Case: 21-1961 Document: 37 Page: 1 Filed: 06/13/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DONALD L. BAKER,
Plaintiff-Appellant
v.
GINA M. RAIMONDO, SECRETARY OF
COMMERCE, KATHERINE K. VIDAL, UNDER
SECRETARY OF COMMERCE FOR
INTELLECTUAL PROPERTY AND DIRECTOR OF
THE UNITED STATES PATENT AND TRADEMARK
OFFICE,
Defendants-Appellees
______________________
2021-1961
______________________
Appeal from the United States District Court for the
Eastern District of Virginia in No. 1:20-cv-01245-AJT-
MSN, Judge Anthony J. Trenga.
-------------------------------------------------
DONALD L. BAKER,
Plaintiff-Appellant
v.
GINA M. RAIMONDO, SECRETARY OF
COMMERCE, ANDREW I. FAILE, ACTING
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2 BAKER v. RAIMONDO
COMMISSIONER FOR PATENTS, U.S. PATENT
AND TRADEMARK OFFICE (USPTO), KATHERINE
K. VIDAL, UNDER SECRETARY OF COMMERCE
FOR INTELLECTUAL PROPERTY AND DIRECTOR
OF THE UNITED STATES PATENT AND
TRADEMARK OFFICE, ROBIN O. EVANS,
DIRECTOR, TC 2800, USPTO, ELGIN ENAD,
SUPERVISORY PE, ART UNIT 2837, USPTO,
DAVID S. WARREN, PE, ART UNIT 2837, USPTO,
MARLON T. FLETCHER, PE, ART UNIT 2837,
USPTO, DANIEL SWERDLOW, ART UNIT 3649,
USPTO,
Defendants-Appellees
UNKNOWN EMPLOYEES OF THE DEPARTMENT
OF COMMERCE AND USPTO,
Defendant
______________________
2021-2116
______________________
Appeal from the United States District Court for the
Eastern District of Virginia in No. 1:20-cv-01367-CMH-
MSN, Senior Judge Claude M. Hilton.
______________________
Decided: June 13, 2022
______________________
DONALD L. BAKER, Tulsa, OK, pro se.
MATTHEW JAMES MEZGER, Office of the United States
Attorney for the Eastern District of Virginia, United States
Department of Justice, Alexandria, VA, for defendants-ap-
pellees. Also represented by JESSICA D. ABER.
______________________
Case: 21-1961 Document: 37 Page: 3 Filed: 06/13/2022
BAKER v. RAIMONDO 3
PER CURIAM.
Donald L. Baker appeals from two judgments of the
United States District Court for the Eastern District of Vir-
ginia dismissing two complaints filed by Dr. Baker for lack
of subject matter jurisdiction. For the reasons below, we
affirm both judgments.
BACKGROUND
Dr. Baker represented himself before the U.S. Patent
and Trademark Office (USPTO) in the prosecution of the
four patent applications at issue in this appeal. SAppx.
11. 1 In 2020, dissatisfied with the examination process,
and before filing any administrative appeals, Dr. Baker
filed two civil actions against the Secretary of Commerce,
the Director of the (USPTO), and various unnamed USPTO
employees in the Eastern District of Virginia, alleging that
the patent examiners assigned to his applications were un-
qualified, engaged in fraud, and acted in bad faith.
SAppx. 1, 6–37.
These are not the first cases Dr. Baker has pursued re-
garding the USPTO’s determinations in these applications.
In 2019, Dr. Baker sued the Director and other USPTO em-
ployees in the Northern District of Oklahoma, similarly al-
leging that the examiners assigned to his patent
applications used “junk science,” falsified material facts,
and generally acted in bad faith. See Baker v. Iancu,
No. 19-cv-0289,
2019 WL 5395449, at *1 (N.D. Okla.
Oct. 22, 2019), aff’d, 809 F. App’x 552, 553 (10th Cir. 2020).
1 Citations to “SAppx.” refer to the appendix at-
tached to the Appellees’ brief in Appeal No. 21-1961. Be-
cause the contents of the appendices in the two appeals at
issue overlap significantly, we typically cite only to the ap-
pendix in Appeal No. 21-1961. Where appropriate, we cite
to the appendix attached to the Appellees’ brief in the com-
panion case as “Appeal No. 21-2116 SAppx.”
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4 BAKER v. RAIMONDO
The Northern District of Oklahoma ultimately determined
that it lacked subject matter jurisdiction for two reasons.
Id. at *2. First, because Dr. Baker “admit[ted] that he did
not file an appeal to the” Patent Trial and Appeal Board,
he had thus had not exhausted his administrative reme-
dies, as he was required to do before filing suit in district
court. Id. And second, a patent applicant may only appeal
final decisions of the Board to the Eastern District of Vir-
ginia or the Federal Circuit. Id. Thus, the Northern Dis-
trict of Oklahoma was “not the proper court [in which] to
seek judicial review of the denial of a patent application.”
Id. Accordingly, the district court dismissed the case with-
out prejudice for lack of jurisdiction. Id. at *4. The Tenth
Circuit affirmed, Baker, 809 F. App’x at 553, 2 and the Su-
preme Court denied Dr. Baker’s petition for a writ of certi-
orari,
141 S. Ct. 624 (2020).
In October 2020, Dr. Baker filed the first of the com-
plaints at issue in this appeal in the Eastern District of
Virginia, a complaint effectively identical to that in the Ok-
lahoma case. SAppx. 6–37. Invoking various criminal stat-
utes including the Racketeer Influenced and Corrupt
Organizations Act, Dr. Baker sought, among other things,
to prevent the USPTO from “falsif[ying] . . . paperwork and
. . . material facts in prior art,” “obstructi[ng] . . . his patent
applications,” and using “junk engineering in patent exam-
ination.” SAppx. 30. Dr. Baker listed only two patent ap-
plications as being at issue, SAppx. 11, but attempted to
2 The district court indicated only that the case was
“dismissed for lack of jurisdiction,” without clarifying
whether the case was dismissed with or without prejudice.
Baker,
2019 WL 5395449, at *4. On appeal, the Tenth Cir-
cuit remanded “only for the [district] court to amend its
judgment to reflect that the dismissal is without prejudice.”
Baker, 809 F. App’x at 553. Accordingly, the Oklahoma
case was ultimately dismissed without prejudice.
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BAKER v. RAIMONDO 5
reserve “any and all rights to raise and try” his other two
pending applications, SAppx. 18.
On November 4, 2020, Dr. Baker filed a notice with the
district court indicating that the Supreme Court had de-
nied certiorari in his Oklahoma case, which he asserted
“remove[d] any bar to raising issues from” the Oklahoma
case in the current Virginia case. SAppx. 39. The notice
also informed the court that he planned to file another law-
suit against the USPTO. SAppx. 39. Dr. Baker did so on
November 12, 2020, filing a second lawsuit in the Eastern
District of Virginia alleging almost identical claims against
the USPTO regarding his two remaining patent applica-
tions. See Baker v. Raimondo, No. 1:20-cv-1367,
2021 WL
1381560, at *1 (E.D. Va. Mar. 30, 2021); see also Appeal
No. 21-2116 SAppx. 16 (stating this case is a “[r]efiling” of
the Oklahoma case).
The Government moved to dismiss Dr. Baker’s com-
plaints in both cases for lack of subject matter jurisdiction.
Because both lawsuits presented “the same allegations and
rest[ed] on the same issues” as the Oklahoma lawsuit, the
district court determined that the doctrine of collateral es-
toppel precluded Dr. Baker from relitigating his failure to
exhaust his administrative remedies. SAppx. 1–2; Appeal
No. 21-2116 SAppx. 1–4. Because it determined it did not
have subject matter jurisdiction in either case, the district
court granted the Government’s motions to dismiss.
SAppx. 2; Appeal No. 21-2116 SAppx. 4.
Dr. Baker appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(1).
DISCUSSION
We review a district court’s dismissal of a complaint for
lack of subject matter jurisdiction under the law of the re-
gional circuit, here the Fourth Circuit. Toxgon Corp.
v. BNFL, Inc.,
312 F.3d 1379, 1380 (Fed. Cir. 2002). Under
Fourth Circuit law, we review a district court’s dismissal
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6 BAKER v. RAIMONDO
for lack of subject matter jurisdiction de novo. Taylor
v. Kellogg Brown & Root Servs., Inc.,
658 F.3d 402, 408
(4th Cir. 2011). For the reasons below, we affirm the dis-
trict court in both cases.
On appeal, Dr. Baker argues the district court (1) “un-
justly applied” collateral estoppel, Appellant’s Br. 3 1, and
(2) erred in failing to address his reliance on various other
sources of law, including his Bivens 4 claim and several pro-
visions of the criminal code, id. at 2. We take each argu-
ment in turn.
I
We begin with Dr. Baker’s argument that the district
court inappropriately applied the doctrine of collateral es-
toppel to the two cases at issue. Dr. Baker asserts that by
applying collateral estoppel, the district court “put[] its
own convenience above the public damages of government
corruption.” Id. at 1.
A
Because the application of general collateral estoppel
principles “is not a matter within the exclusive jurisdiction
of this court, we must apply the law of the circuit in which
the district court here sits, i.e., the Fourth Circuit.” Phar-
macia & Upjohn Co. v. Mylan Pharms., Inc.,
170 F.3d 1373,
1381 n.4 (Fed. Cir. 1999). We note that the Fourth Circuit
has, in some circumstances, declined to apply collateral es-
toppel where the judgment in a prior case is supported by
3 Citations to “Appellant’s Br.” refer to brief submit-
ted by Dr. Baker in Appeal No. 21-1961. Because the con-
tents of the briefs submitted by Dr. Baker in both appeals
overlap significantly, we cite only to his brief in Appeal
No. 21-1961.
4 Bivens v. Six Unknown Named Agents of Fed. Bu-
reau of Narcotics,
403 U.S. 388 (1971).
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BAKER v. RAIMONDO 7
independently sufficient alternative holdings. See, e.g., In
re Microsoft Corp. Antitrust Litig.,
355 F.3d 322, 328
(4th Cir. 2004). As the Fourth Circuit has explained,
“where the court in the prior suit has determined two is-
sues, either of which could independently support the re-
sult, then neither determination is considered essential to
the judgment. Thus, collateral estoppel will not obtain as
to either determination.”
Id. (quoting Ritter v. Mount St.
Mary’s Coll.,
814 F.2d 986, 993 (4th Cir. 1987)); see also
Intell. Ventures I LLC v. Cap. One Fin. Corp.,
937 F.3d
1359, 1372–76 (Fed. Cir. 2019) (discussing Fourth Circuit
law on this issue).
In this case, the Oklahoma court determined that it
lacked subject matter jurisdiction for two reasons—both
because Dr. Baker did not exhaust his administrative rem-
edies before the USPTO and because a patent applicant
may only appeal final decisions of the Patent Trial and Ap-
peal Board to the Eastern District of Virginia or the Fed-
eral Circuit. Baker,
2019 WL 5395449, at *2 (“Plaintiff’s
claims are subject to dismissal for failure to exhaust ad-
ministrative remedies and for being filed in a court without
jurisdiction over his claims.”). In other words, the Okla-
homa court “determined two issues, either of which could
independently support the result” of dismissal, Microsoft,
355 F.3d at 328, and thus Fourth Circuit law indicates that
collateral estoppel might not apply to either issue.
B
Setting aside collateral estoppel, and without resolving
that issue, we nonetheless affirm the district court’s dis-
missal of both cases because it properly determined that it
did not have jurisdiction. Specifically, because Dr. Baker
did not exhaust his administrative remedies at the USPTO
before filing suit, the district court did not have subject
matter jurisdiction over his claims.
A patent applicant who remains dissatisfied with the
final decision of the Patent Trial and Appeal Board has two
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8 BAKER v. RAIMONDO
primary options to appeal. He may appeal directly to the
Federal Circuit.
35 U.S.C. § 141. Alternatively, he may
sue the USPTO Director in the Eastern District of Virginia.
35 U.S.C. § 145. To pursue either option, however, an ap-
pellant must have received a “final decision” from the Pa-
tent Trial and Appeal Board; that is, he must exhaust his
administrative remedies before the USPTO. See § 141 (re-
quiring a “final decision” from “an appeal to the Patent
Trial and Appeal Board”); § 145 (requiring a decision from
an appeal to the Patent Trial and Appeal Board); see also
Pregis Corp. v. Kappos,
700 F.3d 1348, 1358 (Fed. Cir.
2012) (“The Patent Act expressly provides an intricate
scheme for administrative and judicial review of [US]PTO
patentability determinations[.]”). When a statute requires
that an appellant exhaust his administrative remedies, a
district court cannot consider his case until those remedies
are exhausted. See, e.g., McCarthy v. Madigan,
503 U.S.
140, 144–45 (1992). In other words, without a final deci-
sion from the Patent Trial and Appeal Board, courts are
not allowed to consider claims regarding the USPTO’s pa-
tentability determinations.
In this case, Dr. Baker filed both Virginia lawsuits be-
fore pursuing an administrative appeal to the Patent Trial
and Appeal Board. As a result, the Patent Trial and Appeal
Board has not issued a “final decision.” And without a final
agency decision, the Eastern District of Virginia does not
have subject matter jurisdiction to consider Dr. Baker’s
claims. See Panos v. Dir. of the U.S. Pat. and Trademark
Off., No. 3:14-cv-698,
2015 WL 5786826, at *7–9 (E.D. Va.
Sept. 30, 2015) (finding no subject matter jurisdiction
where appellant had filed an appeal brief to the Patent
Trial and Appeal Board but ultimately abandoned that ap-
peal, because there was no “final decision by the Board” for
the court to review). The district court therefore does not
have subject matter jurisdiction over Dr. Baker’s claims.
For these reasons, we affirm the district court’s dismissal
of Dr. Baker’s cases for lack of subject matter jurisdiction.
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BAKER v. RAIMONDO 9
II
We turn next to Dr. Baker’s argument that the district
court erred by not addressing the various other sources of
law he raises in his complaint. Appellant’s Br. 2. Specifi-
cally, Dr. Baker argues the district court should have con-
sidered his claims brought under: (1) Bivens; (2)
18 U.S.C.
§§ 242, 1001, and 1519; and (3)
5 C.F.R. § 2635.101.
As an initial matter, we note that Dr. Baker did not re-
spond to the Government’s arguments regarding these is-
sues before the district court. In its motions to dismiss, the
Government argued at length that Dr. Baker could not sus-
tain a claim under these various sources of law. See
SAppx. 46–56; see also SAppx. 44 (pursuant to the court’s
local rules, Government providing explicit notice that “fail-
ure to respond” to the Government’s motion “may result in
the relief requested in this motion . . . being granted”).
Dr. Baker submitted a response to the Government’s mo-
tion but did not address the Government’s arguments re-
garding these sources of law. See SAppx. 57–61.
Accordingly, Dr. Baker waived his arguments regarding
these issues. See, e.g., Fresenius USA, Inc. v. Baxter Int’l,
Inc.,
582 F.3d 1288, 1296 (Fed. Cir. 2009) (“If a party fails
to raise an argument before the trial court, or presents only
a skeletal or undeveloped argument to the trial court, we
may deem that argument waived on appeal[.]”). Neverthe-
less, considering the leniency granted to pro se plaintiffs
like Dr. Baker, we will consider the merits of his argument
that the district court erred by not considering these
sources of law. See McZeal v. Sprint Nextel Corp.,
501 F.3d
1354, 1356 (Fed. Cir. 2007) (we may grant pro se litigants
“leeway on procedural matters”). We consider each argu-
ment in turn.
First, Dr. Baker argues the district court erred by not
addressing his Bivens claim. Appellant’s Br. 2. “In Bivens,
the Supreme Court held that a party may, under certain
circumstances, bring an action for violations of
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10 BAKER v. RAIMONDO
constitutional rights against Government officials in their
individual capacities.” Brown v. United States,
105 F.3d
621, 624 (Fed. Cir. 1997). Here, Dr. Baker sued the Secre-
tary of Commerce and the USPTO Director in their official
capacities. See SAppx. 1 (noting the complaint was filed
against defendants in their official capacities); see also
SAppx. 6–8, 29–32, 34 (including in list of defendants the
“Secretary of Commerce” and “Director of USPTO,” among
other official titles). A Bivens action, however, may not be
brought against a federal employee in his official capacity.
Doe v. Chao,
306 F.3d 170, 184 (4th Cir. 2002) (“[A] Bivens
action does not lie against either agencies or officials in
their official capacity.”). Accordingly, the court did not err
in declining to consider Dr. Baker’s Bivens claim.
Second, Dr. Baker argues the district court should have
discussed his assertion of three criminal statutes—
18 U.S.C. §§ 242, 1001, and 1519. Appellant’s Br. 2. None
of these criminal statutes, however, provides Dr. Baker a
cause of action. In other words, Dr. Baker may not file a
civil case for the alleged violation of a criminal statute. See,
e.g., Cort v. Ash,
422 U.S. 66, 79–80 (1975) (a “bare criminal
statute,” with no indication of civil enforcement, does not
give rise to a private cause of action). We thus find no error
in the district court declining to consider these claims.
Finally, Dr. Baker argues the trial court erred by not
considering
5 C.F.R. § 2635.101. Appellant’s Br. 2. This
federal regulation outlines the ethical obligations that
must be upheld by employees of the Executive Branch. The
same subpart of those regulations, however, specifically
states that it does not create a private cause of action, i.e.,
Dr. Baker cannot rely on it to pursue his case against the
Government. See § 2635.106(c) (“A violation of this part . . .
does not create any right or benefit . . . enforceable at law
by any person against the United States, its agencies, its
officers or employees, or any other person.”). Thus, the
court did not err in declining to consider this claim.
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BAKER v. RAIMONDO 11
Accordingly, we determine that the Eastern District of
Virginia did not err in declining to consider these various
sources of law presented by Dr. Baker. We have considered
Dr. Baker’s remaining arguments and find them unpersua-
sive.
CONCLUSION
For the above reasons, we affirm the judgments of the
Eastern District of Virginia dismissing Dr. Baker’s com-
plaints for lack of subject matter jurisdiction.
AFFIRMED
COSTS
No costs.
