United States Court of Appeals 

for the Federal Circuit ______________________ 

RAYMOND E. STAUFFER,

Plaintiff-Appellant,

v.

BROOKS BROTHERS GROUP, INC., 

formerly known as Retail Brand Alliance, Inc., 

formerly known as Brooks Brothers, Inc., 

Defendant-Appellee, 

AND

UNITED STATES,

Intervenor-Appellee. 

______________________ 

2013-1180

______________________ 

Appeal from the United States District Court for the

Southern District of New York in No. 08-CV-10369, Judge 

Sidney H. Stein.

______________________ 

Decided: July 10, 2014

______________________ 

RAYMOND E. STAUFFER, of Chatham, New Jersey, argued pro se.

STEPHEN L. BAKER, Baker & Rannells, PA, of Raritan, 

New Jersey, argued for defendant-appellee. With him on 
2 STAUFFER v. BROOKS BROTHERS GROUP, INC. 

the brief were NEIL B. FRIEDMAN and RYAN A.

MCGONIGLE. 

ADAM C. JED, Attorney, Appellate Staff, Civil Division, 

United States Department of Justice, of Washington, DC, 

argued for intervenor-appellee. With him on the brief 

were STUART F. DELERY, Assistant Attorney General, 

PREET BHARARA, United States Attorney, and SCOTT R.

MCINTOSH, Attorney.

______________________ 

Before LOURIE, SCHALL, and MOORE, Circuit Judges.

SCHALL, Circuit Judge.

Pro se plaintiff-appellant Raymond E. Stauffer 

brought this qui tam action in the United States District 

Court for the Southern District of New York in 2008.1 In 

his suit, Mr. Stauffer sued defendant-appellee Brooks 

Brothers, Inc. (“Brooks Brothers”) under the then-extant 

version of the false-marking statute, 35 U.S.C. § 292 

(2006).2 Mr. Stauffer alleged that Brooks Brothers violated the statute by marking its bow ties with expired patent 

numbers. 

In 2011, while Mr. Stauffer’s action was pending, the 

President signed into law the America Invents Act, Pub. 

L. No. 112-29, 125 Stat. 284 (2011) (the “AIA”). The AIA 

1 A qui tam action is one brought under a statute 

that allows a private person to sue for a penalty on behalf 

of the government or a public institution. In return, the 

government or public institution shares a portion of the 

penalty. Black’s Law Dictionary 1368 (9th ed. 2009).

2 Brooks Brothers, Inc. was merged into defendantappellee Retail Brand Alliance, Inc. and no longer exists. 

On August 8, 2011, Retail Brand Alliance, Inc. changed 

its name to Brooks Brothers Group, Inc.

 
STAUFFER v. BROOKS BROTHERS GROUP, INC. 3

made three significant changes to the false-marking 

statute that affected Mr. Stauffer’s claim: (1) it eliminated 

the statute’s qui tam provision, changing the law so that 

only a “person who has suffered a competitive injury” may 

bring a claim, AIA § 16(b)(2); (2) it expressly stated that 

marking a product with an expired patent is not a falsemarking violation, id. § 16(b)(3); and (3) it expressly 

stated that these amendments apply to all pending cases, 

id. § 16(b)(4).

After the AIA became law and eliminated the qui tam

provision of the false-marking statute, Mr. Stauffer

acknowledged that he no longer had standing to pursue 

his lawsuit. The district court subsequently issued an 

order directing him to show cause why, in light of the 

AIA, his suit should not be dismissed for lack of standing. 

Mr. Stauffer responded by arguing that the AIA amendments were unconstitutional because they amounted to a 

pardon by Congress, thus violating the doctrine of separation of powers. He also argued that, by making the elimination of the qui tam provision applicable to pending 

suits, the statute violated the common-law principle that 

prohibits use of a pardon to vitiate a qui tam action once

the action has commenced. The government, as an intervenor, defended the constitutionality of the AIA.

On December 19, 2012, the district court dismissed 

Mr. Stauffer’s suit for lack of standing due to the AIA’s 

elimination of the false-marking statute’s qui tam provision, Stauffer v. Brooks Bros., Inc., No. 08-Civ-10369, 

2012 WL 6621374 (S.D.N.Y. Dec. 19, 2012) (“Final Decision”), and on January 16, 2013, the court denied reconsideration, Stauffer v. Brooks Bros., Inc., No. 08-Civ10369 (S.D.N.Y. Jan. 16, 2013). Mr. Stauffer now appeals 

the dismissal of his suit. For the reasons set forth below, 

we affirm.
4 STAUFFER v. BROOKS BROTHERS GROUP, INC. 

BACKGROUND

I.

The false-marking statute, 35 U.S.C. § 292, makes unlawful various acts of falsely marking products with 

patent numbers. Under § 292(a), a person who violates 

the statute “[s]hall be fined not more than $500 for every 

such offense.” At the time Mr. Stauffer filed his suit, 

§ 292(b) allowed any person to sue for the penalty. If the 

suit was successful, one half of the penalty paid would go 

to the United States. 

The basis of Mr. Stauffer’s allegation was that Brooks 

Brothers had violated the false-marking statute by marking its bow ties with patent numbers that had expired 

more than a half century ago. However, before reaching 

the merits of the suit and before enactment of the AIA, 

the district court dismissed it for lack of standing, finding 

that Mr. Stauffer failed to satisfy the constitutional 

requirement of an “injury in fact.” Stauffer v. Brooks 

Bros., Inc., 615 F. Supp. 2d 248 (S.D.N.Y. 2009). Subsequently, the government sought to intervene, contending 

that the court’s dismissal drew into question the constitutionality of the statute. Stauffer v. Brooks Bros., Inc., No. 

08-Civ-10369, 2009 WL 1675397, at *1 (S.D.N.Y. June 15, 

2009). The district court denied the government’s request. Id. at *4. 

On appeal, we reversed both decisions of the district 

court. Stauffer v. Brooks Bros., Inc., 619 F.3d 1321, 1322 

(Fed. Cir. 2010). First, we held that, if Mr. Stauffer’s 

allegations were correct, the United States had suffered 

an “injury in fact” and that therefore Mr. Stauffer, as an 

assignee of the government’s damages claim, satisfied the 

requirement of showing standing. Id. at 1328. Second, 

we held that the government had the right to intervene to 

protect its interest. Id. at 1329. Accordingly, we remanded for further proceedings. 
STAUFFER v. BROOKS BROTHERS GROUP, INC. 5

II.

While the case was pending, the President signed into 

law the AIA. As noted above, the AIA made three significant changes to the false-marking statute: it eliminated 

the statute’s qui tam provision; it expressly stated that 

marking a product with an expired patent is not a violation of the statute; and it provided that the amendments 

apply to all pending cases. AIA § 16(b). 

After enactment of the AIA, Mr. Stauffer conceded 

that the amendments eliminated his standing and left 

him with no claim for relief on the merits. Final Decision

at *1. He contended, however, that applying the amendments retroactively violated the Constitution’s separation 

of powers. In response to the district court’s order to show 

cause why his case should not be dismissed, Mr. Stauffer

argued that the retroactive application of the amendments usurped the President’s pardon power. According 

to Mr. Stauffer, Brooks Brothers committed a criminal act 

by falsely marking its bow ties with expired patent numbers. By eliminating Brooks Brothers’ criminal liability, 

Mr. Stauffer claimed, Congress effectuated a pardon—a 

right exclusively granted to the President. Mr. Stauffer

also argued that the amendments to the false-marking 

statute violated the common-law qui tam principle that 

prohibits use of a pardon to vitiate a qui tam action once 

it has commenced. In a subsequent reply brief, Mr. 

Stauffer raised additional constitutional arguments. He 

also argued in his reply brief that, as an alternative basis 

for standing, he had suffered a “competitive injury,” as 

that phrase is used in the AIA. According to Mr. Stauffer’s argument, Brooks Brothers’ false marking chilled 

competition and thus inflated the price he paid for his 

bow ties, thereby injuring him. 

Regarding the pardon-power argument, the district 

court ruled that, assuming the false-marking statute 

amendments immunized certain law breakers, Congress’s 
6 STAUFFER v. BROOKS BROTHERS GROUP, INC. 

action amounted to a general amnesty. Final Decision at 

*3. Relying on Brown v. Walker, 161 U.S. 591 (1896), the 

court held that Congress had the power to grant a general 

amnesty without encroaching on the President’s power. 

Moreover, rather than usurp the President’s power, the 

court found, the amendments instead placed the authority 

to seek the statutory penalty for false marking solely 

within the President’s hands. Final Decision at *3. 

Regarding Mr. Stauffer’s additional arguments, the 

court held that Mr. Stauffer lacked standing to make 

them and that he had waived the arguments by failing to 

raise them in his opening response to the court’s showcause order. Id. at *4 n.3. The court, however, did address Mr. Stauffer’s claim that he had standing because 

he had suffered a “competitive injury.” Relying on our 

decision in Brooks v. Dunlop Manufacturing, Inc., 702 

F.3d 624 (Fed. Cir. 2012), the court found that Mr. Stauffer could not have suffered a “competitive injury” because 

he is a consumer of bow ties—not a competitor of Brooks 

Brothers. Final Decision at *4. 

Mr. Stauffer timely appealed the dismissal. We have 

jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). 

DISCUSSION

I.

“The question of standing to sue is a jurisdictional one

. . . which we review de novo.” Rite-Hite Corp. v. Kelley 

Co., 56 F.3d 1538, 1551 (Fed. Cir. 1995) (en banc) (citations omitted). “The constitutionality of an act of Congress is a question of law that is likewise reviewed de 

novo.” Brooks, 702 F.3d at 628 (citing Thomson Multimedia Inc. v. United States, 340 F.3d 1355, 1359 (Fed. Cir. 

2003)). 

On appeal, Mr. Stauffer makes two main arguments, 

which we address in turn. 
STAUFFER v. BROOKS BROTHERS GROUP, INC. 7

II.

A.

Mr. Stauffer first contends that the retroactive application of the AIA amendments amounts to a mass pardon 

of past acts of false marking. According to Mr. Stauffer, 

the false-marking statute is a criminal statute and, before 

enactment of the AIA, marking a product with an expired 

patent number was a criminal violation. After enactment 

of the AIA, however, such actions are no longer punishable. Mr. Stauffer therefore argues that the amendments 

are unconstitutional because they amount to a pardon 

that only the President—not Congress—can grant. 

Second, Mr. Stauffer contends that the retroactive 

amendments which eliminate his standing, as a qui tam

plaintiff, amount to an unconstitutional deprivation of his 

rights, by violating the common-law principle that prohibits use of a pardon to vitiate a qui tam action once it has 

commenced. According to Mr. Stauffer, pardons are 

limited to the same extent they originally were limited in 

England. As stated in Blackstone’s Commentaries on the 

Laws of England, Mr. Stauffer argues, a pardon cannot be 

used to vitiate an informer’s action after the action has 

been commenced because the informer has already acquired a private-property interest in his share of the 

penalty. 

Brooks Brothers responds that the false-marking 

statute is not a criminal statute and that there thus was 

no criminal act to pardon. Rather, Brooks Brothers urges, 

the statute is penal in nature with a civil fine. Moreover, 

Brooks Brothers contends, the President signed the AIA 

into law himself, so the argument that Congress bypassed 

the President in granting a pardon is illogical on its face. 

Finally, Brooks Brothers argues, even if the false-marking 

statute was criminal in nature, Congress did not grant a 

pardon to anyone. Rather, it changed the law to redefine 

what constitutes false marking. 
8 STAUFFER v. BROOKS BROTHERS GROUP, INC. 

Regarding Mr. Stauffer’s second argument, Brooks 

Brothers responds that the Supreme Court decided the 

issue over a hundred years ago in the case of United 

States v. Connor, 138 U.S. 61 (1891), when it held that 

Congress could constitutionally amend laws in a way that 

nullified a pending suit of a qui tam claimant. In any 

event, Brooks Brothers also responds that there was 

never a common-law right to a qui tam suit in England. 

Likewise, there was no common-law qui tam right when 

the United States was formed. Accordingly, Brooks 

Brothers urges, Mr. Stauffer’s argument fails because 

there was no common-law right to qui tam standing for 

Congress to have vitiated in the AIA. 

The government contends that Mr. Stauffer lacks 

standing to make his pardon-power argument because a 

favorable decision would not redress his injury. According 

to the government, if we strike down the AIA amendment 

that eliminated liability for marking products with expired patent numbers, Mr. Stauffer’s lawsuit would still 

need to be dismissed because the qui tam provision upon 

which he originally brought suit no longer exists. Indeed, 

the government argues, it has long been held that the 

legislature could halt pending qui tam actions as it 

wished. A decision on Mr. Stauffer’s pardon-power argument, therefore, the government contends, would be 

nothing more than an advisory opinion. 

On the merits, the government contends that no one 

has a vested interest in a rule of law and that Congress is 

free to change the laws and eliminate statutorily created 

causes of action. The government further argues that a 

change in the substantive law is not a pardon. As the 

government sees it, by changing the definition of false 

marking, Congress did not exempt people from the punishment the law inflicts but instead changed the law 

itself. Finally, the government urges, false-marking 

actions are civil actions and there can be no pardon for a 

civil penalty.
STAUFFER v. BROOKS BROTHERS GROUP, INC. 9

Regarding his second argument, the government responds that Mr. Stauffer mistakenly relies on the observation that, at common law in England, the King’s pardon 

power did not reach pending qui tam suits. Mr. Stauffer

is mistaken, the government explains, because a change 

in the law to a pending lawsuit is not a pardon, and it was 

well established at common law that the parliament in 

England could release an informer’s interest even after he 

commenced a suit. 

In reply, regarding the government’s contention that 

he has no standing to make his pardon-power argument 

on appeal, Mr. Stauffer argues that he has collectively 

challenged both the expired-patent provision as well as 

the retroactivity provision of the AIA amendments, and 

that striking down all of the false-marking amendments 

would redress his injury.

B.

Before addressing the merits of an appeal, we must 

first resolve whether we have jurisdiction over the matter 

appealed. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 

83, 94–95 (1998). Whether a plaintiff has standing is a 

jurisdictional question. Lewis v. Casey, 518 U.S. 343, 349 

n.1 (1996). Before turning to the merits of Mr. Stauffer’s 

pardon-power argument, therefore, we address first the 

government’s contention that Mr. Stauffer lacks standing 

to even make such an argument. 

The Supreme Court has explained that, in order for 

there to be standing in a case, at a minimum, three requirements must be met: 

First, the plaintiff must have suffered an “injury 

in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, and 

(b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Second, there must be a causal connection between the injury and the conduct 
10 STAUFFER v. BROOKS BROTHERS GROUP, INC. 

complained of—the injury has to be “fairly . . . 

trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent 

action of some third party not before the court.” 

Third, it must be “likely,” as opposed to merely 

“speculative,” that the injury will be “redressed by 

a favorable decision.”

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 

(1992) (citations omitted). If independent legal provisions 

bar a claim and only one provision is at issue, then a 

favorable decision might not redress a party’s injury. See

Renne v. Geary, 501 U.S. 312, 319 (1991) (questioning 

whether redressability existed when two separate legal 

provisions barred the conduct of the litigants, but the 

constitutionality of only one of the provisions was before 

the Court). 

The government’s contention goes to the third element of constitutional standing—redressability. According to the government, if we strike down as 

unconstitutional the AIA amendment that eliminated 

liability for marking products with expired patent numbers, Mr. Stauffer could not continue his suit because the 

AIA eliminated the false-marking statute’s qui tam provision, so that now only a person who has suffered a competitive injury may bring a claim under the statute. 

Therefore, the government concludes, a favorable decision 

could not “redress” Mr. Stauffer’s injury.

We conclude that Mr. Stauffer has the necessary 

standing on appeal to make his arguments. First, Mr. 

Stauffer seeks to establish that Congress carried out an 

unconstitutional pardon when it amended the falsemarking statute to permit marking with expired patent 

numbers. Second, he seeks to show that Congress could 

not have constitutionally eliminated the ability of a qui 

tam plaintiff to enforce false-marking violations. Were he 

to win on both issues, it is likely rather than speculative 
STAUFFER v. BROOKS BROTHERS GROUP, INC. 11

that a favorable decision would redress his alleged injury. 

We consider each issue in turn. 

III.

A.

Striking down an Act of Congress as unconstitutional 

“is the gravest and most delicate duty” which a court may 

be called upon to perform. Blodgett v. Holden, 275 U.S. 

142, 147–48 (1927) (opinion of Holmes, J.). We have 

previously addressed and rejected challenges to the 

constitutionality of the false-marking statute amendments on two different occasions. In Brooks, 702 F.3d at 

632–33, we upheld the constitutionality of the retroactive 

elimination of the statute’s qui tam provision, concluding 

that retroactive elimination did not violate the Due Process Clause or the Intellectual Property Clause of the 

Constitution. And, in Rogers v. Tristar Products, Inc., 

Nos. 2011-1494, 2011-1495, 2012 WL 1660604, at *2–3 

(Fed. Cir. May 2, 2012) (nonprecedential), we rejected the 

argument that qui tam plaintiffs have vested rights in 

pre-AIA lawsuits and concluded that making the amendments to the false-marking statute retroactive did not 

violate the Takings Clause or the Due Process Clause of 

the Constitution. We now conclude that the AIA amendment to the false-marking statute that eliminated liability 

for expired patents does not constitute an impermissible 

pardon.

The U.S. Constitution grants the President the “power 

to grant reprieves and pardons for offenses against the 

United States.” U.S. Const. art. II, § 2. The grant of a 

pardon is an “executive action that mitigates or sets aside 

punishment for a crime.” Nixon v. United States, 506 U.S. 

224, 232 (1993) (quoting Black’s Law Dictionary 1113 (6th 

ed. 1990)). Rather than granting a pardon, the amendments to the false-marking statute are better characterized as repealing a law, an action undoubtedly within 

Congress’s power. Indeed, at common law, it has long 
12 STAUFFER v. BROOKS BROTHERS GROUP, INC. 

been held that Congress has the power to “repeal[] a 

penal provision (whether criminal or civil)” and that “such 

repeals [are] understood to preclude punishment for acts 

antedating the repeal.” Landgraf v. USI Film Prods., 511 

U.S. 244, 270–71 (1994) (collecting cases); see also United 

States v. Chambers, 291 U.S. 217, 223 (1934) (“In case a 

statute is repealed or rendered inoperative, no further 

proceedings can be had to enforce it in pending prosecutions unless competent authority has kept the statute 

alive for that purpose.”).3 Significantly, this is not a case 

where Congress attempted to set aside an already adjudicated punishment for a specific individual or a group of 

individuals; rather, Congress repealed the provisions of 

the false-marking statute that it did not wish to remain in 

force. The amendments, therefore, do not constitute a

pardon.

B.

Further, we conclude that the AIA amendments do 

not violate the common-law principle on which Mr. Stauffer relies because (1) he has no vested rights in his lawsuit, and (2) the AIA amendments do not constitute a 

pardon. First, a plaintiff has no vested rights in a lawsuit 

until final judgment has been entered. McCullough v. 

Virginia, 172 U.S. 102, 123–24 (1898). Because Mr. 

Stauffer’s case is still pending and has not reached final 

judgment, he has no vested rights in it. Further, we have 

already considered and rejected the argument that a 

litigant like Mr. Stauffer enters into a contract with the 

government upon filing a qui tam false-marking claim. 

3 The federal saving statute, 1 U.S.C. § 109, overrides the common law rule and keeps repealed statutes 

alive for pending prosecutions except where the repealing 

act expressly provides otherwise. Here, the AIA amendments expressly provide that they apply to pending cases. 

AIA § 16(b)(4). 

 
STAUFFER v. BROOKS BROTHERS GROUP, INC. 13

Brooks, 702 F.3d at 632. Even if the law had not changed, 

Mr. Stauffer might still have lost his lawsuit against 

Brooks Brothers. He, therefore, could not have acquired a 

private-property interest in his share of the statutory 

penalty simply by filing suit. See id. In addition, as noted 

above, the AIA amendments do not constitute a pardon. 

The common-law principle on which Mr. Stauffer relies, 

therefore, does not apply here and does not save his suit 

from dismissal.

IV.

Finally, Mr. Stauffer makes a host of additional arguments on appeal that were not properly raised before 

the district court. Regarding the constitutionality of the 

false-marking statute, he argues that the provision allowing anyone who suffered a “competitive injury” to sue 

violates the Ex Post Facto Clause because it creates 

additional liability for past acts by companies like Brooks 

Brothers. He also argues that all of the amendments 

violate the Takings Clause of the Fifth Amendment 

because they result in him losing the filing fee he paid to 

the district court in order to bring his case. In addition, 

he urges that the amendments violate the Seventh 

Amendment’s right to a trial by jury because he no longer 

has the opportunity to argue the merits of his case at 

trial.

Additionally, Mr. Stauffer argues that he has suffered 

a “competitive injury” as that term is used in the amendments because the false marking by Brooks Brothers 

chilled competition and increased the price he paid for his 

bow ties. He also argues that Brooks Brothers should be 

estopped from denying liability, and that the case should 

be reassigned to a different judge on remand. 

Brooks Brothers and the government argue that Mr. 

Stauffer waived all of these arguments by not properly 

raising them before the district court. We agree.
14 STAUFFER v. BROOKS BROTHERS GROUP, INC. 

The record shows that Mr. Stauffer did not raise these 

arguments in his initial response to the district court’s 

show-cause order, but instead waited until his reply brief 

before the district court to first raise them. Compare

Joint Appendix 809, with 887. Issues not properly raised 

before the district court are waived on appeal. Fresenius 

USA, Inc. v. Baxter Int’l, Inc., 582 F.3d 1288, 1295–96 

(Fed. Cir. 2009) (finding arguments waived that were not 

properly raised before the district court); see also DSND 

Subsea AS v. Oceanografia, S.A. de CV, 569 F. Supp. 2d 

339, 347 (S.D.N.Y. 2008) (noting that new arguments may 

not be raised for the first time in a reply brief). 

CONCLUSION

For the foregoing reasons, we affirm the dismissal of

Mr. Stauffer’s suit for lack of standing due to the elimination of the qui tam provision in the false-marking statute. 

AFFIRMED