NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

DONALD L. BAKER,

Plaintiff-Appellant

v.

GINA M. RAIMONDO, SECRETARY OF 

COMMERCE, KATHERINE K. VIDAL, UNDER 

SECRETARY OF COMMERCE FOR 

INTELLECTUAL PROPERTY AND DIRECTOR OF 

THE UNITED STATES PATENT AND TRADEMARK 

OFFICE,

Defendants-Appellees

______________________ 

2021-1961

______________________ 

Appeal from the United States District Court for the 

Eastern District of Virginia in No. 1:20-cv-01245-AJTMSN, Judge Anthony J. Trenga.

-------------------------------------------------

DONALD L. BAKER,

Plaintiff-Appellant

v.

GINA M. RAIMONDO, SECRETARY OF 

COMMERCE, ANDREW I. FAILE, ACTING 

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2 BAKER v. RAIMONDO

COMMISSIONER FOR PATENTS, U.S. PATENT 

AND TRADEMARK OFFICE (USPTO), KATHERINE 

K. VIDAL, UNDER SECRETARY OF COMMERCE 

FOR INTELLECTUAL PROPERTY AND DIRECTOR 

OF THE UNITED STATES PATENT AND 

TRADEMARK OFFICE, ROBIN O. EVANS, 

DIRECTOR, TC 2800, USPTO, ELGIN ENAD, 

SUPERVISORY PE, ART UNIT 2837, USPTO, 

DAVID S. WARREN, PE, ART UNIT 2837, USPTO, 

MARLON T. FLETCHER, PE, ART UNIT 2837, 

USPTO, DANIEL SWERDLOW, ART UNIT 3649, 

USPTO,

Defendants-Appellees

UNKNOWN EMPLOYEES OF THE DEPARTMENT 

OF COMMERCE AND USPTO,

Defendant

______________________ 

2021-2116

______________________ 

Appeal from the United States District Court for the 

Eastern District of Virginia in No. 1:20-cv-01367-CMHMSN, Senior Judge Claude M. Hilton.

______________________ 

Decided: June 13, 2022

______________________ 

DONALD L. BAKER, Tulsa, OK, pro se.

 MATTHEW JAMES MEZGER, Office of the United States 

Attorney for the Eastern District of Virginia, United States 

Department of Justice, Alexandria, VA, for defendants-appellees. Also represented by JESSICA D. ABER. 

______________________ 

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BAKER v. RAIMONDO 3

PER CURIAM. 

Donald L. Baker appeals from two judgments of the 

United States District Court for the Eastern District of Virginia dismissing two complaints filed by Dr. Baker for lack 

of subject matter jurisdiction. For the reasons below, we 

affirm both judgments. 

BACKGROUND

Dr. Baker represented himself before the U.S. Patent 

and Trademark Office (USPTO) in the prosecution of the 

four patent applications at issue in this appeal. SAppx.

11.1 In 2020, dissatisfied with the examination process, 

and before filing any administrative appeals, Dr. Baker 

filed two civil actions against the Secretary of Commerce, 

the Director of the (USPTO), and various unnamed USPTO 

employees in the Eastern District of Virginia, alleging that 

the patent examiners assigned to his applications were unqualified, engaged in fraud, and acted in bad faith. 

SAppx. 1, 6–37. 

These are not the first cases Dr. Baker has pursued regarding the USPTO’s determinations in these applications. 

In 2019, Dr. Baker sued the Director and other USPTO employees in the Northern District of Oklahoma, similarly alleging that the examiners assigned to his patent 

applications used “junk science,” falsified material facts, 

and generally acted in bad faith. See Baker v. Iancu, 

No. 19-cv-0289, 2019 WL 5395449, at *1 (N.D. Okla. 

Oct. 22, 2019), aff’d, 809 F. App’x 552, 553 (10th Cir. 2020). 

1 Citations to “SAppx.” refer to the appendix attached to the Appellees’ brief in Appeal No. 21-1961. Because the contents of the appendices in the two appeals at 

issue overlap significantly, we typically cite only to the appendix in Appeal No. 21-1961. Where appropriate, we cite 

to the appendix attached to the Appellees’ brief in the companion case as “Appeal No. 21-2116 SAppx.”

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4 BAKER v. RAIMONDO

The Northern District of Oklahoma ultimately determined 

that it lacked subject matter jurisdiction for two reasons. 

Id. at *2. First, because Dr. Baker “admit[ted] that he did 

not file an appeal to the” Patent Trial and Appeal Board, 

he had thus had not exhausted his administrative remedies, as he was required to do before filing suit in district 

court. Id. And second, a patent applicant may only appeal 

final decisions of the Board to the Eastern District of Virginia or the Federal Circuit. Id. Thus, the Northern District of Oklahoma was “not the proper court [in which] to 

seek judicial review of the denial of a patent application.” 

Id. Accordingly, the district court dismissed the case without prejudice for lack of jurisdiction. Id. at *4. The Tenth 

Circuit affirmed, Baker, 809 F. App’x at 553,2 and the Supreme Court denied Dr. Baker’s petition for a writ of certiorari, 141 S. Ct. 624 (2020).

In October 2020, Dr. Baker filed the first of the complaints at issue in this appeal in the Eastern District of 

Virginia, a complaint effectively identical to that in the Oklahoma case. SAppx. 6–37. Invoking various criminal statutes including the Racketeer Influenced and Corrupt 

Organizations Act, Dr. Baker sought, among other things,

to prevent the USPTO from “falsif[ying] . . . paperwork and 

. . . material facts in prior art,” “obstructi[ng] . . . his patent 

applications,” and using “junk engineering in patent examination.” SAppx. 30. Dr. Baker listed only two patent applications as being at issue, SAppx. 11, but attempted to 

2 The district court indicated only that the case was 

“dismissed for lack of jurisdiction,” without clarifying 

whether the case was dismissed with or without prejudice. 

Baker, 2019 WL 5395449, at *4. On appeal, the Tenth Circuit remanded “only for the [district] court to amend its 

judgment to reflect that the dismissal is without prejudice.” 

Baker, 809 F. App’x at 553. Accordingly, the Oklahoma 

case was ultimately dismissed without prejudice. 

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BAKER v. RAIMONDO 5

reserve “any and all rights to raise and try” his other two 

pending applications, SAppx. 18. 

On November 4, 2020, Dr. Baker filed a notice with the 

district court indicating that the Supreme Court had denied certiorari in his Oklahoma case, which he asserted 

“remove[d] any bar to raising issues from” the Oklahoma 

case in the current Virginia case. SAppx. 39. The notice 

also informed the court that he planned to file another lawsuit against the USPTO. SAppx. 39. Dr. Baker did so on 

November 12, 2020, filing a second lawsuit in the Eastern 

District of Virginia alleging almost identical claims against 

the USPTO regarding his two remaining patent applications. See Baker v. Raimondo, No. 1:20-cv-1367, 2021 WL 

1381560, at *1 (E.D. Va. Mar. 30, 2021); see also Appeal 

No. 21-2116 SAppx. 16 (stating this case is a “[r]efiling” of 

the Oklahoma case). 

The Government moved to dismiss Dr. Baker’s complaints in both cases for lack of subject matter jurisdiction. 

Because both lawsuits presented “the same allegations and 

rest[ed] on the same issues” as the Oklahoma lawsuit, the 

district court determined that the doctrine of collateral estoppel precluded Dr. Baker from relitigating his failure to 

exhaust his administrative remedies. SAppx. 1–2; Appeal 

No. 21-2116 SAppx. 1–4. Because it determined it did not 

have subject matter jurisdiction in either case, the district 

court granted the Government’s motions to dismiss. 

SAppx. 2; Appeal No. 21-2116 SAppx. 4. 

Dr. Baker appeals. We have jurisdiction under 

28 U.S.C. § 1295(a)(1). 

DISCUSSION

We review a district court’s dismissal of a complaint for 

lack of subject matter jurisdiction under the law of the regional circuit, here the Fourth Circuit. Toxgon Corp. 

v. BNFL, Inc., 312 F.3d 1379, 1380 (Fed. Cir. 2002). Under 

Fourth Circuit law, we review a district court’s dismissal 

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6 BAKER v. RAIMONDO

for lack of subject matter jurisdiction de novo. Taylor 

v. Kellogg Brown & Root Servs., Inc., 658 F.3d 402, 408 

(4th Cir. 2011). For the reasons below, we affirm the district court in both cases.

On appeal, Dr. Baker argues the district court (1) “unjustly applied” collateral estoppel, Appellant’s Br.3 1, and 

(2) erred in failing to address his reliance on various other 

sources of law, including his Bivens4 claim and several provisions of the criminal code, id. at 2. We take each argument in turn. 

I 

We begin with Dr. Baker’s argument that the district 

court inappropriately applied the doctrine of collateral estoppel to the two cases at issue. Dr. Baker asserts that by 

applying collateral estoppel, the district court “put[] its 

own convenience above the public damages of government 

corruption.” Id. at 1.

A 

Because the application of general collateral estoppel 

principles “is not a matter within the exclusive jurisdiction 

of this court, we must apply the law of the circuit in which 

the district court here sits, i.e., the Fourth Circuit.” Pharmacia & Upjohn Co. v. Mylan Pharms., Inc., 170 F.3d 1373, 

1381 n.4 (Fed. Cir. 1999). We note that the Fourth Circuit 

has, in some circumstances, declined to apply collateral estoppel where the judgment in a prior case is supported by 

3 Citations to “Appellant’s Br.” refer to brief submitted by Dr. Baker in Appeal No. 21-1961. Because the contents of the briefs submitted by Dr. Baker in both appeals 

overlap significantly, we cite only to his brief in Appeal 

No. 21-1961. 

4 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). 

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BAKER v. RAIMONDO 7

independently sufficient alternative holdings. See, e.g., In 

re Microsoft Corp. Antitrust Litig., 355 F.3d 322, 328 

(4th Cir. 2004). As the Fourth Circuit has explained, 

“where the court in the prior suit has determined two issues, either of which could independently support the result, then neither determination is considered essential to 

the judgment. Thus, collateral estoppel will not obtain as 

to either determination.” Id. (quoting Ritter v. Mount St. 

Mary’s Coll., 814 F.2d 986, 993 (4th Cir. 1987)); see also 

Intell. Ventures I LLC v. Cap. One Fin. Corp., 937 F.3d 

1359, 1372–76 (Fed. Cir. 2019) (discussing Fourth Circuit 

law on this issue). 

In this case, the Oklahoma court determined that it 

lacked subject matter jurisdiction for two reasons—both 

because Dr. Baker did not exhaust his administrative remedies before the USPTO and because a patent applicant 

may only appeal final decisions of the Patent Trial and Appeal Board to the Eastern District of Virginia or the Federal Circuit. Baker, 2019 WL 5395449, at *2 (“Plaintiff’s 

claims are subject to dismissal for failure to exhaust administrative remedies and for being filed in a court without 

jurisdiction over his claims.”). In other words, the Oklahoma court “determined two issues, either of which could 

independently support the result” of dismissal, Microsoft, 

355 F.3d at 328, and thus Fourth Circuit law indicates that 

collateral estoppel might not apply to either issue. 

B 

Setting aside collateral estoppel, and without resolving 

that issue, we nonetheless affirm the district court’s dismissal of both cases because it properly determined that it 

did not have jurisdiction. Specifically, because Dr. Baker 

did not exhaust his administrative remedies at the USPTO 

before filing suit, the district court did not have subject 

matter jurisdiction over his claims.

A patent applicant who remains dissatisfied with the 

final decision of the Patent Trial and Appeal Board has two 

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8 BAKER v. RAIMONDO

primary options to appeal. He may appeal directly to the 

Federal Circuit. 35 U.S.C. § 141. Alternatively, he may 

sue the USPTO Director in the Eastern District of Virginia. 

35 U.S.C. § 145. To pursue either option, however, an appellant must have received a “final decision” from the Patent Trial and Appeal Board; that is, he must exhaust his 

administrative remedies before the USPTO. See § 141 (requiring a “final decision” from “an appeal to the Patent 

Trial and Appeal Board”); § 145 (requiring a decision from 

an appeal to the Patent Trial and Appeal Board); see also 

Pregis Corp. v. Kappos, 700 F.3d 1348, 1358 (Fed. Cir. 

2012) (“The Patent Act expressly provides an intricate 

scheme for administrative and judicial review of [US]PTO 

patentability determinations[.]”). When a statute requires 

that an appellant exhaust his administrative remedies, a 

district court cannot consider his case until those remedies 

are exhausted. See, e.g., McCarthy v. Madigan, 503 U.S. 

140, 144–45 (1992). In other words, without a final decision from the Patent Trial and Appeal Board, courts are 

not allowed to consider claims regarding the USPTO’s patentability determinations. 

In this case, Dr. Baker filed both Virginia lawsuits before pursuing an administrative appeal to the Patent Trial 

and Appeal Board. As a result, the Patent Trial and Appeal 

Board has not issued a “final decision.” And without a final 

agency decision, the Eastern District of Virginia does not 

have subject matter jurisdiction to consider Dr. Baker’s

claims. See Panos v. Dir. of the U.S. Pat. and Trademark 

Off., No. 3:14-cv-698, 2015 WL 5786826, at *7–9 (E.D. Va. 

Sept. 30, 2015) (finding no subject matter jurisdiction 

where appellant had filed an appeal brief to the Patent 

Trial and Appeal Board but ultimately abandoned that appeal, because there was no “final decision by the Board” for 

the court to review). The district court therefore does not 

have subject matter jurisdiction over Dr. Baker’s claims. 

For these reasons, we affirm the district court’s dismissal 

of Dr. Baker’s cases for lack of subject matter jurisdiction.

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BAKER v. RAIMONDO 9

II

We turn next to Dr. Baker’s argument that the district 

court erred by not addressing the various other sources of 

law he raises in his complaint. Appellant’s Br. 2. Specifically, Dr. Baker argues the district court should have considered his claims brought under: (1) Bivens; (2) 18 U.S.C. 

§§ 242, 1001, and 1519; and (3) 5 C.F.R. § 2635.101.

As an initial matter, we note that Dr. Baker did not respond to the Government’s arguments regarding these issues before the district court. In its motions to dismiss, the 

Government argued at length that Dr. Baker could not sustain a claim under these various sources of law. See

SAppx. 46–56; see also SAppx. 44 (pursuant to the court’s 

local rules, Government providing explicit notice that “failure to respond” to the Government’s motion “may result in 

the relief requested in this motion . . . being granted”). 

Dr. Baker submitted a response to the Government’s motion but did not address the Government’s arguments regarding these sources of law. See SAppx. 57–61. 

Accordingly, Dr. Baker waived his arguments regarding 

these issues. See, e.g., Fresenius USA, Inc. v. Baxter Int’l, 

Inc., 582 F.3d 1288, 1296 (Fed. Cir. 2009) (“If a party fails 

to raise an argument before the trial court, or presents only 

a skeletal or undeveloped argument to the trial court, we 

may deem that argument waived on appeal[.]”). Nevertheless, considering the leniency granted to pro se plaintiffs 

like Dr. Baker, we will consider the merits of his argument 

that the district court erred by not considering these 

sources of law. See McZeal v. Sprint Nextel Corp., 501 F.3d 

1354, 1356 (Fed. Cir. 2007) (we may grant pro se litigants 

“leeway on procedural matters”). We consider each argument in turn. 

First, Dr. Baker argues the district court erred by not 

addressing his Bivens claim. Appellant’s Br. 2. “In Bivens, 

the Supreme Court held that a party may, under certain 

circumstances, bring an action for violations of 

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10 BAKER v. RAIMONDO

constitutional rights against Government officials in their 

individual capacities.” Brown v. United States, 105 F.3d 

621, 624 (Fed. Cir. 1997). Here, Dr. Baker sued the Secretary of Commerce and the USPTO Director in their official 

capacities. See SAppx. 1 (noting the complaint was filed 

against defendants in their official capacities); see also 

SAppx. 6–8, 29–32, 34 (including in list of defendants the 

“Secretary of Commerce” and “Director of USPTO,” among 

other official titles). A Bivens action, however, may not be 

brought against a federal employee in his official capacity. 

Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002) (“[A] Bivens

action does not lie against either agencies or officials in 

their official capacity.”). Accordingly, the court did not err

in declining to consider Dr. Baker’s Bivens claim.

Second, Dr. Baker argues the district court should have 

discussed his assertion of three criminal statutes—

18 U.S.C. §§ 242, 1001, and 1519. Appellant’s Br. 2. None 

of these criminal statutes, however, provides Dr. Baker a 

cause of action. In other words, Dr. Baker may not file a 

civil case for the alleged violation of a criminal statute. See, 

e.g., Cort v. Ash, 422 U.S. 66, 79–80 (1975) (a “bare criminal 

statute,” with no indication of civil enforcement, does not 

give rise to a private cause of action). We thus find no error 

in the district court declining to consider these claims.

Finally, Dr. Baker argues the trial court erred by not 

considering 5 C.F.R. § 2635.101. Appellant’s Br. 2. This 

federal regulation outlines the ethical obligations that 

must be upheld by employees of the Executive Branch. The 

same subpart of those regulations, however, specifically 

states that it does not create a private cause of action, i.e., 

Dr. Baker cannot rely on it to pursue his case against the 

Government. See § 2635.106(c) (“A violation of this part . . . 

does not create any right or benefit . . . enforceable at law 

by any person against the United States, its agencies, its 

officers or employees, or any other person.”). Thus, the 

court did not err in declining to consider this claim.

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BAKER v. RAIMONDO 11

Accordingly, we determine that the Eastern District of 

Virginia did not err in declining to consider these various 

sources of law presented by Dr. Baker. We have considered 

Dr. Baker’s remaining arguments and find them unpersuasive.

CONCLUSION

For the above reasons, we affirm the judgments of the 

Eastern District of Virginia dismissing Dr. Baker’s complaints for lack of subject matter jurisdiction. 

AFFIRMED

COSTS

No costs. 

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