Petition for Writ of Certiorari — Grant v. United States

Supreme Court, U.S.

1 ) FILED

—~ 02 289 MAY 1 62002

No. 01- OFPICE OF THE CLERK

IN THE

Supreme Court of the United States

ROY W. GRANT,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES Court OF APPEALS

FOR THE FEDERAL CIRCUIT

ne

PETITION FOR A WRIT OF CERTIORARI

ee wpm on

PETER J. BABOS

Law OFFICES OF PETER J. BABOS

Attorneys for Petitioner

315 South Beverly Drive

Suite 501

Beverly Hills, CA 90212

(310) 272-0044

173778 ; g

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

1

QUESTION PRESENTED

The statute of limitations in a patent infringement case

against the United States government is governed by

28 U.S.C. § 2501. Equitable principles permit a tolling of

the period of limitations where it is determined that there

was a “legal disability” preventing the patent holder from

filing suit earlier. The disability must be shown to have

occurred within the original statute of limitations period, must

be continuing in nature, and is then tolled up until three years

after the disability ceases.

The question presented is whether one’s undisputed

mental illness, which also results in a permanent and

continuing medical retirement disability, constitutes a legal

disability for purposes of tolling the statute of limitations

in a patent infringement lawsuit against the United States

government.

il

TABLE OF CONTENTS

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Stntomsent Of TWHHSGRONIOM. ow. ck cc ccc cc wess

Statutory Provisions Involved .................

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Reasons for Granting the Writ .................

I.

II.

Ii.

The Decision Below Leaves Uncertain The

Meaning Of Legal Disability For Purposes Of

Determining A Tolling Of The Statute Of

EAE ok ov aE ee ees

The Decision Below Leaves Uncertain The Kind

Of Evidence Necessary To Support A Finding

OF LE SN oi si nov ake aban csenenes

Certiorari Is Warranted Because The Decision

Below Conflicts With Prior Decisions Of This

Court Relating To Equitable Tolling .........

COREE, ion vk veo dicaG teen

Page

1]

- iil

TABLE OF CITED AUTHORITIES

Page

Cases:

Adams vy. United States, 46 Fed. C1. 834 (2000) ...6, 8,9

Bennett v. United States, 36 Fed. Cl. 111 (1996) .. passim

Goewey v. United States, 612 F.2d 539 (Ct. Cl. 1979)

AR eet ee Pe Re 7,9, 11

Irwin v. Department of Veteran Affairs, 498 U.S. 89

Cs ich d da sdadessnnsivesviveseesetees 7,13

Leeth v. United States, 22 Cl. Ct. 467 i995) ....- 9

Powers v. United States, 15 Cl. Ct. 702 (1988) .... 8.9

United States v. Beggerly, 524 U.S. 38 (1998) .... 13

United States v. Brockamp, 519 U.S. 347 (1997) .. 14

United States Constitution:

Fifth Amendment ..........--seceeceeeeeecee 15

Statutes:

PRUE. §UTSH ww. ccc ese nsec e ce eneeceses 1

ot lo 2 eS ot l

LS edt >) Sn ee ch cae passim

iv

Cited Authorities

Page

Other Authorities:

Black’s Law Dictionary, 7" Edition ............. ll

Newsweek, “The Mystery of Schizophrenia’’,

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Vv

TABLE OFAPPENDICES

Page

Appendix A — Decision And Judgment Of The

United States Court Of Appeals For The Federal

Circuit Dated February 15, 2002 .......------ la

Appendix B — Opinion Of The United States Court

Of Federal Claims Dated And Filed February 2,

4a

Peres err ee eee

|

Petitioner respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of —

for the Federal Circuit in this case.

OPINIONS BELOW

The district court’s opinion (per Damich, E.J.), dated

February 2, 2001, granting respondent’s summary judgment

motion is not published (“Pet. App.” 4a-18a). The court of

appeals decision, (per curiam), reaffirming the district court’s

opinion, was issued as a mandate and is not otherwise

published (Pet. App. la-3a).

STATEMENT OF JURISDICTION

The court of appeals entered its opinion on February 15,

2002 and issued its mandate on April 9, 2002. Petitioner

invokes this Court’s jurisdiction under 28 U.S.C. § 1254.

STATUTORY PROVISIONS INVOLVED

The statutory basis for jurisdiction of petitioner’s claim

for patent infringement in the United States Court of Federal

Claims is under Title 28 U.S.C. § 1498. The statutory basis

for tolling of the statute of limitations is under 28 U.S.C.

§ 2501.

STATEMENT OF THE CASE

Petitioner, Roy W. Grant, is a retired civil service

employee of the United States Air Force on permanent

disability under Medical Disability Retirement from the civil

service in July of 1985. In January of 1976, petitioner, during

active duty with the air force, devised and created a round

2

perforated disc object to be attached to the lens of a camera

identified as a flame filter. The device is used to filter out light

intensities during the course of the photographic process

(i.e. while taking a picture or pictures). It is useful to more

effectively track missile and aircraft ignition and flight, and

reduce the amount of intense light that may cause blindness

and other injury to the natural eye of photographers taking

pictures and tracking such aircraft.

Petitioner received an exclusive patent on his invention from

the U.S. Patent Office on December 16, 1980. Since that time

he pursued monetary recovery from the air force based on the-

continuing use by the U.S. military of his patented invention.

However, petitioner has never known of the actual dates of

manufacture and use of any flame filters since the late 1970’s,

and certainly has had no such knowledge of this information

since the time he received his patent from the government.

Petitioner was put through many changes in work

assignments and persevered aggravating work conditions

beginning after 1980. All of these events and circumstances

finally led to plaintiff's breakdown and permanent disability

leave from the air force in March of 1985. To this day, petitioner

has continued to suffer significant mental and psychological

distress emanating from his employ with the air force.

His preeminent mental condition is, and has been, based on

symptoms of paranoia and schizophrenia. All of petitioner’s

medical conditions, symptoms and diagnoses are supported by

certain medical reports and opinions of his doctors while still

serving in the air force (which include Dr. Charles Wilson and

Dr. Ronald Shlensky), as well as his current psychiatrist for the

past several years, Dr. Binna Chahal. Pet. App. 13a n.6. All of

the reports and declarations submitted by these doctors and

introduced as evidence in the summary judgment motion were

uncontested and unrefuted.

3

1. This case was originally filed in the United States Court

of Federal Claims on May 19, 1997. Following the close of

limited discovery proceedings, respondent brought a motion for

summary judgment based on the statute of limitations defense

set forth in 28 U.S.C. § 2501. Respondent asserted that petitioner

failed to file his action within six (6) years from the time his

cause of action accrued, and that the court lacked jurisdiction

under 28 U.S.C. § 2501.

Petitioner filed his opposition to the summary judgment

motion asserting two primary arguments. First, there existed a

genuine issue of material fact as to when the subject flame filters

had actually been manufactured (i.e. establishing the date or

dates that petitioner’s claim of patent infringement accrued),

and that the Government failed to meet its burden of proof.

Second, petitioner argued that, in any event, the statute of

limitations had been tolled due to petitioner’s history of mental

and psychological distress since in or about 1985 constituting

legal disability under 28 U.S.C. § 2501. Since petitioner’s

disability is continuing to this day, his patent infringement action

was timely filed. Petitioner would have three (3) years from the

date of termination of his mental illness disability to bring suit.

It is the legal disability argument that remains the subject of

this petition for writ of certiorari.

2. Respondent’s summary judgment motion was decided

without oral argument, although petitioner’s counsel requested

such. The claims court rendered its decision on February 2, 2001

granting summary judgment and dismissing petitioner’s

complaint for patent infringement, with prejudice.

The claims court held that it could not conclude from

the evidence presented that petitioner was legally disabled

within the meaning of Section 2501. Pet. App. 13a. The court

eee

4

further stated that it does not question the legitimacy of

petitioner’s unfortunate psychological condition — only that

petitioner has however failed to show how his condition

prevented him from comprehending or pursuing his legal

rights. Pet. App. — bottom of 13a and top of 14a.

The effect however of the claims court decision is that it

most definitely puts into question the legitimacy of

petitioner’s disability. It has made a judgment as to the

worthiness of petitioner’s medical disability. It is this

subjective reasoning of an ambiguous legal principle (“legal

disability”) that warrants a more comprehensive and universal

mandate that should emanate from this Court.

3. Petitioner appealed the decision of the claims court

to the United States Court of Appeals for the Federal Circuit

on April 2, 2001. The circuit court rendered its decision on

February 15, 2002 affirming the claims court decision.

The circuit court decision summarily adhered to the

analysis and conclusions by the claims court. The decision

merely held that petitioner had the responsibility to offer

sufficient evidence to support a judgment in his favor, and

that the evidence of the kind of disability required to toll the

statute of limitations was insufficient. Pet. App. 2a.

By its summary disposition and reliance on the claims

court decision, the circuit court decision leaves in doubt what

type and extent of evidence is sufficient in order to determine

a finding of legal disability. As both decisions were also left

unpublished, these issues remain even more problematic.

4. This petition for a writ of certiorari followed.

5

REASONS FOR GRANTING THE WRIT

The petition should be granted for three reasons. First,

the Federal Circuit’s decision leaves unclear as to what types

of mental illness, or other psychological disorders, constitute

a legal disability. Review should be granted to clarify the

definition of legal disability, as well as establish a minimum

standard or criteria warranting a tolling of the period of

limitations due to the particular disability. This redefinition

is of great importance in light of the various categories of

conflicting medical and psychological diagnoses and

disorders that exist.

Which types or categories of psychological and mental

disorders should constitute a “legal disability” so as to

equitably toll the applicable statute of limitations?

The Federal Circuit’s holding that Petitioner’s evidence of

his disability was not sufficient evidence of the kind of

disability required to toll the statute of limitations period of

28 U.S.C. § 2501 leaves open the question of what does and

what should constitute a “legal disability?” The Federal

Circuit is the only circuit to have defined legal disability in

cases where a plaintiff has sought redress against the United

States government since all such claims must be brought

initially in the United States Court of Federal Claims.

There are just a handful of cases that have been decided

by the claims court in the past specifically addressing the

issue of one’s legal disability and whether it warrants a tolling

of the applicable period of limitations. These cases are all

well distinguishable on their own facts. Yet none of these

cases address the legitimacy of one’s special or particular

mental illness, and how that illness has prevented him or her

from maintaining any level of competence to adequately

6

pursue his or her legal rights while suffering under the

disability. Review and guidance by this Court would promote

much needed uniformity in clarifying what types and

circumstances of mental illness warrant the tolling of the

period of limitations.

Second, the Federal Circuit’s holding leaves ambiguous

and uncertain the nature and extent of evidence of the

particular recognized legal disability that is required to

toll the statute of limitations period of 28 U.S.C. § 2501.

The Federal Circuit held that petitioner’s evidence of his

disability during the pre-filing period was not evidence of

the kind of disability required to toll the six year statute of

limitations period of 28 U.S.C. § 2501. What constitutes

sufficient evidence in order for the court to make a factual

finding of legal disability?

Is it direct scientific and medical proof? Are unopposed

and undisputed affidavits and declarations from medical

doctors and psychiatrists sufficient? Should there be more?

Must there be more?

Petitioner has proffered more evidence than others in

previous claims court decisions relating to his mental illness.

In fact, in prior cases such as Bennett and Adams, infra, the

record was replete with any evidence as to the claimant’s

disability.

Third, the Federal Circuit’s decision conflicts with

holdings of this Court relating to traditional principles of

equitable tolling in actions brought against the United

States government. The issue is, once determined, is a legal

disability an instance of equitable tolling, or, can principles

of equitable tolling be further considered by the courts in

7

deciding whether to toll the applicable period of limitations.

The principle of “legal disability” may affect or bear upon

other traditional notions of equitable tolling under /rwin v.

Department of Veteran Affairs, 498 U.S. 89 (1990) and its

progeny.

I. THE DECISION BELOW LEAVES UNCERTAIN

_ THE MEANING OF LEGAL DISABILITY FOR

PURPOSES OF DETERMINING A TOLLING OF

THE STATUTE OF LIMITATIONS

The circuit court’s decision leaves unanswered the

question of what constitutes “legal disability?” The history

of decisions by the claims court in the past has demonstrated

a careful analysis of various claims of legal disability.

The claims court acknowledged this as well in its decision

in this case. Pet. App. 12a. While there has been an analysis

and factual distinctions made on a case by case method,

the closest the courts have come to define the concept of

“legal disability” came in the cases of Goewey v. United

States, 612 F.2d 539 (Ct. Cl. 1979), and Bennett v. United

States, 36 Fed. Cl. 111 (1996).

The claims court in Goewey acknowledged on its own

that the claims court up until that time had not actually

defined the term “legal disability.” Jd. at 544. The court

continued to give various examples of how certain disabilities

may have an affect on the statute of limitations, but then

concluded that “[vJariations proceed from this general

definition, all of whose elements need not be present in each

case.” Id. at 545.

8

The claims court in Bennett, some 17 years later,

established the presumption of sanity and competence vis-a-

vis insanity and incompetence. It held that the phrase “iegal

disability” was intended to replace the prior archaic

terminology in the statute which defined certain classes of

persons eligible for tolling. The term persons with a “legal

disability’ was hence born. However, the revised statute was

not meant to change original tolling principles under federal

law.

Legal disability must be determined on a case by case

basis. In Powers v. United States, 15 Cl. Ct. 702 (1988), the

court held that the statute of limitations were tolled where a

former army veteran was declared incompetent even though

during the period of his incompetence it was determined that

he was able to initiate several lawsuits relating to his military

retirement pay.

In Adams v. United States, 46 Fed. Cl. 834 (2000), a

veteran brought suit against the government asserting a Fifth

Amendment takings claim. The government moved to dismiss

based on the same statute of limitations, 28 U.S.C. § 2501.

The court ruled against plaintiff based on his failure to

properly establish any grounds constituting a legal disability.

In fact, plaintiff had failed to offer any evidence at all with

respect to a disability.

In. granting the government’s motion to dismiss, the

Claims Court held that:

Furthermore, plaintiff totally fails to identify any

actual physical or mental incapacitation which

would, in any reasonable way, have prevented him

from pursuing his claim. Therefore, the court is

9

constrained to hold that plaintiff was not under

any disability which would entitle him to a tolling

of the statute of limitations.

Id. at 840.

In Powers, the court cited to Goewey, supra, where in

that case the plaintiff had been under psychiatric care, but

had not been conclusively declared disabled, incompetent,

or otherwise. The court in Powers noted this distinction and

found that in its case the ordinary presumption of competence

was overcome by the presence of an adjudication of

incompetency by a court of competent jurisdiction.

Should there be a distinction between a court

adjudication of incompetence vis-a-vis conclusive and

undisputed medical reports and opinions evidencing the very

same conclusion of mental incompetence? Petitioner suggests

that there should be no such distinction, especially where

the evidence proffered by the claimant is entirely unopposed.

Where there lies no contradicting evidence, all benefit of

the doubt should go to the claimant.

However, a conflict within claims court decisions does

exist even where a state court has first declared a legal

adjudication of incompetence. Although the court in Powers

tolled the statute of limitations based on the previous court

adjudication of claimant’s incompetence, the reverse occurred

in the case of Leeth v. United States, 22 Cl. Ct. 467, 484

(1991) where tolling was not permitted although there was a

prior state court determination of incompetence. There

remains conflict and inconsistency as to how the claims court

treats a prior adjudication of competence as the barometer

for determining whether one suffers from a legal disability.

10

In light of these prior inconsistent decisions by the claims

court, this Court’s review is required.

Petitioner suffers from paranoia and schizophrenia.

These are mental illnesses. The diagnoses and affects of these

mental conditions were fully elaborated upon by petitioner’s

past and present doctors and acknowledged by the claims

court in its decision. Pet. App. 13a. Yet, the claims court

further stated it could not conclude from this evidence that

petitioner was legally disabled within the meaning of Section

2501. It remained merely sympathetic to petitioner’s

situation. Pet App. 13a. If the courts are going to judge what

degree and extent of mental illness impairs one’s ability to

comprehend his legal rights, a uniform approach and

guideline should issue from this Court.

Although it has been a long recognized illness, there has

been much recent public news and notoriety concerning the

mental illness of schizophrenia. This has been marked by

the recent Academy Award winning movie, “A Beautiful

Mind” , the recent child drowning murders of mother Andrea

Yates, a recent cover story and article entitled “The Mystery

of Schizophrenia” appearing in the March 11, 2002 edition

of Newsweek magazine, as well as others. Schizophrenia is

a disease. Psychosis, the inability to distinguish reality from

imagination, lies at the core of schizophrenia. Some 2.5

million Americans have the disease. Petitioner suffers from

this mental illness through today, and has been since in or

about the early part of 1985. Moreover, it is a mental illness

that arose and was caused by his very employment with the

United States Air Force, the very same party that has infringed

on his patent now for over 20 years without compensating

him.

11

The term “mental illness” is defined in Black’s Law

Dictionary, 7" Edition, as a disorder in thought or mood so

substantial that it impairs judgment, behavior, perceptions

of reality, or the ability to cope with the ordinary demands

of life. It is this impairment that has prevented petitioner

from being able to pursue his claim against the government

in a proper manner.

The claims court relied heavily on the decisions in

Goewey and Bennett which held that a disability must be a

serious impediment or handicap so as to preclude the

individual from comprehending its legal rights and from

comprehending the necessity of prosecuting those rights. Pet.

App. bottom 13a, top of 14a. The claims court further stated

that a legal disability does not include all kinds of mental

conditions. Pet. App. 14a.

The issue then is: What types of mental illnesses constitute

a legal disability? If a recognized mental illness such as

schizophrenia renders one incapable of comprehending his legal

rights, and prosecuting those rights, should. not that condition

warrant a finding of legal disability? Review by this Court is

necessary to resolve these issues and prior inconsistent holdings

by the claims court.

Il. THE DECISION BELOW LEAVES UNCERTAIN

THE KIND OF EVIDENCE NECESSARY TO

SUPPORT A FINDING OF LEGAL DISABILITY

Since the circuit court’s decision relies so heavily on

the conclusions and analysis of the lower claims court

decision, the reasoning of that court must be fully considered.

The claims court held that petitioner had “failed to show how

his condition prevented him from comprehending or pursuing

his legal rights.” Pet. App. 14a.

12

However, both the claims court and circuit court conclude

that petitioner did not furnish sufficient evidence of the kind of

evidence required to establish a legal disability. Pet App. 13a,

2a. What then is the minimum required evidence necessary to

support a finding of legal disability?

Petitioner has affirmatively demonstrated through

uncontroverted direct evidence that he has suffered, and

continues to suffer from significant mental and psychological

distress constituting both permanent and legal disability.

The record and facts are clear from his past and present doctors.

This was even acknowledged by the claims court in its decision.

Pet. App. 13a, 14a.

This is medical or scientific proof of one’s mental state and

how that mental condition affects his abilities to function and

behave. The unopposed and undisputed psychiatric evidence

offered by petitioner stated that he was unable to manage his

legal affairs, that he suffered from paranoia, schizophrenia with

psychotic episodes or psychotic features. Dr. Chahal stated that

petitioner could not function in a way to handle his legal affairs.

This was acknowledged by the claims court. Pet. App. 13a.

Yet, the claims court then summarily dismisses this undisputed

expert opinion. The quandary is then what would have satisfied

the court in being able to determine whether petitioner’s mental

illness was so grave as to make it impossible for him to

comprehend or pursue his legal rights?

While the claims court relied on the holding in Bennett v.

United States, 36 Fed. Cl. 111 (1996), to reject petitioner’s

claim of legal disability, that case is distinguishable on the facts.

In that case, the claims court did not have the benefit of knowing

or being able to ascertain Bennett’s medical condition. The briefs

submitted by plaintiff failed to state the nature, cause or duration

of his medical care. Jd. at 112. Accordingly, without more, the

13

court could not find a basis for tolling the statute of limitations

based on Bennett’s legal disability. However, in concluding his

opinion, Chief Judge Smith stated the court would consider

further evidence of the nature and timing of plaintiff's

claimed disability, and allowed plaintiff 30 days to file a reply.

Id. at 113.

Due to the various types of evidence which have been

presented, or not presented as the case may be, in prior decisions,

this particular case warrants this Court’s review to help

determine what kind of evidence is sufficient to warrant a finding

of legal disability.

II]. CERTIORARI IS WARRANTED BECAUSE THE

DECISION BELOW CONFLICTS WITH PRIOR

DECISIONS OF THIS COURT RELATING TO

EQUITABLE TOLLING

The principle of legal disability appears to be an instance

or basis for otherwise invoking the traditional federal principle

of equitable tolling. Where a federal statute already allows for

equitable tolling within the language of the statute itself,

additional tolling of the period of limitations will not generally

be allowed. Irwin v. Department of Veteran Affairs, 498 USS.

89 (1990); United States v. Beggerly, 524 US. 38 (1998).

28 U.S.C. § 2501 provides in pertinent part that:

A petition on the claim of a person under legal

disability ... may be filed within three years after

the disability ceases.

(Citation omitted).

Thus, it appears that Congress has already provided for an

equitable tolling exception within the statute itself. However,

14

in United States v. Brockamp, 519 U.S. 347 (1997) this Court

held that mental incompetence can be grounds for tolling

the statute of limitations..

The issue has never been addressed as to whether a

finding of legal disability must stand on its own, or may other

principles of equitable tolling be additionally considered

before determining whether to extend the statute of

limitations in a given case. This Court’s review is necessary

to clarify whether traditional grounds for equitable tolling,

plus any other equitable grounds, can be considered together

with a finding of legal disability in determining whether to

toll the applicable statute of limitations.

Notwithstanding the above, traditional and fundamental

principles of fairness and substantial justice warrant that the

period of limitations should be tolled in this case, as well as

many other cases where mental illness is found to prevent

one from pursuing his or her legal rights. One of the basic

and fundamental principles emanating from our Constitution

is to assure that such inventors are protected by patent laws

and rewarded for their outstanding achievements.

On September 10, 1997, in a statement before the House

of Representatives Subcommittee on Immigration and

Claims, then Chief Judge Loren A. Smith of the United States

Court of Federal Claims stated in part:

The creation of a court to do justice responded

to a basic democratic imperative: fair dealing by

the government in disputes between the

government and the private citizen. Indeed, as

Abraham Lincoln noted: ‘It is as much the duty

of Government to render prompt justice against

15

itself, in favor of citizens, as it is to administer

the same between private individuals.’ Throughout

its history, the Court of Claims strove to give .

vitality to the spirit of Abraham Lincoln’s

admonition.

An inventor often suffers monetary damages, as well as

other harm, when there is an improper infringement upon

his patent. The law, as well as justice and reason, dictates

that in such a case, the patent holder must be rewarded or

receive just compensation. The government’s infringement

is equivalent to a taking of one’s property, and is, of course,

protected under the Fifth Amendment. This Court is asked

to enforce the protections granted by the United States

Constitution on behalf of petitioner and all other patent

holders who have been unwillingly subjected to the

circumstances enumerated above.

CONCLUSION

For the foregoing reasons, Petitioner’s application for a

writ of certiorari should be granted.

Respectfully submitted,

Peter J. BABOS

Law Orrices OF PETER J. BABOS

Attorneys for Petitioner

315 South Beverly Drive

Suite 501

Beverly Hills, CA 90212

(310) 272-0044

APPENDIX

la

APPENDIX A— DECISION AND JUDGMENT OF THE

UNITED STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT DATED FEBRUARY 15, 2002

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

01-5081

ROY W. GRANT,

F .aintiff-Appellant,

V.

UNITED STATES,

Defendant-Appellee.

DECIDED: February 15, 2002

Before MAYER, Chief Judge, BRYSON, and DYK, Circuit

Judges.

PER CURIAM.

Appellant Roy W. Grant filed this action in 1997,

contending that the government made use of technology that

was embodied in a patent belonging to him, and that pursuant

to 28 U.S.C. 1498(a) the government should be required to

compensate him for the value of the patent rights that the

government appropriated. The Court of Federal Claims

entered summary judgment for the government, holding that

Mr. Grant’s action was untimely.

2a

Appendix A

We agree with the analysis and conclusion of the Court

of Federal Claims. Because the issues Mr. Grant raises in

this court were fully addressed and disposed of by the Court

of Federal Claims in its comprehensive opinion, we affirm

the judgment of the Court of Federal Claims for the reasons.

given by that court. As the non-moving party with the burden

of proof on the issue of timeliness, see Alder Terrace, Inc. v.

United States, 161 F.3d 1372, 1377 (Fed. Cir. 1998), Mr. Grant

had the responsibility to offer sufficient evidence to support

a judgment in his favor, see Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). The trial court correctly concluded

that Mr. Grant failed to offer anything more than speculation

that some of the accused flame filters might have been

manufactured within the limitations period. In addition, the

court correctly held that Mr. Grant’s evidence of his disability

during the pre-filing period was not evidence of the kind of

disability required to toll the six-year limitations period of

28 U.S.C. § 2501. The trial court therefore correctly entered

summary judgment for the government.

_ 3a

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

01-5081

ROY W. GRANT,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee.

JUDGMENT

Appeal from the United States Court of Federal Claims

in 97-CV-350, Judge Edward J. Damich.

This CAUSE having been heard and considered, it is

ORDERED and ADJUDGED:

AFFIRMED.

ENTERED BY ORDER OF THE COURT

DATED: FEB 15 2002 s/ Jan Horbaly

Jan Horbaly, Clerk

ISSUED AS A MANDATE: April 9, 2002

4a

APPENDIX B — OPINION OF THE UNITED STATES

COURT OF FEDERAL CLAIMS

DATED AND FILED FEBRUARY 2, 2001

UNITED STATES COURT OF FEDERAL CLAIMS|

No. 97-350 C

(Filed: February 2, 2001)

ROY W. GRANT,

Plaintiff,

v.

THE UNITED STATES,

Defendant.

OPINION

I. Introduction

This matter is before the Court on Defendant’s motion

for summary judgment. Defendant contends that Plaintiff’s

patent infringement action is barred by the statute of

limitations because there was no manufacture or use of the

alleged patented invention within six years after the claim

accrued. Plaintiff argues that the statute of limitations should

be tolled because his placement on permanent disability leave

from the Air Force by virtue of his diagnosed psychological

disorders rendered him legally disabled. For the reasons

discussed herein, Defendant’s motion for summary judgment

is GRANTED. Plaintiff’s: complaint is dismissed with

prejudice.

Sa

Appendix B

II. Background

In 1976, Mr. Roy Grant (hereinafter Plaintiff) was an

employee of the Department of the Air Force at Vandenberg Air

Force Base in California. He worked as a scientific and technical

photographer. Plaintiff was issued United States Patent

4,239,327 (the ’327 patent) on December 16, 1980, from an

application filea on March 6, 1978. The °327 patent relates

generally to a device which is a round perforated disc that can

be attached to a telescopic lens on a camera. The invention,

better known as “flame filter,” allows the photographer to more

effectively track missile ignition and flight by blocking the

intense light that otherwise temporarily blinded the

photographer. See ’327 patent. The “flame filter” is useful for

photographing missile launches at night.

Plaintiff contends that the United States Government

through the Air Force manufactured and used his invention at

several military installations across the country, including but

not limited to Vandenberg Air Force Base in Los Angeles,

California. On January 16, 1981, Plaintiff filed an administrative

claim with the Air Force based on the alleged manufacture and

use of his invention. On June 29, 1981, the Air Force denied

the claim. The administrative claims was pending for 164 days.

On April 6, 1982, Plaintiff requested reconsideration of the

denial of his claim. The Air Force denied this request on April

20, 1983.

Plaintiff filed a complaint in the United States Claims Court,

predecessor of the United States Court of Federal Claims, on

August 9, 1985, based on the Air Force’s alleged use of the

claimed “flame filters.” On September 23, 1985, the action was

dismissed pursuant to RUSCC (now RCFC) 41(a)(1)(A).

SOR tee =P intron -

6a

Appendix B

According to Plaintiff, the action was terminated because he was

not “financially, legally, and mentally qualified to be able to follow

thru [sic] with [the] matter.” Plaintiff also unsuccessfully tried

to obtain compensation for the alleged use of his invention

through the offices of several Senators and Members of Congress

during the period from 1987 to about 1993. See Joint Preliminary

Status Report (September 27, 1999).

Plaintiff again fled a complaint in this court on May 19,

1997, alleging patent infringement. An amended complaint was

filed on November 19, 1999.’ The parties agreed that by October

1. See Ex. B of Pl.'s Opp’n To Def'’s Mot. For Summ. J.

2. But see Joint Status Report, Areas of Agreement 914 (March

23, 2000) where the parties stated that, “from 1987 to the present,

Mr. Grant unsuccessfully sought compensation for the Air Force’s use

of the accused flame filters through the offices of several Senators and

Members of Congress.” (emphasis added).

3. Plaintiff, appearing pro se, filed his complaint alleging patent

infringement under 28 U.S.C. § 1338(a) and (b). That section, however,

does not provide a jurisdictional basis to bring a patent infringement

action in the Court of Federal Claims. Section 1498(a) provides that:

Whenever an invention described in and covered by a patent

of the United States is used or manufactured by or for the

United States without license of the owner thereof or lawful

right to use or manufacture the same, the owner’s remedy

shall be by action against the United States in the United

States Court of Federal Claims for the recovery of his

reasonable and entire compensation for such use and

manufacture.

28 U.S.C. § 1498(a). The Court allowed Plaintiff to amend its complaint

to correct the jurisdictional defect.

7a

Appendix B

25, 1984, the Air Force had made 18 metal flame filters.

See Joint Status Report, Areas of Agreement (March 23,

2000).‘ It was also agreed that the Air Force had 15 claimed

flame filters in its inventory by October 25, 1984. Jd.

Defendant maintains that it currently has 7 claimed flame

filters. Jd. Plaintiff and Defendant do not know of any

manufacture of a claimed flame filter after 1980. Jd. Plaintiff

does not have any knowledge, information or belief as to

actual dates of manufacture of the patented invention

beginning six years before the filing of the complaint. /d.

Defendant has moved for summary judgment because it

contends that there has been no manufacture or use of the

invention within six years after the claim accrued. As such,

Defendant argues that Plaintiff’s action is time barred.

Plaintiff contends that the statute of limitations is tolled

because of Plaintiff’s legal disability. Plaintiff has been on

permanent disability from the United States Air Force since

March of 1985. Plaintiff contends that he has been

experiencing “mental anguish and psychological trauma” as

a result of “mental abuse and work related fatigue” due to

his efforts to secure compensation from the Air Force for the

‘manufacture and use of his invention. Plaintiff maintains that

his disability constitutes a “legal disability” under § 2501

and thereby tolls the running of the statute of limitations.

Thus, Plaintiff claims that his action is not time barred.

4. The Court ordered the parties to file a joint status report in

which they listed areas of agreement and disagreement. The Court

also granted Plaintiff discovery in order to investigate whether an

accused flame filter had been manufactured or first used during the

applicable statute of limitations.

8a

Appendix B

Ill. Standard

Summary judgment is appropriate when there are

no genuine issues of material fact and the moving party

is entitled to judgment as a matter of law. RCFC 56(c);

Anderson vy. Liberty Lobby, Inc., 477 U.S. 242, 247, 106

S. Ct. 2505, 2509-10 (1986); Jay v. Secretary DHHS, 998

F.2d 979 (Fed. Cir. 1993). A fact is material if it might

significantly affect the outcome of the suit under the

governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. at

248, 106 S. Ct. at 2510. The party moving for summary

judgment bears the initial burden of demonstrating the

absence of any genuine issues of material fact. Celotex Corp.

v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2553-54

(1986). The court must resolve any doubts about factual

issues in favor of the non-moving party, Chiuminatta

Concrete Concepts, Inc. v. Cardinal Indus., Inc., 145 F.3d

1303, 1307 (Fed. Cir. 1998) and draw all reasonable

inferences in its favor. See Gasser Chair Co. v. Infanti Chair

Mfg. Corp., 60 F.3d 770, 773 (Fed. Cir. 1995).

IV. Discussion

A. Claim accrual

Section 2501 provides that:

[e]very claim of which the United States Court of

Federal Claims has jurisdiction shall be barred unless

the petition is filed within six years after such claim

first accrues.

9a

Appendix B

A petition on the claim of a person under legal |

disability . . . at the time the claim accrues may be

filed within three years after the disability ceases.

28 U.S.C. § 2501. The Court of Federal Claims does not

possess jurisdiction over a patent infringement action unless

the patentee brings the action within six years of the

manufacture or first availability for use of the invention.

Starobin v. United States, 662 F.2d 747, 749 (Ct. Cl. 1981)

(“for each particular device only one right to recovery can

arise, and that right must occur upon the fast manufacture

or use by or for the government of that specific device.”

See also Regent Jack Mfg. Co. v. United States, 167 Ct. Cl.

815 (1964) (invention was first used when it was first

available for use by the government.) The unauthorized use

or manufacture by the United States Government of an

invention covered by a patent is a taking of property by

eminent domain. See Pitcairn v. United States, 547 F.2d 1106,

1114 (Ct. Cl. 1976).° The infringer takes a compulsory license"

in the patent. Jd. However, a particular device can only be

5. In Pitcairn, the Court of Claims stated:

[t]he use or manufacture by or for the Government of a

device or machine embodying any invention protected

by a United States patent, is a taking of property by

the Government under its power of eminent domain.

The nature of the property thus taken is a license in the

patent, the claimed invention of which is used or

manufactured by or for the Government, and such license

continues throughout the life of the patent, or the period

of the infringing procurement, whichever is shorter.

Pitcairn v. United States, 547 F.2d 1106, 1114 (Ct. Cl. 1976).

10a

Appendix B

taken once during its lifetime. Starobin, 662 F.2d at 750.

Thus, each subsequent use of that particular patented device

after the initial manufacture or use does not mark the accrual

of a new cause of action, thereby triggering the statute of

limitations. Jd.

Here, Plaintiff admitted in the March 23, 2000, status

report that he had no knowledge of any manufacture of a

claimed flame filter after 1980. See Joint Status Report

(March 23, 2000). The parties also agreed that by October

25, 1984, 18 flame filters had been made and the Air Force

had 15 flame filters in its inventory. Jd. Plaintiff also agreed

with Defendant’s contention that the Air Force currently has

7 claimed flame filters. Jd. Defendant contends and the Court

agrees that these are admissions by Plaintiff. Plaintiff has

offered no evidence, nor can it be reasonably inferred from

the evidence that some flame filters were manufactured after

1980. Plaintiff’s mere allegation that a flame filter could have

been manufactured after this date, without more, is not

enough to raise a genuine issue of material fact. Thus,

Plaintiff’s claim accrued at the latest in October of 1984 when

the flame filters were available for use by the government.

In order for Plaintiff to withstand Defendant’s motion

for summary judgment, Plaintiff must show that at least one

of the accused flame filters was manufactured or first used

within the statute of limitations period plus any time allotted

for tolling. Thus, the threshold matter for the Court is to

determine whether the running of the statute of limitations

is tolled.

lla

Appendix B

B. Legal Disability

To prevail under a claim of legal disability and thereby

toll the running of the statute of limitations, Plaintiff must

prove that he was legally disabled at the time his claim

accrued and that his disability was continuous from the date

that his claim accrued until three years before filing

the complaint. Goewey v. United States, 612 F.2d 539, 546

(Ct. Cl. 1979). In this case Plaintiff must show that his legal

disability was continuous from October of 1984, i.e. when

his claim accrued until at least May 19, 1994, three years

before he filed his complaint. It is Plaintiff’s burden to prove

mental incapacity in order to qualify as suffering from a legal

disability within the meaning of 28 U.S.C. § 2501. Goewey,

612 F.2d at 544; See also Coon v. United States, 30 Fed. Cl.

531, 539 (1994), aff'd 41 F.3d 1520 (Fed. Cir. 1994) (burden

of proving legal disability falls on the plaintiff, as well as

the obligation to rebut the presumption of sanity). “The law

presumes sanity and competency rather than insanity and

incompetency.” Bennett v. United States, 36 Fed. Cl. 111,

113 (1996) citing Coon, 30 Fed. Cl. at 539.

1. Plaintiff has failed to prove that he was legally

disabled at the time his claim accrued.

To toll the running of the statute of limitations, Plaintiff

must be legally disabled at the time the cause of action

accrued. See Goewey, 612 F.2d at 546. Although Plaintiff

suffers from psychological distress sufficient to place him

on permanent disability leave from the Air Force, he does

not qualify as legally disabled under § 2501. Legal disability

means a serious impediment or handicap that precludes an

12a

Appendix B

individual from comprehending its legal rights and from

comprehending the necessity of prosecuting those rights by

timely suit, or causes the individual to deliberately forego

the filing of a timely suit to vindicate those rights. Goewey,

612 F.2d at 544-45; Bennett, 36 Fed. Cl. at 113. The legal

disability provision of § 2501 is strictly construed. Jd.

As such, a legal disability does not include all kinds of mental

conditions. Goewey, 612 F.2d at 544. To toll the running of

the statute of limitations the legal disability must impair

the plaintiff’s access to court. Jd. Moreover, only serious

impediments qualify to toll the limitations period, Bennett,

36 Fed. Cl. at 113, and “hardship, inconvenience, or

ignorance cannot serve as grounds for tolling the statute.”

Coon, 30 Fed. Cl. at 539.

The Courts have carefully scrutinized claims of legal

disability. In Goewey, the court found that plaintiff was not

under a legal disability even though plaintiff was under

continual psychiatric care for 18 years, was unable to manage

his financial affairs, and suffered from obsessive compulsive

neurosis. 612 F.2d 539, 545-46. The court found that

plaintiff’s efforts in securing his release from hospitalization,

his actions in attempting to secure Veteran’s benefits for

himself and his family, and his defense of criminal

prosecutions evidenced an understanding of his legal rights.

Id. at 545. Moreover, the court noted, “[i]f plaintiff was

competent to file [an application with the Air Force Board

for the Correction of Military Records], it is difficult to

comprehend why at that time he was not also competent to

have filed suit in this court.” Jd. at 541. Likewise in Waldorf,

the court found that plaintiff was not under a legal disability

where plaintiff among other things had pursued a claim before

13a

Appendix B

the Social Security Administration. Waldorf v. United States,

8 Cl. Ct. 321, 325-26 (1985). See also Coon v. United States,

30 Fed. Cl. 531, 535 (1994) (court found plaintiff was not

under a legal disability where plaintiff pursued claims before

the social security administration and the veterans

administration.) Short of a court’s declaration of

incompetence prior to accrual of a claim, a plaintiff must

show a disability that in fact hampers access to the courts.

See Powers v. United States, 15 Cl. Ct. 702 (1988); See also

Leeth v. United States, 22 Cl. Ct. 467, 484 (1991) (“state

court’s determination of incompetency does not toll the

running of the statute of limitations contained in 28 U.S.C.

§ 2501.”)

While this Court is sympathetic to Plaintiff’s situation,

the Court cannot conclude from the evidence presented that

Plaintiff was legally disabled within the meaning of § 2501.

The evidence submitted by Plaintiff documents that he has

suffered from psychological distress, depression, and anxiety

over the past two decades and has been unable to hold

permanent employment.‘ Dr. Chahal indicated that Plaintiff's

condition has prevented him-from functioning in any work

situation and from managing his legal affairs. See Declaration

of Binna P. Chahal at 3-4. Managing one’s legal affairs iS

not the test for determining whether one is legally disabled

within the meaning of § 2501. The Court does not question

6. The Court allowed Plaintiff to provide supplemental

documentation in support of its claim of legal disability. Plaintiff

__ submitted a declaration from his psychiatrist Dr. Binna P. Chahal.

~~ Dr. Chahal has been treating Plaintiff since June of 1995. Plaintiff

also submitted prior psychiatric evaluations from previous doctor he

had seen.

14a

Appendix B

the legitimacy of Plaintiff’s unfortunate psychological

condition. Plaintiff, however, has failed to show how his

condition prevented him from comprehending or pursuing

his legal rights. On the contrary, Plaintiff’s actions indicate

otherwise. Plaintiff’s conclusory and generalized statements

in support of his claim of legal disability do not establish

that Plaintiff’s condition qualifies as a legal disability under

§ 2501.

Plaintiff’s prior infringement action is evidence that

Plaintiff was able to comprehend his legal rights. Plaintiff

contends that he has been legally disabled since about March

of 1985, when he was placed on permanent disability leave.

However, on August 9, 1985, appearing pro se, Plaintiff filed

an action alleging patent infringement against the Air Force.

Even though the suit was terminated by Plaintiff because he

was not “financially, legally, and mentally qualified” to

continue, this lack of mental fortitude and resources is not

the equivalent of an inability to understand the nature of his

legal interest. The filing of that action serves as evidence

that Plaintiff understood that his claim was based on a theory

of patent infringement and that he could secure redress in

the courts. Moreover, Plaintiff’s attempts during the period

from 1987 to 1993’ to obtain compensation through the

7. The Court notes the existence of an inconsistency with respect

to the time frame that Plaintiff sought compensation through the

offices of Senators and Members of Congress. In their Joint Status

Report of March 23, 2000, the parties indicated that Plaintiff sought

compensation from 1987 to the present. For purposes of the Court’s

analysis of Plaintiff’s legal disability claim, the actual length of the

time period is not material. The fact that Plaintiff sought such

compensation is evidence that his “disability” was not continuous

throughout the statutory period.

rn

15a

Appendix B

offices of Senators and Members of Congress further

illustrates that Plaintiff’s psychological trauma did not

preclude him from comprehending his legal rights. Lastly,

as established through admissions, Plaintiff’s claim accrued

in October of 1984, which is prior to Plaintiff’s onset of

disability in March of 1985. Thus, it appears that Plaintiff

did not suffer from his disability at the time his claim accrued.

Rather as Plaintiff indicated, his condition was directly

related to his recovery for patent infringement.* In short, his

efforts throughout the years to obtain redress for the alleged

infringement of his invention evidence a cognitive ability to

understand the nature of his legal rights. Therefore, Plaintiff

is not legally disabled within the meaning of § 2501.

2. Plaintiff’s disability was not continuous

Plaintiff must also prove that his disability was

continuous from the date the claim accrued until three years

prior to filing the complaint. Goewey, 612 F.2d at 546. Even

8. In arguing that the running of the statute of limitations should

be tolled, Plaintiff indicates:

Mr. Grant is and has been suffering from mental anguish

and psychological trauma since in or about 1985. Such

problems were the significant result of the mental abuse

and work related fatigue he was put through by the Air

Force between 1980 and 1985. These problems were also

directly related to his rightful pursuit of recovery against

the Air Force based on its continuing use and

infringement of his patented flame filter.

See Pl.'s Suppl. Mem. of P. & A. In Opp’n To Def. 's Mot. For Summ.

J. at 3-4.

16a

Appendix B

if the Court assumed that Plaintiff suffered from a legal

disability at some point during the relevant time period,

Plaintiff has failed to show that his disability was continuous

from the time his claim accrued until three years before filing

the complaint. The record provides few, if any, specifics with

regard to plaintiff’s psychological condition between 1986

and 1995 when he began treatment with his current

psychiatrist. While Plaintiff’s most recent evaluation

describes his condition as both “similar” to diagnoses made

in the early and mid 1980s and “ongoing,” this does not serve

to prove continuity in light of the sparse record. Furthermore,

a lucid interval prior to May 19, 1994, begins the running of

the statute of limitations. See Goewey, 612 F.2d at 546;

See also Waldorf v. United States, 8 Cl. Ct. 321, 325-26

(1985). Plaintiff’s earlier suit and his other efforts to obtain

compensation evidence that there were times prior to May

19, 1994, where Plaintiff did comprehend his legal rights

and acted upon his rights in a timely fashion. Thus, the

disability was not continuous. Moreover, a recurrence of a

disability does give the claimant any extra time. Goewey,

612 F.2d at 546.

C. Administrative Claim

An administrative claim may serve to toll the running of

the statute of limitations. 35 U.S.C. § 286.’ An action,

9. Section 286 provides that:

In the case of claims against the United States Government

for use of a patented invention, the period before bringing

suit, up to six years, between the date of receipt of a written

(Cont’d)

17a

Appendix B- —

however, must be brought within 12 years, even if an

administrative claim is pending for more than six years.

Bendix Corp. v. United States, 676 F.2d 606, 610-10 (Ct. Cl.

1982). Here, on January 16, 1981, Plaintiff filed an

administrative claim with the Air Force based on the alleged

manufacture and use of his invention. The claim was denied

by the Air Force on June 29, 1981. Pursuant to 35 U.S.C.

§ 286, the administrative claim serves to toll the running of

the statute of limitations for 164 days. Because Plaintiff’s

claim accrued at the latest in October of 1984, Plaintiff would

have had to file suit in this Court by October of 1994, i.e.,

six years after his claim accrued. In this case, Plaintiff filed

suit in May of 1997. Consequently, tolling the running of

the statute of limitations for 164 days does not rescue

Plaintiffs claim.

(Cont'd)

claim fox compensation by the department or agency of

the Government having authority to settle such claim, and

the date of mailing by the Government of a notice to the

claimant that his claim has been denied shall not be counted

as part of the period . . .

35 U.S.C. § 286. ©

18a

Appendix B

V. Conclusion

For the reasons discussed, it is hereby ORDERED that

Defendant’s motion for summary judgment is hereby

GRANTED. The Clerk of the Court is directed to enter

judgment in favor of Defendant and to dismiss the complaint

with prejudice.

s/ Edward J. Damich

EDWARD J. DAMICH

Judge