Klein v. Peterson, Civ. A. No. 87-2661

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtHAROLD H. GREENE
PartiesArthur O. KLEIN, Plaintiff, v. Donald W. PETERSON, Defendant.
Decision Date16 August 1988
Docket Number87-2950.,Civ. A. No. 87-2661

696 F. Supp. 695
8 USPQ 2d 1434

Arthur O. KLEIN, Plaintiff,
v.
Donald W. PETERSON, Defendant.

Civ. A. Nos. 87-2661, 87-2950.

United States District Court, District of Columbia.

August 16, 1988.


696 F. Supp. 696

William J. Carter, Carr, Goodson, Lee & Foret, Washington, D.C., for plaintiff.

Nathan Dodell, Asst. U.S. Atty., Washington, D.C. (Harris A. Pitlick, Associate Sol., Patent & Trademark Office, Office of the Sol., Arlington, Va., of counsel), for defendant.

MEMORANDUM AND ORDER

HAROLD H. GREENE, District Judge.

This matter is before the Court pursuant to 35 U.S.C. § 32 and Local Rule 213, which provides that a person "suspended or excluded from practice before the Patent Office may file a petition in this court against the Commissioner of Patents for review of such action...."

On August 20, 1984, a disciplinary proceeding, Nakamura v. Klein, was instituted in the Patent and Trade Office (PTO) against plaintiff pursuant to 35 U.S.C. § 32 and 37 CFR 1.348 (1984). Plaintiff was charged with four counts of misconduct arising out of the handling of eleven papers in ten separate patent applications, and in giving false answers in PTO Requirements for Information relating to two of the ten applications, in violation of 37 CFR §§ 1.344 and 1.56, DR 1-102(A)(4), and DR 6-101(A)(3) of the Code of Professional Responsibility of the American Bar Association.

On June 24, 1985, following an extensive period of discovery, an eight day hearing was had before an Administrative Law Judge (ALJ). Plaintiff was afforded the opportunity to put on a defense and to cross-examine the PTO's witnesses, and the parties were then given leave to file post-hearing submissions. On December 2, 1985 defendant moved to reopen or supplement the record based on newly discovered evidence. After requiring the PTO to disclose the new evidence to plaintiff, the hearing was reopened and the evidence submitted to the record. No testimony was taken at that one day session.

On May 2, 1986, the ALJ entered a Recommended Decision, holding that each of the charges was proven by clear and convincing evidence. The parties then filed exceptions to the Recommended Decision with the Deputy Commissioner, who was to review the ALJ's determination. The Deputy Commissioner on August 28, 1987 entered a decision in the disciplinary proceeding, which was withdrawn soon thereafter upon motion of the Solicitor. An Amended Decision, the decision under review in this case, was entered on October 19, 1987, essentially adopting the ALJ's recommendations and suspending plaintiff from practice before the PTO for a period of seven years. Execution of the last five years of suspension was suspended, and plaintiff was placed on probation for five years. The imposition of sanctions under the Decision was stayed pending appeal.

Plaintiff challenges the validity of the proceedings below on three grounds: (1) that the disciplinary process to which he was submitted was per se violative of due process; (2) that the proceedings were conducted in an arbitrary and capricious manner, and were therefore violative of due process; and (3) that the Solicitor failed to carry the burden of proving the charges by clear and convincing evidence. These arguments will be considered in turn.

It is clear that procedural due process is required in attorney discipline cases. See In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968). Plaintiff contends that the statutes and regulations governing

696 F. Supp. 697
disciplinary proceedings within the PTO are impermissibly vague in that they fail to clearly establish proper procedural safeguards and guidelines, applicable standards of conduct, or standards of proof, and that they are therefore per se violative of due process. But this conclusion is not compelled by precedent, as plaintiff suggests. The Supreme Court has held that administrative agencies should be "free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties." FTC v. Pottsville Broadcasting Co., 309 U.S. 134, 143, 60 S.Ct. 437, 441, 84 L.Ed. 656 (1939). Rather, the question whether plaintiff was deprived of his right to due process must be answered by an examination of the proceedings conducted against him

A review of the administrative record shows that plaintiff was provided adequate notice of the charges, was able to depose those PTO officers involved with the investigation, was given the right to put on a defense and to confront adverse witnesses. Although plaintiff was denied access to some of the documents relating to his investigative file,1 and to the complete files of previously adjudicated PTO disciplinary proceedings,2 that denial did not constitute a violation of his due process rights. As plaintiff concedes, parties to agency proceedings are not entitled to pre-hearing discovery. See Silverman v. CFTC, 549 F.2d 28, 33 (7th Cir.1977). Discovery must be granted only if in the particular situation a refusal to do so would so prejudice a party as to deny him due process. See e.g., Withrow v. Larkin, 421 U.S. 35, 46, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975). The Court finds that the adverse rulings of the ALJ regarding discovery did not materially harm plaintiff and that no infringement of his due process rights flowed therefrom.

Plaintiff also alleges affront to his due process rights by reason of the ALJ's grant of defendant's Motion to Reopen or Supplement the Record, forcing plaintiff "to combat late evidence produced out of...

To continue reading

Request your trial
5 practice notes
  • Practice and procedure: Patent and trademark cases rules of practice; representation of others before Patent and Trademark Office,
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...See In re Dula, 1030 Off. Gaz. 20 (May 17 1983); In re Klein, 6 USPQ2d 1547 (Comm'r Pat. 1987), aff'd sub nom., Klein v. Peterson, 696 F. Supp. 695, 8 USPQ2d 1434 (D.D.C. 1988), aff'd, 866 F.2d 412, 9 USPQ 2d 1558 (Fed. Cir. 1989); Small v. Weiffenbach, 10 USPQ 2d 1898 (Comm'r Pat. Paragrap......
  • Part II
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...See In re Dula, 1030 Off. Gaz. 20 (May 17 1983); In re Klein, 6 USPQ2d 1547 (Comm'r Pat. 1987), aff'd sub nom., Klein v. Peterson, 696 F. Supp. 695, 8 USPQ2d 1434 (D.D.C. 1988), aff'd, 866 F.2d 412, 9 USPQ 2d 1558 (Fed. Cir. 1989); Small v. Weiffenbach, 10 USPQ 2d 1898 (Comm'r Pat. Paragrap......
  • Klein v. Peterson, Nos. 88-1578
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • January 19, 1989
    ...Judge. Arthur O. Klein appeals from the order of the United States District Court for the District of Columbia, Klein v. Peterson, 696 F.Supp. 695, 8 USPQ2d 1434 (D.D.C.1988), affirming the Amended Decision of the Deputy Patent Commissioner, In re Klein, 6 USPQ2d 1547 (Dec.Comm'r Pat.1987),......
  • HOUSING AUTHORITY OF COUNTY OF KING v. Pierce, Civ. A. No. 88-0495.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 20, 1989
    ...a party as to deny him due process." McClelland v. Andrus, 606 F.2d 1278, 1286 (D.C.Cir.1979). See also Klein v. Peterson, 696 F.Supp. 695, 697 (D.D.C.1988) (Greene, J.). This principle reflects the bedrock rule that an agency must always endeavor to mold its procedures to the requirem......
  • Request a trial to view additional results
3 cases
  • Klein v. Peterson, Nos. 88-1578
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • January 19, 1989
    ...Judge. Arthur O. Klein appeals from the order of the United States District Court for the District of Columbia, Klein v. Peterson, 696 F.Supp. 695, 8 USPQ2d 1434 (D.D.C.1988), affirming the Amended Decision of the Deputy Patent Commissioner, In re Klein, 6 USPQ2d 1547 (Dec.Comm'r Pat.1987),......
  • HOUSING AUTHORITY OF COUNTY OF KING v. Pierce, Civ. A. No. 88-0495.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 20, 1989
    ...a party as to deny him due process." McClelland v. Andrus, 606 F.2d 1278, 1286 (D.C.Cir.1979). See also Klein v. Peterson, 696 F.Supp. 695, 697 (D.D.C.1988) (Greene, J.). This principle reflects the bedrock rule that an agency must always endeavor to mold its procedures to the requirem......
  • Worley v. U.S. Patent and Trademark Office, No. Civ.A. 99-1469 (RCL).
    • United States
    • U.S. District Court — District of Columbia
    • November 8, 2000
    ...fair hearing has been had and whether there is substantial evidence to support the action of the Patent Office." Klein v. Peterson, 696 F.Supp. 695, 698 (D.D.C.1988). Finally, pursuant to District of Columbia Local Civil Rule 83.7, the Court is limited in its review to the record and p......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT