NOTE: This disposition is nonprecedential. 

United States Court of Appeals

for the Federal Circuit

______________________ 

MOSHE AVRAM PERRY,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2020-2084

______________________ 

Appeal from the United States Court of Federal Claims 

in No. 1:19-cv-01797-MHS, Judge Matthew H. Solomson. 

______________________ 

Decided: July 13, 2021 

______________________ 

MICHAEL PERRY, West Hills, CA, pro se. 

IGOR HELMAN, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, 

DC, for defendant-appellee. 

______________________ 

PER CURIAM. 

Moshe Avram Perry appeals from the final decision of 

the United States Court of Federal Claims dismissing his 

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2 PERRY v. US

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.

BACKGROUND

On November 20, 2019, Mr. Perry filed a complaint in 

the United States Court of Federal Claims asserting that 

he was entitled to relief for certain actions taken by the 

United States Patent and Trademark Office (USPTO). The 

allegations in Mr. Perry’s complaint largely related 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 applications; (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 applications; (5) the USPTO took his property rights by publishing his patent application when he had asked that it not be 

published; (6) the USPTO violated his rights, Patent Office 

regulations, the Administrative Procedure Act (APA), and 

the Due Process Clause of the Fifth Amendment to the U.S.

Constitution, all of which required 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 asserted: 

(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, an abuse of discretion, or otherwise not 

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PERRY 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 under 

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 injunctive relief pursuant to the APA and the Declaratory Judgment 

Act; and (3) remedies pursuant to other civil and criminal 

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 best, 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 failed to allege

facts sufficient to demonstrate that he and the United 

States had a mutual intent to contract, that there 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. 

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Second, the trial court construed Mr. Perry’s takings 

claims as alleging the violation of a statute or regulation 

that mandates 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 because Mr. Perry made 

no factual allegations that would satisfy the requirements 

of a takings claim, i.e., “Mr. Perry’s allegations do not identify 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. Perry failed to state a claim upon 

which relief could be granted because he did not identify a 

recognized property interest or demonstrate that the government somehow interfered with that property interest.

Third, the trial court construed Mr. Perry’s claim that 

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 concluded 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 

jurisdiction to hear such claims. Though the Court of Federal Claims does possess jurisdiction over certain patentrelated claims like patent infringement claims against the 

government, the trial court explained that nowhere did 

Mr. Perry allege facts that would support such a patent

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PERRY 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 trial court dismissed those claims for lack of jurisdiction and as frivolous.

Mr. Perry appeals to this court. We have jurisdiction 

pursuant to 28 U.S.C. § 1295(a)(3). 

DISCUSSION

On appeal, Mr. Perry challenges each of the Court of 

Federal Claims’ holdings 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 failure 

to state a claim under RCFC 12(b)(6), just as we do dismissals under Federal Rule of Civil Procedure 12(b)(6).” 

1 Pending before this court is also Mr. Perry’s motion 

for 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 was 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.

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6 PERRY v. US

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. United States, 

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

A

We begin with Mr. Perry’s challenges 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 allege facts that suggest the existence of an express or 

implied-in-fact contract. Generally speaking, implied-inlaw 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. Lumbermens 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 the “terms of use” in the USPTO online system does 

not result in an express or an implied-in-fact contract with 

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PERRY 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 correctly 

determined, 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. See Cincinnati, 153 F.3d at 

1377 (“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 . . . .”). 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 government action 

that effected the taking. To bring a takings claim under 

the Tucker Act, a plaintiff must “identify[] a valid property 

interest” 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 government’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 lacked 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 

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8 PERRY v. US

exaction claim may be maintained when ‘the plaintiff has 

paid money over to the Government, 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)). The 

trial court found 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.” 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 failed 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 

challenges 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 

maintains jurisdiction, we agree that the trial court correctly dismissed this claim for lack of jurisdiction. 

Mr. Perry also challenges the trial court’s dismissal of 

his claims alleging bad faith, fraudulent, and criminal 

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PERRY v. US 9

conduct by the USPTO. Because Mr. Perry’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. See Brown v. United 

States, 105 F.3d 621, 623 (Fed. Cir. 1997) (the Court of Federal 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 those 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 dismissal 

of his APA claims requesting declaratory and injunctive relief and his request for mandamus relief. We determine 

that the Court of Federal Claims correctly concluded that 

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 

lacks 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) (“[The] 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 frivolous. 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 

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10 PERRY v. US

court first dismissed this claim as failing to plead any facts, 

which if proven would entitle 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 omitted 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 factual support for these allegations. 

The 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. 

CONCLUSION

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

COSTS

No costs.

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