By Kyle R. Jefcoat | 64 Am. U. L. Rev. 807

The U.S. Court of Appeals for the Federal Circuit’s 2014 government contract decisions provide yet another opportunity to evaluate how the federal government, and the Federal Circuit in particular, has fulfilled the duty expressed by President Lincoln above.  The idea is “not that the government should lose every case appealed to the Federal Circuit, but that the government, when it waives its sovereign immunity, should be held to the same standards as its opponents.”

In recent years, a number of commentators have questioned whether the Federal Circuit has lived up to President Lincoln’s ideal.  Ralph Nash, Professor Emeritus of Law at the George Washington University Law School, argued that “[t]he Federal Circuit seems to have slowly drifted away from this view of its role.”  As Professor Steven Schooner of the George Washington University Law School explained, “rather than elevating fairness to the citizen as its foremost priority, the court has adopted a strong deference toward the government, regardless of whether in the role of plaintiff or defendant.”  Stanfield Johnson’s criticism of the Federal Circuit has been just as pointed:

[T]he Federal Circuit has made protection of the public fisc its priority.  Plainly, the decisions show that it is no longer considered a priority or “special responsibility” of the court “to make government officials accountable to the citizens whose servants they are” or for the Government to “render prompt justice against itself.”

All of these commentators based their opinions on Federal Circuit decisions that they believed failed to provide contractors with a level playing field.  However, such a case-by-case review potentially overlooks the bigger picture as to how the government, as a litigant, is regularly treated by the Federal Circuit.

This Article examines whether there is in fact empirical support for these commentators’ position that the Federal Circuit’s approach to government contract cases favors the government.  To conduct an examination that avoids the limitations of a case-by-case review, this Article performs a high-level review of all of the Federal Circuit’s government contracts cases decided in 2010 through 2014, paying particular attention to both the overall rate at which the government prevails and the rate at which the government prevails when it is the appellant.  The findings demonstrate that the government prevails at the Federal Circuit in the majority of its cases.  However, when those decisions are reviewed to consider the types of cases and whether the government or the contractor is appealing the underlying U.S. Court of Federal Claims (COFC) or Board of Contract Appeals (BCA) decision, the government and contractors appear to have very similar rates of success.

Although a superficial review of the empirical evidence could lead one to argue that the government wins more than its share of cases, the Federal Circuit’s 2014 decisions do not appear to favor the government.  Indeed, the court’s 2014 decisions resulted in wins for contractors in significant cases where a formal rule-based approach could have easily resulted in losses for the contractors.

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