ORIGINAL 

Jfn tbe mtniteb ~tates QCourt of jf eberal QCiaims 

No. 17-1061C (Pro Se) 

(Filed: November 13, 2017 I Not for Publication) 

MIN YU XIAO, 

Plaintiff, 

v. 

THE UNITED STATES OF AMERICA, 

Defendant. 

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Min Yu Xiao, Flushing, NY, Pro Se. 

Keywords: Subject Matter Jurisdiction; 

Tucker Act; Equitable Relief; Patents. 

FILED 

NOV 1 3 20t7 

U.S. COURT OF 

FEDERAL CLAIMS 

Sosun Bae, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of 

Justice, Washington, DC, for Defendant, with whom were Tara K. Hogan, Assistant Director, 

and Robert E. Kirschman, Jr., Director. 

OPINION AND ORDER 

KAPLAN, Judge. 

Pro se plaintiff Min Yu Xiao filed a complaint in this court on August 3, 2017. In it, Mr. 

Min states that he is an "83-year-old ... U.S. Citizen [who] does not speak English." He appears 

to have used a professional translation service for at least part of his complaint. It nevertheless 

remains difficult to understand, but appears to focus primarily upon a patent application Mr. Min 

submitted to the U.S. Patent and Trademark Office (USPTO) in 2012. 

According to Mr. Min, he never received any response from the USPTO after submitting 

his application. When he followed up with the office in 2014, he was told that the US PTO had 

mailed him a letter requesting that he pay the patent application fee. Mr. Min alleges that he 

never received any letter, but that following that conversation, he paid the required application 

fee. Despite doing so, Mr. Min alleges that the USPTO never issued him a patent certificate and 

that a patent examiner threatened to "forcibly change[]" Mr. Min's design. He asks that the Court 

"issue [the] patent certificate" and "punish" the patent examiner who allegedly threatened Mr. 

Min. 

On September 28, 2017, the government filed a motion to dismiss for lack of subject 

matter jurisdiction, or, in the alternative, for failure to state a claim. It primarily argues that Mr. 

Min does not seek money damages from the federal government and that he has not identified 

any substantive source of law providing for jurisdiction in this court. Def.' s Mot. to Dismiss at 

4- 5, Docket No. 5. Mr. Min did not file any response. 

7017 1450 DODO 1346 1048 
In determining subject matter jurisdiction, the court accepts as true all undisputed facts in 

the pleadings and draws all reasonable inferences in favor of the plaintiff. See Trusted 

Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). The court may "inquire 

into jurisdictional facts" to determine whether it has jurisdiction. Rocovich v. United States, 933 

F.2d 991, 993 (Fed. Cir. 1991). It is well established that complaints that are filed by prose 

plaintiffs, like this one, are held to "less stringent standards than formal pleadings drafted by 

lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Nonetheless, even prose plaintiffs must 

persuade the Court that jurisdictional requirements have been met. Bernard v. United States, 59 

Fed. CL 497, 499, affd, 98 F. App'x 860 (Fed. Cir. 2004); see also Zulueta v. United States, 553 

F. App'x 983, 985 (Fed. Cir. 2014) ("the leniency afforded to a prose litigant with respect to 

mere formalities does not relieve the burden to meet jurisdictional requirements" (internal 

quotation and citation omitted)). The plaintiff bears the burden of establishing subject matter 

jurisdiction by a preponderance of the evidence. Brandt v. United States, 710 F.3d 1369, 1373 

(Fed. Cir. 2013); see also Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. 

Cir. 1988). 

The Tucker Act grants the United States Court of Federal Claims the power "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)(l). It serves as a waiver of sovereign immunity and a jurisdictional 

grant, but it does not create a substantive cause of action. Jan's Helicopter Serv., Inc. v. Fed. 

Aviation Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008). A plaintiff, therefore, must establish 

that "a separate source of substantive law ... creates the right to money damages." Id. (quoting 

Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en bane in relevant part)); Rick's 

Mushroom Serv., Inc. v. United States, 521F.3d1338, 1343 (Fed. Cir. 2008) (stating "plaintiff 

must look beyond the Tucker Act to identify a substantive source of law that creates the right to 

recovery of money damages against the United States" (citation omitted)). 

Further, the Court of Federal Claims has only limited power to provide equitable relief. 

See 28 U.S.C. § 149l(a)(2). Specifically, the Court of Federal Claims lacks the power to grant 

equitable relief unless such relief is "an incident of and collateral to a money judgment." James 

v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998) (quotation omitted); see also 28 U.S.C, § 

1491 (a)(2) ("To provide an entire remedy and to complete the relief afforded by the judgment, 

the court may, as an incident of and collateral to any such judgment, issue orders directing 

restoration to office or position, placement in appropriate duty or retirement status, and 

correction of applicable records, and such orders may be issued to any appropriate official of the 

United States."). 

Mr. Min has not met his burden of demonstrating the Court's jurisdiction. His complaint 

seeks the issuance of a patent and the "punishment" of an individual government employee. But 

the Court has no authority to issue patents, and any order requiring the USPTO to do so would be 

purely equitable relief, outside the jurisdiction of the Court when not an incident of and collateral 

to a money judgment. And Mr. Min does not seek money damages or identify any source of 

substantive law providing for the same. While attachments to his complaint reference 35 U.S.C. 

§ 151, that statute provides for notice to an applicant if it appears his or her application is entitled 

to a patent, and for notification of the appropriate use and publication fees. It does not mandate 

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the payment of money by the federal govenunent. Moreover, although not mentioned by Mr. 

Min, 28 U.S.C. § 1498, the jurisdictional statute providing this court with authority to resolve 

allegations of patent infringement against the United States, does not provide the Comt with 

jurisdiction in this case because Mr. Min does not allege that he received a patent (in fact 

obtaining a patent appears to be the primary motivation for his lawsuit), nor does he allege that 

the government infringed the same. 

As to the patent examiner who allegedly threatened to alter Mr. Min's application, the 

Court lacks subject matter jurisdiction over all defendants other than the United States. United 

States v. Sherwood, 312 U.S. 584, 588 (1941). In any event, the unclear "punishment" that Mr. 

Min seeks is not within the Court's jurisdiction, as it would appear to sound in tmt or seek 

criminal prosecution. See Brown v. United States, 105 F.3d 621, 623 (Fed. Cir. 1997) (noting 

that the Court of Federal Claims "lacks jurisdiction over tort actions"); Joshua v. United States, 

17 F.3d 378, 379- 80 (Fed. Cir. 1994) (affirming, among other things, lack of jurisdiction over 

criminal statutes). 

Accordingly, the Court lacks subject matter jurisdiction over Mr. Min's complaint. The 

government's motion to dismiss for lack of subject matter jurisdiction is GRANTED and Mr. 

Min's complaint is DISMISSED without prejudice. The Clerk is directed to enter judgment 

accordingly. Each side shall bear its own costs. 

IT IS SO ORDERED. 

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ELAINE D. KAPLAN 

Judge