527 F.2d 1209 | Ct. Cl. | 1975
delivered the opinion of the court:
The claim is that (a) in July and August 1961 plaintiff made to the National Aeronautics and Space Administration (NASA) “suggestions, ideas and contributions relating to insulation of certain parts of space ships and vehicles; that he made and presented suggestions relating to wingless space craft, space ships and space vehicles, modules and space craft designed to successfully place men on the moon and return to earth”; (b) “the theories, exhibits, designs, models, materials, ideas and suggestions presented to the defendant had not previously been presented to the defendant by any one prior to the time this petitioner presented them to the defendant”; and (c) the Government, without paying compensation, has used and continues to use plaintiff’s “ideas, theories, exhibits, plans, designs, contributions and materials.” In April 1966 plaintiff submitted an application for compensation under 42 U.S.C. §§ 2457-58 to the NASA Inventions and Contributions Board; a hearing was held on May 8, 1967. In September 1967 upon recommendation of the Board, the Administrator of NASA rejected the claim for compensation and plaintiff was so notified on October 4, 1967. This suit, apparently brought under our general jurisdictional statute (28 U.S.C. § 1491), was filed on March 22, 1974. The Government has moved for summary judgment on the ground that the action is barred by the six-year statute of limitations (28 U.S.C. § 2501).
Almost seven years elapsed between the denial by NASA of an award and the beginning of this litigation but plaintiff urges that his claim “first accrued” within the permissible six-year span. The contention is, on analogy to the principle that limitations on just compensation for a taking by flooding does not run until the full extent of the damages can be ascertained (United States v. Dickinson, 331 U.S. 745, 748-49 (1947)), that the claim here did not really mature until plaintiff could measure, in reasonable form, his entire loss. Even if we were to accept this comparison arguendo, it is clear that by the time plaintiff applied to the Inventions
Plaintiff’s alternative argument is that this is a “continuing claim” on which he may be barred for periods prior to the six years antedating his filing of this suit but is not cut off from pursuing the claim for use during the six years before March 22, 1974. On this point there are two lines of authority in litigation between private parties. Applying California law, Monolith Portland, Midwest Co. v. Kaiser Aluminum & Chemical Corp., 407 F. 2d 288, 292-93 (C.A. 9, 1969), rejects the “continuing claim” theory on the ground that the core of a claim for misuse of trade secrets is not the adverse use of the claimant’s “property” but the initial rupture of the confidential relationship between the parties. Shatterproof Glass Corp. v. Guardian Glass Co., 322 F. Supp. 854, 869-70 (E.D. Mich. 1970), aff’d on other grounds, 462 F. 2d 1115 (C.A. 6), cert. denied, 409 U.S. 1039 (1972), follows Monolith without tying the rule to the law of any particular jurisdiction. Underwater Storage, Inc. v. United States Rubber Co., 371 F. 2d 950 (C.A.D.C. 1966), cert. denied, 386 U.S. 911 (1967), took another position, accepting the “continuing claim” theory after full discussion
Without deciding whether or not the administrative remedy through this Board is mandatory,
In the circumstances, to hold that, after choosing to follow through on the agency’s proceeding, the claimant can delay suit for more than the statutory six years from the agency decision would be to permit an unnecessary and unjustified, even though only partial, prolongation of the limitations period at the plaintiff’s own choice. Cf. Feldman v. United States, 149 Ct. Cl. 22, 32, 181 F. Supp. 393, 400 (1960); Friedman v. United States, 159 Ct. Cl. 1, 9-11, 310 F. 2d 381, 386-87 (1962), cert. denied, 373 U.S. 932 (1963). And since Congress expressly directed the establishment of the Inventions and Contributions Board and authorized its use to evaluate claims like plaintiff’s, it is fitting that, where a claimant utilizes the Board procedure, he not be permitted
For these reasons, we grant defendant’s motion for summary judgment on the basis that the suit was filed too late, and dismiss the petition.
“Every claim of which the Court of Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.”
We discuss this theory on the assumption that resort to the Board was not a prerequisite to suit. If it was, the claim would have arisen no later than early October 1967 when plaintiff was informed of the administrative denial. Friedman v. United States, 159 Ct. Cl. 1, 8-13, 310 F. 2d 381, 385-88 (1962), cert. denied, 373 U.S. 932 (1963).
The Monolith Portland opinion distinguishes Underwater Storage as applying District of Columbia law, but the latter is written in general terms and can be read as applying general or federal law.
As already indicated (fn. 2, supra), it is thoroughly settled that, if the administrative remedy is a prerequisite to suit, limitations begins to run from the Board’s determination. See also Burich v. United States, 177 Ct. Cl. 139, 143, 366 F. 2d 984, 986-87 (1966), cert. denied, 389 U.S. 885 (1967).