CLARK v. USA

Filing 106

UNREPORTED MEMORANDUM OPINION and ORDER granting 64 Motion to Dismiss pursuant to Rule 12(b)(1) and (6); denying plaintiff's three motions for sanctions, and denying, as moot, any other pending motions. The Clerk is directed to enter judgment. No costs shall be awarded. Signed by Judge Victor J. Wolski. (dls) Copy to parties.

ORIOINAI
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No. 11-10C
(Filed JuIy 28,2014)
NOT FOR PUBLICATION
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FILED
,

JU1 282014

U.S. COURT OF
FEDERAL CLAIMS

JAMES HEDMAN CLARK,

Plaintifl

THE UNITED STATES,
Defendant.
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MEMORANDUM OPINION AND ORDER
Pending before the Court is defendant's motion to dismiss plaintiffs amended
complaint. For the reasons discussed below, the motion is GRANTED'

I.

BACKGROUND

Plaintift James Hedman Clark, filed this lawsuit pro se on January 5,2011'
See Compl. In response to plaintiffs original complaint, the government filed a
motion to dismiss and plaintiff subsequently requested leave to file an amended
complaint --- which was granted by the court. Mister clark then filed his amended
complaint, a document consisting of approximat ely 628 handwritten pages and
2,255 numbered paragraphs.l The government responded with a motion to dismiss
plaintiffs amended complaint in its entirety ("Def.'s Mot'")'

I

The Clerk's Office received on the same day nine documents submitted by
plaintiff, titled as follows: (1) Plaintiffs First Amended Complaint; (2) Amended
Table of Exhibits Incorporated by Reference in Plaintiffs Amended complaint; (3)
Attachment Filed under SeaI Incorporating Statements by Reference in Plaintiffs
First Amended Complaint; (4) Motion for Leave to Stay Judgment Regarding
Plaintiff s Patent Infringement Cause of Action; (5) Memorandum to Court; (6)
Verifred Derivative Action; (?) Plaintiffs Rule 23 Motion for a Defendant Class
Action certifrcation order; (8) Motion seeking Leave of court for Plaintiff to File
Supportive Memorandum for Class Certification in Excess of 20 Pages; and (9)

The first 228 pages of plaintiffs amended complaint contain lengthy
descriptions of the asserted jurisdictional bases for plaintiffs claims, facts spanning
several decades, and various exhibits submitted by plaintiff. See Am. Compl. at 1228D. Among other things, this portion of the amended complaint covers topics
such as plaintiffs education, medical, and employment history, the surveillance of
plaintiff by various government agencies, and the development of the purported
invention which underlies the bulk ofplaintiffs allegations. See id. Plaintiffs
invention, which is entitled the Out of Area (OOA) program, is a student behavror
modification program designed for use in schools. See id.. ill 189-96. In the
remainder of his amended complaint, plaintiff alleges twenty-eight causes of action,
many of which contain multiple counts. See id. at 231-628.

Plaintiff s invention, the OOA program, is based on the premise that
"[d]isruptive and disrespectful student behaviors almost always occur when
students are not in their assigned/proper area" --- that is, when they are "out of
area." Am. Compl U 192. The OOA program includes at least four documents
created by plaintiff--- a student quiz, a referral form, a parental information notice
Ietter, and a hall pass. Id. n 238. On April 22,2005, Mr. Clark obtained a federal
copyright registration for the OOA program. See id. l1l 315, 421, 1070; PI.'s Claim
of Copyright(s) and Assignment Ownership, Ex. V, ECF No. 8. A copy of the
document registered by plaintiff was filed with the court. See Filings Made Under
Seal, ECF No. 6. While Mr. Clark's amended complaint contains numerous
allegations, the thrust of his complaint relates to his allegation that the St. Lours
Public School District (SLPS) "became aware" of plaintiffs OOA program and
"developed a 'plan of action' to [T]ake Plaintiffs OOA program trade secrets in
January 2O04,"2 see Am. Compl. 1ln 26I-62, and that the federal government
subsequently infringed his copyright of the OOA program, see Am. Compl. !f fl 846,
849, 887, 934. More specifrcally, plaintiff contends that the United States
Department of Education's Response to Intervention (RTI) program infringes his
copyright. See, e.g., Am. Compl. flll 846, 849,934, 1168. According to plaintiff, RTI
is "an inclusive partnership between aII school personnel and families to identify
and address the behavioral academic needs ofboth regular and special education
students," Am. Compl. tf 856, which was based upon plaintiffs copyrighted OOA
program, see, e.9., Am. Compl. flfl 847-48, 887.

Memorandum in Support of Plaintiffs Rule 23 Motion for a Defendant Class Action
Certification Order. All but the last four identified were fiIed with the court. See
Order (June 12, 2012) at2
2 Plaintiff uses somewhat unusual formatting, such as the bracketing of upper-case
Ietters outside ofthe context of altering a quotation. The Court will simply quote
the Amended Complaint as written, rather than correcting such formatting choices
or errors.
,)

On June 15, 2005, plaintiff applied for a patent for the OOA program by
submitting United States Patent Application No. 11/153,118 to the United States
Patent and Trademark Office (USPTO). See Am. Compl. fl 1896; Ex. 253, ECF No.
11; Def.'s Mot App. at 13. The USPTO never issued a patent based on this
application, and on October 25,2010, issued a Notice ofAbandonment to plaintiff
because he did not "timely file a proper reply" to a letter from the USPTO. See
Def.'s Mot. App. at 13-14,

Plaintiff previously fiIed a similar lawsuit in the United States District Court
for the Eastern District of Missouri. Clarh u. Crues, No. 4:O5CYI344, 2007 WL
9067 02 (E.D. Mo. March 23, 2007). In that case, Mr. Clark alleged that school and
school system employees, as well as the City of St. Louis, the Board of Education,
and the SLPS, infringed the same patent application and copyrighted work at issue
in this case. Id. In March of 2007, the district court granted summary judgment for
the defendants, dismissing Mr. Clark's complaint with prejudice. Id. Mister Clark
appealed to the Federal Circuit, and his appeal was denied on January 8, 2008.
Clarh u. Crues, No. 2007 -1377 ,2008 WL 145255 (Fed. Cir. Jan. 8, 2008). The
present case appears to be based in large part on the same underlying facts, with
many ofthe claims now styled as against the United States "acting through" the
state and local entities that were named as defendants in Mr. Clark's orior
litigation.

Plaintiffs amended compiaint contains twenty-eight "causes of action," each
of which contains between one and six counts. As explained in the government's
motion to dismiss, the twenty-eight causes of action and their sub-counts can oe
broadly grouped into nine categories: (1) illegal exaction claims, Causes ofAction 1
(Counts I-\) and 24; (2) sectecy order claims, Causes of Action 2 ard 22 (Counts IIII); (3) tort claims, Causes ofAction 3 (Counts I-\T), 4 (Counts I-II), 9, 15 (Counts
I-III), 18, and 25-26; (4) copyright infringement claims, Causes of Action 5-8, 1014, and 20 (Counts I-III); (5) unauthorized use ofa patent claims, Cause of Action
19 (Counts I-IID; (6) 19 U.S.C. $ 1337 claims, Cause of Action 16; (7) Constitution
Article I claims, Cause of Action 17; (8) Fifth Amendment takings claims, Causes of
Action 21 (Counts I-II), and 23; and (9) implied-in-fact contract claims, Causes of
Action 27-28.3 The government has moved to dismiss plaintiff s entire amended
complaint under Rules 41(b), 12&X1), and 12(bX6) of the Rules of the United States
Court of Federal Claims (RCFC). The government argues that the entire complaint
should be dismissed under RCFC 41ft) because it fails to comply with the "short
and plain statement" requirements of RCFC 8(a). Def.'s Mot. at 9. In addition, the
3 The Court notes that Mr. Ciark disagrees with the government's categorization of
some of his claims. See, e.9., Pl.'s Resp. to Mot. to Dismiss at 55. Any relevant
points of disagreement will be discussed by the Court when addressing the cause of
action at issue. Categorization is essential, however, in dealing with claims ofsuch
volume.
?

government contends that plaintiffs illegal exaction claims, secrecy order claims,
tort claims, unauthorized use of patent claims, 19 U.S.C. S 1337 claims,
Constitution Article I claims, and implied contract claims should be dismissed for
Iack of jurisdiction pursuant to RCFC 12(bX1), and that plaintiffs remaining claims
for copyright infringement and takings under the Fifth Amendment should be
dismissed for failure to state a claim pursuant to RCFC 120)(6). Id. at 9-10.
Mister Clark has filed a response in opposition to the government's motion to
dismiss ("PI.'s Resp."), and the government frled a reply in support of its motion
("Def.'s Reply";.+

II.

DISCUSSION

A. Legal Standards
While pro se plaintiffs' filings are to be liberally construed, see Erichson u.
Po,rd,us,551 U.S. 89, 94 (2007), this ienient standard "does not relieve a pro se
plaintiff from meeting jurisdictional requirements." See, e.g., Bernard u. United
States, 59 Fed.Cl. 497, 499, aff'd,98 F. App'x 860 (Fed. Cir. 2004) (Table) (emphasis
omitted). Under RCFC 12G)(1), claims brought before our court must be dismissed
when it is shown that we lack jurisdiction over their subject matter. When
considering a motion to dismiss for lack of subject-matter jurisdiction, a court will
normally accept as true all factual allegations made by the pleader and draw aII
reasonable inferences in the lieht most favorable to that Dartv. See Scheuer u.
a On Septembet 26,2O13,

plaintiff also frled two motions for sanctions against
defendant pursuant to RCFC 11. Pl.'s 1st Mot., ECF No. 84; Pl's 2nd Mot., ECF No.
85. Defendant filed a timely reply on October 24, 2013. Plaintiff makes four
arguments for sanctions: that defendant intentionally misrepresented its address;
improperly executed certificates of service; caused procedural irregularities; and
caused unnecessary delay by not opposing plaintiffs two motions for leave to file.
lst Mot. 1l'|!T 6-9; 2nd Mot. fl![ 14-38. Defendant requests, inter alia,9152,880 in
frnes against defendant. 1st Mot. at 15-16; 2nd Mot. at 19-2O. After evaluatins the
evidence the Court frnds that defendant has not made any material
misrepresentations and that none of defendant's conduct demonstrates even a
modicum ofthe lack of candor that could trigger Rule 11 sanctions. First, defendant
never misrepresented its address; the Department of Justice uses a centralized
processing facility for united states Postal service mail and a different address for
private courier delivery. Plaintiffs confusion about these addresses is not due to
defendant's malfeasance. Second, defendant may delegate agents to accept servrce
of fiIings; they did so. Third, the court has no jurisdiction to consider issues that
were previously before the Federal circuit. Moreover, any procedural irregularities
within this case are issues to be addressed with the court, not defendant. Fourth,
defendant's decisions not to oppose plaintiffs motions, embodied in its notice ofno
opposition, ECF No. 73, complied with our rules.

^

Rhodes,416 U.S. 232,236 (1974); Hxton u. B&B Plastics, Inc.,29l F.Sd 1324, 1326
(Fed. Cir. 2002) (requiring that on a motion to dismiss for lack of subject-matter
jurisdiction the court views "the alleged facts in the complaint as true, and if the
facts reveal any reasonable basis upon which the non-movant may prevail,
dismissal is inappropriate").
Because the Tucker Act,28 U.S.C. $ 1491, does not create any substantive
rights, a plaintiff must identify a separate source of law that creates a right to
money damages for his claims to be within our jurisdiction. Jan's Helicopter Seru.,
Inc. u. FAA,525 F.3d 1299, 1306 (Fed. Cir. 2008) (quoting Fisher u. United States,
402 F.3d lL67,II72 (Fed. Cir. 2OO5) (en banc rn relevant part)). The test for
determining whether a statute or regulation can support jurisdiction in our court is
whether it can be fairly interpreted as mandating compensation. See, e.g.' United
States u. White Mountain Apache Tribe,537 U.S. 465, 472-73 (2003); United States
u, Mitchell,463 U.S. 206,216-17 (1983); Fisher,402 F.3d at ll73-74; Contreras u.
United States,64 Fed. CI. 583, 588-92 (2005).

In addition, to survive a motion to dismiss for failure to state a claim under
RCFC 12G)(6), "a complaint must contain sufficient factual matter, accepted as
true, to'state a claim to relief that is plausible on its face."' Ashcroft u' Iqbal,556
U.S. 662, 678 (2009) (quoting BeIl AtI. Corp. u. Twomblv,550 U.S' 544, 570 (2007))'
"A claim has facial plausibility when the plaintiffpleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Id. (citing Twombly,550 U.S. at 556). When determining
whether to grant a RuIe 12(b)(6) motion, the court "must accept as true aII the
factual allegations in the complaint" and make "all reasonable inferences in favor of
the non-movant." Sommers Oil Co. u. United States,241 F.3d 1375, 1378 (Fed' Cir'
2001) (citations omitted). However, "threadbare recitals ofa cause of action's
elements, supported by mere conclusory statements" are insuffrcient. see lqbal,556
U.S. at 678 (citing Twombly,550 U.S. at 555)'
RuIe 8(a) requires complaints fiIed in our court to contain "a short and plain
statement of the grounds for the court's jurisdiction," and "a short and plain
statement of the claim showing that the pleader is entitled to relief." RCFC 8(a)(1)(2). Under RuIe 41(b), "[i]f the plaintiff fails to prosecute or to comply with these
rules or a court order, the court may dismiss" the case. RCFC 41(b).

B. The Government's Motion to Dismiss this

Case

Defendant has moved to dismiss the amended complaint in its entirety,
under RCFC 41(b), arguing that violations ofthe "short and plain statement"
requirements of RCFC 8(a) warrant dismissal. Def.'s Mot. at 10-12' While thrs
complaint of roughly 628 pages is anything but short, the Court does not frnd this a
suitable ground for dismissing the case under RCFC 41&). Such dismissals should

be reserved for occasions when a plaintiff fails to clarifu a complaint after being
ordered to do so, see Lewis u. rJnited States, Sl Fed. CI. 607, 611-13 (1994), and
usually entail the allowance of a further pleading. see ciralhsy u. c.l.A.,355 F.3d
661. 669-?1 (D.C. Cir. 20O4); Gharb u. United Srotes, No. 12-91lC, 2013 WL
4828589, at *5 (Fed. CI. Sept. 9, 2013). While the sheer length ofthe complaint
makes this diffrcult, the bases of Mr. clark's claims can be discerned, ultimately to

his detriment.

In many respects, Mr. Clark's complaint (as well as many of his other frlings)
is a very impressive document. Plaintiff obviously thought a gteat deal about his
claims, and spent much time and effort to research, organize, and handwrite a
pleading of daunting length. But, as we shall see, despite employing hundreds of
allege
i.g.. uid thousands of paragraphs, Mr. Clark was not able to suffrcientlygranted.
jurisdiction and upon which relief can be
;lalms that are both within our
Our court does not have jurisdiction over claims against defendants other

thantheUnitedStates.See2sU.S.C.SSlagl(a),1498(a);UnitedStatesu.
jurisdiction of our court.s
Sherwood,,312 U.S. 584, 588 (1941) (holding that
for ' ' relief against
f."d"""*"o, was Iimited to "money judgments in suits brought !78' Ct. Cl. 593, 598
ih" U.rit"d States,,); D.R. Smalley &, 5i"", Inc. u. (Jnited States,
(lset; Dt"n u. Albertelli Law,9d Fed. Cl. 624' 626 (2011)' To the extent-that,Mr'
not
dtu.t;. ciaims do not allege a violation ofthe law by the united states, they do
fall within our jurisdiction.
In this regard it is worth noting that while RCFC 8(a) does not support
other two grounds
dismissal of the lawsuit under RCFC?1@), it does bear on the
Rules of Civil
for dismissal. The Supreme Court has held that the Federal
ProcedurecounterparttoRCFC8(a)mayrequiredismissalforfailuretostatea
and
.tuinr tpot which reliefcan be granted, when allegations are conclusory
at555-5,7'
i-pf"".itf". Seelqbal,Sfe U.5.at6?&-80; Twomblv'550U'S' and local Manvof
plaintlffs allegations are directed toward entities such as state
'g"".."*""t uierrcie. and private companies ,,acting through" the-[Jnited States.
than the
3in"" oo. irrriJdiction does not extendlo claims against parties other
government
United States, the Court concludes that allegations of federal
must be dismissed
involvement which fail the standatds of Twombly and Iqbal
under RCFC 12&Xi).

illegal

Plaintiffs first and twenty-fourth causes of action are based on an
An illegal exaction
exaction theory. See Am. Compi' at 23L,234,248' 252' 254'

the claimant rn
o"c.r"" *h"n morrey is "improperly paid, exacted' or taken from
Norman u' unit.ed
contravention of the constitution, a statute, or a regulation."
Federal Circuit
itates,429 F.3d 1081, 1095 (Fed. Cir' 2005) (citations omitted)' The

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has held that our court has jurisdiction over illegal exactions that are based upon
"an asserted statutory power." Aerolineas Argentinas u. United States, 77 F.3d
1564, 1573 (Fed. Cir. 1996) (citations omitted).

The majority of Mr. Clark's illegal exaction counts must be dismissed because
they allege exactions by entities other than the United States, and do not actually
allege the illegal collecting of money under color of law, as is required to state a
claim for an illegal exaction. see Aerolineas Argentinas, TT F.3d at 1573. The frrst
four counts of plaintiffs first cause of action do not sufficiently allege that the
purported exactions were executed by the United States. For example, the first two
counts allege wrongdoing by various state and local government agencies and
employees, resulting in the illegal exaction of $?,000 and $125,000, respectively,
f.om plaintiff. See Am. Compl. at 229-47. The first count is based on the allegation
that a local board of education employee was wrongfully paid $7,000 for plaintiffs
invention, see id'. l1\l 973-77, and the second count alleges that the wrongful
termination of plaintiffs teaching license/certificate constitutes an illegal exaction
for which plaintiff should be compensated $125,000, see id. lll 1043-48. Mister
clark frames each ofthese allegations as having been carried out by the United
,,acting through" various state and local government agencies and employees,
States
jurisdictron'
but this characterization is insufficient to bring his claims within our
Merely asserting that actions allegedly taken by state and local government
ugurr.i"" and employees were actually taken by the United States does not make it
sJ. plaintiff has not identified sufficient support for his theory that the United
states government orchestrated the chain of events detailed in these allegations
that wo-"uld bring his claim into the realm of plausibility, as is required by lqbal.s
See lqbal,556 U.S. at 678.

similarly, the third and fourth counts of plaintiffs first cause of action do not
sufficiently allege action by the Uniteil states. The fourth count alleges wrongdoing
tv u ttut" ug"n[', ttt" Office of the Secretary of State of Missouri' see Am' Compl' at
htb' Seru'
ZbZ-Sg, over which our court has no jurisdiction' See Souders u' S'C'
united
Auth.,497 F.3d 1303, 1308 (Fed. clr. zooz). The thircl count alleges that the
exacted
States, acting through two private law firms and the USPTO' illegally
charging him various fees related to his patent application,
r.o-

ituirrtirity

$o,ezs
be
while allegedly knowing thaihis patent application for the OOA program would
denied. See AL. Compi. at 248-SL. To the extent that this count alleges
jurisdiction'
wrongdoing by private law firms, it clearly falls outside ofthis court's

5 In fact, for most of plaintiffs allegations, no support is offered for the proposition
the
that the united states governm"rrt curr"ed the chain ofevents at issue. Instead,
co-plai.rt merely contains the broad assertion that "Defendant' acting through [a
Plaintiff
state or local government agency or employee]," did such things as' "told
bv
his teaching certificate wouid expire," Am. Compl. ll 994, "threatened Plaintiff
id.
way of a coirmunicatio n," id,. ll g-g7, or caused his teaching license to expire,
nf 1044, ro47-48.
.1

To the extent, however, that plaintiff alleges wrongdoing by the united states itself,
through the actions ofthe usPTo --- a federal agency --- plaintiffs claim still must
be dismissed because the alleged "exaction" by the USPTO is based upon plaintiffs
voluntary payment ofprocessing fees for his patent application -" a far cry from
"monies that the government has required to be paid contrary to law'" See
Aerolineas Argentinas, TT F.3d at 1572-73. Because the government is permitted to
collect fees from those seeking to have their patent applications processed, and
there has been no allegation that the government exceeded its authority in
collecting plaintiffs fee, this is not an illegal exaction.

Although the fifth count ofplaintiffs frrst cause of action identifres alleged
wrongiloing by various federal agencies, it too fails because it does not allege that
the gfvernment illegally required the payment of money by plaintiff under color of
Iaw. see Am. compl. at 254-56. Mister Clark alleges that the united states
Copyright Office and the Library of Congress "[E]xacted Plaintiffs financial deposit
only to fail in
[for reglstration ofthe OOA program for copyright protection] '
upholdlng proper recognition, communications and protection upon which Plaintiff
puid -ott"y accordingly," Am. Compl. fl 10?5, and thus, plaintiffs deposit was
ittegally exacted. Id.-n rc76. But unless there has been some allegation that the
gov"ernment exceeded its authority in charging plaintiff this fee, such as by charging
plaintiff a higher amount than it is permitted to charge, the voluntary payment ofa
See Aerolineas
?ee for copyright registration cannot constitute an iIIegaI exaction.
Argentinls, ZZ f.Sd at Ib72-75. Moreover, copyright registration does not impose a
b..id"r, on the federal government to "protect" plaintiffs registered work; rather,
copyright registration is a tool to assist owners of registered works in enforc-ing
th"i. o]*" cof,yrights. See, e.g.,17 U.S.C. $ 1203. Lastly, plaintiffs twenty-fourth
government
cause of action, *tti"tt alleges wrongdoing by federal, state, and local
plaintiff. see Amagencies, does not seek the return of money illegally exacted from
c"ompl. at 611-15. Instead, this claim appears to be based on the government's
failure to pay royalties to plaintiff for its alleged use of his invention. see id. since
this clairrrdoes not seek the return of money illegally exacted under color of law' it
also fails to state a claim for an iIIegaI exaction'

A number of Mr. clark's causes of action sound in tort, and thus concern
of
conduct that can only come under our jurisdiction when it is the result of a breach
contract. See 28 U.d.C. $ 1a91(a)(1) (granting the Court 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 uny u*p."." or implied contract with the United States, or for liquidated or
unliquidated damages in cas"s not sounding in tort") (emphasis added); Wood u'
[Jnited States,961 F.2d 195, 197-98 (Fed. Cir. 1992)'

-8-

The tort claims alleged by Mr. Clark are contained in causes ofaction three,
four, nine, fifteen, eighteen, twenty-five, and twenty-six.6 See Am. Compl. at 353409C, 430-38, 476-83,6L6-22. Cause ofaction three alleges the misappropriation
of plaintiffs invention --- the OOA program --- by a number of entities, including
state and local government agencies and employees, private law firms, federal
agencies and contractors, and private telecommunications companies. See Am.
Compl. at 353-77. Plaintiffs fourth cause of action alleges the misappropriation of
trade secrets related to his OOA program by such entities. See Am. Compl. at 378409C. In his ninth cause of action, Mr. Clark alleges that various state and local
government agencies and employees? misappropriated an industrial design of his
creation when they used a hall pass that is substantially similar to that designed by
plaintiff for the OOA program. See Am. Compl. at 430-38. Plaintiff s frfteenth
cause of action alleges the improper acquisition of trade secrets related to plaintiffs
OOA program by a variety of federal, state, and local agencies and employees, as
weII as private companies. See Am. Compl. at 476-83. Mister Clark's twenty-fifth
cause of action alleges that the government, "acting through unknown agencies'
[has] subjected Plaintiff and his industry to unfair practices in Import trade," Am'
compl. ,lJ 617, has "caused permanent damage to Plaintiffs domestic industries," id.
n 2226, and has destroyed his company, id. n 2227.8 Finally, plaintiffs twenty-sixth
cause of action alleges the misappropriation and infringement of "proprietary data
information" related to the OOA program. See Am. Compl' at 619-22'
Each of these claims sounds in tort, and thus, must be dismissed for lack of
jurisdiction.e See 28 U.S.C. $ 1a91(a)(1); Sterner u. United Stores, 198 Ct. CI. 979
do not sound in tort, but rather are
takings claims. See Pl.'s Resp. at 55. The Court does not think that these claims
can be plausibly construed as takings claims, but dismissal would still be warranted
if they were so construed for the reasons set forth in section II.B.9. Plaintiff also
references the Tucker Act as the basis of these claims, PI.'s Resp. at 55, but as
noted, that Act does not create any substantive rights, and Mr. Clark has not
identified a separate source oflaw that creates a right to money damages'

6 Mister

clark contends that these claims

? Plaintiff once again alleges that these actions were taken by the United States,
acting through various other agencies and individuals, but does not provide any
support for the contention that the United States played any role in this chain of
events. Plaintiff also seems to allege that a private law frrm "perhaps" played a role
in misappropriating his design. Compl. fl 1660-61'
does not provide further elaboration ofthese claims in his discussion of
this cause of action. See Am. Compl. at 616-18.

s Plaintiff

s In addition, plaintiffs trade secret claim must be dismissed because a concept
disclosed in a patent (or here, a patent application), cannot be a trade secret. As the
Federal Circuit has explained: "A trade secret is secret. A patent is not That
-9-

(19?2) (claims for misappropriation of trade secrets sound in tort); Liberty
Ammunition, Inc. u. [Jnited States, l0I Fed. Cl. 581, 591 (2011) (claims for unfair
competition sound in tort). The Court notes that there are substantial overlaps
among many of plaintiffs claims, and the legal bases for these claims are at times
difficult to discern. Thus, to the extent that any ofthe claims discussed within this
section allege the unauthorized use of a patent, they do not fall within our court's
jurisdiction for the reasons set forth in section II.B.3, and to the extent that they
may allege copyright infringement, they do not state a claim for the reasons set
forth in section II.B.8.

Mister Clark alleges in his nineteenth cause of action that local, state, and
federal government agencies and employees, as well as private companies and law
firms, infringed his patent.10 See Am. Compl' at 515-36. Plaintiffs patent
infringement claims are based on his patent application for the OOA program
(Patent Application Number 11/153,118), from which no patent ever issued. see id.
since this application was never granted, and plaintiff has not identifred a patent of
his that was ever issued by the usPTo, plaintilf has failed to establish that he is
the owner of an issued patent --- a jurisdictional prerequisite to this court's
consideration of claims of patent infringement by the United States government.
See 28 U.S.C. $ 1a98(a) (establishing the court's jurisdiction over claims of
unauthorized use or manufacture of"an invention described in and covered by a
patent of the United States"); Amgen, Inc. u. Genetics Inst', Inc',98 F'3d 1328, 1332
if"a. Cl. 1996) (,[O]f course suit cannot be brought for infringement ofa patent
that has not issued."); Martin u. United States' 99 Fed' Cl' 627, 632-33 (2011)
(holding that our court lacks "jurisdiction over a claim for alleged infringement of
an unissued patent"). Indeed, in plaintiffs prior litigation, his patent infringement
allegations were dismissed for this same reason, and the Federal Circuit upheld
thaidismissal . See Clarh u. Crues, No. 4:05CV1344 JCH,2007 WL 906702 (E.D.
Mo. March 23,2007), affd,260 Fed' App'x. 292,294 (Fed' Cir' 2008) (holding
,,[clark] can maintain an action for patent infringement only if and when he has
been issued a patent").

The second and twenty-second causes of action in plaintiffs amended
complaint allege the violation of a secrecy order related to plaintiffs patent

which is disclosed in a patent cannot be a trade secret." Atl. Research Mhtg' sys.,
Inc. u. Troy,659 F.3d 1345' 1357 (Fed' Cir.20ll)'
r0 As explained above, this court does not have jurisdiction ovel Mr. Clark's claims
to the extent that they allege wrongdoing by entities other than the united states.

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application. SeeAm. Compl. at 257-352,588-602. The Court lacks jurisdiction
over these claims as well, because plaintiff fails to meet the jurisdictional
prerequisites for bringing such a suit in our court. A plaintiff may seek
compensation related to a secrecy order under 35 U.S.C. $ 183 by either of two
"alternative litigation routes" --- (1) an applicant who has submitted a patent
application subject to a secrecy order can pursue an administrative route in which
the applicant first files a petition for compensation with the federal agency who
issued the order before filing suit; alternatively, (2) the owner of an issued patent
that was previously subject to a secrecy order can frle a suit in the Court of Federal
Claims. See 35 U.S.C. $ !83; Hornbach u. United States, 40 Fed. Cl. 524, 526-27
(1998). Here, Mr. Clark's claim fails because he has not identifred any secrecy order
related to his patent application --- a jurisdictional prerequisite for a claim under
either litigation route. Instead, plaintiff states that his application "may, or may
not have been subjected to a secrecy order." See Am. Compl. fl l07g. But even if
Mr. Clark had properly identifred a secrecy order, he failed to exhaust
administrative remedies before filing suit, as is required by the first litigation route.
see constant u. united states, 16 cl. ct. 629, 635 (1989), affd, 88a F.2d 1398 (Fed.
Cir. 1989), cert. denied,493 U.S. 1002 (1989) (holding rhat administrative
exhaustion was required). under the second route, Mr. clark's claim would also be
defective because he is not the owner of an issued patent. Accordingly, plaintiffs
secrecy order claims are dismissed.

In his sixteenth cause of action, Mr. Clark purports to bring a claim for
"unfair practices of exploitation trade" pursuant to 19 U.s.c. $ lagz(l), which allows

"an owner of [a] patent, copyright, mask work, or design,,that is subject to a trade
exclusion order to seek compensation in our court under 2g u.s.c. $ 149g. see Am.
compl. at 484-93. Because he fails to allege the existence of an exclusion order, the
court lacks jurisdiction over this claim. see zoltek corp. u. (Jnited srotes, bg Fed.
cl. 688, 694 (2003).

In his seventeenth cause of action, Mr. clark alleges that the government
deprived plaintiff of his "constitutionally protected Ip rights." see Am. compl. at
494-50I. This allegation is based on Article I, Section g, Clause g ofthe
constitution, which empowers congress "[t]o promote the progress of science and
useful Arts, by securing for limited rimes to Authors and Inventors the exclusrve
Right to their respective writings and Discoveries." u.s. const. art. I, g. Because
$
this clause is not money-mandating, the court does not have jurisdictioi over this
claim. See, e.g., Brown u. [Jnited States, 1-0b F.Bd 621, 628_24 (Fed. Cir. 1992)
(holding that our court does not have jurisdiction over Fourth Amendmenr claims
because it is not a money-mand ating); Tasby u. [Jnited states, gr Fed. cl. 844.846
- 1l -

(2010) (finding that the Court Iacks jurisdiction over claims brought pursuant to the
Ex Post Facto Clause, the First, Fourth, Fifth, Eighth, and Fourteenth
Amendments, and the separation ofpowers doctrine because these provisions are
not money-mandating).

7. Plaintiff's Implied-in-Fact Contract Claims: Causes of Action 27 and 28

Mister Clark's twenty-seventh and twenty-eighth causes of action purport to
be implied-in-fact contract claims, but do not suffrciently allege the elements needed
to prove an implied contract. See Am. Compl. at 628-28. The elements of an
implied-in-fact contract claim in our court are: (1) mutuality of intent to contract; (2)
consideration; (3) an unambiguous offer and acceptance; and, (4) actual authority on
the part ofthe government's representative to bind the government. Biltmore
Forest Broad, FM, Inc. u. United States, SSd F.3d lg7b, 13g0 (Fed. Cir. 200g).
Mister clark's twenty-seventh cause of action is based on an alleged failure
to "fairly and honestly consider proposals" --- presumably, this failure pertains to
the sLPS's purported acquisition of plaintiffs ooA program. see Am. compl. at
623-24. Plaintiff fails to allege any ofthe elements necessary to prove the existence
of an irnplied contract in his discussion of this claim, and insiead, merely makes
numerous broad assertions about various parties who "baited and enticed plaintiff
to submit his ooA program" to the sl,ps.rl see id.. ln his twenty-eighth cause of
action, Mr. clark also fails to allege an implied contract. Although he rnentions
"No-Bid contractual agreements approved in closed sessions," his assertions
regarding the actions of various school district employees and private companies do
not contain any of the details necessary to state a plausible claim for an implied
contract with the United States government.l2
1r In support of this cause ofaction, plaintiff
makes a variety of claims of doubttul
relevance to an implied contract claim. For example, plaintiff asserts that
"Defendant acting through sl-ps BoE did not Fairly and Honestly
consider
Defendant, acting through Rob Lee and/or schoor service system, proposal or Bid
because Lee provided No Bid or proposal." Am. compl.
I224s. plaintiff also srarcs,
"Defendant, acting through the identified parties herein, knowingly participated
in
improper business practices and personal conflict of interest actlviiies violating
+s
cFR Part 3 during the summer and FalI of 2o04 and throughout the 2004-0b
school
year." Id. lt 2247.
12 Instead, the complaint.contains
unusual allegations such as: ,,Defendant acting

through flocal school district employees, the sl-ps Board of Education, and
attorneys at a private law firm], did not consider Rob Lee's Bid, nor Lee.s
sub_
contractor Touchdown Enterprise, Inc., Bid Fairry and Honestly because
they didn,t
provide any Bids and No Bids were sought for said contract."
Am. compl. n 22bs.
Mister clark elaborated: 'Although plaintiff refers to an enticed proposal
as
compared to an unsolicited proposal, dated August, 2004,
said propo.ul is more Iike
-12-

In sum, because Mr. Clark does not explain how the actions identified in
these claims constitute the formation of implied contracts, and does not allege the
elements needed to prove such a claim, his allegations are insufficient to invoke this
court's jurisdiction. See Twp, of Saddle Brooh u. United States, I04 Fed. Cl. 101,
109-10 (2012) (citing /? idge Runner Forestry u. Sec'y of Agric., 287 F.3d 1058, 1060
(Fed. Cir. 2002)) (explaining that dismissal for Iack of subject-matter jurisdictron rs
appropriate when allegations as to the existence of an implied contract are
"insubstantial"). In addition, Mr. Clark's allegations do not plausibly implicate the
United States as a contracting party, and thus, fall outside of our jurisdiction for
this reason as well. Finally, to the extent that Mr. Clark attempts to style these
claims as a bid protest, he has not established this Court's jurisdiction because he
has not identified a federal solicitation, proposed award, award, or alleged violatron
of a statute or regulation in connection with a procurement or proposed
procurement, as is required by 28 U.S.C. $ 1491(b). See Am. CompI. ll 2246.

8. Plaintiff's Copyrieht Infrineement Claims:

Causes of Action 5-8. 10-14.

and 20

Mister Clark makes numerous allegations of copyright infringement. See
Am. Compl. at 410-30 (Causes of Action 5-8); Am. Compl. at 439-7 5 (Causes of
Action 10-14); Am. Compl at 542-56 (Cause of Action 20). Plaintiffs eighteenth
cause of action for "Infringement of IP Rights" may also be based on a copyright
infringement theory.tl See Am. Compl. at 502-14. At issue in each of these
allegations is Mr. Clark's copyright of various materials for his OOA program. The
majority of these claims are directed toward the actions of state and Iocal
government employees --- primarily, local school and school system employees, as
well as private individuals. See, e.g., Am. Compl. fll| 1629-30, 1693,1741-43,2002.
As indicated above, this court has no jurisdiction over such claims.

Plaintiff also alleges wrongdoing by a number of federal agencies in support
of his copyright infringement claims. For example, he contends that the federal
a Bid to assist the SLPS and show them how to implement his OOA program at a
compensable rate the same as his teaching salary." Am. Compl. n 2254.
13

It is difficult to discern the basis ofthis claim, despite its title,

plaintiff
merely states that numerous individuals and entities "Infringed Plaintiffs
because

Exclusive IP Rights," without offering critical details concerning the alleged
infringement, such as a description ofwhat was allegedly infringed or the nature of
such infringement. See, e.g., Am. Compl. flfl 1837-49. Plaintiff also describes
interference with his internet access and telephone service in this count. To the
extent that this claim is thus based in tort, it is dismissed for the reasons stated in
section II.B.2, and to the extent that it may be based on a patent infringement
theory, it is dismissed for the reasons stated in section II.B.B.
- l-) -

government "obtained unauthorized access to Plaintiffs personal computer
activities including access to his OOA computer program trade secret systems while
Plaintiff developed and maintained his OOA expressions." Am. Compl. fl 1590. He
further alleges: "Shortly after Defendant acting through unknown agencies
obtained Plaintiffs OOA program Trade Secrets and computer program systems
Defendant acting through the BIS an agency ofthe DOE filed numerous Revisions
[in the Federal Register] that may, or may not have pertained to the Governments
obtainment of said IP." Id. n 1597. The heart of plaintiffs complaint with respect
to the federal government seems to be that the government, upon obtaining access
to his OOA program, deprived plaintiff of his exclusive right to this work by
distributing it to its contractors and sub-contractors. See td. fl![ 1638-39, 1694-95,
1735,1745. This claim seems to be based in part on the idea that contractors such
as RTI International distributed programs allegedly derived from plaintiffs
copyrighted work. See td. flfl 169.{-95.
These claims, too, must be dismissed for several reasons. First, many of
these claims are not based on the infringement ofany interest protectable by
copyright law. It is axiomatic that "the protection granted to a copyrighted work
extends only to the particular expression ofthe idea and never to the idea itself."
Meade u. United States, 27 Fed. Cl. 367, 371 (1992) (citing.Felsr Publ'ns, Inc. u.
Rural TeI. Seru. Co.,499 U.S. 340 (1991)). This distinction is codified in 17 U.S.C.
$ 102, which states:

In no case does copyright protection for an original work of authorship
extend to any idea, procedure, process, system, method of operation,
concept, principle, or discovery, regardless ofthe form in which it is
described explained, illustrated, or embodied in such work.
17 U.S.C. S 102@). Although Mr. Clark alleges infringement of his OOA program,
the bulk ofhis allegations concern the use of tine ideas underlying his program.
rather than the expression ofthose ideas. That copyright protection does not extend
to such ideas is clear, and thus, to the extent that plaintiffs claims are based on
such a theory, they must be dismissed for failure to state a claim.ra See, e.g., Feist
Publ'ns, 499 U.S. at 344-50 (discussing the distinction between ideas and
expression); Harper & Row Publishers, Inc. u. Nation Enters.,4?1 U.S. bgg, bg1
(1985) (explaining that section 102 of the Copyright Act ',extends copyright

la rhe government

characterizes the nature of Mr. clark's allegedly infringed work
as a "business idea" in its motion to dismiss. see Def.'s Mot. at 21-22. Mister clark
disputes this label, apparently misunderstanding the government,s argument as
one that Mr. clark's invention is a business, or an idea of a business. See pl.'s Resn.
at 67. This misunderstanding is not relevant to the Court's decision, as the
government was merely discussing the distinction between the copyright ofideas
versus the expression of ideas. See Def.'s MoL at 2I-22.

t4-

protection to an author's literary form but permits free use by others ofthe ideas
and information the author communicates"); Boyle u. United States, 200 F.3d 1369,
1373 (Fed. Cir. 2000) ("Copyright protection does not extend to ideas expressed in a
copyrighted work."); Shiphouitz u. United States, 1Cl. Ct. 400, a03 (1983) ("Ut is
well known in copyright law that copyright registration only affords protection
against the manner in which a writing is written, and does not protect the ideas
contained therein."); Meade,27 Fed. Cl. at 371 (holding that a heart-shaped picture
ofthe Earth is not copyrightable because it is an idea, not an expression).

Mister Clark also alleges infringement of the expression of his copyrighted
work in his allegations concerning the OOA hall pass. See, e.g., Am. Compl.
fl!| 1629, 1735,774I. Upon a careful reading of Mr. Clark's allegations, it is evident
that Mr. Clark's grievance is with state and local government offrcials, and thus
presents a matter which falls outside ofthis court's jurisdiction. Moreover, even if
this matter were within our jurisdiction, it was previously adjudicated and would
thus be dismissed on res judicata grounds. See Clarh u. Crues, No. 4:05CV1344,
2007 WL 906702 (E.D. Mo. March 23, 2007) (dismissing Mr. Clark's claim for
infringement ofhis OOA program copyright by school and school system employees
and the Board of Education of the City of St. Louis), aff'd,260 F. App'x 292 (Fed.
Cir. 2008). To the extent that Mr. Clark has alleged infringement by the federal
government of the expression of his OOA work, Mr. Clark's allegations fail to
plausibly allege such infringement. The amended complaint is replete with
"threadbare" assertions of federal government involvement, but contains few details
from which the court could reasonably conclude that such involvement occurred,
and thus is insufficient to state a claim. See lqbal, b56 U.S. at 668; Twombly, EE}
U.S. at 555. In addition, a comparison of the copyrighted OOA program with the
alleged infringing work does not reveal sufficient similarity of expression to
constitute an infringement of Mr. clark's copyright. compare "Filings Made under
Seal," ECF No. 6, ruith Exs. 192-94, 2II,26E-66 to Compl., ECF No. 11.

Mister Clark's remaining claims, as alleged in his twenty-first and twentythird causes of action, are for Fifth Amendment takings. see Am. compl. at bb7-g0,
603-10. The Fifth Amendment prohibits the taking of private property by the
government for public use without just compensation. This court has exclusive
subject-matter jurisdiction over takings claims against the federal governmenr
seeking more than 910,000 in compensation.
23 U.S.C. $ 1a91(a)(1); Joz,s
^9ee
Helicopter seru., Inc. u. Fed. Auiation Admin., b25 F.Bd 1299, 1B0g-10 (Fed. cir.
2008).

Mister clark's twenty-first cause of action contains two counts, the first of
which is based entirely on alleged actions by state and local government agencies

-15-

and employees and, thus, does not fall within our jurisdiction.l5 See Am. Compl. at
564-75. Aithough much ofthe second count ofthat cause of action and the twentythird cause of action similarly alleges wrongdoing by entities other than the United
states government, these counts do identify some actions allegedly taken by federal
government agencies resulting in the purported taking of plaintiffs OOA progranl. re
Nevertheless, these claims must also be dismissed because their allegations of
federal government involvement are implausible and, for the most part,
unsupported by any detail whatsoever. For example, in the twenty-third cause of
action, Mr. Clark alleges that:
Defendant, acting through unknown state of MO and Federal agencies
plaintiff from disclosine and
from communicating the subject matter of his personal IOOA IFI
property with the public and did so using prior Restraint, censorship
and Mass Surveillance, and is continuing said physical
deprivations . . . .
of the Government, physically deprived

Am' compl. tT 2188. In count two of the twenty-first cause of action, Mr. clark
alleges that:
Defendant acting through Congressional Acts and Regulations of the
Federal Government approved Legislation and Bills
subjected
'rlhich
Plaintiffs OOA Ip to being [T]aken by the Government . . . .

Id. atll

2086.

while such claims

do, at least on their face, identify the federar government
as the purported actor, thev fail to plausibly preai "factual
.o"t""i
allow.

trr"
tirritl
court to draw the reasonable inference that tle defendant is
liable ftr the
misconduct alleged," and instead contain mere "threadbare,,
assertions
the federal government's invorvem-ent. see lqbar, bb6 u.s. at
"ega"airrg
668 (citing fi*omuty,
550 u.s. at 555-56). This is insufficient to survive a
motion to dismiss. see ld.
i![oreover' even if plaintiff had sufficiently identified action
taken by the
federal government as the basis of his craims, his takings craims
would
rrit
because they do not sufficiently allege o*rr"."hip of a
"tu
compensable property
interest. see Am. Pelagic Fishing co. u. united, states, B79l..sd
1g6s, rB72 Ged..
15 To

the extent that Mr. clark arleges that the actions ofthese
state and local
individuals and agencies were o"chestrated by the federal govern-"rrt,
trri.
contarns no supporting information to support that assertron.
"orrrrt
16

Plaintiff also aileges federal government involvement in the
condemnation of his
personal residence. The court finds no support
for the assertion that the feierar
government played a role in this process. See
Am. Compl. fltf 2Og4_gS.
-16-

Cir. 2004) (citing Maritrans Inc. u. United States,342 F.3d 1344, 1352 (Fed. Crr.
2003)). Because Mr. Clark alleges the taking ofproperty not covered by an issued
patent, and not protected by his copyright because it is a business idea, he has not
alleged the taking ofa legally cognizable property interest. Therefore, his takings
allegations are insufficient to state a claim against the United States, even if they
can be read as properly alleging federal government involvement.
As explained above, to the extent that any ofthe counts within plaintiffs
twenty-eight causes ofaction allege wrongdoing by any party other than the federal
government or its agents, these are dismissed for lack of subject-matter jurisdiction
pursuant to RCFC 12(bX1). Causes of action 1-4, 9, 15-19, 22, and 24-28 arc also
dismissed for Iacking subject matter jurisdiction. In the alternative, to the extent
they would be construed as alleging a taking or a copyright infringement, causes of
action 3, 4, 9, 15, 18, 25 and 26 are dismissed for failing to state a claim for which
relief may be granted pursuant to RCFC 12(b)(6). And causes of action b-8, 10_14,
20-2I, and 23 are also dismissed under RCFC 12ftX6).

III.

CONCLUSION

For the foregoing reasons, the government's motion to dismiss plaintiffs
entire Amended Complaint is hereby GRANTED pursuant to RCFC 12(bX1) & (6).
Plaintiffs three motions for sanctions are DENIED, and all other pending motions
are DEMED as moot. The clerk shall enter judgment accordingly. No costs shall
be awarded.

IT IS SO ORDERED.

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