210 F.3d 1366 (Fed. Cir. 2000).83 Lockheed Martin Corp. v. United States, 210 F.3d 1366, 1367-68 (Fed. Cir. 2000),See id. at 1367-68 (Fed. Cir. 2000). 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.84 ATK Thiokol, Inc. v. United States, 598 F.3d 1329 (Fed. Cir. 2010).85 Chief Judge Michel made his statements on Dec. 4, 2009. See Huffman, supra note 2, at 24. The court issued itsthis opinion in ATK Thiokol, Inc. on March 19, 2010. ATK Thiokol, Inc., 598 F.3d at 1329.86 ATK Thiokol, Inc.,Id. at 1330.87 See generally id.

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because its “claim” for a time extension was actually a “defense”

to the government’s claims for liquidated damages.88 Thus, the

appeal 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.89

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

contractor had not brought a valid CDA claim.90 In addressing

the contractor’s new argument about making a defense rather than

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

precedent, but. Iinstead it relied on decades-old decisions of

the Claims Court.91 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.92

The precedent set inial Maropakis decision has created more

than “a “ripple effect;”93 by some accounts it has created full-

88 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 12, at 688.89 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).90 Id.91 See Gregory A. Caldeira & John R. Wright, Amici Curiae before the Supreme Court: Who Participates, When, and How Much?, 52 J. POL. 782, 8004 (1990).92 Stephanie Francis Ward, Friends of the Court Are Friends of Mine, ABA Journal, Nov. 2007, at 24, 25. 93 See Harrington, supra note 104, at 697.

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fledged waves.94 In response to the opinion, many government

contracts law firms and practice groups have issued “client

alerts” or their equivalent.95 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 . . . .

.’”96 Furthermore, prominent government contracts academics have

published criticisms of the opinion.97 There has also been

pushback from both of the government contracts claims-disputes

forums below the Federal Circuit.98 94 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.”)95 Id.96 For example, Tthe authoring judge of the Lockheed Martin Corp. opinion, —Judge Lourie, —has on multiple occasions referred to amicus briefs. See, e.g., Ass’n for Molecular Pathology v. United States, --- F.3d ----, No. 2010-1406, slip op. at 49 (Fed. Cir. Aug. 16 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 (2012) (noting which briefs supported which parties).97 See, e.g., Ass’n for Molecular Pathology, --- F.3d ----, No. 2010-1406, slip op. at 49 (Fed. Cir.); Marine Polymer Techs., 672 F.3d at 1361 n. 6, n.7; Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 672, 678 (2008); Wolfchild v. United States, 559 F.3d 1228, 1236-37 n. 4 (2009).98 In contrastConversely, the briefs submitted in the cases noted in note. 111 generally were framed as providing policy positions—even when grounded in the law. See, e.g., Brief for Nike, Inc. as Amicus Curiae Submitted with Leave of the Court at 1-2, Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (2007) (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 precedentnce,; (3) the panel decision cannot be applied with

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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

government contracts community (and ineven the forums below,

which the receipt and consideration of briefs filed by government

contracts related amici could have provided the court).

1.[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,99 the court has also issued its

fair share of opinions that have failed to address filed amicus

briefs all. For exampleinstance, thea 2000 Lockheed Martin Corp.

consistency,; and (4) the panel decision will create confusion in an already confusing analysis).99 For instance, cCompare 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 (2009) (No. 2009-5036), 2009 WL 2610094 (“The g[G]overnment’s interpretation of ‘required in the performance of a contract’ ignores the regulatory system created by FAR Part 31 and CAS within which the definition operates. Instead, the government argues the instant case from a strained interpretation of regulatory history and rejection of directly pertinent case precedent.”), with Brief of Plaintiff-Appellee at 13, ATK Thiokol, Inc. v. United States, 598 F.3d 1329 (2009) (No. 2009-5036), 2009 WL 2405124 (“The g[G]overnment’s argument is wrong. It is the g[G]overnment’s argument that runs contrary to the expansion of 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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v. United States opinion100 did not mention any of the briefs that

amici filed in the appeal.101

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

Lockheed Martin Corp. case. The 2010 decision in ATK Thiokol,

Inc. v. United States102 case is anotherbut one more example of

this trend. The court issued this decision Ffour months after

Chief Judge Michel urged government contracts experts to file

more amicus briefs at the Federal Circuit, the court issued this

decision.103 ATK Thiokol, Inc. had two amicus briefs filed,104

neither of which the panel mentioned in its opinion.105 100 See Brief of Hughes Electronics Corp. & Raytheon Co. as Amicus Curiae, Lockheed Martin Corp. v. United States, 210 F.3d 1366 (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 (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.”).101 See Walbolt & Lang, supra note 32, at 308.102 See id.; Lynch, supra note 23, at 42.103 See Simard, supra note 12, at 688. 104 And, indeed, the courts’ holdings suggests that they were correct in that the Federal Circuitwhen they held in the position that the amici supported. See generally 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).105 See, e.g., Flango et al, supra note 31, at 187. TheAn amicus brief’s summary of the argument section is of particular importancehighlighted here because it willis one of the most important parts of any amicus brief and typically determine how closely any amicus’ arguments will be read. See Lynch, supra

23

This lack of acknowledgement of an amici’s argument has

impacts beyond the current opinion. It sends an implicit message

to the potential amicus brief filers — and to the government

contracts community as a whole — that the Federal Circuitcourt

may not care about what amici haveit has to say.106 Such anThis

implicit message serves as a deterrent for future filings.107

This deterrence is best illustrated when considering the cost of

an amicus briefs.108 Amicus briefs cost clients between $10,000

and -$15,000,109 and may cost as much as $100,000.110 When there

is no guarantee that a judge will read the brief, prospective

amicus filers have little incentive to pay the legal fees.111 A

lack of 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.112

note 14, at 44, 45 (explaining that when clerks screen amicus briefs for their justicejudge, 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 45.106 See Bennett, supra note 9, at 886.107 Collins & Martinek, supra note 11, at 128 (explaining that most appeals end at the circuit-court level).108 Collins & Martinek, supra note 11, at 128 (explaining that most appeals end at the circuit court level).Id.109 Id.110 See Court Jurisdiction, supra note 3.111 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).112 Roy E. Hofer, Supreme Court Reversal Rates: Evaluating the Federal Courts of Appeals, LANDSLIDE, January/February 2010, at 8, 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

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Without proof that the panels are reading their briefs,

professors will likely face pressure to use their hours on other

projects or on publication.113

[B.] Courts Generally Ddo Nnot Read Briefs with the Types of

Arguments That Government Contracts Amici Have

Presented toat 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 Corp. and ATK Thiokol, Inc. opinions

seems completely averse to amicus briefs.114 Indeed, both of

those judges have acknowledged amici’s arguments in other

cases.115 Thus, the fact that these judges did not mention the

amicus briefs in the Lockheed Martin Corp. and ATK Thiokol, Inc.

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.116 In the ATK

Thiokol, Inc. case, the amici provided arguments that were

comparable to one of the party’s arguments.117 Similarly, in

Circuit. See Smith, supra note 42, at 7.113 Hofer, supra note 126, at 9.114 See Federal Circuit Local Rule 29.115 See supra Part III.116 M. Maropaks Carpentry, Inc. v. United States, 609 F.3d 1323, 1331 (2010).117 Huffman, supra note 2, at 27.

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Lockheed Martin Corp., the amicus briefs provided additional

arguments to support the basis of the contractor’s legal

reasoning.118 However, Tthese reiteration arguments are

typicallythe type that “are of no value to judges and will be

disregarded.”119

Thus, framing the briefs as based on arguments similar to

the appellee’s argument suggested they provided information that

was nearly exactly what many judges have said they are not

looking for in amicus briefs.120 For judges who may make

Ginsburg-like piles121 of amicus briefs, this type of brief will

likely be skipped when the parties have adequate representation.

Therefore, Rregardless of whether these amici were correct

in their arguments,122 the Federal Circuitcourt likely did not

cite or address these arguments because they were not framed as

118 Lockheed Martin Corp. v. United States, 210 F.3d 1366, 1367-79 (Fed. Cir. 2000).119 ATK Thiokol, Inc. v. United States, 598 F.3d 1329, 1330-36 (Fed. Cir. 2010).120 See supra III.B.121 See Contract Cost Accounting, SHEPPARD MULLIN, http://www.sheppardmullin.com/practices-22.html (last visited Sept. 16, 2012) (“No aspect of Government contracting differs 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 Government contracts is subject to a startling array of extraordinarily complex rules, many of which are wholly inconsistent with customary commercial practice.”)”; see also Lynch, supra note 14, at 41 (discussing clerks’ desire to have amicus briefs in tax cases because of the complexity inherent in the law).122 See Lynch, supra note 14, at 41.

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the type of arguments that the Federal Circuit judges wanted to

hear.123

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: they want their

decisions to come out the “right” way..124 They want to come out

the “right” way.

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.125 Indeed, in government contracts

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

winning a case. Sscholars have noted that “for all practical

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

resort in the federal judicial system . . . .” 126 This is due to

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

many appeals are disposed of by the courts of appeals.”127 123 See Simard, supra note 12, at 698.124 See Walbolt & Lang, supra note 32, at 277; see also Huffman, supra note 2, at 26; Smith, supra note 42, at 6.125 See, e.g., Flango et al, supra note 31, at 187; Smith, supra note 42, at 7.126 See Huffman, supra note 2, at 26.127 Huffman, supra note 2, at 26.

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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.128 Because the

Federal Circuit is the only appellate court hearing government

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

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

certiorari.129 Indeed, over a 10-year span, the Federal Circuit

had only 30 cases reviewed by the Supreme Court.130 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,131 and has an average of just 3 cases per year that

are taken up by the Supreme Court, 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 must accept the Federal Circuit’s “Supreme

Court of Government Contracts” status and treat amicus briefs

there as such. In arguing this, thise Notearticle will

challenges both the community and the Federal Circuitcourt to 128 Carnegie, supra note 1 at 200.129 See Federal Circuit Local Rule 29.130 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).131 Robert W. Bennett, Counter-Conversationalism and the Sense of Difficulty, 95 NW. U.L. REV. 845, 886 (2001).

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make adjustments and show that each side is willing to be a

better “friend” for the sake of the interests ofin order to best

influence government contracts law.

[A.] The Federal Circuit Should Address Briefs Tthat 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.132 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.133 Even if the parties have not

characterized anthe issue as one of first impression, —as

occurred in Maropakis,134 —the Federal Circuit shoulda Supreme

Court of Government Contracts must treat it as one when

132 Neonatology Assocs., P.A. v. Commissioner of Internal Revenue, 293 F.3d 128, 132 (2002) (quotingciting Luther T. Munford, When Does the Curiae Need an Amicus?, 1. J. APP. PRAC. & PROCESS 279, 281 (1999)).133 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).134 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).

29

applicalbe. And because cases of first impression should be

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

effects,135 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

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

Martin Corp.136 and AKT Thiokol, Inc.,137 —creates a powerful

deterrent for potential government contracts amici in the

future.138

[B.] The Government Contracts Community Must Provide Briefs

Tthat Address Wwhat the Court Wants to Hear, —Not Just

What the Amicus Wants to Say

Although the Federal Circuit shouldcan make adjustments to

its approach to amicus briefs, the government contracts community

shouldcan make adjustments as well. To do so, the community must

135 See id. at 693.136 See id. This lack of adequate representation sometimes occursmay be 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. 33, 42 (2004).137 See Lynch, supra note 15.id.138 Simard, supra note 12, at 687 (this is the previously mentioned study, and it included judicial responses from all circuits and at least one response from the Federal Circuit).

30

consider what types of arguments the court is looking to hear

from each type of amici.

The problem with considering the Lockheed Martin Corp. and

the ATK Thiokol, Inc. cases is that in some ways, the community

did consider the Federal Circuit’scourt’s needs. Cost Accounting

Standards and tax credits are difficult issues, even within the

government contracts community.139 These are indeed the types of

issues 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.”140 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.141

If an amicusthe brief is not coming from a government entity

or an academic, arguments should be framed as providing mostly

policy information.142 Even if the amicus is truly advocating for

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

139 See Andrew Frey, Amici Curiae: Friends of the Court or Nuisances?, 33 No. 1 LITIGATION 5, 6 (2006).140 See, e.g., Simard, supra note 12, at 697 (“Amicus curiae briefs offered by governmental entities were favored at all levels of the federal bench”).141 See 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.142 Id.

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policy information and predictions.143 These are the “downstream”

impacts that the Federal Circuit appears to want to hear.144

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

activity as in the court’s other areas of jurisdiction.145 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 article 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 faces. But with these

adjustments, a better relationship between the court and the

community can “[b]egin in a friendly way.”146 The benefits of

such a relationship would not be limited to a single panel or 143 Id.144 See id.145 Frey, supra note 17, at 6.146 See Lynch, supra note 14, at 41.

32

party; they would also provide a stronger foundation for

government contracts law.

33