Case: 21-1961 Document: 37 Page: 1 Filed: 06/13/2022

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

DONALD L. BAKER, Plaintiff-Appellant

v.

GINA M. RAIMONDO, SECRETARY OF COMMERCE, KATHERINE K. VIDAL, UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR OF THE UNITED STATES PATENT AND TRADEMARK OFFICE, Defendants-Appellees ______________________

2021-1961 ______________________

Appeal from the United States District Court for the Eastern District of Virginia in No. 1:20-cv-01245-AJT- MSN, Judge Anthony J. Trenga.

-------------------------------------------------

DONALD L. BAKER, Plaintiff-Appellant

v.

GINA M. RAIMONDO, SECRETARY OF COMMERCE, ANDREW I. FAILE, ACTING Case: 21-1961 Document: 37 Page: 2 Filed: 06/13/2022

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COMMISSIONER FOR PATENTS, U.S. PATENT AND TRADEMARK OFFICE (USPTO), KATHERINE K. VIDAL, UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR OF THE UNITED STATES PATENT AND TRADEMARK OFFICE, ROBIN O. EVANS, DIRECTOR, TC 2800, USPTO, ELGIN ENAD, SUPERVISORY PE, ART UNIT 2837, USPTO, DAVID S. WARREN, PE, ART UNIT 2837, USPTO, MARLON T. FLETCHER, PE, ART UNIT 2837, USPTO, DANIEL SWERDLOW, ART UNIT 3649, USPTO, Defendants-Appellees

UNKNOWN EMPLOYEES OF THE DEPARTMENT OF COMMERCE AND USPTO, Defendant ______________________

2021-2116 ______________________

Appeal from the United States District Court for the Eastern District of Virginia in No. 1:20-cv-01367-CMH- MSN, Senior Judge Claude M. Hilton. ______________________

Decided: June 13, 2022 ______________________

DONALD L. BAKER, Tulsa, OK, pro se.

MATTHEW JAMES MEZGER, Office of the United States Attorney for the Eastern District of Virginia, United States Department of Justice, Alexandria, VA, for defendants-ap- pellees. Also represented by JESSICA D. ABER. ______________________ Case: 21-1961 Document: 37 Page: 3 Filed: 06/13/2022

BAKER v. RAIMONDO 3

PER CURIAM. Donald L. Baker appeals from two judgments of the United States District Court for the Eastern District of Vir- ginia dismissing two complaints filed by Dr. Baker for lack of subject matter jurisdiction. For the reasons below, we affirm both judgments. BACKGROUND Dr. Baker represented himself before the U.S. Patent and Trademark Office (USPTO) in the prosecution of the four patent applications at issue in this appeal. SAppx. 11. 1 In 2020, dissatisfied with the examination process, and before filing any administrative appeals, Dr. Baker filed two civil actions against the Secretary of Commerce, the Director of the (USPTO), and various unnamed USPTO employees in the Eastern District of Virginia, alleging that the patent examiners assigned to his applications were un- qualified, engaged in fraud, and acted in bad faith. SAppx. 1, 6–37. These are not the first cases Dr. Baker has pursued re- garding the USPTO’s determinations in these applications. In 2019, Dr. Baker sued the Director and other USPTO em- ployees in the Northern District of Oklahoma, similarly al- leging that the examiners assigned to his patent applications used “junk science,” falsified material facts, and generally acted in bad faith. See Baker v. Iancu, No. 19-cv-0289, 2019 WL 5395449, at *1 (N.D. Okla. Oct. 22, 2019), aff’d, 809 F. App’x 552, 553 (10th Cir. 2020).

1 Citations to “SAppx.” refer to the appendix at- tached to the Appellees’ brief in Appeal No. 21-1961. Be- cause the contents of the appendices in the two appeals at issue overlap significantly, we typically cite only to the ap- pendix in Appeal No. 21-1961. Where appropriate, we cite to the appendix attached to the Appellees’ brief in the com- panion case as “Appeal No. 21-2116 SAppx.” Case: 21-1961 Document: 37 Page: 4 Filed: 06/13/2022

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The Northern District of Oklahoma ultimately determined that it lacked subject matter jurisdiction for two reasons. Id. at *2. First, because Dr. Baker “admit[ted] that he did not file an appeal to the” Patent Trial and Appeal Board, he had thus had not exhausted his administrative reme- dies, as he was required to do before filing suit in district court. Id. And second, a patent applicant may only appeal final decisions of the Board to the Eastern District of Vir- ginia or the Federal Circuit. Id. Thus, the Northern Dis- trict of Oklahoma was “not the proper court [in which] to seek judicial review of the denial of a patent application.” Id. Accordingly, the district court dismissed the case with- out prejudice for lack of jurisdiction. Id. at *4. The Tenth Circuit affirmed, Baker, 809 F. App’x at 553, 2 and the Su- preme Court denied Dr. Baker’s petition for a writ of certi- orari, 141 S. Ct. 624 (2020). In October 2020, Dr. Baker filed the first of the com- plaints at issue in this appeal in the Eastern District of Virginia, a complaint effectively identical to that in the Ok- lahoma case. SAppx. 6–37. Invoking various criminal stat- utes including the Racketeer Influenced and Corrupt Organizations Act, Dr. Baker sought, among other things, to prevent the USPTO from “falsif[ying] . . . paperwork and . . . material facts in prior art,” “obstructi[ng] . . . his patent applications,” and using “junk engineering in patent exam- ination.” SAppx. 30. Dr. Baker listed only two patent ap- plications as being at issue, SAppx. 11, but attempted to

2 The district court indicated only that the case was “dismissed for lack of jurisdiction,” without clarifying whether the case was dismissed with or without prejudice. Baker, 2019 WL 5395449, at *4. On appeal, the Tenth Cir- cuit remanded “only for the [district] court to amend its judgment to reflect that the dismissal is without prejudice.” Baker, 809 F. App’x at 553. Accordingly, the Oklahoma case was ultimately dismissed without prejudice. Case: 21-1961 Document: 37 Page: 5 Filed: 06/13/2022

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reserve “any and all rights to raise and try” his other two pending applications, SAppx. 18. On November 4, 2020, Dr. Baker filed a notice with the district court indicating that the Supreme Court had de- nied certiorari in his Oklahoma case, which he asserted “remove[d] any bar to raising issues from” the Oklahoma case in the current Virginia case. SAppx. 39. The notice also informed the court that he planned to file another law- suit against the USPTO. SAppx. 39. Dr. Baker did so on November 12, 2020, filing a second lawsuit in the Eastern District of Virginia alleging almost identical claims against the USPTO regarding his two remaining patent applica- tions. See Baker v. Raimondo, No. 1:20-cv-1367, 2021 WL 1381560, at *1 (E.D. Va. Mar. 30, 2021); see also Appeal No. 21-2116 SAppx. 16 (stating this case is a “[r]efiling” of the Oklahoma case). The Government moved to dismiss Dr. Baker’s com- plaints in both cases for lack of subject matter jurisdiction. Because both lawsuits presented “the same allegations and rest[ed] on the same issues” as the Oklahoma lawsuit, the district court determined that the doctrine of collateral es- toppel precluded Dr. Baker from relitigating his failure to exhaust his administrative remedies. SAppx. 1–2; Appeal No. 21-2116 SAppx. 1–4. Because it determined it did not have subject matter jurisdiction in either case, the district court granted the Government’s motions to dismiss. SAppx. 2; Appeal No. 21-2116 SAppx. 4. Dr. Baker appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(1). DISCUSSION We review a district court’s dismissal of a complaint for lack of subject matter jurisdiction under the law of the re- gional circuit, here the Fourth Circuit. Toxgon Corp. v. BNFL, Inc., 312 F.3d 1379, 1380 (Fed. Cir. 2002). Under Fourth Circuit law, we review a district court’s dismissal Case: 21-1961 Document: 37 Page: 6 Filed: 06/13/2022

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for lack of subject matter jurisdiction de novo. Taylor v. Kellogg Brown & Root Servs., Inc., 658 F.3d 402, 408 (4th Cir. 2011). For the reasons below, we affirm the dis- trict court in both cases. On appeal, Dr. Baker argues the district court (1) “un- justly applied” collateral estoppel, Appellant’s Br. 3 1, and (2) erred in failing to address his reliance on various other sources of law, including his Bivens 4 claim and several pro- visions of the criminal code, id. at 2. We take each argu- ment in turn. I We begin with Dr. Baker’s argument that the district court inappropriately applied the doctrine of collateral es- toppel to the two cases at issue. Dr. Baker asserts that by applying collateral estoppel, the district court “put[] its own convenience above the public damages of government corruption.” Id. at 1. A Because the application of general collateral estoppel principles “is not a matter within the exclusive jurisdiction of this court, we must apply the law of the circuit in which the district court here sits, i.e., the Fourth Circuit.” Phar- macia & Upjohn Co. v. Mylan Pharms., Inc., 170 F.3d 1373, 1381 n.4 (Fed. Cir. 1999). We note that the Fourth Circuit has, in some circumstances, declined to apply collateral es- toppel where the judgment in a prior case is supported by

3 Citations to “Appellant’s Br.” refer to brief submit- ted by Dr. Baker in Appeal No. 21-1961. Because the con- tents of the briefs submitted by Dr. Baker in both appeals overlap significantly, we cite only to his brief in Appeal No. 21-1961. 4 Bivens v. Six Unknown Named Agents of Fed. Bu- reau of Narcotics, 403 U.S. 388 (1971). Case: 21-1961 Document: 37 Page: 7 Filed: 06/13/2022

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independently sufficient alternative holdings. See, e.g., In re Microsoft Corp. Antitrust Litig., 355 F.3d 322, 328 (4th Cir. 2004). As the Fourth Circuit has explained, “where the court in the prior suit has determined two is- sues, either of which could independently support the re- sult, then neither determination is considered essential to the judgment. Thus, collateral estoppel will not obtain as to either determination.” Id. (quoting Ritter v. Mount St. Mary’s Coll., 814 F.2d 986, 993 (4th Cir. 1987)); see also Intell. Ventures I LLC v. Cap. One Fin. Corp., 937 F.3d 1359, 1372–76 (Fed. Cir. 2019) (discussing Fourth Circuit law on this issue). In this case, the Oklahoma court determined that it lacked subject matter jurisdiction for two reasons—both because Dr. Baker did not exhaust his administrative rem- edies before the USPTO and because a patent applicant may only appeal final decisions of the Patent Trial and Ap- peal Board to the Eastern District of Virginia or the Fed- eral Circuit. Baker, 2019 WL 5395449, at *2 (“Plaintiff’s claims are subject to dismissal for failure to exhaust ad- ministrative remedies and for being filed in a court without jurisdiction over his claims.”). In other words, the Okla- homa court “determined two issues, either of which could independently support the result” of dismissal, Microsoft, 355 F.3d at 328, and thus Fourth Circuit law indicates that collateral estoppel might not apply to either issue. B Setting aside collateral estoppel, and without resolving that issue, we nonetheless affirm the district court’s dis- missal of both cases because it properly determined that it did not have jurisdiction. Specifically, because Dr. Baker did not exhaust his administrative remedies at the USPTO before filing suit, the district court did not have subject matter jurisdiction over his claims. A patent applicant who remains dissatisfied with the final decision of the Patent Trial and Appeal Board has two Case: 21-1961 Document: 37 Page: 8 Filed: 06/13/2022

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primary options to appeal. He may appeal directly to the Federal Circuit. 35 U.S.C. § 141. Alternatively, he may sue the USPTO Director in the Eastern District of Virginia. 35 U.S.C. § 145. To pursue either option, however, an ap- pellant must have received a “final decision” from the Pa- tent Trial and Appeal Board; that is, he must exhaust his administrative remedies before the USPTO. See § 141 (re- quiring a “final decision” from “an appeal to the Patent Trial and Appeal Board”); § 145 (requiring a decision from an appeal to the Patent Trial and Appeal Board); see also Pregis Corp. v. Kappos, 700 F.3d 1348, 1358 (Fed. Cir. 2012) (“The Patent Act expressly provides an intricate scheme for administrative and judicial review of [US]PTO patentability determinations[.]”). When a statute requires that an appellant exhaust his administrative remedies, a district court cannot consider his case until those remedies are exhausted. See, e.g., McCarthy v. Madigan, 503 U.S. 140, 144–45 (1992). In other words, without a final deci- sion from the Patent Trial and Appeal Board, courts are not allowed to consider claims regarding the USPTO’s pa- tentability determinations. In this case, Dr. Baker filed both Virginia lawsuits be- fore pursuing an administrative appeal to the Patent Trial and Appeal Board. As a result, the Patent Trial and Appeal Board has not issued a “final decision.” And without a final agency decision, the Eastern District of Virginia does not have subject matter jurisdiction to consider Dr. Baker’s claims. See Panos v. Dir. of the U.S. Pat. and Trademark Off., No. 3:14-cv-698, 2015 WL 5786826, at *7–9 (E.D. Va. Sept. 30, 2015) (finding no subject matter jurisdiction where appellant had filed an appeal brief to the Patent Trial and Appeal Board but ultimately abandoned that ap- peal, because there was no “final decision by the Board” for the court to review). The district court therefore does not have subject matter jurisdiction over Dr. Baker’s claims. For these reasons, we affirm the district court’s dismissal of Dr. Baker’s cases for lack of subject matter jurisdiction. Case: 21-1961 Document: 37 Page: 9 Filed: 06/13/2022

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II We turn next to Dr. Baker’s argument that the district court erred by not addressing the various other sources of law he raises in his complaint. Appellant’s Br. 2. Specifi- cally, Dr. Baker argues the district court should have con- sidered his claims brought under: (1) Bivens; (2) 18 U.S.C. §§ 242, 1001, and 1519; and (3) 5 C.F.R. § 2635.101. As an initial matter, we note that Dr. Baker did not re- spond to the Government’s arguments regarding these is- sues before the district court. In its motions to dismiss, the Government argued at length that Dr. Baker could not sus- tain a claim under these various sources of law. See SAppx. 46–56; see also SAppx. 44 (pursuant to the court’s local rules, Government providing explicit notice that “fail- ure to respond” to the Government’s motion “may result in the relief requested in this motion . . . being granted”). Dr. Baker submitted a response to the Government’s mo- tion but did not address the Government’s arguments re- garding these sources of law. See SAppx. 57–61. Accordingly, Dr. Baker waived his arguments regarding these issues. See, e.g., Fresenius USA, Inc. v. Baxter Int’l, Inc., 582 F.3d 1288, 1296 (Fed. Cir. 2009) (“If a party fails to raise an argument before the trial court, or presents only a skeletal or undeveloped argument to the trial court, we may deem that argument waived on appeal[.]”). Neverthe- less, considering the leniency granted to pro se plaintiffs like Dr. Baker, we will consider the merits of his argument that the district court erred by not considering these sources of law. See McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1356 (Fed. Cir. 2007) (we may grant pro se litigants “leeway on procedural matters”). We consider each argu- ment in turn. First, Dr. Baker argues the district court erred by not addressing his Bivens claim. Appellant’s Br. 2. “In Bivens, the Supreme Court held that a party may, under certain circumstances, bring an action for violations of Case: 21-1961 Document: 37 Page: 10 Filed: 06/13/2022

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constitutional rights against Government officials in their individual capacities.” Brown v. United States, 105 F.3d 621, 624 (Fed. Cir. 1997). Here, Dr. Baker sued the Secre- tary of Commerce and the USPTO Director in their official capacities. See SAppx. 1 (noting the complaint was filed against defendants in their official capacities); see also SAppx. 6–8, 29–32, 34 (including in list of defendants the “Secretary of Commerce” and “Director of USPTO,” among other official titles). A Bivens action, however, may not be brought against a federal employee in his official capacity. Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002) (“[A] Bivens action does not lie against either agencies or officials in their official capacity.”). Accordingly, the court did not err in declining to consider Dr. Baker’s Bivens claim. Second, Dr. Baker argues the district court should have discussed his assertion of three criminal statutes— 18 U.S.C. §§ 242, 1001, and 1519. Appellant’s Br. 2. None of these criminal statutes, however, provides Dr. Baker a cause of action. In other words, Dr. Baker may not file a civil case for the alleged violation of a criminal statute. See, e.g., Cort v. Ash, 422 U.S. 66, 79–80 (1975) (a “bare criminal statute,” with no indication of civil enforcement, does not give rise to a private cause of action). We thus find no error in the district court declining to consider these claims. Finally, Dr. Baker argues the trial court erred by not considering 5 C.F.R. § 2635.101. Appellant’s Br. 2. This federal regulation outlines the ethical obligations that must be upheld by employees of the Executive Branch. The same subpart of those regulations, however, specifically states that it does not create a private cause of action, i.e., Dr. Baker cannot rely on it to pursue his case against the Government. See § 2635.106(c) (“A violation of this part . . . does not create any right or benefit . . . enforceable at law by any person against the United States, its agencies, its officers or employees, or any other person.”). Thus, the court did not err in declining to consider this claim. Case: 21-1961 Document: 37 Page: 11 Filed: 06/13/2022

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Accordingly, we determine that the Eastern District of Virginia did not err in declining to consider these various sources of law presented by Dr. Baker. We have considered Dr. Baker’s remaining arguments and find them unpersua- sive. CONCLUSION For the above reasons, we affirm the judgments of the Eastern District of Virginia dismissing Dr. Baker’s com- plaints for lack of subject matter jurisdiction. AFFIRMED COSTS No costs.