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The “youngest” of the federal appellate courts soon will be showing its age as two-thirds of its members qualify for retirement or senior status in the next two years, presenting a rare opportunity for the next president to shape that court. In a recent speech, Judge Kimberly Moore, the newest judge on the U.S. Court of Appeals for the Federal Circuit, noted the startling statistic that eight of her court’s 12 members either are eligible now or will become eligible for senior status within the next two years. “It is certainly significant,” said federal courts scholar Arthur D. Hellman of the University of Pittsburgh School of Law. Even if those eligible wanted to take senior status fairly soon, he said, the court probably would attempt to work out some sort of staggered system. “I think the court would recognize that so many vacancies would be tremendously harmful to the court, especially given the political situation today,” Hellman said. ‘RULE OF 80′ Federal Circuit appointments have not been as politicized as some appointments to other circuits, he said. “But the stakes now are very high, given the current controversy over patent reform legislation � a very high-stakes legislative issue.” Too many vacancies at one time could lead stakeholders to line up on whether nominees are pro- or anti-patent, he said. He added, “On the other hand, it does mean the president can satisfy multiple constituencies. That could actually diminish the level of controversy.” The Federal Circuit, established in 1982, was the last of the circuits to be created. Unique among the 13 circuit courts of appeals, the court has nationwide jurisdiction in a variety of subject areas, including government contracts, patents and veterans’ benefits. The “Rule of 80″ is the commonly used shorthand for the age and service requirement for a judge to assume senior status. Beginning at age 65, a judge may retire at his or her current salary or take senior status with the completion of 15 years of active service as an Article III judge (65+15=80). A sliding scale of increasing age and decreasing service results in eligibility for retirement compensation at age 70 with a minimum of 10 years of service. Four of the court’s judges hit the senior status marker some time ago but continue on active status: Chief Judge Paul Michel and judges H. Robert Mayer, Alan Lourie and Pauline Newman. Their ages range from 67 to 81, and their years of service from 18 to 23. Only three of the 12 judges are younger than 60. The possibility of significant vacancies provides an opportunity to appoint judges with strong, traditional appellate skills, said appellate litigator Mark Davies, counsel to the Washington, D.C., office of O’Melveny & Myers and author of the forthcoming book “Patent Appeals: Elements of Effective Advocacy Before the Federal Circuit” (Oxford University Press). “One strong message the Supreme Court seems to be sending is it wants the Federal Circuit to pay more attention to principles of standard appellate decision-making, such as attention to text and not being too rigid,” he said. The District of Columbia Circuit, he said, also has a very technical docket but a very low reversal rate in the Supreme Court. “It’s not because all of the judges have doctorates in the various disciplines that come before them; they employ the traditional judicial tools that the Supreme Court employs.” CHANCE FOR DIVERSITY Intellectual property litigator Harold C. Wegner, partner in the Washington, D.C., office of Foley & Lardner, sees potential vacancies as an opportunity to bring a more diverse membership to the court. “We’ve never had a district court judge elevated to the Federal Circuit,” he noted. “Give me a good district judge who knows what a trial is. I’d also love to have some trial lawyers.” The court may soon face another type of personnel change. The patent reform bill awaiting Senate floor action would eliminate the unique requirement that Federal Circuit judges live within 50 miles of Washington, D.C., thus potentially broadening the pool of those eligible and willing to serve on the court. This article originally appeared in theNational Law Journal , a publication of ALM. �

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