On Wednesday, the plaintiff in Partington v. Houck filed this motion asking the United States District Court to reinstate a TRO on his suspension from practice in naval courts-martial and DOJ had file.  A TRO had previously been in place, Judge Scullin denied a request to extend it, and it expired on its own terms on 2 December.

Yesterday, Judge Scullin issued this order denying Mr. Partington’s request to revive the TRO.  He ruled that “Plaintiff has not demonstrated that justice requires that the Court reconsider its Order denying his motion for the extension of the temporary restraining order.”

2 Responses to “Judge Scullin denies request to revive TRO in Partington”

  1. Socrates says:

    In its 15 December Opposition brief, urging rejection of Partington’s Memorandum of Points and Authorities in Support of his motion for a Preliminary Injunction, the Government, on Page 23, states: “Attorneys accorded the privilege of appearing in such a court, or any court, must be beyond such reproach.”  I agree.  Therefore, I urge the Government to abide by both Professional Rule 3.3 and JAGINST 5803.1C, RULE 3.3 CANDOR AND OBLIGATIONS TOWARD THE TRIBUNAL, Rule 3.3, 5 (d), which states: “In an ex parte proceeding, a covered attorney shall inform the tribunal of all material facts known to the covered attorney which are necessary to enable the tribunal to make an informed decision, whether or not the facts are adverse.”
    Judge Scullin should be aware that CAPT Blazewick, the Investigating Officer in this matter, was the Director of the Navy’s Appellate Defense Division, with supervisory duties, at the time Mr. Partington filed his brief.  This means that CAPT Blazewick had editorial review duties, or a responsibility to delegate those duties. 

    The issue of a managerial paradigm for the Appellate Defense shops [law-firm or independent contractor] has been discussed by CAAFlog before.  But in the absence of a “clear” and plain language statement of that paradigm — it is reasonable to assume that the title “Director” means just that: “Director,” with attendant supervisory duties.

    So purported “clear” and “repeated” misrepresentations would need to be identified by supervisory staff, with notice to Mr. Partington, that his brief is unacceptable.  Its a defense “team.”  And there is some responsiblity to maintain the professional reputation of the division, at least a “floor” of ethical standards.  So (1) a procedure should be in place for review and editing briefs before submission; and also, (2) briefs may certainly be withdrawn. 

    In addition CAPT Blazewick was then-LT Mizer’s (Partington’s co-counsel) reporting senior.  Sub-silencio, it is probable that LT Mizer, during the investigation, stated to CAPT Blazewick (though I don’t know this): “Hey, I had almost nothing to do with Partington’s brief.”  (LT Mizer is a great attorney, with integrity; but he may have made a simple mistake by either (1) failing to “red-flag” this issue and ring the alarm bells; (2) not putting on the record – or contacting Partington directly to warn him – of his ethical objections; or (3) not standing-up for Partington, by simply stating, via affidavit, “this brief put forward an aggressive legal argument, perhaps on the edge, but not “clearly” and “repeatedly” a misrepresentation.  At least it was not so “clear” that I noticed it.”  (Again, I don’t know for sure that none of these things happened – but, on its face, it does not appear so)  In any event, this background calls into question serious factual matters related to due process and selective enforcement of professional responsibility rules.  Then-LT Kadlec, of-counsel on this matter, was at Appellate Defense at the time, and should be pro-actively informing the Government counsel of these factual matters under her ethical obligations.  If she remains silent, she is not too much more ethical than Partington.  She can’t claim that she is doing the Lord’s work, and therefore is cool to lay low on matters SHE doesn’t think make a difference.
    Folks may take various positions on whether these facts go to the ultimate issues, but they are certainly “material” in the sense that they “tend to” move the scale, and when weighing an aggregate of factual matters, could make a difference.  But that’s Judge Scullin’s call, not an attorney’s call.  Its concealment, plan and simple.  And, as stated by the Government:  attorneys in this matter “must be beyond such reproach.”  If the above facts are not disclosed, I reproach the Government attorneys – and I hope smart CAAFlog readers do as well – even if you agree that the Government’s authority to disbar Partington are jurisdictionally and procedurally sound.

  2. Just Sayin' says:

    Socrates, once again, your legal analysis is spot on.
    However, selective enforcement of this particular JAG instruction is nothing new and is by no means limited to Partington’s case.