Clark v. United States , 632 F. App'x 1027 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JAMES HEDMAN CLARK,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2015-5002
______________________
Appeal from the United States Court of Federal
Claims in No. 1:11-cv-00010-VJW, Judge Victor J. Wolski.
______________________
Decided: November 25, 2015
______________________
JAMES HEDMAN CLARK, St. Louis, MO, pro se.
SCOTT DAVID BOLDEN, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for appellee. Also represented by JOHN
J. FARGO, BENJAMIN C. MIZER.
______________________
Before TARANTO, PLAGER, and LINN, Circuit Judges.
2 CLARK v. US
PER CURIAM
James Clark owns a federally registered copyright on
a pamphlet describing a program that he developed for
modifying student behavior. He filed for a patent on his
program but abandoned the application. He brought the
present action against the United States in the Court of
Federal Claims, alleging, among other things, that the
government had infringed his copyright and patent rights
in the program and had violated a secrecy order imposed
on his patent application. The Court of Federal Claims
dismissed all of Mr. Clark’s claims. We affirm.
BACKGROUND
Mr. Clark worked as a probationary teacher in St.
Louis, Missouri, from October 2003 until at least the end
of the 2004–2005 school year. In the spring of 2004, he
developed a program for modifying student behavior, in
particular the behavior of students at Roosevelt Ninth
Grade Learning Center, which he titled the Out of Area
Program. In addition to describing how to implement the
Program, a pamphlet describing the Program contains
multiple exhibits, including a model Hall Pass. Mr. Clark
obtained federal copyright registration on the Program
pamphlet on April 22, 2005. Copyright Registration No.
TX0006164501. He applied for a patent on the Program
in June 2005, U.S. Patent Application No. 11/153,118, but
abandoned the application in October 2010.
On May 22, 2006, Mr. Clark filed a complaint in the
United States District Court for the Eastern District of
Missouri against several individuals, the St. Louis Board
of Education, and the St. Louis Public School District,
alleging, among other things, patent infringement and
copyright infringement. Clark v. Crues, No. 4:05-CV-
1344, 2007 WL 906702, at *3 (E.D. Mo. Mar. 23, 2007).
The district court dismissed the patent-infringement
claims because Mr. Clark had not shown the existence of
a patent covering the Program. Id. at *5. The court also
CLARK v. US 3
dismissed the copyright-infringement claims because Mr.
Clark had not alleged that the defendants copied the
expressive elements of the Program pamphlet, as opposed
to merely using the ideas embodied in it. Id. at *7. On
appeal, this court affirmed the district court’s judgment in
its entirety. Clark v. Crues, 260 F. App’x 292, 295 (Fed.
Cir. 2008).
On January 5, 2011, Mr. Clark sued the United States
in the Court of Federal Claims on numerous grounds.
The Court of Federal Claims grouped the causes of action
in Mr. Clark’s complaint into nine categories. Three of
those categories are relevant here: Mr. Clark alleges that
the United States has infringed what he believes to be his
patent rights in the Program; has violated a secrecy order
relating to his patent application; and has infringed his
copyright on the Program. 1
The Court of Federal Claims granted the govern-
ment’s motion to dismiss all of Mr. Clark’s claims. The
court dismissed the claims for lack of jurisdiction to the
extent that they allege a violation committed by someone
other than the United States. The court dismissed the
patent-infringement claims for lack of jurisdiction because
Mr. Clark had not adequately alleged that he was the
owner of any U.S. patent. It dismissed the secrecy-order
claims for lack of jurisdiction, giving three reasons: Mr.
Clark had not adequately alleged the existence of a rele-
vant secrecy order; if such an order exists, Mr. Clark had
not exhausted his administrative remedies as required
under 35 U.S.C. § 183; and Mr. Clark may not originally
challenge any secrecy order in the Court of Federal
1 The other six categories of claims are: (1) illegal
exaction claims, (2) tort claims, (3) claims under 19 U.S.C.
§ 1337, (4) claims under Article I of the United States
Constitution, (5) Fifth Amendment Takings claims, and
(6) implied-in-fact contract claims.
4 CLARK v. US
Claims under § 183 because his patent application did not
issue.
The court also dismissed Mr. Clark’s copyright-
infringement claims on multiple grounds. First, the court
determined that most of Mr. Clark’s complaint fails to
state a claim on which relief can be granted because his
allegations concern the use of the ideas embodied in the
Program, rather than the expression of those ideas.
Second, the court determined that the complaint does not
sufficiently allege federal-government involvement in the
allegedly infringing acts. Last, the court concluded that
the allegedly infringing works were not sufficiently simi-
lar to the Program pamphlet to constitute copyright
infringement.
On appeal, Mr. Clark requests that we vacate the
2007 judgment of the Eastern District of Missouri and
this court’s 2008 judgment affirming it. He also argues
that the Court of Federal Claims erred in dismissing his
patent-infringement claims, given the liberal pleading
standards typically afforded to pro se litigants; erred in
dismissing his secrecy-order claims because the Invention
Secrecy Act is unconstitutional; and erred in dismissing
his copyright-infringement claims because the Program is
copyrightable subject matter. We have jurisdiction under
28 U.S.C. § 1295(a)(3).
DISCUSSION
We review de novo the Court of Federal Claims’ grant
of a motion to dismiss for lack of jurisdiction or for failure
to state a claim. Bay View Inc. v. United States, 278 F.3d
1259, 1263 (Fed. Cir. 2001). A plaintiff fails to state a
claim when the facts pleaded, viewed in the light most
favorable to the plaintiff, do not “raise a right to relief
above the speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
CLARK v. US 5
As a preliminary matter, Mr. Clark’s complaint makes
allegations against not only the United States but also
various private and state and local governmental entities.
The Court of Federal Claims correctly determined that it
lacks jurisdiction over claims against entities other than
the United States. 28 U.S.C. §§ 1491(a), 1498(a).
Mr. Clark’s request that we vacate our 2008 judgment
and the 2007 judgment of the Eastern District of Missouri
fails. Mr. Clark petitioned for rehearing of our 2008
judgment, and on February 12, 2008, we denied that
petition. The 2007 and 2008 judgments are not collateral-
ly reviewable by us now or by the Court of Federal
Claims. Innovair Aviation Ltd. v. United States, 632 F.3d
1336, 1344 (Fed. Cir. 2011); Vereda, Ltda. v. United
States, 271 F.3d 1367, 1375 (Fed. Cir. 2001); Joshua v.
United States, 17 F.3d 378, 380 (Fed. Cir. 1994) (“the
Court of Federal Claims does not have jurisdiction to
review the decisions of district courts”).
As to his patent-infringement claims, Mr. Clark does
not directly challenge the Court of Federal Claims’ deter-
mination that it lacked jurisdiction to hear those claims.
Instead, Mr. Clark challenges the jurisdiction of the
Eastern District of Missouri to hear his patent-
infringement claims, as well as this court’s jurisdiction to
review the district court’s judgment. As discussed above,
this court does not review our 2008 judgment or the 2007
judgment of the Eastern District of Missouri.
To the extent that Mr. Clark does challenge the Court
of Federal Claims’ dismissal of his patent-infringement
claims, the challenge must fail: the court did not err in
dismissing his claims for lack of jurisdiction. The Court of
Federal Claims has jurisdiction over actions against the
United States by an owner of a U.S. patent when the
government uses or makes without authorization “an
invention described in and covered by a patent of the
United States.” 28 U.S.C. § 1498(a). Mr. Clark’s applica-
6 CLARK v. US
tion to patent the Program was abandoned, and Mr. Clark
has not identified an issued patent covering the Program.
See Martin v. United States, 99 Fed. Cl. 627, 632 (2011)
(“section 1498 does not grant the Court of Federal Claims
jurisdiction over a claim for alleged infringement of an
unissued patent”); cf. Amgen, Inc. v. Genetics Inst., Inc.,
98 F.3d 1328, 1332 (Fed. Cir. 1996) (“of course suit can
not be brought for infringement of a patent that has not
issued”).
The Court of Federal Claims also correctly dismissed
Mr. Clark’s claims that the government violated a secrecy
order in relation to his patent application. The Invention
Secrecy Act, 35 U.S.C. §§ 181–88, provides two routes for
seeking compensation for damage caused by the United
States’ imposition of a secrecy order concerning a patent
application: (1) for a non-issued patent, applying to the
head of the department or agency that issued the secrecy
order for a settlement to compensate the applicant for any
loss, the settlement challengeable in the Court of Federal
Claims or a federal district court; and (2) for an issued
patent, filing a suit in the Court of Federal Claims for just
compensation. 35 U.S.C. § 183. Mr. Clark does not own
an issued patent, and this appeal does not arise from an
agency settlement concerning a secrecy order imposed on
Mr. Clark’s patent application. Thus, the Court of Feder-
al Claims lacked jurisdiction to hear Mr. Clark’s secrecy-
order claims. 2
2 Mr. Clark did not raise in the Court of Federal
Claims his new contention that the Invention Secrecy Act
is unconstitutional—or explain here on what basis such a
claim could have been within that court’s limited jurisdic-
tion. Similarly, he did not raise in the Court of Federal
Claims his new contention that the United States violated
the Fifth Amendment by ordering that his patent applica-
CLARK v. US 7
As to his copyright-infringement claims, Mr. Clark
argues that the United States infringed his copyright by
preparing works derivative of the Program. In particular,
he argues that his copyright registration for the Program
establishes a prima facie case for the validity of the
Program’s copyright and that the Program is not an idea
but is instead copyrightable subject matter.
The Court of Federal Claims correctly dismissed Mr.
Clark’s claims of copyright infringement. Although Mr.
Clark owns a copyright on the Program pamphlet, that is
not enough to plausibly allege a claim for copyright in-
fringement. Mr. Clark must also plausibly allege facts
indicating that someone other than himself—someone for
whose actions the United States is liable under 28 U.S.C.
§ 1498(b)—copied elements of the Program pamphlet
protectable under the Copyright Act. Feist Publications,
Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). He
has not done so.
His complaint alleges that contractors and sub-
contractors of the United States used the ideas embodied
in the Program, which are not entitled to copyright pro-
tection. 17 U.S.C. § 102(b); Clark, 260 F. App’x at 293–94.
Read liberally, the complaint also can be understood to
allege that state and local officials copied some expressive
elements of the Program pamphlet, in particular the Hall
Pass. See Complaint at ¶ 1629 (“Defendant Warmack . . .
obtained said OOA Hall Pass and performed the expres-
sion thereof.”). But the complaint alleges only that the
United States “act[ed] through” those state and local
officials, see e.g., Complaint at ¶¶ 1630–31, 1737, without
alleging any facts plausibly showing that those officials
were acting for or with the authorization of the United
States in the ways required for liability under § 1498(b).
tion be kept secret without issuing a formal secrecy or-
der—or explain the jurisdictional basis for such a claim.
8 CLARK v. US
The Court of Federal Claims thus correctly dismissed Mr.
Clark’s copyright-infringement allegations for failure to
state a claim.
CONCLUSION
For the foregoing reasons, we affirm the judgment of
the Court of Federal Claims.
AFFIRMED