Aljindi v. United States

Case: 22-1117 Document: 25 Page: 1 Filed: 05/10/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
AHMAD ALJINDI,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2022-1117
______________________
Appeal from the United States Court of Federal Claims
in No. 1:21-cv-01295-SSS, Judge Stephen S. Schwartz.
______________________
Decided: May 10, 2022
______________________
AHMAD ALJINDI, Irvine, CA, pro se.
IGOR HELMAN, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, for defendant-appellee. Also represented by BRIAN M.
BOYNTON, ERIC P. BRUSKIN, PATRICIA M. MCCARTHY.
______________________
PER CURIAM.
Case: 22-1117 Document: 25 Page: 2 Filed: 05/10/2022
2 ALJINDI v. US
Dr. Ahmad Aljindi appeals the final decision of the U.S.
Court of Federal Claims dismissing his complaint for lack
of jurisdiction. For the reasons below, we affirm-in-part,
vacate-in-part, and remand.
BACKGROUND
On April 28, 2021, Dr. Aljindi filed a complaint pro se
at the Court of Federal Claims. Dr. Aljindi sought
$32.7 million in damages for employment discrimination in
addition to relief for “intellectual property and copyright[]
law[] violations, negligence, and tort.” SAppx. 9. 1 The
Government moved to dismiss Dr. Aljindi’s complaint for
lack of subject matter jurisdiction and failure to state a
claim.
The Court of Federal Claims agreed with the Govern-
ment and dismissed Dr. Aljindi’s complaint. See Aljindi
v. United States, No. 21-1295C, 2021 WL 4807205 (Fed. Cl.
Oct. 15, 2021); SAppx. 1–3. The court interpreted
Dr. Aljindi’s complaint as alleging three claims: (1) em-
ployment discrimination; (2) theft of his intellectual prop-
erty; 2 and (3) negligence and tort based on the conduct
described in his complaint for the first two claims.
SAppx. 1. Additionally, after reviewing Dr. Aljindi’s brief
in response to the Government’s motion to dismiss, the
court noted that Dr. Aljindi’s lawsuit was really focused on
his allegations of “judicial misconduct” in the U.S. District
1 Citations to “SAppx.” refer to the Supplemental
Appendix attached to the Government’s brief.
2 Dr. Aljindi’s complaint does not mention patent in-
fringement. As for a claim under federal copyright law,
Dr. Aljindi’s complaint states that he seeks “$32.7 [m]illion
for [e]mployment [d]iscrimination [and m]aximum mone-
tary [c]onstitutional [r]elief for the intellectual property
and copyright[] law[] violations, negligence, and tort.”
SAppx. 9. There is no other mention of copyright law.
Case: 22-1117 Document: 25 Page: 3 Filed: 05/10/2022
ALJINDI v. US 3
Court for the Central District of California and the U.S.
Court of Appeals for the Ninth Circuit. SAppx. 2; see also
SAppx. 8 (requesting the court “take formal notice of the
ongoing judicial corruption, abuse, and torture in addition
to [the Government’s] abuse and torture”). The court thus
considered those claims as well.
Regarding the first claim, employment discrimination,
the trial court explained that the Court of Federal Claims
does not have jurisdiction over federal employment dis-
crimination cases, i.e., it does not have the power to decide
those cases. Rather, as the court explained, only federal
district courts have jurisdiction over those claims.
SAppx. 3 (quoting Taylor v. United States, 310 F. App’x
390, 393 (Fed. Cir. 2009) (“Because Title VII vests jurisdic-
tion over discrimination claims exclusively in the district
court, the Court of Federal Claims cannot exercise jurisdic-
tion over those claims.”)).
The trial court explained that Dr. Aljindi’s second and
third claims—intellectual property theft (not including
claims of patent infringement or copyright infringement)
and negligence and tort, respectively—are tort claims, a
type of claim over which the court also lacks jurisdiction.
SAppx. 2–3 (citing 28 U.S.C. § 1491(a)(1) (“The United
States Court of Federal Claims shall have jurisdiction to
render judgment upon any claim against the United States
. . . for . . . damages in cases not sounding in tort.” (empha-
sis added))). The court also construed Dr. Aljindi’s intellec-
tual property theft claim as a Fifth Amendment takings
claim but determined that Dr. Aljindi had not provided suf-
ficient facts in his complaint to support such a claim. Spe-
cifically, the court determined that Dr. Aljindi failed to
specify in his complaint “what the property consisted of,
how it was taken, and what the [G]overnment did with it.”
SAppx. 3.
Finally, regarding Dr. Aljindi’s judicial misconduct al-
legations, the court explained that it “lacks authority to
Case: 22-1117 Document: 25 Page: 4 Filed: 05/10/2022
4 ALJINDI v. US
review allegations of misconduct by judges on another
court.” SAppx. 2 (citing 28 U.S.C. §§ 351, 363). It also con-
sidered Dr. Aljindi’s allegations that he had been denied
relief in the Central District of California and Ninth Cir-
cuit. Citing our prior decision holding that the Court of
Federal Claims “does not have jurisdiction to review the
decisions of district courts . . . relating to proceedings be-
fore those courts,” Joshua v. United States, 17 F.3d 378,
380 (Fed. Cir. 1994), the court explained that it likewise
does not “have the power [i.e., jurisdiction] to review deci-
sions” of either of these courts. SAppx. 2. And, in consid-
ering Dr. Aljindi’s allegations that the judicial misconduct
involved criminal conduct or torts, the court explained that
it lacks “jurisdiction over criminal matters,” SAppx. 2–3
(quoting Jones v. United States, 440 F. App’x 916, 918 (Fed.
Cir. 2011)), as well as claims sounding in tort.
Dr. Aljindi appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(3).
DISCUSSION
On appeal, Dr. Aljindi continues to seek $32.7 million
for employment discrimination, as well as constitutional
relief for the alleged intellectual property and copyright
law violations, negligence, and tort. Appellant’s Br. 3. 3
The Court of Federal Claims dismissed these for lack of ju-
risdiction or, in the alternative, for failure to state a claim.
We review the Court of Federal Claims’ dismissal for lack
of jurisdiction de novo, i.e., without deference to the trial
court. Creative Mgmt. Servs., LLC v. United States,
989 F.3d 955, 961 (Fed. Cir. 2021). We also review dismis-
sal for failure to state a claim de novo. Id. And while we
construe pro se filings like Dr. Aljindi’s liberally, that does
3 Because Dr. Aljindi’s opening brief on appeal in-
cludes numerous attachments, we use the pagination pro-
vided in the header of his brief.
Case: 22-1117 Document: 25 Page: 5 Filed: 05/10/2022
ALJINDI v. US 5
not alleviate Dr. Aljindi’s burden to establish jurisdiction.
Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995).
As the trial court correctly explained, its jurisdiction “is
limited to specific types of claims against the federal gov-
ernment, most commonly claims for money as provided by
the Tucker Act.” SAppx. 1 (citing 28 U.S.C. § 1491(a)(1)).
Specifically, the Tucker Act provides the Court of Federal
Claims with “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.”
§ 1491(a)(1).
Here, the Court of Federal Claims properly determined
that it lacks jurisdiction over Dr. Aljindi’s employment dis-
crimination, tort (including negligence and intellectual
property theft), and judicial misconduct claims. Regarding
his employment discrimination claim, we have previously
explained that only the district courts—which do not in-
clude the Court of Federal Claims—have jurisdiction over
employment discrimination claims. See Taylor,
310 F. App’x at 393 (“Title VII vests jurisdiction over dis-
crimination claims exclusively in the district court, [and]
the Court of Federal Claims cannot exercise jurisdiction
over those claims.”). We therefore affirm the trial court’s
determination that it lacks jurisdiction to review
Dr. Aljindi’s employment discrimination claim.
Regarding Dr. Aljindi’s tort claims, including his negli-
gence and intellectual property theft claims, the Tucker
Act specifically states that the Court of Federal Claims
only has jurisdiction over claims against the United States
in cases “not sounding in tort.” § 1491(a)(1); see Brown
v. United States, 105 F.3d 621, 623 (Fed. Cir. 1997) (“The
Court of Federal Claims is a court of limited jurisdiction.
It lacks jurisdiction over tort actions against the United
Case: 22-1117 Document: 25 Page: 6 Filed: 05/10/2022
6 ALJINDI v. US
States.”). As with employment discrimination claims, only
the district courts have jurisdiction over tort claims against
the United States. See Awad v. United States, 301 F.3d
1367, 1372 (Fed. Cir. 2002) (explaining that the “district
courts have jurisdiction in suits against the United States
for” tort claims under the Federal Tort Claims Act); see also
28 U.S.C. § 1346(b)(1). We therefore affirm the trial court’s
determination that it lacks jurisdiction to review
Dr. Aljindi’s tort claims, including negligence and intellec-
tual property theft.
In its motion to dismiss for failure to state a claim, the
Government explained that Dr. Aljindi’s complaint could
be liberally construed as alleging “either a takings claim; a
claim of patent or copyright infringement; or a trade se-
crets claim” over which the Court of Federal Claims would
have jurisdiction. Appellant’s Br. 40 (reproducing Govern-
ment’s motion to dismiss at the Court of Federal Claims).
The Government argued that Dr. Aljindi’s complaint did
not provide the minimum required factual allegations in
his complaint to support these claims.
The trial court agreed regarding Dr. Aljindi’s Fifth
Amendment takings claim, determining that he did not
provide the minimum required factual allegations in his
complaint to support this claim. See SAppx. 8. Dr. Aljindi
argues on appeal, as he did in his complaint, that the De-
partment of Defense “has stolen illegally and without giv-
ing him credit” his intellectual property related to
information security, artificial intelligence, and legacy in-
formation systems, thus “invok[ing] the Fifth Amend-
ment.” Appellant’s Br. 9. While we must accept all “non-
conclusory allegations of fact” in Dr. Aljindi’s complaint as
true, Samish Indian Nation v. United States, 419 F.3d
1355, 1364 (Fed. Cir. 2005), here, Dr. Aljindi’s one-sen-
tence factual allegation regarding his intellectual property
theft is too conclusory to support a Fifth Amendment tak-
ings claim. We agree with the trial court that Dr. Aljindi’s
“allegations are not facially plausible without factual
Case: 22-1117 Document: 25 Page: 7 Filed: 05/10/2022
ALJINDI v. US 7
allegations about what the property consisted of, how it
was taken, and what the government did with it.”
SAppx. 3. 4
We note, however, that Dr. Aljindi mentioned “copy-
rights law[] violations” in the relief section of his complaint.
SAppx. 9. As the Government stated in its trial brief, and
we agree, this can be liberally construed as a copyright in-
fringement claim over which the Court of Federal Claims
would have jurisdiction. See 28 U.S.C. § 1498(b) (“[W]hen-
ever the copyright in any work protected under the copy-
right laws of the United States shall be infringed by the
United States, . . . the exclusive action which may be
brought for such infringement shall be an action by the cop-
yright owner against the United States in the Court of Fed-
eral Claims[.]”). Because the trial court has jurisdiction
over this claim, we vacate-in-part the court’s dismissal. We
remand for the court to consider the Government’s position
that Dr. Aljindi’s complaint fails to state a claim for copy-
right infringement, that is, that he has failed to identify
sufficient facts in his complaint supporting this claim.
Next, we consider Dr. Aljindi’s claims of judicial mis-
conduct, which the Court of Federal Claims dismissed for
lack of jurisdiction. As the trial court correctly explained,
it does not have the authority to review allegations of mis-
conduct by judges from a different court (e.g., the Central
4 We note that even if Dr. Aljindi’s complaint alleged
additional facts, the Court of Federal Claims would lack ju-
risdiction to decide his Fifth Amendment takings claim
based on his continued assertion that the Government stole
his intellectual property “without his permission.” Appel-
lant’s Br. 9. As we explained in Shelden v. United States,
the Court of Federal Claims “lacks jurisdiction over takings
claims in which the petitioner asserts the subject taking
was not authorized.” 742 F. App’x 496, 501 (Fed. Cir.
2018).
Case: 22-1117 Document: 25 Page: 8 Filed: 05/10/2022
8 ALJINDI v. US
District of California) or a different circuit (e.g., the Ninth
Circuit). SAppx. 2; see also Rules for Judicial-Conduct and
Judicial-Disability Proceedings 7(a)(1) 5 (“Where to Initiate
Complaint”: “a complaint against a judge of a United States
court of appeals, a United States district court, a United
States bankruptcy court, or a United States magistrate
judge must be filed with the circuit clerk in the jurisdiction
in which the subject judge holds office”).
Finally, in his brief on appeal, Dr. Aljindi also alleges
that “his unique case involves” retaliation. Appellant’s
Br. 4. He provides numerous allegations concerning retal-
iation by various federal agencies (as well as the Govern-
ment’s attorneys) in his reply brief. See, e.g., Appellant’s
Reply Br. 6–10. Dr. Aljindi did not identify retaliation as
one of his causes of action in his complaint. “[E]ven with
the leniency afforded to pro se litigants, issues not raised
before the [Court of Federal Claims] are waived on appeal.”
Mone v. United States, 766 F. App’x 979, 986 (Fed. Cir.
2019). Dr. Aljindi’s claims of retaliation are therefore
waived because he failed to raise them at the trial court.
CONCLUSION
For these reasons, we affirm-in-part and vacate-in-part
the decision of the Court of Federal Claims. 6 On remand,
5 https://www.uscourts.gov/sites/default/files/judi-
cial_conduct_and_disability_rules_effective_march_12_2
019.pdf.
6 On January 10, 2022, Dr. Aljindi filed a motion to
expedite his appeal. ECF No. 14. We denied that motion
on February 1, 2022, informing Dr. Aljindi that he “may
self-expedite his appeal by filing his reply brief early,” ECF
No. 16. Dr. Aljindi filed a second motion to expedite his
appeal on Mach 21, 2022. ECF No. 23. We deny this sec-
ond motion to expedite as moot because this opinion and
Case: 22-1117 Document: 25 Page: 9 Filed: 05/10/2022
ALJINDI v. US 9
the court should consider whether Dr. Aljindi’s complaint
contains the minimum required factual allegations to sup-
port a claim of copyright infringement.
AFFIRMED-IN-PART, VACATED-IN-PART, AND
REMANDED
COSTS
No costs.
accompanying judgment resolve the merits of Dr. Aljindi’s
appeal.