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.
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 calender
days from August 27. It is 15 calender 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).
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 Judgement.
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 Dismisss 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 Judgement.
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 many of the documents had been sealed but several 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 SECOND
AMENDED COMPLAINT.
As part of my blog I scanned the 4,000 (or
so) pages of documents and posted them. Because of their length I
divided them into volumes. The index is here.
Universal Avionics Systems Corporation's (UASC's) Second Amended Complaint is in Volume 23.
Lately
I have seen in my server logs that several of NASA's agents and
partners have been downloading that volume. I believe it is to get
UASC's Second Amended Complaint.
I think they (and everyone
else) should see the whole story, so I am posting most of the Court
documents. Although many of the Court documents are now sealed,
they weren't always sealed. They were publicly available on PACER to anyone who
was willing to pay $0.08/page. That's how I got most of them, from
PACER.
Click here.