Shahriar Behnamian v. Coke Morgan Stewart, Acting Under Secretary of Commerce for Intellectual Property

N OTE : This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SHAHRIAR BEHNAMIAN,
Plaintiff-Appellant
v.
COKE MORGAN STEWART, ACTING UNDER
SECRETARY OF COMMERCE FOR
INTELLECTUAL PROPERTY AND ACTING
DIRECTOR OF THE UNITED STATES PATENT
AND TRADEMARK OFFICE, UNITED STATES
PATENT AND TRADEMARK OFFICE,
Defendants-Appellees
______________________
2024-1139
______________________
Appeal from the United States District Court for the
Eastern District of Virginia in No. 1:21-cv-01043-RDA-
IDD, Judge Ivan D. Davis.
______________________
Decided: February 26, 2025
______________________
SHAHRIAR BEHNAMIAN, Washington, DC, pro se.
MATTHEW JAMES MEZGER , United States Attorney’s Of-
fice for the Eastern District of Virginia, United States
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BEHNAMIAN v. STEWART 2
Department of Justice, Alexandria, VA, for defendants-ap-
pellees. Also represented by J ESSICA D. ABER .
______________________
Before R EYNA , T ARANTO, and C UNNINGHAM , Circuit
Judges.
P ER C URIAM .
Appellant Shahriar Behnamian appeals from a deci-
sion of the United States District Court for the Eastern Dis-
trict of Virginia, Behnamian v. Hirshfeld, No. 21-cv-1043-
RDA-IDD, 2022 WL 1227996 (E.D. Va. Apr. 26, 2022) (“De-
cision”), appeal transferred sub nom. Behnamian v. Vidal,
No. 22-1581, 2023 WL 8170728 (4th Cir. Nov. 6, 2023). For
the reasons below, we affirm.
I. B ACKGROUND
Mr. Behnamian worked as a patent examiner with the
United States Patent and Trademark Office (“USPTO”)
from January 21, 2009, until May 21, 2020. Decision at *1;
S. App’x 42 ¶ 40.1 In 2019, Mr. Behnamian alleges that his
direct supervisor, Charles Appiah, “began randomly, with-
out notice to [Mr. Behnamian], and without [Mr. Behna-
mian]’s approval issuing notices to patent applicants
indicating that [Mr. Behnamian]’s last [Office Action] was
vacated and a new [Office Action] would be forthcoming.”
S. App’x 42 ¶ 42. Mr. Behnamian notified the Technology
Center 2600 Director, Mr. Diego Gutierrez, about this is-
sue. S. App’x 42–43 ¶ 42. Mr. Behnamian alleges that
Mr. Appiah’s “behavior and tone changed in a negative
manner toward [Mr. Behnamian]” after he complained to
Mr. Gutierrez. S. App’x 43 ¶ 43. In 2019, Mr. Behnamian
also requested leave from work to remain near his preg-
nant wife, Decision at *1; S. App’x 44 ¶ 45, but Mr. Appiah
1 “S. App’x” refers to the supplemental appendix,
ECF No. 11, filed by the Defendants-Appellees.
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BEHNAMIAN v. STEWART 3
denied this request. Decision at *1; S. App’x 44 ¶ 45.
Mr. Behnamian alleges that he contacted four Technology
Center 2600 Directors, including Mr. Gutierrez, about this
denial. Decision at *1; S. App’x 44 ¶ 46. Mr. Gutierrez
eventually granted the leave request. Decision at *1; S.
App’x 44 ¶ 46.
Mr. Behnamian contends that Mr. Appiah subse-
quently “increased his retaliation efforts.” Decision at *2;
S. App’x 44 ¶ 48. Specifically, Mr. Behnamian alleges that
Mr. Appiah began scrutinizing his work and monitoring his
time and attendance more closely than he had done previ-
ously. Decision at *2; S. App’x 44 ¶ 48. Mr. Behnamian
also alleges that Mr. Appiah removed Mr. Behnamian’s ac-
cess to the Record Sharing Platform. Decision at *2;
S. App’x 44 ¶ 48. On October 8, 2019, Mr. Appiah proposed
suspending Mr. Behnamian for absence without leave
(“AWOL”) based on a finding that Mr. Behnamian was
AWOL for 30 hours and 15 minutes between April 28, 2019,
and June 8, 2019. Decision at *2 n.2; S. App’x 45 ¶ 51; S.
App’x 50–51 ¶ 69. Mr. Behnamian was ordered to serve a
five-day suspension beginning on March 9, 2020. Decision
at *2; S. App’x 46 ¶ 54.
After the suspension, Mr. Behnamian resumed his job
as a patent examiner. S. App’x 62–63 ¶ 97. However, dur-
ing the week of May 11, 2020, Mr. Behnamian submitted a
two-week notice in advance of his intended resignation
from the job. Decision at *2; S. App’x 46 ¶ 55. On May 18,
2020, Mr. Behnamian applied to practice before the United
States Patent and Trademark Office (“USPTO”). Decision
at *2; S. App’x 99–100. Based on his status as a former
USPTO employee, Mr. Behnamian sought a waiver of ex-
amination. Decision at *2; S. App’x 99. Part of the appli-
cation for registration to practice before the USPTO
contained questions regarding “[c]andor and truthfulness.”
S. App’x 100. Relevant here, Question 17 asked the follow-
ing:
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BEHNAMIAN v. STEWART 4
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?
Decision at *2; S. App’x 100.
Mr. Behnamian responded “NO” to Question 17. Deci-
sion at *2; S. App’x 100. On May 21, 2020, Mr. Behnamian
officially resigned from his position with the USPTO. De-
cision at *1; S. App’x 46 ¶ 55. Following the submission of
his application, the Office of Enrollment and Discipline
(“OED”) asked for information from Mr. Gutierrez regard-
ing Mr. Behnamian’s moral character and reputation, pur-
suant to 37 C.F.R. § 11.8(a). Decision at *2; S. App’x 119;
S. App’x 799. In response to the request, the OED learned
of Mr. Behnamian’s suspension. S. App’x 797–99. The
OED sought additional information from Mr. Behnamian
regarding the “nature and circumstances of [the] suspen-
sion.” S. App’x 837; Decision at *2. Mr. Behnamian main-
tained that the allegation that he had been paid for hours
not worked had never been proven to be true. S. App’x 852.
However, Mr. Behnamian acknowledged that he never ap-
pealed his suspension. S. App’x 853. The OED found that
Mr. Behnamian “did not comply with the exhortation to
candor prefacing the Background Information section of
the Application.” S. App’x 1086; Decision at *2.
On January 15, 2021, the OED Director denied
Mr. Behnamian’s application to register to practice in pa-
tent cases before the USPTO. Decision at *2; S. App’x
1104–06; S. App’x 1109–15. Mr. Behnamian petitioned for
review of this decision to the Director of the USPTO, who
affirmed the denial of Mr. Behnamian’s application on Au-
gust 9, 2021. Decision at *2; S. App’x 430–56; S. App’x 138–
53; S. App’x 459–60. On September 7, 2021, Mr. Behna-
mian contacted the USPTO’s Office of Equal Employment
Opportunity and Diversity (“OEEOD”) to report the
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BEHNAMIAN v. STEWART 5
allegedly retaliatory events that he experienced as a for-
mer USPTO employee from April 2019 through May 2020.
Decision at *2; S. App’x 1177 ¶ 4, 1178 ¶¶ 6–8; S. App’x
1182–83; S. App’x 1186–94.
On September 10, 2021, Mr. Behnamian filed a com-
plaint, which included allegations framed as a petition for
review of the denial of his application for registration to
practice before the USPTO under 35 U.S.C. § 32 and alle-
gations of conduct for which he sought relief under Title
VII of the Civil Rights Act of 1964. Decision at *1; S. App’x
28–87. The district court granted the Defendants’ motion
to dismiss Mr. Behnamian’s complaint under Federal Rule
of Civil Procedure 12(b)(5), concerning insufficient service
of process, and granted the Defendants’ motion for sum-
mary judgment. Decision at *1, 5, 11. The district court
also dismissed Mr. Behnamian’s petition for review. Id.
Mr. Behnamian appeals pro se. We have jurisdiction
under 28 U.S.C. § 1295(a)(1).
II. STANDARD OF REVIEW
We review the dismissal of a complaint for improper
service under the standards set by the regional circuit. See,
e.g., Mobile Acuity Ltd. v. Blippar Ltd., 110 F.4th 1280,
1288 (Fed. Cir. 2024); Intel Corp. v. Commonwealth Sci. &
Indus. Rsch. Organisation, 455 F.3d 1364, 1368–69 (Fed.
Cir. 2006). We also review a district court’s grant of sum-
mary judgment under regional circuit law. Syngenta Crop
Prot., LLC v. Willowood, LLC, 944 F.3d 1344, 1355 (Fed.
Cir. 2019). Under Fourth Circuit law, dismissals under
Rule 12(b)(5) are reviewed for abuse of discretion, Shao v.
Link Cargo (Taiwan) Ltd., 986 F.2d 700, 708 (4th Cir.
1993), and decisions granting summary judgment are re-
viewed de novo, Villa v. CavaMezze Grill, LLC, 858 F.3d
896, 900 (4th Cir. 2017).
“The PTO has statutory authority to suspend or ex-
clude ‘from further practice before the Patent and
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BEHNAMIAN v. STEWART 6
Trademark Office, any person, agent, or attorney shown to
be incompetent or disreputable, or guilty of gross miscon-
duct, or who does not comply with the regulations estab-
lished under section 2(b)(2)(D) of this title.’” Bender v.
Dudas, 490 F.3d 1361, 1365 (Fed. Cir. 2007) (citing 35
U.S.C. § 32). The Administrative Procedure Act (“APA”), 5
U.S.C. §§ 702–706, governs the review of an order of the
USPTO regarding a registration application under 35
U.S.C. § 32. See Bender, 490 F.3d at 1365–66. This court
shall set aside the USPTO’s determination if it is “arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A). We review
the district court’s dismissal of the petition for review (a
matter particular to patent law) de novo, “reapplying the
[APA] standard.” Sheinbein v. Dudas, 465 F.3d 493, 494–
95 (Fed. Cir. 2006).
III. DISCUSSION
A.
The district court did not abuse its discretion by finding
that Mr. Behnamian failed to properly serve the complaint
and summons. See Decision at *5. Rule 4(c)(2) clearly ex-
plains that a party to the underlying lawsuit may not serve
the complaint and summons. Fed. R. Civ. P. 4(c)(2). How-
ever, it is undisputed that Mr. Behnamian personally
served the complaint and summons on Defendants.2 Deci-
sion at *5; Appellant’s Br. 23; S. App’x 91–93. To support
his method of service, Mr. Behnamian argues that he was
informed by the clerk of the court that he properly served
2 Mr. Behnamian’s reliance on E.D. Va. Local Rule
83.5 is unavailing because Mr. Behnamian admits that he
did not comply with the requirement to send a copy of the
summons and the complaint by registered or certified mail
to the agency in accordance with Federal Rule of Civil Pro-
cedure 4(i)(2). Appellant’s Br. 23.
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BEHNAMIAN v. STEWART 7
the complaint and summons.3 Appellant’s Br. 23 (explain-
ing that the Court’s Clerk indicated that “Plaintiff-Appel-
lant was required to either personally serve the Complaint
and Summons or have an appropriate person serve the
Complaint and Summons.” (emphasis added)). Regardless
of the alleged communication with the clerk, which pur-
portedly included having an appropriate person serve the
complaint and summons, Mr. Behnamian still failed to con-
sult the applicable rules and to serve the Defendants
properly. We see no abuse of discretion in the district
court’s determination that neither good cause nor excusa-
ble neglect applies to Mr. Behnamian’s failure to effect
proper service of process. Accordingly, we affirm on this
ground.
B.
Despite the defects above, we also address the merits
of Mr. Behnamian’s petition for review. Mr. Behnamian
raises several issues with the USPTO’s handling of his pe-
tition. First, he argues that the OED Director violated 37
C.F.R. § 11.7(h) when evaluating his moral character by
doing so in a way that deprived Mr. Behnamian of the op-
portunity to be heard. Appellant’s Br. 32–33; Decision at
*9. Most relevant here, this regulation applies to
3 We also grant the motion of the agency to strike
pages 86 through 105 from the Petitioner’s Supplemental
Appendix in ECF No. 20. ECF No. 23. The agency argues
that this court should strike the pages in question, or at
least omit them from consideration because they were
never presented to the district court below. Id. at 2–3. We
agree and do not consider these pages because they were
never presented to the district court. See, e.g., Ballard
Med. Prods. v. Wright, 821 F.2d 642, 643 (Fed. Cir. 1987)
(“An appellate court may consider only the record as it was
made before the district court.”).
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individuals who were “disbarred or suspended from prac-
tice of law or other profession, or [who] ha[ve] resigned in
lieu of a disciplinary proceeding.” 37 C.F.R. § 11.7(h)(4)(i).
The district court correctly assessed that 37 C.F.R.
§ 11.7(h)(4) does not apply to Mr. Behnamian, who was nei-
ther disbarred nor suspended from the practice of any pro-
fession and who did not resign in lieu of a disciplinary
proceeding. See Decision at *9.
Second, Mr. Behnamian disputes the decision of the
agency to suspend him based on the charge that he was
AWOL. Appellant’s Br. 33. Mr. Behnamian asserts that
his suspension was based on the Telework Enhancement
Act Pilot Program work agreement, which he signed after
the alleged AWOL hours. See Decision at *9–10; Appel-
lant’s Br. 31. Here too, the district court did not err. The
suspension decision was instead based on a detailed anal-
ysis of Mr. Behnamian’s time worked and unaccounted-for
time. Decision at *9; S. App’x 182–84.
Next, Mr. Behnamian disputes the OED’s unfavorable
determination regarding his candor. Appellant’s Br. 34;
S. App’x 49–69. We may only review the agency’s final or-
der, but we discern nothing arbitrary or capricious in the
determination that Mr. Behnamian lacked candor. The
agency reasonably determined that, by answering no to
Question 17 and not even disclosing (with an explanation)
the suspension just three months earlier for being AWOL
(which meant he claimed pay for hours he did not work),
Mr. Behnamian at a minimum violated the exhortation to
candor required by the application. See S. App’x 470–74.
Furthermore, Mr. Behnamian faults the agency for not
crediting the letters of recommendation that he submitted.
Appellant’s Br. 17–18, 34. We discern no error in the
agency’s handling of Mr. Behnamian’s credentials and rec-
ommendations, which the district court found are unre-
sponsive to the issue of Mr. Behnamian’s failure to disclose
his suspension. See Decision at *10; S. App’x 473–74.
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IV. C ONCLUSION
In light of the above conclusions, we need not address
the Title VII issues addressed by the district court in its
grant of summary judgment. We have considered
Mr. Behnamian’s remaining arguments and find them un-
persuasive. For the foregoing reasons, we affirm the judg-
ment of the district court.
AFFIRMED
C OSTS
No costs.
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