Is OED’s Indefinite Delay In “Reviewing” Reinstatement Applications Constitutional?

Michael E. McCabe, Jr.Office of Enrollment and Discipline, Patent Attorney Disciplinary Matters, Reinstatement, SuspensionLeave a Comment

Don't pass goAn attorney’s suspension from the practice of law is not unlike a jail sentence.  Not literally, of course.  The suspended attorney is free to do anything they otherwise could do when they were not suspended, with the exception of practicing law.

Many practitioners believe that once their suspension period has run its course, the practitioner is “released,” the suspension is automatically lifted, and the practitioner may immediately get back into “the game” and resume (or resurrect as the case may be) what remains of their legal career.

Not so, at least in the USPTO.  By regulation, once a suspended practitioner has served his or her suspension period, the practitioner is not permitted to return immediately to practicing before the Office.  On the contrary, the “end” of the formal suspension period simply marks the beginning of a new (informal) suspension period, known as reinstatement.  To get through the informal suspension period, the practitioner must file, and the Office of Enrollment and Discipline must approve, the practitioner’s petition for reinstatement to practice before the Office.  See 37 C.F.R. Section 11.58.

The task of reviewing and approving reinstatement petitions is delegated to the OED Director.  Until the petition for reinstatement is approved, the practitioner’s status remains in legal limbo–although they have served their formal suspension they remain prohibited from engaging in any practice before the USPTO.  Thus, in calculating an actual suspension period, a USPTO practitioner must account for both the formal suspension period (a fixed and certain period) and the informal reinstatement period (an unpredictable and highly variable period).

As can be imagined, every day the OED Director delays approval of a suspended practitioner’s reinstatement application adds another day to the practitioner’s actual suspension.  And there is nothing in the rules of the USPTO requiring the OED Director to act with any expediency in “reviewing” reinstatement petitions.  This regulatory gap can, as a practical matter, substantially lengthen a practitioner’s actual suspension period.  Indeed, in some cases, the time it takes for the OED to “review” and “approve” a practitioner’s reinstatement petition is actually longer–in some cases substantially longer–than the period of “formal” suspension.

Take the matter of Phillip M. Pippenger.

On August 15, 2014, Mr. Pippenger was suspended from practice before the Office for 60 days.  See In re Pippenger, D2014-16  (USPTO Dir. Aug. 15, 2014).  Thus, his formal suspension period ended on October 13, 2014.  Based on the limited public record, Mr. Pippenger apparently served his suspension without incident and timely submitted his reinstatement application so that it was in the hands of the USPTO Director on the earliest date possible.

Then Mr. Pippenger waited.  And waited.  And waited.  For a long time.  A very long time.

Finally, 202 days after applying for reinstatement, Mr. Pippenger’s petition was “approved” by the OED Director. By delaying its review of Mr. Pippenger’s reinstatement request, the OED Director more than quadrupled the length of Pippenger’s suspension from 60 days to 262 days.

Even more troubling is that nothing in the public record offers any explanation as to why the agency took such an extraordinary and disproportionate length of time to “review” Mr. Pippenger’s reinstatement application.  All the OED had to say about this matter is:

Consideration has been given to the Petition for Reinstatement of Phillip M. Pippenger received on October 10, 2014. Mr. Pippenger has filed an Affidavit pursuant to 37 CFR § 11.58 in support of the Petition. After careful review of the Petition, the supporting affidavit, and any information that was received in response to the publication of a Notice of Petition for Reinstatement, the Director of the Office of Enrollment and Discipline has determined that reinstatement of Mr. Pippenger to practice before the United States Patent and Trademark Office is appropriate.

Really?  “Careful” review?  How much time is needed to “review” one man’s petition and affidavit?  Did Mr. Pippenger’s world change so much in the 60 days he was suspended that the OED needed 200 plus days to “review” his petition and affidavit?  Something is not right.

This regulatory loophole is especially problematic since it is the USPTO Director, the head of the Agency, who imposes any period of suspension.  In the matter of Pippenger, the USPTO Director decided to impose a 60-day suspension.  Maybe the OED Director thought this suspension period was “too lenient.”  Whatever the case may be, the present regulatory structure permits the OED Director to use the powers granted him under Section 11.58 and slow-track consideration of a practitioner’s reinstatement petition so that the time actually served may be more to his liking.

Maybe this is what happened in the case of Mr. Pippenger, and maybe it did not.  We cannot know because the OED’s secrecy rules prevent the agency from disclosing much of what occurs behind the agency’s closed doors.  Still, if there is a reasonable explanation for why it took over six months to reinstate someone who was suspended for two months, that explanation has not been proffered by the OED.  Maybe it should be.  Right now, however, the process is designed so that decisions on reinstatement petitions take as long as the OED Director decides it needs to take.  imagesOIHGMLC2

Mr. Pippenger’s case does not appear to be an anomaly.  A review of several reinstatement petitions published in the last several years reveals inexplicable “foot dragging” in the time it takes for the OED to review and approve a suspended practitioner’s reinstatement petition.

For example, in one case, a practitioner’s reinstatement application was pending for 225 days before it was finally approved by the OED Director.  See, e.g., In re Basrai, R-14 (OED Dir. June 18, 2013).  In another case, a practitioner suspended for 90 days had another 110 days tacked on as a result of the time it took the OED Director to approve the reinstatement application.  In re Massicotte, R-13 (OED Dir. Dec. 4, 2012).

The primary purpose of attorney discipline is to protect the public, not to punish the lawyer.  A suspension is a very serious form of discipline.  A fair number of practitioners are never able, as a practical matter, to return to the practice of law, especially if they have been side-lined for multiple years.

Still, once a practitioner has served their punishment, a practitioner who wants back in should not be left waiting indefinitely while the OED Director decides to get around to reviewing the practitioner’s reinstatement application.  At the very least, the OED Director should be required to act on reinstatement petitions with some degree of urgency.  The Office certainly has the resources to do so.  Simply put, the time it takes for the OED Director to consider and act on a reinstatement petition should not be so grossly disproportionate to the original suspension period to make the reinstatement “tail” wag the suspension “dog.”

Inordinate and unexplained delays in processing of reinstatement applications might be sufficiently egregious to raise Constitutional concerns.  Indeed, it is well settled that attorney disbarment and suspension proceedings are quasi-criminal in nature, and practitioners who are subject to such discipline are entitled to, among other things, due process.  See In re Ruffalo, 390 U.S. 544 (1968).  A suspended attorney’s right to “notice” of the length of his or her suspension may be violated where a mid-level agency official can, for any reason or no reason at all, simply “sit” on a reinstatement application and do nothing, tacking months onto the original suspension.  Where is the “notice” to the practitioner?

Clearly some balance is needed between the OED Director’s duty to ensure that suspended practitioners are sufficiently reformed so that they are fit to practice (thus protecting the public), and a suspended practitioner’s right to fair notice regarding how long they are actually being suspended.  Perhaps this concern can be addressed by amending the present regulations so the OED Director has a hard deadline in which to perform his duty in acting on reinstatement applications.  That does not seem to be too much to ask for and it could curb what some may perceive as the potential for abuse of unchecked power.

When the OED Director can quadruple a suspension period without any explanation, then something is not right.  One must ask whether, under the present rules, the OED’s process for reinstatement is fair and is being carried out uniformly, impartially, transparently, and reasonably for all interested parties.

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