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Piccone v. United States Patent and Trademark Office

United States District Court, E.D. Virginia, Alexandria Division

November 13, 2018

LOUIS A. PICCONE, Petitioner,


          Leonie M. Brinkema, United States District Judge

         Louis A. Piccone ("Piccone"), acting pro se, filed this Petition[1] to review a decision of the United States Patent and Trademark Office ("PTO") suspending Piccone's license to practice before the PTO for a period of three years. Piccone asks the Court to vacate the PTO's decision as arbitrary or capricious, an abuse of discretion, or not in accordance with law. He also seeks declaratory relief as well as damages against unnamed PTO employees[2] under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). The Petition has been fully briefed and is now ripe for decision, and the Court finds that oral argument would not aid the decisional process. For the reasons that follow, the Petition will be dismissed.

         I. BACKGROUND

         Piccone is an attorney who in 1989 was admitted to practice in Pennsylvania. A4821.[3] As relevant here, on three occasions Piccone has been administratively suspended from the practice of law by the Supreme Court of Pennsylvania: from September 1 to October 11, 2011, for failure to comply with continuing legal education ("CLE") requirements; from October 19 to December 21, 2012, for failure to pay the annual bar membership fee; and from September 30, 2013 to August 13, 2014, again for noncompliance with CLE requirements. A3174-75.

         Piccone registered to practice before the PTO in August 1997. A3171-72. On December 10, 2014, the Director of the PTO's Office of Enrollment and Discipline ("OED") issued a disciplinary complaint charging Piccone with nine counts of professional misconduct.[4]A84-108. Count I involved Piccone's alleged unauthorized practice of law before the PTO in connection with a trademark application. A87-89. Counts II through V alleged that Piccone had engaged in the unauthorized practice of law in several federal district courts across the country. A89-96.[5] Finally, Counts VI through IX alleged that Piccone had engaged in "disreputable or gross conduct," acted in a fraudulent or dishonest manner, and had neglected his clients' interests. A97-108. The OED Director's complaint requested that Piccone be suspended or excluded from practicing before the PTO. A85, A108.

         The Chief Administrative Law Judge of the United States Environmental Protection Agency (the "ALJ") was assigned to adjudicate the disciplinary proceeding. A1-2. In just under nine months, Piccone filed 35 motions, "including numerous motions to dismiss, motions for summary judgment, and motions to reconsider." A2. The ALJ held a two-day hearing in mid-October 2015 and heard live testimony from Piccone and a PTO staff attorney as well as deposition testimony from Piccone's business associate, two of his former clients, and an officer of the Massachusetts Board of Bar Examiners. See A3. The parties also submitted post-hearing briefs for the ALJ's consideration. A3-4.

         The ALJ's 69-page Initial Decision found the following to have been established by clear and convincing evidence: First, Piccone engaged in the unauthorized practice of law before the PTO by acting as attorney of record and drafting a series of documents on behalf of Lawless America Association ("Lawless"), to be filed by Lawless's president, while Piccone was suspended from the Pennsylvania bar. A15-21. Second, in a series of lawsuits filed in federal district courts in Illinois, Iowa, Massachusetts, and New Hampshire, Piccone provided legal assistance to parties without securing authorization to proceed pro hac vice, and on several occasions while his Pennsylvania license to practice law was suspended. A21-48, A57-60. Third, Piccone engaged in gross misconduct and neglected his client in an action filed in the Southern District of New York. A48-53. The ALJ rejected several other charges included in the OED Director's complaint as unsupported by sufficient evidence. A48, A53, A56-57. Having found that Piccone had violated several of the PTO's disciplinary rules, [6] the ALJ ordered that Piccone be suspended from practicing before the PTO for three years. A68 (citation omitted).

         Piccone appealed that decision to the PTO Director, arguing that the ALJ had committed 53 errors of fact, procedure, and law. A5991-6029. The Director affirmed the ALJ's decision in a 34-page Final Order. A6114-6147.[7] Piccone's subsequent motion for reconsideration, A6150-72, A6198-211, was denied by the PTO on February 9, 2018. A6213-28. Piccone timely filed the present Petition to review the PTO Director's final decision [Dkt. Nos. 1-2].

         II. ANALYSIS

         Congress delegated to the PTO the authority to promulgate rules "governing] the recognition and conduct of agents, attorneys, and other persons representing applicants or other parties before [it]." 35 U.S.C. § 2(b)(2)(D). This delegation gives the PTO "broad authority" to set procedural and ethical rules for those who practice before it, and Congress's grant of gap-filling authority necessitates that courts defer to the PTO's choices where reasonable and not contrary to law. Lacavera v. Dudas. 441 F.3d 1380, 1383 (Fed. Cir. 2006) (citing Chevron. U.S.A.. Inc. v. Nat. Res. Def. Council. Inc., 467 U.S. 837, 842-43 (1984)). Congress also authorized the Director of the PTO, "after notice and opportunity for a hearing," to "suspend or exclude ... from further practice before the [PTO]... any person, agent, or attorney shown to be incompetent or disreputable, or guilty of gross misconduct, or who does not comply with the regulations established under section 2(b)(2)(D)." 35 U.S.C. § 32.

         This court has exclusive jurisdiction to review decisions by the Director to suspend or exclude an attorney from practice before the PTO. 35 U.S.C. § 32; see Franchi v. Manbeck, 972 F.2d 1283, 1287-88 (Fed. Cir. 1992). Review under § 32 is governed by the judicial review provisions of the Administrative Procedure Act ("APA"). Chaganti v. Lee, 187 F.Supp.3d 682, 690 (E.D. Va. 2016) (citing Bender v. Dudas, 490 F.3d 1361, 1365 (Fed. Cir. 2007)). Accordingly, the court's review is "highly deferential, with a presumption in favor of finding the agency action valid." Id. (quoting Ohio Valley Envtl. Coal, v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir. 2009)). The PTO's decision will be disturbed only if the petitioner demonstrates that "it is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Bender. 490 F.3d at 1365-66 (quoting 5 U.S.C. § 706).

         A. The PTO's Findings of Professional Misconduct

          First among the Petition's core arguments is that the ALJ and the PTO Director erred, under the facts and the law, in concluding that Piccone engaged in professional misconduct. None of the reasons Piccone provides is persuasive. For example, Piccone argues that it was improper for the PTO to find that he had engaged in the unauthorized practice of law with respect to work he did in support of Lawless's trademark application in late 2013 to mid-2014, while his bar license was suspended. See Combined Pet. and Compl. [Dkt. No. 2] ("Pet.") 3; Id. Ex. C [Dkt. No. 2-6] 26. In support, Piccone cites a PTO regulation stating that "[a]ny individual may appear in a trademark matter for... [a] corporation or association of which he or she is an officer and which he or she is authorized to represent." 37 C.F.R. § 11.14(e). Piccone argues that because he was the sole "director" of Lawless at the time, see A3278, he was an officer of the corporation and thus entitled to "appear" on its behalf. Pet. Ex. C [Dkt. No. 2-6] 26-35. Piccone misconstrues the regulation.[8] Section 11.14 provides in pertinent part:

(a) Attorneys. Any individual who is an attorney as defined in § 11.1[9] may represent others before the Office in trademark ...

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