UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ LARRY DRAKE HANSEN, Plaintiff - Appellant,

v. UNITED STATES OF AMERICA, Defendant - Appellee. No. 20-4055 (D.C. No. 2:19-CV-00102-DB) (D. Utah)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, HOLMES and BACHARACH , Circuit Judges.

________________ _________________ Larry Drake Hansen, proceeding pro se, 1 appeals from the dist rict court’s order granting the government’s motion to dismi ss under Federal Rule of Civil Procedure 12(b)(1) for lack of jurisdiction and di smissing his case as moot. Exercising jurisdiction pursuant to 28 U. S.C. § 1291, we reverse.

* After examining the briefs and appella te record, this pa nel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 We liberally construe Mr. Hansen’s pr o se brief, but we do not act as his advocate. See Yang v. Archuleta , 525 F.3d 925, 927 n. 1 (10th Cir. 2008). FILED United States Court of Appeals Tenth Circuit 

### March 17, 2021 Christopher M. Wolpert Clerk of Court2 I. Background Mr. Hansen filed his complaint agains t the government under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1), 2671-2680. “The FTCA waives the federal government’s soverei gn immunity for ‘the negligent or wrongful act or omission’ of a federal employee ‘acti ng within the scope of his office or employment.’” Elder v. United States , 312 F.3d 1172, 1176 (10th Cir. 2002) (quoting 28 U.S.C. § 1346(b)(1)). The alle gations in Mr. Hansen’s complaint arose from his attempt to file a patent application, his further attempts to revive his patent application after it had been deemed abandoned, and Pa tricia Faison-Ball’s actions during this process. He alleged that Ms. Faison-Ball was a federal employee who was at all times acting in her official du ties as an employee of the United States Patent and Trademark Office (USPTO). He further alleged that (1) the government owed him one or more duties and/or sta ndards of care; (2) th e government breached those duties and/or standards of care; and (3) the breaches were the proximate cause of his damages. He sought damages to compensate him for injury to the term of his patent, which he calculated from the date he alleged was the filing date of his nonprovisional patent application throu gh the twenty-year te rm of the patent. The government filed a Rule 12(b)(1) mo tion to dismiss the complaint for lack of jurisdiction (“First Rule 12(b)(1) motion”) based on se veral arguments related to the FTCA. Mr. Hansen opposed the motion. While the First Rule 12(b)(1) moti on was pending, Mr. Hansen filed a supplemental pleading notifying the district court that the USPTO had granted his3 fourth renewed petition to revive his patent application. The government then filed the motion that is the subject of this appeal (“Second Ru le 12(b)(1) motion”). It argued that the case was now moot and shou ld be dismissed. It explained: Mr. Hansen’s complaint is based entirel y on an allegedly improper holding of abandonment of the Application an d dismissal of his repeated Petitions to Revive. However, as Mr. Hansen’s supplementation demonstrates, his most recent Petition to Revive has been granted and his Application is no longer abandoned. Accordingly, the case or controversy at the center of Mr. Hansen’s Complain t has been resolved. R. at 465 (citation omitted). Mr. Hansen responded that although the USPTO had finally re vived his patent application, it did so only after he filed five petitions to revi ve “over a period of 3 years, 6 months and 15 days (or 1,293 total days) afte r filing the Application.” Id. at 468. He asserted that this was “[v]al uable time that can never be regained” and “constituted an otherwise irrepa rable injury in fact . . . for which [he] seeks money damages under [§ 1346(b)] of which remain unredressed.” Id. (emphasis omitted). He further asserted that his action was not an action for in junctive, declaratory relief or mandamus. He argued th at “[w]hatever relief the USPTO may have eventually provided is beside the poi nt” because “‘[a] defendant ’s voluntary cessation of allegedly unlawful conduct ordinarily does not suffice to moot a case.’” Id. (quoting Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc. , 528 U.S. 167, 174 (2000)). A magistrate judge considered both motio ns to dismiss, recommending that the Second Rule 12(b)(1) motion be granted and the First Rule 12(b)(1) motion be4 deemed moot. The judge de termined that “[a]ny allege d damages for the loss of ‘valuable time’” were speculativ e, R. at 475, and held that “‘[d]amages that are based on conjecture, speculation, or gue sswork are not recoverable,’” id. at 476 (quoting Brown v. Presbyteri an Healthcare Servs. , 101 F.3d 1324, 1330 ( 10th Cir. 1996)). The judge also determined that “any unlaw ful conduct, which is at best highly questionable as pled, pert ained to an application that is now granted.” Id. The judge therefore concluded that the case was moot. Mr. Hansen filed written objections to the recommendation. He argued that his case was for damages brought under the FT CA for injury to th e term of a patent caused by “the initial negligent . . . issuan ce of the Notice to File Missing Parts (NFMP) that was not received, the holding of the abandonment that resulted from non-receipt of the NFMP, and the subs equent denial of the first four (4) Petitions to Revive th e abandoned application.” Id. at 479 (footnotes omitted). He reiterated that “[t]his ca se is not for mandamus, whic h surely would have mooted the case, but for money damages under the FTCA.” Id. at 479 n.14. He also argued that the damages he sought were not specula tive and were recoverabl e, “albeit even if perhaps only a percentage of that demanded for an amount to be determined at trial.” Id. at 482. The district court adopted the reco mmendation, granted the Second Rule 12(b)(1) motion, and dismissed the case as moot. Mr. Hansen then filed a motion seeking post-judgment relief under Federal Rule of Civ il Procedure 60, which the district court denied. This appeal followed.5 II. Discussion “We review de novo a dismissal pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.” Lucero v. Bureau of Co llection Recovery, Inc. , 639 F.3d 1239, 1242 (10th Cir. 2011). On appeal, Mr. Hansen argues that the district court erre d in dismissing his complaint as moot because it is a “tort claim under 28 U.S.C. § 1346(b), for money damages ” and “[n]o Complaint(s) seeking dama ges have ever been dismissed as moot.” Aplt. Br. at 13. For support, he relies on precedent from our court and the Supreme Court, arguing that “‘[b]y defin ition claims for past damages cannot be deemed moot.’” Id. (emphasis omitted) (quoting Taxpayers for the Animas-La Plata Referendum v. Animas-LaPla ta Water Conservancy Dist ., 739 F.2d 1472, 1479 (10th Cir. 1984)). He fu rther argues that “‘[u]nlike claims for injunctive relief challenging ongoing conduct, a claim for damages cannot evade review; it remains live until it is se ttled, judicially resolved, or barre d by a statute of limitations.’” Id. (quoting Genesis Healthcare Corp. v. Symczyk , 133 S. Ct. 1523, 1531 (2013)). In its response brief on appeal, the government does not directly address Mr. Hansen’s arguments that his damages claim precludes a finding of mootness. Instead, the government asserts that the district court prope rly rejected Mr. Hansen’s arguments against mootness because “(1) the alleged improprieties to which his Complaint was directed had b een resolved through his ow n administrative efforts and (2) his allegations relating to the loss of va luable time were, at best, speculative, if not outright conjecture.” Apl ee. Resp. Br. at 13-14. The government also repeats the6 quote from the magistrate judge’s deci sion that “‘damages that are based on conjecture, speculation, or guess work are not recoverable.’” Id. at 14 (quoting
Brown , 101 F.3d at 1330). The government then asserts that “[a]s a result of Mr. Hansen’s successful actions in petiti oning the USPTO for revival of his patent application, the matter in controversy came to an end and the District Court correctly found the case to be moot.” Id. at 15. The government cites no authority from ei ther this court or the Supreme Court upholding the dismissal of a complaint s eeking damages for past injury based on mootness. Instead, the case law supports Mr. Hans en’s position. See, e.g. , Taxpayers , 739 F.2d at 1479 (“The district court acted properly in determining that [appellant’s] claims for dama ges were not moot. Indeed, by definition claims for past damages cannot be deemed moot.”); see also Comm. for th e First Amend. v. Campbell , 962 F.2d 1517, 1526 (10t h Cir. 1992) (concluding that although a request for injunctive relief was properly dismisse d as moot, “the dist rict court erred in dismissing the nominal damage s claim which relates to past (not future) conduct”). We do not agree with the government that the revival of Mr. Hansen’s patent application resolved the controversy and mooted his complaint. Mr. Hansen’s complaint did not seek revival of his patent application; rather, lib erally construed, it sought damages based in part on an alleged injury related to his attempts to file and7 then revive his abandoned patent application. 2 The revival of hi s patent application does not redress that a lleged past injury. To support its position that the district court’s mootness di smissal was correct, the government points to and relies on the district court’s conclusion that Mr. Hansen’s claim for damages is specula tive and therefore not recoverable, citing
Brown , 101 F.3d at 1330, and Smith v. Babcock Poultry Farms, Inc. , 469 F.2d 456, 459 (10th Cir. 1972). Though those cases do perhaps stand for the proposition that a speculative claim for damages is not recovera ble, neither case offers that holding in the context of a dismissal fo r mootness, nor does either case hold that a claim for damages resulting from past injury is moot if it lacks sufficient evidentiary support.
In Brown , the district court vaca ted a jury award of comp ensatory damages after concluding the evidence was insufficient to establish proof of damages, and we reversed because we concluded that th e damages award was “reasonably based upon sufficient evidence in the record.” 101 F.3d at 1331. In Smith , we upheld a trial court’s award of damages th at was supported by “reasonabl y certain facts” and was therefore not based on “specula tion or conjecture.” 469 F.2d at 459. Again, though

2 Mr. Hansen’s damages request in his complaint also app ears to contemplate damages for future injury based on his be lief that his abandoned application would never be revived. It is po ssible that the revival of hi s application would moot any request for future damages after the date of the revival, but we do not decide that question, and that possibility does not cha nge the disposition of this appeal. The revival of Mr. Hansen’s pate nt application does not affect the complaint’s request for damages for past injury ba sed on alleged negligent acts related to the time period starting from the date of his alleged in itial filing of his patent application on December 6, 2015. The USPTO did not gran t his Fourth Renewed Petition to Revive until June 21, 2019.8 these cases offer general gui dance on the necessity of evidentiary support for an award of damages, they do not provide support for the notion that a claim for damages based on past injury can be dismissed as moot. In fact, Brown and Smith both illustrate that the que stion of whether sufficient evidence exists to support a damages awar d or whether damages are too speculative to support an award is an evidence-based, me rits determination. And “[t]he doctrine of mootness in no way depends on the me rits of the plaintiff’s contention.” Keller Tank Servs. II, Inc. v. Comm’r , 854 F.3d 1178, 1194 (10th Cir. 2017) (ellipsis and internal quotation marks omitted). “Stated differently, the cour t assumes that the plaintiff will receive the relief that he requests in this l itigation, and then proceeds to determine whether there is a substantial likelihood that that re lief will redress his asserted injury.” Id. (internal quotation marks om itted). Here, Mr. Hansen’s complaint requested relief in the form of damages to comp ensate, in part, his past injury. “The constitutional mootness doctrine is grounded in the Article III requirement that federa l courts may only decide actual ongoing cases or controversies.” Id. at 1192-93 (brackets and intern al quotation marks omitted). Mr. Hansen correctly asserts that “[a] case becomes moot only when it is impossible for a court to grant any effectual relief what ever to the prevailing party.” Aplt. Br. at 13 (internal quotation marks omitted). There remains a live case or controversy here because the district court could grant Mr. Ha nsen relief in the form of damages for past injury if he were to pr evail on his tort claim. Any potential defect in his request9 for damages goes to the merits of his clai m and is not consider ed as part of the mootness inquiry. See, e.g. , Baca v. Colo. Dep’t of State , 935 F.3d 887, 925 (10th Cir. 2019), overruled on other grounds by 140 S. Ct. 2316 (2020) (explaining that court could not consider merits of argument related to defect in 42 U.S.C. § 1983 claim as part of the mootness inquiry). III. Conclusion For the foregoing reasons, we reverse th e judgment of the district court granting the government’s Second Ru le 12(b)(1) motion and dismissing Mr. Hansen’s complaint as moot.

Entered for the Court Timothy M. Tymkovich Chief Judge