Paul Michelotti v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PAUL MICHELOTTI,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-5131
______________________
Appeal from the United States Court of Federal
Claims in No. 13-CV-0029, Chief Judge Emily C. Hewitt.
______________________
Decided: February 18, 2014
______________________
P AUL MICHELOTTI, of Boca Raton, Florida, pro se.
SONIA M. O RFIELD, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for defendant-appellee. With
her on the brief were S TUART F. D ELERY , Assistant Attor-
ney General, BRYANT SNEE, Acting Director, and D EBORAH
A. BYNUM , Assistant Director.
______________________
Before N EWMAN, L OURIE, and T ARANTO, Circuit Judges.

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MICHELOTTI v. US 2
P ER CURIAM .
Paul Michelotti appeals from a decision of the United
States Court of Federal Claims dismissing his complaint
for lack of subject matter jurisdiction and denying his
motion to amend the complaint. Michelotti v. United
States, Case No. 13-29 C, slip op. at 2 (Fed. Cl. Aug. 7,
2013), ECF No. 12. For the reasons set out below, we
affirm.
BACKGROUND
Mr. Michelotti is the owner and inventor of U.S. Pa-
tent No. 6,023,221, entitled “System to Activate Automo-
bile Hazard Warning Lights.” The ’221 patent claims a
system that automatically activates an automobile’s
hazard-warning lights when the system detects rapid
deceleration indicative of sudden braking. The stated aim
of the invention is to alert other drivers that there is an
emergency situation (rather than normal, slow braking),
thereby reducing rear-end collisions. See, e.g., ’221 patent
at col. 1, lines 6-29.
Mr. Michelotti states that embodiments of his inven-
tion—known as Automatic Hazard Warning Lights,
Emergency Stop Signals, or Adaptive Brakelights—have
been marketed by car manufacturers worldwide and have
been endorsed by organizations such as the United Na-
tions World Forum for Vehicle Harmonization. Appel-
lant’s Br. at 1-2. Nevertheless, the system is prohibited in
the United States under Federal Motor Vehicle Safety
Standard No. 108, which requires stop lamps (brake
lights) to be steady-burning rather than flashing, and
which requires hazard-warning lights to be “driver con-
trolled.” 49 C.F.R. § 571.108. In a letter to Mr. Michelotti
dated February 15, 2001, the Acting Chief Counsel of the
National Highway Traffic Safety Administration
(NHTSA) advised Mr. Michelotti that the NHTSA “inter-
prets ‘driver controlled’ as meaning that the hazard
warning signal unit must be activated and deactivated by

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MICHELOTTI v. US 3
the driver and not by automatic means.” Compl. ¶ 7,
Michelotti v. United States, Case No. 13-29 C (Fed. Cl.
Jan. 14, 2013), ECF No. 1; Def.’s Mot. to Dismiss at 4,
Michelotti v. United States, Case No. 13-29 C (Fed. Cl.
Apr. 5, 2013), ECF No. 6.
Approximately ten years later, Mr. Michelotti con-
tacted the NHTSA to ask that it reconsider Standard 108,
and there apparently was some communication to the
NHTSA showing the interest of Senator Bill Nelson in the
idea. Compl. ¶¶ 9-10. The NHTSA responded to Senator
Nelson in a letter dated April 6, 2012, stating:
Mr. Michelotti stated that automatic hazard
warning systems that are marketed outside of the
United States are preventing accidents; however,
NHTSA is not aware of any data to support this
statement. NHTSA continues to be concerned that
the “signal message” of lamps operating in this
method may be confusing to some drivers, and
therefore may increase crash risk. Without data to
support Mr. Michelotti’s safety benefit assertion,
NHTSA is not currently pursuing a modification
to our standard with respect to this pr[o]vision.
Compl. ¶ 11; Def.’s Mot. to Dismiss at 4. Mr. Michelotti
contests the NHTSA’s statement regarding lack of data,
alleging that the agency’s own internal studies support
his safety claims. Compl. ¶ 15; Appellant’s Reply at 2.
On January 14, 2013, Mr. Michelotti brought this suit
against the United States, claiming jurisdiction under 28
U.S.C. §§ 1491 and 1361 and 35 U.S.C. § 156. Compl. ¶ 1.
Mr. Michelotti alleged that the NHTSA was improperly
“denying a potentially life-saving automobile safety
system to the American People,” was “denying to Plaintiff
the rights and benefits of intellectual property owner-
ship,” and was “exceeding the authority granted to it
under the Highway Safety Act of 1970.” Compl. ¶¶ 2-3,
16. In his prayer for relief, Mr. Michelotti requested (a)

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MICHELOTTI v. US 4
an order requiring the NHTSA to provide proof that
enhanced brake lighting systems may increase crash risk
“or, in the absence of such evidence or proof, to rescind the
NHTSA prohibition against enhanced brake lighting
systems”; (b) if the prohibition is rescinded, an “order
requiring the United States Patent and Trademark Office
to extend the term of U.S. Patent 6,023,221 for a period of
time commensurate with time lost as a result of the
NHTSA prohibition”; and (c) “[s]uch other and further
relief to which the Plaintiff is entitled.” Compl. at 5.
The United States moved to dismiss Mr. Michelotti’s
complaint for lack of subject matter jurisdiction, arguing
that Mr. Michelotti was not seeking money damages and,
in any event, had not identified any “provision of law
conferring a substantive right for money damages against
the United States.” Def.’s Mot. to Dismiss at 5, 8. Shortly
thereafter, Mr. Michelotti moved to amend his complaint
to add a claim of patent infringement against the United
States, for which he sought a monetary award of $10,100
“or such greater amount as deemed appropriate by the
Court.” Pl.’s Mot. to Am. Compl. ¶ 4, Michelotti v. United
States, Case No. 13-29 C (Fed. Cl. May 15, 2013), ECF No.
10. Mr. Michelotti based his infringement allegation on
the NHTSA’s January 30, 2006 grant of a temporary
exemption from Standard 108 to Mercedes-Benz, allowing
the company to sell up to 5,000 vehicles with flashing
brake lights in the United States. Pl.’s Mot. to Am.
Compl. ¶ 3; Mercedes-Benz, U.S.A. LLC, 71 Fed. Reg.
4961-01 (Dep’t of Transp. Jan. 30, 2006) (grant of temp.
exemption). In support of his motion, Mr. Michelotti cited
a portion of the ’221 patent stating that “[a]lthough the
invention has been described with respect to controlling
the standard hazard warning lights on an automobile it is
understood that it may control any vehicle light system
for warning following vehicles.” Pl.’s Mot. to Am. Compl.
¶ 4; ’221 patent, col. 3, lines 63-66.

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MICHELOTTI v. US 5
On August 7, 2013, the Court of Federal Claims de-
nied Mr. Michelotti’s motion to amend his complaint.
ECF No. 12 at 4-6. The court determined that “[w]ith
respect to a patent infringement claim against the gov-
ernment,” the only even arguably relevant waiver of
sovereign immunity “is provided in money-mandating 28
U.S.C. § 1498,” which allows compensation for the unli-
censed use or manufacture of a patented invention by or
for the United States. Id. at 5. But the court ruled that
Mr. Michelotti neither invoked § 1498 nor alleged that the
United States used or manufactured his invention, con-
cluding that the alleged NHTSA grant of an exemption
from Standard 108 to Mercedes-Benz was not within the
scope of § 1498(a). Id. at 6. In addition, the court found
the action barred by the court’s six-year statute of limita-
tions under 28 U.S.C. § 2501, because Mr. Michelotti filed
his complaint nearly seven years after the NHTSA grant-
ed the exemption in question. Id.
After denying Mr. Michelotti’s motion to amend his
complaint, the Court of Federal Claims determined that
none of his remaining allegations provided a basis for the
court’s jurisdiction. The court explained: jurisdiction
under the Tucker Act, 28 U.S.C. § 1491, requires a sepa-
rate money-mandating source of substantive law, but Mr.
Michelotti had not identified any; jurisdiction under 28
U.S.C. § 1361 exists only in district courts; and 35 U.S.C.
§ 156, concerning patent term extensions, does not pro-
vide for judicial review and does not apply to the type of
product covered by Mr. Michelotti’s patent. Id. at 6-7.
The court further held that the Highway Safety Act of
1970 (also cited in Mr. Michelotti’s complaint) does not
contain a provision for judicial review, much less in the
Court of Federal Claims, and is not money-mandating.
Id. at 7. The court stated that it need not address the
United States’s characterization of Mr. Michelotti’s claims
against the NHTSA as seeking “essentially . . . an Admin-

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MICHELOTTI v. US 6
istrative Procedure Act (APA)-type review” outside the
court’s jurisdiction. Id. at 7-8.
Finally, after concluding that it was without jurisdic-
tion to hear Mr. Michelotti’s case, the Court of Federal
Claims considered whether transfer to another court that
might have jurisdiction over the claims would be appro-
priate. Id. at 8; 28 U.S.C. § 1631. The court determined
that transfer of Mr. Michelotti’s claims to another court
would not be in the interest of justice, as the court could
not identify any basis to conclude that either the NHTSA
or the PTO owed any duty of performance to Mr. Mi-
chelotti. ECF No. 12 at 8-9. Accordingly, the Court of
Federal Claims entered judgment for the United States.
Mr. Michelotti appeals, and we have jurisdiction under 28
U.S.C. § 1295(a)(3).
D ISCUSSION
A
We review the Court of Federal Claims’s denial of Mr.
Michelotti’s motion for leave to amend his complaint for
an abuse of discretion. Renda Marine, Inc. v. United
States, 509 F.3d 1372, 1379 (Fed. Cir. 2007).
We agree with the Court of Federal Claims that the
allegations in Mr. Michelotti’s amended complaint do not
make out a claim of patent infringement against the
United States under 28 U.S.C. § 1498(a). Even if Mr.
Michelotti is correct that the brake lighting system in-
stalled in certain Mercedes-Benz vehicles infringes his
patent, the NHTSA’s grant of an exemption from Stand-
ard 108 so that Mercedes-Benz could sell such vehicles
does not equate to use or manufacture of Mr. Michelotti’s
invention “by or for the United States,” as is required to
state a claim under 28 U.S.C. § 1498(a).
In his reply on appeal, Mr. Michelotti advances a new
allegation that the United States used his invention in
the course of conducting eleven studies on enhanced brake

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MICHELOTTI v. US 7
lighting systems. Appellant’s Reply at 4. We need not
consider whether such an allegation would have been
sufficient to make out a claim under 28 U.S.C. § 1498(a),
as Mr. Michelotti did not present this theory to the Court
of Federal Claims. While Mr. Michelotti did refer to the
NHTSA studies in his response to the government’s
motion to dismiss, Pl.’s Resp. to Mot. to Dismiss at 3,
Michelotti v. United States, Case No. 13-29 C (Fed. Cl.
Apr. 23, 2013), ECF No. 8, he never tied those studies to
his patent infringement claim; nor did he mention the
studies in his motion to amend. Thus, the Court of Fed-
eral Claims had no opportunity to consider Mr. Michelot-
ti’s allegation. We also note that the study he attaches to
support his allegations appears to indicate that the Unit-
ed States conducted only simulations of enhanced brake
lighting systems, not that any actual systems were ever
used or manufactured by or for the United States. See
App. to Appellant’s Reply.
Because we find no abuse of discretion in the denial of
Mr. Michelotti’s motion to amend, we affirm that denial.
B
We review the Court of Federal Claims’s dismissal of
Mr. Michelotti’s case for lack of subject matter jurisdiction
de novo. Smith v. United States, 709 F.3d 1114, 1115
(Fed. Cir. 2013).
1
Mr. Michelotti invokes the Tucker Act. That statute
confers jurisdiction, in a non-contract case, only where a
separate constitutional provision, statute, or regulation
creates a substantive right to recover money damages
from the United States. United States v. Testan, 424 U.S.
392, 398 (1976). The Act does not apply here.
Mr. Michelotti’s first argument is that the NHTSA
has “den[ied] a potentially life-saving automobile safety
system to the American People,” Compl. ¶ 2, which on

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MICHELOTTI v. US 8
appeal he contends implicates a constitutional “right to
life and protection from injury.” Appellant’s Br. at 3.
This contention evidently invokes due process rights, but
that is insufficient. The Due Process Clause of the Fifth
Amendment is not money-mandating. LeBlanc v. United
States, 50 F.3d 1025, 1028 (Fed. Cir. 1995) (Due Process
Clause of the Fifth Amendment was insufficient for
jurisdiction because it does not mandate the payment of
money by the government). The Due Process Clause of
the Fourteenth Amendment, which Mr. Michelotti in-
vokes on reply, see Appellant’s Reply at 8, does not apply
to the federal government and also is not money-
mandating. LeBlanc, 50 F.3d at 1028.
Mr. Michelotti also contends that the NHTSA has
“den[ied] to Plaintiff the rights and benefits of intellectual
property ownership.” Compl. ¶ 3. Although Mr. Mi-
chelotti’s complaint does not specify a constitutional
provision, statute, or regulation he believes was violated,
to the extent he intended to make out a claim under the
Takings Clause of the Fifth Amendment, he would have
had to allege “that the government, by some specific
action, took a private property interest for a public use
without just compensation.” Adams v. United States, 391
F.3d 1212, 1218 (Fed. Cir. 2004). Here, the United States
has not taken any property interest belonging to Mr.
Michelotti. Mr. Michelotti continues to hold the rights to
the subject matter covered by the ’221 patent. But a
patent grants only exclusionary rights—that is, the right
to preclude another from making, using, or selling the
patented invention. See 35 U.S.C. § 271. It does not
provide a property right against independent statutory or
regulatory safety-based prohibitions on making, using, or
selling the invention. Thus, the NHTSA’s promulgation of
Standard 108, which bars automobiles in the United
States from using a system like that claimed in the ’221
patent, does not take Mr. Michelotti’s patent rights.

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MICHELOTTI v. US 9
Mr. Michelotti further alleges that the NHTSA “ex-
ceed[ed] the authority granted to it under the Highway
Safety Act of 1970.” Compl. ¶ 16. He states that the
“NHTSA is prohibiting the vehicle safety system in the
United States based on little more than an unsupported
assumption,” and that the “Administrative Procedure Act
requires the agency to base its rulings on facts and evi-
dence.” Appellant’s Reply at 2-3. These allegations also
fail to establish any basis for jurisdiction in the Court of
Federal Claims, because “the APA does not authorize an
award of money damages.” Wopsock v. Natchees, 454 F.3d
1327, 1333 (Fed. Cir. 2006). Thus, none of Mr. Michelot-
ti’s claims against the NHTSA provides a basis for Tucker
Act jurisdiction in the Court of Federal Claims.
2
There is no other basis for jurisdiction. Mr. Michelot-
ti’s complaint invokes 28 U.S.C. § 1361 as a basis for
jurisdiction over his request to compel the NHTSA to
comply with his demands. Compl. ¶ 1. But, by its plain
language, § 1361 grants jurisdiction only to “district
courts” (and is not money-mandating, so cannot indirectly
support Tucker Act jurisdiction).
Jurisdiction can no more rest on 35 U.S.C. § 156,
which provides for patent term extensions in certain
cases. Mr. Michelotti requests an “order requiring the
United States Patent and Trademark Office to extend the
term of U.S. Patent 6,023,221 for a period of time com-
mensurate with time lost as a result of the NHTSA prohi-
bition.” Compl. at 1, 5. But § 156—which applies only to
drug products and certain medical device, food additive,
or color additive products, 35 U.S.C. § 156(f)—does not
contain any provision for judicial review, much less in the

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MICHELOTTI v. US 10
Court of Federal Claims (and is not money-mandating, so
cannot indirectly support Tucker Act jurisdiction).1
C
Mr. Michelotti requests that, if we find his case be-
yond the limits of the jurisdiction of the Court of Federal
Claims (as we do), we order his case “transferred to an-
other court that is not so limited.” Appellant’s Br. at 4.
Under 28 U.S.C. § 1631, “if it is in the interest of jus-
tice,” a court may transfer an action or appeal “to any
other . . . court in which the action or appeal could have
been brought at the time it was filed or noticed.” At
bottom, Mr. Michelotti wishes to challenge the NHTSA’s
Standard 108. But, as to the order promulgating the
relevant aspect of Standard 108, he makes no claim that
he filed this suit within 59 days of that order, as required
by 49 U.S.C. § 30161(a). And as to any NHTSA decision
regarding modifying the Standard, there is no final agen-
cy action subject to judicial review. Air Brake Sys., Inc. v.
Mineta, 357 F.3d 632, 646 (6th Cir. 2004) (opinion letters
from the NHTSA’s Acting Chief Counsel did not consti-
tute final agency action). Accordingly, transfer under 28
U.S.C. § 1631 is not appropriate.
Although we cannot, as Mr. Michelotti requests, “re-
mand this matter to the United States Department of
Transportation for administrative review,” Appellant’s
1 Although Mr. Michelotti does not invoke it, 35
U.S.C. § 154(b) also covers patent term extensions (for
patents relating to all subject matters). But § 154(b) is
limited to three narrow circumstances not present here;
and it requires an application to the PTO before pursuing
an appeal, which would not go to the Court of Federal
Claims. See 35 U.S.C. § 154(b)(1), (3)-(4). The provision,
moreover, is not money-mandating, so would not indirect-
ly support Tucker Act jurisdiction.

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MICHELOTTI v. US 11
Reply at 9, Mr. Michelotti is still free to file a petition
with the NHTSA requesting that Standard 108 be
amended. See 49 U.S.C. § 30162(a)(1); 49 C.F.R. § 552.3.
Should that petition be denied, judicial review in a desig-
nated court other than the Court of Federal Claims may
then be available. See, e.g., Pub. Citizen, Inc. v. Nat’l
Highway Traffic Safety Admin., 489 F.3d 1279, 1287 (D.C.
Cir. 2007); Fox Television Stations, Inc. v. FCC, 280 F.3d
1027, 1037 (D.C. Cir. 2002).
CONCLUSION
For the foregoing reasons, we affirm the judgment of
the Court of Federal Claims.
No costs.
AFFIRMED

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