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Mackay v. Comissioner of Patents and Trademarks

October 18, 1999


Before Lourie, Rader, and Bryson, Circuit Judges.

The opinion of the court was delivered by: Per Curiam

NOTE: Pursuant to Fed. Cir. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.

Donald Mackay, Jr. appeals an August 3, 1998 order of the United States District Court for the District of Columbia dismissing his claim for lack of jurisdiction. Because Mr. Mackay has not shown that his claim falls within the district court's jurisdiction, this court affirms.


Mr. Mackay claims to have invented a portable electric tidal generator (the Invention). On October 30, 1996, Mr. Mackay filed a patent application with the United States Patent and Trademark Office (PTO). On January 17, 1997, the PTO notified Mr. Mackay that his patent application was incomplete and thus could not be accorded a filing date. Mr. Mackay did not submit the required materials. The PTO therefore terminated the application.

Mr. Mackay filed a brief complaint on January 18, 1998, in the district court alleging that he filed a patent application covering his invention, that he received the notice of termination, that he discussed his application with an examiner at the PTO, and that the PTO "willfully negated the patent." Complaint for Appellant at 1. The complaint cited no particular cause of action, but sought relief of two billion dollars from the PTO. The district court assumed that Mr. Mackay was seeking relief under either the Federal Tort Claims Act (FTCA) or the Administrative Procedure Act (APA), but concluded that it had no jurisdiction to hear the claims. Mr. Mackay appealed the district court's dismissal of his case to the United States Court of Appeals for the District of Columbia (the D.C. Circuit). The D.C. Circuit transferred the case to this court because this court has exclusive jurisdiction to hear claims relating to practice before the PTO. See 28 U.S.C. § 1295(a)(1) (1994).


This court reviews de novo a district court's determination that it lacks jurisdiction to hear a case. Kanemoto v. Reno, 41 F.3d 641, 643 (Fed. Cir. 1994). Mr. Mackay's complaint filed in the district court pointed to no specific cause of action under which he sought relief. Therefore, the district court presumed that either the FTCA or the APA would be the likely sources of jurisdiction for Mr. Mackay's complaint.

As the district court discussed in its opinion, jurisdiction could not be found for a FTCA claim because Mr. Mackay did not allege that he exhausted his administrative remedies before filing his action in the district court. This court agrees. Although Mr. Mackay indicates in his complaint that he discussed his patent application with an examiner at the PTO, he makes no allegation that he exhausted the appropriate administrative remedies available to him. In particular, Mr. Mackay did not file a petition with the Commissioner to contest the PTO's failure to assign a priority date pursuant to 37 C.F.R. § 1.53(e)(2) (1997). Because Mr. Mackay did not pursue administrative remedies before filing his complaint in the district court, the district court has no jurisdiction under the FTCA. See 28 U.S.C. § 2675(a) (1994).

Similarly, the district court does not have jurisdiction to hear Mr. Mackay's claim for monetary damages under the APA. The APA waives the sovereign immunity of the United States only for "[a]n action in a court of the United States seeking relief other than monetary damages." See 5 U.S.C. § 702 (1994); James v. Caldera, 159 F.3d 573, 578 (Fed. Cir. 1998); National Ctr. for Mfg. Sciences v. United States, 114 F.3d 196, 199 (Fed. Cir. 1997). Therefore, Mr. Mackay's request for monetary damages in the amount of two billion dollars*fn1* precludes the district court from granting the relief he seeks under the APA.

Mr. Mackay seeks reinstatement of his "patent rights." Although the APA authorizes suits challenging the Commissioner's actions, such suits require that the plaintiff first exhaust his administrative remedies. Mr. Mackay failed to petition the Commissioner to challenge the PTO's failure to accord his application a filing date within the two-month time period prescribed by 37 C.F.R. § 1.53(e)(2). It is an "established principle that where a statute or regulation prescribes a time period for seeking administrative relief and the claimant fails to pursue that remedy within the time specified, his right to judicial relief (in the absence of unusual circumstances) is foreclosed." Barrington Manor Apartments Corp. v. United States, 392 F.2d 224, 228 (Ct. Cl. 1968). Thus, the district court correctly held that it lacked jurisdiction over this claim.

Unfortunately, neither Mr. Mackay's informal brief nor his memorandum in lieu of oral argument provide any information, argumentation, or allegation that disputes the district court's Conclusion regarding jurisdiction under the FTCA or the APA. Similarly, these documents do not point to any other basis of jurisdiction for the district court to hear his case.

Because we find that the district court does not have jurisdiction over Mr. ...

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