NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FENG LI,
Plaintiff-Appellant
v.
JOSEPH MATAL, PERFORMING THE FUNCTIONS
& DUTIES OF THE UNDER SECRETARY OF
COMMERCE FOR INTELLECTUAL PROPERTY
AND DIRECTOR, U.S. PATENT & TRADEMARK
OFFICE, UNITED STATES PATENT AND
TRADEMARK OFFICE,
Defendants-Appellees
______________________
2017-1684
______________________
Appeal from the United States District Court for the
Eastern District of Virginia in No. 1:15-cv-00668-AJT-
IDD, Judge Anthony J. Trenga.
______________________
Decided: August 8, 2017
______________________
FENG LI, New York, NY, pro se.
ANDREW SUN HAN, Office of the United States Attor-
ney for the Eastern District of Virginia, Alexandria, VA,
for defendants-appellees. Also represented by DANA J.
2 LI v. MATAL
BOENTE; NATHAN K. KELLEY, THOMAS W. KRAUSE, Office of
the Solicitor, United States Patent and Trademark Office,
Alexandria, VA.
______________________
Before PROST, Chief Judge, CLEVENGER, and STOLL,
Circuit Judges.
PER CURIAM.
Feng Li appeals from the decision of the United States
District Court for the Eastern District of Virginia grant-
ing the motion of the United States Patent and Trade-
mark Office (“USPTO”) and the Director of the USPTO
(collectively, “Appellees”) to dismiss Mr. Li’s complaint for
lack of subject matter jurisdiction and failure to state a
claim, thereby affirming the USPTO’s decision to exclude
Mr. Li from practice before the USPTO. Li v. Matal, No.
15-cv-668 (E.D. Va. Jan. 22, 2016). We affirm.
I
In 2005, Mr. Li took over the representation of a
group of individuals in litigation regarding a real estate
transaction in New York. After successfully obtaining a
judgment for his clients, Mr. Li disagreed with his clients
on the amount of attorney’s fees he was owed, resulting in
his clients filing suit in New Jersey state court. Knowing
the fees were in dispute, Mr. Li transferred $1.2 million of
the judgment into trust funds in his children’s names.
The New Jersey Office of Attorney Ethics determined that
Mr. Li violated the New Jersey Rules of Professional
Conduct by taking possession of client funds he knew to
be disputed. In 2013, the Supreme Court of New Jersey
disbarred Mr. Li from the practice of law based on attor-
ney misconduct.
In 2014, the Director of the USPTO’s Office of En-
rollment and Discipline initiated reciprocal discipline
proceedings against Mr. Li based on his disbarment in the
LI v. MATAL 3
State of New Jersey. The USPTO Director then issued a
Notice and Order pursuant to 37 C.F.R. § 11.24, informing
Mr. Li of the possibility that he would be excluded from
practice before the USPTO. Mr. Li’s response to the
Notice and Order did not dispute the fact that he had
been disbarred in New Jersey, but rather argued that
reciprocal discipline by the USPTO was not justified
because the New Jersey Supreme Court did not have
jurisdiction to disbar him based on his conduct in New
York. He further argued that the New Jersey Supreme
Court’s actions violated the due process, equal protection,
and Ex Post Facto clauses of the U.S. Constitution. On
April 28, 2015, the Director of the USPTO issued a final
order pursuant to 37 C.F.R. § 11.24, excluding Mr. Li from
practice before the USPTO. The USPTO Director careful-
ly applied § 11.24 and found that Mr. Li failed to meet his
burden to show by clear and convincing evidence that: (1)
the New Jersey disciplinary process was “so lacking in
notice or opportunity to be heard;” (2) there was an “in-
firmity of proof” establishing his conduct; or (3) a “grave
injustice” would result from his disbarment. Appx. 156-
63.
On May 26, 2015, Mr. Li filed a complaint against
Appellees in the District Court for the Eastern District of
Virginia. His complaint set forth seven causes of action,
covering a panoply of claims under various civil rights
statutes. On November 16, 2015, Appellees filed motions
to dismiss the complaint for lack of subject matter juris-
diction and failure to state a claim. Construing Mr. Li’s
complaint as a petition under 35 U.S.C. § 32 for judicial
review of the USPTO’s decision to exclude him from
appearing before that office, Appellees also filed a re-
sponse to the petition. Despite Appellees having served
Mr. Li and filed with each motion a copy of a formal
Roseboro notice informing Mr. Li of his right to file an
opposition and consequences of failing to do so, Mr. Li did
not file any opposition.
4 LI v. MATAL
A hearing was held on Appellees’ motions to dismiss
on January 22, 2016. Mr. Li failed to appear. Finding
that no good cause existed to excuse Mr. Li’s failure to
oppose Appellees’ motions, the court proceeded with the
hearing and granted the motions to dismiss. The court
then affirmed the USPTO’s final order excluding Mr. Li
from practice. Recognizing Mr. Li’s pro se status, the
court broadly construed the complaint as a request under
35 U.S.C. § 32 for judicial review of the USPTO’s decision
to impose reciprocal discipline based on his disbarment in
New Jersey. The district court held that § 32 is “the
exclusive mechanism by which to challenge the actions of
the USPTO with respect to the reciprocal discipline that
was imposed.” 1/22/16 Hearing Transcript 6:1–4, Dkt. No.
39 (“Tr.”). The district court affirmed the USPTO’s deci-
sion, holding that its “findings and resulting reciprocal
discipline against the plaintiff [were] not arbitrary and
capricious,” and that “those findings were fully supported
by the record.” Id. at 6:24–7:4. Mr. Li filed a motion for
reconsideration of the court’s dismissal order and the
district court denied that motion.
Mr. Li appealed to the Fourth Circuit. Concluding
that it lacked appellate jurisdiction over a claim of the
type asserted by Mr. Li, the Fourth Circuit transferred
the appeal to this court pursuant to 28 U.S.C. § 1631.
Order, Li v. Lee, No. 16-1569 (4th Cir. Feb. 23, 2017).
Regardless of how Mr. Li styled the complaint, his claim
for review of the USPTO’s exclusion of Mr. Li from prac-
tice before the USPTO constitutes a request for judicial
review under 35 U.S.C. § 32. We have jurisdiction pursu-
ant to 28 U.S.C. § 1295(a)(1).
II
Judicial review of a disciplinary action taken by the
USPTO is governed by the provisions of the Administra-
tive Procedure Act. Bender v. Dudas, 490 F.3d 1361,
1365–66 (Fed. Cir. 2007). A disciplinary decision will be
LI v. MATAL 5
upheld unless it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” Id.
(quoting 5 U.S.C. § 706). Our review of a district court’s
decision on a petition brought pursuant to 35 U.S.C. § 32
is de novo, “reapplying the standard” applied by the
district court under the APA. Sheinbein v. Dudas, 465
F.3d 493, 495 (Fed. Cir. 2006). This court applies the rule
of the regional circuit to resolve the question whether a
Rule 12(b) motion was properly granted. Superior Indus.,
LLC v. Thor Global Enters Ltd., 700 F.3d 1287, 1292 (Fed.
Cir. 2012). The Fourth Circuit reviews de novo a district
court’s decision granting a motion to dismiss. Sucampo
Pharm., Inc. v. Astellas Pharma, Inc., 471 F.3d 544, 550
(4th Cir. 2006).
We first address the dismissal of Mr. Li’s various civil
rights claims, including claims under 42 U.S.C. §§ 1981,
1983, and 1985 and claims for violations of multiple
Constitutional Amendments. After reviewing “these
causes of action in detail and the facts alleged to support
them,” the district court concluded that Mr. Li “failed to
allege facts that make any of these claims plausible with
respect to the challenged actions by the [USPTO].” Tr. at
5:15–20. We need not decide whether any of Mr. Li’s
arguments on appeal were waived by his failure to re-
spond to the dismissal motions because we agree with the
district court that the complaint fails to present facts
sufficient to survive the motion to dismiss stage. We
therefore affirm the district court’s granting of Appellees’
motions to dismiss.
We next turn to the district court’s decision to affirm
the USPTO’s final order excluding Mr. Li from practice
before the office. Because of Mr. Li’s pro se status, the
district court construed his complaint as a request under
§ 32, despite his failure to explicitly request judicial
review of the USPTO’s decision. Tr. at 5:21-6:1. The
court found that the administrative record proved that
“the USPTO engaged in a comprehensive and thorough
6 LI v. MATAL
analysis of the applicable factors governing whether to
impose reciprocal discipline.” Id. at 6:12–14. Specifically,
the administrative record shows that the USPTO properly
considered the factors as set forth in 37 C.F.R. § 11.24: (1)
“whether the New Jersey disciplinary proceedings were so
lacking in notice or opportunity to be heard as to consti-
tute a deprivation of due process;” (2) “whether there was
an infirmity of proof establishing the conduct as to give
rise to a clear conviction that the USPTO should not
discipline the plaintiff;” and (3) “whether the imposition of
the same discipline by the USPTO would result in grave
injustice.” Id. at 6:15–23. Following its thorough analy-
sis, the district court determined that the USPTO’s “find-
ings and resulting reciprocal discipline against the
plaintiff [was] not arbitrary and capricious,” and that
“those findings were fully supported by the record.” Id.
at. 6:24–7:4. Mr. Li has not presented any arguments on
appeal to convince us that the USPTO’s decision to im-
pose reciprocal discipline was arbitrary or capricious and
we therefore affirm the district court’s decision.
CONCLUSION
Because we agree with the district court that Mr. Li
failed to allege any facts sufficient to withstand a motion
to dismiss, we affirm the court’s granting of Appellees’
motions to dismiss. We also agree with the district court’s
characterization of the complaint as a request under § 32
and conclude that Mr. Li failed to show that the USPTO’s
decision to exclude him from practice before the office was
arbitrary and capricious. We affirm the district court’s
dismissal of this action.
AFFIRMED
COSTS
No costs.