Message From The Chief Judge

Fiscal year 2017 is closed and the record shows that the United States Court of Federal Claims had a very productive year and a great deal of which to be proud. Some of the initiatives undertaken since I became Chief have been accomplished or are works-in-progress, the results of which will be better known by this time next year.

First, the total number of general jurisdiction cases in fiscal year 2017 continued on a steady upward trajectory, with a 23% increase since 2014, of which 20% are bid protests. The backlog of cases has been reduced by 25% from 1,501 in fiscal year 2016 to 1,124 in fiscal 2017. The significance of this productivity cannot be overstated - this was accomplished with only ten active judges and six senior judges (each senior with a 50% docket).1 Another key benchmark, evidencing the court’s increased productivity, is reflected in the number of final case dispositions/cases decided (including bid protests) that increased overall by 82%, from 569 in 2016 to 1,035 in fiscal 2017. This makes fiscal year 2017 the MOST productive in the last twelve years! Another important metric is the number of published opinions issued. In fiscal 2016, the number of written decisions issued was 369; in fiscal year 2017, that number increased to 396 or a 7.5% increase, but the real significance is that the number of pages per decision increased from 4,574 to 6,365 or a 39% increase—an indicia that the decisions issued in fiscal 2017 were much more complex and included more legal issues to be resolved, including government counterclaims for fraud. In addition, the money judgments entered for private parties were almost $1.3 billion, the largest amount since 2007 and the second largest in the past twelve years. Vaccine petitions filed also increased by 11% from fiscal year 2016 to fiscal year 2017.

In my initial message to the court and bar, I announced an initiative to restore the United States Court of Claims to its historical Article III status. Beginning in late April 2017, Judge Lettow and I were joined by the Chair of the Inter-Circuit Assignment Committee of the Judicial Conference, with the knowledge of the Administrative Office of the United States Courts. We met with almost half of the Senate Judiciary Committee staff over the summer. The good news is that no one failed to recognize the substantial benefit this would have on the administration of justice. The draft bill we proposed has been submitted to the Congressional Budget Office for a score. That will take some time. But, if we get a positive score, i.e., the restoration will not have any impact on the budget, then we will resume efforts by requesting that the Senate Judiciary Committee (or relevant Subcommittee) convene a hearing. The bad news is the Judicial Conference, apparently after hearing about growing support and even enthusiasm for our bill, recently decided to oppose this effort; largely, because of their historical opposition to “specialized” courts and concern that our bill would interfere with their decades-old initiative to have Congress authorize some fifty-plus new district court judge positions. Returning to the good news, the relevant staff did not seem to be concerned with the Conference’s opposition and the Conference has invited us to seek their “reconsideration” after our draft bill is scored. And, the most recent Civil Justice Act Report, issued on September 30, 2017, shows a 19% national increase in the backlog of civil cases, more than 3 years old, particularly those concerning contract, environmental, and patent claims, where the United States Court of Claims has decades of expertise. Therefore, it is difficult to see how the Judicial Conference will be able to justify its position to Congress, under any objective analysis. More on this initiative later.

As many of you know, the Defense Authorization Act of 2016 requested that an independent research project be undertaken to examine bid protest data at the General Accountability Office (“GAO”) and the court. The Rand Corporation was assigned that work. In May, I appointed a Task Force, consisting of Judge Lettow, Judge Wheeler, Judge Coster-Williams, and myself to work with RAND in that effort. Since then, we have had two meetings with RAND; one in June and one in September, after which RAND heard oral arguments in two of our bid protest cases. The court’s Management Analysts Jacob Wilson and Summer Maynard have done yeoman work in collecting the court’s bid protest data and answering RAND’s questions. In addition, I have spent a considerable amount of time discussing that data with RAND and the GAO. RAND’s final report is due to Congress in December 2017. I have seen a confidential version of the initial working draft of the RAND report and believe it will be helpful to the court in deciding how to improve the time in which those cases are decided. In addition, the initial RAND report made several recommendations about how the Clerk’s Office collects bid protest data. I plan to present the court with a list of recommendations this month that can be adopted and implemented prior to the time RAND issues a final report in December 2017.

The Defense Authorization Act of 2016 also established what is known as the 809 Commission, to make recommendations to Congress to streamline and improve Department of Defense acquisitions. The 809 Commission has broad bi-partisan support and is expected to make initial recommendations to Congress about changes to the bid protest process after the RAND Report is issued, likely in early spring 2018. The data in the RAND Report, however, does not support an elimination of the court’s bid protest jurisdiction or the type of substantial changes to adjudicating bid protests, that publicly has been suggested by the Chair of the 809 Commission, as well as the Committee Chair assigned to this issue. (It is possible that the proposal to eliminate the court’s jurisdiction over bid protests is no longer being considered by the 809 Commission, but we continue to receive conflicting information from public sources.) Nevertheless, the court needs to anticipate what the Chair of the 809 Commission has characterized as “bold initiatives,” that could have an adverse effect on the court’s adjudication of bid protests. This is an area where current DoD policymakers and relevant congressional staff need accurate information about how the court handles bid protest cases and spread the word about the result in some of the court’s more high profile cases that has saved the taxpayers, not just MILLIONS, but BILLIONS of dollars. I understand the Congressional Research Service will be setting up an educational briefing in the spring in anticipation of the work to prepare the Defense Authorization Act of 2018.

Finally, whatever the reasons for the past opposition by Senator Cotton and others to filling the six current vacancies on the court, that opposition simply is no longer justified. Based on October 2017 filings alone, the court’s docket will reach an all-time high in the thousands in fiscal year 2018.

The largest dollar amount at stake falls into three categories. At present approximately 140 cases, including 12 class actions, have been filed alleging a loss and taking of private property, because of the Army Corps of Engineers’ decision to open the Addicks and Barker Flood-Control Reservoirs in Houston, Texas toward the end of Hurricane Harvey. Those cases, with claims estimated to be as high as $1 billion, have been consolidated and transferred to my docket for pre-trial management purposes. At a hearing on November 1, 2017 in Houston, the court was advised that an additional 300 cases will be filed by the end of the month and hundreds more are coming. I am currently working on preparing pre-trial orders, following the Mandatory Initial Disclosure Pilot Program underway in the District Court of Arizona and the Northern District of Illinois. In the near future, these cases will need to be tried, likely by at least four or more judges. Those assignments likely will entail months of trial in Houston and adversely impact the other cases on these judges’ dockets. 2

In addition, numerous bid protest cases were filed in the court after the GAO found procurement defects in the Department of Education’s December 9, 2016 proposed award of up to $2.8 billion for contracts to collect delinquent or defaulted student loans. A preliminary injunction was issued last May, pending imminent corrective action at the Department of Education. Once the award of new contracts, and the termination of others, is announced, a new round of bid protests likely will follow.

And, at present, another forty-plus cases have been filed by various insurance providers seeking payment for a breach of contracts, entered into under the Affordable Care Act (“ACA”). Two test cases have been decided that are pending before the United States Court of Appeals for the Federal Circuit. In light of Executive Order No. 13765, filed on January 20, 2017, additional ACA cases are also expected this fiscal year.

The bottom line is we need all six current vacancies filled as soon as possible and the reappointment of the five active judges whose term will expire in early July 2018 or five more judges on board by that time, to handle the trials that must commence shortly thereafter, to adjudicate these important and complex cases.

Enclosures: Fiscal 2017 Statistics

1 On November 1, 2017, Senior Judge Bodhan Futey tenured his resignation from recall, in light of his wife’s health. Bodhan will be greatly missed!
2 On November 1, 2017, a complaint also was filed as a result of the Army Corps of Engineers’ decision to open the Town Bluff Dam near Beaumont, Texas, flooding a significant number of property owners. Based on the situation in Houston, we expect more cases will be filed in the coming weeks. Since the facts of these cases are different than those in Houston, other judges will need to be assigned to those cases.

*Fiscal Year 2017 contains two sealed decisions that will be officially published on the Court’s website in early Fiscal Year 2018. Please visit the Court’s website at to view all published decisions.