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Howard Bashman has done a significant service by calling attention to the U.S. Court of Appeals for the Federal Circuit, an important but little-understood court. At the same time, his April 17 commentary, “Let the Fed Circuit Do It?” (Page 70), does a serious disservice by giving joking consideration to the management of the country’s appellate business. While sending all immigration appeals to the Federal Circuit may be an ill-conceived plan, Bashman should not so lightly dismiss the value of bringing all appeals in certain other categories of federal cases before one court. A CENTRALIZING INFLUENCE The Federal Circuit’s unique position in the judicial hierarchy makes it a valuable resource in effectively organizing appellate business. Congress created the court in 1982 by combining the U.S. Court of Customs and Patent Appeals and the U.S. Court of Claims. In addition to absorbing the jurisdiction of those two tribunals, the Federal Circuit was given important new authority over certain cases nationwide. Thus for the first and only time since the creation of the intermediate appellate tier of federal courts in 1891, there was established an intermediate court whose jurisdiction was not limited by geography. A major motivation in the creation of the Federal Circuit was to centralize patent appeals from all district courts, eliminating intercircuit conflicts and heightening nationwide uniformity in patent law. And today the court is best known for those cases — although from the beginning, it has heard significant numbers of cases from other courts and administrative agencies. Another major objective in the creation of the Federal Circuit was to establish a nonregional appellate court to which Congress in the future could assign other categories of cases where there was a special need for nationwide uniformity. Congress has done this several times since 1982, by giving the court jurisdiction over decisions from the U.S. Court of Appeals for Veterans Claims and a miscellaneous assortment of other cases. Bashman’s lighthearted commentary lost an opportunity to make a serious contribution to this ongoing consideration of how best to use the Federal Circuit. Instead, he portrayed the court as simply a dumping ground. The fact is that there are some fields of federal law where the need for national uniformity is greater than others. Put another way, there are fields in which inconsistent judicial interpretations — the law meaning one thing in one part of the country and another in another part of the country — are especially unjust. It is in those fields, and only those fields, that centralizing appellate authority should be considered. THE MONEY SHOT The most attractive and pressing case for nationwide uniformity is in tax law. Centralizing tax appeals was first suggested in 1944 by Erwin Griswold, then dean of Harvard Law School. The idea has been debated and advocated ever since, but so far without success. In the original proposal to create the Federal Circuit, drafted in 1978 by the Justice Department’s Office for Improvements in the Administration of Justice, tax appeals — i.e., appeals from the U.S. Tax Court and from all district courts in civil tax cases — were included in the new court’s jurisdiction. For reasons that never seemed clear or persuasive to me — and I headed that office at the time — objections were voiced by the Internal Revenue Service, the Justice Department’s Tax Division, and some lawyers (although the proposal was supported by other leading tax lawyers). Whatever their merits, the objections were sufficiently strenuous to cause that provision to be dropped from the bill. But the idea still makes sense. The Federal Circuit already has significant tax jurisdiction in its review of decisions from the U.S. Court of Federal Claims. The need for uniformity is particularly acute in tax law, as it is especially egregious for a taxpayer in one region of the country to be liable for taxes for which a taxpayer in another region is not liable solely because of inconsistent decisions by different appellate courts. While not making a specific recommendation in its final report in 1998, the Commission on Structural Alternatives for the Federal Courts of Appeals, chaired by the late Justice Byron White, did identify tax appeals as a set of cases that could be usefully assigned to the Federal Circuit, in keeping with the overall nature and size of its docket. But tax appeals are just the most obvious example of additional jurisdiction that Congress could appropriately send to the Federal Circuit. Careful evaluation of the actual effects of regionally inconsistent interpretations of federal law on people’s lives and businesses might well identify additional areas of law. MORE COURTS? There is, of course, a practical limit to how much additional jurisdiction can be assigned to the Federal Circuit. The court currently has 12 judgeships, a number that could be increased. The 9th Circuit has 28 judgeships. But there is much debate over whether the latter number is too large for an appellate court sitting in randomly rotating panels, as that court does. The volume of immigration appeals (more than 12,000 annually) is such that it would not be feasible to transfer jurisdiction over all of them to the Federal Circuit — the one serious point made in Bashman’s article. On the other hand, assigning all tax appeals to the Federal Circuit would increase its docket by around 250 cases annually, an additional workload that the court could handle with perhaps one or two additional judges. If the volume of business in other categories with strong need for national uniformity is thought to exceed the capacity of the Federal Circuit, even with more judges, Congress should consider creating one or more additional appellate courts with nationwide jurisdiction. In designing these tribunals, it would be important to avoid creating a “specialized” court, that is, a court with narrow authority over only one or two fields of law. Specialized courts are thought to be undesirable because of the risks that the court’s case law will become separated from the overall body of law, the judges will develop tunnel vision and possibly arcane legal views, and the court might be “captured” by the interests over which it has jurisdiction. The Federal Circuit avoids these dangers because of its varied jurisdiction. Unfortunately, federal judicial business is low on the congressional list of priorities. There is no vocal, politically influential constituency clamoring for improvements. Nevertheless, Congress needs to give serious attention to how the federal appellate business can most effectively be organized among the courts. The Federal Circuit should be at the center of that attention. And this is no joking matter.
Daniel J. Meador is a professor emeritus at the University of Virginia School of Law. As an assistant attorney general from 1977 to 1979, Meador was head of the Justice Department’s Office for Improvements in the Administration of Justice, where the bill to create the Federal Circuit was drafted. From 1998 to 1999, he served as executive director of the Commission on Structural Alternatives for the Federal Courts of Appeals.

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