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John P. Halvonik v. Hon. David J. Kappos

January 3, 2011

JOHN P. HALVONIK, PETITIONER,
v.
HON. DAVID J. KAPPOS, UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR OF THE
U.S. PATENT AND TRADEMARK OFFICE, RESPONDENT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Petitioner John P. Halvonik ("Halvonik"), an attorney proceeding pro se,*fn1 commenced this action on February 19, 2009 against Respondent David J. Kappos ("Kappos"), in his official capacity as the Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office (the "USPTO"),*fn2 seeking review of a decision excluding Halvonik from practicing as an attorney before the USPTO for a period of five years. Presently before the Court are Kappos' [27] Motion for Judgment of Affirmance and Halvonik's [33] Motion for Judgment of Reversal. For the reasons set forth below, the Court shall GRANT Kappos' Motion for Judgment of Affirmance, DENY Halvonik's Motion for Judgment of Reversal, and DISMISS this action in its entirety.

I. BACKGROUND

Congress vested the USPTO with the statutory authority to promulgate regulations "govern[ing] the recognition and conduct of agents, attorneys, or other persons representing applicants or other parties before the Office." 35 U.S.C. § 2(b)(2)(D). Pursuant to that authority, the USPTO has enacted a Code of Professional Responsibility (the "Code"), 37 C.F.R. §§ 10.20 et seq., which includes a number of Disciplinary Rules that are "mandatory in character and state the minimum level of conduct below which no practitioner [before the USPTO] can fall without being subjected to disciplinary action." Id. § 10.20(b). If an attorney fails to comply with the Code, the USPTO has the authority, upon conducting an appropriate hearing, to "suspend or exclude, either generally or in any particular case, [the attorney] from further practice before the Patent and Trademark Office." 35 U.S.C. § 32.

A. The Commencement Of Disciplinary Proceedings Against Halvonik Halvonik is an attorney and was-prior to the resolution of the disciplinary proceedings at issue in this action-registered to practice and represent others in the prosecution of patent applications before the USPTO. On June 28, 2006, having received client complaints directed towards Halvonik, the USPTO's Office of Enrollment and Discipline (the "OED") initiated disciplinary proceedings against Halvonik, charging him with various counts of professional misconduct in violation of the Code.*fn3 See Compl. & Notice of Proceedings (June 28, 2006), at AR1-6.*fn4 Halvonik responded to the charges in writing. See Answer (Sept. 18, 2006), at AR9-11. The parties then proceeded to conduct discovery and engage in an extensive motion practice on the administrative level.

A two-day hearing was held before Administrative Law Judge Barbara A. Gunning (the "ALJ") on September 19 and 20, 2007, which Halvonik attended representing himself. See Hr'g Tr. (Sept. 19, 2007), at AR12-357; Hr'g Tr. (Sept. 20, 2007), at AR358-628. On July 31, 2008, after affording the parties an opportunity to submit post-hearing briefing, the ALJ issued a thorough forty-four page decision (the "Initial Decision"). See Initial Decision (July 31, 2008), at AR629-673. Finding that Halvonik had committed multiple willful and egregious acts of professional misconduct in violation of the Code-including, but not limited to, commingling client and personal funds, failing to promptly refund client fees that had not been earned, and neglecting to prosecute client matters in a timely manner-the ALJ concluded that excluding Halvonik from practice before the USPTO for a period of five years was the appropriate sanction. Id. at AR640-72.

B. Halvonik's "Appeal" Of The ALJ's Initial Decision

By regulation, a party aggrieved by an administrative law judge's initial suspension or exclusion order may appeal that decision to the Director of the USPTO (the "Director"):

Within thirty (30) days from the date of the initial decision of the administrative law judge under § 10.154, either party may appeal to the [Director] *** An appeal or cross-appeal by the respondent will be filed and served with the [OED] in duplicate and will include exceptions to the decisions of the administrative law judge and supporting reasons for those exceptions.

37 C.F.R. § 10.155(a) (emphasis added).*fn5 Any such administrative appeal is decided by the Director or his designee, who "may affirm, reverse or modify the initial decision or remand the matter . . . for such further proceedings as the [Director] may deem appropriate." Id. § 10.156(a).

Consistent with this procedural framework, the ALJ's Initial Decision in this case concluded with the following notice, appearing in bold text:

Pursuant to 37 C.F.R. § 10.155, any appeal by Respondent from this Initial Decision . . . must be filed in duplicate with the [OED] . . . within thirty (30) days of the date of this Decision. Such appeal must include exceptions to the Administrative Law Judge's Decision. Failure to file such an appeal in accordance with Section 10.155 above will be deemed to be both an acceptance by Respondent of the Initial Decision and that party's waiver of rights to further administrative review.

Initial Decision (July 31, 2008), at AR672 (emphasis altered). Halvonik filed a Notice of Appeal within the designated thirty-day period, a document which stated, in one sentence: "Respondent hereby appeals the final decision of the ALJ in the above referenced case." Notice of Appeal (Sept. 2, 2008), at AR674. Halvonik neither identified exceptions to the ALJ's Initial Decision nor supplied the reasons for his appeal.*fn6 Id.

Subsequently, the OED filed a brief requesting that the ALJ's Initial Decision be affirmed. See OED's Reply to Resp't's Appeal (Oct. 1, 2008), at AR675-696. The OED argued that the Initial Decision should be affirmed on substantive grounds because it was supported by clear and convincing evidence, and on procedural grounds because Halvonik failed to identify any reversible error in his Notice of Appeal. ...


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