Take it to the Banc: A General Plea for Increased Consistency and Clarification by Hon. Matthew H. Solomson, Judge, U.S. Court of Federal Claims

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A special column by the Hon. Matthew H. Solomson, Judge, U.S. Court of Federal Claims.  Judge Solomson has served on the Court since 2020. He previously practiced Government contracts law in private practice, at the U.S. Department of Justice, and in-house. He is the author of COURT OF FEDERAL CLAIMS: JURISDICTION, PRACTICE, AND PROCEDURE, a legal treatise published by Bloomberg BNA in 2016.

Variety may be the spice of life, but in the law—and for trial courts, litigators, and anyone having to comply with particular legal rules—we crave uniformity, consistency, and predictability. Judges also try their best to get the correct outcome, although at least one party is almost certain to disagree that such goal has been achieved in any particular case. Since 2006, I have been on a journey to get the “interested party” standing question right. This is a threshold issue in so-called “bid protests” before our court. But my effort to understand and apply the law, as of late, has resulted in what one might call judicial whiplash. If you're guessing that my most recent source of neck pain is Percipient.ai, Inc. v. U.S., ——— F.4th ———, 2024 WL 2873163 (Fed. Cir. June 7, 2024), you're right.

The winding road to our jurisprudential destination—and where are we, precisely?—is worth retracing as it illustrates the uncertainty the bench and bar often face when a U.S. Court of Appeals for the Federal Circuit panel decision breaks new ground or heads off in an unexpected direction.

Please read:  Take it to the Banc:  A General Plea for Increased Consistency and Clarification by Hon. Matthew H. Solomson, Judge, U.S. Court of Federal Claims.