# United States **Court of Appeals**  **for the Federal Circuit**

______________________ RAYMOND E. STAUFFER, Plaintiff

- Appellant,

v.

BROOKS BROTHERS GROU P, 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

______________________

R AYMOND E. S TAUFFER , of Chatham, New Jersey, a rgued pro se.

S TEPHEN L. B AKER , Baker & Rannells, PA, of Rarita n, New Jersey, argued for defendant

- appellee. With him onSTAUFFER v. BROOKS BROTHERS GROU P , INC

. 2

the brief were N EIL B. F RIEDMAN and R YAN A. M C G ONIGLE

.

A DAM C. J ED , Attorney, Appellate Staff, Civil Division, United States Department of Justice, of Washington, DC, argued for intervenor

- appel lee. With him on the brief were S TUART F. D ELERY , Assistant Attorney General, P REET B HARARA , United States Attorney, and S COTT R. M C I NTOSH , Attorney.

______________________
Before L OURIE , S CHALL , and M OORE , Circuit Judges.

S CHALL , Circuit Judge.
Pro se p laintiff

- 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 viola ted the statute by marking its bow ties with expired patent numbers.
In 2011, while Mr. Stauffer’s action was pending, the Presiden t 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 (9t h ed. 2009).

2 Brooks Brothers , Inc. was merged into defendant

appellee 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

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made three significant changes to the false

- marking statute that affected Mr. Stauffer’s claim: (1) it eliminated the statute’s qui tam provision, cha nging the law so that only a “person who ha s 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 false

marking violation, id. § 16(b)(3); and (3) it expressly
stat ed that these amendments appl y 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 acknowledge d that he no longer had standing to pursue his lawsuit . T he district c ourt 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 amen dments were unconstitutional because they amounted to a pardon by Congress, thus violating the doctrine of separ ation of powers. He also argued that, by making the elim ination of the qui tam provision applicable to pending suits, the statute violated the common

- law principle that prohibits use of a pardon to v itiate a q ui tam action once the action ha s commenced. The government , as an inte rveno r, 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 prov ision

, Stauffer v. Brooks Bros., Inc. , No. 08

- Civ

- 10369, 2012 WL 6621374 (S.D.N.Y. Dec. 19, 2012) (“ Final Dec ision ”)

, and on January 16, 2013, the court denied reco nsideration

, Stauffer v. Brooks Bros., Inc. , No. 08

- Civ

10369 (S.D.N.Y. Jan. 16, 2013). Mr. Stauffer now appeals the dismissal of his suit. For the reasons set forth below, we affirm.STAUFFER v. BROOKS BROTHERS GROU P , INC

. 4

B ACKGROUND

I.

The false

- marking statute , 35 U.S.C. § 292, makes u nlawful 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 mar king its bow ties with patent numbers that had expired more than a half century ago. H owever, b efore reaching the merits of the suit and before enactment of the AIA

, t he district court dismissed it for lack of standing, f inding that Mr. Stauffer failed to satisfy t he constitutional requirement of an “injury in fact .” Stauffer v. Brooks B ros. , Inc. , 615 F. Supp. 2d 248 (S.D.N.Y. 2009). Subs equently, the government sought to intervene, contending that the court’s dismissal drew into question the constit utionality of the statute. Stauffer v. Brooks Bros., Inc. , No. 08

- Civ

- 10369, 2009 WL 16 75397, at *1 (S.D.N.Y. June 15, 2009). The district court denied the government’s r equest. 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 show ing standing. Id. at 1328. Second,

w e held that the government had the right to intervene to protect its interest

. Id. at 1329. Accordingly, we reman ded 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 s ig nificant 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 viol ation of the statute ; and it provided that the amendments apply to all pending case s

. AIA § 16(b)

. A fter 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 amen dments 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 amen dments usurped the President’s pardon power

. A ccording to Mr. Stauffer

, Brooks Brothers committed a criminal act by falsely marking its bow ties with expired patent nu mbers . By eliminating Brooks Brothers’ criminal liability, Mr. Stauffer claimed , Congress effectuated a pardon

— a right exclusively gra nted 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. Stau ffer ’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’sSTAUFFER v. BROOKS BROTHERS GROU P , INC

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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 o n the President’s power. Moreover , rather than usurp the President’s power, the

c ourt 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.
Regard ing 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 show

cause order

. Id. at *4 n.3

. The court, howeve r, did a ddress Mr. Stauffer ’s claim that he had standing because he had suffered a “competitive injury .” Relying on our decision in Brooks v. Dunlop M anufacturing , Inc. , 702 F.3d 624 (Fed. Cir. 2012) , the court found that Mr. Stau ffer 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).

D ISC USSION

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) (cit ations omitted)

. “T he constitutionality of an act of Co ngress is a questio n of law that is likewise reviewed de

novo .” Brooks , 702 F.3d at 628 (citing Thomson Multim edia 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

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II.

A.

Mr. Stau ffer first contends that the retroactive appl ication of the AIA amendments amount s 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 punish able. 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 prohi bits 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 a cquired a private

- property interest in his share of the penalty.

Brooks Brother s responds that the false

- mar king 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 w as criminal in nature , Congress did not grant a pardon to anyone. Rather, it changed t he law to redefine what constitutes false marking.STAUFFER v. BROOKS BROTHERS GROU P , INC

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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 hel d 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 commo n- 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, i f we strike down the AIA amend ment that eliminated liability for marking products with e xpired patent numbe rs, 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 arg ument, 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 Congr ess is free to change the laws and eliminate statutorily created causes of action. T he government further argues that a change in the substantive law is not a pardon. As the government sees it, b y changing the definition of false marking, Congress did no t exempt people from the pu nishment the law inflicts but instead changed the law itself. Finally, the government urges , fals e- 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 r esponds that Mr. Stauffer mi stakenly re lies on the obse rvation 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, r egarding the government’s contention that he has no standing to make his pardon

- po wer argument on appeal, Mr. Stauffer argues that he has collectiv ely 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 inj ury.
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 ques tion. 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.

T he Supreme Court has explained that , in order for there to be standing in a case, at a minimum, three r equirements must be met: First, the plaintiff must have suffered an “injury in fact”

— an invasion of a legally protected inte rest which is (a) concrete and particularized, and (b) “ actual or imminent, not ‘ conjectural ’ or ‘ hyp othetical. ’ ” Second, there must be a causal conne ction between the injury and the conductSTAUFFER v. BROOKS BROTHERS GROU P , INC

. 10

complained of

— the injury has to be “fairly . . . trace[able] to the challenged action of the defen dant , 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 dec ision.” 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 m ight 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 t he third element of constitutional standing

— redressability . Accor ding to the government, if we strike down as unconstit utional the AIA amendment that eliminate d liability for marking products with expired patent nu mbers, Mr. Stauffer could not continue hi s sui t because the AIA eliminated the false

- marking statute’s qui tam prov ision, so that now only a person who has suffered a co mpetitive injury may bring a claim under the statute

. Therefore, the government concludes, a favorable decision could not “redr ess” 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 amend ed the false

marking 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 speculativeSTAUFFER v. BROOKS BROTHERS GROUP , INC

. 11

that a favorable decision would re dress his alleged injury. We consider each issue in turn.

III.

A.
Striking down an Act of Congress a s unconstitutional

“ is the gravest and most delicate duty ” which a court may be called u pon to perform. Blodgett v. Holden , 275 U.S. 142, 147

– 48 (1927) ( opinion of Holmes, J.)

. We have

p reviously addressed and rejected challenges to the constitutionali ty of the false

- marking statute amen dments 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 Pr ocess Clause or the Intellectual Property Clause of the Constitution

. And, i n Rogers v. Tristar Prod ucts , 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 amen dments 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 amen dment to the false

- marking statute that eliminated liability for expired pat ents do es 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. a rt. II, § 2. The grant of a pardon is an “ executive action that m itigates 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 grant ing a pardon, the amen dments to the false

- marking statute are better characte rized as repeal ing a law , an action undoubtedly within Congress’s power. Indeed, at common law, it has longSTAUFFER v. BROOKS BROTHERS GROU P , INC

. 12

been held that Congress has the power to “repeal[] a penal provision (whether criminal or civil)” and that “such repeals [are] understood to preclude punish ment for acts antedating the repeal.” Landgraf v. U SI 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 prosec utions unless competent authority has kept the statute alive for that purpose.”). 3 Significantly, t his is not a case where Congress attempted to set aside an already adjud icated punishment for a specific individu al 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, w e conclude that the AIA amendments do not viol ate the common

- law principle on which Mr. Stau ffer relies because ( 1) he has no vested rights in his la wsuit, 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, ove rrides the common law rule and keep s repealed statutes alive for pending prosecutions except where the repealing act expressly provides otherwise. Here, t he AIA amen dments expressly provide that they apply to pending cases

. AIA § 16(b)(4).STAUFFER v. BROOKS BROTHERS GROUP , INC

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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 ha ve 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 a rguments on appeal that were not properly raised before the district court. Regarding the constitutionality of the false

- marking statute, he argues that the provision allo wing anyone who suffered a “competitive injury” to sue violate s 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 vi olate 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 amen dments because the false marking by Brooks Brothers chilled comp etition 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 Brot hers and the government argue that Mr. Stauffer waived all of these arguments by not properly raising them before the district court. We agree.STAUFFER v. BROOKS BROTHERS GROU P , INC

. 14

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 rais ed 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 b e raised for the first time in a reply brief)

. C ONCLUSION For the foregoing reasons, we affirm the dismissal of Mr. Stauffer ’s suit for lack of standing due to the elimin ation of the qui tam provision in the false

- marking statute

. AFFIRMED