Federal Circuit Residency Requirements

28 USC 44(c) provides that any newly appointed Federal Circuit judge must live within fifty miles of the District of Columbia. This rule appears to unduly limit the judges that may be appointed to the CAFC.  Other circuits also have residency requirements, but those circuits serve only a limited geographic area. And, the geographic boundaries of the regional circuits are often quite large. The Tenth Circuit, for instance meets in Denver, but Judges may reside 900 miles away in southern Oklahoma. Likewise, the First Circuit, which sits in Boston, includes one judge who resides in Puerto Rico. The other ‘national’ appellate court — the DC Circuit — has no residency requirements.

The Senate’s version of Patent Reform would eliminate the Federal Circuit residency requirement. From the Committee Report:

Without casting any aspersions on the current occupants of the Federal Circuit bench, the Committee believes that having an entire nation of talent to draw upon in selecting these judges could only be a benefit. The duty stations of the Federal Circuit judges will, of course, remain in the District of Columbia. Judges in regional circuits often travel considerable distances for court sessions within the circuit, far from their homes and chambers, and there is no practical reason why Federal Circuit judges could not do so as well. Discussion of changes Section 11 of the Act eliminates the residency restriction for Federal Circuit judges by repealing the relevant portion of subsection 44(c) of title 28.

Hal Wegner has often argued that the geographic limitation should be eliminated:

“There should be no special geographic limitation on the residence of Federal Circuit judges. To those who would say that it is important that judges live close to a central courthouse to be with all their colleagues[, that notion] goes against the reality of most circuits. For example, the Seventh Circuit sits in Chicago, yet six of the regular members of the court have chambers outside Illinois, four in Wisconsin and two in Indiana. The Third Circuit, which generally meets in Philadelphia, has members with chambers in New Jersey and Delaware, and one with chambers 300 miles away in Pittsburgh.”

The appointment process will be especially important over the next several years as several of the current judges move to senior status. Within two years, most of the current judges will be eligible for senior status.  (I sincerely hope that these experienced judges continue their decisions without slowing down.)

Comments

[notprovided]

I clerked for both (1) a judge on the Federal Circuit and (2) a judge on a regional circuit whose chambers were in a city away from the courthouse. From my perspective, the court ran much more smoothly and produced better opinions when the judges all worked in the same building. On the Federal Circuit, it was easy and common for the law clerks and judges to discuss the cases before argument and during opinion drafting. That almost never happened on the regional circuit.

How that affects the question whether to keep the restriction is another question. I offer only one person's perspective on one facet of that question.

[DJF]

I don't see why the present limitation is a problem. If the wife of the governor of, say, Arkansas relocates to DC b/c hubby gets a new job there, and can then herself become a senator from a state with which she has no connection, say NY, what's to prevent someone from relocating to DC if necessary in order to get a job on the CAFC? POTUS gives the person a heads-up anyway before nominating him/her, so if the nominee-to-be is from out of town he/she can first rent a place within the geographic boundaries and presto! instant nomination.

[TJ]

DJF, a nominee can already relocate to DC and satisfy the current statute (it only requires residency while in active service). The effect of this provision is that a judge cannot live in say, Hawaii, and communte to oral argument once a month by plane, which happens frequently for many judges in regional circuits.

As a former Fed. Cir. clerk myself, I have to agree with the first poster. It was very helpful for everyone to be in the same building. Now, there is the disadvantage that some qualified people may not be willing to move themselves and their families to Washington, but may be willing to commute one week a month for argument, and so there is the potential loss of otherwise qualified talent as judges. But it would be a shame to lose the one-building effect. I should note that although the D.C. Circuit has no statutory residency requirement, all the judges have their chambers in DC and presumably live close by.

[notprovided]

A few D.C. Circuit judges do not work primarily from D.C. offices, but most do. Hal Wegner's objection that "but nobody else does it" is valid, but it doesn't really address the merits of the requirement. Do the Federal Circuit judges colloborate more than the other circuits because of their geographic proximity? Is that worth the "cost" of excluding qualified applicants who want to live in Florida, California, Hawaii, etc. while flying to D.C. once a month?

[PRETTYBOYFLOYD]

Seems like it violates the privileges and immunities clause to me. Particualarly given the changes in which we travel and the speed of the same. It could only be considered a social networking criteria in that those inside the beltway want to ensure sympathy, if not downright obedience, to the whims and desires of those habitating in the DC area. It must fail as being unduely discriminatory to residences of the several states.

[PRETTYBOYFLOYD]

We must systematically break the monopoly of power on those in the DC area to ensure the representation of the several states. That is one reason the 17th Amendment MUST be repealed. The 17th Amendment and this statute are cut from the same cloth, or if you prefer, typed with the same font.