Federal Circuit Panels Can be Larger Than Those of Every Other U.S. Court of Appeals
Of the thirteen U.S. courts of appeal, only the Federal Circuit (CAFC) is authorized by statute to have panels of more than three judges. This is in 28 USC 46(c): “Cases and controversies shall be heard and determined by a court or panel of not more than three judges (except that the United States Court of Appeals for the Federal Circuit may sit in panels of more than three judges if its rules so provide).” If you’re like me, that parenthetical exception raises some questions. I’m here to provide answers.
Do the rules of CAFC “so provide” for such larger panels? Yes, they do. It’s in Federal Circuit Rule 47.2(a): “When not heard en banc, cases and controversies will be heard and determined by a panel consisting of an odd number of at least three judges.”
Has the Federal Circuit heard cases with panels of more than three judges? Yes, it has, though only rarely. An example is Martek Biosciences v. Nutrinova, 579 F.3d 1363 (Fed. Cir. 2009), a patent infringement case. Footnote 2 cited the provisions of the USC and the Federal Circuit rules as authorizing the larger panel, although no reasons were given for the use of a larger panel in this case. Other examples of the CAFC’s use of five-judge panels in patent cases are Pressure Prod. Med. Supplies v. Greatbatch, 599 F.3d 1308 (Fed. Cir. 2010), and Kinzenbaw v. Deere & Co., 741 F.2d 383 (Fed. Cir. 1984).
What about even larger panels? Has a panel with more than three judges been used in a non-patent case? Two questions, one answer. The CAFC employed a seven-judge panel in a regulatory takings case, Cienega Gardens v. U.S., 503 F.3d 1266 (Fed. Cir. 2007). The case was a remand that consolidated two earlier cases. As footnote 11 stated, “Given the interrelation between the two cases and because two separate panels heard the prior appeals, we heard this appeal as a seven-judge panel pursuant to our statutory authority.” For another non-patent case with an enlarged panel (five judges), see U.S. Shoe Corp. v. U.S., 114 F.3d 1564 (Fed. Cir. 1997). At the time of U.S. Shoe Fed. Cir. Rule 47.2 provided that appeals from three-judge panels of the Court of International Trade would “ordinarily be referred to a panel of five judges.” (The rule no longer does so.)
Why is this exception there? It was because there were five judges on the Court of Customs and Patent Appeals (CCPA), a direct predecessor to the CAFC, all of whom sat together to decide cases. The availability of larger panels was carried over to the CAFC from the CCPA. As Giles Rich wrote, “Before the CAFC was created, there were some suggestions that maybe for a while it might have five-judge panels, especially in important patent cases.” Giles S. Rich, Thirty Years of This Judging Business, 14 AIPLA Q.J. 139, 149 (1986).
Who was responsible for the CCPA’s approach? That was Congress’s idea, although they didn’t strictly make it a requirement. See the 1946 version of 28 USC 215 (now repealed, of course): “Three judges of the [CCPA] constitute a quorum. The concurrence of three judges is necessary to any decision.”
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