The Future: Scrutinizing The Empirical Case For the Court of Federal Claims

THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO. 50 The Future: Scrutinizing The Empirical Case For the Court of Federal Claims STEVEN L. SCHOONER This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract_id=355360

THE FUTURE: SCRUTINIZING THE EMPIRICAL CASE FOR THE COURT OF FEDERAL CLAIMS STEVEN L. SCHOONER * DRAFT: George Washington Law Review Vol. 70 (forthcoming 2003) Table of Contents I. Introduction...1 II. Neither Fish Nor Fowl: A Specialty Court?...6 A. Dissecting The Court s Workload...10 1. What Comes In? What Comes Out?...11 2. What Comes In: Case Filings...15 3. What Comes Out: Published Opinions...16 4. A Brief Detour: Vaccine Compensation Litigation...20 III. A Drop in the Bucket: Dispersing The Court s Workload...24 A. Impact of Docket Dispersion...26 B. By Definition: De Minimis...35 C. A Second Detour: Article I Versus III: Of Sound and Fury......39 IV. The Biggest Slice of Pie: Public Contracts Jurisdiction...43 A. Contract Disputes and Award Controversies: The Empirical Case...47 B. Election of Forum: Choice To What End?...52 1. Disputes: COFC Alternatives...53 2. Protests: COFC Alternatives...65 V. Conclusion...68 * Associate Professor, George Washington University Law School. I gratefully acknowledge the generous support of the Seymour Herman Faculty Research Fund in Government Procurement Law. I also thank Daniel I. Gordon, Richard C. Johnson, Peter H. Meyers, John S. Pachter, Heidi M. Schooner, Jerry Stouck, and Peter P. Swire for their thoughts and helpful comments and Nazar Altun, Erin Fishman, and Joshua Whitaker, all students at the George Washington University Law School, for their diligent research assistance.

I. Introduction THE FUTURE: SCRUTINIZING THE EMPIRICAL CASE FOR THE COURT OF FEDERAL CLAIMS Steven L. Schooner Twenty years after the Federal Courts Improvement Act (FCIA), 1 this judicial conference presents an excellent opportunity to reflect upon the unique role of the United States Court of Federal Claims (COFC). 2 I congratulate the Court on this conference and I applaud it for sparking consideration of a host of intriguing, and at times, perplexing, issues. I also thank them for their invitation to participate in this conference. Fortunately, this conference benefits from many thoughtful experts addressing varied aspects of the Court s past, present, and future. In other panels, an impressive and knowledgeable cadre of jurists, academics, and practitioners are well positioned to articulate numerous legislative solutions for specific problems that the Court confronts. This permits me to ask the ultimate question with regard to the Court, without attempting to resolve any of the systemic jurisdictional flaws that frustrate the Court s judges, litigants, and observers. 3 Thus, this paper queries whether the Court of Federal Claims experiment succeeded. It also considers the logical corollaries: whether the experiment merits continuation in perpetuity and, if not, what alternatives should be considered. I willingly concede that the Court of Federal Claims was never intended as an experiment. Conversely, many of the ills both major and minor that bedevil the Court 1 Pub. L. No. 97-164, 96 Stat. 25 (April 2, 1982). 2 On October 28, 1992, the Federal Court Administration Act of 1992, Pub. L. No. 102-572, 106 Stat. 4506 (1992), changed the Court s name from the United States Claims Court to the United States Court of Federal Claims. For the purposes of consistency, in this paper I make no distinction between the post-court of Claims trial courts. Although the Claims Court name periodically appears in quotations and citations, I use the name Court of Federal Claims to capture the twenty-year post-fcia period, rather than simply the post-1992 era. 3 For example, it may be that this article may, for some, render moot the need for Professor Greg Sisk s artful effort to restore a bright-line between retrospective monetary relief and prospective equitable relief[.] Gregory C. Sisk, The Tapestry Unravels: Statutory Waivers of Sovereign Immunity and Money Claims Against the United States, _71 GEO. WASH. L. REV. (forthcoming 2003). See also David A. Webster, Choice of Forum in Claims Litigation: A Written Response to Two Proposals Presented to Clarify the Tucker Act s Jurisdiction of the Claims Court, 37 FED. BAR NEWS & J. 534 (Nov. 1990); Gregory C. Sisk, Two Proposals Presented to Clarify the Tucker Act s Jurisdiction of the Claims Court, 37 FED. BAR NEWS & J. 47 (Jan. 1990).

derive from the Court s creation almost by accident. It is not uncommon to read that the Court was a mere afterthought in the process that led to the creation of the United States Court of Appeals for the Federal Circuit, which most commentators describe as the primary achievement of the FCIA. It would be difficult to find in the legislative history of [the FCIA] any genuine support for the idea that Congress acted as it did because of the nature of the cases involved or because of some special legislative needs connected with the work of the Claims Court. 4 The absence of an extensively debated, well-conceived, and carefully wrought plan at the point of this Court s creation eases my task. I need not demonstrate flaws in an existing vision. For this reason, I intend to avoid nibbling around the edges in an attempt to modify the Court s mandate. 5 I agree with the sentiment that COFC operates within the constraint of unprincipled jurisdiction. 6 Where I part company with Gregory 4 Joan E. Baker, Is The United States Claims Court Constitutional?, 32 CLE. ST. L. REV. 55, 96-97 (1983-84). See, also, Pauline Newman, The Federal Circuit: Judicial Stability or Judicial Activism?, 42 AM. U. L.REV. 683, 684 (1993), articulating a two-fold purpose for the Federal Circuit s creation: (1) a growing interest... in the theory of a national court at the appellate level and (2) forceful concern of the nation s technological leadership about the effect on industrial innovation of judge-made patent law[.] Judge Newman suggests that [b]oth these aspects were premised on the court s patent jurisdiction[.] Id. See also Harold C. Petrowitz, Federal Court Reform: The Federal Courts Improvement Act of 1982 and Beyond, 32 AM. U. L. REV. 543, 558 (1983) ( The amalgamation of the upper division of the Court of Claims with the Court of Customs and Patent Appeals necessitated restructuring the lower, or trial, division of the Court of Claims. ). 5 At the judicial conference, Michael F. Noone, Jr. artfully utilized the movie Encino Man (Buena Vista 1992) to distill the difference between my approach and that suggested by Marcia G. Madsen & Gregory A. Smith, The Court of Federal Claims in the 21 st Century: Specific Proposals for Legislative Changes, _71 GEO. WASH. L. REV. (forthcoming 2003). Do you remember this terrible film about the prehistoric man that is found in the San Fernando Valley?... [I]n a way, that is the Tucker Act... Steve Schooner wants to euthanize Encino man. Marcia [Madsen] and Greg Smith want to give him a shave, a haircut, dress him in an Armani suit, and bring him into the 21st century... If this type of analogy works for you, see Heidi M. Schooner, Popular Images of Bankers Reflected in Regulation, 5 GREEN BAG 2d 27 (2001) (reflecting upon the impact of, inter alia, It s a Wonderful Life, Mary Poppins, and the Shawshank Redemption, on contemporary bank legislation). 6 Eric Bruggink, A Modest Proposal, 28 PUBLIC CONTRACT LAW JOURNAL 529, 535-536 (1999), explaining that the confusing state of the fora and remedies matters: Draft page 2, Geo. Wash. L. Rev. Vol. 70 (continued...)

Sisk and others, however, is that I sense that the jury remains out as to the efficacy of proposing solutions for the practical difficulties with the way the court s jurisdiction and powers have evolved[.] 7 Instead, given twenty years of experience, I conclude that at least two other questions precede this discussion: what service does the Court ultimately perform and how well situated is it to accomplish its mission? In asking these questions, I do not mean to assert that the Court has failed when measured against a particular metric. Rather, the more precise issue is determining what function the COFC performs that could not be performed equally well elsewhere. This leads me to the ultimate, rather simple, if not stark, question. Is the Court necessary at all? 8 6 (...continued) not just because it violates a sense of order. First a scheme which grows up by topsy will probably leave overlaps, ambiguities, and inefficiencies. This system does all three. The overlaps are obvious.... The ambiguities are equally apparent. Why force a litigant to guess correctly whether his claim is in tort or in taking; whether what it is seeking are money damages or specific relief payable in cash; or whether it is an APA administrative review or a breach of contract or a takings claim? As for inefficiencies, why should title to property be tried in one court and damages for taking that property in another? Why have one court decide the legality of administrative action and another whether the same action constituted a taking? 7 Bruggink, supra note 6 at 540. 8 Professor Fallon made this point somewhat more artfully: [T]he Claims Court is an anomaly in the federal jurisdictional scheme: a somewhat generalist article I court. We have article I courts with specialized subject matter expertise. We have article III courts with proudly generalist tradition. But we have no article I courts, with the partial exception of the Claims Court, that are not justified by the asserted benefits of specialization. An anomaly of this kind may do no particular harm but it is hard to see how it could do much particular good either. Richard H. Fallon, Jr. Claims Court at the Crossroads, 40 CATH. U. L. REV. 517, 532 (1991). Draft page 3, Geo. Wash. L. Rev. Vol. 70

No doubt, raising this issue casts me as the conference lightening rod. 9 At the same time, I take comfort in knowing that most of the COFC s bench will dismiss my suggestions out of hand or deem them sufficiently non-threatening because they are so unlikely to generate Congressional or Executive interest. More importantly, I am confident that placing this issue on the table will prove a useful opportunity for proponents of the COFC to marshal and disseminate a compelling defense of the Court and, more broadly, the FCIA. 10 Given a blank slate something unavailable twenty years ago and, realistically, no more available today Congress could create a more organized, satisfactory, and efficient system for resolving money claims against the government without employing the Court of Federal Claims (as we know it today). Accordingly, it seems prudent to discuss potential reasons for simply eliminating the court and dispersing its current workload. 11 This paper poses three general reasons for questioning the efficacy of the Court s current mandate. 9 Yet there is relevant precedent for this type of examination. At the 1955 Court of Claims Centennial Banquet, hosted by the George Washington Law Association, the principal speaker explained. This is one centennial celebration... that calls for no eulogy.... This anniversary calls principally... for an assessment of the position which the court has made for itself in our Government. Mere age should not evoke tribute... because accomplishment and fulfillment of assigned tasks are the true marks of greatness. Newell Ellison, The United States Court of Claims: Keeper of the Nation s Conscience for One Hundred Years, Remarks at the Centennial Banquet of the United States Court of Claims, 132 Ct. Cl. 1, 2 (1955). 10 See, e.g., Loren A. Smith, Why A Court of Federal Claims?, 71 GEO. WASH. L. REV., (page 1 in draft) (forthcoming 2003): [The court] plays an important role in the American structure of accountability as well as the protection of individual rights. While it has been called the conscience of the federal government it is more prosaically the clearing house where the government must settle up with those it has legally wronged. See also, Richard Seamon, The Provenance of the Federal Courts Improvement Act of 1982, _71 GEO. WASH. L. REV. (forthcoming 2003). 11 I embrace and adopt Judge Plager s advice for reducing resistance, at least within the court, to any such proposal. Should Congress abolish the COFC, its current judges could be converted to Article III status and transferred to the federal district court of their choice. S. Jay Plager, conference remarks Trans. at 125. Draft page 4, Geo. Wash. L. Rev. Vol. 70

First, the Court is not truly a specialized court. While the term specialty court has no legal definition, [p]resumably this is a court that handles one branch of law with a limited class of cases and a well defined subject matter. 12 Its current hodge-podge of jurisdiction and the Court s disinclination to enforce sub-specialization demonstrates that courts of general jurisdiction are fully capable of resolving the issues that animate the court s caseload. In the alternative, if a legislator or a litigant preferred having certain types of matters resolved by a specialty court, the COFC is not that forum. Second, the Court s docket is relatively small, if not tiny, when compared to the cumulative workload of our massive federal judiciary and the existing administrative fora. Because such a large number of fora logically could absorb the Court s workload, dispersal of the Court s docket would not unduly burden any receiving fora. Third, the Court s contribution as an alternative, rather than a primary destination, diminishes its stature and importance. To the extent that the lion s share of the Court s jurisdiction is either explicitly or de facto concurrent, the benefits of a forum election are, for the most part, illusory. 13 Thus, absent a radical restructuring of the Court s mandate, an empirical case can be made that eliminating the forum would enhance efficiency and consistency, 12 S. Jay Plager, The United States Courts of Appeals, the Federal Circuit, and the Non-Regional Subject Matter Concept: Reflections on the Search for a Model, 39 AM. U. L. REV. 853, 858 (1990). As this article demonstrates, such a definition fails to describe the COFC. Similarly, Judge Plager approvingly describes Professor Daniel Meador s finding that the Federal Circuit, because of the wide array of case types and legal issues it addresses, is not a specialized court in any meaningful sense of the word. Id. at 864, citing Daniel J. Meador, A Challenge to Judicial Architecture: Modifying the Regional Design of the U.S. Courts of Appeals, 56 U. CHI. L. REV. 603, 612 (1989). See also Daniel J. Meador, An Appellate Court Dilemma and a Solution Through Subject Matter Organization, 16 U. MICH. J.L. REF. 471 (1983). Although it is beyond the scope of this article, when contrasted with appellate courts, a stronger case can be made for the need for regional trial bodies. The practical differences between litigating trials (involving witnesses and the marshaling of evidence) and handling appeals (involving the submission of briefs and limited records and limited appearance of counsel for oral argument) suggest that appellate work is uniquely well suited to potentially long-distance participation. 13 I hope to avoid the debate as to whether to use the term forum shopping which is described as negative, if not pejorative or election of forum, which is deemed more neutral. See, e.g., James P. Holden, The Federal Courts Study Committee Has Not Made the Case for Its Proposed Overhaul of the Tax Litigation Process, 40 CATH. U. L. REV. 639, 641 (1991), responding to Ginsberg, infra at note 203. See, e.g., Russel J. Weintraub, Introduction to Symposium on International Forum Shopping, 37 TEX. INT L L. J. 463 (2002), articulating that: forum shopping is not an activity that should be associated with questionable ethics or doubtful legality. It is part of a lawyer's job to bring suit in the forum that is best for the client s interests. Id. Draft page 5, Geo. Wash. L. Rev. Vol. 70

and likely also reduce confusion in law and practice. 14 Ultimately, this paper raises an empirical rather than a philosophical or even legal question. 15 I did not embark upon this enterprise anticipating that I would rely so heavily upon statistical data to make this case. Nonetheless, the exercise in number crunching was time well spent. Most importantly, the quantitative story that unfolds below supports my larger theoretical argument. The COFC has evolved into a somewhat confusing jurisdictional catch-all, rather than a fora that serves a needed purpose. The data to my way of thinking also silences those who object to the court s portrayal primarily as a contract court. The Court of Federal Claims, first and foremost, resolves matters related to federal government contracts. Yet even in that sphere, its role is marginal, rather than dominant. While the COFC performs many other functions and I do no intend to diminish these activities the picture painted of this activity is blurry and chaotic. Finally, but by no means least importantly, the data presented herein permits me to disparage the Court s mandate without criticizing its fine jurists. II. Neither Fish Nor Fowl: A Specialty Court? For many years, we have debated whether this court is or is not a specialty court. Objectively, if we use the terms specialized or specialty in a comparative or relative, rather than an absolute, sense, the COFC is a specialty court. In other words, the COFC is more specialized than the Federal District Courts. Yet the Court s jurisdiction implicates 14 In this, I take comfort in the acknowledgment that: A final problem that this court has struggled with, to perhaps a greater degree historically than most other courts, is the question of systematic rationality and uniformity. The federal tax, employment, and procurement systems are unified systems. The interpretation of a contract dispute, a tax statute, or an employment regulation may have profound effects on the ability of the government to operate. It may effect millions of other contractors, taxpayers or employees. Chief Judge Loren A. Smith, Foreward, 40 CATH. U. L. REV. 509, 511-12 (1991). 15 Let me be clear that I also favor the Court s elimination, or at least a radical restructuring, on more theoretical grounds. Conversely, I would be contributing less to the debate by rehashing points already made. See, generally, Fallon, Claims Court, supra note 8 at 518 (asserting that there should be complete and effective relief for all government wrongs as a matter of right, not grace, and that the preferred forums are the federal district courts. ). Draft page 6, Geo. Wash. L. Rev. Vol. 70

various specialities. 16 The court s docket is far more diverse than, for example, the United States Tax Court, 17 the United States Court of International Trade, 18 the United 16 In other words, the COFC is not a single-issue forum. Not all article I courts are single issue fora, however. The United States Claims Court... has a broad jurisdiction [which] encompasses tax, contract, government employee pay, constitutional takings... Randall R. Radar, Specialized Courts: The Legislative Response, 40 AM. U. L. REV. 1003, 1011 (1991) (suggesting that the Federal Circuit should not have been portrayed as a specialized court in legislative debates leading up to the FCIA). 17 The Tax Court is a Federal court of record established by Congress under Article I of the Constitution of the United States. The court provides a judicial forum to dispute tax deficiencies determined by the Commissioner of Internal Revenue prior to payment of the disputed amounts. The [court s] jurisdiction includes the authority to hear tax disputes concerning notices of deficiency, notices of transferee liability, certain types of declaratory judgment, readjustment and adjustment of partnership items, review of the failure to abate interest, administrative costs, worker classification, relief from joint and several liability on a joint return, and review of certain collection actions. Nineteen presidentially appointed judges, supplemented by senior judges and special trial judges, manage the court s workload. All the judges boast tax law expertise. See generally <http://www.ustaxcourt.gov/>. 18 The United States Court of International Trade, formerly the United States Customs Court, is a national court established under Article III, and is staffed by nine presidentially appointed judges. In addition to certain specified types of subject matter jurisdiction, the court has a residual grant of exclusive jurisdictional authority to decide any civil action against the United States, its officers, or its agencies arising out of any law pertaining to international trade... the court may grant any relief appropriate to the particular case before it, including, but not limited to, money judgments, writs of mandamus, and preliminary or permanent injunctions... The court also has exclusive subject matter jurisdiction of certain civil actions brought by the United States under the laws governing import transactions, as well as counterclaims, cross-claims, and third-party actions relating to actions pending in the court. See generally <http://www.uscit.gov/informational/about.htm>. Draft page 7, Geo. Wash. L. Rev. Vol. 70

States Court of Appeals for Veterans Claims, 19 or the United States Bankruptcy Courts. 20 Accordingly, former Chief Judge (and now Senior Judge) Loren Smith aptly asserted previously that the court is neither specialized nor general. 21 As a short-hand for this description, I prefer the term quasi-specialty court. If one argues that the court is not a speciality court, then there is no reason why the matters before the court could not be handled by the federal district courts. If one defends the court on the grounds that it is a specialty court, this paper empirically retorts that no single jurisdictional grant enjoys sufficient dominance to permit the expected level of expertise. Cumulatively, the court s jurisdiction is so diverse that the court cannot truly claim to be a specialized forum. 22 At this conference, however, Judge Smith s defense of the COFC evolves his 19 In 1988, Congress created this Article I Court originally named the United States Court of Veterans Appeals. Pub. L. No. 100-687; Pub. L. No. 105-368, 38 U.S.C. 72. The Court's seven presidentially appointed judges, like their counterparts on the COFC, serve 15-year terms. Most cases deal with entitlement to disability or survivor benefits, or the amount of those benefits, but a few deal with education benefits, life insurance, home loan foreclosure, or waiver of indebtedness. See, generally, <http://www.vetapp.gov/>, <http://www.vetapp.gov/aboutcourt/courtfacts.asp>. 20 Clearly, the bankruptcy courts are specialty courts. Conversely, to the extent that each of the nation s federal judicial districts handles bankruptcy matters, no single court exercises the same national jurisdiction analogous to the Court of Federal Claims, Court of International Trade, Tax Court, or Court of Appeals for Veterans Claims. Bankruptcy judges, appointed by the relevant court of appeals, serve 14-year terms. 21 Loren A. Smith, Alan E. Peterson Lecture: The Role of the Courts, What Would Sherlock Holmes Say?, 34 PROC. LAW. 1, 28 (Winter 1999). Similarly, Judge Bruggink concedes that the court is neither a specialized nor a general jurisdiction court. Like the CAFC, it is something in between. Eric G. Bruggink, Unfinished Business, _71 GEO. WASH. L. REV., at 8 (in draft) (forthcoming 2003). 22 While the term legislative court describes the COFC, it is not particularly helpful for the purposes of this analysis. For a thoughtful examination of the non-article III court phenomenon, see Richard B. Saphire & Michael E. Solimine, Shoring Up Article III: Legislative Court Doctrine in the Post-CFTC v. Schor Era, 68 B.U. L. REV. 85 (1988) (suggesting that the existence of meaningful article III court review legitimizes non-article III tribunals). See also, Martin H. Redish, Legislative Courts, Administrative Agencies, and the Northern Pipeline Decision, 1983 DUKE L.J. 197. Draft page 8, Geo. Wash. L. Rev. Vol. 70

prior assessment of the court s specialization. 23 He posit[s] that what the court should be doing is providing a single place where citizen and government can resolve disputes over ordinary day-to-day dealings efficiently, and on a level playing field. 24 Ultimately, he suggests that the court s true specialty is the relationship between the citizen and the sovereign and the government s operational need for national uniformity. 25 He explains that: The Court... has been criticized for both being specialized and not being specialized. While both points are based on a partial understanding of the court, both miss the real point. The court is specialist or expert in litigation between citizen and sovereign.... It is not a specialty of technique.... The court must continually... strike the correct balance between citizen fairness and efficient government. To one side lies the Scylla of arbitrary and unjust government exercises of power. To the other lies the Charybdis of irrational and unsupported claims tying up vital government functions and resources. Navigating litigation between these problems is the vital heart of the Court s... role. 26 While I find Judge Smith s assessment artful, I cannot agree. 27 The federal district courts 23 See, Smith, supra note 10. 24 See, Smith, supra note 10 at 2 (in draft). 25 See, Smith, supra note 10 at 2, 7 (in draft). 26 See, Smith, supra note 10 at 7 (in draft). 27 I am more amenable to Judge Bruggink s statement that: The unifying threads in its jurisdiction are that the subject matter always involves federal law and the United States is always the defendant. Bruggink, Unfinished Business, supra note 21 at 8 (in draft). Even here, however, we could split hairs. In plenty of COFC cases, the government is defendant in name only. For example, in contract default termination matters or contract cases arising from a government claim (or demand for money), the Contract Disputes Act requires the contractor to commence suit, hence labeling the government as the defendant. 41 U.S.C. 609(a)(1). Once the COFC takes jurisdiction, however, the COFC frequently requires the government to proceed as the putative plaintiff. Nonetheless, in that vein, I would be remiss if I failed to mention the reaction to this unifying theme that was expressed to me by a number of private practitioners (continued...) Draft page 9, Geo. Wash. L. Rev. Vol. 70

routinely resolve staggering numbers of suits involving citizens and the sovereign, both criminal and civil. Further, other specialty fora, such as the Tax Court and the Court of Appeals for Veterans Affairs, where the U.S. is party to all suits, must strike the same balance. Finally, as I discuss as length below, this assessment appears meaningless in the context of election of forum. 28 A. Dissecting The Court s Workload In an effort to reflect the diversity of the COFC s docket, the following discussion attempts to dissect and quantify the Court s workload. This task proves surprisingly difficult, given that the COFC s docket, as opposed to the federal district courts, is entirely civil. 29 As this paper demonstrates, any historical confusion in attempting to succinctly summarize the COFC s jurisdiction and workload is well founded. Even to one familiar with the Court and its practice, the COFC s docket appears surprisingly 27 (...continued) during and after this conference. While the government s role as defendant may be the Court s unifying theme, it may also be the Court s primary pathology. The COFC differs from the federal district courts, which routinely confront Justice Department attorneys as prosecutors, plaintiffs, and defendants. Some suggest that the COFC s co-dependent relationship with DOJ and the consistency of the government s defendant status breed a complacency or willingness to accommodate (if not please) the Court s only defendant. Litigators suggest that this accommodation primarily manifests itself from a procedural standpoint through a systemic slowing down the process. (Critics contrast the COFC, for example, with the nearby Rocket Docket in the Eastern District of Virginia). Private practitioners paint the court as unduly deferential to DOJ s assertion that it has limited resources to defend cases before the COFC. More specifically, individual COFC judges recognize that any time pressure applied in one of the Court s major matters (such as the Winstar cases, the spent nuclear fuel litigation, or, in its decade-long heyday, the A-12 litigation) promptly spawns a rash of motions from Justice Department attorneys seeking to enlarge time periods in unrelated matters pending on their colleagues dockets. Accordingly, collegiality and long-standing behavioral norms encourage individual judges to manage their cases at a pace ultimately dictated by DOJ. 28 For example, public contracts dominate the court s docket. See discussion accompanying notes 123 et al. In public contracts matters both protests and disputes the COFC shares concurrent jurisdiction with two specialized administrative fora. In both protests and disputes, the administrative forum shares the court s unique attribute of always seeing the government as a defendant. Thus, in making an election of forum, the specialty described by Judge Smith is neither unique nor instructive in making the election. 29 The primary distinctions used for quantifying the federal district courts workload are civil, criminal, and bankruptcy cases. See also note 76 infra. Draft page 10, Geo. Wash. L. Rev. Vol. 70

complex. 1. What Comes In? What Comes Out? Let s begin with the Court s description of its current workload. The Court s website explains that: Approximately one-quarter of the cases before the Court involve tax refund suits, an area in which the court exercises concurrent jurisdiction with United States district courts. The cases tend to involve complex factual and statutory construction issues in tax law. Another aspect of the court's jurisdiction involves government contracts. It was within the public contracts jurisdiction that the court was given new equitable authority in late 1996. Contract claims make up over a third of the court's workload. In recent years, the Court's Fifth Amendment takings jurisdiction has included many cases raising environmental and natural resource issues. This category has grown to about ten percent (10%) of the Court's docket. Another large category of cases involve civilian and military pay questions. In addition, the Court hears intellectual property, Indian tribe, and various statutory claims against the United States by individuals, domestic and foreign corporations, states and localities, Indian tribes and Nations, and foreign nationals and governments. 30 30 The History of the United States Court of Federal Claims, at <http://www.uscfc.uscourts.gov/uscfchistory.htm> (last modified June 4, 2001). Some may be interested to compare this recent language to Judge Miller s 1983 assessment: [T]he most common types of claims formerly brought in the Court of Claims [include]: tax refunds, contract adjustments and breaches, military and civilian pay, just compensation for taking of property, Medicare compensation, Indian claims, and transportation of persons and property.... [T]here is no reason to believe such cases will not continue to be the most common types administered by the new Claims Court. Philip R. Miller, The New United States Claims Court, 32 CLE. ST. L. REV. 7, 9 (1983-84) (omitting the text accompanying note 9, which anticipates a decrease in the amount (continued...) Draft page 11, Geo. Wash. L. Rev. Vol. 70

The following chart, Figure 1, attempts to roughly reflect the Court s own short-hand assessment of its docket. This abstract snapshot serves a single purpose: to focus you on the basic nature of the Court s business. Granted, it is unclear, from the Court s description, whether it is referring to pending matters, new filings, or dispositions. To the extent that the brief paragraph refers to the Court s docket, it seems logical to assume that the figures reflect the pending cases (rather than filings or dispositions). Other caveats are appropriate here. First, these adjectival descriptions cannot be taken as anything more than rough approximations. As the discussion and data below highlight, these percentages fluctuate from year to year. Second, the Other category to the extent that it accounts for something approaching twenty-five percent of the Court s docket cannot be disregarded. While the total percentage of Other matters appears significant, it represents quite a broad assortment of matters. Again, using the Court s description, it includes: intellectual property, Indian tribe, and various statutory claims against the United States by individuals, domestic and foreign corporation, states and localities, Indian tribes and Nations, and foreign nationals and governments. 31 In addition, the Court excluded vaccine litigation in this summary of its docket. 32 [Insert Figure 1: Percentage of Court s Docket (Pie Chart)] Yet, we need not be troubled with nuance at this point. My goal is merely to demonstrate graphically the following points, as represented by the Court. (1) The largest portion, more than a third, of the Court s docket involves public contracts matters. (2) The second largest portion of the Court s docket, approximately one quarter, involves tax matters. (3) Only two other types of issues account for any significant portion of the Court s docket: (i) Fifth Amendment takings and (ii) civilian and military pay matters. (4) Nearly a quarter of the Court s docket is a hodge-podge of claims. (5) Vaccine matters, which are primarily handled by special masters, 33 are not perceived as part of the Court s core mandate. 30 (...continued) of civilian pay cases to the extent that Merit Systems Protection Board appeals would proceed directly to the Court of Appeals for the Federal Circuit). 31 Id. 32 The Court handles Vaccine Compensation Cases pursuant to 42 U.S.C. 300AA-1 et seq. These cases receive particular attention infra, text accompanying notes 21 et seq. 33 Rules of the United States Court of Federal Claims (RCFC) Appendix B, Part II(b) ( The special master shall be responsible for conducting all proceedings... in order to prepare a decision.... ) The RCFC, revised as of May 1, 2002, are available at <http://www.uscfc.uscourts.gov/rulesupdate%2051702/rule6-18-02.pdf>. Draft page 12, Geo. Wash. L. Rev. Vol. 70

Figure 1 Percentage of Court's Docket Public Contracts Tax Refund Other Fifth Amendment Takings Civilian & Military Pay

As Figure 1 demonstrates, it is one thing to attempt to briefly describe an adjudicatory body s workload; it is another to paint a succinct, yet meaningful picture. In the past, I have struggled to quantify the volume of government-contract related litigation and explain related trends. 34 I have also witnessed efforts to quantify disappointed offeror litigation in the United States District Courts, also resulting in unsatisfying results. 35 One of the most impressive efforts of this genre is Professor Marc Galanter s recent effort to summarize how much contract litigation there is, who brings it against whom, how the parties fare, how this has changed over time, and so forth. 36 For our purposes, it is interesting that Galanter s work almost studiously avoids federal government contracts his work focuses primarily upon federal district courts 37 and state courts, with a particular focus on the nation s 75 largest counties. In any event, Galanter primarily measured the quantity of contract litigation in terms of cases filed. This makes sense. In quantifying workload, a number of measures seem relevant 34 I sense that this effort has achieved somewhat mixed success. Steven L. Schooner, Fear of Oversight: The Fundamental Failure of Businesslike Government, 50 AMERICAN UNIVERSITY LAW REVIEW 627, 631-671 (2001); Steven L. Schooner, Pondering The Decline of Federal Government Contract Litigation in the United States, 8 PUBLIC PROCUREMENT LAW REVIEW 242 (1999); Steven L. Schooner & Keith D. Coleman, The CDA At Twenty: A Brief Assessment of BCA Activity, 34 PROCUREMENT LAWYER 10 (Number 4, Summer 1999). 35 General Accounting Office, Bid Protests: Characteristics of Cases Filed in Federal Courts, GGD/OGC-00-72 (April 17, 2000), available at <http://www.gao.gov/archive/2000/g800072.pdf>; 1999 American Bar Association, Comments Regarding U.S. General Accounting Office Study of Concurrent Protest Jurisdiction (December 29, 1999), available at <http://www.contracts.ogc.doc.gov/cld/papers/scanwell.pdf>; See also, Steven L. Schooner, Feature Comment Watching The Sunset: Anticipating GAO's Study Of Concurrent Bid Protest Jurisdiction In The COFC And The District Courts, 42 THE GOVERNMENT CONTRACTOR 108 (March 22, 2000), available at <http://www.law.gwu.edu/facweb/sschooner/gao.pdf>. 36 Marc Galanter, Contract in Court; Or Almost Everything You May Or May Not Want To Know About Contract Litigation, 2001 WISCONSIN L. REV. 577 (2001). 37 Specifically, to the extent that both Galanter and I have benefitted from data generated by the Administrative Office of the United States Courts, Galanter relies primarily upon C-series tables, which collect data submitted by the Federal District Courts. See, e.g., Galanter, Contract in Court, supra 2001 WISCONSIN L. REV. at 584-5, 598, 608-9, 627. By contrast, the Court of Federal Claims activity is summarized separately in the G-series tables, referred to throughout this paper. At times, Galanter also uses the B-series tables, which report federal appellate statistics. Id. Draft page 13, Geo. Wash. L. Rev. Vol. 70

here: volume of new case filings; volume of resolved cases; pending cases; and actual workload statistics of the Court s personnel. Litigants and potential litigants, of course, are far more interested in metrics such as the time period between filing, trial, and case closure, or the amount of time in which cases sit pending in ready to write status. 38 For our purposes, however, these concerns, and other issues related to productivity or efficiency, need not distract us. I also tried to avoid analyzing pending workload statistics. 39 I am unaware of any public access to actual workload data at the court either on an individual judge or on a court-wide basis. 40 Accordingly, the discussion below focuses primarily upon filings and dispositions. I place greater credence on the data discussing input, rather than output, although I find both instructive. The one variable that adjudicative fora have the least control over is the number of matters docketed; so this measure may prove the most reliable indicia of litigation activity. 38 Judith Resnik suggested to me that it would be informative to attempt to quantify the amount of trial activity at the COFC and contrast that with the federal district courts. The federal district courts annually report a host of information relating to trial activity including: the total number of trials, number of civil trials, number of criminal trials, and the number of jury trials (Table C-7); the length of trials both civil and criminal in six increments (ranging from 1 day to 20 days or more ) (Table C- 8); and a list of all terminated trials that required 20 days or more of trial, e.g., the list detailed 33 Civil and 66 Criminal trials nation-wide for the 12 months ending September 30, 2001 (Table C-9). See <http://www.uscourts.gov/judbus2001/contents.html>. I agree that the COFC should report this data, although it currently does not. Following up on that suggestion, however, at least one COFC judge expressed hesitation, noting that the data could lead to misinterpretation. Specifically, given the complexity and length of many of the COFC s trials, the number of trials per judge might appear disproportionately low, rather than reflecting what the COFC perceives as an inordinately high trial burden. See also the discussion in note 86 infra. My reaction is that the data should speak for itself. 39 Many fora view their active docket reflected by the number of matters pending as the primary indicia of workload. I reject reliance solely upon this measure because it heavily depends upon the pre-existing backlog of matters, the number of judges (and/or judge vacancies), resources (e.g., the number and quality of staff attorneys, law clerks, and support staff), the size and complexity of the disputes, and the productivity of individual judges, etc. Moreover, one need not be too cynical to recognize that case management, assignment, and prioritization can dramatically impact a fora s pending docket. For example, judges can choose to focus their energy on the largest, most complex matters (which reduces dispositions and increases the pending docket) or emphasize prompt resolution of the least challenging, if not easiest disputes (hence maximizing dispositions and accordingly reducing the pending docket). 40 For a discussion on the difficulty in attempting such an effort based solely upon published opinions, see Schooner & Coleman, supra note 34 at 13-16. Draft page 14, Geo. Wash. L. Rev. Vol. 70

Nonetheless, I thought it might be productive to attempt to quantify both incoming workload (in the form of filings) and output (in the form of published decisions). 2. What Comes In: Case Filings The best data available for quantifying the volume of the Court s cases may be new filings. Figure 2 depicts new case filings in the COFC for fiscal years 1997-2001, as reported to the Administrative Office of the United States Courts. 41 In addition, the righthand column depicts the five-year average of filings by jurisdictional topic. [Insert Figure 2: COFC Filings: Type of Matter] Again, some caveats are required. Rather than work with the fourteen categories or types of cases reported, I have reduced the number of categories to six. I combined public contract disputes and protests (reported as declaratory judgment (contracts) matters). 42 Given their conceptual similarity, I also combined military pay and civilian pay issues. Under the label patent, Native American, etc., I combined in addition to patent filings and Native American claims a number of individual categories listed in the annual report that, individually and collectively, account for a statistically insignificant portion of the Court s docket. (I address these below.) 43 Finally, the category miscellaneous is a convention used both by the COFC and the Administrative Office in their annual reports, and I offer no unique insight into what those matters entail. The chart is consistent with the Court s suggestion, above, that public contracts matters dominate the Court s docket. In a striking departure from the Court s description, however, vaccine litigation accounts for the second largest portion of the Court s docket. 44 Not surprisingly, tax matters represent the next largest portion. Three categories (1) civilian and military pay; (2) takings; and (3) miscellaneous account for similar, yet lesser, amounts of the remaining influx of cases. Finally, as suggested above, a number of matters, including patents and Native American claims, represent a 41 See U.S. Courts, The Federal Judiciary, Director s Annual Reports, Judicial Business of the United States Courts, Supplemental Table G2-A, U.S. Court of Federal Claims Cases Filed, Terminated, and Pending for the 12-Month Period Ending September 30, 1997 (and 1998, 1999, 2000, 2001), available at <http://www.uscourts.gov/fcmstat/index.html>. 42 The reason for this convention should become clear below, when I discuss the Court s public contracts docket as length. See text accompanying notes? et seq. 43 See infra, text accompanying notes 93 et seq. et seq. 44 Vaccine litigation is addressed at length, infra, at text accompanying notes 53 Draft page 15, Geo. Wash. L. Rev. Vol. 70

Figure 2 CFC Filings: Type of Matter 450 400 350 300 250 200 150 100 50 0 1997 1998 1999 2000 2001 Average 1997-2001 Public Contracts - Disputes & Protests Vaccine Compensation Tax Civilian & Military Pay Miscellaneous Takings Patent, Native American, Etc.

negligible portion of the incoming workload. 3. What Comes Out: Published Opinions While quantifying the volume of filings is instructive, it paints an incomplete picture. We should assume that some incoming cases are less complex, distracting, or time consuming than others. Accordingly, I concluded that examining the volume of the Court s published opinions might prove useful, because this published work represents the Court s most tangible and lasting output. 45 I thus attempted to determine the volume of Court s published opinions, by jurisdictional mandate, since the FCIA. Figure 3 provides a snapshot of this effort. [Insert Figure 3: Published Opinions 1982-2001] Despite the chaotic image initially presented, a number of things become clear when viewing this data at this high level. The Court s jurisdiction is quite broad. Nonetheless, as expected, contract disputes (the largest chunk of matters before the Court) account for the largest volume of the Court s published opinions. Tax matters represent the second largest category. Experienced COFC practitioners will not be surprised by one category that received no special mention in the Court s reported data on filings, dispositions, and pending matters matters dismissed for lack of jurisdiction. Since the FCIA, opinions dismissing cases where the Court lacks jurisdiction are one of the largest categories of published decisions at the COFC. 46 I return to this data set below. Before attempting to drill down further into these 45 In addition, I wanted to provide more than another example of a low cost bricolage strategy of trying to capture, refine, and juxtapose scattered data already in the public domain, extracting a focused account from bodies of information gathered for other purposes. See Galanter, supra note 36. Moreover, to the extent that, since its inception, this piece has drifted progressively into the realm of the empirical, I figured the more data generated, the better. 46 No doubt, the Department of Justice will view this data with some sense of satisfaction, while the private bar will note it with chagrin. For readers unfamiliar with the intricacies of COFC jurisdiction and how its jurisdictional mandate generated so much jurisdictional litigation, ample reading is available. See, generally, David M. Cohen, Claims for Money in the Claims Court, 40 CATH. U. L. REV. 533, 534 (1991) (concluding that: although courts have not clearly stated how to determine if a remedy is adequate, the availability of an alternative remedy is a major factor in determining Claims Court jurisdiction over statutory monetary claims. ). Draft page 16, Geo. Wash. L. Rev. Vol. 70

Figure 3 Published Opinions 1982-2001 2000 1998 1996 1994 1992 1990 1988 1986 1984 1982 0 50 100 150 200 250 300 350 400 Contract Dispute Vaccine Compensation Tax Protests (Contract) Military Pay Civilian Pay Takings Lack of Jurisdicton Other Other Contract EAJA Native American Claims Patent Informants Congressional Reference

statistics, however, I should note a minor disconnect that runs through the following discussion. To the extent that this paper presents data related to COFC filings (or incoming work), that data is reported by fiscal year (ending September 30). To the extent that I present data regarding published opinions, that data is presented by calendar year (ending December 31). Although purists may find this inaccuracy appalling, this distinction proves immaterial here. Before going further, I have attempted to depict the correlation between what comes into the Court each year and what goes out. In other words, Figure 4 depicts three available measures of the Court s workload: the volume of filings; the number of dispositions; and the volume of published opinions. [Figure 4: Inputs and Outputs] I do not suggest that this data is uniquely meaningful, but I find it interesting nonetheless. Briefly, for the five year period 1997-2001, the COFC: (1) docketed an average of 933 new cases each year; (2) disposed of a greater number, approximately 1,028, each year; and (3) published approximately 216 opinions a year. Thus, it appears that during this period, COFC judges published something in the neighborhood of one opinion for every five matters of which they disposed. 47 For the remaining eighty percent, publicly available data is inadequate to correlate the Court s efforts with regard to the lion s share of matters that are voluntarily dismissed, settled, or otherwise resolved without published opinion. 48 Having introduced the high-level data summarizing what comes in (filings) and what goes out (published opinions), it may be instructive to further attempt to correlate the two. Figure 5 thus compares the Court s filings with its published opinions in the five largest jurisdictional categories. Once again, this data set covers the 1997-2001 time frame (and, again, it mixes fiscal years with calendar years), presenting the total volumes as averages. [Figure 5: Comparing Percentage of Filings to Published Opinions] Not surprisingly, over the five-year period, public contracts matters accounted for 47 To the extent that I discuss the COFC s published opinions at greater length below, I resist the inclination to discuss the volume of published opinions in terms of the productivity of individual judges and the court. Again, my intent remains to use available data as a proxy for assessing what issues primarily consume the COFC s energies. 48 Nor do I anticipate or propose a manual review of the Court s file room and archives to generate this data. Draft page 17, Geo. Wash. L. Rev. Vol. 70