Etienne v. United States ( 2022 )

In the United States Court of Federal Claims
No. 22-269C
Filed: June 21, 2022
NOT FOR PUBLICATION
YVON ETIENNE, et al., pro se,
Plaintiffs,
v.
UNITED STATES,
Defendant.
MEMORANDUM OPINION AND ORDER
HERTLING, Judge
The plaintiff, Yvon Etienne, acting pro se, filed this action alleging that the defendant,
the United States, acting through the U.S. Patent and Trademark Office (“USPTO”), infringed on
his property rights under both 28 U.S.C. § 1498 and the fifth amendment of the U.S. Constitution
by publishing his patent application without sufficient notice to him.1 The plaintiff further
claims that the publication of his patent application was negligent, caused him emotional
distress, and was motivated by racial animus. Finally, the plaintiff’s complaint purports to
present two inquiries: the first regarding why poorer countries have lower COVID-19 death rates
than the United States; and the second regarding whether the United States government should
compensate him for any remaining portions of a “property right” when it has taken some but not
all of that “property right.”
The defendant moved to dismiss the plaintiff’s claims for lack of subject-matter
jurisdiction under Rule 12(b)(1) of the Rules of the Court of Federal Claims (“RCFC”) and for
failure to state a claim upon which relief can be granted under RCFC 12(b)(6). The plaintiff
filed a response to the defendant’s motion.
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The complaint also includes claims on behalf of a second plaintiff, E&Y Educational
Services Inc. (“E&Y”). In his response to the defendant’s motion to dismiss, the plaintiff
conceded that E&Y “has nothing to do with the plaintiff’s complaint.” (Pl.’s Resp. at 5.) The
plaintiff requested that the Court dismiss any claim related to E&Y. (Id.) Because the Court
grants that request and dismisses the claims on behalf of E&Y, this memorandum opinion
grammatically uses the singular “plaintiff.”
The plaintiff’s claim arising under the takings clause of the fifth amendment fails to
identify a cognizable property interest that the defendant has taken. Accordingly, dismissal is
appropriate under RCFC 12(b)(6). The plaintiff’s other claims fall outside of the Court’s limited
subject-matter jurisdiction as established by the Tucker Act, and dismissal of these claims is
appropriate under RCFC 12(b)(1). The defendant’s motion to dismiss is granted.
I. BACKGROUND
A. Facts2
The plaintiff alleges that he invented an alternative medicinal cure to COVID-19; he calls
his remedy ye-COVIDICIN. (Compl. at A-6.) The plaintiff applied to the USPTO for a patent
for ye-COVIDICIN on April 24, 2020, describing his invention as a “botanical and traditional
medicine” for treatment against COVID-19. U.S. Patent Application No. 16/857,479,
Publication No. 2021-0401773 (published Dec. 30, 2021). (See also Compl. Ex. at 7.3)
By law, patent applications are published 18 months after the application is filed.
35 U.S.C. § 122(b)(1)(A). Although the plaintiff alleges that the USPTO failed to notify him
prior to the statutorily required publication of his application, the plaintiff acknowledges that he
did not file an Emergency Petition to prevent publication. (Compl. at A-6.) The USPTO
provided the plaintiff with a “Notice of Publication of Application.” (Compl. Ex. at 9.) The
notice provided December 30, 2021, as the publication date. (Id.) The application was
published on that date.
The plaintiff’s patent has not been issued.4
B. Procedural History
On March 8, 2022, the plaintiff filed his complaint. The plaintiff rests his claims on the
fact that the USPTO failed to provide him notice that his patent application was being published.
(Compl. at A-6 (basing claim on the government’s failure to inform him before publishing his
discovery).) The plaintiff alleges that the lack of notice rises to the level of tortious patent
infringement under 28 U.S.C. § 1498, contributory negligence under 28 U.S.C. § 1346(b), and a
taking under the fifth amendment. He also alleges that the publication of his patent application
2
In considering the defendant’s motion to dismiss, the facts as alleged in the plaintiff’s
complaint are assumed to be true. This summary of the facts does not constitute findings of fact
but is simply a recitation of the plaintiff’s allegations.
3
Citations to the plaintiff’s exhibits refer to the digital pagination as generated by the
electronic filing system.
4
The plaintiff was mailed a non-final rejection of his patent application on April 14, 2022.
U.S. Patent Application No. 16/857,479.
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caused him emotional distress and was motivated by racial animus. He seeks compensation for
financial loss and requests a federal grant to provide tutoring for low-income children.
The plaintiff also asks the Court why poorer countries have lower COVID-19 death rates
than the United States and whether the United States government ought to compensate for
untaken portions of a “property right” when they have taken some portions already. (Compl. Ex.
at 3-4.)
The defendant has filed a motion to dismiss under RCFC 12(b)(1) and 12(b)(6), and the
plaintiff has responded. The Court has determined that oral argument is not necessary to resolve
the motion.
II. STANDARDS OF REVIEW
A. Subject-Matter Jurisdiction
The plaintiff has the burden of establishing jurisdiction by a preponderance of the
evidence. Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). If
the Court finds that it lacks subject-matter jurisdiction over the plaintiff’s claim, RCFC 12(h)(3)
requires the Court to dismiss the claim.
To determine subject-matter jurisdiction under RCFC 12(b)(1), a “court must 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., 659 F.3d at 1163. When a plaintiff’s
jurisdictional facts are challenged, only those factual allegations that the government does not
controvert are accepted as true. Shoshone Indian Tribe of Wind River Rsrv. v. United States, 672
F.3d 1021, 1030 (Fed. Cir. 2012). A court is not “‘restricted to the face of the pleadings’” in
resolving disputed jurisdictional facts. Id. (quoting Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d
1573, 1584 (Fed. Cir. 1993), cert. denied, 512 U.S. 1235 (1994)). Instead, in resolving whether
they have subject-matter jurisdiction, courts may review evidence outside the pleadings. Id.B. Failure to State a Claim
Under RCFC 12(b)(6), dismissal “is appropriate when the facts asserted by the claimant
do not entitle him to a legal remedy.” Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir.
2002). A court must both accept as true a complaint’s well-pleaded factual allegations, Ashcroft
v. Iqbal, 556 U.S. 662, 679 (2009), and draw all reasonable inferences in favor of the non-
moving party, Sommers Oil Co. v. United States, 241 F.3d 1375, 1378 (Fed. Cir. 2001). To
avoid dismissal under RCFC 12(b)(6), a complaint must allege facts “plausibly suggesting (not
merely consistent with)” a showing that the plaintiff is entitled to the relief sought. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 557 (2007). “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556).
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C. Pro Se Litigation
The plaintiff is proceeding pro se. As a result, his pleadings are entitled to a more liberal
construction than the Court would give to pleadings prepared by a lawyer. See Haines v. Kerner,
404 U.S. 519, 520-21 (1972). Giving a pro se litigant’s pleadings a liberal interpretation and
construction does not divest a pro se plaintiff of demonstrating that the allegations of the
complaint satisfy the jurisdictional requirements that limit the types of claims the Court of
Federal Claims may entertain. See Spengler v. United States, 688 F. App’x 917, 920 (Fed. Cir.
2017); Kelley v. Sec’y, U.S. Dep’t of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987).
In construing a pro se litigant’s pleadings liberally, a court does not become an advocate
for that litigant. Rather, the court ensures that the pro se litigant’s pleadings are construed in a
manner that gives the litigant every opportunity to make out a claim for relief.
III. DISCUSSION
The defendant has asserted two grounds for dismissal: (1) lack of subject-matter
jurisdiction; and (2) failure to state a claim upon which relief has been granted. The plaintiff has
also requested voluntary dismissal of aspects of his complaint. The Court will address each
ground for dismissal in turn.
A. Subject-Matter Jurisdiction
The jurisdiction of the Court of Federal Claims “depends wholly upon the extent to which
the United States has waived its sovereign immunity to suit . . . .” United States v. King,
395 U.S. 1, 4 (1969). The waiver of sovereign immunity “cannot be implied but must be
unequivocally expressed.” Id.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).
The Supreme Court has held that the “Tucker Act, of course, is itself only a jurisdictional
statute; it does not create any substantive right enforceable against the United States for money
damages.” United States v. Testan, 424 U.S. 392, 398 (1976). Rather, the substantive right must
come from a separate, money-mandating source of substantive law. See Fisher v. United States,
402 F.3d 1167, 1172 (Fed. Cir. 2005).
Several of the plaintiff’s claims are beyond this court’s jurisdiction under the Tucker Act.
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1. Tort Claims
All the plaintiff’s claims arise out of the fact that the government allegedly did not
provide him notice before publishing his patent application. The plaintiff raises three separate
tort claims: (1) tortious patent infringement under 28 U.S.C. § 1498; (2) contributory negligence
under the Federal Tort Claims Act; and (3) emotional distress caused by the government’s failure
to provide notice of publication of his patent application. (Compl. at A-5; Pl.’s Resp. at 1.)
The Court’s patent jurisdiction is limited to claims for infringement of patents that have
been issued. See 28 U.S.C. § 1498(a) (“[w]henever an invention . . . covered by a patent . . . is
used or manufactured by or for the United States . . . the owner’s remedy shall be by action
against the United States” (emphasis added)). The plaintiff does not have an issued patent, so
§ 1498 does not provide jurisdiction over the plaintiff’s claim alleging patent infringement. See
U.S. Patent Application No. 16/857,479, Publication No. 2021-0401773 (published Dec. 30,
2021).
The Court also cannot consider the plaintiff’s claims of contributory negligence and
emotional distress because the jurisdiction of the Court of Federal Claims explicitly excludes
claims arising from an alleged tort. The Tucker Act limits the jurisdiction of the Court of
Federal Claims to “cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (emphasis added). The
Federal Circuit has also held that the Court of Federal Claims cannot hear claims arising under
the Federal Tort Claims Act. Shearin v. United States, 992 F.2d 1195, 1197 (Fed. Cir. 1993).
Because the Court lacks subject-matter jurisdiction over the plaintiff’s patent and tort
claims, the defendant’s motion to dismiss these claims under RCFC 12(b)(1) must be granted.
2. Questions Posed to the Court
The plaintiff’s complaint purports to present two questions for resolution: (1) why poorer
countries have a lower COVID-19 death rate than the United States; and (2) if the government
takes part of someone’s property, whether the government is required to compensate the
individual for the untaken part. These questions fall outside of the limited jurisdiction of this
Court.
A plaintiff’s claims must be founded on a source of law. The Tucker Act limits the
jurisdiction of this court to “any claim against the United States founded either upon the
Constitution, or any Act of Congress or any regulation of an executive department.” 28 U.S.C.
§ 1491(a)(1). The Court of Federal Claims has jurisdiction only to hear and redress claims
arising under a money-mandating source of substantive law. Fisher 402 F.3d at 1172. The
plaintiff’s questions do not raise a claim under the Constitution, an Act of Congress, or a
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regulation from an executive department, and they do not arise under a money-mandating source
of substantive law. Thus, this Court lacks jurisdiction over them.5
B. Failure to State a Claim
The plaintiff’s final claim alleges that the USPTO’s publishing of his patent application
without his consent rises to the level of a taking under the “Fifth Amendment Clause” and
requires “just compensation.” (Compl. at A-5.)
The Court of Federal Claims has jurisdiction over claims arising under the fifth
amendment’s takings clause. See Jan’s Helicopter Serv., Inc. v. F.A.A., 525 F.3d 1299, 1309
(Fed. Cir. 2008). The takings clause provides: “nor shall private property be taken for public
use, without just compensation.” Takings claims are evaluated using a two-step process. First, a
court determines whether the plaintiff possesses a valid property interest, or in other words, a
“stick in the bundle of property rights.” Karuk Tribe of Cal. v. Ammon, 209 F.3d 1366, 1374
(Fed. Cir. 2000). If a valid property interest exists, a court then moves to the second step of
evaluating whether the government action constituted a taking of that interest or “stick.” Id.The plaintiff’s takings claim fails at the first step. The plaintiff has not specified a
constitutionally cognizable property interest that the defendant has taken. When evaluating a
claim for a taking, the reviewing court must first define the property interest at stake. The
property interest must be defined with specificity and not at a generic level. See, e.g., American
Pelagic Fishing v. United States, 379 F.3d 1363, 1376 (Fed. Cir. 2004) (defining the property
right at issue narrowly as the use of a specific commercial fishing vessel to fish for Atlantic
mackerel and herring in the Exclusive Economic Zone); Acceptance Ins. Cos. v. United States,
583 F.3d 849, 857 (Fed. Cir. 2009) (defining the right at stake as the right to sell a particular
insurance portfolio to a particular buyer); Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2072
(2021) (focusing on a property owner’s right to exclude others from real property rather than
real-property rights more generally).
Although the defendant argues that the plaintiff’s patent application does not constitute
property, the plaintiff does not allege that his application has been taken. Rather, the plaintiff
alleges a right to exclude his patent application from publication. The Court therefore must
analyze whether the plaintiff’s right to keep ye-COVIDICIN unpublished is a constitutionally
cognizable property interest. In doing so, the Court must look to background principles of law.
American Pelagic Fishing 379 F.3d at 1376 (“We determine whether an asserted right is one of
5
The defendant also argues that plaintiff lacks standing for these claims. There exists no
injury in fact, causation, or redressability with respect to the questions raised by the plaintiff.
Steel Co. v. Citizens for a Better Env., 523 U.S. 83, 102 (1998). The defendant emphasizes that
courts should not be “called upon to decide abstract questions of wide public significance.”
Warth v. Seldin, 422 U.S. 490, 500 (1975). Regardless of the other jurisdictional defects, the
Court agrees that the plaintiff has not established standing to present to the Court of Federal
Claims the questions he seeks to have answered.
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the rights in the bundle of sticks of property rights . . . by looking to ‘existing rules or
understandings’ and ‘background principles’ derived from an independent source such as state,
federal, or common law.”).
When restrictions on property exist prior to the plaintiff’s ownership of the property,
those restrictions are inherent in the plaintiff’s property. For example, in Acceptance Insurance,
an insurance company relinquished its right to transfer freely certain insurance policies by
participating in a federal program; the company had no property interest in selling an insurance
policy portfolio when restrictions that could block that sale existed prior to the company’s
ownership of the portfolio. 583 F.3d at 857-58. Similarly, in McCutchen v. United States, a
preexisting law limiting title to “machineguns” inhered in bump-stock owners’ right to possess
or transfer bump-stocks, devices interpreted to be “machineguns.” 14 F.4th 1355, 1365-66 (Fed.
Cir. 2021).
In this case, aside from exceptions not relevant here, patent applications are published by
law 18 months after they are filed. 35 U.S.C. § 122(b)(1)(A). This law requiring publication of
patent applications after a specific period has elapsed inhered in the plaintiff’s application and
restricted the plaintiff’s right to have his patent application remain unpublished. Indeed,
applying for and gaining the exclusive rights to a patent is a necessary part of the quid pro quo of
disclosing the invention in exchange for a monopoly on that invention. Universal Oil Products
Co. v. Globe Oil & Refining Co., 322 U.S. 471, 484 (1944). The statutory stipulation that the
plaintiff’s application would be published therefore inhered in any property interest in his
invention. Thus, the plaintiff lacks a property interest in the right for his application to remain
unpublished. Because the plaintiff has not pleaded a cognizable property interest, he has not
raised a valid claim for a taking under the fifth amendment.
C. Voluntary Dismissal of E&Y’s Claims and Discrimination Claims
In its motion to dismiss, the defendant raised defects regarding E&Y Educational
Services as an additional plaintiff and the plaintiff’s allegations of racial animus. In response,
the plaintiff requested that the Court “dismiss any claim related to E&Y Educational Services
Inc. and any potential discrimination claim in the Plaintiff’s Complaint.” (Pl.’s Resp. at 1.)
Construing the plaintiff’s request as a motion for voluntary dismissal of those aspects of his
complaint, the Court grants the plaintiff’s motion.6
IV. CONCLUSION
The Court lacks subject-matter jurisdiction over each of the plaintiff’s claims except the
takings-clause claim. The plaintiff’s takings-clause claim fails to state a claim upon which relief
can be granted because his claim does not raise a cognizable property interest under the fifth
6
Even if the plaintiff had not requested dismissal of the claims on behalf of E&Y, the Court
would have had to dismiss them. The plaintiff is not a lawyer and is appearing pro se. Under
RCFC 83.1(a)(3), he is unable to represent a corporation or other entity.
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amendment. The defendant’s motion to dismiss is GRANTED. The plaintiff’s claims sounding
in tort and the questions he poses in the complaint are DISMISSED without prejudice. The
plaintiff’s takings claim is DISMISSED with prejudice.
The Clerk of Court is DIRECTED to enter judgement accordingly. No costs are
awarded.
It is so ORDERED.
s/ Richard A. Hertling
Richard A. Hertling
Judge
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