Piccone v. Matal

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LOUIS A. PICCONE,
Plaintiff-Appellant
v.
JOSEPH MATAL, PERFORMING THE FUNCTIONS
AND DUTIES OF THE UNDER SECRETARY OF
COMMERCE FOR INTELLECTUAL PROPERTY
AND DIRECTOR, U.S. PATENT AND TRADEMARK
OFFICE, WILLIAM COVEY, OED DIRECTOR OF
USPTO, WILLIAM GRIFFIN, DEPUTY OED
DIRECTOR OF USPTO, DAHLIA GEORGE, STAFF
ATTORNEY OF USPTO, UNITED STATES PATENT
AND TRADEMARK OFFICE,
Defendants-Appellees
JOHN AND JANE DOE 1-5,
Defendant
______________________
2017-1544
______________________
Appeal from the United States District Court for the
Eastern District of Virginia in No. 1:15-cv-00536-JCC-
TCB, Judge James C. Cacheris.
______________________
Decided: August 11, 2017
______________________
2 PICCONE v. MATAL
LOUIS A. PICCONE, Hawkesbury, Ontario, Canada, pro
se.
KIMERE JANE KIMBALL, Office of the United States
Attorney for the Eastern District of Virginia, Alexandria,
VA, for defendants-appellees. Also represented by DANA
J. BOENTE.
______________________
Before NEWMAN, LINN, and MOORE, Circuit Judges.
PER CURIAM.
Louis Piccone appeals an order from the United
States District Court for the Eastern District of Virginia
dismissing his complaint against the United States Pa-
tent & Trademark Office (“PTO”) and five PTO employees
(the “Individual Defendants”). Because we lack jurisdic-
tion to review the underlying order and the district court
did not abuse its discretion in denying Mr. Piccone’s
motion for reconsideration, we affirm.
BACKGROUND
Mr. Piccone is an attorney licensed to practice law in
Pennsylvania and a registered practitioner before the
PTO. The PTO filed a complaint and notice of discipli-
nary proceedings against Mr. Piccone, alleging he had
engaged in the unauthorized practice of law. The com-
plaint alleged that Mr. Piccone prosecuted a trademark
application while suspended from the Pennsylvania Bar
and represented individuals in jurisdictions where he was
neither licensed nor admitted pro hac vice. Mr. Piccone
filed a Freedom of Information Act (“FOIA”) Request
seeking documents concerning the PTO’s investigation.
The PTO identified its employees most likely to possess
responsive documents and searched their files for relevant
materials, but it did not produce anything because every
identified document was protected from disclosure as
PICCONE v. MATAL 3
relating to an ongoing disciplinary investigation. After a
series of appeals within the PTO and further document
searches using other spellings of Mr. Piccone’s name, the
PTO located and produced a number of responsive docu-
ments.
On April 23, 2015, Mr. Piccone filed the underlying
complaint in the Eastern District of Virginia. His com-
plaint contained a host of allegations, including alleged
constitutional violations by the Individual Defendants,
challenges to the PTO’s FOIA decisions, and a request for
declaratory relief from the PTO’s disciplinary proceedings.
The Individual Defendants moved to dismiss, and the
PTO moved to dismiss and for summary judgment. The
district court held a hearing on October 15 and granted
the motions on October 27, 2015. It issued a separate
order later that day informing Mr. Piccone he had thirty
days to file a notice of appeal.
On December 9, 2015, Mr. Piccone filed a motion to
reconsider the October 27 order. Mr. Piccone argued,
among other things, that he deposed Dahlia George, a
PTO attorney and one of the Individual Defendants, on
October 13–14, 2015, in connection with his PTO discipli-
nary proceedings, and that her testimony was relevant to
the district court motions. The district court denied the
motion for reconsideration on December 30, 2015, noting
that Mr. Piccone deposed Ms. George prior to the hearing
on the motions to dismiss and could have presented the
new evidence at that time.
On February 29, 2016, Mr. Piccone filed a notice of
appeal to the Court of Appeals for the Fourth Circuit,
which transferred the case to our court. His notice stated
that he was appealing “the final judgment dismissing the
above-identified case, entered December 29, 2015.” We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).
4 PICCONE v. MATAL
DISCUSSION
Although the majority of Mr. Piccone’s brief to our
court addresses the district court’s October 27, 2015 order
granting summary judgment, our appellate jurisdiction is
limited to reviewing the district court’s December 30,
2015 order denying Mr. Piccone’s motion for reconsidera-
tion. 1 The timely filing of a notice of appeal in a civil case
is a jurisdictional requirement. Bowles v. Russell, 551
U.S. 205, 214 (2007). Under the Federal Rules of Appel-
late Procedure, Mr. Piccone had sixty days from the date
of the October 27, 2015 order to file his notice of appeal.
See Fed. R. App. P. 4(a)(1)(B)(ii); Gist v. United States,
504 F. App’x 918, 918 (Fed. Cir. 2013). Mr. Piccone did
not file his notice of appeal until February 29, 2016, more
than four months after the summary judgment order.
And his notice of appeal only identified the district court’s
December 30, 2015 order denying reconsideration. We
therefore lack jurisdiction to review the October 27, 2015
order.
The district court interpreted Mr. Piccone’s December
9, 2015 motion for reconsideration as a motion under Rule
60 rather than Rule 59 of the Federal Rules of Civil
Procedure. We see no error in this conclusion. Under
Rule 59, a party must file a motion to amend a judgment
within twenty-eight days of the entry of the judgment.
Fed. R. Civ. P. 59(e). Mr. Piccone filed his motion forty-
three days after the October 27, 2015 order. The district
court properly treated his motion as a Rule 60 motion,
which may be filed within a year of entry of judgment.
See Fed. R. Civ. P. 60(c)(1).
Because the denial of a Rule 60(b) motion is a proce-
dural issue not unique to patent law, we apply regional
1 The notice of appeal incorrectly lists the date as
December 29, 2015.
PICCONE v. MATAL 5
circuit law. CEATS, Inc. v. Cont’l Airlines, Inc., 755 F.3d
1356, 1360 (Fed. Cir. 2014). The Fourth Circuit reviews
the denial of a Rule 60(b) motion for abuse of discretion.
Aikens v. Ingram, 652 F.3d 496, 501 (Fed. Cir. 2011). An
appeal from the denial of a Rule 60(b) motion does not
bring up the underlying judgment for review. Id.The district court did not abuse its discretion in deny-
ing Mr. Piccone’s request for reconsideration. Mr. Piccone
based his request for reconsideration on new evidence—
Ms. George’s testimony in the PTO disciplinary proceed-
ings. But as the district court noted, Ms. George was
deposed prior to oral argument on the motions to dismiss
and motions for summary judgment. This gave Mr.
Piccone the opportunity to offer Ms. George’s testimony to
the district court prior to its resolution of the motions. It
was not an abuse of discretion for the district court to
determine that this was not evidence that “could not have
been discovered in time to move for a new trial under
Rule 59(b),” which is twenty-eight days. See Fed. R. Civ.
P. 60(b)(2).
CONCLUSION
The district court’s order denying Mr. Piccone’s mo-
tion for reconsideration is affirmed.
AFFIRMED
COSTS
No costs.