[00:00:01] Speaker 03:
Our next case for today is 2016-2716 Farrow v. Mattal.

[00:00:44] Speaker 02:
Morning, Your Honor.

[00:00:44] Speaker 02:
May I please record?

[00:00:46] Speaker 02:
My name is John Farrow.

[00:00:47] Speaker 02:
I'm appearing here pro se.

[00:00:50] Speaker 02:
This case arises out of appeal of the denial of my petition for writ of mandamus to the District Court in the Eastern District of Virginia.

[00:01:00] Speaker 00:
Mr. Farrow, why are you unwilling to wait until you get a decision?

[00:01:04] Speaker 02:
Why?

[00:01:05] Speaker 02:
Yeah.

[00:01:06] Speaker 02:
I think that the decision in this case is unfairly predicated on the exclusion

[00:01:14] Speaker 02:
of certain evidence that should have been introduced at the time of the probable cause determination.

[00:01:20] Speaker 00:
But all that would be before the court or whoever is going to review this after the decision.

[00:01:28] Speaker 02:
Respectfully, Your Honor, I don't believe that's correct.

[00:01:31] Speaker 02:
The issue, as I understand it, and I'll have to defer to you in this case, obviously, there was a series of lawsuits filed.

[00:01:43] Speaker 02:
concurrently prosecuted complaints against me.

[00:01:47] Speaker 02:
Now the practice before the OED is fairly rigid in terms of what is required both of myself and of the OED.

[00:02:01] Speaker 00:
They make a record?

[00:02:02] Speaker 02:
That's not quite, it's a simplification, oversimplification of what's required.

[00:02:08] Speaker 02:
When the OED gets a complaint from a client,

[00:02:13] Speaker 02:
They send out a request for information called an RFI.

[00:02:17] Speaker 02:
There's all kinds of litigation with this kind of inquiry.

[00:02:23] Speaker 02:
The inquiry to me requests that I produce information.

[00:02:29] Speaker 02:
And the second paragraph, this is an appendix, page number 201.

[00:02:34] Speaker 02:
I'm reading from the second paragraph.

[00:02:38] Speaker 02:
This is addressed to me.

[00:02:38] Speaker 02:
You understand that the OED must develop

[00:02:41] Speaker 02:
all information regarding the information received, including that information which may justify or exonerate the alleged actions of the registered practitioner or mitigate the seriousness of any violation.

[00:02:54] Speaker 02:
That's what's required in terms of an interpretive decision, as I understand it, of 37 CFR 11.22D.

[00:03:03] Speaker 02:
So the record, as I understand it, which goes to the Committee on Discipline,

[00:03:10] Speaker 02:
mustn't be inclusive of information, which they say has to be there, that will justify, exonerate, or mitigate the seriousness.

[00:03:21] Speaker 03:
Can I make sure I understand procedurally?

[00:03:23] Speaker 03:
11.22D is what has to be considered by the OED investigation in order to form a determination of probable cause.

[00:03:35] Speaker 03:
Is that right?

[00:03:36] Speaker 02:
No.

[00:03:37] Speaker 03:
Oh, no?

[00:03:37] Speaker 03:
OK.

[00:03:38] Speaker 02:
Please cut.

[00:03:40] Speaker 02:
Director is an investigator at this phase of the process.

[00:03:45] Speaker 02:
He doesn't make any determinations.

[00:03:47] Speaker 02:
He is a collector of information.

[00:03:50] Speaker 02:
So the universe of information that he has to collect is defined by, I assume, an interpreted decision which was issued pursuant to 37 CFR 1122D.

[00:04:05] Speaker 02:
And as far as the information requested from me, Your Honor, the information

[00:04:09] Speaker 02:
is to justify, exonerate, or mitigate the seriousness of the charges.

[00:04:15] Speaker 02:
Now, in this case, if we go through the chronology briefly, this has been going on since 2012, outside of this environment.

[00:04:25] Speaker 02:
In 2013, I was sued for malpractice in the Southern District of Florida.

[00:04:32] Speaker 02:
That was in October 2013.

[00:04:33] Speaker 02:
In May of 2014,

[00:04:36] Speaker 02:
I get a bar complaint with the Florida bar and a complaint with the OED.

[00:04:40] Speaker 02:
Identical issues, identical facts, identical complaints.

[00:04:43] Speaker 03:
But I guess I'm still back at the question that Judge Plager asked you initially, which is your argument to us seems to boil down to the investigation was prematurely ended before all of the fact findings in the Florida litigation, which were favorable to you,

[00:05:04] Speaker 03:
could have been included in that record.

[00:05:06] Speaker 03:
I understand, Your Honor.

[00:05:07] Speaker 03:
Is that your argument?

[00:05:08] Speaker 03:
Am I understanding your argument?

[00:05:09] Speaker 03:
That's part of it.

[00:05:11] Speaker 03:
OK, well, but what Judge Plager was suggesting to you is that seems like it could very well be a legitimate complaint about the scope of the investigation, not including all of the evidence it should have.

[00:05:27] Speaker 03:
But I thought his question to you was, but why couldn't you raise exactly that argument

[00:05:32] Speaker 03:
after you get a final decision by the PTO because we get lots of cases in district court where the district court excluded pieces of evidence and we get a judgment that comes up to us and one of the challenges is it was wrong to have excluded that evidence and we have to send it back for a new trial.

[00:05:48] Speaker 02:
This is not analogous to that.

[00:05:49] Speaker 03:
It's not.

[00:05:50] Speaker 03:
No, I don't believe so.

[00:05:51] Speaker 03:
Well, explain why.

[00:05:52] Speaker 02:
Let me explain to you why, if I can.

[00:05:53] Speaker 02:
The petition was denied by the district court because I didn't explain how and why

[00:06:01] Speaker 02:
one of the exceptions to finality or exhaustion would apply.

[00:06:05] Speaker 02:
That's on page six of the opinion.

[00:06:09] Speaker 02:
How and why was documented in the record.

[00:06:12] Speaker 02:
I just ran out of time to explain it.

[00:06:14] Speaker 02:
When the process of the complaint was filed, now the complaint was filed in May by the OED after the probable cause filing.

[00:06:26] Speaker 02:
The complaint was filed by the OED in May of 2015.

[00:06:30] Speaker 02:
There was a trial scheduled in August of 2015.

[00:06:34] Speaker 02:
If this means anything, that the OED must develop a record which includes information to justify exoneration and mitigate, then the OED prematurely concluded its investigation.

[00:06:50] Speaker 00:
Do you have any authority for the proposition that an appellate court can

[00:06:57] Speaker 00:
step in to an administrative agency process and find it erroneous or inadequate prior to the time the agency makes a decision.

[00:07:10] Speaker 00:
That's what's puzzling me about your case, Mr. Farley.

[00:07:15] Speaker 00:
Do you have any authority for that?

[00:07:18] Speaker 02:
The Thunder Basin decision.

[00:07:19] Speaker 02:
The Supreme Court case in Thunder Basin, 510 U.S.

[00:07:22] Speaker 02:
200.

[00:07:24] Speaker 02:
If you read the exceptions

[00:07:27] Speaker 02:
the exceptions to exhaustion and final order appearing on page 2212 to 213.

[00:07:34] Speaker 02:
In this case, I fall within the exceptions.

[00:07:36] Speaker 02:
And that's the argument that I was making to the district court, and I hadn't concluded my argument.

[00:07:42] Speaker 02:
In this case, there's been an administrative determination by the ALJ that my effort to introduce the impropriety or premature conclusion of the investigation

[00:07:56] Speaker 02:
was a determination made by the ALJ that it wasn't an affirmative defense, so it couldn't be asserted as part of the merits determination.

[00:08:03] Speaker 02:
And thus, it was collateral.

[00:08:05] Speaker 02:
Collateral matters where there can't be a meaningful judicial review are subject to the exception of finality and exhaustion.

[00:08:14] Speaker 02:
That's the law.

[00:08:14] Speaker 02:
That's your point.

[00:08:15] Speaker 01:
Are you saying this is an argument that you weren't able to make to the district court?

[00:08:19] Speaker 02:
No, the district court cut me off.

[00:08:20] Speaker 02:
I'm long-winded, as you can tell.

[00:08:22] Speaker 02:
Did you put it in your brief?

[00:08:25] Speaker 01:
Yes, it's in the record.

[00:08:27] Speaker 02:
If I may, Your Honor.

[00:08:28] Speaker 02:
It's in the record to the district court.

[00:08:31] Speaker 02:
There was a declaration that I submitted to the district court.

[00:08:35] Speaker 02:
I lost my notes here.

[00:08:36] Speaker 02:
I'll get it for you in a second.

[00:08:37] Speaker 02:
There was a declaration I submitted to the district court in opposition to the jurisdiction, the challenge to the jurisdiction.

[00:08:44] Speaker 02:
And I said that the issue of failure to conform the investigation to the rules of the OED,

[00:08:55] Speaker 02:
was not going to be entertained within the merits determination and I cited in that, if you'll give me a second I'll find it here, the motion, if the support of information was in the record before the district court it appears at 512 to 535 and the discussions in my brief at pages 28 to 30.

[00:09:17] Speaker 02:
The information which I relied upon is the

[00:09:24] Speaker 02:
and exhibits appearing in my appendix 512 to 535.

[00:09:28] Speaker 02:
That declaration included a copy of my attorney's motion to amend the affirmative defenses and the order by the ALJ denying the motion.

[00:09:42] Speaker 02:
The OED opposed the motion because they said that my affirmative defense challenging the investigation was not compliant

[00:09:54] Speaker 02:
with the rules, 37 CFR, 11.36D.

[00:09:59] Speaker 02:
They took the position that my affirmative defense had no nexus to discipline.

[00:10:05] Speaker 02:
In other words, it wasn't related to an allegation of misconduct.

[00:10:09] Speaker 02:
So under my understanding of the law, if it's not related to the merits, then it's collateral, a collateral matter that cannot be subject to meaningful judicial review, is subject to an exception

[00:10:24] Speaker 02:
to finality and exhaustion.

[00:10:26] Speaker 02:
That's the law.

[00:10:27] Speaker 02:
There are extensive cases listed in the Thunder Basin decision, pages 212 to 213.

[00:10:34] Speaker 02:
My position here is not unique, not exotic.

[00:10:40] Speaker 02:
Where there's no meaningful judicial review possible, there's no exhaustion requirement,

[00:10:48] Speaker 01:
You're saying there's no meaningful review could have happened later.

[00:10:52] Speaker 01:
That's correct.

[00:10:53] Speaker 01:
Had there been a final decision, you would not have been able to raise the argument.

[00:10:58] Speaker 01:
That's correct.

[00:10:58] Speaker 02:
And there's one more point that I want to make, which is very important.

[00:11:02] Speaker 02:
And I didn't raise it initially in my brief, because I missed the legal characterization.

[00:11:10] Speaker 02:
I asserted in my initial brief that the judicial estoppel doctrine applied.

[00:11:14] Speaker 02:
That's incorrect.

[00:11:15] Speaker 02:
What applies is something called administrative estoppel.

[00:11:18] Speaker 02:
which I cited in my reply brief, administrative estoppel.

[00:11:22] Speaker 02:
Administrative estoppel in this case applies because the ALJ in the merits determination, in the merits determination said it was collateral and thus not subject to the review at a later point in time.

[00:11:38] Speaker 00:
You were asking the district court for a mandamus order?

[00:11:42] Speaker 02:
That's correct.

[00:11:43] Speaker 02:
To compel the director

[00:11:48] Speaker 02:
to require the investigation comport with the requirements of the rules, okay?

[00:11:54] Speaker 02:
And I requested an abatement.

[00:11:56] Speaker 02:
I didn't request, I wasn't attacking, which is very important, I wasn't attacking the mayor's determination.

[00:12:02] Speaker 02:
I wasn't, I wasn't indicating that this, that this was a collateral attack on the proceedings.

[00:12:07] Speaker 02:
I just want to reset the clock.

[00:12:09] Speaker 02:
Now why would I want to do that?

[00:12:12] Speaker 02:
It's a real good reason for that.

[00:12:13] Speaker 02:
Because if they have to reset the clock, there's a substantive effect, which is beneficial to me.

[00:12:18] Speaker 02:
Then they're going to refile this thing.

[00:12:19] Speaker 02:
This goes back to 2002.

[00:12:21] Speaker 02:
The nonsense in this patent application goes back to 2002.

[00:12:26] Speaker 02:
There's a statute of limitations that kicks in.

[00:12:29] Speaker 02:
If they have to abate this and have to refile it, this case goes away.

[00:12:34] Speaker 02:
And that's the purpose of my challenging this.

[00:12:38] Speaker 00:
Well, part of the reason it's been going on so long, Mr. Farrow, is because you keep litigating it before they even make a decision.

[00:12:47] Speaker 02:
That's an unfair characterization.

[00:12:50] Speaker 02:
I'm being penalized now to defend myself in this case.

[00:12:52] Speaker 02:
Is that the purpose?

[00:12:54] Speaker 02:
Is that your comment?

[00:12:56] Speaker 02:
I didn't start this.

[00:12:57] Speaker 02:
There were nine or 10 allegations of misconduct.

[00:13:00] Speaker 02:
This case was looked at by the Federal District Court.

[00:13:03] Speaker 02:
It was looked at by the Florida Bar.

[00:13:04] Speaker 02:
Both of them found there was no misconduct.

[00:13:09] Speaker 02:
What the OED did here is they prematurely concluded their investigation.

[00:13:16] Speaker 02:
before the district court had an opportunity to make its findings and rulings.

[00:13:22] Speaker 02:
So they excluded from consideration by the Committee on Discipline findings which were inconsistent.

[00:13:27] Speaker 02:
Ms.

[00:13:27] Speaker 03:
Ferro, you're using up your rebuttal time.

[00:13:29] Speaker 03:
Do you want to save it?

[00:13:32] Speaker 02:
If you have more questions, I prefer to get this issue on the table.

[00:13:37] Speaker 02:
I'll defer now, if you would.

[00:13:39] Speaker 03:
Thank you, ma'am.

[00:13:43] Speaker 03:
Mr. Hahn?

[00:13:48] Speaker 00:
Mr. Hahn, the key question from my viewpoint about this case is are the kinds of concerns he's been expressing, things that will be either taken up by your agency or reviewable on appeal from your agency, or is he right that his position will be precluded because of the agency's unwillingness

[00:14:16] Speaker 00:
to hear the early dismissals of his misconduct stuff.

[00:14:23] Speaker 04:
Your Honor.

[00:14:24] Speaker 04:
Explain that to us.

[00:14:25] Speaker 04:
Absolutely, Your Honor.

[00:14:27] Speaker 04:
And I believe that the former characterization that you put forth is the more accurate view, that Mr. Farah will absolutely have the opportunity to raise all of the objections that he had to both the OED investigation as well as to the underlying disciplinary proceedings that are still ongoing in district court

[00:14:45] Speaker 04:
through a Section 32 complaint if he is ultimately determined to be suspended or excluded.

[00:14:52] Speaker 00:
What is the current status of his case in your agency?

[00:14:57] Speaker 04:
It is currently on a motion for reconsideration of the PTO director's final decision.

[00:15:02] Speaker 04:
I believe that that motion for reconsideration that Mr. Farrow has submitted and he has a right to under the regulations is either currently being briefed or has just finished being briefed.

[00:15:13] Speaker 04:
And therefore, now it would be in the hands of the PTO director to consider that motion and render a decision on that.

[00:15:21] Speaker 04:
And then once that is finalized, if the final decision, which currently does recommend or does impose an eight-month suspension on Mr. Farrow, if that is affirmed on the motion for reconsideration, then we would finally have a final agency action that is reviewable in district court.

[00:15:39] Speaker 00:
He would have a Section 32 appeal to the district court.

[00:15:43] Speaker 04:
he would, Your Honor, assuming that he timely files and that the Section 32 mechanism is here precisely so that he can have review not just of the final decision that would impose some discipline, but as this court has held in the Bender case, he would have the opportunity to also review all

[00:16:00] Speaker 04:
any and all objections that he made throughout the process, going back as far as the OED investigation.

[00:16:06] Speaker 00:
For the record, that's the position of the PTO, that you all would not try to preclude him from raising these issues on appeal to the district court.

[00:16:15] Speaker 00:
Is that correct?

[00:16:16] Speaker 04:
That's correct, Your Honor.

[00:16:17] Speaker 04:
There would be no affirmative preclusion.

[00:16:19] Speaker 04:
Mr. Farrow would absolutely have the opportunity to raise these, assuming that he follows all the proper procedures, such as following the statute of limitations and filing on time and raising claims that are clearly discernible enough

[00:16:31] Speaker 04:
for a court to actually consider this.

[00:16:33] Speaker 04:
The other thing that I would point out.

[00:16:34] Speaker 03:
Just out of curiosity, why didn't the agency just sort of give in to him in this regard earlier on?

[00:16:41] Speaker 03:
You know, district courts sometimes let everything in, right?

[00:16:44] Speaker 03:
Because it's easier.

[00:16:46] Speaker 03:
But in a case like this, it's even more important because there isn't an opposing party that needs to be protected, meaning

[00:16:54] Speaker 03:
It's not like Mr. Farrow is up against a defendant whose rights you have to worry about if you let something in.

[00:17:01] Speaker 03:
Here, this is all only about him.

[00:17:04] Speaker 03:
So why didn't you just let it all in and consider it all?

[00:17:08] Speaker 04:
Well, I would actually have two responses to that, Your Honor.

[00:17:11] Speaker 04:
First is, I would actually disagree that there is no opposing party in this case, because the opposing party here is the public.

[00:17:17] Speaker 04:
the USPTO does have an obligation to defend the public against practitioners who have violated the rules of professional conduct that are clearly set forth in the regulations.

[00:17:27] Speaker 03:
But how is the public going to be harmed by you letting in all the evidence about whether the exact incidents that you're considering punishing him for are or are not affected by the Florida litigation over those exact same incidents?

[00:17:44] Speaker 04:
Absolutely, Your Honor.

[00:17:45] Speaker 04:
And I think that relates to my second response.

[00:17:47] Speaker 04:
which is that those considerations of what happened in the Florida litigation actually were raised in the disciplinary proceedings below.

[00:17:55] Speaker 04:
I think that Mr. Fair conflates two things incorrectly.

[00:17:59] Speaker 04:
On the one hand, he conflates having the opportunity to raise an argument below with having the adjudicator, in this case either the ALJ or the PTO director, agree with him.

[00:18:09] Speaker 04:
But the fact that he's actually, and as he conceded, raised the issue that

[00:18:13] Speaker 04:
the Florida litigation should have been considered.

[00:18:16] Speaker 04:
He did raise that both in his amended answer to the formal complaint.

[00:18:20] Speaker 00:
He raised it in the... Has it been considered?

[00:18:24] Speaker 00:
I'm sorry?

[00:18:24] Speaker 00:
Has it been considered by the PTO?

[00:18:26] Speaker 00:
Has that evidence been before the PTO following an opportunity by, on his part, to have made whatever argument he wants on the basis of that evidence?

[00:18:37] Speaker 00:
Has that all been considered by the PTO?

[00:18:40] Speaker 04:
That has, Your Honor.

[00:18:41] Speaker 04:
That was considered in both the ALJ's initial decision, as well as on appeal to the PTO director.

[00:18:48] Speaker 04:
The other thing that I've said.

[00:18:49] Speaker 04:
So the evidence was before?

[00:18:51] Speaker 00:
The only real question then is whether the decision of the director is or is not correct on the evidence.

[00:18:59] Speaker 00:
Is that what you're saying?

[00:19:03] Speaker 03:
Not before this court, but that's the only issue.

[00:19:06] Speaker 00:
That's the issue before the PTO.

[00:19:09] Speaker 04:
That is the issue before the PTO, but that is not the issue here.

[00:19:12] Speaker 00:
I understand that's not the issue here.

[00:19:14] Speaker 00:
That's the issue before the PTO.

[00:19:16] Speaker 00:
And at some point, that decision of the PTO can go to the district court under Section 32 appeal.

[00:19:25] Speaker 00:
And where does it go from the district court?

[00:19:27] Speaker 00:
Back here?

[00:19:28] Speaker 04:
It would, Your Honor.

[00:19:28] Speaker 04:
Yes.

[00:19:30] Speaker 04:
The Section 32 appeal.

[00:19:33] Speaker 04:
cases, they first go by statute to the Eastern District of Virginia.

[00:19:38] Speaker 04:
And then if the decision is adverse to the plaintiff, he can then choose to appeal to this court again.

[00:19:46] Speaker 04:
One thing that I would emphasize here is that Mr. Farrow's fundamental objection to what happened below is that the OED investigation itself did not consider what happened in the Florida litigation.

[00:19:59] Speaker 04:
And that is that the Florida litigation was ultimately settled.

[00:20:02] Speaker 04:
But what Mr. Farrow continues to fail to address is the fact that he's asking for an impossibility.

[00:20:08] Speaker 04:
The OED investigation completed in May of 2015, but the Florida litigation didn't settle until September 1st, 2015, over three months later.

[00:20:19] Speaker 04:
And the other thing that Mr. Farrow fails to appreciate is that the OED investigation is actually limited by regulation to have to be completed within one year.

[00:20:29] Speaker 04:
And that,

[00:20:32] Speaker 04:
There is an opportunity, if Mr. Farah had so expressed it, to toll that one-year period.

[00:20:40] Speaker 04:
But he never did so.

[00:20:42] Speaker 04:
And so this OED investigation by regulation necessarily had to complete itself by May of 2015.

[00:20:49] Speaker 00:
So how does he go about saying to the AJ or whoever he has to say it to, hey, guys, I understand you had to conclude in a year.

[00:21:00] Speaker 00:
I understand this new evidence didn't come in until later, but would you kindly look at the new evidence?

[00:21:05] Speaker 00:
Has he done that?

[00:21:06] Speaker 04:
He does.

[00:21:07] Speaker 04:
He has done that, and he's done that on multiple occasions.

[00:21:11] Speaker 04:
That's what I seem to think.

[00:21:13] Speaker 01:
So I understand that

[00:21:15] Speaker 01:
the AJ has considered that evidence.

[00:21:19] Speaker 01:
The argument is that had the OED had that evidence, perhaps these proceedings would have never been instituted, and the administrative judge wouldn't even be looking at Mr. Farrow's case.

[00:21:31] Speaker 01:
That's what his argument is, right?

[00:21:33] Speaker 04:
I presume so, Your Honor, but I would defer to Mr. Farrow for how he exactly characterizes that argument.

[00:21:40] Speaker 04:
But that's how we understand it, that essentially what he seems to be asking is that

[00:21:45] Speaker 04:
that the OED investigation might have resulted in a different result but we also don't know that but in order to actually but he can raise those arguments later at the conclusion of the disciplinary proceedings.

[00:21:58] Speaker 00:
Can you understand his frustration Mr. Hon?

[00:22:01] Speaker 00:
He has been charged early on with malpractice.

[00:22:05] Speaker 00:
He then got decisions in a settlement saying he didn't engage in malpractice if I understand the record and yet you

[00:22:15] Speaker 00:
your organization keeps looking at the question of whether he should be punished for malpractice.

[00:22:21] Speaker 00:
Can you understand his frustration at the fact that you are continuing an investigation that on its merits sounds, I'm not judging it, of course, because it's not in front of us, but it sounds a little spooky.

[00:22:35] Speaker 00:
What do we do to help the man?

[00:22:37] Speaker 00:
Anything?

[00:22:39] Speaker 04:
Well, Your Honor, I think that I would want to clarify one point in your premise, and that is that

[00:22:43] Speaker 04:
The PTO is not actually investigating him or engaging in disciplinary proceedings for malpractice.

[00:22:50] Speaker 04:
They are engaging in these proceedings because Mr. Farrow has, in the complaint, violated the rules of professional conduct that have been set forth by the PTO.

[00:23:01] Speaker 04:
And the elements of the Florida malpractice suit are different from the elements necessary to find a violation of the rules of professional conduct.

[00:23:08] Speaker 00:
But it's all based on the same factual event, isn't it?

[00:23:11] Speaker 04:
I presume, I believe that they do arise from the same event, yes, your honor.

[00:23:16] Speaker 04:
But the elements are different.

[00:23:18] Speaker 04:
And the fact that you have a finding of whether it's by settlement or by an actual judgment of the court, whether you have a finding of malpractice, that does not necessarily mean that you also have a finding that there was a violation of the rules of professional conduct and vice versa.

[00:23:34] Speaker 00:
Only common sense would suggest that, and I guess agencies don't.

[00:23:38] Speaker 00:
engage in that activity, do they?

[00:23:41] Speaker 04:
Well, Your Honor, I think that may be context specific as to when there may be some common sense employed.

[00:23:47] Speaker 04:
But in this case, there was absolutely a consideration of the malpractice suit below.

[00:23:56] Speaker 04:
And that was raised before both the ALJ and the PTO director.

[00:24:01] Speaker 04:
And that Mr. Farrow would have the opportunity

[00:24:03] Speaker 04:
to raise that argument yet again, which he did in the motion for reconsideration, I believe, and that he could raise that objection again to the district court on a proper Section 32 petition.

[00:24:15] Speaker 00:
Do you think we should look forward to the director's reconsideration?

[00:24:21] Speaker 04:
Well, Your Honor.

[00:24:23] Speaker 00:
There's only so much time and effort the judiciary wishes to put into this, don't you suppose?

[00:24:31] Speaker 04:
Yes, Your Honor.

[00:24:32] Speaker 00:
And I think that's all the answer I wanted.

[00:24:35] Speaker 00:
Thank you.

[00:24:36] Speaker 04:
Thank you, Your Honor.

[00:24:37] Speaker 04:
If there are no further questions from the panel, I'd be happy to yield the remaining time of my argument.

[00:24:41] Speaker 03:
OK, Mr. Hahn.

[00:24:42] Speaker 03:
Mr. Farrell, you have some rebuttal time.

[00:24:46] Speaker 02:
I really like Mr. Hahn.

[00:24:47] Speaker 02:
He's an excellent advocate.

[00:24:48] Speaker 02:
But he left out some very important legal problems.

[00:24:51] Speaker 02:
OK.

[00:24:52] Speaker 02:
Number one, the issues, not collateral estoppel, not ratio de car, the issues in the

[00:25:01] Speaker 02:
malpractice case were resolved on my motion for summary judgment and on a cross-motion summary judgment.

[00:25:11] Speaker 00:
In a well-functioning institution, Mr. Farrow, it's your view that they will dismiss the charges against them, is that right?

[00:25:19] Speaker 02:
No, that's not my view.

[00:25:21] Speaker 00:
That's not your view?

[00:25:22] Speaker 02:
Please let me finish my thought, because this is complicated.

[00:25:25] Speaker 02:
There's a doctrine called defensive issue preclusion and offensive issue preclusion.

[00:25:31] Speaker 02:
What missiles are you looking for?

[00:25:32] Speaker 02:
I want to reset the clock, let them refile the complaint, and then if there's a statute of limitations bar, we'll deal with it at that time.

[00:25:40] Speaker 00:
Why don't you just want them to dismiss your case?

[00:25:43] Speaker 02:
They're never going to dismiss the case.

[00:25:45] Speaker 02:
They're never going to dismiss the case.

[00:25:47] Speaker 02:
Never going to dismiss it.

[00:25:48] Speaker 02:
There's too much political nonsense.

[00:25:50] Speaker 02:
The political headwinds for dismissing this case are too strong.

[00:25:54] Speaker 02:
The bottom line here is,

[00:25:58] Speaker 02:
The bottom line is, and Ms.

[00:26:00] Speaker 02:
Hahn, I believe, misstated the issues, the issue of whether or not the determinations on the Federal District Court in the malpractice case are binding on the bar is incorrect.

[00:26:16] Speaker 02:
There's no such doctrine of defensive issue preclusion.

[00:26:19] Speaker 02:
The case is the Supreme Court case, the Sturges case.

[00:26:24] Speaker 02:
The Sturges case basically says there's six exceptions which you can apply to assert defensive issue of preclusion.

[00:26:33] Speaker 02:
And there's one more in the Second Circuit.

[00:26:36] Speaker 02:
I don't literally fall within those.

[00:26:38] Speaker 02:
The ALJ said that I'm precluded from relying on the issues decided by the district court as dispositive of those issues before the patent office.

[00:26:54] Speaker 02:
That's the law in this case.

[00:26:57] Speaker 02:
There is defensive issue preclusion, which does not apply to this case.

[00:27:04] Speaker 02:
And even though I prevailed in the, with respect to the Florida bar, the Florida bar was identical, an identical complaint, they dismissed it.

[00:27:13] Speaker 02:
So now I have to look forward to this continuation of this process.

[00:27:17] Speaker 02:
If there's an adverse decision, then I can look forward to seven or eight reciprocal discipline issues with the various district courts and other bars where I'm admitted.

[00:27:27] Speaker 02:
So that's the consequence of this process that I'm involved in.

[00:27:32] Speaker 02:
There is no defensive issue preclusion.

[00:27:34] Speaker 02:
The issues decided in my favor in the malpractice case are not available to defend against the bar complaint.

[00:27:43] Speaker 03:
Okay, Mr. Farrell, thank you for your argument.

[00:27:46] Speaker 03:
I thank both counsel.

[00:27:48] Speaker 03:
The case is taken under submission.