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# QCourt of jf 

# eberal QCiaims No. 17-1061C (Pro Se) (Filed: November 13, 2017 

## INot for Publication)

MIN YU XIAO, Plaintiff,

v. 

### THE UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) )

### ~~~~**~~~ ~~~~~~~~-)**  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 plaintiffMin 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 speakEnglish

." He appears to have used a professional translation service for at least part ofhis 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 USPTO 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 ofsubject matterjurisdiction, 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 oflaw providing forjurisdiction 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 1048In determining subject matterjurisdiction, the court accepts as true all undisputed facts in the pleadings and draws all reasonable inferences in favor ofthe plaintiff. See Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). The court may "inquire intojurisdictional facts" to determine whether it hasjurisdiction. 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 thatjurisdictional 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 meetjurisdictional requirements" (internal quotation and citation omitted)). The plaintiffbears the burden ofestablishing subject matter jurisdiction by a preponderance ofthe 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 ofFederal Claims the power "to render judgment upon any claim against the United States founded either upon the Constitution, or any Act ofCongress or any regulation ofan 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 ajurisdictional 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 oflaw that creates the right to recovery ofmoney damages against the United States" (citation omitted)). Further, the Court ofFederal Claims has only limited power to provide equitable relief. See 28 U.S.C. § 149l(a)(2). Specifically, the Court ofFederal Claims lacks the power to grant equitable reliefunless such reliefis "an incident ofand collateral to a moneyjudgment." 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 thejudgment, the court may, as an incident ofand collateral to any suchjudgment, issue orders directing restoration to office or position, placement in appropriate duty or retirement status, and correction ofapplicable records, and such orders may be issued to any appropriate official ofthe United States."). Mr. Min has not met his burden ofdemonstrating the Court'sjurisdiction. His complaint seeks the issuance ofa patent and the "punishment" ofan 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 thejurisdiction ofthe Court when not an incident ofand collateral to a moneyjudgment. 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 ifit appears his or her application is entitled to a patent, and for notification ofthe appropriate use and publication fees. It does not mandate

2the payment ofmoney by the federal govenunent. Moreover, although not mentioned by Mr. Min, 28 U.S.C. § 1498, thejurisdictional statute providing this court with authority to resolve allegations ofpatent 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 matterjurisdiction 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'sjurisdiction, 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 ofFederal Claims "lacksjurisdiction 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 matterjurisdiction over Mr. Min's complaint. The government' s motion to dismiss for lack of subject matterjurisdiction is 

### GRANTED and Mr. Min's complaint is 

### DISMISSED without prejudice. The Clerk is directed to enterjudgment accordingly. Each side shall bear its own costs.



### IT 

### IS SO ORDERED.

3 ELAINE D. KAPLAN Judge