Perry v. United States

In the United States Court of Federal Claims

No. 19-1797C

(Filed: June 17, 2020)

)

MOSHE AVRAM PERRY, ) RCFC 12(b)(1); RCFC 12(b)(6); Tucker

) Act claims; illegal exaction claims;

Plaintiff, ) money-mandating claims; takings

) claims; implied-in-law contract claims;

v. ) patent claims, 28 U.S.C. § 1498(a);

) 35 U.S.C. § 122(a); RCFC 41(b);

THE UNITED STATES, ) frivolous complaint and filings,

) 28 U.S.C. § 1915(e)(2)(B)(i).

Defendant. )

)

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.

OPINION AND ORDER

SOLOMSON, Judge.

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

1 The applications Mr. Perry identifies are: No. 14/794,807, No. 15/382,598, and No. 15/709,307.

See Compl. ¶ 1. A search of the USPTO’s patent application database shows that application

No. 15/382,598 purports to “address[ ] waste of liquids in all sorts of bottles/containers made

from plastic, glass, metals [sic] bottles, containers, dispensers, caps which use pumping action

to expel all sorts of liquids.” See U.S. Patent Application No. 15/382,598, Publication

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 this

No. 20180235408 (published Aug 23, 2018) (Moshe Avram Perry, applicant), available at

http://appft.uspto.gov/netahtml/PTO/search-bool.html (last visited, Apr. 28, 2020). The

Court could not locate the other putative applications in the database. Regardless, neither the

subject matter nor the precise contents of Mr. Perry’s patent applications are relevant to the

Court’s resolution of the government’s pending motion to dismiss.

2

The reference to the APA is to the Administrative Procedure Act. See Compl. ¶ 318.

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Court 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.

3 On March 6, 2020, Mr. Perry sought to file both his response to the motion to dismiss and an

“Application for a Preliminary and/or Permanent Injunction and Issue a Restraining Order

Against USPTO,” both of which the Court permitted to be filed, despite the Clerk of the Court’s

having identified filing defects. See ECF Nos. 15-17. For purposes of this opinion, the Court

treats Mr. Perry’s request for injunctive relief as part of his response to the government’s motion

to dismiss. Mr. Perry’s other attempted filings either were rejected or hereby are rejected for

failing to comply with this Court’s rules (and because the filings are generally duplicative of

each other). This decision thus resolves the government’s pending motion and Mr. Perry’s

motion for injunctive relief, and renders moot any of his subsequent, attempted filings.

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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).

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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 granted.

III. The Distinction Between RCFC 12(b)(1) And RCFC 12(b)(6) For Tucker Act

Claims

The question of when a claim should be dismissed for lack of jurisdiction

pursuant to RCFC 12(b)(1) — as opposed to for failure to state a claim pursuant to

RCFC 12(b)(6) — has engendered no small amount of confusion within this Circuit and

among litigants. 4 The Tucker Act’s language itself may be to blame. In a single

sentence, the Tucker Act appears to link inextricably the jurisdictional and merits

inquiries by vesting this Court with “jurisdiction to render judgment upon” particular

“claim[s] against the United States.” 28 U.S.C. § 1491(a)(1) (emphasis added). With

limited exceptions, the Tucker Act generally authorizes this Court only to decide

particular monetary claims against the United States: “actions pursuant to contracts . . .,

actions to recover illegal exactions of money . . ., and actions brought pursuant to

money-mandating” sources of law — i.e., the “claim[s]” over which this Court possesses

jurisdiction. Roth, 378 F.3d at 1384. The Court thus readily understands why, in any

given instance, the government might challenge — or why this Court might dismiss —

a complaint pursuant to either RCFC 12(b)(1) or 12(b)(6). 5

4See, e.g., Engage Learning, Inc. v. Salazar, 660 F.3d 1346, 1353 (Fed. Cir. 2011) (“Courts frequently

confuse or conflate the distinction between subject matter jurisdiction and the essential elements

of a claim for relief.”).

5 See Fisher, 402 F.3d at 1171–72 (“Separating the question of a federal court’s subject matter

jurisdiction over a cause from the question of what a plaintiff must prove in order to prevail in

the cause is, in many areas of the law, not a difficult matter: a specific statute sets the court’s

jurisdictional parameters; a separate statute or regulation or common law rule establishes the

right that allegedly has been breached. In Tucker Act jurisprudence, however, this neat division

between jurisdiction and merits has not proved to be so neat. In these cases, involving suits

against the United States for money damages, the question of the court’s jurisdictional grant

blends with the merits of the claim. This mixture has been a source of confusion for litigants

and a struggle for courts.”); Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679, 687 (Fed. Cir. 1992)

(“Confusion may arise when the factual allegations that constitute the cause of action include

allegations which are necessary to establish jurisdiction.”).

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The Federal Circuit, for its part, valiantly has tried to clarify the law, but

confusion persists. 6 Notwithstanding any suggestion to the contrary,7 there are

important implications that flow from dismissing a complaint for lack of jurisdiction as

opposed to for failure to state a claim: the latter is considered “on the merits” and

“usually carries res judicata effect, whereas a dismissal for lack of jurisdiction typically

does not.” Engage Learning, 660 F.3d at 1355. For this reason alone, there is a strong

incentive for litigants and the Court to understand the distinction and to get the

decision right, although that is easier said than done. Another important difference

between these two grounds for dismissal — and as relevant in this case — resides in

how the Court must analyze a complaint when resolving a motion to dismiss. But, to

fully understand this distinction, the Court must first recognize two categories of

jurisdictional attacks that a defendant in any court may assert: facial and factual.

A facial jurisdictional attack “challenges whether the court’s subject-matter

jurisdiction was properly pleaded.” Steven S. Gensler & Lumen N. Mulligan, 1 Federal

Rules of Civil Procedure, Rules and Commentary, Rule 12 (Feb. 2020 Update) [hereinafter

Federal Rules & Commentary]; see also Crow Creek Sioux Tribe v. United States, 900 F.3d

1350, 1355 (Fed. Cir. 2018) (addressing “facial challenge”). A facial attack itself can take

two forms. A defendant either can “assert that the plaintiff has failed to plead

jurisdiction as required by Rule 8(a)(1)” or “assert that, while properly pleaded per Rule

8(a)(1), the allegations—even when assumed to be true—fail to establish jurisdiction

under the relevant statute or constitutional provision.” Federal Rules & Commentary.

Regarding facial attacks, the Federal Circuit has explained:

[W]e join the majority of our sister circuits in holding that the

Supreme Court’s “plausibility” requirement for facial

challenges to claims under Rule 12(b)(6), as set out in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167

6 Spruill, 978 F.2d at 688 & n.11 (comparing cases and concluding that “[l]anguage in cases

decided in this court has not always been consistent with the basic principle[s] . . ., or with the

language of other Federal Circuit cases”).

7

In some cases, the Federal Circuit has observed that the distinction between RCFC 12(b)(1) and

RCFC 12(b)(6) dismissals is meaningful, while in other instances the Federal Circuit has treated

any such error as harmless. Compare Engage Learning, 660 F.3d at 1355 (“Mastering the

distinction between a dismissal for lack of jurisdiction and a dismissal on the merits ‘is not

merely an intellectual exercise without practical utility.’” (quoting Do–Well Mach. Shop, Inc. v.

United States, 870 F.2d 637, 640 (Fed. Cir. 1989)), with Brodowy v. United States, 482 F.3d 1370,

1376 (Fed. Cir. 2007) (“Because the distinction between the two forms of dismissal has no

apparent practical effect in this case, however, we need not remand for purposes of correcting

the judgment in that respect.” (emphasis added) (citing Lewis v. United States, 70 F.3d 597, 603–

04 (Fed. Cir. 1995), Doe v. United States, 463 F.3d, 1314, 1325 (Fed. Cir. 2006), and Moden v. United

States, 404 F.3d 1335, 1340–41 (Fed. Cir. 2005)).

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L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678, 129

S. Ct. 1937, 173 L.Ed.2d 868 (2009), also applies to facial

challenges to subject-matter jurisdiction under Rule 12(b)(1).

Crow Creek Sioux Tribe, 900 F.3d at 1354–55. Thus, “[t]hreadbare recitals of [claim]

elements . . ., supported by mere conclusory statements, do not suffice” to confer

jurisdiction. Id. (quoting Iqbal, 556 U.S. at 678).

A factual attack, on the other hand, “challenges the truth of the jurisdictional

facts alleged in the complaint.” Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746,

747 (Fed. Cir. 1988). Once the government lodges a factual attack against a complaint

that purports to invoke the Court’s subject-matter jurisdiction, the burden shifts to the

plaintiff to “establish[] subject-matter jurisdiction by a preponderance of the evidence.”

Id. at 748. The Court “may consider relevant evidence in order to resolve the factual

dispute[,]” but must afford the plaintiff an “opportunity to be heard before dismissal is

ordered[.]” Id. at 747-48.

None of these distinctions or burden-shifting procedures shed light, however, on

a fundamental question: when should the Court dismiss an apparently deficient

complaint pursuant to RCFC 12(b)(1) on jurisdictional grounds, instead of pursuant to

RCFC 12(b)(6) for failure to “state a claim upon which relief can be granted”? Applying

the Federal Circuit’s guidance to answer that question — particularly in the context of a

lengthy, confusing complaint — is not a self-executing, mechanical task. Accordingly,

this Court first sketches out the basic principles with respect to each Tucker Act claim

type, before turning to apply them in resolving the government’s pending motion to

dismiss. Roth, 378 F.3d at 1384.

A. Contract Claims

The Federal Circuit has “held that jurisdiction under [the Tucker Act] requires no

more than a non-frivolous allegation of a contract with the government.” Engage

Learning, 660 F.3d at 1353 (emphasis added) (citing Lewis, 70 F.3d at 602, 604, and Gould,

Inc. v. United States, 67 F.3d 925, 929–30 (Fed. Cir. 1995)). In Gould, the contractor

alleged the existence of both an express and an implied-in-fact contract with the United

States. 67 F.3d at 929–30. The government argued that the Court lacked jurisdiction

because the plaintiff’s allegation of illegality voided the express contract and a United

States Supreme Court decision barred recovery on an alleged implied-in-fact contract.

Id. The Federal Circuit held that “the proper basis for such a dismissal, if it is in fact

warranted, is failure to state a claim upon which relief can be granted” given the

nonfrivolous allegations of a contract. Id. at 929 (“there is no question that [plaintiff’s]

complaint alleges the existence of an express contract”).

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In Lewis, the Federal Circuit explained the test used to determine whether a

plaintiff’s complaint states a nonfrivolous allegation:

[A] complaint alleging that the plaintiff has a right to relief on

a ground as to which the court has jurisdiction raises a

question within the court’s subject matter jurisdiction as long

as the asserted basis of jurisdiction is not pretextual, i.e., as

long as the jurisdictional ground asserted in the complaint

does not “appear[ ] to be immaterial and made solely for the

purpose of obtaining jurisdiction.”

70 F.3d at 603 (quoting The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913),

overruled on other grounds by Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1

(1983)). The Federal Circuit further explained:

To be sure, the Supreme Court has stated that there may be

instances in which a claim that is otherwise within the court’s

jurisdiction is so insubstantial on its merits that a dismissal

may be termed jurisdictional. In this century, however, the

Court’s references to that exception to the general rule have

often been unenthusiastic, and it may be that the exception is

best viewed as a vestige of nineteenth-century practice that

has no continuing vitality in the age of modern pleading.

Id. (citing cases, including Montana–Dakota Util. Co. v. Nw. Pub. Serv. Co., 341 U.S. 246,

249 (1951)). Accordingly, the Federal Circuit noted that “such jurisdictional dismissals

for frivolousness must be ‘confin[ed]’ to cases ‘that are very plain.’” Id. at 603-04

(quoting Hart v. B.F. Keith Vaudeville Exch., 262 U.S. 271, 274 (1923)).

Thus, “the question of whether a contract exists” generally appears not to be “a

jurisdictional one,” unless, however, a plaintiff does “not plausibly allege the existence

of a contract.” Engage Learning, 660 F.3d at 1355. In that regard, this Court lacks

jurisdiction where a plaintiff’s allegations are “immaterial and made solely for the

purpose of obtaining jurisdiction.” Lewis, 70 F.3d at 603-04 (internal quotation omitted);

see Ibrahim v. United States, 799 F. App’x 865, 867 (Fed. Cir. 2020) (“A non-frivolous

allegation that a contract exists between a plaintiff and the United States is sufficient to

invoke the subject matter jurisdiction of the Claims Court, but dismissal may be proper

for lack of subject matter jurisdiction if the claim is wholly insubstantial and frivolous.”

(quoting Lewis, 70 F.3d at 602–04 (internal quotes omitted)).

B. Money-Mandating Claims

For a money-mandating claim, “all that is required is a determination that the

claim is founded upon a money-mandating source [of law] and the plaintiff has made a

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nonfrivolous allegation that it is within the class of plaintiffs entitled to recover under

the money-mandating source.” Jan’s Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1309

(Fed. Cir. 2008). In Jan’s Helicopter, the Federal Circuit explained that the jurisdictional

pleading requirement “is satisfied when a plaintiff makes ‘a non-frivolous assertion that

[plaintiffs] are entitled to relief under the statute.’” Id. at 1307 n.8 (citing Brodowy, 482

F.3d at 1375); Brodowy, 482 F.3d at 1375 (“Where plaintiffs have invoked a money-

mandating statute and have made a non-frivolous assertion that they are entitled to

relief under the statute, we have held that the Court of Federal Claims has subject-

matter jurisdiction over the case.”).

Senior Judge Bruggink helpfully summarized the proper inquiry, as follows:

“[i]f a statute or regulation does mandate the payment of money, it is sufficient to

trigger jurisdiction if plaintiff [also] shows that ‘he is within the class of plaintiffs

entitled to recover under the money-mandating source.’” Monzo v. United States, 2013

WL 6235608, at *3 (Fed. Cl. Nov. 27, 2013) (quoting Jan’s Helicopter, 525 F.3d at 1307); see

Brodowy, 482 F.3d at 1375. 8 But, “[t]he question of whether the claimant actually ‘falls

within the terms of the statute’ or regulation is a merits issue.” Monzo, 2013 WL

6235608, at *3 (emphasis added) (quoting Greenlee County v. United States, 487 F.3d 871,

876 (Fed. Cir. 2007) (internal quotation marks omitted)).

Regarding takings claims, in particular, “[i]t is undisputed that the Takings

Clause of the Fifth Amendment is a money-mandating source for purposes of Tucker

Act jurisdiction.” Jan’s Helicopter, 525 F.3d at 1309 (citing Moden, 404 F.3d at 1341).

Thus, where a plaintiff “[1] allege[s] a taking [2] of their property [3] by the

government” and is “within the class of plaintiffs entitled to recovery if a takings claim

is established,” the Court of Federal Claims has subject-matter jurisdiction over the

plaintiff’s complaint. 525 F.3d at 1309. On the other hand, a complaint that “fails to

mention the Takings Clause or the Fifth Amendment at all” or that “fails to allege facts

sufficient to establish responsibility of the United States for [the] acts” or that is founded

upon the premise “‘that the United States has taken unlawful action’” is insufficient to

invoke this Court’s jurisdiction. Landreth v. United States, 797 F. App’x 521, 523 (Fed.

Cir. 2020) (quoting Moody v. United States, 931 F.3d 1136, 1142 (Fed. Cir. 2019)).

C. Illegal Exaction Claims

With regard to illegal exactions, the Court cannot perceive any reason to depart

from the general rule that a plaintiff’s complaint must contain nonfrivolous factual

allegations that the plaintiff is entitled to recover money for the government’s

8See also Casa de Cambio Comdiv S.A., de C.V. v. United States, 291 F.3d 1356, 1361 (Fed. Cir. 2002)

(affirming Court of Federal Claims decision dismissing case for lack of jurisdiction where “the

regulations [at issue] are not money-mandating as to [plaintiff]”).

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purported improper action. See Harris v. United States, 2014 WL 10936253, at *1 (Fed. Cl.

Apr. 16, 2014) (dismissing illegal exaction claim for lack of subject-matter jurisdiction

based on a finding that “there [was] no nonfrivolous illegal exaction claim in this suit”);

cf. Reid v. United States, 2020 WL 2764753, at *19 (Fed. Cl. May 8, 2020) (denying motion

to dismiss illegal exaction claim based on alleged illegal actions of the Federal Housing

Finance Agency (“FHFA”), and finding that plaintiffs’ allegations “that the FHFA is

unconstitutionally structured” and that it “violat[ed] . . . its own regulations” are

“sufficient to establish . . . an illegal-exaction claim”).

* * * *

In sum, the Court reiterates that, in reviewing a plaintiff’s complaint, our

jurisdictional determination is not governed by the plaintiff’s characterization of its

claims and “[t]hreadbare recitals of [claim] elements . . ., supported by mere conclusory

statements” or frivolous allegations, do not suffice. Crow Creek Sioux Tribe, 900 F.3d at

1354–55. As Justice Holmes wrote: “if the plaintiff really makes a substantial claim

under an act of Congress there is jurisdiction whether the claim ultimately be held good

or bad.” Kohler Die Co., 228 U.S. at 25 (emphasis added). Where a claim fails to clear

even this low bar, the Court has no jurisdiction to decide the claim’s merits.

The inescapable reality, however, is that there is no scientific bright line dividing

the question of jurisdiction from that of a failure to state a claim. Indeed, if there is such

a line, it is at the subatomic level and there is no judicial electron microscope up to the

task of rendering that line visible to the naked eye. Carter v. Homeward Residential, Inc.,

794 F.3d 806, 808 (7th Cir. 2015) (“[T]here is a sliding scale of substantiality, and at some

point on the scale a claim is actionable. No one has explained how that point is to be

determined. It remains indeterminate, a source of needless uncertainty.”). That the

dividing line is indeterminate, however, does not relieve this Court from its duty to

make such a judgment — a call at the plate — regarding whether a plaintiff has pleaded

sufficient facts to invoke Tucker Act jurisdiction or whether the complaint “should be

dismissed by the [trial] court on the merits[.]” Id. at 809.

How frivolous — or how dependent on bare, conclusory legal assertions — must

a complaint be, in order to justify a dismissal for lack of jurisdiction? The Seventh

Circuit has provided a useful metaphor to answer that question:

We once gave the example of a hypothetical dispute over

bananas described by the parties as “securities” so that they

could litigate their dispute in the federal courts under federal

securities law. Congress would not have wanted the federal

courts to waste their time with such a case, and the courts

therefore have an independent duty to refuse to entertain it.

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Carr v. Tillery, 591 F.3d 909, 917 (7th Cir. 2010) (internal citation omitted) (discussing

Crowley Cutlery Co. v. United States, 849 F.2d 273, 277 (7th Cir. 1988)).

Returning to this Court’s jurisdiction, the bottom line is that a plaintiff cannot

simply dress up a claim in Tucker Act clothes and vest this Court with jurisdiction. Just

as a plaintiff cannot invoke federal jurisdiction by asserting that bananas are securities,

so too a plaintiff cannot magically transform torts into government contracts or

otherwise recite a Tucker Act incantation to create jurisdiction where it does not exist.

Iqbal, 556 U.S. at 679 (allegations that are “no more than conclusions, are not entitled to

the assumption of truth”); Twombly, 550 U.S. at 555 (complaint must contain more than

mere statements providing “labels and conclusions” or “a formulaic recitation of the

elements of [jurisdiction]”); Crow Creek Sioux Tribe, 900 F.3d at 1354–55 (“’To survive a

motion to dismiss . . . a complaint must contain sufficient factual matter’ that would

plausibly establish . . . [jurisdiction, and] “’[t]hreadbare recitals of the elements . . .

supported by mere conclusory statements, do not suffice.’” (quoting Iqbal, 556 U.S. at

678)); Clark v. United States, 2014 WL 3728172, at *4 (Fed. Cl. 2014) (“[A]llegations of

federal government involvement which fail the standards of Twombly and Iqbal must be

dismissed under RCFC 12(b)(1).”), aff’d, 632 F. App’x 1027 (Fed. Cir. 2015); Williams v.

Emp’rs Mut. Cas. Co., 845 F.3d 891, 901 (8th Cir. 2017) (court cannot “prioritize a

complaint’s use of magic words over its factual allegations”).

Nevertheless, “[t]he presumption . . . is that the dismissal of even a very weak

case should be on the merits rather than because it was too weak even to engage . . .

jurisdiction.” Carr, 591 F.3d at 917. Indeed, the Federal Circuit directs that we err on

the side of a merits dismissal pursuant to RCFC 12(b)(6). Lewis, 70 F.3d at 603 (“[A]

complaint alleging that the plaintiff has a right to relief on a ground as to which the

court has jurisdiction raises a question within the court’s subject matter jurisdiction as

long as the asserted basis of jurisdiction is not pretextual, i.e., as long as the

jurisdictional ground asserted in the complaint does not ‘appear[ ] to be immaterial and

made solely for the purpose of obtaining jurisdiction.’” (quoting Kohler Die & Specialty

Co., 228 U.S. at 25) (emphasis added)). Indeed, if that were not the case, “in light of the

rule that a jurisdictional dismissal is not res judicata as to the underlying merits of the

dispute, . . . the ‘frivolousness’ exception gives rise to the anomaly that if frivolous

claims are dismissed for want of jurisdiction, rather than on the merits, the principles of

res judicata will be least applicable to the most insubstantial claims.” Lewis, 70 F.3d at

603 (citing Do–Well Machine Shop, 870 F.2d at 640).

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IV. Mr. Perry’s Claims Are Not Within This Court’s Jurisdiction Or Must Be

Dismissed For Failure To State A Claim As A Matter Of Law Upon Which

Relief Can Be Granted

Taking into consideration Mr. Perry’s pro se status by broadly construing his

arguments — and, of course, assuming that all of his plausible factual allegations are

true, as the Court must at this stage 9 — this Court nevertheless holds that Mr. Perry’s

claims either fall outside of this Court’s jurisdiction or fail to state a claim upon which

relief can be granted. In either case, Mr. Perry’s claims must be dismissed.

Before addressing the government’s arguments in its motion to dismiss, the

Court notes that Mr. Perry repeatedly has failed to comply with this Court’s Rules in a

number of important respects. For example, pursuant to RCFC 10(a), “the United States

[must be] designated as the party defendant.” This means not only that the United

States must be included as a party defendant, but also that it must be the sole defendant

named in the complaint. Kemp v. United States, 124 Fed. Cl. 387, 392-93 (2015) (“The only

proper defendant for any matter before this court is the United States, not its officers,

nor any other individual.” (emphasis added)). In Mr. Perry’s Complaint, and in all of

his subsequent filings, Mr. Perry included an exhaustive list of other government

agencies and officials who are not proper defendants in this Court, including, but not

limited to, the USPTO and “All Other Defendants in their Administrative and Official

Capacities.” Compl. at 1; see also Pl. Resp. at 1. Furthermore, Mr. Perry submitted nine

additional attempted filings that this Court did not request, and that were either

duplicative of one another or did not comply with this Court’s Rules regarding the form

or timing of filings. See ECF No. 22 (April 24, 2020 Order “Rejecting Plaintiff’s

4/20/2020 and 4/22/2020 Nine Submissions”).

Failure to follow this Court’s Rules may, in some instances, independently

warrant dismissal of an action, although the Court does not rely upon such grounds

here. See RCFC 41(b) (providing for sua sponte dismissal “[i]f the plaintiff fails . . . to

comply with these rules”); Whiting v. United States, 99 Fed. Cl. 13, 17 (2011) (citing Kadin

Corp. v. United States, 782 F.2d 175, 176–77 (Fed. Cir. 1986), for the proposition that

although “dismissal of a claim is a harsh action, especially to a pro se litigant, it is

justified when a party fails to pursue litigation diligently and disregards the court's

rules”). While Mr. Perry’s procedural missteps may constitute a simple

misunderstanding of how this Court operates, more likely — as explained infra — they

9Because the government’s motion makes a facial attack on the jurisdictional facts contained in

Mr. Perry’s Complaint, this decision assumes that such allegations — but not legal conclusions

— are true for the purposes of resolving the pending motion to dismiss. Iqbal, 556 U.S. at 678

(“[F]or the purposes of a motion to dismiss we must take all of the factual allegations in the

complaint as true.” (emphasis added)).

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underscore Mr. Perry’s mistaken view of this Court’s jurisdiction, or what is required to

state a proper claim in this Court pursuant to the Tucker Act.

At base, Mr. Perry fails to meet his burden to assert non-frivolous, factual

allegations in his Complaint sufficient to invoke this Court’s jurisdiction. Mr. Perry’s

use of Tucker Act language often is nothing more than a pretext for an attempt to

invoke this Court’s jurisdiction over claims that otherwise would be clearly outside of

it. Lewis, 70 F.3d at 603 (emphasizing that “a complaint[‘s] . . . asserted basis of

jurisdiction . . . [can]not [be merely] pretextual”). Moreover, at a minimum, Mr. Perry’s

Complaint fails, as a matter of law, to state a claim upon which relief can be granted.

Accordingly, whether pursuant to RCFC 12(b)(1) or 12(b)(6), Mr. Perry’s Complaint

must be dismissed.

A. Mr. Perry’s Complaint Does Not Assert Any Patent-Related Claim Within

This Court’s Jurisdiction

Mr. Perry’s Complaint is based primarily upon three patent applications that he

allegedly submitted to the USPTO. Compl. ¶ 1. The Court of Federal Claims typically

possesses jurisdiction over patent-related claims only where the patent holder alleges

that its patent was “used or manufactured by or for the United States without license of

the owner thereof[.]” 28 U.S.C. § 1498(a). That statute applies, however, only to patent

infringement claims against the government, rather than embracing any and all patent-

related claims based on the government’s actions. See, e.g., Zoltek Corp. v. United States,

815 F.3d 1302, 1304 (Fed. Cir. 2016) (recognizing that § 1498(a) limits the “liability of the

United States for infringement” to a narrow set of circumstances); Honeywell Int’l Inc. v.

United States, 114 Fed. Cl. 637, 638 (2014) (explaining the narrow scope of the exclusive

grant of jurisdiction under § 1498(a)). Patent claims fall within § 1498’s ambit only

where infringement is alleged to have been undertaken “by or for the Government with

its authorization and consent.” Zoltek Corp, 815 F.3d at 1304. In this case, Mr. Perry

does not allege facts that support a patent claim within this Court’s jurisdiction.

To invoke this Court’s patent jurisdiction, a plaintiff must be a “patentee,” which

“‘has been interpreted to require that a suit for infringement must ordinarily be brought

by a party holding legal title to the patent[.]’” Mynette Tech. v. United States, 139 Fed. Cl.

336, 343 (2018) (quoting Enzo APA & Son, Inc. v. Geapag A.G., 134 F.3d 1090, 1093 (Fed.

Cir. 1998)). In this case, Mr. Perry’s Complaint, at its core, alleges that his patent

applications were improperly denied or otherwise mishandled. See, e.g., Compl.

¶¶ 111-120, 121-126. Put differently, Mr. Perry does not allege that he is “a party

holding legal title to the patent,” Mynette Tech., 139 Fed. Cl. at 343, as apparently his

patent applications were never granted. See Chinsammy v. United States, 95 Fed. Cl. 21,

24 (2010) (emphasizing that 28 U.S.C. § 1498(a) “covers ‘a patent’ not a patent

application”), aff’d, 417 F. App’x 950 (Fed. Cir. 2011). If Mr. Perry seeks to appeal or

otherwise challenge the denial of his patent applications, his remedy lies elsewhere. See

35 U.S.C. §§ 134(a) (appeals to the Patent Trial and Appeal Board (“PTAB”)), 141 (PTAB

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appeals to the Federal Circuit), 145 (civil action in the United States District Court for

the Eastern District of Virginia); see also Peter v. Nantkwest, Inc., 140 S. Ct. 365, 367 (2019)

(discussing 35 U.S.C. § 145). Accordingly, Mr. Perry’s allegations and claims regarding

the USPTO’s handling or review of his patent applications — regardless of their merits

— are beyond our Court’s subject-matter jurisdiction.

Mr. Perry’s other claims — based on the USPTO’s alleged mishandling of his

patent applications — similarly fall outside this Court’s jurisdiction. For example, this

Court does not have jurisdiction over FTCA claims, just as this Court lacks jurisdiction

to adjudicate claims “sounding in tort” generally. 28 U.S.C. § 1491(a)(1); see Rohland v.

United States, 136 Fed. Cl. 55, 65 (2018) (citing U.S. Marine, Inc. v. United States, 722 F.3d

1360, 1365–66 (Fed. Cir. 2013)). 10 Nor do Mr. Perry’s other asserted statutory bases for

his patent-related claims — including the APA — fall within this Court’s jurisdiction.

See, e.g., Martinez v. United States, 333 F.3d 1295, 1313 (Fed. Cir. 2003) (en banc) (“[T]he

Court of Federal Claims lacks APA jurisdiction . . . .”); Murphy v. United States, 993 F.2d

871, 874 (Fed. Cir. 1993). Mr. Perry does not rely upon an alleged money-mandating

statute or “point to some statute specifically conferring power upon the trial court to

grant his desired relief[.]” Ledford v. United States, 297 F.3d 1378, 1381 (Fed. Cir. 2002);

Adair v. United States, 497 F.3d 1244, 1250 (Fed. Cir. 2007) (“When the source of such

alleged right is a statute, it can only support jurisdiction if it qualifies, as most statutes

do not, as money-mandating.”).

Mr. Perry further appears to maintain that the Tucker Act itself somehow directly

authorizes suit in this Court to contest the USPTO’s actions. See, e.g., Pl. Resp. ¶¶ 21-24.

None of Mr. Perry’s factual assertions, however, amount to a claim within this Court’s

Tucker Act jurisdiction, and, as noted supra, this Court has no jurisdiction to generally

review an agency’s actions (e.g., pursuant to the APA). Lion Raisins Inc. v. United States,

416 F.3d 1356, 1370 n. 11 (Fed. Cir. 2005) (“Of course, no APA review is available in the

Court of Federal Claims.”).

This Court also lacks jurisdiction to entertain Mr. Perry’s requests for declaratory

judgment and mandamus relief. See Alvarado Hosp., LLC v. Price, 868 F.3d 983, 987 (Fed.

Cir. 2017) (“[The] Court of Federal Claims does not have jurisdiction . . . over . . . claims

seeking declaratory, injunctive, and mandamus relief[.]”); Dewakuku v. Martinez, 271

F.3d 1031, 1038 (Fed. Cir. 2001) (noting that in United States v. King, 395 U.S. 1, 5 (1969),

the U.S. Supreme Court “refus[ed] to find Declaratory Judgment Act jurisdiction at

10Contrary to Mr. Perry’s argument, Pl. Resp. ¶¶ 34-37, the Court of Federal Claims does not

have jurisdiction over tort actions based on its jurisdiction in vaccine injury cases. The National

Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq., expressly provides for this

Court’s jurisdiction in such cases. 42 U.S.C. § 300aa-12 (“Court jurisdiction”). Here, as the

government correctly observes, “Mr. Perry identifies no similar jurisdictional provision that

would allow this Court to hear his tort claims[.]” Def. Rep. at 3. Mr. Perry does not allege a

vaccine injury claim.

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Court of Claims ‘absen[t] an express grant of jurisdiction from Congress’”); Bundrick v.

United States, 785 F.2d 1009, 1010 (Fed. Cir. 1986) (“mandamus [is an] action[] over

which the Claims Court does not have jurisdiction”). Similarly, any claims rooted in the

USPTO’s alleged violation of criminal laws must be dismissed, as the “’function of

enforcing and policing the criminal law is assigned to the courts of general jurisdiction

and not to [the Court of Federal Claims.]’” Sanders v. United States, 252 F.3d 1329, 1335

(Fed. Cir. 2001) (quoting Kania v. United States, 650 F.2d 264, 268 (Cl. Ct. 1981)).

B. Mr. Perry’s Complaint Fails Either To State A Contract Claim Within This

Court’s Jurisdiction Or To State A Claim As A Matter Of Law Upon Which

Relief Can Be Granted

The government, in its reply brief, generously reads one of Mr. Perry’s claims as

an attempt to allege breach of contract — a type of claim that at least generally is within

this Court’s Tucker Act jurisdiction. See Def. Rep. at 3-4. That said, the

“[d]etermination of [this Court’s] jurisdiction starts with the complaint, which must be

well-pleaded in that it must state the necessary elements of the plaintiff’s claim,

independent of any defense that may be interposed.” Holley v. United States, 124 F.3d

1462, 1465 (Fed. Cir. 1997). Moreover, “[c]onclusory allegations of law and

unwarranted inferences of fact do not suffice to support a claim.” Bradley v. Chiron

Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998). Thus, as explained supra, Mr. Perry cannot

invoke this Court’s jurisdiction to adjudicate his grievances merely by invoking Tucker

Act language, such as “contract,” “taking,” “damages,” or “illegal exaction.” This Court

is not bound by Mr. Perry’s conclusory legal characterizations, and references in his

Complaint to an “express or implied contract with the United States[,]” Compl. ¶ 21, are

insufficient — standing alone — to vest this Court with jurisdiction.

Nevertheless, Mr. Perry appears to contend that his submission of patent

application data sheets to the USPTO formed “an agreement between the patent

applicant and the USPTO, and [that the] fees . . . paid [were] consideration.” Pl. Resp.

¶ 122. The Court cannot discern whether Mr. Perry asserts that he formed an express or

an implied-in-fact contract with the United States. In either case, this Court concludes

that Mr. Perry’s alleged submission of patent applications to the USPTO does not

constitute a contract claim within this Court’s jurisdiction. 11 Indeed, Mr. Perry’s use of

11 Although Mr. Perry’s contract claim is articulated at greater length in his response to the

government’s motion to dismiss, such filings cannot supplement the Complaint to establish

jurisdiction. Mendez-Cardenas v. United States, 88 Fed. Cl. 162, 166–67 (2009) (quoting Car

Carriers, Inc. v. Ford Motor Corp., 745 F.2d 1101, 1107 (7th Cir. 1984), for the proposition that “’it

is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to

dismiss’” to establish jurisdiction); McGrath v. United States, 85 Fed. Cl. 769, 772 (2009) (“This

court does not possess jurisdiction to hear claims presented for the first time in responsive

briefing.”). This Court consistently has reaffirmed this principle, as have other courts. See e.g.,

Davis v. United States, 108 Fed. Cl. 331, 338 n.4 (2012); Kortlander v. United States, 107 Fed. Cl. 357,

374 (2012); Hufford v. United States, 87 Fed. Cl. 696, 701 (2009); Michels v. United States, 72 Fed.

- 15 -

contract language is pretextual, and he cannot manufacture jurisdiction here through

the use of such terms. Lewis, 70 F.3d at 603.

The government thus is correct that Mr. Perry’s contract claim must be dismissed

for lack of jurisdiction. Def. Rep. at 4. Binding precedent “repeatedly [has] held that

[Tucker Act] jurisdiction extends only to contracts either express or implied in fact, and

not to claims [based] on contracts implied in law.” Hercules v. United States, 516 U.S.

417, 423 (1996); see Lumbermens Mut. Cas. Co. v. United States, 654 F.3d 1305, 1316 (Fed.

Cir. 2011) (“Implied-in-fact contracts, which are within the jurisdiction of the Court of

Federal Claims, differ significantly from implied-in-law contracts[] which . . . are

outside the [Court’s] jurisdiction[]” (citing City of Cincinnati v. United States, 153 F.3d

1375, 1377 (Fed. Cir. 1998))). Accordingly, in pleading contract claims against the

government, only those predicated upon express or implied-in-fact contracts fall within

this Court’s subject-matter jurisdiction. See, e.g., eVideo Owners v. United States, 126 Fed.

Cl. 95, 104 (2016) (dismissing complaint pursuant to RCFC 12(b)(1) because plaintiffs

merely “point[ed] to a duty that arises by operation of law to establish the alleged

contracts with the United States[,]” rather than “an implied-in-fact contract that would

fall within the [Court’s] jurisdiction”), aff’d, 680 F. App’x 1004 (Fed. Cir. 2017).

For example, in Lion Raisins, Inc. v. United States, the plaintiff alleged that the

Department of Agriculture breached an implied-in-fact contract, in failing to perform

statutorily required inspection services for which the plaintiff had paid. 54 Fed. Cl. 427,

432 (2002). This Court held that it lacked subject-matter jurisdiction because any such

obligations “would be implied in law, not implied-in-fact[.]” Id. In particular, the

Court reasoned that “the requirement for inspections and the payment of fees were

pursuant to law and not the result of (1) an offer, (2) acceptance, (3) consideration, and

(4) an agreement with a Government agent authorized to bind the Government.” Id. at

431 (internal quotation marks omitted); see Russell Corp. v. United States, 537 F.2d 474,

482 (Ct. Cl. 1976) (“Implied-in-fact contracts differ from contracts implied in law (quasi-

contracts), where a duty is imposed by operation of law without regard to the intent of

the parties. Such arrangements are treated as contracts for the purposes of remedy

only. This court, of course, has no jurisdiction to render judgment against the United

States based upon a contract implied in law.”).

Similarly, in eVideo Owners — a case upon which the government relies, and

which involved allegations similar to those contained in Mr. Perry’s Complaint — the

plaintiffs claimed that they entered into implied-in-fact contracts with the USPTO

Cl. 426, 432 (2006); Fischer v. Minneapolis Pub. Sch., 792 F.3d 985, 990 (8th Cir. 2015); Bissessur v.

Indiana Univ. Bd. of Trustees, 581 F.3d 599, 603 (7th Cir. 2009); Frederico v. Home Depot, 507 F.3d

188, 202 (3d Cir. 2007). Mr. Perry’s putative contract claim was presented, if anywhere, “for the

first time in responsive briefing[.]” McGrath, 85 Fed. Cl. at 772. Thus, even if Mr. Perry

sufficiently pleaded a contract claim in his opposition to the government’s motion — which the

Court concludes that he did not — the Court would not have jurisdiction to consider that claim.

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through paying patent application fees, and that the USPTO’s subsequent actions

violated those contracts. 126 Fed. Cl. at 104. This Court dismissed the breach of

contract claim for lack of subject-matter jurisdiction because plaintiffs “point[ed] to a

duty that arises by operation of law to establish the alleged contracts with the United

States[.]” Id. Such a duty, however, “cannot create an implied-in-fact contract that

would fall within the [Court’s] jurisdiction.” Id. (citing Lion Raisins, 54 Fed. Cl. at 432). 12

In this case, the Court agrees with the government that “Mr. Perry cannot conve[r]t this

statutory obligation into a contract simply by re-characterizing the fees that he paid to

the USPTO as consideration.” Def. Rep. at 4.

The fatal defect in Mr. Perry’s Complaint is that it does not allege facts that even

suggest the existence of an express or implied-in-fact contract. 13 Again, what Mr. Perry

cannot do is label his submission of USPTO data sheets an implied-in-fact contract to

confer jurisdiction here, nor is the Court bound by Mr. Perry’s conclusory legal

characterizations. See eVideo Owners, 126 Fed. Cl. at 104; Lion Raisins, 54 Fed. Cl. at 432;

see also Bradley, 136 F.3d at 1322. Accordingly, Mr. Perry’s claims stemming from the

submission of his USPTO application are not supported by non-conclusory factual

assertions sufficient to state a claim for breach of an express or implied-in-fact contract

that falls within this Court’s subject-matter jurisdiction.

12The basic rule is that “[t]he use of language that simply restates obligations created by a

regulation evinces that the government ‘never intended the language . . . to be more than a

mere expression of intention, as opposed to words of commitment.’” Chattler v. United States,

632 F.3d 1324, 1331 (Fed. Cir. 2011) (quoting Floyd v. United States, 26 Cl. Ct. 889, 891 (1992), aff'd

on other grounds, 996 F.2d 1237 (Fed. Cir. 1993), cert. denied, 510 U.S. 925 (1993)). Thus, “‘[w]here

rights and obligations are prescribed by statute and regulations rather than determined through

the mechanics of a bilateral exchange, there is no contract in the usual sense of that word.’”

Chattler, 632 F.3d at 1331 (quoting Clawson v. United States, 24 Cl. Ct. 366, 370 (1991)).

13

An implied-in-fact contract theory is sufficient “to set forth a basis for subject-matter

jurisdiction” where a plaintiff makes “a non-frivolous assertion of [such] an implied contract

with the United States[.]” City of Cincinnati, 153 F.3d at 1377. Notably, “the requirements for an

implied-in-fact contract are the same as for an express contract; only the nature of the evidence

differs. An implied-in-fact contract is one founded upon a meeting of minds and ‘is inferred, as

a fact, from the conduct of the parties showing, in the light of the surrounding circumstances,

their tacit understanding.’” Hanlin v. United States, 316 F.3d 1325, 1328 (Fed. Cir. 2003) (quoting

Balt. & Ohio R.R. v. United States, 261 U.S. 592, 597 (1923)). Thus, to demonstrate that an express

or implied-in-fact contract with the government was formed, at the very least, the parties’

conduct must allow for the inference that there was “(1) mutuality of intent; (2) consideration;

(3) lack of ambiguity in the offer and acceptance; and (4) actual authority to bind the

government in contract on the part of the government official whose conduct is relied upon.”

First Mortg. Corp. v. United States, 142 Fed. Cl. 164, 170 (2019) (citing Kam-Almaz v. United States,

682 F.3d 1364, 1368 (Fed. Cir. 2012)). Although those elements implicate the merits of a claim,

they are informative regarding the facts Mr. Perry’s Complaint must plead to state a claim

within this Court’s jurisdiction.

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Furthermore, any attempt to construe the relationship between the USPTO and a

patent applicant as contractual is legally implausible on its face. See Constant v. United

States, 861 F.2d 728, 1988 WL 94630, at *1 (Fed. Cir. Sep. 13, 1988) (unpublished)

(emphasizing that “the issuance of a patent by the [USPTO] does not create a

contractual relationship between the PTO and the patentee[,]”and the “patenting

process is not a contracting process”); Arunachalam v. Pazuniak, 2018 WL 4603265, at *5

(D. Del. Sept. 25, 2018) (holding that patent holder did “not have a contract with the

USPTO”); see also Ibrahim, 799 F. App’x at 867 (affirming dismissal for lack of subject-

matter jurisdiction where plaintiff did not “plausibly allege the existence of a contract”).

Indeed, even with respect to the patent process itself, the Federal Circuit has held that,

“[f]ar from being the inception of vested patent rights, submission of a patent

application is the inception of an uncertain process that might possibly result in vested

rights at some later time.” Grover v. United States, 73 F. App’x 401, 405 (Fed. Cir. 2003).

Accordingly, the Court holds that Mr. Perry’s Complaint, at best, alleges an

implied-in-law contract. See Folden v. United States, 56 Fed. Cl. 43, 55 (2003) (agreeing

with the government that “’[t]he FCC’s simple receipt of plaintiffs’ license applications

did not create contracts’” and that “the FCC regulations, upon which the plaintiffs base

their contract claim, do not indicate an intent upon the part of the FCC to be

contractually bound”), aff’d, 379 F.3d 1344 (Fed. Cir. 2004); Baker v. United States, 50 Fed.

Cl. 483, 495 (2001) (observing that although federal regulations which govern Farm

Services Agency applications “cast [such applications] in more mandatory terms” they

nonetheless “lack definiteness and a manifestation of the Government’s intent to enter

into a contract upon receipt of an application”). 14 But, as explained supra, a cause of

action predicated upon such a contract does not fall within this Court’s jurisdiction. See

Engage Learning, 660 F.3d at 1353 (holding that “jurisdiction under [the Tucker Act]

requires” that plaintiff plead sufficient facts to establish the existence of a contract with

the government); see also Crow Creek Sioux Tribe, 900 F.3d at 1354–55 (emphasizing that

“‘[t]hreadbare recitals of the elements . . . supported by mere conclusory statements, do

not suffice’” to establish jurisdiction (quoting Iqbal, 556 U.S. at 678)). 15 To employ the

14

To the extent Mr. Perry advances a contract theory in this case, it is limited to his patent

applications. The Court cannot discern any other facts that plausibly could be read to allege a

contract claim under the Tucker Act. Mr. Perry’s repeated references to the language of the

Tucker Act, see, e.g., Compl. ¶ 21, are merely “pretextual” and do not suffice to establish this

Court’s subject-matter jurisdiction. Lewis, 70 F.3d at 603.

15This issue again implicates the difficulty in drawing a sharp distinction between dismissals

pursuant to RCFC 12(b)(1) and RCFC 12(b)(6). While this Court lacks jurisdiction over factual

allegations that amount to nothing more than an implied-in-law contract, a contract that is

found to be void as a matter of law properly may be dismissed for failure to state a claim. For

example, in Gould, the Federal Circuit found that plaintiff alleged an express contact within this

Court’s jurisdiction, but that plaintiff’s allegation of illegality voided the express contract. 67

F.3d at 929-30. But where, as here, allegations cannot possibly amount to an implied-in-fact

contract within our jurisdiction, dismissal pursuant to RCFC 12(b)(1) is warranted.

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Seventh Circuit’s metaphor, Mr. Perry’s alleged data sheets and patent applications are

no more contracts than bananas are securities. Carr, 591 F.3d at 917.

In the alternative, the Court holds that Mr. Perry’s contentions rooted in the

existence of a contract with the United States, whether based on his USPTO applications

or otherwise, fail to state a claim as a matter of law upon which relief can be granted.

See eVideo Owners, 126 Fed. Cl. at 104 n.4 (holding that in addition to the Court’s

dismissing plaintiffs’ implied-in-law contract claim pursuant to RCFC 12(b)(1), “the

Court must also dismiss plaintiffs’ breach of contract claims for failure to state a claim

pursuant to RCFC 12(b)(6)[]”). For a complaint to survive a motion to dismiss pursuant

to RCFC 12(b)(6), a complaint must contain plausible factual assertions which, if true,

would entitle the plaintiff to the claimed relief as a matter of law. See Welty v. United

States, 926 F.3d 1319, 1323 (Fed. Cir. 2019) (quoting Lindsay v. United States, 295 F.3d

1252, 1257 (Fed. Cir. 2002), for the proposition that “’[a] motion to dismiss . . . for

failure to state a claim upon which relief can be granted is appropriate when the facts

asserted by the claimant do not entitle him to a legal remedy[]’”). In other words, “a

complaint must allege facts ‘plausibly suggesting (not merely consistent with)’ a

showing of entitlement to relief.” Acceptance Ins. Cos., Inc. v. United States, 583 F.3d 849,

853 (Fed. Cir. 2009) (quoting Twombly, 550 U.S. at 557). Thus, “[t]o state a claim upon

which relief can be granted, [plaintiff] must allege either an express or an implied-in-

fact contract, and the breach of that contract.” Trauma Serv. Grp., 104 F.3d at 1325.

Put differently, pursuant to RCFC 12(b)(6), a plaintiff must plead facts

demonstrating all of the elements of a contract with the government — namely, “a

mutual intent to contract, including an offer, an acceptance, and consideration”

exchanged with a government official having actual authority to contract. Id. at 1326;

see Monarch Assur. P.L.C. v. United States, 244 F.3d 1356, 1360 (Fed. Cir. 2001) (“[T]he law

requires that a Government agent who purports to enter into or ratify a contractual

agreement that is to bind the United States have actual authority to do so.”).

Neither Mr. Perry’s Complaint, nor his response in opposition to the

government’s motion — were the Court to consider new allegations in the latter —

assert any facts sufficient to demonstrate that Mr. Perry and the United States had a

mutual intent to contract, that the parties exchanged any offer and acceptance, or that

there was any government official with actual authority who bound the United States in

contract to Mr. Perry. Again, Mr. Perry’s Complaint, at most, states a claim for the

breach of an implied-in-law contract; but, as explained supra, that is a claim over which

this Court does not have jurisdiction. See Trauma Serv. Grp., 104 F.3d at 1328 (where

plaintiff’s complaint alleged only an implied-in-law contract and did not “show the

existence of an express or an implied-in-fact contract, and the breach thereof, the Court

of Federal Claims properly dismissed for failure to state a claim under RCFC

12(b)[(6)]”); XP Vehicles, Inc. v. United States, 121 Fed. Cl. 770, 793 (2015).

- 19 -

Where, as here, Mr. Perry has alleged nothing more than an implied-in-law

contract with the United States — and has failed to allege any facts to support an

express or implied-in-fact contract with the government — his Complaint fails to

“elevate a claim for relief to the realm of plausibility” as required by RCFC 12(b)(6).

Laguna Hermosa, 671 F.3d at 1288. Accordingly, even assuming this Court had

jurisdiction to consider Mr. Perry’s purported contract claims — whether based upon

his submission of USPTO applications, or otherwise — the Court holds that such claims

should be dismissed on the merits pursuant to RCFC 12(b)(6).

C. Mr. Perry’s Complaint Does Not Assert A Takings Claim Within This

Court’s Jurisdiction Or Fails To State Such A Claim As A Matter Of Law

Upon Which Relief Can Be Granted

Although the government seeks dismissal of Mr. Perry’s alleged takings claim

pursuant to RCFC 12(b)(6), see Def. Mot. at 1, the Court questions whether his

Complaint, while lengthy, contains sufficient non-conclusory, factual allegations so as to

vest this Court with jurisdiction. 16 Monzo, 2013 WL 6235608, at *3 (holding that even if a

complaint alleges the violation “a statute or regulation [which] does mandate the

payment of money[,]” in order “to trigger jurisdiction . . . plaintiff [must] show[] that he

is within the class of plaintiffs entitled to recover under the money-mandating source”)

(quotations and citation omitted); see Crow Creek Sioux Tribe, 900 F.3d at 1354–55.

To be clear, once again, Mr. Perry cannot invoke this Court’s jurisdiction to

decide his grievances merely via repetitive references to the Fifth Amendment or the

magic word “taking.” See Barksdale v. United States, 582 F. App’x 890, 892 (Fed. Cir.

2014) (per curiam) (“Despite the use of the word ’taking,’ these are claims under the

First and Fourteenth Amendment, which the Claims Court properly ruled [were]

outside its jurisdiction.”). Admittedly, however, Mr. Perry’s putative takings claim

presents a closer call as to whether Mr. Perry’s Complaint should be dismissed on

RCFC 12(b)(1) grounds or pursuant to RCFC 12(b)(6) for the simple reason that this

Court generally does possess jurisdiction over takings claims pursuant to the Tucker Act.

The thrust of Mr. Perry’s Complaint appears to be that, in general, “applications

for patents shall be kept in confidence by the Patent and Trademark Office[,]” but that

Mr. Perry’s was not. 35 U.S.C. § 122(a); see also Hyatt v. U.S. Patent & Trademark Office,

16See RCFC 12(h)(3). “[F]ederal courts have an independent obligation to ensure that they do

not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional

questions that the parties either overlook or elect not to press.” Henderson ex rel. Henderson v.

Shinseki, 562 U.S. 428, 434 (2011); see Ibrahim, 799 F. App’x at 867 (“Establishing subject matter

jurisdiction is a threshold issue, Dow Jones & Co. v. Ablaise Ltd., 606 F.3d 1338, 1348 (Fed. Cir.

2010), and every federal court has an ‘independent obligation to determine whether subject

matter jurisdiction exists, even in the absence of a challenge from any party.’ Arbaugh v. Y & H

Corp., 546 U.S. 500, 514, 126 S. Ct. 1235, 163 L.Ed.2d 1097 (2006).”).

- 20 -

797 F.3d 1374, 1380 (Fed. Cir. 2015) (“The structure of § 122(a) reflects Congress’ intent

to protect the confidentiality of patent applications.”); Compl. ¶¶ 45-58. Even assuming

that the USPTO did not comply with that statutory provision, such an alleged violation

does not constitute a taking within this Court’s jurisdiction.

The Takings Clause of the Fifth Amendment provides that private property shall

not “be taken for public use, without just compensation.” U.S. Const. amend. V. While

“[i]t is undisputed that the Takings Clause of the Fifth Amendment is a money-

mandating source [of law] for purposes of Tucker Act jurisdiction,” Jan’s Helicopter, 525

F.3d at 1309, a plaintiff seeking compensation for a taking “must concede the validity of

the government action which is the basis of the . . . claim.” Mahoney v. United States, 129

Fed. Cl. 589, 593 (2016) (quoting Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 802 (Fed.

Cir. 1993)); see also Moody, 931 F.3d at 1142 (“A takings claim cannot be found on the

theory that the United States has taken unlawful action.”); Gahagan v. United States, 72

Fed. Cl. 157, 161-62 (2006) (citing Fla. Rock Indus., Inc. v. United States, 791 F.2d 893, 898

(Fed. Cir. 1986), for the proposition that a plaintiff’s insistence that the government’s

alleged taking was “unlawful . . . places the claim outside a takings context”); Acadia

Tech., Inc. v. United States, 458 F.3d 1327, 1330 (Fed. Cir. 2006) (explaining that a “takings

claim” pursuant to the Tucker Act is “separate from a challenge to the lawfulness of the

government’s conduct”). Indeed, Mr. Perry himself acknowledges this fundamental

proposition of law. See Compl. ¶ 26.

Nevertheless, Mr. Perry maintains — as reflected in the countless papers that he

has sought to file throughout the pendency of his Complaint — that the USPTO acted in

violation of 35 U.S.C. § 122 when the USPTO published his patent application on its

website. See Pl. Resp. at 49 (claiming that the USPTO “seized Mr. Perry’s patent

application, without permission”); see also id. ¶ 46 (characterizing the USPTO’s actions

as the “impermissible posting and sale of Mr. Perry’s . . . patent application”). Because

Mr. Perry is challenging the lawfulness of the government’s action, and he does not

“concede the validity of the government action,” Mr. Perry’s alleged takings claim is

one which falls outside of this Court’s jurisdiction and therefore must be dismissed.

Tabb Lakes, 10 F.3d at 802; Milgroom v. United States, 651 F. App’x 1001, 1005 (Fed. Cir.

2016) (explaining that, “[w]hile the Claims Court does possess jurisdiction to consider

certain takings claims under the Fifth Amendment, it may only exercise that jurisdiction

when the claimant ‘concede[s] the validity of the government action which is the basis

of the taking claim to bring suit under the Tucker Act’” (quoting Tabb Lakes, 10 F.3d at

802–03)); Whiteford v. United States, -- Fed. Cl. --, 2020 WL 1845314, at *6 n.3 (Fed. Cl.

Apr. 10, 2020) (dismissing takings claims based upon unlawful agency action for lack of

subject-matter jurisdiction); see Straw v. United States, 2017 WL 6045984 (Fed. Cl. Dec. 6,

2017) (citing Milgroom with approval).

This requirement that a plaintiff seeking to allege a takings claim before this

Court “concede the validity of the government action which is the basis of the . . .

claim[,]” Mahoney, 129 Fed. Cl. at 593, also necessarily implies that any alleged

- 21 -

impropriety in the USPTO’s conduct cannot itself be the basis for Mr. Perry’s takings

claim. Hyatt, 797 F.3d at 1383 (holding that APA applies to court’s review of whether

USPTO properly “disclos[ed] . . . otherwise-confidential information”). 17

Moreover, neither Mr. Perry’s factual averments with respect to the USPTO’s

alleged violation of 35 U.S.C. § 122(a), nor any other contentions in his Complaint,

appear to satisfy the requirements to support a takings claim within this Court’s

subject-matter jurisdiction. For example, Mr. Perry’s allegations do not identify what

property right, if any, was taken by the government or how the USPTO indeed has

“taken” any such property. See, e.g., Knick v. Twp. of Scott, Pennsylvania, 139 S. Ct. 2162,

2170 (2019) (observing that a takings claim under the Tucker Act lies when “the

government takes [plaintiff’s] property without paying for it”). Indeed, in the most

basic sense of the word, a “taking” for which plaintiff seeks compensation before this

Court could not have possibly occurred if none of plaintiff’s property was, in fact,

“taken.” Air Pegasus of D.C., Inc. v. United States, 424 F.3d 1206, 1215 (Fed. Cir. 2005)

(“As an initial matter, a claimant seeking compensation from the government for an

alleged taking of private property must, at a minimum, assert that its property interest

was actually taken by the government action.” (emphasis added)).

In this case, Mr. Perry’s allegations center around one of the patent applications

he submitted to the USPTO. Compl. ¶¶ 308-312. Yet, at no point does Mr. Perry’s

Complaint “suggest that [the USPTO] has claimed a permanent or even temporary

ownership interest” in his patent application — or otherwise took his intellectual

property — for the government’s benefit. Drury v. United States, 52 Fed. Cl. 402, 404

(2002); see Ridge Line, Inc. v. United States, 346 F.3d 1346, 1356 (Fed. Cir. 2003) (noting

that “an invasion must appropriate a benefit to the government at the expense of the

property owner”); Big Oak Farms, Inc. v. United States, 105 Fed. Cl. 48, 58 (2012) (rejecting

takings claim in the absence of “an appropriation of property for the government’s

benefit”). Even allegations that the United States infringed a patent that already has

been granted — claims which are within this Court’s subject-matter jurisdiction —

cannot be pleaded as takings claims. Golden v. United States, 955 F.3d 981, 987-88 (Fed.

Cir. 2020) (citing Schillinger v. United States, 155 U.S. 163, 168-69 (1894), for the

17Notwithstanding Mr. Perry’s use of takings language, his Complaint also appears to suggest

that the USPTO’s publication of Mr. Perry’s patent application provides a basis for relief

separate and apart from his takings claim. In particular, he asserts that the government injured

him in “[u]nlawfully [p]ublishing [a]nd [t]aking [w]ith [r]espect [t]o [a]pplication No.

[]15/382,598[.]” Compl. at 87 (¶¶ 308-312). But even if this claim were valid, Mr. Perry’s

remedy lies elsewhere. See, e.g., Diamond v. U.S. Agency for International Dev., 108 F.3d 312, 315

(Fed. Cir. 1997) (noting that “[w]hile an argument could be made” that plaintiff’s claims had

merit, the “remedy, if any, lies in the district court”); cf. St. Bernard Parrish, 887 F.3d at 1362

(observing that even if the government’s inactions were improper the “remedy for these

inactions, if any, lies in tort[,]” and thus is outside the Court of Federal Claims’ jurisdiction).

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longstanding proposition that even patent infringement “claims sound in tort” and,

thus, “are to be pursued exclusively under 28 U.S.C. § 1498” and not as takings claims).

While “[t]he multipurpose nature of [a] complaint d[oes] not deprive the Court

of Federal Claims of jurisdiction to entertain the takings claim alleged therein[,]” El-

Shifa Pharm. Indus. Co. v. United States, 378 F.3d 1346, 1353–54 (Fed. Cir. 2004), the Court

must still “‘look to the true nature of the action’” to determine whether jurisdiction

exists. Nat’l Ctr. for Mfg. Scis. v. United States, 114 F.3d 196, 199 (Fed. Cir. 1997) (quoting

Katz v. Cisneros, 16 F.3d 1204, 1207 (Fed. Cir. 1994)); see Pines Residential Treatment Ctr.,

Inc. v. United States, 444 F.3d 1379, 1380 (Fed. Cir. 2006) (“Regardless of a party’s

characterization of its claim, we look to the true nature of the action in determining the

existence or not of jurisdiction.”).

When looking to the true nature of Mr. Perry’s Complaint, the mere fact that he

uses the word “taking” is insufficient to support a claim within this Court’s jurisdiction.

Barksdale, 582 F. App’x at 892 (affirming dismissal of takings claim because plaintiff’s

“use of the word ‘taking,’” did not establish the Claims Court’s jurisdiction). Instead,

Mr. Perry must allege facts that support the existence of a compensable property interest

that may serve as the basis for a takings claim within this Court’s jurisdiction. See Vane

Minerals (US), LLC v. United States, 116 Fed. Cl. 48, 62 (2014) (“The absence of a

compensable property interest has been recognized as grounds for dismissal under

RCFC 12(b)(1)[.]”); Hafen v. United States, 30 Fed. Cl. 470, 474 (1994) (dismissing takings

claim premised on unpatented mining claims for lack of subject-matter jurisdiction,

because “plaintiff ha[d] no valid existing right” in the claims), aff’d, 47 F.3d 1183 (Fed.

Cir. 1995); Seaboard Lumber Co. v. United States, 19 Cl. Ct. 310, 319 (1990) (citing Aulston v.

United States, 823 F.2d 510 (Fed. Cir. 1987), and Freese v. United States, 221 Ct. Cl. 963,

964–65 (1979), for the proposition that “[t]his court is without jurisdiction to determine

whether a taking has occurred until the plaintiff establishes a legally recognized

property interest in the timber[]”).

Because Mr. Perry has failed to allege any facts to support a takings claim within

this Court’s subject-matter jurisdiction — aside from the conclusory references to a

taking and unidentified property rights — his claim likely fails to satisfy the Twombly

and Iqbal standards for the purposes of RCFC 12(b)(1). Crow Creek Sioux Tribe, 900 F.3d

at 1354–55 (citing Twombly, 550 U.S. at 570 and quoting Iqbal, 556 U.S. at 678, for the

proposition that “threadbare recitals of the elements of [a claim], supported by mere

conclusory statements, do not suffice” to establish jurisdiction); see Moden, 404 F.3d at

1341 (emphasizing that dismissal for lack of subject-matter jurisdiction is appropriate

where the allegations contained in the complaint are “foreclosed by prior decisions”).

In sum, to the extent that Mr. Perry challenges the USPTO’s conduct as unlawful, that

claim belongs in district court; and, insofar as he seeks damages for alleged injuries

arising from the USPTO’s actions, such a claim sounds in tort. In either case, this Court

likely lacks jurisdiction to consider the claim that the USPTO improperly published Mr.

Perry’s patent application. See Golden, 955 F.3d at 987-88.

- 23 -

Even if this Court has jurisdiction over Mr. Perry’s takings claim, however, the

government is correct that his claim nevertheless must be dismissed pursuant to RCFC

12(b)(6). Indian Harbor Ins. v. United States, 704 F.3d 949, 954 (Fed. Cir. 2013) (“A

complaint must be dismissed under Rule 12(b)(6) when the facts asserted do not give

rise to a legal remedy.”). Specifically, to state a takings claim upon which relief can be

granted, a plaintiff “must demonstrate . . . a property interest to assert and that the

government physically or by regulation infringed on that interest[.]” Craig Patty &

Craig Thomas Expeditors, LLC v. United States, 136 Fed. Cl. 211, 214 (2018). Mr. Perry’s

Complaint does not identify a recognized property interest or demonstrate that the

government somehow interfered with the use of his property, intellectual or otherwise.

Craig Patty & Craig Thomas Expeditors, 136 Fed. Cl. at 214; see Golden, 955 F.3d at 987-88

(citing Schillinger, 155 U.S. at 168-69, for the proposition that patent infringement

“claims sound in tort” when not based upon 28 U.S.C. § 1498 and are not takings

claims); Drury, 52 Fed. Cl. at 404 (“None of [plaintiff’s tort-based] allegations rise[] to

the magnitude necessary to support a takings claim.”); cf. Big Oak Farms, 105 Fed. Cl. at

58 (rejecting takings claim in the absence of “an appropriation of property for the

government’s benefit”). Instead, in support of Mr. Perry’s claim that the USPTO’s

publication of his patent applications amounted to a taking, his Complaint simply

recites “[c]onclusory allegations of law and unwarranted inferences of fact” — but, such

assertions “do not suffice to support [his] claim.” Bradley, 136 F.3d 1322.

Simply put, Mr. Perry’s Complaint does not contain any plausible factual

allegations which, even if true, demonstrate that the government somehow interfered

with the use of his property, intellectual or otherwise. See Laguna Hermosa, 671 F.3d at

1288 (plaintiff must “elevate a claim for relief to the realm of plausibility” pursuant to

RCFC 12(b)(6)). Moreover, particularly in the intellectual property context, this Court

has held that, where a complaint suggests that “the government has done nothing to

affirmatively proscribe plaintiffs’ use of their property[,]” there can be no taking as a

matter of law. Energy Sec. of Am. Corp., 86 Fed. Cl. at 565 (holding that where

“[p]laintiffs do not allege that DOE assumed title to the patents, took the right to

exclude others from the patents, or infringed upon the right to sell or otherwise use the

patents[,]”plaintiffs’ complaint should be dismissed pursuant to RCFC 12(b)(6)); cf.

Huntleigh USA Corp. v. United States, 75 Fed. Cl. 642, 646 (2007) (concluding after trial

that “Huntleigh did not possess a compensable property interest under the Fifth

Amendment, and the Court's analysis ends there[,]” as a matter of law), aff’d, 525 F.3d

1370, 1381 (Fed. Cir. 2008) (rejecting takings claim where “the government has not

appropriated for its own use any property owned by Huntleigh”). Thus, for the very

same reasons the Court holds that it likely lacks jurisdiction over Mr. Perry’s takings

claim, his Complaint must be dismissed, in any event, pursuant to RCFC 12(b)(6) for

failing to state a takings claim, as a matter of law, upon which relief can be granted. See

Vane Minerals, 116 Fed. Cl. at 62 (“The absence of a compensable property interest has

been recognized as grounds for dismissal under RCFC 12(b)(1) and 12(b)(6).”).

Although the Court remains unconvinced that Mr. Perry has met his burden to

- 24 -

demonstrate that his putative takings claim is within our Court’s jurisdiction, the Court

nevertheless concludes that dismissal pursuant to RCFC 12(b)(6) is warranted (and is

the preferred approach, as implicitly articulated in the government’s motion). See also

Carter, 794 F.3d at 807; Carr, 591 F.3d at 917.

D. Mr. Perry’s Complaint Does Not Assert An Illegal Exaction Claim Within

This Court’s Jurisdiction Or Fails To State Such A Claim As A Matter Of

Law Upon Which Relief Can Be Granted

Construed liberally, Mr. Perry’s final attempt to invoke this Court’s jurisdiction

— which the government’s pending motion to dismiss does not address — appears to

be a claim for an illegal exaction. The government’s omission, in the Court’s view, is

quite understandable given how confusing, duplicative, and voluminous the Court

finds Mr. Perry’s Complaint. Nevertheless, Mr. Perry alleges that “[t]he USPTO’s

assessment, acceptance, and retention of [patent application] fees was . . . not in

accordance with law and also contrary to constitutional right, power, privilege, or

immunity, and was inequitable.” Compl. ¶ 327. Similar to Mr. Perry’s takings claim,

this Court generally has jurisdiction over “illegal exaction” claims. See Eastport S.S. Corp.

v. United States, 178 Ct. Cl. 599, 605-06 (1967) (describing illegal exaction claims as those

alleging that “‘the Government has the citizen's money in its pocket’” (quoting Clapp v.

United States, 127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954))); see also Aerolineas Argentinas

v. United States, 77 F.3d 1564, 1572 (Fed. Cir. 1996) (“Tucker Act claims may be made for

recovery of monies that the government has required to be paid contrary to law.”). 18

Mr. Perry’s broad allegations, however, necessarily implicate two subsidiary

questions: (1) whether the USPTO’s allegedly unlawful assessment or retention of

certain fees may serve as the predicate for an illegal exaction claim within this Court’s

jurisdiction; and (2) whether Mr. Perry’s Complaint contains sufficient facts to state a

claim within this Court’s jurisdiction, and upon which relief can be granted.

1. Illegal Exaction And Money-Mandating Claims Are Distinct Causes of

Action

An illegal exaction claim generally involves money “improperly paid, exacted, or

taken from the claimant[.]” Eastport S.S. Corp., 372 F.2d at 1007. As noted above, the

Federal Circuit’s predecessor court — the appellate division of the United States Court

of Claims — long ago characterized an illegal exaction as a situation in which “‘the

Government has the citizen’s money in its pocket. . . .’” Eastport S.S. Corp., 372 F.2d at

1008 (quoting Clapp, 117 F. Supp. at 580). In an illegal exaction case, in contrast to other

actions for money damages, jurisdiction exists under the Tucker Act “even when the

Constitutional provision allegedly violated does not contain compensation mandating

language.” Casa de Cambio Comdiv S.A. de C.V. v. United States, 48 Fed. Cl. 137, 143-

18 See generally Renée Burbank, Illegal Exactions, 87 Tenn. L. Rev. 315 (2020).

- 25 -

48 (2000) (citing Bowman v. United States, 35 Fed. Cl. 397, 401 (1996), and holding “that

this court has jurisdiction to consider whether the alleged violation of the regulations

led to an illegal exaction violative of the Due Process Clause, despite the fact that clause

does not contain compensation mandating language”), aff’d, 291 F.3d 1356, 1363 (Fed.

Cir. 2002) (“Our cases have established that there is no jurisdiction under the Tucker

Act over a Due Process claim unless it constitutes an illegal exaction.” (emphasis added)

(citing Murray v. United States, 817 F.2d 1580, 1583 (Fed. Cir. 1987), cert. denied, 489 U.S.

1055 (1989), and Inupiat Comy. of the Arctic Slope v. United States, 230 Ct. Cl. 647, 662, cert.

denied, 459 U.S. 969 (1982)). 19 Put differently, an illegal exaction claim under the Tucker

Act is “a non-tortious, non-contractual claim for money damages.” Auto Club Ins. Ass’n

v. United States, 103 Fed. Cl. 268, 273-74 (2012).

Notwithstanding the illegal exaction claim’s venerable pedigree, a wrinkle in the

fabric of this Court’s Tucker Act jurisdiction is increasingly apparent, with many

decisions suggesting or even holding that an illegal exaction claim is not an

independent cause of action, but rather must itself be premised upon a money-

mandating provision of law. 20 With regard to USPTO fees, in particular, at least one

decision from this Court has held that we lack “jurisdiction to entertain . . . illegal

exaction claim[s] related to official fees because the USPTO’s notice statute and

implementing regulation do not provide for the return of money unlawfully exacted.”

eVideo Owners, 126 Fed. Cl. at 105 (citing Norman v. United States, 429 F.3d 1081, 1095

(Fed. Cir. 2005), for the proposition that “a claimant must demonstrate that the statute

or provision causing the exaction itself provides . . . that ‘the remedy for its violation

entails a return of money unlawfully exacted’” (additional citations omitted)).

Although the undersigned certainly concurs with the result in eVideo Owners —

indeed, it was affirmed on appeal to the Federal Circuit 21 — the instant decision does

not dismiss Mr. Perry’s similar claims on such grounds, but rather addresses at greater

length the nature of the illegal exaction claim, including: (1) whether such a cause of

action may provide a jurisdictional foothold for Mr. Perry’s Complaint; and (2) whether

Mr. Perry’s Complaint contains sufficient facts to support such an illegal exaction claim

here, or whether it must be dismissed pursuant to RCFC 12(b)(1) and RCFC 12(b)(6).

19See also Testan, 424 U.S. at 401 (holding that a money-mandating provision of law is required

“[w]here the United States is the defendant and the plaintiff is not suing for money improperly

exacted or retained”).

20Burbank, 87 Tenn. L. Rev. at 345 (explaining that “[i]n the past decade, this framework is

almost universal among the courts that categorize the claim at all[,]” but criticizing the

approach as “ahistorical”).

21See eVideo Owners v. United States, 680 F. App’x 1004, 1004 (Fed. Cir. 2017) (unpublished per

curiam decision ordering “Appellants to show cause . . . why sanctions should not be imposed

for a frivolous appeal” and declining to address any of the issues in the case).

- 26 -

In resolving whether this Court generally has jurisdiction to consider a claim that

a government agency improperly or unlawfully collected or retained fees — i.e., even in

the absence of a money-mandating provision of law — this Court begins once again

with the plain language of the Tucker Act:

The United States Court of Federal Claims shall have

jurisdiction to render judgment upon any claim against the

United States founded either [1] upon the Constitution, or any

Act of Congress or any regulation of an executive department,

or [2] upon any express or implied contract with the United

States, or [3] for liquidated or unliquidated damages in cases

not sounding in tort.

28 U.S.C. 1491(a)(1) (emphasis added).

The first category — claims founded upon a constitutional, statutory, or

regulatory provision — includes money-mandating claims, such as takings claims.

Maine Community Health Options 140 S. Ct. at 1328. The second category, by its explicit

terms, covers government contract claims (i.e., express and implied-in-fact contracts, but

not implied-in-law contracts). Id. at 1327 (citing 28 U.S.C. § 1491(a)(1)); Hercules, 516

U.S. at 423 (“[Tucker Act] jurisdiction [does not] extend[] . . . to claims on contracts

implied in law[]”); City of Cincinnati, 153 F.3d at 1377. The remaining, third category —

“liquidated or unliquidated damages in cases not sounding in tort” — would seem to

include illegal exactions as an independent cause of action pursuant to the Tucker Act.22

If that is not the case, “[t]his [latter] category is basically a null set in modern Tucker Act

jurisdiction, which violates the statutory interpretation canon that every clause should

have meaning.” 23 Whether or not the Federal Circuit (or the Supreme Court) one day

may agree explicitly with that proposed textual source for an illegal action Tucker Act

22 Auto Club, 103 Fed. Cl. at 273 (“This language enables suit even in the absence of a money-

mandating statute or an express or implied contract….” (discussing Pan Am. World Airways, Inc.

v. United States, 122 F. Supp. 682, 683–84 (Ct. Cl. 1954)); Burbank, 87 Tenn. L. Rev. at 350

(arguing that “divorcing illegal exaction claims from requiring either a money-mandating

statute or constitutional provision would also hew more closely to the natural reading of the

Tucker Act waiver of sovereign immunity, which lists three categories of claims that can be

brought against the United States”).

23Burbank, 87 Tenn. L. Rev. at 349 (discussing the views of Judge Eric Bruggink in A Modest

Proposal, 28 Pub. Cont. L.J. 529, 535 (1998)); Burbank, id. (“This requirement for a second,

statutory money-mandating source of jurisdiction eviscerates illegal exactions as due process

claims as a practical matter. Typically, if a statute is money-mandating, then its violation

requires money damages as a remedy, without the need to frame the claim as an illegal

exaction. But where no statutory language proscribes the government’s conduct or implies a

monetary damages claim, plaintiffs [would be] left with no effective means of claiming damages

against the government.”).

- 27 -

claim, the Federal Circuit repeatedly has distinguished between money-mandating and

illegal exaction claims as distinct categories of Tucker Act causes of action.

For example, in Ontario Power Generation, Inc. v. United States, the Federal Circuit

explained that “[t]he underlying monetary claims” under the Tucker Act “are of three

types.” 369 F.3d 1298, 1301 (Fed. Cir. 2004) (emphasis added) (citing Testan, 424 U.S. at

400 (1976)). In particular, Ontario Power identified the following three distinct types of

monetary claims: (1) “claims alleging the existence of a contract between plaintiff and

the government”; (2) “illegal exaction claims”; and (3) “claims where ‘money has not

been paid but the plaintiff asserts that he is nevertheless entitled to a payment from the

treasury.’” 369 F.3d at 1301 (quoting Eastport S.S., 372 F.2d at 1007).

Similarly, in Roth, the Federal Circuit delineated between three types of Tucker

Act claims, as follows:

The Tucker Act authorizes certain actions for monetary relief

against the United States to be brought in the Court of Federal

Claims. For actions [1] pursuant to contracts with the United

States, actions to [2] recover illegal exactions of money by the

United States, and actions [3] brought pursuant to money-

mandating statutes, regulations, executive orders, or

constitutional provisions, the Tucker Act waives the

sovereign immunity of the United States.

378 F.3d at 1384; see also Martinez, 333 F.3d at 1302-03 (“The Tucker Act authorizes

certain actions for monetary relief against the United States to be brought in the Court

of Federal Claims. The actions for which the Tucker Act waives sovereign immunity

are 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

constitutional provisions, statutes, regulations, or executive orders.” (emphasis added));

Eastport S.S. Corp., 372 F.2d at 1007-08.

In Aerolineas Argentinas v. United States, the Federal Circuit could not have been

more clear: “Tucker Act claims may be made for recovery of monies that the

government has required to be paid contrary to law.” 77 F.3d 1564, 1572 (Fed. Cir.

1996); id. at 1573 (citing cases and holding that “[t]he Tucker Act provides jurisdiction to

recover an illegal exaction by government officials when the exaction is based on an

asserted statutory power”). The Federal Circuit further explained that “[t]he amount

exacted and paid may be recovered whether the money was paid directly to the

government, or was paid to others at the direction of the government to meet a

governmental obligation.” Id. at 1573-74 (“Suit can be maintained under the Tucker Act

for recovery of the money illegally required to be paid on behalf of the government.”).

After analyzing the statutes, regulations, and government-issued forms upon which

plaintiff relied in that case, the Federal Circuit “conclude[d] that the Tucker Act

- 28 -

provides jurisdiction to recover the sums exacted illegally by the Service due to its

misinterpretation or misapplication of statutes, regulations, or forms.” Id. at 1578.

More significantly, the Federal Circuit — not in dicta, but explicitly — held that “[i]n

view of this ruling, we need not discuss alternative theories of jurisdiction and recovery

offered by the airlines, including theories . . . [involving a] money-mandating statute[.]”

Id. (“We do not decide whether jurisdiction could also be based on any other premise.”).

Thus, the Federal Circuit already has held that a money-mandating provision of law

clearly is not a necessary prerequisite for an illegal exaction claim.

Senior Circuit Judge Nies’ concurring decision in Aerolineas Argentinas helpfully

provided a clear explanation of the difference between the “two forms” of a “Tucker

Act claim for damages against the United States based upon a statute” — that is, “a

claim under a money-mandating statute or a claim for money improperly exacted or

retained.” Aerolineas Argentinas, 77 F.3d at 1578-79 (Nies, J., concurring) (citing Testan,

424 U.S. at 401–402). According to Senior Judge Nies, “[a] claimant must rely either on

a statute that mandates payment of money from the government to the claimant or on

an illegal exaction, that is, a payment to the government by the claimant that is obtained

without statutory authority.” 77 F.3d at 1578-79 (citing Clapp, 117 F. Supp. at 576).

While the first type of claim “is founded on statutory authorization[,]” the latter type is

based upon “the absence of statutory authorization.” Id. In short, “[o]ne is the flip side

of the other.” Id.

This view of Federal Circuit precedent — i.e., that money-mandating and illegal

exaction claims are distinct Tucker Act claim categories — aligns with the Supreme

Court’s decision in Testan, which impliedly recognized the distinction between those

two types of claims. In Testan, the Supreme Court held that, “[w]here the United States

is the defendant and the plaintiff is not suing for money improperly exacted or retained,

the basis of the federal claim whether it be the Constitution, a statute, or a regulation

does not create a cause of action for money damages unless as the Court of Claims has

stated, that basis ‘in itself . . . can fairly be interpreted as mandating compensation by

the Federal Government for the damage sustained.’” Testan, 424 U.S. at 401–02

(emphasis added) (quoting Eastport S.S. Corp., 372 F.2d, at 1008, 1009). 24 Thus, the

Supreme Court recognized that this Court should only reach the question of whether a

putative money-mandating provision “can fairly be interpreted as mandating

compensation” where “the plaintiff is not suing for [an illegal exaction].” 424 U.S. at

401-02 (emphasis added). That language cannot be read except as delineating two

different categories of claims.

24See also Testan, 424 U.S. at 400-401 (“The respondents do not rest their claims upon a contract;

neither do they seek the return of money paid by them to the Government. It follows that the

asserted entitlement to money damages depends upon whether any federal statute ‘can fairly be

interpreted as mandating compensation by the Federal Government for the damage sustained.’”

(quoting Eastport S.S. Corp., 372 F.2d at 1009)).

- 29 -

Citing Testan, 424 U.S. at 401, the Federal Circuit’s decision in Casa de Cambio

affirmed the basic principle that an illegal exaction is its own, independent category of

Tucker Act claim. 291 F.3d at 1363. In Casa de Cambio, the issue of whether the plaintiff

had invoked a money-mandating provision of law was squarely before the Court of

Federal Claims. 48 Fed. Cl. at 140–41. The Court of Federal Claims dismissed plaintiff’s

putative money-mandating claims “for lack of jurisdiction,” concluding that “the

relevant [regulatory] provisions do not provide for monetary relief if violations

occur[.]” Id. On the other hand, the Court of Federal Claims dismissed plaintiff’s illegal

exaction claim for failure to state a claim, specifically concluding that “[i]n illegal

exaction cases, in contrast to other actions for money damages, jurisdiction exists even

when the Constitutional provision allegedly violated does not contain compensation

mandating language.” Id. at 143–44. On appeal, the Federal Circuit affirmed, but with

nary a mention of the lack of money-mandating provision. To the contrary, the Federal

Circuit recognized that its “cases have established that there is no jurisdiction under the

Tucker Act over a Due Process claim unless it constitutes an illegal exaction.” Casa de

Cambio, 291 F.3d at 1363 (emphasis added) (citing cases, including Testan). 25

As noted above, however, decisions of this Court increasingly have blurred the

clear, longstanding distinction between illegal exaction and money-mandating claims.

This (relatively) new line of authority appears to rely primarily upon the Federal

Circuit’s decision in Norman, 429 F.3d at 1095, for the proposition that “the Federal

Circuit has indicated that even in the case of an illegal exaction, a claimant must satisfy

the usual money-mandating requirement of the Tucker Act.” Starr Int’l Co. v. United

States, 106 Fed. Cl. 50, 61 (2012), vacated in part 856 F.3d 953 (Fed. Cir. 2017); see, e.g.,

Starr Int’l Co., Inc. v. United States, 856 F.3d at 978 (Wallach, J., concurring-in-part and

concurring-in-the-result) (highlighting the “apparent inconsistencies in [the Federal

Circuit’s] application of the money-mandating requirement to illegal exaction claims”

following Norman). 26

25 But see Burbank, 87 Tenn. L. Rev. at 349-352 (critiquing the “due process plus” theory of illegal

exactions and instead persuasively arguing for a conception of illegal exactions as “common

law claims” that “fit within its own category of wrongdoing: a uniquely sovereign act that

illegally disgorges property for the government’s benefit”).

26 See also Boeing Co. v. United States, 143 Fed. Cl. 298, 304 (2019) (“Discerning no conflict

between Norman and Aerolineas Argentinas, the court concludes that Boeing also must show that

41 U.S.C. § 1503(b) is money-mandating to establish jurisdiction for its illegal exaction claim.”);

eVideo Owners, 126 Fed. Cl. at 105 (citing Norman for the proposition that “a claimant must

demonstrate that the statute or provision causing the exaction itself provides ... that ‘the remedy

for its violation entails a return of money unlawfully exacted’” (additional citations omitted));

Kipple v. United States, 102 Fed. Cl. 773, 777 (2012) (discussing Norman with approval); Elliott v.

United States, 96 Fed. Cl. 666, 669 (2011) (citing Norman for the proposition that “[t]he illegal

exaction must be based on a statutory power”); Strategic Hous. Fin. Corp. of Travis Cnty. v. United

States, 86 Fed. Cl. 518, 529 n.23 (2009) (highlighting how Norman redefined what a plaintiff must

- 30 -

But there are good reasons to pause before adopting that language in Norman as

authoritative. First, Norman was decided by a three-judge panel; absent an en banc

decision, however, the court remains bound by earlier precedent, 27 discussed at length

above, distinguishing between illegal exaction and money-mandating claims. 28 Second,

the language in question from Norman is dicta, insofar as that case focused on a takings

claim and the money-mandating issue was not essential to the decision. 29 Third, and

most significantly, the questionable language in Norman — upon which the government

and decisions from this Court have relied to impose money-mandating requirements on

illegal exaction claims — is derived from the Federal Circuit’s decision in Cyprus Amax

Coal Co. v. United States. See Norman, 429 F.3d at 1095 (quoting Cyprus Amax Coal Co. v.

United States, 205 F.3d 1369, 1373 (Fed. Cir. 2000)). But, while Cyprus Amax merely used

the phrase “unlawfully exacted,” that case held that the U.S. Constitution’s Export

Clause, 30 “when fairly interpreted, affords an independent cause of action for monetary

remedies.” 31 That is the language of money-mandating cases, and, in that regard, the

do to “invoke Tucker Act jurisdiction over an illegal exaction claim”), aff’d in part, vacated in part,

608 F.3d 1317 (Fed. Cir. 2010); Powers v. United States, 2015 WL 4931482, at *9 (Fed. Cl. Aug. 18,

2015) (citing Norman for the assertion that “[b]ecause the court has held that the debt collection

statutes upon which plaintiff relies are not money-mandating, plaintiff has failed to state an

illegal exaction claim upon which relief can be granted”); but see Sin Hang Lee v. United States,

142 Fed. Cl. 722, 727–28 (2019) (citing Norman, but explaining that “to pursue a substantive right

against the United States under the Tucker Act, a plaintiff must identify and plead [1] a money-

mandating constitutional provision, statute, or regulation; [2] an express or implied contract

with the United States; or [3] an illegal exaction of money by the United States”).

27

In re Rudy, 956 F.3d 1379, 1383 (Fed. Cir. 2020) (“‘[P]rior decisions of a panel of the court are

binding precedent on subsequent panels unless and until overturned [e]n banc.’” (quoting

Newell Cos. v. Kenney Mfg. Co., 864 F.2d 757, 765 (Fed. Cir. 1988)).

28Prior to Norman, the Federal Circuit required a plaintiff only to plead facts showing that

“money ha[d] been improperly exacted or retained by the government[,]” and nothing more;

there was no additional money-mandating requirement. Casa de Cambio, 291 F.3d at 1364

(quoting Testan, 424 U.S. at 401)); see 291 F.3d at 1363 (“Our cases have established that there is

no jurisdiction under the Tucker Act over a Due Process claim unless it constitutes an illegal

exaction.”); see also Aerolineas Argentinas, 77 F.3d at 1578 (discussing plaintiff’s illegal exaction

claim and stressing that the Court “need not discuss alternative theories of jurisdiction and

recovery offered by the airlines, including theories of . . . money-mandating statute[s]”).

29Norman, 429 F.3d at 1096 (“Assuming arguendo that illegal exaction principles are ever

applicable to actions against the United States for just compensation for an alleged taking of real

property, we agree with the trial court that” the statute in question did not directly result in an

exaction so as to satisfy the jurisdictional prerequisite for maintaining an illegal exaction claim).

30The Export Clause provides that “[n]o Tax or Duty shall be laid on Articles exported from any

State.” U.S. Const. art. I, 9, cl. 5.

31205 F.3d at 1373-74 (“We also hold that the cause of action based on the Export Clause is self-

executing; that is, similar to the Compensation Clause, a party can recover for payment of taxes

- 31 -

Federal Circuit explicitly has recognized Cyprus Amax as an example of a money-

mandating case, notwithstanding that the Export Clause also may serve as the basis for

an illegal exaction claim. 32

Indeed, the Federal Circuit has explained that the Export Clause is unique:

“[u]nlike most substantive rights asserted under Tucker Act jurisdiction, the Export

Clause may form the basis for both the second and third categories of claims.” Ontario

Power, 369 F.3d 1298 at 1301-02 (emphasis added). Thus, Cyprus Amax itself cannot be

read as defining the nature of illegal exaction claims, and Ontario Power explicitly held

that the Export Clause may serve as the basis for two different types of Tucker Act

causes of action: money-mandating and illegal exaction claims.

Several more recent Federal Circuit decisions appear not to endorse the language

from Norman that would impose money-mandating requirements on illegal exaction

claims. In Lummi Tribe of the Lummi Reservation, Washington v. United States, for example,

an Indian tribe and three tribal housing entities brought suit under the Tucker Act and

Indian Tucker Act, alleging that the government improperly deprived them of grant

funds to which they were entitled pursuant to the Native American Housing Assistance

and Self-Determination Act of 1996 (“NAHASDA”). 870 F.3d 1313, 1314-15 (Fed. Cir.

2017). This Court had held that while NAHASDA itself is money-mandating, “the

failure to give a hearing under [the statutory scheme at issue] does not, on its own,

support an illegal exaction claim.” Id. at 1317. Because the money-mandating decision

was dispositive as to jurisdiction, the government sought and obtained certification for

interlocutory appeal, while the plaintiffs sought reconsideration of this Court’s illegal

exaction holding, which this Court had denied. Id.

On appeal, the Federal Circuit reversed, holding that this Court “erred in finding

NAHASDA to be money mandating.” Id. at 1319 (“Here, the underlying claim is not for

presently due money damages. It is for larger strings-attached NAHASDA grants—

including subsequent supervision and adjustment—and, hence, for equitable relief.”).

Under the more recent decisions, applying Norman’s money-mandating language to

illegal exaction claims, the Federal Circuit’s jurisdictional inquiry should have ended.

But, rather than call it quits with the money-mandating analysis, the appellate court

continued on to reject explicitly the plaintiffs’ alternative argument that “alleged

procedural failures associated with HUD's grant decision resulted in a per se illegal

under the Export Clause independent of the tax refund statute.”).

32 Ontario Power, 369 F.3d at 1301-02 (discussing the “three types” of “underlying monetary

claims” under the Tucker Act, and concluding that “[u]nlike most substantive rights asserted

under Tucker Act jurisdiction, the Export Clause may form the basis for both the second and

third categories of claims”); id. at 1302 (describing Cyprus Amax as holding that the “Export

Clause is money-mandating”); cf. White v. United States, 2012 WL 252008, at *2 (Fed. Cl. Jan. 9,

2012) (“The Due Process Clause is money-mandating only when the theory of recovery is an

illegal exaction.”).

- 32 -

exaction, independently conferring jurisdiction on the Claims Court.” Lummi Tribe, 870

F.3d at 1319 (emphasis added).

Notably, the Federal Circuit did not simply reject out-of-hand the notion that an

illegal exaction claim may provide this Court with an independent basis for Tucker Act

jurisdiction. Nor did the Federal Circuit pause to comment that the lack of a money-

mandating provision foreclosed the possibility of an illegal exaction claim. Instead, the

Federal Circuit held that “[a]n illegal exaction claim must be based on property taken

from the claimant, not property left unawarded to the claimant, rendering the Tribes’

exaction claim invalid on its face.” Id. (rejecting plaintiffs’ claims where plaintiffs “have

not and cannot provide legal support for the notion that the failure to disburse property

that was never in the claimant’s possession or control constitutes an exaction”).

Similarly, in Virgin Islands Port Auth. v. United States, Senior Judge Bruggink

described the “two classes of non-contractual [Tucker Act] claims” and held that a

“[p]laintiff need not point to a money-mandating provision” to support the existence of

an illegal-exaction claim “because the necessary remedy to the government improperly

using its authority to place a citizen’s money in its pocket is a return of that sum.” 136

Fed. Cl. 7, 13-14 (2018), aff’d, 922 F.3d 1328 (Fed. Cir. 2019); see also 136 Fed. Cl. at 14

(“We see no further obligation under . . . illegal exaction claims[] for a plaintiff to point

to anything in the statute or regulation on which the government relies that anticipates

an abuse of the statute and authorizes the plaintiff to sue for return of the monies.”).

Put differently still, “[t]he focus of an illegal exaction claim brought in this court is

whether the United States government has the citizen’s money in contravention of

United States law.” Id. at 16. In affirming that decision granting summary judgment,

the Federal Circuit did not disagree with, or otherwise question, this Court’s

jurisdiction or Senior Judge Bruggink’s characterization of illegal exaction claims. See

922 F.3d at 1333-34 (reaching merits of illegal exaction claim and concluding that the

court “need not resolve the issue of whether Customs’ collection constitutes an ‘in

effect’ illegal exaction because this is a merits issue, not a jurisdictional one”). In

reaching the merits, but without searching for a money-mandating provision of law, the

Federal Circuit at least implicitly concluded that Senior Judge Bruggink’s jurisdictional

decision was correct. 33 Id.

33The government in its motion for summary judgment in Virgin Islands Port Authority

specifically relied upon Cyprus Amax Coal Co., arguing that “[t]o invoke Tucker Act jurisdiction

over an illegal exaction claim, a claimant must also demonstrate that the statute or provision

causing the exaction itself provides, either expressly or by ‘necessary implication,’ that ‘the

remedy for its violation entails a return of money unlawfully exacted.’” Def. Mot. for Summary

Judgment (ECF No. 51) at 34, Virgin Islands Port Authority v. United States, 136 Fed. Cl. 7 (2018)

(No. 13-390) (quoting Cyprus Amax Coal Co., 205 F.3d at 1373); see Brief of Defendant-Appellee,

Fed. Cir. No. 2018-1698, at 24, 29, 41 (discussing Cyprus Amax and citing Norman, 429 F.3d at

1095). Senior Judge Bruggink explicitly rejected that jurisdictional argument, and the Federal

Circuit implicitly affirmed his conclusion, particularly given that the government briefed the

- 33 -

While it is true that “if the money-mandating requirement did not apply to

illegal exaction claims, then any Government violation of a constitutional provision,

statute, or regulation could result in a claim for money damages against the

Government[,]” 34 the opposite possibility is equally troubling: 35 a government agency

could compel — directly or in effect — a private party to pay a fee (or a fine), but the

Tucker Act would provide no remedy for the return of such sum improperly collected,

unless there also were a money-mandating provision that independently required the

government to return the money. And, the possible availability of APA remedies

elsewhere would not stop the government from arguing against jurisdiction

everywhere. See Lummi Tribe, 870 F.3d at 1319 (expressing “severe misgivings about the

incongruency of [the government’s] stances in this and related litigation” where “it

appears that the government has taken, essentially, the opposite position in at least one

of our sister circuits in parallel litigation”).

In light of the above discussion, the Court is convinced that “[a]n exaction claim

provides an independent basis for jurisdiction and is a type of claim that the Tucker Act

and the Little Tucker Act were designed to address.” Allegheny Techs. Inc. v. United

States, 144 Fed. Cl. 126, 136 (2019); see Figueroa v. United States, 57 Fed. Cl. 488, 499 (2003)

(“In the context of an illegal exaction, the court has jurisdiction regardless of whether

the provision relied upon can be reasonably construed to contain money-mandating

language.” (citing Bowman, 35 Fed. Cl. at 401)), aff’d, 466 F.3d 1023 (Fed. Cir. 2006), cert.

denied, 550 U.S. 933 (2007). 36 As demonstrated above, several recent Federal Circuit

issue on appeal.

34 Starr Int’l Co., 856 F.3d at 978 (Wallach, J., concurring-in-part and concurring-in-the-result).

35 N. California Power Agency v. United States, 122 Fed. Cl. 111, 116 (2015) (“Even though [the

statutory provision at issue] does not contain an express statement that the remedy for violating

the statute’s proportionality provision is a return of the money paid over to the Government,

the lack of express money-mandating language in the statute does not defeat Plaintiffs’ illegal

exaction claim. . . . Otherwise, the Government could assess any fee or payment it wants from a

plaintiff acting under the color of a statute that does not expressly require compensation to the

plaintiff for wrongful or illegal action by the Government, and the plaintiff would have no

recourse for recouping the money overpaid. Overpayment claims are one of the quintessential

illegal exaction claims . . . .” (citing cases, including Norman)).

36 Whether the Tucker Act codifies a type of Federal common law claim, or simply a type of due

process claim, see Burbank, 87 Tenn. L. Rev. at 349-352, this Court expresses no view. The Due

Process Clause theory of illegal exaction claims appears, however, to be supported by the

weight of the case law. See Casa de Cambio, 291 F.3d at 1363 (“Our cases have established that

there is no jurisdiction under the Tucker Act over a Due Process claim unless it constitutes an

illegal exaction.”); Augusta v. United States, No. 18-883C, 2018 WL 6721748, at *3 (Fed. Cl. Dec.

20, 2018) (“The Due Process Clause of the Fifth Amendment may only be a basis for our

jurisdiction when a claim concerns an illegal exaction.” (citing Aerolineas Argentinas, 77 F.3d at

1573)); Hawkins v. United States, No. 18-78L, 2018 WL 3214048, at *7 n.3 (Fed. Cl. June 29, 2018)

- 34 -

decisions either support, or are not inconsistent with the Court’s view here. See, e.g.,

Virgin Islands Port Auth., 922 F.3d at 1333-34; Lummi Tribe, 870 F.3d at 1319; Ontario

Power, 369 F.3d 1298 at 1301-02; see also Piszel v. United States, 833 F.3d 1366, 1382 n.11

(Fed. Cir. 2016). 37 In sum, there is no basis to engraft money-mandating requirements

onto illegal exaction claims. 38 Accordingly, unless and until the Federal Circuit

(“The one exception is that our court does have jurisdiction over illegal exaction claims under

the Due Process Clause of the Fifth Amendment. To make such a claim, the plaintiff would have

to show that the government took the plaintiff's money and that this exaction violated due

process.” (citing Aerolineas Argentinas, 77 F.3d at 1572-73)), aff’d 748 F. App’x 325 (Fed. Cir. 2019);

cf. Arrowood Indemnity Co. v. United States, -- Fed. Cl. --, 2020 WL 2510452, at *20 (May 15, 2020)

(“When a party pleads the predicates for a takings claim or illegal-exaction claim, the court

possesses jurisdiction to entertain such claims. . . . Those claims, at a basic level, are contentions

that the government expropriated private property lawfully (takings) or unlawfully (illegal

exaction). . . .If a party alleges the necessary predicates for these claims, the court is not

deprived of jurisdiction even if the complaint . . . could support a tort claim.”).

37In Piszel, the Court of Federal Claims dismissed a complaint where “there [was] no way to

read the allegations in the complaint to state a plausible illegal exaction claim.” Piszel v. United

States, 121 Fed. Cl. 793, 802 (2015), aff’d, 833 F.3d 1366 (Fed. Cir. 2016). Thus, the trial court

granted the government’s motion to dismiss the complaint for “failure to state a claim”

pursuant to RCFC 12(b)(6), and the Federal Circuit affirmed, similarly reasoning that

“Mr. Piszel’s complaint fails to state a claim on which relief can be granted.” 833 F.3d at 1369;

see id. at 1372 (“noting that “[t]he government moved to dismiss under Rule 12(b)(6) of the

Rules of the United States Court of Federal Claims”). The Federal Circuit explained that “there

was no exaction here because there was no payment.” 833 F.3d at 1382. Notably, however, the

Federal Circuit pointed out that the plaintiff, for the first time, on appeal, argued that the

primary statute at issue – the Housing and Economic Recovery Act (HERA) – was money-

mandating. Id. at n.11. While the plaintiff “failed to plead such a claim,” and the appellate

court concluded that “there [was] no basis for such an assertion,” the Federal Circuit never

suggested that it or the Court of Federal Claims somehow lacked jurisdiction over the illegal

exaction claim that was at issue.

38Usibelli Coal Mine v. United States, 54 Fed. Cl. 373, 379 (2002) (“First, it is apparent that the

Federal Circuit viewed the Export Clause as a money-mandating provision that authorized the

award of money damages, thereby allowing a claimant to file an action based directly on that

clause. Second, relatedly, the court viewed such a damages action as distinct from a tax refund

suit, and thus divorced from the illegal exaction doctrine described in Eastport. That the court's

opinion, on several occasions, referred to the Coal Tax as an ‘illegal exaction’ does not suggest

otherwise. Per contra. The overall methodology employed by the court, liberally spiced with

references to Testan, [] and Mitchell, [] manifestly is that typically employed in identifying

money-mandating provisions in the law.”), rev’d on other grounds, 311 F. App’x 350 (Fed. Cir.

2008); see also Lion Raisins, 54 Fed. Cl. at 376 (noting that “a tax refund suit” – a classic illegal

exaction type claim – “does not involve a demand for damages based on the existence of some

money-mandating statute or Constitutional provision”).

- 35 -

definitively resolves this issue in a contrary manner, 39 the undersigned is of the view

that a plaintiff need not identify a money-mandating provision of law to invoke this

Court’s jurisdiction for an illegal exaction claim.

2. Mr. Perry’s Complaint Does Not Contain Sufficient Facts To State An

Illegal Exaction Claim Within This Court’s Jurisdiction Or Fails To State

A Claim As A Matter Of Law Upon Which Relief Can Be Granted

In light of the above discussion, the Tucker Act’s illegal exaction claim category

covers the general thrust of Mr. Perry’s Complaint here. Thus, the Court easily can

imagine a case in which a government agency, such as the USPTO, improperly charges,

or overcharges, a party for the agency’s services or for a party’s participation in a

government program — or any other innumerable similar scenarios — but then, for

whatever reason, declines to issue a refund. 40 Unlike a takings claim, where a plaintiff

must concede the validity or legality of an agency’s action, an illegal exaction claim

typically is premised, in contrast, upon “the absence of statutory authorization.”

Aerolineas Argentinas, 77 F.3d at 1578-79; see Reid, 2020 WL 2764753, at *19 (“When the

government expropriates property, a plaintiff can obtain relief under either a takings

theory or an illegal-exaction theory, . . . but not both. . .The winning claim depends on

the facts established; a takings claim requires lawful conduct, while an illegal-exaction

claim is premised on unauthorized conduct.” (internal citations omitted)). 41

39See Starr Int’l Co., 856 F.3d at 978 (Wallach, J., concurring-in-part and concurring-in-the-result)

(explaining his view “that a party bringing an illegal exaction claim must identify a separate

money-mandating source of substantive law entitling it to compensation,” that “the weight of

our illegal exaction case law supports this conclusion[,]” and that “[i]t is regrettable that the

majority chooses to bypass this opportunity to clarify the law for future cases”).

40Auto Club Ins. Ass’n, 103 Fed. at 273 (“[Plaintiff] is correct that the Tucker Act encompasses a

claim of illegal exaction (a non-tortious, non-contractual claim for money damages)”).

41Fairholme Funds, Inc. v. United States, 147 Fed. Cl. 1, 40 (2019) (“When a party pleads the

predicates for a takings claim or illegal-exaction claim, the court possesses jurisdiction to

entertain such claims. . . . Those claims, at a basic level, are contentions that the government

expropriated private property lawfully (takings) or unlawfully (illegal exaction).”), motion to

certify appeal granted, 147 Fed. Cl. 126 (2020); Orient Overseas Container Line (UK) Ltd. v. United

States, 48 Fed. Cl. 284, 289 (2000) (“Takings claims arise because of a deprivation of property

that is authorized by law. Illegal exactions arise when the government requires payment in

violation of the Constitution, a statute, or a regulation.”); Mallow v. United States, 161 Ct. Cl. 446,

450 (1963) (Tucker Act provided jurisdiction in the Court of Claims for recovery of money that

the government illegally collected from the plaintiff as fines under void convictions and

sentences); Suwannee S.S. Co. v. United States, 150 Ct. Cl. 331, 335–36 (1960) (ship owner may

recover payment illegally exacted as a condition of receiving permission to sell ship to a foreign

purchaser); Seatrade Corp. v. United States, 152 Ct. Cl. 356, 360 (1961) (same); Eversharp, Inc. v.

United States, 125 F. Supp. 244, 246–47 (Ct. Cl. 1954) (finding jurisdiction and explaining “that, if

the plaintiff is right in its interpretation of the Renegotiation Act, and that Act does contemplate

the collection of interest at a reasonable rate, and six percent interest is unreasonable, the

- 36 -

Although this “Court should hesitate before ruling that it lacks subject-matter

jurisdiction over a claim of illegal exaction[,]” Fireman v. United States, 44 Fed. Cl. 528,

535 (1999), Mr. Perry’s Complaint, at a minimum, must contain the requisite factual

allegations necessary to support such a claim. Harris 2014 WL 10936253, at *1 n.4

(dismissing plaintiff’s illegal exaction claim because “ambiguous statements [in the

complaint] regarding the presence of an illegal exaction” did not suffice to establish this

Court’s subject-matter jurisdiction); see Crow Creek Sioux Tribe, 900 F.3d at 1354–55 (“’To

survive a motion to dismiss . . . a complaint must contain sufficient factual matter’ that

would plausibly establish . . . [jurisdiction, and] “’[t]hreadbare recitals of the elements

. . . supported by mere conclusory statements, do not suffice.’” (quoting Iqbal, 556 U.S.

at 678)). Here, the complete lack of any factual allegations contained in Mr. Perry’s

Complaint to support an illegal exaction claim precludes this Court from exercising

subject-matter jurisdiction.

The Federal Circuit’s decision in Aerolineas Argentinas, for example, illustrates the

sort of allegations a complaint must contain for this Court to possess jurisdiction over

an illegal exaction claim. In that case, the Federal Circuit held that the Court of Federal

Claims improperly dismissed plaintiff’s illegal exaction claim, noting that the airline

had pleaded sufficient facts to support jurisdiction. 77 F.3d at 1578. Indeed, the court

highlighted that the airline’s complaint laid out specific factual assertions that were

necessary to support an illegal exaction claim within this Court’s Tucker Act

jurisdiction. Id. (“The Service improperly required the airlines to take custody, pending

processing and decision of asylum petitions, of aliens who were in ‘stowaway’ status

because they destroyed or concealed their travel documents.”). The Federal Circuit

further emphasized that the airline’s complaint pointed to specific legal bases for the

alleged illegal exaction. 77 F.3d at 1578 (explaining that plaintiff specifically alleged

that the government “misappli[ed] [] 8 C.F.R. § 235.3(d) to impose on the airlines the

cost of long-term detention of excludable aliens, after repeal of INA § 233”).

In the absence of factual allegations of any specificity regarding the USPTO’s

collection or handling of Mr. Perry’s funds, his Complaint may be dismissed for lack of

jurisdiction. Harris 2014 WL 10936253, at *1 n.4 (“Notwithstanding plaintiff's

ambiguous statements regarding the presence of an illegal exaction claim in the

complaint, the court must agree with defendant that there is no nonfrivolous illegal

exaction claim in this suit.”). Mr. Perry’s Complaint with regard to his putative illegal

exaction claim is “[a]mbiguous” at best, as he does not point to a particular basis to

plaintiff's claim is founded upon the misinterpretation and misapplication of an Act of

Congress.”); Pan American World Airways v. United States, 129 Ct. Cl. 53, 55 (1954) (“the collection

of money by Government officials, pursuant to an invalid regulation” is an illegal exaction and

not a tort); see also Carriso v. United States, 106 F.2d 707, 712 (9th Cir. 1939) (when a government

agent construes a statute as remaining in effect after it has been repealed and uses it as a basis to

collect fees, a claim to recover the fees is “founded upon a law of Congress” and “does not

sound in tort”).

- 37 -

support the conclusory assertion that the USPTO exacted, or is holding, his money in

violation of law. Id.; see Compl. ¶ 112 (“the USPTO is intentionally doing illegal things

and covering up facts with more illegal practices”). As such, the Court doubts

Mr. Perry’s Complaint meets the pleading standards to vest this Court with jurisdiction

over his putative illegal exaction claim.

Nevertheless, as explained supra, the preferred approach is to dismiss the claim

on the merits (i.e., pursuant to RCFC 12(b)(6)). See Carter, 794 F.3d at 807; Carr, 591 F.3d

at 917; see also Fireman, 44 Fed. Cl. at 535 (“[This] Court should hesitate before ruling

that it lacks subject matter jurisdiction over a claim of illegal exaction”); 42 XP Vehicles,

121 Fed. Cl. at 779 (“A claim that survives a jurisdictional challenge remains subject to

dismissal under RCFC 12(b)(6) if it does not provide a basis for the court to grant

relief.”).

To assert a valid illegal exaction claim that will survive a motion to dismiss

pursuant to RCFC 12(b)(6), a plaintiff’s complaint “must show that: (1) money was

taken by the government and (2) the exaction violated a provision of the Constitution, a

statute, or a regulation.” Piszel 121 Fed. Cl. at 801. Mr. Perry’s illegal exaction claim,

however, does not meet that standard.

For example, in Piszel, the Court of Federal Claims held that “[b]ecause plaintiff

cannot show that he has paid any money to the government directly or ‘in effect,’ he

fails to state a plausible illegal exaction claim in the complaint” and dismissal under

12(b)(6) was warranted. 121 Fed. Cl. at 802. In affirming that decision, the Federal

Circuit explained that because “no facts as alleged in the complaint concern the

payment of money by [plaintiff]. . . [the] illegal exaction claim must also fail.” Piszel,

833 F.3d at 1382. Nevertheless, the Federal Circuit emphasized that for a plaintiff to

properly plead an illegal exaction claim he or she must seek “’recovery of monies that

the government has required to be paid contrary to law.’” Id. (quoting Aerolineas

Argentinas, 77 F.3d at 1572) (emphasis added). In other words, a plaintiff cannot allege

merely that he or she paid money to the government; rather, a plaintiff also must assert

sufficient facts to demonstrate that such payment was made pursuant to a requirement

that is “contrary to law[.]” Id.; cf. Virgin Islands Port Auth. 922 F.3d at 1337 (holding that

“a mere claim of right is not coercive” and that plaintiff had failed to adequately allege

an illegal exaction claim where plaintiff showed “neither a prohibition nor coercive

government action[]”).

42

That is true particularly, where, as here, Mr. Perry is a pro se plaintiff. See, e.g., Enron Oil Corp.

v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993) (noting that “as a general rule . . . when . . . [a] party is

appearing pro se” courts should reach the merits); cf. Armstrong v. Office of Pers. Mgmt., 314 F.

App’x 269, 271 (Fed. Cir. 2008) (noting that the court will “construe [pro se plaintiff’s] pleadings

liberally . . . and reach the merits of her case[]”); Gunn v. U.S. Postal Serv., 25 F. App’x 895, 896

(Fed. Cir. 2001) (“[T]he court extends that leniency to reach the merits of Gunn’s pro se appeal.”).

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Similarly, in Aerolineas Argentinas, recall that the Federal Circuit explained that

the plaintiffs had established jurisdiction in the Court of Federal Claims when they

pleaded “a claim for the recovery of monies that they assert were illegally exacted.” 77

F.3d at 1573–74. The court examined whether the regulation upon which the

government relied had been “misinterpreted, misapplied, or [was] invalid.” Id. In so

doing, the Federal Circuit noted “[i]f the [plaintiffs] fail to establish that the exaction

was contrary to law, that failure does not deprive the court of jurisdiction, but serves as

an adjudication on the merits.” Id. at 1574. Here, there is no allegation — factual or

otherwise — demonstrating how or why Mr. Perry’s alleged payment to the USPTO

“was contrary to law.” Id. Thus, even where “jurisdiction has been established,” this

Court must nonetheless dismiss the complaint where it “does not assert a set of facts

which if proven would support the claim.” 77 F.3d at 1572 (citing Bell, 327 U.S. at 682).

In such a case — that is, when a plaintiff’s complaint fails to plead sufficient facts to

support his or her purported illegal exaction claim — any “dismissal is deemed an

adjudication on the merits.” 77 F.3d at 1572 (citing Bell, 327 U.S. at 682).

These cases stand for the proposition that — just as the Court indicated with

regard to the pleading requirements for contracts and takings claims — mere

conclusory legal characterizations or recitations of claim elements do not suffice to state

an illegal exaction claim upon which relief can be granted. See Laguna Hermosa, 671 F.3d

at 1288 (plaintiff must “elevate a claim for relief to the realm of plausibility” pursuant to

RCFC 12(b)(6)). The Court thus finds that Mr. Perry’s bare assertion that the USPTO’s

fee assessments were illegal (or otherwise improper) constitutes a conclusory legal

characterization, unsupported by any factual averments, which, if true, would show

why the fees he was required to pay were improperly assessed or retained by the

USPTO. See Bradley, 136 F.3d 1322 (“Conclusory allegations of law and unwarranted

inferences of fact do not suffice to support a claim.”).

Thus, even assuming that this Court has jurisdiction to consider Mr. Perry’s

illegal exaction claim, because his Complaint contains no factual allegations

demonstrating any sum improperly exacted or retained, he has failed to state an illegal

exaction claim as a matter of law. Accordingly, Mr. Perry’s claims — to the extent they

relate to USPTO fees alleged to have been improperly collected or retained — are

dismissed pursuant to RCFC 12(b)(1) or, in the alternative, pursuant to RCFC 12(b)(6). 43

43 As noted, Mr. Perry is a pro se litigant, and thus, as stated supra, his complaint is entitled to a

liberal construction. Nevertheless, even after multiple reviews of his lengthy Complaint, the

Court cannot identify specific factual allegations supporting his illegal exaction claim. To the

extent that any such facts are present in the Complaint, the Court emphasizes that, despite Mr.

Perry’s pro se status, his “[a]rguments . . . are not fleshed out” and thus “are not preserved.”

Stephanatos v. United States, 306 F. App’x 560, 564 (Fed. Cir. 2009) (citing SmithKline Beecham

Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006), and Halliburton Energy Servs., Inc. v.

M–I LLC, 514 F.3d 1244, 1250 n.2 (Fed. Cir. 2008), in support of the proposition that because

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V. Mr. Perry’s Remaining Claims Are Frivolous

Finally, Mr. Perry alleges that representatives from the USPTO broke into his

email account and deleted various emails that he previously had received from the

agency. See, e.g., Pl. Resp. ¶ 2. In turn, he attempted to file — on several occasions — a

request that this Court issue both an injunction and a restraining order against the

USPTO. See ECF No. 15 (permitting filing of plaintiff’s request for injunctive relief);

ECF No. 16 (plaintiff’s opposition, including request for injunctive relief); ECF No. 17

(plaintiff’s separate request for a preliminary injunction and a restraining order); ECF

No. 22 (order rejecting an additional nine attempted filings). Such claims must be

dismissed for lack of jurisdiction pursuant to RCFC 12(b)(1), and because they are

frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i).

First, as the Court highlighted above and as the government correctly contends,

equitable relief is a remedy which this Court ordinarily may not grant, absent limited

circumstances not present in this case. See 28 U.S.C. § 1491(b)(2) (authorizing

“remand[s]” of “appropriate matters to any administrative or executive body or official

with such direction as it may deem proper and just” where such relief is “incident of

and collateral to” a money judgment); Ute Indian Tribe of Uintah and Ouray Indian

Reservation v. United States, 145 Fed. Cl. 609, 632 n.17 (2019) (quoting James v. Caldera, 159

F.3d 573, 580 (Fed. Cir. 1998), for the proposition that “the Court of Federal Claims has

no power to grant affirmative non-monetary relief unless it is ‘tied and subordinate to a

money judgment’”). In this case, Mr. Perry pleads no facts, which, if proven, would

entitle him to a money judgment, let alone to some sort of equitable relief.

Second, the Court concludes that Mr. Perry’s claims related to his email account

should be dismissed because they are patently frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i)

(instructing that a court “shall dismiss” an in forma pauperis (“IFP”) proceeding “if the

court determines that . . . the action . . . is frivolous”); see also McCullough v. United States,

76 Fed. Cl. 1, 3 (2006) (holding that pursuant to 28 U.S.C. § 1915(e)(2), once an IFP

plaintiff’s claims are found to be frivolous, “the court shall dismiss the case”); Denton v.

Hernandez, 504 U.S. 25, 33 (1992) (“frivolousness is a decision entrusted to the discretion

of the court”); Taylor v. United States, 568 F. App’x 890, 891 (Fed. Cir. 2014) (summarily

affirming Court of Federal Claims’ dismissal of frivolous complaint pursuant to 28

U.S.C. § 1915(e)(2)(B)(i), and holding that a trial court “is required to dismiss a frivolous

complaint from a litigant who is proceeding in forma pauperis”); Pikulin v. United States,

425 F. App’x 902, 903 (Fed. Cir. 2011) (affirming dismissal of plaintiff’s complaint as

frivolous, as it “provide[d] no basis for jurisdiction in the Court of Federal Claims”).

“plaintiff does not expressly use the term ‘illegal exaction’ or ‘wrongful exaction’ throughout

[the] instant complaint, it [cannot] be construed as if the terms [were] being used throughout

th[e] complaint”). To the extent that Mr. Perry asserted an illegal exaction claim, he fails to state

such a claim as a matter of law upon which relief can be granted.

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Although this Court may not dismiss an IFP complaint merely because plaintiff’s

allegations are “unlikely,” this court must dismiss a claim as frivolous if the alleged facts

present “fantastic” or “delusional” scenarios. Taylor, 568 F. App’x at 891 (quoting

Neitzke v. Williams, 490 U.S. 319, 327 (1989)); see Denton, 504 U.S. at 33 (emphasizing that

“a finding of factual frivolousness is appropriate when the facts alleged rise to the level

of the irrational or the wholly incredible”). A “tale of . . . intrigue” — like parts of

Mr. Perry’s Complaint — may be deemed frivolous where “the factual allegations

asserted are so unbelievable that there is no need for an evidentiary hearing to

determine their veracity.” Taylor, 568 F. App’x at 891. Accordingly, Mr. Perry’s request

for injunctive relief is denied, and his claim for relief is dismissed. 44

CONCLUSION

The government’s motion to dismiss Mr. Perry’s Complaint is GRANTED, and

the same hereby is DISMISSED for lack of jurisdiction and for failure to state a claim,

pursuant to RCFC 12(b)(1) and 12(b)(6), respectively. To the extent Mr. Perry properly

has filed any pending motions or other requests, they are denied as moot. Furthermore,

given the duplicative and frivolous filings Mr. Perry has attempted in this case, the

Court directs the Clerk’s office to reject any of Mr. Perry’s further submissions in this

action, unless such filings comply with this Court’s rules regarding post-dismissal

submissions. 45

44This Court is compelled to note that Mr. Perry’s repeated attempts to file duplicative,

meritless motions borders on abuse of process. United States v. Nesglo, Inc., 744 F.2d 887, 892 (1st

Cir. 1984) (noting that a “frivolous appeal of a sanction for bringing frivolous litigation borders

on abuse of process”). In that regard, 28 U.S.C. § 1915(e)(2) is a “tool[ ] that [is] available in

extreme cases to protect public officials from undue harassment . . . .” Crawford-El v. Britton, 523

U.S. 574, 600 (1998). This Court will not permit the “squander[ing] [of] the resources of the

court or defendant with frivolous litigation[.]” Chandler v. United States, 31 Fed. Cl. 106, 111

(1994). Moreover, “’[i]t is vital that the right to file in forma pauperis not be incumbered by those

who would abuse the integrity of our process by frivolous filings.’” Zatko v. California, 502 U.S.

16, 18 (1991) (per curiam) (quoting In re Amendment to Rule 39, 500 U.S. 13, 13 (1991) (internal

quotation marks omitted)).

45 The Federal Circuit has suggested that a finding of frivolousness may support such a

directive to the Clerk of Court. See Constant v. United States, 929 F.2d 654, 659 (Fed. Cir. 1991)

(remarking, in light of the plaintiff’s prior frivolous filings, that “we cannot assume that papers

he may hereafter file in this court will be well-founded and presented in good faith[,]” and thus

ordering the clerk “henceforth to accept for filing no . . . fileable paper from [plaintiff] without

an order of the court approving the filing”); Winsett v. MacDonald, 611 F. App’x 710, 714 (Fed.

Cir. 2015) (applying 28 U.S.C. § 1915(e)(2), and noting that, in light of the plaintiff’s “repetitive

filings at this court and [in other] tribunals, we advise that any additional applications to

proceed in forma pauperis should be subject to additional scrutiny”). Indeed, this is not the first

time a court appears to have expressed serious criticism of Mr. Perry’s frivolous litigation

habits. See In re Perry, 2017 WL 1276075, at *2 (C.D. Cal. Mar. 31, 2017) (noting that he “was

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The Clerk is directed to enter judgment accordingly.

It is so ORDERED.

Matthew H. Solomson

Matthew H. Solomson

Judge

found to be a vexatious litigant by the state courts, [and that] he was required to post a bond

before initiating any state court action”), aff’d, 734 F. App’x 533, 535 (9th Cir. 2018) (denying

“Perry’s requests that this court review prior orders of the bankruptcy court, order

disqualification of the bankruptcy judge, sanction appellees’ attorneys, reinstate federal claims,

[and] enter judgment in Perry’s favor”), cert. denied sub nom. Perry v. JPMorgan Chase Bank, N.A.,

140 S. Ct. 629, 205 L. Ed. 2d 392 (2019); see also In re Perry, 2013 WL 3369310, at *4 (B.A.P. 9th Cir.

July 2, 2013) (noting that a “motions panel of the Ninth Circuit denied Mr. Perry’s motion” to

proceed in forma pauperis “because . . . the appeal is frivolous”), aff’d, 586 F. App’x 283 (9th Cir.

2014). Accordingly, this directive is warranted in light of Mr. Perry’s prior-dismissed filings.

Pikulin, 425 F. App’x at 903 (highlighting that plaintiff “had filed five related suits in the Court

of Federal Claims, as well as numerous suits in the United States District Courts for the

Southern and Eastern Districts of New York[,]” in affirming the Court of Federal Claims’

dismissal of plaintiff’s complaint based on a finding of frivolousness).

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