COLLEEN KOLLAR-KOTELLY, District Judge.
Petitioner John P. Halvonik ("Halvonik"), an attorney proceeding pro se,
Congress vested the USPTO with the statutory authority to promulgate regulations "govern[ing] the recognition and conduct of agents, attorneys, or other persons representing applicants or other parties before the Office." 35 U.S.C. § 2(b)(2)(D). Pursuant to that authority, the USPTO has enacted a Code of Professional Responsibility (the "Code"), 37 C.F.R. §§ 10.20 et seq., which includes a number of Disciplinary Rules that are "mandatory in character and state the minimum level of conduct below which no practitioner [before the USPTO] can fall without being subjected to disciplinary action." Id. § 10.20(b). If an attorney fails to comply with the Code, the USPTO has the authority, upon conducting an appropriate hearing, to "suspend or exclude, either generally or in any particular case, [the attorney] from further practice before the Patent and Trademark Office." 35 U.S.C. § 32.
Halvonik is an attorney and was—prior to the resolution of the disciplinary proceedings at issue in this action—registered to practice and represent others in the prosecution of patent applications before the USPTO. On June 28, 2006, having received client complaints directed towards Halvonik, the USPTO's Office of Enrollment and Discipline (the "OED") initiated disciplinary proceedings against Halvonik, charging him with various counts of professional
A two-day hearing was held before Administrative Law Judge Barbara A. Gunning (the "ALJ") on September 19 and 20, 2007, which Halvonik attended representing himself. See Hr'g Tr. (Sept. 19, 2007), at AR12-357; Hr'g Tr. (Sept. 20, 2007), at AR358-628. On July 31, 2008, after affording the parties an opportunity to submit post-hearing briefing, the ALJ issued a thorough forty-four page decision (the "Initial Decision"). See Initial Decision (July 31, 2008), at AR629-673. Finding that Halvonik had committed multiple willful and egregious acts of professional misconduct in violation of the Code—including, but not limited to, commingling client and personal funds, failing to promptly refund client fees that had not been earned, and neglecting to prosecute client matters in a timely manner—the ALJ concluded that excluding Halvonik from practice before the USPTO for a period of five years was the appropriate sanction. Id. at AR640-72.
By regulation, a party aggrieved by an administrative law judge's initial suspension or exclusion order may appeal that decision to the Director of the USPTO (the "Director"):
37 C.F.R. § 10.155(a) (emphasis added).
Consistent with this procedural framework, the ALJ's Initial Decision in this case concluded with the following notice, appearing in bold text:
Initial Decision (July 31, 2008), at AR672 (emphasis altered). Halvonik filed a Notice of Appeal within the designated thirty-day period, a document which stated, in one sentence: "Respondent hereby appeals the final decision of the ALJ in the above referenced case." Notice of Appeal (Sept. 2, 2008), at AR674. Halvonik neither identified exceptions to the ALJ's Initial Decision nor supplied the reasons for his appeal.
Subsequently, the OED filed a brief requesting that the ALJ's Initial Decision be affirmed. See OED's Reply to Resp't's Appeal (Oct. 1, 2008), at AR675-696. The OED argued that the Initial Decision should be affirmed on substantive grounds because it was supported by clear and convincing evidence, and on procedural grounds because Halvonik failed to identify any reversible error in his Notice of Appeal. Id. Halvonik responded on November 10, 2008. See Response to OED's Reply (Nov. 10, 2008), at AR697-714.
On January 21, 2009, the Director, through his designee, the General Counsel for the USPTO, issued a decision affirming the ALJ's Initial Decision in its entirety (the "Final Decision") on purely procedural grounds. See Final Decision (Jan. 21, 2009), at AR715-718. Specifically, the Director concluded that, although timely, Halvonik's appeal "failed to satisfy the regulatory requirements for appeal"— namely, in that Halvonik failed to include exceptions to the ALJ's decision below as required by 37 C.F.R. § 10.155(a). Final Decision (Jan. 21, 2009), at AR717. In so finding, the Director emphasized that the "[t]he requirement that an appeal include the exceptions on which the appellant relies reflects the public interest in the prompt resolution of disciplinary matters." Id.
Halvonik commenced this action on February 19, 2009 pursuant to 35 U.S.C. § 32 and Local Rule LCvR 83.7, seeking review of the decision to exclude him from practicing as an attorney before the USPTO for a period of five years. See Petition for Review (Feb. 19, 2009), Docket No. [1].
On March 9, 2010, Kappos filed a Motion for Judgment of Affirmance, the thrust of which is that, in issuing the Final Decision, the Director properly concluded that Halvonik failed to comply with the procedural requirements for an administrative appeal. See Resp't's Mot. for J. of Affirmance, Docket No. [27]. On April 19, 2010, Halvonik filed an opposition. See Pet'r's Opp'n to Resp't's Mot. for J. of Affirmance ("Pet'r's Opp'n"), Docket No. [34]. Kappos elected not to file a reply. The motion is therefore fully briefed and ripe for adjudication.
Separately, on April 21, 2010, Halvonik filed a Motion for Judgment of Reversal. See Pet'r's Mot. for J. of Reversal ("Pet'r's Mem."), Docket No. [33]. While this action is ostensibly a challenge to the Director's Final Decision, see Petition for Review (Feb. 19, 2009), at 1, Halvonik's arguments in support of reversal are directed towards alleged errors in the ALJ's
The District Court for the District of Columbia serves as the exclusive forum for individuals petitioning for review of a decision suspending or excluding them from practice before the USPTO. Franchi v. Manbeck, 972 F.2d 1283, 1288 (Fed. Cir.1992). By Local Rule,
Presently before the Court are Kappos' [27] Motion for Judgment of Affirmance and Halvonik's [33] Motion for Judgment of Reversal. The Court addresses each motion in turn.
Pursuant to the authority vested in it by Congress, the USPTO established a specific procedural framework governing administrative appeals from an administrative law judge's initial suspension or exclusion decision. At all times relevant to this action, that procedural framework included the clear and unequivocal requirement that an administrative appeal must be made "within thirty (30) days from the date of the initial decision" and must "include exceptions to the decisions of the administrative law judge and supporting reasons for those exceptions." 37 C.F.R. § 10.155(a). Indeed, Halvonik was expressly cautioned that any appeal to the ALJ's Initial Decision
The freedom of agencies to fashion their own procedural rules has been described as "the very basic tenet of administrative law," Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 544, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978), and agencies therefore retain "broad discretion" in determining and administering their own procedures, Turner v. Merit Sys. Prot. Bd., 806 F.2d 241, 245 (Fed.Cir.1986); accord Fried v. Hinson, 78 F.3d 688, 690 (D.C.Cir.1996). Consistent with these principles, an agency may generally exercise its discretion to refuse to consider a party's objections where those objections are not made at the time and in the manner prescribed by the agency's procedural rules. See, e.g., Mittal Steel Point Lisas Ltd. v. United States, 548 F.3d 1375, 1383-84 (Fed.Cir.2008) (party abandoned its arguments by failing to raise them at the appropriate time before the agency); Deseado Int'l, Ltd. v. United States, 600 F.3d 1377, 1380-81 (Fed.Cir.2010) (agency did not err by refusing to consider party's contention on the basis that it had not participated in prior administrative proceedings). Where, as here, a party fails to identify the claimed errors in an administrative law judge's decision in a meaningful manner, the agency does not err by summarily dismissing an administrative appeal. Lozada v. Immigration & Naturalization Serv., 857 F.2d 10, 12-13 (1st Cir.1988); see also Kersey v. Undersecretary of Commerce for Intellectual Prop., No. 02 Civ. 2331 (GK), 2005 WL 486144, at *7 (D.D.C. Jan. 31, 2005) (party could not argue that the findings of administrative law judge were erroneous where it failed to raise those specific issues on administrative appeal), aff'd, 221 Fed.Appx. 997 (Fed.Cir. 2007) (per curiam). In this case, the Director acted well within the scope of his discretion in affirming the ALJ's Initial Decision based upon Halvonik's failure to comply with the requirements for an administrative appeal.
Halvonik's arguments in opposition do not warrant a different result. Halvonik does not contest (nor could he) that he failed to articulate exceptions to the ALJ's Initial Decision in requesting an administrative appeal. Nor does he claim ignorance of the applicable rules. Rather, in opposition to Kappos' motion, Halvonik poses the following question:
37 C.F.R. § 10.155(a). If the administrative appellant was free to forego articulating "exceptions . . . and supporting reasons for those exceptions," id., the administrative appellee would be wholly incapable of crafting a meaningful response. Nor would the Director be adequately apprised of the basis for the appeal. Second, the regulation is structured to ensure that administrative appeals are fully briefed within a sixty-day period: an appeal must be filed within thirty days of the initial decision of the administrative law judge and a response must be filed within thirty days thereafter, at which point the record is transmitted to the Director for disposition.
For all these reasons, the Court concludes that the Director did not err by concluding that Halvonik failed to satisfy the requirements for an administrative appeal, and by affirming the ALJ's Initial Decision on that basis. Accordingly, the Court shall GRANT Kappos' [27] Motion for Judgment of Affirmance.
Halvonik's Motion for Judgment of Reversal is without merit. Halvonik attests that he "does not wish to contest the factual findings below, but rather [the] legal conclusion based on fact, that [he] violated a fiduciary duty" by commingling client and personal funds in a single account.
The Court has considered the remaining arguments tendered by the parties and has concluded that they are without merit. Therefore, and for the reasons stated above, the Court shall GRANT Kappos' [27] Motion for Judgment of Affirmance, DENY Halvonik's [33] Motion for Judgment of Reversal, and DISMISS this action in its entirety. An appropriate Order accompanies this Memorandum Opinion.