NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICHARD POLIDI,
Plaintiff-Appellant
v.
MICHELLE K. LEE, JAMES O. PAYNE, ELIZABETH
U. MENDEL, JOHN HEATON, KIMBERLY C.
WEINREICH, UNITED STATES,
Defendants-Appellees
______________________
2018-2277
______________________
Appeal from the United States District Court for the
Eastern District of Virginia in No. 1:17-cv-01133-LMB-
IDD, Judge Leonie M. Brinkema.
______________________
Decided: November 8, 2019
______________________
RICHARD POLIDI, Raleigh, NC, pro se.
KIMERE JANE KIMBALL, Office of the United States At-
torney for the Eastern District of Virginia, Alexandria, VA,
for defendants-appellees. Also represented by G. ZACHARY
TERWILLIGER.
______________________
2 POLIDI v. LEE
Before LOURIE, DYK, and MOORE, Circuit Judges.
PER CURIAM.
Richard Polidi appeals the decision of the United
States District Court for the Eastern District of Virginia
dismissing his complaint for lack of subject matter jurisdic-
tion. We conclude that we lack jurisdiction over this appeal
but decline to transfer because Polidi’s claim is frivolous.
We therefore dismiss Polidi’s appeal.
BACKGROUND
On July 21, 2014, Polidi surrendered his license to
practice law in North Carolina after conceding that he
could not successfully defend himself in a pending profes-
sional misconduct investigation. He was subsequently dis-
barred. In 2015, the United States Patent Office
(“USPTO”) initiated reciprocal disciplinary proceedings
against Polidi based on his disbarment in North Carolina.
After Polidi failed to file a response to the USPTO’s notice
within the response deadline, 1 the USPTO imposed recip-
rocal discipline and excluded Polidi from practicing before
the USPTO. Polidi petitioned for judicial review of the
USPTO’s decision, and the district court affirmed that de-
cision and dismissed his petition for judicial review. We
affirmed the district court’s decision, holding that, inter
alia, Polidi failed to demonstrate “any reasonable basis as
to why his request [for discovery] was appropriate” and his
argument that the USPTO disciplinary proceedings vio-
lated his due process rights was meritless. Polidi v. Matal,
709 F. App’x 1016, 1018 (Fed. Cir. 2017).
On July 14, 2017, Polidi filed a civil action in Virginia
state court alleging various state tort law claims against
certain USPTO officials. Those officials were: Michelle K.
1 Polidi received three extensions to the forty-day
deadline under
37 C.F.R. § 11.24.
POLIDI v. LEE 3
Lee, former USPTO Director; James Payne, former Deputy
General Counsel; Elizabeth U. Mendel, Associate Solicitor;
John Heaton, Associate Counsel; and Kimberly Weinreich,
Office of Enrollment and Discipline Staff Attorney (collec-
tively, “appellee USPTO officials”). The case was subse-
quently removed to the district court, where Polidi
amended his complaint, dropping his state tort claims and
adding claims for (1) declaratory judgment against the
United States and appellee USPTO officials, (2) monetary
damages under Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics,
403 U.S. 388 (1971) against ap-
pellee USPTO officials, and (3) relief under
18 U.S.C. §
1964(c) (“RICO”) against appellee USPTO officials.
The district court dismissed Polidi’s claims against the
United States for lack of subject matter jurisdiction on
ground of sovereign immunity. The district court noted
that even if it did have jurisdiction, Polidi’s claims would
have been barred under the doctrine of claim preclusion by
our earlier decision in Polidi v. Matal. The district court
dismissed Polidi’s claims against the appellee USPTO offi-
cials for lack of subject matter jurisdiction on ground of ab-
solute quasi-judicial immunity. The district court held in
the alternative that Polidi’s complaint (1) failed to allege a
plausible due process claim as to his request for declaratory
judgment and monetary damages under Bivens; and (2)
failed to allege a plausible claim under RICO. Polidi ap-
peals.
DISCUSSION
This circuit has exclusive jurisdiction over any appeal
of a district court’s final judgment “in any civil action aris-
ing under . . . any Act of Congress relating to patents.”
28
U.S.C. § 1295(a)(1). Our jurisdiction extends “only to those
cases in which a well-pleaded complaint establishes either
that federal patent law creates the cause of action or that
the plaintiff’s right to relief necessarily depends on resolu-
tion of a substantial question of federal patent law.”
4 POLIDI v. LEE
Christianson v. Colt Indus. Operating Corp.,
486 U.S. 800,
809 (1988). When a cause of action is not created by federal
patent law, it nonetheless “aris[es] under” federal patent
law if it presents a patent issue that is “(1) necessarily
raised, (2) actually disputed, (3) substantial, and (4) capa-
ble of resolution in federal court without disrupting the fed-
eral-state balance approved by Congress.” Jang v. Bos. Sci.
Corp.,
767 F.3d 1334, 1336 (Fed. Cir. 2014) (quoting and
applying Gunn v. Minton,
568 U.S. 251, 258 (2013), to
28
U.S.C. § 1295(a)(1)).
Polidi’s amended complaint contains three claims for
relief: (1) declaratory judgment under
28 U.S.C. § 2201, (2)
monetary damages under Bivens, and (3) relief under
18
U.S.C. § 1964(c) (“RICO”). None of Polidi’s claims “arises
under” federal patent law. First, no claims here allege a
cause of action created by federal patent law. Second, Pol-
idi’s amended complaint fails to raise any substantial issue
of patent law that is necessary for the disposition of his
case. See Jang, 767 F.3d at 1336. Thus, we lack jurisdic-
tion to review Polidi’s appeal. See Goldstein v. Moatz,
364
F.3d 205, 210 n.8 (4th Cir. 2004).
Under
28 U.S.C. § 1631, this court may transfer an ac-
tion that is filed in the wrong court “if it is in the interest
of justice.” We conclude that transfer is not in the interest
of justice since Polidi’s claims are frivolous. See Galloway
Farms, Inc. v. United States,
834 F.2d 998, 1005 (Fed. Cir.
1987) (finding that “[j]ustice does not require transfer to
any other court” under
28 U.S.C. § 1631 when appellant’s
claim was frivolous).
“[T]he general rule is that ‘[w]hen an issue of fact or
law is actually litigated and determined by a valid and final
judgment, and the determination is essential to the judg-
ment, the determination is conclusive in a subsequent ac-
tion between the parties, whether on the same or a
different claim.” B&B Hardware, Inc. v. Hargis Indus.,
135
S. Ct. 1293, 1303 (2015) (quoting Restatement (Second) of
POLIDI v. LEE 5
Judgments § 27); Intellectual Ventures I LLC v. Capital
One Fin. Corp.,
937 F.3d 1359, 1373 (Fed. Cir. 2019) (“De-
fensive collateral estoppel is issue preclusion in which the
defendant seeks to bar the plaintiff from relitigating an is-
sue on which the plaintiff has lost against a different de-
fendant in a prior case.”). Polidi’s declaratory judgment
and Bivens claims are premised on assertions that the
USPTO violated his due process rights in his disciplinary
proceeding—the same assertions he raised and were de-
cided in the prior case—and those claims are barred by is-
sue preclusion. Polidi v. Lee, No. 1:15-cv-1030,
2015 WL
13674860, at *3,
2015 U.S. Dist. LEXIS 191329, at *6–7
(E.D. Va. Nov. 24, 2015), aff’d sub nom. Polidi v. Matal, 709
F. App’x 1016 (Fed. Cir. 2017). That judgment remains
conclusive here. His RICO claim is likewise facially with-
out substance. See
18 U.S.C. §§ 1962(c), 1964(c).
Accordingly, we dismiss Polidi’s appeal.
DISMISSED
COSTS
Costs to appellees.
