Behnamian v. Hirshfeld, CIVIL 1:21-cv-1043 (RDA/IDD)

CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
Writing for the CourtRossie D. Alston, Jr. United States District Judge.
PartiesSHAHRIAR BEHNAMIAN, Plaintiff, v. ANDREW HIRSHFELD, in his official capacity Performing the Functions and Duties of the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, et al., Defendants.
Docket NumberCIVIL 1:21-cv-1043 (RDA/IDD)
Decision Date26 April 2022


ANDREW HIRSHFELD, in his official capacity Performing the Functions and Duties of the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, et al., Defendants.

CIVIL No. 1:21-cv-1043 (RDA/IDD)

United States District Court, E.D. Virginia, Alexandria Division

April 26, 2022


Rossie D. Alston, Jr. United States District Judge.

This matter comes before the Court on Defendants Andrew Hirshfeld and the United States Patent and Trademark Office's (“Defendants”) Motion to Dismiss (Dkt. 11) and Motion for Summary Judgment (Dkt. 12). The Court dispenses with oral argument as it would not aid in the decisional process. See Fed.R.Civ.P. 78(b); E.D. Va. Loc. Civ. R. 7(J). The Motions are now fully briefed and ripe for disposition. Considering the Motions together with Defendants' response to Plaintiff Shahriar Behnamian's (“Plaintiff”) petition for review (“Petition”) pursuant to 35 U.S.C. 32 (Dkt. 10); Defendants' memorandum in support of the Motions (Dkt. 13); Plaintiff's oppositions (Dkt. Nos. 15; 16); Defendants' reply in further support of the Motions (Dkt. 17), and Plaintiff's supplemental opposition to Defendants' response to Plaintiff's Petition (Dkt. 18), it is hereby ORDERED that Defendants' Motion to Dismiss and Motion for Summary Judgment are GRANTED and Plaintiff's Petition is DISMISSED for the reasons that follow.



For purposes of considering the Motion to Dismiss, the Court accepts all facts contained within Plaintiff's Complaint as true, as it must at the motion-to-dismiss stage. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Plaintiff filed this matter in a pro se capacity on September 10, 2021, alleging three counts styled as: (1) a petition for review of wrongful denial of an application for registration to practice before the United States Patent and Trademark Office (“USPTO” or “Agency”) pursuant to 35 U.S.C. § 32 and Local Rule 83.5;[1] (2) unlawful retaliation under Title VII of the Civil Rights Act of 1964; and (3) constructive retaliatory discharge under Title VII. See generally Dkt. 1. Plaintiff seeks, inter alia, compensatory damages, injunctive relief, and punitive damages.

Plaintiff worked at the USPTO as a Patent Examiner beginning on January 21, 2009, reached the GS-14 level as a Primary Patent Examiner in 2014, and resigned from the Agency on May 21, 2020. Dkt. 1 ¶ 40. From the summer of 2017 until the Fall of 2019, Plaintiff was enrolled in the Patent Hoteling Program (“PHP”), which allowed him to work remotely from Hawaii on a full-time basis so long as Plaintiff reported to the USPTO's headquarters in Alexandria, Virginia one hour biweekly. Id. ¶ 41. However, Agency policy permitted PHP participants to avoid the one-hour requirement by taking holiday or sick leave, provided it was not used on a consistent basis. Id.

In the spring of 2019, Plaintiff expected the birth of his second child in early April, and communicated this to his then-supervisor, Charles Appiah. In the weeks prior, Plaintiff petitioned for leave from the biweekly hour requirement to allow him to remain in Hawaii “until at least the


birth of his second child.” Id. ¶ 44. Mr. Appiah allegedly denied the work-leave request and instead “demand[ed]” that Plaintiff travel over the weekend back to USPTO headquarters ahead of his second child's impending birth. Id. ¶¶ 45, 148. Following the denial, on March 29, 2019, Plaintiff allegedly contacted four TC 2600 Directors in his Agency division for assistance. One of the TC 2600 Directors, Diego Gutierrez, allegedly granted the work-leave request, directing Plaintiff to speak with Mr. Appiah further in the coming weeks. Id. ¶ 46. On April 23, 2019, Plaintiff's second child was born. Id. ¶ 47.

According to Plaintiff, Mr. Appiah “increased his retaliation efforts by reducing his contact with the Plaintiff and scrutinizing the Plaintiff's work more often.” Id. ¶ 48. Mr. Appiah also allegedly removed Plaintiff's access to the Record Sharing Platform (“RSP”)-an integral component of Plaintiff's ability to track his time working. Id. Plaintiff avers that the Agency then determined Plaintiff had accumulated hours absent without leave (“AWOL”) six days after Plaintiff's second child was born. Id. ¶ 50. Defendants continued to allege “partial AWOL” against Plaintiff until June 5, 2019.[2] Id. Plaintiff generally avers that his supervisor “demand[ed]” he report to Alexandria, Virginia “more often.” Id. ¶ 147. On October 8, 2019, Mr. Appiah allegedly charged Plaintiff with AWOL. Id. ¶ 51. By February 27, 2020, Plaintiff received a 5-day suspension beginning on March 9, 2020, which, due to Plaintiff's trouble accessing his work computer, he alleges effectively made his suspension 7 days.[3]


During the week of May 11, 2020, Plaintiff submitted his two-week notice of departure and conducted an exit interview with Mr. William R. Perry III. Mr. Perry allegedly informed Plaintiff of his right to submit an application to practice before the USPTO and seek a waiver of examination, provided that he signed the application on his last day of employment at the Agency. Id. ¶ 55. In completing his application, Plaintiff answered “No” to each background information question, including Question 17: “Have you ever been disciplined, reprimanded, or suspended in any job for conduct involving dishonesty, fraud, misrepresentation, deceit, or for any violation of Federal or State laws or regulations.” Id. ¶ 57. On May 18, 2020, Plaintiff submitted his Application for Registration to Practice before the USPTO (“Application”)-three days prior to his resignation date-but post-dated for May 21, 2020, his last day of work. Id. ¶ 18; Dkt. 7-1 at 4.

On June 10, 2020, Plaintiff received a letter from the USPTO's Office of Enrollment and Discipline (“OED”) stating that his Application had been approved, including his request for a waiver from examination. Dkt. 1 ¶¶ 19, 58. But on July 1, 2020, the OED allegedly requested additional information from Plaintiff related to his suspension and followed up again for clarification. Id. ¶¶ 59-60. And on November 13, 2020, when the OED requested Plaintiff show cause as to why his application should not be denied because he failed to demonstrate that he “presently possesses good moral character, ” Plaintiff allegedly provided a fulsome response weeks later with four letters of recommendation. Id. ¶ 61. The OED Director issued a Final Decision and Memorandum Opinion denying the Application on January 15, 2021. Id. ¶ 62. The decision identified a number of reasons for the denial: (1) Plaintiff demonstrated a “lack of candor and truthfulness” by “cho[osing] not to disclose his suspension” which reflected “serious causes for concern regarding his present moral character”; (2) Plaintiff's conduct in reporting his time


involved dishonesty when he claimed the benefit of hours not worked; and (3) despite Plaintiff's disagreement with the characterization of his conduct, he nonetheless exhibited an “ongoing lack of acceptance of responsibility for any of his actions” which did not comply with the “exhortation to candor prefacing the Background Information section of the Application.” See Dkt. 8-3 at 137, 139.

Plaintiff appealed the decision to the USPTO Director on February 13, 2021, arguing chiefly that the OED had “ignored the facts and reasoning provided by Plaintiff and decided to deny the Plaintiff's Application based on shaky grounds.” Dkt. 1 ¶ 38. USPTO denied the Application in a Final Order on August 9, 2021 because Plaintiff's suspension was “uncontroverted” and “the inaccurate reporting of time and attendance constitutes misrepresentation.” Id. ¶ 18; Dkt. 7-3 at 70. Furthermore, the USPTO Director concluded that Plaintiff's “work history, academic success, and letters of recommendation . . . had little probative value” especially because none of Plaintiff's recommenders acknowledged Plaintiff's suspension or his AWOL “and did not indicate any change” in Plaintiff's attitude. Dkt. 7-3 at 71. On September 7, 2021, Plaintiff contacted the Equal Employment Opportunity Commission (“EEOC”) and a counselor interviewed Plaintiff the following day. Dkt. 19-1 at 19, 21.

On September 10, 2021, Plaintiff filed his Complaint. Dkt. 1. Pursuant to Local Civil Rule 83.5, on November 9, 2021, Defendants filed a response singularly addressing Plaintiff's first count seeking review of the USPTO's denial of Plaintiff's application to practice as well as a copy of the certified Administrative Record. Dkt. Nos. 7-10. The Court, in its discretion, did not require briefing on the petition for review. E.D. Va. Loc. Civ. R. 83.5. Defendants then filed a motion to dismiss and a motion for summary judgment with a Roseboro notice on November 9, 2021, paired with a single supporting memorandum. Dkt. Nos. 11; 12; 13. Plaintiff responded with an


opposition on November 30, 2021, and appeared to file the same brief again under a separate heading. Dkt. Nos. 15; 16. Defendants filed their reply on December 6, 2021. Dkt. 17. Plaintiff then filed a sur-reply to Defendants' reply on December 13, 2021 in accordance with Local Civil Rule 7(K)(4). Dkt. 18.


A. Rule 12(b)(6) Standard

A Rule 12(b)(6) motion tests the sufficiency of a complaint. Brockington v. Boykins, 637 F.3d 503, 506 (4th Cir. 2011). “[T]he reviewing court must determine whether the complaint alleges sufficient facts ‘to raise a right to relief above the speculative level[, ]'” and dismissal of the motion is appropriate only if the well-pleaded facts in the complaint “state a claim that is plausible on its face.'” Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015) (quoting Twombly, 550 U.S. at 555, 570). A claim is facially plausible ...

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