N OTE : This d isposition is n onprecedential.



# United **S tates**  **Court of** 

**Ap peals**  **for t**  **he F**  **ederal Ci**  **rcuit**

______________________

MOSHE AVRAM PERRY , Pl aintif f

- Appellant

v.

UNITED S TA TES, Defendant

- Appellee

______________________

2020

- 2084

______________________ Appeal from t he Un ited St ates Court of F ederal Claims in No. 1: 19

- cv

- 01797

- MHS, J udge Matthew H

. Solo mson.

______________________

Decided: July 1 3

, 2021

______________________

M ICHAEL P ERRY , West Hills , CA, pro se

.

I GOR H ELMAN , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant -appellee.

______________________

P ER C URIAM

. Moshe Avram P erry a ppeals f rom t he final decision of the United St ates C ourt of F ederal Claims d ismissing h is Case: 20-2084 Document: 68 Page: 1 Filed: 07/13/2021PERRY v. US 2

complaint for lack of jurisdiction under Rule 12(b)(1) of the Rules of the U.S. Court of Federal Claims (RCFC) and for failure to state a claim under RCFC 12(b)(6)

. For the reasons explained below, we affirm.

B ACKGROUND On November 20, 2019, Mr. Perry filed a c omplaint in the United States Court of Federal Claims asserting that he was entitled to relief for certa in actions taken by the United States Patent and Trademark Office (USPTO)

. The allegations in Mr. Perry’s complaint largely relate d to the USPTO’s examination and rejection of three of his patent applications.
Specifically, Mr. Perry asserted: (1) the USPTO denied him an impartial examination of his patent applications; (2) the USPTO violated his constitutional rights to due process and to just compensation for the taking of his property by not granting his patent applicatio ns; (3) the USPTO’s actions in determining Mr. Perry’s applications to have been abandoned were undertaken in bad faith; (4) he was entitled to specific relief , i.e., the grant of his patent applic ations; (5) the USPTO took his property rights by publishin g his patent application when he had asked that it not be published; (6) the USPTO violated his rights

, P atent O ffice regulations, the Administrative Procedure Act (APA) , and the Due Process Clause of the Fifth Amendment to the U.S. Constitution

, all of wh ich require d the trial court to set aside the USPTO’s actions; and (7) he was entitled to a writ of mandamus compelling the USPTO to conduct a fair, impartial, and timely examination of his applications under the APA

. As to the fees collected by the USPTO for the examination of his applications, Mr. Perry assert ed : (1) the USPTO acted in bad faith and violated his constitutional and statutory rights in requiring the payment of fees; and (2) the USPTO’s acceptance of these fees was arbitrary, capricious, a n abuse of discretion, or otherwise not Case: 20-2084 Document: 68 Page: 2 Filed: 07/13/2021PERRY v. US 3

in accordance with the law

, contrary to constitutional right, power, privilege, or immunity, and was inequitable.

The Court of Federal Claims construed portions of Mr. Perry’s complaint as claiming money damages un der the Tucker Act and pursuant to the Takings Clause of the Fifth Amendment of the U.S. Constitution

— claims within its jurisdiction. See Perry v. United States , 149 Fed. Cl. 1 (2020)

. It also construed other portions of his complaint as requests for : (1) compensation pursuant to the Federal Tort Claims Act (FTCA); (2) declaratory and injuncti ve relief pursuant to the APA and the Declarator y Judgment Act; and (3) remedies pursuant to other civil and crim inal
statutes

— claims not within its jurisdiction

. As to the claims that could reasonably fall under the Tucker Act and pursuant to the Takings Clause , the Court of Federal Claims separated Mr. Perry’s claims into three groupings: (1) contract claims; (2) money

- mandating claims; and (3) illegal

- exaction claims. First, the trial court construed Mr. Perry’s complaint regarding his submission of a patent application to the USPTO as a contention that he formed a binding agreement with the USPTO. The trial
court ultimately concluded that his alleged submission of a patent application did not constitute a contract claim within its jurisdiction because no facts were alleged that suggested the existence of an express or implied

- in

- fact
contract

. Rather, at be st
, his submission could be construed as an implied

- in

- law contract, which falls outside of the trial court ’ s jurisdiction. Alternatively, the trial court determined that Mr. Perry failed to state a claim upon which relief could be granted because he fail ed to allege facts sufficient to demonstrate that he and the United States had a mutual intent to contract, that the re was a legally binding offer or acceptance, or that there was any government official with actual authority to bind the United States in contract with Mr. Perry. Case: 20-2084 Document: 68 Page: 3 Filed: 07/13/2021PERRY v. US 4

Second, the trial court construed Mr. Perry’s takings claims as alleging the violation of a statute or regulation that mand ates the payment of money. It determined that it did not have jurisdiction over these claims because Mr. Perry failed to concede validity of the government action (the publication of his patent application)

— a requirement for a plaintiff alleging a takings claim before the Court of Federal Claims

. It also determined that it did not have jurisdiction over the claims be cause Mr. Perry made no factual allegations that would satisfy the requirements of a takings claim , i.e., “Mr. Perry’s allegations do not ide ntify what property right, if any

, was taken by the government or how the USPTO indeed ha[d] ‘taken’ any such property

. ” Perry , 149 Fed. Cl. at 22 (citation omitted)

. Alternatively, the trial court concluded that even if it did have jurisdiction, Mr. Per ry failed to state a claim upon which relief could be granted because he did not identify arecognized property interest or demonstrate that the government somehow interfered with that property interest.
Third, the trial court construed Mr. Perry’s claim t hat the USPTO violated his rights by requiring payment of fees

as an illegal

- exaction claim. It then determined that Mr. Perry failed to allege facts sufficient to support such a claim that would vest it with jurisdiction over the claim. It also conclude d that Mr. Perry failed to state a claim upon which relief could be granted because he did not allege facts showing that: (1) money was taken by the government and (2) the exaction violated a provision of the Constitution, a statute, or a regulation.
Regarding Mr. Perry’s FTCA claims, APA claims, requests for declaratory and injunctive relief, and request for mandamus relief

— the trial court explained that it lacked jur isdiction to hear such claims. Though the Court of Federal Claims does possess jurisdiction over certain patent

related claims like patent infringement claims against the government , the trial court explained that nowhere did Mr. Perry allege facts that w ould support such a patent Case: 20-2084 Document: 68 Page: 4 Filed: 07/13/2021PERRY v. US 5

infringement claim. Additionally, as to Mr. Perry’s requests for injunctive relief and for a restraining order against the USPTO based on his allegations that the USPTO hacked into his email account and deleted his emails, the t rial court dismissed those claims for lack of jurisdiction and as frivolous.

Mr. P erry appeals to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).

D ISCUSSION On appeal, Mr. Perry challenge s each of the Court of Federal Claims’ holding s dismissing his claims

. 1 Construing Mr. Perry’s arguments liberally, Mr. Perry asserts that the trial court : (1) erred in dismissing his takings claims for lack of jurisdiction and for failure to state a claim; (2) erred in dismissing his non

- takings claims for lack of jurisdiction ; and (3) erred in dismissing his other claims as frivolous

. I

We review the Court of Federal Claims’ dismissal for lack of subject

- matter jurisdiction de novo , giving no deference to the trial court’s decision

. Alpine PCS, Inc. v. United States , 878 F.3d 1086, 1092 (Fed. Cir. 2018). We also “ review de novo a decision to dismiss a complaint for failureto state a claim under RCFC 12(b)(6), just as we do dismissals under F ederal Rule of Civil Procedure 12(b)(6). ”

1 Pending before this court is also Mr. Perry’s motionfor additional time to review and respond to the government’s filing of paper copies of its briefing. See Perry

v. United States , No. 20

- 2084, ECF No. 56. We note that this filing wa s not a new filing by the government, but rather a filing of the required paper copies of its briefing documents already provided to Mr. Perry. Perry

, ECF No. 20. Accordingly, this motion is denied. Case: 20-2084 Document: 68 Page: 5 Filed: 07/13/2021PERRY v. US 6

Indian Harbor Ins. Co. v. United States , 704 F.3d 949, 954 (Fed. Cir. 2013) (citing Cary v. United States , 552 F.3d 1373, 1376 (Fed.Cir.2009) )

. Like the trial court, we review the sufficiency of the complaint as a matter of law, accepting as true all non

- conclusory allegations of fact by the plaintiff and construing all inferences in the light most favorable to the plaintiff. Bradley v. Chiron Corp. , 136 F.3d 1317, 1321

– 22 (Fed. Cir. 1998). Finally, we review the Court of Federal Claims’ findings of fact relating to jurisdictional issues for clear error. Hymas v. U nited States

, 810 F.3d 1312, 1317 (Fed. Cir. 2016)

. A
We begin with Mr. Perry ’s cha llenges to the trial court’s dismissal of his contract, takings, and exaction claims

. First, he challenges the trial court’s dismissal of his contract claim for lack of jurisdiction because he failed
to a llege facts that suggest the existence of an expres s or implied

- in

- fact contract. Generally speaking, implied

- in

law contracts “ ‘ impose duties that are deemed to arise by operation of law ’ in order to prevent an injustice, ” i.e., one party has a legal duty to perform even where there is no meeting of the minds. Lumberm e ns Mut. Cas. Co. v. United States , 654 F.3d 1305, 1316 (Fed. Cir. 2011) (quoting City of Cincinnati v. United States , 153 F.3d 1375, 1377 (Fed. Cir. 1998)). Implied

- in

- fact contracts, on the other hand, are “founded upon a meeting of the minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in light of the surrounding circumstances, their tacit understanding.” Cincinnati , 153 F.3d at 1377 (quoting Baltimore & Ohio R.R. Co. v. United States , 261 U.S. 592, 597 (1923)).

Mr. Perry points to the USPTO online application system where he was obligated to abide by the USPTO “terms of use.” Though we appreciate Mr. Perry’s argument, abiding by t he “terms of use” in the USPTO online system does not result in an express or an implied

- in

- fact contract with Case: 20-2084 Document: 68 Page: 6 Filed: 07/13/2021PERRY v. US 7

the USPTO. Importantly, Mr. Perry makes no factual allegations that there was a meeting of the minds between himself and the agency. Rather, as the trial court correctlydetermined, it at best amounts to an allegation of an implied

- in

- law contract, which is not within the jurisdiction of the Court of Federal Claims. S ee Cincinnati , 153 F.3d at 137 7 (“Implied

- in

- fact contracts, which are within t he jurisdiction of the Court of Federal Claims, differ significantly from implied

- in

- law contracts

, which .

. . are outside the [court’s] jurisdiction

. . . . ”). Alternatively, because Mr. Perry failed to allege facts sufficient to demonstrate that he 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 to bind the United States in contract

, we conclude that the trial court also correctly dismissed this claim for failure to state a claim upon which relief could be granted

. We also liberally construe Mr. Perry ’s appellate arguments as challenging the trial court’s dismissal because he failed to concede the legitimacy of the g overnment action that effected the taking. To bring a t akings claim under the Tucker Act, a plaintiff must “identify[] a valid propertyinterest” under the Fifth Amendment and show a “governmental action [that] amounted to a compensable taking of that property interest.” Air Pegasus of D.C., Inc. v. United States , 424 F.3d 1206, 1213 (Fed. Cir. 2005). Additionally, a plaintiff seeking compensation for a taking “ must concede the validity of the government action which is the basis of the taking claim

. . . . ” Tabb Lakes, Ltd. v. United States, 10 F.3d 796 , 802 (Fed. Cir. 1993)

. Here, Mr. Perry maintains that the g overnment ’s action was not valid because it did not have the right to publish his patent application

, and

so we agree with the trial court that it lack ed jurisdiction to hear this claim.
Finally, we construe Mr. Perry ’s appeal as challenging the trial court’s dismissal of his illegal

- exaction claim for lack of jurisdiction and failure to state a claim. An “illegal Case: 20-2084 Document: 68 Page: 7 Filed: 07/13/2021PERRY v. US 8

exaction claim may be maintained when ‘the plaintiff has paid money over to the G overnment, directly or in effect,and seeks return of all or part of that sum’ that ‘was improperly paid, exacted, or taken from the claimant in contravention of the Constitution, a statute, or a regulation.’” Aerolineas Argentinas v. United States , 77 F.3d 1564, 1572

– 73 (Fed. Cir. 1996) (quoting Eastport S.S. Corp.

v. United States , 372 F.2d 1002, 1007 (Ct. Cl. 1967)). T he trial court found that Mr. Perry’s “bar e assertion that theUSPTO’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.” Perry , 149 Fed. Cl.
at 35. As his complaint failed to provide any specificity regarding the collection or handling of his funds by the USPTO, the trial court determined both that it lacked jurisdiction and that his complaint f ailed to state a claim. As Mr. Perry does not point us to anywhere in his complaint where he makes these relevant factual assertions, we agree with the trial court that it lacks jurisdiction to hear the claim and that Mr. Perry failed to state a claim upon which relief may be granted

. B

Mr. Perry next argues that the Court of Federal Claims erred when it found that it did not have jurisdiction over his claims arising from : (1) the alleged mishandling of his patent applications ; (2) certain claims sounding in tort or criminal law ; and (3) certain APA claims. Mr. Perry first challenge s the examination and denial of his patent applications. Because this is different from a claim of patent infringement, over which the Court of Federal Claims maintain s jurisdiction, we agree that the trial court correctly dismissed this claim for lack of jurisdiction

. Mr. Perry also challenge s the trial court’s dismissal of his claims alleging bad faith, fraudulent, and criminal Case: 20-2084 Document: 68 Page: 8 Filed: 07/13/2021PERRY v. US 9

conduct by the USPTO. Because Mr. Per ry’s claims of bad faith and fraudulent conduct are tort claims that are not within the jurisdiction of the Court of Federal Claims , we affirm the dismissal of these claims. S ee Brown v. United States , 105 F.3d 621, 623 (Fed. Cir. 1997) (the Court of Fede ral Claims lacks jurisdiction over claims “grounded upon fraud, which is a tort”); Blodgett v. United States

, 792 F. App’x 921, 925 (Fed. Cir. 2019) (determining that the Court of Federal Claims lacked jurisdiction over bad faith claims); Keene Corp. v. United States , 508 U.S. 200, 214 (1993). Similarly, because the Court of Federal Claims does not have jurisdiction to hear criminal violations, we agree that the trial court properly dismissed th o se claims as well

. See Sanders v. United States , 252 F.3d 1329, 1333

– 34 (Fed. Cir. 2001).
Next, Mr. Perry challenges the trial court ’ s dismissalof his APA claims requesting declaratory and injunctive rel ief and his request for mandamus relief

. We determine that t he Court of Federal Claims correctly concluded th at it does not have jurisdiction over APA claims. 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

. . . . ” )

. Likewise, the Court of Federal Claims lack s jurisdiction to hear Mr. Perry’s requests for declaratory judgment and mandamus relief premised on violations of the APA , and so the trial correctly dismissed those claims as well

. See Alvarado Hosp., LLC v. Price, 868 F.3d 983 , 987 (Fed. Cir. 2017) ( “ [T he] Court of Federal Claims does not have jurisdiction .

. . over .

. . claims seeking declaratory, injunctive, and mandamus relief

. . . . ” )

. II
Finally, Mr. Perry challenges the Court of Federal Claims’ determination that certain of his claims were fri volous. Specifically, Mr. Perry alleged that his email account was hacked by agents of the USPTO who deleted various emails he had received from the agency. The trial Case: 20-2084 Document: 68 Page: 9 Filed: 07/13/2021PERRY v. US 10

court first dismissed this claim as failing to plead any fact s , which if proven would e ntitle him to a money judgment. It also dismissed this claim as frivolous, explaining that it

“ must dismiss a claim as frivolous if the alleged facts present ‘fantastic’ or ‘delusional’ scenarios.” Perry

, 149 Fed. Cl. at 36 (quoting Taylor v. United States , 568 F. App’x 890, 891 (Fed. Cir. 2014))

. On appeal , Mr. Perry again asserts without any support that his email account was hacked by representatives of the USPTO

, but he also adds that the trial court judge covered up and intentionally o mitted relevant information on the inventive features of Mr. Perry’s alleged invention, and that the Court of Federal Claims intentionally replaced the judge initially assigned to his case with a biased judge

. Mr. Perry does not , however, provide

any fact ual support for these allegations

. T he Court of Federal Claims has the discretion to dismiss claims it determined to be frivolous

. Denton v. Hernandez, 504 U.S. 25, 33 (1992) (stating “ frivolousness is a decision entrusted to the discretion of the court ” ) . We discern no abuse of discretion in the trial court’s determination. Given the lack of any evidentiary support for Mr. Perry’s implausible claims

, we determine that the trial
court reasonably exercised its discretion in dismissing these claims as frivolous.

C ONCLUSION

We have considered Mr. Perry’s remaining arguments and are unpersuaded. Accordingly, we affirm the dismissal of Mr. Perry’s complaint by the Court of Federal Claims

. AFFIRMED

C OSTS

No costs. Case: 20-2084 Document: 68 Page: 10 Filed: 07/13/2021