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GOLDEN v. U.S.

Before OMalley, Mayer, and Wallach. Appeal from the United States Court of Federal Claims.

Summary: (1) Patent infringement claims against the government must be brought under 28 U.S. 1498, not as a Fifth Amendment taking claim. (2) An IPR initiated by a government agency is not a taking if the patent owner voluntarily canceled all claims in a non-contingent motion to amend.

Larry Golden filed suit pro se in the U.S. Court of Federal Claims seeking compensation for the governments alleged taking of his patents. The complaint alleged the takings occurred by (1) the governments use of subject matter outlined in the claims and specification of Goldens patents, (2) the cancellation of patent claims during an IPR initiated by the Department of Homeland Security (DHS), and (3) the dismissal of Goldens taking claims in a previous case. The Claims Court dismissed Goldens claims because they were duplicative of the previous case and were actually patent infringement claims that had to be pursued under 28 U.S.C. 1498. Golden appealed.

The Federal Circuit concluded the dismissal of Goldens patent infringement-based takings claims was proper because a patentee could not sue the government for patent infringement as a Fifth Amendment taking. Rather, patent claims against the government must be pursued exclusively under 28 U.S.C. 1498. As for the IPR-based takings claims, the Federal Circuit previously held in Celgene Corp. that IPR is not normally an unconstitutional taking under the Fifth Amendment. The Federal Circuit noted that the DHS is a government agency, which is not a person that can petition for IPR under the Supreme Courts Return Mail decision. However, that did not impact the decision because (1) Golden did not appeal the IPR, which became final before Return Mail, and (2) the claims were canceled as a result of Goldens voluntary non-contingent motion to amend during the IPR.

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Patent Owners Cannot Sue the Government for Patent Infringement as a Fifth Amendment Taking - Lexology

A Haskell Indian Nations University (HINU) student was vacated from the university dorms during the height of the COVID-19 pandemic over allegations of intimidation and harassment of a Haskell employee without due process to appeal the decision.

HINU athlete Russell Parker received a HINU Action Notice for an Emergency Level II suspension from Danelle McKinney, Student Rights Specialist, that required Parker to leave campus during stay-at-home orders from the state. The notice outlined that Parker wasnt currently allowed to appeal allegations against him but was allowed to appeal his Permanent Loss of Housing. Parker says he is unaware of how an appeal for housing would work at this time since there are policies in place to keep students who have left campus from returning among HINUs COVID-19 response efforts and hes currently required to be off campus until his hearing.

Parkers suspension is based on allegations of harassment of Haskell employee and intimidation by student to Haskell employee. These allegations came as a shock for Parker, and contrasts the Report Synopsis Overview in the Incident Report which states that [the] student failed to comply with verbal directives from Facilities Staff. The referenced directives in the report had asked Parker to move his car and golf mat and move onto the current golfing range.

According to the incident report, Steven LaCour, Acting Facilities Foreman stated I noticed that he had a golf club in his hand and was getting very agitated. The surrounding text does not support that Parker, who was golfing, threatened LaCour, but mentions Parker accusing him of being on a power trip and calling him an ahole when he walked away, both protected rights under the First Amendment as well as the Code of Student Conduct. Parker feels LaCour embellished his report by describing Parker as belligerent and agitated; LaCour referred to himself as acting kindly.

In addition to LaCours statement being taken in the incident report by Ernest Wilson, Acting Supervisor: College Resident Assistant, LaCours account was also recorded in the activity log of Lead Security Officer James Yarnall who LaCour asked to confront Parker. Yarnall wrote that after asking Parker to move his car and to golf on the range, the student packed up his stuff and left and did not say much to me. He did note that Parker seemed irritated.

Parkers own experience was not documented by either the security activity log nor the Incident Report used to determine Parkers suspension. Despite his best efforts to advocate for himself, Student Rights is not allowing him to appeal their allegations.

As a federally funded school, HINU is bound by constitutional rights including the right to due process which is also part of the Code of Student Conduct. The code of conduct says every student, student organization, and campus organization is entitled to due process and appeal in every instance of disciplinary action for alleged violation of Haskell expectations.

This decision and lack of due process puts Parkers life in danger. Parker said its like walking around with a bomb strapped to my chest referring to him trying to find temporary housing off campus in the midst of the pandemic. Parker also showed concerns for its effects on his financial situation and how it will affect his scholarships. Parker had told Tonia Salvini, Vice President of University Services, through email that this would leave [him] homeless at the height of a pandemic.

For Parker to be charged with Intimidation or Threat outlined in the Code of Student Conduct, LaCour would have to have had a fear of bodily harm or feel threatened by word or action of a perceived threat to inflict bodily harm. In Parkers message to Salvini, he told her that these allegations simply arent true and that at no point did [he] approach Mr. LaCour or say anything that would imply a threat or violence. Allegations of intimidation automatically trigger an additional charge of harassment due to HINU defining intimidation as a form of harassment.

Parker has been receiving support from his peers who have witnessed Parker golfing over the past few weeks during isolation before the incident. Haskell student, Michael King said Haskell protects their employees more than they protect their students. The climate of the current COVID-19 pandemic has complicated relationships between students and staff. King said I feel staff is targeting students and pointing blame at them for [COVID-19] and that the staff thinks their health is at a greater risk than students. One of LaCours coworkers commented on an Indian Leader Facebook post that he felt it was a very bad choice to let students live here and he feels like staff arent equipped to protect themselves. One of LaCours relatives also posted concerns that essential staff have families too referencing the fact that students who are staying on campus put them, the staff and their families, at risk (see article When Home isnt Home ).

Not only is Parker up against a mindset that students on campus threaten staff safety, but Parkers peer, Marklin Morales says I dont doubt race had something to do with it. Parker told Indian Leader that as a bi-racial non-traditional student, he doesnt look like his peers and that has caused challenges for him including this incident.

A study from the American Psychological Association (APA) found that black men, in hypothetical situations, were perceived as more capable of causing harm Parker said, I dont like playing the race card, but he finds that his bi-racial status affects his life, even in Black and Native communities. This comes several weeks after multi-racial Black students discussed their discrimination on HINUs campus at the Black History Month Student Panel.

Parker is one of at least five students who have been vacated during HINUs isolation through allegations of breaking the Code of Student Conduct, and it is unknown if the others were given their due process, and if there was any consideration for their safety during this pandemic. Parkers hearing for Permanent Loss of Housing will be Friday April 17, Parkers birthday.

Vice President of Student Services Toni Salvini, Student Rights Specialist Danelle McKinney, and Acting President Jim Rains were given an opportunity to comment before publication with no response.

UPDATE April 16, 2020 At the request of Parker, he would like his documents pertaining to this instance made public to help provide context to his circumstances and the event reference in the article above.

Note: There is a reference to an attached police report. To Parkers knowledge, this is just the security log from Yarnall. Parker contacted the Lawrence Police Department who has no record of this incident.

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Student Safety Jeopardized by Violation of Fifth Amendment - The Indian Leader

What happens when the government destroys your house in pursuit of acriminal? That seems like atoo common story now, as our police are armed to the teeth and frequently use armored vehicles and heavy weaponry. Arecent petition filed at the Supreme Court comes out ofawellpublicized incident of police destroying property in the Denver suburbs.

Lech in front of his destroyed house.

Leo and Alfonsia Lech owned ahome in Greenwood Village, Colorado where their son John lived. In early June of 2015, ashoplifter who was fleeing from the police chose the house at random to hide from the police. When the police arrived, they discovered that the shoplifter was armed and dangerous. Flushing him out of the house required two gascanisters, breaking down the front and back doors, and blowing holes in the walls and windows. The shoplifter was captured, but the home was uninhabitable. This case is about who covers the costs of building anew house, the public who were protected from aviolent criminal, or the innocent family that lost their home.

Theres an old saying, you break it, you buy it, but that apparently doesnt apply in Greenwood Village. The city offered only temporary living expenses while the Lechs paid to rebuild. The Lechs sued for compensation under the Takings Clause of the Fifth Amendment, which says the government may not take private property for public use, without just compensation.

The district court denied Lechs claim, and the Tenth Circuit affirmed the district court. The Tenth Circuit held that the destruction of property by police is different than when the government takes ahouse to, say, build aroad. Taking property to build roads and schools are classic eminent domain cases, the court said, but the police destruction is just, well, luck of the draw. Because the Lechs property was destroyed while trying to protect the health, safety, and welfare of the citizens, no compensation was owed. Essentially, the Tenth Circuit created an exception to the Takings Clause that historically has not been recognized.

Represented by our friends at the Institute for Justice, the Lechs have petitioned the Supreme Court to hear their case. Cato and Professor Ilya Somin of George Mason Universitys Antonin Scalia Law School have filed abrief in support. We argue that the Tenth Circuits policepower exception conflicts with the history of the Takings Clause. There should be aremedy for innocent bystanders who lose property to destructive police tactics for the public good, especially given the militarization of police over the past decades.

Fundamentally, the Takings Clause means, in the words of the Supreme Court, the government cannot force some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as awhole. The Supreme Court has often required the government to compensate the owners of physically taken or destroyed property, such as wagons commandeered for the MexicanAmerican War or land flooded when the government builds adam. But the Tenth Circuit relied heavily on acase from 1887, Mugler v. Kansas, where abrewer sued for the loss of value in his property after the state banned alcohol. There the Supreme Court ruled that no compensation was owed. In that case, however, the property itselfthe beer and the equipment to produce itwas considered noxious. But the Lechs are entirely innocent, and their property only became noxious after acriminal chose to hide in it.

Both the history and spirit of the Takings Clause show that the Lechs should be compensated for their lost property. In some sense, they did the people of Greenwood Village afavor by sacrificing their property to catch acriminal, and they should receive compensation. If the government breaks it, they should buy it.

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"You Break it, You Buy it" Applies to the Government Too - Cato Institute

BOULDER COUNTY, Colo. The man convicted of first-degree murder and sentenced to life in prison for the 2017 shooting deaths of three people at an illegal marijuana grow in Coal Creek Canyon saw his conviction and sentence voided this week and will get a new trial after a judge determined one of the jurors at his trial lied on the jury questionnaire.

Garrett Coughlin, now 27, was convicted of three counts of felony murder and one count of aggravated robbery last June and was sentenced to life in prison without parole for the April 2017 killings of Wallace White, Kelly Sloat-White and Emory Fraker at the home in Coal Creek Canyon in Boulder County.

According to prosecutors, Coughlin killed the three and stole bundles of marijuana before driving to several states and dumping the alleged murder weapon at a cousins home.

He was arrested about a month after the killings occurred.

But after the trial was over, according to an April 14 order from District Court Judge Judith L. LaBuda, Coughlins defense attorneys learned two jurors on the panel that convicted Coughlin had lied on their questionnaire and concealed information about whether they or someone close to them had been charged with a crime.

His attorneys filed a motion for a new trial on June 27 last year and Coughlin appealed his conviction. According to Judge LaBudas order, the two jurors who are not named in the order but identified by their initials both did not answer Question 10 on the questionnaire: Have you, a family member, or close friend, ever been charged with or convicted of a crime other than a minor traffic offense? Who? When? What type of crime?

Both jurors answered no.

The court heard testimony and reviewed evidence on Jan. 30 this year, at which time one of the jurors invoked his Fifth Amendment right not to incriminate himself. He would later get immunity from prosecutors and testified at a March 9 hearing.

But the court found that the circumstances of the two jurors was different. The juror who eventually received immunity was found to have lied about three of his children having criminal records, but the court found that it was reasonable that he did not at the time remember two of the childrens charges since they occurred many years ago.

And the court found that since the juror did not feel comfortable giving his answers verbally they were being read to him as he forgot his reading glasses the day the questionnaire was administered and in front of other people that he had a spontaneous, though dishonest, reaction to having to provide the information in an environment that did not provide security.

The court found that no structural error existed in the trial based on his intentional misrepresentations. Thus, as with respect to R.H., the Court finds he was not deprived of a fair and impartial trial.

But Judge LaBuda wrote that was not the case for the other juror, whom she wrote demonstrated a habitual evasion and dishonesty with the facts of her and her familys criminal record.

The woman lied about her and her husbands criminal history, which included child abuse in a state where the family previously lived, on the same question on the questionnaire, the court found.

It defies logic that an individual who was arrested and taken from her home, jailed and boked, along with her husband, would not realize she had been charged with a crime, Judge LaBuda wrote.

She said that the juror was focused only on protecting her and her familys criminal history.

If a juror will go to such lengths to hide their own person legal history, then we cannot rely on that jurors compliance with an oath to seek the truth and decide a case based only on the evidence and the rule of law provided to the jury, the judge wrote.

She found the juror could not render an impartial verdict, and thus, Coughlin had been deprived of his right to an impartial jury and is entitled to a new trial.

But the judge wrote that she did not take her decision lightly.

If a juror is not accountable to hold to their oath and responsibility to engage in the truth-seeking process, then the entire system will crumble, Judge LaBuda wrote.

The costs of these proceedings are vast. The pain and grief to the victims families to go through another trial, after already enduring delays in trial, will be tortuous. The taxpayers have expended immense monetary costs for this trial and the post-trial proceedings that have and will now follow, she added. The attorneys diligently prepared for and presented the case to the Court and will now be tasked with doing so again. But ultimately, we [sic] the protections afforded us under our constitution and our laws must be safeguarded. Those protections cannot be endangered or threatened by the actions of those who would not uphold an oath to do just that.

Boulder County District Attorney Michael Dougherty said his office is exploring all options in response to the courts decision and that he would continue to fight for the victims families.

On April 13, 2017, Wallace White, Kelly Sloat-White, and Emory Fraker were murdered in cold blood at the Whites home in Coal Creek Canyon. The trial jury worked hard to reach the right verdict and held this defendant responsible for ending their lives. My heart goes out to the victims families who, just days after the anniversary of these tragic murders, learned that the trial court was vacating the conviction due to juror misconduct, he said in a statement.

The court decided that the non-disclosures by the juror were intentional and rendered the trial unfair and prejudicial to the defendant. Our office is currently exploring all of our options, Dougherty added The District Attorneys Office will continue to fight for these three victims, their loved ones, and the community all of which were tragically impacted, based on the trial jurys verdict, by the decisions the defendant made in April of 2017.

Court records do not list a next court date for Coughlin. The state Department of Corrections website showed Friday he was still at the Crowley County Correctional Facility.

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Man convicted of 2017 Coal Creek Canyon triple murder will get new trial due to juror misconduct - The Denver Channel

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Democratic Pennsylvania Gov. Tom Wolf is expected to veto a bill to reopen many of the state's businesses amid the coronavirus pandemic.

As the administration has stated many times, irresponsibly going against the direction of the secretary of health and reopening businesses too early will only extend the length of the economic hardships created by the pandemic, Wolf spokesperson Lyndsay Kensinger told The Philadelphia Inquirer in an email.

CORONAVIRUS LOCKDOWN PROTESTERS 'GRIDLOCK' MICHIGAN STREETS

The bill passed the state's Senate along party lines on Wednesday, butRepublican state legislators do not have enough votes to override Wolf's veto.

The state has the sixth-highest number of coronavirus cases in the U.S. atmore than 26,000.

Wolf's office did not provide FOX Business with a comment at the time of publication.

The Pennsylvania Medical Society praised Wolf's decision to extend a statewide stay-at-home order earlier this month.

"The Pennsylvania Medical Society (PAMED) strongly supports guidelines that call for increased social distancing and isolation as the only means to effectively mitigate the impact of COVID-19," PAMED President Dr. Lawrence John said in a statement. "Physicians, nurses and health care workers are saving lives by staying at work. We ask you to save lives by staying at home.

Some Pennsylvanians plan to protest on Monday in front of the State Capitol building in Harrisburg against lockdown restrictions being extended beyond May 1.

Others are taking legal action.

"If youre going to have closures like this, the government has to be transparent about the way its doing this," Jonathan Goldstein, chairman of Pennsylvania handbell manufacturer Schulmerich Bells, told FOX Business.

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Goldstein is suing Wolf on behalf of the company and workersafter he had to shutter his business and layoff nine people, he said. He argues that the governor cannnot "seize" jobs without just compensation under the Fifth Amendment.

The government "has to have the authority to manage health crisis," Goldstein said."What thegovernment cant do is expect certain private parties to bear the cost for public benefit."

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