Case: 23-1376 Document: 20 Page: 1 Filed: 08/08/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GEORGE PIECZENIK,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2023-1376
______________________
Appeal from the United States Court of Federal Claims
in No. 1:22-cv-00111-LAS, Senior Judge Loren A. Smith.
______________________
Decided: August 8, 2023
______________________
GEORGE PIECZENIK, Stockton, NJ, pro se.
HAYLEY A. DUNN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for defendant-appellee. Also represented by
BRIAN M. BOYNTON, GARY LEE HAUSKEN.
______________________
Before PROST, CLEVENGER, and CHEN, Circuit Judges.
PER CURIAM.
Case: 23-1376 Document: 20 Page: 2 Filed: 08/08/2023
2 PIECZENIK v. US
Dr. George Pieczenik brought claims of infringement of
U.S. Patent No. 5,866,363 (“the ’363 patent”) against the
United States in the Court of Federal Claims. The Court
of Federal Claims dismissed Dr. Pieczenik’s complaint,
concluding that it lacked subject-matter jurisdiction over
the claims as pleaded. For the reasons outlined below, we
affirm.
BACKGROUND
Dr. Pieczenik is the owner and sole inventor of the ’363
patent, titled “method and means for sorting and identify-
ing biological information.” (capitalization normalized).
His complaint alleged, among other things, that “[b]egin-
ning at least as early as 1993, various components
of . . . the DOD, NIH and the NCI have entered into fund-
ing agreements, grants, clinical therapy, [and] licensing
agreements with various pharmaceutical [companies] and
individuals who have a history of using the technology and
products described in the ‘363’ [patent] for clinical and re-
search purposes including . . . development and distribu-
tion of monoclonal antibodies, phage display libraries,
recombinant antibodies, recombinant antigens and pep-
tides.” S.A. 1009. 1 It also alleged that the government had
“licensed [
U.S. Patent No. 7,041,441] to various pharma-
ceutical companies,” which amounted to “a direct taking of
the invention first described in [the ’363 patent].”
Id. The
complaint further attached several postings in the Federal
Register describing various patents and provisional appli-
cations as “owned by an agency of the U.S. Government
and . . . available for licensing.” J.A. 1011–13. It alleged
that the “work” in these postings “takes from” the ’363 pa-
tent.
Id.
1 S.A. refers to the supplemental appendix submit-
ted by the government.
Case: 23-1376 Document: 20 Page: 3 Filed: 08/08/2023
PIECZENIK v. US 3
In addition to mentioning the Takings Clause and al-
leging that certain actions described were takings, the com-
plaint also alleged that it was “an action under
28 U.S.C.
§ 1498(a) . . . for the unlicensed use, manufacture[,] and in-
fringement by or on behalf of the United States” of the ’363
patent. S.A. 1008.
The government moved to dismiss for lack of subject-
matter jurisdiction and failure to state a claim. The Court
of Federal Claims granted the motion on 12(b)(1) grounds
while noting that dismissal under 12(b)(6) may have also
been warranted because the complaint “alleges little more
than conclusory statements of liability.” S.A. 1005 n.1.
The court concluded that the complaint cited two jurisdic-
tional grounds, neither of which were supported: (1) the
Takings Clause; and (2)
28 U.S.C. § 1498(a). S.A. 1002 (cit-
ing complaint at ¶¶ 2, 4).
As for jurisdiction under the Tucker Act based on the
Takings Clause, the Court of Federal Claims determined
that “patent claims against the federal government, or its
contractors, must be pursued . . . exclusively under
28
U.S.C. § 1498.” S.A. 1003. Thus, the court concluded that
the Tucker Act and Takings Clause could not supply juris-
diction over Dr. Pieczenik’s claims.
With respect to jurisdiction under
28 U.S.C. § 1498(a),
the Court of Federal Claims concluded that the complaint
lacked sufficient factual allegations to establish the condi-
tions of the government’s waiver of sovereign immunity un-
der
28 U.S.C. § 1498(a). Specifically, after concluding that
Dr. Pieczenik’s claim rested only on a theory of use or man-
ufacture for the government—a conclusion that Dr. Piec-
zenik does not challenge—the Court of Federal Claims
determined that there were insufficient allegations either
of benefit to or authorization by the government.
S.A. 1004–05. The court therefore dismissed the com-
plaint.
Case: 23-1376 Document: 20 Page: 4 Filed: 08/08/2023
4 PIECZENIK v. US
Dr. Pieczenik timely appealed. We have jurisdiction
under
28 U.S.C. § 1295(a)(3).
DISCUSSION
We review the Court of Federal Claims’ grant of a mo-
tion to dismiss on jurisdictional grounds de novo. Estes
Exp. Lines v. United States,
739 F.3d 689, 692 (Fed. Cir.
2014). Because “[s]overeign immunity is jurisdictional in
nature,” F.D.I.C. v. Meyer,
510 U.S. 471, 475 (1994), pre-
requisites for the government’s waiver of immunity are
evaluated under 12(b)(1). A plaintiff “bears the burden of
showing that the United States waived immunity for his
suit in the Court of Federal Claims.” Booth v. United
States,
990 F.2d 617, 619 (Fed. Cir. 1993); see also Blueport
Co. v. United States,
533 F.3d 1374, 1381 (Fed. Cir. 2008).
We “accept as true all undisputed facts asserted in the
plaintiff’s complaint and draw all reasonable inferences in
favor of the plaintiff.” Trusted Integration, Inc. v. United
States,
659 F.3d 1159, 1163 (Fed. Cir. 2011). 2
The Court of Federal Claims correctly concluded that it
lacked Tucker Act jurisdiction over Dr. Pieczenik’s in-
fringement claims premised on the Takings Clause. As
this court has explained, “
28 U.S.C. § 1498 provides the
only avenue for a patent owner to bring an action against
the government for patent infringement.” Golden v. United
States,
955 F.3d 981, 987 (Fed. Cir. 2020). The Tucker Act
does not waive sovereign immunity for claims sounding in
tort and “a patent infringement action ‘is one sounding in
tort.’”
Id. (quoting Schillinger v. United States,
155 U.S.
163, 169 (1894)). Further, there is no support for Dr. Piec-
zenik’s suggestion that a contractual interest supports
2 Here, the government did not raise any factual dis-
putes about the complaint’s allegations in its 12(b)(1) mo-
tion to dismiss. Cf. Reynolds v. Army & Air Force Exch.
Serv.,
846 F.2d 746, 747 (Fed. Cir. 1988).
Case: 23-1376 Document: 20 Page: 5 Filed: 08/08/2023
PIECZENIK v. US 5
jurisdiction here. See Appellant’s Br. 7–8. The complaint
does not allege an agreement between Dr. Pieczenik and
any other party, so Tucker Act jurisdiction based on breach
of (or interference with) contractual rights is also inapt.
Next, we also agree that the complaint’s allegations do
not support jurisdiction under
28 U.S.C. § 1498(a). Section
1498(a) serves as a limited waiver of the government’s sov-
ereign immunity “[w]henever an invention described in
and covered by a patent of the United States is used or
manufactured by or for the United States without license
of the owner thereof or lawful right to use or manufacture
the same.”
28 U.S.C. § 1498(a). This waiver of immunity
is also forum specific, allowing only actions brought in the
Court of Federal Claims.
Id. Dr. Pieczenik’s complaint
was appropriately dismissed because it does not present a
nonconclusory allegation of use or manufacture of his in-
vention “for the United States” within the meaning of
§ 1498(a).
An accused use is “for the United States” where it is
(1) for the government’s benefit; and (2) authorized or con-
sented to by the government. Hughes Aircraft Co. v. United
States,
534 F.2d 889, 897–98 (Ct. Cl. 1976); see also
28
U.S.C. § 1498(a). A government contractor’s use is for the
government’s benefit when undertaken pursuant to a gov-
ernment contract that provides services the government
sought. Sevenson Env’t Servs., Inc. v. Shaw Env’t, Inc.,
477
F.3d 1361, 1366 (Fed. Cir. 2007). Even when a third party’s
use is pursuant to such a contract, it is still not “for the
United States” unless the government provided authoriza-
tion and consent specifically for the accused use.
Id. at
1367. Here, the complaint provides a conclusory allegation
that “[p]ursuant to cooperative agreement and grant docu-
ments and correspondence described below . . . [govern-
mental agencies] granted ‘authorization and consent’ to
various laboratories for all use and manufacture of the
technologies recited in the ’363 [p]atent in the performance
of the relevant grants and contracts.” S.A. 1008. The
Case: 23-1376 Document: 20 Page: 6 Filed: 08/08/2023
6 PIECZENIK v. US
complaint does not describe those agreements and grants.
Instead, the complaint generally alleges that “[t]he ’363
[i]nvention is used in research and clinical treatments” and
that the government has entered into agreements with en-
tities that “have a history of using the technology and prod-
ucts described in the” ’363 patent. S.A. 1009. These
allegations are plainly insufficient. See Crow Creek Sioux
Tribe v. United States,
900 F.3d 1350, 1354–55 (Fed. Cir.
2018) (holding that facial challenges to subject-matter ju-
risdiction are subject to the “plausibility” requirement and
that conclusory statements are not sufficient). Even as-
suming the government was a beneficiary of one of these
agreements, there are no factual allegations linking the ac-
cused use to the alleged agreements. In fact, there are no
factual allegations linking the accused use to any authori-
zation and consent by the government, whether pursuant
to these agreements or otherwise. 3 Since the complaint
does not contain sufficient factual allegations of an accused
use “for the United States,” the Court of Federal Claims
3 Because the complaint here does not provide any
nonconclusory allegation of authorization we need not ad-
dress the extent to which that requirement could blend
with the overall requirements of proving a claim under
§ 1498(a). Cf. Spruill v. MSPB,
978 F.2d 679, 686–88 (Fed.
Cir. 1992) (discussing confusing “the question of subject
matter jurisdiction . . . with the question of entitlement to
relief” where “the facts which establish jurisdiction are in-
tertwined with the facts which determine the merits of the
cause”). Further, since this motion to dismiss involved a
facial attack on the complaint, any procedural concerns re-
lated to early-stage factual attacks on intertwined merits
questions are inapplicable here. Cf. CNA v. United States,
535 F.3d 132, 143 (3d Cir. 2008) (discussing different cir-
cuits’ approaches to this concern).
Case: 23-1376 Document: 20 Page: 7 Filed: 08/08/2023
PIECZENIK v. US 7
correctly concluded that it did not have jurisdiction under
§ 1498(a). 4
CONCLUSION
We have considered Dr. Pieczenik’s remaining argu-
ments and find them unpersuasive. We affirm the Court
of Federal Claims’ dismissal for lack of jurisdiction.
AFFIRMED
COSTS
No costs.
4 We decline to reach Dr. Pieczenik’s cursory request
on appeal that he be “given an opportunity to file an
amended complaint, if that be necessary,” Appellant’s
Br. 12, because he did not move for leave to amend or file a
proposed amended complaint at the Court of Federal
Claims in the first instance. Cf. Refaei v. United States,
725 F. App’x 945, 951–52 (Fed. Cir. 2018).
