Po Kee Wong v. United States Solicitor General

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
PO KEE WONG, )
)
Plaintiff, )
) Civil Action No. 11-1372 (EGS)
v. )
)
UNITED STATES SOLICITOR )
GENERAL, )
)
Defendant. )
)
MEMORANDUM OPINION
This case is before the Court on defendant United States
Solicitor General’s motion to dismiss. Plaintiff, proceeding
pro se, filed his Complaint on July 28, 2011 requesting that the
Court grant a number of unclear “orders” related to a wide
variety of subject matter, including state retirement benefits,
rejected patent applications, patent infringement, and tax
refunds. Defendant filed a motion to dismiss on December 12,
2011, arguing, among other things, that the Complaint should be
dismissed under Federal Rule of Civil Procedure 12(b)(1) and
12(b)(6), and that certain claims were barred by the doctrine of
res judicata. Plaintiff’s response to the motion to dismiss,
filed December 28, 2011, attached numerous emails sent by
plaintiff to the President of the United States, members of
Congress, and hundreds of other people, but shed no further
light on plaintiff’s claims nor did it address most of the
government’s arguments. Upon consideration of the motion, the
response and reply thereto, the entire record 1, the applicable
law, and for the reasons set forth below, the defendant’s motion
to dismiss the action is GRANTED.
I. BACKGROUND
Plaintiff is no stranger to the courts, having filed
numerous claims in various state and federal courts. See Wong
v. Boston Ret. Bd., 861 N.E.2d 420, 421, 448 Mass. 1012, 1012-
1013 (Mass. 2007); Wong v. United States, 342 Fed. App’x 623,
624-25 (Fed. Cir. 2009); In re Wong, 80 Fed. App’x 107, 108
(Fed. Cir. 2003); In re Wong, 188 Fed. App’x 981 (Fed. Cir.
2006). 2 Plaintiff has apparently not been successful in these
attempts, and now appears to have collected a list of the relief
sought in his failed lawsuits, in addition to other requests,
into an omnibus claim for “orders” from this Court. Construing
1
In addition to the Complaint and his opposition to the motion to dismiss,
plaintiff has also filed several supplemental documents in this action. See
Notice to the Court (Docket No. 3), Notice to the Court (Docket No. 4),
Notice of Supplemental Authority (Docket No. 12), Notice to the Court (Docket
No. 13), Notice to the Court about NBPTS document (Docket No. 14), Notice to
the Court about an Open Challenge (Docket No. 15). The documents include
copies of letters and emails purportedly sent by Mr. Wong to various people
(including the President of the United States, Secretary of State Hillary
Clinton, Caroline Kennedy, members of Congress, federal judges, and clerks of
court), miscellaneous documents that are apparently related to some or all of
Mr. Wong’s alleged patents, and documents relating to his former teaching
position. The Court has considered these voluminous documents in rendering
its decision and has determined that their content is either repetitive of
the issues already raised by plaintiff or irrelevant to the disposition of
the case.
2
The Court takes judicial notice of these prior proceedings and their
subsequent appeals. See Covad Commc’ns Co. v. Bell Atlantic Corp., 407 F.3d
1220, 1222 (D.C. Cir. 2005) (permitting judicial notice of public records of
other proceedings).
2
the Complaint liberally, the Court understands plaintiff’s
claims to fall into three general categories.
1. Plaintiff’s Retirement Benefits Claim
Plaintiff asks that the Court “issue an ORDER to the
Retirement Board of the City of Boston, State Massachusetts to
allow Po Kee Wong to buy back nine years and five months for my
full retirement of my educational services allowable by the
Boton [sic] Retirement Law.” (Compl. ¶ 1). Plaintiff has
already fully litigated this claim. See Wong v. Boston Ret.
Bd., 861 N.E.2d 420, 421, 448 Mass. 1012, 1012-1013 (Mass.
2007). In that decision, plaintiff unsuccessfully challenged
the Boston Retirement Board’s denial of certain retirement
credits through a series of administrative law appeals and
through the Massachusetts state court system. Id. Plaintiff
failed to file a timely appeal in state court, then moved for
permission to docket his appeal late, which was denied. Id. He
then appealed to a single justice of the Massachusetts Supreme
Judicial Court, who affirmed the denial. Id. Unsatisfied with
that decision, Plaintiff appealed to a panel of justices on the
Massachusetts Supreme Judicial Court, which affirmed the denial
once again. Id. Plaintiff then filed a petition with the
United States Supreme Court for writ of certiorari, which was
denied, followed by a petition for rehearing, which was also
denied. Wong v. Boston Ret. Bd., 552 U.S. 975 (2007) (denying
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petition for writ of certiorari to the Supreme Judicial Court of
Massachusetts); Wong v. Boston Ret. Bd., 552 U.S. 1084 (2007)
(denying petition for rehearing). In his Complaint, plaintiff
also seeks to have this Court review the Supreme Court’s denial
of certiorari in the Retirement Board matter. (Compl. ¶ 7).
2. Plaintiff’s Patent Claims
Plaintiff makes reference to several patent and patent
application serial numbers, and appears to allege that the
patents have been infringed upon or that certain patent
applications were wrongly denied. He asks the Court:
To issue an ORDER to the Solicitor General and to the
USPTO to complete the issuance of the U.S. Patent
Application Serial Number 08/980,657; (Compl. ¶ 2)
To issue an ORDER to the United States Government for
a claim of NASA Case Number I-218 for actions for
patent and copyright infringement of U.S. Patent
Number 5,084,232 and 5,848,377; (Compl. ¶ 3)
To issue an ORDER to the United States Government to
enforce the U.S. Patent Law by issuing ORDERS to
whoever has been the infringers must pay their
royalties and/or license fee to the patent owner Dr.
Po Kee Wong or Systems Research Company. ( This claim
appears related to U.S. Patents 5,084,232;5,848,377
and 6,430,516 and U.S. Patent application Serial
numbers 08/980,657 and 07/147,217). (Compl. ¶ 8)
Plaintiff provides no further information regarding any of
these patents and patent applications, nor does he explain the
basis of any alleged infringement, why he believes any
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applications should have been granted, or why the defendant
Solicitor General is liable for any harm caused.
a. The ‘232, ‘377 and ‘516 Patents
With respect to United States Patent Numbers 5,084,232 (the
‘232 Patent), 5,848,377 (the ‘377 Patent), and 6,430,516 (the
‘516 Patent), plaintiff has already had his day in court. See
Wong v. United States, 342 Fed. App’x 623, 624-25 (Fed. Cir.
2009). In that case, plaintiff brought claims against the United
States for infringement of the ‘232, ‘377 and ‘516 patents. Id.Despite allowing plaintiff the opportunity to state his claim
more fully, the Court of Federal Claims eventually dismissed the
infringement claims for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6). The United States Court of
Appeals for the Federal Circuit affirmed, finding that plaintiff
had “failed to produce any facts upon which he could sustain his
allegation that the government had infringed on his patents.”
Id. Plaintiff petitioned the Supreme Court for a writ of
certiorari, and was denied, followed by a petition for
rehearing, which was also denied. See Wong v. U.S., 131 S.Ct.
126 (2010) (denying petition for writ of certiorari); Wong v.
U.S., 131 S.Ct. 1041 (2011) (denying motion for leave to file a
petition for rehearing).
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It appears that Plaintiff also seeks to have this Court
review the Supreme Court’s denial of certiorari on his patent
infringement claim. Plaintiff begins his Complaint by stating
that “The Honorable Judge Reggie B. Walton is invited to review
the Supreme Court case 09-10968....” (Compl. at first
unnumbered paragraph). The Supreme Court docket number cited is
plaintiff’s appeal of the Federal Circuit’s decision that
plaintiff’s patents had not been infringed. See Wong v. U.S.,
131 S.Ct. 126 (2010).
b. The ‘657 Patent Application
Plaintiff seeks an order compelling the “issuance” of
United States Patent Application number 08/980,657 (the ‘657
application). This is at least the fourth time plaintiff has
asked a federal court to review the denial of the ‘657
application. Plaintiff initially appealed a 2002 decision of
the United States Patent and Trademark Office, Board of Patent
Appeals and Interferences (the “Patent Board”), which rejected
his patent application on the merits of the patent. In re Wong,
80 Fed. App’x 107, 108 (Fed. Cir. 2003). The Federal Circuit,
upholding the Patent Board’s decision, found that plaintiff
failed to demonstrate that the Patent Board committed reversible
error in rejecting plaintiff’s patent application. Id. at 109.
Plaintiff’s motion for rehearing and rehearing en banc were
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denied. See id. The Patent and Trademark Office subsequently
deemed the patent abandoned, as plaintiff had failed to continue
prosecuting the patent, and sent plaintiff a notice of
abandonment. In re Wong, 188 Fed. App’x 981 (Fed. Cir. 2006).
In 2005, plaintiff filed a petition to revive the abandoned
application, which the Commissioner of Patents (“Commissioner”)
denied on July 19, 2005. Id. Plaintiff then filed a notice of
appeal, seeking review by the Federal Circuit of the
Commissioner’s denial, and the Director of the Patent and
Trademark office moved to dismiss. Id. The Federal Circuit
granted the motion, finding that it did not have jurisdiction
over the Commissioner’s denial of the petition to revive the
abandoned application. Id. (stating that, under the
Administrative Procedure Act, 5 U.S.C. §§ 701 et seq.,
jurisdiction over the Commissioner’s denial lay in the district
courts). The plaintiff then appealed that decision to the
Supreme Court. In re Wong, 552 U.S. 807, (2007) (denying
petition for writ of mandamus); In re Wong, 552 U.S. 1056 (2007)
(denying petition for rehearing).
Apparently unhappy with the decision of the Federal
Circuit, but unwilling to file his claim in a federal district
court as required by the Administrative Procedure Act, plaintiff
sought review of his claim regarding the ‘657 application when
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he brought his other claims for alleged patent infringement in
the Court of Federal Claims. See Wong v. United States, 342
Fed. App’x 623 (Fed. Cir. 2009). The court rejected his claim
relating to the ‘657 application for lack of jurisdiction. Id.
at 625. Plaintiff appealed that decision to the Supreme Court.
Wong v. United States, 131 S.Ct. 126 (2010) (denying petition
for writ of certiorari); Wong v. United States, 131 S.Ct. 1041(2011).
Two years later, plaintiff has filed a Complaint in this
Court, and seeks to compel the “issuance” of the ‘657 patent
application. (Compl. ¶ 2). Plaintiff also asks the court to
issue an order “for unfair ruling by the Supreme Court”
regarding his denial of certiorari on the ‘657 application.
(Compl. ¶ 7).
c. The ‘217 Patent Application
Plaintiff makes a passing reference to United States Patent
Application number 07/147,217 in his Complaint. (Compl. ¶ 8).
He has not alleged whether the application was his, whether it
was granted or denied, or any other facts relating to this
application.
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3. Remaining Claims
Plaintiff’s remaining claims are as follows:
To issue an ORDER to the United States Government for
Federal contract bid protests as can be evidenced from
the FOIA reports from various agencies of the United
States Government. (Compl. ¶ 4).
To issue an ORDER to the United States Government for
tax refunds for unusual charges in the past for owing
IRS corporate taxes. (Compl. ¶ 5).
To issue an ORDER to the United States government for
unfair contract like the one under the order of U.S.
Department of Transportation Systems Center's order
TS-15054 report in Cambridge, Massachusetts on May 15,
1978. (Compl. ¶ 6).
To issue an ORDER to Airleaf-Jones Harvest and Chosen
Few Books companies to deliver 50 copies of Po Kee
Wong's Book entitled [A collection of Truth Articles]
in reference to the page JPSR -000242 to page JPSR-
000294 in the Appendix of the Joint Preliminary Status
Report filed at the U.S. Court of Federal Claim.
(Compl. ¶ 9).
Nothing in the record sheds any further light on the
factual or legal basis of these claims.
II. STANDARD OF REVIEW
The pleadings of pro se parties, such as the plaintiff in
the instant action, are “to be liberally construed, and a pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citations
and quotation marks omitted). Nevertheless, “although a court
9
will read a pro se plaintiff’s complaint liberally,” a pro se
complaint, no less than any other complaint, “must present a
claim on which the Court can grant relief.” Chandler v. Roche,
215 F. Supp. 2d 166, 168 (D.D.C. 2002) (citing Crisafi v.
Holland, 655 F.2d 1305, 1308 (D.C. Cir. 1981)). Furthermore, a
pro se litigant is not relieved of the burden of pleading an
adequate jurisdictional basis for his claims. Atwal v. Lawrence
Livermore Nat. Sec. LLC, 786 F. Supp. 2d 323, 325 (D.D.C. 2011).
A. Rule 12(b)(6)
1. Failure to State a Claim
Rule 8(a) requires that “[a] pleading that states a claim
for relief must contain . . . a short and plain statement of the
claim showing that the pleader is entitled to relief. . . .”
Fed. R. Civ. P. 8(a)(2). The Supreme Court instructs that,
“[t]o survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal,
129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. at 555). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to draw a
reasonable inference that the defendant is liable for the
misconduct alleged.” Id., 129 S.Ct. at 1949 (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. at 556).
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2. Res Judicata
The doctrine of res judicata is designed to “conserve
judicial resources, avoid inconsistent results, engender respect
for judgments of predictable and certain effect, and to prevent
serial forum-shopping and piecemeal litigation.” Hardison v.
Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981). Res judicata
prevents the Court from hearing “repetitious suits involving the
same cause of action once a court of competent jurisdiction has
entered a final judgment on the merits.” United States v.
Tohono O’Odham Nation, 131 S.Ct 1723, 1730 (2011) (citation and
internal quotation marks omitted). The doctrine bars a
subsequent lawsuit if there has been prior litigation (1)
involving the same claims or cause of action, (2) between the
same parties or their privies, and (3) there has been a final,
valid judgment on the merits, (4) by a court of competent
jurisdiction. Small v. United States, 471 F.3d 186, 192 (D.C.
Cir. 2006) (citations omitted). Res judicata also prevents the
relitigation of claims that were actually litigated in a prior
suit, as well as those that could have been litigated but were
not. See Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir. 2002). Thus,
it relieves parties of the cost and vexation of multiple
lawsuits, conserves judicial resources, prevents inconsistent
decisions, and encourages reliance on adjudication. Montana v.
United States, 440 U.S. 147, 153-54 (1979). A claim dismissed
11
on grounds of res judicata is dismissed under Federal Rule of
Civil Procedure 12(b)(6). See Johnson v. United States, --- F.
Supp. 2d ----, 2012 WL 251925 at *1, fn. 1 (D.D.C. Jan. 27,
2012) (citing Smalls v. U.S., 471 F.3d 186, 189 (D.C. Cir.
2006)).
B. Rule 12(b)(1)
On a motion to dismiss for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1), the plaintiff bears the burden of establishing subject
matter jurisdiction. See Lujan v. Defenders of Wildlife, 504
U.S. 555, 561 (1992); see Fed. R. Civ. P. 8(a)(1). Federal
courts are courts of limited jurisdiction and the law presumes
that “a cause of action lies outside this limited jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994) (citations omitted).
III. ANALYSIS
A. Plaintiff’s Claim for an Order Granting Retirement Benefits
(Compl. ¶ 1) is Dismissed on Grounds of Res Judicata
Plaintiff’s claim to retirement benefits has been decided
by the Supreme Judicial Court of Massachusetts, undoubtedly a
court of competent jurisdiction, and plaintiff appears to have
exhausted every possible avenue for appeal. See Wong v. Boston
Ret. Bd., 861 N.E.2d 420, 421, 448 Mass. 1012, 1012-1013 (Mass.
2007), cert. denied, Wong v. Boston Ret. Bd., 552 U.S. 975, 128
12
S.Ct. 440 (2007), reh’g denied, Wong v. Boston Ret. Bd., 552
U.S. 1084, 128 S.Ct. 826 (2007). Although plaintiff ostensibly
brings this action against the Solicitor General, he is asking
that the Court order the Boston Retirement Board, the defendant
in the initial action, to pay his claimed retirement benefits.
Hence, the elements of the same claim, same parties, and final
judgment on the merits by a court of competent jurisdiction are
present to warrant dismissal of this claim on the ground of res
judicata.
B. Plaintiff’s Claims for Orders Regarding Infringement of the
‘232, ‘337, and ‘516 Patents (Compl. ¶ 3, 8) are Dismissed
on Grounds of Res Judicata
Plaintiff’s request that the Court issue orders to the
“United States Government” regarding infringement of the ‘232,
‘337, and ‘516 patents is also barred by the doctrine of res
judicata. Plaintiff has litigated this claim in the Court of
Federal Claims and appealed that court’s decision to the United
States Court of Appeals for the Federal Circuit. Wong v. United
States, 342 Fed. App’x 623 (Fed. Cir. 2009), cert. denied, Wong
v. U.S., 131 S.Ct. 126 (2010), reh’g denied, Wong v. U.S., 131
S.Ct. 1041 (2011). The Federal Circuit affirmed the dismissal
of plaintiff’s case, finding that he had “failed to produce any
facts upon which he could sustain his allegation that the
government had infringed on his patents.” Id. at 624-45. This
dismissal qualifies as a “decision on the merits” for purposes
13
of res judicata. See Jenson v. Huerta, --- F. Supp. 2d ----,
2011 WL 614552, *3 (D.D.C. 2011). Plaintiff had his opportunity
to fully litigate the claims regarding the ‘232, ‘337 and ‘516
patents against the United States and received a decision on the
merits from a court of competent jurisdiction. Accordingly,
this claim must be dismissed.
C. Plaintiff’s Claims for Orders Regarding Patent Applications
‘657 and ‘217 (Compl. ¶ 2, 8) are Dismissed for Failure to
State a Claim
Plaintiff’s claim regarding the ‘657 application must be
dismissed for failure to state a claim. Although this is
plaintiff’s fourth attempt to bring this claim before a court,
plaintiff’s Complaint is still utterly devoid of any facts or
circumstances surrounding the Commissioner’s denial of the ‘657
application. Plaintiff merely seeks to compel the Court to
“issue an ORDER to the Solicitor General and the USPTO to
complete the issuance of the U.S. Patent Application Serial
Number 08/980,657.” (Compl. ¶ 2).
Liberally construing the Complaint, and assuming that
plaintiff is indeed seeking an appeal of the denial to revive an
abandoned patent application, the Court finds that plaintiff’s
claim cannot withstand a motion to dismiss. Plaintiff does not
explain the basis for his belief that his abandoned patent
application should have been revived. Plaintiff has not alleged
14
whether he complied with the requirements of 37 C.F.R. § 1.137,
which sets forth the process for reviving an abandoned patent
application, nor has plaintiff alleged whether any such decision
by the Commissioner is a final agency decision eligible for
review by a district court. See 5 U.S.C. § 704. Plaintiff has
not alleged how the defendant, the Solicitor General, is liable
for the decision of the Commissioner, nor has plaintiff provided
the Court with an administrative record, if any exists, of the
denial of the motion to revive the patent application. In
short, plaintiff has provided the Court with no facts that could
sustain his claim for overturning the Commissioner’s denial of
plaintiff’s petition to revive his abandoned patent application.
Plaintiff has wholly failed to provide a “short and plain
statement of the claim showing that [plaintiff] is entitled to
relief” and his claim regarding the ‘657 application should
therefore be dismissed. See Fed. R. Civ. P. 8(a)(2), 12(b)(6).
For the same reasons, plaintiff’s claim regarding the ‘217
application also fails. Other than plaintiff’s passing
reference to the application number and his request that the
Court issue an order regarding that application, plaintiff has
set forth no factual or legal basis for his claim regarding the
‘217 application. Accordingly, it must also be dismissed for
15
failure to state a claim. See Fed. R. Civ. P. 8(a)(2),
12(b)(6).
D. Plaintiff’s Request that the Court Review Certain Supreme
Court Orders (Compl. ¶ 7 and first unnumbered paragraph) is
Dismissed for Lack of Jurisdiction
Plaintiff has asked the Court to review the Supreme Court’s
denial of certiorari for his retirement benefits claim (Docket
No. 07-209), his patent infringement claim (Docket No. 09-
10968), and his attempt to revive patent application number ‘657
(Docket No. 06-1705). Plaintiff has identified no
jurisdictional basis under which this Court would have authority
to review the Supreme Court’s denial of certiorari; indeed,
there is none. Accordingly, plaintiff’s claims ordering the
Court to review Supreme Court decisions are therefore dismissed
under Federal Rule of Civil Procedure 12(b)(1) for lack of
jurisdiction.
E. Plaintiff’s Remaining Claims that this Court Issue “Orders”
(Compl. ¶ 4, 5, 6, 9) are Dismissed for Failure to State a
Claim
Plaintiff’s remaining claims are indecipherable. They
include a request for an order regarding “federal contract bid
protests as can be evidenced from the FOIA reports from various
agencies of the United States Government” (Compl. ¶ 4); an order
“for tax refunds for unusual charges in the part for owing IRS
corporate taxes” (Compl. ¶ 5); an order “for unfair contract
16
like the one under the order of U.S. Department of
Transportation Systems Center’s order TS-15054 report in
Cambridge, Massachusetts on May 16, 1978” (Compl. ¶ 6); and an
order “to Airleaf-Jones Harvest and Chosen Few Books companies
to deliver 50 copies of Po Kee Wong’s Book entitled [A
collection of Truth Articles] in reference to the page JPSR-
000242 and to page JPSR-000294 in the Appendix of the Joint
Preliminary Status Report filed at the U.S. Court of Federal
Claim” (Compl. ¶ 9). The plaintiff provides no further factual
information in support of these claims.
Having reviewed these remaining four claims in the light
most favorable to plaintiff, the Court concludes that plaintiff
has utterly failed to provide the Court with a “short and plain
statement of the claim showing that the pleader is entitled to
relief, in order to give the defendant fair notice of what the
. . . claim is and the grounds upon which it rests.” Twombly,
550 U.S. at 167 (internal citations omitted). Accordingly, to
the extent that paragraphs 4, 5, 6, and 9 of the Complaint
purport to state claims, those claims are dismissed.
17
IV. CONCLUSION
For the foregoing reasons, the Court must GRANT defendant’s
motion to dismiss plaintiff’s Complaint. Having found
sufficient grounds to grant defendant’s motion, the Court does
not reach defendant’s arguments regarding service of process.
Accordingly, defendant’s motion to dismiss the Complaint is
GRANTED. An appropriate Order accompanies this Memorandum
Opinion.
Signed: Emmet G. Sullivan
United States District Judge
March 15, 2012
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