This December will be the third anniversary of our coverage of the continuing saga of civilian defense counsel Earle Partington, who was subjected to professional discipline by the Judge Advocate General of the Navy and then sued the JAG in federal court over that action (see all of our Partington coverage at this link; or read just this post for a background of the case).

But Mr. Partington now has company in his fight against the military justice system’s professional responsibility process. An Army judge advocate named Colonel Spelman, who pleaded guilty to adultery at a general court-martial last year (we mentioned the case in this post), was notified that the Army JAG intended to withdraw his 27(b) certification, indefinitely suspend him from practice under the JAG and before Army courts-martial, and notify his state licensing authorities of all that. In response, Colonel Spelman filed suit against the JAG in United States District Court for the District of Columbia (the “D.C. Circuit”), alleging violations of the Administrative Procedure Act and seeking a temporary restraining order and a preliminary injunction.

In an opinion dated November 2, 2013 (available here), District Judge Leon denied Colonel Spelman’s request for a PI and TRO.

Judge Leon’s opinion has the following interesting analysis:

Here, plaintiff alleges that he will be irreparably harmed by defendant’s imposition of professional discipline and subsequent notification of his court-martial conviction to his respective bar licensing authorities. According to plaintiff, if this Court does not issue preliminary injunctive relief, “[he] will be confronted with a situation in which the defendant has taken action without authorization, yet the plaintiff will [sic] no recourse, either with the Army, with his state and federal bar disciplinary authorities, or with respect to his reputation in his community and with his clients.” See PI Mot. at 16. I disagree.

Plaintiff’s allegations as to irreparable harm are not persuasive. First, preliminary injunctive relief cannot prevent TJAG from withdrawing plaintiffs certification under UCMJ Article 27(b) and indefinitely suspending him from practicing before Army Courts or under TJAG. Clearly, TJAG has that authority. Indeed, that disciplinary action was effectively taken by TJAG prior to the TRO hearing on August 26,2013, leaving as the only remaining issue TJAG’s notification of plaintiff’s bar licensing authorities. Plaintiff understandably fears that such notification could lead to reciprocal sanctions by his bar licensing authorities as well as possible reputational injury. See Pl.’s Reply [Dkt. # 13] at 9-11. This fear alone, however, is not enough to warrant such extraordinary relief, especially where plaintiff has not offered any evidence to substantiate his claim that such harm will likely occur. See Comm. in Solidarity with People of El Sal. (CISPES) v. Sessions, 929 F.2d 742,745-46 (D.C. Cir. 1991) (declining to issue injunctive relief “to prevent injuries neither extant nor presently threatened, but only merely feared”). Indeed, plaintiff acknowledged that he had already notified his bar licensing authorities and clients in 2012 of his general court-martial conviction, Compl. para. 43, and none of the authorities in the three states where plaintiff is licensed have taken any action, to date,
against him, Compl. para. 97. Moreover, as to possible reputational damage within his community, plaintiff has offered no evidence that such harm has either occurred or would likely be irreparable in nature. See Sampson v. Murray, 415 U.S. 61, 91 (1974); Deaver v. Seymour, 822 F.2d 66,69 (D.C. Cir. 1987).

Having failed to establish that irreparable injury would likely result from a denial of plaintiff s motion, the Court need not reach the other factors necessary to warrant preliminary injunctive relief. See CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738,747 (D.C. Cir. 1995).

Of note, Judge Leon was last mentioned in this post, as he ruled in favor of LtCol Mori (of Salyer fame) in his pursuit of remedial promotion consideration.

We’ll keep an eye on this case.

17 Responses to “A new collateral challenge to the military’s professional responsibiltiy system”

  1. Anonymous says:

    A little bit of the background of this case explains the severity of the Army JAG’s action.
    This was a case where the Colonel was convicted at GCM of what amounted to an extended sexual relationship with a female subordinate while he was the military commander of the Law and Order Task Force, Iraq.  He served confinement, but for whatever reason was not dismissed.  The relationship happened in the deployed AO, on a small FOB.  As you can expect, there are no secrets on small FOB, and there was the expected deleterious effect on the unit.  Eventually, after the relationship could no longer be denied, the subordinate – not the Colonel – had her tour cut short and was sent home (the prosecution happened years later).  The unit itself, while made up of good people trying to do their job, had a lot of internal problems.  Based on everything that came out, the Colonel’s actions caused a lot of problems among the officers and soldiers.  Maybe they did or didn’t come from the relationship itself, but it surely undermined his credibility.
    This looks to me like the Army JAG was taking the administrative action he could to address the command failure here.  The Colonel couldn’t be relieved for cause, as the unit is long gone.  He couldn’t address the problems at the GCM either.  After all, I don’t think “command failure” fits in a charge, and this arguably isn’t even dereliction of duty.  Instead, it is what our Navy friends call “loss of confidence”.  It sure looks like this is the Army JAG’s only administrative action he could take to address the Colonel’s failure as a commander.  I suspect the District Judge, who seems to be savvy on military justice matters, saw what was really happening and wouldn’t get involved in what really is an internal Army matter dealing with a command failure.

  2. johnny says:

    Although I am usually not a fan of adultery or prohibited relationship court-martials (reprimands or Article 15s are usually appropriate), I can see how a JA commander in a sexual relationship with a subordinate while deployed would cause problems warranting a court-martial.  Can’t say I feel bad for him.  Sexual relationships with subordinates (or clients) never end well…  Without knowing more facts regarding the circumstances, I think it is a stretch to portray her as a victim though.   

  3. Anonymous says:

    That’s very interesting.  I was there the entire period in question and had no idea there was an affair, despite considerable interaction with both parties.  Also…the “victim’s” tour was “cut short” due to a prolonged custody dispute with her ex-husband back in the states.  There is a lot more to this story, the details of the plea, and the nature of how it all came to light.  Suffice it to say, I disagree with your recollection of the facts, agree that calling the other party a “victim” is a stretch, and conclude by saying the PR process in all service branches is a goddamn joke.

  4. John O'Connor says:

    I see a big difference between Colonel Spellman and Earle Partington.  When someone is on active duty, the JAG 27(b) certification says this guy is appropriate to be assigned BY THE ARMY to units and soldiers needing assigned counsel (whether as a TC, DC, SJA, legal assistance lawyer, etc.).  If the JAG doesn’t have faith in the lawyer, I am hard-pressed to see why anyone (other than an officer senior to the JAG) should be able to second-guess the JAG’s determination that the Army should not be handing that lawyer out as counsel to anybody.  Challenging that seems a lot like me going to federal court to challenge a decision to assign me to legal assistance — it’s a manpower allocation issue that ought not be reviewable judicially.
     
    Partington, merits aside, is different because the action against him prevents someone from hiring him who would want to do so.  The military isn’t assigning Partington to represent anybody, and taking away his certification thus impacts the private decisions of others (court-martial accuseds) to hire him.  That said, it seems to me that the JAG ought to have a heavy dose of deference attached to his decisions, but I can see a reason for judicial review (even if very deferential) that I don’t really see in the case of an active duty officer with a law degree.

  5. Just Sayin' says:

    While I agree somewhat with your analysis, the individual in this case has already retired.  Therefore the only possible consequence is reciprocal discipline.  While I would agree a TJAG has an interest in regulating those who practice in Army courts, initiating a proceeding against a retiree who has no intent to practice in military courts, and has already reported his court martial conviction to his state bar authorities seems a little capricious, no?

  6. Just Sayin' says:

    Oh, and one more point, if I may…I would feel more comfortable about a lack of judicial review, if the service TJAGs did not have an established track record of using the PR process as a means to achieve goals that more scrutinized forums would make difficult.  If they did a better job following their own administrative procedures, adhering to burdens of proof, following established ethics cannons and not just saying “you’re guilty because we say so” I’d have less heartburn over the lack of effective judicial review…but since loss of one’s law license is a real possibility in these proceedings, and the service JAGs have been less than evenhanded in their application of the PR rules, perhaps judicial review for all is not a bad thing.

  7. AFSVC says:

    I don’t know enough about how state PR systems work but, if he has indeed already self-reported, then what would it matter if the Army also reports? Why would something necessarily happen now that hasn’t already happened?

  8. ArmyTC says:

    AFSVC, it matters because the states might see it as “imposed discipline” by another bar and impose reciprocal discipline on their own.

    BTW, wasn’t there an allegation in the charges that COL S assaulted the victim with a loaded firearm? I think that charge was dismissed, but he admitted to the conduct in the Stip.

  9. Just Sayin' says:

    My understanding is that many states will kind of rubber stamp reciprocal discipline situations, whereas criminal matters would be reviewed more carefully.  Therefore, reporting the conviction may not lead to any issues, but getting notice that there has been action taken on the attorney’s professional privileges might trigger a different result.  Of course this is all speculative.  But I do know that many states do not conduct de novo reviews of PR decisions from other jurisdictions…which makes the military system rather dangerous when they decide to play fast and loose with procedural requirements.

  10. Just Sayin' says:

    @ Army TC, I find that very…VERY hard to believe.  Do you have a source for that?  It is inconceivable to me that the Army would allow a senior officer to plead to adultery with a 3 month sentence if there had been a credible weapons charge.

  11. AFSVC says:

    @ArmyTC, I’m tracking now; appreciate the clarification.

  12. ArmyTC says:

    JS – I heard a rumor about this. That’s why I’m asking if anyone else has heard it. I actually wouldn’t be surprised at the result. Weirder things have happened.

  13. Dew_Process says:

    Having represented a number of lawyers, both active duty JAGs and not, before Disciplinary / Grievance Committees, if – as here – the conduct leading to the conviction [adultery] is not a crime in that State, that generally does not get them too worked up from a disciplinary perspective.
     
    However, if there is any disciplinary action imposed, that however triggers the “reciprocity” process.  But, reciprocity is still entitled to procedural due process considerations.  It is a convoluted area of Administrative Law; much dependent upon how the original ethic’s complaint is defended, e.g., if one “admits” to the ethical transgression in jurisdiction “A,” contesting it in jurisdiction “B” is likely to be frivolous.
     
    If, as one of the posters suggests, that COL S is already retired, the underlying question would seem to be, how does Art. 27(b), UCMJ, even apply to someone not on active duty?  He is not “available” to be detailed absent a recall to active duty as a judge advocate,  so from a federal litigation perspective, does his retirement ipso facto  terminate his 27(b) status?  And, under what authority post-retirement does TJAG derive any valid jurisdictional basis to “discipline” him?
     
    I think the issue here as some have implied, is more of a Due Process issue, viz., what “process” is available to contest / rebut the proposed TJAG action?  By way of an analogy, a couple of years ago, I represented an Air Force  pilot who was being forced to retire due to maxing out his time.  The command wanted to withdraw his aeronautical rating as part of the retirement process [to keep him from getting a civilian pilot job]. That triggered a procedural Due Process right to a Board of Officers, who in the end, voted to allow him to retire with his aeronautical rating because my client had not been in command of the airplane when the “safety” incident occurred, but was rather the co-pilot.
     
    My point with the above is that had the 27(b), action been instituted prior  to his retirement, subject to some bona fide  Due Process protections, TJAG may have been in a more defensible position.

  14. johnny says:

    @ArmyTC, if the assault allegation is true that would explain a lot.  I could not figure out why he pled guilty at all. 

  15. Just Sayin' says:

    hmmm.  I see my previous comment was deleted, therefore my most recent comment lacks context.  My point in calling the Army TJAG an alleged pederast is that I have about as much to back that up as you have to back up this firearm assault claim.  (hint: absolutely nothing).   It’s pretty dangerous to just throw rumors around like that when you have nothing to substantiate them.

  16. Anonymous says:

    Out of line. Way out. 

  17. Just Sayin' says:

    yes.  that’s the point.  It is way out of line to just throw baseless accusations and rumors around as if they are facts.