# Petition for Writ of Certiorari — Millner v. ITT Aerospace/Communications Division of ITT Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 522 U.S. 1050

## Text

fe eu 8 WV

97 825 NOV 1 8 1997

OFMICE OF THE CLERK

No

In The
Supreme Court of the United States

October Term, 1997

United States of America
ex_rel.
Charles M. Millner
Relator
Petitioner,
v.

ITT Aerospace/Communications
Division of ITT Corporation
Incorporated
Respondent.

On Petition For Writ Of Certiorari
To The United States Court of Appeals
For The Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

Charles M. Millner

Pro Se
7853 West — 600 North
Andrews, Indiana 46702
(219) 344-1666

QUESTIONS PRESENTED FOR REVIEW

Pro Se Petitioner (Millner) brought suit under the
False Claims Act 31 U.S.C. 3729-3733, against
Respondent (ITT). The District Court dismissed case
under Summary Judgement. Upon appeal, the —
Court concluded that Millner was not informed of how
to properly respond to a Summary Judgement, but did
not remand case back to District Court.

In order to remand the case back to District Court
for Jury Trial, why has the Appellate Court....

1. Demanded further proof in a matter that ITT does
not contest, thus requiring an unattainable level of proof.

2. Not allowed Millner to use the same document to
prove his case that the Court has used to dismiss it.

3. Determined that the Inventor (Millner) was unable
to have any personal knowledge of his Invention.

il

PARTIES TO THE PROCEEDING

The caption of the case contains the names of all
the parties to the proceeding.

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TABLES OF CONTENTS

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PE Abo isso Doerr Supp. Aff. at § 5.
*4 Doerr Supp. Aff. at § 7.

*> ITT had implemented a change in the testing
procedure in 1987 which allowed the shock isolators on
the mounting tray to be changed out every two hours
during the production reliability acceptance tests.

*° Doerr Supp. Aff. at § 11; Bates No. J83-J84.

sialic

App. 33

improvement to the shock isolators was not necessary as
the Army had not reported any field failure of the
SINCGARS attributable to failure of the shock isolators.

As ITT correctly points out, to prove that ITT is
liable to the Army under the False Claims Act, Millner
must prove that ITT knowingly submitted a false claim
or made false statements them to be false. United States
ex rel. Hagood v. Sonoma County Water Agency, 929
F.2d 1416, 1421 (9th Cir. 1991). ITT also takes the
position that Millner must establish four elements to
prevail in this action:

(1) that ITT presented or caused to be
presented to an agent of the United States
a claim for payment;

(2) that the claim was false or
fraudulent;

(3) that ITT knew the claim was false
or fraudulent; and

(4) that the United States suffered
damages as a result of the false or
fraudulent claim.

ITT has cited Young-Montenay Inc. v. United States, 15
F.3d 1040, 1043 (Fed. Cir. 1994), which in turn cites
Miller v. United States 550 F.2d 17, 23 (Ct. Cl. 1977), in
support of its position.

App. 34

The United States has filed an amicus curiae brief
in which it takes the position that ITT has incorrectly
argued that Millner is required to establish that the
United States suffered damages as a result of the false or
fraudulent claim. The United States argues that the plain
language of the False Claims Act specifies that the
plaintiff or relator, under any circumstances,
is entitled to a penalty of between $5,000 and $10,000
for every false claim or statement proven, plus any
damages proven. 31 U.S.C. §3729(a).

A review of the case law reveals that Young-
Montenay, supra, did in fact state that damages to the
United States must be proven. However, Miller, supra,
the case cited for this proposition, does not hold that
damages must be proven. Rather, as the government
argues, the statute and the case law clearly indicate that
damages need not be shown in order to recover the civil
penalty under the False Claims Act. Rex Trailer Co. v.
United States, 76 5. Ct. 219 (1956); Hagood, supra;
United States v. Kensington Hosp., 760 F. Supp. 1120
(E.D. Pa. 1991). Thus, this court will not require Millner
to meet part four of the test discussed above.

Nevertheless, ITT has argued that Millner cannot
meet parts two and three of the test. Specifically, ITT
claims that there were no false or fraudulent claims
made to the Army as the Army had full knowledge of the
jam nut configuration as a proposed solution to the
shock isolator problem. According to ITT’s evidence,

App. 35

ITT and the Army contracted for a Preplanned Product
Improvement Study (“P31”) in 19887’. The purpose of
this study was to assess a variety of potentially
problematic aspects of the SINCGARS system, one of
which was the mounting tray shock isolators**. With
respect to the shock isolators, the September 15, 1989,
P31 Final Study Report prepared by ITT for CECOM
States:

Two solutions have been identified that
will correct the inadvertent rotation of the
mounting stud. The first solution utilizes
Grade A Loctite to secure the mounting
stud to the shock isolator. The second
solution incorporates a longer mounting
stud and a jam nut.

Using Grade A Loctite will increase
the retention of the mounting stud/pedestal
threaded interface over the currently—
used Grade H Loctite. The Grade A
Loctite will also, however, complicate the
rework problems of removing the
mounting stud from the shock isolator.

*” Doerr Aff. at q 8.

28 Id

App. 36

A longer mounting stud can be
installed into the isolator and a jam nut
can be secured onto the mounting stud
from the backside of the isolator. The use
of the longer stud and jam nut eliminates
both the need for Loctite and the rework
problems associated with the disassembly
of the mounting stud from the isolator
assembly.

Doerr Aff at § 9 and Ex. “A” to Doerr Aff., Bates Nos.
J121-J157, at J151.

The P31 Study’s “Conclusions and
--Recommendations” section stated that:

Results of this study indicate that a
significant cost reduction and increased
mechanical integrity can be accomplished
for the SINCGARS mounting tray. The
new design wil! eliminate the corrosion,
manufacturing and performance problems
that affect current mounting tray design.

Based on the above conclusions, it is
recommended that ITT-A/OD and the
Army redesign the mounting tray. A
parallel design approach that evaluates
multiple materials (cast aluminum and
plastic) should be implemented.

App. 37
Bates No. J155.

ITT also points out that as early as February 19,
1990, William Newell, the contracting officer, had (as a
result of the P31 Study) requested that ITT generate
Engineering Change Proposals (“ECP”) for three
improvements, the first of which was:

Product Improvement No. 4, Mounting
Tray, paragraph 3.2 entitled “shock
isolator.” An ECP is required to
incorporate a longer mounting stud and
jam nut on the isolator to improve the
mounting tray’s vibration performance.

| Cut-in to production is desired as soon as
possible.

* * *

It is requested that concurrent with the
| submission of the above ECP’s, ITT

i provide this office with a firm fixed price
proposal to incorporate this effort into the
SINCGARS Ground contract.

* * =~

This letter is only a request for
proposal and in no way authorizes the
contractor to begin work on this effort.
This letter shall not be construed as
authorizing an increase in contract price,
nor shall it relieve the contractor from any
of the terms or conditions of the contract.

App. 38
Bates No. J212-J213.

ITT argues that the Army was obviously aware of
the jam nut configuration as a proposed solution as early
as February 1990, as the Army could not have requested
an Engineering Change Proposal for a modification of
which it was unaware.

Although Millner is obviously of the belief that
the jam nut configuration was not incorporated into the
mounting tray design because ITT concealed this
improvement from the Army, according to ITT the Army
simply rejected the jam nut configuration. To support
this assertion, ITT has provided the court with the
deposition testimony of Robert Fabish, a former
SINCGARS Program Manager. Referring to a
handwritten note dated February 10, 1992 appended to a
Failure Review Board Submittal Memorandum”’, Fabish
indicated that the government made the ultimate decision
not to incorporate the jam nut configuration”.

In light of all of the above evidence, ITT
concludes that the Army’s knowledge and rejection of
the jam nut configuration bars Millner’s action under the
False Claims Act. ITT insists that it performed its
contract exactly in conformance with the requirements
of the contract, which contract reflected the Army’s
decision to retain the original mounting tray design.

App. 39

ITT further argues that, even assuming that Millner
is right and that the SINCGARS system would be a
better, more reliable radio with a vastly increased life
span with the jam nut configuration, Miliner’s False
Claims Act action still fails. As the Ninth Circuit stated
in Wang v. FMC Corp., 975 F.2d 1412, 1421 (9th Cir.
1992):

Without more, the common failings of
engineers and other scientists are not
culpable under the (False Claims] Act.

[This] case betrays a serious
misunderstanding of the Act’s purpose. the
weakest account of the Act’s “requisite intent” is
the “knowing presentation of what is known to be
false.” The phrase “known to be false” in that
sentence does not mean “scientifically untrue”; it
means, “a lie.” The Act is concerned with
ferreting out “wrong doing,” not scientific errors.
What is false as a matter of science is not, by that
very fact, wrong as a matter of morals. The Act
would not, put either Ptolemy or Copernicus on

trial.

*” Fabish Dep. Ex. 17. Exhibit 17 reads: “Gov't
has decided that a redesign or change in isolators is not
warranted. They are going to buy per dwg pkg [drawing
package]. Bob Fabish. 2/10/92.”

*° Fabish Dep. at 34:19 — 35:8.

App. 40

See also United States ex rel. Anderson v. Northern
Telecom, Inc., 52 F.3d 810, 815-16 (9th Cir. 1995).
Thus, according to ITT, the fact that ITT and the Army
did not agree to incorporate the jam nut configuration
into the SINCGARS contract, even if doing so would
have improved the SINCGARS system, does not give
Millner a cause of action under the False Claims Act.

Millner filed a 25-page response to ITT’s motion
for summary judgment on August 25, 1995. Millner also
filed a “response” to each of ITT’s affidavits filed in
support of its motion for summary judgment”’. The filing
of “responses” to affidavits is not sufficient under Rule
56 to defeat summary judgment. Rather, affidavits must
be rebutted by evidence, which may include countering
affidavits. For the most part, Millner’s “responses”
consist of arguments that he does not believe the
information in the affidavits. To the extent that
supporting evidence is lacking, Millner’s arguments are
insuff4.cient to create a genuine issue of material fact.

*! As ITT has pointed out, the filing of these
responses (which total 52 pages) is in violation of this
court’s briefing limitations. See Order of August 7, 1995
and Local Rule 7.1(b).

App. 4 1

In his responsive brief, Millner does not address
ITT’s arguments and evidence that the Army knew of the
jam nut configuration but ultimately rejected the idea.
Millner now focuses his arguments on his allegations
that ITT concealed the jam nut configuration from the
Army for several years in order to win contracts for
further study”. Millner also claims that ITT would not
disclose the jam nut configuration to the Army because
ITT had the Army convinced they did not have a
solution, and to later disclose that a simple solution had
been discovered would have been embarrassing to ITT.
In support of this latter assertion, Millner relies on
inadmissible triple hearsay. Specifically, Millner alleges
that Rippe told him that Kammer told Rippe that it
would be embarrassing to disclose the proposed
solution®’. Rippe, however, stated in his deposition that
he was told to drop the matter because there was no bad

- field experience which would justify the cost of

proposing the jam nut configuration as a solution to the
shock isolator problem™.

* TTT claims that Millner has abandoned his original
claims and has now improperly asserted claims not included in his
complaint. A review of Millner’s complaint reveals that in
Paragraph 13, Millner alleges that ITT improperly accepted a
contract in 1990 to study the problems with the mounting tray.
Thus, at least some of Millner’s arguments are based on allegations
in his complaint. In any event, as ITT has fully responded to
Millner’s claims, this court will likewise address all of the issues
raised in Millner’s response brief.

3 Millner Dep. at 38:3 — 39:6.
* Rippe Dep. at 20:12 — 21:4.

App. 42

Millner has contended that ITT
wrongfully requested funds to perform both
the P31 Study and a later study known as the
Taguchi Study. As noted above, ITT and the
Army contracted for the P3I Study in 1988,
and ITT submitted a P31 Final Study Report
on September 15, 1989. Millner claims, in
essence, that the Army would not have
awarded the contract for the P31 Study had
it known of the jam nut configuration. In his
response, Millner claims that the jam nut
configuration was a proven solution. In
support of this claim, Millner directs the
court to an internal memo from Dan Rippe
to J. Kopson (dated September 1, 1987), in
which Rippe discusses two methods of
extending shock isolator life:

The second method is to change the
assembly method of the shocks. The new
method would be to use a longer center bolt
(new: 1/4 - 20 x 1.000) and jam nut
combination. With this method, loctite
(grade A) would be applied only to the jam
nut threads leaving t’ threads inside the
pedestal section clean. Repairability now
entails using a standard wrench or socket to
remove the loctited jam nut and then a
standard Allen wrench to remove the bolt
from the shock.

CN AUG AI NE 1 VETS

App. 43

In conclusion, the current assembly
process is insufficient for proper isolator
life during multi-axial random vibration.
The life and repairability of the isolators
can be maximized by a simple change in
the assembly process. Both options
discussed above have been proven through
36 hours of random vibration. A cost
analysis was done on the second method
and is submitted with this memo.

Bates No. J107.

It is important to note here that Millner has
admitted in his deposition that the jam nut configuration
was not a fully tested idea at this point. In fact, Millner’s
own testing revealed that the jam nut configuration had
serious problems. The pertinent portions of Millner’s
deposition testimony is as follows:

Q:

A:

Did you ever do any ballistic shock testing
on (the jam nut configuration)?

Yes.

What do you believe the results of the
ballistic shock tests were?

The results show -- I can’t remember how
many drops we did. We may have only did

co ee ee ae

App. 44

[sic] a couple of drops. It indicated the top
of the jam nut came in contact with the top
-- I believe it was the top metal tray. The
mounting tray, basically, two metal sheets
separated by the four shock isolators, and
the jam nut which is on top of the main bolt
came in contact with the metal of the top
tray.

So you got metal—to-metal contact?
Yes.

Is that something that is good or bad or
indifferent in a radio?
Well, I would say it was not good.

What would you have had to have done to
have eliminated that metal-to-metal contact
with the jam nut solution?

What we could have done was probably
maybe a thinner jam nut, or it might have
turned out that was a benefit because that
would have prevented the movement of the
shock isolator. .

Would it be fair to say you never got that
far in the testing?

RA DE OER SA AES GSP SA Ea

Sk Sree

App. 45
A: Correct. Millner Dep. at 60:3 — 61:7.

Likewise, Rippe testified that the jam nut
configuration needed further testing before the idea
could actually be implemented:

Q: What was the subject of that, what you
called the final meeting*°?

A: I basically was asking Dale if we wanted to
pursue any engineering change notification
to implement any of the ideas that had been
discussed through Exhibits 4, 5, and 6, and
in response to that, Dale, who was not in a
position to say go ahead and spend funds to
implement the change, got basically Jack
Kopson and Don Kammer together, the four
of us, to discuss what to do with this
information.

Q: And what was the substance of that
discussion in that meeting?

* Rippe indicated that he could not remember the
exact date of this meeting, but estimated that it was
sometime during the first half of 1988. Rippe Dep. at
19:16.

App. 46

A: Do we want to go forward and do some
more testing possibly and look at implementing
this idea.

Q: And what was the response?

A: Well, the first and foremost response was
how do we justify the change, and the main
question was whether there were really any
field failures that would require us to make
a design change, why do we feel that it’s
inefficient.

Rippe Dep. at 19:17 - 20:11 (emphasis added).

In light of this deposition testimony, it is clear
that Millner’s allegation that ITT was aware of a
completely feasible and dependable solution to the shock
isolator problem before accepting the contract for the
P3I Study in 1988 is completely unsupported by any
evidence. Additionally, as noted infra, the P3I Study
addressed many issues and did not focus on the shock
isolator problem. Thus, even if ITT had informed the
Army of the jam nut configuration as a proposed
solution to the shock isolator problem in 1987, when
Rippe and Millner first hatched the idea, the 1988 P3]
Study would still have been necessary. After months of
discovery, Millner has not presented any evidence to the
contrary and, in particular, has not shown that even one
person has come to the conclusion that the jam nut
configuration should have been disclosed to the Army
earlier than it was.

App. 47

Even though the evidence clearly shows that the
jam nut configuration was disclosed to the Army in the
P31 Study Final Report on September 15, 1989, Millner
has alleged that ITT continued to conceal the jam nut
configuration from the Army in order to obtain funding
for another study. A few pertinent background facts are
as follows. On April 24, 1990, following the P31 Study
and the Army’s request to submit an ECP for the jam nut
configuration, ITT decided it did not want to implement
the jam nut configuration on a fixed price basis*’. Thus,
on June 12, 1990, CECOM requested that ITT submit a
bid for another design study of the entire mounting
tray” 7 On July 3, 1990, ITT submitted a bid of $48,481
to do the study of the mounting tray**. On June 30, 1991,
ITT issued a Final Design Study Report, which became
known as the Taguchi Study Report. The Taguchi Study
concluded that a stiffer mounting tray and utilization of a
different brand of shock isolator provided optimum
mounting tray performance’’. The mounting tray design
study addressed several issues relating to the mounting

*© See Bates No. J223.
37 See Bates No. J227-J228.

38 See Bates No. J229-J239.

*° Doerr Supp. Aff. at J 15; Bates No. J2538.

App. 48

tray, including use of alternative shock isolators,
different loading conditions imposed on the mounting
tray, structural integrity of the mounting tray from a
durability standpoint, investigation of possible new
materials for the mounting tray, metallurgical
implications of different welding steps, verification of
the shock isolator mounting design proposed in the P31
Study (the jam nut configuration), and the determination
of the shock isolator field replacement schedule*’. ITT
ultimately concluded that the mounting tray failures
were caused by problems with parts supplied by a

vendor".

ITT has also taken the alternative position that,
even accepting as true everything that Millner alleges,
Millner has not asserted a claim for relief under the
False Claims Act, because there is simply no evidence of
a false claim. According to ITT, for there to have been a
false claim in this case, Millner must show that there
was some sort of defect in the shock isolator, in the
practical sense, that needed improving. ITT points out
that the report submitted by Dan Rippe on September 1,
1987, was based on Rippe’s design margin testing of the
shock isolators*’. ITT points out that the purpose of a
design margin test is to take the established design and
test it to see how much (if at all), the established design

* Doerr Supp. Aff. at § 15; Bates No. J228; Bates
No. J2525.

*! Doerr Supp. Aff. at § 15.
*? Doerr Supp. Aff. § 6.a.

App. 49

exceed the specifications*’. Thus, a design margin test is
run until the part or system under testing fails, and to say
that a component fails during a design margin test is to
say only that the test worked. ITT argues that when
Rippe reported in his design margin test that the shock
isolators failed, Rippe was only stating that the design
margin test worked and not that the shock isolators were
defective. ITT claims that Millner is simply arguing that
ITT had a way to increase the design margin of the
shock isolators and, even if true, that does not make the
original design defective. ITT acknowledges that in an
engineering sense it may be better to have a 500%
design margin than a 400% design margin, but states that
until and unless the existing design is proven to be
defective, the Army (and the taxpayers) are within their
rights to insist upon the use of the current design.

Millner has claimed that the shock isolators were
defective. However, as ITT states, there is no evidence
supporting this claim. Although the shock isolators did
fail in testing at some point, there is no evidence that the
shock isolators did not meet the final requirements as per
the final SINCGARS contract. Rather the evidence
shows that the Army had used the current design for 20
years and had never experience a field failure of the
shock isolators. Affidavit of Robert Jones, Sr. at § 7, 8,
10.

-*

App. 50

In his response to the Jones Affidavit, Millner
claims that many of the reported field failures of the
SINCGARS system, as detailed in documentation
attached to the Jones Affidavit, were caused by broken
pins, etc., which Millner attributes to vibrations
transmitted to the system. Millner further claims that if
the shock isolators were doing their job, these other
causes of field failures would have been eliminated.
Millner’s argument fails for several obvious reasons.
First, Millner has no evidence, other than his own
speculations, to connect the failed radio to shock isolator
failures. According to Jones, whose job is specifically to
collect and maintain field failure data for all technical
aspects of the SINCGARS system, the shock isolators in
the failed systems had not failed, nor caused the failure
of the system.

Second, even if some of the failures were caused
by vibration, it has never been suggested that the shock
isolators were supposed to prevent all vibration from
being transmitted to the radio. Rather, common sense
dictates that all of the radios will experience some
vibration and thus if any part of a radio has a weakness,
this limited vibration would likely cause it to fail.
Finally, it is worth noting that machinery, even
sophisticated radios, may sometimes be subjected to
stresses not contemplated by manufacturers, such as
whacks on the side when unresponsive. Thus, this court
finds that Millner’s unsupported argument that some of
the reported field failures were necessarily caused by
failures of the shock isolators is without merit.

App. 51

This court has carefully studied all of the
evidence in this case and finds that summary judgment
should be granted in favor of ITT. This court finds that
each of Millner’s asserted claims are unsupported by
admissible evidence. The unrebutted evidence clearly
shows that at the time Rippe disclosed the jam nut
configuration in 1987, the idea was still not completely
tested. The evidence further shows that, after performing
testing, ITT disclosed the jam nut configuration to the
Army on June 30, 1991, as part of the P31 Study results.
Additionally, it is clear that the shock isolator problem
was only one of many problems studied at that time.
Millner has not submitted any evidence that the Army
would not have ordered the P31 Study had it known of
the jam nut configuration in 1987. Millner has also
failed to show that any other person has held the belief
that the jam nut configuration should have been
disclosed sooner.

Further, Millner has failed to show that funds for
the Taguchi Study were granted to ITT as the result of
concealment of the jam nut configuration. The evidence
clearly shows that the Army knew of the jam nut
configuration before it ordered the study. And, as with
the P31 Study, the Taguchi Study dealt with many issues
and did not focus on the shock isolator problem. In fact,
the Study concluded that the problems with the
mounting tray were caused by substandard parts
supplied by a vendor.

App. 52

This court further finds that Millner’s claims
under the False Claim Act fail because, even if ITT had
concealed the jam nut configuration, they had no duty to
disclose it in the first place. The unrebutted evidence
clearly shows that the Army was not experiencing field
failures of the shock isolators. The only thing ITT was
required to do was to meet its contract requirements, and
Millner has not presented any evidence showing that the
final contract required more than what ITT provided.

Consequently, this court will grant summary
judgment in favor of ITT on Millner’s claims against it.

The court will now address ITT’s request for
summary judgment on its counterclaim against Millner,
which request was included in its initial brief filed
August 1, 1995. ITT filed its counterclaim, along with its
answer to Millner’s complaint, on October 26, 1994.
The docket in this case does not reflect any answer by
Millner to ITT’s counterclaim. Likewise, although
Millner has submitted over 100 pages of briefing in
connection with ITT’s motion, Millner has completely
failed to make any response to ITT’s request for
summary judgment on is counterclaim.

_ ITT has filed its counterclaim pursuant to 31
U.S.C. 13730(d) (4) which provides that:

If the Government does not proceed
with the action and the person bringing the
action conducts the action, the court may

MN aA a

App. 53

award to the defendant its reasonable
attorneys’ fees and expenses if the
defendant prevails in the action and the
court finds that the claim of the person
bringing the action was clearly frivolous,
clearly vexatious, or brought primarily for
purposes of harassment.

ITT claims that Millner’s claim under the False Claims
Act is merely the latest tactic Millner has used to harass
ITT since Millner was discharged from his employment
with ITT on June 19, 1991.

In support of its assertion that Millner’s only
intent is to harass ITT, ITT has provided the court with a
list of Millner’s previous acts against ITT:

1. After his termination, Millner picketed
ITT’s property for over fifteen weeks
bearing a sign that stated “Vietnam
Veteran Fired From Army Contract.
Thank You, ITT.”*4

Affidavit of Les Sackett at § 7.

App. 54

2. Millner conducted a defamatory letter-
writing campaign* directed at United States
Senators and Representatives, the President
of the United States, multiple branches of
the armed services including numerous
Generals, Admirals, and other ranking
officers, and foreign heads of state.

3. On July 30, 1991, Miliner filed a
baseless charge with the National Labor
Relations Board alleging violation of the
National Labor Relations Act.

4. On September 12, 1991, Millner filed a
baseless charge with the Equal
Employment Opportunity Commission
alleging that he was the victim of reverse
discrimination.
5. Finally, Millner filed the present action
on January 10, 1994.

ITT also points out that Millner admitted several times in
his deposition that he would continue to pursue ITT in
any way he could”.

*° By his own estimation, Millner has written
“800 to 1000” letters. Millner Dep. 141:112 - 16.

*°Millner Dep at 109:12—23 and at 137:10—20.

LA

App. 55

Clearly, ITT has shown that since Millner’s
termination he has pursued a pattern of conduct
calculated to harass ITT and cause it as much harm as
possible. It is also clear that Millner’s False Claim Act is
frivolous, vexatious, and brought primarily for purposes
of harassment. Therefore, this court will grant summary
judgment in favor of ITT to the extent it is seeking
attorney fees and expenses as permitted by §3730(d) (4).

In its counterclaim (but not in its motion for
summary judgment), ITT has requested that the court
“[a] ward ITT its costs and expenses in responding to the
frivolous and harassing charges, letters and claims of
Millner.” As these costs and expenses are not permitted
to be recovered pursuant to §3730 (d) (4), this court does
not have jurisdiction to consider awarding such costs and
expenses. Rather, ITT should pursue recovery of these
items through some other avenue. Consequently, this
court will dismiss this portion of ITT’s counterclaim
without prejudice.

Finally, the court will address ITT’s request for a
permanent injunction. This request is not part of ITT’s
counterclaim and is first raised in its brief in support of
its motion for summary judgment. ITT has requested a
permanent injunction “barring Millner forever from
asserting any claims whatsoever against ITT for any
actions or occurrences prior to the date of the Court’s
Order on this Motion and award ITT its costs and fees
incurred in defending this action.”

App. 56

Although ITT has cited cases for the proposition
that the court has discretion when deciding a request for
a permanent injunction, ITT has not cited any authority
that would permit this court to grant an injunction of the
type requested under the present circumstances. While
the court may have discretion in such matters, there still
has to be some basis for exercising this discretion. In the
present case, there is simply no legal basis for this court
to grant the requested injunction. If Millner continues to
harass ITT, ITT clearly has the resources and the
evidence to pursue a state court action against Millner.
Consequently, ITT’s request for a permanent injunction
will be denied.

Conclusion

For all of the forgoing reasons, ITT’s motion for
summary judgment is hereby GRANTED with respect to
all of Millner’s claims against ITT.

Further, ITT’s motion for summary judgment is
hereby GRANTED with respect to ITT’s counterclaim
against Millner to the extent that ITT is seeking to
recover its reasonable attorney fees and expenses
incurred in defending the present action. The remainder
of ITT’s counterclaim, which requests recovery of costs
and expenses incurred as a result of defending against

NT 6 WDE ENE ra

App. 57

Millner’s other acts of
harassment, is hereby DISMISSED
WITHOUT PREJUDICE. ITT shall
submit to the court its request for fees
and expenses incurred in defending the present action

within 30 days. Millner may respond within 30 days
thereafter.

Finally, ITT’s request for a permanent injunction
is hereby DENIED.

Enter: September 27. 1995

“s/ William C. Lee”

William C. Lee, Judge
United States District Court

App. 58
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
Decided August 21, 1997
Before

Hon. THOMAS E. FAIRCHILD, Circuit Judge

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. JOHN L. COFFEY, Circuit Judge

CHARLES M. MILLNER, _ ) Appeal from the United
) States District

Plaintiff-Appellant, ) Court for the Northern
) District of
) Indiana, Fort Wayne
) Division.
No. 95-3545 )
) No. 94C9
)
ITT AEROSPACE/ )
COMMUNICATIONS ) William C. Lee, Judge.
DIVISION OF ITT )
CORPORATION, )
INCORPORATED, )
Defendant- Appellee. )

Licicmscienieaieaaiiinieaaeaaiiitiaaiaal

App. 59
ORDER

On August 4, 1997, plaintiff-appellant filed a petition for
rehearing with suggestion for rehearing in banc. All the
judges on the original panel have voted to deny the
petition and none of the active judges has requested a
vote on the suggestion for rehearing in banc.

The petition for rehearing is therefore DENIED.

App. 60

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION
FILED
95 NOV-3 PM 1:26
STEPHEN R. LUDWIG,
CLERK
U S DISTRICT COURT |
NORTHERN DISTRICT i
OF INDIANA 4
UNITED STATES OF AMERICA,)
) 4
Plaintiff, ) i
)
ex rel. ) CIVIL NO.
CHARLES M. MILLNER, ) 1:94cev9 |
Relator, )
)
V. )
) 4
ITT AEROSPACE/ ) ,
COMMUNICATIONS ) |
DIVISION OF ITT ) q
CORPORATION INC., ) |
) >

) i
Defendant. ) | |

App. 61
ORDER

This matter is before the court on a motion to
reconsider filed by the relator, Charles M. Millner
("Millner"), on October 10, 1995. The parties completed
briefing the motion on October 30, 1995. For the
following reasons, the motion to reconsider will be
denied.

iscussion

Millner initiated this lawsuit on January 10,
1994, pursuant to the qui tam provisions of the False
Claims Act, 31 U.S.C. §§3729-33 (1988). In his lawsuit,
Millner alleged that the defendant, ITT
Aerospace/Communications Division of ITT (“ITT”),
had knowingly presented false claims to the Army, in
connection with a defense contract. The Army’s contract
with ITT concerned the design, development, testing,
and production of a new military radio system to be used
by Army troops, the Single Channel Ground and
Airborne Radio System (“SINCGARS). On September
27, 1995, this court entered an order granting summary
judgment in favor of ITT. In this order, this court held
that Millner’s claims under the False Claims Act were
unsupported by admissible evidence. On October 10,
1995, Millner filed a 96-page motion to reconsider. This
motion is essentially a review of all of Millner’s original

arguments.

App. 62

Millner, a former employee of ITT, claims to
have invented an improvement to the SINCGARS
mounting tray that, if implemented, would increase the
life-span of the SINCGARS system thereby saving the
Army lots of money. Millner claims that ITT refused to
disclose the suggested improvement to the Army until
after performing expensive studies. However, the
evidence presented to this court in support of ITT’s
motion for summary judgment conclusively showed that
ITT informed the Army of Millner’s suggested
improvement and the Army ultimately rejected the
improvement.

Millner, in his motion to reconsider, repeats his
arguments that the shock isolators on the SINCGARS
mounting tray are defective and that his invention was a
proven solution to the problem. Millner, however,
continues to ignore the evidence that the Army simply
decided not to implement Millner’s suggested
improvement, which had not been fully tested and, thus,
the improvement never became part of the contract with
ITT.

As ITT points out, Millner has simply refused to
believe that the Army, after considering the field
performance of the SINCGA.RS system, decided that it
did not need to improve the shock isolators on the
mounting tray. Millner also continues to argue that the
Army should have implemented his suggested

improvement in order to save money, and possibly lives.

—

erp ee eS

App. 63

However, Millner’s argument is irrelevant to the issues
in this case. ITT could not have forced the improvement
on the Army, even if ITT had believed the suggested
improvement was necessary to the performance of the
mounting tray. It is clear in this case that ITT and the
Army discussed implementing Millner’s suggested
improvement, but the improvement simply never became
part of the contact. Consequently, this court repeats its
earlier holding that Millner has not presented admissible
evidence that ITT submitted a false claim to the Army.

Accordingly, Millners motion to reconsider is
hereby DENIED.

Enter: November 3, 1995.

”s/ William C. Lee”
William C. Lee, Judge
United States District Court

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1750%3A1. Public record. Not legal advice.