So finds the Court of Federal Claims in its decision in Helferty v. United States, No. 11-358C, __ Fed.Cl. __ (Nov. 15, 2013) (link to slip op.).

In 2005, Mr. Helferty was a 16-year enlisted member of the Navy who had risen to Aviation Ordnanceman First Class (E-6). In June of that year he was serving as a Substance Abuse Rehabilitation Program Counselor at the Naval Branch Clinic in Key West, FL, when he tested positive for the metabolite of cocaine during a random urinalysis. Mr. Helferty was offered and refused nonjudicial punishment, and was then processed for involuntary administrative separation.

Mr. Helferty was assigned military defense counsel, then-Lieutenant Spencer, JAG Corps, U.S. Navy. LT Spencer represented Mr. Helferty before an administrative discharge board conducted on September 27, 2005. The Government’s case consisted of the positive urinalysis. Mr. Helferty’s case consisted of his performance evaluations, a character statement from Mr. Helferty’s supervisor, evidence about prior errors at the drug testing laboratory, an unsworn statement from Mr. Helferty, and the results of a polygraph examination taken by Mr. Helferty at his own expense. “The proceeding lasted 55 minutes. The board deliberated for 45 minutes and returned a unanimous decision finding that the preponderance of the evidence supported drug abuse. They unanimously recommended separation via a general discharge.” Helferty, slip op. at 5 (citations to record omitted).

A year later, in October 2006, Mr. Helferty petitioned the Board for Correction of Naval Records (BCNR). Mr. Helferty alleged numerous errors, including that he received ineffective assistance of counsel from LT Spencer during the administrative board proceedings. The BCNR considered this assertion, applied the Strickland standard, and denied Mr. Helferty’s claim.

In Strickland v. Washington, 466 U.S. 668, 685-86 (1984), the Supreme Court explained that a person accused of a federal or state crime “is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair,” and that “the right to counsel is the right to the effective assistance of counsel.” The Court then established a two-part test for ineffective assistance of counsel: (1) that the counsel’s performance was so deficient that he was not functioning as counsel guaranteed by the Sixth Amendment (meaning that his performance fell measurably below an objective standard of reasonableness), and (2) that this deficient performance prejudiced the defense (meaning that but for the deficiency, the result would have been different). The client/appellant has the burden to prove both parts of the test.

In the military, administrative discharge boards are serious proceedings with lifelong consequences, and service members are detailed qualified military defense counsel to represent them before such boards. But whether a service member is entitled to “effective assistance of counsel” during such proceedings, and whether such a service member may complain of ineffective assistance under the Strickland standard, is a big question.

Until now.

In Helferty, the BCNR “assumed without deciding that the Strickland standard applied to Mr. Helferty’s ineffective assistance of counsel claim.” Slip op. at 8. The BCNR then rejected the claim on the basis that LT Spencer’s decisions were reasonable.

Mr. Helferty appealed to the Court of Federal Claims, and asked the court “to reach a decision on Mr. Helferty’s claim without addressing whether Mr. Helferty enjoys a Sixth Amendment right to effective assistance of counsel before the [administrative discharge board], stating that military record boards and judges of this court have applied Strickland in reviewing past separation proceedings.” Slip op. at 13.

But the court doesn’t follow the tradition of assuming that Strickland applies to such claims and conducting that analysis. Rather, the Court determines that Strickland doesn’t apply at all:

Because Strickland constitutes a test developed to pertain to criminal proceedings where the Sixth Amendment right to counsel is at issue, some courts have rejected application of Strickland to administrative proceedings, even those with significant consequences. In Williams v. Wynne, 533 F.3d 360, 369 (5th Cir. 2008), the Fifth Circuit held that “the Sixth Amendment right to effective assistance of counsel [does] not apply to the appellant’s non-criminal administrative discharge hearing.” Instead, the court in Williams applied a “competent (or qualified) counsel” standard in reviewing the representation that an Air Force Reservist received before an Air Force ADB. The Fifth Circuit applied that standard based on the language in the reservist’s Notification of Initiation of Separation Action, and it further stated that “[t]he right to have qualified counsel appointed does not necessarily create a coordinate right to effective assistance of counsel under the Sixth Amendment.” Cases in this court addressing claims under the Military Pay Act have applied the Strickland test to an administrative separation proceeding and to resignation in lieu of a court-martial, assuming but not deciding that it is the applicable test.

The analysis in Williams is persuasive. Mr. Helferty was ordered to be discharged through an administrative separation process regulated by provisions of the Naval Military Personnel Manual (“MILPERSMAN”), NAVPERS 15560D. His separation process specifically was governed by MILPERSMAN 1910-146, Separation By Reason of Misconduct – Drug Abuse. Mr. Helferty received notification of his impending hearing before the ADB via form NAVPERS 1910/31, which allowed him to elect “representation at an administrative board by qualified counsel.” MILPERSMAN 1900-010 defines key words for Article 1910. “Qualified counsel” means “[c]ounsel qualified per [Uniform Code of Military Justice] [A]rticle 27(b) who does not have any direct responsibility for advising the convening authority or separation authority on the proceedings involving the respondent.” Article 27(b) of the Uniform Code of Military Justice states that counsel:

(1) Must be a judge advocate who is a graduate of an accredited law school or is a member of the bar of a Federal court or of the highest court of a State; or must be a member of the bar of a Federal court or of the highest court of a State; and
(2) Must be certified as competent to perform such duties by the Judge Advocate General of the armed force of which he is a member.

Given this statutory language and the Sixth Amendment’s inapplicability to proceedings before administrative boards, Mr. Helferty’s claim is appropriately analyzed under the qualified counsel standard. In this context, qualified means competent, as recognized by the Fifth Circuit in Williams and by Article 27(b)(2) of the Uniform Code of Military Justice.

Slip op at 14 (numerous citations omitted) (emphases added).

The court then finds that, “Without a doubt, then-Lt. Spencer’s representation of Mr. Helferty before the ADB was less than perfect.” Slip op. at 15. However, the court concludes that, “Even assuming Mr. Helferty is correct in his assertions, then-Lt. Spencer satisfied the standards for ‘qualified counsel.’ He presented a rationale for his choices during the representation, and while the court disagrees with several of those decisions, it cannot find that then-Lt. Spencer breached his duties as Mr. Helferty’s counsel.” Slip op. at 17.

It’s hard to say whether this case would have turned out differently had the Court of Federal Claims found that Strickland applied and used that standard instead of the “qualified counsel” standard. The court doesn’t elaborate on the meaning of “qualified,” but implies that mere certification under Article 27 and the applicable service regulations is enough. However, the court also considers the actual performance of LT Spencer, seeking his rationale for certain decisions in a Strickland-like analysis (and throwing some perhaps unfair jabs at the now-LCDR along the way).

But virtually all appeals of involuntary administrative discharges are brought under the Military Pay Act (37 U.S.C. § 204), which creates a right to monetary damages if the involuntary separation of a service member is vacated due to an impropriety, and the Court of Federal Claims has jurisdiction over all but the smallest such claims (the 5th Circuit decided Williams as a mixed case that involved claims of employment discrimination). Accordingly, the Helferty decision will have wide application.

Mr. Helferty could appeal to the Court of Appeals for the Federal Circuit, but that’s likely a waste of time. Just last year that court determined “that the right to the effective assistance of counsel does not apply to proceedings before the [Court of Appeals for Veterans Claims]. Pitts v. Shinseki, 700 F.3d 1279, 1286 (Fed.Cir. 2012) cert. denied, 133 S. Ct. 2856 (2013). The Federal Circuit’s analysis in Pitts would easily apply to the facts of Helferty:

In determining the scope of the constitutional right to the effective assistance of counsel in civil cases, the courts have consistently held that where only property interests are at stake, there is no due process right to the effective assistance of counsel, regardless of how unique or important the property rights in question may be. Proceedings in veterans’ benefits cases are of course important to the claimants, but they are directed at the adjudication of property claims, not liberty interests. Based on that distinction, and the long line of precedents refusing to extend the constitutional right to counsel to benefits proceedings of that type, we reject Mr. Pitts’s contention that he is entitled to relief on appeal based on what he characterizes as ineffective assistance by his lawyer while representing him before the CAVC.

Pitts, 700 F.3d at 1286 (emphasis added).

So the decision of the Court of Federal Claims in Helferty, finding “the Sixth Amendment’s inapplicab[le] to proceedings before administrative boards,” and concluding that claims of deficient performance by military defense counsel before such boards are “appropriately analyzed under the qualified counsel standard,” is now clearly the rule.

15 Responses to “A service member facing involuntary administrative separation is entitled to “qualified counsel,” not the “effective assistance of counsel””

  1. some TC says:

    Court of Federal Claims decisions are, at best, persuasive authority–even for future cases before the Court of Federal Claims–right?

  2. Andy Pollock says:

    That is the truth for bid protest cases before CoFC.  Each judge is an island so to speak.

  3. Advocaat says:

    An admin board was the appropriate forum (I don’t think “naked” urinalysis cases should ever go to court), the respondent was able to present polygraph and GMC evidence, and the members concluded it was more likely than not he knowingly used cocaine and fired him.  Rather than blame his counsel by stretching the 6th Am beyond its intended coverage, I would suggest the respondent take a look in the mirror–the one that held his cocaine should do just fine.  This was the right decision all the way around.

  4. SeaLawyer says:

    Well when the client is unwilling or unable to provide more than two character witnesses, one of whom was his civilian girlfriend, and the other of whom gave him mediocre evals (as I recall), not a whole lot one can do…  I guess one disgruntled client of close to 200 isn’t too bad.  One of his main arguments to BCNR (made through his counsel) was that I should have argued that the low level of cocaine metabolite (which was pretty low, as coke pops go) came from the “fact” that all U.S. currency in circulation contains trace amounts of cocaine.  Yeh, that’s a winning argument…

  5. TC says:

    I’m not sure why it was necessary to include the DC’s name in this post.  I understand that it’s a matter of public record.  I understand that anyone who clicked on the link would see it anyway.  But I don’t see how inlcuding his name here, on a blog read by many of his peers, under a heading referencing IAC, adds to the analysis.

  6. SeaLawyer says:

    Thanks, TC.  I was wondering the same thing, but at least Zach did state that the court “[threw] some perhaps unfair jabs at the now-LCDR along the way.”  The court makes a number of factual misstatements in its opinion, which I won’t detail here.  One of them is the court’s reference to the 2 character witnesses being military; as I stated above, that’s false.  It was his civilian girlfriend and his then-OIC (who was less than unequivocal when I spoke with him and asked him why the character questionnaire he filled out was far more glowing than the Eval(s) he authored). 

  7. SeaLawyer says:

    In fact, several of the court’s factual misstatements are inexplicable, given the accuracy of the BCNR record.

  8. Phil Cave says:

    And did someone just out themself on CAAFLog for their call sign?  SL.  :-)

  9. SeaLawyer says:

    I’ve done it before, Phil.  :)  But that was a long time ago.

  10. Zachary D Spilman says:

    So, two notes.

    First, today I heard from a reader who told me (and he would know) that my statement that “virtually all appeals of involuntary administrative discharges are brought under the Military Pay Act (37 U.S.C. § 204)” is wrong. In his experience, many if not most such claims are made under the Administrative Procedure Act and in the district courts. A claimant doesn’t win monetary damages this way, but if the suit is successful and he is reinstated, he will receive back pay and allowances. So my broad statement about the role the Court of Federal Claims plays in these cases was wrong.

    But considering that the Court of Federal Claims relied on a case from the 5th Circuit, I still think Helferty is significant precedent, particularly when the Federal Circuit’s decision in Pitts is factored in. I suspect that this case means we’re at the end of administrative appeals boards (like the BCNR), federal courts, and other authorities (i.e., the professional responsibility folks) applying Strickland by default in cases like this.

    Second, I often struggle with the decision to name an individual in a blog post, and this case was no exception. Everyone makes mistakes (see, for example, the first paragraph of this comment), and the internet is awfully permanent. So I do often redact to just initials, even when the source documents use full names, usually based on my own notions of fairness.

    I struggled some with this case, but I decided that using the counsel’s name was not unfair for three reasons:

    1. This case involved a big dispute between client and counsel over the facts of what happened during the representation. Because it’s an Article III case, there are a lot of documents available to anyone with a PACER account. I pulled a few of these documents, read them, rolled my eyes, and decided to stick with the court’s interpretation.

    2. That interpretation is uniformly that while the counsel’s performance wasn’t “perfect,” it also wasn’t deficient. Practically speaking, this is what passes for high praise from a federal court (where there is no such thing as a “perfect” case; and where, “When a decision is announced, even in very complicated cases where batteries of lawyers have bombarded each other and the judges for weeks with careful argument and high megaton precedent, the opinion solemnly says that the losing argument was without merit, or devoid of merit, or had no merit.” David Mellinkoff, The Conscience of a Lawyer 8 (West Publishing 1973) (discussed here).). And yes, I do think the court threw some low blows at the counsel because…

    3. This case was about a 16-year E-6 who used cocaine while serving as a substance abuse counselor. Or at least he tested positive on a urinalysis, and while we can debate the reliability of these tests until the end of time, the typical panel member equates testing positive with using. With these incredibly aggravating facts and no plausible explanation (beyond “he didn’t do it”), and an astonishingly small number of character witnesses (I’d expect a 16-year E-6 to have character witnesses by the dozens), this counsel won his client a general discharge. If that’s not turning chicken shit into chicken sandwiches, I don’t know what is.

  11. stewie says:

    Look what better substance abuse counselor than someone who’s been there??!I mean would you take driving lessons from someone who’s never driven a car?I rest my case.

  12. TC says:

    I understand your reasoning for including the DC’s name.  But while you defend his performance in your comment here, that wasn’t the way it came across in the post. Also, the title of the post suggests that he was innefective, but was still qualified.  I understand that readers could certainly conclude otherwise, and probably did if they read the post, or the case, closely.  But since I don’t see how including his name contributed to the discussion at all, it seems like this would have been a situation where it was better left out. Sure, anyone could have found his name with a little effort, but many of your readers don’t bother going on Pacer, or even linking to cases that are so thoroughly summarized. Obvioulsy it’s your blog, that’s just my two cents. 

  13. DefenseHack says:

    The Sailor was a E6 after 16 years. That should send up some flags.To me, it sounds like the Navy JAG did all he could under the circumstances.

  14. Cap'n Crunch says:

    SL:  I wouldn’t take it too personally.  Every case I’ve ever lost (or won), was less than perfect.  I always second guess one spect or another.  I did not see the Court making any findings of deficient counsel.  What I see is an obviously guilty (and disgruntled) former client trying to wiggle out of an entirely appropriate outcome.  So don’t take it personally.

  15. Contract Lawyer says:

    Finally, something I can offer from my contract experience.  It is true that Court of Federal Claims (COFC) decisions are only persuasive authority.  They are not binding in Fed Dist courts and not even binding on other COFC judges.  Individual COFC judges differ in their opinions on a wide range of issues and when we have a bid protest or claim appeal at COFC, I tell the clients that it all depends on which judge we get.  An out of line judge does have limits, for example Judge Braden in the Axiom case.  CAFC is the appeal authority.  In Axiom they reversed Braden in the Axiom case and raked her over the coals in the decision.  The best part is that the rule in Axiom is now binding on all COFC judges and I do not care about the other circuits because all bid protests will be at GAO or the Fed Cir.  As a matter of policy, GAO follows CAFC.
    A note on CAFC appeals.  All you have to do is note your appeal.  You can do that pro se.   CAFC is the appeal authority for most VA claims and many veterans note the appeal without filing anything else – no brief and they do not even show up to the hearing.  The CAFC judges still make the Government brief the case and attend the hearing where they will grill the Govt attorneys for 20 minutes.  Veterans are quote successful at CAFC without ever filing briefs or showing up for the hearing.  Appeals to CAFC is a right, so you do not have to allege error or an appeal issue to get cert.  The Govt can also appeal to CAFC, but DOJ has to sponsor the appeal.  When we convince DOJ to appeal, the Government usually wins.  CAFC is also the appeal authority for the Armed Services Board of Contract Appeals, which is very contractor friendly.  At the annual board judges’ conference, they always have a panel after lunch that talks about the CAFC cases during the last year where CAFC scaled back all the good that the board was doing.  Prof. Ralph Nash even makes his rounds at all sorts of conferences to preach to Govt lawyers that just because we have the right to appeal, doesn’t mean we should. 
    I do not believe CAFC would be friendly to Helferty, but the process is there for him to easily appeal his case to CAFC.  This seems like an interesting issue to appeal to the SCOTUS, though the odds of getting cert are less than the chance of winning on the merits of the issue.