United States District Court, E.D. Virginia, Alexandria Division
T. S. Ellis, III United States District Judge
Petitioner, a Missouri attorney, was suspended indefinitely from Missouri practice, with the ability to seek reinstatement after one year, by the Supreme Court of Missouri for violating the Missouri Rules of Professional Conduct. Based on the Supreme Court of Missouri's decision to suspend petitioner, the United States Patent and Trademark Office ("PTO"), before which petitioner was also admitted to practice, issued an Order imposing identical reciprocal discipline. Here, petitioner seeks judicial review of the PTO's imposition of reciprocal discipline pursuant to 35 U.S.C. § 32.
As the administrative record has been submitted and the parties have fully briefed the matter, it is now ripe for disposition. For the reasons that follow, the petition must be denied.
Before setting forth the pertinent facts derived from the administrative record, it is useful to describe briefly the relevant statutory and regulatory context. Under 35 U.S.C. § 2(b)(2)(D), the PTO may "govern the recognition and conduct of agents, attorneys, or other persons representing applicants or other parties before the office." Pursuant to this statutory authority, the PTO has enacted its own Rules of Professional Conduct governing the conduct of all practitioners engaged in practice before the PTO. See 37 C.F.R. §§ 11.101-.901. If a registered PTO attorney fails to comply with his professional obligations, the PTO has the authority to suspend or exclude the practitioner from further practice before the PTO. 35 U.S.C. § 32; 37 C.F.R. § 11.19. Pursuant to this authority, the PTO has identified various grounds for discipline,  including reciprocal discipline brought against a practitioner who has been disciplined or disqualified from practice by another jurisdiction, such as a state bar. 37 C.F.R. §11.24.
When the Director of the PTO's Office of Enrollment and Discipline ("OED") learns that a PTO practitioner has been disciplined in another jurisdiction, he "shall ... file with the [PTO] Director a complaint ... against the practitioner predicated upon the" discipline received elsewhere. Id. § 11.24(a). The PTO Director then issues a notice to the practitioner and the OED Director containing (i) "a copy of the record or order" regarding the discipline in the other jurisdiction, (ii) the OED Director's complaint, and (iii) "an order directing the practitioner to file a response" to the complaint that identifies any "genuine issue of material fact" within 40 days. Id. § 11.24(b). Thereafter, the PTO Director must adjudicate the complaint solely on the record, and "shall impose the identical public censure, public reprimand, probation, disbarment, suspension or disciplinary disqualification unless the practitioner clearly and convincingly demonstrates" that a different sanction is warranted based on one of the following factors, derived from the Supreme Court's decision in Selling v. Radford, 243 U.S. 46, 50-51 (1917):
(i) "[t]he procedure elsewhere was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process";
(ii) "[t]here was such infirmity of proof establishing the conduct as to give rise to the clear conviction that the [PTO] could not, consistently with its duty, accept as final the conclusion on that subject";
(iii) "[t]he imposition of the same public censure, public, reprimand, probation, disbarment, suspicion or disciplinary disqualification by the [PTO] would result in grave injustice"; or
(iv) "[a]ny argument that the practitioner was not publicly censured, publicly reprimanded, placed on probation, disbarred, suspended or disciplinarily disqualified."
37 C.F.R. § 11.24(d)(1). If the practitioner meets this heavy burden, the PTO Director must refer the complaint "to a hearing officer for a formal hearing." 37 C.F.R. § 11.25(d)(2). Otherwise, the PTO Director must issue a final order imposing reciprocal discipline. See Id. § 11.24(d)(2). If at the conclusion of administrative proceedings, the PTO decides to suspend or exclude practitioners from appearing before the PTO, the PTO must issue an order stating the "reasons for any such suspension or exclusion." 35 U.S.C. § 32. The suspended or excluded party may then seek judicial review by filing a petition for review in "[t]he United States District Court for the Eastern District of Virginia, under such conditions and upon such proceedings as by its rules determines." Id. Pursuant to this statutory authority, the Eastern District of Virginia has issued Local Rule 83.5, E.D. Va. Loc. Civ. R., to govern petitions for judicial review pursuant to 35 U.S.C. § 32. Local Rule 83.5 provides, inter alia, that the administrative record is the "sole basis for review" of a PTO decision to exclude or suspend an attorney from practice before the PTO.
The pertinent facts from the administrative record, which provides the sole basis for review, may be succinctly stated.
Petitioner Naren Chaganti is an attorney who prior to October 2014, was licensed to practice law in Missouri, and prior to August 2015, was licensed to practice law before the PTO. A547-48. Petitioner had a solo law practice in Town and Country, Missouri, and in addition to his law practice, petitioner was the sole officer and shareholder of Whispering Oaks RCF Management Company, Inc. ("Whispering Oaks"), a private corporation that operates a residential care facility for mentally disabled individuals in Wildwood, Missouri.
In 2009, Lafayne Manse, an employee of Ameren UE, a utility company, visited Whispering Oaks to read the electric meters. During his visit, Manse informed petitioner that Manse had a side business, Manse Heating and Cooling, which provided repair services for heating and air conditioning units. After learning this information, petitioner, on behalf of Whispering Oaks, entered into an agreement with Manse for service on air conditioning units at Whispering Oaks. A509, A528-29.
Thereafter, a dispute arose from this agreement between Manse and Whispering Oaks. And on July 30, 2009, Whispering Oaks filed a six-count civil complaint against Manse Heating and Cooling and Manse individually in the Circuit Court for St. Louis County, Missouri. Petitioner was not listed as a party to the action in either the caption or body of that complaint; rather, petitioner signed the complaint as "Attorney for Plaintiff, " listing his Missouri Bar number. The docket sheet also reflects Whispering Oaks as the only party plaintiff and petitioner as the attorney for Whispering Oaks. A217-24, 279. Manse and his company retained Thomas DeVoto as their attorney.
At some point during this litigation, petitioner asked DeVoto for permission to speak privately with Manse to discuss the possibility of settlement, but DeVoto refused this request. A279, 508, 529, 549-50. The litigation continued for approximately three years until in September 2012, the state court dismissed Whispering Oaks' civil complaint without prejudice for failure to prosecute. Thereafter, Whispering Oaks filed a motion to set aside the dismissal, and on October 31, 2012, the state court orally denied that motion. That same day, according to DeVoto, petitioner again asked for DeVoto's permission to speak with Manse privately. DeVoto indicated that he would ask Manse whether he was interested in speaking directly to petitioner. In response, petitioner told DeVoto that petitioner was free to contact Manse because the civil complaint had been dismissed. DeVoto then informed petitioner that DeVoto still represented Manse with respect to Manse's dispute with Whispering Oaks, and if petitioner attempted to contact Manse, DeVoto would consider it a violation of the Missouri Rules of Professional Conduct and would file an appropriate complaint with the Missouri State Bar. A408-09, 510-12, 518-19.
The next day, November 1, 2012, petitioner mailed directly to Manse a letter bearing petitioner's law firm letterhead. In the letter, petitioner noted that had been unable to contact Manse "until the suit was dismissed" because Manse's "attorney refused to permit direct discussion between [petitioner and Manse] to settle the suit." A225. Petitioner further explained (i) that he intended to "refile the claim" against Manse, and that in the new complaint, he would "add Ameren UE, " and (ii) "urge[d]" Manse "to discuss settlement out-of-court, " stating that Manse "should think seriously about whether it [was] in [his] best interests to go to court again or to close this matter at this time." Id. After ...