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Editor’s note: The U.S. Court of Appeals for the Federal Circuit is at the center of a revolution. At a time when intellectual property law is ascendant, it’s this court that hears patent cases. And in an era when policy-makers and judges are rethinking the role and power of government, it’s this court that reviews suits against the feds. The court’s 12 judges wield enormous financial power — presiding over disputes that often go directly to the bottom line of big business and the federal government. “Federal Circuitry” is a new monthly column about the court by Jonathan Ringel, a senior reporter in the Washington, D.C., bureau of American Lawyer Media. The Federal Circuit — based in the District of Columbia with a good view of the White House — is probably best known for its patent rulings. Indeed, the court was established in 1982 as the successor to the old U.S. Court of Customs and Patent Appeals. But the Federal Circuit also hears appeals of cases against the U.S. government from the Court of Federal Claims. In addition, the circuit takes up cases from the Court of International Trade, the Court of Veterans Appeals, the Merit Systems Protection Board, and agency boards of contract appeals. Last fiscal year, it decided a little more than 1,000 cases, including 312 from district courts (the vast majority of which are patent cases). “Federal Circuitry” will aim to animate the court’s inner life and procedures, profiling its judges and the lawyers who practice before it. The column will highlight noteworthy and important opinions as well as arguments on the court’s docket. Court’s in session. TIMOTHY DYK’S LONG HELLO After waiting more than two years to get confirmed, Timothy Dyk didn’t wait long to pay a visit to the Federal Circuit. On May 25, a day after the Senate voted 74-25 to make him the court’s 12th judge, the 63-year-old head of Jones, Day, Reavis & Pogue’s appellate practice stopped by 717 Madison Place to meet some of his soon-to-be colleagues. Chief Judge Robert Mayer says he had never before met Dyk and was therefore not able to assess Dyk’s state of mind the day after getting past a gantlet of conservative senators. “If it were me, I’d have been relieved,” says Mayer, whose 1987 confirmation took just five months. Mayer adds that Dyk has tentatively scheduled to take the oath of office privately some time this week, with a public investiture to occur later. Dyk, a former Wilmer, Cutler & Pickering partner, declined to be interviewed for this article. Former colleagues, co-counsel, and legal foes spoke for him. “He gives a very forceful argument in a very gentlemanly way,” says George Moscarino, a Jones, Day partner in Cleveland, who worked with Dyk on a Federal Circuit case in 1995. Dyk has argued four cases at the Federal Circuit and written or co-written briefs for litigants or amicus curiae in three other cases. He’s known more for his general appellate work, including nine arguments before the Supreme Court. Appellate lawyer Edward Bruce of Washington’s Covington & Burling has argued against Dyk in the Federal Circuit and watched him at the Supreme Court. “His manner is really quite subdued,” says Bruce. Patent lawyer Donald Dunner of D.C.’s Finnegan Henderson, Farabow, Garrett & Dunner says Dyk “has superb credentials.” Dunner notes that Dyk is not a member of the patent bar. That actually puts him in the majority on the Federal Circuit, where only four judges are former patent lawyers. Dyk’s extensive appellate experience will serve him well on the bench, says Dunner. “I think he’s going to be very good,” he says. To be sure, Dyk had to walk a long mile to get here. At a time of prolonged confirmation battles, Dyk’s was an odyssey. President Clinton first selected Dyk on April 1, 1998. On the face of it he looked unassailable, as a graduate of Harvard and its law school, a former clerk to three Supreme Court justices — Chief Justice Earl Warren and retired Justices Harold Burton and Stanley Reed — and a partner at two big firms with solid corporate law credentials. But the conservative Judicial Selection Monitoring Project soon launched a campaign against Dyk. The group, joined by Gary Bauer’s Family Research Council, objected to his First Amendment work for broadcasters’ challenging government indecency standards. The foes also questioned Dyk’s “overly expansive” view of press access freedoms and a statement he made referring to Roe v. Wade as having been decided by a “moderate” Supreme Court. Dyk took the unusual step of responding to the criticism personally in an August 1998 letter to Senate Judiciary Committee Chairman Orrin Hatch, R-Utah. Dyk wrote that the groups had mischaracterized his legal philosophy and his broadcasting clients’ views on the constitutionality of government decency standards. Dyk got past the Judiciary Committee, but was one of three Clinton appointees who were left on the Senate floor when Congress adjourned at the end of 1998. As he has done with other appointees beaten by the clock, Clinton renominated Dyk when Congress opened for business in 1999. Dyk’s second nomination languished until late last month, when Republicans and Democrats crafted a deal to vote on dozens of Clinton appointees in return for the Democrats allowing a vote on a controversial GOP pick for the Federal Elections Commission. Postscript: Keep an eye on whether Dyk tries to persuade his colleagues on the bench to allow cameras into the Federal Circuit. As a lawyer for CBS News and other media groups, Dyk routinely asked — and was just as routinely turned down — the Supreme Court to allow broadcast coverage of the ceremonial swearing-in of new justices. In 1988, he also arranged for cameras to videotape a brief mock oral argument before Chief Justice William Rehnquist, Justices Anthony Kennedy, and then-Justice Byron White. The experiment failed to persuade the camera-shy justices. Should Dyk try, he might have just as much trouble with his own court. The idea came up informally in a discussion of judges a few years ago, says Chief Judge Mayer, and a majority opposed allowing TV cameras in the court. Mayer himself says he too is not in favor of allowing cameras in his court, but when Dyk arrives, “I’ll be interested to talk to him about that.” HOW MANY IS TOO MANY? While most of the opposition to Dyk’s nomination centered on his potential to be an “activist” judge, one senator said he wouldn’t vote for Dyk because he didn’t think the Federal Circuit needed a 12th judge at all. Republican senators have used the argument in opposing Clinton nominees to the U.S. Court of Appeals for the D.C. Circuit. Now, it’s the Federal Circuit that is “the least-worked circuit in America,” according to Sen. Jeff Sessions, R-Ala. During the Senate floor debate over Dyk’s nomination, Sessions cited statistics that showed the Federal Circuit’s so-called termination rate — the number of cases closed in a year divided by the number of judges — was 141 per judge in 1998. The Federal Circuit’s numbers did not fare favorably with the termination rates of other circuits, which ranged from 312 in the 3rd Circuit to 820 to the 11th Circuit, according to Sessions. In a letter supporting Dyk’s nomination, the U.S. Chamber of Commerce said that the circuit needed Dyk and that a comparison between the caseload of the Federal Circuit, which does not handle criminal matters, and other circuits, “is a comparison of apples to oranges.” Mayer, the Federal Circuit’s chief judge, responds, “Congress established the judgeships for our court,” and it authorized the court to have 12 active judges. “I believe there’s plenty of work,” adds Mayer. PAYDAY Don’t think federal judges haven’t noticed big law firms’ skyrocketing salaries. Just ask Spencer Williams, a senior judge in the Northern District of California who’s leading all life-tenured judges in a suit against the U.S. government. In a case coming to the Federal Circuit on June 5, the judges say Congress has cheated them out of cost-of-living adjustments for four out of the last five years and violated the Constitution’s guarantee that federal judges’ compensation not be “diminished.” But Williams goes beyond the case’s Constitutional significance when arguing why judges’ pay must at least keep up with inflation. Speaking of his law clerks, Williams says, “They get $130,000 the day they walk out the door” and join a big law firm. District judges currently earn $141,300 a year, the same as members of Congress. The judges’ pay would increase about at least $15,000 if the Federal Circuit upholds last year’s ruling in favor of the judges by U.S. District Judge John Garrett Penn of the District of Columbia. Circuit judges earn $149,900 and would also get at least a $15,000 increase, plus thousands more in back pay, if they rule for their brethren. Supreme Court justices, whose pay starts at $173,600, likewise would benefit from a ruling in the judges’ favor. The conflict of interest isn’t lost on anyone, but both the government and the plaintiff-judges say the federal judges are qualified to rule on the matter. They cite the “rule of necessity,” a centuries-old common law principal that basically says if every judge has a conflict of interest, no judge has a conflict of interest. Chicago litigator Kevin Forde, who represented federal judges in a similar 1980 Supreme Court case, will argue for the judges again on June 5. Asking judges to grant themselves a pay raise “is awkward for a moment,” Forde says, but “the judges usually get over it.” In Forde’s earlier case, United States v. Will, the high court ruled unanimously that judges were entitled to two raises that had been repealed by Congress after they had gone into effect, but were not entitled to two other raises that were repealed before taking effect. The issue in this case looks more difficult, because a 1981 law the government relies on and a 1989 law the judges rely on appear to conflict. In an even more awkward position is Justice Department appellate counsel Douglas Letter, who has the job of asking the judges to rule against the pay raise. He declined to speak for this article, but his brief argues that Congress has no obligation to grant salary increases and that the 1981 law requires specific authorization by Congress for a judicial pay increase. The brief also calls arguments over whether judges should get pay increases irrelevant. SHOPPER’S PARADISE One of the most well-known business cases on the Federal Circuit’s docket could be argued as soon as August. Amazon.com v. Barnesandnoble.com, the battle of the online booksellers that captured the nation’s attention last Christmas season, has been fully briefed and is awaiting an argument date. At issue is a Seattle federal judge’s preliminary injunction that forced Barnesandnoble.com to add another mouse click to its “Express Lane” ordering feature so as not to violate Amazon’s patent for its one-click purchasing method. Last December, U.S. District Judge Marsha Pechman ruled that Amazon would likely win its patent infringement suit against Bn.com, as Barnesandnoble.com is called in the briefs. Accordingly, Pechman granted Amazon’s motion for an injunction against its Internet competitor. Bn.com has appealed, challenging everything from the validity of Amazon’s patent to Pechman’s method of counting mouse clicks. Lead counsel for Amazon.com is Lynn Pasahow of San Francisco’s McCutchen, Doyle, Brown & Enersen, joined by counsel from Seattle’s Perkins Coie. Lead counsel for Bn.com is Jonathan Marshall of New York’s Pennie & Edmonds, joined by New York’s Robinson Silverman Pearce Aronsohn & Berman. Jonathan Ringel, senior reporter in the American Lawyer Media Washington bureau, can be reached at [email protected] “Federal Circuitry” is published monthly. The next column will appear July 3.

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