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Klein v. Toupin

May 24, 2006


The opinion of the court was delivered by: Gladys Kessler United States District Judge


Plaintiff, Arthur Klein, brings this case pro se alleging that Defendants, James Toupin, Harry Moatz, the United States Patent and Trademark Office ("USPTO"), and the United States Department of Commerce, unlawfully denied his seventh petition for reinstatement to practice before the USPTO. He brings suit under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and 42 U.S.C. § 1983.

This matter is before the Court on Plaintiff's Motion for Summary Judgment, [#44], and Defendants' Cross Motion to Dismiss or, in the Alternative, for Summary Judgment, [#52]. Upon consideration of the Motions, Oppositions, Replies, and the entire record herein, and for the reasons stated below, Defendants' Motion is granted and Plaintiff's Motion is denied.


The USPTO instituted a disciplinary proceeding against Plaintiff in 1984, charging him with fraudulently back-dating documents he filed with the USPTO, neglecting legal matters entrusted to him, and providing false information in connection with the USPTO's investigation of his conduct. After an extensive discovery period and hearing, the Administrative Law Judge ("ALJ") found that Plaintiff had violated various USPTO disciplinary rules and recommended that he be suspended from practice for two years. The USPTO Director agreed with the ALJ's decision, and issued a final order suspending Plaintiff from practice for two years. The order provided that he could qualify for reinstatement after the two year suspension by complying with the requirements found in 37 C.F.R. §§ 10.158 ("Rule 158") and 10.160 ("Rule 160").

Since that time, instead of complying with the terms of the Director's order regarding reinstatement, Plaintiff has filed eight petitions with the USPTO, and numerous cases in the federal district courts and appeals to the Federal Circuit, each substantively challenging his original suspension from practice.

Plaintiff first petitioned the USPTO for reinstatement in 1988. The USPTO denied his petition because he did not comply with the terms of his suspension governing when he could apply for reinstatement. Plaintiff then sought reversal of the USPTO's decision to suspend his practice in federal district court. The District Court upheld the USPTO's determination, Klein v. Peterson, 696 F. Supp. 695 (D.D.C. 1988), and the Federal Circuit affirmed. Klein v. Peterson, 866 F.2d 412 (Fed. Cir. 1989).

Plaintiff then proceeded to file seven successive petitions before the USPTO and five additional lawsuits in federal district court, all of which were based on the same nucleus of facts underlying the USPTO's original decision not to reinstate him. See Klein v. Rogan, 02-789, slip op. at 1-6 (D.D.C. Mar. 28, 2003) (Kessler, J.) (describing litigation history). All of Plaintiff's petitions*fn1 to the USPTO have been denied for the same reason -namely that Plaintiff failed to comply with the requirements for reinstatement outlined in Rules 158 and 160. All of the USPTO's decisions denying Plaintiff's petitions have been upheld in federal district court. Peterson, 696 F. Supp. 695 (dismissal involved two consolidated petitions to USPTO); Klein v. Lehman, No. 92-2798, slip. op. (D.D.C. Mar. 4, 1994) (Lamberth, J.); Klein v. USPTO, No. 94-240 (D.D.C. Oct. 24, 1996) (Sullivan, J.); Rogan, No. 02-789 (D.D.C. Mar. 28, 2003). All of the District Court decisions which were appealed were affirmed by the Federal Circuit. Klein v. Lehman, 61 F.3d 918 (Fed. Cir. 1995) (table); Klein v. Dudas, 2005 WL 548264 (Fed. Cir. Mar. 9, 2005).

Plaintiff's sixth petition for reinstatement to practice before the USPTO was denied on the same grounds as his previous petitions - failure to comply with Rules 158 and 160. This Court upheld that decision in Rogan, and the Federal Circuit affirmed. Considering Plaintiff's long history of unsuccessful litigation, the Federal Circuit warned Mr. Klein that "[a]ny future filing on the body of facts already in the record will be considered frivolous, and could lead to sanctions." Dudas, 2005 WL 548264.

Nonetheless, in 2003 Plaintiff filed his seventh petition before the USPTO, based on the same set of facts presented in his sixth petition. Indeed, his seventh petition incorporated by reference the entire administrative record from Rogan, indicating that the factual bases for the two cases are identical. Again, the USPTO denied his petition. Plaintiff now seeks review of that decision.


Summary judgment will be granted when the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits or declarations, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). A fact is "material" if it might affect the outcome of the action under the governing law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986).

The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The nonmoving party then must "go beyond the pleadings and by [its] own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. at 324 (internal quotations omitted). See Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (nonmoving party has affirmative duty "to provide evidence that would permit a reasonable jury to find" in its favor).


A. Plaintiff's Constitutional Claims, APA Claims, and Patent Act Claims Are Barred by the Doctrine of Res Judicata

Under the doctrine of res judicata, a "judgment on the merits in a prior suit bars a second suit involving identical parties or their privies based on the same cause of action." Apotex, Inc. v. Food & Drug Admin., 393 F.3d 210, 217 (D.C. Cir. 2004). As the Supreme Court has explained, the doctrine works "to preclude parties from contesting matters that they have had a full and fair opportunity to litigate," which in turn "protects their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions." Montana v. United States, 440 U.S. 147, 153 (1979). Res judicata bars a party from litigating not only those issues that were previously litigated, but also those that could have been raised, but were not. Allen v. McCurry, 449 U.S. 90, 94 (1980).

1. Plaintiff's Constitutional Claims

In Counts I and II of his Amended Complaint, Plaintiff alleges violations of his First, Fourth, Fifth and Fourteenth Amendment rights. Am. Compl. at ΒΆΒΆ 21-22. These claims were already raised and squarely rejected in Rogan, in which this Court held that Plaintiff simply "had no fundamental right to the . . . practice of law before the PTO." Rogan, No. 02-798, slip op. at 13-14; see also Peterson, 696 F. Supp. 695, 698 (D.D.C. 1998) (holding that USPTO disciplinary proceeding did not violate Klein's due process rights). Because Plaintiff's constitutional claims related to the USPTO's handling of his ...

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