Fulmer v. United States

• Decision Date: 07 March 1949
• Docket Number: Civ. A. No. 6174.
• Citation: 83 F. Supp. 137
• Parties: FULMER v. UNITED STATES.
• Court: U.S. District Court — Northern District of Alabama

83 F. Supp. 137

FULMER v. UNITED STATES.

Civ. A. No. 6174.

United States District Court, N. D. Alabama, S. D.

March 7, 1949.

John D. Prince, Jr., of Birmingham, Ala, for plaintiff.

E. R. Weisbender, of Washington, D. C., Attorney, Department of Justice, John D. Hill, U. S. Atty., and W. R. Bradford, Asst. U. S. Atty., both of Birmingham, Ala., for defendant.

LYNNE, District Judge.

This case came on for decision on a Motion for Summary Judgment by the United States of America and involves four primary issues which are here presented for the first time in any District Court of the United States, in so far as counsel for the parties and this Court have been able to ascertain.

In view of this novel situation, the Attorney General, at the suggestion of the United States District Attorney for this Federal District, especially designated Mr. E. R. Weisbender, an attorney of the Department of Justice in Washington, who filed the motion here in question, under his superiors noted on the motion, and ably briefed and presented an oral argument on the issues of law involved.

Plaintiff brought this action against the United States under the provisions of the Air Corps Act of July 2, 1926, as amended, Title 10 U.S.C.A. § 310(i); the Secrecy or Voluntary Tender Act of October 6, 1917, as amended, Title 35, U.S.C.A. § 42; and the Jurisdictional or Tucker Act of March 3, 1887, as amended, Title 28, U.S.C.A. § 41(20) now § 1346, seeking compensation for the alleged use of "a certain device, plan, means or method for bomb sight indicating chart for aircraft" allegedly originated, developed, invented, and owned by him.

Following its answer, denying that plaintiff had stated any cause of action of which this Court has jurisdiction and denying any liability to plaintiff, defendant took plaintiff's deposition under Rule 26 of the Federal Rules of Civil Procedure, 28 U.S.C.A. Concurrently with the filing of said deposition, defendant filed certain documentary evidence identified in said deposition and, under Rule 56, presented certain affidavits of Governmental officials, with appended copies of official records relevant and material to the issues; as well as copies of official records authenticated in accordance with Rule 44.

It is upon these pleadings, said deposition, and the admissions, affidavits and evidence on file herein that defendant seeks summary judgment, defendant urging that there is no genuine issue as to any material fact, and that it is therefore entitled to summary judgment or dismissal of this action as a matter of law as to all issues, thereby disposing of the complaint in its entirety without more.

Prior to dealing with the issues of law presented by the motion, it will be helpful to review in considerable detail the allegations of the complaint and the undisputed facts revealed by the matters of record.

It is alleged in the complaint "that on, to-wit, March 18, 1942, plaintiff entered into an oral agreement with officers, agents, servants or employees of the defendant" pursuant to which plaintiff disclosed to defendant his "device, plan, means or method for bomb sight indicating chart for aircraft" upon the promise of said representatives of defendant "that said disclosure would be treated in confidence, that such disclosure would not be revealed to the public or otherwise be appropriated, and that defendant would pay to the plaintiff for the use of said device, invention, means or method the reasonable value of same."

Plaintiff further avers "that on or about September 9, 1947, defendant in a publication prepared by it, viz., War Department Field Manual 20-100 Aviation did publish plaintiff's said invention, plan, means or method" and that since said publication was designed and intended for the instruction of the military forces of the defendant, "defendant has actually used said invention, device, plan, means or method of plaintiff." In conclusion plaintiff alleges that the Government "has utterly failed and refused to compensate him for said use thereby breaching its agreement with the plaintiff."

In his deposition plaintiff refers to additional unpleaded alleged uses of his invention by the Army Air Force and additional unpleaded alleged contractual relations with the National Inventors Council, an agency of the Government, and representatives of the Air Force.

Defendant, in its brief accompanying the Motion for Summary Judgment, sets forth a detailed statement of "undisputed Facts" based entirely upon the matters of record. That statement is accepted by the Court as a full and fair statement of the facts and as undisputed inasmuch as plaintiff has in no way challenged said statement nor the affidavits or other matters of record filed by defendant, either prior to or during the hearing of defendant's motion, and since counsel for plaintiff, when given an opportunity to comment on the facts as so stated by defendant, conceded that the facts herein are undisputed. Plaintiff neither urged trial as to any allegation or circumstance, nor contended that any further proceedings might develop evidence other than is now of record. The Court has examined the record and finds that the deposition of plaintiff is strictly in accordance with the Federal Rules of Civil Procedure; that the documentary evidence referred to in and submitted with the deposition is admissible, relevant, material and undisputed in so far as it related to the alleged contract and use by the Government; that the affidavits were made by Government officials competent to testify to the matters stated therein; that the affiants based their statements on personal knowledge of the facts stated in their affidavits; that the facts stated in and revealed by the official documents appended to the affidavits are admissible, relevant and material; and that the official records of the Patent Office are properly authenticated under Rule 44 and are admissible evidence, relevant and material to the issues.

The Court therefore finds no controversy as to any material fact and accordingly adopts defendant's statement thereof.¹

Other undisputed facts will be set forth in the consideration of the issues of law. The questions of law posed by the complaint and raised by the motion for summary judgment are:

Issues of Law

I. Whether this Court has jurisdiction under Title 10 U.S.C.A. § 310(i), (the Air Corps Act of 1926) to award "reasonable and entire compensation" and if so whether the complaint states or the other matters of record show facts which, if proved, would constitute a cause of action within the scope of said statute.

II. Whether this Court has jurisdiction under Title 35 U.S.C.A. § 42, the Secrecy or Voluntary Tender Act, to award "compensation" thereunder, and if so whether the complaint states, or the other matters of record show, facts which, if proved, would constitute a cause of action embraced within the scope of Section 42 of the aforesaid Secrecy Act.

III. Whether the Tucker Act, Title 28 U.S.C.A. § 41(20), confers jurisdiction upon this Court to award "reasonable and entire compensation" or "compensation," respectively, under the aforesaid sections of the Air Corps and Secrecy Acts, and independently thereof whether the complaint states, or the other matters of record show, facts which, if proved, would constitute a cause of action embraced within the scope of sub-section (20) of the aforesaid Tucker Act per se.

IV. Whether the complaint states, or the other matters of record show, facts which, if proved, would constitute any cause of action upon which any relief can be granted against the sovereign, the United States of America, by this Court under any other Act.

The Air Corps Act — Issue I

Section 310(i) of Title 10 U.S.C.A.² popularly titled the "Air Corps Act of July 2, 1926," as amended, is one of the three specifically designated acts under which plaintiff brought this suit.

In so far as I am advised, this is the first suit sought to be maintained in a District Court under the above quoted section of the Air Corps Act. In fact, only two previous actions based on this section have been decided to date, both in the Court of Claims. In each of those cases the Court of Claims sustained the Government's demurrer.³ I am informed that a third case is now before the Court of Claims on a similar demurrer.

As italicized in the quoted section of the Air Corps Act, suit may be maintained only for uncompensated manufacture and use by or for the United States of "designs * * * relating to aircraft or any components thereof".

In the present suit plaintiff's claim is based upon alleged use of aeronautical accessories consisting of an alleged "invention, device, plan, means or method for bomb sight indicating chart for aircraft."

In this same plaintiff's earlier suit in the Court of Claims involving different subject matter consisting of parachutes, and predicated upon Section 310(i) of the Air Corps Act, Fulmer v. United States, supra, the Court of Claims held 77 F.Supp. 929:

"Parachutes may be regarded as aeronautical accessories, but these were not included in the designs mentioned in section 10(i)⁴ * * * The history of the Air Corps Act shows that in the enactment of section 10(i) Congress was dealing with aircraft and constituent elements or parts thereof * * * It seems obvious that if Congress had intended to include designs for `aeronautical accessories' in section 10 (i), in addition to `components' of aircraft. it would have expressly so stated * * *."

In the only other decisions involving Section 310(i) of the Air Corps Act, i. e., Mamlin et al v. United States, supra, plaintiff sued thereon for alleged wrongful use of a safety appliance for fighting aircraft fires. With respect thereto, the Court of Claims held 77 F.Supp. 932:

"It appears that Congress had in mind a design or designs relating to a new type of aircraft or to improved designs for one or more features of a particular type or types of aircraft or...