Cornish v. United States of America

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

______________________________
)
CORNELL D.M. JUDGE CORNISH, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-797 (RWR)
)
UNITED STATES OF AMERICA, )
et al., )
)
Defendants. )
______________________________)

MEMORANDUM OPINION

Pro se plaintiff Cornell Cornish brings claims against the

United States of America, the U.S. Patent and Trademark Office

(“USPTO”), and then-USPTO employees Jon Doll, Harry I. Moatz, and

James Toupin, each of whom is sued in his official and individual

capacities, arising from the USPTO’s decisions to deny Cornish’s

request for reinstatement to the patent attorney register. The

defendants move to dismiss or, in the alternative, for summary

judgment, arguing among other things that Cornish’s claims fail

for lack of proper service and personal jurisdiction, and for

failure to state a claim. Because Cornish failed to effect

proper service upon the individually-named defendants, his claim

regarding USPTO rules is moot, sovereign immunity bars his common

law claims and constitutional claims against the government and

the employees in their official capacities, and res judicata bars

his reinstatement claim, the defendants’ motion will be granted.
 -2-

BACKGROUND

Earlier memorandum opinions described the facts relevant

here. See Cornish v. Dudas, 813 F. Supp. 2d 147 (D.D.C. 2011)

(“Cornish II”); Cornish v. Dudas, 715 F. Supp. 2d 56 (D.D.C.

2010) (“Cornish I”). Cornish passed the patent examination in

1958 and was registered to practice before the USPTO. Cornish I,

715 F. Supp. 2d at 59. However, a former client filed a

grievance against him in 1995. In 1996, Cornish informed the

USPTO that he would “ceas[e] practice,” id., and the USPTO

construed the letter as a request for removal from the register.

Cornish II, 813 F. Supp. 2d at 148. After the USPTO invited

Cornish to correct its interpretation and received no response,

it removed Cornish from the register. Id.

Cornish requested reinstatement in 2005. Id. However, the

USPTO denied the request based on Cornish’s failure to present

sufficient evidence “of his ability to render patent applicants

valuable service” or, in the alternative, to pass the patent

examination. Cornish I, 715 F. Supp. 2d at 59. Cornish took and

failed the patent examinations administered in July of 2005,

2006, and 2007, though the USPTO’s Office of Enrollment

Discipline (“OED”) had granted all of his requests to make

reasonable accommodations for him to take the exams. Id. He

also sat for and failed the 2008 patent exam, during which he

received “the reasonable medical accommodations for which he had
 -3-

provided sufficient medical documentation establishing a need.”1

(Defs.’ Mem. of P. & A. in Supp. of its Mot. to Dismiss [Dkt.

#11] (“Def.’s First Mem.”) at 8.)

In 2007, Cornish brought an action against three USPTO

employees in their official capacities, challenging the

defendants’ decision to deny his reinstatement request in 2005

and alleging various constitutional and statutory violations.

See Cornish I, 715 F. Supp. 2d at 60. He later amended his

complaint to add Bivens2 claims and challenge the USPTO’s “Final

Rules . . . that governed patent applicants’ process for

protecting inventions.” Id. Summary judgment was granted in

favor of the defendants as to Cornish’s reinstatement claims

“[b]ecause Cornish . . . 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,” id. at 58, which requires that disabled individuals receive

1
Cornish was provided 14-point font on the examination and
answer sheets, magnifiers for reading the Manual of Patent
Examining Procedure, additional lighting, a separate testing
room, and additional time to take the exam spread out over two
days instead of the standard one day. (Defs.’ First Mem. at 8-
9.) Among other requested accommodations, Cornish was not
provided a human reader, a closed circuit television, or access
to his corrected 2005, 2006, and 2007 examinations, nor was he
permitted to retake the three past patent bar examinations an
unlimited number of times. (Id. at 8.)
2
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971), recognized a cause of action
against individual federal employees for constitutional
violations committed while carrying out their official duties.
 -4-

“‘reasonable accommodations’ that permit them to have access to

and take a meaningful part in public services and public

accommodations.” Id. at 65. His remaining claims were dismissed

under Federal Rule of Civil Procedure 12(b)(6) for failure to

state a claim upon which relief can be granted. Id. at 58.

In 2008, before he received his 2008 exam results, Cornish

filed a petition and addendum with the OED Director. (Def.’s

First Mem. at 9; see also Exs. 18, 19.) The petition and

addendum requested that the OED reconsider the reasonable

accommodations provided to him during the July 2008 patent

examination, and requested reinstatement to the patent register

by either waiver of the requirement that he pass the examination

or permission to retake the identical examination an unlimited

number of times. (Id. at 9.) Cornish also “generally re-

asserted the same causes of actions presented in Cornish I” in

his petition.3 (Id.) The OED director denied Cornish’s petition

on November 6, 2008. (Id. at 10.) The Acting USPTO Director’s

designate affirmed the decision on March 31, 2009 and later

denied Cornish’s request for reconsideration. (Id. at 11.)

In this action seeking declaratory and injunctive relief and

damages, Cornish challenges as an unconstitutional taking the

3
While his petition to the OED Director was pending, Cornish
filed an additional petition with the acting USPTO Director,
repeating the same challenges to the OED decisions. (Defs.’
First Mem. at 9-10.)
 -5-

USPTO’s denial of his request for reinstatement. (See, e.g., Am.

Compl. at 63, 80, 93, 96-97, 101, 106.) He also challenges the

USPTO’s application of the “Final Rules” to him as

unconstitutional under the Ex Post Facto and Bill of Attainder

Clauses (Am. Compl. at 63-65, 75), asserts a Bivens claim against

USPTO employees in their individual and official capacities based

upon purported First Amendment and due process violations (id. at

63, 67), and seeks to re-take the patent exam an unlimited number

of times (id. at 71). Finally, Cornish brings common law claims

for tortious “interference with attorney-client relationships[,]”

fraud, and deceit. (See, e.g., id. at 73, 90; see also Defs.’

Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss Am. Compl. or,

in the Alternative, for Summ. J. [Dkt. #23] (“Defs.’ Second

Mem.”) at 10.) The defendants now move to dismiss the Amended

Complaint under Federal Rules of Civil Procedure 12(b)(1)-(6) or,

in the alternative, for summary judgment.

DISCUSSION

I. BIVENS CLAIMS

Cornish’s amended complaint seeks unspecified Bivens damages

against the defendants in their individual and official

capacities. (Am. Compl. at 83-84, 90.) The defendants move to

dismiss the individual capacity claims for, among other things,

failure to effect proper service, improper venue, and lack of
 -6-

personal jurisdiction.2 (Defs.’ First Mem. at 12-16.) See also

Fed. R. Civ. P. 12(b)(2), (3), (5). They also argue that

Cornish’s official capacity claims, construed as claims “against

the government itself” (Defs.’ First Mem. at 12 n.5), should be

dismissed for failure to “identify a waiver of sovereign immunity

for his monetary claims.” (Id. at 29.)

A. Individual capacity claims

Cornish personally attempted to serve process upon defendant

John Doll, the then-Director of the USPTO, and Harry Moatz, the

then-Director of the USPTO’s OED, by certified mailings to their

offices of employment. (See Defs.’ First Mem. at 14; see also

Return of Serv. Aff. [Dkt. #3].) Doll’s return receipt bears the

signature “Lennox Cooper,” and Moatz’s is unsigned. Cornish

filed no proof of service upon defendant James Toupin, the then-

General Counsel.

The defendants have moved to dismiss the amended complaint

for insufficiency of service of process. See Fed. R. Civ. P.

12(b)(5). “‘Upon such a motion, the plaintiff [must] establish[]

that []he has properly effected service’ as is required under

Rule 4.” Strong-Fischer v. Peters, 554 F. Supp. 2d 19, 23

2
Cornish’s failure to establish personal jurisdiction over the
individually-named defendants obviates any need to discuss
additional grounds for dismissal of the individual capacity
claims, such as special factors counseling against creation of a
Bivens remedy (Defs.’ First Mem. at 17-20) and failure to state a
claim for which relief can be granted (id. at 20-26).
 -7-

(D.D.C. 2008) (citation omitted). “[S]ervice[] . . . cannot be

effected by a party” since “Rule 4(c)(2) provides that ‘[a]ny

person who is at least 18 years old and not a party may serve a

summons and complaint.’” Judd v. F.C.C., 276 F.R.D. 1, 6 (D.D.C.

2011) (citing Fed. R. Civ. P. 4(c)(2)) (emphasis added). Neither

may an individual defendant be served “at his place of business.”

Young v. Fed. Bureau of Prisons, 825 F. Supp. 2d 234, 239 (D.D.C.

2011). Instead, “Rule 4(e)(2) requires that service upon

defendants sued in their individual capacities be effected either

personally, by leaving the complaint and summons at the dwelling

or usual place of abode, or by delivery to an agent lawfully

authorized to receive service.” Williams v. Court Services and

Offender Supervision Agency for D.C., 840 F. Supp. 2d 192, 199

n.3 (D.D.C. 2012) (citing Fed. R. Civ. P. 4(e)(2)).

Here, Cornish’s service of process was insufficient. He

personally tried to serve two of the three individually-named

defendants, and did so by mailing process to them at their place

of employment. Moatz’s unsigned return receipt does not show

that Moatz received process, and Cornish provides no evidence

that anyone named Lennox Cooper was authorized to accept service

of process as Doll’s agent. Cornish supplies no proof at all of

personal service upon Toupin. Although “pro se litigants are

allowed more latitude than litigants represented by counsel to

correct defects in service of process and pleadings,” Nellis v.
 -8-

Gonzales, Civil Action No. 06-1704 (CKK), 2007 WL 1033517, at *2

(D.D.C. Mar. 30, 2007); see also Freeman v. Fallin, 210 F.R.D.

255, 256 (D.D.C. 2002) (granting unrepresented plaintiffs “a

brief extension of time to perfect service”), no such latitude is

warranted here. The defendants alerted Cornish to a defect in

service as early as 2009, but he has shown no subsequent effort

to correct it.

Cornish’s failure to properly effect personal service of

process upon the defendants also deprives the court of personal

jurisdiction over the defendants in their individual capacities.

Johnson v. Williams, Civil Action No. 05-2315 (RBW), 2006 WL

2788985, at *3 (D.D.C. Sept. 26, 2006); see also Simpkins v.

D.C., 108 F.3d 366, 369 (D.C. Cir. 1997). “In a Bivens action,

the defendants must be personally served as individuals in order

for a court to have jurisdiction over them. . . . The failure to

effect individual service is fatal to a Bivens claim.” Paolone

v. Mueller, Civil Action No. 05-2300 (JDB), 2006 WL 2346448, at

*3 (D.D.C. Aug. 11, 2006). Cornish bears “the burden of

establishing the court’s personal jurisdiction over” the

defendants. Day v. Corner Bank (Overseas) Ltd., 789 F. Supp. 2d

150, 155 (D.D.C. 2011). Because “it is undisputed that [the]

defendants . . . have not been properly served under Rule 4(e),”
 -9-

Paolone, 2006 WL 2346448, at *3, the individual capacity claims

will be dismissed.3

B. Official capacity claims

“It is well established that Bivens remedies do not exist

against officials sued in their official capacities.” Kim v.

United States, 632 F.3d 713, 715 (D.C. Cir. 2011). Claims

brought against federal officials in their official capacities

“are treated as if they were brought against the federal

government itself.” Morton v. Bolyard, 810 F. Supp. 2d 112, 115

(D.D.C. 2011) (citing Kentucky v. Graham, 473 U.S. 159, 165–66

(1985)). However, “‘it is axiomatic that the United States may

not be sued without its consent[,] that the existence of consent

is a prerequisite for jurisdiction,’” Morton, 810 F. Supp. 2d at

115 (quoting United States v. Mitchell, 463 U.S. 206, 212

(1983)), and that, “‘[a]bsent a waiver, sovereign immunity

shields the Federal Government and its agencies from suit.’” Id.

at 116 (quoting FDIC v. Meyer, 510 U.S. 471, 475 (1994)). Since

the federal government “has not expressly waived its sovereign

immunity for suits brought under Bivens[,]” sovereign immunity

3
Cornish “has not contested, and therefore has conceded,
defendants’ argument that this venue is improper for litigating
[his] Bivens claim[s,]” which should be “brought in the judicial
district where a substantial part of the events or omissions
giving rise to the claim occurred[.]” Mullen v. Bureau of
Prisons, 843 F. Supp. 2d 112, 116-17 (D.D.C. 2012). The Bivens
claims therefore are subject to dismissal for improper venue as
well. See id. (granting motion to dismiss Bivens claim).
 -10-

bars Cornish’s claims against the individually-named defendants

in their official capacities. Young, 825 F. Supp. 2d at 239

(citing Meyer, 510 U.S. at 484, and Perkins v. Ashcroft, 275 F.

App’x 17 (D.C. Cir. 2008)). Thus, the court lacks subject matter

jurisdiction to hear Cornish’s official capacity claims.

II. TAFAS CLAIMS

As he did in Cornish I, Cornish challenges as

unconstitutional the USPTO’s August 2007 “Final Rules” and seeks

a declaratory judgment to that effect. (Am. Compl. at 75.) In

Tafas v. Dudas, 541 F. Supp. 2d 805 (E.D. Va. 2008), “the

plaintiffs challenged the [validity of the] Final Rules.”

Cornish I, 715 F. Supp. 2d at 66. “During the course of the

Tafas litigation, however, the USPTO rescinded the Final Rules

and the litigation was dismissed as moot.” Id. (citing Tafas v.

Kappos, 586 F.3d 1369, 1371 (Fed. Cir. 2009). Here, Cornish’s

amended complaint refers repeatedly to the Tafas litigation and

the “Final Rules published in 72 Fed. Reg. 46,716 (Aug. 21,

2007).” (See, e.g., Am. Compl. at 63-64, 113-15; see also id. at

169-76, 182, 184.) However, the defendants assert that these

“repeated references . . . make no sense,” because “[n]either the

Final Rules nor the Tafas litigation have anything to do with a

practitioner seeking reinstatement to the PTO roster of

registered practitioners.” (Defs.’ Second Mem. at 8.) Assuming

that the Final Rules are linked to Cornish’s attempted
 -11-

reinstatement, the defendants argue that his claims should be

dismissed as moot. (Id. at 9.)

“It is a basic constitutional requirement that a dispute

before a federal court be ‘an actual controversy . . . extant at

all stages of review, [and] not merely at the time the complaint

is filed.’” Newdow v. Roberts, 603 F.3d 1002, 1008 (D.C. Cir.

2010) (quoting Steffel v. Thompson, 415 U.S. 452, 459 n.10

(1974)) (alteration in original). “‘Even where litigation poses

a live controversy when filed,’ a federal court must ‘refrain

from deciding it if events have so transpired that the decision

will neither presently affect the parties’ rights nor have a

more-than-speculative chance of affecting them in the future.’”

Initiative & Referendum Inst. v. U.S. Postal Svce., No. 10-5337,

2012 WL 2866306, at *7 (D.C. Cir. July 13, 2012) (quoting Am. Bar

Ass’n v. FTC, 636 F.3d 641, 645 (D.C. Cir. 2011)). Under the

mootness doctrine, a case is deemed moot if “‘the issues

presented are no longer “live” or the parties lack a legally

cognizable interest in the outcome.’” Honeywell Int’l, Inc. v.

Nuclear Regulatory Comm’n, 628 F.3d 568, 576 (D.C. Cir. 2010)

(quoting Cnty. of L.A. v. Davis, 440 U.S. 625, 631 (1979)).

Thus, “where ‘events outrun the controversy such that the court

can grant no meaningful relief,’” Whitney v. Obama, 845 F. Supp.

2d 136, 138 (D.D.C. 2012) (quoting Del Monte Fresh Produce Co. v.

United States, 570 F.3d 316, 326 (D.C. Cir. 2009) (Sentelle, J.,
 -12-

dissenting) (internal quotation marks and citation omitted)), a

case must be dismissed as moot.

Cornish has made no showing of a live controversy involving

the Final Rules since the USPTO has rescinded them. (See Defs.’

Second Mem. [Dkt. #23] at 8, 10.) Even assuming that the OED’s

denial of Cornish’s request for reinstatement in any way

materially depended upon the Final Rules, Cornish cannot show

that he will be subject to future adverse actions driven by rules

which have been rescinded. Declaratory relief from rescinded

rules would be unavailable. Cornish’s Tafas claims therefore

will be dismissed as moot.

III. COMMON LAW AND CONSTITUTIONAL CLAIMS

Cornish appears to assert common law claims against the

defendants for interference with contract rights, deceit, and

fraud, based upon the March 31, 2009 Order and other actions of

the USPTO and its employees involving his failed efforts to be

reinstated on the patent attorney register. (See Am. Compl.

¶¶ 26-27, 108, 126, 139.) Under 28 U.S.C. § 2679(d), the

defendants filed a certification “substituting the United States

as the sole defendant in place of the individual defendants for

any such common law claims.” (Defs.’ Second Mem. [Dkt. #23] at

10-11, Attached Certification.) Cornish’s amended complaint also

reiterates many of the same constitutional claims alleged in

Cornish I, since he challenges the March 31, 2009 Order and
 -13-

actions of the USPTO as unconstitutional limitations on his First

Amendment right to freedom of speech. (See, e.g., Am. Compl. at

69.)

As is discussed above, “[t]he United States maintains

sovereign immunity except to the extent that it consents to be

sued, and the terms of its consent define a court’s jurisdiction

to hear the suit.” Hornbeck Offshore Transp., LLC v. United

States, 563 F. Supp. 2d 205, 209 (D.D.C. 2008). “[S]uits for

damages against the United States under . . . the Constitution

are barred by sovereign immunity and . . . suits for damages

against the United States under the common law must be brought

pursuant to the limited waiver of sovereign immunity in the

[Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b).]” Benoit

v. United States Dep’t of Agriculture, 608 F.3d 17, 20 (D.C. Cir.

2010). FTCA claims are subject to dismissal, however, where the

plaintiff does not “assert that he has exhausted necessary

administrative remedies under the FTCA, which is a mandatory

prerequisite . . . . ,” and where a plaintiff seeks “a remedy for

Constitutional violations.” McAlister v. Potter, 843 F. Supp. 2d

117, 123 (D.D.C. 2012) (quotation marks and citation omitted).

If, as the defendants suggest, Cornish’s amended complaint

“add[s] a First Amendment claim that the PTO, by excluding him

from the patent bar, would make unlawful his advertising himself

as a member of the patent bar (Defs.’ Second Mem. [Dkt. #23] at 4
 -14-

n.5), then sovereign immunity bars that claim. See Benoit, 608

F.3d at 20-21. Any damages claims asserted against the USPTO and

the United States for alleged violations of the Fourth, Fifth,

and Fourteenth Amendments (see, e.g., Am. Compl. at 129-131)

likewise are barred by sovereign immunity. See Benoit, 608 F.3d

at 20-21. In addition, the FTCA does not waive sovereign

immunity for claims of interference with contract rights. 28

U.S.C. § 2680(h). The D.C. Circuit has held that “‘[c]laims for

interference with prospective business advantage . . . may be

barred as claims arising out of interference with contract

rights[.]’” Peter B. v. U.S., 579 F. Supp. 2d 78, 83 (D.D.C.

2008) (quoting Art Metal-U.S.A., Inc. v. United States, 753 F.2d

1151, 1155 (D.C. Cir. 1985)). Finally, since Cornish has not

pled or asserted exhaustion of remedies as to his fraud or deceit

claims, neither of those claims falls under the limited waiver

contemplated by the FTCA. Cornish’s common law and

constitutional claims against the government therefore will be

dismissed for lack of subject matter jurisdiction.

IV. REINSTATEMENT CLAIM

Throughout the Amended Complaint, Cornish asserts many of

the same claims he litigated in Cornish I. Cornish also

incorporates by reference all of the causes of action and
 -15-

allegations set forth in that previous case. (See, e.g., Am.

Compl. ¶¶ 106-07.)4

“[T]he doctrine of res judicata holds that a judgment on the

merits in a prior suit bars a second suit involving identical

parties or their privies based on the same cause of action.”

Apotex, Inc. v. U.S. FDA, 393 F.3d 210, 217 (D.C. Cir. 2004)

(citing Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir. 2002)). This

doctrine “plays a central role in advancing the ‘purpose for

which civil courts have been established, the conclusive

resolution of disputes within their jurisdictions.’” Apotex, 393

F.3d at 217 (quoting Montana v. United States, 440 U.S. 147, 153

(1979)). Res judicata “protects [parties’] adversaries from the

expense and vexation attending multiple lawsuits, conserves

judicial resources, and fosters reliance on judicial action by

minimizing the possibility of inconsistent decisions.” Montana,

440 U.S. at 153-54. The doctrine need not be argued by the

parties, as a court “may raise the res judicata preclusion

defense sua sponte,” Rosendahl v. Nixon, 360 F. App’x 167, 168

(D.C. Cir. 2010) (citing Arizona v. California, 530 U.S. 392,

4
The defendants argued that these claims should be dismissed
under Rule 12(b)(6) for failure to state a claim upon which
relief can be granted, as Cornish “is not entitled to seek
duplicative recovery for the same alleged injuries.” (Defs.’
First Mem. [Dkt. #11] at 29.) However, both the defendants’
motion to dismiss the complaint and motion to dismiss the amended
complaint were filed before the decision in Cornish I was issued.
Therefore, the defendants could not argue at the time of filing
for dismissal based on res judicata.
 -16-

412–13 (2000)); see also Brown v. D.C., 514 F.3d 1279, 1285–86

(D.C. Cir. 2008)). “A ‘district court may apply res judicata

upon taking judicial notice of [a] [party's] previous case.’”

Hiligh v. Quintana, Civil Action No. 12-497 (RWR), 2012 WL

1635242, at *1 (D.D.C. May 8, 2012) (quoting Tinsley v. Equifax

Credit Info. Svces., Inc., No. 99–7031, 1999 WL 506720 (D.C. Cir.

June 2, 1999) (per curiam)) (alteration in original). In

considering the scope of a “cause of action,” the D.C. Circuit

“has adopted the Second Restatement’s ‘transactional’

approach[.]” Stanton v. D.C. Court of Appeals, 127 F.3d 72, 78

(D.C. Cir. 1997); see also Restatement (Second) of Judgments

§ 24(1) (1982). “A ‘cause of action, for purposes of [res

judicata], comprises all rights of the plaintiff to remedies

against the defendant with respect to all or any part of the

transaction, or series of connected transactions, out of which

the action arose.’” Mwabira-Simera v. Sodexho Marriott Mgmt.

Svces., 786 F. Supp. 2d 395, 397 (D.D.C. 2011) (quoting Stanton,

127 F.3d at 78 (internal quotation marks and citation omitted)).

In determining “[w]hat factual groupings constitute[] a

transaction, and what groupings constitute a series[,]” courts

consider “whether the facts [a]re related in time, space, origin,

or motivation, whether they formed a convenient trial unit, and

whether their treatment as a unit conforms to the parties’
 -17-

expectation, business understanding or usage.” Restatement

(Second) of Judgments § 24(2).

An argument to dismiss a claim on grounds of res judicata is

analyzed under Federal Rule of Civil Procedure 12(b)(6) regarding

failure to state a claim upon which relief can be granted. Po

Kee Wong v. U.S. Solicitor Gen., 839 F. Supp. 2d 130, 136 (D.D.C.

2012). In considering a Rule 12(b)(6) argument, a court accepts

as true a complaint’s factual allegations, Sierra Club v.

Jackson, 648 F.3d 848, 855 (D.C. Cir. 2011), “giving [the

plaintiff] the benefit of every reasonable inference drawn from

the well-pleaded facts[,]” Long v. Safeway, Inc., Civil Action

No. 11-0768 (BJR), 2012 WL 344756, at *2 (D.D.C. Feb. 3, 2012).

However, “[i]f 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.” Cornish I, 715

F. Supp. 2d at 61 (citing Bell Atl. Corp. v. Twombly, 550 U.S.

544, 556 (2007)).

Here, the OED’s March 31, 2009 opinion and its initial

denial of Cornish’s request for reinstatement form part of the

same series of events within the meaning of Stanton. See

Stanton, 127 F.3d at 78. The decisions issued from the same

agency against the same petitioner, and rejected the same request

for reinstatement. Because Cornish’s reinstatement claim against

the USPTO already has been dismissed on the merits, see Cornish
 -18-

I, 715 F. Supp. 2d at 62-64, and because the facts underlying

that claim are part of the same series of events as those

underlying the instant reinstatement claim, the instant

reinstatement claim is barred under res judicata and will be

dismissed.

CONCLUSION

The court lacks personal jurisdiction over the individual

defendants because none was properly served. Cornish’s Tafas

claim is moot. His official capacity Bivens claims and common

law and constitutional claims against the government are barred

by sovereign immunity. Res judicata bars his claim for

reinstatement. Accordingly, the defendants’ motion to dismiss

will be granted. A final order accompanies this memorandum

opinion.

SIGNED this 15th day of August, 2012.

/s/
RICHARD W. ROBERTS
United States District Judge