How
NASA Treats Independent Inventors
Jed Margolin
Are you an
Independent Inventor?
Have you had
any dealings with NASA?
How did they
treat you?
I am an
independent inventor and I have had dealings with NASA.
They have
acted very badly towards me.
That is why I
am suing them.
I am going to
blog this, so at this point I don’t know how it is going to turn out.
As the process
unfolds I expect we will learn a great deal about how Government works.
For a direct index to the Court documents click here.
Blog Index
January 1, 2010 - Introduction
July 31, 2009 - I file the Complaint in
U.S. District Court for the District of Nevada
August 1, 2009 - The Complaint appears in Pacer right away
August 5, 2009 - Summons issued as to USA;
Judges assigned; My Motion to be allowed to file
electronically
August
22, 2009 - Certificate of Interested Parties; Federal Rules of Civil
Procedure; Local Rules; NASA responds (late) to my FOIA Appeal
August 28, 2009 - I file a Motion to
correct the Docket Report (which says I haven't served the U.S.
Attorney)
September 4, 2009 - My Motion to be allowed
to file electronically is granted
September
13, 2009 - NASA will be defended by U.S. Attorney for the
District
of Nevada (DOJ). Actually, NASA's Champion will be Assistant U.S.
Attorney Holly Vance. Holly files a Motion to Dismiss because
I
named Charles F.
Bolden, NASA Administrator as Defendant instead of NASA.
September 25, 2009 - The Court issues a
Klingele Minute Order. It's like a One Minute Drill in football. I have
to scramble.
I respond and also file a Motion for Leave to File an Amended Complaint
as well as the Amended Complaint (First Amended Complaint)
September 26, 2009 - I discuss stare decisis. The full phrase is stare
decisis et non quieta movere. You will see it translated in
various ways.
My favorite is, “stand by the decision and do not disturb what is
settled.”
I provide a list of the cases cited so
far.
October
9, 2009 - Holly filed a Response to my Opposition to Motion to Dismiss.
She also filed an Non-Opposition to my Motion for Leave to File an
Amended Complaint.
November 9, 2009 - The Court granted my
Motion to Correct the Docket Report
December
21, 2009 - In November 2009 I received about 4,000 pages of documents
from NASA. Although many are redacted (some completely) they tell a
very different story about what NASA has been doing since I filed the
Claim for Compensation in 2003. It's mind boggling and my mind is
appropriately boggled.
December 22, 2009 - I filed a Motion for
Leave to File an Amended Complaint. This will be my Second Amended
Complaint.
December
23, 2009 - I have posted the approximately 4,000 pages of documents
that NASA sent me in November. Do you know how long it takes
to
scan 4,000 pages?
January 21, 2010 -
Holly's Motion to Dismiss was still pending. Motions have to be ruled
on even if they are moot. A telephone conference was scheduled
to
work it out (the Judge, Holly, and myself), and we did.
March 5, 2010 - I dropped Charles F. Bolden, NASA
Administrator as a Defendant and added National Aeronautics and Space
Administration.
March
10, 2010 - NASA 4,000 pages of documents show they were interested in
the Universal Avionics Systems Corporation (UASC) lawsuit. The NASA
documents included one of the UASC documents. I don't think it was the
best one. [I originally posted all of the publicly available documents
in the UASC case. Now I am just posting the best ones].
March 12, 2010 - I filed a
second Freedom of Information Act request with NASA. Their response was
inadequate. I appealed. Later, they will deny my Appeal. I
didn't sue them over this one.
April 21, 2010 - Holly and I agreed to a
schedule, and she finally Answered the Complaint (the Second Amended
Complaint).
April
23, 2010 - I received NASA's denial of my second FOIA request. It was
denied by Thomas S. Luedtke. Luedtke is like your high school's
Vice-Principal. He is NASA's Hatchet Man. Nonetheless, this FOIA
request produced some useful information.
June 9, 2010 - I filed my Motion for
Summary Judgment.
September
9, 2010 - On September 7 NASA filed their Opposition to Motion for
Summary Judgment and Cross-Motion for Summary Judgment.
October
4, 2010 - I filed my Reply to NASA's Opposition to my Motion for
Summary Judgment and my Opposition to NASA's Cross-Motion for
Summary Judgment
November 9, 2010 - On November 1 NASA filed a Motion to Strike and the Government's Reply. On November 8 I filed a
Motion Requesting Leave For Excess Pages, an Opposition to Motion to
Strike and Motion Requesting Leave to File Declaration, and a Motion to
Strike the Government's Reply.
November 24, 2010 - Holly's REPLY TO
OPPOSITION TO MOTION TO STRIKE AND OPPOSITION TO MOTION REQUESTING LEAVE TO
FILE DECLARATION.
December 3, 2010 - Holly filed a Notice of Errata. I filed my Reply to Holly's Opposition to my Motion to Strike.
April
21, 2011 - The Court's Decision (March 31, 2011), My Motion for
Costs (April 3, 2011), Holly's Response (Opposition) to my Motion for
Costs (April 20, 2011)
April 25, 2011 - I file my Response to NASA's Response to My Motion For Costs
October 22, 2011 - a Tardy Update
October 22, 2011 (Continued)
December
7, 2011 - on November 3, 2011 the Court ordered NASA to pay me $525.06
in costs. It has been 33 days and NASA has not paid me.
January 1, 2010
I
contacted NASA in May 2003 because I thought they had infringed one of
my patents in their X-38 project. I wanted a friendly conversation
because I thought they should buy the patent in order to control the
technology.
NASA did not want a friendly conversation. They suggested I file a
claim for compensation, so I did that.
Then
they told me that they would conduct an investigation (expected to last
three to six months) and that the purpose of the investigation would be
to find prior art to invalidate my patent.
After six months I
contacted them to find out the results of the investigation. They said
it hadn't been done yet. They also said that since I was an
independent inventor my patent had to be crap anyway. They
said
some other things, too.
After that, they refused to talk to me.
Afterwards, I assigned the patent to Optima Technology Group, and the
claim went with it.
I still wanted to know what had happened with the investigation so in
July 2008 I filed a FOIA Request with NASA.
They
asked for an extension of 90 days to respond and I said ok. Still, it
wasn't until May 2009 that they sent me any documents. Most of the
documents they sent me were documents I already had because they were
documents I had sent to NASA.
I filed an Appeal with NASA. After
their deadline for responding to the Appeal had passed they asked me
for an extension. This time I said no, and in July 2009 I
filed a
lawsuit in U.S. District Court for the District of Nevada.
As of January 2010 the case has not yet gotten off the ground but in
November 2009 NASA
gave me about 4,000 pages of documents. Until then I thought NASA had
been ignoring me all those years. The documents tell a very different
story. It's a story of deception, conspiracy, and criminal misconduct
by a rogue group within NASA. And we learn that the humble
Peanut Butter and Jelly Sandwich
is a good metaphor for Patents.
If you
want to skip ahead to the most interesting part so far click here.
July
31, 2009
It’s a long
story, but can be summarized in the Complaint I
have filed against NASA in the U.S. District Court for the District of
Nevada.
I have added active links to the exhibits and references.
COMPLAINT
FOR INJUNCTIVE RELIEF
1.
This is an
action under the Freedom of Information Act, 5
U.S.C. § 552
(2007) (“FOIA”), for injunctive and other appropriate relief
seeking the disclosure and release of agency records improperly
withheld from
plaintiff by defendant Charles F. Bolden, Administrator of the National
Aeronautics and Space Administration.
Jurisdiction
and Venue
2.
This Court has subject matter jurisdiction over this action and
personal jurisdiction over the parties pursuant to
5 U.S.C. § 552(a)(2)(A), 5
U.S.C. § 552(a)(2)(C), 5
U.S.C. § 552(a)(3)(A), 5
U.S.C. § 552(a)(3)(C) , 5
U.S.C. § 552(a)(6)(A)(ii), and 5
U.S.C. § 552(a)(6)(F).
3.
Venue is proper in this district pursuant to Section 552(a)(4)(B), as
this is the district in which plaintiff resides.
Parties
4.
Plaintiff Jed Margolin (“Margolin”) is an engineer and independent
inventor who resides at 1981 Empire Rd., VC Highlands, Nevada.
5.
Defendant Charles F. Bolden is the Administrator for the National
Aeronautics and Space Administration (“NASA”), which is an independent
administrative agency within the Executive Branch of the United States.
NASA is an agency within the meaning of 5
U.S.C. § 552(f)(1).
Statement
of Facts - Background
6.
Margolin is the named inventor on U.S. Patent 5,904,724 Method and
apparatus for remotely piloting an aircraft issued May 18,
1999 (the
‘724 patent). The front page of the patent is in Exhibit 1, Appendix A12.
The patent teaches the use of what is now called synthetic vision
for
controlling an unmanned aerial vehicle (UAV).
7.
Margolin contacted NASA in May 2003 after he became aware that NASA had
used synthetic vision in the X-38 project. Because the use of synthetic
vision for controlling a UAV can be used to the detriment of this
country by unfriendly entities he wanted a friendly conversation
because he thought NASA should buy the patent in order to control the
technology.
8.
In June 2003 Margolin was turned over to Mr. Alan Kennedy in the Office
of the General Counsel. This is what Margolin recorded in his Contact
Log:
Summary: He basically said that
what most independent inventors have is junk and that since I am an
independent inventor what I have is probably junk. If NASA evaluates it
as a license proffer it will give it a pro forma rejection and I will
file a claim anyway, so the same people who rejected it as a proffer
will reject it as a claim, but in the process will have had to do more
work, so to save them some work they will ignore the proffer and handle
it as a claim.
9.
As a result, Margolin filed a claim, completely answering all the
questions on NASA’s claim form. See Exhibit
1, Appendix A2. Then Mr. Kennedy informed him that NASA would
conduct an investigation (expected to last 3-6 months) and that the
purpose of the investigation would be to find prior art to invalidate
the patent.
10.
After six months Margolin did not hear from NASA so he called Mr.
Kennedy, who said:
a.
The investigation had not been done.
b. NASA had a Research Exemption for
using the patent. Margolin advised him this was not true.
See Madey v. Duke
307 F.3d 1351 (Fed. Cir. 2002).
c. "The X-38 never flew." Margolin
informed him of the video on NASA's web site showing the X-38 flying.
d. The Statute of Limitations gives NASA
6 years to respond to his claim.
e. It would cost Margolin more to sue
NASA in Federal Claims Court than he could hope to recover from NASA.
11.
After that, Mr. Kennedy refused to talk to Margolin or respond to his
letters. Then, various things came up and Margolin was unable to pursue
his claim against NASA.
12.
Subsequently, Margolin assigned the patent to Optima Technology Group,
a Delaware Corporation. The claim against NASA went with the patent.
Statement
of Facts - Current Case
13.
Although Margolin no longer owned the claim against NASA he still
wanted to know the results of NASA’s investigation so, on July 1, 2008
he filed a FOIA request. See
Exhibit 2, Appendix A17. It was assigned FOIA HQ 08-270. For
some reason it was turned over to Mr. Jan McNutt in the Office of the
General Counsel. Mr. McNutt’s response is Exhibit
3, Appendix A19. In his response Mr. McNutt admitted that no
investigation had been done and asked Margolin to give NASA a 90-day
extension to his FOIA request.
14.
Margolin agreed to the extension. See Exhibit
4, Appendix A21. However, despite being told several times
that the requested documents were being sent out, NASA did not send any
documents to Margolin until May 18, 2009. It is likely that the reason
NASA finally responded to Margolin’s FOIA Request is the fax he sent to
Acting Administrator Christopher Scolese where he asked Mr. Scolese to
confirm that he had exhausted all the administrative remedies that NASA
had to offer. See Exhibit 5,
Appendix A23. Margolin had previously sent the
letter to Mr. Scolese by Certified Mail, but USPS did not deliver it
and still has no explanation how or where it was lost.
15.
NASA’s response to Margolin’s FOIA Request is in Exhibit 6, Appendix A27. The
documents themselves have been omitted from this Complaint due to their
length. The NASA Response states:
It
has been determined
that portions of the records found responsive to your request contain
information which is exempt from disclosure under the deliberative
process privilege of Exemption 5. This privilege covers advisory
opinions, recommendations, and deliberations, which are part of the
government decision-making process, 5. U.S.C. § 552(b)(5).
It should be
noted that 5 U.S.C. § 552(b)(5)
actually states, referring to Section (a) which requires agencies to
make information available to the public:
(b)
This section does not apply to matters that are -
.
.
.
(5) inter-agency or intra-agency memorandums or letters which would not
be available by law to a party other than an agency in litigation with
the agency;
16.
Although 5 U.S.C. § 552(a)(6)(F)
requires agencies to give an estimate of the volume of the documents
being withheld, NASA failed to do so.
17.
One of the documents that NASA withheld from Margolin is a letter dated
March 19, 2009 that was sent by Gary G. Borda (“Borda”) NASA Agency
Counsel for Intellectual Property to Optima Technology Group (“OTG”).
See Exhibit 7, Appendix A30.
This document was given to Margolin by OTG. In this letter Borda denies
Claim I-222 regarding NASA’s infringement of U.S. Patent 5,904,724
(‘724) in the X-38 project. Margolin’s FOIA 08-270 request to NASA was
to produce documents relating to Claim I-222 and NASA withheld the most
material document so far. The Borda letter asserts:
“…
numerous pieces of evidence were uncovered which would constitute
anticipatory prior knowledge and prior art that was never considered by
the U.S. Patent and Trademark Office during the prosecution of the
application which matured into Patent No. 5,904,724.”
And states, “…
NASA reserves the right to introduce such evidence of invalidity in an
appropriate venue, should the same become necessary.”
The exemption
claimed by NASA in their FOIA Response was for:
(5)
inter-agency or intra-agency memorandums or letters which would not be
available by law to a party other than an agency in litigation with the
agency;
Optima
Technology Group is not an agency under 5
U.S.C. § 552(f)(1). It is a private company. And circulating
the Borda patent report solely within NASA or among other federal
agencies is not an appropriate venue for NASA to use to have a patent
declared invalid. The only appropriate venues for NASA to challenge the
validity of a U.S. Patent are in the U.S. Court of Federal Claims and
the U.S. Court of Appeals for the Federal Circuit. A Court will not
accept
NASA’s word that a patent is invalid due to prior art. NASA would be
required to produce the evidence. Thus the Borda patent report would be
available by Law to a party other than an agency in litigation with the
agency.
Therefore, the
exemption NASA claims under 5
U.S.C.§552(b)(5) does not apply.
There is another reason NASA needs to produce the Borda patent report.
Although Margolin no longer owns the ‘724 patent he is still the named
inventor. By asserting it has evidence to invalidate the patent, and
then withholding that evidence, NASA has defamed Margolin’s reputation
as an inventor. It smacks of 1950s McCarthyism (making
damaging
accusations without providing proper evidence).
18.
Margolin filed a FOIA Appeal on June 10, 2009. The Margolin Appeal is Exhibit 8, Appendix A36. The
Appendices in the appeal have been omitted due to their
length. Margolin’s FOIA Appeal was received at NASA
Headquarters on June 12, 2009. See Exhibit
9, Appendix A57.
19.
On Monday, July 21, 2009, Margolin called the NASA Office of the
General Counsel to inform NASA that they had failed to respond by the
20 day statutory deadline required by 5
U.S.C. § 552(a)(6)(A)(ii), and to ask what NASA’s intentions
were. Margolin spoke to Mr. Randolph Harris who said he would look into
the matter and call him back later that day. Mr. Harris did not call
Margolin back that day, so the next day Margolin called Mr. Harris. Mr.
Harris said that NASA would be sending Margolin a bunch of documents
but he did not know what the documents were or when they would be sent.
He guessed seven days. Margolin also asked whether NASA would waive
legal service and accept a Complaint by USPS Express Mail. Mr. Harris
said, “No.” Only Certified mail. After Margolin told him about the
problem when he had sent NASA the letter of April 6, 2009 to Acting
Administrator Scolese (USPS never delivered it) Mr. Harris still said,
“No.” Margolin emailed Mr. Harris a letter asking him to confirm what
he had said in the telephone conversation. See Exhibit 10, Appendix A59.
20.
Margolin did not receive a reply from Mr. Harris. Instead he received
an email from Mr. Jan McNutt, who asked for a 20-day extension for NASA
to respond to Margolin’s FOIA Appeal. See Exhibit 11, Appendix A61.
Whereas Mr. Harris had promised NASA would be sending more documents,
Mr. McNutt did not. Since NASA had been acting in bad faith toward
Margolin for over six years and Mr. McNutt had already taken improper
advantage of the number of courtesies Margolin had extended to him
regarding Mr. McNutt’s actions in the FOIA request, Margolin said, “No”
to Mr. McNutt’s request for an extension. See Exhibit 12, Appendix A63.
NASA had failed to respond to his FOIA Appeal (or ask for an extension)
within the 20 day statutory period required by FOIA, and there was no
reason to believe NASA had changed course and was suddenly going to
start
acting in good faith.
21.
It is possible that Mr. Borda was being mendacious in his letter of
March 19, 2009 when he said that NASA had prior art to invalidate the
‘724 patent. See Exhibit 7,
Appendix A30. Otherwise he would have produced the
patent report, or at least listed the evidence, to prove his point. It
is
possible that Mr. McNutt’s request for an extension is to give NASA
time to look for some. Therefore, time is of the essence in compelling
NASA to respond now.
22.
Mr. Mike Abernathy of Rapid Imaging Software co-authored an article in
AUVSI’s Unmanned
Systems Magazine which presented a spurious
history of synthetic vision (Synthetic
Vision Technology for Unmanned
Systems: Looking Back and Looking Forward by Jeff Fox,
Michael
Abernathy, Mark Draper and Gloria Calhoun). See Exhibit 13, Appendix A66.
Margolin responded with the article Synthetic
Vision – The Real Story.
See Exhibit 14, Appendix A69.
Although the editor of AUVSI Magazine had promised Margolin the
opportunity to respond in the magazine, he later refused to even
mention the controversy about the Abernathy article. See Exhibit 15, Appendix A127. As
result, Margolin posted his response on his personal web site at
www.jmargolin.com .
Mr. Abernathy’s company provided the synthetic
vision software for the X-38 project (Exhibit
1, Appendix A3) which is why NASA should disclose their
contacts with Mr. Abernathy and his company regarding the I-222 claim,
the ‘724 patent, and NASA’s allegation that it has prior art to
invalidate the ‘724 patent.
Requested
Relief
WHEREFORE,
plaintiff respectfully requests that this Court:
A.
Order defendant to disclose requested
records in their entireties and provide copies to plaintiff, said
records to include the patent report alleged to exist, but
not provided in the Borda letter, and contacts between NASA
and
Mike
Abernathy (and/or Rapid Imaging Software and/or its employees and/or
agents);
B. Issue an Order finding that
defendant’s actions were in bad faith, arbitrary, capricious, and
contrary to law;
C. Provide for expeditious proceedings in
this action;
D. Award plaintiff his costs incurred
during the administrative proceedings and in this action; and
E. Grant such other relief as the Court
may deem just and proper.
Respectfully
submitted,
/Jed Margolin/
Jed Margolin, plaintiff pro se
1981 Empire Rd.
VC Highlands, NV 89521-7430
775-847-7845
jm@jmargolin.com
Dated: July 31, 2009
I filed the
Complaint on Friday morning July 31, 2009. It was immediately given the
case number 3:09-cv-00421.
As
a non-attorney I have to file a motion to use the Court's electronic
filing system (CM/ECF). In order to file a motion you have to first
file a Complaint. As a result, I filed the Complaint on paper.
August
1, 2009
The complaint
was scanned and appeared in Pacer the next day. (That was fast.) Anyone
can search Pacer (http://dockets.justia.com)
but you need a Pacer account to download documents. The good news is
that anyone can get a Pacer account. The bad news is that it costs
money to download documents.
Pacer:
The
Pacer files might not look great when viewed on-screen, but if you
print them out they look good. Indeed, considering the amount of data
compression that was used, they look very good.
These are
higher quality PDFs (with some color picture) made from the files I
used to write the Complaint:
I also split
the appendix into two smaller files, each less than 2 MBytes:
If you want to
see my NASA FOIA Appeal click here. It includes the FOIA
Appeal Appendix which contains all of the documents NASA produced in
response to my FOIA request.
August
5, 2009
From Pacer:
Document 2
Filed & Entered: 07/31/2009
Summons Issued as to USA
doc002.pdf
Filed & Entered: 08/03/2009
Assign Judges in Civil Case
Document
3 Filed:
08/03/2009
Entered:
08/05/2009
Motion for Pro Se Litigant to File
Electronically doc003.pdf
August
22, 2009
It was a busy
week.
On
Monday, August 17, I went down to the Reno Post Office to get
proof of delivery of the copies of the Summons and Complaint that
I sent to NASA and the Attorney General by Registered Mail.
Although I
paid for a Return Receipt (green postcard) I did not get one returned
from NASA and the one that was returned from the Attorney General was
not signed. It was stamped. The stamp is illegible except for
the
date: August 7. It was not delivered on August 7. The USPS
official records for the delivery of the documents show the signatures
of the persons receiving the documents and the date the mail was
delivered. They were delivered on August 6. Something here smells.
On Tuesday,
August 18, I went down to the Federal Building in Reno to file the
Proof of Service. See doc004.pdf
The
reason I had to make the trip is because my motion to allow me to
register for the Court's CM/ECF system (the Court's electronic
filing system) has not been acted on.
On Wednesday
morning, August 19, I was checking Pacer to see if there were any new
entries and I clicked on the wrong box. Instead of clicking on History/Documents I clicked on Docket
Report.
Docket
Report
contains more information than History/Documents.
The entry for
the day I filed the Complaint says:
| Date Filed |
# |
Docket Text |
| 07/31/2009 |
1 |
COMPLAINT against Charles F. Bolden, filed by Jed
Margolin. ($350.00
FILING FEE PAID 7/31/2009: RECEIPT #21577) Certificate of Interested
Parties due by 8/10/2009. Proof of service due by 11/28/2009.
(Attachments: # 1 Exhibits, # 2 Civil Cover Sheet)(PM) Modified on
7/31/2009 to clarify text(PM). (Entered: 07/31/2009) |
My
attention was drawn to the part that says, "Certificate of Interested
Parties due by 8/10/2009." Oops.
The Federal
Rules of Civil Procedure (http://www.uscourts.gov/rules/CV2008.pdf) Rule 7.1. Disclosure
Statement
says:
(a)
WHO MUST FILE; CONTENTS. A nongovernmental corporate party must file 2
copies of a disclosure statement that:
(1) identifies any parent
corporation and any publicly held corporation owning 10% or more of its
stock; or
(2) states that there is no such corporation.
(b) TIME TO FILE; SUPPLEMENTAL FILING. A party must:
(1)
file the disclosure statement with its first appearance, pleading,
petition, motion, response, or other request addressed to the court;
and
(2) promptly file a supplemental statement if any required information
changes.
(As added Apr. 29, 2002, eff. Dec. 1, 2002; amended Apr. 30, 2007, eff.
Dec. 1, 2007.)
However, in
the Local Court Rules for the District Court for the District of
Nevada, Rule LR 7.1-1 says:
LR 7.1-1.
CERTIFICATE AS TO INTERESTED PARTIES.
(a) Unless otherwise ordered, in all cases
except habeas
corpus cases counsel for private (nongovernmental) parties
shall identify
in the disclosure statement required by Fed. R. Civ. P. 7.1 all
persons,
associations of persons, firms, partnerships or corporations (including
parent
corporations) which have a direct, pecuniary interest in the outcome of
the
case.
The disclosure statement shall include the
following
certification:
"The undersigned, counsel of record for
______, certifies
that the following have an interest in the outcome of this case: (here
list the
names of all such parties and identify their connection and interests).
These
representations are made to enable judges of the Court to evaluate
possible
disqualification or recusal.
Signature, Attorney of Record for _______ "
(b) If there are no known
interested parties
other than those participating in the case, a statement to that effect
will
satisfy this rule.
(c) A party must promptly file a
supplemental certification
upon any change in the information that this rule requires.
(Local Court Rules are
at: http://www.nvd.uscourts.gov/Files/NVUSDistCtRules06Supp.pdf)
I
still don't think I needed to file a Certificate of Interested Parties,
but it was either that or file a motion to correct the Docket
Report.
So,
on Wednesday, August 19 I went down to the Federal Building in Reno
(again) to file CERTIFICATE AS TO INTERESTED PARTIES.
See doc005.pdf
Before
going to the Courthouse I went to the U.S. Attorneys Office (located a
block away from the Federal Building) to give them their copy.
I did not send
copies to NASA or the Attorney General. The reasons I did not send them
copies are:
1.
Both NASA and the Attorney General's Office have told me they
will not accept delivery of documents other than by mail. And
they will not accept USPS Express Mail;
2. The Post Office
can no longer be relied upon to do its job. They lose Certified
Mail and are not able to track it. They lose Return Receipts
from
Registered Mail. Getting Proof of Delivery for Registered Mail requires
another trip to the Post Office, and when the staff at the Post Office
see that I am next in line they close their windows and hide in the
back room;
3. There is only one Defendant (Charles F.
Bolden, NASA Administrator) and, until I am told otherwise, the U.S.
Attorney in Reno is his attorney.
By the way,
since both
NASA and the Attorney General refused to waive Service and insisted
that I use USPS to deliver the Summons and Complaint to them (except by
Express Mail), it can be argued that both NASA and the Attorney General
have designated USPS to be their Agent. Therefore, the Summons and
Complaint can be considered as having been served when I handed them to
USPS on August 1, not when USPS delivered them on August 6.
Something
interesting happened the week before last.
NASA
responded to my FOIA Appeal. It was dated August 5, mailed August 6,
and I received it August 10. They denied my Appeal.
Here is a PDF
scan of the letter: nasa_foia_appeal_response.pdf
I have used
OCR to convert it to text and make an html file: nasa_foia_appeal_response.htm
Here is the
timeline for NASA's letter:
July 31, 2009
Friday I
filed the Complaint. The
Pacer entry that I had filed the Complaint appeared later that
same
day.
August 1, 2009
Saturday The Complaint appeared in Pacer;
I mailed
the Summons and Complaint to NASA and the Attorney General.
August 3, 2009
Monday I filed the Motion to file
electronically. I
also personally delivered the Summons and Complaint to the Office of
the U.S. Attorney for the District of Nevada.
August 5, 2009
Wednesday The date on the letter from
NASA denying my FOIA Appeal.
August 6, 2009
Thursday
NASA mails their letter.
August 10, 2009
Monday I
receive NASA's letter.
It
is entirely reasonable to assume that NASA knew I had filed the
Complaint -either from Pacer or by being informed by the U.S. Attorney
for the District of Nevada- and had read the Complaint before they mailed their
letter denying my FOIA Appeal. Their letter was too little and too late.
There
is one more thing that is interesting about NASA's letter. My FOIA
Appeal was denied by Thomas S. Luedtke, Associate Administrator for
Institutions and Management. A Google search for Mr. Luedtke ("Thomas
S. Luedtke") produces a
large number of hits. Many of them relate to this story from CBS dated
October 22, 2007: http://www.cbsnews.com/stories/2007/10/22/travel/main3390456.shtml
which
starts out:
(AP)
Anxious to avoid upsetting air travelers, NASA is withholding results
from an unprecedented national survey of pilots that found safety
problems like near collisions and runway interference occur far more
frequently than the government previously recognized.
NASA
gathered the information under an $8.5 million safety project, through
telephone interviews with roughly 24,000 commercial and general
aviation pilots over nearly four years. Since ending the interviews at
the beginning of 2005 and shutting down the project completely more
than one year ago, the space agency has refused to divulge the results
publicly.
Just last week, NASA ordered the contractor that conducted the survey
to purge all related data from its computers.
The
Associated Press learned about the NASA results from one person
familiar with the survey who spoke on condition of anonymity because
this person was not authorized to discuss them.
A senior NASA
official, associate administrator Thomas S. Luedtke, said revealing the
findings could damage the public's confidence in airlines and affect
airline profits. Luedtke acknowledged that the survey results "present
a comprehensive picture of certain aspects of the U.S. commercial
aviation industry."
The AP sought to obtain the survey data over 14 months under the U.S.
Freedom of Information Act.
"Release
of the requested data, which are sensitive and safety-related, could
materially affect the public confidence in, and the commercial welfare
of, the air carriers and general aviation companies whose pilots
participated in the survey," Luedtke wrote in a final denial letter to
the AP. NASA also cited pilot confidentiality as a reason, although no
airlines were identified in the survey, nor were the identities of
pilots, all of whom were promised anonymity.
.
.
.
Here is the
NASA FOIA file for AP's request for the NAOMS (National
Aviation Operations Monitoring Service) study: http://www.governmentattic.org/docs/Track-info-FOIARequest_NASAAirSafetySurvey_2006-07.pdf
. Mr.
Luedtke's denial of AP's appeal starts on PDF page 182.
NASA produced
a redacted version of the study on December 31, 2007 and was criticized
for redacting it so heavily, such as in this blog by Christopher
Elliot: http://www.elliott.org/blog/redacted-nasa-airline-safety-study-released-sorta/ . Mr. Elliot is a
journalist who writes about travel. Among other things he is National Geographic
Traveler
magazine’s reader advocate and writes the nationally syndicated Travel
Troubleshooter column, which appears in
more than 50 U.S. newspapers and Web sites.
NASA's web
page for the NAOMS documents is here: http://www.nasa.gov/news/reports/NAOMS.html
I don't know
how many of the documents are still redacted. There are lots
of documents. The documents I have looked at seem to be complete. If
NASA had released these documents and not tried to hide them, I doubt
there would have been a political firestorm.
The question
is, what did NASA learn from this fiasco?
1.
Did they learn not to withhold information?
2. Did they learn to withhold information better?
3. Did they develop a bunker mentality?
So far, it
looks like the answers are: No, Yes, and Yes.
August
28, 2009
On
Monday, August 24, I filed a Motion to Correct the Docket Report. The
Docket Report says that the U.S. Attorney was not served. Yes, he was.
See doc006.pdf
My Motion
appeared on Pacer on August 27.
According
to the Docket Report Bolden/NASA has until September 11 to respond.
According to Local Rules, Parties have 15 days to respond to a Motion
but it isn't clear how this is calculated. September 11 is 15 calendar
days from August 27. It is 15 calendar days from August 26 if we give
them Labor Day off. If we give them Labor Day and weekends off (thus
counting only business days) it is 15 business days from
August
20. It looks like the 15 days are from when it appeared in Pacer,
except I personally delivered the Motion to the U.S. Attorney's Office
on August 24. Since my Motion to be allowed to file electronically has
not been heard yet, the U.S. Attorney gets two extra days to
respond.
Presumably,
Bolden/NASA will be represented by the U.S. Attorney. If the U.S.
Attorney objects to having the Docket Report corrected I will know that
I am in for a very dirty fight.
September
4, 2009
My Motion for
permission to register for and use the Court's CM/ECF system was
granted. on August 31. See doc007.pdf
September
13, 2009
It looks like I am
in for a very dirty fight, but not for the reason I thought.
The
U.S. Attorney for the District of Nevada will be defending NASA. This
is not a big surprise but it is disappointing. The U.S. Attorney is
supposed to work for the People of the United States.
Instead, he
(she) is defending an Agency which refuses to follow the Law. I say "he
(she)" because, although the U.S. Attorney for the District of Nevada
is Gregory A. Brower, the case is being handled by Assistant U.S.
Attorney Holly A. Vance.
The U.S. Attorney did not oppose my motion to correct the Docket
Report. See doc008.pdf
However, he (she) filed a Motion to Dismiss based on the theory that:
A.
This action should be dismissed because individual agency officials are
not proper defendants in actions under the Freedom of Information Act
("FOIA").
See doc009.pdf
Hmmm.
September
25, 2009
As a result of the U.S. Attorney's Motion to Dismiss, the Court
issued a Klingele Minute Order informing me of the
requirements of Klingele
v. Eikenberry. See doc010.pdf
The second paragraph appears to
apply to this case:
Pursuant
to the last sentence in
Fed. R. Civ. P. 12(b), if evidence is submitted with a motion to
dismiss and
considered by the court, then the motion will be treated as a motion
for summary
judgment. The same is true regarding a motion for judgment on the
pleadings.
See Fed. R. Civ. P. 12(c). This notice
is issued, in part, to alert the plaintiff that if defendants
have submitted evidence in support
of a motion to dismiss or a motion for judgment on the pleadings, then
the
court may treat the pending motion as a motion for summary judgment. If
the
court grants summary judgment, then judgment may be entered against
plaintiff
and this lawsuit will end without trial. This notice contains
important
information about what you need to do to oppose the motion. Please read
it
carefully.
It
looks like the U.S. Attorney's Motion to Dismiss must also be
treated as a Motion For Summary Judgment.
However,
since the U.S. Attorney hasn't Answered the Complaint yet, it
put me in the awkward position of having
to respond to legal arguments that, technically, had not yet been made.
When life hands you lemons, make lemonade. So I did.
I filed a Memorandum of
Points and Authorities In Support of Plaintiff's Opposition to Motion
to Dismiss.
See doc011-1.pdf
Memo of Opposition
See doc011-2.pdf
Memo of Opposition Appendix
I also filed a Motion
For Leave to File an Amended Complaint. If amending the
Defendant makes everyone happy, fine.
Since NASA sent me their Denial of my Appeal only after I filed the
Complaint I added that, too.
And I corrected a few minor things in my Complaint, like I forgot to
add the section Cause of
Action. (Actually, that was a major thing.)
A Motion for Leave to File an Amended Complaint must be accompanied by
the proposed Amended Complaint.
See doc012-1.pdf
Motion For Leave to File an Amended Complaint
See doc012-2.pdf
First Amended Complaint
See doc012-3.pdf
Appendix-1 (1.6 MBytes)
See doc012-4.pdf
Appendix-2 (2 MBytes)
It
was necessary to split the Appendix into two files because there was a
file size limitation of 2 MBytes. I have since been told that
the
file size limitation has been increased to 5 MBytes.
I used
the Court's CM/ECF system. It's a good, easy-to-use system. However, as
a non-attorney I had to file a Motion to get permission to use it. (My
Motion was granted in doc007.pdf .)
The
court's CM/ECF system added the header to each page but did not do
anything else to the files. The files in Pacer are essentially the
files I uploaded. That's good because I took special care to produce
high quality files. I have written about making PDF files in
a separate article: MakingPDF.htm
September
26, 2009
When you read legal briefs and Court opinions they always have those
cryptic references to other cases.
The reason is stare
decisis.
I talk about stare
decisis
in the introduction to a page of cases I have posted because
they
have either been cited in my FOIA case or because I found them useful
or interesting.
Most of the cases listed are downloadable.
Click here for FOIA Cases and Statutes.
October
9, 2009
On October 7, the U.S. Attorney filed a Response to my Opposition to
Motion to Dismiss (doc011-1.pdf)
See doc013.pdf
On October 9, the U.S. Attorney filed a Non-Opposition to my Motion For
Leave to File an Amended Complaint (doc012-1.pdf)
See doc014.pdf
November
9, 2009
On November 3 the Court issued an order granting my Motion to
Correct the Docket Report (doc006.pdf).
See doc015.pdf
December
21, 2009
On November 16, 2009 I received two boxes of documents from
NASA.
According to NASA there are about
4,000 pages of documents.
NASA originally said that only 100
pages of documents were
being withheld.
They are not in any particular order.
There is no index.
There are many duplicates. Although
the
pages are numbered the numbers are frequently illegible. There are gaps
in the
numbers indicating that sections were entirely withheld, usually in the
most
interesting parts. Is NASA really this disorganized?
The pages run from 00017 to 05605
indicating that around
1600 pages were entirely withheld. Many of the emails are redacted.
Sometimes
the entire body of the email is redacted under
§
552 (b)(5) [Deliberative Process, etc.]. That is what this
entire case is about.
However, by providing the documents (such as they are) it probably
means NASA
does not have to provide a Vaughn Index or provide them to the Court
for
in-camera inspection (or appoint a Special Master to review them). This
places
the entire burden on me. I might have to place all 4,000 pages in an
Appendix for
a Motion to Amend my Complaint.
The
documents were in roughly equal sections, held
together by what appear to be the secret (but long rumored to exist)
Advanced
Propulsion Unit Prototypes (APUPs) left over from a cancelled (but
really, now black) project. I hope
NASA has filed for patent protection for the APUPs lest someday someone
knock
on their door claiming to have invented them first. For
a picture click here.
I have scanned all the documents and expect to post them here
eventually.
December
22, 2009
I filed my MOTION FOR LEAVE TO FILE AMENDED
COMPLAINT today.
This is for my Second Amended Complaint which is necessary because of
the documents NASA sent me.
I
have made an html version of the Second Amended Complaint for easy
online reading. The Pacer PDF is the controlling document.
Some people will be angry at NASA because of how they have acted.
Some people will be angry at me for shining a light on them.
December 23, 2009
I am posting the 4,000 or so pages I received from NASA on
November 16.
In order to make the documents more manageable I have
separated them into volumes. Sometime I separated them at a natural
break in
the material. Sometimes I had to separate them because of sheer size.
The following is not a complete index, just what caught my
attention.
Click here for the index.
January
21, 2010 - Status Report
Defendant's Motion to Dismiss (doc009.pdf)
was still pending. Motions have to be ruled on even when they are moot.
Notice of Electronic
Filing
The following transaction
was entered on 1/13/2010 at 2:56 PM PST and filed on
1/13/2010
Case Name:
Margolin
v. Bolden
Case Number:
3:09-cv-00421-LRH-VPC
Filer:
Document Number: 20 (No document attached)
Docket Text:
MINUTE
ORDER IN CHAMBERS of
the Honorable Judge Larry R. Hicks on 1/13/2010. By Deputy Clerk:
Rosemarie
Miller. RE: [9] MOTION to Dismiss. A telephonic status conference with
regard
to defendant's motion to dismiss is scheduled on January 19, 2010 at
1:30 PM in
Reno
Courtroom
5 before Judge Larry R. Hicks. The Court will initiate the call. If the
parties
wish to be contacted at telephone numbers other than those listed on
the docket
sheet, they should contact Rosemarie Miller at 775-686-5829 no later
than 24
hours prior to the hearing. (no image attached) (Copies have been
distributed
by NEF - RM)
And it was worked out.
Notice of
Electronic Filing
The following transaction was entered on 1/19/2010 at 3:57 PM PST and
filed on 1/19/2010
Case Name:
Margolin
v. Bolden
Case Number:
3:09-cv-00421-LRH-VPC
Filer:
Document Number: 21 (No document attached)
Docket Text:
MINUTES
OF PROCEEDINGS - Status Conference held on 1/19/2010 before Judge Larry
R. Hicks. Crtrm Administrator: Rosemarie Miller;
Pla Counsel: Jed Margolin, In Pro Per; Def Counsel:
Holly Vance; Court Reporter/FTR #: Donna
Davidson; Time of Hearing: 1:31 p.m. - 1:39 p.m.;
Courtroom: 5. Court convenes. The parties are
present telephonically. The Court and the parties confer with regard to
the status of the pending Motion to Dismiss [9] filed by defendants.
With no objection by either party, IT IS ORDERED that the Motion to
Dismiss is considered moot and is dismissed without prejudice to renew.
Court adjourns. (Copies have been distributed by NEF - RM)
March
5, 2010 - Status Report
After
the Status Conference on January 19 I had a nice conversation with
Assistant U.S. Attorney Holly Vance. Afterwards I filed WAIVER
OF
SERVICE BY DEFENDANTS OF PLAINTIFF’S SECOND AMENDED COMPLAINT.
See doc022.pdf
Waiver of Service by Defendants of Plaintiff's Second Amended Complaint
On March 1, 2010 I received DEFENDANTS’ MOTION TO DISMISS.
COME
NOW Defendants National Aeronautics and Space Administration (“NASA”)
and NASA Administrator Charles F. Bolden (“Bolden”) and move to dismiss
Bolden from this action. This motion is made pursuant to Fed. R. Civ.
Proc. 12(b)(1).
See doc023.pdf
This was followed shortly afterwards by a MINUTE
ORDER IN CHAMBERS REGARDING THE REQUIREMENTS OF Klingele v. Eikenberry and Rand
v. Rowland.
See doc024.pdf
The requirements of Klingele
v. Eikenberry and Rand v. Rowland are that if the Motion
to Dismiss contains evidence, it must also be treated as a Motion for
Summary Judgment.
On March 5, I filed a RESPONSE TO MINUTE ORDER IN CHAMBERS
REGARDING THE
REQUIREMENTS OF Klingele v. Eikenberry and Rand
v. Rowland (#24),
where I said:
Defendants' Motion to
Dismiss raised only
a legal issue – a jurisdictional challenge; the motion did not include
the submission of any evidence. Therefore, it should not be considered
a Motion for Summary Judgment.
See
doc025.pdf
I also filed NON-OPPOSITION TO
DEFENDANTS’ MOTION TO DISMISS BOLDEN (#23):
While
Margolin continues to believe that the Head of a Federal Agency, in his
or her official capacity as the Head of that Agency, is the proper
party to name as the Defendant in any action against the Agency as a
way to emphasize that
the people of an Agency are the Agency, and that Agencies should not be
allowed to be faceless, Margolin does not oppose Defendants’ Motion to
Dismiss Charles F. Bolden, in his official capacity as Administrator,
National Aeronautics and Space Administration, from this action
(#23).
This leaves the National Aeronautics and Space Administration as the
remaining Defendant.
See doc026.pdf
The
reason I am not fighting to keep General Bolden in the case is because
that is not what this case is about. It's about how NASA treats
Independent Inventors.
I discussed what an agency
is in doc011-1.pdf
(Memo of Opposition) and doc011-2.pdf
(Memo of Opposition Appendix).
This thing about having to name the agency and not the
Head of the agency in a Freedom of Information Act action is a trap for
the inexperienced. Now I know better.
March
10, 2010
The
4,000 (or so) pages of documents that NASA sent me in November 2009
show that after I gave NASA a 90 day extension to respond to my FOIA
Request in July 2008 they spent some of it getting Court documents in
the following lawsuit:
|
UNITED
STATES DISTRICT COURT
DISTRICT
OF ARIZONA
NO.
CV-00588-RC
UNIVERSAL
AVIONICS SYSTEMS CORPORATION
vs.
OPTIMA
TECHNOLOGY GROUP, INC., ET AL.
|
Why
NASA thought the Court documents in this case were relevant to my FOIA
Request is a mystery. I had not asked NASA for the Court documents. I
didn't need to. I already had them because I had been a Defendant.
By the time NASA became interested in the case some of the documents
had been sealed but many were still available.
NASA
chose to include only one material Court document in the 4,000 (or so)
pages they sent me: Universal Avionics Systems Corporation's SECOND
AMENDED COMPLAINT.
[This section revised 10/20/2010]:
Originally I posted all of the Pacer documents in the case so people
could see both sides. However, it has been brought to my attention that
people aren't looking at both sides. They are reading only UASC's
Second Amended Complaint, and that's not fair. They should see our side
(I was a Co-Defendant), so now I am being more selective.
1. See Amended Answer, Counterclaims,
Cross-Claims, and
Third Party Claims of Optima Technology Group. If you want
to know what the case was really about see paragraph 93 on page 30. Click here.
(Our attorneys at Chandler &
Udall, especially Ed Moomjian, have a gift for turning a phrase.)
2. Note that the paragraph refers to "OTC". OTC is Optima
Technology Corporation, who tried to steal the patents. This is not
Optima Technology Group (referred to as "Optima"), whom I assigned the patents to.
The Court set things straight in Document 31: (Click here):
Final Judgment is entered
against Cross-Defendants Optima Technology Corporation, a California
corporation, and Optima Technology Corporation, a Nevada corporation,
as follows:
1. Optima Technology Corporation has no interest in U.S. Patents Nos.
5,566,073 and 5,904,724 (“the Patents”) or the Durable Power of
Attorney from Jed Margolin dated July 20, 2004 (“the Power of
Attorney”);
2. The Assignment Optima Technology Corporation filed with the USPTO is
forged, invalid, void, of no force and effect, and is hereby struck
from the records of the USPTO;
3. The USPTO is to correct its records with respect to any claim by
Optima Technology Corporation to the Patents and/or the Power of
Attorney; and
4. OTC is hereby enjoined from asserting further rights or interests in
the Patents and/or Power of Attorney; and
5. There is no just reason to delay entry of final judgment as to
Optima Technology Corporation under Federal Rule of Civil Procedure
54(b).
DATED this 18th day of August, 2008.
One of the threads that run through my FOIA case with NASA is that
they continue to assert that Optima Technology Corporation owns the
patents, in defiance of the Court's order.
3. The UASC case opened a new chapter in TomCat history. Click here.
March 12, 2010
In view of my Non-Opposition (doc026)
to Defendants' Motion to Dismiss Bolden as a Defendant (doc023) their Motion to
Dismiss Bolden as a Defendant was granted.
That leaves NASA as the Defendant.
In other news:
I filed another Freedom of Information Act Request with NASA in
December. They tried to ignore it but I was persistent.
They eventually responded.
Their response was woefully inadequate so I filed an Appeal with NASA.
I mailed it on Tuesday (March 9) and it was delivered yesterday
(Thursday).
The
(second) FOIA Request is not directly related to the current lawsuit,
but it is related to how NASA treats Independent Inventors.
If
it becomes necessary to sue NASA over this second FOIA Request I will
probably blog it separately to avoid confusion. Since the Appeal will
be decided by the same people who decided not to send me any material
documents in response to my FOIA Request, a second lawsuit is likely.
April 21, 2010
Filed March 19, 2010
Stipulated Schedule For
Filing Answer and Dispositive Motions
Filed March 23, 2010
Ordered - Stipulated
Schedule For Filing Answer and Dispositive Motions
Filed April 12, 2010
NASA's Answer to Second
Amended Complaint
I have converted it to html to make it easier to read online:
I
have created an html file that matches the Answers to the paragraphs in
my Second Amended Complaint. I have made a substantial effort to
accurately match the sections in the paragraphs to the sections in the
Second Amended Complaint.
Here are some of the items in NASA's Answer that jump out at me:
1.
My good friend Jan S. McNutt (NASA attorney) has left NASA.
As
a result, he does not have to cooperate with the NASA Inspector General
if the Inspector General wanted to ask him some questions.
Does anyone know where Jan went?
I would also like to know where Alan J. Kennedy went after he left NASA.
2.
The Borda Report asserted that:
“…
numerous pieces of evidence were uncovered which would constitute
anticipatory prior knowledge and prior art that was never considered by
the U.S. Patent and Trademark Office during the prosecution of the
application which matured into Patent No. 5,904,724.”
and threatened:
“…
NASA reserves the right to introduce such evidence of invalidity in an
appropriate venue, should the same become necessary.”
NASA now admits there is no
patent report.
From NASA Answer Paragraph 16:
"Defendant
denies the allegations contained at page 7, lines 4-5 of this paragraph
and denies that any document that could constitute a “Borda Patent Report” was ever
prepared, much less withheld."
Simplified:
In order to invalidate a patent using prior art you have to show that
all of elements in a claim are present in the prior art. You are
allowed to use more than one reference if you can show it
would be
obvious to combine the references. If you knock out all of the
claims in a patent, then you have invalidated the patent.
That is what a patent report is. If you don't have that, then you are
full of beans. NASA is full of beans.
3.
NASA admits that it does not know what Synthetic Vision is.
4.
NASA's Answer ends with:
WHEREFORE, Defendant prays
for judgment as follows:
1. That judgement be
entered in favor of Defendant
and against Plaintiff;
2. That Plaintiff take nothing by way of his complaint;
3. For costs of suit; and
4. For such other relief as may be proper.
NASA wants me to pay their legal expenses.
Is there any precedent for this in a Freedom of Information Act
lawsuit, or for any other Government lawsuit?
The Government already has an unlimited amount of money to spend to
defend NASA. (They get it from you and me.)
I don't see anything in the Freedom of Information Act that tells you
if
you sue the Government and lose, then you will probably lose everything
you have.
April 23, 2010
Yesterday, April 22, I received NASA's decision on my appeal of their
response to my second FOIA Request.
Their response to my Second FOIA Request was woefully inadequate so I
filed an Appeal with NASA.
They denied my Appeal.
I used OCR to convert it to html.
The decision was made by Thomas S. Luedtke ("Luedtke"), NASA Assistant
Administrator for Agency Operations.
Luedtke's name has come up before.
1. He denied my Appeal in my First FOIA Request but only
after I filed the current lawsuit.
2.
He denied the Associated Press's FOIA Request for the results
of
a national survey of pilots that found safety
problems like near collisions and runway interference occur far more
frequently than the government previously recognized. NASA had withheld
the report in order to avoid upsetting air travelers. I discussed this
previously. Click Here.
At the end of that section I asked:
The question is, what
did NASA learn from this fiasco?
1.
Did they learn not to withhold information?
2. Did they learn to withhold information better?
3. Did they develop a bunker mentality?
The answers are definitely: No, Yes, Yes.
Here are some of the highlights from Luedtke's denial of my
appeal in my Second FOIA Request.
1. NASA does not know what an Independent Inventor is.
NASA:
There are no responsive records to items 3, 4, 5 and 8
because
the search revealed no Agency records which refer to Agency use of the
category "Independent Inventors."
When I talked to Alan J.
Kennedy in June 2003 he knew what an Independent Inventor is. (He had
some very unkind things to say about us.) Mr. Kennedy has since retired
from NASA and has apparently taken that knowledge with him.
2. NASA does not know how many patent claims filed against it
were affirmed or denied.
NASA: Items
2 and 6 request the number of patent claims affirmed and denied by NASA
respectively during the relevant period. As you note in your appeal,
the log provided as item 1 is incomplete as to the disposition of the
claims identified therein. The log was provided as it is maintained by
the Agency. Because the Agency is not required to create new records in
response a FOIA request, there are no Agency records which enumerate
the information requested in items 2 and 6.
3. NASA does not know how many times it has been sued for
patent infringement.
NASA:
There are no responsive records to item 7 because the search
revealed no records which enumerate Court actions resulting from claims
for patent infringement denied by NASA.
NASA should remember at least this one involving Boeing: http://www.uscfc.uscourts.gov/sites/default/files/ALLEGRA.Boeing040209.pdf
In The United States Court
of Federal Claims, No. 00-705C (Filed Under Seal: March 16, 2009)
Reissued: April 2, 2009
THE BOEING COMPANY, Plaintiff, v. THE UNITED STATES, Defendant.
Trial;
28 U.S.C. § 1498; Damages owing to infringement of patent by NASA in
developing super lightweight external tank for Space Shuttle;
Hypothetical licensing agreement; Georgia Pacific factors; Reasonable
royalty rate; Impact of prior licensing agreements involving
same
patent; Royalty base; Entire market value rule; Reliance on prior
licensing agreements; Prejudgment interest; Compounding of interest.
NASA lost.
4. NASA
does not have a written procedure for administratively reviewing a
claim of patent infringement. They had one at one time but now they
can't find it.
NASA:
Although in item 9 you failed to identify a particular GAO
report, NASA Headquarters Office of General Counsel identified GAO
Administrative Review B-285211, NASA's Administrative Review of a
Patent Infringement Claim, dated August 8, 2000, which states that the
GAO reviewed NASA's procedures for administratively reviewing a claim
of patent infringement as attached to a September 29, 1987 letter. As
confirmed by the document quoted at page 13 of your appeal, the NASA
Headquarters Office of General Counsel did not have a copy of the
attachment as of January, 2009. The search revealed that no copy of the
attachment has been located since that time.
Apparently,
if you file a claim against NASA for patent infringement the NASA
attorney handling your case acts according to his/her own whims. Or
perhaps there is a short unwritten policy that just says,
"Deny
the Claim."
Also, when I filed
my Second FOIA Request I attached the GAO Report. When NASA refused to
read it I sent it again. Thinking that perhaps NASA's mail servers
reject emails with attachments I sent it without the attachment. I
included the GAO Report “NASA’s Administrative Review of a Patent
Infringement Claim, August 8, 2000 in the Appendix to my Appeal.
NASA seems to lose lots of things. For example, in my article NASA’s Continuing Lack of
Accounting Controls (http://www.jmargolin.com/nasa/actn/nasa_accounting.htm)
we learn that in 2008
NASA was unable to account for capital assets with an acquisition cost
of about $32 Billion (with a net value of about $18.6 Billion).
5.
The above referenced GAO Report referred to NASA's Director
of
Patent Infringement so I asked who that person is. It appears that
either NASA doesn't have one or he is practicing how not to be seen.
NASA:
There are no responsive records to item 10. In your appeal, you make a
new request and state that if no one has the title of Director of the
Infringement Division, you request the identity of the person who
performs that function. The current functional structure of the
Commercial and Intellectual Property Law Practice Group in the NASA
Headquarters Office of General Counsel is available at http://www.nasa.gov/offices/ogc/commercial/index.html.
This is what that link produces:
The
Commercial and Intellectual Property Law Practice Group is responsible
for providing legal advice in support of NASA's commercial,
commercialization and intellectual property related programs. The
Practice Group provides functional leadership in negotiating, drafting,
and interpreting NASA Space Act Agreements, and partnering arrangements
with commercial organizations. It also develops, coordinates,
implements, and administers NASA's Intellectual Property Program, and
provides functional leadership to all Offices of Chief Counsel at NASA
Centers in the areas of patents, copyrights, trade secrets, technical
data in contracts, grants, cooperative agreements, and the distribution
of computer software. The Practice Group also provides legal advice and
counsel involving issues related to commercialization of NASA
activities, and coordinates such matters in the international arena
with the International Law Practice Group.
Space
Act Agreements are authorized by the National Aeronautics and Space
Administration Act of 1958, a Federal statute. The Practice Group has
primary responsibility for the NASA policy implementing this unique
authority, as well as for maintenance of the NASA Space Act Agreements
Manual. Space Act Agreements include mutually beneficial activities
that further NASA missions where there are no exchange of funds
("non-reimbursable" agreements) or undertakings for the benefit of the
non-NASA party, and where NASA costs are borne by the non-NASA party
("reimbursable" agreements).
The
Intellectual Property division of the Practice Group performs under the
direct cognizance of the Agency Counsel for Intellectual Property. It
provides functional guidance with respect to patent solicitation to
ensure application of uniform criteria Agency-wide relative to
invention reporting, patent application preparation, and filing and
conduct of proceedings before the United States Patent and Trademark
Office. In addition, the division develops and supports the
implementation of policies and procedures related to patent and
copyright licensing so that uniform criteria are applied NASA-wide and
to ensure the maximum beneficial use of patented and copyrighted
technology. The Intellectual Property division supports Department of
Justice litigation efforts, licensing, handling infringement-related
administrative claims, review of Freedom of Information Act requests
concerning technical data and computer software, trademark
applications, and handles negotiation and review of intellectual
property provisions for Space Act Agreements.
| Associate
General Counsel (Acting) |
Courtney
Graham |
| Agency
Lead IP Attorney |
Gary
G. Borda
Tel: 202-358-2424
Fax:
202-358-4341
|
| Legal
Technician: |
Kathy
Bayer |
| Attorney
Staff: |
Jan
McNutt
Margaret
Roberts
Robert
Rotella
|
For more
information about the Office of the General Counsel Organization visit:
› OGC Organization
OGC
Disclaimer: The materials within this website do not constitute legal
advice. For details read our disclaimer.
I
don't see anyone with the title Director
of the Infringement Division or anyone who might
perform that function.
I don't see an Infringement
Division.
Luedtke blew me off.
And note that the page still lists Jan McNutt as Attorney Staff even
though Mr. McNutt has left NASA.
Either NASA's OGC practices incredibly sloppy record-keeping or they
are lying.
June 9, 2010
I filed my Motion For
Summary Judgment and Memorandum of Points and Authorities
today.
If you are pressed for time, these are the
documents to read in the case. At least for now.
For an html version of the Motion For Summary Judgment and
Memorandum of Points and Authorities click here.
There
are some formatting differences from the PDF version. The html
file was made from my original MS Word documents.
Also, the
PDF version is the Pacer version.
September
9, 2010
On
September 7 Holly filed her Opposition to Motion for Summary Judgment
and Cross-Motion for Summary Judgment. There are a lot of documents.
There is a duplicate set of documents. I was told it was because Holly
combined her Opposition
to Motion for Summary Judgment with her Cross-Motion for Summary Judgment
and the Court's system has separate categories for each type of
document.
Exhibit
I (Margolin FOIA Withheld Index) is especially interesting. I am amazed
by how much time and effort NASA has spent on this over the years. This
must have cost NASA a bundle. They probably could have bought the
patents from me in 2003 for less than what they have spent trying to
destroy the patents (and me). But they never asked how much I wanted
for the patents.
Now that I no longer own the patents, that ship has sailed. (Or, maybe,
that rocket has launched.)
September
19, 2010
NASA's Exhibit I -
Margolin FOIA Withheld Index (doc044.pdf)
is a fascinating document. Unfortunately, it is a scanned document
(image only) so it is not text-searchable. To remedy this I
have
used OCR to convert it to text.
Then
I made a MS Word
document. From that I made an html file and a PDF file. This PDF file
is different from the PDF that NASA filed because mine is
text-searchable. There may be OCR errors that have escaped my
proofreading, so refer to the original document before quoting. Why did
I spend time on this? It shows how NASA treats Independent Inventors.
Errors in the
original document have been left uncorrected. ("administrative" is
sometimes spelled "admininstrative"
and "forward" is sometimes spelled "foward")
September
21, 2010
For the cases cited in NASA's Opposition to Motion for Summary
Judgment and Cross-Motion for Summary Judgment Click Here.
October
4, 2010
Today
I filed my Reply to NASA's Opposition to my Motion for Summary Judgment
and my Opposition to NASA's Cross-Motion for Summary Judgment.
I think I'll take a nap now.
Wake me up for Thanksgiving.
November 9, 2010
Holly woke me up early.
On November 1, 2010 she filed the following:
[NASA] Motion to Strike
I converted it to html:
GOVERNMENT'S REPLY
I converted it to html:
Exhibits for doc052:
On November 8, 2010 I filed the following:
Motion Requesting Leave For Excess Pages
Opposition to Motion to Strike and Motion Requesting Leave to File Declaration
Motion to Strike Government's Reply
I expect I will have more to say about it sometime.
November 24, 2010
On November 9, 2010 my Motion Requesting Leave for Excess Pages (#53) was granted.
Holly filed her REPLY TO
OPPOSITION TO MOTION TO STRIKE AND OPPOSITION TO MOTION REQUESTING LEAVE TO
FILE DECLARATION on November 16.
She said some very harsh things, so I have converted it to html using OCR to make it text searchable.
November 26, 2010
Holly filed her OPPOSITION TO MOTION TO STRIKE (#55) today.
The document is already text-searchable because it was produced by Corel PDF Engine Version 1.14.0.755 .
Several of her previous filings were produced by scanning the documents using a Canon iR8070. See, for example, Document 52.
To make that document text-searchable I had to use OCR and do considerable proof-reading.
December 3, 2010
On
November 30, 2010 Holly filed a Notice of Errata to correct what
she described as an error in Document 59 (Opposition to Motion to
Strike).
I don't see anything in the Federal Rules of Civil Procedure or the Local Rules that permit such a thing.
It must be an Undocumented Privilege.
I wonder if there are more Undocumented Privileges.
In any event, today I filed my Reply to Holly's Opposition to my Motion to Strike.
April 21, 2011
It's been awhile since my last update and several things have happened.
Basicially, I lost.
From the Court's decision:
IV. Conclusion
For
the foregoing reasons, the court concludes that NASA is entitled to
judgment as a matter of law as to the withholding and redaction of
information under Section 552(b) of the Freedom of Information Act,
with the exception of the document identified at line #252 of the Index
of withheld documents. As to that document, NASA has failed to carry
its burden of establishing the applicability of a statutory exemption
from disclosure, and Margolin is therefore entitled to its release.
IT IS THEREFORE ORDERED that Defendant’s Motion to Strike (#51) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File Declaration (#54) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike (#55) is DENIED.
IT
IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment (#32)
is GRANTED in part and DENIED in part as specified in this order.
NASA's Motion to Strike (#51) was denied.
My Motion to Strike (#55) was denied.
My Motion for leave to file the required Declaration (#55) was granted.
My
Motion For Summary Judgment (#32) was granted in part and denied in
part. Actually it was totally denied except for one document, a
document that appears to be irrelevent and NASA asserts was included by
mistake..
The Court ruled that NASA was entitled to redact and withhold all the other documents.
Here is the Court's decision (March 31, 2011):
And the Judgment Sheet:
But, it's not over.
There is the matter of the 4,000 pages of documents that NASA sent me in November 2009.
They would not have sent me the documents if it hadn't been for this lawsuit.
I think I substantially prevailed.
So
I filed a Motion For Costs (April 3, 2011). It's not for much, just things like the
filing fee, postage, copying costs, PACER costs, and driving costs to
go to the Nevada Supreme Court Law Library in Carson City to read the
Franklin book Guidebook to the Freedom of Information and Privacy Acts
2d Ed; Justin D. Franklin and Robert F. Bouchard (Editors), Thomson
Reuters. It's a great book but too expensive to buy from Thomson
Reuters http://west.thomson.com/productdetail/2525/13514269/productdetail.aspx
($366). There are some old editions available on the Web,
such as the 1986 edition for $20.90, but I don't advise using a 25 year
old law book unless you are a Law Historian..
Another reason
I needed to go to the Nevada Supreme Court Law Library so often was to
look up all of the unpublished (and mostly old) cases that
Holly is so fond of citing.
I don't get to charge for my time.
My main argument for asking for costs is that:
J.
The approximately 4,000 pages of documents, as well as NASA’s
behavior during this lawsuit, give a valuable look into how Government
(especially NASA) works. And that is the purpose of the Freedom of
Information Act.
Holly doesn't agree, so she filed RESPONSE TO MOTION FOR COSTS (#64) (April 20, 2011)
I have converted it to html:
Since
Holly opposed my Motion For Costs I think it should have been called
Opposition to Motion For Costs, but she called it a Response.
That means that my Response will have to be called "Response to NASA's Response to Motion For Costs" which is awkward phrasing.
And, we have another affidavit by Courtney Graham.
I will be filing my "Response to NASA's Response to Motion For Costs" soon.
BTW, on April 20, 2011 a Google search for NASA FOIA lawsuit puts this article/blog at #12 on the hit list. For Google hits on April 20 click here. I must be doing something right.
April 25, 2011
Today I filed my Response to NASA's Response to My Motion For Costs
It is a microcosm of the case so I will reproduce most of it here.
.start
Argument
A. The issue of
whether or not Margolin has substantially prevailed in this case is not about
the single two-page letter (“Calvert Letter”) that NASA was ordered to produce.
(#65, page 2, lines 4-11 and #62 page 16, lines 11-23). Nonetheless, the
Calvert Letter (apparently reproduced in Graham Declaration #65-1) is
probative. In it NASA tells Calvert (#65-1 page 6):
(1)
Prior art has been brought to my attention that was not reported to the
United States Patent and Trademark Office by you.
However, NASA fails to say how the
prior art is relevant. NASA doesn’t even name it. This is the same tactic used
by Borda (#19-1 page 51):
“… numerous pieces of evidence were
uncovered which would constitute anticipatory prior
knowledge and prior art that was
never considered by the U.S. Patent and Trademark Office during the prosecution of the
application which matured into Patent No. 5,904,724.”
Borda’s threat is, however, more
explicit (Id.):
“… NASA reserves the right to
introduce such evidence of invalidity in an appropriate venue, should the same
become necessary.”
It is the beginning of a pattern showing
how NASA deals with independent inventors.
Indeed, in the Graham Declaration
(#65-1 ¶5) she states:
“The December 4, 2002 draft letter
to W. Calvert was provided by Ms. Bayer to Mr. McNutt to use as a template in
drafting the final determination in Case I-222, the claim that was the subject
of Plaintiff’s FOIA request.”
Thus, NASA’s template for
responding to independent inventors’ claims for compensation contain the
perfunctory statement that, “Prior art has been brought to my attention that
was not reported to the United States Patent and Trademark Office by you.”
An allegation that prior art exists
can damage a patent’s value, especially when:
1. The allegation is made by NASA;
2. The allegation fails to provide even the name
of the alleged prior art.
This is not only bad faith on
NASA’s part, it is reprehensible and repugnant.
B. The issue of
whether or not Margolin has substantially prevailed in this case is not about
the Court’s decision to allow NASA to withhold the documents they have withheld
(for example, #62 page 16, lines 2 - 10).
The issue of whether or not Margolin has substantially prevailed in this
case is about the approximately 4,000 pages of documents that NASA voluntarily
produced in November 2009, and whether the results of this case have given the
public a greater understanding of how their Government works.
1. 5 U.S.C. 552 § (a)(4)(E) states:
(i) The court may assess against
the
United States
reasonable attorney fees and other litigation costs reasonably incurred in any
case under this section in which the complainant has substantially prevailed.
(ii) For purposes of this
subparagraph, a complainant has substantially prevailed if the complainant has
obtained relief through either -
(I) a judicial order, or an
enforceable written agreement or consent decree; or
(II) a voluntary or unilateral
change in position by the agency, if the complainant's claim is not
insubstantial.
The production of the approximately
4,000 pages of documents that NASA produced represents a substantial change in
NASA’s position.
a. Margolin filed a claim for compensation in
June 2003. (See #62, page 1, lines 23-25).
b. NASA did not respond to the claim until after
Margolin filed a FOIA request. (Margolin filed the FOIA request in June 2008 -
See #62, page 3, lines 10 - 14; NASA did not respond to Margolin’s claim until
May 2009 - See #62, page 3, line 15.)
c. NASA did not respond to Margolin’s FOIA administrative
appeal until after he filed the present action. (Margolin filed his
administrative appeal with NASA in June 2009 -
See #62, page 4, lines 25 - 26; He filed the present action on July 31,
2009 - See #1, page 1; NASA responded to Margolin’s administrative appeal on
August 5, 2009 - See #62, page 4, lines 11 -12.)
d. NASA’s production of the approximately 4,000
pages of documents was a voluntary and unilateral change in NASA’s position.
Margolin was surprised that NASA produced the documents without an order from
this Court.
NASA has failed to address the
issue of the approximately 4,000 pages of documents that it voluntarily and
unilaterally produced. Instead they have tried to make the issue about the
Calvert Letter.
2. The results of
this case have given the public a greater understanding of how their Government
works, both by the documents that NASA produced and how NASA has conducted themselves
during this case.
a. The public has learned that NASA’s standard
answer when independent inventors ask NASA for compensation for infringing
their patent includes: (i) NASA does not infringe; and (ii) NASA has found
prior art that was not reported to the United States Patent and Trademark
Office by you (but they refuse to even name the alleged prior art).
b. The public has learned that NASA does not
take FOIA requests from independent inventors seriously until an action is
brought against NASA. From Graham Declaration #42-1 ¶¶ 27,28:
27. On August 12, 2009, I issued a notice
to preserve evidence relevant to the lawsuit to NASA
Langley Research
Center, Johnson
Space Center
and Dryden Flight Research
Center. I also asked the
patent attorneys at each Center responsible for reviewing Case Number I-222 to
provide me with copies of all documents in their possession so I could review
them in connection with the litigation. See E-Mail, ACTION REQUIRED: Margolin
FOIA Suit, dated August 12, 2009 (annexed hereto at Exhibit H).
28. I received over 5600 pages of documents
from the NASA Field Centers in response to my request. Many documents were
duplicates because the NASA personnel investigating the claims consulted
closely with one another by e-mail and telephone while reviewing Case Number
I-222, so e-mails and documents were received by multiple people
simultaneously.
While many of the documents were
duplicates, many were not. These documents were not given to Margolin as a
result of his FOIA request. NASA did not even search for them until he filed
the present action.
c. One of the documents among the approximately
4,000 pages of documents that NASA produced is an email from NASA attorney
Robert Rotella to Courtney B. Graham dated May 5, 2009. In it, Margolin’s claim
was officially denied. By an interesting coincidence the email also contains
NASA’s decision to wiggle out of their promise to abide by the results of a
contest for naming the Node 3 module of ISS. (The comedic political commentator
Stephen Colbert had asked his viewers to vote for his name, and they did. He
won the contest.) The email is reproduced as Exhibit 1. The part about Stephen
Colbert is as follows:
1) Node 3 module of ISS online naming contest:
Drafted set of rules and entry conditions for participants; the most
significant was that the agency was not bound to accept the results of the
online voting which avoided having to name Node 3 after Stephen Colbert, who
encouraged viewers to nominate him.
The Colbert Report has a devoted
following. The public would not know the details about NASA’s bad faith toward
Stephen Colbert (and the members of the public who voted for him) without the
present lawsuit.
C. NASA cites Young v. Dir., No. 92-2561, 1993 WL
305970, at *2 (4th Cir. Aug. 10, 1993). (#65, page 2, line 15). NASA’s Counsel has misrepresented Young by taking her quote out of
context. The full context is as follows (Young
¶¶10-12):
10
Under 5 U.S.C. Sec. 552a(4)(E) of the FOIA, a district court "may
assess against the United
States reasonable attorney fees and other
litigation costs reasonably incurred ... [if] the complainant has substantially
prevailed." (emphasis added). Young has the burden of establishing she has
met this "substantially prevailed" standard. Pyramid Lake
Paiute Tribe v. U.S.
Dept. of Justice, 750 F.2d 117, 119 (D.C. Cir. 1984). The determination of whether a plaintiff has substantially prevailed
is largely a question of causation, that is, did the litigation cause the
agency's surrender of that information. Cox v. Department of Justice, 601 F.2d 1, 6 (D.C. Cir. 1979).
Causation may be established if "the action could reasonably be regarded
as necessary to obtain the information ... and that a causal nexus exists
between the action and the agency's surrender of that information."
11 Id.
12 Even if a plaintiff substantially prevails,
however, a district court may nevertheless, in its discretion, deny the fees.
The exercise of this discretion is appropriate if the award of attorney's fees
"will [not] encourage fulfillment of the purposes of FOIA." Nix v.
United States, 572 F.2d 998, 1007 (4th Cir. 1978) (holding that where suit is brought to benefit the plaintiff's own
interests, as opposed to being for the public benefit, a district court could not
be said to have abused its discretion in denying fees).
{Emphasis added}
The issues are:
1. The determination
of whether a plaintiff has substantially prevailed is largely a question of
causation, that is, did the litigation cause the agency's surrender of that
information?
2. Whether Margolin’s suit was brought to
benefit his own interests, as opposed to the public’s interest.
a. As shown supra,
NASA’s production of the approximately 4,000 was voluntary and unilateral and
was caused by the present lawsuit.
b. Now we consider whether Margolin’s suit was
brought to benefit his own interests, as opposed to the public interest. NASA makes
the statement (#65, page 3, lines 13 -15):
Applying the second and third
factors here, Plaintiff clearly had an incentive to litigate this FOIA action
to gather information related to the investigation of his patent infringement
claim.
When Margolin approached NASA in
2003 it was to offer to sell the patents to NASA. (See Exhibit 2, which is a
reproduction of the first five pages of the claim information that Margolin provided
in June 2003. The full document was reproduced in #19-1 as Exhibit 1.) NASA
told him he could either offer to sell them the patents or he could file a
claim for compensation but he could not do both. (Id.)
So, he filed the claim for compensation. There was only one publicly known
flight of the X-38 where the aircraft used synthetic vision. (Id.)
Thus, there was only one publicly known infringing use of Margolin’s patents.
As NASA’s Alan Kennedy pointed out in a telephone conversation in early
February 2004, it would cost Margolin more to sue NASA in Federal Claims Court
than he could hope to recover. (See #19-1, Exhibit 8, page 42 - 43) NASA’s statement (#65, page 3, lines 13-15)
that “Plaintiff clearly had an incentive to litigate this FOIA action to gather
information related to the investigation of his patent infringement claim” is
ludicrous. The record shows that neither Margolin nor Optima Technology Group
has sued NASA for infringement. If, as NASA asserts, Margolin’s suit was
brought to benefit his own interests it wasn’t about money.
When the Media gets an exemption of
fees for its FOIA requests it is recognized that reporters receive a personal
benefit. They get paid to write stories using the FOIA material. Their
employers are frequently profit-making organizations. In Davy v. CIA, 550 F.3d 1155, 1159 (D.C. Cir. 2008) William Davy
filed a FOIA request with the CIA to obtain information about individuals
allegedly involved in President Kennedy's assassination. At least one of the requested documents was
not previously available to the public. (See Davy at 1159.) Davy had planned to use that information in his research
to write a book. (See Davy at 1161.) From
Davy at 1160:
First, the mere intention to
publish a book does not necessarily mean that the nature of the plaintiff's
interest is "purely commercial."
See S. REP. No. 93-854, at
19. Surely every journalist or scholar may hope to earn a living plying his or
her trade, but that alone cannot be sufficient to preclude an award of
attorney's fees under FOIA. "If newspapers and television news shows had
to show the absence of commercial interests before they could win attorney's
fees in FOIA cases, very few, if any, would ever prevail."
Tax
Analysts, 965 F.2d at 1096. Yet their activities often aim to ferret
out and make public worthwhile, previously unknown government information —
precisely the activity that FOIA's fees provision seeks to promote.
Furthermore, a conclusion that using information obtained under FOIA in
connection with research for purposes of writing a book necessarily makes fees
unavailable is inconsistent with the distinction that underlies this court's
analysis of the relevant factors.
Cf. Nationwide,
559 F.2d at 713 (discussing
Goldstein
v. Levi, 415 F.Supp. 303, 305 (D.D.C.1976)).
Note that NASA did not ask Margolin
for any fees regarding his FOIA request. The issue of fees never came up during
the FOIA request that led to the present action.
Margolin is not planning to write a
book. He has been blogging this case on his Web site since the beginning of the
case. The article/blog is entitled How
NASA Treats Independent Inventors. In it Margolin has posted:
1. All of the Court documents;
2. Margolin’s difficulties as a newbie;
3. Margolin’s difficulties getting NASA to
accept mail that they do not want to receive;
4. Some commentary on the process;
5. A discussion of stare decisis;
6. Copies of most
of the cases cited by both parties and links to where he got the cases so
others can find them;
7. All of the approximately 4,000 pages of
documents that NASA produced;
8. The results of Margolin’s second FOIA request
to NASA where he asked for specific documents relating to NASA’s treatment of
independent inventors.
9. The results of Margolin’s third FOIA request
which NASA has completely ignored.
See Exhibit 3 for the most current version
of Margolin’s blog/article as of April 24, 2011.
On April 20, 2011 Margolin did a
Google search for the terms: NASA FOIA
lawsuit.
Google reported about 133,000 hits.
Margolin’s blog/article was ranked number 12 (or 13 if you count the videos
separately). See Exhibit 4. (Google ranking is based on several factors. One of
them is how often the Web page is clicked on by Googlers, i.e. its popularity.)
People are reading Margolin’s
blog/article. A printout of Margolin’s server logs just for the blog/article
(which started in September 2009) would require more than 500 pages. (To save
space Margolin will refrain from submitting it as an Appendix here.)
Margolin’s Web site is
non-commercial. He does not make money from people going to his Web site.
NASA knew that Margolin was going
to blog the case. He told them he was going to blog the case in a fax to NASA Acting
Administrator Scolese in April 2009. See Exhibit 5 last paragraph, also
reproduced as Exhibit 8 in #19-1. NASA
has periodically visited Margolin’s Web site and read Margolin’s blog. They
have also read some of Margolin’s other articles. See Appendix 6 for NASA’s
visits to Margolin’s Web site from January 1, 2011 to April 20, 2011. (To save
space Margolin has deleted hits to graphic images.)
Thus, whatever personal benefit
Margolin received from the present case is the same personal benefit that
journalists receive for their work.
D. NASA makes the
argument (#65, page 2, lines 10-11):
As Plaintiff himself readily concedes,
he “basically lost this lawsuit.” (#64 at p. 3). Under the circumstances, he is
not entitled to costs.
NASA has taken the quote out of
context by omitting the second part of the sentence (#64, page 3, lines 17-18):
Thus, although Margolin basically
lost this lawsuit, at the same time he substantially prevailed and deserves his
costs.
That sentence is a summary of the
preceding ten paragraphs in #64.
E. NASA’s citation
of Read v. FAA, 252 F. Supp. 2d 1108,
1110-11 (W.D. Wash. 2003) is relevant, but not the way they intended it to be.
(#65, page 3, lines 16-19):
As for the fourth factor, there is
no evidence that NASA acted in bad faith in withholding the two-page letter.
See Read v. FAA, 252 F. Supp. 2d 1108, 1110-11 (W.D. Wash. 2003) (“[r]ecalcitrant
and obdurate behavior ‘can make the last factor dispositive without
consideration of any of the other factors.’”).
NASA’s reference to the two-page
letter is to the Calvert Letter, supra.
And, rather than being inconsequential, it shows the pattern of how NASA deals
with independent inventors. But, as shown supra,
NASA’s recalcitrant and obdurate behavior is that NASA does not take FOIA
requests from independent inventors seriously until an action is brought
against NASA.
F. In arguing the Fourth Point NASA also cites Church
of Scientology v. USPS, 700 F.2d 486, 492 (9th Cir. 1983) “whether
the government’s withholding had a reasonable basis in law.” (#65, page 2,
lines 20-22).
The issue is not about the Calvert
Letter. The issue is about the approximately 4,000 pages of responsive
documents that NASA produced in November 2009, approximately three months after
the commencement of the present action.
NASA should have produced these
documents in response to Margolin’s FOIA request.
NASA’s withholding of these
documents had no basis in law.
NASA’s withholding of these documents constitute
bad faith.
NASA’s withholding of these documents necessitated a large
expenditure of Margolin’s time and a modest expenditure of money.
Margolin
deserves his costs.
October 22, 2011
I have been tardy in updating this page. (I've been busy with other
things.)
On
6/3/2011 the Court decided that I was entitled to my costs but only up
to the point where NASA had voluntarily produced the approximately
4,000 pages of documents.
I think this part was unkind (Page 4, lines 2-8):
The
court also finds, however, that Margolin is not entitled to costs of
litigation after November 5, 2009, when NASA made its supplemental
disclosures. As discussed above, Margolin’s continuation of litigation
following that point was virtually fruitless, resulting in neither
additional voluntary disclosures nor the court-ordered disclosure of
any documents responsive to his FOIA request. Furthermore, the court
finds Margolin’s voluminous filings to have been in substantial part
immaterial to the FOIA issues before the court, unnecessarily
voluminous even when material, and therefore wasteful and unworthy of
compensation.
The Court continued:
IT
IS THEREFORE ORDERED that within 14 days Margolin shall file an
affidavit or declaration itemizing litigation costs incurred prior to
November 5, 2009. NASA may file objections within 10 days thereafter.
See doc67.pdf
On 6/6/2011 I did that.
On
6/15/2011 NASA (Holly A. Vance) filed an objection to my
costs, small as they were. Her arguments were bogus and she did it
in a particularly mean-spirited way.
On 6/20/2011 I responded.
On 6/20/2011 I also filed a Motion requesting permission to continue using electronic filing (CM/ECF).
One
of Holly's objections was to my cost to drive down to the Courthouse to
file the case. She said I should have filed the case electronically.
However,
while Special Order 109 requires attorneys to file electronically,
non-attorneys are not allowed to file electronically except by Motion.
(See Special Order 109.)
You
cannot file a Motion until you have filed a Complaint and, until you
have permission to file electronically, you have to file the Complaint
(and other documents) on paper. (I would guess that Holly's
favorite movie is the classic 1970 movie Catch 22. See http://www.imdb.com/title/tt0065528/ and http://en.wikipedia.org/wiki/Catch-22)
My request (#71) was Denied.
I
filed both my Motion Requesting Permission to Continue to File
Electronically (#71) and my Response to NASA's Response (my #70) on
6/20/2011.
While my Request to Continue to File Electronically
(#71) was denied on August 22, 2011, it is now October 22, 2011 and the
Court has not ruled on my Costs (#70).
As of today:
October 22, 2011 (continued)
It turns out that I am not the only one who has trouble getting NASA to produce documents.
From http://www.spaceref.com/news/viewnews.html?id=1557
Senate Issues Subpoena to NASA for SLS Materials (Update)
- By
Keith Cowing
- Posted Thursday, July 28, 2011
Keith's
11:00 am EDT note: Sources are reporting that the Senate Commerce
Committee has finally made good on its threat and has issued a subpoena
to NASA regarding materials related to the SLS decision. Prior to this
several letters and a hearing were held to prompt NASA in this regard.
No luck. Congress is more or less convinced that the decision regarding
SLS design/architecture has already been made and they are using the
tools at their disposal to force NASA/the White House to admit that this
is indeed the case. Stay tuned.
December 7, 2011
On November 3, 2011 the Court decided that:
Upon review of the parties submissions, the court sustains Defendant’s objections. The bill of costs is otherwise unopposed.
IT IS THEREFORE ORDERED that costs are taxed in the amount of $525.06 and included in the judgment.
IT IS SO ORDERED.
DATED this 3rd day of November, 2011.
See doc73.pdf .
In my Declaration of 6/6/2011 (doc68.pdf) I listed costs of $791.25 .
|
| $350.00 |
| $80.90 |
| Travel (Driving and Parking) $0.55/mile as per IRS Rules | $261.53 |
| $47.78 |
| Office Supplies | $0.00 |
| Pacer Charges | $51.04 |
| |
| Total | $791.25 |
The Court failed to state which costs they had disallowed (and why).
What am I going to do with my new-found wealth?
Nothing.
It has been 33 days since the Court ordered NASA to pay me $525.06 and NASA hasn't paid me.
I
will give NASA some more time. After all, they have 60 days to appeal
the $525.06 judgment to the 9th Circuit Court of Appeals. (The fee for a
petition for review is $450.)
After that I am thinking of
registering the judgment with the U.S. District Court for the Southern
District of Florida, filing a Writ of Execution, and having U.S.
Marshalls seize the Space Shuttle Orbiter Atlantis and sell it at
public auction to satisfy the judgment.