          In the United States Court of Federal Claims
                                        No. 19-1797C

                                     (Filed: June 17, 2020)

                                               )
    MOSHE AVRAM PERRY,                         )   RCFC 12(b)(1); RCFC 12(b)(6); Tucker
                                               )   Act claims; illegal exaction claims;
                       Plaintiff,              )   money-mandating claims; takings
                                               )   claims; implied-in-law contract claims;
           v.                                  )   patent claims, 28 U.S.C. § 1498(a);
                                               )   35 U.S.C. § 122(a); RCFC 41(b);
    THE UNITED STATES,                         )   frivolous complaint and filings,
                                               )   28 U.S.C. § 1915(e)(2)(B)(i).
                       Defendant.              )
                                               )


Moshe A. Perry, West Hills, CA, pro se.

Igor Hellman, United States Department of Justice, Civil Division, Washington, DC, for
defendant. With him on the briefs were Joseph H. Hunt, Assistant Attorney General,
Civil Division, Robert E. Kirschman, Jr., Director, and L. Misha Preheim, Assistant
Director, Commercial Litigation Branch, Civil Division, United States Department of
Justice, Washington, DC.

                                    OPINION AND ORDER

SOLOMSON, Judge.

       On November 20, 2019, Plaintiff, Mr. Moshe Avram Perry, filed a Complaint
(“Compl.”) in this Court, initiating the above-captioned action against Defendant, the
United States. Although Mr. Perry’s voluminous 95-page Complaint is often quite
difficult to follow, its thrust is that he is entitled to relief from this Court for actions
taken by the United States Patent and Trademark Office (“USPTO”) stemming from its
examinations and subsequent denials of three patent applications that Mr. Perry
allegedly submitted to the USPTO. 1


1 The applications Mr. Perry identifies are: No. 14/794,807, No. 15/382,598, and No. 15/709,307.
See Compl. ¶ 1. A search of the USPTO’s patent application database shows that application
No. 15/382,598 purports to “address[ ] waste of liquids in all sorts of bottles/containers made
from plastic, glass, metals [sic] bottles, containers, dispensers, caps which use pumping action
to expel all sorts of liquids.” See U.S. Patent Application No. 15/382,598, Publication
       For the reasons explained below, the Court grants the government’s motion to
dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the United States Court
of Federal Claims (“RCFC”). To the extent any of Mr. Perry’s claims fall within this
Court’s jurisdiction, he fails to allege sufficient facts — as opposed to conclusory legal
assertions — which state a claim upon which relief can be granted.

I.        Mr. Perry’s Complaint

        In summary, Mr. Perry alleges that: (1) the USPTO “unlawfully denied [him an]
impartial examination of the Expired Applications in accordance with the Patent Act
and USPTO rules and procedures” (Compl. ¶ 302); (2) the USPTO “violated [his]
constitutional rights to due process and to just compensation for a taking of his
property” — referencing his various patent applications (Compl. ¶ 303); (3) “the
USPTO’s actions in abandoning Mr. Perry’s Applications were undertaken in bad faith”
(Compl. ¶ 305); (4) he is “entitled to specific relief: issuing a patent in Application
No.[]14/794,807; and fair examinations of applications 15/382,598, and
No. []15/709,307” (Compl. ¶ 306); (5) in “preventing any of Mr. Perry’s patent
applications from issues [sic] as patents, the USPTO took Mr. Perry’s property rights by
publishing a non-publish application No. []15/382,598” and that he “is therefore
entitled to just compensation for the USPTO’s taking of his property” (Compl. ¶¶ 311-
312); (6) the USPTO’s “actions violate [Mr. Perry’s] rights under the Patent Act, PTO
regulations, the Administrative Procedure Act, and the Due Process Clause of the Fifth
Amendment to the United States Constitution” (Compl. ¶ 318) for which he is “entitled
to orders setting aside these agency actions” (Compl. ¶¶ 320, 332); and (7) he is entitled
“to a writ of mandamus compelling Defendants . . . to conduct a fair, impartial, and
timely examination of his applications” (Compl. ¶¶ 335-339).

        Mr. Perry further asserts a claim based upon various fees the USPTO allegedly
collected from him “for examination-related activities.” Compl. ¶ 326. In that regard,
he alleges that: (1) “[t]he USPTO, acting in bad faith and in violation of Mr. Perry’s
constitutional and statutory rights under the Patent Act and APA, required Mr. Perry to
pay numerous fees” (Compl. ¶ 325); and (2) “[t]he USPTO’s assessment, acceptance,
and retention of [patent application] fees was arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law and also contrary to constitutional
right, power, privilege, or immunity, and was inequitable” (Compl. ¶ 327). 2 Mr. Perry
further maintains that he “is therefore entitled to specific relief” and requests that this


No. 20180235408 (published Aug 23, 2018) (Moshe Avram Perry, applicant), available at
http://appft.uspto.gov/netahtml/PTO/search-bool.html (last visited, Apr. 28, 2020). The
Court could not locate the other putative applications in the database. Regardless, neither the
subject matter nor the precise contents of Mr. Perry’s patent applications are relevant to the
Court’s resolution of the government’s pending motion to dismiss.
2
    The reference to the APA is to the Administrative Procedure Act. See Compl. ¶ 318.

                                                -2-
Court instruct the USPTO to “apply the fees to the patent applications and apply the
overage of the fees to the fees the USPTO claimed are owed.” Compl. ¶ 328.

       Based on the foregoing allegations and claims, Mr. Perry seeks a variety of
(mostly duplicative) relief, including: (1) “specific relief, in the form of granting the
three patents”; (2) an “award of just compensation for [the] taking of Mr. Perry’s
property”; (3) a “finding that USPTO improperly and inequitably accepted and retained
Mr. Perry’s fees for applications other than the abandoned applications”; (4) an “order
setting aside the USPTO’s actions adopting unlawful policies for the treatment of Mr.
Perry’s applications”; (5) a “writ of mandamus compelling [the USPTO] expeditiously
to conduct a fair, impartial, and timely examination of his three applications”; and (6) a
“finding that the USPTO improperly accepted and [retained] Mr. Perry’s fees for the
abandoned [a]pplications.” Complaint ¶ 354.

        In addition to claiming money damages under the Tucker Act and pursuant to
the Takings Clause of the Fifth Amendment of the U.S. Constitution — types of claims
over which this Court does possess jurisdiction, at least generally — Mr. Perry also seeks
relief quite clearly outside of this Court’s power to grant, including: (1) compensation
pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b); (2) declaratory
and injunctive relief pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §
706, and the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq.; and (3) remedies
pursuant to other civil and criminal statutes. Compl. ¶¶ 1, 60, 114, 304, 353.

        On February 3, 2020, the government filed a motion to dismiss all of the non-
takings claims alleged in Mr. Perry’s Complaint pursuant to RCFC 12(b)(1) for lack of
subject-matter jurisdiction, and the takings claim pursuant to RCFC 12(b)(6) for failure
to state a claim. ECF No. 11 (“Def. Mot.”). On March 9, 2020, Mr. Perry filed his
response to the government’s motion to dismiss (“Pl. Resp.”). 3 On March 26, 2020, the
government filed its reply brief. ECF No. 19 (“Def. Rep.”).

     For the reasons explained below, the government’s motion hereby is GRANTED,
and Mr. Perry’s Complaint is DISMISSED.




3 On March 6, 2020, Mr. Perry sought to file both his response to the motion to dismiss and an
“Application for a Preliminary and/or Permanent Injunction and Issue a Restraining Order
Against USPTO,” both of which the Court permitted to be filed, despite the Clerk of the Court’s
having identified filing defects. See ECF Nos. 15-17. For purposes of this opinion, the Court
treats Mr. Perry’s request for injunctive relief as part of his response to the government’s motion
to dismiss. Mr. Perry’s other attempted filings either were rejected or hereby are rejected for
failing to comply with this Court’s rules (and because the filings are generally duplicative of
each other). This decision thus resolves the government’s pending motion and Mr. Perry’s
motion for injunctive relief, and renders moot any of his subsequent, attempted filings.

                                               -3-
II.    The Jurisdiction Of The U.S. Court Of Federal Claims

        This Court has a duty to ensure that it has jurisdiction over any claim presented.
See, e.g., St. Bernard Parish Gov’t v. United States, 916 F.3d 987, 992-93 (Fed. Cir. 2019); see
RCFC 12(h)(3) (“If the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”). As a threshold matter, the United
States cannot be sued absent its consent in the form of a waiver of sovereign immunity.
See FDIC v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign immunity
shields the Federal Government and its agencies from suit.”). Accordingly, “except as
Congress has consented to a cause of action against the United States, ‘there is no
jurisdiction in the Court of [Federal] Claims more than in any other court to entertain
suits against the United States.’” United States v. Testan, 424 U.S. 392, 400 (1976)
(quoting United States v. Herwood, 312 U.S. 584, 587-588 (1941)). Generally, “the
jurisdiction of the Court of Federal Claims is defined by the Tucker Act, which gives the
court authority to render judgment on certain monetary claims against the United
States.” RadioShack Corp. v. United States, 566 F.3d 1358, 1360 (Fed. Cir. 2009). In
pertinent part, the Tucker Act provides:

              The United States Court of Federal Claims shall have
              jurisdiction 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)(1).

        Thus, the Tucker Act vests this Court with jurisdiction and waives the sovereign
immunity of the United States “[f]or actions pursuant to contracts with the United
States, actions to recover illegal exactions of money by the United States, and actions
brought pursuant to money-mandating statutes, regulations, executive orders, or
constitutional provisions[.]” Roth v. United States, 378 F.3d 1371, 1384 (Fed. Cir. 2004)
(defining three types of Tucker Act Claims). The Tucker Act, however, “does not create
a substantive cause of action[.]” Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir.
2005) (en banc). Moreover, “[n]ot every claim invoking the Constitution, a federal
statute, or a regulation is cognizable under the Tucker Act.” United States v. Mitchell,
463 U.S. 206, 216 (1983). With respect to “money-mandating” claims, in particular, a
statute — or other provision of law — creates a right capable of grounding a claim
within the waiver of sovereign immunity if, but only if, it “can fairly be interpreted as
mandating compensation by the Federal Government for the damage sustained.” Id. at
217 (quoting Testan, 424 U.S. at 400) (internal quotation marks omitted); see also Maine
Cmty. Health Options v. United States, 140 S. Ct. 1308, 1327 (2020); United States v. White
Mountain Apache Tribe, 537 U.S. 465, 472 (2003).

                                              -4-
         Courts treat a pro se plaintiff’s pleadings with less scrutiny and give them a more
liberal construction than pleadings prepared by counsel. See Castro v. United States, 540
U.S. 375, 381 (2003). “[E]ven pro se plaintiffs,” however, “must persuade the court that
[its] jurisdictional requirements have been met[.]” Hale v. United States, 143 Fed. Cl. 180,
184 (2019) (citing Bernard v. United States, 59 Fed. Cl. 497, 499 (2004), aff’d, 98 F. App’x
860 (Fed. Cir. 2004)). Mr. Perry has not persuaded this Court that it possesses
jurisdiction to entertain his claims. In the alternative, Mr. Perry has failed to state a
claim as a matter of law upon which relief can be granted.

III.   The Distinction Between RCFC 12(b)(1) And RCFC 12(b)(6) For Tucker Act
       Claims
       The question of when a claim should be dismissed for lack of jurisdiction
pursuant to RCFC 12(b)(1) — as opposed to for failure to state a claim pursuant to
RCFC 12(b)(6) — has engendered no small amount of confusion within this Circuit and
among litigants. 4 The Tucker Act’s language itself may be to blame. In a single
sentence, the Tucker Act appears to link inextricably the jurisdictional and merits
inquiries by vesting this Court with “jurisdiction to render judgment upon” particular
“claim[s] against the United States.” 28 U.S.C. § 1491(a)(1) (emphasis added). With
limited exceptions, the Tucker Act generally authorizes this Court only to decide
particular monetary claims against the United States: “actions pursuant to contracts . . .,
actions to recover illegal exactions of money . . ., and actions brought pursuant to
money-mandating” sources of law — i.e., the “claim[s]” over which this Court possesses
jurisdiction. Roth, 378 F.3d at 1384. The Court thus readily understands why, in any
given instance, the government might challenge — or why this Court might dismiss —
a complaint pursuant to either RCFC 12(b)(1) or 12(b)(6). 5




4See, e.g., Engage Learning, Inc. v. Salazar, 660 F.3d 1346, 1353 (Fed. Cir. 2011) (“Courts frequently
confuse or conflate the distinction between subject matter jurisdiction and the essential elements
of a claim for relief.”).
5 See Fisher, 402 F.3d at 1171–72 (“Separating the question of a federal court’s subject matter
jurisdiction over a cause from the question of what a plaintiff must prove in order to prevail in
the cause is, in many areas of the law, not a difficult matter: a specific statute sets the court’s
jurisdictional parameters; a separate statute or regulation or common law rule establishes the
right that allegedly has been breached. In Tucker Act jurisprudence, however, this neat division
between jurisdiction and merits has not proved to be so neat. In these cases, involving suits
against the United States for money damages, the question of the court’s jurisdictional grant
blends with the merits of the claim. This mixture has been a source of confusion for litigants
and a struggle for courts.”); Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679, 687 (Fed. Cir. 1992)
(“Confusion may arise when the factual allegations that constitute the cause of action include
allegations which are necessary to establish jurisdiction.”).

                                                 -5-
       The Federal Circuit, for its part, valiantly has tried to clarify the law, but
confusion persists. 6 Notwithstanding any suggestion to the contrary,7 there are
important implications that flow from dismissing a complaint for lack of jurisdiction as
opposed to for failure to state a claim: the latter is considered “on the merits” and
“usually carries res judicata effect, whereas a dismissal for lack of jurisdiction typically
does not.” Engage Learning, 660 F.3d at 1355. For this reason alone, there is a strong
incentive for litigants and the Court to understand the distinction and to get the
decision right, although that is easier said than done. Another important difference
between these two grounds for dismissal — and as relevant in this case — resides in
how the Court must analyze a complaint when resolving a motion to dismiss. But, to
fully understand this distinction, the Court must first recognize two categories of
jurisdictional attacks that a defendant in any court may assert: facial and factual.

        A facial jurisdictional attack “challenges whether the court’s subject-matter
jurisdiction was properly pleaded.” Steven S. Gensler & Lumen N. Mulligan, 1 Federal
Rules of Civil Procedure, Rules and Commentary, Rule 12 (Feb. 2020 Update) [hereinafter
Federal Rules & Commentary]; see also Crow Creek Sioux Tribe v. United States, 900 F.3d
1350, 1355 (Fed. Cir. 2018) (addressing “facial challenge”). A facial attack itself can take
two forms. A defendant either can “assert that the plaintiff has failed to plead
jurisdiction as required by Rule 8(a)(1)” or “assert that, while properly pleaded per Rule
8(a)(1), the allegations—even when assumed to be true—fail to establish jurisdiction
under the relevant statute or constitutional provision.” Federal Rules & Commentary.
Regarding facial attacks, the Federal Circuit has explained:

               [W]e join the majority of our sister circuits in holding that the
               Supreme Court’s “plausibility” requirement for facial
               challenges to claims under Rule 12(b)(6), as set out in Bell
               Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167

6 Spruill, 978 F.2d at 688 & n.11 (comparing cases and concluding that “[l]anguage in cases
decided in this court has not always been consistent with the basic principle[s] . . ., or with the
language of other Federal Circuit cases”).
7
 In some cases, the Federal Circuit has observed that the distinction between RCFC 12(b)(1) and
RCFC 12(b)(6) dismissals is meaningful, while in other instances the Federal Circuit has treated
any such error as harmless. Compare Engage Learning, 660 F.3d at 1355 (“Mastering the
distinction between a dismissal for lack of jurisdiction and a dismissal on the merits ‘is not
merely an intellectual exercise without practical utility.’” (quoting Do–Well Mach. Shop, Inc. v.
United States, 870 F.2d 637, 640 (Fed. Cir. 1989)), with Brodowy v. United States, 482 F.3d 1370,
1376 (Fed. Cir. 2007) (“Because the distinction between the two forms of dismissal has no
apparent practical effect in this case, however, we need not remand for purposes of correcting
the judgment in that respect.” (emphasis added) (citing Lewis v. United States, 70 F.3d 597, 603–
04 (Fed. Cir. 1995), Doe v. United States, 463 F.3d, 1314, 1325 (Fed. Cir. 2006), and Moden v. United
States, 404 F.3d 1335, 1340–41 (Fed. Cir. 2005)).

                                                -6-
              L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
              S. Ct. 1937, 173 L.Ed.2d 868 (2009), also applies to facial
              challenges to subject-matter jurisdiction under Rule 12(b)(1).

Crow Creek Sioux Tribe, 900 F.3d at 1354–55. Thus, “[t]hreadbare recitals of [claim]
elements . . ., supported by mere conclusory statements, do not suffice” to confer
jurisdiction. Id. (quoting Iqbal, 556 U.S. at 678).

        A factual attack, on the other hand, “challenges the truth of the jurisdictional
facts alleged in the complaint.” Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746,
747 (Fed. Cir. 1988). Once the government lodges a factual attack against a complaint
that purports to invoke the Court’s subject-matter jurisdiction, the burden shifts to the
plaintiff to “establish[] subject-matter jurisdiction by a preponderance of the evidence.”
Id. at 748. The Court “may consider relevant evidence in order to resolve the factual
dispute[,]” but must afford the plaintiff an “opportunity to be heard before dismissal is
ordered[.]” Id. at 747-48.

       None of these distinctions or burden-shifting procedures shed light, however, on
a fundamental question: when should the Court dismiss an apparently deficient
complaint pursuant to RCFC 12(b)(1) on jurisdictional grounds, instead of pursuant to
RCFC 12(b)(6) for failure to “state a claim upon which relief can be granted”? Applying
the Federal Circuit’s guidance to answer that question — particularly in the context of a
lengthy, confusing complaint — is not a self-executing, mechanical task. Accordingly,
this Court first sketches out the basic principles with respect to each Tucker Act claim
type, before turning to apply them in resolving the government’s pending motion to
dismiss. Roth, 378 F.3d at 1384.
       A.     Contract Claims

        The Federal Circuit has “held that jurisdiction under [the Tucker Act] requires no
more than a non-frivolous allegation of a contract with the government.” Engage
Learning, 660 F.3d at 1353 (emphasis added) (citing Lewis, 70 F.3d at 602, 604, and Gould,
Inc. v. United States, 67 F.3d 925, 929–30 (Fed. Cir. 1995)). In Gould, the contractor
alleged the existence of both an express and an implied-in-fact contract with the United
States. 67 F.3d at 929–30. The government argued that the Court lacked jurisdiction
because the plaintiff’s allegation of illegality voided the express contract and a United
States Supreme Court decision barred recovery on an alleged implied-in-fact contract.
Id. The Federal Circuit held that “the proper basis for such a dismissal, if it is in fact
warranted, is failure to state a claim upon which relief can be granted” given the
nonfrivolous allegations of a contract. Id. at 929 (“there is no question that [plaintiff’s]
complaint alleges the existence of an express contract”).




                                            -7-
       In Lewis, the Federal Circuit explained the test used to determine whether a
plaintiff’s complaint states a nonfrivolous allegation:

              [A] complaint alleging that the plaintiff has a right to relief on
              a ground as to which the court has jurisdiction raises a
              question within the court’s subject matter jurisdiction as long
              as the asserted basis of jurisdiction is not pretextual, i.e., as
              long as the jurisdictional ground asserted in the complaint
              does not “appear[ ] to be immaterial and made solely for the
              purpose of obtaining jurisdiction.”

70 F.3d at 603 (quoting The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913),
overruled on other grounds by Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1
(1983)). The Federal Circuit further explained:

              To be sure, the Supreme Court has stated that there may be
              instances in which a claim that is otherwise within the court’s
              jurisdiction is so insubstantial on its merits that a dismissal
              may be termed jurisdictional. In this century, however, the
              Court’s references to that exception to the general rule have
              often been unenthusiastic, and it may be that the exception is
              best viewed as a vestige of nineteenth-century practice that
              has no continuing vitality in the age of modern pleading.

Id. (citing cases, including Montana–Dakota Util. Co. v. Nw. Pub. Serv. Co., 341 U.S. 246,
249 (1951)). Accordingly, the Federal Circuit noted that “such jurisdictional dismissals
for frivolousness must be ‘confin[ed]’ to cases ‘that are very plain.’” Id. at 603-04
(quoting Hart v. B.F. Keith Vaudeville Exch., 262 U.S. 271, 274 (1923)).

        Thus, “the question of whether a contract exists” generally appears not to be “a
jurisdictional one,” unless, however, a plaintiff does “not plausibly allege the existence
of a contract.” Engage Learning, 660 F.3d at 1355. In that regard, this Court lacks
jurisdiction where a plaintiff’s allegations are “immaterial and made solely for the
purpose of obtaining jurisdiction.” Lewis, 70 F.3d at 603-04 (internal quotation omitted);
see Ibrahim v. United States, 799 F. App’x 865, 867 (Fed. Cir. 2020) (“A non-frivolous
allegation that a contract exists between a plaintiff and the United States is sufficient to
invoke the subject matter jurisdiction of the Claims Court, but dismissal may be proper
for lack of subject matter jurisdiction if the claim is wholly insubstantial and frivolous.”
(quoting Lewis, 70 F.3d at 602–04 (internal quotes omitted)).
       B.     Money-Mandating Claims

       For a money-mandating claim, “all that is required is a determination that the
claim is founded upon a money-mandating source [of law] and the plaintiff has made a

                                             -8-
nonfrivolous allegation that it is within the class of plaintiffs entitled to recover under
the money-mandating source.” Jan’s Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1309
(Fed. Cir. 2008). In Jan’s Helicopter, the Federal Circuit explained that the jurisdictional
pleading requirement “is satisfied when a plaintiff makes ‘a non-frivolous assertion that
[plaintiffs] are entitled to relief under the statute.’” Id. at 1307 n.8 (citing Brodowy, 482
F.3d at 1375); Brodowy, 482 F.3d at 1375 (“Where plaintiffs have invoked a money-
mandating statute and have made a non-frivolous assertion that they are entitled to
relief under the statute, we have held that the Court of Federal Claims has subject-
matter jurisdiction over the case.”).

         Senior Judge Bruggink helpfully summarized the proper inquiry, as follows:
“[i]f a statute or regulation does mandate the payment of money, it is sufficient to
trigger jurisdiction if plaintiff [also] shows that ‘he is within the class of plaintiffs
entitled to recover under the money-mandating source.’” Monzo v. United States, 2013
WL 6235608, at *3 (Fed. Cl. Nov. 27, 2013) (quoting Jan’s Helicopter, 525 F.3d at 1307); see
Brodowy, 482 F.3d at 1375. 8 But, “[t]he question of whether the claimant actually ‘falls
within the terms of the statute’ or regulation is a merits issue.” Monzo, 2013 WL
6235608, at *3 (emphasis added) (quoting Greenlee County v. United States, 487 F.3d 871,
876 (Fed. Cir. 2007) (internal quotation marks omitted)).

        Regarding takings claims, in particular, “[i]t is undisputed that the Takings
Clause of the Fifth Amendment is a money-mandating source for purposes of Tucker
Act jurisdiction.” Jan’s Helicopter, 525 F.3d at 1309 (citing Moden, 404 F.3d at 1341).
Thus, where a plaintiff “[1] allege[s] a taking [2] of their property [3] by the
government” and is “within the class of plaintiffs entitled to recovery if a takings claim
is established,” the Court of Federal Claims has subject-matter jurisdiction over the
plaintiff’s complaint. 525 F.3d at 1309. On the other hand, a complaint that “fails to
mention the Takings Clause or the Fifth Amendment at all” or that “fails to allege facts
sufficient to establish responsibility of the United States for [the] acts” or that is founded
upon the premise “‘that the United States has taken unlawful action’” is insufficient to
invoke this Court’s jurisdiction. Landreth v. United States, 797 F. App’x 521, 523 (Fed.
Cir. 2020) (quoting Moody v. United States, 931 F.3d 1136, 1142 (Fed. Cir. 2019)).
       C.      Illegal Exaction Claims

       With regard to illegal exactions, the Court cannot perceive any reason to depart
from the general rule that a plaintiff’s complaint must contain nonfrivolous factual
allegations that the plaintiff is entitled to recover money for the government’s

8See also Casa de Cambio Comdiv S.A., de C.V. v. United States, 291 F.3d 1356, 1361 (Fed. Cir. 2002)
(affirming Court of Federal Claims decision dismissing case for lack of jurisdiction where “the
regulations [at issue] are not money-mandating as to [plaintiff]”).

                                                -9-
purported improper action. See Harris v. United States, 2014 WL 10936253, at *1 (Fed. Cl.
Apr. 16, 2014) (dismissing illegal exaction claim for lack of subject-matter jurisdiction
based on a finding that “there [was] no nonfrivolous illegal exaction claim in this suit”);
cf. Reid v. United States, 2020 WL 2764753, at *19 (Fed. Cl. May 8, 2020) (denying motion
to dismiss illegal exaction claim based on alleged illegal actions of the Federal Housing
Finance Agency (“FHFA”), and finding that plaintiffs’ allegations “that the FHFA is
unconstitutionally structured” and that it “violat[ed] . . . its own regulations” are
“sufficient to establish . . . an illegal-exaction claim”).

                                          * * * *

       In sum, the Court reiterates that, in reviewing a plaintiff’s complaint, our
jurisdictional determination is not governed by the plaintiff’s characterization of its
claims and “[t]hreadbare recitals of [claim] elements . . ., supported by mere conclusory
statements” or frivolous allegations, do not suffice. Crow Creek Sioux Tribe, 900 F.3d at
1354–55. As Justice Holmes wrote: “if the plaintiff really makes a substantial claim
under an act of Congress there is jurisdiction whether the claim ultimately be held good
or bad.” Kohler Die Co., 228 U.S. at 25 (emphasis added). Where a claim fails to clear
even this low bar, the Court has no jurisdiction to decide the claim’s merits.

        The inescapable reality, however, is that there is no scientific bright line dividing
the question of jurisdiction from that of a failure to state a claim. Indeed, if there is such
a line, it is at the subatomic level and there is no judicial electron microscope up to the
task of rendering that line visible to the naked eye. Carter v. Homeward Residential, Inc.,
794 F.3d 806, 808 (7th Cir. 2015) (“[T]here is a sliding scale of substantiality, and at some
point on the scale a claim is actionable. No one has explained how that point is to be
determined. It remains indeterminate, a source of needless uncertainty.”). That the
dividing line is indeterminate, however, does not relieve this Court from its duty to
make such a judgment — a call at the plate — regarding whether a plaintiff has pleaded
sufficient facts to invoke Tucker Act jurisdiction or whether the complaint “should be
dismissed by the [trial] court on the merits[.]” Id. at 809.

       How frivolous — or how dependent on bare, conclusory legal assertions — must
a complaint be, in order to justify a dismissal for lack of jurisdiction? The Seventh
Circuit has provided a useful metaphor to answer that question:

              We once gave the example of a hypothetical dispute over
              bananas described by the parties as “securities” so that they
              could litigate their dispute in the federal courts under federal
              securities law. Congress would not have wanted the federal
              courts to waste their time with such a case, and the courts
              therefore have an independent duty to refuse to entertain it.

                                            - 10 -
Carr v. Tillery, 591 F.3d 909, 917 (7th Cir. 2010) (internal citation omitted) (discussing
Crowley Cutlery Co. v. United States, 849 F.2d 273, 277 (7th Cir. 1988)).

        Returning to this Court’s jurisdiction, the bottom line is that a plaintiff cannot
simply dress up a claim in Tucker Act clothes and vest this Court with jurisdiction. Just
as a plaintiff cannot invoke federal jurisdiction by asserting that bananas are securities,
so too a plaintiff cannot magically transform torts into government contracts or
otherwise recite a Tucker Act incantation to create jurisdiction where it does not exist.
Iqbal, 556 U.S. at 679 (allegations that are “no more than conclusions, are not entitled to
the assumption of truth”); Twombly, 550 U.S. at 555 (complaint must contain more than
mere statements providing “labels and conclusions” or “a formulaic recitation of the
elements of [jurisdiction]”); Crow Creek Sioux Tribe, 900 F.3d at 1354–55 (“’To survive a
motion to dismiss . . . a complaint must contain sufficient factual matter’ that would
plausibly establish . . . [jurisdiction, and] “’[t]hreadbare recitals of the elements . . .
supported by mere conclusory statements, do not suffice.’” (quoting Iqbal, 556 U.S. at
678)); Clark v. United States, 2014 WL 3728172, at *4 (Fed. Cl. 2014) (“[A]llegations of
federal government involvement which fail the standards of Twombly and Iqbal must be
dismissed under RCFC 12(b)(1).”), aff’d, 632 F. App’x 1027 (Fed. Cir. 2015); Williams v.
Emp’rs Mut. Cas. Co., 845 F.3d 891, 901 (8th Cir. 2017) (court cannot “prioritize a
complaint’s use of magic words over its factual allegations”).

        Nevertheless, “[t]he presumption . . . is that the dismissal of even a very weak
case should be on the merits rather than because it was too weak even to engage . . .
jurisdiction.” Carr, 591 F.3d at 917. Indeed, the Federal Circuit directs that we err on
the side of a merits dismissal pursuant to RCFC 12(b)(6). Lewis, 70 F.3d at 603 (“[A]
complaint alleging that the plaintiff has a right to relief on a ground as to which the
court has jurisdiction raises a question within the court’s subject matter jurisdiction as
long as the asserted basis of jurisdiction is not pretextual, i.e., as long as the
jurisdictional ground asserted in the complaint does not ‘appear[ ] to be immaterial and
made solely for the purpose of obtaining jurisdiction.’” (quoting Kohler Die & Specialty
Co., 228 U.S. at 25) (emphasis added)). Indeed, if that were not the case, “in light of the
rule that a jurisdictional dismissal is not res judicata as to the underlying merits of the
dispute, . . . the ‘frivolousness’ exception gives rise to the anomaly that if frivolous
claims are dismissed for want of jurisdiction, rather than on the merits, the principles of
res judicata will be least applicable to the most insubstantial claims.” Lewis, 70 F.3d at
603 (citing Do–Well Machine Shop, 870 F.2d at 640).




                                            - 11 -
IV.    Mr. Perry’s Claims Are Not Within This Court’s Jurisdiction Or Must Be
       Dismissed For Failure To State A Claim As A Matter Of Law Upon Which
       Relief Can Be Granted
        Taking into consideration Mr. Perry’s pro se status by broadly construing his
arguments — and, of course, assuming that all of his plausible factual allegations are
true, as the Court must at this stage 9 — this Court nevertheless holds that Mr. Perry’s
claims either fall outside of this Court’s jurisdiction or fail to state a claim upon which
relief can be granted. In either case, Mr. Perry’s claims must be dismissed.

       Before addressing the government’s arguments in its motion to dismiss, the
Court notes that Mr. Perry repeatedly has failed to comply with this Court’s Rules in a
number of important respects. For example, pursuant to RCFC 10(a), “the United States
[must be] designated as the party defendant.” This means not only that the United
States must be included as a party defendant, but also that it must be the sole defendant
named in the complaint. Kemp v. United States, 124 Fed. Cl. 387, 392-93 (2015) (“The only
proper defendant for any matter before this court is the United States, not its officers,
nor any other individual.” (emphasis added)). In Mr. Perry’s Complaint, and in all of
his subsequent filings, Mr. Perry included an exhaustive list of other government
agencies and officials who are not proper defendants in this Court, including, but not
limited to, the USPTO and “All Other Defendants in their Administrative and Official
Capacities.” Compl. at 1; see also Pl. Resp. at 1. Furthermore, Mr. Perry submitted nine
additional attempted filings that this Court did not request, and that were either
duplicative of one another or did not comply with this Court’s Rules regarding the form
or timing of filings. See ECF No. 22 (April 24, 2020 Order “Rejecting Plaintiff’s
4/20/2020 and 4/22/2020 Nine Submissions”).

        Failure to follow this Court’s Rules may, in some instances, independently
warrant dismissal of an action, although the Court does not rely upon such grounds
here. See RCFC 41(b) (providing for sua sponte dismissal “[i]f the plaintiff fails . . . to
comply with these rules”); Whiting v. United States, 99 Fed. Cl. 13, 17 (2011) (citing Kadin
Corp. v. United States, 782 F.2d 175, 176–77 (Fed. Cir. 1986), for the proposition that
although “dismissal of a claim is a harsh action, especially to a pro se litigant, it is
justified when a party fails to pursue litigation diligently and disregards the court's
rules”). While Mr. Perry’s procedural missteps may constitute a simple
misunderstanding of how this Court operates, more likely — as explained infra — they



9Because the government’s motion makes a facial attack on the jurisdictional facts contained in
Mr. Perry’s Complaint, this decision assumes that such allegations — but not legal conclusions
— are true for the purposes of resolving the pending motion to dismiss. Iqbal, 556 U.S. at 678
(“[F]or the purposes of a motion to dismiss we must take all of the factual allegations in the
complaint as true.” (emphasis added)).

                                             - 12 -
underscore Mr. Perry’s mistaken view of this Court’s jurisdiction, or what is required to
state a proper claim in this Court pursuant to the Tucker Act.

       At base, Mr. Perry fails to meet his burden to assert non-frivolous, factual
allegations in his Complaint sufficient to invoke this Court’s jurisdiction. Mr. Perry’s
use of Tucker Act language often is nothing more than a pretext for an attempt to
invoke this Court’s jurisdiction over claims that otherwise would be clearly outside of
it. Lewis, 70 F.3d at 603 (emphasizing that “a complaint[‘s] . . . asserted basis of
jurisdiction . . . [can]not [be merely] pretextual”). Moreover, at a minimum, Mr. Perry’s
Complaint fails, as a matter of law, to state a claim upon which relief can be granted.
Accordingly, whether pursuant to RCFC 12(b)(1) or 12(b)(6), Mr. Perry’s Complaint
must be dismissed.

       A. Mr. Perry’s Complaint Does Not Assert Any Patent-Related Claim Within
          This Court’s Jurisdiction

        Mr. Perry’s Complaint is based primarily upon three patent applications that he
allegedly submitted to the USPTO. Compl. ¶ 1. The Court of Federal Claims typically
possesses jurisdiction over patent-related claims only where the patent holder alleges
that its patent was “used or manufactured by or for the United States without license of
the owner thereof[.]” 28 U.S.C. § 1498(a). That statute applies, however, only to patent
infringement claims against the government, rather than embracing any and all patent-
related claims based on the government’s actions. See, e.g., Zoltek Corp. v. United States,
815 F.3d 1302, 1304 (Fed. Cir. 2016) (recognizing that § 1498(a) limits the “liability of the
United States for infringement” to a narrow set of circumstances); Honeywell Int’l Inc. v.
United States, 114 Fed. Cl. 637, 638 (2014) (explaining the narrow scope of the exclusive
grant of jurisdiction under § 1498(a)). Patent claims fall within § 1498’s ambit only
where infringement is alleged to have been undertaken “by or for the Government with
its authorization and consent.” Zoltek Corp, 815 F.3d at 1304. In this case, Mr. Perry
does not allege facts that support a patent claim within this Court’s jurisdiction.

       To invoke this Court’s patent jurisdiction, a plaintiff must be a “patentee,” which
“‘has been interpreted to require that a suit for infringement must ordinarily be brought
by a party holding legal title to the patent[.]’” Mynette Tech. v. United States, 139 Fed. Cl.
336, 343 (2018) (quoting Enzo APA & Son, Inc. v. Geapag A.G., 134 F.3d 1090, 1093 (Fed.
Cir. 1998)). In this case, Mr. Perry’s Complaint, at its core, alleges that his patent
applications were improperly denied or otherwise mishandled. See, e.g., Compl.
¶¶ 111-120, 121-126. Put differently, Mr. Perry does not allege that he is “a party
holding legal title to the patent,” Mynette Tech., 139 Fed. Cl. at 343, as apparently his
patent applications were never granted. See Chinsammy v. United States, 95 Fed. Cl. 21,
24 (2010) (emphasizing that 28 U.S.C. § 1498(a) “covers ‘a patent’ not a patent
application”), aff’d, 417 F. App’x 950 (Fed. Cir. 2011). If Mr. Perry seeks to appeal or
otherwise challenge the denial of his patent applications, his remedy lies elsewhere. See
35 U.S.C. §§ 134(a) (appeals to the Patent Trial and Appeal Board (“PTAB”)), 141 (PTAB

                                            - 13 -
appeals to the Federal Circuit), 145 (civil action in the United States District Court for
the Eastern District of Virginia); see also Peter v. Nantkwest, Inc., 140 S. Ct. 365, 367 (2019)
(discussing 35 U.S.C. § 145). Accordingly, Mr. Perry’s allegations and claims regarding
the USPTO’s handling or review of his patent applications — regardless of their merits
— are beyond our Court’s subject-matter jurisdiction.

        Mr. Perry’s other claims — based on the USPTO’s alleged mishandling of his
patent applications — similarly fall outside this Court’s jurisdiction. For example, this
Court does not have jurisdiction over FTCA claims, just as this Court lacks jurisdiction
to adjudicate claims “sounding in tort” generally. 28 U.S.C. § 1491(a)(1); see Rohland v.
United States, 136 Fed. Cl. 55, 65 (2018) (citing U.S. Marine, Inc. v. United States, 722 F.3d
1360, 1365–66 (Fed. Cir. 2013)). 10 Nor do Mr. Perry’s other asserted statutory bases for
his patent-related claims — including the APA — fall within this Court’s jurisdiction.
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 . . . .”); Murphy v. United States, 993 F.2d
871, 874 (Fed. Cir. 1993). Mr. Perry does not rely upon an alleged money-mandating
statute or “point to some statute specifically conferring power upon the trial court to
grant his desired relief[.]” Ledford v. United States, 297 F.3d 1378, 1381 (Fed. Cir. 2002);
Adair v. United States, 497 F.3d 1244, 1250 (Fed. Cir. 2007) (“When the source of such
alleged right is a statute, it can only support jurisdiction if it qualifies, as most statutes
do not, as money-mandating.”).

       Mr. Perry further appears to maintain that the Tucker Act itself somehow directly
authorizes suit in this Court to contest the USPTO’s actions. See, e.g., Pl. Resp. ¶¶ 21-24.
None of Mr. Perry’s factual assertions, however, amount to a claim within this Court’s
Tucker Act jurisdiction, and, as noted supra, this Court has no jurisdiction to generally
review an agency’s actions (e.g., pursuant to the APA). Lion Raisins Inc. v. United States,
416 F.3d 1356, 1370 n. 11 (Fed. Cir. 2005) (“Of course, no APA review is available in the
Court of Federal Claims.”).

       This Court also lacks jurisdiction to entertain Mr. Perry’s requests for declaratory
judgment and mandamus relief. 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[.]”); Dewakuku v. Martinez, 271
F.3d 1031, 1038 (Fed. Cir. 2001) (noting that in United States v. King, 395 U.S. 1, 5 (1969),
the U.S. Supreme Court “refus[ed] to find Declaratory Judgment Act jurisdiction at

10Contrary to Mr. Perry’s argument, Pl. Resp. ¶¶ 34-37, the Court of Federal Claims does not
have jurisdiction over tort actions based on its jurisdiction in vaccine injury cases. The National
Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq., expressly provides for this
Court’s jurisdiction in such cases. 42 U.S.C. § 300aa-12 (“Court jurisdiction”). Here, as the
government correctly observes, “Mr. Perry identifies no similar jurisdictional provision that
would allow this Court to hear his tort claims[.]” Def. Rep. at 3. Mr. Perry does not allege a
vaccine injury claim.

                                               - 14 -
Court of Claims ‘absen[t] an express grant of jurisdiction from Congress’”); Bundrick v.
United States, 785 F.2d 1009, 1010 (Fed. Cir. 1986) (“mandamus [is an] action[] over
which the Claims Court does not have jurisdiction”). Similarly, any claims rooted in the
USPTO’s alleged violation of criminal laws must be dismissed, as the “’function of
enforcing and policing the criminal law is assigned to the courts of general jurisdiction
and not to [the Court of Federal Claims.]’” Sanders v. United States, 252 F.3d 1329, 1335
(Fed. Cir. 2001) (quoting Kania v. United States, 650 F.2d 264, 268 (Cl. Ct. 1981)).

        B. Mr. Perry’s Complaint Fails Either To State A Contract Claim Within This
           Court’s Jurisdiction Or To State A Claim As A Matter Of Law Upon Which
           Relief Can Be Granted

        The government, in its reply brief, generously reads one of Mr. Perry’s claims as
an attempt to allege breach of contract — a type of claim that at least generally is within
this Court’s Tucker Act jurisdiction. See Def. Rep. at 3-4. That said, the
“[d]etermination of [this Court’s] jurisdiction starts with the complaint, which must be
well-pleaded in that it must state the necessary elements of the plaintiff’s claim,
independent of any defense that may be interposed.” Holley v. United States, 124 F.3d
1462, 1465 (Fed. Cir. 1997). Moreover, “[c]onclusory allegations of law and
unwarranted inferences of fact do not suffice to support a claim.” Bradley v. Chiron
Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998). Thus, as explained supra, Mr. Perry cannot
invoke this Court’s jurisdiction to adjudicate his grievances merely by invoking Tucker
Act language, such as “contract,” “taking,” “damages,” or “illegal exaction.” This Court
is not bound by Mr. Perry’s conclusory legal characterizations, and references in his
Complaint to an “express or implied contract with the United States[,]” Compl. ¶ 21, are
insufficient — standing alone — to vest this Court with jurisdiction.

       Nevertheless, Mr. Perry appears to contend that his submission of patent
application data sheets to the USPTO formed “an agreement between the patent
applicant and the USPTO, and [that the] fees . . . paid [were] consideration.” Pl. Resp.
¶ 122. The Court cannot discern whether Mr. Perry asserts that he formed an express or
an implied-in-fact contract with the United States. In either case, this Court concludes
that Mr. Perry’s alleged submission of patent applications to the USPTO does not
constitute a contract claim within this Court’s jurisdiction. 11 Indeed, Mr. Perry’s use of

11 Although Mr. Perry’s contract claim is articulated at greater length in his response to the
government’s motion to dismiss, such filings cannot supplement the Complaint to establish
jurisdiction. Mendez-Cardenas v. United States, 88 Fed. Cl. 162, 166–67 (2009) (quoting Car
Carriers, Inc. v. Ford Motor Corp., 745 F.2d 1101, 1107 (7th Cir. 1984), for the proposition that “’it
is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to
dismiss’” to establish jurisdiction); McGrath v. United States, 85 Fed. Cl. 769, 772 (2009) (“This
court does not possess jurisdiction to hear claims presented for the first time in responsive
briefing.”). This Court consistently has reaffirmed this principle, as have other courts. See e.g.,
Davis v. United States, 108 Fed. Cl. 331, 338 n.4 (2012); Kortlander v. United States, 107 Fed. Cl. 357,
374 (2012); Hufford v. United States, 87 Fed. Cl. 696, 701 (2009); Michels v. United States, 72 Fed.

                                                 - 15 -
contract language is pretextual, and he cannot manufacture jurisdiction here through
the use of such terms. Lewis, 70 F.3d at 603.

        The government thus is correct that Mr. Perry’s contract claim must be dismissed
for lack of jurisdiction. Def. Rep. at 4. Binding precedent “repeatedly [has] held that
[Tucker Act] jurisdiction extends only to contracts either express or implied in fact, and
not to claims [based] on contracts implied in law.” Hercules v. United States, 516 U.S.
417, 423 (1996); see Lumbermens Mut. Cas. Co. v. United States, 654 F.3d 1305, 1316 (Fed.
Cir. 2011) (“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[]” (citing City of Cincinnati v. United States, 153 F.3d
1375, 1377 (Fed. Cir. 1998))). Accordingly, in pleading contract claims against the
government, only those predicated upon express or implied-in-fact contracts fall within
this Court’s subject-matter jurisdiction. See, e.g., eVideo Owners v. United States, 126 Fed.
Cl. 95, 104 (2016) (dismissing complaint pursuant to RCFC 12(b)(1) because plaintiffs
merely “point[ed] to a duty that arises by operation of law to establish the alleged
contracts with the United States[,]” rather than “an implied-in-fact contract that would
fall within the [Court’s] jurisdiction”), aff’d, 680 F. App’x 1004 (Fed. Cir. 2017).

        For example, in Lion Raisins, Inc. v. United States, the plaintiff alleged that the
Department of Agriculture breached an implied-in-fact contract, in failing to perform
statutorily required inspection services for which the plaintiff had paid. 54 Fed. Cl. 427,
432 (2002). This Court held that it lacked subject-matter jurisdiction because any such
obligations “would be implied in law, not implied-in-fact[.]” Id. In particular, the
Court reasoned that “the requirement for inspections and the payment of fees were
pursuant to law and not the result of (1) an offer, (2) acceptance, (3) consideration, and
(4) an agreement with a Government agent authorized to bind the Government.” Id. at
431 (internal quotation marks omitted); see Russell Corp. v. United States, 537 F.2d 474,
482 (Ct. Cl. 1976) (“Implied-in-fact contracts differ from contracts implied in law (quasi-
contracts), where a duty is imposed by operation of law without regard to the intent of
the parties. Such arrangements are treated as contracts for the purposes of remedy
only. This court, of course, has no jurisdiction to render judgment against the United
States based upon a contract implied in law.”).

       Similarly, in eVideo Owners — a case upon which the government relies, and
which involved allegations similar to those contained in Mr. Perry’s Complaint — the
plaintiffs claimed that they entered into implied-in-fact contracts with the USPTO

Cl. 426, 432 (2006); Fischer v. Minneapolis Pub. Sch., 792 F.3d 985, 990 (8th Cir. 2015); Bissessur v.
Indiana Univ. Bd. of Trustees, 581 F.3d 599, 603 (7th Cir. 2009); Frederico v. Home Depot, 507 F.3d
188, 202 (3d Cir. 2007). Mr. Perry’s putative contract claim was presented, if anywhere, “for the
first time in responsive briefing[.]” McGrath, 85 Fed. Cl. at 772. Thus, even if Mr. Perry
sufficiently pleaded a contract claim in his opposition to the government’s motion — which the
Court concludes that he did not — the Court would not have jurisdiction to consider that claim.

                                                - 16 -
through paying patent application fees, and that the USPTO’s subsequent actions
violated those contracts. 126 Fed. Cl. at 104. This Court dismissed the breach of
contract claim for lack of subject-matter jurisdiction because plaintiffs “point[ed] to a
duty that arises by operation of law to establish the alleged contracts with the United
States[.]” Id. Such a duty, however, “cannot create an implied-in-fact contract that
would fall within the [Court’s] jurisdiction.” Id. (citing Lion Raisins, 54 Fed. Cl. at 432). 12
In this case, the Court agrees with the government that “Mr. Perry cannot conve[r]t this
statutory obligation into a contract simply by re-characterizing the fees that he paid to
the USPTO as consideration.” Def. Rep. at 4.

        The fatal defect in Mr. Perry’s Complaint is that it does not allege facts that even
suggest the existence of an express or implied-in-fact contract. 13 Again, what Mr. Perry
cannot do is label his submission of USPTO data sheets an implied-in-fact contract to
confer jurisdiction here, nor is the Court bound by Mr. Perry’s conclusory legal
characterizations. See eVideo Owners, 126 Fed. Cl. at 104; Lion Raisins, 54 Fed. Cl. at 432;
see also Bradley, 136 F.3d at 1322. Accordingly, Mr. Perry’s claims stemming from the
submission of his USPTO application are not supported by non-conclusory factual
assertions sufficient to state a claim for breach of an express or implied-in-fact contract
that falls within this Court’s subject-matter jurisdiction.


12The basic rule is that “[t]he use of language that simply restates obligations created by a
regulation evinces that the government ‘never intended the language . . . to be more than a
mere expression of intention, as opposed to words of commitment.’” Chattler v. United States,
632 F.3d 1324, 1331 (Fed. Cir. 2011) (quoting Floyd v. United States, 26 Cl. Ct. 889, 891 (1992), aff'd
on other grounds, 996 F.2d 1237 (Fed. Cir. 1993), cert. denied, 510 U.S. 925 (1993)). Thus, “‘[w]here
rights and obligations are prescribed by statute and regulations rather than determined through
the mechanics of a bilateral exchange, there is no contract in the usual sense of that word.’”
Chattler, 632 F.3d at 1331 (quoting Clawson v. United States, 24 Cl. Ct. 366, 370 (1991)).
13
  An implied-in-fact contract theory is sufficient “to set forth a basis for subject-matter
jurisdiction” where a plaintiff makes “a non-frivolous assertion of [such] an implied contract
with the United States[.]” City of Cincinnati, 153 F.3d at 1377. Notably, “the requirements for an
implied-in-fact contract are the same as for an express contract; only the nature of the evidence
differs. An implied-in-fact contract is one founded upon a meeting of minds and ‘is inferred, as
a fact, from the conduct of the parties showing, in the light of the surrounding circumstances,
their tacit understanding.’” Hanlin v. United States, 316 F.3d 1325, 1328 (Fed. Cir. 2003) (quoting
Balt. & Ohio R.R. v. United States, 261 U.S. 592, 597 (1923)). Thus, to demonstrate that an express
or implied-in-fact contract with the government was formed, at the very least, the parties’
conduct must allow for the inference that there was “(1) mutuality of intent; (2) consideration;
(3) lack of ambiguity in the offer and acceptance; and (4) actual authority to bind the
government in contract on the part of the government official whose conduct is relied upon.”
First Mortg. Corp. v. United States, 142 Fed. Cl. 164, 170 (2019) (citing Kam-Almaz v. United States,
682 F.3d 1364, 1368 (Fed. Cir. 2012)). Although those elements implicate the merits of a claim,
they are informative regarding the facts Mr. Perry’s Complaint must plead to state a claim
within this Court’s jurisdiction.

                                                 - 17 -
        Furthermore, any attempt to construe the relationship between the USPTO and a
patent applicant as contractual is legally implausible on its face. See Constant v. United
States, 861 F.2d 728, 1988 WL 94630, at *1 (Fed. Cir. Sep. 13, 1988) (unpublished)
(emphasizing that “the issuance of a patent by the [USPTO] does not create a
contractual relationship between the PTO and the patentee[,]”and the “patenting
process is not a contracting process”); Arunachalam v. Pazuniak, 2018 WL 4603265, at *5
(D. Del. Sept. 25, 2018) (holding that patent holder did “not have a contract with the
USPTO”); see also Ibrahim, 799 F. App’x at 867 (affirming dismissal for lack of subject-
matter jurisdiction where plaintiff did not “plausibly allege the existence of a contract”).
Indeed, even with respect to the patent process itself, the Federal Circuit has held that,
“[f]ar from being the inception of vested patent rights, submission of a patent
application is the inception of an uncertain process that might possibly result in vested
rights at some later time.” Grover v. United States, 73 F. App’x 401, 405 (Fed. Cir. 2003).

        Accordingly, the Court holds that Mr. Perry’s Complaint, at best, alleges an
implied-in-law contract. See Folden v. United States, 56 Fed. Cl. 43, 55 (2003) (agreeing
with the government that “’[t]he FCC’s simple receipt of plaintiffs’ license applications
did not create contracts’” and that “the FCC regulations, upon which the plaintiffs base
their contract claim, do not indicate an intent upon the part of the FCC to be
contractually bound”), aff’d, 379 F.3d 1344 (Fed. Cir. 2004); Baker v. United States, 50 Fed.
Cl. 483, 495 (2001) (observing that although federal regulations which govern Farm
Services Agency applications “cast [such applications] in more mandatory terms” they
nonetheless “lack definiteness and a manifestation of the Government’s intent to enter
into a contract upon receipt of an application”). 14 But, as explained supra, a cause of
action predicated upon such a contract does not fall within this Court’s jurisdiction. See
Engage Learning, 660 F.3d at 1353 (holding that “jurisdiction under [the Tucker Act]
requires” that plaintiff plead sufficient facts to establish the existence of a contract with
the government); see also Crow Creek Sioux Tribe, 900 F.3d at 1354–55 (emphasizing that
“‘[t]hreadbare recitals of the elements . . . supported by mere conclusory statements, do
not suffice’” to establish jurisdiction (quoting Iqbal, 556 U.S. at 678)). 15 To employ the
14
  To the extent Mr. Perry advances a contract theory in this case, it is limited to his patent
applications. The Court cannot discern any other facts that plausibly could be read to allege a
contract claim under the Tucker Act. Mr. Perry’s repeated references to the language of the
Tucker Act, see, e.g., Compl. ¶ 21, are merely “pretextual” and do not suffice to establish this
Court’s subject-matter jurisdiction. Lewis, 70 F.3d at 603.
15This issue again implicates the difficulty in drawing a sharp distinction between dismissals
pursuant to RCFC 12(b)(1) and RCFC 12(b)(6). While this Court lacks jurisdiction over factual
allegations that amount to nothing more than an implied-in-law contract, a contract that is
found to be void as a matter of law properly may be dismissed for failure to state a claim. For
example, in Gould, the Federal Circuit found that plaintiff alleged an express contact within this
Court’s jurisdiction, but that plaintiff’s allegation of illegality voided the express contract. 67
F.3d at 929-30. But where, as here, allegations cannot possibly amount to an implied-in-fact
contract within our jurisdiction, dismissal pursuant to RCFC 12(b)(1) is warranted.

                                               - 18 -
Seventh Circuit’s metaphor, Mr. Perry’s alleged data sheets and patent applications are
no more contracts than bananas are securities. Carr, 591 F.3d at 917.

        In the alternative, the Court holds that Mr. Perry’s contentions rooted in the
existence of a contract with the United States, whether based on his USPTO applications
or otherwise, fail to state a claim as a matter of law upon which relief can be granted.
See eVideo Owners, 126 Fed. Cl. at 104 n.4 (holding that in addition to the Court’s
dismissing plaintiffs’ implied-in-law contract claim pursuant to RCFC 12(b)(1), “the
Court must also dismiss plaintiffs’ breach of contract claims for failure to state a claim
pursuant to RCFC 12(b)(6)[]”). For a complaint to survive a motion to dismiss pursuant
to RCFC 12(b)(6), a complaint must contain plausible factual assertions which, if true,
would entitle the plaintiff to the claimed relief as a matter of law. See Welty v. United
States, 926 F.3d 1319, 1323 (Fed. Cir. 2019) (quoting Lindsay v. United States, 295 F.3d
1252, 1257 (Fed. Cir. 2002), for the proposition that “’[a] motion to dismiss . . . for
failure to state a claim upon which relief can be granted is appropriate when the facts
asserted by the claimant do not entitle him to a legal remedy[]’”). In other words, “a
complaint must allege facts ‘plausibly suggesting (not merely consistent with)’ a
showing of entitlement to relief.” Acceptance Ins. Cos., Inc. v. United States, 583 F.3d 849,
853 (Fed. Cir. 2009) (quoting Twombly, 550 U.S. at 557). Thus, “[t]o state a claim upon
which relief can be granted, [plaintiff] must allege either an express or an implied-in-
fact contract, and the breach of that contract.” Trauma Serv. Grp., 104 F.3d at 1325.

       Put differently, pursuant to RCFC 12(b)(6), a plaintiff must plead facts
demonstrating all of the elements of a contract with the government — namely, “a
mutual intent to contract, including an offer, an acceptance, and consideration”
exchanged with a government official having actual authority to contract. Id. at 1326;
see Monarch Assur. P.L.C. v. United States, 244 F.3d 1356, 1360 (Fed. Cir. 2001) (“[T]he law
requires that a Government agent who purports to enter into or ratify a contractual
agreement that is to bind the United States have actual authority to do so.”).

       Neither Mr. Perry’s Complaint, nor his response in opposition to the
government’s motion — were the Court to consider new allegations in the latter —
assert any facts sufficient to demonstrate that Mr. Perry 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 who bound the United States in
contract to Mr. Perry. Again, Mr. Perry’s Complaint, at most, states a claim for the
breach of an implied-in-law contract; but, as explained supra, that is a claim over which
this Court does not have jurisdiction. See Trauma Serv. Grp., 104 F.3d at 1328 (where
plaintiff’s complaint alleged only an implied-in-law contract and did not “show the
existence of an express or an implied-in-fact contract, and the breach thereof, the Court
of Federal Claims properly dismissed for failure to state a claim under RCFC
12(b)[(6)]”); XP Vehicles, Inc. v. United States, 121 Fed. Cl. 770, 793 (2015).



                                            - 19 -
       Where, as here, Mr. Perry has alleged nothing more than an implied-in-law
contract with the United States — and has failed to allege any facts to support an
express or implied-in-fact contract with the government — his Complaint fails to
“elevate a claim for relief to the realm of plausibility” as required by RCFC 12(b)(6).
Laguna Hermosa, 671 F.3d at 1288. Accordingly, even assuming this Court had
jurisdiction to consider Mr. Perry’s purported contract claims — whether based upon
his submission of USPTO applications, or otherwise — the Court holds that such claims
should be dismissed on the merits pursuant to RCFC 12(b)(6).

       C. Mr. Perry’s Complaint Does Not Assert A Takings Claim Within This
          Court’s Jurisdiction Or Fails To State Such A Claim As A Matter Of Law
          Upon Which Relief Can Be Granted

       Although the government seeks dismissal of Mr. Perry’s alleged takings claim
pursuant to RCFC 12(b)(6), see Def. Mot. at 1, the Court questions whether his
Complaint, while lengthy, contains sufficient non-conclusory, factual allegations so as to
vest this Court with jurisdiction. 16 Monzo, 2013 WL 6235608, at *3 (holding that even if a
complaint alleges the violation “a statute or regulation [which] does mandate the
payment of money[,]” in order “to trigger jurisdiction . . . plaintiff [must] show[] that he
is within the class of plaintiffs entitled to recover under the money-mandating source”)
(quotations and citation omitted); see Crow Creek Sioux Tribe, 900 F.3d at 1354–55.

       To be clear, once again, Mr. Perry cannot invoke this Court’s jurisdiction to
decide his grievances merely via repetitive references to the Fifth Amendment or the
magic word “taking.” See Barksdale v. United States, 582 F. App’x 890, 892 (Fed. Cir.
2014) (per curiam) (“Despite the use of the word ’taking,’ these are claims under the
First and Fourteenth Amendment, which the Claims Court properly ruled [were]
outside its jurisdiction.”). Admittedly, however, Mr. Perry’s putative takings claim
presents a closer call as to whether Mr. Perry’s Complaint should be dismissed on
RCFC 12(b)(1) grounds or pursuant to RCFC 12(b)(6) for the simple reason that this
Court generally does possess jurisdiction over takings claims pursuant to the Tucker Act.

       The thrust of Mr. Perry’s Complaint appears to be that, in general, “applications
for patents shall be kept in confidence by the Patent and Trademark Office[,]” but that
Mr. Perry’s was not. 35 U.S.C. § 122(a); see also Hyatt v. U.S. Patent & Trademark Office,

16See RCFC 12(h)(3). “[F]ederal courts have an independent obligation to ensure that they do
not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional
questions that the parties either overlook or elect not to press.” Henderson ex rel. Henderson v.
Shinseki, 562 U.S. 428, 434 (2011); see Ibrahim, 799 F. App’x at 867 (“Establishing subject matter
jurisdiction is a threshold issue, Dow Jones & Co. v. Ablaise Ltd., 606 F.3d 1338, 1348 (Fed. Cir.
2010), and every federal court has an ‘independent obligation to determine whether subject
matter jurisdiction exists, even in the absence of a challenge from any party.’ Arbaugh v. Y & H
Corp., 546 U.S. 500, 514, 126 S. Ct. 1235, 163 L.Ed.2d 1097 (2006).”).

                                               - 20 -
797 F.3d 1374, 1380 (Fed. Cir. 2015) (“The structure of § 122(a) reflects Congress’ intent
to protect the confidentiality of patent applications.”); Compl. ¶¶ 45-58. Even assuming
that the USPTO did not comply with that statutory provision, such an alleged violation
does not constitute a taking within this Court’s jurisdiction.

         The Takings Clause of the Fifth Amendment provides that private property shall
not “be taken for public use, without just compensation.” U.S. Const. amend. V. While
“[i]t is undisputed that the Takings Clause of the Fifth Amendment is a money-
mandating source [of law] for purposes of Tucker Act jurisdiction,” Jan’s Helicopter, 525
F.3d at 1309, a plaintiff seeking compensation for a taking “must concede the validity of
the government action which is the basis of the . . . claim.” Mahoney v. United States, 129
Fed. Cl. 589, 593 (2016) (quoting Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 802 (Fed.
Cir. 1993)); see also Moody, 931 F.3d at 1142 (“A takings claim cannot be found on the
theory that the United States has taken unlawful action.”); Gahagan v. United States, 72
Fed. Cl. 157, 161-62 (2006) (citing Fla. Rock Indus., Inc. v. United States, 791 F.2d 893, 898
(Fed. Cir. 1986), for the proposition that a plaintiff’s insistence that the government’s
alleged taking was “unlawful . . . places the claim outside a takings context”); Acadia
Tech., Inc. v. United States, 458 F.3d 1327, 1330 (Fed. Cir. 2006) (explaining that a “takings
claim” pursuant to the Tucker Act is “separate from a challenge to the lawfulness of the
government’s conduct”). Indeed, Mr. Perry himself acknowledges this fundamental
proposition of law. See Compl. ¶ 26.

        Nevertheless, Mr. Perry maintains — as reflected in the countless papers that he
has sought to file throughout the pendency of his Complaint — that the USPTO acted in
violation of 35 U.S.C. § 122 when the USPTO published his patent application on its
website. See Pl. Resp. at 49 (claiming that the USPTO “seized Mr. Perry’s patent
application, without permission”); see also id. ¶ 46 (characterizing the USPTO’s actions
as the “impermissible posting and sale of Mr. Perry’s . . . patent application”). Because
Mr. Perry is challenging the lawfulness of the government’s action, and he does not
“concede the validity of the government action,” Mr. Perry’s alleged takings claim is
one which falls outside of this Court’s jurisdiction and therefore must be dismissed.
Tabb Lakes, 10 F.3d at 802; Milgroom v. United States, 651 F. App’x 1001, 1005 (Fed. Cir.
2016) (explaining that, “[w]hile the Claims Court does possess jurisdiction to consider
certain takings claims under the Fifth Amendment, it may only exercise that jurisdiction
when the claimant ‘concede[s] the validity of the government action which is the basis
of the taking claim to bring suit under the Tucker Act’” (quoting Tabb Lakes, 10 F.3d at
802–03)); Whiteford v. United States, -- Fed. Cl. --, 2020 WL 1845314, at *6 n.3 (Fed. Cl.
Apr. 10, 2020) (dismissing takings claims based upon unlawful agency action for lack of
subject-matter jurisdiction); see Straw v. United States, 2017 WL 6045984 (Fed. Cl. Dec. 6,
2017) (citing Milgroom with approval).

       This requirement that a plaintiff seeking to allege a takings claim before this
Court “concede the validity of the government action which is the basis of the . . .
claim[,]” Mahoney, 129 Fed. Cl. at 593, also necessarily implies that any alleged

                                            - 21 -
impropriety in the USPTO’s conduct cannot itself be the basis for Mr. Perry’s takings
claim. Hyatt, 797 F.3d at 1383 (holding that APA applies to court’s review of whether
USPTO properly “disclos[ed] . . . otherwise-confidential information”). 17

       Moreover, neither Mr. Perry’s factual averments with respect to the USPTO’s
alleged violation of 35 U.S.C. § 122(a), nor any other contentions in his Complaint,
appear to satisfy the requirements to support a takings claim within this Court’s
subject-matter jurisdiction. For example, Mr. Perry’s allegations do not identify what
property right, if any, was taken by the government or how the USPTO indeed has
“taken” any such property. See, e.g., Knick v. Twp. of Scott, Pennsylvania, 139 S. Ct. 2162,
2170 (2019) (observing that a takings claim under the Tucker Act lies when “the
government takes [plaintiff’s] property without paying for it”). Indeed, in the most
basic sense of the word, a “taking” for which plaintiff seeks compensation before this
Court could not have possibly occurred if none of plaintiff’s property was, in fact,
“taken.” Air Pegasus of D.C., Inc. v. United States, 424 F.3d 1206, 1215 (Fed. Cir. 2005)
(“As an initial matter, a claimant seeking compensation from the government for an
alleged taking of private property must, at a minimum, assert that its property interest
was actually taken by the government action.” (emphasis added)).

       In this case, Mr. Perry’s allegations center around one of the patent applications
he submitted to the USPTO. Compl. ¶¶ 308-312. Yet, at no point does Mr. Perry’s
Complaint “suggest that [the USPTO] has claimed a permanent or even temporary
ownership interest” in his patent application — or otherwise took his intellectual
property — for the government’s benefit. Drury v. United States, 52 Fed. Cl. 402, 404
(2002); see Ridge Line, Inc. v. United States, 346 F.3d 1346, 1356 (Fed. Cir. 2003) (noting
that “an invasion must appropriate a benefit to the government at the expense of the
property owner”); Big Oak Farms, Inc. v. United States, 105 Fed. Cl. 48, 58 (2012) (rejecting
takings claim in the absence of “an appropriation of property for the government’s
benefit”). Even allegations that the United States infringed a patent that already has
been granted — claims which are within this Court’s subject-matter jurisdiction —
cannot be pleaded as takings claims. Golden v. United States, 955 F.3d 981, 987-88 (Fed.
Cir. 2020) (citing Schillinger v. United States, 155 U.S. 163, 168-69 (1894), for the

17Notwithstanding Mr. Perry’s use of takings language, his Complaint also appears to suggest
that the USPTO’s publication of Mr. Perry’s patent application provides a basis for relief
separate and apart from his takings claim. In particular, he asserts that the government injured
him in “[u]nlawfully [p]ublishing [a]nd [t]aking [w]ith [r]espect [t]o [a]pplication No.
[]15/382,598[.]” Compl. at 87 (¶¶ 308-312). But even if this claim were valid, Mr. Perry’s
remedy lies elsewhere. See, e.g., Diamond v. U.S. Agency for International Dev., 108 F.3d 312, 315
(Fed. Cir. 1997) (noting that “[w]hile an argument could be made” that plaintiff’s claims had
merit, the “remedy, if any, lies in the district court”); cf. St. Bernard Parrish, 887 F.3d at 1362
(observing that even if the government’s inactions were improper the “remedy for these
inactions, if any, lies in tort[,]” and thus is outside the Court of Federal Claims’ jurisdiction).



                                               - 22 -
longstanding proposition that even patent infringement “claims sound in tort” and,
thus, “are to be pursued exclusively under 28 U.S.C. § 1498” and not as takings claims).

        While “[t]he multipurpose nature of [a] complaint d[oes] not deprive the Court
of Federal Claims of jurisdiction to entertain the takings claim alleged therein[,]” El-
Shifa Pharm. Indus. Co. v. United States, 378 F.3d 1346, 1353–54 (Fed. Cir. 2004), the Court
must still “‘look to the true nature of the action’” to determine whether jurisdiction
exists. Nat’l Ctr. for Mfg. Scis. v. United States, 114 F.3d 196, 199 (Fed. Cir. 1997) (quoting
Katz v. Cisneros, 16 F.3d 1204, 1207 (Fed. Cir. 1994)); see Pines Residential Treatment Ctr.,
Inc. v. United States, 444 F.3d 1379, 1380 (Fed. Cir. 2006) (“Regardless of a party’s
characterization of its claim, we look to the true nature of the action in determining the
existence or not of jurisdiction.”).

       When looking to the true nature of Mr. Perry’s Complaint, the mere fact that he
uses the word “taking” is insufficient to support a claim within this Court’s jurisdiction.
Barksdale, 582 F. App’x at 892 (affirming dismissal of takings claim because plaintiff’s
“use of the word ‘taking,’” did not establish the Claims Court’s jurisdiction). Instead,
Mr. Perry must allege facts that support the existence of a compensable property interest
that may serve as the basis for a takings claim within this Court’s jurisdiction. See Vane
Minerals (US), LLC v. United States, 116 Fed. Cl. 48, 62 (2014) (“The absence of a
compensable property interest has been recognized as grounds for dismissal under
RCFC 12(b)(1)[.]”); Hafen v. United States, 30 Fed. Cl. 470, 474 (1994) (dismissing takings
claim premised on unpatented mining claims for lack of subject-matter jurisdiction,
because “plaintiff ha[d] no valid existing right” in the claims), aff’d, 47 F.3d 1183 (Fed.
Cir. 1995); Seaboard Lumber Co. v. United States, 19 Cl. Ct. 310, 319 (1990) (citing Aulston v.
United States, 823 F.2d 510 (Fed. Cir. 1987), and Freese v. United States, 221 Ct. Cl. 963,
964–65 (1979), for the proposition that “[t]his court is without jurisdiction to determine
whether a taking has occurred until the plaintiff establishes a legally recognized
property interest in the timber[]”).

        Because Mr. Perry has failed to allege any facts to support a takings claim within
this Court’s subject-matter jurisdiction — aside from the conclusory references to a
taking and unidentified property rights — his claim likely fails to satisfy the Twombly
and Iqbal standards for the purposes of RCFC 12(b)(1). Crow Creek Sioux Tribe, 900 F.3d
at 1354–55 (citing Twombly, 550 U.S. at 570 and quoting Iqbal, 556 U.S. at 678, for the
proposition that “threadbare recitals of the elements of [a claim], supported by mere
conclusory statements, do not suffice” to establish jurisdiction); see Moden, 404 F.3d at
1341 (emphasizing that dismissal for lack of subject-matter jurisdiction is appropriate
where the allegations contained in the complaint are “foreclosed by prior decisions”).
In sum, to the extent that Mr. Perry challenges the USPTO’s conduct as unlawful, that
claim belongs in district court; and, insofar as he seeks damages for alleged injuries
arising from the USPTO’s actions, such a claim sounds in tort. In either case, this Court
likely lacks jurisdiction to consider the claim that the USPTO improperly published Mr.
Perry’s patent application. See Golden, 955 F.3d at 987-88.

                                             - 23 -
        Even if this Court has jurisdiction over Mr. Perry’s takings claim, however, the
government is correct that his claim nevertheless must be dismissed pursuant to RCFC
12(b)(6). Indian Harbor Ins. v. United States, 704 F.3d 949, 954 (Fed. Cir. 2013) (“A
complaint must be dismissed under Rule 12(b)(6) when the facts asserted do not give
rise to a legal remedy.”). Specifically, to state a takings claim upon which relief can be
granted, a plaintiff “must demonstrate . . . a property interest to assert and that the
government physically or by regulation infringed on that interest[.]” Craig Patty &
Craig Thomas Expeditors, LLC v. United States, 136 Fed. Cl. 211, 214 (2018). Mr. Perry’s
Complaint does not identify a recognized property interest or demonstrate that the
government somehow interfered with the use of his property, intellectual or otherwise.
Craig Patty & Craig Thomas Expeditors, 136 Fed. Cl. at 214; see Golden, 955 F.3d at 987-88
(citing Schillinger, 155 U.S. at 168-69, for the proposition that patent infringement
“claims sound in tort” when not based upon 28 U.S.C. § 1498 and are not takings
claims); Drury, 52 Fed. Cl. at 404 (“None of [plaintiff’s tort-based] allegations rise[] to
the magnitude necessary to support a takings claim.”); cf. Big Oak Farms, 105 Fed. Cl. at
58 (rejecting takings claim in the absence of “an appropriation of property for the
government’s benefit”). Instead, in support of Mr. Perry’s claim that the USPTO’s
publication of his patent applications amounted to a taking, his Complaint simply
recites “[c]onclusory allegations of law and unwarranted inferences of fact” — but, such
assertions “do not suffice to support [his] claim.” Bradley, 136 F.3d 1322.

        Simply put, Mr. Perry’s Complaint does not contain any plausible factual
allegations which, even if true, demonstrate that the government somehow interfered
with the use of his property, intellectual or otherwise. See Laguna Hermosa, 671 F.3d at
1288 (plaintiff must “elevate a claim for relief to the realm of plausibility” pursuant to
RCFC 12(b)(6)). Moreover, particularly in the intellectual property context, this Court
has held that, where a complaint suggests that “the government has done nothing to
affirmatively proscribe plaintiffs’ use of their property[,]” there can be no taking as a
matter of law. Energy Sec. of Am. Corp., 86 Fed. Cl. at 565 (holding that where
“[p]laintiffs do not allege that DOE assumed title to the patents, took the right to
exclude others from the patents, or infringed upon the right to sell or otherwise use the
patents[,]”plaintiffs’ complaint should be dismissed pursuant to RCFC 12(b)(6)); cf.
Huntleigh USA Corp. v. United States, 75 Fed. Cl. 642, 646 (2007) (concluding after trial
that “Huntleigh did not possess a compensable property interest under the Fifth
Amendment, and the Court's analysis ends there[,]” as a matter of law), aff’d, 525 F.3d
1370, 1381 (Fed. Cir. 2008) (rejecting takings claim where “the government has not
appropriated for its own use any property owned by Huntleigh”). Thus, for the very
same reasons the Court holds that it likely lacks jurisdiction over Mr. Perry’s takings
claim, his Complaint must be dismissed, in any event, pursuant to RCFC 12(b)(6) for
failing to state a takings claim, as a matter of law, upon which relief can be granted. See
Vane Minerals, 116 Fed. Cl. at 62 (“The absence of a compensable property interest has
been recognized as grounds for dismissal under RCFC 12(b)(1) and 12(b)(6).”).
Although the Court remains unconvinced that Mr. Perry has met his burden to

                                           - 24 -
demonstrate that his putative takings claim is within our Court’s jurisdiction, the Court
nevertheless concludes that dismissal pursuant to RCFC 12(b)(6) is warranted (and is
the preferred approach, as implicitly articulated in the government’s motion). See also
Carter, 794 F.3d at 807; Carr, 591 F.3d at 917.

          D. Mr. Perry’s Complaint Does Not Assert An Illegal Exaction Claim Within
             This Court’s Jurisdiction Or Fails To State Such A Claim As A Matter Of
             Law Upon Which Relief Can Be Granted

       Construed liberally, Mr. Perry’s final attempt to invoke this Court’s jurisdiction
— which the government’s pending motion to dismiss does not address — appears to
be a claim for an illegal exaction. The government’s omission, in the Court’s view, is
quite understandable given how confusing, duplicative, and voluminous the Court
finds Mr. Perry’s Complaint. Nevertheless, Mr. Perry alleges that “[t]he USPTO’s
assessment, acceptance, and retention of [patent application] fees was . . . not in
accordance with law and also contrary to constitutional right, power, privilege, or
immunity, and was inequitable.” Compl. ¶ 327. Similar to Mr. Perry’s takings claim,
this Court generally has jurisdiction over “illegal exaction” claims. See Eastport S.S. Corp.
v. United States, 178 Ct. Cl. 599, 605-06 (1967) (describing illegal exaction claims as those
alleging that “‘the Government has the citizen's money in its pocket’” (quoting Clapp v.
United States, 127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954))); see also Aerolineas Argentinas
v. United States, 77 F.3d 1564, 1572 (Fed. Cir. 1996) (“Tucker Act claims may be made for
recovery of monies that the government has required to be paid contrary to law.”). 18

       Mr. Perry’s broad allegations, however, necessarily implicate two subsidiary
questions: (1) whether the USPTO’s allegedly unlawful assessment or retention of
certain fees may serve as the predicate for an illegal exaction claim within this Court’s
jurisdiction; and (2) whether Mr. Perry’s Complaint contains sufficient facts to state a
claim within this Court’s jurisdiction, and upon which relief can be granted.

              1. Illegal Exaction And Money-Mandating Claims Are Distinct Causes of
                 Action

       An illegal exaction claim generally involves money “improperly paid, exacted, or
taken from the claimant[.]” Eastport S.S. Corp., 372 F.2d at 1007. As noted above, the
Federal Circuit’s predecessor court — the appellate division of the United States Court
of Claims — long ago characterized an illegal exaction as a situation in which “‘the
Government has the citizen’s money in its pocket. . . .’” Eastport S.S. Corp., 372 F.2d at
1008 (quoting Clapp, 117 F. Supp. at 580). In an illegal exaction case, in contrast to other
actions for money damages, jurisdiction exists under the Tucker Act “even when the
Constitutional provision allegedly violated does not contain compensation mandating
language.” Casa de Cambio Comdiv S.A. de C.V. v. United States, 48 Fed. Cl. 137, 143-

18   See generally Renée Burbank, Illegal Exactions, 87 Tenn. L. Rev. 315 (2020).

                                                  - 25 -
48 (2000) (citing Bowman v. United States, 35 Fed. Cl. 397, 401 (1996), and holding “that
this court has jurisdiction to consider whether the alleged violation of the regulations
led to an illegal exaction violative of the Due Process Clause, despite the fact that clause
does not contain compensation mandating language”), aff’d, 291 F.3d 1356, 1363 (Fed.
Cir. 2002) (“Our cases have established that there is no jurisdiction under the Tucker
Act over a Due Process claim unless it constitutes an illegal exaction.” (emphasis added)
(citing Murray v. United States, 817 F.2d 1580, 1583 (Fed. Cir. 1987), cert. denied, 489 U.S.
1055 (1989), and Inupiat Comy. of the Arctic Slope v. United States, 230 Ct. Cl. 647, 662, cert.
denied, 459 U.S. 969 (1982)). 19 Put differently, an illegal exaction claim under the Tucker
Act is “a non-tortious, non-contractual claim for money damages.” Auto Club Ins. Ass’n
v. United States, 103 Fed. Cl. 268, 273-74 (2012).

       Notwithstanding the illegal exaction claim’s venerable pedigree, a wrinkle in the
fabric of this Court’s Tucker Act jurisdiction is increasingly apparent, with many
decisions suggesting or even holding that an illegal exaction claim is not an
independent cause of action, but rather must itself be premised upon a money-
mandating provision of law. 20 With regard to USPTO fees, in particular, at least one
decision from this Court has held that we lack “jurisdiction to entertain . . . illegal
exaction claim[s] related to official fees because the USPTO’s notice statute and
implementing regulation do not provide for the return of money unlawfully exacted.”
eVideo Owners, 126 Fed. Cl. at 105 (citing Norman v. United States, 429 F.3d 1081, 1095
(Fed. Cir. 2005), for the proposition that “a claimant must demonstrate that the statute
or provision causing the exaction itself provides . . . that ‘the remedy for its violation
entails a return of money unlawfully exacted’” (additional citations omitted)).

       Although the undersigned certainly concurs with the result in eVideo Owners —
indeed, it was affirmed on appeal to the Federal Circuit 21 — the instant decision does
not dismiss Mr. Perry’s similar claims on such grounds, but rather addresses at greater
length the nature of the illegal exaction claim, including: (1) whether such a cause of
action may provide a jurisdictional foothold for Mr. Perry’s Complaint; and (2) whether
Mr. Perry’s Complaint contains sufficient facts to support such an illegal exaction claim
here, or whether it must be dismissed pursuant to RCFC 12(b)(1) and RCFC 12(b)(6).


19See also Testan, 424 U.S. at 401 (holding that a money-mandating provision of law is required
“[w]here the United States is the defendant and the plaintiff is not suing for money improperly
exacted or retained”).
20Burbank, 87 Tenn. L. Rev. at 345 (explaining that “[i]n the past decade, this framework is
almost universal among the courts that categorize the claim at all[,]” but criticizing the
approach as “ahistorical”).
21See eVideo Owners v. United States, 680 F. App’x 1004, 1004 (Fed. Cir. 2017) (unpublished per
curiam decision ordering “Appellants to show cause . . . why sanctions should not be imposed
for a frivolous appeal” and declining to address any of the issues in the case).

                                              - 26 -
       In resolving whether this Court generally has jurisdiction to consider a claim that
a government agency improperly or unlawfully collected or retained fees — i.e., even in
the absence of a money-mandating provision of law — this Court begins once again
with the plain language of the Tucker Act:

              The United States Court of Federal Claims shall have
              jurisdiction to render judgment upon any claim against the
              United States founded either [1] upon the Constitution, or any
              Act of Congress or any regulation of an executive department,
              or [2] upon any express or implied contract with the United
              States, or [3] for liquidated or unliquidated damages in cases
              not sounding in tort.

28 U.S.C. 1491(a)(1) (emphasis added).

        The first category — claims founded upon a constitutional, statutory, or
regulatory provision — includes money-mandating claims, such as takings claims.
Maine Community Health Options 140 S. Ct. at 1328. The second category, by its explicit
terms, covers government contract claims (i.e., express and implied-in-fact contracts, but
not implied-in-law contracts). Id. at 1327 (citing 28 U.S.C. § 1491(a)(1)); Hercules, 516
U.S. at 423 (“[Tucker Act] jurisdiction [does not] extend[] . . . to claims on contracts
implied in law[]”); City of Cincinnati, 153 F.3d at 1377. The remaining, third category —
“liquidated or unliquidated damages in cases not sounding in tort” — would seem to
include illegal exactions as an independent cause of action pursuant to the Tucker Act.22
If that is not the case, “[t]his [latter] category is basically a null set in modern Tucker Act
jurisdiction, which violates the statutory interpretation canon that every clause should
have meaning.” 23 Whether or not the Federal Circuit (or the Supreme Court) one day
may agree explicitly with that proposed textual source for an illegal action Tucker Act

22 Auto Club, 103 Fed. Cl. at 273 (“This language enables suit even in the absence of a money-
mandating statute or an express or implied contract….” (discussing Pan Am. World Airways, Inc.
v. United States, 122 F. Supp. 682, 683–84 (Ct. Cl. 1954)); Burbank, 87 Tenn. L. Rev. at 350
(arguing that “divorcing illegal exaction claims from requiring either a money-mandating
statute or constitutional provision would also hew more closely to the natural reading of the
Tucker Act waiver of sovereign immunity, which lists three categories of claims that can be
brought against the United States”).
23Burbank, 87 Tenn. L. Rev. at 349 (discussing the views of Judge Eric Bruggink in A Modest
Proposal, 28 Pub. Cont. L.J. 529, 535 (1998)); Burbank, id. (“This requirement for a second,
statutory money-mandating source of jurisdiction eviscerates illegal exactions as due process
claims as a practical matter. Typically, if a statute is money-mandating, then its violation
requires money damages as a remedy, without the need to frame the claim as an illegal
exaction. But where no statutory language proscribes the government’s conduct or implies a
monetary damages claim, plaintiffs [would be] left with no effective means of claiming damages
against the government.”).

                                             - 27 -
claim, the Federal Circuit repeatedly has distinguished between money-mandating and
illegal exaction claims as distinct categories of Tucker Act causes of action.

       For example, in Ontario Power Generation, Inc. v. United States, the Federal Circuit
explained that “[t]he underlying monetary claims” under the Tucker Act “are of three
types.” 369 F.3d 1298, 1301 (Fed. Cir. 2004) (emphasis added) (citing Testan, 424 U.S. at
400 (1976)). In particular, Ontario Power identified the following three distinct types of
monetary claims: (1) “claims alleging the existence of a contract between plaintiff and
the government”; (2) “illegal exaction claims”; and (3) “claims where ‘money has not
been paid but the plaintiff asserts that he is nevertheless entitled to a payment from the
treasury.’” 369 F.3d at 1301 (quoting Eastport S.S., 372 F.2d at 1007).

       Similarly, in Roth, the Federal Circuit delineated between three types of Tucker
Act claims, as follows:

              The Tucker Act authorizes certain actions for monetary relief
              against the United States to be brought in the Court of Federal
              Claims. For actions [1] pursuant to contracts with the United
              States, actions to [2] recover illegal exactions of money by the
              United States, and actions [3] brought pursuant to money-
              mandating statutes, regulations, executive orders, or
              constitutional provisions, the Tucker Act waives the
              sovereign immunity of the United States.

378 F.3d at 1384; see also Martinez, 333 F.3d at 1302-03 (“The Tucker Act authorizes
certain actions for monetary relief against the United States to be brought in the Court
of Federal Claims. The actions for which the Tucker Act waives sovereign immunity
are actions pursuant to contracts with the United States, actions to recover illegal exactions
of money by the United States, and actions brought pursuant to money-mandating
constitutional provisions, statutes, regulations, or executive orders.” (emphasis added));
Eastport S.S. Corp., 372 F.2d at 1007-08.

        In Aerolineas Argentinas v. United States, the Federal Circuit could not have been
more clear: “Tucker Act claims may be made for recovery of monies that the
government has required to be paid contrary to law.” 77 F.3d 1564, 1572 (Fed. Cir.
1996); id. at 1573 (citing cases and holding that “[t]he Tucker Act provides jurisdiction to
recover an illegal exaction by government officials when the exaction is based on an
asserted statutory power”). The Federal Circuit further explained that “[t]he amount
exacted and paid may be recovered whether the money was paid directly to the
government, or was paid to others at the direction of the government to meet a
governmental obligation.” Id. at 1573-74 (“Suit can be maintained under the Tucker Act
for recovery of the money illegally required to be paid on behalf of the government.”).
After analyzing the statutes, regulations, and government-issued forms upon which
plaintiff relied in that case, the Federal Circuit “conclude[d] that the Tucker Act

                                            - 28 -
provides jurisdiction to recover the sums exacted illegally by the Service due to its
misinterpretation or misapplication of statutes, regulations, or forms.” Id. at 1578.
More significantly, the Federal Circuit — not in dicta, but explicitly — held that “[i]n
view of this ruling, we need not discuss alternative theories of jurisdiction and recovery
offered by the airlines, including theories . . . [involving a] money-mandating statute[.]”
Id. (“We do not decide whether jurisdiction could also be based on any other premise.”).
Thus, the Federal Circuit already has held that a money-mandating provision of law
clearly is not a necessary prerequisite for an illegal exaction claim.

        Senior Circuit Judge Nies’ concurring decision in Aerolineas Argentinas helpfully
provided a clear explanation of the difference between the “two forms” of a “Tucker
Act claim for damages against the United States based upon a statute” — that is, “a
claim under a money-mandating statute or a claim for money improperly exacted or
retained.” Aerolineas Argentinas, 77 F.3d at 1578-79 (Nies, J., concurring) (citing Testan,
424 U.S. at 401–402). According to Senior Judge Nies, “[a] claimant must rely either on
a statute that mandates payment of money from the government to the claimant or on
an illegal exaction, that is, a payment to the government by the claimant that is obtained
without statutory authority.” 77 F.3d at 1578-79 (citing Clapp, 117 F. Supp. at 576).
While the first type of claim “is founded on statutory authorization[,]” the latter type is
based upon “the absence of statutory authorization.” Id. In short, “[o]ne is the flip side
of the other.” Id.

        This view of Federal Circuit precedent — i.e., that money-mandating and illegal
exaction claims are distinct Tucker Act claim categories — aligns with the Supreme
Court’s decision in Testan, which impliedly recognized the distinction between those
two types of claims. In Testan, the Supreme Court held that, “[w]here the United States
is the defendant and the plaintiff is not suing for money improperly exacted or retained,
the basis of the federal claim whether it be the Constitution, a statute, or a regulation
does not create a cause of action for money damages unless as the Court of Claims has
stated, that basis ‘in itself . . . can fairly be interpreted as mandating compensation by
the Federal Government for the damage sustained.’” Testan, 424 U.S. at 401–02
(emphasis added) (quoting Eastport S.S. Corp., 372 F.2d, at 1008, 1009). 24 Thus, the
Supreme Court recognized that this Court should only reach the question of whether a
putative money-mandating provision “can fairly be interpreted as mandating
compensation” where “the plaintiff is not suing for [an illegal exaction].” 424 U.S. at
401-02 (emphasis added). That language cannot be read except as delineating two
different categories of claims.


24See also Testan, 424 U.S. at 400-401 (“The respondents do not rest their claims upon a contract;
neither do they seek the return of money paid by them to the Government. It follows that the
asserted entitlement to money damages depends upon whether any federal statute ‘can fairly be
interpreted as mandating compensation by the Federal Government for the damage sustained.’”
(quoting Eastport S.S. Corp., 372 F.2d at 1009)).

                                              - 29 -
       Citing Testan, 424 U.S. at 401, the Federal Circuit’s decision in Casa de Cambio
affirmed the basic principle that an illegal exaction is its own, independent category of
Tucker Act claim. 291 F.3d at 1363. In Casa de Cambio, the issue of whether the plaintiff
had invoked a money-mandating provision of law was squarely before the Court of
Federal Claims. 48 Fed. Cl. at 140–41. The Court of Federal Claims dismissed plaintiff’s
putative money-mandating claims “for lack of jurisdiction,” concluding that “the
relevant [regulatory] provisions do not provide for monetary relief if violations
occur[.]” Id. On the other hand, the Court of Federal Claims dismissed plaintiff’s illegal
exaction claim for failure to state a claim, specifically concluding that “[i]n illegal
exaction cases, in contrast to other actions for money damages, jurisdiction exists even
when the Constitutional provision allegedly violated does not contain compensation
mandating language.” Id. at 143–44. On appeal, the Federal Circuit affirmed, but with
nary a mention of the lack of money-mandating provision. To the contrary, the Federal
Circuit recognized that its “cases have established that there is no jurisdiction under the
Tucker Act over a Due Process claim unless it constitutes an illegal exaction.” Casa de
Cambio, 291 F.3d at 1363 (emphasis added) (citing cases, including Testan). 25

        As noted above, however, decisions of this Court increasingly have blurred the
clear, longstanding distinction between illegal exaction and money-mandating claims.
This (relatively) new line of authority appears to rely primarily upon the Federal
Circuit’s decision in Norman, 429 F.3d at 1095, for the proposition that “the Federal
Circuit has indicated that even in the case of an illegal exaction, a claimant must satisfy
the usual money-mandating requirement of the Tucker Act.” Starr Int’l Co. v. United
States, 106 Fed. Cl. 50, 61 (2012), vacated in part 856 F.3d 953 (Fed. Cir. 2017); see, e.g.,
Starr Int’l Co., Inc. v. United States, 856 F.3d at 978 (Wallach, J., concurring-in-part and
concurring-in-the-result) (highlighting the “apparent inconsistencies in [the Federal
Circuit’s] application of the money-mandating requirement to illegal exaction claims”
following Norman). 26


25 But see Burbank, 87 Tenn. L. Rev. at 349-352 (critiquing the “due process plus” theory of illegal
exactions and instead persuasively arguing for a conception of illegal exactions as “common
law claims” that “fit within its own category of wrongdoing: a uniquely sovereign act that
illegally disgorges property for the government’s benefit”).
26 See also Boeing Co. v. United States, 143 Fed. Cl. 298, 304 (2019) (“Discerning no conflict
between Norman and Aerolineas Argentinas, the court concludes that Boeing also must show that
41 U.S.C. § 1503(b) is money-mandating to establish jurisdiction for its illegal exaction claim.”);
eVideo Owners, 126 Fed. Cl. at 105 (citing Norman for the proposition that “a claimant must
demonstrate that the statute or provision causing the exaction itself provides ... that ‘the remedy
for its violation entails a return of money unlawfully exacted’” (additional citations omitted));
Kipple v. United States, 102 Fed. Cl. 773, 777 (2012) (discussing Norman with approval); Elliott v.
United States, 96 Fed. Cl. 666, 669 (2011) (citing Norman for the proposition that “[t]he illegal
exaction must be based on a statutory power”); Strategic Hous. Fin. Corp. of Travis Cnty. v. United
States, 86 Fed. Cl. 518, 529 n.23 (2009) (highlighting how Norman redefined what a plaintiff must

                                               - 30 -
        But there are good reasons to pause before adopting that language in Norman as
authoritative. First, Norman was decided by a three-judge panel; absent an en banc
decision, however, the court remains bound by earlier precedent, 27 discussed at length
above, distinguishing between illegal exaction and money-mandating claims. 28 Second,
the language in question from Norman is dicta, insofar as that case focused on a takings
claim and the money-mandating issue was not essential to the decision. 29 Third, and
most significantly, the questionable language in Norman — upon which the government
and decisions from this Court have relied to impose money-mandating requirements on
illegal exaction claims — is derived from the Federal Circuit’s decision in Cyprus Amax
Coal Co. v. United States. See Norman, 429 F.3d at 1095 (quoting Cyprus Amax Coal Co. v.
United States, 205 F.3d 1369, 1373 (Fed. Cir. 2000)). But, while Cyprus Amax merely used
the phrase “unlawfully exacted,” that case held that the U.S. Constitution’s Export
Clause, 30 “when fairly interpreted, affords an independent cause of action for monetary
remedies.” 31 That is the language of money-mandating cases, and, in that regard, the

do to “invoke Tucker Act jurisdiction over an illegal exaction claim”), aff’d in part, vacated in part,
608 F.3d 1317 (Fed. Cir. 2010); Powers v. United States, 2015 WL 4931482, at *9 (Fed. Cl. Aug. 18,
2015) (citing Norman for the assertion that “[b]ecause the court has held that the debt collection
statutes upon which plaintiff relies are not money-mandating, plaintiff has failed to state an
illegal exaction claim upon which relief can be granted”); but see Sin Hang Lee v. United States,
142 Fed. Cl. 722, 727–28 (2019) (citing Norman, but explaining that “to pursue a substantive right
against the United States under the Tucker Act, a plaintiff must identify and plead [1] a money-
mandating constitutional provision, statute, or regulation; [2] an express or implied contract
with the United States; or [3] an illegal exaction of money by the United States”).
27
  In re Rudy, 956 F.3d 1379, 1383 (Fed. Cir. 2020) (“‘[P]rior decisions of a panel of the court are
binding precedent on subsequent panels unless and until overturned [e]n banc.’” (quoting
Newell Cos. v. Kenney Mfg. Co., 864 F.2d 757, 765 (Fed. Cir. 1988)).

28Prior to Norman, the Federal Circuit required a plaintiff only to plead facts showing that
“money ha[d] been improperly exacted or retained by the government[,]” and nothing more;
there was no additional money-mandating requirement. Casa de Cambio, 291 F.3d at 1364
(quoting Testan, 424 U.S. at 401)); see 291 F.3d at 1363 (“Our cases have established that there is
no jurisdiction under the Tucker Act over a Due Process claim unless it constitutes an illegal
exaction.”); see also Aerolineas Argentinas, 77 F.3d at 1578 (discussing plaintiff’s illegal exaction
claim and stressing that the Court “need not discuss alternative theories of jurisdiction and
recovery offered by the airlines, including theories of . . . money-mandating statute[s]”).
29Norman, 429 F.3d at 1096 (“Assuming arguendo that illegal exaction principles are ever
applicable to actions against the United States for just compensation for an alleged taking of real
property, we agree with the trial court that” the statute in question did not directly result in an
exaction so as to satisfy the jurisdictional prerequisite for maintaining an illegal exaction claim).
30The Export Clause provides that “[n]o Tax or Duty shall be laid on Articles exported from any
State.” U.S. Const. art. I, 9, cl. 5.
31205 F.3d at 1373-74 (“We also hold that the cause of action based on the Export Clause is self-
executing; that is, similar to the Compensation Clause, a party can recover for payment of taxes

                                                - 31 -
Federal Circuit explicitly has recognized Cyprus Amax as an example of a money-
mandating case, notwithstanding that the Export Clause also may serve as the basis for
an illegal exaction claim. 32

       Indeed, the Federal Circuit has explained that the Export Clause is unique:
“[u]nlike most substantive rights asserted under Tucker Act jurisdiction, the Export
Clause may form the basis for both the second and third categories of claims.” Ontario
Power, 369 F.3d 1298 at 1301-02 (emphasis added). Thus, Cyprus Amax itself cannot be
read as defining the nature of illegal exaction claims, and Ontario Power explicitly held
that the Export Clause may serve as the basis for two different types of Tucker Act
causes of action: money-mandating and illegal exaction claims.

       Several more recent Federal Circuit decisions appear not to endorse the language
from Norman that would impose money-mandating requirements on illegal exaction
claims. In Lummi Tribe of the Lummi Reservation, Washington v. United States, for example,
an Indian tribe and three tribal housing entities brought suit under the Tucker Act and
Indian Tucker Act, alleging that the government improperly deprived them of grant
funds to which they were entitled pursuant to the Native American Housing Assistance
and Self-Determination Act of 1996 (“NAHASDA”). 870 F.3d 1313, 1314-15 (Fed. Cir.
2017). This Court had held that while NAHASDA itself is money-mandating, “the
failure to give a hearing under [the statutory scheme at issue] does not, on its own,
support an illegal exaction claim.” Id. at 1317. Because the money-mandating decision
was dispositive as to jurisdiction, the government sought and obtained certification for
interlocutory appeal, while the plaintiffs sought reconsideration of this Court’s illegal
exaction holding, which this Court had denied. Id.

        On appeal, the Federal Circuit reversed, holding that this Court “erred in finding
NAHASDA to be money mandating.” Id. at 1319 (“Here, the underlying claim is not for
presently due money damages. It is for larger strings-attached NAHASDA grants—
including subsequent supervision and adjustment—and, hence, for equitable relief.”).
Under the more recent decisions, applying Norman’s money-mandating language to
illegal exaction claims, the Federal Circuit’s jurisdictional inquiry should have ended.
But, rather than call it quits with the money-mandating analysis, the appellate court
continued on to reject explicitly the plaintiffs’ alternative argument that “alleged
procedural failures associated with HUD's grant decision resulted in a per se illegal

under the Export Clause independent of the tax refund statute.”).
32 Ontario Power, 369 F.3d at 1301-02 (discussing the “three types” of “underlying monetary
claims” under the Tucker Act, and concluding that “[u]nlike most substantive rights asserted
under Tucker Act jurisdiction, the Export Clause may form the basis for both the second and
third categories of claims”); id. at 1302 (describing Cyprus Amax as holding that the “Export
Clause is money-mandating”); cf. White v. United States, 2012 WL 252008, at *2 (Fed. Cl. Jan. 9,
2012) (“The Due Process Clause is money-mandating only when the theory of recovery is an
illegal exaction.”).

                                               - 32 -
exaction, independently conferring jurisdiction on the Claims Court.” Lummi Tribe, 870
F.3d at 1319 (emphasis added).

        Notably, the Federal Circuit did not simply reject out-of-hand the notion that an
illegal exaction claim may provide this Court with an independent basis for Tucker Act
jurisdiction. Nor did the Federal Circuit pause to comment that the lack of a money-
mandating provision foreclosed the possibility of an illegal exaction claim. Instead, the
Federal Circuit held that “[a]n illegal exaction claim must be based on property taken
from the claimant, not property left unawarded to the claimant, rendering the Tribes’
exaction claim invalid on its face.” Id. (rejecting plaintiffs’ claims where plaintiffs “have
not and cannot provide legal support for the notion that the failure to disburse property
that was never in the claimant’s possession or control constitutes an exaction”).

        Similarly, in Virgin Islands Port Auth. v. United States, Senior Judge Bruggink
described the “two classes of non-contractual [Tucker Act] claims” and held that a
“[p]laintiff need not point to a money-mandating provision” to support the existence of
an illegal-exaction claim “because the necessary remedy to the government improperly
using its authority to place a citizen’s money in its pocket is a return of that sum.” 136
Fed. Cl. 7, 13-14 (2018), aff’d, 922 F.3d 1328 (Fed. Cir. 2019); see also 136 Fed. Cl. at 14
(“We see no further obligation under . . . illegal exaction claims[] for a plaintiff to point
to anything in the statute or regulation on which the government relies that anticipates
an abuse of the statute and authorizes the plaintiff to sue for return of the monies.”).
Put differently still, “[t]he focus of an illegal exaction claim brought in this court is
whether the United States government has the citizen’s money in contravention of
United States law.” Id. at 16. In affirming that decision granting summary judgment,
the Federal Circuit did not disagree with, or otherwise question, this Court’s
jurisdiction or Senior Judge Bruggink’s characterization of illegal exaction claims. See
922 F.3d at 1333-34 (reaching merits of illegal exaction claim and concluding that the
court “need not resolve the issue of whether Customs’ collection constitutes an ‘in
effect’ illegal exaction because this is a merits issue, not a jurisdictional one”). In
reaching the merits, but without searching for a money-mandating provision of law, the
Federal Circuit at least implicitly concluded that Senior Judge Bruggink’s jurisdictional
decision was correct. 33 Id.


33The government in its motion for summary judgment in Virgin Islands Port Authority
specifically relied upon Cyprus Amax Coal Co., arguing that “[t]o invoke Tucker Act jurisdiction
over an illegal exaction claim, a claimant must also demonstrate that the statute or provision
causing the exaction itself provides, either expressly or by ‘necessary implication,’ that ‘the
remedy for its violation entails a return of money unlawfully exacted.’” Def. Mot. for Summary
Judgment (ECF No. 51) at 34, Virgin Islands Port Authority v. United States, 136 Fed. Cl. 7 (2018)
(No. 13-390) (quoting Cyprus Amax Coal Co., 205 F.3d at 1373); see Brief of Defendant-Appellee,
Fed. Cir. No. 2018-1698, at 24, 29, 41 (discussing Cyprus Amax and citing Norman, 429 F.3d at
1095). Senior Judge Bruggink explicitly rejected that jurisdictional argument, and the Federal
Circuit implicitly affirmed his conclusion, particularly given that the government briefed the

                                              - 33 -
        While it is true that “if the money-mandating requirement did not apply to
illegal exaction claims, then any Government violation of a constitutional provision,
statute, or regulation could result in a claim for money damages against the
Government[,]” 34 the opposite possibility is equally troubling: 35 a government agency
could compel — directly or in effect — a private party to pay a fee (or a fine), but the
Tucker Act would provide no remedy for the return of such sum improperly collected,
unless there also were a money-mandating provision that independently required the
government to return the money. And, the possible availability of APA remedies
elsewhere would not stop the government from arguing against jurisdiction
everywhere. See Lummi Tribe, 870 F.3d at 1319 (expressing “severe misgivings about the
incongruency of [the government’s] stances in this and related litigation” where “it
appears that the government has taken, essentially, the opposite position in at least one
of our sister circuits in parallel litigation”).

        In light of the above discussion, the Court is convinced that “[a]n exaction claim
provides an independent basis for jurisdiction and is a type of claim that the Tucker Act
and the Little Tucker Act were designed to address.” Allegheny Techs. Inc. v. United
States, 144 Fed. Cl. 126, 136 (2019); see Figueroa v. United States, 57 Fed. Cl. 488, 499 (2003)
(“In the context of an illegal exaction, the court has jurisdiction regardless of whether
the provision relied upon can be reasonably construed to contain money-mandating
language.” (citing Bowman, 35 Fed. Cl. at 401)), aff’d, 466 F.3d 1023 (Fed. Cir. 2006), cert.
denied, 550 U.S. 933 (2007). 36 As demonstrated above, several recent Federal Circuit


issue on appeal.
34   Starr Int’l Co., 856 F.3d at 978 (Wallach, J., concurring-in-part and concurring-in-the-result).
35 N. California Power Agency v. United States, 122 Fed. Cl. 111, 116 (2015) (“Even though [the
statutory provision at issue] does not contain an express statement that the remedy for violating
the statute’s proportionality provision is a return of the money paid over to the Government,
the lack of express money-mandating language in the statute does not defeat Plaintiffs’ illegal
exaction claim. . . . Otherwise, the Government could assess any fee or payment it wants from a
plaintiff acting under the color of a statute that does not expressly require compensation to the
plaintiff for wrongful or illegal action by the Government, and the plaintiff would have no
recourse for recouping the money overpaid. Overpayment claims are one of the quintessential
illegal exaction claims . . . .” (citing cases, including Norman)).

36 Whether the Tucker Act codifies a type of Federal common law claim, or simply a type of due
process claim, see Burbank, 87 Tenn. L. Rev. at 349-352, this Court expresses no view. The Due
Process Clause theory of illegal exaction claims appears, however, to be supported by the
weight of the case law. See Casa de Cambio, 291 F.3d at 1363 (“Our cases have established that
there is no jurisdiction under the Tucker Act over a Due Process claim unless it constitutes an
illegal exaction.”); Augusta v. United States, No. 18-883C, 2018 WL 6721748, at *3 (Fed. Cl. Dec.
20, 2018) (“The Due Process Clause of the Fifth Amendment may only be a basis for our
jurisdiction when a claim concerns an illegal exaction.” (citing Aerolineas Argentinas, 77 F.3d at
1573)); Hawkins v. United States, No. 18-78L, 2018 WL 3214048, at *7 n.3 (Fed. Cl. June 29, 2018)

                                                   - 34 -
decisions either support, or are not inconsistent with the Court’s view here. See, e.g.,
Virgin Islands Port Auth., 922 F.3d at 1333-34; Lummi Tribe, 870 F.3d at 1319; Ontario
Power, 369 F.3d 1298 at 1301-02; see also Piszel v. United States, 833 F.3d 1366, 1382 n.11
(Fed. Cir. 2016). 37 In sum, there is no basis to engraft money-mandating requirements
onto illegal exaction claims. 38 Accordingly, unless and until the Federal Circuit




(“The one exception is that our court does have jurisdiction over illegal exaction claims under
the Due Process Clause of the Fifth Amendment. To make such a claim, the plaintiff would have
to show that the government took the plaintiff's money and that this exaction violated due
process.” (citing Aerolineas Argentinas, 77 F.3d at 1572-73)), aff’d 748 F. App’x 325 (Fed. Cir. 2019);
cf. Arrowood Indemnity Co. v. United States, -- Fed. Cl. --, 2020 WL 2510452, at *20 (May 15, 2020)
(“When a party pleads the predicates for a takings claim or illegal-exaction claim, the court
possesses jurisdiction to entertain such claims. . . . Those claims, at a basic level, are contentions
that the government expropriated private property lawfully (takings) or unlawfully (illegal
exaction). . . .If a party alleges the necessary predicates for these claims, the court is not
deprived of jurisdiction even if the complaint . . . could support a tort claim.”).
37In Piszel, the Court of Federal Claims dismissed a complaint where “there [was] no way to
read the allegations in the complaint to state a plausible illegal exaction claim.” Piszel v. United
States, 121 Fed. Cl. 793, 802 (2015), aff’d, 833 F.3d 1366 (Fed. Cir. 2016). Thus, the trial court
granted the government’s motion to dismiss the complaint for “failure to state a claim”
pursuant to RCFC 12(b)(6), and the Federal Circuit affirmed, similarly reasoning that
“Mr. Piszel’s complaint fails to state a claim on which relief can be granted.” 833 F.3d at 1369;
see id. at 1372 (“noting that “[t]he government moved to dismiss under Rule 12(b)(6) of the
Rules of the United States Court of Federal Claims”). The Federal Circuit explained that “there
was no exaction here because there was no payment.” 833 F.3d at 1382. Notably, however, the
Federal Circuit pointed out that the plaintiff, for the first time, on appeal, argued that the
primary statute at issue – the Housing and Economic Recovery Act (HERA) – was money-
mandating. Id. at n.11. While the plaintiff “failed to plead such a claim,” and the appellate
court concluded that “there [was] no basis for such an assertion,” the Federal Circuit never
suggested that it or the Court of Federal Claims somehow lacked jurisdiction over the illegal
exaction claim that was at issue.
38Usibelli Coal Mine v. United States, 54 Fed. Cl. 373, 379 (2002) (“First, it is apparent that the
Federal Circuit viewed the Export Clause as a money-mandating provision that authorized the
award of money damages, thereby allowing a claimant to file an action based directly on that
clause. Second, relatedly, the court viewed such a damages action as distinct from a tax refund
suit, and thus divorced from the illegal exaction doctrine described in Eastport. That the court's
opinion, on several occasions, referred to the Coal Tax as an ‘illegal exaction’ does not suggest
otherwise. Per contra. The overall methodology employed by the court, liberally spiced with
references to Testan, [] and Mitchell, [] manifestly is that typically employed in identifying
money-mandating provisions in the law.”), rev’d on other grounds, 311 F. App’x 350 (Fed. Cir.
2008); see also Lion Raisins, 54 Fed. Cl. at 376 (noting that “a tax refund suit” – a classic illegal
exaction type claim – “does not involve a demand for damages based on the existence of some
money-mandating statute or Constitutional provision”).

                                                - 35 -
definitively resolves this issue in a contrary manner, 39 the undersigned is of the view
that a plaintiff need not identify a money-mandating provision of law to invoke this
Court’s jurisdiction for an illegal exaction claim.

           2. Mr. Perry’s Complaint Does Not Contain Sufficient Facts To State An
              Illegal Exaction Claim Within This Court’s Jurisdiction Or Fails To State
              A Claim As A Matter Of Law Upon Which Relief Can Be Granted

       In light of the above discussion, the Tucker Act’s illegal exaction claim category
covers the general thrust of Mr. Perry’s Complaint here. Thus, the Court easily can
imagine a case in which a government agency, such as the USPTO, improperly charges,
or overcharges, a party for the agency’s services or for a party’s participation in a
government program — or any other innumerable similar scenarios — but then, for
whatever reason, declines to issue a refund. 40 Unlike a takings claim, where a plaintiff
must concede the validity or legality of an agency’s action, an illegal exaction claim
typically is premised, in contrast, upon “the absence of statutory authorization.”
Aerolineas Argentinas, 77 F.3d at 1578-79; see Reid, 2020 WL 2764753, at *19 (“When the
government expropriates property, a plaintiff can obtain relief under either a takings
theory or an illegal-exaction theory, . . . but not both. . .The winning claim depends on
the facts established; a takings claim requires lawful conduct, while an illegal-exaction
claim is premised on unauthorized conduct.” (internal citations omitted)). 41

39See Starr Int’l Co., 856 F.3d at 978 (Wallach, J., concurring-in-part and concurring-in-the-result)
(explaining his view “that a party bringing an illegal exaction claim must identify a separate
money-mandating source of substantive law entitling it to compensation,” that “the weight of
our illegal exaction case law supports this conclusion[,]” and that “[i]t is regrettable that the
majority chooses to bypass this opportunity to clarify the law for future cases”).
40Auto Club Ins. Ass’n, 103 Fed. at 273 (“[Plaintiff] is correct that the Tucker Act encompasses a
claim of illegal exaction (a non-tortious, non-contractual claim for money damages)”).
41Fairholme Funds, Inc. v. United States, 147 Fed. Cl. 1, 40 (2019) (“When a party pleads the
predicates for a takings claim or illegal-exaction claim, the court possesses jurisdiction to
entertain such claims. . . . Those claims, at a basic level, are contentions that the government
expropriated private property lawfully (takings) or unlawfully (illegal exaction).”), motion to
certify appeal granted, 147 Fed. Cl. 126 (2020); Orient Overseas Container Line (UK) Ltd. v. United
States, 48 Fed. Cl. 284, 289 (2000) (“Takings claims arise because of a deprivation of property
that is authorized by law. Illegal exactions arise when the government requires payment in
violation of the Constitution, a statute, or a regulation.”); Mallow v. United States, 161 Ct. Cl. 446,
450 (1963) (Tucker Act provided jurisdiction in the Court of Claims for recovery of money that
the government illegally collected from the plaintiff as fines under void convictions and
sentences); Suwannee S.S. Co. v. United States, 150 Ct. Cl. 331, 335–36 (1960) (ship owner may
recover payment illegally exacted as a condition of receiving permission to sell ship to a foreign
purchaser); Seatrade Corp. v. United States, 152 Ct. Cl. 356, 360 (1961) (same); Eversharp, Inc. v.
United States, 125 F. Supp. 244, 246–47 (Ct. Cl. 1954) (finding jurisdiction and explaining “that, if
the plaintiff is right in its interpretation of the Renegotiation Act, and that Act does contemplate
the collection of interest at a reasonable rate, and six percent interest is unreasonable, the

                                                 - 36 -
        Although this “Court should hesitate before ruling that it lacks subject-matter
jurisdiction over a claim of illegal exaction[,]” Fireman v. United States, 44 Fed. Cl. 528,
535 (1999), Mr. Perry’s Complaint, at a minimum, must contain the requisite factual
allegations necessary to support such a claim. Harris 2014 WL 10936253, at *1 n.4
(dismissing plaintiff’s illegal exaction claim because “ambiguous statements [in the
complaint] regarding the presence of an illegal exaction” did not suffice to establish this
Court’s subject-matter jurisdiction); see Crow Creek Sioux Tribe, 900 F.3d at 1354–55 (“’To
survive a motion to dismiss . . . a complaint must contain sufficient factual matter’ that
would plausibly establish . . . [jurisdiction, and] “’[t]hreadbare recitals of the elements
. . . supported by mere conclusory statements, do not suffice.’” (quoting Iqbal, 556 U.S.
at 678)). Here, the complete lack of any factual allegations contained in Mr. Perry’s
Complaint to support an illegal exaction claim precludes this Court from exercising
subject-matter jurisdiction.

        The Federal Circuit’s decision in Aerolineas Argentinas, for example, illustrates the
sort of allegations a complaint must contain for this Court to possess jurisdiction over
an illegal exaction claim. In that case, the Federal Circuit held that the Court of Federal
Claims improperly dismissed plaintiff’s illegal exaction claim, noting that the airline
had pleaded sufficient facts to support jurisdiction. 77 F.3d at 1578. Indeed, the court
highlighted that the airline’s complaint laid out specific factual assertions that were
necessary to support an illegal exaction claim within this Court’s Tucker Act
jurisdiction. Id. (“The Service improperly required the airlines to take custody, pending
processing and decision of asylum petitions, of aliens who were in ‘stowaway’ status
because they destroyed or concealed their travel documents.”). The Federal Circuit
further emphasized that the airline’s complaint pointed to specific legal bases for the
alleged illegal exaction. 77 F.3d at 1578 (explaining that plaintiff specifically alleged
that the government “misappli[ed] [] 8 C.F.R. § 235.3(d) to impose on the airlines the
cost of long-term detention of excludable aliens, after repeal of INA § 233”).

        In the absence of factual allegations of any specificity regarding the USPTO’s
collection or handling of Mr. Perry’s funds, his Complaint may be dismissed for lack of
jurisdiction. Harris 2014 WL 10936253, at *1 n.4 (“Notwithstanding plaintiff's
ambiguous statements regarding the presence of an illegal exaction claim in the
complaint, the court must agree with defendant that there is no nonfrivolous illegal
exaction claim in this suit.”). Mr. Perry’s Complaint with regard to his putative illegal
exaction claim is “[a]mbiguous” at best, as he does not point to a particular basis to

plaintiff's claim is founded upon the misinterpretation and misapplication of an Act of
Congress.”); Pan American World Airways v. United States, 129 Ct. Cl. 53, 55 (1954) (“the collection
of money by Government officials, pursuant to an invalid regulation” is an illegal exaction and
not a tort); see also Carriso v. United States, 106 F.2d 707, 712 (9th Cir. 1939) (when a government
agent construes a statute as remaining in effect after it has been repealed and uses it as a basis to
collect fees, a claim to recover the fees is “founded upon a law of Congress” and “does not
sound in tort”).

                                               - 37 -
support the conclusory assertion that the USPTO exacted, or is holding, his money in
violation of law. Id.; see Compl. ¶ 112 (“the USPTO is intentionally doing illegal things
and covering up facts with more illegal practices”). As such, the Court doubts
Mr. Perry’s Complaint meets the pleading standards to vest this Court with jurisdiction
over his putative illegal exaction claim.

        Nevertheless, as explained supra, the preferred approach is to dismiss the claim
on the merits (i.e., pursuant to RCFC 12(b)(6)). See Carter, 794 F.3d at 807; Carr, 591 F.3d
at 917; see also Fireman, 44 Fed. Cl. at 535 (“[This] Court should hesitate before ruling
that it lacks subject matter jurisdiction over a claim of illegal exaction”); 42 XP Vehicles,
121 Fed. Cl. at 779 (“A claim that survives a jurisdictional challenge remains subject to
dismissal under RCFC 12(b)(6) if it does not provide a basis for the court to grant
relief.”).

       To assert a valid illegal exaction claim that will survive a motion to dismiss
pursuant to RCFC 12(b)(6), a plaintiff’s complaint “must show that: (1) money was
taken by the government and (2) the exaction violated a provision of the Constitution, a
statute, or a regulation.” Piszel 121 Fed. Cl. at 801. Mr. Perry’s illegal exaction claim,
however, does not meet that standard.

        For example, in Piszel, the Court of Federal Claims held that “[b]ecause plaintiff
cannot show that he has paid any money to the government directly or ‘in effect,’ he
fails to state a plausible illegal exaction claim in the complaint” and dismissal under
12(b)(6) was warranted. 121 Fed. Cl. at 802. In affirming that decision, the Federal
Circuit explained that because “no facts as alleged in the complaint concern the
payment of money by [plaintiff]. . . [the] illegal exaction claim must also fail.” Piszel,
833 F.3d at 1382. Nevertheless, the Federal Circuit emphasized that for a plaintiff to
properly plead an illegal exaction claim he or she must seek “’recovery of monies that
the government has required to be paid contrary to law.’” Id. (quoting Aerolineas
Argentinas, 77 F.3d at 1572) (emphasis added). In other words, a plaintiff cannot allege
merely that he or she paid money to the government; rather, a plaintiff also must assert
sufficient facts to demonstrate that such payment was made pursuant to a requirement
that is “contrary to law[.]” Id.; cf. Virgin Islands Port Auth. 922 F.3d at 1337 (holding that
“a mere claim of right is not coercive” and that plaintiff had failed to adequately allege
an illegal exaction claim where plaintiff showed “neither a prohibition nor coercive
government action[]”).



42
  That is true particularly, where, as here, Mr. Perry is a pro se plaintiff. See, e.g., Enron Oil Corp.
v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993) (noting that “as a general rule . . . when . . . [a] party is
appearing pro se” courts should reach the merits); cf. Armstrong v. Office of Pers. Mgmt., 314 F.
App’x 269, 271 (Fed. Cir. 2008) (noting that the court will “construe [pro se plaintiff’s] pleadings
liberally . . . and reach the merits of her case[]”); Gunn v. U.S. Postal Serv., 25 F. App’x 895, 896
(Fed. Cir. 2001) (“[T]he court extends that leniency to reach the merits of Gunn’s pro se appeal.”).

                                                 - 38 -
       Similarly, in Aerolineas Argentinas, recall that the Federal Circuit explained that
the plaintiffs had established jurisdiction in the Court of Federal Claims when they
pleaded “a claim for the recovery of monies that they assert were illegally exacted.” 77
F.3d at 1573–74. The court examined whether the regulation upon which the
government relied had been “misinterpreted, misapplied, or [was] invalid.” Id. In so
doing, the Federal Circuit noted “[i]f the [plaintiffs] fail to establish that the exaction
was contrary to law, that failure does not deprive the court of jurisdiction, but serves as
an adjudication on the merits.” Id. at 1574. Here, there is no allegation — factual or
otherwise — demonstrating how or why Mr. Perry’s alleged payment to the USPTO
“was contrary to law.” Id. Thus, even where “jurisdiction has been established,” this
Court must nonetheless dismiss the complaint where it “does not assert a set of facts
which if proven would support the claim.” 77 F.3d at 1572 (citing Bell, 327 U.S. at 682).
In such a case — that is, when a plaintiff’s complaint fails to plead sufficient facts to
support his or her purported illegal exaction claim — any “dismissal is deemed an
adjudication on the merits.” 77 F.3d at 1572 (citing Bell, 327 U.S. at 682).

        These cases stand for the proposition that — just as the Court indicated with
regard to the pleading requirements for contracts and takings claims — mere
conclusory legal characterizations or recitations of claim elements do not suffice to state
an illegal exaction claim upon which relief can be granted. See Laguna Hermosa, 671 F.3d
at 1288 (plaintiff must “elevate a claim for relief to the realm of plausibility” pursuant to
RCFC 12(b)(6)). The Court thus finds 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. See Bradley, 136 F.3d 1322 (“Conclusory allegations of law and unwarranted
inferences of fact do not suffice to support a claim.”).

        Thus, even assuming that this Court has jurisdiction to consider Mr. Perry’s
illegal exaction claim, because his Complaint contains no factual allegations
demonstrating any sum improperly exacted or retained, he has failed to state an illegal
exaction claim as a matter of law. Accordingly, Mr. Perry’s claims — to the extent they
relate to USPTO fees alleged to have been improperly collected or retained — are
dismissed pursuant to RCFC 12(b)(1) or, in the alternative, pursuant to RCFC 12(b)(6). 43



43 As noted, Mr. Perry is a pro se litigant, and thus, as stated supra, his complaint is entitled to a
liberal construction. Nevertheless, even after multiple reviews of his lengthy Complaint, the
Court cannot identify specific factual allegations supporting his illegal exaction claim. To the
extent that any such facts are present in the Complaint, the Court emphasizes that, despite Mr.
Perry’s pro se status, his “[a]rguments . . . are not fleshed out” and thus “are not preserved.”
Stephanatos v. United States, 306 F. App’x 560, 564 (Fed. Cir. 2009) (citing SmithKline Beecham
Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006), and Halliburton Energy Servs., Inc. v.
M–I LLC, 514 F.3d 1244, 1250 n.2 (Fed. Cir. 2008), in support of the proposition that because

                                                 - 39 -
       V.      Mr. Perry’s Remaining Claims Are Frivolous
       Finally, Mr. Perry alleges that representatives from the USPTO broke into his
email account and deleted various emails that he previously had received from the
agency. See, e.g., Pl. Resp. ¶ 2. In turn, he attempted to file — on several occasions — a
request that this Court issue both an injunction and a restraining order against the
USPTO. See ECF No. 15 (permitting filing of plaintiff’s request for injunctive relief);
ECF No. 16 (plaintiff’s opposition, including request for injunctive relief); ECF No. 17
(plaintiff’s separate request for a preliminary injunction and a restraining order); ECF
No. 22 (order rejecting an additional nine attempted filings). Such claims must be
dismissed for lack of jurisdiction pursuant to RCFC 12(b)(1), and because they are
frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i).

        First, as the Court highlighted above and as the government correctly contends,
equitable relief is a remedy which this Court ordinarily may not grant, absent limited
circumstances not present in this case. See 28 U.S.C. § 1491(b)(2) (authorizing
“remand[s]” of “appropriate matters to any administrative or executive body or official
with such direction as it may deem proper and just” where such relief is “incident of
and collateral to” a money judgment); Ute Indian Tribe of Uintah and Ouray Indian
Reservation v. United States, 145 Fed. Cl. 609, 632 n.17 (2019) (quoting James v. Caldera, 159
F.3d 573, 580 (Fed. Cir. 1998), for the proposition that “the Court of Federal Claims has
no power to grant affirmative non-monetary relief unless it is ‘tied and subordinate to a
money judgment’”). In this case, Mr. Perry pleads no facts, which, if proven, would
entitle him to a money judgment, let alone to some sort of equitable relief.

        Second, the Court concludes that Mr. Perry’s claims related to his email account
should be dismissed because they are patently frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i)
(instructing that a court “shall dismiss” an in forma pauperis (“IFP”) proceeding “if the
court determines that . . . the action . . . is frivolous”); see also McCullough v. United States,
76 Fed. Cl. 1, 3 (2006) (holding that pursuant to 28 U.S.C. § 1915(e)(2), once an IFP
plaintiff’s claims are found to be frivolous, “the court shall dismiss the case”); Denton v.
Hernandez, 504 U.S. 25, 33 (1992) (“frivolousness is a decision entrusted to the discretion
of the court”); Taylor v. United States, 568 F. App’x 890, 891 (Fed. Cir. 2014) (summarily
affirming Court of Federal Claims’ dismissal of frivolous complaint pursuant to 28
U.S.C. § 1915(e)(2)(B)(i), and holding that a trial court “is required to dismiss a frivolous
complaint from a litigant who is proceeding in forma pauperis”); Pikulin v. United States,
425 F. App’x 902, 903 (Fed. Cir. 2011) (affirming dismissal of plaintiff’s complaint as
frivolous, as it “provide[d] no basis for jurisdiction in the Court of Federal Claims”).


“plaintiff does not expressly use the term ‘illegal exaction’ or ‘wrongful exaction’ throughout
[the] instant complaint, it [cannot] be construed as if the terms [were] being used throughout
th[e] complaint”). To the extent that Mr. Perry asserted an illegal exaction claim, he fails to state
such a claim as a matter of law upon which relief can be granted.

                                               - 40 -
        Although this Court may not dismiss an IFP complaint merely because plaintiff’s
allegations are “unlikely,” this court must dismiss a claim as frivolous if the alleged facts
present “fantastic” or “delusional” scenarios. Taylor, 568 F. App’x at 891 (quoting
Neitzke v. Williams, 490 U.S. 319, 327 (1989)); see Denton, 504 U.S. at 33 (emphasizing that
“a finding of factual frivolousness is appropriate when the facts alleged rise to the level
of the irrational or the wholly incredible”). A “tale of . . . intrigue” — like parts of
Mr. Perry’s Complaint — may be deemed frivolous where “the factual allegations
asserted are so unbelievable that there is no need for an evidentiary hearing to
determine their veracity.” Taylor, 568 F. App’x at 891. Accordingly, Mr. Perry’s request
for injunctive relief is denied, and his claim for relief is dismissed. 44
                                           CONCLUSION

        The government’s motion to dismiss Mr. Perry’s Complaint is GRANTED, and
the same hereby is DISMISSED for lack of jurisdiction and for failure to state a claim,
pursuant to RCFC 12(b)(1) and 12(b)(6), respectively. To the extent Mr. Perry properly
has filed any pending motions or other requests, they are denied as moot. Furthermore,
given the duplicative and frivolous filings Mr. Perry has attempted in this case, the
Court directs the Clerk’s office to reject any of Mr. Perry’s further submissions in this
action, unless such filings comply with this Court’s rules regarding post-dismissal
submissions. 45


44This Court is compelled to note that Mr. Perry’s repeated attempts to file duplicative,
meritless motions borders on abuse of process. United States v. Nesglo, Inc., 744 F.2d 887, 892 (1st
Cir. 1984) (noting that a “frivolous appeal of a sanction for bringing frivolous litigation borders
on abuse of process”). In that regard, 28 U.S.C. § 1915(e)(2) is a “tool[ ] that [is] available in
extreme cases to protect public officials from undue harassment . . . .” Crawford-El v. Britton, 523
U.S. 574, 600 (1998). This Court will not permit the “squander[ing] [of] the resources of the
court or defendant with frivolous litigation[.]” Chandler v. United States, 31 Fed. Cl. 106, 111
(1994). Moreover, “’[i]t is vital that the right to file in forma pauperis not be incumbered by those
who would abuse the integrity of our process by frivolous filings.’” Zatko v. California, 502 U.S.
16, 18 (1991) (per curiam) (quoting In re Amendment to Rule 39, 500 U.S. 13, 13 (1991) (internal
quotation marks omitted)).
45 The Federal Circuit has suggested that a finding of frivolousness may support such a
directive to the Clerk of Court. See Constant v. United States, 929 F.2d 654, 659 (Fed. Cir. 1991)
(remarking, in light of the plaintiff’s prior frivolous filings, that “we cannot assume that papers
he may hereafter file in this court will be well-founded and presented in good faith[,]” and thus
ordering the clerk “henceforth to accept for filing no . . . fileable paper from [plaintiff] without
an order of the court approving the filing”); Winsett v. MacDonald, 611 F. App’x 710, 714 (Fed.
Cir. 2015) (applying 28 U.S.C. § 1915(e)(2), and noting that, in light of the plaintiff’s “repetitive
filings at this court and [in other] tribunals, we advise that any additional applications to
proceed in forma pauperis should be subject to additional scrutiny”). Indeed, this is not the first
time a court appears to have expressed serious criticism of Mr. Perry’s frivolous litigation
habits. See In re Perry, 2017 WL 1276075, at *2 (C.D. Cal. Mar. 31, 2017) (noting that he “was

                                                - 41 -
       The Clerk is directed to enter judgment accordingly.

       It is so ORDERED.


                                                 Matthew H. Solomson
                                                 Matthew H. Solomson
                                                 Judge




found to be a vexatious litigant by the state courts, [and that] he was required to post a bond
before initiating any state court action”), aff’d, 734 F. App’x 533, 535 (9th Cir. 2018) (denying
“Perry’s requests that this court review prior orders of the bankruptcy court, order
disqualification of the bankruptcy judge, sanction appellees’ attorneys, reinstate federal claims,
[and] enter judgment in Perry’s favor”), cert. denied sub nom. Perry v. JPMorgan Chase Bank, N.A.,
140 S. Ct. 629, 205 L. Ed. 2d 392 (2019); see also In re Perry, 2013 WL 3369310, at *4 (B.A.P. 9th Cir.
July 2, 2013) (noting that a “motions panel of the Ninth Circuit denied Mr. Perry’s motion” to
proceed in forma pauperis “because . . . the appeal is frivolous”), aff’d, 586 F. App’x 283 (9th Cir.
2014). Accordingly, this directive is warranted in light of Mr. Perry’s prior-dismissed filings.
Pikulin, 425 F. App’x at 903 (highlighting that plaintiff “had filed five related suits in the Court
of Federal Claims, as well as numerous suits in the United States District Courts for the
Southern and Eastern Districts of New York[,]” in affirming the Court of Federal Claims’
dismissal of plaintiff’s complaint based on a finding of frivolousness).

                                                 - 42 -
