Perry v. United States

Case: 20-2084 Document: 68 Page: 1 Filed: 07/13/2021

NOTE: This disposition is nonprecedential.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 Di-
vision, 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
Case: 20-2084 Document: 68 Page: 2 Filed: 07/13/2021

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 rea-
sons 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 pro-
cess 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 appli-
cations; (5) the USPTO took his property rights by publish-
ing his patent application when he had asked that it not be
published; (6) the USPTO violated his rights, Patent Office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, im-
partial, 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 constitu-
tional and statutory rights in requiring the payment of
fees; and (2) the USPTO’s acceptance of these fees was ar-
bitrary, capricious, an abuse of discretion, or otherwise not
Case: 20-2084 Document: 68 Page: 3 Filed: 07/13/2021

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 re-
lief 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 con-
strued 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.
Case: 20-2084 Document: 68 Page: 4 Filed: 07/13/2021

4 PERRY v. US

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 ac-
tion (the publication of his patent application)—a require-
ment 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 iden-
tify what property right, if any, was taken by the govern-
ment or how the USPTO indeed ha[d] ‘taken’ any such
property.” Perry, 149 Fed. Cl. at 22 (citation omitted). Al-
ternatively, 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 gov-
ernment 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, re-
quests 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 Fed-
eral 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 would support such a patent
Case: 20-2084 Document: 68 Page: 5 Filed: 07/13/2021

PERRY v. US 5

infringement claim. Additionally, as to Mr. Perry’s re-
quests 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 ju-
risdiction 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 Constru-
ing 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 defer-
ence to the trial court’s decision. Alpine PCS, Inc. v. United
States, 878 F.3d 1086, 1092 (Fed. Cir. 2018). We also “re-
view de novo a decision to dismiss a complaint for failure
to state a claim under RCFC 12(b)(6), just as we do dismis-
sals 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 govern-
ment’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 ra-
ther a filing of the required paper copies of its briefing doc-
uments already provided to Mr. Perry. Perry, ECF No. 20.
Accordingly, this motion is denied.
Case: 20-2084 Document: 68 Page: 6 Filed: 07/13/2021

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, accept-
ing as true all non-conclusory allegations of fact by the
plaintiff and construing all inferences in the light most fa-
vorable 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 juris-
dictional 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-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. 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 sys-
tem where he was obligated to abide by the USPTO “terms
of use.” Though we appreciate Mr. Perry’s argument, abid-
ing by the “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: 7 Filed: 07/13/2021

PERRY v. US 7

the USPTO. Importantly, Mr. Perry makes no factual al-
legations 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 im-
plied-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 ju-
risdiction of the Court of Federal Claims, differ signifi-
cantly 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 con-
tract, that the parties exchanged any offer and acceptance,
or that there was any government official with actual au-
thority 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 argu-
ments 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 “govern-
mental 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 main-
tains 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
Case: 20-2084 Document: 68 Page: 8 Filed: 07/13/2021

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 im-
properly paid, exacted, or taken from the claimant in con-
travention 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 im-
proper) constitutes a conclusory legal characterization, un-
supported 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 re-
garding the collection or handling of his funds by the
USPTO, the trial court determined both that it lacked ju-
risdiction 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 appli-
cations. 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 cor-
rectly 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
Case: 20-2084 Document: 68 Page: 9 Filed: 07/13/2021

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 Fed-
eral 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 re-
lief 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 declara-
tory 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 de-
claratory, injunctive, and mandamus relief . . . .”).
II
Finally, Mr. Perry challenges the Court of Federal
Claims’ determination that certain of his claims were friv-
olous. Specifically, Mr. Perry alleged that his email ac-
count 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: 10 Filed: 07/13/2021

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 pre-
sent ‘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 rel-
evant information on the inventive features of Mr. Perry’s
alleged invention, and that the Court of Federal Claims in-
tentionally 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 dis-
miss claims it determined to be frivolous. Denton v. Her-
nandez, 504 U.S. 25, 33 (1992) (stating “frivolousness is a
decision entrusted to the discretion of the court”). We dis-
cern no abuse of discretion in the trial court’s determina-
tion. 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.