Federal Circuit Judicial Watch

The Court of Appeals for the Federal Circuit is a twelve member court, but that membership has been undergoing major changes over the past few years.

Most recently, Judge Arthur J. Gajarsa has announced his plan to step away from active service and assume senior status at the end of this week. Judge Gajarsa's absence creates a second open seat on the court. Although Edward DuMont has been nominated to fill the other open seat (vacated by Chief Judge Paul Michel, it appears likely that DuMont's nomination will not move forward at this point. Earlier this year, Judge Jimmie V. Reyna was confirmed by the Senate. The court has typically been seen as only lightly-partisan according to traditional Republican-Democratic lines, however it is interesting to note that Judge Reyna's confirmation marks the first time in history that the majority of active judges on the court were nominated by a Democratic President. Judge Kathleen O'Malley also joined the court on December 27, 2010.

With the recent passing of Judges Archer and Friedman, the court only includes four senior status judges: Judges Mayer, Plager, Clevenger, and Schall. As mentioned, Judge Gajarsa will soon join the senior status ranks. In 2011, senior judges have participated in over 20% of Federal Circuit panel decisions. Judges Newman, Lourie, Bryson, and Dyk are all eligible for Senior Status and Judge Linn will be eligible on his next birthday. Although none of those five have publicly announced any intent to step down, many expect at least two more lines to open-up during the next year.

The current Chief Judge of the Federal Circuit is Randall Rader. The position of Chief Judge of the Federal Circuit is given to the most senior active member of the court who is less than 65 years old and who has not previously been Chief Judge. The term is seven years. If Judge Rader serves-out his entire seven year term, then the next Chief Judge will be Judge Kimberly Moore. If, however, he resigns at least a year early, then Judge Sharon Prost would take on the post at age 64.

Thanks also to Hal Wegner of Foley & Lardner who has been keeping tabs on the Court.

6 thoughts on “Federal Circuit Judicial Watch

  1. 6

    @semi-anon: Thanks. I was pretty sure that birthdays were involved, but also assuming that Judge Newman was older. That works.

    Reminds me of The Brethrern. I recall that it says that Justice Warren tried to get onto the winning side, even tho he disagreed, so he could write the opinion.

  2. 5

    Great post. Thanks for keeping us updated, Dennis. Have you (or someone else) looked at how the evolving composition of the Federal Circuit might impact issues such as subject matter eligibility, damages, claim construction, etc.? Do you think it’s possible to do so given what we know today about the newest members of the court?

    Jorge M. Torres

  3. 4

    I the timing Markey’s resignation as chief affected whether his successor was Nies or Newman, but not precisely in the way Tom Field suggests. CJ Markey stepped down as chief before Judge Nies’s 65th birthday (8/7/1990), thus allowing her to succeed him as chief instead of Judge Newman. Had he stayed on past that date, I believe Judge Newman would have been chief. I don’t know how long CJ Markey was entitled to stay on as chief or what his reasons were for resigning exactly when he did.

  4. 3

    Tom – I don’t think that the story is true. When Judge Markey stepped down from his position as Chief, Judge Newman was not yet 65 years old. (She turned 65 in 1992). In any event, Judge Nies was the more senior because she joined the court in 1982 while Judge Newman joined in 1984.

  5. 2

    Note – I just updated the post after recalculating the ages. Judge Rader would need to retire 1 year and 1 week early in order for Judge Prost to be eligible for the position.

  6. 1

    From the last sentence, I conclude that Judge Prost will have attained the age of 65 during that week. I heard that something similar occurred at the end of Judge Markey’s tenure. Is it true that he true that he could have resigned a bit earlier, while Judge Newman was still eligible to be CJ, but chose not to, thereby passing the reins to Judge Nies?

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