The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
Peter Kramer, proceeding pro se, commenced this action against the United States Patent and Trademark Office ("PTO"); Jon W. Dudas, Director of the PTO; John J. Doll, Commissioner for Patents; Harry I. Moatz, Director of the PTO's Office of Enrollment and Discipline ("OED"); and Robert J. Spar, Director of the Office of Patent Legal Administration ("OPLA") following his failure to receive a passing grade on the patent bar registration examination. Kramer seeks a writ of mandamus in order to compel the PTO to review a regrading of his exam. Before the court is defendants' motion to dismiss for lack of jurisdiction (Dkt. #4), and Kramer's motion for leave to file a second amended complaint (Dkt. #18). Upon consideration of the motions, the oppositions thereto, and the record of this case, the court concludes that defendants' motion must be granted and Kramer's motion denied.
Kramer took the patent bar registration exam on October 15, 2003, and received a 68, two points below a passing grade of 70. Dissatisfied with his score, Kramer petitioned the Director of OED for a regrade of his examination on February 20, 2004.*fn1 The Director of OPLA responded to Kramer's request on October 25, 2004, and awarded Kramer an additional point. Nevertheless, Kramer was denied admission to the patent bar because his score remained below that which was required to pass.
Kramer disputed the results of the regrade and believed that he deserved additional credit for a number of answers that he contends were erroneously marked incorrect. Accordingly, on December 13, 2004 Kramer submitted a request to the Director of the PTO "pursuant to 37 C.F.R. § 10.2(b)(2)(d)" asking for review of the regrade.*fn2 Am. Compl. Ex. 8 (Dec. 13, 2004 Letter). The Director of OPLA replied to Kramer's petition and, once again, concluded that Kramer had not passed the patent bar examination. On the same day, the Director of OED returned to Kramer a personal money order in the amount of $130.00 that was sent as payment for the review of the October 25, 2004, regrade. The money was returned because, according to the correspondence accompanying the money order, "Inasmuch as the rules did not provide for a fee for reconsideration of the decision on regrade, the money order is being returned to you." Am. Compl. Ex. 7 (Feb. 17, 2005 Letter).
Despite this second decision from the PTO, Kramer persisted with his insistence that his exam had been improperly graded and expressed as much in a February 28, 2005 letter addressed to the Director of OPLA. This time, however, the Director of OPLA refused to re-examine the merits of Kramer's contentions. On March 28, 2005, the Director of OPLA informed Kramer that "[t]he Office's decisions on October 25, 2004 and February 17, 2005 fully addressed your arguments. There are no rules or procedures for a petitioner to request for reconsideration of a decision of a petition for regrade under 37 C.F.R. 10.7(c)." Am. Compl. Ex. 3 (Mar. 28, 2005 Letter). In addition, the letter noted that the previous decisions stated that they represented "final agency action" and that these final agency decisions "will be reviewable under 35 U.S.C. § 32." Id.
Undeterred, Kramer again wrote the PTO. In a letter dated April 8, 2005, Kramer sought "to petition according to 37 C.F.R. 10.2(c) in order to appeal" the February 17, 2005 decision reconsidering Kramer's regrade. Am. Compl. Ex. 2 (Apr. 8, 2005 Letter). Kramer's quest for an additional two points on his exam and a passing grade, however, was again unsuccessful. As it did in its March 28, 2005 letter, on May 18, 2005 OPLA declined to review the merits of Kramer's claims. Rather, OPLA stated that Kramer's "petition under 37 C.F.R. 10.2(c) . . . is improper for requesting review of the decisions dated February 17, 2005 and October 25, 2004.
37 C.F.R. 10.2(c) provides for review of any final decision of the Director of Enrollment and Discipline. Thus, the petition under 37 C.F.R. 10.2(c) is improper because the decisions were not rendered by the Director of Enrollment and Discipline." Am. Compl. Ex. 1 (May 18, 2005 Letter) (emphasis in the original).
On July 22, 2005, Kramer filed the instant action seeking a writ of mandamus "ordering the Commissioner for Patents, United States Patent and Trademark Office and the Director of Enrollment and Discipline, to comply with rules and statutes concerning [his] application to practice as an agent before the USPTO."*fn3 Am. Compl. at 1. Defendants now move to dismiss Kramer's first amended complaint.
Defendants assert that the instant action should be dismissed because Kramer failed to file timely his complaint.*fn4 Defendants argue that LCvR 83.7 requires any individual seeking the district court to review his/her denial from admission to the patent bar to do so within thirty days of the agency order denying said admission and Kramer simply did not comply with this requirement.
1. 28 U.S.C. § 1361 v. 35 U.S.C. § 32
In order to resolve this dispute the court must first determine the precise nature of the relief that Kramer seeks. Kramer, proceeding pro se, has styled his complaint as a petition for a writ of mandamus pursuant to 28 U.S.C. § 1361. Defendants object to this categorization arguing instead that, when properly ...