Barbara A. Sims v. Steven Ellis , 668 F. App'x 689 ( 2016 )

FILED
NOT FOR PUBLICATION
SEP 19 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARBARA A. SIMS, as personal No. 14-35151
representative of the Estate of Sandy
Howard Sims, D.C. No. 1:12-cv-00505-EJL
Plaintiff-Appellant,
MEMORANDUM*
v.
STEVEN ELLIS, in his official capacity as
the Director of the Idaho State office of the
US Bureau of Land Management; MIKE
POOL, in his official capacity as the
Acting Director of the US Bureau of Land
Management; SALLY JEWELL, in her
official capacity as the Secretary of the US
Department of the Interior,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted August 31, 2016
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: HAWKINS, McKEOWN, and DAVIS,** Circuit Judges.
Barbara Sims, on behalf of the estate of Sandy Sims, seeks an order from the
district court to the Bureau of Land Management and the Department of the
Interior (collectively the “agency”) to issue patent on seven mill site claims
associated with the Democrat Mine in Idaho. Because rights to a patent do not vest
until a validity determination is completed, the district court did not have discretion
to issue the requested order under the Mandamus and Venue Act, 28 U.S.C.
§ 1361, or the Administrative Procedure Act, 5 U.S.C. § 706. We therefore affirm
the district court’s denial of the requested relief.
Sims’s argument that rights to a patent vest upon the submission of an
application and the payment of fees is squarely foreclosed by this court’s
precedents. R.T. Vanderbilt Co. v. Babbitt, 113 F.3d 1061, 1068 (9th Cir. 2007)
(“Thus, ‘no rights [in a patent claim] vest before the Secretary has decided whether
to contest the patent claim.’” (alteration in original) (quoting Indep. Mining Co. v.
Babbitt, 105 F.3d 502, 508 (9th Cir. 1997))).
Because Sims had no vested right to a patent prior to a validity
determination by the agency, there was no “plainly prescribed” ministerial duty
**
The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.
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that the district court could have ordered the agency to perform. Or. Nat. Res.
Council v. Harrell, 52 F.3d 1499, 1508 (9th Cir. 1995). Sims seeks a
determination of patent validity, and that determination remains within the
province of the agency. The district court therefore lacked the authority to order
the agency to issue the patent. See Norton v. S. Utah Wilderness All., 542 U.S. 55,
65 (2004) (“[A] court can compel the agency to act, but has no power to specify
what the action must be.”).
We also reject Sims’s alternative arguments that the pending contest
proceeding in the agency is barred by Section 322(c) of the Omnibus Consolidated
Rescissions and Appropriations Act of 1996 (“Appropriations Act”), Pub. L. No.
104-134, 110 Stat. 1321; the statute of limitations at 28 U.S.C. § 2462; or by
principles of equitable estoppel or laches. The timeline for processing
grandfathered patents under the Appropriations Act is not an enforceable deadline.
Likewise, the five-year statute of limitations is inapplicable because it only applies
where there has been a fine, penalty, or forfeiture. Sims has no vested right to the
patent which could be forfeited. Finally, equitable relief is not available because
“we have long held that affirmative government misconduct must be proven
against the government [in order to assert equitable estoppel].” United States v.
Harvey, 661 F.2d 767, 773-74 (9th Cir. 1981); see also United States v. Cappaert,
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508 F.2d 313, 319 (9th Cir. 1974) (“[Government] officers who have no authority
at all to dispose of Government property cannot b[y] their conduct cause the
Government to lose its valuable rights by their acquiescence, laches, or failure to
act.” (quoting United States v. California, 332 U.S. 19, 40 (1947))). The district
court did not abuse its discretion in finding that there was no bad faith in the
lengthy delay.
AFFIRMED.
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