Anderson v. United States Atomic Energy Commission (313 F.2d 313, 1963)

CASTLE, Circuit Judge.

This matter is before the Court on the petition of Herbert L. Anderson for review of an order dismissing, without consideration of its merits, the application of petitioner for an award under Section 157(b) (3) of the Atomic Energy Act of 1954 (42 U.S.C.A. § 2187(b) (3)). The application was held barred by 28 U.S.C.A. § 2401(a) because it had not been brought within six years of its accrual.

On January 23,1958, petitioner filed an application with the United States Atomic Energy Commission, respondent, for an award under the Atomic Energy Act based upon certain unpatented discoveries and inventions in the field of atomic energy. The application set forth, among other things, that activities of the petitioner, in concert with other scientists, during 1939, 1940 and 1941, in the development of atomic energy, which were disclosed in substantial compliance with the Act, led directly to the proper design of a suitable lattice of uranium in graphite and the successful construction of the first chain reacting pile. The government filed a response in which it asserted that the application was barred by limitations.

It is not disputed that whatever rights the petitioner may have under the Act first accrued August 1, 1946, the effective date of the Atomic Energy Act of 1946, which first made provision for the making of awards such as the one sought by the petitioner. The 1946 Act has been superseded by the Atomic Energy Act of 1954. The parties agreed that the limitations question be separately and first considered before the merits of the application would be reached. The Commission, in denying review, adopted the conclusion of its Patent Compensation Board that the application having been filed in 1958, more than 6 years after August 1, 1946, it is barred by the statutory limitation governing civil actions against the United States and its dismissal is required.

The sole contested issue presented for ■our determination is whether an application for an award under the Atomic Energy Act based on an unpatented invention or discovery is subject to the six .year limitation period prescribed by 28 U.S.C.A. § 2401(a).

The Atomic Energy Act, in relevant parts, (42 U.S.C.A. § 2187(b) (3) and