We’ve posted the opinion here

Judge Scullin initially holds that the Judge Advocate General of the Navy had the authority to discipline Mr. Partington. Judge Scullin relies on Article 36’s delegation of procedural rule-making authority to the President.  He also notes that, in connection with the case that led to the disciplinary proceeding against him, Mr. Partington had certified that he was familiar with and agreed to abide by authorities including the Navy Rules of Professional Conduct.  “Therefore, pursuant to clear constitutional and statutory authority, the Court finds that the Navy JAG had the authority to initiate disciplinary proceedings and ultimately suspend Plaintiff, a civilian attorney, from the practice of law before naval courts. Furthermore, given Plaintiff’s certification that he would abide by all rules and regulations for such proceedings, he cannot now reasonably assert that the naval court before which he argued lacked jurisdiction over him to impose discipline.”  Partington v. Houck, No. 1:10-CV-162, slip op. at 6-7 (D.D.C. Jan. 10, 2012).  Judge Scullin also rejected Mr. Partington’s argument that CAAF had no authority to impose reciprocal discipline on him since that claim rested on the premise that the Judge Advocate General of the Navy’s discipline was null and void.  Id., slip op. at 7 n.4.

Judge Scullin then rejected a due process challenge to Mr. Partington’s suspension, concluding that Mr. Partington “has not demonstrated a legitimate claim of entitlement to the practice of law before [naval] courts.”  Id., slip op. at 8.  He therefore “has no cognizable property interest in this limited practice of law.”  Id.  He reasoned: “Plaintiff has cited no . . . source of law, state or federal, to support his argument that a lawyer has a constitutionally-protected property interest in his ability to represent clients before naval courts.  Although Plaintiff’s business may suffer as a result of his suspension, this alone is insufficient to warrant the relief Plaintiff seeks because Defendants have not wholly deprived him of his law license or his ability to practice law.”  Id.  Judge Scullin also rejected the argument that Mr. Partington has a constitutionally “cognizable liberty interest in the limited practice of law before naval courts.”  Id., slip op. at 9.

Having concluded that the Due Process Clause did not apply to Mr. Partington’s suspension from practice before naval courts, Judge Scullin noted that “the Court need not address what process is due or whether or not that process was provided to Plaintiff.”  Id.

Judge Scullin then analyzed whether the decision to discipline Mr. Partington could be challenged under the Administrative Procedures Act.  Judge Scullin held that CAAF, as a Court of the United States, isn’t an “agency” for APA purposes and therefore dismissed the APA claim against CAAF.  Id., slip op. at 1o-11.  Then, citing McKinney v. Caldera, 141 F. Supp. 2d 25 (D.D.C. 2010), aff’d sub nom., McKinney v. White, 291 F.3d 851 (D.C. Cir. 2002), Judge Scullin held that the Judge Advocate General of the Navy isn’t an “agency” for purposes of the APA and, therefore, dismissed the APA claim against that official as well.

Finally, Judge Scullin dismissed Bivens claims against four defendants in their individual capacities because “Plaintiff has not identified a constitutionally-protected Fifth Amendment liberty or property interest in the limited practice of law before naval courts.  . . .  [The Court does not] need to analyze Plaintiff’s Bivens claim any further because the only constitutional rights at issue concern potential due process violations.”  Id., slip op. at 13.  Judgment was entered in the Defendants’ favor.

We’ll continue to monitor the case to see if an appeal is filed in the D.C. Circuit.

15 Responses to “BREAKING NEWS: Judge rules for Navy in Partington v. Houck [UPDATED]”

  1. Dew_Process says:

    To quote a famous TV Marine, “Surprise, surprise, surprise!”

  2. Socrates says:

    This decision is indeed expected and consistent with Judge Scullin’s style – a straightforward application of the law.  Judge Scullin does not really get mired in the facts, but instead primarily deals with the law, specifically regarding the Navy JAG’s authority.

    To the point, Judge Scullin seems agnostic on the Navy JAG’s interpretation of Partington’s behavior as unethical, per footnote 3: “Plaintiff explains that his intended legal argument was that the military judge had effectively “dismissed” or “acquitted” Toles of the video voyeurism charges lodged against him.  The trial record is, in fact, quite confusing.”  Judge Scullin sets forth both Partington’s justification for his arguments and the JAG’s condemnation of those arguments, but he takes no position in that spat.  Moreover, Judge Scullin certainly does not echo any rebuke of Partington, as did the Hawaii Supreme Court.

    Partington’s arguments were largely broad jurisdictional-type or due process challenges.  But this tactic omits a more mundane ‘tort’ approach – the basic bread-and-butter tort suit: duty/breach/cause/damages.  (E.g., the Navy and I had reciprocal quasi-contractual duties to each other – it would provide clear rules and fair application of those rules, and I would abide by them; the Navy breached its duty to me; this breach caused injury to my reputation and my business; I suffered damages)  No due process “entitlement” to employment here – just a simple tort.

    It looks like Charlie Gittins never made his appearance in this case. 
     

  3. Atticus says:

    A straightforward application of the law?  How refreshing.  No penumbras?  No “What this law really means is _________.  I know this law has been there for many years, but I am the one who just now figured out what it really means….” ?  What in the world is the practice of law coming to? 

  4. Cheap Seats says:

    Great analysis by Judge Scullin.  However, looks like the APA non-agency determination of TJAG is the weakest point.  Whereas McKinney supports the notion, it is a wholly different issue of Art. 69 review vice professional misconduct.  Partington’s case isn’t the strongest in this regard (some military court involvement occurred.)  I can think of other cases where Military Justice is not involved at all – personal/professional misconduct reported to the Rules Counsel without any judicial action.  Will a federal court find that NO COURT, military or otherwise is able to review TJAG’s process and decision?  We’ll save that case for another day.

  5. Just Sayin' says:

    agree with cheap seats,

    there’s a lot about the JAG PR process that stinks to high heaven, especially the cases that are referred without judicial involvement.  It seems to be a case of “we get to do whatever we want to do,l and we know you can’t do anything about it”  not to mention NJAG’s systemic failure to follow its own procedural rules.

  6. Phil Cave says:

    There is a point in the opinion that I’m not sure we’ve focused on or discussed — In Navy courts civilians have to certify a lot of information (beyond IMHO what is required or necessary, so much so that it’s a detailed two page NOA.  For example in the Western Circuit you have to certify how many cases you have done in your career.  (That seems to me to be problematic.  See page 32, here [http://www.jag.navy.mil/courts/documents/TJWesternCircuit.pdf]  The Court Rules in Hawai’i aren’t as extensive as WC, but they do require the counsel to agree to the Navy RPC.  I don’t have a problem certifying I’ve done a lot of cases over the years.  But what about a newbee.  And then the clients reads that the lawyer hasn’t really done a lot of cases.  (Anyway a rabbit trail for another day.)  Point being, did not Mr. Partington do, as I do, Charlie does, Brother Bill does, and others, agree to the “rules?”  And if that’s true, has he waived any later claim that the rules themselves aren’t fair, as opposed to not fairly implemented.

  7. Bill C says:

    Unfortunately, Phil is right. While the process is screwed up we agree to it in order to earn a livelihood.

  8. Dew_Process says:

    RCM 502(d)(3) is the authority for “civilian counsel” and only requires proof that one is a member of the Bar (impliedly in good standing) “of a federal court or of the bar of the highest court of a State.”  Who has standing to challenge this CinC determination of “qualifications?”

  9. Just Sayin' says:

    not to monday mornign QB, but I think he would have had a better shot if, rather than arguing substantive DP, he had gone aong with the process, waited until the Navy inevitably failed to follow its own procedural rules (as they always do) and then argued procedural due process.

    It’s appalling that senior judge advocates are consistently incapable of following the most basic instructions.

  10. Bill C says:

    I agree, but by then the damage would have been done (as it was here.)  I think the ABA needs to get involved and somehow require the military to require some form of hearing in court and some form of due process before taking one’s license or imposing sanctions.  This system is patently unfair.

  11. Phil Cave says:

    The solution is easy, and prior recommendations to that effect have been resisted by the TJAG’s.  Make CAAF the holder of the keys.  They as the military “Supreme Court” could then follow the procedures as are done in 50 states and several Commonwealth of America states where there is a combination of administrative and judicial due process. That would lead to uniform procedures and enforcement across the Services — ooops, did I just write uniform.  That will not happen unless Congress amends Article 27, IMHO.

    DP, I’m not sure you are completely right.  But it’s a rabbit trail I don’t think we want to go down on CAAFLog. 

  12. Dew_Process says:

    Phil – I agree with you 100% – it’s particularly bizarre in this case because Partington was in fact suspended by CAAF and subsequently re-instated.  Why that wasn’t the trigger for the Hawaii reciprocity action was never entirely clear.  Or the Navy could have done what the CG did to one of my clients – file the complaint directly with the State Bar Grievance Committee and waited to see the outcome of that process.

    @Just Sayin’ – you’re right and Partington had a very strong procedural DP issue — he repeatedly asked that they specify what provisions they were alleging he violated in the Rules of Professional Conduct and the specific “misconduct” involved and they refused to provide such.

    Just think if the US Attorney General could “suspend” you from practice in federal court — that would fly like the proverbial lead balloon!

  13. Charlie Gittins says:

    The disciplinary process in the Navy Department (yes, Navy and Marines) is an abortion.  Senior JAs apparently can not read their own rules or understand them — in either circumstance that is an embarrassment.  Then they have an “investigation” process that is a joke.  I am still trying to figure out how ONLY civilian counsel who is only one of several JAs who signed the pleading gets disciplined.  

    As one who has previously been caught in the discipline process where the OJAG could not even follow their own regs and correctly identify the Rules Counsel with responsibility to make an initial decision (of course it identifies that persons billet in the reg, after all), I was all about jumping into this case, but I had to disclose that I had been subject to this process and the US District Court is still trying to figure out what this means with regard to my admission — I had failed to pay the $25 every three years, so they had to “review” my re-admission.  What BS.  

     

  14. Just Sayin' says:

    part of the problem too is, what specific ethics training or experience does the Rules Counsel actually have?  Compare that to an ethics examiner is a state proceeding.  There’s no contest.

  15. Phil Cave says:

    In an earlier comment I noted the district court’s point about civilian counsel agree to be bound by the RofCourt and RofPR when entering a notice of appearance.

    Last Friday, Gov. Perry and others filed a lawsuit against VA.  The claim is they have been unlawfully denied a place on the VA Republican primary ballot.  The DC for EDVA rejected their suit.  See Perry, et. al. v. Judd.

    The court denied the injunction request on the equitable doctrine of laches.  Basically the court stated that they waited too long to challenge the rules.  They knew the rules going in, the accepted them, they played by them, but when it didn’t work out for them they filed suit — too late.

    Now I appreciate Mr. Partington was looking for more than an injunction.  But I’m further convinced that in order to challenge the application of the PR rules to civilian counsel you have to do, as I’m now aware one civilian attorney has (not me), object to the courts required notice of appearance that goes beyond the basic, “I’m admitted in X.”  Should the court then refuse to permit the civilian counsel to participate in the case a writ could be taken to the CCA and potentially there’d be a writ appeal petition to CAAF.