The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Pro se plaintiff Cornell D.M. Judge Cornish brings this action against the U.S. Patent and Trademark Office ("USPTO") and its Director and two employees in their official capacities. Among other things, he alleges a violation of the Rehabilitation Act, and challenges as arbitrary, capricious and discriminatory the USPTO's decision to deny his request for reinstatement to the patent register without an examination nearly nine years after his voluntary removal, claiming the decision violated his First Amendment rights by preventing him from advertising as a registered patent attorney and violated his due process rights by not providing notice and a hearing regarding his reinstatement. The defendants move to dismiss for lack of jurisdiction and for Cornish's failure to state a claim or, in the alternative, for summary judgment, arguing in part that Cornish has failed to exhaust his administrative remedies on his reinstatement claim, establish a violation of the Rehabilitation Act, and state a claim for which relief can be granted on his other claims. Because Cornish has failed to show that the decision to deny his reinstatement request was arbitrary or capricious and failed to demonstrate that the defendants violated the Rehabilitation Act, the defendants' motion for summary judgment on his Rehabilitation Act and reinstatement claims will be granted. Because Cornish has failed to state a claim for which relief can be granted on his other claims, the defendants' motion to dismiss will be granted in all other respects. Also, Cornish has moved to amend his complaint for a second time, but, because he fails to state a claim for which relief can be granted in his proposed second amended complaint, his motion to amend his complaint will be denied on grounds of futility.
In 1958, Cornish applied for and passed the patent examination and became registered to practice law before the USPTO. (See Defs.' Mem. of P. & A. in Supp. of Defs.' Mot. to Dismiss or, in the Alternative, for Summ. J. ("Defs.' Mem.") at 7.) In 1995, one of Cornish's former clients filed a grievance against him and, as a result, Cornish was removed from Maryland's attorney register.*fn1 (See id. at 7-9.) In 1996, Cornish wrote the USPTO stating that he was "ceasing . . . practice before the United States Patent and Trademark Office." (Id. at 9, Ex. 7.) The director of the USPTO's Office of Enrollment Discipline ("OED") informed Cornish that the USPTO was "treating [Cornish's letter] as a request to have [his] name removed from the register[,]" and that Cornish should inform OED if it was not his intent to have his name removed. (Id. at 9-10, Ex. 8.) After giving Cornish over five months to respond, OED removed Cornish's name from the patent register. (Id. at 10 n.7.)
On January 25, 2005, Cornish requested reinstatement to the patent
register. (Id. at 12, Ex. 12). That same day, an OED staff member
wrote Cornish explaining that because more than five years had passed
since Cornish had been registered to practice before the USPTO,
Cornish would be required to take the patent registration examination
or submit a showing to the satisfaction of the OED Director that
Cornish continued to possess the legal qualifications necessary to
render valuable services for patent applicants. (Id. at 12-13, Ex.
13.) The following day, Cornish submitted a letter purporting to
detail his legal qualifications. (Id. at 13, Ex. 15.) An OED staff
attorney reviewed Cornish's submission and concluded that Cornish did
not present sufficient objective evidence of his ability to render
patent applicants valuable service. (Id. at 13-14, Ex. 17.) OED
informed Cornish that the decision was without prejudice and invited
submit additional information to support his qualifications. (Id.)
Before submitting additional information, however, Cornish sat for,
and failed, the July 2005 patent examination (id. at 14-15, Exs. 18,
20, 32, 33), the July 2006 examination (id. at 19), and the July 2007
examination. (Id. at 23, Exs. 30, 33.) Before sitting for and taking
the July 2006 and 2007 examinations, Cornish requested various
"reasonable accommodations" (see id. at 15, 21, Exs. 22, 29), and by
July 2007, OED granted all of his accommodations requests.*fn2
(Id. at 22.) Cornish brought this action in September 2007,
arguing that under the Administrative Procedure Act ("APA"), 5 U.S.C.
§ 706(2)(A), the defendants' decision to deny his reinstatement
request was arbitrary and capricious, and purporting to raise a number
of constitutional and statutory violations.*fn3 In
September 2008, Cornish amended his complaint, adding
Bivens*fn4 claims and challenges to the rules ("Final
Rules") implemented by the USPTO in August 2007 that governed patent
applicants' process for protecting inventions.
(See Amended Compl. for Att. to Approved Mot. for Leave to Amend Compl. Under Fed. R. Civ. P. 15 ("Amend. Compl.").) The defendants have moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim for which relief can be granted or, in the alternative, for summary judgment.*fn5 Cornish moved yet again to amend his complaint in March 2010, which the defendants oppose under Rule 8(a) and Local Civil Rule 7(m).
"Before a court may address the merits of a complaint, it must assure that it has jurisdiction to entertain the claims." Marshall v. Honeywell Tech. Solutions, Inc., 675 F. Supp. 2d 22, 24 (D.D.C. 2009). Under Rule 12(b)(1), a complaint may be dismissed for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). "When assessing a motion to dismiss for lack of subject matter jurisdiction, a court may consider the complaint and any undisputed facts in the record." Marshall, 675 F. Supp. 2d at 24. A plaintiff's factual allegations are subject to closer scrutiny when resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state a claim, and "[p]ro se plaintiffs are not free from the requirement to plead an adequate jurisdictional basis for their claims." Bennett-Bey v. Shulman, Civil Action No. 08-328 (RWR), 2010 WL 320216, at *1 (D.D.C. Jan. 20, 2010).
"In order to survive a motion to dismiss under Rule 12(b)(6), the allegations stated in the . . . plaintiff's complaint 'must be enough to raise a right to relief above the speculative level[.]'" Demery v. Montgomery County, MD, 602 F. Supp. 2d 206, 212 (D.D.C. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original)). While courts "do not assess 'the truth of what is asserted or determin[e] whether a plaintiff has any evidence to back up what is in the complaint[,]'" courts also do not accept "'inferences drawn by the plaintiffs if such inferences are unsupported by the facts set out in the complaint,' [or] 'legal conclusions cast in the form of factual allegations.'" Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002) (quoting Kowal v. MCI Communications Corp., 16 F.3d 1271, 1275 (D.C. Cir. 1994)). If a plaintiff fails to allege sufficient facts to support his claim and nudge it across the line from conceivable to plausible, the complaint will be dismissed. Twombly, 550 U.S. at 556, 570.
"When 'matters outside the pleadings are presented to and not excluded by the court' on a motion to dismiss under Rule 12(b)(6), 'the motion must be treated as one for summary judgment[.]'" Highland Renovation Corp. v. Hanover Ins. Group, 620 F. Supp. 2d 79, 82 (D.D.C. 2009) (quoting Fed. R. Civ. P. 12(d)) (alteration in original). Summary judgment must be granted when the moving party demonstrates that there is no genuine issue as to any material fact and that moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In deciding a motion for summary judgment, a court must draw all justifiable inferences in favor of the non-movant. Cruz-Packer v. District of Columbia, 539 F. Supp. 2d 181, 189 (D.D.C. 2008). The threshold question is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Single Stick, Inc. v. Johanns, 601 F. Supp. 2d 307, 312 (D.D.C. 2009) (overruled on other grounds).
The USPTO is authorized to establish regulations which may govern the recognition and conduct of agents, attorneys, or other persons representing applicants or other parties . . . and may require them, before being recognized as representatives of applicants or other persons, to show that they . . . are possessed of the necessary qualifications to render to applicants or other persons valuable service, advice, and assistance[.]
35 U.S.C. § 2(b)(2)(D). Under the applicable regulations, "[a]ny petition from any action or requirement of the staff of OED reporting to the OED Director shall be taken to the OED Director[.]" 37 C.F.R. § 11.2(c). A "petition not filed within sixty days from the mailing date of the action or notice from which relief is requested will be dismissed as untimely." Id. A petitioner who is dissatisfied with the OED Director's final decision "may seek review of the decision upon petition to the USPTO Director[.]" 37 C.F.R. § 11.2(d). Any petition to the USPTO Director may be dismissed as untimely if not filed within thirty days of the OED Director's final decision. Id. Finally, this court "may review the action of the [USPTO] Director upon the petition of the person so refused recognition[.]" 35 U.S.C. § 32.
Generally, for a court to hear "claims seeking judicial review of an agency action under the APA, it must determine that the action is final." Natural Res. Def. Council v. Johnson, 422 F. Supp. 2d 105, 110 (D.D.C. 2006) (overruled on other grounds) (citing Cobell v. Norton, 240 F.3d 1081, 1095 (D.C. Cir. 2001)). "A final agency action (1) marks the consummation of the agency's decision making process --- it must not be of a merely tentative or interlocutory nature; and (2) the action must be one by which rights or obligations have been determined or from which legal consequences will flow." Id. (internal quotation marks omitted). "Whether there has been 'agency action' or 'final agency action' within the meaning of the APA are threshold questions; if these requirements are not met, the action is not reviewable." Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 18 (D.C. Cir. 2006). ...