Po Kee Wong v. U.S. Solicitor Gen.

• Decision Date: 15 March 2012
• Docket Number: Civil Action No. 11–1372 (EGS).
• Citation: 839 F.Supp.2d 130
• Parties: PO KEE WONG, Plaintiff, v. UNITED STATES SOLICITOR GENERAL, Defendant.
• Court: U.S. District Court — District of Columbia

839 F.Supp.2d 130

PO KEE WONG, Plaintiff,

v.UNITED STATES SOLICITOR GENERAL, Defendant.

Civil Action No. 11–1372 (EGS).

United States District Court,

District of Columbia.

March 15, 2012.

Po Kee Wong, Silver Spring, MD, pro se.

Claire M. Whitaker, United States Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

This case is before the Court on defendant United States Solicitor General's motion to dismiss. Plaintiff, proceeding pro se, filed his Complaint on July 28, 2011 requesting that the Court grant a number of unclear “orders” related to a wide variety of subject matter, including state retirement benefits, rejected patent applications, patent infringement, and tax refunds. Defendant filed a motion to dismiss on December 12, 2011, arguing, among other things, that the Complaint should be dismissed under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), and that certain claims were barred by the doctrine of res judicata. Plaintiff's response to the motion to dismiss, filed December 28, 2011, attached numerous emails sent by plaintiff to the President of the United States, members of Congress, and hundreds of other people, but shed no further light on plaintiff's claims nor did it address most of the government's arguments. Upon consideration of the motion, the response and reply thereto, the entire record ¹, the applicable law, and for the reasons set forth below, the defendant's motion to dismiss the action is GRANTED.

I. BACKGROUND

Plaintiff is no stranger to the courts, having filed numerous claims in various state and federal courts. See Wong v. Boston Ret. Bd., 861 N.E.2d 420, 421, 448 Mass. 1012, 1012–1013 (Mass.2007); Wong v. United States, 342 Fed.Appx. 623, 624–25 (Fed.Cir.2009); In re Wong, 80 Fed.Appx. 107, 108 (Fed.Cir.2003); In re Wong, 188 Fed.Appx. 981 (Fed.Cir.2006).² Plaintiff has apparently not been successful in these attempts, and now appears to have collected a list of the relief sought in his failed lawsuits, in addition to other requests, into an omnibus claim for “orders” from this Court. Construing the Complaint liberally, the Court understands plaintiff's claims to fall into three general categories.

1. Plaintiff's Retirement Benefits Claim

Plaintiff asks that the Court “issue an ORDER to the Retirement Board of the City of Boston, State Massachusetts to allow Po Kee Wong to buy back nine years and five months for my full retirement of my educational services allowable by the Boton [sic] Retirement Law.” (Compl. ¶ 1). Plaintiff has already fully litigated this claim. See Wong v. Boston Ret. Bd., 861 N.E.2d 420, 421, 448 Mass. 1012, 1012–1013 (Mass.2007). In that decision, plaintiff unsuccessfully challenged the Boston Retirement Board's denial of certain retirement credits through a series of administrative law appeals and through the Massachusetts state court system. Id. Plaintiff failed to file a timely appeal in state court, then moved for permission to docket his appeal late, which was denied. Id. He then appealed to a single justice of the Massachusetts Supreme Judicial Court, who affirmed the denial. Id. Unsatisfied with that decision, Plaintiff appealed to a panel of justices on the Massachusetts Supreme Judicial Court, which affirmed the denial once again. Id. Plaintiff then filed a petition with the United States Supreme Court for writ of certiorari, which was denied, followed by a petition for rehearing, which was also denied. Wong v. Boston Ret. Bd., 552 U.S. 975, 128 S.Ct. 440, 169 L.Ed.2d 307 (2007) (denying petition for writ of certiorari to the Supreme Judicial Court of Massachusetts); Wong v. Boston Ret. Bd., 552 U.S. 1084, 128 S.Ct. 826, 169 L.Ed.2d 622 (2007) (denying petition for rehearing). In his Complaint, plaintiff also seeks to have this Court review the Supreme Court's denial of certiorari in the Retirement Board matter. (Compl. ¶ 7).

2. Plaintiff's Patent Claims

Plaintiff makes reference to several patent and patent application serial numbers, and appears to allege that the patents have been infringed upon or that certain patent applications were wrongly denied. He asks the Court:

To issue an ORDER to the Solicitor General and to the USPTO to complete the issuance of the U.S. Patent Application Serial Number 08/980,657; (Compl. ¶ 2)

To issue an ORDER to the United States Government for a claim of NASA Case Number I–218 for actions for patent and copyright infringement of U.S. Patent Number 5,084,232 and 5,848,377; (Compl. ¶ 3)

To issue an ORDER to the United States Government to enforce the U.S. Patent Law by issuing ORDERS to whoever has been the infringers must pay their royalties and/or license fee to the patent owner Dr. Po Kee Wong or Systems Research Company. (This claim appears related to U.S. Patents 5,084,232; 5,848,377 and 6,430,516 and U.S. Patent application Serial numbers 08/980,657 and 07/147,217). (Compl. ¶ 8)

Plaintiff provides no further information regarding any of these patents and patent applications, nor does he explain the basis of any alleged infringement, why he believes any applications should have been granted, or why the defendant Solicitor General is liable for any harm caused.

a. The '232, '377 and '516 Patents

With respect to United States Patent Numbers 5,084,232 (the '232 Patent), 5,848,377 (the '377 Patent), and 6,430,516 (the '516 Patent), plaintiff has already had his day in court. See Wong v. United States, 342 Fed.Appx. 623, 624–25 (Fed.Cir.2009). In that case, plaintiff brought claims against the United States for infringement of the '232, '377 and '516 patents. Id. Despite allowing plaintiff the opportunity to state his claim more fully, the Court of Federal Claims eventually dismissed the infringement claims for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The United States Court of Appeals for the Federal Circuit affirmed, finding that plaintiff had “failed to produce any facts upon which he could sustain his allegation that the government had infringed on his patents.” Id. Plaintiff petitioned the Supreme Court for a writ of certiorari, and was denied, followed by a petition for rehearing, which was also denied. See Wong v. U.S., –––U.S. ––––, 131 S.Ct. 126, 178 L.Ed.2d 76 (2010) (denying petition for writ of certiorari); Wong v. U.S., ––– U.S. ––––, 131 S.Ct. 1041, 178 L.Ed.2d 860 (2011) (denying motion for leave to file a petition for rehearing).

It appears that Plaintiff also seeks to have this Court review the Supreme Court's denial of certiorari on his patent infringement claim. Plaintiff begins his Complaint by stating that “The Honorable Judge Reggie B. Walton is invited to review the Supreme Court case 09–10968....” (Compl. at first unnumbered paragraph). The Supreme Court docket number cited is plaintiff's appeal of the Federal Circuit's decision that plaintiff's patents had not been infringed. See Wong v. U.S., ––– U.S. ––––, 131 S.Ct. 126, 178 L.Ed.2d 76 (2010).

b. The '657 Patent Application

Plaintiff seeks an order compelling the “issuance” of United States Patent Application number 08/980,657 (the '657 application). This is at least the fourth time plaintiff has asked a federal court to review the denial of the '657 application. Plaintiff initially appealed a 2002 decision of the United States Patent and Trademark Office, Board of Patent Appeals and Interferences (the “Patent Board”), which rejected his patent application on the merits of the patent. In re Wong, 80 Fed.Appx. 107, 108 (Fed.Cir.2003). The Federal Circuit, upholding the Patent Board's decision, found that plaintiff failed to demonstrate that the Patent Board committed reversible error in rejecting plaintiff's patent application. Id. at 109. Plaintiff's motion for rehearing and rehearing en banc were denied. See id. The Patent and Trademark Office subsequently deemed the patent abandoned, as plaintiff had failed to continue prosecuting the patent, and sent plaintiff a notice of abandonment. In re Wong, 188 Fed.Appx. 981 (Fed.Cir.2006).

In 2005, plaintiff filed a petition to revive the abandoned application, which the Commissioner of Patents (“Commissioner”) denied on July 19, 2005. Id. Plaintiff then filed a notice of appeal, seeking review by the Federal Circuit of the Commissioner's denial, and the Director of the Patent and Trademark office moved to dismiss. Id. The Federal Circuit granted the motion, finding that it did not have jurisdiction over the Commissioner's denial of the petition to revive the abandoned application. Id. (stating that, under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq., jurisdiction over the Commissioner's denial lay in the district courts). The plaintiff then appealed that decision to the Supreme Court. In re Wong, 552 U.S. 807, 128 S.Ct. 196, 169 L.Ed.2d 250 (2007) (denying petition for writ of mandamus); In re Wong, 552 U.S. 1056, 128 S.Ct. 695, 169 L.Ed.2d 542 (2007) (denying petition for rehearing).

Apparently unhappy with the decision of the Federal Circuit, but unwilling to file his claim in a federal district court as required by the Administrative Procedure Act, plaintiff sought review of his claim regarding the '657 application when he brought his other claims for alleged patent infringement in the Court of Federal Claims. See Wong v. United States, 342 Fed.Appx. 623 (Fed.Cir.2009). The court rejected his claim relating to the '657 application for lack of jurisdiction. Id. at 625. Plaintiff appealed that decision to the Supreme Court. Wong v. United States, ––– U.S. ––––, 131 S.Ct. 126, 178 L.Ed.2d 76 (2010) (denying petition for writ of certiorari); Wong v. United States, ––– U.S. ––––, 131 S.Ct. 1041, 178 L.Ed.2d 860 (2011).

Two years later, plaintiff has filed a Complaint in this Court, and seeks to compel the “issuance” of the '657 patent application. (Compl. ¶ 2). Plaintiff also asks the court to issue an order “for unfair ruling by the Supreme Court” regarding his denial of...