Archer, Jr., Glenn L.

English

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INTRODUCTIONGLENN L. ARCHER, JR.*In introducing the 1995 Federal Circuit edition of The AmericanUniversity Law Review, it is my pleasure as the ChiefJudge to report onrecent developments involving the United States Court of Appeals forthe Federal Circuit.At this writing, the Federal Circuit is at full strength for the firsttime in many years with a complement of twelve active circuit judges.The court's senior judges, with their many years of experience, arealso active as they regularly participate in our judicial work. Fortheir continuing help, the court is grateful. During the recent past,the Federal Circuit has also been assisted by several visiting judgesfrom other federal trial and appellate courts. Even with someadditions to the court's subject matter jurisdiction and expansion ofcaseload, the Federal Circuit continues to bring cases to oralargument and disposition expeditiously. The dedicated work of boththe judges and the court's lean but efficient staff contribute impor-tantly to this result.First, I must note with sadness the passing of our esteemedcolleague, Senior Judge Jack Miller, who died in August 1994. JudgeMiller, a former Senator from Iowa, was one of the initial activejudges when the Federal Circuit court was created in 1982. He tooksenior status in June 1985, but continued to participate in the workof the court until shortly before his death. Indicative of the friend-ship and respect Judge Miller earned is the fact that his formercolleagues in the Senate confirmed his nomination as a federal judgein just eleven minutes, the shortest time in history.The Federal Circuit recently welcomed its newestjudge, William C.Bryson, in October 1994. Judge Bryson came to the Federal Circuitfrom the United States Department of Justice, where he was ActingAssociate Attorney General. He served in other important capacities* ChiefJudge, United States Court of Appeals for the Federal Circuit.2109THE AMERICAN UNAVERsiTY LAW REvEW [Vol. 44:2109during his Department ofJustice career, including two stints as ActingSolicitor General, where he personally argued thirty-one cases in theSupreme Court and more than one hundred cases in the federalcourts of appeal. He was a law clerk to both Justice ThurgoodMarshall and Circuit Judge HenryJ. Friendly.One of the court's most noteworthy events of the last year involveda birthday. The Federal Circuit Bar Association celebrated JudgeGiles S. Rich's ninetieth birthday in style at the Willard Hotel withabout 300 in attendance.Finally, on the topic ofjudges, the Federal Circuit received a newChief Judge last year. Judge Helen W. Nies vacated the position ofChief Judge on March 17, 1994, and I had the honor of becomingher successor. Judge Nies served with distinction for four years as theFederal Circuit's ChiefJudge. An engaging speaker, she representedthis court throughout the country and in other parts of the world.Judge Nies was an efficient administrator for the court; she participat-ed actively on the deliberations of the Judicial Conference of theUnited States while simultaneously carrying nearly a full active judgecaseload. Judge Nies has continued as an active judge of the courtbut recently announced that she will take senior status by January 1,1996.The decisions of the Federal Circuit in the past year have contribut-ed to the development of the many areas of law over which the courthas appellate jurisdiction. As this volume demonstrates, importantopinions were issued in virtually every subject area. Cases involvingclaims under the Vaccine Act,' veterans law, and patents wereaccepted for review by the Supreme Court.2 The most definingfeature of 1994, however, was not the number or importance of newprecedential opinions, but rather the full court's willingness in itstwelfth year to examine some of its existing precedents and areas ofperceived conflict.The Federal Circuit has recently been engaged in an unprecedent-ed amount of in banc activity. The court takes a case in banc onlywhen there is a conflict in precedent or if the question presented isof such exceptional importance that it warrants attention by the fullcourt.3 In 1994, the Federal Circuit sitting in banc heard oral1. 42 U.S.C. § 3O0aa-1 (1988 & Supp. V 1993).2. See, ag., Whitecotton v. Shalala, 17 F.3d 374 (Fed. Cir. 1994), rev'd, 115 S. Ct. 1477(1995); Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), af'd, 115 S. Ct. 552 (1994); AsgrowSeed Co. v. Winterboer, 989 F.2d 478 (Fed. Cir. 1993), rev'd, 115 S. Ct. 788 (1995).3. See FED. CIR. R. 35 (stating that hearing or rehearing will ordinarily not be orderedunless necessary to maintain uniformity of decisions or unless proceeding involves question ofexceptional importance); FED. R. AP'. P. 35 (same).21101995] INTRODUCTION 2111arguments in seven cases,4 took another two cases in banc withoutoral argument,' and issued five in banc opinions (including two casessubmitted the previous year).6 In December, the court issuedanother order to take a case in banc and heard oral argument in early1995.1 An opinion was issued in that case8 as well as in four otherin banc cases argued in 1994.' Two other cases that had been takenin banc were returned to the original panels for disposition.°This activity by the full court is a sign of a healthy court. Itdemonstrates that the judges in the Federal Circuit will respond todifficult legal issues, including reexamining precedent, whereappropriate, to correct possible deviations, and to adjudicate withfinality competing interests. This is especially important for a courtthat has exclusive nationwide jurisdiction over its subject areas.Arriving at a decision that satisfies a majority of the in bancjudgesis a difficult feat. As the opinions Alapat,11 Markman, -12 Rite-Hite,3and Hilton-Davis14 illustrate, the judges of the Federal Circuit oftenhave very independent, and sometimes conflicting, views on the law.Although dissents and concurrences may be vigorous, the differencesshould never be perceived as personal conflicts. The judges of theFederal Circuit all have great respect for one another, both on aprofessional and a personal level. As aptly stated by Judge Newman,"the occasional 'percolation' of divergent views illustrates the vigor of4. SeeHilton Davis Chem. Co. v. warner-Jenkinson Co., No. 93-1088,1995 U.S.App. LEXIS21069 (Fed. Cir. Aug. 8, 1995); Pal Corp. v. Micron Separations, 62 F.3d 1402 (Fed. Cir. 1995);Rite-Hite Corp. v. Kelley Co., 56 F.3d 1538 (Fed. Cir. 1995); Markman v. Westview Instruments,Inc., 52 F.3d 967 (Fed. Cir. 1995); Loveladies Harbor, Inc. v. United States. 27 F.3d 1545 (Fed.Cir. 1994); Wilner v. United States, 24 F.3d 1397 (Fed. Cir. 1994); Winstar Corp. v. UnitedStates, 994 F.2d 797 (Fed. Cir. 1993).5. See King Instruments Corp. v. Perego, 59 F.3d 163 (Fed. Cir. 1995); Texas Am. OilCorp. v. Department of Energy, 37 F.3d 1483 (Fed. Cir. 1994).6. Texas Am. Oil Corp. v. Department of Energy, 44 F.3d 1557 (Fed. Cir. 1995); LoveladiesHarbor, Inc. v. United States, 27 F.3d 1545 (Fed. Cir. 1994); Wilner v. United States, 24 F.3d1397 (Fed. Cir. 1994); In reDonaldson Co., 16 F.3d 1189 (Fed. Cir. 1994); In re Alappat, 33 F.3d1526 (Fed. Cir. 1994).7. Reflectone, Inc. v. Dalton, 34 F.3d 1039 (Fed. Cir. 1994).8. Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed. Cir. 1995).9. Rite-Hite Corp v. Kelley Co., 56 F.3d 1538 (Fed. Cir. 1995); Markman v. WestviewInstruments, Inc., 52 F.3d 967 (Fed. Cir. 1995); Hilton-Davis Chem. Co. v. Wamer-Jenkinson Co.,No. 93-1088, 1995 U.S. App. LEXIS 21069 (Fed. Cir. Aug. 8, 1995); Winstar Corp. v. UnitedStates, No. 92-5164, 1995 U.S. App. LEXIS 24416 (Fed. Cir. Aug. 30, 1995).10. Pall Corp. v. Micron Separations, Inc., Nos. 91-1393,-1394,-1409, 1995 U.S. App. LEXIS22306 (Fed. Cir. Aug. 14, 1995); King Instruments Corp. v. Perego, 59 F.3d 163 (Fed. Cir. 1995).11. 33 F.3d 1526 (Fed. Cir. 1994).12. 52 F.3d 967 (Fed. Cir. 1995).13. 56 F.2d 1538 (Fed. Cir. 1995).14. No. 93-1088, 1995 U.S. App. LEXIS 21069 (Fed. Cir. Aug. 8, 1995).THE AMERICAN UNIVEsRY LAW REVIEW [Vol. 44:2109the judicial search for truth, the sometimes indirect progress towardsjustice and fairness that animate the law."' 5The past year witnessed other ways in which the court was respon-sive to the concerns of those who practice before it or are affected byits decisions. For instance, the Federal Circuit Rules were amendedin response, in part, to concerns and suggestions made by membersof the bar. The Federal Circuit continues to enjoy the benefits of anactive and informed bar. Thejudges value the constructive commentsand suggestions regarding rules, procedures and other matters ofconcern to practitioners. We often receive this input at bar meetings,including the Federal Circuit Judicial Conference held annually inWashington, D.C., which all the judges of the court attend. At themost recent conference in May 1995, at the Washington Hilton Hotel,a panel of the court's judges responded to questions and commentsfrom practitioners. This part of the program, as well as the otherpanels and the breakout sessions, were most successful in promotingdialogue in the areas of this court's jurisdiction.What is in store for the future? Quite a bit, judging from the past.In terms ofjurisdiction, the Federal Circuit is anticipating additionaltypes of cases to be added to its docket as a result of new provisionsin the General Agreement on Tariffs and Trade (GATT) 6 and theNorth American Free Trade Act (NAFTA).j More recently, Con-gress passed and the President signed the Congressional Accountabili-ty Act 8 which gives the Federal Circuit appellate jurisdiction over awide range of discrimination, personnel, and labor issues in casesemanating from Congress, the Library of Congress, the GeneralAccounting Office, and the Government Printing Office.Another change is that the Federal Circuit is again holding someoral arguments in cities other than Washington, D.C. The FederalCircuit is a national court, whose jurisdiction is not confined by thegeography of any particular region of the United States. Thelegislation creating the court provides the authority to hold specialcourt sessions in other cities. 915. The Honorable Pauline Newman, The Federal Circuit: Judicial Stability orJudidal Aclivsm,42 AM. U. L. REV. 683, 683 (1993).16. Uruguay Round Agreements Act, Pub. L No. 103-465, 108 Stat. 4809 (codified at 19U.S.C. § 3501 note (1994)).17. NAFIA Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057 (to be codified at 19U.S.C. § 3301 note (1994)).18. Congressional Accountability Act of 1995, Pub. L. No. 104-1, 109 Stat. 3 (codified at 2U.S.C. § 1301 note (1994)).19. See 28 U.S.C. § 48(a) (1988).21121995] INTRODUCTION 2113The court plans to finish its program of expansion into the DolleyMadison and Cosmos Club buildings. Two judges have alreadyrelocated to newly redecorated chambers in those buildings. A thirdchambers is currently under construction.Thejudges of the Federal Circuit are benefited by scholarlyjournalssuch as this. I speak for the other judges on the court when I say thatthe criticisms, both positive and negative, we receive from thecommentators who are attentive to our work are helpful. Thus, Iappreciate this opportunity to provide the introduction to the 1995Federal Circuit edition of The American University Law Review, which isdedicated exclusively to the work of the United States Court ofAppeals for the Federal Circuit.

Introduction A Review of Recent Decisions of the United States Court of Appeals for the Federal Court

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Introduction A Review of Recent Decisions of the United States Court of Appeals for the Federal Court

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