Sitkovetskiy v. Young
Filing
22
ORDER granting 10 Motion to Dismiss. Signed by Judge Vanessa L. Bryant on 02/01/2016. (Thomas, R.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LEV N. SITKOVESTSKIY,
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:
:
:
:
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Plaintiff,
v.
RACHEL T. YOUNG
Defendant.
CIVIL CASE NUMBER:
3:15-cv-1073 (VLB)
February 1, 2016
MEMORANDUM OF DECISION
Plaintiff Lev Sitkovestskiy, pro se, brought a state court complaint alleging
that Defendant Rachel Young, a patent examiner for the United States Patent and
Trademark
Office
(―USPTO‖),
improperly
denied
his
patent
application.
Defendant removed here relying on the removal statute governing actions against
federal officers.
Defendant now moves to dismiss for lack of subject-matter
jurisdiction. The first issue is whether Plaintiff has shown that his claims fall
within an exception to sovereign immunity. He has not. The second issue is
whether he could allege facts showing such an exception. He cannot. The Court
therefore GRANTS the motion to dismiss and DISMISSES the complaint.
Factual and Procedural Background
Plaintiff‘s complaint alleges that he filed an application to patent ―a novelty
device with approved possibilities of diagnosis, prevention and treatment [of]
diseases.‖ Id. at 2 (.pdf pagination). ECF No. 1-2. It further alleges that the
Defendant, a patent examiner, denied his claim, but the denial was improper for
the five following reasons: (1) ―[f]alsifications of the Title and Claims from the
refereed
document‖;
(2) ―[f]alsification
of
sentences
from
the
refereed
documents‖; (3) [f]alsification of the technique data of refereed documents‖; (4)
―[f]alsification of normal logical meaning‖; and (5) ―[f]alsification by ignoring
Patent Law Court Decisions, and data of the opposed documents.‖ Id. at 2–3. As
best the Court can decipher, all of these purported errors relate to Plaintiff‘s
disagreement with Defendant‘s discretionary application of patent law, in
particular Defendant‘s rulings that the proposed claims were obvious.
See
generally id. Plaintiff seeks monetary damages and perhaps prosecution under
18 U.S.C. § 1001. Id. at 2, 21.
In July 2015, Defendant removed the action pursuant to 28 U.S.C. § 1442,
the statute governing the removal of actions filed against federal officers. ECF
No. 1. Defendant moves to dismiss for lack of subject-matter jurisdiction on two
bases. ECF No. 10-1. First, judicial review of the denial of a patent application
cannot be sought unless first appealed to the Patent Trial and Appeal Board and
then only in the United States Court of Appeals for the Federal Circuit or the
Eastern District of Virginia.
Id. at 4–6.
Second, evening assuming that the
complaint raises a claim pursuant to the Federal Tort Claims Act (―FTCA‖),
Plaintiff did not first lodge a complaint with the USPTO. Id. at 6–9. In support,
Defendant attaches, inter alia, the November 2013 patent denial, a letter indicating
that no valid appeal was filed, and a declaration attesting to the fact that no FTCA
complaint had been filed with the USPTO. ECF Nos. 10-2; 10-9; 10-12. Plaintiff‘s
opposition reiterates his complaint‘s allegations. ECF Nos. 16; 16-1; 16-2.
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LEGAL DISCUSSION
Issues concerning a federal employee‘s sovereign immunity are properly
addressed in a motion to dismiss for lack of subject-matter jurisdiction. See FDIC
v. Meyer, 510 U.S. 471, 475 (1994) (―Sovereign immunity is jurisdictional in
nature.‖). The plaintiff bears the burden of establishing that his claims fall within
an exception to sovereign immunity. Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000). When ruling on a Rule 12(b)(1) motion, a court may consider
evidence outside the pleadings. Dukes v. New York City Employees’ Ret. Sys., &
Bd. of Trustees, 581 F. App‘x 81, 82 (2d Cir. 2014) (citing Makarova, 201 F.3d at
113). The Court may weigh that evidence as long as the jurisdictional facts do
not overlap with factual questions going to the merits.
Alliance for Envtl.
Renewal, Inc., 436 F.3d at 88 & n.6.
―It is an axiom of our jurisprudence. The government is not liable to suit
unless it consents thereto, and its liability in suit cannot be extended beyond the
plain language of the statute authorizing it.‖ Price v. United States, 174 U.S. 373,
375–76 (1899). This principle applies to damages as well as equitable relief. See
Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 688–89 (1949)
(holding that a suit for injunctive relief against a federal officer, acting in his
official capacity and within his statutory and constitutional authority, was barred
by sovereign immunity). It also extends to federal officers acting in their official
capacities. See Dotson v. Griesa, 398 F.3d 156, 177 (2d Cir. 2005). Courts apply
the following two-prong test to determine if a federal officer was acting in her
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official capacity: ―first, whether there is a reasonable connection between the act
and the agent‘s duties and responsibilities and, second, whether the act is not
manifestly or palpably beyond the agent‘s authority.‖ Yalkut v. Gemignani, 873
F.2d 31, 34 (2d Cir. 1989) (internal quotation marks and alterations omitted).
A patent examiner is a federal officer. Defendant brings official-capacity
claims because the allegations pertain solely to Defendant‘s role in examining
Plaintiff‘s patent application. As a federal officer sued for official-capacity acts,
sovereign immunity shields her from suit unless Plaintiff can demonstrate that
his claims fall within an exception to sovereign immunity. None of Plaintiff‘s
numerous filings identify an exception. Plaintiff cites 18 U.S.C. § 1001, but private
litigants may not bring suit pursuant to criminal statutes. See Luckett v. Bure,
290 F.3d 493, 497 (2d Cir. 2002) (―We affirm the district court‘s dismissal of
Luckett‘s claims of sabotage, forgery, and perjury, which are crimes and
therefore do not give rise to civil causes of action.‖).
The Court, however, affords ―special solicitude‖ towards pro se litigants
and must interpret the complaint ―to raise the strongest claims that it suggests.‖
Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (internal quotation marks and
alterations omitted). ―A pro se complaint should not be dismissed without the
[c]ourt‘s granting leave to amend at least once when a liberal reading of the
complaint gives any indication that a valid claim might be stated.‖ Grullon v. City
of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) (internal quotation marks and
alterations omitted).
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The sum-and-substance of the complaint is Plaintiff‘s disagreement over
the denial of his patent application. Congress has waived sovereign immunity
with respect to judicial actions brought against the USPTO and the USPTO
Director, not a patent examiner. See Fleming v. Coward, 534 F. App‘x 947, 950
(Fed. Cir. 2013) (observing that only three exceptions to sovereign immunity exist
with respect to the appeal of patent decisions and that those exceptions apply
only to the USPTO and its Director). Thus, even liberally construed, Plaintiff‘s
filings do not indicate a basis to sue Defendant. See 14 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 3655 (4th ed.) (―[T]he United
States does not become a party to a suit merely because the Attorney General or
the United States Attorney is representing a federal employee who has been sued
individually.‖).
It would also be futile to permit Plaintiff to amend his complaint to name
either the USPTO or the USPTO Director.
―[T]he prerequisite to requesting
judicial review under all three statutory provisions is the exhaustion of remedies
before the PTO by procuring a ‗decision from the Board‘ or ‗final agency action.‘‖
Fleming, 534 F. App‘x at 950 (Fed. Cir. 2013). Plaintiff has not obtained a decision
from the Board or a final agency action. ECF No. 10-9 (Letter) at 2 (―[A] Notice of
Appeal with accompanying fee has not been submitted and the Appeal Brief fee
has not been submitted.‖) Amendment, therefore, would only result in dismissal
for failure to exhaust his administrative remedies.
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Defendant also argues that Plaintiff‘s claims plausibly implicate the FTCA
because the allegations liberally construed could suggest a cause of action under
common law. ECF No. 10-1 (Mem.) at 6–9. Defendant nonetheless argues that
this Court would lack jurisdiction over those claims because Plaintiff failed to
exhaust his administrative remedies.
Id.
Defendant is correct that the Court
would lack jurisdiction over any FTCA claim, but for a slightly different reason.
As with an action challenging the denial of a patent, a FTCA claim cannot be
brought against a patent examiner. See Barnhill v. Terrell, 616 F. App‘x 23, 25 (2d
Cir. 2015) (ruling, in the context of FTCA claims, that ―sovereign immunity bars
any common law claims against the individual defendants in their official
capacities‖). It would also be futile to permit Plaintiff to amend his complaint to
name the United States. The FTCA requires a claimant to ―have first presented
the claim to the appropriate Federal agency‖ within two years. 28 U.S.C. §§ 2401,
2675. Plaintiff has not made any such claim in the two years following the denial
of his patent application in November 2013 or alleged any facts suggesting that
equitable tolling would apply. ECF No. 10-12 (Damelin Decl.) at ¶ 5. Amendment,
therefore, would only result in dismissal for failure to exhaust.
The Court also notes one other potential basis for liability: Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
See Svatovic v. U.S. Patent & Trademark Office, 617 F. App‘x 100, 101 (2d Cir.
2015) (―[A]n assertion of intentional denials of a patent or delays in the PTO
review process based on a party‘s pro se status might therefore give rise to a
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Bivens action for a violation of due process.‖).
The complaint‘s allegations,
however, do not remotely suggest the denial of a constitutional right. Plaintiff
does not allege any facts tending to show that his application was denied
intentionally, that the denial was based on some immutable characteristic, that he
suffered any unusual delay, or that he was not afforded the opportunity to be
heard. The complaint contains conclusory language such as ―falsification,‖ but
those allegations are devoid of factual detail. The factual allegations demonstrate
only his disagreement with Defendant‘s neutral review of his application. Plaintiff
may disagree with Defendant‘s rulings—he may even be right—but the
Constitution does not prohibit patent errors.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant‘s motion to
dismiss for lack of subject-matter jurisdiction, and the case is DISMISSED.
IT IS SO ORDERED.
/s/
_
Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut, February 1, 2016.
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