Clark v. United States

ORIOINAI

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No. 11-10C

(Filed JuIy 28,2014)

NOT FOR PUBLICATION

FILED

*,i.,i. *,i.* +* * * **,t * * * * * * * * * +

, JU1 282014

JAMES HEDMAN CLARK, U.S. COURT OF

FEDERAL CLAIMS

Plaintifl

THE UNITED STATES,

Defendant.

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MEMORANDUM OPINION AND ORDER

Pending before the Court is defendant's motion to dismiss plaintiffs amended

complaint. For the reasons discussed below, the motion is GRANTED'

I. BACKGROUND

Plaintift James Hedman Clark, filed this lawsuit pro se on January 5,2011'

See Compl. In response to plaintiffs original complaint, the government filed a

motion to dismiss and plaintiff subsequently requested leave to file an amended

complaint --- which was granted by the court. Mister clark then filed his amended

complaint, a document consisting of approximat ely 628 handwritten pages and

2,255 numbered paragraphs.l The government responded with a motion to dismiss

plaintiffs amended complaint in its entirety ("Def.'s Mot'")'

I The Clerk's Office received on the same day nine documents submitted by

plaintiff, titled as follows: (1) Plaintiffs First Amended Complaint; (2) Amended

Table of Exhibits Incorporated by Reference in Plaintiffs Amended complaint; (3)

Attachment Filed under SeaI Incorporating Statements by Reference in Plaintiffs

First Amended Complaint; (4) Motion for Leave to Stay Judgment Regarding

Plaintiff s Patent Infringement Cause of Action; (5) Memorandum to Court; (6)

Verifred Derivative Action; (?) Plaintiffs Rule 23 Motion for a Defendant Class

Action certifrcation order; (8) Motion seeking Leave of court for Plaintiff to File

Supportive Memorandum for Class Certification in Excess of 20 Pages; and (9)

The first 228 pages of plaintiffs amended complaint contain lengthy

descriptions of the asserted jurisdictional bases for plaintiffs claims, facts spanning

several decades, and various exhibits submitted by plaintiff. See Am. Compl. at 1-

228D. Among other things, this portion of the amended complaint covers topics

such as plaintiffs education, medical, and employment history, the surveillance of

plaintiff by various government agencies, and the development of the purported

invention which underlies the bulk ofplaintiffs allegations. See id. Plaintiffs

invention, which is entitled the Out of Area (OOA) program, is a student behavror

modification program designed for use in schools. See id.. ill 189-96. In the

remainder of his amended complaint, plaintiff alleges twenty-eight causes of action,

many of which contain multiple counts. See id. at 231-628.

Plaintiff s invention, the OOA program, is based on the premise that

"[d]isruptive and disrespectful student behaviors almost always occur when

students are not in their assigned/proper area" --- that is, when they are "out of

area." Am. Compl U 192. The OOA program includes at least four documents

created by plaintiff--- a student quiz, a referral form, a parental information notice

Ietter, and a hall pass. Id. n 238. On April 22,2005, Mr. Clark obtained a federal

copyright registration for the OOA program. See id. l1l 315, 421, 1070; PI.'s Claim

of Copyright(s) and Assignment Ownership, Ex. V, ECF No. 8. A copy of the

document registered by plaintiff was filed with the court. See Filings Made Under

Seal, ECF No. 6. While Mr. Clark's amended complaint contains numerous

allegations, the thrust of his complaint relates to his allegation that the St. Lours

Public School District (SLPS) "became aware" of plaintiffs OOA program and

"developed a 'plan of action' to [T]ake Plaintiffs OOA program trade secrets in

January 2O04,"2 see Am. Compl. 1ln 26I-62, and that the federal government

subsequently infringed his copyright of the OOA program, see Am. Compl. !f fl 846,

849, 887, 934. More specifrcally, plaintiff contends that the United States

Department of Education's Response to Intervention (RTI) program infringes his

copyright. See, e.g., Am. Compl. flll 846, 849,934, 1168. According to plaintiff, RTI

is "an inclusive partnership between aII school personnel and families to identify

and address the behavioral academic needs ofboth regular and special education

students," Am. Compl. tf 856, which was based upon plaintiffs copyrighted OOA

program, see, e.9., Am. Compl. flfl 847-48, 887.

Memorandum in Support of Plaintiffs Rule 23 Motion for a Defendant Class Action

Certification Order. All but the last four identified were fiIed with the court. See

Order (June 12, 2012) at2

2 Plaintiff uses somewhat unusual formatting, such as the bracketing of upper-case

Ietters outside ofthe context of altering a quotation. The Court will simply quote

the Amended Complaint as written, rather than correcting such formatting choices

or errors.

,)

On June 15, 2005, plaintiff applied for a patent for the OOA program by

submitting United States Patent Application No. 11/153,118 to the United States

Patent and Trademark Office (USPTO). See Am. Compl. fl 1896; Ex. 253, ECF No.

11; Def.'s Mot App. at 13. The USPTO never issued a patent based on this

application, and on October 25,2010, issued a Notice ofAbandonment to plaintiff

because he did not "timely file a proper reply" to a letter from the USPTO. See

Def.'s Mot. App. at 13-14,

Plaintiff previously fiIed a similar lawsuit in the United States District Court

for the Eastern District of Missouri. Clarh u. Crues, No. 4:O5CYI344, 2007 WL

9067 02 (E.D. Mo. March 23, 2007). In that case, Mr. Clark alleged that school and

school system employees, as well as the City of St. Louis, the Board of Education,

and the SLPS, infringed the same patent application and copyrighted work at issue

in this case. Id. In March of 2007, the district court granted summary judgment for

the defendants, dismissing Mr. Clark's complaint with prejudice. Id. Mister Clark

appealed to the Federal Circuit, and his appeal was denied on January 8, 2008.

Clarh u. Crues, No. 2007 -1377 ,2008 WL 145255 (Fed. Cir. Jan. 8, 2008). The

present case appears to be based in large part on the same underlying facts, with

many ofthe claims now styled as against the United States "acting through" the

state and local entities that were named as defendants in Mr. Clark's orior

litigation.

Plaintiffs amended compiaint contains twenty-eight "causes of action," each

of which contains between one and six counts. As explained in the government's

motion to dismiss, the twenty-eight causes of action and their sub-counts can oe

broadly grouped into nine categories: (1) illegal exaction claims, Causes ofAction 1

(Counts I-\) and 24; (2) sectecy order claims, Causes of Action 2 ard 22 (Counts I-

III); (3) tort claims, Causes ofAction 3 (Counts I-\T), 4 (Counts I-II), 9, 15 (Counts

I-III), 18, and 25-26; (4) copyright infringement claims, Causes of Action 5-8, 10-

14, and 20 (Counts I-III); (5) unauthorized use ofa patent claims, Cause of Action

19 (Counts I-IID; (6) 19 U.S.C. $ 1337 claims, Cause of Action 16; (7) Constitution

Article I claims, Cause of Action 17; (8) Fifth Amendment takings claims, Causes of

Action 21 (Counts I-II), and 23; and (9) implied-in-fact contract claims, Causes of

Action 27-28.3 The government has moved to dismiss plaintiff s entire amended

complaint under Rules 41(b), 12&X1), and 12(bX6) of the Rules of the United States

Court of Federal Claims (RCFC). The government argues that the entire complaint

should be dismissed under RCFC 41ft) because it fails to comply with the "short

and plain statement" requirements of RCFC 8(a). Def.'s Mot. at 9. In addition, the

3 The Court notes that Mr. Ciark disagrees with the government's categorization of

some of his claims. See, e.9., Pl.'s Resp. to Mot. to Dismiss at 55. Any relevant

points of disagreement will be discussed by the Court when addressing the cause of

action at issue. Categorization is essential, however, in dealing with claims ofsuch

volume.

?

government contends that plaintiffs illegal exaction claims, secrecy order claims,

tort claims, unauthorized use of patent claims, 19 U.S.C. S 1337 claims,

Constitution Article I claims, and implied contract claims should be dismissed for

Iack of jurisdiction pursuant to RCFC 12(bX1), and that plaintiffs remaining claims

for copyright infringement and takings under the Fifth Amendment should be

dismissed for failure to state a claim pursuant to RCFC 120)(6). Id. at 9-10.

Mister Clark has filed a response in opposition to the government's motion to

dismiss ("PI.'s Resp."), and the government frled a reply in support of its motion

("Def.'s Reply";.+

II. DISCUSSION

A. Legal Standards

While pro se plaintiffs' filings are to be liberally construed, see Erichson u.

Po,rd,us,551 U.S. 89, 94 (2007), this ienient standard "does not relieve a pro se

plaintiff from meeting jurisdictional requirements." See, e.g., Bernard u. United

States, 59 Fed.Cl. 497, 499, aff'd,98 F. App'x 860 (Fed. Cir. 2004) (Table) (emphasis

omitted). Under RCFC 12G)(1), claims brought before our court must be dismissed

when it is shown that we lack jurisdiction over their subject matter. When

considering a motion to dismiss for lack of subject-matter jurisdiction, a court will

normally accept as true all factual allegations made by the pleader and draw aII

reasonable inferences in the lieht most favorable to that Dartv. See Scheuer u.

a On Septembet 26,2O13, plaintiff also frled two motions for sanctions against

defendant pursuant to RCFC 11. Pl.'s 1st Mot., ECF No. 84; Pl's 2nd Mot., ECF No.

85. Defendant filed a timely reply on October 24, 2013. Plaintiff makes four

arguments for sanctions: that defendant intentionally misrepresented its address;

improperly executed certificates of service; caused procedural irregularities; and

caused unnecessary delay by not opposing plaintiffs two motions for leave to file.

lst Mot. 1l'|!T 6-9; 2nd Mot. fl![ 14-38. Defendant requests, inter alia,9152,880 in

frnes against defendant. 1st Mot. at 15-16; 2nd Mot. at 19-2O. After evaluatins the

evidence the Court frnds that defendant has not made any material

misrepresentations and that none of defendant's conduct demonstrates even a

modicum ofthe lack of candor that could trigger Rule 11 sanctions. First, defendant

never misrepresented its address; the Department of Justice uses a centralized

processing facility for united states Postal service mail and a different address for

private courier delivery. Plaintiffs confusion about these addresses is not due to

defendant's malfeasance. Second, defendant may delegate agents to accept servrce

of fiIings; they did so. Third, the court has no jurisdiction to consider issues that

were previously before the Federal circuit. Moreover, any procedural irregularities

within this case are issues to be addressed with the court, not defendant. Fourth,

defendant's decisions not to oppose plaintiffs motions, embodied in its notice ofno

opposition, ECF No. 73, complied with our rules.

^

Rhodes,416 U.S. 232,236 (1974); Hxton u. B&B Plastics, Inc.,29l F.Sd 1324, 1326

(Fed. Cir. 2002) (requiring that on a motion to dismiss for lack of subject-matter

jurisdiction the court views "the alleged facts in the complaint as true, and if the

facts reveal any reasonable basis upon which the non-movant may prevail,

dismissal is inappropriate").

Because the Tucker Act,28 U.S.C. $ 1491, does not create any substantive

rights, a plaintiff must identify a separate source of law that creates a right to

money damages for his claims to be within our jurisdiction. Jan's Helicopter Seru.,

Inc. u. FAA,525 F.3d 1299, 1306 (Fed. Cir. 2008) (quoting Fisher u. United States,

402 F.3d lL67,II72 (Fed. Cir. 2OO5) (en banc rn relevant part)). The test for

determining whether a statute or regulation can support jurisdiction in our court is

whether it can be fairly interpreted as mandating compensation. See, e.g.' United

States u. White Mountain Apache Tribe,537 U.S. 465, 472-73 (2003); United States

u, Mitchell,463 U.S. 206,216-17 (1983); Fisher,402 F.3d at ll73-74; Contreras u.

United States,64 Fed. CI. 583, 588-92 (2005).

In addition, to survive a motion to dismiss for failure to state a claim under

RCFC 12G)(6), "a complaint must contain sufficient factual matter, accepted as

true, to'state a claim to relief that is plausible on its face."' Ashcroft u' Iqbal,556

U.S. 662, 678 (2009) (quoting BeIl AtI. Corp. u. Twomblv,550 U.S' 544, 570 (2007))'

"A claim has facial plausibility when the plaintiffpleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged." Id. (citing Twombly,550 U.S. at 556). When determining

whether to grant a RuIe 12(b)(6) motion, the court "must accept as true aII the

factual allegations in the complaint" and make "all reasonable inferences in favor of

the non-movant." Sommers Oil Co. u. United States,241 F.3d 1375, 1378 (Fed' Cir'

2001) (citations omitted). However, "threadbare recitals ofa cause of action's

elements, supported by mere conclusory statements" are insuffrcient. see lqbal,556

U.S. at 678 (citing Twombly,550 U.S. at 555)'

RuIe 8(a) requires complaints fiIed in our court to contain "a short and plain

statement of the grounds for the court's jurisdiction," and "a short and plain

statement of the claim showing that the pleader is entitled to relief." RCFC 8(a)(1)-

(2). Under RuIe 41(b), "[i]f the plaintiff fails to prosecute or to comply with these

rules or a court order, the court may dismiss" the case. RCFC 41(b).

B. The Government's Motion to Dismiss this Case

Defendant has moved to dismiss the amended complaint in its entirety,

under RCFC 41(b), arguing that violations ofthe "short and plain statement"

requirements of RCFC 8(a) warrant dismissal. Def.'s Mot. at 10-12' While thrs

complaint of roughly 628 pages is anything but short, the Court does not frnd this a

suitable ground for dismissing the case under RCFC 41&). Such dismissals should

be reserved for occasions when a plaintiff fails to clarifu a complaint after being

ordered to do so, see Lewis u. rJnited States, Sl Fed. CI. 607, 611-13 (1994), and

usually entail the allowance of a further pleading. see ciralhsy u. c.l.A.,355 F.3d

661. 669-?1 (D.C. Cir. 20O4); Gharb u. United Srotes, No. 12-91lC, 2013 WL

4828589, at *5 (Fed. CI. Sept. 9, 2013). While the sheer length ofthe complaint

makes this diffrcult, the bases of Mr. clark's claims can be discerned, ultimately to

his detriment.

In many respects, Mr. Clark's complaint (as well as many of his other frlings)

is a very impressive document. Plaintiff obviously thought a gteat deal about his

claims, and spent much time and effort to research, organize, and handwrite a

pleading of daunting length. But, as we shall see, despite employing hundreds of

allege

i.g.. uid thousands of paragraphs, Mr. Clark was not able to suffrcientlygranted.

jurisdiction and upon which relief can be

;lalms that are both within our

Our court does not have jurisdiction over claims against defendants other

thantheUnitedStates.See2sU.S.C.SSlagl(a),1498(a);UnitedStatesu.

Sherwood,,312 U.S. 584, 588 (1941) (holding that

jurisdiction of our court.s

for ' ' relief against

f."d"""*"o, was Iimited to "money judgments in suits brought !78' Ct. Cl. 593, 598

ih" U.rit"d States,,); D.R. Smalley &, 5i"", Inc. u. (Jnited States,

(lset; Dt"n u. Albertelli Law,9d Fed. Cl. 624' 626 (2011)' To the extent-that,Mr' not

dtu.t;. ciaims do not allege a violation ofthe law by the united states, they do

fall within our jurisdiction.

In this regard it is worth noting that while RCFC 8(a) does not support

other two grounds

dismissal of the lawsuit under RCFC?1@), it does bear on the

Rules of Civil

for dismissal. The Supreme Court has held that the Federal

ProcedurecounterparttoRCFC8(a)mayrequiredismissalforfailuretostatea

and

.tuinr tpot which reliefcan be granted, when allegations are conclusory

i-pf"".itf". Seelqbal,Sfe U.5.at6?&-80; Twomblv'550U'S' and local Manvof

at555-5,7'

plaintlffs allegations are directed toward entities such as state

'g"".."*""t uierrcie. and private companies ,,acting through" the-[Jnited States.

than the

3in"" oo. irrriJdiction does not extendlo claims against parties other

government

United States, the Court concludes that allegations of federal

involvement which fail the standatds of Twombly and Iqbal must be dismissed

under RCFC 12&Xi).

illegal

Plaintiffs first and twenty-fourth causes of action are based on an

exaction theory. See Am. Compi' at 23L,234,248' 252' 254'

An illegal exaction

the claimant rn

o"c.r"" *h"n morrey is "improperly paid, exacted' or taken from

Norman u' unit.ed

contravention of the constitution, a statute, or a regulation."

Federal Circuit

itates,429 F.3d 1081, 1095 (Fed. Cir' 2005) (citations omitted)' The

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has held that our court has jurisdiction over illegal exactions that are based upon

"an asserted statutory power." Aerolineas Argentinas u. United States, 77 F.3d

1564, 1573 (Fed. Cir. 1996) (citations omitted).

The majority of Mr. Clark's illegal exaction counts must be dismissed because

they allege exactions by entities other than the United States, and do not actually

allege the illegal collecting of money under color of law, as is required to state a

claim for an illegal exaction. see Aerolineas Argentinas, TT F.3d at 1573. The frrst

four counts of plaintiffs first cause of action do not sufficiently allege that the

purported exactions were executed by the United States. For example, the first two

counts allege wrongdoing by various state and local government agencies and

employees, resulting in the illegal exaction of $?,000 and $125,000, respectively,

f.om plaintiff. See Am. Compl. at 229-47. The first count is based on the allegation

that a local board of education employee was wrongfully paid $7,000 for plaintiffs

invention, see id'. l1\l 973-77, and the second count alleges that the wrongful

termination of plaintiffs teaching license/certificate constitutes an illegal exaction

for which plaintiff should be compensated $125,000, see id. lll 1043-48. Mister

clark frames each ofthese allegations as having been carried out by the United

,,acting through" various state and local government agencies and employees,

States

jurisdictron'

but this characterization is insufficient to bring his claims within our

Merely asserting that actions allegedly taken by state and local government

ugurr.i"" and employees were actually taken by the United States does not make it

sJ. plaintiff has not identified sufficient support for his theory that the United

states government orchestrated the chain of events detailed in these allegations

that wo-"uld bring his claim into the realm of plausibility, as is required by lqbal.s

See lqbal,556 U.S. at 678.

similarly, the third and fourth counts of plaintiffs first cause of action do not

sufficiently allege action by the Uniteil states. The fourth count alleges wrongdoing

tv u ttut" ug"n[', ttt" Office of the Secretary of State of Missouri' see Am' Compl' at

ZbZ-Sg, over which our court has no jurisdiction' See Souders u' S'C'

htb' Seru'

united

Auth.,497 F.3d 1303, 1308 (Fed. clr. zooz). The thircl count alleges that the

States, acting through two private law firms and the USPTO' illegally

exacted

$o,ezs r.o- ituirrtiritycharging him various fees related to his patent application,

while allegedly knowing thaihis patent application for the OOA program would

be

denied. See AL. Compi. at 248-SL. To the extent that this count alleges jurisdiction'

wrongdoing by private law firms, it clearly falls outside ofthis court's

5 In fact, for most of plaintiffs allegations, no support is offered for the proposition

the

that the united states governm"rrt curr"ed the chain ofevents at issue. Instead,

co-plai.rt merely contains the broad assertion that "Defendant' acting through [a

state or local government agency or employee]," did such things as' "told

Plaintiff

his teaching certificate wouid expire," Am. Compl. ll 994, "threatened Plaintiff

bv

way of a coirmunicatio n," id,. ll g-g7, or caused his teaching license to expire, id.

nf 1044, ro47-48.

.1

To the extent, however, that plaintiff alleges wrongdoing by the united states itself,

through the actions ofthe usPTo --- a federal agency --- plaintiffs claim still must

be dismissed because the alleged "exaction" by the USPTO is based upon plaintiffs

voluntary payment ofprocessing fees for his patent application -" a far cry from

"monies that the government has required to be paid contrary to law'" See

Aerolineas Argentinas, TT F.3d at 1572-73. Because the government is permitted to

collect fees from those seeking to have their patent applications processed, and

there has been no allegation that the government exceeded its authority in

collecting plaintiffs fee, this is not an illegal exaction.

Although the fifth count ofplaintiffs frrst cause of action identifres alleged

wrongiloing by various federal agencies, it too fails because it does not allege that

the gfvernment illegally required the payment of money by plaintiff under color of

Iaw. see Am. compl. at 254-56. Mister Clark alleges that the united states

Copyright Office and the Library of Congress "[E]xacted Plaintiffs financial deposit

[for reglstration ofthe OOA program for copyright protection] '

only to fail in

upholdlng proper recognition, communications and protection upon which Plaintiff

puid -ott"y accordingly," Am. Compl. fl 10?5, and thus, plaintiffs deposit was

ittegally exacted. Id.-n rc76. But unless there has been some allegation that the

gov"ernment exceeded its authority in charging plaintiff this fee, such as by charging

plaintiff a higher amount than it is permitted to charge, the voluntary payment ofa

See Aerolineas

?ee for copyright registration cannot constitute an iIIegaI exaction.

Argentinls, ZZ f.Sd at Ib72-75. Moreover, copyright registration does not impose a

b..id"r, on the federal government to "protect" plaintiffs registered work; rather,

copyright registration is a tool to assist owners of registered works in enforc-ing

th"i. o]*" cof,yrights. See, e.g.,17 U.S.C. $ 1203. Lastly, plaintiffs twenty-fourth

cause of action, *tti"tt alleges wrongdoing by federal, state, and local

government

agencies, does not seek the return of money illegally exacted from

plaintiff. see Am-

c"ompl. at 611-15. Instead, this claim appears to be based on the government's

failure to pay royalties to plaintiff for its alleged use of his invention. see id. since

this clairrrdoes not seek the return of money illegally exacted under color of law' it

also fails to state a claim for an iIIegaI exaction'

A number of Mr. clark's causes of action sound in tort, and thus concern

of

conduct that can only come under our jurisdiction when it is the result of a breach

contract. See 28 U.d.C. $ 1a91(a)(1) (granting the Court 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 uny u*p."." or implied contract with the United States, or for liquidated or

unliquidated damages in cas"s not sounding in tort") (emphasis added); Wood u'

[Jnited States,961 F.2d 195, 197-98 (Fed. Cir. 1992)'

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The tort claims alleged by Mr. Clark are contained in causes ofaction three,

four, nine, fifteen, eighteen, twenty-five, and twenty-six.6 See Am. Compl. at 353-

409C, 430-38, 476-83,6L6-22. Cause ofaction three alleges the misappropriation

of plaintiffs invention --- the OOA program --- by a number of entities, including

state and local government agencies and employees, private law firms, federal

agencies and contractors, and private telecommunications companies. See Am.

Compl. at 353-77. Plaintiffs fourth cause of action alleges the misappropriation of

trade secrets related to his OOA program by such entities. See Am. Compl. at 378-

409C. In his ninth cause of action, Mr. Clark alleges that various state and local

government agencies and employees? misappropriated an industrial design of his

creation when they used a hall pass that is substantially similar to that designed by

plaintiff for the OOA program. See Am. Compl. at 430-38. Plaintiff s frfteenth

cause of action alleges the improper acquisition of trade secrets related to plaintiffs

OOA program by a variety of federal, state, and local agencies and employees, as

weII as private companies. See Am. Compl. at 476-83. Mister Clark's twenty-fifth

cause of action alleges that the government, "acting through unknown agencies'

[has] subjected Plaintiff and his industry to unfair practices in Import trade," Am'

compl. ,lJ 617, has "caused permanent damage to Plaintiffs domestic industries," id.

n 2226, and has destroyed his company, id. n 2227.8 Finally, plaintiffs twenty-sixth

cause of action alleges the misappropriation and infringement of "proprietary data

information" related to the OOA program. See Am. Compl' at 619-22'

Each of these claims sounds in tort, and thus, must be dismissed for lack of

jurisdiction.e See 28 U.S.C. $ 1a91(a)(1); Sterner u. United Stores, 198 Ct. CI. 979

6 Mister clark contends that these claims do not sound in tort, but rather are

takings claims. See Pl.'s Resp. at 55. The Court does not think that these claims

can be plausibly construed as takings claims, but dismissal would still be warranted

if they were so construed for the reasons set forth in section II.B.9. Plaintiff also

references the Tucker Act as the basis of these claims, PI.'s Resp. at 55, but as

noted, that Act does not create any substantive rights, and Mr. Clark has not

identified a separate source oflaw that creates a right to money damages'

? Plaintiff once again alleges that these actions were taken by the United States,

acting through various other agencies and individuals, but does not provide any

support for the contention that the United States played any role in this chain of

events. Plaintiff also seems to allege that a private law frrm "perhaps" played a role

in misappropriating his design. Compl. fl 1660-61'

s Plaintiffdoes not provide further elaboration ofthese claims in his discussion of

this cause of action. See Am. Compl. at 616-18.

s In addition, plaintiffs trade secret claim must be dismissed because a concept

disclosed in a patent (or here, a patent application), cannot be a trade secret. As the

Federal Circuit has explained: "A trade secret is secret. A patent is not That

-9-

(19?2) (claims for misappropriation of trade secrets sound in tort); Liberty

Ammunition, Inc. u. [Jnited States, l0I Fed. Cl. 581, 591 (2011) (claims for unfair

competition sound in tort). The Court notes that there are substantial overlaps

among many of plaintiffs claims, and the legal bases for these claims are at times

difficult to discern. Thus, to the extent that any ofthe claims discussed within this

section allege the unauthorized use of a patent, they do not fall within our court's

jurisdiction for the reasons set forth in section II.B.3, and to the extent that they

may allege copyright infringement, they do not state a claim for the reasons set

forth in section II.B.8.

Mister Clark alleges in his nineteenth cause of action that local, state, and

federal government agencies and employees, as well as private companies and law

firms, infringed his patent.10 See Am. Compl' at 515-36. Plaintiffs patent

infringement claims are based on his patent application for the OOA program

(Patent Application Number 11/153,118), from which no patent ever issued. see id.

since this application was never granted, and plaintiff has not identifred a patent of

his that was ever issued by the usPTo, plaintilf has failed to establish that he is

the owner of an issued patent --- a jurisdictional prerequisite to this court's

consideration of claims of patent infringement by the United States government.

See 28 U.S.C. $ 1a98(a) (establishing the court's jurisdiction over claims of

unauthorized use or manufacture of"an invention described in and covered by a

patent of the United States"); Amgen, Inc. u. Genetics Inst', Inc',98 F'3d 1328, 1332

if"a. Cl. 1996) (,[O]f course suit cannot be brought for infringement ofa patent

that has not issued."); Martin u. United States' 99 Fed' Cl' 627, 632-33 (2011)

(holding that our court lacks "jurisdiction over a claim for alleged infringement of

an unissued patent"). Indeed, in plaintiffs prior litigation, his patent infringement

allegations were dismissed for this same reason, and the Federal Circuit upheld

thaidismissal . See Clarh u. Crues, No. 4:05CV1344 JCH,2007 WL 906702 (E.D.

Mo. March 23,2007), affd,260 Fed' App'x. 292,294 (Fed' Cir' 2008) (holding

,,[clark] can maintain an action for patent infringement only if and when he has

been issued a patent").

The second and twenty-second causes of action in plaintiffs amended

complaint allege the violation of a secrecy order related to plaintiffs patent

which is disclosed in a patent cannot be a trade secret." Atl. Research Mhtg' sys.,

Inc. u. Troy,659 F.3d 1345' 1357 (Fed' Cir.20ll)'

r0 As explained above, this court does not have jurisdiction ovel Mr. Clark's claims

to the extent that they allege wrongdoing by entities other than the united states.

-10-

application. SeeAm. Compl. at 257-352,588-602. The Court lacks jurisdiction

over these claims as well, because plaintiff fails to meet the jurisdictional

prerequisites for bringing such a suit in our court. A plaintiff may seek

compensation related to a secrecy order under 35 U.S.C. $ 183 by either of two

"alternative litigation routes" --- (1) an applicant who has submitted a patent

application subject to a secrecy order can pursue an administrative route in which

the applicant first files a petition for compensation with the federal agency who

issued the order before filing suit; alternatively, (2) the owner of an issued patent

that was previously subject to a secrecy order can frle a suit in the Court of Federal

Claims. See 35 U.S.C. $ !83; Hornbach u. United States, 40 Fed. Cl. 524, 526-27

(1998). Here, Mr. Clark's claim fails because he has not identifred any secrecy order

related to his patent application --- a jurisdictional prerequisite for a claim under

either litigation route. Instead, plaintiff states that his application "may, or may

not have been subjected to a secrecy order." See Am. Compl. fl l07g. But even if

Mr. Clark had properly identifred a secrecy order, he failed to exhaust

administrative remedies before filing suit, as is required by the first litigation route.

see constant u. united states, 16 cl. ct. 629, 635 (1989), affd, 88a F.2d 1398 (Fed.

Cir. 1989), cert. denied,493 U.S. 1002 (1989) (holding rhat administrative

exhaustion was required). under the second route, Mr. clark's claim would also be

defective because he is not the owner of an issued patent. Accordingly, plaintiffs

secrecy order claims are dismissed.

In his sixteenth cause of action, Mr. Clark purports to bring a claim for

"unfair practices of exploitation trade" pursuant to 19 U.s.c. $ lagz(l), which allows

"an owner of [a] patent, copyright, mask work, or design,,that is subject to a trade

exclusion order to seek compensation in our court under 2g u.s.c. $ 149g. see Am.

compl. at 484-93. Because he fails to allege the existence of an exclusion order, the

court lacks jurisdiction over this claim. see zoltek corp. u. (Jnited srotes, bg Fed.

cl. 688, 694 (2003).

In his seventeenth cause of action, Mr. clark alleges that the government

deprived plaintiff of his "constitutionally protected Ip rights." see Am. compl. at

494-50I. This allegation is based on Article I, Section g, Clause g ofthe

constitution, which empowers congress "[t]o promote the progress of science and

useful Arts, by securing for limited rimes to Authors and Inventors the exclusrve

Right to their respective writings and Discoveries." u.s. const. art. I, g. Because

$

this clause is not money-mandating, the court does not have jurisdictioi over this

claim. See, e.g., Brown u. [Jnited States, 1-0b F.Bd 621, 628_24 (Fed. Cir. 1992)

(holding that our court does not have jurisdiction over Fourth Amendmenr claims

because it is not a money-mand ating); Tasby u. [Jnited states, gr Fed. cl. 844.846

- 1l -

(2010) (finding that the Court Iacks jurisdiction over claims brought pursuant to the

Ex Post Facto Clause, the First, Fourth, Fifth, Eighth, and Fourteenth

Amendments, and the separation ofpowers doctrine because these provisions are

not money-mandating).

7. Plaintiff's Implied-in-Fact Contract Claims: Causes of Action 27 and 28

Mister Clark's twenty-seventh and twenty-eighth causes of action purport to

be implied-in-fact contract claims, but do not suffrciently allege the elements needed

to prove an implied contract. See Am. Compl. at 628-28. The elements of an

implied-in-fact contract claim in our court are: (1) mutuality of intent to contract; (2)

consideration; (3) an unambiguous offer and acceptance; and, (4) actual authority on

the part ofthe government's representative to bind the government. Biltmore

Forest Broad, FM, Inc. u. United States, SSd F.3d lg7b, 13g0 (Fed. Cir. 200g).

Mister clark's twenty-seventh cause of action is based on an alleged failure

to "fairly and honestly consider proposals" --- presumably, this failure pertains to

the sLPS's purported acquisition of plaintiffs ooA program. see Am. compl. at

623-24. Plaintiff fails to allege any ofthe elements necessary to prove the existence

of an irnplied contract in his discussion of this claim, and insiead, merely makes

numerous broad assertions about various parties who "baited and enticed plaintiff

to submit his ooA program" to the sl,ps.rl see id.. ln his twenty-eighth cause of

action, Mr. clark also fails to allege an implied contract. Although he rnentions

"No-Bid contractual agreements approved in closed sessions," his assertions

regarding the actions of various school district employees and private companies do

not contain any of the details necessary to state a plausible claim for an implied

contract with the United States government.l2

1r In support of this cause ofaction, plaintiff

makes a variety of claims of doubttul

relevance to an implied contract claim. For example, plaintiff asserts that

"Defendant acting through sl-ps BoE did not Fairly and Honestly

consider

Defendant, acting through Rob Lee and/or schoor service system, proposal or Bid

because Lee provided No Bid or proposal." Am. compl.

I224s. plaintiff also srarcs,

"Defendant, acting through the identified parties herein, knowingly participated

in

improper business practices and personal conflict of interest actlviiies violating

+s

cFR Part 3 during the summer and FalI of 2o04 and throughout the 2004-0b

school

year." Id. lt 2247.

12 Instead, the complaint.contains

unusual allegations such as: ,,Defendant acting

through flocal school district employees, the sl-ps Board of Education, and

attorneys at a private law firm], did not consider Rob Lee's Bid, nor Lee.s

sub_

contractor Touchdown Enterprise, Inc., Bid Fairry and Honestly because

they didn,t

provide any Bids and No Bids were sought for said contract."

Am. compl. n 22bs.

Mister clark elaborated: 'Although plaintiff refers to an enticed proposal

as

compared to an unsolicited proposal, dated August, 2004,

said propo.ul is more Iike

-12-

In sum, because Mr. Clark does not explain how the actions identified in

these claims constitute the formation of implied contracts, and does not allege the

elements needed to prove such a claim, his allegations are insufficient to invoke this

court's jurisdiction. See Twp, of Saddle Brooh u. United States, I04 Fed. Cl. 101,

109-10 (2012) (citing /? idge Runner Forestry u. Sec'y of Agric., 287 F.3d 1058, 1060

(Fed. Cir. 2002)) (explaining that dismissal for Iack of subject-matter jurisdictron rs

appropriate when allegations as to the existence of an implied contract are

"insubstantial"). In addition, Mr. Clark's allegations do not plausibly implicate the

United States as a contracting party, and thus, fall outside of our jurisdiction for

this reason as well. Finally, to the extent that Mr. Clark attempts to style these

claims as a bid protest, he has not established this Court's jurisdiction because he

has not identified a federal solicitation, proposed award, award, or alleged violatron

of a statute or regulation in connection with a procurement or proposed

procurement, as is required by 28 U.S.C. $ 1491(b). See Am. CompI. ll 2246.

8. Plaintiff's Copyrieht Infrineement Claims: Causes of Action 5-8. 10-14.

and 20

Mister Clark makes numerous allegations of copyright infringement. See

Am. Compl. at 410-30 (Causes of Action 5-8); Am. Compl. at 439-7 5 (Causes of

Action 10-14); Am. Compl at 542-56 (Cause of Action 20). Plaintiffs eighteenth

cause of action for "Infringement of IP Rights" may also be based on a copyright

infringement theory.tl See Am. Compl. at 502-14. At issue in each of these

allegations is Mr. Clark's copyright of various materials for his OOA program. The

majority of these claims are directed toward the actions of state and Iocal

government employees --- primarily, local school and school system employees, as

well as private individuals. See, e.g., Am. Compl. fll| 1629-30, 1693,1741-43,2002.

As indicated above, this court has no jurisdiction over such claims.

Plaintiff also alleges wrongdoing by a number of federal agencies in support

of his copyright infringement claims. For example, he contends that the federal

a Bid to assist the SLPS and show them how to implement his OOA program at a

compensable rate the same as his teaching salary." Am. Compl. n 2254.

13 It is difficult to discern the basis ofthis claim, despite its title,plaintiff

because

merely states that numerous individuals and entities "Infringed Plaintiffs

Exclusive IP Rights," without offering critical details concerning the alleged

infringement, such as a description ofwhat was allegedly infringed or the nature of

such infringement. See, e.g., Am. Compl. flfl 1837-49. Plaintiff also describes

interference with his internet access and telephone service in this count. To the

extent that this claim is thus based in tort, it is dismissed for the reasons stated in

section II.B.2, and to the extent that it may be based on a patent infringement

theory, it is dismissed for the reasons stated in section II.B.B.

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government "obtained unauthorized access to Plaintiffs personal computer

activities including access to his OOA computer program trade secret systems while

Plaintiff developed and maintained his OOA expressions." Am. Compl. fl 1590. He

further alleges: "Shortly after Defendant acting through unknown agencies

obtained Plaintiffs OOA program Trade Secrets and computer program systems

Defendant acting through the BIS an agency ofthe DOE filed numerous Revisions

[in the Federal Register] that may, or may not have pertained to the Governments

obtainment of said IP." Id. n 1597. The heart of plaintiffs complaint with respect

to the federal government seems to be that the government, upon obtaining access

to his OOA program, deprived plaintiff of his exclusive right to this work by

distributing it to its contractors and sub-contractors. See td. fl![ 1638-39, 1694-95,

1735,1745. This claim seems to be based in part on the idea that contractors such

as RTI International distributed programs allegedly derived from plaintiffs

copyrighted work. See td. flfl 169.{-95.

These claims, too, must be dismissed for several reasons. First, many of

these claims are not based on the infringement ofany interest protectable by

copyright law. It is axiomatic that "the protection granted to a copyrighted work

extends only to the particular expression ofthe idea and never to the idea itself."

Meade u. United States, 27 Fed. Cl. 367, 371 (1992) (citing.Felsr Publ'ns, Inc. u.

Rural TeI. Seru. Co.,499 U.S. 340 (1991)). This distinction is codified in 17 U.S.C.

$ 102, which states:

In no case does copyright protection for an original work of authorship

extend to any idea, procedure, process, system, method of operation,

concept, principle, or discovery, regardless ofthe form in which it is

described explained, illustrated, or embodied in such work.

17 U.S.C. S 102@). Although Mr. Clark alleges infringement of his OOA program,

the bulk ofhis allegations concern the use of tine ideas underlying his program.

rather than the expression ofthose ideas. That copyright protection does not extend

to such ideas is clear, and thus, to the extent that plaintiffs claims are based on

such a theory, they must be dismissed for failure to state a claim.ra See, e.g., Feist

Publ'ns, 499 U.S. at 344-50 (discussing the distinction between ideas and

expression); Harper & Row Publishers, Inc. u. Nation Enters.,4?1 U.S. bgg, bg1

(1985) (explaining that section 102 of the Copyright Act ',extends copyright

la rhe government characterizes the nature of Mr. clark's allegedly infringed work

as a "business idea" in its motion to dismiss. see Def.'s Mot. at 21-22. Mister clark

disputes this label, apparently misunderstanding the government,s argument as

one that Mr. clark's invention is a business, or an idea of a business. See pl.'s Resn.

at 67. This misunderstanding is not relevant to the Court's decision, as the

government was merely discussing the distinction between the copyright ofideas

versus the expression of ideas. See Def.'s MoL at 2I-22.

t4-

protection to an author's literary form but permits free use by others ofthe ideas

and information the author communicates"); Boyle u. United States, 200 F.3d 1369,

1373 (Fed. Cir. 2000) ("Copyright protection does not extend to ideas expressed in a

copyrighted work."); Shiphouitz u. United States, 1Cl. Ct. 400, a03 (1983) ("Ut is

well known in copyright law that copyright registration only affords protection

against the manner in which a writing is written, and does not protect the ideas

contained therein."); Meade,27 Fed. Cl. at 371 (holding that a heart-shaped picture

ofthe Earth is not copyrightable because it is an idea, not an expression).

Mister Clark also alleges infringement of the expression of his copyrighted

work in his allegations concerning the OOA hall pass. See, e.g., Am. Compl.

fl!| 1629, 1735,774I. Upon a careful reading of Mr. Clark's allegations, it is evident

that Mr. Clark's grievance is with state and local government offrcials, and thus

presents a matter which falls outside ofthis court's jurisdiction. Moreover, even if

this matter were within our jurisdiction, it was previously adjudicated and would

thus be dismissed on res judicata grounds. See Clarh u. Crues, No. 4:05CV1344,

2007 WL 906702 (E.D. Mo. March 23, 2007) (dismissing Mr. Clark's claim for

infringement ofhis OOA program copyright by school and school system employees

and the Board of Education of the City of St. Louis), aff'd,260 F. App'x 292 (Fed.

Cir. 2008). To the extent that Mr. Clark has alleged infringement by the federal

government of the expression of his OOA work, Mr. Clark's allegations fail to

plausibly allege such infringement. The amended complaint is replete with

"threadbare" assertions of federal government involvement, but contains few details

from which the court could reasonably conclude that such involvement occurred,

and thus is insufficient to state a claim. See lqbal, b56 U.S. at 668; Twombly, EE}

U.S. at 555. In addition, a comparison of the copyrighted OOA program with the

alleged infringing work does not reveal sufficient similarity of expression to

constitute an infringement of Mr. clark's copyright. compare "Filings Made under

Seal," ECF No. 6, ruith Exs. 192-94, 2II,26E-66 to Compl., ECF No. 11.

Mister Clark's remaining claims, as alleged in his twenty-first and twenty-

third causes of action, are for Fifth Amendment takings. see Am. compl. at bb7-g0,

603-10. The Fifth Amendment prohibits the taking of private property by the

government for public use without just compensation. This court has exclusive

subject-matter jurisdiction over takings claims against the federal governmenr

seeking more than 910,000 in compensation. 23 U.S.C. $ 1a91(a)(1); Joz,s

^9ee

Helicopter seru., Inc. u. Fed. Auiation Admin., b25 F.Bd 1299, 1B0g-10 (Fed. cir.

2008).

Mister clark's twenty-first cause of action contains two counts, the first of

which is based entirely on alleged actions by state and local government agencies

-15-

and employees and, thus, does not fall within our jurisdiction.l5 See Am. Compl. at

564-75. Aithough much ofthe second count ofthat cause of action and the twenty-

third cause of action similarly alleges wrongdoing by entities other than the United

states government, these counts do identify some actions allegedly taken by federal

government agencies resulting in the purported taking of plaintiffs OOA progranl. re

Nevertheless, these claims must also be dismissed because their allegations of

federal government involvement are implausible and, for the most part,

unsupported by any detail whatsoever. For example, in the twenty-third cause of

action, Mr. Clark alleges that:

Defendant, acting through unknown state of MO and Federal agencies

of the Government, physically deprived plaintiff from disclosine and

from communicating the subject matter of his personal IOOA IFI

property with the public and did so using prior Restraint, censorship

and Mass Surveillance, and is continuing said physical

deprivations . . . .

Am' compl. tT 2188. In count two of the twenty-first cause of action, Mr. clark

alleges that:

Defendant acting through Congressional Acts and Regulations of the

Federal Government approved Legislation and Bills subjected

Plaintiffs OOA Ip to being [T]aken by the Government . . . .

'rlhich

Id. atll 2086.

while such claims do, at least on their face, identify the federar government

as the purported actor, thev fail to plausibly preai "factual

court to draw the reasonable inference that tle defendant is

.o"t""i

tirritl allow.trr"

liable ftr the

misconduct alleged," and instead contain mere "threadbare,,

assertions

the federal government's invorvem-ent. see lqbar, bb6 u.s. at "ega"airrg

668 (citing fi*omuty,

550 u.s. at 555-56). This is insufficient to survive a

motion to dismiss. see ld.

i![oreover' even if plaintiff had sufficiently identified action

taken by the

federal government as the basis of his craims, his takings craims

would rrit

because they do not sufficiently allege o*rr"."hip of a "tu

compensable property

interest. see Am. Pelagic Fishing co. u. united, states, B79l..sd

1g6s, rB72 Ged..

15 To the extent that Mr. clark arleges that the actions ofthese

state and local

individuals and agencies were o"chestrated by the federal govern-"rrt,

contarns no supporting information to support that assertron.

trri.

"orrrrt

16 Plaintiff also aileges federal government involvement in the

condemnation of his

personal residence. The court finds no support

for the assertion that the feierar

government played a role in this process. See

Am. Compl. fltf 2Og4_gS.

-16-

Cir. 2004) (citing Maritrans Inc. u. United States,342 F.3d 1344, 1352 (Fed. Crr.

2003)). Because Mr. Clark alleges the taking ofproperty not covered by an issued

patent, and not protected by his copyright because it is a business idea, he has not

alleged the taking ofa legally cognizable property interest. Therefore, his takings

allegations are insufficient to state a claim against the United States, even if they

can be read as properly alleging federal government involvement.

As explained above, to the extent that any ofthe counts within plaintiffs

twenty-eight causes ofaction allege wrongdoing by any party other than the federal

government or its agents, these are dismissed for lack of subject-matter jurisdiction

pursuant to RCFC 12(bX1). Causes of action 1-4, 9, 15-19, 22, and 24-28 arc also

dismissed for Iacking subject matter jurisdiction. In the alternative, to the extent

they would be construed as alleging a taking or a copyright infringement, causes of

action 3, 4, 9, 15, 18, 25 and 26 are dismissed for failing to state a claim for which

relief may be granted pursuant to RCFC 12(b)(6). And causes of action b-8, 10_14,

20-2I, and 23 are also dismissed under RCFC 12ftX6).

III. CONCLUSION

For the foregoing reasons, the government's motion to dismiss plaintiffs

entire Amended Complaint is hereby GRANTED pursuant to RCFC 12(bX1) & (6).

Plaintiffs three motions for sanctions are DENIED, and all other pending motions

are DEMED as moot. The clerk shall enter judgment accordingly. No costs shall

be awarded.

IT IS SO ORDERED.

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