Baker v. Iancu, et al.

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
DONALD L. BAKER,

Plaintiff - Appellant,

v.

ANDREI IANCU, Director USPTO;
DREW HIRSHFELD, Comm for Patents,
USPTO; ROBIN O. EVANS, Dir, Tech
Center 2800, USPTO; ELVIN G. ENAD,
Supervisory Patent Examiner, Art Unit
2837, USPTO; MARLON T. FLETCHER,
Primary Patent Examiner, Art Unit 2837,
USPTO,

Defendants - Appellees,

and

DANIEL SWERDLOW,

Defendant.

No. 19-5100
(D.C. No. 4:19-CV-00289-CVE-FHM)
(N.D. Okla.)
_________________________________
ORDER AND JUDGMENT
*

_________________________________
Before BRISCOE, MATHESON, and EID, Circuit Judges.
_________________________________

*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit

June 17, 2020

Christopher M. Wolpert
Clerk of Court
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Donald L. Baker, pro se, appeals the district court’s order dismissing his
complaint for lack of subject matter jurisdiction. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm. We remand for the court to amend the judgment to
reflect a dismissal without prejudice.
I. BACKGROUND
Mr. Baker filed suit in the United States District Court for the Northern
District of Oklahoma against five employees of the United States Patent and
Trademark Office (“USPTO”) for their alleged fraud and harassment in connection
with the denial of his patent application. The district court dismissed the case for
lack of subject matter jurisdiction
The court first explained that an applicant who wishes to challenge the denial
of a patent claim must first do so through an appeal to the Patent Trial and Appeal
Board (“PTAB”). See 35 U.S.C. § 134(a) (“An applicant for a patent, any of whose
claims has been twice rejected, may appeal from the decision of the primary
examiner to the [PTAB]. . . .”). An applicant who is dissatisfied with the PTAB’s
decision may then appeal to the United States Court of Appeals for the Federal
Circuit. See id. § 141(a) (“An applicant who is dissatisfied with the final decision in
an appeal to the [PTAB] . . . may appeal the . . . decision to the United States Court
of Appeals for the Federal Circuit.”). An applicant who has not taken an appeal to
the Federal Circuit may alternatively bring a “civil action against the Director [of the
USPTO] in the United States District Court for the Eastern District of Virginia.” Id.
§ 145.
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The court further explained that it lacked subject matter jurisdiction over
Mr. Baker’s alleged tort claims because he failed to give the USPTO the required
notice under the Federal Tort Claims Act prior to filing suit. See 28 U.S.C. § 2675(a)
(A party cannot file suit on “a claim against the United States for money damages for
injury or loss of property . . . caused by the negligent or wrongful act or omission of
any employee of the Government . . . unless the claimant . . . first present[s] the
claim to the appropriate Federal agency . . . .”).
II. DISCUSSION
In his briefs to this court, Mr. Baker has not addressed any of the grounds for
the district court’s dismissal as required under Federal Rule of Appellate Procedure
28(a)(8)(A). “Although a pro se litigant’s pleadings are to be construed liberally and
held to a less stringent standard than formal pleadings drafted by lawyers, this court
has repeatedly insisted that pro se parties follow the same rules of procedure that
govern other litigants.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005) (brackets, citation, and quotations omitted). Where, as here, issues
“are not adequately briefed,” they “will be deemed waived.” Id. (brackets and
quotations omitted).
III. CONCLUSION
We affirm the judgment of the district court and remand only for the court to
amend its judgment to reflect that the dismissal is without prejudice. “A
longstanding line of cases from this circuit holds that where the district court
dismisses an action for lack of jurisdiction, as it did here, the dismissal must be
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without prejudice.” Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir.
2006).
Entered for the Court

Scott M. Matheson, Jr.
Circuit Judge
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