13.4% Increase in Court's New Cases Filed by Fiscal Year

Transcription

1 I. U.S. Court of Federal Claims Representative Caseload Statistics FY27-FY214 On the floor of the Senate on July 14, 215, Senator Cotton presented statistics based on the number of cases pending in the United States Court of Federal Claims in each fiscal year between 27 and 214. He used those statistics to conclude that the workload of the court has declined between 27 and now. In fact, these statistics, and other statistical measures of the court s workload, do not support his conclusion. The statistics upon which Senator Cotton relied pending cases capture the work of the court that remains undone on a particular date. Those statistics are a snapshot in time and are used by the court and outside parties to measure backlog. Other statistics measure the court s new filings each year. A review of those statistics between FY27 and FY214 clearly show an increase in caseload, as illustrated below: % Increase in Court's New Cases Filed by Fiscal Year General Jurisdiction Cases Filed Bid Protest Cases Filed Vaccine Petitions Filed As demonstrated by these statistics, the number of new cases filed in the court increased by 13.4% in FY214 over FY27.

2 II. U.S. Court of Federal Claims Detailed Explanation of Senator Cotton s FY27-FY214 Statistics This is a reproduction of the graph displayed by Senator Cotton on the floor of the Senate on Tuesday, July 14: 1 Pending Cases End of FY The statistics upon which Senator Cotton relied pending cases capture the work of the court that remains undone on a particular date. Those statistics are a snapshot in time and are used by the court and outside parties to measure backlog. The reason that the chart shows such a decline between FY27 and FY214 can be better illustrated by the following chart, which details the case types that made up the pending cases statistics in the chart above: Pending Cases End of Fiscal Year Pending Vaccine Cases - Thimerosal Pending Vaccine Cases - Other Pending General Jurisdiction Cases

3 As is clear from the graph, a large majority of the cases pending in FY were a specific type of vaccine injury case in the court s Office of Special Masters (OSM), a subsidiary office within the court, which by statute has eight special masters dedicated to resolving those cases. As of FY27, many of the thimerosal cases had been pending for years. These vaccine cases were filed by thousands of individuals who believed that their loved one s autism disorders had been caused by thimerosal-containing vaccines. In 22, the OSM held a series of meetings with an informal advisory committee to address the task of dealing with these claims, and in July of that year, the OSM issued Autism General Order #1, establishing a special ground-breaking procedure to address the thousands of claims that had already been received and were expected to continue in an Omnibus Autism Proceeding (OAP). On February 12, 29, and March 12, 21, the OSM issued opinions on causation in the three lead cases, and then all of the OSM set about resolving over 5,6 thimerosal cases that had been filed. Since that time, the OSM has been efficiently adjudicating and resolving individual pending claims, leading to the drastic reduction in pending cases seen in Senator Cotton s graph between FY211 and FY212. Only 1 of those cases are still pending at this time. Rather than an indication of a declining workload in the Court of Federal Claims and the OSM, this graph is a poignant illustration of the important role of the court s OSM in adjudicating individual claims made by American citizens who suspect they ve been injured by the administration of a schedule vaccine. By creating the OAP, the OSM saved petitioners and the government hundreds of thousands of dollars, if not millions, in litigation costs.

4 III. U.S. Court of Federal Claims Case Complexity & Fiscal Impact of Decisions While statistics regarding the court s caseload can be informative, there is a major characteristic of the court s caseload that is not captured by any case statistics: the complexity and national significance of the court s adjudicative work. Some examples: Given the court s national jurisdiction, many cases are essentially multidistrict litigation, involving parties from different states or regions of the country. Many of the court s cases actually encompass the claims of hundreds or thousands of individual plaintiffs with their own individual claims alleging injuries caused by the same alleged government action (e.g., savings & loan collapse, spent nuclear fuel disposal, TARP bailout, etc.). The court has developed highly effective class action procedures that resolve these cases in the most fiscally and judicially effective way, allowing the consideration of common issues in either one complaint or a lead case, then individually adjudicating the personalized claims of the individual plaintiffs. By way of illustration, in examining just one judge s docket of cases pending as of today, the court discovered 19 multi-party cases involving 1,47 individual claims. This is typical of the court s docket. The court s decisions have an immediate effect on citizens and the government s fiscal responsibilities, putting the judges in a position of financial stewardship. Not only are the damages claimed in cases before the court frequently in the range of millions or billions of dollars, but when a judge determines that damages are owed by either a plaintiff or the government, generally, interest on any resulting award must be calculated from the date the claim first arose. In the event of delay in adjudicating a case delay that could result from a shortage of judges on the bench this impact can run into the hundreds of thousands of dollars. This money comes directly from the Judgment Fund, which is funded with appropriated dollars. Judicial expenses pale in comparison to the amount of government funding involved in the cases resolved by the court, and the effect that delay can have on the cases it adjudicates. As the people s court, the court s judges are aware of the need to adjudicate matters with speed and efficiency, as often a citizen s or a corporation s livelihood may be at stake. And lastly, the most complex of the court s general jurisdiction cases is bid protests. These cases are universally complex and sophisticated, involving millions of dollars in alleged damages and cross-claims as well as multiple parties, frequently involving intervening defendants.

5 Bid protest cases are filed in the court pursuant to 28 U.S.C. 1491(b)(1). These cases often require immediate hearings on requests for temporary restraining orders: The court s practice is to expedite protest cases to the extent practicable and to conduct hearings on motions for preliminary injunctions at the earliest practicable time. Accordingly, when a plaintiff seeks a preliminary injunction, it may not need to request a temporary restraining order. Rules of the United States Court of Federal Claims (RCFC), Appendix C, V.9. Given the profound impact that bid protest cases can have on procurement actions throughout the federal government, these cases demand expedited procedures throughout the life of the cases. In fact, by law, the court is required to give due regard to the need for expeditious resolution of actions that involve the interests of national defense and national security, which make up a large part of the court s bid protest action. See 28 U.S.C 1491(b)(3). The court generally resolves these cases within three to four months of filing, to comport with the statutory and regulatory deadlines for the resolution of bid protest cases when filed before the Government Accountability Office (GAO) instead of the court. (The Comptroller General of the GAO is authorized to hear bid protests and make recommendations to agencies regarding their procurement decisions. 31 U.S.C. 3552(a). GAO shall issue a decision on a protest within 1 days after it is filed. 31 U.SC. 3554(a)(1); GAO Bid Protest Regulation 21.9(a). If a federal government contractor is unhappy with a decision at the GAO, it may later file the same action in the court.) All of the work to resolve these and other cases is done in chambers and from the bench; our judges do not have the benefit of juries or magistrate judges to assist. In recognition of the unique demands of these cases, the court has created a separate assignment wheel apart from other general jurisdiction cases. It is these bid protest cases that are currently putting the largest strain on the court; given the necessity for priority handling and the frequency with which the ten active judges currently accepting bid protest cases through the wheel are assigned a case, the court s work on the other general jurisdiction cases slows. The following chart illustrates the statistics for bid protest complaints filed and resolved since FY27:

6 Bid Protests Bid Protests Filed Bid Protests Resolved Based on current numbers and anecdotal evidence from the U.S. Department of Justice, the court projects that FY215 bid protest statistics will exceed FY214 in both filings and dispositions.