Peter B. Broida

Attorney at Law                                                                                           2009 North Fourteenth Street, Suite 705

                                                                                                                     Arlington, VA 22201

                                                                                                                     Tel. (703) 841-1112

                                                                                                                     Fax (703) 841-1006

July 11, 2006

Office of the Clerk

Court of Appeals for the Federal Circuit

717 Madison Place, NW

Washington, DC 20439

          Re: Proposed Rulemaking

Gentlemen:

I offer a few comments with respect to the June 15, 2006, notice of proposed rulemaking. My practice involves civil service law. On behalf of my clients, I make occasional appearances before the Federal Circuit. I do some writing and teaching in my area of the law.

The use of nonprecedential decisions has been a vexing matter for the bar generally, the Federal Circuit, and the Merit Systems Protection Board, and all this has been complicated by commercial publication of nonprecedential decisions by West Publishing in the Federal Reporter series. All this you already know.

As to proposed Rule 32.1, I am in agreement with all of the provisions except for subsection (e). Any person should be allowed to request the Court to reissue a nonprecedential as a precedential decision at any time. Unless an individual is a party to a case or counsel to a party in a case, or unless an individual makes a regular practice of exploring decisions posted to the Federal Circuit’s web site, the chances are minimal that a nonprecedential decision will be known to an individual within 60 days of its issuance. This is of some significance in the civil service area of the law, in which representation of the United States and its agencies is concentrated in the Commercial Litigation Branch, Civil Division, Department of Justice, or, for some cases, in the Office of General Counsel of the Merit Systems Protection Board. Supervisory attorneys in those two agencies will know of all decisions being issued by the Federal Circuit within a very short period of time after their issuance. Attorneys who regularly represent appellants (employees or ex-employees of the Federal government) before the Federal Circuit have no realistic way of knowing, within 60 days of issuance, of particularly interesting or significant nonprecedential decisions.

I recognize that the relative antiquity of the case that is issued on a nonprecedential basis should be a factor that can be considered with respect to its reissuance as a precedential decision. After all, judges and their law clerks would have to reacquaint themselves with the issues and possibly the record in a case, and the task becomes more arduous with the passage of time. Nonetheless, the passage of time should be a factor to be considered and not an absolute bar, as it is now defined by the 60-day limitation set out in Rule 32.1(e).

Thank you for your consideration of my comments.

Yours very truly,

Peter B. Broida