Polidi v. Matal , 709 F. App'x 1016 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICHARD POLIDI,
Plaintiff-Appellant
v.
JOSEPH MATAL, PERFORMING THE FUNCTIONS
AND DUTIES OF THE UNDER SECRETARY OF
COMMERCE FOR INTELLECTUAL PROPERTY
AND DIRECTOR, U.S. PATENT & TRADEMARK
OFFICE,
Defendant-Appellee
______________________
2016-1997
______________________
Appeal from the United States District Court for the
Eastern District of Virginia in No. 1:15-cv-01030-TSE-
MSN, Judge T. S. Ellis III.
______________________
Decided: October 12, 2017
______________________
LOUIS A. PICCONE, Hawkesbury, Ontario, Canada,
argued for plaintiff-appellant.
KIMERE JANE KIMBALL, Office of the United States
Attorney for the Eastern District of Virginia, Alexandria,
VA, argued for defendant-appellee. Also represented by
2 POLIDI v. MATAL
DANA J. BOENTE; NATHAN K. KELLEY, THOMAS W. KRAUSE,
SYDNEY O. JOHNSON, JR., ELIZABETH ULLMER MENDEL,
Office of the Solicitor, United States Patent and Trade-
mark Office, Alexandria, VA.
______________________
Before NEWMAN, CHEN, and STOLL, Circuit Judges.
PER CURIAM.
Richard Polidi appeals the decision of the United
States District Court for the Eastern District of Virginia
affirming the United States Patent and Trademark Of-
fice’s decision to exclude Mr. Polidi from practice before
the PTO and dismissing his petition for judicial review.
Polidi v. Lee, No. 15-cv-1030 (E.D. Va. Nov. 24, 2015). We
affirm.
BACKGROUND
On July 21, 2014, Mr. Polidi surrendered his license
to practice law in North Carolina after conceding that he
could not successfully defend himself in a pending profes-
sional misconduct investigation. After his surrender,
Mr. Polidi was disbarred from the practice of law in North
Carolina by consent order of disbarment.
In 2015, the Director of the PTO’s Office of Enroll-
ment and Discipline initiated reciprocal disciplinary
proceedings against Mr. Polidi based on his disbarment in
North Carolina. On February 10, 2015, the Director
issued a Notice and Order pursuant to 37 C.F.R. § 11.24
informing Mr. Polidi of the possibility that he would be
excluded from practicing before the PTO. The Notice and
Order gave Mr. Polidi 40 days to file a response contain-
ing all information that Mr. Polidi believed “sufficient to
establish a genuine issue of material fact that the imposi-
tion of the discipline identical to that imposed” in North
Carolina “would be unwarranted and the reasons for such
claim.” J.A. 15–16.
POLIDI v. MATAL 3
Mr. Polidi sought and received three extensions of
time to respond. Prior to the extended June 11, 2015
response deadline, Mr. Polidi submitted a request for
discovery, asking that “the OED disclose material in its
possession that tends to assist in the defense of the pre-
sent matter.” J.A. 147. Mr. Polidi renewed this discovery
request on June 10, 2015. Neither discovery request,
however, provided any basis for why he thought the PTO
might have exculpatory evidence. The PTO denied these
requests, explaining that discovery was only allowed in
“contested” cases and that Mr. Polidi’s case was not
“contested” because he had not yet filed a response.
Thereafter, on July 14, 2015, the PTO, in light of his
failure to file a response, imposed reciprocal discipline,
excluding Mr. Polidi from practicing before the PTO.
Mr. Polidi subsequently filed a petition for review in
the district court, arguing that the PTO erred by denying
his discovery requests. The district court affirmed the
PTO’s decision and dismissed Mr. Polidi’s petition for
judicial review, determining that “there is no basis to
conclude that the PTO’s decision to exclude petitioner
from practice before the agency was ‘arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance
with law.’” J.A. 179 (quoting 5 U.S.C. § 706).
Mr. Polidi appeals. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(1).
DISCUSSION
Judicial review of a disciplinary action taken by the
PTO is governed by the provisions of the Administrative
Procedure Act. Bender v. Dudas, 490 F.3d 1361, 1365–66
(Fed. Cir. 2007). A disciplinary decision will be upheld
unless it is “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” Id. (quoting
5 U.S.C. § 706). Our review of a district court’s decision
on a petition brought pursuant to 35 U.S.C. § 32 is de
novo, “reapplying the standard” applied by the district
4 POLIDI v. MATAL
court under the APA. Sheinbein v. Dudas, 465 F.3d 493,
495 (Fed. Cir. 2006).
Pursuant to its authority, the PTO has determined
that it will impose reciprocal discipline against a practi-
tioner who has been disciplined or disqualified by another
jurisdiction, such as a state bar. 37 C.F.R. § 11.24. In a
reciprocal matter, the Director is charged with imposing
“the identical public censure, public reprimand, probation,
disbarment, suspension or disciplinary disqualification
unless the practitioner clearly and convincingly demon-
strates and the . . . Director finds” that there is “a genuine
issue of material fact” as to one of the following factors
derived from the Supreme Court’s decision in Selling v.
Radford, 243 U.S. 46, 50–51 (1917):
(i) The procedure elsewhere was so lacking in no-
tice or opportunity to be heard as to constitute a
deprivation of due process;
(ii) There was such infirmity of proof establishing
the conduct as to give rise to the clear conviction
that the Office could not, consistently with its du-
ty, accept as final the conclusion on that subject;
(iii) The imposition of the same public censure,
public reprimand, probation, disbarment, suspen-
sion or disciplinary disqualification by the Office
would result in grave injustice; or
(iv) Any argument that the practitioner was not
publicly censured, publicly reprimanded, placed
on probation, disbarred, suspended or disciplinari-
ly disqualified.
37 C.F.R. § 11.24(d)(1) (emphasis added).
Here, Mr. Polidi never responded to the PTO’s notice
of reciprocal discipline despite multiple extensions. Thus,
he failed to clearly and convincingly demonstrate, wheth-
er in a response or otherwise, a genuine issue of material
POLIDI v. MATAL 5
fact as to one of the four Radford factors. As to
Mr. Polidi’s denied discovery requests, which he main-
tains on appeal were denied in error, Mr. Polidi never
provided the PTO with any reasonable basis as to why his
request was appropriate. While Mr. Polidi attempted to
provide a basis for his discovery requests at oral argu-
ment, the PTO’s denial of such requests and imposition of
reciprocal discipline was not arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law. 1
CONCLUSION
We have carefully considered Mr. Polidi’s remaining
arguments and determined that they lack merit. For the
reasons stated above, we affirm.
AFFIRMED
COSTS
No costs.
1 We have also considered the arguments contained
in Mr. Polidi’s motion to correct the record and his accom-
panying reply but find them unpersuasive.