# Petition for Writ of Certiorari — Grant v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 888

## Text

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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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 .........

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Page

1]

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0255%3A1. Public record. Not legal advice.