Perry v. United States

Decision Date17 June 2020
Docket NumberNo. 19-1797C,19-1797C
PartiesMOSHE AVRAM PERRY, Plaintiff, v. THE UNITED STATES, Defendant.
CourtU.S. Claims Court

RCFC 12(b)(1); RCFC 12(b)(6); Tucker Act claims; illegal exaction claims; money-mandating claims; takings claims; implied-in-law contract claims; patent claims, 28 U.S.C. § 1498(a); 35 U.S.C. § 122(a); RCFC 41(b); frivolous complaint and filings, 28 U.S.C. § 1915(e)(2)(B)(i).

Moshe A. Perry, West Hills, CA, pro se.

Igor Hellman, United States Department of Justice, Civil Division, Washington, DC, for defendant. With him on the briefs were Joseph H. Hunt, Assistant Attorney General, Civil Division, Robert E. Kirschman, Jr., Director, and L. Misha Preheim, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC.



On November 20, 2019, Plaintiff, Mr. Moshe Avram Perry, filed a Complaint ("Compl.") in this Court, initiating the above-captioned action against Defendant, the United States. Although Mr. Perry's voluminous 95-page Complaint is often quite difficult to follow, its thrust is that he is entitled to relief from this Court for actions taken by the United States Patent and Trademark Office ("USPTO") stemming from its examinations and subsequent denials of three patent applications that Mr. Perry allegedly submitted to the USPTO.1

For the reasons explained below, the Court grants the government's motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the United States Court of Federal Claims ("RCFC"). To the extent any of Mr. Perry's claims fall within this Court's jurisdiction, he fails to allege sufficient facts — as opposed to conclusory legal assertions — which state a claim upon which relief can be granted.

I. Mr. Perry's Complaint

In summary, Mr. Perry alleges that: (1) the USPTO "unlawfully denied [him an] impartial examination of the Expired Applications in accordance with the Patent Act and USPTO rules and procedures" (Compl. ¶ 302); (2) the USPTO "violated [his] constitutional rights to due process and to just compensation for a taking of his property" — referencing his various patent applications (Compl. ¶ 303); (3) "the USPTO's actions in abandoning Mr. Perry's Applications were undertaken in bad faith" (Compl. ¶ 305); (4) he is "entitled to specific relief: issuing a patent in Application No.[]14/794,807; and fair examinations of applications 15/382,598, and No. []15/709,307" (Compl. ¶ 306); (5) in "preventing any of Mr. Perry's patent applications from issues [sic] as patents, the USPTO took Mr. Perry's property rights by publishing a non-publish application No. []15/382,598" and that he "is therefore entitled to just compensation for the USPTO's taking of his property" (Compl. ¶¶ 311-312); (6) the USPTO's "actions violate [Mr. Perry's] rights under the Patent Act, PTO regulations, the Administrative Procedure Act, and the Due Process Clause of the Fifth Amendment to the United States Constitution" (Compl. ¶ 318) for which he is "entitled to orders setting aside these agency actions" (Compl. ¶¶ 320, 332); and (7) he is entitled "to a writ of mandamus compelling Defendants . . . to conduct a fair, impartial, and timely examination of his applications" (Compl. ¶¶ 335-339).

Mr. Perry further asserts a claim based upon various fees the USPTO allegedly collected from him "for examination-related activities." Compl. ¶ 326. In that regard, he alleges that: (1) "[t]he USPTO, acting in bad faith and in violation of Mr. Perry's constitutional and statutory rights under the Patent Act and APA, required Mr. Perry to pay numerous fees" (Compl. ¶ 325); and (2) "[t]he USPTO's assessment, acceptance, and retention of [patent application] fees was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and also contrary to constitutional right, power, privilege, or immunity, and was inequitable" (Compl. ¶ 327).2 Mr. Perry further maintains that he "is therefore entitled to specific relief" and requests that thisCourt instruct the USPTO to "apply the fees to the patent applications and apply the overage of the fees to the fees the USPTO claimed are owed." Compl. ¶ 328.

Based on the foregoing allegations and claims, Mr. Perry seeks a variety of (mostly duplicative) relief, including: (1) "specific relief, in the form of granting the three patents"; (2) an "award of just compensation for [the] taking of Mr. Perry's property"; (3) a "finding that USPTO improperly and inequitably accepted and retained Mr. Perry's fees for applications other than the abandoned applications"; (4) an "order setting aside the USPTO's actions adopting unlawful policies for the treatment of Mr. Perry's applications"; (5) a "writ of mandamus compelling [the USPTO] expeditiously to conduct a fair, impartial, and timely examination of his three applications"; and (6) a "finding that the USPTO improperly accepted and [retained] Mr. Perry's fees for the abandoned [a]pplications." Complaint ¶ 354.

In addition to claiming money damages under the Tucker Act and pursuant to the Takings Clause of the Fifth Amendment of the U.S. Constitution — types of claims over which this Court does possess jurisdiction, at least generally — Mr. Perry also seeks relief quite clearly outside of this Court's power to grant, including: (1) compensation pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b); (2) declaratory and injunctive relief pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, and the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq.; and (3) remedies pursuant to other civil and criminal statutes. Compl. ¶¶ 1, 60, 114, 304, 353.

On February 3, 2020, the government filed a motion to dismiss all of the non-takings claims alleged in Mr. Perry's Complaint pursuant to RCFC 12(b)(1) for lack of subject-matter jurisdiction, and the takings claim pursuant to RCFC 12(b)(6) for failure to state a claim. ECF No. 11 ("Def. Mot."). On March 9, 2020, Mr. Perry filed his response to the government's motion to dismiss ("Pl. Resp.").3 On March 26, 2020, the government filed its reply brief. ECF No. 19 ("Def. Rep.").

For the reasons explained below, the government's motion hereby is GRANTED, and Mr. Perry's Complaint is DISMISSED.

II. The Jurisdiction Of The U.S. Court Of Federal Claims

This Court has a duty to ensure that it has jurisdiction over any claim presented. See, e.g., St. Bernard Parish Gov't v. United States, 916 F.3d 987, 992-93 (Fed. Cir. 2019); see RCFC 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."). As a threshold matter, the United States cannot be sued absent its consent in the form of a waiver of sovereign immunity. See FDIC v. Meyer, 510 U.S. 471, 475 (1994) ("Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit."). Accordingly, "except as Congress has consented to a cause of action against the United States, 'there is no jurisdiction in the Court of [Federal] Claims more than in any other court to entertain suits against the United States.'" United States v. Testan, 424 U.S. 392, 400 (1976) (quoting United States v. Herwood, 312 U.S. 584, 587-588 (1941)). Generally, "the jurisdiction of the Court of Federal Claims is defined by the Tucker Act, which gives the court authority to render judgment on certain monetary claims against the United States." RadioShack Corp. v. United States, 566 F.3d 1358, 1360 (Fed. Cir. 2009). In pertinent part, the Tucker Act provides:

The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.

28 U.S.C. § 1491(a)(1).

Thus, the Tucker Act vests this Court with jurisdiction and waives the sovereign immunity of the United States "[f]or actions pursuant to contracts with the United States, actions to recover illegal exactions of money by the United States, and actions brought pursuant to money-mandating statutes, regulations, executive orders, or constitutional provisions[.]" Roth v. United States, 378 F.3d 1371, 1384 (Fed. Cir. 2004) (defining three types of Tucker Act Claims). The Tucker Act, however, "does not create a substantive cause of action[.]" Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc). Moreover, "[n]ot every claim invoking the Constitution, a federal statute, or a regulation is cognizable under the Tucker Act." United States v. Mitchell, 463 U.S. 206, 216 (1983). With respect to "money-mandating" claims, in particular, a statute — or other provision of law — creates a right capable of grounding a claim within the waiver of sovereign immunity if, but only if, it "can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained." Id. at 217 (quoting Testan, 424 U.S. at 400) (internal quotation marks omitted); see also Maine Cmty. Health Options v. United States, 140 S. Ct. 1308, 1327 (2020); United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003).

Courts treat a pro se plaintiff's pleadings with less scrutiny and give them a more liberal construction than pleadings prepared by counsel. See Castro v. United States, 540 U.S. 375, 381 (2003). "[E]ven pro se plaintiffs," however, "must persuade the court that [its] jurisdictional requirements have been met[.]" Hale v. United States, 143 Fed. Cl. 180, 184 (2019) (citing Bernard v. United States, 59 Fed. Cl. 497, 499 (2004), aff'd, 98 F. App'x 860 (Fed. Cir. 2004)). Mr. Perry has not persuaded this Court that it possesses jurisdiction to entertain his claims. In the alternative, Mr. Perry has failed to state a claim as a matter of law upon which relief can be...

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