Opposition — In re Moore

FFLED

OCT 28 1983

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No. 83-365

In the Supreme Court of the Hnited Stztes

OCTOBER TERM, 1983

IN RE Davip PELTON Moore, By

MICHAEL R.P. MOORE AND

BARBARA R.P. MOorE, PETITIONER

ON PETITION FOR A WRIT OF MANDAMUS TO

THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

Rex E. Lee

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Page

Cases:

Department of Banking vy. Pink,

DOr UL. Oe: covduecncbiceeteesstoneseecees 4

Durham vy. United States, 401 U.S. 481 ....... 3,4

FTC v. Minneapolis-Honeywell Regulator

CA, POP CE 6 he eSeceeecacabeccunueaeea 3

Hensley v. Chesapeake & O. Ry.,

SE Eo 6 RRS odvucasvecavevisessuenens 4

Hill v. Hawes, 320 U.S. 520 ....cccceceeeees 3,4

Scofield v. NLRB, 394 U.S. 423 wo. ccc cece eues 3

United States v. Braasch, $42 F.2d 442 .......5. 4

Statute and rules:

Be Cs BONO ki Fake iune cuavnaseeeceen 3,4

Fed. R. Civ. P.:

TI eC vcaadcaacneucscckesbescneneae 3

Rule 77(d) advisory committee notes ....... 3

Sap CS. Te BAS isacvcpichsaveceswecteenascan 3

(I)

In the Supreme Court of the Hnited States

OCTOBER TERM, 1983

No. 83-365

IN RE DAaviID PELTON Moore, By

MICHAEL R.P. MOORE AND

BARBARA R.P. MOorE, PETITIONER

ON PETITION FOR A WRIT OF MANDAMUS TO

THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

Petitioners seek a writ of mandamus to compel the Uni-

ted States Court of Appeals for the Federal Circuit (1) to

re-enter its order denying rehearing so that petitioners can

file a timely petition for certiorari from the court's judg-

ment, and (2) to provide additional reasons to support its

judgment. Petitioners have failed to satisfy the standards

for the granting of an extraordinary writ.

1. Petitioners’ decedent brought this patent infringement

suit against the United States, seeking compensation for the

allegedly unauthorized use of the invention claimed in his

United States Reissue Patent No. 26,108, entitled “Solid

Explosive Composition and Method of Preparation Employ-

ing Vulcanized Rubber and a Solid Inorganic Oxidizing

Salt.” The plaintiff's contention was that certain rocket and

missile propellants used by or for the United States, and the

processes used in making them, infringed his patent. The

(1)

2

trial judge for the Court of Claims issued a 14-page opinion

recommending dismissal of the suit, on the ground that the

alleged infingement had not been proven. 211 U.S.P.Q. 800

(1981). This recommended decision was subsequently adopt-

ed by the then reconstituted United States Claims Court

(see Pet. App. 2a n.*).

The court of appeals affirmed. Although the court did

not “adopt[]” the trial court's opinion, it “agree[d] generally

with its substance and the reasons it gives for the conclu-

sion” (Pet. App. 2a). Petitioners, who were substituted as

appellants after plaintiff's death, filed a timely petition for

rehearing, dated January 21, 1983. That petition was denied

on February 9, 1983 (Pet. App. 3a), and the denial was duly

entered on the public record on that date.

On May 18, 1983, petitioners filed a motion to reenter

judgment in the court below. The basis for the motion was

that “{a] copy of the denial of the Petition For Rehearing

* * * was not received by counsel for appellant[s] until May

16, at which time a Petition For Writ Of Certiorari could

not be timely filed with the Supreme Court” (Motion to

Reenter at 1). In an affidavit attached to the motion, coun-

sel for petitioners stated: ‘The denial of the Petition For

Rehearing * * * dated February 9, 1983, was first received

in this office on May 16, 1983” (Affidavit at | para. 3).'

On June 6, 1983, the court of appeals denied the motion

to reenter judgment (Pet. App. 4a), and on August 28

—some 83 days later—petitioners filed a petition for man-

damus in this Court.

2. Petitioners’ first contention is that the court of

appeals should be compelled to reenter judgment in order to

accord them an opportunity to file a petition for a writ of

'We have lodged a copy of this motion and affidavit with the Clerk of

this Court.

3

certiorari, since the asserted failure of the clerk of the court

of appeals to send them timely notice of the denial of

rehearing effectively deprived them of their original oppor-

tunity to do so. However, 28 U.S.C. 2101(c) provides that

the time for filing a petition for a writ of certiorari runs from

“the entry of [a] judgment or decree.” Supreme Court Rule

20.4 further provides that the time for filing runs from the

“date of the denial of rehearing” in cases in which a timely

petition for rehearing is denied by the lower court. Neither

the statute nor the rule calculates the running of time from

notic? of the denial of rehearing. Ordinarily, reentry of

judgment by a court of appeals does not enlarge the time for

filing of a petition under 28 U.S.C. 2101(c) (FTC v.

Minneapolis- Honeywell Regulator Co., 344 U.S. 206, 211

(1952)), and the circumstances of this case do not compel an

exception. Cf. Durham vy. United States, 401 U.S. 481,

481-482 (1971); Scofield v. NLRB, 394 U.S. 423, 427

(1969).2

There is no reason why, with due diligence, petitioners’

counsel could not have discovered the denial of their peti-

tion for rehearing in time to seek certiorari. As noted above,

the denial of rehearing was entered on the court's public

docket on February 9, 1983. Moreover, petitions for rehear-

ing in the Court of Appeals for the Federal Circuit and its

predecessor courts have generally been decided quickly,

and an attorney familiar with practice before that court

should not allow over four months to pass before inquiring

about the status of a petition for rehearing, as happened in

*See also Hill v. Hawes, 320 U.S. 520 (1944). In Hill, the Court held

that a district court can extend the time for taking an appeal by

reentering the judgment, where the losing party's opportunity to appeal!

would otherwise lapse before he had received notice of an adverse

decision. The result in Hill was overturned by a 1946 amendment to the

Federal Rules of Civil Procedure. See Fed. R. Civ. P. 77(d) and the

advisory committee notes thereto.

4

this case.2 By contrast, in Durham, the petitioner had

inquired about the status of his petition for rehearing and

had been specifically informed that the court would notify

him “as soon as the court acted.” Several months later, he

inquired again, only to be informed that his petition for

rehearing had been denied six months before. 401 U.S. at

481-482. See also Hensley v. Chesapeake & O. Ry., 651

F.2d 226, 229-231 (4th Cir. 1981). Petitioners have not cited

any similar circumstances or other reasons suggesting why

they should be granted special relief. Their claim thus redu-

ces to an argument for a per se extension of time to file a

petition for certiorari in any case in which timely notice is

not provided of a denial of rehearing, whether or not due

diligence was exercised in seeking notice. The court of

appeals’ denial of petitioners’ motion for reentry of judg-

ment was not, therefore, an abuse of discretion warranting

issuance of a writ of mandamus.

Moreover, petitioners’ claim to mandamus relief is weak-

ened by their 83-day delay before filing a mandamus peti-

tion with this Court. Cf. Hill v. Hawes, 320 U.S. 520, 521

(1944) (relief sought seven days after notice of appeal time

had run); Durham, 401 U.S. at 481-482 (certiorari petition

filed three weeks after untimely receipt of order denying

rehearing). Although there are no strict time limits on

requests for extraordinary relief, the Court, in exercising its

discretion, should consider whether the petitioner has

moved expeditiously. See United States v. Braasch, 542

F.2d 442, 444 (7th Cir. 1976).

}We do not suggest that attorneys must deluge the courts of appeals

with periodic inquiries about the status of petitions for rehearing in

order to protect against the rare instance in which the clerk of the court

may fail to provide notice. However, it is reasonable to expect an

attorney to make inquiry after months have elapsed, in view of the time

limit imposed by 28 U.S.C. 210\(c), which is jurisdictional. See

Department of Banking v. Pink, 317 U.S. 264 (1942).

5

3. Petitioners’ objection to the adequacy of the court of

appeals’ opinion is premature. If afforded an opportunity to

file a petition for certiorari, they can seek to have the

judgment vacated and remanded for fuller explication at

that time. In any event, mandamus is not available to com-

pel a court of appeals to write a more expansive opinion.

The court here expressly adopted the substance and reasons

of the trial court’s opinion, although it stopped short of

adopting its language. The court of appeals thereby apprised

counsel and his clients of the basis for its action.

It is therefore respectfully submitted that the petition for

a writ of mandamus should be denied.

Rex E. Lee

Solicitor General

OCTOBER 1983

DO]J.\ 983-10