Tuesday, December 11, 2007

The Peterlin matter: AHARONIAN v. GUTIERREZ

Judge JAMES ROBERTSON deep-sixed the position of Greg Aharonian, et al., in the matter of Margaret Peterlin holding the job of Deputy Under Secretary of Commerce for Intellectual Property (see 2007 WL 4282064 (D.D.C.))

The argument under 35 U.S.C. s 3(b) was deemed "dead on arrival":

FDIC v. Bender, 127 F.3d 58, 67-68 (D.C.Cir.1997) ("It is well understood in this Circuit that when a plaintiff files an opposition to a motion to dismiss addressing only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.")

Of the qualifications issue itself, the court noted:

The presumption must be that decisions involving high-level
policymaking personnel are left primarily to the executive. Cf. Myers v. United
States, 272 U.S. 52 (1926). In such a situation, one would expect Congress to speak
in precise terms if it intended the courts to monitor the minimal qualifications
for agency officers. Here, Congress has given only the broadest of
instructions--that the Deputy Director should have "a professional background and experience in patent or trademark law." 35 U.S.C. s 3(b). The statute is silent as to the content of those terms. Were the decision subjected to APA review, the Court--not Congress--would be the ultimate source of the standards by which the qualifications of Ms. Peterlin would be judged: Is a law degree necessary? Is it sufficient? Are law school courses in intellectual property a requirement? Is certification to practice before the USPTO? Is law firm experience? How many years? If Congress had intended the extraordinary situation in which judicial review would
reach to the very qualifications of agency officers for their policymaking
positions, its statute would not be drawn "in such broad terms that ... there is no
law to apply." See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402,
410 (1971) (citation omitted).


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