         NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                  ______________________

                  LOUIS A. PICCONE,
                   Petitioner-Appellant

                             v.

      UNITED STATES PATENT AND TRADEMARK
                      OFFICE,
                 Respondent-Appellee

 TEN UNKNOWN U.S. PATENT AND TRADEMARK
          OFFICE EMPLOYEES,
                 Respondent
           ______________________

                        2019-1471
                  ______________________

   Appeal from the United States District Court for the
Eastern District of Virginia in No. 1:18-cv-00307-LMB-
IDD, Judge Leonie M. Brinkema.
                ______________________

                Decided: November 20, 2019
                  ______________________

      LOUIS A. PICCONE, Hawkesbury, Ontario, Canada, pro
se.

    KIMERE JANE KIMBALL, Office of the United States At-
torney for the Eastern District of Virginia, Alexandria, VA,
2                                            PICCONE v. USPTO




for respondent-appellee. Also represented by G. ZACHARY
TERWILLIGER.
                ______________________

    Before LOURIE, MOORE, and CHEN, Circuit Judges.
PER CURIAM.
    Louis Piccone appeals a decision of the United States
District Court for the Eastern District of Virginia dismiss-
ing his petition for review of the final decision of the Direc-
tor of the United States Patent and Trademark Office
(PTO) suspending Mr. Piccone from practice before the
PTO for three years. See Piccone v. United States Patent &
Trademark Office, No. 18-CV-00307, 2018 WL 5929631
(E.D. Va. Nov. 13, 2018). Because the PTO’s decision to
suspend Mr. Piccone was not arbitrary, capricious or an
abuse of discretion, or otherwise not in accordance with
law, we affirm.
                        BACKGROUND
    Mr. Piccone is an attorney admitted to the Pennsylva-
nia bar. In 1997, he registered as an attorney authorized
to practice before the PTO.
    Between 2007 and 2014, Mr. Piccone’s Pennsylvania
bar license was thrice suspended: September 1, 2011 to Oc-
tober 11, 2011, for failure to comply with continuing legal
education requirements (CLE); October 19, 2012 to Decem-
ber 21, 2012, for failing to pay bar membership fees; and
September 20, 2013 to August 13, 2014, again for failure to
comply with CLE requirements. During that time, Mr. Pic-
cone also received repeated censures for his formal and in-
formal participation in non-Pennsylvania cases. See, e.g.,
Doe v. Briggs, 945 F. Supp. 2d 210 (D. Mass. 2013); Katz v.
McVeigh, No. 10-CV-410, 2012 WL 1379647 (D.N.H. Apr.
20, 2012); Pease v. Burns, 679 F. Supp. 2d 161 (D. Mass.
2010); Nolan v. Primagency, Inc., No. 07-CV-134, 2008 WL
1758644 (S.D.N.Y. Apr. 16, 2008); Nolan v. Primagency,
PICCONE v. USPTO                                          3



Inc., No. 07-CV-134, 2008 WL 650387 (S.D.N.Y. Mar. 3,
2008). The actions leading to those censures fall into three
broad categories of conduct: (1) unauthorized practice of
law, (2) failure to adhere to pro hac vice admission stand-
ards, and (3) neglecting client matters.
    On December 11, 2013, the PTO became aware of Mr.
Piccone’s misconduct when the executive director of the
Massachusetts Board of Bar Examiners called and emailed
the PTO Office of Enrollment and Discipline (OED) regard-
ing the impact of Mr. Piccone’s suspension from practice in
Pennsylvania on his license to practice before the PTO. Af-
ter some independent searching, OED identified the many
decisions discussing Mr. Piccone’s conduct, leading to an
OED investigation.
    On December 10, 2014, OED issued a nine-count com-
plaint alleging misconduct by Mr. Piccone. J.A. 317–41. In
addition to Mr. Piccone’s behavior in U.S. district courts,
the complaint identified that Mr. Piccone acted as an attor-
ney in a matter before the PTO while his Pennsylvania bar
license was suspended. After a two-day hearing, an Ad-
ministrative Law Judge found against Mr. Piccone on
eight of the nine counts and recommended a three-year
suspension from practicing before the PTO. See J.A. 248–
316. Mr. Piccone sought review from the Director, who af-
firmed. See J.A. 626–61. The Director declined Mr. Pic-
cone’s request for reconsideration. Mr. Piccone then filed a
petition for review in the Eastern District of Virginia,
which was dismissed. Piccone, 2018 WL 5929631, at *7.
    Mr. Piccone now appeals to this court. We have juris-
diction pursuant to 28 U.S.C. § 1295(a)(1). See also Shein-
bein v. Dudas, 465 F.3d 493, 494–95 (Fed. Cir. 2006).
                       DISCUSSION
    The PTO has authority to establish regulations that
“govern the recognition and conduct of agents, attorneys,
or other persons representing applicants or other parties
4                                           PICCONE v. USPTO




before the Office.” 35 U.S.C. § 2(b)(2)(D). As relevant here,
it has exercised this authority by enacting the Code of Pro-
fessional Responsibility, 37 C.F.R. §§ 10.20 et seq. (2004),
which governed attorney conduct up to May 3, 2013, and
the Rules of Professional Conduct, 37 C.F.R. §§ 11.101 et
seq., which govern attorney conduct thereafter. When a
registered practitioner does not comply with his profes-
sional obligations, the PTO can suspend or exclude him
from practicing before the Office after notice and oppor-
tunity for a hearing. 35 U.S.C. § 32; 37 C.F.R. § 11.20.
     The Administrative Procedure Act (APA) governs dis-
trict court review of disciplinary action taken by the PTO.
Bender v. Dudas, 490 F.3d 1361, 1365–66 (Fed. Cir. 2007).
Pursuant to the APA, a decision is upheld unless “arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706. We review a dis-
trict court’s decision on a petition for review of a PTO dis-
ciplinary decision de novo, applying the same standard
applied by the district court. See Sheinbein, 465 F.3d at
495. Mr. Piccone raises numerous procedural and substan-
tive challenges to the PTO disciplinary proceeding. As de-
tailed below, Mr. Piccone’s arguments fail.
       1. The Institution of Disciplinary Proceedings
     Mr. Piccone argues that the disciplinary action against
him was not properly authorized because Deputy OED Di-
rector William Griffin signed the Complaint initiating the
action rather than OED Director William Covey. Appel-
lant’s Br. 18–22. The controlling regulation provides that
the signature of the OED Director is a required component
of a disciplinary complaint. 37 C.F.R. § 11.34(a)(5) (“A com-
plaint instituting a disciplinary proceeding shall . . . [b]e
signed by the OED Director.”). It is, however, well estab-
lished that delegation of duties is presumptively permissi-
ble. See Ethicon Endo-Surgery, Inc. v. Covidien LP, 812
F.3d 1023, 1031–32 (Fed. Cir. 2016); U.S. Telecom Ass’n v.
F.C.C., 359 F.3d 554, 565 (D.C. Cir. 2004). Both Director
PICCONE v. USPTO                                           5



Covey and Deputy Director Griffin signed sworn state-
ments, declaring that Director Covey delegated the author-
ity to commence proceedings against Mr. Piccone to Deputy
Director Griffin. J.A. 342–45. Mr. Piccone provides no ev-
idence to the contrary and makes no argument as to why
the presumption of permissible delegation should not apply
in this instance. Accordingly, Deputy Director Griffin was
within his power to institute disciplinary proceedings
against Mr. Piccone.
                   2. Statute of Limitations
     Mr. Piccone argues that the PTO failed to commence
the disciplinary proceedings within the applicable statute
of limitations. Appellant’s Br. 40–41. A disciplinary pro-
ceeding:
    shall be commenced not later than the earlier of ei-
    ther the date that is 10 years after the date on
    which the misconduct forming the basis for the pro-
    ceeding occurred, or 1 year after the date on which
    the misconduct forming the basis for the proceed-
    ing is made known to an officer or employee of the
    Office as prescribed in the regulations established
    under section 2(b)(2)(D).
35 U.S.C. § 32. The relevant regulation provides, “[a] com-
plaint shall be filed within one year after the date on which
the OED Director receives a grievance forming the basis of
the complaint.” 37 C.F.R. § 11.34(d). A “grievance” is de-
fined as “a written submission from any source received by
the OED Director that presents possible grounds for disci-
pline of a specified practitioner.” Id. § 11.1.
    The statute of limitations is an affirmative defense that
Mr. Piccone bore the burden of establishing by clear and
convincing evidence before the PTO. 37 C.F.R. § 11.49.
The PTO determined that he failed to meet that burden,
and determined that the complaint was brought within the
limitations period. Now, on appeal, Mr. Piccone must show
6                                           PICCONE v. USPTO




that the PTO’s determination was arbitrary or capricious.
He does not meet this burden. OED learned of Mr. Pic-
cone’s misconduct on December 11, 2013, when the Massa-
chusetts Board of Bar Examiners called and emailed OED
to check whether his licensure was impacted by a suspen-
sion in Pennsylvania. J.A. 601–02. Within one year, on
December 10, 2014, OED filed a complaint commencing a
disciplinary proceeding. Mr. Piccone has identified no evi-
dence to the contrary.
    Mr. Piccone further argues that the PTO had construc-
tive notice of his misconduct when his Pennsylvania bar li-
cense was suspended because the Pennsylvania Supreme
Court published notices of his suspensions in 2011 and
2012. Appellant’s Br. 40. The one-year limitations period
runs from the date misconduct “is made known to an officer
or employee of the Office as prescribed in the regulations,”
which state that the relevant date is “the date on which the
OED Director receives a grievance.” 35 U.S.C. § 32; 37
C.F.R. § 11.34(d). Under this framework, contrary to Mr.
Piccone’s position, constructive notice is not enough. Thus,
the PTO’s determination that the disciplinary complaint
was brought within the statute of limitations was not arbi-
trary, capricious, or otherwise not in accordance with law.
              3. The ALJ’s Discovery Decisions
    Mr. Piccone argues that the ALJ’s discovery decisions
denied him due process. “The fundamental requirement of
due process is the opportunity to be heard ‘at a meaningful
time and in a meaningful manner.’” Mathews v. Eldridge,
424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380
U.S. 545, 552 (1965)). Mr. Piccone argues that this require-
ment was not met because (1) OED attorneys were re-
quired to produce exculpatory evidence but failed to do so,
(2) he was entitled to full discovery as part of the adminis-
trative proceeding but did not receive it, and (3) his reason-
able requests to the ALJ for discovery were denied.
PICCONE v. USPTO                                          7



Appellant’s Br. 22–31. Mr. Piccone has not demonstrated
a violation of due process.
     First, Mr. Piccone’s argument that OED denied him
due process by failing to produce exculpatory evidence is
baseless. Mr. Piccone does not identify any evidence with-
held by the PTO in the disciplinary proceeding—he merely
speculates about types of documents that, should they ex-
ist, might help his case. Appellant’s Reply Br. 17–18.
Where, as here, there is no reason to believe OED failed to
disclose exculpatory evidence, there is no basis for ques-
tioning the propriety of its procedure.
    Second, there is no right to the full scope of discovery
permitted under the Federal Rules of Civil Procedure in a
PTO disciplinary action. Mr. Piccone’s reliance on 35
U.S.C. § 24 as establishing such a right is misplaced. Sec-
tion 24, relating to witnesses and subpoenas, states, “[t]he
provisions of the Federal Rules of Civil Procedure relating
to the attendance of witnesses and to the production of doc-
uments and things shall apply to contested cases in the Pa-
tent and Trademark Office.” 35 U.S.C. § 24. But it is well
established that Section 24 relates only to the handling of
witnesses and does not afford a party any right to discovery
beyond what is allowed by PTO discovery rules. Abbott
Labs. v. Cordis Corp., 710 F.3d 1318, 1325–26 (Fed. Cir.
2013).
     Third, the record reflects that Mr. Piccone was given
much of the discovery he requested once he complied with
the ALJ’s scheduling order and PTO regulations. The ALJ
authorized written discovery requests to OED and allowed
Mr. Piccone to depose the executive director of the Massa-
chusetts Board of Bar Examiners. Mr. Piccone’s argument
that he was denied all “reasonable attempts” at discovery
is, thus, unsupported. We find no due process violation in
the disciplinary proceeding.
8                                         PICCONE v. USPTO




      4. Unauthorized Practice of Law Before the PTO
     Mr. Piccone argues that the PTO’s conclusion that he
engaged in unauthorized practice of law in a trademark
matter ignored his status as a director of the organization
involved therein. The PTO’s decision finding that Mr. Pic-
cone was an attorney representing the organization, as op-
posed to a member of the organization, was not arbitrary
or capricious.
    The PTO found that Mr. Piccone violated the prohibi-
tion against unauthorized practice of law, as set out in 37
C.F.R. § 11.505, when he prepared a Response to Office
Action on Behalf of Lawless America Association (Lawless)
during the prosecution of a trademark application.
J.A. 650–52. On February 12, 2014, while Mr. Piccone’s
Pennsylvania bar license was suspended, he sent a draft of
the Response to the President of Lawless, who submitted it
to the PTO. At that time, Mr. Piccone remained the attor-
ney of record.
    Mr. Piccone argues that his activity in the Lawless
trademark matter was permissible because he was a direc-
tor of the organization. Appellant’s Br. 42–46. The govern-
ing regulations provide that only attorneys may practice
before the PTO in trademark matters but allow officers of
an organization a right to appear in trademark matters. 37
C.F.R. § 11.14. The PTO found that there was no evidence
that Mr. Piccone was appearing as a member of Lawless
rather than practicing as an attorney on behalf of the or-
ganization. Mr. Piccone signed documents filed with the
PTO as the attorney of record and the President of Lawless
acted as the corporate officer by signing the February 12
Response. Thus, we find that the PTO’s conclusion that
Mr. Piccone was practicing law, in contravention of 37
C.F.R. § 11.505, was not arbitrary or capricious.
PICCONE v. USPTO                                            9



     5. Unauthorized Practice of Law in Massachusetts
     The PTO found against Mr. Piccone on three counts of
misconduct due to his repeated failure to seek admission
pro hac vice in Massachusetts. Mr. Piccone argues that the
PTO’s decision was factually and legally flawed. Appel-
lant’s Br. 31–34. He argues that he was protected by a safe
harbor provision in Massachusetts Rule of Professional
Conduct 5.5(c)(2) that allows attorneys to practice pending
admission pro hac vice. The safe harbor applies if the at-
torney “reasonably expects to be . . . authorized” to practice
pro hac vice in the future. Mass. Rules Prof’l Conduct
r. 5.5(c)(2). But Mr. Piccone never sought pro hac vice ad-
mission in the Massachusetts actions, indicating he lacked
the reasonable belief of future admission necessary to qual-
ify for the safe harbor.
     Mr. Piccone also argues that under Massachusetts
Rule of Professional Conduct 5.5(c)(2) he is allowed to as-
sist any “person . . . authorized by law” to appear in a pro-
ceeding, including a pro se individual. While a pro se
individual is authorized to appear before a court, a person
is no longer pro se once he is represented by an attorney. A
represented person is not individually authorized to appear
before a court. Thus, Mr. Piccone’s argument that he was
merely assisting a person authorized to appear before the
court, where the PTO found Mr. Piccone was acting as an
attorney for the plaintiffs in the Massachusetts cases, fails.
The PTO’s decision related to Mr. Piccone’s unauthorized
practice of law in Massachusetts was not arbitrary, capri-
cious, or otherwise not in accordance with law.
                        CONCLUSION
    We have considered Mr. Piccone’s remaining argu-
ments but find them unpersuasive. For the foregoing rea-
sons, we affirm the district court’s dismissal of Mr.
Piccone’s challenge to his suspension.
                        AFFIRMED
