[00:00:57] Speaker 03: The next argued case is number 191476, Farrow against the director of the PTO, Mr. Farrow. [00:01:09] Speaker 02: Good morning, Your Honor. [00:01:13] Speaker 02: My name is John Farrow, appearing pro se in this case. [00:01:17] Speaker 02: This case involves an attempt to appeal and reverse a suspension [00:01:25] Speaker 02: by the director of the OED, entered in February of 2017. [00:01:30] Speaker 01: What's the status of that? [00:01:32] Speaker 01: Are you currently suspended now? [00:01:34] Speaker 02: I've been suspended for two years. [00:01:35] Speaker 02: You've been suspended for two years? [00:01:37] Speaker 02: My suspension was eight months. [00:01:41] Speaker 02: But I have elected to continue to fight it, because my understanding is if I attempt to get reinstated, and I am reinstated, it moots this appeal. [00:01:54] Speaker 02: I didn't want to do that. [00:01:56] Speaker 02: I want to try to recover my reputation and reverse what I feel is an improper miscarriage of justice. [00:02:04] Speaker 02: I'm appealing the suspension under 5 USC 706. [00:02:11] Speaker 04: This strikes, I didn't realize this, I was going to ask the same question, but this strikes me as odd that an eight-month suspension gets continued throughout the period that a party is challenging the suspension. [00:02:27] Speaker 02: There were conditions for suspensions. [00:02:28] Speaker 04: You are suspended even though you've served your time, so to speak? [00:02:31] Speaker 02: Well, I did not want to moot it. [00:02:33] Speaker 02: I had taken an ethics exam. [00:02:36] Speaker 02: I think the American Bar Association gives an ethics exam, which I have to take if this is not reversed. [00:02:44] Speaker 04: Oh, I see. [00:02:45] Speaker 04: So you haven't fulfilled that? [00:02:47] Speaker 02: No, I intentionally have not. [00:02:49] Speaker 02: I'm not mooted this. [00:02:50] Speaker 02: I didn't lose those. [00:02:51] Speaker 02: I'm sorry. [00:02:52] Speaker 02: I'm challenging the suspension under 5 U.S.C. [00:02:55] Speaker 02: 706 paren 2 closed paren A of the Administrative Procedures Act. [00:03:01] Speaker 02: I'm challenging it based upon an improper investigation. [00:03:05] Speaker 02: This is a case of first impression. [00:03:07] Speaker 02: I'm challenging the investigation as not being inclusive enough of information and evidence relative to the grievance. [00:03:14] Speaker 02: Most of these cases you find are challenging the OED from being overly, overly broad in his interpretation. [00:03:23] Speaker 02: The investigation is premised on my [00:03:28] Speaker 02: prosecution of a certain application on behalf of a client that started in 2002. [00:03:31] Speaker 02: The, the, I'm challenging the, the OED investigation because it didn't comply with the rules, specifically 37 CFR 1122 paren declosed paren, which defines the process for conducting an investigation of a grievance. [00:03:50] Speaker 02: And [00:03:51] Speaker 02: In this case, and I'll go through that in detail, in this case, not only did the OED director not comport the investigation with the rules, but he also did not comport the investigation with the OED's own interpretation of the rules. [00:04:08] Speaker 02: When an agreement is filed, the OED sends out what's called a request for information, which includes a copy of the grievance and its form. [00:04:18] Speaker 02: And the form requires [00:04:20] Speaker 02: in the words of the OED, that the OED director must, in his investigation, include in the investigation information relative to the grievance and any information from the respondent which tends to justify, exonerate, or excuse the allegations of misconduct. [00:04:40] Speaker 02: In this case, [00:04:43] Speaker 02: That was not done. [00:04:44] Speaker 02: I'll go into the sequence of the chronology so you understand that better. [00:04:47] Speaker 02: But in this case, the OED prematurely concluded the investigation, took this incomplete investigation, and went to the Committee on Discipline, got a probable cause determination, and then filed a complaint, instituted a formal charge and filed a formal complaint. [00:05:04] Speaker 02: That was improper. [00:05:06] Speaker 01: So this argument is that the OED did not have subject matter jurisdiction. [00:05:12] Speaker 02: That's how I define it, because the OED director does not have discretion. [00:05:18] Speaker 02: to institute a formal institute charges and file a complaint against the grievant. [00:05:23] Speaker 02: That is done by an independent entity within the patent office called the Committee on Discipline. [00:05:27] Speaker 02: So the arguments by the government that somehow the enabling legislation imparts this broad discretion is incorrect. [00:05:36] Speaker 02: The implementing regulations under the enabling legislation confine [00:05:43] Speaker 02: and the OED in his role as an investigator. [00:05:47] Speaker 02: In the Fourth Circuit, this matter has been determined before when the OED director claimed certain immunities. [00:05:56] Speaker 02: And in a Bivens case and the Fourth Circuit Court of Appeals in Goldstein versus Motes indicated that the OED director is an investigator. [00:06:04] Speaker 02: He's a cop. [00:06:06] Speaker 02: He doesn't have any discretion in conducting the investigation. [00:06:10] Speaker 02: The content of the investigation is defined [00:06:13] Speaker 02: by the request for information. [00:06:15] Speaker 02: He has to obtain evidence relative to the grievance and any information from the respondent, namely the attorney, which tends to mitigate, justify, or excuse whatever allegations of misconduct have been made in the grievance. [00:06:30] Speaker 02: He thus prematurely, in this case here, I'll go through the chronology because it's hard to... In this case, the grievance was spawned as a spinoff from a malpractice lawsuit that was filed in October 2013. [00:06:45] Speaker 02: The malpractice lawsuit bumped along, a new attorney came in May of 2014 and he filed a [00:06:57] Speaker 02: grievance with the OED. [00:06:58] Speaker 02: He filed one with the Florida Bar, which was dismissed. [00:07:01] Speaker 02: It was identical. [00:07:03] Speaker 02: And the grievance was thereafter forwarded to myself with a request for information that I respond. [00:07:10] Speaker 02: I did respond. [00:07:12] Speaker 02: My response was quite frankly very simple. [00:07:14] Speaker 02: Number one, I advised the [00:07:17] Speaker 02: the OED of the existence of this pending prior file lawsuit, I indicated that there were overlapping issues in both the lawsuit and the grievance, and I requested the OED to abate the investigation. [00:07:31] Speaker 02: There's no specific limit on the duration of an investigation. [00:07:38] Speaker 02: There's nothing in the rules that require an investigation be concluded where it's evident that additional information is forthcoming. [00:07:49] Speaker 02: And so my request to abate was to permit that additional information to be forthcoming. [00:07:54] Speaker 02: Notwithstanding, the OED never responded to my request to abate the investigation. [00:08:01] Speaker 02: Thereafter, [00:08:06] Speaker 02: it proceeded to go to the Committee on Discipline, obtain a PC, probable cause finding, and institute a complaint. [00:08:14] Speaker 02: This was done in May of 2015. [00:08:17] Speaker 02: Now, in my response to the [00:08:22] Speaker 02: the request for information, I apprised the OED of this pending lawsuit, which was not done by the grievant. [00:08:29] Speaker 02: The OED had access to the scheduling order in the federal case. [00:08:33] Speaker 02: The scheduling order entered in this case indicated the case was going to trial in July of 2015. [00:08:41] Speaker 02: That's the slip date. [00:08:43] Speaker 02: So the information that I assert was forthcoming would have been favorable to me and potentially a [00:08:51] Speaker 04: Let's assume for a moment that the failure to abate the investigation and the charge was not error by any PTO entity, and that they were free to go ahead with their disciplinary actions, regardless of what was happening in the malpractice action or any other action. [00:09:14] Speaker 04: Setting that aside, what is the issue with the way the PTO went about this? [00:09:21] Speaker 02: Well, this was compounded, so I didn't look at the chronology. [00:09:25] Speaker 02: Well, basically, once they got their probable cause and they started the initiation, the litigation kept going. [00:09:33] Speaker 04: But set aside the litigation. [00:09:38] Speaker 04: Focus on what the PTO did that independent of the litigation you have complaint with. [00:09:44] Speaker 02: Independent of what? [00:09:45] Speaker 04: Of the litigation. [00:09:46] Speaker 02: Which litigation? [00:09:47] Speaker 04: The district court litigation and the malpractice action. [00:09:50] Speaker 02: They're together. [00:09:52] Speaker 04: Well, I'm trying to get you to separate them. [00:09:55] Speaker 02: I can't. [00:09:55] Speaker 02: I see. [00:09:56] Speaker 02: And the reason I can't do it is because of the overlapping issues, number one. [00:09:59] Speaker 02: Okay. [00:09:59] Speaker 02: And number two, when the district court entered a summary judgment in my favor and granted my motion limiting striking their expert, it made a number of findings which are set forth in my brief on page 14. [00:10:14] Speaker 02: And those findings in striking the expert are material. [00:10:19] Speaker 01: Mr. Farrell, let's try this, because I think I found your brief to be pretty thick. [00:10:29] Speaker 01: It was difficult to separate out. [00:10:33] Speaker 01: the arguments, but I believe that I've separated some out. [00:10:37] Speaker 01: For example, is it one of your arguments that you were not afforded a fair and impartial hearing during the disciplinary proceeding? [00:10:47] Speaker 02: Well, there's two parts to that. [00:10:48] Speaker 02: Well, I'm asking you... Yes, that's one of them. [00:10:51] Speaker 01: Can you address that? [00:10:53] Speaker 02: I think that would help you, if you were to address that particular... Well, part of that issue involves my... That process involves my effort to file affirmative defenses where the findings were made by the District Court. [00:11:06] Speaker 02: I filed affirmative defenses which tended to mitigate issues to justify my actions. [00:11:12] Speaker 02: The OED... The OED opposed that motion to amend. [00:11:17] Speaker 02: And that amended, and that, those affirmative defenses appear on page nine of the reply. [00:11:31] Speaker 02: Now, I made that effort, and then the OED director, not the OED director, when they oppose it, the ALJ entered an order saying that those affirmative defenses had no nexus to discipline and denied my ability [00:11:47] Speaker 01: But you were heard on that particular point. [00:11:50] Speaker 01: You made a submission, and you were heard on it, and then a decision was made on that. [00:11:55] Speaker 02: Heard by who? [00:11:55] Speaker 02: The ALJ? [00:11:58] Speaker 01: By the disciplinary board. [00:12:01] Speaker 02: No, I was not heard on it. [00:12:03] Speaker 02: The information, so that's why I know it's convoluted. [00:12:06] Speaker 02: The information and evidence that they collected was exclusive of that. [00:12:10] Speaker 02: There was a premature conclusion of the investigation prior to going to the Committee on Discipline. [00:12:15] Speaker 02: The information and evidence relative to excuse, exoneration, and justification was never before the OED in the investigatory period. [00:12:25] Speaker 02: They prematurely concluded the investigation. [00:12:27] Speaker 02: They went to get, they got the probable cause filing from the Committee on Discipline and then initiated the complaint. [00:12:33] Speaker 02: That was done in May of 2015. [00:12:35] Speaker 02: In August, [00:12:37] Speaker 02: in July of 2015, the district court made its rulings on the dispositive motions and the motion limiting. [00:12:44] Speaker 02: And those findings, which are in the brief, I believe on page 14, those findings were never permitted to be asserted affirmatively in my favor in defense [00:12:59] Speaker 02: in defense of the allegations of misconduct. [00:13:02] Speaker 02: The truncated investigation permeated the entire proceeding because they objected to the introduction of those affirmed defenses because they said there was no next to discipline. [00:13:16] Speaker 02: That's nonsense. [00:13:17] Speaker 02: The affirmed defenses that we listed, in fact, correspond to challenging the probable cause finding. [00:13:24] Speaker 02: they relate to mitigation, they relate to the legal objectives of the client which was an issue in the case. [00:13:32] Speaker 02: So what had happened is I was constrained in my defense because of the content of the investigation and the ALJ endorsing that limitation when he rejected my ability to add affirmative defense asserting those issues. [00:13:49] Speaker 02: The issues in common [00:13:50] Speaker 02: out to the malpractice and to the disciplinary proceeding were in fact material to the disposition of this case. [00:14:02] Speaker 02: I should never have had a probable cause finding returned against me in my opinion and certainly if I had had an opportunity to assert these firm defenses [00:14:12] Speaker 02: I would have been better off in terms of setting a record before this court. [00:14:16] Speaker 02: I was denied an opportunity in both cases. [00:14:19] Speaker 02: So the record was calculated to be incomplete. [00:14:25] Speaker 02: That's what I'm trying to assert here. [00:14:27] Speaker 02: It was an incomplete record. [00:14:30] Speaker 02: I was constrained from making it complete because of the ALJ's denial of my motion for – motion to amend. [00:14:39] Speaker 02: And that appears in the appendix – my – the motion to amend the assert affirmative defenses appears in the appendix in 630 to 640, and the ALJ denial of that motion appears in the appendix 1303. [00:14:54] Speaker 02: So in both cases, it was a one-two punch. [00:14:59] Speaker 02: I couldn't get this information in front of the Committee on Discipline to contest the probable cause finding. [00:15:06] Speaker 02: And then when I tried to bring it into the merits determination, I was also denied an opportunity to bring it forth. [00:15:14] Speaker 03: Let's hear from the office. [00:15:16] Speaker 03: We'll see what they have to say on this point. [00:15:19] Speaker 02: I'm sorry? [00:15:20] Speaker 03: We'll save you rebuttal time. [00:15:22] Speaker 02: OK, thank you very much. [00:15:36] Speaker 03: Who would be helpful if you would take up Mr. Farrow's last point? [00:15:41] Speaker 00: Yes, Your Honor. [00:15:42] Speaker 00: As I understood it in response to Judge Raina's question about the fair and impartial hearing, Mr. Farrow identified that ALJ's striking of his various affirmative defenses during the administrative [00:15:54] Speaker 00: proceeding, I would first note that this argument Mr. Farah raises was raised for the first time in his reply brief, in his gray brief. [00:16:04] Speaker 00: It didn't appear in any sort of substantive way in his blue brief. [00:16:09] Speaker 00: But setting that aside, [00:16:12] Speaker 00: The ALJ issued a series of decisions that are relevant to this particular point. [00:16:17] Speaker 00: They appear at the appendix at pages 1301 to 03 and also at the district court administrative record at 1425 to 1429. [00:16:29] Speaker 00: In essence, what Mr. Farrow argued before the ALJ is that the district court's rulings or rulings on summary judgment and regarding the damages expert of Mr. Farrow's former client in the district court matter should stop the USPTO in this separate disciplinary proceeding. [00:16:51] Speaker 00: The ALJ addressed those arguments and it found that there is no issue of preclusion here [00:16:57] Speaker 00: for the reasons discussed in those decisions, primary of which is that there was no identity of the parties, no identity of the interests. [00:17:09] Speaker 00: The USPTO is an entirely separate entity from Mr. Fuero's former client. [00:17:15] Speaker 00: The PTO has its own independent authority to regulate the conduct of the practitioners who appear before the office. [00:17:22] Speaker 00: And all of these reasons are laid out in the ALJ's decision. [00:17:26] Speaker 00: So Mr. Farrow had the opportunity to raise these issues, but he conflates the opportunity to raise them with the ALJ agreeing with his theory of the case. [00:17:41] Speaker 00: Yes, Your Honor. [00:17:42] Speaker 00: So Mr. Farrow was suspended for eight months under this disciplinary proceeding. [00:17:48] Speaker 00: There are certain notice requirements, notice and application requirements under sections 11.58 and 11.60. [00:17:54] Speaker 01: Did that suspension take effect? [00:17:58] Speaker 01: Was it ordered? [00:17:59] Speaker 00: So the suspension was ordered, however, under 11.60C. [00:18:04] Speaker 00: The suspension period does not actually begin to run until Mr. Farrow complies with the notice requirements of 11.58. [00:18:12] Speaker 00: The PTO reached out to Mr. Farrow requesting compliance with those provisions in 2018. [00:18:19] Speaker 00: Received no response and my understanding is that to this day. [00:18:22] Speaker 00: Mr. Farrow has not complied with those requirements It goes those are regulatory requirements that go beyond taking the MPRE in this in this matter So so the suspension does not start to run you meant the suspension is in effect, but it doesn't [00:18:40] Speaker 04: the eight month period, the clock doesn't start to tick on the eight month period. [00:18:46] Speaker 04: That's right, Your Honor. [00:18:46] Speaker 04: So he is suspended right now and has been for 20 months. [00:18:50] Speaker 00: That is correct. [00:18:51] Speaker 04: Do you say that would end if he were to meet these notification requirements? [00:18:56] Speaker 00: He would need to be in compliance with the requirements in subsections 58 and 60 for a period commensurate with the suspension itself. [00:19:05] Speaker 00: So he would need to be in compliance with those requirements for eight months before he would be eligible to reapply for reinstatement. [00:19:14] Speaker 00: All right. [00:19:16] Speaker 00: I'll also turn to Mr. Farrow's primary argument, which seems to be that the OED director was not allowed to conclude the investigation without first waiting for the separate legal malpractice action to come to an end. [00:19:34] Speaker 00: As an initial matter, excuse me. [00:19:36] Speaker 00: As an initial matter, the PTO's broad disciplinary jurisdiction under 35 USC Section 2 is not in dispute. [00:19:46] Speaker 00: Mr. Farrow admits that his practice before the PTO is subject to the OED's oversight and that he concedes he's not challenging the PTO's disciplinary jurisdiction. [00:19:58] Speaker 00: That appears at page 5 of his blue brief as well as in filings before the district court. [00:20:03] Speaker 00: Judge Rana, you had mentioned subject matter jurisdiction earlier, which appears in Mr. Farrow's brief. [00:20:09] Speaker 00: There is no such thing as a separate subject matter jurisdiction. [00:20:12] Speaker 00: The question is disciplinary jurisdiction, which is uncontested. [00:20:16] Speaker 00: There's also no showing that the OED director somehow improperly, prematurely concluded his investigation or otherwise failed to follow any regulations. [00:20:26] Speaker 00: Here, the OED director gathered and examined all of the evidence that existed at the time of his investigation. [00:20:33] Speaker 00: He did that pursuant to subsection 11.22d. [00:20:37] Speaker 00: And he also filed the complaint within one year of receiving the grievance about Mr. Farrow's misconduct. [00:20:44] Speaker 00: That was done under 11.34D. [00:20:47] Speaker 00: As the district court correctly held at page 8 of the appendix, there's no regulation that requires the OED director to wait for some new information to spring into existence. [00:20:59] Speaker 00: And that's particularly so because of the one-year filing deadline that's set forth in 11.34D, as well as the general statute of limitations in 35 USC section [00:21:11] Speaker 00: I would point out also, as we have in the briefs, that the regulations also provide that neither settlement, compromise, nor restitution with the grievant shall in itself justify abatement of an investigation. [00:21:26] Speaker 00: These are all straightforward regulations and they were all straightforwardly applied in this case. [00:21:32] Speaker 04: If you look at Appendix 1302, there's a list of 11 affirmative defenses, amended affirmative defenses. [00:21:41] Speaker 04: Are those the entire set of affirmative defenses that we're addressing here? [00:21:47] Speaker 00: Not quite, Your Honor. [00:21:50] Speaker 00: So that filing with the 11 affirmative defenses was actually the third pleading? [00:21:55] Speaker 04: Yes. [00:21:55] Speaker 00: Regarding affirmative defenses. [00:21:56] Speaker 04: But I guess my question really is, do those replicate the affirmative defenses raised in the earlier pleadings, or are there separate ones that were raised that are not represented by the 11 that are set forth there? [00:22:09] Speaker 00: I believe they do replicate. [00:22:11] Speaker 00: There were some that I believe Mr. Farrow may have adjusted some of his wording or the specific theory, but they were presented before. [00:22:19] Speaker 04: And was there any one of these defenses that was not addressed by the administrative judge? [00:22:27] Speaker 00: No, Your Honor. [00:22:28] Speaker 00: The ALJ's decision, and I would refer you to the whole decision, but also the ALJ's decision in the district court administrative record at 1425 to 1429, where he deals with estoppel and preclusion, that the two of those decisions together address all of the [00:22:55] Speaker 00: affirmative offenses that Mr. Farrow pled. [00:22:57] Speaker 04: Now remind me, because the ALJ's opinion was lengthy, so did the ALJ address the statutory limitations issue, the change in the statutory limitations in 2011, did the ALJ address that issue? [00:23:12] Speaker 04: My recollection was that it was addressed, was it? [00:23:14] Speaker 00: Yes, Your Honor. [00:23:16] Speaker 00: So the ALJ addressed it in his actual order after the hearing, the disciplinary hearing. [00:23:22] Speaker 00: And I would be happy to look for a site for that. [00:23:25] Speaker 00: But he did address it. [00:23:26] Speaker 00: The USPTO director on appeal also addressed the issue and provided further guidance on that. [00:23:34] Speaker 00: Just very quickly on the specific substance of the misconduct findings, the ALJ issued a comprehensive decision that lays out the record evidence in this case and explained the reasons why he made the findings that he did. [00:23:48] Speaker 00: The district court did the same below. [00:23:50] Speaker 00: I won't belabor those points here, but rather just refer the court to those pages of the appendix, which are pages 1 to 15 and 107 to 140. [00:24:00] Speaker 00: At the end of the day, Your Honors, Mr. Farrow disagrees with the outcome of his disciplinary proceedings, but his disagreement is not a basis to reverse the district court's decision or to find lack of substantial evidence in the ALJ's findings. [00:24:15] Speaker 00: If there are any further questions, I'd be happy to address them. [00:24:18] Speaker 04: Are you with the U.S. [00:24:20] Speaker 04: Attorney's Office? [00:24:21] Speaker 04: I am, Your Honor. [00:24:22] Speaker 04: Welcome to the wonderful world of patent litigation. [00:24:25] Speaker 04: Thank you very much. [00:24:28] Speaker 03: Thank you. [00:24:28] Speaker 03: Thank you, Ms. [00:24:29] Speaker 03: Yeh. [00:24:36] Speaker 02: On two points raised by counsel, the first one is that the affirmative defenses were based upon some preclusion issue. [00:24:46] Speaker 02: That's inaccurate. [00:24:47] Speaker 02: There were two grounds asserted in the affirmative defenses, one of which was that it was a failure to comply with the rules. [00:24:59] Speaker 02: I think it's the third affirmative defense. [00:25:02] Speaker 02: And in addition, there was a second ground that [00:25:05] Speaker 02: there was potentially a defensive issue of preclusion because of participation by the OED in the malpractice litigation. [00:25:13] Speaker 02: So there were two grounds. [00:25:15] Speaker 02: So they never addressed the issue of whether there was compliance with the regulations regarding conducting the investigation. [00:25:23] Speaker 02: That's number one. [00:25:25] Speaker 02: Number two, as far as, this is quite important, and this was addressed in the prior case I had in a mandamus, which was before this court. [00:25:33] Speaker 02: There is no deadline or duration for conducting an investigation. [00:25:40] Speaker 02: That's inaccurate. [00:25:41] Speaker 02: The rules specifically provide 37 CFR 1134E that the investigation, if it can't be completed within a certain period of time, whether it's a statute of limitations issue or some other regulation, that the OED control it, control the period of the investigation. [00:26:00] Speaker 02: and then allow whatever additional evidence is forthcoming to be available to it. [00:26:05] Speaker 02: There's nothing in the regulations that excuse the OED from complying with its mandatory obligations. [00:26:11] Speaker 02: It has to consider all information evidence. [00:26:14] Speaker 02: The OED's own rules interpret that word all in the request for information. [00:26:21] Speaker 02: They have to consider not only information relative to the grievance, but also information relative to exoneration, excuse, or justification. [00:26:29] Speaker 02: The findings by the district court in ruling on the motions that I had filed, which occurred after May 15th when he had filed the complaint, are [00:26:43] Speaker 02: supportive of the affirmative defenses that, number one, I did not, and this was what I don't have time for, in terms of complying with my obligations to pursue the legal objectives, all these affirmative defenses go to that point. [00:26:57] Speaker 02: The fact of the matter is, I represented these clients for seven years. [00:27:02] Speaker 02: My job was to keep this dog alive. [00:27:04] Speaker 02: This patent application was worthless. [00:27:06] Speaker 02: The client abandoned the product, abandoned all the foreign equivalents to the application that was before me, [00:27:13] Speaker 02: And we filed a new patent application on a new product and new FDA 510k application had to be filed. [00:27:20] Speaker 02: So my pursuit of legal objectives was critical to my defense in this case and the information and evidence necessary to that defense, specifically the findings by the district court in ruling on the motions in limiting and the summary judgment was excluded. [00:27:37] Speaker 02: from that consideration. [00:27:39] Speaker 02: So I was prejudiced by the premature conclusion of the investigation. [00:27:44] Speaker 02: It was premature because the OED was aware information evidence was forthcoming, which had bearing on those affirmed defenses. [00:27:54] Speaker 02: He knew also that there was, and he knew that because of the scheduling order, which was accessible to him, setting forth the time for filing the dispositive motions and setting forth the trial date [00:28:08] Speaker 02: And by prematurely concluding the investigation in May of 2015, he excluded from consideration that information which became forthcoming thereafter, no later than July, July or August of the same year. [00:28:25] Speaker 02: So that's the premise here. [00:28:27] Speaker 02: The premise is here. [00:28:28] Speaker 02: He turned a blind eye to information that was going to be potentially a sculpatory. [00:28:34] Speaker 02: process permeated the entire lawsuit, the entire discipline. [00:28:38] Speaker 02: When I attempted to assert the affirmative defenses based on the findings by the district court in ruling on the motion for summary judgment and in ruling on the motion in limiting, I was precluded from doing that. [00:28:49] Speaker 02: by the ALJ because they opposed it and they said there was no nexus to discipline. [00:28:55] Speaker 02: And the reason there was no nexus to discipline is the OED defined what the universe was for consideration by the ALJ. [00:29:04] Speaker 02: There was an artificial constraint placed on the performance of the defense here. [00:29:10] Speaker 02: There was no way of getting information evidence [00:29:13] Speaker 02: in defense of myself, because it was not partly the universe of the pleadings. [00:29:20] Speaker 02: The district court in Virginia said something, well, Farrow could have asserted these offenses without having these affirmed offenses. [00:29:28] Speaker 02: I don't think so. [00:29:29] Speaker 02: The OED was very scrupulous in objecting to anything that was not within the four corners of that complaint. [00:29:39] Speaker 02: and had the ALJ prior ruling on these affirmed defenses to back itself up from preventing me from introducing this evidence. [00:29:48] Speaker 02: The most glaring example of this was, I think that's the best I can do. [00:29:54] Speaker 02: I need another hour. [00:29:56] Speaker 02: At the Massachusetts bar, I was there for an hour. [00:29:59] Speaker 02: My voice left me at that point in time. [00:30:03] Speaker 03: We must move on. [00:30:05] Speaker 02: I went over there, Your Honor, because this here is good, this one isn't. [00:30:10] Speaker 03: I assumed that was the problem. [00:30:13] Speaker 03: I was saying we must move on. [00:30:15] Speaker 02: I appreciate the extra time, Your Honor. [00:30:17] Speaker 02: Thank you very much for your time. [00:30:18] Speaker 03: Thank you, Mr. Farah and Ms. [00:30:20] Speaker 03: Yadda. [00:30:21] Speaker 03: The case is taken into submission.