Petition for Writ of Certiorari — Hornback v. United States

4

ARGUMENT FOR ALLOWANCE OF THE WRIT

1. Abuse of the Power of Eminent Domain

(Question 1)

If certiorari is denied, the Government will, thereby, be

emboldened to take amy property it desires without

compensation, simply by invoking national security,

classifying that property at the level of SECRET, revoking the

owner’s security clearance, if any, and then declariug the

taking to be an intentional tort.

The Government has no authority, whatsoever, to classify

private property, and thereby, deprive a private citizen with

no personnel of facility security clearance, the right of access

to his own property.

The Invention Secrecy Act (35 U.S.C. 181-188) requires

only that the subject matter be kept“secret” as the word is

usually defined. That is a far cry from being classified

“SECRET” as defined in Section 1.1 (a2) of Executive

Order 12356. Moreover, that Act was enacted in 1952.

Therefore, in 1952, Congress did not authorize, and could not

have authorized, a Secrecy Order which mandated compliance

with Executive Order 12356 and its implementing directive,

the ISM, neither of which even existed until 1982. The

specifications in the 1987 Secrecy Order which mandated

compliance with those authorities (45a) were, therefore,

clearly illegal.

The clause in the Secrecy Order following the words “(as

required by 35 U.S.C. 181)” which reads: “and you are

further ordered ... “ (45a, emphasis added) is prima facie

evidence that such authority does not flow from that statute.

And no Court has ever held otherwise.

8

Moreover, the implementing directive for Executive Order

12356, itself, states that the Government may not classify

privately developed information unless “the Government first

acquires a proprietary interest in the information” . (40a).

Finally, such a taking without compensation violates this

Court’s own precedent. See First English Evangelical

Lutheran Church of Glendale v. County of Los Angeles, 482

U.S. 305 (1987): “But where the government’s activities have

already worked a taking of all use of property, no subsequent

action by the government can relieve it of the duty to provide

effective” .

2. Temporary Taking NOT an “Intentional” Tort

(Ouestion 2)

The Governmental act which gave rise to the tortious

“temporary” takings claim (Claim 1, 42a) was the illegal

specification in the 1987 Secrecy Order (44a) which was not

rescinded until 1999 (48a), that the patent application was “To

be protected at the Classification Level of Secret”. Since

Petitioner is a private citizen with no personnel or facility

security clearance, he could not possibly comply with that

requirement. The Government, therefore, took physical

possession of the subject matter in the patent application for

safeguarding and denied Petitioner all access to it during the

2-year period that specification was in effect.

Black’s LAW DICTIONARY defines “intentional tort” as

“a tort in which the actor is expressly or impliedly judged to

have possessed intent or purpose to injure”. Clearly, the

requirement that the subject matter in the patent application

was “To be protected at the Classification Level of Secret”,

neither expressed nor implied any intent or purpose to injure

9

Petitioner. Quite the contrary! That requirement was imposed

precisely to prevent injury to the entire nation, of which

Petitioner -- and indeed, this very Court -- is a part. That

conclusion follows from the definition of the classification

level of SECRET, as set forth in Section |.1(a)(2) of Executive

Order 12356 (emphasis added):

“Secret” shall be applied to information, the

unauthorized disclosure of which reasonably could be

expected to cause serious damage to the national

security.

3. Finding of “Intentional” Tort Unsupported

(Question 3)

In its MEMORANDUM (4a), the Ninth Circuit simply

asserted, ipse dixit, that the tortious taking was an “intentional

tort”, and therefore, the tortious takings claim was barred

pursuant to 28 U.S.C. 2680(h). If such an unsupported

finding is allowed to prevail, any Court could circumvent this

Court's precedent simply by declaring a “temporary” taking

to be an “intentional tort”. In First English Evangelical

Lutheran Church of Glendale v. County of Los Angeles,

California, 482 U.S. 305 (1987), this Court held: “But where

the government's activities have already worked a taking of

all use of property, no subsequent action by the government

can relieve it of the duty to provide compensation for the

period during which the taking was effective” .

4. Fifth Amendment Taking is NOT a Tort

(Question 4)

In its ORDER (22a, Analysis) dismissing the

COMPLAINT, District Court willfully and knowingly

misrepresented the cause of action by stating:

—

10

In this case Plaintiff brings two distinct claims against

the Defendant: (1) a “temporary” taking claim based

on Defendant’s alleged taking of Plaintiff's intellectual

property over a twelve year period; and (2) a Federal

Tort Claims Act for the “tortious acts committed

during the course of the taking which include fraud,

conspiracy to defraud, perjury, and the suppression of

evidence of those acts”. Complaint, p. 1

That statement indicates that: (i) the takings claim was not a

tortious takings claim; and (ii) that claim was not filed under

the Federal Tort Claims Act (FTCA). Both are false!

Both claims were, indeed, filed under the FTCA. And the

takings claim was not for just a “temporary” taking; it was for

a tortious “temporary” taking. (42a). That misrepresentation

of the cause of action was clearly willful in order to support

the finding (26a) that the taking was a Fifth Amendment

taking, thereby enabling the Court to invoke the doctrine of

res judicata to bar the takings claim.

However, nowhere in the COMPLAINT nor in any

subsequent brief, did Petitioner even mention the Fifth

Amendment. The Fifth Amendment states: “nor shall private

property be taken for public use without just compensation” .

(Emphasis added). But the property was NOT taken “for

public use”. Quite the contrary! /t was taken, without

compensation, precisely to prevent ANY use, except use by the

Government, by classifying that property at the level of

SECRET in violation of Executive Order 12356. (40a).

Therefore, the taking was a “tortious” taking, not a Fifth

Amendment taking.

Since a Fifth Amendment taking is not a tort, the Ninth

Circuit clearly contradicted itself by affirming District Court's

il

finding that the taking was a Fifth Amendment taking, after

holding that the “tortious” taking was an “intentional tort”.

(4a).

CONCLUSION

WHEREFORE, PETITION FOR WRIT OF

CERTIORARI should be granted.

Respectfully submitted,

Alton B. Hornback

5650 Bloch Street

San Diego, CA 92122

(858) 453-3334

la

APPENDIX A

UNITED STATES COURT OF APPEALS

} FOR THE NINTH CIRCUIT

No. 04-57057

D.C. No. CV-04-00339-WQH

[Filed July 28, 2005]

ALTON HORNBACK,

Plaintiff- Appellant,

v.

UNITED STATES OF

AMERICA,

Defendant - Appellee.

Nee ee eee eee ee”

ORDER

Before: B. FLETCHER, TROTT, and PAEZ, Circuit Judges

The panel has voted to deny the petition for panel

rehearing.

The full court has been advised of the petition for

rehearing en banc and no judge has requested a vote on

whether to rehear the matter en banc. See Fed. R. App. P. 35.

2a

The petition for panel rehearing and the petition for

rehearing en banc are denied.

No further filings will be accepted in this closed case.

3a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 04-57057

D.C. No. CV-04-00339-WQH

[Filed April 13, 2005}

ALTON HORNBACK,

Plaintiff- Appeliant,

v.

UNITED STATES OF

AMERICA,

Defendant - Appellee.

ee

MEMORANDUM’

Appeal from the United States District Court for the _

Southern District of California William Q. Hayes,

District Judge, Presiding

* This disposition is not appropriate for publication and may not be

cited to or by the courts of this circuit except as provided by Ninth

Circuit Rule 36-3.

4a

Submitted March 23, 2005

B. FLETCHER, TROTT, and PAEZ, Circuit Judges.

Alton B. Hornback appeals pro se the district court’s

dismissal of his action alleging the United States violated the

Federal Tort Claims Act (“FTCA”) in processing his patent

application. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo. O'Toole v. United States, 295 F.3d

1029, 1032 (9th Cir. 2002) (dismissals for lack of subject

matter jurisdiction under the FTCA); Stewart v. U.S.

Baneorp, 297 F.3d 953,956 (9th Cir. 2002) (dismissals based

on res judicata). We affirm.

The district court properly determined it lacked subject

matter jurisdiction over this action, because Hornback’s

claims based on the alleged fraudulent behavior defendants

exhibited and tortious taking they effected during the time his

patent application was held under a secrecy order constitute

intentional torts to which the FTCA does not apply. See

Owyhee Grazing Ass'n, Inc. v. Field, F.2d 694, 697 (9th Cir.

1981) (fraud, conspiracy, and misrepresentation amongst

tortious conduct for which the United Sta. : has not consented

to be sued, as provided by 28 U.S.C. § 2680(h)).

To the extent the district court construed Hornback’s

temporary takings claim to allege a violation of the Fifth

Amendment, this claim had been dismissed in a previous

action. Hornback v. United States, 91 Fed. Appx. 679, 681-

82 (Fed. Cir. 2004) (per curiam) (nonprecedential).

“ The panel unanimously finds this case suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

Sa

Accordingly, the district court properly dismissed the takings

claim based on res judicata. See Stewart, 297 F.3d at 956.

We find Hornback’s remaining contentions unpersuasive.

AFFIRMED.

APPENDIX C

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

Civil No.04-CV0339-WQH (Wmc)

[Filed November 9, 2005]

ALTON B. HORNBACK,

Plaintiff,

-

UNITED STATES OF

AMERICA

)

)

)

)

)

)

)

Defendants. )

)

ORDER RE: PLAINTIFF’S MOTION FOR

RECONSIDERATION [Doe. No. 14]

Plaintiff Alton B. Hornback (“Plaintiff or “Hornback”)

moves this Court for reconsideration of it’s Order of August

19, 2004 denying Plaintiff's motion for summary judgment

and granting Defendant's motion to dismiss. The Court finds

the resolution of this motion suitable for decision on the

parties’ papers without oral argument, pursuant to Local Civil

Rule 7.1(d)(1). hen

7a

I. Introduction

On February 12, 2004, Plaintiff filed a complaint for

damages pursuant to the Federal Tort Claims Act seeking

damages and compensation in the amount of $12,000,000.00.

Plaintiff's complaint arises out of his claim that Defendant

improperly imposed one or more secrecy orders on his patent

application for an invention called a “Real-Time Boresight

Error Slope Sensor.” Plaintiff claims the secrecy orders

effected a temporary taking of his intellectual property rights

for which he was not adequately compensaced. Plaintiff has

extensively litigated his claims in this and other forums. In

fact, Plaintiff has filed at least ten actions asserting various

grounds of recovery against Defendant.’

On August 19, 2004, the Court issued an order denying

Plaintiff's motion for summary judgment and granting

Defendant’s motion to dismiss. Plaintiff now moves to

reconsider that order. Plaintiff states that his motion for

reconsideration is based on (I) “the misapprehension of the

nature of the takings claim”; (2) “the premise that the

doctrines of res jadicata [sic] and stare decisis fall asunder,

where, as here, it is conclusively established that the previous

decisions were in error”; and (3) Plaintiff argues that the

denial of his motion for summary judgment was in error.

Plaintiff's Amend. Mot., p. 1.

Il. Legal Standard

Absent “highly unusual circumstances,” reconsideration

is appropriate only where (1) the court is presented with

' A detailed description of Plaintiff's prior litigation history is

included in this Court’s August 19, 2004 Order.

8a

newly-discovered evidence or (2) the court “committed clear

error or the initial decision was manifestly unjust” or (3) there

is an intervening change in controlling law. School Dist. No.

IJ, Multnomah County v. AC and S, Inc., 5 F.3d 1255, 1263

(9th Cir. 1993); United States v. James, 915 F. Supp. 1092,

1098 (S.D. Cal. 1995). “[RJeargument should not be used as

a means to argue new facts or issues that inexcusably were not

presented to the court in the matter previously decided.”

Bhatnagar v. Surrendra Overseas, Lid., 52 F.3d 1220, 1231

(3d Cir. 1995).

Ill. Discussion

Plaintiff's first asserted ground for reconsideration is that

the Court made a mi: .ake in it’s ruling because Plaintiff is not

claiming a Fifth Amendment taking, rather he is asserting a

“tortious” taking claim. As discussed in the August 19, 2004

Order, the problem for Plaintiff is that the United States has

not waived it’s sovereign immunity to claims arising out of

misrepresentation and deceit. 28 U.S.C. § 2680(h). Plaintiff

alleges that Defendant committed severa! acts constituting

fraud during the pendency of the secrecy order on Plaintiff's

patent application. Therefore, to the extent Plaintiff is alleging

a tortious taking those allegations fall squarely within the

prohibition of 28 U.S.C. § 2680(h). Therefore, Plaintiff's

tortious takings claims fail.

Plaintiff's second argument in support of his motion for

reconsideration is that this Court erred by improperly

applying the doctrine of res judicata to bar his temporary

takings claim. Plaintiff argues that the Federal Circuit

decision’ this Court relied on in barring the temporary takings

? Plaintiff pursued a temporary taking claim before the Court of

Federal Claims in Case No. 02-1915 C. There, the Court of

9a

claim was not entitled to res judicata effect. According to

Plaintiff, the Federal Circuit’s decision improperly determined

the accrual date for the statute of limitations on his temporary

taking claim. The Court concludes, however, that Plaintiff's

temporary taking claim continues to be barred by res judicata

principles.

Federal Claims held that his claim was barred by res judicata and

the Federal Circuit affirmed. Hornback, 56 Fed. CI. at 363, aff'd,

No. 03-5099 (Fed. Cir. Jan. 13, 2004). The Federal Circuit held:

First, Hornback asserts mat the doctrine of res judicata is

inapplicable because the Court of Federal Claims did not

previously address his temporary takings claim on the

merits. He distinguishes his claim in the present case from

his claim in the earlier Case No. 99-38 C on the basis that

the earlier claim was filed while the secrecy order was in

effect and therefore alleged a permanent taking, whereas

the present claim was filed after the secrecy order was

rescinded and therefore alleged only a temporary taking...

Recently, we affirmed the Court of Federal Claims’

dismissal of another of Hornback’s takings claims on the

ground that Hornback was collaterally estopped from

arguing that his filing was timely. [citations omitted] In that

case, we specifically addressed Hornback’s allegation that

~““for 13 years, [from 1987 when the secrecy order was

imposed until 2000 when the patent issued] Plaintiff was

deprived of all use of his property.” [citations omitted].

Thus, Hornback has previously, raised, and we have

previously considered the same temporary takings theory

that he now asserts in the present case. That claim was

adjudicated on the merits when we held that it was

untimely, based on Hornback’s previous litigation of the

statute-of-limitations issue.

Hornback, No. 03-5099 (Fed. Cir. Jan. 13, 2004).

10a

Res judicata, or claim preclusion, precludes the

relitigation of a claim previously tried and decided. Clarke.

Bear Stearns & Co., 966 F.2d 1318, 1320 (1992). Any basis

or theory of recovery that a litigant could have asserted in the

previous litigation, is barred by res judicata if the prior suit

was between the same parties on the same cause of action. /d;

Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713

(9th Cir. 2001). “Res judicata applies when there is: (1) an

identity of claims; (2) a final judgment on the merits; and (3)

identity or privity between the parties.” Stuart v. U.S.

Bancorp, 297 F.3d 953, 956 (9th Cir. 2002). Courts in the

Ninth Circuit look to the following factors to determine if a

cause of action is the same as brought in a previous litigation:

(1) whether rights or interests established in the prior

judgment would be destroyed or impaired by prosecution of

the second action; (2) whether substantially the same evidence

is presented in the two actions; (3) whether the two suits

involve infringement of the same right; and (4) whether the

two suits arise out of the same transactional nucleus of facts.

Clark, 966 F.2d at 1320.

The Court reaffirms it’s conclusion that this case presents

the same causes of action as Plaintiffs previous cases. The

factors supporting that conclusion include: (1) the rights of the

parties established in the prior cases would be substantially

impaired by prosecution of this case, (2) the same evidence is

presented in this action as in Plaintiff's prior suits against

Defendant, (3) the suits involve the infringement of the same

right - the alleged taking, whether permanent or temporary of

Plaintiff's intellectual property rights, and (4) the suits arise

out of the same transactionai nucleus of facts (for instance, the

classification of the patent application). Therefore, the Court

finds that the doctrine of res judicata bars the relitigation of

Plaintiff's takings claim.

lla

Finally, Plaintiff requests reconsideration of this Court’s

order denying his motion for summary judgment. The Court

concludes that Plaintiff fails to state grounds sufficient to

justify reconsideration of that order. Accordingly, the Court

DENIES Plaintiff's motion for reconsideration.

IV. Conclusion

Having reviewed the papers submitted and the relevant

law, IT IS HEREBY ORDERED that Plaintiff's motion for

reconsideration [doc. no. 14] is DENIED.

IT IS SO ORDERED.

/s/ Hon. William QO. Hayes

HON. WILLIAM Q. HAYES

UNITED STATES DISTRICT JUDGE

12a

APPENDIX D

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

Civil No.04-CV0339-WQH (Wmc)

[Filed August 19, 2005]

ALTON B. HORNBACK,

Plaintiff,

Vv.

UNITED STATES OF

AMERICA

)

)

)

)

)

)

)

Defendants. he )

)

ORDER RE: PLAINTIFF’S MOTION FOR

SUMMARY JUDGMENT AND DEFENDANT’S

MOTION TO DISMISS [Doc. No.’s 4 & 8]

Plaintiff Alton B. Hornback (“Plaintiff” or “Hornback”)

moves this Court for summary judgment. In addition,

Defendant United States of America (“Defendant” or

“Government”) moves to dismiss Plaintiff's complaint. The

Court finds the resolution of both of these motions suitable for

decision on the parties’ papers without oral argument,

pursuant to Local Civil Rule 7.1(d)(1)

13a

I. INTRODUCTION/FACTUAL BACKGROUND!

A. Plaintiff's Complaint

On February 12, 2004, Plaintiff filed a complaint for

damages pursuant to the Federal Tort Claims Act seeking

damages and compensation in the amount of $12,000,000.00.

Plaintiff's complaint alleges that the Defendant improperly

imposed one or more secrecy orders on his patent application

for an invention called a “Real-Time Boresight Error Slope

Sensor.” Plaintiff claims that the secrecy orders effectively

served as a temporary taking of his intellectual property

rights.

According to Plaintiff, his invention is designed to,

(I) to prevent parasitic oscillations in an ABM missile

such as the Advanced Patriot PAC-3), operating in the

altitude/velocity regime encountered in an anti-ballistic

missile intercept; (ii) to permit wide bandwith HARM

__ type seekers to be used against emissions from moving

targets, including stealth aircraft; and (iii) to improve

the cost/effectiveness of missiles which use either a

radar, or an infra-red, terminal homing seeker.

Complaint, p. 2.

Plaintiff alleges that on April 25, 1986, he filed a patent

application with the Patent and Trademark Office (“PTO”) for

' The following factual background is derived from Plaintiff's

complaint and the parties’ respective papers submitted in

connection with Plaintiff's motion for summary judgment and

Defendant’s motion to dismiss.

l4da

his invention. Plaintiff further alleges that on April 16, 1987,

the Air Force classified his invention as Secret, pursuant to

Executive Order 12356. Complaint, p. 2. Plaintiff alleges that

the Government did not have the authority to classify his

patent application as “Secret.” /d. at p. 2. Thereafter, on

August 24, 1987, according to Plaintiff, the PTO imposed a

Secrecy Order on his application. /d. at p. 3. Plaintiff also

alleges that on September 17, 1987, the PTO issued a “notice

of allowability” stating that Plaintiff's patent application was

in condition for allowance but that in view of the secrecy

order the application would be withheld from issue during

such time as the national interest requires. Jd. On April 2 I,

1999, the Secrecy Order was rescinded and on June 27, 2000,

the PTO issued Plaintiff's patent, /d. Plaintiff alleges that the

Government’s actions constitute a tortious taking, fraud,

conspiracy, perjury, and suppression of evidence. /d. pp. 3-4.

Plaintiff alleges that the Government could have realized

a $120 million savings by utilizing his invention and that he

is entitled to $12 million dollars for the temporary taking, /d.

at p. 6. However, Plaintiff's complaint does not allege that

Defendant has actually utilized his invention on it’s ABM

missiles without compensating him.

B. Plaintiff's Previous Litigation History

This case is not the first time Plaintiff has litigated his

claims against the Government. Plaintiff has filed similar

cases in this district and before the Court of Federal Claims

over the last fifteen years.

15a

1. Southern District of California Cases

- a. Hornback vy. United States, Civil Action No. 89-

1914-R(M) (S.D. Cal. Oct. 2, 1992) aff’d, 16

F.3d 422 (Fed. Cir. 1993).”

Plaintiff first brought suit on his claims for damages

resulting from the classification of his patent application and

the imposition of a secrecy order on that application in the

Southern District of California in 1989. Plaintiff brought suit

under 35 U.S.C. § 183 alleging damages caused by the

imposition of the secrecy order and for the “severe and total

damage defined by the eminent domain taking” of [Plaintiffs]

property.” The district court granted summary judgment in

favor of the Government. See October 2, 1992 Order,

attached to Defendant’s Motion to Dismiss. The district court

found that Plaintiff had not alleged any actual damages or

“concrete evidence of damages” as required by Section 183.

In addition, the district court found that Plaintiff could not

state a Fifth Amendment taking claim because Section 183 is

an exclusive remedy for parties in Plaintiff's position, /d. at

5-6. On December 22, 1993, the Federal Circuit affirmed the

district court’s judgment in an unpublished opinion.

b. Hornbaek v. United States, No. 94C V0952-IEG

(S.D. Cal.), aff'd, 91 F.3d 152 (9 Cir. 1996)

(unpublished)’

? The Federal Circuit’s opinion was non-precedential, however,

under Federal Circuit rules a non-precedential opinion may be used

for claim or issue preclusion. Federal Circuit Rule 47.6(b).

> While United States Court of Appeals for the Ninth Circuit

(“Ninth Circuit”) provides that its unpublished opinions are not

binding precedent, they may be used for res judicata or collateral

l6a

In the second case brought by Plaintiff in the Southern

District of California, Plaintiff again alleged that the

Government took his invention by classifying his invention as

secret and placing a secrecy order on his patent application,

requiring compensation under the Fifth Amendment.

Hornback v. United States, 91 F.3d 152 (9th Cir.

1996)(unpublished). The district court dismissed Plaintiff's

complaint for lack of subject matter jurisdiction under 28

U.S.C. '§ 1346(a)(2) because Plaintiff alleged just

compensation greater than $10,000.00. Jd. The district court

also refused to transfer Plaintiffs case to the Court of Federal

Claims because the six-year statute of limitations had run. /d.

The Ninth Circuit affirmed the judgment of the district court

dismissing Plaintiff's complaint. The Ninth Circuit

specifically affirmed the district court’s conclusion that (I)

because Plaintiff sought more than $10,000 in monetary relief

the district court lacked subject matter jurisdiction and (2)

Plaintiff's Fifth Amendment takings claim accrued no later

than April 1987 when the Air Force notified him that his

invention had been classified as secret and the statute of

limitations had therefore run on his claim, /d. .

2. Court of Federal Claims Litigation

Plaintiff has also filed a series of cases in the Court of

Federal Claims: Hornback v. United States, No. 96-121 C;

Hornback v. United States, No. 96-647 C; Hornback v.

United States, No. 98-58 C; Hornback v. United States, No.

99-38 C; Hornback v. United States, No. 99-168 C; Hornback

v. United States, 00-374 C; Hornbaek v. United States, 01-99

C; Hornback v. United States, 01-136 C; Hornback v. United

estoppel purposes. Ninth Circuit Rule 36-3.

17a

States, No. 02-1915 C; Hornback v. United States, No. 03-

2063 C.

In five prior cases, two of which were consolidated in the

Court of Federal Claims, Plaintiff asserted that he was entitled

to compensation for the classification of information in his

patent application and the imposition of a secrecy order on

that application under a variety of theories, including: Fifth

Amendment taking, 35 U.S.C. § 183, and improprieties

related to the classification of his patent application. Hornback

v. United States, No. 99-168 C (consolidated with 00-374 C

(Fed. Cl. May 13, 2003); Hornback v. United States, No. 56

Fed. Cl. 462 (Fed. CI. 2003) (No. 01-99 C); Hornback v.

United States, 56 Fed. C1. 359 (Fed. CI. 2003) (No. 021915

C); Hornback v. United States, 52 Fed. CI. 374 (Fed. Cl.

2002) (No. 99-38 C). These cases all resulted in dismissal of

Plaintiffs claims with prejudice by the Court of Federal

Claims and all of these judgments were affirmed on appeal.

a. Hornback v. United States, 52 Fed. Cl. 374 (Fed.

CL 2002) (No. 99-38 C), aff'd, No. 02-5111,

2002 WL 31796654 (Ted. Cir. Dec 4, 2002)

(non-precedential)

In this case Plaintiff alleged a Fifth Amendment taking of

his property when the Government imposed a security

classification on his patent application, withheld the patent

from issue, willfully took physical possession of that

application and its subject matter, and denied him the fight to

possess a copy of his patent application when his security

clearance was revoked upon retirement. Complaini, Case No.

99-38 C; Hornback, 52 Fed. CI. at 375. The Court of Federal

Claims dismissed Plaintiff's complaint holding that Plaintiff's

taking claim was barred by the six-year statute of limitations,

id. at 383, and was also barred by res judicata in light of the

18a

two previous cases filed by Plaintiff in the Southern District

of California that were litigated to decisions on the merits,/d,

at 386.

The Court of Federal Claims also held that Plaintiff was

barred from relitigating the issue of whether his takings claim

was barred by the statute of limitations. Jd. at 387. Further,

the court held that Plaintiff was barred from relitigating the

issue of whether 35 U.S.C. § 183 provides the exclusive

remedy for damage sustained by the imposition of a secrecy

order on a patent application. /d. at 389. The Court of Federal

Claims decision was affirmed by the Federal Circuit on

appeal. Hornback, 2002 WL 31796654.

b. Hornback vy. United States, No. 99-168 C

consolidated with 00-274 C (Fed. Cl. May 13,

2004) rr

Plaintiff brought these two cases under theories of

recovery under 35 U.S.C. § 183 for damage caused by the

imposition of the secrecy order and for the alleged

unauthorized use by the Government of Plaintiff's invention.

Hornback, No. 99-168 C c/w 00-374, slip op. at 2. The Court

of Federal Claims held that Plaintiff's claim was barred by res

judicata or claim preclusion because Plaintiff could have

raised those theories of recovery in previous cases before the

Court of Federal Claims. /d. at 4. The Court of Federal

Claims judgment was affirmed on appeal by the Federal

Circuit. Hornback v. United States, Nos. 03-5108, -5111

(Fed. Cir. January 13, 2004) (non-precedential).

19a

c. Hornback v. United States, 56 Fed. CL 462 (Fed.

CI. 2003) (No. 01-99 C)

In this case, Plaintiff sought damages for “the propriety

interest in his intellectual property acquired by the U.S.

Government which was mandated by 32 C.F.R. §

159a.15(eX3) as a prerequisite for its classification at the level

of SECRET pursuant to Executive Order 12356.” Complaint,

Case No. 01-99 C. After issuing a show cause order why the

complaint should not be dismissed, the Court of Federal

Claims held that Plaintiff’s claim was barred by res judicata

again because Plaintiff could have raised this theory of

recovery in a previous suit or, in the alternative, Plaintiff had

not stated a claim because the regulatory authority under

which he premised his claim did not exist at the time his

action accrued. Hornback, 56 Fed. Cl. at 465 and 464 n. 3.

This judgment was recently affirmed on appeal. Hornback v.

United States, Nos. 035108, -5111 (Fed. Cir. January 13,

2004) (non-precedential).

d. Hornback v. United States, 56 Fed. Cl. 359

(Fed. Cl. 2003) (No. 02-1915 C)

In this case, Plaintiff raised a temporary takings theory of

recovery for the Government’s imposition of a secrecy order

on his patent application, as well as damages for alleged

improprieties committed during the taking. The Court of

Federal Claims found Plaintiff's claim barred by res judicata.

Hornback, 56 Fed. Cl. at 363. The Court of Federal Claims

also held that Plaintiff's claim was barred by the statute of

limitations and that 35 U.S.C. § 183 provided that the

exclusive remedy for harm imposed by the secrecy order, Id.

at 364. Further, the court held that it lacked subject matter

jurisdiction to hear Plaintiff's claim for the alleged

improprieties committed during the taking. Jd. at 365. The

20a

Federal Circuit affirmed. Hornback v. United States, No. 03-

5099 (Fed. Cir. January 13, 2004) (non-precedential).

Recently the Federal Circuit warned Plaintiff that

continued filing of claims is frivolous. In a per curiam order

the Federal Circuit stated,

. Hornback has now had substantial opportunities to

challenge the PTO’s secrecy order and to raise various

theories concerning recovery of damages against the

United States government. While the courts of the

United States are open for individuals to make claims

against their government, continued challenges

concerning the same set of underlying facts eventually

constitute an abuse of the judicial system. Such a point

has now been reached. Hornback is therefore warned

that further appeals involving claims based on the

same set of facts, whether raising the same or new

theories, may be held to be frivolous and subject to

sanctions, see Fed. R. App. P. 38.

Hornback v. United States, Nos. 03-5108, -5111, slip op. at

8-9 (Fed. Cir. Jan. 13, 2004).

Ill. Discussion

A. Defendant’s Motion to Dismiss

Defendant moves to dismiss Plaintiff's complaint on

grounds that (1) Plaintiff's complaint is barred by res judicata

and collateral estoppel; (2) Plaintiff's complaint is barred by

the statute of limitations; (3) the Court lacks subject matter

jurisdiction over the complaint; and (4) Plaintiff failed to

exhaust his administrative remedies.

21a

1. Legal Standards

a. Failure to State A Claim

A Rule 12(6)(6) motion tests the sufficiency of the

complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.

2001). Dismissal of a claim under Rule 12(b)(6) is appropriate

only where “it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would

entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46

(1957); Navarro, 250 F.3d at 732. Dismissal is warranted

under Rule 12(b)(6) where the complaint lacks a cognizable

legal theory. Robertson v. Dean Witter Reynolds, Inc., 749

F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams, 490

U.S. 319, 326 (1989) (“Rule 12(b)(6) authorizes a court to

dismiss a claim on the basis of a dispositive issue of law.”).

Alternatively, a complaint may be dismissed where it presents

a cognizable legal theory yet fails to plead essential facts

under that theory. Robertson, 749 F.2d at 534.

In reviewing a motion to dismiss under Rule 12(b)(6), the

court must assume the truth of all factual allegations and must

construe them in the light most favorable to the nonmoving

party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir.

2002), cert denied, b U.S. __, 123 S.Ct. 1570 (2003); Cahill

v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir.

1996). However, legal conclusions need not be taken as true

merely because they are cast in the form of factual allegations.

Robertson v. Corrothers, 812 F.2d 1173, ! ! 77 (9th Cir.

1987); Western Mining Council v. Watt, 643 F.2d 618, 624

(9th Cir. 1981). “Nor is the court required to accept as true

allegations that are merely conclusory, unwarranted

deductions of fact, or unreasonable inferences.” Sprewell v.

Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001),

amended by 275 F.3d 1187 (9th Cir. 2001). When ruling on

22a

a motion to dismiss, the court may consider the facts alleged

in the complaint, documents attached to the complaint,

documents relied upon but not attached to the complaint when

authenticity is not contested, and matters of which the Court

takes judicial notice. Parrino v. FLIP, Inc., 146 F.3d 699,

705-06 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453-

54 (9th Cir. 1994); MGIC Indem. Co. v. Weisman, 803 F.2d

500, 504 (9th Cir. 1986).

b. Subject Matter Jurisdiction

Federal courts are courts of limited jurisdiction. Kokkonen

v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377

(1994). Federal courts are presumptively without jurisdiction

over civil actions and the burden of establishing the contrary

rests upon the party asserting jurisdiction, /d. Federal judicial

power extends only to cases and controversies over which a

court has subject matter jurisdiction. Fed. R. C iv. P.

12(b)(1); Barker-Hatch v. Viejas Group Baron Long Capitan

Grande Band of Diqueno Mission Indians of Viejas Group

Reservation, 83 F. Supp.2d 1155, 1156 (S.D. Cal. 2000). A

federal court must consider its own subject matter jurisdiction

prior to ruling on any other motion. Ninigret Development

Corp. v. Narragansett Indian Wetuomuck Housing Authority,

207 F.3d 21, 28 (1st Cir. 2000).

2. Analysis

In this case Plaintiff brings two distinct claims against the

Defendant: (1) a “temporary” taking claim based on the

Defendant's alleged taking of Plaintiff's intellectual property

over a twelve year period; and (2) a Federal Tort Claims Act

for the “tortious acts committed during the course of that

taking, which include fraud, conspiracy to defraud, perjury,

23a

and the suppression of evidence of those acts.” Complaint, p.

\. Defendant maintains that both claims are barred.

a. The Effect of Prior Lawsuits On Plaintiff's

Temporary Taking Claim

Plaintiff's first claim is for the temporary taking of his

intellectual property fights. Defendant argues that (1)

Plaintiff's taking claim is not cognizable under the Federal

Tort Claims Act, (2) is barred by the doctrines of res judicata

and collateral estoppel, (3) is barred by the six year statute of

limitations, and (4) that 35 U.S.C. § 183 provides the

exclusive remedy. The Court first addresses Defendant’s res

judicata argument.

Res judicata, or claim preclusion, precludes the

relitigation of a claim previously tried and decided. Clark v.

Bear Stearns & Co., 966 F.2d 1318, 1320 (1992). Any basis

or theory of recovery that a litigant could have asserted in the

previous litigation, is barred by res judicata if the prior suit

was between the same parties on the same cause of action. Id;

Owens v. Kaiser Found Health Plan, Inc., 244 F.3d 708, 713

(9th Cir. 2001). “Res judicata applies when there is: (1) an

identity of claims; (2) a final judgment on the merits; and (3)

identity or privity between the parties.” Stuart v. U.S.

8ancorp, 297 F.3d 953, 956 (9th Cir. 2002). Courts in the

Ninth Circuit look to the following factors to determine if a

cause of action is the same as brought in a previous litigation:

(1) whether rights or interests established in the prior

judgment would be destroyed or impaired by prosecution of

the second action; (2) whether substantially the same evidence

is presented in the two actions; (3) whether the two suits

involve infringement of the same fight; and (4) whether the

two suits arise out of the same transactional nucleus of facts.

Clark, 966 F.2d at 1320.

24a

The. Court finds that_all_of the factors for res iudicata are

met in this case. Plaintiff has previously brought lawsuits

alleging the same theory of recovery he asserts in his first

cause of action - a taking of his intellectual property rights by

the identical defendant, the United States of America. In

addition, the earlier cases litigating Plaintiff's taking claim

reached final judgment on the merits.

In 1989, Plaintiff brought a suit against the same

Defendant on claims for damages resulting from the alleged

taking by classification of his patent and the imposition of a

secrecy order on that application. Hornback v. United States,

Civil No. 89-1914-R(M) (S.D. Cal. Oct. 2, 1992), aff'd, 16

F.3d 422 (Fed. Cir. 1993). The district court granted

summary judgment in favor of the Defendant concluding that

35 U.S.C. § 183 provided the exclusive remedy for Plaintiff's

asserted injury and that Plaintiff's asserted damages were

entirely speculative.‘

In 1994, Plaintiff again sued Defendant, alleging a taking

stemming from the classification of his invention as secret.

Hornback v. United States, Civil No. 94-0952-IEG (S.D.

Cal.), aff'd, 91 F.3d 152 (9th Cir. 1996). The district court

dismissed the complaint for lack of subject matter jurisdiction

and refused to transfer the case because the statute of

limitations had expired. /d. Plaintiff also pursued five prior

cases (two of which were consolidated) in the Court of

Federal Claims claiming that Defendant's classification of his

* Summary judgment is a judgment on the merits. Colello v. United

States Sea & Exech. Comm ‘n, 908 F. Supp. 738, 747 (C.D. Cal.

1995). Accordingly, such a judgment is entitled to res judicata

effect in subsequent litigation. Schwarzer, Tashima, and Wagstaffe,

California Practice Guide: Federal Civil Procedure Before Trial,

§ 14:28 (2004).

“a 25a

paler application and the wnaposition of a secrecy order on

that application constituted a taking under the Fifth

Amendment.

Plaintiff attempts to distinguish the instant case from his

previous suits by arguing that he is now pursuing a

“temporary” takings claim. The Fifth Amendment's

prohibition on the taking of private property for public use

without just compensation applies to both “temporary” and

“permanent” takings. See Tahoe-Sierra Preservation

Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S.

302, 347-48 (2002). Plaintiff pursued a temporary taking

claim before the Court of Federal Claims in Case No. 02-

1915 C. There, the Court of Federal Claims held that his

claim was barred by res judicata and the Federal Circuit

affirmed. Hornback, 56 Fed. C1. at 363, arid, No. 03-5099

(Fed. Cir. Jan. 13, 2004). The Federal Circuit held:

First, Hornback asserts that the doctrine of res

judicata is inapplicable because the Court of Federal

Claims did not previously address his temporary

takings claim on the merits. He distinguishes his

claim in the present case from his claim in the earlier

Case No. 99-38 C on the Basis that the earlier claim

was filed while the secrecy order was in effect and

therefore alleged a permanent taking, whereas the

present claim was filed after the secrecy order was

rescinded and therefore alleged only a temporary

Recently, we affirmed the Court of Federal Claims’

dismissal of another of Hornback’s takings claims on

the ground that Hornback was collaterally estopped

from arguing that his firing was timely. [citations

omitted] In that case, we specifically addressed

26a

Hornback’s allegation that “for 13 years, (from 1987

when the secrecy order was imposed until 2000 when

the patent issuedj Plaintiff was deprived of all use of

his property .” [citations omitted]. Thus, Hornback has

previously raised, and we have previously considered

the same temporary takings theory that he now asserts

in the present case. That claim was adjudicated on the

merits when we held that it was untimely, based on

Hornback’s pervious litigation of the statute-of-

limitations issue.

Hornback, No. 035099 (Fed. Cir. Jan. 13, 2004). The Court

agrees with the Federal Circuit that the “temporary” takings

claim now asserted has been in previously adjudicated in

Plaintiff's earlier lawsuits alleging a permanent taking. All

the facts giving rise to Plaintiff's cause of action for a

temporary taking are the same as those supporting his

permanent taking claim. Namely, Plaintiff alleges that the

secrecy order placed on his patent application and_ the

classification of his patent application effected a Fifth

Amendment taking. Plaintiff has previously litigated those

claims. The Court finds that (1) substantially the same

evidence is presented in this action and Plaintiff's prior suits

against Defendant, (2) the suits involve the infringement of

the same right - the alleged taking, whether permanent or

temporary of Plaintiff's intellectual property rights, and (3)

the suits arise out of the same transactional nucleus of facts.

Therefore, the Court finds that the doctrine of res judicata

bars the relitigation of Plaintiff's takings claun.

As the Court finds that Plaintiff's first claim for a Fifth

Amendment taking of his intellectual property is barred by the

doctrine of res judicata, the Court need not discuss

Defendant’s arguments that Plaintiff's claim is not cognizable

under the FTCA, that the claim is barred by collateral

27a

estoppel, the statute of limitations bars the claim or that 35

U.S.C. § 183 provides the exclusive remedy.

b. Plaintiff's Claim for Compensation for

Fraudulent Acts Committed During the Alleged

Taking

Plaintiff's second claim alleges that the PTO, Department

of Defense, or those working on their behalf, committed fraud

in the course of committing the alleged taking of Plaintiff's

intellectual property (the “improprieties claim”). For instance,

Plaintiff alleges that “non-trivial errors” were inserted in his

issued patent “for counter-intelligence purposes” which

evidences fraud and conspiracy “between the PTO and

DOD.” Complaint, p. 4. Further, Plaintiff alleges that an Air

Force attorney perjured himself by stating that the Air Force

was instrumental in reducing the classification of Plaintiff's

patent application from secret to “classifiable” when

according to Plaintiff” classifiable is not a proper classification

level.” /d. Plaintiff also alleges that Defendant suppressed

evidence, /d. Defendant argues that this Court lacks

jurisdiction to entertain Plaintiff's improprieties claim and

therefore that claim should be dismissed.

With respect to suits against the United States

Government, it is clear that the United States, as a sovereign,

is immune from suit unless it consents to be sued. United

States v. Mitchell, 445 U.S. 535, 538 (1980). Any waiver of

that immunity must be unequivocally expressed. /d. The

FTCA is an express waiver of sovereign immunity under

which the United States is subject to suit in actions sounding

in tort. See 28 U.S.C. § 1346(b). The scope of the federal

government’s consent to be sued in tort is limited by the

exceptions set forth in 28 U.S.C. § 2680. If a case falls within

any exception to the waiver, the court lacks subject matter and

28a

the case must be dismissed. See United States v. Gaubert, 499

U.S. 315, 323 (1991); Monaco v. United States, 661 F.2d

129, 131 (9th Cir. 1981).

28 U.S.C. § 2680(h) specifies that the FTCA’s waiver of

sovereign immunity does not apply to “[a)ny claim arising out

of assault, battery, false imprisonment, false arrest, malicious

prosecution, abuse of process, libel, slander,

misrepresentation, deceit, or interference with contract

rights.” 28 U.S.C. § 2680(h); see Wilson v. Drake, 87 F.3d

1073, 1076 (9th Cir. 1996). Plaintiff's impropriety claim

alleges that the Defendant committed several acts constituting

fraud against him during the pendency of the secrecy order on

above. Misrepresentation and deceit are torts that are

specifically excluded from the waiver of sovereign immunity

under the FTCA. 28 U.S.C. § 2680(h). Allegations of fraud

are akin to allegations of misrepresentation and deceit. See

Safeway Portland Employees” Fed. Credit Union v. Fed.

Deposit Ins. Corp., 506 F.2d 1213 (9th Cir. 1974) (scheme to

defraud the public is within the misrepresentation and deceit

exception under 28 U.S.C. § 2680(h)); see W. PAGE

KEETON ET AL., PROSSER & KEETON ON TORTS §

105 (Sth ed. 1984). Accordingly, Plaintiff's improprieties

claim is excluded under the waiver of sovereign immunity

under the FTCA and therefore this Court lacks subject matter

jurisdiction to adjudicate that claim.

B. Plaintiff's Motion for Summary Judgment

Plaintiff moves for summary judgment on grounds that

there are no genuine issues as to any material facts and he is

entitled to judgment as a matter of law. Defendant opposes

Plaintiffs motion.

29a

1. Legal Standard

Summary judgment is appropriate under Rule 56 of the

Federal Rules of Civil Procedure where the moving party

demonstrates the absence of a genuine issue of material fact

and entitlement to judgment as a matter of law. Fed. R. Cir.

P. 56(c); see also Celotex Corp. v. Cairett, 477 U.S. 317,

322 (1986). A fact is material when, under the governing

substantive law, it could affect the outcome of the case.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A dispute over a material fact is genuine if” the evidence is

such that a reasonable jury couid return a verdict for the

nonmoving party.” /d.

A party seeking summary judgment always bears the

initial burden of establishing the absence of a genuine issue of

material fact. Celotex, 477 U.S. at 323. The moving party

may meet this burden in twe ways: (1) by presenting evidence

that negates an essential element of the nonmoving party’s

case or (2) by demonstrating that the nonmoving party failed

to make a showing sufficient to establish an elemer* essential

to that party’s case on which that party will bear the burden

of proof at trial. /d. at 322-23. If the moving party fails to

discharge this initial burden, summary judgment must be

denied and the court need not consider the nonmoving party’s

evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60

(1970).

If the moving party satisfies its initial burden, the

nonmoving party cannot defeat summary judgment merely by

demonstrating “that there is some metaphysical doubt as to the

material facts.” Matsushita Elec. Indus. Co., Lid. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986); see also Anderson,

477 U.S. at 252 (“The mere existence of a scintilla of

evidence in support of the nonmoving party’s position is not

30a

sufficient.”). Rather, the nonmoving party must “go beyond

the pleadings and by her own affidavits, or by the depositions,

answers to interrogatories, and admissions on file, designate

specific facts showing that there is a genuine issue for trial.”

Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e))

(iaternal quotations omitted).

In ruling on a motion for summary judgment, “[t}he

district court may limit its review to the documents submitted

for purposes of summary judgment and those parts of the

record specifically referenced therein.” Carmen v. San

Francisco Unified Sch. D/st., 237 F.3d 1026, 1030 (9th Cir.

200 I). Therefore, the court is not obligated to “scour the

record in search of a genuine issue of triable fact.” Keenan v.

Allen, 91 F.3d 1275, 1279 (9th Cir. 1996) (citing Richards v.

Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)). The

court must view all inferences drawn from the underlying

facts in the light most favorable to the nonmoving party.

Matsushita, 475 U.S. at 587. “Credibility determinations

[and] the weighing of evidence ... are jury functions, not

those of a judge, [when] he [or she] is ruling on a motion for

summary judgment.” Anderson, 477 U.S. at 255.

2. Analysis

Plaintiff's motion for summary judgment fails because he

cannot demonstrate that there are no factual disputes and that

he is entitled to judgment as a matter of law. As discussed

above, Plaintiff's claim for Fifth Amendment taking is barred

by the doctrine of res judicata. In addition, this Court lacks

subject matter jurisdiction to entertain Plaintiff's improprieties

claim.

As such the Court DENIES Plaintiff's motion for

summary judgment.

3la

IV. CONCLUSION

Having reviewed the papers submitted and the relevant

law, IT IS HEREBY ORDERED that Plaintiff's motion for

summary judgment is DENIED. IT IS FURTHER

ORDERED that Defendant’s motion to dismiss Plaintiff's

complaint is GRANTED. The Court DISMISSES Plaintiff's

Complaint with prejudice.

IT IS SO ORDERED.

|

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32a

APPENDIX E

INDUSTRIAL SECURITY MANUAL FCR

SAFEGUARDING CLASSIFIED INFORMATION

Department of Defense

January 1991

DEFENSE INVESTIGATIVE SERVICE

1900 Half St., S.W.

Washington, D.C. 20324-1700

January 3, 1991

FOREWORD

This Manual is issued under the authority of DoD

Directive 5220.22, “DoD Industrial Security Program,”

December 8, 1980. Its purpose is to provide uniform security

requirements for safeguarding information of the Department

of Defense, certain other federal agencies, and Certain foreign

governments, that is released or disclosed to Industry in

connection with classified contracts under the Defense

Industrial Security Program.

The provisions of this Manual apply to all industrial,

educational, commercial and other organizations and entities

that have executed a DoD Security Agreement (DD Form

441) or a DoD Transportation Security Agreement (DIS Form

1149) with the Department of Defense.

33a

This Manual supersedes DoD 5220.22-M, March 1989.

The revisions of this Manual are required by the demands of

national security as determined by the Government, notice of

which is hereby furnished pursuant to section 1 A(1) of the DD

Form 441 and section 1A of the DIS Form 1149.

Users of this publication are encouraged to submit

recommended changes and comments to their cognizant

security office, Defense Investigative Service.

This Manual is effective immediately, and is mandatory

for use by all industrial firms cleared under the Defense

Industrial Security Program.

An initial distribution of this Manual will be made to

current participants in the Defense Industrial Security

Program. Additional copies may be obtained from the

Superintendent of Documents, U.S. Government Printing

Office, Washington, D.C. 20402.

/s/ John F. Donnelly

Director

34a

SECTION 3. STORAGE AND STORAGE EQUIPMENT

5-300. General. Classified information shall be stored under

conditions adequate to prevent unauthorized persons from

gaining access. Contractors shall not be eligible to receive,

nor have possession of, classified material at their cleared

facilities until they have adequate storage capability approved

by the CSO. Classified material, when not in actual use and

under the control of an appropriately cleared person, shall be

stored and protected in accordance with this Section.

5-301. Standards for Storage Equipment. The General

Services Administration (GSA) establishes and publishes

uniform standards, specifications, and supply schedules for

containers, vaults, and associated security devices and

equipments suitable for the storage and protection of classified

information. Cabinets, manufacturers, and prices of storage

equipment approved by the GSA are listed in the Federal

Supply Schedule (FSS) catalog (FSC GROUP 71-Part Il).

Copies of specifications and schedules may be obtained from

any regional office of the GSA.

5-302. TOP SECRET STORAGE. TOP SECRET material

shall be stored in an approved security container or in an

approved Class A, B, or C vault, with supplemental controls.

5-303. TOP SECREI Supplemental Controls. During

nonworking hours, the following area (room, building or

structure) controls are required for TOP SECRET material.

a. Entry to the area in which the container is located shall

be controlled by a SECRET cleared, authorized employee or

guard stationed to control access to the area, or by a lock

which provides reasonable protection against surreptitious

entry; and

35a

b. The interior of the area (whichever is controlled in

accordance with paragraph a. above) shall be patrolled and

each container inspected at least once every two (2) hours by

a SECRET cleared guard who is supervised by a system that

provides a record of the coverage of key points within the

area; or

c. The area in which the container is located, or the

container itself, shall be equipped with an approved alarm

system.

5-304. SECRET Storage. SECRET material shall be stored

in an approved security container or vault auth«ized for the

storage of TOP SECRET without supplemental controls,

or in a security cabinet or strongroom as follows:

a. A safe, steel file cabinet, or safe-type steel file

container which has an automatic unit locking mechanism and

an built-in combination lock, with supplemental

controls."

b. Any steel file cabinet which has five sides enclosing the

drawers (including a bottom that is permanently attached by

welding, rivets or peened bolts so it may not be removed

without leaving visible evidence of entry) and is secured by a

These cabinets will not be authorized for storage of SECRET

information effective July 1, 1998 unless the cabinets themselves

are alarmed, or they are located in an alarmed area, closed area, or

strongroom during non-working hours. (Case by case exceptions

may be granted by the CSO.) All facilities cleared after June 20,

1988 must conform to these standards prior to receiving approval

to safeguard SECRET material.

36a

rigid metal lock bar and an approved combination padlock,

with supplemental controls.* See NOTE.

5-513. Disclosure During Visits. Contractors may disclose

classified information during visits provided the visit is

necessary for a government purpose; the parties involved

possess the appropriate clearances, and have a need-to-know

for the classified information; appropriate security measures

are taken as necessary to preclude unauthorized disclosure of

classified information; and the number of classified visits is

held to a minimum consistent with contractual requirements.

a. Contract Related Visits. When there is a classified

classified information may be disclosed without a need-to-

know certification from the User Agency that has jurisdiction

over the information. Such visits are Category | visits.

b. Non-contract Related Visits. When there is no classified

contractual relationship between the parties involved,

classified information may not be disclosed without a need-to-

know certification from the User Agency that has jurisdiction

over the information. Such visits are Category 2 visits.

c. Visit Procedures. See Chapter 6.

5-514. Disclosure at Contract Related Meetings.

Contractors may disclose ciassified information at a meeting

? The keepers of the rigid metal lock bar shall be secured to the

cabinet by welding, rivets, or bolts, so they cannot be removed and

replaced without leaving evidence of the entry. The drawers of the

container shall be held securely, so their contents cannot be

removed without forcing open the drawer.

37a

conducted pursuant to a classified contract without specific

authorization of the User Agency, provided:

a. The meeting is held only in the contractor's or

subcontractor’s cleared facility and the meeting site is

physically secure.

b. Attendance at the meeting is limited to cleared persons

who have a need-to-know in connection with the contract,

including employees of the contractor or subcontractor,

consultants, and User Agency representatives.

c. Security controls are established to ensure proper

safeguarding of the classified information involved.

d. The contractor conducting the meeting shall ensure that

classified documents, notes, minutes, recordings, or

summaries resulting from the meeting are properly classified

and safeguarded, and that attendees are given sufficient

classification guidance during oral presentations. Classified

material removed from the meeting site shall be transmitted as

required by this Manual for the level of classified information

involved.

5-515. Disclosure at Non-contract Related Meetings.

Contractors may disclose classified information at non-

contract related meetings provided written approval for

disclosure of the classified information at the meeting is

obtained from the User Agency that has jurisdiction over the

information and the meeting is sponsored for security

purposes by a User Agency.

5-516. User Agency Sponsorship of Meetings. Disclosure of

classified information to large audiences increases security

risks and may involve substantial costs to provide adequate

38a

security and must be limited to the minimum necessary.

However, classified meetings which serve a government

purpose and at which adequate security measures have been

provided in advance, may be conducted by a cleared

contractor provided the meeting is sponsored by a User

Agency. User Agency sponsorship means that a User Agency

that has principal interest in the classified subject matter of the

meeting must approve the meeting’s security arrangements,

announcements, attendees, and the location of the meeting.

The User Agency may delegate certain responsibilities to a

cleared contractor, under the general supervision of the User

Agency, for the security arrangements and other actions

necessary for the meeting.

a. Requests for Sponsorship. Contractors desiring to

requests to the User Agency having principal interest in the

subject matter of each meeting. Only one User Agency may

sponsor a meeting. Therefore, a request shall be sent to only

one User Agency at a time. If that agency declines to accept

sponsorship, or if it is appropriate to change the sponsoring

agency, the request may be sent to another User Agency

having a principal interest in the subject matter of the

meeting. Such requests shall include the details concerning all

prior requests. A request classification or upgrading to a

higher classification, or believe that the security classification

guidance provided is improper or inadequate, are required to

discuss such issues with the pertinent User Agency for

remedy. If a solution is not forthcoming, and the contractor

believes that corrective action is still required, a formal

challenge shall be made to the User Agency that originally

classified the information. Such challenges shall include a

description sufficient to identify the issue, the reasons why the

contractor believes that corrective action is required, and any

recommendations for appropriate corrective action. In any

39a

case, the information in question shall be safeguarded as

required by this Manua! for its assigned or proposed level of

classification, whichever is higher, until action is completed.

If no answer is received within 45 days, the CSO may be

requested to provide assistance in obtaining a response. The

fact that a contractor has initiated such a challenge will not,

in any way, serve as a basis for adverse action by the User

Agency involved. If a contractor believes that adverse action

did result from a classification challenge, full details should

be furnished promptly to the CSO for resolution.

4-105. Contractor Developed Information. Whenever a

contractor develops an unsolicited proposal or originates

information not in the performance of a classified contract,

the following rules shall apply:

a. If the information contained in the proposal or other

material, was previously identified by a User Agency as

Classified, the proposal or other material shall be classified in

accordance with an appropriate DD Form 254, classification

guide, or source document and marked as required by this

Chapter.

b. If the information does not fall within a. above, and the

contractor believes the proposal or other material contains

information which may, or should, be classified, the

contractor is requested to protect the information as though

classified at the appropriate level and submit it to a User

Agency that has an interest in the subject matter for a

classification determination. In such a case, the following

protective marking, or a similar marking that clearly conveys

the same meaning, shall be used:

40a

CLASSIFICATION DETERMINATION : PENDING-

Protect as though classified (TOP SECRET, SECRET, or

CONFIDENTIAL).

This marking shall appear conspicuously at least once on

the material but it is not necessary to further mark it until a

classification determination is received. In addition,

contractors are not precluded from marking such material as

company-private or proprietary information. Pending a

determination by a User Agency, the contractor is requested

to handle and protect the information as prescribed by this

Manual for the classification level recommended. It should be

noted, however, that E.O. 12:356 prohibits a User Agency

from classifying information over which the Government has

no jurisdiction. The proposal or other material submitted may

not be classified by a User Agency unless: (I) it incorporates

classified information to which the contractor_was given prior

access, or (ii) the Government first acquires a proprietary

interest in the information.

4-106. Classified Information Appearing in Public Media.

The fact that information currently classified by a UA has

appeared in a public medium does not mean that it is

automatically declassified. Contractors shall continue the

classification until formally advised to the contrary by the

User Agency. Questions as to the propriety of continued

classification in these cases should be brought to the

immediate attention of the UA.

4-107. Downgrading or Declassifying Classified

Information. Information is downgraded or declassified

based on the loss of sensitivity of the information due to the

passage of time or on occurrence of a specific event,

information that continues to meet the classification criteria,

despite the passage of time, shall remain classified and

4la

continue to be protected. Contractors downgrade or declassify

information based on the guidance provided in a DD Form

254, upon formal notification, or as shown on the tnaterial.

These actions constitute implementation of a directed action

rather than an exercise of the authority for deciding the

change or cancellation of the classification. At the time the

material is actually downgraded or

42a

APPENDIX F

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

Civil No.04-CV0339-WQH (Wimc)

{Filed February 19, 2004]

ALTON B. HORNBACK,

Plaintiff,

Vv.

UNITED STATES OF

AMERICA

)

)

)

)

)

)

)

Defendants. )

)

COMPLAINT FOR DAMAGES PURSUANT

TO THE FEDERAL TORT CLAIMS ACT

(28 U.S.C.A 1346(b), 2674)

I. CAUSE OF ACTION

Plaintiff Alton B. Hornback, brings this suit for just 18

compensation and damages, in the amount of $12 million, for:

(1) the theft, or tortious “temporary” taking, of all use by

Plaintiff, of his intellectual property over a 12-year period;

and

43a

(2) for other tortious acts committed during the course of

that taking, which include fraud, conspiracy to defraud,

perjury, and the suppression of evidence of those acts.

Those acts stem from the specifications in the Secrecy

Orders 25 imposed on Plaintiff's patent application allegedly

pursuant to Section 181 of the Invention Secrecy Act of 1952

(35 U.S.C. 181-188), which mandate compliance with

Executive Order 12356 of 1982.

APPENDIX G

UNITED STATES DEPARTMENT OF COMMERCE

Patent and Trademark Office

(Filed, 4/25/86]

Pat. & T.M. Office Mailed Aug 24, 1987

Licensing and Review

Serial No.: 859,033

Applicant: Alton B. Hornback

Title: Real Time Boresight Error Slope Sensor

To be protected at Classification Level of:

Top Secret,

XXX _ Secret

Confidential

Special Instructions:

Sponsoring Agency & Address:

U.S. AF/JACP

Chief, Patent Div.

1900 Half. St. S.W.

Washington, DC 20324

SECRECY ORDER AND PERMIT FOR DISCLOSING

CLASSIFIED INFORMATION

(Title 35, United States Code, sections 181-188 (1952))

45a

NOTICE: To the applicant(s) above named; his, her, or their

heirs; and any and all of the assignees, licensees, attorneys

and agents, hereinafter designated principals:

You are hereby notified that the above-identified patent

application has been found to contain subject matter which

discloses classifiable information. The unauthorized disclosure

of such subject mafter would be detrimental to the national

security, and you are ordered to keep the subject matter secret

(as required by 35 U.S.C. 181) and you are further ordered

NOT TO PUBLISH OR DISCLOSE the subject matter to any

person except as specifically authorized herein.

Any other patent application already filed or hereafter filed in

the U.S. or any foreign country which contains any significant

part of the subject matter of the above-identified patent

application falls within the scope of this Order. If such other

patent application is not under a Secrecy Order imposed by

the U.S. Patent and Trademark Office, it and the common

subject matter need to be brought to the attention of the

Director, Group 220, Attn: Licensing and Review, U.S.

Patent and Trademark Office, Washington, D.C. 20231 as

soon as possible.

Publication or disclosure of the subject matter of the above-

identified patent application, except as authorized herein or

subsequently by the Commissioner of Patents and

Trademarks, may subject the person publishing or disclosing

the subject matter to the penalties of 35 U.S.C. 182, 185 and

186 (1951).

The subject matter of the above-identified application has been

determined to be encompassed by E.O. 10865, entitled

“Safeguarding of Classified Information Within Industry” or

E.O. 12356, entitled “National Security Information” and

46a

thus is subject to the “Industrial Security Manual for

Safeguarding Classified Information.”

The principals shall protect the subject matter as required by

the Industrial Security Manual for Safeguarding Classified

Information and may disclose the subject matter of the above-

identified application to other persons having the requisite

clearance on a “need-to-known basis” provided the person to

whom the subject matter is disclosed is furnished with a copy

of this Secrecy Order and is informed that this Secrecy Order

is applicable to the subject matter disclosed. The

declassification, in whole or in part, of the subject matter of

the above-identified application does not modify this Secrecy

Order. The requirements of this Secrecy Order remain in

effect until the Secrecy Order is rescinded or modified by the

Commissioner of Patents and Trademarks. The fact that the

subject matter as a whole is declassified should be brought to

the attention of the sponsoring agency

This permission to disclose does not authorize the disclosure

of the subject matter of the above-identified application

through (1) the filing of any foreign application without

specific permission of the Patent and Trademark Office, or (2)

the export of any item or data without any export license

which may be required.

This order should not be construed in any way to mean that

the Government has adopted or contemplates adoption of the

invention disclosed in this application and it is not any

indication of the value of such invention.

/s/ Kenneth L. Cage

Director, Special Laws Administration

47a

APPENDIX H

U.S DEPARTMENT OF COMMERCE

Patent and Trademark Office

Serial No. 06/859,033

Filing Date: 4/25/86

First Named Applicant: Hornback

Date Mailed: 9/17/87

Alton B. Horback

5650 Bloch Street

San Diego, CA 92122

NOTICE OF ALLOWABILITY (FORM D-10)

This application is now in condition for allowance, and the

prosecution is closed. However, in view of the secrecy order

issued August 24, 1987, under 35 U.S.C. (1952) 181, this

application will be withheld from issue during such period as

the national interest requires.

The allowable clams are: 3-6

/s/ Charles Jordan

Examiner

i

f

|

'

48a

APPENDIX I

U.S DEPARTMENT OF COMMERCE

Patent and Trademark Office

Serial No. 06/859 ,033

Filing Date: 4/25/86

First Named Inventor: Hornback

Date Mailed: 4/21/99

RESCINDING ORDER

The Secrecy Order dated 8-24-87 prohibiting disclosure or

publication of the subject matter of the above entitled

application under the provision of Title 35 United States Code

(1952) 181-188 is hereby rescinded. Normal prosecution is

~ continued and any suspension thereof because of the secrecy

order should now the removed. This rescinding order does

not affect the provisions of any classified government contract

or existing laws relating to espionage and national security.

/s/

Director

Special Laws Administration Group

49a

APPENDIX J

UNITED STATES PATENT

HORNBACK

Patent Number: 6,079,666

Date of Patent: Jun. 27, 2000

REAL TIME BORESIGHT ERROR SLOPE SENSOR

Inventor: Alton B. Hornback

5650 Bloch St.

San Diego, Calif. 92122

Appl. No.: 06/859,033

Filed: Apr. 25, 1986

_ a> SPerrrrrrrrrrrrrr rrr eee F41G 7/00

DB GE, ccccsevecess 244/3.19; 244/3.16; 244/3.15

PUB CC SORTER 2. wc ccccccnecvevcccess 244/3.16 |

References Cited |

|

U.S. PATENT DOCUMENTS

4.303.211 12/1981 Dooley etal. ........ 244/3.19

OTHER PUBLICATIONS

50a

Waymeryer, W.K. and Macala, G.A., “Intercept Guidance

and Control Concepts Demonstration”, AFATL-TR-79-59,

pp. 74-79, Feb. 1978.

Yost, D.J., Weckesser, L.B. and Mallalieu. R.C.,

“Technology Survey of Radomes for Anti-Air Homing

Missiles”, FS-80-22, Johns Hopkins University Applied

Physics Laboratory, Mar. 1980.

Primary Examiner- Charles T. Jordan

Assistant Examiner- Theresa M. Wesson

ABSTRACT

In a missile which employs a terminal homing seeker and a

proportional navigation guidance law the space rate o f change

of boresight error, i.c., the boresight error slope, is one of the

predominant error sources.

It has been found that the boresight error slope is proportional

to the curvature of the secker open loop transfer

characteristic. Accordingly, the boresight error slope sensor

senses the curvature of the seeker open loop transfer

characteristic. This is accomplished by intermittently

dithering the seeker instantaneous field-of-view about the line

of sight at a rate too great for the normal tracking loop to

respond. Thus, the open loop transfer characteristic is

obtained while leaving the normal tracking loop unperturbed.

The curvature of the open loop transfer characteristic is then

obtained in real time by computing the “second difference”

from the measured open loop transfer characteristic.

4 Claims, 3 Drawing Sheets