I’m excited to announce that this week FedCircuitBlog will host its second online symposium. The symposium will be a Year in Review, reviewing the work of the Federal Circuit in 2020 in various areas of the court’s jurisdiction: appeals involving international trade, patents, money damages claims against the federal government, federal employment law, and veterans’ benefits. We will welcome guest blog posts from leading professors and practitioners in these subject matter areas. Here, however, I first provide a brief overview of the court’s activity this past year–a year markedly different as a result of the COVID-19 pandemic, but a year in which the court continued its work hearing appeals and deciding cases in the areas of its jurisdiction.
In 2020, the Federal Circuit selected for publication on its website 547 opinions, 144 Rule 36 summary affirmances, 85 orders, and 17 errata. Of the 547 opinions, the court designated 219 as precedential. Of the 85 orders, the court designated 19 as precedential. The following chart shows FedCircuitBlog’s coding of the 547 opinions based on subject matter:
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Interestingly, the Federal Circuit issued nearly as many patent law opinions (272) as all other subject matter area opinions combined (275). Those 272 patent law opinions reviewed 129 district courts opinions, 123 opinions by the U.S. Patent and Trademark Office, three opinions by the Court of Federal Claims, and two opinions by the International Trade Commission.
En Banc Opinions
In 2020, the court issued two en banc opinions, one addressing veterans law and the other addressing trade law.
In National Organization of Veterans Advocates, Inc. v. Secretary of Veterans Affairs, a case addressing veterans law, the en banc court unanimously held that it “has jurisdiction over NOVA’s challenge to the Knee Joint Stability Rule . . . [and] jurisdiction to review the Knee Replacement Rule.” In reaching this holding, the court invalidated one of its own rules and also overruled three of its cases. The court almost simultaneously issued a Notice of Emergency Amendment to Federal Circuit Rule 15(f).
In Sunpreme Inc. v. United States, the court concluded that it was “within [the United States Customs and Border Protection]’s authority to preliminarily suspend liquidation of goods based on an ambiguous antidumping or countervailing duty order, such that the suspension may be continued following a scope inquiry by [the United States Department of] Commerce.” In reaching this holding, the court overruled two of its cases to the extent they could be read as contrary to the court’s holding in this case.
A Challenging Year
While the Federal Circuit continued its work in 2020 hearing appeals and deciding cases, the COVID-19 pandemic created challenges for the court. One related to the closing of the courthouse and the inability to have in-person oral arguments.
On March 12, the Federal Circuit issued an announcement that April oral arguments would be conducted telephonically for counsel outside the National Capital area. Four days later, the court issued a public advisory restricting access to the National Courts Building complex–where the Federal Circuit is located. Additionally, the court decided that all cases scheduled for argument during the April 2020 sitting would be conducted telephonically and that no in-person hearings would be held.
Despite the challenges posed by COVID, the court continued its business by adopting innovative solutions. For example, the court began providing media and public access to the live audio of each panel scheduled for argument during the April 2020 session. The court, however, was forced to cancel certain events. In May, for example, the court canceled its Judicial Conference in an effort to contain the spread of the coronavirus.
The COVID pandemic was not the only challenge to the court’s operations in 2020. In June, the Federal Circuit announced the closure of the National Court Building and the cancelation of telephonic arguments scheduled for the next day. As we reported, the court did not explain the closure, but the National Courts Buildings sits in Lafayette Square, the site of protests over police brutality.
For the remainder of the year, the court continually extended its access restrictions to the National Courts Building.
The impact of the pandemic on oral arguments proved to be substantial. The court heard 603 oral arguments in 2019. In 2020, by contrast, the Federal Circuit heard 421 oral arguments. This represented a 30% drop in oral arguments. But even of the oral arguments that took place in 2020, 254 of the 421 oral arguments (60%) were conducted telephonically. Here is a graphical representation of the impact of the COVID-19 pandemic on the court’s oral arguments, month by month:
Federal Circuit Rewrites Its Rules
One of the most significant things the Federal Circuit did in 2020 besides decide appeals was substantially rewrite its rules. As we reported, these changes to the court’s rules were paired with updated versions of the court’s forms, Electronic Filing Procedures, Guide for Oral Argument, Guide for Unrepresented Parties.
Of course the most significant thing the Federal Circuit does is decide cases. This week we will present blog post by various commentators, including leading practitioners and law professors. Each author has written a post covering major opinions issued by the Federal Circuit within the area of that author’s expertise. We’ll hear about the court’s work in trade, patent, employment, Tucker Act, and veterans cases. I hope you enjoy the symposium.